BATCH 1 5.
The Ambassador also stated that Colombia had qualified Torre as a political
01 THE ASYLUM CASE (COLOMBIA v. PERU) (GONZALES)
November 20, 1950 | International Court of Justice | Custom
PETITIONER: Colombia
RESPONDENT: Peru
SUMMARY: Peru issued an arrest warrant against Haya dela Torre in respect of the
crime of military rebellion which happened in Peru. Three months after the rebellion,
Torree fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador
confirmed that Torre was granted diplomatic asylum and requested safe passage for
Torre to leave Peru. However, Peru refused to accept the unilateral qualification and
refused to grant safe passage. The Colombian government claims that it had right to
grant asylum under agreements between the states and the regional custom in the
Latin American States.
The issue is WoN the Colombian government can grant asylum under regional
custom – NO. The Party which relies on a custom of this kind must prove that this
custom is established in such a manner that it has become binding on the other
Party… (that) it is in accordance with a (1) constant and uniform usage (2) practiced
by the States in question, and that this usage is (3) the expression of a right
appertaining to the State granting asylum (Colombia) and (4) a duty incumbent on
the territorial State (in this case, Peru). Furthermore, very few states had ratified the
conventions which Colombia relied on and there was significant discrepancy in the
practice of asylum. Even if Colombia could prove that such a regional custom
existed, it would not be binding on Peru, because Peru repudiated it by refraining
from ratifying the Montevideo Conventions of 1933 and 1939, which were the first
to include a rule concerning the qualification of the offence in matters of diplomatic
asylum.
DOCTRINE: The Party which relies on a custom of this kind must prove that this
custom is established in such a manner that it has become binding on the other Party
FACTS:
1. A military rebellion broke out in Peru. It was suppressed on the same day
and investigations were at once opened.
2. The President of the Republic of Peru issued a decree stating that a political
party, the American People's Revolutionary Alliance, was charged with
having organized and directed the rebellion. Its leaders would be brought to
justice in the national courts as instigators of the rebellion.
3. Haya de la Torre sought asylum in the Colombian Embassy in Lima, Peru.
4. The Colombian Ambassador confirmed that Torre was granted diplomatic
asylum in accordance with Article 2(2) of the Havana Convention on
Asylum of 1928 and requested safe passage for Torre to leave Peru.
refugee in accordance with Article 2 Montevideo Convention on Political
Asylum of 1933.
6. Peru refused to accept the unilateral qualification and refused to grant safe
passage.
ISSUES:
1. WoN Colombia is competent, as the country that grants asylum, to
unilateraly qualify the offense for the purpose of asylum under treaty
law and international law – NO
2. WoN Peru, as the territorial State, bound to give a guarantee of safe passage
– NO
3. WoN Colombia violated Article 1 and 2 (2) of the Havana Convention
when it granted asylum and WoN the continued maintenance of asylum a
violation of the treaty – YES
RULING: Dismissed
RATIO:
First Issue
1. The Colombian government has referred to the Bolivarian Agreement of
1911, Article 18: "Aside from the stipulations of the present Agreement, the
signatory States recognize the institution of asylum in conformity with the
principles of international law."
2. In recognizing "the institution of asylum", this article merely refers to the
principles of international law do not recognize any rule of unilateral and
definitive qualification by the State granting diplomatic asylum.
3. The Colombian Government has also relied on Article 4 of this Agreement
concerning extradition of a criminal refugee from the territory of the State
in which he has sought refuge.
4. In the case of extradition, the refugee is within the territory of the State of
refuge. A decision with regard to extradition implies only the normal
exercise of the territorial sovereignty. The refugee is outside the territory of
the State where the offence was committed, and a decision to grant him
asylum in no way derogates from the sovereignty of that State.
5. In the case of diplomatic asylum, the refugee is within the territory of the
State where the offence was committed. A decision to grant diplomatic
asylum involves a derogation from the sovereignty of that State. It
withdraws the offender from the jurisdiction of the territorial State and
constitutes an intervention in matters which are exclusively within the
competence of that State. Such a derogation from territorial sovereignty
cannot be recognized unless its legal basis is established in each particular
case.
6. The Colombian Government further relies on the Havana Convention on
Asylum of 1928. This Convention lays down certain rules relating to
diplomatic asylum, but does not contain any provision conferring on the
 State granting asylum a unilateral competence to qualify the offence with
definitive and binding force for the territorial State. The Colombian
Government contends, however, that such a competence is implied in that
convention and is inherent in the institution of asylum.
7. A competence of this kind is of an exceptional character. It involves a
derogation from the equal rights of qualification which, in the absence of
any contrary rule, must be attributed to each of the States concerned. Such a
competence is not inherent in the institution of diplomatic asylum.
8. The Colombian government has invoked Article 2, paragraph 1, of the
Havana Convention: "Asylum granted to political offenders in legations,
warships, military camps or military aircraft, shall be respected to the extent
in which allowed as a right or through humanitarian toleration, by the
usages, the conventions or the laws of the country in which granted and in
accordance with the following provisions:"
9. What the provision says in effect is that the State of refuge shall not
exercise asylum to a larger extent than is warranted by its own usages,
conventions or laws and that the asylum granted must be respected by the
territorial State only where such asylum, would be permitted according to
the usages, conventions or laws of the State of refuge.
10. The Colombian government has further referred to the Montevideo
Convention on Political Asylum of 1933.
11. The Montevideo Convention has not been ratified by Peru, and cannot be
invoked against that State.
12. The Colombian Government has finally invoked "American international
law in general". In addition to the rules arising from agreements which have
already been considered, it has relied on an alleged regional or local
custom peculiar to Latin-American States.
13. The Party which relies on a custom of this kind must prove that this
custom is established in such a manner that it has become binding on
the other Party. The Colombian Government must prove that the rule
invoked by it is in accordance with a constant and uniform usage
practiced by the States in question, and that this usage is the expression
of a right appertaining to the State granting asylum and a duty
incumbent on the territorial State. This follows from Article 38 of the
Statute of the Court, which refers to international custom "as evidence a
general practice accepted as law"
14. In support of its contention concerning the existence of such a custom, the
Colombian Government has referred to a large number of extradition
treaties which, as already explained can have no bearing on the question
now under consideration.
15. Colombian Government contends that Montevideo Convention of 1933 has
merely codified principles which were already recognized by Latin-
American custom, and that it is valid against Peru as a proof of customary
law.
16. The limited number of States which have ratified this Convention
reveals the weakness of this argument, and furthermore it is the
invalidated by the preamble which states that this Convention modifies
the Havana Convention.
17. Finally, the Colombian Government has referred to a large number of
particular cases in which diplomatic asylum was in fact granted and
respected.
18. But it has not shown that the alleged rule of unilateral and definitive
qualification was invoked or - if in some cases it was in fact invoked - that
it was, apart from conventional stipulations, exercised by the States granting
asylum as a right appertaining to them and respected by the territorial States
as a duty incumbent on them and not reason expediency.
19. The Court cannot therefore find that the Colombian Government has
proved the existence of such a custom.
20. But even if it could be supposed that such a custom existed between
certain Latin-American States only, it could not be invoked against
Peru which, far from having by its attitude adhered to it, has, on the
contrary, repudiated it by refraining from ratifying the Montevideo
Conventions of 1933 and 1939, which were the first to include a rule
concerning the qualification of the offence in matters of diplomatic
asylum.
21. For these reasons, the Court has arrived at the conclusion that Colombia, as
the State granting asylum, is not competent to qualify the offence by a
unilateral and definitive decision, binding on Peru.
Second issue
22. In its second submission, the Colombian Government asks the Court to
adjudge and declare that the Republic of Peru, as the territorial State, is
bound in the case now before the Court, to give the guarantees necessary for
the departure of M. Víctor Raúl Haya de la Torre from the country, with
due regard to the inviolability of his person."
23. There exists undoubtedly a practice whereby the diplomatic representative
who grants asylum immediately requests a safe-conduct without awaiting a
request from the territorial State, for the departure of the refugee. This
procedure meets certain requirements: the diplomatic agent is naturally
desirous that the presence of the refugee on his premises should not be
prolonged and the government of the country, for its part, desires in a great
number of cases that its political opponent who has obtained asylum should
depart. This concordance of views suffices to explain the practice which has
been noted in this connexion, but this practice does not and cannot mean
that the State, to whom such a request for a safe-conduct has been
addressed, is legally bound to accede to it.
24. In the present case, the Peruvian Government has not requested that Haya
de la Torre should leave Peru. It has contested the legality of the asylum
granted to him and has refused to deliver a safe-conduct. In such
circumstances the Colombian Government is not entitled to claim that the
Peruvian Government should give the guarantees necessary for the
 departure of Haya de la Torre from the country, with due regard to the
inviolability of his person.
Third Issue
25. Article 1 of the Havana Convention states that “It is not permissible for
States to grant asylum… to persons accused or condemned for common
crimes… (such persons) shall be surrendered upon request of the local
government.”
26. In other words, the person-seeking asylum must not be accused of a
common crime. Torre’s accusation related to a military rebellion, which the
court concluded was not a common crime and as such the granting of
asylum complied with Article 1 of the Convention.
27. Article 2 (2) of the Havana Convention states that “Asylum granted to
political offenders in legations, warships, military camps or military aircraft,
shall be respected to the extent in which allowed, as a right or through
humanitarian toleration, by the usages, the conventions or the laws of the
country in which granted and in accordance with the following
provisions: First: Asylum may not be granted except in urgent cases and for
the period of time strictly indispensable for the person who has sought
asylum to ensure in some other way his safety.”
28. An essential pre-requisite for the granting of asylum is the urgency or, in
other words, the presence of “an imminent or persistence of a danger for the
person of the refugee”. The facts of the case, including the 3 months that
passed between the rebellion and the time when asylum was sought, did not
establish the urgency criteria in this case.
29. Asylum may be granted on “humanitarian grounds to protect political
prisoners against the violent and disorderly action of irresponsible sections
of the population.” (for example during a mob attack where the territorial
State is unable to protect the offender). Torre was not in such a situation at
the time when he sought refuge in the Colombian Embassy at Lima.
30. The grant of asylum and reasons for its prolongation were not in conformity
with Article 2(2) of the Havana Convention.
Dissenting: Judge Alvarez
1. But if there is no customarv Latin-American international law on asylum,
there are certain practices or methods in applying asylum bvhich are
followed by the States of Latin America. Thesernay be summarized as
follows :
a. Asylum is granted only in cases of $olitical offence and not to
cornmon criminals.
b. Asylum is granted in accordance with the laws and usages of the
State of refuge, and it is for the latter to appreciate whether the
offence committed by the refugee is a political offence or a
common crime.
c. The territorial State may request the departure of the refugee from
its territory and the State of refuge may then require the former
State to deliver a safe-conduct enabling the refugee to leave the
country safely.
d. The State which granted asylum sometimes, with the same end in
view, requests that a safe-conduct be issued to the refugee.
Dissenting: Judge Badawi Pasha
1. But asylum as practised in America has been indissolubly bound to the
conception of revolution. On the one hand, it provided the social and
political usefulness referred to above, and on the other hand, it found a
general justification in the possibility of exceptional measures
2. It is as such that the exercise of asylum is so frequently and widely
recognized.
Dissenting: Judge Read
1. While 1 have concurred in the view of the majority of my colleagues that
Colombia has not established that there is a right of unilateral cilialification
or a right to safe-conduct based on customary law, there can be no doubt
about the existence of an "American" institution of asylum, an extensive
and persistent practice, based on positive Iaw, on convention and on
custom.
Dissenting: Judge Azevedo
1. What is the value, however, of such a custom as against conventions, and
even a complex of conventions, the signature and ratification of which
sometimes reveal a certain lack of consisteccy in the principles of the States
belonging to the group which establishes them ? There is no need to go into
the matter of the derogative action of treaties upon custom, nor into the
question of the compatibility of the two sources of law. It will be sufficient
to emphasize that treaties often embody principles already established by
custom, and thus have a declaratory effect with regard to customary rules.
This role is greater in a system where the field of written law is
progressively extended by the reception of new practices which have
manifested themselves in the interva
Dissenting: M. Castilla
1. In my opinion, diplomatic asylum is an international custom of Latin
America.
2. The custom was general ; all the Latin-American Republics recognized and
practised diplomatic asylum and all exercised the right to unilateral
qualification of the offence when circumstances required it. Mexico, the
Republics of Central America, Cuba, and the South American Republics are
all in the same position.
3. Finally, by recognizing the practice of asylum, the American Republics
accepted it as obligatory. Nothing is more remarkable in this respect than
the case of the Republic of Venezuela.
 NORTH SEA CONTINENTAL SHELF CASE
GERMANY vs. DENMARK AND NETHERLANDS (Gueco)
February 20, 1969 | Equidistant Principle, Opinio Juris
SUMMARY:
This case involves a dispute between Germany and Denmark, and Germany and
Netherlands. The said parties wish to delimit the north sea continental shelf but
are in disagreement as to what principle of international law to apply. Hence,
this case. According to Denmark and Netherlands, the equidistant-special
circumstances principle (see footnote 1 for the definition) in Art. 6(2) of the
Geneva Convention should be applied. The effect of this is that Germany would
get a smaller portion. Meanwhile, Germany argues that what should be applied
is the doctrine of just and equitable share where each of the States concerned
would have a “just and equitable share” in the available continental shelf, in
proportion to the length of its sea-frontage. It argues that the equidistant
principle cannot apply because of the existence of a special circumstance
negating its application. The ICJ ruled in favor of Denmark and Netherlands,
but it emphasized that the equidistant principle is only customary international
law. ISSUE: WON the equidistant principle applies—YES. WON the
equidistant principle is customary international law—YES. RULING: The
equidistant principle applies only in the absence of a delimitation agreement
between the parties. The contract between them shall always be the primordial
consideration for effecting delimitation. It is only in the absence of such
agreement can the equidistant method come in. In this case, there was no such
agreement as to the delimitation of the continental shelf.
As to the principle being customary international law: Even though the
equidistant principle isn’t binding as international law, it is, nevertheless, part of
customary law—it came about partly because of subsequent State practice, and
eventually became binding upon countries, even those not part of the Geneva
Convention.
DOCTRINE:
Test to determine the existence of Opinio Juris:
a. It must be of a fundamentally norm-creating character such as
one regarded as forming the basis of a general rule of law,
b. The States must conform to it because they feel a legal
obligation to do so, and
c. Time
FACTS:
1. The dispute in this case pertains to the delimitation of the continental shelf
between Germany and Denmark, and between Germany and the
Netherlands.
2. The parties, in filing this petition, asked the Court to state the principles and
rules of international law that is applicable, and thereafter carry out the
delimitation on that basis.
3. According to Denmark and Netherlands, the equidistant-special
circumstances principle1 in Art. 6(2) of the Geneva Convention should be
applied. The effect of this is that Germany would get a smaller portion.
4. Denmark and Netherlands argue that the configuration of the German North
Sea coast did not constitute, for either of the two boundary lines concerned,
a special circumstance; hence, it is only proper to apply the equidistant
principle.
5. Meanwhile, Germany argues that what should apply is the doctrine of just
and equitable share where each of the States concerned would have a “just
and equitable share” in the available continental shelf, in proportion to the
length of its sea-frontage.
6. Germany also contends that each of the States concerned is entitled to a
continental shelf area extending up to the central point of that sea, or at least
extending to its median line. It also claims that if the equidistance principle
were to be applied, the configuration of the German North Sea coast would
constitute a special circumstance which would justify a departure from that
method of delimitation in this particular case.
7. The ICJ ruled against Germany, but stated that the equidistant principle is
only customary international law which was not crystallized by the Geneva
Convention.
ISSUES:
1. WoN the equidistant principle applies in this case—YES.
2. WON the equidistant principle is customary international law—YES.
RATIO:
2. Art. 6(2) of the Geneva Convention embodies the equidistant principle,
which is subject to other agreements between the countries. It is contractual
in nature and based on equity. The article was framed to put second the
obligation to make use of the equidistant method, causing it to come after a
primary obligation to effect delimitation by agreement between the parties.
a. IN SHORT: The equidistant principle applies only in the absence
of a delimitation agreement between the parties. The contract
between them shall always be the primordial consideration for
effecting delimitation. It is only in the absence of such agreement
can the equidistant method come in.
3. In this case, there was no such agreement as to the delimitation of the
continental shelf.
4. As to the principle being customary international law: Even though the
equidistant principle isn’t binding as international law, it is, nevertheless,
1 It’s the rule that, in the absence of agreement by the parties to employ another method, all
continental shelf boundaries had to be drawn by means of an equidistance line, unless '"special
circumstances" were recognized to exist.
 part of customary law—it came about partly because of subsequent State
practice, and eventually became binding upon countries, even those not part
of the Geneva Convention.
5. Test to determine the existence of Opinio Juris:
a. It must be of a fundamentally norm-creating character such as one
regarded as forming the basis of a general rule of law,
b. The States must conform to it because they feel a legal obligation
to do so, and
c. Time
 Paquete Habana v. US (REINE)
January 8 1900 | Justice Gray | Customary International Law
PETITIONER: Paquete Habana & Lola
RESPONDENTS: US
SUMMARY: Paquete Habana & Lola were Spanish fishing vessels who would
leave Havana ports in order to fish. The 2 vessels were eventually captured as
prizes of war by US merchant vessels as part of Admiral William Sampson’s
(Sampson) blockade of Cuba who was ordered to execute the blockade in
pursuance of the laws of the US & the law of the nations applicable to such
cases.The vessels were placed within Cuba’s territorial waters at the onset of the
Spanish-American War & then taken to Key West where both vessels were
eventually auctioned by the district court as prize of war. They were not treated
as exempt to be seized to be treated as prizes of war.
The owners of the vessels however made an appeal to the circuit courts, citing a
long held tradition by nations of exempting fishing vessels from prize capture in
times of war. At the time of capture both vessels had no evidence of aiding the
enemy, and were unaware of the US naval blockade. No arms were found on
board, and no attempts were made to either run the blockade or resist capture.
The US SC held that there are no treaties of the US to the contrary of what is
stated in International Law. International Law is part of the law of the US and
must be ascertained & administered by the courts of justice of appropriate
jurisdiction as often as questions of right depending upon it are duly presented
for their determination. For this purpose, where there is no treaty, and no
controlling executive or legislative act or judicial decision, resort must be had to
the customs and usages of civilized nations.
DOCTRINE: Under international law, coastal fishing vessels pursuing their
vocation of catching & bringing in fresh fish have been recognized as exempt
with their cargoes & crews from capture as prize of war. International Law is
part of the law of the US ad must be ascertained & administered by the courts of
justice of appropriate jurisdiction as often as questions of right depending upon it
are duly presented for their determination.
FACTS:
1.) In April 1898, 2 fishing vessels, Paquete Habana & the Lola, that were flying
Spanish flags separately left Cuban ports in Havana in order to fish. The national
registry, the owners & commanders of Paquete Habana and the Lola were all
Spanish.
2.) The 2 vessels were eventually captured as prizes of war by US merchant vessels
as part of Admiral William Sampson’s (Sampson) blockade of Cuba who was
ordered to execute the blockade in pursuance of the laws of the US & the law of the
nations applicable to such cases.
3.) Neither Paquete Habana nor Lola had any knowledge of the existence of the wae
or of any blockade.
4.) The vessels were placed within Cuba’s territorial waters at the onset of the
Spanish-American War & then taken to Key West where both vessels were
eventually auctioned by the district court as prize of war.
5.) Both vessels were valued under the price of 2000 dollars and were thus not
originally thought to be exempt from seizures by stating that most are fishing
vessels. A final decree of condemnation & sale was entered since the court was not
satisfied that as a matter of law the fishing vessels were exempt from seizure since
there was no ordinance, treaty or proclamation that exempted such fishing vessels
6.) Sampson justified the seizures by stating that the vessels were manned by
excellent seamen, "liable for further service" as naval reserves, an asset that could
eventually be used against US interests in the Spanish-American War.
7.) The owners of the vessels however made an appeal to the circuit courts, citing a
long held tradition by nations of exempting fishing vessels from prize capture in
times of war. This "tradition", a primary example of customary international law,
dates back from an order by Henry IV in 1403, and has more or less been observed
by a large majority of States ever since.
8.) At the time of capture both vessels had no evidence of aiding the enemy, and
were unaware of the US naval blockade. No arms were found on board, and no
attempts were made to either run the blockade or resist capture.
ISSUE/s:
WoN under international law, fishing vessels pursuing their vocation of catching
& bringing in fresh fish are recognized as exempt, with their cargoes and crews
from capture as prize of war? YES exempt
RULING: WHEREFORE, there are no treaties of the US to the contrary, the Court
declares that the capture of these vessels are unlawful & the order of the lower court
is reversed with all the proceeds of rule restored to the claimant with damages &
costs.
Ratio:
1.) An ancient usage among civilized nations dating back to Great Britain & France.
In 1403, King Henry IV of England issued his officers leave fisherman alone during
times of war. He then signed a treaty with France reaffirming this act between both
parties. Again in 1521 between Emperor Charles V and Francis I of France a treaty
was assigned. This treaty was invoked due to a desperate rise in the markets for
herring. With the war between the two countries raging on, fisherman dared not
venture out to sea.
2.) It gradually ripened into a rule of international law where coastal fishing vessels,
pursuing their vocation of catching & bringing in fresh fish have been recognized as
exempt with their cargoes & crews from capture as prize of war as stated in
Customary International Law.
3.) ) There is no specific US law defining a prize of war.
4.) There are factors that will determine if something is customary international law
and in this case, the Court found (a) There was State practice by a number of
different countries that commercial fishing vessels were exempt (b) There was
repetition of this practice over a period of time.
5.) International Law is part of the law of the US and must be ascertained &
administered by the courts of justice of appropriate jurisdiction as often as questions
of right depending upon it are duly presented for their determination. For this
purpose, where there is no treaty, and no controlling executive or legislative act or
judicial decision, resort must be had to the customs and usages of civilized nations;
and, as evidence of these, to the works of jurists and commentators, who by years of
labor, research and experience, have made themselves peculiarly well acquainted
with the subjects of which they treat. Such works are resorted by judicial tribunals,
not for the speculations for their authors concerning what the law ought to be, but for
trustworthy evidence of what the law really is.
6.) The rule of International Law concerning fishing vessels is one which courts are
bound to take judicial notice of & to give effects to, in the absence of any treaty or
other public act of their own gov’t in relation to that matter.
7.) In this case, Paquete & Lola were proved to be coastal fishing vessels & their
cargoes consisted of fresh fish which were brought on board & kept & sold alive.

DISSENT JUSTICE FULLER:

1.) The vessels were engaged in what were substantially commercial ventures, and
the mere fact that the fish were kept alive by contrivances for that purpose-a practice
of considerable antiquity-did not render them any the less an article of trade than if
they had been brought in cured
2.) The considerations which have operated to mitigate the evils of war in respect of
individual harvesters of the soil can properly be invoked on behalf of these hired
vessels, as being the implements of like harvesters of the sea. Not only so as to the
owners, but as to the masters and crews. The principle which exempts the
husbandman and his instruments of labor exempts the industry in which he is
engaged, and is not applicable in protection of the continuance of transactions of
such character and extent as these.
3.) In truth, the exemption of fishing craft is essentially an act of grace, and not a
matter of right, and it is extended or denied as the exigency is believed to demand.
4.) The rule is that exemption from the rigors of war is in the control of the
Executive. He is bound by no immutable rule on the subject. It is for him to apply, or
to modify, or to deny altogether such immunity as may have been usually extended.
5.) Exemptions may be designated in advance, or granted according to
circumstances, but carrying on involved the implication of the hardships of war, at
least to the extent that the seizure or destruction of enemy's property on sea need not
be specifically authorized in order to be accomplished.
 The Case of the S.S. Lotus (France v. Turkey) (Steph)
September 7, 1927 | Custom
PETITIONER:France
RESPONDENTS: Turkey
SUMMARY: On the way to Constantinople, while it was sailing the High Seas (no
nation has criminal jurisdiction over this territory) the French mail steamer Lotus
and the Turkish collier “Boz-Kourt” collided with each other. The Boz Kourt was
cut in two, sank, and eight Turkish nationals died. Upon arriving in Constantinople,
the Turkish authorities held an inquiry into the collision, and instituted joint criminal
proceedings in accordance with Turkish law against the captain of the Boz Kourt
and the officer on watch on board the Lotus, Lietenant Demons (French citizen).
The Court found that Turkish jurisdiction was justifiable not because of the
nationality of the victims but because the effects of the offence were produced on
a Turkish ship, and consequently, in a place "assimilated to Turkish territory
in which the application of Turkish criminal law cannot be challenged". Once it
was admitted that the effects of the offence were produced on the Turkish vessel, it
became impossible to hold that there was a rule of international law that
prohibited Turkey from prosecuting Lieutenant Demons simply because the
author of the offence was on board the French ship.
DOCTRINE:
Opinio juris is not only reflected by acts of States, but also by its omissions
(simply: custom is shown by both what you do, and what you don’t do)
FACTS:
1. On the way to Constantinople, while it was sailing the High Seas (no nation
has criminal jurisdiction over this territory) the French mail steamer Lotus
and the Turkish collier “Boz-Kourt” collided with each other. The Boz
Kourt was cut in two, sank, and eight Turkish nationals died. The Lotus did
everything it could do to hep and saved 10 people.
2. During the time of the collision Monsieur Demons, a French lietenant in the
merchant service and the first officer of the ship, was officer of the watch
(basically siya taga bantay na wala silang mababangga).
3. Upon arriving in Constantinople, the Turkish authorities held an inquiry
into the collission, and instituted joint criminal proceedings in accordance
with Turkish law against Monsieur Demons.
4. He was placed under preventive imprisonment without previous notice to
the French Consul-General.
5. He objected the jurisdiction of the Turkish Court, but was overruled. He
was able to apply for bail tho!
6. His arrest led to the French to protest against the arrest, demand his
release, and transfer the case to the French Courts.
7. Both parties consented to submitting the matter to the Hague.
8. France comes before this court with a prayer to rule that jurisdiction over
the criminal case belongs to French Courts. It banks its position on the
“Convention respecting conditions of residence and business and
jurisdiction” signed at Lausanne (Convention of Laussane), which does
not allow Turkish Courts to take cognizance of criminal proceedings
directed against a French citizen for crimes committed outside Turkey..
9. On the other hand, Turkey prays for the Court to rule that jurisdiction
belongs to Turkish Courts.
ISSUE/s:
1. WoN Turkey has jurisdiction over the French national Monsieur Demons -
YES
RULING: (I paraphrased, it’s quite hard to understand) Flag State (France) is not
entitled to exercise exclusive jurisdiction because Turkey is given a measure of
discretion to prosecute criminal cases beyond its territory, on the High Seas, for
a crime committed against its vessel the Boz Kourt.
RATIO:
1. To ascertain whether France or Turkey was right, the Court looked at
Custom, but first explained jurisdiction.
2. The first and foremost restriction imposed by international law upon a State
is that it may not exercise its power in any form in the territory of another
State. In this sense jurisdiction is certainly territorial.
3. But despite being territorial, States are given a wide measure of
discretion in exercising its jurisdiction beyond its territory, like in this
case on the High Seas; and such discretion is only limited by rules laid
down by treaties that expressly prohibit such exercise of discretion.)
4. The territoriality of criminal law, therefore, is not an absolute principle of
international law and by no means coincides with territorial sovereignty.
5. The Court cited this custom: It is certain that the courts of many countries,
even of countries which have given their criminal legislation a strictly
territorial character, interpret criminal law in the sense that offences, the
authors of which at the moment of commission are in the territory of
another State, are nevertheless to be regarded as having been committed in
the national territory, if one of the constituent elements of the offence, and
more especially its effects, have taken place there.
6. Applying this custom, seeing the effects of the offence were produced
on the Turkish vessel, it becomes impossible to believe that there is a
rule of international law which prohibits Turkey from prosecuting
Lieutenant Demons because of the fact that the author of the offence
was on board the French ship.
7. France tried to prove that it the flag state’s jurisdiction over its nationals is
exclusive, but failed. It claimed that questions of jurisdiction in collision
cases were rarely encountered in the practice of international law, and
therefore, prosecutions only occurred before the courts of the State whose
flag is flown, which proved a tacit adherence by States to the rule of
exclusive jurisdiction granted to the Flag State of the vessel.
8. The court rejected this and said on the contrary, this omission shows
opinio juris (belief that a particular action is an obligation) as well—
that in collision cases, the Flag State generally doesn’t exercise
exclusive jurisdiction.
1. Applying this to the present case, the Flag State (France) is not
entitled to exercise exclusive jurisdiction because Turkey is
given a measure of discretion to prosecute criminal cases
beyond its territory, on the High Seas, for a crime committed
against its vessel the Boz Kourt.
 CASE CONCERNING RIGHT TO PASSAGE OVER INDIAN
TERRITORY
PORTUGAL V. INDIA (CARLO)
April 12, 1960| Internation Court of Justice| Customs
PETITIONER: PORTUGAL
RESPONDENTS: INDIA
SUMMARY: Portugal claims a right of passage between Daman and the
enclaves, and between the enclaves, across intervening Indian territory, to the
extent necessary for the exercise of its sovereignty. The extent of the right of
passage includes private persons, civil official, general goods, armed forces,
armed police and arms and ammunitions. Portugal hinges its claim based on the
Treart of Poona of 1779 and on 2 sanads (decrees) stating that these conferred
sovereignty to Portugal over the enclaves with the right of passage to them. India
objects on the ground that the Treaty of 1779 was not validly entered into and
never became a treaty. Furthermore, the sanads didn’t conferred sovereignty
over the enclaves but it was only a revenue grant to Portugal. Court ruled that
indeed, the Treaty of 1779 and the sanads didn’t gave Portugal sovereignty over
the enclaves but the situation changed when the British came in. Because of this,
the court examined the Portugal’s claim based on the practices which prevailed
during the British and post-British periods. The issue in this case is WoN the
Government of Portugal can claim right of passage over the enclaves – YES
BUT THE RIGHT ONLY APPLIES TO PRIVATE PERSONS, CIVIL
OFFICIALS AND GOODS IN GENERAL
The Court said that there exists a common ground between the Portugal and
Great Britain that the passage of private persons and civil officials was not
subject to any restriction beyond routine control during/post British Period. The
same is true for general goods which also passed freely during the periods in
question. However, it was different for the passage of armed forces, armed
police and arms and ammunitions. With regard to armed forces, Par 3 of Art
XVIII of the Treaty of Commerce and Extradition provides that armed forces of
the Government of Great Britain and Portugal should not enter the Indian
dominions of the other expect for certain situations (See Ratio #6). Regarding
armed police, it is in the same position as that of the armed forces, passage of
which is based on reciprocity and not a right. Exportation of arms and
ammunition is also prohibited as stated in the same Treaty (Same Treaty
pertaining to armed forces and armed police)
DOCTRINE: Customs or Practices between countries can be a source of
International Law.
FACTS:
1. The present dispute was referred to the Court by an Application
filed on 22 December 1955 by the Government of Portugal.
2. In that Application the Govemment of the Portuguese Republic
states that the territory of Portugal in the Indian Peninsula is made
up of the three districts of Goa, Daman and Diu. It adds that the
district of Daman comprises, in addition to its littoral territory,
two parcels of territory completely surrounded by the territory of
India which constitute enclaves: Dadra and Nagar-Aveli. It is in
respect of the communications between these enclaves and Daman
and between each other that the question arises of a right of passage
in favour of Portugal through Indian territory, and of a correlative
obligation binding upon India
3. Portugal claims a right of passage between Daman and the enclaves,
and between the enclaves, across intervening Indian territory,
to the extent necessary for the exercise of its sovereignty over
the enclaves, subject to India's right of regulation and control of
the passage claimed, and without any immunity in Portugal's
favour.
4. The right of passage in this Application pertains to private persons, civil
officials, goods in general, armed forces, armed police, and arms and
ammunitions
5. In support of its claim, Portugal relies on the Treaty of Poona of
1779 and on sanads (decrees), issued by the Maratha ruler in 1783
and 1785, as having conferred sovereignty on Portugal over the
enclaves with the right of passage to them
6. India objects on various grounds that what is alleged to be the
Treaty of 1779 was not validly entered into and never became in
law a treaty binding upon the Marathas.
7. India contends further that the Treaty and the two sanads of 1783
and 1785 taken together did not operate to transfer sovereignty
over the assigned villages to Portugal, but only conferred upon it,
with respect to the villages, a revenue grant of the value of 12,000
rupees per annum called a jagir or saranjam
8. The Court said that the Treaty of 1779 and the sanads of
1783 and 1785 were intended by the Marathas to effect in favour of
the Portuguese only a grant of a jagir or saranjam, and not to
transfer sovereignty over the villages to them.
9. However, the situation underwent a change with the advent of the
British as sovereign of that part of the country in place of the
Marathas.
10. The British found the Portuguese in occupation of the
villages and exercising full and exclusive administrative authority
over them. They accepted the situation as they found it and left the
Portuguese in occupation of, and in exercise of exclusive authority
over, the villages. The Portuguese held themselves out as sovereign
over the villages. The British did not, as successors of the Marathas,
themselves claim sovereignty, nor did they accord express recognition
of Portuguese sovereignty, over them. The exclusive authority
of the Portuguese over the villages was never brought in question.
 Thus, Portuguese sovereignty over the villages was recognized by
the British in fact and by implication and was subsequently tacitly
recognized by India
11. For this reason, the Court said that it will proceed to examine whether
such right as is claimed by Portugal is established on the basis of the
practice that prevailed between the Parties during the British and post-
British periods in respect of each of these categories.
ISSUE/S:
Won the Government of Purtugal can claim right of passage over the
enclaves – YES BUT THE RIGHT ONLY APPLIES TO PRIVATE PERSONS,
CIVIL OFFICIALS AND GENERAL GOODS
RULING:
Government of Portugal can claim right of passage over the enclaves, but the
right only extends to private persons, civil officials and general goods
RATIO:
1. It is common ground between the Parties that the passage of
private persons and civil officials was not subject to any restrictions,
beyond routine control, during these periods. There is nothing on the
record to indicate the contrary.
2. Goods in general, that is to say, al1 merchandise other than arms
and ammunition, also passed freely between Daman and the enclaves
during the periods in question, subject only, at certain times,
to customs regulations and such regulation and control as were
necessitated by considerations of security or revenue.
3. The general prohibition of the transit of goods during the Second World
War and prohibitions imposed upon the transit of Salt and, on certain
occasions, upon that of liquor and materials for the distillation of liquor,
were specific measures necessitated by the considerations just referred to.
The scope and purpose of each prohibition were clearly defined. In al1 other
cases the passage of goods was free. No authorization or licence was
required.
4. The Court, therefore, concludes that, with regard to private
persons, civil officials and goods in general there existed during the
British and post-British penods a constant and uniform practice
allowing free passage between Daman and the enclaves. This practice
having continued over a period extending beyond a century and a
quarter unaffected by the change of regime in respect of the
intervening territory which occurred when India became independent,
the Court is, in view of all the circumstances of the case, satisfied that
that practice was accepted as law by the Parties and has given rise to a
right and a correlative obligation.
5. As regards armed forces, armed police and arms and ammunition,
the position is different. It appears that during the British period up to 1878
passage of armed forces and armed police between British and Portuguese
possessions were regulated on a basis of reciprocity. No distinction
appears to have been made in this respect with regard to passage
between Daman and the enclaves. There is nothing to show that
passage of armed forces and armed police between Daman and the
enclaves or between the enclaves was permitted or exercised as of
right
6. Furthermore, Paragraph 3 of Article XVIII of the Treaty of Commerce
and Extradition of 26 December 1878 between Great Britain and
Portugal laid down that the armed forces of the two Governments
should not enter the Indian dominions of the other, except for the
purposes specified in former Treaties, or for the rendering of mutual
assistance as provided for in the Treaty itself, or in consequence of a formal
request made by the Party desiring such entry. Subsequent correspondence
between the British and Portuguese authorities in India shows that this
provision was applicable to passage between Daman and the enclaves.
7. Regarding armed police, the position was similar to that of
armed forces. The Treaty of 1878 regulated the passage of armed
police on the basis of reciprocity. Paragraph 2 of Article XVIII of
the Treaty made provision for the entry of the police authorities
of the parties into the territories of the other party for certain
specific purposes, e.g., the pursuit of criminals and perçons engaged
in smuggling and contraband practices, on a reciprocal basis
8. Both with regard to armed forces and armed police, no change
took place during the post-British period after India became
independent
9. As regards arms and ammunition, paragraph 4 of Article XVIII
of the Treaty of 1878 provided that the exportation of arms, ammunition
or artilitary stores from the territories of one party to those
of the other "shall not be permitted, except with the consent of,
and under rules approved of by, the latter".
10. The Court is, therefore, of the view that no right of passage in
favour of Portugal involving a correlative obligation on India has
been established in respect of arrned forces, armed police, and arms
and ammunition. The course of dealings established between the
Portuguese and the British authorities with respect to the passage
of these categories excludes the existence of any such right. The
practice that was established shows that, with regard to these categories,
it was well understood that passage could take place only by
permission of the British authorities. This situation continued
during the post-British period.
11. Thus, the Court arrived at the conclusion that the course of dealings
between the British and Indian authorities on the one hand and the
Portuguese on the other established a practice, well understood
between the Parties, by which Portugal had acquired a right of passage
in respect of private perçons, civil officials and goods in general
 NEW ZEALAND VS. FRANCE; AUSTRALIA VS. FRANCE [NUCLEAR
TESTS] (ARIELLE)
December 20, 1974| ICJ | Treaties
PETITIONER: New Zealand, Australia
RESPONDENTS: France
SUMMARY: In these two cases, Australia and New Zealand applied to the ICJ
to enjoin France from conducting nuclear tests at the South Pacific region.
Before the case could be completed, France made open declarations that it will
cease to conduct nuclear tests, so it moved for the dismissal of the case. The
Court held in this case that since France has already made a unilateral
declaration of not conducting nuclear tests anymore, the dispute has already
disappeared so there is no more need for a judgment. Moreover, once the Court
has found that a State has entered into a commitment concerning a future
conduct, it is not the Court’s function to contemplate that it will not comply
with it.
DOCTRINE: A declaration made through unilateral acts may have the effect of
creating legal obligations.
FACTS:
New Zealand vs. France
1. In its judgment in the case concerning Nuclear Tests, the Court found that
the claim of New Zealand no longer had any object and that the Court was
not called upon to give a decision.
2. Before turning to the questions of jurisdiction, the Court has to first
consider whether there is a dispute and to analyze the claim submitted to
it.
3. On December 20, 1974, the Court made two Orders regarding applications
submitted by the Government of Fiji for permission to intervene in the two
cases concerning Nuclear Tests.
4. On May 9, 1973, New Zealand instituted proceedings against France in
respect of French atmospheric nuclear tests in the South Pacific. New
Zealand relied on the General Act for the Pacific Settlement of International
Disputes conclude at Geneva.
5. France then stated that it considered that the Court was not competent in the
case, and that it could not accepts its jurisdiction.
6. New Zealand having requested the Court to indicate interim measures of
protection, the Court indicated that France should avoid nuclear tests
causing the deposit of radio-active-fall-out on the territory of New Zealand.
7. However, New Zealand reported several series of atmospheric tests that
took place.
8. New Zealand submitted that the Court had jurisdiction and that the
application was admissible. France did not file any counter-memorial and
was not represented at the hearings.
9. The case concerns the jurisdiction of the Court and the admissibility of the
application. In such questions, the Court is entitled to go into other
questions which may not be strictly capable of classification as matters of
jurisdiction or admissibility but are of such nature as to require
examination.
10. In its application, Australia asks the Court to adjudge and declare that the
carrying out of further atmospheric nuclear weapon tests in the South
Pacific Ocean is not consistent with applicable rules of international law,
and to order that the French shall not carry out any further tests.
11. New Zealand, on the other hand, asks the Court to adjudge and declare that
the conduct by the French Government of nuclear tests in the South Pacific
Region is a violation of New Zealand’s rights under international law.
12. It is essential to consider whether the applicant requests a judgment which
would only state the legal relationship between the parties or a judgment
requiring one of the parties to take, or refrain from taking, some action.
13. The Court has the power to interpret the submissions of the parties. In the
present case, if account is taken as as a whole, the diplomatic exchanges
between the parties, it becomes evident that the applicant’s original and
ultimate objective was to obtain a termination of French atmospheric
nuclear tests in the South Pacific.
14. In these circumstances, the Court is bound to take note of further
developments, like the statements by French authorities.
15. It is essential to consider whether the applicant requests a judgment which
would only state the legal relationship between the parties or a judgment
requiring one of the parties to take or refrain from doing an action.
ISSUE/s:
1. WoN the ICJ can decide on this case – NO because the dispute already
disappeared.
2. WoN a declaration made through a unilateral act have an effect of creating
legal obligations – YES
RULING: The claim no longer has any object and therefore the Court is not called
upon to give a decision thereon.
RATIO:
1. In the present case, if account is taken of the application as a whole, the
diplomatic exchanges between the parties reveal that the applicant’s main
objective is to obtain a termination of French atmospheric nuclear tests in
the South Pacific.
2. The Court is then bound to take note of prior and and subsequent oral
proceedings.
3. France has expressed that in view of the stage reached in carrying out its
nuclear defense programme, France will be in a position to pass on to the
stage of underground explosions as soon as the series of tests planned for
this summer is completed. (In short, France said that they will stop the
 nuclear tests as soon as the tests for the summer are completed.) statement made by the President of France must be held to constitute and
4. It is well recognized that declarations made by way of unilateral acts, engagement of the State in regard to the circumstances and intention with
may have the effect of creating legal obligations. The intention of being which they were made.
bound is to be ascertained by an interpretation of the act. 4. The unilateral statements made by French authorities were first relayed to
5. The binding character of the undertaking results from the terms of the act the government of Australia. There was no need for the statements to be
and is based on good faith. Interested states are entitled to require that the directed to any particular state for it to have legal effect. The general nature
obligation be respected. and characteristics of the statements alone were relevant for evaluation of
6. New Zealand, while recognizing the possibility of the dispute being their legal implications.
resolved by a unilateral declaration on the part of France, has stated that the
possibility of further atmospheric tests has been left open.
7. The Court must, however, from its own view of the meaning and scope
intended to be given to these unilateral declarations.
8. France has conveyed to the world at large its intention to terminate
atmospheric tests.
9. It was bound to assume that other States might take note of these
statements and rely on their being effective. It is true that France has not
recognized that it is bound by any rule of international law to terminate its
tests, but this does not affect the legal consequences of the statements in
question.
10. The Court finds that France has undertaken the obligation to hold no further
nuclear tests in the atmosphere in the South Pacific.
11. New Zealand sought an assurance from France that the tests would cease
and France has made statements to the effect that they will stop.
12. The Court concludes that France has assumed an obligation as to
conduct, concerning the effective cessation of the tests, and the fact that
New Zealand has not exercised its right to discontinue the proceedings
does not prevent the Court from making its own findings.
13. As a court of law, it is called upon to resolve existing disputes between
States: these disputes must continue to exist at the time when the Court
makes its decision.
14. In the present case, the dispute having disappeared, the claim no longer
has any object and there is nothing on which to give judgment.
15. Once the Court has found that a State has entered into a commitment
concerning a future conduct, it is not the Court’s function to contemplate
that it will not comply with it.
16. For these reasons, the Court finds that the claim no longer has any object
and that it is therefore not called upon to give a decision thereon.

Australia vs. France

1. A series of nuclear tests were completed by France in the South Pacific,
which made Australia, together with New Zealand, apply to the ICJ
demanding that France cease the test.
2. Before the case could be completed, France made declarations and
announced that it had completed the test and did not plan to conduct further
tests. France moved for the dismissal of the application.
3. France’s declaration may have the effect of creating legal obligations. The
 007 Nicaragua vs. US (Loyola)
June 27, 1986 | Military and parliamentary activities
PETITIONER: Republic of Nicaragua
RESPONDENTS: United States of America
SUMMARY: The US was initially supportive of the new government in Somoza but
this changed. The US decided to plan and undertake activities directed against
Nicaragua. The issue is WoN the United States breached its customary international
law obligation, which is not to intervene in the affairs of another State? Yes it
violated its international obligation by attacking Nicaragua, directed or authorized its
aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters
of Nicaragua and its territorial sea.
DOCTRINE: If one State, with a view to the coercion of another State, supports and
assists armed bands in that State whose purpose is to overthrow the government of
that State, that amounts to an intervention by the one State in the internal affairs of
the other, whether or not the political objective of the State giving such support and
assistance is equally far reaching.
FACTS:
7. In 1979 the Government of President Somoza collapsed following an armed
opposition led by the Frente Sandinista de Liberacibn Nacional (FSLN)
8. FSLN – began to meet armed opposition from supporters of
9. the former Somoza Government and ex-members of the National Guard
10. US – initially supportive of the new government – changed its attitude
when, according to the United States, it found that Nicaragua was providing
logistical support and weapons to guerrillas in El Salvador
11. In 1981 it terminated United States aid to Nicaragua and in September
1981, according to Nicaragua, the United States “decided to plan and
undertake activities directed against Nicaragua”
12. Armed opposition to the new Government was conducted mainly by Fuerza
Democratica Nicaragüense (FDN) and Alianza Revolucionaria Democratica
(ARDE)
13. United States officially acknowledged its support (In 1983 budgetary
legislation enacted by the United States Congress made specific provision
for funds to be used by United States intelligence agencies for supporting
“directly or indirectly military or paramilitary operations in Nicaragua)
14. Nicaragua also alleged that some attacks were carried out by United States
military – with the aim to overthrow the Government of Nicaragua.
15. United States did not appear before the ICJ at the merit stages, after refusing
to accept the ICJ’s jurisdiction to decide the case
16. United States relied on an inherent right of collective self-defense
guaranteed in A. 51 of the UN Charter by “providing, upon request,
proportionate and appropriate assistance...” to Costa Rica, Honduras and El
Salvador in response to Nicaragua’s alleged acts aggression against those
countries
ISSUE/s:
WoN the US breached its customary international law obligation – not to intervene
in the affairs of another State – when it trained, armed, equipped, and financed the
contra forces or encourage, supported and aided the military and paramilitary
activities against Nicaragua - YES
RULING: The Court is requested to adjudge and declare that compensation is due to
Nicaragua, the quantum thereof to be fixed subsequently, and to award to Nicaragua
the sum of 370.2 million US dollars as an interim award.
RATIO:
1. The court held that the United States breached its customary international
law obligation – not to use force against another State: (1) when it directly
attacked Nicaragua in 1983 – 1984; and (2) when its activities with the
contra forces resulted in the threat or use of force
1. The prohibition on the use of force is found in Article 2(4) of the
UN Charter and in customary international law. United States
violated the customary international law prohibition on the use of
force when it laid mines in Nicaraguan ports. It violated this
prohibition when it attacked Nicaraguan ports, oil installations and
a naval base
2. United States could not justify its military and paramilitary activities on the
basis of collective self- defense.
1. United States, at an earlier stage of the proceedings, had asserted
that the Charter itself acknowledges the existence of this
customary international law right when it talks of the “inherent”
right of a State under Article 51 of the Charter
2. When a state claims that it used force in collective self-defense, the
Court would look into two aspects:
1. Whether the circumstances required for the exercise of
self-defense existed and
2. Whether the steps taken by the State, which was acting in
self-defense, corresponds to the requirements of
international law (i.e. did it comply with the principles of
necessity and proportionality)
3. None of the countries who were allegedly subject to an armed
attack by Nicaragua
1. declared themselves as a victim of an armed attack or
request assistance from the United States in self-defense –
at the time when the United States was allegedly acting in
collective self- defense; and
2. the United States did not claim that it was acting under
Article 51 of the UN Charter and it did not report that it
was so acting to the Security Council. The Court
 concluded that the United States cannot justify its use of 8. It recalls to both Parties to the present case the need to co-operate with the
force as collective self-defense. Contadora efforts in seeking a definitive and lasting peace in Central
4. The criteria with regard to necessity and proportionality, that is America, in accordance with the principle of customary international law
necessary when using force in self-defense was also not fulfilled. that prescribes the peaceful settlement of international disputes, also
1. Laying of mines in early 1984 and certain attacks on endorsed by Article 33 of the United Nations Charter.
Nicaraguan ports, oil installations and naval bases, 9. Court held that an armed attack included:
imputable to the United States constitute infringements of 1. action by regular armed forces across an international border; and

this principle, unless justified by circumstances, which 2. “the sending by or on behalf of a State of armed bands, groups,
exclude their unlawfulness. It also considers that the irregulars or mercenaries, which carry out acts of armed force
United States has committed a prima facie violation of the against another State of such gravity as to amount to (inter alia) an
principle by arming and training the contras, unless this actual armed attack conducted by regular forces, or its (the State’s)
can be justified as an exercise of the right of self-defence. substantial involvement therein”
2. It does not consider that military manoeuvres held by the 10. State to exercise the right of individual or collective self-defense:
United States near the Nicaraguan borders, or the supply 1. A State must have been the victim of an armed attack;

of funds to the contras, amounts to a use of force. 2. This State must declare itself as a victim of an armed attack; [NB:
3. The Court held that the United States breached its CIL obligation – not to the assessment whether an armed attack took place nor not is done
intervene in the affairs of another State – when it trained, armed, equipped by the state who was subjected to the attack. A third State cannot
and financed the contra forces or encouraged, supported and aided the exercise a right of collective self-defense based its (the third
military and paramilitary activities against Nicaragua. State’s) own assessment]; and

4. If one State, with a view to the coercion of another State, supports and 3. In the case of collective self-defense – the victim State must
assists armed bands in that State whose purpose is to overthrow the request for assistance (“there is no rule permitting the exercise of
government of that State, that amounts to an intervention by the one State in collective self-defense in the absence of a request by the State
the internal affairs of the other, whether or not the political objective of the which regards itself as the victim of an armed attack”).

State giving such support and assistance is equally far reaching.
4. The State does not, under customary international law, have the
5. The Court has taken the view (paragraph 110 above) that United States
same obligation as under Article 51 of the UN Charter to report to
participation, even if preponderant or decisive, in the financing, organizing,
the Security Council that an armed attack happened – but “the
training, supplying and equipping of the contras, the selection of its military
absence of a report may be one of the factors indicating whether
or paramilitary targets, and the planning of the whole of its operation, is still
the State in question was itself convinced that it was acting in self-
insufficient in itself, on the basis of the evidence in the possession of the
defense”
Court, for the purpose of attributing to the United States the acts committed
by the contras in the course of their military or paramilitary operations in
Nicaragua
6. The United States breached its customary international law obligation – not
to violate the sovereignty of another State – when it directed or authorized
its aircrafts to fly over Nicaraguan territory and when it laid mines in the
internal waters of Nicaragua and its territorial sea.
1. State sovereignty extends to a State’s internal waters, its territorial
sea and the air space above its territory. The States violated
customary international law when it laid mines in the territorial sea
and internal waters of Nicaragua and when it carried out
unauthorized flights over Nicaraguan airspace by aircrafts that
belong to or was under the control of the United States.
7. The Court therefore finds that the United States is prima facie in breach of
an obligation not to deprive the 1956 Treaty of its object and purpose (pacta
sunt servanda), and has committed acts in contradiction with the terms of
the Treaty.
 008 DISSENTING OPINION OF JUDGE TANAKA IN THE SOUTH-WEST
AFRICA CASES (Marcos)
CASE OVERVIEW:
1. On 4 November 1960, Ethiopia and Liberia (Applicants), as former States
Members of the League of Nations, instituted separate proceedings against
South Africa in a case concerning the continued existence of the League of
Nations Mandate for South West Africa and the duties and performance of
South Africa as mandatory Power.
2. The Court was requested to make declarations to the effect that South West
Africa remained a territory under a Mandate, that South Africa had been in
breach of its obligations under that Mandate, and that the Mandate and
hence the mandatory authority were subject to the supervision of the United
Nations.
3. On 20 May 1961, the Court made an Order finding Ethiopia and Liberia to
be in the same interest and joining the proceedings each had instituted.
South Africa filed four preliminary objections to the Court’s jurisdiction.
4. In a Judgment of 21 December 1962, the Court rejected these and upheld its
jurisdiction.
5. After pleadings on the merits had been filed within the time-limits fixed at
the request of the Parties, the Court held public sittings from 15 March to 29
November 1965 in order to hear oral arguments and testimony, and
judgment in the second phase was given on 18 July 1966.
6. By the casting vote of the President — the votes having been equally
divided (7-7) — the Court found that Ethiopia and Liberia could not be
considered to have established any legal right or interest appertaining to
them in the subject-matter of their claims, and accordingly decided to reject
those claims.
TOPIC RELATED TO PIL (Customs)
1. In the present case the Applicants assert the existence of the international
norm and standards of non-discrimination and non-separation. They
based and refered it to customary law. They enumerate resolutions of the
General Assembly which repeatedly and strongly deny the apartheid policy
of racial discrimination as an interpretation of the Charter
2. An important question involved in the Applicants' contention is whether
resolutions and declarations of international organs can be recognized
as a factor in the custom-generating process as "evidence of a general
practice". (Basically if these resolutions can be the source of which are
evidenced by general practice)
3. According to traditional international law, a general practice is the result
of the repetition of individual acts of States constituting consensus in
regard to a certain content of a rule of law. Such repetition of acts is a
historical process extending over a long period of time. This formation of
customary law is described to be individualistic.
4. Now, with the appearance of organizations such as the League of Nations
and the UN, replaced the individualistic method of international negotiation
by the method of “parliamentary democracy”. Such is then bound to
influence the mode of generation of customary law.
5. A State, instead of pronouncing its view to a few States directly concerned,
has the opportunity, through the medium of an organization, to declare its
position to al1 members of the organization and to know immediately their
reaction on the same matter.
6. In former days, practice, repetition and opinio juris sive necessitatis, which
are the ingredients of customary law might be combined together in a very
long and slow process extending over centuries.
7. In the contemporary age of highly developed techniques of communication
and information, the formation of a custom through the medium of
international organizations is greatly facilitated and accelerated; the
establishment of such a custom would require no more than one generation
or even far less than that.
8. What is required for customary international law is the repetition of
the same practice; accordingly, in this case resolutions, declarations, etc.,
on the same matter in the same, or diverse, organizations must take place
repeatedly.
9. Each resolution, declaration, etc., being considered as the manifestation of
the collective will of individual participant States, the will of the
international community can certainly be formulated more quickly and
more accurately as compared with the traditional method of the
normative process.
10. This coIlective, cumulative and organic process of custom-generation can
be characterized as the middle way between legislation by convention and
the traditional process of custom making, and can be seen to have an
important role from the viewpoint of the development of international law.
11. Briefly, the method of the generation of customary international law is in
the stage of transformation from being an individualistic process to being
a collectivistic process. This phenomenon can be said to be the adaptation
of the traditional creative process of international law to the reality of the
growth of the organized international community. It can be characterized,
considered from the sociological viewpoint, as a transition from traditional
custom-making to international legislation by treaty.
12. In view of the above, it is considered that the norm of non-discrimination or
non-separation on the basis of race has become a rule of customary
international law.
13. Although the issue started 40 years ago, retroactivity is recognized because
basically it is but an authentic interpretation of already existing provisions
of the Mandate and the Covenant.
14. What ought to have been clear 40 years ago has been revealed by the
creation of a new customary law which plays the role of authentic
interpretation the effect of which is retroactive.
 Republic vs. Sandiganbayan (RAM)
July 21, 2013 | Carpio, J. | Customary international law during the interregnum
PETITIONER: Republic of the Philippines
RESPONDENTS: Sandiganbayan – Major General Josephus Q. Ramas and
Elizabeth Dimaano
SUMMARY: The PCGG created the AFP Anti-Graft Board to investigate
reports of unexplained wealth and corrupt practices by AFP personnel. Among
those investigated was Major General Ramas. After investigation, a complaint
was filed against Ramas and Elizabeth Dimaano, an alleged confidential agent of
the Philippine Army. Earlier, or on March 3, 1986, a raiding team conducted a
search of Dimaano’s residence. Although the search warrant was only for the
seizure of illegally possessed firearms, the raiding team also seized
communications equipment, jewelries, monies, and land titles. The petitioners
argued that Dimaano could not pray for the exclusion of the alleged illegally
seized items because the exclusionary right under the Bill of Rights of the 1973
Constitution with respect to the seizure conducted on March 3, 1986 was not in
effect. The issues in this case are WoN the revolutionary government was bound
by the Bill of Rights of the 1973 Constitution during the interregnum and WoN
the protection accorded to individuals under the International Covenant on Civil
and Political Rights (“Covenant”) and the Universal Declaration of Human
Rights (“Declaration”) remained in effect during the interregnum.
For the first issue, the SC held that Bill of Rights under the 1987 Constitution
was not operative during the interregnum. The government in power was
concededly a revolutionary government bound by no constitution. Thus, no one
could validly question the sequestration orders as violative of the Bill of Rights
because there was no Bill of Rights during the interregnum.
For the second issue, the SC held that even during the interregnum the Filipino
people continued to enjoy, under the Covenant and the Declaration, almost the
same rights found in the Bill of Rights of the 1973 Constitution. The Court has
interpreted the Declaration as part of the generally accepted principles of
international law and binding on the State. Thus, the revolutionary government
was also obligated under international law to observe the rights of individuals
under the Declaration.
DOCTRINE: The Court considers the Declaration as part of customary
international law, and that Filipinos as human beings are proper subjects of the
rules of international law laid down in the Covenant since the revolutionary
government did not repudiate the Covenant or the Declaration during the
interregnum.
FACTS:
1. Immediately upon her assumption to office following the successful EDSA
Revolution, then President Corazon C. Aquino issued Executive Order No. 1
(EO No. 1) creating the Presidential Commission on Good Government
(PCGG).
2. EO No. 1 primarily tasked the PCGG to recover all ill-gotten wealth of former
President Ferdinand E. Marcos, his immediate family, relatives, subordinates
and close associates.
3. EO No. 1 vested the PCGG with the power:
a. to conduct investigation as may be necessary in order to accomplish
and carry out the purposes of this order and
b. to promulgate such rules and regulations as may be necessary to
carry out the purpose of this order.
4. The PCGG created the AFP Anti-Graft Board to investigate reports of
unexplained wealth and corrupt practices by AFP personnel. Among those
investigated was Major General Ramas. After investigation, a complaint
was filed against Ramas and Elizabeth Dimaano, an alleged confidential
agent of the Philippine Army.
5. The AFP Board issued a Resolution on its findings and recommendation on
the reported unexplained wealth of Ramas, which included:
a. House and lot in Cebu city with 3,327 sq. meters
b. Property in Quezon city valued at Php 700,000.00
c. The equipment/items and communication facilities, found in the
premises of Elizabeth Dimaano and were confiscated by elements of
the PC Command of Batangas.
i. These items could not have been in the possession of
Elizabeth Dimaano if not given for her use by respondent
Commanding General of the Philippine Army.
ii. Ms. Elizabeth Dimaano is the alleged mistress of the AFP
General as stated in Affidavits of members of the Military
6. Earlier, or on March 3, 1986, a raiding team conducted a search of
Dimaano’s residence. Although the search warrant was only for the seizure
of illegally possessed firearms, the raiding team also seized
communications equipment, jewelries, monies, and land titles.
7. The petitioners argued that Dimaano could not pray for the exclusion of the
alleged illegally seized items. It argued that the exclusionary right arising
from an illegal search only applied beginning February 2, 1987 when the
1987 Constitution took effect. In other words, Dimaano cannot invoke the
exclusionary right under the Bill of Rights of the 1973 Constitution with
respect to the seizure conducted on March 3, 1986.
ISSUE/s:
1. WoN the revolutionary government was bound by the Bill of Rights of the
1973 Constitution during the interregnum. – NO
2. WoN the protection accorded to individuals under the International
 Covenant on Civil and Political Rights (“Covenant”) and the Universal
Declaration of Human Rights (“Declaration”) remained in effect during the
interregnum. – YES.
RULING: WHEREFORE, the petition for certiorari is DISMISSED. The questioned
Resolutions of the Sandiganbayan dated 18 November 1991 and 25 March 1992 in
Civil Case No. 0037, remanding the records of this case to the Ombudsman for such
appropriate action as the evidence may warrant, and referring this case to the
Commissioner of the Bureau of Internal Revenue for a determination of any tax
liability of respondent Elizabeth Dimaano, are AFFIRMED.
RATIO:
First Issue
1. The Bill of Rights under the 1987 Constitution was not operative
during the interregnum.
2. During the interregnum, the directives and orders of the revolutionary
government were the supreme law because no constitution limited the
extent and scope of such directives and orders. With the abrogation of the
1973 Constitution by the successful revolution, there was no municipal law
higher than the directives and orders of the revolutionary government.
3. Thus, during the interregnum, a person could not invoke any
exclusionary right under a Bill of Rights because there was neither a
constitution nor a Bill of Rights during the interregnum.
4. President Aquino’s rise to the presidency was achieved in defiance of the
1973 Constitution.
5. During the interregnum, the government in power was concededly a
revolutionary government bound by no constitution. No one could validly
question the sequestration orders as violative of the Bill of Rights because
there was no Bill of Rights during the interregnum. However, upon the
adoption of the Freedom Constitution, the sequestered companies assailed
the sequestration orders as contrary to the Bill of Rights of the Freedom
Constitution.
Second Issue
1. Even during the interregnum the Filipino people continued to enjoy, under
the Covenant and the Declaration, almost the same rights found in the Bill
of Rights of the 1973 Constitution.
2. The revolutionary government, after installing itself as the de jure
government, assumed responsibility for the State’s good faith compliance
with the International Covenant on Civil and Political Rights (ICCPR) to
which the Philippines is a signatory.
3. Under Article 17(1) of the ICCPR, the revolutionary government had the
duty to insure that “[n]o one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence.”
4. The UN Declaration of Human Rights, to which the Philippines is also a
signatory, provides in its Article 17(2) that “[n]o one shall be arbitrarily
deprived of his property.”
5. Although the signatories to the Declaration did not intend it as a legally
binding document, being only a declaration, the Court has interpreted the
Declaration as part of the generally accepted principles of international
law and binding on the State.
6. Thus, the revolutionary government was also obligated under international
law to observe the rights of individuals under the Declaration.
7. The revolutionary government did not repudiate the Covenant or the
Declaration during the interregnum.
8. The Court considers the Declaration as part of customary international
law, and that Filipinos as human beings are proper subjects of the rules
of international law laid down in the Covenant.
9. The fact is the revolutionary government did not repudiate the Covenant or
the Declaration in the same way it repudiated the 1973 Constitution.
10. As the de jure government, the revolutionary government could not escape
responsibility for the State’s good faith compliance with its treaty
obligations under international law.
11. It was only upon the adoption of the Provisional Constitution on 25 March
1986 that the directives and orders of the revolutionary government became
subject to a higher municipal law that, if contravened, rendered such
directives and orders void.
12. During the interregnum when no constitution or Bill of Rights existed,
directives and orders issued by government officers were valid so long as
these officers did not exceed the authority granted them by the
revolutionary government. The directives and orders should not have also
violated the Covenant or the Declaration.
13. In this case, the revolutionary government presumptively sanctioned the
warrant since the revolutionary government did not repudiate it. The
warrant, issued by a judge upon proper application, specified the items to be
searched and seized. The warrant is thus valid with respect to the items
specifically described in the warrant.
14. Nevertheless, the warrant did not include the monies, communications
equipment, jewelry and land titles that the raiding team confiscated. The
raiding team had no legal basis to seize these items without showing that
these items could be the subject of warrantless search and seizure. Clearly,
the raiding team exceeded its authority when it seized these items.
15. The seizure of these items was therefore void, and unless these items are
contraband per se, and they are not, they must be returned to the person
from whom the raiding seized them. We thus hold that these items should
be returned immediately to Dimaano.
 001 LEGAL STATUS OF EASTERN GREENLAND
(DENMARK V. NORWAY, PCIJ REPORTS, SERIES A/B, NO. 53)
September 5, 1933 | Permanent Court of International Justice 26th Session | Treaties
PETITIONER: Denmark
RESPONDENTS: Norway
SUMMARY: Denmark filed a suit against Norway in the Permanent Court of
International Justice because Norway declared that it will occupy certain
territories (Eirik Raudes Land) in Greenland which belonged to Denmark.
Denmark alleged that the declaration of occupation of Norway is invalid because
at the time of the declaration, Greenland was already under the sovereignty of
Denmark. Norway, on the other hand, alleges that it acquired sovereignty over
the Eirik Raudes land because the area lay outside the limits of the Danish
colonies in Greenland.
According to the court, for a claim of sovereignty, two elements must concur:
first, that the country has intention and will to act as sovereign, and second, that
there is some actual exercise or display of such authority.
(in re: 2nd element) In this case, Denmark is said to have conferred a valid title of
sovereignty in Greenland because of various things taken into consideration, one
of which is the numerous treaties in which Denmark provided for the non-
application of the treaty to Greenland. By expressly excluding Greenland in
these treaties with other countries, it shows that Greenland is subject to the
Danish government.
(in re: 1st element) These treaties may also be regarded as demonstrating
sufficiently Denmark's will and intention to exercise sovereignty over
Greenland.
Doctrine: A claim to sovereignty is based not upon some particular act or title
such as a treaty of cession but merely upon continued display of authority.
FACTS:
Caveat: I removed the procedural stuff
1. In July 10, 1931 the Norwegian government had an official proclamation of
occupation stating that Greenland (between Carlsberg Fjord on the south
and Bessel Fjord on the north) is placed under the Norwegian sovereignty.
2. The territory covered by this proclamation was denominated by Norway
“eirik Raudes Lands”
3. The contents of the Resolution were notified to the Powers whom Norway
regarded as being interested.
4. The following day, The Danish Government informed the Norwegian
Government that it had submitted the question to the Permanent Court of
International Justice”
5. The Danish Government submitted that the Nowegian occupation is
invalid because the area occupied was at the time of the occupation subject
to Danish sovereignty; that the area is part of Greenland, and at the time of
the occupation Danish sovereignty existed over all Greenland. They support
this contention under two propositions:
a. Denmark has claimed and exercised sovereign rights over
Greenland as a whole for a long time and has obtained thereby a
valid title to sovereignty.
a. Norway has by treaty or otherwise herself recognized Danish
sovereignty over Greenland as a whole and therefore cannot now
dispute it.
b. The Norwegian Government, in it’s counter case, pray that
Denmark has no sovereignty over Eirik Raudes Land because at
the time of the occupation the area was terra nullius. The area lay
outside the limits of the Danish colonies in Greenland and that
Danish sovereignty extended no further than the limits of these
colonies.
ISSUES:
1. WoN Denmark has obtained a valid title to sovereignty over Eirik Raudes
Land (East part of Greenland) –YES.
RULING: Greenland belongs to the sovereign of the Danish Government
RATIO:
1. A claim to sovereignty is based not upon some particular act or title such as
a treaty of cession but merely upon continued display of authority. This
involves 2 elements:
a. the intention and will to act as sovereign, and
b. some actual exercise or display of such authority
2. Another circumstance which must be taken into account is the extent to
which the sovereignty is also claimed by some other Power.
a. In this case, up till 1921, no Power disputed the Danish claim to
sovereignty.
3. Denmark must be regarded as having displayed during this period of 1814
to 1915 her authority over the uncolonized part of the country to a degree
sufficient to confer a valid title to the sovereignty. This is because of the
following which are taken in conjunction:
a. the legislation Denmark had enacted applicable to Greenland
generally,
b. the numerous treaties in which Denmark, with the concurrence of
the other contracting Party, provided for the non-application of the
treaty to Greenland in general,
c. the absence of all claim to sovereignty over Greenland by any
other Power,
[Rationale connected to treates only (1.b)] contracting Parties. In these agreements, concluded since 1826, Greenland
4. In order to establish that Denmark has exercised in fact sovereignty over all is described as a Danish colony or as forming part of Denmark, or
Greenland for a long time, Counsel for Denmark have laid a series of Denmark is allowed to exclude Greenland from the operation of the
conventions - mostly commercial in character - which have been concluded agreement. In accepting these bilateral and multilateral agreements as
by Denmark and concurred by other contracting Parties. binding upon herself, Norway reaffirmed that she recognized the whole of
a. There was a stipulation in a convention that has been inserted to Greenland as Danish.
the effect that the convention shall not apply to Greenland.
b. In the case of multilateral treaties, the stipulation usually takes the
form of a Danish reserve at the time of signature. In date, these
conventions cover the period from 1782 onwards.
c. In the American declaration used the phrase ".... will not object to
the Danish Government extending their political and economic
interests to the whole of Greenland"
d. In the Antilles Treaty, the Danish Minister for Foreign Affairs
treats the declaration as involving American consent to an
extension of sovereignty
5. The exclusion of Greenland is, with one exception, made without
qualification. In that case alone it is "the Danish colonies in Greenland" to
which the treaty is not to apply. In many of these cases, the wording is quite
specific; for instance, Article 6 of the Treaty of 1826 with the United States
of America: "The present Convention shall not apply to the Northern
possessions of His Majesty the King of Denmark, that is to say Iceland, the
Færö Islands and Greenland...."
6. The importance of these treaties is that they show a willingness on the part
of the States with which Denmark has contracted to admit her right to
exclude Greenland. To some of these treaties, Norway has herself been a
Party, and these must be dealt with later because they are relied on by
Denmark as constituting binding admissions by Norway that Greenland is
subject to Danish sovereignty.
7. For the purpose of the present argument, the importance of these
conventions, with whatever States they have been concluded, is due to the
support which they lend to the Danish argument that Denmark possesses
sovereignty over Greenland as a whole. [So basically I think they’re
saying that because Greenland is expressly stated as not covered by
these treaties, it’s like saying that Greenland is part of Norway because
why would they expressly exclude an area that doesn’t belong to their
territory?]
8. To the extent that these treaties constitute evidence of recognition of her
sovereignty over Greenland in general, Denmark is entitled to rely upon
them.
9. These treaties may also be regarded as demonstrating sufficiently
Denmark's will and intention to exercise sovereignty over Greenland.
10. Moreover, in the Court’s opinion, a second series of undertakings by
Norway, recognizing Danish sovereignty over Greenland, is afforded by
various bilateral agreements concluded by Norway with Denmark, and by
various multilateral agreements to which both Denmark and Norway were
 NEW ZEALAND; AUSTRALIA v. FRANCE (Armand)
Dec 20, 1974 | ICJ | Nuclear Tests
PETITIONER: NEW ZEALAND; AUSTRALIA
RESPONDENTS: FRANCE
SUMMARY: Australia and New Zealand demanded that France cease atmospheric
nuclear tests in the South Pacific. France completed a series of nuclear tests in the
South Pacific. Australia and New Zealand applied to the ICJ demanding that France
cease testing immediately. While the case was pending, France announced the series
of tests was complete and that it did not plan any further such tests. France moved to
dismiss the applications.
The issue is WoN declaration made by way of unilateral acts have the effect of
creating legal obligations – YES.
The unilateral statements made by French authorities were first communicated to the
government of Australia. To have legal effect there was no need tor the statements to
be directed to any particular state. The general nature and characteristics of the
statements alone were relevant for evaluation of their legal implications. The sole
relevant question is whether the language employed in any given declaration reveals
a clear intention. One of the basic principles governing the creation and performance
of legal obligations is the principle of good faith. The statements made by the
President of the French Republic must be held to constitute an engagement of the
State in regard to the circumstances and intention with which they were made. The
statements made by the French authorities are therefore relevant and legally binding.
Applications dismissed.
DOCTRINE: Declaration made through unilateral acts may have the effect of
creating legal obligations.
FACTS:
1. On 9 May 1973, Australia and New Zealand each instituted proceedings against
France concerning tests of nuclear weapons which France proposed to carry out
in the atmosphere in the South Pacific region.
2. France stated that it considered the Court manifestly to lack jurisdiction and
refrained from appearing at the public hearings or filing any pleadings.
3. By two Orders of 22 June 1973, the Court, at the request of Australia and New
Zealand, indicated provisional measures to the effect, inter alia, that pending
judgment France should avoid nuclear tests causing radioactive fall-out on
Australian or New Zealand territory.
4. By two Judgments delivered on 20 December 1974, the Court found that the
Applications of Australia and New Zealand no longer had any object and that it
was therefore not called upon to give any decision thereon.
5. In so doing the Court based itself on the conclusion that the objective of
Australia and New Zealand had been achieved inasmuch as France, in various
public statements, had announced its intention of carrying out no further
atmospheric nuclear tests on the completion of the 1974 series.
6. A series of nuclear tests was completed by France in the South Pacific. This
action made Australia and New Zealand to apply to the I.C.J. demanding that
France cease testing immediately.
7. Before the case could be completed, France announced it had completed the test
and did not plan any further test. So France moved for the dismissal of the
application.
8. In its application, Australia asks the court to “adjuge and decleare that carrying
out of further atmospheric nuclear weapon tests in the South Pacific Ocean is
not consistent with applicable rules of international law” and to order “that the
French Republic shall not cary out any further such tests”
9. New Zealand, on the other hand, asks the Court to “adjuge and declear that the
conduct by the French Government of nuclear tests in the South Pacific region
that givfe rise to radio active fallout constitutes a violation of New Zealand’s
rights under international law and these rights will be violated by any further
such tests:”
ISSUE/s:
1. WoN a declaration made through unilateral act has effect of creating legal
obligations – YES
RULING:
RATIO:
11. In its judgment in the case concerning Nuclear Tests (New Zealand v.
France), the Court, by 9 votes to 6, the Court found that the claim of New
Zealand no longer had any object and that the Court was therefore called
upon to give a decision thereon.
12. In the reasoning of its Judgment, the Court adduces inter alia the following
considerations: Even before tuning to the questions of jurisdiction andl
admissibility, the Court has first to consider the essentially pleliminary
question to whether a dispute exists and to analyse the clainl submitted to it
; the proceedings instituted before the Court on 9 May 1973 concerned the
legality of atmospheric nuclear tests conducted by France in the South
Pacific ; the original rind ultimate objective of New Zealand to obtain a
termination of those tests; France, by various public statements made in
1974, has announced its intention, following the completion of the 1974
series of atmospheric tests, to cease the conduct of such
13. The Court finds that the objective of New Zealand has in effect been
accomplished, inasmuch as France has undertaken the obligation to hold no
further nuclear tests in the atmosphere in the South; the dispute having thus
disappeared, the claim no longer has my object and there is nothing on
which to give judgment.
14. Upon the delivery of the Judgment, the Order of 22 June 1974 indicating
interim measures of protection ceases to be operative and the measures in
question lapse.
15. The Court is bound to take note of further developments both prior to and
subsequent to the close of the oral proceedings namely, certain public
statements by French authorities of which some were mentioned before the
Court at public hearings.
16. The court also held that the declaration made through unilateral acts
may have the effect of creating legal obligations. In this case, the
statement made by the President of France conveying to the world at large,
its intention to effectively terminate its atmospheric tests. It was bound to
assume that other States might take not of these statements and rely on
their being effective. It must be held to constitute an engagement of the
State in regard to the circumstances and intention with which they
were made. Therefore, these statement made by the France are
relevant and legally binding. Application was dismissed.
17. The unilateral statements made by French authorities were first relayed to
the government of Australia. There was no need for the statements to be
directed to any particular state for it to have legal effect. The general nature
and characteristics of the statements alone were relevant for evaluation of
their legal implications.
18. Once the Court has found that a State has entered into a commitment
concerning its future conduct, it is not the Court’s function to comemplate
that it will not comply with it. Howevern, the basis of the Judgement were
to be affected, the Applicant could request an examination of the situation
in accordance with the provisions of the State.
19. For these reasons, the Court finds that the claim no longer has any object
and that it is therefore not called upon to give a decision thereon.
 012 INTERPRETATION OF PEACE TREATIES CASE SECOND
PHASE ADVISORY OPINION (MERILLES)
July 18, 1950 | ???, J. | ???
PETITIONER:????
RESPONDENTS: ???
SUMMARY: This case concerned the procedure to be adopted in regard to the
settlement of (human rights) disputes between the States signatories of the
Peace Treaties of 1947 (Bulgaria, Hungary, Romania, on the one hand, and the
Allied States, on the other).
In the first Advisory Opinion (30 March 1950), the Court stated that the
countries, which had signed a Treaty providing an arbitral procedure for the
settlement of disputes relating to the interpretation or application of the Treaty,
were under an obligation to appoint their representatives to the arbitration
commissions prescribed by the Treaty.
Notwithstanding this Advisory Opinion, the three States, which had declined to
appoint their representatives on the arbitration commissions, failed to modify
their attitude. A time-limit was given to them within which to comply with the
obligation laid down in the Treaties as they had been interpreted by the Court.
After the expiry of the time-limit, the Court was requested to say whether the
Secretary-General, who, by the terms of the Treaties, was authorized to appoint
the third member of the arbitration commission in the absence of agreement
between the parties in respect of this appointment, could proceed to make this
appointment, even if one of the parties had failed to appoint its representative.
In a further Advisory Opinion of 18 July 1950, the Court replied that this
method could not be adopted since it would result in creating a commission of
two members, whereas the Treaty provided for a commission of three members,
reaching its decision by a majority.
DOCTRINE: One could not remedy the breach of a Treaty obligation by
creating a Commission which was not the kind of Commission contemplated by
the Treaties. It was the Court's duty to interpret Treaties, not to revise them.
FACTS:
ISSUE/s:
1. The UN had submitted tot eh Court (ICJ) for advisory opinion the following
1. WON the SecGen can appoint a third representative to complete the three-
questions:
a. Do the diplomatic exchanges between Bulgaria, Hungary and
Romania on the one hand and certain Allied and Associated
Powers signatories to the m a t i e s of Peace on the other,
concerning the implementation of Article 2 of the Treaties with
Bulgaria and Hungary and Article 3 of, the Treaty with Romania,
disclose disputes subject to the provisions for the settlement of
disputes contained in Article 36 of the treaty of Peace with
Bulgaria, Article 40 of the Treaty of Peace with Hungary and
Article 38 of the Treaty of Peace with Romania?
2. If the answer to the above is yes:
a. Are the Governments of Bulgaria, Hungary and Romania obligated
to carry out the provisions of the Arti- cles referred to in Question
I, including the provisions for the appointment of their
representatives to the Treaty Commissions?
3. If the answer tot he above and within 30 days from the date when he Court
delivers its opinion, the Governments concerned have not notified the
SecGen that they have appointed their representatives tot he Treaty
Commissions, the SecGen has so advised the ICJ:
a. If one party fails to appoint a representative to a Treaty
Commission under the ‘Treaties of Peace with Bulgaria,
Hungary and Romania where that party is obligated to appoint
a representative to the Treaty Commission, is the Secretary-
Genera lof the United Nations authorized to appoint the third
member of the Commission upon the request of the other party
to a dispute according to the provisions of the respective
Treaties?
b. Would a Treaty Commission composed of a representative of one
party and a third member appointed by the SecGen of the UN
constitute a Commission, within eh meaning of the relevant Treaty
articles, competent to make a definitive binding decision in
settlement dispute
4. March 30, 1950, the Court answered the first two questions saying that
diplomatic exchanges disclosed the existence of disputes subject to the
Treaty provisions for the settlement of disputes and that the Governments of
Bulgaria, Hungary and Romania were under obligation to appoint their
representatives to the Treaty Commissions
5. May 1, 1950, 30 days after the date of delivery of Court’s Advisory
Opinion, SecGen has not received information that nay one fo the 3
Governments concerned had appointed representatives.
6. In its opinion the Court said that, although the literal sense did not
completely exclude the possibility of' appointing the third member before
appointing both national commissioners, the natural and ordinary meaning
of the term required that the latter be appointed before the third member.
member Commission? - NO
RULING: The Court decided to answer (Question in Fact #3(a)) in the negative,
therefore unnecessary to answer the follow up (Fact 3(b)).

RATIO:
1. The Secretary-General's power to appoint a third member derived
solely from the agreement of the parties, as expressed in the disputes
clause of the treaties. By its very nature such a clause was to be strictly
construed and could be applied only in the case expressly provided hereby.
2. A change in the normal sequence of appointments could only be justified if
it were shown by the attitude of the parties that they desired such a reversal
to facilitate the constitution of Commission in accordance with the terms of
the treaties. But such was not the present case.
3. In these circumstances the appointment of the third member by the
Secretary-General, instead of bringing about the: constitution of a three-
member Commission provided for by the Treaties, would result only in the
constitution of a two-member Commission not the kind of Commission for
which the Treaties had provided.
4. The opposition of the one national Commissioner could prevent the
Commission from reaching any decision. It could decide only by unanimity,
whereas the disputes clause provided for a majority decision.
5. In short, the Secretary-General would be authorized to proceed to the
appointment of a third member only if it were possible to constitute a
Commission in conformity with the Treaty provisions.
6. The Court had declared in its Opinion of March 30th that the Governments
of Bulgaria, Hungary and Romania were under an obligation to appoint
their representative to the Treaty Commissions.
7. Refusal to fulfill a Treaty obligation would involve international
responsibility.
8. Nevertheless, such a refusal could not alter the conditions contemplated
in the Treaties for the exercise of the Secretary-General's power of
appointment.
9. One could not remedy the breach of a Treaty obligation by creating a
Commission which was not the kind of Commission contemplated by
the Treaties. It was the Court's duty to interpret Treaties, not to revise
them.
 RESERVATIONS TO THE CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE (PAT)
May 28, 1951 | Basdevant, President | Consent in order to be bound; reservations
SUMMARY: During the General Assembly of the UN, several questions and reservations were
raised regarding the CPPCG. The questions and answers of the ICJ are as follows:
QI: Can the reserving State be regarded as being a party to the Convention while still
maintaining its reservation if the reservation is objected to by one or more of the parties to
the Convention but not by others? A: A state which has made and maintained a reservation
which has been objected to by one or more of the parties but not by others can be regarded
as being a party to the Convention if the reservation is compatible with the object and
purpose of the convention; otherwise, State can’t be regarded as being a party to the
convention.
QII (a): What is the effect of the reservation between the reserving State and the parties
which object to the reservation? A: If a party to the convention objects to a reservation which
it considers to be incompatible with the object and purpose of the Convention, it can in fact
consider that the reserving State is not a party to the convention;
QII (b): What is the effect of the reservation between the reserving State and those who
accept it? A: If a party accepts the reservation as being compatible with the object and
purpose of the convention, it can in fact consider that the reserving State is a party to the
convention.
QIII (a): What would be the legal effect if an objection to a reservation is made by a signatory
which has not yet ratified? A: It can have the legal effect indicated in QI only upon ratification.
Until that moment, it merely serves as a notice to the other State of the eventual attitude of
the signatory State.
QIII (b): What would be the legal effect if an objection to a reservation is made by a state
entitled to sign or accede but which has not yet done so? A: It is without legal effect.
DOCTRINE: In treaty relations, a state cannot be bound without its consent, hence a State
could not be bound by a reservation to which it has not consented. Every State is free to
decide for itself whether the state which formulated the reservation was or was not a party to
FACTS:
the1.convention.
During the General Assembly of the United Nations, several questions and
reservations were raised with regard to the Convention on the Prevention and
Punishment of the Crime of Genocide (CPPCG). The following were the
questions:
I. Can the reserving State be regarded as being a party to the Convention
while still maintaining its reservation if the reservation is objected to by
one or more of the parties to the Convention but not by others?
II. If the answer to Question I is in the affirmative, what is the effect of the
reservation as between the reserving State and:
(a) The parties which object to the reservation?
(b) Those who accept it?
III. What would be the legal effect as regards the answer to Question I if an
objection to a reservation is made:
(a) By a signatory which has not yet ratified?
(b) By a State entitled to sign or accede but which has not yet done so?
RATIO:
On some of the objections re the competence to exercise advisory functions of the ICJ:
1. Some States (SS): Making of an objection to a reservation made by a State to
the CPPCG constitutes a dispute and that, in order to avoid adjudicating on that
dispute, the Court should refrain from replying to Questions I and II.
a. ICJ: Art. 65 of a Statute recognizes that the Court has the power to decide
whether the circumstances of a particular case are such as to lead the Court
to decline to reply to the request for an opinion; and in addition, Art. 68
recognizes that the Court has the power to decide to what extent the
circumstances must lead it to apply advisory proceedings.
b. Object for the request of an opinion is to guide the UN in respect of its own
action.
2. SS: Request for an opinion would constitute and inadmissible interference by
the General Assembly and by States hitherto strangers to the Convention in the
interpretation of that Convention, as only States which are parties are entitled to
interpret or to seek an interpretation of it.
a. ICJ: Power of the General Assembly to request an advisory opinion doesn’t
impair the inherent right of State parties to the Convention in the matter of
its interpretation.
b. This right is independent of the General Assembly’s power and is
exercisable in a parallel direction.
3. SS: It is based on Art. IX of the Genocide Convention which provides that
disputes relating to the interpretation, etc. shall be submitted to the ICJ at the
request of any of the parties to the dispute, but there really is no dispute in this
case.
a. ICJ: The existence of a procedure for the settlement of disputes does not in
itself exclude the Court’s advisory jurisdiction since Art. 96 of the Charter
confers upon the General Assembly the right to request the Court to given
an advisory opinion on any legal question.
On whether a contracting State which has made a reservation can, while maintaining it,
be regarded as being a party to the Convention, when there is a divergence of views
between the contracting parties concerning this reservation, some accepting it, and
others refusing to accept it
1. It is well established that in treaty relations, a State cannot be bound without
its consent, and that consequently no reservation can be effective against
any State without its agreement.
2. It is also a generally recognized principle that a multilateral convention is the
result of an agreement freely concluded upon its clauses and that
consequently none of the contracting parties is entitled to frustrate or
impair, by means of unilateral decisions or particular agreements, the
purpose of the convention.
3. But with regard to the Genocide Convention, it is proper to refer to a variety of
circumstances which would lead to a more flexible application of the said
principles.
a. Although this Convention has been adopted unanimously, was a series of
majority votes which may make it necessary for certain States to make
reservations.
 b. If the Convention doesn’t provide for an article which prohibits
reservations, it cannot be inferred that one is prohibited.
c. To determine the possibility of making reservations, the following
must be considered: character, purpose, provisions, mode of
preparation, and adoption.
d. The preparation of the Genocide Convention shows that an undertaking
was reached within the General Assembly on the faculty to make
reservations and that it is permitted to conclude that States, becoming
parties, gave their assent.
e. The principles underlying the Genocide Convention are recognized by
civilized nations as binding even without conventional obligation.
f. But the ICJ said that given that Question I is of an abstract character, it
cannot be given an absolute answer.
On what is the effect of reservation between the reserving state and the parties who
objected to the reservation and those who accepted it
4. The ICJ said that no state can be bound by a reservation to which it has not
consented, and therefore, each State, on the basis of its individual
appraisals of the reservations, within the limits of the criterion of the object
and purpose stated above, will or will not consider the reserving State to be
a party to the Convention.
a. The assent will only affect the relationship between the state making the
reservation and the one objecting.
b. It must clearly be assumed that the contracting states are desirous of
preserving intact at least what is essential to the object of the convention.
c. It may be that a State, although not claiming that a reservation is
incompatible with the object and the purpose of the Convention, will
nevertheless object to it, but an understanding between that State and the
reserving State will have the effect that the Convention will enter into force
between them, except for clauses affected by the reservation.
On what would be the legal effect as regards the answer to Question I if an objection is
made by a signatory which has not yet ratified and by a state entitled to sign or accede
but which has not yet done so
5. For the first one, it would be inconceivable that a State possessing no rights
under the Convention could exclude another State.
6. As to the second, the case of the signatory States is more favorable.
a. They have taken certain steps necessary for the exercise of the right of
being a party.
b. If signature is followed by ratification, the objection becomes final,
otherwise it disappears.
c. Objection doesn’t have an immediate legal effect but expresses and
proclaims the attitude of each signatory state on becoming a party.
M. Alvarez, Dissenting Opinion:
1. M. Alvarez’ dissenting opinion mainly says that reservations should be
inadmissible in the 4 categories of multilateral conventions.2
2 (a) Those which seek to develop world international organizations or to establish regional organizations.
a. States making reservations could argue that their reservations were not in
conflict with the aim of the convention, while states objecting to the
reservations might allege the opposite.
b. The following could result if reservations are allowed:
i. If reservations proposed by a State are not accepted by one or several
others of the States parties to the convention, the reserving State is not
to be considered a party.
ii. If the reservations are accepted by a majority, then the convention is
transformed and another convention takes its place; the States which
have not accepted the reservations are not parties to the new
convention.
iii. If the reservations are accepted by certain states but objected to by
others, then there is no convention at all.
Judges Guerrero, Sir Arnold McNair, Read, Hsu Mo, Dissenting Opinion:
1. Similar to M. Alvarez, this joint dissent also focused on the new rule which the
majority opinion has set re the Genocide Convention.
a. They contend that a reserving State may or may not be a party to the
Convention according to the different viewpoints of States which have
already become parties, so under such system, there will be no finality or
certainty as to the status of the reserving State as a party as long as the
admissibility of any reservation that has been objected to is left to
subjective determination by individual states.
2. They also said that it is better to lose as a party in a convention a state which
insists, in face of objections, on a modification of the terms of the convention
than to permit it to become a party against the wish of a state/s which have
irrevocably and unconditionally accepted all the obligations of the convention.
a. This is because in the majority opinion, it seemed as though they wanted to
get a lot of states to sign which was why they were open to the
reservations.
3. If the Genocide Convention is in any way unique, its uniqueness consists in the
importance of regarding it as a whole and maintaining the integrity and
indivisibility of its text, but the new rule will encourage the making of
reservations.
(b) Those which seek to determine the territorial status of certain States
(c) Conventions which seek to establish new and important principles of international law
(d) Conventions seeking to regulate matters of a social or humanitarian interest with a view to improving the position of individuals.
 LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED
PRESENCE OF SOUTH AFRICA IN NAMIBIA (MICA)
1970 | Treaties
SUMMARY: An advice is sought before the Court with regart to the legal
consequences of the continued presence of South Africa in Namibia. The first
issue in this case.
a) Member states are under obligation to abstain from entering into treaty
relations with South Africa, which involve intergovernmental co-operation, in all
cases in which the Government of Africa purports to act on behalf of or
concerning Namibia. Wrt multilateral treaties, the same rule cannot be applied to
certain general conventions such as those with humanitarian character, the non-
performnce of which may adversely affect the people of Namibia: it will be for
the competent international organs to take specific measures
b) Member states are under obligation to abstain from sending diplomatic or
special missions to South Africa including in their jurisdiction the territory of
Namibia, to abstain from sending consular agents to Namibia, and to withdraw
any such agents already there; and to withdraw any such agents already there;
and to make it clear to South Africa that the maintenance of diplomatic or
consular relations does not imply any recognition of its authority wrt Namibia
c) Member states are under obligation to abstain from entering into economic
and other forms of relations with South Africa on behalf of or concerning
Namibia which may entrench its authority over the territory
d) However, non-recognition should not result in depriving the people of
Namibia of any advantages derived from international co-operation. In
particular, the illegality or invalidity of acts performed by the Gov’t of South
Africa on behalf of or concerning Namibia after the termination of the Mandate
cannot be extended to such acts as the registration of births, deaths, marriages
As to States not members of the UN, although they are not bound by Articles 24
and 25 of the Charter, they have been called upon by resolution 276 (1970) to
give assistance in the action which has been taken by the UN with regard to
Namibia. No state which enters into relations with South Africa concerning
Namibia may expect the UN or its Members to recognize the validity or effects
of any such relationship.
FACTS:
1. The Court first recalls that the request for the advisory opinion emanated
from the United Nations Security Council, which decided to submit it by
resolution 284 (1970) adopted on 29 July 1970. The Court goes on to
2. recapitulate the different steps in the subsequent proceedings.
3. It refers in particular to the three Orders of 26 January 1971 whereby the
Court decided not to accede to the objections raised by the Government of
South Africa against the participation in the proceedings of three Members
of the Court. These objections were based on statements which the Judges
in question had made in a former capacity as representatives of their
Governments in United Nations organs dealing with matters concerning
Namibia, or on their participation in the same capacity in the work of those
organs. The Court came to the conclusion that none of the three cases called
for the application of Article 17, paragraph 2, of its Statute.
4. The Government of South Africa contended that the Court was not
competent to deliver the opinion, because Security Council resolution 284
(1970) was invalid for the following reasons:
a. two permanent members of the Council abstained during the
voting (Charter of the United Nations, Art. 27, para. 3);
b. as the question related to a dispute between South Africa and other
Members of the United Nations, South Africa should have been
invited to participate in the discussion (Charter, Art. 32)
c. and the proviso requiring members of the Security Council which
are parties to a dispute to abstain from voting should have been
observed (Charter, Art. 27, para. 3).
5. The Court points out that (a) for a long period the voluntary abstention of a
permanent member has consistently been interpreted as not constituting a
bar to the adoption of resolutions by the Security Council; (b) the question
of Namibia was placed on the agenda of the Council as a situation and the
South African Government failed to draw
6. History:
a. The mandates system established by Article 22 of the Covenant of
the League of Nations was based upon two principles of paramount
importance: the principle of non-annexation and the principle that
the well-being and development of the peoples concerned formed a
sacred trust of civilization. Taking the developments of' the past
half-century into account, there can be little doubt that the ultimate
objective of the sacred trust was self-determination and
independence. The mandatory was to observe a number of
obligations, and the Council of the League was to see that they
were fulfilled. The rights of the mandatory as such had their
foundation in those obligations.
b. When the League of Nations was dissolved, the raison d'etre and
original object of these obligations remained. Since their fulfilment
did not depend on the existence of the League, they could not be
brought to an end merely because the supervisory organ had ceased
to exist. The Members of the League had not declared, or accepted
even by implication, that the mandates would be cancelled or lapse
with the dissolution of the League.
c. The last resolution of the League Assembly and Article 80,
paragraph 1, of the United Nations Charter maintained the
obligations of mandatories. The International Court of Justice has
consistently recognized that the Mandate survived the demise of
the League, and South Africa also ad-mitted as much for a number
of years. Thus the supervisory element, which is an essential part
of the Mandate. was bound to survive. The United Nations
suggested a system of supervision which would not exceed that
which applied under the mandates system, but this proposal was
rejected by South Africa.
ISSUE:
1. WoN the Court was competent to deliver the opinion - Yes
2. What are the legal consequences for States of the continued presence of South
Africa in Namibia notwithstanding Security Council Resolution 276 (1970)
RULING:
1. (by 13 votes to 2) that, the continued presence of South Africa in Namibia
being illegal, South Africa is under obligation to withdraw its
administration from Namibia immediately and thus put an end to its
occupation of the Territory
2. (by 11 votes to 4) that States Members of the United Nations are under
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 and in particular any dealings with the Government of
South Africa implying recognition of the legality of, or lending support or
assistance to, such presence and administration
3. that it is incumbent upon States which are not Members of the United
Nations to give assistance, within the scope of subparagraph (2) above, in
the action which has been taken by the United Nations with regard to
Namibia.
RATIO:
First issue:
1. The Court points out that (a) for a long period the voluntary abstention of a
permanent member has consistently been interpreted as not constituting a
bar to the adoption of resolutions by the Security Council; (b) the question
of Namibia was placed on the agenda of the Council as a situation and the
South African Government failed to draw the Council's attention to the
2. necessity in its eyes of treating it as a dispute.
3. In the alternative, the Government of South Africa maintained that even if
the Court had competence it should nevertheless, as a matter of judicial
propriety, refuse to give the opinion requested, on account of political
pressure to which, it was contended, the Court had been or might be
subjected.
4. On 8 February 1971, at the opening of the public sittings, the Resident of
the Court declared that it would not be proper for the Court to entertain
those observations, bearing as they did on the very nature of the Court as
the principal judicial organ of the United Nations, an organ which, in that
capacity, acts only on the basis of law, independently of all outside
5. influences or interventions whatsoever.
6. The Government of South Africa also advanced another reason for not
giving the advisory opinion requested: that the question was in reality
contentious, because: it related to an existing dispute between South Africa
and other States.
7. The Court considers that it was asked to deal with a request put forward by
a United Nations organ with a view to seeking legal advice on the
consequences of its own decisions.
8. The fact that, in order to give its answer, the Court might have to
pronounce on legal questions upon which divergent views exist between
South Africa and the United Nations does not convert the case into a
dispute between States. (There was therefore no necessity to apply Article
83 'of the Rules of Court, according to which, if an advisory opinion is
requested upon a legal question "actually pending between two or more
States", Article 31 of the Statute, dealing with judges ad hoc, is applicable;
the Government of South Africa having requested leave to choose a judge
ad hoc, the Court heard its observations on that point on 27 January 1971
but. in the light of the above considerations, decided by the Order of 29
9. January 1971 not to accede to that request.)
10. In sum, the Court saw no reason to decline to answer the request for an
advisory opinion.
Second issue:
1. Eventually, in 1966, the General Assembly of the United Nations
adopted resolution 2145 (XXI), whereby it decided that the: Mandate
was terminated and that South Africa had no other right to administer
the Territory. Subsequently the Security Council adopted various
resolutions including resolution 276 (1970) declaring the continued
presence of South Africa in Namibia illegal. Objections challenging
the validity of these resolutions having been raised, the Court points
out that it does not possess powers of judicial review or appeal in
relation to the United Nations organs in question. Nor does the validity
of their resolutions form the subject of the request for advisory
opinion. The Court nevertheless, in the exercise of its judicial function,
and since these objections have been advanced, considers them in the
course of its reasoning before determining the legal consequences
arising from those resolutions.
2. It first recalls that the entry into force of the United Nations Charter
established a relationship between all Members of the United Nations
on the one side, and each mandatory Power on the other, and that one
of the fundamental principles governing that relationship is that the
party which dis-owns or does not fulfil its obligations cannot be
recognized as retaining the rights which it claims to derive from the
relationship Resolution 2145 (XXI) determined that there had been a
material breach of the Mandate, which South Africa had in fact
disavowed.
3. It been (a) that the Covenant of the League of Nations did not confer
on the Council of the League power to terminate a mandate for
misconduct of the mandatory and that the United Nations could not
derive from the League greater powers than the l a m itself had; (b)
that, even if the Council of the League had possessed the power of
revocation of the Mandate, it could not have been exercised
unilaterally but only in co-operation with the Mandatory; (c) that
resolution 2145 (XXI) made pronouncements which the General
Assembly, not being a judicial organ, was not competent to make; (d)
that a detailed factual investigation was called for; (e) that one part of
resolution 2145 (XXI) decided in effect a transfer of territory.
4. The Court observes (a) that, according to a general principle of
international law (incorporated in the vienna convention on the Law of
Treaties), the right to terminate a treaty on account of breach must be
presumed to exist in respect of all treaties, even if unexpressed; (b)
 that the consent of the wrongdoer to such a form of termination cannot
be required; (c) that the United Nations, as a successor to the League,
act-ing through its competent organ, must be seen above all as the
supervisory institution competent to pronounce on the conduct of the
Mandatory; (d) that the failure of South Africa to comply with the
obligation to submit to supervision cannot be disputed; (e) that the
General Assembly was not making a finding on facts, but formulating
a legal situation; it would not be correct to assume that, because it is in
principle vested with recommendatory powers, it is debarred from
adopting, in special cases within the framework of its competence,
resolutions which make determinations or have operative design.
5. The General Assembly, however, lacked the necessary powers to
ensure the withdrawal of South Africa from the Territory and
therefore, acting in accordance with Article 11, paragraph 2, of the
Charter, enlisted the co-operation of the Security Council. The Council
for its part, when it adopted the resolutions concerned, was acting in
the exercise of what it deemed to be its primary responsibility for the
maintenance of peace and security. Article 24 of the Charter vests in
the Security Council the necessary authority. Its decisions were taken
in conformity with the purposes and principles of the Charter, under
Article 25 of which it is for member States to comply with those
decisions, even those members of the Security Council which voted
against them and those Members the United are not members of the
Council.
6. Legal consequences:
a) Member states are under obligation to abstain from entering into treaty
relations with South Africa, which involve intergovernmental co-operation,
in all cases in which the Government of Africa purports to act on behalf of
or concerning Namibia. Wrt multilateral treaties, the same rule cannot be
applied to certain general conventions such as those with humanitarian
character, the non-performnce of which may adversely affect the people of
Namibia: it will be for the competent international organs to take specific
measures
b) Member states are under obligation to abstain from sending diplomatic or
special missions to South Africa including in their jurisdiction the territory
of Namibia, to abstain from sending consular agents to Namibia, and to
withdraw any such agents already there; and to withdraw any such agents
already there; and to make it clear to South Africa that the maintenance of
diplomatic or consular relations does not imply any recognition of its
authority wrt Namibia
c) Member states are under obligation to abstain from entering into
economic and other forms of relations with South Africa on behalf of or
concerning Namibia which may entrench its authority over the territory
d) However, non-recognition should not result in depriving the people of
Namibia of any advantages derived from international co-operation. In
particular, the illegality or invalidity of acts performed by the Gov’t of
South Africa on behalf of or concerning Namibia after the termination of
the Mandate cannot be extended to such acts as the registration of births,
deaths, marriages
7. As to States not members of the UN, although they are not bound by
Articles 24 and 25 of the Charter, they have been called upon by
resolution 276 (1970) to give assistance in the action which has been
taken by the UN with regard to Namibia. No state which enters into
relations with South Africa concerning Namibia may expect the UN or
its Members to recognize the validity or effects of any such
relationship.
8. The Government of south Africa had expressed the desire to supply
the court with further factual information concerning the purposes and
of its policy of separate development, contending that to establish a
breach of its sub-stantive international obligations under the Mandate
it would be necessary to prove that South Africa had failed to exercise
its powers with a 'view to promoting the well-being and progress of
the inhabitants. The Court found that no factual evidence was needed
for the purpose of determining whether the policy of apartheid in
Namibia was in conformity with the international obligations assumed
by South Africa. It is undisputed that the official governmental policy
pursued by South Africa in Namibia is to achieve a complete physical
separation of racs and ethnic groups.
9. This means the enforcement of distinctions, exclusions, restrictions
and limitations exclusively. based on grounds of race, colour, descent
or national or ethnic origin which constitute a denial of fundamental
human rights. This the Court views as a fla grant violation of the
purposes and principles of the Charter of the United Nations.
10. The Government of South Africa had also submitted a request that a
plebiscite should be held in the Territory of Namibia under the joint
supervision of the Court and the Government of South Africa. The
Court having concluded that no further evidence was required, that the
Mandate had been validly terminated and that in consequences South
Africa's presence in Namibia was illegal and its acts on behalf of or
concerning Namibia illegal and invalid, it was not able to entertain this
proposal.
11. By a letter of 14 May 1971 the President informed the representatives
of the States and organizations which had participated in the oral
proceedings that the Court had decided not to accede to the two above-
mentioned requests.
12. H Judge Sir Gerald Fitzmaurice (dissenting opinion) considers that the
Mandate was not validly revoked, that the Mandatory is still subject to
the obligations of the Mandate what-ever these may be, and that States
Members of the United Nations are bound to respect the position
unless and until it is changed by lawful means.
13. Judge Gros (dissenting opinion) disagrees with the Court's conclusions
as to the legal validity and effects of General Assembly resolution
2145 (XXI),but considers that South Africa ought to agree to negotiate
on the conversion of the Mandate into a United Nations trusteeship.
14. Judges Petren and Onyeama (separate opinions) voted for
subparagraph 1 of the operative clause but against subpara-graphs 2
and 3, which in their view ascribe too broad a scope to the effects of
non-recognition.
15. Judge Dillard (separate opinion), concurring in the operative clause,
adds certain mainly cautionary comments on subparagraph 2.
16. Judges Sir Gerald Fitzmaurice, Gros, Petdn, Onyeama and Dillard also
criticize certain decisions en by the Court with reference to its
composition.
17. The President (declaration) and Judges Padilla Newo and de Caslro
(separate opinions) accept the operative clause in full.
18. The Vice-President (separate opinion), while sharing the views
expressed in the Advisory Opinion, considers that the operative clause
is not sufficiently explicit 01- decisive.
 Goldwater v. Carter (Casey)
December 13, 1979 | Gasch, J. | Exception to the Tax Exemption Strict Interpretation
PETITIONER: Senator Barry Goldwater, other members of US Congress
RESPONDENTS: US Pres. Jimmy Carter
SUMMARY: President Jimmy Carter terminated a treaty with Taiwan and a few
Congressional members felt that this deprived them of their Constitutional function
(they approve actions of the President involving treaties). However, no
Congressional action was taken other than a Resolution that would require the
President to get Senate approval but which had no final vote so nothing happened.
Issue: WoN President’s termination of a treaty without congressional approval is a
non-justiciable political decision - YES
Had the President and Congress reached irreconcilable positions, then it would
have eliminated multiple constitutional interpretations. However, the case stood
simply as a dispute among unsettled competing political forces between the
Legislative and Executive hence political in nature. While the Constitution is express
as to the manner in which the Senate shall participate in the ratification of a treaty, it
is silent as to that body's participation in the abrogation of a treaty. It also
involves foreign relations which the court finds justification in ruling that this case is
political in nature.
DOCTRINE: The Supreme Court left the question of the constitutionality of the
President Carter's action open. Article II, Section II of the Constitution merely states
that the President cannot make treaties without a Senate majority two-thirds vote. As
it stands now, there is no official ruling on whether the President has the power to
break a treaty without the approval of Congress.
FACTS:
1. A lawsuit was filed by Senator Barry Goldwater and other members of the
US Congress challenging the right of President Jimmy Carter to unilaterally
nullify the Sino-American Mutual Defense Treaty, which the US signed
with the Republic of China, so that relations could instead be established
with the People’s Republic of China.
a. President Carter terminated a treaty with Taiwan without
congressional approval
2. Members of the Congress felt that this deprived them of their Constitutional
function, however no Congressional action was ever taken. (no actual
confrontation yet between the 2)
3. The Senate considered a resolution that would require the President to get
Senate approval before any mutual defense treaty could be terminated, but
there was no final vote on the resolution. Moreover, it is unclear whether
the resolution would have any retroactive effect to change the actions of the
President
ISSUE/s:
1. WoN the termination of a treaty by the President without Congressional
approval is a non-justiciable political decision – YES
RULING: Petition for certiorari granted (without hearing oral arguments). The
Court of Appeals ruling is vacated and the case is remanded to the federal district
court with directions to DISMISS the complaint
RATIO:
The case is political in nature and therefore nonjusticiable
1. Whether or not a President can terminate a treaty closely involves his
foreign relations authority and is therefore not reviewable by the SC
2. The present case involves neither review of the President’s activities as
Commander in Chief nor impermissible interference in the field of foreign
affairs.
3. However, it is error to suppose that every case or controversy which touches
foreign relations lies beyond judicial cognizance (based on Baker v. Carr)
4. This case touches “foreign relations” but the question presented to the
Court concerns only the constitutional divison of power between the
Congress and the President
5. The political question doctrine rests in part on prudential concerns calling
for mutual respect among the 3 branches of Govt. The doctrine restrains
judicial action where there is an “unusual need for unquestioning adherence
to a political decision already made”
6. Had the President and Congress reached irreconcilable positions, then it
would have eliminated multiple constitutional interpretations. However,
the case stood simply as a dispute among unsettled competing political
forces between the Legislative and Executive hence political in nature
7. The Court is of the view that the question presented by the petitioners in
this case is “political” and therefore nonjusticiable because it involves the
authority of the President in conducting foreign relations of the US and the
extent to which Senate or Congress is authorized to negate the action of the
President.
a. Coleman v. Miller: Congress in controlling the promulgation of
the adoption of a constitutional amendment has the final
determination of the question whether by lapse of time its
proposal of the amendment had lost its vitality prior to the required
ramifications
8. Following Coleman, the controversy in the instant case is a nonjusticiable
political dispute that should be left for resolution by the Executive and
Legislative Branches of the govt.
a. while the Constitution is express as to the manner in which the
Senate shall participate in the ratification of a treaty, it is silent as
to that body's participation in the abrogation of a treaty.
 b. Article II, Section II of the Constitution: the President cannot
make treaties without a Senate majority two-thirds vote. As it
stands now, there is no official ruling on whether the President has
the power to break a treaty without the approval of Congress
9. Dyer v. Blair: A question that might be answered in different ways for
different amendments must surely be controlled by political standards,
rather than standards easily characterized as judicially manageable
10. The reason for concluding that this is political in nature is because it
involves foreign relations – specifically, a treaty commitment to use
military force in the defense of a foreign govt if attacked

Dissenting Opinion
11. J. Blackmun and J. White:
a. recommends setting the case for oral argument and give the case
plenary consideration
b. If the Pres. has no power to terminate the treaty (substantial issue
addressed only after oral arguments are done), the notice of
intention to terminate surely has no effect
12. J. Brennan:
a. The issue of decisionmaking authority must be resolved as a matter
of constitutional law, not political discretion; accordingly, it falls
within the competence of the courts.
b. Abrogation of the defense treaty with Taiwan was a necessary
incident to Executive recognition of the Peking Government,
because the defense treaty was predicated upon the now-
abandoned view that the Taiwan Government was the only
legitimate political authority in China. A number of juriprudence
firmly establish that the Constitution commits to the President
alone the power to recognize, and withdraw recognition from,
foreign regimes.
 016 Fisheries Jurisdiction Case (United Kingdom v. Iceland) (Cristelle)
July 25, 1974 | Forster, Gros, Bengzon, Petren, Onyeama, Dillard, Ignacio-
Pinto, de Castro, Morozov, Jimenez de Arechaga, Sir Humphrey Waldock,
Nagendra Singh, Ruda, J. | Treaties – Extension by coastal state of fisheries
jurisdiction; fishery zone; preferential rights and concurrent rights of other
states; conservation measures
PETITIONER: United Kingdom
RESPONDENTS: Iceland
Main gist of the case: because some circumstances changed, Iceland claimed
that a fishing treaty it had with the United Kingdom was no longer
applicable.
SUMMARY: An application was filed before the I.C.J. when Iceland proposed
to extend its exclusive fisheries jurisdiction from 12 to 50 miles around its
shores in 1972. Iceland attempted to extend its exclusive fishing rights to 50
nautical miles from the baseline, over its 12-mile allowance. However, Iceland
and the United Kingdom reached an agreement in 1961 stating that the United
Kingdom would recognize the 12-mile fishery zone. Iceland terminated this
agreement in 1971 in which it set up its new fishery zone. The UK challenged
this extension of jurisdiction and sought to submit the case to the International
Court of Justice (ICJ.) The UK relied upon an earlier treaty agreement between
the parties where the UK agreed to recognize Iceland’s twelve-mile exclusive
fisheries jurisdiction in exchange for Iceland’s agreement to submit all disputes
over fisheries jurisdiction to the ICJ. Iceland argued that it was not bound by this
agreement to submit all disputes to the ICJ, however, because of changing legal
circumstances in international law. Iceland argued that the standard, default limit
for exclusive fisheries jurisdiction for states was typically now twelve miles.
This was not the case when Iceland first signed its agreement with the UK,
however, and the agreement to a twelve-mile limit then constituted a
compromise for Iceland. Due to changing trends in international law, Iceland
argued that its previous agreement to the twelve-mile compromise in exchange
for ICJ jurisdiction was now void for lack of consideration on the UK’s part.
Iceland stood to argue that the previous agreement with UK is not valid anymore
due to these changes in circumstances. United Kingdom has been fishing in this
region for many years and brought this issue to the ICJ when Iceland set up its
new parameters. The ICJ found that it had jurisdiction in this matter. M.I.A! -
Iceland failed to take part in the proceedings.
ISSUES: 1. 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? 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 cannot be said to have
transformed radically the extent of the jurisdictional obligation that was imposed
in the 1961 Exchange of Notes.
2. Does Iceland have the right to extend its fishery zone from 12 miles to 50
miles? No, Iceland doesn’t have the right to extend its fishery zone from 12
to 50 miles (bawal sobra greedy much). A fishery zone, “between the
territorial sea and the high seas, within the coastal State could claim exclusive
fisheries jurisdiction.” This area has been accepted to be 12 miles from its
baseline. In international law, if a general practice is accepted by states and is
practiced, then this concept is law.
3. What role does the agreement between Iceland and United Kingdom play
within the court’s decision? A signed agreement/treaty between two nations
is binding agreement that must be upheld between nations. This agreement
also proves and shows that Iceland accepted the 12-mile fishery zone
jurisdiction and was content with it. Thus, the UK has 2 factors that play
favorably in the courts eyes; the facts of the case line up with International Law
and an agreement was struck between both nations that lined up with what
International Law would allow. ICELAND DIDN’T FOLLOW THE
SIGNED AGREEMENT WITH UK.
4. What is the law of the high seas and has it been established? Can it be
enforced?
According to the United Nations Conference on the Law of the Sea it declared
freedom of the high seas and this freedom is to be exercised by all states.
However, nothing arouses from these conferences concerning fishery
jurisdiction and where it stops. A zone between the territorial zone and the
high sea is where fishery jurisdiction stops. Although it was not established
in a treaty, states accepted this general rule of a 12-mile fishery zone and
given that Iceland did not protest this rule it thus gave consent to it.
DOCTRINE: Iceland argued that the 1961 Exchanges of Notes took place when
the British Navy had been using force to oppose the 12-mile fishery limit of
Iceland and that they were void ab initio. The Court rejected the argument
because there was no concrete evidence of use of force and stated: “The 1961
Exchange of Notes were freely negotiated by the interested parties on the basis
of perfect equality and freedom of decision on both sides.
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.
Recourse to the I.C.J. in the event of a dispute was the original agreement
between the parties.
FACTS:
1. 1948 - Icelandic Parliament passed a law on the scientific conservation of
the continental shelf fisheries. The law was aimed at protecting Icelandic
fishing resources since the economy of Iceland depends on fishing in the
vicinity of its coasts.
2. The law empowered the Government to establish conservation zones, where
all fisheries would be subject to Icelandic rules and control, to the extent
compatible with agreements with other countries.
3. 1958 - Iceland proclaimed a 12-mile exclusive fishing zone and prohibited
all foreign vessels from engaging in any fishing activity within the new
zone.
4. DISPUTE: 1948 law as well as the 1958 proclamation resulted in a dispute
with the United Kingdom, whose vessels had traditionally fished in the area.
5. There were a number of incidents between Icelandic naval craft and British
fishery protection vessels.
6. 11 March 1961, the two Governments ended their dispute with an Exchange
of Notes constituting an agreement between them.
a. The Notes, inter alia, specified that the United Kingdom would no
longer object to a 12-mile fishery zone, that Iceland would
continue to work for the implementation of its Parliament’s
resolution of 1959 but would give the United Kingdom six-month
notice of any extension of its fisheries jurisdiction and that, in case
of a dispute in relation to such extension, the matter would be, at
the request of either party, referred to the International Court of
Justice.
7. SURPRISE ATTACK BY ICELAND – in 1971, Icelandic Government
announced that the agreement on fisheries jurisdiction with the United
Kingdom would be terminated and that the limit of exclusive Icelandic
fisheries jurisdiction would be extended to 50 miles.
8. In reply, the United Kingdom emphasized that the 1961 Exchange of Notes
was not open to unilateral denunciation and that in its view the measure
contemplated by Iceland would have no basis in international law.
9. FAILURE OF NEGOTIATIONS ☹
a. 14 April 1972 - UK applied to the International Court of Justice
(ICJ).
b. Iceland did not appear and did not appoint an agent. It also
contended that the 1961 Exchange of Notes was no longer in force
and that the Court did not have jurisdiction.
10. NEW FISHING REGULATIONS MADE BY ICELAND:
a. 14 July 1972, new fisheries regulations extending its fishery limits
to 50 miles and prohibiting all fishing activities by foreign vessels
inside those limits. The enforcement of the regulations resulted in a
series of incidents involving British and Icelandic vessels.
11. 19 July 1972 - the UK filed a request for interim measures of protection
(interim measures of protection are provisional reliefs that any party to an
arbitration agreement may ask for from the arbitral tribunal or, in
appropriate cases, the courts).
12. NEW EXCHANGE OF NOTES/AGREEMENT: 13 November 1973, the
two Governments reached an interim agreement by an Exchange of Notes,
which provided that British vessels would be entitled, for a 2-year period, to
catch no more than 130,000 metric tons of fish per year in the disputed area.
13. TEMPORARY CEASEFIRE: The 1973 Exchange of Notes also provided
for temporary arrangements “pending a settlement of the substantive dispute
and without prejudice to the legal position or rights of either Government”.
14. UK’s Contention:
a. Claimed that the Court had jurisdiction by virtue of the
compromissory clause contained in the 1961 Exchange of Notes.
b. Iceland's claim to a 50-mile fishing limit was without foundation in
international law and, hence, invalid
c. Iceland was not entitled to assert an exclusive fisheries jurisdiction
beyond the limits agreed to in the 1961 Exchange of Notes
d. Iceland could not unilaterally exclude United Kingdom fishing
vessels from the disputed area
e. Parties were under a duty to examine together the need for
conservation of fish stocks and, if such a need was proved, to
establish a regime which recognized both the preferential rights of
Iceland as a coastal State dependent on fishing and the rights of the
United Kingdom and other interested States.
f. UK’s vessels had been fishing in Icelandic waters for centuries,
that they had done so in a manner comparable with their present
activities for upwards of fifty years and that their exclusion would
have very serious and harmful consequences
g. Economic dependence and livelihood of whole communities in the
United Kingdom that shared the same interest in the conservation
of fish stocks as Iceland, which had for its part admitted the
existence of the applicant’s historic and special interests in fishing
in the disputed waters, would be adversely affected by such an
exclusion.
15. Moreover, the United Kingdom was of the view that Iceland’s 1972
regulations were not opposable to it since those regulations disregarded the
established rights of the United Kingdom and the terms of the 1961
Exchange of Notes. The regulations also constituted an infringement on the
principle of reasonable regard for the interests of other States set out in
article 2 of the 1958 Geneva Convention on the High Seas.
16. Iceland’s contention - in a letter addressed to the Court, claimed that the
clause did not apply to the dispute; that the 1961 Exchange of Notes had
been concluded after British warships had used force to protect trawlers;
that the Exchange of Notes was not a permanent agreement (because a
compromissory clause cannot be of a permanent nature) and Iceland had
exercised her right to terminate it; that since Iceland was now entitled to a
12-mile fisheries limit as of right, the United Kingdom was no longer
providing consideration for Iceland's promises; and that changes in the law
of the sea and in fishing techniques constituted a fundamental change of
circumstances, which rendered the 1961 Exchange of Notes inoperative.
ISSUES:
1. Whether or not there was any foundation in international law for Iceland’s
establishment of a zone of exclusive fisheries jurisdiction extending to 50
miles from the baselines and, if not, whether its claim should be deemed
invalid?
 2. Whether or not the conservation of fish stocks in the waters around Iceland
might be susceptible in international law to regulation by Iceland’s
unilateral extension of its exclusive fisheries jurisdiction, or could be
regulated, as between Iceland and the United Kingdom, by arrangements
agreed between them?
RULING: On 17 August 1972, on interim measures, by fourteen votes to one,
the Court indicated interim measures substantially similar to those sought by
the United Kingdom. In particular:
(a) The United Kingdom and Iceland should ensure that no action of any kind is
taken which might aggravate or extend the dispute submitted to the Court;
(b) The United Kingdom and Iceland should ensure that no action is taken which
might prejudice the rights of the other Party in respect of the carrying out of
whatever decision on the merits the Court may render;
(c) Iceland should refrain from taking any measures to enforce the Regulations of 14
July 1972 against vessels registered in the United Kingdom and engaged in fishing
activities in the waters around Iceland outside the 12-mile fishery zone;
(d) Iceland should refrain from applying administrative, judicial or other measures
against ships registered in the United Kingdom, their crews or other related persons
because of their having engaged in fishing activities in the waters around Iceland
outside the 12-mile fishery zone;
(e) The United Kingdom should ensure that vessels registered in the United
Kingdom do not take an annual catch of more than 170,000 metric tons of fish from
the "Sea Area of Iceland" as defined by the International Council for the Exploration
of the Sea; and
(f) The United Kingdom should furnish Iceland and the Registry of the Court with all
Relevant information, orders issued and arrangements made concerning the control
and regulation of fish catches in the area.
On 2 February 1973, on the question of jurisdiction, by fourteen votes to
one, the Court held that it had jurisdiction under the 1961 Exchange of Notes,
which remained a valid and effective treaty.
On 12 July 1973, on the continuance of interim measures, by eleven votes to
three, the Court held that the interim measures indicated in the Order of 17August
1972 would remain operative until the Court rendered its final Judgments in the case.
On 25 July 1974, on the merits, by ten votes to four, the Court:
• Found that the Icelandic Regulations of 1972 constituting a unilateral extension
of the exclusive fishing rights of Iceland to 50 nautical miles from the baselines
were not opposable to the United Kingdom;
• Found that Iceland was not entitled to exclude unilaterally United Kingdom
fishing vessels from areas between the 12-mile and 50-mile limits or unilaterally
to impose restrictions on their activities in such areas;
• Held that Iceland and the United Kingdom were under mutual obligation to
undertake negotiations in good faith for an equitable solution of their
differences; and
• Indicated certain factors which were to be taken into account in the negotiations
(preferential rights of Iceland, established rights of the United Kingdom,
interests of other States, conservation of fishery resources, joint examination of
measures required).
MAIN POINT: The court’s ruling in favor of the United Kingdom is important
when it comes to international law. It shows that the courts follow the rules and laws
exactly as stated or practice and does not judge based off of what is to come (a law
change). A court must take the facts as is and base their judgments off of that. As
well it provides a written account of the 12-mile fishery jurisdiction that many of the
states have consented to. But most importantly it shows and proves the theory of
‘silence leads to consent.’ A state cannot follow certain regulations for years and
then change its views immediately because a new favorable opportunity has
risen. A state must speak up with any concerns it may have and if it doesn’t it
must then follow the rules it has agreed to.
RATIO:
1. The Court considered that Iceland's failure to appear did not constitute by
itself an obstacle to the indication of interim measures. It further stated that
the request for interim measures, which sought to protect the right of fishing
in the area in question, was directly linked to the original Application by the
United Kingdom.
2. As regards jurisdiction, the Court found that on a request for interim
measures it was not necessary for the Court to satisfy itself conclusively
that it had jurisdiction, unless the absence of jurisdiction was manifest. The
Court held that the compromissory clause in the 1961 Exchange of
Notes accorded it, prima facie, jurisdiction to hear the case.
3. ICJ found the compromissory clause in the 1961 Exchange of Notes was
intended to cover the type of dispute in question. The Court rejected
Iceland's argument that it had entered into the 1961 Exchange of Notes due
to force exerted by the United Kingdom.
4. If the force was proven the treaty would be void under the United Nations
Charter and article 52 of the Vienna Convention on the Law of Treaties.
The history of negotiations revealed that the agreement was “freely
negotiated by the interested Parties on the basis of perfect equality and
freedom of decision on both sides.
5. As to Iceland’s right to terminate the agreement, the Court found that
the compromissory clause made the Exchange of Notes a non-
permanent agreement. However, the 1961 Exchange of Notes did not
establish a definitive time limit for the extension of Iceland's fisheries
jurisdiction. The right to invoke the Court’s jurisdiction would only
materialize if Iceland made a claim to extend its fishery limits.
Therefore, there could be no specification of a time limit for the
corresponding right of the United Kingdom to challenge such extension and
invoke the Court's jurisdiction.
6. CONTENTION OF ICELAND: a change of circumstances with respect to
fisheries and fishing techniques as well as to changes regarding "legal
opinion on fisheries jurisdiction". It contended that the right of exclusive
fisheries jurisdiction to a distance of 12 miles had been increasingly
 recognized and claimed by States, including the United Kingdom, relieving
Iceland of its commitment because of the changed legal circumstances.
7. Iceland’s contention was not relevant. The object and purpose of the
Exchange of Notes was wider in scope than merely deciding upon the
Icelandic claim to fisheries jurisdiction up to 12 miles. The Notes also
provided a means whereby the Parties could resolve the question of the
validity of any further claims.
8. CHANGED CIRCUMSTANCES:
a. Iceland made references to "the changed circumstances resulting
from the ever increasing exploitation of the fishery resources in the
seas surrounding Iceland", basing itself on the principle of
termination of a treaty by reason of change of circumstances.
b. International law admits that a fundamental change in the
circumstances, which prompted the Parties to accept a treaty,
may, under certain conditions afford the Party affected a ground
for invoking the termination or suspension of a treaty.
c. Iceland alleged that developments in fishing techniques constituted
such a fundamental change. UK contended that the alterations and
progress in fishing techniques had not produced the consequences
apprehended by Iceland. Therefore the changes was not
fundamental and vital character.
d. IF THE ALLEGED CHANGE DID EXIST IT WILL HAVE NO
RELEVANCE FOR THE MERITS STAGE OF THE
PROCEEDINGS.
9. As for the law, although it was to be regretted that Iceland had failed to
appear, the Court was nevertheless deemed to take notice of international
law. Having taken account of the legal position of each Party, the Court
considered that it had before it the elements necessary to enable it to deliver
a judgment.
10. 1958 Convention on the High Seas. Article 2 of the Convention declared
the principle of the freedom of the high seas to “be exercised by all States
with reasonable regard to the interests of other States in their exercise of
the freedom of the high seas”.
11. Breadth of the territorial sea and of the extent of the coastal State’s fishery
jurisdiction two concepts had since crystallized as customary law:
a. fishery zone between the territorial sea and the high seas,
within which the coastal State could claim exclusive fisheries
jurisdiction, could extend to a 12-mile limit;
b. a coastal State, in a situation of special dependence on its
fisheries, was to benefit from preferential fishing rights in
waters adjacent to the zone of exclusive fishing.
12. The United Kingdom had expressly recognized the preferential rights of
Iceland in the disputed waters beyond the 12-mile limit, and the exceptional
dependence of Iceland on its fisheries and its primary need to preserve fish
stocks in the interest of rational and economic exploitation were
unquestionable. However, the notion of preferential fishery rights for the
coastal State in a situation of special dependence, though it implied a certain
priority, could not imply the extinction of the concurrent rights of other
States. The fact that Iceland was entitled to claim preferential rights did not
suffice to justify its claim to exclude British fishing vessels from all fishing
beyond the limit of 12 miles agreed to in 1961.
13. HISTORICAL PRESENCE OF UK IN THE DISPUTED WATERS
a. To reach an equitable solution to the dispute, the Court found it
necessary to reconcile the preferential fishing rights of Iceland
with the traditional fishing rights of the United Kingdom through
appraisal of the relative dependence of either State on the fisheries
in question.
b. While Iceland did not have the right to exclude unilaterally British
vessels from fishing in the disputed area, the United Kingdom had
the obligation to respect Iceland’s preferential fishing rights in the
12-mile to 50-mile zone.
14. The Parties had the obligation to reach a negotiated settlement in order to
take the appropriate measures required for the conservation and
development of fishery resources.
15. Iceland's extension of its exclusive fishery jurisdiction beyond 12 miles
was not opposable to the United Kingdom; that Iceland could on the
other hand claim preferential rights in the distribution of fishery
resources in the adjacent waters; that the United Kingdom also had
established rights with respect to the fishery resources in question; and
that the principle of reasonable regard for the interests of other States
enshrined in article 2 of the 1958 Geneva Convention on the High seas
required Iceland and the United Kingdom to have due regard for each
other's interests and the interests of other States in those resources.
IMPORTANT PRINCIPLES:
1. The international law elements of the case are the
a. laws of the sea
b. the theory that silence leads to consent, and
c. sub specie legis ferendae - Under pretense of [what is to be]
proposed (as law). Done with intent to improve or otherwise alter
the current.
2. The rule of law that was used in this case was the general rule under the
United Nations Conference on the Law of the Sea. This conference set out
to establish rules and regulations for the sea. Although there was no written
rule for fishery jurisdiction, silent consent was given to the 12-mile
regulation thus making it law. Although the ICJ knew that talk was going to
happen to increase this area, it could not anticipate such a change (sub
specie legis ferendae) and needed to wait until it was written down.
3. The UK has been fishing in these waters for centuries without any issues.
Since Iceland had no issues prior to this incident, the United Kingdom had
become a permanent part within the region and cannot be removed. Silence
lead to consent, thus if a state has an issue with a certain action, it should
speak up.
 HUNGARY v SLOVAKIA (Clark)
September 25, 1997 | International Court of Justice |
PETITIONER: Hungary
RESPONDENTS: Slovakia
SUMMARY: In its Judgment in the case concerning Gabcikovo-Nagymaros
Project (Hungary/Slovakia), the Court found that Hungary was not entitled to
suspend and subsequently abandon, in 1989, its part of the works in the dam
project, as laid down in the treaty signed in 1977 by Hungary and
Czechoslovakia and related instruments. It also found that Czechoslovakia was
entitled to start, in November 1991, preparation of an alternative provisional
solution (called "Variant C"), but not to put that solution into operation in
October 1992 as a unilateral measure. Furthermore, the Court found that
Hungary's notification of termination of the 1977 Treaty and related instruments
on 19 May 1992 did not legally terminate them (and that they are consequently
still in force and govern the relationship between the Parties). Lastly, that
Slovakia, as successor to Czechoslovakia became a party to the Treaty of 1977.
As to the future conduct of the Parties, the Court found that Hungary and
Slovakia must negotiate in good faith in the light of the prevailing situation and
must take all necessary measures to ensure the achievement of the objectives of
the 1977 Treaty. Unless the Parties agree otherwise, a joint operational regime
for the dam on Slovak territory must be estab1ished in accordance with the
Treaty of 1977 and each Party must compensate the other Party for the damage
caused by its conduct. The accounts for the construction and operation of the
works must also be settled in accordance with the relevant provisions of the 1977
Treaty and its related instruments. The Court also held that newly developed
norms of environmental law are relevant for the implementation of the Treaty
and that the Parties could, by agreement, incorporate them through the
application of several of its articles. It found that the Parties, in order to reconcile
economic development with protection of the environment, "should look afresh
at the effects on the environment of the operation of the Gabcikovo power plant.
In particular, they must find a satisfactory solution for the vo1ume of water to be
released into the old bed of the Danube and into the side-arms of the river.
DOCTRINE: The Court observes, first of all, that the state of necessity is a
ground recognized by customary international law for precluding the
wrongfulness of an act not in conformity with an international obligation. It
considers moreover that such ground for precluding wrongfulness can only be
accepted on an exceptional basis.
The following basic conditions set forth in Article 33 of the Draft Article on the
International Responsibility of States by the International Law Commission are
relevant in the present case:
1. It must have been occasioned by an "essential interest" of the State
which is the author of the act conflicting with one of its international
obligations;
2. That interest must have been threatened by a "grave and imminent
peril";
3. The act being challenged must have been the "only means" of
safeguarding that interest;
4. That act must not have "seriously impaired an essential interest" of the
State towards which the obligation existed;
5. The State which is the author of that act must not have "contributed to
the occurrence of the state of necessity".
FACTS:
1. The Court begins by recalling that proceedings had been instituted on 2 July
1993 by a joint notification, by Hungary and Slovakia, of a Special
Agreement, signed at Brussels on 7 April 1993. After setting out the text of
the Agreement, the Court recites the successive stages of the proceedings,
referring, among other things, to its visit, on the invitation of the parties to
the area, from 1 to 4 April 1997.
2. The Court recalls that the present case arose out of the signature, on 16
September 1977, by the Hungarian People's Republic and the Czechoslovak
People's Republic, of a treaty "concerning the construction and operation of
the Gabcilcovo-Nagymaros System of Locks" (hereinafter called the "1977
Treaty"). The names of the two contracting States have varied over the
years; they are referred to as Hungary and Czechoslovakia.
3. The 1977 Treaty entered into force on 30 June 1978. It provides for the
construction and operation of a System of Locks by the parties as a "joint
investment". According to its Preamble, the system was designed to attain
"the broad utilization of the natural resources of the Bratislava-Budapest
section of the Danube river for the development of water resources, energy,
transport, agriculture and other sectors of the national economy of the
Contracting Parties".
4. The joint investment was thus essentially aimed at the production of
hydroelectricity, the improvement of navigation on the relevant section of
the Danube and the protection of the areas along the banks against flooding.
At the same time, by the terms of the Treaty, the contracting parties
undertook to ensure that the quality of water in the Danube was not
impaired as a result of the Project, and that compliance with the obligations
for the protection of nature arising in connection with the construction and
operation of the System of Locks would be observed.
5. The sector of the Danube river with which this case is concerned is a stretch
of approximately 200 kilometers, between Bratislava in Slovakia and
Budapest in Hungary.
6. The 1977 Treaty describes the principal works to be constructed in
pursuance of the Project. It provided for the building of two series of locks,
one at Gabcikovo (in Czechoslovak territory) and the other at Nagymaros
(in Hungarian territory), to constitute "a single arid indivisible operational
system of works". The Treaty further provided that the technical
specifications concerning the system would be included in the "Joint
 Contractual Plan" which was to be drawn up in accordance with the
Agreement signed by the two Governments for this purpose on 6 May 1976.
It also provided for the construction, financing and management of the
works on a joint basis in which the Parties participated in equal measure.
7. The Court observes that the Project was thus to have taken the form of an
integrated joint project with the two contracting parties on an equal footing
in respect of the financing, construction and operation of the works. Its
single and indivisible nature was to have been realized through the Joint
Contractual Plan which complemented the Treaty. In particular, Hungary
would have had control of the sluices at Dunakiliti and the works at
Nagymaros, whereas Czechoslovakia would ha.ve had control of the works
at Gabcikovo.
8. As a result of intense criticism which the Project had generated in Hungary,
the Hungarian Government decided on 13 May 1989 to suspend the works
at Nagymaros pending the completion of various studies which the
competent authorities were to finish before 31 July 1989.
9. On 21 July 1989, the Hungarian Government extended the suspension of
the works at Nagymaros until 31 October 1989, and, in addition, suspended
the works at Dunakiliti until the same date. Lastly, on 27 October 1989,
Hungary decided to abandon the works at Nagymaros and to maintain the
status quo at Dunakiliti.
10. During this period, negotiations took place between the parties.
Czechoslovakia also started investigating alternative solutions. One of
them, an alternative solution subsequently known as "Variant C", entailed a
unilateral diversion of the Danube by Czechoslovakia on its territory some
10 kilometers upstream of Dunakiliti. In its final stage, Variant C included
the construction at Cunovo of an overflow dam and a levee linking that dam
to the south bank of the bypass canal. Provision was made for ancillary
works.
11. On 23 July 1991, the Slovak Government decided "to begin, in September
1991, construction to put the Gabcikovo Project into operation by the
provisional solution". Work on Variant C began in November 1991.
Discussions continued between the two parties but to no avail, and, on 19
May 1992, the Hungarian Government transmitted to the Czechoslovak
Government a Note Verbale terminating the 1977 Treaty with effect from
25 May 1992. On 15 October 1992, Czechoslovakia began work to enable
the Danube to be closed and, starting on 23 October, proceeded to the
damming of the river.
12. The Court finally takes note of the fact that on 1 January 1993 Slovakia
became an independent State; that in the Special Agreement thereafter
concluded between Hungary and Slovakia the Parties agreed to establish
and implement a temporary water management regime for the Danube; and
that finally they concluded an Agreement in respect of it on 19 April 1995,
which would come to an end, 14 days after the Judgment of the Court. The
Court also observes that not only the 1977 Treaty, but also the "related
instruments" are covered in the preamble to the Special Agreement and that
the Parties, when concentrating their reasoning on the 1977 Treaty, appear
to have extended their arguments to the "related instruments".
ISSUES:
With regard to Article 2, paragraph 1, of the Special Agreement:
1. WoN Republic of Hungary was entitled to suspend and subsequently
abandon, in 1989, the works on the Nagymaros Project and on the part
of the Gabcikovo Project for which the Treaty attributed responsibility
to the Republic of Hungary – NO
2. WoN the Czech and Slovak Federal Republic was entitled to proceed,
in November 1991, to the 'provisional solution' – YES
3. WoN the Czech and Slovak Federal Republic was entitled to put it into
operation from October 1992 this system – NO
4. WoN the notification on 19 May 1992, of the termination of the Treaty
of September 1977 and related instruments by Hungary did not have
the legal effect of terminating them – YES
With regard to Article 2, paragraph 2, and Article 5 of the Special Agreement:
5. WoN Slovakia, as successor to Czechoslovakia, became a party to the
Treaty of 16 September 1977 as from 1 January 1993 – YES
6. WoN Hungary and Slovakia must negotiate in good faith in the light of the
prevailing situation, and must take all necessary measures to ensure the
achievement of the objectives of the Treaty of 16 September 1977, in
accordance with such modalities as they may agree upon – YES
7. WoN a joint operational regime must be established in accordance with the
Treaty of 16 September 1977 – YES
8. WoN Hungary shall compensate Slovakia for the damage sustained by
Czechoslovakia and by Slovakia on account of the suspension and
abandonment by Hungary of works for which it was responsible, and WoN
Slovakia shall compensate Hungary for the damage it sustained on account
of the putting into operation of the “provisional solution” by
Czechoslovakia and its maintenance in service by Slovakia – YES
9. WoN the settlement of accounts for the construction and operation of the
works must be effected in accordance with the relevant provisions of the
Treaty of 16 September 1977 and related instruments, taking due account of
such measures as will have been taken by the Parties in application of points
2 B and C of the present operative paragraph – YES
*I enumerated all the issues but yung mga nakabold yung may discussion sa Ratio
and yun lang talaga may discussion sa case
RULING: SOBRANG HABA but it just reiterated the issues and who voted for and
against it
RATIO:
WoN Republic of Hungary was entitled to suspend and subsequently abandon, in
1989, the works on the Nagymaros Project and on the part of the Gabcikovo Project
for which the Treaty attributed responsibility to the Republic of Hungary – NO
1. The Court cannot accept Hungary's argument to the effect that, in 1989, in
suspending and subsequently abandoning the works for which it was still
responsible at Nagymaros and at Dunakiliti, it did not suspend the
application of the 1977 Treaty itself or then reject that Treaty. The conduct
of Hungary at that time can only be interpreted as an expression of its
unwillingness to comply with at least some of the provisions of the Treaty
and the Protocol of 6 February 1989, as specified in the Joint Contractual
Plan. The effect of Hungary's conduct was to render impossible the
accomplishment of the system of works that the Treaty expressly described
as "single and indivisible".
2. The Court then considers the question of whether there was, in 1989, a state
of necessity which would have permitted Hungary, without incurring
international responsibility, to suspend and abandon works that it was
committed to perform in accordance with the 1977 Treaty and related
instruments.
3. The Court observes, first of all, that the state of necessity is a ground
recognized by customary international law for precluding the
wrongfulness of an act not in conformity with an international
obligation. It considers moreover that such ground for precluding
wrongfulness can only be accepted on an exceptional basis.
4. The following basic conditions set forth in Article 33 of the Draft
Article on the International Responsibility of States by the
International Law Commission are relevant in the present case:
a. It must have been occasioned by an "essential interest" of the
State which is the author of the act conflicting with one of its
international obligations;
b. That interest must have been threatened by a "grave and
imminent peril";
c. The act being challenged must have been the "only means" of
safeguarding that interest;
d. That act must not have "seriously impaired an essential
interest" of the State towards which the obligation existed;
e. The State which is the author of that act must not have
"contributed to the occurrence of the state of necessity".
5. Those conditions reflect customary international law. The Court has no
difficulty in acknowledging that the concerns expressed by Hungary for its
natural environment in the region affected by the Gabcikovo-Nagymaros
Project related to an "essential interest" of that State.
6. It is of the view, however, that, with respect to both Nagymaros and
Gabcikovo, the perils invoked by Hungary, without prejudging their
possible gravity, were not sufficiently established in 1989, nor were they
"imminent"; and that Hungary had available to it at that time means of
responding to these perceived perils other than the suspension and
abandonment of works with which it had been entrusted. What is more,
negotiations were under way which might have led to a review of the
Project and the extension of some of its time limits, without there being
need to abandon it.
7. The Court further notes that Hungary when it decided to conclude the 1977
Treaty, was presumably aware of the situation as then known; and that the
need to ensure the protection of the environment had not escaped the
parties. Neither can it fail to note the positions taken by Hungary after the
entry into force of the 1977 Treaty.
8. The Court infers that, in the present case, even if it had been established that
there was, in 1989, a state of necessity linked to the performance of the
1977 Treaty, Hungary would not have been permitted to rely upon that state
of necessity in order to justify its failure to comply with its treaty
obligations, as it had helped, by act or omission to bring it about.
9. In the light of the conclusions reached above, the Court finds that Hungary
was not entitled to suspend and subsequently abandon, in 1989, the works
on the Nagymaros Project and on the part of the Gabcikovo Project for
which the 1977 Treaty and related instruments attributed responsibility to it.
WoN the Czech and Slovak Federal Republic was entitled to proceed, in November
1991, to the 'provisional solution' – YES
1. Czechoslovakia had maintained that proceeding to Variant C and putting it
into operation did not constitute internationally wrongful acts; Slovakia
adopted this argument.
2. During the proceedings before the Court Slovakia contended that Hungary's
decision to suspend and subsequently abandon the construction of works at
Dunakiliti had made it impossible for Czechoslovakia to carry out the works
as initially contemplated by the 1977 Treaty and that the latter was therefore
entitled to proceed with a solution which was as close to the original Project
as possible.
3. Slovakia invoked what it described as a "principle of approximate
application" to justify the construction and operation of Variant C. It
explained that this was the only possibility remaining to it "of fulfilling not
only the purposes of the 1977 Treaty, but the continuing obligation to
implement it in good faith'".
4. The Court observes that it is not necessary to determine whether there is a
principle of international law or a general principle of law of "approximate
application" because, even if such a principle existed, it could by definition
only be employed within the limits of the treaty in question. In the view of
the Court, Variant C does not meet that cardinal condition with regard to the
1977 Treaty.
5. As the Court has already observed, the basic characteristic of the 1977
Treaty is, according to Article 1, to provide for the construction of the
Gabcikovo-Nagymaros System of Locks as a joint investment constituting a
single and indivisible operational system of works. This element is equally
reflected in Articles 8 and 10 of the Treaty providing for joint ownership of
the most important works of the Gabcikovo-Nagymaros project and for the
operation of this joint property as a coordinated single unit.
 6. By definition, all this could not be carried out by unilateral action. In spite
of having a certain external physical similarity with the original Project,
Variant C thus differed sharply from it in its legal characteristics. The Court
accordingly concludes that Czechoslovakia, in putting Variant C into
operation, was not applying the 1977 Treaty but, on the contrary, violated
certain of its express provisions, and, in so doing committed an
internationally wrongful act.
7. The Court notes that between November I991 and October 1992,
Czechoslovakia confined itself to the execution, on its own territory, of the
works which were necessary for the implementation of Variant C, but
which could have been abandoned if an agreement had been reached
between the parties and did not therefore predetermine the final decision to
be taken. For as long as the Danube had not been unilaterally dammed,
Variant C had not in fact been applied.
8. Such a situation is not unusual in international law or, for that matter, in
domestic law. A wrongful act or offense is frequently preceded by
preparatory actions which are not to be confused with the act or offence
itself. It is as well to distinguish between the actual commission of a
wrongful act (whether instantaneous or continuous) and the conduct prior to
that act which is of a preparatory character and which "does not qualify as a
wrongful act".
9. Slovakia also maintained that it was acting under a duty to mitigate
damages when it carried out Variant C. It stated that "It is a general
principle of international law that a party injured by the non-performance of
another contract party must seek to mitigate the damage he has sustained."
But the Court observes that, while this principle might thus provide a basis
for the calculation of damages, it could not, on the other hand, justify an
otherwise wrongful act. The Court further considers that the diversion of the
Danube carried out by Czechoslovakia was not a lawful countermeasure
because it was not proportionate.
10. In the light of the conclusions reached above, the Court finds that
Czechoslovakia was entitled to proceed, in November 1991, to Variant C
insofar as it then confined itself to undertaking works which did not
predetermine the final decision to be taken by it. On the other hand,
Czechoslovakia was not entitled to put that Variant into operation from
October 1992.
What are the legal effects of the notification, on 19 May 1992, of the termination of
the Treaty by the Republic of Hungary?
1. During the proceedings, Hungary presented five arguments in support of
the lawfulness, and thus the effectiveness, of its notification of termination.
These were the existence of a state of necessity; the impossibility of
performance of the Treaty; the occurrence of a fundamental change of
circumstances; the material breach of the Treaty by Czechoslovakia; and.
finally, the development of new norms of international environmental law.
Slovakia contested each of these grounds.
2. State of Necessity – The Court observes that, even if a state of necessity is
found to exist, it is not a ground for the termination of a treaty. It may only
be invoked to exonerate from its responsibility a State which has failed to
implement a treaty.
3. Impossibility of Performance of the Treaty – The Court finds that it is
not necessary to determine whether the term "object" in Article 61 of the
Vienna Convention of 1969 on the Law of Treaties (which speaks of
"permanent disappearance or destruction of an object indispensable for the
execution of the treaty" as a ground for terminating or withdrawing from it)
can also be understood to embrace a legal regime as in any event, even if
that were the case, it would have to conclude that in this instance that
regime had not definitively ceased to exist.
4. Occurrence of a Fundamental Change of Circumstances – In the Court's
view, the prevalent political conditions were not so closely linked to the
object and purpose of the Treaty that they constituted an essential basis of
the consent of the parties and, in changing, radically altered the extent of
the obligations still to be performed. The same holds good for the economic
system in force at the time of the conclusion of the 1977 Treaty. Nor does
the Court consider that new developments in the state of environmental
knowledge and of environmental law can be said to have been completely
unforeseen. What is more, the formulation of Articles 15, 19 and 20 is
designed to accommodate change. The changed circumstances advanced by
Hungary are thus, in the Court's view, not of such a nature, either
individually or collectively, that their effect would radically transform the
extent of the obligations still to be performed in order to accomplish the
Project.
5. Material breach of the Treaty by Czechoslovakia – Hungary's main
argument for invoking a material breach of the Treaty was the construction
and putting into operation of Variant C. The Court pointed out that it had
already found that Czechoslovakia violated the Treaty only when it diverted
the waters of the Danube into the bypass canal in October 1992. In
constructing the works which would lead to the putting into operation of
Variant C, Czechoslovakia did not act unlawfully. In the Court's view,
therefore, the notification of termination by Hungary on 19 May 1992 was
premature. No breach of the Treaty by Czechoslovakia had yet taken place
and consequently Hungary was not entitled to invoke any such breach of
the Treaty as a ground for terminating it when it did.
6. Development of New Norms of International Environmental Law – The
Court notes that neither of the Parties contended that new peremptory
norms of environmental law had emerged since the conclusion of the 1977
Treaty. the Court wishes to point out that newly developed norms of
environmental law are relevant for the implementation of the Treaty and
that the parties could, by agreement, incorporate them through the
application of Articles 15, 19 and 20 of the Treaty. These articles do not
 contain specific obligations of performance but require the parties, in financial claims and counter-claims. At the same time, the Court wishes to
carrying out their obligations to ensure that the quality of water in the point out that the settlement of accounts for the construction of the works is
Danube is not impaired and that nature is protected, to take new different from the issue of compensation and must be resolved in
environmental norms into consideration when agreeing upon the means to accordance with the 1977 Treaty and related instruments. If Hungary is to
be specified in the Joint Contractual Plan. share in the operation and benefits of the Cunovo complex, it must pay a
7. The Court is also of the view that although it has found that both Hungary proportionate share of the building and running costs.
and Czechoslovakia failed to comply with their obligations under the 1977
Treaty, this reciprocal wrongful conduct did not bring the Treaty to an end
nor justify its termination. In this regard, the Court finds that the
notification of termination by Hungary of 19 May 1992 did not have the
legal effect of terminating the 1977 Treaty and related instruments.
WoN Slovakia, as successor to Czechoslovakia, became a party to the Treaty of 16
September 1977 from 1 January 1993 – YES
1. Hungary contended that even if the Treaty survived the notification of
termination, in any event it ceased to be in force as a treaty on 31 December
1992, as a result of the “disappearance of one of the parties.”
2. The Court considers that Article 12 reflects a rule of customary
international law and notes that neither of the parties disputed this. It
concludes that the content of the 1977 Treaty indicates that it must be
regarded as establishing a territorial regime within the meaning of Article
12 of 1978 Vienna Convention. It created rights and obligations attaching to
the parts of the Danube to which it relates; thus the Treaty itself could not
be affected by a succession of States. Therefore, the 1977 Treaty become
binding upon Slovakia on 1 January 1993.

Legal Consequences
1. What is required in the present case by the rule pacta sunt servanda, as
reflected in Article 26 of the Vienna Convention of 1969 on the Law of
Treaties, is that the Parties find an agreed solution within the co-operative
context of the Treaty. Article 26 combines two elements, which are of equal
importance. It provides that "Every treaty in force is binding upon the
parties to it and must be performed by them in good faith". This latter
element, in the Court's view, implies that, in this case, it is the purpose of
the Treaty, and the intentions of the parties in concluding it. which should
prevail over its literal application. The principle of good faith obliges the
Parties to apply it in a reasonable way and in such a manner that its purpose
can be realized.
2. The Court has concluded that both Parties committed internationally
wrongful acts, and it has noted that those acts gave rise to the damage
sustained by the Parties; consequently, Hungary and Slovakia are both
under an obligation to pay compensation and are both entitled to obtain
compensation.
3. Given the fact, that there have been intersecting wrongs by both Parties, the
issue of compensation could satisfactorily be resolved in the framework of
an overall settlement if each of the Parties were to renounce or cancel all
 18 SEI FUJII v. STATE OF CALIFORNIA (Sabaupan)
April 17, 1952 | Gibson, C.J. | Self-executing v. non-self-executing treaties
PETITIONER: Sei Fujii
RESPONDENTS: State of California
SUMMARY: A Japanese alien assails the judgment of the lower court. The judgment
declared that certain land purchased by him in 1948 had escheated to the State based
on the Californian Alien Law which prohibits ineligible aliens from owning land.
Plaintiff contends that the land law had been invalidated by the provisions of the UN
Charter because the member nations pledged to promote the observance of human
rights and fundamental freedoms without distinction as to race. He also contends that
the law is violates the due process and equal protection clauses. The relevant issue is
whether the provisions of UN Charter superseded the domestic legislation. The Court
ruled in the negative and distinguished between a self-executing treaty and a non-self-
executing treaty. In determining whether a treaty is self-executing, courts look at the
intent of the signatory parties as manifested by the language of the instrument. If the
instrument is uncertain, and intent cannot be easily determined, the circumstances
surrounding the execution should be considered. A treaty is self-executing (meaning,
no implementing legislation needed) when its provisions prescribe in detail the rules
governing the rights and obligations of individuals. The Court ruled that the
provisions relied on by plaintiff (preamble, Article 55, and 56) are non-self-executing
(see Fact 4a and 4b). Moreover, there are certain provisions in the UN Charter that are
self-executing. Meaning, when the framers of the Charter intended to make
certain provision effective without the aid of implementing legislation, they
employed language which is clear and definite and manifests that intention (See
Fact 6a and 6b). The preamble, Article 55, and 56 are framed as a promise of future
action by the member nations. Hence, the charter provisions relied on by plaintiff
were not intended to supersede existing domestic legislation, and the court cannot
hold that they operate to invalidate the Alien Land Law. However, the Court
invalidate the Alien Land Law for violating the due process and equal protection
clauses of the Constitution.
DOCTRINE: A treaty does not automatically supersede local laws which are
inconsistent with it unless the treaty provisions are self-executing. As said by CJ
Marshall: A treaty is “to be regarded in courts of justice as equivalent to an act of
Legislature, whenever it operates of itself, without the aid of any legislative provision.
But when the terms of the stipulation import a contract – when either parties engages
to perform a particular act, the treaty addresses itself to the political, not the judicial
department and the Legislature must execute the contract, before it can become a rule
for the court.”
FACTS:
1. The plaintiff in this case is an alien Japanese. He is appealing the judgment
declaring that certain land purchased by him in 1948 had escheated to the
State. The judgment was based on California Alien Land Law which
prohibits ineligible alien from owning land.
2. Plaintiff contends that the land law has been invalidated and superseded by
the provisions of the UN Charter pledging the member nations to promote
the observance of human rights and fundamental freedoms without
distinction as to race. Plaintiff specifically relies on the preamble, and
Articles 1,55 and 56 of the charter.
ISSUE/s:
2. Whether the provisions of UN Charter superseded and can be used to
invalidate domestic legislation i.e. California Alien Land Law. NO
(relevant)
3. Whether the Alien Land Law violates due process and equal protection
clauses of the Fourteenth Amendment. YES.
RULING: The judgment is reversed.
RATIO:
Re UN Charter
20. The Court ruled that the charter is a treaty and the federal Constitution
provides that treatties made under the authority of the US are paart of the
supreme law of the land and that the judges in every state are bound
thereby. However, a treaty does not automatically supersede local laws
which are inconsistent with it unless the treaty provisions are self-
executing.
21. In determining whether a treaty is self-executing, courts look at the intent of
the signatory parties as manifested by the language of the instrument. If the
instrument is uncertain, and intent cannot be easily determined, the
circumstances surrounding the execution should be considered.
22. In order for a treaty provision to be operative without the aid of
implementing legislation and to have the force and effect of a statute, it
must appear that the framers of the treaty intended to prescribe a rule
that, standing alone, would be enforceable in the courts.
23. The provisions of the preamble and Article 1 of the UN Charter claimed to
be in conflict with the alien land law are not self-executing. They state
general purposes and objective of the UN Organization and do not purport
to impose legal obligations on the individual member nations or to create
rights in private persons. Moreover, none of the other provisions relied on
by plaintiff is self-executing.
1. Article 55 declares that UN shall promote universal respect for,
and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, and religion.
 2. In Article 56, member nations pledge themselves to take joint and
separate action in cooperation with the Organization for the
achievement of the purposes set forth in Article 55.
24. Treaty provisions are enforced without implementing legislation when they
prescribed in detail the rules governing rights and obligations of individuals
or specifically provided that citizens of one nation shall have the same
rights while in the other country as are enjoyed by that country’s own
citizens. Examples of these are:
1. Clark v. Allen: this involves right of a national of one country to
inherit real property located in another country. The treaty
specifically provided that “such national shall be allowed a term of
3 years in which to sell the property and withdraw the proceeds
free from any discriminatory taxation.
2. Nielsen v. Johnson: here, each of the signatory parties agreed tgat
“no higher or other duties, charges, taxes, of any kind, shall be
levied” by one country on removal of property therefrom by citiens
of the other country “than are or shall be payable in ah State, upon
the sane, when removed by a citizen or subject of such state
respectively.
25. When the framers of the Charter intended to make certain provision
effective without the aid of implementing legislation, they employed
language which is clear and definite and manifests that intention.
Examples are:
1. Article 104: The Organization shall enjoy in the territory of each of
its Members such legal capacity as may be necessary to exercise
for the exercise of its function and the fulfillment of its purpose.
2. Article 105: The Organization shall enjoy in the territory of each of
its Members such privileges and immunities as are necessary for
the fulfillment of its purposes.
26. The provisions in the charter pledging cooperation in promoting observance
of fundamental freedoms lack the mandatory quality and definiteness which
would indicate an intent to create justiciable rights in private persons
immediately upon ratification. Instead, they are framed as a promise of
future action by the member nations.
27. The humane and enlightened objectives of the UN Charter are, of course,
entitled to respectful consideration by the courts and legislatures of every
member nation. The document expresses the universal desire of thinking
men for peace and for equality of rights and opportunities.
28. The Charter represents a moral commitment of foremost importance, and
the Court must not permit the spirit of the State’s pledge to be compromised
is disparaged in either the domestic or foreign affairs.
29. Be that as it may, the charter provisions relied on by plaintiff were not
intended to supersede existing domestic legislation, and the court cannot
hold that they operate to invalidate the Alien Land Law.
Re constitutionality
1. Plaintiff’s arguments:
1. That the statutory classification of aliens on the basis of eligibility
to citizenship is arbitrary for the reason that discrimination against
an ineligible alien bears no reasonable relationship to the
promotion of the safety and welfare of the State.
2. The effect of the statute, as well as its purpose, is to discriminate
against aliens solely on the basis of race and that such
discrimination is arbitrary and unreasonable.
2. The Court ruled that Constitutional principles declared in recent years are
irreconcilable with the reasoning of the earlier cases. The Court concluded
that the statute violates the equal protection clause of the Fourteenth
Amendment.
3. The California act, in the absence of treaty, withholds all interests in real
property from aliens who are ineligible to citizenship under federal
naturalization laws. Moreover, the Nationality Code limits the right of
naturalization to certain designated races or nationalities, excluding
Japanese and a few racial groups comparatively small in numbers.
Accordingly, the statute cannot be sustained unless it can be shown that the
public interest requires limitation of their rights to acquire and enjoy
interests in real property.
4. By its terms, the land law classifies persons on the basis of eligibility to
citizenship, but in fact it classifies on the basis of race or nationality.
Although Japanese are not singled out by name for discriminatory treatment
in the land law, the reference therein to federal standards for naturalization
which exclude Japanese operates automatically to bring about that result.
30. As a general rule, a legislative classification will be sustained if it is
reasonable and has a substantial relation to a legitimate object. The
existence of any reasonably conceivable state of facts sufficient to uphold
the legislation will be presumed. Where, however, as in the present case, the
classification is based on race, it is “immediately suspect” and will be
subjected “to the most rigid scrutiny.”
31. The presumption of validity is greatly narrowed in scope, if not entirely
dispelled, whenever it is shown that legislation actually discriminates
against certain persons because of their nationality.
32. The Court declared that the California Alien Land Law is obviously
designed and administered as an instrument for effectuating racial
discrimination, and the most searching examination discloses no
circumstances justifying classification on that basis.
33. There is nothing to indicate that those alien residents who are racially
ineligible for citizenship possess characteristics which are dangerous to the
legitimate interests of the state, or that they, as a class, might use the land
for purposes injurious to public morals, safety, or welfare.
34. Accordingly, the Court held that the alien land law is invalid for being in
violation of the Fourteenth Amendment.
 BAYAN v. ZAMORA (JOSEF)
October, 10, 2000 | Buena, J. | Treaties
PETITIONERS:
G.R. No. 138570 – Bayan, et al.
G.R. No. 138572 – PHILIPPINE CONSTITUTION ASSOCIATION, INC., et al.
G.R. No. 138587 – Teofisto T. Guingona, et al.
G.R. No. 138680 – Integrated Bar of the Philippines, et al.
G.R. No. 138698 – Jovito Salonga, et al.
RESPONDENTS:
Executive Secretary Ronaldo Zamora, et al.
SAME
Joseph E. Estrada, et al.
SAME
Executive Secretary Ronaldo Zamora (again), et al.
SUMMARY: The United States and the Philippines entered into a Visiting Forces
Agreement which was approved by President Ramos and subsequently ratified by
President Estrada. The required concurrence from the Senate was handed through its
Resolution No. 18. Thus, the VFA was officially entered into force. However, the
constitutionality of the VFA was assailed by the petitioners and argued that the VFA
violates Sec. 25, Article 18 of the 1987 Constitution, which provides that “foreign
military bases, troops, or facilities shall not be allowed in the Philippines except
under a treaty duly concurred in by the Senate…. and recognized as a treaty by the
other contracting State.” The issue is WoN the VFA is constitutional. The court held
that it is constitutional. Section 25, Article XVIII disallows foreign military bases,
troops, or facilities in the country, unless the following conditions are sufficiently
met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by
the Senate and, when so required by congress, ratified by a majority of the votes cast
by the people in a national referendum; and (c) recognized as a treaty by the other
contracting state. The first two requirements were present. The concurrence was
handed down by the Senate through its Resolution No. 18 which was compliant with
regard the manner of voting as provided by the Constitution (16 is the minimum,
which is 2/3 of the ALL the members of Senate, while the actual vote was 23 which
was clearly in compliance). With regard to the last requirement, the Court is of the
firm view that the phrase recognized as a treaty means that the other contracting
party accepts or acknowledges the agreement as a treaty. To require the other
contracting state, the United States of America in this case, to submit the VFA to
the United States Senate for concurrence pursuant to its Constitution, is to
accord strict meaning to the phrase. Moreover, it is inconsequential whether the
United States treats the VFA only as an executive agreement because, under
international law, an executive agreement is as binding as a treaty. To be sure, as
long as the VFA possesses the elements of an agreement under international
law, the said agreement is to be taken equally as a treaty. Furthermore,
International law continues to make no distinction between treaties and
executive agreements: they are equally binding obligations upon nations
DOCTRINE: In international law, there is no difference between treaties and
executive agreements in their binding effect upon states concerned, as long as the
negotiating functionaries have remained within their powers. International law
continues to make no distinction between treaties and executive agreements: they are
equally binding obligations upon nations.
FACTS:
1. In 1947, the Philippines and the United States of America forged a Military
Bases Agreement which formalized, among others, the use of installations
in the Philippine territory by United States military personnel. To further
strengthen their defense and security relationship, the Philippines and the
United States entered into a Mutual Defense Treaty in 1951. Under the
treaty, the parties agreed to respond to any external armed attack on
their territory, armed forces, public vessels, and aircraft.
2. In view of the impending expiration of the RP-US Military Bases
Agreement in 1991, the Philippines and the United States negotiated for a
possible extension of the military bases agreement. Subsequently, the
Philippine Senate rejected the proposed RP-US Treaty of Friendship,
Cooperation and Security which, in effect, would have extended the
presence of US military bases in the Philippines. With the expiration of the
RP-US Military Bases Agreement, the periodic military exercises conducted
between the two countries were held in abeyance. Notwithstanding, the
defense and security relationship between the Philippines and the United
States of America continued pursuant to the Mutual Defense Treaty.
3. In 1997, the United States panel, met with the Philippine panel, to exchange
notes on the complementing strategic interests of the United States and the
Philippines in the Asia-Pacific region. Both sides discussed, among other
things, the possible elements of the Visiting Forces Agreement (VFA for
brevity). Negotiations by both panels on the VFA led to a consolidated draft
text, which in turn resulted to a final series of conferences and negotiations
that culminated in Manila in 1998. Thereafter, then President Fidel V.
Ramos approved the VFA, which was respectively signed by public
respondent Secretary Siazon and Unites States Ambassador Thomas
Hubbard.
4. On October 5, 1998, President Joseph E. Estrada, through respondent
Secretary of Foreign Affairs, ratified the VFA. (Estrada was elected as
president on June 30, 1998)
5. The President officially transmitted to the Senate of the Philippines, the
Instrument of Ratification, the letter of the President and the VFA, for
concurrence pursuant to Section 21, Article VII of the 1987 Constitution.
The Senate, in turn, referred the VFA to its Committee on Foreign
Relations, chaired by Senator Blas F. Ople, and its Committee on National
Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint
 consideration and recommendation. Thereafter, joint public hearings were
held by the two Committees.
6. On May 3, 1999, the Committees submitted Proposed Senate Resolution
No. 443 recommending the concurrence of the Senate to the VFA and the
creation of a Legislative Oversight Committee to oversee its
implementation. Debates then ensued.
7. On May 27, 1999, Proposed Senate Resolution No. 443 was approved by
the Senate, by a two-thirds (2/3) vote of its members. Senate Resolution No.
443 was then re-numbered as Senate Resolution No. 18 (related to ratio
No. 13).
8. On June 1, 1999, the VFA officially entered into force after an Exchange
of Notes between respondent Secretary Siazon and United States
Ambassador Hubbard.
9. Via these consolidated petitions for certiorari and prohibition, petitioners -
as legislators, non-governmental organizations, citizens and taxpayers -
assail the constitutionality of the VFA and impute to herein respondents
grave abuse of discretion in ratifying the agreement.
ISSUE/s:
1. WoN the VFA is constitutional – Yes, since the VFA adhered to all the
consitutional requirements with regard to the voting or ratification of
treaties
RULING: WHEREFORE, in light of the foregoing disquisitions, the instant
petitions are hereby DISMISSED.
RATIO:
APPLICABLE CONSTITUTIONAL PROVISION (See ratio 10 for the definite
answer of the SC)
1. Petitioners argue that Section 25, Article XVIII3 is applicable considering
that the VFA has for its subject the presence of foreign military troops in
the Philippines. Respondents, on the contrary, maintain that Section 21,
Article VII4 should apply inasmuch as the VFA is not a basing arrangement
but an agreement which involves merely the temporary visits of United
States personnel engaged in joint military exercises.
2. Section 21, Article VII deals with treatise or international agreements in
general, in which case, the concurrence of at least two-thirds (2/3) of all the
Members of the Senate is required to make the subject treaty, or
3 Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and
the United States of America concerning military bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held
for that purpose, and recognized as a treaty by the other contracting State.
4 Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate.
international agreement, valid and binding on the part of the
Philippines. This provision lays down the general rule on treatise or
international agreements and applies to any form of treaty with a wide
variety of subject matter, such as, but not limited to, extradition or tax
treatise or those economic in nature. All treaties or international agreements
entered into by the Philippines, regardless of subject matter, coverage, or
particular designation or appellation, requires the concurrence of the Senate
to be valid and effective.
3. In contrast, Section 25, Article XVIII is a special provision that applies to
treaties which involve the presence of foreign military bases, troops or
facilities in the Philippines. Under this provision, the concurrence of the
Senate is only one of the requisites to render compliance with the
constitutional requirements and to consider the agreement binding on the
Philippines. Section 25, Article XVIII further requires that foreign
military bases, troops, or facilities may be allowed in the Philippines only
by virtue of a treaty duly concurred in by the Senate, ratified by a majority
of the votes cast in a national referendum held for that purpose if so
required by Congress, and recognized as such by the other contracting state.
4. It is our considered view that both constitutional provisions, far from
contradicting each other, actually share some common ground. These
constitutional provisions both embody phrases in the negative and thus, are
deemed prohibitory in mandate and character. In particular, Section 21
opens with the clause No treaty x x x, and Section 25 contains the phrase
shall not be allowed. Additionally, in both instances, the concurrence of
the Senate is indispensable to render the treaty or international
agreement valid and effective.
5. To our mind, the fact that the President referred the VFA to the Senate
under Section 21, Article VII, and that the Senate extended its
concurrence under the same provision, is immaterial. For in either case,
whether under Section 21, Article VII or Section 25, Article XVIII, the
fundamental law is crystalline that the concurrence of the Senate is
mandatory to comply with the strict constitutional requirements.
6. On the whole, the VFA is an agreement which defines the treatment of
United States troops and personnel visiting the Philippines. It provides
for the guidelines to govern such visits of military personnel, and
further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of vessel
and aircraft, importation and exportation of equipment, materials and
supplies.
7. Undoubtedly, Section 25, Article XVIII, which specifically deals with
treaties involving foreign military bases, troops, or facilities, should
apply in the instant case. To a certain extent and in a limited sense,
however, the provisions of section 21, Article VII will find applicability
with regard to the issue and for the sole purpose of determining the
number of votes required to obtain the valid concurrence of the Senate,
as will be further discussed hereunder.
 a. Rules on Construction: It is a finely-imbedded principle in
statutory construction that a special provision (Article 28) or law
prevails over a general one (Article 7).
8. Moreover, it is wrong to argue that Section 25, Article XVIII is inapplicable
to mere transient agreements for the reason that there is no permanent
placing of structure for the establishment of a military base.
a. On this score, the Constitution makes no distinction between
transient and permanent. Certainly, we find nothing in Section
25, Article XVIII that requires foreign troops or facilities to be
stationed or placed permanently in the Philippines.
WHETHER OR NOT THE REQUIREMENT OF SECTION 25 WERE
COMPLIED WITH WHEN THE SENATE GAVE ITS CONCURRENCE TO
THE VFA (Yes, 16 is the minimum number and the actual number of Senators who
voted was 23)
9. Section 25, Article XVIII disallows foreign military bases, troops, or
facilities in the country, unless the following conditions are sufficiently
met, viz: (a) it must be under a treaty; (b) the treaty must be duly
concurred in by the Senate and, when so required by congress, ratified by
a majority of the votes cast by the people in a national referendum; and
(c) recognized as a treaty by the other contracting state.
10. There is no dispute as to the presence of the first two requisites in the case
of the VFA. The concurrence handed by the Senate through Resolution No.
18 (related to ratio No.8) is in accordance with the provisions of the
Constitution
11. As to the matter of voting, Section 21, Article VII particularly requires
that a treaty or international agreement, to be valid and effective, must
be concurred in by at least two-thirds of all the members of the
Senate. On the other hand, Section 25, Article XVIII simply provides that
the treaty be duly concurred in by the Senate.
a. Applying the foregoing constitutional provisions, a two-thirds vote
of all the members of the Senate is clearly required so that the
concurrence contemplated by law may be validly obtained and
deemed present. While it is true that Section 25, Article XVIII
requires, among other things, that the treaty-the VFA, in the instant
case-be duly concurred in by the Senate, it is very true however
that said provision must be related and viewed in light of the
clear mandate embodied in Section 21, Article VII, which in
more specific terms, requires that the concurrence of a treaty, or
international agreement, be made by a two-thirds vote of all the
members of the Senate. Indeed, Section 25, Article XVIII must
not be treated in isolation to section 21, Article, VII. (basically in
terms of voting, the manner of voting under Art. 7 must be used,
which is the 2/3 vote of ALL the members of the Senate because in
terms of VOTING, it is Art. 7 that provides for a more specific
manner of voting)
12. Under these circumstances, the charter provides that the Senate shall be
composed of twenty-four (24) Senators. Two-thirds (2/3) of this figure, or
not less than sixteen (16) members, favorably acting on the proposal is an
unquestionable compliance with the requisite number of votes mentioned in
Section 21 of Article VII. The fact that there were actually twenty-three
(23) incumbent Senators at the time the voting was made, will not alter in
any significant way the circumstance that more than two-thirds of the
members of the Senate concurred with the proposed VFA, even if the two-
thirds vote requirement is based on this figure of actual members (23). In
this regard, the fundamental law is clear that two-thirds of the 24 Senators,
or at least 16 favorable votes, suffice so as to render compliance with
the strict constitutional mandate of giving concurrence to the subject
treaty.
WHETHER OR NOT THE VFA SHOULD BE RECOGNIZED AS A TREATY
BY THE UNITED STATES OF AMERICA (I THINK THIS IS THE MOST
RELEVANT PART)
13. Petitioners content that the phrase recognized as a treaty, embodied in
section 25, Article XVIII, means that the VFA should have the advice and
consent of the United States Senate pursuant to its own constitutional
process, and that it should not be considered merely an executive agreement
by the United States.
14. In opposition, respondents argue that the letter of United States Ambassador
Hubbard stating that the VFA is binding on the United States Government
is conclusive, on the point that the VFA is recognized as a treaty by the
United States of America. According to respondents, the VFA, to be
binding, must only be accepted as a treaty by the United States.
15. This Court is of the firm view that the phrase recognized as a treaty means
that the other contracting party accepts or acknowledges the agreement as
a treaty. To require the other contracting state, the United States of
America in this case, to submit the VFA to the United States Senate for
concurrence pursuant to its Constitution, is to accord strict meaning to
the phrase.
16. Moreover, it is inconsequential whether the United States treats the
VFA only as an executive agreement because, under international law,
an executive agreement is as binding as a treaty. To be sure, as long as
the VFA possesses the elements of an agreement under international
law, the said agreement is to be taken equally as a treaty.
17. A treaty, as defined by the Vienna Convention on the Law of Treaties, is an
international instrument concluded between States in written form and
governed by international law, whether embodied in a single instrument or
in two or more related instruments, and whatever its particular designation.
18. There are many other terms used for a treaty or international agreement,
some of which are: act, protocol, agreement, compromis d arbitrage,
concordat, convention, declaration, exchange of notes, pact, statute, charter
and modus vivendi. All writers, from Hugo Grotius onward, have pointed
 out that the names or titles of international agreements included under the
general term treaty have little or no legal significance. Certain terms are
useful, but they furnish little more than mere description.
19. Article 2(2) of the Vienna Convention provides that the provisions of
paragraph 1 regarding the use of terms in the present Convention are
without prejudice to the use of those terms, or to the meanings which
may be given to them in the internal law of the State.
20. Thus, in international law, there is no difference between treaties and
executive agreements in their binding effect upon states concerned, as
long as the negotiating functionaries have remained within their
powers. International law continues to make no distinction between
treaties and executive agreements: they are equally binding obligations
upon nations.
21. In our jurisdiction, we have recognized the binding effect of executive
agreements even without the concurrence of the Senate or
Congress. In Commissioner of Customs vs. Eastern Sea Trading,we had
occasion to pronounce:
x x x the right of the Executive to enter into binding
agreements without the necessity of subsequent congressional approval has
been confirmed by long usage. From the earliest days of our history we
have entered into executive agreements covering such subjects as
commercial and consular relations, most-favored-nation rights, patent
rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has never
been seriously questioned by our courts.
22. The records reveal that the United States Government, through Ambassador
Thomas C. Hubbard, has stated that the United States government has fully
committed to living up to the terms of the VFA. For as long as the united
States of America accepts or acknowledges the VFA as a treaty, and
binds itself further to comply with its obligations under the treaty,
there is indeed marked compliance with the mandate of the
Constitution.
23. Worth stressing too, is that the ratification, by the President, of the VFA and
the concurrence of the Senate should be taken as a clear an unequivocal
expression of our nations consent to be bound by said treaty, with the
concomitant duty to uphold the obligations and responsibilities embodied
thereunder.
24. Ratification is generally held to be an executive act, undertaken by the head
of the state or of the government, as the case may be, through which the
formal acceptance of the treaty is proclaimed. A State may provide in its
domestic legislation the process of ratification of a treaty. The consent of
the State to be bound by a treaty is expressed by ratification when: (a) the
treaty provides for such ratification, (b) it is otherwise established that the
negotiating States agreed that ratification should be required, (c) the
representative of the State has signed the treaty subject to ratification, or (d)
the intention of the State to sign the treaty subject to ratification appears
from the full powers of its representative, or was expressed during the
negotiation.
25. In our jurisdiction, the power to ratify is vested in the President and
not, as commonly believed, in the legislature. The role of the Senate is
limited only to giving or withholding its consent, or concurrence, to the
ratification.
26. With the ratification of the VFA, which is equivalent to final
acceptance, and with the exchange of notes between the Philippines and the
United States of America, it now becomes obligatory and incumbent on
our part, under the principles of international law, to be bound by the
terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution, declares that the Philippines adopts the generally accepted
principles of international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation and amity with
all nations.
27. As a member of the family of nations, the Philippines agrees to be
bound by generally accepted rules for the conduct of its international
relations. While the international obligation devolves upon the state and not
upon any particular branch, institution, or individual member of its
government, the Philippines is nonetheless responsible for violations
committed by any branch or subdivision of its government or any official
thereof. As an integral part of the community of nations, we are responsible
to assure that our government, Constitution and laws will carry out our
international obligation. Hence, we cannot readily plead the Constitution as
a convenient excuse for non-compliance with our obligations, duties and
responsibilities under international law.
28. Beyond this, Article 13 of the Declaration of Rights and Duties of States
adopted by the International Law Commission in 1949 provides: Every
State has the duty to carry out in good faith its obligations arising from
treaties and other sources of international law, and it may not invoke
provisions in its constitution or its laws as an excuse for failure to
perform this duty.
29. Equally important is Article 26 of the convention which provides that Every
treaty in force is binding upon the parties to it and must be performed by
them in good faith. This is known as the principle of pacta sunt
servanda which preserves the sanctity of treaties and have been one of the
most fundamental principles of positive international law, supported by the
jurisprudence of international tribunals.
 NICOLAS v. ROMULO (Nicolin)
February 11, 2009| Azcuna, J. | Custom – how developed
GR 175888
PETITIONER: Suzeette Nicolas y Sombilon
RESPONDENTS: Alberto Romulo (Secretary of Affairs); Raul Gonzalez (Sec of
Justice); Eduardo Ermita (Executive Secretary); Ronaldo Puno (Secretary of DILG);
Sergio Apostol (legal counsel) and L/CPL Daniel Smith
GR 176051
PETITIONERS: Jovito Salonga, Wigberto Taada et al
RESPONDENTS: Daniel Smith, Sec. Raul Gonzalez, Sergio Apostol, Sec. Ronaldo
Puno, Sec. Alberto Romula
GR 176222
PETITIONERS: Bagong Alyansang Makabayan (BAYAN) et al
RESPONDENTS: Pres. Gloria Macapagal Arroyo (as Defnse secretary)et al
SUMMARY: Lance Corporal (L/CPL) Daniel Smith (Smith), along with several
others, is a member of the US Armed Forces charged with the crime of rape
committed against a Filipina, Suzette Nicolas (Suzette). Pursuant to the Visiting
Forces Agreement (VFA), US was granted custody of Smith. He was consequently
found guity and was detained at Makati City Jail. However, Smith was transferred to
a detention facility under the custody of the U.S. gov’t pursuant to the Romulo-
Keneddy Agreement. Petitions, thereafter, contest the transfer by alleging that the
Philippines should have custody over Smith because the VFA is void and
unconstitutional. The issue is whether or not the VFA is void and the SC upheld the
constitutionality of the VFA. Laws of one state do not extend or apply except to the
extent agreed upon to subjects of another state due to the recognition of
extraterritorial immunity given to such bodies like visiting foreign armed forces. It
was simply required that the treaty be recognized as a treaty by the other contracting
State. With that, it becomes for both parties a binding international obligation and the
enforcement of that obligation is left to the normal recourse and processes under
international law. In this case, Court finds that there is a different treatment in the
issue of detention as against custody. Hence, after conviction, the rule that governs is
Section 10 of the VFA. Secretary of Foreign Affairs is hereby ordered to forthwith
negotiate with the United States representatives for the appropriate agreement
on detention facilities under Philippine authorities as provided in Art. V, Sec. 10
of the VFA
DOCTRINE: It was not the intention of the framers of the 1987 Constitution, in
adopting Article XVIII, Sec. 25, to require the other contracting State to convert their
system to achieve alignment and parity with ours. It was simply required that the
treaty be recognized as a treaty by the other contracting State. With that, it
becomes for both parties a binding international obligation and the enforcement of
that obligation is left to the normal recourse and processes under international law.
*sidenote: Customary law can develop to bind only two or a few states, but the state
claiming it must prove that it is also binding on the other party/parties, as was proved
by Portugal in the Right of Passage over Indian Territory (ICJ).
FACTS:
17. Lance Corporal (L/CPL) Daniel Smith (Smith), along with several others, is
a member of the US Armed Forces charged with the crime of rape committed
against a Filipina, Suzette Nicolas (Suzette):
1. “On Nove 1 ’05, inside the Subic Bay Freeport Zone, Olongapo City, the
accused are members of the United States Marine Corps, except Timoteo L.
Soriano, Jr., with abuse of superior strength and taking advantage of the
intoxication of the victim, sexually abuse and have sexual intercourse with
Suzette S. Nicolas, a 22-year old unmarried woman inside a Starex Van
with Plate No. WKF-162, owned by Starways Travel and Tours, driven by
accused Timoteo L. Soriano, Jr., against the will and consent of the said
Suzette”
2. Pursuant to the Visiting Forces Agreement (VFA), US was granted custody
of Smith. The case was transferred from RTC of Zambales to Makati and
the US dutifully brought Smith to the trial court when his presence is
required.
18. RTC ruling: found Smith guilty, other accused are acquitted; Smith was detained
at the Makati City Jail
1. BUT, under the “Romulo-Kenney Agreement,” Smith was transferred to a
facility for detention under the control of the US govt.
19. This matter was brought before the CA but was dismissed for having become
moot.
1. Hence, the present petition for certiorari before the SC.
20. Oral argument: Under the petition, they contend that the PH should have
custody of Smith because the VFA is void and unconstitutional.
ISSUE/s:
4. WoN VFA is void – NO, VFA is constitutional
5. WoN the presence of US Armed Forces in PH territory pursuant to the
VFA is allowed under a treaty dully concurred in by the Senate and
recognized as a treaty by the other contracting State (U.S.) - YES
RULING: WHEREFORE, the petitions are PARTLY GRANTED, and the Court of
Appeals Decision in CA-G.R. SP No. 97212 dated January 2, 2007 is MODIFIED.
The Visiting Forces Agreement (VFA) between the Republic of the Philippines and
the United States, entered into on February 10, 1998, is UPHELD as constitutional,
but the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED
not in accordance with the VFA, and respondent Secretary of Foreign Affairs is
hereby ordered to forthwith negotiate with the United States representatives for the
appropriate agreement on detention facilities under Philippine authorities as
provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be extraterritorial immunity given to such bodies like visiting foreign
maintained until further orders by this Court. armed forces.
RATIO: b. In this case, Court finds that there is a different treatment in the
VFA is constitutional issue of detention as against custody. Hence, after conviction, the
1. The Court has already resolved the constitutionality of the VFA and bars future rule that governs is Section 10 of the VFA6:
actions by res judicata against BAYAN (second petition) and stare decisis i. Detention shall be carried out in facilities agreed
(against all 3 petitions) upon by both parties
a. Sec. 25, Article XVIII5 exists due to PH experience with US military bases ii. Detentiona shal be by Philippine authorities.
in the country: c. HENCE, the Romulo-Kenney Agreement (re: agreements on
i) Under the Philippine Bill of 1902, US agreed to ced to the PH all
the detention of accused in the US Embassy) is NOT in
territory acquired from Spain under the Treaty of Paris, plus a few
islands, EXCEPT acertain naval ports and/or military bases (under US accord with the VFA because such detention is not by PH
jurisdiction) authorities.
ii) Which means the Clark and Subic bases and others covered by the RP- 2. Note: In Medellin v Texas: Treaties entered into by the US are
US Military Bases Agreement. But, with the expiration of the not automatically part of their domestic law unless these treaties
agreement, the bases were finally ceded to the PH. are self-executing or there is an implementing legislation to make
2. The provision is designed to ensure that any agreement allowing the presence of them enforceable.
foreign military bases, troops or facilities in Philippine territory shall be equally a. Thereafter, SC deliberated on the VFA and found that
binding on the Philippines and the foreign sovereign State involved i. The VFA is a self-executing Agreement because the
3. No violation of equal protection clause - The EPC was not violated because parties intend its provisions to be enforceable
there is substantial basis for a different treatment of a member of a foreign
(because the intention is to carry out the obligations
military armed forces allowed to enter our territory and all other accused.
under the RP-US Mutual Defense Treaty.
Presence of US Armed Forces allowed in PH territory ii. VFA is covered by implementing legislation, Case-
1. First reason - In Bayan v Zamora: VFA was duly concurred in by the PH Zablocki Act, USC Sec. 112(b)
senate and recognized as a treaty by the US as certified by duly authorized iii. RP-US Mutual Defense Treaty was advised and
US representative. consented to by the US Senate
a. The fact that the VFA was not submitted for advice and consent of 3. The framers of the Constitution recognize that the application of int’l
US Senate does not defract from its status as a binding law in domestic courts varies country to country
international agreement or treaty recognized by the US. For this is a. It was not the intention of the framers of the 1987
a matter of internal US law. Constitution, in adopting Article XVIII, Sec. 25, to require
2. Second reason – relation between VFA and the RP-US Mutual Defense
the other contracting State to convert their system to achieve
Treaty (agreement signed and ratified with concurrence of both PH and US
Senate) alignment and parity with ours.
Romulo-Kennedy Agreement and VFA b. It was simply required that the treaty be recognized as a
1. The rule in international law is that foreigned armed forces allowed to treaty by the other contracting State. With that, it
enter one’s territory is immune from local jurisdiction, except to the becomes for both parties a binding international obligation
extent agreen upon. and the enforcement of that obligation is left to the normal
a. Laws of one state do not extend or apply except to the extent recourse and processes under international law.
agreed upon to subjects of another state due to the recognition of

5 Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United States
of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in
6 Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall be
carried out in facilities agreed on by appropriate Philippines and United States authorities. United States
the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so
requires, ratified by a majority of the votes cast by the people in a national referendum held for that personnel serving sentences in the Philippines shall have the right to visits and material assistance.
purpose, and recognized as a treaty by the other contracting State.
 Lim v. Executive Secretary (Lindon)
April 11, 2002 | de Leon, Jr., J. | Visiting Forces Agreement
PETITIONER: Arturo Lim and Paulino Ersando
RESPONDENTS: Executive Secretary, and Secretary of National Defense
SUMMARY: Pursuant to the Visiting Forces Agreement (VFA) signed in 1999,
personnel from the armed forces of the United States of America started arriving in
Mindanao to take partin "Balikatan 02-1” on January 2002. The Balikatan 02-1
exercises involves the simulation of joint military maneuvers pursuant to the Mutual
Defense Treaty, a bilateral defense agreement entered into by the Philippines and the
United States in 1951. The exercise is rooted from the international anti-terrorism
campaign declared by President George W. Bush in reaction to the 3 commercial
aircrafts hijacking that smashed into twin towers of the World Trade Center in New
York City and the Pentagon building in Washington, D.C. allegedly by the al-Qaeda
headed by the Osama bin Laden that occurred on September 11, 2001. Arthur D.
Lim and Paulino P. Ersando as citizens, lawyers and taxpayers filed a petition for
certiorari and prohibition attacking the constitutionality of the joint exercise. The
issue is whether the VFA allows war to be started by the US Troops in the
Philippines against the Abu Sayyaf. The SC held in the negative, using cardinal
interpretation rules provided by the Vienna Convention. The VFA was not a
camouflage for war.
DOCTRINE: from the perspective of public international law, a treaty is favored
over municipal law pursuant to the principle of pacta sunt servanda. Hence, "[e]very
treaty in force is binding upon the parties to it and must be performed by them in
good faith." Further, a party to a treaty is not allowed to "invoke the provisions of its
internal law as justification for its failure to perform a treaty."
FACTS:
21. Beginning January of this year 2002, personnel from the armed forces of the
United States of America started arriving in Mindanao to take part, in
conjunction with the Philippine military, in "Balikatan 02-1."
22. These so-called "Balikatan" exercises are the largest combined training
operations involving Filipino and American troops. In theory, they are a
simulation of joint military maneuvers pursuant to the Mutual Defense
Treaty,1 a bilateral defense agreement entered into by the Philippines and
the United States in 1951.
23. Prior to the year 2002, the last "Balikatan" was held in 1995. This was due
to the paucity of any formal agreement relative to the treatment of United
States personnel visiting the Philippines. The lack of consensus was
eventually cured when the two nations concluded the Visiting Forces
Agreement (V FA) in 1999.
24. The entry of American troops into Philippine soil is proximately rooted in
the international anti-terrorism campaign declared by President George W.
Bush in reaction to the tragic events that occurred on September 11, 2001.
25. Petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for
certiorari and prohibition, attacking the constitutionality of the joint
exercise.
ISSUE/s:
6. Whether "Balikatan 02-1" is covered by the Visiting Forces Agreement –
Yes, using the rules of construction provided by the Vienna Convention.
7. May American troops actually engage in combat in Philippine territory?
Qualified Yes, only when there are threats present.
RULING: WHEREFORE, the petition and the petition-in-intervention are hereby
DISMISSED without prejudice to the filing of a new petition sufficient in form and
substance in the proper Regional Trial Court.
RATIO:
As regards the first issue:
35. The holding of "Balikatan 02-1" must be studied in the framework of the
treaty antecedents to which the Philippines bound itself. The first of these is
the Mutual Defense Treaty (MDT, for brevity). The MDT has been
described as the "core" of the defense relationship between the Philippines
and its traditional ally, the United States. Its aim is to enhance the strategic
and technological capabilities of our armed forces through joint training
with its American counterparts; the "Balikatan" is the largest such training
exercise directly supporting the MDT's objectives. It is this treaty to which
the V FA adverts and the obligations thereunder which it seeks to reaffirm.
36. The lapse of the US-Philippine Bases Agreement in 1992 and the decision
not to renew it created a vacuum in US-Philippine defense relations, that is,
until it was replaced by the Visiting Forces Agreement. It should be recalled
that on October 10, 2000, by a vote of eleven to three, this Court upheld the
validity of the VFA.7 The V FA provides the "regulatory mechanism" by
which "United States military and civilian personnel [may visit] temporarily
in the Philippines in connection with activities approved by the Philippine
Government." It contains provisions relative to entry and departure of
American personnel, driving and vehicle registration, criminal jurisdiction,
claims, importation and exportation, movement of vessels and aircraft, as
well as the duration of the agreement and its termination. It is the VFA
which gives continued relevance to the MDT despite the passage of years.
Its primary goal is to facilitate the promotion of optimal cooperation
between American and Philippine military forces in the event of an attack
by a common foe.
 37. According to the Vienna Convention, the cardinal rule of interpretation
must involve an examination of the text, which is presumed to verbalize
the parties' intentions. The Convention likewise dictates what may be
used as aids to deduce the meaning of terms, which it refers to as the
context of the treaty, as well as other elements may be taken into
account alongside the aforesaid context. As explained by a writer on the
Convention ,
the Commission's proposals (which were adopted virtually without
change by the conference and are now reflected in Articles 31 and
32 of the Convention) were clearly based on the view that the text
of a treaty must be presumed to be the authentic expression of the
intentions of the parties; the Commission accordingly came down
firmly in favour of the view that 'the starting point of interpretation
is the elucidation of the meaning of the text, not an investigation
ab initio into the intentions of the parties'. This is not to say that
the travauxpreparatoires of a treaty , or the circumstances of its
conclusion, are relegated to a subordinate, and wholly ineffective,
role. As Professor Briggs points out, no rigid temporal prohibition
on resort to travaux preparatoires of a treaty was intended by the
use of the phrase 'supplementary means of interpretation' in what is
now Article 32 of the Vienna Convention. The distinction between
the general rule of interpretation and the supplementary means of
interpretation is intended rather to ensure that the supplementary
means do not constitute an alternative, autonomous method of
interpretation divorced from the general rule.
As regards the second issue:
38. The Terms of Reference are explicit enough. Paragraph 8 of section I
stipulates that US exercise participants may not engage in combat "except in
self-defense." We wryly note that this sentiment is admirable in the abstract
but difficult in implementation. The target of "Balikatan 02-1 I" the Abu
Sayyaf, cannot reasonably be expected to sit idly while the battle is brought
to their very doorstep. They cannot be expected to pick and choose their
targets for they will not have the luxury of doing so. We state this point if
only to signify our awareness that the parties straddle a fine line, observing
the honored legal maxim "Nemo potest facere per alium quod non potest
facere per directum."11 The indirect violation is actually petitioners' worry,
that in reality, "Balikatan 02-1 " is actually a war principally conducted by
the United States government, and that the provision on self-defense serves
only as camouflage to conceal the true nature of the exercise. A clear
pronouncement on this matter thereby becomes crucial.
39. Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in
all other treaties and international agreements to which the Philippines is a
party, must be read in the context of the 1987 Constitution. In particular, the
Mutual Defense Treaty was concluded way before the present Charter,
though it nevertheless remains in effect as a valid source of international
obligation. The present Constitution contains key provisions useful in
determining the extent to which foreign military troops are allowed in
Philippine territory. Thus, in the Declaration of Principles and State
Policies:
SEC. 2. The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of the
law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.
SEC. 7. The State shall pursue an independent foreign policy. In its
relations with other states the paramount consideration shall be national
sovereignty, territorial integrity, national interest, and the right to self-
determination.
SEC. 8. The Philippines, consistent with the national interest, adopts and
pursues a policy of freedom from nuclear weapons in the country.
40. The aforequoted provisions betray a marked antipathy towards foreign
military presence in the country, or of foreign influence in general. Hence,
foreign troops are allowed entry into the Philippines only by way of direct
exception. Conflict arises then between the fundamental law and our
obligations arising from international agreements.
41. From the perspective of public international law, a treaty is favored
over municipal law pursuant to the principle of pacta sunt servanda.
Hence, "[e]very treaty in force is binding upon the parties to it and must be
performed by them in good faith." Further, a party to a treaty is not
allowed to "invoke the provisions of its internal law as justification for
its failure to perform a treaty."
42. N.B. The Supreme Court did not rule upon whether the US Troops are
actually engaging war in the Philippines, for they held that it was not the
proper subject of a special civil action for certiorari.
 PIMENTEL v. EXECUTIVE SECRETARY (PATRICK)
July 6, 2005 | Puno, J. | Treaty-making process; Legislative concurrence
PETITIONER: Senator Aquilino Pimentel, et al.
RESPONDENTS: Executive Secretary
SUMMARY: The Petitioners, each claiming to have the requisite locus standi to file
this petition for the issuance of a writ of mandamus, all seek to compel the President
to transmit the Rome Statute, which establishes the International Criminal Court, to
the Senate for ratification, in compliance with the State’s alleged ministerial duty to
ratify the Rome Statute under treaty law and customary international law. The Rome
Statute was signed by the Philippines on Dec. 28, 2000. The issues are: (1) Whether
the Petitioners have locus standi, and (2) whether the transmittal to the Senate for
concurrence is a ministerial duty of the President, thus compellable by mandamus.
The Court held that only Sentaro Pimentel had standing to sue on the ground that, to
the extent the powers of Congress are impaired, so is the power of each member
thereof, since his office confers a right to participate in the exercise of the powers of
that institution.
Further, the Court held that the transmittal of documents is discretionary on the part
of the President, he being the sole organ and authority in external relations and is the
contry’s sole representative with foreign nations. The steps in treaty-making process
are: negotitation, signing, ratification, and exchange of instruments. The signing does
not signify the final consent of the State to the treaty. After the treaty is signed by the
states representative, the President, being accountable to the people, is burdened with
the responsibility and duty to carefully study the contents of the treaty and ensure
that they are not inimical to the interest of the state and its people. Thus, the
President has discretion even after signing of the treaty on the matter of ratification.
There is no legal obligation to ratify a treaty, but refusal must be based on substantial
grounds. The role of the Senate is limited only to concurrence to the ratification.
Refusal to ratify is within the competence of the President alone.
DOCTRINE: The transmittal of a signed treaty to the Senate by the President is
discretionary. The President is the sole organ of international relations.
FACTS:
26. The Rome Statute establishing the International Criminal Court, and giving
it jurisdiction over genocide, crimes against humanity, war crimes, and the
crime of aggression, was opened for signature on 17 July, 1998. The
Philippines signed the same on 28 December 2000.
27. Petitioners are suing as concerned human rights advocates and as taxpayers
Petitioners theorize that the ratification of a treaty is a function of the
Senate, and are thus compelling the President to transmit thereto the Rome
Statute for ratification through a petition for mandamus.
ISSUE/s:
8. Whether the petitioners have locus standi — ONLY SEN. PIMENTEL
9. Whether the Executive Secretary and the Department of Foreign Affairs
have a ministerial duty to transmit to the Senate a copy of the Rome Statute
even without the signature of the President — NO.
RULING: Petition is DENIED.
RATIO:
43. The Petitioner in every case must be an aggrieved party in the sense that he
possesses a clear legal right to be enforced and a direct interest in the duty or act to
be performed. Legislators have the standing to maintain inviolate the prerogatives,
powers, and privileges vested by the Constitution in their office and are allowed to
sur to question the validity of any official action which they claim infringes their
prerogatives as legislators.
44. The President as head of state is vested with the authprity to deal with
foreign states and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact the business
of foreign relations.
45. Negotiation may be undertaken directly by the head of state, or his
authorized representative. Opening for signature is intended as a means of
authenticating the instrument and for the purpose of symbolizing the good
faith of the parties. Ratification is the formal act by which a state confirms
and accepts the provisions of a treaty concluded by its representatives.
Exhange of the instruments of ratification usually signifies the effectivity of
the treaty. Treaty à Signed by Philippine representative à DFA to prepare
ratification papers à President for ratification à DFA shall transmit to
Senate for concurrence à DFA for execution and compliance.
46. The role of the Senate is limited only to giving or withholding its consent,
or concurrence, to the ratification. It is still the President who must ratify
the treaty. It is subject to his discretion, and thus not compellable by
mandums proceedings.
 RENATO v. ROSARIO (Buenaventura)
Oct 13, 2005| Tinga J. | Treaties (?)
PETITIONER: Spouses Renato Constantino, Jr. And Lourdes Constantino And
Their Minor Children Renato Redentor, Anna Marika Lissa, Nina Elissa, And,Anna
Karmina, Freedom From Debt Coalition, And Filomeno Sta. Ana Iii
RESPONDENTS: Hon. Jose B. Cuisia, (Governor of the Central Bank)
Hon. Ramon Del Rosario, (Secretary of Finance), Hon. Emmanuel V. Pelaez,
(Philippine Debt Negotiating Chairman) and the National Treasurer
SUMMARY: The Aquino regime came up w/ a scheme to reduce the country’s
external debt. Their solution was to incur foreign debts. Three restructuring programs
were sought to initiate the program for foreign debts – they are basically buyback
programs & bond-conversion programs). Renato claims that the buyback and bond-
conversion schemes are onerous and they do not constitute the loan “contract” or
“guarantee” contemplated in Sec. 20, Art. 7 of the Constitution and the power to
incur foreign debts is expressly reserved by the Constitution in the person of the
President alone. The issue is WoN the president has a borrowing power and if she
can delegate it to Rosario. SC held that there is no question that the president has
borrowing powers and that the president may contract or guarantee foreign loans in
behalf of this country. Also the president can delegate this power to her direct
subordinates. SC also held that the Secretary of Finance has the expertise to execute
the debt-relief contracts and executing a strategy for managing the government’s
debt and that R.A. No. 245. Section 1 empowers the Secretary of Finance with the
approval of the President to borrow from time to time on the credit of the Republic
of the Philippines such sum or sums as in his judgment may be necessary. SC also
noted that there are certain acts which, by their very nature, must be done by the
President alone like the power to suspend the writ of habeas corpus and proclaim
martial law and the exercise of prerogative of pardon (mercy).
DOCTRINE: The heads of the executive departments occupy political positions and
hold office in an advisory capacity, "are subject to the direction of the President."
Without minimizing the importance of the heads of the various departments, their
personality is in reality but the projection of that of the President. "each head of a
department is, and must be, the President's alter ego in the matters of that department
where the President is required by law to exercise authority
FACTS:
1. On 17 July 1992 a Petition for Certiorari, Prohibition and Mandamus was
filed assailing said contracts which were entered into pursuant to the
Philippine Comprehensive Financing Program for 1992 (Financing Program
or Program). It seeks to enjoin Rosario et al from executing additional debt-
relief contracts pursuant thereto. It also urges the Court to issue an order
compelling the Secretary of Justice to institute criminal and administrative
cases against Rosario et al for acts which circumvent or negate the
provisions Art. XII of the Constitution. Rosario et al were members of the
Philippine panel tasked to negotiate with the country’s foreign creditors
pursuant to the Financing Program
2. The Aquino government entered into three restructuring agreements with
representatives of foreign creditor governments during the period of 1986 to
1991.
3. On 28 February 1992, the Philippine Debt Negotiating Team, chaired by
respondent Pelaez, negotiated an agreement with the country’s Bank
Advisory Committee, representing all foreign commercial bank creditors,
on the Financing Program which Rosario et al characterized as a multi-
option financing package.
4. The Program was scheduled to be executed on 24 July 1992 by Rosario et al
in behalf of the Republic.
5. Renato et al alleged that even prior to the execution of the Program Rosario
et al had already implemented its buyback component when on 15 May
1992, the Philippines bought back P1.26 billion of external debts pursuant
to the Program.
6. The petition sought to enjoin the ratification of the Program, but the Court
did not issue any injunctive relief.
7. Renato et al characterize the Financing Program as a package offered to the
country’s foreign creditors consisting of two debt-relief options. The first
option was a cash buyback of portions of the Philippine foreign debt at a
discount. The second option allowed creditors to convert existing Philippine
debt instruments into any of three kinds of bonds/securities: (1) new money
bonds with a five-year grace period and 17 years final maturity, the
purchase of which would allow the creditors to convert their eligible debt
papers into bearer bonds with the same terms; (2) interest-reduction bonds
with a maturity of 25 years; and (3) principal-collateralized interest-
reduction bonds with a maturity of 25 years.
8. On the other hand, according to Rosario et al the Financing Program would
cover about U.S. $5.3 billion of foreign commercial debts and it was
expected to deal comprehensively with the commercial bank debt problem
of the country and pave the way for the countrys access to capital markets.
They add that the Program carried three basic options from which foreign
bank lenders could choose, namely: to lend money, to exchange existing
restructured Philippine debts with an interest reduction bond; or to
exchange the same Philippine debts with a principal collateralized interest
reduction bond.
ISSUES:
1. WoN to the Financing Program is beyond the powers granted to the
President under Section 20,Article VII of the Constitution to contract or
guarantee foreign loans in behalf of the Republic – NO
2. WoN there was undue delegation of power - NO
3. WoN the Financing Program is constitutional – YES
*There were procedural issues but the SC held that the issues are of
transcendental importance
RULING: We find that petitioners have not sufficiently established any basis for the
Court to declare the acts of respondents as unconstitutional.WHEREFORE the
petition is hereby DISMISSED. No costs.SO ORDERED.
RATIO:
First Issue: The Scope of Section 20, Article VII
1. The Financing Program extinguished portions of the country’s pre-existing
loans through either debt buyback or bond-conversion. The buyback
approach essentially pre-terminated portions of public debts while the bond-
conversion scheme extinguished public debts through issuance of new
bonds
2. Renato et al submit that the buyback and bond-conversion schemes do not
constitute the loan contract or guarantee contemplated in the Constitution
and are consequently prohibited.
3. Sec. 20, Art. VII of the Constitution provides
The President may contract or guarantee foreign loans in behalf of the
Republic of the Philippines with the prior concurrence of the Monetary
Board and subject to such limitations as may be provided under law. The
Monetary Board shall, within thirty days from the end of every quarter of
the calendar year, submit to the Congress a complete report of its decisions
on applications for loans to be contracted or guaranteed by the government
or government-owned and controlled corporations which would have the
effect of increasing the foreign debt, and containing other matters as may be
provided by law.
4. Loans are transactions wherein the owner of a property allows another party
to use the property and where customarily, the latter promises to return the
property after a specified period with payment for its use, called interest.
5. On the other hand, bonds are interest-bearing or discounted government or
corporate securities that obligate the issuer to pay the bondholder a
specified sum of money, usually at specific intervals, and to repay the
principal amount of the loan at maturity.
6. The language of the Constitution is simple and clear as it is broad. It
allows the President to contract and guarantee foreign loans. It makes
no prohibition on the issuance of certain kinds of loans or distinctions
as to which kinds of debt instruments are more onerous than others.
7. The only restriction that the Constitution provides, aside from the prior
concurrence of the Monetary Board, is that the loans must be subject to
limitations provided by law.
8. Republic Act No. 245 allows foreign loans to be contracted in the form
of bonds. Sovereign bonds may be issued not only to supplement
government expenditures but also to provide for the
purchase, redemption, or refunding of any obligation, either direct or
guaranteed, of the Philippine Government
9. Renato et al assert that the power to pay public debts lies with Congress and
was deliberately withheld by the Constitution from the President. However,
the law-making authority has promulgated a law ordaining an automatic
appropriations provision for debt servicing by virtue of which the President
is empowered to execute debt payments without the need for further
appropriations.
10. R.A. No. 240,specifically allow the President to pre-terminate debts
without further action from Congress.
11. Renato et al claim that the buyback scheme is neither a guarantee nor a
loan. Buyback is a necessary power which springs from the grant of the
foreign borrowing power. The fact that the Constitution does not explicitly
bar the President from exercising a power does not mean that he or she does
not have that power. A buyback is simply the purchase by the sovereign
issuer of its own debts at a discount. Clearly then, the objection to the
validity of the buyback scheme is without basis.
Second Issue: Delegation of Power
1. Renato et al stress that unlike other powers which may be validly delegated
by the President, the power to incur foreign debts is expressly reserved by
the Constitution in the person of the President. They submit that not Rosario
et al but the President alone and personally can validly bind the country.
2. Necessity gave birth to the doctrine of qualified political agency which
states that the heads of the executive departments occupy political positions
and hold office in an advisory capacity, "are subject to the direction of the
President." Without minimizing the importance of the heads of the various
departments, their personality is in reality but the projection of that of the
President. "each head of a department is, and must be, the President's alter
ego in the matters of that department where the President is required by law
to exercise authority
3. Nevertheless, there are powers vested in the President by the Constitution
which may not be delegated to or exercised by an agent or alter ego of the
President. There are certain presidential powers which arise out of
exceptional circumstances, and if exercised, would involve the suspension
of fundamental freedoms Like the declaration of martial law, the suspension
of the writ of habeas corpus, and the exercise of the pardoning power
notwithstanding the judicial determination of guilt of the accused, all fall
within this special class that demands the exclusive exercise by the
President of the constitutionally vested power.
4. We cannot conclude that the power of the President to contract or guarantee
foreign debts falls within the same exceptional class. Indubitably, the
decision to contract or guarantee foreign debts is of vital public interest, but
only akin to any contractual obligation undertaken by the sovereign, which
arises not from any extraordinary incident, but from the established
functions of governance.
5. The Secretary of Finance or any designated alter ego of the President is
bound to secure the latter’s prior consent to or subsequent ratification of his
acts
6. R.A. No. 245. Section 1 empowers the Secretary of Finance with the
 approval of the President and after consultation of the Monetary Board, to
borrow from time to time on the credit of the Republic of the Philippines
such sum or sums as in his judgment may be necessary, and to issue
therefor evidences of indebtedness of the Philippine Government.

Third Issue: Violation of Constitutional Policies

1. Renato et al allege that the Financing Program violates the constitutional

state policies to promote a social order that will ensure the prosperity and
independence of the nation and free the people from poverty, foster social
justice in all phases of national development, and develop a self-reliant and
independent national economy effectively controlled by Filipinos; thus, the
contracts executed or to be executed pursuant thereto were or would be
tainted by a grave abuse of discretion amounting to lack or excess of
jurisdiction.
2. The gist of Renato et al arguments on violation of constitutional policies
and grave abuse of discretion boils down to their allegation that the debt-
relief agreements entered into by Rosario et al do not deliver the kind of
debt-relief that Renato et al would want. Renato et al submit that there
is possibly a better way to go about debt rescheduling and, on that basis,
insist that the acts of Rosario et al must be struck down. These are rather
tenuous grounds to condemn the subject agreements as violative of
constitutional principles.
3. The raison d etre of the Financing Program is to manage debts incurred by
the Philippines in a manner that will lessen the burden on the Filipino
taxpayers thus the term debt-relief agreements. The measures objected to by
Renato et al were not aimed at incurring more debts but at terminating pre-
existing debts and were backed by the know-how of the country’s economic
managers
4. That the means employed to achieve the goal of debt-relief do not sit well
with Renato et al is beyond the power of this Court to remedy. The exercise
of the power of judicial review is to simply ascertain whether the President
has gone beyond the constitutional limits of his jurisdiction but not to
exercise the power vested in him or to determine the wisdom of his act. In
cases where the main purpose is to nullify governmental acts whether as
unconstitutional or done with grave abuse of discretion, there is a strong
presumption in favor of the validity of the assailed acts. The heavy onus is
in on Renato et al to overcome the presumption of regularity
 PHARMACEUTICAL v. DOH (CALLUENG)
October 9, 2007 | Austia-Martinez, J. | International Agreements Part of the Law of
the Land
PETITIONER: Pharmaceutical and Health Care Association of the Philippines
RESPONDENTS: Health Secretary Francisco T. Duque III; Health Undersecretaries
Dr. Ethelyn P. Nieto, Dr. Margarito M. Galon, Atty. Alexander A. Padilla, & Dr.
Jade F. Del Mundo; and Assistant Secretaries Dr. Mario C. Villaverde, Dr. David J.
Lozada, and Dr. Nemesio T. Gako.
SUMMARY: Cory issued E.O. 51, also known as the Milk Code, under her
legislative powers granted by the Freedom Constitution. The purpose was to give
effect to the International Code of Marketing Breastmilk Substitutes (ICMBS) which
was adopted by the World Health Assembly (WHA). The WHA issued several
resolutions from 1986 onwards which did not permit breastmilk substitutes to claim
nutrition or health benefits. In 2006, DOH issued the Rules and Regulations of E.O.
51, Relevant International Agreements, Penalizing Violations thereof and for other
purposes (RIRR). The RIRR was meant to implement E.O. 51 plus the WHA
resolutions. The RIRR had provisions which mandated exclusive breastfeeding from
0-6 months, continued breastfeeding up to 24 months, and absolutely prohibiting
advertisements and promotions of breastmilk substitutes. The said provisions were
not in the Milk Code and were based on the WHA resolutions. The Pharmaceutical
and Health Care Association of the Philippines filed a Petition for Certiorari under
Rule 65, assailing that the RIRR was unconstitutional and went beyond the law it
was supposed to implement (E.O.51). ISSUE WoN the pertinent international
agreements entered into by the Philippines are part of the law of the land and may be
implemented by the DOH through the RIRR. YES, but only the ICBMS became part
of the law of the land. The ICMBS is part of domestic law by transformation—by
virtue of a local legislative act, which is the Milk Code. However, the SC held that
the WHA resolutions were only soft law, thus not binding/obligatory. As defined by
Father Bernas: Custom or customary international law means “a general and
consistent practice of states followed by them from a sense of legal
obligation [opinio juris].” This statement contains the two basic elements of
custom:(1) the material factor, that is, how states behave—includes elements of
duration, consistency and generality of the practice of states. The required duration
can either be long or short. The more important element is consistency and generality
of practice. (2) the psychological or subjective factor, that is, why they behave the
way they do—It is important to determine this; do they behave out of obligation or
courtesy? It is the belief that a certain form of behavior is obligatory (opinion juris)
that makes practice international rule. DOH was not able to prove that the WHA
resolutions have the basic elements of customary law. The DOH therefore could not
implement a resolution that is not part of the law of the land. Therefore, the
provisions that relate to the WHA resolutions and those that are outside the Milk
Code cannot be enforced since it is not anchored on any domestic legislation.
DOCTRINE: Treaties become part of the law of the land through transformation
pursuant to Article VII, Section 21 of the Constitution. Thus, treaties or conventional
international law must go through a process prescribed by the Constitution for it to
be transformed into municipal law that can be applied to domestic conflicts.
The ICMBS and WHA Resolutions are not treaties as they have not been concurred
in by at least two-thirds of all members of the Senate as required under Section 21,
Article VII of the 1987 Constitution.
FACTS:
1. Executive Order No. 51 (Milk Code) was issued by President Corazon
Aquino on October 28, 1986 by virtue of the legislative powers granted to
the president under the Freedom Constitution
a. One of the preambular clauses of the Milk Code states that the law
seeks to give effect to Article 11 of the International Code of
Marketing of Breastmilk Substitutes (ICBMS), a code adopted by
the World Health Assembly (WHA) in 1981.
2. From 1982-2006, the WHA adopted several Resolutions to the effect that
breastfeeding should be supported, promoted and protected, hence, it should
be ensured that nutrition and health claims are not permitted for breastmilk
substitutes
3. The Philippines ratified the International Convention on the Rights of the
Child in 1990. Article 24 of said instrument provides that State Parties
should take appropriate measures to diminish infant and child mortality, and
ensure that all segments of society, specially parents and children, are
informed of the advantages of breastfeeding.
4. On May 15, 2006, the DOH issued herein assailed Administrative Order
No. 2006-0012 or the Revised Implementing Rules and Regulations of
Executive Order No. 51 (RIRR), which was to take effect on July 7, 2006
5. On June 28, 2006, petitioner, representing its members that are
manufacturers of breastmilk substitutes, filed the present Petition for
Certiorari and Prohibition with Prayer for Issuance of a Temporary
Restraining Order (TRO) or a Writ of Preliminary Injunction
6. The main issue raised in the petition by the petitioner is whether respondent
officers of the DOH acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and in
violation of the provisions of the Constitution in promulgating the RIRR
ISSUE/s:
10. WoN the pertinent international agreements entered into by the Philippines
are part of the law of the land and may be implemented by the DOH
through the RIRR. YES, BUT ONLY THE ICBMS BECAME PART OF
THE LAW OF THE LAND.
RULING: WHEREFORE, the petition is PARTIALLY GRANTED. Sections
 4(f), 11 and 46 of Administrative Order No. 2006-0012 dated May 12, 2006
are declared NULL and VOID for being ultra vires. The Department of
Health and respondents are PROHIBITED from implementing said
provisions.
The Temporary Restraining Order issued on August 15, 2006
is LIFTED insofar as the rest of the provisions of Administrative Order No.
2006-0012 is concerned.
RATIO:
1. The ICMBS is part of the law of the land via TRANSFORMATION.
However, the subsequent WHA resolutions that were used by the DOH
as basis for some parts of the RIRR are not part of the law of the land
as they are only recommendations. These WHA resolutions are only
SOFT LAW and are not binding/obligatory. In the absence of proof that
these resolutions are opinion juris, the executive branch cannot implement
them through the domestic agencies. Legislation is needed in order to
transform the recommendations into domestic law
2. UN Convention on the Rights of the Child, International Covenant on
Economic, Social and Cultural Rights, Convention on Elimination of All
Forms of Discrimination Against Women—The Court notes that these
conventions only provide general terms as to diminishing infant mortality,
advantages/disadvantages of breastfeeding, ensure that women are provided
with services and nutrition in connection with pregnancy and lactation.
They do not contain specific provisions regarding the use or marketing of
breastmilk substitutes.
3. But the ICMBS and WHA resolutions have specific provisions
regarding breastmilk substitutes.
4. Under the 1987 Constitution, international law can become a part of the
law of the land either by TRANSFORMATION OR
INCORPORATION.
5. Transformation—I.L. is transformed into domestic law through a
constitutional mechanism such as local legislation. Treaties become part of
domestic law through transformation pursuant to Article VII, Section 21 (no
treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the members of the Senate).
a. The ICMBS and WHA Resolutions are not treaties as they have
not been concurred by at least two-thirds of all members of the
Senate. However, the ICMBS which was adopted by the WHA
in 1981 has been transformed into domestic law through local
legislation, The Milk Code. Consequently, it is the Milk Code
that has force and effect here in this jurisdiction and not the
ICMBS per se.
6. Incorporation—by mere constitutional declaration, I.L. is deemed to have
the force of domestic law. “The Philippines renounces war as an instrument
of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation and amity with all nations.”
a. Mijares v. Ranada: Generally accepted principles of international
law, by virtue of the incorporation clause of the Constitution, form
part of the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees
those customary rules accepted as binding result from the
combination of two elements: (1) the established, widespread,
and consistent practice on the part of States; and (2)
a psychological element known as
the opinion juris sive necessitates (opinion as to law or necessity).
Implicit in the latter element is a belief that the practice in
question is rendered obligatory by the existence of a rule of law
requiring it.
7. General Accepted Principles of International Law—norms of general or
customary international law which are binding on all states
a. Examples: Renunciation of was as an instrument of national
policy, principle of sovereign immunity, a person’s right to life,
liberty and due process, pacta sunt servanda
b. They have the character of jus rationale and are valid through all
kinds of human societies; they are basic to legal systems, generally
c. As defined by Father Bernas: Custom or customary international
law means “a general and consistent practice of states followed by
them from a sense of legal obligation [opinio juris].” This
statement contains the two basic elements of custom:
i. (1) the material factor, that is, how states behave—
includes elements of duration, consistency and generality
of the practice of states. The required duration can either
be long or short. The more important element is
consistency and generality of practice.
ii. (2) the psychological or subjective factor, that is, why
they behave the way they do—It is important to
determine this; do they behave out of obligation or
courtesy? It is the belief that a certain form of behavior is
obligatory (opinion juris) that makes practice international
rule.
8. WHA Resolutions—are they customary law? NO, they were merely
recommendations and not regulations.
a. World Health Org is one of the specialized agencies allied with
the U.N.
b. The WHA determines the policies of the WHO and has the
power to adopt regulations concerning the “advertising, labeling of
biological, pharmaceutical and similar products in international
commerce” and to “make recommendations to members with
respect to any matter within the competence of the Organization”.
 c. The legal effect of the WHA Resolutions and practiced by at least a majority of the member states. Neither have
Recommendations are different. Regulations duly adopted by the respondents proven that compliance by member states with said WHA
WHA bind member states by virtue of Articles 19-227 of the resolutions was obligatory in nature.
WHA convention. As for recommendations, Article 23 states that 11. Legislation is necessary to transform the provisions of the WHA resolutions
they do not come into force for members, unlike into domestic law. They cannot be considered as domestic law that can be
conventions/agreements under Article 19 and regulations under implemented by domestic agencies without a law enacted by the legislature
Article 21. that creates such need. Only the provisions of the Milk Code but not those
d. The ICMBS was adopted by the WHA as a recommendation of the subsequent WHA resolutions can be validly implemented by the
and not a regulation. The WHA resolution adopting the DOH through the RIRR.
ICMBS and subsequent WHA resolutions are merely
recommendatory and legally non-binding.
9. Thus, unlike what has been done with the ICMBS whereby the legislature
enacted most of the provisions into law which is the Milk Code, the
subsequent WHA Resolutions, specifically providing for exclusive
breastfeeding from 0-6 months, continued breastfeeding up to 24 months,
and absolutely prohibiting advertisements and promotions
of breastmilk substitutes, have not been adopted as a domestic law.
10. The WHA Resolutions constitute SOFT LAW or non-binding norms,
principles and practices that influence state behavior. The respondents
have not presented any evidence to prove that the WHA Resolutions,
although signed by most of the member states, were in fact enforced or

7 Article 19. The Health Assembly shall have authority to adopt conventions or
agreements with respect to any matter within the competence of the Organization. A
two-thirds vote of the Health Assembly shall be required for the adoption of
such conventions or agreements, which shall come into force for each Member
when accepted by it in accordance with its constitutional processes.

Article 20. Each Member undertakes that it will, within eighteen months after the
adoption by the Health Assembly of a convention or agreement, take action
relative to the acceptance of such convention or agreement. Each Member shall
notify the Director-General of the action taken, and if it does not accept such
convention or agreement within the time limit, it will furnish a statement of the
reasons for non-acceptance. In case of acceptance, each Member agrees to make
an annual report to the Director-General in accordance with Chapter XIV.

Article 21. The Health Assembly shall have authority to adopt regulations
concerning: (a) sanitary and quarantine requirements and other procedures
designed to prevent the international spread of disease; (b) nomenclatures with
respect to diseases, causes of death and public health practices; (c) standards with
respect to diagnostic procedures for international use; (d) standards with respect
to the safety, purity and potency of biological, pharmaceutical and similar products
moving in international commerce; (e) advertising and labeling of biological,
pharmaceutical and similar products moving in international commerce.

Article 22. Regulations adopted pursuant to Article 21 shall come into force for
all Members after due notice has been given of their adoption by the Health
Assembly except for such Members as may notify the Director-General of
rejection or reservations within the period stated in the notice.
 Abaya v. Ebdane (Izzy)
February 14, 2007 | Callejo, Sr., J. | Executive Agreements vis-a-vis Exchange of
Notes
PETITIONER: PLARIDEL M. ABAYA, COMMODORE PLARIDEL C.
GARCIA (retired) and PMA ’59 FOUNDATION, INC., rep. by its President,
COMMODORE CARLOS L. AGUSTIN (retired)
RESPONDENTS: HON. SECRETARY HERMOGENES E. EBDANE, JR., in
his capacity as Secretary of the DEPARTMENT OF PUBLIC WORKS and
HIGHWAYS, HON. SECRETARY EMILIA T. BONCODIN, in her capacity
as Secretary of the DEPARTMENT OF BUDGET and MANAGEMENT,
HON. SECRETARY CESAR V. PURISIMA, in his capacity as Secretary of the
DEPARTMENT OF FINANCE, HON. TREASURER NORMA L. LASALA,
in her capacity as Treasurer of the Bureau of Treasury, and CHINA ROAD and
BRIDGE CORPORATION
SUMMARY: Based on the Exchange of Notes of the Japanese and Philipppine
Governments through their respective representatives, Japanese loans would be
extended to the Philippines for the promotion of the country’s economic
stabilization through Japan Bank International Cooperation (JBIC) as provided
in the Loan Agreement. Proceeds of the loan would be used to finance the
development project, of which the Catanduanes Circumstantial Road was part
of. The road was divided into four contract packages; CP I, II, III and IV.
DPWH, as the agency assigned to implement the project, held a bid and after
evaluation, the project manager recommended the award of the contract to
China Road and Bridge Corporation. A contract of Agreement was entered into
by DPWH and China Road for the implementation of the CP I project.
Petitioners maintain that the reward of the contract to China Road violates RA
9184 which provides for the ceiling for bid prices. hey claim that because the
Loan Agreement entered into by JBIC and the Philippines is neither a treaty,
international nor executive agreement, it falls under this law. Issue is WoN
Contract Agreement executed by and between the Republic of the Philippines,
through DPWH, and the China Road & Bridge Corporation, for the
implementation of civil works for CP I under JBIC Loan Agreement is void ab
initio. Court ruled that it is valid. EO 40 is applicable. The Court also holds that
Loan Agreement taken in conjunction with the Exchange of Notes between the
Japanese Government and the Philippine Government is an executive
agreement. BIC may well be considered an adjunct of the Japanese
Government. Further, Loan Agreement is indubitably an integral part of the
Exchange of Notes. It forms part of the Exchange of Notes such that it cannot be
properly taken independent thereof.
DOCTRINE: Significantly, an exchange of notes is considered a form of an
executive agreement, which becomes binding through executive action without
the need of a vote by the Senate or Congress. Agreements concluded by the
President which fall short of treaties are commonly referred to as executive
agreements and are no less common in our scheme of government than are the
more formal instruments – treaties and conventions.
FACTS:
1. Based on the Exchange of Notes on December 27, 1999, the Japanese
government, through Mr. Yoshihisa Ara, the Ambassador Extraordinary and
Plenipotentiary of Japan to the Republic of the Philippines, and the
Philippine government, through Domingo Siazon, the Secretary of Foreign
Affairs, reached an understanding on Japanese loans to be extended to the
Philippines which are for the promotion of the country’s economic
stabilization and development efforts.
2. The Exchange of Notes consisted of two documents: (1) A letter from
Japanese Government signed by Ambassador Ara confirming the
understanding reached between the two governments; and (2) Records of
Discussion where the salient terms of the loans were reiterated. Both Ara
and Siazon signed the Records.
3. The Exchange of Notes provided that the loans to be extended consisted of
Loan I and II.
4. In accordance with the agreement reached by the Japan and Philippine
governments, the Philippines obtained and was granted by Japan Bank for
International Cooperation (JBIC) a loan as provided in Loan Agreement
PH-P204.
5. The proceeds of the Loan Agreement were to be used to finance the Asterial
Road Links Development Project, of which the Catanduanes
Circumferential Road was a part of. The road was divided into four contract
packages. (CP I, II, III and IV)
6. Subsequently, the DPWH, as the government agency tasked to implement
the project, caused the publication of the "Invitation to Prequalify and to
Bid" for the implementation of the CP I project.
7. A total of 23 foreign and local contractors responded to the invitation by
submitting their accomplished prequalification documents. Eight
contractors were evaluated or considered eligible to bid as concurred by the
JBIC. One of them, however, withdrew; thus, only seven contractors
submitted their bid proposals.
8. The result of the bidding revealed the three lowest bidders and their
respective bids.
a. China Road and Bridge Corporation
b. Cavite Ideal International Construction Development Corporation
c. Italian Thai Development Public Company, Limited
9. Mr. Hedifume Ezawa, Project Manager of the Catanduanes Circumferential
Road Improvement Project (CCRIP), recommended the award of the
contract to private respondent China Road & Bridge Corporation.
10. A Contract of Agreement was entered into by and between the DPWH and
private respondent China Road & Bridge Corporation for the
implementation of the CP I project.
11. Petitioner Plaridel Abaya claims he filed the petition as a taxpayer, former
lawmaker, and a Filipino citizen. Petitioner Plaridel Garcia likewise claims
that he filed the suit as a taxpayer, former military officer and a Filipino
 citizen. Petitioner PMA ’59, represented by its President Carlos Agustin,
claims that its members are all taxpayers and alumni of PMA. Besides the
public respondents mentioned, private respondent China Road & Bridge
Corporation is a duly organized corporation engaged in the business of
construction.
12. Petitioners assert that:
a. The award of the contract to private respondent China Road &
Bridge Corporation violates RA 9184, or the Government
Procurement Reform Act, particularly Section 31
i. Under RA 9184, all bids or awards should not exceed the
ceilings or upper limits; otherwise, the contract is deemed
void and inexistent. Resolution No. PJHL-A-04-012 was
allegedly issued with grave abuse of discretion because it
recommended the award of the contract to private
respondent China Road & Bridge Corporation whose bid
was more than P200 million overpriced based on the
ABC.
b. The petitioners insist that Loan Agreement No. PH- P204 between
the JBIC and the Philippine Government is neither a treaty, an
international nor an executive agreement that would bar the
application of RA 9184. They point out that to be considered a
treaty, an international or an executive agreement, the parties must
be two sovereigns or States whereas in the case of Loan
Agreement No. PH-P204, the parties are the Philippine
Government and the JBIC, a banking agency of Japan, which has a
separate juridical personality from the Japanese Government.
c. Disbursement of public funds to implement a patently void and
illegal contract is itself illegal and must be enjoined.
13. Respondents, through the Office of the Solicitor General:
a. Petitioners have no locus stand
b. Maintain that the imposition of ceilings or upper limits on bid
prices in RA 9184 does not apply because the CP I project and the
entire Catanduanes Circumferential Road Improvement Project,
financed by Loan Agreement No. PH-P204 executed between the
Philippine Government and the JBIC, is governed by the latter’s
Procurement Guidelines which precludes the imposition of ceilings
on bid prices.
c. The public respondents characterize foreign loan agreements,
including Loan Agreement No. PH- P204, as executive agreements
and, as such, should be observed pursuant to the fundamental
principle in international law of pacta sunt servanda.
i. The Constitution, the public respondents emphasize,
recognizes the enforceability of executive agreements in
the same way that it recognizes generally accepted
principles of international law as forming part of the law
of the land. This recognition allegedly buttresses the
binding effect of executive agreements to which the
Philippine Government is a signatory. It is pointed out
by the public respondents that executive agreements are
essentially contracts governing the rights and obligations
of the parties. A contract, being the law between the
parties, must be faithfully adhered to by them. Guided by
the fundamental rule of pacta sunt servanda, the
Philippine Government bound itself to perform in good
faith its duties and obligations under Loan Agreement
No. PH-P204.
d. Deny that there was illegal disbursement of public funds by the
DBM.
ISSUES:
1. WoN petitioners have standing to file the instant Petition. – YES
2. WoN the Contract Agreement executed by and between the Republic of the
Philippines, through DPWH, and the China Road & Bridge Corporation, for
the implementation of civil works for CP I under JBIC Loan Agreement is
void ab initio.– NO
RULING: Wherefore premises considered, the petition is hereby DISMISSED.
RATIO:
1. Locus standi is "a right of appearance in a court of justice on a given
question." More particularly, it is a party’s personal and substantial interest
in a case such that he has sustained or will sustain direct injury as a result of
the governmental act being challenged.
2. Locus standi, however, is merely a matter of procedure and it has been
recognized that in some cases, suits are not brought by parties who have
been personally injured by the operation of a law or any other government
act but by concerned citizens, taxpayers or voters who actually sue in the
public interest. Consequently, the Court, in a catena of cases, has invariably
adopted a liberal stance on locus standi, including those cases involving
taxpayers.
3. The prevailing doctrine in taxpayer’s suits is to allow taxpayers to question
contracts entered into by the national government or government- owned or
controlled corporations allegedly in contravention of law. Significantly, a
taxpayer need not be a party to the contract to challenge its validity.
4. EO 40, not RA 9184, is applicable to the procurement process undertaken
for the CP I project. RA 9184 cannot be given retroactive application.
5. EO 40 expressly recognizes as an exception to its scope and application
those government commitments with respect to bidding and award of
contracts financed partly or wholly with funds from international financing
institutions as well as from bilateral and other similar foreign sources.
6. Consequently, in accordance with these applicable laws, the procurement of
goods and services for the CP I project is governed by the corresponding
 loan agreement entered into by the government and the JBIC, i.e., Loan
Agreement No. PH-P204.
7. The said loan agreement stipulated that the procurement of goods and
services for the Arterial Road Links Development Project (Phase IV), of
which CP I is a component, is to be governed by the JBIC Procurement
Guidelines.
8. Section 5.09. Award of Contract. The contract is to be awarded to the
bidder whose bid has been determined to be the lowest evaluated bid and
who meets the appropriate standards of capability and financial resources.
A bidder shall not be required as a condition of award to undertake
responsibilities or work not stipulated in the specifications or to modify the
bid.
9. Since these terms and conditions are made part of Loan Agreement No. PH-
P204, the government is obliged to observe and enforce the same in the
procurement of goods and services for the CP I project. Private respondent
China Road & Bridge Corporation’s bid was the lowest evaluated bid, albeit
28.95% higher than the ABC. In accordance with the JBIC Procurement
Guidelines, therefore, it was correctly awarded the contract for the CP I
project.
10. The petitioners, in order to place the procurement process undertaken for
the CP I project within the ambit of RA 9184, assert that Loan Agreement
No. PH-P204 is neither a treaty, an international agreement nor an executive
agreement.
11. They cite Executive Order No. 459 dated November 25, 1997 where the
three agreements are defined in this wise:
a. International agreement – shall refer to a contract or understanding,
regardless of nomenclature, entered into between the Philippines
and another government in written form and governed by
international law, whether embodied in a single instrument or in
two or more related instruments.
b. Treaties – international agreements entered into by the Philippines
which require legislative concurrence after executive ratification.
This term may include compacts like conventions, declarations,
covenants and acts.
c. Executive agreements – similar to treaties except that they do not
require legislative concurrence.
12. The petitioners mainly argue that Loan Agreement No. PH- P204 does not
fall under any of the three categories because to be any of the three, an
agreement had to be one where the parties are the Philippines as a State and
another State. The JBIC, the petitioners maintain, is a Japanese banking
agency, which presumably has a separate juridical personality from the
Japanese Government.
13. The petitioners’ arguments fail to persuade. The Court holds that Loan
Agreement No. PH-P204 taken in conjunction with the Exchange of Notes
dated December 27, 1999 between the Japanese Government and the
Philippine Government is an executive agreement.
14. Loan Agreement No. PH-P204 was executed by and between the JBIC and
the Philippine Government pursuant to the Exchange of Notes. Under the
circumstances, the JBIC may well be considered an adjunct of the Japanese
Government.
15. Further, Loan Agreement No. PH-P204 is indubitably an integral part of the
Exchange of Notes. It forms part of the Exchange of Notes such that it
cannot be properly taken independent thereof.
16. Definition of an "exchange of notes" under international law:
a. An "exchange of notes" is a record of a routine agreement that has
many similarities with the private law contract. The agreement
consists of the exchange of two documents, each of the parties
being in the possession of the one signed by the representative of
the other. Under the usual procedure, the accepting State repeats
the text of the offering State to record its assent. The signatories of
the letters may be government Ministers, diplomats or
departmental heads. The technique of exchange of notes is
frequently resorted to, either because of its speedy procedure, or,
sometimes, to avoid the process of legislative approval.
17. It is stated that "treaties, agreements, conventions, charters, protocols,
declarations, memoranda of understanding, modus vivendi and exchange of
notes" all refer to "international instruments binding at international law." It
is further explained that although these instruments differ from each other
by title, they all have common features and international law has applied
basically the same rules to all these instruments.
18. These rules are the result of long practice among the States, which have
accepted them as binding norms in their mutual relations. Therefore, they
are regarded as international customary law. Since there was a general
desire to codify these customary rules, two international conventions were
negotiated.
19. The 1969 Vienna Convention on the Law of Treaties contains rules for
treaties concluded between States. The 1986 Vienna Convention on the Law
of Treaties between States and International Organizations which has still
not entered into force, added rules for treaties with international
organizations as parties.
20. Significantly, an exchange of notes is considered a form of an executive
agreement, which becomes binding through executive action without
the need of a vote by the Senate or Congress. Agreements concluded by
the President which fall short of treaties are commonly referred to as
executive agreements and are no less common in our scheme of government
than are the more formal instruments – treaties and conventions.
21. Under the fundamental principle of international law of pacta sunt servanda,
the DPWH, as the executing agency of the projects financed by Loan
Agreement No. PH-P204, rightfully awarded the contract for the
implementation of civil works for the CP I project to private respondent
China Road & Bridge Corporation.
 THE PROVINCE OF NORTH COTABATO vs. GRP PEACE PANEL
(PRESH) (Sorry, it’s a really long case)
October 14, 2008 | Carpio-Morales, J. | Progressive Taxation
PETITIONER: The Province of North Cotabato et. al
RESPONDENTS: Government of the Republic of the Philippines Peace Panel on
Ancestral Domains (Dean Candelaria)
SUMMARY: The Philippine Government and the MILF were scheduled to sign a
Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the
GRP-MILF Tripoli Agreement on Peace of 2001 in Malaysia. Howevever,
respondent GRP was enjoined from fomally signing it by virtue of a TRO issued by
the Court at the issuance of the petitioners prior to the scheduled signing of the
MOA-AD. There was a long process of negation and agreements between the two
parties. The GRP and MILF Peace Panels signed the Agreement on General
Cessation of Hostilities. Then, they signed the General Framework of Agreement of
Intent. However, the MILF attacked a number of municipalities in Central Mindanao
and took control of the town hall of Kauswagan, Lanao del Norte. In response, then
President Estrada declared and carried out an all-out-war against the MILF. When
President GMA assumed office, the military offensive against the MILF was
suspended and the government sought a resumption of the peace talks. Formal peace
talks were held in Libya which resulted to the crafting of the GRP-MILF Tripoli
Agreement on Peace (Tripoli Agreement 2001) which consists of three (3) aspects:
a.) security aspect; b.) rehabilitation aspect; and c.) ancestral domain aspect.
Various negotiations were held which led to the finalization of the Memorandum of
Agreement on the Ancestral Domain (MOA-AD). The said memorandum was set to
be signed last August 5, 2008.
In its body, it grants ―the authority and jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro to the Bangsamoro Juridical Entity (BJE). The
latter, in addition, has the freedom to enter into any economic cooperation and
traderelation with foreign countries. ―The sharing between the Central Government
and the BJE of total production pertaining to natural resources is to be 75:25 in favor
of the BJE.
The MOA-AD further provides for the extent of the territory of the Bangsamoro. It
describes it as ―the land mass as well as the maritime, terrestrial, fluvial and alluvial
domains, including the aerial domain and the atmospheric space above it, embracing
the Mindanao-Sulu-Palawan geographic region. With regard to governance, on the
other hand, a shared responsibility and authority between the Central Government
and BJE was provided. The relationship was described as ―associativeǁ.
With the formulation of the MOA-AD, petitioners aver that the negotiation and
finalization of the MOA-AD violates constitutional and statutory provisions on
public consultation, as mandated by Executive Order No. 3, and right to information.
They further contend that it violates the Constitution and laws. Hence, the filing of
the petition.
The issues are:
PROCEDURAL: 1) W/N the case if ripe for adjudication? – Yes. The case was ripe
for adjudication for it was held that any alleged violation of the Constitution by any
branch of the government is a proper matter for judicial review. 2) W/N the petitions
have become moot and academic? – No, the controversy was an exception to the
“moot and academic” principle due to tis nature.
SUBSTANTIVE: 1) WoN the respondents violated constitututional and statutory
provisions on public consultation and right to information when they negotiated and
later initiated the MOA-AD – Yes. 2) W/N the signing of the MOA, the Government
of the Republic of the Philippines would be binding itself a) to create and recognize
the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or
political subdivision not recognized by law; - Yes. b) to revise or amend the
Constitution and existing laws to conform to the MOA; - Yes. c) to concede to or
recognize the claim of the Moro Islamic Liberation Front for ancestral domain in
violation of Republic Act No. 8371.
DOCTRINE: The MOA-AD cannot be reconciled with the present Constitution and
laws. Not only its specific provisions but the very concept underlying them, namely,
the associative relationship envisioned between the GRP and the BJE, are
unconstitutional, for the concept presupposes that the associated entity is a state and
implies that the same is on its way to independence.
FACTS:
1. On August 5, 2008, the Government of the Republic of the Philippines (GRP) and
the MILF were scheduled to sign a Memorandum of Agreement on the Ancestral
Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001
in Kuala Lumpur, Malaysia.
2. The signing of the MOA-AD between the GRP and the MILF did not materialize
due to the motion of petitioners, specifically those who filed their cases before the
scheduled signing of the MOA-AD. Thus, this Court issued a TRO enjoining the
GRP from signing the same.
3. The MOA-AD was preceded by a long process of negotiation and the concluding of
several prior agreements between the two parties beginning in 1996.. On July 18,
1997, the GRP and MILF Peace Panels signed the Agreement on General Cessation
of Hostilities. The following year, they signed the General Framework of Agreement
of Intent on August 27, 1998.
4. Early on, however, it was evident that there was not going to be any smooth sailing
in the GRP- MILF peace process. Towards the end of 1999 up to early 2000, the
MILF attacked a number of municipalities in Central Mindanao and, in March 2000,
it took control of the town hall of Kauswagan, Lanao del Norte. In response, then
President Joseph Estrada declared and carried out an all-out-war against the MILF.
5. When President GMA assumed office, the military offensive against the MILF was
suspended and the government sought a resumption of the peace talks. President
Arroyo asked the Government of Malaysia through Prime Minister Mahathir
Mohammad to help convince the MILF to return to the negotiating table. MILF
lyeventual decided to meet with the GRP.
6. Formal peace talks between the parties were held in Tripoli, Libya from June 20-22,
2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace
(Tripoli Agreement 2001) containing the basic principles and agenda on security,
rehabilitation and acenstral domain.
 7. In 2005, several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form, which was
set to be signed last August 5, 2008.
8. The main body of the MOA-AD is divided into four strands, namely: Concepts and
Principles, Territory, Resources, and Governance.
9. In its body, it grants ―the authority and jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro to the Bangsamoro Juridical Entity (BJE). The
latter, in addition, has the freedom to enter into any economic cooperation and
traderelation with foreign countries. ―The sharing between the Central Government
and the BJE of total production pertaining to natural resources is to be 75:25 in favor
of the BJE.
10. The MOA-AD further provides for the extent of the territory of the Bangsamoro. It
describes it as ―the land mass as well as the maritime, terrestrial, fluvial and
alluvial domains, including the aerial domain and the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region. With regard to
governance, on the other hand, a shared responsibility and authority between the
Central Government and BJE was provided. The relationship was described as
―associativeǁ.
11. With the formulation of the MOA-AD, petitioners aver that the negotiation and
finalization of the MOA-AD violates constitutional and statutory provisions on
public consultation, as mandated by Executive Order No. 3, and right to information.
They further contend that it violates the Constitution and laws. Hence, the filing of
the petition.
ISSUES:
Procedural
1. W/N the petition is ripe for adjudication? – Yes.
2. W/N the petitions have become moot and academic? – No
Substantive
1. W/N the respondents violated constitututional and statutory provisions on public
consultation and right to information when they negotiated and later initiated the
MOA-AD – Yes.
2. W/N the signing of the MOA, the Government of the Republic of the Philippines
would be binding itself
a. to create and recognize the Bangsamoro Juridical Entity (BJE) as a
separate state, or a juridical, territorial or political subdivision not
recognized by law; - Yes
b. to revise or amend the Constitution and existing laws to conform to the
MOA; - Yes.
c. to concede to or recognize the claim of the Moro Islamic Liberation Front
for ancestral domain in violation of Republic Act No. 8371 (The
Indigenous Peoples Rights Act)- Yes
RULING:
IN VIEW WHEREOF, the petition is granted and Resolution No. 93-4359 of the respondent
Commission is hereby annulled and set aside. No costs.
RATIO:
PROCEDURAL
The case is ripe for adjudication
1. The Solicitor General argues that there is no justiciable controversy that is ripe for
judicial review in the present petitions, reasoning that the unsigned MOA-AD
is simply a list of consensus points subject to further negotiations and legislative
enactments as well as constitutional processes aimed at attaining a final peaceful
agreement. Simply put, the MOA-AD remains to be a proposal that does not
automatically create legally demandable rights and obligations until the list of
operative acts required have been duly complied with
2. The present petitions allege that respondents GRP Panel and PAPP Esperon drafted
the terms of the MOA-AD without consulting the local government units or
communities affected, nor informing them of the proceedings. As will be discussed
in greater detail later, such omission, by itself, constitutes a departure by
respondents from their mandate under E.O. No. 3.
3. Furthermore, the petitions allege that the provisions of the MOA-AD violate the
Constitution, as it implies an amendment to the Constitution to accommodate the
MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of
the Constitution. Respondents exceeded their constitutes another violation of its
authority.
4. The petitions are ripe for adjudication. The failure of respondents to consult the local
government units or communities affected constitutes a departure by respondents
from their mandate under E.O. No. 3. Moreover, respondents exceeded their
authority by the mere act of guaranteeing amendments to the Constitution. Any
alleged violation of the Constitution by any branch of government is a proper matter
for judicial review.
The petitions have not yet become moot and academic
1. Contrary to the assertion of respondents that the non-signing of the MOA-AD and
the eventual dissolution of the GRP Peace Panel mooted the present petitions, the
Court finds that the present petitions provide an exception to the moot and academic
principle in view of (a) the grave violation of the Constitution involved; (b) the
exceptional character of the situation and paramount public interest; (c) the need to
formulate controlling principles to guide the bench, the bar, and the public; and (d)
the fact that the case is capable of repetition yet evading review.
2. The MOA-AD is a significant part of a series of agreements necessary to carry out
the GRP-MILF Tripoli Agreement on Peace signed by the government and the
MILF. Hence, the present MOA-AD can be renegotiated or another one drawn up
that could contain similar or significantly dissimilar provisions compared to the
original.
3. The Court, however, finds that the prayers for mandamus have been rendered moot
in view of the respondent’s action in providing the Court and the petitioners with the
official copy of the final draft of the MOA-AD and its annexes.
SUBSTANTIVE
The respondents violated constitututional and statutory provisions on public
consultation and right to information when they negotiated and later initiated the MOA-
AD
1. The Court finds that there is a grave violation of the Constitution involved in the
matters of public concern (Sec 7 Art III) under a state policy of full disclosure of all
 its transactions involving public interest (Art 2, Sec 28) including public
consultation under RA 7160 (Local Government Code of 1991).
2. (Sec 7 ArtIII) The right to information guarantees the right of the people to demand
information, while Sec 28 recognizes the duty of officialdom to give information
even if nobody demands. The complete and effective exercise of the right to
information necessitates that its complementary provision on public disclosure
derive the same self- executory nature, subject only to reasonable safeguards or
limitations as may be provided by law.
3. The contents of the MOA-AD are matters of paramount public concern involving
public interest in the highest order. In declaring that the right to information
contemplates steps and negotiations leading to the consummation of the contract,
jurisprudence finds no distinction as to the executory nature or commercial character
of the agreement.
4. E.O. No. 3 itself is replete with mechanics for continuing consultations on both
national and local levels and for a principal forum for consensus-building. In fact, it
is the duty of the Presidential Adviser on the Peace Process to conduct regular
dialogues to seek relevant information, comments, advice, and recommendations
from peace partners and concerned sectors of society.
By signing of the MOA, the Government of the Republic of the Philippines would be
binding itself to (a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a
separate state, or a juridical, territorial or political subdivision not recognized by law;
1. Yes. The provisions of the MOA indicate, among other things, that the Parties
aimed to vest in the BJE the status of an associated state or, at any rate, a status
closely approximating it.
2. The concept of association is not recognized under the present Constitution. No
province, city, or municipality, not even the ARMM, is recognized under our laws
as having an “associative” relationship with the national government. Indeed, the
concept implies powers that go beyond anything ever granted by the Constitution to
any local or regional government. It also implies the recognition of the associated
entity as a state. The Constitution, however, does not contemplate any state in this
jurisdiction other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for indeaaupendence.
3. The BJE is a far more powerful entity than the autonomous region recognized
in the Constitution. It is not merely an expanded version of the ARMM, the status
of its relationship with the national government being fundamentally different from
that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria
of a state laid down in the Montevideo Convention, namely, a permanent
population, a defined territory, a government, and a capacity to enter into
relations with other states.
4. Even assuming arguendo that the MOA-AD would not necessarily sever any portion
of Philippine territory, the spirit animating it – which has betrayed itself by its use of
the international law concept of association – runs counter to the national
sovereignty and territorial integrity of the Republic.
5. The defining concept underlying the relationship between the national government
and the BJE being itself contrary to the present Constitution, it is not surprising that
many of the specific provisions of the MOA-AD on the formation and powers of the
BJE are in conflict with the Constitution and the laws. The BJE is more of a state
than an autonomous region. But even assuming that it is covered by the term
“autonomous region” in the constitutional provision just quoted, the MOA-AD
would still be in conflict with it.
(b) to revise or amend the Constitution and existing laws to conform to the MOA:
1. The MOA-AD provides that “any provisions of the MOA- AD requiring
amendments to the existing legal framework shall come into force upon the signing
of a Comprehensive Compact and upon effecting the necessary changes to the legal
framework,” implying an amendment of the Constitution to accommodate the
MOA- AD. This stipulation, in effect, guaranteed to the MILF the amendment
of the Constitution.
2. It will be observed that the President has authority, as stated in her oath of office,
only to preserve and defend the Constitution. Such presidential power does not,
however, extend to allowing her to change the Constitution, but simply to
recommend proposed amendments or revision. As long as she limits herself to
recommending these changes and submits to the proper procedure for constitutional
amendments and revision, her mere recommendation need not be construed as an
unconstitutional act.
3. The “suspensive clause” in the MOA-AD viewed in light of the above-discussed
standards.
4. Given the limited nature of the President’s authority to propose constitutional
amendments, she cannot guarantee to any third party that the required
amendments will eventually be put in place, nor even be submitted to a
plebiscite. The most she could do is submit these proposals as recommendations
either to Congress or the people, in whom constituent powers are vested.
(c) to concede to or recognize the claim of the Moro Islamic Liberation Front for
ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES
RIGHTS ACT OF 1997) particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)
1. This strand begins with the statement that it is “the birthright of all Moros and all
Indigenous peoples of Mindanao to identify themselves and be accepted as
‘Bangsamoros.’” It defines “Bangsamoro people” as the natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization, and their descendants whether
mixed or of full blood, including their spouses.
2. Thus, the concept of “Bangsamoro,” as defined in this strand of the MOA-AD,
includes not only “Moros” as traditionally understood even by Muslims, but all
indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that
the freedom of choice of indigenous peoples shall be respected. What this freedom
of choice consists in has not been specifically defined. The MOA-AD proceeds to
refer to the “Bangsamoro homeland,” the ownership of which is vested exclusively
in the Bangsamoro people by virtue of their prior rights of occupation. Both parties
to the MOA-AD acknowledge that ancestral domain does not form part of the public
domain.
3. Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for
clear-cut procedure for the recognition and delineation of ancestral domain, which
entails, among other things, the observance of the free and prior informed consent of
the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does
not grant the Executive Department or any government agency the power to
delineate and recognize an ancestral domain claim by mere agreement or
compromise.
4. Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all
 national offices to conduct consultations beforeany project or program critical to the The sovereign people may, if it so desired, go to the extent of giving up a portion of its own
environment and human ecology including those that may call for the eviction of a territory to the Moros for the sake of peace, for it can change the Constitution in any it wants,
particular group of people residing in such locality, is implemented therein. The so long as the change is not inconsistent with what, in international law, is known as Jus
MOA-AD is one peculiar program that unequivocally and unilaterally vests Cogens.
ownership of a vast territory to the Bangsamoro people, which could pervasively
and drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.

Additional notes on IL

Concerns have been raised that the MOA-AD would have given rise to a binding international
law obligation on the part of the Philippines to change its Constitution in conformity thereto,
on the ground that it may be considered either as a binding agreement under international law,
or a unilateral declaration of the Philippine government to the international community that it
would grant to the Bangsamoro people all the concessions therein stated. Neither ground finds
sufficient support in international law, however.

Similarly, that the MOA-AD would have been signed by representatives of States and
international organizations not parties to the Agreement would not have sufficed to vest in it a
binding character under international law. In another vein, concern has been raised that the
MOA-AD would amount to a unilateral declaration of the Philippine State, binding under
international law, that it would comply with all the stipulations stated therein, with the result
that it would have to amend its Constitution accordingly regardless of the true will of the
people.

The MOA-AD would not have amounted to a unilateral declaration on the part of the
Philippine State to the international community. The Philippine panel did not draft the same
with the clear intention of being bound thereby to the international community as a whole or to
any State, but only to the MILF. While there were States and international organizations
involved, one way or another, in the negotiation and projected signing of the MOA-AD, they
participated merely as witnesses or, in the case of Malaysia, as facilitator. As held in the Lom
Accord case, the mere fact that in addition to the parties to the conflict, the peace settlement is
signed by representatives of states and international organizations does not mean that the
agreement is internationalized so as to create obligations in international law.

Since the commitments in the MOA-AD were not addressed to States, not to give legal effect
to such commitments would not be detrimental to the security of international intercourse to
the trust and confidence essential in the relations among States.

The MOA-AD not being a document that can bind the Philippines under international law
notwithstanding, respondents almost consummated act of guaranteeing amendments to the
legal framework is, by itself, sufficient to constitute grave abuse of discretion. The grave
abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation
of a state within a state, but in their brazen willingness to guarantee that Congress and the
sovereign Filipino people would give their imprimatur to their solution. Upholding such
an act would amount to authorizing a usurpation of the constituent powers vested only in
Congress, a Constitutional Convention, or the people themselves through the process of
initiative, for the only way that the Executive can ensure the outcome of the amendment
process is through an undue influence or interference with that process.
 027 BAYAN MUNA V. ROMULO (CASTRO)
1 February 2011 | Velasco Jr., J. | RP-US Non Surrender Agreement
PETITIONER: Bayan Muna as represented by Rep. Satur Ocampo, Crispin
Beltran, and Liza Maza
RESPONDENTS: Alberto Romulo, in his capacity as Executive Secretary and
Blas Ople in his capacity as Secretarry of Foreign Affairs
SUMMARY: Bayan Muna through its representatives is assailing the validity of
the RP-US non surrender agreement because it was said that the said agreement
were just mere exchange of notes by the Ambassador of US and the DFA
secretary. Basically, the RP-US agreement talks about protection of Filipino and
American national from harassment suits. Petitioners are claiming that it is in
contravention to the existing international law principles, treaties, the Rome
statute and most importantly the constitution for it failed to undergo Senate
concurrence for ratification. The main issue is whether or not the agreement is
valid and the Supreme Court ruled on various issues but to sum it up it said that
the Agreement is valid as an Executive agreement which does not need
ratification and it does not violate principles of international law.
DOCTRINE: An exchange of notes falls into the category of inter-
governmental agreements, which is an internationally accepted form of
international agreement.
It is fairly clear from the foregoing disquisition that the Non-Surrender
Agreement itself, or as an integral instrument of acceptance thereof or as consent
to be bound is a recognized mode of concluding a legally binding international
written contract among nations.
FACTS:
1. Petitioner Bayan Muna is a duly registered party-list group established to
represent the marginalized sectors of society. Respondent Blas F. Ople, now
deceased, was the Secretary of Foreign Affairs during the period material to
this case. Respondent Alberto Romulo was impleaded in his capacity as
then Executive Secretary
2. [ROME STATUTE- INTERNATIONAL CRIMINAL COURT] The
Court take into consideration in this case the Rome statute which establishes
the International Criminal Court with the power to exercise its jurisdiction
over persons for the most serious crimes of international concern x x x and
shall be complementary to the national criminal jurisdictions. The serious
crimes adverted to cover those considered grave under international law,
such as genocide, crimes against humanity, war crimes, and crimes of
aggression.
3. On December 28, 2000, the RP, through Charge d Affaires Enrique A.
Manalo, signed the Rome Statute which, by its terms, is subject to
ratification, acceptance or approval by the signatory states.
4. As of the filing of the instant petition, only 92 out of the 139 signatory
countries appear to have completed the ratification, approval and
concurrence process. The Philippines is not among the 92.
5. [RP-US NON SURRENDER AGREEMENT] On May 9, 2003, then
Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-
surrender bilateral agreement between the USA and the Philippines.
6. Via exchange of notes, the Republic of the Philippines, represented then by
DFA Sec. Ople, agreed with and accepted the US proposals embodied in the
US Embassy note and agreed to put such in effect the Non-surrender
agreement.
7. Basically, the non-surrender agreement aims to protect what it refers and
defines as persons of US and PH from frivolous harassment suits that might
be brought against them in international tribunals. (Pertinent provisions 8are
8 1. For purposes of this Agreement, persons are current or former
Government officials, employees (including contractors), or military
personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not,
absent the express consent of the first Party,
(a) be surrendered or transferred by any means to any international
tribunal for any purpose, unless such tribunal has been established by
the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or
third country, or expelled to a third country, for the purpose of
surrender to or transfer to any international tribunal, unless such
tribunal has been established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a
person of the Philippines to a third country, the [US] will not agree to
the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government of
the Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a
person of the [USA] to a third country, the [GRP] will not agree to the
surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the
 in the footnotes)
8. In response to a query of then Solicitor General Alfredo L. Benipayo on the
status of the non-surrender agreement, Ambassador Ricciardone replied in
his letter of October 28, 2003 that the exchange of diplomatic notes
constituted a legally binding agreement under international law; and that,
under US law, the said agreement did not require the advice and consent of
the US Senate.
9. In response to a query of then Solicitor General Alfredo L. Benipayo on the
status of the non-surrender agreement, Ambassador Ricciardone replied in
his letter, that the exchange of diplomatic notes constituted a legally binding
agreement under international law; and that, under US law, the said
agreement did not require the advice and consent of the US Senate.
10. Bayan Muna then imputes that the government official committed grave
abse of discretion in concluding and ratifying the agreement and prays that
it be struck down as unconstitutional, or at least declared as without force
and effect
11. While the respondent officials question the standing of Bayan Muna being
in the nature of an executive agreement, which does not require senate
concurrence for its efficacy, thus the agreement is constitutional
12. Hence this petition
ISSUES:
• Whether or not the Agreement was contracted validly – Yes, it is
considered as a valid executive agreement
• Whether or not the agreement, which has not been submitted to senate
for concurrence, contravenes the Rome Statute and other traties – No
RULING: WHEREFORE, the petition for certiorari, mandamus and
prohibition is hereby DISMISSED for lack of merit. No costs SO ORDERED.
RATIO:
1. [ PETITIONERS HAVE LOCUS STANDI]: In the case at bar,
petitioners representatives have complied with the qualifying conditions or
specific requirements exacted under the locus standi rule. As citizens, their
UN Security Council, absent the express consent of the Government of
the [US].
5. This Agreement shall remain in force until one year after the date on
which one party notifies the other of its intent to terminate the
Agreement. The provisions of this Agreement shall continue to apply
with respect to any act occurring, or any allegation arising, before the
effective date of terminatio
interest in the subject matter of the petition is direct and personal. At the
very least, their assertions questioning the Agreement are made of a public
right, i.e., to ascertain that the Agreement did not go against established
national policies, practices, and obligations bearing on the States obligation
to the community of nations.
2. At any event, the primordial importance to Filipino citizens in general of the
issue at hand impels the Court to brush aside the procedural barrier posed
by the traditional requirement of locus standi, as we have done in a long line
of earlier cases
3. Indeed, where an action of any branch of government is seriously alleged to
have infringed the Constitution or is done with grave abuse of discretion, it
becomes not only the right but in fact the duty of the judiciary to settle it.
As in this petition, issues are precisely raised putting to the fore the
propriety of the Agreement pending the ratification of the Rome Statute.
4. [RP-US NON SURRENDER AGREEMENT VALID AS AN
EXECUTIVE AGREEMENT]: Petitioners’ contention perhaps taken
unaware of certain well-recognized international doctrines, practices, and
jargonsis untenable. One of these is the doctrine of incorporation, as
expressed in Section 2, Article II of the Constitution, wherein the
Philippines adopts the generally accepted principles of international law and
international jurisprudence as part of the law of the land and adheres to the
policy of peace, cooperation, and amity with all nations. An exchange of
notes falls into the category of inter-governmental agreements, which is
an internationally accepted form of international agreement.
5. In another perspective, the terms exchange of notes and executive
agreements have been used interchangeably, exchange of notes being
considered a form of executive agreement that becomes binding through
executive action. On the other hand, executive agreements concluded by the
President sometimes take the form of exchange of notes and at other times
that of more formal documents denominated agreements or protocols. It is
fairly clear from the foregoing disquisition that the Non-Surrender
Agreement itself, or as an integral instrument of acceptance thereof or
as consent to be bound is a recognized mode of concluding a legally
binding international written contract among nations.
6. [ SENATE CONCURRENCE NOT REQUIRED]: Article 2 of the
Vienna Convention on the Law of Treaties defines a treaty as an
international agreement concluded between states in written form and
 governed by international law, whether embodied in a single instrument or
in two or more related instruments and whatever its particular designation
International agreements may be in the form of :
a. treaties that require legislative concurrence after executive
ratification; or
b. executive agreements that are similar to treaties, except that
they do not require legislative concurrence and are usually less
formal and deal with a narrower range of subject matters than
treaties
7. Under international law, there is no difference between treaties and
executive agreements in terms of their binding effects on the contracting
states concerned, as long as the negotiating functionaries have remained
within their powers. Neither, on the domestic sphere, can one be held valid
if it violates the Constitution. Authorities are, however, agreed that one is
distinct from another for accepted reasons apart from the concurrence-
requirement aspect.
8. Petitioners were claiming that the Agreement partakes the nature of a treaty
hence needs Senate concurrence citing the case of Commissioner of
Customs v. Eastern Sea Treating claiming that when the subject involves
political issues or changes of national plicies then it should be treated as a
treaty and agreements of more or less temporary nature are executive
agreements only. The court is not persuaded.
9. There are no hard and fast rules on the propriety of entering, on a given
subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the form
of agreement is the parties intent and desire to craft an international
agreement in the form they so wish to further their respective interests.
Verily, the matter of form takes a back seat when it comes to effectiveness
and binding effect of the enforcement of a treaty or an executive agreement,
as the parties in either international agreement each labor under the pacta
sunt servanda. Hence the court reiterated that the agreement though without
concurrence of the Senate is valid binding
10. [AGREEMENT NOT IN CONTRAVENTION OF ROME
STATUTE ]: Contrary to petitioners pretense, the Agreement does not
contravene or undermine, nor does it differ from, the Rome Statute. Far
from going against each other, one complements the other. As a matter of
fact, the principle of complementarity underpins the creation of the ICC. As
aptly pointed out by respondents and admitted by petitioners, the
jurisdiction of the ICC is to be complementary to national criminal
jurisdictions [of the signatory states]9.
11. S ignificantly, the sixth preambular paragraph of the Rome Statute declares
that it is the duty of every State to exercise its criminal jurisdiction over
those responsible for international crimes. This provision indicates that
primary jurisdiction over the so-called international crimes rests, at the first
instance, with the state where the crime was committed; secondarily, with
the ICC in appropriate situations.
12. Of particular note is the application of the principle of ne bis in idem which
again underscores the primacy of the jurisdiction of a state vis-a-vis that of
the ICC. As far as relevant, the provision states that no person who has been
tried by another court for conduct x x x [constituting crimes within its
jurisdiction] shall be tried by the [International Criminal] Court with respect
to the same conduct x x x.
13. The foregoing provisions of the Rome Statute, taken collectively, argue
against the idea of jurisdictional conflict between the Philippines, as party
to the non-surrender agreement, and the ICC; or the idea of the Agreement
substantially impairing the value of the RPs undertaking under the Rome
Statute. Ignoring for a while the fact that the RP signed the Rome Statute
ahead of the Agreement, it is abundantly clear to us that the Rome Statute
expressly recognizes the primary jurisdiction of states, like the RP, over
serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when the
signatory states are unwilling or unable to prosecute.
14. Moreover, under international law, there is a considerable difference
between a State-Party and a signatory to a treaty. Under the Vienna
9 This provision of the Rome statute expressly shows that the
jurisdiction of ICC must be complementary to national jurisdiction: An
International Crimininal Court (the Court) is hereby established. It x x
x shall have the power to exercise its jurisdiction over persons for the
most serious crimes of international concern, as referred to in this
Statute, and shall be complementary to national criminal jurisdictions.
The jurisdiction and functioning of the Court shall be governed by the
provisions of this Statute
 Convention on the Law of Treaties, a signatory state is only obliged to
refrain from acts which would defeat the object and purpose of a
treaty; whereas a State-Party, on the other hand, is legally obliged to
follow all the provisions of a treaty in good faith.
15. In the instant case, it bears stressing that the Philippines is only a
signatory to the Rome Statute and not a State-Party for lack of
ratification by the Senate. Thus, it is only obliged to refrain from acts
which would defeat the object and purpose of the Rome Statute. Any
argument obliging the Philippines to follow any provision in the treaty
would be premature.
16. As a result, petitioners argument that State-Parties with non-surrender
agreements are prevented from meeting their obligations under the Rome
Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are
only legally binding upon State-Parties, not signatories.
17. Furthermore, a careful reading of said Art. 90 would show that the
Agreement is not incompatible with the Rome Statute. Specifically, Art.
90(4) provides that [i]f the requesting State is a State not Party to this
Statute the requested State, if it is not under an international obligation to
extradite the person to the requesting State, shall give priority to the request
for surrender from the Court. x x x In applying the provision, certain
undisputed facts should be pointed out: first, the US is neither a State-Party
nor a signatory to the Rome Statute; and second, there is an international
agreement between the US and the Philippines regarding extradition or
surrender of persons, i.e., the Agreement. Clearly, even assuming that the
Philippines is a State-Party, the Rome Statute still recognizes the primacy of
international agreements entered into between States, even when one of the
States is not a State-Party to the Rome Statute.
18. [SOVEREIGNTY LIMITED BY INTERNATIONAL
AGREEMENTS]: The Agreement is but a form of affirmance and
confirmance of the Philippines national criminal jurisdiction. National
criminal jurisdiction being primary, as explained, it is always the
responsibility and within the prerogative of the RP either to prosecute
criminal offenses equally covered by the Rome Statute or to accede to the
jurisdiction of the ICC. Thus, the Philippines may decide to try persons of
the US, as the term is understood in the Agreement, under our national
criminal justice system. Or it may opt not to exercise its criminal
jurisdiction over its erring citizens or over US persons committing high
crimes in the country and defer to the secondary criminal jurisdiction of the
ICC over them. As to persons of the US whom the Philippines refuses to
prosecute, the country would, in effect, accord discretion to the US to
exercise either its national criminal jurisdiction over the person concerned
or to give its consent to the referral of the matter to the ICC for trial. In the
same breath, the US must extend the same privilege to the Philippines with
respect to persons of the RP committing high crimes within US territorial
jurisdiction.
19. In the context of the Constitution, there can be no serious objection to the
Philippines agreeing to undertake the things set forth in the Agreement.
Surely, one State can agree to waive jurisdictionto the extent agreed uponto
subjects of another State due to the recognition of the principle of
extraterritorial immunity.
20. By their nature, treaties and international agreements actually have a
limiting effect on the otherwise encompassing and absolute nature of
sovereignty. By their voluntary act, nations may decide to surrender or
waive some aspects of their state power or agree to limit the exercise of
their otherwise exclusive and absolute jurisdiction. The usual underlying
consideration in this partial surrender may be the greater benefits derived
from a pact or a reciprocal undertaking of one contracting party to grant the
same privileges or immunities to the other.
21. [AGREEMENT NOT IMMORAL/ NOT A VARIANCE OF THE
PRINCIPLES OF INTERNATIONAL LAW] Suffice it to state in this
regard that the non-surrender agreement, as aptly described by the Solicitor
General, is an assertion by the Philippines of its desire to try and punish
crimes under its national law. x x x The agreement is a recognition of the
primacy and competence of the countrys judiciary to try offenses under its
national criminal laws and dispense justice fairly and judiciously.
22. [AGREEMENT NEED NOT BE IN FORM OF A TREATY] Petitioner
was not able to substantiate that the international agreement alters RA 9851
or the law the goes into the prosecution of foreign nationals or any
international law, Hence it need not be form of a treaty.
23. SC also emphasized that the International Criminal Court’s
jurisdiction or the Rome Statute is not a jus cogens or a compelling law
and the highest hierarchical postion among all the customary laws. It is
not indeed declaratory of customary international law.
24. DISCUSSION AS TO JUS COGENS: The term jus cogens means the
compelling law. Corollary, a jus cogens norm holds the highest hierarchical
position among all other customary norms and principles. As a result, jus
cogens norms are deemed peremptory and non-derogable. When applied to
international crimes, jus cogens crimes have been deemed so fundamental
to the existence of a just international legal order that states cannot derogate
from them, even by agreement.
 China Nationality Machinery v. Santamaria (CRuz)
February 7, 2012 | Sereno, J. | Treaty
PETITIONER: China Nationa Machiney & Equipment Corp. (Group)
RESPONDENTS: Hon. Cesar D. Santamaria, in his official capacity as Presding
Judge of Branch 145, RTC of Makati City, Herminio Harry L. Roque, Jr., Joel R.
Butuyan, Roger R. Rayel, Romel R. Bagares, Christopher Francisco C. Bolastig,
League of Urban Poor for Action (lupa) Kilusan ng maralita sa Meycauayan (KMM-
Lupa Chapter), Danilo M. Calderon, Vicente C. Alban, Merlyn M. Vaal, Lolita S.
Quinones, Ricardo D. Lanozo, Jr., Conchita G. Gozo, Ma, Teresa D. Zepeda,
Josefina A. Lanozo, and Sergio C. Legaspi, Jr., Kalipunan ng Damayang Mahihirap
(Kadamay), Edy Clerigo, Rammil Dingal, Nelson B. Terrado, Carmen Deunida, and
Eduardo Legson
SUMMARY: CNMEG entered into a Memorandum of Understanding with
Northrail for the conduct of a feasibility study on a possible railway line from Manila
to San Fernando, La Union (the Northrail Project). Thereafter, they executed a
Contract Agreement for the construction of Section I, Phase I of the North Luzon
Railway System from Caloocan to Malolos on a turnkey basis for USD 421,050,000.
Then, the Philippine government and EXIM Bank entered into a counterpart
financial agreement Buyer Credit Loan Agreement. The respondents filed complaint
with regard to the Contract Agreement and the Loan Agreement. The issue in the
case is WoN the Contract Agreement is an executive agreement, such that it
cannot be questioned by or before a local court. The SC ruled in the negative. The
1st and 3rd requisite to be considered an executive agreement. CNMEG is not a
government nor a government agency and the Contract Agreement is governmenrd
by the Philippine Law.
DOCTRINE: An executive agreement is similar to a treaty, except that the former (a)
does not require legislative concurrence; (b) is usually less formal; and (c) deals with a
narrower range of subject matters. Despite these differences, to be considered an
executive agreement, the following three requisites provided under the Vienna
Convention must nevertheless concur: (a) the agreement must be between states; (b) it
must be written; and (c) it must governed by international law.
FACTS:
28. On 14 September 2002, China National Machinery & Equipment Corp.
(Group) (CNMEG), represented by its chairperson, Ren Hongbin, entered
into a Memorandum of Understanding with the North Luzon Railways
Corporation (Northrail), represented by its president, Jose L. Cortes, Jr. for
the conduct of a feasibility study on a possible railway line from Manila to
San Fernando, La Union (the Northrail Project).
29. On 30 August 2003, the Export Import Bank of China (EXIM Bank) and
the Department of Finance of the Philippines (DOF) entered into a
Memorandum of Understanding (Aug 30 MOU), wherein:
1. China agreed to extend Preferential Buyers Credit to the Philippine
government to finance the Northrail Project. The Chinese
government designated EXIM Bank as the lender, while the
Philippine government named the DOF as the borrower.
2. EXIM Bank agreed to extend an amount not exceeding USD
400,000,000 in favor of the DOF, payable in 20 years, with a 5-
year grace period, and at the rate of 3% per annum
30. On 1 October 2003, the Chinese Ambassador to the Philippines, Wang
Chungui (Amb. Wang), informed DOF Secretary Jose Isidro Camacho (Sec.
Camacho) of CNMEGs designation as the Prime Contractor for the
Northrail Project.
31. On 30 December 2003, Northrail and CNMEG executed a Contract
Agreement for the construction of Section I, Phase I of the North Luzon
Railway System from Caloocan to Malolos on a turnkey basis (the Contract
Agreement) for USD 421,050,000.
32. On 26 February 2004, the Philippine government and EXIM Bank entered
into a counterpart financial agreement Buyer Credit Loan Agreement No.
BLA 04055 (the Loan Agreement).
1. EXIM Bank agreed to extend Preferential Buyers Credit in the
amount of USD 400,000,000 in favor of the Philippine government
for the construction of Phase I of the Northrail Project.
33. On 13 February 2006, respondents filed a Complaint for Annulment of
Contract and Injunction with Urgent Motion for Summary Hearing to
Determine the Existence of Facts and Circumstances Justifying the Issuance
of Writs of Preliminary Prohibitory and Mandatory Injunction and/or TRO
against CNMEG, the Office of the Executive Secretary, the DOF, the
Department of Budget and Management, the National Economic
Development Authority and Northrail.
1. In the Complaint, respondents alleged that the Contract Agreement
and the Loan Agreement were void for being contrary to
1. the Constitution;
2. Republic Act No. 9184 (R.A. No. 9184), otherwise
known as the Government Procurement Reform Act;
3. Presidential Decree No. 1445, otherwise known as the
Government Auditing Code; and
4. Executive Order No. 292, otherwise known as the
Administrative Code.
34. On 15 May 2007, RTC issued an Omnibus Order denying CNMEGs
Motion to Dismiss and setting the case for summary hearing to determine
whether the injunctive reliefs prayed for should be issued.
35. CNMEG then filed a Motion for Reconsideration, which was denied by the
trial court.
36. Thus, CNMEG filed before the CA a Petition for Certiorari with Prayer for
the Issuance of TRO and/or Writ of Preliminary Injunction to chich the CA
dismissed. Subsequently, CNMEG filed a Motion for
Reconsideration, which was denied by the CA.
37. Thus, CNMEG filed the instant Petition for Review on Certiorari
ISSUE/s:
11. WoN CNMEG is entitled to immunity, precluding it from being sued before
a local court - NO
 12. WoN the Contract Agreement is an executive agreement, such that it
cannot be questioned by or before a local court – NO not an executive
agreement. Thus, can be questioned before the lower court
RULING: WHEREFORE, the instant Petition is DENIED. Petitioner China National
Machinery & Equipment Corp. (Group) is not entitled to immunity from suit, and the
Contract Agreement is not an executive agreement. CNMEGs prayer for the issuance of
a TRO and/or Writ of Preliminary Injunction is DENIED for being moot and
academic. This case is REMANDED to the Regional Trial Court of Makati, Branch
145, for further proceedings as regards the validity of the contracts subject of Civil
Case No. 06-203.
No pronouncement on costs of suit.
SO ORDERED.
RATIO:
CNMEG is not entitled to immunity, precluding it from being sued before a
local court
1. The doctrine of sovereign immunity is explained in Holy See v. Rosario,:
There are two conflicting concepts of sovereign immunity, each widely held
and firmly established. According to the classical or absolute theory, a
sovereign cannot, without its consent, be made a respondent in the
courts of another sovereign. According to the newer or restrictive
theory, the immunity of the sovereign is recognized only with regard to
public acts or acts jure imperii of a state, but not with regard to private
acts or acts jure gestionis. (Emphasis supplied; citations omitted.)
2. In JUSMAG v. National Labor Relations Commission,
As it stands now, the application of the doctrine of immunity from suit has
been restricted to sovereign or governmental activities (jure imperii). The
mantle of state immunity cannot be extended to commercial, private and
proprietary acts (jure gestionis).
3. Since the Philippines adheres to the restrictive theory, it is crucial to ascertain
the legal nature of the act involved whether the entity claiming immunity
performs governmental, as opposed to proprietary, functions.
4. A thorough examination of the basic facts of the case would show that
CNMEG is engaged in a proprietary activity.
1. Piecing together the content and tenor of the Contract Agreement,
the Memorandum of Understanding dated 14 September 2002,
Amb. Wangs letter dated 1 October 2003, and the Loan Agreement
would reveal the desire of CNMEG to construct the Luzon
Railways in pursuit of a purely commercial activity performed in
the ordinary course of its business
2. The implementation of the Northrail Project was intended to
generate profit for CNMEG, with the Contract Agreement placing a
contract price of USD 421,050,000 for the venture.
3. The use of the term state corporation to refer to CNMEG was only
descriptive of its nature as a government-owned and/or -controlled
corporation, and its assignment as the Primary Contractor did not
imply that it was acting on behalf of China in the performance of
the latters sovereign functions. To imply otherwise would result in
an absurd situation, in which all Chinese corporations owned by
the state would be automatically considered as performing
governmental activities, even if they are clearly engaged in
commercial or proprietary pursuits.
The Contract Agreement is not an executive agreement
1. Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna
Convention) defines a treaty as follows:
[A]n international agreement concluded between States in
written form and governed by international law, whether embodied
in a single instrument or in two or more related instruments and
whatever its particular designation.
2. In Bayan Muna v. Romulo, this Court held that an executive agreement is
similar to a treaty, except that an executive agreement:
1. does not require legislative concurrence;
2. is usually less formal; and
3. deals with a narrower range of subject matters
3. Despite these differences, to be considered an executive agreement, the
following three requisites provided under the Vienna Convention must
nevertheless concur:
1. the agreement must be between states;
2. it must be written; and
3. it must governed by international law.
4. The first and the third requisites do not obtain in the case at bar
1. CNMEG is neither a government nor a government agency
1. The Contract Agreement was not concluded between
the Philippines and China, but between Northrail and
CNMEG. By the terms of the Contract Agreement,
Northrail is a government-owned or -controlled
corporation, while CNMEG is a corporation duly organized
and created under the laws of the Peoples Republic of
China. Thus, both Northrail and CNMEG entered into the
Contract Agreement as entities with personalities distinct
and separate from the Philippine and Chinese governments,
respectively
2. The Contract Agreement is to be governed by Philippine Law
1. The Contract Agreement explicitly provides that Philippine
law shall be applicable, the parties have effectively
conceded that their rights and obligations thereunder are
not governed by international law.
5. The Contract Agreement does not partake of the nature of an executive
agreement. It is merely an ordinary commercial contract that can be
questioned before the local courts.
 DEUTSCHE BANK v. CIR (KC)
August 28, 2013 | Sereno, CJ. | Pacta Sunt Servanda
PETITIONER: Deutsche Bank AG Manila Branch
RESPONDENTS: Commission of Internal Revenue
SUMMARY: Deutsche Bank AG Manila Branch paid 15% of the gross amount of
the profits it remitted to Deutsche Germany to the BIR. Claiming that it overpaid, it
filed with the BIR an administrative claim for refund and later a confirmation with
BIR-ITAD of its entitlement of 10% preferential tax under the RP-Germany Tax
Treaty. Due to the inaction of BIR, it filed a petition for review with the CTA. The
CTA 2nd Division ruled that Deutsche violated the 15-day period provided for RMO
No. 1-2000 and that it should have first filed with ITAD prior to the payment of of
its BPRT and remittance of its profits to Germany OR prior to its availment of the
preferential tax rate of 10% under the RP-Germany Tax Treaty. The CTA En Banc
affirmed this also citing the Mirant case which held that a prior ruling of ITAD must
be secured first before the availment of a preferential tax rate. On appeal to the
Supreme Court the high court ruled that first, the Mirant case is not a binding
precedent because it was a minute resolution. With respect to the same subject matter
and same issues concerning the same parties it constitutes res judicata but if other
parties or another subject matter (even with the same parties and same issues) is
involved, the minute resolution is not binding precendent. There are differences in
parties, taxes, taxable periods, and treaties involved. Furthermore, the generally
accepted principle of pacta sunt servanda provides the performance in good faith of
treaty obligations on the part of the states that enter into the agreement. Every treaty
in force is binding upon the parties, and the obligations under the treaty must be
performed by them in good faith. Tax treaties are drafted for the apparent rationale
for doing away with double taxation is to encourage the free flow of goods and
services and the movement of capital, technology and persons between countries,
conditions deemed vital in creating robust and dynamic economies. The period of
application for availment of tax treaty relief should not operate to divest entitlement
to the relief as it would constitute a violation of the duty required by good faith in
complying with a tax treaty.
(Note: if deins gets, nasa body yung tagalog explanations hehe)
DOCTRINE: The time-honored international principle of pacta sunt servanda
demands the performance in good faith of treaty obligations on the part of the states
that enter into the agreement. Tax treaties are entered into to reconcile the national
fiscal legislations of the contracting parties and in turn, help the taxpayer avoid
simultaneous taxations in two different jurisdictions. Thus, laws and issuances must
ensure that reliefs granted under tax treaties are accorded to the parties entitled
thereto.
ISSUE/s:
FACTS:
38. On 4 Oct 2005, Deutsche Bank AG Manila Branch (Deutsche) filed with
the BIR an administrative claim for refund/issuance of its tax credit
certificate because it believed it overpaid its branch profit remittance tax for
the year 2002 and prior taxable years.
1. According to Deutsche it paid 15% branch profit remittance tax
(BPRT) to BIR on its regular banking unit net income remitted to
Deutsche Bank Germany instead of the preferential tax rate of 10%
provided for by the RP-Germany Tax Treaty. (Note: Basically
nagbayad daw siya sa BIR 15% nung net income na kinikita ng branch
sa Manila instead of the 10% na provided ng treaty ng PH at
Germany.)
39. On the same date, it filed with BIR’s International Tax Affairs Division
(ITAD) a confirmation of its entitlement to the 10% preferential tax rate.
40. On 18 Oct 2005, alleging the inaction of the BIR in its administrative claim
(#1), it filed a petition for review with the CTA.
41. The 2nd Division of the CTA ruled that Deutsche indeed paid the 15%
BPRT for 2002 and prior taxable years. It was also found out that for the
year 2003, Deutsche remitted to Germany P330,175,961.88, which is the
net of 15% BPRT (Note: so 15% pa rin nung gross amount ng profits yung
binabayad niya sa BIR)
42. However, the CTA denied the application for the tax treaty relief because it
was not filed with ITAD prior to the payment of Deutsche of its BPRT and
remittance of its profits to Germany OR prior to its availment of the
preferential tax rate of 10% under the RP-Germany Tax Treaty. (Note: So
dapat daw nag-apply muna si Deutsche kay ITAD before siya nagbayad
nung BPRT at nagremit ng profit sa Germany or before siya nag-avail nung
10% preferential tax rate under the treaty)
43. CTA held that Deutsche violated Revenue Memorandum Order 1-2000
which provided for a 15 day period. (Note: Dapat daw nag-apply siya sa
ITAD for tax treaty relief 15 days before it paid the BPRT)
44. CTA relied on the Mirant case where the CTA En Banc ruled that ebfore
benefits of the tax treaty can be extended to a foreign corporation, it should
first invoke the provisions of the tax treaty and prove they are entitled.
45. The case was appealed to CTA En Banc. It affirmed the 2nd Division and
cited the case of Mirant once again, holding that a ruling from ITAD must
be secured first before the availment of a preferential tax rate. CTA En Banc
used the principle of stare decisis.
1. Comparison with the CBK Power Company v. CIR: In the CBK case
the ITAD issued a ruling even after it paid the taxes; in this case there
was no ruling from the ITAD that confirmed Deutsche right to the
preferential tax rate
46. Hence this appeal.
 13. WoN the failure to strictly comply with ROM No. 1-2000 will deprive
persons or coporations of the benefit of a tax treaty – NO, because an
administrative issuance cannot defeat our international obligations.
RULING: HEREFORE, premises considered, the instant Petition is GRANTED.
Accordingly, the Court of Tax Appeals En Banc Decision dated 29 May 2009 and
Resolution dated 1 July 2009 are REVERSED and SET ASIDE. A new one is hereby
entered ordering respondent Commissioner of Internal Revenue to refund or issue a
tax credit certificate in favor of petitioner Deutsche Bank AG Manila Branch the
amount of TWENTY TWO MILLION FIVE HUNDRED SIXTY TWO
THOUSAND EIGHT HUNDRED FIFTY ONE PESOS AND SEVENTEEN
CENTAVOS (PHP 22,562,851.17), Philippine currency, representing the
erroneously paid BPRT for 2002 and prior taxable years.
SO ORDERED.
RATIO:
47. Under paragraph 6, Article 10 of the RP-Germany Tax Treaty, where a
resident of Germany has a branch in the Philippines, this branch may be
subjected to the branch profits remittance tax withheld at source in
accordance with Philippine law but shall not exceed 10% of the gross
amount of the profits remitted by that branch to the head office.
48. By virtue of the treaty, we are bound to extend to Deutsche the benefit
of a preferential rate equivalent to 10% BPRT
49. However, the RMO requires that any availment of the tax treaty relief must
be preceded by an application with ITAD at least 15 days before the
transaction. The purpose was to streamline the process of the application of
tax treary relief and improve efficiency.
50. The filing of a tax treaty application with ITAD is not a condition
precedent to the availment of a preferential tax rate. Also, Mirant is not
a binding judicial precedent because it’s a minute resolution.
1. With respect to the same subject matter and same issues concerning
the same parties it constitutes res judicata but if other parties or
another subject matter (even with the same parties and same issues) is
involved, the minute resolution is not binding precendent. There are
differences in parties, taxes, taxable periods, and treaties involved.
51. The time-honored international principle of pacta sunt servanda demands
the performance in good faith of treaty obligations on the part of the states
that enter into the agreement. Every treaty in force is binding upon the
parties, and the obligations under the treaty must be performed by them in
good faith. Treaties have the force and effect of law in this jurisdiction.
52. Tax treaties are entered into to reconcile the national fiscal legislations of
the contracting parties and in turn, help the taxpayer avoid simultaneous
taxations in two different jurisdictions. Foreign investments will only thrive
in a fairly predictable and reasonable international investment climate and
the protection against double taxation is crucial in creating such climate.
53. Thus, laws and issuances must ensure that reliefs granted under tax treaties
are accorded to the parties entitled thereto.
54. However, note that there is nothing in the RMO which would indicate a
deprivation of entitlement to a tax treaty relief for failure to complay with
the 15-day period.
55. The period of application for availment of tax treaty relief should not
operate to divest entitlement to the relief as it would constitute a violation of
the duty required by good faith in complying with a tax treaty.
56. Noncompliance with tax treaties have negative implications on international
relations, and unduly discourages foreign investors.
57. Moreover, the principle of prior application with the ITAD is moot in
refund cases because the very basis of the claim is the erroneous or there is
excessive payment arising from non-availment of a tax treaty relief. (Note:
Kasi nga naman paano ka mag-apply eh nagkamali ka nga magbayad so
medj bobets for the 15-day rule to apply)
58. Also, the NIRC provides for remedy for tax recovery when there has been
an erroneous payment of tax. The outright denial of petitioner’s claim for
refund, on the sole ground failure to apply for tax treaty relief prior to
payment of BPRT would defeat Sec 229 of NIRC.
“[I]n any case, no such suit or proceeding shall be filed after the expiration
of two (2) years from the date of payment of the tax or penalty regardless of
any supervening cause that may arise after payment: Provided, however,
That the Commissioner may, even without a written claim therefor, refund
or credit any tax, where on the face of the return upon which payment was
made, such payment appears clearly to have been erroneously paid.”
59. A ruling of the ITAD would have confirmed that Deutsche was entitled to
the 10% preferential rate under the treaty. Likewise, both administrative and
judicial actions were filed within the two-year prescriptive period under the
Sec. 229 of the NIRC.
60. Therefore, it is proper to grant Deutsche a refund of the difference between
the P67,688.553.51 (15% BPRT) and P45,125,702.32 (10% BPRT), or a
total of P22,562,851.17
 Saguisag v. Executive Secretary(Dim)
January 16, 2016 | Chief Justice Sereno | Constitutionality of EDCA
PETITIONER: Rene Saguisag, et al.
RESPONDENTS: Executive Secretary Ochoa, et al.
SUMMARY: Petitioners are arguing that EDCA should have been in the form of a
treaty concurred in by the Senate, not an executive agreement. The Court
distinguished between treaties, which are formal documents that require ratification
with the approval of two-thirds of the Senate, and executive
agreements become binding through executive action without the need of a vote by
the Senate or by Congress. The SC basically ruled that the President may enter into
the EDCA as an executive agreement because it was necessary to implement the
existing provisions of the Visiting Forces Agreement and the Mutual Defense Treaty
between the Philippines and the United States. Hence, there was no need for a treaty
that required ratification.
DOCTRINE: The President may generally enter into executive agreements subject
to limitations defined by the Constitution and may be in furtherance of a treaty
already concurred in by the Senate.
FACTS:
1. The petitions before this Court question the constitutionality of the
Enhanced Defense Cooperation Agreement (EDCA) between the Republic
of the Philippines and the United States of America (U.S.).
2. EDCA authorizes the U.S. military forces to have access to and conduct
activities within certain "Agreed Locations" in the country. It was not
transmitted to the Senate on the executive's understanding that to do so was
no longer necessary.
3. Accordingly, in June 2014, the Department of Foreign Affairs (DFA) and
the U.S. Embassy exchanged diplomatic notes confirming the completion
of all necessary internal requirements for the agreement to enter into force
in the two countries.86
4. Petitioners allege that respondents committed grave abuse of discretion
amounting to lack or excess of jurisdiction when they entered into EDCA
with the U.S., claiming that the instrument violated multiple constitutional
provisions.
5. Two petitions for certiorari were thereafter filed before us assailing the
constitutionality of EDCA. They primarily argue that it should have been in
the form of a treaty concurred in by the Senate, not an executive agreement.
6. The main argument of the petitioners can be found in the Constitutional
provision at Article XVIII:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning Military
Bases, foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the other
contracting State.
ISSUES:
(1) Whether the President may enter into an executive agreement on foreign
military bases, troops, or facilities – Yes
(2) Whether the provisions under EDCA are consistent with the Constitution,
as well as with existing laws and treaties - Yes
RULING: WHEREFORE, the petitions are DISMISSED.
RATIO:
Authority of the President
1. The President carries the mandate of being the sole organ in the conduct of
foreign relations. Since every state has the capacity to interact with and
engage in relations with other sovereign states, it is but logical that every
state must vest in an agent the authority to represent its interests to those
other sovereign states.
2. The President is equipped with authority over the Armed Forces of the
Philippines (AFP), which is the protector of the people and the state. The
AFP's role is to secure the sovereignty of the State and the integrity of the
national territory. In addition, the Executive is constitutionally empowered
to maintain peace and order; protect life, liberty, and property; and promote
the general welfare.
3. Clearly, the power to defend the State and to act as its representative in the
international sphere inheres in the person of the President. This power,
however, does not crystallize into absolute discretion to craft whatever
instrument the Chief Executive so desires.
4. The Senate has a role in ensuring that treaties or international agreements
the President enters into, as contemplated in Section 21 of Article VII of the
Constitution, obtain the approval of 2/3 of its members.
The President may generally enter into executive agreements subject to
limitations defined by the Constitution and may be in furtherance of a treaty
already concurred in by the Senate.
5. As the sole organ of our foreign relations, and the constitutionally assigned
chief architect of our foreign policy, the President is vested with the
exclusive power to conduct and manage the country's interface with other
states and governments.
6. Treaties are formal documents which require ratification with the
approval of two-thirds of the Senate. Executive
agreements become binding through executive action without the need
of a vote by the Senate or by Congress. (Eastern Sea Trading, 1961)
7. This constitution, drawing from the inherent power of the President, allows
 the Chief Executive to enter into agreements with other states, including the
prerogative to conclude binding executive agreements that do not require
further Senate concurrence.
President had a choice of entering into a treaty or a executive agreement
8. Section 25, Article XVIII of the Constitution, contains stringent
requirements that must be fulfilled by the international agreement allowing
the presence of foreign military bases, troops, or facilities in the Philippines:
(a) the agreement must be in the form of a treaty, and (b) it must be duly
concurred in by the Senate.
9. If the agreement is not covered by the above situation, then the President
may choose the form of the agreement (i.e., either an executive agreement
or a treaty), provided that the agreement dealing with foreign military bases,
troops, or facilities is not the principal agreement that first allows their entry
or presence in the Philippines.
10. The executive agreement must not go beyond the parameters, limitations,
and standards set by the law and/or treaty that the former purports to
implement; and must not unduly expand the international obligation
expressly mentioned or necessarily implied in the law or treaty. (Which is
the Visiting Forces Agreement and Mutual Defense Treaty)
11. EDCA seeks to be an instrument that enumerates the Philippine-approved
activities of U.S. personnel referred to in the VFA. (So President had a
legal basis for entering into a executive agreement to create the sort of
implementing rules of the VFA)
----------------------------------------------------------------------------------------
SEPARATE OPINIONS
Brion J., dissenting:
1. If the EDCA introduces foreign military bases, troops, or facilities in the
Philippines within the contemplation of Article XVIII, Section 25 of the
1987 Constitution, and if these obligations are different from those found in
our existing treaty obligations with the U.S., then the EDCA cannot be
enforced in the Philippines without the Senate's
concurrence. The ponencia is then incorrect and the Dissent must prevail.
2. Conversely, if the EDCA merely implements present treaty obligations -
particularly those under the 1951 MDT and the 1998 VFA - then the
President was well within his powers in the execution of our present treaty
obligations. The ponencia is correct and the Dissent therefore fails.
3. In short, he EDCA does not implement the 1998 VFA as the EDCA in fact
provides a wider arrangement than the 1998 VFA with respect to tfle entry
of military bases, troops, and facilities into the Philippines. A naughty view
is that the 1998 VFA should form part of the EDCA and not the other way
around. Another reality, based on the treaty-executive agreement
distinctions discussed above, is that the EDCA introduces new
arrangements and obligations to those existing under the 1998
VFA; hence, the EDCA should be in the form of a treaty.
Leonen J., dissenting:
1. I vote to PARTIALLY GRANT the Petitions and to DECLARE the
Enhanced Defense Cooperation Agreement (EDCA) between the Republic
of the Philippines and the United States of America as a formal and official
memorial of the results of the negotiations concerning the allowance of
United States military bases, troops, or facilities in the Philippines, which
is NOT EFFECTIVE until it complies with the requisites of Article XVIII,
Section 25 of the 1987 Philippine Constitution,
2. These are: that the agreement must be in the form of a treaty; that the treaty
must be duly concurred in by the Philippine Senate and, when so required
by Congress, ratified by a majority of votes cast by the people in a national
referendum; and that the agreement is either (a) recognized as a treaty or (b)
accepted or acknowledged as a treaty by the United States before it becomes
valid, binding, and effective.
Carpio, J., separate concurring:
1. In summary, the EDCA is absolutely necessary and essential to implement
the purpose of the MDT, which on the part of the Philippines, given the
existing situation in the West Philippine Sea, is to deter or repel any armed
attack on Philippine territory or on any Philippine public vessel or aircraft
operating in the West Philippine Sea. To hold that the EDCA cannot take
effect without Senate ratification is to render the MDT, our sole mutual self-
defense treaty, totally inutile to meet the grave, even existentialist, national
security threat that the Philippines is now facing in the West Philippine Sea.
-------------------------------------------------------------------------------------------
MOTION FOR RECONSIDERATION
1. Basically, the petitioners disagreed with the reasoning of the Court that the
EDCA was the implementation of the VFA.
2. In this MR, the Court just talked about the threat of China with their nine-
dash line threatening to steal all our exclusive economic zone waters.
3. Thus, we find no reason for EDCA to be declared unconstitutional. It fully
conforms to the Philippines' legal regime through the MDT and VFA. It
also fully conforms to the government's continued policy to enhance our
military capability in the face of various military and humanitarian issues
that may arise. This Motion for Reconsideration has not raised any
additional legal arguments that warrant revisiting the Decision.
 GENERAL PRINCIPLES
INTERNATIONAL STATUS OF SOUTH WEST AFRICA (ELLA)
July 11, 1950 | Opinion of Sir Arnold McNair | Principles of Private, Municipal law
can be brought into International Law.
PETITIONER: Union Government of South Africa
RESPONDENTS: United Nations
SUMMARY: After the end of WWII, the Union Gov’t of South Africa is seeking
to integrate South-West Africa after the dissolution of the League (w/c was
responsible for the administration of the SW Africa). Accdg to the Union, the
dissolution of the League brought with it the extinguishment of all international
legal rights and obligation under the Mandates System. Hence, the Union would
then be free to regulate the status of South-West Africa as a domestic matter. UN
General Assembly (UN GA) asked the International Court of Justice (ICJ) to advise
on the international status of SW Africa. ICJ said that SW Africa cannot be
integrated with the Union. SW Africa’s administration is under the UN, not the
Union Gov’t of South Africa. The dissolution of the League of Nations and its
supervisory machinery had not entailed the lapse of the Mandate, and that the
mandatory power was still under an obligation to give an account of its
administration to UN.
McNair, in his opinion, explained that it is akin to a “Trust System” and it would
be in violation of the trust to absorb SW into South Africa. The Mandatory created
a status for SW Africa. This status –valid in rem – gives the element of permanence
which would enable the legal condition of SW to survive the disappearance of the
League. This is still true even if there were no surviving personal obligation bet.
The Union and former members of the League. Hence, the dissolution of the
League did not transfer its functions to the United Nations with regard to the
administration of the territory. The continuing international obligations of the
Union of South Africa under the Mandate for SW do not include the obligation to
accept the administrative supervision of UN.
DOCTRINE: This Anglo-American Trust is akin to the Mandates System -
trustees are vested with the property and its management in order that the public or
some class of the public may derive benefit or that some public purpose may be
served. It would be in violation of the trust to absorb South West Africa into South
Africa. International status created for South-West Africa subsists. Although there
is no longer any League to supervise the exercise of the Mandate, it would be an
error to think that there is no control over the Mandatory
FACTS:
1. After WWII, the Union of South Africa (Union), alleging that the Mandate it
had been given by the League of Nations (League) to administer South West
Africa (Territory) had lapsed, sought the recognition of the United Nations to
the integration of the Territory in the Union.
2. The UN General Assembly (UN GA) asked the International Court of Justice
(ICJ) to advise on the international status of South West Africa (now
Namibia). The Court was asked to determine the meaning of the “sacred trust
of civilization” accepted by South Africa under the Mandate.
3. The solution submitted by the Union to its problem is that the “dissolution
of the League had the effect of extinguishing all international legal rights
and obligation under the Mandates System. Hence, the Union would then be
free to regulate the status of South-West Africa as a domestic matter.
(Basically they wanted to integrate South-West Africa into the Union bec.
of the dissolution of the League).
4. In the Advisory Opinion given on July 11, 1950, the court held that the
dissolution of the League of Nations and its supervisory machinery had not
entailed the lapse of the Mandate, and that the mandatory Power was still
under an obligation to give an account of its administration to the United
Nations (UN).
5. In his separate opinion, Sir Arnold McNair (an ICJ Judge & later the
first president of the European Court of Human Rights) said that he cannot
accept the solution given by the Union. To him, the Mandate is a more
durable and a more complex institution than the Union’s solution suggests.
ISSUE/s:
1. What is the status of the relationship between South West Africa and South
Africa?
RULING: South West Africa is a territory under the Mandate (UN) and South
Africa is not competent to modify the international status of South West
Africa. It would be in violation of the trust to absorb South West Africa into
South Africa.
RATIO:
1. McNair has 3 reasons: 1) The legal nature of the Mandates System; 2)
Objective character of Art. 22 of the Covenant of the League of Nations
(Covenant); and 3) Terms of the Mandate for South-West Africa and their
legal nature.
2. He concluded by laying out the effects of the dissolution of the League that
when the functions of the League ended, it did not transfer them to the
United Nations. No legal ground to conclude that UN replaced the Council
of the League for the purposes of exercising the administrative supervision
of the Mandate.

3. Hence, the continuing international obligations of the Union of South
Africa under the Mandate for South-West Africa do not include the
obligation to accept the administrative supervision of UN. This is
demonstrative of the process by which principles of private, municipal law
can be brought into international law.
I. LEGAL NATURE OF THE MANDATES SYSTEM
1. Article 38(I)(c) of the Statute of the Court allows the Court to apply “the
general principles of law recognized by civilized nations.” This is done by
regarding any features or terminology which are reminiscent of the rules
and institutions of private law as an indication of policy and principles
rather than as directly importing these rules and institutions.
2. Sacred Trust of Civilization: Principle that the well-being and
development of such peoples (those in certain territories w/c are inhabited
by people not yet able to stand by themselves under the strenuous
conditions of the modern world) form a sacred trust of civilization and that
the securities for the performance of his trust should be embodies in this
Covenant.
3. The Court interpreted this Sacred Trust of Civilization through the historical
basis of the “Anglo-American Trust” – that nearly every legal system
possesses some institution whereby the property (and sometimes persons) of
those who are not sui juris e.g. minor or a lunatic, can be entrusted to some
responsible peron as a trustee.
4. This Anglo-American Trust is akin to the Mandates System10 - trustees
are vested with the property and its management in order that the public or
some class of the public may derive benefit or that some public purpose
may be served. The trust have been frequently used to protect the weak and
the dependent in cases where there is “where there is great might on the one
side and unmight on the other”.
5. 3 GENERAL PRINCIPLES COMMON TO ALL INSTITUTIONS OF
“TRUST”: (w/c are also gen. principles of private law)
1) The control of the trustee over the property is limited in one way
or another; he is not in the position of the normal complete owner,
who can do what he likes with his own, as he is precluded from
administering the property for his own personal benefit;
2) The trustee is under some kind of legal obligation, based on
confidence and conscience, to carry out the trust or mission
10 League = Mandator ; Union = Mandatory (a kind of int’l. trustee); again, Union argues that
w/ the dissolution of the League, the mandate cease to exist i.e. the relationship cannot
subsist w/o a mandatory and a mandatory.
confided to him for the benefit of some other person or for some
public purposes; and
3) Any attempt by one of these persons to absorb the property
entrusted to him into his own patrimony would be illegal and
would be prevented by the law.
6. McNair said that the Mandates System is a new institution; a new species
of international government. The doctrine of sovereignty has no
application to this new system. Sovereignty over a mandated territory is
inactive. What matters in considering this new institution is “What are
the rights & duties of the Mandatory is regard to the area of territory
administered by it?” The answer to this depends on the int’l. agreements
creating the system and the rules of law w/c they attract. Its essence is that
the Mandatory acquires only a limited title to the territory entrusted to
it, and the measure of its powers is what’s necessary for the purpose of
carrying out its mandate.
7. South-West Africa is transferred to the people of the Union in the same
way as a trustee is in possession of the prop. or a guardian of the prop.
of his ward. The Union/Trustee has the administration & control of the
property, but the property has to be administered in the interests of South-
West Africa/Ward.
8. Hence, Mandatory is a kind of International Trustee. It receives the
territory subject to the provisions of the Mandate w/c limit the exercise of
the governmental powers of the mandatory. The intention was to achieve
a transfer of a territory without making that territory a possession of
the mandatory in the ordinary sense. A Mandated Territory is not a
possession of a power in the ordinary sense.
II. OBJECTIVE CHARACTER OF ART. 2211, COVENANT OF
THE LEAGUE OF NATIONS
1. From time to time, a group of great Powers, or a large number of States
both great and small, assume a power to create by a multipartite treaty some
new international regime or status, which soon acquires a degree of
acceptance and durability extending beyond the limits of the actual
contracting parties, and giving it an objective existence. This power is used
when some public interest is involved, and its exercisc often occurs in the
course of the peace settlemçnt at the end of a great war.
2. Inferring from this, the League of Nations came about. The occasion was
the end of a world war. The parties to the treaties of peace incorporating the
11 “The principle that the well-being and development of such peoples form a sacred trust of
civilization and that securities for the performance of this trust should be embodied in the
Covenant".
 Covenant of the League and establishing the system. The public interest
extended far beyond Europe. A large part of the world concurred in opening
a new chapter in the life of between 15-20 millions of people, and this
article was the instrument adopted to give effect to their desire.
3. McNair said that the new regime (the League) established in pursuance of
this, has more than a purely contractual basis, and the territories subjected
to it are impressed with a special legal status, designed to last until modified
in the manner indicated by Article 22.
III. THE TERMS OF THE MANDATE FOR SOUTH-WEST
AFRICA AND THEIR LEGAL NATURE
1. Art. 22 of the Covenant says that the League will define “the degree of
authority, control, or administration to be exercised by the Mandatory”. The
Covenant also lays out that together with the power the Mandatory has over
the territory, it shall also promote the utmost material & moral well-being,
& the social progress of the inhabitants subject to the present Mandate.
2. McNair said that this is not the language of sovereignty. It indicates some
new relationship bet. The State and the territory for which is responsible
for. However, this does not mean that Territory is a part of the Union of
South Africa.
3. The Mandate transferred to the Mandatory certain rights of possession
& gov’t (administrative & legislative) w/c are valid in rem / against the
whole world, or at any rate against every State which was a Member of the
League or in any other way recognized the Mandate.
2. International status created for South-West Africa subsists. Although
there is no longer any League to supervise the exercise of the Mandate, it
would be an error to think that there is no control over the Mandatory.
3. Every State w/c was a Member of the League at the time of its
dissolution still has a legal intereset over the proper exercise of the
Mandate.
4. 2 Kinds of Machinery for its supervision: JUDUCIAL &
ADMINISTRATIVE
5. Judicial Supervision: ICJ, Security Council of the UN, General Assembly
of the UN.
• ICJ - Whenever a treaty or convention in force provides for
reference of a matter to a tribunal
• Security Council of the UN – makes recommendations or decide
upon measures to be taken to give effect to the judgment" of the
Court, in the event of a party to a case failing to carry out a judgment
of the Court.
• General Assembly of the UN – may request the Court to give an
advisory opinion on any legal question.
6. Administrative Supervision: has lapsed bec. The League and its Council
& Permanent Mandates Commission no longer exist. Thus, impossible to
perform this obligation.

4. Thus, Mandatory created a status for South-West Africa. This fact is

important in assessing the effect of the dissolution of the League. This
status – which is valid in rem – gives the element of permanence which
woulod enable the legal condition of the Territory to survive the
disappearance of the League. This is still true even if there were no
surviving personal obligation bet. The Union and former members of the
League.

5. "Real" rights created by an international agreement have a greater degree of

permanence than personal rights, because these rights acquire an objective
existence which is more resistant than are persona1 rights to the dislocating
effects of international events.

IV. EFFECTS OF THE DISSOLUTION OF THE LEAGUE

1. The dissolution of the League on April 19, 1946, did not automatically
terminate the Mandates. The Mandate for South-West Africa was never
formally terminated. McNair said that there are no events which can be said
to have brought about its termination by implication.
CASE RELATING TO THE DIVERSION OF THE WATER FROM MEUSE
(NOT ASSIGNED TO ANYONE BUT FOUND THIS CASE SUMMARY)
(Series A/B No 70 - Series C No 8I)
Judgment of June 28th, 1937
PARTIES
The Netherlands- Belgium.
DOCUMENT INSTITUTING PROCEEDINGS
Application of the Netherlands' Government, filed with the Registry on August 1st,
1936, based on Article 36, paragraph 2 of the Statute.
AGENTS AND COUNSEL
MM. Telders (Netherlands), de Ruelle, Delmer, Marcq (Belgium).
COMPOSITION OF THE COURT
M. Guerrero, President; Sir Cecil Hurst, Vice-President; Count Rostworowski, MM.
Fromageot, de Bustamante, Altamira, Anzilotti, Negulesco, Jonkheer van Eysinga,
MM. Nagaoka, Cheng, Hudson, De Visscher, Judges.
The judgment was given by ten votes to three.
POINTS OF LAW
Interpretation of treaties (clear text; treaty as a whole, purpose, intention of the
Parties, priority of object and intent over literal meaning) - Law applicable (lex
specialis derogat generali) - Treaties (effects, equality of the Parties; obligation to
implement; control of implementation) -General principles of
law (equity; inadimplenti non est adimplendum) -Equity - Counter-claim - Damages
- Judicial inspection.
Facts
On May l2th, 1863, Belgium and the Netherlands concluded a Treaty the purpose of
which was "to settle permanently and definitively the regime governing diversions of
water from the Meuse for the feeding of navigation canals and irrigation
channels.(1) Article I of this Treaty provided for the construction below Maestricht, in
Netherlands territory, of a new intake which would constitute "the feeding conduit
for all canals situated below that town and for irrigation in the Campine and in the
Netherlands.(2)
The Belgian Government accepted the Treaty not without reluctance, in view of the
fact that it provided for only one intake and that to be situated in foreign territory.
When the economic development of the Belgian and Netherlands provinces of
Limburg necessitated the enlargement of certain canals and the construction of new
works, the two States signed in 1925 a new agreement designed to settle the
differences which had arisen in respect of the construction programmes. After the
rejection of this agreement by the Netherlands First Chamber, the Netherlands
proceeded to construct and complete the Juliana Canal, the Bosscheveld Lock and
the Borgharen barrage. On its part, Belgium began the construction of the Albert
Canal, unfinished at the time of the judgment, a barrage at Monsin and a lock at
Neerhaeren.
As no further progress could be made in the settlement of the points at issue between
the two States, the Netherlands initiated proceedings in the Court by means of a
unilateral application, based on the declarations made by both the Netherlands and
Belgium in which they accepted the compulsory jurisdiction of the Court under
Article 36 (a) of the Statute. Belgium, on its part, made a counter-claim.
In the course of the proceedings and at the suggestion of the Belgian Agent, which
the Netherlands Agent did not oppose, the Court visited the locality in order to see
on the spot the installations, canals and waterways to which the dispute related and to
witness practical demonstrations of the operations of locks and installations
connected therewith.
Submissions of the Parties
The Netherlands ask the Court in the main to adjudge and declare that the works
already carried out by Belgium were contrary to the Treaty of 1863, that the
proposed works would be contrary to it and, consequently, to "order Belgium a) to
discontinue all the works" listed in the Netherlands' submissions and "to restore to a
condition consistent with the Treaty of 1863 all works constructed in breach of that
Treaty; b) to discontinue any feeding held to be contrary to the said Treaty and to
refrain from any further such feeding.(3)
On its part, Belgium asks the Court to declare the Netherlands' submissions ill-
founded, as well as to adjudge and declare, in respect of the counter-claim, that the
Borgharen barrage was constructed in breach of the stipulations of the Treaty of
1863, that the Juliana Canal is subject to the provisions of the Treaty and, finally, to
reserve the rights accruing to Belgium from the breaches so committed.
Summary of the Judgment
Since the questions at issue are governed by the Treaty of 1863, the Court at the
outset discards the application to the dispute of the general rules of international river
law in favour of the interpretation and application of the Treaty.
The Netherlands maintain that Article I of the Treaty,(4) which provides for a single
feeder, situated in Netherlands territory, gives them the right to supervise and control
all the intakes, situated not only in their own territory, but also in Belgian territory.
This contention necessarily implies that "the Treaty of 1863 intended to place the
Parties in a situation of legal inequality by conferring on the Nether-lands a right of
control to which Belgium could not lay claim.(5) But, in order to allow the existence
of such inequality between the Parties to a treaty freely concluded, the text of the
treaty must say so in precise terms. In the absence of such terms, the Court rejects
the Netherlands' submission.
While criticizing the construction by Belgium of the Neerhaeren Lock, the
Netherlands do not invoke a specific provision of the Treaty. The Court grants that
the Treaty has brought into existence a certain régime which results from all its
provisions taken together and that, accordingly, it forms a complete whole, the
different provisions of which cannot be dissociated from the others and considered in
isolation. This is equally the case with Article I which must be interpreted together
with the other Articles. In the light of this Article, thus interpreted, neither the
Netherlands' contention regarding the Neerhaeren Lock, nor the Belgian reply, can
be accepted in its entirety. Furthermore, the Court, after mentioning the construction
by the Netherlands of the Bosscheveld Lock, refuses to admit the Netherlands'
complaint about the construction and operation of a lock of which they themselves
set an example in the past.
With regard to the supply by Belgium to a section of the Albert Canal of water taken
from the Meuse elsewhere than at Maestricht, the Court considers that the origin of
the water is irrelevant. Nothing prevents either Belgium or the Netherlands from
making such use as they may see fit of the canals covered by the Treaty, when the
canals do not leave their own territory. Each of the two States is at liberty in its own
territory to modify such canals, to enlarge them, to trans-form them, to fill them in
and even to increase the volume of water in them, provided that the diversion of
water at the feeder mentioned in the Treaty and the volume of water to be discharged
therefrom is not affected. The same reasoning applies to the Netherlands' criticism of
the proposed supply by Belgium to a section of another canal of water taken from the
Meuse elsewhere than at Maestricht.
Having thus rejected all the Netherlands' submissions, the Court proceeds to deal
with the Belgian counter-claims, the first of which concerns the Borgharen barrage.
The Court finds that the Treaty does not forbid the Netherlands from altering the
depth of water in the Meuse at Maestricht without the consent of Belgium, provided
that neither the discharge of water through the feeder, nor the volume of water which
it must supply, nor the current in the Zuid-Willemsvaart is thereby affected. It is
subject to this condition, and not at their arbitrary discretion, that the Netherlands are
entitled, under the Treaty, to dispose of the waters of the Meuse at Maestricht. With
regard to the alleged interference, by the criticized construction, with the navigability
of that part of the Meuse common to both States, the Court considers that Belgium
has not produced any proof of it. In reply to the second Belgian submission, which
relates to the Juliana Canal, the Court finds that the Treaty was designed to regulate
the supply of water to the canals situated on the left bank of the Meuse only. Thus,
canals situated on the right bank, such as the Juliana Canal, do not come under the
regime of water supply provided for by the Treaty.
For these reasons, the Court rejects both the Netherlands' submissions and the
submissions contained in the Belgian counter-claim.
Declaration of M. De visscher
M. De Visscher declares that he is unable to concur in the findings of the Court with
regard to the Belgian counter-claim.
Dissenting Opinion of Sir Cecil Hurst
Sir Cecil Hurst criticizes the rejection by the Court of the Belgian counter-claim.
From the purpose of the Treaty and the intention of its framers, he draws the
conclusion that the quantity of water permitted to be taken from the Meuse depended
on a minimum depth of water in the river below Maestricht. This minimum depth of
water was to safeguard navigation between Maestricht and Venlo. The construction
by the Netherlands of the Borgharen barrage has altered this state of things, thus
rendering inapplicable a provision of the Treaty.
With regard to the Juliana Canal, the Court has considered that the Treaty of 1863
applied only to withdrawals of water on the left bank of the Meuse. According to Sir
Cecil, it is not because in 1863 there was no canal on the right bank that the intention
of the Treaty was not to apply the prohibition contained in Article I to a canal
situated on the right bank. If in 1863 navigation on the river below Maestricht was
important, and if the purpose of the Treaty was to regulate withdrawals of water with
the view to maintain a certain depth of water, the intention could not have been to
restrict the effect of the Treaty to the left bank. The clear terms of the Treaty ("pour
tous les canaux situés en aval de cette ville") are broad enough to cover canals on the
right bank.
Dissenting Opinion of M. Altamira
An interpretation of the Treaty of 1863, different from that taken by the Court, leads
M. Altamira to dissent from the judgment with respect to the Neerhaeren Lock.
M. Altamira admits that the obligations contained in the Treaty are "somewhat
restrictive," having regard to circumstances which have developed since 1863. But
this is not a question for the Court. The Treaty must be observed as it stands, as long
as it remains in force. It cannot be adapted to circumstances. Should the latter prove
to be of a compelling nature, they would have to be provided for by another legal
instrument.
Dissenting Opinion of M. Anzilotti
M. Anzilotti is unable to agree with the rejection by the Court of the Netherlands'
submission relating to the Neerhaeren Lock and the Belgian submission concerning
the Borgharen barrage.
In a suit the main object of which is the interpretation of a Treaty by reference to
certain concrete facts, and in which each of the Parties presented submissions based
on a different interpretation, the Court should not have confined itself to a mere
rejection of the submissions of the Applicant without at the same time expressing its
opinion on those of the Respondent; in any ease, it should have declared whet it
considered to be the correct interpretation of the Treaty.
In order to determine whether the construction of the Neerhaeren Lock was or was
not in violation of Article I of the Treaty, M. Anzilotti proceeds to interpret this
Article. He considers that the object and intent of the Treaty must be given priority
over its text; "it is always dangerous to be guided by the literal sense of the words
before one is clear as to the object and intent of the Treaty; for it is only in this
Treaty, and with reference to this Treaty, that these words - which have no value
except in so far as they express the intention of the Parties - assume their true
significance.(6)
The fundamental object of the Treaty is to allow the withdrawal from the Meuse of a
certain quantity of water, fixed with reference to the level of the river. Another
object is to establish a regime for the Meuse capable of maintaining and improving
its navigability in spite of the quantity of water which would be extracted from the
river.
In the light of these objects, the purpose of Article I cannot be to exclude other
feeders. Its object is rather to exclude the supply of water to the canals by water
withdrawn elsewhere than at the feeder provided for in the Treaty. Consequently, the
functioning of the Neerhaeren Lock, which discharges into a canal water diverted at
Monsin in excess of the quantity laid down in the Treaty, is contrary to the Treaty.
With regard to the alternative submission of Belgium, claiming that "by constructing
certain works contrary to the terms of the Treaty, the Applicant has forfeited the right
to invoke the Treaty against the Respondent,(7) M. Anzilotti is "convinced that the
principle underlying this submission (inadimplenti non est adimplendum) is so just,
so equitable, so universally recognized, that it must be applied in international
relations also. In any case, it is one of these 'general principles of law recognized by
civilized nations' which the Court applies in virtue of Article 38 of its Statute.(8)
Still applying the same interpretation of the Treaty of 1863, M. Anzilotti concludes
that the barrage at Borgharen is equally contrary to this Treaty. It remains to be seen
whether the fact that Belgium has not suffered any injury as a result of it can defeat
the Belgian claim. According to M. Anzilotti, the existence of an injury would be
relevant if Belgium had made a claim for damages, but not when it simply asks for
the interpretation of the Treaty. The circumstances might have changed since 1863
but the Treaty is still in force and none of the Parties to it is entitled to prevent its
execution without the consent of the other Party.
Separate Opinion of Jonkheer Van Eysinga
The dispute submitted to the Court is solely concerned with the interpretation of the
Treaty of 1863. This Treaty derogates from the normal state of affairs, according to
which the discharge of an international river belongs to that river. The compromise
established by the Treaty consists in the withdrawal of large quantities of water from
the Meuse for the benefit of Belgium, on the one hand, and the measures to offset the
undesirable consequences of that withdrawal, on the other hand.
With regard to the control of such an arrangement, Jonkheer van Eysinga does not
admit an alleged unilateral right on the part of the Netherlands, for the right of
control "is mutual wherever the convention is mutual.(9) However, the Netherlands
have never claimed for this right of control a scope as wide as that attributed to it by
the Belgian argument.
Turning to the specific contentions of the Parties, Jonkheer van Eysinga considers as
justified the Netherlands' submissions to the effect that the works already carried out
by Belgium are not in conformity with the Treaty. He takes a more qualified attitude
towards the Netherlands' submissions concerning the Belgian works in course of
completion.
With regard to the Belgian counter-claim, he is of opinion that by establishing the
barrage at Borgharen the Netherlands have certainly not violated the Treaty and that
the Juliana Canal is situated outside the territorial ambit of the Treaty.
Individual Opinion of Hudson
While he concurs in the judgment of the Court, Mr. Hudson considers that there is
room to apply here the principle of equity. "A sharp division between law and equity,
such as prevails in the administration of justice in some States, should find no place
in international jurisprudence.(10) The question here is of a general principle of law
re-cognized by civilized nations in the sense of Article 38 of the Statute, and the
Court's recognition of equity as part of international law is in no way restricted by
the special power conferred on it to decide a case ex aequo et bono if the Parties so
agree. "It would seem to be an important principle of equity that where two parties
have assumed an identical or a reciprocal obligation; one party which is engaged in a
continuing non-performance of that obligation should not be permitted to take
advantage of a similar non-performance of that obligation by the other party.(11) A
tribunal, bound by international law, ought not to shrink from applying a principle of
such obvious fairness. In equity, the Netherlands cannot ask Belgium to discontinue
the operation of the Neerhaeren Lock when the Netherlands remain free to continue
the operation of the Bosscheveld Lock. Neither of these two requests should be
granted where the circumstances are such that the judgment would disturb that
equality which is equity. If it preserves the equality between the Parties, the
judgment may better serve to facilitate their negotiations on the conclusion of a new
treaty to replace that of 1863.

32 Filartiga v. Pena-Irala (EMAR)
June 30, 1980 | Kaufman, Circuit Judge | General Principles
PLAINTIFFS-APPELLANTS: Dolly M. E. Filartiga and Joel Filartiga
DEFENDANT-APPELLEE: Americo Norberto Pena-Irala
SUMMARY: Pena tortured and killed Joselito, the son of Dr. Joel. When Dolly,
daughter of Dr. Joel found out that Pena and his partner, Villalaba, is living in the
US, she informed the Immigration and Naturalization Service which, later on,
arrested them for staying beyond what is allowed in his visa. Dolly caused Pena to be
served with a summons and civil complaint at the Brooklyn Navy Yard, where he
was being held pending deportation. Dolly’s Complaint contained the fact that Pena
had caused Joelito’s death by torture and sought (1) compensatory and punitive
damages of $10m and (2) to enjoin Pena’s deportation to ensure his availability for
testimony at trial. However, Judge Nickerson dismissed the complaint on
jurisdictional grounds. The issue in this case is whether or not deliberate torture
perpetrated under color of official authority violates universally accepted norms of
the international law of human rights, regardless of the nationality of the parties. The
court ruled that prohibition not only was part of Customary International Law, but
was also part of the Universal Declaration of Human Rights. Members of the UN
cannot claim ignorance of what human rights they promised the Charter. The UDHR
is an authoritative statement of the international community. It creates an expectation
of adherence. The international consensus surrounding torture has been manifested in
numerous treaties and is also reflected in modern municipal law. Torture is
prohibited in the constitutions of over 55 nations including the US and Paraguay.
DOCTRINE: An act of torture committed by a state official against one held in
detention violates established norms of the international law of human rights, and
hence the law of nations.
FACTS:
1. Dolly and Dr. Joel Filartiga are citizens of the Republic of Paraguay.
2. Dr. Joel describes himself as a longstanding opponent of the government of
President Alfredo Stroessner, which has held power in Paraguay since 1954.
3. The Filartigas brought this action in New York against Americo Norberto
Pena-Irala (Pena), also a citizen of Paraguay, for wrongfully causing the
death of Dr. Filartiga’s 17 year-old son, Joelito.
4. Joelito was kidnapped and tortured to death by then Inspector General of
Police, Pena as retaliation for Dr. Joel’s political activities and belief. Later
that day, the police brought Dolly to Pena’s home where she was shown the
body of her brother, with marks of severe torture. Pena shouted, “Here you
have what you have been looking for so long & what you deserve. Now
shut up” as Dolly fled from the house, horrified.
5. Dr. Joel filed a criminal case in the Paraguayan courts against Pena and the
police for the murder of his son. As a result, Dr. Joel’s attorney was (1)
arrested and (2) brought to police headquarters (3) shackled to a wall (4)
threatened by Pena with death and (5) disbarred without just cause.
6. During the course of the Paraguayan criminal proceeding, Duarte (son of
Pena’s companion), confessed to the murder; claiming that he discovered
his wife & Joelito in flagrante delicto & and that the crime was one of
passion. Dolly submitted a photo of Joelito’s corpse showing injuries which
refute this claim, stating that she will offer evidence of 3 independent
autopsies demonstrating that her brother’s death “was the result of
professional methods of torture.”
7. Pena sold his house in Paraguay and entered and remained in the US,
accompanied by Villalba, who lived with him in Paraguay.
8. Dolly, who was then living in Washington, learned of their presence so she
told the Immigration and Naturalization Service which arrested Pena and
Villalba, who were subsequently ordered deported after.
9. Dolly caused Pena to be served with a summons and civil complaint at the
Brooklyn Navy Yard, where he was being held pending deportation.
10. Dolly’s Complaint: Pena had caused Joelito’s death by torture and sought
(1) compensatory and punitive damages of $10m (2) to enjoin Pena’s
deportation to ensure his availability for testimony at trial.
11. The cause of action is stated as arising under “wrongful death statutes; UN
Charter; Universal Declaration on Human Rights (UDHR); UN Declaration
Against Torture (UNDAT); American Declaration of the Rights & Duties of
Man; and other pertinent declarations, documents practices constituting the
customary international law of human rights & law of nations,” 28 U.S.C. s
1350, Article II, sec. 2 and Supremacy Clause of the US Constitution.
12. Jurisdiction was also invoked in connection with appellants’ attempt to
delay Pena’s return to Paraguay. Judge Nickerson stayed the order of
deportation, and Pena moved to dismiss the complaint on the grounds that
subject matter jurisdiction was absent and for forum non conveniens.
13. Filartigas submitted the affidavits of a number of distinguished international
legal scholars, who stated unanimously that the law of nations prohibits
absolutely the use of torture as alleged in the complaint.
14. Pena, in support of his motion to dismiss on the ground of forum non
conveniens, submitted the affidavit of his Paraguayan counsel, Gorostiaga,
who averred that Paraguayan law provides a full and adequate civil remedy
for the wrong alleged.
15. Dr. Joel has not commenced such an action, however believing that further
resort to the courts of his own country would be futile.
16. Judge Nickerson dismissed the complaint on jurisdictional grounds. The
district judge recognized the strength of appellants’ argument that official
torture violates an emerging norm of customary international law.
Nonetheless, he felt constrained by dicta contained in two recent opinions
of this Court, Dreyfus v. von Finck, to construe narrowly “the law of
nations,” as employed in 1350, as excluding that law which governs a
state’s treatment of its own citizens.
17. The district court continued the stay of deportation for 48 hours while
Filartigas applied for further stays which were denied so Pena and his
companion returned to Paraguay.
 c. Richard Lillich, the Howard W. Smith Professor of Law at the
ISSUE: WON deliberate torture perpetrated under color of official authority violates University of Virginia School of Law, concludes, after a lengthy
universally accepted norms of the international law of human rights, regardless of the review of the authorities, that officially perpetrated torture is “a
nationality of the parties - YES violation of international law (formerly called the law of
nations).”
RULING: We reverse the judgment of the district court dismissing the complaint for d. Myres MacDougal, a former Sterling Professor of Law at the Yale
want of federal jurisdiction. Law School, and a past President of the American Society of
International Law, states that torture is an offense against the
RATIO: law of nations, and that “it has long been recognized that such
1. The Filartigas rest their principal argument in support of federal jurisdiction offenses vitally affect relations between states.
upon the Alien Tort Statute, stating, “The district courts shall have original 6. Modern international sources confirm the propriety of this approach.
jurisdiction of any civil action by an alien for a tort only, committed in 7. The prohibition not only was part of Customary International Law, but was
violation of the law of nations or a treaty of the US.” also part of the Universal Declaration of Human Rights. Members of the
2. Since the Filartigas do not contend that their action arises directly under a UN cannot claim ignorance of what human rights they promised the
treaty of the US, a threshold question on the jurisdictional issue: WON the Charter. The UDHR is an authoritative statement of the international
conduct alleged violates the law of nations. community. It creates an expectation of adherence. The international
3. In light of the universal condemnation of torture in numerous international consensus surrounding torture has been manifested in numerous treaties and
agreements, and the renunciation of torture as an instrument of official is also reflected in modern municipal law. Torture is prohibited in the
policy by virtually all of the nations of the world (in principle if not in constitutions of over 55 nations including the US and Paraguay.
practice), we find that an act of torture committed by a state official
against one held in detention violates established norms of the
international law of human rights, and hence the law of nations.
4. The SC has enumerated the appropriate sources of international law. The
law of nations “may be ascertained by consulting the works of jurists,
writing professedly on public law; or by the general usage and practice of
nations; or by judicial decisions recognizing and enforcing that law.”; Lopes
v. Reederei Richard Schroder
5. The Paquete Habana reaffirmed that where there is no treaty, and no
controlling executive or legislative act or judicial decision, resort must
be had to the customs and usages of civilized nations; and, as evidence of
these, to the works of jurists and commentators, who by years of labor,
research and experience, have made themselves peculiarly well acquainted
with the subjects of which they treat. Such works are resorted to by judicial
tribunals, not for the speculations of their authors concerning what the law
ought to be, but for trustworthy evidence of what the law really is.\
a. Richard Falk, the Albert G. Milbank Professor of International
Law and Practice at Princeton University, and a former Vice
President of the American Society of International Law, avers that,
in his judgment, “it is now beyond reasonable doubt that torture of
a person held in detention that results in severe harm or death
is a violation of the law of nations.”
b. Thomas Franck, professor of international law at New York
University and Director of the New York University Center for
International Studies offers his opinion that torture has now been
rejected by virtually all nations, although it was once
commonly used to extract confessions.
 Trendtex v. Central Bank of Nigeria (Sarmiento)
1976 Oct. 6, 7, 8, 11, 12, 13, 14, 15, 18; 1977 Jan. 13
| Lord Denning M.R., Stephenson and Shaw L.JJ.
| General Accepted Principles of International Law
PETITIONER: Trendtex trading Corporation
RESPONDENTS: Central Bank of Nigeria
SUMMARY: The Central Bank of Nigeria issued a letter of credit drawn on the
Midland Bank in London in favour of Trendtex Trading Corporation, a Swiss
company. It was to pay for a large quantity of cement sold by Trendtex to an English
company. The bank assured Trendtex by letter that there was no need to get the letter
of credit confirmed by another bank: the money would be available. So Trendtex
went ahead, bought the cement from a German company, sold it to the English
company, and shipped it to Nigeria. Now the bank refuses to pay and treats the letter
of credit as a scrap of paper. The cement was bought by the English company to
build barracks for the Ministry of Defence of the Government of Nigeria, which had
agreed to buy it from the English company. The bank claims to be an arm or
department of that government and to have performed an act of government in
granting Trendtex this letter of credit. Whether the grant was a public act of
government or a private commercial transaction, it would offend against the dignity
of the sovereign state of Nigeria and the comity of civilised nations if the bank had to
defend Trendtex’s claim to payment in accordance with the letter of credit in the
courts of this country against the Nigerian Government’s will; and it would be a
breach of international law if the High Court of Justice in England were to compel
the bank to defend the claim. We have to consider whether that was rightly done or
whether he should have held that he was not required by international law to uphold
the plea of sovereign immunity in respect of an act done by the bank in the ordinary
course of banking business in connection with an ordinary commercial transaction
and should have allowed the action to go on. The court held that the restrictive
immunity must be applied in this case and plea of sovereign immunity, does not
avail the Central Bank of Nigeria. There is no doubt that in the last 20 years the
restrictive theory has steadily gained ground. According to a list compiled by
reference to the various textbooks on international law and put before their
Lordships by agreement between the parties there are now comparatively few
countries outside the Commonwealth which can be counted adherents of the
absolute theory. Many countries have now departed from the rule of absolute
immunity. So many have departed from it that it can no longer be considered a
rule of international law. It has been replaced by a doctrine of restrictive
immunity. This doctrine gives immunity to acts of a governmental nature, as jure
imperii, but no immunity to acts of a commercial nature, jure gestionis. And in this
case, if a government department goes into the market places of the world and
buys boots or cement – as a commercial transaction – that government
department should be subject to all the rules of the market place. The seller is
not concerned with the purpose to which the purchaser intends to put the goods.
DOCTRINE: Applying the generally accepted principle of restrictive immunity,
(because the international community has now departed from absolute immunity), it
states that if a certain act is jure impreii, it gives immunity to acts of a governmental
nature, but no immunity to acts of a commercial nature, jure gestionis.
FACTS:
1. The Central Bank of Nigeria was incorporated in 1958 by a Nigerian statute
as a central bank modelled on the Bank of England. It issued legal tender
and acted as banker and financial adviser to the Government of Nigeria. It
also acted as banker for other banks and its affairs were under considerable
governmental control
2. In July 1975 the Central Bank issued an irrevocable letter of credit for over
$14,000,000 in favour of the plaintiff, a Swiss company, to pay for 240,000
tons of cement which the plaintiff had sold to an English company.
a. The cement was to be shipped to Nigeria where it was to be used to
build government barracks.
b. The plaintiff shipped the cement to Nigeria but there was
congestion in the port of discharge and the Central Bank declined
to make payments claimed to be due for the price and for
demurrage
3. By writ of November 1975 the plaintiff claimed against the Central Bank
for payments due in respect of the bank’s breaches and repudiation of the
letter of credit.
c. Mocatta J. granted the plaintiff an injunction ordering the bank to
retain $13,968,190 within the jurisdiction until the trial of the
action or further order.
d. Donaldson J., on the bank’s application, set aside the writ and
stayed further proceedings in the action on the ground that the
bank was a department of the State of Nigeria and was therefore
immune from suit
4. On the plaintiff’s appeal:—Held, allowing the appeal,
e. (1) that the bank, which had been created as a separate legal entity
with no clear expression of intent that it should have governmental
status, was not an emanation, arm, alter ego or department of the
State of Nigeria and was therefore not entitled to immunity from
suit.
 f. (2) That (per Lord Denning M.R. and Shaw L.J.) even if the bank
were part of the Government of Nigeria, since international law
now recognised no immunity from suit for a government
department in respect of ordinary commercial transactions as
distinct from acts of a governmental nature, it was not immune
from suit on the plaintiff’s claim in respect of the letter of credit
g. Per curiam. The modern principle of restrictive sovereign
immunity in international law giving no immunity to acts of a
commercial nature is consonant with justice, comity and good
sense
h. (3) That since the bank was not entitled to immunity from suit the
injunction preserving funds within the jurisdiction to satisfy the
plaintiff’s claim should be continued (post, pp. 371, 382, 389).
5. On November 4, 1975, the plaintiff, Trendtex Trading Corporation, issued a
writ against the Central Bank of Nigeria, the defendant, in respect of
payments due to the plaintiff from the bank under a letter of credit dated
July 24, 1975, relating to a contract of the same date for the purchase of
cement from the plaintiff by Pan-African Export and Import Co. Ltd.
i. On November 4, Mocatta J. ordered that the plaintiff should have
leave to serve a concurrent writ of summons against the bank and
to serve notice thereof on the bank at its registered office in
Nigeria and he granted the plaintiff an injunction that the bank
should retain $13,968,190, or its equivalent in sterling, within the
jurisdiction against the plaintiff’s claim until the hearing of a
summons returnable on November 11, 1975.
j. On December 9, 1975, following an order on November 11,
Mocatta J. ordered that the injunction be continued until the trial of
the action or further order.
6. On March 26, 1976, on the bank’s application by summons for the writ to
be set aside on the ground that it was a department of the Federal Republic
of Nigeria and was thereby immune from suit, Donaldson J., held that the
bank was “an emanation, an arm, an alter ego and a department of the State
of Nigeria” and ordered that “the injunctions be discharged, the proceedings
set aside and all further proceedings … stayed.”
7. The plaintiff appealed The facts are stated in the judgment of Lord Denning
M.R.
ISSUE: Whether or not the Central Bank of Nigeria is immuned from suit--NO.
RULING: For these reasons I concur in allowing the appeal.
RATIO:
1. In July 1975 the port of Lagos/Apapa was congested with shipping. Most of
them were carrying cement. All of those waiting were on demurrage. It was
because the government departments had ordered far too much.
a. No doubt Nigeria needed cement.
b. The ports were utterly unable to cope with it.
c. The crisis was one of the reasons for a change of government in
Nigeria.
d. On July 29, 1975, a new military administration took over the
reins. One of its first tasks was to find out the root cause of the
congestion. It found that the previous administration had made
contracts for cement which were “unorthodox, imprudent or
inequitable.”
2. This case is one of them. It is a claim on a letter of credit issued by the
Central Bank of Nigeria, the defendant. We are not concerned with the
rights or wrongs of the claim: but only with a preliminary point.
a. The Central Bank of Nigeria claim that they cannot be sued in
this country on the letter of credit: because they are entitled to
sovereign immunity.
b. The plaintiff, Trendtex Trading Corporation, disputes this on
the ground that this is an ordinary commercial transaction to
which sovereign immunity does not apply. So I must describe
the nature of the transaction.
3. The story starts with a contract which was made before the crisis broke. The
Ministry of Defence in Nigeria agreed to buy 240,000 tons of Portland
cement from an English company, the Pan-African Export and Import Co.
Ltd.
a. The Central Bank of Nigeria duly issued a letter of credit in favour
of Pan-African.
b. It was issued in London through their correspondent bank, the
Midland Bank Ltd.,
c. The Midland Bank Ltd. did not confirm the credit so as to make
themselves liable on it. They only advised the seller of its terms.
The responsibility of the Central Bank of Nigeria
4. The point about confirmation had been expressly raised by suppliers: and
the Central Bank of Nigeria had said that confirmation was unnecessary.
The transfer to Trendtex
5. In order to fulfil their contract to supply the cement, Pan-African entered
into a contract with the Trendtex Trading Corporation of Zurich,
Switzerland.
a. On the same day, the credit was transferred to Trendtex. It was
done by means of a new irrevocable letter of credit issued by the
 Central Bank of Nigeria through its correspondent the Midland
Bank, London.
b. In order to fulfil this contract to supply cement, Trendtex agreed to
buy 240,000 tons of cement from Alsen-Breitenburg of Hamburg,
and established a letter of credit issued by a Swiss bank for the
price.
The shipment
The two schools of thought
6. Trendtex shipped four consignments of cement under their contract with
Pan-African. Trendtex also requested payment from the Central Bank of
Nigeria due to the message of the Central Bank of Nigeria stating that: the
Nigerian Federal Military Government will not pay the letters of credit
unless clearance has been obtained for the ships to sail to Nigeria.
a. Trendtex went to Lagos and made representations to the Nigerian
government. They were told that no payment whatever would be
made on the last two vessels: and demurrage would only be paid
on the first four vessels if certified by the Central Bank of Nigeria
for payment.
The action
7. Trendtex issued a writ in the High Court of Justice in London against the
Central Bank of Nigeria. They claimed demurrage on all six vessels. The
Central Bank of Nigeria applied to set aside the writ on the ground that the
Central Bank of Nigeria is a department of the Federal Republic of Nigeria
and, therefore, immune from suit.
8. Trendtex appeal to this court. Trendtex also applied for an order that the
bank do retain $14 million in London to meet the claim. Mocatta J. made
that order. It is effective because the bank have that sum to their credit with
the Midland Bank. The money is being retained here pending the appeal.
The general picture
1. The doctrine of sovereign immunity is based on international law. It is one
of the rules of international law that a sovereign state should not be
impleaded in the courts of another sovereign state against its will. Like all
rules of international law, this rule is said to arise out of the consensus of
the civilised nations of the world. All nations agree upon it. So it is part of
the law of nations.
a. To my mind this notion of a consensus is a fiction. The nations are
not in the least agreed upon the doctrine of sovereign immunity.
b. Yet this does not mean that there is no rule of international law
upon the subject. It only means that we differ as to what that rule
is. Each country delimits for itself the bounds of sovereign
immunity. Each creates for itself the exceptions from it.
c. It is, I think, for the courts of this country to define the rule as best
they can, seeking guidance from the decisions of the courts of
other countries, from the jurists who have studied the problem,
from treaties and conventions and, above all, defining the rule in
terms which are consonant with justice rather than adverse to it.
2. A fundamental question arises for decision. What is the place of
international law in our English law?
a. One school of thought holds to the doctrine of incorporation.
i. It says that the rules of international law are incorporated
into English law automatically and considered to be part
of English law unless they are in conflict with an Act of
Parliament.
b. The other school of thought holds to the doctrine of
transformation.
i. It says that the rules of international law are not to be
considered as part of English law except in so far as they
have been already adopted and made part of our law by
the decisions of the judges, or by Act of Parliament, or
long established custom
c. The difference is vital when you are faced with a change in the
rules of international law. Under the doctrine of incorporation,
when the rules of international law change, our English law
changes with them. But, under the doctrine of transformation, the
English law does not change. It is bound by precedent. It is bound
down to those rules of international law which have been accepted
and adopted in the past. It cannot develop as international law
develops.
d. Which is correct? As between these two schools of thought, I now
believe that the doctrine of incorporation is correct.
i. It is certain that international law does change.
ii. Seeing that the rules of international law have changed –
and do change – and that the courts have given effect to
the changes without any Act of Parliament, it follows to
my mind inexorably that the rules of international law, as
existing from lime to time, do form part of our English
law. International law knows no rule of stare decisis.
3. Has there been a change?
a. The doctrine of absolute immunity. A century ago no sovereign
state engaged in commercial activities.
 i. “The courts of a country will not implead a foreign
sovereign, that is, they will not by their process make him
against his will a party to legal proceedings whether the
proceedings involve process against his person or seek to
recover from him specific property or damages.”
b. The doctrine of restrictive immunity.
i. In the last 50 years there has been a complete
transformation in the functions of a sovereign state.
Nearly every country now engages in commercial
activities
ii. This transformation has changed the rules of international
law relating to sovereign immunity. Many countries
have now departed from the rule of absolute
immunity. So many have departed from it that it can
no longer be considered a rule of international law. It
has been replaced by a doctrine of restrictive
immunity.
iii. This doctrine gives immunity to acts of a governmental
nature, as jure imperii, but no immunity to acts of a
commercial nature, jure gestionis.
4. Are we to follow likewise?
a. In one respect already the Privy Council have abandoned the
absolute theory and accepted the restrictive theory. It is in respect
of actions in rem: see The Philippine Admiral [1976] 2 W.L.R.
214, 232. But, unfortunately, the Privy Council seem to have
thought that the absolute theory still applied to actions in
personam.
The modern rule
5. Rahimtoola v. Nizam of Hyderabad [1958] A.C. 379, 422:
a. “If the dispute brings into question, for instance, the legislative or
international transactions of a foreign government, or the policy of
its executive, the court should grant immunity if asked to do so,
because it does offend the dignity of a foreign sovereign to have
the merits of such a dispute canvassed in the domestic courts of
another country: but, if the dispute concerns, for instance, the
commercial transactions of a foreign government (whether
carried on by its own departments or agencies or by setting up
separate legal entities), and it arises properly within the
territorial jurisdiction of our courts, there is no ground for
granting immunity.”
The law of the European Community
6. Even if there were no settled rule of international law on the subject, there
should at least be one settled rule for the nine countries of the European
Economic Community.
a. The Treaty of Rome is part of the law of England. One of the
objectives contained in article 3 (h) [see Cmnd. 5179] is to ensure
“the approximation of the laws of member states to the extent
required for the proper functioning of the common market.
b. In view of those provisions, it seems to me that it is the duty of
each of the member states – and of the national courts in those
states – to bring the law as to sovereign immunity into harmony
throughout the community. The rules applied by each member
state on the subject should be the same as the rules applied by the
others. There is only one acceptable way of doing it. That is by
adopting the doctrine of restrictive immunity on the lines I have
suggested.
The application to this case
7. So I turn to see whether the transaction here was such as to attract sovereign
immunity, or not.
a. It was suggested that the original contracts for cement were made
by the Ministry of Defence of Nigeria: and that the cement was for
the building of barracks for the army.
b. On this account it was said that the contracts of purchase were
acts of a governmental nature, jure imperii, and not of a
commercial nature, jure gestionis.
c. But I do not think this should affect the question of immunity. If a
government department goes into the market places of the
world and buys boots or cement – as a commercial transaction
– that government department should be subject to all the
rules of the market place. The seller is not concerned with the
purpose to which the purchaser intends to put the goods.
8. There is another answer. Trendtex here are not suing on the contracts of
purchase. They are claiming on the letter of credit which is an entirely
separate contract. It was a straightforward commercial transaction.
a. The letter of credit was issued in London through a London bank
in the ordinary course of commercial dealings. It is completely
within the territorial jurisdiction of our courts. I do not think it is
open to the Government of Nigeria to claim sovereign immunity in
respect of it.
The German decision
9. “According to the decisions of the Federal Constitutional Court of 1962 and
1963 … a foreign state may be granted immunity from German jurisdiction
 only in respect of its sovereign activity (acta jure imperii) but not in respect
of its non-sovereign activity (acta jure gestionis), because no general rule of
public international law exists under which the domestic jurisdiction for
actions against a foreign state in relation to its non-sovereign activity is
precluded.”
Alter ego or organ of government
10. If we are still bound to apply the doctrine of absolute immunity, there is,
even so, an important question arising upon it. The doctrine grants
immunity to a foreign government or its department of state, or any body
which can be regarded as an “alter ego or organ” of the government. But
how are we to discover whether a body is an “alter ego or organ” of the
government?
a. In some countries the government departments conduct all their
business through their own offices – even ordinary commercial
dealings – without setting up separate corporations or legal entities.
b. In other countries they set up separate corporations or legal entities
which are under the complete control of the department, but which
enter into commercial transactions, buying and selling goods,
owning and chartering ships, just like any ordinary trading
concern. This difference in internal arrangements ought not to
affect the availability of immunity in international law. A foreign
department of state ought not to lose its immunity simply because
it conducts some of its activities by means of a separate legal
entity.
11. Another problem arises because of the internal laws of many countries
which grant immunities and privileges to its own organisations. Some
organisations can sue, or be sued, in their courts. Others can not.
12. I confess that I can think of no satisfactory test except that of looking to
the functions and control of the organisation. I do not think that it
should depend on the foreign law alone. I would look to all the evidence
to see whether the organisation was under government control and
exercised governmental functions.
13. With these considerations in mind, I turn to our problem.
Central Bank of Nigeria
14. At the hearing we were taken through the Act of 1958 under which the
Central Bank of Nigeria was established, and of the amendments to it by
later decrees
a. The upshot of it all may be summarised as follows. (i) The Central
Bank of Nigeria is a central bank modelled on the Bank of
England. (ii) It has governmental functions in that it issues legal
tender; it safeguards the international value of the currency; and it
acts as banker and financial adviser to the government. (ii) Its
affairs are under a great deal of government control in that the
Federal Executive Council may overrule the board on monetary
and banking policy and on internal administrative policy. (iv) It
acts as banker for other banks in Nigeria and abroad, and maintains
accounts with other banks. It acts as banker for the states within
the federation: but has few, if any, private customers.
15. In these circumstances I have found it difficult to decide whether or no the
Central Bank of Nigeria should be considered in international law a
department of the Federation of Nigeria, even though it is a separate legal
entity. But, on the whole, I do not think it should be.
16. This conclusion would be enough to decide the case, but I find it so
difficult that I prefer to rest my decision on the ground that there is no
immunity in respect of commercial transactions, even for a government
department.
Waiver or estoppel
17. It was submitted that, the Central Bank of Nigeria waived any claim to
sovereign immunity or is estopped from claiming it. But the point was not
pressed in this court because of previous decisions,
Injunction
18. It was said that the money standing to the credit in the books of the Midland
Bank was money belonging to the Federation of Nigeria: and that it was not
subject to seizure or to an injunction. This point seems to me to depend on
precisely the same grounds as those considered earlier. If the Central Bank
is entitled to immunity from being sued, so also can the funds be immune
from being seized. Otherwise not.
Conclusion
19. In my opinion the plea of sovereign immunity, does not avail the
Central Bank of Nigeria.
20. In 1958 the functions of central banks were well known to be partly
governmental and partly private.
a. In 1958 the law of nations relating to sovereign immunity was on
the move.
b. It was uncertain how far it was going or how far it had gone in its
development; but a body declared to be constitutionally a
government department was certainly entitled to sovereign
 immunity for some of its acts and perhaps still for all its acts. Yet
this bank was not declared to be so. Was it nevertheless a
government department, and if not has it become one?
c. The Philippine Admiral [1976] 2 W.L.R. 214, 228 said: “There is
no doubt that since the Second World War there has been both in
the decisions of courts outside this country and in the views
expressed by writers on international law a movement away from
the absolute theory of sovereign immunity towards a more
restrictive theory. This restrictive theory seeks to draw a
distinction between acts of a state which are done jure imperii
and ads done by it jure gestionis and accords the foreign state
no immunity either in actions personam or in actions in rem in
respect of transactions falling under the second head.”
21. “According to the Tate letter the countries of the world were then fairly
evenly divided between those whose courts adhered to the absolute theory
and those which adopted the restrictive; but there is no doubt that in the
last 20 years the restrictive theory has steadily gained ground.
According to a list compiled by reference to the various textbooks on
international law and put before their Lordships by agreement between
the parties there are now comparatively few countries outside the
Commonwealth which can be counted adherents of the absolute theory.
22. This movement had gained a fair amount of ground by 1958 in the courts of
many countries,
a. The decisions reviewed by the Federal Constitutional Court of the
Federal Republic of Germany in 1963 in the Claim against the
Empire of Iran Case, show that by 1958 several countries had
accepted and enforced the rule of restrictive immunity.
b. In 1958 the unanimity of English judges was divided by one
judicial voice speaking out in favour of restricting immunity to acts
jure imperii: Lord Denning in Rahimtoola v. Nizam of Hyderabad
[1958] A.C. 379, 422.
23. It might therefore have been thought necessary, as it certainly would have
been prudent, to take the first step requisite for obtaining sovereign
immunity for the bank’s acts by according it in statutory terms a status
which qualified for that immunity.
a. Yet the Government of Nigeria in that year created a central bank,
a “government bank and a prime bank,” with many of the powers
and duties of a bank and with no declaration of government status;
a separate entity not stated to be a government department or to be
immune from suit internally or externally, or to be subject to
claims under the Petitions of Right Act 1958, as is any ministry or
department of the Nigerian Government, but on the contrary
capable of suing and being sued in its own name under section 3
(2) of the Central Bank of Nigeria Act 1958. Such a body can be
an emanation of government, immune from suit at home or
abroad or everywhere: Baccus S.R.L. v. Servicia Nacional Del
Trigo [1957] 1 Q.B. 438.
b. It can be certified to be so by a representative of its own
government or perhaps of the government of the country in which
proceedings are brought against it.
24. what was the legislative intention of the Government of Nigeria in creating
this bank by the statute which we have examined, and in tightening control
over it by the subsequent decrees to which we have been referred? and, is
the bank, controlled as it now is by the Government of Nigeria, the sort of
body which the law of nations, or if it differs, the law of this country,
recognises as entitled to the immunity which it accords to a sovereign state?
a. Then does the bank prove, as it must, that the intention to make the
bank a department or an organ of the Nigerian State is of necessity
to be implied from the Act and the amending decrees?
i. I am not satisfied that the bank was created by the Act a
department of the Nigerian Government or has been
changed into one by any of the eleven amending decrees
which it was contended for the bank had dramatically
eroded its independence.
ii. A hobbled horse is still a horse. A corporation may
change its constitution by degrees, but I am not satisfied
that any of the amendments of the Act incorporating the
bank have changed its constitution and turned it into an
organ of the Nigerian State.
25. Of these remaining questions I take first the question whether, assuming
that the bank is a body entitled to plead sovereign immunity, it is entitled to
plead it in respect of an action on the letter of credit which it issued to
Trendtex. That resolves itself into two questions. (1) Was the issue of the
letter of credit by the bank in favour of Trendtex an ordinary trading
transaction? (2) If it was, can an English court below the House of Lords
reject the bank’s plea of sovereign immunity in respect of such a
transaction?
26. (1) The movement or trend of opinion towards restricting sovereign
immunity is based on the distinction between ordinary trading transactions
and governmental acts.
a. The new doctrine would restrict immunity to the latter, labelled in
Latin as acta jure imperii, and deny it to the former under the
description of acta jure gestionis.
b. The distinction between the two categories has been found as
difficult to draw as the distinction between a state’s agents who are
not immune and a state’s agencies which are.
 c. But I entertain no doubt that the issue of this letter of credit in
payment for this cement fell on the private and commercial
side of the line and was an ordinary trading transaction. It was
a separate transaction from the sale to the English company in
whose favour the first letter of credit was issued by the bank:
see General Provision and Definition (c) of Uniform Customs and
Practice for Documentary Credits (1962 Revision) from which
Lord Denning M.R. has quoted, ante, p. 363D.
27. Trendtex must be taken to have known that the bank’s transferable letter of
credit in favour of the English company was opened with the Midland Bank
in London on account of the Permanent Secretary, Ministry of Defence,
Lagos. But the letter of credit opened in favour of Trendtex was on account
of the English company. There are those who regard the purpose of the
transaction as determining the question whether it is public and
governmental or private and commercial;
a. I prefer the view incorporated in the Bill introduced into the United
States House of Representatives in 1975: “the commercial
character of an activity shall be determined by reference to the
nature of the course of conduct or particular transaction or act,
rather than by reference to its purpose”: see section 1603 (d) of the
Foreign Sovereign Immunity Act 1976.
28. (2) Are we prevented from enforcing the bank’s obligation to pay in
accordance with the letter of credit? Are we bound by authority to the
doctrine of absolute immunity which protects a sovereign in respect of all
his acts whether jure imperii or jure gestionis? This is the question of the
most general importance raised by this appeal and perhaps of the
greatest difficulty.
a. On the one hand, Mr. Neill for Trendtex has argued that every
court in the United Kingdom can and should apply the relevant
contemporary rule of international law with certain exceptions
which do not include a previous decision of binding authority
applying a different rule no longer in force; and the relevant
contemporary rule is restrictive immunity.
b. On the other hand, Mr. Bingham, for the bank, contended that the
rule of absolute immunity for a sovereign state or one of its organs
sued in personam is still binding upon this and every court in the
United Kingdom unless and until the House of Lords decides to
depart from its previous decisions or Parliament repeals the rule;
and there is not yet established by international law any new rule
of restrictive immunity which exempts acts of a sovereign state or
one of its organs from immunity or agrees on what those exempted
acts are.
c. The first difficulty in deciding between these two submissions is
caused by the nature of international law and the manner in which
municipal courts ascertain what it is, how the law of nations is
made and how proved.
29. “The law of nations … is here adopted in its full extent by the common law,
and is held to be a part of the law of the land.”
a. He went on to add that “the law merchant is a branch of the law of
nations
b. But the universal consent required by this confident and exacting
18th century definition is, as Lord Denning M.R. has pointed out, a
fiction; if it ever existed, it is not now forthcoming in many
spheres of international law, and certainly not, in my judgment, in
the area of sovereign immunity.
c. There is, however, ample authority not for the view that each
nation can decide what rule suggested by any jurist or body of
jurists, or laid down and applied by any foreign court or courts, it
can and should itself apply, but for the view that it can and should
apply a generally accepted rule. I cite two statements from the
early years of this century.
30. “In the domain of international law, in particular, there is room for the
extension of old doctrines or the development of new principles, where
there is, or is even likely to be, a general acceptance of such by civilised
nations. Precedents handed down from earlier days should be treated as
guides to lead, and not as shackles to bind. But the guides must not be
lightly deserted or cast aside.”
31. I would find less difficulty in accepting restrictive immunity, in place of
absolute immunity if restrictive immunity were as generally accepted today
as absolute immunity was in the past – and that may not have been as
universally accepted as I have assumed.
a. But rules of international law, whether they be part of our law or
source of our law, must be in some sense “proved,” and they are
not proved in English courts by expert evidence like foreign law:
they are “proved” by taking judicial notice of “international
treaties and conventions, authoritative text books, practice and
judicial decisions” of other courts in other countries which show
that they have “attained the position of general acceptance by
civilised nations”
b. And those sources come seldom if ever from every civilised nation
or agree upon a universal rule; they move from one generally
accepted rule towards another.
c. But if none moved, old rules would never die and new rules never
come into being. Some move must be made by states, or their
tribunals, or jurists, to prevent petrifaction of the living law.
32. When should the court of law accept or adopt or incorporate or assent to
what is alleged to be a new rule of international conduct? Can an English
court ever make the first move in this country? Or must it wait for a “Tate
letter” from the Government of the United Kingdom?
a. If one asks the questions indicated by the judgment in West Rand
Central Gold Mining Co. Ltd. v. The King [1905] 2 K.B. 391 the
answers do not give Trendtex much help.
b. Have civilised states agreed that the doctrine of restrictive
immunity shall be binding upon them in their dealings with
one another? The answer is doubtful; many have
c. Or that it is of such a nature, and has been so widely and generally
accepted, that it can hardly be supposed that any civilised state
would repudiate it? The answer to that might be yes; the
Government of Nigeria has not repudiated the doctrine by
instructing the bank to plead immunity for what it alleges to be
an act done jure imperii, but it is a bold claim that no civilised
state would repudiate the application of the restrictive doctrine
to actions in personam, and inconsistent with the opinion of the
Privy Council to which Lord Denning M. R. has referred, that
the House of Lords is unlikely to apply it to them: The
Philippine Admiral [1976] 2 W.L.R. 214, 233.
33. Have the opinions of jurists received the express sanction of
international agreement, or have they grown to be part of international
law by their frequent practical recognition in dealings between various
nations? On all the material put before us I could not answer that
question in the affirmative. It is clearly difficult if not impossible to
prove that governments have acted on the “rule” of restrictive
immunity by failing to plead immunity for ordinary commercial
transactions. How do you prove that the gestation of a new rule is over
and that it has come to birth? Or that an old rule has grown and
developed into a new form?
a. It is part of Mr. Bingham’s case that a vacuum may have been
created in the law of nations by the dissent of many from the old
rule, but that the vacuum has not been filled by any agreed new
rule. Even if the law of nations does not abhor a vacuum, it is
entirely unsatisfactory that the courts of this country should not lift
a finger to help fill it by a new rule which is “consonant with
justice.” In my judgment this new rule is consonant with justice. It
is in accord with the law merchant which requires that payments
on letters of credit should be honoured. It is now so widely and
generally accepted that no civilised country which has not yet
expressly assented to it should be presumed to repudiate it.
b. It would be repugnant to justice if an English court were to
repudiate it in modern conditions and so in effect extend the old
rule of immunity to transactions which were never considered
subject to it by former judges and jurists because such transactions
would never in their time have been carried out by sovereign states
or their emanations.
34. Has this court the power to do what Trendtex asks and to reject the bank’s
plea of sovereign immunity by applying the sufficiently accepted rule of
restrictive immunity?
a. The Judicial Committee of the Privy Council has in The Philippine
Admiral [1976] 2 W.L.R. 214 cleared the way forward by
restricting the immunity for actions in rem, but has discouraged
any advance towards restricting the immunity for actions in
personam.
b. The recent American and German decisions already cited may
encourage the legislature or the executive or the House of Lords to
recognise and adopt the new development of the old doctrine.
c. But meanwhile I must stand loyally but reluctantly on the old
doctrine and the old decisions. I therefore prefer to rest my
decision in this case on the ground that the bank is not an
emanation, arm, alter ego or department of the State of
Nigeria.
SHAW L.J.
1. These are hardly indications of executive power having been vested in the
bank. Rather do they exhibit the bank as having only the status of an agent
for the government in certain matters. There are other similar indications in
the Central Bank of Nigeria Act 1958 which in my opinion reinforce the
view that the bank has a status outside the government and separate from it.
2. In my judgment, therefore, even if the Central Bank of Nigeria is part of the
government of that country, it is not immune from suit in respect of the
subject matter of the present action. In coming to this conclusion I should
make it clear that I regard the intrinsic nature of a transaction rather than its
object as the material consideration in determining whether entering into
that transaction is a commercial activity or an exercise of sovereign
authority.
 TANADA v. ANGARA (Elach)
May 2, 1997 | Panganiban, J. | Doctrine of incorporation applied with regard to
obligations arising from ratification of WTO
PETITIONERS: Wigberto E. Tañada and Anna Dominique Coseteng, As
Members Of The Philippine Senate And As Taxpayers
RESPONDENTS: Edgardo Angara, Alberto Romulo, Leticia Ramos-Shahani,
Heherson Alvarez, Agapito Aquino, Rodolfo Biazon, Neptali Gonzales, Ernesto
Herrera, Jose Lina, Gloria Macapagal-Arroyo, Orlando Mercado, Blas Ople,
John Osmea, Santanina Rasul, Ramon Revilla, Raul Roco, Francisco Tatad And
Freddie Webb, In Their Respective Capacities As Members Of The Philippine
Senate Who Concurred In The Ratification By The President Of The Philippines
Of The Agreement Establishing The World Trade Organization
SUMMARY: This is a petition seeking to nullify the Philippine ratification of
the World Trade Organization (WTO) Agreement. Petitioners question the
concurrence of herein respondents acting in their capacities as Senators via
signing the said agreement. The WTO opens access to foreign markets,
especially its major trading partners, through the reduction of tariffs on its
exports, particularly agricultural and industrial products. Thus, provides new
opportunities for the service sector cost and uncertainty associated with
exporting and more investment in the country. These are the predicted benefits
as reflected in the agreement and as viewed by the signatory Senators, a “free
market” espoused by WTO. Petitioners on the other hand viewed the WTO
agreement as one that limits, restricts and impair Philippine economic
sovereignty and legislative power. That the Filipino First policy of the
Constitution was taken for granted as it gives foreign trading intervention. The
issue in this case is whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the Senate in giving its
concurrence of the said WTO agreement.
In its Declaration of Principles and state policies, the Constitution “adopts the
generally accepted principles of international law as part of the law of the land,
and adheres to the policy of peace, equality, justice, freedom, cooperation and
amity, with all nations. By the doctrine of incorporation, the country is bound by
generally accepted principles of international law, which are considered
automatically part of our own laws. Pacta sunt servanda – international
agreements must be performed in good faith. A treaty is not a mere moral
obligation but creates a legally binding obligation on the parties.
Through WTO the sovereignty of the state cannot in fact and reality be
considered as absolute because it is a regulation of commercial relations among
nations. Such as when Philippines joined the United Nations (UN) it consented
to restrict its sovereignty right under the “concept of sovereignty as
autolimitation.” What Senate did was a valid exercise of authority. As to
determine whether such exercise is wise, beneficial or viable is outside the realm
of judicial inquiry and review. The act of signing the said agreement is not a
legislative restriction as WTO allows withdrawal of membership should this be
the political desire of a member. Also, it should not be viewed as a limitation of
economic sovereignty. WTO remains as the only viable structure for multilateral
trading and the veritable forum for the development of international trade law.
Its alternative is isolation, stagnation if not economic self-destruction. Thus, the
people be allowed, through their duly elected officers, make their free choice.
DOCTRINE: The alleged impairment of sovereignty in the exercise of
legislative and judicial powers is balanced by the adoption of the generally
accepted principles of international law as part of the law of the land and the
adherence of the Constitution to the policy of cooperation and amity with all
nations. The Senate, after deliberation and voting, voluntarily and
overwhelmingly gave its consent to the WTO Agreement thereby making it “a
part of the law of the land” is a legitimate exercise of its sovereign duty and
power.
By the doctrine of incorporation, the country is bound by generally accepted
principles of international law, which are considered to be automatically part of
our own laws. One of the oldest and most fundamental rules in international law
is pacta sunt servanda -- international agreements must be performed in good
faith. A treaty engagement is not a mere moral obligation but creates a legally
binding obligation on the parties. A state which has contracted valid
international obligations is bound to make in its legislations such modifications
as may be necessary to ensure the fulfillment of the obligations undertaken.
FACTS:
1. Like many other developing countries, the Philippines joined World Trade
Organization as a founding member with the goal, as articulated by
President Fidel V. Ramos in two letters to the Senate (infra), of improving
Philippine access to foreign markets, especially its major trading partners,
through the reduction of tariffs on its exports.
2. Instant petition before this Court assails the WTO Agreement for violating
the mandate of the 1987 Constitution to develop a self-reliant and
independent national economy effectively controlled by Filipinos x x x (to)
give preference to qualified Filipinos (and to) promote the preferential use
of Filipino labor, domestic materials and locally produced goods.
3. Arguing mainly that the (1) WTO requires the Philippines to place nationals
and products of member-countries on the same footing as Filipinos and
local products and (2) that the WTO intrudes, limits and/or impairs the
constitutional powers of both Congress and the Supreme Court.
4. On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The
Department of Trade and Industry, representing the Government of the
Republic of the Philippines, signed in Marrakesh, Morocco, the Final Act
Embodying the Results of the Uruguay Round of Multilateral Negotiations
(Final Act, for brevity).
 5. This act makes the Philippines one of the founding members of the WTO.
6. On August 12, 1994, the members of the Philippine Senate received a letter
dated August 11, 1994 from the President of the Philippines, stating among
others that "the Uruguay Round Final Act is hereby submitted to the Senate
for its concurrence pursuant to Section 21, Article VII of the Constitution."
7. On August 13, 1994, the members of the Philippine Senate received another
letter from the President of the Philippines likewise dated August 11, 1994,
which stated among others that "the Uruguay Round Final Act, the
Agreement Establishing the World Trade Organization, the Ministerial
Declarations and Decisions, and the Understanding on Commitments in
Financial Services are hereby submitted to the Senate for its concurrence
pursuant to Section 21, Article VII of the Constitution."
8. On December 9, 1994, the President of the Philippines certified the
necessity of the immediate adoption of P.S. 1083, a resolution entitled
"Concurring in the Ratification of the Agreement Establishing the World
Trade Organization."
9. On December 14, 1994, the Philippine Senate adopted Resolution No. 97
which "Resolved, as it is hereby resolved, that the Senate concur, as it
hereby concurs, in the ratification by the President of the Philippines of the
Agreement Establishing the World Trade Organization."
10. On December 16, 1994, the President Fidel Ramos signed the Instrument of
Ratification, declaring the Agreement Establishing the World Trade
Organization and the agreements and associated legal instruments included
in the Annexes/Multilateral Trade Agreements ratified and confirmed.
11. On December 29, 1994, the present petition was filed. The Court resolved
on December 12, 1995, to give due course to the petition.
ISSUE/s
Whether or not the Resolution No. 97 ratifying the WTO Agreement is
unconstitutional – NO
RULING: WHEREFORE, the petition is DISMISSED for lack of merit.
RATIO:
The WTO Agreement and Legislative Power
1. The WTO Agreement provides that each Member shall ensure the
conformity of its laws, regulations and administrative procedures with its
obligations as provided in the annexed Agreements.
2. Petitioners maintain that this undertaking unduly limits, restricts and
impairs Philippine sovereignty, specifically the legislative power which
under Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the
Congress of the Philippines.
3. It is an assault on the sovereign powers of the Philippines because this
means that Congress could not pass legislation that will be good for our
national interest and general welfare if such legislation will not conform
with the WTO Agreement, which not only relates to the trade in goods but
also to the flow of investments and money as well as to a whole slew of
agreements on socio-cultural matters.
4. More specifically, petitioners claim that said WTO proviso derogates from
the power to tax, which is lodged in the Congress. And while the
Constitution allows Congress to authorize the President to fix tariff rates,
import and export quotas, tonnage and wharfage dues, and other duties or
imposts, such authority is subject to specified limits and such limitations
and restrictions as Congress may provide, as in fact it did under Sec. 401 of
the Tariff and Customs Code.
Sovereignty Limited by International Law and Treaties
5. This Court notes and appreciates the ferocity and passion by which
petitioners stressed their arguments on this issue.
6. However, while sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is however subject to restrictions
and limitations voluntarily agreed to by the Philippines, expressly or
impliedly, as a member of the family of nations.
7. Unquestionably, the Constitution did not envision a hermit-type isolation of
the country from the rest of the world. In its Declaration of Principles and
State Policies, the Constitution adopts the generally accepted principles of
international law as part of the law of the land, and adheres to the policy of
peace, equality, justice, freedom, cooperation and amity, with all nations."
8. By the doctrine of incorporation, the country is bound by generally accepted
principles of international law, which are considered to be automatically
part of our own laws.
9. One of the oldest and most fundamental rules in international law is pacta
sunt servanda -- international agreements must be performed in good faith.
A treaty engagement is not a mere moral obligation but creates a legally
binding obligation on the parties. A state which has contracted valid
international obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of the
obligations undertaken.
10. By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of
their state power in exchange for greater benefits granted by or derived from
a convention or pact.
11. After all, states, like individuals, live with coequals, and in pursuit of
mutually covenanted objectives and benefits, they also commonly agree to
limit the exercise of their otherwise absolute rights.
12. Thus, treaties have been used to record agreements between States
concerning such widely diverse matters as, for example, the lease of naval
bases, the sale or cession of territory, the termination of war, the regulation
of conduct of hostilities, the formation of alliances, the regulation of
commercial relations, the settling of claims, the laying down of rules
 governing conduct in peace and the establishment of international
organizations.
13. The sovereignty of a state therefore cannot in fact and in reality be
considered absolute. Certain restrictions enter into the picture: (1)
limitations imposed by the very nature of membership in the family of
nations and (2) limitations imposed by treaty stipulations. As aptly put by
John F. Kennedy, Today, no nation can build its destiny alone. The age of
self-sufficient nationalism is over. The age of interdependence is here.
UN Charter and Other Treaties Limit Sovereignty
14. Thus, when the Philippines joined the United Nations as one of its 51
charter members, it consented to restrict its sovereign rights under the
concept of sovereignty as auto-limitation.47-A Under Article 2 of the UN
Charter, all members shall give the United Nations every assistance in any
action it takes in accordance with the present Charter, and shall refrain from
giving assistance to any state against which the United Nations is taking
preventive or enforcement action.
15. Such assistance includes payment of its corresponding share not merely in
administrative expenses but also in expenditures for the peace-keeping
operations of the organization. In its advisory opinion of July 20, 1961, the
International Court of Justice held that money used by the United Nations
Emergency Force in the Middle East and in the Congo were expenses of the
United Nations under Article 17, paragraph 2, of the UN Charter.
16. Hence, all its members must bear their corresponding share in such
expenses.
17. In this sense, the Philippine Congress is restricted in its power to
appropriate. It is compelled to appropriate funds whether it agrees with such
peace-keeping expenses or not. So too, under Article 105 of the said
Charter, the UN and its representatives enjoy diplomatic privileges and
immunities, thereby limiting again the exercise of sovereignty of members
within their own territory. Another example: although sovereign equality
and domestic jurisdiction of all members are set forth as underlying
principles in the UN Charter, such provisos are however subject to
enforcement measures decided by the Security Council for the maintenance
of international peace and security under Chapter VII of the Charter. A final
example: under Article 103, (i)n the event of a conflict between the
obligations of the Members of the United Nations under the present Charter
and their obligations under any other international agreement, their
obligation under the present charter shall prevail, thus unquestionably
denying the Philippines -- as a member -- the sovereign power to make a
choice as to which of conflicting obligations, if any, to honor.
In sum:
The Supreme Court ruled the Resolution No. 97 is constitutional. While the
constitution mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the
rest of the world on the bases of equality and reciprocity and limits protection of
Filipino interests only against foreign competition and trade practices that are unfair.
In other words, the Constitution did not intend to pursue an isolationalist policy.
Furthermore, the constitutional policy of a “self-reliant and independent national
economy” does not necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither “economic seclusion” nor “mendicancy in the
international community.”
The Senate, after deliberation and voting, gave its consent to the WTO Agreement
thereby making it “a part of the law of the land”. The Supreme Court gave due
respect to an equal department in government. It presumes its actions as regular and
done in good faith unless there is convincing proof and persuasive agreements to the
contrary. As a result, the ratification of the WTO Agreement limits or restricts the
absoluteness of sovereignty. A treaty engagement is not a mere obligation but creates
a legally binding obligation on the parties. A state which has contracted valid
international obligations is bound to make its legislations such modifications as may
be necessary to ensure the fulfillment of the obligations undertaken.
The Philippines has effectively agreed to limit the exercise of its sovereign powers of
taxation, eminent domain and police power. The underlying consideration in this
partial surrender of sovereignty is the reciprocal commitment of the other contracting
states in granting the same privilege and immunities to the Philippines, its officials
and its citizens. The same reciprocity characterizes the Philippine commitments
under WTO-GATT.
International treaties, whether relating to nuclear disarmament, human rights, the
environment, the law of the sea, or trade, constrain domestic political sovereignty
through the assumption of external obligations. But unless anarchy in international
relations is preferred as an alternative, in most cases we accept that the benefits of
the reciprocal obligations involved outweigh the costs associated with any loss of
political sovereignty. Trade treaties that structure relations by reference to durable,
well-defined substantive norms and objective dispute resolution procedures reduce
the risks of larger countries exploiting raw economic power to bully smaller
countries, by subjecting power relations to some form of legal ordering. In addition,
smaller countries typically stand to gain disproportionately from trade liberalization.
This is due to the simple fact that liberalization will provide access to a larger set of
potential new trading relationship than in case of the larger country gaining enhanced
success to the smaller countrys market.
The point is that, as shown by the foregoing treaties, a portion of sovereignty may be
waived without violating the Constitution, based on the rationale that the Philippines
adopts the generally accepted principles of international law as part of the law of the
land and adheres to the policy of cooperation and amity with all nations.
 MIJARES v. RANADA (DANNAH)
12 April 2005 | Tinga, J. | Enforcement of a Foreign Judgment
PETITIONER: Priscilla Mijares et al. in their behalf and on behalf of the Class Plaintiffs
in Class Action No. MDL840, US District Court of Hawaii
RESPONDENTS: Hon. Santiago Ranada, The Estate of Ferdinand Marcos et al.
SUMMARY: Mijares et al., (petitioners), are prominent victims of human rights during
the Marcos regime. They filed a civil case in the RTC of Makati enforing a judgment of
the US District Court in Hawaii awarding the plaintiffs in that case (it was a class suit)
around $1.9Billion (but later in the facts it stated that what they sought to enforce was
$2.25Billion na).
The Marcos Estate filed a motion to dismiss on the ground that Mijares et al. did not pay
the proper filing fees (they paid P410 only, on the ground that the action is incapable of
pecuniary estimation as it is an action enforcing a foreign judgment, while the Marcos
Estate believes they should pay P472M since it’s an enforcement of a monetary claim
which is capable of pecuniary estimation). Judge Ranada then dismissed the case and
denied Mijares et al’s MR. The case was then elevated to the Supreme Court.
The Court ruled that perhaps in theory, such an action is primarily for the enforcement of
the foreign judgment, but there is a certain obtuseness to that sort of argument since there
is no denying that the enforcement of the foreign judgment will necessarily result in the
award of a definite sum of money. The complaint to enforce the US District Court
judgment is one capable of pecuniary estimation. But at the same time, it is also an action
based on judgment against an estate, thus placing it beyond the ambit of Section 7(a) of
Rule 141. Hence the applicable rule would be Rule 141 Section 7(b)(3) because it is an
action not involving property. The amount paid as docket fees by Mijares et al. on the
premise that it was an action incapable of pecuniary estimation corresponds to the same
amount required for other actions not involving property.
The Court also discussed enforcement of foreign judgments in local courts. There is no
hard and fast rule and states have different procedures for such. But although there is no
express rule discussing the procedure to be taken, relative to the enforcement of foreign
judgments in the Philippines, it emerges that there is a general right recognized within our
body of laws, and affirmed by the Constitution, to seek recognition and enforcement of
foreign judgments, as well as a right to defend against such enforcement on the grounds
of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of
law or fact.
DOCTRINE: There is no obligatory rule derived from treaties or conventions that
requires the Philippines to recognize foreign judgments, or allow a procedure for the
enforcement thereof. However, generally accepted principles of international law, by
virtue of the incorporation clause of the Constitution, form part of the laws of the land
even if they do not derive from treaty obligations.
FACTS:
8. Mijares et al. are prominent victims of human rights.
9. On May 1991, a complaint was filed with the US District Court in Hawaii
against the Estate of Marcos (Marcos Estate).
10. The action was brought by 10 Filipino citizens who each alleged having
suffered human rights abuses during the Marcos regime.
11. The Alien Tort Act was invoked as basis for the US Distrcit Courts
jurisdiction over the complaint, as it involved a suit by aliens for tortious
violations of international law.
12. Mijares et al. allege that the class of similarly situated individuals consisted
of approximately 10,000 members hence joinder of all these persons was
impracticable.
13. The US District Court certified the case as a class action and created three
(3) sub- classes of torture, summary execution and disappearance victims.
14. A judgment in favor of Mijares et al. was rendered awarding them
$1,964,005,859.9. The final judgment was eventually affirmed by the US
CA for the 9th Circuit.
15. On May 1997, Mijares et al. filed a complaint with the RTC of Makati for
the enforcement of the final judgment.
16. On February 1998, the Marcos Estate filed a motion to dismiss raising
among others non-payment of the correct filing fees. IT alleged that Mijares
et al. only aid P410 as docket and filing fees, even if they sought to enforce
a monetary amount of over $2.25Billion.
17. On September 1998, Judge Ranada issued the order dismissing the
complaint. He opined that the subject matter was capable of pecuniary
estimation as it involved a judgment rendered by a foreign court ordering
the payment of definite sums of money, allowing for easy determination of
the value of the foreign judgment.
18. Hence, the proper amount as filing fees to be paid was P472M, which has
not been paid.
19. Mijares et al. filed an MR which Judge Ranada denied, hence they filed a
Petition for Certiorari praying for the annulment of Judge Ranada’s orders.
20. They aver that their action is incapable of pecuniary estimation as the
subject matter of the suit is the enforcement of a foreign judgment, and not
an action for the collection of a sum of money or recovery of damages.
21. They also invoke Section 11, Article III of the Bill of Rights of the
Constitution, which provides that Free access to the courts and quasi-
judicial bodies and adequate legal assistance shall not be denied to any
person by reason of poverty.
22. The CHR was permitted to intervene in the case. For the CHR, the Makati
RTC erred in interpreting the action for the execution of a foreign judgment
as a new case, in violation of the principle that once a case has been decided
between the same parties in one country on the same issue with finality, it
can no longer be relitigated again in another country.
23. The CHR also invokes the principle of comity and of vested rights.
ISSUE/s:
7. WoN the enforcement of the foreign judgment requires payment of filing
fees of P472M – NO, the P410 is proper.
RULING: WHEREFORE, the petition is GRANTED. The assailed orders are NULLIFIED and
SET ASIDE, and a new order REINSTATING Civil Case No. 97-1052 is hereby issued. No costs.
RATIO:
1. In dismissing the complaint, the respondent judge relied on Section 7(a),
Rule 141
2. The provision covers on one hand, ordinary actions, permissive
counterclaims, third-party, etc. complaints and complaints-in-interventions,
and on the other, money claims against estates which are not based on
judgment.
3. Mijares et al. rely on Section 7(b), particularly the proviso on actions where
the value of the subject matter cannot be estimated.
4. However, this also does not apply in the case at hand, since neither the
complaint nor the award of damages adjudicated by the US District Court
involves any real property of the Marcos Estate.
5. The rules of comity, utility and convenience of nations have established a
usage among civilized states by which final judgments of foreign courts of
competent jurisdiction are reciprocally respected and rendered efficacious
under certain conditions that may vary in different countries.
6. The conditions required by the Philippines for recognition and enforcement
of a foreign judgment were originally contained in Section 311 of the Code
of Civil Procedure, which was taken from the California Code of Civil
Procedure which states
a. Sec. 48. Effect of foreign judgments. The effect of a judgment of a tribunal of
a foreign country, having jurisdiction to pronounce the judgment is as follows:
b. (a) In case of a judgment upon a specific thing, the judgment is conclusive
upon the title to the thing;
c. (b) In case of a judgment against a person, the judgment is presumptive
evidence of a right as between the parties and their successors in interest by a
subsequent title;
d. In either case, the judgment or final order may be repelled by evidence of a
want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.
7. There is an evident distinction between a foreign judgment in an action in
rem and one in personam. For an action in rem, the foreign judgment is
deemed conclusive upon the title to the thing, while in an action in
personam, the foreign judgment is presumptive, and not conclusive, of a
right as between the parties and their successors in interest by a subsequent
title.
8. In both cases, the foreign judgment is susceptible to impeachment in our
local courts on the grounds of wnt of jurisdiction or notice to the party,
collusion, fraud, or clear mistake of law or fact. Hence, the party aggrieved
by the judgment is entitled to defend against enforcement in the local
forum.
9. It is usually necessary for an action to be filed in order to enforce a foreign
judgment even if such has conclusive effect as in the case of in rem actions,
for the prupose of allowing the losing party an opportunity to challenge
such judgment, and in order for the court to properly determine its efficacy.
10. The party attacking a foreign judgment has the burden of overcoming
the presumption of validity.
11. The rules are silent as to how to initiate enforcing a foreign judgment but
there is no question that the filing of a civil complaint is an appropriate
measure for such purpose.
12. This is because of the similarity between a civil action and an action to
enforce a foreign judgment because the latter is in essence a vindication of a
right prescinding either from a conclusive judgment upon title or the
presumptive evidence of a right.
13. Mijares et al. rely upon the proposition that the subject matter of the
complaint (enforcement of a foreign judgment) is incapable of pecuniary
estimation. However, as it applies in this case, it is counter-intuitive.
14. For in all practical intents and purposes, the matter at hand is capable of
pecuniary estimation, down to the last cent.
15. <Court differentiated actions capable of pecuniary estimation and those
which are incapable by citing cases…>
16. While the subject matter of the action is undoubtedly the enforcement of a
foreign judgment, the effect of a providential award would be the
adjudication of a sum of money.
17. Perhaps in theory, such an action is primarily for the enforcement of the
foreign judgment, but there is a certain obtuseness to that sort of argument
since there is no denying that the enforcement of the foreign judgment will
necessarily result in the award of a definite sum of money.
18. The complaint to enforce the US District Court judgment is one capable of
pecuniary estimation. But at the same time, it is also an action based on
judgment against an estate, thus placing it beyond the ambit of Section 7(a)
of Rule 141.
19. The Court finds that it is covered by Section 7(b)(3), involving as it does,
other actions not involving property.
20. The amount paid as docket fees by Mijares et al. on the premise that it was
an action incapable of pecuniary estimation corresponds to the same amount
required for other actions not involving property.
21. Mijares et al. thus paid the correct amount of filing fees, and it was a grave
abuse of discretion for respondent judge to have applied instead a clearly
inapplicable rule and dismissed the complaint.
Additional discussion on international law
1. There have been attempts to codify through treaties or multilateral
agreements the standards for the recognition and enforcement of foreign
judgments, but these have not borne fruition.
2. The members of the European Common Market accede to theJudgments
Convention, signed in 1978, which eliminates as to participating countries
all of such obstacles to recognition such as reciprocity and rvision au fond.
3. The most ambitious of these attempts is the Convention on the Recognition
and Enforcement of Foreign Judgments in Civil and Commercial Matters,
 prepared in 1966 by the Hague Conference of International Law. the Court can assert with certainty that such an undertaking is among those
4. Neither the Philippines nor the United States are signatories to the generally accepted principles of international law.
Convention. 16. Aside from the widespread practice, it is indubitable that the procedure for
5. Even if there is no unanimity as to the applicable theory behind the recognition and enforcement is embodied in the rules of law, whether
recognition and enforcement of foreign judgments or a universal treaty statutory or jurisprudential, adopted in various foreign jurisdictions. In the
rendering it obligatory force, there is consensus that the viability of such Philippines, this is evidenced primarily by Section 48, Rule 39 of the Rules
recognition and enforcement is essential. of Court which has existed in its current form since the early 1900s.
6. According to Salonga, 17. There may be distinctions as to the rules adopted by each particular state,
• “Whatever be the theory as to the basis for recognizing foreign judgments, but they all prescind from the premise that there is a rule of law obliging
there can be little dispute that the end is to protect the reasonable expectations states to allow for, however generally, the recognition and enforcement of a
and demands of the parties. Where the parties have submitted a matter for
foreign judgment.
adjudication in the court of one state, and proceedings there are not tainted
with irregularity, they may fairly be expected to submit, within the state or 18. The bare principle, to our mind, has attained the status of opinio juris in
elsewhere, to the enforcement of the judgment issued by the court” international practice.
7. There is also consensus as to the requisites for recognition of a foreign 19. Thus, relative to the enforcement of foreign judgments in the Philippines, it
judgment and the defenses against the enforcement thereof. emerges that there is a general right recognized within our body of laws,
8. The requisites and exceptions as delineated under Section 48 (See Ratio 6) and affirmed by the Constitution, to seek recognition and enforcement of
are but a restatement of generally accepted principles of international law. foreign judgments, as well as a right to defend against such enforcement on
9. Section 98, The Restatement, Second, Conflict of Laws: the grounds of want of jurisdiction, want of notice to the party, collusion,
• A valid judgment rendered in a foreign nation after a fair trial in a contested fraud, or clear mistake of law or fact.
proceeding will be recognized in the United States, and on its face, the term 20. As crafted, Rule 141 of the Rules of Civil Procedure avoids
valid brings into play requirements such notions as valid jurisdiction over the unreasonableness, as it recognizes that the subject matter of an action for
subject matter and parties.
enforcement of a foreign judgment is the foreign judgment itself, and not
10. The notion that fraud or collusion may preclude the enforecemnt of a the right-duty correlatives that resulted in the foreign judgment.
foreign judgment finds affirmation with foreign jurisprudence and 21. However, it bears noting that Section 48, Rule 39 acknowledges that the
commentators, as well as the doctrine that the foreign judgment must not Final Judgment is not conclusive yet, but presumptive evidence of a right of
constitute a clear mistake of fact or law the petitioners against the Marcos Estate. Moreover, the Marcos Estate is
11. Public policy as a defense to the recognition of judgments serves as an not precluded to present evidence, if any, of want of jurisdiction, want of
umbrella for a variety of concerns in international practice which may lead notice to the party, collusion, fraud, or clear mistake of law or fact.
to a denial of recognition.
12. The viability of said policy has been recognized in this jurisdiction. This
defense allows for the application of local standards in reviewing the
foreign judgment, especially when such judgment creates only a
presumptive right, as it does in cases wherein the judgment is against a
person.
13. There is no obligatory rule derived from treaties or conventions that
requires the Philippines to recognize foreign judgments, or allow a
procedure for the enforcement thereof. However, generally accepted
principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive
from treaty obligations.
14. The classical formulation in international law sees those customary rules
accepted as binding result from the combination two elements: the
established, widespread, and consistent practice on the part of States; and a
psychological element known as the opinion juris sive necessitates (opinion
as to law or necessity).
15. While the definite conceptual parameters of the recognition and
enforcement of foreign judgments have not been authoritatively established,
 037 MEDELLIN vs. TEXAS (SEE)
March 25, 2008 | Roberts, J. | Vienna Convention
PETITIONER: Jose Ernesto Medellin
RESPONDENTS: Supreme Court of the United States
SUMMARY: Medellin together with his gang, raped 2 girls. He was arrested and
was convicted of murder and sentenced to death. Upon his arrest, the officers failed
to inform him of his right under the Vienna Convention to notify the Mexican
consulate of his detention. He only raised this on appeal but the state trial court held
that the claim was procedurally defaulted because he had failed to raise it at trial or
on direct review. Pending his appeal, the ICJ decided on the case (Avena case) and
ruled that his right under the convention was violated but the domestic courts still
refused to apply the ICJ decision. The issue is WoN the ICJ decision on Avena has
automatic domestic legal effect.-NO because not all treaties are self-executory and
becomes domestic law automatically. The SC held that Article 94 of the convention
does not provide that the US “shall” or “must” comply with an ICJ decision, nor
indicate that the Senate that ratified the U. N. Charter intended to vest ICJ decisions
with immediate legal effect in domestic courts. Instead, “[t]he words of Article 94 . .
. call upon governments to take certain action.”
DOCTRINE: There are various kinds of treaties. Some have automatic effect of
becoming domestic law while others do not. The Vienna Convention is not self-
executory and does not convert ICJ decision into domestic law automatically.
FACTS:
1. Petitioner José Ernesto Medellín, a Mexican national, has lived in the
United States since preschool. A member of the “Black and Whites” gang,
Medellín was convicted of capital murder and sentenced to death in Texas
for the gang rape and brutal murders of two Houston teenagers.
2. 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena were walking
home when they encountered Medellín and several fellow gang members.
Medellín attempted to engage Elizabeth in conversation. When she tried to
run, petitioner threw her to the ground. Jennifer was grabbed by other gang
members when she, in response to her friend’s cries, ran back to help. The
gang members raped both girls for over an hour. Then, to prevent their
victims from identifying them, Medellín and his fellow gang members
murdered the girls and discarded their bodies in a wooded area. Medellin
even strangled one of the girls with her shoelace.
3. He was arrested and informed of his Miranda rights but not of his Vienna
Convention right to notify the Mexican consulate of his detention. He was
convicted of murder and sentenced to death. The decision was affirmed
upon appeal.
4. He then raised his Vienna Convention right in his first application for state
postconviction relief. The state trial court held that the claim was
procedurally defaulted because Medellín had failed to raise it at trial or on
direct review. The trial court also rejected the Vienna Convention claim on
the merits, finding that Medellín had “fail[ed] to show that any non-
notification of the Mexican authorities impacted on the validity of his
conviction or punishment.”
5. The District Court also denied relief. So he appealed to the Fifth Circuit.
While his appeal was pending, the International Court of Justice (ICJ)
released its decision in the Avena case (case of gang rape by the 51
Mexicans, Medellin and his gang). The ICJ held that the US had violated
Article 36(1)(b) of the Vienna Convention by failing to inform the 51
named Mexican nationals, including Medellín, of their Vienna Convention
rights.
6. The 5th Circuit then denied the appeal concluding that the Vienna
Convention did not confer individually enforceable rights. The SC granted
certiorari but before oral arguments were heared, President Bush issued a
Memorandum stating that the State will discharge its international
obligations under the Avena decision of the ICJ. The State courts are to give
effect to the ICJ decision.
7. Medellin, relying on the memo filed a 2nd application for habeas relief in
state court. This was dismissed. The Texas Court of Criminal Appeals also
dismissed it stating that the ICJ decision and the memo is not binding
federal law.
ISSUE/s:
1. WoN the ICJ decision on Avena has automatic domestic legal effect.-NO
because not all treaties are self-executory and becomes domestic law
automatically.
RULING: The judgment of the Texas Court of Criminal Appeals is affirmed.
RATIO:
61. The US, upon the advice and consent of the Senate, ratified the Vienna
Convention. Article 36 provides that if a person detained by a foreign
country “so requests, the competent authorities of the receiving State shall,
without delay, inform the consular post of the sending State” of such
detention, and “inform the [detainee] of his righ[t]” to request assistance
from the consul of his own state.
62. The Optional Protocol provides a venue for the resolution of disputes
arising out of the interpretation or application of the Vienna Convention.
Under the Protocol, such disputes “shall lie within the compulsory
jurisdiction of the International Court of Justice” and “may accordingly be
brought before the [ICJ] … by any party to the dispute being a Party to the
present Protocol.”
63. Under Article 94(1), “[e]ach Member of the United Nations undertakes to
comply with the decision of the [ICJ] in any case to which it is a party.”
The ICJ’s jurisdiction in any particular case, however, is dependent upon
the consent of the parties.
64. The US first agreed to general jurisdiction meaning it will consent generally
to the jurisdiction of the ICJ but later withdrew and consented to specific
jurisdiction.
65. The Court held that there are various kinds of treaties. Some have automatic
effect of becoming domestic law while others do not.
66. Since the US signed the Optional Protocol, it agreed to submit disputes
arising out of the Viena Convention to the ICJ. But submitting to
jurisdiction is different from agreeing to being bound by the decision.
67. The obligation on the part of signatory nations to comply with ICJ
judgments derives not from the Optional Protocol, but rather from Article
94 of the United Nations Charter—the provision that specifically addresses
the effect of ICJ decisions.
68. Article 94 is not a directive to domestic courts. It does not provide that the
US “shall” or “must” comply with an ICJ decision, nor indicate that the
Senate that ratified the U. N. Charter intended to vest ICJ decisions with
immediate legal effect in domestic courts. Instead, “[t]he words of Article
94 . . . call upon governments to take certain action.” Remedy for non-
compliance is merely to refer the issue to the UN Security Council.
69. If ICJ judgments were instead regarded as automatically enforceable
domestic law, they would be immediately and directly binding on state and
federal courts pursuant to the Supremacy Clause. Mexico or the ICJ would
have no need to proceed to the Security Council to enforce the judgment in
this case. Noncompliance with an ICJ judgment through exercise of the
Security Council veto—always regarded as an option by the Executive and
ratifying Senate during and after consideration of the U. N. Charter,
Optional Protocol, and ICJ Statute—would no longer be a viable
alternative. There would be nothing to veto.
70. So Medellin’s view that ICJ decisions are immediately enforceable as
domestic law is erroneous.
71. Also, the ICJ can hear disputes between nations only and decisions are
binding only to those nations and in respect of that particular case only.
72. The conclusion that Avena does not by itself constitute binding federal law
is confirmed by the “postratification understanding” of signatory nations.
Out of 47 nations who signed the Optional Protocol, none of them treats ICJ
decisions as binding in domestic courts.
73. Also, Medellín’s interpretation would allow ICJ judgments to override
otherwise binding state law; there is nothing in his logic that would exempt
contrary federal law from the same fate.
74. The Court does not suggest that treaties can never afford binding domestic
effect to international tribunal judgments—only that the U. N. Charter, the
Optional Protocol, and the ICJ Statute do not do so.
75. The president’s memo does not alter the decision of the court that the ICJ
decision is not domestic law.
76. The President’s authority to act, as with the exercise of any governmental
power, “must stem either from an act of Congress or from the Constitution
itself.” The President has an array of political and diplomatic means
available to enforce international obligations, but unilaterally converting a
non-self-executing treaty into a self-executing one is not among them. The
responsibility for transforming an international obligation arising from a
non-self-executing treaty into domestic law falls to Congress.
77. The Constitution vests the President with the authority to “make” a treaty. If
the Executive determines that a treaty should have domestic effect of its
own force, that determination may be implemented “in mak[ing]” the treaty,
by ensuring that it contains language plainly providing for domestic
enforceability. If the treaty is to be self-executing in this respect, the Senate
must consent to the treaty by the requisite two-thirds vote, consistent with
all other constitutional restraints.
78. Even if the Court takes it that congressional acquiescence could support the
President’s asserted authority to create domestic law pursuant to a non-self-
executing treaty, such acquiescence does not exist here. The US first locates
congressional acquiescence in Congress’s failure to act following the
President’s resolution of prior ICJ controversies. A review of the
Executive’s actions in those prior cases, however, cannot support the claim
that Congress acquiesced in this particular exercise of Presidential
authority, for none of them remotely involved transforming an international
obligation into domestic law and thereby displacing state law.
Concurring, Stevens, J.:
1. Justice Stevens concurred with the majority, but in his concurring opinion
he stated that even though he concurs with the result of majority he thinks
"this case presents a closer question than the Court's opinion allows."
2. While the President could not legislate on his own, the Court should have
been more willing to consider whether the treaties mentioned were indeed
self-executing.
Dissenting, Breyers, J. Souter and Ginsberg join.:
1. the dissenters grounded their position in the Supremacy Clause, arguing
both that treaties were the supreme law of the land binding on all courts and
that the relevant treaties were, in fact, self-executing and therefore did not
require additional legislative or executive action to enable Courts to comply
with international demands.
2. That based on historical example12, there is a strong presumption that
treaties be interpreted as self-executing.
3. Also, they stated that the President was merely trying to comply with
international obligations and absence of Congressional action should not
hinder compliance with international obligations.
12 Ware vs. Hylton- “all treaties… shall be the supreme law of the land.” In this case, the Supreme Court
had agreed with a British creditor that a provision of the Treaty of Paris of 1783, which had been ratified
by the United States's Congress of the Confederation, overruled a Virginia state law regarding the
repayment of debts to Britons; and, as the treaty was "addressed to the Judicial Branch", Congress had
not had to enact a domestic law enforcing the treaty provision.
 WRITINGS AND OTHER SOURCES
LEGAL STATUS OF EASTERN GREENLAND CASE (DENMARK v.
NORWAY) (SIAPNO)
1933 |President Adatci| Treaties
PETITIONER: DENMARK
RESPONDENTS: NORWAY
SUMMARY: A suit was instituted before the Permanent Court of International
Justice (PCIJ) by Royal Danish Government against the Royal Norwegian Gov’t
over the legal status of certain territories in Eastern Greenland. The Norwegian
Minister for Foreign Affairs to the Danish Minister at Oslo, the Norwegian
Government stated in its Royal Resolution (July 10th, 1931) that the occupation
in the Eastern Greenland is officially confirmed and is placed under
Norwegian sovereignty. The Danish Government informed the Norwegian
Government that it had submitted the question on the same day to the Permanent
Court of International Justice. The Danish Gov’t contends that (1) Denmark had
enjoyed and had peacefully and continuously exercised an uncontested sovereignty
over Greenland for a long time (up till 1921, no Power disputed the Danish claim to
sovereignty) (2) Norway had recognized Danish sovereignty over the whole
Greenland (through conventions and treaties) and (3) that the Norway is bound by
the Ihlen Declaration (Fact#16 but this basically talks about how the Norwegian
Minister bound Norway by saying that the Danish sovereignty over the whole of
Greenland would meet with no difficulties on the part of Norway). Norway counters
that Denmark possessed no sovereignty over the area which Norway occupied
because the word "Greenland" is not used in the geographical sense, but means only
the colonies or the colonized area on the West coast and that at the time of the
occupation the area was terra nullius (nobody’s island).
Issue is WoN Eastern Greenland belongs to Norway? The Court ruled that Eastern
Greenland rightfully belongs to Denmark.
The importance of these treaties is that they show a willingness on the part of
the States with which Denmark has contracted to admit her right to exclude
Greenland. To some of these treaties, Norway has herself been a Party, and these
must be dealt with later because they are relied on by Denmark as constituting
binding admissions by Norway that Greenland is subject to Danish sovereignty.
Denmark possesses sovereignty over Greenland as a whole and to the extent that
these treaties constitute evidence of recognition of her sovereignty over Greenland
in general Denmark is entitled to rely upon them.
Norway is now estopped from claiming Greenland because until 1931 there was no
claim by ANY STATE other than Denmark to Greenland, Norwegian government
as undertakings which recognized DANISH over all GREENLAND as evidenced
by hey entered Bilateral and multilateral agreements (Norway and Denmark have
enetered agrrements wherein Greenland was described as Denmark’s colony) and
the existence of the Ihlen Declaration (Norway debarred herself or under obligation
to refrain from contesting a historic Danish sovereignty)
DOCTRINE: Treaties constitute evidence of recognition of sovereignty
FACTS:
1. A suit was instituted before the Permanent Court of International Justice
(PCIJ) by Royal Danish Government against the Royal Norwegian
Government over the legal status of certain territories in Eastern Greenland.
2. Cause of Action for the dispute arose when Norwegian Government
proclaimed that it proceeded to occupy certain territories of Eastern Greenland
which as contented by Denmark are subject to sovereignty of Crown of
Denmark.
7. It is established that Greenland was discovered around 900 A.D. It was
colonized 100 years later. Eric the Red of the Norwegian origin was the best
know colonist. At that time two settlements called Eystribygd and Vestribygd
existed as an independent State for some time; however, latter they became
tributary to the kingdom of Norway in the 13th century. These settlements
disappeared before 1500.
8. From 1814 to 1380 the Kingdoms of Norway and Denmark were united by the
same Crown. Despite disappearance of the early settlements the sovereignty of
the Crown was not doubted.
9. Treaty of Lund of September 27th, 1697 where Sweden recognized the rights
of ancient rights and claims of the King of Denmark over Greenland is an apt
example.
10. The State of Denmark had monopoly over the trade activities in Greenland.
This resulted in establishing colonies, factories or stations along the West coast
latter efforts to reach the East coast were not successful.
11. Norway perceived Greenland as the colonized part of the West coast whereas
Denmark viewed Greenland as encompassing whole island of Greenland.
12. After a war that broke out between Denmark and Sweden and her allies,
Denmark was made to sign the Peace Treaty of Kiel in 1814 according to
which the Kingdom of Norway, excluding Greenland, the Faeroe Isles and
Iceland, was seceded to Sweden.
13. In the 19th century Greenland witnessed lot of Danish expeditions. The Danish
Minister issued a decree specifying the limits of the territorial waters around
Greenland. Denmark promulgated a law concerning the administration of
Greenland in and colonies on the West coast were divided into Northern and
Southern districts. US as a quid pro quo to Denmark's cession of West Indian
Islands declared that it would not object to the Danish Government extending
their political and economic interests to the whole of Greenland.
14. The Danish government in bilateral or multilateral commercial conventions
relating to economic questions had excluded Greenland from the operation of
such conventions to secure the insertion of a stipulation.
15. On July 10th, 1931 by a Norwegian Royal Resolution the King of Norway
declared the occupation of the country in Eastern Greenland between
 Carlsberg Fjord on the south and Bessel Fjord on the north.At the beginning of
the present century, opinion again began to be manifested in favour of the
more effective occupation of the uncolonized areas in Greenland, in order that
the risk of foreign settlement might be obviated.
16. 1915 – Denmark began to seek explicit recognition of her potential claims to
the EASTERN COAST OF GREENLAND
1. 1st – United States – context of CESSION OF THE DANISH ANTILLES
2. 2nd – Norway – context of Norwegian claims to Spitzbergen at Vesailles Peace
Conference
3. 3rd – United Kingdom, France, Italy and Japan
4. 4th – Sweden and Norway
4. At a Peace Conference for the purpose of considering the claims that may be
put forward by different countries to Spitzbergen, and that the Danish
Government would be prepared to renew before this Committee the unofficial
assurance already given to the Norwegian Government that the Danihs Gov’t
would raise no objection to Norway's claims upon that Spitzbergen.
5. The Danish Government felt confident that the extension of its political and
economic interests to the whole of Greenland would not encounter any
difficulties on the part of the Norwegian Government.
6. The Danish Minister saw M. Ihlen, the Norwegian Minister for Foreign
Affairs, who merely replied on this occasion "that the question would be
considered".
7. M. Ihlen made a statement to the Danish Minister to the effect "that the
Norwegian Government would not make any difficulties in the settlement of
this question" (i.e. the question raised on July 14th by the Danish
Government). “The plans of the Royal [Danish] Government respecting
Danish sovereignty over the whole of Greenland .... would meet with no
difficulties on the part of Norway". It is this statement by the Norwegian
Minister for Foreign Affairs which is described in this judgment as the "Ihlen
declaration".
4. The Danish Government approached the Governments in London, Paris,
Rome, Tokyo, and Sweden approved of Denmark's sovereignty over the whole
of Greenland. Each of those Governments replied in terms which satisfied the
Danish Government EXCEPT FOR NORWAY unless it received an
undertaking from the Danish Government that the liberty of hunting and
fishing on the East coast
5. The Danish Government instructed its Minister that no further application was
to be made and said that it would rest content with the verbal undertaking
given by M. Ihlen.
6. CONVENTION: the Danish contention that Denmark possessed full and entire
sovereignty over the whole of Greenland and that Norway had recognized that
sovereignty, and the Norwegian contention that all the parts of Greenland
which had not been occupied in such a manner as to bring them effectively
under the administration of the Danish Government were in the condition of
terra nullius (nobody’s island), and that if they ceased to be terrce nullius they
must pass under Norwegian sovereignty.
7. The Norwegian Minister for Foreign Affairs to the Danish Minister at Oslo,
the Norwegian Government stated that, "having regard to the legal position of
Norway in the proceedings before the Court", it "had felt obliged to proceed, in
virtue of a Royal Resolution” The Royal Resolution (July 10th, 1931)
basically said that the occupation in the Eastern Greenland is officially
confirmed and is placed under Norwegian sovereignty.
8. DANISH APPLICATION: The Danish Government informed the Norwegian
Government that it had submitted the question on the same day to the
Permanent Court of International JusticeThe Danish Gov’t contends:
1. Denmark had enjoyed and had peacefully and continuously exercised an
uncontested sovereignty over Greenland for a long time
- The first is that the sovereignty which Denmark now enjoys over Greenland
has existed for a long time, has been continuously and peacefully exercised
and, until the present dispute, has not been contested by any Power.
2. Norway had recognized DANISH sovereignty over the whole Greenland
- The second proposition is that Norway has by treaty or otherwise herself
recognized Danish sovereignty over Greenland as a whole and therefore
cannot now dispute it.
3. Norway was estopped by QUID PRO QUO, a promise given by the
Norwegian foreign minister to desert occupying any territory in Greenland.
- The Norwegian Minister for Foreign Affairs, speaking on behalf of his
Government, gave to the diplomatic representative of the Danish
Government at Christiania debarred Norway from proceeding to any
occupation of territory in Greenland, even if she had not by other acts
recognized an existing Danish sovereignty there.
9. NORWEGIAN SUBMISSIONS: Denmark possessed no sovereignty over the
area which Norway occupied and that at the time of the occupation the area
was terra nullius. Her contention is that the word "Greenland" is not used in
the geographical sense, but means only the colonies or the colonized area
on the West coast.
ISSUE/s:
WoN Greenland belongs to Denmark – YES, Denmark has exercised sovereignty
continuously and peacefully and Norway is bound by the reply given on its
behalf by its Minister of Foreign Affairs.
RULING: The Court (1) decides that the declaration of occupation promulgated by
the Norwegian Government on July 10th, 1931, and any steps taken in this respect
by that Government, constitute a violation of the existing legal situation and are
accordingly unlawful and invalid; (2) rejects the opposing submissions of the
Norwegian Government; (3) declares that there is no need to deviate from the
general rule laid down in Article 64 of the Statute that each Party will bear its own
costs. 

RATIO:
Denmark had enjoyed and had peacefully and continuously exercised an
uncontested sovereignty over Greenland for a long time
1. The date at which such Danish sovereignty must have existed in order to render
the Norwegian occupation invalid is the date at which the occupation took
place, viz., July 10th, 1931.
2. PALMAS CASE: the basic requirements for the establishment of such a title
are (a) There must be the intention and will to act as sovereign, and some
actual exercise or display of such authority (although very little actual exercise
of authority was necessary, especially in thinly populated or unsettled areas)
and (b)There must be no competing or stronger claim to sovereignty.
3. Court mentioned that claim to sovereignty based not upon some particular act
or title such as a treaty of cession but merely upon continued display of
authority, involves these two elements.
4. One of the peculiar features of the present case is that up to 1931 there was no
claim by any Power other than Denmark to the sovereignty over Greenland.
Indeed, up till 1921, no Power disputed the Danish claim to sovereignty.
5. After the founding of Hans Egede's colonies in 1721, there is in part at least of
Greenland a manifestation and exercise of sovereign rights. Consequently, both
the elements necessary to establish a valid title to sovereignty - the intention
and the exercise - were present, but the question arises as to how far the
operation of these elements extended.
6. The founding of the colonies was accompanied by the grant of a monopoly of
the trade, and before long legislation was found to be necessary to protect and
enforce the monopoly.
7. Norway has argued that in the legislative and administrative acts of the XYIIIth
century on which Denmark relies as proof of the exercise of her sovereignty,
the word "Greenland" is not used in the geographical sense, but means only the
colonies or the colonized area on the West coast. 
 Counsel for Norway adhere to the contention that the word "Greenland" is used
a. This is a point as to which the burden of proof lies on Norway. Norway has not
succeeded in establishing her contention. It is not sufficient for her to show that
in many of these legislative and administrative acts action was only to be taken
in the colonies.
8. The conclusion to which the Court is led is that, bearing in mind the absence of
any claim to sovereignty by another Power, and the Arctic and inaccessible
character of the uncolonized parts of the country, the King of Denmark and
Norway displayed during the period from the founding of the colonies by Hans
Egede in 1721 up to 1814 his authority to an extent sufficient to give his
country a valid claim to sovereignty, and that his rights over Greenland were
not limited to the colonized area.
9. Up to the date of the Treaty of Kiel of 1814, the rights which the King
possessed over Greenland were enjoyed by him as King of Norway. The result
of the Treaty was that what had been a Norwegian possession remained with
the King of Denmark and became for the future a Danish possession. Except in
this respect, the Treaty of Kiel did not affect or extend the King's rights over
Greenland.
10. In order to establish the Danish contention that Denmark has exercised in fact
sovereignty over all Greenland for a long time, Counsel for Denmark have laid
stress on the long series of conventions - mostly commercial in character -
which have been concluded by Denmark and in which, with the concurrence of
the other contracting Party, a stipulation has been inserted to the effect that the
convention shall not apply to Greenland.
11. In the case of multilateral treaties, the stipulation usually takes the form of a
Danish reserve at the time of signature. In date, these conventions cover the
period from 1782 onwards.
12. Article 6 of the Treaty of 1826 with the United States of America : "The
present Convention shall not apply to the Northern possessions of His Majesty
the King of Denmark, that is to say Iceland, the Færö Islands and
Greenland...."
13. The importance of these treaties is that they show a willingness on the part
of the States with which Denmark has contracted to admit her right to
exclude Greenland. To some of these treaties, Norway has herself been a
Party, and these must be dealt with later because they are relied on by Denmark
as constituting binding admissions by Norway that Greenland is subject to
Danish sovereignty.
14. For the purpose of the present argument, the importance of these conventions,
with whatever States they have been concluded, is due to the support which
they lend to the Danish argument that Denmark possesses sovereignty over
Greenland as a whole. 

15. It has been contended on behalf of Norway that no importance should be
attached to these conventions because, when they were concluded, the Parties
had no such question in mind as whether Danish sovereignty was limited or not
to the colonies, and whether in consequence "Greenland" meant more than the
colonized area. Both as to these conventions, and also as to the Treaty of Kiel,
in the sense of the area comprised within the colonies.
16. To the extent that these treaties constitute evidence of recognition of her
sovereignty over Greenland in general, Denmark is entitled to rely upon
them. 


17. These treaties may also be regarded as demonstrating sufficiently Denmark's
will and intention to exercise sovereignty over Greenland. There remains the
question whether during this period, i.e. 1814 to 1915, she exercised authority
in the uncolonized area sufficiently to give her a valid claim to sovereignty
therein.
Norway had recognized Danish sovereignty over the whole Greenland
1. In the early part of this judgment, it has been recalled that when the King of
Denmark was obliged to renounce, in favour of the King of Sweden, his
kingdom of Norway, Article 4 of the Treaty of Kiel of January 14th, 1814,
excepted from that renunciation Greenland, the Faroes and Iceland. 


2. The Court holds that, in consequence of the various undertakings resulting from
the separation of Norway and Denmark and culminating in Article 9 of the
Convention of September 1st, 1819, Norway has recognized Danish
sovereignty over the whole of Greenland and consequently cannot proceed to
 the occupation of any part thereof. during this time Denmark regarded herself as possessing sovereignty over all
3. "Everything in connection with the Treaty of Kiel in general and with its sixth Greenland and displayed and exercised her sovereign rights to an extent
article in particular" was regarded to be completely settled and as has already sufficient to constitute a valid title to sovereignty. When considered in
been explained, "Greenland" in Article 4 of the Treaty of Kiel means the whole conjunction with the facts of the preceding periods, the case in favour of
of Greenland. Denmark is confirmed and strengthened.
4. A second series of undertakings by Norway, recognizing Danish sovereignty
over Greenland, is afforded by various bilateral agreements concluded by
Norway with Denmark, and by various multilateral agreements to which both
Denmark and Norway were contracting Parties, in which Greenland has been
described as a Danish colony or as forming part of Denmark or in which
Denmark has been allowed to exclude Greenland from the operation of the
agreement. 

5. The first of these agreements is the Commercial Treaty concluded between
Denmark and the United Kingdoms of Sweden and Norway on November 2nd,
1826, a Treaty for which provision was made in Article 23 of the Treaty of
Kiel. Article 5 of that Treaty reads as follows: "The respective colonies of the
two High Contracting Parties, including in the case of Denmark, Greenland,
Iceland, and the Faroe Isles, shall be specially excepted from the provisions of
the four preceding articles, which shall only be applicable to the Kingdom of
Denmark, the Duchies of Slesvig, Holstein and Lauenbourg of the one part, and
to the Kingdoms of Sweden and Norway, of the other part." 

6. It has already been said that when the Treaty of 1826 speaks of "Greenland",
this can only denote Greenland in the sense, for example, of Article 4 of the
Treaty of Kiel, i.e. the whole of Greenland. The same applies to the Danish-
Norwegian Agreements, referred to above, which
7. followed the Treaty of 1826.

Norway is bound by the "Ihlen declaration" given on its behalf by its Minister of
Foreign Affairs
1. The Ihlen declaration - even if not constituting a definitive recognition of
Danish sovereignty - did not constitute an engagement obliging Norway to
refrain from occupying any part of Greenland. 

2. The Court considers it beyond all dispute that a reply of this nature given by
the Minister for Foreign Affairs on behalf of his Government in response to a
request by the diplomatic representative of a foreign Power, in regard to a
question falling within his province, is binding upon the country to which the
Minister belongs.
3. There can be no doubt that the words "everything in connection with the Treaty
of Kiel in general" cover also Article 4 of the Treaty which mentions Greenland
and that they are incompatible with the Norwegian argument to the effect that
the Convention of September 1st, 1819, only relates to the finance.
4. Thus not only Article 6 of the Treaty of Kiel was to be regarded as completely
settled, but "Everything in connection with the Treaty of Kiel in general and
with its sixth article in particular"
5. Even if the period from 1921 to July 10th, 1931, is taken by itself and without
reference to the preceding periods, the conclusion reached by the Court is that
 NUCLEAR TESTS CASE (AUSTRALIA V. FRANCE) (Hanna)
20 December 1974 | ICJ. | Writings and other sources
PETITIONER: AUSTRALIA
RESPONDENTS: FRANCE
SUMMARY:
Australia instituted a dispute proceeding against France concerning tests of nuclear
weapons conducted in the South Pacific region. France stated that it considered the
court manifestly lack jurisdiction and refrained from appearing at the public hearings
and from filing any pleadings. However, there was an announcement made by the
French government in 1974 hat it had finished the nuclear atmospheric tests. Such
being the case, the court by 9 votes to 6, has found that the claim of Australia no
longer had any object and that the Court was therefore not called upon to give a
decision thereon. In the reasoning of its Judgment, the Court adduces the following
considerations:
• Even before turning to the questions of jurisdiction and admissibility, the Court has
first to consider the essentially preliminary question as to whether a dispute exists
and to analyse the claim submitted to it;
• the original and ultimate objective of Australia is to obtain a termination of those
tests;
• France, by various public statements made in 1974, has announced its intention,
following the completion of the 1974 series of atmospheric tests, to cease the
conduct of such tests;
• Court finds that the objective of Australia has in effect been accomplished,
inasmuch as France has undertaken the obligation to hold no further nuclear tests in
the atmosphere in the South Pacific;
• the dispute having thus disappeared, the claim no longer has any object and there is
nothing on which to give judgment
Thus the Court finds that no further pronouncement is required in the present case. It does not
enter into the adjudicatory functions of the Court to deal with issues in abstract, once it has
reached the conclusion that the merits of the case no longer fall to be determined. The object
of the claim having clearly disappeared, there is nothing on which to give judgment
DOCTRINE: One of the basic principles governing the creation and performance of
legal obligations, whatever their source, is the principle of good faith. Trust and
confidence are inherent in international co-operation, in particular in an age when
this co-operation in many fields is becoming increasingly essential. Just as the very
rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the
binding character of an international obligation assumed by unilateral declaration.
Thus interested States may take cognizance of unilateral declarations and place
confidence in them, and are entitled to require that the obligation thus created be
respected.
FACTS:
1. The present cae relates to a dispute between the government of Australia
and the French Government concerning the holding of atmospheric tests of
nuclear weapons by the French in the South Pacific Ocean. As UN
Scientific Committee on the effects of atomic radiation has recoded in its
successive reports to the General Assembly, the testin of nucleae devices in
the atmosphwe and the consequent dissipation in varying degrees
throughout the world, of measureable quantities of radioactive matter.
2. By a letter of 9 May 1973, Ambassador of Australia applied instituting a
dispute proceeding against France for holding atmospheric tests of nuclear
weapons by the French government in the pacific ocean. The application
relied on Art 17 of the General Act for the Pacific Settlement of
International Disputes read together with Articles 36 and 37 of the statute of
the court.
3. Application was communicated to the French govt. The French government
did and could not accept the Court’s jurisdiction and that it considered that
the Court was manifestly not competent in the case. Furthermore, it did not
intend to appoint an agent and requested the court to remove the case from
its list.
4. By an order, the court indicated certain interim measures of protection in
the case and decided that the written proceedings should first be addressed
to the question s of the jurisdiction of the Court to entertain the dispute and
of the admissibility of the application, and fixed dates for the filing of a
Memorial by the parties.
5. Public hearings were held, during which the court heard the oral argument
on the questions of the Coyrt’s juriadiction and admissibility of the
application. The French govt was not represented at the hearings.
6. The govt of Australia asks the court to adjudge and declare that the carrying
out of further atmostheric nuclear weapon tests in the South Pacificocean is
not consistent with the applicable rules of international law and that the
French republic shall not carry out any further such tests.
7. Australia also recognized that the court has jurisdiction to entertain the
dispute, and that the application was admissible.
8. No pleadings were filed by the French govt, and was not represented at the
oral proceedings.
9. Although the French govt failed to appear and put forward their arguments,
the court nevertheless must proceed and reach a conclusion, and in doing so
must have regard not only to the evidence brought before it and the
arguments addressed to it by the applicant (Australia).
10. It should be emphasized that the Court possesses an inherent jurisdiction
enabling it to ensure that the exercise of its jurisdiction over the merits shall
not be frustrated, and to provide for the orderly settlement of all matters in
dispute, to ensure the observance of the inherent limitations on the exercise
of the judicial function of the court and to maintain its judicial character.
11. The diplomatic correspondence of the recent years between Australia and
France reveaks Australia’s preoccupation with French nuclear atmospheric
tests in the South Pacific region, and indicates that its objective has been to
bring about their termination. However, the French refused to give any such
undertaking.
 12. Subsequently, there were reports that France had announced that it had
finished atmospheric nuclear testing.
13. The court observed that it is clear that the Australian Governemnt
contemplated the possibility of “an assurance that no further atmospheric
tests will take place” being sufficient to protect Australia.
ISSUE/s:
Whether the Court should still render a decision pertating to the object of
Australia’s applicationclaim
RULING: The Court, by nine votes to six, finds that the claim of Australia no longer
has any object and that the Court is therefore not called upon to give a decision
thereon.
RATIO:
1. It has never been contested that the Court is entitled to interpret the
submissions of the parties, and in fact is bound to do so; this is one of the
attributes of its judicial functions.
2. It is true that, when the claim is not properly formulated because the
submissions of the parties are inadequate, the Court has no power to
"substitute itself for them and formulate new submissions simply based on
arguments and facts advanced"13, but that is not the case here, nor is it a
case of the reformulation of submissions by the Court. The Court has on the
other hand repeatedly exercised the power to exclude, when necessary,
certain contentions or arguments which were advanced by a party as part of
the submissions, but which were regarded by the Court, not as indications
of what the party was asking the Court to decide, but as reasons advanced
why the Court should decide in the sense contended for by that party.
3. In the circumstances of the present case, although the Applicant has in its
Application used the traditional formula of asking the Court "to adjudge and
declare" the Court must ascertain the true object and purpose of the claim
and in doing so it cannot confine itself to the ordinary meaning of the words
used; it must take into account the Application as a whole, the arguments of
the Applicant before the Court, the diplomatic exchanges brought to the
Court's attention, and public statements made on behalf of the applicant
Government.
4. In the present case, it is evident that the fons et origo (origin) of the case
was the atmospheric nuclear tests conducted by France in the South Pacific
region, and that the original and ultimate objective of the Applicant was and
has remained to obtain a termination of those tests; thus its claim cannot be
regarded as being a claim for a declaratory judgment. (But the present cass
is not one in which declasratory judgment is requested)
5. Before considering whether the declarations made by the French authorities
meet the object of the claim by the Applicant that no further atmospheric
13 P.C.I.J., Series A, No. 7, p. 35
nuclear tests should be carried out in the South Pacific, it is first necessary
to determine the status and scope on the international plane of these
declarations.
6. It is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of creating legal
obligations. Declarations of this kind may be, and often are, very specific.
When it is the intention of the State making the declaration that it should
become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State being thenceforth
legally required to follow a course of conduct consistent with the
declaration. An undertaking of this kind, if given publicly, and with an
intent to be bound, even though not made within the context of international
negotiations, is binding.
7. Of course, not all unilateral acts imply obligation; but a State may choose to
take up a certain position in relation to a particular matter with the intention
of being bound -- the intention is to be ascertained by interpretation of the
act. When States make statements by which their freedom of action is to be
limited, a restrictive interpretation is called for.
8. One of the basic principles governing the creation and performance of
legal obligations, whatever their source, is the principle of good faith.
Trust and confidence are inherent in international co-operation, in an
age when this co-operation in many fields is becoming increasingly
essential. Just as the very rule of pacta sunt servanda in the law of
treaties is based on good faith, so also is the binding character of an
international obligation assumed by unilateral declaration. Thus,
interested States may take cognizance of unilateral declarations and
place confidence in them, and are entitled to require that the obligation
thus created be respected.
9. Having examined the legal principles, the court will now turn to the
statements made by the french govt. In reply to a question concerning
reports that France had announced that it had finished atmospheric nuclear
testing, the attorney-general of australia said that the statement of the
French Foreign Minister "falls far short of an undertaking that there will be
no more atmospheric tests conducted by the French Government at its
Pacific Tests Centre" and that France was "still reserving to itself the right
to carry out atmospheric nuclear tests" so that "In legal terms, Australia has
nothing from the French Government which protects it against any further
atmospheric tests".
10. The unilateral statements of the French authorities were made outside the
Court, publicly and erga omnes (towards all), even though the first of them
was communicated to the Government of Australia. To have legal effect,
there was no need for these statements to be addressed to a State, nor was
acceptance by any other State required. The general nature and
characteristics of these statements are decisive for the evaluation of the
legal implications. The Court is entitled to presume that these statements
were not made in vacuo, but in relation to the tests which constitute the very
 object of the present proceedings, although France has not appeared in the
case.
11. French govt’s announcement that the series of atmospheric tests would be
the last, French govt conveyed to the world its intention to effectively
terminate these tests. The validity of these statements and their legal
consequences must be considered within the general frame-work of the
security of international intercourse, and the confidence and trust which are
so essential in the relations among States.
12. Court faces a situation in which the objective of the Applicant has in effect
been accomplished, since the Court finds that France has undertaken the
obligation to hold no further nuclear tests in the atmosphere in the South
Pacific. Court finds that no question of damages arises in the present case,
since no such claim has been raised by the Applicant either prior to or
during the proceedings, and the original and ultimate objective of Applicant
has been to seek protection "against any further atmospheric test"
13. The Court is called upon to resolve existing disputes between States. Thus
the existence of a dispute is the primary condition for the Court to exercise
its judicial function; it is not sufficient for one party to assert that there is a
dispute, since "whether there exists an international dispute is a matter for
objective determination" by the Court14. The dispute brought before it must
therefore continue to exist at the time when the Court makes its decision. It
must not fail to take cognizance of a situation in which the dispute has
disappeared because the object of the claim has been achieved by other
means. If the declarations of France concerning the effective cessation of
the nuclear tests have the significance described by the Court, that is to say
if they have caused the dispute to disappear, all the necessary consequences
must be drawn from this finding.
14. Court having found that the Respondent has assumed an obligation as to
conduct, concerning the effective cessation of nuclear tests, no further
judicial action is required. The Applicant has repeatedly sought from the
Respondent an assurance that the tests would cease, and the Respondent
has, on its own initiative made a series of statements to the effect that they
will cease. Thus the Court concludes that, the dispute having disappeared,
the claim advanced by Australia no longer has any object. It follows that
any further finding would have no raison d'être.
15. Once the Court has found that a State has entered into a commitment
concerning its future conduct it is not the Court's function to contemplate
that it will not comply with it.

14 Interpretation of Peace Treaties with Bulgaria, Hungary and

Romania (First Phase), Advisory Opinion, I.C.J. Reports 1950, p. 74
 BATCH 2
001 Montevideo Convention on Rights and Duties of States (1934)
(CELAJE)
RATIFYING PARTIES: Brazil, Chile, Colombia, Costa Rica, Cuba,
Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras,
Mexico, Nicaragua, Panama, United States, Venezuela
SIGNED BUT NOT RATIFIED PARTIES: Argentina, Paraguay, Peru,
Uruguay
SUMMARY: The Montevideo Convention on the Rights and Duties of
States is a treaty signed at Montevideo, Uruguay, on December 26, 1933,
during the Seventh International Conference of American States. The
Convention codifies the declarative theory of statehood as accepted as part of
customary international law. At the conference, United States President Franklin
D. Roosevelt and Secretary of State Cordell Hull declared the Good Neighbor
Policy, which opposed U.S. armed intervention in inter-American affairs. The
convention was signed by 19 states. The acceptance of three of the signatories
was subject to minor reservations. Those states were Brazil, Peru and the United
States.
integrity and independence, to provide for its conservation and prosperity,
and consequently to organize itself as it sees fit, to legislate upon its
interests, administer its services, and to define the jurisdiction and
competence of its courts. The exercise of these rights has no other limitation
than the exercise of the rights of other states according to international law.
7. Article 4
8. States are juridically equal, enjoy the same rights, and have equal capacity
in their exercise. The rights of each one do not depend upon the power
which it possesses to assure its exercise, but upon the simple fact of its
existence as a person under international law.
9. Article 5
10. The fundamental rights of states are not susceptible of being affected in any
manner whatsoever.
11. Article 6
12. The recognition of a state merely signifies that the state which recognizes it
accepts the personality of the other with all the rights and duties determined
by international law. Recognition is unconditional and irrevocable.

As a restatement of customary international law, the Montevideo Convention 13. Article 7

merely codified existing legal norms and its principles and therefore does not 14. The recognition of a state may be express or tacit. The latter results from
apply merely to the signatories, but to all subjects of international law as a any act which implies the intention of recognizing the new state.
whole.
15. Article 8
16. No state has the right to intervene in the internal or external affairs of
BODY: another.

1. Article 1 17. Article 9

2. The state as a person of international law should possess the following 18. The jurisdiction of states within the limits of national territory applies to all
qualifications: the inhabitants. Nationals and foreigners are under the same protection of
the law and the national authorities and the foreigners may not claim rights
a. a. a permanent population; other or more extensive than those of the nationals.
b. b. a defined territory; 19. Article 10
c. c. government; and 20. The primary interest of states is the conservation of peace. Differences of
d. d. capacity to enter into relations with the other states. any nature which arise between them should be settled by recognized
pacific methods.
3. Article 2
21. Article 11
4. The federal state shall constitute a sole person in the eyes of international
law. 22. The contracting states definitely establish as the rule of their conduct the
precise obligation not to recognize territorial acquisitions or special
5. Article 3 advantages which have been obtained by force whether this consists in the
employment of arms, in threatening diplomatic representations, or in any
6. The political existence of the state is independent of recognition by the
other states. Even before recognition the state has the right to defend its other effective coercive measure. The territory of a state is inviolable and
 may not be the object of military occupation nor of other measures of force
imposed by another state directly or indirectly or for any motive whatever
even temporarily.
23. Article 12
24. The present Convention shall not affect obligations previously entered into
by the High Contracting Parties by virtue of international agreements.
25. Article 13
26. The present Convention shall be ratified by the High Contracting Parties in
conformity with their respective constitutional procedures. The Minister of
Foreign Affairs of the Republic of Uruguay shall transmit authentic
certified copies to the governments for the aforementioned purpose of
ratification. The instrument of ratification shall be deposited in the archives
of the Pan American Union in Washington, which shall notify the signatory
governments of said deposit. Such notification shall be considered as an
exchange of ratifications.
27. Article 14
28. The present Convention will enter into force between the High Contracting
Parties in the order in which they deposit their respective ratifications.
29. Article 15
30. The present Convention shall remain in force indefinitely but may be
denounced by means of one year's notice given to the Pan American Union,
which shall transmit it to the other signatory governments. After the
expiration of this period the Convention shall cease in its effects as regards
the party which denounces but shall remain in effect for the remaining High
Contracting Parties.
31. Article 16
32. The present Convention shall be open for the adherence and accession of
the States which are not signatories. The corresponding instruments shall be
deposited in the archives of the Pan American Union which shall
communicate them to the other High Contracting Parties.
33. RESERVATIONS
34. The Delegation of the United States of America, in signing the Convention
on the Rights and Duties of States, does so with the express reservation
presented to the Plenary Session of the Conference on December 22, 1933,
which reservation reads as follows: The Delegation of the United States, in
voting "yes" on the final vote on this committee recommendation and
proposal, makes the same reservation to the eleven articles of the project or
proposal that the United States Delegation made to the first ten articles
during the final vote in the full Commission, which reservation is in words
as follows: "The policy and attitude of the United States Government
toward every important phase of international relationships in this
hemisphere could scarcely be made more clear and definite than they have
been made by both word and action especially since March 4.
35. Every observing person must by this time thoroughly understand that under
the Roosevelt Administration the United States Government is as much
opposed as any other government to interference with the freedom, the
sovereignty, or other internal affairs or processes of the governments of
other nations.
36. "In addition to numerous acts and utterances in connection with the carrying
out of these doctrines and policies, President Roosevelt, during recent
weeks, gave out a public statement expressing his disposition to open
negotiations with the Cuban Government for the purpose of dealing with the
treaty which has existed since 1903.
37. I feel safe in undertaking to say that under our support of the general
principle of non-intervention as has been suggested, no government need
fear any intervention on the part of the United States under the Roosevelt
Administration.
38. I hope that at the earliest possible date such very important work will be
done. In the meantime in case of differences of interpretations and also until
they (the proposed doctrines and principles) can be worked out and codified
for the common use of every government, I desire to say that the United
States Government in all of its international associations and relationships
and conduct will follow scrupulously the doctrines and policies which it has
pursued since March 4 which are embodied in the different addresses of
President Roosevelt since that time and in the recent peace address of
myself on the 15th day of December before this Conference and in the law
of nations as generally recognized and accepted".
39. The delegates of Brazil and Peru recorded the following private vote with
regard to article 11: "That they accept the doctrine in principle but that they
do not consider it codifiable because there are some countries which have
not yet signed the Anti-War Pact of Rio de Janeiro 4 of which this doctrine
is a part and therefore it does not yet constitute positive international law
suitable for codification."

002 Declaration on Granting the Independence To Colonial Countries
and Peoples (Escalona)
December 14, 1960 | Personalities under International Law - States
United Nations General Assembly Resolution 1514 (Original Text – sobrang
short niya):
6. The General Assembly,
7. Mindful of the determination proclaimed by the peoples of the world in the
Charter of the United Nations to reaffirm faith in fundamental human rights,
in the dignity and worth of the human person, in the equal rights of men and
women and of nations large and small and to promote social progress and
better standards of life in larger freedom,
8. Conscious of the need for the creation of conditions of stability and well-
being and peaceful and friendly relations based on respect for the principles
of equal rights and self-determination of all peoples, and of universal
respect for, and observance of, human rights and fundamental freedoms for
all without distinction as to race, sex, language or religion,
9. Recognizing the passionate yearning for freedom in all dependent peoples
and the decisive role of such peoples in the attainment of their
independence,
10. Aware of the increasing conflicts resulting from the denial of or
impediments in the way of the freedom of such peoples, which constitute a
serious threat to world peace,
11. Considering the important role of the United Nations in assisting the
movement for independence in Trust and Non-Self-Governing Territories,
12. Recognizing that the peoples of the world ardently desire the end of
colonialism in all its manifestations,
13. Convinced that the continued existence of colonialism prevents the
development of international economic co-operation, impedes the social,
cultural and economic development of dependent peoples and militates
against the United Nations ideal of universal peace,
14. Affirming that peoples may, for their own ends, freely dispose of their
natural wealth and resources without prejudice to any obligations arising
out of international economic co-operation, based upon the principle of
mutual benefit, and international law,
15. Believing that the process of liberation is irresistible and irreversible and
that, in order to avoid serious crises, an end must be put to colonialism and
all practices of segregation and discrimination associated therewith,
16. Welcoming the emergence in recent years of a large number of dependent
territories into freedom and independence, and recognizing the increasingly
powerful trends towards freedom in such territories which have not yet
attained independence,
17. Convinced that all peoples have an inalienable right to complete freedom,
the exercise of their sovereignty and the integrity of their national territory,
18. Solemnly proclaims the necessity of bringing to a speedy and unconditional
end colonialism in all its forms and manifestations;
19. And to this end Declares that:
a. The subjection of peoples to alien subjugation, domination and
exploitation constitutes a denial of fundamental human rights,
is contrary to the Charter of the United Nations and is an
impediment to the promotion of world peace and co-operation.
b. All peoples have the right to self-determination; by virtue of
that right they freely determine their political status and freely
pursue their economic, social and cultural development.
c. Inadequacy of political, economic, social or educational
preparedness should never serve as a pretext for delaying
independence.
d. All armed action or repressive measures of all kinds directed
against dependent peoples shall cease in order to enable them
to exercise peacefully and freely their right to complete
independence, and the integrity of their national territory shall
be respected.
e. Immediate steps shall be taken, in Trust and Non-Self-Governing
Territories or all other territories which have not yet attained
independence, to transfer all powers to the peoples of those
territories, without any conditions or reservations, in
accordance with their freely expressed will and desire, without
any distinction as to race, creed or colour, in order to enable
them to enjoy complete independence and freedom.
f. Any attempt aimed at the partial or total disruption of the
national unity and the territorial integrity of a country is
incompatible with the purposes and principles of the Charter
of the United Nations.
g. All States shall observe faithfully and strictly the provisions of the
Charter of the United Nations, the Universal Declaration of Human
Rights and the present Declaration on the basis of equality, non-
interference in the internal affairs of all States, and respect for the
sovereign rights of all peoples and their territorial integrity.
Summary:
1. The first part is akin to whereas clauses, which refers to the goals of the
United Nations given the shift towards western politicization.
2. The second part begins to condemn colonization by clearly saying that it is
against fundamental human rights, the United Nations charter, and the
promotion of world peace.
3. It also orders the controlling states to transfer all powers to the people of
those territories over which they have dominion over.
4. It also condemns the interference of states over other states, as it sets that
states shall respect the sovereignty of others.
 003 AUSTRO-GERMAN CUSTOMS UNION CASE, ADVISORY OPINION,
1931
OPINION OF THE COURT (September 5, 1931):
Customs Régime between Germany and Austria (protocol of march 19th, 1931)
(PERRAL) Topic: Personality Under International Law: States-
“independence”
FACTS (BACKGROUND OF THE CASE)
1. Germany and Austria had agreed, in virtue of a Protocol drawn up at
Vienna on March 19th, 1931, to conclude a treaty with a view to
assimilating the tariff and economic policies of the two countries on the
basis of and according to the principles laid down in the said Protocol, with
the result that a customs union régime would be established. This Protocol
was communicated, in particular, to the British, French and Italian
Governments. Doubts immediately arose as to whether the contemplated
régime was compatible with Article 88 of the Treaty of Peace of Saint-
Germain and with Protocol No. 1(see end of text), signed at Geneva on
October 4th, 1922; these instruments, though not absolutely prohibiting
Austria from alienating her independence or from taking any action likely to
compromise it, obliged her, in brief, to abstain from certain acts, or, in
particular cases, to secure the assent of the Council of the League of
Nations. No provision for obtaining of this assent had been made in the
Protocol of Vienna.
2. The British Government brought the matter before the Council. The latter,
on May 19, 1931, adopted a resolution requesting the Court, under Article
14 of the Covenant, to give an advisory opinion upon the following
question:
ISSUE (question now before the international court or tribunal):
1. Would a régime established between Germany and Austria on the basis and
within the limits of the principles laid down by the Protocol of March 19th,
1931, be compatible with Article 88 of the Treaty of Saint-Germain and
with Protocol No. 1, signed at Geneva on October 4th, 1922?
1. It first interprets the request for an opinion in the sense that the question
which the Court was called upon to settle was whether, from the point of
view of law, Austria could, in the absence of the Council’s consent,
conclude with Germany the Customs Union contemplated in the Vienna
Protocol, without thereby committing an act incompatible with the
obligations she had assumed. The Court then proceeds to analyse the texts
giving rise to these obligations, namely, Article 88 of the Treaty of Saint-
Germain and Protocol No. 1 of Geneva.
2. The independence of Austria, according to Article 88 of the Treaty of Saint-
Germain, must be understood to mean the continued existence of Austria
within her present frontiers as a separate State, with sole right of decision in
all matters economic, political, financial or other; it follows that this
independence is violated as soon as there is any infringement of it, whether
in the economic, political, or any other field—since these different aspects
of independence are in practice one and indivisible. By alienation must be
understood any voluntary act by the Austrian State which would cause it to
lose its independence, or would modify its independence, in the sense that
its sovereign will would be subordinated to the will of another Power.
Finally, the undertaking given by Austria to abstain from “any act which
might directly or indirectly by any means whatever compromise her
independence” can only be interpreted to refer to “any act calculated to
endanger” that independence, in so far, of course, as can be reasonably
foreseen.
3. In the Geneva Protocol, Austria undertook certain obligations in the
economic sphere. That these obligations fall within the scope of those
undertaken by Austria in Article 88 of the Treaty of Saint-Germain is
apparent from the express or implied reference made in the Protocol to the
terms of that Article. Thus, the undertaking given by Austria not to violate
her economic independence by granting any State a special régime or
exclusive advantages calculated to threaten that independence is covered by
the undertaking already given by Austria in Article 88 to abstain from acts
which might compromise her independence. But this in no way prevents
these undertakings, which were assumed by Austria in a special and distinct
instrument, from possessing a value of their own, and on that account a
binding force, complete in itself, and capable of independent application.
4. The Court next proceeds to analyse the Protocol of Vienna, and observes
that the régime it provides for fulfills the conditions of a Customs Union. In
the Court’s view, what has to be considered is not any particular clause of
the Protocol, but the régime, as a whole, which is to be established in
 pursuance of the Protocol. The establishment of this régime does not in
itself constitute an act alienating Austria’s independence, and it may be said
that, legally, Austria retains the possibility of exercising her independence.
Austria’s independence is not, strictly speaking, endangered within the
meaning of Article 88 of the Treaty of Saint-Germain, and there is not
therefore, from the point of view of law, any inconsistency with that Article.
5. On the other hand, the projected system constitutes a special régime, and it
affords Germany, in relation to Austria, “advantages” which are withheld
from third Powers. Finally, it is difficult, in the view of the Court, to
maintain that this régime is not calculated to threaten the economic
independence of Austria, and that it is, consequently, compatible with the
undertakings specifically given by Austria in the Protocol of Geneva with
regard to her economic independence.
6. OVERALL: The Court held that, Treaty of Saint-Germain, must be
understood to mean the continued existence of Austria within her present
frontiers as a separate State with sole right of decision in all matters
economics, political, financial or other with the result that that
independence is violated, as soon as there is any violation thereof, either
in the economic, political or any other field, this different aspect of
independence being in practice one and indivisible.
7. Effects of the advisory opinion: On Sept. 3, 1931, at a meeting of the
Commission of Enquiry for a European Union, the representatives of
Germany and Austria had announced their intention of not pursuing the
project for a Customs Union. In these circumstances, the Council passed a
resolution on Sept. 7, 1931, taking note of the Court’s opinion, and
declaring that there could no longer be any occasion for it to proceed further
with its consideration of this item of its agenda.
Note: The Court’s opinion was adopted by 8 votes against 7.
- Out of the 8 judges composing the majority, 7 declared that: In their
opinion, the regime contemplated was incompatible not only with the
protocol of Geneva, but also with Article 88 of the Treaty of Saint-
Germain, since- as 6 of the said Judges said in a joint declaration,
which they signed- it would be calculated to threaten the independence
of that country. Judge M. Anzilotti concurred in the operative portion
of the opinion, but declared that he didv not agree with the basis on
whivh it is based, and wrote his own individual opinion.
M. Anzillotti’s Opinion:
- States that the dispute upon which the Court is asked to give its opinion
relates to the applicability of the provisions of Article 88 of the Treaty of
Saint- Germain and the Geneva Protocol to this particular case.
- M. Anzilotti lays out that the idea that Austria’s independence is
inalienable except with the consent of the Council of the luegue of Nations
has its origin in Article 80 of the Treaty of Versailles, which was adopted in
order to secure Austria’s existence against the danger of incorporation
within the German Reich. He holds that this article was not adopted in the
interests of Austria, but in the interests of Europe as a whole, and thus it
will be readily understood that Article 88, far from granting Austria rights,
only imposes upon her obligations.
- The opinion goes on to define the meaning and scope of the terms
“independence” and “inalienable” in the first part of Article 88. On the term
“independence”, M. Anzilotti states that, within the meaning of Article 88,
it is nothing else but the existence of Austria, within the frontiers laid down
by the Treaty of Saint-Germain, as a separate State and not subject to the
authority of any other State or group of States. Independence as thus
understood is really no more than the normal condition of States according
to international law; it may also be described as sovereignty, or external
sovereignty, by which is meant that the State has over it no other authority
than that of international law. As to the term “inalienable”, it expresses the
idea that Austria must not voluntarily lose her existence as an independent
State otherwise than with the consent of the Council of the League of
Nations. M. Anzilotti notes that Article 88 thus marks a twofold departure
from ordinary international law. According to ordinary international law,
every country is free to renounce its independence and even its existence;
this rule does not apply to Austria. Similarly, according to ordinary
international law, each country must respect the independence of other
countries, but it is not forbidden to agree to another State’s voluntarily
renouncing its independence in its favour. This is not allowed in the case of
Austria.
- After having also interpreted the 2nd part of Article 88 , M. Anzilotti
reaches the conclusion that Article 88 contemplated 2 kinds of acts from
which Austria is to abstain except with the consent of the Council of the
League of Nations: (a) so called acts of alienation of independence; and (b)
acts, which wjhile leaving Austria her independence, would have the effect
of exposing that indepence to danger.
- M. Anzilotti observes that it is above all on the Geneva Protocol of
Oct. 4, 1922 that he is at variance with the grounds of the Court’s
opinion. He declares that the régime established between Austria and
Germany can only be incompatible with the Geneva Protocol if it is
 incompatible with Article 88 of the Treaty of Saint-Germain, since the of Austria must not be alienated or compromised save with the consent
of the Council.
Geneva Protocol does not impose on Austria, as regards her - The dissenting judges turn to the interpretation of the terms
independence, any obligation which does not already ensue from that “independence” and “alienation”. They explain that a state would not
article. be independent in the legal sense if it was placed in a condition of
dependence on another Power, if it ceased itself to exercise within its
own territory the summa potestas or sovereignty, i.e. if it lost the right
- It follows, according to M. Anzilotti, that the Austro- German Custom
to exercise its own judgment in coming to the decisions which the
Regime will only be compatible with the provisions mentioned in the
government of its territory entails. According to the dissenting judges,
Council’s request provided that (a) it is not in the nature of a so-called
restrictions on its liberty of action which a State may agree to do not
alienation of Austria’s independence; or (b) it is not capable, so far as
affect its independence, provided that the State does not thereby
can reasonably be foreseen, of exposing that independence to any
deprive itself of its organic powers. The “alienation” of the
danger. In this regard, M. Anzilotti observes that the said régime is
independence of a State implies that the right to exercise these
established on a footing of complete legal equality and reciprocity. As
sovereign powers would pass to another State or group of States. For an
to the question whether the Austro-German Customs Union
act to “compromise” the independence of Austria it must be one which
contemplated by the Vienna Protocol must be considered as an act
would imperil the continued existence of Austria as a State capable of
susceptible of endangering Austria’s independence, he considers that
exercising within its territory all the powers of an independent State
the answer depends on considerations which are for the most part, if not
within the meaning of independence given above.
entirely, of a political and economic kind. It may therefore be asked
- As to the Genvea Protocol No. 1 of 1922, the dissenting judges
whether the Council really wished to obtain the Court’s opinion on this
consider that any act which is a violation of the obligations of Austria
aspect of the question and whether the Court ought to deal with it. In
set out therein must also be a violation of Article 88. If the régime to be
M. Anzilotti’s view, the Court must either refuse to give the opinion
established under the Vienna Protocol is compatible with Article 88, it
asked for, or it must give it on the question as a whole.
cannot in the opinion of the dissenting judges be incompatible with the
- Taking into consideration, in particular, the movement towards the
Geneva Protocol.
political union of the 2 countries, M. Anzillotti considers that Austro
- The dissenting judges infer form the language of the Opinion that the
German Customs Union must be considered a fact which might
other members if the Court consider that the régime under the Vienna
compromise Austria’s Independence. For these reasons, M. Anzilotti
Protocol would violate the economic independence of Austria because
comes to the conclusion that the custom regime would be incompatible
it would be the grant to Germany of a special régime or of exclusive
with Article 88 of the Treaty of Saint-Germain, and that Aus- tria is
advantages calculated to threaten this independence. In their view, it is
therefore obliged to abstain from it or to ask the consent of the Council
not enough that the arrangement should be the grant of a special régime
of the League of Nations. He also nds that the said régime would also
or of exclusive advantages. The grant must be calculated to threaten
be incompatible with the Protocol of Geneva, which only applies the
Austria’s independence.
provision of Article 88 to the matters there in issue.
- The dissenting judges consider that no material has been placed before
- OVERALL: M. Anzilloti explains that: Dependent States are subject
the Court in the course of the present proceedings for the purpose of
to the authority of one or more States... Where there is no
showing that States which have concluded customs unions have thereby
relationship of superiority and subordination, it is impossible to speak
endangered their future existence as States.The dissenting judges accept
of dependence within the meaning of International Law... It follows
the statement of the Opinion that the régime fulfills the requirements of
that the legal conception of independence has nothing to do with a
a customs union, but in their opinion it is a union which is organized on
State’s subordination to international law or with the numerous and
the basis of a customs association, and not on that of a customs fusion;
constantly increasing states of de facto dependence which
that is to say, each of the States concerned preserves the right to enact
characterise the relation of one country to other countries.”
its own legislation on customs matters and to enforce that legislation in
-
its own territory by its own customs service.
DISSENTING OPINIONS: - Having interpreted the various provisions of the Vienna Protocol, the
- According to the dissenting judges, the purpose of Article 88 was to dissenting judges reach the conclusion that none of its provisions, when
ensure the continued existence of Austria as a separate State, which considered individually, are inconsistent with the maintenance of
was achieved by securing the assent of all Parties to the Treaty, Austria’s position as a separate and independent State.
including that of Austria herself, to the principle that the independence
 - For these reasons, the dissenting judges conclude that a régime
established between Germany and Austria on the basis and within the
limits of the principles laid down by the Protocol of March 19, 1931,
would be compatible both with Article 88 of the Treaty of Saint-
Germain and with Protocol No. 1 signed at Geneva on Oct. 4, 1922.

Brief Background of the Treaty of Saint Germain and Article 88 of the said Treaty:

- The treaty declared that the Austro-Hungarian Empire was to be dissolved.

According to article 177, Austria, along with the other Central Powers,
accepted responsibility for starting the war. The new Republic of Austria,
consisting of most of the German-speaking Danubian and Alpine provinces in
former Cisleithania, recognized the independence of Hungary, Czechoslovakia,
Poland, and the Kingdom of Serbs, Croats and Slovenes. The treaty included
'war reparations' of large sums of money, directed towards the Allies
- Article 88 of of the treaty required Austria to refrain from directly or indirectly
compromising its independence, which meant that Austria could not enter into
political or economic union with the German Reich without the agreement of
the council of the League of Nations. Accordingly, the new republic's initial
self-chosen name of German-Austria had to be changed to Austria. Many
Austrians would come to find this term harsh (especially among the Austrian
Germans who were German nationalists of the former Austro-Hungarian
Empire), due to Austria's later economic weakness, which was caused by loss
of land. The economic weakness of Austria would later lead to support for the
idea of Anschluss (political union) with Nazi Germany.

Conscription was abolished and the Austrian Army was limited to a force of
30,000 volunteers. There were numerous provisions dealing with Danubian
navigation, the transfer of railways, and other details involved in the breakup of
a great empire into several small independent states.

The vast reduction of population, territory and resources of the new Austria
relative to the old empire wreaked havoc on the economy of the old nation,
most notably in Vienna, an imperial capital now without an empire to support
it. For a time, the country's very unity was called into question. Unlike its
former Hungarian partner, Austria had never been a nation in the true sense of
the word. While the Austrian state had existed in one form or another for over
700 years, it had no unifying force other than loyalty to the Habsburgs.
 004 FRENCH INDEMNITY OF 1831 (STA.MARIA)
US Claims Commission | Personality Under International Law – States
PETITIONERS: N/A
RESPONDENTS: N/A
(BASED ON NOTES OF THE US COMMISSION/DIGEST ONLY SINCE
MA’AM SAID OK LANG DAW LOL and walang copy ng original case. I did my
best to integrate)
SUMMARY: France paid the US compensation to be distributed among US
nationals in respect of certain damage caused during the Napoleonic Wars.
Some claims were made that related to injuries apparently caused by Holland
and Denmark and the question arose whether France was responsible for them.
The report of the US Commission that distributed the compensation was
supplemented by notes of Commissioner Kane indicating the general principles
upon which the Commission had relied. The issue is WON France was liable
for the injuries caused by Holland and Denmark? YES for Holland, NO for
Denmark.
France was liable for injuries caused by Holland because Holland was
already a dependent kingdom (to France) and King Louis was merely a
sovereign existing only by name. It was noted that Holland after some 10 years
of political changes during which, though nominally independent, she was
tributary to all the projects of France and had received King Louis, a king of the
Napoleon family. Although King Louis had sovereignty over Holland, he was
reminded that the country was a French Conquest and that his highest and
imprescriptible duties were to the imperial crown, France. His submission was
seen in the French-Dutch Treaty of March 16, 1810 where King Louis had no
choice but to yield as he was a prisoner at the time at Paris.
France was not liable for the injuries caused by Denmark because
Denmark was an actual sovereign state. The question that was raised before
the Commission pertained to France and not Denmark. One cannot be charged
with the acts of the other; for neither was dependent. The conduct of King
Frederic (King of Denmark) was an act of his own; the Kingdom of Denmark
was then, as now, independent.
Commissioner Kane explained that the broad distinction between the cases of
Holland and Denmark which mainly referred to independence as a requirement
of statehood. Holland was a nominal sovereignty (sovereign only by name) and
Denmark was an actual sovereignty.
DOCTRINE: (from the notes of the Commission) Independence
as a requirement of statehood means, to some extent, factual, as
well as legal, independence from other states. Although it is
accepted that states may influence the policies and conduct of
another state, there may come a point, where factual dependence
by one state upon another is so great that it is really no more than a
“puppet” state and will not be treated as meeting the requirement
of independence.
FACTS:
France paid the US compensation to be distributed among US
nationals in respect of damages caused during the Napoleonic War
(1803- 1815). Some claims were made that related to injuries
apparently caused by Holland and Denmark.
ISSUE:
WON France was liable for the injuries caused by Holland and Denmark? – YES for
HOLLAND, NO for DENMARK.
RULING: N/A
RATIO:
France was liable for injuries caused by Holland.
1. France was liable for injuries caused by Holland because
Holland was already a dependent kingdom (to France) and
King Louis was merely a sovereign existing only by name.
2. It was noted that Holland after some 10 years of political
changes during which, though nominally independent, she was
tributary to all the projects of France and had received King
Louis, a king of the Napoleon family. Although King Louis
had sovereignty over Holland, he was reminded that the
country was a French Conquest and that his highest and
imprescriptible duties were to the imperial crown, France.
3. His submission was seen in the French-Dutch Treaty of March
16, 1810 where King Louis had no choice but to yield as he
was a prisoner at the time at Paris.
4. The 10th Article of the French-Dutch Treaty of March 16,
1810:
 “ All merchandize, which has arrived in American vessels in the
ports of Holland since the 1st of January 1809, shall be placed under
sequestration and shall belong to France, to be disposed of according
to circumstances and to political relations with the US”
à It was for the value of these cargoes, that reclamations were
made before the commissioners. Holland was already a dependent
kingdom and Louis (king of Holland) a merely nominal sovereign.

France was not liable for the injuries caused by Denmark because
Denmark was an actual sovereign state.
1. The question that was raised before the Commission pertained
to France and not Denmark. One cannot be charged with the
acts of the other; for neither was dependent.
2. The spoliations to which Denmark ministered were of a
different character. It may be, that the cconduct of King
Frederic (King of Denmark) was dictated by his anxiety to
conciliate the favor of the French emperor; or perhaps he was
moved by the portion of the spoil which might fall into his
hands: we had nothing to do with his motives or his fears. The
act was his own; the Kingdom of Denmark was then, as
now, independent.
3. This is then the broad distinction between the cases of
Holland and Denmark. The formal was a nominal, the
latter an actual sovereignty. The intervention of one was
merely formal and was exacted by force; the other was the
voluntary pander to French avidity.
005 CASE CONCERNING RIGHTS OF NATIONALS OF THE UNITED
STATES OF AMERICA IN MOROCCO (TAN)
Aug. 27. 1952| International Court of Justice |
PETITIONERS: France
RESPONDENTS: United States of America
SUMMARY: Here, the U.S. is questioning several provisions revolving
around the question of US imports without official allocation of currency in
the French Zone of Morocco were subject to licensing control, the extent of
consular jurisdiction of the U.S. in the same area, and whether or not U.S.
nationals are subject to taxation.
As regards the regulation of imports, the ICJ held that the General Act of
Algeciras guarantees economic liberty to all participating countries. At the
time this case was decided, Morocco was still under the Protectorate of
France. The U.S. now argues that several provisions of a residential decree
issued which states that all imports without official allocation of currency
were subject to a licensing system, except for imports coming from
France/French Union. The ICJ held that Morocco, being under the
Protectorate of France, did not cede its personality as a State under
international law. Therefore, following the principle of economic equality,
France cannot now give itself advantages over other states with most-
favored-nation clauses such as the U.S.
As regards the extent of consular jurisdiction, the ICJ held that the U.S.
exercises consular jurisdiction in the French Zone of Morocco because
several Conventions such as the one between France and Great Britain,
presuppose that the U.S. was already exercising consular jurisdiction at the
time. Therefore, U.S.’ consular jurisdiction is only to the extent that these
provisions will be put into effect.
Lastly, the ICJ held that the U.S. is bound by Moroccan laws even if it does
not give its prior assent. The right of assent that the U.S. is trying to invoke
only pertains to the need for U.S.’ assent before its own consular court in
Morocco can apply Moroccan law to its nationals. This does not mean that
the consular courts have the power to completely prohibit the application of
Moroccan laws to their nationals. As for taxation, the exemption granted is
only for proteges – people in the diplomatic service – and that the blanket
exemption has been abrogated when Spain and Britain abrogated the same
rights because this is what U.S. was trying to invoke.
DOCTRINE: he question now is whether or not France is also bound by
this principle of equality, and thus making it improper for France to put itself
in a more favored position than the other States. It is not disputed that
Morocco, even under the protection of the French Government, has
RETAINED ITS PERSONALITY AS A STATE UNDER
INTERNATIONAL LAW. The rights of France in Morocco are defined by
the Protectorate Treaty of 1912, and therefore, France is not accorded a
privileged position even in Morocco, the state it protects.
FACTS:
1. Here, the United States is questioning various treaties which will be
discussed later in detail, but their contentions revolve around the question of
whether or not the US imports without official allocation of currency in the
French Zone of Morocco were subject to licensing control, the extent of
consular jurisdiction of the US in the same area, and whether or not the U.S.
Nationals in the area are subject to taxation.
2. According to France, the U.S. is not anymore entitled to invoke Art. 24 of
the 1836 Treaty – the most-favored-nation clause (basically it’s a clause
which says that a nation that’s been granted the title of most favored nation
is preferred in terms of trade) – because of the current international
obligations of the Shereefian empire.
3. France also argues the laws of Morocco apply to U.S. nationals even if the
U.S. does not give their assent to the applications of these laws, and that the
tax laws are applicable to them as well.
4. Please look at the ratio because the details were injected by the Court
there.
ISSUE/s (There were 8 in the case so I grouped them into 3 main categories):
3. W/N the regulation of imports into the French Zone of Morocco is proper -
NO
4. W/N the extent of consular jurisdiction of the U.S. in the French Zone of
Morocco is all encompassing – YES (refer to page 3, number 25-29)
5. W/N Moroccan laws apply to U.S. Nationals even without the prior assent
of the U.S. government? - YES
RULING: On the Submissions of the Government of the French Republic,
unanimously:
1. Rejects its Submissions relating to the Decree of December 30th, 1948,
issued by the Resident General of the French Republic in Morocco ;
2. Finds that the United States of America is entitled, by virtue of the
provisions of its Treaty with Morocco of September 16th, 1836, to exercise
in the French Zone of Morocco consular jurisdiction in al1 disputes, civil or
criminal, between citizens or protégés of the Cnited States ;
3. Finds that the IJnited States of America is also entitled, by virtue of the
General Act of Algeciras of April 7th, 1906, to exercise in the French Zone
of Morocco consular jurisdiction in al1 cases, civil or criminal, brought
against citizens or protégés of the United States, to the extent required by
the provisions of the Act relating to consular jurisdiction
4. Rejects, except as aforesaid, the Submissions of the United States of
America concerning consular jurisdiction
 5. Finds that the United States of America is not entitled' to claim that the
application to citizens of the United States of al1 laws and regulations in the
French Zone of Morocco requires the assent of the Government of the
United States, but that the consular courts of the United States may refuse to
apply to United States citizens laws or regulations which have not been
assented to bv the Government of the United States
6. Rejects the Submissions of the United States of America relating to
exemption from taxes
7. Rejects the Submissions of the United States of America relating to the
consumption taxes imposed by the Shereefian Dahir of February 28th, 1948
8. Finds that, in applying Article 95 of the General Act of Algeciras, the value
of merchandise in the country of origin and its value in the local Moroccan
market are both elements in the appraisal of its cash wholesale value
delivered at the custom-house.
RATIO:
THE REGULATION OF IMPORTS IS IMPROPER
1. Both parties are arguing as to how to apply the Dahir (a decree by the
Moroccan King) of Dec. 30, 1948 which imposes prohibitions on American
imports.
2. The Dahir prohibited the import products into the French Zone of the
Shereefian Empire, other than gold in any form.
3. However, a residential decree was passed on the same day, stating that
goods of French or Algerian origin shall be admitted without any special
formalities.
4. In short, imports without official allocation of currency were subjected to a
system of licensing control, but these regulations did not apply to France or
other parts of the French union. For the latter countries, imports were to be
free of charge.
5. The U.S. now argues that this shows a clear discrimination in favor of
France and that this contravenes its treaty rights.
6. At the center of U.S.’s arguments is the General Act of Algeciras of April 7,
1906 and this document is governed by 3 principles:
a. Sovereignty and independence of His Majesty the Sultan
b. Integrity of his domains
c. Economic liberty without any inequality
7. The case mentions several treaties made by Morocco respectively with
Great Britain, Spain, and Germany which guaranteed these countries certain
rights in matters of trade, including the same issue of imports.
8. These States, including the U.S., were guaranteed economic equality by
virtue of the most-favored-nation clauses in these treaties. These treaties
were the basis for the last principle in the Act of Algeciras.
9. The Court held here that this principle was intended to be of a binding
character and not merely an empty phrase.
10. The French Protectorate over Morocco by virtue of the treaty of March
30, 1912 between France and Morocco, did not modify these principles,
and in a convention between Germany and France, it was even stated that
economic equality would be maintained between them.
11. This Franco-German Convention was made reference to when the French
Ambassador in Washington promised to the U.S. Secretary of State that
France would use her offices in Morocco to prevent differential treatment.
12. Therefore, these show that commercial and economic equality in Morocco
was promised not only by Morocco itself, but by France as its protecting
State.
13. IMPORTANT!!!!! The question now is whether or not France is also
bound by this principle of equality, and thus making it improper for France
to put itself in a more favored position than the other States.
14. It is not disputed that Morocco, even under the protection of the French
Government, has RETAINED ITS PERSONALITY AS A STATE
UNDER INTERNATIONAL LAW.
15. The rights of France in Morocco are defined by the Protectorate Treaty of
1912, and therefore, France is not accorded a privileged position even in
Morocco, the state it protects.
16. This was again confirmed by the French Ambassador in the U.S. when he
promised that the States which Morocco has dealt with will continue
enjoying the equality.
17. There is also a promise that the U.S. recognizes French Court in Morocco,
but that the U.S. also gives up enjoying certain privileges from capitulations
(definition: certain agreements), without losing the advantage.
18. Therefore, the U.S., by virtue of the most-favored-nation clause granted to
it, has the right to object to any discrimination in favor of France in the
matter of imports into the French zone of Morocco.
EXTENT OF THE U.S.’ CONSULAR JURISDCTION IN THE FRENCH
ZONE OF MOROCCO
1. Here, the U.S. argues that by virtue of the 1787 and 1836 treaties, the U.S.
has jurisdiction over cases arising between American citizens, whether civil
or criminal. This also includes the jurisdiction over cases wherein an
American citizen or protégé is the defendant.
2. The Court here categorized 3 classifications of treaties in which Morocco
was involved:
a. Bilateral Treaties of Morocco with several European countries
which covered the period from 1631 – 1892.
i. – Largely concerned with commerce and the rights and
privileges of foreign traders in Morocco.
ii. – Also talked about the grants of consular jurisdiction for
these countries.
iii. – A common element found in the most-favored-nation
clauses was again that there should be no discrimination
among the Powers in Morocco.
iv. – Therefore, when consular jurisdiction was granted to
 Spain and Great Britain, the other States, including the
U.S., automatically had it as well.
b. Multilateral treaties – the Madrid Convention of 1880 and the Act
of Algeciras of 1906.
i. – Because of the abuse which the most-favored-nation
clauses have brought about, these treaties restricted the
rights of protection, and they set limits on the powers of
the Sultan as regards foreigners.
c. Treaties which established the Protectorate
i. – Treaty of Fez of 1912: Morocco remained a sovereign
state but France was to exercise sovereign powers in the
name and on behalf of Morocco.
ii. – As discussed in the first issue, France was also to be
bound by the previous treaty obligations of Morocco.
iii. – The Protectorate also guaranteed judicial equality to
foreigners but this resulted to the renunciation of
capitulatory rights of other States, except for the U.S.
iv. –
3. First, the U.S. argues that according to Art. 20 of the treaty of 1936, the
U.S. should have jurisdiction over all disputes – civil and criminal –
between U.S. Citizens and proteges.
4. France, however, argues that the word “dispute” only limits this jurisdiction
to civil cases.
5. The Court looked at the other treaties of Morocco and how the word
“dispute” was used, and they saw that it pertained to both civil and
criminal disputes.
6. Next, the U.S. argues that this consular jurisdiction has been established by
the most-favored-nation clause, and as well as through custom and usage,
and that this jurisdiction was not affected by the surrender by Great Britain
in 1937 of its rights in the French Zone, nor has it been expressly or
impliedly renounced by the U.S.
7. The U.S. tried to invoke the United States Treaty of 1836 which provides
that they shall be considered the most-favored-nation and that whatever
indulgence, in trade or otherwise, shall be granted to any Christian Power
(e.g. Spain/Great Britain), the Citizens of the U.S. shall be equally entitled
to them.
8. The privileges for consular jurisdiction was granted by Morocco to Great
Britain and Spain in other treaties, and here, such privileges involved both
criminal and civil cases.
9. Like the economic liberty clause in the first issue, due to the most-favored-
nation clause, the U.S. automatically got these rights as well.
10. However, these privileges were renounced by Spain in 1914, and by Great
Britain in 1937.
11. Now that the source of U.S. privileges have been renounced, can the
U.S. still invoke it?
12. There are 2 views need to be taken account to see if this is possible:
a. Principle of personal law and the history of old conflict between
law and jurisdiction. The right of consular jurisdiction was
designed to address a situation wherein Moroccan law was
personal in character, and therefore, should not be applied to
foreigners.
b. Most-favored-nation clauses made with countries like Morocco
should be regarded as a form of drafting by reference, rather than
just a method for maintaining equality among the States.
13. However, looking at the treaties of Morocco with other countries, the
intention of the most-favored nation clauses for all again is to maintain
equality. Therefore, to let the U.S. have consular jurisdiction based on
this point, will violate this. (Aka, if wala ng all-encompassing consular
jurisdiction ‘yung ibang States, dapat wala rin ‘yung sa U.S.)
14. U.S. now tries to argue that even if Great Britain gave up their rights in the
French Zone, such rights are still present in the Spanish Zone. Moreover,
U.S. is saying that it should be on equal footing on the French Zone with
France which exercises jurisdiction over foreigners in the French Zone.
15. The ICJ said that this argument cannot stand because the courts of the
Protectorate in the French Zone are not consular courts – they are Moroccan
courts only organized under French modes and standards which still
guarantees judicial equality to foreigners.
16. Next, the U.S. tries to argue that France and Spain had a Convention
wherein the exercise of Spain of special rights and privileges in the Spanish
Zone was ceded to France as regards the French Zone.
17. Therefore, U.S. argues that since Morocco was not in this agreement, the
rights of Spain still exist de jure, even if there may be a de facto situation
which temporarily prevents their exercise.
18. Though, the ICJ held that this argument cannot stand because the U.S.’s
exercise of consular jurisdiction is limited to the contingent right of re-
establishing consular jurisdiction at some later date when France and Spain
abrogated their agreements.
19. Therefore, the agreements between Spain and France inured to the benefit
of Morocco but came to an end not only de jure but also de facto.
20. By this time, 1950, since Spain cannot anymore exercise consular
jurisdiction in the French Zone, the U.S. cannot as well.
21. The U.S. then tries to argue that extensive consular jurisdiction existed in
Morocco from 1880 and such was recognized and confirmed by the Madrid
Convention.
22. However, the ICJ said that upon examination of the Convention, there was
no provision establishing it as an independent and autonomous right. Even
upon examination of the preamble, no such intention is apparent. Therefore,
this argument cannot stand.
23. Next, U.S. says that consular jurisdiction in Morocco is recognized and
confirmed even by several provisions of the Act of Algeciras and that the
U.S. acquired an autonomous right to exercise such jurisdiction.
24. For the other 11 powers which signed the treaty (aka everyone except
 U.S.), they have stopped exercising consular jurisdiction because Morocco
has made laws and a system for trial and punishment. However, this is not
the case for the U.S.
25. Upon examinations of several provisions in the Act of Algeciras, they
indicate the intention of the parities that certain matters are to be dealt with
by other consular tribunals and to this extent, it is possible to interpret the
provisions of the Act as establishing consular jurisdiction in favor of the
U.S.
26. This is confirmed by Art. 10 and 16 of the Convention between Great
Britain and France in 1937. They state that jurisdictional privileges
“accorded on the basis of existing treaties,” or “enjoyed by the United
States under treaties in present force.”
27. These provisions presuppose that the jurisdictional privileges of the U.S.
would not be limited to what is just stated in the treaty of Morocco.
28. Therefore, France, representing Morocco, and Great Britain were
proceeding upon the assumption that certain provisions of the the Act of
Algeciras recognized a limited consular jurisdiction for the purposes of
judicial proceedings.
29. Therefore, consular jurisdiction of the U.S. continues to exist as may be
necessary to make effective provisions of the Act of Algeciras which
depend on the existence of consular jurisdiction.
30. Lastly, the U.S. also argues that its consular jurisdiction is also based on
custom and usage.
31. The ICJ said that this argument is unmeritorious. First, as mentioned, the
exercise of the U.S. of consular jurisdiction is based on treaty rights, not
custom nor usage.
32. Second, based on the Asylum case (the first ever case for PIL), that the party
asserting a custom must prove its existence in a manner as to show that it
has also become binding on the other party. Here, such was not proven by
the U.S..
APPLICABILITY OF MOROCCAN LAWS WITHOUT U.S.’ ASSENT
33. Now the U.S. tries to argue that U.S. national are not subject to the
application of Moroccan laws unless the U.S. government gives its assent.
34. The U.S. used the regime of Capitulations again for its argument.
35. The ICJ held that this so-called “right of assent” is merely a corollary of the
system of consular jurisdiction.
36. This means that consular courts apply their own law, and not the Moroccan
laws. However, if the consular courts need to use Moroccan law, it was
necessary for the foreign power to provide for the law’s adoption as binding
on the consul. This was usually done via legislation of the foreign power of
by ministerial/consular decrees.
37. This is what the “right of assent” means – that the intervention of the
consular court was necessary to secure the effective enforcement of
Moroccan law against foreign nationals.
38. There are 3 situations wherein the problem with this argument can be seen:
a. Where the application of a Moroccan law to U.S. nationals would
be contrary to the treaty rights of the U.S.. Here, the application of
Moroccan laws would be contrary to international law unless
assented to by the U.S.
b. When the cooperation of the consular courts is required to
implement Moroccan laws. Here, regardless of whether the law
would contravene treaty rights, U.S. will still have to assent before
the law can be fully implemented.
c. When there is a need to apply Moroccan laws, which do not violate
U.S. treaty rights, to U.S. nationals but they need to be enforced
through means other than consular courts. Here, the assent of the
U.S. should not even be required anymore.
39. Therefore, Moroccan laws apply fully to U.S. Nationals.
40. U.S. also tried to argue that U.S. Nationals should not be taxed by Morocco
by virtue of its most-favored-nation clause.
41. First, the ICJ said that the Franco-British Convention and the Spanish
Treaty could not be relied on by the U.S. because these have been abrogated
by the parties involved therein (refer to ratio 16-19 of the second issue).
42. The U.S. tries to invoke Art. 2 and 3 of the Madrid Convention which
grants tax exemptions to proteges. However, protégé is only limited to a
class of persons in the service of diplomatic representatives and consuls of
foreign states. Therefore, no all-encompassing tax exemption can be seen
here.
43. The U.S. contends that the consumption taxes imposed by the Dahir of 1948
are in contravention of special treaty rights, in line with the most-favored-
nation clause.
44. The Dahir provides that consumption taxes shall be payable on all products
imported into the French Zone of Morocco. Therefore, they are not
customs duties, and they are mere fiscal duties.
45. The ICJ has ruled before that the withdrawal of the customs line does not
affect the right of the French Government to collect at the political frontier
fiscal duties not possessing the character of customs duties.
46. Therefore, these consumption taxes do not contravene the treaty rights of
the U.S.
47. Lastly, the U.S. argues that the value of imports from the U.S. must be
determined by adding the expenses incidental to the custom-house in
Morocco, to the purchase value of the imported merchandise in the United
States, exclusive of all customs duties and storage fees.
48. However, the ICJ held that the Act of Algeciras itself creates a formula for
the valuation of goods to conform to the principle of economic equality.
49. Art. 95 states the 4 factors for valuing merchandise:
a. Valuation must be based upon its cash wholesale value;
b. The time and place of the valuation are fixed at the entry of the
merchandise at the custom-house;
c. The merchandise must be valued free from customs duties and
storage dues; and
 d. The valuation must take account of depreciation resulting from
damage, if any.
50. The ICJ said that factor c means before entering the customs office and
paying duties.
51. After examination of several treaties regarding this matter, the ICJ stated
that the Customs authorities in the French Zone should take into
consideration:
a. The Four factors of Art. 95
b. The contents of the declaration which the importer is required by
the Act to file in the custom-house
c. The wholesale cash value in the market of the French Zone; and
d. The cost in the country of origin, plus the cost of loading,
unloading, insurance, freight, and other charges incurred before
goods are delivered at the custom-house.
e. The Schedule of values, if any which may have been prepared by
the Committee on Customs Valuations in Art. 96 or by any
committee which may have been substituted therefore by
arrangements which have been assented to by France and the U.S.;
and
f. Any other factor which is required by the special circumstances of
a particular consignment/kind of merchandise.
006 REPORT OF THE FIFTH COMMITTEE OF FIRST ASSEMBLY
OF THE LEAGUE OF NATIONS, WITH REFERENCE TO
ADMISSION TO THE LEAGUE OF LICHTENSTIEN (TIMBOL)
December 6, 1920 | Fifth Committee to the Assembly
SUMMARY: The Principality of Lichtenstein sought admission to the League
of Nations. In order to be admitted to the membership, it required that any fully
governing state, Dominion or Colony should be able to observe and guarantee
the fulfillment of international obligations and such regulations imposed under
the covenant, with regard to its military, naval and air forces and armaments
(military weapons and equipment). However, although the application was in
order, the Commission rejected the application of Lichtenstein for the ultimate
reason that the Principality of Lichtenstein will not be able to discharge al the
international obligations that may be prescribed.
The Principality of Lichtenstein has been recognized as a de jure government, as
proven by the treaties it has concluded and that it possesses a stable government
and fixed frontiers, there is no doubt that it is a sovereign state. However, by
reason of its limited area, small population, and geographical position, it had to
delegate certain aspects of its sovereignty. It even had diplomatic
representations from other countries, and had to rely on such for decisions in
certain judicial cases. Furthermore, the Principality of Lichtenstein has no army.
Thus, it would be difficult for Lichtenstein to comply with the international
obligations that may be set in accordance with the Covenant.
However, the League of Nations sought the special committee to look for other
means to allow these kind of sovereign states to be admitted, although not as
ordinary members.
ISSUES:
1. WoN the Principality of Lichtenstein may be admitted to the League of
Nations – NO
RULING: The Committee is of opinion that the application of Lichtenstein cannot
be granted, as this State does not appear to be in a position to carry out all the
international obligations imposed by the Covenant. The Committee, however,
expresses the wish of the Special Committee appointed by the Council of the League
of Nations to consider proposals with reference to amendments to the Covenant,
should also consider whether and in what manner it would be possible to attach to
the League of Nations, Sovereign States which, by reason of their small size, could
not be admitted as ordinary members.
RATIO:
THE GOVERNMENT OF LICHTENSTEIN IS RECOGNIZED AS “DE
JURE”
1. The Government of the Principality of Lichtenstein has been recognized de
jure by many States. She (Lichtenstein) has concluded a number of Treaties
with various States, for instance, in 1852 she concluded a Treaty of
Extradition with Belgium; in 1863, she signed the Sanitary Convention of
Dresden.
STABLE GOVERNMENT AND SETTLED FRONTIERS
1. The Principality of Lichtenstein possesses a stable Government and fixed
frontiers. The area of the Principality is 157 square kilometers, and the
population between 10,000 and 11,000.
STATUS OF LICHTENSTEIN AS TO ITS INTERNATIONAL
OBLIGATIONS
1. There can be no doubt that juridically the Principality of Lichtenstein is a
sovereign State, but by reason of her very limited area, small population,
and her geographical position, she has chosen to depute to others some of
the attributes of sovereignty.
2. For instance, she has contracted with other Powers for the control of her
Customs, the administration of her Posts, Telegraphs and Telephone
Services, for the diplomatic representation of her subjects in foreign
countries, other than Switzerland and Austria, and for final decisions in
certain judicial cases.
3. Lichtenstein has no army.
4. For the above reasons, we are of opinion that the Principality of
Lichtenstein could not discharge all the international obligations which
would be imposed on her by the Covenant.
5. M. Motta, who was good enough to appear before us, stated that
Switzerland desired the admission of Lichtenstein to the League as a full
Member, but observed that if this might not proved possible, he hoped that
means might be found by which Lichtenstein might not be left out of the
comity of the League of Nations.
6. He suggested that the Swiss representative might be allowed also to
represent Lichtenstein interests in the League. IF this can be managed in
conformity with the provisions of the Covenant, we see no objection to it,
but the proposal appears to fall outside our references.
 007 TINOCO ARBITRATION (Tolentino)
Oct. 18, 1923 | William H. Taft (Arbitrator) | Recognition of Government
PETITIONER: Great Britain
RESPONDENTS: Costa Rica
SUMMARY: Tinoco, then Secretary of War under Pres. Gonzalez, used the
army and the navy to seize the government and become the commander-in-chief.
He constituted a provisional government at once and summoned the people to an
election for deputies to a constituent assembly on the first of May, 1917. Tinoco
then was inaugurated as the President to administer his powers under the former
constitution until the creation of a new one. A new constitution was adopted
June 8, 1917, supplanting the constitution of 1871. For a full two years Tinoco
and the legislative assembly under him peaceably administered the affairs of the
Government of Costa Rica, and there was no disorder of a revolutionary
character during that interval. However, he renounced his presidency because of
his health. Under the government of Barquero, the old constitution was restored.
Subsequently, Congress passed a Law of Nullities which invalidated all contracts
between the executive power and private persons, made with or without approval
of the legislative power covering the period of the Tinoco government. Because
of this, Great Britain made claims on the basis done to its nationals caused by the
annulments. Costa Rica denies its liability and argued that since Great Britain
did not recognize the Tinoco government, it is now estopped from claiming.
W/N Great Britain was estopped from its claim because of its non-recognition of
the Tinoco Regime? NO, the failure to recognize the de facto government did
not lead the succeeding government to change its position in any way upon the
faith of it. Non-recognition may have aided the succeeding government to come
into power; but subsequent presentation of claims based on the de facto
existence of the previous government and its dealings does not work an injury to
the succeeding government in the nature of a fraud or breach of faith. The non-
recognition of the Tinoco regime by Great Britain did not dispute the de facto
existence of that regime. There is no estoppel since the successor government
had not been led by British non-recognition to change its position.
DOCTRINE: . Non-recognition may have aided the succeeding government to
come into power; but subsequent presentation of claims based on the de facto
existence of the previous government and its dealings does not work an injury to
the succeeding government in the nature of a fraud or breach of faith.
FACTS:
1. In January, 1917, Frederico A. Tinoco was Secretary of War under Alfredo
Gonzalez, the then President of Costa Rica. On the ground that Gonzalez
was seeking reelection as President in violation of a constitutional
limitation, Tinoco used the army and navy to seize the government, assume
the provisional headship of the Republic and become Commander-in- Chief
of the army.
2. Tinoco constituted a provisional government at once and summoned the
people to an election for deputies to a constituent assembly on the first of
May, 1917. At the same time, he directed an election to take place for the
Presidency and he became a candidate.
3. Tinoco then was inaugurated as the President to administer his powers
under the former constitution until the creation of a new one. A new
constitution was adopted June 8, 1917, supplanting the constitution of 1871.
For a full two years Tinoco and the legislative assembly under him
peaceably administered the affairs of the Government of Costa Rica, and
there was no disorder of a revolutionary character during that interval.
However, he renounced his presidency because of his health.
4. After a provisional government under one Barquero, the old constitution
was restored and elections held under it. The restored government is a
signatory to this treaty of arbitration.
5. In 1922, the Constitutional Congress of the restored Costa Rican
Government passed a law known as Law of Nullities No. 41.
a. It invalidated all contracts between the executive power and
private persons, made with or without approval of the legislative
power covering the period of the Tinoco government.
b. It also nullified the legislative decree No. 12 of the Tinoco
government authorizing the issue of the fifteen million colones
currency notes. The colon is a Costa Rican gold coin or standard
nominally equal to forty-six and one-half cents of an American
dollar, but it is uncoined and the exchange value of the paper colon
actually in circulation is much less.
c. The Nullities Law also invalidated the legislative decree of the
Tinoco government authorizing the circulation of notes of the
nomination of 1,000 colones, and annulled all transactions with
such colones bills between holders and the state, directly or
indirectly, by means of negotiation or contract, if thereby the
holders received value as if they were ordinary bills of current
issue.
6. Great Britain argued that:
a. Banco Internacional of Costa Rica and the Government of Costa
Rica are both indebted to the Royal Bank (Britain Corporation) in
the sum of 998,000 colones, evidenced by 998 one thousand
colones bills held by the Bank; that the Central Costa Rica
Petroleum Company owns, by due assignment, a grant by the
Tinoco government in 1918 of the right to explore for an exploit
oil deposits in Costa Rica, and that both the indebtedness and the
concession have been annulled without right by the Law of
Nullities and should be excepted from its operation.
7. The Government of Costa Rica denies its liability for the acts or obligations
of the Tinoco government and maintains that the Law of Nullities was a
legitimate exercise of its legitimate governing power.
ISSUE/s:
8. What is the status of the Tinoco Regime in international law – actual
sovereign government/ de facto government
9. Was Great Britain estopped from pursuing its claims because it never
recognized the Tinoco government either de jure or de facto – NO, non-
recognition of Great Britain did not dispute the de facto existence of that
regime.
RATIO:
1. Many leading Powers refused to recognize the Tinoco government, and that
recognition by other nations is the chief and best evidence of the birth,
existence and continuity of succession of a government. Undoubtedly
recognition by other Powers is an important evidential factor in establishing
proof of the existence of a government in the society of nations. (Tinoco
government was recognized by 20 States)
a. The non-recognition by other nations of a government claiming to
be a national personality, is usually appropriate evidence that it has
not attained the independence and control entitling it by
international law to be classed as such.
b. But when such recognition of a government is by such nations
determined by inquiry, not into its de facto sovereignty and
complete governmental control, but into its illegitimacy or
irregularity of origin, their non-recognition loses something of
evidential weight on the issue with which those applying the rules
of international law are alone concerned.
c. What is true of the non-recognition of the United States in its
bearing upon the existence of a de facto government under Tinoco
for 30 months is probably in a measure true of the non-recognition
by her Allies in the European War.
d. Such non-recognition for any reason, however, cannot outweigh
the evidence disclosed by this record before me as to the de facto
character of Tinoco's government, according to the standard set by
international law.
2. Costa Rica argued that the Tinoco government cannot be considered a de
facto government because it was not established and maintained in accord
with the Constitution of Costa Rica of 1871.
a. To hold that a government which establishes itself and maintains a
peaceful administration, with the acquiescence of the people for a
substantial period of time, does not become a de facto government
unless it conforms to a previous constitution would be to hold that
within the rules of international law a revolution contrary to the
fundamental law of the existing government cannot establish a new
government. This cannot be, and is not, true. The change by
revolution upsets the rule of the authorities in power under the
then existing fundamental law, and sets aside the fundamental
law in so far as the change of rule makes it necessary. To speak
of a revolutionary government, which conforms to the limitations
of the old constitution is to use a contradiction in terms. The same
government continues internationally, but not the internal law
of its being.
3. Costa Rica further objected that Great Britain by her failure to recognize the
Tinoco government is estopped now to urge claims of her subjects
dependent upon the acts and contracts of the government.
a. Here the executive of Great Britain takes the position that the
Tinoco government which it did not recognize, was nevertheless a
de facto government that could create rights in British subjects
which it now seeks to protect. However, its failure to recognize the
de facto government can be used against it as evidence to disprove
the character it now attributes to that government, but this does not
bar it from changing its position. Should a case arise in one of its
own courts after it has has changed its position doubtless that court
would feel it incumbent upon it to not the change in its further
rulings.
b. It may be urged that it would be in the interest of the stability of
governments and the orderly adjustment of international relations,
and so a proper rule of international law, that a government in
recognizing or refusing to recognize a government claiming
admission to the society of nations should thereafter be held to an
attitude consistent with its deliberate conclusion in this issues.
c. The failure to recognize the de facto government did not lead the
succeeding government to change its position in any way upon the
faith of it. Non-recognition may have aided the succeeding
government to come into power; but subsequent presentation
of claims based on the de facto existence of the previous
government and its dealings does not work an injury to the
succeeding government in the nature of a fraud or breach of
faith. An equitable estoppel to prove the truth must rest on
previous conduct of the person to be estopped, which has led the
person claiming the estoppel into a position in which the truth will
injure him. There is no such case here.
d. The non-recognition of the Tinoco regime by Great Britain did not
dispute the de facto existence of that regime. There is no estoppel
since the successor government had not been led by British non-
recognition to change its position. Hence, valid contracts may be
formed by unrecognized government.
(NOTE: Combination of Bernas, PIL Harris, and the case itself. Nahirapan ako sa case sorry. Nawala
ang… tinoco. Huhu)
 008 Western Sahara Case (Valle)
16 October 1975 | General Assembly of the UN | States
PARTIES: Spain, Morocco, Mauritian Entity, Western Sahara
SUMMARY:
In question are the legal ties and the existence of the Sultan of Morroco and
some of the tribes in Western Sahara. Back then, the tribes consisted of nomadic
people who transferred from one portion of land to another. This fact was taken
into consideration by the Courts in arriving at a conclusion for the advisory
opinion. The court couldn’t limit themselves to the question of legal ties in
relation to territory alone.
According to the Court, there are legal ties between the (1)Western Sahara and
the Kingdom of Morocco and the legal ties between(2) Western Sahara and the
Mauritian entity.
As for the first pair, the court says that even considering the special structure of
Morocco which claims its authority over the tribes via religion and not territory,
there are no legal ties in relation to sovereignty over territory. But there are legal
ties between Western Sahara and the Kingdom of Morocco because of allegiance
to the Sultan of Morocco. The Sultan, in some of the tribes, was recognized by
some of the tribes as one who has authority and influence over them.
As for the second pair, the court said that even though there existed between the
two linguistic, religious etc ties, there was no common institution or organ.
The court cannot consider Mauritanian entity as a character of personality or
corporate entity distinct from the several emirates or tribes which composed it.
Therefore, there was no legal tie of allegiance or sovereignity. BUT! The court
did consider that because of the nature of the nomadic tribes that migrated, there
are rights over the lands that the nomadic tribes migrated through. This
constituted the legal ties between the two states.
DOCTRINE:
Legal ties must be understood as the legal ties as may affect the policy to be
followed in the decolonization of Western Sahara. The court cannot consider
the view that the ties could be limited to ties established directly with the
territory. It must also consider the ties with its population.
FACTS:
24. In question are the legal ties and their existence between the Sultan of
Morocco and some of the tribes living in the territory of Western Sahara at
the time of the Spanish colonization. The parties have sought for the
advisory opinion of the General Assembly of the United Nations.
25. Spain claims that the case involves the dispute concerning the attribution of
territorial sovereignty over Wetsern Sahara and that the consent of the
States was always necessary for the adjudication of the dispute. With this,
Spain is objecting the propriety of the Court to give an advisory opinion.
ISSUE/s: (Included issues not related to topic but in bold is the issue under the
topic)
10. Was western Sagara (Rio de Oro and Sakiet El Hamra) at the time of the
colonization by Spain a territory belonging to no one (Terra nullius) – No.
It was not a territory belonging to no one.
11. What were the legal ties between this territory and the Kingdom of
Morocco and the Mauritanuan entity? – There were legal ties between this
territory and the Kingdom of Morocco.
12. Whether the term “Mauritian entity” can be considered as a state –
There are no legal ties of sovereignty but there are legal ties in relation
to the nomadic tribes’ rights in the lands which through they migrated.
RULING: The materials and information presented to the Court show the existence,
at the time of Spanish colonization, of legal ties of allegiance between the Sultan of
Morocco and some of the tribes living in Western Sahara.
RATIO:
22. Whether Western sahara at the time of the colonization of the Spaniards, a
territory of no one
a. The colonization of Spain began in 1884 when Spain had
proclaimed ts protectorate over Rio De Oro. It is by reference of
the law in force over that period that the legal concept of terra
nullius must be interpreted.
b. In law, occupation was a means of peaceably acquiring
sovereignty over territory otherwise than by cession or
succession.
c. It is critical for occupation to happen that the territory be terra
nullius. According to the State practice in that period, territories
inhabited by tribes or peoples having a social and political
organization were not regarded as terra nullius.
d. In this case, it was not through occupation but through agreements
concluded with local rulers that can start the effect of occupation.
e. At the time of the colonization, Western Sahara was inhabited
by peoples which, if nomadic, were socially and politically
organized in tribes and under chiefs competent to represent
them. Also, Spain did NOT proceed upon the basis that it was
establishing sovereignty over terra nullius. (It means Spain didn’t
say that this is not terra nullius so Spain must proclaim
sovereignty).
f. Instead, it was then that the King of Spain proclaimed that he was
taking Rio de Oro under his protection under the basis of
agreements entered into with the chiefs of local tribes. (The King
of Spain with this proclamation recognized that Western Sahara
had rulers and was not terra nullius.)
g. Therfore, then, Western Sahara was NOT terra nullius.
23. What were the legal ties of this territory with the Kingdom of Morocco and
the Mauritanian entity?
a. Legal ties must be understood as the legal ties as may affect the
policy to be followed in the decolonization of Western Sahara.
The court cannot consider the view that the ties could be
limited to ties established directly with the territory. It must
also consider the ties with its population.
b. Back then, the population was sparse and consisted mostly of
nomadic tribes the members of which traversed the desert on more
or less regular routes. Sometimes reaching southern Morocco or
regions of present-day Mauritania, Algeria, or other States.
c. Morocco claims to the legal ties with Western Sahara of an alleged
immemorial possession of the territory and uninterrupted exercise
of authority.
d. But the court says that there must be evidence directly relating to
the effective display of authority over the people. To this, Morocco
said that the court has to consider the special structure of the
Moroccan state. That Morocco was not under the notion of
territory but of religious bond (Islam) and its allegiance to the
other tribes to the Sultan. It consisted of the Bled Makhzen (the
areas subject to the Sultan) and the Bled Siba (Those not under the
Sultan).
e. With this, Morocco invokes acts of internal display of Moroccan
authority. He uses as evidence the allegiance of the Saharan caids
to the Sultan, the documents that showed the Sultan appointing
caids and dahirs, the imposition of Koranic and other taxes.
f. Morocco also relied on international acts such as certain treaties
with Spain, the US, and Great Britain and Spain between 1767 and
1861 (dealt inter alia with the safety of persons shipwrecked on the
coast or its vicinity), certain bilateral treaties whereby Great
Britain, Spain, France, and Germany were said to have recognized
the Moroccan Sovereignity that extended over the boundary of Rio
de Oro.
g. The court finds that neither the internal nor the international
acts indicate the existence at the relevant period of either the
existence or the internal recognition of legal ties of territorial
sovereignty between Western Sahara and the Moroccan state. Even
if they take into account the special structure of Morroco, it doesn’t
show the effective and exclusive display State activity in Western
Sahara.
h. BUT! They do provide indications of legal ties of allegiance
between the Sultan and some of the nomadic tribes. They
showed that the Sultan displayed and was recognized by other
States to possess, some authority or influence over those tribes.
24. Whether Mauritian entity can be considered a state. (Note: this question was
answered not as a main issue in the case but as a relevant question to
answer the second issue).
a. Maritian Entity denotes the cultural, geographical and social
entity within which Islamic republic of Mauritania was to be
created.
b. According to Mauritania, that entity, was the Bilad Shinguitti a
disntinct human unit, characterized by common language, way of
life, religion, and system of laws, featuring two types of political
authority: emirates and tribal groups.
c. Mauritania suggests that to consider the entity a state, the court
must look at the concepts of “nation” and of “people”. At that
period, the Mauritian entity extended from the Senegal river to the
Wad Sakiet El Hamra. The territory at present under Spanish
Administration and the present territory of the Islamic Republic of
Mauritania together constituted indisssociable parts of a single
entity and had legal ties to one another.
d. Even though there existed among them many ties of racial,
linguistic, religion etc. the emirates and many of the tribes were
independent in relation to one another. They had no common
institutions or organs.
e. The Mauritanian entity therefore did not have the character of a
personality or corporate entity distinct from the several
emirates or tribes which composed it.
f. There did not exist between the territory of Western Sahara
and Mauritaian entity any tie of sovereignty or of allegiance of
tribes or of simple inclusion in the same legal entity.
g. However, the court considers that the nomadic peoples of the
Shinguitti possessed rights, including those rights relating to the
lands through which they migrated. These rights constituted legal
ties between Western Sahara and the Mauritanian entity.
i. (Note: the court came to this conclusion because they
didn’t feel like confining the question exclusively to the
legal ties which imply territorial sovereignty. Kasi, the
countries then consisted of nomadic tribes which
transferred from one location to another so the court
couldn’t enclose themselves in territory lang.)
h. The court says at the end of the case that it was difficult to
disentangle the relationships existing at that time because of
overlapping of the nomadic routes.
 009 Commonwealth of South Australia v. State of New South Wales
(Vargas)
1923 | CJ Knox | Personality under International Law
PETITIONER: The Commonwealth of South Australia
RESPONDENT: The State of New South Wales
SUMMARY: An action for damages was instituted by the Commonwealth
against the State of New South Wales because of a collision which took place in
Port Jackson. The defendant (New South Wales) argued that the High Court has
no jurisdiction to entertain an action brought by the Commonwealth against the
State of New South Wales without the consent of that State. The case was
brought before the Full Court. The issue is WON the High Court has
jurisdiction to try cases filed against the State of New South Wales without its
consent. The Court ruled in the affirmative saying that the Australian
Constitution conferred jurisdiction to it. More importantly (and in relation to our
topic), the State of New South Wales cannot argue that the Commonwealth sued
it without its consent. As a consequence of the absolute independence of every
sovereign authority and of the international comity which induces every
sovereign State to respect the independence of every other sovereign State, each
State declines to exercise by means of any of its Courts any of its territorial
jurisdiction. There is nothing in the Constitution to prevent the Court from
observing in a proper case the respect due to the independence and dignity of
foreign nations on the principle of international comity. In this case, however,
the State of New South Wales, as an Australian State, cannot be regarded as a
sovereign State. It is not a foreign country as regards the Commonwealth.
DOCTRINE: The High Court has jurisdiction to entertain an action for a tort
brought by the Commonwealth against a State without the consent of that State.
In this case, the State of New South Wales is not a “sovereign State” which is
protected by the principle of international comity.
FACTS:
1. An action was instituted by the Commonwealth of Australia in the High
Court of Australia against the State of New South Wales to recover
damages for injuries caused to a Commonwealth ship in a collision with a
ship belonging to the State.
2. The defendant New South Wales applied to the Court to set aside said
action on the ground that New South Wales was a “sovereign State” and as
such, it could be be sued without its own consent.
3. By Sec. 75 of the Australian Constitution, it is provided that, “In all matters
in which the Commonwealth, or a person suing or being sued on behalf of
the Commonwealth is a party, the High Court shall have original
jurisdiction.
ISSUE/s:
1. WON the High Court has jurisdiction to try said action against the State of
New South Wales - YES. Jurisdiction was conferred by the text of Sec. 75
of the Constitution.
RULING: Application dismissed with costs.
RATIO:
1. The whole Court agreed in holding that jurisdiction was conferred by the text of
Sec. 75 of the Constitution. Moreover, it has been held that States of the
Commonwealth were not, for purposes within the Constitution, to be
regarded sovereign States.
2. As a consequence of the absolute independence of every sovereign authority and
of the international comity which induces every sovereign State to respect the
independence of every other sovereign State, each State declines to exercise by
means of any of its Courts any of its territorial jurisdiction over the person of any
sovereign or ambassador, or over the public property of any State which is
destined to its public use, or over the property of any ambassador, though such
sovereign, ambassador, or property be within its territory.
3. There is nothing in the Constitution to prevent the Court from observing in a
proper case the respect due to the independence and dignity of foreign nations on
the principle of international comity. However, this principle cannot be applied to
this case because New South Wales is an Australian State, and integral part of the
territory of the Commonwealth.
4. The New South Wales is not a foreign country. The people of New South Wales
are not distinct and separate from the people of Australia. The Commonwealth
includes the people of South Wales as they are united with their fellow
Australians as one people for the higher purposes of common citizenship, as
created by the Constitution.
5. When the Commonwealth is present in Court as a party, the people of New South
Wales cannot be absent. It is only where the limits of wider citizenship end that
separateness of the people of a State as a political organism can exist.
6. To appeal to the analogy of an entirely foreign independent State is to appeal to
an impossible standard. The conclusion to which we are invited to come in
interpreting the Constitution upon the assumption that New South Wales is a
“sovereign State” would be both mischievous and unfounded.
 010 INT’L STATUS OF SOUTH-WEST AFRICA (Vicencio)
July 11, 1950 | ICJ | Personality Under International Law: States
PETITIONER: General Assembly of the United Nations (GA)
RESPONDENTS: Union of South Africa (Note: Not actual petitioner and
respondent; the GA here just sought advisory opinion regarding the issue)
SUMMARY: After the war of 1914-1918, South-West Africa ws placed under a
Mandate conferred upon the Union of South Africa. The Union was to have full
power of administration and legislation over the territory. After WW II, the
Union alleged that the Mandate System has lapsed and sought recognition from
the UN to integrate South-West Africa to the Union. The UN declined and
instead suggested that South-West Africe be placed under Trusteeship of the
Union. The Union refused, hence the GA went to the ICJ for advisory opinion.
The ICJ held that the Union cannot unilaterally modify the international status of
the Territory under it, or any other international rules. The consent of the
Council of the League, now the GA of the UN, is required for any medication.
The ICJ also held that putting the territories is not in fact mandatory for the
Union to do, but that the Mandatory (Union) was still under an obligation to give
an account of its administration to the UN, which was legally qualified to
discharge the supervisory functions formerly exercised by the League of
Nations.
DOCTRINE: The international status of the Territory results from the
international rules regulating the rights, powers and obligations relating to the
administration of the Territory and the supervision of that administration. The
Mandatory (the Union herein) has no competence to modify unilaterally the
international status of the Territory or any of these international rules. Art. 7 of
the Mandate expressly provides that the consent of the Council of the League of
Nations (now UN GA) is required for any modification of the terms of the
Mandate.
FACTS:
26. The Territory of South-West Africa was one of the German overseas
possessions. Germany, then, by Article 119 of the Treaty of Versailles
renounced all her rights and titles in favour of the Principal Allied and
Associated Powers.
27. After the war of 1914-1918, this Territory was placed under a Mandate
conferred upon the Union of South Africa (Union) which was to have full
power of administration and legislation over the Territory as an integral
portion of the Union.
28. The Union Government was to exercise an international function of
administration on behalf of the League of Nations, with the object of
promoting the well-being and development of the inhabitants.
29. After the second world war, the Union, alleging that the Mandate System hd
lapsed, sough the recognition of the United Nations (UN) of the integration
of the Territory to the Union.
30. The UN refused their consent to this integration and invited the Union of
South Africa to instead place the Territory under Trusteeship, according to
the provisions of Chapter XII of the UN Charter.
31. The Union refused to comply, hence, the General Assembly sought the
advisory opinion of the ICJ on the legal aspects of the case, and decided to
submit the following questions: What is the international status of the
Territory of South-West Africa, and what are the international obligations
of the Union of South Africa arising therefrom (later on referred in Ruling
Part of this Digest as the General Question).
32. In particular, the GA submitted the following questions: See Issues Part of
this Digest.
ISSUE/s:
1. Does the Union of South Africa continue to have international obligations
under the Mandate for South-West Africa and, if so, what are those
obligations? – YES, the obligations in Ruling Part
2. Are the provisions of Chapter XII of the UN Charter applicable and, if so,
in what manner, to the Territory of South-West Africa? – YES, the Terrioty
may be brough under Trusteeship
3. Has the Union of South Africa the competence to modify the
international status of the Territory of South-West Africa, or, in the
event of a negative reply, where does competence rest to determine and
modify the international status of the Territory? – NO, it needs the
consent of the UN.
RULING:
On the General Question: that South-West Africa is a territory under the
international Mandate assumed by the Union of South Africa
On Question 1: that the Union of South Africa continues to have the international
obligations stated in Article 22 of the Covenant of the League of Nations and in the
Mandate for South-West Africa as well as the obligation to transmit petitions from
the inhabitants of that Territory, the supervisory functions to be exercised by the
United Nations, to which the annual reports and the petitions are to be submitted, and
the reference to the Permanent Court of International Justice to be replaced by a
reference to the International Court of Justice, in accordance with Article 7 of the
Mandate and Article 37 of the Statute of the Court
On Question 2: that the provisions of Chapter XII of the Charter are applicable to the
Territory of South-West Africa in the sense that they provide a means by which the
Territory may be brought under the Trusteeship System; and that the provisions of
Chapter XII of the Charter do not impose on the Union of South Africa a legal
obligation to place the Territory under the Trusteeship System

On Question 3: that the Union of South Africa acting alone has not the
competence to modify the international status of the Territory of South-West
Africa, and that the competence to determine and modify the international
status of the Territory rests with the Union of South Africa acting with the
consent of the United Nations.
RATIO:
First Question/Issue:
25. The international obligations assumed by the Union of South Africa were of
two kinds.
a. One kind was directly related to the administration of the Territory.
This was labeled as the “sacred trust of civilization” in article 22 of
the Covenant;
b. The other kind related to the machinery for implementation and
was closely linked to the supervision and control of the League. It
was labeled as the “securities for the performance of this trust” in
the Same Article.
26. Regarding the first set obligations: The obligations of the first goup
represent the very essence of the sacred trust of'civilization. Their raison d'
etre and original object remain.
27. Since their fulfilment did not depend on the existence of the League of
Nations, they could not be brought to an end merely because this
supervisory organ ceased to exist.
28. This view is confirmed by Article 80, par. 1 of the Charter, maintaining the
rights of States and peoples and the terms of existing international
instruments until the territories in question are placed under the trusteeship
system.
29. Moreover, the resolution of the League of Nations of April 18, 1946, said
that the League’s functions with respect to mandated territories would come
to an end; it did not say that the Mandates themselves came to an end.
30. By this Resolution the Assembly of the League of Nations manifested its
understanding that the Mandates would continue in existence until “other
arrangements” were established and the Union of South Africa, in
declarations made to the League of Nations as well as to the United
Nations, had recognized that its obligations under the Mandate continued
after the disappearance of the League.
31. Interpretations placed upon legal instruments by the parties to them, though
not conclusive as to their meaning, have considerable probative value when
they contain recognition by a party of its own obligations under an
instrument.
32. Regarding the second group of obligations: the Court said doubts might
arise from the fact that the supervisory functions of the League with regard
to mandated territories not placed under the new trusteeship system, that
they were neither expressly transferred to the UN, nor expressly assumed by
the UN.
33. Nevertheless, the obligation incumbent upon a Mandatory State to accept
international supervision and to submit reports is an important part of the
Mandates System.
34. It could not be concluded that the obligation to submit to supervision had
disappeared merely because the supervisory organ had ceased to exist, when
the United Nations had another international organ performing similar,
though not identical, supervisory functions.
35. The Court held that the dissolution of the League of Nations and its
supervisory machinery had not entailed the lapse of the Mandate, and that
the Mandatory was still under an obligation to give an account of its
administration to the United Nations, which was legally qualified to
discharge the supervisory functions formerly exercised by the League of
Nations.
36. The degree of supervision to be exercised by the General Assembly should
not, however, exceed that which applied under the Mandates System and
should conform as far as possible to the procedure followed in this respect
by the Council of the League of Nations.
Second Question/Issue:
37. The Court said that the provisions of this chapter did not impose upon the
Union of South Africa an obligation to put the Territory Trusteeship by
means of a Trusteeship Agreement.
38. This opinion is based on the permissive language of Articles 75 and 77.
These Articles refer to an “agreement”, which implies consent of the
parties. The fact that Article 77 refers to the “voluntary” placement of
certain Territories under Trusteeship does not show that the placing of other
territories under Trusteeship is compulsory.
39. The Court considered that if Article 80, par. 2 had been intended to create
an obligation for a Mandatory State to negotiate and conclude an
agreement, such intention would have been expressed in a direct manner.
40. If it may be concluded that it was expected that the mandatory States would
follow the normal course indicated by the Charter and conclude Trusteeship
Agreements, the Court was unable to deduct from these general
considerations that to conclude or negotiate such agreements is a legal
obligation.
41. It is not for the Court to pronounce on the political or moral duties which
these considerationsmay involve.
Thirs Question/Issue:
42. The international status of the Territory results from the international
rules regulating the rights, powers and obligations relating to the
administration of the Territory and the supervision of that
administration, as embodied in Article 22 of the Covenant and in the
Mandate.
43. It is clear that the Union has no competence to modify unilaterally the
international status of the Territory or any of these international rules.
44. It repeated that the normal way of modifying the international status of
the Territory would be to place it under the Trusteeship System by
means of a Trusteeship Agreement, in accordance with, the provisions
of Chapter XII of the Charter.
45. Article 7 of the Mandate required the authorisation of the Council of
the League for any modifications of its terms.
46. In accordance with the reply given to the first question, the Court said
that those powers of supervision now belong to the General Assembly
of the United Nations.
47. Articles 79 and 85 of the Charter required that a trusteeship agreement
be approved by the General Assembly.
48. By analogy it could be inferred that the same procedure was applicable
to any modification of the international status of a territory under
Mandate which would not have for its purpose the placing of the
territory under the trusteeship system.
49. Moreover, the Union of South Africa itself decided to submit the
question of the future international status of the territory to the
“judgment” of the General Assembly as the “competent international
organ.”
50. In so doing, the Union recognised the competence of the General
Assembly in the matter.
51. On the basis of these considerations, the Court concluded that competence
to determine and modify the international status of the Territory rested with
the Union, acting in agreement with the United Nations.
 011 LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED
PRESENCE OF SOUTH AFRICA IN NAMIBIA (SOUTH-WEST AFRICA)
NOTWITHSTANDING SE- CURITY COUNCIL RESOLUTION 276 (1970)
(Villavicencio)
June 21, 1971 | President Sir Muhammad Zafrulla Khan| States
PETITIONER:
RESPONDENTS:
SUMMARY: The Mandate for South West Africa was terminated. This
Mandate was created by the League of Nations to aid humanity as a sacred trust
of civilisation. The concept of sacred trust was given to all territories that have
not yet attained self-government. The Mandate gave South Africa the right to
administer Namibia. But, due to several reasons, the General Assembly
terminated such mandate. Security Council 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. 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. Hence, this document. Read
Ratio for the consequences.
DOCTRINE: In the view of the Court, the termination of the Mandate and the
declaration of the illegality of South Africa’s presence in Namibia are opposable
to all States in the sense of barring erga omnes the legality of the situation which
is in violation of international law.
FACTS:
1. General Assembly decided that the Mandate for South West Africa was
terminated and that South Africa had no other right to administer the said
territory of Namibia.
2. "The Mandate was created, in the interest of the inhabitants of the territory,
aid of humanity in general, as an international institution with an
international object-a sacred trust of civilisation."
3. In every case of mandate, the Mandatory shall render to the Council an
annual report in reference to the territory committed to its charge
4. The concept of the sacred trust was confirmed and expanded to al1
"territories whose peoples have not yet attained a full measure of self-
government"
5. On 9 February 1946 the General Assembly, by resolution 9 (1), invited al1
States administering territories held under mandate to submit trustee- ship
agreements.
6. All, with the exception of South Africa, responded by placing the respective
territories under the trusteeship system or offering them independence.
7. Security Council 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.
8. It further called upon all States to refrain from any dealings with the South
African Government that were incompatible with that declaration.
9. 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.
ISSUE/s:
13. What are the Legal Consequences for States ofthe Continued Presence of
South Africa in Namibia? All of ratio.
RULING: The Mandate for South West Africa is terminated. South Africa has no
right to administer the said territory of Namibia. Thus, there are legal consequences
for States with continued presence in Namibia.
RATIO:
52. (a) Member States are under obligatioin (subject to (d) below) to abstain
from entering into treaty relations with South Africa in all cases in which
the Government of South Africa purports to act on behalf of or conccming
Namibia.
53. With respect to existing bilateral treaties mernber States must abstain from
invoking or applying those treaties or provi- sions of treaties concluded by
South Africa on behalf of or concerning Namibia which involve active
intergovernmental co-operation.
54. With respect to multilateral treaties, the same rule cannot be applied to
certain general conventions such as those with humanitarian character, the
non-performance of which may adverselyaffectthe people of Nrunibia: it
will be for the competent: international organs to take specific measures in
this respect.
55. (b) Member States are under obligation to abstain from sending diplomatic
or special missions to South Africa including in their jurisdiction the
territory of Namibia, to abstain from sending consular agents to Namibia,
and to withdraw any such agents already there; and to make it clear to South
Africa that the maintenance of diplomatic or consular relations does not
imply any recognition of its authority with regard to Namibia.
56. (c) Member States are under obligation to abstain from entering into
economic and other forms of relations with South African behalf of or
concerning Namibia which may entrench its authority over the territory.
57. (d) However, non-recognition should not result in depriving the people of
Namibia of any advantages derived 
from international co-operation. In
particular, the illegality
or invalidity of acts performed by the Government
of South Africa on behalf of or concerningNamibia after the termination of
 the Mandate cannot be extended to such acts as the registration of births,
deaths and marriages.
58. As to States not members of the United Nations, although they are not
bound by Articles 24 and 25 of the Charter, they have been called ufmn by
resolution 276 (1970) to give as- sistance in the action which has been taken
by the United Nations with regard to Namibia.
59. In the view of the Court, the termination of the Mandate and the declaration
of the illegality of South Africa’s presence in Namibia are opposable to all
States in the sense of barring erga omnes the legality of the situation which
is in violation of international law.
60. erga omnes obligations are those obligations of one state towards the
international community as a whole, of which the rights involves are of
such importance that all states can be held to have a legal interest in their
protection. (not in the opinion, I added this)
61. Examples of erga omnes norms include piracy, genocide, slavery, and racial
discrimination. (I added this also)
62. In particular, State which enters into relations with South Africa concerning
Namibia may expect the United Nations or its Members to recognize the
validity or effects of any such relationship,
 012 OPINIONS OF THE ARBITRATION CONFERECE of participation and
EUROPEAN COMMISSION CONFERENCE ON YUGOSLAVIA representativeness inherent in a
(Yap) federal state.
January 11 & July 4, 1992 | Arbitration Conference | States; Dissolution • It is now up to those Republics to work
together to form a new association endowed
PARTIES: Soviet Federal Republic of Yugoslavia (SFRY) – Slovenia, Croatia, with the democratic institutions of their
Macedonia, Bosnia, Herzegovina, et. al. choice.
2. Whether the Serbian • Right to self-determination – right to freely
The left side of the table below is the summarized answer to the issue. population of Croatia and determine political status and freely pursue
Bosnia-Herzegovina have their economic, social and cultural
FACTS: the right to self- development.
33. August 27 Declaration – the European Community (EC) and its member determination. • Where there are one or more groups within a
States agreed to convene a Peace (Arbitration) Commission on Yugoslavia
State constituting on or more ethnic, religious
– the task of the commission being to render opinions on questions ANSWER: YES. Where or language communities, they have the right
submitted by the independent states which were formerly part of the Soviet there are one or more groups to recognition of their identity under
Federal Republic of Yugoslavia (SFRY). within a State constituting international law.
34. The Declaration did not specify which law the Arbitration Commission on or more ethnic, religious o The now peremptory norms of
would apply, so the latter rendered its opinions on the basis of principles of or language communities, international law require States to
international law and of peremptory norms of international law (jus they have the right to ensure respect for the rights of their
cogens). recognition of their identity minorities.
35. (Each of the States intermittently submitted questions to the Arbitration under international law.
Commission for the latter’s opinion, which is why there are 10 opinions • Art. 1 of the 1966 International Covenant on
under this document. I treated each question as an issue.) Human Rights establishes that the principle of
the right to self-determination serves to
safeguard human rights.
Issues Submitted for Opinions o One consequence of this principle is
1. Whether each member • State – a community which consists of a for the members of the Serbian
state of the disintegrating territory and a population subject to an population in Bosnia-Herzegovina
SFRY shall be considered organized political authority; that such a State and Croatia to be recognized under
equal successors to the is characterized by sovereignty. agreements between the Republics as
SFRY. o The existence of a “federal-type having the nationality of their choice,
state” implies that the federal organs with all the rights and obligations
ANSWER: YES. State represent the components of the which that entails with respect to the
succession is the replacement Federation and wield effective States concerned.
of one State by another in power. 3. Whether the internal • Frontier – the political and geographical area
the responsibility for the • State Succession – the replacement of one boundaries between near or beyond a boundary.
international relations of State by another in the responsibility for the Croatia and Serbia and • First, all external frontiers must be respected
territory; occurs whenever international relations of territory; occurs between Bosnia- pursuant to the UN Charter, Hesinki Final
there is a change in the whenever there is a change in the territory of Herzegovina and Serbia Act, Vienna Convention, etc.
territory of the State. the State. be regarded as “frontiers” • Second, the boundaries between Croatia and
• The Republics (Slovenia, Croatia, Macedonia, in terms of public Serbia, between Bosnia-Herzegovina and
and Bosnia-Herzegovina) have expressed their international law. Serbia, and possibly between other adjacent
desire for independence. independent States may not be altered except
o Hence, the composition and ANSWER: YES. The by agreement freely arrived at.
workings of the essential organs of boundaries between Croatia • Third, except where otherwise agreed, the
the SFRY no longer meet the criteria and Serbia, between Bosnia- former boundaries become frontiers protected
Herzegovina and Serbia, and
possibly between other
adjacent independent States
may not be altered except by
agreement freely arrived at.
4. Whether the Socialist
Republic of Bosnia-
Herzegovina may be
recognized by the member
states of the European
Community.
ANSWER: NO. (Recite
events 1, 2 and 3)
5. Whether the Republic of
Croatia may be
recognized by the member
states of the European
Community.
ANSWER: YES, with
reservation. Their
Constitutional Act
(acceptance) does not fully
incorporate all the
provisions of the draft
Convention re: “Special
Status.” They must
supplement first to comply.
by international law. the Republic of Croatia meets the necessary
• Fourth, according to a well-established conditions for tis recognition.
principle of international law, the alteration of 6. Whether the Republic of • The Republic of Macedonia adopted a
existing frontiers or boundaries by force is not Macedonia may be Constitution embodying the democratic
capable of producing any legal effect. recognized by the member structures and the guarantees for human rights
• The Constitution of Bosnia-Herzegovina states of the European which are in operation in Europe.
provides that the citizens exercise their Community. • Furthermore, they amended the Constitution
powers through a Representative Assembly or to include the following:
by referendum. ANSWER: YES. The 1. Republic of Macedonia has no
o Events: (1) Serbian People of Republic of Macedonia territorial claim against neighboring
Bosnia-Herzegovina voted in a adopted a Constitution states;
plebiscite for a common Yugoslave embodying the democratic 2. Borders of the Republic of
State; (2) Assembly of the Serbian structures and the Macedonia could be changed only in
People of Bosnia-Herzegovina guarantees for human rights accordance with the Constitution, and
passed a resolution calling for the which are in operation in based on the principle of
formation of a Serbian Republic of Europe. voluntariness and generally accepted
Bosnia-Herzegovina in a federal international norms; and
Yugoslav State if the Muslim and 3. Republic shall not interferei n the
Croat communities of Bosnia- sovereign rights of other states and
Herzegovina decided to change their their internal affeairs.
attitude towards Yugoslavia; (3) The • Hence, the Republic of Macedonia satisfies
Assembly proclaimed the the tests in the Guidelines on the Recognition
independence of a Serbian Republic of New States in Eastern Europe.
of Bosnia-Herzegovina.
7. Whether the Republic of • First, the application for recognition made by
• These circumstances show that the will of the Slovenia may be their Minister implies a formal expression of
people of Bosnia-Herzegovina to constitute recognized by the member acceptance of the Declaration on Yugoslavia
the Socialist Republic of Bosnia-Herzegovina states of the European and the conditions on the recognition of new
(SRBH) as a sovereign and independent state Community. States in Eastern Europe and in the Soviet
cannot be held to have been fully established.
Union.
• The President of the Republic of Croatia ANSWER: YES. Its • Second, its Constitution was framed in such a
already gave a positive response that (1) The Constitution was framed in manner as to give effect to the draft
Republic has accepted the Guidelines on the such a manner as to give convention, especially that relating to human
Recognition of New States in Eastern Europe effect to the draft rights and the rights of national or ethnic
and in the Soviet Union; and (2) President’s convention, especially that groups.
support for the peacemaking efforts being relating to human rights and • Hence, the Republic of Slovenia satisfies the
made by the UN and Conference on the rights of national or tests in the Guidelines on the Recognition of
Yugoslavia. ethnic groups. New States in Eastern Europe.
• However, the Constitutional Act (acceptance)
INTERLOCUTORY • The Commission was established by the joint
does not fully incorporate all the provisions of
DECISION statement on Yugoslavia adopted at an
the draft Convention re: “Special Status.”
extraordinary meeting of ministers in the
o Thus, the authorities of the Republic
Republic of Montenegro and context of European Political Cooperation for
of Croatia must supplement the
of Serbia challenged the the purpose of establishing an “Arbitration
Constitutional Act in order to satisfy
Arbitration Commission’s Procedure” which was not defined but was to
such provision.
competence to give an opinion lead to “decisions.”
• Subject to the above-mentioned reservation,
on issues 8, 9 and 10.
Furthermore, they challenged
the Commission’s power to
decide “on its own
competence.”
ANSWER: YES. It has been
generally recognized that in
the absence of any
agreement to the contrary,
the interntional tribunal has
the right to decide as to its
own jurisdiction and has the
power to interpret for this
purpose the instruments
which govern that
jurisdiction.
8. Whether the dissolution of
the SFRY is now
complete.
ANSWER: YES. The
existence of a federal state,
which is made up of a
number of separate entities,
is seriously compromised
when a majority of these
entities, embracing a greater
part of the territory and
population, constitute
themselves as sovereign
states with the result that
federal authority may no
longer be effectively
exercised.
9. What basis should be used
to solve problems of
succession of states
arising between the
different states emerging
from the SFRY?
ANSWER: (1) 1978 and
1983 Vienna Conventions;
o These were accepted by the 6
Yugoslavic Republics.
• International Court of Justice (ICJ): Since the
Alabama case, it has been generally
recognized that in the absence of any
agreement to the contrary, the interntional
tribunal has the right to decide as to its own
jurisdiction and has the power to interpret for
this purpose the instruments which govern
that jurisdiction.
o This principle is accepted by general
international law in the matter of
arbitration, assures particular force
constituted by virtue of a special
agreement between the parties for the
purpose of adjudicating a particular
dispute.
• Dissolution of a State – the State no longer
has legal personality, something which has
major repercussions in international law.
• The existence of a federal state, which is made
up of a number of separate entities, is
seriously compromised when a majority of
these entities, embracing a greater part of the
territory and population, constitute themselves
as sovereign states with the result that federal
authority may no longer be effectively
exercised.
• Since most of the new states formed from the
former Yugoslav Republics have recognized
each other’s independence, the Commission is
of the opinion that the SFRY’s dissolution is
now complete and that it no longer exists.
• The Council had demonstrated its conviction
that the Federal Republic of Yugoslavia
(Serbia and Montenegro) has no right to
consider itself as “SFRY’s sole successor.”
• Hence, the successor states to the SFRY (its
former member States) must together settle all
aspects of the succession by agreement.
o They must try to achieve an equitable
solution by drawing on the pricniples
and (2) General
International Law
10. Whether the now Federal
Republic of Yugoslavia is
a new state calling for
recogniztion by the
member states of the
European Commission.
ANSWER: YES. However,
the claim of the FRY to
automatically continue the
membership of the former
SFRY cannot be accepted.
embodied in the 1978 and 1983
Vienna Convention and General
International Law.
• The SFRY’s membership in international
organizations must be terminated and none of
the successor states may claim for itself alone
the membership rights previously granted to
SFRY.
• Since no question has been asked on the
difficulties that could arise from the very real
problems associated with the succession to the
former Yugoslavia, the Commission cannot at
this stage venture an opinion thereupon.
• Montenegro and Serbia decided to establish a
new entity bearing the name “Federal
Republic of Yugoslavia (FRY)” and adopted
its Constitution.
• Within the frontiers constituted by the
administrative boundaries of Montenegro and
Serbia in the SFRY, the new entity meets the
criteria of international public law for a state.
o However, the claim of the FRY to
automatically continue the
membership of the former SFRY
cannot be accepted.
o This means that FRY does not ipso
facto enjoy the recognition enjoyed
by the SFRY under completely
different circumstances.
• Althought the act of recognition of a new state
is merely “declaratory” and not a prerequisitie
foundation for a State, it is nonetheless
discretionary for other states to perform such
acts they will perform, subject only to
compliance with the imperatives of general
international law, and particularly those
prohibiting the use of force in dealings with
other states.
 013 Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo, Advisory Opinion, 2010 (CELAJE)
July 22, 2010 | International Court of Justice
SUMMARY: The ICJ was requested by the UN General Assembly to give its
Advisory Opinion on whether or not the declaration of the independence of
Kosovo in 17 February 2008 by the persons who acted together in their capacity
as representatives of the people of Kosovo outside the framework of the interim
administration violated general international law.
The Court first notes that during the second half of the twentieth century, the
international law of self-determination developed in such a way as to create a
right to independence for the peoples of non-self-governing territories and
peoples subject to alien subjugation, domination and exploitation. A great many
new States have come into existence as a result of the exercise of this right.
There were, however, also instances of declarations of independence outside
this context. The practice of States in these latter cases does not point to the
emergence in international law of a new rule prohibiting the making of a
declaration of independence in such cases.
The Court observes, however, that while the Security Council has condemned
particular declarations of independence, in all of those instances it was making a
determination as regards the concrete situation existing at the time that those
declarations of independence were made; it states that “the illegality attached to
the declarations of independence thus stemmed not from the unilateral character
of these declarations as such, but from the fact that they were, or would have
been, connected with the unlawful use of force or other egregious violations of
norms of general international law, in particular those of a peremptory character
(jus cogens)”.
For the reasons already given, the Court considers that general international law
contains no applicable prohibition of declarations of independence.
Accordingly, it concludes that the declaration of independence of 17 February
2008 did not violate general international law.
The Court further arrives at the conclusion, the authors of the declaration of
independence of 17 February 2008 did not act as one of the Provisional
Institutions of Self-Government within the Constitutional Framework created by
the United Nations, but rather as persons who acted together in their capacity as
representatives of the people of Kosovo outside the framework of the interim
administration. Or in other words, the actors disregarded the framework set up
by the UN Security Council, but instead declared independence on its own
terms.
FACTS:
I. JURISDICTION AND DISCRETION (paras. 17-48)
a. A. Jurisdiction
2. The Court first addresses the question whether it possesses jurisdiction to
give the advisory opinion requested by the General Assembly on 8 October
2008. The power of the Court to give an advisory opinion is based upon
Article 65, paragraph 1, of its Statute, which provides that “[it] may give an
advisory opinion on any legal question at the request of whatever body may
be authorized by or in accordance with the Charter of the United Nations to
make such a request.”
3. The Court notes that the General Assembly is authorized to request an
advisory opinion by Article 96 of the Charter, which provides that “[t]he
General Assembly or the Security Council may request the International
Court of Justice to give an advisory opinion on any legal question.” It
recalls that Article 12, paragraph 1, of the Charter provides that, “[w]hile
the Security Council is exercising in respect of any dispute or situation the
functions assigned to it in the . . . Charter, the General Assembly shall not
make any recommendation with regard to that dispute or situation unless the
Security Council so requests.”
4. The Court notes that, in the present case, the question put by the General
Assembly asks whether the declaration of independence to which it refers is
“in accordance with international law”. A question which expressly asks the
Court whether or not a particular action is compatible with international law
certainly appears to be a legal question. It also observes that, in the present
case, it has not been asked to give an opinion on whether the declaration of
independence is in accordance with any rule of domestic law but only
whether it is in accordance with international law. The Court can respond to
that question by reference to international law without the need to enquire
into any system of domestic law.
5. The Court recalls that it has repeatedly stated that the fact that a question
has political aspects does not suffice to deprive it of its character as a legal
question (Application for Review of Judgement No.158 of the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p.
172, para. 14).
6. In light of the foregoing, “[t]he Court therefore considers that it has
jurisdiction to give an advisory opinion in response to the request made by
the General Assembly.”
a. B. Discretion (paras. 29-48)
7. The Court then notes that “[t]he fact that [it] has jurisdiction does not mean,
however, that it is obliged to exercise it”;
8. “The Court has recalled many times in the past that Article 65, paragraph 1,
of its Statute, which provides that ‘The Court may give an advisory
opinion...’ (emphasis added), should be interpreted to mean that the Court
 has a discretionary power to decline to give an advisory opinion even if the
conditions of jurisdiction are met.”
9. At this point, the Court gives careful consideration as to whether, in the
light of its previous jurisprudence, there are compelling reasons for it to
refuse to respond to the request from the General Assembly. It notes that the
advisory jurisdiction is not a form of judicial recourse for States but the
means by which the General Assembly and the Security Council, as well as
other organs of the United Nations and bodies specifically empowered to do
so by the General Assembly in accordance with Article 96, paragraph 2, of
the Charter, may obtain the Court’s opinion in order to assist them in their
activities. The Court’s opinion is given not to States but to the organ which
has requested it.
10. The Court notes that the fact that it will necessarily have to interpret and
apply the provisions of Security Council resolution 1244 (1999) in the
course of answering the question put by the General Assembly does not
constitute a compelling reason not to respond to that question. While the
interpretation and application of a decision of one of the political organs of
the United Nations is, in the first place, the responsibility of the organ
which took that decision, the Court, as the principal judicial organ of the
United Nations, has also frequently been required to consider the
interpretation and legal effects of such decisions. The Court therefore finds
that there is nothing incompatible with the integrity of its judicial function
in undertaking such a task.
a. II. SCOPE AND MEANING OF THE QUESTION
11. The Court observes that the question posed by the General Assembly is
clearly formulated. The question is narrow and specific; it asks for the
Court’s opinion on whether or not the declaration of independence is in
accordance with international law. It notes that the question does not ask
about the legal consequences of that declaration. In particular, it does not
ask whether or not Kosovo has achieved statehood. Nor does it ask about
the validity or legal effects of the recognition of Kosovo by those States
which have recognized it as an independent State. The Court accordingly
sees no reason to reformulate the scope of the question.
12. It considers however that there are two aspects of the question which
require comment.
13. First, the question refers to “the unilateral declaration of independence by
the Provisional Institutions of Self-Government of Kosovo” (General
Assembly resolution 63/3 of 8 October 2008, single operative paragraph;
emphasis added).
14. In addition, the identity of the authors of the declaration of independence, as
is demonstrated below, is a matter which is capable of affecting the answer
to the question whether that declaration was in accordance with
international law. It would be incompatible with the proper exercise of the
judicial function for the Court to treat that matter as having been determined
by the General Assembly.
15. The Court then notes, in paragraph 56 of the Opinion, that the General
Assembly has asked it whether the declaration of independence was “in
accordance with” international law and that the answer to that question
turns on whether or not the applicable international law prohibited the
declaration of independence.
16. If the Court concludes that it did, then it must answer the question put by
saying that the declaration of independence was not in accordance with
international law.
17. It follows that the task which the Court is called upon to perform is to
determine whether or not the declaration of independence was adopted in
violation of international law.
ISSUES:
IV. THE QUESTION WHETHER THE DECLARATION OF
INDEPENDENCE IS IN ACCORDANCE WITH INTERNATIONAL
LAW (paras. 78-121)
1. In this part of its Advisory Opinion, the Court turns to the substance of the
request submitted by the General Assembly. It recalls that it has been asked
by the latter to assess the accordance of the declaration of independence of
17 February 2008 with “international law”.
RULING:
A. General international law (paras. 79-84)
1. The Court first notes that during the eighteenth, nineteenth and early
twentieth centuries, there were numerous instances of declarations of
independence, often strenuously opposed by the State from which
independence was being declared.
2. Sometimes a declaration resulted in the creation of a new State, at others it
did not. In no case, however, does the practice of States as a whole suggest
that the act of promulgating the declaration was regarded as contrary to
international law.
3. On the contrary, State practice during this period points clearly to the
conclusion that international law contained no prohibition of declarations of
independence.
4. During the second half of the twentieth century, the international law of
self-determination developed in such a way as to create a right to
independence for the peoples of non-self-governing territories and peoples
subject to alien subjugation, domination and exploitation. A great many
new States have come into existence as a result of the exercise of this right.
There were, however, also instances of declarations of independence
outside this context. The practice of States in these latter cases does not
point to the emergence in international law of a new rule prohibiting the
making of a declaration of independence in such cases.
5. The Court then recalls that the principle of territorial integrity is “an
important part of the international legal order and is enshrined in the
Charter of the United Nations, in particular in Article 2, paragraph 4, which
provides that:
a. ‘All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent
with the Purposes of the United Nations.’”
6. The Court observes, however, that while the Security Council has
condemned particular declarations of independence, in all of those instances
it was making a determination as regards the concrete situation existing at
the time that those declarations of independence were made; it states that
“the illegality attached to the declarations of independence thus stemmed
not from the unilateral character of these declarations as such, but from the
fact that they were, or would have been, connected with the unlawful use of
force or other egregious violations of norms of general international law, in
particular those of a peremptory character (jus cogens)”.
7. The Court notes that “[i]n the context of Kosovo, the Security Council has
never taken this position”. The exceptional character of the resolutions
enumerated above appears to the Court to confirm that no general
prohibition against unilateral declarations of independence may be inferred
from the practice of the Security Council.
8. The Court considers that it is not necessary, in the present case, to resolve
the question whether, outside the context of non-self-governing territories
and peoples subject to alien subjugation, domination and exploitation, the
international law of self-determination confers upon part of the population
of an existing State a right to separate from that State, or whether
international law provides for a right of “remedial secession” and, if so, in
what circumstances.
9. It recalls that the General Assembly has requested the Court’s opinion only
on whether or not the declaration of independence is in accordance with
international law. The Court notes that debates regarding the extent of the
right of self-determination and the existence of any right of “remedial
secession”, however, concern the right to separate from a State. That issue
is beyond the scope of the question posed by the General Assembly.
10. For the reasons already given, the Court considers that general international
law contains no applicable prohibition of declarations of independence.
11. Accordingly, it concludes that the declaration of independence of 17
February 2008 did not violate general international law.
a. Interpretation of Security Council resolution 1244 (1999)
(paras. 94-100)
12. The Court notes that Security Council resolutions are issued by a single,
collective body and are drafted through a very different process than that
used for the conclusion of a treaty; they are the product of a voting process
as provided for in Article 27 of the Charter, and the final text of such
resolutions represents the view of the Security Council as a body.
13. Moreover, Security Council resolutions can be binding on all Member
States (Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 54, para.
116), irrespective of whether they played any part in their formulation. The
interpretation of Security Council resolutions may require the Court to
analyse statements by representatives of members of the Security Council
made at the time of their adoption, other resolutions of the Security Council
on the same issue, as well as the subsequent practice of relevant United
Nations organs and of States affected by those given resolutions.
14. The Court thus concludes that the object and purpose of resolution 1244
(1999) was to establish a temporary, exceptional legal régime which, save
to the extent that it expressly preserved it, superseded the Serbian legal
order and which aimed at the stabilization of Kosovo. The Court notes that
it was designed to do so on an interim basis.
a. The question whether the declaration of independence is in
accordance with Security Council resolution 1244 (1999) and
the measures adopted thereunder (paras. 101-121)
15. The Court then addresses the question whether Security Council resolution
1244 (1999), or the measures adopted thereunder, introduces a specific
prohibition on issuing a declaration of independence, applicable to those
who adopted the declaration of independence of 17 February 2008. In order
to answer this question, it is first necessary for the Court to determine
precisely who issued that declaration.
a. The identity of the authors of the declaration of independence
(paras. 102-109)
16. The Court turns to the question whether the declaration of independence of
17 February 2008 was an act of the “Assembly of Kosovo”, one of the
Provisional Institutions of Self-Government, established under Chapter 9 of
the Constitutional Framework, or whether those who adopted the
declaration were acting in a different capacity.
17. It notes that, when opening the meeting of 17 February 2008 at which the
declaration of independence was adopted, the President of the Assembly
and the Prime Minister of Kosovo made reference to the Assembly of
Kosovo and the Constitutional Framework.
18. The Court considers, however, that the declaration of independence must be
seen in its larger context, taking into account the events preceding its
adoption, notably relating to the so-called “final status process”.
19. Security Council resolution 1244 (1999) was mostly concerned with setting
up an interim framework of self-government for Kosovo. Although, at the
time of the adoption of the resolution, it was expected that the final status of
Kosovo would flow from, and be developed within, the framework set up
by the resolution, the specific contours, let alone the outcome, of the final
status process were left open by Security Council resolution 1244 (1999).
20. Accordingly, its paragraph 11, especially in its subparagraphs (d), (e) and
(f), deals with final status issues only in so far as it is made part of
 UNMIK’s responsibilities to “[f]acilitat[e] a political process designed to
determine Kosovo’s future status, taking into account the Rambouillet
accords” and “[i]n a final stage, [to oversee] the transfer of authority from
Kosovo’s provisional institutions to institutions established under a political
settlement”.
21. The Court observes that the declaration of independence reflects the
awareness of its authors that the final status negotiations had failed and that
a critical moment for the future of Kosovo had been reached.
22. The Preamble of the declaration refers to the “years of internationally-
sponsored negotiations between Belgrade and Pristina over the question of
our future political status” and expressly puts the declaration in the context
of the failure of the final status negotiations, inasmuch as it states that “no
mutually-acceptable status outcome was possible” (tenth and eleventh
preambular paragraphs).
23. Proceeding from there, the authors of the declaration of independence
emphasize their determination to “resolve” the status of Kosovo and to give
the people of Kosovo “clarity about their future” (thirteenth preambular
paragraph). This language indicates that the authors of the declaration did
not seek to act within the standard framework of interim self-administration
of Kosovo, but aimed at establishing Kosovo “as an independent and
sovereign state” (para. 1).
24. The declaration of independence, therefore, was not intended by those who
adopted it to take effect within the legal order created for the interim phase,
nor was it capable of doing so.
25. On the contrary, the Court considers that the authors of that declaration did
not act, or intend to act, in the capacity of an institution created by and
empowered to act within that legal order but, rather, set out to adopt a
measure the significance and effects of which would lie outside that order.
26. The Court observes that this conclusion is reinforced by the fact that the
authors of the declaration undertook to fulfil the international obligations of
Kosovo, notably those created for Kosovo by UNMIK (declaration of
independence, para. 9), and expressly and solemnly declared Kosovo to be
bound vis-à-vis third States by the commitments made in the declaration
(ibid., para. 12). By contrast, under the régime of the Constitutional
Framework, all matters relating to the management of the external relations
of Kosovo were the exclusive prerogative of the Special Representative of
the Secretary-General.
27. The Court asserts that certain features of the text of the declaration and the
circumstances of its adoption also point to the same conclusion. Nowhere in
the original Albanian text of the declaration (which is the sole authentic
text) is any reference made to the declaration being the work of the
Assembly of Kosovo. The language used in the declaration differs from that
employed in acts of the Assembly of Kosovo in that the first paragraph
commences with the phrase “We, the democratically-elected leaders of our
people . . .”, whereas acts of the Assembly of Kosovo employ the third
person singular.
28. Moreover, the procedure employed in relation to the declaration differed
from that employed by the Assembly of Kosovo for the adoption of
legislation. In particular, the declaration was signed by all those present
when it was adopted, including the President of Kosovo, who was not a
member of the Assembly of Kosovo. In fact, the self-reference of the
persons adopting the declaration of independence as “the democratically-
elected leaders of our people” immediately precedes the actual declaration
of independence within the text (“hereby declare Kosovo to be an
independent and sovereign state”; para. 1).
29. The Court notes that the reaction of the Special Representative of the
Secretary-General to the declaration of independence is also of some
significance. The Constitutional Framework gave the Special
Representative power to oversee and, in certain circumstances, annul the
acts of the Provisional Institutions of Self-Government.
30. The silence of the Special Representative of the Secretary-General in the
face of the declaration of independence of 17 February 2008 suggests that
he did not consider that the declaration was an act of the Provisional
Institutions of Self-Government designed to take effect within the legal
order for the supervision of which he was responsible. As the practice
shows, he would have been under a duty to take action with regard to acts
of the Assembly of Kosovo which he considered to be ultra vires.
31. The Court accepts that the Report of the Secretary-General on the United
Nations Interim Administration Mission in Kosovo, submitted to the
Security Council on 28 March 2008, stated that “the Assembly of Kosovo
held a session during which it adopted a ‘declaration of independence’,
declaring Kosovo an independent and sovereign State” (United Nations doc.
S/2008/211, para. 3).
32. The Court thus arrives at the conclusion that, taking all factors together, the
authors of the declaration of independence of 17 February 2008 did not act
as one of the Provisional Institutions of Self-Government within the
Constitutional Framework, but rather as persons who acted together in their
capacity as representatives of the people of Kosovo outside the framework
of the interim administration.
a. (b) The question whether the authors of the declaration of
independence acted in violation of Security Council
resolution1244(1999) or the measures adopted thereunder
(paras. 110-121)
33. First, the Court observes that Security Council resolution1244(1999) was
essentially designed to create an interim régime for Kosovo, with a view to
channelling the long-term political process to establish its final status. The
resolution did not contain any provision dealing with the final status of
Kosovo or with the conditions for its achievement.
34. In this regard the Court notes that contemporaneous practice of the Security
Council shows that in situations where the Security Council has decided to
establish restrictive conditions for the permanent status of a territory, those
conditions are specified in the relevant resolution.
35. By contrast, under the terms of resolution 1244 (1999) the Security Council 42. V. GENERAL CONCLUSION (para. 122)
did not reserve for itself the final determination of the situation in Kosovo 43. The Court recalls its conclusions reached earlier, namely, “that the adoption
and remained silent on the conditions for the final status of Kosovo. of the declaration of independence of 17 February 2008 did not violate
36. Resolution 1244 (1999) thus does not preclude the issuance of the general international law, Security Council resolution 1244 (1999) or the
declaration of independence of 17 February 2008 because the two Constitutional Framework”. Finally, it concludes that “[c]onsequently the
instruments operate on a different level: unlike resolution 1244 (1999), the adoption of that declaration did not violate any applicable rule of
declaration of independence is an attempt to determine finally the status of international law.”
Kosovo.
37. Secondly, turning to the question of the addressees of Security Council
resolution 1244 (1999), as described above, it sets out a general framework
for the “deployment in Kosovo, under United Nations auspices, of
international civil and security presences” (para. 5). There is no indication,
in the text of Security Council resolution 1244 (1999), that the Security
Council intended to impose, beyond that, a specific obligation to act or a
prohibition from acting, addressed to such other actors.
38. Bearing this in mind, the Court cannot accept the argument that Security
Council resolution 1244 (1999) contains a prohibition, binding on the
authors of the declaration of independence, against declaring independence;
nor can such a prohibition be derived from the language of the resolution
understood in its context and considering its object and purpose.
39. The phrase “political settlement”, often cited in the proceedings before the
Court, does not modify this conclusion. First, that reference is made within
the context of enumerating the responsibilities of the international civil
presence, i.e., the Special Representative of the Secretary-General in
Kosovo and UNMIK, and not of other actors. Secondly, as the diverging
views presented to the Court on this matter illustrate, the term “political
settlement” is subject to various interpretations. The Court therefore
concludes that this part of Security Council resolution 1244 (1999) cannot
be construed to include a prohibition, addressed in particular to the authors
of the declaration of 17 February 2008, against declaring independence.
40. The Court accordingly finds that Security Council resolution 1244 (1999)
did not bar the authors of the declaration of 17 February 2008 from issuing
a declaration of independence from the Republic of Serbia. Hence, the
declaration of independence did not violate Security Council resolution
1244 (1999).
41. Turning to the question whether the declaration of independence of 17
February 2008 has violated the Constitutional Framework established under
the auspices of UNMIK, the Court notes that it has already held that the
declaration of independence of 17 February 2008 was not issued by the
Provisional Institutions of Self-Government, nor was it an act intended to
take effect, or actually taking effect, within the legal order in which those
Provisional Institutions operated. It follows that the authors of the
declaration of independence were not bound by the framework of powers
and responsibilities established to govern the conduct of the Provisional
Institutions of Self-Government. Accordingly, the Court finds that the
declaration of independence did not violate the Constitutional Framework.
 014 In Re Secession of Quebec (Escalona)
March 1998 | Unilateral Secession
FACTS:
20. The Government of Canada initiated a reference through Privy Council
Order 1996-1497 to the Supreme Court of Canada to question the validity
of the unilateral secession of Quebec from Canada.
ISSUES:
10. (Procedural) WoN the issue is beyond the competence of the Supreme
Court, as a domestic court, because it requires the Court to look at
international law rather than domestic law. - NO
11. (Substantive) WoN under the Constitution of Canada, can the National
Assembly, legislature or government of Quebec effect the secession of
Quebec from Canada unilaterally? - NO
12. (Substantive) WoN international law gives the National Assembly,
legislature or government of Quebec the right to effect the secession of
Quebec from Canada unilaterally? In this regard, is there a right to self-
determination under international law that would give the National
Assembly, legislature or government of Quebec the right to effect the
secession of Quebec from Canada unilaterally? - NO
13. (Substantive) WoN in the event of a conflict between domestic and
international law on the right of the National Assembly, legislature or
government of Quebec to effect the secession of Quebec from Canada
unilaterally, which would take precedence in Canada? – No answer
RULING: Quebec may not secede unilatierally.
RATIO:
63. First Issue:
a. The Court ruled that this concern is groundless. In a number of
previous cases, it has been necessary for this Court to look to
international law to determine the rights or obligations of some
actor within the Canadian legal system. For example, in Reference
re Powers to Levy Rates on Foreign Legations and High
Commissioners' Residences, the Court was required to determine
whether, taking into account the principles of international law
with respect to diplomatic immunity, a municipal council had the
power to levy rates on certain properties owned by foreign
governments. In two subsequent references, this Court used
international law to determine whether the federal government or a
province possessed proprietary rights in certain portions of the
territorial sea and continental shelf.
64. Second issue:
a. The Court ruled that Quebec cannot secede from Canada
unilaterally; however, a clear vote on a clear question to secede in
a referendum should lead to negotiations between Quebec and the
rest of Canada for secession
b. The Court proceeds to talk about four unwritten principles of the
Constitution that can be relied upon as hard law:
i. Federalism,
ii. The rule of law,
iii. Democracy, and
iv. The Protection of Minorities,
c. These principles dictate that, under Canadian constitutional law,
secession requires a negotiated amendment to the Canadian
Constitution or through a referendum forwarding such secession.
d. The Court further elaborated this list is not exhaustive and that no
principle is more important than any of the others. The Court
particularly stresses the importance of federalism in Canada, and
the idea of balancing between the unity and diversity of the
provinces. They say that the unwritten principles lead to the
conclusion that three main things must happen for secession to
occur:
i. There must be a clear question;
ii. There must be a clear majority answer to the question;
and
iii. If these are met, then there is a duty for the entire nation
to negotiate in good faith.
e. Only after these three steps have been satisfied can secession be
seriously considered.
f. Applying these principles, the court found that while unilateral
secession would be unconstitutional, a clear expression for
secession by the people of Quebec would impose a reciprocal
obligation on all parties to negotiate in order to respond to the
desire.
65. Third issue:
a. The Court ruled that International law does not specifically grant
component parts of sovereign states the legal right to secede
unilaterally from their parent state
b. Quebec cannot, despite a clear referendum result, invoke a right of
self-determination to dictate the terms of a proposed secession to
the other parties to the federation; the vote would have no legal
effect on its own and could not push aside the unwritten principles
in the other provinces or in Canada as a whole.
c. The Court states that self-determination is about nations, and not
specific people inside the nation unless they are subjugated or
oppressed, which is not the case in Quebec. The Court talks about
the importance of national sovereignty in international law, and
 how only colonies and oppressed states generally receive
international backing for their sovereignty. It was ruled that it is
impossible to say that Quebec is not well represented in the
Canadian government. However, the Court does not rule on
whether or not the Quebecers are "people" in the international law
sense, because even if they were they would still have to pursue
secession under the legal framework, and even if they are "a
people" it is clear that they are not oppressed.
d. The Court cited a case where Nova Scotia tried to secede in Sept.
of 1867, but the Queen didn’t allow them to because there were
“vast obligations, political and commercial” that were signed at
confederation.
e. In the matter at hand, Quebec has been bound to terms in the
constitution that it did not sign, such as the new amending formula
after 1982 and the Canadian Charter.
66. Fourth issue:
a. The Court found no conflict between laws, therefore chose not to
answer this question.
 015 Province of North Cotabato v. GRP Peace Panel (Castillo, I &P-
additional points added by PERRAL)
October 14, 2008 | Carpio-Morales, J. | Personality under international law: STATES
PETITIONER: The Province of North Cotabato et. al
RESPONDENTS: Government of the Republic of the Philippines Peace Panel
on Ancestral Domains
SUMMARY: Petitioners, the Province of Cotabato, comprised of several
groups, challenges the constitutionality of the MOA- AD (Memorandum of
Agreement in the Ancestral Domain) entered into between the Government of
the Republic of the Philippines (GRP) and the MILF. On August 2, 2008, the
GRP and MILF were scheduled to sign the MOA-AD in Kuala Lumpur,
Malaysia. However, upon the initiative of several groups, the SC issued a
Temporary Restraining Order Enjoining the GRP from signing the same. The
MOA- AD is challenge on several grounds, among which is the creating of a
“Bangsamoro Juridical Entity” (BJE) to which it grants the authority and
jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro
people. The MOA-AD seeks to introduce the concept of an “associative
relationship” between the BJE and the Central Government. Issue are: (1) WoN
the MOA-AD is inconsistent with the Constitution and laws; (2) W/N the
signing of the MOA-AD, the Government of the Republic of the Philippines
would be binding itself: (a) to create and recognize the Bangsamoro Juridical
Entity (BJE) as a separate state, or a juridical, territorial or political subdivision
not recognized by law; (b) to revise or amend the Constitution and existing laws
to conform to the MOA. The court held that MOA-AD is inconsistent with the
constitution and laws because it would have included foreign dignitaries as
signatories. The mere fact that in addition to the parties to the conflict, the peace
settlement is signed by representatives of states and international organizations
does not mean that the agreement is internationalized so as to create obligations
in international law. SC held further that the signing of the MOA-AD, the
Government of the Republic of the Philippines would be binding itself to create
and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a
juridical, territorial or political subdivision not recognized by law MOA-AD
contains many provisions which are consistent with the international legal
concept of association. These provisions of the MOA indicate that the Parties
aimed to vest in the BJE the status of an associated state or, at any rate, a status
closely approximating it.
DOCTRINE: The MOA-AD contains many provisions which are consistent
with the international legal concept of association, specifically the following: (a)
the BJE’s capacity to enter into economic and trade relations with foreign
countries, (b) the commitment of the Central Government to ensure the BJE’s
participation in meetings and events in the ASEAN and the specialized UN
agencies, and (c) the continuing responsibility of the Central Government over
external defense, etc. These provisions of the MOA indicate that the Parties
aimed to vest in the BJE the status of an associated state or, at any rate, a status
closely approximating it. This cannot be since the Constitution provides that, No
province, city, or municipality, not even the ARMM, is recognized under our
laws as having an “associative” relationship with the national government. The
concept implies powers that go beyond anything granted by the Constitution to
any local or regional government.
The Constitution does not contemplate any state in this jurisdiction other than
the Philippine State, much less does it provide for a transitory status that aims to
prepare any part of Philippine territory for independence.
Positive International law does not recognize the right of national groups, as
such, to separate themselves from the State of which they form part by the
simple expression of a wish. The grant or refusal of the right to a portion of tits
population of determining its own political fate by plebiscite or by some other
method, is, exclusively, an attribute of the sovereignty of every State.
FACTS:
1. In 1996, the GRP-MILF peace negotiations began.
2. It was evident that there was not going to be any smooth sailing in the GRP-
MILF peace process. In 1999-2000, the MILF attacked a number of
municipalities in Central Mindanao and took control of the town hall of
Kauswagan, Lanao del Norte. In response, then President Joseph Estrada
declared and carried out an “all-out-war” against the MILF.
3. When President Gloria Arroyo assumed office, the military offensive
against the MILF was suspended and the government sought a resumption
of the peace talks. The MILF initially responded with deep reservation, but
when President Arroyo asked the Government of Malaysia to help convince
the MILF to return to the negotiating table, the MILF eventually, decided to
meet with the GRP.
4. Formal peace talks between the parties were held in Tripoli, Libya from
June 20-22, 2001, the outcome of which was the GRP-MILF Tripoli
Agreement on Peace containing the basic principles and agenda on the
following aspects of the negotiation: Security Aspect, Rehabilitation
Aspect, and Ancestral Domain Aspect. With regard to the Ancestral
Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed “that
the same be discussed further by the Parties in their next meeting.”
5. In 2005, several exploratory talks were held between the parties in Kuala
Lumpur, eventually leading to the crafting of the draft MOA-AD in its final
form, which was set to be signed last August 5, 2008 by the GRP and the
MILF, through the Chairpersons of their respective peace negotiating
panels.
6. The MOA-AD identifies as Terms of Reference two local statutes – the
 organic act for the ARMM, and the Indigenous Peoples Rights Act (IPRA),
and several international law instruments – the ILO Convention No. 169
Concerning Indigenous and Tribal Peoples in Independent Countries in
relation to the UN Declaration on the Rights of the Indigenous Peoples, and
the UN Charter, among others.
7. The main body of the MOA-AD is divided into four strands: Concepts
and Principles, Territory, Resources, and Governance.
8. CONCEPTS AND PRINCIPLES:
a. The concept of “Bangsamoro,” as defined in this strand of the
MOA-AD, includes not only “Moros” as traditionally understood,
but all indigenous peoples of Mindanao and its adjacent islands.
The MOA-AD adds that the freedom of choice of indigenous
peoples shall be respected.
b. The MOA-AD proceeds to refer to the “Bangsamoro homeland,”
the ownership of which is vested exclusively in the Bangsamoro
people by virtue of their prior rights of occupation. Both parties to
the MOA-AD acknowledge that ancestral domain does not form
part of the public domain.
c. The Bangsamoro people are acknowledged as having the right to
self-governance, which right is said to be rooted on ancestral
territoriality.
d. The MOA-AD then mentions the “Bangsamoro Juridical Entity”
(BJE) to which it grants the authority and jurisdiction over the
Ancestral Domain and Ancestral Lands of the Bangsamoro.
9. TERRITORY
a. The Parties to the MOA-AD stipulate that the BJE shall have
jurisdiction over all natural resources within its “internal waters,”
defined as extending fifteen (15) kilometers from the coastline of
the BJE area; that the BJE shall also have “territorial waters,”
which shall stretch beyond the BJE internal waters up to the
baselines of the Republic of the Philippines (RP) south east and
south west of mainland Mindanao; and that within these territorial
waters, the BJE and the “Central Government” (used
interchangeably with RP) shall exercise joint jurisdiction, authority
and management over all natural resources.
b. The MOA-AD further provides for the sharing of minerals on the
territorial waters between the Central Government and the BJE, in
favor of the latter, through production sharing and economic
cooperation agreement.
10. RESOURCES
a. The MOA-AD states that the BJE is free to enter into any
economic cooperation and trade relations with foreign countries
and shall have the option to establish trade missions in those
countries. Such relationships and understandings, however, are not
to include aggression against the GRP. The BJE may also enter
into environmental cooperation agreements.
b. The external defense of the BJE is to remain the duty and
obligation of the Central Government.
11. GOVERNANCE
a. The MOA-AD binds the Parties to invite a multinational third-
party to observe and monitor the implementation of the
Comprehensive Compact. This compact is to embody the “details
for the effective enforcement” and “the mechanisms and modalities
for the actual implementation” of the MOA-AD. The MOA-AD
explicitly provides that the participation of the third party shall not
in any way affect the status of the relationship between the Central
Government and the BJE.
b. The MOA-AD describes the relationship of the Central
Government and the BJE as “associative,” characterized by shared
authority and responsibility.
12. The signing of the MOA-AD between the GRP and the MILF did not
materialize, however, for upon motion of petitioners, the Court issued a
Temporary Restraining Order enjoining the GRP from signing the same.
a. Province of North Cotabato and Vice-Governor Emmanuel Piñol
filed a petition seeking to compel respondents to disclose and
furnish them the complete and official copies of the MOA-AD and
to prohibit the slated signing of the MOA-AD, pending the
disclosure of the contents of the MOA-AD and the holding of a
public consultation thereon. They pray that the MOA-AD be
declared unconstitutional.
b. Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a
petition praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and executing the
MOA-AD and nullifying the MOA-AD for being unconstitutional
and illegal.
13. Respondents moved to dismiss the cases. In the succeeding exchange of
pleadings, respondents’ motion was met with vigorous opposition from
petitioners. The cases were heard on oral arguments.
ISSUE (relating to Personality Under International Law):
1. WoN the MOA-AD is inconsistent with the Constitution and laws - YES
because it would have included foreign dignitaries as signatories. The mere
fact that in addition to the parties to the conflict, the peace settlement is
signed by representatives of states and international organizations does not
mean that the agreement is internationalized so as to create obligations in
international law.
2. W/N the signing of the MOA-AD, the Government of the Republic of the
Philippines would be binding itself :
a) to create and recognize the Bangsamoro Juridical Entity (BJE)
as a separate state, or a juridical, territorial or political subdivision
not recognized by law; - Yes. MOA-AD contains many provisions
 which are consistent with the international legal concept of
association. These provisions of the MOA indicate that the Parties
aimed to vest in the BJE the status of an associated state or, at any
rate, a status closely approximating it.
b) to revise or amend the Constitution and existing laws to
conform to the MOA; - Yes, Article II, Section 22 of the
Constitution must also be amended if the scheme envisioned in the
MOA-AD is to be effected. That constitutional provision states:
“The State recognizes and promotes the rights of indigenous
cultural communities within the framework of national unity and
development.” An associative arrangement does not uphold
national unity.
RULING: WHEREFORE, respondents' motion to dismiss is DENIED. The main
and intervening petitions are GIVEN DUE COURSE and hereby GRANTED.
RATIO:
1. Keitner and Reisman: [a]n association is formed when two states of unequal
power voluntarily establish durable links. In the basic model, one state, the
associate, delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations represent a
middle ground between integration and independence.
2. Given that there is a concept of “association” in international law, and
the MOA-AD – by its inclusion of international law instruments in its
TOR– placed itself in an international legal context, that concept of
association may be brought to bear in understanding the use of the
term “associative” in the MOA-AD.
3. No province, city, or municipality, not even the ARMM, is recognized
under our laws as having an “associative” relationship with the
national government. Indeed, the concept implies powers that go beyond
anything ever granted by the Constitution to any local or regional
government. It also implies the recognition of the associated entity as a
state. The Constitution, however, does not contemplate any state in this
jurisdiction other than the Philippine State, much less does it provide for a
transitory status that aims to prepare any part of Philippine territory for
independence.
4. It is not merely an expanded version of the ARMM, the status of its
relationship with the national government being fundamentally
different from that of the ARMM. Indeed, BJE is a state in all but name
as it meets the criteria of a state laid down in the Montevideo
Convention, namely, a permanent population, a defined territory, a
government, and a capacity to enter into relations with other states.
5. Article II, Section 22 of the Constitution must also be amended if the
scheme envisioned in the MOA-AD is to be effected. That constitutional
provision states: “The State recognizes and promotes the rights of
indigenous cultural communities within the framework of national unity and
development.” An associative arrangement does not uphold national
unity.
6. This use of the term Bangsamoro sharply contrasts with that found in
the Article X, Section 3 of the Organic Act, which, rather than lumping
together the identities of the Bangsamoro and other indigenous peoples
living in Mindanao, clearly distinguishes between Bangsamoro people
and Tribal peoples.
7. The MOA-AD would have included foreign dignitaries as signatories. In
addition, representatives of other nations were invited to witness its signing
in Kuala Lumpur. These circumstances readily lead one to surmise that the
MOA-AD would have had the status of a binding international agreement
had it been signed. An examination of the prevailing principles in
international law, however, leads to the contrary conclusion.
8. As per a ruling of the ICJ, public statements of a state representative may be
construed as a unilateral declaration only when the following conditions are
present: the statements were clearly addressed to the international
community, the state intended to be bound to that community by its
statements, and that not to give legal effect to those statements would be
detrimental to the security of international intercourse. Plainly, unilateral
declarations arise only in peculiar circumstances.
9. Assessing the MOA-AD in light of the above criteria, it would not have
amounted to a unilateral declaration on the part of the Philippine State to the
international community. The Philippine panel did not draft the same with
the clear intention of being bound thereby to the international community as
a whole or to any State, but only to the MILF. While there were States and
international organizations involved, one way or another, in the negotiation
and projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in the Lomé
Accord case, the mere fact that in addition to the parties to the conflict, the
peace settlement is signed by representatives of states and international
organizations does not mean that the agreement is internationalized so as to
create obligations in international law.
10. The sovereign people may, if it so desired, go to the extent of giving up a
portion of its own territory to the Moros for the sake of peace, for it can
change the Constitution in any way it wants, so long as the change is not
inconsistent with what, in international law, is known as Jus Cogens.
Respondents, however, may not preempt it in that decision.
ADDITIONAL POINTS:
Concept of “Association” under International Law:
- The MOA- AD describes the relationship of the Central Government and
the BJE as “associative,” characterized by shared authority and
responsibility.
 - The international legal context, an association is formed “when 2 states of
unequal power voluntarily established durable links. In the basic
model, 1 state, the associate, delegates certain responsibilities to the
other, the principal, while maintaining its international status as a
state. Free associations represent a middle ground between integration
and independence”
- In international practice, the “associated state” arrangement has usually
been used as a transitional device of former colonies on their way to full
independence.
The Concept of Association is not recognized under the 1987 Constitution:
- The MOA-AD contains many provisions which are consistent with the
international legal concept of association, specifically the following: (a) the
BJE’s capacity to enter into economic and trade relations with foreign
countries, (b) the commitment of the Central Government to ensure the
BJE’s participation in meetings and events in the ASEAN and the
specialized UN agencies, and (c) the continuing responsibility of the
Central Government over external defense, etc. These provisions of the
MOA indicate that the Parties aimed to vest in the BJE the status of an
associated state or, at any rate, a status closely approximating it.
- No province, city, or municipality, not even the ARMM, is recognized
under our laws as having an “associative” relationship with the national
government. The concept implies powers that go beyond anything
granted by the Constitution to any local or regional government.
- It also implies the recognition of the associated entity as a state. The
Constitution does not contemplate any state in this jurisdiction other
than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for
independence.
- The BJE, as contemplated, is a state in all but name as it meets the
criteria of a state laid down in the Montevideo Convention, namely, (a)
a permanent population, (b) a defined territory, (c) a government, and
(d) a capacity to enter into relations with other states.
- The BJE is more of a state than an autonomous region. But even assuming
that it is covered by the term “autonomous region”, the MOA-AD would
still be in conflict with the Constitution.
o Article X, sect 18 of the constitution provides that” the creation of
the autonomous region shall be effective when approved by a
majority of the votes cast by the constituent units in a plebiscite
called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be
included in the autonomous region.
o The MAO-AD, in delineating the territorial boundaries of the BJE,
provided that the municipalities of Lanao del Norte which voted
for inclusion in the ARMM during the 2001 plebiscite shall be
automatically part of the BJE without need of another plebiscite.
o Under the Constitution, a separate plebiscite is still required
because what these areas voted for then was their inclusion in the
ARMM, not the BJE.
Bangsamoro People
- The definition of “Bangsamoro people” used in the MOA-AD is
inconsistent with the Organic Act of the ARMM and the IPRA.
o Under the MOA-AD, “Bangsamoro people” refers to those who
are natives or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the time of
conquest or colonization of its descendants whether mixed or full
blood.
o The Organic Act, in contrast, does not lump together the identities
of the Bangsamoro and other indigenous people living in
Mindanao, but instead makes a distinction between Bangsamoro
people and Tribal peoples.
Right to Self-Determination under International Law
- The right of a people to self-determination has acquired a status beyond
convention and is considered a general principle of international law.
- The people’s right to self-determination should not be understood as
extending to a unilateral right of secession. A distinction should be made
between the right of internal and external self-determination.
o Internal- a people’s pursuit of its political, economic, social and
cultural development within the framework of an existing state.
o External- (which potentially takes the form of the assertion of a
right to unilateral secession) arises only the most extreme cases
and, even them under carefully defined circumstances.
- Positive International law does not recognize the right of national
groups, as such, to separate themselves from the State of which they
form part by the simple expression of a wish. The grant or refusal of
the right to a portion of its population of determining its own political
fate by plebiscite or by some other method, is, exclusively, an attribute
of the sovereignty of every State.
 INTERNATIONAL ORGANIZATIONS
016 Ebdalin: “The International Criminal Court: An Overview, 2001” (Adrias)
2001 | Franklin M. Ebdalin | International Organization
SUMMARY: On 17 July 1998, 120 States gathered in Rome for the Rome
Diplomatic Conference to adopt the Statute for the Establishment of the
International Criminal Court. The International Criminal Court (ICC) has
jurisdiction to try individuals for the most serious crimes of international
concern. It is permanent in character and not limited by geographical
boundaries.
Historical Background
The genesis of the ICC began in 1946 with the realization that important
principles and precedents should serve as basis for further codification of
international law. UN Security Council established ad hoc tribunal for such
crimes, which led to the realization that there was no mechanism to punish
perpetrators of heinous crimes when national systems failed or were unwilling to
take action against them.
Statute in Brief
Established as a permanent institution, has the power to exercise jurisdiction
over persons for the most serious crimes of international concern and
complementary to national criminal jurisdictions. Crimes covered are genocide,
crimes against humanity, war crimes, and the crime of aggression
Philippine Position
Philippines was for the establishment of an effective and efficient ICC. In order
for it to be effective and efficient, the Philippines submitted that the ICC should
have its own international legal personality
Salient Issues
Crime of aggression remains undefined and will not come within the
jurisdiction of the Court until a definition is adopted.
Article 17 of the Statute – Standards to determine whether a State is unwilling or
unable to carry out the case.
Role of the Security Council in the ICC
I. Historical Background
• On 17 July 1998, 120 States gathered in Rome for the Rome
Diplomatic Conference to adopt the Statute for the Establishment of the
International Criminal Court.
• The International Criminal Court (ICC) has jurisdiction to try
individuals for the most serious crimes of international concern.
• It is permanent in character and not limited by geographical boundaries.
• The genesis of the ICC began in 1946 with the realization that
important principles and precedents should serve as basis for further
codification of international law.
• During the Convention on the Prevention and Punishment of Genocide,
the International Law Commission (ILC) was invited to study the
desirability and possibility of establishing an international judicial
organ for the trial of persons charged with genocide.
• Consideration of the draft statute was postponed because the States
failed to agree on the definition of “aggression.”
• Events that led to the drafting of the ILC for an ICC as directed by the
UN General Assembly in 1992:
o Prosecution of drug traffickers
o War crimes in the guise of ‘ethnic cleansing’ in Yugoslavia
• UN Security Council established ad hoc tribunal for such crimes, which
led to the realization that there was no mechanism to punish
perpetrators of heinous crimes when national systems failed or were
unwilling to take action against them.
II. The Statute in Brief
Establishment - Established as a permanent institution
of the Court - Has the power to exercise jurisdiction over
persons for the most serious crimes of
international concern
- Complementary to national criminal jurisdictions
- Seat of the Court is to be established at The
Hague in Netherlands
Jurisdiction, - Article 5 states that jurisdiction of the Court shall
Admissibility, be limited “to the most serious crimes of concern
and Applicable to the international community as a whole,”
Law - Genocide, crimes against humanity, war crimes,
and the crime of aggression
- Note: Jurisdiction over the crime of aggression
only once a definition for it set by the States
- Jurisdiction over natural persons, without
distinction based on official capacity
- A person who commits a crime shall be
individually responsible and liable for such crime
- In the exercise of its jurisdiction, the Stature
mandates the Court to apply:
1. In the first place, this Statute, Elements of
Crimes and its Rules of Procedure and
Evidence
2. In the second place, where appropriate,
applicable treaties and the principles and
rules of international law, including the
established principles of the international law
 of armed conflict
3. Failing that, general principles of law derived
by the Court from national laws of legal
systems of the world including, as
appropriate, the national laws of States that
would normally exercise jurisdiction over the
crime
General Nullum crimen sine lege : an action may be
Principles of punished only if it had been made punishable
Criminal Law prior to its commission
- Nullum poena sine lege : the crimes within the
jurisdiction of the Court should be defined with
clarity and precision
- Mens Rea : the person shall be criminally liable
only if the material elements of the crime are
committed with intent and knowledge
- Non-retroactivity
- A person may not be tried and punished for the
same crime twice
Composition 1. Presidency – proper administration of the Court
and 2. Appeals Division
Administration 3. Trial Division
of the Court 4. Pre-Trial Division
5. Office of the Prosecutor – receiving referrals and
any substantiated info on crimes for examination
and investigation
6. Registry - non-judicial aspects of the
administration and servicing of the Court
Investigation - Initiated by the Prosecutor
and Prosecution - Pre-trial Chamber issues a warrant of arrest
Trial - Ensure that a trial is fair, expeditious, conducted
with full respect for the rights and protection of
persons
- Trial in absentia is not allowed
Penalties - Imprisonment (may not exceed 30 years)
- Life imprisonment
- Fines
- Forfeiture of assets
- Death penalty is excluded
- Note: Does not affect application of States of
penalties prescribed by their national law
Appeal and - Prosecutor and convicted person may appeal a
Revision final decision
- Grounds: procedural error, error of fact, or error
of law
International - Court’s viability depends on the cooperation of
Cooperation national jurisdiction
and Judicial - Court may request for the arrest and surrender of
Assistance the accused by the State where he may be found
Enforcement - Imprisonment served in States who indicated their
willingness to accept sentenced persons
- If no State is designated by the court, sentence
will be served in the Host State
Assembly of - Each State has one representative in the Assembly
State Parties and entitled to one vote
- Responsible for administrative concerns
(Management, budge, non-cooperating states etc.)
Financial - Contributions from Statre Parties
Regulations - Other voluntary contributions of governments,
international organizations, individuals,
corporations etc.
Final Clauses - ICC Statute will only enter into force after
ratification by 60 states
- Amendments to the Statre may be proposed only
after the expiry of 7 years from its entry into force
III. The Philippine Position
• Philippines was for the establishment of an effective and efficient ICC
• In order for it to be effective and efficient, the Philippines submitted
that the ICC should be constituted as an independent judicial organ by
means of a multilateral treaty (not through an amendment of the UN
Charter)
• Such ICC should have its own international legal personality
IV. Salient Issues
a. Crimes Covered
o Philippine delegation strongly advocated the inclusion of drug
trafficking, terrorism, and crimes committed against UN
personnel – was not approved
o Definition of Genocide
§ 1948 Genocide Convention definition was adopted
o Definition of Crimes Against Humanity
§ Committed as part of a widespread or systematic
attack;
§ Against any civilian population;
§ With knowledge of the attack
o Definition of War Crimes
§ Committed as part of a plan or policy or as part of a
large-scale commission of such crimes
§ Only acts which take place in a State where a
protracted armed conflict between governmental
authorities and organized armed groups exists
 o Crime of aggression remains undefined and will not come
within the jurisdiction of the Court until a definition is adopted
b. The Principle of Complementarity
o Essentially means that the Court will “complement,” not
replace national courts
o ICC can only step in when national authorities are unwilling
or unable to act
o ICC will only act in the absence of any action by national
judicial systems
o Article 17 of the Statute – Standards to determine whether a
State is unwilling or unable to carry out the case:
§ The proceedings were or are being undertaken or the
national decision was made for the purpose of
shielding the person concerned from criminal
responsibility for crimes within the jurisdiction of the
Court referred to in Article 5
§ There has been an unjustified delay in the
proceedings which in the circumstances is
inconsistent with an intent to bring the person
concerned to justice
§ The proceedings were not or are not being conducted
independently or impartially, and they were or are
being conducted in a manner which, under the
circumstances, is inconsistent with an intent to bring
the peson concerned to justice
c. The Role of the Security Council
o The Security Council is given the power to refer situations to
the Prosecutor for investigation, but this power is not reserved
exclusively for the Council – shared by the States as well.
o Prosecutor can investigate a situation on his own
o The Security Council can delay an investigation or
prosecution by Court through a resolution.

Final Notes
• As of 21 October 2001, 139 countries have signed the Statute, 43 have
ratified.
• Birth of the ICC will only come after 60 states ratify the Treaty
 017 ASEAN CHARTER (APASAN)
December 15, 2008 | N/A | International Organizations
SUMMARY: (Guys I just copied this from the official website of the ASEAN
for extra info or background regarding the ASEAN Charter)
The ASEAN Charter entered into force on 15 December 2008. A gathering of
the ASEAN Foreign Ministers was held at the ASEAN Secretariat in Jakarta to
mark this very historic occasion for ASEAN.
With the entry into force of the ASEAN Charter, ASEAN will henceforth
operate under a new legal framework and establish a number of new organs to
boost its community-building process.
In effect, the ASEAN Charter has become a legally binding agreement among
the 10 ASEAN Member States.
The importance of the ASEAN Charter can be seen in the following contexts:
• New political commitment at the top level
• New and enhanced commitments
• New legal framework, legal personality
• New ASEAN bodies
• Two new openly-recruited DSGs
• More ASEAN meetings
• More roles of ASEAN Foreign Ministers
• New and enhanced role of the Secretary-General of ASEAN
• Other new initiatives and changes
2.
DOCTRINE: The ASEAN Charter serves as a firm foundation in achieving the
ASEAN Community by providing legal status and institutional framework for
ASEAN. It also codifies ASEAN norms, rules and values; sets clear targets for
ASEAN; and presents accountability and compliance.
FACTS: (I did not include some of the provisions and paragraphs that personally for
me is irrelevant)
NOTE: ASEAN Charter entered into force on 15 December 2008 and signed by
Pres. Gloria Macapagal Arroyo on behalf of the Philippines.
CHAPTER I PURPOSES AND PRINCIPLES
1. ARTICLE 1. PURPOSES (note: I paraphrased some paragraphs of this
provision to make it shorter)
a. To maintain peace and security
b. To enhance cooperations between states
c. To preserve Southeast Asia as a Nuclear Weapon-Free Zone and
free of all other weapons of mass destruction
d. To ensure that the people live in the world with a just, democratic and
harmonious environment
e. To create a single market and production base that will effectively
facilitate trade and investment
f. To alleviate poverty through mutual assistance and cooperation
g. To promote and protect human rights and fundamental freedoms
h. To respond effectively, in accordance with the principle of
comprehensive security, to all forms of international crimes or threats
i. To promote sustainable development and protection of the environment
and natural resources, as well as cultural heritage
j. To develop human resources through education and life-long learning
k. To enhance the well-being and livelihood of the people by providing
them with equitable access for human development
l. To promote a people-oriented ASEAN in which all sectors of society are
encouraged to participate in, and benefit from, the process of ASEAN
integration and community building
m. To promote an ASEAN identity through the fostering of greater
awareness of the diverse culture and heritage of the region; and
n. To maintain the centrality and proactive role of ASEAN as the primary
driving force in its relations and cooperation with its external partners in
a regional architecture that is open, transparent and inclusive.
ARTICLE 2. PRINCIPLES
a. In pursuit of the Purposes stated in Article 1, ASEAN and its
Member States reaffirm and adhere to the fundamental principles
contained in the declarations, agreements, conventions, concords,
treaties and other instruments of ASEAN.
b. ASEAN and its Member States shall act in accordance with the
following Principles:
i. respect for the independence, sovereignty, equality, territorial
integrity and national identity of all ASEAN Member States;
ii. shared commitment and collective responsibility in enhancing
regional peace, security and prosperity;
iii. renunciation of aggression and of the threat or use of force or other
actions in any manner inconsistent with international law;
 iv. reliance on peaceful settlement of disputes; c. Republic of Indonesia
v. non-interference in the internal affairs of ASEAN Member d. Lao People’s Democratic Republic
States; e. Malaysia
vi. respect for the right of every Member State to lead its national f. Union of Myanmar
existence free from external interference, subversion and g. Republic of the Philippines
coercion; h. Republic of Singapore
vii. enhanced consultations on matters seriously affecting the common i. Kingdom of Thailand
interest of ASEAN; j. Socialist Republic of Viet Nam.
viii. adherence to the rule of law, good governance, the principles of
democracy and constitutional government; 5. ARTICLE 5. 
RIGHTS AND OBLIGATIONS
ix. respect for fundamental freedoms, the promotion and protection of a. Member States shall have equal rights and obligations under this
human rights, and the promotion of social justice; Charter.
x. upholding the United Nations Charter and international law, b. Member States shall take all necessary measures, including the
including international humanitarian law, subscribed to by ASEAN enactment of appropriate domestic legislation, to effectively implement
Member States; the provisions of this Charter and to comply with all obligations of
xi. abstention from participation in any policy or activity, including membership.
the use of its territory, pursued by any ASEAN Member State or c. In the case of a serious breach of the Charter or non-compliance,
non-ASEAN State or any non-State actor, which threatens the the matter shall be referred to Article 20 (the matter shall be
sovereignty, territorial integrity or political and economic referred to the ASEAN Summit for decision).
stability of ASEAN Member States;
xii. respect for the different cultures, languages and religions of the CHAPTER IV ORGANS
peoples of ASEAN, while emphasising their common values in the 6. ARTICLE 7. ASEAN SUMMIT
spirit of unity in diversity; a. The ASEAN Summit shall:
xiii. the centrality of ASEAN in external political, economic, social and i. be the supreme policy-making body of ASEAN;
cultural relations while remaining actively engaged, outward-looking, ii. deliberate, provide policy guidance and take decisions on key issues
inclusive and non-discriminatory; and pertaining to the realisation of the objectives of ASEAN, important
xiv. adherence to multilateral trade rules and ASEAN’s rules-based matters of interest to Member States and all issues referred to it by
regimes for effective implementation of economic commitments and the ASEAN Coordinating Council, the ASEAN Community
progressive reduction towards elimination of all barriers to regional Councils and ASEAN Sectoral Ministerial Bodies;
economic integration, in a market-driven economy. iii. address emergency situations affecting ASEAN by taking
appropriate actions;
CHAPTER II LEGAL PERSONALITY b. ASEAN Summit Meetings shall be:
3. ARTICLE 3.
LEGAL PERSONALITY OF ASEAN • held twice annually, and be hosted by the Member State holding
• ASEAN, as an inter-governmental organisation, is hereby conferred legal the ASEAN Chairmanship; and
personality.
7. ARTICLE 8. 
ASEAN COORDINATING COUNCIL
CHAPTER III MEMBERSHIP a. The ASEAN Coordinating Council shall comprise the ASEAN Foreign
4. ARTICLE 4. MEMBER STATES Ministers and meet at least twice a year.
a. Brunei Darussalam b. The ASEAN Coordinating Council shall:
b. Kingdom of Cambodia i. prepare the meetings of the ASEAN Summit;
 ii. coordinate the implementation of agreements and decisions of the
ASEAN Summit;
iii. coordinate with the ASEAN Community Councils to enhance policy
coherence, efficiency and cooperation among them
iv. approve the appointment and termination of the Deputy Secretaries-
General upon the recommendation of the Secretary-General
8. ARTICLE 9.
ASEAN COMMUNITY COUNCILS
a. The ASEAN Community Councils shall comprise:
i. ASEAN Political-Security Community Council
ii. ASEAN Economic Community Council
iii. ASEAN Socio-Cultural Community Council.
b. In order to realise the objectives of each of the three pillars of the
ASEAN Community, each ASEAN Community Council shall:
i. ensure the implementation of the relevant decisions of the ASEAN
Summit;
ii. coordinate the work of the different sectors under its purview, and
on issues which cut across the other Community Councils; and
iii. submit reports and recommendations to the ASEAN Summit on
matters under its purview.
c. Each ASEAN Community Council shall meet at least twice a year
and shall be chaired by the appropriate Minister from the Member State
holding the ASEAN Chairmanship.
9. ARTICLE 11. SECRETARY-GENERAL OF ASEAN AND ASEAN
SECRETARIAT
a. The Secretary-General shall:
i. carry out the duties and responsibilities of this high office in
accordance with the provisions of this Charter and relevant ASEAN
instruments, protocols and established practices;
ii. facilitate and monitor progress in the implementation of ASEAN
agreements and decisions, and submit an annual report on the work
of ASEAN to the ASEAN Summit;
iii. participate in meetings of the ASEAN Summit, the ASEAN
Community Councils, the ASEAN Coordinating Council, and
ASEAN Sectoral Ministerial Bodies and other relevant ASEAN
meetings;
iv. present the views of ASEAN and participate in meetings with
external parties in accordance with approved policy guidelines and
mandate given to the Secretary-General; and
v. recommend the appointment and termination of the Deputy
Secretaries-General to the ASEAN Coordinating Council for
approval.
b. The Secretariat shall basically assist the Secretary-General in the
latter’s duties.
10. ARTICLE 13
ASEAN NATIONAL SECRETARIATS
Each ASEAN Member State shall establish an ASEAN National
Secretariat which shall:
a. serve as the national focal point
b. be the repository of information on all ASEAN 
matters at the national
level
c. coordinate the implementation of ASEAN decisions at the national
level
d. coordinate and support the national preparations of ASEAN meetings;
e. promote ASEAN identity and awareness at the national level.
11. ARTICLE 14.
ASEAN HUMAN RIGHTS BODY
• Basically in charge of matters relating to the promotion and protection
of human rights and fundamental freedoms.
12. ARTICLE 15. ASEAN FOUNDATION
• It shall support the Secretary-General of ASEAN and collaborate with
the relevant ASEAN bodies to support ASEAN community building
by promoting greater awareness of the ASEAN identity, people-to-
people interaction, and close collaboration among the business sector,
civil society, academia and other stakeholders in ASEAN.
CHAPTER VI IMMUNITIES AND PRIVILEGES
13. ARTICLE 17. 
IMMUNITIES AND PRIVILEGES OF ASEAN
a. ASEAN shall enjoy in the territories of the Member States such
immunities and privileges as are necessary for the fulfilment of its
purposes.
b. The immunities and privileges shall be laid down in separate
agreements between ASEAN and the host Member State.
14. ARTICLE 19.
IMMUNITIES AND PRIVILEGES OF THE
PERMANENT REPRESENTATIVES AND OFFICIALS ON ASEAN
DUTIES
 a. The Permanent Representatives of the Member States to ASEAN
and officials of the Member States participating in official ASEAN
activities or representing ASEAN in the Member States shall enjoy
such immunities and privileges as are necessary for the exercise of
their functions.
b. The immunities and privileges of the Permanent Representatives and
officials on ASEAN duties shall be governed by the 1961 Vienna
Convention on Diplomatic Relations or in accordance with the
national law of the ASEAN Member State concerned.
CHAPTER VII DECISION-MAKING
15. ARTICLE 20. CONSULTATION AND CONSENSUS
a. As a basic principle, decision-making in ASEAN shall be based on
consultation and consensus.
b. Where consensus cannot be achieved, the ASEAN Summit may
decide how a specific decision can be made.
c. Nothing in paragraphs 1 and 2 (a and b above) of this Article shall
affect the modes of decision-making as contained in the relevant
ASEAN legal instruments.
d. In the case of a serious breach of the Charter or non-compliance,
the matter shall be referred to the ASEAN Summit for decision.
16. ARTICLE 21. IMPLEMENTATION AND PROCEDURE
• Each ASEAN Community Council shall prescribe its own rules of
procedure.
CHAPTER VIII SETTLEMENT OF DISPUTES
17. ARTICLE 22. GENERAL PRINCIPLES
• Member States shall endeavour to resolve peacefully all disputes in
a timely manner through dialogue, consultation and negotiation.
• ASEAN shall maintain and establish dispute settlement
mechanisms in all fields of ASEAN cooperation.
18. ARTICLE 25. ESTABLISHMENT OF DISPUTE SETTLEMENT
MECHANISMS
• Where not otherwise specifically provided, appropriate dispute
settlement mechanisms, including arbitration, shall be established
for disputes which concern the interpretation or application of this
Charter and other ASEAN instruments.
19. ARTICLE 26. UNRESOLVED DISPUTES
• When a dispute remains unresolved, after the application of the
preceding provisions of this Chapter (such as dispute settlements and
arbitration), this dispute shall be referred to the ASEAN Summit,
for its decision.
CHAPTER X ADMINISTRATION AND PROCEDURE
20. ARTICLE 33. 
DIPLOMATIC PROTOCOL AND PRACTICES
• ASEAN and its Member States shall adhere to existing diplomatic
protocol and practices in the conduct of all activities relating to
ASEAN. Any changes shall be approved by the ASEAN
Coordinating Council upon the recommendation of the Committee of
Permanent Representatives.
21. ARTICLE 34. 
WORKING LANGUAGE OF ASEAN (included just in
case ma’am asks)
• The working language of ASEAN shall be English.
CHAPTER XI IDENTITY AND SYMBOLS
22. ARTICLE 35. ASEAN IDENTITY
• ASEAN shall promote its common ASEAN identity and a sense of
belonging among its peoples in order to achieve its shared destiny,
goals and values.
23. ARTICLE 36. ASEAN MOTTO (included just in case ma’am asks)
• The ASEAN motto shall be: "One Vision, One Identity, One
Community"
CHAPTER XII EXTERNAL RELATIONS
24. ARTICLE 41. 
CONDUCT OF EXTERNAL RELATIONS
a. ASEAN shall develop friendly relations and mutually beneficial
dialogue, cooperation and partnerships with countries and sub-regional,
regional and international organisations and institutions.
b. ASEAN shall be the primary driving force in regional arrangements
that it initiates and maintain its centrality in regional cooperation and
community building.
c. In the conduct of external relations of ASEAN, Member States shall, on
the basis of unity and solidarity, coordinate and endeavour to develop
common positions and pursue joint actions.
CHAPTER XIII GENERAL AND FINAL PROVISIONS
25. ARTICLE 47. 
SIGNATURE, RATIFICATION, DEPOSITORY AND
ENTRY INTO FORCE
a. This Charter shall be signed by all ASEAN Member States.
b. This Charter shall be subject to ratification by all ASEAN Member
States in accordance with their respective internal procedures.

26. ARTICLE 48. AMENDMENTS

a. Any Member State may propose amendments to the Charter.
b. Proposed amendments to the Charter shall be submitted by the ASEAN
Coordinating Council by consensus to the ASEAN Summit for its
decision.
c. Amendments to the Charter agreed to by consensus by the ASEAN
Summit shall be ratified by all Member States in accordance with
Article 47.

27. ARTICLE 50. REVIEW

• This Charter may be reviewed five years after its entry into force or
as otherwise determined by the ASEAN Summit.

28. ARTICLE 52. LEGAL CONTINUITY

a. All treaties, conventions, agreements, concords, declarations, protocols
and other ASEAN instruments which have been in effect before the
entry into force of this Charter shall continue to be valid.
b. In case of inconsistency between the rights and obligations of ASEAN
Member States under such instruments and this Charter, the Charter
shall prevail.
 018 REPARATION FOR INJURIES SUFFERED IN THE SERVICE and to the victim.
OF THE UNITED NATIONS (Arcenas) 38. If this question were answered in the affirmative, it was further asked in
April 11, 1949 | ICJ | International Organizations – capacity to seek reparation what manner the action taken by the United Nations could be reconciled
with such rights as might be possessed by the State of which the victim was
a national.
PETITIONER: UN General Assembly
RESPONDENTS: Jerusalem
ISSUE/s:
14. WoN the United Nations has the capacity to bring an international claim
SUMMARY: After the assassination of Count Folke Bernadotte (United Nations
against the responsible de jure or de facto government to obtain reparation
Mediator in Palestine) and other members of the United Nations during a
caused
Mission in Palestine, Jerusalem on September 1948, the General Assembly
a. to the United Nations – Yes pursuant to their international
sought the opinion of the ICJ on whether UN had the capacity to bring an
personality and capacity to operation in the international plane
international claim against the State responsible with a view to obtaining
b. to the victim or to persons in the service of the United Nations –
reparation for damage caused to the UN and to the victim and the manner the
Yes. To perform their functions they must entrust missions to
reparation could be reconciled with the State which the victim is a national. In
agents; thus, UN is conferred capacity to protect their agents.
the ICJ’s Advisory Opinion of 11 April 1949, it held that the UN can claim
15. How such actions for reparation by the United Nations can be reconciled
reparation not only in respect of damage caused to itself, but also in respect of
with rights possessed by the State of which the victim is a national –
damage suffered by the victim or persons entitled through him. The capacity to
through general convention or particular agreement between States
claim reparation caused to itself is based on the UN’s intended functions and
rights which could only be explained on its possession of a large measure of
RULING: The court unanimously answered in the affirmative.
international personality and the capacity to operate upon the international plane.
Although, according to the traditional rule, diplomatic protection had to be
RATIO:
exercised by the national State, the UN should be regarded in international law
INT’L CAPACITY TO CLAIM FOR DAMAGE CAUSED TO UN
as possessing the powers which, even if they are not expressly stated in the
67. ICJ held that the UN was intended to exercise functions and rights based
Charter, are conferred upon the UN as being essential to the discharge of its
upon its possession of a large measure of international personality and the
functions. Therefore, the capacity to claim damage done to its agents stems from
capacity to operate upon the international plane.
necessity of supporting and protecting its agents when they are carrying out the
a. Capacity to bring an international claim necessarily belongs to a
duties entrusted to them by the UN in the most disturbed parts of the world. In
State.BUT, ICJ took into consideration the important political tasks
resolving the risk of possible competition between the UN and the victim’s
of the UN, which is to maintain international peace and security.
national State, ICJ held that it could be eliminated either by means of a general
68. ICJ came to the conclusion that the UN has the capacity to bring an
convention or by a particular agreement in any individual case.
international claim against a State, whether a Member or non-member,
for damage resulting from a breach by that State of its obligations
DOCTRINE: UN can claim reparation not only in respect of damage caused to
towards the UN.
itself, but also in respect of damage suffered by the victim or persons entitled
a. The extent of such reparation was not brought to ICJ’s attention
through him. Although, according to the traditional rule, diplomatic protection
but still they said that the measure of reparation should depend
had to be exercised by the national State, the UN should be regarded in
upon a number of factors which the Court gives as examples.
international law as possessing the powers which, even if they are not expressly
CAPACITY TO CLAIM REPARATION FOR AGENT’S INJURY
stated in the Charter, are conferred upon the UN as being essential to the
69. ICJ pointed out the question of diplomatic protection of nationals and that
discharge of its functions.
the State of which the victim is a national could not complain of a breach of
an obligation towards itself.
FACTS: 70. Although, according to the traditional rule, diplomatic protection had to be
36. September 1948, Jerusalem – Count Folke Bernadotte (United Nations exercised by the national State, the UN should be regarded in
Mediator in Palestine) and other members of the United Nations Mission to international law as possessing the powers which, even if they are not
Palestine were assassinated. expressly stated in the Charter, are conferred upon the UN as being
37. Then, the General Assembly asked the Court whether the United Nations essential to the discharge of its functions.
had the capacity to bring an international claim against the State 71. The UN may require to entrust its agents with important missions in
responsible with a view to obtain reparation for damage caused to the UN
 disturbed parts of the world. In such cases, it is necessary that the agents
should receive suitable support and protection.
72. Thus, ICJ concluded that the UN has the capacity to exercise functional
protection in respect of its agents. Hence, the UN has the capacity to claim
appropriate reparation, including also reparation for damage suffered by
the victim or by persons entitled through him.
a. If the victim-agent bears the nationality of the defendant State, ICJ
held the same does not matter because the victim’s status as an
agent of the UN is the very basis of the claim, not his nationality.
RECONCILIATION OF ACTIONS BY UN WITH RIGHTS OF THE STATE
73. ICJ also noted that the situation is simple in the case of Member States and
the challenge is when a claim is brought against a State which is not a
Member. ICJ did not state which of the 2 categories of protection should
have priority. In the case of Member States, ICJ stressed the UN’s duty to
render every assistance provided by Article 2 of the Charter.
74. The risk of possible competition between the UN and the victim’s national
State could be eliminated either by means of a general convention or by a
particular agreement in any individual case.
 INDIVIDUALS AND CORPORATIONS their own citizens, such circumvention is not entirely unproblematic and is likely to
be resisted. An alternative would be to focus on eliminating corruption and
19 Direct v. Indirect Obligations of Corporations Under International promoting democratic governance. The international community has taken steps in
Law (Bacquel) both areas; undoubtedly much more should be done. But even if bad governments
were made good, there would remain in discrepancy in enonomic power between
large corporations and small governments, and the feared race to the bottom. A race
to the bottom is, of course, a collective action problem, and an obvious solution to a
Abstract: collective action problem is an international agreement. But is a global convention
imposing human rights obligations on corporations the answer? The states facing the
International law today addresses the conduct of private corporations in a variety of collective action problem are the developing countries confronting large
areas. With very few exceptions, however, international law regulates corporate multinationals. Perhaps the best solution would be an agreement by developing
conduct indirectly – that is, by requiring states to enact and enforce regulations countries regarding standards for multinationals operating in their territory.
applicable to corporations and other non-state actors. Only a small number of
international legal norms - primarily those relating to war crimes, crimes against
humanity, and forced labor – apply directly to non-state actors. Scholars have argued
forcefully that international law should move in the direction of directly imposing
obligations on corporations. These arguments overlook important aspects of the
problem. If international legal norms were extended to corporations and backed by
effective enforcement mechanisms, states would lose control over compliance with
norms. If not accompanied by an effective enforcement mechanism, the norms would
probably be widely disregarded. The first option is likely to be strongly resisted by
states; the second option would do little for the interests sought to be protected and
would be bad for international law.

Summary:

It is unlikely that states will agree to a wholesale extension of current human rights
obligations to private corporations backed by an international enforcement
mechanism, and if the creation of such obligations without an enforcement
mechanism would do little for human rights, a number of other legal strategies
remain for protecting the interests of those adversely affected by corporate conduct.
One possibility would be an agreement imposing discrete human rights obligations
on private corporations, such as the obligation to refrain from torture. Whether states
would be willing to extend certain human rights obligations directly to non-state
actors will likely depend in large part on the strength of their conviction that
violations of the obligation should never be condoned. Another possibility would be
to impose more significant obligations on private corporations indirectly that is, by
requiring states to enact and enforce such obligations.

Whether agreements of either type would be feasible or wise are entirely separate
questions. As noted above, those concerned about corporate conduct in developing
countries that impinges upon human rights have turned their attention to international
law because of the perceived unwillingness or inability of the governments of those
countries to control the large multinationals that are harming their citizens. Although
few would shed tears over the circumvention of governments unwilling to protect
 020 JUDGMENT OF THE NUREMBERG INTERNATIONAL
MILITARY TRIBUNAL (BALISONG)
1 Oct. 1946 | International Military Tribunal in Session at Nuremberg, Germany |
Personalities under PIL; Indivduals and Organizations
PETITIONER: The United States of America, the French Republic, the United
Kingdom of Great Britain and Northern Ireland, and the Union of Societ
Socialist Republics
RESPONDENTS: Hermann Wilhelm Göring, Rudolf Hess, Joachim von
Ribbentrop, Robert Ley, Wilhelm Keitel, Ernst Kaltenbrunner, Alfred
Rosenberg, Hans Frank, Wilhelm Frick, Julius Streicher, Walter Funk, Hjalmar
Schacht, Gustav Krupp von Bohlen und Halbach, Karl Dönitz, Erich Raeder,
Baldur von Schirach, Fritz Sauckel, Alfred Jodl, Martin Bormann, Franz von
Papen, Artur Seyss-Inquart, Albert Speer, Constantin von Neurath, and Hans
Fritzsche, individually and as members of any of the following groups namely:
Die Reichsregierung (Reich Cabinet); Das Korps der Politischen Leiter der
Nationalsozialistischen Deutschen Arbeiterpartei (Leadership Corps of the Nazi
Party); Die Schutzstaffeln der Nationalsozialistischen Deutschen Arbeiterpartei
(commonly known as the “SS”) and including Der Sicherheitsdienst (commonly
known as the “SD”); Die Geheime Staatspolizei (Secret State Police, commonly
known as the “GESTAPO”); Die Sturmabteilungen der N.S.D.A.P. (commonly
known as the “SA”) and the General Staff and High Command of the German
Armed Forces.
SUMMARY: The case brings under the prosecution various individuals and
organizations involved who were active during WWII, particularly those who
were connected to the Nazi regime. The indictment charges the defendants with
Crimes Against Peace, with War Crimes, Crimes Against Humanity, and with
participating in the formulation or execution of a common Plan or Conspiracy to
Commit all these Crimes. Defendant Robert Ley committed suicide while in
detention, while Defendant Martin Bormann was tried in absentia. To this end,
the Prosecution presented a voluminous body of evidence pointing to the Nazi’s
planning or aggressive war, which resulted in the invasion of Austria, the
seizure of Czecchoslovakia, the aggression against Poland, the invasion of
Denmark and Norway, the invasion of Belgium, the Netherlands, and
Luxemburg, the aggression against Yugoslavia and Greece, the aggressive war
against the Union of Soviet Socialist Republics, violations of the Hague
Conventions, the Versailles Treaty, Treaties of Mutual Guarantee, Arbitration,
and Non-Aggression, and the Kellogg-Briand Pact. The Prosecution also
presented evidence on the war crimes and crimes against humanity alleged to
have been committed by the defendants, to wit: Murder and Ill-treatment of
prisoners of war, murder and ill-treatment of civilian population, slave labour
policy, and the persecution of the Jews. The issue before the Tribunal is whether
it has jurisdiction over the persons and organizations charged with the above
crimes. The Tribunal held that they did. It held that it is bound by the Charter or
the League of Nations, granting it jurisdiction over Crimes Against Peace, War
Crimes, and Crimes Against Humanity. It held further that war is essentially an
evil thing. Its consequences are not confined to the belligerent States alone, but
affect the whole world. To initiate a war of aggression, therefore, is not only an
international crime; it is the supreme international crime differing only from
other war crimes in that it contains within itself the accumulated evil of the
whole. The Charter makes the planning or waging of a war of aggression or a
war in violation of international treaties a crime; and it is therefore not strictly
necessary to consider whether and to what extent aggressive war was a crime
before the execution of the London Agreement. It was urged on behalf of the
defendants that a fundamental principle of all law — international and
domestic - is that there can be no punishment of crime without a pre-existing
law. "Nullum crimen sine lege, nulla poena sine lege." To assert that it is unjust
to punish those who in defiance of treaties and assurances have attacked
neighbouring States without warning is obviously untrue, for in such
circumstances the attacker must know that he is doing wrong, and so far from it
being unjust to punish him, it would be unjust if his wrong were allowed to go
unpunished. Occupying the positions they did in the Government of Germany,
the defendants, or at least some of them, must have known of the treaties signed
by Germany, outlawing recourse to war for the settlement of international
disputes; they must have known that they were acting in defiance of all
International Law when in complete deliberation they carried out their designs
of invasion and aggression. It was submitted that International Law is concerned
with the actions of sovereign States and provides no punishment for individuals;
and further, that where the act in question is ad act of State, those who carry it
out are not personally responsible, but are protected by the doctrine of the
sovereignty of the State. In the opinion of the Tribunal, both these submissions
must be rejected. That International Law imposes duties and liabilities upon
individuals as well as upon States has long been recognized. Crimes against
International Law are committed by men, not by abstract entities, and only by
punishing individuals who commit such crimes can the provisions of
International Law be enforced. the very essence of the Charter is that individuals
have international duties which transcend the national obligations of obedience
imposed by the individual State. He who violates the laws of war cannot obtain
immunity while acting in pursuance of the authority of the State if the State in
authorizing action moves outside its competence under International Law. The
true test, which is found in varying degrees in the criminal law of most nations,
is not the existence of the order, but whether moral choice was in fact possible.
Planning and preparation are essential to the making of war. In the opinion of
the Tribunal aggressive war is a crime under International Law. The Charter
defines this offence as planning, preparation, initiation, or waging of a war of
aggression "or participation in a common plan or conspiracy for the
accomplishment . . . of the foregoing." Conspiracy is not defined in the Charter.
But in the opinion of the Tribunal the conspiracy must be clearly outlined in its
criminal purpose. It must not be too far removed from the time of decision and
of action. The planning, to be criminal, must not rest merely on the declarations
of a Party programme, such as are found in the twenty-five points of the Nazi
Party, announced in 1920, or the political affirmations expressed in Mein
Kampf in later years. The Tribunal must examine whether a concrete plan to
wage war existed, and determine the participants in that concrete plan. the
evidence establishes the common planning to prepare and wage war by certain
of the defendants. It is immaterial to consider whether a single conspiracy to the
extent and over the time set out in the Indictment has been conclusively proved.
Continued planning, with aggressive war as the objective, has been established
beyond doubt. But the Charter does not define as a separate crime any
conspiracy except the one to commit acts of aggressive war. Article 10 of the
Charter makes clear that the declaration of criminality against an accused
organization is final, and cannot be challenged in any subsequent criminal
proceeding against a member of the organization. In effect, therefore, a member
of an organization which the Tribunal has declared to be criminal may be
subsequently convicted of the crime of membership and be punished for that
crime by death. Article 9, it should be noted, uses the words "The Tribunal may
declare," so that the Tribunal is vested with discretion as to whether it will
declare any organization criminal. This discretion is a judicial one and does not
permit arbitrary action, but should be exercised in accordance with well-settled
legal principles, one of the most important of which is that criminal guilt is
personal, and that mass punishments should be avoided. If satisfied of the
criminal guilt of any organization or group, this Tribunal should not hesitate to
declare it to be criminal because the theory of "group criminality" is new, or
because it might be unjustly applied by some subsequent tribunals. On the other
hand, the Tribunal should make such declaration of criminality so far as
possible in a manner to ensure that innocent persons will not be punished. A
criminal organization is analogous to a criminal conspiracy in that the essence
of both is co-operation for criminal purposes. There must be a group bound
together and organized for a common purpose. The group must be formed or
used in connection with the commission of crimes denounced by the Charter.
Since the declaration with respect to the organizations and groups will, as has
been pointed out, fix the criminality of its members, that definition should
exclude persons who had no knowledge of the criminal purposes or acts of the
organization and those who were drafted by the State for membership, unless
they were personally implicated in the commission of acts declared criminal by
Article 6 of the Charter as members of the organization. Membership alone is
not enough to come within the scope of these declarations. Since declarations d
criminality which the Tribunal makes will be used by other courts in the trial of
persons on account of their membership in the organizations found to be
criminal, the Tribunal feels it appropriate to make the following
recommendations:
1. That so far as possible throughout the four zones of occupation in Germany
the classifications, sanctions and penalties be standardized. Uniformity of
treatment so far as practicable should be a basic principle. This does not, of
course, mean that discretion in sentencing should not be vested in the court; but
the discretion should be within fixed limits appropriate to the nature of the
crime.
2. Law No. 10, to which reference has already been made, leaves punishment
entirely at the discretion of the trial court even to the extent of inflicting the
death penalty. The De-Nazification Law of 5th March, 1946, however, passed
for Bavaria, Greater Hesse, and Württemberg-Baden, provides definite
sentences for punishment in each type of offence. The Tribunal recommends
that in no case should punishment imposed under Law No. 10 upon any
members of an organization or group declared by the Tribunal to be criminal
exceed the punishment fixed by the De-Nazification Law. No person should be
punished under both laws.
3. The Tribunal recommends to the Control Council that Law No. 10 be
amended to prescribe limitations on the punishment which may be imposed for
membership in a criminal group or organization, so that such punishment shall
not exceed the punishment prescribed by the De- Nazification Law. The
Indictment asks that the Tribunal declare to be criminal the following
organizations: The Leadership Corps of the Nazi Party; the Gestapo; the SD; the
SS; the SA; the Reich Cabinet, and the General Staff and High Command of the
German Armed Forces.
ORGANIZATIONS

STRUCTURE AND
ORGANIZATION AIMS AND ACTIVITIES CRIMINAL ACTIVITY CONCLUSION
COMPONENT PARTS

The official organization of the Nazi

The Leadership Corps of the Nazi
Party
Party, with Hitler as Führer at its
head. The actual work of running
the Leadership Corps was carried The Leadership Corps was used for
out by the Chief of the Party purposes which were criminal under
Chancellery assisted by the Party the Charter and involved the
Reich Directorate, or Reichsleitung, Germanization of incorporated
which was composed of the territory, the persecution of the
Reichsleiters, the heads of the Jews, the administration of the slave
functional organizations of the It was involved in the economic and labour programme, and the
Party, as well as of the heads of the political discrimination against the mistreatment of prisoners of war.
various main departments and Jews which was put into effect
offices which were attached to the shortly after the Nazis came into The Tribunal declares to be criminal
Party Reich Directorate. Under the power. The Leadership Corps was within the meaning of the Charter
Chief of the Party Chancellery were also used to prevent German public the group composed of those
the Gauleiter, with territorial opinion from reacting against the members of the Leadership Corps
jurisdiction over the major measures taken against the Jews in holding the positions of Gauleiter,
The primary purpose of the
administrative regions of the Party, the East. The Leadership Corps Kreisleiter, Ortsgruppenleiter,
Leadership Corps from its beginning
the Gaue. The Gauleiter were played an important part in the Reichsleitung, and the Amtsleiter,
was to assist the Nazis in obtaining
assisted by a Party Gau Directorate administration of the Slave Labour became or remained members of the
and in retaining, control of the
or Gauleitung, similar in Program. The Leadership Corps was organization with knowledge that it
German State.
composition and in function to the directly concerned with the was being used for the commission
Party Reich Directorate. Under the treatment of prisoners of war. The of acts declared criminal by Article
Gauleiter in the Party hierarchy machinery of the Leadership Corps 6 of the Charter, or who were
were the Kreisleiter with territorial was also utilized in attempts made to personally implicated as members of
jurisdiction over a Kreis, usually deprive Allied airmen of the the organization in the commission
consisting of a single county, and protection to which they were of such crimes. The basis of this
assisted by a Party Kreis entitled under the Geneva finding is the participation of the
Directorate, or Kreisleitung. The Convention. organization in War Crimes and
Kreisleiter were the lowest members Crimes Against Humanity
of the Party hierarchy who were connected with the war; the group
full-time paid employees. Directly declared criminal cannot include,
under the Kreisleiter were the therefore, persons who had ceased to
Ortsgruppenleiter, then the hold the positions enumerated prior
Zellenleiter and then the Blockleiter. to 1 Sep. 1939.
Directives and instructions were
received from the Party Reich
Directorate.

The Gestapo had been composed of
the various political police forces of
the several German Federal States
which had been unified into one
administrative unit, the Reichs
Security Head Office (RSHA). The
creation of the RSHA represented
Die Geheime Staatspolizei
the formalization, at the top level, of
(Gestapo) and Der Sicherheitsdientst
the relationship under which the SD
des Reichsfürer SS (SD)
served as the intelligence agency for
the Security Police. Both the
Gestapo and the SD were important
and closely related groups within the
organization of the Security Police
and the SD. The Security Police and
SD was a voluntary organization.
One of the primary functions of the
Gestapo was the prevention of any
political opposition to the Nazi
regime, a function which it
performed with the assistance of the
SD. The principal weapon used in
performing this function was the
concentration camp. The Gestapo
did not have administrative control
over the concentration camps, but,
acting through the RSHA, was
responsible for the detention of
political prisoners in those camps.
Gestapo officials were usually
responsible for the interrogation of
political prisoners at the camps. The
Gestapo and the SD also dealt with
charges of treason and with
questions relating to the Press, the
Churches and the Jews. Offices of
the Security Police and SD were
involved in the administration of the
slave labour programme. The local
offices of the Security Police and
SD were also involved in the
commission of war crimes involving
the mistreatment and murder of
prisoners of war.
The Tribunal declares to be criminal
within the meaning of the Charter
the group composed of those
members of the Gestapo and SD —
all executive and administrative
officials of Amt IV of the RSHA, or
concerned with Gestapo
administration in other departments
of the RSHA, and all local Gestapo
officials serving both inside and
outside Germany, including the
members of the Frontier Police, but
not including the members of the
Border and Customs Protection or
the Secret Field Police, except such
members as have been specified
above, does not include persons
employed by the Gestapo for purely
clerical, stenographic, janitorial or
similar unofficial routine tasks; in
dealing with the SD the Tribunal
includes Ämter III, VI and VII of
the RSHA and all other members of
the SD, including all local
representatives and agents, honorary
or otherwise, whether they were
technically members of the SS or
not — who became or remained
members of the organization with
knowledge that it was being used for
the commission of acts declared
criminal by Article 6 of the Charter,
or who were personally implicated
as members of the organization in
the commission of such crimes. The
basis for this finding is the
participation of the organization in
War Crimes and Crimes Against
Humanity connected with the war;
this group declared criminal cannot
include, therefore, persons who had
ceased to hold the positions
enumerated prior to 1st September,
1939.

The SS Central Organization had
twelve main offices. The most
important of these were the RSHA,
the WVHA or Economic
Administration Main Office, which
administered concentration camps
along with its other duties, a Race
and Settlement Office together with
auxiliary offices for repatriation of
racial Germans (Volksdeutsche
Die Schutztaffeln der
Mittelstelle). The SS central
Nationalsozialistischen Deutschen
organization also had a legal office
Arbeuterpartei (SS)
and the SS possessed its own legal
system; and its personnel were
under the jurisdiction of special
courts. Also attached to the SS main
offices was a research foundation
known as the Experiments
Ahnenerbe, which conducted
extensive experiments involving
living human beings. The SS was an
entirely voluntary organization.
The SA was founded in 1921 for
political purposes. It was organized
on military lines. Its members wore
Die Sturmabteilungen der
their own uniforms and had their
Nationalsozialistischen Deutschen
own discipline and regulations. The
Arbeiterpartei (SA)
Tribunal therefore finds that
membership in the SA was generally
voluntary.
Originally an intelligence branch of
the SS, later became an important
part of the organization of Security
Police and SD and is dealt with in
the Tribunal's Judgment on the
Gestapo. The SS was originally
established by Hitler in 1925 as an
élite section of the SA for political
purposes under the pretext of
protecting speakers at public
meetings of the Nazi Party. After the
Nazis had obtained power the SS
was used to maintain order and
control audiences at mass
demonstrations and was given the
additional duty of "internal security"
by a decree of the Führer.
They took part in the beer-hall feuds
and were used for street fighting
against political opponents. The SA
was also used to disseminate Nazi
ideology and propaganda, and
placed particular emphasis on anti-
Semitic propaganda, the doctrine of
"Lebensraum," the revision of the
Versailles Treaty and the return of
Germany's colonies.
Active participants in the steps
leading up to the aggressive war.
Through its control over the
organization of the police,
particularly the Security Police and
SD, the SS was involved in all the
crimes which have been outlined in
the section of this Judgment dealing
The Tribunal declares to be criminal
with the Gestapo and SD. Other
within the meaning of the Charter
branches of the SS were equally
the group composed of those
involved in these criminal
persons who had been officially
programmes. There is evidence that
accepted as members of the SS who
the shooting of unarmed prisoners of
became or remained members of the
war was the general practice in some
organization with knowledge that it
Waffen SS divisions. Under the
was being used for the commission
guise of combating partisan units,
of acts declared criminal by Article
units of the SS exterminated Jews
6 of the Charter, or who were
and people deemed politically
personally implicated as members of
undesirable by the SS, and their
the organization in the commission
reports record the execution of
of such crimes, excluding, however,
enormous numbers of persons. The
those who were drafted into
SS was responsible for the guarding
membership by the State in such a
and administration of concentration
way as to give them no choice in the
camps. The SS was directly
matter, and who had committed no
involved in the demonstrations of
such crimes.
10th November, 1938. The
evacuation of the Jews from
occupied territories was carried out
under the directions of the SS with
the assistance of SS police units.
The extermination of the Jews was
carried out under the direction of the
SS central organizations.
The SA was a group composed in
large part of ruffians and bullies
who participated in the Nazi
After 1934 the SA engaged in
outrages of that period. It has not
certain forms of military or para-
been shown, however, that these
military training. The SA continued
atrocities were part of a specific plan
to engage in the dissemination of
to wage aggressive war, and the
Nazi propaganda.
Tribunal therefore cannot hold that
these activities were criminal under
the Charter.

Consisting of members of the
ordinary Cabinet after 30th January,
The Reich Cabinet (Die 1933, members of the Council of
Reichsregierung) Ministers for the Defence of the
Reich and members of the Secret
Cabinet Council.
General Staff and High Command
of the German Armed Forces
INDIVIDUALS
DEFENDANT INVOLVMENT
Göring After Hitler, he was the ost
prominent man in the Nazi
regime. He was CIC of the
Luftwaffe, Plenipotentiary for the
INDICTMENT
CRIMES AGAINST PEACE:
Command of the SA.
Instrumental in bringing the
Natinal Socialists to power.
The Tribunal is of opinion that no
declaration of criminality should be
made with respect to the Reich
Cabinet, for two reasons:
(1) because it is not shown that after
1937 it ever really acted as a group
or organization;
(2) because the group of persons
here charged is so small that
members could be conveniently
tried in proper cases without resort
to a declaration that the Cabinet of
which they were members was
criminal.
The Tribunal believes that no
declaration of criminality should be
made with respect to the General
Staff and High Command. The
number of persons charged, while
larger than that of the Reich
Cabinet, is still so small that
individual trials of these officers
would accomplish the purpose here
sought better than a declaration such
as is requested. But a more
compelling reason is that in the
opinion of the Tribunal the General
Staff and High Command is neither
an "organization" nor a "group"
within the meaning of those terms as
used in Article 9 of the Charter.
CONCLUSION SENTENCE
Göring is guilty on all four Death by hanging.
counts of the indictment.
 Four-Year Paln, and had
tremendous influence with Hitler.
Hess Hitler’s closest personal
confidant, Deputy to the Führer,
Reich Minister without Portfolio,
member of the Secret Cabinet
Developed the Gestapo and
created the first concentration
camps. He was the economic
dictator of the Reich. Even if he
opposed Hitler's plans against
Norway and the Soviet Union, as
he alleged, it is clear that he did
so only for strategic reasons;
once Hitler had decided the issue,
he followed him without
hesitation.
WAR CRIMES AND CRIMES
AGAINST HUMANITY: The
record is filled with Göring's
admissions of his complicity in
the use of slave labour. Göring
was often, indeed almost always,
the moving force, second only to
his leader. He was the leading
war aggressor, both as political
and as military leader; he was the
director of the slave labour
programme and the creator of the
oppressive programme against
the Jews and other races, at home
and abroad. All of these crimes
he has frankly admitted. On some
specific cases there may be
conflict of testimony, but in
terms of the broad outline his
own admissions are more than
sufficiently wide to be conclusive
of his guilt. His guilt is unique in
its enormity. The record discloses
no excuses for this man.
CRIMES AGAINST PEACE: The Tribunal finds the defendant Imprisonment for life
Hess was the top man in the Nazi Hess guilty on Counts One and
Party, with responsibility for Two; and not guilty on Counts
handling all Party matters, and
 Council, member of the
Ministerial Council for the
Defence of the Reich, successor
designate to the Führer after
Göring.
Ribbentrop Foreign Policy Adviser to Hitler,
Representative of the Nazi Party
on foreign policy, Delegate for
Disarmament Questions, Minister
Plenipotentiary at Large,
Ambassador to England, Reich
Minister for Foreign Affairs.
authority to make decisions in Three and Four.
Hitler's name on all questions of
Party leadership. He had the
authority to approve all
legislation suggested by the
different Reich Ministers before
it could be enacted as law. In
these positions Hess was an
active supporter of preparations
for war. His signature appears on
the law establishing compulsory
military service. Throughout the
years he supported Hitler's policy
of vigorous rearmament. Hess
was an informed and willing
participant in the German
aggression agaixnst Austria,
Czechoslovakia, and Poland.
WAR CRIMES AND CRIMES
AGAINST HUMANITY: The
Tribunal, however, does not find
that the evidence sufficiently
connects Hess with those crimes
to sustain a finding of guilt.
CRIMES AGAINST PEACE: Guilty on all four counts. Death by hanging
Ribbentrop participated in the
aggressive plans against
Czechoslovakia. Ribbentrop
played a particularly significant
role in the diplomatic activity
which led up to the attack on
Poland.
WAR CRIMES AND CRIMES
AGAINST HUMANITY:
Ribbentrop is therefore
responsible for the general
economic and political policies
put into effect in the occupation

Keitel Chief of Staff to the Minsiter of
War, Chief of the High
Command of the Armed Forces.
Kaltenbrunner Leader of the SS in Austria,
Austrian State Secretary for
Security, Higher SS and Police
Leader, Chief of the Security
Police and SD and Head of the
Reich Security Head Office, held
the rank of Obergruppenführer in
the SS.
of these countries. He urged the
Italians to adopt a ruthless
occupation policy in Yugoslavia
and Greece. He played an
important part in Hitler's "final
solution" of the Jewish question.
CRIMES AGAINST PEACE: Guilty on all four counts. Death by hanging
Keitel made the military and
other arrangements. Keitel signed
many directives and memoranda
on "Fall Grün."
WAR CRIMES AND CRIMES
AGAINST HUMANITY: Keitel
ordered that attacks on soldiers in
the East should be met by putting
to death fifty to one hundred
Communists for one German
soldier, with the comment that
human life was less than nothing
in the East. Keitel directed that
Russian prisoners of war be used
in German war industry.
CRIMES AGAINST PEACE: Not guilty on Count One. He is Death by hanging
Active in the Nazi intrigue guilty on Counts Three and Four.
against the Schuschnigg
Government of Austria. But there
is no evidence connecting
Kaltenbrunner with plans to
wage aggressive war on any
other front.
WAR CRIMES AND CRIMES
AGAINST HUMANITY: During
the period in which
Kaltenbrunner was head of the
RSHA it was engaged in a
widespread programme of War
Crimes and Crimes Against

Rosenberg Party's ideologist, he developed
and spread Nazi doctrines in the
newspapers Völkischer
Beobachter and NS Monatshefte,
which he edited, and in the
numerous books he wrote.
Representative for Foreign
Affairs, Reichsleiter and head of
the Office of Foreign Affairs of
the NSDAP, Deputy for the
Supervision of the entire
Spiritual and Ideological training
of the NSDAP, Reich Minister
for the Occupied Eastern
Territories.
Humanity. The RSHA played a
leading part in the "final
solution" of the Jewish question
by the extermination of the Jews.
under the supervision of the
RSHA when Kaltenbrunner was
head of that organization, and
special missions of the RSHA
scoured the occupied territories
and the various Axis satellites
arranging for the deportation of
Jews to these extermination
institutions.
CRIMES AGAINST PEACE: In Guilty on all four counts. Death by hanging
charge of an organization whose
agents were active in Nazi
intrigue in all parts of the world.
Responsible for Roumania's
joining the Axis. played an
important role in the preparation
and planning of the attack on
Norway. Rosenberg bears a
major responsibility for the
formulation and execution of
occupation policies in the
occupied Eastern territories.
WAR CRIMES AND CRIMES
AGAINST HUMANITY:
Responsible for a system of
organized plunder of both public
and private property throughout
the invaded countries of Europe.
helped to formulate the policies
of Germanization, exploitation,
forced labour, extermination of
Jews and opponents of Nazi rule,
and he set up the administration
which carried them out.
Frank Member of the Reichstag,
Bavarian State Minister of
Justice, Reich Minister without
Portfolio, Reichsleiter of the Nazi
Party in charge of Legal Affairs,
President of the Academy of
German Law, honorary rank of
Obergruppenführer in the SA.
Was dismissed as Reichsleiter of
the Nazi Party and as President
of the Academy of German Law.
Chief Civil Adminsitration
Officer for Occupied Polish
Territory, Governor General of
the Occupied Polish Territory.
Frick Reich Minister of Interior, Reich
Protector of Bohemia and
Moravia, Prussian Minister of the
Interior, Reich Director of
Elections, General
Plenipotentiary for the
Administration of the Reich,
member of the Reich Defence
CRIMES AGAINST PEACE: Not guilty on Count One, but is Death by hanging
The evidence has not satisfied the guilty on Counts Three and Four.
Tribunal that Frank was
sufficiently connected with the
common plan to wage aggressive
war to allow the Tribunal to
convict him on Count One.
WAR CRIMES AND CRIMES
AGAINST HUMANITY:
Occupation policy was based on
the complete destruction of
Poland as a national entity, and a
ruthless exploitation of its human
and economic resources for the
German war effort. Frank issued
a decree under which any non-
Germans hindering German
construction in the Government
General were to be tried by
summary courts of the Security
Police and SD and sentenced to
death. But the suffering was
increased by a planned policy of
enonomic exploitation. Frank
introduced the deportation of
slave labourers to Germany in the
very early stages of his
administration. The persecution
of the Jews was immediately
begun in the Government
General.
CRIMES AGAINST PEACE: Not guilty on Count One. He is Death by hanging
Frick was largely responsible for guilty on Counts Two, Three, and
bringing the German Nation Four.
under the complete control of the
NSDAP. Frick devised an
administrative organization in
accordance with war-time
standards. According to his own
 Council, the Ministerial Council
for Defence of the Reich, and the
“Three-Man Council,”
Reichsleiter of the National
Socialist faction.
Streicher Took part in the Munich Putsch,
Gauleiter of Franconia, honorary
general in the SA. Publisher and
editor of Der Stümer, an anti-
Semitic weekly newspaper.
statement, this was actually put
into operation after Germany
decided to adopt a policy of war.
WAR CRIMES AND CRIMES
AGAINST HUMANITY: Frick
drafted, signed, and administered
many laws designed to eliminate
Jews from German life and
economy. Special penal laws
against Jews and Poles in the
Government General. Frick knew
full well what the Nazi policies
of occupation were in Europe,
particularly with respect to Jews,
at that time, and by accepting the
office of Reich Protector he
assumed responsibility for
carrying out those policies in
Bohemia and Moravia. He had
knowledge that insane, sick and
aged people, "useless eaters,"
were being systematically put to
death. Complaints of these
murders reached him, but he did
nothing to stop them.
CRIMES AGAINST PEACE: Not guilty on Count One, but that Death by hanging
There is no evidence to show that he is guilty on Count Four.
he was ever within Hitler's inner
circle of advisers; nor during his
career was he closely connected
with the formulation of the
policies which led to war.
CRIMES AGAINST
HUMANITY: He infected the
German mind with the virus of
anti-Semitism and incited the
German people to active
persecution. With knowledge of

Funk One of Hitler’s personal
economic advisers, Press Chief in
the Reich Government,
Undersecretary in the Ministry of
Propaganda, a leading figure in
the various Nazi organizations
which were used to control
media, Minister f Economics and
Plenipotentiary General for War
Economy, President of the
Reichsbank, member of the
Ministerial Council for the
Defence of the Reich, member of
the Central Planning Board.
the extermination of the Jews in
the occupied Eastern territory,
this defendant continued to write
and publish his propaganda of
death. Streicher's incitement to
murder and extermination, at the
time when Jews in the East were
being killed under the most
horrible conditions, clearly
constitutes persecution on
political and racial grounds in
connection with War Crimes, as
defined by the Charter, and
constitutes a Crime Against
Humanity.
CRIMES AGAINST PEACE: Not guilty on Count One, but is Imprisonment for life
Participated in the economic guilty on Counts Two, Three, and
preparation for certain of the Four.
aggressive wars, notably those
against Poland and the Soviet
Union, but his guilt can be
adequately dealt with under
Count Two of the Indictment.
WAR CRIMES AND CRIMES
AGAINST HUMANITY: Funk
had participated in the early Nazi
programme of economic
discrimination against the Jews.
The gold from the eyeglasses and
gold teeth and fillings was stored
in the Reichsbank vaults. Funk
either knew what was being
received or was deliberately
closing his eyes to what was
being done. As Minister of
Economics and President of the
Reichsbank, Funk participated in
the economic exploitation of
occupied territories. Funk was

Schacht Commissioner of Currency and
President of the Reichsbank,
Minister of Economics,
Plenipotentiary General for War
economy, Minister without
Portfolio.
Dönitz Took command of the U-boat
flotilla, commander of the
aware that the Board of which he
was a member was demanding
the importation of slave labourers
and allocating them to the
various industries under its
control. In spite of the fact that
he occupied important official
positions, Funk was never a
dominant figure in the various
programmes in which he
participated. This is a mitigating
fact of which the Tribunal takes
notice.
CRIMES AGAINST PEACE: Not guilty. He shall be discharged by the
Played an important role in the Marshall.
vigorous rearmament programme
which was adopted, using the
facilities of the Reichsbank to the
fullest extent in the German
rearmament effort. It is clear that
Schacht was a central figure in
Germany's rearmament
programme, and the steps which
he took, particularly in the early
days of the Nazi regime, were
responsible for Nazi Germany's
rapid rise as a military power.
But rearmament of itself is not
criminal under the Charter. To be
a Crime Against Peace under
Article 6 of the Charter it must be
shown that Schacht carried out
this rearmament as part of the
Nazi plans to wage aggressive
wars.
CRIMES AGAINST PEACE: Not guilty on Count One, and is Ten years’ imprisonment
Although Dönitz built and
submarine arm, vice admiral,
admiral, Commander in Chief of
the German Navy, Head of State
succeeding Hitler.
trained the German U-boat arm, guilty on Counts Two and Three.
the evidence does not show he
was privy to the conspiracy to
wage aggressive wars or that he
prepared and initiated such wars.
He was a line officer performing
strictly tactical duties. Dönitz
did, however, wage aggressive
war within the meaning of that
word as used by the Charter.
Submarine warfare, which began
immediately upon the outbreak
of war, was fully co-ordinated
with the other branches of the
Wehrmacht. It is clear that his U-
boats, few in number at the time,
were fully prepared to wage war.
WAR CRIMES: The German U-
boat arm began to wage
unrestricted submarine warfare
upon all merchant ships, whether
enemy or neutral, cynically
disregarding the Protocol, and
that a calculated effort was made
throughout the war to disguise
this practice by making
hypocritical references to
International Law and supposed
violations by the Allies. the
Tribunal is not prepared to hold
Dönitz guilty for his conduct of
submarine warfare against British
armed merchant ships. However,
the proclamation of operational
zones and the sinking of neutral
merchant vessels which enter
those zones presents a different
question. The order of Dönitz to
sink neutral ships without
warning when found within these

Raeder Chief of the Naval Command,
Oberbefehlshaber der
Kriegsmarine (OKM), Gross-
Admiral, member of the Reich
Defence Council, Admiral
Inspector of the Navy.
zones was, therefore a violation
of the Protocol. Dönitz
deliberately ordered the killing of
shipwrecked survivors. A man in
his position must necessarily
have known that citizens of
occupied countries in large
numbers were confined in the
concentration camps. The
Geneva Convention was not,
however, denounced by
Germany. The defence has
introduced several affidavits to
prove that British naval prisoners
of war in camps under Dönitz's
jurisdiction were treated strictly
according to the Convention, and
the Tribunal takes this fact into
consideration, regarding it as a
mitigating circumstance.
CRIMES AGAINST PEACE: Guilty on Counts One, Two, and Imprisonment for life.
Built and directed the German Three.
Navy. The conception of the
invasion of Norway first arose in
the mind of Raeder and not that
of Hitler. He urged the
occupation of all Greece. Raeder
participated in the planning and
waging of aggressive war.
WAR CRIMES: The most
serious charge against Raeder is
that he carried out unrestricted
submarine warfare, including
sinking of unarmed merchant
ships, of neutrals, and non-rescue
and machine-gunning of
survivors, contrary to the London
Protocol of 1936. The Tribunal
makes the same finding on

Von Schirach Leader of the National Socialist
Students’ Union, Reich Youth
Leader of the Nazi Party, Leader
of the Youth in the German
Reich, Gauleiter of Vienna Recih
Governonr of Vienna, and Reich
Defence Commissioner for that
Territory
Raeder on this charge as it did as
on Dönitz, which has already
been announced, up until 30th
January, 1943, when Raeder
retired.
CRIMES AGAINST PEACE: Not guilty on Count One, guilty Twenty years’ imprisonment
Drove out of existence or took on Count Four.
over all youth groups which
competed with the Hitler Jugend.
used the Hitler Jugend to educate
German youth "in the spirit of
National Socialism," and
subjected them to an intensive
programme of Nazi propaganda.
However, it does not appear that
von Schirach was involved in the
development of Hitler's plan for
territorial expansion by means of
aggressive war, or that he
participated in the planning or
preparation of any of the wars of
aggression.
CRIMES AGAINST
HUMANITY: Austria was
occupied pursuant to a common
plan of aggression. Its occupation
is, therefore, a "crime within the
jurisdiction of the Tribunal," as
that term is used in Article 6 (c)
of the Charter. As a result,
"murder, extermination,
enslavement, deportation and
other inhumane acts" and
"persecutions on political, racial
or religious grounds" in
connection with this occupation
constitute a Crime Against
Humanity under that Article.

Sauckel Gauleiter of Thuringia,
Reichsstatthalter for Thuingia,
Thurringian Minister of the
Interior and Head of the
Thuringian State Ministry,
member of the Reichstag,
Obergruppenführer in both the
SA and the SS.
While the Jews were being
deported from Vienna, reports,
addressed to him in his official
capacity, were received in von
Schirach's office, from the office
of the Chief of the Security
Police and SD, which contained a
description of the activities of
Einsatzgruppen in exterminating
Jews. The Tribunal finds that von
Schirach, while he did not
originate the policy of deporting
Jews from Vienna, participated in
this deportation after he had
become Gauleiter of Vienna. He
knew that the best the Jews could
hope for was a miserable
existence in the ghettoes of the
East. Bulletins describing the
Jewish extermination were in his
office.
CRIMES AGAINST PEACE: Not guilty on Counts One and Death by hanging
The evidence has not satisfied the Two, guilty on Counts Three and
Tribunal that Sauckel was Four.
sufficiently connected with the
Common Plan to wage
aggressive war or sufficiently
involved in the planning or
waging of the aggressive wars to
allow the Tribunal to convict him
on Counts One or Two.
WAR CRIMES AND CRIMES
AGAINST HUMANITY:
Authority to put under uniform
control "the utilization of all
available manpower, including
that of workers recruited abroad
and of prisoners of war." He
ordered the governing authorities

Jodl Chief of the National Defence
Section in the High Command,
Chief of the Operations Staff of
the High Command of the Armed
Forces. Actual planner of the war
and responsible in large measure
for the strategy and conduct of
operations.
Von Papen Chancellor of the Reich, Vice-
Chancellor in the Hitler Cabinet,
Plenipotentiary for the Saar,
Minister to Vienna, Ambassador
to Turkey.
in the various occupied territories
to issue decrees, establishing
compulsory labour service in
Germany. The evidence shows
that Sauckel was in charge of a
programme which involved
deportation for slave labour of
more than 5,000,000 human
beings, many of them under
terrible conditions of cruelty and
suffering.
CRIMES AGAINST PEACE: In Guilty on all four counts. Death by hanging
planning the attack on
Czechoslovakia, Jodl was very
active, he was active in the
planning against Greece and
Yugoslavia.
WAR CRIMES AND CRIMES
AGAINST HUMANITY: Jodl
ordered the evacuation of all
persons in Northern Norway and
the burning of their houses so
that they could not help the
Russians.
CRIMES AGAINST PEACE: Von Papen is not guilty. Discharged by the Marshall.
Helping Hitler to form the
Coalition Cabinet and supported
his appointment as Chancellor
and consolidated Nazi control.
active in trying to strengthen the
position of the Nazi Party in
Austria for the purpose of
bringing about Anschluss. There
is no evidence that he was a party
to the plans under which the
occupation of Austria was a step
in the direction of further
aggressive action, or even that he

Seyss-Inquart State Councilor in Austria,
Austrian Minsiter of Security and
Interior, Chancellor of Austria,
general in the SS, Reich Minister
without Portfolio, Chief of Civil
Adminsitration of South Poland,
Deputy Governor General of the
Government General of Poland,
Reich Commissioner for
Occupied Netherlands.
Speer Hitler’s architect and personal
confidant. Department head in
the German Labour Front,
official in charge of capital
construction on the staff of the
Deputy to the Führer, Chief of
the Organization Todt and Reich
participated in plans to occupy
Austria by aggressive war if
necessary.
ACTIVITIES IN AUSTRIA: Not guilty on Count One, guilty Death by hanging
Obtained the passage of a law under Counts Two, Three, and
providing that Austria should Four.
become a province of Germany,
and succeeded Miklas as
President of Austria when Miklas
resigned rather than sign the law.
Instituted a programme of
confiscating Jewish property.
CRIMINAL ACTIVITIES IN
POLAND AND THE
NETHERLANDS: Supporter of
the harsh occupation policies
which were put in effect. so
administered as to exploit its
economic resources for the
benefit of Germany. He also
advocated the persecution of
Jews and was informed of the
beginning of the AB action
which involved the murder of
many Polish intellectuals. Seyss-
Inquart carried out the economic
administration of the Netherlands
without regard for rules of the
Hague Convention, which he
described as obsolete. Economic
discrimination of the Jews.
CRIMES AGAINST PEACE: Not guilty on Counts One and Twenty years’ imprisonment
Speer's activities do not amount Two, guilty on OCunts Three and
to initiating, planning, or Four.
preparing wars of aggression, or
of conspiring to that end.
WAR CRIMES AND CRIMES
 Minsiter for Armaments and
Munitions, General
Plenipotentiary for Armaments,
member of the Central Planning
Board, member of the Reichstag.
Von Neurath German Ambassador to Great
Britain, Minister of Foreign
Affairs, Reich Minsiter without
Portfolio, President of the Secret
Cabinet Council and a member of
the Reich Defence Council,
Reich Protector for Bohemia and
Morovia, Obergruppenführer in
the SS.
AGAINST HUMANITY: No
direct administrative
responsibility for the slave labour
programme, but knew that when
he made demands on Sauckel
that they would be supplied by
foreign labourers under
compulsion.
CRIMES AGAINST PEACE: Guilty on all four counts. Fifteen years’ imprisonment
Advised Hitler in connection
with the withdrawal from the
Disarmament Conference and the
League of Nations, institution of
rearmament, law for universal
military service, secret Recih
Defence Law.
CRIMINAL ACTIVITIES IN
CZECHOSLOVAKIA: The free
Press, political parties and trade
unions were abolished. All
groups which might serve as
opposition were outlawed.
Czechoslovak industry was
worked into the structure of
German war production, and
exploited for the German war
effort. Nazi anti-Semitic policies
and laws were also introduced.
Jews were barred from leading
positions in Government and
business. In mitigation it must be
remembered that von Neurath did
intervene with the Security
Police and SD for the release of
many of the Czechoslovaks who
were arrested on 1st September,
1939, and for the release of
students arrested later in the fall.
Fritzsche Radio commentator, head of
Wireless News Service, head of
the Home Press Division of the
Minsitry, Ministerial Director
head of the Radio Division of th
Propaganda Minsitry and
Plenipotentiary for the Political
Organization of the Greater
German Radio.
CRIMES AGAINST PEACE: He Not guilty Discharged by the Marshal.
was merely a conduit to the Press
of the instructions handed him by
Dietrich. His only function was
to transmit the Göbbels'
directives relayed to him by
telephone. His activities cannot
be said to be those which fall
within the definition of the
Common Plan to wage
aggressive war as already set
forth in this Judgment.

WAR CRIMES AND CRIMES

AGAINST HUMANITY: It
appears that Fritzsche sometimes
made strong statements of a
propagandistic nature in his
broadcasts. But the Tribunal is
not prepared to hold that they
were intended to incite the
German people to commit
atrocities on conquered peoples,
and he cannot be held to have
been a participant in the crimes
charged. His aim was rather to
arouse popular sentiment in
support of Hitler and the German
war effort.

Bormann Member of the Staff of the
Supreme Command of the SA,
Reichsleiter, Head of the Party
Chancellery, Secretary to the
Führer, political and
organizational head of the
Volksstrum and a general in the
SS.
CRIMES AGAINST PEACE: He
devoted much of his time to the
persecution of the Churches and
of the Jews within Germany. The
evidence does not show that
Bormann knew of Hitler's plans
to prepare, initiate or wage
aggressive wars.
WAR CRIMES AND CRIMES
AGAINST HUMANITY:
Not guilty on Count One, but is
guilty on Counts Three and Four.
Death by hanging.
Counsel has argued that
Bormann is dead and that the
Tribunal should not avail itself of
Article 12 of the Charter which
gives it the right to take
proceedings in absentia. But the
evidence of death is not
conclusive, and the Tribunal, as
previously stated, determined to
 Confiscation of works of art and
other properties in the East.
Declared that the permanent
elimination of Jews in Greater
German territory could no longer
be solved by emigration, but only
by applying “ruthless force” in
the special camps in the East.
Prominent in the slave labour
programme. Lynching of Allied
airmen.
try him in absentia. If Bormann is
not dead and is later
apprehended, the Control
Council for Germany may, under
Article 29 of the Charter,
consider any facts in mitigation,
and alter or reduce his sentence,
if deemed proper.

SOVIET MEMBER OF THE INTERNATIONAL TRIBUNAL DISSENTING:

1. Dissent from the decisions in the cases of the defendants Schacht, von
Papen, and Fritzsche. He is of the opinion that they should have been
convicted and not acquitted.

2. He also dissents from the decisions in respect of the Reich Cabinet, the
General Staff and High Command, being of the opinion that they should
have been declared to be criminal organisations.

3. He also dissents from the decision in the case of the sentence on the
defendant Hess, and is of the opinion that the sentence should have been
death, and not life imprisonment.

021 TEXACO v. LIBYA (Buenaventura)
1977 | Jean Dupuy | Individuals and Corporations
PETITIONER: Texaco Overseas Petroleum Company and California Asiatic Oil
Company
RESPONDENTS: Libyan Government
SUMMARY: A decree to nationalize all Texaco’s rights, interest and property in
Libya was promulgated by Libya. This action of the Libyan Government led Texaco
to request for arbitration, but it was refused by Libya. A sole arbitrator was
appointed by the International Court of Justice on Texaco’s request. Libya contests
that its acts were functions of their sovereignty. The issue in this case is WoN
international law applies to contracts entered into by States and private companies.
The tribunal used the agreement between the two parties to decide the case saying
that the principle of international law on contracts is applicable. The tribunal found
Libya to have breached its obligations under the Deeds of Concessions and was also
legally bound to perform in accordance with their terms.
DOCTRINE:
Though international law involves subjects of a diversified nature, legal international
capacity is not solely attributable to a state. A private contracting party, unlike a
state, has only a limited capacity and is limited to invoke only those rights that he
derives from his contract.
FACTS:
1. On September 1, 1973 and-February 11, 1974, Libya promulgated decrees
purporting to nationalize all of the rights, interests and property of Texaco
Overseas Petroleum Company and California Asiatic Oil Company in Libya
granted to them jointly under 14 Deeds of Concession.
2. The Companies objected to the decrees and claimed that such action by the
Libyan Government violated the terms and conditions of their Deeds of
Concession.
3. Exercising their rights under their Deeds of Concession, the Companies
requested arbitration and appointed an arbitrator. The Libyan Government
refused to accept arbitration and did not appoint an arbitrator.
4. Pursuant to the arbitration provision in their Deeds of Concession, the
Companies requested the President of the International Court of Justice to
appoint a sole arbitrator to hear and determine the disputes. The Libyan
Government opposed such request and filed a memorandum with the
President contending, inter alia, that the disputes were not subject to
arbitration because the nationalizations were acts of sovereignty.
5. After considering the Libyan Government's objections, the President of the
International Court of Justice, on December 18, 1974, appointed Rend-Jean
Dupuy, as the Sole Arbitrator.
6. The Sole Arbitrator first resolved the procedural aspects of the Arbitration
and then determined that the initial stage of the Arbitration should be
devoted to the question whether he had jurisdiction to hear and determine
the disputes. He invited the parties to submit memorials
ISSUE: WoN international law can be applied to contracts between States and
private companies? – YES, a deed of concession is essentially a contract and needs
to be upheld by both parties.
RULING: The Sole Arbitrator held that (a) the Deeds of Concession are binding on
the parties, (b) by adopting the measures of nationalization, the Libyan Government
breached its obligations arising under the Deeds of Concession and (c) the Libyan
Government is legally bound to perform the Deeds of Concession and to give them
their full force and effect.
RATIO:
1. Libya was found to have breached its obligations under the Deeds of
Concessions and was also legally bound to perform in accordance with their
terms.
2. Though international law involves subjects of a diversified nature, legal
international capacity is not solely attributable to a state. A private
contracting party, unlike a state, has only a limited capacity and is
limited to invoke only those rights that he derives from his contract.
3. Though the contract itself deferred to Libyan law, the court noted that
Libyan law does not preclude the application of international law, but that
the two must be combined in order to verify that Libyan law complies with
international law. Even though the right of a state to nationalize is
recognized by international law, this right in itself is not a sufficient
justification not to regard its contractual obligations
4. After reviewing the legal effect in international law of the United Nations
General Assembly resolutions concerning permanent sovereignty over
natural wealth and resources, concluded that such resolutions could not be
used by the state to violate its contractual obligations in commercial
transactions.
5. In their deed of concession, the parties agreed that the concession shall be
governed by and interpreted in accordance with the principles of law of
Libya common to the general principles of law.
6. The arbitrator concluded that the nature of the deeds of concession
agreement made it an internationalized contract.
7. The tribunal cited various jurisprudence saying that the parties have
autonomy to agree as to what law will apply to them in case of arbitration,
and that their deed of concession is essentially a contract that is binding
between the two parties
8. In respect of international law of contracts, a nationalization cannot prevail
over an internationalized contract containing stabilization clauses entered
into between a State and a foreign private company.
9. Libya wanted to transfer the oil companies’ assets and interests into State
ownership, that’s why it decreed the nationalization of Texaco. In doing so,
it breached its obligation stated in their Deed of Conscession.
10. Injured parties are entitled to restitutio in integrum, the sovereign state is
obliged to perform specifically its contractual obligations with private
foreign investors.
11. Restitution in ingretum (Latin term which means restoration to original
condition) is both under the principles of Libyan law and under the
principles of international law, the normal sanction for non-performance of
contractual obligations, thus this will apply in the case at hand.
022 NANNI v. PACE AND THE SOVEREIGN ORDER OF MALTA
(Callueng)
March 13, 1935 | N/A | Subjects of International Law Other than States
PETITIONER: Nanni and Others
RESPONDENTS: Pace and the Sovereign Order of Malta
SUMMARY: By a petition Mattia Count Pace asked the Lieutenant of the
Sovereign Order of Jerusalem and Malta for permission to endow, an
ecclesiastical benefice in favour of the family. The request was granted and by a
deed executed in Rome the Church of S. Rocco was endowed for the
maintenance of an incumbency which was to descend in the founder’s family in
the mail line according to primogeniture and when the line became extinct, was
to pass to the Order. Mattia Pace was succeeded by his son, Annibale, who sold
part of the land on which the Church stood to several persons, including the
petitioners. Annibale died in 1921. The Council of the Sovereign Order of Malta
granted investiture of the benefice to the eldest son, Guisseppe Pace, subject to
the condition that he recovered the part of the property sold by his father.
However, the Tribunal of Avezzano made a declaration that the acts by which
the benefice was endowed were null and void on the ground that State
authorization had not been obtained for the acquisition of the property under the
Law of June 5, 1980. The petititioners argued that the endowment of the
benefice was a nullity because the approval required by a Neopolitan Law of
1819 had not been obtained and because the Church was at the material date in
Neopolitan Territory. They argued also that the Order must be regarded as a
religious institution in the canonical sense, and that a gift or endowment in
favour of the Order required State authorization by the Law of June 5, 1980.
*Note: However, a higher court ordered the restitution, hence, this petition by
Nanni and Others. Issue: WoN restitution of the properties is proper. YES,
because the Sovereign Order of Malta enjoyed independence from domestic
legislation of Italy. The court dealt at some length with the legal character of the
endowment according to Italian law; it rejected, in particular, the suggestion that
the founder had created a fideicommissum. The Court also rejected the
proposition that the Order was a moral entity in Italian Law. Such a proposition
was entirely refuted by the essential juridical charater of the Sovereign Order of
Jerusalem and Malta resulting from its origins, its historical development and the
position actually held by it in the international legal community. It was inexact
to regard the Order as a religious institution in the canonical sense. The Court
pointed out that although the Order had adopted a monastic rule “such monastic
constitution had not in any way brought about a substatntial transformation of
the community… which preserved entirely unaltered its characted as a
community of hospitallers.” Just as the Order had a special legal character, so
had the endowment which, for reasons stated by the Court, did not require the
State authorization as contented by the petitioners.
DOCTRINE: As as sovereign under International Law, the Sovereign Military
Order of Malta enjoyed independence from the domestic legislation of Italy and
every other state.
FACTS:
39. By a petition dated December 4, 1862, Mattia Count Pace asked the
Lieutenant of the Sovereign Order of Jerusalem and Malta for permission to
endow, in accordance with the Statutes of the Order, an ecclesiastical
benefice in favour of the family.
1. The request was granted and by a deed executed in Rome on March 26,
1863, the Church of S. Rocco was endowed for the maintenance of an
incumbency which was to descend in the founder’s family in the mail line
according to primogeniture and when the line became extinct, was to pass to
the Order.
2. The Order was to approve of each candidtate for the incumbency according
to his moral qualifications.
3. Mattia Pace was succeeded by his son, Annibale, who sold part of the land
on which the Church stood to several persons, including the petitioners.
Annibale died in 1921. He was succeeded by five sons and by the widow
and sons of a second marriage.
4. By resolution of December 15, 1923, the Council of the Sovereign Order of
Malta granted investiture of the benefice to the eldest son, Guisseppe Pace,
subject to the condition that he recovered the part of the property sold by his
father.
5. To this end he started proceedings in the Italian Courts which culminated in
the present appeal.
6. On May 9, the Tribunal of Avezzano made a declaration that the acts by
which the benefice was endowed were null and void on the ground that
State authorization had not been obtained for the acquisition of the property
under the Law of June 5, 1980.
7. The Tribunal, therefore, rejected Pace’s request for the restitution. From this
judgement respondents’ appealed. The petititioners argued that the
endowment of the benefice was a nullity because the approval required by a
Neopolitan Law of 1819 had not been obtained and because the Church was
at the material date in Neopolitan Territory.
8. They argued also that the Order must be regarded as a religious institution
in the canonical sense, and that a gift or endowment in favour of the Order
required State authorization by the Law of June 5, 1980. Inasmuch as such
authorization had not been obtained it was contended that the Order had
acquired no title to the benefice. Consequently, it could not now claim
restitution. The history of the Order is set forth in the judgement below.
9. *Note: However, a higher court ordered the restitution, hence, this petition
by Nanni and Others.
ISSUE/s:
1. WoN restitution of the properties is proper. YES, because the Sovereign
Order of Malta enjoyed independence from domestic legislation of Italy.

RULING: Appeal is dismissed. The order for restitution is affirmed.
RATIO:
1. The court dealt at some length with the legal character of the endowment
according to Italian law; it rejected, in particular, the suggestion that the
founder had created a fideicommissum. The Court also rejected the
proposition that the Order was a moral entity in Italian Law. Such a
proposition was entirely refuted by the essential juridical charater of
the Sovereign Order of Jerusalem and Malta resulting from its origins,
its historical development and the position actually held by it in the
international legal community.
2. It was inexact to regard the Order as a religious institution in the canonical
sense. The Court pointed out that although the Order had adopted a
monastic rule “such monastic constitution had not in any way brought about
a substatntial transformation of the community… which preserved entirely
unaltered its characted as a community of hospitallers.” Just as the Order
had a special legal character, so had the endowment which, for reasons
stated by the Court, did not require the State authorization as
contented by the petitioners.
3. The Court continued as follows. The judgement of the court below
reversing of the court of first instance, has declared that the Sovereign
Order of Malta, being a juridical entity, did not require for the valid
acquisition of this property the State authorization prescribed by the
Law of 1980, because the destitination of the said property was not the
Order itself but the endowed institution, which could not be legally
assimilated to a juridical person, or to autonomous bodies. This view of the
matter does not impress us; but the solution arrived at by the Court below
justified on other grounds. These gorunds are based on the essential
juridical character of the Sovereign Order of Jerusalem and Malta and
on the position which is, in our judgement, held by it as an internation
person existing apart from the national sovereignty of the State. It is
accordingly by virtue of a customary norm of international law, received by
our internal law, exempt form the necessity of obtaining the permission of
the government for the acquisition of immovable property for its own
institutional purposes.
4. In order to dispose of the argument of the petitioners, it is necessary to trace
the historial development of the international personality of the Sovereign
Order of Jerusalem and Malta
5. Sovereignty is a complex notion, which international law, from the
external point of view, contemplates, so as to speak negatively, having
only in view independence vis-à-vis other States. For this reason it is
sufficient to require merely proof of the autonomy of the Order in its
relation to the Italian State.
a. With the recognition of the Church and of the Byzantine Empire, the
Order established, after the conquest of territory of its own, its
independence and sovereignty… The grandmaster was recognized as
Sovereign Head of Rhodes with all the attributes of such a position which
included… the right of active and passive legation together with the right
of negotiated directly with other States and of making conventions and
treaties…Such attributes of attributes and independence have not ceased,
in the case of the Order, at the present day- at least not from the point of
view in its relations with the Italia State. Nor has its personality in
international law come to an end notwithstanding the fact that as a result
of the British occupation of Malta such personality cannot be identified
with the possession of territory…
b. With regard to the second aspect of the matter it is enough to point out that
the modern theory of the subjects of internation law recognizes a number
of collective unites whose compostition is independent of the nationality
of their constituent members and whose scope transcends by virtue of their
universal character the territorial confines of any single State. It must
admitted that only sStates can contribute to the formation of international
law as an objective body of rules-States as international entities which are
territorially identifiable. This is so because the fulfillment of this latter
requirement makes them the principal objects and creator of such rules.
c. But is it impossible to deny other international collective unites a limited
capacity of acting internationally within the ambit and the actual exercise
of their own functions with the resulting international juridical personality
and capacity which is necessary and natual corollary. In according with
these doctiens, such personality was never denied to the Holy See even
before the Lateran Treay of February 11, 1929, and it is unanimously
conceded to the League of Nations, although it is neither a State, nor a
super-State, nor a Confederation of States. It is equally conceded to certain
international administrative unions.
6. As to… the formal recognition of its prerogatives and sovereignty in the
legislation now in force in various States, it is sufficient to record that Pius
IX in his Brief of 1854, approving the new Rule of the Order of Jerusalem,
confirmed its sovereign privileges and character. Leo XIII of 1879 restored
the office of Grand Master. A Papal Brief of June 12, 1988, conferred on
him the rank of Cardinal and the title of Eminence in all public ceremonies
and official acts.
7. All Catholic States, of which the most recent example was France, in her
law of 1924, recognized the Grand Master with the title of Prince with the
prerogatives and dignities attaching to it.
8. Finally, the recognition on the part of the Italian State of the
sovereignty and independence with which the Order acts in the
fulfilment of its mission, is above all, the indirect consequence of being
considered free from all repressive and restrictive laws, with regard to
the tenure of immovable property, and also with regard to the public
activity of ecceliastical orders, as well as the laws relating to charitable
bodies and juridical entities in general. Bearing also the external aspect
of the matter, there is the Convention of February 20, 1884, by which the
Italian State recognized the aims and emblems of the Order, its right of
active legations and the right to confer titles; the Royal Decree of October
7, 1923, by which, on the termination of the military occupation of Corfu,
the government entrusted to the Order a mission suited to its character as a
 universal institution; and a Decree of November 28, 1929, which
reconfirmed the title of the Sovereign Order of Jerusalem and Malta in
Court ceremonial and at public functions.
9. We must therefore conclude that, given the position which is according to
our legal system, enjoyed by the Order as an international person,
there was no necessity, for the valid acquisition of this property, to
obtain the permission of the government.
 023 Province of North Cotabato v. GRP Peace Panel (Castillo, I)
October 14, 2008 | Carpio-Morales, J. | Personality under international law
PETITIONER: The Province of North Cotabato et. al
RESPONDENTS: Government of the Republic of the Philippines Peace Panel
on Ancestral Domains
SUMMARY: Formal peace talks between the GRP and MILF were held in
Tripoli, the outcome of which was the GRP-MILF Tripoli Agreement on Peace
containing the basic principles on the following aspects of negotiation: Security,
Rehabilitation and Ancestral Domain. Talks were held between the parties in
Kuala Lumpur, eventually leading to the crafting of the draft MOA-AD in its
final form, which was set to be signed last August 5, 2008 by the GRP and
MILF. The main body of the MOA-AD is divided into four strands: Concepts
and Principles, Territory, Resources and Governance. Under Concepts and
Principles, MOA-AD mentions the “Bangsamoro Juridical Entity” (BJE) to
which it grants the authority and jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro. The Bangsamoro people are acknowledged
as having the right to self-governance, which right is said to be rooted on
ancestral territoriality. The signing of the MOA-AD between the GRP and the
MILF did not materialize because the Court issued a TRO due to petitions filed
to declare the MOA-AD unconstitutional. Issue is WoN the MOA-AD is
inconsistent with the Constitution and laws. The Court held that the MOA-AD
was inconsistent with laws and the Constitution. The MOA-AD would have
included foreign dignitaries as signatories. Representatives of other nations were
invited to witness its signing in Kuala Lumpur. These circumstances readily
lead one to surmise that the MOA-AD would have had the status of a binding
international agreement had it been signed. Assessing the MOA-AD in light of
this, it would not have amounted to a unilateral declaration on the part of the
Philippine State to the international community. The Philippine panel did not
draft the same with the clear intention of being bound thereby to the
international community as a whole or to any State, but only to the MILF.
While there were States and international organizations involved, one way or
another, in the negotiation and projected signing of the MOA-AD, they
participated merely as witnesses or, in the case of Malaysia, as facilitator. The
mere fact that in addition to the parties to the conflict, the peace settlement is
signed by representatives of states and international organizations does not
mean that the agreement is internationalized so as to create obligations in
international law.
DOCTRINE: Public statements of a state representative may be construed as a
unilateral declaration only when the following conditions are present: the
statements were clearly addressed to the international community, the state
intended to be bound to that community by its statements, and that not to give
legal effect to those statements would be detrimental to the security of
international intercourse.
FACTS:
1. In 1996, the GRP-MILF peace negotiations began.
2. It was evident that there was not going to be any smooth sailing in the GRP-
MILF peace process. In 1999-2000, the MILF attacked a number of
municipalities in Central Mindanao and took control of the town hall of
Kauswagan, Lanao del Norte. In response, then President Joseph Estrada
declared and carried out an “all-out-war” against the MILF.
3. When President Gloria Arroyo assumed office, the military offensive
against the MILF was suspended and the government sought a resumption
of the peace talks. The MILF initially responded with deep reservation, but
when President Arroyo asked the Government of Malaysia to help convince
the MILF to return to the negotiating table, the MILF eventually, decided to
meet with the GRP.
4. Formal peace talks between the parties were held in Tripoli, Libya from
June 20-22, 2001, the outcome of which was the GRP-MILF Tripoli
Agreement on Peace containing the basic principles and agenda on the
following aspects of the negotiation: Security Aspect, Rehabilitation
Aspect, and Ancestral Domain Aspect. With regard to the Ancestral
Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed “that
the same be discussed further by the Parties in their next meeting.”
5. In 2005, several exploratory talks were held between the parties in Kuala
Lumpur, eventually leading to the crafting of the draft MOA-AD in its final
form, which was set to be signed last August 5, 2008 by the GRP and the
MILF, through the Chairpersons of their respective peace negotiating
panels.
6. The MOA-AD identifies as Terms of Reference two local statutes – the
organic act for the ARMM, and the Indigenous Peoples Rights Act (IPRA),
and several international law instruments – the ILO Convention No. 169
Concerning Indigenous and Tribal Peoples in Independent Countries in
relation to the UN Declaration on the Rights of the Indigenous Peoples, and
the UN Charter, among others.
7. The main body of the MOA-AD is divided into four strands: Concepts
and Principles, Territory, Resources, and Governance.
8. CONCEPTS AND PRINCIPLES:
a. The concept of “Bangsamoro,” as defined in this strand of the
MOA-AD, includes not only “Moros” as traditionally understood,
but all indigenous peoples of Mindanao and its adjacent islands.
The MOA-AD adds that the freedom of choice of indigenous
peoples shall be respected.
b. The MOA-AD proceeds to refer to the “Bangsamoro homeland,”
the ownership of which is vested exclusively in the Bangsamoro
people by virtue of their prior rights of occupation. Both parties to
the MOA-AD acknowledge that ancestral domain does not form
 part of the public domain.
c. The Bangsamoro people are acknowledged as having the right to
self-governance, which right is said to be rooted on ancestral
territoriality.
d. The MOA-AD then mentions the “Bangsamoro Juridical Entity”
(BJE) to which it grants the authority and jurisdiction over the
Ancestral Domain and Ancestral Lands of the Bangsamoro.
9. TERRITORY
a. The Parties to the MOA-AD stipulate that the BJE shall have
jurisdiction over all natural resources within its “internal waters,”
defined as extending fifteen (15) kilometers from the coastline of
the BJE area; that the BJE shall also have “territorial waters,”
which shall stretch beyond the BJE internal waters up to the
baselines of the Republic of the Philippines (RP) south east and
south west of mainland Mindanao; and that within these territorial
waters, the BJE and the “Central Government” (used
interchangeably with RP) shall exercise joint jurisdiction, authority
and management over all natural resources.
b. The MOA-AD further provides for the sharing of minerals on the
territorial waters between the Central Government and the BJE, in
favor of the latter, through production sharing and economic
cooperation agreement.
10. RESOURCES
a. The MOA-AD states that the BJE is free to enter into any
economic cooperation and trade relations with foreign countries
and shall have the option to establish trade missions in those
countries. Such relationships and understandings, however, are not
to include aggression against the GRP. The BJE may also enter
into environmental cooperation agreements.
b. The external defense of the BJE is to remain the duty and
obligation of the Central Government.
11. GOVERNANCE
a. The MOA-AD binds the Parties to invite a multinational third-
party to observe and monitor the implementation of the
Comprehensive Compact. This compact is to embody the “details
for the effective enforcement” and “the mechanisms and modalities
for the actual implementation” of the MOA-AD. The MOA-AD
explicitly provides that the participation of the third party shall not
in any way affect the status of the relationship between the Central
Government and the BJE.
b. The MOA-AD describes the relationship of the Central
Government and the BJE as “associative,” characterized by shared
authority and responsibility.
12. The signing of the MOA-AD between the GRP and the MILF did not
materialize, however, for upon motion of petitioners, the Court issued a
Temporary Restraining Order enjoining the GRP from signing the same.
a. Province of North Cotabato and Vice-Governor Emmanuel Piñol
filed a petition seeking to compel respondents to disclose and
furnish them the complete and official copies of the MOA-AD and
to prohibit the slated signing of the MOA-AD, pending the
disclosure of the contents of the MOA-AD and the holding of a
public consultation thereon. They pray that the MOA-AD be
declared unconstitutional.
b. Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a
petition praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and executing the
MOA-AD and nullifying the MOA-AD for being unconstitutional
and illegal.
13. Respondents moved to dismiss the cases. In the succeeding exchange of
pleadings, respondents’ motion was met with vigorous opposition from
petitioners. The cases were heard on oral arguments.
ISSUE (relating to Personality Under International Law):
1. WoN the MOA-AD is inconsistent with the Constitution and laws - YES
because it would have included foreign dignitaries as signatories. The mere
fact that in addition to the parties to the conflict, the peace settlement is
signed by representatives of states and international organizations does not
mean that the agreement is internationalized so as to create obligations in
international law.
RULING: WHEREFORE, respondents' motion to dismiss is DENIED. The main
and intervening petitions are GIVEN DUE COURSE and hereby GRANTED.
RATIO:
1. Keitner and Reisman: [a]n association is formed when two states of unequal
power voluntarily establish durable links. In the basic model, one state, the
associate, delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations represent a
middle ground between integration and independence.
2. Given that there is a concept of “association” in international law, and the
MOA-AD – by its inclusion of international law instruments in its TOR–
placed itself in an international legal context, that concept of association
may be brought to bear in understanding the use of the term “associative” in
the MOA-AD.
3. No province, city, or municipality, not even the ARMM, is recognized
under our laws as having an “associative” relationship with the
national government. Indeed, the concept implies powers that go beyond
anything ever granted by the Constitution to any local or regional
government. It also implies the recognition of the associated entity as a
state. The Constitution, however, does not contemplate any state in this
jurisdiction other than the Philippine State, much less does it provide for a
 transitory status that aims to prepare any part of Philippine territory for
independence.
4. It is not merely an expanded version of the ARMM, the status of its
relationship with the national government being fundamentally different
from that of the ARMM. Indeed, BJE is a state in all but name as it meets
the criteria of a state laid down in the Montevideo Convention, namely, a
permanent population, a defined territory, a government, and a capacity to
enter into relations with other states.
5. Article II, Section 22 of the Constitution must also be amended if the
scheme envisioned in the MOA-AD is to be effected. That constitutional
provision states: “The State recognizes and promotes the rights of
indigenous cultural communities within the framework of national unity and
development.” An associative arrangement does not uphold national unity.
6. This use of the term Bangsamoro sharply contrasts with that found in the
Article X, Section 3 of the Organic Act, which, rather than lumping together
the identities of the Bangsamoro and other indigenous peoples living in
Mindanao, clearly distinguishes between Bangsamoro people and Tribal
peoples.
7. The MOA-AD would have included foreign dignitaries as signatories. In
addition, representatives of other nations were invited to witness its signing
in Kuala Lumpur. These circumstances readily lead one to surmise that the
MOA-AD would have had the status of a binding international agreement
had it been signed. An examination of the prevailing principles in
international law, however, leads to the contrary conclusion.
8. As per a ruling of the ICJ, public statements of a state representative may be
construed as a unilateral declaration only when the following conditions are
present: the statements were clearly addressed to the international
community, the state intended to be bound to that community by its
statements, and that not to give legal effect to those statements would be
detrimental to the security of international intercourse. Plainly,
unilateral declarations arise only in peculiar circumstances.
9. Assessing the MOA-AD in light of the above criteria, it would not have
amounted to a unilateral declaration on the part of the Philippine State
to the international community. The Philippine panel did not draft the
same with the clear intention of being bound thereby to the
international community as a whole or to any State, but only to the
MILF. While there were States and international organizations involved,
one way or another, in the negotiation and projected signing of the MOA-
AD, they participated merely as witnesses or, in the case of Malaysia, as
facilitator. As held in the Lomé Accord case, the mere fact that in addition
to the parties to the conflict, the peace settlement is signed by
representatives of states and international organizations does not mean that
the agreement is internationalized so as to create obligations in international
law.
10. The sovereign people may, if it so desired, go to the extent of giving up a
portion of its own
 BATCH 3
001 ISLAND OF PALMAS CASE (NETHERLANDS v. US) (Presh)
April 4, 1928 | Max Huber, J. | Sovereignty and Jurisdiction
PETITIONER: Netherlands
RESPONDENTS: United States of America
SUMMARY: The United States and the Netherlands submitted to the Permanent
Court of Arbitration the question of which State owned the Island of Palmas
(Palmas). Palmas is located within the boundary of the Philippines (territory
ceded to the United States from Spain as of the 1898 Treaty of Paris). Spain first
FACTS:
discovered Palmas in the early seventeenth century and thus claimed title to it.
However, Palmas was also considered by the Netherlands to be a part of its
territory since it began peacefully and continuously possessing the area in 1677
or before.
The US argued that it could claim sovereignty based on the fact that Spain had
ceded its title to the US. Spain could do so because Spain’s title to the island was
based on either the discovery of the island, the 1648 Treaty of Munster, or the
geographical unity with other islands (contiguity). The Netherlands argued that it
had possessed and exercised sovereignty even before 1648, and which was
reinforced by subsequent treaties. These treaties included treaties with native
states that established Dutch suzerainty over them.
The sole arbitrator was asked to determine whether the Island of Palmas (or
Miangas) in its entirety formed a part of the territory belonging to the US or of
the territory of the Netherlands. In his award, the sole arbitrator attached limited
significance to discovery as a basis of title and elaborated on the legal effect of
the peaceful and continuous display of state authority over territory.
Issue: WoN an inchoate title can prevail over a definite title founded on
continuous and peaceful display of sovereignty. – No. An inchoate title cannot
prevail. The Netherland’s title of sovereignty holds good over the inchoate title
of the US. The latter’s title cannot prevail over a definite title founded on
continuous and peaceful display of sovereignty. Further, Spain could not transfer
more rights than she herself possessed.
The arbitrator found that the establishment of Dutch authority had already
reached such a degree of development, that the importance of maintaining this
state of things ought to be considered as prevailing over a claim, possibly based
either on discovery in very distant times and unsupported by occupation or mere
geographical position. For these reasons, the arbitrator held that the Island of
Palmas (or Miangas) formed in its entirety a part of Netherlands territory.
An inchoate title cannot prevail over a definite title founded on continuous and
peaceful display of sovereignty. The continuous and peaceful display of
territorial sovereignty is as good as title. Discovery alone, without any
subsequent act, cannot suffice to prove sovereignty over the island.
There is no positive rule of international law that islands situated outside
territorial waters should belong to a state whose territory forms the nearest
continent or large island. No one contested the exercise of territorial rights by the
Netherlands from 1700 to 1906. The title of discovery, at best an inchoate title,
does not prevail over the Netherlands, claim of sovereignty.
DOCTRINE: Discovery is not enough to establish sovereignty; it is at most an
’inchoate’, or incomplete title. A state must actually exercise sovereignty over
that discovered territory. It must be accompanied by effective control.
1. Palmas (also referred to as Miangas) is an island which sits about halfway
between the islands of Mindanao in the Philippines and Nanusa in the
Netherlands Indies. It is, however, within the boundaries of the Philippines
as defined by Spain and thus ceded to the United States in 1898.
2. In 1906 an American General, Leonard Wood, visited Palmas and
discovered that the Netherlands also claimed sovereignty over the island.
Palmas was also considered by the Netherlands to be a part of its territory
since it began peacefully and continuously possessing the area in 1677 or
before.
3. An agreement was signed on January 23, 1925, between the United States
and the Netherlands to submit the question of which State owned Palmas to
the Permanent Court of Arbitration.
4. The Swiss jurist, Max Huber, was the selected arbitrator acting for the
Permanent Court of Arbitration. Huber was charged to determine "whether
the Island of Palmas (or Miangas) in its entirety forms a part of territory
belonging to the United States of America or of Netherlands territory."
5. The United States argued that it could claim sovereignty based on the fact
that Spain had ceded its title to the US. Spain could do so because Spain’s
title to the island was based on either the discovery of the island, the 1648
Treaty of Munster, or the geographical unity with other islands (contiguity).
6. US based their claim on:
a. As successor to rights of Spain; the latter basing their title on
discovery; Treaty of Munster of 1648 which Spain and
Netherlands were themselves contracting parties; The United
States, as successor to Ihe rights of Spain over the Philippines,
bases its title in the first place on discovery.
b. The existence of sovereignty thus acquired is, in the American
view, confirmed not merely by the most reliable cartographers and
authors, but also by treaty, in particular by the Treaty of Miinster,
of 1648, to which Spain and the Netherlands are themselves
Contracting Parties.
c. As, according to the same argument, nothing has occurred of a
nature, in international law, to cause the acquired title to disappear,
 this latter title was intact at the moment when, by the Treaty of
December 10th, 1898, Spain ceded the Philippines to the United
States. In these circumstances, it is, in the American view,
unnecessary to establish facts showing the actual display of
sovereignty precisely over the Island of Palmas (or Miangas).
d. The United States Government finally maintains that Palmas (or
Miangas) forms a geographical part of the Philippine group and in
virtue of the principle of contiguity belongs to the Power having
the sovereignty over the Philippines.
7. The Netherlands argued that it had possessed and exercised sovereignty
even before 1648, and which was reinforced by subsequent treaties. These
treaties included treaties with native states that established
Dutch suzerainty over them.
8. Netherlands based their claim on:
a. Acts of direct and/or indirect display of sovereignty. According to
the Netherlands Government, on the other hand, the fact of
discovery by Spain is not proved, nor yet any other form of
acquisition, and even if Spain had at any moment had a title, such
title had been lost. The principle of contiguity is contested.
b. The Netherlands Government's main argument endeavors to show
that the Netherlands, represented for this purpose in the first period
of colonization by the East India Company, have possessed and
exercised rights of sovereignty from 1677, or probably from a date
prior even to 1648, to the present day.
c. This sovereignty arose out of conventions entered into with native
princes of the Island of Sangi (the main island of the Talautse
(Sangi Isles), establishing the suzerainty of the Netherlands over
the territories of these princes, including Palmas (or Miangas). The
state of affairs thus set up is claimed to be validated by
international treaties. The facts alleged in support of the
Netherlands arguments are, in the United States Government's
view, not proved, and, even if they were proved, they would not
create a title of sovereignty, or would not concern the Island of
Palmas.
9. The sole arbitrator was asked to determine whether the Island of Palmas (or
Miangas) in its entirety formed a part of the territory belonging to the
United States of America or of the territory of the Netherlands. In his
award, the sole arbitrator attached limited significance to discovery as a
basis of title and elaborated on the legal effect of the peaceful and
continuous display of state authority over territory. The arbitrator further
considered the role of acquiescence and recognition in circumstances of
competing acts of possession, and the principle nemo dat quod non habet in
relation to treaties of cession.
10. To determine the question of title it was necessery for the arbitrator to
consider arguments about the presentation of evidence in legal proceedings
and the specific issue of maps. The arbitrator adoped a liberal approach
towards the production of evidence, but indicated that caution was required
when assessing the value of maps.
ISSUES:
1. Whether or not an inchoate title can prevail over a definite title founded on
continuous and peaceful display of sovereignty. – No. An inchoate title
cannot prevail.
1. Whether or not a title based on contiguity be made to apply. – No. The title
of contiguity, understood as a basis of territorial sovereignty, has no
foundation in international law.
RATIO:
2. The Netherland’s title of sovereignty holds good over the inchoate title of
the US. The latter’s title cannot prevail over a definite title founded on
continuous and peaceful display of sovereignty. Further, Spain could not
transfer more rights than she herself possessed.
3. The arbitrator concluded that even if it had been possible for Spain to have
ceded to the United States of America its inchoate title derived from
discovery or contiguity, the inchoate title of the Netherlands could not have
been modified by a treaty concluded by third Powers.
4. Such treaty could not have impressed the character of illegality on any act
undertaken by the Netherlands with a view to completing their inchoate
title, at least as long as no dispute on the matter had arisen.
5. The arbitrator found that the establishment of Dutch authority had already
reached such a degree of development, that the importance of maintaining
this state of things ought to be considered as prevailing over a claim,
possibly based either on discovery in very distant times and unsupported by
occupation or mere geographical position. For these reasons, the arbitrator
held that the Island of Palmas (or Miangas) formed in its entirety a part of
Netherlands territory.
6. An inchoate title cannot prevail over a definite title founded on continuous
and peaceful display of sovereignty. The continuous and peaceful display of
territorial sovereignty is as good as title. Discovery alone, without any
subsequent act, cannot suffice to prove sovereignty over the island.
7. There is no positive rule of international law that islands situated outside
territorial waters should belong to a state whose territory forms the nearest
continent or large island. No one contested the exercise of territorial rights
by the Netherlands from 1700 to 1906. The title of discovery, at best an
 inchoate title, does not prevail over the Netherlands, claim of sovereignty. strict delimitations between the different parts are not naturally obvious.
8. In letter dated April 7th, 1900, from the Secretary of State of the United
States to the Spanish Minister at Washington:
The metes and bounds defined in the treaty were not understood by either
party to limit or extend Spain's right of cession. Were any island within
those described bounds ascertained to belong in fact to Japan, China, Great
Britain or Holland, the United States could derive no valid title from its
ostensible inclusion in the Spanish cession. The compact upon which the
United States negotiators insisted was that all Spanish title to the
archipelago known as the Philippine Islands should pass to the United
States no less or more than Spain's actual holdings therein, but all. This
Government must consequently hold that the only competent and equitable
test of fact by which the title to a disputed cession in that quarter may be
determined is simply this:''Was it Spain's to give? If valid title belonged to
Spain, it passed; if Spain had no valid title, she could convey none."
9. The records of the conquest cannot come to the aid of US.
Indeed, the reports on record which concern the discovery of the Island of
Palmas state only that an island was "seen", which island, according to
the geographical data, is probably identical with that in dispute. No mention
is made of landing or of contact with the natives. And in any case no signs
of taking possession or of administration by Spain have been shown or even
alleged to exist until the very recent date to which the reports of Captain
Malone and M. Alvarez, of 1919 contained in the United States
Memorandum, relate.
10. A map affords only an indication and that a very indirect one and, except
when annexed to a legal instrument, has not the value of such an instrument,
involving recognition or abandonment of rights.
11. The title of contiguity, understood as a basis of territorial sovereignty,
has no foundation in international law.
12. The principle of contiguity, in regard to islands, may not be out of place
when it is a question of allotting them to one State rather than another,
either by agreement between the Parties, or by a decision not necessarily
based on law; but as a rule establishing ipso jure the presumption of
sovereignty in favour of a particular State, this principle would be in
conflict with what has been said as to territorial sovereignty and as to the
necessary relation between the right to exclude other States from a region
and the duty to display therein the activities of the state.
13. Nor is this principle of contiguity admissible as a legal method of deciding
questions of territorial sovereignty; for it is wholly lacking in precision and
would in its application lead to arbitrary results. This would be especially
true in a case such as that of the island in question, which is not relatively
close to one single continent, but forms part of a large archipelago in which
 002 CLIPPERTON ISLAND CASE: FRANCE v. MEXICO(CASTRO)
January 28, 1931 | | Arbitral award on the sovereignty over Clipperton island
PETITIONER: Arbitration between France and Mexico
SUMMARY: Lt. Victor Le Coat de Kerweguen of the French Navy, commissioner
of the French Government, while cruising about one-half mile off Cliipperton,
proclaimed and declared that the sovereignty of the said island beginning from that
date belonged to his majesty, Emperor Napoleon III and to his heirs and successors.
As the expedition left the island, no mark of sovereignty was then left. Thereafter
until the end of 1887, no positive and apparent act of sovereignty can be recalled
either on the part of France or any other powers. The island remained without
population, at least stable and no administration that was organized. Later on, The
French navy took a close surveillance of the island and it discovered that there are
three persons who resided on the island and Mexico was claiming that it is has the
superior right to exercise sovereignty over the said island. Both countries agreed to
submit the said case to arbitration. The Court ruled in favor of France by saying that
Mexico failed to substantiate its claim that it succeeded the rights of the Spanish
explorers in Clipperton island. Furthermore, France by occupying an uninhabited
land was able to make its possession and occupation complete.
DOCTRINE: Thus, if a terrirtory by virtue of the fact that it was completely
uninhabited and from the first moment when the occupying state makes its
appearance, at the absolute and undisputed disposition, from that moment the taking
and possession must be considered accomplished and occupation completed.
FACTS:
1. It was found that in the first place on November 17, 1858, Lt. Victor Le
Coat de Kerweguen of the French Navy, commissioner of the French
Government, while cruising about one-half mile off Cliipperton, drew up,
on board the commercial vessel L’Amiral an act by which, conformably to
the orders which had been given to him by the Minister of marine.
2. He proclaimed and declared that the sovereignty of the said island
beginning from that date belonged to his majesty, Emperor Napoleon III
and to his heirs and successors
3. During the cruise, careful and minute geographical notes were made. The
crew left the island without leaving any sign of sovereignty.
4. Lt. de Kerweguen officially notified the accomplishment of his mission to
the consulate of France at Honolulu wchi made a like communication to the
Government of Hawaii.
5. The same consulate had published in English in the journal the Polynesian
the declaration by which French sovereignty over clipperton had already
been proclaimed
6. Thereafter until the end of 1887, no positive and apparent act of sovereignty
can be recalled either on the part of France or any other powers. The island
remaind without population, at least stble and no administration that was
organized.
7. A concession for the exploitation of the guano beds however was exisiting.
It was approved by the Emperor on April 1858 in favor of a certain Mr.
Lockart which had given rise to the expedition of Lt. de Kerqeguen
8. Towards the end of 1897, the Chief of the Naval division of the pacific
ocean which was charged with the examination of the matter, that three
persons were found in the island collecting gano for the account of the
Oceanic Phospate Co of San Francisco and that they had on the appearance
of the French vessel, raised the American Flag
9. Explanations were demanded on this subject from the US, which responded
that it had not granted any concession to the said company and did not
intend to claim any right of sovereignty over Clipperton
10. About a month after this act of surveillance had been accomplished by the
French Navy, and while the diplomatic action with the US was in progress,
Mexico, ignoring the occupation claimed by France and considering that
Clipperton wa territory belonging to her for a long time, sent to the place a
gun-boat, La Democrata, which action was caused by the report, afterwards
acknowledge to be inaccurate, that England had designs upon the island.
11. A detachment of officers and marines landed from the said ship and again
found tthree persons who resided on the island at the time of the preceding
arrival of the French ship
12. It made them lower the American flag and hoist the Mexican flag in its
place
13. Of the three individuals mentioned, two consented to leave the island, and
the third declared his wish to remain and in fact remained there until an
unknown date
14. France having learned of the Mexican expedition reinded that power of its
rights over Clipperton. From the very long diplomatic discussion took place
which lasted until the date when by agreement the two governments decided
to refer to the arbitration the solution of the difference relative to the
sovereignty over the island.
ISSUE/s:
1. Who is the country which can legitimately exercise its sovereignty over the
Clipperton island – France, because
RULING: The sovereignty of Clipperton belongs to France dating November
17, 1858.
RATIO:
1. According to Mexico, clipperton island had been given the name of the
famous English Adventurer and used it as a plae of refuge was none other
than the passion island called also as the Medano or Meedanos island.
2. That the said island had already been discovered by the Spanish Navy
and by virtue of law fixed by the bull of Alexander VII and afterwards
to Mexico as the successor of the state of the Spanish state
3. But according to the records, it has not been proven that the island by
whatever name had been actually discovered by Spanish navigators
4. That they might have known it before the logbooks on board the French
vessels dated 1711 and had identified and described it, is as conjecture more
or less probable but from which one cannot draw any decisive argument.
5. However, even admissting that the discovery had been made by Spanish
Subjects, it would be necessary to establish the contention of Mexico to
prove that Spain not only had the right as a state to incorporate the island in
its possessions but also had effectively exercised the right, but that has
not been demonstrated at all.
6. Mexico produces a geographical map printed from the archives where the
island figures as comprised within the political and military governments of
Spain in North America. But the official character of this map cannot be
affirmed because it is not certain that it was drawn by order and under
care of the state or because the manuscript of the memorandum which one
reads there that it was used by the Royal tribunal of the consulate of Mexico
does not confer official character upon it.
7. Moreover, the proof of a historic right of Mexico is not supported by
any manifestation of her sovereignty over the island, a sovereignty
never exercised until the expedition of 1897
8. Consequently, there is a ground to admit that, in November 1858,
France proclaimed her sovereignty over clipperton, that the island was
in the legal situation of territorium nullius -susceptible of occupation.
9. First of all, France made known in a clear and precise manner her
intention to consider the island as her territory. Also, France took
effective possession of the island and maintained that without such a
taking possession of an effective character, occupation must be
considered as null and void.
10. It is beyond doubt that by immemorial usage having the force of law
besides the animus occupandi, the actual and not the nominal taking of
possession is a necessary condition of occupation. This taking of
possession consists in the act or series of acts by which the occupying
state reduces to its possession the territory in question and takes steps
to exercise exclusive authority there.
11. There may also be cases where it is unnecessary to have recourse to this
method. Thus, if a terrirtory by virtue of the fact that it was completely
uninhabited and from the first moment when the occupying state
makes its appearance, at the absolute and undisputed disposition, from
that moment the taking and possession must be considered
accomplished and occupation completed.
12. Hence, there is no reason to suppose that France has subsequently lost
her right by the fact that she has not exercised her authority in a
positive manner. It does not imply forfeiture of an acquisition already
definitely perfected.
 003 Minquiers and Ecrehos Case (France v. UK), ICJ Reports
1953, (CELAJE)
PARTIES: United Kingdom and France
SUMMARY: The Minquiers and Ecrehos are two groups of islets situated
between the British island of Jersey and the coast of France. Under a Special
Agreement between France and the United Kingdom, the Court was asked to
determine which of the Parties had produced the more convincing proof of title
to these groups of islets.
In its Judgment, the Court considered that what was of decisive importance was
direct evidence of possession and the actual exercise of sovereignty. After
considering this evidence, the Court arrived at the conclusion that the
sovereignty over the Minquiers and Ecrehos belonged to the United Kingdom.
With regard to the Ecrehos in particular, the Court held the view that the King
of England exercised his justice and levied his rights in these islets. The Court
attached probative value to various acts relating to the exercise by Jersey (a
region part of England) of jurisdiction and local administration and to
legislation, such as criminal proceedings concerning the Ecrehos, the levying of
taxes on habitable houses or huts built in the islets since 1889, the registration in
Jersey of contracts dealing with real estate on the Ecrehos. With regard to the
Minquiers, the Court noted that in 1615, 1616, 1617 and 1692, the Manorial
court of the fief of Noirmont in Jersey exercised its jurisdiction in the case of
wrecks found at the Minquiers, because of the territorial character of that
jurisdiction. Other evidence concerning the end of the eighteenth century, the
nineteenth and the twentieth centuries pertained to, the erection on the islets of
habitable houses or huts by persons from Jersey who paid property taxes on that
account, the registration in Jersey of contracts of sale relating to real property in
the Minquiers.
DOCTRINE: The exercise of ordinary local administration in respect to a
territory for a long period of time as well as the exercise of State functions are
important indications of which country has sovereignty over the particular
territory.
FACTS:
40. The Minquiers and Echeros case was submitted to the Court by virtue of a
Special Agreement concluded between the United Kingdom and France on
December 29th. 1950. In a unanimous decision, the Court found that
sovereignty over the islets and rocks of the Echeros and the Miniquers
groups, in so far as these islets and rocks are capable of appropriation,
belongs to the United Kingdom.
41. In its Judgment, the Court began by defining the task laid before it by the
Parties. The two groups of islets in question lie between the British Channel
Island of Jersey and the coast of France.
42. The Ecrehos lie 3.9 sea miles from the former and 6.6 sea miles from the
latter. The Miniquers group lie 9.8 sea miles from Jersey and 16.2 sea miles
from the French main- land and 8 miles away from the Chailsey islands
which belong to France.
43. Under the Special Agreement, the Court was asked to determine which of
the Parties had produced the more convincing proof of title to these groups
and any possibility of applying to them the status of terra nullius was set
aside.
44. In addition, the question of burden of proof was reserved: each Party
therefore had to prove its alleged title and the facts upon which it relied.
Finally, when the Special Agreement refers to islets and rocks, in so far as
they are capable of appropriation, it must be considered that these terms
relate to islets and rocks physically capable of appropriation. The Court did
not have to determine in detail the facts relating to the particular units of the
two groups.
ISSUES:
1. The ICJ Court is requested to determine whether the sovereignty over the
islets and rocks (in so far as they are capable of appropriation) of the
Minquiers and Ecrehos groups respectively belongs to the United Kingdom
or the French Republic.
RULING:
1. Minquiers and Ecrehos belongs to the United Kingdom
HELD:
1. The Court then examined the titles invoked by both Parties. The United
Kingdom Government derives its title from the conquest of England by
"William Duke of Normandy in 1066. The union thus established between
England and the Duchy of Normandy, including the Channel Islands, lasted
until 1204, when Philip Augustus of France conquered continental
Normandy. But, his attempts to occupy also the islands having been
unsuccessful, the United Kingdom submitted the view that all of the
Channel Islands, including the Ecrehos and the Miniquers, remained united
with England and that this situation of fact was placed on a legal basis by
subsequent treaties concluded between the two countries.
2. The French Government contended for its part that, after 1204, the King of
France held the Miniquers and the Ecrehos, together with some other
islands close to the Continent, and referred to the same mediaeval treaties as
those invoked by the United Kingdom.
3. The Court found that there are, however, other ancient documents which
 provide some indications as to the possession of the islets in dispute. The territorial character of that jurisdiction.
United Kingdom relied on them to show that the Channel Islands were
11. Other evidence concerning the end of the eighteenth century, the nineteenth
considered as an entity and, since the more important islands were held by
and the twentieth centuries concerned inquests on corpses; found at the
England, this country also possessed the groups in dispute. For the Court,
Minquiers, the erection on the islets of habitable houses or huts by persons
there appears to be a strong presumption in favour of this view, without it
from Jersey who paid property taxes on that account, the registration in
being possible, however, to draw any definitive conclusion as to the
Jersey of contracts of sale relating to real property in the Minquiers.
sovereignty over the groups, since this question must ultimately depend on
the evidence which relates directly to possession. 12. These various facts show that Jersey authorities have, in several ways,
exercised ordinary local administration in respect of the Minquiers during
4. For its part, the French Government saw presumption in favour of French
along period of time and that, for a considerable part of the nineteenth
sovereignty in the feudal link between the King of France, overlord of the
century and the twentieth century, British authorities have exercised State
whole of Normandy, and the King of England, his vassal for these
functions in respect of this group.
territories.
13. The French Government alleged certain facts. It con- tended that the
5. But the United Kingdom Government contends that the feudal title of the
Miniquers were a dependency of the Chausey islands, granted by the Duke
French Kings in respect of Normandy was only nominal. It denies that the
of Normandy to the Abbey of Mont-Saint-Michel in 1022. In 1784 a
Channel Islands were received in fee of the King of France by the Duke of
correspondence between French authorities concerned an application for a
Normandy, and contests the validity, and even the existence, of the
concession in respect of the Miniquers made by a French national. The
judgment of 1202.
Court held the view that this correspondence did not disclose anything
6. Without solving these historical controversies, the Court considered it which could support the present French claim to sovereignty, but that it
sufficient to state that the legal effects attached to, the dismemberment of revealed certain fears of creating difficulties with the English Crown. The
the Duchy of Normandy in 1204, when Normandy was occupied by the French Government further contended that, since 1861, it has assumed the
French, have been superseded by the numerous events which occurred in sole charge of the lighting and buoying of the Miniquers, without having
the following centuries. In the opinion of the Court, what is of decisive encountered any objection from the United Kingdom.
importance is not indirect presumptions based on matters in the Middle
14. The Court said that the buoys placed by the French Government at the
Ages, but the evidence which relates directly to the possession of the
Miniquers were placed outside the reefs of the groups and purported to aid
groups.
navigation to and from French ports and protect shipping against the
7. The Court then examined the situation of each group. With regard to the dangerous reefs of the Minquiers. The French Government also relied on
Ecrehos in particular, and on the basis of various mediaeval documents, it various official visits to the Miniquers, in continental Normandy.
held the view that the King of England exercised his justice and levied his
15. The Court did not find that the facts invoked by the French Government
rights in these islets. Those documents also show that there was at that time
were sufficient to show that France has a valid title to the Miniquers. As to
a close relationship between the Ecrehos and Jersey.
the above-mentioned facts from the nineteenth and twentieth centuries in
8. From the beginning of the nineteenth century, the connection became closer particular, such acts could hardly be considered as sufficient evidence of the
again, because of the growing importance of oyster fishery. The Court intention of that Government to act as sovereign over the islets. Nor were
attached probative value to various acts relating to the exercise by Jersey of those acts of such a character that they could be considered as involving a
jurisdiction and local administration and to legislation, such as criminal manifestation of State authority in respect of the islets.
proceedings concerning the Ecrehos, the levying of taxes on habitable
16. In such circumstances, and having regard to the view expressed above with
houses or huts built in the islets since 1889, the registration in Jersey of
regard to the evidence produced by the United Kingdom Government, the
contracts dealing with real estate on the Ecrehos.
Court was of opinion that the sovereignty over the Minquiers belongs to the
9. Appraising the relative strength of the opposing claims in the light of United Kingdom.
these facts, the Court found that sovereignty over the Ecrehos belonged
to the United Kingdom.
10. With regard to the Minquiers, the Court noted that in 1615, 1616, 1617 and
1692, the Manorial court of the fief of Noirmont in Jersey exercised its
jurisdiction in the case of wrecks found at the Minquiers, because of the
 004 LEGAL STATUS OF EASTERN GREENLAND CASE (DENMARK v.
NORWAY) (Coscolluela c/o Siapno)
1933 |President Adatci| Acquisition and Transfer of Territorial Sovereignty
PETITIONER: DENMARK
RESPONDENTS: NORWAY
SUMMARY: A suit was instituted before the Permanent Court of International
Justice (PCIJ) by Royal Danish Government against the Royal Norwegian Gov’t
over the legal status of certain territories in Eastern Greenland. The Norwegian
Minister for Foreign Affairs to the Danish Minister at Oslo, the Norwegian
Government stated in its Royal Resolution (July 10th, 1931) that the occupation
in the Eastern Greenland is officially confirmed and is placed under
Norwegian sovereignty. The Danish Government informed the Norwegian
Government that it had submitted the question on the same day to the Permanent
Court of International Justice. The Danish Gov’t contends that (1) Denmark had
enjoyed and had peacefully and continuously exercised an uncontested sovereignty
over Greenland for a long time (up till 1921, no Power disputed the Danish claim to
sovereignty) (2) Norway had recognized Danish sovereignty over the whole
Greenland (through conventions and treaties) and (3) that the Norway is bound by
the Ihlen Declaration (Fact#16 but this basically talks about how the Norwegian
Minister bound Norway by saying that the Danish sovereignty over the whole of
Greenland would meet with no difficulties on the part of Norway). Norway
counters that Denmark possessed no sovereignty over the area which Norway
occupied because the word "Greenland" is not used in the geographical sense, but
means only the colonies or the colonized area on the West coast and that at the time
of the occupation the area was terra nullius (nobody’s island). Issue is WoN
Eastern Greenland belongs to Norway? The Court ruled that Eastern Greenland
rightfully belongs to Denmark. Denmark had enjoyed and had peacefully and
continuously exercised an uncontested sovereignty over Greenland for a long
time. The date at which such Danish sovereignty must have existed in order to
render the Norwegian occupation invalid is the date at which the occupation took
place, viz., July 10th, 1931. According to the Palmas Case the basic requirements
for the establishment of such a title are (a) There must be the intention and will to
act as sovereign, and some actual exercise or display of such authority (although
very little actual exercise of authority was necessary, especially in thinly populated
or unsettled areas) and (b)There must be no competing or stronger claim to
sovereignty. Court mentioned that claim to sovereignty based not upon some
particular act or title such as a treaty of cession but merely upon continued display
of authority, involves these two elements. One of the peculiar features of the
present case is that up to 1931 there was no claim by any Power other than
Denmark to the sovereignty over Greenland. After the founding of Hans Egede's
colonies in 1721, there is in part at least of Greenland a manifestation and exercise
of sovereign rights. Consequently, both the elements necessary to establish a valid
title to sovereignty - the intention and the exercise - were present. The importance
of these treaties is that they show a willingness on the part of the States with
which Denmark has contracted to admit her right to exclude Greenland. To
some of these treaties, Norway has herself been a Party, and these must be dealt
with later because they are relied on by Denmark as constituting binding
admissions by Norway that Greenland is subject to Danish sovereignty. Denmark
possesses sovereignty over Greenland as a whole and to the extent that these
treaties constitute evidence of recognition of her sovereignty over Greenland in
general Denmark is entitled to rely upon them. Norway is now estopped from
claiming Greenland because until 1931 there was no claim by ANY STATE other
than Denmark to Greenland, Norwegian government as undertakings which
recognized DANISH over all GREENLAND as evidenced by hey entered Bilateral
and multilateral agreements (Norway and Denmark have entered agreements
wherein Greenland was described as Denmark’s colony) and the existence of the
Ihlen Declaration (Norway debarred herself or under obligation to refrain from
contesting a historic Danish sovereignty)
DOCTRINE: The basic requirements for the establishment of sovereignty are (a)
There must be the intention and will to act as sovereign, and some actual exercise
or display of such authority (although very little actual exercise of authority was
necessary, especially in thinly populated or unsettled areas) and (b)There must be
no competing or stronger claim to sovereignty. Claim to sovereignty is not based
upon some particular act or title such as a treaty of cession but merely upon
continued display of authority, involves these two elements.
FACTS:
3. A suit was instituted before the Permanent Court of International Justice
(PCIJ) by Royal Danish Government against the Royal Norwegian
Government over the legal status of certain territories in Eastern Greenland.
4. Cause of Action for the dispute arose when Norwegian Government
proclaimed that it proceeded to occupy certain territories of Eastern Greenland
which as contented by Denmark are subject to sovereignty of Crown of
Denmark.
17. It is established that Greenland was discovered around 900 A.D. It was
colonized 100 years later. Eric the Red of the Norwegian origin was the best
know colonist. At that time two settlements called Eystribygd and Vestribygd
existed as an independent State for some time; however, latter they became
tributary to the kingdom of Norway in the 13th century. These settlements
disappeared before 1500.
18. From 1814 to 1380 the Kingdoms of Norway and Denmark were united by the
same Crown. Despite disappearance of the early settlements the sovereignty of
the Crown was not doubted.
19. Treaty of Lund of September 27th, 1697 where Sweden recognized the rights
of ancient rights and claims of the King of Denmark over Greenland is an apt
example.
20. The State of Denmark had monopoly over the trade activities in Greenland.
This resulted in establishing colonies, factories or stations along the West coast
latter efforts to reach the East coast were not successful.
21. Norway perceived Greenland as the colonized part of the West coast whereas
Denmark viewed Greenland as encompassing whole island of Greenland.
22. After a war that broke out between Denmark and Sweden and her allies,
Denmark was made to sign the Peace Treaty of Kiel in 1814 according to
which the Kingdom of Norway, excluding Greenland, the Faeroe Isles and
Iceland, was seceded to Sweden.
23. In the 19th century Greenland witnessed lot of Danish expeditions. The Danish
Minister issued a decree specifying the limits of the territorial waters around
Greenland. Denmark promulgated a law concerning the administration of
Greenland in and colonies on the West coast were divided into Northern and
Southern districts. US as a quid pro quo to Denmark's cession of West Indian
Islands declared that it would not object to the Danish Government extending
their political and economic interests to the whole of Greenland.
24. The Danish government in bilateral or multilateral commercial conventions
relating to economic questions had excluded Greenland from the operation of
such conventions to secure the insertion of a stipulation.
25. On July 10th, 1931 by a Norwegian Royal Resolution the King of Norway
declared the occupation of the country in Eastern Greenland between
Carlsberg Fjord on the south and Bessel Fjord on the north.At the beginning of
the present century, opinion again began to be manifested in favour of the
more effective occupation of the uncolonized areas in Greenland, in order that
the risk of foreign settlement might be obviated.
26. 1915 – Denmark began to seek explicit recognition of her potential claims to
the EASTERN COAST OF GREENLAND
5. 1st – United States – context of CESSION OF THE DANISH ANTILLES
6. 2nd – Norway – context of Norwegian claims to Spitzbergen at Vesailles Peace
Conference
7. 3rd – United Kingdom, France, Italy and Japan
8. 4th – Sweden and Norway
8. At a Peace Conference for the purpose of considering the claims that may be
put forward by different countries to Spitzbergen, and that the Danish
Government would be prepared to renew before this Committee the unofficial
assurance already given to the Norwegian Government that the Danihs Gov’t
would raise no objection to Norway's claims upon that Spitzbergen.
9. The Danish Government felt confident that the extension of its political and
economic interests to the whole of Greenland would not encounter any
difficulties on the part of the Norwegian Government.
10. The Danish Minister saw M. Ihlen, the Norwegian Minister for Foreign
Affairs, who merely replied on this occasion "that the question would be
considered".
11. M. Ihlen made a statement to the Danish Minister to the effect "that the
Norwegian Government would not make any difficulties in the settlement of
this question" (i.e. the question raised on July 14th by the Danish
Government). “The plans of the Royal [Danish] Government respecting
Danish sovereignty over the whole of Greenland .... would meet with no
difficulties on the part of Norway". It is this statement by the Norwegian
Minister for Foreign Affairs which is described in this judgment as the "Ihlen
declaration".
10. The Danish Government approached the Governments in London, Paris,
Rome, Tokyo, and Sweden approved of Denmark's sovereignty over the whole
of Greenland. Each of those Governments replied in terms which satisfied the
Danish Government EXCEPT FOR NORWAY unless it received an
undertaking from the Danish Government that the liberty of hunting and
fishing on the East coast
11. The Danish Government instructed its Minister that no further application was
to be made and said that it would rest content with the verbal undertaking
given by M. Ihlen.
12. CONVENTION: the Danish contention that Denmark possessed full and entire
sovereignty over the whole of Greenland and that Norway had recognized that
sovereignty, and the Norwegian contention that all the parts of Greenland
which had not been occupied in such a manner as to bring them effectively
under the administration of the Danish Government were in the condition of
terra nullius (nobody’s island), and that if they ceased to be terrce nullius they
must pass under Norwegian sovereignty.
13. The Norwegian Minister for Foreign Affairs to the Danish Minister at Oslo,
the Norwegian Government stated that, "having regard to the legal position of
Norway in the proceedings before the Court", it "had felt obliged to proceed, in
virtue of a Royal Resolution” The Royal Resolution (July 10th, 1931)
basically said that the occupation in the Eastern Greenland is officially
confirmed and is placed under Norwegian sovereignty.
14. DANISH APPLICATION: The Danish Government informed the Norwegian
Government that it had submitted the question on the same day to the
Permanent Court of International JusticeThe Danish Gov’t contends:
4. Denmark had enjoyed and had peacefully and continuously exercised an
uncontested sovereignty over Greenland for a long time
- The first is that the sovereignty which Denmark now enjoys over Greenland
has existed for a long time, has been continuously and peacefully exercised
and, until the present dispute, has not been contested by any Power.
5. Norway had recognized DANISH sovereignty over the whole Greenland
- The second proposition is that Norway has by treaty or otherwise herself
recognized Danish sovereignty over Greenland as a whole and therefore
cannot now dispute it.
6. Norway was estopped by QUID PRO QUO, a promise given by the
Norwegian foreign minister to desert occupying any territory in Greenland.
- The Norwegian Minister for Foreign Affairs, speaking on behalf of his
Government, gave to the diplomatic representative of the Danish
Government at Christiania debarred Norway from proceeding to any
occupation of territory in Greenland, even if she had not by other acts
recognized an existing Danish sovereignty there.
15. NORWEGIAN SUBMISSIONS: Denmark possessed no sovereignty over the
area which Norway occupied and that at the time of the occupation the area
 was terra nullius. Her contention is that the word "Greenland" is not used in
the geographical sense, but means only the colonies or the colonized area
on the West coast.
ISSUE/s:
WoN Greenland belongs to Denmark – YES, Denmark has exercised sovereignty
continuously and peacefully and Norway is bound by the reply given on its
behalf by its Minister of Foreign Affairs.
RULING: The Court (1) decides that the declaration of occupation promulgated by
the Norwegian Government on July 10th, 1931, and any steps taken in this respect
by that Government, constitute a violation of the existing legal situation and are
accordingly unlawful and invalid; (2) rejects the opposing submissions of the
Norwegian Government; (3) declares that there is no need to deviate from the
general rule laid down in Article 64 of the Statute that each Party will bear its own
costs. 
 this respect, the Treaty of Kiel did not affect or extend the King's rights over
RATIO:
Denmark had enjoyed and had peacefully and continuously exercised an
uncontested sovereignty over Greenland for a long time
18. The date at which such Danish sovereignty must have existed in order to render
the Norwegian occupation invalid is the date at which the occupation took
place, viz., July 10th, 1931.
19. PALMAS CASE: the basic requirements for the establishment of such a title
are (a) There must be the intention and will to act as sovereign, and some
actual exercise or display of such authority (although very little actual exercise
of authority was necessary, especially in thinly populated or unsettled areas)
and (b)There must be no competing or stronger claim to sovereignty.
20. Court mentioned that claim to sovereignty based not upon some particular act
or title such as a treaty of cession but merely upon continued display of
authority, involves these two elements.
21. One of the peculiar features of the present case is that up to 1931 there was no
claim by any Power other than Denmark to the sovereignty over Greenland.
Indeed, up till 1921, no Power disputed the Danish claim to sovereignty.
22. After the founding of Hans Egede's colonies in 1721, there is in part at least of
Greenland a manifestation and exercise of sovereign rights. Consequently, both
the elements necessary to establish a valid title to sovereignty - the intention
and the exercise - were present, but the question arises as to how far the
operation of these elements extended.
23. The founding of the colonies was accompanied by the grant of a monopoly of
the trade, and before long legislation was found to be necessary to protect and
enforce the monopoly.
24. Norway has argued that in the legislative and administrative acts of the XYIIIth
century on which Denmark relies as proof of the exercise of her sovereignty,
the word "Greenland" is not used in the geographical sense, but means only the
colonies or the colonized area on the West coast. 
 Counsel for Norway adhere to the contention that the word "Greenland" is used
a. This is a point as to which the burden of proof lies on Norway. Norway has not
succeeded in establishing her contention. It is not sufficient for her to show that
in many of these legislative and administrative acts action was only to be taken
in the colonies.
25. The conclusion to which the Court is led is that, bearing in mind the absence of
any claim to sovereignty by another Power, and the Arctic and inaccessible
character of the uncolonized parts of the country, the King of Denmark and
Norway displayed during the period from the founding of the colonies by Hans
Egede in 1721 up to 1814 his authority to an extent sufficient to give his
country a valid claim to sovereignty, and that his rights over Greenland were
not limited to the colonized area.
26. Up to the date of the Treaty of Kiel of 1814, the rights which the King
possessed over Greenland were enjoyed by him as King of Norway. The result
of the Treaty was that what had been a Norwegian possession remained with
the King of Denmark and became for the future a Danish possession. Except in
Greenland.
27. In order to establish the Danish contention that Denmark has exercised in fact
sovereignty over all Greenland for a long time, Counsel for Denmark have laid
stress on the long series of conventions - mostly commercial in character -
which have been concluded by Denmark and in which, with the concurrence of
the other contracting Party, a stipulation has been inserted to the effect that the
convention shall not apply to Greenland.
28. In the case of multilateral treaties, the stipulation usually takes the form of a
Danish reserve at the time of signature. In date, these conventions cover the
period from 1782 onwards.
29. Article 6 of the Treaty of 1826 with the United States of America : "The
present Convention shall not apply to the Northern possessions of His Majesty
the King of Denmark, that is to say Iceland, the Færö Islands and
Greenland...."
30. The importance of these treaties is that they show a willingness on the part
of the States with which Denmark has contracted to admit her right to
exclude Greenland. To some of these treaties, Norway has herself been a
Party, and these must be dealt with later because they are relied on by Denmark
as constituting binding admissions by Norway that Greenland is subject to
Danish sovereignty.
31. For the purpose of the present argument, the importance of these conventions,
with whatever States they have been concluded, is due to the support which
they lend to the Danish argument that Denmark possesses sovereignty over
Greenland as a whole. 

32. It has been contended on behalf of Norway that no importance should be
attached to these conventions because, when they were concluded, the Parties
had no such question in mind as whether Danish sovereignty was limited or not
to the colonies, and whether in consequence "Greenland" meant more than the
colonized area. Both as to these conventions, and also as to the Treaty of Kiel,
 in the sense of the area comprised within the colonies. Norway is bound by the "Ihlen declaration" given on its behalf by its Minister of
33. To the extent that these treaties constitute evidence of recognition of her Foreign Affairs
sovereignty over Greenland in general, Denmark is entitled to rely upon 6. The Ihlen declaration - even if not constituting a definitive recognition of
them. 

 Danish sovereignty - did not constitute an engagement obliging Norway to
34. These treaties may also be regarded as demonstrating sufficiently Denmark's refrain from occupying any part of Greenland. 

will and intention to exercise sovereignty over Greenland. There remains the 7. The Court considers it beyond all dispute that a reply of this nature given by
question whether during this period, i.e. 1814 to 1915, she exercised authority the Minister for Foreign Affairs on behalf of his Government in response to a
in the uncolonized area sufficiently to give her a valid claim to sovereignty request by the diplomatic representative of a foreign Power, in regard to a
therein. question falling within his province, is binding upon the country to which the
Norway had recognized Danish sovereignty over the whole Greenland Minister belongs.
8. In the early part of this judgment, it has been recalled that when the King of 8. There can be no doubt that the words "everything in connection with the Treaty
Denmark was obliged to renounce, in favour of the King of Sweden, his of Kiel in general" cover also Article 4 of the Treaty which mentions Greenland
kingdom of Norway, Article 4 of the Treaty of Kiel of January 14th, 1814, and that they are incompatible with the Norwegian argument to the effect that
excepted from that renunciation Greenland, the Faroes and Iceland. 

 the Convention of September 1st, 1819, only relates to the finance.
9. The Court holds that, in consequence of the various undertakings resulting from 9. Thus not only Article 6 of the Treaty of Kiel was to be regarded as completely
the separation of Norway and Denmark and culminating in Article 9 of the settled, but "Everything in connection with the Treaty of Kiel in general and
Convention of September 1st, 1819, Norway has recognized Danish with its sixth article in particular"
sovereignty over the whole of Greenland and consequently cannot proceed to 10. Even if the period from 1921 to July 10th, 1931, is taken by itself and without
the occupation of any part thereof. reference to the preceding periods, the conclusion reached by the Court is that
10. "Everything in connection with the Treaty of Kiel in general and with its sixth during this time Denmark regarded herself as possessing sovereignty over all
article in particular" was regarded to be completely settled and as has already Greenland and displayed and exercised her sovereign rights to an extent
been explained, "Greenland" in Article 4 of the Treaty of Kiel means the whole sufficient to constitute a valid title to sovereignty. When considered in
of Greenland. conjunction with the facts of the preceding periods, the case in favour of
11. A second series of undertakings by Norway, recognizing Danish sovereignty Denmark is confirmed and strengthened.
over Greenland, is afforded by various bilateral agreements concluded by
Norway with Denmark, and by various multilateral agreements to which both
Denmark and Norway were contracting Parties, in which Greenland has been
described as a Danish colony or as forming part of Denmark or in which
Denmark has been allowed to exclude Greenland from the operation of the
agreement. 

12. The first of these agreements is the Commercial Treaty concluded between
Denmark and the United Kingdoms of Sweden and Norway on November 2nd,
1826, a Treaty for which provision was made in Article 23 of the Treaty of
Kiel. Article 5 of that Treaty reads as follows: "The respective colonies of the
two High Contracting Parties, including in the case of Denmark, Greenland,
Iceland, and the Faroe Isles, shall be specially excepted from the provisions of
the four preceding articles, which shall only be applicable to the Kingdom of
Denmark, the Duchies of Slesvig, Holstein and Lauenbourg of the one part, and
to the Kingdoms of Sweden and Norway, of the other part." 

13. It has already been said that when the Treaty of 1826 speaks of "Greenland",
this can only denote Greenland in the sense, for example, of Article 4 of the
Treaty of Kiel, i.e. the whole of Greenland. The same applies to the Danish-
Norwegian Agreements, referred to above, which
14. followed the Treaty of 1826.
 005 Western Sahara Case, Advisory Opinion, ICJ Reports (Cruz)
October 16, 1975 | ICJ Reports | Discovery and Occupation
SUMMARY: The Secretary General of the United Nations sent a letter to the
President of the Court for an advisory opinion on Resolution 3292 on the status
of Western Sahara’s status as a territory at the time of its colonization by Spain
and its legal ties with Kingdom of Morocco and the Mauritanian entitity. The
Court’s opinion states that Westerns Sahara (Rio de Oro and Sakiet El Hamra) at
the time of Colonization by Spain was not a territory belonging to no one. The
information furnished to the Court shows that at the time of colonization
Western Sahara was inhabited by peoples which, if nomadic, were socially and
politically organized into tribes and under chiefs competent to represent them.
The State practice of the relevant period indicates that territories inhabited by
tribes or peoples having a social and political organization were not regarded as
terra nullius. It shows that in the case of such territories the acquisition of
sovereignty was not generally considered as effected unilaterally through
“occupation” of terra nullius by original title but through agreements concluded
with local rulers. On occasion, it is true, the word “occupation” was used in a
non-technical sense denoting simply acquisition of sovereignty; but that did not
signify that the acquisition of sovereignty through such agreements with
authorities of the country was regarded as an “occupation” of a “terra nullius”
in the proper sense of these terms. On the contrary, such agreements with local
rulers, whether or not considered as an actual “cession” of the territory, were
regarded as derivative roots of title, and not original titles obtained by
occupation of terra nullius.
DOCTRINE: In law, "occupation" was a means of peaceably acquiring
sovereignty over territory otherwise than by cession or succession; it was a
cardinal condition of a valid "occupation" that the territory should be terra
nullius. The acquisition of sovereignty over territories inhabited by peoples
which, if nomadic, were socially and politically organized in tribes and
under chiefs competent to represent them were effected through agreements
concluded with local rulers and not through “occupation” of terra nullius by
original title.
For the question of was there a legal tie between Western Sahara nad Morocco
FACTS:
40. The Secretary General of the United Nations sent a letter to the President of
the Court for an advisory opinion on Resolution 3292 on the status of
Western Sahara’s status as a territory at the time of its colnization by Spain.
41. By letter, the Registrar gave notice to the request. The President, ordered
the States Mermbers of the United Nations to submit written statements:
Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, France,
Guatemala, Mauritania, Morocco, Nicaragua, Fanama and Spain.
42. Mauritania and Morocco each asked to be authorized to choose a judge ad
hoc to sit in the proceedings.
a. By an Order, the Court found that Morocco was entitled under
Articles 31 and 68 of the Statute and Article 89 of the Rules of
Court to choose a person to sit as judge ad hoc, but that, in the case
of Mauritania, the conditions for the application of those Articles
had not been satisfied.
b. At the same time the Court stated that those conclusions in no way
prejudged its views with regard to the questions referred to it or
any other question which might fall to be decided, including those
of its competence to give an advisory opinion and the propriety of
exercising that competence.
43. Spain put forward objections which in its view would render the giving of
an opinion incompatible with the Court's judicial character.
a. It referred to the fact that it had not given its consent to the Court's
adjudicating upon the questions submitted. It maintained
i. that the subject of the questions was substantially
identical to that of a dispute concerning Western Sahara
which Morocco, in September 1974, had invited it to
submit jointly to the Court, a proposal which it had
refused: the advisory jurisdiction was therefore being
used to circumvent the principle that the Court has no
jurisdiction to settle a dispute without the consent of the
parties;
ii. that the case involved a dispute concerning the attribution
of territorial sovereignty over Western Sahara and that the
consent of States was always necessary for the
adjudication of such disputes;
iii. that in the circumstances of the case the Court could not
fulfil the requirements of good administration of justice
with regard to the determination of the facts.
b. Spain suggested that the questions submitted to the Court were
academic and devoid of purpose or practical effect, in that the
United Nations had already settled the method to be followed for
the decolonization of Western Sahara, namely a consultation of the
indigenous population by means of a referendum to be conducted
by Spain under United Nations auspices.
44. As evidence of its display of sovereignty in Western Sahara, Morocco
invoked alleged acts of internal display of Moroccan authority, consisting
principally of evidence said to show the allegiance of Saharan caids to the
Sultan, including dahirs and other documents concerning the appointment
of caids, the alleged imposition of Koranic and other taxes, and acts of
military resistance to foreign penetration of the territory.
a. Morocco also relied on certain international acts said to constitute
recognition by other States of its sovereignty over the whole or
part of Western Sahara, including
i. certain treaties concluded with Spain, the United States
and Great Britain and Spain between 1767 and 1861,
 provisions of which dealt inter alia with the safety of
persons shipwrecked on the coast of Wad Noun or its
vicinity,
ii. certain bilateral treaties of the late nineteenth and early
twentieth centuries whereby Great Britain, Spain, France
and Germany were said to have recognized that Moroccan
sovereignty extended as far south as Cape Bojador or the
boundary of the Rio de Oro.
For the question of was there a legal tie between Western Sahara and the
Mauritanian entitity
45. The term "Mauritanian entity" was first employed during the session of the
General Assembly in 1974 which denotes the cultural, geographical and
social entity within which the Islamic Republic of Mauritania was to be
created.
a. According to Mauritania, that entity, at the relevant period, was the
Bilad Shinguitti or Shinguitti country, a distinct human unit,
characterized by a common language, way of life, religion and
system of laws, featuring two types of political authority: emirates
and tribal groups.
b. Expressly recognizing that these emirates and tribes did not
constitute a State, Mauritania suggested that the concepts of
"nation" and of "people" would be the most appropriate to explain
the position of the Shinguitti people at the time of colonization. At
that period, according to Mauritania, the Mauritanian entity
extended from the Senegal river to the Wad Sakiet El Hamra. The
territory at present under Spanish administration and the present
territory of the Islamic Republic of Mauritania thus together
constituted indissociable parts of a single entity and had legal ties
with one another.
ISSUE/s:
16. WoN Westerns Sahara (Rio de Oro and Sakiet El Hamra) at the time of
Colonization by Spain a territory belonging to no one (terra nullius) – NO,
Western Sahara was inhabited by peoples which, if nomadic, were socially
and politically organized in tribes and under chiefs competent to
represent them
a. If no, WoN there were legal ties between this territory and the
Kingdom of Morocco and the Mauritanian entitity? – YES with
Morocco, legal tie of allegiance; Yes with Mauritanian entitity but
not on territorial sovereignty the nomadic peoples of the Shinguitti
country possessed rights, including some rights relating to the
lands through which they migrated. These
rights constituted legal ties between Western Sahara and the
Mauritanian entity.
17. WoN the International Court of Justice has competence to give Advisory
Opinion on questions submitted by the General Assembly – YES, the
questions submitted were legal in character
18. WoN the giving of an opinion is incompatible with the Court's judicial
character - No
RATIO:
1. Westerns Sahara (Rio de Oro and Sakiet El Hamra) at the time of
Colonization by Spain was not a territory belonging to no one (terra
nullius)
a. For the purposes of the Advisory Opinion, the "time of
colonization by Spain" may be considered as the period beginning
in 1884, when Spain proclaimed its protectorate over the Rio de
Oro.
b. Thus, the legal concept of terra nullius must be interpreted in
reference to the law in force at that period.
c. In law, "occupation" was a means of peaceably acquiring
sovereignty over territory otherwise than by cession or succession;
it was a cardinal condition of a valid "occupation" that the territory
should be terra nullius.
d. According to the State practice of that period, territories
inhabited by tribes or peoples having a social and political
organization were not regarded as terrae nullius: in their case
sovereignty was not generally considered as effected through
occupation, but through agreements concluded with local
rulers.
e. The information furnished to the Court shows:
i. that at the time of colonization Western Sahara was
inhabited by peoples which, if nomadic, were socially
and politically organized in tribes and under chiefs
competent to represent them;
ii. that Spain did not proceed upon the basis that it was
establishing its sovereignty over terrae nullius: thus in his
Order of 26 December 1884 the King of Spain proclaimed
that he was taking the Rio de Oro under his protection on
the basis of agreements entered into with the chiefs of
local tribes.
75. There were legal ties between Western Sahara and the Kingdom of
Morocco and the Mauritanian entitity
a. The meaning of the words "legal ties" has to be sought in the
object and purpose of resolution 3292 (XXIX) of the United
Nations General Assembly. It must be understood as referring to
such legal ties as may affect the policy to be followed in the
decolonization of Western Sahara.
b. The Court cannot accept the view that the ties in question could be
limited to ties established directly with the territory and without
reference to the people who may be found in it.
c. At the time of its colonization, the territory had a sparse population
that for the most part consisted of nomadic tribes the members of
 which traversed the desert on more or less regular routes,
sometimes reaching as far as southern Morocco or regions of
present-day Mauritania Algeria or other States. These tribes were
of the Islamic faith.
d. Morocco presented its claim to legal ties with Western Sahara as a
claim to ties of sovereignty on the ground of an alleged
immemorial possession of the territory and an uninterrupted
exercise of authority.
i. In the view of the Court, however, the evidence directly
relating to effective display of authority in Western
Sahara at the time of its colonization by Spain and in the
period immediately preceding is what is important.
ii. Morocco requests that the Court should take account of
the special structure of the Moroccan State.
1. That State was founded on the common religious
bond of Islam and on the allegiance of various
tribes to the Sultan, through their caids or sheiks,
rather than on the notion of territory.
2. It consisted partly of what was called the Bled
Makhzen, areas actually subject to the Sultan,
and partly of what was called the Bled Siba,
areas in which the tribes were not submissive to
him; at the relevant period, the areas
immediately to the north of Western Sahara lay
within the Bled Siba.
e. Having considered this evidence and the observations of the other
States which took part in the proceedings, the Court finds that
neither the internal nor the international acts relied upon by
Morocco indicate the existence at the relevant period of either the
existence or the international recognition of legal ties of territorial
sovereignty between Western Sahara and the Moroccan State.
f. Even taking account of the specific structure of that State, they do
not show that Morocco displayed any effective and exclusive State
activity in Western Sahara.
g. They do, however, provide indications that a legal tie of allegiance
existed at the relevant period between the Sultan and some, but
only some, of the nomadic peoples of the territory, through Tekna
caids of the Noun region, and they show that the Sultan displayed,
and was recognized by other States to possess, some authority or
influence with respect to those tribes.
h. The information before the Court discloses that, while there existed
among them many ties of a racial, linguistic, religious, cultural and
economic nature, the emirates and many of the tribes in the entity
were independent in relation to one another; they had no common
institutions or organs.
i. The Mauritanian entity therefore did not have the character of a
personality or corporate entity distinct from the several emirates or
tribes which comprised it.
j. The Court concludes that at the time of colonization by Spain there
did not exist between the territory of Western Sahara and the
Mauritanian entity any tie of sovereignty, or of allegiance of tribes,
or of simple inclusion in the same legal entity.
k. Nevertheless, the General Assembly does not appear to have so
framed Question with regard to the legal ties as to confine the
question exclusively to those which imply territorial sovereignty,
which would be to disregard the possible relevance of other legal
ties to the decolonization process.
l. The Court considers that, in the relevant period, the nomadic
peoples of the Shinguitti country possessed rights, including some
rights relating to the lands through which they migrated.
i. These rights constituted legal ties between Western
Sahara and the Mauritanian entity. They were ties which
knew no frontier between the territories and were vital to
the very maintenance of life in the region.
m. Morocco and Mauritania both laid stress on the overlapping
character of the respective legal ties which they claimed Western
Sahara to have had with them at the time of colonization.
i. Although their views appeared to have evolved
considerably in that respect, the two States both stated at
the end of the proceedings that there was a north
appertaining to Morocco and a south appertaining to
Mauritania without any geographical void in between, but
with some overlapping as a result of the intersection of
nomadic routes.
ii. The Court confines itself to noting that this geographical
overlapping indicates the difficulty of disentangling the
various relationships existing in the Western Sahara
region at the time of colonization.
76. The International Court of Justice has competence to give Advisory
Opinion on questions submitted by the General Assembly
a. Under Article 65, par.1 of the Statute of the International Court of
Justice
“ The Court may give an advisory opinion on any legal question at
the request of whatever body may be authorized by or in
accordance with the Chartger of the UN to make such request”
b. The present request was made pursuant to Art 96 par 1 of the UN
charter which provides that the General Assembly may seek the
Court’s advisory opinion on any legal question.
c. the two questions submitted are framed in terms of law and raise
problems of international law. They are in principle questions of a
legal character, even if they also embody questions of fact, and
 even if they do not call upon the Court to pronounce on existing
rights and obligations. The Court is accordingly competent to
entertain the request.
77. the giving of an opinion is not incompatible with the Court's judicial
character
a. The Court considers:
i. that the General Assembly, while noting that a legal
controversy over the status of Western Sahara had arisen
during its discussions, did not have the object of bringing
before the Court a dispute or legal controversy with a
view to its subsequent peaceful settlement, but sought an
advisory opinion which would be of assistance in the
exercise of its functions concerning the decolonization of
the territory, hence the legal position of Spain could not
be compromised by the Court's answers to the questions
submitted;
ii. that those questions do not call upon the Court to
adjudicate on existing territorial rights;
iii. that it has been placed in possession of sufficient
information and evidence.
b. The Court examines the resolutions adopted by the General
Assembly on the subject, from resolution 1514 (XV) of 14
December 1960, the Declaration on the Granting of Independence
to Colonial Countries and Peoples, to resolution 3292 (XXIX) on
Western Sahara, embodying the request for advisory opinion.
i. It concludes that the decolonization process envisaged by
the General Assembly is one which will respect the right
of the population of Western Sahara to determine their
future political status by their own freely expressed will.
ii. This right to self-determination, which is not affected by
the request for advisory opinion and constitutes a basic
assumption of the questions put to the Court, leaves the
General Assembly a measure of discretion with respect to
the forms and procedures by which it is to be realized.
The Advisory Opinion will thus furnish the Assembly
with elements of a legal character relevant to that further
discussion of the problem to which resolution 3292
(XXIX) alludes.
 006 The Chamizal Case (Dim)
June 15, 1911 | International Boundary Commission| Rio Grande (Water Rapids)
PETITIONER: United States of Mexico
RESPONDENT: United States of America
SUMMARY: The Mexican-American War had just ended, with both governments
entering into the Treaty of Guadalupe and the Convention of 1884 to establish the
boundaries between the two states. The border was established along the Rio Grande
river, between El Paso, Texas, and Ciudad Juarez, Chihuahua. Before the Convention
of 1884, there were instances of gradual erosion and deposit of alluvion that formed a
new piece of land called the Chamizal tract, which was occupied by Mexico. Decades
later, there was also a flood that changed a few changes in the land. There was a
boundary dispute that was brought to the International Boundary Commission. The
issue was WoN the Chamizal tract was supposed to belong to the US as a result of the
changes in the course of the river. The commissioners ruled in favor of the Mexican
Government and stated that the creation of the Chamizal tract was a result of slow and
gradual erosion and slow alluvion.
DOCTRINE: The International Boundary Commission confirmed two international
laws regarding the Rio Grande and its shifting course. First, if the river shifted
gradually and slowly, then the international boundary shifted with the river. Second, if
the river changed course quickly, like in a flood for example, then the international
boundary would not change.
FACTS:
27. After the Mexican-American War ended with the Treaty of Guadalupe
Hidalgo (1848) and the Convention of 1884, where the border between
the US and Mexico was established along the Rio Grande river, which
was between El Paso, Texas (US), and Ciudad Juarez, Chihuahua (Mexico).
The changes in the course of the Rio Grande river caused the international
border disputes between the two states.
28. The changes in the river water caused it to move southward into Mexican
territory. This piece of land became known as the Chamizal Tract (because
of the presence of chamizo, which was a sort of saltbush that covered the
land). This caused El Paso City to gain more territory and the Mexican city
of Juarez to loss the corresponding territory. The US counters that the intent
of the treaty says that gradual accretion would cause the boundary to follow
the new course of the river.
29. The treaty had provisions following international law when it came to
border changes. First, if the river shifted gradually and slowly, like in
erosion, then the international boundary shifted with the river. (alluvium in
our civil code) Second, if the river changed course quickly, like in a flood
for example, then the international boundary would not change. (avulsion in
our civil code).
30. Mexico contends that these changes have not changed the boundary because
they were formed before the entry into force of the Treaty of Guadalupe
Hidalgo, that the treaty was not retroactive, and that even assuming that the
treaty was applicable, the changes were not a result of slow and gradual
erosion and deposit of alluvion.
ISSUES:
(3) WoN the Chamizal tract belonged to the US as a result of the boundary
changes? - NO. The boundary line did not change as the changes in the
river were a result of gradual erosion and deposit of alluvion. A portion
however, that came about because of a great flood was given to the US.
RULING: WHEREFORE, Two out of three commissioners awarded the
Chamizal Tract to the Mexican Government.
RATIO:
12. The commissioners agreed that the treaty was not retroactive and that the
treaty did not establish a fixed and invariable boundary line.
13. The commissioners agree that the changes in the river which formed the
Chamizal tract were caused by slow and gradual erosion within the meaning
of the Treaty. There was no evidence of an abandoned river bed because of
avulsion and of a new river bed opening up to become the new boundary.
14. However, since a massive flood changed the course of the Rio Grande River
in 1863, the part that was north of the Chamizal tract was awarded to the
United States.
15. The commissioners strictly interpreted the provisions of the Convention of
1884 that both the accretion and the erosion must be slow and gradual, in
coming up with the decision in favor of the Mexican Government, and
awarding part of the disputed land to the US because of a flood.
Note: After this award was given to Mexico, tensions between the two states with
regard to the land dispute continued until the 1960's where they came up with the
Chamizal Settlement of 1963.
 007 UNITED KINGDOM v. NORWAY (Eleazar)
December 18, 1951 | ICJ | Acquisition and Transfer of Territorial Sovereignty
PETITIONERS: United Kingdom of Great Britain and Northern Ireland
RESPONDENTS: Kingdom of Norway
FACTS:
SUMMARY: Since 1911 British trawlers had been seized and condemned for
violating measures taken by the Norwegian Government specifying the limits
within which fishing was prohibited to foreigners. In 1935, a Decree was
adopted establishing the lines of delimitation of the Norwegian fisheries zone.
On 28 September 1949, the Government of the United Kingdom filed with the
Registry of the ICJ an application instituting proceedings against Norway. The
subject of the proceedings was the validity, under international law, of the lines
of delimitation of the Norwegian fisheries zone as set forth in a Decree of 12
July 1935. The question at issue was whether this decree, which laid down a
method for drawing the baselines from which the width of the Norwegian
territorial waters had to be calculated, was valid international law. This question
was rendered particularly delicate by the intricacies of the Norwegian coastal
zone, with its many bays, islands, islets and reefs. The United Kingdom
contended, inter alia, that some of the baselines fixed by the decree did not
accord with the general direction of the coast and were not drawn in a reasonable
manner. In its Judgment of 18 December 1951, the Court found that, contrary to
the submissions of the United Kingdom, neither the method nor the actual
baselines stipulated by the 1935 Decree were contrary to international law.
Norway puts forward the 1935 decree as the application of a traditional system
of delimitation in accordance with international law. In its view, international
law takes into account the diversity of facts and concedes that delimitation must
be adapted to the special conditions obtaining in different reguons. The
Judgment notes that a Norwegian Decree of 1812, as well as a number of
subsequent texts (Decrees, Reports, diplomatic correspondence) show that the
method of straight lines, imposed by geography, has been established in the
Norwegian system and consolidated by a constant and sufficiently long practice.
The application of this system encountered no opposition from other States.
Even the United Kingdom did not contest it for many years: it was only in 1933
that the United Kingdom made a formal and definite protest. And yet, concerned
with maritime questions, it could not have been ignorant of the reiterated
manifestations of Norwegian practice, which was so well- known.
DOCTRINE: Delimitation of seaareas has always an international aspect since
it interests States other than the coastal State; consequently, it cannot be
dependent merely upon the will of the latter. Certain basic considerations
inherent in the nature of the territorial sea bring to light the following criteria
which can provide guidance to the Courts: since the territorial sea is closely
dependent upon the land domain, the baseline must not depart to any appreciable
extent from the general direction of the coast; certain waters are particularly
closely linked to the land formations which divide and surround them (an idea
that should be liberally applied in view of the configuration of the coast. It may
be necessary to have regard to certain economic interests peculiar to a region
when their reality and importance are clearly evidenced by a long usage.
12. The coastal zone concerned in the dispute is of a distinctive configuration.
British fishermen had made incursions in the waters near the Norwegian
coast.
13. As a result of complaints from the King of Norway, they abstained from
doing so at the beginning of the 17th century and for 300 years. But in
1906, British vessels appeared again.
14. These were trawlers equipped with improved and powerful gear. The local
population was perturbed and measures were taken by Norway with a view
to specifying the limits within which fishing was prohibited to foreigners.
15. Incidents occurred, and became more frequent, and on 1935 the Norwegian
Government delimited the Norwegian fisheries zone by Decree.
Negotiations had been entered into by the two Governments; they were
pursued after the Decree was enacted, but without success.
16. A considerable number of British trawlers were arrested and condemned in
1948 and 1949.
17. It was then that the United Kingdom Government instituted proceedings
before the Court.
18. Arguments of UK:
a. That Norway could draw straight lines only across bays;
b. That straight lines, regardless of their length, could be used subject
to the following conditions set out in point 5 of its Conclusion;
"Norway is entitled to claim as Norwegian internal waters, on
historic grounds, all fjords and sunds which fall within the
conception of a bay as defined in international law ... whether the
proper closing line of the indentation is more or less than 10-
nautical miles long". (Basing itself by analogy on the so-called rule
of 10 miles relating to bays, the United Kingdom maintained that
the length of the baselines drawn across the waters lying between
the various formations of the skjaergaard must not exceed 10
miles.);
c. That certain lines did not follow the general direction of the coast,
or did not follow it sufficiently closely, or that they did not respect
the natural connection existing between certain sea areas and the
land formations separating or surrounding them; and
d. That the Norwegian system of delimitation was unknown to the
United Kingdom and that the system therefore lacked the essential
notoriety to provide the basis of an historic title enforceable upon,
or opposable to, the United Kingdom.
19. Argument of Norway: That the baselines had to be drawn in such a way as
to respect the general direction of the coast and in a reasonable manner.

ISSUE/s
W/N the lines laid down by the 1935 Decree for the purpose of delimiting the
Norwegian fisheries zone have been drawn in accordance with international law.
(Lines are called baselines, from which the belt of the territorial sea is reckoned)
YES because the general toleration of the international community on the practices
and delimitations of Norway therefore shows that the Norwegian system was not
regarded as contrary to international law
RULING: THE COURT, rejecting all submissions to the contrary, Finds by ten
votes to two, that the method employed for the delimitation of the fisheries zone by
the Royal Norwegian Decree of July 1935, is not contrary to international law; and
by eight votes to four, that the base-lines fixed by the said Decree in application of
this method are not contrary to international law. Done in French and English, the
French text being authoritative, at the Peace Palace, The Hague, this eighteenth day
of December, one thousand nine hundred and fifty-one, in three copies, one of which
will be placed in the archives of the Court and the others transmitted to the
Government of the United Kingdom of Great Bntain and Northern Ireland and to the
Government of the Kingdom of Nonvay, respectively.
RATIO:
1. The Judgment first specifies the subject of the dispute. The breadth of the
belt of Norwegian territorial sea is not an issue: the four mile limit claimed
by Norway has been acknowledged by the United Kingdom. The United
Kingdom denies that they have been drawn in accordance with international
law, and it relies on principles which it regards as applicable to the present
case. Norway, whilst not denying that rules do exist, contends that those put
forward by the UK are not applicable; and it further relies on its own system
of delimitation which it asserts to be in every respect in conformity with
international law.
2. The first principle put forward by UK is that the baseline must be low water
mark. This indeed is the criterion generally adopted in the practice of states.
The parties agree as to this criterion but differ as to its application. The
geographic realities which inevitably lead to the conclusion that the relevant
line is not that of the mainland also lead to the rejection of the requirement
that the baseline should always follow low-water mark. Drawn between
appropriate points on this low-water mark, departing from the physical
coastline to a reasonable extent, the base line can only be determined by
means of geometric construction. Straight lines will be drawn across well -
defined bays, minor curvatures of the coastline, and sea areas separating
islands, islets, and reefs, thus giving a simpler form to the belt of territorial
waters. The drawing of such lines does not constitute an exception to the
rule: it is this rugged coast, viewed as a whole that calls for the method of
straight baselines.
3. Must there be a maximum length for straight lines, as contended by the UK,
except in the case of the closing line of internal waters to which the UK
concedes that Norway has historic title? Although certain States have
adopted the 10-mile rule for closing lines of bays, others have adopted a
different length: consequently the 10- mile rule has not acquired the
authority of a general rule of international law, neither in respect of bays nor
the water separating the islands of the archipelago. Furthermore, the 10-mile
rule is inapplicable as against Norway inasmuch as she has opposed its
application to the Norwegian coast.
4. Thus the Court, confining itself to the Conclusions of the UK, finds that the
1935 delimitation does not violate international law. But the delimitation of
seaareas has always an international aspect since it interests States other
than the coastal State; consequently, it cannot be dependent merely upon the
will of the latter. Certain basic considerations inherent in the nature of the
territorial sea bring to light the following criteria which can provide
guidance to the Courts: since the territorial sea is closely dependent upon
the land domain, the baseline must not depart to any appreciable extent from
the general direction of the coast; certain waters are particularly closely
linked to the land formations which divide and surround them (an idea that
should be liberally applied in view of the configuration of the coast. It may
be necessary to have regard to certain economic interests peculiar to a
region when their reality and importance are clearly evidenced by a long
usage.
5. Norway puts forward the 1935 decree as the application of a traditional
system of delimitation in accordance with international law. In its view,
international law takes into account the diversity of facts and concedes that
delimitation must be adapted to the special conditions obtaining in different
reguons. The Judgment notes that a Norwegian Decree of 1812, as well as a
number of subsequent texts (Decrees, Reports, diplomatic correspondence)
show that the method of straight lines, imposed by geography, has been
established in the Norwegian system and consolidated by a constant and
sufficiently long practice. The application of this system encountered no
opposition from other States. Even the United Kingdom did not contest it
for many years: it was only in 1933 that the United Kingdom made a formal
and definite protest. And yet, concerned with maritime questions, it could
not have been ignorant of the reiterated manifestations of Norwegian
practice, which was so well- known.
6. The general toleration of the international community therefore shows that
the Norwegian system was not regarded as contrary to international law.
7. But, although the 1935 Decree did indeed conform to this method (one of
the findings of the Court), the United Kingdom contends that certain of the
base- lines adopted by the Decree are without justification from the point of
view of the criteria stated above: it is contended that they do not respect the
general direction of the coast and have not been drawn in a reasonable
manner.
8. Having examined the sectors thus criticised, the Judgment concludes that
the lines drawn are justified. In one case-that of Svaerholthavet- what is
involved is indeed a basin having the character of a bay although it is
divided into two large fjords. In another case-that of Lopphavet- the
 divergence between the base-line and the land formations is not such that it
is a distortion of the general direction of the Norwegian coast; furthermore,
the Norwegian Government has relied upon an historic title clearly referable
to the waters of Lop- phavet: the exclusive privilege to fish arid hunt whales
granted in the 17th century to a Norwegian subject, from which it follows
that these waters were regarded as falling exclusively within Norwegiail
sovereignty. In a third case -- that of the Vestfjord-the difference is
negligible: the settle- ment of such questions, which are local in character
and of secondary importance, should be left to the coastal State.
9. It is also of common ground between the Parties that on the question of the
existence of a Norwegian system, the Royal Decree of February and, 1812,
is of cardinal importance. This Decree is in the following terms: "We wish
to lay down as a rule that, in all cases when there is a question of
determining the limit of Our territorial sovereignty at sea, that limit shall be
reckoned at the distance of one ordinary sea league from the island or islet
farthest from the mainland, not covered by the sea; of which all proper
authorities shall be informed by rescnpt."
10. This text does not clearly indicate how the base-lines between the islands or
islets farthest from the mainland were to be drawn. In particular, it does not
Say in express terms that the lines must take the form of straight lines drawn
between these points. But it may be noted that it was in this way that the
1812 Decree was invariably construed in Norway in the course of the 19th
and 20th centuries. The Decree of October 16th, 1869, relating to the
delimitation of Sunnmore, and the Statement of Reasons for this Decree, are
particularly revealing as to the traditional Norwegian conception and the
Norwegian construction of the Decree of 1812. It was by reference to the
1812 Decree, and specifically relying upon "the conception" adopted by that
Decree, that the Ministry of the Interior justified the drawing of a straight
line 26 miles in length between the two outermost points of the
"skjaergaard". The Decree of September gth, 1889, relating to the
delimitation of Romsdal and Nordmore, applied the same method, drawing
four straight lines, respectively 14.7 miles, 7 miles, 23.6 miles and 11.6
miles in length
11. The 1812 Decree was similarly construed by the Territorial Waters
Boundary Commission (Report of February zgth, 1912, pp. 48-49), as it was
in the Memorandum of January 3rd, 1929, sent by the Norwegian
Government to the Secretary-General of the League of Nations, in which it
was said : "The direction laid down by this Decree should be interpreted in
the sense that the starting-point for calculating the breadth of the territorial
waters should be a line drawn dong the 'skjargaard' between the furthest
rocks and, where there is no 'skjærgaard', between theextreme points." The
judgment delivered by the Norwegian Supreme Court in r934, in the St. Just
case, provided final authority for this interpretation. This conception
accords with the geographical characteristics of the Norwegian coast and is
not contrary to the principles of international law.
12. The Court is bound to hold that the Norwegian authorities applied their
system of delimitation consistently and uninterruptedly from 1869 until the
time when the dispute arose. From the standpoint of international law, it is
now necessary to consider whether the application of the Norwegian system
encountered any opposition from foreign States. Norway has been in a
position to argue without any contradiction that neither the promulgation of
her delimitation Decrees in 1869 and in 1889, nor their application, gave
rise to any opposition on the part of foreign States. Since, moreover, these
Decrees constitute, as has been shown above, the application of a well-
defined and uniform system, it is indeed this system itself which would reap
the benefit of general toleration, the basis of an historical consolidation
which would make it enforceable as against au States. The general
toleration of foreign States with regard to the Norwegian practice is an
unchallenged fact. For a period of more than sixty years the United
Kingdom Government itself in no way contested it. One cannot indeed
consider as raising objections the discussions to which the Lord Roberts
incident gave rise in 1911, for the controversy which arose in this
connection related to two questions, that of the four-mile lirnit, and that of
Nonvegian sovereignty over the Varangerfjord, both of which were
unconnected with the position of base-lines. It would appear that it was only
in its Memorandum of July 27th, 1933, that the United Kingdom made a
formal and definite protest on this point.
13. The United Kingdom Government has argued that the Norwegian system of
delimitation was not known to it and that the system therefore lacked the
notoriety essential to provide the basis of a historic title enforceable against
it. The Court is unable to accept this view. As a coastal State on the North
Sea, greatly interested in the fisheries in this area, as a maritime Power
traditionally concerned with the law of the sea and concerned particularly to
defend the freedom of the seas, the United Kingdom could not have been
ignorant of the Decree of 1869 which had at once provoked a request for
explanations by the French Government. Nor, knowing of it, could it have
been under any misapprehension as to the significance of its terms, which
clearly described it as constituting the application of a system. The same
observation applies a fortiori to the Decree of 1889 relating to the
delimitation of Romsdal and Nordmore which must have appeared to the
United Kingdom as a reiterated manifestation of the Norwegian practice.
14. The question now arises whether the Decree of July 12th, 1935, which in its
preamble is expressed to be an application of this method, conforms to it in
its drawing of the base-lines, or whether, at certain points, it departs from
this method to any considerable extent. The schedule appended to the
Decree of July 12th, 1935, indicates the fixed points between which the
straight base-lines are drawn. The Court notes that these lines were the
result of a careful study initiated by the Norwegian authorities as far back as
1911. The base-lines recommended by the Foreign Affairs Committee of
the Storting for the delimitation of the fisheries zone and adopted and made
public for the first time by the Decree of July 12th, 1935, are the same as
those which the so-called Territorial Waters Boundary Commissions,
 successively appointed on June 29th, 1911, and July 12th, 1912, had drawn
in 1912 for Finnmark and in 1913 for Nordland and Troms. The Court
further notes that the 1911 and 1912 Commissions advocated these lines
and in so doing constantly referred, as the 1935 Decree itself did, to the
traditional system of delimitation adopted by earlier acts and more
particularly by the Decrees of 1812, 1869 and 1889.
15. In the absence of convincing evidence to the contrary, the Court cannot
readily find that the lines adopted in these circumstances by the 1935
Decree are not in accordance with the traditional Norwegian system.
However, a purely factual difference arose between the Parties concerning
the three following base-points : No. 21 (VesterfaUet i Gaasan), No. 27
(Tokkebaaen) and No. 39 (Nordboen). This difference is now devoid of
object. A telegram dated October 19th, 1951, from the Hydrographic
Service of Norway to the Agent of the Norwegian Government, which was
communicated to the Agent of the United Kingdom Government has
confirmed that these three points are rocks which are not continuously
submerged. Since this assertion has not been further disputed by the United
Kingdom Government, it may be considered that the use of these rocks as
base-points is in conformity with the traditional Norwegian system.
Judge Alvarez Individual Opinion
I come to the following conclusions upon the questions submitted to the Court :
(1) Nonvay-like al1 other States-is entitled, in accordance with the general pnnciples
of the law of nations now in existence, to determine not only the breadth of her
territorial sea, but also the manner in which it is to be reckoned.
(2) The Nonvegian Decree of 1935, which delimited the Norwegian territorial sea, is
not contrary to any express provisions of international law. Nor is it contrary to the
general principles of international law, because the delimitation is reasonable, it does
not infringe rights acquired by other States, it does no harm to general interests and
does not constitute an abus de droit. In enacting the Decree of 1935, Nonvay had in
view simply the needs of the population of the areas in question.
(3) In view of the foregoing, it is unnecessary to consider whether or not Norway
acquired by prescription a right to lay down a breadth of more than three sea miles
for her territorial sea and the way in which its base-lines should be selected.
(4) If Nonvay is entitled to fix the extent of her territorial sea, as has been said, it is
clear that she can prohibit other States from fishing within the limits of that sea
without their being entitled to complain of a violation of their rights.
(5) The answer to the contentions of the Parties with regard to the existence of
certain precepts of the law of nations which they consider to be in force at the
present time has been given in the preceding pages.
Judge Hsu Mo Separate Opinion
Neither by the test of conformity with tlie general direction of the coast, nor on
historical grounds, can the two base-lines drawn across Svarholthavet and
Lopphavet, respectively, be considered as heing justifiable under the principles of
international law.
It is necessary to emphasize the fact that Nonvay's method of delimiting the belt of
her northern territorial sea by drawing straight lines between point and point, island
and island, constitutes a deviation from what 1 believe to be a general rule of
international law, namelv, that, apart from cases of bays and islands, the belt of
territorial sea should be measured, in principle, from the line of the coaçt at low tide.
International law permits, in certain circumstances, deviations from this general rule.
Where the deviations are justifiable, they must be recognized by other States.
Norway is justified in using the method of straight lines because of her special
geographical conditions and her consistent past practice which is acquiesced in by
the international community as a whole. But for such physical and historical facts,
the method employed by Nonvay in her Decree of 1935 would have to be considered
to be contrary to international law. In examining, therefore, the question of the
validity or non-validity of the base-lines actually drawn by Nonvay, it must be borne
in mind that it is not so much the direct application of the general rule as the degree
of deviation from the general rule that is to be considered. The question in each case
is : how far the line deviates from the configuration of the coast and whether such
deviation, under the system which the Court has correctly found Norway to have
established, should be recognized as being necessary and reasonable.
Sir Arnold McNair Dissenting Opinion
When the documents that have been submitted in this case in support of historic title
are examined, it appears to me that, with one exception which 1 shall mention, they
are marked by a lack of precision as to the waters which were the subject of fishing.
We get expressions such as "near Our fortress of Varshus", "off the coasts of
Finnmark", "the waters off the coast of this country", "near the land", "fish quite
close to the coast", "unlawful fishing which they have been practising in certain
localities", "the waters of Finnmark", "fjords or their adjacent waters", "whaling in
the waters which wash the coast of Norway and its provinces, in particular Iceland
and the Faroe Islands", etc., etc. The exception is the case of the licences granted to
Eric Lorch in theseventeenth century (see Annex 101 to Norwegian Rejoinder). In
1688 he received a licence to fish in, amongst other places, "the waters .... of the
sunken rock of Gjesbaen" ; in 1692 he received a licence to hunt whales ; in 1698 he
received another licecce to hunt whales, which mentions, among other places, "the
waters .... of the sunken rock of Gjesbaen". The 1st two licences state that it is
forbidden to all strangers and unlicensed persons to take whales in or without the
fjords or their adjacent waters, within ten leagues from the land". I do not know
precisely where the rock calied Gjesbæn or Gjesbæne is situated, beyond the
statement in paragraph 36 of the Counter-Mernorial that it is "near the word
Alangstaran", which is marked on the Norwegian Chart 6 (Annex 75 to the
Rejoinder) as being outside the outer Norwegian line of the Decree of 1935. On the
same chart of the region known as Lopphavet there appear to be two fishing-banks
called "Ytre Gjesboene" and, south of it, "Indre Gjesboene", the former being outside
the outer line of the Decree of 1935 and the latter between the outer line and the
base-line of that Decree. What the dimensions of the fishing-banks are is not clear.
The length of the base-line (from point 20 to 21) which runs in front of Lopphavet is
44 miles, so that even if the licences formed sufficient evidence to prove a historic
title to a fishing-bank off "the sunken rock of Gjesbaen", they could not affect so
extensive an area as Lopphavet. The three licences cover a period of ten years and
there is no evidence as to the duration of the fishery or its subsequent history.

Judge J.E. Read Dissenting Opinion

Thére can therefore be no doubt that Nonvay, from 1923 on, \vas vigorously
asserting and enforcing extensive- exclusive- rights. On the other hand, this was too
late to support a claim to the existence of the Iqonvegian System as a doctrine of
customary international law binding on the United Kingdom. The first of the
seizures, the Kanuck in 1923, was the subject of diplomatic negotiation. \l'hile it
would be entirely proper to attribute to the Government of the United Kingdom
knowledge that Nonvay, during the period from 1923 to 1933, was asserting very
wide claims as regards the extent of territorial waters, this al1 took place after the
present dispute had corne into being. It was too late to give effect to a special or
regional doctrine of international law binding on the Government of the United
Kingdom. 1 do not intend to comment on the different sectors of the coast, or to
indicate, in detail, the parts of the Disputed Areas whiçh are open to objection as not
having been delimited in conformity with the pnnciples of international law. In East
Finnmark 1 consider that the Disputed Areas between base-points 5 and 12 are open
to serious objection, and there 1 consider that the Green Line fairly indicates the
extent to which the Blue Line is not in conformity with international law. Between
base-points 12 and 35, while there are places where the Blue Line departs from the
line and direction cf the outer fringe of the "skjærgaard", the Green Line is
unsiitisfactory for two reasons : (1) because it needs to be rectifivd in accordance
with the British alternative submission ; and (2) 1)vcacse further rectification would
be necessary to take into account penetrations in the fringe of the "skjærgaard" which
in reality have the characteristics of bays enclosed by groups of islands.
Between base-points 35 and 48, while the matter is not frec. from doubt, 1 am not
incliried to question the Blue Linc. Xccordingly, in view of al1 of the foregoing
consideratioils, 1 am led to the coriclusion that the delimitation of the fisheries zone
fixed by the Norwegian Royal Decree of July xzth, 1935. is not in conformit? with
the ruIes and principles of international law.
 008 (The Corfu Channel Case) UNITED KINGDOM OF GREAT
BRITAIN & NORTHEN IRELAND v. ALBANIA (Escalona)
December 15, 1949 | Acquisition and Transfer of Territorial Sovereignty
PETITIONER: United Kingdom of Great Britain & Northern Ireland
RESPONDENTS: Albania
SUMMARY: Two British destroyers were severly damaged while crossing the
North Corfu Channel, which was within Albanian territory. Lives were lost and
the United Kingdom Government sought after compensation against Albania for
damages. There are three issues:
1. WoN Albania is liable for the loss of lives and damage of the destroyers.
The Court ruled that Albania is liable because it did not matter who laid the
mines when the ships crossed. What was important was the obligation of the
Albanian Government to warn the ships that there were mines laid out.
Considering that two hours had lapsed between the time the coastal defense
spotted the ships entering until the explosion, there was enough time to warn the
British ships. The Court ruled that Albania had the obligation to warn them
because it would have been easy coastal defense to spot whoever would lay
mines on the waters. Such omission of warning led to the grave damage of the
ships and the loss of lives.
2. WoN the United Kingdom violated the sovereignty of Albania by crossing the
Corfu Channel on Oct. 22, 1946.
This is the envoy that crossed the Corfu Channel on Oct. 22, 1946 and the two
destroyers exploded. The envoy was meant to send a message to the Albanian
Government to invite them to have diplomatic relations. The Court ruled that the
United Kingdom did not violate the sovereignty of Albania. It was ruled that the
Corfu Channel was an international highway. It is accepted as international
custom that straits, including this Channel, are accessible to warships innocently
passing through during times of peace between the States.
3. WoN the United Kingdom violated the sovereignty of Albania by their acts in
Albanian waters on November 12 & 13, 1946.
After the explosion, the United Kingdom Government sent ships to Albanian
waters to create a main line of defense and to protect the mines laid in the
waters. They wanted to protect the mines because the author of the mine-laying
could have come and taken the mines away, thus removing evidence of what
happened. The Court ruled that their acts violated such sovereignty. The
justifications of the United Kingdom in sending their warships in Albanian
territory, and not just passing through the Corfu Channel, amounted to the
violation of Albania’s territory. This is evident by the constant refusal of the
British ships in Albanian waters by the Albanian Government. The sovereignty
of a State over its waters is one of the principles of international law, and must
be respected by other States. The Court ruled that sending warships to another’s
territory without its consent and constant refusal is a sign of disrespect towards
that sovereignty. It was also noted that intervention by a State, even to protect
the corpus delicti of the crime to be complained about, is reserved as an extreme
measure because history has shown that this tends to lead to grave abuse and
exploitation.
DOCTRINE: (I’m really not sure which the doctrine is because all three issues
talk about the sovereignty of Albania, but if I had to choose, it would be this)
Territorial sovereignty extends to a State’s waters. Such sovereignty must be
respected by other States and may not commit certain acts that represent
disrespect or mocks the sovereignty of the State inside their territory. Though
there are exceptions to these acts, such as the safe passage of warships during
times of peace between States, so long as it is considered as innocent passage.
FACTS:
21. On October 22, 1946, two British cruisers and two destroyers entered the
North Corfu Strait. The channel they were following, which was in
Albanian waters, was regarded as safe. The waters were swept twice, once
in 1944 and another in 1945.
22. One of the destroyers, named Saumarez, struck a mine and was gravely
damaged. The other destroyer, named Volage, went to assist the damaged
destroyer. While towing Saumarez, Volage struck another mine and was
also seriously damaged.
23. 45 British officers and sailors lost their lives, and 42 others were wounded.
ISSUES:
14. WoN Albania is responsible for the loss of lives and damage sustained in
Albanian waters under international law – YES. Because of Albania’s
sovereignty over its lands and waters, the laying of the minefield could not
have been accomplished without the knowledge of Albania.
15. WoN United Kingdom violated the sovereignty of the People’s Republic of
Albania by reason of the acts of the British Navy in Albanian waters on
October 22, 1946 – NO. Because the Corfu Channel is considered an
international highway, and any warship may innocently pass during times of
peace between States.
16. WoN United Kingdom violated the sovereignty of the People’s Republic of
Albania by reason of the acts of the British Navy in Albanian waters on
November 12 & 13, 1946 – YES. The sending of the ships after the
explosions violated Albania’s sovereignty by impeding on their territory.
This could not be considered as innocent passage because the ships intended
to create a main line of defense on the territory of Albania.
RULING: The People’s Republic of Albania is responsible under international
law for the damage and loss of human life.
RATIO:
78. On the first issue:
79. The United Kingdom had several arguments:
a. Albania herself laid the mines
i. Lacked evidence to support this. Albania only had a few
launches and motor boats. These can’t support mine-
laying.
b. The mines were laid by Yugoslavian warships with either the
acquiescence or request of Albania
i. Also lacked evidence to prove collusion. The only
evidence presented was the affidavit of Lieutenant-
Commander Kovacic and the bond between Albania and
Yugoslavia through a political and military alliance. The
bond was represented by a Treaty of friendship and
mutual assistance. These facts led to no firm conclusion
because these did not prove that Yugoslavia possessed
any mines or proved that the treaty led to the participation
of a criminal act.
c. Whoever the perpetrator was, it could not have been done without
Albania’s knowledge
i. This argument moved the Court to discuss the
international obligations of Albania.
80. Eventually, the Court never found out who actually laid the mines. But the
Court still rendered judgment on the liability of Albania based on her
obligations as a sovereign entity.
81. The facts established importantly proved that Albania had knowledge of
mine-laying in her territorial waters independently of any connivance on her
part in this operation. It was noted that mine-laying could easily be
observed from the shores of Albania by its coastal defenses.
82. The obligations incumbent upon the Albanian authorities consisted in
notifying, for the benefit of shipping in general, the existence of a minefield
in Albanian territorial waters and in warning the approaching British
warships of the imminent danger to which the minefield exposed them.
Such obligations are based, not on the Hague Convention of 1907, No. VT
II, which is applicable in time of war, but on certain general and well-
recognized principles, namely: elementary considerations of humanity, even
more exacting in peace than in war; the principle of the freedom of
maritime communication; and every State's obligation not to allow
knowingly its territory to be used for acts contrary to the rights of other
States.
83. The Court goes on to consider whether Albania would have had sufficient
time to notify shipping of the existence of mines, and finds that, even if the
mines had been laid at the last possible moment, in the night of October
21st -22nd, the Albanian authorities could still have warned ships
approaching the danger zone. There was an interval of two hours between
when the British ships were reported by a look-out post and the time of the
first explosion. No warning was given, and the Court held that the omission
involve international responsibility for the explosions, and the damage and
loss of human life to which they gave rise.
84. Since nothing was attempted by the Albanian authorities to prevent the
disaster, these are considered as grave omissions involving the international
responsibility of Albania.
85. On the second issue:
86. On May 15, 1946, two British cruisers were passing through the Corfu
Channel. As they were passing through the shores of Albania, an Albanian
battery sudden started firing at them from behind. The United Kingdom
Government protested against the Albanian Government, arguing that
innocent passage through straits is a right recognized by international law.
87. There were diplomatic exchanges between the governments, and eventually,
the United Kingdom threatened Albania that if it ever fired at them, they
would fire back.
88. Months passed and the United Kingdom wanted to send a message to the
Albanian Government if they had learnt to behave themselves and willing to
establish diplomatic relations. Coincidentally, the envoys were precisely the
two destroyers and the two cruisers who passed through the North Corfu
Channel and got damaged on Oct. 22, 1946.
89. The Court ruled that it is an international custom that States in time of peace
have a right to send their warships through straits without previous
authorization of a coastal State, provided that the passage was innocent.
There is no right for a coastal State to prohibit such passage through straits
in time of peace.
90. The Court complemented this ruling by also ruling that the North Corfu
Channel is considered as an international highway through which passage
cannot be prohibited by a coastal State in time of peace.
91. Though it was argued by the Albanian Government that the passage was not
innocent. It was alleged that the passage was a political mission to affirm a
right which has been unjustly denied, the ships were maneuvering in a
diamond combat formation with soldiers on board, the position of the guns
was not consistent with innocent passage, the number of the ships and
armaments surpassed what was necessary in order to attain their object and
showed an intention to intimidate and not merely to pass.
92. The Court disregarded these claims by the presentation of telegrams
between British ships that disproved the Albanian claims.
93. Therefore, the passage of the British ships on Oct. 22, 1946 did not violate
Albania’s sovereignty.
94. On the third issue:
95. November 12 and 13, 1946 referred to the minesweeping operation called
 “Operation Retail”. After the explosions, the United Kingdom sent a note to
the Albanian Government that it intended to sweep the Corfu Channel. The
Albanian Government denied consent, unless it was done outside Albanian
territory.
96. Despite the objections, “Operation Retail” still carried out its activities in
Albanian territorial waters. This fact was not disputed by the United
Kingdom Government.
97. The only excuse that it had was that the operation was done in extreme
urgency and that it considered itself entitled to carry the operation out
without anybody’s consent.
98. The United Kingdom Government had two justifications:
a. An agreement between United Kingdom, France, the Soviet Union,
and the US authorized regional mine clearance organizations. The
United Kingdom relied on the circumstance that the Corfu Channel
was allotted to the sector of Greece, the United Kingdom was
given the permission by the Hellenic Government to resweep the
Corfu Channel.
i. The Court ruled that Albania was not even consulted
regarding the allocation to Greece, despite the fact that the
channel passed through Albanian territorial waters. The
permission of the Hellenic Government to the United
Kingdom held no water.
b. “Operation Retail” was a means of self-defense as it needed to set
up its main line of defense along the Corfu Channel in case of
attack. The United Kingdom also argued that it needed to secure
the area in order to secure the corpora delicti before the mines
could be taken away by the author of the mine-laying. Thus, the
intervention of the United Kingdom would have been justified.
i. The Court ruled that respect for territorial sovereignty is
an essential foundation of international relations. This
method of intervention is contrary to international law
because the right of intervention, in the past, gave rise to
the most serious abuses. It is reserved in extreme cases.
ii. The Court also recognized that even if the Albanian
Government failed in its international obligation to notify
the British ships, the sovereignty of Albania should still
be respected.
99. The ICJ reserved the right to assess the amount of compensation to a later
date due to the lack of specific amount of money requested by Britain. This
was later resolved in the Corfu Channel case in December, 1949. The
amounts requested were proven by expert’s analyses on the damage done to
the destroyers and the compensation for the loss of human lives.
 009 NORTH ATLANTIC FISHERIES ARBITRATION (US v.
BRITAIN) (GALINDEZ)
7 September 1910 | Permanent Court of Arbitration | Acquisition and Transfer of
Territorial Sovereignty / International Servitude
PETITIONER: United States
RESPONDENTS: Great Britain
SUMMARY: Great Britain and the US entered into a Treaty which stipulated
that inhabitants of the US can fish and cure, perpetually, from the Southern coast
of Newfoundland. Differences arose as to the scope and meaning of Article 1 of
said Treaty, hence they submitted the matter to the Permanent Court of
Arbitration at the Hague.
The US alleges that Great Britain, being able to regulate their fishing through
municipal laws amounted to international servitude. However, the Tribunal ruled
that there was no international servitude. This is because a servitude in IL
predicates an express grant of sovereign right. The Treaty involves the grant of
liberty to fish, which is NOT a sovereign right but a purely economic right. The
doctrine of international servitude has found no support from modern publicists.
Also, even if the liberties of fishery constituted an International servitude, the
servitude would derogate from the sovereignty of the servient state only insofar as
the exercise of the rights of sovereignty by the servient State would be contrary to
the exercise of the servitude right by the dominant State. The fishery to which the
US inhabitants were granted was also a regulated fishery.
DOCTRINE: A servitude in International law predicates an express grant of a
sovereign right and involves an analogy to the relation of a praedium dominans
and a praedium serviens; whereas by the Treaty of 1818 one State grants a liberty
to fish, which is not a sovereign right, but a purely economic right, to the
inhabitants of another State.
FACTS:
46. The US and Great Britain entered into a treaty of peace of 1783 which
stipulated that the inhabitants of US would continue to exercise the
privileges enjoyed in common with British subjects in the fisheries of
Newfoundland, Labrador and other parts of the North Atlantic Coast.
47. Great Britain regarded the treaty as abrogated by the war of 1812, and the
US considered it as only suspended.
48. On 1818, a new treaty was signed, Article 1 of which defined the rights and
obligations of US inhabitants as to fishing in certain parts of British North
Atlantic coast waters.
49. Differences arose as to the scope and meaning of the Article, beginning
with the seizure of American fishing vessels post-1818.
50. The controversy over fishing rights continued until 1905 when, on account
of Newfoundland’s restrictive legislation, affairs reached a critical stage.
51. Negotiations took place and on January 1909, a comprois was signed
submitting the controversy to the Permanent Court of Arbitration at the
Hague, where they dealt with 7 questions.
52. The contents of Article 1:
a. WHEREAS differences have arisen respecting the liberty claimed by the United
States for the Inhabitants thereof, to take, dry and cure Fish on Certain Coasts,
Bays, Harbours and Creeks of His Britannic Majesty's Dominions in America, it is
agreed between the High Contracting Parties, that the Inhabitants of the said United
States shall have forever, in common with die Subjects of His Britannic Majesty,
the Liberty to take Fish of every kind on that part of the Southern Coast of
Newfoundland which extends from Cape Ray to the Rameau Islands, on the
Western and Northern Coast of Newfoundland, from the said Cape Ray to the
Quirpon Islands, on the shores of the Magdalen Islands, and also on the Coasts,
Bays, Harbours, and Creeks from Mount Joly on the Southern Coast of Labrador, to
and through the Straits of Belleisle and thence Northwardly indefinitely along the
Coast, without prejudice, however, to any of the exclusive Rights of the Hudson
Bay Company; and that the American Fishermen shall also have liberty forever, to
dry and cure Fish in any of the unsettled Bays, Harbours and Creeks of the Southern
part of the Coast of Newfoundland hereabove described, and of the Coast of
Labrador; but so soon as the same, or any Portion thereof, shall be settled, it shall
not be lawful for the said Fishermen to dry or cure Fish at such Portion so settled,
without previous agreement for such purpose with the Inhabitants, Proprietors, or
Possessors of the ground. — And the United States hereby renounce forever, any
Liberty heretofore enjoyed or claimed by the Inhabitants thereof, to take, dry, or
cure Fish on, or within three marine Miles of any of the Coasts, Bays, Creeks, or
Harbours of His Britannic Majesty's Dominions in America not included within die
above-mentioned limits; provided, however, that the American Fishermen shall be
admitted to enter such Bays or Harbours for the purpose of Shelter and of repairing
Damages therein, of purchasing Wood, and of obtaining Water, and for no other
purpose whatever. But they shall be under such Restrictions as may be necessary to
prevent their taking, drying or curing Fish therein, or in any other manner whatever
abusing the Privileges hereby reserved to them.
53. Differences have arisen as to the scope and meaning of the Article.
QUESTION:
19. To what extent are the contentions of either of them justified? Great Britain
contends that the exercise of liberty to take fish by the US is subject to
reasonable regulation by the municipal laws of Great Britain, Canada or
Newfoundland, while the US believes that they are not subject to such
restrictions (The only question related to our topic)
RULING: Hence, the Tribunal decides and awards as follows:
The right of Great Britain to make regulations without the consent of the US, as to
the exercise of the liberty to take fish, in the form of municipal laws, ordinances or
rules of Great Britain, Canada or Newfoundland is inherent to the sovereignty of
Great Britain.
This exercise owever is limited by the Treaty in respect of said liberties therein
granted to the inhabitans of the US.
 of sovereignty by making regulations is limited to such regulations as are
RATIO: made in good faith, and are not in violation of the Treaty
100. Considering that the right to regulate the liberties conferred by the Treaty of
1818 is an attribute of sovereignty, and as such must be held to reside in the
territorial sovereign; and considering one of the essential elements of
sovereignty is that it is to be exercised within territorial limits, it follows
that the burden of the assertion involved in the contention of the US must
fall on the US.
101. The US alleges that the liberties of fishery granted to the United States
constitute an International servitude in their favour over the territory of
Great Britain, thereby involving a derogation from the sovereignty of Great
Britain, the servient State, and that therefore Great Britain is deprived, by
reason of the grant, of its independent right to regulate the fishery.
102. However, a servitude in IL predicates an express grant of a sovereign right;
by the Treaty one State grants a liberty to fish, which is not a sovereign
right, but a purely economic right to the inhabitants of another State
103. Even if the liberties of fishery constituted an International servitude, the
servitude would derogate from the sovereignty of the servient State only in
so far as the exercise of the rights of sovereignty by the servient State would
be contrary to the exercise of the servitude right by the dominant State.
Whereas it is evident that, though every regulation of the fisheiy is to some
extent a limitation, as it puts limits to the exercise of the fishery at will, yet
such regulations as are reasonable and made for the purpose of securing and
preserving the fishery and its exercise for the common benefit, are clearly to
be distinguished from those restrictions and "molestations".
104. It is also contended by the US that it did not expressly agree that the liberty
granted to them could be subjected to any restriction that the grantor might
choose to impose on the ground that in her judgment such restriction was
reasonable. That the legal effect of the grant of 1818 was not to leave the
determination as to where that line is to be drawn to the uncontrolled
judgment of the grantor, either upon the grantor's consideration as to what
would be a reasonable exercise of its sovereignty over the British Empire, or
upon the grantor's consideration of what would be a reasonable exercise
thereof towards the grantee.
105. However, the right to make reasonable regulations, not inconsistent with the
obligations of the Treaty, which is all that is claimed by Great Britain, for a
fishery which both Parties admit requires regulation for its preservation, is
not a restriction of or an invasion of the liberty granted to the inhabitants of
the United States. This grant does not contain words to justify the
assumption that the sovereignty of Great Britain upon its own territory was
in any way affected ; nor can words be found in the Treaty transferring any
part of that sovereignty to the United States. Great Britain assumed only
duties with regard to the exercise of its sovereignty. The sovereignty of
Great Britain over the coastal waters and territory of Newfoundland remains
after the Treaty as unimpaired as it was before. But from the Treaty results
an obligatory relation whereby the right of Great Britain to exercise its right
 010 Right of Passage case (Portugal v. India) (Gonzales)
April 12, 1960 | ICJ | Right of passage
PETITIONER: Portugal
RESPONDENTS: India
SUMMARY: India prevented Portgual from exercising Portugal’s alleged right of
passage over the enclaves in the Indian Peninsula. Portugal thus requested the ICJ to
declare that a right of passage was possessed by Portugal and must be respected by
India. Portugal invokes this right only to the extent necessary for the exercise of its
sovereignty, subject to the regulation and control of India. India, on the other hand,
argues that the right of passage claimed by Portugal was too vague and
contradictory.
The is WoN Portugal possessed the right of passage over the territory of India to the
extent necessary for the exercise of Portuguese sovereignty over the enclaves, which
right was subject to the regulation and control of India – YES, but only with regard
to private persons, civil officials and goods in general. This does not extend to armed
forces, armed police, and arms and ammunition. This right of passage was
established as a custom. *doctrine*
DOCTRINE: During the British and post-British periods, the passage of private
persons and civil officials had not been subject to any restrictions beyond routine
control. Merchandise other than arms and ammunition had also passed freely subject
only, at certain times, to customs regulations and such regulation and control as were
necessitated by considerations of security or revenue. However, as regards armed
forces, armed police and arms and ammunition, during the British and post-British
periods, Portuguese armed forces and armed police had not passed between Daman
and the enclaves as of right.
FACTS:
1. India, in pursuance of "the open campaign, which it has been carrying on
since 1950 for the annexation of Portuguese territories", prevented Portugal
from exercising the right of passage claimed by Portugal.
2. Portugal requested the Court to adjudge and declare that a right of passage
was possessed by Portugal and must be respected by India.
a. Its territory in the Indian Peninsula included two enclaves
surrounded by the Territory of India, Dadra and Nagar-Aveli.
b. This right was invoked by Portugal only to the extent necessary for
the exercise of its sovereignty over the enclaves.
c. Such passage remained subject to the regulation and control of
India, which must be exercised in good faith, India being under an
obligation not to prevent the transit necessary for the exercise of
Portuguese sovereignty.
3. India contended that the right of passage claimed by Portugal was too vague
and contradictory to enable the Court to pass judgment upon it by the
application of the legal rules enumerated in Article 38 (1) of the Statute.
ISSUE:
1. WoN Portugal possessed the right of passage over the territory of India to
the extent necessary for the exercise of Portuguese sovereignty over the
enclaves, which right was subject to the regulation and control of India –
YES, but only with regard to private persons, civil officials and goods in
general. This does not extend to armed forces, armed police, and arms and
ammunition. This right of passage was established as a custom.
RULING: Ruled in favor of Portugal.
SUMMARY:
1. Portugal had in 1954 a right of passage over intervening Indian territory
between the enclaves of Dadra and Nagar-Aveli and the coastal district of
Daman and between these enclaves, to the extent necessary for the exercise
of Portuguese sovereignty over the enclaves and subject to the regulation
and control of India, in respect of private persons, civil officials and goods
in general
2. Portugal did not have in 1954 such a right of passage in respect of armed
forces, armed police, and arms and ammunition
3. India has not acted contrary to its obligations resulting from Portugal's right
of passage in respect of private persons, civil officials and goods in general.
RATIO:
1. Portugal relied on the Treaty of Poona of 1779 and on sanuds (decrees)
issued by the Maratha ruler in 1783 and 1785, as having conferred on
Portugal sovereignty over the enclaves with the right of passage to them.
2. India objected on ground that the Treaty of 1779 was not validly entered
into and never became in law a treaty binding upon the Marathas.
3. The Court, however, found that the Marathas did not at any time cast any
doubt upon the validity or binding character of the Treaty.
4. India contended that the Treaty and the two sanads did not operate to
transfer sovereignty over the assigned villages to Portugal but only
conferred, with respect to the villages, a revenue grant.
5. The Court was unable to conclude from an examination of the Treaty of
1779 that the language employed therein was intended to transfer
sovereignty; the expressions used in the two sanads, on the other hand,
established that what was granted to the Portuguese was only a revenue
tenure called ajagir or saranjam.
6. The Court found that the situation underwent a change with the advent of
the British as sovereign of that part of the country in place of the Marathas:
Portuguese sovereignty over the villages had been recognized by the
British in fact and by implication and had subsequently been tacitly
recognized by India. As a consequence, the villages had acquired the
character of Portuguese enclaves within Indian territory and there had
developed between the Portuguese and the territorial sovereign with regard
 to passage to the enclaves a practice upon which Portugal relied for the 1954 and which had resulted in the overthrow of Portuguese authority in
purpose of establishing the right of passage claimed by it. that enclave had created tension in the surrounding Indian district. Having
7. India argued that no local custom could be established between only regard to that tension, the Court was of the view that India's refusal of
two States, but the Court found it difficult to see why the number of passage was covered by its power of regulation and control of the right
States between which a local custom might be established on the basis of passage of Portugal.
of long practice must necessarily be larger than two.
8. During the British and post-British periods, the passage of private persons
and civil officials had not been subject to any restrictions beyond routine
control. Merchandise other than arms and ammunition had also passed
freely subject only, at certain times, to customs regulations and such
regulation and control as were necessitated by considerations of security or
revenue. Therefore, with regard to private persons, civil officials and
goods in general there had existed a constant and uniform practice
allowing free passage between Daman and the enclaves. It was, in view
of all the circumstances of the case, satisfied that that practice had been
accepted as law by the Parties and had given rise to a right and a correlative
obligation.
9. As regards armed forces, armed police and arms and ammunition, during
the British and post-British periods, Portuguese armed forces and armed
police had not passed between Daman and the enclaves as of right, and that
after 1878, such passage could only take place with previous authorization
by the British and later by India.
10. A treaty of 26 December 1878 between Great Britain and Portugal had laid
down that the armed forces of the two Governments should not enter the
Indian dominions of the other, except in specified cases or in consequence
of a formal request made by the party desiring such entry. Subsequent
correspondence showed that this provision was applicable to passage
between Daman and the enclaves.
11. As regards arms and ammunition, the Treaty of 1878 and rules framed
under the Indian Arms Act of 1878 prohibited the importation of arms,
ammunition or military stores from Portuguese India and its export to
Fbrtuguese India without a special licence. Subsequent practice showed that
this provision applied to transit between Daman and the enclaves.
12. Therefore, there is no right of passage in favour of Portugal involving a
correlative obligation on India had been established in respect of armed
forces, armed police and arms and ammunition.

13. Whether India had acted contrary to its obligation resulting from Portugal's
right of passage in respect of any of these categories.
14. Portugal had not contended that India had acted contrary to that obligation
before July 1954, but it complained that passage was thereafter denied to
Portuguese nationals of European origin, to native Indian Portuguese in the
employ of the Portuguese Government and to a delegation that the
Governorof Daman proposed, in July 1954, to send to Nagar-Aveli and
Dadra.
15. The Court found that the events which had occurred in Dadra on 21-22 July
 011 The Case of S.S. Wimbledon (Gueco)
1923 | Neutrality order vs. Treaty of peace
PETITIONER: British, French, Japanese, and Italian government
RESPONDENTS: Government of Germany
SUMMARY:
There was a war going on between Poland and Russia. S.S. Wimbledon, a
steamship, was used to deliver munitions and supplies to Poland. When it was
about to pass the Kiel Canal in Germany, it was refused passage because
Germany issued neutrality orders wherein it wished not to support either Russia
or Poland. The French Ambassador at Berlin requested the German government
to withdraw the prohibition and to allow S.S. Wimbledon to pass through the
Kiel Canal, in conformity with Article 380 of the Treaty of Versailles. However,
the German government still refused. They argued that Article 380 of the Treaty
of Versailles did not have the effect of limiting their sovereignty over their land.
Because of Germany’s refusal to let S.S. Wimbledon to pass through the Kiel
Canal, there was a delay in the delivery of the shipment (the boat was detained
for eleven days and it took two extra days to find another route). The plaintiffs
(“British et. al governments”) thus filed this case with the Permanent Court of
International Justice (“PCIJ”). They claim that Germany violated the Treaty of
Versailles. They also claimed damages for the lost time and money in the
transport of the goods. ISSUE: WoN a state is obligated to allow free passage
based on a treaty even if it would violate its right to neutrality in times of war—
YES, GERMANY SHOULD HAVE ALLOWED PASSAGE BASED ON
THEIR TREATY. IT IS CLEAR FROM ART. 380 THAT THE
PROHIBITION ON PASSAGE APPLIES ONLY TO STATE VESSELS WHO
ARE AT WAR WITH GERMANY. BRITISH ET. AL GOVERNMENT, NOT
BEING AT WAR WITH GERMANY, SHOULD HAVE BEEN ALLOWED
PASSAGE. RULING: It is clear from Art. 380 of the Treaty that Germany is
obligated to allow free passage to all vessels, without distinction as to the nature
of their cargo or their destination. The only vessels which cannot pass through
are those belonging to nations at war with Germany. In this case, British et. al
governments were not at war with Germany. If free access to the Kiel Canal
could be modified in the event of German neutrality, then the Treaty should
have said so. Its omission should thus be construed as an intentional exclusion.
Also, the German neutrality orders could not preempt the provisions of the
Treaty of Versailles because Article 380 explicitly authorized passage of the
Wimbledon. Allowing the ship to pass cannot be imputed to Germany as a
failure to fulfill its duties as a neutral, for Germany's neutrality would have
remained intact and irreproachable.
DOCTRINE:
A neutrality order issued by an individual state cannot hold more power than the
provisions of an international treaty of peace.
FACTS:
8. There was a war going on between Poland and Russia (Russo-Polish war).
9. S.S. Wimbledon is an English steamship owned by a French company
named as Les Affréteurs réunis. The ship was used to deliver munitions and
supplies to the Polish Naval Base at Danzig (in Poland).
10. When the ship was going to pass through the Kiel Canal in Germany, it was
refused passage because of a neutral order passed by the German
government wherein they wished not to support either Russia or Poland.
11. The French Ambassador at Berlin requested the German government to
withdraw the prohibition and to allow S.S. Wimbledon to pass through the
Kiel Canal, in conformity with Article 38015 of the Treaty of Versailles.
However, the German government still refused. They argued that Article
380 of the Treaty of Versailles did not have the effect of limiting their
sovereignty over their land.
12. Because of Germany’s refusal to let S.S. Wimbledon to pass through the
Kiel Canal, there was a delay in the delivery of the shipment (the boat was
detained for eleven days and it took two extra days to find another route).
13. Diplomatic relations between the states did not resolve the problem so the
matter was brought before the Permanent Court of International Justice
(“PCIJ”).
14. The plaintiffs in this case are British, French, Japanese, and Italian
governments (“British et. al governments”) who claim that Germany
violated Article 380 of the Treaty of Versailles which states that the Kiel
Canal will remain “free and open to the vessels of commerce of war of all
nations at peace with Germany on terms of entire equality.” British et. al
governments claim that they are not at war with Germany; thus, they should
have been allowed passage. They are now claiming damages for the lost
time and money in the transport of the goods.
15. The defendant, Germany, claimed that despite the articles of the Treaty of
Versailles, they were under no obligation to allow the passage of the S.S.
Wimbledon because they issued a Neutrality Order for the Russo-Polish
War
ISSUES:
3. WoN a state is obligated to allow free passage based on a treaty even if it
would violate its right to neutrality in times of war—YES, GERMANY
SHOULD HAVE ALLOWED PASSAGE BASED ON THEIR TREATY.
IT IS CLEAR FROM ART. 380 THAT THE PROHIBITION ON
PASSAGE APPLIES ONLY TO STATE VESSELS WHO ARE AT WAR
WITH GERMANY. BRITISH ET. AL GOVERNMENT, NOT BEING AT
WAR WITH GERMANY, SHOULD HAVE BEEN ALLOWED
PASSAGE.
15 “The Kiel Canal and its approaches shall be maintained free and open to the vessels of
commerce and war of all nations at peace with Germany on terms of entire equality.”
RATIO:
6. It is clear from Art. 380 of the Treaty that Germany is obligated to allow
free passage to all vessels, without distinction as to the nature of their cargo
or their destination. The only vessels which cannot pass through are those
belonging to nations at war with Germany. In this case, British et. al
governments were not at war with Germany.
7. The Court also stated that the Kiel Canal is no longer in the same category
as normal internal waterways—the use of which is left to the discretion of
the state. The Kiel Canal, rather, is now considered an international
waterway as laid out in the Treaty of Versailles. This means that it is open
to all vessels, regardless of state, as long as that state is at peace with
Germany. This is because the point of the canal is to provide easier access
to the Baltic states.
8. If free access to the Kiel Canal could be modified in the event of German
neutrality, then the Treaty should have said so. Its omission should thus be
construed as an intentional exclusion.
9. Also, the German neutrality orders could not preempt the provisions of the
Treaty of Versailles because Article 380 explicitly authorized passage of the
Wimbledon. Allowing the ship to pass cannot be imputed to Germany as a
failure to fulfill its duties as a neutral, for Germany's neutrality would have
remained intact and irreproachable.
 012 Magallona v Executive Secretary (GUSTILO)
August 16 2011| Carpio, J. | Acquisition & Transfer of Territorial Sovereignty
PETITIONER:Prof Merlin Magallona et al
RESPONDENTS:Eduardo Ermita as Executive Secretary, et al
SUMMARY: In March 2009, Republic Act 9522, an act defining the
archipelagic baselines of the Philippines was enacted – the law is also known as
the Baselines Law. This law was meant to comply with the terms of the third
United Nations Convention on the Law of the Sea (UNCLOS III), ratified by the
Philippines in February 1984.Professor Merlin Magallona et al questioned the
validity of RA 9522 as they contend, among others, that the law decreased the
national territory of the Philippines hence the law is unconstitutional. Some of
their particular arguments are as follows: (a) the law abandoned the demarcation
set by the Treaty of Paris and other ancillary treaties-this also resulted to the
exclusion of our claim over Sabah; (b) the law, as well as UNCLOS itself,
describes the Philippine waters as “archipelagic” waters which, in international
law, opens our waters landward of the baselines to maritime passage by all
vessels (innocent passage) and aircrafts (overflight), undermining Philippine
sovereignty and national security, contravening the country’s nuclear-free
policy, and damaging marine resources, in violation of relevant constitutional
provisions; (c) the classification of the Kalayaan Island Group (KIG), as well as
the Scarborough Shoal (bajo de masinloc), as a “regime of islands” pursuant to
UNCLOS results in the loss of a large maritime area but also prejudices the
livelihood of subsistence fishermen. The issue is WoN RA 9522 is
unconstitutional?- NO because it allows an internationally-recognized
delimitation of the breadth of the Philippines’ maritime zones and continental
shelf.
The Court held that RA 9522, or UNCLOS, itself is not a means to acquire, or
lose, territory. The treaty and the baseline law has nothing to do with the
acquisition, enlargement, or diminution of the Philippine territory. What controls
when it comes to acquisition or loss of territory is the international law principle
on occupation, accretion, cession and prescription and NOT the execution
of multilateral treaties on the regulations of sea-use rights or enacting statutes to
comply with the treaty’s terms to delimit maritime zones and continental
shelves.The law did not decrease the demarcation of our territory. In fact it
increased it. Under the old law amended by RA 9522 (RA 3046), we adhered
with the rectangular lines enclosing the Philippines. The area that it covered was
440,994 square nautical miles (sq. na. mi.). But under 9522, and with the
inclusion of the exclusive economic zone, the extent of our maritime was
increased to 586,210 sq. na. mi. The law did not abandon the Sabah claim. This
is evident on the provision of Section 2 of RA 9522. UNCLOS may term our
waters as “archipelagic waters” and that we may term it as our “internal waters”,
but the bottom line is that our country exercises sovereignty over these waters
and UNCLOS itself recognizes that. However, due to our observance of
international law, we allow the exercise of others of their right of innocent
passage. No modern State can validly invoke its sovereignty to absolutely forbid
innocent passage that is exercised in accordance with customary international
law without risking retaliatory measures from the international community.
The classification of the KIG (or the Spratly’s), as well as the Scarborough
Shoal, as a regime of islands did not diminish our maritime area. Under
UNCLOS and under the baselines law, since they are regimes of islands, they
generate their own maritime zones – in short, they are not to be enclosed within
the baselines of the main archipelago (which is the Philippine Island group). This
is because if we do that, then we will be enclosing a larger area which would
already depart from the provisions of UNCLOS – that the demarcation should
follow the natural contour of the archipelago. Nevertheless, we still continue to
lay claim over the KIG and the Scarborough Shoal through effective occupation.
DOCTRINE: Far from surrendering the Philippines’ claim over the KIG and the
Scarborough Shoal, Congress’ decision to classify the KIG and the Scarborough
Shoal as "‘Regime[s] of Islands’ under the Republic of the Philippines consistent
with Article 121" of UNCLOS III manifests the Philippine State’s responsible
observance of its pacta sunt servanda obligation under UNCLOS III. Under
Article 121 of UNCLOS III, any "naturally formed area of land, surrounded by
water, which is above water at high tide," such as portions of the KIG, qualifies
under the category of "regime of islands," whose islands generate their own
applicable maritime zones.
FACTS:
54. In 1961, Congress passed Republic Act No. 3046 (RA 3046) demarcating
the maritime baselines of the Philippines as an archipelagic State. This law
followed the framing of the Convention on the Territorial Sea and the
Contiguous Zone in 1958 (UNCLOS I), codifying, among others, the
sovereign right of States parties over their "territorial sea," the breadth of
which, however, was left undetermined. Attempts to fill this void during the
second round of negotiations in Geneva in 1960 (UNCLOS II) proved
futile. Thus, domestically, RA 3046 remained unchanged for nearly five
decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA
5446]) correcting typographical errors and reserving the drawing of
baselines around Sabah in North Borneo.
55. In March 2009, Congress amended RA 3046 by enacting RA 9522, the
statute now under scrutiny. The change was prompted by the need to make
RA 3046 compliant with the terms of the United Nations Convention on the
Law of the Sea (UNCLOS III), which the Philippines ratified on 27
February 1984. Among others, UNCLOS III prescribes the water-land ratio,
length, and contour of baselines of archipelagic States like the
Philippines and sets the deadline for the filing of application for the
extended continental shelf. Complying with these requirements, RA 9522
shortened one baseline, optimized the location of some basepoints around
 the Philippine archipelago and classified adjacent territories, namely, the
Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of
islands" whose islands generate their own applicable maritime zones.
56. Petitioners (Magallona et al), professors of law, law students and a
legislator, in their respective capacities as "citizens, taxpayers or x x x
legislators," as the case may be, assail the constitutionality of RA 9522 on
two principal grounds, namely: (1) RA 9522 reduces Philippine maritime
territory, and logically, the reach of the Philippine state’s sovereign power,
in violation of Article 1 of the 1987 Constitution, embodying the terms of
the Treaty of Paris and ancillary treaties, and (2) RA 9522 opens the
country’s waters landward of the baselines to maritime passage by all
vessels and aircrafts, undermining Philippine sovereignty and national
security, contravening the country’s nuclear-free policy, and damaging
marine resources, in violation of relevant constitutional provisions.
57. In addition, Magallona et al contend that RA 9522’s treatment of the KIG as
"regime of islands" not only results in the loss of a large maritime area but
also prejudices the livelihood of subsistence fishermen. To buttress their
argument of territorial diminution, Magallona et al facially attack RA 9522
for what it excluded and included-its failure to reference either the Treaty of
Paris or Sabah and its use of UNCLOS III’s framework of regime of islands
to determine the maritime zones of the KIG and the Scarborough Shoal.
58. Commenting on the petition, Ermita et al raised threshold issues questioning
(1) the petition’s compliance with the case or controversy requirement for
judicial review grounded on Magallona et al’s alleged lack of locus
standi and (2) the propriety of the writs of certiorari and prohibition to
assail the constitutionality of RA 9522. On the merits, Ermita et al defended
RA 9522 as the country’s compliance with the terms of UNCLOS III,
preserving Philippine territory over the KIG or Scarborough Shoal. Ermita
et al add that RA 9522 does not undermine the country’s security,
environment and economic interests or relinquish the Philippines’ claim
over Sabah.
59. Ermita et al also question the normative force, under international law, of
Magallona et al’s assertion that what Spain ceded to the United States under
the Treaty of Paris were the islands and all the waters found within the
boundaries of the rectangular area drawn under the Treaty of Paris.
ISSUE/s:
20. WoN RA 9522 is unconstitutional?- NO because it allows an
internationally-recognized delimitation of the breadth of the
Philippines’ maritime zones and continental shelf.
Procedural Issues:
21. WoN Magallona et al possess locus standi to bring this suit?- YES because
they are citizens with constitutionally sufficient interest in the
resolution of the merits of the case which undoubtedly raises issues of
national significance necessitating urgent resolution. Indeed, owing to
the peculiar nature of RA 9522, it is understandably difficult to find
other litigants possessing "a more direct and specific interest" to bring
the suit, thus satisfying one of the requirements for granting citizenship
standing.
22. WoN the writs of certiorari & prohibition are the proper remedies to assail
the constitutionality of RA 9522?- YES because issues of constitutional
import are sometimes crafted out of statutes which, while having no
bearing on the personal interests of Magallona et al, carry such
relevance in the life of this nation that the Court inevitably finds itself
constrained to take cognizance of the case and pass upon the issues
raised, non-compliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such
law.
RULING: Wherefore, the Court dismisses the petition.
RATIO:
RA 9522 is not unconstitutional, it is a statutory tool to demarcate the
country’s maritime zones & continental shelf under UNCLOS III, not to
delineate Philippine Territory
106. Magallona et al submit that RA 9522 "dismembers a large portion of the
national territory" because it discards the pre-UNCLOS III demarcation of
Philippine territory under the Treaty of Paris and related treaties,
successively encoded in the definition of national territory under the 1935,
1973 and 1987 Constitutions. Magallona et al theorize that this
constitutional definition trumps any treaty or statutory provision denying
the Philippines sovereign control over waters, beyond the territorial sea
recognized at the time of the Treaty of Paris, that Spain supposedly ceded to
the United States. Petitioners argue that from the Treaty of Paris’ technical
description, Philippine sovereignty over territorial waters extends hundreds
of nautical miles around the Philippine archipelago, embracing the
rectangular area delineated in the Treaty of Paris.
107. The Court states that UNCLOS III has nothing to do with the
acquisition (or loss) of territory. It is a multilateral treaty regulating,
among others, sea-use rights over maritime zones (i.e., the territorial
waters [12 nautical miles from the baselines], contiguous zone [24
nautical miles from the baselines], exclusive economic zone [200
nautical miles from the baselines]), and continental shelves that
UNCLOS III delimits. UNCLOS III was the culmination of decades-
long negotiations among United Nations members to codify norms
regulating the conduct of States in the world’s oceans and submarine
areas, recognizing coastal and archipelagic States’ graduated authority
over a limited span of waters and submarine lands along their coasts.
108. On the other hand, baselines laws such as RA 9522 are enacted by
UNCLOS III States parties to mark-out specific basepoints along their
coasts from which baselines are drawn, either straight or contoured, to serve
 as geographic starting points to measure the breadth of the maritime zones
and continental shelf. Article 48 of UNCLOS III on archipelagic States like
ours could not be any clearer: Article 48. Measurement of the breadth of the
territorial sea, the contiguous zone, the exclusive economic zone and the
continental shelf. – The breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf shall be measured
from archipelagic baselines drawn in accordance with article 47.
109. Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III
States parties to delimit with precision the extent of their maritime zones
and continental shelves. In turn, this gives notice to the rest of the
international community of the scope of the maritime space and submarine
areas within which States parties exercise treaty-based rights, namely, the
exercise of sovereignty over territorial waters (Article 2), the jurisdiction to
enforce customs, fiscal, immigration, and sanitation laws in the contiguous
zone (Article 33), and the right to exploit the living and non-living
resources in the exclusive economic zone (Article 56) and continental shelf
(Article 77).
110. Even under Magallona et al’s theory that the Philippine territory embraces
the islands and all the waters within the rectangular area delimited in the
Treaty of Paris, the baselines of the Philippines would still have to be drawn
in accordance with RA 9522 because this is the only way to draw the
baselines in conformity with UNCLOS III. The baselines cannot be drawn
from the boundaries or other portions of the rectangular area delineated in
the Treaty of Paris, but from the "outermost islands and drying reefs of the
archipelago.
111. UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as Magallona et als claim, diminution of territory. Under
traditional international law typology, States acquire (or conversely, lose)
territory through occupation, accretion, cession and prescription, not by
executing multilateral treaties on the regulations of sea-use rights or
enacting statutes to comply with the treaty’s terms to delimit maritime
zones and continental shelves. Territorial claims to land features are outside
UNCLOS III, and are instead governed by the rules on general international
law.
RA 9522’s use of the framework of regime of islands to determine the
maritime zones of the KIG & the Scarborough Shoal, not inconsistent with
the Philippines’ claim of sovereignty over these areas
112. Magallona et al next submit that RA 9522’s use of UNCLOS III’s regime of
islands framework to draw the baselines, and to measure the breadth of the
applicable maritime zones of the KIG, "weakens our territorial claim" over
that area. Magallona et al add that the KIG’s (and Scarborough Shoal’s)
exclusion from the Philippine archipelagic baselines results in the loss of
"about 15,000 square nautical miles of territorial waters," prejudicing the
livelihood of subsistence fishermen.
113. The configuration of the baselines drawn under RA 3046 and RA 9522
shows that RA 9522 merely followed the basepoints mapped by RA
3046, save for at least nine basepoints that RA 9522 skipped to optimize
the location of basepoints and adjust the length of one baseline (and
thus comply with UNCLOS III’s limitation on the maximum length of
baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the
Philippine archipelago. This undeniable cartographic fact takes the
wind out of Magallona et al’s argument branding RA 9522 as a
statutory renunciation of the Philippines’ claim over the KIG,
assuming that baselines are relevant for this purpose.
114. Magallona et al’s assertion of loss of "about 15,000 square nautical miles of
territorial waters" under RA 9522 is similarly unfounded both in fact and
law. On the contrary, RA 9522, by optimizing the location of
basepoints, increased the Philippines’ total maritime space (covering its
internal waters, territorial sea and exclusive economic zone) by 145,216
square nautical miles. The reach of the exclusive economic zone drawn
under RA 9522 even extends way beyond the waters covered by the
rectangular demarcation under the Treaty of Paris. Of course, where there
are overlapping exclusive economic zones of opposite or adjacent States,
there will have to be a delineation of maritime boundaries in accordance
with UNCLOS III.
115. Further, Magallona et al’s’ argument that the KIG now lies outside
Philippine territory because the baselines that RA 9522 draws do not
enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits
to text the Philippines’ continued claim of sovereignty and jurisdiction over
the KIG and the Scarborough Shoal: SEC. 2. The baselines in the following
areas over which the Philippines likewise exercises sovereignty and
jurisdiction shall be determined as "Regime of Islands" under the Republic
of the Philippines consistent with Article 121 of the United Nations
Convention on the Law of the Sea (UNCLOS): a) The Kalayaan Island
Group as constituted under Presidential Decree No. 1596 and b) Bajo de
Masinloc, also known as Scarborough Shoal.
116. Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as
part of the Philippine archipelago, adverse legal effects would have ensued.
The Philippines would have committed a breach of two provisions of
UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he
drawing of such baselines shall not depart to any appreciable extent from
the general configuration of the archipelago." Second, Article 47 (2) of
UNCLOS III requires that "the length of the baselines shall not exceed 100
nautical miles," save for three per cent (3%) of the total number of baselines
which can reach up to 125 nautical miles.
117. The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-
Santiago, took pains to emphasize the foregoing during the Senate
deliberations: What we call the Kalayaan Island Group or what the rest
of the world call the Spratlys and the Scarborough Shoal are outside
 our archipelagic baseline because if we put them inside our baselines we
might be accused of violating the provision of international law which
states: "The drawing of such baseline shall not depart to any appreciable
extent from the general configuration of the archipelago." So sa loob ng
ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang
Scarborough Shoal, hindi natin masasabing malapit sila sa atin although
we are still allowed by international law to claim them as our own.This is
called contested islands outside our configuration. We see that our
archipelago is defined by the orange line which [we] call archipelagic
baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that
is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan
Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung
ilihis pa natin ang dating archipelagic baselines para lamang masama
itong dalawang circles, hindi na sila magkalapit at baka hindi na
tatanggapin ng United Nations because of the rule that it should follow
the natural configuration of the archipelago.
118. The amendment of the baselines law was necessary to enable the
Philippines to draw the outer limits of its maritime zones including the
extended continental shelf in the manner provided by Article 47 of
[UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the
baselines suffer from some technical deficiencies, to wit: (A) The length
of the baseline across Moro Gulf (from Middle of 3 Rock Awash to
Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum
length allowed under Article 47(2) of the [UNCLOS III], which states that
"The length of such baselines shall not exceed 100 nautical miles, except
that up to 3 per cent of the total number of baselines enclosing any
archipelago may exceed that length, up to a maximum length of 125
nautical miles." (B) The selection of basepoints is not optimal. At least 9
basepoints can be skipped or deleted from the baselines system. This will
enclose an additional 2,195 nautical miles of water. (C) Finally, the
basepoints were drawn from maps existing in 1968, and not established by
geodetic survey methods. Accordingly, some of the points, particularly
along the west coasts of Luzon down to Palawan were later found to be
located either inland or on water, not on low-water line and drying reefs as
prescribed by Article 47.
119. Hence, far from surrendering the Philippines’ claim over the
KIG and the Scarborough Shoal, Congress’ decision to classify the KIG
and the Scarborough Shoal as "‘Regime[s] of Islands’ under the
Republic of the Philippines consistent with Article 121" of UNCLOS III
manifests the Philippine State’s responsible observance of its pacta sunt
servanda obligation under UNCLOS III. Under Article 121 of UNCLOS
III, any "naturally formed area of land, surrounded by water, which is
above water at high tide," such as portions of the KIG, qualifies under
the category of "regime of islands," whose islands generate their own
applicable maritime zones.
Statutory Claim Over Sabah under
RA 5446 Retained
120. Magallona et al’s argument for the invalidity of RA 9522 for its failure to
textualize the Philippines’ claim over Sabah in North Borneo is also
untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps
open the door for drawing the baselines of Sabah: Section 2. The definition
of the baselines of the territorial sea of the Philippine Archipelago as
provided in this Act is without prejudice to the delineation of the
baselines of the territorial sea around the territory of Sabah, situated in
North Borneo, over which the Republic of the Philippines has acquired
dominion and sovereignty.
UNCLOS III & RA 9522 not incompatible with the Constitution’s Delineation
of Internal Waters
121. Magallona et al contend that the law unconstitutionally "converts" internal
waters into archipelagic waters, hence subjecting these waters to the right of
innocent and sea lanes passage under UNCLOS III, including overflight.
Magallona et al extrapolate that these passage rights indubitably expose
Philippine internal waters to nuclear and maritime pollution hazards, in
violation of the Constitution.
122. Whether referred to as Philippine "internal waters" under Article I of the
Constitution or as "archipelagic waters" under UNCLOS III (Article 49 [1]),
the Philippines exercises sovereignty over the body of water lying landward
of the baselines, including the air space over it and the submarine areas
underneath. UNCLOS III affirms this.
123. The fact of sovereignty, however, does not preclude the operation of
municipal and international law norms subjecting the territorial sea or
archipelagic waters to necessary, if not marginal, burdens in the
interest of maintaining unimpeded, expeditious international
navigation, consistent with the international law principle of freedom of
navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers,
may pass legislation designating routes within the archipelagic waters
to regulate innocent and sea lanes passage. Indeed, bills drawing
nautical highways for sea lanes passage are now pending in Congress.
124. In the absence of municipal legislation, international law norms, now
codified in UNCLOS III, operate to grant innocent passage rights over the
territorial sea or archipelagic waters, subject to the treaty’s limitations and
conditions for their exercise. Significantly, the right of innocent passage is a
customary international law, thus automatically incorporated in the corpus
of Philippine law. No modern State can validly invoke its sovereignty to
absolutely forbid innocent passage that is exercised in accordance with
customary international law without risking retaliatory measures from the
international community.
125. The fact that for archipelagic States, their archipelagic waters are subject to
both the right of innocent passage and sea lanes passage does not place
them in lesser footing vis-à-vis continental coastal States which are subject,
in their territorial sea, to the right of innocent passage and the right of transit
passage through international straits. The imposition of these passage rights
through archipelagic waters under UNCLOS III was a concession by
archipelagic States, in exchange for their right to claim all the waters
landward of their baselines, regardless of their depth or distance from the
coast, as archipelagic waters subject to their territorial sovereignty. More
importantly, the recognition of archipelagic States’ archipelago and the
waters enclosed by their baselines as one cohesive entity prevents the
treatment of their islands as separate islands under UNCLOS III. Separate
islands generate their own maritime zones, placing the waters between
islands separated by more than 24 nautical miles beyond the States’
territorial sovereignty, subjecting these waters to the rights of other States
under UNCLOS III.
126. In fact, the demarcation of the baselines enables the Philippines to
delimit its exclusive economic zone, reserving solely to the Philippines
the exploitation of all living and non-living resources within such zone.
Such a maritime delineation binds the international community since
the delineation is in strict observance of UNCLOS III. If the maritime
delineation is contrary to UNCLOS III, the international community
will of course reject it and will refuse to be bound by it.
127. UNCLOS III favors States with a long coastline like the Philippines.
UNCLOS III creates a sui generis maritime space-the exclusive economic
zone-in waters previously part of the high seas. UNCLOS III grants new
rights to coastal States to exclusively exploit the resources found within this
zone up to 200 nautical miles. UNCLOS III, however, preserves the
traditional freedom of navigation of other States that attached to this zone
beyond the territorial sea before UNCLOS III.
128. The enactment of UNCLOS III compliant baselines law for the Philippine
archipelago and adjacent areas, as embodied in RA 9522, allows an
internationally-recognized delimitation of the breadth of the Philippines’
maritime zones and continental shelf. RA 9522 is therefore a most vital step
on the part of the Philippines in safeguarding its maritime zones, consistent
with the Constitution and our national interest.
013 North Sea Continental Shelf Cases (Germany v. Denmark/Holland) agreement on the boundaries beyond the limits of the partial delimitations.
(Hilario) 62. Denmark and the Netherlands both contended that the delimitation of their
February 20, 1969 | Acquisition and Transfer of Territorial Sovereignty continental shelves should be determined in accordance with the principle
of equidistance. The delimitation of the boundaries near the coast had been
made on the basis of this principle.
PETITIONER: Germany
63. However, Germany
RESPONDENTS: Denmark/the Netherlands
considered that
such an
SUMMARY: Germany, Denmark, and the Netherlands failed to reach an
arrangement would
agreement on how to delimit their continental shelves in the North Sea. Denmark
result in an
and the Netherlands both contended that the delimitation of their continental
inequitable
shelves should be determined in accordance with the principle of equidistance.
delimitation for
The delimitation of the boundaries near the coast had been made on the basis of
them.
this principle. However, Germany considered that such an arrangement would
result in an inequitable delimitation for them. Thus, the three states agreed to
64. Denmark and the
submit the matter to the ICJ to determine whether or not the equidistance rule
Netherlands (they
should be applied in delimiting their continental shelves. The ICJ ruled that
mej teamed up
equidistance rule should not be applied, because (1) it is not customary IL and
against Germany)
(2) to apply the rule would result to an inequity since Germany has a shorter
concluded an
coastline compared to Denmark and the Netherlands. Delimitation is to be
agreement on their
effected by agreement in accordance with equitable principles, and taking
boundaries between their respective continental shelves on the basis of
account of all relevant circumstances, in such a way as to leave as much as
equidistance. This assumed that the areas claimed by the two were
possible to each Party all those parts of the continental shelf that constitute
coterminous and that Germany would follow the equidistance rule as well.
a natural prolongation of its land territory into and under the sea, without
65. Subsequently, Germany and Denmark, and Germany and the Netherlands
encroachment on the natural prolongation of the land territory of the other;
signed two special agreements to submit the disputes between them
If, in the application of this method, the delimitation left to the Parties areas that
concerning their delimitation of continental shelf boundaries in the North
overlap, these are to be divided between them in agreed proportions or, failing
Sea to the ICJ.
agreement, equally, unless they decide on a regime of joint jurisdiction, user, or
66. Germany Argues that
exploitation for the zones of overlap or any or part of them.
a. The delimitation of the continental shelf between the three states is
governed by the principle that each coastal State is entitled to a just
The Court also discussed why delimiting the continental shelf is important, and
and equitable share, taking into account the particular geographical
stated that the continental shelf is an area physically extending the territory of
situation in the North Sea (e.g. who has more coast line, etc).
most coastal States into a species of platform. Since the land is the legal source
b. Equidistance is not customary international law, and neither has it
of the power which a State may exercise over territorial extensions to seaward, it
been agreed upon by the parties.
must first be clearly established what features do in fact constitute such
67. Meanwhile, Denmark and the Netherlands argue that
extensions.
a. Equidistance rule has gained the status of customary international
law because of subsequent state practice.
DOCTRINE: Equidistance rule is not customary international law, and the
*NOTE: The three States are NOT asking the ICJ to draw the boundaries for them,
continental shelf must be delimited according to agreement of the three States.
and neither are they asking it to prescribe the methods to be employed for
delimitation. They’re really just fighting over whether equidistance rule should be
The Continental shelf is an extension of the territory of a coastal state seaward
used or not.
because it is an extension of soil and subsoil.
ISSUE/s:
FACTS: 23. WoN the court should apply the equidistance rule in delimiting their
60. Germany and the Netherlands agreed on partial delimitation, and Germany continental shelves –NO, because opinion juris is lacking and therefore it is
and Denmark also agreed on a partial delimitation. not customary international law.
61. However, Germany, Denmark, and the Netherlands failed to reach an

RULING: Judgment in question is affirmed.
RATIO:
129. Equidistance rule has not gained customarly law status.
130. Moreover, applying the equidistance rule will result in inequity. In the case
of the North Sea in particular, where there is no outer boundary to the
continental shelf, it happens that the claims of several States converge,
meet and intercross in localities where, despite their distance from the
coast, the bed of the sea still unquestionably consists of continental
shelf.
131. A study of these convergences, as revealed by the maps, shows how
inequitable would be the apparent simplification brought about by a
delirnitation which, ignoring such geographical circumstances, was
based solely on the equidistance method.
132. Equality is to be reckoned within the same plane, and it is not such natural
inequalities as these that equity could remedy. But in the present case there
are three States whose North Sea coastlines are in fact comparable in
length and which, therefore, have been given broadly equal treatment
by nature except that the configuration of one of the coastlines would, if
the equidistance method is used, deny to one of these States treatment
equal or comparable to that given the other two. Here indeed is a case
where, in a theoretical situation of equality within the same order, an
inequity is created. What is unacceptable in this instance is that a State
should enjoy continental shelf rights considerably different from those of its
neiglibours merely because in the one case the coastline is roughly convex
in form and in the other it is markedly concave, although those coastlines
are comparable in length. It is therefore not a question of totally
refashioning geography whatever the facts of the situation but, given a
geographical situation of quasi-equality as between a number of States, of
abating the effects of an incidental special feature from which an
unjustifiable difference of treatment could result.
133. Delimitation is to be effected by agreement in accordance with
equitable principles, and taking account of all relevant circumstances, in
such a way as to leave as much as possible to each Party all those parts
of the continental shelf that constitute a natural prolongation of its land
territory into and under the sea, without encroachment on the natural
prolongation of the land territory of the other;
a. If, in the application of this method, the delimitation left to the
Parties areas that overlap, these are to be divided between them
i. in agreed proportions or, failing agreement,
ii. equally,
iii. unless they decide on a regime of joint jurisdiction, user,
or exploitation for the zones of overlap or any or part of
them;
134. In the course of the negotiations, the factors to be taken into account are:
a. The general configuration of the coasts of the Parties, as well as
the presence of any special or unusual features;
b. So far as known or readily ascertainable, the physical and
geological structure, and natural resources, of the continental shelf
areas involved;
c. The element a reasonable degree of proportionality, which a
delimitation carried out in accordance with equitable principles
ought to bring about between the extent of the continental shelf
areas appertaining to the coastal States and the length of its coast
measured in the general direction of the coastline, account being
taken for this purpose of the effects, actual or prospective, of any
other continental shelf delimitations between adjacent States in the
same region.
135. REGARDING CONTINTENTAL SHELF: The institution of the
continental shelf has arisen out of the recognition of a physical fact; and the
link between this fact and the law, without which that institution would
never have existed, remains an important element for the application of its
legal régime. The continental shelf is, by definition, an area physically
extending the territory of most coastal States into a species of platform
which has attracted the attention first of geographers and hydrographers and
then of jurists.
136. Thc contiguous zone and the continental shelf are in this respect
concepts of the same kind. In both instances the principle is applied that
the land dominates the sea; it is consequently necessary to examine
closely the gcographical configuration of the coastlines of the countries
whose continental shelves are to be delimited. This is one of the rensons
why the Court does not ignore these matters; for, since the land is the legal
source of the power which a State may exercise over territorial
extensions to seaward, it must first be clearly established what features
do in fact constitute such extensions. Above all is this the case when what
is involved is no longer areas of sea, such as the contiguous zone, but
stretches of submerged land; for the legal regime of the continental
shelf is that of a soil and a subsoil, two words evocativc of the land and
not of the sea.
137. In a sea with the particular configuration of the North Sea, and in view of
the particular geographical situation of the Parties' coastlines upon that sea,
the methods chosen by them for the purpose of fixing the delimitation
of their respective areas may happen in certain localities to lead to an
overlapping of the areas appertaining to them. The Court considers that
such a situation must be accepted as a given fact and resolved either by an
agreement. If that fails, by an equal division of the overlapping areas, or
by agreements for joint exploitation, the latter solution appearing
particularly appropriate when it is a question of preserving the unity of a
deposit (as in, like a mineral deposit in the subsoil).
 014 CASE CONCERNING DELIMITATION OF THE MARITIME
BOUNDARY IN THE GULF OF MAIN AREA
CANADA V. UNITED STATES OF AMERICA (HIRANG)
October 12, 1984| Internation Court of Justice| Acquisition and transfer of Territorial
Soveriegnty
PETITIONER: CANADA
RESPONDENTS: UNITED STATES OF AMERICA
SUMMARY: The dispute originated from the 1960’s where petroleum
exploration had begun. The dispute involves the delimitation of the Gulf of
Maine specially that of the Georges Bank, because of its resources and natural
importance. Both USA and Canada have been in a long negotiation to find an
amicable agreement between them however, such failed, and now the dispute is
submitted before the ICJ. Both of them agree that the delimitation must be made
in accordance with the equitable rules and principles of international law.
However, they have different views on how it would apply. Canada believes that
the geographic adjacency constituted the basis of the title of the coastal State to
the continental shelves. USA on the other hand provided that the coasts must be
differentiated between a primary coast and secondary coast. Primary coasts are
those which follow the mainland coast while the seconday coasts diviates from
it. The issue before the court is What rules and principles of international law
applies in the delimitation. The ICJ opposed the views of both Canada and USA.
With regard to the contention of Canada, ICJ stated that it is not necessarily the
adjancency of the continental shelves to the coastal State which gives the State
jurisdiction over it. It is international law which gives the State a legal title over
an adjacent continental shelf. With regard to the USA, the ICJ stated that such
distinction cannot be appretiated as it only provides for assertions without giving
any convincing evidence to show the international rule which was applied.
Therefore, following customary international law which states that
delimitation of Continental Shelves must be based on the agreement of the
parties involve and in case the agreement fails, the delimitation must be
based on the equitable rules and principles of international law, the ICJ did
not follow the proposal of the two parties and made its own independent
method of delimitation. The ICJ applied a more neutral approach and turned the
case to a criterion especially derived from geography with the aim of an equal
division of the areas where the maritime projections of the coasts of the
States between which delimilitation is to be effected converge and overlap
DOCTRINE: Delimitation of Continental Shelves and Fisheries Zone must be
based on the agreement of the parties involve. In case the agreement fails, the
delimitation must be based on the equitable rules and principles of international
law.
FACTS:
1. The United States of America and Canada are neighbors on the North
American continent. Canada lies north of the United States, except for the
state of Alaska.
2. The United States and Canada have asked this Court to resolve a dispute
over the location of their maritime boundary off the east coast of North
America.
a. Such dispute originated in the 1960s, as soon as the petroleum
exploration had began, specially with regard to the location of
Georges Bank (part of the gulf of main) on account of the
potential resources of its subsoil and the economic imporatance
of its fisheries. The dispute originated as a dispute with regard
to the delimitation of the constinental shelf and subsequently to
the fisheries zone.
3. The Court is requested to decide, in accordance with the principles and
rules of international law applicable in the matter as between the
Parties, the following question :
a. What is the course of the single maritime boundary that
divides the continental shelf and fisheries zones of Canada and
the United States of America.
b. In deciding the case, both parties agreed that rules and
principles of international law should govern maritime
delimitations
i. Canada: The delimitation must be made in accordance
with the applicable rule in conformity with equitable
principles.
ii. USA: The delimitation should be based on applicable
principles and rules of international law.
4. Canada’s view:
a. Canada was convinced that the concept of geographic adjacency
constituted the "basis of the title" of the coastal State to the
partial extension of its jurisdiction to the continental shelf and
the waters of which it formed the bed. (Equitable View)
5. USA’s view:
a. It has sought support for its contentions in the distinction
between coasts defined as "primary", simply because they
follow the general direction of the mainland coastline as a
whole, or are parallel to it, and coasts defined as "secondary",
simply because they deviate from that direction. (Practical
View)
b. United States has purported to establish the principle of the
preferential nature of the relationship between "primary" coasts
and the maritime and submarine areas situated frontally before
them. In terms of practical consequences, this preferential
 relationship should allegedly prevail over the relationship with
"secondary" coasts, even if these are closer
6. They have agreed that both of them shall accept as final and binding upon
them the decision of the Chamber since that they have been unable to
resolve by negotiation the differences between them concerning the
delimitation of the continental shelf and the fisheries zones of Canada
and the United States of America in the Gulf of Maine area.
7. Previous Proposals of the United States of America:
a. In 1976, it proposed that the line be made based on the criterion of
natural and ecological factors. Its line corresponded approximately
to the line of the greatest depths, leaving German Bank to Canada
and George Bank to the United States.
i. The court opposed to this as although it was inspired with
the objective of distributing fishery resources, such was
too biased in favor of only the fishery aspect.
b. In 1982 the United States proposed a second line with the general
direction of the coast as its central idea, the criterion applied being
that of the frontal projection of the primary coastal front. This
application resulted in a perpendicular to the general direction of
the coastline, adjusted however to take account of various relevant
circumstances, in particular such ecological circumstances as the
existence of fishing banks.
i. It was rejected by the Court stating that it is almost an
essential condition for the use of such method that the
boundary to be drawn should concern two countries
whose territories lie successively along a more or less
rectilinear coast, for a certain distance at least. (US and
Canada are not in such orientation)
8. Previous Proposals of Canada:
a. In 1976 and 1977, Canada proposed that the line be made using the
equidistance method. In 1976 proposal was considered as the Strict
Equidistance Method while the 1977 one was considered as the
equidistance line corrected on account of the special
circumstances.
i. The chamber opposed to these proposals because the
method of delimitation used by Canada disregarded the
relationship of lateral adjacency between other parts of
the coast.
ii. The Canadian line fails to allow for new relationship,
which is nevertheless the most characteristic feature of the
objective situation in the context of which the delimitation
is to be effected.
ISSUE/S: What applicable international rules and principles shall govern the
delimitation of the Gulf of Maine – ICJ ruled that the international rule and
principle that would govern is the Fundametal Norm of Customary
International which applies whether there is an agreement or not. (The ICJ
made its own delimitation independent of the proposals of Canada and USA)
RULING: That the course of the single maritime boundary that divides the
continental shelf and the exclusive fisheries zones of Canada and the United States of
America in the Area referred to in the Special Agreement concluded by those two
States on 29 March 1979 shall be defined by geodetic lines connecting the points
specified.
RATIO:
1. In determining the applicable international rules and principles that shall
govern, the court first looked at the Convention on the Continental Shelf of
29 April 1958, which both Parties have in time ratified and which they
acknowledge to be in force between them.
2. Art 6 par 1 and 2 of the Convention provided:
Par 1: 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
isjustified 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.
Par 2: 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 isjustified by special circumstances, the boundary shall be
determined by application of the principle of equidistance from the
nearest point of the baselines from which the breadth of the
territorial sea of each State is measured."
3. These two provisions provide that any delimitation of the continental
shelf effected unilaterally by one State regardless of the views of the
other State or States concerned is in international law not opposable to
those States
4. The Court has noted that Article 6 of the 1958 Convention are
principles already clearly affirmed by customary international law
which, for that reason, are undoubtedly of general application, valid for
al1 States and in relation to al1 kinds of maritime delimitation.
 a. Several cases regarding delimitation of continental shelves were
cited including the North Sea Continental Shelf cases. All of them
basically provided that “when agreement fails between the
parties, the delimitation must be based on equitable rules and
principles of international law”
5. In line with this the Court provided that:
a. View of Canada – Court acknowledges that in most cases this
concept can be credited with the ability to express, perhaps better
than that of natural prolongation, the link between a State's
sovereignty and its sovereign rights to adjacent submerged land. It
can alro be acknowledged to express correctly the link between the
State's territorial sovereignty and its sovereign rights over waters
covering such submerged land. It should not be forgotten,
however, that "legal title" to certain maritime or submarine
areas is always and exclusively the effect of a legal operation.
The same is true of the boundarv of the extent of the title. That
boundary results from a rule of law, and not from any intrinsic
merit in the purely physical fact. In the Court’s opinion it is
therefore correct to Say that international law confers on the
coastal State a legal title to an adjacent continental shelf or to a
maritime zone adjacent to its coasts; it would not be correct to
say that international law recognizes the title conferred on the
State by the adjacency of that shelf or that zone, as if the mere
natural fact of adjacency produced legal consequences.
b. View of United States: - The Court has opposed both in
geography and law the distinction made between the primary and
secondary coast. The Court held that such view only provides for
preconceived assertions without providing any convincing
demonstration of the existence of the international rule applied.

6. As a result, the ICJ applied a more neutral approach and turned the case to a
criterion especially derived from geography with the aim of an equal
division of the areas where the maritime projections of the coasts of the
States between which delimilitation is to be effected converge and
overlap
 015 LIBYA/MALTA CONTINENTAL SHELF CASE (ARIELLE)
June 3, 1985 | Acquisition and Transfer of Territorial Sovereignty / Delimitation of
Continental Shelf
PETITIONER: Libya / Malta
RESPONDENTS:
SUMMARY: Libya and Malta wanted to settle the dispute between them
concerning the delimitation of their continental shelves. Libya posited the view
that the delimitation should start from the rift zone, while Malta claimed that the
starting point of the delimitation process should be the equidistance line. The
Court rejected both views. As to Libya’s claim, the Court said that the law only
enables a State to claim a continental shelf of 200 miles or more from its coast
and in this case, the distance between the coasts of both parties is less than 400
miles, which means that no geophysical feature can lie more than 200 miles
from each of their coasts. For Malta’s argument that the equidistance line should
be the starting point, the Court held that the equidistance principle is not the
only method that can be used. The Court also cannot consider Malta’s view that
a delimitation should be influenced by the relative economic position of the two
States in question. In order to apply the equitable principles which were elicited
by the taking account of the relevant circumstances, the Court proceeds by
stages; it begins by making a provisional delimitation, which it then compares
with the requirements derived from other criteria. (Please see page 3 for the
summary of the Court’s conclusions.)
DOCTRINE: The delimitation is to be effected in accordance with equitable
principles.
FACTS:
6. The Special Agreement concluded between Libya and Malta is submitted to
the Court for the purpose of settling the dispute between them concerning
the delimitation of their respective continental shelves.
7. Malta’s position is that the applicable principles and rules are to be
implemented in practice by the drawing of a specific line (median line),
while Libya furthers the position that the Court’s task does not extend to the
actual drawing of the delimitation line.
8. The Special Agreement relates only to areas of continental shelf which
appertain to the parties, to the exclusion of areas which might pertain to a
third state. Although the parties submitted that the Court is not limited to
the area in which theirs are the sole competing claims, the court does not
regard itself as free to do so, because of the interest of Italy, which
submitted an application for permission to intervene under Art. 62 of the
Statute, which the court was unable to grant.
9. The Court found that the geographical scope of the decision must be limited
and confined to the area which, according to information supplied by Italy,
that State has no claims to continental shelf rights. Thus, the Court ensures
to Italy the protection which it sought to obtain by intervening.
10. In view of these claims, the Court limits the area within which it will give
its decision, on the east by the 15 10’ E meridian, including also that part of
the meridian which is south of the 34 30’ N parallel, and on the west by
excluding a pentagonal area bounded on the east by the 13 50’ E meridian.
11. The parties have no grounds for complaint because by expressing a negative
opinion on the Italian Application to intervene, they had shown their
preference for a restriction in the geographical scope of the judgment which
the Court would be required to deliver.
12. However, two parties agree that the dispute is to be governed by customary
international law. Malta is a party to the Geneva Convention on the
Continental Shelf, but Libya is not. Both parties though have signed the
1982 UNCLOS, but that Convention has not yet entered into force.
13. Both parties are in accord that some of its provisions constitute the
expression of customary law, but holding different views as to which
provisions have this status. Because of this, it is the Court’s duty to consider
how far any of its provisions may be binding upon the parties as a rule of
customary law.
14. The Court notes that the UNCLOS sets a goal to be pursued, namely, “to
achieve an equitable solution” but is silent as to the method to be followed
to achieve it, leaving it to States themselves, or to the courts.
15. However, on the legal basis of title to continental shelf rights, the views of
the parties are irreconcilable. For Libya, the natural prolongation of the land
territory into the sea remains the fundamental basis of legal title to
continental shelf areas. For Malta, continental shelf rights are no longer
defined in the light of physical criteria; they are controlled by the concept of
distance from the coast.
ISSUE/s:
1. WoN the Court is barred by the terms of the Special Agreement from
indicating a delimitation line – NO, the Court can provisionally draw a
median line.
RULING: WHEREFORE, the decision of the CTA is REVERSED.
RATIO:
1. For the Court, the principles and rules underlying the regime of exclusive
economic zone cannot be left out of consideration in the present case, which
relates to the delimitation of the continental shelf.
2. The two are linked and one of the relevant circumstances to be taken into
account for the delimitation of the continental shelf of a State is the legally
permissible extent of the exclusive economic zone pertaining to that same
State.
3. The institution of the exclusive economic zone, with its rule on entitlement
by reason of distance, is shown by the practice of States to have become a
part of customary law; and although the continental shelf and the exclusive
 economic zone are different, the rights which the exclusive economic zone the only permissible point of departure.
entails over the sea-bed of the zone are defined by reference to the regime 13. The Parties agree that the delimitation of the continental shelf must be
laid down for the continental shelf. effected by the application of equitable principles in all the relevant
4. Although there can be a continental shelf where there is no exclusive circumstances in order to achieve an equitable result. The Court lists these
economic zone, there cannot be an exclusive economic zone without a principles:
corresponding continental shelf. a. The principle that there is to be no question of refashioning geography;
5. Within 200 miles of the coast, natural prolongation is in part defined by b. The principle of non-encroachment by one party on areas appertaining to
distance from the shore. The concepts of natural prolongation and distance the other;
are not opposed but complementary; both remain essential elements in the c. The principle of the respect due to all relevant circumstances;
d. The principle that equity does not necessarily imply equality and that
juridical concept of the continental shelf. The Court is thus unable to accept
there can be no question of distributive justice.
the Libyan contention that distance from the coast is not relevant for the
14. Although there is no closed list of considerations which a court may invoke,
decision of this case.
the Court emphasizes that the only ones which will qualify for inclusion
6. Libya’s argument is based on the existence of a “rift zone” in the region of
are those which are pertinent to the institution of the continental shelf
the delimitation. From Libya’s contention that the natural prolongation in
as it has developed within the law, and to the application of equitable
the physical sense of the land territory into the sea is still a primary basis of
principles to its delimitation.
title to continental shelf, it would follow that if there is a fundamental
15. The Court then finds Libya’s argument that the landmass provides the legal
discontinuity between the shelf area adjacent to one party and the shelf area
justification of entitlement to continental shelf rights, such that a State with
adjacent to the other, the boundary should lie along the general line of that
a greater landmass would have a more intense natural prolongation.
fundamental discontinuity.
16. The Court cannot consider Malta’s view that a delimitation should be
Libya’s Argument:
influenced by the relative economic position of the two States in question.
7. According to Libya, in this case there are two distinct continental shelves
17. The Court notes that the delimitation which will result from the application
divided by what it calls the “rift zone” and the delimitation should be
of the present judgment is not so near to the coast of either party as to make
carried out in the rift zone.
these questions a particular consideration. Malta has also drawn a
8. The Court takes the view that since the development of the law enables a
distinction between island States and islands politically linked to a mainland
State to claim continental shelf up to as far as 200 miles from its coast,
State. In this connection, the Court merely notes that Malta being
whatever the geological characteristics of the corresponding sea bed and
independent, the relationship of its coasts with the coasts of its neighbors is
subsoil, there is no reason to ascribe any role to geological or geophysical
different from what it would be if it were part of the territory of one of
factors within that distance.
them.
9. Since in this case the distance between the coasts of the parties is less than
18. The Court also rejects Malta’s other argument in that the sovereign equality
400 miles, so that no geophysical feature can lie more than 200 miles from
of States, whereby the maritime extensions generated by the sovereignty of
each coast, the rift zone cannot constitute a fundamental discontinuity
each State must be of equal juridical value, whatever the length of the
terminating the southward extension of the Maltese shelf and the
coasts.
northward extension of the Libyan as if it were some natural boundary.
19. The Court considers that if coastal states have an equal entitlement to their
10. The need to interpret the evidence against the Libyan argument would
continental shelves, this does not imply an equality in the extent of these
compel the Court to first make a determination upon a disagreement
shelves, and thus reference to the length of coasts as a relevant
between scientists of distinction as to the more plausibly correct
consideration cannot be excluded a priori.
interpretation of incomplete scientific data. The Court therefore rejects the
20. The Court then considers the role to be assigned in the present case to
rift zone argument of Libya.
proportionality, Libya having attached considerable importance to this
Malta’s Argument:
factor.
11. Malta considers that the distance principle requires that, as a starting point
21. According to jurisprudence, proportionality is one possibly relevant factor
of the delimitation process, consideration must be given to an
among several others to be taken into account, without ever being
equidistance line, subject to verification of the equitableness of the
mentioned among the principles and rules of international law applicable to
result achieved by this initial delimitation.
delimitation.
12. The Court is unable to accept that even as a preliminary step towards
22. Libya’s argument, however, goes further. Once the submission relating to
the drawing of a delimitation line, the equidistance method is one which
the rift zone has been dismissed, there is no other element in the Libyan
must be used. It is neither the only appropriate method of delimitation, nor
submissions, apart from the reference to the lengths of coastline, which is
 able to afford an independent principle and method for drawing the not extending more than 200 miles from the coast of the party
boundary. concerned, no criterion for delimitation of shelf areas can be
23. The Court is of the view that to use the ratio of coastal lengths as self derived from the principle of natural prolongation in the physical
determinative of the seaward reach and area of continental shelf proper to sense
each, is to go far beyond the use of proportionality as a test of equity, in the 2. The circumstances and factors to be taken into account in achieving an
sense employed in the case concerning the Continental Shelf equitable delimitation are the following:
(Tunisia/Libyan Arab Jamahiriya). a. The general configuration of the coasts of the parties, their
24. In order to apply the equitable principles which were elicited by the taking oppositeness, and their relationship to each other within the general
account of the relevant circumstances, the Court proceeds by stages; it geographical context
begins by making a provisional delimitation, which it then compares with b. The disparity in lengths of their coasts
the requirements derived from other criteria. c. The need to avoid any excessive disproportion between the extent of
25. Stating that the law applicable to the present dispute is based on the the continental shelf areas measured in the general direction of the
criterion of distance, the Court considers that the tracing of a median line coastlines
between the coasts of Malta and Libya, by way of a provisional step, is the 3. In consequence, an equitable result may be arrived at by drawing a
most judicious manner of proceeding with a view to the eventual median line every point of which is equidistant from the low-water
achievement of an equitable result. mark of the relevant coast of Malta, and the low-water mark of the
26. The equidistance method is not the only possible method, and it must be relevant coast of Libya.
demonstrated that it in fact leads to an equitable result - this can be 4. The adjustment of the median line referred to in paragraph c is to be
ascertained by examining the result to which it leads in the context of effected by transposing that line northwards through eighteen minutes of
applying other equitable principles to the relevant circumstances. latitude such transposed line then constituting the delimitation line between
27. One point argued is the considerable disparity in the lengths of the relevant the areas of continental shelf appertaining to Libya and Malta.
coasts. Here, the Court compares Malta’s coasts with the coasts of Libya
between Ras Ajdir and Ras Zarruq and notes that there is a marked disparity
between the lengths of these coasts 192 miles long. This is a relevant
circumstance which warrants an adjustment of the median line, to attribute a
greater area of shelf to Libya.
28. Another circumstance should be taken into consideration, which is the
southern location of the coasts of the Maltese islands, within the general
geographical context in which the delimitation is to be effected. The Court
points to a further reason for not accepting the median line, as an equitable
boundary: that this line is to all intents and purposes controlled on each
side, in its entirety, by a handful of salient points on a short stretch of the
coast.
29. The Court concludes that a shift of about two-thirds of the distance between
the Malta-Libya median line and the line located further north gives an
equitable result, and that the delimitation line is to be produced by
transposing the median line northwards.
Summary of the Court’s Conclusions:
The Court then finds that, with reference to the areas of continental shelf between the
coasts of the parties within the limits defined in the present judgment:
1. The principles and rules of international law applicable for the delimitation,
to be effected by agreement, of the areas of continental shelf pertaining to
Libya and Malta are as follows:
a. The delimitation is to be effected in accordance with equitable
principles
b. The area of continental shelf to be found to pertain to either party
 016 Fisheries Jurisdiction Case [UK v. Iceland] (Loyola)
July 25, 1974 | validity of delimitations
PETITIONER: United Kingdom of Great Britain and Northern Ireland
RESPONDENTS: Iceland
SUMMARY: Iceland sought to extend its exclusive fisheries jurisdiction from 12 to
50 miles around its shores. The United Kingdom challenged this extension of
jurisdiction, wherein UK relied upon an earlier treaty agreement between the parties
where the UK agreed to recognize Iceland’s twelve-mile exclusive fisheries
jurisdiction in exchange for Iceland’s agreement to submit all disputes over fisheries
jurisdiction to the ICJ. Iceland argued that it was not bound by this agreement to
submit all disputes to the ICJ because of changing legal circumstances in
international law. Iceland argued that the standard, default limit for exclusive
fisheries jurisdiction for states was typically now twelve miles. This was not the case
when Iceland first signed its agreement with the UK, however, and the agreement to
a twelve-mile limit then constituted a compromise for Iceland. Due to changing
trends in international law, Iceland argued that its previous agreement to the twelve-
mile compromise in exchange for ICJ jurisdiction was now void for lack of
consideration on the UK’s part.
The issues in this case are: WoN Iceland can extend its fishery zone from 12 to 50
miles – NO; WoN the agreement between Iceland and the UK play within the court’s
decision – YES; WoN the law of the high seas can be enforced in this case – YES
For the first issue, Iceland’s extension of its fishery zone is not permissible. A
fishery zone has been accepted to be 12 miles from its baseline and is treated as a
general practice accepted by the states. Although Iceland has preferential rights over
the fishery zone, it must reconcile it with the interests of the UK. For the second
issue, agreement between Iceland and UK, being signed is binding on both nations,
and also proves that Iceland accepted the 12-mile fishery jurisdiction and was
content with it. For the third issue, according to the UNCLOS, the freedom of the
high seas is to be exercised by all states. Although it was not established in a treaty,
states accepted this general rule of a 12 nautical mile fishery zone and given that
Iceland did not protest this rule, it thus gave its silent consent, making it law.
DOCTRINE: The validity of delimitations depends upon International Law. The
freedom of the high seas is made subject to the consideration that its utilization shall
be with reasonable regard to the interest of other states. Both concepts of “fishery
zone” and “preferential right” are crystallized into customary law. However,
preferential rights are implemented by agreement between states concerned, and it is
wholly inconsistent with the idea of excluding fishing activities of all other states
FACTS:
47. Iceland sought to extend its exclusive fisheries jurisdiction from 12 to 50
miles around its shores. The United Kingdom challenged this extension of
jurisdiction.
48. However, Iceland and the United Kingdom reached an agreement in 1961
stating that the United Kingdom would only recognize the 12-mile fishery
zone in exchange for Iceland’s agreement to submit all disputes over
fisheries jurisdiction to the ICJ.
49. Iceland argued that it was not bound by this agreement to submit all
disputes to the ICJ because of changing legal circumstances in
international law. It terminated the agreement in 1971 in which it
unilaterally set up its new fishery zone.
50. Iceland argued that the standard, default limit for exclusive fisheries
jurisdiction for states was typically now twelve miles. This was not the case
when Iceland first signed its agreement with the UK, however, and the
agreement to a twelve-mile limit then constituted a compromise for Iceland.
51. Due to changing trends in international law, Iceland argued that its previous
agreement to the twelve-mile compromise in exchange for ICJ jurisdiction
was now void for lack of consideration on the UK’s part. The law Iceland
passed to enact such a regulation dealt with the Scientific Conservation of
the Continental shelf.
ISSUE/s:
52. WoN Iceland has the right to extend its fishery zone from 12 miles to 50 miles
– NO, Iceland’s preferential rights must be reconciled with UK’s interests
53. WoN the agreement between Iceland and UK play within the court's decision –
YES, a signed agreement between two nations is binding
54. WoN the law of the high seas can be enforced on this case – YES, silent
consent was given to the 12-mile regulation in the UNCLOS
RULING: The Court is requested to adjudge and declare that compensation is due to
Nicaragua, the quantum thereof to be fixed subsequently, and to award to Nicaragua
the sum of 370.2 million US dollars as an interim award.
RATIO:
First Issue
79. The court found that Iceland's extension of its fishery zone from 12 to 50
miles is not permissible and “opposable” to the UK.
80. Two concepts that arose from the second conference of the law of the Seas
was that a fishery zone, “between the territorial sea and the high seas,
within the coastal State could claim exclusive fisheries jurisdiction.”
81. This area has been accepted to be 12 miles from its baseline. In
international law, if a general practice is accepted by states and is practiced,
then this concept is law.
 82. The validity of delimitations depends upon International Law. The freedom
of the high seas is made subject to the consideration that its utilization shall
be with reasonable regard to the interest of other states.
83. Both concepts of “fishery zone” and “preferential right” are crystallized into
customary law. However, preferential rights are implemented by
agreement between states concerned, and it is wholly inconsistent with
the idea of excluding fishing activities of all other states.
84. The UK has substantial historic and special interests in the disputed waters,
so Iceland’s unilateral action is thus an infringement of the 1958 Geneva
Convention of the Law of the Seas, mandating the regard to the interests of
other states.
85. Iceland's preferential rights may vary immediately depending on the
circumstances, but they must be reconciled with the interests of the UK –
and this is to be done by negotiation.
2. A court takes the facts as is and bases their judgments on that. It also
provides a written account of the 12-mile fishery jurisdiction that many of
the states have consented to.
3. But most importantly it shows and proves the theory that “silence leads to
consent.” A state cannot follow certain regulations for years and then
change its views immediately because a new favorable opportunity has
risen. A state must speak up with any concern it may have and if it doesn't it
must then follow the rules it has agreed to.
4. Exclusive rights over the fishery zone must take into account interests of
other states.

Second Issue
1. The agreement between Iceland and UK does play a key factor in the court's
decision. A signed agreement/ treaty between two nations is binding
agreement that must be upheld between nations.
2. This agreement also proves and shows that Iceland accepted the 12-mile
fishery zone jurisdiction and was content with it. Thus the United Kingdom
has two factors that play favorably in the courts eyes:
a. The facts of the case line up with the International Law and
An agreement was made between two nations that is consistent
with what International Law would allow.

Third Issue
1. According to the United Nations Conference on the Law of the Seas
(UNCLOS), it declared freedom of the high seas and this freedom is to
be exercised by all states.
2. However, nothing arouse from these conferences concerning fishery
jurisdiction and where it stops. All that was confirmed was a zone between
the territorial zone and the high sea is where fishery jurisdiction stops.
3. Although it was not established in a treaty, states accepted this general rule
of a 12 nautical mile fishery zone and given that Iceland did not protest this
rule, it thus gave consent to it.
4. In other words, although there was no written rule for fishery jurisdiction,
silent consent was given to the 12-mile regulation thus making it law.

NOTES:
1. The Court's ruling in favor of the United Kingdom is important when it
comes to international law. It shows that the courts follow the rules and
laws exactly as stated or practice and does not judge based on what is to
come (a law change).
 017 PEOPLE v. TULIN (Marcos)
Aug. 30, 2001 | Melo, J. | Acquisition and Transfer of Territorial Sovereignty - FACTS:
Piracy 68. M/T Tabangao is a cargo vessel owned by PNOC Shipping and Transport
Corporation (PNOC).
69. It was loaded with barrels of kerosene, gasoline, diesel oil having a total
PETITIONER: People of the Philippines
value of Php 40,426, 793.87, and was sailing off the coast of Mindoro near
RESPONDENTS: Roger P. Tulin, Virgilio I. Loyola, Cecilio O. Changco,
Silonay Island.
Andres C. Infante, Cheong San Hiong, and John Does
70. The vessel, manned by 21 crew members, was suddenly boarded by 7 fully
armed pirates led by Emilio Changco (Emilio). They were armed with
SUMMARY: M/T Tabangao is a cargo vessel owned by PNOC Shipping and
rifles, handguns, and bolos.
Transport Corporation and it was loaded with barrels of kerosene, gasoline, and
71. The pirates detained the crew and took complete control of the vessel.
diesel oil. As it was sailing off the coast of Mindoro near Silonay Island, the
72. The name “M/T Tabangao” was painted over with black paint with the
vessel was suddenly boarded by 7 fully armed pirates led by Emilio Changco.
name “Galilee”.
The name M/T Tabangao was painted over with black paint with the name
73. The crew was forced to sail to Singapore, while sending misleading radio
Galilee. The crew was forced to sail to Singapore, while sending misleading
messages to PNOC that the ship was undergoing repairs.
radio messages to PNOC that the ship was undergoing repairs. It anchored about
74. PNOC, after losing radio contact, reported the disappearance of the vessel
10-18 nautical miles from Singapore’s shoreline where another vessel called
to the Philippine Coast Guard, and secured assistance of the Philippine Air
“Navi Pride” anchored beside it. Emilio Changco ordered the crew to transfer the
Force and Navy.
cargo to Navi Pride while Cheong San Hiong supervised the crew of Navi Pride
75. On March 9, 1991, the ship arrived in the vicinity of Singapore and cruised
in receiving the cargo. Once the transaction was complete, the vessel went back
around the area to await another vessel. It however failed to arrive and they
to the Philippines. It arrived at Batangas and the members of the crew were
were forced to return back to the Philippines, arriving at Batangas where it
released in 3 batches, with the stern warning not to report the incident to
remained at sea.
government authorities for a period of 2 days, otherwise they would be killed.
76. On March 28, 1991 the vessel again sailed to and anchored about 10-18
The Chief Engineer, accompanied by the members of the crew, called the office
nautical miles from Singapore’s shoreline where another vessel called
of PNOC to report the incident. A series of arrests were made and soon after, an
“Navi Pride” anchored beside it. Emilio ordered the crew to transfer the
information was filed charging against them qualified piracy or violation of PD
cargo to Navi Pride. Cheong San Hiong supervised the crew of Navi Pride
532. They pleaded not guity to the charge. Tulin, Infante, Loyola, and Changco
in receiving the cargo. The transfer was completed on March 30, 1991.
gave a defense of denial. Hiong on the other hand claimed that he did not know
77. M/T Tabangao arrived at Batangas and on April 10, the members of the
that M/T Tabangao was raided by pirates. He maintained that his company was
crew were released in 3 batches with the stern warning not to report the
then dealing with a certain Paul Gan who offered to sell to them bunker oil, and
incident to government authorities for a period of 2 days, otherwise they
was just asked to supervise the ship-to-ship transfer. The trial court convicted
would be killed.
Tulin, Loyola, Infante and Changco as principals, and Hiong as accomplice, to
78. The Chief Engineer, accompanied by the members of the crew, called the
the said crime. The matter was then elevated to the Supreme Court. Hiong argues
office of PNOC to report the incident. The crew members were brought to
that PD 532 refers to Philippine Waters and that he was convicted for acts done
the Coast Guard office for investigation. The incident was also reported to
outside Philippine waters or territory. The issue is WoN Hiong can be convicted
the NBI, where their sworn statements regarding the incident were given.
of the crime of piracy even if the acts allegedly committed were done outside
79. The accussed were arrested:
Philippine waters and territory? – YES. The attack on and seizure of "M/T
- Tulin – arrested at U.K. Beach, Balibago, Calatagan, Batangas.
Tabangao" and its cargo were committed in Philippine waters. PD 532
- Infante, Jr. and Loyola – arrested by chance at Aguinaldo Hi-way
requires that the attack and seizure of the vessel and its cargo be committed
- Hiong and Emilio Changco – at the lobby of Alpha Hotel in Batangas
in Philippine waters. The disposition by the pirates of the vessel and its cargo is
City.
still deemed part of the act of piracy, hence, the same need not be committed in
80. An information was filed, charging against them qualified piracy or
Philippine waters.
violation of PD 532. They pleaded not guity to the charge.
81. Tulin, Infante, Loyola, and Changco gace a defense of denial.
DOCTRINE: Piracy is a reprehensible crime against the whole world. It falls
82. Hiong on the other hand claimed that he did not know that M/T Tabangao
under Title One of Book Two of the Revised Penal Code. As such, it is an
was raided by pirates. He maintained that his company was then dealing
exception to the rule on territoriality in criminal law.
with a certain Paul Gan who offered to sell to them bunker oil.
 83. According to him, he was assigned to supervise a ship-to-ship transfer of
diesel oil off the port of Singapore. He was told that M/T Galilee would be
making the transfer. He wasn’t able to ask the full name of Changco nor did
he ak for the latter’s personal card; he only knew him to be “Captain
Bobby”.
84. Upon completion of the transfer, he handed the payment to Paul Gan and
thereafter reported the quality and quantity of the cargo. The transaction
occurred twice, and Paul Gan was paid in full at the second transfer.
85. He was at the Alpha Hotel because Changco intimated to him that he had
four vessels and wanted to offer its cargo to cargo operators. He was asked
to act as a broker but he later on found our that the vessels were not
arriving. He was thereafter arrested by NBI agents.
86. The trial court convicted Tulin, Loyola, Infante and Changco as principals,
and Hiong as accomplice, to the said crime.
87. The matter was then elevated to the Supreme Court.
88. Hiong argues that PD 532 refers to Philippine Waters and that he was
convicted for acts done outside Philippine waters or territory. He had not in
any way participated in the seajacking and that he was not awared that the
vessel and its cargo were pirated.
89. He also contends that RA 7659 which amended Art. 122 of the RPC
impliedly superseded PD 532.
90. Art. 122, which was amended by RA 7659, provided that piracy must be
committed on the high seas and the Philippine waters BY ANY PERSON
NOT A MEMBER of its complement or passenger. PD 532 on the other
hand embraces ANY PERSON and the act must be done in Philippine
waters.
ISSUE/s: WoN Hiong can be convicted of the crime of piracy even if the acts
allegedly committed were done outside Philippine waters and territory? – YES,
because piracy is an exception to the rule on territoriality in criminal law.
RULING: WHEREFORE, finding the conviction of accused-appellants justified by
the evidence on record, the Court hereby AFFIRMS the judgment of the trial court in
toto.
RATIO:
138. RA 7659 neither superseded nor amended the provisions on piracy under
PD 532. There is no contradiction between the two laws. There is likewise
no ambiguity and hence, there is no need to construe or interpret the law.
139. All the presidential decree did was to widen the coverage of the law, in
keeping with the intent to protect the citizenry as well as neighboring states
from crimes against the law of nations.
140. Piracy is "among the highest forms of lawlessness condemned by the penal
statutes of all countries." For this reason, piracy under the Article 122, as
amended, and piracy under Presidential Decree No. 532 exist harmoniously
as separate laws.
141. As regards the contention that the trial court did not acquire jurisdiction
over the person of accused-appellant Hiong since the crime was committed
outside Philippine waters, suffice it to state that unquestionably, the attack
on and seizure of "M/T Tabangao" and its cargo were committed in
Philippine waters, although the captive vessel was later brought by the
pirates to Singapore where its cargo was off-loaded, transferred, and sold.
And such transfer was done under Hiong's direct supervision.
142. PD 532 requires that the attack and seizure of the vessel and its cargo
be committed in Philippine waters. The disposition by the pirates of the
vessel and its cargo is still deemed part of the act of piracy, hence, the same
need not be committed in Philippine waters.
143. Moreover, piracy falls under Title One of Book Two of the Revised Penal
Code. As such, it is an exception to the rule on territoriality in criminal
law. The same principle applies even if Hiong, in the instant case, were
charged, not with a violation of qualified piracy under the penal code but
under a special law, PD 532 which penalizes piracy in Philippine waters.
144. It is likewise, well-settled that regardless of the law penalizing the same,
piracy is a reprehensible crime against the whole world
145. Further, Hiong had failed to overcome the legal presumption that he
knowingly abetted or aided in the commission of piracy, received property
taken by such pirates and derived benefit therefrom.
146. The record discloses that a Hiong aided the pirates in disposing of the stolen
cargo by personally directing its transfer from "M/T Galilee" to "M/T Navi
Pride". He profited therefrom by buying the hijacked cargo.
147. Hiong also falsified th General Declaration and Crew List and if he had not
falsified said entries, the Singapore Port Authorities could have easily
discovered the illegal activities that took place and this would have resulted
in his arrest and prosecution in Singapore.
148. Hiong cannot deny knowledge of the source and nature of the cargo since
he himself received the same from "M/T Tabangao". Second, considering
that he is a highly educated mariner, he should have avoided any
participation in the cargo transfer given the very suspicious circumstances
under which it was acquired.
149. It cannot be correctly said that accused-appellant was "merely following the
orders of his superiors." The alleged order of Hiong's superior Chua Kim
Leng Timothy, is a patent violation not only of Philippine, but of
international law. Such violation was committed on board a
Philippine-operated vessel.
150. Moreover, the means used by Hiong in carrying out said order was equally
unlawful. He misled port and immigration authorities, falsified records,
using a mere clerk, Frankie Loh, to consummate said acts.
 BATCH 4 either State, nor the limitations of the jurisdiction of each to the occurrences which took
place on the respective ships would appear calculated to satisfy the requirements of justice
001 THE LOTUS CASE: FRANCE V. TURKEY (MATSUMURA) and effectively to protect the interests of the two States. It is only natural that each should
September 7, 1927 | Huber, MM | Criminal Jurisdiction be able to exercise jurisdiction and to do so in respect of the incident as a whole.

PETITIONER: Government of the French Republic, represented by M. Basdevant,
Professor at the Faculty of Law of Paris
RESPONDENTS: Government of the Turkish Republic, represented by His Excellency
Mahmount Essat Bey, Minister of Justice
SUMMARY: A collision occurred on the high seas between a French mail steamer
(Lotus) and a Turkish collier (Boz-Kourt). Basically they’re both steamships. Boz-Kourt
sank, and 8 Turkish nationals on board were killed. The 10 survivors of the Boz-Kourt,
including its captain, were taken to Constantinople (Turkey) on board the Lotus. In
Turkey, M. Demons, the officer on watch of the Lotus who is a French national, and the
captain of the Boz-Kourt, Hassan Bey, were charged with manslaughter by a Turkish
court. M. Demons was sentenced to 80 days of imprisonment and a fine of 22 Turkish
pounds. France protested this, demanding the release of M. Demons or the transfer of his
case to the French Courts.
Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent Court
of International Justice (PCIJ). According to France, the convention of Lausanne does not
allow Turkish courts to take cognisance of criminal proceedings directed against a French
citizen for crimes committed outside Turkey. Moreover that International law states that a
State is not entitled to extend the jurisdiction of their courts to crimes that happened
abroad even if the victim is a citizen of their State UNLESS stipulated in a special
agreement. Meanwhile Turkey contends that it has jurisdiction over the case.
There is no principle of international law, within the meaning of Article 15 of the
Convention of Lausanne which precludes the institution of the criminal proceedings under
consideration. Consequently, Turkey, by instituting, in virtue of the discretion which
international law leaves to every sovereign State, the criminal proceedings in question, has
not, in the absence of such principles, acted in a manner contrary to the principles of
international law within the meaning of the special agreement.
DOCTRINE:
First, a State cannot exercise its jurisdiction outside its territory unless an international
treaty or customary law permits it to do so.
Second, within its territory, a State may exercise its jurisdiction, in any matter, even if
there is no specific rule of international law permitting it to do so. In these instances,
States have a wide measure of discretion, which is only limited by the prohibitive
rules of international law. This applies to civil and criminal cases.
(Basically this means that under international law, if its a collision in the high seas
between 2 vessels of different nationalities, both have concurrent jurisdiction since the
vessel is basically an extension of their territory --under the second doctrine-- UNLESS
there is an international law which prohibits such)

The PCIJ ruled that first, a State cannot exercise its jurisdiction outside its territory unless
an international treaty or customary law permits it to do so. Second, within its territory, a
State may exercise its jurisdiction, in any matter, even if there is no specific rule of
international law permitting it to do so. In these instances, States have a wide measure of
discretion, which is only limited by the prohibitive rules of international law. This
applies to civil and criminal cases. In this case, the incident happened between 2 vessels.
While the principle of the freedom of the seas says that in the absence of any territorial
sovereignty upon the high seas, no State may exercise any kind of jurisdiction over foreign
vessels upon them, a corollary of this principle states that a ship on the high seas is
assimilated to the territory of the State the flag of which it flies, for, just as in its own
territory, that State exercises its authority upon it, and no other State may do so. Since, FACTS:
there no rule of international law in regard to collision cases to the effect that criminal 1. On August 2, 1926, just before midnight, a collision occurred between two
proceedings are exclusively within the jurisdiction of the State whose flag is flown, both
steamships in the high seas: a Turkey collier (Boz-Kourt), and a French
France and Turkey have concurrent jurisdiction over the case. The offence for which
Lieutenant Demons appears to have been prosecuted was an act of negligence or mail steamer (Lotus). Lotus was heading to Constantinople while Boz-
imprudence-having its origin on board the Lotus, whilst its effects made themselves felt on Kourt was heading to the north of Cape Sigri.
board the Boz-Kourt. These two elements are, legally, entirely inseparable, so much so 2. The Boz-Kourt was cut into two, sank, and 8 Turkish sailors and passengers
that their separation renders the offence non-existent. Neither the exclusive jurisdiction of died, while 10 were saved. At the time of the collision, the officer of the
 watch on the Lotus was Monsieur Demons (M. Demons), while the captain
of the Boz-Kourt was Hassen Bey —one of those who was saved.
3. Upon the arrival of the Lotus at Constantinople, the Turkish police
proceeded to hold an enquiry into the collision on board the Lotus. Then M.
Demons was requested by the Turkish authorities to go ashore to give
evidence.
4. Thereafter he was arrested without previous notice being given to the
French Consul-General. This arrest was characterised by the Turkish
authorities as an arrest pending trial.
5. The case was first heard by the Criminal Court of Stamboul. M. Demons
was able to be released on bail by paying 6,000 Turkish pounds.
6. The court ruled that M. Demons be sentenced to 80 days of imprisonment,
and a fine of 22 pounds. Hassan Bey, the captain of the Turkish ship, was
sentenced to a slightly more severe penalty.
7. France and its representatives in Turkey protested against the arrest. Some
demanded his release, while some believed that the case should be
transferred to the French Court.
8. Thereafter, France and Turkey signed a special agreement at Geneva in
accordance with Article 40 of the Statute, and Article 35 of the Rules of
Court.
9. On January 4, 1927, Turkey submitted to the Permanent Court of the
International Justice (PICJ) the question of jurisdiction which has arisen
between the two countries following the collision.
10. France asks that:
a. Under the Convention respecting conditions of residence and
business and jurisdiction signed at Lausanne on July 24, 1923, and
the principles of international law, jurisdiction to entertain criminal
proceedings against the officer of the watch of a French ship, in
connection with the collision which occurred on the high seas
between that vessel and a Turkish shop, belongs exclusively to the
French court.
i. The Convention of Lausanne construed in the light of
these circumstances and intentions, does not allow the
Turkish Courts to take cognizance of criminal
proceedings directed against a French citizen for crimes
or offences committed outside Turkey
ii. According to international law a State is not entitled, apart
from express or implicit special agreements, to extend the
criminal jurisdiction of its courts to include a crime or
offence committed by a foreigner abroad solely in
consequence of the fact that one of its nationals has been
a victim of the crime or offence.
iii. Acts performed in a merchant ship that is in the high seas
are under the jurisdiction of the court of the State whose
flag the vessel flies.
b. The court declare the Turkish judicial authorities were wrong in
prosecuting, imprisoning, and convicting M. Demons in
connection with the collision for it is against the Convention of
Lausanne and the principles of international law
i. The Turkish authorities, immediately before his
conviction, and when he had undergone detention about
equal to one half of the period to which he was going to
be sentenced, made his release conditional upon bail in
6,000 Turkish pounds.
c. Indemnity in reparation of the injury inflicted upon M. Demons be
granted at 6,000 Turkish pounds, as well as indemnity to be paid
by Turkey to France.
11. Meanwhile, Turkey asks that:
a. The jurisdiction of the case against M. Demon, in connection to the
collision, be given to the Turkish courts.
i. Vessels on the high seas form part of the territory of the
nation whose flag they fly, and in the case under
consideration, the place where the offence was committed
being the S.S. Boz-Kourt flying the Turkish flag, Turkey's
jurisdiction in the proceedings taken is as clear as if the
case had occurred on her territory-as is borne out by
analogous cases.
ISSUE/s:
1. WoN Turkey has jurisdiction over the criminal proceeding against M.
Demons —YES because there is no international law which prohibits
Turkey from having concurrent jurisdiction with France in a collision case
that happened in the high seas between their steamships.
RULING: Following the collision which occurred on August 2nd, 1926, on the high
seas between the French steamship Lotus and the Turkish steamship Boz-Kourt, and
upon the arrival of the French ship at Stamboul, and in consequence of the loss of the
Boz-Kourt having involved the death of eight Turkish nationals,Turkey, by
instituting criminal proceedings in pursuance of Turkish law against Lieutenant
Demons, officer of the watch on board the Lotus at the time of the collision, has not
acted in conflict with the principles of international law, contrary to Article 15 of the
Convention of Lausanne of July 24th, 1923, respecting conditions of residence and would only be tenable if international law contained a general prohibition to
business and jurisdiction States to extend the application of their laws and the jurisdiction of their
courts to persons, property and acts 'outside their territory, and if, as an
RATIO: exception to this general prohibition, it allowed States to do so in certain
1. Article 15 of the Convention of Lausanne respecting conditions of residence
specific cases. But this is certainly not the case under international law as it
and business and jurisdiction states that: "Subject to the provisions of
stands at present.
Article 16, al1 questions of jurisdiction shall, as between Turkey and the
7. In these circumstances, al1 that can be required of a State is that it
other contracting Powers, be decided in accordance with the principles of
should not overstep the limits which international law places upon its
international law”.
jurisdiction. Within these limits, its title to exercise jurisdiction rests in its
2. The Court considers that the words "principles of international law", as
sovereignty.
ordinarily used, can only mean international law as it is applied between al1
8. It follows from the foregoing that the contention of the French Government
nations belonging to the community of States. (Remember, since the text of
to the effect that Turkey must in each case be able to cite a rule of
the agreement is clear, it must be interpreted in its ordinary meaning
international law authorizing her to exercise jurisdiction, is opposed to the
according to the VCLT).
generally accepted international law to which Article 15 of the Convention
a. The French Government contends that the Turkish Courts, in order
of Lausanne refers. This contention would apply in regard to civil as well as
to have jurisdiction, should be able to point to some title to
to criminal cases
jurisdiction recognized by international law in favour of Turkey.
9. Though it is true that in al1 systems of law the principle of the territorial
b. On the other hand, the Turkish Government takes the view that
character of criminal law is fundamental, it is equally true that all or nearly
Article 15 allows Turkey jurisdiction whenever such jurisdiction
all these systems of law extend their action to offences committed outside
does not come into conflict with a principle of international law.
the territory of the State which adopts them, and they do so in ways which
3. The latter view seems to be in conformity with the speciaI agreement itself.
Vary from State to State. The territoriality of criminal law, therefore, is
According to the special agreement, therefore, it is not a question of
not an absolute principle of international law and by no means
stating principles which would permit Turkey to take criminal
coincides with territorial sovereignty.
proceedings, but of formulating the principles, if any, which might have
10. This situation may be considered from two different standpoints
been violated by such proceedings.
corresponding to the points of view respectively taken up by the Parties:
4. The rules of law binding upon States therefore emanate from their own free
a. The principle of freedom — in virtue of which each State may
will as expressed in conventions or by usages generally accepted as
regulate its legislation at its discretion, provided that in so doing it
expressing principles of law and established in order to regulate the
does not come in conflict with a restriction imposed by
relations between these co-existing independent communities or with a view
international law, would also apply as regards law governing the
to the achievement of common aims. Restrictions upon the independence of
scope of jurisdiction in criminal cases.
States cannot therefore be presumed.
b. Second Standpoint (the case didn’t give it a name) — the
5. Now the first and foremost restriction imposed by international law upon a
exclusively territorial character of law relating to this domain
State is that—failing the existence of a permissive rule to the contrary—it
constitutes a principle which, except as otherwise expressly
may not exercise its power in any form in the territory of another State. In
provided, would, ipso facto, prevent States from extending the
this sense jurisdiction is certainly territorial. It cannot be exercised by a
criminal jurisdiction of their courts beyond their frontiers ; the
State outside its territory EXCEPT by virtue of a permissive rule
exceptions in question, which include for instance extraterritorial
derived from international custom or from a convention
jurisdiction over nationals and over crimes directed against public
6. It does not, however, follow that international law prohibits a State
safety, would therefore rest on special permissive rules forming
from exercising jurisdiction in its own territory, in respect of any case
part of international law
which relates to acts which have taken place abroad, and in which it
cannot rely on some permissive rule of international law. Such a view
 i. Adopting for the purposes of the argument, this
standpoint, it must be recognized that, in the absence of a
treaty provision, its correctness depends upon whether
there is a custom having the force of law establishing it
11. Consequently, whichever of the two systems described above be adopted,
the same result will be arrived at in this particular case: the necessity of
ascertaining whether or not under international law there is a principle
which would have prohibited Turkey, in the circumstances of the case
before the Court, from prosecuting Lieutenant Demons.
France’s argument no 1: International law does not allow a State to take
proceedings with regard to offences committed by foreigners abroad, simply by
reason of the nationality of the victim
12. The Court does not think it necessary to consider the contention that a State
cannot punish offences committed abroad by a foreigner simply by reason
of the nationality of the victim. For this contention only relates to the case
where the nationality of the victim is the only criterion on which the
criminal jurisdiction of the State is based. This could only be used in the
present case if international law forbade Turkey to take into consideration
the fact that the offence produced its effects on the Turkish vessel and
consequently in a place assimilated to Turkish territory in which the
application of Turkish criminal law cannot be challenged, even .in regard to
offences committed there by foreigners. But no such rule of international
law exists.
13. It is certain that the courts of many countries, even of countries which have
given their criminal legislation a strictly territorial character, interpret
criminal law in the sense that offences, the authors of which at the moment
of commission are in the territory of another State, are nevertheless to be
regarded as having been committed in the national territory, if one of
the constituent elements of the offence, and more especially its effects,
have taken place there.
14. Consequently, once it is admitted that the effects of the offence were
produced on the Turkish vessel, it becomes impossible to hold that
there is a rule of international law which prohibits Turkey from
prosecuting Lieutenant Demons because of the fact that the author of
the offence was on board the French ship.
15. Since, as has already been observed, the special agreement does not deal
with the provision of Turkish law under which the prosecution was
instituted, but only with the question whether the prosecution should be
regarded as contrary to the principles of international law, there is no reason
preventing the Court from confining itself to observing that, in this case, a
prosecution may also be justified from the point of view of the so-called
territorial principle.
France’s Argument No 2: The State whose flag is flown has exclusive
jurisdiction over everything which occurs on board a merchant ship on the high
seas.
16. It is certainly true that—apart from certain special cases which are defined
by international law— vessels on the high seas are subject to no
authority except that of the State whose flag they fly.
17. In virtue of the principle of the freedom of the seas, that is to Say, the
absence of any territorial sovereignty upon the high seas, no State may
exercise any kind of jurisdiction over foreign vessels upon them. Thus, if a
war vessel, happening to be at the spot where a collision occurs between a
vessel flying its flag and a foreign vessel, were to send on board the latter
an officer to make investigations or to take evidence, such an act would
undoubtedly be contrary to international law.
18. But it by no means follows that a State can never in its own territory
exercise jurisdiction over acts which have occurred on board a foreign
ship on the high seas.
19. A corollary of the principle of the freedom of the seas is that a ship on the
high seas is assimilated to the territory of the State the flag of which it
flies, for, just as in its own territory, that State exercises its authority upon
it, and no other State may do so. Al1 that can be said is that by virtue of the
principle of the freedom of the seas, a ship is placed in the same position as
national territory, but there is nothing to support the claim according to
which the rights of the State under whose flag the vessel sails may go
farther than the rights which it exercises within its territory properly so
called.
20. It follows that what occurs on board a vessel on the high seas must be
regarded as if it occurred on the territory of the State whose flag the
ship flies. If, therefore, a guilty act committed on the high seas produces
its effects on a vessel flying another flag or in foreign territory, the
same principles must be applied as if the territories of two different
States were concerned, and the conclusion must therefore be drawn that
there is no rule of international law prohibiting the State to which the ship
on which the effects of the offence have taken place belongs, from
regarding the offence as having been committed in its territory and
prosecuting, accordingly, the delinquent.
21. This conclusion could only be overcome if it were shown that there was a
rule of customary international law which, going further than the principle
 stated above, established the exclusive jurisdiction of the State whose flag 31. This conclusion moreover is easily explained if the manner in which the
was flown. France was not able to show such customary international law. collision brings the jurisdiction of two different countries into play be
22. In regard to the teachings of most highly qualified publicists, it is no doubt considered.
true that al1 or nearly al1 writers teach that ships on the high seas are 32. The offence for which Lieutenant Demons appears to have been prosecuted
subject exclusively to the jurisdiction of the State whose flag they fly. was an act of negligence or imprudence-having its origin on board the
23. There is no lack of cases in which a State has claimed a right to prosecute Lotus, whilst its effects made themselves felt on board the Boz-Kourt.
for an offence, committed on board a foreign ship, which it regarded as These two elements are, legally, entirely inseparable, so much so that their
punishable under its legislation. separation renders the offence non-existent. Neither the exclusive
24. The cases in which the exclusive jurisdiction of the State whose flag was jurisdiction of either State, nor the limitations of the jurisdiction of each to
flown has been recognized would seem rather to have been cases in the occurrences which took place on the respective ships would appear
which the foreign State was interested only by reason of the nationality calculated to satisfy the requirements of justice and effectively to protect the
of the victim, and in which, according to the legislation of that State itself interests of the two States.
or the practice of its courts, that ground was not regarded as sufficient to 33. It is only natural that each should be able to exercise jurisdiction and to do
authorize prosecution for an offence committed abroad by a foreigner. so in respect of the incident as a whole. It is therefore a case of concurrent
25. The Court therefore has arrived at the conclusion that the second argument jurisdiction.
put forward by the French Government does not, any more than the first, 34. It must therefore be held that there is no principle of international law,
establish the existence of a rule of international law prohibiting Turkey within the meaning of Article 15 of the Convention of Lausanne which
from prosecuting Lieutenant Demons. precludes the institution of the criminal proceedings under consideration.
Consequently, Turkey, by instituting, in virtue of the discretion which
France’s Argument No. 3: Prosecutions only occur before the courts of the State international law leaves to every sovereign State, the criminal proceedings
whose flag is flown in question, has not, in the absence of such principles, acted in a manner
contrary to the principles of international law within the meaning of the
26. In the Court's opinion, this conclusion is not warranted.
special agreement.
27. Even if the rarity of the judicial decisions to be found among the reported
cases were sufficient to prove in point of fact the circumstance alleged by
the Agent for the French Government, it would merely show that States had
often, in practice, abstained from instituting criminal proceedings, and not
that they recognized themselves as being obliged to do so. For only if such
abstention were based on their being conscious of having a duty to abstain
would it be possible to speak of an international custom.
28. The alleged fact does not allow one to infer that States have been conscious
of having such a duty. On the other hand, as will presently be seen, there are
other circumstances calculated to show that the contrary is true.
29. So far as the Court is aware there are no decisions of international tribunals
in this matter.
30. The conclusion at which the Court has therefore arrived is that there is no
rule of international law in regard to collision cases to the effect that
criminal proceedings are exclusively within the jurisdiction of the State
whose flag is flown.
002 ATTORNEY GENERAL OF THE GOVERNMENT OF ISRAEL v.
EICHMANN (ARMAND)
December 11, 1961 |District Court of Jerusalem | Jurisdiction over war crimes
PETITIONER: Attorney General of the Government of Israel
RESPONDENTS: Adolf Eichmann
SUMMARY: Eichmann (one of Hitler’s high ranking generals) was tried before an
Israel Court for war crimes he allegedly committed during the Second World War –
more particularly genocide against he Jewish Race. The issue is WoN the Israel
Court have jurisdiction even if the acts were committed elsewhere? YES. When
a person commits a crime against the law of nations such as piracy (or in this case
genocide), he becomes an enemy to all mankind – a hostis humani generis. He places
himself beyond the protection of any state. It is in fact the moral duty of every state
to enforce the natural right to punish such criminals guilty of the most extreme
violations of the laws of nature so detrimental to the welfare of the international
community.
Thus, while as a general rule, criminal jurisdiction is territorial, the jurisdiction of a
state may extend to punishment of offenses against the laws of nations. Genocide has
already been recognized as such under various conventions – such as the Charter of
the Nuremberg Trial, the Convention on the Prevention of the Crime of Genocide
(under the UN), and various affirmations of the UN General Assembly. The
punishment of genocide is a matter if international concern condemned by all of the
civilized world. The same would apply to slavery, crimes against peace, and torture.
DOCTRINE: The universal principle of jurisdiction recognizes that a sovereign can
adopt criminal laws that apply to the person who has committed any crime of
universal nature (jus cogens, war crime, mass killing, etc) anywhere in the world
when the conduct is recognized by nations as being of universal concern.
FACTS:
55. Adolf Eichmann (defendant) was a German Nazi officer involved in the
internment and extermination of Jewish people during World War II. When
the war ended, Eichmann escaped to Argentina, where years later, he was
kidnapped by Israeli officers and forcibly brought to Israel for trial for war-
crime charges.
56. Eichmann challenged the Israeli court’s jurisdiction, arguing that the court
was not empowered to adjudicate the case against Eichmann because his
illegal kidnapping by Israeli agents violated international law.
57. The attorney general of Israel (plaintiff) contended that the legality of the
means of arrest and of the transfer of a fugitive were not relevant
jurisdictional issues for the court to address. Additionally, at the time of
Eichmann’s seizure, Argentina complained to the United Nations Security
Council (Security Council), alleging a violation of Argentina’s sovereignty
by Israel’s actions.
58. The Security Council issued a Resolution, recognizing that Israel’s conduct
would disrupt international relations if the conduct were permitted in the
future, and requesting that Argentina and Israel reach an agreement on the
settlement of the dispute.
59. As a result, before Eichmann’s indictment, Argentina and Israel settled the
issue, with Argentina clearing Israel of responsibility for any violations
related to Eichmann’s kidnapping. The Supreme Court of Israel then
considered Eichmann’s challenge to Israel’s jurisdiction.
60. The defense counsel submitted the following:
(a) that the Israel Law, by imposing punishment for acts done outside the boundaries
of the State and before its establishment, against persons who were not Israel
citizens, and by a person who acted in the course of duty on behalf of a foreign
country (“Act of State”), conflicts with international law and exceeds the powers of
the Israel Legislature;
(b) that the prosecution of the accused in Israel following his abduction from a
foreign country conflicts with international law and exceeds the jurisdiction of the
Court....
From the point of view of international law, the power of the State of Israel to enact
the Law in question or Israel’s “right to punish” is based, with respect to the
offences in question, on a dual foundation: the universal character of the crimes in
question and their specific character as intended to exterminate the Jewish people..
ISSUE/s:
14. WoN the Israel Court have jurisdiction even if the acts were committed
elsewhere? – YES. When a person commits a crime against the law of
nations such as piracy (or in this case genocide), he becomes an enemy to
all mankind – a hostis humani generis. He places himself beyond the
protection of any state.
RULING: Eichmann found guilty by the SC of Israel.
RATIO:
86. The court held, “The abhorrent crimes defined in this Law are not crimes
under Israel law alone. These crimes, which struck at the whole of mankind
and shocked the conscience of nations, are grave offenses against the law of
nations itself (delicta juris gentium). Therefore, so far from international
law negating or limiting the jurisdiction of countries with respect to such
crimes, international law is, in the absence of an International Court, in need
of the judicial and legislative organs of every country to give effect to its
criminal interdictions and to bring the criminals to trial. The jurisdiction to
try crimes under international law is universal”
87. It is superfluous to add that the “crime against the Jewish people,” which
constitutes the crime of “genocide”, is nothing but the gravest type of
“crime against humanity” (and all the more so because both under Israel law
and under the Convention a special intention is requisite for its commission,
an intention that is not required for the commission of a “crime against
humanity”). Therefore, all that has been said in the Nuremberg principles
about “crimes against humanity” applies a fortiori to crime against the
Jewish people.”
88. It is indeed difficult to find a more convincing instance of a just retroactive
law than the legislation providing for the punishment of war criminals and
perpetrators of crimes against humanity and against the Jewish people, and
all the reasons justifying the Nuremberg judgments justify eo ipse the
 retroactive legislation of the Israel legislator. ... The accused in this case is
charged with the implementation of the plan for the “final solution of the
problem of the Jews.”
89. The contention of learned counsel for the defense
that it is not the accused
but the State on whose behalf he had acted, who is responsible for his
criminal acts is only true as to its second part. It is true that under
international law Germany bears not only moral, but also legal,
responsibility for all the crimes that were committed as its own “acts of
State,” including the crimes attributed to the accused. But that responsibility
does not detract one iota from the personal responsibility of the accused for
his acts.
90. It is the moral duty of every sovereign state to enforce the natural right to
punish, possessed by the victims of the crime whoever they may be, against
criminals whose acts have violated in extreme for the law of nature or the
law of nations. By these pronouncements the father of international law laid
the foundations for the future definition of the crime against humanity as a
crime under the law of nations and to universal jurisdiction in such crimes.
91. The commission of particular acts, regardless of the character of the actors,
may be so detrimental to the welfare of the international society that its
international law may either clothe a State with the privilege of punishing
the offender, or impose upon it the obligation to endeavor to do so. In both
situations, it is not unscientific to declare that he is guilty of conduct which
the law of nations itself brands as internationally illegal. For it is by virtue
of that law that such sovereign acquires the right to punish and is also
burdened with the duty to prevent or prosecute.
92. The general doctrine recently expounded and called universality of
jurisdiction over war crimes which ahs the support of the United Nations
War Crimes Commissoin and according to which every independent State
has, under International Law, jurisdiction to punish not only pirates but also
war criminals in its custody, regardless of the nationality of the victim or of
the place where the offense was committed, particularly where, for some
reason, the criminal would otherwise go unpunished.
93. The crimes dealt with in this case are not crimes under Israel law alone, but
are in essence offences against the law of nations. Indeed, the crimes in
question are not a figment of the imagination of the legislator who enacted
the law for the punishment of Nazis and Nazi collaborators, but have been
stated and defined in that law according to a precise pattern of international
laws and convention which define crimes under the law of nations.
 003 ARREST WARRANT CASE
CONGO v. BELGIUM (MERILLES)
Month, date, year | Ponencia, J. | Criminal and Civil Jurisdiction
PETITIONER: Democratic Republic of Congo
RESPONDENTS: Belgium
SUMMARY: Belgium issued a warrant of arrest against Mr. Abdulaye Yerodia
Ndomasi , then Congo’s Minister for Foreign Affairs for violations of
international humanitarian law. Congo filed an application before the ICJ to
have the warrant discharged.
The ICJ ruled that the issuance of the warrant was a violation of customary
international law. Incumbent foreign ministers enjoy inviolability and immunity
from criminal prosecution in the performance of their official function.It must
be noted that the immunities accorded to Ministers for Foreign Affairs are not
granted for their personal benefit, but to ensure the effective performance of
their functions on behalf of their respective States.
(As to the allegation that the minister violated human rights, the alleged crimes
are not exonerated. What Belgium only violated is that it issued the warrant
WHILE the minister is INCUMBENT. He may still be made liable)
DOCTRINE: The functions exercised by a Minister for Foreign Affairs were
such that, throughout the duration of his or her office, a Minister for Foreign
Affairs when abroad enjoyed full immunity from criminal jurisdiction and
inviolability.
FACTS:
1. (NOTE: THIS IS THE ENTIRE TEXT CITED IN THE SYLLABUS)
ICJ REPORTS 2002, PAGE 3
2. The Court issued a second Judgment on 14 February 2002, in a case
between the Democratic Republic of Congo and Belgium concerning the
issuance and international circulation on 11 April 2000, by the Belgian legal
authorities, of an arrest warrant against Mr. Abdulaye Yerodia Ndomasi ,
then Congo’s Minister for Foreign Affairs.
3. In it’s judgment the Court held that the issue and international circulation
that warrant constituted a violation by Belgium of the immunity from
criminal prosecution and inviolability accorded to Congo’s Minister for
Foreign Affairs under international law.
4. The Court also found that Belgium was consequently obliged to cancel, by
means of its own choosing, the arrest warrant and to inform the authorities
to whom that warrant had been circulated.
Here is a summary of the original case BUT please note that this is only for
additional information:
1. On 17 October 2000, the Democratic Republic of the Congo filed an Application
instituting proceedings against Belgium concerning a dispute over an
international arrest warrant issued on 11 April 2000 by a Belgian examining
judge against the acting Congolese Minister for Foreign Affairs, Mr. Abdoulaye
Yerodia Ndombasi, seeking his detention and subsequent extradition to Belgium
for alleged crimes constituting “grave violations of international humanitarian
law”.
2. The arrest warrant was transmitted to all States, including the DRC, which
received it on 12 July 2000.
3. Congo filed a request for the discharge of the warrant.
4. Belgium called for that request to be rejected and for the case to be removed.
5. The Court, on December 8, 2000, denied Belgium’s request for the case to be
removed.
6. Congo requested the Court to adjudge and declare that Belgium had violated the
rule of customary international law concerning the inviolability and immunity
from criminal process of incumbent foreign ministers and that it should be
required to recall and cancel that arrest warrant and provide reparation for the
moral injury to the DRC.
7. On Feb 14 2002, Court rejected the objections of Belgium relating to jurisdiction,
mootness, and admissibility.
8. for Foreign Affairs.
ISSUE/s:
1. WON Belgium’s issuance of an arrest warrant against Minister Abdulaye
Yerodia Ndomasi was proper - NO, A minister of foreign affairs is immune
from criminal prosecution under international law.
RULING: The Court held that, in order to re-establish “the situation which would,
in all probability have existed if [the illegal act] had not been committed”, Belgium
must, by means of its own choosing, cancel the warrant in question and so inform
the authorities to whom it had been circulated.
RATIO:
1. The Court then observed that, in customary international law, the
immunities accorded to Ministers for Foreign Affairs are not granted
for their personal benefit, but to ensure the effective performance of
their functions on behalf of their respective States.
2. The Court held that the functions exercised by a Minister for Foreign
Affairs were such that, throughout the duration of his or her office, a
Minister for Foreign Affairs when abroad enjoyed full immunity from
criminal jurisdiction and inviolability.
3. Inasmuch as the purpose of that immunity and inviolability was to prevent
another State from hindering the Minister in the performance of his or her
 duties, no distinction could be drawn between acts performed by the latter
in an “official” capacity and those claimed to have been performed in a
“private capacity” or, for that matter, between acts performed before
assuming office as Minister for Foreign Affairs and acts committed during
the period of office.
4. The Court then observed that, contrary to Belgium’s arguments, it had been
unable to deduce from its examination of State practice that there existed
under customary international law any form of exception to the rule
according immunity from criminal jurisdiction and inviolability to
incumbent Ministers for Foreign Affairs when they were suspected of
having committed war crimes or crimes against humanity.
5. However, the Court emphasized that the immunity from jurisdiction
enjoyed by incumbent Ministers for Foreign Affairs did not mean that
they enjoyed impunity in respect of any crimes they might have
committed, irrespective of their gravity.
6. While jurisdictional immunity was procedural in nature, criminal
responsibility was a question of substantive law. Jurisdictional
immunity might well bar prosecution for a certain period or for certain
offenses; it could not exonerate the person to whom it applied from all
criminal responsibility.
7. It found that, given the nature and purpose of the warrant, its mere issuance
constituted a violation of an obligation of Belgium towards the DRC, in that
it had failed to respect the immunity which Mr. Yerodia enjoyed as
incumbent Minister
 004 BLACKMER v. US (Peliño)
February 15, 1932 | Hughes, CJ. | Nationality Principle
PETITIONER: Harry M. Blackmer
RESPONDENT: United States
SUMMARY: Blackmer was a citizen of the US residing in France. He was found guilty
of contempt by the SC of the District of Columbia for failure to respond to subpoenas
served upon him in France because he was being asked to appear as a witness on behalf of
the US at a criminal trial. The statute on the basis of such provided that whenever the
attendance of a witness abroad is desired, the judge may order a subpoena to be issued
and served to that witness personally and failure of the witness to show up, they may be
punished for contempt. Hence, this petition. The issue in this case is whether or not the
US has jurisdiction over Blackmer despite Blackmer being outside the State. The Court
here held in the affirmative. This is because Blackmer continued to be a citizen of the US.
He continued to owe allegiance to the the US and by virtue of the obligations of
citizenship, the US retained its authority over him. He was bound by its laws made
applicable to him in the foreign country. And although he was a resident abroad, he
remained to be in the taxing power of the US. US possesses the power inherent in
sovereignty to require the return to this country of a citizen, resident elsewhere, whenever
the public interest requires it, and to penalize him in case of refusal. This is based on the
nationality principle which provides that every state has jurisdiction over its nationals
even when those nationals are outside the state.
DOCTRINE: The nationality principle provides that every state has jurisdiction over its
nationals even when those nationals are outside the state.
FACTS:
91. Harry M. Blackmer (Blackmer) was a US citizen residing in Paris, France.
92. He was adjudged guilty of contempt by the SC of the District of Columbia
for failure to respond to subpoenas served upon him in France.
a. He was required to appear as a witness on behalf of the US at a
criminal trial in that court.
b. 2 subpoenas were issued for appearances at different times and also
separate proceedings.
c. The cases were heard together and a fine of $30k was imposed to be
satisfied out of Blackmer’s property which had been seized by order of
the Court.
93. The statute on the basis of such provided that whenever the attendance at
the trial of a criminal action of a witness abroad, who is a ‘citizen of the US
or domiciled therein’ is desired by the Atty. General or any assistant or
district attorney acting under him, the judge of the court in which the action
is pending may order a subpoena to issue, to be addressed to a consul of the
United States and to be served by him personally upon the witness with a
tender of traveling expenses.
a. Failure of the witness to show up, court may make an order requiring
the witness to show cause why he should not be punished for contempt.
b. Court may direct the properties belonging to the witness to be seized
and held to satisfy any judgment which may be rendered against him in
the proceeding.
94. Hence, this petition.
95. Blackmer questions the following on the ground that the statute violates the
due process clause of the Fifth Amendment
a. Congress has no power to authorize US consuls to serve process except as
permitted by treaty.
b. Act does not provide a valid method of acquiring judicial jurisdiction to render
personal judgment against defendant and judgment against his property.
c. Act does not require actual or any other notice to defendant of the offense or
the government’s claim against his property.
d. Provisions for hearing and judgment in the entire absence of the accused and
without his consent are invalid.
e. Act is arbitrary, capricious, and unreasonable.
ISSUE/s:
24. WON the US has jurisdiction over Blackmer despite being outside the state.
– YES, because every state has jurisdiction over its nationals even when
those nationals are outside the state.
RULING: Decrees AFFIRMED.
RATIO:
On whether the US has jurisdiction over Blackmer despite Blackmer being outside
the State
1. It is undisputed that Blackmer continued to be a citizen of the US.
a. He continued to owe allegiance to the US.
b. By virtue of the obligations of citizenship, the US retained its
authority over him.
c. He was bound by its laws made applicable to him in a foreign
country.
d. Although he was a resident abroad, he remained to be subject to
the taxing power of the US. For disobedience to its laws through
conduct abroad, he was subject to punishment in the courts of the US.
2. There is no question of international law, but solely of the purport of the
municipal law which establishes the duties of the citizen in relation to his
own government.
a. While the legislation of Congress is construed to apply only within the
territorial jurisdiction of the United States, the question of its
application, so far as citizens of the US in foreign countries are
concerned, is one of construction, not of legislative power.
b. Nor can it be doubted that the US possesses the power inherent in
sovereignty to require the return to this country of a citizen, resident
elsewhere, whenever the public interest requires it, and to penalize him
in case of refusal.
c. One of the duties which the citizen owes to his government is to
support the administration of justice by attending its courts and
 giving his testimony whenever he is properly summoned.
3. Jurisdiction of the US over its absent citizen is a jurisdiction in
personam as he is personally bound to take notice of the laws that are
applicable to him and obey them.
a. But for the exercise of judicial jurisdiction in personam, there must
be due process which requires appropriate notice of the judicial
action and an opportunity to be heard.
b. The authority to require the absent citizen to return and testify
necessarily implies the authority to give him notice of the
requirement.
c. As the attendance is needed in court, it is appropriate that the Congress
should authorize the court to direct the notice to be given, and that it
should be in the customary form of a subpoena.
d. The requirement would be nugatory if the provision could not be made
for its communication to the witness in the foreign country.
4. Question of the validity of the provision for actual service of the subpoena
in a foreign country is one that arises solely between the government of the
US and the citizen.
a. Mere giving of such a notice to the citizen in the foreign country of the
requirement of his government that he shall return is in no sense an
invasion of any right of the foreign government, and the citizen has not
standing to invoke any such supposed right.
b. While consular privileges in foreign countries are the appropriate
subjects of treaties, it doesn’t follow that every act of a consul must be
predicated upon a specific provision of a treaty.
5. As to the validity of the seizure of his property, the Court said that:
a. There is no reason why his property may not be seized to provide
security for the payment of the penalty.
b. Property is to be held pending the hearing, and is to be applied to the
satisfaction of the fine if imposed and unless it is paid.
c. The disobedience of the defaulting witness to a lawful requirement of
the court, and not the fact that he owns the property is the ground for
his liability.
 005 People v. Tulin (Perral; summary box by Marcos- edited)
Aug. 30, 2001 | Melo, J. | Criminal and Civil Jurisdiction
PETITIONER: People of the Philippines
RESPONDENTS: Roger P. Tulin, Virgilio I. Loyola, Cecilio O. Changco,
Andres C. Infante, Cheong San Hiong, and John Does
SUMMARY: M/T Tabangao is a cargo vessel owned by PNOC Shipping and
Transport Corporation and it was loaded with barrels of kerosene, gasoline, and
diesel oil. As it was sailing off the coast of Mindoro near Silonay Island, the
vessel was suddenly boarded by 7 fully armed pirates led by Emilio Changco.
The name M/T Tabangao was painted over with black paint with the name
Galilee. The crew was forced to sail to Singapore, while sending misleading
radio messages to PNOC that the ship was undergoing repairs. It anchored about
10-18 nautical miles from Singapore’s shoreline where another vessel called
“Navi Pride” anchored beside it. Emilio Changco ordered the crew to transfer the
cargo to Navi Pride while Cheong San Hiong supervised the crew of Navi Pride
in receiving the cargo. Once the transaction was complete, the vessel went back
to the Philippines. It arrived at Batangas and the members of the crew were
released in 3 batches, with the stern warning not to report the incident to
government authorities for a period of 2 days, otherwise they would be killed.
The Chief Engineer, accompanied by the members of the crew, called the office
of PNOC to report the incident. A series of arrests were made and soon after, an
information was filed charging against them qualified piracy or violation of PD
532. They pleaded not guity to the charge. Tulin, Infante, Loyola, and Changco
gave a defense of denial. Hiong on the other hand claimed that he did not know
that M/T Tabangao was raided by pirates. He maintained that his company was
then dealing with a certain Paul Gan who offered to sell to them bunker oil, and
was just asked to supervise the ship-to-ship transfer. The trial court convicted
Tulin, Loyola, Infante and Changco as principals, and Hiong as accomplice, to
the said crime. The matter was then elevated to the Supreme Court. Hiong argues
that PD 532 refers to Philippine Waters and that he was convicted for acts done
outside Philippine waters or territory. The issue is WoN the Philippines has
jurisdiction to try a crime committed outside the Philippine waters and territory.
SC held in the affirmative, As regards the contention that the trial court did not
acquire jurisdiction over the person of accused-appellant Hiong since the crime
was committed outside Philippine waters, suffice it to state that unquestionably,
the attack on and seizure of "M/T Tabangao" and its cargo were committed in
Philippine waters, although the captive vessel was later brought by the pirates to
Singapore where its cargo was off-loaded, transferred, and sold. And such
transfer was done under accused-appellant Hiong's direct supervision. Although
Presidential Decree No. 532 requires that the attack and seizure of the vessel and
its cargo be committed in Philippine waters, the disposition by the pirates of the
vessel and its cargo is still deemed part of the act of piracy, hence the same need
not be committed in Philippine water.
DOCTRINE: Although Presidential Decree No. 532 requires that the attack and
seizure of the vessel and its cargo be committed in Philippine waters, the
disposition by the pirates of the vessel and its cargo is still deemed part of
the act of piracy, hence, the same need not be committed in Philippine
waters.
Republic Act No. 7659 neither superseded nor amended the provisions on piracy
under Presidential Decree No. 532. There is no contradiction between the two
laws. There is likewise no ambiguity and hence, there is no need to construe or
interpret the law. All the presidential decree did was to widen the coverage of the
law, in keeping with the intent to protect the citizenry as well as neighboring
states from crimes against the law of nations. As expressed in one of the
"whereas" clauses of Presidential Decree No. 532, piracy is "among the highest
forms of lawlessness condemned by the penal statutes of all countries." For
this reason, piracy under the Article 122, as amended, and piracy under
Presidential Decree No. 532 exist harmoniously as separate laws.
FACTS:
96. M/T Tabangao, a cargo vessel owned by PNOC Shipping and Transport

Corporation, loaded with 2,000 barrels of kerosene, 2,000 barrels of
regular gasoline, and 40,000 barrels of diesel oil, with a total value of
PhP40,426,792.87, was sailing off the coast of Mindoro near Silonay Island.


97. The vessel was manned by 21 crew members, including Captain Liboon,
Second Mate Torrabla, and Operator Ervas. One evening, the ship was
suddenly boarded by seven fully-armed pirates with the use of an aluminum
ladder. These pirates were led by Emilio Changco, older brother of accused-
appellant Cecilio Changco. They were armed with M- 16 rifles, .45 and .38
caliber handguns and bolos. They detained the crew and took complete
control of the vessel. 

98. Loyola ordered three crew members to paint over the name M/T Tabangao
and the PNOC logo and paint the name “Galilee”. The crew was then forced
to sail to Singapore while sending misleading messages to PNOC that the
ship was undergoing repairs. PNOC reported disappearance of vessel after it
lost radio contact, but the search and rescue operation conducted did not
yield positive results. 

99. The pirates returned to Manila, but again sailed to Singapore, when another
vessel called “Navi Pride” anchored beside it. Emilio ordered the crew of
Tabangao to transfer the vessel’s cargo to the hold of Navi Pride. 

100. Days after the transfer was completed, Tabangao arrived in Calatagan,
Batangas. The members of the crew were released in three batches with the
stren warning not to report the incident to government authorities for a
period of two days, otherwise they would be killed. 

101. 2 days after, the crew members reported the incident. Investigations and
arrests took place. Thereafter, an information charging qualified piracy or
 violation of PD 532 was filed.
102. Accused Tulin, Infante, Loyola maintained the defense of denial. All of
them claimed having their own respective sources of livelihood. Their story
was to the effect that the day before the alleged commission of crime, while
they were conversing by the beach, a red speedboat with Captain Liboon
and Second Mate Torralba on board, approached the seashore and offered
them a job in the vessel. They were told that the work was light and each
worker was to be paid PhP3,000 a month. They agreed, and on board they
cooked, cleaned the vessel, prepared coffee, ran errands for officers. There
was neither receipt nor contracts of employment signed by the parties.
103. Accused Changco said that he was at home sleeping. He testified that he is
the younger brother of Emilio Changco.
104. Accused Cheong San Hiong adduced evidence that he studied in Australia,
obtaining the Certificate as Chief Officer and later completed the course as
a Master of the vessel, working as such for two years on board a vessel. He
worked at Navi Marine Services which was engaged in trading oil. It owned
Navi Pride. The day before the crime took place, Hiong was assigned to
supervise a ship-to-ship transfer of diesel oil off the port of Singapore. He
was told to sail towards a vessel called M/T Galilee and that M/T Galilee
would be making the transfer. The transfer of oil transpired, and Hiong met
Captain Bobby (Emilio Changco). There were two transfers that took place.
105. The trial court found the accused guilty. They now assail that the trial court
erred in allowing them to adopt the proceedings taken during the time they
were being represented by a certain Posadas, a non-lawyer, thereby
depriving them of their constitutional right to procedural due process. They
also contend that they were subjected to physical violence during the
custodial investigation and were forced to sign documents without being
given the opportunity to read the contents, were denied assistance to
counsel, and were not informed of their rights. The also allege that the crew,
having outnumbered the pirates, could have overpowered the latter.
106. Cheong , on the other hand, argues that: (1) RA 7659 in effect obliterated
the crime committed by him; (2) the trial court erred in declaring that the
burden is lodged on him to prove that he had no knowledge that the oil
being transferred was a subject of theft and piracy; (3) the trial court erred
in finding him guilty as an accomplice to the crime of qualified piracy under
Section 4 of Presidential Decree No. 532 (Anti-Piracy and Anti-Robbery
Law of 1974); (4) the trial court erred in convicting and punishing him as an
accomplice when the acts allegedly committed by him were done or
executed outside of Philippine waters and territory, stripping the Philippine
courts of jurisdiction to hold him for trial, to convict, and sentence; (5) the
trial court erred in making factual conclusions without evidence on record
to prove the same and which in fact are contrary to the evidence adduced
during trial; (6) the trial court erred in convicting him as an accomplice
under Section 4 of Presidential Decree No. 532 when he was charged as a
principal by direct participation under said decree, thus violating his
constitutional right to be informed of the nature and cause of the accusation
against him.
107. As legal basis for his appeal, he explains that he was charged under the
information with qualified piracy as principal under Section 2 of
Presidential Decree No. 532 which refers to Philippine waters. In the case at
bar, he argues that he was convicted for acts done outside Philippine waters
or territory. For the State to have criminal jurisdiction, the act must have
been committed within its territory.
ISSUE/s:
25. WoN the Philippines has jurisdiction to try a crime committed outside the
Philippine waters and territory – YES. The disposition by the pirates of the vessel
and its cargo is still deemed parti of the act of piracy, hence the same need not be
committed in Philippine water.
RULING: Wherefore, finding the conviction of accused-appellants justified by the
evidence on record, the Court hereby AFFIRMS the judgment of the trial court in
toto.
RATIO:
151. YES. Article 122 of the Revised Penal Code, before its amendment,
provided that piracy must be committed on the high seas by any person not
a member of its complement nor a passenger thereof. Upon its amendment
by Republic Act No. 7659, the coverage of the pertinent provision was
widened to include offenses committed "in Philippine waters." On the other
hand, under Presidential Decree No. 532 (issued in 1974), the coverage of
the law on piracy embraces any person including "a passenger or member of
the complement of said vessel in Philippine waters." Hence, passenger or
not, a member of the complement or not, any person is covered by the law.
152. Republic Act No. 7659 neither superseded nor amended the provisions on
piracy under Presidential Decree No. 532. There is no contradiction
between the two laws. There is likewise no ambiguity and hence, there is no
need to construe or interpret the law. All the presidential decree did was to
widen the coverage of the law, in keeping with the intent to protect the
citizenry as well as neighboring states from crimes against the law of
nations. As expressed in one of the "whereas" clauses of Presidential Decree
No. 532, piracy is "among the highest forms of lawlessness condemned by
the penal statutes of all countries." For this reason, piracy under the Article
122, as amended, and piracy under Presidential Decree No. 532 exist
harmoniously as separate laws.
153. As regards the contention that the trial court did not acquire jurisdiction
over the person of accused-appellant Hiong since the crime was committed
outside Philippine waters, suffice it to state that unquestionably, the
attack on and seizure of "M/T Tabangao" and its cargo were
committed in Philippine waters, although the captive vessel was later
brought by the pirates to Singapore where its cargo was off-loaded,
transferred, and sold. And such transfer was done under accused-
appellant Hiong's direct supervision. Although Presidential Decree No.
532 requires that the attack and seizure of the vessel and its cargo be
committed in Philippine waters, the disposition by the pirates of the
vessel and its cargo is still deemed part of the act of piracy, hence, the
same need not be committed in Philippine water.
154. Moreover, piracy falls under Title One of Book Two of the Revised Penal
Code. As such, it is an exception to the rule on territoriality in criminal law.
The same principle applies even if Hiong, in the instant case, were charged,
not with a violation of qualified piracy under the penal code but under a
special law, Presidential Decree No. 532 which penalizes piracy in
Philippine waters. Verily, Presidential Decree No. 532 should be applied
with more force here since its purpose is precisely to discourage and
prevent piracy in Philippine waters.It is likewise, well-settled that regardless
of the law penalizing the same, piracy is a reprehensible crime against
the whole world.
 006 KURODA v. JALANDONI (Pleyto)
March 26, 1949 | Moran, C.J. | Criminal and Civil Jurisdiction
PETITIONER: Shigenori Kuroda
RESPONDENTS: Major General Rafael Jalandoni, Brigadier General Calixto
Duque, Colonel Margarito Toralba, Colonel Ireneo Buenconsejo, Colonel Pedro
Tabuena, Major Federico Aranas, Melville S. Hussey and Robert Port
SUMMARY: Kuroda was a former Lt. Gen. and Commanding Gen. of the
Japanese Imperial Army from 1943-1944. He is now charged before the Military
Commission for having unlawfully disregarded and failed to control the
operations of his command and allowing them to commit brutal atrocities and
other high crimes against noncombatant civilians and prisoners. EO No. 68
established a National War Crimes Office and prescribed rules and regulations
governing the trial of accused war criminals. His arguments are: (1) EO 68 is
illegal, (2) enjoin and prohibit Hussey and Port from participating in the
prosecution, (3) permanently prohibiting respondents from proceeding. The issue
is WoN EO 68 is constititutional. SC said yes, because the Military Commission
was convened by virtue of a valid law, with jurisdiction over the crimes charged
which fall under the provisions of EO No. 68, and having jurisdiction over
Karudo by having him in its custody. President exercised his power as
Commander in Chief in the issuance of the EO. Also, the Military Commission
was established by a special law, which does not require that the counsel must be
those duly qualified to practice law in the Phil.
DOCTRINE: War crimes committed against our people and our government
while we are a Commonwealth, are triable and punishable by our present
Republic. Military Commission is a special military tribunal governed by a
special law and not by the Rules of Court which govern ordinary civil courts.
The Military Commission having been convened by virtue of a valid law, with
jurisdiction over the crimes charged which fall under the provisions of Executive
Order No. 68, SC will not interfere with the due processes of such Military
Commission.
FACTS:
108. Executive Order No. 68, establishing a National War Crimes Office and
prescribing rules and regulations governing the trial of accused war
criminals, was issued by the Pres. on July 19, 1947
109. Shigenori Kuroda was a former Lieutenant-General of the Japanese
Imperial Army and Commanding General of the Japanese Imperial Forces
in the Philippines from 1943-1944
110. He is now charged before a Military Commission convened by the Chief of
Staff of the AFP, with having unlawfully disregarded and failed:
a. “to discharge his duties as such commander to control the
operations of members of his command, permitting them to
commit brutal atrocities and other high crimes against
noncombatant civilians and prisoners of the Imperial Japanese
Forces, in violation of the laws and customs of war”
111. Kuroda comes before the SC to:
a. establish the illegality of EO No. 68
b. enjoin and prohibit respondents Hussey and Port from participating
in the prosecution of his case before the Military Commission
c. permanently prohibit respondents from proceeding with the case
112. First argument: that EO 68 is illegal because it violates the provisions of our
constitutional law and our local laws, to say nothing of the fact that the
Philippines is not a signatory nor an adherent to The Hague Convention on
Rules and Regulations covering Land Warfare
a. Thus, he was charged of crimes not based on law
b. Commission is then without jurisdiction to try him
113. Second, the participation of Hussey and Port in behalf of the USA is a
diminution of our personality as an independent state because they are not
attorneys authorized by the SC to practice law in the Philippines
a. Their appointments are thus in violation of our constitution for not
being qualified to practice law here
114. Third: Hussey and Port have no personality as prosecutors, the US not being
a party in interest in the case
ISSUE/s:
26. WoN EO No. 68 is valid and constitutional – YES, because the Military
Commission was convened by virtue of a valid law, with jurisdiction over
the crimes charged which fall under the provisions of EO No. 68, and
having jurisdiction over Karudo by having him in its custody.
RULING: EO No. 68 is constitutional (walang wherefore part yung case)
RATIO:
First argument:
1. Article 2, Section 3 of the Constitution states that:
“The Philippines renounces war as an instrument of national policy, and adopts the generally
accepted principles of international law as part of the law of the nation.”
2. In accordance with the generally accepted principles of international law of
the present day, including the Hague Convention, Geneva Convention and
significant precedents of international jurisprudence established by the UN:
a. All those persons, military or civilian, who have been guilty of
planning, preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and incidental
thereto, in violation of the laws and custom of war, of humanity
and civilization, are held accountable therefor
3. Consequently, the Pres. enforced EO 68 in conformity with the generally
accepted principles and policies of international law, which are part of our
Constitiution and as an exercise of his powers as Commander in Chief
4. Yamashita vs. Styer:
"War is not ended simply because hostilities have ceased. After cessation of armed
 hostilities, incidents of war may remain pending which should be disposed of as in time of
war. 'An important incident to a conduct of war is the adoption of measures by the
military command not only to repel and defeat the enemies but to seize and subject to
disciplinary measures those enemies who in their attempt to thwart or impede our military
effort have violated the law of war.' Indeed, the power to create a military commission for
the trial and punishment of war criminals is an aspect of waging war. And, in the language
of a writer, a military commission 'has jurisdiction so long as a technical state of war
continues. This includes the period of an armistice, or military occupation, up to the
effective date of a treaty of peace, and may extend beyond, by treaty agreement
5. So point: President as Commander in Chief is fully empowered to
consummate the unfished aspect of war: trial and punishment of war
criminals, through the issuance and enforcement of EO 68
6. Again, Kuroda argues that the Military Commission has no jurisdiction to
try him for acts committed in ciolation of the Hague Convention and the
Geneva Convention because the Philippines is not a signatory to the first
and signed the second only in 1947.
7. However, it cannot be denied that the rules and regulations of the hague
and Geneva conventions form part of and are wholly based on the
generally accepted principles of international law
8. In fact, these were accepted by the 2 belligerent nations (US and Japan) who
were signatories of the two conventions
9. Thus, these form part of the law of our nation even if the Philippines was
not a signatory to the conventions for our Constitution has been deliberately
general and extensive in scope
10. We are also not confined to the recognition of rules and principles in
treaties to which our government may have been or shall be a signatory
11. Furthermore, when the crimes charged were allegedly committed, the
Philippines was under the sovereignty of the US, and thus we were
equally bound together with them and with Japan, to the rights and
obligations contained in the treaties between the belligerent countries
a. Not erased by our assumption of full sovereignty
12. Laurel v. Misa: the change of the form of government (Commonwealth to
Republic) did not affect the prosecution of those charged with treason
during Commonwealth because it is an offense against the same
government and the same sovereign people
Second argument:
1. Kuroda questions the participation of Hussey and Port for not being
qualified to practice law here
2. In the first place, Military Commission is a special military tribunal
governed by a special law and not by the Rules of Court which govern
ordinary civil courts
3. There is nothing in EO 68 which requires that counsel appearing before the
Military Commission must be attorneys qualified to practice law
4. It is common in military tribunals that counsel are usually military
personnel (who are neither attorneys nor even possessed of legal training)
5. Secondly, this does not violate our national sovereignty
6. It is only fair and proper that the US, which has submitted the vindication of
crimes against her gov’t and her people to a tribunal of our nation, should
be allowed representation
7. It was the US who relinquished soverneignty, if any
8. Least could be done in the spirit of comity is to allow them
Third argument:
1. It is of common knowledge that the US and its people have been equally, if
not more greatly, aggrieved by the crime with which Kuroda stands
2. It can be considered a privilege for the Phil., that a leader nation should
submit the vindication of the honor of its citizens and its gov’t to us
Perfecto, J., dissent: EO 68 is null and void
1. A military commission was empaneled on Dec. 1, 1948 to try Kuroda for violation of the laws
and customs of land warfare
2. The charges were filed on June 26, 1948 with People of the Phil as accusers
3. It appearing that Hussey and Port are aliens and have not been authorized by the SC to practice
law, there could not be any question that said persons cannot appear as prosecutors, as this
appearance would be practicing law against the law
4. EO 68 is a veritable peace of legislative measure without the benefit of congressional
enactment (grabe parang legal ramifications yung buong case)
5. First question: WoN the President may exercise the legislative power
expressly vested in Congress by the Constitution
a. Sec 1, Art. VI: The legislative powers shall be vested in a Congress of the Phil,
which shall consist of a Senate and a HoR
b. A reading of the whole context of the Consti, though not having an
express provision prohibiting the exercise of legislative power by
agencies, would dispel any doubt as to the intent that it should be
exercised exclusively by Congress, subj. only to the veto power of
the President to the specific provisions which allow the Pres. to
suspend the privileges of the writ of habeas corpus and martial law,
and to the rule-making power expressly vested by the Consti
c. (the sentence was so long. Pinaiksi ko na iyan haha)
6. The Consti Convention were believers in the tripartite system of
government as originally enunciated by Aristotle, futher elaborated by
Montesquieu and accepted and practiced by modern democracies (esp. US)
a. Whose constitution ours was patterned
7. Because the powers vested by our Constitution to the several departments of
the government are in the nature of grants, not a recognition of pre-existing
powers, no department of government may exercise any power or authority
not expressly granted by the Constitution or by law
8. EO provides that persons accused as war criminals shall be tried by military
commissions
a. Whether such is substantive or adjective, it is clearly legislative in
nature because it confers upon military commissions jurisdiction
b. The power to define and allocate jurisdiction for the prosecution of
persons accused of any crime is exclusively vested by the
Constitution in Congress
9. It provides rules of procedure for the conduct of trials, which amounts to a
 usurpation of the rule-making power vested by the Consti in the SC Laws in this case:
a. Authorizes military commission to adopt addt’l rules of procedure EO No. 68
b. If the President of the Philippines cannot exercise the rule-making Commonwealth Act. No. 600
power vested by the Constitution in the SC, he cannot, with more Commonwealth Act No. 671
reason to delegate that power to military commissions Did not put the cases here na cause full texts naka-cite din.
10. 700k is appropriated for the expenses of the National War Crimes Office
established by the EO 68
a. another usurpation of legislative power
11. EO 68 is thus null and void because through it, the Pres. usurped powers
expressly vested by the Constitution in Congress and in the SC
12. Respondents however suggest that the President of the Philippines issued
EO 68 under the emergency powers granted to him by Commonwealth Act.
No. 600, as amended by Commonwealth Act No. 620 and 671 (also cited)
a. Cannot be invoked, because they ceased to have any effect much
before the EO was issued on Jul. 29, 1947
b. This elapsed upon the liberation of the Philippines from Japan or,
at the latest, when the surrender of Japan was signed in Tokyo on
Sept. 2, 1945
13. They (Padilla included) were part of the Second National Assembly, as
chairman of the Committee on Third Reading, known as the “Little Senate”
14. Thus, they were in the position to state that said measures were enacted by
the Second National Assembly for the purpose of facing the emergency of
an impending war and of the Pacific War
a. Approved under Art. VI, sec. 26
15. It was never the purpose of the National Assembly to extend the delegation
beyond the emergence created by war, as this is violative of the Consti
16. The contention that the emergency acts continued in effect even after the
surrender of Japan is absurd because only a few months after liberation and
even before the surrender of Japan, or since the middle of 1945, the
Congress started to function normally
17. After the Republic replaced the Commonwealth with the proclamation of 2
legislattive organs: Congress (enact laws of every nature) and Pres
(executive orders under the emergency powers)
a. Should there be any disagreement between Congress and the Pres,
the Pres. may take advantage of the long recess of Congress to
repeal and overrule legislative enactments of Congress
b. May also set up a veritable system of dictatorship, absolutely
repugnant to the letter and spirit of the Consti
18. EO 68 is equally offensive to the Consti because it violates due process and
equal protection of the law
a. because it permits the admission of many kinds of evidence by
which no innocent person can afford to get acquittal, and by which
it is impossible to determine whether an accused is guilty or not
19. The rules of evidence adopted in the EO are a reproduction of the
regulations governing the trial of twelve criminals, issued by Gen.
MacArthur, for the purpose of trying, among others, Yamashita and Homma
 007 In the Matter of the Requested Extradition of Joseph Patrick
Thomas Doherty by the Govt of the United Kingdom of Great Britain
and Northern Ireland (Punsalan)
Dec. 12, 1984 | Sprizzo, District J. | Political offense doctrine in relation to
extradition of criminal
PETITIONER: USA on behalf of United Kingdomof Great Britain and
Northern Ireland
RESPONDENTS: Joseph Patrick Thomas Doherty
SUMMARY: Doherty is a member of the provisional Irish Republican Army
(PIRA) and, with his group, took over a house in 371 Antrim Road, Belfast,
Ireland to engage and attack a convoy of British soldiers. A shootout ensued
between Doherty’s group and members of the Special Air Service (SAS) of the
British army and resulted to the death of Captain Herbert Westmactott and
Doherty’s arrest. He was held in Crumlin Road prison pending trial. After trial
completed, Doherty and 7 others escaped the prison. He was conviceted in
absentia for murder, attempted murder, and illegal possession of firearms and
ammunition, and other offenses allegedly commited in the course of his escape
from prison. (he was caught by US authorities after his escape from prison)
Pursuant to Art. IX of the Treaty of Extradition between the UK and
Northern Ireland, the US acts on behalf of UK and Northern Ireland to
extradite Doherty ot the UK because of his prior conviction in absentia. Doherty
argues that Art V(1)(c)(i) of the Treaty justifies denial of his extradition to UK
since what he committed was a political offense.
Issue: WoN Doherty may be extradited – NO
This case involves the application of the political offense doctrine in relation to
the Treaty of Extradition between US UK and Northern Ireland.
This case presents the assertion of the political offense exception in its most
classic form. The death of Captain Westmacott, while a most tragic event,
occurred in the context of an attempted ambush of a British army patrol. The
British Army’s response gave rise to Captain Westmacott’s death. Had this
conduct occurred during the course of more traditional military hostilities there
could be little doubt that it would fall within the political offense exception.
The Court is not persuaded by the argument that Doherty’s offense must or
should be regarded as political merely because the UK has recognized the
necessity to enact special legislation and to create special courts to deal with
problems created by the escalating violence between Republicans and Unionitsts
in Northern Ireland.
Nevertheless, the fairness of the administration of justice in those courts does
not and cannot deprive Doherty’s offenses of their essentially political
character. (see Ratio 14 for full explanation) Having political character, the
request for Doherty to be extradited to UK must be denied.
DOCTRINE: The political offense exception is not limited to actual armed
insurrections or more traditional and overt military hostilities. (See Ratio 6
subcategories for reasoning).
Factors which the Court must assess in determining political offense doctrine:
a. the nature of the act
b. the context in which it is committed
c. the status of the party committing the act
d. the nature of the organization on whose behalf it is committed
e. the particularized circumstances of the place where the act takes place.
FACTS:
115. USA, acting on behalf of the United Kingdom of Great Britain and
Northern Ireland, has requested the extradition of Joseph Patrick Thomas
Doherty to the United Kingdom pursuant to 18 U.S.C. § 3184 and the
Treaty of Extradition between the United States of America and the
United Kingdom of Great Britain and Northern Ireland (TIAS No. 8468
effective Jan 21, 1997) (“the Treaty”)
a. The Govt of UK seeks Doherty’s extradition on the basis of his
conviction in Northern Ireland on June 12, 1981 for murder,
attempted murder, and illegal possession of firearms and
ammunition, and for offenses allegedly committed in the course
of his escape from H.M. Prison, Crumlin Road, Belfast on June
10, 1981.
116. Doherty was arrested by the United States Immigration and Naturalization
Service on June 18, 1983, in New York City. A provisional warrant of
arrest was issued by Chief Judge Constance Baker Motley on June 27,
1983, pursuant to Article VIII of the Treaty.
117. A formal request for extradition was filed in accordance with Article VII of
the Treaty in the Southern District of New York on August 16, 1983. A
hearing was held by the Court in March and April 1984 pursuant to 18
U.S.C. § 3184.
118. Doherty was a member of the provisional Irish Republican Army (“PIRA”).
On May 2, 1980, at the direction of the IRA, Doherty and three others
embarked upon an operation “to engage and attack” a convoy of British
soldiers.
119. The group took over a house at 371 Antrim Road, Belfast and awaited a
British Army convoy. Hours later, a car stopped in front of 371 Antrim
Road and five men carrying machine guns emerged (members of Special
Air Service of the British Army or SAS) which led to a shootout.
a. In the exchange, British army Captain Herbert Westmacott was
shot and killed.
b. Doherty was arrested, charged with the murder, among other
offenses, and held in the Crumlin Road prison pending trial.
 120. After trial completed in June 10, 1981, Doherty escaped from prison
along with 7others.
121. He was convicted in absentia on June 12, 1981 of said crimes (Fact 1a)
122. Pursuant to Article IX of the Treaty, the Court must be satisfied that
probable cause exists with respect to the offenses for which the requesting
party seeks Doherty’s extradition.
a. USA produced a Certificate of Conviction for the offenses related
to the death of Captain Westmacott, and a Warrant for Arrest of
Doherty with respect to the escape from the Crumlin Road prison.
b. Doherty has not contested that he is the person named in those
documents. Indeed, he testified as to his involvement in both the
shooting incident and the prison escape.
c. With these, the court finds probable cause exists
123. However, Doherty contests that the extradition must be denied pursuant
to Article V(1)(c)(i) of the Treaty, which provides:
a. (1) Extradition shall not be granted if: (c)(i) the offense for which
extradition is requested is regarded by the requested Party as one
of a political character.
124. USA denies that the political offense exception to the Treaty is applicable.
(case didn’t say why USA thinks this shouldn’t apply)
NOTE: Please read “CONTEXT” at the end of the digest to further understand
how the Court tries to define the political offense exception which is essential to
fully understand the ratio
ISSUE/s:
27. WoN the political offense exception is limited to actual armed insurrections
or more traditional and overt military hostilities – NO
28. WoN political exception applies to both the shooting incident (Capt.
Westmacott’s death) and the priscon escape – YES, both are political in
nature
29. WoN Doherty may be extradited – NO because of the application of the
political offense exception provided by the Treaty
RULING: Request for extradition denied.
RATIO:
How political offense doctrine is to be construed
155. Not every act committed for a political purpose or during a political
disturbance may or should properly be regarded as a political offense.
156. Surely the atrocities at Dachau, Aushwitz, and other death camps would be
arguably political within the meaning of that definition. (other examples
given are My Lai, the Bataan death march, Lidice, the Katyn Forest
Massacre as violations of international laws which a civilized world should
not accept)
157. It would not be consistent with the policy of this nation as reflected by its
participation in those trials, for an American court to shield from
extradition a person charged with such crimes.
158. A proper construction of the Treaty in accordance with US laws and
policies require that no act be regarded as political where the nature of
the act is such as to be violative of international law, and inconsistent
with international standards of civilized conduct.
159. The Court rejects the notion that the political offense exception is limited
to actual armed insurrections or more traditional and overt military
hostilities.
a. History dictates that political struggles have been commenced and
effectively carried out by armed guerillas long before they were
able to mount armies in the field.
b. In defining political exception doctrine, it is not for the courts to
regard as dispositive factors such as the likelihood that a politically
dissident group will succeed, or the ability of that group to effect
changes in the government by means other than violence, although
concededly such factors may at times be relevant in distinguishing
between the common criminal and the political offender.
c. Nor is the fact that violence is used in itself dispositive.
What factors limit the scope of political offense doctrine
160. (IMPT) Instead the Court must assess:
a. the nature of the act
b. the context in which it is committed
c. the status of the party committing the act
d. the nature of the organization on whose behalf it is committed
e. the particularized circumstances of the place where the act takes
place.
Political offense exception encompasses the offenses in this case
161. Considering the offenses for which extradition is sought in the light of these
precepts, the Court is constrained to conclude that the political offense
exception clearly encompasses those offenses.
a. We are not faced here with a situation in which a bomb was
detonated in a department store, public tavern, or a resort hotel,
causing indiscriminate personal injury, death, and property
damage.
b. Such conduct would be clearly beyond the parameters of what and
should properly be regarded as encompassed by the political
offense exception to the Treaty.
c. Whatever the precise contours of that elusive concept may be, it
was in its inception an outgrowth of the notion that a person should
not be persecuted for political beliefs and was not designed to
protect a person from the consequences of acts that transcend the
limits of international law.
162. Nor is this a case where violence was directed against civilian
 representatives of the government, where defining the limits of the political
offense exception would be far less clear.
163. This case presents the assertion of the political offense exception in its most
classic form.
a. The death of Captain Westmacott, while a most tragic event,
occurred in the context of an attempted ambush of a British army
patrol.
b. It was the British Army’s response to that action that gave rise to
Captain Westmacott’s death. Had this conduct occurred during the
course of more traditional military hostilities there could be little
doubt that it would fall within the political offense exception.
Issue #2
164. While it may be a radical offshoot of the traditional Irish Republican Army
the PIRA, has both an organization, discipline, and command structure that
distinguishes it from more amorphous groups such as the Black Liberation
Army or the Red Brigade.
a. Testimony provides that its discipline and command structure
operate even after its members are imprisoned and indeed, as
Doherty testified, it was at the direction of the PIRA that he
escaped and then came to the United States.
165. Given that defined structure, the fact that the PIRA may not be likely to
achieve its objectives does not deprive its acts of their political
character.
a. This Court cannot, in interpreting the Treaty, make the political
exception concept turn upon the Court’s assessment of the
likelihood of a movement’s success.
b. History is replete with examples of political and insurrectionary
movements that have succeeded in effecting political changes that
were believed to be improbable if not impossible.
166. (IMPT) But the Court is not persuaded by the argument that Doherty’s
offense must or should be regarded as political merely because the UK has
recognized the necessity to enact special legislation and to create special
courts to deal with problems created by the escalating violence between
Republicans and Unionitsts in Northern Ireland.
a. If that were the case, any lawless group could create political
status for itself by merely escalating the level of lawlessness to a
point where the government is constrained to deal with it by
special remedies.
167. Nevertheless, the fairness of the administration of justice in those courts
does not and cannot deprive Doherty’s offenses of their essentially
political character.
168. The Court does not accept as dispositive the view expressed by David J.
Bentley, Assistant Legal Advisor to the United Kingdom Home Office,
which indicates that in England the political offense exception to
extradition is now believed to encompass only those situations in which
the sovereign has some interest over and above that of enforcing peace
and public order in prosecuting an alleged political offender.
a. The fact that a sovereign may be neutral in punishing violent
conduct designed to achieve political ends does not in itself
transform offenses that would otherwise be clearly political in
nature into ordinary common law crimes.
b. (IMPT) Moreover, were the Court to accept such a view, it would
be placed in the delicate situation of having to assess the
neutrality and indirectly the good faith of the sovereign seeking
extradition, a circumstance that could adversely affect the
conduct of foreign relations and might well be inconsistent with
the Treaty’s structure, which clearly places such
determinations in the hands of the Secretary of State.
c. That possibility is obviously present here where it is certainly at
least arguable that the United Kingdom may not be entirely neutral
with respect to the issue of Irish independence because it is the end
of British rule in Ireland that has been and continues to be the
principal objective of the Irish Republican movement.
Conclusion + Issue #3
169. The Court concludes that Doherty’s participation in Captain
Westmacott’s death was an offense political in character. The Court
further concludes that his escape from Crumlin Road prison, organized
and planned under the direction of the PIRA to effect its purposes
rather than those of Doherty himself, was also political.
170. That conduct and all of the various and sundry charges which are connected
therewith and for which extradition is sought are not extraditable offenses
under Article V(1)(c)(i) of the Treaty.
CONTEXT:
It seems clear, as the evidence established, that the centuries old hatreds and political divisions
which were spawned by England’s conquest of Ireland in medieval times continue to resist
any permanent resolution. Instead they have smoldered, sometimes during long periods of
quescience, only to repeatedly erupt with tragic consequences. The offenses which give rise to
this proceeding are but the latest chapters in that unending epic.
The Provisional Irish Republican Army, of which Doherty is a member, claims to be a
contemporary protagonist in that ancient struggle. The evidence established that the Irish
Republican Army and more particularly the PIRA, had lost much public support and had
become dormant, while other groups, emulating the pattern of civil rights groups in this
country, sought to achieve an amelioration of alleged political and economic deprivations by
peaceful means. It is indeed unfortunate that those efforts failed, but fail they did. Perhaps,
given the long-standing enmities, anxieties, and fears that exist between the Unionists and
Republicans in Ireland, it was too much to expect that they would succeed. Nevertheless, it
was the collapse of those peaceful efforts that ironically led to a resurgence of the PIRA.
On January 30, 1972 in Londonderry, what started out as a peaceful demonstration ended
in a bloody confrontation in which 13 civilians were killed. Since British troops were
regarded as at least in part responsible for that tragedy, their presence which had been
initially welcomed, became a subject of increasing antipathy and concern. [FN1] The
result was a fresh impetus for the PIRA and increasing support for those who would resolve
Ireland’s political problems by violence. [FN2]

Following the resurgence of the PIRA, the level of violence both by the PIRA and armed
Loyalist groups continued to escalate in a continuing and seemingly inexorable series of
events that between 1972 and 1979 claimed the lives of over 1,770 persons, nearly 1,300 of
whom were civilian casualties, and injured hundreds of others. This alarming and at times
wanton destruction of life and property necessitated the enactment of special laws, see
Northern Ireland (Emergency Provisions) Act 1973 (R.Ex. BB); Prevention of Terrorism
(Temporary Provisions) Act 1976 (R.Ex. CC); Northern Ireland (Emergency Provisions) Act
1978 (R.Ex. DD); see also Report of the Commission to consider procedures to deal with
terrorist activities in Northern Ireland (the “Diplock Report”) (R.Ex. AA); Suppression of
Terrorism Act 1978 (P.Ex. 15), including the creation of special Diplock Courts to try
political offenders, and transformed the Catholic areas of Belfast and Londonderry into
zones of military occupation.
 008 U.S. v. Alvarez-Machain (Cristelle)
June 15, 1992| CHIEF JUSTICE REHNQUIST | Criminal Jurisdiction
PETITIONER: United states
RESPONDENTS: Alvarez-Machain
SUMMARY: Agents of the DEA abducted Alvarez-Machain from his
office in Mexico because he was wanted in the U.S. for alleged complicity
in the torture-murder of a DEA agent. But by contending that his abduction
violated a U.S.-Mexico extradition treaty, Alvarez sought to dismiss the
indictment. His prayer was granted by the district court and the indictment
was dismissed. The court of appeals affirmed while the U.S. Supreme Court
granted review. Issue: Does the presence of an extradition treaty between
the United States and another country does not necessarily preclude
obtaining a citizen of that nation through abduction? The presence of an
extradition treaty between the United States and another country does not
necessarily preclude obtaining a citizen of that nation through abduction. It
has been established that abduction, in and of itself, does not invalidate
prosecution against a foreign national. The only question to be answered is
whether the abduction violates any extradition treaty that may be in effect
between the U.S. and the nation in which the abductee was to be found. The
international law applies only to situations where no extradition treaty
exists, so it is irrelevant here. Since the extradition treaty does not prohibit
an abduction as it occurred in this case, then it is not illegal. The fact of
respondent's forcible abduction does not prohibit his trial in a United States
court for violations of this country's criminal laws. (a) A defendant may not
be prosecuted in violation of the terms of an extradition treaty. However,
when a treaty has not been invoked, a court may properly exercise
jurisdiction even though the defendant's presence is procured by means of a
forcible abduction. Thus, if the Extradition Treaty does not prohibit
respondent's abduction, the rule of Ker case applies and jurisdiction was
proper. (b) Neither the Treaty's language nor the history of negotiations and
practice under it supports the proposition that it prohibits abductions outside
of its terms. The Treaty says nothing about either country refraining from
forcibly abducting people from the other's territory or the consequences if an
abduction occurs. In addition, although the Mexican government was made
aware of the Ker doctrine as early as 1906, and language to curtail Ker was
drafted as early as 1935, the Treaty's current version contains no such
clause. (c) General principles of international law provide no basis for
interpreting the Treaty to include an implied term prohibiting international
abductions. It would go beyond established precedent and practice to draw
such an inference from the Treaty based on respondent's argument that
abductions are so clearly prohibited in international law that there was no
reason to include the prohibition in the Treaty itself. It was the practice of
nations with regard to extradition treaties that formed the basis for this
Court's decision in Rauscher, supra, to imply a term in the extradition treaty
between the United States and England. Respondent's argument, however,
would require a much larger inferential leap with only the most general of
international law principles to support it. While respondent may be correct
that his abduction was "shocking" and in violation of general international
law principles, the decision whether he should be returned to Mexico, as a
matter outside the Treaty, is a matter for the Executive Branch.
DOCTRINE: The presence of an extradition treaty between the United
States and another country does not necessarily preclude obtaining a citizen
of that nation through abduction.
FACTS:
1. Respondent, Humberto Alyarez-Machain, is a citizen and resident of
Mexico. He was indicted for participating in the kidnap and murder of
United States Drug Enforcement Administration (DEA) special agent
Enrique Camarena-Salazar and a Mexican pilot working with Camarena,
Alfredo Zavala-Avelar.
2. The DEA believes that respondent, a medical doctor, participated in the
murder by prolonging agent Camarena's life so that others could further
torture and interrogate him.
3. On April 2, 1990, respondent was forcibly kidnaped from his medical office
in Guadalajara, Mexico, to be flown by private plane to El Pas-o, Texas,
where he was arrested by DEA officials. The District Court concluded that
DEA agents were responsible for respondent's abduction, although they
were not personally involved in it.
4. Respondent moved to dismiss the indictment, claiming that his abduction
constituted outrageous governmental conduct, and that the District Court
lacked jurisdiction to try him because he was abducted in violation of the
extradition treaty between the United States and Mexico.
5. The District Court rejected the outrageous governmental conduct claim, but
held that it lacked jurisdiction to try respondent because his abduction
violated the Extradition Treaty. The District Court discharged respondent
and ordered that he be repatriated to Mexico.
6. The Court of Appeals affirmed the dismissal of the indictment and the
repatriation of respondent, relying on its decision in United States v.
Verdugo-Urquidez. In Verdugo, the Court of Appeals held that the forcible
abduction of a Mexican national with the authorization or participation of
the United States violated the Extradition Treaty between the United States
and Mexico.
7. Although the Treaty does not expressly prohibit such abductions, the Court
of Appeals held that the "purpose" of the Treaty was violated by a forcible
abduction, which, along with a formal protest by the offended nation, would
give a defendant the right to invoke the Treaty violation to defeat
jurisdiction of the District Court to try him. The Court of Appeals further
 held that the proper remedy for such a violation would be dismissal of the
indictment and repatriation of the defendant to Mexico.
8. In the instant case, the Court of Appeals affirmed the District Court's
finding that the United States had authorized the abduction of respondent,
and that letters from the Mexican Government to the United States
Government served as an official protest of the Treaty violation. Therefore,
the Court of Appeals ordered that the indictment against respondent be
dismissed, and that respondent be repatriated to Mexico. We granted
certiorari and now reverse.
ISSUES: Whether a criminal defendant, abducted to the United States from a
nation with which it has an extradition treaty, thereby acquires a defense to
the jurisdiction of this country's courts? We hold that he does not, and that he
may be tried in federal district court for violations of the criminal law of the
United States.
RULING: The judgment of the Court of Appeals is therefore reversed, and the
case is remanded for further proceedings consistent with this opinion.
RATIO:
1. United States v. Rauscher, the issue is whether the Webster-
Ashburton Treaty of 1842, which governed extraditions between
England and the United States, prohibited the prosecution of
defendant Rauscher for a crime other than the crime for which he
had been extradited. Whether this prohibition, known as the doctrine
of specialty, was an intended part of the treaty had been disputed
between the two nations for some time. In the Rauscher case, Justice
Miller delivered the opinion of the Court, which carefully examined
the terms and history of the treaty; the practice of nations in regards
to extradition treaties; the case law from the States; and the writings
of commentators, and reached the following conclusion: "A person
who has been brought within the jurisdiction of the court by
virtue of proceedings under an extradition treaty, can only be
tried for one of the offences described in that treaty, and for the
offence with which he is charged in the proceedings for his
extradition, until a reasonable time and opportunity have been
given him, after his release or trial upon such charge, to return
to the country from whose asylum he had been forcibly taken
under those proceedings." Unlike the case before us today, the
defendant in Rauscher had been brought to the United States by way
of an extradition treaty; there was no issue of a forcible abduction.
2. Ker v. Illinois: Issue of a defendant brought before the court by way of a
forcible abduction. Frederick Ker had been tried and convicted in an Illinois
court for larceny; his presence before the court was procured by means of
forcible abduction from Peru. A messenger was sent to Lima with the
proper warrant to demand Ker by virtue of the extradition treaty between
Peru and the United States. The messenger, however, disdained reliance on
the treaty processes, and instead forcibly kidnaped Ker and brought him to
the United States. We distinguished Ker's case from Rauscher on the basis
that Ker was not brought into the United States by virtue of the
extradition treaty between the United States and Peru, and rejected
Ker's argument that he had a right under the extradition treaty to be
returned to this country only in accordance with its terms. We rejected
Ker's due process argument more broadly, holding. in line with "the highest
authorities." that such forcible abduction is no sufficient reason why the
party should not answer when brought within the jurisdiction of the
court which has the right to try him for such an offence, and presents
no valid objection to his trial in such court.
3. Frisbie v. Collins: we applied the rule in Ker to a case in which the
defendant had been kidnaped in Chicago by Michigan officers and brought
to trial in Michigan. We upheld the conviction over objections based on the
Due Process Clause and the federal Kidnaping Act, and stated: "This Court
has never departed from the rule announced in Ker that the power of a
court to try a person for crime is not impaired by the fact that he had
been brought within the court's jurisdiction by reason of a `forcible
abduction.' No persuasive reasons are now presented to justify overruling
this line of cases. They rest on the sound basis that due process of law is
satisfied when one present in court is convicted of crime after having been
fairly apprised of the charges against him and after a fair trial in accordance
with constitutional procedural safeguards. There is nothing in the
Constitution that requires a court to permit a guilty person rightfully
convicted to escape justice because he was brought to trial against his
will."
4. The history of negotiation and practice under the Treaty fails to show
that abductions outside of the Treaty constitute a violation of the
Treaty. As the Solicitor General notes, the Mexican Government was made
aware, as early as 1906, of the Ker doctrine, and the United States' position
that it applied to forcible abductions made outside of the terms of the United
States-Mexico Extradition Treaty. Nonetheless, the current version of the
Treaty, signed in 1978, does not attempt to establish a rule that would in
any way curtail the effect of Ker. Moreover, although language which
would grant individuals exactly the right sought by respondent had been
considered and drafted as early as 1935 by a prominent group of legal
scholars sponsored by the faculty of Harvard Law School, no such clause
appears in the current Treaty.
5. Thus, the language of the Treaty, in the context of its history, does not
support the proposition that the Treaty prohibits abductions outside of
its terms. The remaining question, therefore, is whether the Treaty
should be interpreted so as to include an implied term prohibiting
 prosecution where the defendant's presence is obtained by means other
than those established by the Treaty.
6. Respondent may be correct that respondent's abduction was "shocking," and
that it may be in violation of general international law principles. Mexico
has protested the abduction of respondent through diplomatic notes and the
decision of whether respondent should be returned to Mexico, as a matter
outside of the Treaty, is a matter for the Executive Branch. We conclude,
however, that respondent's abduction was not in violation of the
Extradition Treaty between the United States and Mexico, and
therefore the rule of Ker v. Illinois is fully applicable to this case. The
fact of respondent's forcible abduction does not therefore prohibit his
trial in a court in the United States for violations of the criminal laws of
the United States.
 009 SECRETARY OF JUSTICE vs. LANTION RESOLUTION (Rosales)
October 17, 2000 | Puno, J. | Extradition
PETITIONER: Secretary of Justice (Franklin M. Drilon)
RESPONDENTS: Hon. Ralph C. Lantion, Presiding Judge, Regional Trial
Court of Manila Branch 25, and Mark B. Jimenez
SUMMARY (combination of Decision and Resolution): On 13 January 1977,
then President Ferdinand E. Marcos issued Presidential Decree 1069
"Prescribing the Procedure for the Extradition of Persons Who Have Committed
Crimes in a Foreign Country". On 13 November 1994, then Secretary of Justice
Franklin M. Drilon, representing the Government of the Republic of the
Philippines, signed in Manila the "Extradition Treaty Between the Government
of the Republic of the Philippines and the Government of the United States of
America. "The Senate, by way of Resolution 11, expressed its concurrence in the
ratification of said treaty. On 18 June 1999, the Department of Justice received
from the Department of Foreign Affairs U. S. Note Verbale 0522 containing a
request for the extradition of Mark Jimenez to the United States. Jimenez was
charged in the United States for several violations. Pending evaluation of the
aforestated extradition documents, Jimenez requested copies of the official
extradition request from the US Government, as well as all documents and
papers submitted therewith, and that he be given ample time to comment on the
request after he shall have received copies of the requested papers. The Secretary
denied the request. Jimenez filed with the RTC a petition against the Secretary of
Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau
of Investigation, for mandamus, certiorari, prohibition, and to enjoin the
Secretary of Foreign Affairs and the Director of the NBI from performing any
act directed to the extradition of Jimenez to the United States, with an
application for the issuance of a temporary restraining order and a writ of
preliminary injunction. The trial court ruled in favor of Jimenez. The Secretary
filed a petition for certiorari before the Supreme Court. On January 18, 2000, by
a vote of 9-6, the SC dismissed the petition and ordered the Justice Secretary to
furnish Jimenez copies of the, extradition request and its supporting papers and
to grant him a reasonable period within which to file his comment with
supporting evidence. Hence, this petition by the Secretary of Justice. The issue is
WoN Jimenez had the right to notice and hearing during the evaluation stage of
an extradition process? The SC held that he did not. There is no provision in the
Treaty and in PD 1069 which gives an extraditee the right to demand from the
Justice Secretary copies of the extradition request from the US government and
its supporting documents and to comment thereon while the request is still
undergoing evaluation. The DFA and the DOJ, as well as the US government,
maintained that the Treaty and PD 1069 do not grant the extraditee a right to
notice and hearing during the evaluation stage of an extradition process. It is
neither an international practice to afford a potential extraditee with a copy of the
extradition papers during the evaluation stage of the extradition process. Jimenez
is, thus, bereft of the right to notice and hearing during the extradition process’
evaluation stage. Further, as an extradition proceeding is not criminal in
character and the evaluation stage in an extradition proceeding is not akin to a
preliminary investigation, the due process safeguards in the latter do not
necessarily apply to the former.
DOCTRINE: An extradition proceeding is sui generis. It is not a criminal
proceeding which will call into operation all the rights of an accused as
guaranteed by the Bill of Rights. To begin with, the process of extradition does
not involve the determination of the guilt or innocence of an accused. His guilt
or innocence will be adjudged in the court of the state where he will be
extradited. Hence, as a rule, constitutional rights that are only relevant to
determine the guilt or innocence of an accused cannot be invoked by an
extraditee especially by one whose extradition papers are still undergoing
evaluation.
FACTS (this is the Resolution, the Main Decision is written below):
125. On January 18, 2000, by a vote of 9-6, we dismissed the petition at bar and
ordered the Secretary of Justice Franklin Drilon to furnish Mark B. Jimenez
copies of the extradition request and its supporting papers and to grant him
a reasonable period within which to file his comment with supporting
evidence.
126. On February 3, 2000, Drilon timely filed an Urgent Motion for
Reconsideration. He assails the decision on the following grounds:
a. There is a substantial difference between an evaluation process
antecedent to the filing of an extradition petition in court and a
preliminary investigation.
b. Absence of notice and hearing during the evaluation process will
not result in a denial of fundamental fairness.
c. In the evaluation process, instituting a notice and hearing
requirement satisfies no higher objective.
d. The deliberate omission of the notice and hearing requirement in
the Philippine Extradition Law is intended to prevent flight.
e. There is a need to balance the interest between the discretionary
powers of government and the rights of an individual.
f. The instances cited in the assailed majority decision when the twin
rights of notice and hearing may be dispensed with in this case
results in a non sequitur conclusion.
g. Jimenez is not placed in imminent danger of arrest by the
Executive Branch necessitating notice and hearing.
h. By instituting a 'proceeding' not contemplated by PD No. 1069, the
Supreme Court has encroached upon the constitutional boundaries
separating it from the other two co-equal branches of government.
i. Bail is not a matter of right in proceedings leading to extradition or
in extradition proceedings.
127. On March 28, 2000, a 58-page Comment was filed by the Mark B. Jimenez,
opposing Drilon’s Urgent Motion for Reconsideration.
 128. On April 5, 2000, Drilon filed an Urgent Motion to Allow Continuation
and Maintenance of Action and Filing of Reply. Thereafter, Drilon filed on
June 7, 2000 a Manifestation with the attached Note 327/00 from the
Embassy of Canada and Note No. 34 from the Security Bureau of the
Hongkong SAR Government Secretariat.
129. On August 15, 2000, Jimenez filed a Manifestation and Motion for Leave to
File Rejoinder in the event that Drilon's April 5, 2000 Motion would be
granted. Jimenez also filed on August 18, 2000, a Motion to Expunge from
the records Drilon's June 7, 2000 Manifestation with its attached note
verbales. Except for the Motion to Allow Continuation and Maintenance of
Action, the Court denies these pending motions and hereby resolves
petitioner's Urgent Motion for Reconsideration.
ISSUE/s:
30. WoN during the evaluation stage of the extradition proceedings, Mark B.
Jimenez is entitled to the basic due process rights of notice and hearing –
NO, because constitutional rights that are only relevant to determine the
guilt or innocence of an accused cannot be invoked by an extraditee
especially by one whose extradition papers are still undergoing evaluation.
RULING: WHEREFORE, the Urgent Motion for Reconsideration is
GRANTED. The Decision in the case at bar promulgated on January18, 2000 is
REVERSED. The assailed Order issued by the public respondent judge on August 9,
1999 is SET ASIDE. The temporary restraining order issued by this Court on August
17, 1999 is made PERMANENT. The Regional Trial Court of Manila, Branch 25 is
enjoined from conducting further proceedings in Civil Case No. 99-94684.
RATIO:
1. FIRST. P.D. No. 1069 which implements the RP-US Extradition
Treaty provides the time when an extraditee shall be furnished a
copy of the petition for extradition as well as its supporting
papers, i.e., after the filing of the petition for extradition in the
extradition court:
a. Sec 6 states “… Upon receipt of the answer, or should the
accused after having received the summons fail to answer
within the time fixed, the presiding judge shall hear the case
or set another date for the hearing thereof.”
b. It is of judicial notice that the summons includes the petition
for extradition which will be answered by the extraditee.
2. There is no provision in the RP-US Extradition Treaty and in P.D.
No. 1069 which gives an extraditee the right to demand from the
petitioner Secretary of Justice copies of the extradition request from
the US government and its supporting documents and to comment
thereon while the request is still undergoing evaluation. We
cannot write a provision in the treaty giving Jimenez that right where
there is none. It is well-settled that a “court cannot alter, amend, or
add to a treaty by the insertion of any clause, small or great, or
dispense with any of its conditions and requirements or take away
any qualification, or integral part of any stipulation, upon any motion
of equity, or general convenience, or substantial justice.”
3. SECOND. All treaties, including the RP-US Extradition
Treaty, should be interpreted in light of their intent. Nothing less
than the Vienna Convention on the Law of Treaties to which the
Philippines is a signatory provides that “a treaty shall be interpreted
in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in light of its object and
purpose.”
a. The preambular paragraphs of P.D. No. 1069 define its
intent: “WHEREAS, the suppression of crime is the
concern not only of the state where it is committed but also
of any other state to which the criminal may have escaped,
because it saps the foundation of social life and is an outrage
upon humanity at large, and it is in the interest of civilized
communities that crimes should not go unpunished”
4. It ought to follow that the RP-US Extradition Treaty calls for an
interpretation that will minimize if not prevent the escape of
extraditees from the long arm of the law and expedite their trial. The
submission of Jimenez, that as a probable extraditee under the RP-
US Extradition Treaty he should be furnished a copy of the US
government request for his extradition and its supporting documents
even while they are still under evaluation by Secretary of Justice,
does not meet this desideratum. The fear of the Secretary of Justice
that the demanded notice is equivalent to a notice to flee must be
deeply rooted on the experience of the executive branch of our
government. As it comes from the branch of our government in
charge of the faithful execution of our laws, it deserves the careful
consideration of this Court.
5. THIRD. An equally compelling factor to consider is
the understanding of the parties themselves to the RP-US Extradition
Treaty as well as the general interpretation of the issue in question by
other countries with similar treaties with the Philippines. The rule is
recognized that while courts have the power to interpret treaties, the
meaning given them by the departments of government particularly
charged with their negotiation and enforcement is accorded great
weight.
6. Our executive department of government, thru the Department of
Foreign Affairs and the Department of Justice, has steadfastly
 maintained that the RP-US Extradition Treaty and P.D. No. 1069 do
not grant the private respondent a right to notice and hearing during
the evaluation stage of an extradition process. This understanding of
the treaty is shared by the US government, the other party to the
treaty. This interpretation by the two governments cannot be given
scant significance. It will be presumptuous for the Court to assume
that both governments did not understand the terms of the treaty they
concluded. Yet, this is not all. Other countries with similar
extradition treaties with the Philippines have expressed the same
interpretation adopted by the Philippine and US governments.
7. FOURTH. Jimenez peddles the must be afforded the right to notice
and hearing as required by our Constitution. We are not
persuaded. An extradition proceeding is sui generis. It is not a
criminal proceeding which will call into operation all the rights
of an accused as guaranteed by the Bill of Rights. To begin
with, the process of extradition does not involve the
determination of the guilt or innocence of an accused. His guilt
or innocence will be adjudged in the court of the state where he
will be extradited. Hence, as a rule, constitutional rights that are
only relevant to determine the guilt or innocence of an accused
cannot be invoked by an extraditee especially by one whose
extradition papers are still undergoing evaluation.
8. Differences between an extradition proceeding and a criminal
proceeding:
a. An extradition proceeding is summary in nature while
criminal proceedings involve a full-blown trial.
b. In contradistinction to a criminal proceeding, the rules of
evidence in an extradition proceeding allow admission of
evidence under less stringent standards.
c. In terms of the quantum of evidence to be satisfied, a
criminal case requires proof beyond reasonable doubt for
conviction while a fugitive may be ordered extradited upon
showing of the existence of a prima facie case.
d. Unlike in a criminal case where judgment becomes
executory upon being rendered final, in an extradition
proceeding, our courts may adjudge an individual
extraditable but the President has the final discretion to
extradite him.
9. As an extradition proceeding is not criminal in character and the
evaluation stage in an extradition proceeding is not akin to a
preliminary investigation, the due process safeguards in the
latter do not necessarily apply to the former. This we hold for the
procedural due process required by a given set of circumstances
must begin with a determination of the precise nature of the
government function involved as well as the private interest that
has been affected by governmental action. The concept of due
process is flexible for not all situations calling for procedural
safeguards call for the same kind of procedure.
10. FIFTH. Jimenez would also impress upon the Court the urgency of
his right to notice and hearing considering the alleged threat to his
liberty "which may be more priceless than life." Both the RP-US
Extradition Treaty and P.D. No. 1069 clearly provide that Jimenez
may be provisionally arrested only pending receipt of the request for
extradition. Our DFA has long received the extradition request from
the United States and has turned it over to the DOJ. It is undisputed
that until today, the United States has not requested for Jimenez’s
provisional arrest. Therefore, the threat to Jimenez’s liberty has
passed. It is more imagined than real. As the extradition process is
still in the evaluation stage of pertinent documents and there is no
certainty that a petition for extradition will be filed in the appropriate
extradition court, the threat to Jimenez’s liberty is merely
hypothetical.
11. SIXTH. Jimenez’s plea to due process collides with important state
interests which cannot also be ignored for they serve the interest of
the greater majority. The clash of rights demands a delicate
balancing of interests approach which is a fundamental postulate of
constitutional law.
12. Considering that in the case at bar, the extradition proceeding is only
at its evaluation stage, the nature of the right being claimed by
Jimenez is nebulous and the degree of prejudice he will allegedly
suffer is weak, we accord greater weight to the interests espoused by
the government thru the Secretary of Justice.
13. In tilting the balance in favor of the interests of the State, the Court
stresses that it is not ruling that Jimenez has no right to due process
at all throughout the length and breadth of the extrajudicial
proceedings.
14. P.D. No. 1069 which implements the RP-US Extradition Treaty
affords an extraditee sufficient opportunity to meet the evidence
against him once the petition is filed in court. The time for the
extraditee to know the basis of the request for his extradition is
merely moved to the filing in court of the formal petition for
extradition. The extraditee's right to know is momentarily withheld
during the evaluation stage of the extradition process to
accommodate the more compelling interest of the State to prevent
 escape of potential extraditees which can be precipitated by
premature information of the basis of the request for his extradition.

Melo’s Dissenting Opinion

1. The source of Jimenez’s basic due process rights is Section 1, Article
III of the Constitution which is a self-executory provision, meaning,
it is by itself directly or immediately applicable without need of
statutory implementation, hence may be invoked by proper parties
independently or even against legislative enactment.
2. There can be excessive layers of appeals and remedies. However, the
observance of due process can hardly be tagged as excessive. Either
it is afforded the citizen or not. In the first place, due process during
the evaluation stage forms part of administrative due process. The
notice and hearing afforded when the petition for extradition is filed
in court form part of judicial due process.

Ynares-Santiago’s Dissenting Opinion

1. I find nothing unreasonable, illegal or repugnant for a man about to
be brought to trial to ask for the charges raised against him. It is a
perfectly natural and to be-expected request. There is also nothing in
the RP-US Extradition Treaty that expressly prohibits the giving of
such information to an extraditee before trial.
2. Any right not prohibited by the Treaty which arises from Philippine
law, custom or traditions of decency and fairness should be granted
and not denied.
3. Absent clear and specific prohibitions in a treaty, the procedure by
which rights are enforced and wrongs redressed is primarily one of
national regulation and control. There is no universal uniform
procedure required of all countries. Every State has the prerogative
of devising its own guidelines in securing essential justice. The fact
that certain countries do not follow the practice does not mean that
we cannot adopt measures that are fair, protective of private interests
to life and liberty, and not really damaging to Philippine and
American governmental concerns.
4. I do not see any "important State interests" or any "government's
promotion of fundamental public interests or policy objectives"
being prejudiced. Jimenez’s right to know the charges against him
early does not clash in any way with any paramount national
interest. The invocation of State interests by the Secretary of Justice
is more illusive and rhetorical than real. The protection of human
rights has never been denied on grounds of comity among the three
great departments of Government.
009 SECRETARY OF JUSTICE vs. LANTION MAIN DECISION (Rosales)
January 18. 2000| Melo, J. | Criminal and Civil Jurisdiction
PETITIONER: Secretary of Justice (Franklin M. Drilon)
RESPONDENTS: Hon. Ralph C. Lantion, Presiding Judge, Regional Trial
Court of Manila Branch 25, and Mark B. Jimenez
SUMMARY: On 13 January 1977, then President Ferdinand E. Marcos issued
Presidential Decree 1069 "Prescribing the Procedure for the Extradition of
Persons Who Have Committed Crimes in a Foreign Country". On 13 November
1994, then Secretary of Justice Franklin M. Drilon, representing the Government
of the Republic of the Philippines, signed in Manila the "Extradition Treaty
Between the Government of the Republic of the Philippines and the Government
of the United States of America. "The Senate, by way of Resolution 11,
expressed its concurrence in the ratification of said treaty. On 18 June 1999, the
Department of Justice received from the Department of Foreign Affairs U. S.
Note Verbale 0522 containing a request for the extradition of Mark Jimenez to
the United States. Jimenez was charged in the United States for several
violations. Pending evaluation of the aforestated extradition documents, Jimenez
requested copies of the official extradition request from the US Government, as
well as all documents and papers submitted therewith, and that he be given
ample time to comment on the request after he shall have received copies of the
requested papers. The Secretary denied the request. Jimenez filed with the RTC
a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and
the Director of the National Bureau of Investigation, for mandamus, certiorari,
prohibition, and to enjoin the Secretary of Foreign Affairs and the Director of the
NBI from performing any act directed to the extradition of Jimenez to the United
States, with an application for the issuance of a temporary restraining order and a
writ of preliminary injunction. The trial court ruled in favor of Jimenez. The
Secretary filed a petition for certiorari before the Supreme Court. The issues are
WoN during the evaluation stage of the extradition proceedings, Mark B.
Jimenez is entitlted to the basic due process rights of notice and hearing and
WoN the entitlement of basic due process rights at the evaluation stage of the
extradition proceedings would constitute a rbeach of the legal commitments and
obligations of the Philippine government under the RP-US Extradition Treaty.
For the first issue, the SC held YES, because in the absence of a law or principle
of law, we must apply the rules of fair play. The basic rights of notice and
hearing pervade not only in criminal and civil proceedings, but in administrative
proceedings as well. Non-observance of these rights will invalidate the
proceedings. Individuals are entitled to be notified of any pending case affecting
their interests, and upon notice, they may claim the right to appear therein and
present their side and to refute the position of the opposing parties. As for the
second issue, the SC held NO, because an application of the basic twin due
process rights of notice and hearing will not go against the treaty or the
implementing law. Neither the Treaty nor the Extradition Law precludes these
rights from a prospective extraditee. Nothing is written in the the RP-US
Extradition Treaty, the Extradition Law, as well as American jurisprudence and
procedures on extradition, regarding any prohibition against the conferment of
the two basic due process rights of notice and hearing during the evaluation stage
of the extradition proceedings.
DOCTRINE: The papers by Jimenez pertain to official government action from
the US government. However, no official action from the Philippines has yet
been taken. Also, the papers have some relation to matters of foreign relations
with the US Government. During the evaluation procedure, no official
governmental action of our government has as yet been done; hence, the
invocation of the right is premature. However, later, records of the extradition
hearing would already fall under matters of public concern because of our
government by then shall have already made an official decision to grant the
extradition request.
FACTS:
130. On January 13, 1977, President Marcos issued PD No. 1069 “Prescribing
the Procedure for the Extradition of Persons who have Committted Crimes
in a Foreign Country.” This decree was founded on the extradition treaty
with the Republic of Indonesia and the intention of the Philippines to enter
into similar treaties with other interested countries.
131. On November 13, 1994, Secretary of Justice Franklin M. Drilon,
representing the Government of the Philippines, signed the “Extradition
Treaty Between the Government of the Repuglic of PH and the Government
of USA (known as the RP-US Extradition Treaty).” The Senate expressed
its concurrence by way of Resolution no. 11.
132. On June 18, 1999, the Department of Justice received from the Department
of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the
extradition of private respondent Mark Jimenez to the United States. On the
same day, Drilon issued Department Order No. 249 designating and
authorizing a panel of attorneys to take charge of and to handle the case
pursuant to Section 5(1) of Presidential Decree No. 1069.
133. Pending evaluation of the aforestated extradition documents, Mark B.
Jimenez, through counsel, wrote a letter dated July 1, 1999 addressed to
Drilon requesting copies of the official extradition request from the U.S.
Government, as well as all documents and papers submitted. Later, Jimenez
requested that preliminarily, he be given at least a copy of, or access to, the
request of the United States Government, and after receiving a copy of the
Diplomatic Note, a period of time to amplify on his request.
134. Drilon, in response to Jimenez, denied the foregoing requests saying:
a. It is premature to furnish you with copies of the extradition request
and supporting documents from the United States Government,
pending evaluation by this Department of the sufficiency of the
extradition documents.
b. Evaluation by this Department of the documents is not a
preliminary investigation nor akin to preliminary investigation of
 criminal cases. We merely determine whether the procedures and
requirements under the relevant law and treaty have been complied
with by the Requesting Government. The constitutionally
guaranteed rights of the accused in all criminal prosecutions are
therefore not available.
c. The United States had to secure orders from the concerned District
Courts authorizing the United States to disclose certain grand jury
information to Philippine government and law enforcement
personnel for the purpose of extradition of Mr. Jimenez. Any
further disclosure of the said information is not authorized by the
United States District Courts. In this particular extradition request
the United States Government requested the Philippine
Government to prevent unauthorized disclosure of the subject
information.
d. This Department is not in a position to hold in abeyance
proceedings in connection with an extradition request as provide
for under Article 26 of the Vienna Convention on the Law of
Treaties.
135. On August 6, 1999, Jimenez filed with the RTC of NCR, presided over by
Hon. Ralph C. Lantion, a petition against the Secretary of Justice, Secretary
of Foreign Affairs, and the Director of NBI for mandamus (to compel them
to furnish the extradition request), certiorari (to set aside Sec of Justice’s
letter), and prohibition (to restrain Drilon from considering the extradition
request and from filing and extradition petition in court). The said judge
granted the request.
136. Secretary of Justice Drilon then filed a petition to which the Court ordered a
TRO against Hon. Lantion to cease and desist from enforcing the assailed
order dated August 9, 1999. This was denied. Hence this petition.
ISSUE/s:
31. WoN during the evaluation stage of the extradition proceedings, Mark B.
Jimenez is entitlted to the basic due process rights of notice and hearing –
YES, because in the absence of a law or principle of law, we must apply the
rules of fair play.
1. WoN the entitlement of basic due process rights at the evaluation
stage of the extradition proceedings would constitute a rbeach of the
legal commitments and obligations of the Philippine government
under the RP-US Extradition Treaty – NO, because an application of
the basic twin due process rights of notice and hearing will not go
against the treaty or the implementing law. Neither the Treaty nor the
Extradition Law precludes these rights from a prospective extraditee.
RULING: WHEREFORE, in view of the foregoing premises, the instant petition is
hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private
respondent copies of the extradition request and its supporting papers, and to grant
him a reasonable period within which to file his comment with supporting evidence.
The incidents in Civil Case No. 99-94684 having been rendered moot and academic
by this decision, the same is hereby ordered dismissed.
RATIO:
2. ISSUE 1: The RP-US Extradition Treaty which was executed only
on November 13, 1994, ushered into force the implementing
provisions of Presidential Decree No. 1069, also called as the
Philippine Extradition Law. Section 2(a) thereof defines extradition
as "the removal of an accused from the Philippines with the object of
placing him at the disposal of foreign authorities to enable the
requesting state or government to hold him in connection with any
criminal investigation directed against him or the execution of a
penalty imposed on him under the penal or criminal law of the
requesting state or government."
3. The executive authority given the task of evaluating the sufficiency
of the request and the supporting documents is the Secretary of
Foreign Affairs. The Secretary of Foreign Affairs must also see to it
that the accompanying documents received in support of the request
had been certified by the principal diplomatic or consular officer of
the Requested State resident in the Requesting State. In this light,
Paragraph 3, Article 3 of the RP-US Extradition Treaty provides that
"extradition shall not be granted if the executive authority of the
Requested State determines that the request is politically motivated,
or that the offense is a military offense which is not punishable under
non-military penal legislation."
4. Upon a finding made by the Secretary of Foreign Affairs that the
extradition request and its supporting documents are sufficient and
complete in form and substance, he shall deliver the same to the
Secretary of Justice, who shall immediately designate and authorize
an attorney in his office to take charge of the case. The lawyer
designated shall then file a written petition with the proper regional
trial court of the province or city, with a prayer that the court take the
extradition request under consideration.
5. The presiding judge of the regional trial court, upon receipt of the
petition for extradition, shall, as soon as practicable, issue an order
summoning the prospective extraditee to appear and to answer the
petition on the day and hour fixed in the order. The judge may issue
a warrant of arrest if it appears that the immediate arrest and
temporary detention of the accused will best serve the ends of
justice, particularly to prevent the flight of the prospective extraditee.
6. The Extradition Law does not specifically indicate whether the
extradition proceeding is criminal, civil, or a special proceeding. The
trial court determines whether or not the offense mentioned in the
 petition is extraditable based on the application of the dual
criminality rule and other conditions mentioned in Article 2 of the
RP-US Extradition Treaty. The trial court also determines whether or
not the offense for which extradition is requested is a political one.
7. What is the nature of the role of the Department of Justice at the
evaluation stage of the extradition proceedings? A strict observance
of the Extradition Law indicates that the only duty of the
Secretary of Justice is to file the extradition petition after the
request and all the supporting papers are forwarded to him by
the Secretary of Foreign Affairs. It is the Secretary of Foreign
Affairs who is authorized to evaluate the extradition papers, to assure
their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to
determine whether or not the request is politically motivated, or that
the offense is a military offense which is not punishable under non-
military penal legislation.
8. However, looking at the case before us, it would appear that
there was failure to abide by the provisions of PD No. 1069. For
while it is true that the extradition request was delivered to the
Department of Foreign Affairs on June 17, 1999, the following day
or less than 24 hours later, the Department of Justice received the
request, apparently without the Department of Foreign Affairs
discharging its duty of thoroughly evaluating the same and its
accompanying documents.
9. The statement of an assistant secretary at the Department of Foreign
Affairs that his Department, in this regard, is merely acting as a post
office, for which reason he simply forwarded the request to the
Department of Justice, indicates the magnitude of the error of the
Department of Foreign Affairs in taking lightly its responsibilities.
Thereafter, the Department of Justice took it upon itself to
determine the completeness of the documents and to evaluate the
same to find out whether they comply with the requirements laid
down in the Extradition Law and the RP-US Extradition Treaty.
10. The record cannot support the presumption of regularity that the
Department of Foreign Affairs thoroughly reviewed the extradition
request and supporting documents and that it arrived at a well-
founded judgment that the request and its annexed documents satisfy
the requirements of law. The Secretary of Justice, eminent as he is in
the field of law, could not privately review the papers all by himself.
He had to officially constitute a panel of attorneys.
11. The evaluation process, just like the extradition proceedings
proper, belongs to a class by itself. It is sui generis. It is not a
criminal investigation, but it is also erroneous to say that it is
purely an exercise of ministerial functions. At such stage, the
executive authority has the power: (a) to make a technical
assessment of the completeness and sufficiency of the extradition
papers; (b) to outrightly deny the request if on its face and on the
face of the supporting documents the crimes indicated are not
extraditable; and (c) to make a determination whether or not the
request is politically motivated, or that the offense is a military
one which is not punishable under non-military penal legislation.
Hence, said process may be characterized as an investigative or
inquisitorial process in contrast to a proceeding conducted in the
exercise of an administrative body's quasi-judicial power.
12. The power of investigation consists in gathering, organizing, and
analyzing evidence, which is a useful aid or tool in an administrative
agency's performance of its rule-making or quasi-judicial functions.
Notably, investigation is indispensable to prosecution. It does not
exercise judicial functions and its power is limited to investigating
the facts and making findings in respect thereto.
13. The above description applies to an administrative body authorized
to evaluate extradition documents. The body has no power to
adjudicate in regard to the rights and obligations of both the
Requesting State and the prospective extraditee. Its only power is
to determine whether the papers comply with the requirements of the
law and the treaty and, therefore, sufficient to be the basis of an
extradition petition. Such finding is thus merely initial and not final.
The body has no power to determine whether or not the
extradition should be effected. That is the role of the court. The
body's power is limited to an initial finding of whether or not the
extradition petition can be filed in court.
14. The evaluation process is akin to an administrative agency
conducting an investigative proceeding, the consequences of which
are essentially criminal since such technical assessment sets off or
commences the procedure for, and ultimately, the deprivation of
liberty of a prospective extraditee. In essence, the evaluation
process partakes of the nature of a criminal investigation. In a
number of cases, we had occasion to make available to a respondent
in an administrative case or investigation certain constitutional rights
that are ordinarily available only in criminal prosecutions.
15. The United States and the Philippines share a mutual concern about
the suppression and punishment of crime in their respective
jurisdictions. At the same time, both States accord common due
process protection to their respective citizens.
16. The basic rights of notice and hearing pervade not only in
criminal and civil proceedings, but in administrative proceedings
as well. Non-observance of these rights will invalidate the
proceedings. Individuals are entitled to be notified of any
pending case affecting their interests, and upon notice, they may
claim the right to appear therein and present their side and to
refute the position of the opposing parties.
17. In international proceedings, extradition treaties generally provide
for the presentation to the executive authority of the Requested State
of a requisition or demand for the return of the alleged offender, and
the designation of the particular officer having authority to act in
behalf of the demanding nation.
18. In the Philippine setting, it is the Department of Foreign Affairs
which should make the intial evaluation of the request, and having
satisfied itself on the points earlier mentioned, forwards the request
to the Department of Justice for the preparation and filing of the
petition for extradition. Unfortunately, in the instant case, the DFA
perfunctorily turned over the request to the DOJ which has taken
over the task of evaluating the request as well as thereafter, if so
warranted, preparing, filing, and prosecuting the petition for
extradition.
19. Is Jimenez then precluded from enjoying the right to notice and
hearing at a later time without prejudice to him? In the case at
bar, the papers by Jimenez pertain to official government action
from the US government. However, no official action from the
Philippines has yet been taken. Also, the papers have some
relation to matters of foreign relations with the US Government.
During the evaluation procedure, no official governmental action
of our government has as yet been done; hence, the invocation of
the right is premature. However, later, records of the extradition
hearing would already fall under matters of public concern
because of our government by then shall have already made an
official decision to grant the extradition request.
20. ISSUE 2: From the procedures earlier abstracted, after the filing of
the extradition petition and during the judicial determination of the
propriety of extradition, the rights of notice and hearing are clearly
granted to the prospective extraditee. However, prior thereto, the law
is silent as to these rights.
21. Reference to the U.S. extradition procedures also manifests this
silence. Jimenez interprets this silence as unavailability of these
rights. Consequently, he describes the evaluation procedure as an "ex
parte technical assessment" of the sufficiency of the extradition
request and the supporting documents. We disagree.
22. In the absence of a law or principle of law, we must apply the rules
of fair play. Nothing is written in the the RP-US Extradition Treaty,
the Extradition Law, as well as American jurisprudence and
procedures on extradition, regarding any prohibition against the
conferment of the two basic due process rights of notice and hearing
during the evaluation stage of the extradition proceedings.
23. An application of the basic twin due process rights of notice and
hearing will not go against the treaty or the implementing law.
Neither the Treaty nor the Extradition Law precludes these rights
from a prospective extraditee.
24. In the case at bar, Jimenez does not only face a clear and present
danger of loss of property or employment, but of liberty itself, which
may eventually lead to his forcible banishment to a foreign land. The
convergence of Drilon's favorable action on the extradition request
and the deprivation of Jimenez’s liberty is easily comprehensible.
25. The constitutional issue in the case at bar does not even call for
"justice outside legality," since Jimenez's due process rights,
although not guaranteed by statute or by treaty, are protected by
constitutional guarantees. We would not be true to the organic law of
the land if we choose strict construction over guarantees against the
deprivation of liberty. That would not be in keeping with the
principles of democracy on which our Constitution is premised.
Vitug’s Separate Opinion
1. The only real issue is WoN Jimenez can validly ask for copies of
pertinent documents while the application for extradition against him
is still undergoing process by the Executive Department and to this I
agree.
2. There is not hornbook rule to determine whether or not an
information is of public concern. The term “public concern” eludes
exactitude and it can easily embrace a broad spectrum of matters
which the public may want to know either because the subject can
affect their lives or simply because it arouses concern.
3. The right of the extradite to be furnished, upon request, with a copy
of the relevant documents and to file his comment is not necessarily
anathema to the proceedings duly mandated by the treaty to be made.
Kapunan’s Separate Opinion
1. There is no allegation in the petition that Judge Lantion is without
jurisdiction to hear the case below or that he has exceeded his
jurisdiction in hearing the same. Nor is there any other act, ruling,
 order, or decision, apart from the TRO already mentioned, of
respondent Judge that is being challenged in the petition before us.
2. Assuming that the present case has not become moot and academic,
still, it should be dismissed for lack of merit. The function and
responsibilities of the Department of Justice in evaluating the
extradition papers involve the exercise of judgment. They involve a
determination whether the request for extradition conforms fully to
the requirements of the extradition treaty and whether the offense is
extraditable.
3. Due process rights in a preliminary investigation is now an
established principle. The respondent has a right of access to all of
the evidence. He has the right to submit controverting evidence. I see
no reason why the same rights may not be accorded a person sought
to be extradited at the stage where the Department of Justice
evaluates whether a petition for extradition would be filed before a
regional trial court. If denied such rights, not only denial of due
process rights but of equal protection may be raised.
4. It is suggested that after a petition for extradition is filed with a
regional trial court, the person sought to be extradited may exercise
all due process rights. But why must he wait until the petition for
extradition is filed? As succinctly expressed, if the right to notice and
hearing is to serve its full purpose, then, it is clear that it must be
granted at a time when the deprivation can still be prevented.
Quisumbing’s Concurring Opinion
1. The constitutionally mandated duties of our government to the
individual deserve preferential consideration when they collide with
its treaty obligations to the government of another state. This is so
although we recognize treaties as a source of binding obligations
under generally accepted principles of international law incorporated
in our Constitution as part of the law of the land.
2. What Jimenez is asking our Executive department (notice, copies of
documents, and the opportunity to protect himself at the earliest time
against probable peril) does not, in my view, violate our Extradition
Treaty with the USA. His request if granted augurs well for
transparency in interstate or intergovernmental relations rather than
secrecy which smacks of medieval diplomacy and the inquisition
discredited long ago.
Ynares-Santiago’s Concurring Opinion
1. I see no ill effects which would arise if the extradition request and
supporting documents are shown to him now, instead of later. Until
proved to be a valid subject for extradition, a person is presumed
innocent or not covered by the sanctions of either criminal law or
international treaty. At any stage where a still prospective extraditee
only seeks to know so that he can prepare and prove that he should
not be extradited, there should be no conflict over the extension to
him of constitutional protections guaranteed to aliens and citizens
alike.
2. I fail to see how silence can be interpreted as exclusion. The treaty is
silent because at this stage, the preliminary procedure is still an
internal matter. And when a law or treaty is silent, it means a right or
privilege may be granted. It is not the other way around.
3. I see nothing in our laws or in the Treaty which prohibits the
prospective extraditee from knowing until after the start of trial
whether or not the extradition treaty applies to him.
4. I maintain that the paramount consideration of guaranteeing the
constitutional rights of Jimenez override the concerns of Sec of
Justice Drilon. There should be no hurried or indifferent effort to
routinely comply with all requests for extradition.
Puno’s Dissenting Opinion
1. The case at bar, I respectfully submit, does not involve an
irreconcilable conflict between the RP-US Extradition Treaty and
our Constitution where we have to choose one over the other. Rather,
it calls for a harmonization between said treaty and our Constitution.
To achieve this desirable objective, the Court should consider
whether the constitutional rights invoked by Jimenez has truly been
violated and even assuming so, whether he will be denied
fundamental fairness. It is only when their violation will destroy the
Jimenez's right to fundamental fairness that his constitutional claims
should be given primacy.
2. Given this balancing approach, it is my humble submission that
considering all the facts and facets of the case, Jimenez has not
proved entitlement to the right he is claiming. The majority holds
that the Constitution, the RP-US extradition and P.D. No. 1069 do
not prohibit Jimenez's claims, hence, it should be allowed. This is too
simplistic an approach. Rights do not necessarily arise from a
vacuum. Silence of the law can even mean an implied denial of a
right. Also, constitutional litigations do not always involve a clear
cut choice between right and wrong. Sometimes, they involve a
difficult choice between right against right. In these situations, there
is need to balance the contending rights and primacy is given to the
right that will serve the interest of the nation at that particular time.
 In such instances, the less compelling right is subjected to soft
restraint but without smothering its essence.
3. As admitted in the ponencia itself, an extradition proceeding is sui
generis. It is, thus, futile to determine what it is. What is certain is
that it is not a criminal proceeding where there is an accused who
claim the entire array of rights guaranteed by the Bill of Rights. Let
it be stressed that in an extradition proceeding, there is no accused
and the guilt or innocence of the extraditee will not be passed upon
by our executive officials nor by the extradition judge. Hence,
constitutional rights that are only relevant do determine the guilt or
innocence of an accused cannot be invoked by an extraditee. Indeed,
an extradition proceeding is summary in nature which is untrue of
criminal proceedings. Even the rules of evidence are different in an
extradition proceeding.
4. In the case, at bar and with due respect, the ponencia inflates with
too much significance the threat to liberty of Jimenez to prop us its
thesis that his constitutional rights to due process and access to
information must immediately be vindicated. Allegedly, Jimenez
stands in danger of provisional arrest, hence, the need for him to be
immediately furnished copies of documents accompanying the
request for his extradition.
5. Jimenez’s fear of provisional arrest is not real. It is a self-imagined
fear for the realities on the ground show that the United States
authorities have not manifested any desire to request for his arrest.
On the contrary, they filed the extradition request through the regular
channel and, even with the pendency of the case at bar, they have not
moved for Jimenez's arrest on the ground of probable delay in the
proceedings.
6. But more important, a request for Jimenez's arrest does not mean he
will be the victim of an arbitrary arrest. He will be given due process
before he can be arrested.
7. I respectfully submit that denying Jimenez’s constitutional claim to
be furnished all documents relating to the request for his extradition
by the US authorities during their evaluation stage will not subvert
his right to fundamental fairness. It should be stressed that this is not
a case where Jimenez will not be given an opportunity to know the
basis of the request for his extradition. In truth, and contrary to the
impression of the majority, P.D. No. 1069 fixes the specific time
when he will be given the papers constituting the basis for his
extradition. Upon receipt of the summons and the petition, Jimenez
is free to foist all defense available to him. Such an opportunity does
not deny him fairness which is the essence of due process of law.
8. I respectfully submit that the majority decision has weakened the
Executive by allowing nothing less than an unconstitutional headbutt
on the power of the Executive to conduct our foreign affairs. The
majority should be cautions in involving this Court in the conduct of
the nation's foreign relations where the inviolable rule dictated by
necessity is that the nation should speak with one voice. We should
not overlook the reality that courts by their nature, are ill-equipped to
fully comprehend the foreign policy dimension of a treaty, some of
which are hidden in shadows and silhouettes.
Panganiban’s Dissenting Opinion
1. There are essentially two stages in extradition proceedings: (1) the
preliminary or evaluation stage, whereby the executive authority of
the requested state ascertains whether the extradition request is
supported by the documents and information required under the
Extradition Treaty; and (2) the extradition hearing, whereby the
petition for extradition is heard before a court of justice, which
determines whether the accused should be extradited. The instant
petition refers only to the first stage.
2. According to Jimenez, his right to due process during the preliminary
stage emanates from our Constitution, particularly Section 1, Article
III. He claims that this right arises immediately, because of the
possibility that he may be provisionally arrested pursuant to Article 9
of the RP-US Treaty.
3. Justice Melo's ponencia supports Jimenez’s contention. It states that
there are two occasions wherein the prospective extraditee may be
deprived of liberty: (1) in case of a provisional arrest pending the
submission of the extradition request and (2) his temporary arrest
during the pendency of the extradition petition in court. The second
instance is not in issue here, because no petition has yet been filed in
court.
4. However, the above-quoted Article 9 on provisional arrest is not
automatically operative at all times, and in enforcement does not
depend solely on the discretion of the requested state. From the
wordings of the provision itself, there are at least three requisites: (1)
there must be an urgency, and (2) there is a corresponding request (3)
which must be made prior to the presentation of the request for
extradition.
5. In the instant case, there appears to be no urgency characterizing the
nature of the extradition of Jimenez. Drilon does not claim any such
urgency. There is no request from the United States for the
provisional arrest of Mark Jimenez either.
6. Contrary to the apprehension of Jimenez, there is no actual danger
that Jimenez will be provisionally arrested or deprived of his liberty.
There is as yet no threat that his rights would be trampled upon,
pending the filing in court of the petition for his extradition. Hence,
there is no substantial gain to be achieved in requiring the foreign
affairs (or justice) secretary to notify and hear him during the
preliminary stage, which basically involves only the exercise of the
ministerial power of checking the sufficiency of the documents
attached to the extradition request.
7. Even granting that the arrest of Jimenez is sought at any time despite
the assurance of the justice secretary that no such measure will be
undertaken, our local laws and rules of procedure respecting the
issuance of a warrant of arrest will govern, there being no specific
provision under the Extradition Treaty by which such warrant should
issue. Therefore, Jimenez will be entitled to all the rights accorded
by the Constitution and the laws to any person whose arrest is being
sought.
 010 Secretary of Justice v. Muñoz (Sabaupan)
December 18, 2000 | De Leon Jr., J. | Criminal and civil jurisdiction
PETITIONER: Justice Serafin R. Cuevas, substituted by Artemio G. Tuquero
in his capacity as Secretary of Justice
RESPONDENTS: Juan Antonio Muñoz
SUMMARY: Hong Kong Magistrate’s Court issued a warrant for the arrest of
Muñoz for seven counts of accepting an advantage as an agent contrary to the
Prevention of Bribery Ordinance, Cap. 201 of Hong Kong and seven counts of
conspiracy to defraud, contrary to the common law of Hong Kong. Philippine
DOJ then received a request for the provisional arrest of Muñoz from HK DOJ
pursuant to the RP-Hong Kong Extradition Agreement. RTC Manila then issued
an order granting the application for provisional arrest and issuing the
corresponding Order of Arrest. Muñoz was arrested and detained at the NBI
detention cell. Muñoz filed with the CA assailing the validity of the Order of
Arrest. CA declared the Order of Arrest null and void on the ground that there
was no urgency, the request for provisional arrest and the accompanying warrant
of arrest and summary of facts were unauthenticated, the requirement of dual
criminality was not satisfied, among others. Thus, the Secretary of Justice filed
the instant petition assailing the decision of CA. Muñoz filed an Urgent Motion
for Release Pending Appeal contending that since PD 1069 sets the maximum of
provisional arrest at 20 days, and he has been detained beyond the said period,
without both a request for extradition having been received by the Philippine
DOJ and the corresponding petition for extradition having been filed in the
proper RTC, he should be released from detention. The issue is whether the
order of arrest issued by the RTC is valid. The SC ruled in the affirmative and
addressed each contention of respondent. The Court ruled that there was urgency
for the provisional arrest of respondent. Second, Second, 12 days after
respondent was provisionally arrested, the Philippine DOJ received from the HK
DOJ a request for the surrender or extradition of respondent which is in
conformity with the provisions of the extradition agreement and the extradition
law. The crucial event which tolls the provisional detention period is the
transmittal of the request for the extradition or surrender of the extradite. On the
contention that his incarceration cannot continue beyond the 20-day period
without a petition for his extradition having been filed in court, Court ruled that
from the provisions of the extradition agreement and PD 1069, for the
provisional arrest of an accused to continue, the formal request for extradition is
not required to be filed in court. It only need be received by the requested state
within the periods provided in the agreement and in the law. Also, the request for
provisional arrest of respondent and its accompanying documents are valid
despite lack of authentication. Lastly, there was sufficient factual and legal basis
for the determination of probable cause as a requisite for the issuance of the
Order of Arrest.
DOCTRINE: The process of preparing a formal request for extradition and its
accompanying documents, and transmitting them through diplomatic channels, is
not only time consuming but also leakage-prone. There is naturally a great
likelihood of flight by criminals who get an intimation of the pending request for
their extradition. To solve this problem, speedier initial steps in the form of
treaty stipulations for provisional arrest were formulated.
FACTS:
137. In September 1997, Hong Kong Magistrate’s Court at Eastern Magistracy
issued a warrant for the arrest of Muñoz for seven counts of accepting an
advantage as an agent contrary to the Prevention of Bribery Ordinance, Cap.
201 of Hong Kong and seven counts of conspiracy to defraud, contrary to
the common law of Hong Kong.
138. In September 1999, the Philippine Department of Justice (Philippine DOJ)
received a request for the provisional arrest of the Muñoz from the Mutual
Legal Assistance Unit, International Law Division of the HK Department of
Justice (HK DOJ) pursuant to Article 11(1) of the Agreement Between the
Government of the Republic of the Philippines and the Government of
Hong Kong for the Surrender of Accused and Convicted Persons (RP-Hong
Kong Extradition Agreement).
139. Philippine DOJ forwarded the request for provisional arrest to the Anti-
Graft Division of NBI. Thereafter, the RTC of Manila issued an order
granting the application for provisional arrest and issuing the corresponding
Order of Arrest.
140. Muñoz was arrested pursuant to the said order and is detained at the NBI
detention cell.
141. In October 1999, Muñoz filed with the CA a petition for certiorari,
prohibition and mandamus with application for preliminary mandatory
injunction and/or writ of habeas corpus assailing the validity of the Order of
Arrest.
142. The CA declared the Order of Arrest null and void on the following
grounds:
a. There was no urgency to warrant the request for provisional arrest
under Article 11(1) of the extradition agreement.
b. The request for provisional arrest and the accompanying warrant of
arrest and summary of facts were unauthenticated and mere
facsimile copies which are insufficient to form a basis for the
issuance of the Order of Arrest
c. The 20-day period for provisional arrest under Section 20(d) of PD
1069 otherwise known as the Philippine Extradition Law, was not
amended by Article 11(3) of the RP-Hong Kong Extradition
Agreement which provides for a 45-day period for provisional
arrest.
d. The order of arrest was issued without the judge having personally
determined the existence of probable cause.
e. The requirement of dual criminality under Section 3a of PD 1069
 has not been satisfied as the crimes for which respondent is wanted
in Hong Kong, namely accepting an advantage as an agent and
conspiracy to commit fraud, are not punishable by Philippine laws.
143. Thus. petitioner Cuevas, in his capacity as Secretary of the Department of
Justice filed the instant petition assailing the decision of CA.
144. Muñoz filed an Urgent Motion for Release Pending Appeal contending that
since PD 1069 sets the maximum of provisional arrest at 20 days, and he
has been detained beyond the said period, without both a request for
extradition having been received by the Philippine DOJ and the
corresponding petition for extradition having been filed in the proper RTC,
he should be released from detention.
145. The Secretary of Justice filed a Manifestation stressing that as early as
November 5, 1999, the Philippine DOJ had already received from HK DOJ
a formal request for the surrender of respondent. He also informed the Court
that a verified petition for the extradition of respondent is already filed and
is currently pending in RTC Manila.
ISSUE/s:
32. Whether the order of arrest issued by the RTC is valid. YES because the
order was made in conformity with the extradition agreement and the
extradition law (PD 1069).
RULING: WHEREFORE, the petition is GRANTED, and the assailed Decision of
the Court of Appeals, dated November 9, 1999, is hereby REVERSED and SET
ASIDE. Respondent's "Urgent Motion For Release Pending Appeal" is hereby
DENIED.
RATIO:
171. The issue on double criminality (Fact 6e) was prematurely raised by
respondent in the CA and SC. The issue of whether or not the rule of double
criminality applies was not for the CA to decide in the first place. The trial
court in which the petition for extradition is filed is vested with jurisdiction
to determine whether the offenses mentioned in the petition are extraditable
based on the application od dual criminality rule and other conditions
mentioned in the applicable treaty. In this case, the presiding Judge of
Branch 10 of RTC of Manila has yet to rule on the extraditability of the
offenses for which the respondent is wanted in HK.
172. First, there was urgency for the provisional arrest of respondent. Urgency is
not defined in existing treaties of Philippine legislation. However, using
reasonable standards, urgency connotes such conditions relating to the
nature of the offense charged and the personality of the prospective
extradite which would make him susceptible to the inclination to flee or
escape from the jurisdiction if he were to learn about the impending request
for his extradition and/or likely to destroy the evidence pertinent to the said
request or his eventual prosecution and without which the latter could not
proceed. These conditions exist in Muñoz’s case.
a. At the time the requet for provisional arrest was made, Muñoz’s
pending application for the discharge of a restraint order over
certain assets held in relation to the offenses with which he is being
charged was set to be heard by the CFI of HK on September 17,
1999. The HK DOJ was concerned that the pending request for
extradition of the respondent would be disclosed to the latter
during the said proceedings and would motivate Muñoz to flee the
Philippines before the request for extradition could be made.
b. Also, if Muñoz is found guilty of the charges, he may be punished
with 7 and 14 years of imprisonment (accepting an advantage and
conspiracy to defraud, respectively). The gravity of the imposable
penalty upon an accused is a factor to consider in determining the
likelihood that the accused will abscond if allowed provisional
liberty. Moreover, respondent appears to be affluent and possessed
of sufficient resources to facilitate an escape from this jurisdiction.
173. The arguments raised by respondent in support of his allegation that he is
not a flight risk do not convince the Court.
a. That respondent did not flee despite the investigation conducted by
the Central Bank and the NBI way back in 1994, nor when the
warrant for his arrest was issued by the Hong Kong ICAC in
August 1997, is not a guarantee that he will not flee now that
proceedings for his extradition are well on the way. Respondent is
about to leave the protective sanctuary of his mother state to face
criminal charges in another jurisdiction. It cannot be denied that
this is sufficient impetus for him to flee the country as soon as the
opportunity to do so arises.
174. Second, 12 days after respondent was provisionally arrested, the Philippine
DOJ received from the HK DOJ a request for the surrender or extradition of
respondent.
a. Petitioner contends that Article 11(3) of the RP-Hong Kong
Extradition Agreement16 which allows a period of 45 days for
provisional arrest absent a formal request for extradition has
amended Section 20(d) of P.D. No. 106917 which provides only a
20-day period for the same. However, this has already been
rendered moot an academic by the fact that a request for surrender
of respondent was already received 12 days after respondent’s
arrest.
b. The crucial event which tolls the provisional detention period is the
transmittal of the request for the extradition or surrender of the
16 Article 11(3). The provisional arrest of the person sought shall be terminated upon the expiration of
forty-five days from the date of arrest if the request for surrender has not been received, unless the
requesting Party can justify continued provisional arrest of the person sought in which case the period of
provisional arrest shall be terminated upon the expiration of a reasonable time not being more than a
further fifteen days. This provision shall not prevent the re-arrest or surrender of the person sought if the
request for the person's surrender is received subsequently.
17 Section 20(d). If within a period of twenty (20) days after the provisional arrest the Secretary of
Foreign Affairs has not received the request for extradition and the documents mentioned in Section 4 of
this Decree, the accused shall be released from custody.
 extradite.
175. Muñoz’s contention that his incarceration cannot continue beyond the 20-
day period without a petition for his extradition having been filed in court is
bereft of merit. From the provisions of the extradition agreement and PD
1069, for the provisional arrest of an accused to continue, the formal request
for extradition is not required to be filed in court. It only need be received
by the requested state within the periods provided in the agreement and in
the law.
176. Third, the request for provisional arrest of respondent and its accompanying
documents are valid despite lack of authentication. The language of the
provisions of the agreement18 and PD 106919 is clear. There is no
requirement for the authentication of a request for provisional arrest and its
accompanying documents.
177. Moreover, under PD 1069, the original or authenticated copies of the
decision or sentence imposed upon the accused by the requesting state or
the criminal charge and the warrant of arrest issued by the authority of the
requesting state, need not accompany the request for provisional arrest and
may, in fact, be transmitted after the said request has already been received
by the requested state.
178. The pertinent provision of RP-Hong Kong Extradition Agreement
enumerates the documents that must accompany the request:
a. An indication of the intention to request for surrender of the person
sought
b. The text of a warrant of arrest or judgment of conviction against
that person
c. A statement of penalty for that offense
d. Such further information as would justify the issue of a warrant of
arrest had the offense been committed, or the person convicted,
within the jurisdiction of the requested party.
179. The agreement does not specify that these documents must be authenticated
copies. Authentication is required for the request for surrender or
extradition but not for the request for provisional arrest.
180. The process of preparing a formal request for extradition and its
accompanying documents, and transmitting them through diplomatic
channels, is not only time consuming but also leakage-prone. There is
naturally a great likelihood of flight by criminals who get an intimation of
the pending request for their extradition. To solve this problem, speedier
initial steps in the form of treaty stipulations for provisional arrest were
formulated.
a. It is an accepted practice for the requesting state to rush its request
18 Article 11(1) of the Extradition Agreement - The application for provisional arrest shall contain an
indication of intention to request the surrender of the person sought and the text of a warrant of arrest or a
judgment of conviction against that person, a statement of the penalty for that offense, and such further
information, if any, as would be necessary to justify the issue of a warrant of arrest had the offense been
committed, or the person convicted, within the jurisdiction of the requested Party.
19 Section 20(b) of PD 1069 - A request for provisional arrest shall be sent to the Director of the National
Bureau of Investigation, Manila, either through the diplomatic channels or direct by post or telegraph.
30 in the form of a telex or diplomatic cable, the practicality of the
use of which is conceded. Even the Extradition Law (P.D. No.
1069) allows the transmission of a request for provisional arrest via
telegraph. In the advent of modern technology, the telegraph or
cable have been conveniently replaced by the facsimile machine.
b. Therefore, the transmission by the Hong Kong DOJ of the request
for respondent's provisional arrest and the accompanying
documents, namely, a copy of the warrant of arrest against
respondent, a summary of the facts of the case against him,
particulars of his birth and address, a statement of the intention to
request his provisional arrest and the reason therefor, by fax
machine, more than serves this purpose of expediency.
181. Respondent also argues that the admission by the RTC of the request for
provisional arrest and its supporting documents despite lack of
authentication is a violation of respondent’s right to due process. This
argument must fail because as held in Secretary of Justice v. Hon. Lantion,
et al., possible extradite is bereft of the right to notice and hearing during
the evaluation stage of extradition process.
182. Respondent also contends that the request for his provisional arrest was
rendered defective by the fact that the person who made the request was not
a foreign diplomat as provided for in Section 4(2)20 of PD 1069.
a. This has no merit for the said provision refers to the requirements
for a request for extradition and not for a request for provisional
arrest.
b. There is sufficient compliance if the request for provisional arrest
is made by an official who is authorized by the government of the
requesting state to make such request and the authorization is
communicated to the requested state.
183. Lastly, there was sufficient factual and legal basis for the determination of
probable cause as a requisite for the issuance of the Order of Arrest.
a. The request for the respondent's provisional arrest was
accompanied by facsimile copies of the outstanding warrant of
arrest issued by the Hong Kong government, a summary of the
facts of the case against respondent, particulars of his birth and
address, an intention to request his provisional arrest and the
reason therefor. The said documents were appended to the
application for respondent's provisional arrest led in the RTC and
formed the basis of the judge's finding of probable cause for the
issuance of the warrant of arrest against respondent.
20 SEC. 4. Request; By Whom Made, Requirements. — x x x (2) The request shall be made by the
Foreign Diplomat of the requesting state or government, addressed to the Secretary of Foreign Affairs.
 011 GOV’T. OF USA v. HON. PURGANAN (Saldua)
Sept, 24, 2002 | Panganiban, J. | Extradition is a proceeding sui generis
PETITIONER: Gov’t. of USA, represented by PH Dept’t. of Justice
RESPONDENTS: Hon. Purganan & Mark Jimenez aka. Mario Batacan Crespo
SUMMARY: Mark Jimenez aka. Mario Batacan Crespo is the subject of a Petition
for Extradition applied for by the US Gov’t. US Gov’t. filed this Petition for
Certiorari assailing the procedure adopted by RTC of hearing first a potential
extraditee, Mark Jimenez, before issuing a warrant for his arrest under Sec. 6 of PD
No. 1069 (PH Extradition Law). US Gov’t. contended that the procedure gives
Jimenez notice to escape and to avoid extradition. It also assailed the RTC’s
granting of Jimenez's prayer for bail, which allows him to go on provisional liberty
while extradition proceedings are pending. Issues are WON Jimenez, as an
extraditee, is entitled to notice and hearing before a warrant for his arrest can be
issued, and WON he is entitled to bail and provisional liberty while the extradition
proceedings are pending. SC held NO on both issues. SC held that the present
extradition case validates the premise that persons sought to be extradited have a
propensity to flee. Prior acts of Jimenz clearly speak of his aversion to the
processes in the requesting state, as well as his predisposition to avoid them at all
costs.
Thus, first, it was grave abuse of discretion on the part of the RTC judge Purganan
to set the hearing for the issuance of the warrant of arrest when it was already
evident from the Petition for Extradition itself and its supporting documents that a
prima facie finding did exist and he may issue a warrant for the immediate arrest of
the accused. Second, there is no requirement to notify and to hear Jimenez
(accused) before the issuance of a warrant of arrest under the Constitution which
requires only an examination under oath or affirmation of complainants and the
witnesses they may produce. Third, since Jimenez was allowed by the RTC to be
heard and to present evidence at this early stage, it could convert the determination
of a prima facie case into a full-blown trial, which is contrary to the summary
nature of the proceedings and to the ultimate purpose of extradition proceedings i.e.
to determine whether the extradition request complies with the Extradition Treaty,
and whether the person sought is extraditable.
SC also held that Jimenez’s immediate detention prior to his being heard does not
violate the due process clause; that the right to bail applies only in ordinary
criminal proceedings; but that in extradition proceedings, after a potential
extraditee has been arrested, bail may be applied for and granted as an exception.
DOCTRINE: Extradition is different from an ordinary criminal proceeding.
Extradition is basically an executive responsibility arising from the presidential
power to conduct foreign relations. In its barest concept, it partakes of the nature of
police assistance amongst states w/c is not normally a judicial prerogative.
FACTS:
1. Pursuant to the existing RP-US Extradition Treaty, the US Gov’t.,
through diplomatic channels, sent to the PH Gov’t. a Note Verbale
(supplemented by 2 other Notes and accompanied by duly-
authenticated docs.) requesting the extradition of Mark B. Jimenez,
aka. Mario Batacan Crespo.
2. Upon receipt of the Notes and docs., the Sec. of Foreign Affairs
(SFA) transmitted them to the Sec. of Justice (SOJ) for appropriate
action pursuant to Sec. 5 of PD 1069 or the PH Extradition Law.
3. When Jimenez learned about the request for his extradition, he
sought and was granted a TRO by Manila RTC. The TRO prohibited
the DOJ from filing the petition for extradition w/ the RTC.
4. But its validity was assailed by the SOJ. Eventually, in a resolution
issued on 17 Oct. 2000 w/c has become final & executory, the Court
held that that Jimenez did not have the right to notice and hearing
during the evaluation stage of the extradition process. This
Resolution enabled the US Gov’t. represented by the PH DOJ to file
w/ the RTC, the Petition for Extradition.
5. Said petition alleged that Jimenez was the subject of an arrest
warrant issued by the US District Court for the Souther District of
Florida in 1999. This is in connection with the following charges in
Indictment:
a. Conspiracy to defraud the United States and to commit
certain offenses in violation of Title 18 US Code Section
371.
b. Tax evasion, in violation of Title 26 US Code Section
7201.
c. Wire fraud, in violation of Title 18 US Code Sections 1343
and 2.
d. False statements, in violation of Title 18 US Code Sections
1001 and 2.
e. Illegal campaign contributions, in violation of Title 2 US
Code Sections 441b, 441f and 437g(d) and Title 18 US
Code Section 2.
6. The Petition for Extradition prayed for the issuance of an order for
Jimenez’s “immediate arrest”pursuant to Sec. 6 of PD 1069 in order
to prevent his flight.
 1. Extradition • By facilitating the arrest and the custodial
7. However, before RTC could act on said petition for extradition, is a major transfer of a fugitive from one state to the other.
Jimenez filed an ex-parte motion praying that the US Gov’t.’s instrument for the • A majority of nations in the world community
application for an arrest warrant be set for hearing. suppression of have come to look upon extradition as the major
crime effective instrument of international co-operation in
8. 1st ASSAILED ORDER: When RTC granted Jimenez’s motion and the suppression of crime.
set the case for hearing. In that hearing, US Gov’t. manifested its • It is the only regular system that has been
reservations on the RTC’s procedure of allowing the accused in an devised to return fugitives to the jurisdiction of a court
extradition case to be heard prior to the issuance of a warrant of competent to try them in accordance with municipal
arrest. and international law.
• In this era of globalization, easier and faster
9. 2nd ASSAILED ORDER: RTC also fixed bail for Jimenez’s international travel, and an expanding ring of
temporary liberty at PHP 1M in cash (after issuing his warrant of international crimes and criminals, we cannot afford
arrest). to be an isolationist state. We need to cooperate with
ISSUE/S: other states in order to improve our chances of
1. WON Jimenez, as an extraditee, is entitled to notice and hearing suppressing crime in our own country.
before a warrant for his arrest can be issued = NO 2. The • Extradition treaty presupposes that both
Requesting State parties thereto have examined, and that both accept
2. WON Jimenez, as an extradite, is entitled to bail and provisional will accord due and trust, each other's legal system and judicial
liberty while the extradition proceedings are pending = NO process to the process.
HELD: accused. • Our duly authorized representative's signature
WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is on an extradition treaty signifies our confidence in the
hereby declared NULL and VOID, while the challenged Order dated July 3, 2001 is SET capacity and the willingness of the other state to
ASIDE insofar as it granted bail to Respondent Mark Jimenez. The bail bond posted by private
respondent is CANCELLED. The Regional Trial Court of Manila is directed to conduct the
protect the basic rights of the person sought to be
extradition proceedings before it, with all deliberate speed pursuant to the spirit and the letter extradited.
of our Extradition Treaty with the United States as well as our Extradition Law. No costs. SO • That signature signifies our full faith that the
ORDERED. accused will be given, upon extradition to the
RATIO: requesting state, all relevant and basic rights in the
1. Since PD 1609 (PH Extradition Law) is intended as a guide for the criminal proceedings that will take place therein.
implementation of extradition treaties to w/c PH is a signatory, SC • Otherwise, the treaty would not have been
held that it is important to understand certain postulates of signed, or would have been directly attacked for its
extradition. unconstitutionality.
3. The • Extraditions Procedings are sui generis. They
5 POSTULATES OF EXTRADITION Proceedings are Sui are not criminal in nature.
Generis • It is not a criminal proceeding which will call
into operation all the rights of an accused as
guaranteed by the Bill of Rights.
• Process of extradition does not involve the
determination of the guilt or innocence of an accused.
His guilt or innocence will be adjudged in the court of
the state where he will be extradited.
 • Ultimate purpose of extradition
proceedings: to determine whether the extradition
request complies with the Extradition Treaty, and
whether the person sought is extraditable.
4. Compliance • Our Exec. Branch of gov’t. voluntarily entered
shall be in Good into the Extradition Treaty, and our leg. Branch
Faith ratified it. Hence, the Treaty carries the presumption
that its implementation will serve the national interest.
• Fulfilling our obligations under the
Extradition Treaty promotes comity with the
requesting state.
• Pacta Sunt Servanda: to comply in good faith
with our obligations under the Treaty.
• It requires that we deliver the accused to the
requesting country if the conditions precedent to
extradition, as set forth in the Treaty, are satisfied.
5. There is an • Prima Facie presumption: persons to be
underlying Risk of extradited are presumed to be flight risks.
Flight • Indeed, extradition hearings would not even
begin, if only the accused was willing to submit to
trial in the requesting country.
2. 1ST ISSUE: Statutory & Constitutional bases on why Jimenez, as an
extraditee is not entitled to notice & hearing before a warrant of
arrest can be issued –
Sec. 6, PD 1069 (PH Extradition Law)
A. It uses the word “immediate” to qualify the arrest of the accused.
• This qualification would be rendered nugatory by setting for hearing
the issuance of the arrest warrant because hearing entails sending
notices to the opposing parties, receiving facts and arguments from
them, and giving them time to prepare and present such facts and
arguments.
• Thus, arrests subsequent to a hearing can no longer be considered
“immediate”.
B. It uses the word “if it appears” to convey that accuracy is not as
imp’t. as speed as such an early stage.
• Trial Court is not expected to make an exhaustive determination to
ferret out the true and actual situation, immediately upon the filing of
the petition.
• Court is only expected merely to get a good first impression — a
prima facie finding — sufficient to make a speedy initial
determination as regards the arrest and detention of the accused.
C. In this case, it is already evident from the Petition for Extradition itself
and the various records/docs. attached that Judge Purganan can make an
initial determination of WON the accused was someone who should be
immediately arrested.
• In fact, he actually concluded from these supporting docs. that
“probable cause”did exist for hearing the extradition petition.
• Hence after having already determined that a prima facie did
exist, Judge Purganan gravely abused his discretion when he set
the matter for hearing upon the motion of Jimenez.
Sec. 2, Art. II, 1987 Constitution
• It does not even require a notice or hearing before the issuance of a
warrant of arrest.
• It only requires that to determine probable cause for the issuance of
an arrest warrant, there be an examination – under oath or
affirmation – of complainant and the witnesses he may produce.
• There is no requirement to notify and hear the accused before the
issuance of arrest warrant.
3. Proper Procedure upon receipt of a Petition for Extradition that
will “best serve the ends of justice” in extradition cases:
1. The judge must study the petition and make, as soon as possible, a
prima facie finding whether:
A. They are sufficient in form & substance.
B. They show compliance with the Extradition Treaty and Law.
C. The person sought is extraditable.
2. At his discretion, judge may require the submission of further
documentation or may personally examine the affiants and witnesses of
the petitioner.
•Dismissal of Petition for Extradition – If, in spite of this study
and examination, no prima facie finding is possible, the petition
may be dismissed at the discretion of the judge.
3. If the presence of a prima facie case is determined – judge must
immediately issue a warrant for the arrest of the extraditee, who is at the
same time summoned to answer the petition and to appear at scheduled
summary hearings.
• Prior to the issuance of the warrant – the judge must not
 inform or notify the potential extraditee of the pendency of the
petition, lest the latter be given the opportunity to escape and
frustrate the proceedings.
4. 2ND ISSUE:
A. Extradition is Different from Ordinary Criminal Proceedings
• Constitutional provision on bail (sec. 13, art. III), and sec. 4,
Rule 114 of Rules of Court, applies only when a person has
been arrested and detained for violation of Philippine
criminal laws.
• It does not apply to extradition proceedings, because
extradition courts do not render judgments of conviction or
acquittal.
• That the offenses for which Jimenez is sought to be
extradited are bailable in the United States is not an
argument to grant him one in the present case.
• To stress, extradition proceedings are separate and distinct
from the trial for the offenses for which he is charged. He
should apply for bail before the courts trying the criminal
cases against him, not before the extradition court.
EXTRADITION vs. CRIM. PROCEEDING
1. Summary in nature 1. Involves a full-blown trial
2. Rules of evidence allow 2. In terms of quantum of evidence
admission of evidence under to be satisfied, it requires proof
less stringent standards beyond reasonable doubt.
3. Our courts may adjudge an 3. Judgement becomes executory
individual extraditable but the upon being rendered final.
President ahs the final discretion
to extradite him
B. No violation of Due Process
• Jimenez’s detention prior to the conclusion of the extradition
proceedings does not amount to a violation of his right to
due process.
• Essence of due process is the opportunity to be heard, but
this doctrine does not always require a prior opportunity to
be heard.
• Where the circumstances — such as those present in an
extradition case — call for it, a subsequent opportunity to be
heard is enough.
• In this case, Jimenez will be given full opportunity to be
heard subsequently, when the extradition court hears the
Petition for Extradition. Hence, there is no violation of his
right to due process and fundamental fairness.
• It is also worth noting that before the US government
requested the extradition of respondent, proceedings had
already been conducted in that country. But because he left
the jurisdiction of the requesting state before those
proceedings could be completed, it was hindered from
continuing with the due processes prescribed under its laws.
His invocation of due process now has thus become hollow.
He already had that opportunity in the requesting state; yet,
instead of taking it, he ran away.
C. Exceptions to the “No Bail” Rule (derived essentially from gen.
principles of justice & fairness)
• GENERAL RULE – Bail is not a matter of right in
extradition cases.
• EXCEPTION – Bail may be applied for & granted as an
exception, only upon a clear and convincing showing that:
1. Once granted bail, applicant will not be a light rish
or a danger to the community.
2. That there exist a special, humanitarian and
compelling circumstances including, as a matter or
reciprocity, those citd by the highest court in the
requesting state when it grants provisional liberty
in extradition cases therein.
5. Extradition is basically an executive responsibility arising from
the presidential power to conduct foreign relations. In its barest
concept, it partakes of the nature of police assistance amongst
states w/c is not normally a judicial prerogative.
 012 RODRIGUEZ v. MANILA RTC (Santos)
February 27, 2006 | Quisumbing, J. | Criminal and Civil Jurisdiction
PETITIONER: EDUARDO TOLENTINO RODRIGUEZ (Eduardo) and
IMELDA GENER RODRIGUEZ (Imelda) (Rodriguezes)
RESPONDENTS: MANILA RTC JUDGE, BR. 17, USA GOVERNMENT
(US), represented by the Philippine DOJ, and NBI DIRECTOR
SUMMARY: A petition for extradition was filed by the US gov’t against the
Rodriguezes. After arrest, Rodriguezes applied for bail which was granted for
P1m each. Petitioners posted cash bonds. US filed an MR of the grant of bail
which was denied. The US gov’t filed a petition for certiorari with the SC which
directed the TC to resolve the matter of bail which shall be subject to the ruling
that the SC may have in the similar case in US v. Purganan. To comply with
this, the TC, without prior notice and hearing, cancelled the cash bond of the
Rodriguezes and ordered the issuance of a warrant of arrest. The Rodriguezes
filed an MR which was denied so they filed this petition for certiorari on the
grounds that the judge committed GAD in: (1) cancelling the bail without prior
notice and hearing and (2) not considering certain special circumstances
attendant such as their offer to go on voluntary extradition. The issues in this
case are (1) WON prior notice and hearing is required before bail is cancelled in
an extradition case and (2) What constitutes a special circumstance to be exempt
from the no-bail rule in extradition case? The SC ruled that (1) Imelda is entitled
to notice and hearing before her bail could be cancelled and (2) bail may be
granted to a possible extraditee only upon a clear and convincing showing that:
He will not be a flight risk or a danger to the community, AND there exist
special, humanitarian and compelling circumstances. In this case, the SC
considered the following facts:
a. Imelda has offered to go on voluntary extradition;
b. The Spouses had posted a cash bond of P1m each;
c. Eduardo has offered to go on voluntary extradition
d. Eduardo is presently in the USA undergoing trial;
e. Passport of Imelda is already in the possession of authorities;
f. Imelda never attempted to flee;
g. There is an existing hold-departure order against Imelda;
h. Imelda is in her 60’s, sickly and under medical treatment
DOCTRINE: Bail may be granted to a possible extraditee only upon a clear
and convincing showing that: He will not be a flight risk or a danger to the
community, and there exist special, humanitarian and compelling circumstances.
FACTS:
1. A petition for extradition was filed by the US thru DOJ against the
Rodriguezes.
2. After arrest, Rodriguezes applied for bail which was granted for P1m each.
3. Petitioners posted cash bonds.
4. US filed an MR of the grant of bail which was denied
5. US filed a petition for certiorari with the SC, entitled US v. Ponferrada.
6. SC directed the TC to resolve the matter of bail which shall be subject to
whatever ruling that this Court may have in the similar case in US v.
Purganan.
7. In compliance with the SC’s directive, the TC, without prior notice and
hearing, cancelled the cash bond of the Rodriguezes and ordered the
issuance of a warrant of arrest.
8. The Rodriguezes filed an MR which was denied.
9. Rodriguezes filed the present petition on the grounds that the judge
committed grave abuse of discretion (GAD) amounting to lack or excess of
jurisdiction in:
a. cancelling the bail without prior notice and hearing.
b. not considering certain special circumstances attendant to the
present case, as exceptions to the general rule of no-bail in
extradition cases (i.e. voluntary extradition prior to cancelling their
cash bail.)
10. Rodriguezes’ contentions:
Their bail can’t be cancelled without due process of law.
a. Rule 114, Sec. 21, RoC: surety or bonding company is required to
be notified and allowed to show cause why the bail bond should
not be cancelled
b. if this opportunity is granted to surety and bonding companies, the
more reason that the same should be afforded in extradition cases
c. The SC’s directive in USA v. Ponferrada did not authorize the
RTC to cancel their bail before determining the facts to evaluate if
Rodriguezes were entitled to continuance of their bail, (e.g.
willingness to go on voluntary extradition), which the RTC should
have considered a special circumstance.
Their situation falls within the exception to the general rule of no-bail.
d. Their offer for voluntary extradition is a special circumstance that
should be considered in determining that their temporary liberty
while on bail be allowed to continue.
e. Eduardo is in fact already attending the trial in US.
f. They have not taken flight as fugitives.
g. The State is more than assured they would not flee because their
passports were already confiscated and there is an existing hold-
departure order against them.
h. They are not a danger to the community.
11. RTC, USA and NBI director’s arguments:
a. Prior notice and hearing are NOT required to cancel their bail
b. Issuance of a warrant of arrest ex parte against an extraditee is
NOT a violation of the due process clause.
c. Prior notice and hearing would defeat the purpose of the arrest
warrant since it could give warning that respondents would be
arrested and even encourage them to flee.
d. Rodriguezes had been effectively given prior notice and
 opportunity to be heard, because the TC’s order clearly stated
that the matter of bail shall be subject to the SC ruling in the
similar extradition case of USA v. Purganan.
e. Rodriguezes did not contest the order.
f. The Rodriguezes were notified of the SC’s directives to the TC to
resolve the matter of their bail.
g. Imelda did not show her good faith by her continued refusal to
appear before the court.
h. Reasons of Rodriguezes DO NOT qualify as compelling or special
circumstances.
i. The special circumstance of voluntary surrender of Eduardo
Rodriguez is separate and distinct from Imelda Rodriguez’.
j. Atong Ang has no applicability in the instant case. Ang’s bail was
allowed because the English translation of a testimony needed to
determine probable cause in Angs case would take time. This
special circumstance is not attendant in this case.
ISSUES:
1. WON prior notice and hearing is required before bail is cancelled in an
extradition case – YES. Benefits of continued temporary liberty on bail
should NOT BE REVOKED and their grant of bail SHOULD NOT BE
CANCELLED, without being given notice and without being heard
especially with the presence of the circumstances in Ratio #5.
2. What constitutes a special circumstance to be exempt from the no-bail rule
in extradition case? - Bail may be granted to a possible extraditee only upon
a clear and convincing showing that: He will not be a flight risk or a danger
to the community, AND there exist special, humanitarian and compelling
circumstances
RULING: Instant petition is GRANTED IN PART. The Orders dated May 7, 2003
and May 9, 2003 of Manila RTC, Branch 17 in Case No. 01-190375 are REVERSED
and SET ASIDE, as far as petitioner IMELDA GENER RODRIGUEZ is concerned.
We hereby (1) declare IMELDA GENER RODRIGUEZ entitled to bail, (2) order
her cancelled bail restored, and (3) order the warrant for her arrest revoked.
RATIO:
1. Imelda Rodriguez’ bail should be restored (moot and academic insofar as
petitioner Eduardo Rodriguez is concerned since he’s now in the USA
facing the charges against him.)
2. The ruling in Purganan which says that a prospective extraditee is not
entitled to notice and hearing before the issuance of a warrant of arrest,
because notifying him before his arrest only tips him of his pending arrest is
only for cases pending the issuance of a warrant of arrest, NOT in a
cancellation of a bail that had been issued after determination that the
extraditee is a no-flight risk.
3. The policy is that a prospective extraditee is arrested and detained to avoid
his flight from justice. On the extraditee lies the burden of showing that he
will not flee once bail is granted.
4. If after his arrest and if the TC finds that he is no flight risk, it grants him
bail. The grant of the bail, presupposes that Imelda has already presented
evidence to prove her right to be on bail, that she is no flight risk, and the
trial court had already exercised its sound discretion and had already
determined that under the Constitution and laws in force, Imelda is entitled
to provisional release.
5. Under these premises, and with the TC’s knowledge that in this case, the SC
believes that the benefits of continued temporary liberty on bail should
NOT BE REVOKED and their grant of bail SHOULD NOT BE
CANCELLED, without Imelda being given notice and without her being
heard why her temporary liberty should not be discontinued.
a. Imelda has offered to go on voluntary extradition;
b. The Spouses had posted a cash bond of P1m each;
c. Eduardo has offered to go on voluntary extradition
d. Eduardo is presently in the USA undergoing trial;
e. Passport of Imelda is already in the possession of the authorities;
f. Imelda never attempted to flee;
g. There is an existing hold-departure order against Imelda;
h. Imelda is in her 60’s, sickly and under medical treatment
6. Bail may be granted to a possible extraditee only upon a clear and
convincing showing that:
a. He will not be a flight risk or a danger to the community, and
b. There exist special, humanitarian and compelling circumstances.
7. Immediate cancellation of the bail is contrary to the Purganan ruling, and it
had misread and misapplied our directive therein.
8. Was the order to issue warrant of arrest against petitioners and to cancel the
bail of extraditees a GAD of the trial court? GAD is capricious or whimsical
exercise of judgment that is patent and gross as to amount to an evasion of
positive duty or a virtual refusal to perform a duty enjoined by law.
9. The cancellation of Imelda’s bail, without prior notice and hearing, could be
considered a violation of Imelda’s right to due process tantamount to GAD.
10. Since remanding the case to the TC will only delay the final resolution of
the case as in all probability it would only end up with us again, we will
decide if Imeldas bail was validly cancelled.
11. Purganan: The grounds used by the highest court in the requesting state for
the grant of bail may be considered, under the principle of reciprocity.
12. Considering that she has not been shown to be a flight risk nor a danger to
the community, Imelda is entitled to notice and hearing before her bail
could be cancelled. Based on the record, we find that, absent prior notice
and hearing, the bails cancellation was in violation of her right to due
process.
 013 Gov’t of Hongkong v. Olalia (Sarmiento)
April 19, 2007 | Sandoval-Gutierrez, J. | Specific Topic in Syllabus
PETITIONER: Government of Hongkong Special Administrative region
RESPONDENTS: Hon. Felixberto T. Olalia and Juan Antonio Munoz
SUMMARY: Philippines and Hongkong have an extradition treaty in effect.
Private respondent Munoz was charged before the Hong Kong Court of a crime
in violation of the Bribery laws of Hongkong. Munoz is in the Philippines and
thus, the Hong Kong government requested to the DOJ for the arrest of Munoz.
Hong Kong also filed a petition for the extradition of Munoz. Munoz was
arrested and applied for bail. The bail was granted. Hence, Gov’t of Hong Kong
appealed such grant. The Court held that while the current jurisprudence does
not allow bail for extradition cases because it is not a criminal proceeding, the
current trends on international law warrants a shift towards upholding human
rights. The modern trend in public international law is the primacy placed on the
worth of the individual person and the sanctity of human rights. Slowly, the
recognition that the individual person may properly be a subject of international
law is now taking root. The United Nations General Assembly adopted the
Universal Declaration of Human Rights in which the right to life, liberty and all
the other fundamental rights of every person were proclaimed. While not a
treaty, the principles contained in the said Declaration are now recognized as
customarily binding upon the members of the international community.
Furthermore, our jurisprudence had already allowed bail for deportation
proceedings. The court sees no reason why the same should not apply to
extradition proceedings. Clearly, the right of a prospective extraditee to apply
for bail in this jurisdiction must be viewed in the light of the various treaty
obligations of the Philippines concerning respect for the promotion and
protection of human rights. Under these treaties, the presumption lies in
favor of human liberty. Thus, the Philippines should see to it that the right
to liberty of every individual is not impaired. Obviously, an extradition
proceeding, while ostensibly administrative, bears all earmarks of a criminal
process. A potential extraditee may be subjected to arrest, to a prolonged
restraint of liberty, and forced to transfer to the demanding state following the
proceedings. While there is a treaty between the Philippines and Hong Kong, it
does not necessarily mean that in keeping with its treaty obligations, the
Philippines should diminish a potential extraditee's rights to life, liberty, and due
process.
DOCTRINE: Clearly, the right of a prospective extraditee to apply for bail
in this jurisdiction must be viewed in the light of the various treaty
obligations of the Philippines concerning respect for the promotion and
protection of human rights. Under these treaties, the presumption lies in
favor of human liberty. Thus, the Philippines should see to it that the right
to liberty of every individual is not impaired.
FACTS:
1. Republic of the Philippines and Hong Kong signed an "Agreement for the
Surrender of Accused and Convicted Persons." It took effect on June 20,
1997.
2. On July 1, 1997, Hong Kong reverted back to the People's Republic of
China and became the Hong Kong Special Administrative Region.
3. Private respondent Muñoz was charged before the Hong Kong Court with
(3) counts of the offense of "accepting an advantage as agent," in violation
of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of
Hong Kong. He also faces seven (7) counts of the offense of conspiracy to
defraud, penalized by the common law of Hong Kong.
4. On September 13, 1999, the DOJ received from the Hong Kong Department
of Justice a request for the provisional arrest of private respondent.
a. The DOJ then forwarded the request to the (NBI) which, in turn,
filed with the RTC of Manila, an application for the provisional
arrest of private respondent.
b. RTC, issued an Order of Arrest against private respondent. That
same day, the NBI agents arrested and detained him.
5. Meanwhile, petitioner Hong Kong Special Administrative Region filed with
the RTC of Manila a petition for the extradition of private respondent.
a. For his part, private respondent filed in the same case a
petition for bail which was opposed by petitioner.
6. Judge Bernardo, Jr. issued an Order denying the petition for bail, holding
that there is no Philippine law granting bail in extradition cases and that
private respondent is a high "flight risk."
a. Private respondent filed a motion for reconsideration of the Order
denying his application for bail.
b. This was granted by respondent judge Olalia in an Order allowing
private respondent to post bail.
7. Petitioner Gov’t of Hongkong filed an urgent motion to vacate the above
Order, but it was denied by respondent judge.
8. Hence, the instant petition.
9. Petitioner Gov’t of Hongkong alleged that the trial court committed grave
abuse of discretion amounting to lack or excess of jurisdiction in admitting
private respondent to bail; that there is nothing in the Constitution or
statutory law providing that a potential extraditee has a right to bail, the
 right being limited solely to criminal proceedings.
10. Private respondent Munoz maintained that the right to bail guaranteed under
the Bill of Rights extends to a prospective extraditee; and that extradition is
a harsh process resulting in a prolonged deprivation of one's liberty.
a. Section 13, Article III of the Constitution provides that the right to
bail shall not be impaired, thus: Sec. 13. All persons, except those
charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even when
the privilege of the writ of habeas corpus is suspended. Excessive
bail shall not be required.
ISSUE/s:
33. WoN an extraditee can be grante bail – YES, because of the recent trends
on international law upholding human rights.
RULING: WHEREFORE, we DISMISS the petition. This case is REMANDED to
the trial court to determine whether private respondent is entitled to bail on the basis
of "clear and convincing evidence." If not, the trial court should order the
cancellation of his bail bond and his immediate detention; and thereafter, conduct the
extradition proceedings with dispatch.
RATIO:
184. Jurisprudence on extradition is but in its infancy in this jurisdiction.
Nonetheless, this is not the first time that this Court has an occasion to
resolve the question of whether a prospective extraditee may be granted
bail.
185. In Government of United States of America v. Hon. Guillermo G. Purganan,
Presiding Judge, and Mark B. Jimenez, the court held that the constitutional
provision on bail does not apply to extradition proceedings. It is "available
only in criminal proceedings," thus:
a. As suggested by the use of the word "conviction," the
constitutional provision on bail quoted above, as well as Section 4,
Rule 114 of the Rules of Court, applies only when a person has
been arrested and detained for violation of Philippine criminal
laws. It does not apply to extradition proceedings because
extradition courts do not render judgments of conviction or
acquittal.
b. It follows that the constitutional provision on bail will not apply to
a case like extradition, where the presumption of innocence is not
at issue.
186. The provision in the Constitution stating that the "right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended"
does not detract from the rule that the constitutional right to bail is available
only in criminal proceedings.
a. It must be noted that the suspension of the privilege of the writ of
habeas corpus finds application "only to persons judicially charged
for rebellion or offenses inherent in or directly connected with
invasion" (Sec. 18, Art. VIII, Constitution).
b. Hence, the second sentence in the constitutional provision on bail
merely emphasizes the right to bail in criminal proceedings for the
aforementioned offenses. It cannot be taken to mean that the right
is available even in extradition proceedings that are not criminal in
nature.
187. At first glance, the above ruling applies squarely to private respondent's
case. However, this Court cannot ignore the following trends in
international law:
a. (1) the growing importance of the individual person in public
international law who, in the 20th century, has gradually attained
global recognition;
b. (2) the higher value now being given to human rights in the
international sphere;
c. (3) the corresponding duty of countries to observe these universal
human rights in fulfilling their treaty obligations; and
d. (4) the duty of this Court to balance the rights of the individual
under our fundamental law, on one hand, and the law on
extradition, on the other.
188. The modern trend in public international law is the primacy placed on the
worth of the individual person and the sanctity of human rights. Slowly, the
recognition that the individual person may properly be a subject of
international law is now taking root.
a. The vulnerable doctrine that the subjects of international law are
limited only to states was dramatically eroded towards the second
half of the past century.
b. For one, the Nuremberg and Tokyo trials after World War II
resulted in the unprecedented spectacle of individual defendants
for acts characterized as violations of the laws of war, crimes
against peace, and crimes against humanity.
c. Recently, under the Nuremberg principle, Serbian leaders have
been persecuted for war crimes and crimes against humanity
committed in the former Yugoslavia. These significant events
show that the individual person is now a valid subject of
international law.
189. On a more positive note, also after World War II, both international
 organizations and states gave recognition and importance to human rights.
a. Thus, the United Nations General Assembly adopted the Universal
Declaration of Human Rights in which the right to life, liberty and
all the other fundamental rights of every person were proclaimed.
b. While not a treaty, the principles contained in the said Declaration
are now recognized as customarily binding upon the members
of the international community.
c. Thus, in Mejoff v. Director of Prisons, this Court, in granting bail
to a prospective deportee, held that under the Constitution, the
principles set forth in that Declaration are part of the law of the
land. In 1966, the UN General Assembly also adopted the
International Covenant on Civil and Political Rights which the
Philippines signed and ratified. Fundamental among the rights
enshrined therein are the rights of every person to life, liberty, and
due process.
190. The Philippines, along with the other members of the family of nations,
committed to uphold the fundamental human rights as well as value the
worth and dignity of every person.
a. This commitment is enshrined in Section II, Article II of our
Constitution which provides: "The State values the dignity of
every human person and guarantees full respect for human
rights."
b. The Philippines, therefore, has the responsibility of protecting and
promoting the right of every person to liberty and due process,
ensuring that those detained or arrested can participate in the
proceedings before a court, to enable it to decide without delay on
the legality of the detention and order their release if justified. In
other words, the Philippine authorities are under obligation to
make available to every person under detention such remedies
which safeguard their fundamental right to liberty. These remedies
include the right to be admitted to bail.
c. While this Court in Purganan limited the exercise of the right
to bail to criminal proceedings, however, in light of the various
international treaties giving recognition and protection to
human rights, particularly the right to life and liberty, a
reexamination of this Court's ruling in Purganan is in order.
191. First, we note that the exercise of the State's power to deprive an individual
of his liberty is not necessarily limited to criminal proceedings.
Respondents in administrative proceedings, such as deportation and
quarantine, have likewise been detained.
192. Second, to limit bail to criminal proceedings would be to close our eyes to
our jurisprudential history.
a. Philippine jurisprudence has not limited the exercise of the right to
bail to criminal proceedings only.
b. This Court has admitted to bail persons who are not involved in
criminal proceedings.
c. In fact, bail has been allowed in this jurisdiction to persons in
detention during the pendency of administrative proceedings,
taking into cognizance the obligation of the Philippines under
international conventions to uphold human rights.
193. The 1909 case of US v. Go-Sioco is illustrative. In this case, a Chinese
facing deportation for failure to secure the necessary certificate of
registration was granted bail pending his appeal. After noting that the
prospective deportee had committed no crime, the Court opined that "To
refuse him bail is to treat him as a person who has committed the most
serious crime known to law;" and that while deportation is not a criminal
proceeding, some of the machinery used "is the machinery of criminal law."
a. Thus, the provisions relating to bail was applied to deportation
proceedings.
194. In Mejoff v. Director of Prisons and Chirskoff v. Commission of
Immigration, this Court ruled that foreign nationals against whom no
formal criminal charges have been filed may be released on bail pending the
finality of an order of deportation. As previously stated, the Court in Mejoff
relied upon the Universal declaration of Human Rights in sustaining the
detainee's right to bail.
195. If bail can be granted in deportation cases, we see no justification why
it should not also be allowed in extradition cases. Likewise, considering
that the Universal Declaration of Human Rights applies to deportation
cases, there is no reason why it cannot be invoked in extradition cases.
After all, both are administrative proceedings where the innocence or
guilt of the person detained is not in issue.
196. Clearly, the right of a prospective extraditee to apply for bail in this
jurisdiction must be viewed in the light of the various treaty obligations
of the Philippines concerning respect for the promotion and protection
of human rights. Under these treaties, the presumption lies in favor of
human liberty. Thus, the Philippines should see to it that the right to
liberty of every individual is not impaired.
197. Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine
Extradition Law) defines "extradition" as "the removal of an accused from
the Philippines with the object of placing him at the disposal of foreign
authorities to enable the requesting state or government to hold him in
connection with any criminal investigation directed against him or the
execution of a penalty imposed on him under the penal or criminal law of
the requesting state or government."
 a. Extradition has thus been characterized as the right of a foreign
power, created by treaty, to demand the surrender of one accused
or convicted of a crime within its territorial jurisdiction, and the
correlative duty of the other state to surrender him to the
demanding state.
b. It is not a criminal proceeding. Even if the potential extraditee is a
criminal, an extradition proceeding is not by its nature criminal, for
it is not punishment for a crime, even though such punishment may
follow extradition.
c. It is sui generis, tracing its existence wholly to treaty obligations
between different nations. It is not a trial to determine the guilt or
innocence of the potential extraditee. It is merely administrative in
character.
d. Its object is to prevent the escape of a person accused or convicted
of a crime and to secure his return to the state from which he fled,
for the purpose of trial or punishment.
198. But while extradition is not a criminal proceeding, it is characterized by the
following: (a) it entails a deprivation of liberty on the part of the potential
extraditee and (b) the means employed to attain the purpose of extradition is
also "the machinery of criminal law."
a. This is shown by Section 6 of P.D. No. 1069 (The Philippine
Extradition Law) which mandates the "immediate arrest and
temporary detention of the accused" if such "will best serve the
interest of justice." We further note that Section 20 allows the
requesting state "in case of urgency" to ask for the "provisional
arrest of the accused, pending receipt of the request for
extradition;" and that release from provisional arrest "shall not
prejudice re-arrest and extradition of the accused if a request for
extradition is received subsequently."
199. Obviously, an extradition proceeding, while ostensibly administrative, bears
all earmarks of a criminal process. A potential extraditee may be subjected
to arrest, to a prolonged restraint of liberty, and forced to transfer to the
demanding state following the proceedings. "Temporary detention" may be
a necessary step in the process of extradition, but the length of time of the
detention should be reasonable.
200. Records show that private respondent was arrested on September 23, 1999,
and remained incarcerated until December 20, 2001, when the trial court
ordered his admission to bail. In other words, he had been detained for over
two (2) years without having been convicted of any crime. By any standard,
such an extended period of detention is a serious deprivation of his
fundamental right to liberty. In fact, it was this prolonged deprivation of
liberty which prompted the extradition court to grant him bail.
201. While our extradition law does not provide for the grant of bail to an
extraditee, however, there is no provision prohibiting him or her from filing
a motion for bail, a right to due process under the Constitution.
a. The applicable standard of due process, however, should not be the
same as that in criminal proceedings. In the latter, the standard of
due process is premised on the presumption of innocence of the
accused.
202. The time-honored principle of pacta sunt servanda demands that the
Philippines honor its obligations under the Extradition Treaty it entered into
with the Hong Kong Special Administrative Region. Failure to comply with
these obligations is a setback in our foreign relations and defeats the
purpose of extradition.
a. However, it does not necessarily mean that in keeping with its
treaty obligations, the Philippines should diminish a potential
extraditee's rights to life, liberty, and due process.
b. More so, where these rights are guaranteed, not only by our
Constitution, but also by international conventions, to which the
Philippines is a party. We should not, therefore, deprive an
extraditee of his right to apply for bail, provided that a certain
standard for the grant is satisfactorily met.
203. An extradition proceeding being sui generis, the standard of proof required
in granting or denying bail can neither be the proof beyond reasonable
doubt in criminal cases nor the standard of proof of preponderance of
evidence in civil cases.
a. While administrative in character, the standard of substantial
evidence used in administrative cases cannot likewise apply given
the object of extradition law which is to prevent the prospective
extraditee from fleeing our jurisdiction.
b. The potential extraditee must prove by "clear and convincing
evidence" that he is not a flight risk and will abide with all the
orders and processes of the extradition court.
204. In this case, there is no showing that private respondent presented evidence
to show that he is not a flight risk. Consequently, this case should be
remanded to the trial court to determine whether private respondent may be
granted bail on the basis of "clear and convincing evidence."
 BATCH 5
001 THE EXCHANGE v. MCFADDON (SEE)
February 24, 1812 | Marshall, J. | Military ship are exempted from the jurisdiction of
foreign states
PETITIONER: The Exchange
RESPONDENTS: John Mcfaddon and William Greetham
SUMMARY: The schooner Exchange, owned by John McFaddon and William
Greetham, sailed from Baltimore, Maryland for San Sebastián, Spain.
The Exchange was seized by order of Emperor Napoleon Bonaparte.
The Exchange was then armed and commissioned as a French warship under the
name of Balaou. When the vessel later docked in Philadelphia due to storm
damage, McFaddon and Greetham filed an action in the district court to seize the
vessel, claiming that it had been taken illegally. The district court found that it
did not have jurisdiction over the dispute. On appeal, the circuit court reversed
the decision of the district court, and ordered the district court to proceed to the
merits of the case. The issue in this case wi WoN national ships of war is viewed
as been exempted by the consent of the power of the friendly jurisdiction whose
port the ship enters? -YES. The Supreme Court ruled that they had no
jurisdiction since the ship was a public armed ship under the control and
supervision of France, who at that time was at peace with the US. the ship is
deemed to have entered the US territory under an implied promise that while in
such environment, it would be exempt from US jurisdiction.
DOCTRINE: It is a principle of public law that national ships of war entering
the port of a friendly power open for their reception are to be considered as
exempted by the consent of that power from its jurisdiction.
A sovereign is at times, understood to have waived the exercise of a part of that
complete exclusive territorial jurisdiction which has been stated to be the
attribute of every nation. As in the following: (1) the exemption of the person of
the sovereign from arrest or detention within a foreign territory. (2) immunity
which all civilized nations allow to foreign ministers. (3) where a soveriegn is
understood to cede a portion of his territorial jurisdiction by allowing the troops
of a foreign prince to pass through his dominions.
FACTS: (lifted from case syllabus since the case text didn't contain any facts)
146. John McFaddon & William Greetham (libellants), of the State of Maryland,
filed their libel in the District Court of the United States for the District of
Pennsylvania against the Schooner Exchange, setting forth that they were
her sole owners, when she sailed from Baltimore, bound to St. Sebastians,
in Spain.
147. That while lawfully and peaceably pursuing her voyage, she was violently
and forcibly taken by certain persons, acting under the decrees and orders of
Napoleon, Emperor of the French, out of the custody of the libellants, and
of their captain and agent, and was disposed of by those persons, or some of
them, in violation of the rights of the libellants and of the law of nations in
that behalf.
148. That she had been brought into the port of Philadelphia, and was then in the
jurisdiction of that court, in possession of a certain Dennis M. Begon, her
reputed captain or master. That no sentence or decree of condemnation had
been pronounced against her by any court of competent jurisdiction, but that
the property of the libellants in her remained unchanged and in full force.
They therefore prayed the usual process of the court to attach the vessel, and
that she might be restored to them.
149. Upon this libel the usual process was issued, returnable on 30 August, 1811,
which was executed and returned accordingly, but no person appeared to
claim the vessel in opposition to the libellants. On 6 September, the usual
proclamation was made for all persons to appear and show cause why the
vessel should not be restored to her former owners, but no person appeared.
150. On 13 September, a like proclamation was made, but no appearance was
entered.
151. On 20 September, Mr. Dallas, the Attorney of the United States for the
District of Pennsylvania, appeared and (at the instance of the executive
department of the government of the United States, as it is understood),
filed a suggestion to the following effect:
a. "Protecting that he does not know and does not admit the truth of the allegations
contained in the libel, he suggests and gives the court to understand and be
informed,"
b. "That inasmuch as there exists between the United States of America and Napoleon,
Emperor of France and King of Italy, &c., a state of peace and amity, the
public vessels of his said Imperial and Royal Majesty, conforming to the law of
nations and laws of the said United States, may freely enter the ports and
harbors of the said United States and at pleasure depart therefrom without
seizure, arrest, detention or molestation. That a certain public vessel described
and known as the Balaou, or Vessel No. 5, belonging to his said Imperial and Royal
Majesty and actually employed in his service, under the command of the Sieur
Begon upon a voyage from Europe to the Indies having encountered great stress of
weather upon the high seas, was compelled to enter the port of Philadelphia for
refreshment and repairs about 22 July, 1811. That having entered the said port from
necessity and not voluntarily, having procured the requisite refreshments and
repairs, and having conformed in all things to the law of nations and the laws of the
United States, was about to depart from the said port of Philadelphia and to resume
her voyage in the service of his said Imperial and Royal Majesty when on 24
August, 1811, she was seized, arrested, and detained in pursuant of the process of
attachment issued upon the prayer of the libellants. That the said public vessel had
not at any time, been violently and forcibly taken or captured from the libellants,
their captain and agent on the high seas, as prize of war or otherwise, but that if the
said public vessel, belonging to his said Imperial and Royal Majesty as aforesaid,
ever was a vessel navigating under the flag of the United States and possessed by
the libellants, citizens thereof, as in their libel is alleged (which nevertheless the
said Attorney does not admit), the property of the libellants in the said vessel was
seized and divested, and the same became vested in His Imperial and Royal Majesty
within a port of his empire or of a country occupied by his arms, out of the
jurisdiction of the United States and of any particular state of the United States,
 according to the decrees and laws of France in such case provided. And the said
attorney submitting whether, in consideration of the premises, the court will take
cognizance of the cause, respectfully prays that the court will be pleased to order
and decree that the process of attachment heretofore issued be quashed, that the
libel be dismissed with costs, and that the said public vessel, her tackle, &c.,
belonging to his said Imperial and Royal Majesty be released, &c. And the said
attorney brings here into court the original commission of the said Sieur Begon. . .
."
152. The libellants filed their answer. They aver that the schooner is not a public
vessel, belonging to His Imperial and Royal Majesty, but is the private
property of the libellants. They deny that she was compelled by stress of
weather to enter the port of Philadelphia or that she came otherwise than
voluntarily, and that the property of the libellants in the vessel never was
divested, or vested in His Imperial and Royal Majesty within a port of his
empire or of a country occupied by his arms.
153. The district attorney produced the affidavits of the Sieur Begon and the
French consul verifying the commission of the captain and stating the fact
that the public vessels of the Emperor of France never carry with them any
other document or evidence that they belong to him than his flag, the
commission, and the possession of his officers.
154. In the commission it was stated that the vessel was armed at Bayonne.
155. the district judge dismissed the libel with costs upon the ground that a
public armed vessel of a foreign sovereign in amity with our government is
not subject to the ordinary judicial tribunals of the country so far as regards
the question of title by which such sovereign claims to hold the vessel.
156. The circuit Court reversed the decision. Hence this appeal.
ISSUE/s:
34. WoN National ships of war is viewed as been exempted by the consent of
the power of the friendly jurisdiction whose port the ship enters? YES,
because the ship was a public armed ship under the control and supervision
of France, who at that time was at peace with the US.
RULING: The decision of the Circuit court is REVERSED, and that of the District
court dismissing the libel is affirmed.
RATIO:
205. The jurisdiction of the nation within its own territory is necessarily
exclusive and absolute. It is susceptible of no limitation not imposed by
itself. Any restriction upon it deriving validity from an external source
would imply a diminution of its sovereignty to the extent of the restriction
and an investment of that sovereignty to the same extent in that power
which could impose such restriction.
206. This full and absolute territorial jurisdiction, being alike the attribute of
every sovereign and being incapable of conferring extraterritorial power,
would not seem to contemplate foreign sovereigns nor their sovereign rights
as its objects. One sovereign being in no respect amenable to another, and
being bound by obligations of the highest character not to degrade the
dignity of his nation by placing himself or its sovereign rights within the
jurisdiction of another, can be supposed to enter a foreign territory only
under an express license, or in the confidence that the immunities belonging
to his independent sovereign station, though not expressly stipulated, are
reserved by implication, and will be extended to him.
207. A sovereign is at times, understood to have waived the exercise of a part of
that complete exclusive territorial jurisdiction which has been stated to be
the attribute of every nation. As in the following:
a. The exemption of the person of the sovereign from arrest or detention
within a foreign territory.
i. A foreign sovereign is not understood as intending to subject
himself to a jurisdiction incompatible with his dignity, and the
dignity of his nation, and it is to avoid this subjection that the
license has been obtained. The character to whom it is given and
the object for which it is granted equally require that it should be
construed to impart full security to the person who has obtained it.
This security, however, need not be expressed; it is implied from
the circumstances of the case
b. Immunity which all civilized nations allowed to foreign ministers.
i. The assent of the sovereign to the very important and extensive
exemptions from territorial jurisdiction which are admitted to
attach to foreign ministers is implied from the considerations that
without such exemption, every sovereign would hazard his own
dignity by employing a public minister abroad. His minister would
owe temporary and local allegiance to a foreign prince, and would
be less competent to the objects of his mission. A sovereign
committing the interests of his nation with a foreign power to the
care of a person whom he has selected for that purpose cannot
intend to subject his minister in any degree to that power, and
therefore a consent to receive him implies a consent that he shall
possess those privileges which his principal intended he should
retain -- privileges which are essential to the dignity of his
sovereign and to the duties he is bound to perform.
c. Where a soveriegn is understood to cede a portion of his territorial
jurisdiction by allowing the troops of a foreign prince to pass through
his dominions.
i. This is usually explicitly granted since it is inconvenient and
injurious to the sovereign whose dominion was passed.
208. A different rule is granted to ships of war. If, for reasons of state, the ports
of a nation generally or any particular ports be closed against vessels of war
generally, or the vessels of any particular nation, notice is usually given of
such determination. If there be no prohibition, the ports of a friendly
nation are considered as open to the public ships of all powers with
whom it is at peace, and they are supposed to enter such ports and to
remain in them while allowed to remain, under the protection of the
government of the place.
209. In almost every instance, the treaties between civilized nations contain a
stipulation to this effect in favor of vessels driven in by stress of weather or
other urgent necessity. In such cases, the sovereign is bound by compact to
authorize foreign vessels to enter his ports. The treaty binds him to allow
vessels in distress to find refuge and asylum in his ports, and this is a
license which he is not at liberty to retract. It would be difficult to assign a
reason for withholding from a license thus granted any immunity from local
jurisdiction which would be implied in a special license.
210. If there be no treaty applicable to the case, and the sovereign, from motives
deemed adequate by himself, permits his ports to remain open to the public
ships of foreign friendly powers, the conclusion seems irresistible that they
enter by his assent. And if they enter by his assent necessarily implied, no
just reason is perceived by the Court for distinguishing their case from that
of vessels which enter by express assent.
211. There is a difference between private merchant vessels and citizens and
military ships.
a. Private merchant vessels
i. Subject to the jurisdiction of the nation, in whose port it enters,
with the nation’s implied consent
ii. They do not carry the sovereign status of their nation
iii. When private individuals of one nation spread themselves through
another as business or caprice may direct, mingling
indiscriminately with the inhabitants of that other, or when
merchant vessels enter for the purposes of trade, it would be
obviously inconvenient and dangerous to society, and would
subject the laws to continual infraction and the government to
degradation, if such individuals or merchants did not owe
temporary and local allegiance and were not amenable to the
jurisdiction of the country.
b. Military ships
i. Carries the sovereign status of their nation and is therefore, by
customary internation law, exept from the nation’s, whose port
it enters, jurisdiction
ii. Constitutes a part of the military force of her nation; acts
under the immediate and direct command of the sovereign; is
employed by him in national objects.
212. Given that the ship is now a military ship of France, it is not within the
jurisdiction of the US courts.
213. It is a principle of public law that national ships of war entering the
port of a friendly power open for their reception are to be considered as
exempted by the consent of that power from its jurisdiction.
 002 Victory Transport Inc. v. Comisaria General de Abastecimientos y
Transportes (SIAPNO)
Nov. 13, 1963 | Murphy, J. | State Immunity
PETITIONERS: VICTORY TRANSPORT INCORPORATED, owner of
the S.S. HUDSON
RESPONDENS: COMISARIA GENERAL de ABASTECIMIENTOS y
TRANSPORTES, voyage charterer of the S.S. Hudson
SUMMARY: Victory Transport chartered a ship to Comisaria General
(Spain) to carry surplus wheat purchased by the Spanish Government
under an Agricultural Commodities Agreement w/ the US. There was an
arbitration clause. The ship was damaged while in the ports of Spain w/c
were allegedly unsafe for large vessels. Comisaria refused to arbitrate;
thus Victory brought an action to compel the same to submit to arbitration.
Comisaria invokes state immunity.
Issue is WoN state immunity applies in this case – NO, Immunity cannot
apply in this case. The transaction was a commercial act (jure gestionis) –
not a strictly political or sovereign act. There was even an arbitration
clause. The US Court in this case made reference to the case of National
City Bank of New York v. Republic of China which discussed the Tate
Letter and stated that the US now adheres to the restrictive theory. "Tate
Letter" is representative of the present policy of the State Department,
suggests that the transaction giving rise to petitioner's claim was a
sovereign or public act as distinguished from a private or commercial
transaction. The "Tate Letter" suggested immunity in the former case
(sovereign/public act) and none in the latter (commercial transactions).
The argument is based on the fact that the cargo of wheat aboard the S.S.
Hudson was being shipped pursuant to the Surplus Agricultural
Commodities Agreement between the United States and Spain. We have
no doubt that this is true but very simply put, petitioner's claim does not
arise out of that agreement but out of the charter party between it and
respondent.
The purpose of the restrictive theory is to accommodate the interests of
private individuals doing business w/ foreign governments, while at the
same time permitting the foreign states to do political acts w/o being
subjected to the embarrassment of defending the propriety of its acts in
foreign courts.
DOCTRINE: Immunity is in derogation from the normal exercise of
jurisdiction and should be granted only in clear cases – such as:
(1) internal administrative acts, (2) legislative acts,
(3) armed forces,
(4)
diplomatic activity, and (5) public loans.
FACTS:
5. Respondent Comisaria General de Abastecimientos y Transportes wants to
dismiss the petition on the grounds that (a) respondent is not subject to the
jurisdiction of this court by reason of its sovereign immunity and (b) this court is
without jurisdiction over the controversy.
6. Petitioner Victory Transport Incorporated, as owner of the vessel S.S. Hudson,
voyage chartered her to Comisaria General, a branch of the Ministry of
Commerce of the Spanish government, for a voyage carrying a wheat cargo from
Mobile, Alabama, to two ports in Spain.
7. The vessel sustained damage at the discharging ports and Victory makes claims
exceeding $200,000. The charter party was made in New York and provides for
arbitration of disputes arising under it in New York (arbitration clause).
8. After both its demands for payment and for arbitration were ignored, petitioner
secured an ex parte order from this court permitting service of its petition to
compel arbitration by registered mail.
9. Comisaria General now moves for an order vacating the order authorizing the
service and the service itself on the ground that both are wholly ineffectual to
confer in personam jurisdiction on this court
ISSUE/s:
1. (MAIN) WoN respondent Comisaria General is subject to the jurisdiction of
this court by reason of its sovereign immunity – YES, The transaction was a
commercial act (jure gestionis) – not a strictly political or sovereign act.
2. WoN the New York Court had jurisdiction over the controversy – YES, By
entering into an agreement providing for arbitration in New York the parties
consented to New York's jurisdiction
RULING: All of respondent's motions are denied and petitioner's motion to compel
arbitration is granted.
RATIO:
State immunity does not apply to this case
1. The doctrine of sovereign immunity has long been espoused by American
courts. It has been noted, however, that this exemption from suit is not an
explicit command of the Constitution but rather is based on policy
considerations.
2. National City Bank of New York v. Republic of China: As the responsible
agency for the conduct of foreign affairs, the State Department is the normal
means of suggesting to the courts that a sovereign be granted immunity from
a particular suit. Recently the State Department has pronounced broadly
against recognizing sovereign immunity for the commercial operations
of a foreign government. The State Department Bulletin referred to by the
court is the so-called "Tate Letter." The respondent, assuming arguendo that
the "Tate Letter" is representative of the present policy of the State
Department, suggests that the transaction giving rise to petitioner's claim
was a sovereign or public act as distinguished from a private or
commercial transaction. The "Tate Letter" suggested immunity in the
 former case and none in the latter.
3. The argument is based on the fact that the cargo of wheat aboard the S.S.
Hudson was being shipped pursuant to the Surplus Agricultural
Commodities Agreement between the United States and Spain. We have no
doubt that this is true but very simply put, petitioner's claim does not arise
out of that agreement but out of the charter party between it and
respondent. This, we think, is a commercial operation of the Spanish
government and as such the defense of sovereign immunity is not
available.
4. Respondent asserts that aside from the question of sovereign immunity this
court should decline jurisdiction by reason of the "Act of State Doctrine."
We take this doctrine to mean that the courts of this country will not sit in
judgment on the official acts of foreign government done within its own
territory. We do not think that the acts upon which petitioner bases its claim
(negligence perhaps) can be considered official acts.

New York has jurisdiction

1. The memorandum submitted was based on an interpretation of the Federal
Rules of Civil Procedure and the New York Civil Practice Act as they were
made applicable by § 4 of the United States Arbitration Act, 9 U.S.C. § 4.
Reliance was also placed on this circuit's decision in Farr & Co. v. Cia
Intercontinental De Navegacion, affirming Farr & Co. v. S.S. Punta Alice.
Without rehashing these decisions and the arguments therein, the court held
that think they are controlling.
2. By entering into an agreement providing for arbitration in New York
the parties consented to New York's jurisdiction. Thus service of process
became significant only to the extent that it was required so as to avoid a
violation of due process.
 003 Government of the Democratic Republic of Congdo v Venne
(Soriano)
4 March 2014 | Bersamin, J. | Immoral Conduct
PETITIONER: Government of the Democratic Republic of Congo
RESPONDENTS: Jean Venne
SUMMARY:
Venne, an architect, claimed to have been hired by the Government of Congo for
making preliminary studies and preparing sketches in relation to the national
pavilion which the appellant proposed to build at Expo 67. However, Congo
decided not to proceed with the pavilion. Respondent Venne prepared a bill of
$20,000for services rendered which was not paid. Congo filed a declinatory
exception whereby it claimed that, by reason of it’s status as a sovereign state, it
could not be impleaded in the Quebec Courts. The material before the Courts
consisted of the declaration or claim, the declinatory exception and 2 formal
admissions: 1) that the appellant (Congo) had accredited its charge d’affaires as
its commissioner general to the exhibition and also that 2) the Democratic
Republic of Congo is a sovereign State. The exception was dismissed by the trail
judge and this was upheld also by the CA. The Government of Congo appealed o
this Court. Issue: Whether the appeal should be allowed, therefore, the exception
be granted. Held: Yes, the appeal should be allowed. The request for the
respondent’s services was made not only by the duly accredited diplomatic
representatives of the Congo who were Commissioners General of the
Exhibition but also representative of the Department of the Foreign Affairs. This
makes it plain that in preparing for the construction of its national pavilion, a
department of the Government of a foreign state, together with its duly
accredited diplomatic representatives were engaged in the performance of a
public sovereign act of state on behalf of their country and that the employment
of the respondent was a step taken in the performance of that sovereign act.
Therefore, it is the view of the Court that Congo could not be impleaded in the
courts of Canada even if the doctrine of restrictive sovereign immunity had been
adopted in Canada’s courts.
DOCTRINE: Theory of sovereign immunity recognizes the classical doctrine
that a foreign sovereign cannot, without his consent, be impleaded in the courts
of another state, whereas according to the theory of restrictive sovereign
immunity, which has been accepted by United Staates Stated Department and
consequently by the courts of that country, immunity of the foreign sovereign is
recognized only with regard to sovereign or public acts (jure imperii) but not
with respect to private acts (jure gestionis)
In determining whether the act of a foreign sovereign is public or private, the
burden of proof lies upon the sovereign to show that the act was a public one if it
is to be granted sovereign immunity.
FACTS:
157. Respondent Venne, an architect, claimed to have been hired by the
Government of Congo for the purpose of making preliminary studies and
preparing sketches in relation to national pavilion which the Government of
Congo proposed to build at Expo 67.
158. The respondent prepared a bill of $20,000 for services he rendered which
was subsequently reduced to $12,000 and which was not paid because
Congo decided not to proceed with the pavilion.
159. Congo did not deny any of the allegations of Venne. And the following
admissions were made in behalf of the parties which constitute part of the
records of the Court:
a. That the Government of Congo duly accredited its charge
d’affaires as duly appointed commissioner general to the exhibition
b. Vennets that since 1960 the Government of the Democratic
Republic of Congo has been a sovereign State
c. That during November 1965-March 1966 Mr. Mankwe, Charge
d’affaires and Commsisioner General, on behalf of Congo,
requested the professional services of Venne, who is an architect in
Montreal, to carryout preliminary studies and prepare sketches in
relation to the Pavilion which Congo proposed to build at Expo 67.
160. Justice Leduc in the Superior Court (trial court) and the 3 judges of the CA,
were all of opinion that the contract in question was entered into by Congo
as a private Commercial transaction and that it did not bear the character of
an act of the state or an act done for the public purpose of a foreign state.
161. Hence, this case.
ISSUE: Whether the appeal should be allowed, therefore, the exception be granted
RULING: For all reasons I would allow this appeal, set aside the judgments of
the Court of Appeal and the Superior Court and allow the declinatory
exception. The respondent’s action is accordingly dismissed. The appellant will
have its costs throughout.
RATIO:
214. Theory of sovereign immunity recognizes the classical doctrine that a
foreign sovereign cannot, without his consent, be impleaded in the courts of
another state, whereas according to the theory of restrictive sovereign
immunity, which has been accepted by United Staates Stated Department
and consequently by the courts of that country, immunity of the foreign
 sovereign is recognized only with regard to sovereign or public acts (jure
imperii) but not with respect to private acts (jure gestionis)
215. The record indicates that the judges of the CA simply accepted the trial
court’s finding that the Government of Congo’s act of employing Venne
was one of a purely private act, and the CA did not pause to consider the
material upon which it was based.
216. Considered from the point of view of the architect,it may well be that the
contract was a purely commercial one, but even if the theory of restrictive
sovereign mmunity were applicable, the question now would not be whether
the contractor was engaged in a private act of commerce, but whether or not
the Government of Congo, acting as a visiting sovereign state was engaged
in the performance of a public sovereign act of state.
217. The request for the respondent’s services was made not only by the duly
accredited diplomatic representatives of the Congo who were
Commissioners General of the Exhibition but also representative of the
Department of the Foreign Affairs. This makes it plain that in preparing for
the construction of its national pavilion, a department of the Government of
a foreign state, together with its duly accredited diplomatic representatives
were engaged in the performance of a public sovereign act of state on behalf
of their country and that the employment of the respondent was a step taken
in the performance of that sovereign act.
218. Therefore, it is the view of the Court that Congo could not be impleaded in
the courts of Canada even if the doctrine of restrictive sovereign immunity
had been adopted in Canada’s courts
219. In determining whether the act of a foreign sovereign is public or private,
the burden of proof lies upon the sovereign to show that the act was a public
one if it is to be granted sovereign immunity
220. In the case of Allan Construction v Venezuela, the court held that the
contract for construction of a pavilion at Expo 67 was a purely private and
commercial contract, the Government of Venezuela there was subject to the
jurisdiction of the Quebec courts. In this case there was ample evidence that
Venezuela intended to incorporate in its pavilion a restaurant and to sell
products of Venezuela.
221. In the present case, the Court held that there is no evidence of commercial
venture, and therefore there shall be no basis upon which the appellant
(Congo) should be required to assume the negative burden of proving that
there were no commercial undertakings
222. The court based its decision on the premise that Congo’s employment of the
respondent Vnne was an act done in the performance of a sovereign act of
the state.
223. The Court also stated that the cases concerning sovereign immunity decided
in the curts of US are of little or no authority in Canada.
224. The Court again emphasized it’s position that the contract in the present
case sought to be enforces to which Congo’s diplomatic representatives
were parties, was a contract made by a foreign sovereign in the performance
of a public act of state and that whatever view be taken of the doctrine of
sovereign immunity, it was a matter in respect of which the Republic of
Congo cannot be impeaded in Canada’s courts.
225. It was argued by the respondent for the first time in this court that judicial
notice should be taken of a document entitles “Universal and International
Exhibition of 1967 Montreal—General Rules and Regulations. The Court
held, however, that there is no evidence that the Rules and Regulations now
tendered are the ones refrred to in the statute and in any event the reference
there has to do with the by-lawys of the Canadian World-Exhibition
Corporation and can have no bearing on the matter here at issue.
Dissenting (Hall and Laskin, JJ.):
Resort to applicable rules of procedure for the purpose of asserting immunity and
contesting jurisdiction cannot be converted into a submission to the Court’s
authorityto deal with the merits. To be effective, waiver must be made in the face of
the Court and at the time Court is asked to exercise its jurisdiction.
To allow the declinatory exception would thus be to reaffirm the doctrine of absolute
immunity. That doctrine is spent. It would be wrong to revive it on any suggested
presumption that when a sovereign state acts through an accredited displomatic
representative any ensuing transaction with a private purpose is for a so-called public
purpose. Since jurisdiction cannot be effectively repudiated ab initio on the basisof
unqualified immunity, the action should proceed. Even if ge immunity claimed is to
be tested on a restrictive basis, there is not enough in the record before this court
which would be a ground to grant immunity. Claim of Congo cannot be allowed.
 Il Congreso del Partido- Cuban Sugar Trade (STA.MARIA)
1981 | Not mentioned | State Immunity
(DISCLAIMER: Couldn’t find the original case, based this only
from an article on state immunity in English courts and digests I
found)
PETITIONERS: Not mentioned
RESPONDENT: Not mentioned
SUMMARY: Cubazucar, a Cuban state-owned enterprise with independent
legal personality, contracted to supply sugar to a Chilean enterprise, Iansa.
Delivery of the sugar was to take place in regular instalments. In August 1973,
two ships, the Playa Larga and the Marble Islands, were dispatched with one
instalment of sugar. The Playa Larga was owned by the Cuban government but
chartered to Mambisa, another Cuban state-owned enterprise possessing
independent legal personality, which operated all Cuban merchant shipping.
Mambisa then sub- chartered the vessel to Cubazucar for the voyage to Chile.
The Marble Islands, however, was owned by a Liechtensteinian company which
had chartered her on a demise charter to Mambisa which again sub- chartered
her to Cubazucar for the voyage.
In September 1973, while the Playa Larga was discharging her cargo in
Valparaiso, the Allende government, with whom the Cubans had been on
friendly terms, was overthrown in a coup d'etat led by General Pinochet. The
Cubans found the new government to be politically repugnant and therefore
severed diplomatic relations with Chile. Laws were also passed by the Cuban
government forbidding any commercial dealings with Chile. The Playa Larga
which had not completed discharging her cargo was ordered by the Cuban
government to return to Cuba, which she did carrying the remainder of her
undischarged cargo. The Marble Islands, which was still at sea when these
events occurred, sailed for Vietnam where her cargo of sugar was unloaded and
a gift of it made to the Vietnamese people. While the Marble Islands was sailing
for Vietnam, her ownership was transferred from the Liechtensteinian company
to the government of Cuba.
FACTS:
Iansa commenced arbitration proceedings in London, during the course of which
it was discovered that Mambisa, acting on behalf of the Republic of Cuba, had
taken delivery of a new ship, I Congreso, from a British yard. Iansa therefore
issued a writ in rem against I Congreso claiming that the Republic of Cuba, as
beneficial owner of the ship, was liable in personam for breach of contract and
conversion of the sugar. Although the dispute was transferred from the Playa
Larga and the Marble Islands to I Congreso and subsequently to guaranteed
funds, there were still in effect two separate actions against these ships.
The issue is WON a plea of state immunity can be raised as to
deny jurisdiction of courts of other states as to:
As to Playa Larga- No. Generally, the basis on which one state is
considered immune from territorial jurisdiction of courts of another
state is “par in parem” which means that the sovereign or
governmental acts of one state are not matters on which the courts
of other states will adjudicate. However, exception to this is the
restrictive theory, which arises from the willingness of states to
enter into commercial or other private law transactions with
individuals. It was shown that Playa Larga was engaged in trade
with the consent, if not with the active participation of the Republic
of Cuba. Thus, they were doing business with a foreign
government
As to Marble islands – Yes. The acts of the Republic of Cuba were and
remained in their nature purely governmental. There was no purely commercial
obligation involved and the vessel never entered the trading area (remained at
sea) and never entered into commercial relations. Thus the general rule applies
which states that sovereign or governmental acts of one state are not matters on
which the courts of other states will adjudicate.
DOCTRINE: Whether state immunity should be granted or not,
the court must consider the whole context in which the claim
against the state is made, with a view to deciding whether the
relevant acts on which the claim is based should, in that context, be
considered as fairly within an area of activity: (1) trading or
commercial or otherwise of a private law character in which the
state has chosen to engage; or (2) whether the relevant acts should
be considered as having been done outside that area and within the
sphere of governmental or sovereign activity.
1. Cubazucar, a Cuban state-owned enterprise with independent
legal personality, contracted to supply sugar to a Chilean
enterprise, Iansa. Delivery of the sugar was to take place in
regular instalments.
2. In August 1973, two ships, the Playa Larga and the Marble
Islands, were dispatched with one instalment of sugar.
3. The Playa Larga was owned by the Cuban government but
chartered to Mambisa, another Cuban state-owned enterprise
 possessing independent legal personality, which operated all
Cuban merchant shipping.
4. Mambisa then sub- chartered the vessel to Cubazucar for the
voyage to Chile. The Marble Islands, however, was owned by
a Liechtensteinian company which had chartered her on a
demise charter to Mambisa which again sub- chartered her to
Cubazucar for the voyage.
5. In September 1973, while the Playa Larga was discharging her
cargo in Valparaiso, the Allende government, with whom the
Cubans had been on friendly terms, was overthrown in a coup
d'etat led by General Pinochet.
6. The take over of President Pinochet was strongly disapproved
by Cuba as they found the new government to be politically
repugnant, thus diplomatic relations between Chile and Cuba
were terminated.Laws were also passed by the Cuban
government forbidding any commercial dealings with Chile.
7. The Playa Larga which had not completed discharg- ing her
cargo was ordered by the Cuban government to return to Cuba,
which she did carrying the remainder of her undischarged
cargo.
8. The Marble Islands, which was still at sea when these events
occurred, sailed for Vietnam where her cargo of sugar was
unloaded and a gift of it made to the Vietnamese people.
Whilst the Marble Islands was sailing for Vietnam, her
ownership was transferred from the Liechtensteinian com-pany
to the government of Cuba.
9. Iansa commenced arbitration proceedings in London, during
the course of which it was discovered that Mambisa, acting on
behalf of the Republic of Cuba, had taken delivery of a new
ship, I Congreso, from a British yard.
10. Iansa therefore issued a writ in rem against I Congreso
claiming that the Republic of Cuba, as beneficial owner of the
ship, was liable in personam for breach of contract and
conversion of the sugar.
11. Although the dispute was transferred from the Playa Larga and
the Marble Islands to I Congreso and subsequently to
guaranteed funds, there were still in effect two separate actions
against these ships.
ISSUE:
1. WON a plea of state immunity can be raised as to deny
jurisdiction of courts of other states as to:
• Playa Larga- No. Generally, the basis on which one
state is considered immune from territorial jurisdiction
of courts of another state is “par in parem” which
means that the sovereign or governmental acts of one
state are not matters on which the courts of other states
will adjudicate. However, exception to this is the
restrictive theory, which arises from the willingness
of states to enter into commercial or other private
law transactions with individuals. Since Playa
Larga was engaged in trade with the consent, if not
with the active participation of the Republic of
Cuba. Thus, they were doing business with a foreign
government
• Marble islands – Yes. The acts of the Republic of
Cuba were and remained in their nature purely
governmental. There was no purely commercial
obligation involved and the vessel never entered the
trading area (remained at sea) and never entered into
commercial relations. Thus the general rule applies
which states that sovereign or governmental acts of
one state are not matters on which the courts of
other states will adjudicate.
RULING: Not mentioned.
RATIO:
1. Generally, the basis on which one state is considered
immune from territorial jurisdiction of courts of another
state is “par in parem” which means that the sovereign or
governmental acts of one state are not matters on which the
courts of other states will adjudicate.
2. However, exception to this is the restrictive theory, which
arises from the willingness of states to enter into
commercial or other private law transactions with
individuals.
 3. It appears to have 2 main foundations: (1) it is necessary in the 5. All the documents such as the bills of lading were carried out
interest of justice to individuals having such transactions with (legally or illegally) as trading operations governed by contract
states to allow them to bring such transactions before the and by private law.
courts; and (2) to require a state to answer a claim based on 6. The Republic of Cuba never entered into these operations.
such transactions does not involve a challenge to or inquiry
into any act of sovereignty or governmental act of that state. As to Marble Islands
4. The restrictive theory does not and could not deny capability of 1. The acts of the Republic of Cuba were and remained in their
a state to resort to sovereign or governmental action. It merely nature purely governmental.
asserts that acts done within the trading or commercial activity 2. There was no purely commercial obligation involved and the
are not immune vessel never entered the trading area (remained at sea) and
5. Thus, the court first needs to characterize the activity into never entered into commercial relations.
which the defendant state has entered
6. TEST: Whether state immunity should be granted or not,
the court must consider the whole context in which the
claim against the state is made, with a view to deciding
whether the relevant acts on which the claim is based
should, in that context, be considered as fairly within an
area of activity: (1) trading or commercial or otherwise of a
private law character in which the state has chosen to
engage; or (2) whether the relevant acts should be
considered as having been done outside that area and
within the sphere of governmental or sovereign activity.

As to Playa Larga
1. As it appears from the case, it was shown that Playa Larga was
engaged in trade with the consent, if not with the active
participation of the Republic of Cuba. Thus, they were doing
business with a foreign government.
2. However, it is the opinion of this judge that the decision not to
complete the unloading or the discharging was NOT a political
decision taken by the government of Cuba for political and
non-commercial reasons.
3. Everything done by the Republic of Cuba in relation to Playa
Larga could have been done, and so far as evidence gowes, was
done, as owners of the ship.
4. It did not exercise and had no need to exercise, sovereign
powers and invoked no governmental authority.
 005 HOLLAND v. LAMPEN-WOLF (Tan)
Jul. 20, 2000 | House of Lords | What is jure imperii
APPELLANT: Dr. Holland
APPELLEE: Mr. Lampen-Wolf
SUMMARY: Dr. Holland, a U.S. Citizen and a professor at Troy State
University in Alabama, was sent to Menwith Hill, a military base in the U.K.,
where she taught courses in International Relations. Lampen-Wolf, an
American educational services officer also in Menwith Hill, then wrote a
memorandum which criticized Dr. Holland’s performance and it questioned
her professional competence. It also requested that Holland be replaced by
another professor. Dr. Holland then filed a case for damages, arguing that the
memorandum is untrue and is defamatory. Lampen-Wolf argues that he is
protected due to the doctrine of state immunity. The issue is now whether or
not Lampen-Wolf’s action is supposed to be protected by state immunity? Yes
because it was done pursuant to his official function. There is a need to
distinguish between jure imperii (public act of the government) or jure
gestionis (commercial activities of the state). This can only be done by looking
at the context of the case. As argued by Lampen-Wolf, the term “armed
forces” covers also individuals who are not military personnel in a technical
sense (aka ‘di kailangang soldier who actually shoots people on the field).
Being a civilian educational services officer may not be traditionally seen as a
normal act under jure imperii, the circumstances show that it happened in a
U.S. military base and involved only U.S. citizens. More importantly, he is
covered by State immunity because the memorandum was concerned with his
duty – to supervise and monitor the quality of educational services given to
the armed forces. Each state can decide how best to organize its own forces
and the services related thereto. This can involve services which are not
military in the strict sense – e.g. services to sustain morale or promote physical
and mental well-being. In this case, the educational services had a grave
impact on the promotion of the armed forces and in their assignments in
various countries and missions. Therefore, the act was clearly under jure
imperii.
DOCTRINE: State immunity is a rule of customary international law - one
state cannot be sued in courts for acts performed jure imperii (public acts of a
state’s government). This is derived from the sovereign nature of the state’s
exercise of its powers and is recognized by the principle of equality (all states
are equal). It is a subject-matter immunity, and it operates to prevent official
and governmental acts of one state from being called into question in
procedings before the ocurts of another.
Note: This case is from the U.K. and unlike cases we’re used to, there’s no main
opinion here so I just used Lord Millett’s analysis for the “main” opinion because it
was the most complete. Regardless, all the Lords agree with each other and each one
just gave some points to elaborate on, as you will see in the ratio.
FACTS:
162. Dr. Holland is a U.S. Citizen, and a professor of International Relations at
Troy State University (TSU) which is located in Alabama.
163. However, there is a commercial agreement between U.S. and TSU wherein
the the latter will provide courses for a masters degree in international
relations for military personnel at the U.S. bases located in Europe and
Asia.
164. A base included here is the R.A.F. Menwith Hill in North Yorkshire, U.K,
pursuant to the North Atlantic Treaty Organization.
165. The base at Menwith Hill is responsible for education and training programs
for U.S. military Personnel in various European countries.
166. Dr. Holland was then sent to Menwith Hill and she taught courses in
International Relations, and was regarded as a technical representative.
167. On the other hand, Mr. Lampen-Wolf was also a U.S. Citizen, who was a
civilian employee of the U.S. Dept. of Defense and is also an education
services officer at Menwith Hill.
168. Lampen-Wolf was responsible for planning, development, and
implementation of education and training programs in the base.
169. In March 1997, Lampen-Wolf, in his capacity as an education services
officer, wrote a memorandum to the TSU’s European Program Director.
The said memo was entitled “Unacceptable Instructor Performance.”
170. The memo criticized Dr. Holland’s performance and it questioned her
professional competence. It also requested that Holland be replaced by
another professor.
171. Dr. Holland then filed a case for damages, arguing that the memorandum is
untrue and is defamatory.
172. The Master (parang RTC) the CA (yes CA rin tawag sa kanila finally)
dismissed the case.
173. Now in the House of Lords (SC), Dr. Holland invokes the European
Convention on Human Rights and Fundamental Freedoms, which will be
implemented by the Human Rights Act of 1998, which gives her a right of
access to English courts and contends that the damages should be granted.
174. She said that the doctrine of state immunity does not apply here because no
governmental function is impaired here. Also, Holland argues that there will
be a violation of due process because invoking the doctrine will deprive her
of civil and convention rights.
175. Important to note here that the Human Rights Act of 1998 is not yet in
effect so Lord Millett decided to look at the Act of 1978 and common law,
as both of which are discussed below.
ISSUE/s:
35. W/N Lampen-Wolf’s action is supposed to be protected by state immunity?
Yes because it was done pursuant to his official function.
RULING: All the Lords voted to have the petition dismissed.
RATIO:
STATE IMMUNITY IN GENERAL (IMPT)
226. State immunity is a rule of customary international law - one state
cannot be sued in courts for acts performed jure imperii (public acts of a
state’s government).
227. This is derived from the sovereign nature of the state’s exercise of its
powers and is recognized by the principle of equality (all states are equal).
228. It is a subject-matter immunity, and it operates to prevent official and
governmental acts of one state from being called into question in procedings
before the ocurts of another.
229. This is given effect in the U.K. by the State Immunity Act of 1978.
230. Where the immunity applies, it covers an official of the state in respect of
acts performed in his official capacity.
231. Here, it was clear that Lampen-Wolf acted in his capacity as an official of
the U.S. Dept. of Defense, because he was responsible for the education of
the U.S. armed forces in the U.K.
STATE IMMUNITY ACT OF 1978
1. Sec. 1 generally provides that a state is immune from proceedings in the
U.K., however, the same act provides for certain exceptions.
2. Here, Holland tried to use Sec. 3 which says that a State is not immune for
proceedings related to a commercial transaction entered into by a state, or a
contractual obligation.
3. However, Sec. 16(2)21 excludes certain matters from the exception.
4. This is important because the CA held that Dr. Holland’s proceedings is
within Sec. 16(2) because they related to something done “by” the armed
forces of the U.S. – Lord Millett agrees.
5. The proceedings related to the memorandum which was written by
Lampen-Wolf who was acting in his official capacity as an education
services officers.
6. As argued by Lampen-Wolf, the term “armed forces” covers also
individuals who are not military personnel in a technical sense (aka ‘di
kailangang soldier who actually shoots people on the field).
7. Lampen-Wolf was part of the civilian component but he is still covered by
State immunity because the memorandum was concerned with his duty – to
supervise and monitor the quality of educational services given to the
armed forces.
21 "(2) This Part of this Act does not apply to proceedings relating to anything done by or in
relation to the armed forces of a state whilst present in the United Kingdom and, in particular,
has effect subject to the Visiting Forces Act 1952."
STATE IMMUNITY IN COMMON LAW
1. This is actually the main basis for upholding State immunity and protecting
Lampen-Wolf and there is a need to distinguish between jure imperii
(public act of the government) or jure gestionis (commercial activities of
the state). This can only be done by looking at the context of the case.
2. Lord Millett agrees with the CA that it was under jure imperii.
3. The case of Littrell v. U.S.A. also concerned a claim for damages – for
personal injuries from medical treatment received in a U.S. Military
Hospital in the U.K., while the claimant was a serving member of the U.S.
Air Force.
4. Here, the Lords said that 16(2) also applied, so the case was to be decided at
common law. Here, the CA also said that the doctrine of state immunity
applied.
a. Example of an act under jure imperii – flights of bombers; act
under jure gestionis – ordering milk for the base from a local dairy
or careless driving by off-duty airmen on roads.
b. There is no single test by which to distinguish the two types – you
always have to consider the factors involved.
c. Here, it was observed that the acts happened in a U.S. military
hospital, involving only military personnel – therefore, the
standard of medical care which the U.S. should afford its own men
was a matter to be decided within its own sovereign authority.
5. Lord Millett that the circumstances here are very similar to the ones in
Littrell.
6. Dr. Holland tried to argue that
a. She a civilian employee of TSU and not a member of the armed
forces no a government employee of the U.S,
b. That the services were pursuant to the commercial agreement
between the U.S. and TSU,
c. While the students were mainly from the armed forces, some were
just regular family members and other civilians; and
d. That the educational programmes were not directly related to
military education or training, but were almost the same as the
courses he taught in TSU.
7. Lord Millett says that these are valid points, but these facts carry greater
weight:
a. These were provided only at U.S. military bases, and also
concerned only U.S. Citizens.
b. The programs were designed to complement military programmes
and assist the the promotion of the armed forces.
c. Nowadays, education makes them fit for promotion of other
assignments and is a necessary part of the maintenance of a
nation’s armed forces.
SEC. 3 OF THE STATE IMMUNITY ACT OF 1978
 1. Lord Millett says that the exception here does not apply because the
proceedings initiated by Dr. Holland are not pursuant to the commercial
contract, but about Lampen-Wolf’s memorandum.
2. For this the exception to apply, the claim has to arise out of the contractual
stipulations, and not tortious claims which are independent of the
transaction, even if it was done in the course of its performance.
3. Also, it is also clear that the memorandum was not done by Lampen-Wolf
pursuant to the contract between the U.S. and TSU.
STATE IMMUNITY AND THE EUROPEAN CONVENTION
1. Art. 6 of the European convention affords to everyone the right to a fair trial
for the determination of civil rights and obligations.
2. However, this right is not absolute – it only forbids a contracting state from
denying individuals the benefit of adjudication.
3. Art. 6 requires states to maintain fair and public judicial processes and
forbids them to deny access to processes for the determination of their civil
rights.
4. State immunity, again, is a matter of customary international law and is a
necessary part of equality.
5. The U.S. has not waived its immunity – it is not a party to this convention.
Dr. Holland cited several cases to show that the state immunity was struck
down, but those cases did not involve the question of whether the state had
actually jurisdiction to decide the matters or not.
6. Dr. Holland claims that the case should be allowed because of his rights, but
the U.S. has rights too which the Court is bound to respect.
applicable here because as Lampen-Wolf pointed out, the case involves the
immunity of a state, and not only of an individual.
9. Such is an attribute under international law which all other states are bound
to recognize.
LORD COOKE OF THORNDON
1. Also votes to have the action dismissed.
2. He explains that the boundaries of state immunity are not permanent, but
are actually flexible.
3. He says that changing concepts and circumstances makes this concept
develop, and it may extend to other situations not contemplated before.
4. As seen here, a state may reasonably claim to have welfare and educational
responsibilities towards the members of its armed forces which cannot be
interefered into by other states.
LORD CLYDE
1. Also votes to have the petition dismissed.
2. Again, it is an international principle that sovereign states cannot claim
jurisdiction over each other.
3. This relates to ideas such as comity/reciprocity, practicability of
enforcement, and respect for the dignity of other states.
4. Reiterates Lord Millett’s point that the domestic courts in U.K. have no
jurisdiction over the U.S. in this case, and that’s why Dr. Holland cannot
invoke Art. 6 of the European Convention.

LORD HOPE OF CRAIGHEAD’S OPINION LORD HOBHOUSE OF WOODBOROUGH

1. Also votes to have the petition dismissed. 1. Also votes to have the petition dismissed and just says that he “agrees with
2. Same points as Lord Millett but also says that “armed forces” is again not his noble and learned friend Lord Millet.” No explanations.
only only military personnel who handle weapons, equipment, and are
dressed in uniform.
3. Each state can decide how best to organize its own forces and the services
related thereto. This can involve services which are not military in the strict
sense – e.g. services to sustain morale or promote physical and mental well-
being.
4. Here, the circumstances show that Lampen-Wolf’s actions show that the
memorandum was given in accordance with his duties.
5. The Menwith Hill based is an intelligence field site that supports
communications research.
6. Again, Lampen-Wolf was responsible for planning, development, and
implementation of educational programs there, and this included the
programs of TSU.
7. Again, being a civilian educational services officer may not be traditionally
seen as a normal act under jure imperii, the circumstances show that it
happened in a U.S. military base and involved only U.S. citizens.
8. Art. 6 of the European Convention which Dr. Holland tried to invoke is not
 006 TRENDTEX v. CENTRAL BANK OF NIGERIA (TIMBOL)
January 13, 1977 | Lord Denning M.R. | Immunities of International Organizations
PETITIONER: Trendtex Trading Corproation
RESPONDENTS: Central Bank of Nigeria
SUMMARY: The Ministry of Defense of Nigeria entered into a contract with
Pan-African for the shipment of Portland Cement. In order for payment to be
done, the Central Bank of Nigeria opened a letter of credit in favor of Pan-
African. Payment was then coursed through the Central Banks correspondent,
Midland Bank. In order to comply with its contract, Pan-African ordered the
cement from Trendtex, to which letter of credit was subsequently transferred to
it. After shipment of the first four cements, Trendtex was paid by Midland;
however as to the additional two shipments (a total of 6), Trendtex was no
longer paid based on the Central Banks order apparently due to the crisis in the
port. This prompted Trendtex to file an action for collection of damages against
the Central Bank of Nigeria, but the High Court ruled in Central Banks favor
declaring it immune from suit. Hence this appeal, whether or not Central Bank
is immune.
The Court held that the Central Bank of Nigeria is not immune from suit. The
Court took note of the prevailing changes in international law when it comes to
the doctrine of sovereign immunity, and applied the doctrine of incorporation.
This doctrine of incorporation basically states that international law is
automatically adopted by the country except when it conflicts with an Act of
Parliament. In this case, the modern rule as to immunity is the restrictive
immunity. And as such, when a foreign sovereign or government enters into
commercial transactions or in its proprietary function, they cannot claim
sovereign immunity. Moreover, the Central bank of Nigeria in particular is not
an emanation of the state that can claim immunity thus it was bound to the suit
filed against it by Trendtex.
DOCTRINE: A foreign sovereign has no immunity when it enters into a
commercial transaction with a trader here and a dispute arises which is properly
within the territorial jurisdiction of our courts. If a foreign government
incorporates a legal entity which buys commodities on the London market; or if
it has a state department which charters ships on the Baltic Exchange: it thereby
enters into the market places of the world: and international comity requires that
it should abide by the rules of the market.
FACTS:
1. The Ministry of Defense in Nigeria agreed to buy 240,000 tons of Portland
cement from an English company, the Pan-African Export and Import Co.
Ltd.
a. The price was $60/ton,
b. C.i.f. Lagos/Apapa ports
c. Shipment at the rate of 20,000 tons/month, plus or minus 10%.
d. All to be delivered not later than August 15, 1976
2. In pursuance of that contract the Ministry of Defense instructed the Central
Bank of Nigeria to open a letter of credit in favor of Pan-African to the
extent of $14,400,000 to be valid for payment against shipping documents
conformable to the contract of purchase
3. The Central Bank of Nigeria duly issued a letter of credit in favor of Pan-
African. It was issued in London through their correspondent bank, the
Midland Bank. It covered not only the price of $14,400,000 but also
demurrage of $4,100 a day
a. It is important to notice that the Midland Bank were only
correspondents acting as agents for the Central Bank of Nigeria.
The Midland Bank did not confirm the credit so as to make
themselves liable on it. They only advised the seller of its terms
4. The responsibility of the Central Bank of Nigeria:
a. “I write to inform you that no confirmation is required for credits
opened by us direct with our correspondent banks, of which the
Midland Bank, is one. We are irrevocably committed to honor our
engagement sunder this credit. Moreover, our correspondent, has
our authority to pay the beneficiary the full value of this letter of
credit through your bank on presentation of relevant shipping
documents to them in London, provided the documents are in
order. As a government bank and a prime bank, no supplier should
have any cause to doubt our ability to pay our bills promptly. The
question of our correspondents confirming our letters of credit
should, therefore, not arise.”
5. In order to fulfill their contract to supply the cement, Pan-African entered
into a contract with the Trendtex Trading Corporation of Zurich,
Switzerland. By it, Pan-African agreed to buy:
a. 240,000 tons of Portland cement from Trendtex
b. $59.5/ton
c. C.i.f. Lagos/Apapa
6. On the same day, the credit was transferred to Trendtex. It was done by
means of a new irrevocable letter of credit issued by the Central Bank of
Nigeria through its correspondent Midland Bank.
7. Trendtex shipped four consignments of cement under their contract with
Pan-African. For those shipments, Trendtex presented shipping documents
to Midlan and were paid the price.
8. Trendtex made two further shipments, but were not paid the price.
9. According to Midland bank, they could nto pay because of a telex message:
a. “Please inform Trendtex Trading Corporation, beneficiaries of our
account that we have received the following authenticated message
from our principals,, Central Bank of Nigeria, Lagos, reading as
follows: ‘Please stop demurrage payments against specified
documents unless such docments have been certified for payment
by the Central Bank of Nigeria.’ Please request beneficiaries to be
 guided, accordingly.”
10. Trendtex also wanted payment for the price for the other shipments, but the
bank refused to pay:
a. “The Nigerian Federal Military Government has directed that in
view of our port situation, shipping companies must give two
months’ notice to the Nigerian Ports Authority before sailing. In
view of this, you are requested not to pay against documents
presented in respect of letters of credit we have opened unless such
documents are accompanied by certificates confirming that
clearance has been obtained for the ships to sail to Nigeria. Thus,
when documents are presented, no payment should be made until
we confirm to you that the ship has obtained necessary clearance to
sail to Nigeria.”
11. Representatives of Trendtex went to Lagos and made representations to the
Nigerian government. They were told that no payment whatever would be
made on the last two vessels: and demurrage would only be paid on the first
four vessels if certified by the Central Bank of Nigeria for payment.
12. Trendtex issued a writ in the High Court of Justice in London against the
Central Bank of Nigeria. They claimed demurrage on all six vessels. They
claimed the price of the cement shipped on the last two vessels. They
claimed damages for non-acceptance of the balance of 175,340 tons still
outstanding (out of the 240,000 tons ordered). They claimed damages on
account of their obligations to their suppliers, Alsen-Breitenburg.
13. The Central Bank of Nigeria applied to set aside the writ on the ground that
the Central Bank of Nigeria is a department of the Federal Republic of
Nigeria and, therefore, immune from suit.
14. Donaldson J. [1976] 1 W.L.R. 868 set aside the writ. Trendtex appeal to this
court. Trendtex also applied for an order that the bank do retain $14 million
in London to meet the claim. Mocatta J. made that order. It is effective
because the bank have that sum to their credit with the Midland Bank. The
money is being retained here pending the appeal.
ISSUES:
2. WoN the Central Bank of Nigeria can claim immunity – NO, under the Law
Merchant, letters of credit must be honored. The Court deemed international
law to be incorporated into the law of the land automatically, except if it
conflicted with the domestic system.
RULING: In my opinion the plea of sovereign immunity, does not avail the
Central Bank of Nigeria. I would allow the appeal, accordingly
RATIO:
2. The doctrine of sovereign immunity is based on international law. It is
one of the rules of international law that a sovereign state should not be
impleaded in the courts of another sovereign state against its will. Like
all rules of international law, this rule is said to arise out of the
consensus of the civilized nations of the world. All nations agree upon
it. So it is part of the law of nations.
3. The nations are not in the least agreed upon the doctrine of sovereign
immunity. The courts of every country differ in their application of it. Some
grant absolute immunity. Other grant limited immunity, with each defining
the limits differently.
4. There is no consensus whatever. Yet this does not mean that there is no rule
of international law upon the subject. It only means that we differ as to what
that rule is.
5. Each country delimits for itself the bounds of sovereign immunity. Each
creates for itself the exceptions from it. It is, I [Denning] think, for the
courts of this country to define the rule as best they can, seeking guidance
from the decision of the courts of other countries, from the jurists who have
studied the problem, from treaties and conventions and, above all, defining
the rule in terms which are consonant with justice rather than adverse to it.
6. What is the place of international law in our English law?
a. One school of thought holds to the doctrine of incorporation. It
says that the rules of international law are incorporated into
English law automatically and considered to be part of English law
unless they are in conflict with an Act of parliament.
b. The other school of though holds to the doctrine of
transformation. It says that the rules of international law are not
to be considered as part of English law except insofar as they have
been already adopted and made part of our law by the decisions of
the judges, or by Act of Parliament, or long established custom.
7. The difference is vital when you are faced with a change in the rules of
international law. Under the doctrine of incorporation, when the rules of
internationall law change, our English law changes with them. But, under
the doctrine of transformation, the English law does not change. It is bound
by precedent. It is bound down to those rules of international law which
have been accepted and adopted in the past. It cannot develop as
international law develops.
8. As between these two school of thought, I [Denning] now believe that the
doctrine of incorporation is correct. Otherwise, I do not see that our
courts could ever recognize a change in the rules of international law.
9. It is certain that international law does change. I would use of international
law the words which Galileo used of the Earth: “But it does move.”
10. International law does change: and the courts have applied the changes
without the aid of any Act of Parliament. Thus, when the rules of
international law were changed (by the force of public opinion) so as to
condemn slavery, the English courts were justified in applying the modern
rules international law.
11. The bounds of sovereign immunity have changed greatly in the last 30
years. The changes have been recognized in many countries, and the courts
– of our country and of theirs – have given effect to them, without any
legislation for the purpose.
12. Conclusion on this point. Seeing that the rules of international law have
changed – and do change – and that the courts have given effect to the
changes without any Act of Parliament, it follows to my mind
inexorably that the rules of international law, as existing from lime to
time, do form part of our English law.
13. It follows, too, that a decision of this court – as to what was the ruling of
international law 50 or 60 years ago – is not binding on this court today.
International law knows no rule of stare decisis.
14. If this court today is satisfied that the rule of international law on a subject
has changed from what it was 50 or 60 years ago, it can give effect to that
change – and apply the change in our English law – without waiting for the
House of Lords to do it.
15. Many countries have now departed from the rule of absolute immunity. So
many have departed from it that it can no longer be considered a rule of
international law. It has been replaced by a doctrine of restrictive immunity.
This doctrine gives immunity to acts of a governmental nature, described in
Latin as jure imperii, but no immunity to acts of a commercial nature, jure
gestionis.
16. Rahimtoola v. Nizam of Hyderabad, If the dispute brings into question,
for instance, the legislative or international transactions of a foreign
government, or the policy of its executive, the court should grant
immunity if asked to do so, because it does offend the dignity of a
foreign sovereign to have the merits of such a dispute canvassed in the
domestic courts of another country: but, if the dispute concerns, for
instance, the commercial transactions of a foreign government
(whether carried on by its own departments or agencies or by setting
up separate legal entities), and it arises properly within the territorial
jurisdiction of our courts, there is no ground for granting immunity.
17. Thai-Europe Tapioca Servce Ltd v. Government of Pakistan, A foreign
sovereign has no immunity when it enters into a commercial
transaction with a trader here and a dispute arises which is properly
within the territorial jurisdiction of our courts. If a foreign government
incorporates a legal entity which buys commodities on the London
market; or if it has a state department which charters ships on the
Baltic Exchange: it thereby enters into the market places of the world:
and international comity requires that it should abide by the rules of
the market.
18. So I turn to see whether the transaction here was such as to attract
sovereign immunity, or not. It was suggested that the original contracts for
cement were made by the Ministry of Defence of Nigeria: and that the
cement was for the building of barracks for the army. On this account it was
said that the contracts of purchase were acts of a governmental nature, jure
imperii, and not of a commercial nature, jure gestionis. They were like a
contract of purchase of boots for the army.
19. But I do not think this should affect the question of immunity. If a
government department goes into the market places of the world and buys
boots or cement – as a commercial transaction – that government
department should be subject to all the rules of the market place. The seller
is not concerned with the purpose to which the purchaser intends to put the
goods.
20. There is another answer. Trendtex here are not suing on the contracts of
purchase. They are claiming on the letter of credit which is an entirely
separate contract. It was a straightforward commercial transaction. The
letter of credit was issued in London through a London bank in the
ordinary course of commercial dealings. It is completely within the
territorial jurisdiction of our courts. I do not think it is open to the
Government of Nigeria to claim sovereign immunity in respect of it.
21. If we are still bound to apply the doctrine of absolute immunity, there is,
even so, an important question arising upon it. The doctrine grants
immunity to a foreign government or its department of state, or any body
which can be regarded as an “alter ego or organ” of the government. But
how are we to discover whether a body is an “alter ego or organ” of the
government?
22. In some countries the government departments conduct all their
business through their own offices – even ordinary commercial dealings
– without setting up separate corporations or legal entities. In other
countries they set up separate corporations or legal entities which are
under the complete control of the department, but which enter into
commercial transactions, buying and selling goods, owning and
chartering ships, just like any ordinary trading concern.
23. This difference in internal arrangements ought not to affect the availability
of immunity in international law. A foreign department of state ought not to
lose its immunity simply because it conducts some of its activities by means
of a separate legal entity.
24. At the hearing we were taken through the Act of 1958 under which the
Central Bank of Nigeria was established, and of the amendments to it by
later decrees. All the relevant provisions were closely examined: and we
had the benefit of expert evidence on affidavit which was most helpful. The
upshot of it all may be summarized as follows.
a. The Central Bank of Nigeria is a central bank modeled on the
Bank of England.
b. It has governmental functions in that it issues legal tender; it
safeguards the international value of the currency; and it acts
as banker and financial adviser to the government.
c. Its affairs are under a great deal of government control in that
the Federal Executive Council may overrule the board on
monetary and banking policy and on internal administrative
policy.
d. It acts as banker for other banks in Nigeria and abroad, and
maintains accounts with other banks. It acts as banker for the
states within the federation: but has few, if any, private
customers.
25. In these circumstances I have found it difficult to decide whether or not the
Central Bank of Nigeria should be considered in international law a
department of the Federation of Nigeria, even though it is a separate legal
entity. But, on the whole, I do not think it should be.
26. This conclusion would be enough to decide the case, but I find it so difficult
that I prefer to rest my decision on the ground that there is no immunity in
respect of commercial transactions, even for a government department.
 007 SANDERS v. VERIDIANO (CHIQUI)
June 10, 1988 | Cruz, J. | Doctrine of State Immunity
PETITIONER: Dale Sanders and A.S. Moreau, Jr.
RESPONDENTS: Hon. Regino T. Veridiano II, as presiding Judge of Branch I,
Court of First Instance of Zambales, Olongapo City, Anthony M. Rossi and
Ralph L. Wyers
SUMMARY: Rossi and Wyers are both employed as gameroom attendants in
the special services department of the NAVSTA. Their employment had been
converted from permanent full-time to permanent part-time so they instituted
grievance proceedings. The recommendation from the hearing officer was to
reinstate the two to permanent full-time status plus backwages. Sanders, the
special services director of NAVSTA, sent a letter to Moreau, the commanding
officer of the base which includes the same station, disagreeing to the
recommendation. Before the start of the grievance proceedings, Moreau sent a
letter to the Chief of Naval Personnel explaining the change of the employment
status and requesting concurrence therewith. Because of this, Rossi and Wyers
filed a complaint for damages against Sanders and Moreau and made it clear that
they were being sued in their personal capacity. Sanders and Moreau argued that
the case should be dismissed because they performed the duties in their official
capacities and therefore, CFI had no jurisdiction over them under the doctrine of
state immunity. CFI ruled in favor of Rossi and Wyers. W/N Sanders and
Moreau should be liable in their personal capacity – NO, the acts for which the
Sanders and Moreau are being called to account were performed by them in the
discharge of their official duties. Sanders has supervision over NAVSTA’s
personnel while Moreau was the superior of Sanders and directly answerable to
Naval Personnel in matters involving the special services department of
NAVSTA. As they have acted on behalf of the US government, and within the
scope of their authority, it is that government, and not Sanders and Moreau
personally, that is responsible for their acts. There should be no question by now
that such complaint cannot prosper unless the government sought to be held
ultimately liable has given its consent to be sued. The doctrine of state immunity
is applicable not only to our own government but also to foreign states sought to
be subjected to the jurisdiction of our courts. Because it is the US government
that must be answerable to the reliefs prayed for by Rossi and Wyers, the case
must be dismissed for lack of jurisdiction.
DOCTRINE: In the case of foreign states, the rule is derived from the principle
of the sovereign equality of states which wisely admonishes that par in parem
non habet imperium and that a contrary attitude would "unduly vex the peace of
nations." Our adherence to this precept is formally expressed in Article II,
Section 2, of our Constitution, where we reiterate from our previous charters that
the Philippines "adopts the generally accepted principles of international law as
part of the law of the land."
FACTS:
176. Dale Sanders was, at the time the incident in question occurred, the special
services director of the U.S. Naval Station (NAVSTA) in Olongapo City.
A.S Moreau was the commanding officer of the Subic Naval Base, which
includes the said station.
177. Anthony Rossi is an American citizen with permanent residence in the
Philippines and so was Ralph Wyer, who died two years ago. They were
both employed as gameroom attendants in the special services department
of the NAVSTA, the former having been hired in 1971 and the latter in
1969.
178. Rossi and Wyers were advised that their employment had been converted
from permanent full-time to permanent part-time, effective October 18,
1975. Their reaction was to protest this conversion and to institute
grievance proceedings conformably to the pertinent rules and regulations of
the U.S. Department of Defense.
179. The result was a recommendation from the hearing officer who conducted
the proceedings for the reinstatement of Rossi and Wyers to permanent full-
time status plus backwages. The report on the hearing contained the
observation that "Special Services management practices an autocratic form
of supervision."
180. In a letter addressed to Moreau, Sanders disagreed with the hearing officer's
report and asked for the rejection of the abovestated recommendation. The
letter contained the statements that:
a. "Mr. Rossi tends to alienate most co-workers and supervisors;"
b. “Messrs. Rossi and Wyers have proven, according to their
immediate supervisors, to be difficult employees to supervise;" and
c. "even though the grievants were under oath not to discuss the case
with anyone, (they) placed the records in public places where
others not involved in the case could hear."
181. Before the start of the grievance hearings, a letter purportedly coming from
Moreau as the commanding general of the U.S. Naval Station in Subic Bay
was sent to the Chief of Naval Personnel explaining the change of the Rossi
Wyer’s employment status and requesting concurrence therewith. The letter
did not carry his signature but was signed by W.B. Moore, Jr. "by
direction," presumably of Moreau.
182. On the basis of these antecedent facts, Rossi and Wyers filed in the CFI of
Olongapo City a complaint for damages against Sanders and Moreau. They
claimed that the letters contained libelous imputations that had exposed
them to ridicule and caused them mental anguish and that the prejudgment
of the grievance proceedings was an invasion of their personal and
proprietary rights. They made it clear that Sanders and Moreau were being
sued in their private or personal capacity.
183. However, in a motion to dismiss filed under a special appearance, Sanders
and Moreau argued that the acts complained of were performed by them in
the discharge of their official duties and that, consequently, the court had no
jurisdiction over them under the doctrine of state immunity.
 184. The motion was denied in an order on the main ground that Sanders and
Moreau had not presented any evidence that their acts were official in
nature and not personal torts, moreover, the allegation in the complaint was
that the they had acted maliciously and in bad faith.
a. The same order issued a writ of preliminary attachment,
conditioned upon the filing of a P10,000.00 bond by Rossi and
Wyers, against the properties of Moreau, who allegedly was then
about to leave the Philippines.
b. Subsequently, to make matters worse for the Sanders and Moreau,
Moreau was declared in default by the trial court. The motion to
lift the default order on the ground that Moreau's failure to appear
at the pre-trial conference was the result of some
misunderstanding, and the motion for reconsideration of the denial
of the motion to dismiss, which was filed by the Sanders and
Moreau’s new lawyers, were denied by the respondent court.
185. This petition for certiorari, prohibition and preliminary injunction was
thereafter filed before this Court, on the contention that the above-narrated
acts of the respondent court are tainted with grave abuse of discretion
amounting to lack of jurisdiction.
ISSUE/s:
36. W/N Sanders and Moreau should be liable in their personal capacity – NO,
because Rossi and Wyers failed to prove that they acted beyond their
official capacity. Case was dismissed for lack of jurisdiction as this case
should be filed against the US government.
RULING: WHEREFORE, the petition is GRANTED. The challenged orders dated
March 8, 1977, August 9, 1977, and September 7, 1977, are SET ASIDE. The
respondent court is directed to DISMISS Civil Case No. 2077-O. Our Temporary
restraining order of September 26, 1977, is made PERMANENT. No costs. SO
ORDERED.
RATIO:
37. It is stressed at the outset that the mere allegation that a government
functionary is being sued in his personal capacity will not automatically
remove him from the protection of the law of public officers and, if
appropriate, the doctrine of state immunity.
38. By the same token, the mere invocation of official character will not suffice
to insulate him from suability and liability for an act imputed to him as a
personal tort committed without or in excess of his authority. These well-
settled principles are applicable not only to the officers of the local state but
also where the person sued in its courts pertains to the government of a
foreign state, as in the present case.
39. The respondent judge, apparently finding that the complained acts were
prima facie personal and tortious, decided to proceed to trial to determine
inter alia their precise character on the strength of the evidence to be
submitted by the parties.
40. In past cases, this Court has held that where the character of the act
complained of can be determined from the pleadings exchanged between
the parties before the trial, it is not necessary for the court to require them to
belabor the point at a trial still to be conducted. Such a proceeding would be
superfluous, not to say unfair to the defendant who is subjected to
unnecessary and avoidable inconvenience.
41. In these and several other cases, the Court found it redundant to prolong the
proceedings after it had become clear that the suit could not prosper because
the acts complained of were covered by the doctrine of state immunity.
42. It is abundantly clear in the present case that the acts for which the
Sanders and Moreau are being called to account were performed by
them in the discharge of their official duties. Sanders, as director of the
special services department of NAVSTA, undoubtedly had supervision over
its personnel, including Rossi and Wyers, and had a hand in their
employment, work assignments, discipline, dismissal and other related
matters.
a. It is not disputed that the letter he had written was in fact a reply to
a request from his superior, Moreau, for more information
regarding the case of the private respondents.
b. Moreover, even in the absence of such request, he still was within
his rights in reacting to the hearing officer's criticism — in effect a
direct attack against him — that Special Services was practicing
"an autocratic form of supervision."
43. As for Moreau, what he is claimed to have done was write the Chief of
Naval Personnel for concurrence with the conversion of the Rossi and
Wyers’ type of employment even before the grievance proceedings had
even commenced. This act is clearly official in nature, performed by
Moreau as the immediate superior of Sanders and directly answerable to
Naval Personnel in matters involving the special services department of
NAVSTA.
a. In fact, the letter dealt with the financial and budgetary problems
of the department and contained recommendations for their
solution, including the re-designation of Rossi and Wyers. There
was nothing personal or private about it.
44. Given the official character of the above-described letters, we have to
conclude that Sanders and Moreau were, legally speaking, being sued as
officers of the United States government. As they have acted on behalf of
that government, and within the scope of their authority, it is that
government, and not Sanders and Moreau personally, that is responsible for
their acts.
45. Assuming that the trial can proceed and it is proved that the claimants have
a right to the payment of damages, such award will have to be satisfied not
by Sanders and Moreau in their personal capacities but by the United States
government as their principal.
46. There should be no question by now that such complaint cannot
 prosper unless the government sought to be held ultimately liable has our courts, which therefore has not acquired the competence to act on the
given its consent to be sued. The doctrine of state immunity is said claim.
applicable not only to our own government but also to foreign states
sought to be subjected to the jurisdiction of our courts.
47. "There can be no legal right against the authority which makes the law
on which the right depends." In the case of foreign states, the rule is
derived from the principle of the sovereign equality of states which
wisely admonishes that par in parem non habet imperium and that a
contrary attitude would "unduly vex the peace of nations." Our
adherence to this precept is formally expressed in Article II, Section 2,
of our Constitution, where we reiterate from our previous charters that
the Philippines "adopts the generally accepted principles of
international law as part of the law of the land."
48. All this is not to say that in no case may a public officer be sued as such
without the previous consent of the state.
49. The case at bar, to repeat, comes under the rule and not under any of the
recognized exceptions. The government of the United States has not given
its consent to be sued for the official acts of the petitioners, who cannot
satisfy any judgment that may be rendered against them. As it is the
American government itself that will have to perform the affirmative act of
appropriating the amount that may be adjudged for Rossi and Wyers, the
complaint must be dismissed for lack of jurisdiction.
50. The Court finds that, even under the law of public officers, the acts of the
Sanders and Moreau are protected by the presumption of good faith, which
has not been overturned by Rossi and Wyers. Even mistakes concededly
committed by such public officers are not actionable as long as it is not
shown that they were motivated by malice or gross negligence amounting to
bad faith.
51. A final consideration is that since the questioned acts were done in the
Olongapo Naval Base by Sanders and Moreau in the performance of their
official duties and Rossi and Wyers are themselves American citizens, it
would seem only proper for the courts of this country to refrain from taking
cognizance of this matter and to treat it as coming under the internal
administration of the said base.
52. The Sanders and Moreau’s counsel have submitted a memorandum replete
with citations of American cases, as if they were arguing before a court of
the United States. While these decisions do have persuasive effect upon us,
they can at best be invoked only to support our own jurisprudence We live
in a different ambience and must decide our own problems in the light of
our own interests and needs, and of our qualities and even idiosyncrasies as
a people, and always with our own concept of law and justice.
53. Rossi and Wyers must, if they are still so minded, pursue their claim against
Sanders and Moreau in accordance with the laws of the United States, of
which they are all citizens and under whose jurisdiction the alleged offenses
were committed. Even assuming that our own laws are applicable, the
United States government has not decided to give its consent to be sued in
 008 R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte
Pinochet (Valle)
2000 | House of Lords. | Immunity of Head of State
PETITIONER: Regina
RESPONDENTS: Bow street Metropolitan Stipendiary Magistrate
SUMMARY:
Pinochet was General and Commander in Chief in Chile until he organized a
coup and assumed the position as President of Chile. While the President,
Pinochet committed several Human rights violations which included hostage
taking, torture, and murder of his political opponents. Pinochet after some years
resigned as President. He travelled to London for medical treatment. That was
when he was issued a warrant and was arrested. The warrant originated in Spain
and the Metropolitan Magistrate issued a provisional warrant to arrest Pinochet.
Pinochet argued that as a Head of State, he is immune from criminal charges.
The issue is whether or not Pinochet, a former head of state, is immune from
criminal charges that he committed as President of Chile.
The Court vehemently said that Pinochet is not immune. The court explained
that while in position, a head of state enjoys immunity ratineo personae which
attaches to his person as the head of the state. But the same cannot be said to a
former head of state. Since Pinochet is not the current head of state, he merits no
immunity as a person. He can be considered immune based on the actions he
committed. The court said that to be immune rationae materiae the acts done
must be from functions of a head of state. In this case, murder, torture, and
hostage taking cannot be considered as functions of the head of state. Hence,
Pinochet is not immune.
DOCTRINE:
A former head of state had immunity from UK criminal jurisdiction for acts done
in official capacity as head of state but not for crimes of torture or conspiracy to
torture after ratification of international convention relating thereto.
FACTS:
186. Augusto Pinochet was once a General and Commander in Chief of the
Chilean Army. But in 1974, he organized a coup against the President of
Chile which was President Allende.
187. The coup was successful and Pinochet then assumed as the President of
Chile. Pinochet’s regime was known for its systematic and widespread
violation of Human Rights. There were also allegations of murder, hostage,
and torture of political enemies which were committed with the help of
countries such as Argentina and the Chilean police and secret service. He
remained in power until March 11, 1990 when he resigned.
188. Pinochet travelled to the UK for a medical treatment. Meanwhile, criminal
complaints against Pinochet were filed in a Spanish Court by private
citizens. The Spanish judge issued an international arrest warrant for
Pinochet’s arrest. A metropolitan magistrate issued a provisional arrest
warrant on the ground that Pinochet murdered Spanish citizens in Chile.
189. A second arrest warrant had to be issued because the first one had a defect.
The ground stated was not an extraditable offense. The Spanish judge
issued an international arrest warrant. On the same day, the Metropolitan
Magistrate issued a second provisional arrest warrant. The ground was that
from the year 1988 to 1992, Pinochet committed acts of torture and hostage
taking.
190. Pinochet was arrested following a request from Spain for his extradition so
that Pinochet may stand in trial for all the crimes of genocide and terrorism.
191. Pinochet applied to quash the two warrants. His lawyers argued that as a
former head of state, he is immune to prosecution at common law.
192. The Divisional Court granted the quashal of the warrants, agreeing with
Pinochet that he is immune. He was a former head of state and he acted in
sovereign capacity.
193. But on appeal, the House of Lords set aside the decision. The House of
Lords held Pinochet as not immune for crimes under International Law. The
Convention on Torture which Chile, Spain, and UK were parties to, was
cited by the House of Lords.
194. the judgement was however set aside because the Committee was not
properly constituted. The appeal came on again for rehearing before the
Lordships. Republic of Chile applied to interevene asa party. Chile urged
that immunity be afforded to Pinochet. Any immunity precluding criminal
charges against Pinochet is the immunity of the Republic of Chile.
195. Motion for leave to intervene was granted to Chile.
196. Spain moved to widen the charges against Pinochet.
ISSUE/s:
54. WoN Pinochet has state immunity– No because as a former Head of State
the acts that can be considred immune are only those that have been
committed in performance or exercise of the functions of the head of state.
The court cannot consider torture, murder, hostage taking as performance of
the head of state.
RULING: By a majority, their Lordships allowed the appeal and held that Pinochet
was not entitled to immunity.
RATIO:
Lord Browne-Wilkinson
1. It is a basic principle of international law that one sovereign state (the forum
state) does not adjudicate on the conduct of a foreign state. The foreign state
is entitled to procedural immunity from the processes of the forum state.
2. This immunity extends to both criminal and civil liability. his immunity
enjoyed by a head of state in power and an ambassador in post is a complete
immunity attaching to the person of the head of state or ambassador
and rendering him immune from all actions or prosecutions whether or not
they relate to matters done for the benefit of the state. Such immunity is said
 to be granted ratione personae.
3. But in this case, Pinochet is a former head of state now. The continuing
partial immunity of the ambassador after leaving post is of a different
kind from that enjoyed ratione personae while he was in post. Since he is
no longer the representative of the foreign state he merits no particular
privileges or immunities as a person. However in order to preserve the
integrity of the activities of the foreign state during the period when he was
ambassador, it is necessary to provide that immunity is afforded to his
official acts during his tenure in post. If this were not done the sovereign
immunity of the state could be evaded by calling in question acts done
during the previous ambassador’s time.
4. at common law a former head of state enjoys similar immunities, ratione
materiae, once he ceases to be head of state. He too loses immunity ratione
personae on ceasing to be head of state.
5. The question then which has to be answered is whether the alleged
organisation of state torture by Senator Pinochet (if proved) would
constitute an act committed by Senator Pinochet as part of his official
functions as head of state. It is not enough to say that it cannot be part of the
functions of the head of state to commit a crime. Actions which are criminal
under the local law can still have been done officially and therefore give
rise to immunity ratione materiae. The implementation of torture cannot
be a state function.
6. It is not doubted that as a matter of general customary international law a
head of state will personally be liable to be called to account if there is
sufficient evidence that he authorised or perpetrated such serious
international crimes.
7. Pinochet organised and authorised torture; he was not acting in any
capacity which gives rise to immunity ratione materiae because such
actions were contrary to international law, Chile had agreed to outlaw
such conduct and Chile had agreed with the other parties to the Torture
Convention that all signatory states should have jurisdiction to try official
torture (as defined in the Convention) even if such torture were committed
in Chile.
Lord Goff of Chieveley
1. A head of state will, under the statute as at international law, enjoy state
immunity ratione personae so long as he is in office, and after he ceases
to hold office will enjoy the concomitant immunity ratione materiae “in
respect of acts performed [by him] in the exercise of his functions [as head
of state],” the critical question being “whether the conduct was engaged in
under colour of or in ostensible exercise of the head of state’s public
authority.”
2. This immunity applies ot both civil and criminal proceedings. Since the
immunity applies to any form of legal process. The principle of state
immunity is expressed in the Latin maxim par in parem non habet
imperium, the effect of which is that one sovereign state does not adjudicate
on the conduct of another. This principle applies as between states, and the
head of a state is entitled to the same immunity as the state itself, as are the
diplomatic representatives of the state.
Lord Hope of Craighead (DISSENTING)
1. Section 20(1)(a) of the State Immunity Act 1978 provides that the
Diplomatic Privileges Act 1964 applies, subject to “any necessary
modifications,” to a head of state as it applies to the head of a diplomatic
mission.
2. It seems to me to be clear therefore that what section 20(1) did was to give
statutory force in the United Kingdom to customary international law as to
the immunity which heads of state, and former heads of state in particular,
enjoy from proceedings in foreign national courts. Marcos and Marcos v.
Federal Department of Police (1989) supports this view, as it was held in
that case that the article 39(2) immunity was available under customary
international law to the former head of State of the Republic of the
Philippines.
3. In my opinion the functions of the head of state are those which his own
state enables or requires him to perform in the exercise of government. He
performs these functions wherever he is for the time being as well as within
his own state. These may include instructing or authorising acts to be done
by those under his command at home or abroad in the interests of state
security. It would not be right therefore to confine the immunity under
article 39(2) to acts done in the receiving state.
4. The test is whether they were private acts on the one hand or
governmental acts done in the exercise of his authority as head of state
on the other. It is whether the act was done to promote the state’s
interests – whether it was done for his own benefit or gratification or was
done for the state.
5. The purpose for which they were performed protects these acts from
any further analysis. There are only two exceptions to this approach
which customary international law has recognised. The first relates to
criminal acts which the head of state did under the colour of his
authority as head of state but which were in reality for his own pleasure
or benefit.
6. The examples which Lord Steyn [2000] 1 A.C. 61, 115C-E gave of the head
of state who kills his gardener in a fit of rage or who orders victims to be
tortured so that he may observe them in agony seem to me plainly to fall
into this category and, for this reason, to lie outside the scope of the
immunity.
7. The second relates to acts the prohibition of which has acquired the status
under international law of jus cogens. This compels all states to refrain from
such conduct under any circumstances and imposes an obligation erga
omnes to punish such conduct.
Lord Hutton (Dissent)
1. I agree with the view of Lord Browne-Wilkinson that Senator Pinochet is
entitled to immunity in respect of charges of murder and conspiracy to
 murder, but I wish to make some observations on the issue of immunity
claimed by Senator Pinochet in respect of charges of torture and
conspiracy to torture.
2. One of the issues raised before your Lordships is whether section 20 of the
State Immunity Act 1978 relates only to the functions carried out by a
foreign head of state when he is present within the United Kingdom, or
whether it also applies to his actions in his own state or in another country.
Section 20 is a difficult section to construe, but I am of opinion that, with
the necessary modifications, the section applies the provisions of the
Diplomatic Privileges Act, and therefore the articles of the Vienna
Convention, to the actions of a head of state in his own country or
elsewhere.
3. But the acts of torture which Senator Pinochet is alleged to have committed
were not acts carried out in his private capacity for his personal
gratification. If that had been the case they would have been private acts and
it is not disputed that Senator Pinochet, once he had ceased to be head of
state, would not be entitled to claim immunity in respect of them.
Lord Millet (Not the main opinion but he discussed the two immunities better
than the other Lords)
1. State immunity is not a personal right. It is an attribute of the sovereignty of
the state. The immunity which is in question in the present case, therefore,
belongs to the Republic of Chile, not to Senator Pinochet. It may be asserted
or waived by the state, but where it is waived by treaty or convention the
waiver must be express. So much is not in dispute.
2. Immunity ratione personae is a status immunity. An individual who
enjoys its protection does so because of his official status. It enures for his
benefit only so long as he holds office. While he does so he enjoys absolute
immunity from the civil and criminal jurisdiction of the national courts of
foreign states. But it is only narrowly available. It is confined to serving
heads of state and heads of diplomatic missions, their families and servants.
3. Immunity rationae materia is very different. his is a subject matter
immunity. It operates to prevent the official and governmental acts of
one state from being called into question in proceedings before the
courts of another, and only incidentally confers immunity on the
individual. It is therefore a narrower immunity but it is more widely
available. It is available to former heads of state and heads of diplomatic
missions, and any one whose conduct in the exercise of the authority of the
state is afterwards called into question, whether he acted as head of
government, government minister, military commander or chief of police,
or subordinate public official.
4. In Pinochet’s case, charges brought against Senator Pinochet are concerned
with his public and official acts, first as Commander-in-Chief of the Chilean
army and later as head of state. He is accused of having embarked on a
widespread and systematic reign of terror in order to obtain power and then
to maintain it.
5. If the allegations against him are true, he deliberately employed torture as
an instrument of state policy. As international law stood on the eve of the
Second World War, his conduct as head of state after he seized power
would probably have attracted immunity ratione materiae.
6. If so, I am of opinion that it would have been equally true of his conduct
during the period before the coup was successful. He was not then, of
course, head of state. But he took advantage of his position as
Commander-in-Chief of the army and made use of the existing military
chain of command to deploy the armed forces of the state against its
constitutional government. These were not private acts. They were
official and governmental or sovereign acts by any standard.
7. In my view a serving head of state or diplomat could still claim immunity
ratione personae if charged with an offence under section 134. He does not
have to rely on the character of the conduct of which he is accused. The
nature of the charge is irrelevant; his immunity is personal and absolute. But
the former head of state and the former diplomat are in no different position
from anyone else claiming to have acted in the exercise of state authority.
8. The the Republic of Chile was a party to the Torture Convention, and must
be taken to have assented to the imposition of an obligation on foreign
national courts to take and exercise criminal jurisdiction in respect of the
official use of torture. I do not regard it as having thereby waived its
immunity.
9. In my opinion there was no immunity to be waived. The offence is one
which could only be committed in circumstances which would normally
give rise to the immunity. The international community had created an
offence for which immunity ratione materiae could not possibly be
available. International law cannot be supposed to have established a crime
having the character of a jus cogens and at the same time to have provided
an immunity which is coextensive with the obligation it seeks to impose.
 CASE OF AL-ADSANI v. THE UNITED KINGDOM (VARGAS) FACTS:
November 21, 2001 | European Court of Human Rights | State Immunity 1. Al-Adsani [Applicant] went to the English Courts claiming a
violation of human rights. The applicant made the following
PETITIONER: Al-Adsani allegations:
RESPONDENTS: United Kingdom a. The applicant went to Kuwait to assist in its defense against Iraq.
SUMMARY: The applicant Al Adsani went to Kuwait served as a pilot in the Kuwaiti Air During said period, he came into possession of sex videotapes
Force during the Gulf War and remained in Kuwait after the Iraqi invasion. He came into involving the Sheikh, who is related to the Emir of Kuwait and holds
possession of sexual video tapes involving a Sheikh related to the Emir of Kuwait. According an influential position in Kuwait. By some means, this videotape
to the applicant, the sheikh, who held him responsible for the tapes entering general
circulation, gained entry to his house along with two others, beat him and took him at
entered general circulation, for which the applicant was held
gunpoint to the State Security Prison, where he was detained for several days and repeatedly responsible by the Sheikh.
beaten by guards. He was later taken at gunpoint to a palace where he was repeatedly held b. After the fiasco between Iraq and Kuwait, the Sheikh and 2 others
under water in a swimming pool before being taken to a small room where the sheikh set fire gained entry to the applicant’s house, beat him, and took him at
to mattresses soaked in petrol, as a result of which the applicant sustained serious burns. After gunpoint in a government jeep to the Kuwaiti State Security Prison.
returning to the United Kingdom, the applicant instituted civil proceedings against the sheikh
and the Government of Kuwait. He obtained a default judgment against the sheikh and was The applicant was falsely imprisoned and was repeatedly beaten by
subsequently granted leave to serve proceedings on two named individuals. However, he was the security guards until his eventual release after having been forced
refused leave to serve the writ on the Kuwaiti Government. On appeal, the Court of Appeal to sign a false confession.
concluded that leave should be granted and the writ was served, but on the application of the c. 2 days after his release, the Sheikh took the applicant at gunpoint
Kuwaiti Government the High Court ordered that the proceedings be struck out on the ground
that the Kuwaiti Government was entitled to state immunity. The applicant's appeal was
in a government car to the palace of Emir's brother. At first the
dismissed by the Court of Appeal and leave to appeal to the House of Lords was refused. The applicant’s head was repeatedly held underwater in a swimming-pool
issue in this case is WON the Kuwaiti Government must be granted State Immunity. The containing corpses, and he was then dragged into a small room
Court said that it is entitled to State Immunity because in the present case, the applicant did where the Sheikh set fire to mattresses soaked in petrol, as a result of
not contend that the alleged torture took place within the jurisdiction of the United Kingdom which the applicant was seriously burnt.
or that the United Kingdom authorities had any causal connection with its occurrence. Thus, it
could not be said that the State was under a duty to provide a civil remedy in respect of d. Initially, the applicant was treated in a Kuwaiti hospital. Then he
torture allegedly carried out by the Kuwaiti authorities. Moreover, the applicant contended returned to England where he was hospitalized for six weeks. He
that the prohibition of torture had acquired the status of jus cogens, taking precedence over also suffered psychological disorder and post-traumatic stress
treaty law and other rules of international law. While his allegations had never been proved, disorder, aggravated by the fact the once in England, he received
the alleged ill- treatment could properly be categorised as torture within the meaning of
Article 3 of the Convention. The right enshrined in that provision is absolute and several other
threats warning him to reveal his plight to public.
international treaties also prohibit torture; in addition, a number of judicial statements have 2. Thereafter, the applicant instituted civil proceedings in England for
been made to the effect that the prohibition of torture has attained the status of a peremptory compensation against the Sheikh and the State of Kuwait as regards
norm or jus cogens, which the Court accepted. However, the present case did not concern the his injury to his physical and mental health caused by said torture in
criminal liability of an individual but the immunity of a State in civil proceedings and there Kuwait and the threats against his life after his return to the UK. He
was no firm basis in international instruments, judicial authorities or other materials for
concluding that, as a matter of international law, a State no longer enjoys immunity from civil also amended his complaint to include 2 individuals as defendants.
suit in the courts of another State in respect of alleged torture. Consequently, the United 3. The Court held, on the basis of applicant’s allegations, that there
Kingdom statute was not inconsistent with those limitations generally accepted by the were three elements pointing towards State responsibility for the
community of nations as part of the doctrine of State immunity and the application of its events in Kuwait:
provisions could not be said to have amounted to an unjustified restriction on the applicant's
access to court.
a. The applicant has been taken to a State prison.
DOCTRINE: The right of access to a court is not absolute and may be subject to limitations b. Government transport had been used.
that pursue a legitimate aim and which ensure that there is reasonable relationship of c. He had been mistreated by public officials.
proportionality between the means employed and the aim sought to be achieved. Applying Kuwait should not be afforded State immunity under Sec. 1(1) of
this test to the application of state immunity laws, the European Court has made clear its view State Immunity Act of 1978 [The 1978 Act] as regards acts of
that the grant of sovereign immunity to a State in civil proceedings does pursue the legitimate
aim of complying with international law to promote comity and good relations between States
torture. Moreover, there was medical evidence indicating that the
through the respect of another State’s sovereignty.
 applicant suffered damage while in UK. It follows, therefore, that the
leave should be granted to serve the writ on the State of Kuwait.
4. The Kuwaiti Government, after receiving the writ, sought an order
striking out the proceedings. The application was examined by the
High Court which ruled in favor of Kuwait. In said judgment, the
High Court said that it was for the applicant Al-Adsani to show on
the balance of the probabilities that the State of Kuwait was not
entitled to immunity under the 1978 Act.
5. The applicant appealed to the Court of Appeals which still ruled
against Al-adsani. The court held that the applicant had not
established on the balance of probabilities that the State of Kuwait
was responsible for the threats made in the United Kingdom. The
important question was, therefore, whether State immunity applied in
respect of the alleged events in Kuwait.
ISSUE/s:
1. WON the striking out of proceedings is proper based on State
Immunity - YES. Although Articles 1 and 3 taken together place a
number of positive obligations on States, designed to prevent and
provide redress for torture and other ill-treatment, the obligation
applies only in relation to acts allegedly committed within the State's
jurisdiction.
2. WON the grant of State Immunity in favor of Kuwait of proper -
YES. The grant of sovereign immunity to a State in civil proceedings
pursues the legitimate aim of complying with international law to
promote comity and good relations between States.
RULING: FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been no violation of Article 3 of the
Convention;
2. Holds by nine votes to eight that there has been no violation of Article 6 §
1 of the Convention.
RATIO:
Article 3 of the Convention
1. The United Nations 1975 Declaration on the Protection of All Persons
from Being Subjected to Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment provides in Article 3 that: “No State may permit
or tolerate torture and other cruel inhuman or degrading treatment or
punishment.”
2. It should be noted that the prohibition of torture laid down in human rights
treaties enshrines an absolute right, which can never be derogated from,
not even in time of emergency. This is linked to the fact, discussed below,
that the prohibition on torture is a peremptory norm or jus cogens. This
prohibition is so extensive that States are even barred by international law
from expelling, returning or extraditing a person to another State where
there are substantial grounds for believing that the person would be in
danger of being subjected to torture.
3. It is true that, taken together, Articles 1 and 3 place a number of positive
obligations on the High Contracting Parties, designed to prevent and
provide redress for torture and other forms of ill-treatment. However, in
each case the State’s obligation applies only in relation to ill-treatment
allegedly committed within its jurisdiction.
4. In the present case, as the applicant did not contend that the alleged torture
took place within the jurisdiction of the United Kingdom or that the
United Kingdom authorities had any causal connection with its
occurrence, it could not be said that the State was under a duty to provide
a civil remedy in respect of torture allegedly carried out by the Kuwaiti
authorities.
Article 6 & 1 of the Convention (Access to Courts)
1. Article 6 § 1 secures to everyone the right to have any claim relating to his
civil rights and obligations brought before a court. The right of access to a
court is not, however, absolute, but may be subject to limitations; these are
permitted by implication since the right of access by its very nature calls
for regulation by the State.
2. It must be satisfied that the limitations applied do not restrict or reduce the
access left to the individual in such a way or to such an extent that the
very essence of the right is impaired. Furthermore, a limitation will not be
compatible with Article 6 § 1 if it does not pursue a legitimate aim and if
there is no reasonable relationship of proportionality between the means
employed and the aim sought to be achieved
3. The Court must first examine whether the limitation pursued a legitimate
aim.
4. Sovereign immunity is a concept of international law, developed out of the
principle par in parem non habet imperium, by virtue of which one State
shall not be subject to the jurisdiction of another State. The Court
considers that the grant of sovereign immunity to a State in civil
proceedings pursues the legitimate aim of complying with international
law to promote comity and good relations between States through the
respect of another State’s sovereignty.
5. The Court must next assess whether the restriction was proportionate to
the aim pursued.
6. It reiterates that the Convention has to be interpreted in the light of the
rules set out in the Vienna Convention on the Law of Treaties of 23 May
1969, and that Article 31 § 3 (c) of that treaty indicates that account is to
be taken of “any relevant rules of international law applicable in the
relations between the parties”. The Convention, including Article 6,
cannot be interpreted in a vacuum. The Court must be mindful of the
Convention’s special character as a human rights treaty, and it must also
take the relevant rules of international law into account
7. In the present case, the proceedings which the applicant intended to pursue
concerned a recognised cause of action, namely damages for personal
injury, and the grant of immunity did not qualify a substantive right but
constituted a procedural bar on the courts' power to determine the right.
There thus existed a serious and genuine dispute over civil rights and
Article 6 was applicable.
8. However, the present case did not concern the criminal liability of an
individual but the immunity of a State in civil proceedings and there was
no firm basis in international instruments, judicial authorities or other
materials for concluding that, as a matter of international law, a State no
longer enjoys immunity from civil suit in the courts of another State in
respect of alleged torture.
9. Consequently, the United Kingdom statute was not inconsistent with those
limitations generally accepted by the community of nations as part of the
doctrine of State immunity and the application of its provisions could not
be said to have amounted to an unjustified restriction on the applicant's
access to court.
 Jurisdictional Immunities of the State
(Germany v. Italy, Greece Intervening) (Vicencio)
February 3, 2012 | International Court of Justice. | State Immunity
PETITIONER: Federal Republic of Germany
RESPONDENTS: Italian Republic
SUMMARY: Germany instituted proceedings against the Italian Republic,
requesting the Court to declare that Italy had failed to respect the jurisdictional
immunity which Germany enjoys under international law. Greece stated that it
wished to intervene in the aspect of the procedure relating to judgments rendered
by its own courts on the Distomo massacre and enforced (exequatur) by the
Italian courts.
On whether Italy had violated Germany’s jurisdictional immunity by allowing
civil claims to be brought against Germany in the Italian courts for reparations
for injuries caused by the Third Reich during the WWII: the Court held that (1) a
state is not deprived of immunity by reason of fact that it was accused of serious
violations of international human rights or armed conflict, (2) the principle of
state immunity does not conflict with jus cogens norms because state immunity
is confined to the exercise of jurisdiction of one state in respect of another’s, and
not whether conduct is lawful or unlawful, and (3) state immunity is not
dependent on alternative means to secure redress.
On whether a measure of constraint taken against property belonging to
Germany located on Italian territory constituted a breach by Italy of Germany’s
immunity: Germany had in no way consented to the registration of the legal
charge in question, nor allocated Villa Vigoni for the satisfaction of the judicial
claims against it. Since the conditions permitting a measure of constraint to be
taken against property belonging to a foreign State had not been met, Italy had
violated its obligation to respect Germany’s immunity.
On whether Italy had violated Germany’s immunity by declaring enforceable in
Italy civil judgments rendered by Greek courts against Germany in proceedings
arising out of the massacre committed in the Greek village of Distomo: the Court
held that it was also a violation of Germany’s state immunity.
DOCTRINE: Under customary international law as it presently stood, a State
was not deprived of immunity by reason of the fact that it was accused of serious
violations of international human rights law or the international law of armed
conflict.
The rules of State immunity were confined to determining whether or not the
courts of one State could exercise jurisdiction in respect of another State. They
did not bear upon the question whether or not the conduct in respect of which the
proceedings were brought was lawful or unlawful; hence, not in conflict with jus
cogens norms.
FACTS:
1. The Federal Republic of Germany instituted proceedings against the Italian
Republic, requesting the Court to declare that Italy had failed to respect the
jurisdictional immunity which Germany enjoys under international law by
allowing civil claims to be brought against it (Germany) in the Italian courts
seeking reparation for injuries caused by violations of international
humanitarian law committed by the Third Reich during the Second World
War.
2. In addition, Germany asked the Court to find that Italy had also violated
Germany’s immunity by taking measures of constraint against Villa Vigoni,
German State property situated in Italian territory.
3. Finally, Germany requested the Court to declare that Italy had breached
Germany’s jurisdictional immunity by declaring enforceable in Italy
decisions of Greek civil courts rendered against Germany on the basis of
acts similar to those which had given rise to the claims brought before
Italian courts. Germany referred in particular to the judgment rendered
against it in respect of the massacre committed by German armed forces
during their withdrawal in 1944, in the Greek village of in the Distomo case.
4. As basis for the Court’s jurisdiction, Germany invoked Article 1 of the
European Convention for the Peaceful Settlement of Disputes of 29 April
1957, ratified by Italy and by Germany.
5. In its Counter-Memorial, Italy, referring to Article 80 of the Rules of Court,
made a counter-claim “with respect to the question of the reparation owed
to Italian victims of grave violations of international humanitarian law
committed by forces of the German Reich”.
6. Italy based the Court’s jurisdiction to entertain that counter-claim on
Article 1 of the European Convention, taken together with Article 36,
paragraph 1, of the Statute of the Court. Italy further asserted that there was
“a direct connection between the facts and law upon which [it] relies in
rebutting Germany’s claim and the facts and law upon which [it] relies to
support its counter-claim”.
7. The Court found that the counter-claim presented by Italy was inadmissible,
because the dispute that Italy intended to bring before the Court by way of
its counter-claim related to facts and situations existing prior to the entry
into force as between the parties of the European Convention for the
Peaceful Settlement of Disputes of 29 April 1957, which formed the basis
of the Court’s jurisdiction in the case (Order of 6 July 2010).
8. After the filing of the aforementioned Memorial and Counter-Memorial, the
Court authorized the submission of a Reply by Germany and a Rejoinder by
Italy.
9. On 13 January 2011, Greece filed an Application requesting permission to
intervene in the case.
10. In its Application, Greece stated that it wished to intervene in the aspect of
the procedure relating to judgments rendered by its own courts on
the Distomo massacre and enforced (exequatur) by the Italian courts.
 11. The Court, in an Order of 4 July 2011, considered that it might find it
necessary to consider the decisions of Greek courts in the Distomo case, in
light of the principle of State immunity, for the purposes of making findings
with regard to Germany’s submission that Italy had breached its
jurisdictional immunity by declaring enforceable in Italy decisions of Greek
courts founded on violations of international humanitarian law committed
by the German Reich during the Second World War.
12. This permitted the conclusion that Greece had an interest of a legal nature
which might have been affected by the judgment in the case and,
consequently, that Greece could be permitted to intervene as a non-party “in
so far as this intervention is limited to the decisions of Greek courts [in
the Distomo case].”
ISSUE/s:
55. WoN the Italian Republic had failed to respect the jurisdictional immunity
which Germany enjoys under internaltion law in the issues presented –
YES, on all it is Italy’s obligation under international law to respect
Germany’s state immunity.
RULING: The Court therefore holds that the action of the Italian courts in denying
Germany the immunity to which the Court has held it was entitled under customary
international law constitutes a breach of the obligations owed by the Italian State to
Germany.
RATIO:
The Court first examined the question whether Italy had violated Germany’s
jurisdictional immunity by allowing civil claims to be brought against that State in
the Italian courts seeking reparations
1. The Court noted in this respect that the question which it was called upon to
decide was not whether the acts committed by the Third Reich during the
Second World War were illegal, but whether, in civil proceedings against
Germany relating to those acts, the Italian courts were obliged to accord
Germany immunity.
2. The Court held that the action of the Italian courts in denying Germany
immunity constituted a breach of Italy’s international obligations.
3. The Court observes that the essence of the first Italian argument is that
customary international law has developed to the point where a State is no
longer entitled to immunity in respect of acts occasioning death,
personal injury or damage to property on the territory of the forum
State, even if the acts in question were performed jure imperii. This is
the “tort exception” to State immunity.
4. After conducting an in-depth examination of the relevant national and
international practice, the Court concludes that customary international
law continues to require that a State be accorded immunity in
proceedings for torts allegedly committed on the territory of another
State by its armed forces and other organs in the course of conducting
an armed conflict. The Court accordingly concludes that the decision of
the Italian courts to deny immunity to Germany cannot be justified on the
basis of the territorial tort principle.
5. It stated in this connection that, under customary international law as it
presently stood, a State was not deprived of immunity by reason of the
fact that it was accused of serious violations of international human
rights law or the international law of armed conflict.
6. The Court further observed that, assuming that the rules of the law of
armed conflict which prohibited murder, deportation and slave labour
were rules of jus cogens, there was no conflict between those rules and
the rules on State immunity.
7. The two sets of rules addressed different matters. The rules of State
immunity were confined to determining whether or not the courts of
one State could exercise jurisdiction in respect of another State. They
did not bear upon the question whether or not the conduct in respect of
which the proceedings were brought was lawful or unlawful.
8. The Court then examined Italy’s argument that the Italian courts were
justified in denying Germany immunity, because all other attempts to secure
compensation for the various groups of victims involved in the Italian
proceedings had failed.
9. The Court found no basis in the relevant domestic or international
practice that international law made the entitlement of a State to
immunity dependent upon the existence of effective alternative means
of securing redress.
The Court then addressed the question whether a measure of constraint taken
against property belonging to Germany located on Italian territory constituted a
breach by Italy of Germany’s immunity.
10. Italy had registered a legal charge on the property in question following a
decision by the Italian courts declaring that the judgments of the Greek
courts were enforceable in Italy and awarding pecuniary damages against
Germany. The Court noted that Villa Vigoni was being used for
governmental purposes that were entirely non-commercial ; that Germany
had in no way consented to the registration of the legal charge in question,
nor allocated Villa Vigoni for the satisfaction of the judicial claims against
it.
11. Since the conditions permitting a measure of constraint to be taken against
property belonging to a foreign State had not been met in this case, the
Court concluded that Italy had violated its obligation to respect Germany’s
immunity from enforcement.
Finally, the Court examined the question whether Italy had violated Germany’s
immunity by declaring enforceable in Italy civil judgments rendered by Greek courts
against Germany in proceedings arising out of the massacre committed in the Greek
village of Distomo by the armed forces of the Third Reich in 1944.
12. It considered that the relevant question was whether the Italian courts had
respected Germany’s immunity in allowing the application for exequatur
by the victims of the massacre in Italian Courts.
 a. The successful Greek claimants needed to applied to the Italian
courts for exequatur of those judgments, so as to be able to have
them enforced in Italy, since it was impossible to enforce them in
Greece or in Germany.
b. The purpose of exequatur proceedings is not to decide on the
merits of a dispute, but simply to render an existing judgment
enforceable on the territory of a State other than that of the court
which ruled on the merits
13. It observed that a court seised of an application for exequatur of a foreign
judgment rendered against a third State had to ask itself whether, in the
event that it had itself been seised of the merits of a dispute identical to that
which was the subject of the foreign judgment, it would have been obliged
under international law to accord immunity to the respondent State.
14. The Italian courts would have been obliged to grant immunity to Germany
if they had been seised of the merits of a case identical to that which was
the subject of the decisions of the Greek courts which it was sought to
declare enforceable (namely, the case of the Distomo massacre).
Accordingly, they could not grant exequatur without thereby violating
Germany’s jurisdictional immunity.
15. It found that the decisions of the Italian courts declaring enforceable in Italy
the civil judgments rendered against Germany by Greek courts in
proceedings arising out of the massacre committed in Greece in 1944
constituted a violation by Italy of its obligation to respect the jurisdictional
immunity of Germany.
Other matters:
16. Accordingly, the Court declared that Italy must, by enacting appropriate
legislation, or by resorting to other methods of its choosing, ensure that
the decisions of its courts and those of other judicial authorities
infringing the immunity which Germany enjoyed under international
law cease to have effect.
17. It should be noted that, on 14 January 2013, the Italian Parliament adopted a
draft law concerning the accession of Italy to the United Nations
Convention on Jurisdictional Immunities of States and Their Property, and
provisions adapting national law. This law was published in the Official
Journal of the Italian Republic on 29 January 2013.
18. Article 3 thereof, entitled “Compliance with the judgments of the
International Court of Justice” states that the International Court of Justice
having excluded the possibility of certain acts of another State being
submitted to the Italian civil jurisdiction, the court hearing the dispute
relating to those acts shall find on its own motion that it lacks jurisdiction,
even when a preliminary judgment establishing its jurisdiction has already
become res judicata, and whatever the state or phase of the proceedings. It
adds that any ruling having the effect of res judicata which is not consonant
with a judgment of the International Court of Justice, even where that
judgment is rendered subsequently, may also be subject to revision for lack
of civil jurisdiction.
 011 ARREST WARRANT OF 11 APRIL 2000 (DEMOCRATIC REPUBLIC
OF THE CONGO v. BELGIUM) (Villavicencio)
February 14, 2002 | Immunity of Minister of Foreign Affairs
PETITIONER: Democratic Republic of the Congo
RESPONDENTS: Belgium
SUMMARY: An investigating judge of Brussel issued an international arrest
warrant in absentia against Mr. Abdulaye Yerodia Ndombasi, Minister of
Foreign Affairs of Congo, charging him as perpetrator or co-perpetrator of
offenses constituting grave breaches of Geneva Conventions of 1949 and of
Additional Protocols, and with crimes against humanity. Congo instituted
proceedings before ICJ, requesting Belgium to annul the arrest warrant. Congo’s
arguments include that this constituted a violation of the principle of
sovereignty, violation of diplomatic immunity of the Minister of Foreign
Aggairs, and violation of immunity from criminal process under customary
international law. WoN Mr. Abdulaye Yerodia Ndombasi was immune from
criminal prosecution? Yes because Ndombasi enjoys immunity under customary
international law. The Court finds that the cited Conventions provide useful
guidance on certain aspects of the question of immunities, but that they do not
contain any provision specifically defining the immunities enjoyed by Ministers
for Foreign Affairs. After an examination of Minister of Foreign Affairs’
functions, the Court concludes that they are such that, throughout the duration of
his or her office, a Minister for Foreign Affairs when abroad enjoys full
immunity from criminal jurisdiction and inviolability.
DOCTRINE: In customary international law, the immunities accorded to
Ministers for Foreign Affairs are not granted for their personal benefit, but to
ensure the effective performance of their functions on behalf of their respective
States.
The iminunity and that inviolability protect the individual concerned against any
act of authority of another State that would hinder him or her in the perfomance
of his or her duties.
The Court emphasizes, however, that the immunity from jurisdiction enjoyed by
incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity
in respect of any crimes they might have committed, irrespective of their gravity.
FACTS:
1. On 11 April 2000 an investigating judge of the Brussels tribunal de premiere
instance issued "an international arrest warrant in absentia" against Mr.
Abdulaye Yerodia Ndombasi, charging him, as perpetrator or co-perpetrator,
with offences constituting grave breaches of the Geneva Conventions of 1949
and of the Additional Protocols thereto, and with crimes against humanity.
2. The arrest warrant was circulated internationally through Intelrpol.
3. At the time when the arrest warrant was issued Mr. Yerodia was the Minister for
Foreign Affairs of the Congo.
4. The crimes with which Mr. Yerodia was charged were punishable in Belgium
under the Law of 16 June 1993 "concerning the Punishment of Grave Breaches
of the International Geneva Conventions of 12 August 1949 and of Protocols I
and I1 of 8 June 1977 Additional Thereto", as amended by the Law of 19
February 1999 "concerning the Punishment of Serious Violations of
International Humanitarian Law" (hereinafter referred to as the "Belgian Law"').
5. On 17 October 2000, the Congo instituted proceedings before the International
Court of Justice, requesting the Court "to declare that the Kingdom of Belgium
shall annul the international arrest warrant -issued on 11 April 2000".
6. After the proceedings were instituted, Mr. Yerodia ceased to hold office as
Minister for Foreign Affairs, and subsequently ceased to hold any ministerial
office.
7. In its Application instituting proceedings, the Congo relied on two separate legal
grounds.
8. First, it claimed that "the universal jurisdiction that the Belgian State attributes
to itself under Article 7 of the Law in question" constituted a "[v]iolation of the
principle that a State may not exercise its authority on the territory of another
State and of the principle of sovereign equality anlong all Members of the
United Nations".
9. Secondly, it claimed that "[tlhe non- recognition, on the basis of Article 5 ... of
the Belgian Law, of the immunity of a Minister for Foreign Affairs in office"
constituted a "[v]iolation of the diplomatic immunity of the Minister for Foreign
Affairs of a sovereign State".
10. However, the (Congo's Memorial and its final submissions refer only to a
violation "in regard to the ... Congo of the rule of customary international law
concerning the absolute inviolability and immunity from criminal process of
incumbent foreign ministers".
ISSUE/s:
1. WoN Mr. Abdulaye Yerodia Ndombasi was immune from criminal
prosecution? Yes because Ndombasi enjoys immunity under customary
international law.
RULING: In its Judgment in the case concerning the Arrest Warrant of 11 April
2000 (Democratic Republic of the Congo v. Belgium), the Court found, by thirteen
votes to three, that the issue against Mr. Abdulaye Yerodia Ndombasi of the arrest
warrant of 11 April 2000, and its international circulation, constituted violations of a
legal obligation of the Kingdom of Belgium towards the Democratic Republic of the
Congo, in that they failed to respect the immunity from criminal jurisdiction and the
inviolability which the incumbent Minister for Foreign Affairs of the Democratic
Republic of the Congo enjoyed under international law.
RATIO:
1. The Court observes at the outset that in international law it is firnlly established
that, as also diplomatic and consular agents, certain holders of high-ranking
office in a State, such as the Head of State, Head of Governmetit and Minister
for Foreign Affairs; enjoy immunities from juriscliction in other States, both
civil and criminal.
2. For the purposes of the present case, it is only the immunity from criminal
jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs
that fall for the Court to consider.
3. The Court notes that a certain number of treaty instruments were cited by tlie
Parties in this regard, including the Vienna Convention on Diplomatic Relatioils
of 18 April 1961 and the New York Conveiltion on Special Missions of 8
December 1969
4. The Court finds that these Conventions provide useful guidance on certain
aspects of the question of immunities, but that they do not contain any provision
specifically defining the immunities enjoyed by Ministers for Foreign Affairs
5. It is consequently on the basis of customary international law that the Court
must decide the questions relating to the immunities of such Ministers raised in
the present case.
6. In customary international law, the immunities accorded to Ministers for
Foreign Affairs are not granted for their personal benefit, but to ensure the
effective performance of their functions on behalf of their respective States.
7. In order to determine the extent of these immunities, the Court must therefore
first consider the nature of the functions exercised by a Minister for Foreign
Affairs.
8. After an examination of those functions, the Court concludes that they are such
that, throughout the duration of his or her office, a Minister for Foreign Affairs
when abroad enjoys full immunity from criminal jurisdiction and inviolability.
9. That iminunity and that inviolability protect the individual concerned against
any act of authority of another State which would hinder him or her in the
perfomance of his or her duties.
10. The Court emphasizes, however, that the immunity from jurisdiction enjoyed by
incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity
in respect of any crimes they might have committed, irrespective of their
gravity.
11. Accordingly, the immunities enjoyed under international law by an incumbent
or former Minister for Foreign Affairs do not represent a bar to criminal
prosecution in certain circumstances
12. The Court refers to circumstances where such persons are tried in their own
countries, where the State which they represent or have represented decides to
waive that immunity, where such persons no longer enjoy all of the immunities
accorded by international law in other States after ceasing to hold the office of
Minister for Foreign Affairs, and whcre such persons are subject to criminal
proceedings before certain international criminal courts, where they have
jurisdiction.
 012 KIRKPATRICK v. ENVIRONMENTAL TECTONICS (Yap)
Jan. 17, 1990 | Scalia, J. | Immunity of International Organizations
(Act of State Doctrine)
PETITIONER: W.S. Kirkpatrick & Co., Inc.
RESPONDENTS: Environmental Tectonics Corporation, International (ETC)
SUMMARY: ETC learned of an anomalous transaction on the award of the
construction of the Kaduna Air Force Base to Kirkpatrick – that Harry Carpenter
(Kirkpatrick’s Chairman), entered into an agreement with Benson Akindele (a
Nigerian citizen) wherein the latter will secure the award of the contract to the
former, so that Kirkpatrick will pay 20% commission of the contract price to
Panamanian entities controlled by Akindele, which would be given as a bribe to
Nigerian officials. ETC informed the US Attorney for the District of New Jersey,
which filed charges against Carpenter and Kirkpatrick for violation of the
Foreign Corrupt Practices Act – both pleaded GUILTY. Hence, ETC filed this
civil complaint for damages pursuant to the Anti-Roecketeering Act, etc.
Kirkpatrick filed a motion to dismiss on the ground that the action was barred by
the Act of State Doctrine (every sovereign state is bound to respect the
independence of every other sovereign state, and the courts will not sit in
judgment of another government's acts done within its own territory). The
district court treated the motion as a summary judgment and granted the motion
on the ground that it would result in embarrassment to the sovereign or constitute
interference in the conduct of foreign policy of the US. The CA reversed on the
ground that judicial inquiry into the purpose behind the act of a foreign
sovereign would not produce the unique embarrassment and interference with
the conduct of foreign affairs that may result from the judicial termination that a
foreign sovereign’s acts are invalid.
The issue is whether the Act of State Doctrine bars the instant case.
The Court ruled in the negative. For the doctrine to apply, the relief sought
would have required a court in the US to declare invalid the official act of a
foreign sovereign performed within its own territory. Neither the claim nor any
asserted defense requires a determination that Nigeria's Kaduna contract with
Kirkpatrick was, or was not, effective, but whether ETC is entitled to damages –
its legality is simply not a question to be decided in the present suit, and there is
thus no occasion to apply the rule of decision that the act of state doctrine
requires – the issue is actually whether the alleged acts occured.
DOCTRINE: The Act of State Doctrine has no application when the case has no
issue on the validity of a foreign sovereign act. The doctrine does not establish
an exception for cases and controversies that may embarrass foreign
governments, but merely requires that, in the process of deciding, the acts of
foreign sovereigns taken within their own jurisdictions shall be deemed valid.
o Exceptions: (1) Commercial transactions; (2) When the executive
branch has no objection to denying validity to the foreign sovereign act.
FACTS:
197. Environmental Tectonics Corporation (ETC) filed this complaint for
damages against Harry Carpenter (chairman of Kirkpatrick & Co.), the
company and Benson Akindele (a Nigerian citizen) pursuant to the
Racketeer Influenced and Corrupt Organizations Act, the Robinsons-
Patman Act, and the New Jersey Anti-Racketeering Act (Racketeering
means a planned/organized criminal act).
a. The complaint allged that the Republic of Nigeria was interested in
contracting for the construction and equipment of an aeromedical
center at Kaduna Air Force Base. When Carpenter learned of this,
he made arrangements with Akindele to secure the contract for
Kirkpatrick – if it was awarded thereto, Kirkpatrick would pay a
20% commission of the contract price to 2 Panamanian entities
controlled by Akindele, which would be given as a bribe to
officials of the Nigerian Government.
b. ETC was an unsuccessful bidder for the Kaduna contract.
c. ETC informed the US Attorney for the District of New Jersey, and
the latter brought charges against Carpenter and Kirkpatrick for
violations of the Foreign Corrupt Practices Act of 1977 – wherein
both pleaded guilty.
198. Kirkpatrick moved to dismiss the complaint on the ground that the action
was barred by the Act of State Doctrine.
199. After receiving a letter from the legal advisor to the Department of State as
to the application of the doctrine, the District Court treated the motion to
dismiss as one for summary judgment and granted it on the ground that the
doctrine applies if the inquiry presented for judicial determination includes
the motivation of a sovereign act which would result in embarrassment to
the sovereign or constitute interference in the conduct of foreign policy of
the US.
a. In this case, ETC had to show that: (1) Kirkpatrick intended to
wrongfully influence the decision to award the Kaduna contract by
 payment of a bribe; (2) Government of Nigeria, its officials, knew official act of a foreign sovereign.
of the offered consideration for awarding the contract to a. Neither the claim nor any asserted defense requires a determination
Kirkpatrick; (3) actual receipt of the bribe or anticipation; and (4) that Nigeria's Kaduna contract with Kirkpatrick was, or was not,
were it not for the bribe, ETC would have been awarded the effective.
contract. 235. Even assuming arguendo the truth of the receipt of the bribes in violation of
200. Court of Appeals of the Third Circuit reversed the district court’s decision Nigerian law, it still does not suffice.
and remanded the case to the district court on the ground that, according to a. Act of state issues only arise when a court must decide – that is,
the persuasive letter from the legal adviser of the department, judicial when the outcome of the case turns upon – the effect of official
inquiry into the purpose behind the act of a foreign sovereign would not action by a foreign sovereign.
produce the unique embarrassment and interference with the conduct of b. Regardless of what the court's factual findings may suggest as to
foreign affairs that may result from the judicial termination that a foreign the legality of the Kaduna contract, its legality is simply not a
sovereign’s acts are invalid. question to be decided in the present suit, and there is thus no
a. According to the CA, the department’s legal conclusions as to the occasion to apply the rule of decision that the act of state doctrine
reach of the doctrine are not controlling on the courts, but are requires – the issue is actually WHETHER THE ALLEGED
entitled to substantial respect. ACTS OCCURRED.
b. Kirkpatrick had not satisfied the burden of showing that the case 236. The letter from the legal advisor to the District Court gives sufficient
should not prosper. indication that, "in the setting of this case," the act of state doctrine poses no
bar to adjudication.
ISSUE/s: 237. Banco Nacional de Cuba v. Sabbatino – the balance shifting against
56. Whether the act of state doctrine applies in this case to bar the US court application of the doctrine, for example, if the government that committed
from entertaining the action – No, because there is no issue as to the validity the "challenged act of state" is no longer in existence. the policies
of a foreign sovereign act. underlying the act of state doctrine should be considered in deciding
whether, despite the doctrine's technical availability, it should nonetheless
RULING: CA decision AFFIRMED. Case REMANDED to the district court. not be invoked; it is something quite different to suggest that those
underlying policies are a doctrine unto themselves, justifying expansion of
RATIO: the act of state doctrine (or, as the US puts it, unspecified "related principles
232. Act of State Doctrine – every sovereign state is bound to respect the of abstention") into new and uncharted fields.
independence of every other sovereign state, and the courts will not sit in
judgment of another government's acts done within its own territory.
a. The doctrine rests upon the highest considerations of international
comity and expediency; it is a consequence of domestic separation
of powers, reflecting the strong sense of the judicial branch that its
engagement in the task of passing on the validty of foreign acts
may hinder the conduct of foreign affairs.
b. For the doctrine to apply, the relief sought would have required a
court in the US to declare invalid the official act of a foreign
sovereign performed within its own territory.
233. Exceptions to the Act of State Doctrine:
i. Commercial transactions – since neither modern international
comity nor the current position of the executive branch accorded
sovereign immunity to such acts
ii. Cases in which the executive branch has represented that it has no
objection to denying validity to the foreign sovereign act – since
then the courts would be impeding no foreign policy goals.
234. The factual predicate for application of the doctrine does not exist in this
case. Nothing in the present suit requires the court to declare invalid the
 013 United States of America vs. Guinto (RAM) adopted as part of the law of our land. While the doctrine appears to prohibit
February 26, 1990 | Cruz, J. | Officials of the State ; State Immunity only suits against the state without its consent, it is also applicable to
complaints filed against officials of the states for acts allegedly performed
CONSOLIDATED CASES by them in the discharge of their duties. Moreover, when the government
enters into a contract, it is deemed to have descended to the level of the
G.R. 76607 (US v. GUINTO) other contracting party and divested of its sovereign immunity from suit with
PETITIONER: UNITED STATES OF AMERICA, FREDERICK M. its implied consent. In the case of US, the customary law of international law on
SMOUSE AND YVONNE REEVES state immunity is expressed with more specificity in the RP-US Bases Treaty.
RESPONDENTS: . HON. ELIODORO B. GUINTO, Presiding Judge, Branch There is no question that the US, like any other state, will be deemed to have
LVII, Regional Trial Court, Angeles City, ROBERTO T. VALENCIA, impliedly waived its non-suability if it has entered into a contract in its
EMERENCIANA C. TANGLAO, AND PABLO C. DEL PILAR proprietory or private capacity (commercial acts). It is only when the contract
involves its sovereign or governmental capacity (governmental acts) that no such
G.R. 79470 (US v. RODRIGO) waiver may be implied.
PETITIONER: UNITED STATES OF AMERICA, ANTHONY LAMACHIA,
T/ SGT. USAF, WILFREDO BELSA, PETER ORASCION AND ROSE FACTS (+ judgment in each case):
CARTALLA 1. These are cases that have been consolidated because they all involve the
RESPONDENTS: HON. RODOLFO D. RODRIGO, as Presiding Judge of doctrine of state immunity. The United States of America was not
Branch 7, Regional Trial Court (BAGUIO CITY), La Trinidad, Benguet and impleaded in the case at bar but has moved to dismiss on the ground that
FABIAN GENO-VE they are in effect suits against it to which it has not consented.
2. Please note that I put the facts in each case + judgment into table form
G.R.80018 (US v. CEBALLOS) already for efficiency, but essentially the doctrine in all cases is the same.
PETITIONER: UNITED STATES OF AMERICA, TOMI J. KINGI, DARREL
D. DYE and STEVEN F. BOSTICK G.R. 76607 (US v. GUINTO)
RESPONDENTS: HON. JOSEFINA D. CEBALLOS, As Presiding Judge, Valencia, Tanglao and Del Pilar are The court finds the barbershops subject
Regional Trial Court, Branch 66, Capas, Tarlac, and LUIS BAUTISTA suing several officers of the US Air to the concessions granted by the US
Force in Clark Air Base in connection government to be commercial
G.R. 80258 (US v. VERGARA) with the bidding conducted by them for enterprises operated by private persons.
PETITIONER: UNITED STATES OF AMERICA, MAJOR GENERAL MI- contracts for barber services in the said The Smouse and Reeves cannot plead
CHAEL P. C. CARNS, AIC ERNEST E. RIVENBURGH, AIC ROBIN base, which was won by a certain Dizon. any immunity from the complaint, the
BLEVINS, SGT. NOEL A. GONZALES, SGT. THOMAS MITCHELL, SGT. Valencia, Tanglao and Del Pilar wanted contract in question being decidedly
WAYNE L. BENJAMIN, ET AL., to cancel the award to the bid winner commercial.
RESPONDENTS: HON. CONCEPCION S. ALARCON VERGARA, as because they claimed that Dizon had
Presiding Judge, Branch 62 REGIONAL TRIAL COURT, Angeles City, and included in his bid an area not included Thus, the petition is DISMISSED and
RICKY SANCHEZ, FREDDIE SANCHEZ AKA FREDDIE RIVERA, EDWIN in the invitation to bid, and subsequently, the lower court directed to proceed with
MARIANO, AKA JESSIE DOLORES SANGALANG, ET AL to conduct a rebidding. the hearing and decision of the case.
SUMMARY: These are cases that have been consolidated because they all G.R. 79470 (US v. RODRIGO)
involve the doctrine of state immunity. The United States of America was not Fabian Genove filed a complaint for The restaurant services offered at the
impleaded in the case at bar but has moved to dismiss on the ground that they are
damages against petitioners Lamachia, John Hay Station operated for profit as a
in effect suits against it to which it has not consented. The issue in these cases is
Belsa, Cartalla and Orascion for his commercial and not a government
WoN the private defendants were also immune from suit for acts done by them dismissal as cook in the US Air Force activity. La Machia, Belsa, Orascion
in the performance of their official duties. The Court held in the affirmative.
Recreation Center at Camp John Hay Air and Cartalla cannot invoke the doctrine
*See doctrine*
Station in BaguioCity. It had been of self immunity to justify the dismissal
ascertained after investigation, from the of the damage suit filed by Genove.
DOCTRINE: The rule that a State may not be sued without its consent is one testimony of Belsa, Cartalla and
of the generally accepted principles of international law that were have Orascion, that Genove had poured urine Not even the US government can claim
into the soup stock used in cooking the
vegetables served to the club customers.
Lamachia, as club manager, suspended
him and thereafter referred the case to a
board of arbitrators conformably to the
collective bargaining agreement between
the center and its employees. The board
unanimously found him guilty and
recommended his dismissal. Genove’s
reaction was to file his complaint against
the individual petitioners.
G.R.80018 (US v. CEBALLOS)
Luis Bautista, who was employed as a
barracks boy in Cano O’ Donnell, an
extension of Clark Air Base, was
arrested following a buy-bust operation
conducted by Kingi, Dye and Bostick
who are officers of the US Air Force and
special agents of the Air Force Office of
Special Investigators. On the basis of the
sworn statements made by them, an
information for violation of R.A. 6425,
otherwise known as the Dangerous
Drugs Act, was filed against Bautista in
the RTC of Tarlac. Said officers testified
against him at his trial. Bautista was
dismissed from his employment. He then
filed a complaint against Kingi, Dye and
Bostick claiming that it was because of
their acts that he was removed.
such immunity because by entering
into the employment contract with
Geneove in the discharge of its
proprietary functions, it impliedly
divested itself of its sovereign
immunity from suit.
Nevertheless, the court holds that the
complaint against La Machia, Belsa,
Orascion and Cartalla in the lower court
be dismissed. There was nothing
arbitrary about the proceedings in the
dismissal of Genove. La Machia, Belsa,
Orascion and Cartalla acted quite
properly in terminating the Genove’s
employment for his unbelievably
nauseating act of polluting the soup
stock with urine.
It was clear that Kingi, Dye and Bostick
were acting in the exercise of their
official functions when they conducted
the buy-bust operation and thereafter
testified against the complainant.
For discharging their duties as agents
of the United States, thay cannot be
directly impleaded for acts imputable
to their principal, which has not given
its consent to be sued.
The conclusion of the trial court that the
answer filed by the special counsel of
Clark Air Base was a submission of the
US government to its jurisdiction is
rejected.
Express waiver cannot be made by a
mere counsel of the government but
must be effected through a duly-enacted
statute. Neither does it come under the
implied form of consent. Thus, the
petition is granted and the civil case
filed in the lower court dismissed.
G.R. 80258 (US v. VERGARA)
A complaint for damages was filed by The contradictory factual allegations in
Sanchez, Sanchez aka Rivera, Mariano this case need a closer study of what
aka Sangalang et al (Group of actually happened. The record were too
respondents) against Carns, Rivenburgh, meager to indicate that Carns,
Blevins, Gonzales, Mitchell, Benjamin et Rivenburgh, Blevins, Gonzales,
al (The officers), for injuries sustained by Mitchell, Benjamin et al (The officers)
the plaintiffs as a result of the acts of the were really discharging their official
defendants. There is a conflict of factual duties or had actually exceeded their
allegations here. According to the group authority when the incident occurred.
of respondents, the officers beat them up,
handcuffed them and unleashed dogs on Only after the lower court shall have
them which bit them in several parts of determined in what capacity the Carns,
their bodies and caused extensive Rivenburgh, Blevins, Gonzales,
injuries to them. The officers deny this Mitchell, Benjamin et al (The officers)
and claim that the group of respondents were acting will the court determine, if
were arrested for theft and were bitten by still necessary, if the doctrine of state
the dogs because they were struggling immunity is applicable.
and resisting arrest. In a motion to
dismiss the complaint, the US and the
individually named group of respondents
argued that the suit was in effect a suit
against the US, which had not given its
consent to be sued.
ISSUE/s:
1. Whether or not the defendants were immune from suit under the RP-US
Bases Treaty for acts done by them in the performance of their official
duties –YES, because the rule that a State may not be sued without its
consent is one of the generally accepted principles of international law that
were have adopted as part of the law of our land. (However, it is important
to note #7 of Ratio regarding commercial acts v. governmental acts)
RULING: WHEREFORE, after considering all the above premises, the Court
hereby renders judgment as follows:
1. In G.R. No. 76607, the petition is DISMISSED and the respondent judge is
directed to proceed with the hearing and decision of Civil Case No. 4772.
The temporary restraining order dated December 11, 1986, is LIFTED.
2. In G.R. No. 79470, the petition is GRANTED and Civil Case No. 829-
R(298) is DISMISSED.
3. In G.R. No. 80018, the petition is GRANTED and Civil Case No. 115-C-87
is DISMISSED. The temporary restraining order dated October 14, 1987,
is made permanent.
4. In G.R. No. 80258, the petition is DISMISSED and the respondent court is
directed to proceed with the hearing and decision of Civil Case No. 4996.
 The temporary restraining order dated October 27, 1987, is LIFTED. All
without any pronouncement as to costs. SO ORDERED.
RATIO:
1. The rule that a State may not be sued without its consent is one of the
generally accepted principles of international law that were have
adopted as part of the law of our land. Even without such affirmation, we
would still be bound by the generally accepted principles of international
law under the doctrine of incorporation. Under this doctrine, as accepted by
the majority of the states, such principles are deemed incorporated in the
law of every civilized state as a condition and consequence of its
membership in the society of nations. All states are sovereign equals and
cannot assert jurisdiction over one another.
2. While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the
states for acts allegedly performed by them in the discharge of their
duties. The rule is that if the judgment against such officials will require the
state itself to perform an affirmative act to satisfy the same, the suit must be
regarded as against the state although it has not been formally impleaded.
3. When the government enters into a contract, it is deemed to have
descended to the level of the other contracting party and divested of its
sovereign immunity from suit with its implied consent.
4. Waiver is also implied when the government files a complaint, thus opening
itself to a counterclaim. The above rules are subject to qualification.
5. Express consent is effected only by the will of the legislature through the
medium of a duly enacted statute. We have held that not all contracts
entered into by the government will operate as a waiver of its non-suability;
distinction must be made between its sovereign and proprietary acts. As for
the filing of a complaint by the government, suability will result only where
the government is claiming affirmative relief from the defendant.
6. It bears stressing at this point that the aforesaid principle do not confer on
the USA a blanket immunity for all acts done by it or its agents in the
Philippines. Neither may the various petitioners claim that they are also
insulated from suit in this country merely because they have acted as agents
of the United States in the discharge of their official functions.
7. In the case of US, the customary law of international law on state immunity
is expressed with more specificity in the RP-US Bases Treaty. There is no
question that the US, like any other state, will be deemed to have impliedly
waived its non-suability if it has entered into a contract in its proprietory or
private capacity (commercial acts). It is only when the contract involves its
sovereign or governmental capacity (governmental acts) that no such waiver
may be implied.
 014 Chuidian v. Sandiganbayan (Apasan)
January 19, 2001 | Ynares-Santiago, J. | Immunities of Int’l. Organizations
PETITIONER: Vicente B. Chuidian
RESPONDENTS: Sandiganbayan (Fifth division) and the Republic of the
Philippines
SUMMARY: During the Marcos regime, Vicente Chuidian (Chuidian), as a
favored business associate of the Marcoses, was able to induce Philippine Export
and Foreign Loan Guarantee Corporation (PHILGUARANTEE), the Board of
Investment (BOI) and the Central Bank to issue a loan (US$25M) in favor of
Asian Reliability Company, Incorporated (ARCI), a corporation which is 98%
allegedly owned by Chuidian. However, while the loan proceed was represented
to be used for five inter-related projects in the Philippines, Chuidian reneged on
the approved business plan and instead invested the proceeds in corporations
operating in the US. Subsequently, ARCI defaulted in the payments of the loan
compelling PHILGUARANTEE to pay for the same. This prompted
PHILGUARANTEE to sue Chuidian before the Santa Clara County Superior
Court. But PHILGUARANTEE and Chuidian decided to enter into a
compromise agreement where it was agreed that Chuidian shall assign and
surrender title to all his companies in favor of the PH government and in return,
PHILGUARANTEE shall desist from any legal action that will make Chuidian
civilly and criminally liable. It was also agreed that instead of Chuidian
reimbursing the payments made by PHILGUARANTEE arising from Chuidian’s
default, the PH government should pay Chuidian the amount of US$5.3M. Initial
payments were made and the balance was to be paid through an irrevocable
Letter of Credit (L/C) to be issued by the PNB.
Later, with the advent of the Aquino administration, the PCGG was established
and the properties of Chuidian were among those assets that were sequestered.
Philguarantee filed a motion before the Superior Court of Santa Clara County of
seeking to vacate the compromise agreement containing the settlement between
Philguarantee and Chuidian but it was denied. Chuidian also filed an action
before the United States District Court, Central District of California, an action
against PNB seeking, among others, to compel PNB to pay the proceeds of the
L/C. PNB countered that it cannot be held liable for a breach of contract under
principles of illegality, international comity and act of state, and thus it is
excused from payment of the L/C. Philguarantee intervened in said action,
raising the same issues and arguments it had earlier raised in the action before
the Santa Clara Superior Court, alleging that PNB was excused from making
payments on the L/C since the settlement was void due to illegality, duress and
fraud. The Federal Court rendered judgment ruling in favor of PNB excusing the
said bank from making payment on the L/C, and in Chuidian’s favor by denying
intervenor Philguarantees action to set aside the compromise agreement.
The Republic of the Philippines (RP) filed before the Sandiganbayan civil cases
against Chuidian who was alleged to be in conspirary with the Marcoses. While
the case was pending, the RP filed a motion for writ of attachment against L/C
for the satisfaction of judgment which was granted by the Sandiganbayan.
Chuidian’s contention hinged on the fact that he was given a favorable judgment
by the foreign court when the latter uphold the compromise agreement between
PHILGUARANTEE and Chuidian. Issue is WoN the foreign judgment can be
the basis to claim for payment and to lift the attachment. The court held in the
negative. The court held that Chuidian’s own evidence which is the foreign
judgment merely strengthen the position of the PH government because although
it was admitted in the judgment that Chuidian got a favorable decision, it was
also stated that PNB is excused from the payment of the L/C as long as the
sequestration order remains in effect. Furthermore, the foreign judgment
recognizes the validity of the sequestration and freeze orders as an act of the
state, and therefore, if PNB would pay the L/C, then it would be illegal under the
PH laws because it is an act of defiance against a valid order from the state.
DOCTRINE: (it was not really stated in the case, however, this is just my
interpretation in relation sa topic sa syllabus – that the state may not be sued
without its consent ) Foreign judgments should not be recognized, if the action
would amount to a legal action against the State without the latter’s consent. In
this case, if the foreign judgment was to be enforced, ASSUMING that PNB was
ordered to pay the L/C, then it would amount to legal proceedings without the
State’s consent because the L/C was already sequestered in favor of the
government. Therefore, allowing the foreign judgment as a basis for the payment
to Chuidian and the lifting of the attachment would essentially amount to an
abdication of the jurisdiction of the Sandiganbayan to hear and decide the ill
gotten wealth cases lodged before it in deference to the judgment of foreign
courts.
FACTS:
1. The instant petition arises from transactions that were entered into by the
government during the Marcos administration. Petitioner Vicente B.
Chuidian was alleged to be a dummy or nominee of Ferdinand and Imelda
Marcos in several companies said to have been illegally acquired by the
Marcos spouses.
2. As a favored business associate of the Marcoses, Chuidian allegedly used
false pretenses to induce the officers of the Philippine Export and Foreign
Loan Guarantee Corporation (PHILGUARANTEE), the Board of
Investments (BOI) and the Central Bank, to facilitate the procurement
and issuance of a loan (US$25,000,000.00) guarantee in favor of the
Asian Reliability Company, Incorporated (ARCI), 98% of which was
allegedly owned by Chuidian.
a. While ARCI represented to Philguarantee that the loan proceeds
would be used to establish five inter-related projects in the
 Philippines, Chuidian reneged on the approved business plan and
instead invested the proceeds of the loan in corporations operating
in the United States, more particularly Dynetics, Incorporated and
Interlek, Incorporated.
3. After ARCI had received the proceeds of the loan guaranteed by
Philguarantee, the former defaulted in the payments thereof, compelling
Philguarantee to undertake payments for the same. Consequently, in
June 1985, Philguarantee sued Chuidian before the Santa Clara County
Superior Court, charging that in violation of the terms of the loan,
Chuidian not only defaulted in payment, but also misused the funds by
investing them in Silicon Valley corporations and using them for his
personal benefit.
4. On November 27, 1985, or three (3) months before the People Power
Revolution, Philguarantee entered into a compromise agreement with
Chuidian with the following agreements:
a. Whereby petitioner Chuidian shall assign and surrender title to all
his companies in favor of the Philippine government. In return,
Philguarantee shall absolve Chuidian from all civil and criminal
liability, and in so doing, desist from pursuing any suit against
Chuidian concerning the payments Philguarantee had made on
Chuidians defaulted loans.
b. It was further stipulated that instead of Chuidian reimbursing the
payments made by Philguarantee arising from Chuidians default,
the Philippine government shall pay Chuidian the amount of Five
Million Three Hundred Thousand Dollars (US$5,300,000.00).
5. Initial payments were made (US$700,000.00), while remaining balance
(US$4,600,000.00) was to be paid through an irrevocable Letter of
Credit (L/C) from which Chuidian would draw One Hundred Thousand
Dollars (US$100,000.00) monthly. Accordingly, the Letter of Credit was
issued for the said amount by the Philippine National Bank (PNB).
6. With the advent of the Aquino administration, the newly-established
Presidential Commission on Good Government (PCGG) exerted earnest
efforts to search and recover money, gold, properties, stocks and other
assets suspected as having been illegally acquired by the Marcoses, their
relatives and cronies.
7. Petitioner Chuidian was among those whose assets were sequestered by
the PCGG. On May 30, 1986, the PCGG issued a Sequestration Order
directing the PNB to place under its custody, for and in behalf of the PCGG,
the irrevocable L/C.
8. In the meantime, Philguarantee filed a motion before the Superior Court
of Santa Clara County of California in Civil Case Nos. 575867 and
577697 seeking to vacate the stipulated judgment containing the
settlement between Philguarantee and Chuidian on the grounds that:
a. Philguarantee was compelled by the Marcos administration to
agree to the terms of the settlement which was highly unfavorable
to Philguarantee and grossly disadvantageous to the government;
b. Chuidian blackmailed Marcos into pursuing and concluding the
settlement agreement by threatening to expose the fact that the
Marcoses made investments in Chuidians American enterprises;
and
c. the Aquino administration had ordered Philguarantee not to make
further payments on the L/C to Chuidian.
9. After considering the factual matters before it, the said court denied the
motion of Philguarantee and this was affirmed on appeal by the Appellate
District Court of the State of California.
10. After payment on the L/C was frozen by the PCGG, Chuidian filed before
the United States District Court, Central District of California, an
action against PNB seeking, among others, to compel PNB to pay the
proceeds of the L/C.
a. PNB countered that it cannot be held liable for a breach of contract
under principles of illegality, international comity and act of state,
and thus it is excused from payment of the L/C.
b. Philguarantee intervened in said action, raising the same issues and
arguments it had earlier raised in the action before the Santa Clara
Superior Court, alleging that PNB was excused from making
payments on the L/C since the settlement was void due to
illegality, duress and fraud.
11. The Federal Court rendered judgment ruling:
a. in favor of PNB excusing the said bank from making payment
on the L/C; and in Chuidians favor by denying intervenor
Philguarantees action to set aside the compromise agreement.
12. On July 30, 1987, the government filed before the Sandiganbayan Civil
Case No. 0027 against the Marcos spouses, several government officials
who served under the Marcos administration, and a number of individuals
known to be cronies of the Marcoses, including Chuidian who was
charged to be in conspiracy with the Marcoses.
13. While the case was pending, the Republic of the Philippines filed a motion
for issuance of a writ of attachment over the L/C. The Sandiganbayan issued
a Resolution ordering the issuance of a writ of attachment against L/C as
security for the satisfaction of judgment.
 14. On August 11, 1997, or almost four (4) years after the issuance of the order
of attachment, Chuidian filed a motion to lift the attachment (1ST motion).
Subsequently, on August 20, 1997, Chuidian filed a motion to require the
Republic to deposit the L/C in an interest bearing account (2ND motion).
15. Both motions were initially denied, but through an MR, the Sandiganbayan
held the following:
a. the Sandiganbayan gave due course to Chuidians plea for the
attached L/C to be deposited in an interest-bearing account, on the
ground that it will redound to the benefit of both parties.
b. The Sandiganbayan declared the national government as the
principal obligor of the L/C even though the liability remained in
the books of the PNB for accounting and monitoring purposes.
c. The Sandiganbayan, however, denied Chuidians motion for
reconsideration of the denial of his motion to lift attachment.
16. Hence this petition.
ISSUE:
57. WoN the judgment of the United States District Court brought by petitioner
Chuidian against PNB could be used as basis to lift the order of attachment
and compel PNB to pay the L/C – No, because a state may NOT be sued
without its consent. Therefore, allowing the foreign judgment as a basis for
the payment to Chuidian and the lifting of the attachment would essentially
amount to an abdication of the jurisdiction of the Sandiganbayan to hear
and decide the ill gotten wealth cases lodged before it in deference to the
judgment of foreign courts.
RULING: WHEREFORE, in view of all the foregoing, the petition is
DISMISSED. The PNB is DIRECTED to remit to the Sandiganbayan the proceeds
of Letter of Credit No. SFD-005-85 in the amount of U.S. $4.4 million within fifteen
(15) days from notice hereof, the same to be placed under special time deposit with
the Land Bank of the Philippines, for the account of Sandiganbayan in escrow for the
person or persons, natural or juridical, who shall eventually be adjudged lawfully
entitled thereto, the same to earn interest at the current legal bank rates. The principal
and its interest shall remain in said account until ordered released by the Court in
accordance with law.
2.
RATIO:
1. Chuidian cites the judgment of the United States District Court brought by
the latter against PNB to compel the latter to pay the L/C. The said Courts
judgment, while it ruled in favor of petitioner on the matter of
Philguarantees action-in-intervention to set aside the settlement
agreement, also ruled in favor of PNB, to wit:
Under Executive Order No. 1, the PCGG is vested by the Philippine
President with the power to enforce its directives and orders by contempt
proceedings. Under Executive Order No. 2, the PCGG is empowered to
freeze any, and all assets, funds and property illegally acquired by former
President Marcos or his close friends and business associates.
On March 11, 1986, PNB/Manila received an order from the PCGG
ordering PNB to freeze any further drawings on the L/C. The freeze order
has remained in effect and was followed by a sequestration order issued by
the PCGG. Subsequently, Chuidians Philippine counsel filed a series of
challenges to the freeze and sequestration orders, which challenges were
unsuccessful as the orders were found valid by the Philippine Supreme
Court. The freeze and sequestration orders are presently in effect. Thus,
under the PCGG order and Executive Orders Nos. 1 and 2,
performance by PNB would be illegal under Philippine Law. Therefore
PNB is excused from performance of the L/C agreement as long as the
freeze and sequestration orders remain in effect.
Chuidian argues that the fact that the L/C was issued pursuant to a
settlement in California, that the negotiations for which occurred in
California, and that two of the payments were made at PNB/LA, compels
the conclusion that the act of prohibiting payment of the L/C occurred in
Los Angeles. The L/C was issued in Manila, such was done at the
request of a Philippine government instrumentality for the benefit of a
Philippine citizen, the L/C was to be performed in the Philippines, all
significant events relating to the issuance and implementation of the
L/C occurred in the Philippines, the L/C agreement provided that the
L/C was to be construed according to laws of the Philippines, and the
Philippine government certainly has an interest in preventing the L/C
from being remitted in that it would be the release of funds that are
potentially illgotten gains. Accordingly, the Court finds that the PCGG
orders are acts of state that must be respected by this Court, and thus PNB is
excused from making payment on the L/C as long as the freeze and
sequestration orders remain in effect.
Chuidian’s own evidence (the foreign judgment) strengthens the
governments position that the L/C is under the jurisdiction of the
Philippine government and that the U.S. Courts recognize the authority
of the Republic to sequester and freeze said L/C. Hence, the foreign
judgments relied upon by petitioner do not constitute a bar to the
Republics action to recover whatever alleged ill-gotten wealth
petitioner may have acquired.
 015 DAYRIT v. PHIL PHARMAWEALTH (Arcenas)
March 13, 2007| Carpio Morales, J. | Immunities of International Organizations –
Doctrine of State Immunity
PETITIONERS: The Department of Health, Secretary Manuel M. Dayrit, Usec.
Ma. Margarita Galon And Usec. Antonio M. Lopez,
RESPONDENT: Phil. Pharmawealth, Inc.
SUMMARY: SOH Romualdez Jr issued AO 27, s. of 1998 providing for the
guidelines and procedures on the accreditation of government suppliers for
pharmaceutical products. This was later amended by AO 10, s. of 2000,
providing for additional guidlelines that only qualified bidders can transact
business with DOH, particularly only products accredited by the Committee
shall be allowed to be procured by the DOH. Pharmawealth submitted to DOH a
request for the inclusion of additional items in its list of accredited drug
products, including the antibiotic "Penicillin G Benzathine”, but it was not
timely accredited by the time of invitation for bids of DOH for the procurement
of 1.2 million units vials of Penicillin G Benzathine (Penicillin contract). But
Pharmawealth still participated, despite lack of accreditation of its penicillin
product from DOH. There were only two bidders: Pharmawealth and YSS
Laboratories’, in which Pharmawealth submitted the lower bid (₱82.24 per unit;
YSS - ₱95.00 per unit). However, the contract was awarded to YSS due to non-
accreditation of Pharmawealth’s penicillin products. Pharmawealth, then, filed a
complaint against SOH Dayrit (succeeded Romualdez), USec Galon and Usec
Lopez for the nullification of the award to YSS and for the same to be awarded
to Pharmawealth, and to adjudge Dayrit et al to be jointly and severally liable for
specific damages. Dayrit et al filed a motion to dismiss based on doctrine of
state immunity. RTC denied the motion to dismiss and their MR. On appeal to
CA, CA affirmed RTC and subsequently denied their MR. Hence, this instant
petition for review.
Issue before the SC is whether or not CA erred in upholding the denial of motion
to dismiss.
The SC upheld the CA’s ruling. SC held that there is merit in Pharmawealth’s
argument. While the doctrine of state immunity appears to prohibit only suits
against the state without its consent, it is also applicable to complaints filed
against officials of the state for acts allegedly performed by them in the
discharge of their duties. The rule, however, is not so all-encompassing as to be
applicable under all circumstances. The rule does not apply where the public
official is charged in his official capacity for acts that are unauthorized or
unlawful and injurious to the rights of others. Neither does it apply where the
public official is clearly being sued not in his official capacity but in his personal
capacity, although the acts complained of may have been committed while he
occupied a public position. SC noted that Dayrit et al are being sued in their
personal capacities for damages in connection with their alleged act of "illegally
abusing their official positions to make sure that Pharmawealth would not be
awarded the Benzathine contract which act was done in bad faith and with full
knowledge of the limits and breadth of their powers given by law". However, the
mere allegation that a government official is being sued in his personal capacity
does not automatically remove the same from the protection of the doctrine of
state immunity. These are matters of evidence which should be presented and
proven at the trial.
DOCTRINE: The rule that a state may not be sued without its consent, now
embodied in Section 3, Article XVI of the 1987 Constitution, is one of the
generally accepted principles of international law, which we have now adopted
as part of the law of the lan.
An action at law or suit in equity against a State officer or the director of a State
department was claiming to act for the State but, actually, violates or invades the
personal and property rights of the plaintiff, under an unconstitutional act or
under an assumption of authority which he does not have, is not a suit against
the State within the constitutional provision that the State may not be sued
without its consent. The rationale for this ruling is that the doctrine of state
immunity cannot be used as an instrument for perpetrating an injustice.
FACTS:
1. Phil. Pharmawealth, Inc. (Pharmawealth) is a domestic corporation engaged
in the business of manufacturing and supplying pharmaceutical products to
government hospitals in the Philippines
2. Secretary of Health Alberto G. Romualdez, Jr. issued Administrative
Order (A.O.) No. 27, Series of 1998, outlining the guidelines and
procedures on the accreditation of government suppliers for pharmaceutical
products.
a. A.O. No. 27 was later amended by A.O. No. 10, Series of 2000,
providing for additional guidelines for accreditation of drug
suppliers aimed at ensuring that only qualified bidders can transact
business with Department of Health (DOH).
b. Part V of A.O. No. 10 reads, in part
1. Drug Manufacturer, Drug Trader and Drug Importer
shall be allowed to apply for accreditation.
2. Accreditation shall be done by the Central Office-
Department of Health.
3. A separate accreditation is required for the drug
suppliers and for their specific products.
xxxx
12. Only products accredited by the Committee shall be
allowed to be procured by the DOH and all other
entities under its jurisdiction.
3. Pharmawealth submitted to DOH a request for the inclusion of additional
items in its list of accredited drug products, including the antibiotic
"Penicillin G Benzathine."
a. Based on the schedule provided by DOH, it appears that
processing of and release of the result of Pharmawealth’s request
were due on September 2000, the last month of the quarter
following the date of its filing.
4. Sometime in September 2000, DOH, through Antonio M. Lopez,
chairperson of the pre-qualifications, bids and awards committee, issued an
Invitation for Bids for the procurement of 1.2 million units vials of
Penicillin G Benzathine (Penicillin contract).
a. Despite the lack of response from DOH regarding Pharmawealth’s
request for inclusion of additional items in its list of accredited
products, Pharmawealth submitted its bid for the Penicillin
contract
5. When the bids were opened only two companies participated:
Pharmawealth and Cathay/YSS Laboratories’ (YSS)
a. Pharmawealth submitted the lower bid: ₱82.24 per unit,
b. YSS: ₱95.00 per unit
6. In view, however, of the non-accreditation of Pharmawealth’s Penicillin G
Benzathine product, the contract was awarded to YSS.
7. Pharmawealth thus filed a complaint for injunction, mandamus and
damages with prayer for the issuance of a writ of preliminary injunction
and/or temporary restraining order with the RTC of Pasig City
a. Pharmawealth is praying to"nullify the award of the Penicillin
contract to YSS and for DOH, defendant Romualdez, Galon and
Lopez to declare Pharmawealth as the lowest complying
responsible bidder for the Benzathine contract, and that they
accordingly award the same to Pharmawealth" and "adjudge
Romualdez, Galon and Lopez liable, jointly and severally to
Pharmawealth, for [the therein specified damages]."
8. COMMENT: DOH, Secretary Alberto Romualdez, Jr. who was later
succeeded by Secretary Manuel M. Dayrit, and USECs Margarita Galon
and Antonio Lopez (Dayrit et al) argued for the dismissal of the complaint
for lack of merit due to express reservation made by DOH to accept or
reject any or all bids without incurring liability to the bidders, positing that
government agencies have such full discretion.
a. subsequently filed a Manifestation and Motion (motion to dismiss)
praying for the outright dismissal of the complaint based on the
doctrine of state immunity.
b. Additionally, they alleged that Pharmawealth was not duly
authorized by its board of directors to file the complaint.
9. Pharmawealth filed its comment/opposition contending, that the doctrine of
state immunity is not applicable considering that Dayrit et al are being sued
both in their official and personal capacities, hence, they would be liable
for damages, not the state
10. RTC RULING: denied Dayrit et al’s motion to dismiss and MR was also
denied
11. CA RULING: the petition for certiorari which maintained the suit is against
the state but CA affirmed the trial court’s Order, also denied Dayrit et al’s
MR.
12. Hence, the instant petition for review
ISSUE/s
1. Whether the CA erred in upholding the denial of Dayrit et al’s motion to
dismiss – NO. CA is correct in affirming denial of MTD because the
doctrine of state immunity cannot be used as an instrument for perpetrating
an injustice (acts against Pharmwealth were done in bad faith)
RULING: WHEREFORE, the petition is DENIED. The assailed Decision dated
May 12, 2005 and Resolution dated August 9, 2005 issued by the Court of Appeals
are AFFIRMED.SO ORDERED.
RATIO:
Doctrine of State Immunity
1. The rule that a state may not be sued without its consent, now
embodied in Section 3, Article XVI of the 1987 Constitution, is one of
the generally accepted principles of international law, which we have
now adopted as part of the law of the land.
2. The suability of a government official depends on whether the official
concerned was acting within his official or jurisdictional capacity, and
whether the acts done in the performance of official functions will result in
a charge or financial liability against the government.
a. The Constitution itself assures the availability of judicial review of
acts alleged to have been tainted with grave abuse of discretion,
and it is the official concerned who should be impleaded as the
proper party as defendant or respondent.
b. In its complaint, Pharmawealth sufficiently imputes grave abuse of
discretion against Dayrit et al in their official capacity.
c. Moreover, part of the reliefs prayed for by Pharmawealth is the
enjoinment of the implementation, nullification of the award to
YSS, the grant of which may not be enforced against individual
Dayrit et al and their successors except in their official capacities
as officials of the DOH.
DOH cannot avail of state immunity
3. As regards DOH, the defense of immunity from suit will not avail despite
its being an unincorporated agency of the government, for the only
causes of action directed against it are preliminary injunction and
mandamus.
a. Under Section 1, Rule 58 of the Rules of Court, preliminary
injunction may be directed against a party or a court, agency or a
person.
 b. Moreover, the defense of state immunity from suit does not apply a. Neither, upon the other hand, does the mere invocation of official
in causes of action which do not seek to impose a charge or character suffice to insulate such official from suability and
financial liability against the State. liability for an act committed without or in excess of his or her
authority. These are matters of evidence which should be
Doctrine of state immunity cannot be a defense to perpetrate unauthorized acts presented and proven at the trial.
injurious to rights of the private individual
4. While the doctrine of state immunity appears to prohibit only suits against
the state without its consent, it is also applicable to complaints filed against
officials of the state for acts allegedly performed by them in the discharge
of their duties.
a. The suit is regarded as one against the state where satisfaction of
the judgment against the officials will require the state itself to
perform a positive act, such as the appropriation of the amount
necessary to pay the damages awarded against them.27
5. The rule, however, is not so all-encompassing as to be applicable under
all circumstances.
a. Shauf v. Court of Appeals
i. It is a different matter where the public official is made to
account in his capacity for acts contrary to law and
injurious to the rights of plaintiff.
ii. An action at law or suit in equity against a State officer or
the director of a State department was claiming to act for
the State but, actually, violates or invades the personal
and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority
which he does not have, is not a suit against the
State within the constitutional provision that the State
may not be sued without its consent.’ The rationale for
this ruling is that the doctrine of state immunity cannot be
used as an instrument for perpetrating an injustice.
6. Hence, the rule does not apply where the public official is charged in his
official capacity for acts that are unauthorized or unlawful and
injurious to the rights of others. Neither does it apply where the public
official is clearly being sued not in his official capacity but in his
personal capacity, although the acts complained of may have been
committed while he occupied a public position
7. SC held that there is merit in Pharmawealth’s argument
a. Dayrit et al are being sued in their personal capacities for damages
in connection with their alleged act of "illegal[ly] abus[ing] their
official positions to make sure that Pharmawealth would not be
awarded the Benzathine contract [which act was] done in bad
faith and with full knowledge of the limits and breadth of their
powers given by law"
8. NOTE HOWEVER that the mere allegation that a government official
is being sued in his personal capacity does not automatically remove the
same from the protection of the doctrine of state immunity.
 016 Professional Video v. TESDA (Bacquel)
June 26, 2009 | Brion, J. | Immunity of State
PETITIONER: Professional Video
RESPONDENTS: TESDA
SUMMARY: PROVI entered into an agreement with TESDA which sprang
from a failed public bidding conducted by the latter in which the parties agreed
that PROVI will provide goods and services in relation to the printing and
encoding of PVC cards. During the performance of the contract, PROVI alleged
that TESDA had an outstanding balance of ~P35M, which prompted the former
to file a collection case with prayer of attachment. TESDA countered that
attachment should not issue since garnishment involved public funds. RTC
denied, CA reversed. The issue is whether attachment and the claim may
prosper. The SC held in the negative, ruling that TESDA is acting in its
governmental capacity, and the mere fact that it will sell the PVC cards to its
trainees does not amount to an action of a proprietary character since it is
implied from the law creating TESDA that it has the power to identify its
trainees. The Court further held that even assuming that TESDA is acting in a
proprietary capacity, the funds for the collection suit may not be attached since it
is in the character of public funds.
DOCTRINE: A continued adherence to the doctrine of non-suability is not to be
deplored for as against the inconvenience that may be caused private parties, the
loss of governmental efficiency and the obstacle to the performance of its
multifarious functions are far greater if such a fundamental principle were
abandoned and the availability of judicial remedy were not thus restricted. With
the well known propensity on the part of our people to go to court, at the least
provocation, the loss of time and energy required to defend against law suits, in
the absence of such a basic principle that constitutes such an effective obstacle,
could very well be imagined.
FACTS:
201. PROVI is an entity engaged in the sale of high technology equipment,
information technology products and broadcast devices, including the
supply of plastic card printing and security facilities.
202. TESDA is an instrumentality of the government established under Republic
Act (R.A.) No. 7796 (the TESDA Act of 1994) and attached to the
Department of Labor and Employment (DOLE) to develop and establish a
national system of skills standardization, testing, and certification in the
country.
203. To fulfill this mandate, it sought to issue security-printed certification
and/or identification polyvinyl (PVC) cards to trainees who have passed the
certification process.
204. TESDAs Pre-Qualification Bids Award Committee (PBAC) conducted two
(2) public biddings on June 25, 1999 and July 22, 1999 for the printing and
encoding of PVC cards.
205. A failure of bidding resulted in both instances since only two (2) bidders
PROVI and Sirex Phils. Corp. submitted proposals.
206. Due to the failed bidding, the PBAC recommended that TESDA enter into a
negotiated contract with PROVI.
207. On December 29, 1999, TESDA and PROVI signed and executed their
Contract Agreement Project: PVC ID Card Issuance (the Contract
Agreement) for the provision of goods and services in the printing and
encoding of PVC cards.
a. Under this Contract Agreement, PROVI was to provide TESDA
with the system and equipment compliant with the specifications
defined in the Technical Proposal. In return, TESDA would pay
PROVI the amount of Thirty-Nine Million Four Hundred and
Seventy-Five Thousand Pesos (P39,475,000) within fifteen (15)
days after TESDAs acceptance of the contracted goods and
services.
208. PROVI alleged that out of TESDAs liability of P39,475,000.00, TESDA
paid PROVI only P3,739,500.00, leaving an outstanding balance of
P35,735,500.00, as evidenced by PROVIs Statement of Account. Despite
the two demand letters dated March 8 and April 27, 2001 that PROVI sent
TESDA, the outstanding balance remained unpaid.
209. PROVI filed with the RTC a complaint for sum of money with damages
against TESDA. PROVI additionally prayed for the issuance of a writ of
preliminary attachment/garnishment against TESDA.
210. TESDA responded on July 24, 2001 by filing a Motion to Discharge/Quash
the Writ of Attachment, arguing mainly that public funds cannot be the
subject of garnishment.
211. The RTC denied TESDAs motion, and subsequently ordered the manager of
the Land Bank of the Philippines to produce TESDAs bank statement for
the garnishment of the covered amount.
212. Faced with these rulings, TESDA filed a Petition for Certiorari with the CA
to question the RTC orders, imputing grave abuse of discretion amounting
to lack or excess of jurisdiction on the trial court for issuing a writ of
preliminary attachment against TESDAs public funds.
213. CA reversed the RTC.
ISSUE/s:
58. Whether the writ of attachment against TESDA and its funds, to cover
PROVIs claim against TESDA, is valid. NO – TESDA, an instrumentality
of the State, cannot be sued in its sovereign capacity sans its consent, and
the attachment will not lie since funds are of a public character.
RULING: Petition is DENIED.
RATIO:
As regards the suability of TESDA
238. The rule that a state may not be sued without its consent is embodied in
Section 3, Article XVI of the 1987 Constitution and has been an established
principle that antedates this Constitution. It is as well a universally
recognized principle of international law that exempts a state and its organs
from the jurisdiction of another state. The principle is based on the very
essence of sovereignty, and on the practical ground that there can be no
legal right as against the authority that makes the law on which the right
depends. It also rests on reasons of public policy that public service would
be hindered, and the public endangered, if the sovereign authority could be
subjected to law suits at the instance of every citizen and, consequently,
controlled in the uses and dispositions of the means required for the proper
administration of the government.
239. The proscribed suit that the state immunity principle covers takes on various
forms, namely: a suit against the Republic by name; a suit against an
unincorporated government agency; a suit against a government agency
covered by a charter with respect to the agencys performance of
governmental functions; and a suit that on its face is against a government
officer, but where the ultimate liability will fall on the government. In the
present case, the writ of attachment was issued against a government
agency covered by its own charter. As discussed above, TESDA performs
governmental functions, and the issuance of certifications is a task within its
function of developing and establishing a system of skills standardization,
testing, and certification in the country. From the perspective of this
function, the core reason for the existence of state immunity applies i.e., the
public policy reason that the performance of governmental function cannot
be hindered or delayed by suits, nor can these suits control the use and
disposition of the means for the performance of governmental functions.
240. In Providence Washington Insurance Co. v. Republic of the
Philippines,22we said: A continued adherence to the doctrine of non-
suability is not to be deplored for as against the inconvenience that may be
caused private parties, the loss of governmental efficiency and the obstacle
to the performance of its multifarious functions are far greater if such a
fundamental principle were abandoned and the availability of judicial
remedy were not thus restricted. With the well known propensity on the part
of our people to go to court, at the least provocation, the loss of time and
energy required to defend against law suits, in the absence of such a basic
principle that constitutes such an effective obstacle, could very well be
imagined.
241. PROVI argues that TESDA can be sued because it has effectively waived
its immunity when it entered into a contract with PROVI for a commercial
purpose. According to PROVI, since the purpose of its contract with
TESDA is to provide identification PVC cards with security seal which
TESDA will thereafter sell to TESDA trainees, TESDA thereby engages in
commercial transactions not incidental to its governmental functions. This
argument has NO MERIT.
242. As the appellate court found, the PVC cards purchased by TESDA from
PROVI are meant to properly identify the trainees who passed TESDAs
National Skills Certification Program the program that immediately serves
TESDAs mandated function of developing and establishing a national
system of skills standardization, testing, and certification in the country.
Aside from the express mention of this function in R.A. No. 7796, the
details of this function are provided under DOLE Administrative Order No.
157, S. 1992, as supplemented by Department Order Nos. 3 thru 3-F, S.
1994 and Department Order No. 13, S. 1994.
243. That TESDA sells the PVC cards to its trainees for a fee does not
characterize the transaction as industrial or business; the sale, expressly
authorized by the TESDA Act,[35] cannot be considered separately from
TESDAs general governmental functions, as they are undertaken in the
discharge of these functions. Along this line of reasoning, we held in Mobil
Philippines v. Customs Arrastre Services: Now, the fact that a non-
corporate government entity performs a function proprietary in nature does
not necessarily result in its being suable. If said non-governmental function
is undertaken as an incident to its governmental function, there is no waiver
thereby of the sovereign immunity from suit extended to such government
entity.
As regards the writ of attachment
244. Even assuming that TESDA entered into a proprietary contract with PROVI
and thereby gave its implied consent to be sued, TESDAs funds are still
public in nature and, thus, cannot be the valid subject of a writ of
garnishment or attachment. Under Section 33 of the TESDA Act, the
TESDA budget for the implementation of the Act shall be included in the
annual General Appropriation Act; hence, TESDA funds, being sourced
from the Treasury, are moneys belonging to the government, or any of its
departments, in the hands of public officials.
 017 ACTI OVERSEAS CORPORATION v ECHIN (BALISONG)
23 Nov. 2005 | Austria-Martinez, J. | Supervening events
PETITIONER: ATCI Overseas Corporation, Amalia G. Ikdal, and Ministry of
Public Health-Kuwait
RESPONDENTS: Ma. Josefina Echin
SUMMARY: Josefina was hired by ACTI on behalf of the Minsitry of Public Health
of Kuwait as medical technologist under a two-year contract. Josefina was put under
probation for one year following Kuwait law. Before the end of the one-year period,
Josefina was terminated. She returned to the Philippines and filed a, illegal dismissal
case. The LA, NLRC, and CA held that ACTI and its offier, Ikdal is liable for
illegally dismissing Josefina. Hence this petition. The issues are: (a) Whether ACTI
can plead the immunity of the Ministry to escape liability, and (b) Whether ACTI
can invoke the application of Kuwaiti law as provided in the MOA. The Court voted
in the negative on both counts. First, the obligations covenanted in the recruitment
agreenet entered into by and between the local agent and its foreign principal are not
coterminous with the term of such agreement. The imposition of joint and solidary
liability is in line with the policy of the state to protect and alleviate the plight of the
working class. Second, did not submit a copy of the pertinent Kuwaiti labor laws
duly authenticated and translated by Embassy officials thereat, as required under the
Rules. The party invoking the application of a foreign law has the burden of proving
the law, under the doctrine of processual presumption. Hence, Philippine laws are
applied in the case.
DOCTRINE: The foreign law is treated as a question of fact to be properly pleaded
and proved as the judge or LA cannot take judicial notice of a foreign law. Where a
foreign law is not pleaded, or even if not pleaded, is not proven, the presumption is
that the foreign law is the same as ours
FACTS:
214. Josefina was hired by ATCI Overseas Corporation (ATCI) on behalf of its
principal, the Ministry of Public Health of Kuwait (Ministry), for the
position of medical technologist under a two-year contract, denominated as
Memorandum of Agreement (MOA), with a monthly salary of US$1,200.
Under the MOA, Josefina was to undergo a one year probationary period.
She was deployed on Feb. 17, 2000, but was terminated from employment
on Feb. 11, 2001, she not having allegedly passed the probationary period.
She returned to the Philippines, shouldering her own air fare.
215. She filed a case for illegal dismissal against ATCI as the local recruitment
agency, represented by its officer, Amalia Ikdal (Ikdal), and the Ministry as
the foeign principal. The Labor Arbiter (LA) ruled in Josefina’s favor,
saying that ATCI and the Ministry neither showed that there was just casue
to warrant Josefina’s dismissal nor that she failed to qualify as a regular
employee. The LA ordered ATCI, Ikdal, and the Ministry to pay Josefina
US$3,600. The NLRC affirmed the LA, and denied the subsequent MR.
216. The case was brought to the CA for review. ATCI was contending that the
Ministry, being a foreign government agency, is immune from suit, as such,
the immunity extended to them; that Josefina was validly dismissed for her
failure to meet the performance rating within the one-year period as
required under Kuwait’s Civil Service Laws; and, that Ikdal should not be
liable as an officer of ATCI. The CA affirmed the NLRC and LA opining
that under the law, a private employment agency shall assume all
responsibilitie for the implementation of the contract of employment of an
overseas worker, hence, it can be sued jointly and severally with the foreign
principal for any violation of the recruitment agreement or contract of
employment. Further, the CA held that under the Migrant and Overseas
Filipinos’ Act of 1995, corporate officers, directors, and partners of
recruitment agencies may themselves be jointly and solidarily liable with
the recruitment agency for money claims and damages awarded to overseas
workers. ATCI’s MR was denied. Hence this petition.
ISSUE/s:
59. Whether ACTI can plead the immunity of the Ministry to escape its own
liability. NO — The obligations covenanted in the recruitment agreement
entered into by and between the local agent and tits foreign principal are not
coterminous with the term of such agreement.
60. Whether ACTI can invoke the application of Kuwait law. NO — The party
invoking the application of a foreign law has the burden of proving the law
RULING: Petition is DENIED. CA, NLRC, and LA Decisions are AFFIRMED.
RATIO:
Liabilities under the contract
245. ATCI cannot evade responsibility for the money claims of OFWs which
it deploys abroad by the mere expediency of claiming that its foreign
principal is a government agency clothed with immunity from suit, or
that such foreign principla’s liability must first be established before it,
as agent, can be held jointly and severally liable. R.A. No. 8042 precisely
affords the OFWs with a recourse and assures them of immediate and
sufficient payment of what is due them. The obligations covenanted in the
recruitment agreenet entered into by and between the local agent and its
foreign principal are not coterminous with the term of such agreement.
 246. The imposition of joint and solidary liability is in line with the policy of the
state to protect and alleviate the plight of the working class. Respecting
Okdal’s joint and solidary liability as a corporate officer, the same is in
order too, following the express provision of R.A. No. 8042.

Invocation of foreign law

247. The MOA stipulates that Kuwaiti laws shall apply in this case.

248. The party invoking the application of a foreign law has the burden of
proving the law, under the doctrine of processual presumption. The foreign
law is treated as a question of fact to be properly pleaded and proved as the
judge or LA cannot take judicial notice of a foreign law. Where a foreign
law is not pleaded, or even if not pleaded, is not proven, the presumption is
that the foreign law is the same as ours.

249. ACTI submitted the MOA, a translated copy of the termination letter, a
translated copy of the certificate of termination, Josefina’s letter of
reconsideration. It did not submit a copy of the pertinent Kuwaiti labor laws
duly authenticated and translated by Embassy officials thereat, as required
under the Rules, what ACTI submitted were mere certifications attesting
only to the correctness of the translations of the MOA and the termination
letter which does not prove at all that Kuwaiti laws, Josefina was validly
terminated.
 018 GUNIGINDO v. SANDIGANBAYAN (Buenaventura)
August 14, 2007 | Tinga, J. | Jurisdiction
PETITIONER: PCGG and Magtanggol C. Gunigundo (as Chairman)
RESPONDENTS: Sandiganbayan
SUMMARY: The OSG asked help from the Government of Switzerland to
investigate the illgotten wealth of the Marcoses, in lie with this Switzerland freezed
some accounts that were provided by the OSG in a list. Officeco was in that list and
they now question the propriety of their accounts being frozen. They went to the
Sandiganbayan and prayed that the PCGG to advise the Swiss government to
unfreeze their accounts. PCGG filed a motion to dismiss on 4 grounds but it was
dismissed by the Sandiganbayan.
The issues are WoN the Sandiganbayan erred in not dismissing Civil Case No. 0164
on the grounds of:
(1) res judicata
SC held that res judicata does not apply since the subject matter and the interest of
the parties are not identical. The Swiss are interested only in the propriety of giving
legal assistance to the Philippines, and the PCGG is interested in resolving issues
regarding ill-gotten wealth wherever it may be located.
(2) lack of jurisdiction on account of the act of state doctrine
SC held that this doctrine would not apply because the Sandiganbayan will not
examine and review the freeze orders of the concerned Swiss officials. They will
only examine the position of PCGG in not advising the Swiss officials to unfreeze
the accounts of Officeco
(3) failure to exhaust administrative remedies
SC held that the administrative remedies are only available the freeze orders made in
the Philippines and not to those issued by other countries.
(4) lack of cause of action
SC held that there is a cause of action because the allegations presented need to be
backed by evidence. (see ratio no. 6 under cause of action)
DOCTRINE:
Every sovereign state is bound to respect the independence of every other state, and
the courts of one country will not sit in judgment on the acts of the government of
another, done within its territory. Redress of grievances by reason of such acts must
be obtained through the means open to be availed of by sovereign powers as between
themselves.
FACTS:
1. On 7 April 1986, in connection with criminal proceedings initiated in the
Philippines to locate, sequester and seek restitution of alleged ill-gotten
wealth amassed by the Marcoses and other accused from the Philippine
Government, the Office of the Solicitor General (OSG) wrote the Federal
Office for Police Matters in Berne, Switzerland, requesting assistance for
the latter office to: (a) ascertain and provide the OSG with information as to
where the ill-gotten fortune of the Marcoses and other accused are located,
the names of the depositors and the banks and the amounts involved; and
(b) take necessary precautionary measures, such as sequestration, to freeze
the assets in order to preserve their existing value and prevent any further
transfer thereof (herein referred to as the IMAC request).
2. On 29 May 1986, the Office of the District Attorney in Zurich, pursuant to
the OSGs request, issued an Order directing the Swiss Banks in Zurich to
freeze the accounts of the accused in PCGG I.S. No. 1 and in the List of
Companies and Foundations. In compliance with said Order, Bankers Trust
A.G. (BTAG) of Zurich froze the accounts of Officeco Holdings, N.V.
(Officeco).
3. Officeco appealed the Order of the District Attorney to the Attorney
General of the Canton of Zurich. The Attorney General affirmed the Order
of the District Attorney. Officeco further appealed to the Swiss Federal
Court which likewise dismissed the appeal on 31 May 1989.
4. Thereafter, in late 1992, Officeco made representations with the OSG and
the PCGG for them to officially advise the Swiss Federal Office for Police
Matters to unfreeze Officecos assets. The PCGG required Officeco to
present countervailing evidence to support its request.
5. Instead of complying with the PCGG requirement for it to submit
countervailing evidence, on 12 September 1994, Officeco filed
the complaint in the Sandiganbayan. The complaint prayed for the PCGG
and the OSG to officially advise the Swiss government to exclude from the
freeze or sequestration order the account of Officeco with BTAG and to
unconditionally release the said account to Officeco.
6. The OSG filed a joint answer. The PCGG itself filed a motion to dismiss
which was denied by the Sandiganbayan
ISSUES:
WoN the Sandiganbayan erred in not dismissing Civil Case No. 0164 on the grounds
of:
(1) res judicata – NO. The subject matter and the parties are not identical.
(2) lack of jurisdiction on account of the act of state doctrine – NO. The
Sandiganbayan will not examine and review the freeze orders of the concerned Swiss
officials.
(3) failure to exhaust administrative remedies – NO. The administrartive remedies
are only available the freeze orders made in the Philippines
(4) lack of cause of action – NO. There is a cause of actions, because the allegations
presented need to be backed by evidence.
RULING: WHEREFORE, premises considered, the instant petition is
DISMISSED. No pronouncement as to costs. SO ORDERED.
RATIO:
Nevertheless, the petition is bereft of merit. We find that the Sandiganbayan did not
act with grave abuse of discretion in denying petitioners motion to dismiss.
Res judicata
1. Res judicata means a matter adjudged, a thing judicially acted upon or
decided; a thing or matter settled by judgment. The doctrine of res
judicata provides that a final judgment on the merits rendered by a court of
competent jurisdiction is conclusive as to the rights of the parties and their
privies and constitutes an absolute bar to subsequent actions involving the
same claim, demand, or cause of action.
2. For the preclusive effect of res judicata to be enforced, the following
requisites must obtain: (1) The former judgment or order must be final;
(2) It must be a judgment or order on the merits, that is, it was rendered
after a consideration of the evidence or stipulations submitted by the parties
at the trial of the case; (3) It must have been rendered by a court having
jurisdiction over the subject matter and the parties; and (4) There must be,
between the first and second actions, identity of parties, of subject matter
and of cause of action. This requisite is satisfied if the two actions are
substantially between the same parties.
3. While the first three elements above are present in this case, we rule that the
fourth element is absent. Hence, res judicata does not apply to prevent the
Sandiganbayan from proceeding with the case
4. Absolute identity of parties is not a condition sine qua non for res
judicata to apply, a shared identity of interest being sufficient to invoke the
coverage of the principle. We fail to see how petitioners can even claim an
interest identical to that of the courts of Switzerland. Petitioners interest is
to recover ill-gotten wealth, wherever the same may be located. The
interest of the Swiss court is only to settle the issues raised before it
which include the propriety of the legal assistance extended by the Swiss
authorities to the Philippine government.
5. The subject matter in the Swiss Federal Court was the ruling on temporary
measures (freezing of accounts) and of taking of evidence (gathering bank
information). The subject matter before the Swiss courts was the propriety
of the legal assistance extended to the Philippine government. The issue
in this case is whether the PCGG may be compelled to officially advise the
Swiss government to exclude or drop from the freeze or sequestration order
the account of Officeco with BTAG. The subject matter in this case is the
propriety of PCGGs stance regarding Officecos account with BTAG.
6. A cause of action is an act or omission of one party in violation of the legal
right of the other. Causes of action are identical when there is an identity in
the facts essential to the maintenance of the two actions, or where the same
evidence will sustain both actions. Even if the Sandiganbayan finds for
Officeco, the same will not automatically result in the lifting of the
questioned freeze orders. It will merely serve as a basis for requiring the
PCGG (through the OSG) to make the appropriate representations with the
Swiss government agencies concerned.
Act of State Doctrine
1. Every sovereign state is bound to respect the independence of
every other state, and the courts of one country will not sit in
judgment on the acts of the government of another, done within its
territory. Redress of grievances by reason of such acts must be
obtained through the means open to be availed of by sovereign
powers as between themselves.
2. The act of state doctrine is one of the methods by which States prevent their
national courts from deciding disputes which relate to the internal affairs of
another State, the other two being immunity and non-justiciability. It is an
avoidance technique that is directly related to a States obligation to respect
the independence and equality of other States by not requiring them to
submit to adjudication in a national court or to settlement of their disputes
without their consent. It requires the forum court to exercise restraint in the
adjudication of disputes relating to legislative or other governmental acts
which a foreign State has performed within its territorial limits.
3. The parameters of the use of the act of state doctrine were clarified in Banco
Nacional de Cuba v. Sabbatino. There, the U.S. Supreme Court held that
international law does not require the application of this doctrine nor
does it forbid the application of the rule even if it is claimed that the act
of state in question violated international law.
4. Even assuming that international law requires the application of the act of
state doctrine, it bears stressing that the Sandiganbayan will not examine
and review the freeze orders of the concerned Swiss officials. The
Sandiganbayan will only review and examine the propriety of
maintaining PCGGs position with respect to Officecos accounts with
BTAG. Everything considered, the act of state doctrine finds no application
in this case and petitioners resort to it is utterly mislaid.
Exhaustion of Administrative Remedies
Petitioners advert to Officecos failure to exhaust the administrative
remedies provided in Secs. 5 and 6 of the PCGG Rules and Regulations
Implementing Executive Orders No. 1 and No. 2. However, a reading of said account with the BTAG from the freeze order remain unacted upon despite
provisions shows that they refer only to sequestration orders, freeze orders and hold the mandate in Section 5(a) of Republic Act No. 6713.
orders issued by the PCGG in the Philippines. They cannot be made to apply to the
freeze orders involved in this case which were issued by the government of 7. The truth of the above allegations, which must be deemed hypothetically
another country. admitted for the purpose of considering the motion to dismiss, may properly
be determined only if the case is allowed to proceed, such that if they are
found to be supported by preponderance of evidence, adverse findings may
Complaint States a Cause of Action properly be made against PCGG and the corresponding reliefs granted in
favor of Officeco.
1. While the stated issue is whether mandamus lies, the real crux of the matter
is whether Officecos complaint before the Sandiganbayan states a cause of
action. We uphold the sufficiency of the complaint.
2. It may be recalled that Officeco had alleged that it had sent several letters to
the PCGG and the OSG for these bodies to advise the Swiss authorities to
drop or exclude Officecos account with BTAG from the freeze or
sequestration, but no formal response was received by petitioners on these
letters. Copies of at least four (4) of these letters were in fact attached as
annexes to the complaint.
3. Section 5(a) of Republic Act No. 6713, or the Code of Conduct and Ethical
Standards for Public Officials and Employees, states:

4. Section 5. Duties of Public Officials and Employees. (a) Act promptly on

letters and requests. ― All public officials and employees shall, within
fifteen (15) working days from receipt thereof, respond to letters, telegrams
or other means of communications sent by the public. The reply must
contain the action taken on the request.

5. Since neither the PCGG nor the OSG replied to the requests of Officeco
within fifteen (15) days as required by law, such inaction is equivalent to a
denial of these requests. As such, no other recourse was left except for
judicial relief. The appreciation of the allegations in the complaint from this
standpoint allows us to see how the cause of action precisely materialized.

6. The following allegations culled from Officecos complaint in the

Sandiganbayan would, if proven, entitle Officeco to the main reliefs sought
in its complaint in view of petitioners refusal to exclude Officecos account
with BTAG in the list of ill-gotten wealth, to wit: (1) The freeze order has
been in effect for eleven (11) years, since 1986, without any judicial action
instituted by the PCGG and the OSG against Officeco; (2) The PCGG and
the OSG have no document or proof that the account of Officeco with
BTAG belongs to the Marcoses nor their cronies. Information on this matter
was even requested by the OSG from the PCGG and the latter from Swiss
authorities who, up to the present, have not responded positively on the
request; and (3) Requests by Officeco to the PCGG and OSG to make
representations with the Swiss authorities for the latter to release Officecos
019 U.S. DIPLOMATIC AND CONSULAR STAFF IN TEHRAN (U.S.
v. IRAN) (Callueng)
May 24, 1980 | N/A, J. | Immunities of International Organizations
PETITIONER: United States
RESPONDENTS: Iran
SUMMARY: On November 4, 1979, Iranian students seized the US Embassy in
Tehran and a number of consulates in outlying cities. The Iranian authorities
failed to protect the Embassy and later appeared to adopt the students’ actions.
Over 50 US nationals (mostly diplomatic and consular staff) were held for 444
days. The ICJ had indicated provisional measures against Iran (ICJ Rep 1979 7),
and in this case the US sought a declaration, inter alia, that Iran had violated the
two Vienna Conventions, and calling for the release of the hostages and the
vacation of the Embassy and consulates. ISSUE: WoN the initial attack by the
students could be attributed to the Iranian Government and whether Iran was
therefore in violation of its international obligations. YES, because for the
FIRST PHASE of events, the Iranian authorities: were fully aware of their
obligations under the conventions in force to take appropriate steps to protect the
premises of the United States Embassy and its diplomatic and consular staff
from any attack and from any infringement of their inviolability, and to ensure
the security of such other persons as might be present on the said premises; were
fully aware, as a result of the appeals for help made by the United States
Embassy, of the urgent need for action on their part;
had the means at their
disposal to perform their obligations; completely failed to comply with these
obligations. were equally aware of their obligations to protect the United States
Consulates at Tabriz and Shiraz, and of the need for action on their part, and
similarly failed to use the means which were at their disposal to comply with
their obligations. For the SECOND PHASE, the occupation having taken place
and the diplomatic and consular personnel of the United States’ mission having
been taken hostages, the action required of the Iranian Government by the
Vienna Conventions and by general international law manifest its plain duty was
at once to make every effort, and to take every appropriate step, to bring these
flagrant infringements of the inviolability of the premises, archives and
diplomatic and consular staff of the United States Embassy to a speedy end, to
restore the Consulates at Tabriz and Shiraz to United States control, and in
general to re-establish the status quo and to offer reparation for the damage.
The
Iranian authorities’ decision to continue the subjection of the premises of the
United States Embassy to occupation by militants and of the Embassy staff to
detention as hostages, clearly gave rise to repeated and multiple breaches of the
applicable provisions of the Vienna Conventions even more serious than those
which arose from their failure to take any steps to prevent the attacks on the
inviolability of these premises and staff.
The Iranian Government did not break
off diplomatic relations with the United States; and in response to a question put
to him by a Member of the Court, the United States Agent informed the Court
that at no time before the events of November 4, 1979 had the Iranian
Government declared, or indicated any intention to declare, any member of the
United States diplomatic or consular staff in Tehran persona non grata. The
Iranian Government did not, therefore, employ the remedies placed at its
disposal by diplomatic law specifically for dealing with activities of the kind of
which it now complains. Instead, it allowed a group of militants to attack and
occupy the United States Embassy by force, and to seize the diplomatic and
consular staff as hostages; instead, it has endorsed that action of those militants
and has deliberately maintained their occupation of the Embassy and detention
of its staff as a means of coercing the sending State. It has, at the same time,
refused altogether to discuss this situation with representatives of the United
States. The Court, therefore, can only conclude that Iran did not have recourse to
the normal and efficacious means at its disposal, but resorted to coercive action
against the United States Embassy and its staff.
DOCTRINE: The Iranian state was under obligation to protect the premises of
the mission, and breached the same in failing to protect and secure the premises
and for even tolerating the actions of the student militants. Instead, expressions
of approval for the attacks were made by Ayatollah and Iranian officers. The
Iranian government gave its consent to the attack upon the diplomatic premises,
violation of its dignity, and the detention of diplomats; thus the perpetrators in
effect became “agents” of the Iranian Government. Iran is therefore
internationally responsible.
FACTS:
The Events of November 4, 1979
1. The first phase of the events underlying United States' claims covers the
armed attack on the United States Embassy carried out on November 4,
1979 by Muslim Student Followers of the Imam's Policy (further referred to
as "the militants" in the Judgment), the overrunning of its premises, the
seizure of its inmates as hostages, the appropriation of its property and
archives, and the conduct of the Iranian authorities in the face of these
occurrences.
2. The Court points out that the conduct of the militants on that occasion could
be directly attributed to the Iranian State only if it were established that they
were in fact acting on its behalf. The information before the Court did not
suffice to establish this with due certainty.
3. However, the Iranian State which, as the State to which the mission was
accredited, was under obligation to take appropriate steps to protect the
United States Embassy did nothing to prevent the attack, stop it before it
reached its completion or oblige the militants to withdraw from the
premises anti release the hostages.
4. This inaction was in contrast with the conduct of the Iranian authorities on
several similar occasions at the same period, when they had taken
 appropriate steps. It constituted, the Court finds, a clear and serious
violation of Iran’s obligations to the United States under Articles 22 (2),
24,25,26, 27 and 29 of the 1961 Vienna Convention on Diplomatic
Relations, of Articles 5 and 36 of the 1963 Vienna Convention on Consular
Relations, and of Article 1(4) of the 1955 Treaty. Further breaches of the
1963 Convention had been involved in failure to protect the Consulates at
Tabriz and Shim.
5. The Court is therefore led to conclude that on 4 November 1979 the Iranian
authorities were fully aware of their obligations under the conventions in
force, and also of the urgent need for action on their part, that they had the
means at their disposal to perform their obligations, but that they
completely failed to do so.
Events since November 4, 1979
1. The second phase of the events underlying the United States' claims
comprises the whole series of facts which occurred following the
occupation of the Embassy by the militants. Though it was the duty of the
Iranian Government to take every appropriate step to end the infringement
of the inviolability of the Embassy premises and staff, and to offer
reparation for the damage, it did nothing of the kind. Instead, expressions of
approval were immediately heard from numerous Iranian authorities.
Ayatollah Khomeini himself proclaimed the Iranian State's endorsement of
both the seizure of the premises and the detention of the hostages. He
described the Embassy as a "centre of espionage", declared that the hostages
would (with some exceptions) remain “under arrest” until the United States
had returned the former Shah and his property to Iran, and forbade all
negotiation with the United States on the subject. 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.
During the six months which ensued, the situation underwent no material
change: the Court's Order of 19 December 1979 was publicly rejected by
Iran, while the Ayatollah declared that the detention of the hostages would
continue until the new Iranian parliament had taken a decision as to their
fate.
2. The Iranian authorities' decision to continue the subjection of the Embassy
to occupation, and of its staff to detention as hostages, gave rise to repeated
and multiple breaches of Iran's treaty obligations, additional to those already
committed at the time of the seizure of the Embassy (1961 Convention:
Arts. 22, 24, 25, 26, 27 and 29; 1963 Convention: inter alia, Art. 33; 1955
Treaty, Art. II (4)).
3. With regard to the Charge d'affaires aid the two other members of the
United States mission who have been in the Iranian Ministry of Foreign
Affairs since 4 November 1979, the Court finds that the Iranian authorities
have withheld from them the protection and facilities necessary to allow
them to leave the Ministry in safety. Accordingly, it appears to the Court
that in their respect there have been breaches of Articles 26 and 29 of the
1961 Vienna Convention.
4. Taking note, furthermore, that various Iranian authorities have threatened to
have some of the hostages submitted to trial before a court, or to compel
them to bear witness, the Court considers that, if put into effect, that
intention would constitute a breach of Article 31 of the same: Convention.
ISSUE/s:
1. WoN the Islamic Republic of Iran has violated the obligations it owed to the
United States of America. YES, because its acts constituted successive
and continuing breaches of the obligations laid upon it by the Vienna
Conventions of 1961 and 1963, the 1955 Treaty and the applicable rules
of general international law.
RULING: In its judgement the Court decided:
1. That Iran violated and is still violating obligations owed by it to the
United States
2. That these violations engage in Iran’s responsibility
3. That the government of Iran must immediately release the United
States nationals held as hostages and place the premise of the embassy
in the hands of the protecting power
4. That no member of the United States diplomatic or consular staff may
be kept in Iran to be subjected to any form of judicial proceedings or to
participate them as a witness
5. That Iran is under an obligation to make reparation for the injury cause
to the United States.
6. That the form and amoun of such reparation, failing agreement between
the parties shall be settled by the Court.
RATIO:
Possible Existence of Special Circumstances
1. The Court considers that it should examine the question whether the conduct
of the Iranian Government might be justified by the existence of special
circumstances, for the Iranian Minister for Foreign Affairs had alleged in his
two letters to the Court that the United States had carried out criminal
activities in Iran.
2. The Court considers that, even if these alleged activities could be considered
as proven, they would not constitute a defence to the United States' claims,
since diplomatic law provides the possibility of breaking off diplomatic
relations, or of declaring persona non grata members of diplomatic or
consular missions who may be carrying on illicit activities. The Court
concludes that the Government of Iran had recourse to coercion against the
United States Embassy and its staff instead of making use of the normal
means at its disposal.
International Responsibility
1. The Court finds that Iran, by committing successive and continuing
breaches of the obligations laid upon it by the Vienna Conventions of 1961
and 1963, the 1955'Reaty, and the applicable rules of general international
law, has incurred responsibility towards the United States. As a
consequence, there is an obligation on the part of the Iranian State to make
reparation for the injury caused to the United States. Since, however, the
breaches are still continuing, the form and amount of such reparation
cannot yet be determined
2. At the same time the Court considers it essential to reiterate the
observations it made in its Order 15 December 1979on the importance of
the principles of international law governing diplomatic and consular
relations. After stressing the particular gravity of the case, arising out of the
fact that it is not any private individuals or groups that have set at naught
the inviolability of an embassy, but the very government of the State to
which the mission is accredited, the Court draws the attention of the entire
international community to the irreparable harm that may be caused by
events of the kind before the Court. Such events cannot fail to undermine a
carefully constructed edifice of law, the maintenance of which is vital for
the security and well-being of the international community.

United States Operation in Iran on April 24- 25, 1980

1. With regard to the operation undertaken in Iran by United States military
units on April 24-25, 1980, the Court says that it cannot fail to express its
concern. It feels bound to observe that an operation undertaken in those
circumstances, from whatever motive, is of a kind calculated to undermine
respect for the judicial process in international relations. Nevertheless, the
question of the legality of that operation can have no bearing on the
evaluation of Iran's conduct on November 4,1979. The findings reached by
the Court are therefore not affected by that operation.
 020 Regina v. Palacios (Castillo, I)
- | - | Nicaraguan diplomat/ temporary departure/ no loss of immunity
PETITIONER: Regina
RESPONDENTS: Palacios
SUMMARY: A member of the Nicaraguan diplomatic staff was charged of
possession of drugs as well as prohibited weapons (2 revolvers and a mace), as
well as careless storage ammunition. He left the country (Canada) temporarily
for a trip to the US. When he returned, he was arrested and charged therefor.
The issue is WoN Palacios is protected by diplomatic immunity. The Court
ruled in the affirmative. True that diplomatic immunity ceases from the
moment a diplomat leaves the country, or after the expiry of a reasonable
period for him to do so after the termination of his functions. This allows
him to wind up his affairs without being “pounced on” by the authorities of the
host state. However, when the Vienna Convention on Diplomatic Relations
makes use of the words “leaves the country” it should be understood to
mean permanently, not temporarily. It would require the clearest possible
language in the Convention to diminish the rights of diplomats. That being the
case, the diplomat’s visit to the US could not have deprived him of his
immunity.
DOCTRINE: Diplomatic immunity ceases to be enjoyed at the moment the
diplomat leaves the country, or on expiry of a reasonable period in w/c to do so.
FACTS:
1. Palacios was a member of the diplomatic staff of the Nicaraguan Embassy
in Ottawa from 1981 to July 12, 1983, when the Embassy formally advised
the Department of External Affairs that he had terminated his duties at the
mission as of that date.
2. He was absent from Canada for a temporary visit to the United States
from July 16 to 23, 1983 while his family stayed in Ottawa.
3. On July 27, he was arrested and the next day charged with five criminal
offenses relating to drugs and weapons.
4.
ISSUES:
1. WoN Palacios is protected by diplomatic immunity – YES, diplomatic
immunity ceases from the moment the diplomat leaves the country but
“leaves" under the Vienna Convention on Diplomatic Relations refer to
PERMANENTLY leaving the country, not temporarily.
Note:
- No original case online as this was penned in French. Digest lifted from the book
RULING: Petition is denied. Palacios is immune.
RATIO:
1. Petitioner: The Crown conceded that Palacios, up to the time he was
charged, had not had a reasonable time from the termination of his
diplomatic duties to remove himself and his family from Canada. The
Crown argued that he had nevertheless lost his immunities by “leaving the
country” to visit the United States.
2. Court: The Vienna Convention on Diplomatic Relations of 1961,
implemented by the Diplomatic and Consular Privileges and Immunities
Act, stipulates in Art. 39 (2) that a diplomat’s immunities “shall normally
cease at the moment when he leaves the country, or on expiry of a
reasonable period in which to do so.”
3. Art. 39 of the Vienna Convention on Diplomatic Relations of 1961:
Canada Treaty Series states that, “When the functions of a person
enjoying privileges & immunities shall normally cease at the moment when
he leaves the country, or on expiry of a reasonable period in w/c to do so,
but shall subsist until that time, even in case of armed conflict. However, w/
respect to acts performed by such a person in the exercise of his functions
as a member of the mission, immunity shall continue to subsist.”
4. The Court of Appeals held that treaties, albeit implemented by domestic
legislation, should not be interpreted literally in the same way as domestic
statutes. The dictionary meaning of words and the rule of syntax could give
way if that was necessary to achieve an “effective” result.
5. This Convention had to be read in light of the customary rules of
International Law on diplomatic privileges and immunities, which the
convention was meant to codify and clarify.
6. There was no doubt that, in international law, diplomatic immunities
continued until the diplomat’s permanent departure from the host country,
or on the expiry of a reasonable time for him to leave permanently. “Leaves
the country” in Art. 39 (2) should be construed accordingly.
7. Palacios trip to the US was merely a visit w/c did not deprive him of his
diplomatic status. The personal inviolability of diplomats has been
recognized by all legal systems since the earliest times. This special status is
conferred on diplomats not for their own benefit, but “to ensure the efficient
performance of the functions of diplomatic missions as representing states.”
8. Under the customary rules, immunity is not limited in time to the dates on
which the diplomat takes up his duties & relinquishes them. It extends to
protect him form the time he enters the host country for the purpose of
taking up his duties & for a reasonable time after their termination in order
to enable him to wind up his affairs & leave the country.
9. The words “leaves the country” refer to “permanent departure from the host
country.” The measure of reasonableness is the time required to permit a
diplomat to move permanently from the host country either to his home
country or to another foreign posting.
The Canadian Yearbook of International Law (1985).
 021 HOLY SEE v. ROSARIO (Presh)
December 1, 1994 | Quiason, J. | Sovereignty and Jurisdiction
PETITIONER: The Holy See
RESPONDENTS: The Hon. Eriberto U. Rosario Jr., as Presiding Judge of the
Regional Trial Court of Makati, Branch 61 and Starbright Sales Enterprises, Inc.
SUMMARY: The Holy See, who exercises sovereignty over the Vatican City,
and is represented in the Philippines by the Papal Nuncio, sold its parcel of land
in Paranaque to a Philippine national who then assigned his rights to a Philippine
Corporation. The squatters on the land refused to vacate, so a dispute arose as to
which of the parties had the responsibility of clearing the land. What
complicated this more was that the Holy See again sold the land to another party.
WON The Holy See was in fact a sovereign state. Yes. The Court ruled that
indeed it is a sovereign state. The Court cited seven separate publicists and
concluded that this appears to be the universal practice in international relations.
WON The Holy See deserved the benefit of sovereign immunity in this case.
-
Yes.s The Court summarized the current state of the law, invoking the
Incorporation clause, that we have adopted the generally accepted principles of
international law. This is not only in our Constitution but also is a condition and
consequence of our admission in the society of nations. It is well established that
a sovereign cannot be sued without its consent with regard to its public acts. The
Court also applied the restrictive theory in the Philippines, since there was no
legislation on the matter, the Court tried to absorb State practice and customary
principles. The Court held that the Holy See was entitled to sovereign immunity,
for its act of transferring the property was clothed with governmental character,
not for profit or gain but because the land was impossible to use as an official
residence. 
 of Immunity as a Jurisdictional Defense." So as to facilitate the
DOCTRINE: The right of a foreign sovereign to acquire property, real or
personal, in a receiving state, necessary for the creation and maintenance of its
diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic
Relations (Arts. 2022). The Holy See is immune from suit because the act of
selling the lot of concern is non-proprietary in nature. The act of transferring the
property was clothed with governmental character, not for profit or gain but
because the land was impossible to use as an official residence. 
 invokes the privilege of sovereign immunity only on its own behalf and on
Procedure for state claiming sovereign immunity:
when a state or international
agency wishes to plead immunity in a foreign court, it requests the Foreign
Office of the state where it is sued to convey to the court that the defendant is
entitled to immunity
in the Philippines, the practice is for the foreign
government or the international organisation to first secure an executive
endorsement of its claim of immunity.
FACTS:
1. Petitioner is the Holy See who exercises sovereignty over the Vatican City
in Rome, Italy, and is represented in the Philippines by the Papal Nuncio.
2. Private respondent, Starbright Sales Enterprises, Inc., is a domestic
corporation engaged in the real estate business.
3. This petition arose from a controversy over a parcel of land consisting of
6,000 square meters, Lot 5-A, located in the Municipality of Parañaque,
Metro Manila and registered in the name of Holy See.
4. Said Lot 5-A is contiguous to Lots 5-B and 5-D are registered in the name
of the Philippine Realty Corporation (PRC). The three lots were sold to
Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the
sellers. Later, Licup assigned his rights to the sale to Starbright.
5. In view of the refusal of the squatters to vacate the lots sold to private
respondent, a dispute arose as to who of the parties has the responsibility of
evicting and clearing the land of squatters.
6. The same lots were sold to Tropicana Properties and Development
Corporation (Tropicana).
7. On January 23, 1990, Starbright filed a complaint for annulment of the sale
of the three parcels of land, and specific performance and damages against
the Holy See, represented by the Papal Nuncio, and three other defendants:
namely, Msgr. Domingo
8. The Holy See and Msgr. Cirilos separately moved to dismiss the
complaint—petitioner for lack of jurisdiction based on sovereign immunity
from suit, and Msgr. Cirilos for being an improper party.
9. The TC issued an order denying, among others, petitioner's motion to
dismiss after finding that petitioner "shed off [its] sovereign immunity
by entering into the business contract in question"
10. The Holy See moved for reconsideration of the order. It filed a "Motion for
a Hearing for the Sole Purpose of Establishing Factual Allegation for claim
determination of its defense of sovereign immunity, the Holy See prayed
that a hearing be conducted to allow it to establish certain facts upon which
the said defense is based. Starbright opposed this motion as well as the MR.
11. The issued an order deferring the resolution on the motion for
reconsideration until after trial on the merits and directing petitioner to file
its answer.
12. The Holy See forthwith elevated the matter to SC. In its petition, petitioner
behalf of its official representative, the Papal Nuncio.
13. A Motion for Intervention was filed before the SC by the Department of
Foreign Affairs, claiming that it has a legal interest in the outcome of the
case as regards the diplomatic immunity of petitioner, and that it "adopts by
reference, the allegations contained in the petition of the Holy See insofar as
they refer to arguments relative to its claim of sovereign immunity from
suit"
14. Starbright opposed the intervention.
 15. The burden of the petition is that respondent trial court has no jurisdiction
over petitioner, being a foreign state enjoying sovereign immunity.
16. On the other hand, Starbright insists that the doctrine of non suability is not
anymore absolute and that the Holy See has divested itself of such a cloak
when, of its own free will, it entered into a commercial transaction for the
sale of a parcel of land located in the Philippines.
ISSUE/s:
1. WoN the Holy See was in fact a sovereign state. Yes. The Court ruled that
indeed it is a sovereign state. The Court cited seven separate publicists and
concluded that this appears to be the universal practice in international
relations.
2. WoN The Holy See deserved the benefit of sovereign immunity in this
case.
- YES. The Court summarized the current state of the law, invoking
the Incorporation clause, that we have adopted the generally accepted
principles of international law.
RULING:
The petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183
against petitioner is DISMISSED.
RATIO:
The Holy See is a sovereign State
1. Before the annexation of the Papal States by Italy in 1870, the Pope was the
monarch and he, as the Holy See, was considered a subject of International
Law.
2. In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy
recognized the exclusive dominion and sovereign jurisdiction of the Holy
See over the Vatican City. It also recognized the right of the Holy See to
receive foreign diplomats, to send its own diplomats to foreign countries,
and to enter into treaties according to International Law (Garcia, Questions
and Problems In International Law, Public and Private 81 [1948]).
3. The Lateran Treaty established the statehood of the Vatican City "for the
purpose of assuring to the Holy See absolute and visible independence and
of guaranteeing to it indisputable sovereignty also in the field of
international relations" (O'Connell, I International Law 311 [1965]).
4. The Vatican City fits into none of the established categories of states, and
the attribution to it of "sovereignty" must be made in a sense different from
that in which it is applied to other states (Fenwick, International Law 124-
125 [1948]; Cruz, International Law 37 [1991]). In a community of national
states, the Vatican City represents an entity organized not for political but
for ecclesiastical purposes and international objects. Despite its size and
object, the Vatican City has an independent government of its own, with the
Pope, who is also head of the Roman Catholic Church, as the Holy See or
Head of State, in conformity with its traditions, and the demands of its
mission in the world. Indeed, the world-wide interests and activities of the
Vatican City are such as to make it in a sense an "international state"
(Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).
5. Inasmuch as the Pope prefers to conduct foreign relations and enter into
transactions as the Holy See and not in the name of the Vatican City, one
can conclude that in the Pope's own view, it is the Holy See that is the
international person.
6. The Republic of the Philippines has accorded the Holy See the status of
a foreign sovereign. The Holy See, through its Ambassador, the Papal
Nuncio, has had diplomatic representations with the Philippine
government since 1957 (Rollo, p. 87). This appears to be the universal
practice in international relations.
Sovereign Immunity
1. As expressed in Section 2 of Article II of the 1987 Constitution, we have
adopted the generally accepted principles of International Law. Even
without this affirmation, such principles of International Law are deemed
incorporated as part of the law of the land as a condition and consequence
of our admission in the society of nations (United States of America v.
Guinto, 182 SCRA 644 [1990]).
2. There are two conflicting concepts of sovereign immunity. According to the
classical or absolute theory, a sovereign cannot, without its consent, be
made a respondent in the courts of another sovereign. According to the
newer or restrictive theory, the immunity of the sovereign is recognized
only with regard to public acts or acts jure imperii of a state, but not with
regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and
Defensor-Santiago, Public International Law 194 [1984]).
3. Some states passed legislation to serve as guidelines for the executive or
judicial determination when an act may be considered as jure gestionis. The
United States passed the Foreign Sovereign Immunities Act of 1976, which
defines a commercial activity as "either a regular course of commercial
conduct or a particular commercial transaction or act." Furthermore, the law
declared that the "commercial character of the activity shall be determined
by reference to the nature of the course of conduct or particular transaction
or act, rather than by reference to its purpose." The Canadian Parliament
enacted in 1982 an Act to Provide For State Immunity in Canadian Courts.
The Act defines a "commercial activity" as any particular transaction, act or
conduct or any regular course of conduct that by reason of its nature, is of a
"commercial character."
4. The restrictive theory, which is intended to be a solution to the host of
problems involving the issue of sovereign immunity, has created problems
of its own. Legal treatises and the decisions in countries which follow the
restrictive theory have difficulty in characterizing whether a contract of a
sovereign state with a private party is an act jure gestionis or an act jure
imperii.
5. The restrictive theory came about because of the entry of sovereign states practice is for the foreign government or the international organisation
into purely commercial activities remotely connected with the discharge of to first secure an executive endorsement of its claim of immunity.
governmental functions. This is particularly true with respect to the 17. Remedy of aggrieved person is to ask his government to espouse his cause
Communist states which took control of nationalized business activities and through diplomatic channels.
international trading.
6. The mere entering into a contract by a foreign state with a private party
cannot be the ultimate test. In this case, the fact that the Holy See bought
the lands for the site of its mission or the apostolic Nunciature in the
Philippines brings in under jure imperii.
7. In the case at bench, if petitioner has bought and sold lands in the ordinary
course of a real estate business, surely the said transaction can be
categorized as an act jure gestionis. However, petitioner has denied that the
acquisition and subsequent disposal of Lot 5A were made for profit but
claimed that it acquired said property for the site of its mission or the
Apostolic Nunciature in the Philippines. Private respondent failed to dispute
said claim.
8. Lot 5A was acquired by petitioner as a donation from the Archdiocese of
Manila. The donation was made not for commercial purpose, but for the use
of petitioner to construct thereon the official place of residence of the Papal
Nuncio. The right of a foreign sovereign to acquire property, real or
personal, in a receiving state, necessary for the creation and maintenance of
its diplomatic mission, is recognized in the 1961 Vienna Convention on
Diplomatic Relations (Arts. 2022). This treaty was concurred in by the
Philippine Senate and entered into force in the Philippines on November 15,
1965.
9. In Article 31(a) of the Convention, a diplomatic envoy is granted
immunity from the civil and administrative jurisdiction of the receiving
state over any real action relating to private immovable property
situated in the territory of the receiving state which the envoy holds on
behalf of the sending state for the purposes of the mission. If this
immunity is provided for a diplomatic envoy, with all the more reason
should immunity be recognised as regards the sovereign itself, which in
this case is the Holy See.
10. The privilege of sovereign immunity in this case was sufficiently
established by the Memorandum and Certification of the Department of
Foreign Affairs. As the department tasked with the conduct of the
Philippines’ foreign relations (Administrative Code of 1987, Book IV, Title
I, Sec. 3), the Department of Foreign Affairs has formally intervened in
this case and officially certified that the Embassy of the Holy See is a
duly accredited diplomatic mission to the Republic of the Philippines
exempt from local jurisdiction and entitled to all the rights, privileges
and immunities of a diplomatic mission or embassy in this country.
11. Procedure for state claiming sovereign immunity:
when a state or
international agency wishes to plead immunity in a foreign court, it
requests the Foreign Office of the state where it is sued to convey to the
court that the defendant is entitled to immunity
in the Philippines, the
 022 MINUCHER v. CA (CASTRO)
February 11, 2003 | Vitug, J. | Immunities of International organization
PETITIONER: Khosrow Minucher
RESPONDENTS: Court of Appeals and Arthur Scalzo
SUMMARY: Minucher is an Iranian national who came to study in UP in 1974
and was appointed Labor Attache for the Iranian Embassies in Tokyo and
Manila; he continued to stay in the Philippines when the Shah of Iran was
deposed by Khomeini, he became a refugee of the UN and he headed the Iranian
National Resistance Movement in the Philippines. On the other hand, Scalzo was
a special agent of the US Drugs Enforcement Agency. He conducts surveillance
operations on suspected drug dealers in the Philippines believed to be the source
of prohibited drugs shipped to the US and make the actual arrest
Minucher and one Abbas Torabian was charged for a violation of Act. 6425
(Dangerous Drugs Act of 1972) before the Pasig RTC, such criminal charge was
followed by a buy-bust operation conducted by the Philippine police narcotic
agents to which Scalzo was a witness for the prosecution. They were acquitted
Later on, Minucher filed a complaint for damages against Scalzo. It was said that
Minucher and Scalzo came to know of each other thru Jose Iñigo; they
conducted some business i.e. the former sold to the latter some caviar and
Persian carpets. Scalzo then represented himself as a special agent of the Drug
Enforcement Administration, DOJ of US. Minucher expressed his desire to
obtain a US Visa for him and his Abbas wife. Scalzo told him that he could help
him for a$2,000 fee per visa. After a series of business transactions between the
two, when Scalzo came to deliver the visas to Minuchers house, he told the latter
that he would be leaving the Philippines soon and requested him to come out of
the house so he can introduce him to his cousin waiting in the cab. To his
surprise, 30-40 armed Filipino soldiers came to arrest him
In his complaint for damages, he said that some of his properties were missing
like Persian carpets, a painting together with his TV and betamax sets. There was
nothing left in his house. He averred that the said arrest was merely staged by
Scalzo. In his defense, Scalzo asserted his diplomatic immunity as evidenced by
a Diplomatic Note. He contended that it was recognized by the US Government
pursuant to the Vienna Convention on Diplomatic Relations and the Philippine
government itself thru its Executive Department and DFA. The issue is WoN
despite not being part of the enumerated list on Vienna convention on diplomatic
relations, is Scalzo immune from suit- Yes, he is immune from suit but on the
basis of “State immunity from suit” he was acting as a representative of the state
when he performs his duty as agent, hence he cannot be sued. The court also
discussed about who grants the immunity, the nature of international immunities,
and the need of consent of the receiving state as to the grant of immunity.
DOCTRINE: If the acts giving rise to a suit are those of a foreign government
done by its foreign agent, although not necessarily a diplomatic personage,
but acting in his official capacity, the complaint could be barred by the
immunity of the foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the state itself. The
proscription is not accorded for the benefit of an individual but for the State, in
whose service he is.
(In this case though Scalzo was not part of those listed in the convention as
immune from suit as a member of a diplomatic mission, he is nevertheless
immune on the basis of state immunity from suit because he is acting as a
representative of the US government)
As to other doctrine for immunities which I find also relevant:
• Vesting a person with diplomatic immunity is a prerogative of the
executive branch of the government.
• The main yardstick in ascertaining whether a person is a diplomat
entitled to immunity is the determination of whether or not he
performs duties of diplomatic nature.
• It might be recalled that the privilege is not an immunity from the
observance of the law of the territorial sovereign or from ensuing legal
liability; it is, rather, an immunity from the exercise of territorial
jurisdiction
• The Convention lists the classes of heads of diplomatic missions to
include
a. ambassadors or nuncios accredited to the heads of state
b. envoys, ministers or internuncios accredited to the heads of
states
c. charges d' affairs accredited to the ministers of foreign affairs.
FACTS:
217. Sometime in May 1986, an Information for violation of Section 4 of
Republic Act No. 6425, otherwise also known as the Dangerous Drugs Act
of 1972, was filed against petitioner Khosrow Minucher and one Abbas
Torabian with the Regional Trial Court of Pasig City
218. The criminal charge followed a buy-bust operation conducted by the
Philippine police narcotic agents in the house of Minucher, an Iranian
national, where a quantity of heroin, a prohibited drug, was said to have
been seized. The narcotic agents were accompanied by private respondent
Arthur Scalzo who would, in due time, become one of the principal
 witnesses for the prosecution
219. On 08 January 1988, Presiding Judge Eutropio Migrino rendered a decision
acquitting the two accused.
220. Minucher then filed a civil case before the RTC of Manila for damages on
account of what he claimed to have been trumped-up charges of drug
trafficking made by Arthur Scalzo.
221. According to the RTC the relevant facts are as follows:
a. Minucher is an Iranian national. He came to the Philippines to
study in the University of the Philippines in 1974. In 1976, under
the regime of the Shah of Iran, he was appointed Labor Attach for
the Iranian Embassies in Tokyo, Japan and Manila, Philippines.
When the Shah of Iran was deposed by Ayatollah Khomeini,
Minucher became a refugee of the United Nations and continued to
stay in the Philippines. He headed the Iranian National Resistance
Movement in the Philippines.
b. Minucher came to know Scalzon on 1986, when Scalzo was
brought to his house and introduced to him by a certain Jose Iigo,
an informer of the intellifence unit of the military
c. During his first meeting with Scalzo. Scalzo expressed his interest
in buying caviar and as a matter of fact, he bought two kilos of
caviar from Minucher and paid 10k
d. Selling caviar aside from the Persian carpets, pistachio nuts and
other Iranian products was Minucher’s business
e. During their introduction in that meeting, the Scalzo gave
Minucher his calling card, which showed that he is working at the
US Embassy in the Philippines, as a special agent of the Drug
Enforcement Administration, Department of Justice, of the United
States, and gave his address as US Embassy, Manila. At the back
of the card appears a telephone number in defendants own
handwriting, the number of which he can also be contacted.
f. It was also during this first meeting that Minucher expressed his
desire to obtain a US Visa for his wife and the wife of a
countryman named Abbas Torabian. Scalzo told him that he could
help plaintiff for a fee of $2,000.00 per visa.
g. Later on, Scalzo wanted to buy a pair of carpet and for the reason
that it did not yet have the money, the agreed that Scalzo would
come back the next day
h. Scalzo came back again and directly proceeded to Minucher’s
bedroom where Minucher and Torabian were playing chess
i. Minucher opened his safe in the bedroom and obtained $2,000.00
from it, gave it to Scalzo for the latter's fee in obtaining a visa for
plaintiff's wife.
j. Scalzo told Minucher that he would be leaving the Philippines very
soon and requested him to come out of the house for a while so
that he can introduce him to his cousin waiting in a cab.
k. Without much ado, and without putting on his shirt as he was only
in his pajama pants, he followed Scalzo where he saw a parked cab
opposite the street.
l. To his complete surprise, an American jumped out of the cab with
a drawn high-powered gun. He was in the company of about 30 to
40 Filipino soldiers with 6 Americans, all armed. He was
handcuffed and after about 20 minutes in the street, he was brought
inside the house by the defendant.
m. Minucher was then identified as a heroin trafficker. Also,
Minucher saw that his safety box was opened and his carpets,
painting, and other stuff in the house were missing
222. During the trial, the law firm of Luna, Sison and Manas, filed a special
appearance for Scalzo and moved for extension of time to file an answer
pending a supposed advice from the United States Department of State and
Department of Justice on the defenses to be raised.
223. The said motion for extension was granted while the motion to quash the
summons was denied on the basis that the filing of the extension was
already a voluntary appearance
224. Scalzo argued that in cases involving the United States government, as well
as its agencies and officials, a motion for extension was peculiarly
unavoidable due to the need (1) for both the Department of State and the
Department of Justice to agree on the defenses to be raised and (2) to refer
the case to a Philippine lawyer who would be expected to first review the
case.
225. The court a quo denied the motion for reconsideration
226. Scalzo filed a petition for review with the Court of Appeals, assailing the
denial
227. Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued
(a) declaring Scalzo in default for his failure to file a responsive pleading
(answer) and (b) setting the case for the reception of evidence
228. Scalzo filed a motion to set aside the order of default and to admit his
answer to the complaint. Granting the motion, the trial court set the case for
pre-trial.
229. Then, after almost two years since the institution of the civil case, Scalzo
filed a motion to dismiss the complaint on the ground that, being a
special agent of the United States Drug Enforcement Administration,
he was entitled to diplomatic immunity. He attached to his motion
Diplomatic Note No. 414 of the United States Embassy, dated 29 May
1990, addressed to the Department of Foreign Affairs of the Philippines and
a Certification, dated 11 June 1990, of Vice Consul Donna Woodward,
certifying that the note is a true and faithful copy of its original. In an order
of 25 June 1990, the trial court denied the motion to dismiss.
230. Scalzo then filed a petition for certiorari before the SC asking that the
complaint be dismissed. The case however was referred to the CA.
231. CA ruled sustaining the diplomatic immunity of Scalzo and ordering the
dismissal of the complaint against him.
232. Minucher then appelead before the SC, and it reversed the decision of CA
 and remanded the case to the lower court for trial
233. The Manila RTC thus continued with its hearings on the case and it ruled in
favor of Minucher
234. While the trial court gave credence to the claim of Scalzo and the
evidence presented by him that he was a diplomatic agent entitled to
immunity as such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed outside his official
duties.
235. On appeal, the Court of Appeals reversed the decision of the trial court and
sustained the defense of Scalzo that he was sufficiently clothed with
diplomatic immunity during his term of duty and thereby immune
from the criminal and civil jurisdiction of the Receiving State pursuant
to the terms of the Vienna Convention.
236. Hence this petition of Minucher before the SC
ISSUE/s:
61. WoN Scalzo as an agent of the United States immune from suit– YES,
though he is not a diplomatic personality what applies to him is the
principle of state immunity from suit and as a representative of the state he
cannot be sued without the latter’s consent
RULING: WHEREFORE, on the foregoing premises, the petition is DENIED.
No costs.
RATIO:
1. Scalzo contends that the Vienna Convention on Diplomatic Relations, to
which the Philippines is a signatory, grants him absolute immunity from
suit, describing his functions as an agent of the United States Drugs
Enforcement Agency as conducting surveillance operations on suspected
drug dealers in the Philippines believed to be the source of prohibited drugs
being shipped to the U.S
2. The documents, according to Scalzo, would show that:
a. the United States Embassy accordingly advised the Executive
Department of the Philippine Government that Scalzo was a
member of the diplomatic staff of the United States diplomatic
mission from his arrival in the Philippines on 14 October 1985
until his departure on 10 August 1988;
b. That the United States Government was firm from the very
beginning in asserting the diplomatic immunity of Scalzo with
respect to the case pursuant to the provisions of the Vienna
Convention on Diplomatic Relations; and
c. That the United States Embassy repeatedly urged the Department
of Foreign Affairs to take appropriate action to inform the trial
court of Scalzos diplomatic immunity
3. The Vienna Convention on Diplomatic Relations was a codification of
centuries-old customary law. Traditionally, the exercise of diplomatic
intercourse among states was undertaken by the head of state himself, as
being the preeminent embodiment of the state he represented, and the
foreign secretary, the official usually entrusted with the external affairs of
the state. Where a state would wish to have a more prominent diplomatic
presence in the receiving state, it would then send to the latter a diplomatic
mission.
4. Conformably with the Vienna Convention, the functions of the diplomatic
mission involve, by and large, the representation of the interests of the
sending state and promoting friendly relations with the receiving state
5. The Convention lists the classes of heads of diplomatic missions to include
a. ambassadors or nuncios accredited to the heads of state
b. envoys, ministers or internuncios accredited to the heads of states
c. charges d' affairs accredited to the ministers of foreign affairs.
Comprising the "staff of the (diplomatic) mission" are the diplomatic
staff, the administrative staff and the technical and service staff.
Only the heads of missions, as well as members of the diplomatic staff,
excluding the members of the administrative, technical and service staff
of the mission, are accorded diplomatic rank.
Even while the Vienna Convention on Diplomatic Relations provides
for immunity to the members of diplomatic missions, it does so,
nevertheless, with an understanding that the same be restrictively
applied.
6. The main yardstick in ascertaining whether a person is a diplomat
entitled to immunity is the determination of whether or not he
performs duties of diplomatic nature.
7. Scalzo was an Assistant Attaché of the US diplomatic mission. An
attaché belongs to a category of officers in the diplomatic establishment
who may be in charge of its cultural, press, administrative or financial
affairs. There could also be a class of attaches belonging to certain
ministries or departments of the government, other than the foreign ministry
or department, who are detailed by their respective ministries or
departments with the embassies such as the military, naval, air, commercial,
agricultural, labor, science, and customs attaches, or the like
8. Attaches assist a chief of mission in his duties and are administratively
under him, but their main function is to observe, analyze and interpret
trends and developments in their respective fields in the host country and
submit reports to their own ministries or departments in the home
government. These officials are not generally regarded as members of
the diplomatic mission, nor are they normally designated as having
diplomatic rank. Vesting a person with diplomatic immunity is a
prerogative of the executive branch of the government.
9. Concededly, vesting a person with diplomatic immunity is a
prerogative of the executive branch of the government.
10. In World Health Organization vs. Aquino, the Court has recognized that,
 in such matters, the hands of the courts are virtually tied. Amidst from suit but only as long as it can be established that he is acting within the
apprehensions of indiscriminate and incautious grant of immunity, designed directives of the sending state. The consent of the host state is an
to gain exemption from the jurisdiction of courts, it should behoove the indispensable requirement of basic courtesy between the two
Philippine government, specifically its Department of Foreign Affairs, to be sovereigns.
most circumspect, that should particularly be no less than compelling, in its 8. The consent or imprimatur of the Philippine government to the activities of
post litem motam issuances. It might be recalled that the privilege is not the United States Drug Enforcement Agency, however, can be gleaned from
an immunity from the observance of the law of the territorial sovereign the facts heretofore elsewhere mentioned. The official exchanges of
or from ensuing legal liability; it is, rather, an immunity from the communication between agencies of the government of the two
exercise of territorial jurisdiction countries, certifications from officials of both the Philippine
1. The government of the United States itself, which Scalzo claims to be Department of Foreign Affairs and the United States Embassy, as well
acting for, has formulated its standards for recognition of a diplomatic as the participation of members of the Philippine Narcotics Command
agent. The State Department policy is to only concede diplomatic status to in the buy-bust operation conducted at the residence of Minucher at the
a person who possesses an acknowledged diplomatic title and "performs behest of Scalzo, may be inadequate to support the "diplomatic status"
duties of diplomatic nature." Supplementary criteria for accreditation are the of the latter but they give enough indication that the Philippine
possession of a valid diplomatic passport or, from States which do not issue government has given its imprimatur, if not consent, to the activities
such passports, a diplomatic note formally representing the intention to within Philippine territory of agent Scalzo of the United States Drug
assign the person to diplomatic duties, the holding of a non-immigrant Enforcement Agency.
visa, being over twenty-one years of age and performing diplomatic
functions on an essentially full-time basis.
2. But while the diplomatic immunity of Scalzo might thus remain
contentious, it was sufficiently established that, indeed, he worked for the
United States Drug Enforcement Agency and was tasked to conduct
surveillance of suspected drug activities within the country on the dates
pertinent to this case. If it should be ascertained that Arthur Scalzo was
acting well within his assigned functions when he committed the acts
alleged in the complaint, the present controversy could then be resolved
under the related doctrine of State Immunity from Suit.
3. The precept that a State cannot be sued in the courts of a foreign state
is a long-standing rule of customary international law then closely identified
with the personal immunity of a foreign sovereign from suit
4. If the acts giving rise to a suit are those of a foreign government done
by its foreign agent, although not necessarily a diplomatic personage,
but acting in his official capacity, the complaint could be barred by the
immunity of the foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the state itself.
The proscription is not accorded for the benefit of an individual but for the
State, in whose service he is
5. In US v. Guinto - While the doctrine of state immunity appears to prohibit
only suits against the state without its consent, it is also applicable to
complaints filed against officials of the state for acts allegedly performed by
them in the discharge of their duties
6. In Shauf v. CA - While the doctrine (of state immunity) appears to prohibit
only suits against the state without its consent, it is also applicable to
complaints filed against officials of the state for acts allegedly performed by
them in the discharge of their duties
7. A foreign agent, operating within a territory, can be cloaked with immunity
 023 Indonesia v. Vinzon (CELAJE)
June 26, 2003 | Azcuna, J. | States are acting in pursuit of a sovereign activity when it
enters into contracts with private entities to maintain the premises, furnishings and
equipment of their embassy
PETITIONER: THE REPUBLIC OF INDONESIA, AMBASSADOR
SOERATMIN, and MINISTER COUNSELLOR AZHARI KASIM.
RESPONDENTS: JAMES VINZON, doing business under the name and style
of VINZON TRADE AND SERVICES.
SUMMARY: Petitioner, Republic of Indonesia, entered into a Maintenance
Agreement in August 1995 with respondent James Vinzon, sole proprietor of
Vinzon Trade and Services. Indonesia later on terminated the MoA with
Vinzon. Respondent Vinzon then filed a complaint against Petitioners
Indonesia. Indonesia filed a motion to dismiss, claiming it has sovereign
immunity from suits. Respondent Vinzon claims that Indonesia waived its
immunity from suit from a provision in the MoA.
Issue: W/N Indonesia waived its immunity from suit. No.
There is no dispute that the establishment of a diplomatic mission is an act jure
imperii (public act). It is therefore clear that petitioner Republic of Indonesia
was acting in pursuit of a sovereign activity when it entered into a contract with
respondent for the upkeep or maintenance of the air conditioning units,
generator sets, electrical facilities, water heaters, and water motor pumps of the
Indonesian Embassy and the official residence of the Indonesian ambassador.
DOCTRINE: The mere entering into a contract by a foreign State with a
private party cannot be construed as the ultimate test of whether or not it is an
act jure imperii or jure gestionis. Hence, the existence alone of a paragraph in a
contract stating that any legal action arising out of the agreement shall be settled
according to the laws of the Philippines and by a specified court of the
Philippines is not necessarily a waiver of sovereign immunity from suit. The
aforesaid provision contains language not necessarily inconsistent with
sovereign immunity.
FACTS:
45. Petitioner, Republic of Indonesia, represented by its Counsellor, Siti
Partinah, entered into a Maintenance Agreement in August 1995 with
respondent James Vinzon, sole proprietor of Vinzon Trade and Services.
46. The Maintenance Agreement stated that respondent Vinzon shall, for a
consideration, maintain specified equipment at the Embassy Main Building,
Embassy Annex Building and the Wisma Duta, the official residence of
petitioner Ambassador Soeratmin. The equipment covered by the
Maintenance Agreement are air conditioning units, generator sets, electrical
facilities, water heaters, and water motor pumps.
47. Petitioners Indonesia claim that sometime prior to the date of expiration of
the said agreement, or before August 1999, they informed respondent
Vinzon that the renewal of the agreement shall be at the discretion of the
incoming Chief of Administration, Minister Counsellor Azhari Kasim, who
was expected to arrive in February 2000. When Minister Counsellor Kasim
assumed the position of Chief of Administration in March 2000, he
allegedly found respondent Vinzon’s work and services unsatisfactory and
not in compliance with the standards set in the Maintenance Agreement.
48. Hence, the Indonesian Embassy terminated the agreement in a letter dated
August 31, 2000.
49. On the other hand, respondent Vinzon claims that the aforesaid termination
was arbitrary and unlawful.
50. Respondent Vinzon cites various circumstances which purportedly negated
petitioner Indonesia's’ alleged dissatisfaction over respondent Vinzon’s
services: (a) in July 2000, Minister Counsellor Kasim still requested respondent Vinzon to
assign to the embassy an additional full-time worker to assist one of his other workers; and (b)
in a letter dated August 22, 2000, petitioner Ambassador Soeratmin thanked respondent
Vinzon for sponsoring a prize, on the occasion of the Indonesian Independence Day golf
tournament; and expressed his hope that the cordial relations happily existing between them
will continue to prosper and be strengthened in the coming years.
51. Hence, on December 15, 2000, respondent Vinzon filed a complaint3 against
petitioners.
52. On February 20, 2001, petitioners filed a Motion to Dismiss, alleging that
the Republic of Indonesia, as a foreign sovereign State, has sovereign
immunity from suit and cannot be sued as a party-defendant in the
Philippines.
53. The said motion further alleged that Ambassador Soeratmin and Minister
Counsellor Kasim are diplomatic agents as defined under the Vienna
Convention on Diplomatic Relations and therefore enjoy diplomatic
immunity.
54. In turn, respondent Vinzon filed on March 20, 2001, an Opposition to the
said motion alleging that the Republic of Indonesia has expressly waived its
immunity from suit. He based this claim upon the following provision in the
Maintenance Agreement:
a. "Any legal action arising out of this Maintenance Agreement shall
be settled according to the laws of the Philippines and by the
proper court of Makati City, Philippines."
55. The trial court denied herein petitioner Indonesia’s Motion to Dismiss. MR
denied. The CA also denied petitioner's appeal. Hence, this petition.
ISSUES:
1. WoN petitioners have waived their immunity from suit by using as its basis
the abovementioned provision in the Maintenance Agreement— No. The
existence alone of the questioned provision is not necessarily a waiver of
 sovereign immunity from suit.
RULING: WHEREFORE, the petition is hereby GRANTED. The decision and
resolution of the Court of Appeals in CA G.R. SP No. 66894 are REVERSED and
SET ASIDE and the complaint in Civil Case No. 18203 against petitioners is
DISMISSED.
RATIO:
1. International law is founded largely upon the principles of reciprocity,
comity, independence, and equality of States which were adopted as part of
the law of our land under Article II, Section 2 of the 1987 Constitution. The
rule that a State may not be sued without its consent is a necessary
consequence of the principles of independence and equality of States.
2. As enunciated in Sanders v. Veridiano II, the practical justification for the
doctrine of sovereign immunity is that there can be no legal right against the
authority that makes the law on which the right depends.
3. In the case of foreign States, the rule is derived from the principle of the
sovereign equality of States, as expressed in the maxim par in parem non
habet imperium. All states are sovereign equals and cannot assert
jurisdiction over one another.
4. However, the increasing need of sovereign States to enter into purely
commercial activities remotely connected with the discharge of their
governmental functions brought about a new concept of sovereign
immunity.
5. This concept, the restrictive theory, holds that the immunity of the
sovereign is recognized only with regard to public acts or acts jure imperii,
but not with regard to private acts or acts jure gestionis.
6. Apropos the present case, the mere entering into a contract by a foreign
State with a private party cannot be construed as the ultimate test of whether
or not it is an act jure imperii or jure gestionis. Such act is only the start of
the inquiry.
7. Is the foreign State engaged in the regular conduct of a business? If the
foreign State is not engaged regularly in a business or commercial activity,
and in this case it has not been shown to be so engaged, the particular act or
transaction must then be tested by its nature. If the act is in pursuit of a
sovereign activity, or an incident thereof, then it is an act jure imperii.
8. Hence, the existence alone of a paragraph in a contract stating that any legal
action arising out of the agreement shall be settled according to the laws of
the Philippines and by a specified court of the Philippines is not necessarily
a waiver of sovereign immunity from suit. The aforesaid provision contains
language not necessarily inconsistent with sovereign immunity.
9. On the other hand, such provision may also be meant to apply where the
sovereign party elects to sue in the local courts, or otherwise waives its
immunity by any subsequent act.
10. Submission by a foreign state to local jurisdiction must be clear and
unequivocal. It must be given explicitly or by necessary implication. We
find no such waiver in this case.
11. Respondent Vinzon concedes that the establishment of a diplomatic mission
is a sovereign function. On the other hand, he argues that the actual physical
maintenance of the premises of the diplomatic mission, such as the upkeep
of its furnishings and equipment, is no longer a sovereign function of the
State.
12. We disagree. There is no dispute that the establishment of a diplomatic
mission is an act jure imperii. A sovereign State does not merely establish a
diplomatic mission and leave it at that; the establishment of a diplomatic
mission encompasses its maintenance and upkeep.
13. It is therefore clear that petitioner Republic of Indonesia was acting in
pursuit of a sovereign activity when it entered into a contract with
respondent for the upkeep or maintenance of the air conditioning units,
generator sets, electrical facilities, water heaters, and water motor pumps of
the Indonesian Embassy and the official residence of the Indonesian
ambassador.
14. On the matter of whether or not petitioners Ambassador Soeratmin and
Minister Counsellor Kasim may be sued herein in their private capacities,
Article 31 of the Vienna Convention on Diplomatic Relations provides:
a. 1. A diplomatic agent shall enjoy immunity from the criminal jurisidiction of the
receiving State. He shall also enjoy immunity from its civil and administrative
jurisdiction, except in the case of:
b. (a) a real action relating to private immovable property situated in the territory of
the receiving State, unless he holds it on behalf of the sending State for the purposes
of the mission;
c. (b) an action relating to succession in which the diplomatic agent is involved as
executor, administrator, heir or legatee as a private person and not on behalf of the
sending State;
d. (c) an action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions.
15. The act of petitioners Ambassador Soeratmin and Minister Counsellor
Kasim in terminating the Maintenance Agreement is not covered by the
exceptions provided in the abovementioned provision.
 024 Nicolas v. Romulo (Coscolluela)
February 11, 2009 | Azcuna, J. | Immunities of International Organizations
PETITIONER: Suzette Nicolas y Sombilon
RESPONDENTS: Albert Romulo, in his capacity as Secretary of Foreign
Affairs; Raul Gonzales, in his capacity as Secretary of Justice, Eduardo Ermita,
in his capacity as Exeutive Secretary; Ronaldo Puno, in his capacity as Secretary
of the DILG; Sergio Apostol, in his capacity as Presidential Legal Counsel;
L/CPL Daniel Smith
SUMMARY: L/CPL Daniel Smith was accused of raping Suzette Nicolas.
During the trial his custody was transferred to the US Embassy pursuant to the
Kenney-Romulo Agreements of Dec. 19 and 22, 2006. The Agreements were
supposedly pursuant to the VFA. L/CPL was then convicted of rape and was
continually detained in the US Embassy. Nicolas questioned the transfer of
custody by assailing the constitutionality of the VFA agreement, specifically
citing Art.V Sec. 10 as being violative of the Supreme Court’s exclusive power
to adopt rules of procedure for all courts in the Philippines. The issue is WoN the
transfer of L/CPL Daniel Smith was violative of the Supreme Court’s exclusive
power to adopt rules of procedure for all courts in the Philippines. The Supreme
Court held NO, under international law, foreign armed forces allowed to enter
one’s territory is immune from local jurisdiction, except to the extent agreed
upon. The receiving State can exercise jurisdiction over the forces of the sending
State only to the extent agreed upon by the parties. The situation involved is not
one in which the power of the Supreme Court to adopt rules of procedure is
curtailed or violated, but rather one in which, as is normally encountered around
the world, the laws (including rules) of one State do not extend or apply to
subjects of another State due to the recognition of extraterritorial immunity given
to such bodies as visiting foreign armed forces. Nothing in the Constitution
prohibits recognition of immunity from jurisdiction or some aspects of
jurisdiction (such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomates and members of the armed forces
contingents of a foreign State allowed to enter another State’s territory. On the
contrary, the Constitution states that the Philippines adopts the generally
accepted principles of international law as part of the law of the land.
However, applying the provisions of VFA, the Supreme Court found that there is
a different treatment when it comes to detention as against custody. The moment
the accused has to be detained e.g. after conviction, Art. V Sec. 10 of the VFA
provides that: “The confinement or detention by the Philippine authorities of the
US personnel shall be carried out in facilities agreed by appropriate Philippines
and US authorities. US personnel serving sentences in the Philippines shall have
the rights to visits and material assistance.” It is clear that the VFA recognized
the difference between custody during trial and detention after conviction. The
specific arrangement clearly states not only that the detention shall be carried out
in facilities agreed on by authorities of both parties, but also that the detention
shall be “by Philippine authorities.” Therefore, the Romulo-Kenney Agreements
which are agreements on the detention of L/CPL Daniel Smith in the US
Embassy are not in accordance with the VFA.
DOCTRINE: The rule in international law is that foreign armed forces allowed
to enter one’s territory is immune from local jurisdiction, except to the extent
agreed upon. The Status of Froces Agreements involving foreign military units
around the world vary in terms and conditions, according to the situation of the
parties involved, and reflect their bargaining power.
Note: The case was 70 pages long - including the dissenting opinions (none of
which talked about immunity) - but the majority of the case talked about the
constitutionality of the VFA in the context of Senate concurrence as well as the
the US’ obligation under the VFA, how it’s binding etc. Only a limited portion of
the case discussed immunity.
FACTS:
1. Lance Corporal (L/CPL) Daniel Smith (a member of the United States
Armed Forces) was accused of Rape in RTC of Zambales. But, the trial was
transferred to RTC of Makati for security reasons.
2. Pursuant to the Visiting Forces Agreement (VFA), the US made a request
and was granted custody of L/CPL Daniel Smith pending proceedings. The
US Government complied with its undertaking to bring L/CPL Daniel
Smith every time his presence was required.
3. L/CPL was convicted of rape and sentenced to reclusion perpetua while his
co-accused were acquitted.
a. In the RTC decision, the court said: “Pursuant to Art. V, par. 10 of
the VFA x x x, accused L/CPL Daniel J. Smith shall serve his
sentence in the facilities that shall, thereafter, be agreed upon by
appropriate Philippines and US authorities. Pending agreement x x
x, accused L/CPL Daniel J. Smith is hereby temporarily commited
to the Makatiy City Jail.”
4. On December 29, 2006 L/CPL Daniel Smith was taken out of Makati jail
pursuant to orders of the DILG and brought to a facility for detention under
the control of the US Government, provided for under the Romulo-Kenney
Agreement of Deccember 19, 2006 (signed by Ambassador Kristie Kenney
as representative of the US Government and Chief State prosecutor
Jovencito Zuno).
a. “The Government of the Republic of the Philippines and the
Government of the United States of America agree that, in
accordance with the Visiting Forces Agreement signed between
our two nations, L/CPL Daniel J. Smith, United States Marine
Corps, be returned to U.S. military custody at the U.S. Embassy in
Manila.”
5. The Romulo-Kenney Agreement of December 22, 2006 (signed by US
Ambassador and Secretary of Justice Raul Gonzales and Secretary of
 Foreign Affairs Alberto Romulo) provided that:
a. “[U]pon transfer of L/CPL Daniel Smith x x x from the Makati
City Jail, he will be detained at the first floor, Rowe (JUSMAG)
Building, US Embassy Compound x x x. The Philippine police and
jail authorities, under direct supervision of the DILG will have
access to the place of detention to ensure the US is in compliance
with the terms of the VFA.”
6. The case was appealed to the CA but the same was dismissed for being
moot.
7. Nicolas (the victim) argues that the Philippines should have custody of
L/CPL Daniel Smith because the VFA is void and unconstitutional. Against
the barriers of res judicata and stare decisis, she argues that the reversal of
the previous ruling is sought on the ground that the issue is of primordial
importance, involving the sovereignty of the Republic, as well as a specific
mandate of the Constitution.
8. Nicolas contends that the undertakings under Art. V Sec. 623 of the VFA is
unconstitutional for violating the exclusive power of the Supreme Court to
adopt rules of procedure for all courts in the Philippines. (Art. VIII, Sec.
5(5)). That to allow the transfer of custody of an accused to a foreign power
is to provide for a different rule of procedure for that accused, which also
violates the equal protection clause.
9. Hence, this petition.
ISSUE/s:
1. WoN the transfer of L/CPL Daniel Smith was violative of the Supreme
Court’s exclusive power to adopt rules of procedure for all courts in the
Philippines – NO, the situation involved is one in which, as is normally
encountered around the world, the laws (including rules) of one State do not
extend or apply to subjects of another State due to the recognition of
extraterritorial immunity given to such bodies as visiting foreign armed
forces.
RULING: WHEREFORE, the petitions are PARTLY GRANTED, and the Court of
23 The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall
immediately reside with United States military authorities, if they so request, from the commission of the
offense until completion of all judicial proceedings. United States military authorities shall, upon formal
notification by the Philippine authorities and without delay, make such personnel available to those
authorities in time for any investigative or judicial proceedings relating to the offense with which the
person has been charged. In extraordinary cases, the Philippine Government shall present its position to
the United States Government regarding custody, which the United States Government shall take into full
account. In the event Philippine judicial proceedings are not completed within one year, the United States
shall be relieved of any obligations under this paragraph. The one year period will not include the time
necessary to appeal. Also, the one year period will not include any time during which scheduled trial
procedures are delayed because United States authorities, after timely notification by Philippine
authorities to arrange for the presence of the accused, fail to do so.
Appeals’ Decision in CA-G.R. SP No. 97212 dated January 2, 2007 is MODIFIED.
The Visiting Forces Agreement (VFA) between the Republic of the Philippines and
the United States, entered into on February 10, 1998, is UPHELD as constitutional,
but the Romulo-Kenney Agreements of December 19 and 22, 2006 are
DECLARED not in accordance with the VFA, and respondent Secretary of
Foreign Affairs is hereby ordered to forthwith negotiate with the United States
representatives for the appropriate agreement on detention facilities under
Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which
the status quo shall be maintained until further orders by this Court.
The Court of Appeals is hereby directed to resolve without delay the related matters
pending therein, namely, the petition for contempt and the appeal of L/CPL Daniel
Smith from the judgment of conviction.
RATIO:
2. First, the equal protection clause is not violated because there is substantial
basis for a different treatment of a member of a foreign military armed
forces allowed to enter the Philippines and all other accused.
3. The rule in international law is that foreign armed forces allowed to enter
one’s territory is immune from local jurisdiction, except to the extent
agreed upon. The Status of Froces Agreements involving foreign military
units around the world vary in terms and conditions, according to the
situation of the parties involved, and reflect their bargaining power.
4. But the principle remains that the receiving State can exercise
jurisdiction over the forces of the sending State only to the extent
agreed upon by the parties.
5. The situation involved is not one in which the power of the Supreme Court
to adopt rules of procedure is curtailed or violated, but rather one in which,
as is normally encountered around the world, the laws (including rules) of
one State do not extend or apply – except to the extent agreed upon – to
subjects of another State due to the recognition of extraterritorial immunity
given to such bodies as visiting foreign armed forces.
6. Nothing in the Constitution prohibits recognition of immunity from
jurisdiction or some aspects of jurisdiction (such as custody), in relation
to long-recognized subjects of such immunity like Heads of State,
diplomates and members of the armed forces contingents of a foreign
State allowed to enter another State’s territory. On the contrary, the
Constitution states that the Philippines adopts the generally accepted
principles of international law as part of the law of the land.
7. However, applying the provisions of VFA, the Supreme Court found that
there is a different treatment when it comes to detention as against custody.
The moment the accused has to be detained e.g. after conviction, Art. V
Sec. 10 of the VFA provides that: “The confinement or detention by the
Philippine authorities of the US personnel shall be carried out in facilities
agreed by appropriate Philippines and US authorities. US personnel serving
 sentences in the Philippines shall have the rights to visits and material
assistance.”
8. It is clear that the VFA recognized the difference between custody during
trial and detention after conviction. The specific arrangement clearly states
not only that the detention shall be carried out in facilities agreed on by
authorities of both parties, but also that the detention shall be “by Philippine
authorities.” Therefore, the Romulo-Kenney Agreements which are
agreements on the detention of L/CPL Daniel Smith in the US Embassy are
not in accordance with the VFA.
9. Therefore, there should be compliance with the VFA and negotiation with
the representatives of the US towards an agreement on detention facilities
under the Philippine authorities as mandated by Art. V Sec. 10 of the VFA.
 025 DEUTSCHE v. CA (Cruz)
Pril 16, 2009 | Tinga, J. | Immunity from suit
PETITIONER: DEUTSCHE GESELLSCHAFT FÜR TECHNISCHE
ZUSAMMENARBEIT, also known as GERMAN AGENCY FOR
TECHNICAL COOPERATION, (GTZ) HANS PETER PAULENZ and ANNE
NICOLAY
RESPONDENTS: HON. COURT OF APPEALS, HON. ARIEL CADIENTE
SANTOS, Labor Arbiter of the Arbitration Branch, National Labor Relations
Commission, and BERNADETTE CARMELLA MAGTAAS, CAROLINA
DIONCO, CHRISTOPHER RAMOS, MELVIN DELA PAZ, RANDY
TAMAYO and EDGARDO RAMILLO
FACTS:
SUMMARY: The Philippine government, through then Foreign Affairs
Secretary Domingo Siazon, and the German government, agreed to an
Arrangement in furtherance of the 1971 Agreement. This Arrangement affirmed
the common commitment of both governments to promote jointly a project
called, Social Health Insurance—Networking and Empowerment (SHINE),
which was designed to "enable Philippine families–especially poor ones–to
maintain their health and secure health care of sustainable quality." The
Philippines named the Department of Health (DOH) and the Philippine Health
Insurance Corporation (Philhealth) as its respective implementing organizations
for SHINE while the German government - the Deustche Gesellschaft für
Technische Zusammenarbeit (GTZ) GmbH, Eschborn, with the implementation
of its contributions." Private respondents were engaged as contract employees
hired by GTZ to work for SHINE on various dates between December of 1998 to
September of 1999. However, when Nicolay assumed the post of SHINE Project
Manager, Disagreements eventually arose between Nicolay and private
respondents in matters such as proposed salary adjustments, and the course
Nicolay was taking in the implementation of SHINE different from her
predecessors. Negotiations through letters ensued but lead to the dismissal of the
private respondents. The private respondents filed a complaint for illegal
dismissal with the NLRC GTZ, through counsel, filed a Motion to Dismiss, on
the ground that the Labor Arbiter had no jurisdiction over the case, as its acts
were undertaken in the discharge of the governmental functions and sovereign
acts of the Government of the Federal Republic of Germany. The issue in this
case is WoN the complaint for illegal dismissal should have been dismissed
for lack of jurisdiction on account of GTZ’s insistence that it enjoys
immunity from suit. The SC ruled in the negative because GTZ consistently
has been unable to establish with satisfaction that it enjoys the immunity
from suit generally enjoyed by its parent country, the Federal Republic of
Germany. The requirement to secure from the Department of Foreign Affairs "a
certification of respondents’ diplomatic status and entitlement to diplomatic
privileges including immunity from suits” might not necessarily be imperative.
However, had GTZ obtained such certification from the DFA, it would have
provided factual basis for its claim of immunity that would, at the very least,
establish a disputable evidentiary presumption that the foreign party is indeed
immune which the opposing party will have to overcome with its own factual
evidence.
DOCTRINE: In Public International Law, when a state or international
agency wishes to plead sovereign or diplomatic immunity in a foreign court,
it requests the Foreign Office of the state where it is sued to convey to the
court that said defendant is entitled to immunity. In the Philippines, the
practice is for the foreign government or the international organization to
first secure an executive endorsement of its claim of sovereign or diplomatic
immunity
1. The governments of the Federal Republic of Germany and the Republic of
the Philippines ratified an Agreement concerning Technical Co-operation
(Agreement) in Bonn, capital of what was then West Germany.
2. The Agreement affirmed the countries’ "common interest in promoting the
technical and economic development of their States, and recogni[zed] the
benefits to be derived by both States from closer technical co-operation,"
and allowed for the conclusion of "arrangements concerning individual
projects of technical co-operation."
3. While the Agreement provided for a limited term of effectivity of five (5)
years, it nonetheless was stated that "[t]he Agreement shall be tacitly
extended for successive periods of one year unless either of the two
Contracting Parties denounces it in writing three months prior to its expiry,"
and that even upon the Agreement’s expiry, its provisions would "continue
to apply to any projects agreed upon x x x until their completion."
4. The Philippine government, through then Foreign Affairs Secretary
Domingo Siazon, and the German government, agreed to an Arrangement
in furtherance of the 1971 Agreement. This Arrangement affirmed the
common commitment of both governments to promote jointly a project
called, Social Health Insurance—Networking and Empowerment (SHINE),
which was designed to "enable Philippine families–especially poor ones–to
maintain their health and secure health care of sustainable quality."
5. It appears that SHINE had already been in existence even prior to the
effectivity of the Arrangement, though the record does not indicate when
exactly SHINE was constituted.
6. In the arraignment, both governments likewise named their respective
implementing organizations for SHINE.
a. The Philippines - the Department of Health (DOH) and the
Philippine Health Insurance Corporation (Philhealth)
b. the German government - the Deustche Gesellschaft für
Technische Zusammenarbeit (GTZ) GmbH, Eschborn, with the
implementation of its contributions."
7. Private respondents were engaged as contract employees hired by GTZ to
work for SHINE on various dates between December of 1998 to September
of 1999.
 c. Bernadette Carmela Magtaas was hired as an "information systems
manager and project officer of SHINE;"
d. Carolina Dionco as a "Project Assistant of SHINE;"
e. Christopher Ramos as "a project assistant and liason personnel of
NHI related SHINE activities by GTZ;"
f. Melvin Dela Paz and Randy Tamayo as programmers; and
g. Edgardo Ramilo as "driver, messenger and multipurpose service
man
8. The employment contracts of all six private respondents all specified Dr.
Rainer Tollkotter, identified as an adviser of GTZ, as the "employer."
9. At the same time, all the contracts commonly provided that "[i]t is mutually
agreed and understood that [Dr. Tollkotter, as employer] is a seconded GTZ
expert who is hiring the Employee on behalf of GTZ and for a Philippine-
German bilateral project named ‘Social Health Insurance—Networking and
Empowerment (SHINE)’ which will end at a given time.
10. In September of 1999, Anne Nicolay (Nicolay), a Belgian national, assumed
the post of SHINE Project Manager. Disagreements eventually arose
between Nicolay and private respondents in matters such as proposed salary
adjustments, and the course Nicolay was taking in the implementation of
SHINE different from her predecessors
11. The dispute culminated in a letter dated 8 June 2000, signed by the private
respondents, addressed to Nicolay, and copies furnished officials of the
DOH, Philheath, and the director of the Manila office of GTZ.
12. It was claimed that SHINE under Nicolay had veered away from its original
purpose to facilitate the development of social health insurance by shoring
up the national health insurance program and strengthening local initiatives,
as Nicolay had refused to support local partners and new initiatives on the
premise that community and local government unit schemes were not
sustainable—a philosophy that supposedly betrayed Nicolay’s lack of
understanding of the purpose of the project.
h. that as a result of Nicolay’s "new thrust, resources have been used
inappropriately;"
i. that the new management style was "not congruent with the
original goals of the project;"
j. that Nicolay herself suffered from "cultural insensitivity" that
consequently failed to sustain healthy relations with SHINE’s
partners and staff.
13. In response, Nicolay wrote each of the private respondents a letter, all
similarly worded except for their respective addressees.
k. She informed private respondents that the "project’s orientations
and evolution" were decided in consensus with partner institutions,
Philhealth and the DOH, and thus no longer subject to
modifications.
l. She also stated “You have firmly and unequivocally stated in the
last paragraph of your 8th June 2000 letter that you and the five
other staff "could no longer find any reason to stay with the project
unless ALL of these issues be addressed immediately and
appropriately." Under the foregoing premises and circumstances, it
is now imperative that I am to accept your resignation, which I
expect to receive as soon as possible”
14. Taken aback, private respondents replied clarifying that their earlier letter
was not intended as a resignation letter, but one that merely intended to
raise attention to what they perceived as vital issues.
15. Negotiations ensued between private respondents and Nicolay, but for
naught. Each of the private respondents received a letter from Nicolay dated
11 July 2000, informing them of the pre-termination of their contracts of
employment on the grounds of "serious and gross insubordination, among
others, resulting to loss of confidence and trust."
16. Hence, the private respondents filed a complaint for illegal dismissal with
the NLRC.
m. GTZ, the Director of its Manila office Hans Peter Paulenz, its
Assistant Project Manager Christian Jahn, and Nicolay were
named respondents
17. GTZ, through counsel, filed a Motion to Dismiss, on the ground that the
Labor Arbiter had no jurisdiction over the case, as its acts were undertaken
in the discharge of the governmental functions and sovereign acts of the
Government of the Federal Republic of Germany.
n. This was opposed by private respondents with the arguments that
GTZ had failed to secure a certification that it was immune from
suit from the Department of Foreign Affairs, and that it was GTZ
and not the German government which had implemented the
SHINE Project and entered into the contracts of employment.
18. the Labor Arbiter denied the Motion to Dismiss
o. GTZ was a private corporation which entered into an employment
contract
p. GTZ had failed to secure from the DFA a certification as to its
diplomatic status
19. GTZ filed with the Labor Arbiter a "Reiterating Motion to Dismiss,"
q. No action was taken by the Labor Arbiter on this new motion.
Instead, the Labor Arbiter rendered a Decision granting the
complaint for illegal dismissal.
20. GTZ opted to assail the decision by way of a special civil action for
certiorari filed with the Court of Appeals. The CA denied its petition
21. Hence, this petition for review under Rule 45
ISSUE/s:
62. WoN the complaint for illegal dismissal should have been dismissed for
lack of jurisdiction on account of GTZ’s insistence that it enjoys immunity
from suit – NO, GTZ consistently has been unable to establish with
satisfaction that it enjoys the immunity from suit generally enjoyed by
its parent country, the Federal Republic of Germany.
RULING: WHEREFORE, the petition is DENIED. No pronouncement as to costs.
RATIO:
22. The Court required the Office of the Solicitor General (OSG) to file a
Comment on the petition. In its Comment, the OSG took the side of GTZ,
with the prayer that the petition be granted on the ground that GTZ was
immune from suit, citing in particular its assigned functions in
implementing the SHINE program—a joint undertaking of the Philippine
and German governments which was neither proprietary nor commercial in
nature.
23. private respondents were unable to adduce any evidence to substantiate their
claim that GTZ was a "private corporation," and the Labor Arbiter acted
rashly in accepting such claim without explanation. But neither has GTZ
supplied any evidence defining its legal nature beyond that of the bare
descriptive "implementing agency."
24. There is no doubt that the 1991 Agreement designated GTZ as the
"implementing agency" in behalf of the German government. But such term
has no precise definition that is responsive to our concerns.
a. Inherently, an agent acts in behalf of a principal, and the GTZ can
be said to act in behalf of the German state. But that is as far as
"implementing agency" could take us. The term by itself does not
supply whether GTZ is incorporated or unincorporated, whether it
is owned by the German state or by private interests, whether it has
juridical personality independent of the German government or
none at all.
25. GTZ’s own website elicits that it is "federally owned," a "federal
enterprise," and "founded in 1975 as a company under private law." GTZ
clearly has a very meaningful relationship with the Federal Republic of
Germany, which apparently owns it. At the same time, it appears that GTZ
was actually organized not through a legislative public charter, but under
private law, in the same way that Philippine corporations can be organized
under the Corporation Code even if fully owned by the Philippine
government.
26. This self-description of GTZ in its own official website gives further cause
for pause in adopting petitioners’ argument that GTZ is entitled to immunity
from suit because it is "an implementing agency." The statement in its
website does not dispute the characterization of GTZ as an "implementing
agency of the Federal Republic of Germany," yet it bolsters the notion that
as a company organized under private law, it has a legal personality
independent of that of the Federal Republic of Germany.
27. The Federal Republic of Germany, in its own official website, also makes
reference to GTZ and describes it in this manner:
a. x x x Going by the principle of "sustainable development," the
German Technical Cooperation (Deutsche Gesellschaft für
Technische Zusammenarbeit GmbH, GTZ) takes on non-profit
projects in international "technical cooperation." The GTZ is a
private company owned by the Federal Republic of Germany.
28. Again, we are uncertain of the corresponding legal implications under
German law surrounding "a private company owned by the Federal
Republic of Germany."
a. Taking the description on face value, the apparent equivalent under
Philippine law is that of a corporation organized under the
Corporation Code but owned by the Philippine government, or a
government-owned or controlled corporation without original
charter. And it bears notice that Section 36 of the Corporate Code
states that "[e]very corporation incorporated under this Code has
the power and capacity x x x to sue and be sued in its corporate
name."
29. It is entirely possible that under German law, an entity such as GTZ or
particularly GTZ itself has not been vested or has been specifically deprived
the power and capacity to sue and/or be sued. Yet in the proceedings below
and before this Court, GTZ has failed to establish that under German law, it
has not consented to be sued despite it being owned by the Federal Republic
of Germany.
30. The Court adhered to the rule that in the absence of evidence to the
contrary, foreign laws on a particular subject are presumed to be the same as
those of the Philippines
a. Following the most intelligent assumption we can gather, GTZ is
akin to a governmental owned or controlled corporation without
original charter which, by virtue of the Corporation Code, has
expressly consented to be sued. At the very least, like the Labor
Arbiter and the Court of Appeals, this Court has no basis in fact to
conclude or presume that GTZ enjoys immunity from suit.
31. Our ruling in Holy See v. Del Rosario provided a template on how a foreign
entity desiring to invoke State immunity from suit could duly prove such
immunity before our local courts. The principles enunciated in that case
were derived from public international law. We stated then:
a. In Public International Law, when a state or international
agency wishes to plead sovereign or diplomatic immunity in a
foreign court, it requests the Foreign Office of the state where
it is sued to convey to the court that said defendant is entitled
to immunity.
32. In the Philippines, the practice is for the foreign government or the
international organization to first secure an executive endorsement of
its claim of sovereign or diplomatic immunity. But how the Philippine
Foreign Office conveys its endorsement to the courts varies.
33. In International Catholic Migration Commission v. Calleja, the Secretary of
Foreign Affairs just sent a letter directly to the Secretary of Labor and
Employment, informing the latter that the respondent-employer could not
be sued because it enjoyed diplomatic immunity.
34. In World Health Organization v. Aquino, the Secretary of Foreign Affairs immunity from suit, one which focuses on the particular functions exercised
sent the trial court a telegram to that effect. by the party and determines whether these are proprietary or sovereign in
35. In Baer v. Tizon, the U.S. Embassy asked the Secretary of Foreign Affairs nature.
to request the Solicitor General to make, in behalf of the Commander of the 44. The nature of the acts performed by the entity invoking immunity
United States Naval Base at Olongapo City, Zambales, a "suggestion" to remains the most important barometer for testing whether the privilege
respondent Judge. The Solicitor General embodied the "suggestion" in a of State immunity from suit should apply. At the same time, our
Manifestation and Memorandum as amicus curiae. Constitution stipulates that a State immunity from suit is conditional on its
36. It is to be recalled that the Labor Arbiter, in both of his rulings, noted that it withholding of consent; hence, the laws and circumstances pertaining to the
was imperative for petitioners to secure from the Department of Foreign creation and legal personality of an instrumentality or agency invoking
Affairs "a certification of respondents’ diplomatic status and entitlement to immunity remain relevant. Consent to be sued, as exhibited in this decision,
diplomatic privileges including immunity from suits." is often conferred by the very same statute or general law creating the
37. The requirement might not necessarily be imperative. However, had GTZ instrumentality or agency.
obtained such certification from the DFA, it would have provided factual
basis for its claim of immunity that would, at the very least, establish a
disputable evidentiary presumption that the foreign party is indeed immune
which the opposing party will have to overcome with its own factual
evidence.
38. We do not see any evidence that the DFA, the office of the executive branch
in charge of our diplomatic relations, has indeed endorsed GTZ’s claim of
immunity. It may be possible that GTZ tried, but failed to secure such
certification, due to the same concerns that we have discussed herein.
39. Nowhere in the Comment of the OSG is it manifested that the DFA has
endorsed GTZ’s claim, or that the OSG had solicited the DFA’s views on
the issue. The arguments raised by the OSG are virtually the same as the
arguments raised by GTZ without any indication of any special and distinct
perspective maintained by the Philippine government on the issue. The
Comment filed by the OSG does not inspire the same degree of confidence
as a certification from the DFA would have elicited.1avvphi1
40. Holy See made reference to Baer v. Tizon, and that in the said case, the
United States Embassy asked the Secretary of Foreign Affairs to request the
Solicitor General to make a "suggestion" to the trial court, accomplished by
way of a Manifestation and Memorandum, that the petitioner therein
enjoyed immunity as the Commander of the Subic Bay Naval Base. As
narrated in Holy See, it was the Secretary of Foreign Affairs which directed
the OSG to intervene in behalf of the United States government in the Baer
case, and such fact is manifest enough of the endorsement by the Foreign
Office. We do not find a similar circumstance that bears here.
41. The Court is thus holds and so rules that GTZ consistently has been
unable to establish with satisfaction that it enjoys the immunity from
suit generally enjoyed by its parent country, the Federal Republic of
Germany.
42. Consequently, both the Labor Arbiter and the Court of Appeals acted within
proper bounds when they refused to acknowledge that GTZ is so immune
by dismissing the complaint against it.
43. This decision should not be seen as deviation from the more common
methodology employed in ascertaining whether a party enjoys State
 026 DFA v. NLRC (Dim)
Sept. 18, 1996 | J. Vitug | Diplomatic Immunity of ADB
PETITIONER: Department of Foreign Affairs
RESPONDENTS: National Labor Relations Commission (NLRC), Labor Arbiter
Nieves De Castro and Jose Magnayi
SUMMARY: Jose Magnayi was an employee of the ADB who claimed that he was
illegally dismissed and that ADB violated municipal labor laws. He filed a complaint
with the Labor Arbiter who then sent summons to the ADB and the DFA. The ADB
notified the Labor Arbiter of its diplomatic immunity as an international organization.
Magnayi argued that by entering into service contracts with different private parties,
ADB has descended to the level of an ordinary party to a commercial transaction
giving rise to a waiver of its immunity from suit. The Labor Arbiter ruled in favor of
Magnayi as a regular employee and ordered reinstatement. ADB did not appeal and
the DFA referred the decision to the NLRC which did not overturn the decision of the
Labor Arbiter. The DFA brought the matter to the SC. The issues before the court
were the proper invocation of diplomatic immunity by ADB, and the propriety of
DFA acting on ADB's behalf. The SC granted the petition of the DFA on the clear
stipulations of the Charter and Headquarters Agreement of the ADB. The SC cited
the Holy See case which distinguished public acts or acts jure imperii, which have
sovereign immunity, from private acts or acts gestionis, which are not covered by
such immunity. Magnayi is then mistaken, as the service contracts he is referring to
have not been intended by the ADB for profit or gain but are official acts over which
a waiver of immunity would not attach. Therefore they are acts jure imperii. That
Court also recognized that the DFA makes the determination of persons and
institutions covered by diplomatic immunities. The DFA then, must be allowed to
plead its case before the courts whenever necessary or advisable to enable it to help
keep the credibility of the Philippine government before the international
community. When international agreements are concluded, the parties thereto are
deemed to have likewise accepted the responsibility of seeing to it that their
agreements are duly regarded.
DOCTRINE: The Asian Development Bank, being an international organization
that has been extended a diplomatic status, is independent of the municipal law, based
on its Charter and the Headquarter's agreement. Its service contracts with its
employees are acts jure imperii or sovereign acts that are covered under their
diplomatic immunity. The petition of DFA on behalf of the ADB is an affirmation of
the government's own recognition of ADB's immunity.
FACTS:
31. Jose Magnayi was an employee of Asian Development Bank (ADB). He
initiated a case with the NLRC for his alleged illegal dismissal in addition
to ADB's violation of the “labor-only” contracting law. The labor arbiter
sent summons to the ADB and the Department of Foreign Affairs (DFA).
32. ADB notified the Labor Arbiter (LA) that the ADB as an institution, along
with its president and officers, are covered by an immunity legal process
except for borrowings, guaranties or the sale of securities pursuant to
the Agreement Establishing the Asian Development Bank (the "Charter")
in relation to the Agreement Between The Bank And The Government Of
The Philippines Regarding The Bank's Headquarters (the "Headquarters
Agreement"), where it is stated that all governors, directors, officers, and
employees shall be immune from legal process with respect to acts
performed in their official capacity, except when the bank waves its
immunity.
33. The LA took cognizance of the complaint on the impression that ADB
waived its diplomatic immunity from suit. The LA ruled that Magyani was
a regular employee and ordered his reinstatement. The ADB did not appeal,
and the DFA referred the case to the NLRC for a void judgment.
34. The NLRC sided with the LA, stating that the ADB could have made a
special appearance to invoke immunity and that the DFA should go to the
Ombudsman instead to investigate the LA. Thus, DFA filed a petition for
certiorari to the SC.
ISSUES:
(4) WoN ADB was correct in invoking its immunity from suit under the
Charter and the Headquarters Agreement – YES. Being an international
organization that has been extended a diplomatic status, the ADB is
independent of the municipal law.
RULING: WHEREFORE, the petition for certiorari is GRANTED, and the
decision of the Labor Arbiter is VACATED for being NULL AND VOID.
RATIO:
ADB's Diplomatic Immunity
16. The stipulations of both the Charter and Headquarters Agreement establish
that, except in the specified cases of borrowing and guarantee operations, as
well as the purchase, sale and underwriting of securities, the ADB enjoys
immunity from legal process of every form.
17. The Banks officers, on their part, enjoy immunity in respect of all acts
performed by them in their official capacity. The Charter and the
Headquarters Agreement granting these immunities and privileges are treaty
covenants and commitments voluntarily assumed by the Philippine
government which must be respected.
18. The decision in International Catholic Migration Commission vs. Calleja,
which has similarly deemed the Memoranda of the Legal Adviser of the
Department of Foreign Affairs to be "a categorical recognition by the
Executive Branch of Government that ICMC x x x enjoy(s) immunities
accorded to international organizations" and which determination must be
held "conclusive upon the Courts in order not to embarrass a political
department of Government. In relation to this case, the filing of the
 petition by the DFA, in behalf of ADB, is itself an affirmance of the
government's own recognition of ADB's immunity.
19. Magnayi argues that, by entering into service contracts with different
private companies (I guess he is referring to his own service contract with
ADB), ADB has descended to the level of an ordinary party to a commercial
transaction giving rise to a waiver of its immunity from suit.
20. In the case of Holy See vs. Hon. Rosario, Jr., the Court held that the
immunity of the sovereign is recognized only with regard to public acts
or acts jure imperii of a state, but not with regard to private act or acts jure
gestionis.
21. The logical question is whether the foreign state is engaged in the activity in
the regular course of business. If the foreign state is not engaged regularly
in a business or trade, the particular act or transaction must then be tested by
its nature. If the act is in pursuit of a sovereign activity, or an incident
thereof, then it is an act jure imperii, especially when it is not
undertaken for gain or profit.
22. Magnayi is then mistaken, as the service contracts he is referring to have
not been intended by the ADB for profit or gain but are official acts over
which a waiver of immunity would not attach. Therefore they are acts jure
imperii.

DFA's standing to file the case on behalf of ADB

23. In Public International Law, when a state or international agency wishes to
plead sovereign or diplomatic immunity in a foreign court, it requests the
Foreign Office of the state where it is sued to convey to the court that said
defendant is entitled to immunity. [Holy See v. Rosario Jr.]
24. The DFA's function includes, among its other mandates, the
determination of persons and institutions covered by diplomatic
immunities, a determination which, when challenged, entitles it to seek
relief from the court so as not to seriously impair the conduct of the
country's foreign relations.
25. The DFA must be allowed to plead its case before the courts whenever
necessary or advisable to enable it to help keep the credibility of the
Philippine government before the international community. When
international agreements are concluded, the parties thereto are deemed to
have likewise accepted the responsibility of seeing to it that their
agreements are duly regarded.
26. In our country, this task falls principally on the DFA as being the highest
executive department with the competence and authority to so act in this
aspect of the international arena.
 LASCO v. UNITED NATIONS (Eleazar) affirmed by the executive branch of the government as in the case at bar, it is
February 23, 1995 | Quiason, J. | Immunities of International Organizations then the duty of the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government
PETITIONERS: ELDEPIO LASCO, RODOLFO ELISAN, URBANO
BERADOR, FLORENTINO ESTOBIO, MARCELINO MATURAN, FRAEN
BALIBAG, CARMELITO GAJOL, DEMOSTHENES MANTO, SATURNINO
FACTS:
BACOL, SATURNINO LASCO, RAMON LOYOLA, JOSENIANO B.
20. Petitioners, Lasco, et. al. (Lasco), were dismissed from their employment
ESPINA, all represented by MARIANO R. ESPINA, petitioner
with private respondent, the United Nations Revolving Fund for Natural
RESPONDENTS: UNITED NATIONS REVOLVING FUND FOR
Resources Exploration (UNRFNRE), which is a special fund and subsidiary
NATURAL RESOURCES EXPLORATION (UNRFNRE) represented by its
organ of the United Nations.
operations manager, DR. KYRIACOS LOUCA, OSCAR N. ABELLA, LEON
21. The UNRFNRE is involved in a joint project of the Philippine Government
G. GONZAGA, JR., MUSIB M. BUAT, Commissioners of National Labor
and the United Nations for exploration work in Dinagat Island.
Relations Commission (NLRC), Fifth Division, Cagayan de Oro City and
22. Petitioners are the complainants in NLRC Cases for illegal dismissal and
IRVING PETILLA, Labor Arbiter of Butuan City
damages.
23. In its Motion to Dismiss, UNRFNRE alleged that respondent Labor Arbiter
SUMMARY: Petitioners, Lasco et. al., were dismissed from their employment
had no jurisdiction over its personality since it enjoyed diplomatic immunity
with private respondent, the United Nations Revolving Fund for Natural
pursuant to the 1946 Convention on the Privileges and Immunities of the
Resources Exploration (UNRFNRE), which is a special fund and subsidiary
United Nations.
organ of the United Nations. The UNRFNRE is involved in a joint project of the
24. In support thereof, UNRFNRE attached a letter from the Department of
Philippine Government and the United Nations for exploration work in Dinagat
Foreign Affairs dated August 26, 1991, which acknowledged its immunity
Island. Lasco, et. al., are the complainants for illegal dismissal and damages.
from suit.
UNRFNRE alleged that respondent Labor Arbiter had no jurisdiction over its
25. The letter confirmed that UNRFNRE, being a special fund administered by
personality since it enjoyed diplomatic immunity. The issue in this case is
the United Nations, was covered by the 1946 Convention on the Privileges
whether or not specialized agencies such as the UNRFNRE enjoy diplomatic
and Immunities of the United Nations of which the Philippine Government
immunity. The court rules yes. In this case, UNRFNRE is not engaged in a
was an original signatory.
commercial venture in the Philippines. Its presence is by virtue of a joint project
26. On November 25, 1991, respondent Labor Arbiter issued an order
entered into by the Philippine Government and theUnited Nations for mineral
dismissing the complaints on the ground that UNRFNRE was protected by
exploration in Dinagat Island. Furthermore, the diplomatic immunity of private
diplomatic immunity. The dismissal was based on the letter of the Foreign
respondent was sufficiently established by the letter of the Department of
Office dated September 10, 1991.
Foreign Affairs, recognizing and confirming the immunity of UNRFNRE in
27. Lasco's motion for reconsideration was denied. Thus, an appeal was filed
accordance with the 1946 Convention on Privileges and Immunities of the
with the NLRC, which affirmed the dismissal of the complaints in its
United Nations where the Philippine Government was a party. The issue whether
Resolution dated January 25, 1993.
an international organization is entitled to diplomatic immunity is a "political
28. Lasco filed the instant petition for certiorari without first seeking a
question" and such determination by the executive branch is conclusive on the
reconsideration of the NLRC resolution.
courts and quasi-judicial agencies.

DOCTRINE: Immunity is necessary to assure unimpeded performance of their ISSUE/s

functions. The purpose is "to shield the affairs of international organizations, in
accordance with international practice, from political pressure or control by the
host country to the prejudice of member States of the organization, and to ensure
the unhampered performance of their functions.”
It is a recognized principle of international law and under our system of
separation of powers that diplomatic immunity is essentially a political question
and courts should refuse to look beyond a determination by the executive branch
of the government, and where the plea of diplomatic immunity is recognized and
W/N specialized agencies such as UNRFNRE enjoy diplomatic immunity? – YES,
The diplomatic immunity of private respondent was sufficiently established by the
letter of the Department of Foreign Affairs, recognizing and confirming the
immunity of UNRFNRE in accordance with the 1946 Convention on Privileges and
Immunities of the United Nations where the Philippine Government was a party
RULING: WHEREFORE, the petition is DISMISSED
RATIO:
16. Article 223 of the Labor Code of the Philippines, as amended, provides that
 decisions of the NLRC are final and executory. Thus, they may only be
questioned through certiorari as a special civil action under Rule 65 of the
Revised Rules of Court.
17. Ordinarily, certiorari as a special civil action will not lie unless a motion for
reconsideration is first filed before the respondent tribunal, to allow it an
opportunity to correct its assigned errors.
18. In the case at bench, Lasco’s failure to file a motion for reconsideration is
fatal to the instant petition. Moreover, the petition lacks any explanation for
such omission, which may merit its being considered as falling under the
recognized exceptions to the necessity of filing such motion.
19. Notwithstanding, the SC deems it wise to give due course to the petition
because of the implications of the issue in our international relations.
20. Lasco argued that the acts of mining exploration and exploitation are
outside the official functions of an international agency protected by
diplomatic immunity. Even assuming that private respondent was entitled to
diplomatic immunity, Lasco insisted that UNRFNRE waived it when it
engaged in exploration work and entered into a contract of employment
with Lasco.
21. Lasco, likewise, invoked the constitutional mandate that the State shall
afford full protection to labor and promote full employment and equality of
employment opportunities for all.
22. The Office of the Solicitor General is of the view that private respondent is
covered by the mantle of diplomatic immunity. Private respondent is a
specialized agency of the United Nations. Under Article 105 of the Charter
of the United Nations:
a. The Organization shall enjoy in the territory of its Members such
privileges and immunities as are necessary for the fulfillment of its
purposes.
b. Representatives of the Members of the United Nations and
officials of the Organization shall similarly enjoy such privileges
and immunities as are necessary for the independent exercise of
their functions in connection with the organization.
23. Corollary to the cited article is the Convention on the Privileges and
Immunities of the Specialized Agencies of the United Nations, to which the
Philippines was a signatory. We quote Sections 4 and 5 of Article III
thereof:
a. Sec. 4. The specialized agencies, their property and assets,
wherever located and by whomsoever held shall enjoy immunity
from every form of legal process except insofar as in any particular
case they have expressly waived their immunity. It is, however,
understood that no waiver of immunity shall extend to any measure
of execution.
b. Sec. 5. The premises of the specialized agencies shall be
inviolable. The property and assets of the specialized agencies,
wherever located and by whomsoever held, shall be immune from
search, requisition, confiscation, expropriation and any other form
of interference, whether by executive, administrative, judicial or
legislative action.
24. As a matter of state policy as expressed in the Constitution, the Philippine
Government adopts the generally accepted principles of international law.
Being a member of the United Nations and a party to the Convention on the
Privileges and Immunities of the Specialized Agencies of the United
Nations, the Philippine Government adheres to the doctrine of immunity
granted to the United Nations and its specialized agencies. Both treaties
have the force and effect of law.
25. In World Health Organization v. Aquino, the Court had occasion to rule
that:
a. It is a recognized principle of international law and under our
system of separation of powers that diplomatic immunity is
essentially a political question and courts should refuse to look
beyond a determination by the executive branch of the
government, and where the plea of diplomatic immunity is
recognized and affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the courts to
accept the claim of immunity upon appropriate suggestion by the
principal law officer of the government, the Solicitor General or
other officer acting under his direction. Hence, in adherence to the
settled principle that courts may not so exercise their jurisdiction
by seizure and detention of property, as to embarrass the executive
arm of the government in conducting foreign relations, it is
accepted doctrine that "in such cases the judicial department of
(this) government follows the action of the political branch and
will not embarrass the latter by assuming an antagonistic
jurisdiction.
26. The SC recognizes the growth of international organizations dedicated to
specific universal endeavors, such as health, agriculture, science and
technology and environment. It is not surprising that their existence has
evolved into the concept of international immunities. The reason behind the
grant of privileges and immunities to international organizations, its
officials and functionaries is to secure them legal and practical
independence in fulfilling their duties.
27. Immunity is necessary to assure unimpeded performance of their functions.
The purpose is "to shield the affairs of international organizations, in
accordance with international practice, from political pressure or control by
the host country to the prejudice of member States of the organization, and
to ensure the unhampered performance of their functions.”
28. In the International Catholic Migration Commission case, the SC held that
there is no conflict between the constitutional duty of the State to protect the
rights of workers and to promote their welfare, and the grant of immunity to
international organizations. Clauses on jurisdictional immunity are now
standard in the charters of the international organizations to guarantee the
smooth discharge of their functions.
29. The diplomatic immunity of private respondent was sufficiently
established by the letter of the Department of Foreign Affairs,
recognizing and confirming the immunity of UNRFNRE in accordance
with the 1946 Convention on Privileges and Immunities of the United
Nations where the Philippine Government was a party. The issue whether
an international organization is entitled to diplomatic immunity is a
"political question" and such determination by the executive branch is
conclusive on the courts and quasi-judicial agencies.
30. Our courts can only assume jurisdiction over private respondent if it
expressly waived its immunity, which is not so in the case at bench.
31. Private respondent is not engaged in a commercial venture in the
Philippines. Its presence here is by virtue of a joint project entered into
by the Philippine Government and the United Nations for mineral
exploration in Dinagat Island. Its mission is not to exploit our natural
resources and gain pecuniarily thereby but to help improve the quality of
life of the people, including that of petitioners.
32. This is not to say that petitioner have no recourse. Section 31 of the
Convention on the Privileges and Immunities of the Specialized Agencies of
the United Nations states that "each specialized agency shall make a
provision for appropriate modes of settlement of: (a) disputes arising out of
contracts or other disputes of private character to which the specialized
agency is a party.”
 028 WHO v. AQUINO (Escalona)
November 29, 1972 | Teehankee, J. | Immunities of Internationa Organizations;
Search and seizure
PETITIONER: World Health Organization, in behalf of Dr. Leonce Verstuyft
RESPONDENTS: Hon. Benjamin Aquino
SUMMARY: Dr. Leonce Verstuyft was assigned by WHO to its regional office
in Manila as Acting Assistant Director of Health Services. His personal effects,
contained in 12 crates, were allowed free entry from duties
and taxes. Constabulary Offshore Action Center (COSAC) suspected that the
crates “contain large quantities of highly dutiable goods” beyond the official
needs of Verstuyft. Upon application of the COSAC officers, Judge Aquino
issued a search warrant for the search and seizure of the personal effects
of Verstuyft.
Secretary of Foreign Affairs Carlos P. Romulo advised Judge Aquino that Dr.
Verstuyft is entitled to immunity from search in respect for his personal baggage
as accorded to members of diplomatic missions pursuant to the Host Agreement
and requested that the search warrant be suspended. The Solicitor General
accordingly joined Verstuyft for the quashal of the search warrant but
respondent judge nevertheless summarily denied the quashal. Verstuyft, thus,
filed a petition for certiorari and prohibition with the SC. WHO joined Verstuyft
in asserting diplomatic immunity.
The issue is WoN Dr. Verstuyft enjoys diplomatic immunity.
The SC held that yes, he does enjoy diplomatic immunity. The Executive branch
expressly, through the Solicitor General as the principal law officer, recognized
Dr. Verstuyft’s diplomatic immunity and this may not be assailed or ignored by
the Judiciary. This is because diplomatic immunity is a political question and
may only be recognized and affirmed by the Executive branch. Therefore, Judge
Aquino’s continuation of the search and seizure procedure was beyond his
jurisdiction. The search and seizure warrant is quashed.
DOCTRINES: 1. Diplomatic immunity may be recognized under Host
Agreements.
2. Declarations of the Executive branch upon the status of a person in relation to
his diplomatic immunity may not be assailed or ignored by the other branches of
government. This is based on the principle that determination of diplomatic
immunity is a political question, and is supported by the separation of powers of
the branches of government.
FACTS:
24. Dr. Leonce Verstuyft was assigned to the Regional Office of the WHO in
Manila as the Acting Assistant Director of Health Services. He entered the
Philippines with 12 crates of personal effects as unaccompanied baggage.
These were accorded free entry from duties and taxes. The crates were
directly stored at the Eternit Corporation’s warehouse at Mandaluyong,
Rizal pending his relocation of permanent housing.
25. Judge Aquino issued a search and seizure warrant upon the application of
the Constabulary Offshore Action Center (COSAC) for violation of RA
4712, referring to the Tariff and Customs Code.
26. The WHO Regional Director, Dr. Francisco Dy, and the Secretary of
Foreign Affairs, Carlos Romulo, personally told Judge Aquino on the same
day of the issuance of the warrant that, “Dr. Verstuyft is entitled to
immunity from search in respect of his personal baggage as accorded to
members of diplomatic missions” pursuant to the Host Agreement and
requested suspension of the search warrant.
27. A hearing was held to clarify the diplomatic immunity of Dr. Verstuyft, but
Judge Aquino still ordered the search and seizure. This is because Judge
Aquino relied on the suspicion of the COSAC officers that the unopened
crates contained contraband items.
28. Petitioners filed for writ of prohibition and/or temporary restraining order to
the trial court. This was denied by the same judge.
29. The Solicitor General also gave its opinion that Dr. Verstuyft enjoys
diplomatic immunity from the customs duties and taxes.
30. The case was brought to the SC and Dr. Verstuyft, alongside the WHO,
argues that he is entitled to all privileges, immunities, exemptions, and
facilities accorded to diplomatic envoys in accordance with international
law under Sec. 24 of the Host Agreement.
a. Sec. 24 of the Host Agreement – In addition to the immunities and
privileges specifified in Sections 22 and 23, the Director-General,
the Deputy Director-General, the Assistant Directors-General,
the Regional Director in the Republic of the Philippines and, if the
Director-General should so desire and communicate the names to
the Government of the Republic of the Philippines, certain officials
of a director’s status, shall be accorded in respect of themselves,
their spouses and minor children, the privileges and immunities,
exemptions and facilities accorded to diplomatic envoys in
accordance with international law.
31. (A host agreement is a treaty between an international organization and a
State. This regulates the status and privileges of an international
organization, including its members, in the territory of a host State)
ISSUES:
17. WoN the personal effects of Dr. Verstuyft can be exempted from search and
seizure under diplomatic immunity – YES. The Executive branch expressly
recognized his diplomatic immunity and the Judiciary cannot ignore this
recognition of status. This is based on the principle that the determination of
diplomatic immunity is a political question.
RULING: Writs of prohibition and certiorari are granted. Petitioner wins.

RATIO:
250. The Executive branch of the Philippine Government has expressly
recognized that Dr. Verstuyft is entitled to diplomatic immunity, pursuant to
the provisions of the Host Agreement. It is a recognized principle of
international law that under the system of separation of powers that
diplomatic immunity is a political question and courts cannot look
beyond a determination by the Executive branch. It is then the duty of
the courts to accept the claim of immunity upon the appropriate suggestion
of the principal law officer of the Government. The Solicitor General is
such person in this case, or any other officer acting under his direction.
Therefore, the court has no jurisdiction to neglect Dr. Verstuyft’s
diplomatic immunity.
251. The Court also ruled that the Philippine Government is bound by the
procedure laid down in Article VII of the Convention on the Privileges and
Immunities of the Specialized Agencies of the United Nations. This
Convention refers to consultations between the Host State and the United
Nations Agency (the WHO in this case), to determine in the first instance
the fact of occurrence of the alleged abuse. This treaty states that the case
should be forwarded to the foreign affairs division of the government. This
treaty commitment was voluntarily assumed by the Philippine Government
and has the force and effect of law.
a. Therefore, assuming arguendo that Judge Aquino had some
ground to prove abuse of diplomatic immunity, the
continuation of the search and seizure proceedings was not the
proper remedy. He should have deferred the issue to the
exclusive jurisdiction of the Executive branch and forwarded
the findings of the grounds of abuse of diplomatic immunity to
the Department of Foreign Affairs.
252. Lastly, the Court declared that there was apparent lack of coordination
between the various departments involved in the subject-matter of this case.
The search and seizure warrant should never have arisen if the COSAC
officers only followed the instructions of the Secretary of Foreign Affairs
that Dr. Verstuyft has diplomatic immunity.
a. RA 75 was enacted to safeguard the jurisdictional immunity of
diplomatic officials in the Philippines. This law declares null and
void any writ or process sued or prosecuted when the person is
an ambassador or public minister is arrested or imprisoned or
his goods or chattels are seized or attached. This law also makes
it a penal offense for any person to obtain or execute the writ or
process as criminally liable.
 029 ICMC v. CALLEJA (GALINDEZ)
28 September 1990 | Melencio-Herrera, J. | Immunities of International
Organizations
PETITIONER: International Catholic Immigration
RESPONDENTS: Hon. Calleja and TUPAS
PETITIONER: Kapisanan ng Manggagawa at TAC sa IRRI-Organized Labor
Association in Line Industries and Agriculture
RESPONDENTS: Secretary of Labor and Employment and IRRI
SUMMARY: The ICMC is an international organization rendering voluntary and
humanitarian services in the Philippines which is supposed to take charge of the
refugee center for the Southern Vietnamese in Bataan. The Trade Unions of the
Philipppines and Allied Services (TUPAS) filed with the Ministry of Labor &
Employment a Petition for Certification Election among the rank and file members
employed by the ICMC. This was opposed by ICMC as it believes it enjoys
diplomatic immunity. The Bureau of Labor Relations Director Calleja reversed the
decision of the Med-Arbiter and granted TUPAS’ petition. Hence, the case was
raised to the SC
Another case was filed before the SC posing a similar issue. The Philippine
Government and the Ford and Rockefeller Foundations signed a Memorandum of
Understanding establishing the International Rice Research Institute (IRRI) at Los
Banos, Laguna. The IRRI was organized and registered with the SEC as a private
corporation but PD 1620 granted it the status of an international organization. The
Organized Labor Association in Line Industries and Agriculture (OLALIA), is a
legitimate labor organization with an existing local union, the Kapisanan ng
Manggagawa at TAC sa IRRI (Kapisanan, for short) in respondent IRRI The
Kapisanan filed a Petition for Direct Certification Election with Region IV, Regional
Office of the Department of Labor and Employment (DOLE). IRRI opposed the
petition citing PD 1620. Director Calleja also granted its petition, and the matter was
raised to the SC.
ISSUE: WoN the grant of diplomatic privileges and ummunities to ICMC extends to
immunity from the application of Philippine labor laws – YES… [see doctrine]
ISSUE: WoN the Secretary of Labor committed grave abuse of discretion in dismissing
the Petition for Certification Election filed by Kapisanan – NO… [see doctrine]
The exercise of jurisdiction by the Department of Labor in these instances would
defeat the very purpose of immunity, which is to shield the affairs of international
organizations, in accordance with international practice, from political pressure or
control by the host country to the prejudice of member States of the organization,
and to ensure the unhampered performance of their functions.
DOCTRINE: The raison d'etre for the immunities is the assurance of unimpeded
performance of their functions by the agencies concerned. The grant of immunity
from local jurisdiction to ICMC and IRRI is clearly necessitated by their
international character and respective purposes. The objective is to avoid the danger
of partiality and interference by the host country in their internal workings.
FACTS:
1. These two cases involve the validity of the claim of immunity by the
International Catholic Migration Commission (ICMC) and the International
Rice Research Institute, Inc. (IRRI) from the application of Philippine labor
laws.
The ICMI Case
2. An agreement was forged between the Philippine Government and the UN
High Commissioner for Refugees from South Vietnam [because of the
Vietnam war] and an operating center for processing Indo-Chinese refugees
for eventual resettlement to other countries was to be established in Bataan.
3. ICMC was accredited by the Philippine Government to operate the refugee
processing center. It was incorporated in NY, USA and duly registered with
the UN ECOSOC.
4. As an international organization rendering voluntary and humanitarian
services in the Philippines, its activities are parallel to those of the
International Committee for Migration (ICM) and the International
Committee of the Red Cross (ICRC).
5. The Trade Unions of the Philipppines and Allied Services (TUPAS) filed
with the Ministry of Labor & Employment a Petition for Certification
Election among the rank and file members employed by the ICMC.
6. ICMC opposed the petition on the ground that since it’s an international
organization and registered with the UN, it enjoyes diplomatic immunity.
7. Med-Arbiter Anastacio Bactin sustained ICMC’s defense and dismissed the
petition for lack of jurisdiction.
8. On appeal, TUPAS Director Pura Calleja of the Bureau of Labor Relations
(BLR) reversed Bactin’s Decision and ordered the immediate conduct of a
certification election. At the time, ICMC's request for recognition as a
specialized agency was still pending with the Department of Foreign Affairs
(DFA).
9. Subsequently, however, the government through the DFA granted ICMC
the status of a specialized agency with corresponding diplomatic privileges
and immunities, as evidenced by a Memorandum of Agreement between the
Government and ICMC.
10. ICMC then sought the dismissal of the TUPAS Petition for Certification
Election because of the grant of immunity but such was denied by
respondent Director Calleja who ordered the conduct of a pre-election
conference. ICMC’s two MRs were also denied despite an opinion by DFA
saying the BLR Order violated ICMC’s diplomatic immunity.
11. The Court issued a TRO enjoining the holding of the certification election.
12. The DFA through its Legal Adviser, Justice Coquia of the CA filed a
Motion for Intervention alleging that, as the highest executive department
with the competence and authority to act on matters involving diplomatic
immunity and privileges, and tasked with the conduct of Philippine
diplomatic and consular relations with foreign governments and UN
 organizations, it has a legal interest in the outcome of this case. This was
allowed by the Court.
The IRRI Case
13. The Philippine Government and the Ford and Rockefeller Foundations
signed a Memorandum of Understanding establishing the International Rice
Research Institute (IRRI) at Los Banos, Laguna.
14. It was intended to be an autonomous, philanthropic, tax-free, non-profit,
non-stock organization designed to carry out the principal objective of
conducting "basic research on the rice plant, on all phases of rice
production, management, distribution and utilization with a view to
attaining nutritive and economic advantage or benefit for the people of Asia
and other major rice-growing areas through improvement in quality and
quantity of rice."
15. Initially, it was organized and registered with the SEC as a private
corporation. However, because of PD 1620, it was granted the status,
prerogatives, privileges and immunities of an international organization.
16. The Organized Labor Association in Line Industries and Agriculture
(OLALIA), is a legitimate labor organization with an existing local union,
the Kapisanan ng Manggagawa at TAC sa IRRI (Kapisanan, for short) in
respondent IRRI.
17. The Kapisanan filed a Petition for Direct Certification Election with Region
IV, Regional Office of the Department of Labor and Employment (DOLE).
18. IRRI opposed such invoking PD 1620, as its being an international
organization granted it immunity from all civil, criminal and administrative
proceedings under Philippine laws.
19. Med-Arbiter Garcia upheld the opposition.
20. On appeal, BLR Director Calleja set aside Garcia’s Order and authorized
the calling of a certification election among the rank-and-file employees of
IRRI.
21. On appeal, the Secretary of Labor set aside Director Calleja’s Order and
held that the grant of specialized agency status by the Philippine
Government to the IRRI bars DOLE from assuming and exercising
jurisdiction over IRRI.
ISSUE/s:
The ICMI Case
63. WoN the grant of diplomatic privileges and ummunities to ICMC extends to
immunity from the application of Philippine labor laws – YES
The IRRI Case
64. WoN the Secretary of Labor committed grave abuse of discretion in
dismissing the Petition for Certification Election filed by Kapisanan – NO
Reasons for both: …because the raison d'etre for the immunities is the assurance of
unimpeded performance of their functions by the agencies concerned. The grant of
immunity from local jurisdiction to ICMC and IRRI is clearly necessitated by their
international character and respective purposes. The objective is to avoid the danger
of partiality and interference by the host country in their internal workings.
RULING: WHEREFORE, in G.R. No. 85750 (the ICMC Case), the Petition is
GRANTED, the Order of the Bureau of Labor Relations for certification election is
SET ASIDE, and the Temporary Restraining Order earlier issued is made
PERMANENT.
RATIO:
The ICMI Case
253. ICMC believes its grant of immunity extends to the application of labor
laws and it cited:
a. The MOA with the Phil. Government giving it the status of a specialized
agency
b. The Convention on the Privileges and Immunities of Specialized
Agencies, adopted by the UN General Assembly on 21 November 1947
and concurred in by the Philippine Senate
c. Art. II Sec. 2 of the Constitution
254. Director Calleja, on the other hand, with whom the SolGen agrees, cites
State policy and Philippine labor laws to justify its Order, particularly Arts.
II Sec. 18 and III Sec. 8 of the Constitution, and Arts. 243 and 246 of the
Labor Code.
The IRRI Case
255. Kapisanan contends that Article 3 of Pres. Decree No. 1620 granting IRRI
the status, privileges, prerogatives and immunities of an international
organization, invoked by the Secretary of Labor, is unconstitutional in so far
as it deprives the Filipino workers of their fundamental and constitutional
right to form trade unions for the purpose of collective bargaining as
enshrined in the 1987 Constitution.
For both cases
256. There can be no question that diplomatic immunity has been granted to both
organizations.
257. The term “international organization” is generally used to describe an
organization set up by agreement between two or more states.
258. Under contemporary international law, such are endowed with some degree
of international legal personality, such that they are capable of exercising
specific rights, duties and powers. They are organized mainly as a means for
conducting general international business in which the member states have
an interest.
259. United Nations, for instance, is an international organization dedicated to
the propagation of world peace.
260. Specialized agnecies are international organizations having functions in
particular fields. The rapid growth of international organizations under
 contemporary international law has paved the way for the development of right to self-organization.
the concept of international immunities. 269. The immunity granted being "from every form of legal process except in so
261. There are basically three propositions underlying the grant of international far as in any particular case they have expressly waived their immunity," it
immunities to international organizations. These principles, contained in the is inaccurate to state that a certification election is beyond the scope of that
ILO Memorandum are stated: immunity for the reason that it is not a suit against ICMC.
a. International institutions should have a status which protects them against 270. A certification election cannot be viewed as an independent or isolated
control or interference by any one government in the performance of process. It could tugger off a series of events in the collective bargaining
functions for the effective discharge of which they are responsible to process together with related incidents and/or concerted activities, which
democratically constituted international bodies in which all the nations could inevitably involve ICMC in the "legal process," which includes "any
concerned are represented
b. No country should derive any national financial advantage by levying
penal, civil and administrative proceedings."
fiscal charges on common international funds 271. The eventuality of Court litigation is neither remote and from which
c. The international organization should, as a collectivity of States members, international organizations are precisely shielded to safeguard them from
be accorded the facilities for the conduct of its official business the disruption of their functions. Clauses on jurisdictional immunity are said
customarily extended to each other by its individual member States to be standard provisions in the constitutions of international Organizations.
262. The raison d'etre for these immunities is the assurance of unimpeded "The immunity covers the organization concerned, its property and its
performance of their functions by the agencies concerned. assets. It is equally applicable to proceedings in personam and proceedings
263. The grant of immunity from local jurisdiction to ICMC and IRRI is clearly in rem."
necessitated by their international character and respective purposes. The
objective is to avoid the danger of partiality and interference by the host
country in their internal workings.
264. The exercise of jurisdiction by the Department of Labor in these instances
would defeat the very purpose of immunity, which is to shield the affairs of
international organizations, in accordance with international practice, from
political pressure or control by the host country to the prejudice of member
States of the organization, and to ensure the unhampered performance of
their functions.
265. ICMC’s and IRRI’s immunity from local jurisdiction by no means deprives
labor of its basic rights, which are granted by Articles II Sec. 18, III Sec. 8,
XIII Sec. 3 of the Constitution and implemented by Articles 243 and 246 of
the Labor Code.
266. For ICMC employees are not without recourse whenever there are disputes
to be settled. Section 31 of the Convention on the Privileges and Immunities
of the Specialized Agencies of the United Nations provides that "each
specialized agency shall make provision for appropriate modes of
settlement of: (a) disputes arising out of contracts or other disputes of
private character to which the specialized agency is a party."
267. Neither are the employees of IRRI without remedy in case of dispute with
management as, in fact, there had been organized a forum for better
management-employee relationship as evidenced by the formation of the
Council of IRRI Employees and Management (CIEM) wherein "both
management and employees were and still are represented for purposes of
maintaining mutual and beneficial cooperation between IRRI and its
employees."
268. The existence of this Union factually and tellingly belies the argument that
Pres. Decree No. 1620, which grants to IRRI the status, privileges and
immunities of an international organization, deprives its employees of the
 030 Liang v. People (Gonzales)
January 28, 2000 | Ynares-Santiago, J. | Diplomatic immunity
PETITIONER: Jeffrey Liang (Huefeng)
RESPONDENT: People of the Philippines
SUMMARY: Liang is an economist working with ADB. He allegedly uttered
defamatory words against fellow ADB worker. He was charged before MeTC with
two counts of oral defamation. He was then arrested but he was subsequently
released to custody of ADB Security Officer after posting bail. The following day,
MeTC judge received an office of protocol from DFA stating that Liang is covered
by immunity from legal process per agreement between ADB and Philippine
Government. MeTC without notice to prosecution dismissed the two criminal cases.
RTC reversed the MeTC ruling and ordered MeTC to enforce the warrant of arrest.
Liang now argues before the SC that he is covered by immunity under the
agreement.
The issue is WoN Liang can be held liable for alleged offense despite alleged
immunity. Yes. Under the Vienna Convention on Diplomatic Relations, a diplomatic
agent, assuming Liang is such, enjoys immunity from criminal jurisdiction of the
receiving state except in the case of an action relating to any professional or
commercial activity exercised by the diplomatic agent in the receiving state outside
his official functions. Slandering a person could not possibly be covered by the
immunity agreement because our laws do not allow the commission of a crime, such
as defamation, in the name of official duty.
DOCTRINE: The immunity cannot cover the commission of a crime such as
slander or oral defamation in the name of official duty.
FACTS:
1. Liang is an economist working with the Asian Development Bank (ADB).
2. For allegedly uttering defamatory words against fellow ADB worker Joyce
Cabal, he was charged before MeTC Mandaluyong City with two counts of
grave oral defamation.
3. Liang was arrested by virtue of a warrant issued by the MeTC.
4. After fixing Liang’s bail at P2,400.00 per criminal charge, MeTC released
him to the custody of the Security Officer of ADB.
5. The next day, the MeTC judge received an "office of protocol" from the
DFA stating that Liang is covered by immunity from legal process under
Section 45 of the Agreement between the ADB and the Philippine
Government regarding the Headquarters of the ADB in the country.
6. Based on the said protocol communication Liang is immune from suit, the
MeTC judge without notice to the prosecution dismissed the two criminal
cases.
7. People filed MR, which was denied.
8. People filed petition for certiorari and mandamus before RTC, which
reversed MeTC decision. RTC ordered MeTC to enforce the warrant of
arrest it earlier issued.
9. Liang filed MR, which was denied.
10. Thus, this present petition. Liang argues that he is covered by immunity
under the Agreement.cda
ISSUE:
1. WoN Liang can be held liable for the alleged offense despite alleged
immunity – YES. The immunity cannot cover the commission of a crime
such as slander or oral defamation in the name of official duty.
RULING: Petition DENIED.
RATIO:
1. First, courts cannot blindly adhere and take on its face the communication
from the DFA that Liang is covered by any immunity.
2. The DFA's determination that a certain person is covered by immunity is
only preliminary which has no binding effect in courts.
3. The mere invocation of the immunity clause does not ipso facto result in the
dropping of the charges.
4. Second, under Section 45(a) of the Agreement,24 the immunity mentioned
therein is not absolute, but subject to the exception that the act was done in
"official capacity."
5. The prosecution should have been given the chance to rebut the DFA
protocol and it must be accorded the opportunity to present its controverting
evidence, should it so desire.
6. Third, slandering a person could not possibly be covered by the immunity
agreement because our laws do not allow the commission of a crime, such
as defamation, in the name of official duty.
7. The imputation of theft is ultra vires and cannot be part of official functions.
8. It is well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his
act done with malice or in bad faith or beyond the scope of his authority or
jurisdiction.
9. Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic
agent, assuming Liang is such, enjoys immunity from criminal jurisdiction
of the receiving state except in the case of an action relating to any
professional or commercial activity exercised by the diplomatic agent in the
receiving state outside his official functions. The commission of a crime is
not part of official duty.
Lacierda vs. Platon (Gueco)
August 31, 2005 | Carpio-Morales, J. | SEAFDEC immune from suit
24 Officers and staff of the Bank including for the purpose of this Article experts and consultants
performing missions for the Bank shall enjoy… immunity from legal process with respect to acts
performed by them in their official capacity except when the Bank waives the immunity
PETITIONER: Sps. Rodrigo Lacierda and Dr. Erlinda Cruz-Lacierda, Sps.
Jessica and Renan Saleinte, Ruby Salde and Armniel Sim
RESPONDENTS: Dr. Rolando Platon, Agnes Lacuesta, Dan Baliao, Amelita
Subosa, Merlinda Junion, Teresita Hilado, Demetrio Estenor, Salvador, Rex
Tillo, Teresita Natividad, Teresa Mallare, Jocelyn Coniza and Nelda Ebron
SUMMARY:
Lacierda et al. are employees of SEAFDEC, an international agency that is
immune from suits because it was clothed with diplomatic immunity and enjoys
functional independence and freedom from control of the state in whose
territory its office is located. Meanwhile, respondents Platon et al. are officers
and working with the management of SEAFDEC, ACQ.
Sometime in 2000, JICA and SEAFDEC entered into a MOA whereby the
former considered the Department of Agriculture as qualified in providing the
necessary services in implementing JICA’s training program.
Lacierda et. al were selected by SEAFDEC to take part in JICA’s training
program. Since the program required them to go to different places, they were
given a cash advance, which is subject to liquidation (that is, they have to
provide receipts for all their expenses, and any excess will be given back to
JICA). Upon the conclusion of the training program, Lacierda, et al. submitted
to SEAFDEC documents in support of their liquidation of cash advances and
claim for reimbursement of expenses. However, an audit of the same showed
that the “hotel receipts submitted were much higher that the actual amount that
they paid on accommodation.” Thus, Lacierda, et al. were terminated for
misrepresentation or false statements with intent to gain or take advantage and
fraudulent machination for financial gain.
More than a year later, Lacierda, et al. filed a complaint against Platon, et al.
They claim that the immunity of suit of SEAFDEC is irrelevant since they
(Lacierda et al) are suing Platon et al. in their individual and personal capacities
for their commission of malicious, oppressive and inequitable actionable acts.
They also prayed to be restored and returned to their respective work/positions
in SEAFDEC; to be given the salaries, benefits and other privileges; to be
awarded actual damages by reason of the deprivation of the salaries
and benefits they should have received; and to be paid moral damages.
The complaint was dismissed by the RTC Iloilo for want of jurisdiction over the
subject matter and also for lack of jurisdiction over the person of Platon, et al.
ISSUE: WoN the suit is one against Platon et. al—NO, THE SUIT IS REALLY
ONE AGAINST SEAFDEC BECAUSE THE RELIEF SOUGHT FOR
CANNOT BE GRANTED BY PLATON ET AL IN THEIR PERSONAL
CAPACITIES. RULING: A perusal of the complaint would show that nothing
in the averments would indicate that Platon et al. acted in their personal
capacities or beyond the scope of their official functions. Lacierda et al. merely
made general allegations to that effect. In reality, their allegations pertain to acts
performed by Platon et al in their official capacity; acts which could not have
been done had they acted in their personal capacities. At most it is mere lapses
in investigation but still their actions were work related and within the scope of
their functions as officials of SEAFDEC.
 As such, the suit against them is, in
reality, a suit directed against SEAFDEC. The reliefs sought for by the Lacierda
et al is directed at the SEAFDEC and not to the defendants who cannot perform
the same in their personal capacity.
DOCTRINE:
Being an action against SEAFDEC, an international agency immune from suit,
Lacierda et al’s case cannot prosper.
FACTS:
1. Rodrigo Lacierda, Erlinda Cruz-Lacierda, Jessica and Renan Saliente, Ruby
Salde and Armniel Sim (“Lacierda, et al.”) are all employees/officers of
Southeast Asian Fisheries Development Center (“SEAFDEC”), an
international agency that is immune from suits, it being clothed with
diplomatic immunity, and enjoys functional independence and freedom
from control of the state in whose territory its office is located.
2. Meanwhile, respondents “Platon et al.” are officers and with the
management of SEAFDEC, Aqua Culture Development (“ACQ”), an
international organization composed of governments of Southeast Asia
created by virtue of a treaty of which the Philippines is a signatory.
3. On August 21, 2000, Japan International Cooperation Agency (JICA) and
SEAFDEC, represented by respondent Dr. Rolando R. Platon, Chief of its
Aquaculture Department, entered into a MOA whereby JICA considered the
Department of Agriculture (DA) as qualified in providing it the necessary
services in implementing JICA’s Third Country Training Programme on
Responsible Aquaculture Development.
4. Lacierda, et al. were selected by SEAFDEC to take part in the training
program. They were given cash advances for this purpose but subject to
liquidation (i.e. they have to submit a statement of expenditures containing
the itemized breakdown of all expenses incurred, attaching therewith all
copies of supporting documents and evidences and receipts certifying the
said expenditures (original copies will be kept by SEAFDEC). In case there
will be an excess in the amount consigned, the excess amount will
be returned to JICA.
5. After the training program was concluded, Lacierda, et al. submitted to
SEAFDEC documents in support of their liquidation of cash advances and
claim for reimbursement of expenses. However, an audit of the same
showed that the “hotel receipts submitted were much higher that the actual
amount that they paid on accommodation.” Thus, Lacierda, et al. were
terminated for misrepresentation or false statements with intent to gain or
take advantage and fraudulent machination for financial gain.
6. More than a year later, Lacierda, et al. filed a complaint against Platon, et
al. They claim that the immunity of suit of SEAFDEC is irrelevant since
they (Lacierda et al) are suing Platon et al. in their individual and personal
capacities for their commission of malicious, oppressive and inequitable
actionable acts. They also prayed to be restored and returned to their
 respective work/positions in SEAFDEC; to be given the
salaries, benefits and other privileges; to be awarded actual damages by
reason of the deprivation of the salaries and benefits they should have
received; and to be paid moral damages.
7. The complaint was dismissed by the RTC Iloilo for want of jurisdiction
over the subject matter and also for lack of jurisdiction over the person of
Platon, et al.
8. Court also ruled that the allegations and reliefs sought by Lacierda et al (to
be restored to their positions in SEAFDEC) clearly indicate that their cause
of action arose out of an employer-employee relationship. Hence, the case
falls under the original and exclusive jurisdiction of the Labor Arbiter and
not the RTC.
assuming that it could validly acquire jurisdiction over SEAFDEC.
6. When Lacierda et al prayed to be restored and returned to their
respective work/positions in SEAFDEC; to be given the salaries, benefits
and other privileges; to be awarded actual damages by reason of the
deprivation of the salaries and benefits they should have received; and to be
paid moral damages, these reliefs indicate a cause of action which arose
out of an employer-employee relationship which under the law, is
under the original and exclusive jurisdiction of the Labor Arbiter and
not the Regional Trial Court.

ISSUES:
4. WoN the suit is one against Platon et. al—NO, THE SUIT IS REALLY
ONE AGAINST SEAFDEC BECAUSE THE RELIEF SOUGHT FOR
CANNOT BE GRANTED BY PLATON ET AL IN THEIR PERSONAL
CAPACITIES.

RULING: WHEREFORE, the petition is hereby DENIED. The assailed Orders of

October 25, 2002 and January 14, 2003 of the Regional Trial Court of Iloilo, Branch
36 are hereby AFFIRMED.

RATIO:

REGARDING IMMUNITY FROM SUIT (RELEVANT TOPIC)

1. A perusal of the complaint would show that nothing in the averments would
indicate that Platon et al. acted in their personal capacities or beyond the
scope of their official functions. Lacierda et al. merely made general
allegations to that effect. In reality, their allegations pertain to acts
performed by Platon et al in their official capacity; acts which could not
have been done had they acted in their personal capacities. At most it is
mere lapses in investigation but still their actions were work related and
within the scope of their functions as officials of SEAFDEC.

2. As such, the suit against them is, in reality, a suit directed against
SEAFDEC. The reliefs sought for by the Lacierda et al is directed at
the SEAFDEC and not to the defendants who cannot perform the same
in their personal capacity.
3. Being an action against SEAFDEC, an international agency immune from
suit, Lacierda et al’s case cannot prosper.

REGARDING JURISDICTION:

4. The regular courts have no jurisdiction because this is an action arising

from an employer-employee relationship.
5. The Court has no jurisdiction over the subject matter of the case even
 BATCH 6 & 7
001 TEXACO v. LIBYA (Buenaventura edited by Gustilo)
1977 | Jean Dupuy | Sovereignty & the nature of measures of nationalization
PETITIONER: Texaco Overseas Petroleum Company and California Asiatic Oil
Company
RESPONDENTS: Libyan Government
SUMMARY: A decree to nationalize all Texaco’s rights, interest and property in
Libya was promulgated by Libya. This action of the Libyan Government led
Texaco to request for arbitration, but it was refused by Libya. A sole arbitrator
was appointed by the International Court of Justice on Texaco’s request. Libya
contests that its acts were functions of their sovereignty. The Libyan Governent
further contends that the plaintiff companies could not invoke the procedure
provided for in Clause 28 of the Deeds of Concession on the ground that
nationalization terminated not only the agreement which linked them to the
Libyan State but also their legal status. The issue in this case is WoN
nationalization terminated the agreement between the plaintiff companies and the
Libyan State as well as terminate the legal status of the plaintiff companies?- NO
The Libyan State can validly contract with subjects of foreign law. Not only has
the Libyan State freely undertaken commitments but also the fact that this clause
stabilizes the petroleum legislation & regulations as of the date of the execution of
the agreement does not affect in principle the legislative & regulatory sovereignty
of Libya. Libya reserves all its prerogatives to issue laws & regulations in the
field of petroluem activities in respect of national or foreign persons with which it
has not undertaken such as commitment. In entering into concession contracts
with the plaintiffs, the Libyan State did not alienate but exercised its sovereignty,
and ensured that it would not be affected in principle, the limitations accepted by
it in respect of the exercise of certain of its prerogatives having been accepted
only in particular areas and for a specific period of time.
DOCTRINE:
The recognition by international law of the right to nationalize is not sufficient
ground to empower a State to disregard its commitments because the same law
also recognizes the power of a Sate to commit itself internationally, especially by
accepting the inclusion of stabilization clauses in a contract into with a foreign
private party. Thus, in respect of international law of contracts, a nationalizaton
cannot prevail over an internationalized contract, containing stabilization clauses
entered into between a State and a foreign private company.
FACTS:
7. On September 1, 1973 and-February 11, 1974, Libya promulgated decrees
purporting to nationalize all of the rights, interests and property of Texaco
Overseas Petroleum Company and California Asiatic Oil Company in Libya
granted to them jointly under 14 Deeds of Concession.
8. The Companies objected to the decrees and claimed that such action by the
Libyan Government violated the terms and conditions of their Deeds of
Concession.
9. Exercising their rights under their Deeds of Concession, the Companies
requested arbitration and appointed an arbitrator. The Libyan Government
refused to accept arbitration and did not appoint an arbitrator.
10. Pursuant to the arbitration provision in their Deeds of Concession, the
Companies requested the President of the International Court of Justice to
appoint a sole arbitrator to hear and determine the disputes. The Libyan
Government opposed such request and filed a memorandum with the
President contending, inter alia, that the disputes were not subject to
arbitration because the nationalizations were acts of sovereignty.
11. After considering the Libyan Government's objections, the President of the
International Court of Justice, on December 18, 1974, appointed Rend-Jean
Dupuy, as the Sole Arbitrator.
12. The Sole Arbitrator first resolved the procedural aspects of the Arbitration
and then determined that the initial stage of the Arbitration should be
devoted to the question whether he had jurisdiction to hear and determine
the disputes. He invited the parties to submit memorials.
13. Next, the Libyan Government contends that the plaintiff companies
could not invoke the procedure provided for in Clause 28 of the Deeds
of Concession on the ground that nationalization terminated not only
the agreement which linked the plantiff companies to the Libyan State
but also the legal status of these companies.
ISSUE: WoN nationalization terminated the agreement between the plaintiff
companies and the Libyan State as well as terminate the legal status of the plaintiff
companies?- NO because nationalization cannot purport to destory the existance
of these companies as legal entities.
RULING: The Sole Arbitrator held that (a) the Deeds of Concession are binding on
the parties, (b) by adopting the measures of nationalization, the Libyan Government
breached its obligations arising under the Deeds of Concession and (c) the Libyan
Government is legally bound to perform the Deeds of Concession and to give them
their full force and effect.
RATIO:
12. Libya was found to have breached its obligations under the Deeds of
Concessions and was also legally bound to perform in accordance with their
terms.
13. Though international law involves subjects of a diversified nature, legal
international capacity is not solely attributable to a state. A private
contracting party, unlike a state, has only a limited capacity and is limited to
invoke only those rights that he derives from his contract.
14. Though the contract itself deferred to Libyan law, the court noted that
Libyan law does not preclude the application of international law, but that
 the two must be combined in order to verify that Libyan law complies with fact that this clause stabilizes the petroleum legislation & regulations as
international law. Even though the right of a state to nationalize is of the date of the execution of the agreement does not affect in principle
recognized by international law, this right in itself is not a sufficient the legislative & regulatory sovereignty of Libya. Libya reserves all its
justification not to regard its contractual obligations prerogatives to issue laws & regulations in the field of petroluem
15. After reviewing the legal effect in international law of the United Nations activities in respect of national or foreign persons with which it has not
General Assembly resolutions concerning permanent sovereignty over undertaken such as commitment.
natural wealth and resources, concluded that such resolutions could not be 25. The recognition by international law of the right to nationalize is not
used by the state to violate its contractual obligations in commercial sufficient ground to empower a State to disregard its commitments
transactions. because the same law also recognizes the power of a Sate to commit
16. In their deed of concession, the parties agreed that the concession shall be itself internationally, especially by accepting the inclusion of
governed by and interpreted in accordance with the principles of law of stabilization clauses in a contract into with a foreign private party.
Libya common to the general principles of law. Thus, in respect of international law of contracts, a nationalizaton
17. The arbitrator concluded that the nature of the deeds of concession cannot prevail over an internationalized contract, containing
agreement made it an internationalized contract. stabilization clauses entered into between a State and a foreign private
18. The tribunal cited various jurisprudence saying that the parties have company.
autonomy to agree as to what law will apply to them in case of arbitration, 26. In the present case, in entering into concession contracts with the
and that their deed of concession is essentially a contract that is binding plaintiffs, the Libyan State did not alienate but exercised its
between the two parties sovereignty, and ensured that it would not be affected in principle, the
19. In respect of international law of contracts, a nationalization cannot prevail limitations accepted by it in respect of the exercise of certain of its
over an internationalized contract containing stabilization clauses entered prerogatives having been accepted only in particular areas and for a
into between a State and a foreign private company. specific period of time.
20. Libya wanted to transfer the oil companies’ assets and interests into State 27. Neither the concept of sovereignty nor the nature of nationalization
ownership, that’s why it decreed the nationalization of Texaco. In doing so, measures taken against the plaintiffs’ provides any legal justification
it breached its obligation stated in their Deed of Conscession. for these measures.
21. Injured parties are entitled to restitutio in integrum, the sovereign state is
obliged to perform specifically its contractual obligations with private
foreign investors.
Measures of Nationalizaion
22. Nationalizations do not in principle, produce any extraterritorial effect
and that they cannot, in any case impair or affect the existence of
companies as legal entities which do not have the nationality of the
nationalizing state.
23. The right of a State to nationalize results from international customary
law, established as the result of general practices considered by the
international community as being the law. The exercise of the national
sovereignty to nationalize is regarded as the expression of the State’s
territorial sovereignty. Territorial sovereignty confers upon the state an
exclusive competence to organize as it wishes the economic structures
of its territory and to introduce therein any reforms which may seem to
be desirable to it. It is an essential prerogative of sovereignty for the
constitionally authorized authorities of the State to choose & freely
build an economic & social system. International law recognizes that a
State has this prerogative just as it has the prerogative to determine
freely its political regime & its constituonal institutions.
24. The Libyan State can validly contract with subjects of foreign law. Not
only has the Libyan State freely undertaken commitments but also the
 001 Mavromattis Palestine Consessions Case (Greece v. UK) (Hilario)
August 30, 1924 | Loder, J. | State Responsibility; Jurisdiction
PETITIONER: Greece
RESPONDENTS: UK
SUMMARY: Mavromattis is a Greek national. He was awarded contracts aka
consessions for public works in Palestine, and it had two phases: supplying
electric tramways, electricity, and drinking water to the City of Jerusalem, and
supplying the same things to the City of Jaffa. Mavromattis wasn’t able to
complete phase 1 in Jerusalem because of WWI (force majeure) and he wasn’t
able to complete phase 2 in Jaffa because of newly imposed Turkish legal
requirements. (note: Palestine was originally attached to Turkey). After WWI
Palestine was subjected to British rule (with the UK being the “Mandatory”—
this will make sense later in the ratio), and so Mavromattis went back to
Palestine to enforce his contract. To his surprise, the British government granted
to a certain Mr. Rutenberg a concession for works, which appeared to overlap
those granted to Mr. Mavrommatis. And so he now seeks the protection of the
Greek government. When the British government received the application to the
PCIJ, it filed an objection to the Court’s jurisdiction.
The PCIJ laid down conditions for vaild exercise of jurisdiction as follows: (a)
that the question must constitute a dispute between the Mandatory (like how UK
is the Mandatory for Palestine) and another Member of the League of Nations;
(b) that this dispute cannot be settled by negotiation, and (c) that it relates to the
interpretation or application of the clauses of the Article 26 of the Mandate for
Palestine (Contract between UK and Palestine about their governance). The
Court ruled that all are present. PART OF RATIO RELATED TO STATE
RESPONSIBILITY:(a) is fulfilled. There exists a dispute, and Greece is a
Member of the League of Nations. Although the dispute originated in an injury
to a private interest, Greece is asserting a right of its own, namely the right to
ensure that the rules of international law are respected as regards its
subjects. Moreover, once a State has taken up a case on behalf of one of its
subjects before an international tribunal, in the eyes of the latter, the State
is sole claimant. It is an elementary principle of international law that a State is
entitled to protect its subjects, when injured by acts contrary to
international law committed by another State, from whom they have been
unable to obtain satisfaction through the ordinary channels. By taking up the
case of one of its subjects and by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own rights -
its right to ensure, in the person of its subjects, respect for the rules of
international law.
DOCTRINE: It is a State’s right and duty to ensure that the rules of
international law are respected as regards its subjects.
FACTS:
237. Mavromattis is a Greek national. He was awarded contracts aka consessions
for public works in Palestine, and it had two phases: supplying electric
tramways, electricity, and drinking water to the City of Jerusalem, and
supplying the same things to the City of Jaffa.
238. Mavromattis wasn’t able to complete phase 1 in Jerusalem because of WWI
(force majeure) and he wasn’t able to complete phase 2 in Jaffa because of
newly imposed Turkish legal requirements. (note: Palestine was originally
attached to Turkey).
239. After WWI Palestine was subjected to British rule, and so Mavromattis
went back to Palestine to enforce his contract.
240. To his surprise, the British government granted to a certain Mr. Rutenberg a
concession for works, which appeared to overlap those granted to Mr.
Mavrommatis.
241. And so he now seeks the protection of the Greek government.
242. When the British government received the application to the PCIJ, it filed
an objection to the Court’s jurisdiction.
ISSUE/s:
65. WoN the PCIJ has jurisdiction over the matter– YES, because all elements
are present.
RATIO:
272. Although the dispute is first between a private person and a State
(Mavrommatis and UK), subsequently, the Greek Government took up th e
case. Hence, the dispute entered a new phase and entered the domain of
international law.
273. The conditions for vaild exercise of jurisdiction are: (a) that the question
must constitute a dispute between the Mandatory (like how UK is the
Mandatory for Palestine) and another Member of the League of Nations; (b)
that this dispute cannot be settled by negotiation, and (c) that it relates to the
interpretation or application of the clauses of the Article 26 of the Mandate
for Palestine (Contract between UK and Palestine about their governance).
274. (a) is fulfilled. There exists a dispute, and Greece is a Member of the
League of Nations. Although the dispute originated in an injury to a private
interest, Greece is asserting a right of its own, namely the right to ensure
that the rules of international law are respected as regards its subjects.
Moreover, once a State has taken up a case on behalf of one of its
subjects before an international tribunal, in the eyes of the latter, the
State is sole claimant.
275. It is an elementary principle of international law that a State is entitled to
protect its subjects, when injured by acts contrary to international law
committed by another State, from whom they have been unable to obtain
satisfaction through the ordinary channels. By taking up the case of one of
its subjects and by resorting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting its own rights - its
right to ensure, in the person of its subjects, respect for the rules of
international law.
276. (b) is also fulfilled. Negotiations don’t need to be lengthy; the fact that they
were only a continuation of the previous private negotiations is enough to
justify that it can’t be settled by negotiation (it’s like they’re going around
 circles nalang), and secondly on the views of the Parties—who are
doubtless in the best position to judge as to political reasons which may
prevent the settlement of a dispute by diplomatic negotiations.
277. (c ) is also fulfilled. Article 26 lays down that the dispute, which may be of
any nature, must relate to the interpretation or application of the clauses of
the Mandate. The Mavrommatis contracts in themselves are outside the
scope of the Mandate, but because of the overlapping of rights granted to
Rutenberg and Mavrommatis, it is a dispute within this Court’s jurisdiction.
(side note but I don’t think this is relevant to our topic: the confusing part
they’re asking the PCIJ to interpret is “public ownership or control”,
whether to adopt the english or french version of the contract. The court
decided to use the english version because it was the original one and the
one that seems to reflect the intention of the parties the most.)
ADMINISTRATIVE DECISION V (US V. GERMANY) (HIRANG)
October 31, 1924 |ICJ| State Responsibilities
PETITIONER: UNITED STATES OF AMERICA
RESPONDENTS: GERMANY
SUMMARY: Under the Treaty of Berlin, Germany is to indemnify those
American Citizens which suffered loss or injury during the war. Both States
wanted to determine the kinds of claims the Commission has jurisdiction over in
order to know what can be enforced against Germany. It has been the custom of
the Government of the United States to observe the rule that the basis for
diplomatic intervention in presenting claims internationally is that the claims
should be of the nationality of the government presenting them. (Only
American claims can be enforced by the US government) However, the US
Congress issued the Knox-Porter Resolution which provided that Germany
must satify all the claims not only the American Claims but also all those
which are not American Citizens but were entitled to the protection of the
United States and those who did not owe allegiance to the USA when the
loss or injury occurred but became nationals of USA before the
Congressional resolution was adopted. Germany asserts that such
conditions were not in the treaty of Berlin and that although Germany has
agreed to pay other claims not under the the terms of the Treaty, such other
claims are in line with the provisions of the Treaty of Berlin. The question
before the court is what claims are under the jurisdiction of the Commission and
can be enforced against Germany. The case provided for 3 main kinds of claims:
1) Claims Wholly Transferred to Foreign Nationals
-Because of the fact that even before the signing of the Treaty of Berlin, it has
been the custom of both USA and Germany to refuse to espouse claims after
the claimant had become, or the claim itself had been transferred to, a
foreign national, it follows that if the claims are wholly transferred to foreign
nationals they do not have American status therefore not under the jurisdiction of
the Commission.
2) Claims Not Wholly Transffered to Foreign Nationals
-In cases where a portion of the claim have American Status, only the American
portion shall be under the jurisdiction of the Commission. The question as to
what constitutes the American portion shall be determined by the facts of the
case.
3) Claims Espoused by the United States of America
- As for the claims espoused (See ratio #8) by the USA, even if such were
transferred to foreign nationals, they remain to be American in status therefor, it
is under the jurisdiction of the Commission. Such is in line with the international
rule that “The injury to a national is an injury to the nation and the change of
nationality of the claimant or the claim does not affect the original injury to the
nation for which it is entitled to claim compensation”
DOCTRINE: The injury to a national is an injury to the nation and the change
of nationality of the claimant or the claim does not affect the original injury to
the nation for which it is entitled to claim compensation.
FACTS:
7. The non-ratification by the United States of America of the Peace Treaty of
Versailles concluded between the Allied Powers and Germany on June 28,
1919, led to the Treaty signed at Berlin on August 25, 1921, restoring
friendly relations between the United States and Germany.
8. Under the Treaty of Berlin, Germany is to indemnify those American
Citizens which suffered loss or injury during the war.
9. The Commission has been asked by the Government of both the United
States and Germany to announce the principles and rules of decision which
will be applied in determining the jurisdiction of the Commission in
groups of cases in which the claimant did not acquire American citizenship
until after the date of the loss or injury for which damages are claimed, or in
which the claimant lost American citizenship subsequent to the date of such
loss or injury, or in which the loss or injury for which the claim arose was
sustained by an American citizen but the claim has since been transferred,
in whole or in part, to foreign nationals, through assignment, succession, or
otherwise.
10. The generally accepted basis for diplomatic intervention in presenting
claims internationally is that the claims should be of the nationality of
the government presenting them, and in order to establish such nationality
it is, as a rule, necessary to show that the original claimants were at the
time the claim accrued either citizens of the nationality of that
government or were otherwise entitled to its protection, and that they, or
their successors in interest, have had the same status continuously
thereafter until the claims were espoused by their government.
11. It has been the custom of the Government of the United States to observe
these requirements in dealing with claims through diplomatic channels.
These instructions are understood to embody the general policy and position
of the Government of the United States in regard to all such claims
12. US however contends that under the Knox-Porter Resolution (A resolution
enacted by their Congress), Germany must satisfy “all claims” of all
persons, wheresoever domiciled, who owe permanent allegiance to the
United States of America and who have suffered", through the acts of
 Germany or its agents "since July 31, 1914, loss, damage, or injury to
their persons or property", etc.
13. The Resolution became problematic because it now includes all the those
which are not American Citizens but were entitled to the protection of the
United States and those who did not owe allegiance to the USA when the
loss or injury occurred but became nationals of USA before the
Congressional resolution was adopted.
14. Germany asserts that the meaning now attributed to this resolution is so
obscure and uncertain that it could not be understood without explanation,
and that this meaning was not even suggested in the negotiations resulting
in the Treaty of Berlin. Germany also asserts that, although she accepted
liability under the Treaty of Berlin for many claims for which, apart from
that Treaty, she would not have been liable, nevertheless this liability is
limited by the terms of the Treaty and obscure and uncertain meanings
should not be read into the Treaty for the purpose of enlarging that liability.
ISSUE / QUESTION: HOW WOULD THE CLAIMS BE TREATED/WHAT
KIND OF CLAIMS DO THE COMMISSION HAVE JURISDICTION OVER?
– FOR THOSE CLAIMS WHICH WERE WHOLLY TRANSFERRED TO
FOREIGN NATIONALS SUCH CANNOT BE ENFORCED AGAINST
GERMANY THEREFOR IT IS NOT UNDER THE JURISDICTION OF THE
COMMISSION. FOR THOSE WHICH ONLY A PART OR INTEREST OF THE
CLAIM WAS TRANSFERRED TO FOREIGN NATIONAL, ONLY THE
AMERICAN CLAIM CAN BE ENFORCED UPON GERMANY THUS, UNDER
THE JURISDICTION OF THE COMMISSION. FOR THOSE CLAIMS WHICH
ARE ESPOUSED BY USA, EVEN IF TRANSFERRED TO FOREIGN
NATIONALS CAN BE ENFORCED UPON GERMANY AND THUS UNDER
THE COMMISSION’S JURISDICTION
RULING: FOR THOSE CLAIMS WHICH WERE WHOLLY TRANSFERRED
TO FOREIGN NATIONALS SUCH CANNOT BE ENFORCED AGAINST
GERMANY THEREFOR IT IS NOT UNDER THE JURISDICTION OF THE
COMMISSION. FOR THOSE WHICH ONLY A PART OR INTEREST OF THE
CLAIM WAS TRANSFERRED TO FOREIGN NATIONAL, ONLY THE
AMERICAN CLAIM CAN BE ENFORCED UPON GERMANY THUS, UNDER
THE JURISDICTION OF THE COMMISSION. FOR THOSE CLAIMS WHICH
ARE ESPOUSED BY USA, EVEN IF TRANSFERRED TO FOREIGN
NATIONALS CAN BE ENFORCED UPON GERMANY AND THUS UNDER
THE COMMISSION’S JURISDICTION
RATIO:
1. The right of a government to espouse a claim arises on the general principle
that the injury to a national is an injury to the nation and the change of
nationality of the claimant or the claim does not affect the original injury to
the nation for which it is entitled to claim compensation
2. In principle, therefore, the right to espouse a claim may continue not-
withstanding the change of the nationality of the claim or of the
claimant, but in practice, as above stated, governments do not as a rule
espouse claims in those circumstances.
Claims Wholly Transferred to Foreign Nationals:
3. At the time the Treaty of Berlin was entered into it was the common
practice of both the United States and Germany to refuse to espouse
claims after the claimant had become, or the claim itself had been
transferred to, a foreign national.
4. This having been their common practice at the time the Treaty was made,
and the Treaty being silent on the subject, it must be assumed that in
entering into that Treaty both Governments it understood and expected
that this practice would be applied with respect to claims under that
Treaty
5. It follows, therefore, that under the terms of the Treaty of Berlin, if the
entire interest in a claim, which had not been espoused by the United
States, has been completely transferred to foreigners, so that the sole
beneficiaries of the claim are aliens, it does not have the status of
American nationality which is essential to bring it within the
jurisdiction of this Commission.
Claims Not Wholly Transffered to Foreign Nationals
6. In cases where only a share or part interest in the claim has been transferred
to foreign nationals, and some American interest therein remains, as for
example in cases in which by the death of an American claimant a share or
beneficial interest in the claim, or its proceeds, has passed by succession to
a foreign national but the claim forms part of the decedent's estate held in
trust or under the administration of American nationals, or in cases in which
an American national has a beneficial interest in or lien upon a claim which
has passed by assignment or otherwise to a foreigner, the treatment is
different.
7. Under the Treaty of Berlin, as already interpreted, therefore, claims of
American nationality in their origin in which only a share or part
interest has passed to foreign nationals before the claim is espoused by
the United States come within the jurisdiction of this Commission to the
extent of whatever American interest remains therein. The question of what
American interest remains in any of these cases, and the extent of such
interest, is reserved for decision on the facts in each case.
Claims Espoused by the United States of America (Espoused -to marry see ratio #8)
8. The use of the word "espousal" indicates, the espousal of a claim by the
Government establishes somewhat the same legal relationship as
marriage in the days when the property of the wife became the property of
the husband and the wife took the name of the husband. So also if an alien
interest enters into the claim after espousal it rests only with the
Government to determine whether or not to abandon the claim.
9. These consequences of the espousal of a claim by the Government of the
United States are in conformity with, and give practical application to, the
principle of international law above mentioned, that the basis of the right
of the Government to present a claim internationally is that the injury
to the national is an injury to the nation, for which it is entitled to claim
reparation.
10. Accordingly, when the claim of an American national is espoused by the
Government, it acquires internationally the same status as a claim by the
nation for an injury to itself, and thereafter, so far as Germany is concerned,
must be treated as a claim of American nationality
 003 LFH NEER AND PAULINE NEER (USA) VS. MEXICO (ARIELLE)
October 15, 1926 | State Responsibility
PETITIONER: Nilo Paloma
RESPONDENTS: Danilo Mora, Hilario Festejo, Maxima Salvino, Bryn
Bongbong, and Valentino Sevilla
SUMMARY: The claim is presented by the US against Mexico in behalf of Fay
Neer,, widow, and Pauline Neer, daughter, or Paul Neer, a native American
citizen, who was killed in the vicinity of the village of Guanacevi, State of
Durango, Mexico. The claim is grounded on an assertion of a denial of justice
growing out of the alleged failure of Mexican authorities to take adequate
measures to apprehend and punish the persons who killed Neer. With this,
Paul’s family claims against the Mexican government for an amount of
$100,000 reprsenting the damages they sustained.
The Commission however, held that such claim must be disallowed because the
Mexican authorities were not remiss in their duties. First, the local authorities
on the very night of the tragedy, went to the spot where the killing took place.
The judge also proceeded to make investigations that went on for days, and
arrested suspects. The grounds of liability is limited as to whether there is
convincing evidence either that the authorities administering the Mexican law
acted in bad faith or wilful neglect of their duties; or that they rendered it
impossible for them to properly fulfil their task. Neither is present in this case.
DOCTRINE: The propriety of governmental acts should be put to the test of
international standards, and that the treatment of an alien, in order to constitute
an international delinquency, should amount to an outrage, bad faith, wilful
neglect of duty, or to an insufficiency so far short of international standards that
every reasonable and impartial man would easily recognize its insufficiency.
FACTS:
16. This claim is presented by the US against the United Mexican States in
behalf of L. Fay H. Neer, widow, and Pauline E. Neer, daughter of Paul
Neer, who, at the time of his death, was employed as superintendent of a
mine in the vicinity of Guanacevi, State of Durango, Mexico.
17. In November 1924, when Paul and Fay Neer were proceeding on horseback
from the village of Guanacevi to their home, they were stopped by a
number of armed men who engaged Neer in a conversation, which Fay did
not understand. In the midst of the conversation, bullets seem to have been
exchanged and Paul was killed.
18. An examination of the corpse revealed that three bullets had penetrated his
body. Mrs. Neer was able to furnish but very little information of value in
identifying the men by whom her husband was accosted.
19. It is alleged that on account of his killing, his wife and daughter, who were
American citizens, sustained damages in the sum of $100,000; that the
Mexican authorities showed an unwarrantable lack of diligence or lack of
intelligent investigation in prosecuting the culprits. Therefore, it is
submitted that the Mexican government ought to pay the claimants such
amount.
ISSUE/s:
1. WoN the US can claim against Mexico – NO, because there was no bad
faith or lack of intelligent investigation.
RULING: The Commission accordingly decides that the claim of the United States
is disallowed.
RATIO:
1. As to the nationality of the claim which is challenged, the Commission
decided that the claimants were by birth, and have since remained,
American nationals.
2. As to the alleged lack of diligence or lack of intelligent investigation on the
part of the Mexican authorities, it would seem that in the early morning
after the tragedy, the authorities might have acted in a more vigorous and
effective way than they did.
3. The Commission is mindful that the task of the local Mexican authorities
was hampered by the fact that the only eyewitness of the murder was not
able to give them any information.
4. The Commission also recognizes the difficulty of devising a general
formula for determining the boundary between an international delinquency
of this type and an unsatisfactory use of power included in national
sovereignty.
5. John Bassett Moore observed that he did not “consider it to be practicable to
lay down in advance precise and unyielding formulas by which the question
of a denial of justice may in every instance be determined.”
6. It is immaterial whether the expression “denial of justice” be taken in a
broad sense which confines it to acts of executive and legislative authorities
as well as to acts of the courts, or whether it be used in a narrow sense
which confines it to acts of judicial authorities only.
7. It is the opinion of the Commission that it is possible to go a little further
than Bassett and to hold that the propriety of governmental acts should
be put to the test of international standards, and that the treatment of
an alien, in order to constitute an international delinquency, should
amount to an outrage, bad faith, wilful neglect of duty, or to an
insufficiency so far short of international standards that every
reasonable and impartial man would easily recognize its insufficiency.
8. It is not for an international tribunal such as this Commission to decide,
whether another course of procedure taken by the local authorities at
Guanacevi might have been more effective.
9. On the contrary, the grounds of liability limit its inquiry to whether there is
 convincing evidence either that the authorities administering the Mexican
law acted in bad faith or wilful neglect of their duties; or that Mexican law
rendered it impossible for them properly to fulfil their task.
10. The argument on bad faith is negative by the full record of police and
judicial authorities produced by the Mexican Agent, though the
Commission feels bound to state once more that in its opinion better
methods might have been used.
11. From this record it appears that the local authorities on the very night of the
tragedy, went to the spot where the killing took place and examined the
corpse. The judge also proceeded to the examination of some of the
witnesses, among them Fay Neer. Investigations were held for days, arrests
were made of suspects. The Commission is not prepared to hold that the
Mexican authorities have shown lack of diligence or intelligent
investigation in apprehending and punishing the culprits.

Separate Opinion (he just agreed with everything lol)

1. Although there is this clear recognition in international law of the scope of
sovereign rights rights relating to matters that are subject of domestic
regulation, it is also clear that the domestic law and the measures employed
to execute it must conform to the requirements of the supreme law of
members of the family of nations which is international law, and any failure
to meet those requirements is a failure to perform a legal duty.
2. A strict conformity by authorities of a government with its domestic law is
not necessarily conclusive evidence of the observance of legal duties
imposed by international law.
3. The functions exercised by the judge in this case were not judicial acts in
the sense in which the term judicial is generally used. The duties that the
judge discharged may be said to be in a measure those of a police
magistrate. However, this is not material.
4. It is probably not so very difficult to formulate a practicable and sound
standard by which to test the propriety of intervention or the right of a
nation to claim pecuniary reparation in any given case.
5. The propriety of governmental acts should be determined according to
ordinary standards of civilization, even though standards differ considerably
among members of the family of nations.
6. It has been said that a demand is justified when the treatment of an alien
reveals an obvious error in the administration of justice, fraud, or a clear
outrage.
7. In this case, no charge is made of a failure of any duty by Mexican
authorities to prevent the commission of an offense. Indemnity is claimed
because of the alleged neglect of the authorities.
 004 Rankin vs Iran (LOYOLA)
November 3, 1987 | Iran-US Claims Tribunal | state responsibility
PETITIONER: Rankin
RESPONDENTS: Islamic Republic of Iran
SUMMARY: An American national (Rankin) was employed by Bell Helicopter
International Inc. (BHI), an American company, in Iran during the replacement
by the Islamic Revolutionary Government in 1979. Rankin was granted
permission to evacuate the country with other BHI employees. Rankin claimed
compensation for loss of salary and bandoned personal property from his alleged
expulsion from Iran. The issue is WoN he can claim compensation for loss of
salary from his alleged expulsion from Iran – NO, Rankin was not able to prove
that the new policy of Iran was a substantial causal factor in his departure. A
claimant alleging expulsion has the burden of proving the wrongfulness of the
expelling State's action, in other words that it was arbitrary, discriminatory, or in
breach of the expelling State's obligations. Having reviewed the evidence, the
Tribunal finds that the Claimant has not satisfied the burden of proving that the
implementation of the new policy of the Respondent was a substantial causal
factor in his departure from Iran. Neither has the Claimant satisfied the burden of
proving that his decision to leave was caused by specific acts or omissions of or
attributable to the Respondent. Rather, the turmoil and generally chaotic
conditions associated with this crucial stage of the Revolution would appear to
have been the motivating factor in the Claimant's decision to leave.
DOCTRINE: The conduct of an organ of the State shall be
considered as an act of that State under international law, whether
that organ belongs to the constituent, legislative, executive, judicial
or other power, whether its functions are of an international or an
internal character, and whether it holds a superior or a subordinate
position in the organization of the State.
FACTS:
14. The claimant was an American national employed by Bell Helicopter
International Inc. (BHI), an American company, in Iran at the time of the fall of
the Shah's Government and its replacement by the Islamic Revolutionary
Government in February 1979.
15. On February 12, the day after the new Government took office, the claimant,
who was still under contract to work for by BHI in Iran, requested and was
granted by BHI permission to be evacuated from the country with other BHI
employees whom BHI had arranged to be repatriated.
16. In this case, he claimed compensation for loss of salary and abandoned personal
property resulting from his alleged expulsion from Iran contrary to international
law.
ISSUE/s: WoN Rankin can claim compensation for loss of salary and abandoned
personal property resulting from his alleged expulsion from Iran contrary to
international law – NO, Rankin was not able to prove that the new policy of Iran was
a substantial causal factor in his departure.
RULING: Claim DISMISSED.
RATIO:
1. According to the practice of States, the writings of scholars, the decisions of
international tribunals, and bilateral treaty provisions such as those
contained in the [1955] Treaty of Amity between Iran and the United States,
international law imposes certain restraints on the circumstances and the
manner in which a State may expel aliens from its territory.
2. A claimant alleging expulsion has the burden of proving the wrongfulness
of the expelling State's action, in other words that it was arbitrary,
discriminatory, or in breach of the expelling State's obligations.
3. These restraints have usually been considered in the context of specific
measures directed against an individual emanating directly from the State or
legally attributable to it.
4. However, these general principles apply equally to a situation in which,
while there is no law, regulation, or directive which forces the individual
alien to leave, his or her continued presence in the host country is made
impossible because of conditions generated by wrongful acts of the State or
attributable to it.
5. A distinction must be made between the period prior to February 1979 and
thereafter, when the Ayatollah Khomeini returned to Iran from exile and the
new Islamic Government replaced that of the Shah.
6. During the earlier period, the leaders of the Revolution fostered anti-
American attitudes. However, the evidence before us is inadequate to show
that in the period prior to February 1979 there existed a general expulsion
policy towards foreigners. The thrust of the Revolutionary Movement was
then aimed at the overthrow of the regime of the Shah.
7. However, when the Ayatollah Khomeini returned to Iran on February l,
1979, he was reported to have called for the departure of all foreigners.
Shortly thereafter, the newly-formed Government began to take action to
cancel contracts with non-Iranian persons and companies and to implement
a policy to lessen the ifluence of foreigners in Iran and cause the departure
of, among others, most Americans.
8. The implementation of this policy could, in general terms, be violative of
both procedural and substantive limitations on a State's right to expel aliens
from its territory, as found in the provisions of the Treaty of Amity and in
customary international law.
9. However, it is necessary to examine the circumstances of each departure
and to identify the general and specific acts relied on and evidenced to
determine how they affected or motivated at that time the individual who
now is alleging expulsion and whether such acts are attributable to Iran (See
 Articles 5- 10, Draft Articles on State Responsibility25). 10. In this regard the Tribunal notes the significance of the general turmoil and
disorder, which ensued after the return of Ayatollah Khomeini as competing
groups vied for power in the revolutionary environment, which existed in
25 Article 5 Iran at that time.
Attribution to the State of the conduct of its organs 11. The Tribunal considers this a factor which could have caused an individual's
For the purposes of the present articles, conduct of any state organ having that status under the
decision to leave and which could not be attributed to the State or its agents
internal law of that State shall be considered as an act of the State concerned under
international law, provided that organ was acting in that capacity in the case in question. or organs.
12. Having reviewed the evidence, the Tribunal finds that the Claimant has not
Article 6 satisfied the burden of proving that the implementation of the new policy of
Irrelevance of the position of the organ in the organization of the State the Respondent was a substantial causal factor in his departure from Iran.
The conduct of an organ of the State shall be considered as an act of that State under 13. Neither has the Claimant satisfied the burden of proving that his decision to
international law, whether that organ belongs to the constituent, legislative, executive, judicial leave was caused by specific acts or omissions of or attributable to the
or other power, whether its functions are of an international or an internal character, and Respondent. Rather, the turmoil and generally chaotic conditions associated
whether it holds a superior or a subordinate position in the organization of the State. with this crucial stage of the Revolution would appear to have been the
motivating factor in the Claimant's decision to leave.
Article 7
Attribution to the State of the conduct of other entities empowered to exercise elements of the
government authority
1. The Conduct of an organ of a territorial governmental entity within a State shall also be
considered as an act of that State under international law, provided that organ was acting in
that capacity in the case in question.
2. The conduct of an organ of an entity which is not part of the formal structure of the State or
of a territorial governmental entity, but which is empowered by the internal law of that State to
exercise elements of the governmental authority, shall also be considered as an act of the State
under international law, provided that organ was acting in that capacity in the case in question.

Article 8
Attribution to the State of the conduct of persons acting in fact on behalf of the State
The conduct of a person or group of persons shall also be considered as an act of the State
under international law if:
(a) it is established that such person or group of persons was in fact acting on behalf of that
State; or
(b) such person or group of persons was in fact exercising elements of the governmental
authority in the absence of the official authorities and in circumstances which justified the
exercise of those elements of authority.

Article 9
Attribution to the State of the conduct of organs placed at its disposal by another State or by
an
international organization
The conduct of an organ which has been placed at the disposal of a State by another State or
by an international organization shall be considered as an act of the former State under
international law, if that organ was acting in the exercise of elements of the governmental
authority of the State at whose disposal it has been placed.

Article 10
Attribution to the State of conduct of organs acting outside their competence or contrary to
instructions concerning their activity
The conduct of an organ of a State, of a territorial governmental entity or of an entity
empowered to exercise elements of the governmental authority, such organ having acted in particular case, the organ exceeded its competence according to internal law or contravened
that capacity, shall be considered as an act of the State under international law even if, in the instructions concerning its activity.
 005 STARETT HOUSING CORP. v. IRAN (Marcos)
Aug. 14, 1987 | Iran-US Claims Tribunal | International Responsibility
PETITIONER: Starrett Housing Corporation, Starrett Systems, Inc., Starrett
Housing International, Inc.
RESPONDENTS: The Government of the Islamic Republic of Iran, Bank
Omran, Bank Mellat
SUMMARY: Claimants Starrett and Bank Omran contracted to develop the
‘Zomorod’ residential housing project in Tehran. Their agreement provided that
Starrett would purchase certain tracts of land from or through the Bank,
construct approximately 6000 apartment units on those tracts, and the sale of
completed apartments to Iranian purchasers as condominiums. Starrett however
claimed that their property interests in the Project had been unlawfully taken by
the Government of Iran, as it had deprived them of the effective use, control and
benefits of their property by means of various actions authorizing, approving and
ratifying acts and conditions that prevented Starrett from completing the Project.
These official measures included the appointment of a temporary manager of
Shah Goli by the Ministry of Housing appointed, pursuant to a decree of the
Revolutionary Council called the “Bill for Appointing Temporary Manager or
Managers for the Supervision of Manufacturing, Industrial, Commercial,
Agricultural and Service Companies, either private or public”. Starrett is
claiming for compensation for the expropriation of the "effective use, control
and benefits of the Project". WoN the acts of the Government of Iran constituted
at taking of Starrett’s property. – YES, because the appointment of a Temporary
Manager in accordance with its provisions deprived the shareholders of their
right to manage Shah Goli. As a result of these measures the Claimants could no
longer exercise their rights to manage Shah Goli and were deprived of their
possibilities of effective use and control of it. The Tribunal does not dwell on
whether the expropriation was lawful or unlawful, because the Treaty of Amity
requires an award of full value either way. Judge Holtzmann (someone part ng
tribunal) nevertheless regarded the taking as being unlawful because Iran
utterly ignored its international legal obligation under Article IV,
paragraph 2, of the Treaty to make ‘adequate provision...at or prior to the
time of taking for the determination and payment of just compensation.
DOCTRINE: the Tribunal does not dwell on whether the expropriation was
lawful or unlawful, because the Treaty requires an award of full value at the time
of taking, including lost profits, when the taking is lawful, no less than when it is
unlawful - although additional compensation may be awarded when an
expropriating State acts in violation of its international legal obligations.
FACTS:
243. Claimants in this case are Starrett Housing Corporation, Starrett Systems,
Inc., Starrett Housing International, Inc.
244. Starrett Housing Corporation (Starrett) (incorporated in the Federal
Republic of Germany, which is a wholly-owned subsidiary of the Claimant
Starrett Housing International, Inc., incorporated in the US) and Bank
Omran, an Iranian development bank, contracted to develop the ‘Zomorod’
residential housing project in Tehran (The Project).
245. Their agreement provided that Starrett would purchase certain tracts of land
from or through the Bank, construct approximately 6000 apartment units on
those tracts, and the sale of completed apartments to Iranian purchasers as
condominiums.
246. Starett owned 79.7% of a company incorporated under the laws of Iran
called the Shah Goli Apartment Company (Shah Goli), which was
especially established to carry out The Project.
247. Further, Starrett also indirectly owned all of the equity in Starrett
Construction, which was contracted and entitled to management fee from
the proceeds from the sale of ‘Zomorod’ apartments.
248. Claimants contended that their property interests in the Project had been
unlawfully taken by the Government of Iran, as it had deprived them of
the effective use, control and benefits of their property by means of various
actions authorizing, approving and ratifying acts and conditions that
prevented Starrett from completing the Project.
249. The Claimants highlighted the following acts and conditions:
(i) a reduction in the Project work force, including sub-contractors, owing to
conditions in Iran
(ii) strikes and shortages of materials
(iii) the collapse of the banking system
(iv) changes in the control of Bank Omran
(v) the freezing of Shah Goli’s bank accounts
(vi) harassment of Starrett personnel by armed Revolutionary Guards
(vii) various official measures by the Islamic Republic of Iran.
250. These official measures included the appointment of a temporary
manager of Shah Goli by the Ministry of Housing appointed, pursuant to
a decree of the Revolutionary Council adopted on 14 July 1979, called the
“Bill for Appointing Temporary Manager or Managers for the Supervision
of Manufacturing, Industrial, Commercial, Agricultural and Service
Companies, either private or public”.
251. The Claimants presented alternative claims requesting:
(i) compensation for the expropriation of the "effective use, control and benefits
of the Project"
(ii) equitable remuneration "in consideration of all work performed" on the Project
prior to the expropriation, in terms of the force majeure provisions of Basic Project
Agreement entered into between Shah Goli and Bank Omran (a respondent bank
whose obligations the Government of Iran was alleged to succeed to)
(iii) recovery of all costs and loans, in accordance with the terms of both the Basic
Project Agreement and a guarantee allegedly given to the Starrett by Bank Omran,
owing to the fact that "the acts of the Government of Iran constituted expropriation
had rendered Starrett's further performance impossible"
252. The latter two contractual claims were, however, not pursued by the
Claimants after the Tribunal had found, in the Interlocutory Award, that acts
 of the Government of Iran amounted to a compensable expropriation. 288. The compensation was implicitly based on a valuation of the housing
Project as a going concern and it included Starrett’s pro rata share of the
ISSUE/s: WoN the acts of the Government of Iran constituted at taking of Starrett’s profits likely to be generated.
property. – YES, because the appointment of a Temporary Manager in accordance 289. An Expert was consulted for the findings on valuation and the Tribunal
with its provisions deprived the shareholders of their right to manage Shah Goli. discussed in some detail the balance between reliance on the Expert’s report
and the need for the Tribunal to reach its own decisions on compensation.
RULING: Judgment in question is affirmed. 290. The Tribunal endorsed the Expert’s use of the DCF method and indeed had
anticipated its use in the Expert’s terms of reference.
RATIO: 291. Although the Tribunal accepted, to a significant degree, the Expert’s
278. The Tribunal found there was a taking, without deciding whether the taking findings on valuation and was unstinting in its praise of the Expert’s even-
was lawful or unlawful. handed approach and careful assumptions and calculations, it awarded
279. The Tribunal concluded that the appointment of a Temporary Manager of significantly less compensation than the Expert had calculated in his Report
the Project on 30 January 1980 amounted to a taking of Starrett’s property. 292. It reduced compensation “by a global amount” without assigning precise
280. The succinct language of this act makes it clear that the appointment of a amounts to each of the factors it had decided warranted a departure from the
Temporary Manager in accordance with its provisions deprived the Expert’s calculations.
shareholders of their right to manage Shah Goli. 293. The Tribunal relied on its discretion to determine compensation equitably
281. As a result of these measures the Claimants could no longer exercise their and on the need to bring the matter to conclusion without the delays and
rights to manage Shah Goli and were deprived of their possibilities of additional costs of referring that would result if the matter was referred back
effective use and control of it. to the Expert for further calculation.
282. As the Tribunal has previously held, the Treaty of Amity, Economic 294. The Tribunal awarded only simple interest. In the circumstances of the case
Relations, and Consular Rights between the United States and of America (it appeared that the Claimant had made back-to-back loans to finance the
and Iran is 'clearly applicable' and thus a 'relevant source of law on which Project on which it was paying compound interest), However, Judge
the Tribunal is justified in drawing'" Holtzmann maintained that awarding simple interest was insufficient to
283. the Tribunal does not dwell on whether the expropriation was lawful or make the Claimant “whole for the actual damage it suffered”.
unlawful, because the Treaty requires an award of full value at the time of
taking, including lost profits, when the taking is lawful, no less than when it
is unlawful - although additional compensation may be awarded when
an expropriating State acts in violation of its international legal
obligations.
284. Under the Treaty, compensation for the expropriated property should be just
and should represent the full equivalent of the property taken.
285. Judge Holtzmann (someone part ng tribunal) nevertheless regarded the
taking as being unlawful: “had the Tribunal considered it necessary to
address the issue of the lawfulness of the expropriation, it would have had
to have found that, notwithstanding the underlying legislative action, the
expropriation was unlawful because Iran utterly ignored its international
legal obligation under Article IV, paragraph 2, of the Treaty to make
‘adequate provision...at or prior to the time of taking for the
determination and payment of just compensation.
286. Compensation was awarded to Starrett in respect of its “indirect” interest in
the Project, held through corporate entities incorporated in Iran (as well as
the value of loans made to such entities.
287. The standard of compensation awarded was the full market value of
Starrett’s interest in the Project, held to be the amount a reasonable
businessman would pay for Starrett’s rights in the Project. This reasonable
businessman was assumed to be an Iranian businessman.
 006 Amoco International Finance Corp. v. Iran (MATSUMURA)
July 14, 1987 | Chamber 3 | State Responsibility
PETITIONER: Amoco International Finance Corporation
RESPONDENTS: The Government of the Islamic Republic of Iran, National Iranian
Company, National Petrochemical Company, and Kharg Chemical Company Limited
SUMMARY: Khemco, a 50:50 joint venture established in 1967 by Amoco
International, S.A., a Swiss subsidiary of Amoco, and the National Petrochemical
Company of Iran (NPC) owned and operated a natural-gas processing plant on Kharg
Island in the Persian GulfIn 1979 the Iranian Government announced that it intended to
buy out all foreign shares in petrochemical plants. Negotiations followed for the sale of
Amoco International’s interest in Khemco, but no sale was concluded. Rather, in July
1979, over Amoco Internatonal’s objection, the Government took control of Kemco’s
operations and sales. Subsequently, on December 24, 1980, the Government issued a
decree declaring “null and void” the agreement by which Khemco was established,
effectively formalising the expropriation of Amoco Internatonal’s interest in
Khemco.Iran did not vigorously deny that the result of its action was the expropriation of
Amoco International’s interest in Khemco.Amoco International Finance Corp., a United
States company, brought a claim before the Iran-US Claims Tribunal seeking the value
of its 50% interest in Kharg Island Chemical Co. Ltd. (Khemco), an Iranian corporation
that Amoco alleged had been expropriated by Iran.
Chamber Three of the Tribunal found that Amoco’s interest in Khemco was lawfully
expropriated by Iran and held that Iran is therefore bound to pat Amoco 1/2 of the full
“going concern value” of the company. Expropriation justified by a public purpose may
be lawful is precisely the rule of customary international law. The provisions of Article
IV, paragraph 2 of the Treaty (The digest Atty approved didn’t say what the treaty was
huhu) must be read against this background, since the negotiation of the Treaty must be
presumed to have taken place in this legal context. In stating that "[s]uch a property shall
not be taken except for a public purpose", the Treaty implies that an expropriation which
is justified by a public purpose may be lawful, which is precisely the rule of customary
international law. The other condition to a lawful expropriation provided for in the same
paragraph is "the prompt payment of just compensation", an obligation which is also
accepted as a general rule of customary international law as well.
As for the computation of compensation, the rules of customary international law
relating to the determination of the nature and amount of the compensation to, be paid,
as well as of the conditions of its payment, are less well settled. They were, and still are,
the object of heated controversies. Amoco International contends that the "Discounted
Cash Flow" ("DCF") method should be used. Menwahile, Iran argues that the fair value
of the expropriated assets is best represented by net book value. The tribunal did not
make an award of damages at this stage, however, as it declined to rely exclusively on
either party’s proposed methods of calculating compensation, and scheduled further
briefing. This is because the Tribunal is not in possession of the data necessary to take a
meaningful decision, and such data as has been provided has not been properly discussed
by either of the Parties outside of the context of its favorite theory. Instead, the Tribunal
ordered Amoco International to submit further data.
DOCTRINE: The progressive recognition of the right of States to nationalize foreign
property for a public purpose is a right unanimously accepted, even by States which
reject the principle of permanent sovereignty over natural resources, considered by a
majority of States as the legal foundation of such a right.
CAVEAT: I couldn’t find the full text so this is a compilation of digests I found
online :(
FACTS:
1. Pursuant to the Khemco Agreement, Khemco, a 50:50 joint venture was
established in March 14, 1967 by Amoco International, S.A., a Swiss
subsidiary of Amoco International (US corporation), and the National
Petrochemical Company of Iran (NPC) owned and operated a natural-gas
processing plant on Kharg Island in the Persian Gulf.
2. This was as a joint stock company under the laws of Iran for the purpose of
extraction and sale of sulfur, LPG and C5 plus Natural Gas Liquids and the
production of such other products as the parties may agree upon.
3. Khemco was to "install; own and operate" a plant "with a capacity to extract
about 500 tons per day of elemental sulfur and about 6,000 barrels per day
of LPG and C5 plus Natural Gas Liquids, with additional capacities to be
provided as the parties hereto may hereafter agree.
4. In 1979 the Iranian Government announced that it intended to buy out all
foreign shares in petrochemical plants. Negotiations followed for the sale of
Amoco International’s interest in Khemco, but no sale was concluded.
5. Rather, in July 1979, over Amoco Internatonal’s objection, the Government
took control of Kemco’s operations and sales.
6. Subsequently, on December 24, 1980, the Government of Iran issued the
the Single Article Act which stated that all oil agreements considered by a
special commission appointed by the Minister of Oil to be contrary to the
Nationalization of the Iranian Oil Industry Act shall be annulled and claims
arising from conclusion and execution of such agreements shall be settled
by the decision of said commission.
7. Hence, the agreement by which Khemco was established was declared “null
and void”, effectively formalising the expropriation of Amoco
Internatonal’s interest in Khemco.
8. Amoco International Finance Corp, brought a claim before the Iran-US
Claims Tribunal seeking the value of its 50% interest in Khemco, an Iranian
corporation that Amoco alleged had been expropriated by Iran.

ISSUE/s:
1. WoN the expropriation was lawful —YES because expropriation justified
by a public purpose is considered as customary international law.
RULING: Chamber Three of the Tribunal found that Amoco’s interest in Khemco
was lawfully expropriated by Iran and held that Iran is therefore bound to pat Amoco
1/2 of the full “going concern value” of the company. The tribunal did not make an
award of damages at this stage, however, as it declined to rely exclusively on either
party’s proposed methods of calculating compensation, and scheduled further
briefing.
RATIO:
1. The principles of international law generally accepted some sixty years ago
in regard to the treatment of foreigners recognized very few exceptions to
the principle of respect for vested rights. The Court listed among such
exceptions only "expropriation for reasons of public utility, judicial
liquidation and similar measures”.
2. A very important evolution in the law has taken place since then, with the
progressive recognition of the right of States to nationalize foreign
property for a public purpose. This right is today unanimously accepted,
even by States which reject the principle of permanent sovereignty over
natural resources, considered by a majority of States as the legal foundation
of such a right.
3. The importance of this evolution derives from the fact that nationalization is
generally defined as the transfer of an economic activity from private
ownership to the public sector.
4. The provisions of Article IV, paragraph 2 of the Treaty (The digest Atty
approved didn’t say what the treaty was huhu) must be read against this
background, since the negotiation of the Treaty must be presumed to have
taken place in this legal context. Although the provisions are phrased in a
negative form and emphasize the principle of the respect due to foreign
property, they nevertheless amount to a clear recognition of the right to
nationalize. In stating that "[s]uch a property shall not be taken except
for a public purpose", the Treaty implies that an expropriation which
is justified by a public purpose may be lawful, which is precisely the
rule of customary international law.
5. The other condition to a lawful expropriation provided for in the same
paragraph is "the prompt payment of just compensation", an obligation
which is also accepted as a general rule of customary international law as
well.
6. While a few recent resolutions of international bodies or conferences,
including the General Assembly of the United Nations, have cast doubts on
the existence of an international rule to this effect, other less controversial
resolutions, such as G.A. Res. 1803 (XVII) (14 December 1962) on the
Permanent Sovereignty over Natural Resources, confirm the existence of
the rule. Furthermore, the rule is generally recognized and applied by
international tribunals and reflected in the practice of States, notably in
numerous conventions relating to the treatment of foreign property or to the
settlement of disputes arising from nationalizations.
7. The rules of customary international law relating to the determination of the
nature and amount of the compensation to, be paid, as well as of the
conditions of its payment, are less well settled. They were, and still are, the
object of heated controversies, the outcome of which is rather confused.
As to computation of compensation
1. Terms such as "prompt, adequate and effective", "full", "just", "adequate",
"adequate in taking account of all pertinent circumstances", "equitable", and
so on, are currently used in order to qualify the compensation due, and are
construed with broadly divergent meanings.
2. The parties to the Treaty agreed on a common position on this problem by
the choice of the term "just compensation" and by listing, in the last
sentence of Article IV, paragraph 2, what should be included under this
term. The wording of the sentence, however, does not solve the problem of
the method to be used in order to determine the value of the property or
interest in property which was expropriated.
3. Amoco International considers that the proper methodology to be used
in the instant case is the "Discounted Cash Flow" ("DCF") method.
Such a method takes into account the fact that the value of any income-
producing asset depends on two factors:
a. the amount and timing of the revenue that is expected over the
remaining life of the asset, less the costs required to operate and to
maintain the asset (generally referred to as the 'future net cash
flow' of the asset), and
b. the rate at which the projected net cash flow should be 'discounted'
to produce the `present value' of the cash flow
4. The first step in valuing an asset pursuant to the DCF method must be to
project from the valuation date onward the most likely revenues and
expenses of the ongoing concern, year by year. The revenues less the
expenses will give the future net cash flow.
5. The second step will be to discount the projected net cash flow to its
"present value" as of the valuation date. To this end it will be necessary to
determine the proper discount rate, taking into account the probable risks,
inflation and the real rate of interest. The factor of inflation, however, can
be discarded in consistently using a currency of constant purchasing power,
as was the case in the calculations made by the Amoco International and its
expert, in "real" terms (i.e. in 1979 U.S. dollars). The proper discount rate,
then, allegedly equals the annual rate of return available in the market on
assets of comparable risk. Therefore, according to the Amoco International,
it can be said that "the market value of an asset and its present value
determined by the DCF method are one and the same thing". Amoco
International concludes that the value arrived at by the DCF method is not
speculative "because the risk that the actual cash flow will be less that the
projected cash flow is fully taken into account in the market-determined
discount rate”.
6. Amoco International contends that such a valuation "determines the price at
which going-concern business assets are bought and sold". In the instant
Case, the Claimant calculated the future net cash flow to be generated by
Khemco at $564,795,680 in 1979 dollars and the proper discount rate to be
applied at 6.5 percent. The present value of Khemco, therefore, would be
$360,076,230 as of 1 August 1979, and Amoco's 50 percent share of this
value would be $183,232,986.
7. Meanwhile Iran contends that the DCF method is not appropriate in the
instant Case and must completely be put aside. For them, the fair value of
the expropriated assets is best represented by net book value. They
contend that this accords with State practice and case authorities and is
supported by the theory of unjust enrichment. Furthermore, in the
Respondents' view, recovery of future profits in the case of a lawful
expropriation should be excluded for various obvious reasons. One of them
is that "going-concern value could never have been part of the legitimate
expectations of the parties". The result of the award of lost profits pursuant
to the DCF method would also be absurd, since the Claimant would be able
to invest the amounts, including lost profits, received as compensation, and
therefore obtain a real rate of return for such an investment, which would be
tantamount to double recovery. Such an award would also produce an
unreasonable rate of return. Amoco made an investment of $6 million (in
1967 and 1968), it is averred, for a half share of the capital. By the end of
1978 the net book value of Khemco had increased to $29.3 million, of
which $14.65 million was Amoco's share. Moreover, Khemco had earned,
after taxes, $82.5million by the end of 1978, that is $41.25 million in profit
for Amoco. This means a return in excess of $50 million on an investment
of $6 million. The Respondents contend that compensation of $183.2
million on top of that for loss of future profits would be the opposite of
fairness and equity.
8. Because the Parties focused on the two methods previously rejected, they
did not provide the Tribunal with much of the data relating to the
various components listed in their argued method of computation.
9. Amoco International produced learned studies including numerous
calculations relating, for the most part, to projections into the future. Only a
few documents relating to Khemco's financial situation, contemporaneous
with or prior to the process of expropriation, were submitted.
10. Iran, for their part, advanced only a few figures, and those are without
substantiation.
11. The Tribunal, therefore, is not in possession of the data necessary to take a
meaningful decision, and such data as has been provided has not been
properly discussed by either of the Parties outside of the context of its
favorite theory. In any event, therefore, it would not be fair for the Tribunal
to use that data in another context without asking the Parties to present their
comments
12. Accordingly, the Amoco International is ordered to submit to the Tribunal
all the data relating to the various components listed in paragraphs 264 and
265 above, as well as its views on the most appropriate method, or methods,
to be used in order to calculate the value of these components and of the
concern as a whole, taking into consideration the findings of the Tribunal
contained in this Award. Among other elements, the Amoco International
should provide the Tribunal with the following: the total investment made
by the two parties in Khemco (amounts and dates); the annual reports,
control budgets and financial statements (with all the relevant annexes) of
Khemco; the net book value of Khemco as of 31 July 1979; the replacement
value of Khemco's assets at the same date; and the estimated value of
Khemco's intangible assets at the same date, including goodwill and
commercial prospects.
13. .The time limit for the submission of that evidence and views will be
determined by a separate order, as well as the time limit for the submission
by the Iran of their comments and complementary data and evidence. The
Tribunal intends to issue its final Award on compensation on the basis of
the written pleadings and evidences so submitted. If it deems it necessary,
the Tribunal may invite the Parties to submit additional comments or data.
 CHOZROW FACTORY CASE (Germany v Poland) (ARMAND)
July 26, 1927 | Permanent Court of International Justice| Reparation
PETITIONER: Germany
RESPONDENTS: Poland
SUMMARY: This case concerns the expropriation by Poland of a factory at
Chorzow contrary, as the Court had held, to the Geneva Convention of 1922 between
Germany and Poland on Upper Silesia. In this judgment the Court ruled upon a claim
by Germany for an indemnity for the damage caused by the illegal expropriation.
Poland expropriated the Chozrow factory contrary to the Geneva Convention
prohibiting such. It in fact amounted to a seizure of property which is void even in
spite of compensation. The object of the Geneva Convention is, after all, is to
promote the economic life of Upper Silesia. That being the case, Restitution in kind,
or, if this is not possible, payment of a sum corresponding to the value which a
restitution in kind would bear; the award, if need be, of damages for loss sustained
which would not be covered by restitution in kind or payment in place of it — such
are the principles which should serve to determine the amount of compensation due
for an act contrary to international law. This conclusion particularly applies as
regards the Geneva Convention, the object of which it to provide for the
maintenance of economic life in Upper Silesia on the basis of respect for the status
quo. The dispossession of an industrial undertaking — the expropriation of which is
prohibited by the Geneva Convention — then involves the obligation to restore the
undertaking and, if this be not possible, to pay its value at the time of the
indemnification, which value is designed to take the place of restitution which has
become impossible. To this obligation, in virtue of the general principles of
international law, must be added that of compensating loss sustained as the result of
the seizure. The impossibility, on which the Parties are agreed, of restoring the
Chorzow factory could therefore have no other effect but that of substituting
payment of the value of the undertaking for restitution; it would not be in conformity
either with the principles of law or with the wish of the Parties to infer from that
agreement that the question of compensation must henceforth be dealt with as
though an expropriation properly so- called was involved
DOCTRINE: It is a general principle of law as well as Internation Law, that any
breach of agreement creates an obligation to make reparation.
FACTS:
61. Mar. 1915 - The German Reich (“Germany”) entered into a contract with
Bayerische Stickstoffwerke A.-G. (“Bayerische”) for, among others, the
construction of a nitrate factory in Chorzów, Upper Silesia.
62. Dec. 1919 - Another company, Oberschlesische Stickstoffwerke A.-G.
(“Oberschlesische”), was formed. Oberschlesische would own the land and
improvements of the factory while Bayerische would continue handling the
management and operations. Oberschlesische was duly entered in the land
register as owner of the property constituting the nitrate factory.
63. July 1922 - The Polish Court of Huta Krolewska nullified the registration of
Oberschlesische as owner of the factory, and restored the right of ownership
to the name of the Polish Treasury.
64. Court’s basis: Since the German Government owned all of the shares of the
Oberschlesische, what happened was merely a transformation of an
ordinary State enterprise into a State enterprise with a share capital, and this
falls within the category of “property and possessions belonging to the
Empire” acquired by Poland under Art. 256 of the Treaty of Versailles.
65. M. Ignacy Moscicki was delegated by the Polish government with full
powers to take charge of the factory. He took possession of the immovable
and movable property (licenses, patents, etc.) therein.
66. Oberschlesische and Bayerische brought separate actions to recover
possession of the factory before the German-Polish Mixed Arbitral Tribunal
at Paris, but both later withdrew. Obersclensische then brought an action for
the recovery of the movable property, but this led to no decision on the
merits.
67. Germany initiated direct negotiations with Poland. Germany saw the
impracticability of restoring the factory, and opted to demand reparations.
However, negotiations were unsuccessful because, among others, Poland
believed that some of its claims against Germany should be considered in
offsetting the indemnity to be awarded to the latter.
68. Germany submitted a suit to the Permanent Court of International Justice
(PCIJ) demanding reparation from the Polish Government, claiming that
according to PCIJ Judgment No. 7, Poland’s acts contradicted Art. 6 of the
Geneva Convention. On receipt of Germany’s complaint, Poland denied
the PCIJ’s jurisdiction, and submitted that the Court should declare that it
had no jurisdiction. This was overruled.
69. GERMANY ARGUES: Poland should pay the two companies the
compensation due for the taking possession of the working capital of the
factory from July 3, 1922, to the date of judgment. However, this is not an
ordinary action for damages but a dispute between governments; the
German Government has not brought this suit as representative of the
individuals who have suffered injury, but it may estimate the damage for
which it claims reparation on its own behalf, according to the measure
provided by the losses suffered by the companies whose case it has taken
up. Finally, Poland should not be allowed to demand a set-off of claims.
70. POLAND ARGUES: Germany is modifying the subject of the dispute; the
German claim assumed another aspect if it was no longer a question of
compensating the companies, but of compensating the State for the injury
suffered by it. Poland admits the existence of injury to Bayerische, but
denies the existence of any injury to Oberschlesische (since its ownership
was null and void) and consequently submits that Germany's claim should
be dismissed.
ISSUE/s:
15. W/N Germany altered the subject of the dispute by claiming on its own
behalf – No. It is a principle of IL that the reparation of a wrong may
consist in an indemnity corresponding to the damage which the nationals of
the injured State have suffered as a result of the act which is contrary to IL.
 16. W/N there exists an obligation to make reparation – YES. The Court
observes that it is a principle of IL, and even a general conception of law,
that any breach of an engagement involves an obligation to make
reparation.
17. W/N Poland is entitled to a set-off of claims - Since there is no agreement
between the Parties to submit this question to the Court (only Germany
raised this in its submission), it remains to be considered whether the Court
has jurisdiction to pass judgment on it.
RULING: Court dismisses the plea made by the Polish Government requesting the
Court to declare that it has no jurisdiction to deal with the suit brough by the German
Government; the Polish Government is under an obligation to make good the
consequent injury sustained by the aforesaid Companies; Wheter Poland could set
off against her debt to Germany any debt due to her by Germany remains entirely
reserved.
RATIO:
94. The reparation of wrong may consist in an indemnity corresponding to the
damage which is contrary to IL. Rights or interests of an individual the
violating of which rights cause damages are always in a different plain to
rights belonging to a state, which rights may also be infringed by the same
act.
95. The act of Poland was not expropriation in its real sense. Rather, it was a
seizure of property, right and interest which could not be expropriated even
against compensation, save under the special conditions fixed by Art 7 of
the Upper Silesia Convention of 1922. In doing so, therefore, Poland acted
contrary to its obligations. It is a general principle of internation law and
even a general concept of law that a breach of an agreement involves a duty
to make reperatoin. Reparatoin is the expendable complement of a failture
to apply a convention and there is no necessity for this to be stated in the
convention itself.
96. It is a principle of IL that the reparation of a wrong may consist in an
indemnity corresponding to the damage which the nationals of the injured
State have suffered as a result of the act which is contrary to IL. This is
even the most usual form of reparation; it is the form selected by Germany
in this case and the admissibility of it has not been disputed.
97. The rules of law governing the reparation are the rules of IL in force
between the two States concerned, not the law governing relations between
the State and the individual. However, rights or interests of an individual
are always in a different plane to rights belonging to a State. The damage
suffered by an individual is never identical in kind with that which will be
suffered by a State; it can only afford a convenient scale for the calculation
of the reparation due to the State.
98. IL does not prevent one State from granting to another the right to have
recourse to international arbitral tribunals in order to obtain the direct award
to nationals of the latter State of compensation for damage suffered by them
as a result of infractions of IL by the first State.
99. Germany has been consistent in its submissions; the indemnities were
always payable to the German Government. The request to pay to the
account of the 2 companies with the Deutsche Bank at Berlin relates only to
the locus solutionis ("law of the place where performance occurs").
100. The Court observes that it is a principle of IL, and even a general
conception of law, that any breach of an engagement involves an obligation
to make reparation. In Judgment No. 8, the Court has already said that
reparation is the indispensable complement of a failure to apply a
convention, there is no necessity for this to be stated in the convention
itself. This obligation to make reparation has been recognized as an element
of positive IL.
101. On Poland’s breach of an international engagement: res judicata applies.
The nonconformity of Poland's attitude in respect of the two Companies
with Art. 6 and the following articles of the Geneva Convention is
established by No. 2 of the operative provisions of Judgment No. 7.
102. The essential principle contained in the actual notion of an illegal act – a
principle which seems to be established by international practice and in
particular by the decisions of arbitral tribunals – is that reparation must, as
far as possible, wipe out all the consequences of the illegal act and re-
establish the situation which would, in all probability, have existed if that
act had not been committed. Restitution in kind, or, if this is not possible,
payment of a sum corresponding to the value which a restitution in kind
would bear; the award, if need be, of damages for loss sustained which
would not be covered by restitution in kind or payment in place of it – such
are the principles which should serve to determine the amount of
compensation due for an act contrary to IL.
103. Since there is no agreement between the Parties to submit this question to
the Court (only Germany raised this in its submission), it remains to be
considered whether the Court has jurisdiction to pass judgment on it. The
Court considers that this argument must be interpreted in the sense that the
prohibition of set-off is asked for in order to ensure that in the present case
reparation shall be really effective.
104. Although in the negotiations, Poland had put forward a claim to set off a
part of the indemnity against the claim which she put forward in regard to
social insurances in Upper Silesia. But the Court has already had occasion
to state that it can take no account of declarations, admissions or proposals
which the Parties may have made during direct negotiations between them.
 007 TEXACO v. LIBYA (MERILLES)
January 19, 1977 | ARBITRATOR: Prof. René-Jean Dupuy (France) | State
Responsibility
PETITIONER: Texaco Overseas Petroleum Company and California Asiatic
Oil Company
RESPONDENTS: Libyan Government
SUMMARY: A decree to nationalize all Texaco’s rights, interest and property
in Libya was promulgated by Libya. This action of the Libyan Government led
Texaco to request for arbitration, but it was refused by Libya. A sole arbitrator
was appointed by the International Court of Justice on Texaco’s request. Libya
contests that its acts were functions of their sovereignty.
The issue in this case is WoN international law applies to contracts entered into
by States and private companies and WoN Libya in adopting nationalization
measures breached its obligations under the contracts.
1st Issue: YES. Whenever reference is been made to general principles of law in
the international arbitration context, it is always held to be a sufficient criterion
for the internationalization of a contract. The arbitrator made it clear that
international law governing contractual relations between a State and a foreign
private party means that 'for the purposes of interpretation and performance of
the contract, it should be recognized that a private contracting party has specific
international capacities’. The arbitrator found therefore on this point that the
principles of Libyan law were in conformity with international law and
concluded that the Deeds of Concession in dispute had a binding force.
2nd Issue: YES. The arbitrator considered that Libya had undertaken specific
commitments in the grant of concessions which could not be disregarded by the
nationalization measures. Libya was legally bound to perform the deeds of
concession according to their terms An internationalized contract has effects and
consequences on the rights of the parties – they may enter into arbitration if
their rights in the contracts are breached. The sovereign State was obliged to
perform in accordance with its contractual obligations
DOCTRINE: Entering into international agreements is an act of sovereignty. A
State cannot invoke its sovereignty to disregard commitments freely undertaken
through the exercise of this same sovereignty.
FACTS:
1. On September 1, 1973 and February 11, 1974, Libya issued decrees
nationalizing all of the rights, interests, and property of the Texaco
Overseas Petroleum Company (TOPCO) and California Asiatic Oil
Company (CAOC) in Libya that had been granted to them jointly by the
Libyan government under 14 deeds of concession.
2. TOPCO and CAOC requested arbitration and appointed an arbitrator.
3. However, Libya refused to submit to arbitration and did not appoint an
arbitrator.
4. The 14 deeds of concession provided by Libya to the two companies
permitted the President of the International Court of Justice (ICJ) to appoint
a sole arbitrator to hear and determine the disputes.
5. The Libyan government opposed this practice and argued that the disputes
were not subject to arbitration because they involved sovereign acts by
Libya.
6. The President of the ICJ rejected these arguments and appointed Professor
Rene-Jean Dupuy as the sole arbitrator.
7. The Libyan government refused to participate in the subsequent arbitration
proceedings.
8. On January 19, 1977, Professor Dupuy issued an award on the merits in
favor of TOPCO and CAOC.
9. He held that the deeds of concession were binding on all parties, that the
Libyan government breached its obligations under the deeds of concession,
and that the Libyan government was legally bound to perform the deeds of
concession according to their terms.
10. The deeds of concession contained a provision stating that the concession
would be governed by principles of Libyan law common to principles of
international law, and that in the absence of such common principles, then
they would be governed by and in accordance with the general principles of
law, including those which have been applied by international tribunals.
11. The arbitrator concluded that the nature of the deeds of concession
agreement made it an internationalized contract.
12. He then considered the effect and consequences of an internationalized
contract on the rights of the parties.
ISSUE/s:
1. Whether international law applies to contracts entered into by States and
private companies - YES, reference made to general principles of law is
held to be a sufficient criterion of the internalization of a contract
2. Whether Libya in adopting nationalization measures breached its
obligations under the contracts. - YES, entering into international
agreements is an act of sovereignty. A State cannot invoke its sovereignty to
disregard commitments freely undertaken through the exercise of this same
sovereignty.
RULING: SC affirmed the lower courts decision. Pwede rin wherefore.
RATIO:
1. ISSUE 1: Whenever reference is been made to general principles of law in
the international arbitration context, it is always held to be a sufficient
criterion for the internationalization of a contract.
2. The lack of adequate law in the state considered and the need to protect the under international law.
private contracting party against unilateral and abrupt modifications of law 16. In the instant case the arbitrator investigated therefore whether Libya had
in the contracting state is a justification to the recourse to general principles. undertaken international obligations which prevented it from taking
3. Though international law involves subjects of a diversified nature, legal nationalizing measures, and whether the disregard of such obligations is
international capacity is not solely attributable to a state. justified by the sovereign nature of such nationalization measures.
4. A private contracting party, unlike a state, has only a limited capacity and is 17. The arbitrator found first that both under Libyan law and
limited to invoke only those rights that he derives from his contract. international law the State has the power to make international
5. The arbitrator made it clear that international law governing contractual commitments, including those with foreign private parties.
relations between a State and a foreign private party means neither that the 18. Such a commitment cannot be regarded as a negation of its sovereignty,
latter is assimilated to a State nor that the contract is assimilated to a treaty. but, quite to the contrary, is a manifestation of such sovereignty.
6. It only means that 'for the purposes of interpretation and performance 19. As a result a State cannot invoke its sovereignty to disregard
of the contract, it should be recognized that a private contracting party commitments freely undertaken through the exercise of this same
has specific international capacities’. sovereignty.
7. Furthermore, considering that some contracts may be governed both by 20. The arbitrator considered that Libya had undertaken specific commitments
municipal law and by international law, the arbitrator held that the choice of which could not be disregarded by the nationalization measures.
law clause referred to the principles of Libyan law rather than to the rules of 21. The arbitrator referred here to the fact that Libya had granted a concession
Libyan law. In this connection the arbitrator said: of a minimum duration of 50 years, and to the stabilization clause
a. The application of the principles of Libyan law does not have a. This provision does not, in principle, impair the sovereignty of the
the effect of ruling out the application of the principles of Libyan State to legislate in the field of petroleum activities in
international law, but quite the contrary: it simply requires us respect of other persons.
to combine the two in verifying the conformity of the first with 22. The recognition by international law of the right to nationalize is not
the second’. sufficient ground to empower a State to disregard its commitments,
8. Applying the principles stated above, the arbitrator declared that he would because the same law also recognizes the power of a State to commit
refer on the one hand to the principle of the binding force of contracts itself internationally, especially by accepting the inclusion of
recognized by Libyan law, and on the other to the principle of pacta sunt stabilization clauses in a contract entered into with a foreign private
servanda which is a general principle of law constituting an essential party'.
foundation of international law.
9. The arbitrator found therefore on this point that the principles of
Libyan law were in conformity with international law and concluded
that the Deeds of Concession in dispute had a binding force.
10. ISSUE 2: At the outset the arbitrator stated here that 'the right of a State to
nationalize is unquestionable today.
11. It results from international customary law, established as the result of
general practices considered by the international community as being the
law’.
12. The arbitrator questioned, however, whether the act of sovereignty which
constitutes the nationalization authorizes a State to disregard its
international commitments assumed by it within the framework of its
sovereignty.
13. In this respect the arbitrator drew a distinction between a nationalization
concerning nationals of a State or a foreign party in respect of whom the
State had made no particular commitment to guarantee and maintain their
position, and a nationalization concerning an international contract.
14. The former type (nationalization concerning nationals) is completely
governed by the domestic law.
15. But in the case of an internationalized contract the State has placed itself
002 AWARD IN THE MATTER OF AN ARBITRTATION BETWEEN
KUWAIT AND AMINOIL (Peliño)
March 24, 1982 | Prof. Paul Reuter | State Responsibility – Nationalization &
Compensation
PARTIES: The Government of Kuwait and the American Independent Oil
Company
SUMMARY: Aminoil was granted a 60-year concession by Kuwait to exploit
oil reserves in the Neutral Zone. The Concession Agreement contained a
stabilization clause that prevented Kuwait from unilaterally annulling the terms.
Eventually, Kuwait gained independence from UK and it entered into a
Supplemental Concession Agreement of profit sharing of 50/50. A Draft
Agreement was also entered into, but was never ratified, but then a letter was
said to have contained that the parties agreed to the agreement as if it was
ratified. Kuwait wanted to get more from the concession, so they wanted to
adopt a new kind of system, the Abu Dhabi Formula, agreed upon by OPEC
countries. Aminoil didn’t consent, while Kuwait was able to buy out all the other
oil concessions in Kuwait, leaving Aminoil as the only private operator. Kuwait
wanted to gain control and ownership over the oil resources. But they disagreed
as to how the government would indemnify Aminoil, so they brought the case to
the tribunal. Hence, this case. There are several issues in this case (see full
digest), but the main issue here is whether or not the Decree Law was a valid act
of nationalization. The Decree Law terminated the agreement between Kuwait
and Aminoil, and it would, in effect make all assets, interest, revert back to the
State (so magiging nationalizaed na siya and State will have full control and
ownership). The tribunal here said that it was a valid act of nationalization. This
was because although there was a stabilization clause in their agreement that
prevented from terminating the agreement except for certain grounds, there were
already other circumstances (like Kuwait being an independent state). The given
stabilization clause no longer possessed its formal absolute character, rather, the
clause impliedly prohibited nationalizations of confiscatory character, that is,
without proper indemnification, but did not rule out nationalization per se.
Therefore, nationalization was lawful provided that it did not possess any
confiscatory character.
DOCTRINE: The clause impliedly prohibited nationalizations of confiscatory
character, that is, without proper indemnification, but did not rule out
nationalization per se. Therefore, nationalization was lawful provided that it did
not possess any confiscatory character.
But I think na the main take-away is that if you’re going to take something, you
have to give comepensation or indemnification for it. And in line with state
responsibility, (similar to like just compensation), when you nationalize or like
take over, then the government should indemnify the party affected.
FACTS:
253. Aminoil is an American company incorporated in Delaware with the object
of exploring for, producing, refining, selling petroleum, natural gas, and
other hydrocarbons.
254. Aminoil was able to obtain an agreement with UK which was in special
relations with Kuwait and was able to be granted a Concession for the
exploration and exploitation of petroleum and natural gas in the Kuwait
“Neutral Zone”.
a. The location was between Kuwait and Saudi Arabia was uncertain and
the British authorities, since they had an agreement with both Kuwair
and Saudi, concluded a treaty wherein both these states had access and
shared in what was to be known as the “Divided Zone”.
255. The special relationship between Kuwait and UK came to an end since the
Constitution of Kuwait was promulgated.
256. The principal clauses of Aminoil’s Concession relevant to this case are the
following:
a. Art. 1: Period of agreement-60 days from date of signature.
b. Art. 2(c): The company shall conduct ops in a workmanlike manner and using appropriate
scientific methods and to close unproductive holes. In addition, would also keep the
Shaikh and his Foreign Representative informed generally as to the progress, but the info
would be confidential.
c. Art. 3: Immediate payment to the Ruler of $625k dollars, followed after 30 days by $7.25
million, and an annual royalty of $2.50 for every ton of Aminoil’s petroleum won and
saved, subject to a minimum annual royalty of $625k.
d. Art. 3(h): Gold Clause – Any obligation to pay a specified sum in USD shall be
discharged by the payment of a sum in USD equal to the official US Government
purchase price in force at the date of payment for such quantity of gold, of the standard
and fineness prevailing at the date of signature, as such specified sum would have been
sufficient to purchase at the date of signature of the agreement.
e. Art. 11: Ruler has the right to put an end to the Concession before the expiry of the 60
years in any of the ff. cases: (a) failure by Company to perform oblgiations in Art. 2
(geo/logical or physical exploration or drilling), (b) failure to make any payments due
based on Art. 3, (c) if the Company shall be in default under the provisions of arbitration
in Art. 18. (I personally think this is the stabilization clause)
f. Art. 13: All movable and immovable property of the Company in Kuwait and in the
Neutral Zone shall be handed over to the Shaikh, free of cost.
g. Art. 17: Shaikh shall not annul the agreement except as provided in Art. 11 No Alteration
shall also be made except if the Shaikh and the Company jointly agree.
257. 2 other oil companies were operating in Kuwait at about this time. Kuwait
Oil Company (KOC) was owned by British Petroleum and Gulf Oil Corp.
and had a concession and Arabian Oil Company was Japanese owned.
258. Eventually, the Agreement between the Ruler of Kuwait and the UK put an
end to the special relationship of the 2 countries since Kuwait became
independent.
259. Kuwait and Aminoil entered into negotiations for the revision of the
Concession which led to the signature of a Supplemental Agremeent.
a. It was supposed to modify the financial clauses of the Concession.
b. Aminoil was made liable for 50% in a certain year and then 57% tax in another year.
c. It also had the obligation to establish and announce or procure the establishment and
announcing of its posted prices.
d. In the new agreement, the Ruler had the right to terminate the Concession in case the
company defaulted.
 e. Another article was also incorporated, stating that if there are changes in the concessions
now in existence because of the terms of the concessions granted hereafter.
260. A third understanding was reached in the shape of a Confidential Letter,
continaing the details and arrangements for the special condititions of
Aminoil’s undertaking.
261. As previously mentioned, Kuwait had its own Consitution, and some of the
pertinent provisions are as follows:
a. Art. 18: that they were safeguarding private ownership.
b. Art. 21: All of the natural wealth and resources are properties of the state.
c. Art. 152: Any concession for the exploitation of natural resource shall be granted only by
law and for a determinate period.
262. Aminoil suffered financial losses, so the shares were bought by RJ
Reynolds Industries, Inc.
263. Negotiations with Kuwait and Aminoil took place regarding financial
aspects. A draft agreement was prepared but was never signed.
264. In Feb. 1971, the Tehran Agreement was concluded between the Gulf States
and a number of major oil companies. And the goal was to apply various
resolutions of the OPEC, providing for an increase in posted prices.
a. Dollar weakened so a new agreement was concluded (Geneva I
Agreement), providing for an increase in posted prices. And another
agreement, Geneva II Agreement, added 2 more currencies.
265. Kuwait and Aminoil entered into new negotiations regarding the application
of the Tehran and Geneva Agremeents.
a. Aminoil proposed that the relationship of Kuwait and Aminoil change,
in that Aminoil should be a contractor while the government becomes
owner of all the Kuwait assets in Aminoil.
b. But this was rejected by Kuwait, so they other negotiations, and the
revisions were embodied in a Draft Agreement.26
c. Several other amendments were also introduced.27
266. The Draft Agremeent was never ratified. And the “October War” broke out
in the Middle East.
a. So the decision of OPEC members to take into their hands the fixing of
posted prices. And companies which would not agree, would have to
stop production.
b. Kuwait was pressuring Aminoil to pay.
267. A representative of Aminoil formally accepted the Agreement as drafted.
And it also paid $13 million for the retroactive effect of the financial
arrangements.
a. But the tax law was never passed in Kuwait nor even presented in the
parliament.
268. A final draft of the agreement was prepared.
a. Kuwait informed Aminoil of the increase in royalty rates and profit
26 Regarding applicable tax rates, rate of computation or “make-up payments”, expensing of royalties,
acceleration of payment of income tax and make-up payments, application to Aminoil of the Tehran and
Geneva Agreements.
27 Regarding Art. 2(c), gold clause was deleted, government wanted to enact a new tax law so that
Aminoil could claim double immunity in the US, arbitration clause was included.
payable to the Government.
b. This was all a unilateral decision of Kuwait.
c. Kuwait was implementing decisions taken by OPEC members.
d. But during this time, the posted prices quadrupled, so Aminoil was
supposed to pay a higher price to the government.
269. Eventually, Kuwait was able to gain control and also took over the other oil
companies, with the exception of Aminoil. So Aminoil was left as the sole
totally private operator in Kuwait.
270. Conservation Regulations were also adopted in Kuwait.
271. OPEC countries began discussing new financial terms to be imposed on the
companies in the form of taxation, like increase in royalty levels and posted
prices, known as the Abu Dhabi Formula.
272. Kuwait, in effect, wanted to enforce this to Aminoil, claiming that they
informed and advised them of the changes, but then Aminoil was denying
that they were informed of the new terms.
273. Kuwait and Aminoil negotiated as to the new terms.
a. First Phase: Aminoil submitted a written proposal, but they were not
able to agree on anything, and eventually the time set to reach an
agreement expired.
b. Second Phase: They had informal discussions, that the existing
Concession would be terminated and replaced by a renewable 10-year
service contract and that Kuwait would take over the assets of Aminoil,
free of charge and all financial claims pending would be abandoned.
c. Eventually, Kuwait issued a Decree Law terminating the Agreement
betweent Kuwait and Aminoil.
i. Concession granted to Aminoil would be terminated.
ii. All interests, assets, funds of Aminoil would revert to the State..
iii. Compensation Committee would be set up to determine fair
compensation due to Aminoil.
iv. An Executive Committee would make an inventory of the assets
that would be reverted to the State.
274. The take over was formally protested by Aminoil, but the press release of
Kuwait was that it has been their plan to take full ownership of oil resources
and place it under their management.
275. Aminoil informed Kuwait’s Ministry of Oil that they plan to initate
arbitration proceedings.
276. Hence, this case.
ISSUE/s:
66. What law is applicable in this case? The tribunal said that the Kuwaiti law
and the general principles of public international law are both allowed to be
used.
67. WON the 1973 Agreement and the Abu Dhabi Formula are valid. – YES,
Aminoil has to pay whatever is due.
68. WON the Decree Law was a valid act of nationalization. – YES, what is is
prohibited is a nationalization of confiscatory character.

RULING: WHEREFORE, the instant petition is PARTIALLY GRANTED. The
decision of the CA insofar as it affirmed MTRCB’s jurisdiction of MTRCB to
review is hereby AFFIRMED with the MODIFICATION that the suspension order
against GMA be declared NULL AND VOID.
RATIO:
On which law is applicable
1. Kuwait law is a highly evolved system as to which the government has been
at pains to stress that established public international law is necessarily a
part of the law of Kuwait.
a. The general principles of law are part of public international law.
2. Kuwait is a sovereign state entrusted with the interests of a national
community, the law of which constitutes an essential part of intra-
community relations within the State.
3. Basically, they can apply both Kuwaiti law and public international law.
They are not inconsistent with each other.
On the validity of the 1973 Agreement and the Abu Dhabi formula:
1. The 1973 Draft Agreement and the Abu Dhabi Formula were valid and
applicable to Aminoil’s Concession.
2. Aminoil owed to Kuwait what was due under the said agreement and
formula.
a. One of the allegations of Kuwait was that Aminoil did not pay the
amounts due based on the agreements.
On the issue of nationalization
1. The main issue regarding this is whether or not the Decree Law was a
valid act of nationalization.
a. The stabilization clause on the Concession Agreement, in essence,
prevented the Sheikh from unilaterally modifying or annulling the
concession, apart from certain grounds.
2. Tribunal said that the stabilization clause wasn’t a prohibition of
nationalization.
a. There was a change in circumstances considering that Kuwait
already became independent (note that they already terminated the
special relation with UK and they already had their Constitution).
b. Contractual limitations on the state’s right to nationalize are
juridically possible.
i. In the present case, the existence of such a stipulation would
have to be presumed as being covered by the stabilsation
clauses.
ii. A limitation on the sovereign rights of the State is all the less to
be presumed where the concessionaire is in any event
inpossession of important guarantees regarding its essential
interests in the shape of a legal right to eventual compensation.
c. So the stabilization clause no longer possessed its former absolute
character, rather, the clause prohibited nationalizations of
confiscatory character, meaning those without proper
indemnification.
3. If the tribunal holds that it can’t interpret the articles as absolutely
forbidding nationalization, it is nevertheless the fact that these
provisions are far from having lost all their value and efficacity on that
account since, by impliedly requiring that nationalization shall not have
any confiscatory character, they reinforce the necessity for a proper
indemnification as a condition of it.
On the indemnification
1. Kuwait: It owes no more to Aminoil than the net book value of the assets
transferred to the State.
2. Aminoil: Bring in all the revenues which it would have received up to the
expiry of the concessionary period, these revenues being quantified on the
basis of the 1961 Agreement by means of projections as to the amount of oil
produced, the cost of producing it, and the price of oil during the period.
3. Applicable general rules:
a. Tribunal considers that the determination of the amount of an award of
“appropriate” compensation is better carried out by means of an
enquiry into all the circumstances relevant to the particular concrete
case.
b. Even the Charter of the Economic Rights and Duties of States,
recommended taking into all the circumstances in order to determine
the amount of compensation—which does not in any way exclude a
substantial indemnity.
c. Compensation must be calculated on a basis such as to warrant the
upkeep of a flow of investment in the future.
d. Legitimate Expectations – there must necessarily be economic
calculations, weighing-up of rights and obligations, chances, risks,
constituting the contractual equilibrium.
4. Circumstances specific to Aminoil’s case:
a. For Aminoil they had 2 choices for methods:
i. Method based on the sum total of the anticipated profits, reckoned
to the natural termination of the Concession, but discounted at an
annual rate of interest in order to express that total in terms of its
“present value” on the day when the indemnification is due.
ii. Method whereby total anticipated profits are counted and
discounted in the same way over a limited period of years only, but
taking countervailing account of the value of the assets.
5. Tribunal agrees that both of the methods of Aminoil can be considered, but
it is better to employ a combination of methods.
a. But they also disagree with the assumption and calculations of Aminoil
on 2 points:
i. Tribunal can’t accept the projections as to the future of petroleum
industry based on the consultations of experts that the Company
 has relied upon. Since it has to be based on reasonable rates of
return.
b. Kuwait, on the other hand, claims that the only compensation Aminoil
was entitled to claim must be determined by precedents resulting from
a series of transnational negotiations and agreements about co
mpensation
i. But tribunal can’t use the basis of the government since: regarding
reasons of fact, the negotiations about compensation are complex
since they include a lot of things like bilateral agreements, etc and
not all contracts have been made public. It also claimed that in the
course of nationalizations of oil concessions that had occurred in
the Middle East, this method had acquired an international and
customary character.
6. The tribunal decided that it would be “just and reasonable” to take some
measure of account of all the elements of the undertaking:
a. Value of the undertaking itself (going concern)
b. Value of the totality of assets

Sir G. Fitzmaurice, Separate Opinion:

** I only included the important point in relation to the topic, which basically he just
said that just because you put in compensation it doesn’t mean na hindi na siya
confiscatory.
1. Concluded that Aminoil remound bound and liable for payments still due at
the date of the take-over for certain period.
2. Felt that Aminoil made reasonable offers regarding the Abu Dhabi account,
but Kuwait just didn’t accept it.
3. Regarding the stabilization clause, he said that the clauses aren’t really
concerned with confiscation, but actually terminating the Concession before
the time given.
a. It is illusory that monetary compensation alone removes the
confiscatory element from a take-over.
b. When a company procures insertion of such clause, the aim is not to
obtain the money if the article is breached, but to guarantee if possible
that it is not breached.
 010 Youmans v. United Mexican State (Perral)
November 23,1926 |International Tribunal | State Responsibilty
PETITIONER: Thomas H. Youmans
RESPONDENTS: United Mexicans States
SUMMARY: Claim for damages was made by US against United Mexican
States in behalf of Thomas Youmans, son of Henry Youmans, and 2 other
Americans, Connelly and Arnold. Youmans and the 2 other Americans were
employees enganged in the construction of San Hilario Tunnel in Mexico. The
construction was being done by Mexican laborers resident in the town under the
supervision of Americans. Connelly, the Managing Engineer in the construction,
had a controversy with a laborer, Cayentano Medina, over a sum of money the
latter insisted was due to him as wages. Connelly, however, ejected Medina from
his house. Subsequently after, Medina, along with several companions began to
throw stones at Connelly and approached him with a drawn machete. Connelly,
trying to frighten the assailants, fired shots in the air and then went inside his
house where Youmans and Arnold also reside. Medina and his companions
attempted to enter, and Connelly thereupon fired at Medina wounding his legs.
Soon, the house was surrounded by threatening mob. Connelly was driven back
to the house by the mob. Their employer then requested the Mayor to endeavor
to protect the Americans, but he was unable to quiet the mob. The Mayor then
ordered the Lieutenant of the Michoacan forces to quell the riot. However,the
troops,, upon arriving at the scdne, instead of dispersing the mob, opened fire in
the house, causing the death of Arnold. The mob renewed their attack against the
Americans and set fire to the roof forcing Connelly and Youmans to leave, and
as they did so, they were killed by the troops and members of the mob. Their
dragged through the streets and left on the side of the road so mutilated. The
United Mexican State argued that, It is not proved by evidence in the record that
the Mexican authorities were chargeable with negligence in the matter of
protecting the men who were killed; or that soldiers participated in the assault on
the men; or that proper efforts were not made to apprehend and punish the
persons participating in the attack. And that the Minister of Foreign Affairs
challenged the right of the United States to intervene in the cases on the ground
that the murdered men had not been matriculated (registered) under the Mexican
law. The Minister, in his reply, stated that the soldiers confessed to having
participated in the riot, alleging in excuse that they feared the vengeance of the
mob had they acted otherwise. The Commission held that, liability on the part of
the Mexican Government was sustained by the evidence in the record. The
record shows a lack of diligence in the punishment of the persons implicated in
the crime. Citations have been made to evidence with respect to the participation
of the soldiers in the killing of the three Americans. The judicial record also
shows that some soldiers were arrested but were not sentenced. Evidence before
the commission does not disclose whose weapons killed the Americans, but the
participation of the soldiers with the members of the mob is established.
DOCTRINE: With respect to the question of responsibility for the acts of
soldiers there are citations in the Mexican Government's brief of extracts from a
discussion of a subcommittee of the League of Nations Committee of Experts for
the Progressive Codification of International Law. The passage quoted, which
deals with the responsibility of a State for illegal acts of officials resulting in
damages to foreigners, begins with a statement relative to the acts of an official
accomplished "outside the scope of his competency, that is to say, if he has
exceeded his powers." An illegal act of this kind, it is stated in the quotation, is
one that cannot be imputed to the State.
Check last part of the digest.*
FACTS:
1. Claim for damagesin the amount of $50,000.00 is made in this case by the
United States of America against the United Mexican States in behalf of
Thomas H. Youmans, the son of Henry Youmans, an American citizen,
who, together with two other Americans, John A. Connelly and George
Arnold, was killed at the hands of a mob in Mexico. 

2. Henry Youmans, Connelly, and Arnold were employees engaged in the
construction of the San Hilario Tunnel in the town of Angangueo in the
State of Michoacán, Mexico. The construction was being done by Mexican
laborers resident in the town under the supervision of the Americans. 

3. On March 14, 1880, Connelly, the Managing Engineer in the construction,
had a controversy with a laborer, Cayentano Medina, over a sum of money
the latter insisted was due to him as wages. Connelly, however, ejected
Medina from his house. 

4. Subsequently after, Medina, along with several companions began to throw
stones at Connelly and approached him with a drawn machete. Connelly,
trying to frighten the assailants, fired shots in the air and then went inside
his house where Youmans and Arnold also reside. 

5. Medina and his companions attempted to enter, and Connelly thereupon
fired at Medina wounding his legs. Soon, the house was surrounded by
threatening mob. 

6. Connelly undertook to surrender to police authorities but failed to do so as
he was driven back to the house by the mob.
7. Their employer then requested the Mayor to endeavor to protect the
Americans, but he was unable to quiet the mob. The Mayor then ordered the
Lieutenant of the Michoacan forces to quell the riot.
8. However, the troops, upon arriving at the scene, instead of dispersing the
mob, opened fire in the house, causing the death of Arnold.
9. The mob renewed their attack against the Americans and set fire to the roof
forcing Connelly and Youmans to leave, and as they did so, they were killed
by the troops and members of the mob.
10. Their bodies were dragged through the streets and left under the pile of
stones by the side of the road so mutilated as scarcely to be recognizable.
11. CONTENTION OF THE RESPONDENT GOVERNMENT:
It is not
 proved by evidence in the record that the Mexican authorities were
chargeable with negligence in the matter of protecting the men who were
killed; or that soldiers participated in the assault on the men; or that proper
efforts were not made to apprehend and punish the persons participating in
the attack.
12. However, as per the communications sent to the Legation by the Director of
the company, there had been witnesses who saw the soldiers later on fire on
the Americans. Moreover, the American Consul General, who concealed his
official character and conducted an investigation, obtained evidence from
eye witnesses, and established that the appearance alone of the soldier
troops have been sufficient to have quelled the riot but instead they opened
fire on the Americans in the house which then encouraged the mob to
reopen their attack.
13. The Department of the State called the attention of the Mexican
government stating that on the plainest principles of international law and
independent of the treaty stipulations between the two nations, which are
contravened by such proceedings, renders the Government in whose
services they (soldiers) are employed, justly liable to the Government of the
men who were murdered.
 competency.”
14. The Minister of Foreign Affairs challenged the right of the United States to
intervene in the cases on the ground that the murdered men had not been
matriculated (registered) under the Mexican law. The Minister, in his reply,
stated that the soldiers confessed to having participated in the riot, alleging
in excuse that they feared the vengeance of the mob had they acted
otherwise.
ISSUE/s:
1. Whether there is liability on the part of the Mexican Government. –YES. The
liability on the part of the Mexican Government was sustained by the evidence in the
record.
RULING: The Commission therefore decides that the Government of the
United
Mexican States must pay to the Government of the United States of
America the sum of 520,000.00 dollars without interest on behalf of Thomas H.
Youmans.
RATIO:
295. The liability on the part of the Mexican Government was sustained by the
evidence in the record. The record shows a lack of diligence in the
punishment of the persons implicated in the crime. Citations have been
made to evidence with respect to the participation of the soldiers in the
killing of the three Americans. The judicial record also shows that some
soldiers were arrested but were not sentenced. Evidence before the
commission does not disclose whose weapons killed the Americans, but the
participation of the soldiers with the members of the mob is established.
296. With respect to the question of responsibility for the acts of soldiers there
are citations in the Mexican Government's brief of extracts from a
discussion of a subcommittee of the League of Nations Committee of
Experts for the Progressive Codification of International Law. The passage
quoted, which deals with the responsibility of a State for illegal acts of
officials resulting in damages to foreigners, begins with a statement relative
to the acts of an official accomplished "outside the scope of his competency,
that is to say, if he has exceeded his powers." An illegal act of this kind, it is
stated in the quotation, is one that cannot be imputed to the State.
297. Apart from the question whether the acts of officials referred to in this
discussion have any relation to the rule of international law with regard to
responsibility for acts of soldiers, it seems clear that the passage to which
particular attention is called in the Mexican Government's brief is
concerned solely with the question of the authority of an officer as defined
by domestic law to act for his Government with reference to some particular
subject. Clearly it is not intended by the rule asserted to say that no
wrongful act of an official acting in the discharge of duties entrusted to him
can impose responsibility on a Government under international law because
any such wrongful act must be considered to be "outside the scope of his
298. Citation is also made in the Mexican brief to an opinion rendered by
Umpire Lieber in which effect is evidently given to the well-recognized rule
of international law that a Government is not responsible for malicious acts
of soldiers committed in their private capacity. But the General Claims
Commission do not consider that the participation of the soldiers in the
murder at Angangueo can be regarded as acts of soldiers committed in their
private capacity when it is clear that at the time of the commission of these
acts the men were on duty under the immediate supervision and in the
presence of a commanding officer. Soldiers inflicting personal injuries or
committing wanton destruction or looting always act in disobedience of
some rules laid down by superior authority. There could be no liability
whatever for such misdeeds if the view were taken
Note:
• In this case, there was suppose to be a direct responsibility for the acts of
the soldiers (forces).
• There was also a denial if justice and failure to apprehend or punish
regarding the mob violence.
• Lastly, there was a Failure to Protect on the part of the United Mexican
States- Mexican military forces, under command of officer, instead of
protecting American citizens attacked by mob, opened fire on Americans, as
a result of which all were killed either by armed forces or by mob. No one
appeared to have been punished for the crime, though some prosecutions
were begun.
 011 CAIRE CLAIM CASE (FRANCE v. MEXICO) (Pleyto)
1929 | Justice, J. | State Responsibility
PETITIONER: France
RESPONDENTS: Mexico
SUMMARY: (medyo the whole ratio is placed here na) On Dec. 11, 1914, Jean-
Baptiste Caire, a French national, was shot and killed by two Mexican army
officers for refusing (or being unable) to obtain a large of money that they
requested. France pursued a claim against the Mexican government. The French-
Mexican Claims Commission ruled that Mexico was internationally responsible
for the conduct of the army offices. The issue is WoN Mexico could be
responsible for the actions of individual military personnel who were acting
without orders and against the wishes of the commanding officer. SC held yes,
Mexico is internationally responsible. In this regard, Presiding Commissinoer
Verzijl observed that, under the doctrine of objective responsibility (state
responsibility for the acts of state officials or state organs even in the absence of
“fault” on the part of the state), a state is internationally responsible for acts
committed by its officials or organs outside their competence if the officials or
organs “acted at least to all appearances as competent officials or organs,
or …used powers or methods appropriate to their official capacity…” In the case
at bar, The officers in question whatever their previous record, consistently
conducted themselves as officers in the brigade of the Villista General, Tomas
Urbina. In this capacity, they began by exacting the remittance of certain sums of
money. They continued by having the victim taken into the barracks of the
occupying troops. It was clearly because of the refusal of M. Claire to meet their
repeated demands that they finally shot him. Under the circumstances, there
remains no doubt that even if they are to be regarded as having acted outside for
their competence, which is by no means certain, and even if their superior
officers issued a counter-order, these two officers have involved the
responsibility of the State, in view of the fact that they have acted in their
capacity of officers and used the means placed at their disposition by virtue of
that capacity
DOCTRINE: A state may be held internationally responsible for the
unauthorized acts of state officials, such as the unlawful killing of a foreing
national by an army or police officer, where those officials purported to act in an
official capacity and “used the means placed at their disposition by virtue of that
capacity.” Under the doctrine of objective responsibility (state responsibility for
the acts of state officials or state organs even in the absence of “fault” on the part
of the state), a state is internationally responsible for acts committed by its
officials or organs outside their competence if the officials or organs “acted at
least to all appearances as competent officials or organs, or …used powers or
methods appropriate to their official capacity…”
*note: I can’t find the original so this is a combination of different digests. Sorry!
FACTS:
277. On Dec. 11, 1914, M Jean-Baptiste Caire, a French national, was asked to
obtain a large sum of money by a Major in the Mexican Army
278. He was unable to obtain it and was subsequently arrested, tortured, shot and
killed by soldiers at an army barracks in Mexico by two Mexican army
officers (a major and a captain, aided by a few privates)
a. Sa isang digest naman: he refused to demand a by one of the
officers to pay a sum of money
279. France successfully pursued a claim against the Mexican government
280. This was heard by the French-Mexican Claims Commission (Commission)
281. In awarding an indemnity in the sum of 20,000 Mexican gold piasters in
favour of M Caire’s widow, the Commission held that Mexico was
internationally responsible for the conduct of the army officers
ISSUE/s:
69. WoN Mexico could be responsible for the actions of individual military
personnel who were acting without orders and against the wishes of the
commanding officer – YES, because state is internationally responsible for
acts committed by its officials or organs outside their competence if the
officials or organs “acted at least to all appearances as competent officials
or organs, or …used powers or methods appropriate to their official
capacity…”
RULING: In accordance with the most authoritative doctrine supported by
numerous arbitral awards, the events of Dec. 11, 1914, which led to the death of
MJB Caire, fall within the category of acts for which international responsibility
devolves upon the State to which the perpetrators of the injury are amenable.
RATIO:
299. The French-Mexican Claims Commission held that Mexico was
internationally responsible for the conduct of the army officers.
300. In this regard, Presiding Commissinoer Verzijl observed that, under the
doctrine of objective responsibility (state responsibility for the acts of state
officials or state organs even in the absence of “fault” on the part of the
state), a state is internationally responsible for acts committed by its
officials or organs outside their competence if the officials or organs “acted
at least to all appearances as competent officials or organs, or …used
powers or methods appropriate to their official capacity…”
301. The perpetrators of the murder of MJB Caire were military personnel
occupying the ranks of “mayor” and “captain primero” aided by few
privates
302. it is found that the conditions of responsibility formulated above are
completely fulfilled
303. The officers in question whatever their previous record, consistently
conducted themselves as officers in the brigade of the Villista General,
Tomas Urbina
 304. In this capacity, they began by exacting the remittance of certain sums of
money
305. They continued by having the victim taken into the barracks of the
occupying troops
306. It was clearly because of the refusal of M. Claire to meet their repeated
demands that they finally shot him
307. Under the circumstances, there remains no doubt that even if they are to be
regarded as having acted outside for their competence, which is by no
means certain, and even if their superior officers issued a counter-order,
these two officers have involved the responsibility of the State, in view of
the fact that they have acted in their capacity of officers and used the means
placed at their disposition by virtue of that capacity

I found a digest that compared this case with Bernard v. Atty. Gen. of Jamaica (pero
irrelevant kasi hindi naman assigned yung Bernard pero I’ll put it here in case magis
kayo): A comparison with vicarious liability in municipal law
1. In Jean-Baptiste Caire Claim, the unlawful conduct of the army who killed
M. Caire was imputed or attributed to Mexico for the purposes of state
responsibility
2. An analogy in municipal law is the vicarious liability in tort of an employer
for the conduct of an employee in the course of employment
3. In the latter context, provided that there is a sufficient connection between
the employees’s conduct and the course of employment, an employer may
be held vicariously liable in tort for the criminal act of an employee, such as
the sexual assault of resident children committed by the warden of a
boarding school (Lister v. Hesley Hall Ltd)
4. The reasoning in Caire may be compared with the decision of the Privy
Council in Bernard v. Attorney General of Jamaica (2004)
5. In this case, a police officer purporting to act in that capacity, unlawfully
shot Mr. Clinton Bernard in the head at point-blank range when Bernard
refused to comply with the police officer’s demand that the police officer be
given the use of a public telephone before Bernard had completed the call
he was making
6. In a judgment delivered by Lord Steyn, the Privy Council held that the
Crown, as the police officer’s employer, was vicariously liable in tort for
the police officer’s unlawful, and almost certainly criminal conduct.
7. In this regard, the Privy Council emphasized that, although the police
officer was off-duty at the time of the incident, the police officer had
purported to act in an official capacity and had used the service revolver
which off-duty police officers routinely were permitted to carry
8. Adapting the language of Presiding Commissioner Verzijl in Caire, the
police officer in Bernard engaged the vicarious liability of the Crown in
view of the fact he had purported to act in his capacity as a police officer
and had used the means placed at his disposition by virtue of that capacity
 011 CAIRE CLAIM CASE (FRANCE v. MEXICO) (Pleyto)
1929 | Justice, J. | State Responsibility
PETITIONER: France
RESPONDENTS: Mexico
SUMMARY: (medyo the whole ratio is placed here na) On Dec. 11, 1914, Jean-
Baptiste Caire, a French national, was shot and killed by two Mexican army
officers for refusing (or being unable) to obtain a large of money that they
requested. France pursued a claim against the Mexican government. The French-
Mexican Claims Commission ruled that Mexico was internationally responsible
for the conduct of the army offices. The issue is WoN Mexico could be
responsible for the actions of individual military personnel who were acting
without orders and against the wishes of the commanding officer. SC held yes,
Mexico is internationally responsible. In this regard, Presiding Commissinoer
Verzijl observed that, under the doctrine of objective responsibility (state
responsibility for the acts of state officials or state organs even in the absence of
“fault” on the part of the state), a state is internationally responsible for acts
committed by its officials or organs outside their competence if the officials or
organs “acted at least to all appearances as competent officials or organs,
or …used powers or methods appropriate to their official capacity…” In the case
at bar, The officers in question whatever their previous record, consistently
conducted themselves as officers in the brigade of the Villista General, Tomas
Urbina. In this capacity, they began by exacting the remittance of certain sums of
money. They continued by having the victim taken into the barracks of the
occupying troops. It was clearly because of the refusal of M. Claire to meet their
repeated demands that they finally shot him. Under the circumstances, there
remains no doubt that even if they are to be regarded as having acted outside for
their competence, which is by no means certain, and even if their superior
officers issued a counter-order, these two officers have involved the
responsibility of the State, in view of the fact that they have acted in their
capacity of officers and used the means placed at their disposition by virtue of
that capacity
DOCTRINE: A state may be held internationally responsible for the
unauthorized acts of state officials, such as the unlawful killing of a foreing
national by an army or police officer, where those officials purported to act in an
official capacity and “used the means placed at their disposition by virtue of that
capacity.” Under the doctrine of objective responsibility (state responsibility for
the acts of state officials or state organs even in the absence of “fault” on the part
of the state), a state is internationally responsible for acts committed by its
officials or organs outside their competence if the officials or organs “acted at
least to all appearances as competent officials or organs, or …used powers or
methods appropriate to their official capacity…”
*note: I can’t find the original so this is a combination of different digests. Sorry!
FACTS:
282. On Dec. 11, 1914, M Jean-Baptiste Caire, a French national, was asked to
obtain a large sum of money by a Major in the Mexican Army
283. He was unable to obtain it and was subsequently arrested, tortured, shot and
killed by soldiers at an army barracks in Mexico by two Mexican army
officers (a major and a captain, aided by a few privates)
a. Sa isang digest naman: he refused to demand a by one of the
officers to pay a sum of money
284. France successfully pursued a claim against the Mexican government
285. This was heard by the French-Mexican Claims Commission (Commission)
286. In awarding an indemnity in the sum of 20,000 Mexican gold piasters in
favour of M Caire’s widow, the Commission held that Mexico was
internationally responsible for the conduct of the army officers
ISSUE/s:
70. WoN Mexico could be responsible for the actions of individual military
personnel who were acting without orders and against the wishes of the
commanding officer – YES, because state is internationally responsible for
acts committed by its officials or organs outside their competence if the
officials or organs “acted at least to all appearances as competent officials
or organs, or …used powers or methods appropriate to their official
capacity…”
RULING: In accordance with the most authoritative doctrine supported by
numerous arbitral awards, the events of Dec. 11, 1914, which led to the death of
MJB Caire, fall within the category of acts for which international responsibility
devolves upon the State to which the perpetrators of the injury are amenable.
RATIO:
308. The French-Mexican Claims Commission held that Mexico was
internationally responsible for the conduct of the army officers.
309. In this regard, Presiding Commissinoer Verzijl observed that, under the
doctrine of objective responsibility (state responsibility for the acts of state
officials or state organs even in the absence of “fault” on the part of the
state), a state is internationally responsible for acts committed by its
officials or organs outside their competence if the officials or organs “acted
at least to all appearances as competent officials or organs, or …used
powers or methods appropriate to their official capacity…”
310. The perpetrators of the murder of MJB Caire were military personnel
occupying the ranks of “mayor” and “captain primero” aided by few
privates
311. it is found that the conditions of responsibility formulated above are
completely fulfilled
312. The officers in question whatever their previous record, consistently
conducted themselves as officers in the brigade of the Villista General,
Tomas Urbina
 313. In this capacity, they began by exacting the remittance of certain sums of
money
314. They continued by having the victim taken into the barracks of the
occupying troops
315. It was clearly because of the refusal of M. Claire to meet their repeated
demands that they finally shot him
316. Under the circumstances, there remains no doubt that even if they are to be
regarded as having acted outside for their competence, which is by no
means certain, and even if their superior officers issued a counter-order,
these two officers have involved the responsibility of the State, in view of
the fact that they have acted in their capacity of officers and used the means
placed at their disposition by virtue of that capacity

I found a digest that compared this case with Bernard v. Atty. Gen. of Jamaica (pero
irrelevant kasi hindi naman assigned yung Bernard pero I’ll put it here in case magis
kayo): A comparison with vicarious liability in municipal law
9. In Jean-Baptiste Caire Claim, the unlawful conduct of the army who killed
M. Caire was imputed or attributed to Mexico for the purposes of state
responsibility
10. An analogy in municipal law is the vicarious liability in tort of an employer
for the conduct of an employee in the course of employment
11. In the latter context, provided that there is a sufficient connection between
the employees’s conduct and the course of employment, an employer may
be held vicariously liable in tort for the criminal act of an employee, such as
the sexual assault of resident children committed by the warden of a
boarding school (Lister v. Hesley Hall Ltd)
12. The reasoning in Caire may be compared with the decision of the Privy
Council in Bernard v. Attorney General of Jamaica (2004)
13. In this case, a police officer purporting to act in that capacity, unlawfully
shot Mr. Clinton Bernard in the head at point-blank range when Bernard
refused to comply with the police officer’s demand that the police officer be
given the use of a public telephone before Bernard had completed the call
he was making
14. In a judgment delivered by Lord Steyn, the Privy Council held that the
Crown, as the police officer’s employer, was vicariously liable in tort for
the police officer’s unlawful, and almost certainly criminal conduct.
15. In this regard, the Privy Council emphasized that, although the police
officer was off-duty at the time of the incident, the police officer had
purported to act in an official capacity and had used the service revolver
which off-duty police officers routinely were permitted to carry
16. Adapting the language of Presiding Commissioner Verzijl in Caire, the
police officer in Bernard engaged the vicarious liability of the Crown in
view of the fact he had purported to act in his capacity as a police officer
and had used the means placed at his disposition by virtue of that capacity
 012 US Diplomatic and Consular Staff in Tehran/US v Iran (Punsalan)
May 24, 1980 | ICJ | State responsiblity
SUMMARY: Muslim Student Followers of the Imam’s Policy (Iranian militants)
stormed the US embassy in Tehran on Nov. 4, 1979 in retaliation to US Pres.
Jimmy Carter giving the Shah asylum in the U.S. during the Iranian Revolution.
Around 60 of the embassy staff were taken as hostages. The Iranian authorities have
refrained from taking action from the said event, despite having similar occasions
wherein the same authorities did take appropriate action. Though it was the Iranian
Govt’s duty to take appropriate steps to end the infringement of the inviolability of
the Embassy premises and staff and also offer repatriation, expressions of approval
were instead immediately heard from numerous Iranian authorities. The 6 months
which ensued after Nov. 4, 1979, nothing material happened and Iranian authorities
continued to subject the Embassy “under arrest.”
Issue: WoN Iran has violated and continues to violate international obligations it
owes to US through the Vienna Convention on Consular Relations and other treaties
– YES (proceed to doctrine)
DOCTRINE: Iran violated and continues to violate international obligations it owes
to US by continuing to subject such staff under detention. The Iranian Government
had international obligations to: (1) Ensure the immediate release of the hostages; (2)
Afford the US diplomatic and consular personnel the protection and immunities to
which they were entitled (including immunity from criminal jurisdiction); (3)
Provide them with facilities to leave Iran; (4) Submit the persons responsible for the
crimes committed to the competent Iranian authorities for prosecution or extradite
them to the US and (5) Pay the US reparation in a sum to be subsequently
determined by the ICJ
Trivial Info: If you’ve watched the 2012 film Argo, good for you because this is its case.
I took some of the facts from the plot of the movie and researched some stuff to better
explain the case.
FACTS:
287. NOTE: Iran did not appear before the ICJ to put forward its arguments
288. The ICJ was prompted to follow Article 53 of the Statute (Vienna Convention)
in which it is required to satisfy itself that the allegations of fact by the US are
well founded.
a. The US presented documents to the ICJ which contain “a massive
body of information from various sources, including numerous
official statements of both Iranian and US authorities.” (that’s
what it said in the case, no other details)
b. The information has been concordant to the main facts and has all
been communicated to Iran without evoking any denial.
Jurisdiction
289. The US cited 4 instruments as bases for the ICJ’s jurisdiction to deal with its
claims. Except for Art. 13 of the 1973 Convention on the Prevention and
Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents, the ICJ finds three of them as bases, namely:
a. (2) Optional Protocols to the 1961 and 1963 Vienna Conventions
b. (1) 1955 Treaty of Amity, Economic Relations, and Consular Rights
between US and Iran
Events of Nov. 4, 1979
290. Muslim Student Followers of the Imam’s Policy (Iranian militants) stormed the
US embassy in Tehran in retaliation for US Pres. Jimmy Carter giving the
Shah asylum in the U.S. during the Iranian Revolution. They overran its
premises, seized inmates as hostages and appropriated property and
archives.
291. 60 of the embassy staff were taken as hostages while 6 avoid capture and are
sheltered in the home of a Canadian Ambassador.
292. The ICJ points out that the conduct of the Iranian militants could be directly
attributed to the Iranian State only if it were established that they were in fact
acting on its behalf. (Court could not determine this with due certainty)
293. The Iranian State did nothing to prevent the attack, stop it before it
reached its completion or oblige the militants to withdraw from the
premises and release the hostages. There were similar occasions beforehand
where Iranian authorities DID take appropriate steps
Events since Nov. 4, 1979
294. Though it was the Iranian Govt’s duty to take appropriate steps to end the
infringement of the inviolability of the Embassy premises and staff plus offer
repatriation, expressions of approval were instead immediately heard from
numerous Iranian authorities.
a. Iran supreme leader Ayatollah Khomeini (a known politician in Iraq)
himself proclaimed the Iranian State’s endorsement of both the seizure
of the premises and detention of the hostages
b. He described the Embassy as a “centre of espionage”
c. He also said that the hostages would remain “under arrest” until the
US had returned the former Shah and his property to Iran
295. During the 6 months which ensued, the situation underwent no material change.
The Iranian authorities continue to subject the Embassy to occupation and to
detain the staff as hostages.
US operation in Iran on April 24-25, 1980 (Operation Eagle Claw/Operation Tabas)
296. US Armed Forces operation ordered by US President Jimmy Carter to attempt
to end the Iran hostage crisis by rescuing 52 embassy staff held captive at the
US Embassy in Tehran.
297. The operation took on Ayatollah Khomeini. Part of the reason it failed was
because of the sandstorm that occurred which led to numerous helicopter
failures, some even died because of it. Khomeini describes the sandstorms as
“agents of Allah” who foiled the US conspiracy to protect Iran.
298. This damaged US prestige worldwide because it failed to win the release of the
hostages.
ISSUE/s:
71. WoN Islamic Republic of Iran continues to violate obligations owed by it to the
United States – YES, because of the continued detention of the US Embassy
 personnel situated in Iran which has been afforded protection and immunities
entitled to them by international obligations.
RULING: 1. By 13 votes to 2
Decides that the Islamic Republic of Iran has violated in several respects, and is still violating,
obligations owed by it to the United States of America under international conventions in force
between the two countries, as well as under long-established rules of general international law;
2. By 13-2 votes
Decides that the violations of these obligations engage the responsibility of the Islamic Republic of
Iran towards the United States of Anierica under international law;
3. Unanimously,
Decides that the Government of the Islamic Republic of Iran must immediately take all steps to
redress the situation resulting from the events of 4 November 1979 and what followed from these
events, and to that end:
(a) must immediately terminate the unlawful detention of the United States Charge d'affaires and
other diplomatic and consular staff and other United States nationals now held hostage in Iran, and
must immediately release each and every one and entrust thein to the protecting Power (Article 45
of the 1961 Vienna Convention on Diplomatic Relations);
(b) must ensure that all the said persons have the necessary means of leaving Iranian territory,
including means of transport;
(c) must immediately place in the hands of the protecting Power the premises, property, archives
and documents of the United States Embassy in Tehran and of its Consulates in Iran,
4. Unanimously,
Decides that no member of the United States diplomatic or consular staff may be kept in Iran to be
subjectted to any form of judicial proceedings or to participate in them as a witness;
5. By 12-3:
Decides that the Governinnent of the Islamic Republic of Iran is under an obligation to make
reparation to the Govemment of the United States of America for the: injury caused to the latter by
the events of 4 November 19'79 and what followed from these events;
6. By 14-1:
Decides that the form and amount of such reparation, failing agreement between the Parties, shall
be settled by the Court, and reserves for this purpose the subseqluent procedure in the case.
RATIO:
On the events of Nov. 4, 1971
317. The Iranian Government had international obligations to:
a. Ensure the immediate release of the hostages
b. Afford the US diplomatic and consular personnel the protection and
immunities to which they were entitled (including immunity from
criminal jurisdiction)
c. Provide them with facilities to leave Iran
d. Submit the persons responsible for the crimes committed to the
competent Iranian authorities for prosecution or extradite them to the
US
e. Pay the US reparation in a sum to be subsequently determined by the
ICJ
318. The ICJ is led to conclude that during this time, Iranian authorities were fully
aware of their obligations under the conventions in force, and also of the
urgent need for action on their part, that they had the means at their disposal
to perform their obligations but they completely failed to do so.
319. It constituted a clear and serious violation of Iran’s obligations to the US under:
a. Arts. 22(2), 24, 25, 26, 27, and 29 of the 1961 Vienna Convention on
Diplomatic Consular Relations
b. Arts. 5 and 36 of the 1963 Vienna Convention on Consular Relations
c. Art. II(4) of the 1955 Treaty
d. Further breaches had been involved in failure to protect the Consulates
at Tabriz and Shiraz.
On events since Nov. 4, 1979
320. Once organs of the Iranian State had given approval to the acts complained of
and decided to perpetuate them as a means of pressure on the US, those acts
were transformed into acts of the Iranian State.
a. The Iranian militants became agents of that State, the State becoming
internationally responsible for their acts
321. Iran even publicly rejected the Court’s Order of 15 December 1979 while
declaring that the detention of the hostages would continue until the new Iranian
parliament had taken a decision as to their fate.
322. Their decision to continue the subjection of the Embassy gave rise to repeated
and multiple breaches of Iran’s treay obligations, additional to those
already committed at the time of the seizure of the Embassy.
323. With regard to the Charge d'affaires and 2 other members of the US mission
who have been in the Iranian Ministry of Foreign Affairs since Nov. 4,
1979, the ICJ fnds that the Iranian authorities have withheld from them the
protection and facilities necessary to allow them to leave the Ministry in
safety which is a breach of Arts. 26 and 29 of the 1961 Vienna Convention.
On Operation Eagle Claw (April 24-25, 1980)
324. The ICJ said that it cannot fail to express its concern and is bound to observe
that an operation undertaken by US is calculated to undermine respect for the
judicial processes in international relations.
325. However, the question of legality of the operation has no bearing on the
evaluation of Iran’s conduct on Nov. 4, 1979. ICJ’s findings are therefore
unaffected.
326. J. Morozov: dissenting
a. Judgment is drafted in such a way that it is not limited to the question of the
violation of the Vienna Convention of 1961 and 1963 but also covers the
question of alleged violations of the 1955 Treaty of Amity, Economic
Relations and Consular Rights between Iran and US.
b. He believes the treaty does not provide the parties with an unconditional right
to invoke the compulsory jurisdiction of the ICJ, and in the circumstances, the
Court has in fact no competence to consider the alleged violations.
c. Moreover, he states that US also committed unlawful actions during the
period of judicial deliberations of the ICJ, culminating in the military invasion
of Iran (Operation Eagle Claw), and has therefore lost the legal right to refer
to the Treaty in its relations with Iran.
 013 Short v. U.S.A. (United States v. Iran) (Cristelle)
Ju, 2012 | Perlas-Bernabe, J. |State responsibility
PETITIONER: Alfred Short
RESPONDENTS: Iran
SUMMARY: Alfred Short, an American citizen, was employed by an
American company in Iran. During his stay there was an Islamic
revolution which was accompanied by intense anti-US sentiment and
acts of violence against the US property and US nationals. A case was
filed by the US against Iran in respect of the alleged wrongful
expulsion from Iran of a US national, Alfred Short, with consequential
loss of personal property and employment Income. He alleged that
“following the onset of the Islamic revolution in late 1978 and the
subsequent declaration of martial law he was virtually under house
arrest, living with progressively increasing stress caused by vehement
threats against the lives of Americans, shooting in the streets,
firebombing of American homes and automobiles, and other violence
propagated by revolutionaries against Americans”. Alfred Short was
evacuated in haste from Iran by the United States Air Force in February
1979. Issue: Whether the facts invoked by Alfred Short as having
caused his departure from Iran are attributable to Iran, either
directly, or indirectly as a result of its deliberate policies, or
whether they reveal a lack of due diligence in meeting Iran’s
international duties towards the Claimant? No, Alfred Short’s
claims were not sufficient and lacked proof to prove that Iran is liable
for his wrongful expulsion. Similarly, it cannot be said that the
declarations referred to by Alfred Short amounted to an authorization to
revolutionaries to act in such a way that he should be forced to leave
Iran forthwith. Nor is there any evidence that any action prompted by
such statements was the cause of the Claimant’s decision to leave Iran.
In this case, Alfred Short is unable to identify any agent of the
revolutionary movement, the actions of which compelled him to
leave Iran. The acts of supporters of a revolution [as opposed to its
agents] cannot be attributed to the government.
DOCTRINE: State responsibility refers to ‘liability’ of a state under
international law. Responsibility arises from the breach by a State of an
international obligation. That obligation can be one of customary
international law or a treaty obligation. The conduct of an
insurrectional movement which becomes the new government of a state
shall be considered an act of that state under international law. Where
a revolution leads to the establishment of a new government the
State is held responsible for the acts of the overthrown government
insofar as the latter maintained control of the situation. The
successor government is also held responsible for the acts
imputable to the revolutionary movement which established it,
even if those acts occurred prior to its establishment, as a
consequence of the continuity existing between the new
organization of the State and the organization of the revolutionary
movement. The common thread is that the international
responsibility of a State can be engaged where the circumstances or
events causing the departure of the alien are attributable to it.
FACTS:
1. About 45,000 United States nationals left Iran during the 4 month
period of the Islamic revolution in that country which was
accompanied by intense anti-United States sentiment and acts of
violence against United States owned property and United States
nationals.
2. This case, is in the nature of a test case, which was filed by the
United States against Iran in respect of the alleged “wrongful
expulsion” from Iran of a United States national, Alfred Short,
with consequential loss of personal property and employment
income.
3. Mr. Short commenced employment with a United States owned
company in Iran in April 1977.
4. He alleged that “following the onset of the Islamic revolution in
late 1978 and the subsequent declaration of martial law he was
virtually under house arrest, living with progressively increasing
stress caused by vehement threats against the lives of Americans,
shooting in the streets, firebombing of American homes and
automobiles, and other violence propagated by revolutionaries
against Americans”.
5. Alfred Short was evacuated in haste from Iran by the United States
Air Force in February 1979.
ISSUES: Whether the facts invoked by Alfred Short as having caused his
departure from Iran are attributable to Iran, either directly, or indirectly as a
result of its deliberate policies, or whether they reveal a lack of due diligence
in meeting Iran’s international duties towards the Claimant? No, Alfred
Short’s claims were not sufficient and lacked proof to prove that Iran is liable
for his wrongful expulsion. Similarly, it cannot be said that the declarations
referred to by Alfred Short amounted to an authorization to revolutionaries to
act in such a way that he should be forced to leave Iran forthwith. Nor is
there any evidence that any action prompted by such statements was the
cause of the Claimant’s decision to leave Iran.
RULING: In these circumstances, the Tribunal is of the view that the
Claimant has failed to prove that his departure from Iran can be
imputed to the wrongful conduct of Iran. The claim is therefore
dismissed.
RATIO:
1. Classical case - the expulsion of an alien is effected by a legal order
issued by the State authorities obligating the alien to leave the host
country or otherwise be forcibly removed. An expulsion can also be
the result of a forcible action of the police or other state organ not
authorized by a legal order issued by the competent authorities.
2. An alien may also be considered wrongfully expelled in the absence
of any order or specific state action, when, in the circumstances of
the case, the alien could reasonably be regarded as having no other
choice than to leave and when the acts leading to his departure were
attributable to the State.
3. The common thread is that the international responsibility of a
State can be engaged where the circumstances or events causing
the departure of the alien are attributable to it. On the other
hand, to assume that all the departures of all aliens of a certain
nationality from a country, during a certain period of political
turmoil, would be attributable to the State, unless the State is able to
demonstrate the contrary, would contradict the principles and rules
of the international responsibility of States. (Claimant needs proof
for the state to be liable)
4. In examining whether the Claimant’s departure from Iran was due to
acts or circumstances attributable to the Respondent [Iran], the
Tribunal has to take into account the existence of a revolutionary
situation in Iran during the period under consideration.
a. The reports that many thousands of Iranians lost their lives
in the course of these revolutionary events is an indicator of
the magnitude of the turmoil associated with the Revolution.
As a result of this turmoil, the successive governments
appointed by the Shah lost control over events and the
last of them was eventually overthrown. While the
revolution was directed against the Shah’s regime the
revolutionaries believed that the American government
was responsible for maintaining him in power.
b. The strong anti-American sentiment documented in the
Claimant’s Factual Memorial was the consequence of this
belief and gave to Americans present in Iran reason to
believe that their lives were in danger. (His claim led to a
danger not proved)
5. Where a revolution leads to the establishment of a new
government the State is held responsible for the acts of the
overthrown government insofar as the latter maintained control
of the situation. The successor government is also held
responsible for the acts imputable to the revolutionary
movement which established it, even if those acts occurred prior
to its establishment, as a consequence of the continuity existing
between the new organization of the State and the organization
of the revolutionary movement.
a. These rules are of decisive importance in the present Case,
since the Claimant departed from Iran on 8 February 1979, a
few days before the proclamation on 11 February of the
Islamic Revolutionary Government. At that time, the
revolutionary movement had not yet been able to establish
control over any part of Iranian territory, and the
Government had demonstrated its loss of control.
6. Alfred short’s arguments: Relies on acts committed by
revolutionaries and seeks to attribute responsibility for their acts
to the government that was established following the success of
the Revolution.
a. He is unable, however, to identify any agent of the
revolutionary movement, the actions of which compelled
him to leave Iran. The acts of supporters of a revolution
cannot be attributed to the government following the
success of the revolution just as the acts of supporters of
an existing government are not attributable to the
government.
b. This was clearly recalled by the International Court of
Justice in United States Diplomatic and Consular Staff in
Tehran (United States v. Iran). The Court found that the
conduct of the militants when they executed their attack
on the U.S. Embassy and seized its personnel as hostages
“might be considered as itself directly imputable to the
Iranian State only if it were established that, in fact, on
the occasion in question, the militants acted on behalf of
the State, having been charged by some competent organ
of the Iranian State to carry out a specific operation”.
c. Reliance on the declarations made by the leader of the
Revolution, Ayatollah Khomeini, and other spokesmen of
the revolutionary movement, also lack the essential
ingredient as being the cause for the Claimant’s departure in
circumstances amounting to an expulsion.
 d. SUMMARY OF ALFRED SHORT’S ARGUMENTS:
While these statements are of anti-foreign and in particular
anti-American sentiment, the Tribunal notes that these
pronouncements were of a general nature and did not
specify that Americans should be expelled en masse.
7. The Court recognized that prior to the attack against the U.S.
Embassy “the Ayatollah Khomeini, the religious leader of the
country, had made several public declarations inveighing against
the United States as responsible for all his country’s problems”.
a. The Court went on to quote a specific message of the
Ayatollah Khomeini declaring that it was “up to the dear
pupils, students and theological students to expand with all
their might their attacks against the United States and Israel,
so they may force the United States to return the deposed
and criminal Shah, and to condemn this great plot”.
Nevertheless, the Court found that “it would be going too far
to interpret such general declarations as amounting to an
authorization from the State to undertake the specific
operation of invading and seizing the United States
Embassy”.
b. Similarly, it cannot be said that the declarations referred
to by the Claimant amounted to an authorization to
revolutionaries to act in such a way that the Claimant
should be forced to leave Iran forthwith. Nor is there
any evidence that any action prompted by such
statements was the cause of the Claimant’s decision to
leave Iran.
 014 Home Frontier Society v. Great Britain (Rosales)
Dec. 18, 1920 | UN Tribunal | State Responsibility
PETITIONER: United States of America
RESPONDENTS: Great Britain
SUMMARY: In 1898 the collection of a tax newly imposed by Great Britain on
the natives of the Protectorate of Sierra Leon and known as the “hut tax” was the
signal for a serious and widespread revolt in the Rionetta district. In the course
of the rebellion all the claimant’s missions were attacked and either destroyed or
damaged, and some of the missioners were murdered. The contention of the US
before the tribunal was that the revolt was the result of the imposition and
attempt to collection of the ‘hut tax’; that it was within the knowledge of the
British government that this tax was the object of deep native resentment; that
the British government wholly failed to take proper steps for the maintenance of
order. ISSUE is WoN the revolt is attributable to the British Government? The
SC held that it is not because no government can be held responsible for the act
of rebellious bodies of men committed in violation of its authority, where it is
itself guilty of no breach of good faith, or of no negligence in suppressing
insurrection. Even assuming that the “hut tax” was the effective cause of the
native rebellion, it was in itself a fiscal measure to which the British Government
was perfectly entitled to exercise.
DOCTRINE: It is well-established principle of international law that no
government can be held responsible for the act of rebellious bodies of men
committed in violation of its authority, where it is itself guilty of no breach of
good faith, or of no negligence in suppressing insurrection.
FACTS:
299. In 1898, the collection of a tax newly imposed on the natives of Protectorate
and known as the “hut tax” was the signal for a serious and widespread
revolt in the Ronietta district. The revolt broke out on April 27 which lasted
for several days. As is common in the more uncivilized parts of Africa, it
was marked by every circumstance of cruelty and by undiscriminating
attacks on the persons and properties of all Europeans.
300. In the course of the rebellion, all the missions were attacked, and either
destroyed or damaged and some of the missionaries were murdered. The
rising was quickly suppressed and law and order enforced with firmness and
promptitude. Such of the guilty natives as could be caught were prosecuted
and punished.
301. A Royal Commissioner was appointed by the British Government to inquire
into the circumstances of the insurrection and into the general position of
affairs in the Colony and Protectorate. In his report, as well as from the
Colonial Governor, the Secretary of State for the Colonies came to the
conclusion that though some mistakes might have been made in the
execution, the line of policy pursued was right in its main outlines and that
the scheme of administration would prove a valuable instrument for the
peaceful development of the Protectorate and the civilization and well-being
of its inhabitants.
302. On February 21, 1899, the US Government through its Embassy in London,
brought the fact of the losses sustained by the Home Missionary Society to
the attention of the British Government. In his reply on October 14, 1899,
Lord Salisbury repudiated liability on behalf of the British Government
with an expression of regret that sensible as it was of the worth of the
srvices of the American missionaries, there was no fund from which, as an
act of grace, compensation could be awarded.
303. The contention of the US Government before the Tribunal is that the revolt
was the result of the imposition and attempted collection of the “hut tax”;
that it was within the knowledge of the British Government that this tax was
the object of deep native resentment; that in the face of the native danger the
British Government wholly failed to take proper steps for the maintenance
of order and protection of life and property; that loss of life and damage to
property was result of neglect and failure of duty and therefore it is liable to
pay compensation.
ISSUE/s:
72. WoN revolt is attributable to the British Government – NO, because no
government can be held responsible for the act of rebellious bodies of men
committed in violation of its authority, where it is itself guilty of no breach
of good faith, or of no negligence in suppressing insurrection.
RULING: For these reasons and subject to this recommendation, the Tribunal
decides that this claim must be dismissed.
RATIO:
327. Even assuming that the “hut tax” was the effective cause of the native
rebellion, it was in itself a fiscal measure in accordance not only with
general usage in colonial administration, but also with the usual practice in
African countries.
328. It was a measure to which the British Government was perfectly entitled to
resort in the legitimate exercise of its sovereignty, if it was required. Its
adoption was determined by the course of its policy and system of
administration.
329. Further, though it may be true that some difficulty might have been
foreseen, there was nothing to suggest that it would be more serious than is
usual and inevitable in a semi-barbarous and only partially colonized
protectorate, and certainly nothing to lead to any apprehension of
widespread revolt.
330. It is well-established principle of international law that no government
can be held responsible for the act of rebellious bodies of men
committed in violation of its authority, where it is itself guilty of no
breach of good faith, or of no negligence in suppressing insurrection.
331. The good faith of the British government cannot be questioned and as to the
conditions prevailing in the Protectorate there is no evidence to support the
contention that it failed in its duty to afford adequate protection for live and
property.
332. While the Royal Commissioner criticized in his report the mode of
application of certain measures, there is no evidence of any criticisms
directed at the police organization, or the measures taken for the protection
of Europeans. On the contrary, it is clear that from the outbreak of the
insurrection the British authorities took every measure available for its
repression.
333. Despite heavy lossess, the troops in the area of revolt were continually
increased. The communication was difficult, the risings occurred
simultaneously in many districts remote from one another and from any
common centre, and it was impossibile at a few days’ or a few hours’ notice
to afford full protection to the buildings and properties in every isolated and
distant village.
334. It is impossible to judge the system of police and protection of life and
property in force in the savage regions of Africa by the standard of
countries or cities which enjoy the social order, the respect for authority,
and the settled administration of high civilization.
335. A government cannot be held liable as the insurer of lives and property
under the circumstances presented in this case. No alck of promptitude or
courage is alleged against the British troops. On the contrary, the evidence
of eye-witnesses proves that under difficult conditions, they did their duty
with loyalty and daring and upheld the highest traditions of the British
army.
336. It is obvious that the Missionary Society must have been aware of the
difficulties and perils to which it exposes itself in its task of carrying
Christainity to remote and barbarous people. The contempt for difficulty
and peril is one of the noblest sides of their missionary zeal. Indeed, it
explains why they are able to succeed in fields which mere commercial
enterprise cannot be expected to enter.
337. Hence, the Tribunal is of opinion that the claim presented by the US
Government on behalf of the Home Missionary Society has no foundation
in law and must be dismissed.
338. If the Britian’s government in consideration of the service which the Home
Missionary Society has rendered and is still rendering in the peaceful
development of the Protectorate and the civilization of its inhabitants, and
support its activities, can avail itself of any fund from which to repair as far
as possible the losses sustained in the native revolt, it would be an act of
grace which his Tribunal cannot refrain from recommending warmly to the
generosity of that government.
 015 UNITED STATES (CHATTIN) v. MEXICO (Sabaupan)
July 23, 1927 | Van Vollenhoven, C. | State Responsibility
PETITIONER: B.E. Chattin (USA)
RESPONDENTS: United Mexican States
SUMMARY: Chattin, an America national, was an employee of Southern
Pacific Railroad Company of Mexico. He was arrested at Sinoloa on an
embezzlement charge. After many months of preparation and a trial at Mazatlan,
during both of which, it is alleged that Chattin lacked proper information, legal
assistance, assistance of an interpreter, and confrontation with the witnesses. He
was tried and convicted by the District Court of Mazatlan and was sentenced to
two years imprisonment. However, because of disturbances caused by the
Madero revolution, he had been released by the population of Mazatlan which
threw open the doors of the jail in May or June 1911. He then returned to the
United States. It is alleged that the arrest, the trial and the sentence were illegal,
that the treatment in jail was inhuman, and that Chattin was damaged to the
extent of $50,000, which Mexico should pay. Mexico contends that not only has
Chattin, as a fugitive from justice, lost his right to invoke as against Mexico
protection by the United States, but that even the latter is bound by such
forfeiture and may not interpose in his behalf. The issues are whether the arrest,
the trial and the sentence were illegal, which entitles him to damages and
whether Chattin lost his right to invoke as against Mexico protection by the US
because he is a fugitive. For the first issue, the Court ruled in the affirmative and
held the Mexican Government liable for $5,000 on the ground of direct
governmental responsibility. In this case, the irregularities in the judicial
proceedings were proven such as undue delay in judicial proceedings, failure to
inform accused of charge against him, insufficient hearing or trial, and failure to
meet ordinary judicial standards. These findings regarding the treatment of
Chattin amounts to an outrage, to bad faith, to willful neglect of duty, or to
insufficiency of governmental action recognizable by every unbiased man.
Hence, the Mexican Government is liable. With regard to the second issue, the
Commission held that the protection of a fugitive from justice should be left
to the discretion of the claimant government, which in this case, is USA. It is
true that more than once in international law cases statements have been made to
the effect that a fugitive from justice loses his right to invoke and to expect
protection – either by the justice from which he fled (Mexico), or by his own
government (USA) – but this would not seem to imply that his government
as well loses its right to espouse its subject’s claim in its discretion.
DOCTRINE: A citizen of either country having been wrongfully damaged
either by a private individual or by an executive official, the judicial authorities
had failed to take proper steps against the person or persons who caused the loss
or damage. A governmental liability proceeding from such a source of liability is
called “indirect liability.”
In contrast, direct responsibility is incurred on account of acts of the government
itself, or its officials, unconnected with any previous wrongful act of a citizen.
Acts of the judiciary, either entailing direct responsibility or indirect liability (the
latter called denial of justice, proper), are not considered insufficient unless the
wrong committed amounts to an outrage, bad faith, willful neglect of duty, or
insufficiency of action apparent to an unbiased man. Acts of the executive and
legislative branches, on the contrary, share this lot only then, when they
engender a so-called indirect liability in connection with the acts of others.
FACTS:
304. There had arisen a serious apprehension on the part of several railroad
companies operating in Mexico as to whether the full proceeds of passenger
fares were accounted for to these companies.
305. The Southern Pacific Railroad Company of Mexico applied to the
Governor, in his capacity as chief of police of the State, to conduct
investigations made of the existence and extent of said defrauding of their
lines within the territory of his State.
306. B.E. Chattin, an American national, was an employee of Southern Pacific
Railroad Company of Mexico. He was arrested at Mazatlan, Sinoloa on July
9, 1910, on a charge of embezzlement.
307. His case was consolidated with three more American railway conductors.
308. After many months of preparation and a trial at Mazatlan, during both of
which, it is alleged that Chattin lacked proper information, legal assistance,
assistance of an interpreter, and confrontation with the witnesses.
309. He was tried and convicted by the District Court of Mazatlan and was
sentenced to two years imprisonment.
310. However, because of disturbances caused by the Madero revolution, he had
been released by the population of Mazatlan which threw open the doors of
the jail in May or June 1911. He then returned to the United States.
311. It is alleged that the arrest, the trial and the sentence were illegal, that the
treatment in jail was inhuman, and that Chattin was damaged to the extent
of $50,000, which Mexico should pay.
312. Mexico contends that not only has Chattin, as a fugitive from justice, lost
his right to invoke as against Mexico protection by the United States, but
that even the latter is bound by such forfeiture and may not interpose in his
behalf.
313. There are several allegations made by Chattin in this case, such as:
a. Illegal arrest i.e. contrary to Mexican Constitution, he was arrested
merely on an oral order
b. Defective administration of justice
c. Irregularity of court proceedings
d. Conviction on insufficient evidence
e. Mistreatment in prison
314. The Commission addressed each of these allegations one by one.

ISSUE/s:
73. Whether Chattin, as a fugitive from justice, lost his right to invoke as
against Mexico protection by the US and whether US is bound by such
forfeiture of protection and may not interpose in his behalf. NO because the
protection of a fugitive from justice should be left to the discretion of the
claimant government.
74. Whether Chattin is entitled to damages. YES because the court that tried the
case of Chattin violated his rights as an accused and this constitutes a direct
governmental responsibility to which the Mexican Government can be held
liable.
RULING: Claimant is entitled to $5,000 for damages.
RATIO:
Forfeiture of the right to national protection
1. The Commission held that the motive for the alleged limitation place on the
sovereignty of the claimant’s Government would seem to be that a
government by espousing such claim makes itself a party to the improper
acts of its national. International awards, however, establishing either the
duty or the right of the international tribunals to reject claims of fugitives
from justice have not been found.
2. The protection of a fugitive from justice should be left to the discretion of
the claimant government, which in this case, is USA.
3. It is true that more than once in international law cases statements have
been made to the effect that a fugitive from justice loses his right to invoke
and to expect protection – either by the justice from which he fled
(Mexico), or by his own government (USA) – but this would not seem to
imply that his government as well loses its right to espouse its subject’s
claim in its discretion.
Illegal arrest
4. For this point, the US alleged that, since the sentence rendered by the
District Court held that the confession of Ramirez does not constitute in
itself proof against Chattin, the Court confessed that Chattin’s arrest had
been illegal.
5. The Commission held that no such inference can be made from the words
cited. A statement, insufficient as evidence for a conviction, can under
Mexican law (as under the laws of many other countries) furnish a wholly
sufficient basis for an arrest and formal imprisonment.
Defective administration of justice
6. A citizen of either country having been wrongfully damaged either by a
private individual or by an executive official, the judicial authorities had
failed to take proper steps against the person or persons who caused the loss
or damage. A governmental liability proceeding from such a source of
liability is called “indirect liability.” The liability of the government may be
called remote or secondary only when compared with the liability of the
person who committed the wrongful act for that very act.
7. In contrast, direct responsibility is incurred on account of acts of the
government itself, or its officials, unconnected with any previous wrongful
act of a citizen.
a. If such governmental acts are acts of executive authorities, either
in the form of breach of government contracts made with private
foreigners, or in the form of other delinquencies of public
authorities, they are at once recognized as acts involving direct
liability.
b. As soon, however, as mistreatment of foreigners by the courts is
alleged to the effect that damaged sustained by the judiciary itself,
a confusion arises from the fact that authors often lend the term
“denial of justice” as well as to these cases of the second category,
which are different in character from a “denial of justice” of the
first category.
8. The practical importance of a consistent cleavage between these two
categories of governmental acts lies in the following:
a. In cases of direct responsibility, insufficiency of governmental
action entailing liability is not limited to flagrant cases such as
cases of bad faith or willful neglect of duty. So, at least, it is for the
non-judicial branches of government.
b. Acts of the judiciary, either entailing direct responsibility or
indirect liability (the latter called denial of justice, proper), are not
considered insufficient unless the wrong committed amounts to an
outrage, bad faith, willful neglect of duty, or insufficiency of
action apparent to an unbiased man. Acts of the executive and
legislative branches, on the contrary, share this lot only then, when
they engender a so-called indirect liability in connection with the
acts of others.
9. To such acts or inactivities of the executive and legislative branches
engendering indirect liability, the rule applies that a government cannot be
held responsible for them unless the wrong done amounts to an outrage, to
bad faith, to willful neglect of duty, or to an insufficiency of governmental
action so far short of international standards that every reasonable and
impartial man would readily recognize its sufficiency.
10. In one case, the British American arbitral tribunal decided that an act of an
executive officer may constitute an international tort for which his country
is liable, even though he acts under an erroneous impression and without
wrongful intentions.
11. When, therefore, the American Agency in its brief mentions with great
emphasis the existence of a “denial of justice” in the Chattin case, it must be
understood that the term is used in its improper sense.
12. It is true that both categories of government responsibility (direct and
indirect), should be brought to the test of international standards in order to
 determine whether an international wrong exists, and that for both
categories convincing evidence is necessary to fasten liability.
13. As far as acts of the judiciary are involved, the view applies to both
categories that “it is a matter of the greatest political and international
delicacy for one country to disacknowledge the judicial decision of a court
of another country,” and to both categories the rule applies that state
responsibility is limited to judicial acts showing outrage, bad faith, willful
neglect of duty, or manifestly insufficient governmental action.
14. The distinction becomes important whenever acts of the other branches of
government are concerned. The limitation of liability (as it exists for all
judicial acts) does not apply to the category of direct responsibility, but only
to the category of the of indirect or derivative responsibility for acts of the
executive and legislative branches.
Irregularity of court proceedings
15. US alleged that Chattin’s trial was held in an illegal manner. The allegations
were as follows, among others:
a. The Governor of the State, for political reasons used his influence
to have this accused convicted
b. The proceedings were unduly delayed
c. An exorbitant amount of bail was required
d. The accused was not duly informed of the accusations
16. As to illegal efforts made by the Governor to influence the trial and the
sentence, the only evidence consists in hearsay.
17. The record also contains several allegations about lawyers being unwilling
to give or to continue their services because of fear of the Governor.
However, the only statement of this kind proceeding from a lawyer himself
relates to an undisclosed behavior on his part.
18. If really these lawyers have behaved as it would seem from the record, their
boastful pretenses and feeble activities were not a credit to the Mexican
nation. The Government of Mexico evidently cannot be held liable for that.
19. For undue delay of the proceedings, there is convincing evidence in more
than one respect. One proof of such delay is that whereas Chattin appealed
from the decree of his formal imprisonment on July 11, 1910 – an appeal
which would which would seem to be of rather an urgent character – the
corresponding copy of the appeal was not remitted to the appellate court
until September 12, 1910.
20. The allegation of exorbitant bail was true but it is difficult to see how in the
present case this can be held an illegal act on the part of the Judge.
21. The allegation that the accused has not been duly informed regarding the
charge brought against him is proven by the record. It not shown that the
confrontation between Chattin and his accusers amounted to anything like
an effort in the Judge’s part to find out the truth.
22. The whole of the proceedings discloses a most astonishing lack of
seriousness on the part of the Court. There was no showing of any cross-
examination or oral examination.
23. It is not for the Commission to endeavor to reach from the record any
conviction as to the innocence or guilt of Chattin. But even in case they
were guilty, the Commission would render a bad service to the Government
of Mexico if it failed to place the stamp of its disapproval and even
indignation on a criminal procedure so far below the international standards
of civilization as the present one.
24. If the wholesome rule of international law as to respect for the judiciary of
another country shall stand, it would seem of the utmost necessity that
appellate tribunals when, in exceptional cases, discovering proceedings of
this type should take against them the strongest measures possible under
constitution and laws, in order to safeguard their country’s reputation.
Conviction on insufficient evidence
25. In Mexican law, as in that of other countries, an accused cannot be
convicted unless the Judge is convinced of his guilt and has acquired this
view from legal evidence. An international tribunal never can replace the
important first element, that of the Judge’s being convinced of the accused’s
guilt. It can only in extreme cases and with great reserve, look into the
second element – the legality and sufficiency of the evidence.
26. From the record, there is no convincing evidence that the case against
Chatton, scanty and weak though it may have been, was not such as to
warrant a conviction.
27. It has been suggested as most probable that after Chattin’s escape and return
to the United States, no demand for his extradition has been made by the
Mexican Government, and that this might imply a recognition on the side of
Mexico that the sentence had been unjust.
28. Both the disturbed conditions in Mexico since 1911, and the little chance of
finding the United States disposed to extradite one of its citizens by way of
exception, might easily explain the absence of such a demand, without
raising so extravagant a supposition as Mexico’s own recognition of the
injustice of Chattin’s conviction.
Mistreatment in prison
29. The allegation of the claimant regarding mistreatment in the jail refers to
filthy and unsanitary conditions, bad food, and frequent compulsion to
witness the shooting of prisoners.
30. The Commission found that there is no evidence of any complaint of this
kind made either by Chattin and his fellow conductors, or by the American
vice-consul, while the four men were in prison.
31. The only evidence presented was a statement by an ex-employee of the
railroad company saying that these prisoners (Chattin and others) were
“held in strict compliance with the rules of the jail while others are allowed
liberties and privileges.”
32. The Commissioner ruled that the hot climate of Mazatlan would explain in
a natural way many of the discomforts experienced by the prisoners. The
fact that Chattin’s three colleagues were taken to a hospital or allowed to go
 there when they were ill and that one of them had the services of an
American physician in jail might prove that consideration was shown for
the prisoner’s conditions.
33. On the record as it stands, inhuman treatment in jail was not proven.

Conclusion
34. Bringing the proceedings of Mexican authorities against Chattin to the test
of international standards, there can be no doubt of their being highly
insufficient. Inquiring whether there is convincing evidence of this unjust
proceedings, the answer must be in the affirmative.
35. Since this is a case of alleged responsibility of Mexico for injustice
committed by its judiciary, it is necessary to inquire whether the treatment
of Chattin amounts even to an outrage, to bad faith, to willful neglect of
duty, or to insufficiency of governmental action recognizable by every
unbiased man. The Commission answered this in the affirmative.
36. An illegal arrest of Chattin is not proven. Irregularity of court proceedings
is proven with reference to absence of proper investigations, insufficiency
of confrontations, withholding from the accused the opportunity to know all
of the charges brought against him, undue delay of the proceedings, making
the hearings in open court a mere formality, and a continued absence of
seriousness on the part of the Court. Insufficiency of the evidence against
Chattin was not convincingly proven. Intentional severity of the punishment
is proven, without its being shown that the explanation is to be found in
unfairmindedness of the Judge. Mistreatment in prison was not proven.
37. Taking into consideration that this is a case of direct governmental
responsibility and that Chattin, because of his escape, has stayed in jail for
only 11 months instead of for two years, it would seem proper to allow in
behalf of this claimant damages in the sum of $5,000.
 ESTONIA v. LITHUANIA (Saldua)
Feb. 28, 1939 | PCIJ | Continuous Nationality Rule
PETITIONER: Government of Estonia
RESPONDENTS: Government of Lithuania
Panevezys-Saldutiskis Case
SUMMARY: A company founded in Tsarist Russia constructed and operated a
railway line, a branch of which (from Panevezys to Saldutiskis) crossed territory
which, following World War I and the various political upheavals in Russia and the
Baltic States (i.e. independence of the Baltic Republics), became Lithuanian. A
company founded in Estonia in 1923 and purporting to be the successor to said
Russian company, claimed compensation for the part of the railway that was in
Lithuania whose Government had seized it. Thus, the unlawful act complained of
by the Estonian Government is the seizure by the Lithuanian Government in
September 1919 of the Panevezys-Saldutiskis railway.
The Estonian Government espoused this claim, and brought it before the PCIJ
relying on Optional Clause declarations made by the two States. Lithuania raised
two preliminary objections. One was based on the principle of the nationality of
claims (to the effect that any claim made by a State must be a national claim not
only at the time of its presentation, but also at the time when the injury to which it
refers was suffered), and in particular on the fact that the Estonian company did not
exist at the time of the taking. The other was based on the fact that local remedies
had not been exhausted. Issue is WON a claim made by a State must be a
national claim not only at the time of its presentation, but also at the time
when the injury to which it refers was suffered = YES.
The Court held that the rule of international law on which the first Lithuanian
objection is based is that in taking up the case of one of its nationals, by resorting to
diplomatic action or international judicial proceedings on his behalf, a State is in
reality asserting its own right, the right to ensure in the person of its nationals
respect for the rules of international law.
This right is necessarily limited to intervention on behalf of its own nationals
because, in the absence of a special agreement, it is the bond of nationality
between the State and the individual which alone confers upon the State the
right of diplomatic protection, and it is as a part of the function of diplomatic
protection that the right to take up a claim and to ensure respect for the rules of
international law must be envisaged. Where the injury was done to the national
of some other State, no claim to which such injury may give rise falls within
the scope of the diplomatic protection which a State is entitled to afford nor
can it give rise to a claim which that State is entitled to espouse.
In the present case, no grounds exist for holding that the Parties intended to exclude
the application of the rule. The Lithuanian Agent is therefore right in maintaining
that Estonia must prove that at the time when the injury occurred which is
alleged to involve the international responsibility of Lithuania the company
suffering the injury possessed Estonian nationality.
The Judges appeared to take it for granted that the individual concerned must
possess the nationality of the claimant State at the time that the claim was brought.
What it focuses on, and the sole area of contention in the case, is the additional
requirement that the person concerned should also have possessed that nationality
at the time of the injury
DOCTRINE: In the absence of a special agreement, it is the bond of nationality
between the State and the individual which alone confers upon the State the right
of diplomatic protection. Thus, to be able to make another State to be
internationally liable, the claiming State must prove that injured party possessed
the nationality of the claiming State.
FACTS: It’s a long and complicated case.
1. The Government of Estonia filed an application with the court with a
request for a judgment to declare that Lithuania had wrongfully refused to
recognise the rights of an Estonian company with respect to a railway
situated in the former Russian territory – which had now become
Lithuanian, following the independence of the Baltic Republics. It required
that Lithuania make good the prejudice that the company suffered. Estonia
contended that the company in question had become the owner of the
railway, having continued, or succeeded to, a former Russian company. The
history is as follows:
2. In 1892 a company was founded at St. Petersburg under the name of the
"First Company of Secondary Railways in Russia", and its statutes were
approved by Imperial decree on March 26th, 1892.
3. Under § 1 of its statutes, the Company had for its object "the construction
and operation of broad and narrow gauge approach and secondary railways
in general for public and private use, and the construction, operation and
sale of transportable railways". Under § 2, the Company was authorized,
subject to obtaining where necessary the sanction of the competent
administrative body, inter alia, to construct and operate railways of every
kind and type on its own account and at its own risk. The Company might
engage in these activities throughout the whole of the Russian Empire.
Under § 26, the registered offices of the Company were established at St.
Petersburg.
4. By an Imperial decree of November 21st, 1897, the Company was
authorized to construct and operate (under the conditions fixed by a decree
of June 27th, 1894, for another line, the Sventziany to Gloubokoïe line) a
railway between the station at Sventziany, on the St. Petersburg-Warsaw
railway, and the station at Panevezys, on the Libau-Romny railway. The
 Company also possessed other lines in various parts of the Russian Empire,
in particular in the Baltic provinces and in the Ukraine.
5. A general meeting of shareholders appears to have taken place in July 1917.
3 months later, the Bolshevist revolution — the so-called October
revolution — took place. Almost immediately afterwards, December 14th,
1917, a decree of the Central Executive Committee concerning the
nationalization of banks placed in the hands of the Soviet Government the
shares, assets and liabilities of companies existing in Russia. Among these
companies was the "First Company of Secondary Railways"
6. Political events then followed in rapid succession: on February 16th, 1918,
Lithuania proclaimed itself an independent State; on February 24th the
same thing happened in Estonia, and some days later, March 3rd, the Treaty
of Brest-Litovsk between Germany and her allies and Russia confirmed the
abandonment of Russian sovereignty over the former Baltic provinces and
Lithuania which, however, remained in the occupation of German troops.
7. the Bolshevist leaders hurried on measures intended to establish the
communist Soviet regime confiscating private property throughout Russian
territory. On June 28th, 1918, a decree was promulgated declaring "to be the
property of the Russian Socialist Federated Soviet Republic" all industrial
and commercial undertakings in Soviet Russia including "all the
undertakings of private and secondary railway companies, whether in
operation or under construction".
8. Until special orders were issued, undertakings which had been declared the
property of the Soviet Republic were "regarded as leased rent free to the
former owners. The responsible administrators were declared to be in the
service of the Russian Socialist Federated Soviet Republic. The responsible
administrators were declared to be in the service of the Russian Socialist
Federated Soviet Republic.
9. In September 1919, the Lithuanian Government took possession of the
Panevezys-Sventziany railway which was situated in territory which had
become part of the State of Lithuania.
10. Some months later, on February 2nd, 1920, the Russian Socialist Federated
Soviet Republic signed its first treaty with the new Baltic States: the Treaty
of Tartu with Estonia, which was followed on July 12th, 1920, by the
Treaty concluded at Moscow with Lithuania and, on August 11th, 1920, by
the Treaty with Latvia, also signed at Moscow.
11. In the present case, the Treaty of Tartu of February 2nd, 1920, concluded
between the Soviet Republic and Estonia merits special attention for the
reason that, unlike the two other treaties which followed it, it contains
detailed provisions as to the fate of private property situated in Estonian
territory, particularly as to the property of joint-stock companies.
12. Under Article XI of this Treaty, of which the meaning and perhaps even the
translation are disputed between the Parties, Russia renounces "all the rights
of the Russian Treasury to the movable and immovable property of
individuals which previously did not belong to her, in so far as such
property may be situated in Estonian territory". All such property became
"the sole property of Estonia" and was freed from all obligations as from
December 14th, 1917, which, as has been seen, was the date of the decree
nationalizing the banks.
13. In October 1920, some kilometres of the Panevezys-Sventziany railway line
situated between the latter station and Saldutiskis ceased to be under
Lithuanian sovereignty and passed subsequently into that of Poland.
14. On August 4th, 1923, a law was promulgated in Estonia declaring that, "in
accordance with § 19 of the concession of the 'First Company of Secondary
Railways in Russia', all railways of this Company in the territory of the
Estonian Republic shall be bought out and become the property of the
Treasury as from October 1st, 1923". The concession referred to is that
granted by the Czar in 1897, and § 19 concerns the Imperial Government's
right of redemption.
15. As stated in the Estonian Memorial, the "First Company of Secondary
Railways in Russia" was thus transformed "into an Estonian company
having its registered offices in Estonia under the name of the Esimene
Juurdeveo Raudteede Selts Venemaal— a translation into Estonian of the
name of the Russian company.
ISSUE/S:
1. WON a claim made by a State must be a national claim not only at the time
of its presentation, but also at the time when the injury to which it refers
was suffered = YES. In the absence of a special agreement, it is the bond of
nationality between the State and the individual which alone confers upon
the State the right of diplomatic protection.
HELD: For the above reasons and after pondering deeply the various aspects of the
question, I have come to the conclusion that in this case there were reasons for
allowing a departure from the general rule for the exhaustion of local remedies. I
would emphasize that such a departure does not in any way invalidate this
recognized rule of international law.
RATIO:
1. The Lithuanian Government contends that the Company was only founded
in 1923 and that consequently it then received Estonian nationality. On the
other hand, the Estonian Government contends that the Estonian Company
is none other than the First Russian Company, founded in 1892, the
nationality and statutes of which were altered following the world war and
after 1919.
2. No matter which of the two lines of argument is correct, the fact remains
that at the time when the injury was suffered, the Company did not possess
Estonian nationality and that, consequently, the rule of international law
which the Lithuanian Government adduces is applicable, at all events if it
exists in the absolute form attributed to it by that Government.
3. But it is precisely in regard to this point that there appears to be ground for
serious doubt; for the Lithuanian Agent has not succeeded in establishing
 the existence of the rule in the absolute form attributed to it according to the is the additional requirement that the person concerned should also have
Lithuanian argument. possessed that nationality at the time of the injury.
4. The legal life of the new State in all its aspects proceeds in succession to the
legal life of the old State. Thus in all matters where the Government of the
latter had jurisdiction, its place is now' taken by the Government of the new
State. This holds good as regards diplomatic protection.
5. Such a "succession" is an absolutely characteristic and even essential
feature of the law of State succession. The successor State is continually
exercising rights which previously belonged exclusively to the old State,
and the same holds good as regards obligations. Accordingly it would be
quite normal that in this case the successor State should have protected both
diplomatically and before the Court a company the diplomatic protection of
which formerly fell to Russia alone.
6. Thus, in the opinion of the Court, the rule of international law on which the
first Lithuanian objection is based is that in taking up the case of one of its
nationals, by resorting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting its own right, the
right to ensure in the person of its nationals respect for the rules of
international law.
7. This right is necessarily limited to intervention on behalf of its own
nationals because, in the absence of a special agreement, it is the bond of
nationality between the State and the individual which alone confers upon
the State the right of diplomatic protection, and it is as a part of the function
of diplomatic protection that the right to take up a claim and to ensure
respect for the rules of international law must be envisaged.
8. Where the injury was done to the national of some other State, no claim to
which such injury may give rise falls within the scope of the diplomatic
protection which a State is entitled to afford nor can it give rise to a claim
which that State is entitled to espouse. The Estonian Agent both in the
written pleadings and in the oral arguments has endeavoured to discredit
this rule of international law, if not to deny its existence.
9. Estonian Agent cited a certain number of precedents, but when these
precedents are examined it will be seen that they are cases where the
governments concerned had agreed to waive the strict application of the
rule, cases where the two governments had agreed to establish an
international tribunal with jurisdiction to adjudicate on claims even if this
condition as to nationality was not fulfilled.
10. In the present case, no grounds exist for holding that the Parties intended to
exclude the application of the rule. The Lithuanian Agent is therefore right
in maintaining that Estonia must prove that at the time when the injury
occurred which is alleged to involve the international responsibility of
Lithuania the company suffering the injury possessed Estonian nationality.
11. The Judges appeared to take it for granted that the individual concerned
must possess the nationality of the claimant State at the time that the claim
was brought. What it focuses on, and the sole area of contention in the case,
 017 NOTTEBOHM CASE; Liechtenstein v. Guatemala (Santos)
April 6, 1955 | ICJ | State Responsibility – Real and Effective Nationality
PETITIONER: Principality of Liechtenstein
RESPONDENTS: Republic of Guatemala
SUMMARY: Nottebohm was born a German who has settled in Guatemala for 34y.
After WWII outbreak, he applied for citizenship by naturalization in Liechtenstein
through a waiver of the residence requirement, paying his naturalization fees, and
giving a deposit for payment of taxes. He subsequently attempted to Guatemala, and
he now complains of Guatemala’s refusal to admit him. Before declaring war on
Germany, US blacklisted Nottebohm and froze his US assets. Guatemala entered
World War II against Germany in 1941. Guatemala arrested Nottebohm as a
dangerous enemy alien and deported him to the US. He returned to Liechtenstein,
after Guatemala refused his application for readmission. Guatemala had confiscated
his property on the grounds that he was an enemy alien. Liechtenstein brought this
action against Guatemala asking the Court to declare that Guatemala in arresting,
detaining, expelling and refusing to readmit Mr. Nottebohm and in seizing and
retaining his property without compensation acted in breach of their obligations
under international law and consequently in a manner requiring the payment of
reparation. The issue in this case is WoN Guatemala acted in breach of their
obligations under international law NO because the nationality conferred on
Nottebohm by Liechtenstein bestows upon Liechtenstein no sufficient title to the
exercise of protection in respect of Nottebohm since the only links to be discovered
between the Liechtenstein and Nottebohm are the short sojourns; without settled
abode, prolonged residence nor intention of settling.
DOCTRINE: In cases of dual nationality, with regard to the exercise of protection,
what is preferred is the real and effective nationality, that which accorded with the
facts, that based on stronger factual ties between the person concerned and one of the
States whose nationality is involved (evidenced by habitual residence of the
individual, his family ties, his participation in public life, attachment shown by him
for a given country and inculcated in his children, etc – which is absent between the
individual Nottebohm and Principality of Liechtenstein)
FACTS:
1. Nottebohm was a German national by birth.
2. At the age of 24, he moved to Guatemala, where he maintained a residence
and a business enterprise.
3. He made business trips to Germany.
4. 1931-1939, he visited a brother in Liechtenstein several times.
5. His relatives and friends lived in Germany or Guatemala.
6. After WWII outbreak, he applied for citizenship by naturalization in
Liechtenstein through a waiver of the residence requirement, paying his
naturalization fees, and giving a deposit for payment of taxes
7. He’s granted citizenship and received a Liechtenstein passport.
8. He received a visa from the Guatemalan Consul in Zurich.
9. Nottebohm returned to Guatemala.
10. Before declaring war on Germany, US blacklisted Nottebohm and froze his
US assets.
11. Guatemala entered World War II against Germany and arrested Nottebohm
as a dangerous enemy alien and deported him to the US, where he was
interned until 1946.
12. He returned to Liechtenstein after Guatemala refused his application for
readmission.
13. Guatemala confiscated his property on the grounds that he’s an enemy
alien.
14. Liechtenstein brought this action against Guatemala, asking the Court to
declare that Guatemala in arresting, detaining, expelling and refusing to
readmit Mr. Nottebohm and in seizing and retaining his property without
compensation acted in breach of their obligations under international
law and consequently in a manner requiring the payment of reparation.
15. Guatemala, referring to a well - established principle of international law,
that ‘it is the bond of nationality between the State and the individual
which alone confers upon the State the right of diplomatic protection’,
asked the Court to declare the claim inadmissible on grounds of the
nationality of the claimant.
16. Liechtenstein considers itself to be acting in conformity with this principle
and contends that Nottebohm is its national by virtue of the naturalization.
17. Guatemala requests the Court to declare that Liechtenstein’s claim
inadmissible and sets forth a number of grounds relating to the nationality
of Liechtenstein granted to Nottebohm by naturalization.
18. Guatemala in Zurich entered a visa in the Liechtenstein passport of Mr.
Nottebohm for his return to Guatemala; that on January 29,1940 Nottebohm
informed the Ministry of External Affairs in Guatemala that he adopted the
nationality of Liechtenstein and therefore requested that the entry relating to
him in the Register of Aliens should be altered accordingly, a request which
was granted on January 31; that on February 9, 1940 a similar amendment
was made to his identity document, and lastly that a certificate to the same
effect was issued to him by the civil registry of Guatemala on July 1,1940.
19. His actual connections with Liechtenstein were extremely questionable. No:
a. settled abode,
b. prolonged residence in that country at the time of his application
for naturalization
c. intention of settling there
20. The application indicates that he’s paying a visit there and confirms the
transient character of this visit by its request that the naturalization
proceedings should be initiated and concluded without delay.
21. He returned to Guatemala very shortly after his naturalization and showed
every intention of remaining there. If Nottebohm went to Liechtenstein in
1946, this was because of the refusal of Guatemala to admit him.
22. Liechtenstein’s argument:
 a. Guatemala formerly recognized the naturalization which it now
challenges and cannot therefore be heard to put forward a
contention which is inconsistent with its former attitude.
b. The Consul-General of Acts of the Guatemalan authorities
proceeded on the basis of the statements made to them by the
person concerned.
ISSUE: WoN Guatemala in arresting, detaining, expelling and refusing to readmit
Mr. Nottebohm and in seizing and retaining his property without compensation acted
in breach of their obligations under international law and consequently in a manner
requiring the payment of reparation – NO because the nationality conferred on
Nottebohm by Liechtenstein bestows upon Liechtenstein no sufficient title to the
exercise of protection in respect of Nottebohm since the only links to be discovered
between the Liechtenstein and Nottebohm are the short sojourns; without settled
abode, prolonged residence nor intention of settling there.
RULING: The Court, by eleven votes to three, holds that the claim submitted by the
Government of the Principality of Liechtenstein is inadmissible.
RATIO:
1. When Nottebohm presented himself before the Guatemalan authorities,
Nottebohm had before them a private individual. There was no relationship
between governments. Neither did Guatemala then recognize that the
naturalization conferred upon Nottebohm gave Liechtenstein any title to the
exercise of protection.
2. A letter of the Swiss consul to the Minister of External Affairs, reference is
made to the entry on the Black Lists of “Frederick Nottebohm, a national of
Liechtenstein.”
3. Guatemala expressly stated that it could not “recognise that Mr.
Nottebohm, a German subject habitually resident in Guatemala, has
acquired the nationality of Liechtenstein without changing his habitual
residence”, which is an express denial by Guatemala of Nottebohm’s
Liechtenstein nationality.
4. There’s no proof that before the institution of proceedings, Guatemala had
recognized Liechtenstein’s title to exercise protection in favor of
Nottebohm and that it is thus precluded from denying such a title.
5. It is for Liechtenstein, as it is for every sovereign State, to settle by its own
legislation the rules relating to the acquisition of its nationality, and to
confer that nationality by naturalization granted by its own organs in
accordance with that legislation.
6. Nationality has its most immediate, its most far - reaching and, for most
people, its only effects within the legal system of the State conferring it.
7. Nationality serves to determine that the person upon whom it is conferred
enjoys the rights and is bound by the obligations which the law of the
State in question grants to or imposes on its nationals. This is implied in
the wider concept that nationality is within the domestic jurisdiction of the
State.
8. To exercise protection, to apply to the Court is to place oneself on the plane
of international law which determines whether a State is entitled to exercise
protection.
NATURALIZATION
9. Naturalization of Nottebohm was an act performed by Liechtenstein in the
exercise of its domestic jurisdiction. The question to be decided is whether
that act has the international effect here under consideration. International
practice provides many examples of acts performed by States in the
exercise of their domestic jurisdiction which do not necessarily or
automatically have international effect, which are not necessarily and
automatically binding on other States or which are binding on them only
subject to certain conditions.
10. When one State has conferred its nationality upon an individual and another
State has conferred its own nationality on the same person, it may occur that
each of these States, considering itself to have acted in the exercise of its
domestic jurisdiction, adheres to its own view and bases itself thereon in
so far as its own actions are concerned.
11. In so doing, each State remains within the limits of its domestic
jurisdiction.
12. This situation may arise on the international plane and fall to be considered
by international arbitrators or by the courts of a third State.
13. If arbitrators or the courts of such a State should confine themselves to the
view that nationality is exclusively within the domestic jurisdiction of the
State, it would be necessary for them to find that they were confronted by 2
contradictory assertions made by two sovereign States, assertions which
they would consequently have to regard as of equal weight, which would
oblige them to allow the contradiction to subsist and thus fail to resolve the
conflict submitted to them.
NATIONALITY
14. International arbitrators have decided numerous cases of dual nationality,
where the question arose with regard to the exercise of protection. They
have given their preference to the real and effective nationality, that which
accorded with the facts, that based on stronger factual ties between the
person concerned and one of the States whose nationality is involved.
15. Different factors are taken into consideration, and their importance will vary
from one case to the next: the habitual residence of the individual
concerned is an important factor, but there are other factors such as the
center of his interests, his family ties, his participation in public life,
attachment shown by him for a given country and inculcated in his
children, etc.
16. Courts of 3rd States, when they have before them an individual whom 2
other States hold to be their national, seek to resolve the conflict by having
recourse to international criteria and their prevailing tendency is to prefer
 the real and effective nationality (same with writings of publicists and in
practice)
17. National laws reflect this tendency when, inter alia, they make
naturalization dependent on conditions indicating the existence of a
link, which may vary in their purpose or in their nature but which are
essentially concerned with this idea.
18. Liechtenstein Law of January 4th, 1934: The practice of certain States
which refrain from exercising protection in favor of a naturalized person
when he has in fact, by his prolonged absence, severed his links with what
is no longer for him anything but his nominal country, manifests the view of
these States that, in order to be capable of being invoked against another
State, nationality must correspond with the factual situation.
19. A similar view is manifested in the relevant provisions of the bilateral
nationality treaties concluded between the USA and other States since 1868,
such as those sometimes referred to as the Bancroft Treaties, and in the Pan-
American Convention, signed at Rio de Janeiro on August 13th, 1906, on
the status of naturalized citizens who resume residence in their country of
origin.
20. The character thus recognized on the international level as pertaining to
nationality is in no way inconsistent with the fact that international law
leaves it to each State to lay down the rules governing the grant of its
own nationality.
21. The reason for this is that the diversity of demographic conditions has
made it impossible for any general agreement to be reached on the
rules relating to nationality, although the latter by its very nature
affects international relations.
22. The best way of making such rules accord with the varying demographic
conditions in different countries is to leave the fixing of such rules to the
competence of each State.
23. A State cannot claim that the rules it has thus laid down are entitled to
recognition by another State unless it has acted in conformity with this
general aim of making the legal bond of nationality accord with the
individual’s genuine connection with the State which assumes the defense
of its citizens by means of protection as against other States.
24. The requirement that such a concordance must exist is to be found in the
studies carried on in the course of the last 30y upon the initiative and under
the auspices of the League of Nations and the UN.
25. It explains the provision which the Conference for the Codification of
International Law, held at The Hague in 1930, inserted in Art. I of the
Convention relating to the Conflict of Nationality Laws: The law enacted
by a State for the purpose of determining who are its nationals “shall
be recognized by other States in so far as it is consistent with
international custom, and the principles of law generally recognized
with regard to nationality.”
26. Art. 5 of the Convention refers to criteria of the individual’s genuine
connections for the purpose of resolving questions of dual nationality
which arise in 3rd States.
27. According to the practice of States, to arbitral and judicial decisions and to
the opinions of writers, nationality is a legal bond having as its basis a
social fact of attachment, a genuine connection of existence, interests
and sentiments, together with the existence of reciprocal rights and
duties.
28. It may be said to constitute the juridical expression of the fact that the
individual upon whom it is conferred, either directly by the law or as the
result of an act of the authorities, is in fact more closely connected with the
population of the State conferring nationality than with that of any other
State. Conferred by a State, it only entitles that State to exercise protection
vis-a-vis another State, if it constitutes a translation into juridical terms of
the individual’s connection with the State which has made him its national.
29. Diplomatic protection and protection by means of international judicial
proceedings constitute measures for the defense of the rights of the State.
As the PCIJ has said and repeated, “by taking up the case of one of its
subjects and by resorting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting its own rights — its
right to ensure in the person of its subjects respect for the rules of
international law.”
30. Since this is the character which nationality must present when it is invoked
to furnish the State which has granted it with a title to the exercise of
protection and to the institution of international judicial proceedings, the
Court must ascertain whether the nationality granted to Nottebohm by
means of naturalization is of this character or, in other words, whether the
factual connection between Nottebohm and Liechtenstein in the period
preceding, contemporaneous with and following his naturalization appears
to be sufficiently close, so preponderant in relation to any connection which
may have existed between him and any other State, that it is possible to
regard the nationality conferred upon him as real and effective, as the exact
juridical expression of a social fact of a connection which existed
previously or came into existence thereafter.
31. Naturalization, not a matter to be taken lightly, involves breaking of a
bond of allegiance and establishment of a new bond of allegiance. It may
have far - reaching consequences and involve profound changes in the
destiny of the individual who obtains it.
32. It concerns him personally, and to consider it only from the point of view
of its repercussions with regard to his property would be to misunderstand
its profound significance. In order to appraise its international effect, it is
impossible to disregard the circumstances in which it was conferred, the
serious character which attaches to it, the real and effective, and not merely
the verbal preference of the individual seeking it for the country which
grants it to him.
33. At the time of his naturalization, does Nottebohm appear to have been more
closely attached by his tradition, his establishment, his interests, his
activities, his family ties, his intentions for the near future to Liechtenstein
than of any other State? No.
34. Guatemala is under no obligation to recognize a nationality granted in
such circumstances.
35. Liechtenstein consequently is not entitled to extend its protection to
Nottebohm vis-a-vis Guatemala and its claim must, for this reason, be held
to be inadmissible.
36. No indication is given of the grounds warranting the waiver of the condition
of residence, required by the 1934 Nationality Law, which waiver was
implicitly granted to him.
37. There is no allegation of any economic interests or of any activities
exercised or to be exercised in Liechtenstein, and no manifestation of any
intention whatsoever to transfer all or some of his interests and business
activities to Liechtenstein.
38. The only links to be discovered between the Principality and Nottebohm are
the short sojourns already referred to and the presence in Vaduz of one of
his brothers: but his brother’s presence is referred to in his application
for naturalization only as a reference to his good conduct. Other
members of his family have even asserted Nottebohm’s desire to spend his
old age in Guatemala.
39. These facts clearly establish:
a. Absence of attachment between Nottebohm and Liechtenstein
b. Existence of a long - standing and close connection between him
and Guatemala, a link which his naturalization in no way
weakened.
40. Naturalization was not based on any real prior connection with
Liechtenstein, nor did it alter the manner of life of the person upon
whom it was conferred in exceptional circumstances of speed and
accommodation. In both respects, it was lacking in the genuineness
requisite in an act of such importance, if it is to be entitled to be respected
by a State in the position of Guatemala. It was granted without regard to the
concept of nationality adopted in international relations.
41. Naturalization was asked for not so much for the purpose of obtaining a
legal recognition of Nottebohm’s membership in fact in the population of
Liechtenstein, as it was to enable him to substitute for his status as a
national of a belligerent State that of a national of a neutral State, with the
sole aim of thus coming within the protection of Liechtenstein but not
of becoming wedded to its traditions, its interests, its way of life or of
assuming the obligations — other than fiscal obligations — and exercising
the rights pertaining to the status thus acquired.
42. The Court is not therefore called upon to deal with the other pleas in bar put
forward by Guatemala or the conclusions of the Parties other than those on
which it is adjudicating in accordance with the reasons indicated above.
 018 Belgium v. Spain (Sarmiento)
Feb 5, 1970 |Court of International Justice| State Responsibility
PETITIONER: Belgium
RESPONDENTS: Spain
SUMMARY:
Barcelona Traction Light and Power Company Limited was incorporated in
Canada. Its subsidiary companies supply electric power in Spain. According to
the Belgian Government some years after the first world war Barcelona Traction’s
share capital came to be very largely held by Belgian nationals but this contention
was denied by the Spanish Government. Barcelona Traction issued several series
of bonds, principally in sterling. The sterling bonds were serviced out of transfers
to Barcelona Traction effected by the subsidiary companies operating in Spain.
Then the the servicing of the Barcelona traction bonds was suspended on account
of the Spanish civil war. After that war the Spanish exchange control authorities
refused to authorize the transfer of the foreign currency necessary for the
resumption of the servicing of the sterling bonds. The Belgians complained. Then
the Barcelona Traction became bankrupt. Proceedings for damages in the court of
Spain commenced. The issue is whether or not Belgum has the jus standi to
protect the rights of Belgian nationals affected, in a foreign court. The court ruled
that The Court found that Belgium lacked jus standi to exercise diplomatic
protection of shareholders in a Canadian company with respect to measures taken
against that company in Spain. However, it derived from municipal law a limited
principle permitting the piercing of the corporate veil in cases of misuse, fraud,
malfeasance or evasion of legal obligations.
It is up to the protecting State of the injured national whether and how far to make
it available: ‘The Court would here observe that, within the limits prescribed by
international law, a State may exercise diplomatic protection by whatever means
and to whatever extent it thinks fit, for it is its own right that the State is asserting
Should the natural or legal person on whose behalf it is acting consider that their
rights are not adequately protected, they have no remedy in international law. All
they can do is resort to national law, if means are available, with a view to
furthering their cause or obtaining redress. The municipal legislator may lay upon
the State an obligation to protect its citizens abroad, and may also confer upon the
national a right to demand the performance of that obligation, and clothe the right
with corresponding sanctions. However, all these questions remain within the
province of municipal law and do not affect the position internationally.
DOCTRINE: The municipal legislator may lay upon the State an obligation to
protect its citizens abroad, and may also confer upon the national a right to
demand the performance of that obligation, and clothe the right with
corresponding sanctions. However, all these questions remain within the province
of municipal law and do not affect the position internationally.
FACTS:
1. The Barcelona Traction, Light and Power Company, Limited, was
incorporated in 1911 in Toronto (Canada), where it has its head office.
a. For the purpose of creating and developing an electric power
production and distribution system in Catalonia (Spain) it formed a
number of subsidiary companies, of which some had their
registered offices in Canada and the others in Spain.
2. In 1936 the subsidiary companies supplied the major part of Catalonia’s
electricity requirements. According to the Belgian Government some years
after the first world war Barcelona Traction’s share capital came to be very
largely held by Belgian nationals but this contention was denied by the
Spanish Government.
3. Barcelona Traction issued several series of bonds, principally in sterling.
The sterling bonds were serviced out of transfers to Barcelona Traction
effected by the subsidiary companies operating in Spain.
4. In 1936 the servicing of the Barcelona traction bonds was suspended on
account of the Spanish civil war.
a. After that war the Spanish exchange control authorities refused to
authorize the transfer of the foreign currency necessary for the
resumption of the servicing of the sterling bonds.
b. Subsequently, when the Belgian Government complained of this,
the Spanish Government stated that the transfers could not be
authorized unless it ,were shown that the foreign currency was to
be used to repay debts arising from the genuine importation of
foreign capital into Spain, and that this had not been established
5. In 1948 three Spanish holders of recently acquired Barcelona Traction
sterling bonds petitioned that court of Reus (Province of Tarragona) for a
declaration adjudging the company bankrupt, on account of failure to pay
the interest on the bonds.
6. On 12 February 1948 a judgment was given declaring the company
bankrupt and ordering the seizure of the assets of Barcelona Traction and of
two of its subsidiary companies.
7. Pursuant to this judgment the principal management personnel of the two
companies were dismissed and Spanish directors appointed.
a. Shortly afterwards, these measures were extended to the other
subsidiary companies.
b. New shares of the subsidiary companies were created, which were
sold by public auction in 1952 to a newly-formed company,
 Fuerzas Electricas ~de Cataluina, S.A. (Fecsa), which thereupon
acquired complete control of the undertaking in Spain.
8. Proceedings for damages were brought without success in the Spanish
courts by various companies or persons
a. According to the Spanish Government, 2,736 orders were made in
the case and 494 judgments given by lower and 37 by higher courts
before it was submitted to the International Court of Justice.
b. The Court found that in 1948 Barcelona Traction, which had not
received a judicial notice of the bankruptcy proceedings, and was
not represented before the Reus court, took no proceedings in the
Spanish courts until 18 June and thus did not enter a plea of
opposition against the bankruptcy judgment within the time-limit
of eight days from the date of publication of the judgment laid
down in Spanish legislation.
c. The Belgian Government contends, however, that the notification
and publication did not comply with the relevant legal
requirements and that the eight-day time-limit never began to run.
Representations were made to the Spanish Government by the
British, Canadian, United States and Belgian Governments as from
19481 or 1949. The interposition of the Canadian Government
ceased entirely in 1955.
PRELIMINARY OBJECTIONS (FIRST PHASE OF THE JUDGMENT)
1. The Belgian Government filed a first Application with the Court against the
Spanish Government in 1958.
a. In 1961 it gave notice of discontinuance of the proceedings, with a
view to negotiations between the representatives of the private
interests concerned, and the case was removed from the Court’s
General List.
b. The negotiations having failed, the Belgian Government on 19
June 1962 submitted to the Court a new Application.
2. In 1963 the Spanish Government raised four preliminary objections to this
Application. In its first Preliminary Objection, which was rejected, the
Respondent contended that this discontinuance precluded the Applicant
from bringing the present proceedings.
3. The secondary preliminary objection which was also rejected was regarding
the lapse of Article 17(4) of the treaty of 1927 on dissolution of the
permanent court to which the Article referred thus questioning the
jurisdiction of the ICJ over the case.
4. The third preliminary objection which was joined to the merits of the
Spanish Government, was to the effect that the Belgian Government lacked
capacity to submit any claim in respect of wrongs done to a Canadian
company, even if the shareholders were Belgian.
5. The fourth preliminary objection, which was also joined to the merits, was
to the effect that local remedies available in Spain had not been exhausted.
ISSUE: Whether or not Belgium has the legal standing to protect its citizen
in a foreign court—NO. It is up to domestic laws to determine whether legal
remedies can be afforded to foreign nationals.
RULING:
Accordingly, the Court rejected the Belgian Government’s claim by 15
votes to 1, 12 votes of the majority being based on the reasons set out above.
RATIO:
1. The Court observed that when a State admitted into its territory foreign
investments or foreign nationals it was bound to extend to them the
protection of the law and assumed obligations concerning the treatment to
be afforded them. But such obligations were not absolute. In order to bring
a claim in respect of the breach of such an obligation, a State must first
establish its right to do so.
2. In the field of diplomatic protection, international law was in continuous
evolution and was called upon to recognize institutions of municipal law.
a. In municipal law, the concept of the company was founded on a
firm distinction between the rights of the company and those of the
shareholder.
b. Only the company, which was endowed with legal personality,
could take action in respect of matters that were of a corporate
character.
c. A wrong done to the company frequently caused prejudice to its
shareholders, but this did not imply that both were entitled to claim
compensation.
d. Whenever a shareholder’s interests were harmed by an act done to
the company, it was to the latter that he had to look to institute
appropriate action. An act infringing only the company’s rights did
not involve responsibility towards the shareholders, even if their
interests were affected.
3. International law had to refer to those rules generally accepted by municipal
legal systems. An injury to the shareholder’s interests resulting from an
injury to the rights of the company was insufficient to found a claim.
 Diplomatic Protection only exercised by nation state of company:
4. Where it was a question of an unlawful act committed against a company
representing foreign capital, the general rule of international law authorized
the national State of the company alone to exercise diplomatic protection
for the purpose of seeking redress. No rule of international law expressly
conferred such a right on the shareholder’s national State.
Exceptions to the general principles:
5. The Court considered whether there might not be, in the present case,
special circumstances for which the general rule might not take effect.
6. Two situations needed to be studied
a. the case of the company having ceased to exist, and
b. the case of the protecting State of the company lacking capacity to
take action
7. As regards the first of these possibilities, the Court observed that whilst
Barcelona Traction had lost all its assets in Spain and been placed in
receivership in Canada, it could not be contended that the corporate entity
of the company had ceased to exist or that it had lost its capacity to take
corporate action.
a. So far as the second possibility was concerned, it was not disputed
that the company had been incorporated in Canada and had its
registered office in that country, and its Canadian nationality had
received general recognition.
b. The Canadian Government had exercised the protection of
Barcelona Traction for a number of years. If at a certain point the
Canadian Government ceased to act on behalf of Barcelona
Traction, it nonetheless retained its capacity to do so, which the
Spanish Government had not questioned.
c. Whatever the reasons for the Canadian Government’s change of
attitude, that fact could not constitute a justification for the
exercise of diplomatic protection by another government.
8. It had been maintained that a State could make a claim when investments by
its nationals abroad, such investments being part of a State’s national
economic resources, were prejudicially affected in violation of the right of
the State itself to have its nationals enjoy a certain treatment. But, in the
present state of affairs, such a right could only result from a treaty or special
agreement.
a. And no treaty or special agreement of such a kind was in force
between Belgium and Spain.
9. If we consider reasons of equity, a State should be able to take up the
protection of its nationals, shareholders in a company which had been the
victim of a violation of international law.
a. The Court considered that the adoption of the theory of diplomatic
protection of shareholders as such would open the door to
competing claims on the part of different States, which could
create an atmosphere of insecurity in international economic
relations.
b. In the particular circumstances of the present case, where the
company’s national State was able to act, the Court was not of the
opinion that jus standi was conferred on the Belgian Government
by considerations of equity.
10. The Court took cognizance of the great amount of documentary and other
evidence submitted by the Parties and fully appreciated the importance of
the legal problems raised by the allegation which was at the root of the
Belgian claim and which concerned denials of justice allegedly committed
by organs of the Spanish State.
a. However, the possession by the Belgian Government of a right of
protection was a prerequisite for the examination of such problems.
b. Since no jus standi before the Court had been established, it was
not for the Court to pronounce upon any other aspect of the case.
c. Accordingly, the Court rejected the Belgian Government’s claim
by 15 votes to 1, 12 votes of the majority being based on the
reasons set out above.
11. The court’s ruling of dismissal of the case adequately demonstrates the
differences between states and individuals and who is considered sovereign
in the international realm.
a. The court ruled in favour of Spain since Belgium had no
jurisdiction to do so and the shareholders seeking compensation
was not given diplomatic immunity.
b. However, if the shareholders were to seek aid from Canada in
which the company is headquartered and given correct identity
with, a law suit could occur.
c. Thus an individual cannot bring a claim against a state since it is
not given that authority.
d. This case will be viewed as an excellent reference for cases dealing
with organizations and sovereign immunity claims and how to
correctly deal with them.
 019 GUINEA v. CONGO (DIALLO CASE) (SEE)
May 24, 2007 | ICJ | State responsibility
PETITIONER: Guinea
RESPONDENTS: Democratic Republic of Congo
SUMMARY: Ahmadou Sadio Diallo is a Guinean citizen doing business in the
Democratic Republic of Congo via 2 companies, Africom-Zaire and
Africontainers-Zaire. The 2 companies’ relationship with their business partners
started to deteriorate and so the 2 companies, through Diallo, initiated various
steps, including judicial ones, to revocer the debts. Africom-Zaire claims
payment from DRC of a debt, resulting from default in payment for deliveries of
listing paper to the Zairean State, which DRC acknowledged. Africom-Zaire also
seeks to recover overpayments of rent with Plantation Lever au Zaire (PLZ).
Africontainers-Zaire is also in dispute with Zaire Fina, Zaire Shell and Zaire
Mobil Oil, as well as with the Office National des Transports (ONATRA) and
the Generale des Carrieres et des Mines (Gecamines) concerning alleged
violations of contractual exclusivity clauses and the lay-up, improper use or
destruction or loss of containers. The Prime Minister of Zaire issued an
expulsion Order against Mr. Diallo for his “presence and conduct have breached
public order in Zaire, especially in the economic, financial and monetary areas,
and continue to do so”. He was then deported and returned to Guinea. His
removal was formalized and served upon him in the shape of a notice of refusal
of entry on account of illegal residence. Guinea maintained that Mr. Diallo’s
arrest, detention and expulsion were the culmination of a DRC policy to prevent
him from recovering the debts owed to his companies. The DRC rejected that
allegation and argued that his expulsion was justified by the fact that his
presence and conduct breached public order in Zaire. Guinea seeks to exercise its
diplomatic protection on behalf of Mr. Diallo for the violation alleged to have
occurred at the time of his arrest, detention and expulsion, or to have derived
therefrom, of three categories of rights: (a) his individual personal rights, (b) his
direct rights as shareholder in Africom-Zaire and Africontainers-Zaire, and (c)
the rights of those companies, by “substitution”.
The issues are:
WoN Guinea has met the requirements for the exercise of diplomatic protection,
that is to say whether Mr. Diallo is a national of Guinea and whether he has
exhausted the local remedies available in the DRC.—NO, he has not exhausted
loca remedies but this is justified since the expulsion was done via “refusal of
entry” which is not appealable.
WoN the application is admissible in so far as it concerns protection of Mr.
Diallo’s direct rights as a shareholder in the 2 companies.—YES, Guinea does
have standing in this case in so far as its action involves a person of its
nationality, Mr. Diallo, and is directed against the allegedly unlawful acts of the
DRC which are said to have infringed his rights, particularly his direct rights as
shareholder.
WoN the application is admissible in so far as it concerns the exercise of
diplomatic protection with respect to Mr. Diallo “by substitution for” the 2
companies.—NO because the general rule applies in this case. The Court
observes that it appears natural that Africom-Zaire and Africontainers-Zaire
were created in Zaire and entered in the Trade Register of the city of Kinshasa
by Mr. Diallo, who had settled in the country in 1964. The Court thus concludes
that the two companies were not incorporated in such a way that they would fall
within the scope of protection by substitution.
DOCTRINE: Under customary international law, diplomatic protection
“consists of the invocation by a State, through diplomatic action or other means
of peaceful settlement, of the responsibility of another State for an injury caused
by an internationally wrongful act of that State to a natural or legal person that is
a national of the former State with a view to the implementation of such
responsibility”
FACTS:
1. Mr. Ahmadou Sadio Diallo, a Guinean citizen, settled in the DRC (called
“Congo” between 1960 and 1971 and “Zaire” between 1971 and 1997) in
1964.
2. There, in 1974, he founded an import-export company, Africom-Zaire, a
private limited liability company, hereinafter “SPRL”, incorporated under
Zairean law and entered in the Trade Register of the city of Kinshasa, and
he became its manager. In 1979 Mr. Diallo expanded his activities, taking
part, as manager of Africom-Zaire and with backing from two private
partners, in the founding of another Zairean SPRL, Africontainers-Zaire,
specializing in the containerized transport of goods.
3. The capital in the new company, Africontainers-Zaire, was held as follows:
40% by Mr. Zala, a Zairean national; 30% by Ms Dewast, a French
national; and 30% by Africom-Zaire. It too was entered in the Trade
Register of the city of Kinshasa. In 1980 Africom-Zaire’s two partners in
Africontainers-Zaire withdrew. The parts sociales in Africontainers-Zaire
were then held as follows: 60% by Africom-Zaire and 40% by Mr. Diallo.
Mr. Diallo then became the manager of Africontainers-Zaire.
4. Later on, the 2 companies’ relationship with their business partners started
to deteriorate and so the 2 companies, through Mr. Diallo, initiated various
steps, including judicial ones, to revocer the debts.
5. Africom-Zaire claims payment from DRC of a debt, resulting from default
in payment for deliveries of listing paper to the Zairean State, which DRC
acknowledged.
6. Africom-Zaire also seeks to recover overpayments of rent with Plantation
Lever au Zaire (PLZ).
7. Africontainers-Zaire is also in dispute with Zaire Fina, Zaire Shell and Zaire
Mobil Oil, as well as with the Office National des Transports (ONATRA)
and the Generale des Carrieres et des Mines (Gecamines) concerning
 alleged violations of contractual exclusivity clauses and the lay-up,
improper use or destruction or loss of containers.
8. The Prime Minister of Zaire issued an expulsion Order against Mr. Diallo
for his “presence and conduct have breached public order in Zaire,
especially in the economic, financial and monetary areas, and continue to do
so”. He was then deported and returned to Guinea. His removal was
formalized and served upon him in the shape of a notice of refusal of entry
on account of illegal residence.
9. In the proceedings, Guinea maintained that Mr. Diallo’s arrest, detention
and expulsion were the culmination of a DRC policy to prevent him from
recovering the debts owed to his companies. The DRC rejected that
allegation and argued that his expulsion was justified by the fact that his
presence and conduct breached public order in Zaire.
10. Violations of rights invoked by Guinea. Guinea seeks to exercise its
diplomatic protection on behalf of Mr. Diallo for the violation alleged to
have occurred at the time of his arrest, detention and expulsion, or to have
derived therefrom, of three categories of rights:
a. his individual personal rights,
b. his direct rights as shareholder in Africom-Zaire and
Africontainers-Zaire, and
c. the rights of those companies, by “substitution”.
11. Jurisdiction of the court. To establish the jurisdiction of the Court, Guinea
relies on the declarations made by the Parties under Article 36, paragraph 2,
of the Statute. The DRC acknowledges that the declarations are sufficient to
found the jurisdiction of the Court in the present case. DRC nevertheless
challenged the admissibility of Guinea’s application because:
a. according to the DRC, Guinea lacks standing to act in the current
proceedings since the rights which it seeks to protect belong to
Africom-Zaire and Africontainers-Zaire, Congolese companies,
not to Mr. Diallo.
b. neither Mr. Diallo nor the companies have exhausted the remedies
available in the Congolese legal system to obtain reparation for the
injuries claimed by Guinea before the Court.
ISSUE/s:
1. WoN Guinea has met the requirements for the exercise of diplomatic
protection, that is to say whether Mr. Diallo is a national of Guinea and
whether he has exhausted the local remedies available in the DRC.—NO
but this is because the Diallo is justified in not exhausting local remedies
since the expulsion was done via “refusal of entry” which is not appealable.
2. WoN the application is admissible in so far as it concerns protection of Mr.
Diallo’s direct rights as a shareholder in the 2 companies.—YES, Guinea
does have standing in this case in so far as its action involves a person of its
nationality, Mr. Diallo, and is directed against the allegedly unlawful acts of
the DRC which are said to have infringed his rights, particularly his direct
rights as shareholder
3. WoN the application is admissible in so far as it concerns the exercise of
diplomatic protection with respect to Mr. Diallo “by substitution for” the 2
companies.—NO because the general rule applies in this case
RULING: For lack of standing:
It is admissible as regards: (1) protection of Mr. Diallo’s direct rights as shareholder
of the 2 companies
It is inadmissible as regards: (1) protection of Mr. Diallo’s in respect of alleged
violations of rights of the 2 companies
For non-exhaustion of local remedies:
It is admissible as regards: (1) protection of Diallo’s rights as an individual, (2)
protection of Diallo’s rights as a shareholder of the 2 companies
It is inadmissible as regards: (1) protection of Mr. Diallo in respect of alleged
violations of the rights of the 2 companies
RATIO:
Admissibility of the application in so far as it concerns the protection of Mr.
Diallo’s rights as an individual.
1. DRC claims:
a. Guinea’s claims in respect of Mr. Diallo’s rights as an individual
are inadmissible because he “[has not] exhausted the available and
effective local remedies existing in Zaire, and subsequently in the
Democratic Republic of the Congo”.
b. DRC maintained that its domestic legal system provided for
available, effective remedies which Mr. Diallo should have
exhausted, and that his expulsion from the territory was lawful.
The DRC acknowledges that the notice signed by the immigration
officer “inadvertently” refers to “refusal of entry” (refoulement)
instead of “expulsion”. It does not challenge Guinea’s assertion
that Congolese law provides that refusals of entry are not
appealable. The DRC nevertheless maintains that “despite this
error, it is indisputable . . . that this was indeed an expulsion and
not a refusal of entry”. According to the DRC, calling the action a
refusal of entry was therefore not intended to deprive Mr. Diallo of
a remedy.
2. Guinea claims:
a. with respect to Mr. Diallo’s expulsion from the Congolese
territory, that there were no effective remedies first in Zaire, nor
later in the DRC, against this measure. The expulsion was by way
of refusal of entry which precluded any possibility of redress.
b. That “[a]dministrative or other remedies which are neither judicial
nor quasi-judicial and are discretionary in nature are not . . . taken
into account by the local remedies rule”.
c. even though some remedies may in theory have been available to
Mr. Diallo in the Congolese legal system, they would in any event
 have offered him no reasonable possibility of protection at the time
as the objective in expelling Mr. Diallo was precisely to prevent
him from pursuing legal proceedings.
3. Under customary international law, diplomatic protection “consists of
the invocation by a State, through diplomatic action or other means of
peaceful settlement, of the responsibility of another State for an injury
caused by an internationally wrongful act of that State to a natural or
legal person that is a national of the former State with a view to the
implementation of such responsibility”
4. It isn’t disputed by the DRC that Mr. Diallo’s nationality if that of Guinea.
It also notes that the Court notes, as it stated in the Interhandel (Switzerland
v. United States of America) case, that “[t]he rule that local remedies must
be exhausted before international proceedings may be instituted is a well-
established rule of customary international law” which “has been generally
observed in cases in which a State has adopted the cause of its national
whose rights are claimed to have been disregarded in another State in
violation of international law.”
5. The dispute is whether or not the Congolese system actually offered local
remedies which Diallo should’ve exhausted before going to this court.
6. It is upon Guinea to prove that local remedies where exhausted while it is
upon DRC to prove that these remedies weren’t exhausted.
7. In this case, the expulsion was done via “refusal of entry” which is not
appealable under Congolese law. DRC cannot now claim that its
administrative agencies merely erred and that the “refusal of entry”
should have been treated as an expulsion.
8. Mr. Diallo is then justified in believing that it isn’t appealable.
9. Even if it was indeed an expulsion and not a refusal of entry, DRC still
failed to show that means of redress against expulsion decisions are
available under its domestic law.
10. The DRC did, it is true, cite the possibility of requesting reconsideration by
the competent administrative authority. The Court nevertheless recalls that,
while the local remedies that must be exhausted include all remedies of a
legal nature, judicial redress as well as redress before administrative bodies,
administrative remedies can only be taken into consideration for purposes
of the local remedies rule if they are aimed at vindicating a right and not at
obtaining a favour, unless they constitute an essential prerequisite for the
admissibility of subsequent contentious proceedings. Thus, the possibility
open to Mr. Diallo of submitting a request for reconsideration of the
expulsion decision to the administrative authority having taken it ⎯ that is to
say the Prime Minister ⎯ in the hope that he would retract his decision as a
matter of grace cannot be deemed a local remedy to be exhausted.
Admissibility of the application in so far as it concerns protection of Mr. Diallo’s
direct rights as a shareholder in the 2 companies.
With regard to Guinea’s standing:
1. DRC accepts that in international law, States of nationality has the right to
exercise its diplomatic protection in favor of shareholders when there is a
direct injury. It nonetheless contends that “international law allows for [this]
protection . . . only under very limited conditions which are not fulfilled in
the present case”.
2. DRC claims Guinea is not seeking to protect the rights of Diallo as a
shareholder but the rights of the 2 companies with a violation of the rights
of Diallo. The DRC further asserts that action to protect the direct rights of
shareholders as such applies to only very limited cases and, relying on the
Judgment of the Court in the Barcelona Traction case, contends that the
only acts capable of violating those rights would consequently be “acts of
interference in relations between the company and its shareholders”. For the
DRC, therefore, the arrest, detention and expulsion of Mr. Diallo could not
constitute acts of interference on its part in relations between the
shareholder Mr. Diallo and the companies Africom-Zaire and
Africontainers-Zaire.
3. Guinea refers to the Barcelona traction case where the court rules that “an
act directed against and infringing only the company’s rights does not
involve responsibility towards the shareholders, even if their interests are
affected” but claims that the situation is different if the act complained of is
aimed at the direct rights of the shareholder as such.
4. Guinea claims that “in fact and in law it was virtually impossible to
distinguish Mr. Diallo from his companies” and the arrest, detention and
expulsion of Mr. Diallo not only had the effect “of preventing him from
continuing to administer, manage and control any of the operations” of his
companies, but were specifically motivated by the intent to prevent him
from exercising these rights, from pursuing the legal proceedings brought
on behalf of the companies, and thereby from recovering their debts. And
that contrary to what is claimed by the DRC, Mr. Diallo could not validly
exercise his direct rights as shareholder from his country of origin.
5. To establish the precise legal nature of Africom-Zaire and Africontainers-
Zaire, the Court must refer to the domestic law of the DRC. It indicates that
Congolese law accords an SPRL independent legal personality distinct from
that of its shareholders, particularly in that the property of the shareholders
is completely separate from that of the company, and in that the
shareholders are responsible for the debts of the company only to the extent
of the resources they have subscribed. Consequently, the company’s debts
receivable from and owing to third parties relate to its respective rights and
obligations.
6. The Court recalls that the exercise by a State of diplomatic protection on
behalf of a natural or legal person, who is a shareholder, having its
nationality, seeks to engage the responsibility of another State for an injury
caused to that person by an internationally wrongful act committed by that
State. What amounts to the internationally wrongful act, in the case of
shareholders, is the violation by the respondent State of their direct
rights in relation to a legal person, direct rights that are defined by the
domestic law of that State. On this basis, diplomatic protection of the
 direct rights of shareholders of an SPRL or shareholders of a public
limited company is not to be regarded as an exception to the general
legal régime of diplomatic protection for natural or legal persons, as
derived from customary international law.
7. Having considered the arguments advanced by the Parties, the Court finds
that Guinea does indeed have standing in this case in so far as its action
involves a person of its nationality, Mr. Diallo, and is directed against the
allegedly unlawful acts of the DRC which are said to have infringed his
rights, particularly his direct rights as shareholder of the two companies
Africom-Zaire and Africontainers-Zaire. The Court notes that Mr. Diallo,
who was shareholder in both companies, also held the position of gérant
(manager) in each of them. An shareholder of an SPRL holds parts sociales
in its capital, while the gérant is an organ of the company acting on its
behalf.
8. the Court concludes that the objection of inadmissibility raised by the DRC
due to Guinea’s lack of standing to protect Mr. Diallo cannot be upheld in
so far as it concerns his direct rights as shareholder of Africom-Zaire and
Africontainers-Zaire.
With regard to non-exhaustion of local remedies:
1. The Court has already found that the DRC has not proven that there were
effective remedies, under Congolese law, against the expulsion Order.
At no time has the DRC argued that remedies distinct from those in respect
of Mr. Diallo’s expulsion existed in the Congolese legal system against the
alleged violations of his direct rights as and that he should have exhausted
them. According to the Court, the Parties indeed devoted some discussion to
the question of the effectiveness of local remedies in the DRC but have
confined themselves in it to examining remedies open to Africom-Zaire and
Africontainers-Zaire, without considering any which may have been open to
Mr. Diallo as shareholder in the companies. Inasmuch as it has not been
argued that there were remedies that Mr. Diallo should have exhausted in
respect of his direct rights as shareholder, the question of the effectiveness
of those remedies does not in any case arise.
Admissibility of the application in so far as it concerns the exercise of diplomatic
protection with respect to Mr. Diallo “by substitution for” the 2 companies.
With regard to Guinea’s standing:
1. DRC claims that Guinea cannot invoke considerations of equity to justify
the right to exercise its diplomatic protection in favor of Diallo by
substitution for the 2 companies. Diplomatic protection “by substitution” is
said by the DRC to go “far beyond what positive international law
provides” and neither the Court’s jurisprudence nor State practice
recognizes such a possibility.
2. Guinea observes that it is not asking the Court to resort to equity contra
legem, but it contends that, in the Barcelona Traction case, the Court
referred, in a dictum, to the possibility of an exception, founded on reasons
of equity, to the general rule of the protection of a company by its national
State, “when the State whose responsibility is invoked is the national State
of the company”.
3. Guinea claims that the application of protection by substitution is
particularly appropriate in this case, as Africom-Zaire and Africontainers-
Zaire are SPRLs, which have a marked intuitu personae character and
which, moreover, are statutorily controlled and managed by one and the
same person. Further, it especially points out that Mr. Diallo was bound,
under Zairean legislation, to incorporate the companies in Zaire.
4. The principle in the Barcelona Traction case is that: “Not a mere interest
affected, but solely a right infringed involves responsibility, so that an act
directed against and infringing only the company’s rights does not involve
responsibility towards the shareholders, even if their interests are affected.”
5. the theory of protection by substitution seeks to offer protection to the
foreign shareholders of a company who could not rely on the benefit of an
international treaty and to whom no other remedy is available, the allegedly
unlawful acts having been committed against the company by the State of
its nationality. Protection by “substitution” would therefore appear to
constitute the very last resort for the protection of foreign investments.
Having examined State practice and decisions of international courts and
tribunals, it is of the opinion that these do not reveal ⎯ at least at the present
time ⎯ an exception in customary international law allowing for protection
by substitution, such as is relied on by Guinea.
6. The Court observes that it appears natural that Africom-Zaire and
Africontainers-Zaire were created in Zaire and entered in the Trade Register
of the city of Kinshasa by Mr. Diallo, who had settled in the country in
1964. Furthermore, and above all it has not satisfactorily been established
before the Court that their incorporation in that country, as legal entities of
Congolese nationality, would have been required of their founders to enable
the founders to operate in the economic sectors concerned. The Court thus
concludes that the two companies were not incorporated in such a way
that they would fall within the scope of protection by substitution.
7. The Court cannot accept Guinea’s claim to exercise diplomatic protection
by substitution. It is therefore the normal rule of the nationality of the
claims which governs the question of the diplomatic protection of Africom-
Zaire and Africontainers-Zaire. The companies in question have Congolese
nationality.
8. The objection as to inadmissibility raised by the DRC owing to Guinea’s
lack of standing to offer Mr. Diallo diplomatic protection as regards the
alleged unlawful acts of the DRC against the rights of the two companies
Africom-Zaire and Africontainers-Zaire is consequently well founded and
must be upheld.
With regard to non-exhaustion of local remedies:
1. Having concluded that Guinea is without standing to offer Mr. Diallo
diplomatic protection as regards the alleged unlawful acts of the DRC
against the rights of the companies Africom-Zaire and Africontainers-Zaire,
the Court need not further consider the DRC’s objection based on the non-
exhaustion of local remedies.
 BATCH 8
State” and when these acts involved the threat or use of force.
001 Nicaragua vs. US (Siapno)
June 27, 1986 | ICJ | Prohibition on the Use of Threat and Force
FACTS:
PLAINTIFF-APPELLEE: Republic of Nicaragua
DEFENDANT APPELLANT: United States of America
SUMMARY: This case involved the military and paramilitary activities carried
out by the United States against Nicaragua. Nicaragua asked the Court to find
that these activities violated international law. When US found out that
Nicaragua was providing logistical support and weapons to guerrillas in El
Salvador, US supported groups fighting against the Nicaraguan Government
called the “contras” (i.e. US Congress made provision for funds to be used by
US intelligence agencies for supporting directly or indirectly military or
paramilitary operations in Nicaragua). Nicaragua brought a suit against the US
on the ground that the US was responsible for illegal military and paramilitary
activities in and against Nicaragua, alleging that the US is effectively in control
of the contras, US devised their strategy and directed their tactics, and that
the contras were paid for and directly controlled by the US. Attacks against
Nicaragua included the mining of Nicaraguan ports, and other attacks on ports,
oil installations, and a naval base. Nicaragua also alleged that aircrafts belonging
to the US flew over Nicaraguan territory. Issue is WoN US violated the
prohibition on the use of force – YES US violated its customary international
law obligation not to use force against another State when its activities with
the contras resulted in the threat or use of force. The prohibition on the use of
force is found both in Article 2(4) of the UN Charter and in customary
international law. Court sub-classified the use of force as:
a. “most grave forms of the use of force” (i.e. those that constitute an armed
attack); and
b. “other less grave forms” of the use of force (i.e. organizing, instigating,
assisting, or participating in acts of civil strife and terrorist acts in another
State – when the acts referred to involve a threat or use of force, but not
amounting to an armed attack).
Arming and training the contras and laying mines in Nicaraguan territorial
waters was found to be in breach with principles of non-intervention and
prohibition of use of force. Nicaragua's dealings with the armed opposition in
El Salvador, although it might be considered a breach with the principle of non-
intervention and the prohibition of use of force, did not constitute "an armed
attack", which is the wording in article 51 justifying the right of self-defence.
The claim of United States to be acting in collective self-defense, therefore,
must fail because self-defense is only available against armed attacks. However,
DOCTRINE: US violated the customary international law prohibition on the
use of force when it assisted the contras by “organizing or encouraging the
organization of irregular forces and armed bands… for incursion into the
territory of another state” and participated “in acts of civil strife…in another
1. In July 1979, the Government of President Somoza was replaced by a
government installed by Frente Sandinista de Liberacion Nacional (FSLN).
2. Supporters of the former Somoza Government and former members of the
National Guard opposed the new government.
3. The US – initially supportive of the new government – changed its attitude
when it found that Nicaragua was providing logistical support and
weapons to guerrillas in El Salvador.
4. In April 1981 the US stopped its aid to Nicaragua and in September 1981,
according to Nicaragua, the US “decided to plan and undertake activities
directed against Nicaragua”
5. The armed activities against the new Government was carried out mainly by
(1) Fuerza Democratica Nicaragüense (FDN), which operated along the
border with Honduras, and (2) Alianza Revolucionaria Democratica
(ARDE), which operated along the border with Costa Rica.
6. Initial US support to these groups fighting against the Nicaraguan
Government (called “contras”) was covert. Later, US officially
acknowledged its support (In 1983 budgetary legislation enacted by the
US Congress made specific provision for funds to be used by US
intelligence agencies for supporting “directly or indirectly military or
paramilitary operations in Nicaragua”)
7. Nicaragua brought a suit against the US on the ground that the US was
responsible for illegal military and paramilitary activities in and against
Nicaragua, alleging that the US is effectively in control of the contras,
US devised their strategy and directed their tactics, and that
the contras were paid for and directly controlled by the US.
8. Nicaragua also alleged that some attacks against Nicaragua were carried
out, directly, by the US military – with the aim to overthrow the
Government of Nicaragua.
9. Attacks against Nicaragua included the mining of Nicaraguan ports,
and other attacks on ports, oil installations, and a naval base. Nicaragua
alleged that aircrafts belonging to the US flew over Nicaraguan territory to
gather intelligence, supply to the contras in the field, and to intimidate the
population
10. The US did not appear before the ICJ at the merit stages, after refusing to
accept the ICJ’s jurisdiction to decide the case. The US at the jurisdictional
phase of the hearing, however, stated that it relied on an inherent right of
collective self-defense guaranteed in Article 51 of the UN Charter when it
provided “upon request proportionate and appropriate assistance…” to
Costa Rica, Honduras, and El Salvador in response to Nicaragua’s acts of
aggression against those countries.
 11. 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 also
challenged by the US.
ISSUE:
1. MAIN ISSUE: WoN US violated the prohibition on the use of force – YES
US violated its customary international law obligation not to use force
against another State when its activities with the contras resulted in the
threat or use of force
2. WoN ICJ had jurisdiction ove the dispute – 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
RULING: [No wherefore part sa case, so I’ll just repeat the answer to the issue] US
violated its customary international law obligation not to use force against another
State when its activities with the contras resulted in the threat or use of force.
RATIO:
US violated its customary int’l obligation not to use force against another State
1. The prohibition on the use of force is found both in Article 2(4) of the UN
Charter and in customary international law.
2. Court sub-classified the use of force as:
a. “most grave forms of the use of force” (i.e. those that constitute an
armed attack); and
b. “other less grave forms” of the use of force (i.e. organizing,
instigating, assisting, or participating in acts of civil strife and
terrorist acts in another State – when the acts referred to involve a
threat or use of force, but not amounting to an armed attack).
3. US violated the customary international law prohibition on the use of force
when it laid mines in Nicaraguan ports. It also violated this prohibition
when it attacked Nicaraguan ports, oil installations, and a naval base.
4. US violated the customary international law prohibition on the use of
force when it assisted the contras by “organizing or encouraging the
organization of irregular forces and armed bands… for incursion into
the territory of another state” and participated “in acts of civil
strife…in another State” and when these acts involved the threat or
use of force.
The supply of funds to the contras did not violate the prohibition on the use of
force
5. Nicaragua had previously argued before the Court that the US determined
the timing of offensives against Nicaragua when it provided funds to
the contras. The Court held that “…it does not follow that each provision of
funds by the US was made to set in motion a particular offensive, and that
that offensive was planned by the US.”
6. The Court held further that the arming and training of the contras and
the supply of funds, in itself, only amounted to acts of intervention in the
internal affairs of Nicaragua and did not violate the prohibition on the use of
force.
7. The US could only justify its action on the basis of collective self-
defense, if certain criteria were met. However, US failed to meet the
criteria.
8. The Court held that an armed attack included:
(1) action by regular armed forces across an international border; and
(2) the sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another State of
such gravity as to amount to an actual armed attack conducted by regular
forces, or its substantial involvement therein.
9. The Court further held that mere frontier incidents will not be considered as
armed attacks, unless, because of its scale and effects, it would have been
classified as an armed attack had it been carried out by regular forces.
§ Assistance to rebels by providing weapons or logistical support did
not constitute an armed attack. Instead, it can be regarded as a threat
or use of force or an intervention in the internal or external affairs
of other States
10. Under Article 51 of the UN Charter and under CIL – self-defense is only
available against a use of force that amounts to an armed attack.
Therefore, Court held that the US could not justify its military and
paramilitary activities on the basis of collective self-defense.
11. Article 51 of the UN Charter sets out the treaty based requirements on the
exercise of the right of self-defense stating that “Nothing in the present
Charter shall impair the inherent right of individual or collective self-
defense if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken measures necessary to
maintain international peace and security. Measures taken by Members in
the exercise of this right of self-defense shall be immediately reported to
the Security Council.”
12. When a State claims that it used force in collective self-defense, the Court
would examine the following:
a. Whether the circumstances required for the exercise of self-defense
existed; and
b. Whether the steps taken by the State, which was acting in self-defense,
corresponds to the requirements of international law which are:
(1) A State must have been the victim of an armed attack;
(2) That State must declare itself as a victim of an armed attack. The
assessment on whether an armed attack had taken place or not, is
done by the State who was subjected to the attack. A third State
cannot exercise a right of collective self-defense based that third
State’s own assessment;
(3) In the case of collective self-defense, the victim State must
request for assistance. The Court held that “there is no rule
 permitting the exercise of collective self-defense in the absence
of a request by the State which regards itself as the victim of an
armed attack”;
(4) A State that is attacked, does not, under customary international
law, have the same obligation as under Article 51 of the UN
Charter to report to the Security Council that an armed attack
happened – but the Court held that “the absence of a report may
be one of the factors indicating whether the State in question was
itself convinced that it was acting in self-defense”
13. The Court looked extensively into the conduct of Nicaragua, El Salvador,
Costa Rica, and Honduras and found that:
a. none of the countries who were allegedly subject to an armed
attack by Nicaragua declared themselves as victims of an armed
attack;
b. they did not request assistance from the US to exercise its right
of self-defense
c. the US did not claim that when it used force, it was acting under
Article 51 of the UN Charter;
d. the US did not report that it was acting in self-defense to the
Security Council.
14. The Court concluded that, based on the above, the US cannot justify its use
of force as collective self-defense. In any event, the Court held that
the criteria relating to necessity and proportionality, that is required to be
met when using force in self-defense – were also not fulfilled.
US breached its CIL obligation not to intervene in the affairs of another State
15. US breached its CIL obligation not to intervene in the affairs of another
State when it trained, armed, equipped and financed the contra forces or
encouraged, supported and aided the military and paramilitary activities
against Nicaragua.
16. The principle of non-intervention requires that every State has a right to
conduct its affairs without outside interference. In other words, the principle
“…forbids States or groups of States to intervene directly or indirectly in
internal or external affairs of other States”, corollary of the principle of
sovereign equality of States.
17. Intervention is wrongful when it uses methods of coercion. The element of
coercion, which defines, and indeed forms the very essence of, prohibited
intervention, is particularly obvious in the case of an intervention which
uses force, either in the direct form of military action, or in the indirect
form of support for subversive or terrorist armed activities within another
State.
18. HOWEVER, the Court held that the US did not devise the strategy, direct
the tactics of the contras or exercise control on them in manner so as to
make their acts committed in violation of international law imputable to the
US. The Court concluded that “a number of military and paramilitary
operations of the contras were decided and planned, if not actually by US
advisers, then at least in close collaboration with them, and on the basis of
the intelligence and logistic support which the US was able to offer,
particularly the supply aircraft provided to the contras by the US” but not all
contra operations reflected strategy and tactics wholly devised by the US.
19. The Court has taken the view that US participation, even if preponderant or
decisive, in the financing, organizing, training, supplying and equipping of
the contras, the selection of its military or paramilitary targets, and the
planning of the whole of its operation, is still insufficient in itself, on the
basis of the evidence in the possession of the Court, for the purpose of
attributing to the US the acts committed by the contras in the course of their
military or paramilitary operations in Nicaragua.
20. All the forms of US participation mentioned above, and even the general
control by the respondent State over a force with a high degree of
dependency on it, would not in themselves mean, without further evidence,
that the US directed or enforced the perpetration of the acts contrary to
human rights and humanitarian law alleged by the applicant State. Such acts
could well be committed by members of the contras without the control of
the US. For this conduct to give rise to legal responsibility of the US, it
would in principle have to be proved that that State had effective control of
the military or paramilitary.”
21. Interesting, however, the Court also held that providing humanitarian aid to
persons or forces in another country, whatever their political affiliations or
objectives, cannot be regarded as unlawful intervention, or as in any other
way contrary to international law”
22. In the event one State intervenes in the affairs of another State, the victim
State has a right to intervene in a manner that is short of an armed attack
23. “While an armed attack would give rise to an entitlement to collective self-
defense, a use of force of a lesser degree of gravity cannot produce any
entitlement to take collective counter-measures involving the use of force.
The acts of which Nicaragua is accused, even assuming them to have been
established and imputable to that State, could only have justified
proportionate counter-measures on the part of the State which had been the
victim of these acts, namely El Salvador, Honduras or Costa Rica.
24. They could not justify counter-measures taken by a third State, the US, and
particularly could not justify intervention involving the use of force.
US violated its customary international law obligation not to violate the sovereignty
of another State
25. US did so when it directed or authorized its aircrafts to fly over Nicaraguan
territory and when it laid mines in the internal waters of Nicaragua and its
territorial sea
26. The Court examined evidence and found that in early 1984 mines were laid
in or close to ports of the territorial sea or internal waters of Nicaragua “by
persons in the pay or acting ion the instructions” of the US and acting under
its supervision with its logistical support. The US did not issue any warning
 on the location or existence of mines and this resulted in injuries and
increases in maritime insurance rates.
27. The Court found that the US also carried out high-altitude reconnaissance
flights over Nicaraguan territory and certain low-altitude flights,
complained of as causing sonic booms. It held that a State’s sovereignty
extends to its internal waters, its territorial sea, and the airspace above its
territory. The US violated customary international law when it laid mines in
the territorial sea and internal waters of Nicaragua and when it carried out
unauthorised overflights over Nicaraguan airspace by aircrafts that belong
to or was under the control of the US.
 002 The Caroline Case (Soriano)
1813 | Justice, J. | Settlement of Disputes
PETITIONER: The Caroline
RESPONDENTS: United States
SUMMARY: An informal libel was filed concerning the Circuit Court of
Carolina’s order of forfeiture of the Caroline (ship) for vilation of the act sof
Congressprohibiting slave trade. Act of 1807 enacts that if any ship within the
jurisdiction of the US shall be fitted our or caused to said by any person, either
as master, factor or owner for procuring any person of color from any foreign
country to be transported to any place whatsoever within the jurisdiction of the
US to be held, sold, or disposed as slaves or to be held to service or labor shall
be forfeited to US. The claimant admitted that The Caroline came into this port
equipped like any common merchant vessel, and that the ship received fitments
and take on board articles calculated for slave trade only. It was satisfactorily
proved that the claimant, after receiving information that such equipments were
illegal, restored the Caroline to the condition in which it was when it entered this
port, but that this was not done til after the ship’s seizure, and that the wooden
parts of the fitments for slaves were marked as they were taken out of the vessel.
Circuit Judge decreed that the Caroline should be condemned as forfeited to the
US on the ground of sufficient evidence that it was for the intention to carry on
the slave trade. 1. Whether the Circuit Court of Carolina erred in ordering a
seizure of the Caroline for violation of the acts of Congress on slave trade –
YES. The vessel is only liable to forfeiture when she shall have been actually
fitted, equipped or prepared, not while she is fitting, equipping, or preparing. The
degree of equipment ought to have been stated that the Court might judge
whether it were such fitting, or equipment as is contemplated by the law. Upon
every information for a penalty, the offence should be fully proven.
DOCTRINE: The vessel is only liable to forfeiture when she shall have been
actually fitted, equipped or prepared, not while she is fitting, equipping, or
preparing. The degree of equipment ought to have been stated that the Court
might judge whether it were such fitting, or equipment as is contemplated by the
law. Upon every information for a penalty, the offence should be fully proved.
FACTS:
315. An informal libel for a forfeiture was filed against the Circuit Court of
South Carolina in case of a seizure for violation of the acts of Congress
respecting slave trade.
316. An information was filed against the Caroline based on the alleged violation
of the 1st section of an Act of Congress entitles, ‘An act to prohibit the
carrying on the saleve trade from US to any foreign place or country,’
(passed in 1794) or the 2nd Section of the Act, ‘An act to prohibit the
importation of slaves into any port ot place within the jurisdiction of US
from and after 1 January1808 (passed in 1807).
317. By the act of 1974, the fitting or sailing of a ship for the purpose of a traffic
in slaves to any foreign country subjects the ship concerned in such traffic
to forfeiture.
318. Act of 1807 enacts that if any ship within the jurisdiction of the US shall be
fitted our or caused to said by any person, either as master, factor or owner
for procuring any person of color from any foreign country to be
transported to any place whatsoever within the jurisdiction of the US to be
held, sold, or disposed as slaves or to be held to service or labor shall be
forfeited to US.
319. The claimant admitted that The Caroline came into this port equipped like
any common merchant vessel, and that the ship received fitments and take
on board articles calculated for slave trade only.
320. It was satisfactorily proved that the claimant, after receiving information
that such equipments were illegal, restored the Caroline to the condition in
which it was when it entered this port, but that this was not done til after the
ship’s seizure, and that the wooden parts of the fitments for slaves were
marked as they were taken out of the vessel.
321. In such condition, the vessel left Charleston bound to Havana and to no
other port.
322. The Caroline arrived at the Havana on 28 June, 1810, and that it was sold
on 6 August 1810 to Spanish subjects who used it for the African slave
trade.
323. Circuit Judge decreed that the Caroline should be condemned as forfeited to
the US on the ground of sufficient evidence that it was for the intention to
carry on the slave trade.
ISSUE/s:
75. Whether the Circuit Court of Carolina erred in ordering a seizure of the
Caroline for violation of the acts of Congress on slave trade – YES. The
vessel is only liable to forfeiture when she shall have been actually fitted,
equipped or prepared, not while she is fitting, equipping, or preparing.
RULING: This cause came on to be heard on the transcript of the record and was
argued by counsel, on consideration whereof it is the opinion of the Court that the
libel is too imperfectly drawn to found a sentence of condemnation thereon. The
sentence of the said circuit court is therefore. Reversed and the cause remanded to
the said circuit court with directions to admit the libel to be amended.
RATIO:
339. The libel does not state any certain specific offence. It is altogether in
the alternative. It does not state when, nor where, nor by whom the
vessel was seized—nor when, nor where, nor by whom, nor in what
manner the vessel was fitted out. It is altogether vague, uncertain and
informal.
340. An information in rem ought to be as precise and formal as an information
 in personam. The civil law requires that a libel should be certain and
positive in all material circumstances.
341. The statement of facts is as imperfect as the libel. The vessel is only
liable to forfeiture when she shall have been actually fitted, equipped or
prepared, not while she is fitting, equipping, or preparing. The degree of
equipment ought to have been stated that the Court might judge
whether it were such fitting, or equipment as is contemplated by the
law. Upon every information for a penalty, the offence should be fully
proved.
342. This case is like that of Moodie v. ship Alfred, 3, Dall. 307, in which this
Court decided that the ship was not illegally fitted out, although she had
taken on board some articles calculated for war.
343. THE COURT, after taking time to consider, directed the following sentence
to be entered.
344. 'This cause came on to be heard on the transcript of the record and was
argued by counsel, on consideration whereof, it is the opinion of the
Court, that the libel is too imperfectly drawn, to found a sentence of
condemnation thereon. The sentence of the said Circuit Court is therefore
reversed, and the cause remanded to the said Circuit Court, with directions
to admit the libel to be amended.'
 003 OIL PLATFORMS CASE, Iran vs US (STA.MARIA)
November 6, 2003 | ICJ | Settlement of Disputes
PETITIONERS: Islamic Republic of Iran
RESPONDENT: United States of America
SUMMARY: Iran instituted proceedings against the US in respect of a dispute
arising out of the attack on and destruction of three offshore oil production
complexes, owned and operated for commercial purposes by the National
Iranian Oil Company, by several warships of the United States Navy. In the
1996 judgment of this case, the ICJ ruled that the basis of the Court's jurisdiction
was a bilateral commercial agreement between Iran and the United States: the
1995 Treaty of Amity, Economic, and Consular Rights Between the United
States of America and Iran. In its Application, Iran contended that these acts
constituted a “fundamental breach” of various provisions of the Treaty, as well
as of international law. The United States Counter-Memorial included a counter-
claim concerning “Iran’s actions in the Gulf during 1987-88 which, among other
things, involved mining and other attacks on U.S.-flag or U.S.-owned vessels.
Iran maintains that the Court cannot entertain the counter- claim of the
USbecause it was presented without any prior negotiation, and thus does not
relate to a dispute "not satisfactorily adjusted by diplomacy" as contemplated by
Article XXI, paragraph 2, of the 1955 Treaty, which reads as follows: "Any
dispute between the High Contracting Parties as to the interpretation or
application of the present Treaty, not satisfactorily adjusted by diplomacy,
shall be submitted to the International Court of Justice, unless the High
Contracting Parties agree to settlement by some other pacific means."
The issue is WON ICJ can take cognizance of US’ counterclaim? –
Yes as the counterclaim was covered in the dispute settlement
clause in the treaty which was the basis for the jurisdiction of the
ICJ. It is established that a dispute has arisen between Iran and the
United States over the issues raised in the counter-claim. The Court
has to take note that the dispute has not been satisfactorily adjusted
by diplomacy. Whether the fact that diplomatic negotiations
have not been pursued is to be regarded as attributable to the
conduct of the one Party or the other is irrelevant for present
purposes, as is the question whether it is the Applicant or the
Respondent that has asserted a plea on this ground. As in previous
cases involving virtually identical treaty provisions, it is sufficient
for the Court to satisfy itself that the dispute was not
satisfactorily adjusted by diplomacy before being submitted to
the Court. (so in short here, the Court was satisfied that the
dispute was not satisfactorily adjusted by diplomacy as required by
the treaty thus, it can be submitted to the ICJ for settlement)
DOCTRINE: The dispute settlement clause in the treaty was the
basis for the jurisdiction of the International Court of Justice. It is
sufficient for the Court to satisfy itself that the dispute was not
satisfactorily adjusted by diplomacy before being submitted to the
Court. The court need not look into whether the fact that
diplomatic negotiations have not been pursued is to be regarded as
attributable to the conduct of the one Party or the other is irrelevant
for present purposes.
FACTS
1. On 2 November 1992, the Islamic Republic of Iran (Iran)
instituted proceedings against the United States of America
(US) in respect of a dispute arising out of the attack on and
destruction of three offshore oil production complexes, owned
and operated for commercial purposes by the National Iranian
Oil Company, by several warships of the United States Navy
on 19 October 1987 and 18 April 1988, respectively.
2. In its Application, Iran contended that these acts constituted a “fundamental
breach” of various provisions of the Treaty of Amity, Economic Relations
and Consular Rights between the United States and Iran, as well as of
international law.
3. The United States Counter-Memorial included a counter-claim concerning
“Iran’s actions in the Gulf during 1987-88 which, among other things,
involved mining and other attacks on U.S.-flag or U.S.-owned vessels”.
4. Iran maintains that the Court cannot entertain the counter- claim of the
United States because it was presented without any prior negotiation, and
thus does not relate to a dispute "not satisfactorily adjusted by diplomacy"
as contemplated by Article XXI, paragraph 2, of the 1955 Treaty, which
reads as follows: "Any dispute between the High Contracting Parties as to
the interpretation or application of the present Treaty, not satisfactorily
adjusted by diplomacy, shall be submitted to the International Court of
Justice, unless the High Contracting Parties agree to settlement by some
other pacific means."
5. Iran also maintains that the US counterclaim extends beyond the scope of
the Article X of the Treaty which is the only text in respect of which the
Court has jurisdiction, and that the Court cannot therefore uphold any
 submissions falling outside the terms of paragraph 1 of that Article:
“Between the territories of the two High Contracting Parties there shall be
freedom of commerce and navigation.”
ISSUE:
WON ICJ can take cognizance of US’ counterclaim? – Yes as the
counterclaim was covered in the dispute settlement clause in the treaty
which was the basis for the jurisdiction of the ICJ.
RULING:
THE COURT,
(1) By fourteen votes to two, Finds that the actions of the United
States of America against Iranian oil platforms on 19 October 1987 and 18 April
1988 cannot be justified as measures necessary to protect the essential security
interests of the United States of America under Article XX, paragraph 1 (d), of the
1955 Treaty of Amity, Economic Relations and Consular Rights between the United
States of America and Iran, as interpreted in the light of international law on the use
of force; finds further that the Court cannot however uphold the submission of the
Islamic Republic of Iran that those actions constitute a breach of the obligations of
the United States of America under Article X, paragraph 1, of that Treaty, regarding
freedom of commerce between the territories of the parties, and that, accordingly, the
claim of the Islamic Republic of Iran for reparation also cannot be upheld.
other is irrelevant for present purposes, as is the question
whether it is the Applicant or the Respondent that has asserted
a plea on this ground.
3. As in previous cases involving virtually identical treaty
provisions, it is sufficient for the Court to satisfy itself that
the dispute was not satisfactorily adjusted by diplomacy
before being submitted to the Court.
4. he United States, in presenting its final submissions on the counter- claim,
thus no longer relies on Article X of the 1955 Treaty as a whole, but on
paragraph 1 of that Article only, and, furthermore, recognizes the territorial
limitation of Article X, paragraph 1, referring specifically to the military
actions that were allegedly "dangerous and detrimental to commerce and
navigation between the territories of the United States and the Islamic
Republic of Iran" (emphasis added) rather than, generally, to "military
actions that were dangerous and detrimental to maritime com- merce".
5. By limiting the scope of its counter-claim in its final submissions, the
United States has deprived Iran's third objection of any object, and the
Court cannot therefore uphold it.
Please take note just in case Ma’am asks on the merits of the case
ICJ rejected the claims of both states. The court found that the U.S. actions against
Iranian oil platforms in 1987 and 1988 do not meet the treaty's essential security
exception but that they did not breach the treaty's freedom of commerce provision
and so Iran's claim against the U.S. could not be upheld, and (2) that the U.S.
counter-claim against Iran for reparation could not be upheld.

(2) By fifteen votes to one, Finds that the counter-claim of the United States of
America concerning the breach of the obligations of the Islamic Republic of Iran
under Article X, paragraph 1, of the above- mentioned 1955 Treaty, regarding
freedom of commerce and navigation between the territories of the parties, cannot be
upheld; and accordingly, that the counter-claim of the United States of America for
reparation also cannot be upheld.

RATIO:
1. The Court cannot uphold the objections of Iran. It is
established that a dispute has arisen between Iran and the
United States over the issues raised in the counter-claim.
2. The Court has to take note that the dispute has not been
satisfactorily adjusted by diplomacy. Whether the fact that
diplomatic negotiations have not been pursued is to be
regarded as attributable to the conduct of the one Party or the
 004 DR CONGO v. UGANDA (Tan)
Dec. 19, ‘05 | ICJ | Non-applicability of the doctrine of indispensable 3rd party/
PETITIONER: DR CONGO
RESPONDENTS: UGANDA
SUMMARY: On 23 June 1999, the Democratic Republic of the Congo (DRC)
filed in the Registry of the Court Applications instituting proceedings against
Burundi, Uganda and Rwanda “for acts of armed aggression committed in
flagrant breach of the United Nations Charter and of the Charter of the
Organization of African Unity.” One of these incidents is the clash between
Uganda and Rwanda in the city of Kisangani in 1999 and 2000 (take note of
this because as the clash here was between Uganda and Rwanda, but DR
Congo is saying that its people suffered human rights violations from the
forces of Uganda while such clash was happening). Uganda argues that
DRC’s claims relating to the Kisangani incident between Uganda and
Rwanda are inadmissible because the latter, a third party not in this case, has
not given its consent. According to Uganda, Rwanda’s legal interests form “the
very subject matter” of the decision which DR Congo is seeking, and that a
decision of the Court covering these events would infringe the “indispensable
third party” principle. On the other hand, DRC on the other hand argues that
Rwanda’s absence from these proceedings is totally irrelevant and such cannot
prevent the court from ruling on the question of Uganda’s responsibility. This is
so because DRC’s calim is for the recognition of Uganda’s sole responsibility
by its own use of force. The issue is whether or not the court can take cognizance
of the Kisangani incident even if Rwanda is not impleaded in the case. The Court
held that yes, because the indispensable third party principle does not apply.
Court observed that it is not precluded from adjudicating upon the claims
submitted to it in a case in which a third State “has an interest of a legal nature
which may be affected by the deci- sion in the case” provided that “the legal
interests of the third State which may possibly be affected do not form the
very subject-matter of the decision that is applied for.” In the present case,
the interests of Rwanda clearly do not constitute the very subject matter of the
decision on DRC’s calims against Rwanda, nor is the determination of Rwanda’s
responsibility a prerequisite for such a decision. The fact that some alleged
violations of international human rights law and international humanitarian law
by Uganda occurred in the courts of hostilities between Uganda and Rwanda
does not impinge on this finding
DOCTRINE: Court observed that it is not precluded from adjudicating upon the
claims submitted to it in a case in which a third State “has an interest of a legal
nature which may be affected by the deci- sion in the case” provided that “the
legal interests of the third State which may possibly be affected do not form
the very subject-matter of the decision that is applied for.”
The case is super duper long so I just put the things relevant to the topic of dispute
settlement
FACTS:
324. On 23 June 1999, the Democratic Republic of the Congo (DRC) filed in the
Registry of the Court Applications instituting proceedings against Burundi,
Uganda and Rwanda “for acts of armed aggression committed in flagrant
breach of the United Nations Charter and of the Charter of the Organization
of African Unity”.
325. In addition to the cessation of the alleged acts, Congo sought reparation for
acts of intentional destruction and looting and the restitution of national
property and resources appropriated for the benefit of the respective
respondent States.
326. In its Applications instituting proceedings against Burundi and Rwanda, the
DRC referred, as bases for the Court’s jurisdiction, to several contentions.
327. However, the Government of the DRC informed the Court on 15 January
2001 that it intended to discontinue the proceedings instituted against
Burundi and Rwanda, stating that it reserved the right to invoke
subsequently new grounds of jurisdiction of the Court.
328. The two cases were therefore removed from the List on 30 January 2001.
329. Among the many points, DR Congo alleges that the Republic of Uganda
committed acts of violence against nationals of Congo by killing, injuring
them, despoiling them of their property, by failing to take adequate
measures to prevent violations of human rights.
330. DRC claims that the Ugandan armed forces perpetrated wide-scale
massacres of civilians during their operations ni the DRC, and it resorted to
acts of torture and other inhumane and degrading treatment.
331. One of these incidents is the clash between Uganda and Rwanda in the
city of Kisangani in 1999 and 2000.
a. Take note of this because as the clash here was between
Uganda and Rwanda, but DR Congo is saying that its people
suffered human rights violations from the forces of Uganda
while such clash was happening
332. DR Congo also claims that these violations were committed:
a. That several Congolese children were abducted by the UPDF and
taken to Uganda for military training.
b. Ugandan armed forces failed to protect the civilian population in
combat operations. They said that the attacks carried out by IPDF
were without any distinction between combatants and non-
combatants.
c. That the Ugandan troops were involved in ethnic conflicts between
groups in the Congolese population.
333. In short, DRC argues that Uganda has breached its obligation of vigilance
incumbent upon it as an occupying Power by failing to enforce respect for
human rights and international humanitarian law.
334. On the other hand, Uganda argues that DRC has consistently failed to
 provide credible evidentiary basis to support its allegations of the latter’s 346. The court cited the case of Nauru v. Austrailia wherein the Court held that
allegations. again, the third party’s claim was not the very subject matter of the
335. Morever, Uganda argues that DRC’s claims relating to the Kisangani judgment to be rendered on.
incident between Uganda and Rwanda are inadmissible. 347. This present case and the case of Nauru v. Austrailia was different from the
336. Uganda submit that the court cannot have jurisdiction over this incident Monetary Gold case wherein the third party’s participation was a
because Rwanda has not given its consent. prerequisite for a decision to be taken on the applicant’s claim.
337. According to Uganda, Rwanda’s legal interests form “the very subject 348. In the present case, the interests of Rwanda clearly do not constitute the
matter” of the decision which DR Congo is seeking, and that a decision of very subject matter of the decision on DRC’s calims against Rwanda, nor is
the Court covering these events would infringe the “indispensable third the determination of Rwanda’s responsibility a prerequisite for such a
party” principle. decision.
338. Uganda argues that its culpability as a consequence of the conduct of its 349. The fact that some alleged violations of international human rights law and
armed forces, can only be assessed on the basis of appropriate legal international humanitarian law by Uganda occurred in the courts of
standards if the conduct of Rwanda’s armed forces is also assessed at the hostilities between Uganda and Rwanda does not impinge on this finding.
same time. 350. Thus, it is not necessary for Rwanda to be a party to this case for the Court
339. In the absence of evidence as to the role of Rwanda in the alleged to be able to determine whether Uganda’s conduct was a violation of these
violations, then it would be impossible to know if self-defense can be rules of international law.
availed of by Uganda, and with respect to how much of the damages it is
really liable for.
340. DRC on the other hand argues that Rwanda’s absence from these
proceedings is totally irrelevant and such cannot prevent the court from
ruling on the question of Uganda’s responsibility. This is so because DRC’s
calim is for the recognition of Uganda’s sole responsibility by its own use
of force.
341. DRC continues by saying that the Court can adjudicate on the events in
Kisangani regardless of whether it was Rwanda or Uganda who was
responsible for initiating the hositilities.
342. Since the application was filed against Uganda is independent, then it is
Uganda’s responsibility which is the subject matter, and the doctrine of
indispensable third party does not apply.

ISSUE/s:
76. W/N the Court may take cognizance of the Kisangani incident? Yes
because the indispensable third party principle does not apply.

RULING: Unanimously, finds admissible the claim submitted by the Democratic

Republic of the Congo relating to alleged violations by the Republic of Uganda of its
obligations under international human rights law and international humanitarian law
in the course of hostilities between Ugandan and Rwandan military forces in
Kisangani;

RATIO:
345. Court observed that it is not precluded from adjudicating upon the claims
submitted to it in a case in which a third State “has an interest of a legal
nature which may be affected by the deci- sion in the case” provided that
“the legal interests of the third State which may possibly be affected do
not form the very subject-matter of the decision that is applied for.”
005 PARTIAL AWARD: JUS AD BELLUM: ETHIOPIA’S CLAIMS 1-
8, ERITREA ETHIOPIA CLAIMS COMMISSION 2005 P
(TIMBOL)
December 19, 2005 | United Nations | Settlement of Disputes
PETITIONER: The Federal Democratic Republic of Ethiopia
RESPONDENTS: The State of Eritrea
SUMMARY: The Government of Ethiopia is seeking monetary compensation
from the Government of Eritrea. According to Ethiopia, the basis of their claims
for damages is the alleged use of force of Eritrea in occupying the territories of
Ethiopia, and the jus ad bellum (right to war). This use of force is allegedly a
full-scale invasion at certain areas of Ethiopia that resulted to the death of 8
Ethiopian Citizens. On Eritrea’s part, it contends that it fully complied with
international law in its resort to military operations. It’s arguments were first,
that the Commission (UN) has no jurisdiction to rule this award; second,
Ethiopia was unlawfully occupying Eritrean territories; third, that they were
acting in self-defense because of Ethiopian militants; and lastly, that it was
Ethiopia that declared war through their resolutions.
Whether or not the Commission has jurisdiction, and whether or not Eritrea is
liable.
The Commission held that the Commission has jurisdiction. Although the
parties had an agreement as to constituting an impartial body, the same has not
been done. And it has come to both their agreements to submit themselves to the
Commission, but only as to inquire as to the facts. The Commission also ruled
that although there was no proof that either Ethiopia and Eritrea marked their
territories in the origin of the conflict, but it is clear that self-defense cannot be
invoked to settle these territorial disputes. As to the argument on self-defense, it
was shown that it was Eritrea who actually did employ the use of forces in
certain areas of Ethiopia. And the charter provides that when a state invokes
self-defense, it must first inform the UN Security Council, which Eritrea failed
to do. However, as to the part of Ethiopia, it was able to comply with Art. 51
Charter on invoking self-defense, with regard to Eritrea’s use of force in
occupying Ethiopia’s territory. And lastly, as tot the jus ad bellum, or the
declaration of war, the resolutions done cannot be treated as such, because of
the evidence showing that Ethiopia did in fact withdraw its militants, but only
doing such acts in line with Self-defense with permission from the UN. It was
also noted that diplomatic and economic relations were still present even during
such time of war. Hence, as proved to be so, Eritrea is liable.
DOCTRINE: In international law, the essence of a declaration of war is an
explicit affirmation of the existence of a state of war between belligerents
Determination of the origins of the conflict and the nature of any
misunderstandings about the border, had they been made by the impartial body
anticipated by Article 3, could have been helpful in promoting reconciliation
and border delimitation, but they certainly would not have answered the
question of the legality of Eritrea’s resort to force
However, the practice of States and the writings of eminent publicists show that
self defense cannot be invoked to settle territorial disputes
FACTS:
15. This Claim has been brought to the Commission by Ethiopia pursuant to
Article 4 of the Agreement between the Government of the Federal
Democratic Republic of Ethiopia and the Government of the State of Eritrea
16. Ethiopia asks the Commission to find Eritrea liable for loss, damage and
injury suffered by Ethiopia, including loss, damage and injury suffered by
its nationals, as a result of the alleged use of force against them in violation
of the rules of international law regulating the resort to force, the jus ad
bellum, in May and June 1988. Ethiopia requests monetary compensation
a. According to Eritrea, it fully complied with international law in its
resort to military operations
17. In essence, Ethiopia contended that Eritrea planned and carried out these
attacks against Ethiopia in violation of tis obligations under international
law, including notably the requirement of Article 2, Par. 4, of the UN
Charter, that all Members refrain from the treat or use of force against the
territorial integrity or political independency of any State
a. Ethiopia alleged that, between May 12 and June 11, 1998, Ertirea
launched a “full scale” invasion at may points along their mutual
border from Badme in the west to Bure in the east
18. In addition to its jurisdictional objections, Eritrea denied Ethiopia’s
allegations on the merits. In its written pleadings, Eritrea made the
following three main defensive assertions:
a. That Ethiopia was unlawfully occupying Eritrean territory in the
area around Badme, which was the area of much of the initial
hostilities in May 1998;
b. That Ethiopian armed militia near Badme carried out forcible
intrusions into Eritrea in early May 1998 and fired on Eritrean
forces on May 6 and 7, killing 8 Eritrean soldiers and setting off
fighting between small units in the area during the next several
days; and
c. That it was Ethiopia that declared war on Eritrea on May 13, 1998
19. On the last day of the hearing, Eritrea argued that its actions in taking
Badme and adjacent areas on May 12, 1998 were lawful measures of self-
defense, consistent with Article 51 of the UN Charter, taken in response to
the fighting near Badme that began on May 6 and 5, 1998
a. While Eritrea asserted that these incidents occurred within Eritrean
territory, Ethiopia asserted that they occurred within Ethiopian
territory

ISSUES:
3. WoN the Commission has jurisdiction over the issue – YES,
RULING: In view of the foregoing, the Commission determines as follows:
1. The Commission has jurisdiction over the Claimant’s jus ad bellum Claim
2. The Respondent violated Article 2, paragraph 4, of the Charter of the
United Nations by resorting to armed force on May 12, 1998 and the
immediately following days to attack and occupy the town of Badme, then
under peaceful administration by the Claimant, as well as other territory in
the Claimant’s Thatay Adiabo and Laelay Adiabo Weredas
3. The Claimant’s contention that subsequent attacks by the Respondent along
other parts of their common border were pre-planned and coordinated
unlawful uses of force fails for lack of proof
4. The scope of damages for which the Respondent is liable because of its
violation of the jus ad bellum will be determined in the damages phase of
these proceedings
RATIO:
THE COMMISSION HAS JURISDICTION
27. Article 3 of their agreement provides for the creation of an
“independent and impartial body” to be appointed by the Secretary-
General of the Organization of African Unity in consultation with the
Secretary-General of the United Nations
a. The Commission understands that the independent body authorized
by Article 3 has never been constituted
28. Determination of the origins of the conflict and the nature of any
misunderstandings about the border, had they been made by the impartial
body anticipated by Article 3, could have been helpful in promoting
reconciliation and border delimitation, but they certainly would not have
answered the question of the legality of Eritrea’s resort to force
29. Moreover, it seems clear that Article 3 was carefully drafted to direct the
impartial body to inquire into matters of fact, not to make any
determinations of law
30. This Commission is the only body assigned by the Agreement with the duty
of deciding claims of liability for violations of international law
31. Upon first reading, the last sentence of Article 5 of the Agreement might
well be though to exclude the Commission’s jurisdiction over rules of
international law regulating the resort to force
a. That sentence provides that “the Commission shall not hear claims
arising from the cost of military operations, preparing for military
operations, or the use of force, except to the extent that such claims
involve violations of international humanitarian law.”
b. However, at an early stage of the proceedings, the Parties agreed
upon an interpretation of that sentence limiting it to claims solely
of the costs of the enumerated activities, and the Commission
agreed to respect that interpretation
c. Consequently, the Commission has jurisdiction pursuant to Article
5 over Ethiopia’s jus ad bellum Claim
AS TO THE FIRST ARGUMENT OF ERITREA
1. The Commission notes that border disputes between States are so
frequent that any exception to the prohibition of the threat or use of
force for territory that is allegedly occupied unlawfully would create a
large and dangerous hole in a fundamental rule of international law
2. It is true that the boundary between Eritrea and Ethiopia in the area of
Badme was never marked in the years when Eritrea was an Italian colony,
during Eritrea’s subsequent incorporation into Ethiopia, or after Eritrean
independence in 1993, and it is clear that the Parties had differing
conceptions of the boundary’s location
a. However, the practice of States and the writings of eminent
publicists show that self defense cannot be invoked to settle
territorial disputes
AS TO THE SECOND ARGUMENT OF ERITREA
1. The Commission notes that Eritrea did not report its use of armed
force against Ethiopia on May 12, 1998 to the Security Council as
measures taken in self-defense, as it would be obligated to do by Article
51 of the Charter in case of self-defense against armed attack
a. In general, recourse to the use of armed force by one State against
another is unlawful unless it is used in self-defense or occurs with
the sanction of the Security Council pursuant to Chapter VII of the
UN Charter
2. The evidence showed that at about 5:30 AM on May 12, 1998, Eritrean
armed forces, comprised of at least two brigades of regular soldiers,
supported by tanks and artillery, attacked the town of Badme and several
other border areas in Ethiopia’s Tahtay Adiabo Wereda, as well as at least
two places in its neighboring Laelay Adiabo Wereda.
3. On that day and in the days immediately following, Ertirean armed forces
then pushed across the flat Badme plain to higher ground in the east
4. Although the evidence regarding the nature of Ethiopian armed forces in the
area conflicted, the weight of the evidence indicated that the Ethiopian
defenders were composed merely of militia and some police, who were
quickly forced to retreat by the invading Eritrean forces
5. Given the absence of an armed attack against Eritrea, the attack that began
on May 12 cannot be justified as lawful self-defense under the UN Charter
6. In its Partial Award in Ethiopia’s Central Front Claims, the Commission
held that the best available evidence of the areas effectively administered by
Ethiopia in early May 1998 is that line to which they were obligated to
withdraw in 2000
 a. In the same Partial Award, the Commission explained why it msut
hold Eritrea liable for violations of international humanitarian law
committed by it within such territory and why such holdings
concerning conduct during the war have no effect on the
international boundary as subsequently determined by the Eritrea-
Ethiopia Boundary Commission
b. The same principle governs application of the jus ad bellum
7. Consequently, the Commission holds that Eritrea violated Article 2, par 4,
of the Charter of the United Nations by resorting to armed force to attack
and occupy Badme, then under peaceful administration by Ethiopia, as well
as other territory in Tahtay Adiabo and Laelay Adiabo Weredas of Ethiopia
in an attack that began on May 12, 1998, and is liable to compensate
Ethiopia, for the damages caused by the violation of international law

AS TO THE THIRD ARGUMENT

1. The Ethiopian Council of Ministers and Parliament passed a resolution
that condemned the May 12 invasion and demanded the unconditional
and immediate withdrawal of Eritrean forces from Ethiopian territory.
This resolution was not, as Eritrea has asserted, a declaration of war
2. In international law, the essence of a declaration of war is an explicit
affirmation of the existence of a state of war between belligerents
3. Nevertheless, the resolution made clear that Ethiopia would not accept
Eritrea’s advances as a fait accompli and was determined to act in self-
defense until the Eritrean forces withdrew or were compelled to leave the
areas they had occupied. Ethiopia so notified the UN Security Council,
pursuant to Article 51 of the UN Charter
4. Moreover, the Commission notes that the Parties subsequently maintained
diplomatic relations and some economic relations, both of which appear
inconsistent with a formal declaration of war
5. Ethiopia also contended that Eritrea carried out a program of pre-planned
and coordinated armed attacks in multiple locations in violation of
international law
a. This contention, however, has not been proved
b. The evidence indicated that Eritrea’s armed forces were more fully
mobilized than those of Ethiopia and thus had the initiative in the
first several months of the war, but that does not prove that
Eritrea’s actions, other than those in the areas of what became
known as the Western Front addressed in this Partial Award, were
predetermined
c. What is clear is that, once the armed attack in the Badme area
occurred and Ethiopia decided to act in self-defense, a war resulted
that proved impossible to restrict the areas where that initial attack
was made
 006 THE ENTEBBE INCIDENT (Chiqui)
N/A | N/A. | Intervention by Use of Threat or Force
PETITIONER: N/A
RESPONDENTS: N/A
SUMMARY: An Air France airliner was hijacked after leaving Athens. While
refueling in Libya, the four hijackers, claiming to be members of the Popular
Front for the Liberation of Palestine, ordered the plane to Entebbe Airport in
Uganda, where it was given permission to land. The hijackers demanded that 50
Palestinians should be released so that they will let go their hostages. It appeared
that Uganda failed to protect the foreign nationals. Because of this, Israel flew
transport aircraft and soldiers to Entebbe and rescued the hostages by force. The
hijackers were killed during the operation, as were some Ugandan and Israeli
soldiers. There was also extensive damage to the Ugandan aircraft and the
airport. Uganda condemned the acts of the Israel and demanded for
compensation. Israel argued that it only exercised its right to take military action
to protect its nationals in mortal danger which is recognized by all legal
authorities in international law. Also, the situation faced by Israel is that it calls
for the necessity of self-defence, leaving no choice of means and no moment for
deliberation. W/N Israel’s acts are justified – NO, because members of the
United Nations should settle their disputes through peaceful means. Use of threat
or force to settle disputes against another state violates their territorial integrity
and/or political independence. The Security Council decided that UN Charter
Article 2(4) should be followed which states that all members shall refrain in
their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations. That prohibition means
that Member States have an obligation to settle their international disputes by
peaceful means in order to maintain international peace and security.
DOCTRINE: All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the Purposes of the United
Nations.
(Just copied the article Atty. Lala sent because it was short. I also put the minutes of
the meetings indicated in the syllabus.)
THE ENTEBBE INCIDENT (This is the one Ma’am sent us)
FACTS:
1. On June 27, 1976, an Air France airliner bound for Paris from Tel Aviv was
hijacked over Greece after leaving Athens airport. Two of the hijackers
appear to have been West German nationals, the other two held Arab
passports. The airliner was diverted to Entebbe airport in Uganda where the
Jewish passengers (about 100) were separated from the others and the latter
released. The hijackers demanded the release of about 50 Palestinians
terrorists imprisoned in various countries. The evidence seems to
suggest the Uganda did not take such steps as it might have done
against the hijackers and, indeed, helped them, although Uganda
denied this. On July 3, 1976, Israel flew transport aircraft and soldiers
to Entebbe and rescued the hostages by force. The hijackers were killed
during the operation, as were some Ugandan and Israeli soldiers. There
was also extensive damage to Ugandan aircraft and the airport. The
following is an extract from the Security Council debate on the matter in
July 1976.
2. LT. COL. JUMA ORIS ABDULLAH (side of UGANDA)
a. Uganda gave all the help and hospitality it was capable of giving to
all the hostages. The response to this humanitarian gesture by
Zionist Israel – the vehicle of imperialism – was to invade Uganda,
once again living up to its record of barbarism and banditry…
b. We call upon this Council unreservedly to condemn in the
strongest possible terms Israel’s barbaric, unprovoked and
unwarranted aggression against the sovereign Republic of
Uganda. Uganda demands full compensation from Israel for
the damage to life and property caused during its invasion.
3. MR. HERZOG (side of ISRAEL)
a. Uganda violated a basic tenet of international law in failing to
protect foreign nationals on its territory. Furthermore, it
behaved in a manner which constituted a gross violation of the
1970 Hague Convention on the Suppression of Unlawful Seizure
of Aircraft. This Convention had been ratified by both Israel and
Uganda…
b. The right of a State to take military action to protect its
nationals in mortal danger is recognized by all legal authorities
in international law. In Self Defence in International Law,
Professor Bowett states, on page 87, that the right of the State
to intervene by the use or threat of force for the protection of
its national suffering injuries within the territory of another
State is generally admitted, both in the writings of jurists and
in the practice States. In the arbitration between Great Britain and
Spain in 1925, one of the series known as the Spanish Moroccan
claims Judge Huber, as Rapporteur of the Commission, stated:
i. However, it cannot be denied that at a certain point the
interest of a State in exercising protection over its
nationals and their property can take precedence over
territorial sovereignty, despite the absence of any
conventional provisions. It presupposes the inadequacy
 of any other means of protection against some injury,
actual or imminent, to the persons or property of nationals
and, moreover, an injury which results either from the
acts of the territorial State and its authorities or from the
acts of individuals or groups of individuals which the
territorial State is unable, or unwilling, to prevent.
4. In the Law of Nations, 6th Edition, p. 427, Brierly states as follows:
a. Every effort must be made to get the United Nations to act. But, if
the United Nations is not in a position to move in time and the
need for instant action is manifest, it would be difficult to deny
the legitimacy of action in defence of nationals which every
responsible Government would feel bound to take if it had the
means to do so; this is, of course, on the basis that the action
was strictly limited to securing the safe removal of the
threatened nationals. …
5. The right of self-defence is enshrined in international law and in the Charter
of United Nations and can be applied on the basis of classic formulation, as
was done in the well-known Caroline Case, permitting such action where
there is a
a. Necessity of self-defence, instant, overwhelming, leaving no
choice of means and no moment for deliberation.
6. That was exactly the situation which faced the Government of Israel.
ISSUE/S: W/N Israel’s acts are justified – NO, because members of the United
Nations should settle their disputes through peaceful means. Use of threat or force to
settle disputes against another state violates their territorial integrity and/or political
independence.
RATIO:
7. MR. OYONO (CAMEROON)
a. The Security Council, which is responsible for the international
peace and security, must vigorously condemn this barbaric act
which constitutes a flagrant violation of the norms of international
law and flouts the spirit and letter of the United Nations Charter,
Article 2, paragraph 4:
i. All Members shall refrain in their international
relations from the threat or use of force against the
territorial integrity or political independence of any
state, or in any other manner inconsistent with the
Purposes of the United Nations.
b. In the spirit of the Charter, that prohibition means that Member
States have an obligation to settle their international disputes
by peaceful means in order to maintain international peace
and security. I need hardly remind you that our Organisation is
not dedicated to anarchy or to the notion that might makes right,
but is an organized community whose mutually accepted principles
and rules must be scrupulously respected, and their violation
adequately punished.
c. It is the corner-stone of our Organization that there can be no
justification for the use of force against the sovereignty,
independence or territorial integrity of a State, unless we wish
to imperil international co-operation in its present form and
indeed the very existence of States that do not yet possess
modern, sophisticated systems of detection and deterrence.
8. NOTE: The Entebbe Incident concerned the use of armed force by a state to
defend its nationals in the territory of another state. No resolution was
adopted at the end of the debate. A United Kingdom/United States draft
resolution which limited itself to condemning hijacking and did not
comment on the conduct necessary votes for adoption and a draft resolution
propose by Benin, Libya, Tanzania condemning Israel was not put to the
vote.
The Entebbe Incident, UN Doc. S/PV 1939 pp. 27, 51-59, 92 (These are the parts in
the syllabus)
27. On 30 June, following the report by the medical team and President Amin’s
persistent appeals, the hijackers agreed to release 47 hostages including the old, the
sick and some children. It was on the same day that for the first time the hijackers
issued their demand. This was for the release of certain persons imprisoned in Israel,
West Germany, France, Switzerland and Kenya, totalling in all 53. The demand was
given to the Somali Ambassador as well as to the Ugandan authorities. The Ugandan
authorities in turn passed it on to the French Ambassador. On that occasion also, the
hijackers set a new deadline of 2 p.m. local time, 1100 hours GMT, on 1 July, by
which time all the persons whose release they had requested should be transported to
Entebbe for an exchange of hostages.
51. Aerial hijacking and certain forms of violence do exist. It is an undeniable fact.
Even if in certain cases they reflect the despair of those who have been driven from
their homes, of those who have been deprived of the most elementary human rights,
no one can possibly approve the form, much less the consequences, of such violence.
This is a form of violence which is unforeseeable because it is the work of
persons or individuals who are difficult to control. The international community
has every right to be concerned about his form of violence, and is seeking to
eliminate its causes so as to remove the reasons for it.
52. But the violence indulged in, unfortunately, by certain uncontrollable
individuals becomes an outrage when it is built into a system by a Government
which is not only publicly assumes responsibility for it but even bases national
pride on it. The act committed by the Tel Aviv authorities against the Republic of
Uganda is a new form of violence infinitely more dangerous because it is work of an
organized authority which, moreover, is a Member of this Organization. Israel wants
to introduce the law of the jungle into the international relations and it may well
succeed if you, the members of the Council, do not demonstrate to Israel, clearly and
unequivocally, your disapproval.
53. In conclusion, it seems to met that it is the duty of the Council to ensure the
international law is respected, and to guarantee the rights organized by the Charter to
all Members of the Organization, particularly the weak ones, whose only defence
reposes in their legitimate rights and their voice in the Organization. The Republic
of Uganda has been the victim of aggression; its sovereignty and independence have
been violated. Uganda, like the whole of Africa, expects from you, the members of
the Council, an unequivocal condemnation of this violation of Uganda’s sovereignty;
it expects you to demand for it just and equitable compensation for the material
damage inflicted. If, unfortunately, the Council does not measure up to this
responsibility, the very raison d’être of the Organization will be threatened.
54. The PRESIDENT: The next speaker is the representative of Israel, on whom I
now call.
55. Mr. HERZOG (Israel): Mr. President, at the outset may I extend to you my
delegation’s best wishes on your assumption of the presidency of the Council, and
express my highest regard for your wide-ranging experience and personal qualities,
which will stand you in good stead in the deliberations of the Council. It is
particularly appropriate that a son of Rome should be presiding on the occasion –
Rome, in which the principle civis romanus sum was enunciated – the principle cited
on the occasion when a State’s duty to defend its nationals abroad was proclaimed.
UN Doc. S/PV 1941, pp. 31-32
31. It is with great
indignation that the people and the Government of the
Somali Democratic Republic view this unprovoked and unlawful act of
aggression. This feeling of indignation is aptly summed up in the telegram
transmitted by Jaalle Mohamed Siad Barre, President of the Somali Democratic
Republic, to Idi Amin, President of the Republic of Uganda. In that telegram, the
President of the Somali Democratic Republic stated : [the speaker read out the text in
quoted from another UN document]
32. The Republic of Uganda is not the first peace- loving country whose sovereignty
and territorial integrity have been violated by the arrogant racist Zionist regime.
Since its illegal occupation of the Arab land of Palestine 30 years ago, this regime
has been engaged in committing unprovoked aggression against sovereign nations.
For an illustration of Israel’s habitual transgression and its unbelievable, barefaced
inclination to indulge in an unrestrained attitude, we need only look at the
surrounding Arab States. We can recall the numerous occasions on which the world
came to the brink of an all-engulfing war because of the callous behaviour of the
Zionist regime in the Middle East and its utter disregard for international law. The
plight of the Palestinian Arab nation is a perfect example of the fiendish mentality of
the Israeli regime.

56. From a purely formal point of view, this meeting arises from a complaint brought
against the Government of Israel. However, let me make it quite clear that sitting
here as the representative of the Government of Israel, as I have the honour to do, I
am in no way sitting in the dock as the accused party. On the contrary, I stand here as
an accuser on behalf of the free and decent people in this world.

57. I stand here as an accuser of the forces of evil that have unleashed a wave of
piracy and terrorism which threatens the very foundation of human society.

58. I stand there as an accuser of all those evil forces which in their inherent
cowardice and abject craven attitude see blameless wayfarers and innocent women
and children – yes, even babes in arms – as a legitimate target for their evil
intentions.

59. I stand here as an accuser of the countries that, because of evil design or lack of
moral backbone, have collaborated with these bloodthirsty terrorists.

92. The entire story is one of collusion from beginning to end on the part of the
Ugandan Government. Let me spell out only a small proportion of the facts as
recounted by members of the Air France crew and the hostages who were released.
 007 Legality of the threat or use of nuclear weapons (VALLE)
8 July 1996 | ICJ. | Settlement of Disputes
SUMMARY:
The question the Court faces is: “Is the threat or use of nuclear weapons in any
circumstance permitted under the international law?”
The court was indecisive and had held a tie but was broken by the President who
voted for the illegality of nuclear weapons to international law.
I’m not so sure where the topic of settlement of disputes is in this case kasi
parang wala. Pero by my understanding this is how the Court settled the dispute
of the issue.
The first issue is the discreation of the Court to give an advisory opinion in a
dispute which is a minor issue. The real big issue is the legality of the use of
nuclear weapons.
For the first, the Court held that it never refused to give an advisory opinion. It
reasoned that the purpose of giving an advisory opinion is not to settle the
dispute but to give an advise or an opinion on the dispute. So the fact that one
party argued that the issue at hand didn’t rise to a specific dispute won’t be a
ground for the Court to not give an advisory opinion.
For the second, the Court tried to give advise on the dispute by referring to laws
and the UN charter which according to the Court, are vague or have not
mentioned expressly the use or threat of nuclear weapons. [By the way, using
and threatening nuclear weapons are two different things. “Use” is literally the
using of nuclear weapons against another State. “Threat” is when a State with
nuclear weapons uses the weapon as a threat to another.] Since there are no laws
expressly prohibiting the use or threat of nuclear weapons, the Court tried to use
opinio juris. But according to the Court, even though there are numerous treaties
regarding nuclear weapons, the treaties still don’t offer anything concrete as
there are divided opinions. The court, therefore, couldn’t find any opinio juris.
Finally, the court decided to use international humanitarian law.
According to international humanitarian law, it has been long prohibited in times
of war for the civilians to be caught or harmed or killed. There must be a
distinction between civilians and military men. It also prohibited weapons that
can’t distinguish civilians from military men (i.e. nuclear weapons).
In the end, the Court couldn’t give a decisive answer since it also acknowledged
the right of the States to self-defence or to survival. And since the question posed
is the use or trheat of nuclear weapons in any circumstance it couldn’t discount
the extreme circumstances where the State may resort to the use of nuclear
weapons in the name of survival.
DOCTRINE:
It reasoned that the purpose of giving an advisory opinion is not to settle the
dispute but to give an advise or an opinion on the dispute.
The Court resolved the disputed question by first using laws, then opinio juris,
and finally international humanitarian law.
FACTS:
343. The Secretary general of the UN officially communicated to the Registrar
the decision to submit a question to the Court for an advisory opinion.
344. The question posed is: “Is the threat or use of nuclear weapons in any
circumstance permitted under the international law?”
ISSUE/s:
77. WoN the threat or use of nuclear weapons in any circumstance is permitted
under the international law – it is NOT. The court said that it will be
contrary to the rules of international law applicable in armed conflict, and in
particular, the principles and rules of humanitarian law.
RULING: By seven votes to seven, by the President’s casting vote, it is contrary to
international law.
RATIO:
Discretion of the Court to give an advisory opinion in a dispute
351. The court may give an advisory opinion. The Court said that this is more
than an enabling provision. The court is given discretion as to whether ot
not it will give an advisory opinion that has been requested of it.
352. The Court had previously noted that, “The court’s opinion is given not to
the States but to the organ which is entitled to request it; the reply of the
Court itself represents its parcticipation in the activities of the Organization,
and in principle, shouldn’t be refused.”
353. In history, there has been no refusal to act upon a request for an advisory
opinion. In this case, several reasons were adduced to persuade the Court
that it should decline to render an opinion. Some states said that the
question put to court is vague and abstract. Appeared to mean by this that
thre exists no specific dispute on the subject matter.
354. To answer this argument, the Court said that it is important to distinguish
requirements governing contentious procedure and those applicable to
advisory opinions.
355. The purpose of advisory opinion is not to setlle—at least directly—the
disputes between States but to offer legal advice to the organs and
institutions requesting the opinion.
356. The fact that the question raised doesn’t relate toa specific dispute therefore
shoudlnt lead the Court to refuse giving an advice.
357. Other arguments such as:
a. that abstract nature of a question may lead to hypothetical or
 speculative delcarations outside the scope of its function
b. fact that the Generaly Assembly has not explained to the Court for
what purpose it seeks the advisory opinion
c. reply from the Court might adversely affect disarmemnt
negotuations
d. Court would be going beyond its judicial role and woud be taking
upon itself a law-making capacity
358. These arguments, the Court does not accept and concludes that it has
authority to deliver an opinion.
Nuclear Weapons issue
1. Note: The court uses “threat” and “use” of nuclear weapons. Threat is
when a State says that it has nuclear weapons to intimidate or to menace
(threaten) another State. Use is literally using nuclear weapons.
2. The Court notes that to correctly apply the present case the Charter law on
the use of force and the alw applicable in armed conflict, particularly the
humaniyarian law, it is imperative for the Court to take account of the
unique circumstances of nuclear weapons and its destrictive capacity.
3. Art 2, par 4 of the Charter, the use of force against the territorial integrity or
poliytical indepdence of another State or in any other manner inconsistent
with the purposes of the UN is prohibited.
4. Art 51 recognises the inherent right of individual or collective self-defence
if an armed attack occurs. A further lawful use of force is envisaged in Art
42 where the Security Council may take military enforcement measures in
conformity of the Charter.
5. These provisions do NOT refer to specific weapons. They apply to any use
of force, regardless of the weapons used. The charter neither expressly
prohibits nor permits the use of any specific weapon, including nuclear
weapons.
6. The entitlement to resort to self-defence is subject to conditions of necessity
and proportionality. This is a rule well established in customary
international law.
7. The proportionality principle may not in itself exclude the use of nuclear
weapons in self-defence in all circumstances. But a use of force that is
proportionate under the law of self-defence must, to be lawful, also meet
requirements of the law applicable in armed conflict, which comprise in
particular the principles and rules of humanitarian law.
8. The Court notes that the nature of nuclear weapons and the profound risks
are considerations to be borne in mind by States believing that they can
exercise nuclear weapons in response as self-defence.
9. The notions of “threat” and “use” of force under Art 2, par 4 of the Charter
stand together in the sense that if the use of force is illegal, the trheat to use
such force will likewise be illegal.
10. Basically, to be lawful, the readiness of the State to use force must be a use
of force that conforms to the Charter.
11. Having dealt with Charter provisions, the Court truned to the law applicable
in situations of armed conflict. The Court noted that international customary
and treaty law do NOT contain any specific prescription authorisng the
threat or use of nuclear weapons or any other weapon. Nor is there any
principle or rule of international law which would make the legality of the
threat or use of nuclear weapons or of any other weapons.
12. State practice shows that the illegality of the use of certain weapons does
not result from an absence of authorization but is formulated in terms of
prohibition.
13. To the Court, ut doesn’t seem that the use of nuclear weapons can be
ragrded as specifically prohibited in the basis of certain provisions of the
Scond Hague Declaration or the Geneva Protocol. But rather, what is
usually done is to expressly prohibit the use of weapons of mass destruction
through specific instruments (treaties).
14. The members of the international community are divided on the matter of
whether non-recourse to nuclear weapons over the past 50years constitutes
the expression of an opinio juris. The court says that it doesn’t consider
itself able to find that there is any opinio juris.
15. Not having found a conventuional rule of general scope, nor a customary
rule specifically proscribing the threat or use of nuclear weapon per se. So
the Court considers the illegality or legality of nuclear weapons in light of
principles and rules of humanitarian law.
16. Laws and customs of war later became termed to be “internatiomal
humanitarian law.”
a. The first is aimed at the protection of civilian population and
civilian objects and establishes the disctinction between
combatants and non-combatants. States must NEVEr make
civilians object of attach and never use weapons that are incapable
of distinguishing between civilian and military.
b. For the second, it is prohibited to cause unnecessary suffering to
combatants. Porhibited to use weapons causing them harm or
uselessly aggravating their suffering. States do NOT have
unlimited freedom of choice of means in the weapons they use.
17. The Court noted that nuclear weapns were invented after the principles and
rules of humanitarian law applicable in armed conflict. The conferences of
1949 and 1974-1977 left these weapons aside. However, it cannot be
concluded that the established principles and rules did not apply to nuclear
weapons. Such a conclusion would be incompatible with the intrinsically
humanitarian character of the legal principles in question which permeates
the entire law of armed conflict an applies to all forms of warfare and to all
kinds of weapons, those of the past, those of the present and those of the
future.
18. The court, in the end, said that it can’t reach a definitive conclusion as to the
legality or illegality of the use of nuclear weapons by a State in extreme
circumstance of self-defence in which its very survival would be at stake.
a. Basically, the Court said that it is illegal if you use it. But if in
extreme circumstances such as for self-defence, it can’t make a
 definitive decision.
b. The Court couldn’t decide because for it, the characteristic of
nuclear weapons are so unique that in one hand, the use of such
horrible weapons of mass destruction is irreconcilable with laws
on armed conflict. Then in the other hand, it respects the right of
every state to survival which necessarily gives them the right to
resort to self defence.
c. But in the end, when the justices voted, there was a tie which the
President broke by voting for the illegality of the use of nuclear
weapons.
 008 US vs. YUNIS (VARGAS) underway. The airplane departed from Beirut with all passengers, including
February 12, 1988 | Parker, J. | Settlement of Disputes the Americans, held hostage.
3. After landing, the hostages were directed to exit the aircraft. The hijackers
then called an impromptu press conference and the defendant Yunis
PETITIONER: J. Ramsey Johnson, Karen A. Morrissette, Jennifer Gold, Asst. U.S.
allegedly read a speech, which he originally intended to give to the
Attys., Washington, D.C.
delegates of the Arab League Conference then meeting in Tunis. Following
RESPONDENTS: Francis D. Carter, Turner and Carter, Washington, D.C.
the speech, the hijackers blew up the Jordanian aircraft, quickly left the
SUMMARY: US charged Yunis, a citizen and resident of Lebanon, for his alleged
scene and vanished into the Beirut landscape.
involvement in the hijacking of a Jordanian civilian aircraft in Middle East. He was
4. Between June 11 and 12, 1985, the aircraft never landed on or flew over
charged with piracy and hijacking. Yunis moved to dismiss the indictment on
American space. Its flightpath was limited to an area within and around the
grounds that the US court lacks subject matter jurisdiction under general principles
Mediterranean Sea. Based on the absence of any nexus to United States
of international law and the stated provisions of the US Code. The motion is
territory, Yunis has moved to dismiss the entire indictment, arguing that no
predicated on grounds that Jordanian aircraft never flew over the US airspace and
United States federal court has jurisdiction to prosecute a foreign national
had no contact whatsoever with US territory. Without such connection, Yunis'
for crimes committed in foreign airspace and on foreign soil. He further
counsel argues that this Court has no basis for asserting either subject matter or
claims that the presence of the American nationals on board the aircraft is
personal jurisdiction. There is no dispute that the only nexus to the United States
an insufficient basis for exercising jurisdiction under principles of
was the presence of several American nationals on board the flight. The airplane
international law.
was registered in Jordan, flew the Jordanian flag and never landed on American soil
5. There is no dispute that the only nexus to the United States was the
or flew over American airspace. The issue is WON there is basis for jurisdiction
presence of several American nationals on board the flight. The airplane
under international law - Yes. The federal government may prosecute an airline
was registered in Jordan, flew the Jordanian flag and never landed on
hijacker even if the hijacking’s only connection with the United States was the
American soil or flew over American airspace.
presence of Americans on board the plane. The Universal and Passive Personality
6. The parties agree that there are five traditional bases 28of jurisdiction over
principles, together, provide ample grounds for this Court to assert jurisdiction
extraterritorial crimes under international law. The Universal and the
over Yunis. In fact, reliance on both strengthens the basis for asserting
Passive Personal principle appear to offer potential bases for asserting
jurisdiction. Not only is the United States acting on behalf of the world
jurisdiction over the hostage-taking and aircraft piracy charges against
community to punish alleged offenders of crimes that threaten the very
Yunis. However, his counsel argues that the Universal principle is not
foundations of world order, but the United States has its own interest in
applicable because neither hostage-taking nor aircraft piracy are heinous
protecting its nationals.
crimes encompassed by the doctrine. He urges further, that the United
DOCTRINE: The Universal principle recognizes that certain offenses are so
States does not recognize Passive Personal as a legitimate source of
heinous and so widely condemned that "any state if it captures the offender may
prosecute and punish that person on behalf of the world community regardless of the
nationality of the offender or victim or where the crime was committed." On the
other hand, the Passive Personal principle authorizes states to assert jurisdiction over 28 Territorial, wherein jurisdiction is based on the place where the
offenses committed against their citizens abroad. It recognizes that each state has a
legitimate interest in protecting the safety of its citizens when they journey outside offense is committed;
national boundaries. National, wherein jurisdiction is based on the nationality of the
offender;
FACTS: Protective, wherein jurisdiction is based on whether the national
1. The US charged Yunis, a resident and citizen of Lebanon, for his alleged interest is injured;
involvement in the hijacking of a Jordanian civilian aircraft in the Middle
East. Two offenses involved: piracy and hijacking.
Universal, wherein jurisdiction is conferred in any forum that obtains
2. On the morning of June 11, the aircraft was positioned at the Beirut physical custody of the perpetuator of certain offenses considered
International Airport, Beirut, Lebanon, for a scheduled departure to particularly heinous and harmful to humanity
Amman, Jordan. As the 50-60 passengers boarded, several Arab men, one Passive personal, wherein jurisdiction is based on the nationality of
allegedly the defendant, stormed the plane and ordered the pilot to fly to
Tunis, Tunisia where a meeting of the Arab League Conference was the victim.
 jurisdiction. The government flatly disagrees and maintains that jurisdiction
is appropriate under both.
ISSUE/s:
1. WON there is basis for jurisdiction under international law - Yes. The
federal government may prosecute an airline hijacker even if the hijacking’s
only connection with the United States was the presence of Americans on
board the plane. The Universal and Passive Personality principles,
together, provide ample grounds for this Court to assert jurisdiction
over Yunis. In fact, reliance on both strengthens the basis for asserting
jurisdiction. Not only is the United States acting on behalf of the world
community to punish alleged offenders of crimes that threaten the very
foundations of world order, but the United States has its own interest in
protecting its nationals.
RULING: That defendant's Motion to Dismiss the Indictment and to Dismiss
the Defendant from the Jurisdiction of the Court is granted as to that portion of
Count I as stated above and Counts III, IV, and V charging defendant with
violation of 18 U.S.C. § 32(a). The Motion to Dismiss as to the remainder of
Count I and Counts II, VI, VII, VIII, and IX, is denied.
RATIO:
1. The federal government may prosecute an airline hijacker even if the
hijacking’s only connection with the United States was the presence of
Americans on board the plane.
2. There must be jurisdiction under both international and domestic law in
order for jurisdiction to exist in the situation of this case. International law
relates to the power of Congress to have extraterritorial application of its
law; domestic law relates to its intent to do so.
3. International law recognizes several bases for a nation to give
extraterritorial application to its laws.
UNIVERSAL PRINCIPLE
4. The Universal principle recognizes that certain offenses are so heinous and
so widely condemned that "any state if it captures the offender may
prosecute and punish that person on behalf of the world community
regardless of the nationality of the offender or victim or where the crime
was committed." The crucial question for purposes of defendant's motion is
how crimes are classified as "heinous" and whether aircraft piracy and
hostage taking fit into this category.
5. Those crimes that are condemned by the world community and subject to
prosecution under the Universal principal are often a matter of international
conventions or treaties.
6. A majority of states in the world community including Lebanon, have
signed three treaties condemning aircraft piracy: The Tokyo Convention,
The Hague Convention, and The Montreal Convention.
7. In light of the global efforts to punish aircraft piracy and hostage taking,
international legal scholars unanimously agree that these crimes fit within
the category of heinous crimes for purposes of asserting universal
jurisdiction.
8. In The Restatement (Revised) of Foreign Relations Law of the United
States, a source heavily relied upon by the defendant, aircraft hijacking is
specifically identified as a universal crime over which all states should
exercise jurisdiction.
PASSIVE PERSONAL PRINCIPLE
9. This principle authorizes states to assert jurisdiction over offenses
committed against their citizens abroad. It recognizes that each state has a
legitimate interest in protecting the safety of its citizens when they journey
outside national boundaries. Because American nationals were on board the
Jordanian aircraft, the government contends that the Court may exercise
jurisdiction over Yunis under this principle. Defendant argues that this
theory of jurisdiction is neither recognized by the international community
nor the United States and is an insufficient basis for sustaining jurisdiction
over Yunis.
10. The international community explicitly approved of the principle as a basis
for asserting jurisdiction over hostage takers. The Hostage Taking
Convention set forth certain mandatory sources of jurisdiction. But it also
gave each signatory country discretion to exercise extraterritorial
jurisdiction when the offense was committed "with respect to a hostage who
is a national of that state if that state considers it appropriate."
11. In the past, the United States has protested any assertion of such jurisdiction
for fear that it could lead to indefinite criminal liability for its own citizens.
This objection was based on the belief that foreigners visiting the United
States should comply with our laws and should not be permitted to carry
their laws with them. Otherwise Americans would face criminal
prosecutions for actions unknown to them as illegal.
12. However, in the most recent draft of the Restatement, the authors noted that
the theory "has been increasingly accepted when applied to terrorist and
other organized attacks on a state's nationals by reason of their nationality,
or to assassinations of a state's ambassadors, or government officials."
13. The authors retreated from their wholesale rejection of the principle,
recognizing that perpetrators of crimes unanimously condemned by
members of the international community, should be aware of the illegality
of their actions. Therefore, qualified application of the doctrine to serious
and universally condemned crimes will not raise the specter of unlimited
and unexpected criminal liability.
DOMESTIC LAW
14. International law having been disposed of on this issue, domestic law must
now be discussed. The Hostage Taking Law, at subsection (b)(1)(A), clearly
includes an offender that has seized or detained a U.S. citizen. The language
could not be plainer.
15. With regard to the Destruction of Aircraft Act and the Federal Aviation Act,
18 U.S.C. § 31, that the law was intended to apply only when the aircraft in
 question either began or ended its flight in the United States. Since the
flight in question did not do this, the Act does not apply.
009 Interpretation of Article 3, Paragraph 2 of the Treaty of Lausanne,
Advisory Opinion, PCIJ Reports, Series B, No. 12 (Vicencio)
Nov. 21, 1925 | PCIJ | Settlement of Disputes
SUMMARY: The British and Turkish Delegations during the Conference of
Lausanne, had agreed in the course of private negotiations that any disputes in
relation to the frontier between Turkey and Iraq shall be referred to the Council of
the Leage of Nations. They embodied this in Art. 3, Par. 2 of the Treaty of Lausanne.
The present case arose because the Leage of Nations sought an advisory opinion
from the Permanent Court of International Justice regarding the task vested upon it
by the parties. The issues raised (and the subsequent rulings of the PCIJ) are the
following:
Whether the nature of the decision is an arbitral ward, recommendation or simple
mediation? Art. 13 of the Covenant of the League of Nations refers to a more limited
conception of arbitration. The Council, whose first duty is to dissipate or settle
political disputes, is never considered in the Covenant as exercising the functions of
arbitrator. They only make recommendations. But, there is nothing to prevent the
Parties from accepting obligations and from conferring on the Council powers wider
than those resulting from the strict terms of Art. 15, and in particular from
substituting, by an agreement entered into in advance, for the Council's power to
make a mere recommendation, the power to give a decision which, by virtue of their
previous consent, compulsorily settles the dispute. Since the object of Article 3,
paragraph 2, of the Treaty of Lausanne is, as has been shown above, to bring about a
definitive and binding settlement of the frontier, it follows that the decision which
the Council has to take under that article cannot be regarded as a mere
recommendation
Whether the decision of the Council of the League of Nations must be unanimous or
may be taken by a majority? Art. 5, par. 1, of the Covenant expressly says: “Except
where otherwise expressly provided in this Covenant or by the terms of the present
Treaty, decisions at any meeting of the Assembly or of the Council shall require the
agreement of all the Members of the League represented at the meeting.” No
exceptions to this principle are made other than those provided for in the Covenant
itself and in the Peace Treaties of which it constitutes the first part. The Treaty of
Lausanne is not one of these Treaties. No one denies that the Council can undertake
to give decisions by a majority in specific cases, if express provision is made for this
power by treaty stipulations.
Whether or not the representatives of the interested Parties may take part in the vote?
The representatives will take part in the vote, for they form part of the Council and,
like the other representatives, they are entitled and are in duty bound to take part in
the deliberations of that body. However their votes not being counted in ascertaining
whether there is unanimity.From a practical standpoint, to require that the
representatives of the Parties should accept the Council's decision would be
tantamount to giving them a right of veto enabling them to prevent any decision
being reached; this would hardly be in conformity with the intention manifested in
Article 3, paragraph 2, of the Treaty of Lausanne.
FACTS
345. (Disclaimer: this topic under the syllabus indicated a page in the PCIJ
reports to start on. Hence, all other facts before the indicated page were
skipped.)
346. The British and Turkish Delegations had agreed in the course of private
meetings and negotiations that the frontier between Turkey and Iraq shall be
laid down in friendly arrangement to be concluded between Turkey and
Great Britain within nine months from the coming into force of the present
Treaty.
347. In the event of no agreement being reached between the two Governments
within the time mentioned, the dispute shall be referred to the Council of
the League of Nations.
348. The Turkish and British Governments reciprocally undertake that, pending
the decision to be reached on the subject of the frontier, no military or other
movement shall take place which might modify in any way the present state
of the territories of which the final fate will depend upon that decision.
349. The Council of the League of Nations, having been tasked of the question
of the frontier between Turkey and Iraq by application of Article 3,
paragraph 2, of the Treaty of Lausanne, decides, for the purpose of
clarifying certain points of law, to request the Permanent Court of
International Justice to give an advisory opinion on the following questions:
a. What is the character of the decision to be taken by the Council in
virtue of Article 3, paragraph 2, of the Treaty of Lausanne
i. Is it an arbitral award, a recommendation or a simple
mediation ?
b. Must the decision be unanimous or may it be taken by a majority?
i. May the representatives of the interested Parties take part
in the vote ?
350. Article 3 of the Treaty of Lausanne states:
a. (Par. 1) The frontier between Turkey and Iraq shall be laid down in
friendly arrangement to be concluded between Turkey and Great
Britain within nine months.
b. (Par. 2) In the event of no agreement being reached between
the two Governments within the time mentioned, the dispute
shall be referred to the Council of the League of Nations
c. (Par. 3) The Turkish and British Governments reciprocally
undertake that, pending the decision to be reached on the subject of
the frontier, no military or other movement shall take place which
might modify in any way the present state of the territories of
 which the final fate will depend upon that decision.
ISSUE/s:
78. WoN the nature of the decision is an arbitral award, recommendation or
simple mediation? – Arbitral award because the parties bound themselves
expressly.
79. WoN the decision of the League must be unanimous or by majority –
Unanimous, as expressly reuired by Art. 5
80. WoN the representatives of the interested parties make take part in the vote
– As members of the Council they can, but their vots should not be
considered in ascertaining unanimity.
RULING: The Court is of opinion (1) that the "decision to be taken" by the Council
of the League of Nations in virtue of Article 3, paragraph 2, of the Treaty of
Lausanne, will be binding on the Parties and will constitute a definitive
determination of the frontier between Turkey and Iraq; (2) that the "decision to be
taken" must be taken by a unanimous vote, the representatives of the Parties taking
part in the voting, but their votes not being counted in ascertaining whether there is
unanimity
RATIO:
Whether the nature of the decision is an arbitral award, recommendation or simple
mediation?
1. The Court, by an examination of the scope of Article 3, paragraph 2, of the
Treaty of Lausanne, has thus arrived at the conclusion that that clause is
designed to provide for a definitive settlement of the frontier.
2. It will now proceed more closely to consider, with reference to the
explanatory phrase appended to the first of the questions put, what the
nature of this decision may be.
3. If the word "arbitration" is taken in a wide sense, characterized simply by
the binding force of the pronouncement made by a third Party to whom the
interested Parties have had recourse, it may well be said that the decision in
question is an "arbitral award".
4. The Covenant of the League of Nations, while it in no way restricts the
liberty of the Parties to entrust any dispute whatever that may arise between
them to arbitration, refers in Article 13 to the more limited conception of
arbitration; and the Council, whose first duty is to dissipate or settle
political disputes, is never considered in the Covenant as exercising the
functions of arbitrator within the meaning of that article.
5. Nevertheless, the Court holds that this fact does not prevent the
Council from being called upon, by the mutual consent of the Parties,
to give a definitive and binding decision in a particular dispute.
6. Though it is true that the powers of the Council, in regard to the settlement
of disputes, are dealt with in Article 15 of the Covenant, and that, under
that article, the Council can only make recommendations, which, even
when made unanimously, do not of necessity settle the dispute, that
article only sets out the minimum obligations which are imposed upon
States and the minimum corresponding powers of the Council.
7. There is nothing to prevent the Parties from accepting obligations and
from conferring on the Council powers wider than those resulting from
the strict terms of Article 15, and in particular from substituting, by an
agreement entered into in advance, for the Council's power to make a
mere recommendation, the power to give a decision which, by virtue of
their previous consent, compulsorily settles the dispute.
8. Nor are precedents lacking of cases in which the Parties have undertaken
beforehand to accept a recommendation by the Council, and this, in effect,
is tantamount to entrusting it with the power of decision.
a. Thus, in the Upper Silesian question, which, moreover, was alluded to by
the British representative at the Council meeting of September 19th, 1925,
the Powers represented on the Supreme Council invited "the
recommendation" of the Council of the League of Nations "as to the line"
to be laid down and "solemnly" undertook "to accept the solution
recommended by the Council of the League of Nations"; the latter in its
turn adopted "a recommendation" which it transmitted to the President of
the Supreme Council.
b. Similarly, in the Protocol of Venice of October 13th, 1921, concerning the
delimitation of the frontier between Hungary and Austria, the latter Power
undertook to accept "the decision recommended by the Council of the
League of Nations" (Treaty Series of the League of Nations, Vol. IX, p.
204).
9. Since the object of Article 3, paragraph 2, of the Treaty of Lausanne is,
as has been shown above, to bring about a definitive and binding
settlement of the frontier, it follows that the decision which the Council
has to take under that article cannot be regarded as a mere
recommendation within the meaning of Article 15 of the Covenant.
10. Such recommendation, in fact, would not settle the dispute ; moreover,
it might result in placing in a position of inferiority a State which was
not in possession of the territory which would be allotted to it by the
frontier recommended; for, in the event of the Council's recommendation
being in its favour, this State would not have an actual right to insist upon
the cession of the territory in question.
11. But the fact that the "decision to be reached" by the Council under Article 3
of the Treaty of Lausanne cannot be described as a recommendation within
the meaning of Article 15 of the Covenant, does not imply that the
applicability of the latter article in the present case is excluded.
12. For the various and more extensive powers conferred by the Parties in this
case on the Council merely complete the functions which it normally
possesses under Article 15.
13. In agreeing to refer the dispute to the Council of the League of Nations, the
Parties certainly did not lose sight of the fact that the powers of mediation
and conciliation of the Council form an essential part of the functions of
that body. If such procedure fails, the Council will make use of its power of
decision. And, in actual fact, it would appear that the Council's efforts
to settle the dispute in question have hitherto been made on these lines.
Whether the decision of the Council of the League of Nations, to which the matter
was referred, under Article 3, paragraph 2, of the Treaty of Lausanne, must be
unanimous or may be taken by a majority, and whether the representatives of the
interested Parties may take part in the vote.
14. In order to reply to this question it should be observed in the first place that
Article 3, paragraph 2, of the Treaty of Lausanne refers to the Council of the
League of Nations, that is to say, to the Council with the organization and
functions conferred upon it by the Covenant. The dispute has not been
referred to one or more persons as such, but to the Council.
15. Now the Council, in accordance with Article 4 of the Covenant and the
Resolution adopted by the Council on September 21st, 1922, which was
approved by the Assembly on the 25th of the same month, consists of
representatives appointed by four Great Powers, who are entitled to
permanent seats upon it, and by six other Members selected by the
Assembly. It may also include representatives of States invited to sit at the
Council table by reason of the interest which they may have in some
question upon its agenda
16. It is under this provision that in the present case the Council itself has
invited a representative of Turkey to sit with it.
17. It is, therefore, composed of representatives of Members, that is to say, of
persons delegated by their respective Governments, from whom they
receive instructions and whose responsibility they engage.
18. In a body constituted in this way, whose mission is to deal with any
matter "within the sphere of action of the League or affecting the peace
of the world", observance of the rule of unanimity is naturally and even
necessarily indicated.
19. Only if the decisions of the Council have the support of the unanimous
consent of the Powers composing it, will they possess the degree of
authority which they must have : the very prestige of the League might be
imperilled if it were admitted, in the absence of an express provision to
that effect, that decisions on important questions could be taken by a
majority.
20. Moreover, it is hardly conceivable that resolutions on questions
affecting the peace of the world could be adopted against the will of
those amongst the Members of the Council who, although in a minority,
would, by reason of their political position, have to bear the larger
share of the responsibilities and consequences ensuing therefrom.
21. Again, the rule of unanimity, which is also in accordance with the
unvarying tradition of all diplomatic meetings or conferences, is
explicitly laid down by Article 5, paragraph 1, of the Covenant in the
following terms:
a. "Except where otherwise expressly provided in this Covenant or by
the terms of the present Treaty, decisions at any meeting of the
Assembly or of the Council shall require the agreement of all
the Members of the League represented at the meeting."
22. No exceptions to this principle are made other than those provided for
in the Covenant itself and in the Peace Treaties of which it constitutes
the first part. The Treaty of Lausanne is not one of these Treaties.
23. As regards the exceptions contained in the Covenant, it is clear that the
present case does not fall within the scope of the second paragraph of
Article 5 (questions of procedure).
24. In the absence therefore of an express provision to the contrary in
Article 3, paragraph" 2, of the Treaty of Lausanne, the rule of
unanimity applies in regard to the question before the Council.
25. The representative of the British Government has contended that the clause
in Article 5 of the Covenant only contemplates the exercise of the powers
granted in the Covenant itself. The Court cannot accept this view. Article 5
states a general principle which only admits of exceptions which are
expressly provided for, and this principle, as has already been stated, may
be regarded as the rule natural to a body such as the Council of the League
of Nations.
26. The fact that the present case concerns the exercise of a power outside the
normal province of the Council, clearly cannot be used as an argument for
the diminution of the safeguards with which, in the Covenant, it was felt
necessary to surround the Council's decisions.
27. On the other hand, no one denies that the Council can undertake to
give decisions by a majority in specific cases, if express provision is
made for this power by treaty stipulations. That this is the case is
confirmed by, amongst other things, Articles 44 and 107 of the Treaty
of Lausanne, which have been cited on one side and the other in
support of their respective contentions. The Court therefore regards these
articles as tending rather to confirm the view which it has taken.
28. In support of the contention that the decision may be taken by a majority,
the principle generally accepted in the case of arbitral tribunals, in
accordance with which such tribunals, as a rule, decide by a majority, has
also been invoked ; and it has been argued that the main reason for the
application of this principle is that it would often prove impossible to obtain
any decision if unanimity were required.
29. The Court has already explained why it cannot admit arguments and
principles drawn from the theory and practice of arbitration in the limited
sense of the term.
30. In particular, it should be observed that though certain arguments used by
the representative of the British Government might be regarded as well-
founded in the case of arbitrators appointed ad hoc and not forming a
permanent body, they do not, on the other hand, apply in a case where the
Parties have had recourse to a body already constituted and having its own
rules of organization and procedure. Unless a contrary intention has been
expressed, the interested Parties are in such cases held to have accepted
such rules.
31. Unanimity, therefore, is required for the decision to be taken by the
Council of the League of Nations, in virtue of Article 3, paragraph 2, of
the Treaty of Lausanne, with a view to the determination of the frontier
 between Turkey and Iraq. the Council and, like the other representatives, they are entitled and
are in duty bound to take part in the deliberations of that body.
Whether or not the representatives of the interested Parties may take part in the vote 43. The terms of paragraphs 6 and 7 of Article 15 of the Covenant and of
32. The very general rule laid down in Article 5 of the Covenant does not the new clause to be inserted in Article 16, clearly show that in the cases
specially contemplate the case of an actual dispute which has been laid therein contemplated, the representatives of the Parties may take part
before the Council. in the voting, and that it is only for the purpose of determining whether
33. On the other hand, this contingency is dealt with in Article 15, paragraphs unanimous agreement has been reached that their votes are not
бand 7, which, whilst making the limited binding effect of counted.
recommendations dependent on unanimity, explicitly state that the Council's 44. There is nothing to justify a further derogation from the essential principles
unanimous report need only be agreed to by the Members thereof other than of unanimity and of the equal rights of Members.
the representatives of the Parties. The same principle is applied in the cases
contemplated in paragraph 4 of Article 16 of the Covenant and in the first of
the three paragraphs which, in accordance with a Resolution of the Second
Assembly, are to be inserted between the first and second paragraphs of that
article.
34. It follows from the foregoing that, according to the Covenant itself, in
certain cases and more particularly in the case of the settlement of a dispute,
the rule of unanimity is applicable, subject to the limitation that the votes
cast by representatives of the interested Parties do not affect the required
unanimity.
35. The Court is of opinion that it is this conception of the rule of unanimity
which must be applied in the dispute before the Council.
36. It is hardly open to doubt that in no circumstances is it possible to be
satisfied with less than this conception of unanimity, for, if such unanimity
is necessary in order to endow a recommendation with the limited effects
contemplated in paragraph 6 of Article 15 of the Covenant, it must a fortiori
be so when a binding decision has to be taken.
37. The question which arises, therefore, is solely whether such unanimity is
sufficient or whether the representatives of the Parties must also accept the
decision.
38. The principle laid down by the Covenant in paragraphs 6 and 7 of Article
15, seems to meet the requirements of a case such as that now before the
Council, just as well as the circumstances contemplated in that article. The
well-known rule that no one can be judge in his own suit holds good.
39. From a practical standpoint, to require that the representatives of the
Parties should accept the Council's decision would be tantamount to
giving them a right of veto enabling them to prevent any decision being
reached; this would hardly be in conformity with the intention
manifested in Article 3, paragraph 2, of the Treaty of Lausanne.
40. Lastly, it may perhaps be well to observe that since the Council consists of
representatives of States or Members, the legal position of the
representatives of the Parties upon the Council is not comparable to that of
national arbitrators upon courts of arbitration.
41. The votes of the representatives of the Parties are not, therefore, to be taken
into account in ascertaining whether there is unanimity.
42. But the representatives will take part in the vote, for they form part of
 010 INTERHANDEL CASE (Villavicencio)
March 21, 1959 | Basdevant, J. | Settlement of Disputes
PETITIONER: SWITZERLAND
RESPONDENTS: USA
SUMMARY: In 1942 the Government of the United States vested almost all the
shares of the General Aniline and Film Corporation (GAF), a company
incorporated in the United States, on the ground that those shares, which were
owned by Interhandel, a company registered in Basel, belonged in reality to I.G.
Farbenindustrie of Frankfurt, or that GAF was in one way or another controlled
by the German company. On 1 October 1957, Switzerland applied to the Court
for a declaration that the United States was under an obligation to restore the
vested assets to Interhandel or, alternatively, that the dispute on the matter
between Switzerland and the United States was one fit for submission for
judicial settlement, arbitration or conciliation. Two days later Switzerland filed a
request for the indication of provisional measures to the effect that the Court
should call upon the United States not to part with the assets in question so long
as proceedings were pending before the Court. On 24 October 1957, the Court
made an Order noting that, in the light of the information furnished, there
appeared to be no need for provisional measures. The United States raised
preliminary objections to the Court’s jurisdiction, and in a Judgment delivered
on 21 March 1959 the Court found the Swiss application inadmissible, because
the Swiss Government had not exhausted the remedies available to it in the
United States courts.
DOCTRINE: Swiss Government appears as having adopted the cause of its
national for the purpose of securing the restitution of the vested assets and that,
this is one of the very cases which give rise to the applicationof the rule of the
exhaustion of local remedies
FACTS:
1. In 1942, the Government of the United States, under the Trading with the
Enemy Act, vested almost all of the shares of the General Aniline and Film
Corporation GAF, a company incorporated in the United States, on the ground
that those shares, owned by Interhandel, in reality belonged to the I.G. Falrben
Company of Frankfurt or that the GAF was in one way or another controlled by
that enemy company.
2. It is not disputed that until 1940 I.G. Farben controlled the GAF through the I.G.
Chemie Company of Basle.
3. However, according to the contention of the Swiss Government, the links
between the German company and the Swiss company were finally severed in
1940
4. The Swiss company adopted the name Interhandel and the largest item in its
assets was its participation in the GAF
5. For its part, the Government of the United States, considering that Interhandel
was still controlled by I.G. Farben, continued to seek evidence of such control.
6. In these circumstances, the Swiss Federal Authorities ordered the Swiss
Compensation Office provisionally to block the assets of Interhandel.
7. Switzerland undertook to pursue its investigations and to liquidate German
property in Switzerland.
8. the Government of the United States was to unblock Swiss assets in the United
States
9. Finally, in case differences of opinion arose with regard to the application or
interpretation of the Accord which could not be settled in any other way,
recourse was to be had toarbitration.
10. After the conclusion of the Washington Accord, discussions with regard to
Interhandel were continued without reaching any conclusion.
11. the Swiss Legation in Washington invoked this decision and the Washington
Accord to request the United States to restore to Interhandel the property which
had been vested in the United States
12. the Department of State rejected this request, con- tending that the decision of
the Swiss Authority of Review did not affect the assets vested in the United
States.
13. Interhandel, relying upon the provisions of the Trading with the Enemy Act,
instituted proceedings in the United States courts. Up to 1957, these proceedings
made little progress on the merits.
14. it was said that Interhandel had finally failed in its suit in the United States
courts. It was then that the Swiss Government addressed to the Court its
Application instituting the proceedings.
15. The Court finds that the subject of the claim is expressed essentially in two
propositions: the Court is asked to adjudge and declare, as a principal
submission, that the Government of the United States is under an obligation to
restore the assets of Interhandel and, as an alternative submission, that the
United States is under an obligation to submit the dispute to arbitration or to a
conciliatilon procedure
ISSUE/s:
81. WoN US is obliged to submit the dispute to arbitration or concilation– NO,
because the Swiss application failed to exhaust local remedies in the US
Courts.
RULING: The Interhandel Case, between Switzerland and the United States of
America, was submitted to the Court by an Application of the Swiss Government on
Ocbober 2nd, 1957, relating to a dispute which had arisen with regard to the claim by
Switzerland to the restitution by the United States of America of the assets of the
Interhandel Company. The Application invoked Article 36, paragraph 2, of the
Statute of the Court and the acceptance of the compulsory jurisdiction of the Court
by the United States and Switzerland. For its part, the Government of the United
Sitates submitted preliminary objections to the jurisdiction of the Court.
The Court, upholding one of these objections, found the Swiss Application
inadmissible.

RATIO:
359. An examination dixuments reveals that it was in the note of the swiss legation
inWashington that a request for the return to Interhandlel of the assets vested in
the united states was formulatedby switzerland for the first time
360. The obligation of the Government of the United States to submit to arbitration or
conciliation. This part of the dispute can only have arisen subsequently to that
relating to the restitution of Interhandel's assets in the United States,
361. In fact, the Swiss Government put forward proposal for the first time in its Note
of August 9th, 1956, and the Government of the United States rejected it by its
Note of January 1lth, 1957.
362. as between United States and Switzerland the Court's jurisdiction should be:
limited to disputes arising after July 28th 1194
363. Since it has been found that the dispute concerning the obligation of the US to
agree to arbitration or concilialtion did not arise until 1957, this objection must
also be rejected SO far as the alternative Submission is concerned.
364. in proceedings based upon the Trading with the Enemy Act, the United States
courts are, it is contended, not in a position to adjudicate in accordance with the
rules of international law. But the decisions of the United States courts bear
witness to the fact that United States courts are competent to apply international
law in their decisions when necessary.
365. Finally, as the character of the principal Submission of Switzerland is that of a
claim for the implentation of the decision given on January 5th, 1948, by the
Swiss Authority of Review, which decision the Swiss Government regards as an
international judicial decision, there are, it is contended, no local remedies to
exhaust, for the injury has been caused directly to the State. (impt)
366. The Court confines itself to observing that this argument does not deprive the
dispute which has been referred to it of the character of a dispute in which the
Swiss Government appears as having adopted the cause of its national for the
purpose of securing the restitution of the vested assets and that, this is one of the
very cases which give rise to the applicationof the rule of the exhaustion of local
remedies. (impt)
367. The Court considers, moreover, that any distinction so far as the rule of the
exhaustion of local remedies is concerned between the various claims or
between the various tribunals is unfounded.
 011 NORWEGIAN LOANS CASE (Yap)
(FRANCE V. NORWAY)
July 6, 1957 | ICJ | Settlement of Disputes
PETITIONER: France (creditor)
RESPONDENTS: Norway (debtor)
SUMMARY: The Norwegian Government floated loans (loans wich do not
have have a fixed rate of interest over the life of the instrument) on the French
Market and eventually the French Government and 2 banks, wherein there was a
Gold Clause (that the borrower can only discharge the substance of his debt by
the payment of the gold value of the coupons on the date of payment and of the
gold value of the redeemed bonds on the date of repayment). Because of the
hostilities in Europe, the convertibility of notes of the Bank of Norway were
suspended and resumed from time to time, hence Norway enacted a “Law on
Pecuniary Obligations Whose Payment was Expressed in Gold” wherein the loan
would be paid in kroner (Norwegian Currency) based on its nominal value. The
French Government expressed to the Norwegian Government that such unilateral
declaration would not be applicable to foreign creditors. The French Government
proposed arbitration or ICJ settlement, but the Norwegian Government decline.
Hence, the French Government filed an Application for Settlement before the
ICJ. The Norwegian Government filed preliminary objections, one of which was
that there was a failure to exhaust national remedies on the part of the French
Government, but the case was eventually heard. The French Government
anchored jurisdiction on Art. 36 ¶2 which required Declarations from the States
to submit to the compulsory jurisdiction of the ICJ in certain legal disputes, on a
principle of reciprocity. Both Declarations issued were similar, except that the
French Declaration contained a reservation that “this declaration does not apply
to differences relating to matters which are essentially within the national
jurisdiction as understood by the Government of the French Republic.” The
Norwegian Government now claims that the ICJ has no jurisdiction over the
dispute which is a matter of municipal law, and that the banks have a distinct
personality from the State. The French Government contends that ICJ
jurisdiction was conferred by the Declarations, and that arbitration is proper
since France and Norway are parties to the Second Hague Convention of 1907
(Limitations of the Employment of Force for the Recovery of Contract Debts)
which obliges them to submit to arbitration for settlement of debts.
The pertinent issue is whether the ICJ has compulsory jurisdiction over the
settlement of the loans case.
The ICJ ruled in the negative. First, the French Declaration contained a
reservation that it shall not apply to matters which are essentially within the
national jurisdiction as understood by the Government of the French Republic.
By virtue of the condition of reciprocity provided by Art. 36, such reservation is
equally available to the Norwegian Government (Note that the Norwegian
Government had been consistent with such contention since it filed its
Preliminary Objections). Hence, the latter’s claim, that the matter is within the
domain of municipal law and not of international law, prevails. Second, the
French Government’s reliance on the Second Hague Convention of 1907 is
misplaced because its aim is not compulsory arbitration, but the prohibition on
resorting to force before arbitration has been tried.
DOCTRINE: ICJ Statute Art. 36 ¶2: The state parties to the present Statute may
at any time declare that they recognize as compulsory ipso facto and without
special agreement, in relation to any other state accepting the same obligation,
the jurisdiction of the Court in all legal disputes concerning: (1) the
interpretation of a treaty; (2) any question of international law; (3) the existence
of any fact which, if established, would constitute a breach of an international
obligation; and (4) the nature or extent of the reparation to be made for the
breach of an international obligation.
ICJ Statute Art. 36 ¶3: The declarations referred to above may be made
unconditionally or on condition of reciprocity on the part of several or certain
states, or for a certain time.
FACTS:
351. Transaction involved:
a. The (1) Norwegian Government (respondent) floated (loans wich
do not have have a fixed rate of interest over the life of the
instrument) 6 public loans on the French market and on other
foreign markets. The (2) Mortgage Bank of the Kingdom of
Norway and the (3) Norwegian Small Holding and Workers’
Housing Bank likewise floated various loans on the same markets.
b. The bonds contained a “gold clause” (that the borrower can only
discharge the substance of his debt by the payment of the gold
value of the coupons on the date of payment and of the gold value
of the redeemed bonds on the date of repayment) which varies in
form from bond to bond, but which the French Government
regards/contends as sufficient in the case of each bond. The
Norwegian Government disputes such “gold clause.”
352. Due to hostilities in Europe, the convertibility of notes of the Bank of
Norway was suspended and resumed from time to time, until it was finally
suspended and such is still in effect (by the time of this case).
353. During the years of instability, a “Law on Pecunary Obligations Whose
Payment was Expressed in Gold” was promulgated.
a. Where a debtor has lawfully agreed to pay in gold a pecuniary debt
in kroner (Norwegian currency), and where the creditor refuses to
accept payment on the basis of their nominal gold value = the
debtor may request a postponement of payment for such period as
the Bank is exempted from its obligation to redeem its notes in
accordance with their nominal value.
 b. Where a creditor withdraws his refusal = he shall be entitled to subject to ratification, I declare Norway recognizes as
require such payment only after 3 months from such notice of that I recognize as compulsory compulsory ipso facto and
withdrawal. ipso facto and without special without special agreement, in
c. During the period of postponement, interest shall be paid at the rate agreement, in relation to any relation to any other State
of 4% per annum, to be paid in banknotes in accordance with their other State accepting the same accepting the same obligation,
nominal value. obligation, that is on condition that is to say, on condition of
d. Prior notice of waive of the right to request postponement may be of reciprocity, the jurisdiction of reciprocity, the jurisdiction of
given only by the State, municipalities, the Bank of Norway and the ICJ…for all disputes which the ICJ.
the Banks which are fully guaranteed by the State (ex. Mortgage may arise, except of those with
Bank, Small Holding and Workers’ Housing Bank, and the Fishery regard to which the parties
Bank). may have agreed or may agree
354. Because of the passage of such law, the French Government send a Note to to have recourse to another
the Norwegian Government, referring to the loans floated. According to the method of peaceful settlement.
French Government, it seemed that such cannot be a valid “unilateral
declaration/decision that can be relied upon as against foreign creditors.” This declaration does not
355. The Ministry of Finance of the Norwegian Government sided with apply to differences relating to
Mortgage Bank, upholding the promulgated law. matters which are essentially
356. The French Government made proposals to submit to either: (1) within the national
Commission of Economic and Financial Experts; (2) Arbitration; or (3) jurisdiction as understood by
International Court of Justice (ICJ). However, the Norwegian Government the Government of the French
was not prepared to agree to such proposals on the ground that it could see Republic.
no reason for making an exception to the rule that international proceedings Jurisdiction The non-settlement of the The subject of the French
can only be instituted after the exhaustion of local remedies. foreign loans has given rise to a Government’s Application is
357. Hence, the French Government filed an Application Instituting Proceedings legal dispute of an international within the domain of municipal
In A Dispute with the Government of the Kingdom of Norway concerning character between the 2 states. law and not of international law.
the payment of various Norwegian Loans issued in France (hereinafter, (Art. 36 ¶2 b and c)
Application). The compulsory jurisdiction of
a. Norwegian Government filed preliminary objections, one of which That the 2 states have the ICJ in relation to France and
was that there was a failure to exhaust national remedies on the recognized the jurisdiction of Norway is restricted, by their
part of the French Government. the ICJ pursuant to the Declarations, to disputes
b. The Application, for jurisdiction, referred to Art. 36 ¶2: The state Declarations. concerning international law.
parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, Both states are parties to the Mortgage Bank and Small
in relation to any other state accepting the same obligation, the Second Hague Convention of Holding and Workers’ Housing
jurisdiction of the Court in all legal disputes concerning: (1) the 1907 (Limitations of the Bank have legal personalities
interpretation of a treaty; (2) any question of international law; (3) Employment of Force for the distinct from that of the State.
the existence of any fact which, if established, would constitute a Recovery of Contract Debts).
breach of an international obligation; and (4) the nature or extent Merits There is an express undertaking The claim of the French
of the reparation to be made for the breach of an international to pay in gold value interest and Government is unfounded.
obligation. amounts due on the redemption
c. Pursuant thereto, the 2 governments issued the corresponding of the bonds. Such express
Declarations: conditions as to performance
cannot be unilaterally modified
Arguments France Norway by the borrowing State without
Declaration On behalf of the Government of I declare on behalf of the negotiating with the holders.
the French Republic, and Norwegian Government that
ISSUE/s:
82. Whether the ICJ has jurisdiction over the settlement of the loans case – NO,
because of the reservation contained in the French declaration which
excluded from the jurisdiction of the Court differences relating to matters
which were “essentially within the national jurisdiction as understood by
the Government of the French Republic”.

RULING: The ICJ has NO JURISDICTION.

RATIO:
368. The present case has been brought before the ICJ on the basis of Art. 36 ¶2
of the ICJ Statute. Hence, the jurisdiction of the ICJ depends upon the
Declarations made by the parties “on condition of reciprocity” – which
means that jurisdiction is conferred upon the ICJ only to the extent to which
the Declarations coincide in conferring it.
369. A comparison between the 2 Declarations shows that the French
Declaration accepts the ICJ’s jurisdiction with narrower limits than the
Norwegian Declaration. Hence, the common will of the parties, which is the
basis of the ICJ’s jurisdiction, exists within these narrower limits indicated
by the French Declaration.
a. The ICJ has affirmed in the Phosphates in Morocco and Anglo-
Iranian Oil Company this method of defining the limits of ICJ’s
jurisdiction.
370. Franch has limited her acceptance of the compulsory jurisdiction of the
Court by excluding beforehand disputes “relating to matters which are
essentially within the national jurisdiction as understood by the Government
of the French Republic.”
a. Since the ICJ Statute requires reciprocity, Norway is equally
entitled to exempt from the compulsory jurisdiction of the Court
“disputes understood by Norway to be essentially within its
national jurisdiction.”
b. Such argument has been espoused by the Norwegian Government
all the way from the Preliminary Objections up to this point.
371. Lastly, the French Government’s reliance on the Second Hague Convention
of 1907 on the Limitations of the Employment of Force for the Recovery of
Contract Debts, wherein both states are parties, is misplaced as the
convention does not aim to introduce compulsory arbitration, but that there
must be no recourse to force before it has tried arbitration.
 012 Nicaragua vs. US (Adrias)
November 26, 1984 | ICJ | Jurisdiction and Admissibility
PETITIONER: Nicaragua
RESPONDENTS: United States of America
SUMMARY: This is a case concerning whether or not the ICJ has jurisdiction to
entertain the case brought before it by Nicaragua regarding the military and
paramilitary activities in and against Nicaragua. The Republic of Nicaragua filed
an application before the ICJ on April 9, 1984. The US argues that the ICJ has
no jurisdiction to try the case since Nicaragua never became a party to the
Statute of the Permanent Court and that its reservations to Article 36 be applied.
Nicaragua argues that ICJ has jurisdiction because of its 1929 Nicaragua
declaration and anyway it became an original Member of the UN, having ratified
the Charter and the Statute of the International Court of Justice on 1945. The
Court ruled that it had jurisdiction to entertain the case and the Application filed
by Nicaragua against the US was admissible because Article 36 and the 1956
Treaty of Friendship apply.
DOCTRINE: Article 36 par 2 and 5 of the Stature
FACTS:
1. This is a case concerning whether or not the ICJ has jurisdiction to entertain
the case brought before it by Nicaragua regarding the military and
paramilitary activities in and against Nicaragua.
2. The Republic of Nicaragua filed an application before the ICJ on April 9,
1984.
3. Previous events regarding the States’ compulsory jurisdiction to the ICJ of
both States
4. 1929 Nicaragua Declaration – Nicaragua made its declaration on Sept 14,
1929 as a member of the League of Nations and signed the Protocol of
Signature of the Statute of the Permanent Court of International Justice.
a. “On behalf of the Republic of Nincaragua I recofnize as
compulsory unconditionally the jurisdiction of the Permanent
Court of International Justice.”
b. The national authorities of Nicaragua ratified this declaration and
recognized the compulsory jurisdiction of the Permanent Court of
International Justice.
c. The Ministry of Foreign Affairs of Nicaragua sent a telegram of
the ratification of its nation to the Sec Gen of the League of
Nations.
d. However, the files of the League contain no record of an
instrument of ratification ever received.
e. Nevertheless, Nicaragua became an original Member of the UN,
having ratified the Charter and the Statute of the International
Court of Justice on 1945.
5. 1946 US Multilateral Treaty Reservation - United States made a
declaration that it will apply Article 36 with reservations. It is in force for a
period of 5 years and thereafter until the expiration of 6 months after, notice
may be given to terminate this declaration.
6. 1984 US Notification – US deposited with the Sec Gen of the UN a
notification referred to as the “the 1984 US notification” that the 1946
declaration will not apply to Central America and disputes shall be settled
in such manner as the parties to them may agree. This shall be take effect
and remain in force for two years to foster regional dispute settlement
process which seeks negotiated solution.
7. Nicaragua’s arguments: ICJ has jurisdiction and its Application is
admissible
a. Article 36 par 2 of the Statute of Court
2. The states parties to the present Statute may at any time declare
that they recognize as compulsory ipso facto and without special
agreement, in relation to any other state accepting the same
obligation, the jurisdiction of the Court in all legal disputes
concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would
constitute a breach of an international obligation;
d. the nature or extent of the reparation to be made for
the breach of an international obligation.
b. Article 36 par 5 of the Statute of Court
5. Declarations made under Article 36 of the Statute of the
Permanent Court of International Justice and which are still in
force shall be deemed, as between the parties to the present
Statute, to be acceptances of the compulsory jurisdiction of the
International Court of Justice for the period, which they still have
to run and in accordance with their terms.
c. Nicaragua is a state accepting the same obligations as the US
within the meaning of Article 36, paragraph 2 and 5.
d. Nicaragua argued that its conduct over 38 years constitutes consent
to be bound by the compulsory jurisdiction of the Court and that
the conduct of the US over the same period constitutes its
recognition of the validity of the 1929 declaration of Nicaragua.
e. The 1946 US declaration shows the acceptance of jurisdiction of
the Court by the US.
f. It also relied on the Treaty of Friendship, Commerce and
Navigation of January 1956 as basis of jurisdiction
8. US’ arguments: ICJ has no jurisdiction and Nicaragua’s Application is not
admissible
a. JURISDICTION:
i. Nicaragua never became a party to the Statute of the
Permanent Court.
 ii. Its 1929 declaration was not “still in force” within the
meaning of Article 36, paragraph 5 of the present Court.
iii. Nicaragua did not adduce evidence to show that the
telegram was ever despatched to Geneva.
iv. Nicaragua should not rely on the 1946 US declaration, but
should apply the 1984 US notification.
b. ADMISSIBILITY:
i. Nicaragua has failed to bring before the court parties
whose participation is necessary for their rights to be
protected for the adjudication of the issues in the
Application.
ii. Nicaragua is in effect requesting the Court to determine
the existence of a threat to peace, which is not within the
competence of the Security Council because it is
connected with Nicaragua’s complaint involving the use
of force.
iii. Nicaragua did not exhaust all established processes for the
resolution of conflicts occurring in Central America
ISSUE/s:
1. WoN the ICJ had jurisdiction to entertain the case brought before it by
Nicaragua regarding the military and paramilitary activities in and against
Nicaragua. – YES because Article 36 and the 1956 Treaty apply in this
case.
a. WoN Article 36, paragraph 2 and 5 is applicable to Nicaragua’s
1929 declaration? YES, due to the generality of statements and that
the US was also bound by its constant acquiescence that shows an
affirmation constituting a valid mode of manifestation of its intent
to recognize the compulsory jurisdiction and that it is under the
doctrine of estoppel.
b. WoN the 1946 US Multilateral Treaty taken into account
constitutes the necessary consent of the US to the jurisdiction of
the Court? – NO, the first condition regarding other treaty parties
be parties is inapplicable. Such other States have accepted
compulsory jurisdiction of the Court and are free any time to
submit their own Applications.
c. WoN the 1984 US notification can be applied to disregard the six
months notice clause? NO, because the 1984 cannot overide the
obligation of the US to submit to the jurisdiction of the Court vs.
Nicaragua.
d. WoN the 1956 Treaty of Friendship, Commerce and Navigation be
used as legal basis? YES, since both countries are signatories,
Article XXIV, paragraph 2 applies.
2. WoN Nicaragua’s Application brought before the ICJ is admissible – YES
because all of US grounds were refuted.
RULING: WHEREFORE, Court had jurisdiction to entertain the case and the
Application filed by Nicaragua against the US was admissible.
RATIO:
1929 Nicaragua Declaration
1. It is argued that it had not become binding under the Statute, since
Nicaragua had not deposited its instrument of ratification of the Protocol of
Signature and it was therefore not a party to the Statute.
2. However, it is not disputed that the 1929 declarration could have acquired
binding force having been made “unconditionally” and being valid for an
unlimited period.
3. Nevertheless, the Court took several conditions to rule whether or not the
1929 declaration had a binding force.
4. It ruled that Nicaragua was bound by its 1929 declaration due to the
generality of statements and that the US was also bound by its constant
acquiescence that shows an affirmation constituting a valid mode of
manifestation of its intent to recognize the compulsory jurisdiction and that
it is under the doctrine of estoppel.
5. Nevertheless, Nicaragua was deemed to have given its consent to the
transfer of its declaration to the International Court of Justice when it signed
and ratified the Charter, thus accepting the Statute and its Article 36,
paragraph 5.
1946 US Multilateral Treaty Reservation
1. WoN the 1946 US declaration constitutes the necessary consent of the US
to the jurisdiction of the Court in the present case, taking into account its
reservations.
a. US acceptance of the Court’s compulsory jurisdiction shall not
extend to disputes arising under a multilateral treaty, unless (1) all
parties to the treaty affected by the decision are also parties to the
case before the Court, or (2) the US specially agrees to the
jurisdiction.
2. In view of the above reservation, the Court may only exercise jurisdiction if
all treaty parties affected by a prospective decision of the Court are also
parties to the case.
3. Such other States have accepted compulsory jurisdiction of the Court and
are free any time to submit their own Applications.
4. There is no need for them to be parties to the case.
1984 US Notification
1. It is clear that if the 1984 US Notification were valid as against Nicaragua,
the Court would not have jurisdiction under Article 36 of the Statute.
2. The most important question is WoN the US would be free to disregard the
six months notice clause, freely by its own choice in spite of its obligation it
has entered into with other States which have made such declaration.
3. It is argued that Nicaragua’s 1929 Declaration has an undefined duration
 and is liable to immediate termination and that it has not accepted “the same
obligation,” so it cannot rely on the time-limit provision against it.
4. The US nevertheless cannot invoke the principle on reciprocity that since
the time-limit provision doesn’t apply to Nicaragua, it can do away with the
six months notice clause as well.
5. The Court ruled that it can invoke the six month notice clause because its
undertaking is an integral part of the instrument that contains it.
6. The 1984 cannot overide the obligation of the US to submit to the
jurisdiction of the Court vs. Nicaragua.
Treaty of Friendship, Commerce and Navigation of January 1956 as a basis
of jurisdiction
7. Both countries are signatories.
8. Article XXIV, paragraph 2, reads as follows:
"Any dispute beetwan the Parties as to the interpretation or application of
the present Treaty, not satisfactorily adjusted by diplomacy, shall be
submitted to the International Court of Justice, unless the Parties agree to
settlement by some other pacific means."
9. US contends that Nicaragua’s Application presents no claims of any
violation of this said treaty, so it cannot invoke this treaty.
10. The Court ruled that the fact that a State has not expressly referred, in
negotiations with another State, to a particular treaty as having been
violated by the conduct of that other State, does not debar the State from
invoking a compromissory clause that treaty.
Admissibility of Nicaragua’s Application
1. There exist no practice of international tribunals of an “indispensable
parties” rule.
2. The Security Council has functions of a political nature assigned to it, while
the Court exercises purely judicial functions. They can perform their
functions separately.
a. In the present case, the complaint of Nicaragua is not abour an on
going war of armed conflict between it and the United States, but
about a situation demanding the peaceful settlement of disputes, a
matter which is covered by Chapter vl ofthe Charter. Hence, it is
properly brought before the principal judicial organ of the United
Nations for peaceful settlement. This is not a case wfich can only
be dealt with by the Security Council in accordance with the
provisions ofChapter VII of the Charter.
3. There is nothing to compel it to decline to take cognizance of one aspect of
a dispute merely because the dispute has other aspects. And the fact that
negotiations are being actively pursued during the proceedings is not a legal
obstacle.
Separate Opinioin Judge Singh
1. Voted for the jurisdiction of the Court.
2. Treaty of Friendship has a stronger basis than Article 36 (2) and (5).
3. There was imperfect acceptance by Nicaragua.
Separate Opinioin Judge Ruda
1. Voted for the jurisdiction of the Court.
2. Article 36 (2) and (5) has a stronger basis than Treaty of Friendship
3. Parties have not fulfilled the conditions set forth in the Treaty and thus
cannot invoke it as a basis.
Separate Opinioin Judge Mosler
1. Voted for the jurisdiction of the Court.
2. Treaty of Friendship should be the only basis
Separate Opinioin Judge Oda
1. Voted for the jurisdiction of the Court.
2. Treaty of Friendship should be the only basis.
3. There is no ground concluding that Nicaragua can be hels to have legal
standing in the present proceedings on the basis of acceptance of the
Optional Clause.
Separate Opinioin Judge Ago
1. Voted for the jurisdiction of the Court.
2. Treaty of Friendship should be the only basis.
Separate Opinioin Judge Jennings
1. Voted for the jurisdiction of the Court.
2. Article 36 (5) should not be applied because Nicaragua never became a
party to the Statute of Permanent Court.
3. Its declaration was “still in force” but was never in force.
Dissenting Opinioin Judge Schwebel
1. This Court has no jurisdiction.
2. Nicaragua has never adhered to this Court’s compulsory jurisdiction. 1929
Nicaragua declaration never came into force.
3. The Frienship Treaty cannot also be used as basis because Niacaragua had
failed to pursue the procedural prerequisites for invoking that
treaty.Moreover, the treaty is purely commercial and there is no relation to
the charges of aggression and intervention made in Nicaragua’s
Application.
 013 (East Timor Case) Portugal v. Australia (Apasan)
February 22, 1991 | ICJ | Setttlement of Disputes
PETITIONER: Portugal
RESPONDENTS: Australia
SUMMARY: Portugal instituted proceedings against Australia concerning
“certain activities of Australia with respect to East Timor” in relation to a treaty
concluded between Australia and Indonesia, which created a Zone of
Cooperation in a maritime area between the two states. According to Portugal,
Australia incurred international responsibility with regard the people of East
Timor and Portugal because Australia 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. Australia opposed the
allegations of Portugal with the following contentions: (1) that there is no
dispute between Australia and Portugal, and that the dispute must be between
Portugal and Indonesia; and (2) that the Court is required to determine the rights
and obligations of Indonesia which means that the Court cannot make a valid
judgment on the present case unless there is consent by Indonesia. Issues are:
First, WoN there is a presence of legal dispute between Australia and Portugal.
The Court held in the affirmative because when Australia denied the allegations
in the complaint of Portugal, then such denial produced the legal dispute.
Second, WoN the Court could validly make a valid judgment on the present
dispute between the parties – The court held in the negative. It is a well-
established principle of international law embodied in the Court's Statute that the
Court can only exercise jurisdiction over a State with its consent. As applied in
the present case, the issue before the court necessarily requires the determination
of another issue that involves another State, which is not a party to the present
case. Consequently, the consent of Indonesia must be obtained first before the
Court can exercise jurisdiction of the latter and subsequently to rule on the
dispute between Australia and Portugal (please see ratios 2-5 for elaboration of
the issues).
DOCTRINE: It is a well-established of principle of international law embodied
in the Court's Statute, namely, that the Court can only exercise jurisdiction over
a State with its consent.
FACTS:
1. On 22 February 1991, Portugal filed an Application instituting proceedings
against Australia concerning “certain activities of Australia with respect to
East Timor”, in relation to the conclusion, on 11 December 1989, of a treaty
(case did not mention or provide the specific treaty) between Australia and
Indonesia which created a Zone of Cooperation in a maritime area between
“the Indonesian Province of East Timor and Northern Australia”.
2. 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.
a. In consequence, according to the Application, Australia had
incurred international responsibility vis-à-vis the people of both
East Timor and Portugal.
3. As the basis for the jurisdiction of the Court, the Application referred to the
declarations by which the two States had accepted the compulsory
jurisdiction of the Court under Article 36, paragraph 2, of its Statute.
4. In its Counter-Memorial, Australia raised questions concerning the
jurisdiction of the Court and the admissibility of the Application. It also
raised the following arguments:
a. There exists in reality no dispute between the Parties.
b. The Court is required to determine the rights and obligations of
Indonesia.
ISSUE/s:
83. WoN there is a presence of legal dispute between Australia and Portugal –
Yes because when Australia denied the allegations in the complaint of
Portugal, then such denial produced the legal dispute.
84. WoN the Court could make a valid judgment on the present dispute
between the parties – No because the issue in the present case necessarily
requires the determination of another issue which involves Indonesia.
Consequently, the consent of Indonesia must be obtained first before the
Court can exercise jurisdiction over another State.
RULING: 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.
RATIO:
First issue
1. Contention of Australia: 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.
a. Court: 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.
Second issue (related to PIL topic)
2. Contention of Australia: Australia contends that the jurisdiction norm and the rule of consent to jurisdiction were two different
conferred upon the Court by the Parties' declarations under Article 36, things, and that it could not in any event rule on the lawfulness
paragraph 2, of the Statute would not enable the Court to act if, in order of the conduct of a State when its judgment would imply an
to do so, the Court were required to rule on the ff: evaluation of the lawfulness of another State which was not a
a. lawfulness of Indonesia's entry into and continuing presence in party to the case.
East Timor,
b. on the validity of the 1989 Treaty between Australia and
Indonesia, or
c. on the rights and obligations of Indonesia under that Treaty
3. Contention of Portugal: Portugal contends 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
(basically Portugal was contending that the Court does not have to rule on
the issue involving Indonesia in order to resolve the current dispute referred
to it)
4. Court: After having carefully considered the arguments advanced by
Portugal which sought to separate Australia’s behaviour from that of
Indonesia, the Court concluded that Australia’s behaviour could not be
assessed without first entering into the question why it was that
Indonesia could not lawfully have concluded the 1989 Treaty, while
Portugal allegedly could have done so.
a. the very subject-matter of the Court’s decision would necessarily
be a determination whether, considering the circumstances in
which Indonesia entered and remained in East Timor, the latter
could or could not have acquired the power to enter into treaties on
behalf of East Timor relating to the resources of the continental
shelf.
b. The Court took the view that it could not make such a
determination in the absence of the consent of Indonesia.
Otherwise, 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.”
5. The Court then rejected Portugal’s additional argument that the rights which
Australia allegedly breached, which is right of people to self-determination,
were rights erga omnes (rights or obligations are owed toward all) and that
accordingly Portugal could require it, individually, to respect them.
a. However, the Court considered that the erga omnes character of a
 014 LaGrand (GERMANY v. US) (Arcenas)
June 27, 2001 | Settlement of disputes
PETITIONER: Germany
RESPONDENTS: United States of America
SUMMARY: Karl and Walter LaGrand were german nationals living in the US.
They were arrested in the United states by law enforcement officers on suspicion
of having been involved earlier in the day in an attempted armed bank robbery in
Marana, Arizona where the bank manager was murdered, and another bank
employee was seriously injured. They were tried before the Supreme Court of
Pima County, Arizona and convicted of murder in the first degree, attempted
murder in the first degree, attempted armed robbery and two counts of
kidnapping. They were sentenced to death for first degree murder and other
senteces of imprisonment for the other charges. On 2 March 1999, Germany
learned of the developments and so filed in the Registry of the Court an
Application instituting proceedings against the United States of America (US) in
a dispute concerning alleged violations of the Vienna Convention on Consular
Relations. Germany raised four submissions for Court determination:
First submission – question of disregard by US of its legal obligations to
Germany under Article 5 and 36, paragraph 1 of the Covention. RULING: The
Court stated that the United States had not only breached its obligations to
Germany as a State party to the Convention, but also that there had been a
violation of the individual rights of the LaGrands under Article 36, paragraph 1,
which rights could be relied on before the Court by their national State.
Second submission – question of disregard by US of its legal obligation under
Article 36, paragraph 2 of the Covention (applying domestic law of “procedural
default”) – RULING: The Court noted that the doctrine of “procedural default”,
had violated Article 36, paragraph 2, of the Convention. That provision required
the United States to “enable full effect to be given to the purposes for which the
rights accorded under Article 36 were intended”. BUT SEE, The Court said the
procedural default rule did not violate Article 36 in itself. The problem arose
when the rule in question did not allow the detained individual to challenge
a conviction and sentence by invoking the failure of the competent national
authorities to comply with their obligations under Article 36, paragraph 1.
The Court concluded that, in the present case, the procedural default rule
had the effect of preventing Germany from assisting the LaGrands in a
timely fashion as provided for by the Convention. Under those circumstances,
the Court held that in the present case the rule referred to violated Article 36,
paragraph 2.
Third submission – question of disregard by US of its legal obligation to comply
with the Order indicating provisional measures of March 3 1999. RULING:
After interpreting Article 41, the Court found that such orders did have binding
effect. In the present case, the Court concluded that its Order of 3 March 1999
“was not a mere exhortation” but “created a legal obligation for the United
States”. The Court then went on to consider the measures taken by the United
States to implement the Order concerned and concluded that it had not complied
with it.
Fourt submission – question of obligation to provide certain assurances of non-
repitition. RULING: the Court added that if the United States, notwithstanding
that commitment, were to fail again in its obligation of consular notification to
the detriment of German nationals, an apology would not suffice in cases where
the individuals concerned had been subjected to prolonged detention or
convicted and sentenced to severe penalties. In the case of such a conviction and
sentence, it would be incumbent upon the United States, by whatever means it
chose, to allow the review and reconsideration of the conviction and sentence
taking account of the violation of the rights set forth in the Convention.
DOCTRINE: The Court’s jurisdiction is based on issues of diplomatic
protection as such is a concept of international law and does not prevent a State
party to a treaty, which creates individual rights, from taking up the case of one
of its nationals and instituting international judicial proceeding on his behalf, on
the basis of general jurisdictional clause in the treaty (Under Vienna
Convention). Where the court has jurisdiction to decide a case, it also has
jurisdiction to deal with submissions requesting it to determine that an
order indicating measures which seeks to preserve the rights of the parties
to this dispute has not been complied with.
FACTS:
1. Karl and Walter LaGrand were German nationals. They moved to the
United States with their mother when they were young, but retained their
German nationality.
2. January 7, 1982 – They were arrested in the United states by law
enforcement officers on suspicion of having been involved earlier in the day
in an attempted armed bank robbery in Marana, Arizona where the bank
manager was murdered, and another bank employee was seriously injured.
3. They were tried before the Supreme Court of Pima County, Arizona and
convicted of murder in the first degree, attempted murder in the first degree,
attempted armed robbery and two counts of kidnapping. They were
sentenced to death for first degree murder and other senteces of
imprisonment for the other charges.
4. Note: at all material times, Germany and US were parties to: Vienna
Convention on Consular Relations and Optional Protocol to that
Convention.
5. ACTION: On 2 March 1999, the Federal Republic of Germany
(GERMANY) filed in the Registry of the Court an Application instituting
proceedings against the United States of America (US) in a dispute
 concerning alleged violations of the Vienna Convention on Consular
Relations of 24 April 1963 (VIENNA CONVENTION)
6. 1982 – According to Germany, authorities of the State of Arizona had
detained two German nationals, Karl and Walter LaGrand (LaGrands), who
were tried and sentenced to death without having been informed of their
rights, as is required under Article 36, paragraph 1 (b), of the Vienna
Convention.
1. Germany also alleged that the failure to provide the required
notification precluded Germany from protecting the LaGrands’
interest provided for by Articles 5 and 36 of the Vienna
Convention at both the trial and the appeal level in the United
States courts.
2. Also, that although the LaGrands, finally with the assistance of
German consular officers, did claim violations of the Vienna
Convention before the federal courts, the courts decided that
LaGrands failed to assert their rights in the previous at State
level and so cannot question it at the federal proceedings,
applying the municipal law doctrine of “procedural default.”
3. In its Application, Germany based the jurisdiction of the Court on
Article 36, paragraph 1, of the Statute of the Court and on Article I
of the Optional Protocol of the Vienna Convention on Consular
Relations.
4. A day before the scheduled execution of Walter LaGrand,
Germany filed an urgent request for the indication of provisional
measures, requesting the Court to indicate that the USA should
take “all measures at its disposal to ensure that Walter LaGrand
whose date of execution had been fixed at 3 March 1999] [was]
not executed pending final judgment in the case before the ICJ.
7. 3 March 1999 – the Court ordered provisional measures and directed the
USA to make sure that the LaGrands are not executed pending the final
decision. However, the two German nationals were executed by the United
States.
8. Note: Points of dispute –
1. First submission – question of disregard by US of its legal
obligations to Germany under Article 5 and 36, paragraph 1 of the
Covention
2. Second submission – question of disregard by US of its legal
obligation under Article 36, paragraph 2 of the Covention
(applying domestic law of “procedural default”)
3. Third submission – question of disregard by US of its legal
obligation to comply with the Order indicating provisional
measures of March 3 1999
4. Fourt submission – question of obligation to provide certain
assurances of non-repitition
ISSUE/S:
1. W/N the court has jurisdiction over the dispute between Germany and US –
YES. Because the disputes in this case are within the meaning of Optional
Protocol in the Convention and also such jurisdiction is vested in the Court
to ensure diplomatic protection which is a concept of international law.
RULING:
RATIO:
ON JURISDICTION OVER DISPUTES (Important)
1. ICJ did not accept the US’ objections since the disputes between the parties
are disputes within the meaning of Article 1 of the Optional Protocol.
2. ICJ held that Germany’s claims on the individual rights of the LaGrand
brothers is not beyond the Court’s jurisdiction because diplomatic
protection is a concept of international law and does not prevent a State
party to a treaty, which creates individual rights, from taking up the
case of one of its nationals and instituting international judicial
proceeding on his behalf, on the basis of general jurisdictional clause in
the treaty.
3. Public hearings were held and the Court declared that it had jurisdiction to
deal with all Germany’s submissions and that they were admissible based
on the history of the dispute and certain objections of the USA to the
Court’s jurisdiction and to the admissibility of Germany’s submissions.
4. Fisheris Jurisdiction case: declared that in order to consider the dispute in
all its aspects it may also deal with a submission that “is one based on facts
subsequent to the filing of the application, but arising directly out of the
question which is the subject matter of that application.
a. Where the court has jurisdiction to decide a case, it also has
jurisdiction to deal with submissions requesting it to determine
that an order indicating measures which seeks to preserve the
rights of the parties to this dispute has not been complied with.
MERITS OF THE CASE (RULING ON THE FOUR SUBMISSIONS)
First Submission
US violated its int’l legal obligations to Germany by not informing the LaGrands
without delay following their arrest of their arrest as provided under Article 36 para
1 (b)
1. Article 36, paragraph 1 establishes an interrelated regime designed to
facilitate the implementation of the system of consular protection.
a. Paragraph 1 (a) – right of communication and access
b. Paragraph 1 (b) – modalities of consular notification
c. Paragraph 1 (c) – measures which consular officers may take in
rendering consular assistance to their nationals in the custody of
the receiving state.
2. That when the sending state is unaware of the detention of its nationals due
to the failure of the receiving state to provide the requisite consulare
 notification without day, the sending state has been prevent for all practical obligation for US – in the end, Court found that US did not comply
purposes from exercising its rights under article 36 paragraph 1 with the Order because:
3. Court said that all that matters and is sufficient to note that the Convention a. While, US actually complied with the first provisional measure: to
conferred these rights, and that Germany and the LaGrands were prevented transmit the order to the Governor of State of Arizona
by the breach of the US from exercising them, had they so chosen. b. BUT on the second provisional measure: to take all measures at its
4. Court concludes that Article 36 para 1 creates individual rights, which disposal to ensure Walter LaGrand is not executed
by virtue of Article 1 of the Optional Protocol may be invoked by this i. US did not comply because while the Order was
court by the national state of the detained persons. This applies in the transmitted to the Governor, the Governor ignored it
present case, therefore. despite the recommendation of the Arizona Clemency
Second Submission Board of a stay of execution for Walter LaGrand. Also,
US violated its int’l legal obligation to Germany in applying rules of its domestic The US Supreme Court rejected the separate application
law, which is the doctrine of procedural default violating Article 36 Para 2 of Germany for a stay of execution
1. Court already declared that Article 36 para 1 creates individual rights for the Fourth Submission
detained person in addition to the rights of the sending state. US shall provide Germany an assurance of non-repetition of its unlawful acts in
2. The problem is that the procedural default rule does not allow the detained furture cases of detention of or criminal proceedings against German nationals
individual to challenge a conviction and sentence by claiming that the 1. Court said that if US fails in its obligation of consular notification to the
competent authorities failed to complay with their obligation to provide the detriment of German nationals, an apology would not suffice in cases
requisite consular information “without delay”, thus preventing the where the individuals concerned have been subjected to prolonged
LaGrands from seeking and obtaining consular assistance from Germany. detention or convicted and sentenced to severe penalties
3. Court declared that the procedural default rule had the effect of preventing 2. In the case of such a conviction and sentence, it would be incumbent upon
“full effect form being given to the purposes for which the rights accorded the United States, by whatever means it chose, to allow the review and
under Article 36 are intended” and thus violated paragraph 3 of Article 36. reconsideration of the conviction and sentence taking account of the
violation of the rights set forth in the Convention.
Third Submission
US violated its legal obligations by failing to comply with the Order of taking such
measures to ensure Walter LaGrand is not executed pending final decision of ICJ
1. Article 41 should be construed as to mean that the object and prupose of the
Statute under the terms of Article 41 means that the power to indicate
provisional measures entails that such measures should be binding,
inasmuch as the power in question is based on the necessity to safeguard
and to avoid prejudice to the rights of the parties pursuant to the final
judgment of the Court.
2. Court notes that measures designed to avoid aggravating or extending
disputes have frequently been indicated by the Court. They were indicated
with the purpose of being implemented.
a. According to the deliberations while drafting Article 41, it was
appreciated that the Court did not have the means to assure the
execution of its decisions. However, the lack of means of
execution and lack of binding force are different matters.
b. Ergo, while the Court itself does not have means to ensure
execution of decisions made pursuant to Article 41, the Order is
nevertheless binding.
3. APPLYING THIS: The Order of March 3 1999 (to keep Walter
LaGrand alive during the proceedings) was adopted pursuant to
Article 41which means it has binding character and created a legal
 015 Legality of the Threat or Use of Nuclear Weapons Case, Advisory 359. By its resolution 49/75 K adopted on 15 December 1994, it submitted to the
Opinion, ICJ Reports 1996, p. 226 (Bacquel) Court, for advisory opinion, the following question : “Is the threat or use of
July 8, 1996 | ICJ | Settlement of Disputes nuclear weapons in any circumstance permitted under international law ?”
360. The resolution asked the Court to render its advisory opinion “urgently”.
Written statements were filed by 28 States, and subsequently written
PETITIONER: United Nations General Assembly (requested for an advisory
observations on those statements were presented by two States.
opinion)
361. In the course of the oral proceedings, which took place in October and
RESPONDENTS: ICJ (rendered the advisory opinion)
November 1995, 22 States presented oral statements.
SUMMARY: The General Assembly of the United Nations submitted before the
ISSUE/s:
court its resolution questioning, in essence, the legality of the threat and use of
85. Is the threat or use of nuclear weapons in any circumstance permitted under
nuclear weapons. ICJ ruled as follows:
international law ? ICJ was not sure: “in view of the current state of
1. The Court then considered the question of the legality or illegality of the
international law and of the elements of fact at its disposal, [it] cannot
use of nuclear weapons in the light of the provisions of the Charter relating to the
conclude definitively whether the threat or use of nuclear weapons would be
threat or use of force and concluded that those provisions applied to any use of
lawful or unlawful in an extreme circumstance of self-defence, in which the
force, regardless of the weapons employed. In addition it stated that the principle
very survival of a State would be at stake
of proportionality might not in itself exclude the use of nuclear weapons in self-
defence in all circumstances.
RATIO:
2. A use of force that was proportionate under the law of self-defence had, in
372. The Court rendered its Advisory Opinion. Having concluded that it had
order to be lawful, to meet the requirements of the law applicable in armed
jurisdiction to render an opinion on the question put to it and that there was
conflict, including, in particular, the principles and rules of humanitarian law.
no compelling reason to exercise its discretion not to render an opinion, the
3. From a consideration of customary and conventional law, it concluded that
Court found that the most directly relevant applicable law was that relating
the use of nuclear weapons could not be seen as specifically prohibited on the
to the use of force, as enshrined in the United Nations Charter, and the law
basis of that law, nor did it find any specific prohibition of the use of nuclear
applicable in armed conflict, together with any specific treaties on nuclear
weapons in the treaties that expressly prohibited the use of certain weapons of
weapons that the Court might find relevant.
mass destruction.
373. The Court then considered the question of the legality or illegality of the use
4. The emergenceof a customary rule specifically prohibiting the use of
of nuclear weapons in the light of the provisions of the Charter relating to
nuclear weapons as such was hampered by the continuing tensions between the
the threat or use of force. It observed, inter alia, that those provisions
nascent opinio juris on the one hand, and the still strong adherence to the
applied to any use of force, regardless of the weapons employed. In addition
doctrine of deterrence on the other.
it stated that the principle of proportionality might not in itself exclude the
5. Although the applicability to nuclear weapons of the principles and rules of
use of nuclear weapons in self-defence in all circumstances.
humanitarian law and of the principle of neutrality was not disputed, the
374. However at the same time, a use of force that was proportionate under the
conclusions to be drawn from it were, on the other hand, controversial. It pointed
law of self-defence had, in order to be lawful, to meet the requirements of
out that, in view of the unique characteristics of nuclear weapons, the use of such
the law applicable in armed conflict, including, in particular, the principles
weapons seemed scarcely reconcilable with respect for the requirements of the
and rules of humanitarian law. It pointed out that the notions of a “threat”
law applicable in armed conflict.
and “use” of force within the meaning of Article 2, paragraph 4, of the
Charter stood together in the sense that if the use of force itself in a given
DOCTRINE: From a consideration of customary and conventional law, it
case was illegal — for whatever reason — the threat to use such force
concluded that the use of nuclear weapons could not be seen as specifically
would likewise be illegal.
prohibited on the basis of that law, nor did it find any specific prohibition of the
375. The Court then turned to the law applicable in situations of armed conflict.
use of nuclear weapons in the treaties that expressly prohibited the use of certain
From a consideration of customary and conventional law, it concluded
weapons of mass destruction
that the use of nuclear weapons could not be seen as specifically
prohibited on the basis of that law, nor did it find any specific
FACTS: prohibition of the use of nuclear weapons in the treaties that expressly
358. By a letter dated 19 December 1994, filed in the Registry on 6 January prohibited the use of certain weapons of mass destruction. The Court
1995, the Secretary-General of the United Nations officially communicated then turned to an examination of customary international law to determine
to the Registry a decision taken by the General Assembly.
 whether a prohibition of the threat or use of nuclear weapons as such flowed
from that source of law. Noting that the members of the international
community were profoundly divided on the matter of whether non-recourse
to nuclear weapons over the past 50 years constituted the expression of an
opinio juris, it did not consider itself able to find that there was such an
opinio juris.
376. The emergence, as lex lata, of a customary rule specifically prohibiting the
use of nuclear weapons as such was hampered by the continuing tensions
between the nascent opinio juris on the one hand, and the still strong
adherence to the doctrine of deterrence on the other. The Court then dealt
with the question whether recourse to nuclear weapons ought to be
considered as illegal in the light of the principles and rules of
international humanitarian law applicable in armed conflict and of the
law of neutrality. It laid emphasis on two cardinal principles: (a) the
first being aimed at the distinction between combatants and non-
combatants; States must never make civilians the object of attack and must
consequently never use weapons that are incapable of distinguishing
between civilian and military targets while (b) according to the second of
those principles, unnecessary suffering should not be caused to
combatants. It follows that States do not have unlimited freedom of choice
in the weapons they use. The Court also referred to the Martens Clause,
according to which civilians and combatants remained under the protection
and authority of the principles of international law derived from established
custom, the principles of humanity and the dictates of public conscience.
377. The Court indicated that, although the applicability to nuclear weapons of
the principles and rules of humanitarian law and of the principle of
neutrality was not disputed, the conclusions to be drawn from it were, on
the other hand, controversial. It pointed out that, in view of the unique
characteristics of nuclear weapons, the use of such weapons seemed
scarcely reconcilable with respect for the requirements of the law applicable
in armed conflict. The Court was led to observe that “in view of the current
state of international law and of the elements of fact at its disposal, [it]
cannot conclude definitively whether the threat or use of nuclear weapons
would be lawful or unlawful in an extreme circumstance of self-defence, in
which the very survival of a State would be at stake”. The Court added,
lastly, that there was an obligation to pursue in good faith and to conclude
negotiations leading to nuclear disarmament in all its aspects under strict
and effective international control.
 016 CASE CONCERNING QUESTIONS OF INTERPRETATION
AND APPLICATION OF THE 1971 MONTREAL CONVENTION
ARISING FROM THE AERIAL INCIDENT AT LOCKERBIE
[LIBYAN ARAB JAMAHIRIYA v. UNITED KINGDOM] —
REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES
(BALISONG)
14 Apr. 1992 | International Court of Justice | Bias; Impartiality & Integrity of a
Judge
PETITIONER: Libyan Arab Jamahiriya
RESPONDENTS: United Kingdom
SUMMARY: Two Libyan nationals were charged and indicted by a Grand Jury of
the United States of America and by the Lord Advocate of Scotland for having
caused a bomb to be placed aboard Pan Am flight 103. The bomb subsequently
exploded, causing the aeroplane to crash, all persons aboard being killed. The Libyan
Arab Jamahiriya filed in the Registry of the Court two separate Applications
instituting proceedings against the Government of the United States of America and
the Government of the United Kingdom, in respect of a dispute over the
interpretation and application of the Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation signed in Montreal on 23 September 1971.
The United Kingdom sought the extradition of said Libyan nationals. Libya refused.
Libya pointed out that the acts alleged constituted an offence within the meaning of
Article 1 of the Montreal Convention, which it claimed to be the only appropriate
Convention in force between the Parties, and asserted that it had fully complied with
its own obligations under that instrument, Article 5 of which required a State to
establish its own jurisdiction over alleged offenders present in its territory in the
event of their non-extradition; and that there was no extradition treaty between Libya
and the respective other Parties, so that Libya was obliged under Article 7 of the
Convention to submit the case to its competent authorities for the purpose of
prosecution. Libya contended that the United States of America and the United
Kingdom were in breach of the Montreal Convention through rejection of its efforts
to resolve the matter within the framework of international law, including the
Convention itself, in that they were placing pressure upon Libya to surrender the two
Libyan nationals for trial. Libya made two separate requests to the Court to indicate
forthwith certain provisional measures, namely: (a) to enjoin the United States and
the United Kingdom respectively from taking any action against Libya calculated to
coerce or compel it to surrender the accused individuals to any jurisdiction outside
Libya; and (b) to ensure that no steps were taken that would prejudice in any way the
rights of Libya with respect to the legal proceedings that were the subject of Libya’s
Applications. United Kingdom contended that the exercise by the Court and the
Security Council of their respective powers will conflict.
The Court found that the circumstances of the cases were not such as to require the
exercise of its powers to indicate provisional measures. The rights claimed by Libya
under the Montreal Convention cannot now be regarded as appropriate for protection
by the indication of provisional measures. Fruthermore, an indication of the
measures requested by Mibya would be likely to impair the rights which appear
prima facie to be enjoyed by the United Kingdom by virtue of Security Council
resolution 748 (1992).
DOCTRINE: Until the Security Council makes a determination under Article 39, a
dispute remains to be dealt with by the methods of peaceful settlement provided
under Article 33, including judicial settlement; and even afer a determination under
Article 39, there is no necessary inconsistency between Security Council action and
adjudication by the Court. The fact that a matter is before the Security Council
should not prevent it being dealt with by the Court and that both proceedings could
be pursued pari passu.
FACTS:
362. Two Libyan nationals were charged and indicted by a Grand Jury of the
United States of America and by the Lord Advocate of Scotland for having
caused a bomb to be placed aboard Pan Am flight 103. The bomb
subsequently exploded, causing the aeroplane to crash, all persons aboard
being killed.
363. The UN Security Council released Resolution 748 deciding that the Libyan
government must comply with the requests of the Security Council, asking
the Libyan government to cease all forms of terrorist action, and calling
upon the States to comply with the Resolution.
364. The Libyan government brought this action asking the Court (a) to enjoin
the United States and the United Kingdom respectively from taking any
action against Libya calculated to coerce or compel it to surrender the
accused individuals to any jurisdiction outside Libya; and (b) to
ensure that no steps were taken that would prejudice in any way the rights
of Libya with respect to the legal proceedings that were the subject of
Libya’s Applications.
365. United Kingdom contended that the exercise by the Court and the Security
Council of their respective powers will conflict. United Kingdom contended
that Libya had failed to show that Article 14, paragraph 1, of the Montreal
Convention prima facie appeared to afford a basis on which the jurisdiction
of the Court might be founded in that Libya had not established the
existence of a dispute concerning the interpretation or application of the
Montreal Convention; that, even if there was any such dispute, Libya had
failed to establish that the dispute could not be settled through negotiation;
that, even if the dispute could not be so settled, Libya had not made a proper
request for arbitration; and that, even if such a request had been made, the
 period of six months referred to in that provision had not expired when
Libya's Application was filed. That Libya had failed to establish the
possible existence of the rights claimed; that there was no nexus between
the rights sought to be protected and the provisional measures requested;
and that there was no proof that the rights sought to be protected would
suffer irreparable damage if the provisional measures requested were not
indicated. That there was no proof of urgency; that there was no proof that
the United Kingdom was threatening Libya with measures, including
possible recourse to the use of armed force.
ISSUE/s:
86. Whether there is conflict regarding the jurisdiction of the Court and the
Security Council. NO — Although both organs deal with the same matter,
there are differing points of emphasis.
What would be required between the two is Coordinationa nd Cooperation,
ot competition or mutual exclusion.
Provisional Measures
380. The Court found that the circumstances of the cases were not such as to
require the exercise of its powers to indicate provisional measures. The
rights claimed by Libya under the Montreal Convention cannot now be
regarded as appropriate for protection by the indication of provisional
measures. Fruthermore, an indication of the measures requested by Mibya
would be likely to impair the rights which appear prima facie to be enjoyed
by the United Kingdom by virtue of Security Council resolution 748 (1992).

87. Whether the Court can grant the provisional measures sought by the Libyan
government. NO — The Court found that the circumstances of the cases
were not such as to require the exercise of its powers to indicate provisional
measures.

RULING: Petition is DENIED. Parties are directed to continue with the

proceedings.

RATIO:
Jurisdiction of the Court
378. Until the Security Council makes a determination under Article 39, a
dispute remains to be dealt with by the methods of peaceful settlement
provided under Article 33, including judicial settlement; and even afer a
determination under Article 39, there is no necessary inconsistency between
Security Council action and adjudication by the Court. The fact that a
matter is before the Security Council should not prevent it being dealt with
by the Court and that both proceedings could be pursued pari passu.

379. Although both organs deal with the same matter, there are differing points
of emphasis. In the instant case, the Security Council, as a political organ, is
more concerned with the elimination of international terrorism and the
maintenance of international peace and security, while the International
Court of Justice, as the principal judicial organ of the United Nations, is
more concerned with legal procedures such as questions of extradition and
proceedings in connection with prosecution of offenders and assessment of
compensation, etc. But these functions may be correlated with each other.
 018 EL SALVADOR v. HONDURAS (NICARAGUA INTERVENTION)
(Callueng)
September 11, 1992 | N/A | Intervention
PETITIONER: El Salvador
RESPONDENTS: Honduras
INTERVENOR: Nicaragua
SUMMARY: On 11 December 1986, El Salvador and Honduras jointly notified
the Court of a Special Agreement concluded between them whereby a dispute
referred to as "Land, Island and Maritime Frontier Dispute" would be submitted
for decision by a Chamber to be constituted according to Article 26 paragraph 2
of the Statute. In November 1989, Nicaragua addressed to the Court an
Application under Article 62 of the Statute for permission to intervene in the
case, stating that, while it had no desire to intervene in the dispute concerning
the land boundary, it wished to protect its rights in the Gulf of Fonseca (of which
the three States are riparians), as well as “in order to inform the Court of the
nature of the legal rights of Nicaragua which are in issue in the dispute”. Article
62 of the Statute provides that: (a) should a state consider that it has an interest
of a legal nature which may be affected by the decision in the case, it may
submit a request to the Court to be permitted to intervene. (b) It shall be for the
Court to decide upon this request. Nicaragua further maintained that its request
for permission to intervene was a matter exclusively within the procedural
mandate of the full Court. ISSUE: WoN Nicaragua can intervene in the dispute
between El Salvador and Honduras regarding the protection of its legal rights in
the Gulf of Fonseca. YES, because Nicaragua was able to show proof that they
had interest of a legal nature which may be affected by the Court’s decision. In
order to obtain permission to intervene, a State has to show an interest of a legal
nature which may be affected by the Court’s decision in the case. El Salvador, in
opposing the permission to intervene, argues that Nicaragua must show a valid
link of jurisdiction between Nicaragua and the Parties. The Court held that this
was not necessary in the case of an intervention. The general rule is no other
State may involve itself in the proceedings without the consent of the original
parties. However, in the case of an intervention, the existence of a valid link of
jurisdiction between the would-be intervenor and the parties is not a bar to
permission being given for intervention. On the contrary, the procedure of
intervention is to ensure that a State with possibly affected interests may be
permitted to intervene even though there is no jurisdictional link and it therefore
cannot become a party. Procedural rights of the state permitted to intervene: (a)
The intervening state does not become party to the proceedings and does not
acquire the rights or become subject to the obligations which attach to the status
of a party. (b) It has a right to be heard by the Chamber through submission of a
written statement and participation in the hearings.
DOCTRINE: Procedural rights of the state permitted to intervene: (a) The
intervening state does not become party to the proceedings and does not acquire
the rights or become subject to the obligations which attach to the status of a
party. (b) It has a right to be heard by the Chamber through submission of a
written statement and participation in the hearings.
FACTS:
1. On 11 December 1986, El Salvador and Honduras jointly notified the Court
of a Special Agreement concluded between them on 24 May 1986 whereby
a dispute referred to as "Land, Island and Maritime Frontier Dispute" would
be submitted for decision by a Chamber to be constituted according to
Article 26 para.2 of the Statute. The Chamber would consist of three
Members of the Court and two judges ad hoc chosen by each Party. The
Chamber finally consisted of Judges Oda, Sette-Camara and Sir Robert
Jennings and the ad hoc judges Valticos and Torres Bernárdez
2. The dispute was essentially rooted in the fall of the Spanish Colonial
Empire in Central America in the 19th century. Both Honduras and El
Salvador belonged to the Captaincy-General of Guatemala, which itself was
a part of Mexico at the time. In 1821, Honduras and El Salvador joined the
Federal Republic of Central America and became independant in 1839 after
the disintegration of the Federal Republic. Their respective national borders
corresponded to the administrative borders recognized for the former
Spanish colonies according to the uti possidetis iuris principle applied first
in Central America and later in Africa.
3. As early as 1854, the legal status of the islands located in the Gulf of
Fonseca became an issue of dispute; the question of the land frontier
followed in 1861. Border incidents led to mounting tension between the
States and, ultimately, to an armed conflict in 1969. However, in 1972 the
parties were able to reach an agreement on a substantial part of the land
border between El Salvador and Honduras; only six sectors of the frontier
remained unsettled. A mediation process initiated in 1978 resulted in the
conclusion of a peace treaty in 1980.
4. Under this treaty a Joint Border Commission was created to determine the
boundary in the remaining six sectors as well as to decide upon the legal
status of the islands and the maritime spaces. In the event that the parties
did not reach a settlement within five years, the treaty provided that the
parties, within six months, conclude a Special Agreement to submit the
dispute to the ICJ. Accordingly, a Special Agreement was concluded on
May, 24, 1986 requesting the Court to delimit the frontier between El
Salvador and Honduras in the subject six sectors and to determine the legal
status of the islands in the Gulf of Fonseca, and the waters of the Gulf itself.
5. In November 1989, Nicaragua addressed to the Court an Application under
Article 62 of the Statute for permission to intervene in the case, stating that,
while it had no desire to intervene in the dispute concerning the land
boundary, it wished to protect its rights in the Gulf of Fonseca (of which the
three States are riparians), as well as “in order to inform the Court of the
nature of the legal rights of Nicaragua which are in issue in the dispute”.
 6. Article 62 of the Statute:
a. l. Should a state consider that it has an interest of a legal nature
which may be affected by the decision in the case, it may submit a
request to the Court to be permitted to intervene.
b. 2. It shall be for the Court to decide upon this request.
7. Nicaragua further maintained that its request for permission to intervene
was a matter exclusively within the procedural mandate of the full Court.
ISSUE/s:
1. WoN Nicaragua can intervene in the dispute between El Salvador and
Honduras regarding the protection of its legal rights in the Gulf of Fonseca.
YES, because Nicaragua was able to show proof that they had interest
of a legal nature which may be affected by the Court’s decision.
RULING: The Chamber GRANTED the request to intervene.
RATIO:
1. Having heard the Parties and Nicaragua at a series of public sittings, the
Chamber delivered its Judgment on 13 September 1990. It found that
Nicaragua had shown that it had an interest of a legal nature which
might be affected by part of the Judgment of the Chamber on the
merits, with regard to the legal régime of the waters of the Gulf of
Fonseca.
2. The Chamber on the other hand decided that Nicaragua had not shown
such an interest which might be affected by any decision it might be
required to make concerning the delimitation of those waters, or any
decision as to the legal situation of the maritime spaces outside the Gulf
or any decision as to the legal situation of the islands in the Gulf. Within
the framework thus defined, the Chamber decided that Nicaragua was
entitled to intervene in the case. A written statement of Nicaragua and
written observations on that statement by El Salvador and Honduras were
subsequently filed with the Court.
3. The Chamber began by noting the agreement of both Parties that the
fundamental principle for determining the land area is the uti possidetis
juris, i.e., the principle, generally accepted in Spanish America, that
international boundaries follow former colonial administrative boundaries.
The Chamber was, moreover, authorized to take into account, where
pertinent, a provision of the 1980 Peace Treaty that a basis for delimitation
is to be found in documents issued by the Spanish Crown or any other
Spanish authority during the colonial period, and indicating the jurisdictions
or limits of territories, as well as other evidence and arguments of a legal,
historical, human or any other kind. Noting that the Parties had invoked the
exercise of government powers in the disputed areas and of other forms
of effectivités, the Chamber considered that it might have regard to evidence
of action of this kind affording indications of the uti possidetis
juris boundary. The Chamber then considered successively, from west to
east, each of the six disputed sectors of the land boundary, to which some
152 pages were specifically devoted.
4. With regard to the legal situation of the islands in the Gulf, the Chamber
considered that, although it had jurisdiction to determine the legal situation
of all the islands, a judicial determination was required only for those in
dispute, which it found to be El Tigre, Meanguera and Meanguerita. It
rejected Honduras’s claim that there was no real dispute as to El Tigre.
Noting that in legal theory each island appertained to one of the Gulf States
by succession from Spain, which precluded acquisition by occupation, the
Chamber observed that effective possession by one of the States could
constitute a post-colonial effectivité shedding light on the legal situation.
Since Honduras had occupied El Tigre since 1849, the Chamber concluded
that the conduct of the Parties accorded with the assumption that El Tigre
appertained to it. The Chamber found Meanguerita, which is very small,
uninhabited and contiguous to Meanguera, to be a “dependency” of
Meanguera. It noted that El Salvador had claimed Meanguera in 1854 and
that from the late nineteenth century the presence there of El Salvador had
intensified, as substantial documentary evidence of the administration of
Meanguera by El Salvador showed. A protest in 1991 by Honduras to El
Salvador over Meanguera was considered too late to affect the presumption
of acquiescence by Honduras. The Chamber thus found that Meanguera and
Meanguerita appertained to El Salvador.
5. With respect to the maritime spaces within the Gulf, El Salvador
claimed that they were subject to a condominium of the three coastal States
and that delimitation would hence be inappropriate; Honduras argued that
within the Gulf there was a community of interests necessitating a judicial
delimitation. Applying the normal rules of treaty interpretation to the
Special Agreement and the Peace Treaty, the Chamber found that it had no
jurisdiction to effect a delimitation, whether inside or outside the Gulf. As
for the legal situation of the waters of the Gulf, the Chamber noted that,
given its characteristics, the Gulf was generally acknowledged to be a
historic bay. The Chamber examined the history of the Gulf to discover its
“régime”, taking into account the 1917 Judgment of the Central American
Court of Justice in a case between El Salvador and Nicaragua concerning
the Gulf. In its Judgment, the Central American Court had found inter
alia that the Gulf was a historic bay possessing the characteristics of a
closed sea. Noting that the coastal States continued to claim the Gulf as a
historic bay with the character of a closed sea, a position in which other
nations acquiesced, the Chamber observed that its views on the régime of
the historic waters of the Gulf coincided with those expressed in the 1917
Judgment. It found that the Gulf waters, other than the three-mile maritime
belt, were historic waters and subject to the joint sovereignty of the three
coastal States. It noted that there had been no attempt to divide the waters
according to the principle of uti possidetis juris. A joint succession of the
three States to the maritime area thus seemed to be the logical outcome of
the uti possidetisprinciple. The Chamber accordingly found that Honduras
had legal rights in the waters up to the bay closing line, which it considered
 also to be a baseline.
6. Regarding the waters outside the Gulf, the Chamber observed that
entirely new concepts of law, unthought of when the Central American
Court gave its Judgment in 1917, were involved, in particular those
regarding the continental shelf and the exclusive economic zone, and found
that, excluding a strip at either extremity corresponding to the maritime
belts of El Salvador and Nicaragua, the three joint sovereigns were entitled,
outside the closing line, to a territorial sea, continental shelf and exclusive
economic zone, but must proceed to a division by mutual agreement. Lastly,
as regards the effect of the Judgment on the intervening State, the Chamber
found that it was not res judicata for Nicaragua.
 PCA Case No. 2013-19 Arbitration between RP and PRC (Castillo, I.) Background to the Arbitration and to the Proceedings on Jurisdiction and
October 29, 2015 | Arbitral Tribunal | Settlement of disputes Admissibility

1. This arbitration concerns an application by the Philippines for rulings in

PARTIES: The Republic of the Philippines and The People’s Republic of
respect of three inter-related matters concerning the relationship between
China
the Philippines and China in the South China Sea.
SUMMARY: This arbitration concerns an application by the Philippines for
2. First, the Philippines seeks a ruling on the source of the Parties’ rights and
rulings in respect of three inter-related matters concerning the relationship
obligations in the South China Sea and the effect of the United Nations
between the Philippines and China in the South China Sea: ruling on the parties’
Convention on the Law of the Sea on China’s claims to “historic rights”
rights and obligations in the South China Sea and the effect of the UN
within its so-called “nine-dash line”.
Convention on the Law of the Sea on China’s claims to “historic rights” within
3. Second, the Philippines seeks a ruling on whether certain maritime features
the “9-dash line,” ruling on characterisation of islands, rocks, low tide
claimed by both China and the Philippines are properly characterised as
elevations or submerged banks under the Convention, and ruling on whether
islands, rocks, low tide elevations or submerged banks under the
certain Chinese activities in the South China Sea have violated the Convention.
Convention. The status of these features under the Convention may
Chinese Gov’t made it clear that it is neither accepting nor participating in these
determine the maritime zones they are capable of generating.
arbitral proceedings. The issue is WoN the Tribunal has jurisdiction over the
4. Finally, the Philippines seeks rulings on whether certain Chinese activities
Philippines’ claims - YES. The Award does not decide any aspect of the merits
in the South China Sea have violated the Convention, by interfering with
of the Parties’ dispute. In its Award, the Tribunal has held that both the
the exercise of the Philippines’ sovereign rights and freedoms under the
Philippines and China are parties to the Convention and bound by its
Convention or through construction and fishing activities that have harmed
provisions on the settlement of disputes. The Tribunal has also held that
the marine environment.
China’s decision not to participate in these proceedings does not deprive
5. The Chinese Government has adhered to the position of neither accepting
the Tribunal of jurisdiction and that the Philippines’ decision to commence
nor participating in these arbitral proceedings. It has reiterated this position
arbitration unilaterally was not an abuse of the Convention’s dispute
in diplomatic notes, in public statements, in the “Position Paper of the
settlement procedures. Although the Convention specifies certain limitations
Government of the People’s Republic of China on the Matter of Jurisdiction
and exceptions to the subject matter of the disputes that may be submitted to
in the South China Sea Arbitration Initiated by the Republic of the
compulsory settlement, it does not permit other reservations and a State may
Philippines” dated 7 December 2014, and in two letters to members of the
not except itself generally from the Convention’s mechanism for the
Tribunal from the Chinese Ambassador to the Kingdom of the Netherlands.
resolution of disputes. Although China did not participate in the constitution of
6. The Chinese Government has also made clear that these statements and
the Tribunal, the Tribunal held that it had been properly constituted pursuant to
documents “shall by no means be interpreted as China’s participation
the provisions of Annex VII to the Convention. The Tribunal noted that,
in the arbitral proceeding in any form.”
although certain provisions of the Convention address the abuse of rights and
7. Under the Convention, a tribunal constituted under Annex VII has
provide a preliminary procedure to dismiss claims that are facially unfounded, it
jurisdiction to consider a dispute between States Parties to the Convention
was more appropriate to consider China’s concerns about the Tribunal’s
to the extent that the dispute involves the “interpretation or application” of
jurisdiction as a preliminary objection. The Tribunal also noted that the mere act
the Convention.
of unilaterally initiating an arbitration cannot constitute an abuse of the
8. However, the Convention excludes certain types of disputes from the
Convention.
jurisdiction of a tribunal and includes certain preconditions that must be met
before any tribunal may exercise jurisdiction.
DOCTRINE: Article 9 of Annex VII: Absence of a party or failure of a party
9. The Tribunal also has a duty pursuant to Article 9 of Annex VII to the
to defend its case shall not constitute a bar to the proceedings. Before making
Convention to satisfy itself that it has jurisdiction over the dispute.
its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction
10. Accordingly, the Tribunal made clear before and during the hearing that it
over the dispute but also that the claim is well founded in fact and in law.
would consider possible issues of jurisdiction and admissibility whether or
not they were addressed in China’s Position Paper.

Position of the Parties

FACTS:
11. The Philippines has made 15 submissions in these proceedings, requesting
the Tribunal to find that:
a. China’s maritime entitlements in the South China Sea, like those of
the Philippines, may not extend beyond those permitted by the
United Nations Convention on the Law of the Sea (“UNCLOS” or
the “Convention”);
b. China’s claims to sovereign rights and jurisdiction, and to “historic
rights”, with respect to the maritime areas of the South China Sea
encompassed by the so-called “nine-dash line” are contrary to the
Convention and without lawful effect to the extent that they exceed
the geographic and substantive limits of China’s maritime
entitlements under UNCLOS;
c. Scarborough Shoal generates no entitlement to an exclusive
economic zone or continental shelf;
d. Mischief Reef, Second Thomas Shoal and Subi Reef are low-tide
elevations that do not generate entitlement to a territorial sea,
exclusive economic zone or continental shelf, and are not features
that are capable of appropriation by occupation or otherwise;
e. Mischief Reef and Second Thomas Shoal are part of the
exclusive economic zone and continental shelf of the Philippines;
f. Gaven Reef and McKennan Reef (including Hughes
Reef) are low-tide elevations that do not generate entitlement to a
territorial sea, exclusive economic zone or continental shelf, but
their low-water line may be used to determine the baseline from
which the breadth of the territorial sea of Namyit and Sin Cowe,
respectively, is measured;
g. Johnson Reef, Cuarteron Reef and Fiery Cross Reef generate no
entitlement to an exclusive economic zone or continental shelf;
h. China has unlawfully interfered with the enjoyment and exercise of
the sovereign rights of the Philippines with respect to the living
and non-living resources of its exclusive economic zone and
continental shelf;
i. China has unlawfully failed to prevent its nationals and vessels
from exploiting the living resources in the exclusive economic
zone of the Philippines;
j. China has unlawfully prevented Philippine fishermen from
pursuing their livelihoods by interfering with traditional fishing
activities at Scarborough Shoal;
k. China has violated its obligations under the Convention to protect
and preserve the marine environment at Scarborough Shoal and
Second Thomas Shoal;
l. China’s occupation and construction activities on Mischief Reef:
i. violate the provisions of the Convention concerning
artificial islands, installations and structures;
ii. violate China’s duties to protect and preserve the marine
environment under the Convention; and
iii. constitute unlawful acts of attempted appropriation in
violation of the Convention;
m. China has breached its obligations under the Convention by
operating its law enforcement vessels in a dangerous manner
causing serious risk of collision to Philippine vessels navigating in
the vicinity of Scarborough Shoal;
n. Since the commencement of this arbitration in January 2013, China
has unlawfully aggravated and extended the dispute by, among
other things:
i. interfering with the Philippines’ rights of navigation in the
waters at, and adjacent to, Second Thomas Shoal;
ii. preventing the rotation and resupply of Philippine
personnel stationed at Second Thomas Shoal; and
iii. endangering the health and well-being of Philippine
personnel stationed at Second Thomas Shoal; and
o. China shall desist from further unlawful claims and activities.
12. With respect to jurisdiction, the Philippines has asked the Tribunal to
declare that the Philippines’ claims “are entirely within its jurisdiction and
are fully admissible.”
13. China has repeatedly stated that “it will neither accept nor participate in the
arbitration unilaterally initiated by the Philippines.”
14. China does not accept and is not participating in this arbitration but has
stated its position that the Tribunal “does not have jurisdiction over this
case.” In its “Position Paper of the Government of the People’s Republic of
China on the Matter of Jurisdiction in the South China Sea Arbitration
Initiated by the Republic of the Philippines” of December 2014, China
advanced the following arguments:
a. “The essence of the subject-matter of the arbitration is the
sovereignty over the relevant maritime features in the South China
Sea”;
b. “China and the Philippines, have agreed, through bilateral
instruments and the Declaration on the Conduct of Parties in
the South China Sea, to settle their relevant disputes through
negotiations,”
c. The disputes submitted by the Philippines “would constitute an
integral part of maritime delimitation between two countries.”
15. Under the Convention, an arbitral tribunal must satisfy itself that it has
jurisdiction to decide a matter presented to it, even if a party chooses not to
participate in the proceedings or to make a formal objection.
16. The Tribunal’s Award of today’s date is unanimous and concerns only
whether the Tribunal has jurisdiction to consider the Philippines’
claims and whether such claims are admissible.
17. The Award does not decide any aspect of the merits of the Parties’ dispute.
In its Award, the Tribunal has held that both the Philippines and China are
parties to the Convention and bound by its provisions on the settlement of
disputes.
18. The Tribunal has also held that China’s decision not to participate in these
 proceedings does not deprive the Tribunal of jurisdiction and that the
Philippines’ decision to commence arbitration unilaterally was not an abuse
of the Convention’s dispute settlement procedures.
ISSUES:
1. WoN the Tribunal has jurisdiction over the Philippines’ claims – YES
because even though the Philippines' decision was to commence the
arbitration unilaterally, it was not an abuse of the Convention’s dispute
settlement procedures despite China’s refusal to participate in the
proceedings.
RATIO: The Tribunal has jurisdiction over the claims of the Philippines
Preliminary Matters
1. In its Award, the Tribunal noted that both the Philippines and China are
parties to the Convention and that the provisions for the settlement of
disputes, including through arbitration, form an integral part of the
Convention.
2. Although the Convention specifies certain limitations and exceptions to the
subject matter of the disputes that may be submitted to compulsory
settlement, it does not permit other reservations and a State may not except
itself generally from the Convention’s mechanism for the resolution of
disputes.
3. The Tribunal also noted China’s non-participation and held that this fact
does not deprive the Tribunal of Jurisdiction. Article 9 of Annex VII to the
Convention provides that:
a. Absence of a party or failure of a party to defend its case shall not
constitute a bar to the proceedings. Before making its award, the
arbitral tribunal must satisfy itself not only that it has jurisdiction
over the dispute but also that the claim is well founded in fact and
in law.
4. Although China did not participate in the constitution of the Tribunal, the
Tribunal held that it had been properly constituted pursuant to the
provisions of Annex VII to the Convention.
5. The Tribunal detailed the steps it had taken to satisfy itself regarding its
jurisdiction, including through questions posed to the Philippines and
through the Hearing on Jurisdiction and Admissibility in July 2015.
6. The Tribunal also recalled the steps it had taken to safeguard the procedural
rights of China, including by ensuring that all communications and
documents were delivered to China and that China was accorded adequate
notice and opportunity to comment and by reiterating that it remains open to
China to participate in the proceedings at any stage.
7. The Tribunal also recalled the steps it had taken to ensure that the
Philippines was not disadvantaged by China’s non-participation.
8. The Tribunal noted that, although certain provisions of the Convention
address the abuse of rights and provide a preliminary procedure to dismiss
claims that are facially unfounded, it was more appropriate to consider
China’s concerns about the Tribunal’s jurisdiction as a preliminary
objection.
9. The Tribunal also noted that the mere act of unilaterally initiating an
arbitration cannot constitute an abuse of the Convention.
Existence of a Dispute Concerning Interpretation and Application of the
Convention
10. The Tribunal next considered whether there is a dispute between the Parties
concerning the interpretation or application of the Convention, which is the
basis for the dispute settlement mechanisms of the Convention.
11. In so doing, the Tribunal considered two objections set out in China’s
Position Paper: first, that the Parties’ dispute is actually about sovereignty
over the islands of the South China Sea and therefore not a matter
concerning the Convention and, second, that the Parties’ dispute is actually
about the delimitation of the maritime boundary between them and
therefore excluded from dispute settlement by an exception set out in the
Convention that States choose to activate.
12. With respect to the former objection, the Tribunal noted that there is a
dispute between the Parties regarding sovereignty over islands but held that
the matters submitted to arbitration by the Philippines do not concern
sovereignty.
a. The Tribunal considered it to be expected that the Philippines and
China would have disputes regarding multiple subjects and noted
that a decision on the claims presented by the Philippines would
not require the Tribunal to decide sovereignty, explicitly or
implicitly, and did not appear to be intended to advance the
Philippines’ position with respect to sovereignty.
b. The Tribunal also emphasized that the Philippines had asked that it
not rule on sovereignty over the islands in the South China Sea.
13. With respect to the latter objection, the Tribunal noted that a dispute
concerning whether a State possesses an entitlement to a maritime zone is a
distinct matter from the delimitation of maritime zones in an area in which
they overlap.
a. Accordingly, the Tribunal held that the claims presented by the
Philippines do not concern sea boundary delimitation and are not,
therefore, subject to the exception to the dispute settlement
provisions of the Convention.
b. The Tribunal also emphasized that the Philippines had not asked it
to delimit any boundary.
14. In so doing, the Tribunal noted that it was necessary to address some
ambiguity regarding China’s position on the matters before it and recalled
that the existence of a dispute may be inferred from the conduct of a State,
or from silence, and is a matter to be determined objectively.
15. The Tribunal considered that each of the Philippines’ claims reflected a
 dispute concerning the Convention and noted in particular that a dispute
concerning the interaction between the Convention and other rights
(including any Chinese “historic rights”) is a dispute concerning the
Convention.
Involvement of Indispensable Third-Parties
16. With regard to the involvement of indispensable parties, the Tribunal noted
that this arbitration differs from past cases in which a court or tribunal has
found the involvement of a third-party to be indispensable. Because the
Tribunal will not rule on sovereignty, the rights of Viet Nam and other
States do not need to be determined before the Tribunal can proceed.
Preconditions to Jurisdiction
17. The Tribunal then considered the preconditions to jurisdiction set out in the
Convention. Although the dispute settlement mechanism of the Convention
provides for compulsory settlement, including through arbitration, it also
permits parties to agree on the settlement of disputes through alternative
means of their own choosing.
18. In this respect, the Tribunal held that the Philippines had sought to negotiate
with China and noted that it is well established that international law does
not require a State to continue negotiations when it concludes that the
possibility of a negotiated solution has been exhausted.
Exceptions and Limitations to Jurisdiction
19. Finally, the Tribunal examined the subject matter limitations to its
jurisdiction set out in Articles 297 and 298 of the Convention. The Tribunal
considered that the applicability of these limitations and exceptions may
depend upon certain aspects of the merits of the Philippines’ claims: .
a. First, the Tribunal’s jurisdiction may depend upon the
nature and validity of any claim by China to “historic rights” in the
South China Sea and whether such rights are covered by the
exclusion from jurisdiction of “historic bays or titles.”
b. Second, the Tribunal’s jurisdiction may depend upon the status of
certain maritime features in the South China Sea and whether the
Philippines and China possess overlapping entitlements to
maritime zones in the South China Sea. If so, the Tribunal may not
be able to reach the merits of certain claims because they would
first require a delimitation of the overlapping zones (which the
Tribunal is not empowered to do).
c. Third, the Tribunal’s jurisdiction may depend on the maritime zone
in which alleged Chinese law enforcement activities in fact took
place.
d. Fourth, the Tribunal’s jurisdiction may depend upon whether
certain Chinese activities are military in nature.
20. For the foregoing reasons, the Tribunal concluded that it was presently able
to rule that it has jurisdiction over certain of the claims brought by the
Philippines but that others were not exclusively preliminary and would be
deferred for further consideration in conjunction with the merits. In its
Award, the Tribunal reached a number of unanimous decisions.
Decisions of the Tribunal
21. The Tribunal:
a. FINDS that the Tribunal was properly constituted in accordance
with Annex VII to the Convention.
b. FINDS that China’s non-appearance in these proceedings does not
deprive the Tribunal of jurisdiction.
c. FINDS that the Philippines’ act of initiating this arbitration did not
constitute an abuse of process.
d. FINDS that there is no indispensable third party whose absence
deprives the Tribunal of jurisdiction.
e. FINDS that the 2002 China–ASEAN Declaration on Conduct of
the Parties in the South China Sea, the joint statements of the
Parties referred to in paragraphs 231 to 232 of this Award, the
Treaty of Amity and Cooperation in Southeast Asia, and the
Convention on Biological Diversity, do not preclude, under
Articles 281 or 282 of the Convention, recourse to the compulsory
dispute settlement procedures available under Section 2 of Part XV
of the Convention.
f. FINDS that the Parties have exchanged views as required by
Article 283 of the Convention.
g. FINDS that the Tribunal has jurisdiction to consider the
Philippines’ Submissions No. 3, 4, 6, 7, 10, 11, and 13, subject to
the conditions noted in paragraphs 400, 401, 403, 404, 407, 408,
and 410 of this Award.
h. FINDS that a determination of whether the Tribunal has
jurisdiction to consider the Philippines’ Submissions No. 1, 2, 5, 8,
9, 12, and 14 would involve consideration of issues that do not
possess an exclusively preliminary character, and accordingly
RESERVES consideration of its jurisdiction to rule on
Submissions No. 1, 2, 5, 8, 9, 12, and 14 to the merits phase.
i. DIRECTS the Philippines to clarify the content and narrow the
scope of its Submission 15 and RESERVES consideration of its
jurisdiction over Submission No. 15 to the merits phase.
j. RESERVES for further consideration and directions all issues not
decided in this Award.
 020 Del Monte v. CA (Presh)
February 7, 2001| Bellosillo, J. | Settlement of Disputes
PETITIONER: Del Monte Corporation-USA, Paul E. Derby, Jr., Daniel Collins
and Luis Hidalgo
RESPONDENTS: Court of Appeals, Judge Bienvenido L. Reyes in his capacity
as Presiding Judge, Montebueno Marketing, Inc., Liong Liong C. Sy and
Sabrosa Foods, Inc.
SUMMARY: Del Monte USA (DMC-USA) appointed Montebueno Marketing Inc
(MMI) as its sole and exclusive distributor of Del Monte products in the Philippines for 5
years. The contract contained an arbitration clause which provides that all disputes arising
out of or relating to the agreement or the parties’ relationship, including termination
thereof, shall be resolved by arbitration in San Francisco City, CA, under the Rules of the
American Arbitration Association
MMI’s appointment was published in several newspapers. MMI appointed Sabrosa Food
Inc with the approval of DMC-USA, as MMI’s marketing arm. Later, MMI and Sabrosa
filed a complaint against DMC-USA for violation of Arts. 20, 21 and 23 of the Civil
Code. MMI claims that DMC-USA authorised other importers of their products in the
Philippines despite MMI’s appointment as its sole and exclusive distributor, thereby
causing MMI great embarrassment and substantial damage.
Private respondents DMC-USA claimed that they had exhausted all possible avenues for
an amicable resolution and settlement of their grievances; that as a result of the fraud, bad
faith, malice and wanton attitude of petitioners, they should be held responsible for all the
actual expenses incurred by private respondents in the delayed shipment of orders, the
actual expenses and cost of money for the unused Letters of Credit (LCs) and the
substantial opportunity losses due to created out-of-stock situations and unauthorised
shipments of Del Monte-USA products to the Philippine Duty Free Area and Economic
zone
DMC-USA filed a Motion to Suspend Proceedings invoking the arbitration clause. RTC
denied this on the ground that it will not serve the ends of justice and to allow said
suspension will only delay the determination of the issues, frustrate the quest of the
parties for a judicious determination of their respective claims, and/or deprive and delay
their rights to seek redress.
Issue: WoN the dispute between the parties warrants an order compelling them to
submit to arbitration. – No. Although the arbitration clause is valid, the agreement
between the parties is a contract.
Arbitration is valid and constitutional in our jurisdiction. Even before the enactment of
DMC invokes RA 876 which provides that If any suit or proceeding be brought upon an
issue arising out of an agreement providing for arbitration thereof, the court, upon being
satisfied that the issue involved in such suit or proceeding is referable to arbitration, shall
stay the action or proceeding until an arbitration has been had in accordance with the
terms
of the agreement.
MMI and Sabrosa argue that since the causes of action are rooted in Art. 20, 21 and 23 of
the Civil Code, there must be full-blown trial, which cannot be had in an arbitration.
First, arbitration is valid and constitutional in the Philippines. RA 876 expressly
authorises arbitration of domestic disputes and recognises foreign arbitration as a system
of settling commercial disputes. The Philippines also recognised this when it adhered to
the UN Convention on the Recognition and the Enforcement of Foreign Arbitral Awards
of 1958.
Second, while the arbitration clause in the agreement between DMC and MMI is valid,
this petition must be denied. Since the agreement and the arbitration clause are contracts
between DMC and MMI, only they and their assignees or heirs are bound thereto.
Referral to arbitration pursuant to the agreement could be called for but only as to them,
not to the other parties to the case such as Sabrosa.
This is consistent with Salas v. Laperal which held that, (Doctrine).
DOCTRINE:
In recognising the right of the contracting parties to arbitrate or to compel arbitration, the
splitting of the proceedings to arbitration as to some of the parties on one hand and trial
for the others on the other hand, or the suspension of trial pending arbitration between
some of the parties, should not be allowed as it would, in effect, result in multiplicity of
suits, duplicitous procedure and unnecessary delay. This would be contrary to the object
of arbitration to allow the expeditious determination of a dispute.
FACTS:
1. On 1 July 1994, in a Distributorship Agreement, petitioner Del Monte Corporation-
USA (DMC-USA) appointed private respondent Montebueno Marketing, Inc.
(MMI) as the sole and exclusive distributor of its Del Monte products in the
Philippines for a period of five (5) years, renewable for two (2) consecutive five (5)
year periods with the consent of the parties. The Agreement provided, among others,
for an arbitration clause which states -
GOVERNING LAW AND ARBITRATION
This Agreement shall be governed by the laws of the State of California and/or, if
applicable, the United States of America. All disputes arising out of or relating to
this Agreement or the parties relationship, including the termination thereof, shall
be resolved by arbitration in the City of San Francisco, State of California, under
the Rules of the American Arbitration Association. The arbitration panel shall
consist of three members, one of whom shall be selected by DMC-USA, one of whom
shall be selected by MMI, and third of whom shall be selected by the other two
members and shall have relevant experience in the industry x x x x
2. In October 1994 the appointment of private respondent MMI as the sole and
exclusive distributor of Del Monte products in the Philippines was published in
several newspapers in the country. After its appointment, MMI appointed Sabrosa
Foods, Inc. (SFI), with the approval of petitioner DMC-USA, as MMI’s marketing
arm to concentrate on its marketing and selling function as well as to manage its
critical relationship with the trade.
3. On 3 October 1996 private respondents MMI, SFI and MMIs Managing Director
Liong Liong C. Sy (LILY SY) filed a Complaint against petitioners DMC-USA,
Paul E. Derby, Jr., Daniel Collins and Luis Hidalgo, and Dewey Ltd. before the
Regional Trial Court of Malabon, Metro Manila. Private respondents predicated
their complaint on the alleged violations by petitioners of Arts. 20, 21and 23 of the
Civil Code.
4. According to private respondents, DMC-USA products continued to be brought
into the country by parallel importers despite the appointment of MMI as the
sole and exclusive distributor of Del Monte products thereby causing them
great embarrassment and substantial damage. They alleged that the products
brought into the country by these importers were aged, damaged, fake or
counterfeit, so that in March 1995 they had to cause, after prior consultation with
Antonio Ongpin, Market Director for Special Markets of Del Monte Philippines,
Inc., the publication of a "warning to the trade" paid advertisement in leading
 newspapers. Petitioners DMC-USA and Paul E. Derby, Jr., apparently upset with the
publication, instructed private respondent MMI to stop coordinating with Antonio
Ongpin and to communicate directly instead with petitioner DMC-USA through
Paul E. Derby, Jr.
5. MMI further averred that DMC-USA knowingly and surreptitiously continued to
deal with the former in bad faith by involving disinterested third parties and by
proposing solutions which were entirely out of their control.
6. MMI claimed that they had exhausted all possible avenues for an amicable
resolution and settlement of their grievances; that as a result of the fraud, bad faith,
malice and wanton attitude of DMC-USA, they should be held responsible for all the
actual expenses incurred by private respondents in the delayed shipment of orders
which resulted in the extra handling thereof, the actual expenses and cost of money
for the unused Letters of Credit (LCs) and the substantial opportunity losses due to
created out-of-stock situations and unauthorized shipments of Del Monte-USA
products to the Philippine Duty Free Area and Economic Zone; that the bad faith,
fraudulent acts and willful negligence of petitioners, motivated by their
determination to squeeze private respondents out of the outstanding and ongoing
Distributorship Agreement in favor of another party, had placed private respondent
LILY SY on tenterhooks since then; and, that the shrewd and subtle manner with
which petitioners concocted imaginary violations by private respondent MMI of the
Distributorship Agreement in order to justify the untimely termination thereof was a
subterfuge. For the foregoing, private respondents claimed, among other reliefs, the
payment of actual damages, exemplary damages, attorney’s fees and litigation
expenses.
7. DMC-USA filed a Motion to Suspend Proceedings invoking the arbitration clause in
their Agreement with MMI.
8. The trial court deferred consideration of petitioners Motion to Suspend
Proceedings as the grounds alleged therein did not constitute the suspension of the
proceedings considering that the action was for damages with prayer for the issuance
of Writ of Preliminary Attachment and not on the Distributorship Agreement.
9. DMC-USA filed a Motion for Reconsideration to which MMI and Lily Sy filed
their Comment/Opposition. DMC-USA filed their Reply. Subsequently, private
respondents filed an Urgent Motion for Leave to Admit Supplemental Pleading dated
2 April 1997. This Motion was admitted, over petitioner’s opposition, in an Order of
the trial court dated 27 June 1997.
10. As a result of the admission of the Supplemental Complaint, DMC-USA filed on 22
July 1997 a Manifestation adopting their Motion to Suspend Proceedings of 17
October 1996 and Motion for Reconsideration of 14 January 1997.
11. On 11 November 1997 the Motion to Suspend Proceedings was denied by the trial
court on the ground that it "will not serve the ends of justice and to allow said
suspension will only delay the determination of the issues, frustrate the quest of the
parties for a judicious determination of their respective claims, and/or deprive and
delay their rights to seek redress."
12. On appeal, the CA affirmed the decision of the TC. It held that the alleged damaging
acts recited in the Complaint, constituting petitioners causes of action, required the
interpretation of Art. 21 of the Civil Code and that in determining whether
petitioners had violated it "would require a full blown trial" making arbitration "out
of the question." Petitioners Motion for Reconsideration of the affirmation was
denied. Hence, this Petition for Review.
ISSUE:
WoN the dispute between the parties warrants an order compelling them to submit to
arbitration. – No. Although the arbitration clause is valid, the agreement between the parties is
a contract.
RULING:
The petition is DENIED.
RATIO:
1. DMC-USA contend that the subject matter of MMI’s causes of action arises out of
or relates to the Agreement between DMC-USA and MMI. Thus, considering that
the arbitration clause of the Agreement provides that all disputes arising out of or
relating to the Agreement or the parties relationship, including the termination
thereof, shall be resolved by arbitration, they insist on the suspension of the
proceedings in Civil Case No. 2637-MN as mandated by Sec. 7 of RA 876 -
Sec. 7. Stay of Civil Action. If any suit or proceeding be brought upon an issue
arising out of an agreement providing for arbitration thereof, the court in which
such suit or proceeding is pending, upon being satisfied that the issue involved in
such suit or proceeding is referable to arbitration, shall stay the action or
proceeding until an arbitration has been had in accordance with the terms of the
agreement. Provided, That the applicant for the stay is not in default in proceeding
with such arbitration.
2. MMI claim, on the other hand, that their causes of action are rooted in Arts. 20, 21
and 23 of the Civil Code, the determination of which demands a full blown trial, as
correctly held by the CA. Moreover, they claim that the issues before the trial court
were not joined so that the Honorable Judge was not given the opportunity to satisfy
himself that the issue involved in the case was referable to arbitration.
3. They submit that, apparently, DMC-USA filed a motion to suspend proceedings
instead of sending a written demand to private respondents to arbitrate because
petitioners were not sure whether the case could be a subject of arbitration. They
maintain that had DMC-USA done so and MMI failed to answer the demand,
petitioners could have filed with the trial court their demand for arbitration that
would warrant a determination by the judge whether to refer the case to
arbitration. Accordingly, DMC-USA assert that arbitration is out of the question.
4. MMI further contend that the arbitration clause centers more on venue rather than on
arbitration. They finally allege that petitioners filed their motion for extension of
time to file this petition on the same date petitioner DMC-USA filed a petition to
compel private respondent MMI to arbitrate before the United States District Court
in Northern California, docketed as Case No. C-98-4446. They insist that the filing
of the petition to compel arbitration in the United States made the petition filed
before this Court an alternative remedy and, in a way, an abandonment of the cause
they are fighting for here in the Philippines, thus warranting the dismissal of the
present petition before this Court.
5. There is no doubt that arbitration is valid and constitutional in our jurisdiction. Even
before the enactment of RA 876, this Court has countenanced the settlement of
disputes through arbitration.
6. Unless the agreement is such as absolutely to close the doors of the courts
against the parties, which agreement would be void, the courts will look with
favor upon such amicable arrangement and will only interfere with great
reluctance to anticipate or nullify the action of the arbitrator.
7. Moreover, as RA 876 expressly authorizes arbitration of domestic disputes, foreign
arbitration as a system of settling commercial disputes was likewise recognized
when the Philippines adhered to the United Nations "Convention on the Recognition
and the Enforcement of Foreign Arbitral Awards of 1958" under the 10 May 1965
 Resolution No. 71 of the Philippine Senate, giving reciprocal recognition and
allowing enforcement of international arbitration agreements between parties of
different nationalities within a contracting state.
8. A careful examination of the instant case shows that the arbitration clause in the
Distributorship Agreement between DMC-USA and MMI is valid and the
dispute between the parties is arbitrable. However, this Court must deny the
petition.
9. The Agreement between DMC-USA and MMI is a contract. The provision to
submit to arbitration any dispute arising therefrom and the relationship of the
parties is part of that contract and is itself a contract. As a rule, contracts are
respected as the law between the contracting parties and produce effect as
between them, their assigns and heirs.
10. Clearly, only parties to the Agreement, i.e., petitioners DMC-USA and its Managing
Director for Export Sales Paul E. Derby, Jr., and private respondents MMI and its
Managing Director LILY SY are bound by the Agreement and its arbitration
clause as they are the only signatories thereto.
11. Petitioners Daniel Collins and Luis Hidalgo, and private respondent SFI, not parties
to the Agreement and cannot even be considered assigns or heirs of the parties, are
not bound by the Agreement and the arbitration clause therein.
12. Consequently, referral to arbitration in the State of California pursuant to the
arbitration clause and the suspension of the proceedings in Civil Case No. 2637-MN
pending the return of the arbitral award could be called for but only as to petitioners
DMC-USA and Paul E. Derby, Jr., and private respondents MMI and LILY SY, and
not as to the other parties in this case, in accordance with the recent case of Heirs of
Augusto L. Salas, Jr. v. Laperal Realty Corporation, which superseded that
of Toyota Motor Philippines Corp. v. Court of Appeals.
13. In Toyota, the Court ruled that "[t]he contention that the arbitration clause has
become dysfunctional because of the presence of third parties is untenable
ratiocinating that "[c]ontracts are respected as the law between the contracting
parties"and that "[a]s such, the parties are thereby expected to abide with good
faith in their contractual commitments."
14. However, in Salas, Jr., only parties to the Agreement, their assigns or heirs have
the right to arbitrate or could be compelled to arbitrate. The Court went
further by declaring that in recognizing the right of the contracting parties to
arbitrate or to compel arbitration, the splitting of the proceedings to
arbitration as to some of the parties on one hand and trial for the others on the
other hand, or the suspension of trial pending arbitration between some of the
parties, should not be allowed as it would, in effect, result in multiplicity of
suits, duplicitous procedure and unnecessary delay.
15. The object of arbitration is to allow the expeditious determination of a dispute.
Clearly, the issue before us could not be speedily and efficiently resolved in its
entirety if we allow simultaneous arbitration proceedings and trial, or suspension of
trial pending arbitration. Accordingly, the interest of justice would only be served if
the trial court hears and adjudicates the case in a single and complete proceeding.
 021 LM POWER v. CAPITOL (CASTRO)
March 26, 2003 | Panganiban, J. | Settlement of Disputes
PETITIONER: LM Power Engineering Corporation
RESPONDENTS: Capitol Industrial Construction groups inc.
SUMMARY: LM power and Capitol industrial entered into a subcontract
agreement. Capitol industrial took over some of the work contracted to LM Power.
Allegedly, LM power had failed to finish its work because of its inability to procure
materials. Upon fulfillment of the contract, LM Power billed Capitol industrial in the
amount of 6.8 million. Capitol now is contesting the said billable amount by saying
that it took over some of the tasks that should have been performed by LM Power
and that there should have been a set-off as to the unfinished work continued by
Capitol. Because of Capitol’s refusal to pay LM power brought the case to the RTC
and Capitol filed a motion to dismiss on the ground of failure to submit the case for
arbitration which is a condition precedent. RTC denied the Motion to dismiss and
ruled on the merits ordering Capitol to pay LM power. CA reversed the decision by
saying the case should have been first submitted to the arbitration as manifested in
the arbitral clause. When the petition reached the SC the issues were: a.) WoN the
controversies should be subject to arbitration – Yes, because the controversies
involve the interpretation of the subcontract agreement which require the technical
expertise of the arbitral body and b.) WoN it complied with the arbitration
requirements – Yes jurisprudence provides that the inclusion of the arbitral clause is
a manifestation of good faith to submit the disputes covered by arbitration
DOCTRINE:
Main take-away
The instant case involves technical discrepancies that are better left to an arbitral
body that has expertise in those areas. In any event, the inclusion of an arbitration
clause in a contract does not ipso facto divest the courts of jurisdiction to pass upon
the findings of arbitral bodies, because the awards are still judicially reviewable
under certain conditions.
Arbitration in relation to international law
Being an inexpensive, speedy and amicable method of settling disputes, arbitration
along with mediation, conciliation and negotiation is encouraged by the Supreme
Court. Aside from unclogging judicial dockets, arbitration also hastens the resolution
of disputes, especially of the commercial kind.
It is thus regarded as the "wave of the future" in international civil and commercial
disputes. Brushing aside a contractual agreement calling for arbitration between the
parties would be a step backward.
FACTS:
1. Petitioner LM Power Engineering Corporation and Respondent Capitol
Industrial Construction Groups Inc. entered into a "Subcontract Agreement"
involving electrical work at the Third Port of Zamboanga.
2. Capitol industrial took over some of the work contracted to LM Power.
Allegedly, the latter had failed to finish it because of its inability to procure
materials.
3. Upon completing its task under the contract, LM Power billed Capitol
industrial in the amount of 6.8 million. Contesting the accuracy of the
amount of advances and billable accomplishments listed by the former, the
latter refused to pay.
4. Capitol industrial also took refuge in the termination in the termination
clause of the agreement. That clause allowed it to set off the cost of the
work that LM Power had failed to undertake – due to the termination or
take over – against the amount it owed to Capitol
5. Because of the dispute and Capitol’s refusal to pay, LM Power filed with
the RTC of Makati a complaint for sum of money representing the alleged
balance due it under the subcontract
6. Instead of submitting an answer Capitol filed a motin to dismiss alleging
that the complaint was premature, because there was no prior recourse
to arbitration
7. RTC denied the Motion on the ground that the dispute did not involve the
interpretation or the implementation of the Agreement and was, therefore,
not covered by the arbitral clause.
8. Then RTC ruled on the merits that the take-over of some work items by
respondent Capitol industrial was not equivalent to a termination, but a
mere modification, of the Subcontract. Capitol was ordered to give full
payment for the work completed by petitioner.
9. On appeal, the CA reversed the RTC and ordered the referral of the case to
arbitration. The appellate court held as arbitrable the issue of whether
Capitol’s take-over of some work items had been intended to be a
termination of the original contract
10. Hence this petition of LM power before the SC contending that it should not
be submitted for arbitration
ISSUE/s:
1. WoN there exists a controversy or dispute between LM Power and Capitol
regarding the implementation of the subcontract that requires arbitration – Yes, the
issues should be submitted for arbitration
2.WoN the requirements for arbitration are complied with – Yes, it was complied it.
The petitioner relied on an old rule which was already modified
RULING: WHEREFORE, the Petition is DENIED and the assailed Decision
AFFIRMED. Costs against petitioner.
RATIO:
ISSUE 1: THE CASE IS SUBJECT TO A CONTROVERSY WHICH SHOULD BE
SUBMITTED FOR ARBITRATION
1. LM Power claims that there is no conflict regarding the interpretation or the
implementation of the Agreement. Thus, without having to resort to prior
arbitration, it is entitled to collect the value of the services it rendered
through an ordinary action for the collection of a sum of money from
Capitol
2. On the other hand, Capitol contends that there is a need for prior arbitration
as provided in the Agreement. This is because there are some disparities
between the parties’ positions regarding the extent of the work done, the
amount of advances and billable accomplishments, and the set off of
expenses incurred by respondent in its take-over of petitioner’s work.
3. The court is in favor of Capitol in this argument. Essentially, the dispute
arose from the parties’ ncongruent positions on whether certain provisions
of their Agreement could be applied to the facts. The instant case involves
technical discrepancies that are better left to an arbitral body that has
expertise in those areas. In any event, the inclusion of an arbitration
clause in a contract does not ipso facto divest the courts of jurisdiction
to pass upon the findings of arbitral bodies, because the awards are still
judicially reviewable under certain conditions.
4. The subcontract has following arbitral clause
a. "The Parties hereto agree that any dispute or conflict as regards to
interpretation and implementation of this Agreement which cannot
be settled between [respondent] and [petitioner] amicably shall be
settled by means of arbitration x x x."
5. Clearly, the resolution of the dispute between the parties herein requires a
referral to the provisions of their Agreement. Within the scope of the
arbitration clause are discrepancies as to the amount of advances and
billable accomplishments, the application of the provision on termination,
and the consequent set-off of expenses.
6. A review of the factual allegations of the parties reveals that they differ on
the following questions:
a. Did a take-over/termination occur?
b. May the expenses incurred by Capitol in the take-over be set off
against the amounts it owed LM Power
c. How much were the advances and billable accomplishments?
7. Some of the issues in the contract that should be resolved are as follows:
a. Time Schedule
b. Issue on termination of agreement and take-over
c. Contract price and terms of payment
d. Imported materials and equipment
8. Being an inexpensive, speedy and amicable method of settling disputes,
arbitration along with mediation, conciliation and negotiation is
encouraged by the Supreme Court. Aside from unclogging judicial
dockets, arbitration also hastens the resolution of disputes, especially of the
commercial kind.
9. It is thus regarded as the "wave of the future" in international civil and
commercial disputes. Brushing aside a contractual agreement calling
for arbitration between the parties would be a step backward.
ISSUE 2: AS TO THE COMPLIANCE WITH THE ARBITRATION
REQUIREMENTS
1. According to LM power, assuming arguendo that the dispute is arbitrable,
the failure to file a formal request for arbitration with the Construction
Industry Arbitration Commission (CIAC) precluded the latter from
acquiring jurisdiction over the question.
2. The court is not persuaded. LM power used the old rules governing
construction arbitration29. LM power failed to consider the new rules of
procedure governing construction arbitration which states:
a. "SECTION 1. Submission to CIAC Jurisdiction — An arbitration
clause in a construction contract or a submission to arbitration of a
construction dispute shall be deemed an agreement to submit an
existing or future controversy to CIAC jurisdiction,
notwithstanding the reference to a different arbitration institution
or arbitral body in such contract or submission. When a contract
contains a clause for the submission of a future controversy to
arbitration, it is not necessary for the parties to enter into a
submission agreement before the claimant may invoke the
jurisdiction of CIAC."
3. he difference in the two provisions was clearly explained in China Chang
Jiang Energy Corporation (Philippines) v. Rosal Infrastructure Builders et
al
a. "Under the present Rules of Procedure, for a particular
construction contract to fall within the jurisdiction of CIAC, it is
merely required that the parties agree to submit the same to
voluntary arbitration Unlike in the original version of Section
1, as applied in the Tesco case, the law as it now stands does not
provide that the parties should agree to submit disputes arising
from their agreement specifically to the CIAC for the latter to
acquire jurisdiction over the same. Rather, it is plain and clear
that as long as the parties agree to submit to voluntary arbitration,
regardless of what forum they may choose, their agreement will
29 OLD RULE:
"SECTION. 1. Submission to Arbitration -- Any party to a construction
contract wishing to have recourse to arbitration by the Construction
Industry Arbitration Commission (CIAC) shall submit its Request for
Arbitration in sufficient copies to the Secretariat of the CIAC;
PROVIDED, that in the case of government construction contracts, all
administrative remedies available to the parties must have been
exhausted within 90 days from the time the dispute arose."
 fall within the jurisdiction of the CIAC, such that, even if they
specifically choose another forum, the parties will not be precluded
from electing to submit their dispute before the CIAC because this
right has been vested upon each party by law, i.e., E.O. No. 1008."
4. The arbitral clause in the Agreement is a commitment on the part of the
parties to submit to arbitration the disputes covered therein. Because that
clause is binding, they are expected to abide by it in good faith. And
because it covers the dispute between the parties in the present case, either
of them may compel the other to arbitrate.
5. Since petitioner has already filed a Complaint with the RTC without
prior recourse to arbitration, the proper procedure to enable the CIAC
to decide on the dispute is to request the stay or suspension of such
action, as provided under RA 876 [the Arbitration Law].
 022 Frabelle v. Philamlife (CELAJE)
G.R. No. 158560 | August 17, 2007 | Sandoval-Gutierrez, J.
PETITIONER: FRABELLE FISHING CORPORATION
RESPONDENTS: THE PHILIPPINE AMERICAN LIFE INSURANCE
COMPANY, PHILAM PROPERTIES CORPORATION AND PERF REALTY
CORPORATION
SUMMARY: Respondent corporations entered into a Memorandum of
Agreement (1996 MOA) whereby each agreed to contribute cash, property, and
services for the construction and development of Philamlife Tower, a 45-storey
office condominium along Paseo de Roxas, Makati City. They assigned to
Frabelle Properties Corporation (Frabelle) their rights and obligations under the
1996 MOA with respect to the construction, development, and subsequent
ownership of Unit No. 38-B located at the 38th floor of Philamlife Tower.
Frabelle Properties then assigned such rights to herein petitioner Frabelle
Fishing. Eventually the dispute between the parties started when petitioner
Frabelle found material concealment on the part of respondent corporations
regarding certain details in the 1996 DOA and 1998 MOA and their gross
violation of their contractual obligations as condominium developers. Petitioner
Frabelle Fishing then referred the matter to the Philippine Dispute Resolution
Center, Inc. (PDRCI) for arbitration in accordance with a provision in the
MOA. However, in a letter dated November 7, 2001, respondent corporations
manifested their refusal to submit to PDRCI’s jurisdiction.
Issue: W/N respondent corporations can refuse to submit to the jurisdiction of
the PDRCI for arbitration? NO. Paragraph 4.2 of the 1998 MOA mandates that
any dispute between or among the parties "shall finally be settled by
arbitration conducted in accordance with the Rules of Conciliation and
Arbitration of the International Chamber of Commerce." Petitioner
Frabelle referred the dispute to the PDRCI but respondent corporations refused
to submit to its jurisdiction. It bears stressing that such arbitration agreement is
the law between the parties. They are, therefore, expected to abide by it in good
faith.
DOCTRINE: This Court has previously held that arbitration is one of the
alternative methods of dispute resolution that is now rightfully vaunted as "the
wave of the future" in international relations and is recognized worldwide.
To brush aside a contractual agreement calling for arbitration in case of
disagreement between the parties would therefore be a step backward.
FACTS:
56. Philam Properties Corporation, Philippine American Life Insurance
Company, and PERF Realty Corporation, herein respondents, are all
corporations duly organized and existing under Philippine laws.
57. On May 8, 1996, respondent corporations entered into a Memorandum of
Agreement (1996 MOA)2 whereby each agreed to contribute cash, property,
and services for the construction and development of Philamlife Tower, a
45-storey office condominium along Paseo de Roxas, Makati City.
58. On December 6, 1996, respondent corporations executed a Deed of
Assignment (1996 DOA)3 wherein they assigned to Frabelle Properties
Corporation (Frabelle) their rights and obligations under the 1996 MOA
with respect to the construction, development, and subsequent ownership of
Unit No. 38-B located at the 38th floor of Philamlife Tower.
59. The parties also stipulated that the assignee shall be deemed as a co-
developer of the construction project with respect to Unit No. 38-B.
60. Frabelle, in turn, assigned to Frabelle Fishing Corporation (Frabelle
Fishing), petitioner herein, its rights, obligations and interests over Unit No.
38-B.
61. On March 9, 1998, petitioner Frabelle Fishing and respondent corporations
executed a Memorandum of Agreement (1998 MOA) to fund the
construction of designated office floors in Philamlife Tower.
62. The dispute between the parties started when petitioner Frabelle found
material concealment on the part of respondent corporations regarding
certain details in the 1996 DOA and 1998 MOA and their gross violation of
their contractual obligations as condominium developers.
63. These violations are: (a) the non-construction of a partition wall between
Unit No. 38-B and the rest of the floor area; and (b) the reduction of the net
usable floor area from four hundred sixty eight (468) square meters to only
three hundred fifteen (315) square meters.
64. Dissatisfied with its existing arrangement with respondent corporations,
petitioner Frabelle, on October 22, 2001, referred the matter to the
Philippine Dispute Resolution Center, Inc. (PDRCI) for
arbitration. However, in a letter dated November 7, 2001, respondent
corporations manifested their refusal to submit to PDRCI’s jurisdiction.
65. On February 11, 2002, petitioner Frabelle filed with the HLURB Expanded
National Capital Region Field Office a complaint for reformation of
instrument, specific performance and damages against respondent
corporations. Petitioner Frabelle alleged, among others, that the contracts do
not reflect the true intention of the parties; and that it (Frabelle) is a mere
buyer and not co-developer and/or co-owner of the condominium unit.
66. After considering their respective memoranda, HLURB Arbiter Atty.
Dunstan T. San Vicente, with the approval of HLURB Regional Director
Jesse A. Obligacion, issued an Order dated May 14, 2002, which reads:
Respondent corporations' plea for dismissal denied.
67. Respondent corporations then filed with the Court of Appeals a petition for
 prohibition with prayer for the issuance of a temporary restraining order respectively, of a condominium unit and not as co-developer and/or co-
owner of the same;
and/or writ of preliminary injunction.
19. We hold that being an action for reformation of instruments, petitioner Frabelle’s complaint
68. Respondent corporations claimed, among others, that the HLURB has no necessarily falls under the jurisdiction of the Regional Trial Court pursuant to Section 1, Rule
jurisdiction over the subject matter of the controversy and that the contracts 63 of the 1997 Rules of Civil Procedure, as amended, which provides: action for reformation
between the parties provide for compulsory arbitration. of an instrument is to be brought in the appropriate RTC.
20. As correctly held by the CA, any disagreement as to the nature of the parties’ relationship
69. On December 2, 2002, the Court of Appeals rendered its Decision granting which would require first an amendment or reformation of their contract is an issue which the
respondent corporations' petition, thus: HLURB enjoined/prohibited from courts may and can resolve without the need of the expertise and specialized knowledge of the
proceeding with the case. HLURB.

70. In dismissing petitioner Frabelle’s complaint, the Court of Appeals held that
the HLURB has no jurisdiction over an action for reformation of contracts.
The jurisdiction lies with the Regional Trial Court. MR denied.
71. Hence, the instant petition for review on certiorari.
ISSUES:
2. W/N the HLURB has jurisdiction over the complaint for reformation of
instruments, specific performance and damages. (not relevant issue);
3. W/N the parties should initially resort to arbitration. YES. Both parties
stipulated in the MOA that any disputes between the parties regarding the
MOA should be settled by arbitration conducted in accordance with the
Rules of Conciliation and Arbitration of the International Chamber of
Commerce. Thus respondent corporations cannot refuse the jurisdiction of
the PDRCI.
21. Relevant Issue
22. With regard to the second and last issue, paragraph 4.2 of the 1998 MOA
mandates that any dispute between or among the parties "shall finally be
settled by arbitration conducted in accordance with the Rules of
Conciliation and Arbitration of the International Chamber of
Commerce." Petitioner Frabelle referred the dispute to the PDRCI but
respondent corporations refused to submit to its jurisdiction.
23. It bears stressing that such arbitration agreement is the law between the
parties. They are, therefore, expected to abide by it in good faith.
24. This Court has previously held that arbitration is one of the alternative
methods of dispute resolution that is now rightfully vaunted as "the wave of
the future" in international relations, and is recognized worldwide.
25. To brush aside a contractual agreement calling for arbitration in case of
disagreement between the parties would therefore be a step backward.

RULING: WHEREFORE, we DENY the petition. The challenged Decision and

Resolution of the Court of Appeals in CA-G.R. SP No. 71389 are AFFIRMED.

RATIO:
16. The petition lacks merit.
17. Non-Relevant Issue
18. As the records show, the complaint filed by petitioner Frabelle with the HLURB is one
for reformation of instruments. Petitioner Frabelle claimed that the terms of the contract are
not clear and prayed that they should be reformed to reflect the true stipulations of the parties.
Petitioner Frabelle prayed:
a. WHEREFORE, in view of all the foregoing, it is respectfully prayed of this
Honorable Office that after due notice and hearing, a judgment be please rendered:
i. 1. Declaring that the instruments executed by the complainant
FRABELLE and respondent PHILAM to have been in fact a Contract to
Sell. The parties are thereby governed by the provisions of P.D. 957
entitled, "Regulating the Sale of Subdivision Lots and Condominiums,
Providing Penalties for Violations Thereof" as buyer and developer,
 023 Gonzales v. Hon. Pimentel (Coscolluela)
January 22, 2007 | Tinga, J. | Settlement of Disputes
G.R. No. 161957
PETITIONER: Jorge Gonzales and Panel of Arbitrators
RESPONDENTS: Climax Mining Ltd., Climax-Arimco Mining Corp., and
Australasian Philippines Inc.
G.R. No. 167994
PETITIONER: Jorge Gonzales
RESPONDENTS: Hon. Oscar B. Pimentel, in his capacity as Presiding Judge
of Br. 148 of the Regional Trial Court of Makati City and Climax-Arimco
Mining Corp.
FACTS:
SUMMARY: The case started when Gonzales and Climax entered into an
agreement and then a subsequent Addendum Contract which included an
arbitration clause. In the first case, the Supreme Court said that the DENR Panel
of Abitrators had no jurisdiction over the complaint for the annulment of the
Addendum Contract. While the same was pending, a second case was filed by
Climax. Dispute arouse when Climax tried to compel Gonzales into arbitration.
According to Gonzales, because the Addendum Contract was null and void and
that because Climax was guilty of fraud, the arbitration clause in the said
contract was also void. Climax on the otherhand argued that an application to
compel arbitration under RA 876 confers on the trial court only a limited and
special jurisdiction – to pass upon the issue of whether there is or there is no
agreement in writing providing for arbitration and in the affirmative, the statute
ordains that the court issue an order “summarily directing them to proceeding
with the arbitration”. It also argues that Gonzales’ attack on the Addendum
Contract is not a ground to deny arbitration because the arbitration clause is
separate and severable from the contract evidencing the parties’ commercial or
economic transactions. The issue is WoN it was proper for the RTC to order the
parties to arbitrate even though the Gonzales has raised the twin issues of
validity and nullity of the Addendum Contract and consequently, of the
arbitration clause. The SC held that YES. Disputes do not go to arbitration unless
and until the parties have agreed to abide by the arbitrator’s decision.
Necessarily, a contract is required for arbitration to take place and to be binding.
Implicit in the summary nature of the judicial proceedings is the separable or
independent character of the arbitration clause or agreement. The doctrine of
separability, or severability as other writers call it, enunciates that an arbitration
agreement is independent of the main contract. The arbitration agreement is to be
treated as a separate agreement and the arbitration agreement does not
automatically terminate when the contract of which it is part comes to an end.
The doctrine denotes that the invalidity of the main contract, also referred to as
the container” contract, does not affect the validity of the arbitration agreement.
Irrespective of the fact that the main contract is invalid, the arbitration
clause/agreement still remains valid and enforceable. With that said, the first
case must be deemed modified. The Supreme Court now holds that the validity
of the contract containing the agreement to submit to arbitration does not affect
the applicability of the arbitration clause itself. A contrary ruling would suggest
that a party’s mere repudiation of the main contract is sufficient to avoid
arbitration. That is exactly the situation that the separability doctrine, as well as
jurisprudence applying it, seeks to avoid.
DOCTRINE: The doctrine of separability enunciates that an arbitration
agreement is independent of the main contract. The arbitration agreement is to be
treated as a separate agreement and the arbitration agreement does not
automatically terminate when the contract of which it is part comes to an end.
366. There were two cases
a. In the first case, the Supreme Court in its Decision denied the Rule
45 petition of Jorge Gonzales. It held that the DENR Panel of
Arbitrators had no jurisdiction over the complaint for the
annulment of the Addendum Contract.
b. In his MR, Gonzales argued that the case involved a mining
dispute that properly fell within the ambit of the Panel’s authority.
c. Climax Mining Ltd., et al., on the other hand filed a partial MR
seeking reconsideration of that part of the Decision holding that the
case should not be brought for arbitration under RA 876
(Arbitration Law).
i. They also argue that the arbitration clause in the
Addendum Contract should be treated as an agreement
independent of the other terms of the conract
ii. They also argued that the alleged invalidity of the said
contract has yet to be adjudicated in a separate action, that
is, an action separate from the motion to compel
arbitration
iii. In holding that the case could not be brought in
arbitration, the Court in effect allowed the repudiation of
the contract or mere allegation of its invalidity to avoid
arbitration.
iv. Therefore, the Decision should be construed as operative
only where the challenge to the arbitration agreement has
been sustained by final judgment
d. The second case (Rule 65) petition) was filed while the MRs for
the first case were pending. The case stemmed from the petition of
Climax to compel arbitration. After sending a demand for
arbitration, the petition for arbitration was subsequently filed.
e. Gonzales argued that the Addendum Contract was void because of
Climax’s acts of fraud, oppression and violation of the
Constitution.
 f. Climax then filed a Motion to Inhibit Judge Benito and such was
granted. The case was raffled then to the sala of Judge Pimentel.
g. Climax subsequently filed an MR arguing RA 876 does not
authorize a pre-trial or trial for a motion to compel arbitration. The
same was granted.
h. So, Gonzales challenged the orders of the RTC requiring him to
proceed with the arbitration proceedings under a Rule 65 petition
alleging GADALEJ
i. He argues that the outline of procedure found in law to be
followed in petitions to compel arbitration was not
followed by the RTC.
ii. That any issue as to the nullity of the arbitration clause
must be determined by the court prior to referring them to
arbitration
i. Climax on the otherhand argued that an application to compel
arbitration under RA 876 confers on the trial court only a limited
and special jurisdiction – to pass upon the issue of whether there is
or there is no agreement in writing providing for arbitration and in
the affirmative, the statute ordains that the court issue an order
“summarily directing them to proceeding with the arbitration”
j. It also argues that Gonzales’ attack on the Addendum Contract is
not a ground to deny arbitration because the arbitration clause is
separate and severable from the contract evidencing the parties’
commercial or economic transactions.
367. The cases were consolidated.
368. Hence, this case.
ISSUE/s:
1. WoN it was proper for the RTC to order the parties to arbitrate even though
the Gonzales has raised the twin issues of validity and nullity of the
Addendum Contract and consequently, of the arbitration clause – YES
attack on the Addendum Contract is not a ground to deny arbitration
because the arbitration clause is separate and severable from the contract
evidencing the parties’ commercial or economic transactions.
RULING: WHEREFORE, the Petition for Certiorari in G.R. No. 167994 is
DISMISSED. Such dismissal effectively renders superfluous formal action on the
Motion for Partial Reconsideration and/or Clarification filed by Climax Mining Ltd.,
et al. in G.R. No. 161957.
The Motion for Reconsideration filed by Jorge Gonzales in G.R. No. 161957 is
DENIED WITH FINALITY.
SO ORDERED.
RATIO:
381. Arbitration, as an alternative mode of settling disputes, has long been
recognized and accepted in our jurisdiction. The Civil Code is explicit on
the matter

382. Foreign arbitration, as a system of settling commercial disputes of an
international character, was likewise recognized when the Philippines
adhered to the United Nations Convention on the Recognition and the
Enforcement of Foreign Arbitral Awards of 1958
383. The enactment of R.A. No. 9285 on 2 April 2004 further institutionalized
the use of alternative dispute resolution systems, including arbitration, in
the settlement of disputes.
384. Disputes do not go to arbitration unless and until the parties have agreed to
abide by the arbitrator’s decision. Necessarily, a contract is required for
arbitration to take place and to be binding.
385. A submission to arbitration is a contract. A clause in a contract providing
that all matters in dispute between the parties shall be referred to arbitration
is a contract and that the provision to submit to arbitration any dispute
arising therefrom, and the relationship of the parties is part of that contract
and is itself a contract.
386. R.A. No. 876 explicitly confines the court’s authority only to the
determination of whether or not there is an agreement in writing providing
for arbitration. In the affirmative, the statute ordains that the court shall
issue an order summarily directing the parties to proceed with the
arbitration in accordance with the terms thereof. If the court, upon the other
hand, finds that no such agreement exists, the proceeding shall be
dismissed.
387. Implicit in the summary nature of the judicial proceedings is the separable
or independent character of the arbitration clause or agreement.
388. The doctrine of separability, or severability as other writers call it,
enunciates that an arbitration agreement is independent of the main contract.
The arbitration agreement is to be treated as a separate agreement and the
arbitration agreement does not automatically terminate when the contract of
which it is part comes to an end
389. The doctrine denotes that the invalidity of the main contract, also referred to
as the container” contract, does not affect the validity of the arbitration
agreement. Irrespective of the fact that the main contract is invalid, the
arbitration clause/agreement still remains valid and enforceable.
390. The separability of the arbitration clause is confirmed in Art. 16(1) of the
UNCITRAL Model Law and Art. 21(2) of the UNCITRAL Arbitration
Rules. In fact in the case of Prima Paint, “arbitration clauses are separable
from the contracts in which they are embedded, and that where no claim is
made that fraud was directed to the arbitration clause itself, a broad
arbitration clause will be held to encompass arbitration of the claim that the
contract itself was induced by fraud.”
391. Therefore, Gonzales’s argument that the Addendum Contract is null and
void and, therefore the arbitration clause therein is void as well, is not
tenable.
392. First, the proceeding in a petition for arbitration under R.A. No. 876 is
limited only to the resolution of the question of whether the arbitration
agreement exists. Second, the separability of the arbitration clause from the
Addendum Contract means that validity or invalidity of the Addendum
Contract will not affect the enforceability of the agreement to arbitrate.
Thus, Gonzales’ petition for certiorari should be dismissed.
393. With that said, the first case must be deemed modified. The Supreme Court
now holds that the validity of the contract containing the agreement to
submit to arbitration does not affect the applicability of the arbitration
clause itself. A contrary ruling would suggest that a party’s mere
repudiation of the main contract is sufficient to avoid arbitration. That is
exactly the situation that the separability doctrine, as well as jurisprudence
applying it, seeks to avoid.
 024 RCBC v. BDO (Cruz)
December 10, 2012 | Villarama, Jr., J. | Settlement of Disputes
G.R. No. 196171
PETITIONER: RCBC Capital Corporation
RESPONDENTS: Banco de Oro UniBank, Inc.
G.R. No. 199238
PETITIONER: Banco de Oro UniBank, Inc.
RESPONDENTS: Court of Appeals adn RCBC Capital Corporation
SUMMARY:
RCBC entered into a Share Purchase Agreement (SPA) with Equitable-PCI
Bank, Inc.(EPCIB), George L. Go and the individual shareholders of Bankard,
Inc. (Bankard) for the sale to RCBC of 226,460,000 shares (Subject Shares) of
Bankard. RCBC informed EPCIB and the other selling shareholders of an
overpayment of the subject shares, claiming there was an overstatement of
valuation of accounts amounting to P478 million and that the sellers violated
their warranty. RCBC commenced arbitration proceedings with the ICC-ICA in
accordance with Section 10 of the SPA. ICC asked them to advance cost of
$350K. RCBC paid. But respondent did not pay assailing disproportionate share
because RCBC has way greater claim. RCBC paid the share of BDO in the cost.
RCBC filed an Application for Reimbursement of Advance on Costs Paid,
praying for the issuance of a partial award directing the Respondents to
reimburse its payment in the amount of US$290,000 representing Respondents’
FACTS:
share in the Advance on Costs and to consider Respondents’ counterclaim for
actual damages in the amount of US$300,000,and moral and exemplary damages
as withdrawn for their failure to pay their equal share in the advance on costs.
BDO Opposed on the ground that the Arbitration Tribunal has lost its objectivity
in an unnecessary litigation over the payment of Respondents’ share in the
advance costs. They pointed out that RCBC’s letter merely asked that
Respondents be declared as in default for their failure to pay advance costs as
that RCBC had no intention of litigating for the advance costs. Respondents
reiterated their position that Article 30(3) envisions a situation whereby a party
would refuse to pay its share on the advance on costs and provides a remedy
therefor – the other party "shall be free to pay the whole of the advance on
costs." Such party’s reimbursement for payments of the defaulting party’s share
depends on the final arbitral award where the party liable for costs would be
determined. This is the only remedy provided by the ICC Rules Arbitration
Tribunal rendered the Second Partial Award EPCIB filed a Motion to Vacate
Second Partial Award and RCBC filed in the same court a Motion to Confirm
Second Partial Award. Makati City RTC confirmed the Second Partial Award
and denied EPCIB’s motion to vacate the same. EPCIB appealed to CA. Acting on a
petition for certiorari, the Court of Appeals reversed the order of the lower court
and set aside the second partial award.
The issue in the case is WoN there is a legal ground to vacate the Second Partial
Award. The Court ruled in the affirmative. Evident partiality is not defined in
our arbitration laws. The Court adopts the reasonable impression of partiality
standard. In this case, even before the issuance of the Second Partial Award for
the reimbursement of advance costs paid by RCBC, Chairman Barker
exhibited strong inclination to grant such relief to RCBC, notwithstanding
his categorical ruling that the Arbitration Tribunal "has no power under the ICC
Rules to order the Respondents to pay the advance on costs sought by the ICC or
to give the Claimantany relief against the Respondents’ refusal to pay." That
Chairman Barker was predisposed to grant relief to RCBC was shown by his act
of interpreting RCBC’s letter, which merely reiterated its plea to declare the
Respondents in default and consider all counterclaims withdrawn – as what the
ICC Rules provide – as an application to the Arbitration Tribunal to issue a
partial award in respect of BDO’s failure to share in the advance costs despite
RCBC in said letter did not contemplate the issuance of a partial order.
DOCTRINE: the reasonable impression of partiality standard, which requires a
showing that a reasonable person would have to conclude that an arbitrator
was partial to the other party to the arbitration: a)Such interest or bias
must be direct, definite and capable of demonstration rather than remote,
uncertain, or speculative and b) When a claim of arbitrator’s evident
partiality is made, the court must ascertain from such record as is available
whether the arbitrators’ conduct was so biased and prejudiced as to destroy
fundamental fairness.
369. This case involves two consolidated petitions separately filed by the parties
in an arbitration case administered by the International Chamber of
Commerce-International Court of Arbitration (ICC-ICA) pursuant to the
arbitration clause in their contract.
370. In G.R. No. 196171, a petition for review under Rule 45
a. RCBC Capital Corporation (RCBC) seeks to reverse the Court of
Appeals (CA) Decision which reversed and set aside the Order of
the Regional Trial Court (RTC) of Makati City.
371. In G.R. No. 199238,a petition for certiorari under Rule 65
a. Banco De Oro Unibank, Inc. (BDO) assails the Resolution of CA’s
decision which denied BDO’s application for the issuance of a stay
order and/or temporary restraining order (TRO)/preliminary
injunction against the implementation of the Writ of Execution
issued by the Makati City RTC.
372. RCBC entered into a Share Purchase Agreement (SPA) with Equitable-PCI
Bank, Inc. (EPCIB), George L. Go and the individual shareholders of
Bankard, Inc. (Bankard) for the sale to RCBC of 226,460,000 shares
(Subject Shares) of Bankard, constituting 67% of the latter’s capital stock.
373. After completing payment of the contract price (P1,786,769,400), the
corresponding deeds of sale over the subject shares were executed in
January 2001.
374. The dispute between the parties arose sometime in May 2003 when RCBC
informed EPCIB and the other selling shareholders of an overpayment of
 the subject shares, claiming there was an overstatement of valuation of
accounts amounting to P478 million and that the sellers violated their
warrantyunder Section 5(g)of the SPA.
375. As no settlement was reached, RCBC commenced arbitration proceedings
with the ICC-ICA in accordance with Section 10 of the SPA30
376. In its Request for Arbitration, Claimant RCBC charged Bankard with
deviating from and contravening generally accepted accounting principles
and practices, due to which the financial statements of Bankard prior to the
stock purchase were far from fair and accurate, and resulted in the
overpayment of P556 million.
a. For this violation of sellers’ representations and warranties under
the SPA, RCBC sought its rescission, as well as payment of actual
damages in the amount of P573,132,110, legal interest on the
purchase price until actual restitution, moral damages and litigation
and attorney’s fees, with alternative prayer for award of damages
in the amount of at least P809,796,082 plus legal interest.
377. In their Answer, EPCIB, Go and the other selling individual shareholders
(Respondents) denied RCBC’s allegations contending that:
a. RCBC’s claim is one for overpayment or price reduction under
Section 5(h) of the SPA which is already time-barred,
b. the remedy of rescission is unavailable, and
c. even assuming that rescission is permitted by the SPA, RCBC
failed to file its claim within a reasonable time.
378. A counterclaim for litigation expenses and costs of arbitration in the amount
of US$300,000, as well as moral and exemplary damages, was likewise
raised by the Respondents.
379. Subsequently, the Arbitration Tribunal was constituted.
a. Mr. Neil Kaplan was nominated by RCBC;
b. Justice Santiago M. Kapunan (a retired Member of this Court) was
nominated by the Respondents; and
c. Sir Ian Barker was appointed by the ICC-ICA as Chairman.
380. The ICC-ICA informed the parties that they are required to pay
US$350,000 as advance on costs pursuant to Article 30 (3) of the ICC Rules
of Arbitration (ICC Rules).
30 Section 10.Arbitration - Should there be any dispute arising between the parties relating to this
Agreement including the interpretation or performance hereof which cannot be resolved by agreement of
the parties within fifteen (15) days after written notice by a party to another, such matter shall then be
finally settled by arbitration under the Rules of Conciliation and Arbitration of the International Chamber
of Commerce in force as of the time of arbitration, by three arbitrators appointed in accordance with such
rules. The venue of arbitration shall be in Makati City, Philippines and the arbitration proceedings shall be
conducted in the English language. Substantive aspects of the dispute shall be settled by applying the laws
of the Philippines. The decision of the arbitrators shall be final and binding upon the parties hereto and the
expenses of arbitration (including without limitation the award of attorney’s fees to the prevailing party)
shall be paid as the arbitrators shall determine.
381. RCBC paid its share of US$107,000, the balance remaining after deducting
payments of US$2,500 and US$65,000 it made earlier.
382. Respondents’ share of the advance on costs was thus fixed at US$175,000.
383. Respondents filed an Application for Separate Advances on Costs under
Article 30(2) of the ICC Rules, praying that the ICC fix separate advances
on the cost of the parties’ respective claims and counterclaims, instead of
directing them to share equally on the advance cost of Claimant’s (RCBC)
claim.
384. Respondents deemed this advance cost allocation to be proper, pointing out
that the total amount of RCBC’s claim is substantially higher – more than
40 times –the total amount of their counterclaims, and that it would be
unfair to require them to share in the costs of arbitrating what is essentially
a price issue that is now time-barred under the SPA.
385. The ICC-ICA denied the application for separate advances on costs and
invited anew the Respondents to pay its share in the advance on costs.
386. However, despite reminders from the ICC-ICA, Respondents refused to pay
their share in the advance cost fixed by the ICC-ICA.
387. The ICC-ICA instructed the Arbitration Tribunal to suspend its work and
granted the parties a final time-limit of 15 days to pay the balance of the
advance on costs, failing which the claims shall be considered withdrawn,
without prejudice to their reintroduction at a later date in another
proceeding.
a. For the same reason of non-receipt of the balance of the advance
cost, the ICC-ICA issued Procedural Order No. 3 for the
adjournment of the substantive hearings and granting the
Respondents a two-month extension within which to submit their
brief of evidence and witnesses.
388. The ICC-ICA notified the parties of its decision to increase the advances on
costs from US$350,000 to US$450,000 subject to later readjustments, and
again invited the Respondents to pay the US$100,000 increment within 30
days from notice.
389. Respondents, however, refused to pay the increment, insisting that RCBC
should bear the cost of prosecuting its own claim and that compelling the
Respondents to fund such prosecution is inequitable.
390. Respondents reiterated that it was willing to pay the advance on costs for
their counterclaim.
391. In view of Respondents’ continuing refusal to pay its equal share in the
advance on costs and increment, RCBC wrote the ICC-ICA stating that
the latter should compel the Respondents to pay as otherwise RCBC will
be prejudiced and the inaction of the ICC-ICA and the Arbitration Tribunal
will detract from the effectiveness of arbitration as a means of settling
disputes.
392. Chairman Ian Barker, in a letter stated in part (2006):
a. The Tribunal has no power under the ICC Rules to order the
Respondents to pay the advance on costs sought by the ICC or to
 give the Claimant any relief against the Respondents’ refusal to
pay.
393. RCBC paid the additional US$100,000 under the second assessment to
avert suspension of the Arbitration Tribunal’s proceedings.
394. Meanwhile, EPCIB’s corporate name was officially changed to Banco
De Oro (BDO)-EPCIB after its merger with BDO was duly approved
by the Securities and Exchange Commission.
a. As such, BDO assumed all the obligations and liabilities of
EPCIB under the SPA.
395. The Arbitration Tribunal rendered a Partial Award and makes the following
declarations (First Partial Award -- September 2007):
a. The Claimant’s claim is not time-barred under the provisions of
this SPA.
b. The Claimant has established the following breaches by the
Respondents of the SPA.
§ The assets, revenue and net worth of Bankard were overstated.
c. Subject to proof of loss the Claimant is entitled to damages for the
foregoing breaches.
396. RCBC filed with the RTC of Makati a motion to confirm the First
Partial Award, while Respondents filed a motion to vacate the same.
a. RTC of Makati issued an order confirming the First Partial Award
and denying Respondents’ separate motions to vacate.
Respondents’ motion for reconsideration was likewise denied.
397. ICC-ICA, by letter, increased again the advance on costs.
a. Respondents declined to pay its adjudged total share and the ICC-
ICA, then invited RCBC to substitute for Respondents in paying
the balance.
b. RCBC complied with the request.
398. RCBC filed an Application for Reimbursement of Advance on Costs
Paid, praying for the issuance of a partial award directing the
Respondents to reimburse its payment representing Respondents’ share in
the Advance on Costs.
399. Respondents filed their opposition arguing that in issuing the award for
advance cost, the Arbitration Tribunal will be deciding an issue beyond
the terms of the Terms of Reference (TOR).
400. In his letter, Chairman Barker advised the parties, as follows (2008):
a. The Tribunal notes that neither party has referred to an article by
Matthew Secomb, ICC Secretariat, on the very subject of the case
at bar. To assist both sides and to ensure that the Tribunal does
not consider material on which the parties have not been
given an opportunity to address, Chairman Barker attached a
copy of the article.
401. RCBC contended that based on Mr. Secomb’s article, the Arbitration
Tribunal is vested with jurisdiction and authority to render an award with
respect to said reimbursement of advance cost paid by the non-defaulting
party.
402. Respondents, on the other hand, maintained that RCBC’s application for
reimbursement of advance cost has no basis under the ICC Rules.
403. The Arbitration Tribunal rendered the Second Partial Award as follows
(2008):
a. Respondents are forthwith to pay to the Claimant the sum of
US$290,000
404. EPCIB filed a Motion to Vacate Second Partial Award in the Makati City
RTC while RCBC filed in the same court a Motion to Confirm Second
Partial Award.
405. The RTC of Makati issued the Order confirming the Second Partial Award
and denying EPCIB’s motion to vacate the same.
a. It held that since the parties agreed to submit any dispute
under the SPA to arbitration and to be bound by the ICC Rules,
they are also bound to pay in equal shares the advance on costs.
b. It noted that RCBC was forced to pay the share of EPCIB in
substitution of the latter to prevent a suspension of the arbitration
proceedings, while EPCIB’s non-payment seems more like a
scheme to delay such proceedings
406. EPCIB filed in the CA a petition for review with application for TRO
and/or writ of preliminary injunction in accordance with the Special
Rules of Court on Alternative Dispute Resolution
407. EPCIB assailed the Makati City RTC in denying its motion to vacate the
Second Partial Award despite the fact that it was issued with evident
partiality.
408. The Arbitration Tribunal issued the Final Award (2010) in favor of RCBC.
409. BDO filed in the Makati City RTC a petition to vacate final award while
RCBC filed with RTC of Makati a motion to confirm final award.
a. The motion to confirm final award was granted hence, a writ of
execution was filed by the RCBC.
b. Writ of Execution was issued for the implementation of the said
court’s order that judicially confirmed the Final Award.
410. BDO then filed in the CA, a "Petition for Review (With Application for a
Stay Order or Temporary Restraining Order and/or Writ of Preliminary
Injunction” which was eventually denied.
411. BDO assails the Resolution of CA’s decision which denied BDO’s
application for the issuance of a stay order and/or temporary restraining
order (TRO)/preliminary injunction against the implementation of the Writ
of Execution issued by the RTC of Makati.
412. Meanwhile, the CA rendered its Decision which reverses the Second
Partial Award in 2008 issued in International Chamber of Commerce
Court of Arbitration.
413. RCBC alleged that the CA:
a. acted contrary to law and prior rulings of this honorable court and;
b. committed reversible error in vacating the second partial award on
the basis of Chairman Barker’s alleged partiality, which it claims is
indicative of bias considering that the allegations contained in
 BDO/EPCIB’s petition fall short of the jurisprudential requirement
that the same be supported by clear and convincing evidence.
ISSUE/s:
88. WoN there is a legal ground to vacate the Second Partial Award.– YES,
because there was evident partiality and therefore, constitutes as a legal
ground for vacating the Second Partial Award.
RULING: WHEREFORE, premises considered, the petition m G.R. No. 199238
is DENIED. The Resolution dated September 13,2011 ofthe Court of Appeals in
CA-G.R. SP No. 120888 is AFFIRMED.
The petition in G.R. No. 196171 is DENIED. The Decision dated December 23,
2010 of the Court of Appeals in CA-G.R. SP No. 113525 is hereby AFFIRMED.
SO ORDERED.
RATIO:
There was evident partiality and therefore, constitutes as a legal ground for vacating
the Second Partial Award.
394. Special ADR Rules sets forth that evident partiality or corruption in the
arbitral tribunal or any of its members is a ground for vacating an arbitral
award:
a. The failure of the CA to apply the applicable standard or test
for judicial review prescribed in the Special ADR Rules may
warrant the exercise of the Supreme Court’s discretionary powers
of judicial review.
b. Rule 19.10. Rule on judicial review on arbitration in the
Philippines—As a general rule, the court can only vacate or set
aside the decision of an arbitral tribunal upon a clear showing
that the award suffers from any of the infirmities or grounds
for vacating an arbitral award.
395. Evident partiality is not defined in our arbitration laws. As one of the
grounds for vacating an arbitral award under the Federal Arbitration Act
(FAA) in the United States (US), the term "encompasses both an
arbitrator’s explicit bias toward one party and an arbitrator’s inferred
bias when an arbitrator fails to disclose relevant information to the
parties."
a. In the Court of Appeals of Oregon, evident partiality in its
common definition implies "the existence of signs and
indications that must lead to an identification or inference" of
partiality.
b. In Morelite Construction Corp. v. New York District Council
Carpenters Benefit Funds, they stated that evident partiality will be
found where a reasonable person would have to conclude that
an arbitrator was partial to one party to the arbitration.
396. The Court adopts the reasonable impression of partiality standard, which
requires a showing that a reasonable person would have to conclude that
an arbitrator was partial to the other party to the arbitration:
a. Such interest or bias must be direct, definite and capable of
demonstration rather than remote, uncertain, or speculative.
b. When a claim of arbitrator’s evident partiality is made, the
court must ascertain from such record as is available whether the
arbitrators’ conduct was so biased and prejudiced as to destroy
fundamental fairness.
397. Applying the foregoing standard, we agree with the CA in finding that
Chairman Barker’s act of furnishing the parties with copies of
Matthew Secomb’s article31, considering the attendant circumstances,
is indicative of partiality such that a reasonable man would have to
conclude that he was favoring the Claimant, RCBC.
398. Even before the issuance of the Second Partial Award for the
reimbursement of advance costs paid by RCBC, Chairman Barker
exhibited strong inclination to grant such relief to RCBC,
notwithstanding his categorical ruling that the Arbitration Tribunal "has no
power under the ICC Rules to order the Respondents to pay the advance on
costs sought by the ICC or to give the Claimantany relief against the
Respondents’ refusal to pay."
a. That Chairman Barker was predisposed to grant relief to RCBC
was shown by his act of interpreting RCBC’s letter, which merely
reiterated its plea to declare the Respondents in default and
consider all counterclaims withdrawn – as what the ICC Rules
provide – as an application to the Arbitration Tribunal to issue a
partial award in respect of BDO’s failure to share in the advance
costs.
399. It must be noted that RCBC in said letter did not contemplate the issuance
of a partial order, despite Chairman Barker’s previous letter which
mentioned the possibility of granting relief upon the parties making
submissions to the Arbitration Tribunal.
400. Expectedly, in compliance with Chairman Barker’s letter, RCBC
formally applied for the issuance of a partial award ordering BDO to
pay its share in the advance costs.
401. By furnishing the parties with a copy of this article, Chairman Barker
practically armed RCBC with supporting legal arguments discussed by
Secomb.
31 Mr. Secomb’s article, "Awards and Orders Dealing With the Advance on Costs in ICC Arbitration:
Theoretical Questions and Practical Problems" specifically dealt with the situation when one of the
parties to international commercial arbitration refuses to pay its share on the advance on costs. After a
brief discussion of the provisions of ICC Rules dealing with advance on costs, which did not provide for
issuance of a partial award to compel payment by the defaulting party, the author stated:
4. As we can see, the Rules have certain mechanisms to deal with defaulting parties. Occasionally,
however, parties have sought to use other methods to tackle the problem of a party refusing to pay its
part of the advance on costs. These have included seeking an order or award from the arbitral tribunal
condemning the defaulting party to pay its share of the advance on costs.1âwphi1 Such applications are
the subject of this article.
 a. Hence, RCBC succeeded in availing of a remedy which was not
expressly allowed by the Rules but in practice has been resorted to
by parties in international commercial arbitration proceedings.
402. It may also be mentioned that the author, Matthew Secomb, is a member of
the ICC Secretariat and the "Counsel in charge of the file", as in fact he
signed some early communications on behalf of the ICC Secretariat
pertaining to the advance costs fixed by the ICC.
a. This bolstered the impression that Chairman Barker was
predisposed to grant relief to RCBC by issuing a partial award.
403. Indeed, fairness dictates that Chairman Barker refrain from suggesting
to or directing RCBC towards a course of action to advance the latter’s
cause, by providing it with legal arguments contained in an article
written by a lawyer who serves at the ICC Secretariat and was involved
or had participation -- insofar as the actions or recommendations of the
ICC – in the case.
404. Though done purportedly to assist both parties, Chairman Barker’s act
clearly violated Article 15 of the ICC Rules declaring that "[i]n all
cases, the Arbitral Tribunal shall act fairly and impartially and ensure that
each party has a reasonable opportunity to present its case."
405. Having pre-judged the matter in dispute, Chairman Barker had lost his
objectivity in the issuance of the Second Partial Award.
406. In fine, we hold that the CA did not err in concluding that the article
ultimately favored RCBC as it reflected in advance the disposition of
the Arbitral Tribunal, as well as "signaled a preconceived course of
action that the relief prayed for by RCBC will be granted."
407. Meanwhile, the Court find no reversible error or grave abuse of discretion
in the CA’s denial of the application for stay order or TRO upon its finding
that BDO failed to establish the existence of a clear legal right to enjoin
execution of the Final Award confirmed by the Makati City RTC.
 025 North American Dredging Company of Texas v. United Mexican States
(Dim)
March 31, 1926 | General Claims Commission | Calvo Clause
PETITIONER: North American Dredging Company (United States of America)
RESPONDENT: United States of Mexico (Mexico)
SUMMARY: The North American Dredging Company entered into a contract with the
Mexican Government for dredging services to be undertaken at the Mexican port of
Salina Cruz. A Calvo Clause was incorporated in the contract which stipulated that the
American contractor would be treated as a Mexican with respect to the enforcement of
the contract, thus applying Mexican laws, and that the private company would not be
able to seek the intervention of its home state in matters related to the contract. The
dredging company alleged that there was a breach of contract and brought the case to
the US government who went to the General Claims Commission to seek payment of
losses and damages on behalf of the company against the Mexican Government. The
Mexican government claims that the Commission has no jurisdiction over the US
government's case because of the existence of the Calvo Clause. The Commission
agreed with the Mexican government as the private company voluntarily bound itself to
the contract containing the Calvo Clause and there was no allegations of illegal acts
conducted by the Mexican government that would allow the US government to
intervene on behalf of the dredging company.The Commission thus dismissed the case
and upheld the Calvo Clause as it did not expressly deny the dredging company the
right to have its home state intervene in case the Mexican authorities denied the
dredging company due process.
DOCTRINE: Calvo Clause – is a stipulation that expressly deprives a foreign private
claimant in a contract to request for diplomatic protection from its state of origin, by
treating the foreign private claimant as a local for the purposes of the contract.
Despite this clause, the Commission recognized that if a State (in this case Mexico) fails
to provide foreign nationals with minimum procedural guarantees for resolving breach
of contract claims against it in its courts, international liability might lie and a private
claimant may apply to its own government for legal relief.
FACTS
35. The North American Dredging Company of Texas, an American
Corporation, entered into a contract with the Government of Mexico for
dredging services at the Mexican port of Salina Cruz.
36. The contract was signed in the City of Mexico, and the provision in
question was Article 18 (Calvo Clause), which stated:
12. “The contractor (North American Dredging Company of
Texas) and all persons who, as employees or in any other
capacity, may be engaged in the execution of the work under
this contract, either directly or indirectly, shall be considered
as Mexican in all matters, within the Republic of Mexico,
concerning the execution of the work and fulfillment of the
contract.”
13. “They shall not claim, nor shall they have any other rights or
means to enforce the same than those granted by the laws of the
Republic of Mexico to Mexican citizens. They are consequently
deprived of any rights as aliens, and under no conditions, shall
the intervention of foreign diplomatic agents be permitted, in
any matter related to this contract.”
37. The contact was allegedly breached by the Mexican government, and the
North American Dredging Company of Texas brought the matter to
the US Government who now raised the matter to the General Claims
Commission32 for the recovery of the sum of $233,523 with interest as the
amount of losses and damages.
38. Mexico challenges the jurisdiction of the General Claims Commission on
two grounds. First, that claims based on an alleged non-performance of
contract obligations are outside the jurisdiction of the Commission. Second,
that a contract containing the so-called Calvo Clause deprives the party
of the submission of such claims to an international commission.
ISSUE/s:
(5) [Not so important] – WoN the General Claims Commission has
jurisdiction over non-performance of private contract obligations –
YES. The General Claims Commission has a broad grant of jurisdiction
over “all claims” of an international character, including contract claims by
a citizen of one country against the government of another country that are
governed purely by municipal law. (This was based on the decision of the
Commission in the case of Illinois Central Railroad Co. v. United Mexican
States)
(6) [Second Main Issue]WoN the US government may claim for
compensation on behalf of a US corporation against the Mexican
Government despite the existence of a Calvo Clause – NO. The North
American Dredging Company of Texas voluntarily bound itself to the
contract with the Calvo Clause and it did not present any internationally
illegal acts conducted by the Mexican government that would allow the US
government to intervene in the company's behalf before the international
tribunal.
32 The United States and Mexico signed the General Claims Convention of September
8, 1923 . The Commission was asked to resolve all claims by U.S. and Mexican citizens
against the other government for loss or damage to their person or property interests
arising out of the period of political upheaval that followed a series of Mexican revolutions in
the late 19th and early 20th Centuries.
RULING: WHEREFORE the second ground of the motion to dismiss made by
the Mexican government is SUSTAINED. The General Claims Commission has
no jurisdiction over the case.
RATIO:
[Preliminary Considerations]
27. The Commission does not feel impressed by arguments either in favor of or
in opposition to the Calvo clause, in so far as these arguments go to
extremes. The Calvo clause is neither upheld by all outstanding
international authorities and by the soundest among international awards
nor is it universally rejected.
28. The Calvo clause in a specific contract is neither a clause which must be
sustained to its full length because of its contractual nature nor can it be
discretionarily separated from the rest of the contract as if it were just an
accidental postscript.
29. The problem is not solved by saying yes or no; the affirmative answer
exposing the rights of foreigners to undeniable dangers, the negative answer
leaving to the nations involved no alternative except that of exclusion of
foreigners from business.
30. The present stage of international law imposes upon every international
tribunal the solemn duty of seeking for a proper and adequate balance
between the sovereign right of national jurisdiction, on the one hand, and
the sovereign right of national protection of citizens on the other.
31. No international tribunal should or may evade the task of finding such
limitations of both rights as will render them compatible within the general
rules and principles of international law.
government committed shady illegal acts]
35. The claimant does not pretend that it has made any attempt to comply with
the terms of that article, which as here construed is binding on it. Therefore
the claimant has not put itself in a position where it may rightfully
present this claim to the Government of the United States for its
interposition. [no illegal acts nor was there any delay or denial of justice by
the Mexican authorities]
36. If it were necessary to so construe article 18 of the contract as to bind the
claimant not to apply to its Government to intervene diplomatically or
otherwise in the event of a denial of justice to the claimant growing out of
the contract declared upon or out of any other situation, then this
Commission would have no hesitation in holding such a clause void ab
initio and not binding on the claimant. [if they did stipulate that you could
never seek international assistance even if there were international
violations, then that Calvo Clause would have been void]
37. As the claimant voluntarily entered into a legal contract binding itself
not to call as to this contract upon its Government to intervene in its
behalf, and as all of its claim relates to this contract, and as therefore it
can not present its claim to its Government for intervention before this
Commission, the second ground of the notion to dismiss is sustained.

[Interpretation of the Calvo Clause in this Case]

32. The question then arises, Has the private claimant in this case put itself in a
position where it has the right to present its claim to the Government of the
United States for its interposition? The answer to this question depends
upon the construction to be given to article 18 of the contract on which the
claim rests.
33. In article 18 of the contract the claimant expressly agreed that in all matters
connected with the execution of the work covered by the contract and the
fulfilment of its contract obligations and the enforcement of its contract
rights it would be bound and governed by the laws of Mexico administered
by the authorities and courts of Mexico and would not invoke or accept the
assistance of his Government.
34. Under the rules of international law the claimant (as well as the
Government of Mexico) was without power to agree, and did not in fact
agree, that the claimant would not request the Government of the
United States, of which it was a citizen, to intervene in its behalf in the
event of internationally illegal acts done to the claimant by the Mexican
authorities. [in other words they did not stipulate that the claimant would
not be allowed to seek assistance from its own government if the Mexican
026 Dissent of Judge Nielsen in the subsequent case of International Fisheries
Co. (Eleazar)
July 1931 | (Dissent) Nielsen, J. | International Claims
PETITIONERS: International Fisheries Co. (as represented by USA)
RESPONDENTS: United Mexican States
SUMMARY: The commission’s discussion (the main decision) of the restriction
on interposition was characterized by failure of recognition and application of
fundamental principles of law with respect to several subjects. Among them are:
(1) The nature of international law as a law between nations whose operation is
not controlled by acts of private individuals. (2) The nature of international
reclamation as a demand of a government for redress from another govt and not
a private litigation. (3) A remarkable confusion between substantive rules of
international law that a nation may invoke in behalf of itself or its nationals
against another nation, and jurisdictional questions before international tribunals
which are regulated by covenants between nations and of course not by rules of
international law or by acts of private individuals or by contact between private
persons. International law recognizes the right of the nation to intervene to
protect its national in foreign countries through diplomatic channels and through
instrumentalities such as are afforded by internationals tribunals.
The question presented for determination in considering the effect of local laws
or contractual obligations between a government and a private individual to
restrict that right therefore is whether there is evidence of general assent to such
restrictions. Although the case was dismissed on jurisdictional grounds, the
commission made reference to international law but did not cite a word of the
evidence of that law. The commission seemed to indicate some view to the effect
that the contractual stipulations in question were in harmony with international
law because they required the exhaustion of local remedies and that therefore the
claim might be rejected. The commission ignored the effect of Article 5 of the
convention between US and Mexico to the effect that no claim shall be
dismissed due to non-exhaustion of local remedies. No rule can be abolished, or
amplified or restricted in its operation by a single nation or by a few nations or
by private individuals or by private individuals acting in conjunction with a
government. And assuredly no nation can by contract with a private individual
relieve itself of its obligations under international law nor nullify rights of
another nation under that law. Domestic law cannot destroy rights secured by
international law. Domestic laws are not finally determinative of an alien’s
rights. As have been observed, violations of the law of nations occur by failure
of a nation to live up to the obligations of the requirements of that law. While the
signing of the contract with a private concern would scarcely in precise language
be declared a violation of international law, certainly any attempt to frustrate
another nation’s rights of interposition secured by international law would not be
in harmony with that. It is quite possible the commission said to recognize as
valid some forms of waiving the right of foreign protection without thereby
recognizing as valid and lawful every form of doing so. It is difficult to perceive
however since international law is a law made by general consent of nations and
therefore a law which can be modified only by the same process of consent
among the nations, how the contract of a private individual with a single nation
could have the effect either of making of modifying international law with
respect to diplomatic protection. Except by expatriation a private person can by
no act of his own forfeit or destroy his govt’s right to protect him. His acts may
of course give rise to considerations of policy which may influence the attitude
of his government with respect to his appeal for assistance. It was the duty of the
commission to give effect to the clearly expressed intent of article 5 of the
arbitration agreement. The intent and clear legal effect of that article is that
claims shall not be dismissed for failure of claimants to resort to local remedies.
Therefore, to reject the claim was to nullify the clear intent and legal effect of
provisions by which two governments stipulated that claims should not be
rejected on the ground that there had not been a resort to legal remedies.
DOCTRINE: No rule can be abolished, or amplified or restricted in its
operation by a single nation or by a few nations or by private individuals or by
private individuals acting in conjunction with a government. And assuredly no
nation can by contract with a private individual relieve itself of its obligations
under international law nor nullify rights of another nation under that law.
FACTS: (Facts from dissent itself)
29. Claim in the amount of $4,500,000 with interest is made in this case by the
United States of America against the United Mexican States in behalf of the
International Fisheries Company, an American corporation.
30. The claim is predicated on allegations with respect to the wrongful
cancellation of a concession granted by the Government of Mexico to a
Mexican corporation known as "La Pescadora, S.A.", in which the claimant,
International Fisheries Co., as represented by USA, possessed a beneficial
interest as the owner of practically all of the stock.
31. Conformably to provisions of Article I of the Convention of September 8,
1923, the claimant (USA) presented an allotment from the Mexican
corporation covering 985/1000 of the loss suffered by reason of the
cancellation of its concession.
32. The respondent government, Mexico, invoked in a plea to the jurisdiction
the decision of this Commission in the case of the North American
Dredging Company of Texas.
33. In behalf of the claimant Government it was argued that the decision,
irrespective of its correctness, which the United States did not concede, did
not sustain the Mexican Government's contentions with respect to the
bearing on the instant case of what the Commission held in the case of the
North American Dredging Company of Texas.
34. On the decision rendered in that case, my associates (the other
commissioners aside from Nielsen) ground their decision in the instant case,
and they reject the contentions of the United States that by the language of
 the opinion in that case the instant case is excluded from the operation of
the decision in the former.
35. From some of the things said in the two opinions written in the dredging
company case, particularly from the opinion written by the American
Commissioner, it appears that the claim was rejected because claimant
(USA) had not resorted to remedies afforded by Mexican tribunals.
36. Counsel for the United States contended that the decision could have no
bearing on the instant case, because, among other things, there were no
judicial remedies open to "La Pescadora".
37. The company's concession was cancelled by a Mexican military leader who
undertook to combine in himself the exercise of military, executive,
legislative and judicial power, and indeed no Federal courts functioned
when General Carranza cancelled the company's concession.
38. The only remedy open to the company was resort to the man who cancelled
its concession. Clearly there was no remedy. The contentions of counsel I
therefore consider to be obviously sound.
39. However, I (Judge Nielsen) was not a member of the Commission when the
opinion in the North American Dredging Company case was rendered. I am
constrained to say that the opinion contains nothing of any consequence
with which I agree.
40. And therefore, since the opinion in the instant case is grounded upon the
decision in the prior case, I (Judge Nielsen) must, in order to explain my
views, indicate what I conceive to be the utter lack of any basis in law for
any conclusion submitted in the former opinion.
ISSUE/s
W/N the jurisdictional provisions of the Convention have been disregarded? – YES,
the commission seemed to indicate some view to the effect that the contractual
stipulations in question were in harmony with international law because they
required the exhaustion of local remedies and that therefore the claim might be
rejected. The commission ignored the effect of Article 5 of the convention between
US and Mexico to the effect that no claim shall be dismissed due to non-exhaustion
of local remedies. No rule can be abolished, or amplified or restricted in its operation
by a single nation or by a few nations or by private individuals or by private
individuals acting in conjunction with a government. And assuredly no nation can by
contract with a private individual relieve itself of its obligations under international
law nor nullify rights of another nation under that law.
RULING: (last portion of Judge Nielsen’s dissent) Rule XI, 1, provides: "The award
or any other judicial decision of the Commission in respect of each claim shall be
rendered at a public sitting of the Commission." The other two Commissioners have
signed the "Decision" in this case. However, no meeting of the Commission was ever
called by the Presiding Commissioner to render a decision in the case, and there has
never been any compliance with the proper rule above quoted.
RATIO:
Misconception of Fundamental Principles of Law
1. The Commission's discussion of the restriction on interposition was
characterized by a failure of recognition and application of fundamental
principles of law with respect to several subjects. Principally among them
are:
a. The nature of international law as a law between nations whose
operation is not controlled by acts of private individuals.
b. The nature of an international reclamation as a demand of a
govern- ment for redress from another government and not a
private litigation.
c. A remarkable confusion between substantive rules of international
law that a nation may invoke in behalf of itself or its nationals
against another nation, and jurisdictional questions before
international tribunals which are regulated by covenants between
nations and of course not by rules of international law or by acts of
private individuals or by a contract between a private individual
and a government.
2. International law recognizes the right of the nation to intervene to protect its
nationals in foreign countries through diplomatic channels and through
instrumentalities such as are afforded by international tribunals.
3. The right was recognized long prior to the time when there was any thought
of restrictions on its exercise. The question presented for determination in
considering the effect of local laws or contractual obligations between a
government and a private individual to restrict that right therefore is
whether there is evidence of a general assent to such restrictions.
4. The Commission decided the case by rejecting the claim on jurisdictional
grounds, although it admitted and stated that the claim was within the
jurisdictional provisions of the Convention of September 8, 1923, which
alone of course determined jurisdiction. Although the case was dismissed
on jurisdictional grounds, the Commission made reference to international
law but did not cite a word of the evidence of that law.
5. Commission found that the claim was within the language of jurisdictional
provisions of the Convention but escaped the effect of that language by
saying that the claimant could not "rightfully" present his claim to the
Government of the United States. The claimant's right to appeal to his
Government was of course determined by the law of the United States.
There was no law declaring that the claimant could not "rightfully" present
his claim to his Government for subsequent presentation to the
Commission.
6. The Commission dismissed the case nominally on jurisdictional grounds,
but did not concern itself with law pertaining to jurisdiction. The Com-
mission nullified the jurisdictional provisions of the Convention, although
the claim was obviously within the language of those provisions. It likewise
nullified Article V.
 Disregard of jurisdictional provisions of the Convention
1. The Commission in the dredging company case said that "the claim as
presented falls within the first clause of Article I of the Treaty describing
claims coming within this Commission's jurisdiction".
2. That is, of course, true. But in spite of the fact that the two Governments
framed a treaty giving the Commission jurisdiction over the case, the
Commission decided that jurisdiction was determined by a contract signed
between the company and Mexico in 1912 for the dredging of a Mexican
harbor.
3. It appears, therefore, that the Commission found that an American national
could make a contract with the Mexican Government in 1912 which
operated to destroy provisions of a treaty concluded between the United
States and Mexico in 1923.
4. The instant claim, like the claim of the dredging company, is based on
wrongful acts such as are referred to in the jurisdictional provisions of the
Convention. More particularly, it is within the specific provisions
stipulating jurisdiction when an allotment is presented, as was done in the
present case.
5. But my associates find that jurisdiction is determined by a contract with
respect to rights to fish in Mexican waters made in 1909 by a Mexican
national with the Mexican Government. So that in this case an American
national did not even participate in the remarkable performance, which I do
not understand, of wiping out the Commission's jurisdiction under a treaty
made nearly a quarter of a century after the date of the contract with respect
to fishing.
6. I shall discuss the two opinions in some further detail in connection with the
consideration of other arbitral decisions.
7. The Presiding Commissioner in his concurring opinion states that the
decision in the dredging company case had received the approbation of the
highest authorities on international law. No authorities are mentioned. He
says that he regards this opinion a notable contribution to the progress of the
science of that law. He considers that the decision splendidly clarifies
former concepts "with respect to the validity or invalidity" of the so-called
Calvo clause. From the foregoing resume of facts in relation to the much
lauded opinion of the Commission and from some observations which I
shall make hereinafter it will be seen that I do not agree with the views that
the opinion is a splendid contribution clarifying former concepts.
8. I am unable to understand the Presiding Commissioner's statement that this
decision in a certain manner protects a defendant State, leaving open
methods of redress to a claimant in case of denial of justice or international
delinquency. The Presiding Commissioner does not explain how the rights
of a claimant are preserved by a decision which, in disregard of
jurisdictional provisicns of an arbitration treaty, throws a case out of court
on supposed jurisdictional grounds and prevents any hearing on the merits
to determine the question of international responsibility. It is true, as the
Presiding Commissioner says, that the clause in question is not violative of
any rule of international law. International law, which is a law for the
conduct of nations, does not concern itself with contracts to dredge ports or
to conduct fishing operations, or with any provisions of such contracts. On
the other hand, it is equally clear that clauses in contracts of that kind
cannot be declaratory of rules of international law.
9. Treaties between Latin American republics and European countries, to
which the Presiding Commissioner refers, have no relation to the so-called
Calvo clause. Moreover, it may be observed that European countries,
practically without exception, deny the notion that a nation's rights under
international law to protect its nationals or to have cases adjudicated under
proper jurisdictional provisions of arbitration treaties can be nullified by a
so-called Calvo clause.
10. The Presiding Commissioner quotes an excerpt from a communication
addressed by Secretary of State McLane to Mr. Shain in 1834. In that
communication, the Secretary of State called attention to the general rule of
international law with respect to the exhaustion of local remedies by aliens
in countries of their sojourn. Obviously, the advice given by the Secretary at
an early day before the expedient of the Calvo clause had been invented had
nothing to do with the effect of the so-called clause. Furthermore, it is
specifically stipulated in the Convention of September 8, 1923, that this rule
of international law shall not be given effect in the pending arbitration. I am
unable to perceive by what authority my associates may consider they have
the right to ignore this important provision of the Convention.
11. With reference to the brief quotation which the Presiding Commissioner
makes from Dr. Borchard's work, The Diplomatic Protection of
CitizensAbroad, it may be interesting to call attention to brief portions of
the draft convention with comments prepared by the Research in
International Law, Harvard Law School, with respect to responsibility of
states. Dr. Borchard was the Reporter.
a. "Article 2"
b. "The responsibility of a state is determined by international law or
treaty, anything in its national law, in the decisions of its national
courts, or in its agree- ments with aliens, to the contrary
notwithstanding."
c. "Article 17"
d. "A state is not relieved of responsibility as a consequence af any
provision in its own law or in an agreement with an alien which
attempts to exclude re- sponsibility by making the decisions of its
own courts final; nor is it relieved of responsibility by any waiver
by the alien of the protection of the state of which he is a national."
e. "Comment"
f. "This Article deals with the effect of the so-called Calvo clause,
which has taken different forms, by constitution, law or contract,
either to make the alien a national for a particular purpose (Article
16) or to make the decisions of natio- nal courts final and
unchallengeable in the international forum, or to provide that the
 alien for the particular purpose waives the diplomatic protection of
his national state. The Article would establish that such provisions
in constitu- tions, laws or coniracts cannot defeat the rights of
states derived from interna- tional law. It is thus a specific
application of Article 2." Supplement to the American Journal of
International Law.
12. When the Presiding Commissioner goes so far as to say that the United
States "on its part has declared in general its adhesion to it", he evidently
means to say that the United States has adhered to the principle of the Calvo
clause. An examination of a single declaration made in behalf of the
Government of the United States with respect to this subject would of
course show that it has done nothing of the kind. And a statement based on
information—such as could be obtained by casual examination of a few
among numerous recorded precedents—could only be to the effect that the
United States has declared a consistent opposition to any such principle as
underlies the so-called Calvo clause. On the same page of Professor
Borchard's work, from which the Presiding Commissioner quotes, are found
the following declarations by Secretary of State Bayard:
a. "The United States has uniformly refused to regard such provisions
as annulling the relations existing between itself and its citizens or
as extinguishing its obligations to exert its good offices in their
behalf in the event of the invasion of their rights.
b. "No agreement by a citizen to surrender the right to call on his
government for protection is valid either in international or
municipal law."
13. The Presiding Commissioner states that he does not find duly proved the
rights of the International Fisheries Company with respect to the 985 shares
of stock in the company "La Pescadora, S.A.", and that the proof is deficient
and in some cases contradictory. No contradictions or deficiencies are
mentioned. I am unable to perceive any connection of this point with the
question of jurisdiction which Mexico contends may be raised by invoking
the so-called Calvo clause.
14. It is said in Mr. Fernandez MacGregor's opinion that the decision in the
dredging company case was attacked by a protest and by a motion for re-
hearing filed by the American Agency, in spite of the fact that Article VIII
of the Convention of September 8, 1923, provides:
a. "The High Contracting Parties agree to consider the decision of the
Commis- sion as final and conclusive upon each claim decided,
and to give full effect to such decisions."
15. I consider it to be regrettable that such statements should be made in a
judicial opinion. The propriety of a respectfully presented motion for re-
hearing is of course a matter properly to be determined when the motion
comes before the Commission for decision. No "protest" was made. In that
motion, now pending before the Commission, it is said:
a. "The Government of the United States of America, by its Agent,
respect- fully presents this Petition to the General Claims
Commission for a re-hearing of the Motion of the Mexican
Government to dismiss the case."
16. Motions for re-hearing have been presented to and entertained by other
international tribunals. Such a motion of course in no way involves the
repudiation by a Government of a final decision. And it may be observed
that it is very different from a reservation such as is mentioned by Sir John
Percival, British Commissioner in the Arbitration between Great Britain and
Mexico under the Convention of November 19, 1926. In the dissenting
opinion which he wrote in the case of the MexicanUnion Railway,Ltd., and
which is mentioned in the opinion of my associates in the instant case, the
British Commissioner said:
a. "During the hearing the Mexican Agent, evidently acting under
direct instruc- tions from his Government, stated that the question
of the Calvo Clause was a vital one to the Mexican Government,
and that if the Commission should take jurisdiction in this case, the
Mexican Government would register a protest against such
decision and would make a reservation as to its rights."
17. Only one decision of this Commission has been protested and repudiated.
And repudiation in that instance did not come from the Government of the
United States. There the Mexican Commissioner, acting as he explained
under directions of his Government, made formal declarations in a
dissenting opinion, as to the nullity of the majority ruling of the
Commission.
Exhaustion of Local Remedies
1. With reference to the rule of international law with respect to the exhaus-
tion of legal remedies, it is also interesting to bear in mind that there has in
recent years been a tendency, seemingly a very proper one, to eliminate that
rule in connection with the adjudication of international controversies.
2. The plea that, claimant has not exhausted his legal remedies may perhaps
not infrequently be regarded as somewhat technical. It is not concerned with
the fundamental question whether a wrong was initially committed by
authorities of a respondent government.
3. Governments, including those of Mexico and the United States, have
considered it to be advisable, when establishing international tribunals to
deal with complaints of wrong-doing, that international controversies
should by such action be finally settled; that the tribunals should be
empowered to pass upon the question whether wrong was committed, to
afford redress for improper action, and to ignore the subject of resort to
local remedies.
4. Thus the arbitral agreement concluded August 18, 1910, between the United
States and Great Britain contained the provision that no claim should "be
disallowed or rejected by application of the general principle of
international law that the legal remedies must be exhausted as a condition
precedent to the validity of the claim". And by Article V of the Convention
concluded September 8, 1923, between the United States and Mexico, the
 high contracting parties agreed that "no claim shall be disallowed or
rejected by the Commission by the application of the general principle of
international law that the legal remedies must be exhausted as a condition
precedent to the validity or allowance of any claim".
Decisions of International Tribunals
1. It is interesting that a high international tribunal has expressed the view that
a contractual stipulation intended to preclude diplomatic interposition was
incompatible and irreconcilable with an arbitral agreement providing for the
adjudication of a claim, and a decision of an international commission was
declared void by this tribunal, partly on the ground that the commission had
disallowed a claim because a claimant had failed to resort, conformably to
the contractual stipulation, to local remedies.
2. The Commission decided that the case was not within its jurisdiction, in
spite of the fact that it stated that the clear language of the jurisdictional
provisions of Article I of the Convention of September 8, 1923, embraced
the claim. The question before the Commission was whether the United
States had a right to press this claim before the Commission embraced by
the jurisdictional article. That is all the United States undertook to do in this
case and yet the Commission saw fit to cite the case apparently as a horrible
example. It was said : "If it were necessary to demonstrate how legitimate
are the fears of certain nations with respect to abuses of the right of
protection and how seriously the sovereignty of those nations within their
own boundaries would be impaired if some extreme conceptions of this
right were recognized and enforced, the present case would furnish an
illuminating example". Assuredly it seems to be strange that, with respect to
the action of the United States in presenting a claim embraced by the
jurisdictional article of an arbitration treaty, use should be made of language
concerning abuses of the right of protection, the serious impairment of the
sovereignty of nations, and extreme conceptions of the right of protection.
3. As has been said, the Commission dismissed the case because it declared it
had no jurisdiction. In the American Memorial were allegations with respect
to arbitrary interference with work to be performed under a contract; non-
payment for work performed; and the seizure of property. Evidence
accompanied the Memorial in support of such allegations. On the part of
Mexico there was no denial of these allegations; no allegations that Mexico
had observed the contract with the claimant; no evidence of any kind,
merely a motion to dismiss on jurisdictional grounds. That motion the
Commission granted on such grounds. Nevertheless the Commission
proceeded, although questions of evidence bearing on the merits of the case
were not involved in the jurisdictional point, to charge the claimant with
having breached his contract, and with having forcibly removed a dredge to
which under Article 7 of the contract the Government of Mexico considered
itself entitled as security for the proper fulfilment of the contract. Nothing
was said in the opinion with respect to allegation supported by evidence that
Mexico breached the contract.
Pertinent Evidence of International Law
1. As has been observed, the question presented for determination in
considering the effect of contractual stipulations between a government and
a private individual to restrict the right of interpretation is, whether there is
evidence revealing a general assent among the nations to such a restriction,
just as there is evidence of general assent to the right of inter- position.
There is no conventional international law effecting such a restric- tion. Is
there any customary law?
2. In considering that simple problem in the light of discussions of arbitral
tribunals such as have been referred to, it is essential to sweep aside a
congeries of notions prompting such questions as whether any principles of
international law, which is a law for nations and not for citizens, forbids
citizens to enter into contracts intended to limit interposition, and whether a
private person on whom international law imposes no obligations violates a
rule of international law by making such a contract. It is of course neces-
sary to recognize that the requirements of international law with respect to
aliens is not met by the so-called "national treatment". It is likewise
necessary to distinguish between jurisdiction to pass upon international
reclamations—a subject determined by arbitral agreements—and inter-
national law determinative of the merits of such reclamations. It is
important to understand that when an international tribunal is concerned
with an international reclamation, whether such reclamation is predicated
upon allegations of breech of contract or allegations of other wrongful
action, the tribunal is called upon to determine whether authorities of a
respondent government have committed acts rendering the government
liable under international law. And it may be added that it should be borne
in mind that the tribunal in dealing with such questions of law is not
concerned with anticipated or imaginary "world wide abuses" or
"undeniable dangers", or the "law of nature".
 027 THE TATTLER (US v. GREAT BRITAIN) (Escalona)
December 18, 1920 | Settlement of Disputes
PETITIONER: US
RESPONDENTS: Great Britain
SUMMARY: The American schooner named Tattler was detained twice by the
British Government, specifically the Canadian authorities. The first instance was
in Liverpool, Nova Scotia because of an alleged violation of “An Act respecting
fishing by foreign vessels”. They had an agreement that the Canadian authorities
will release the schooner upon payment of $500 by the US and the additional
stipulation that they may not pursue any claim in any court or tribunal. This was
proven by the documents submitted by the British Government. The US paid
under protest. The US still tried to pursue the claim to the tribunal because it was
arguing that the receipt by the Canadian authorities and protest held no such
stipulation, hence the first issue: WoN the tribunal can try the case relating to
this seizure in Liverpool. The tribunal held that they may not due to express
stipulation.
The Tattler was seized for a second time in port of North Sydney, Cape Breton
for violating “An Act respecting fishing vessels of the United States”. The
schooner entered the port to obtain a license to hire more men for its crew, but
was already denied three times. The reason argued by the Canadian authorities
for the refusal of the license is that the schooner was already registered in the
American register. The Tattler was then seized upon entering the port. The issue
is WoN the British Government was responsible for the detention of the Tattler.
The tribunal held that they were responsible because the issuance of the license
was ministerial and it was not the fault of the Tattler that the Canadian
authorities refused to issue the license. Thus, the Canadian authorities cannot
refuse to give the license then seize the Tattler for not possessing the license.
Moreover, the Tattler was already recognized as a fishing vessel by the Canadian
authorities under the first claim. Even if the Canadian authorities were not sure
of the status of the vessel, it was their fault for not discerning its status in the
first place, and this constituted error of judgment. Due to these, the Tattler is
entitled to indemnities.
DOCTRINE: Settlement of disputes between nations may be waived by express
stipulation.
FACTS:
32. First Claim:
33. An American schooner named Tattler was seized on April 10, 1905 to April
16, 1905 by Canadian authorities in Liverpool, Nova Scotia. This is based
on an alleged violation of the Treaty entitled “An Act respecting fishing by
foreign vessels”.
34. In consideration of the release of the American schooner Tattler under
detention at the port of Liverpool, Nova Scotia (on payment of the fine of
five hundred dollars, demanded by the Honourable Minister of Marine and
Fisheries of Canada, or by the Collector of Customs at said port) waives any
right or claim to any court of tribunal concerning the detention or any loss
or damage occurred due to such.
35. US paid the $500 to the Canadian authorities but was made under protest.
36. But neither the protest nor the receipt given by the Canadian authorities
contained any reservation of the waiver to pursue the issue to any court or
tribunal.
37. The documents submitted proved that the consent of the British
Government to release the vessel was hinged on two conditions:
a. Payment of $500
b. The owners undertaking to waive any right or claim before any
court and the protest against the payment does not invalidate the
waiver
38. US was arguing that any renunciation of its guarantee against any claims
are not binding upon them.
39. Second Claim:
40. The American Tattler was seized again on December 15, 1905 in the port of
North Sydney, Cape Breton for violating Canadian Statute entitled “An Act
respecting fishing vessels of the United States”
41. The Tattler sailed from Gloucester, Massachussetts to Newfoundland on a
salt herring voyage. When it moved to North Sydney, Cape Breton, it
entered its port to obtain a license from Canadian authorities in order to get
more men as members of its crew.
42. It was shown in the documents that the Tattler was already refused three
separate requests for the license on the ground that the Tattler was already
on the American register and did not hold an American fishing license, and
the refusal to give the Canadian license led to the shipping of men without a
license.
43. It is established by a report of the Canadian authorities to the Minister of
Marine and Fisheries of Canada dated at Ottawa, December 15, 1905
(British answer, annex 51), that up to that season United States vessels
registered as trading vessels visited Newfoundland for the purpose of
obtaining cargoes of frozen herring, and were afforded all the ordinary port
privileges extended to trading vessels. Newfoundland, however, in that
year, i.e., 1905, passed an Act preventing such vessels from procuring bait
fishes and herring within the territorial jurisdiction of Newfoundland, and
they were forced to catch their cargoes of fish for themselves, and so
became fishing vessels. As they had not the necessary crews and could not
under the Newfoundland regulations ship them in Newfoundland waters, it
became necessary for them either to return home and procure the necessary
crews in Canadian ports. In the early part of the season the Canadian local
custom officials were not very clear as to the status of these vessels under
 the changed conditions. The Canadian Government, however, decided that
the moment they shipped crews to catch fish they changed their character
and became fishing vessels, and as such must procure a Canadian licence,
under the Canadian Act. When the Government's decision was made known
to the officials, this course was followed.
44. In the following month, i.e., November. 1905, information was received by
the owners of the Tattler that the Canadian authorities at North Sydney had
discovered their error in regard to the licence requested by and refused to
the schooner, and that they were ready to issue the licence on receipt of the
proper fee. The owners mailed the amount without delay to the Canadian
authorities at North Sydney.
45. By that time the Tattler had returned to Gloucester and sailed again for
Newfoundland, and on December 15th owing to bad weather she entered
North Sydney for shelter. She was immediately seized on the charge of
having, on her previous trip, shipped men without a licence. Telegraphic
correspondence took place between the owners and the Canadian authorities
to ascertain the facts. But it was not until three days later, i.e., on December
18. 1905 that her release was obtained.
ISSUES:
18. WoN the Tribunal can try the claim relating to the seizure and detention of
the Tattler between April 10 to April 16 – NO. It was proven through
evidence of the waiver to pursue any claim to any court or tribunal pursuant
to the agreement of the release of the Tattler.
19. WoN the British Government was responsible for the detention of the
Tattler on December 15 to December 18 – YES. It was ministerial for the
Canadian authorities to grant the Tattler the license.
Government in their answer and argument contend that the captain of the
schooner had never expressly informed the Canadian Collector of Customs
that his vessel was a fishing vessel. But it is to be observed that this same
ship, a few months before, sailing under exactly the same conditions and
entering Canadian ports, had been treated as a fishing vessel, blacklisted
and seized as one by the Canadian authorities. This was the first claim.
3. That this fact could not have been and was not forgotten is shown by the
aforesaid Canadian report of December 16, 1905 (British answer, annex
51). In any case, it was admitted by the Canadian authorities (ibid.) that the
officials were at that time insufficiently informed and uncertain as to the
exact status of such vessels. Such an error of judgment by the Canadian
officials shall not result in prejudice to the foreign ship in question. Under
these circumstances the Tattler is entitled to an indemnity
4. As to the amount of the indemnity
a. The claim is for the alleged loss of 665 barrels of herring valued at
52,100, which it is contended the vessel did not catch because of
the three days detention. But no evidence is produced as to the
certainty of this prospective catch. Nobody can say whether the
vessel would have made such a catch, or whether it would have
encountered some mishap of the sea. Taking into consideration the
trouble undergone by the owners, the period of the detention, and
the tonnage, equipment and manning of the vessel, this Tribunal
thinks that the sum of six hundred and thirty dollars ($630) is a just
indemnity

RULING: First claim - This Tribunal decides that the claim relating to the seizure
and detention of the American schooner Tattler on and between April 10 and April
16, 1905, must be dismissed.

Second Claim - This Tribunal decides that the Government of His Britannic Majesty
must pay to the Government of the United States the sum of six hundred and thirty
dollars ( S630) for the seizure and detention of the American schooner Tattler on and
between December 15 and 18, 1905. As to the interest, further decision will be
given.

RATIO:
1. First issue: It was proven through evidence of the waiver to pursue any
claim to any court or tribunal pursuant to the agreement of the release of the
Tattler.

2. Second issue: It is difficult to admit that a foreign ship may be seized for
not having a certain document when the document has been refused to it by
the very authorities who required that it should be obtained. The British
 028 ESTONIA v. LITHUANIA (GALINDEZ)
28 February 1939 | Guerrero. | Settlement of Disputes
PETITIONER: Estonia
RESPONDENTS: Lithuania
SUMMARY: The First Company of Secondary Railways was founded in St.
Petersburg, Russia. A decree by the Central Executive Committee placed in the
hands of the Soviet Government the shares, assets and liabilities of companies
existing in Russia, including the “First Company of Secondary Railways”. After
this, Lithuania proclaimed itself as an independent state and Estonia followed.
The Lithuanian Government took possession of the Panevezys-Sventziany
railway situated in territory which became part of Lithuania’s territory. A law
was promulgated in Estonia declaring that the concession of the First Company
in Russia and all railways of the company in the territory of the Estonian
Republic shall be bought out and become property of the Treasury. However, the
Estonian Government proceeded to revise and amend statutes in accordance with
Estonian law and with a view to the exercise of powers to be enjoyed by the
Company in Estonia (the name of the Company wa schanged to Esimene).
The BOD of Esimene sent to the Lithuanian Government a request asking it to
give instructions for the necessary steps to be taken for the handing over of the
Panevezys-Saldutiskis line to legal owners. A memorandum accompanied by a
petition from the BOD of Esimene was transmitted to the government of
Lithuania stating that former Russian company transformed into an Estonian
company with the same titles and accordingly it claimed fair compensation for
the Panevezys line. The Lithuanian government referred to its council of state
the question of whether the Esimene company was justified in putting forward a
claim against the Lithuanian Government in respect of the Panevezys railway.
The Lithuanian denied their claim and said it no longer existed.
Negotiations continued for the purchase by the Lithuanian Government. It said
that it was a matter of their jurisdiction and a matter of civil law. The Estonion
Government questioned such jurisdiction and argued that there was a violation of
the Commercial Convention between Estonia and Lithuania. The Estonian
Government also informed the Lithuanian Government that it intended to bring
the case before the Permanent Court of International Justice.
ISSUE: WoN Estonian Government should have first exhausted its remedies in
Lithuanian Courts before moving it up to the ICJ – YES, because in principle,
the property rights and contractual rights of individuals depend in every state on
municipal law and more particularly falls within the jurisdiction of municipal
tribunals.
The question as to whether or not the Lithuanian courts have jurisdiction to
entertain a particular suit depends on Lithuanian law. Until it has been clearly
shown that Lithuanian courts have no jurisdiction to entertain a suit by the
Esimene company as to its title to the Panevezys-Saldutiskis railway, the court
cannot accept the contention of Estonia that the rule as to exhaustion of local
remedies does not apply
DOCTRINE: Property rights and contractual rights of individuals depend in
every state on municipal law and more particularly falls within the jurisdiction of
municipal tribunals
FACTS:
414. The Estonian Government instituted proceedings before the Court against
the Lithuanian Government owing to the refusal of the latter to recognize
the proprietary and concessionary rights claimed by a company knowin as
the Esimene Juurdeveo in respect of the Panevezys-Saldutiskis railway,
which has been seized and operated by the Lithuanian Government.
415. In 1892 a company was founded at St. Petersburg under the name of the
"First Company of Secondary Railways in Russia", and its statutes were
approved by Imperial decree
416. Under the Statute, the Company had for its object "the construction and
operation of broad and narrow gauge approach and secondary railways in
general for public and private use, and the construction, operation and sale
of transportable railways"
417. The Company was also authorized to construct and operate railways of
every kind and type on its own account and at its own risk.
418. By an Imperial decree of November 1897, the Company was authorized to
construct and operate a railway between the station at Sventziany on the St.
Ptersburg-Warsaw railway, and a station at Panevys on the Libau-Romny
railway.
419. The statutes were revised nd received Imperial sanction, and partial
amendments were approved.
420. A general meeting of shareholders took place after which the October
revolution took place.
421. A decree by the Central Executive Committee placed in the hands of the
Soviet Government the shares, assets and liabilities of companies existing in
Russia, including the “First Company of Secondary Railways”
422. After this, Lithuania proclaimed itself an independent state, and Estonia
followed.
423. A decree was promulgated declaring “to be the property of the Russian
Socialist Federated Soviet Republic” all industrial and commercial
undertakings in Soviet Russia.
424. Until special orders were issued, untdertakings which had been declared the
property of the Soviet Republic were “regarded as leased rent free to the
former owners”
425. If they abandoned their posts/showed negligence, they incurred criminal
liability.
426. A second Soviet decree was promulgated, stating that the boards of former
private railways which became the property of the Republic were abolished
and replaced by a liquidation commission for each line.
427. Another decree was promulgated providing that the shares of joint stock
companies which have been nationalized/sequestrated are annulled.
428. The Lithuanian Government took possession of the Panevezys-Sventziany
railway situated in territory which had become part of the State of
Lithuania.
429. The Russian Socialist Federated Soviet Republic signed its first treaty with
the new Baltic states: The Treaty of Tartu with Estonia.
430. This treaty concluded between the Soviet Republic and Estonia merits
special attention because it contains detailed provisions as to the fate of
private property situated in Estonian territory.
431. Under Art. 11 of the Treaty, Russia renounces all rights of the Russian
Treasury to the movable and immovable property of individuals which
previously did not belong to Russia, insofar as such property may be
situated in Estonian territory. All such property became Estonia’s property.
432. A law was promulgated in Estonia declaring that the concession of the First
Company of Secondary Railways in Russia all railways of this company in
the territory of the Estonian Republic shall be bought out and become
property of the Treasury.
433. However, the Estonian Government proceeded to revise and amend statutes
in accordance with Estonian law and with a view to the exercise of powers
to be enjoyed by the Company in Estonia (the name of the Company wa
schanged to Esimene)
434. A general meeting was then held in Talliinn authorizing the BOD to sell the
line situated in Lithuania and the lines in Latvia and Poland. Another
meeting was held to which particular consideration was given to the
question of Panevezys-Saldutikis railway.
435. The BOD of Esimene sent to the Lithuanian Government request asking it
to give instructions for the necessary steps to be taken for the handing over
of the Panevezys-Saldutiskis line to legal owners.
436. A memorandum accompanied by a petition from the BOD of Esimene was
transmitted to the government of Lithuania stating that former Russian
company transformed into an Estonian company with the same titles and
accordingly it claimed fair compensation for the Panevezys line.
437. The Lithuanian government referred to its council of state the question of
whether the Esimene company was justified in putting forward a claim
against the Lithuanian Government in respect of the Panevezys railway. The
Lithuanian denied their claim and said it no longer existed.
438. Negotiations continued for the purchase by the Lithuanian Government. It
said that it was a matter of their jurisdiction and a matter of civil law.
439. The Estonion Government questioned such jurisdiction and argued that
there was a violation of the Commercial Convention between Estonia and
Lithuania.
440. The Estonian Government also informed the Lithuanian Government that it
intended to bring the case before the Permanent Court of International
Justice.
ISSUE/s:
408. WoN Estonian Government should have first exhausted its remedies in
Lithuanian Courts before moving it up to the ICJ – YES, because in
principle, the property rights and contractual rights of individuals depend in
every state on municipal law and more particularly falls within the
jurisdiction of municipal tribunals.
RULING: The claim presented by the Estonian Government could not be
entertained.
RATIO:
1. Estonia must prove that at the time when the injury occurred which is
alleged to involve international responsibility of Lithuania the Company
suffering the injury possessed Estonian nationality. Thisi s because the
grounds on which Lithuania disputes Estonia’s right to take up the case on
behalf of the Company that the claim lacks national character, cannot be
separated from those on which Lithuania disputes the Company’s alleged
right to the railway.
2. Lithuania’s objection is based on Estonia’s non-observance of the rule of
international law requiring the exhaustion of remedies of international law
requiring the remedies afforded by municipal law.
3. In principle, the property rights and contractual rights of individuals depend
in every state on municipal law and more particularly falls within the
jurisdiction of municipal tribunals.
4. The question as to whether or not the Lithuanian courts have jurisdiction to
entertain a particular suit depends on Lithuanian law.
5. Until it has been clearly shown that Lithuanian courts have no jurisdiction
to entertain a suit by the Esimene company as to its title to the Panevezys-
Saldutiskis railway, the court cannot accept the contention of Estonia that
the rule as to exhaustion of local remedies does not apply.
6. The rule of international law as to exhaustion of local remedies has never
been held to require that a claimant should be bound to institute proceedings
on a point on which the highest court has already given a decision.
a. Estonia is claming that the SC of Lithuania has already held there’s
no continuity between the Russian company and the Estonian
company, and has already given an adverse decision.
7. It is important to note that the Estonian Company has not instituted any
legal proceedings before the Lithuanian Courts in order to establish its title
 to the railway.
8. The court declares that the objection regarding the non-exhaustion of
remedies is well-founded and declares that the claim presented by the
Estonian Government cannot be entertained.
 029 Nottebohm Case (Liechtenstein v. Guatemala) 28. After WWII outbreak, he applied for citizenship by naturalization in
(Gonzales; edited Santos’) Liechtenstein through a waiver of the residence requirement, paying his
April 6, 1995 | ICJ | Settlement of disputes naturalization fees, and giving a deposit for payment of taxes
29. He’s granted citizenship and received a Liechtenstein passport.
30. He received a visa from the Guatemalan Consul in Zurich.
PETITIONER: Principality of Liechtenstein
31. Nottebohm returned to Guatemala.
RESPONDENT: Republic of Guatemala
32. Before declaring war on Germany, US blacklisted Nottebohm and froze his
US assets.
SUMMARY: Nottebohm was a German national by birth. At the age of 24, he
33. Guatemala entered World War II against Germany and arrested Nottebohm
moved to Guatemala where he maintained his residence and business. After the
as a dangerous enemy alien and deported him to the US, where he was
WWII outbreak, he applied for citizenship by naturalization in Liechtenstein,
interned until 1946.
through waiver of the residence requirement. The application was approved.
34. He returned to Liechtenstein after Guatemala refused his application for
Nottebohm returned to Guatemala. Guatemala then entered World War II against
readmission.
Germany and arrested Nottebohm as dangerous enemy alien (probably because of
35. Guatemala confiscated his property on the grounds that he’s an enemy
his original German citizenship) and deported him to the US where he was interned
alien.
until the end of the war. Guatemala confiscated his propery. He returned to
36. Liechtenstein brought this action against Guatemala, asking the Court to
Liechtenstein, after Guatemala refused his application for readmission. Liechtenstein
declare that Guatemala in arresting, detaining, expelling and refusing to
now brought this against Guatemala asking the Court to declare that Guatemala in
readmit Mr. Nottebohm and in seizing and retaining his property without
arresting, detaining, expelling and refusing to readmit Mr. Nottebohm and in seizing
compensation acted in breach of their obligations under international
and retaining his property without compensation acted in breach of their obligations
law and consequently in a manner requiring the payment of reparation.
under international law and consequently in a manner requiring the payment of
37. Guatemala, referring to a well - established principle of international law,
reparation. Because of Nottebohm’s naturalisation, Liechtenstein is entitled to claim
that ‘it is the bond of nationality between the State and the individual
from Guatemala in his behalf. The issue is WoN Liechtenstein can sue on behalf of
which alone confers upon the State the right of diplomatic protection’,
Nottebohm – NO. In cases of dual nationality, where the question arose with regard
asked the Court to declare the claim inadmissible on grounds of the
to the exercise of protection, the real and effective nationality test has been applied.
nationality of the claimant.
The nationality conferred on Nottebohm by Liechtenstein bestows upon
38. Liechtenstein considers itself to be acting in conformity with this principle
Liechtenstein no sufficient title to the exercise of protection in respect of Nottebohm
and contends that Nottebohm is its national by virtue of the naturalization.
since the only links to be discovered between the Liechtenstein and Nottebohm are
39. Guatemala requests the Court to declare that Liechtenstein’s claim
the short sojourns; without settled abode, prolonged residence nor intention of
inadmissible and sets forth a number of grounds relating to the nationality
settling there.
of Liechtenstein granted to Nottebohm by naturalization.
40. Guatemala in Zurich entered a visa in the Liechtenstein passport of Mr.
DOCTRINE: In cases of dual nationality, with regard to the exercise of protection,
Nottebohm for his return to Guatemala; that on January 29,1940 Nottebohm
what is preferred is the real and effective nationality, that which accorded with the
informed the Ministry of External Affairs in Guatemala that he adopted the
facts, that based on stronger factual ties between the person concerned and one of the
nationality of Liechtenstein and therefore requested that the entry relating to
States whose nationality is involved (evidenced by habitual residence of the
him in the Register of Aliens should be altered accordingly, a request which
individual, his family ties, his participation in public life, attachment shown by him
was granted on January 31; that on February 9, 1940 a similar amendment
for a given country and inculcated in his children, etc – which is absent between the
was made to his identity document, and lastly that a certificate to the same
individual Nottebohm and Principality of Liechtenstein)
effect was issued to him by the civil registry of Guatemala on July 1,1940.
41. His actual connections with Liechtenstein were extremely questionable. No:
FACTS: a. settled abode,
23. Nottebohm was a German national by birth. b. prolonged residence in that country at the time of his application
24. At the age of 24, he moved to Guatemala, where he maintained a residence for naturalization
and a business enterprise. c. intention of settling there
25. He made business trips to Germany. 42. The application indicates that he’s paying a visit there and confirms the
26. 1931-1939, he visited a brother in Liechtenstein several times. transient character of this visit by its request that the naturalization
27. His relatives and friends lived in Germany or Guatemala. proceedings should be initiated and concluded without delay.
 43. He returned to Guatemala very shortly after his naturalization and showed
every intention of remaining there. If Nottebohm went to Liechtenstein in
1946, this was because of the refusal of Guatemala to admit him.
44. Liechtenstein’s argument:
a. Guatemala formerly recognized the naturalization which it now
challenges and cannot therefore be heard to put forward a
contention which is inconsistent with its former attitude.
b. The Consul-General of Acts of the Guatemalan authorities
proceeded on the basis of the statements made to them by the
person concerned.
ISSUE: WoN Liechtenstein can sue on behalf of Nottebohm – NO, because the
nationality conferred on Nottebohm by Liechtenstein bestows upon Liechtenstein no
sufficient title to the exercise of protection in respect of Nottebohm since the only
links to be discovered between the Liechtenstein and Nottebohm are the short
sojourns; without settled abode, prolonged residence nor intention of settling there.
RULING: The Court, by eleven votes to three, holds that the claim submitted by the
Government of the Principality of Liechtenstein is inadmissible.
RATIO:
43. When Nottebohm presented himself before the Guatemalan authorities,
Nottebohm had before them a private individual. There was no relationship
between governments. Neither did Guatemala then recognize that the
naturalization conferred upon Nottebohm gave Liechtenstein any title to the
exercise of protection.
44. A letter of the Swiss consul to the Minister of External Affairs, reference is
made to the entry on the Black Lists of “Frederick Nottebohm, a national of
Liechtenstein.”
45. Guatemala expressly stated that it could not “recognise that Mr.
Nottebohm, a German subject habitually resident in Guatemala, has
acquired the nationality of Liechtenstein without changing his habitual
residence”, which is an express denial by Guatemala of Nottebohm’s
Liechtenstein nationality.
46. There’s no proof that before the institution of proceedings, Guatemala had
recognized Liechtenstein’s title to exercise protection in favor of
Nottebohm and that it is thus precluded from denying such a title.
47. It is for Liechtenstein, as it is for every sovereign State, to settle by its own
legislation the rules relating to the acquisition of its nationality, and to
confer that nationality by naturalization granted by its own organs in
accordance with that legislation.
48. Nationality has its most immediate, its most far - reaching and, for most
people, its only effects within the legal system of the State conferring it.
49. Nationality serves to determine that the person upon whom it is conferred
enjoys the rights and is bound by the obligations which the law of the
State in question grants to or imposes on its nationals. This is implied in
the wider concept that nationality is within the domestic jurisdiction of the
State.
50. To exercise protection, to apply to the Court is to place oneself on the plane
of international law which determines whether a State is entitled to exercise
protection.
NATURALIZATION
51. Naturalization of Nottebohm was an act performed by Liechtenstein in the
exercise of its domestic jurisdiction. The question to be decided is whether
that act has the international effect here under consideration. International
practice provides many examples of acts performed by States in the
exercise of their domestic jurisdiction which do not necessarily or
automatically have international effect, which are not necessarily and
automatically binding on other States or which are binding on them only
subject to certain conditions.
52. When one State has conferred its nationality upon an individual and another
State has conferred its own nationality on the same person, it may occur that
each of these States, considering itself to have acted in the exercise of its
domestic jurisdiction, adheres to its own view and bases itself thereon in
so far as its own actions are concerned.
53. In so doing, each State remains within the limits of its domestic
jurisdiction.
54. This situation may arise on the international plane and fall to be considered
by international arbitrators or by the courts of a third State.
55. If arbitrators or the courts of such a State should confine themselves to the
view that nationality is exclusively within the domestic jurisdiction of the
State, it would be necessary for them to find that they were confronted by 2
contradictory assertions made by two sovereign States, assertions which
they would consequently have to regard as of equal weight, which would
oblige them to allow the contradiction to subsist and thus fail to resolve the
conflict submitted to them.
NATIONALITY
56. International arbitrators have decided numerous cases of dual nationality,
where the question arose with regard to the exercise of protection. They
have given their preference to the real and effective nationality, that which
accorded with the facts, that based on stronger factual ties between the
person concerned and one of the States whose nationality is involved.
57. Different factors are taken into consideration, and their importance will vary
from one case to the next: the habitual residence of the individual
concerned is an important factor, but there are other factors such as the
center of his interests, his family ties, his participation in public life,
attachment shown by him for a given country and inculcated in his
children, etc.
58. Courts of 3rd States, when they have before them an individual whom 2
other States hold to be their national, seek to resolve the conflict by having
recourse to international criteria and their prevailing tendency is to prefer
 the real and effective nationality (same with writings of publicists and in
practice)
59. National laws reflect this tendency when, inter alia, they make
naturalization dependent on conditions indicating the existence of a
link, which may vary in their purpose or in their nature but which are
essentially concerned with this idea.
60. Liechtenstein Law of January 4th, 1934: The practice of certain States
which refrain from exercising protection in favor of a naturalized person
when he has in fact, by his prolonged absence, severed his links with what
is no longer for him anything but his nominal country, manifests the view of
these States that, in order to be capable of being invoked against another
State, nationality must correspond with the factual situation.
61. A similar view is manifested in the relevant provisions of the bilateral
nationality treaties concluded between the USA and other States since 1868,
such as those sometimes referred to as the Bancroft Treaties, and in the Pan-
American Convention, signed at Rio de Janeiro on August 13th, 1906, on
the status of naturalized citizens who resume residence in their country of
origin.
62. The character thus recognized on the international level as pertaining to
nationality is in no way inconsistent with the fact that international law
leaves it to each State to lay down the rules governing the grant of its
own nationality.
63. The reason for this is that the diversity of demographic conditions has
made it impossible for any general agreement to be reached on the
rules relating to nationality, although the latter by its very nature
affects international relations.
64. The best way of making such rules accord with the varying demographic
conditions in different countries is to leave the fixing of such rules to the
competence of each State.
65. A State cannot claim that the rules it has thus laid down are entitled to
recognition by another State unless it has acted in conformity with this
general aim of making the legal bond of nationality accord with the
individual’s genuine connection with the State which assumes the defense
of its citizens by means of protection as against other States.
66. The requirement that such a concordance must exist is to be found in the
studies carried on in the course of the last 30y upon the initiative and under
the auspices of the League of Nations and the UN.
67. It explains the provision which the Conference for the Codification of
International Law, held at The Hague in 1930, inserted in Art. I of the
Convention relating to the Conflict of Nationality Laws: The law enacted
by a State for the purpose of determining who are its nationals “shall
be recognized by other States in so far as it is consistent with
international custom, and the principles of law generally recognized
with regard to nationality.”
68. Art. 5 of the Convention refers to criteria of the individual’s genuine
connections for the purpose of resolving questions of dual nationality
which arise in 3rd States.
69. According to the practice of States, to arbitral and judicial decisions and to
the opinions of writers, nationality is a legal bond having as its basis a
social fact of attachment, a genuine connection of existence, interests
and sentiments, together with the existence of reciprocal rights and
duties.
70. It may be said to constitute the juridical expression of the fact that the
individual upon whom it is conferred, either directly by the law or as the
result of an act of the authorities, is in fact more closely connected with the
population of the State conferring nationality than with that of any other
State. Conferred by a State, it only entitles that State to exercise protection
vis-a-vis another State, if it constitutes a translation into juridical terms of
the individual’s connection with the State which has made him its national.
71. Diplomatic protection and protection by means of international judicial
proceedings constitute measures for the defense of the rights of the State.
As the PCIJ has said and repeated, “by taking up the case of one of its
subjects and by resorting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting its own rights — its
right to ensure in the person of its subjects respect for the rules of
international law.”
72. Since this is the character which nationality must present when it is invoked
to furnish the State which has granted it with a title to the exercise of
protection and to the institution of international judicial proceedings, the
Court must ascertain whether the nationality granted to Nottebohm by
means of naturalization is of this character or, in other words, whether the
factual connection between Nottebohm and Liechtenstein in the period
preceding, contemporaneous with and following his naturalization appears
to be sufficiently close, so preponderant in relation to any connection which
may have existed between him and any other State, that it is possible to
regard the nationality conferred upon him as real and effective, as the exact
juridical expression of a social fact of a connection which existed
previously or came into existence thereafter.
73. Naturalization, not a matter to be taken lightly, involves breaking of a
bond of allegiance and establishment of a new bond of allegiance. It may
have far - reaching consequences and involve profound changes in the
destiny of the individual who obtains it.
74. It concerns him personally, and to consider it only from the point of view
of its repercussions with regard to his property would be to misunderstand
its profound significance. In order to appraise its international effect, it is
impossible to disregard the circumstances in which it was conferred, the
serious character which attaches to it, the real and effective, and not merely
the verbal preference of the individual seeking it for the country which
grants it to him.
75. At the time of his naturalization, does Nottebohm appear to have been more
closely attached by his tradition, his establishment, his interests, his
activities, his family ties, his intentions for the near future to Liechtenstein
than of any other State? No.
76. Guatemala is under no obligation to recognize a nationality granted in
such circumstances.
77. Liechtenstein consequently is not entitled to extend its protection to
Nottebohm vis-a-vis Guatemala and its claim must, for this reason, be held
to be inadmissible.
78. No indication is given of the grounds warranting the waiver of the condition
of residence, required by the 1934 Nationality Law, which waiver was
implicitly granted to him.
79. There is no allegation of any economic interests or of any activities
exercised or to be exercised in Liechtenstein, and no manifestation of any
intention whatsoever to transfer all or some of his interests and business
activities to Liechtenstein.
80. The only links to be discovered between the Principality and Nottebohm are
the short sojourns already referred to and the presence in Vaduz of one of
his brothers: but his brother’s presence is referred to in his application
for naturalization only as a reference to his good conduct. Other
members of his family have even asserted Nottebohm’s desire to spend his
old age in Guatemala.
81. These facts clearly establish:
a. Absence of attachment between Nottebohm and Liechtenstein
b. Existence of a long - standing and close connection between him
and Guatemala, a link which his naturalization in no way
weakened.
82. Naturalization was not based on any real prior connection with
Liechtenstein, nor did it alter the manner of life of the person upon
whom it was conferred in exceptional circumstances of speed and
accommodation. In both respects, it was lacking in the genuineness
requisite in an act of such importance, if it is to be entitled to be respected
by a State in the position of Guatemala. It was granted without regard to the
concept of nationality adopted in international relations.
83. Naturalization was asked for not so much for the purpose of obtaining a
legal recognition of Nottebohm’s membership in fact in the population of
Liechtenstein, as it was to enable him to substitute for his status as a
national of a belligerent State that of a national of a neutral State, with the
sole aim of thus coming within the protection of Liechtenstein but not
of becoming wedded to its traditions, its interests, its way of life or of
assuming the obligations — other than fiscal obligations — and exercising
the rights pertaining to the status thus acquired.
84. The Court is not therefore called upon to deal with the other pleas in bar put
forward by Guatemala or the conclusions of the Parties other than those on
which it is adjudicating in accordance with the reasons indicated above.
 030 Barcelona Traction Case (Belgium vs. Spain) (Gueco).
February 5, 1970 | State responsibility
PETITIONER: Belgium
RESPONDENTS: Spain
SUMMARY:
Barcelona Traction is a corporation incorporated under the laws of Canada
where is had its principal office. To supply electricity in Catalonia, Spain, it
created several subsidiary companies, some of which were in Canada and Spain.
Several Belgian nationals held significant shares in the company, and Barcelona
Traction issued several bonds to them on different occasions. The servicing of
the bonds were, however, suspended due to the Spanish Civil War. After the
war, the Spanish government refused to authorize transfer of foreign currency,
which was necessary for the resumption of the servicing of the bonds. Because
of this, Barcelona was unable to fulfill its obligations, and Spain thereafter
declared the corporation bankrupt and ordered the seizure of the assets of its
subsidiaries in Spain. This caused prejudice to the shareholders, many of which
were Belgian. Belgium now brings an action in behalf of its nationals (who
were shareholders) claiming reparations due to the conduct of the Spanish
authorities (allegedly contrary to IL) leading to damage to its nationals. ISSUE:
Does Belgium have the jus standi to exercise diplomatic protection of
shareholders in a Canadian company—NO, DIPLOMATIC PROTECTION IS
EXERCISED ONLY BY THE STATE OF THE COMPANY. Municipal law
principles on corporate law were applied in this case. In municipal law, the
concept of the company was founded on a firm distinction between the rights of
the company and those of the shareholder. It is the corporation, as a separate
entity from its stockholders, whose rights were violated. The interests of the
shareholder may have been affected, but that doesn’t mean that they have a right
to bring the action – unless for exceptional circumstances. The nationality of the
corporation is Canadian, not Belgian; as it is in Canada that it was incorporated
and maintains its principal office. It is with Canada that the corporation shares
its “genuine connection” even if it engaged in business in other countries. That
being the case, it is Canada, not Belgium, which has the right to bring the action
– and only in behalf of the corporation.
DOCTRINE:
The general rule of international law is that only the national State of the
company has the right to exercise diplomatic protection for the purpose of
seeking redress. No rule of international law expressly conferred such a right on
the shareholder’s national State. Exceptions to the general principle: (a) The
case of the company having ceased to exist, and
(b) The protecting State of the company lacks the capacity to take action.
FACTS:
1. Barcelona Traction, Light and Power Company (“Barcelona Traction”), was
incorporated in 1911 in Toronto (Canada), where it has its head office. For
the purpose of creating an electric power production and distribution system
in Catalonia (Spain), it formed a number of subsidiary companies, of which
some had their registered offices in Canada and the others in Spain.
2. In 1936, the subsidiary companies supplied the major part of Catalonia’s
electricity requirements. According to the Belgian Government, some years
after the First World War, Barcelona Traction’s share capital came to be
very largely held by Belgian nationals but this contention was denied by the
Spanish Government.
3. Barcelona Traction issued several series of bonds, principally in sterling.
The sterling bonds were serviced out of transfers to Barcelona Traction
effected by the subsidiary companies operating in Spain.
4. The servicing of the Barcelona traction bonds was suspended on account of
the Spanish civil war. After that war the Spanish exchange control
authorities refused to authorize the transfer of the foreign currency
necessary for the resumption of the servicing of the sterling bonds.
Subsequently, when the Belgian Government complained of this, the
Spanish Government stated that the transfers could not be authorized unless
it were shown that the foreign currency was to be used to repay debts
arising from the genuine importation of foreign capital into Spain, and that
this had not been established
5. In 1948 three Spanish holders of recently acquired Barcelona Traction
sterling bonds petitioned that court of Reus (Province of Tarragona) for a
declaration adjudging the company bankrupt, on account of failure to pay
the interest on the bonds.
6. On 12 February 1948, a judgment was given declaring the company
bankrupt and ordering the seizure of the assets of Barcelona Traction and of
two of its subsidiary companies.
7. After the end of the Canadian interposition, an action for damages against
Spain was brought by Belgium for the expropriation of the assets of the
Barcelona Traction. According to Belgium, a large majority of the stock of
the company was owned by Belgian nationals.
8. Among others, Spain contended that Belgium lacked standing to sue a
Canadian company, even if the shareholders were Belgian.
ISSUES:
1. Does Belgium have the jus standi to exercise diplomatic protection of
shareholders in a Canadian company—NO, DIPLOMATIC PROTECTION
IS EXERCISED ONLY BY THE STATE OF THE COMPANY.
RATIO:
10. Municipal law principles on corporate law were applied. In municipal law,
the concept of the company was founded on a firm distinction between the
rights of the company and those of the shareholder. Only the company,
 which was endowed with legal personality, could take action in respect of
matters that were of a corporate character. A wrong done to the company
frequently caused prejudice to its shareholders, but this did not imply that
both were entitled to claim compensation. Whenever a shareholder’s
interests were harmed by an act done to the company, it was to the latter
that he had to look to institute appropriate action. An act infringing only the
company’s rights did not involve responsibility towards the shareholders,
even if their interests were affected. International law had to refer to those
rules generally accepted by municipal legal systems. An injury to the
shareholder’s interests resulting from an injury to the rights of the company
was insufficient to found a claim.
11. In this case, it is the corporation, as a separate entity from its stockholders,
whose rights were violated. The interests of the shareholder may have been
affected, but that doesn’t mean that they have a right to bring the action –
unless for exceptional circumstances.
12. Where it was a question of an unlawful act committed against a
company representing foreign capital, the general rule of international
law authorized the national State of the company alone to exercise
diplomatic protection for the purpose of seeking redress. No rule of
international law expressly conferred such a right on the shareholder’s
national State.
13. Exceptions to the general principle:
(a) The case of the company having ceased to exist, and
(b) The protecting State of the company lacks the capacity to take
action.
14. These exceptions are inapplicable in this case. For the first, the Court
observed that while Barcelona Traction had lost all its assets in Spain and
been placed in receivership in Canada, the corporate entity of the company
nevertheless continued to exist. It had not lost its capacity to take corporate
action.
15. For the second, it was not disputed that the company had been incorporated
in Canada and had its registered office in that country, and its Canadian
nationality had received general recognition. The Canadian Government
had exercised the protection of Barcelona Traction for a number of years. If
at a certain point the Canadian Government ceased to act on behalf of
Barcelona Traction, it nonetheless retained its capacity to do so, which
the Spanish Government had not questioned.
16. Given the foregoing, the case should be dismissed. The nationality of the
corporation is Canadian, not Belgian. Therefore, it is Canada, not Belgium,
that has the right to bring the action – and only in behalf of the corporation.
 031 Banco Nacional de Cuba v. Sabbatino (GUSTILO)
March 23, 1964| Justice Harlan II | Settlement of Disputes
PETITIONER:Banco Nacional de Cuba
RESPONDENTS: Peter L.F. Sabbatino
SUMMARY: A contract to purchase Cuban sugar from a wholly owned
subsidaiary of Compania Azucarera Vertientes-Camaquey de Cuba (CAV) a
corporation organized under Cuban law was made by Farr, Whitlock & Co.
(Farr) an American commodities broker. The CAV stock was principally owned
by United States residents. The agreement was for Farr to pay for the sugar in
New York upon the presentation of the shipping documents (e.g. Bill of Lading).
After this deal, a law was enacted in Cuba which empowered the government to
nationalize forcefully, expropriation of property or enterprise in which American
nationals had an interest. The government of Cuba nationalized their sugar
industry and seized the assets of several US-owned sugar producers, including
CAV.
After CAV notified Farr of its claim to the proceeds as rightful owner of the
sugar, Farr refused the documents. This action of Farr resulted in a court order
which appointed Sabbatino as receiver of CAV’s New York assets and enjoined
it from removing the payments from the state. Based on the allegation of the
conversion of the bills of lading seeking to recover the proceeds thereof from
Farr and to enjoin Sabbatino, the receiver from exercising dominion over such
proceeds, the Banco Nacional (BNC) instituted this action in the US Court to get
them to hand over the money for the sugar. BNC argued that the Cuban
nationalization was an official Act of State and should be honored by the US:
The Act of State Doctrine says that the propriety of decisions of other countries
relating to their internal affairs would not be questioned in US courts. Sabbatino
argued that the Act of State Doctrine was inappropriate because: (a) The act in
question was a violation of international law. (b) The doctrine should not be
applied unless the Executive branch asks the court to do so; (c) Cuba had
brought the suit as a plaintiff and had given up its sovereign immunity.
The issue is WoN the Act of State doctrine could be applied, which would
uphold the legality of the expropriation because it was an official act of another
country, not subject to question in US courts?- Yes.
The Court held that the Cuban seizure did not violate international law, because
there was no clear international opinion that a seizure of land or property in a
country by the government of that country was illegal.The Court found that there
was no need for the Executive branch to ask the courts to apply the Act of State
Doctrine. The Court found that it should be assumed to apply because if even a
single court made a mistake and failed to apply it, it could mess up US relations
with other countries.
DOCTRINE: Expropriation did not violate international law, because there was
no clear unity of international opinion disapproving the seizure of land or
property in a country by the government of that country.The interposition of the
Executive was unnecessary to prevent the courts from interfering in affairs of
state, as a single court could upset delicate international negotiations through the
assertion of U.S. law in another country.
FACTS:
441. A contract to purchase Cuban sugar from a wholly owned subsidaiary of
Compania Azucarera Vertientes-Camaquey de Cuba (CAV) a corporation
organized under Cuban law was made by Farr, Whitlock & Co. (Farr) an
American commodities broker. The CAV stock was principally owned by
United States residents.
442. The agreement was for Farr to pay for the sugar in New York upon the
presentation of the shipping documents (e.g. Bill of Lading). After this deal,
a law was enacted in Cuba which empowered the government to nationalize
forcefully, expropriation of property or enterprise in which American
nationals had an interest. The government of Cuba nationalized their sugar
industry and seized the assets of several US-owned sugar producers,
including CAV.
443. Hence, the sugar which Farr had contracted was expropriated from CAV.
Farr however entered into contracts which was similar to the one made with
CAV, with the Banco Para el Comercio de Cuba, which was an
instrumentality of the government. This was done by Farr in order to obtain
consent from the Cuban government before a ship carrying sugar could
leave Cuba.
444. A bill of lading which was also an instrumentality of the Cuban government
was assigned by BNC to Banco Para el Comercio de Cuba, who presented
the bills and a sight draft as required under the contract to Farr in New York
in return for payment. After CAV notified Farr of its claim to the proceeds
as rightful owner of the sugar, Farr refused the documents.
445. This action of Farr resulted in a court order which appointed Sabbatino as
receiver of CAV’s New York assets and enjoined it from removing the
payments from the state. Based on the allegation of the conversion of the
bills of lading seeking to recover the proceeds thereof from Farr and to
enjoin Sabbatino, the receiver from exercising dominion over such
proceeds, the Banco Nacional (BNC) instituted this action in the US Court
to get them to hand over the money for the sugar.
446. BNC argued that the Cuban nationalization was an official Act of State and
should be honored by the US: The Act of State Doctrine says that the
propriety of decisions of other countries relating to their internal affairs
would not be questioned in US courts.
447. Sabbatino argued that the Act of State Doctrine was inappropriate because:
(a) The act in question was a violation of international law. (b) The doctrine
should not be applied unless the Executive branch asks the court to do so;
(c) Cuba had brought the suit as a plaintiff and had given up its sovereign
immunity.
448. The Trial Court & Appellate Court found for Sabbatino.
ISSUE/s:
409. WoN the Act of State doctrine could be applied, which would uphold the
legality of the expropriation because it was an official act of another
 country, not subject to question in US courts?- YES because the Cuban foreign policy efforts, but the amendment has been construed very narrowly
seizure did not violate international law, because there was no clear by subsequent court decisions.
international opinion that a seizure of land or property in a country by Dissent of Justice White
the government of that country was illegal. 418. American courts are not required by the Act of State Doctrine to decide
cases in disregard of international law and of the rights of litigants to a full
RULING: Wherefore, the Court finds for BNC. determination on the merits.
419. The Court's application of the act of state doctrine was too rigid, more so, in
RATIO: fact than the doctrine as applied by other countries.
410. The US Supreme Court found that the policy of US Federal courts would be
to honor the Act of State Doctrine.
411. The Court found that the Cuban seizure did not violate international
law, because there was no clear international opinion that a seizure of
land or property in a country by the government of that country was
illegal.
412. The Court found that there was no need for the Executive branch to ask the
courts to apply the Act of State Doctrine. The Court found that it should
be assumed to apply because if even a single court made a mistake and
failed to apply it, it could mess up US relations with other countries.
413. The Court refused to hold that the expropriation violated international
law, because there was no clear unity of international opinion
disapproving the seizure of land or property in a country by the
government of that country. It noted also that interposition of the
Executive was unnecessary to prevent the courts from interfering in
affairs of state, as a single court could upset delicate international
negotiations through the assertion of U.S. law in another country.
414. Finally, the Court found no bar to application of the doctrine, should be
imposed by the fact that Cuba had brought the suit, comparing this to
the sovereign immunity enjoyed by U.S. States which can sue, but can not
be sued.
415. The Court found that the Act of State Doctrine still applied even
thought the State was a plaintiff. Similar to the idea of sovereign
immunity where States can sue, but cannot be sued.
416. The Act of State Doctrine is applicable because the Act of State doctrine
does not deprive the court of jurisdiction once acquired over a case. The
damages of adjudicating the propriety of such expropriation acts, regardless
of whether the State Department, as it did in this case,asserted that the act
violated international law are too far-reaching for the judicial branch to
attempt.
417. In response to this decision, Congress passed the Second Hickenlooper
Amendment (aka the Sabbatino Amendment) that revoked the
presumption in favor of the validity of the Act of State Doctrine that the
Sabbatino court had established. The Amendment was retroactive and
subsequently found constitutional by the District court and the Cuban bank's
complaint was dismissed. This amendment to the Foreign Assistance
Act has clarified that courts may proceed with an adjudication on
the merits unless the President states that such adjudication may embarrass
 032 Alfred Dunhill of London Inc v. Republic of Cuba (Hilario)
Date | Justice, J. | Settlement of Disputes; Act of State Doctrine/Sovereign Immunity
PETITIONER: Alfred Dunhill of London Inc.
RESPONDENTS: Republic of Cuba
SUMMARY: (note: I think this is a contentious case, the vote was 5 in favor
and 4 against.)
Alfred Dunhill of London Inc. is a company based in the US. It imports cigars
from Cuba. Meanwhile, the Cuban government confiscated the businesses of
several Cuban cigar manufacturers, and the Cuban government named
“intervenors” to take over and run the business. The intervenors continued
operations and shipping to the US, and some purchasers (such as Dunhill)
mistakenly paid the intervenors (instead of the original owners, who really made
and shipped the cigars) for the cigars shipped before the intervenors took over.
Aggrieved, the original owners sued the purchasers (including Dunhill) for
trademark infringement and asked for the money they paid to the intervenors
(which really rightfully belonged to them).
The district court held that the 1960 intervention (Cuba taking over the cigar
industry and appointing intervenors) was an “act of state” so U.S. courts had no
power in the matter. Under the act of state doctrine, the courts of a sovereign
cannot question the acts of another sovereign within its own borders. The
court did, however, have power over the amounts mistakenly paid for pre-
intervention shipments. The purchasers were entitled to set off their mistaken
payments against amounts due for post intervention shipments. DUNHILL,
however, paid more money than the value of the goods it received (in other
words mas malaki utang ng intervenor kay Dunhill compared to what Dunhill
owed the intervenors), so the District Court ordered the intervenors to pay
Dunhill the amount it owed.
The Court of Appeals however reversed and stated that the intervenors’ refusal
to pay is also an act of state, so they can’t do anything about it. Thus, Dunhill
appeals before the SC.
SC ruled US SC has jurisdiction over the case. Dunhill is an American citizen
as it is registered in the US as a corporation. Act of State doctrine does not
apply. The records contain no evidence to support an act of state, there being no
statute, decree or order by the Cuban Government refusing to pay, only a
statement by the interventor’s counsel during trial. Cuba was acting in a
completely commercial action. Refusing to re-pay funds that were mistakenly
paid to them was concluded not to be an act of state but an act of commerce.
Cuba failed to prove that it was fulfilling any governmental role by refusing to
pay Dunhill. Because the court ruled that Cuba was not acting as a state, but
as a completely commercial actor, it applied the restrictive sovereign
immunity doctrine which states that foreign head of states are not immune
from repaying debts or damages regarding situations that are completely
commercial in nature.
DOCTRINE: Foreign head of states are not immune from repaying debts or
damages regarding situations that are completely commercial in nature.
FACTS:
449. (just read the summary box it’s enough hehe) claims of parties:
a. Alfred Dunhill of London, Inc. – claims that the Cuban
government owes them money after Dunhill mistakenly paid the
interventors for a pre-intervention shipment of cigars. All money
for shipments made before the intervention was awarded to the
former owners of the plants and not to the nationalized government
of Cuba. Therefore, Dunhill claims that the interventors took
money that did not belong to them and asks for repayment.
b. Republic of Cuba – claims the Act of State Doctrine and Sovereign
Immunity as its defense in this case. Cuba claims that the
interventors were acting on behalf of the state and are thus not
subject to decisions of the American court system.
ISSUE/s:
89. WoN US SC has jurisdiction over the case? – YES, because Dunhill is an
American citizen as it is registered in the US as a corporation, and this case
involves a commercial claim.
90. WoN Act of State doctrine applies – NO, the doctrine does not apply for an
act of commerce.
RULING: Judgment in question is affirmed.
RATIO:
1. US SC has jurisdiction over the case. Dunhill is an American citizen as it
is registered in the US as a corporation.
2. Act of State doctrine does not apply. The records contain no evidence to
support an act of state, there being no statute, decree or order by the Cuban
Government refusing to pay, only a statement by the interventor’s counsel
during trial.
3. Cuba was acting in a completely commercial action. Refusing to re-pay
funds that were mistakenly paid to them was concluded not to be an act of
state but an act of commerce. Cuba failed to prove that it was fulfilling any
governmental role by refusing to pay Dunhill.
4. Because the court ruled that Cuba was not acting as a state, but as a
completely commercial actor, it applied the restrictive sovereign
immunity doctrine which states that foreign head of states are not
immune from repaying debts or damages regarding situations that are
completely commercial in nature.
5. Justice Powell, concurring: even in cases involving purely political
matters, the courts must decide for themselves whether abstention is
necessary, and it was not necessary in this case.
6. Justice Stevens, concurring: agreeing that the act of state doctrine did not
bar the judgment in favor of the purchasers.
7. Justice Marshall, dissenting: the interventor’s refusal to pay over the
mistaken funds was an act of state regardless of the lack of an express
decree by the Cuban government.
033 BUTTES GAS AND OIL CO. AND ANOTHER V. HAMMER AND on the acts of the government of another done within its own territory. Redress
ANOTHER (HIRANG) of grievances by reason of such acts must be obtained through the means open to
1982 |English Courts| Settlement of Dispute be availed of by sovereign powers as between themselves

PETITIONER: BUTTES GAS AND OIL CO. AND ANOTHER FACTS:

RESPONDENTS: HAMMER AND ANOTHER
9. This action and counterclaim arise from the discovery of oil in a
SUMMARY: The case arose when Occidental Petroleum
“location” (hereafter referred to as “the location”) in the sea bed of the
Corporation(Occidental) filed a case against Buttes Gas and Oil Co. (Buttes)
Arabian Gulf. This lies about nine miles from an island called Abu
before the English Courts claiming that Buttes used improper methods and
Musa. This island is about 40 miles distant from the southern shore. On
colluded with the then Ruler of Sharjah to backdate a decree by the ruler
that southern shore are two neighbouring Arab Emirates, Sharjah and
extending the territorial waters (from 3 to 12 Nautical Miles) of Sharjah as to
Umm al Qaiwain (U.A.Q.). The island of Abu Musa is, and at material
obtain for themselves the benefit of the oil-bearing deposit at the “location”
times was, recognized by both Emirates and by Her Majesty’s
(Read Fact #1) which he claimed was discovered by and belonging to
Government in the United Kingdom to belong to Sharjah.
Occidental (Occidental was permanently deprived of its right to exploit the
10. As the result of various events occurring in 1969-73 Buttes Gas and Oil Co.
“location” due to this). Buttes claimed that the contention of Occidental was pure
(“Buttes”) emerged as concessionaire entitled to exploit the location, to the
slander and that they were able to be the exclusive concessionaire entitled to
exclusion of Occidental Petroleum Corporation (Occidental) and as such the
exploit the “location” by virtue of the Sharjah Decree issued to them by the
present litigation arose. (Both companies are incorporated in California,
Ruler of Sharjah. Moreover, Buttes claimed the court should not exercise
United States of America)
jurisdiction over the issue as such was a transaction between states and not
11. Occidental accused Buttes of using improper methods and colluding with
merely a private transaction (Read Fact #1). However, Occidental was
the then Ruler of Sharjah to backdate a decree by the ruler extending the
claiming that since the Sherja decree was invalid, municipal law will apply
territorial waters (from 3 to 12 Nautical Miles) of Sharjah as to obtain
suppletorily and thus, the English court can take cognizance of the case. The
for themselves the benefit of the oil-bearing deposit at the location
issue is WoN the English Court can take cognizance of the case. The Court ruled
which he claimed was discovered by and belonging to Occidental.
in the negative stating that the issue involve is a transaction between the states
12. Buttes defense contained contained a full and elaborate justification of the
and not merely a private transaction which the court could easily take
slander, alleging the backdating of the decree of the Ruler of Sharjah at the
cognizance of. The court held that for it to be a justiciable issue that it can take
request or on the advice of Buttes and setting out a whole sequence of
cognizance of, there must be a showing that the English Government had a part
events which, it was said, resulted in operating limits, excluding the
in granting the concession to Buttes, but such evidences were lacking. There was
location, being imposed on Occidental.
nothing to show that the that the English Government authorized or
13. As a counterclaim, Occidental alleged that because of the overt acts of
approved, the extension, by decree, of Sharjah’s territorial waters to 12
Buttes, they were permanently deprived of their rights to exploit the
miles from Abu Musa. To the contrary, a letter sent by the English Government
location.
to the Sharjah Ruler showed that the English Government questioned the validity
14. Buttes claimed the court should not exercise jurisdiction in respect of
of the act of the Sharjah Ruler. Moreover, the contention of Occidental that
certain specified acts (ex.Buttes obtaining from the Ruler of Sharjah
municipal laws will apply cannot be appreciated as the case did not involve an
the exlusive right to explore and exploit the location) being acts of state
attack to the validity of the Decree instead it is about its efficacy in international
of the Governments of Sharjah, U.A.Q., Iran and the United Kingdom:
law. Lastly, the Court cited several jurisprudences in order to show that the
alternatively, that certain specified parts of the defense and counterclaim
English Court will not adjudicate upon acts done abroad by virtue of
should be struck out or all proceedings stayed as to any issue arising
sovereign authority. Every sovereign state is bound to respect the independence
therefrom on the ground that they raised matters which are acts of
of every other sovereign state, and the courts of one country will not sit in
state.
judgment on the acts of the government of another done within its own territory.
15. Buttes’ contentions:
Redress of grievances by reason of such acts must be obtained through the
a. English courts will not try an action which would require them to
means open to be availed of by sovereign powers as between themselves
pronounce, directly or indirectly, on rights in immovable property
situated abroad
DOCTRINE: Every sovereign state is bound to respect the independence of
b. They invoked the doctrine of sovereign immunity, in so far as this
every other sovereign state, and the courts of one country will not sit in judgment
excludes actions concerning property which is in the ownership,
 possession or control of a foreign sovereign state, or in which a
foreign state claims an interest
c. They argued that the English courts will not entertain actions either
(a) requiring the interpretation of, or the ascertainment of the
precise nature of obligations arising under, transactions between
foreign sovereign states or (b) questioning the validity or
effectiveness of foreign legislation; or (c) examining the validity of
or motives for, acts of foreign sovereign states in their international
relations; or (d) challenging the legality of acts of Her Majesty’s
Government outside the United Kingdom and not relating to
British subjects
16. Occidental’s contentions:
a. There is no absolute rule forbidding English courts from
entertaining questions relating to foreign land.
b. There is no absolute or general rule forbidding English courts from
“sitting in judgment” upon or “inquiring into” the validity or nature
of a foreign law
c. There is no English law on general doctrine of “act of state” which
can be applied to the facts of the present case
d. The doctrine of sovereign immunity has no application
ISSUE/S:
1) WoN the English Courts can take cognizance of the case - No, the English
Court cannot take cognizance of the case as it involves transaction between
states which is considered to be non-justiciable.
RULING: Buttes’s appeal against the order of the Court of Appeal, dated December
31, 1974, be allowed, that that order be set aside and that an order be made on
Buttes’s summons of July 11, 1980, that upon Buttes by its counsel consenting to all
proceedings on the claim herein being stayed, the counterclaim of the first and
second defendants, Armand Hammer and Occidental Petroleum Corporation, be
stayed
RATIO:
15. The court ruled that for it to be able to take cognizance of the case, it must
be shown that the English Government had a part in granting the concession
to Buttes, however such was lacking in the case at hand.
a. Although evidence show that the English Government had set its
seal of approval on all the relevant dispositions by Sharjah and by
U.A.Q. up to 1971, there is nothing to show that the English
Government authorized or approved, the extension, by decree,
of Sharjah’s territorial waters to 12 miles from Abu Musa.
b. The English Government considered that there were
international law questions as to its validity, and expressed its
own opinion that there was an agreed sea boundary based on a
three-mile limit of territorial waters around Abu Musa (These
were evidenced by a letter sent by the English Government to the
Ruler of Sherjah stating that extent of a state’s territorial waters is
to be determined in accordance with international law and as a
matter of international law, it is not right for a state simply to
extend its territorial waters regardless of the consequences on
its neighbors)
16. These letters show beyond any doubt that Her Majesty’s Government
regarded the issues between Sharjah and U.A.Q. and between their
respective concessionaires, as issues of international law, and involving
difficult problems as to the width of territorial waters, and by implication of
the continental shelf, in the light, not merely of geographical considerations,
but of existing arrangements between Sharjah and U.A.Q., and of the
interests of other states, amongst which Iran must have been in mind
17. Another argument of the Respondents was that the foreign legislation can
be called in question where it is seen to be contrary to international law or
to public policy (Respondents claim that Sharjah decree was invalid) and
that that foreign legislation is only recognised territorially
18. Court said that such contentions did not help the respondents:
a. That the attack on Sharjah’s decree of 1969/70 is not upon its
validity under the law of Sharjah, but upon its efficacy in
international law. It is one thing to assert that effect will not be
given to a foreign municipal law or executive act if it is contrary to
public policy, or to international law and quite another to claim
that the courts may examine the validity, under international law,
or some doctrine of public policy, of an act or acts operating in the
area of transactions between states.
b. To attack the decree of 1969/70 extending Sharjah’s territorial
waters, i.e. its territory, upon the ground that the decree is extra-
territorial seems to me to be circular or at least question begging.
19. Lastly, the Court cited several jurisprudences in order to show that the
English Court will not adjudicate upon acts done abroad by virtue of
sovereign authority
a. Since it does not involve private transaction, we cannot try the
fact whether it be right or wrong.
b. Even if the respondents were claiming that the English courts
were only “sitting in judgment” upon or “inquiring into” the
validity or nature of a foreign law, such must still be read in
accordance with the circumstances present. The court ruled
that the issue at hand still involved transaction between states
and therefore, the English court will not rule upon it.
20. Every sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one country will not sit in judgment on the
acts of the government of another done within its own territory. Redress of
grievances by reason of such acts must be obtained through the means open
to be availed of by sovereign powers as between themselves.
 034 VINUYA VS. ROMULO (ARIELLE)
April 28, 2010 | Del Castillo, J. | Settlement of Disputes
PETITIONER: Isabelita C. Vinuya, et al
RESPONDENTS: Executie Secretary Alberto G. Romulo
SUMMARY: Petitioners are members of the Malaya Lolas, a non-stock, non-
profit organization established for the purpose of providing aid to the victims of
rape by Japanese military forces in the Philippines during WWII. According to
petitioners, the Japanese army attacked villages and systematically raped
women as part of the destruction of the village. As a result of their actions, the
petitioners have spent their lives in misery, having endured physical injuries,
pain and disability, and mental and emotional suffering. Petitioners claim that
since 1998, they have approached the Executive Department requesting
assistance in filing a claim against the Japanese officials and military officers
who ordered the establishment of the comfort women stations in the Philippines.
However, the Executive Department declined to give assistance and took the
position that the individual claims for compensation had been fully satisfied
through Japan’s compliance with the Peace Treaty between the Philippines and
Japan. Petitioners argue that the waiver of claims made by the Philippines in the
Treaty of Peace is void. They allege that the prohibition against crimes against
humanity is jus cogens norms from which no derogation is possible. As such,
waiving the claims of Filipina comfort women and failing to espouse their
complaints is a breach of the Philippine government’s legal obligation not to
afford impunity for crimes against humanity. Respondents maintain that all
claims of the Philippines relative to the war were dealt with in the San Francisco
Treaty of 1951. They also argue that the apologies made by Japan have been
satisfactory, and that Japan had addressed the individual claims of the women
through the atonement money paid by the Asian Womens Fund.
The issue is WoN the Executive Department may be compelled to espouse the
petitioners’ claims for official apology and other forms of reparation against
Japan – NO because the Executive Department has the exclusive prerogative to
determine whether to espouse petitioners’ claims against Japan.
It has been held that Certain types of cases often have been found to present
political questions. One such category involves questions of foreign relations. It
is well-established that the conduct of the foreign relations of our government is
committed by the Constitution to the executive and legislative (the “political”
departments of the government). decisions relating to foreign policy are
delicate, complex, and involve large elements of prophecy. The question
whether the Philippine government should espouse claims of its nationals
against a foreign government is a foreign relations matter, the authority for
which is demonstrably committed by our Constitution not to the courts, but to
the political branches.
In this case, the Executive Department has already decided that it is to the best
interest of the country to waive all claims of its nationals for reparations against
Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question. Neither could petitioners assail the said determination via a
petition for certiorari. The Executive Department has determined that taking up
petitioners’ cause would be inimical to our country’s foreign policy interests,
and could disrupt our relations with Japan, thereby creating serious implications
for stability in this region.
DOCTRINE: The president is the sole organ of the nation in its external
relations, and its sole representative with foreign relations. The conduct of
foreign relations is full of complexities and consequences, sometimes with life
and death significance to the nation especially in times of war. It can only be
entrusted to that department of government which can act on the basis of the
best available information and can decide with decisiveness.
FACTS:
20. Petitioners are all members of the MALAYA LOLAS, a non-stock, non-
profit organization registered with the SEC, established for the purpose of
providing aid to the victims of rape by Japanese military forces in the
Philippines during WWII.
21. Petitioners narrate that the Japanese army attacked villages and
systematically raped women as part of the destruction of the village. Their
communities were bombed, houses were looted and burned, and civilians
were publicly tortured, mutilated, and slaughtered.
22. As a result of the actions of their Japanese tormentors, the petitioners have
spent their lives in misery, having endured physical injuries, pain and
disability, and mental and emotional suffering.
23. Petitioners claim that since 1998, they have approached the executive
department through the DOJ, DFA, and OSG, requesting assistance in filing
a claim against the Japanese officials and military officers who ordered the
establishment of the comfort women stations in the Philippines.
24. However, officials of the executive department declined to assist the
petitioners, and took the position that the individual claims for
compensation had already been fully satisfied by Japan’s compliance with
the Peace Treaty between the Philippines and Japan.
Petitioners’ arguments
12. Petitioners argue that the general waiver of claims made by the Philippine
government in the Treaty of Peace with Japan is void. They claim that the
comfort women system established by Japan, and the brutal rape and
enslavement of petitioners constituted a crime against humanity, sexual
slavery, and torture.
13. They allege that the prohibition against these international crimes is jus
cogens norms from which no derogation is possible. As such, in waiving the
claims of Filipina comfort women and failing to espouse their complaints
against Japan, the Philippine government is in breach of its legal obligation
 not to afford impunity for crimes against humanity.
14. Finally, petitioners also assert that the Philippine government’s acceptance
of the apologies made by Japan as well as funds from the Asian Womens
Fund were contrary to international law.
Respondents Arguments
15. Respondents maintain that all claims of the Philippines and its nationals
relative to the war were dealt with in the San Francisco Peace Treaty of
1951 and the bilateral Reparations Agreement of 1956.
16. Art. 14 of the Treaty of Peace provides:
a. It is recognized that Japan should pay reparations to the Allied Powers for
the damage and suffering caused by it during the war. Nevertheless, it is
also recognized that the resources of Japan are not presently sufficient, if it
is to maintain a viable economy, to make complete reparation for all such
damage and suffering and at the present time meet its other obligations.
b. Except as otherwise provided in the present Treaty, the Allied Powers
waive all reparations claims of the Allied Powers, other claims of the
Allied Powers and their nationals arising out of any actions taken by japan
and its nationals in the course of the prosecution of the war, and claims of
the Allied Powers for direct military costs of occupation.
17. Respondents also argue that the apologies made by Japan have been
satisfactory, and that Japan had addressed the individual claims of the
women through the atonement money paid by the Asian Womens Fund.
ISSUE/s:
WoN the courts may compel the Executive Department to espouse the petitioners’
claims for official apology and other forms of reparation against Japan before the ICJ
and other international tribunals – NO because the Executive Department has the
exclusive prerogative to determine whether to espouse petitioners’ claims against
Japan.
RULING: WHEREFORE, the petition is DISMISSED.
RATIO:
1. The petition lacks merit. From a domestic law perspective, the Executive
Department has the exclusive prerogative to determine whether to espouse
petitioners claims against Japan.
2. Baker vs. Carr remains the starting point for analysis under the political
question doctrine.
3. Political questions refer to those questions which, under the
Constitution, are to be decided by the people in their sovereign
capacity.
4. Certain types of cases often have been found to present political questions.
One such category involves questions of foreign relations. It is well-
established that the conduct of the foreign relations of our government is
committed by the Constitution to the executive and legislative (the
“political” departments of the government).
5. The US Supreme Court has further cautioned that decisions relating to
foreign policy are delicate, complex, and involve large elements of
prophecy.
6. To be sure, not all cases implicating foreign relations present political
questions, and courts certainly possess the authority to construe or
invalidate treaties and executive agreements.
7. However, the question whether the Philippine government should espouse
claims of its nationals against a foreign government is a foreign relations
matter, the authority for which is demonstrably committed by our
Constitution not to the courts, but to the political branches.
8. In this case, the Executive Department has already decided that it is to
the best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The wisdom of
such decision is not for the courts to question. Neither could petitioners
assail the said determination via a petition for certiorari.
9. In the seminal case of US vs. Curtiss-Wright Export Corp., the US Supreme
Court held that the president is the sole organ of the nation in its
external relations, and its sole representative with foreign relations.
10. This ruling has been incorporated in our jurisprudence through Bayan vs.
Executive Secretary. The conduct of foreign relations is full of complexities
and consequences, sometimes with life and death significance to the nation
especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information and
can decide with decisiveness.
11. It is also the President who possesses the most comprehensive and the
most confidential information about foreign countries for our diplomatic
and consular officials regularly brief him on meaningful events all over the
world. He also has unlimited access to ultra-sensitive military intelligence
data.
12. The Executive Department has determined that taking up petitioners’
cause would be inimical to our country’s foreign policy interests, and
could disrupt our relations with Japan, thereby creating serious
implications for stability in this region.
13. In any event, it cannot reasonably be maintained that the Philippine
government was without authority to negotiate the Treaty of Peace with
Japan. Indeed, except as an agreement might otherwise provide
international settlements generally wipe out the underlying private claims,
thereby terminating any recourse under domestic law.
14. Respondents explain that the Allied Powers concluded the Peace Treaty
with Japan not necessarily for the complete atonement of the suffering
caused by Japanese aggression during the war, not for the payment of
adequate reparations, but for security purposes.
15. In the international sphere, traditionally, the only means available for
individuals to bring a claim within the international legal system has been
when the individual is able to persuade a government to bring a claim on
the individuals’ behalf. Even then, it is not the individual’s rights that are
 being asserted, but rather, the state’s own rights.
16. The State, therefore, is the sole judge to decide whether its protection will
be granted, to what extent it is granted, and when will it cease. It retains, in
this respect, a discretionary power the exercise of which may be determined
by considerations of a political or other nature, unrelated to that particular
case.
17. It has been argued that the State has a duty to protect its nationals and act on
his/her behalf when rights are injured. However, at present, there is no
sufficient evidence to establish a general international obligation for States
to exercise diplomatic protection of their own nationals abroad.
18. We fully agree that rape, sexual slavery, torture, and sexual violence are
morally reprehensible as well as legally prohibited under contemporary
international law. However, petitioners take quite a theoretical leap in
claiming that these proscriptions automatically imply that the Philippines is
under a non-derogable obligation to prosecute international crimes.
19. Absent the consent of states, an applicable treaty or a directive by the
Security Council, there is no non-derogable duty to institute proceedings
against Japan.
20. Moreover, petitioners have failed to show that the crimes committed by the
Japanese army violated jus cogens prohibitions at the time the Treaty of
Peace was signed, or that the duty to prosecute perpetrators of international
crimes is an erga omnes (“in relation to everyone) obligation or has attained
the status of jus cogens. Erga omnes in international law has been used as a
legal term describing obligations owed by States towards the community of
states as a whole.