PIL Digests

Public International Law Case Digests Compilation (based on Atty.
DBL’s outline) 1
A. Introduction Ruling:
No. During this time, the US was already familiar with the doctrine
which exempts coast fishermen with their vessels and cargoes
1. Reparation for Injuries Case (ICJ Advisory
from the capture as prize of war since the War of Independence. It
Opinion 1949) has also entered into treaties which acknowledges this doctrine.
And though this doctrine may have started out as a “rule of comity”
Facts: only, the period of a hundred years is sufficient to enable what
The UN Mediator in Palestine Count Bernadotte, a Swedish originally was merely based in custom or comity to grow, by the
national, was assassinated in Jerusalem. The assassins were general assent of civilized nations, into a settled rule of
allegedly a gang of terrorists. Israel was not a member of the UN international law.
at the time of the incident.
“This rule of international law is one which prize courts are bound
Issue/s: to take judicial notice of, and to give effect to, in the absence of any
1) If an agent of the UN will suffer injury during the performance of treaty or other public act of their own government in relation to the
his duties in circumstances involving the responsibility of a State, matter.” Having acknowledged that fishing vessels are exempted
does the UN have international legal personality to bring a claim from being prizes of war in accordance to international law, and
against the responsible State to obtain the reparation due in since there was neither a treaty nor an act of the US Congress or
respect of the damage caused to itself and to the victim or the order of the US President which expressly authorize capture of
persons entitled through him? fishing vessels as prizes of war, the capture of the two Spanish
2) If the preceding question is answered in the affirmative, how is vessels in this case was unlawful for being contrary to settled
the action by the UN to be reconciled with the rights of the State of international law.
which the victim is a national?
2. Nicaragua vs. USA, ICJ Report (1986)
ICJ’s opinion:
1) Yes, the UN has international legal personality to bring the claim
for reparation both for the damage caused to itself and to the victim Principle:
or the persons entitled through him. For a new customary rule to be formed, not only must the acts
concerned “amount to a settled practice”, but they must be
The UN is “at the present the supreme type of international accompanied by the opinio juris sive necessitates (recognized by
organization, and it could not carry out the intentions of its founders law).
if it was devoid of international personality. It must be
acknowledged that its members, by entrusting certain functions to Even if the customary norm and the treaty norm were to have
it, with the attendant duties and responsibilities, have clothed it with exactly the same content, this would not be a reason for the Court
the competence required to enable those functions to be effectively to hold that the incorporation of the customary norm into treaty-law
discharged.” must deprive the customary norm of its applicability as distinct from
that of the treaty norm,
Moreover, while the traditional rule is that diplomatic protection is
exercised by the national State, this rule does not apply in this Facts:
case. The UN, in this case, is bringing the claim for reparation on It was in July 1979 when the fall of President Anastasio Somoza
the ground of breach of obligation of the responsible State to help Debayle’s government took place. Following the departure of
an agent of the organization in the performance of his duties. It is President Somoza, the Frente Sandinista de Liberacion Nacional,
exercising its functional protection of its agents. an armed opposition, installed a Junta of National Reconstruction
and an 18-member government.
As to the fact that Israel is not a member of the UN, the ICJ is of
the opinion that since the UN is composed of fifty States which United States first adopted favorably to the change by adopting a
consist the majority of the members of the international community, programme of economic aid. But later on, US suspended its aid
these States “have the power to bring into being an entity and eventually terminated it. The reason for this change was
possessing objective international personality, and not merely reports for of involvement of the Government of Nicaragua in
personality recognized by them alone, together with the capacity logistical support, including provision of arms, for guerrillas in El
to bring international claims.” Salvador.
2) There is no conflict between the right of the UN to bring the Nicaragua alleged that US decided to plan and undertake activities
action for reparation and the right of the victims’ State. The claim directed against Nicaragua. It was made clear that the US had
of the UN is not based on the nationality of the victim but upon his been giving support to the contras (those fighting against the
status as agent of the organization. Nicaraguan Government). In 1983 budgetary legislation enacted
by the US Congress made specific provision for funds to be used
by the US intelligence agencies for supporting “directly or
B. Sources of International Law indirectly, military or paramilitary operations in Nicaragua”.
1. The Paquete Habana Case, 175 U.S. 677 According to Nicaragua, these contras were responsible for
considerable material damage and wide-spread loss of life, and
Facts: also the act of killing of prisoners and civilians, torture, rape and
Two fishing vessels owned by a Spanish subject were captured by kidnapping. Further, they allege that US is in control of the contras.
the US blockading squadron with its cargo of live fish as prizes of
war. Neither had ammunition on board or were aware of the war Nicaragua claims that US has acted in violation of ARTICLE 2, par.
between US and Spain. 4, of the UN Charter, and of a customary international Law
obligation to refrain from the threat or use of force. The actions of
Issue: US are also claimed by Nicaragua to be such as to defeat the
Was the capture lawful? object and purpose of a treaty of friendship, commerce and
402 Case Digest Team (A.Y. 2017-2018)

TO GOD BE THE GLORY
Public International Law Case Digests Compilation (based on Atty. DBL’s outline) 2
Navigation concluded between the parties in 1956, and to be in latter “supervenes” the former, so that the customary law
breach of provisions of that treaty. has not further existence of its own.”
The United States did not appear before the ICJ at the merit (b) Situations where customary and treaty law rights and
stages, after refusing to accept the ICJ’s jurisdiction to decide the obligations differed in respect of the same subject matter.
case. US contends that the only general and customary • The Court concluded that (1) this proves that customary
international law on which Nicaragua can base its claims is that of international law continues to exist alongside treaty law
the charter. US further presented arguments that the multilateral and that (2) areas governed by the two sources of law do
treaty reservation debars the Court from considering the not (always) overlap and the rules do not (always) have
Nicaraguan claims based in customary international law. the same content.
Issues: (3) The Court held that opinio juris and State practice remain
• Was the Court competent to give its determination based necessary elements to determine the existence of customary
on customary international law when there was a international law
multilateral treaty reservation? • For a new customary rule to be formed, not only must the
• What is the relationship between treaty and customary acts concerned “amount to a settled practice”, but they
international law? must be accompanied by the opinio juris sive
• What are the elements necessary to form customary necessitates.
international law? • It is not to be expected that in the practice of States the
• What is the customary international law status of the application of the rules in question should have been
principle of non-intervention? perfect, in the sense that States should have refrained,
with complete consistency, from the use of force or
Ruling: intervention in each other’s internal affairs.
(1) The Court held that multilateral treaty reservations • The Court deems it sufficient that the conduct of States
cannot preclude the Court from relying on customary should, in general, be consistent with such rules, and that
international law, because customary law exists instances of State conduct inconsistent with a given rule
independently of treaty law. should generally have been treated as breaches of that
• The fact that the principles(non-use of force, non- rule, not as indications of the recognition of a new rule.
intervention, respect for the independence and territorial
integrity of States) have been codified or embodied in (4) The principle of non-intervention is customary international
multilateral conventions does not mean that they cease to law.
exist and to apply as principles of customary law, even as • The Court also noted that the United States has not
regards countries that are parties to such conventions. sought to justify its intervention in Nicaragua on legal
The principles continue to be binding as part of customary grounds, but had only justified it at a political level. The
international law, despite the operation of provisions of United States had not asserted for itself legal right of
conventional law in which they have been incorporated. intervention in these circumstances. The Court, without
• It held that multilateral treaty reservations further analysis into State practice, almost immediately
cannot preclude the Court from relying on customary proceeded to find that “…no such general right of
international law because, even if treaty provisions and intervention, in support of an opposition within another
customary law deal with the same subject matter, State, exists in contemporary international law. The Court
customary law exists independently of treaty law. concludes that acts constituting a breach of the
customary principle of non-intervention will also, if they
(2) Relationship between treaty and customary international directly or indirectly involve the use of force, constitute a
law breach of the principle of non-use of force in international
relations (para 209).”
(a) Situations where the customary law principles were identical to • The Court held that the prohibition on the use of force
treaty provisions. contained in Article 2(4) of the UN Charter has attained
• In situations where customary law principles were the status of a jus cogens norm.
identical to treaty provisions, the Court held that even if
principles of customary international law were 3. North Sea Continental Shelf Cases (Germany
subsequently codified into treaties, they continue to exist vs. Denmark & Germany vs. Netherlands, ICJ
side by side. For parties to treaties, both customary and Report, 1969)
treaty law apply. If, for some reason, the treaty ceases to
apply between treaty parties, the identical customary law Doctrine:
provision continues to apply between them Not only must the acts concerned amount to a settled practice, but
• It will therefore be clear that customary international law they must also be such, or be carried out in such a way, as to be
continues to exist and to apply, separately from evidence of a belief that this practice is rendered obligatory by the
international treaty law, even where the two categories of existence of a rule of law requiring it. The need for such a belief,
law have an identical content. i.e, the existence of a subjective element, is implicit in the very
• Even if the customary norm and the treaty norm were to notion of the opinio juris sive necessitatis. The States concerned
have exactly the same content, this would not be a must therefore feel that they are conforming to what amounts to a
reason for the Court to hold that the incorporation of the legal obligation. The frequency, or even habitual character of the
customary norm into treaty-law must deprive the acts is not in itself enough. There are many international acts, e.g.,
customary norm of its applicability as distinct from that of in the field of ceremonial and protocol, which are performed almost
the treaty norm. More generally, there are no grounds for invariably, but which are motivated only by considerations of
holding that when customary international law is courtesy, convenience or tradition, and not by any sense of legal
comprised of rules identical to those of treaty law, the duty.

TO GOD BE THE GLORY
Facts: Ruling:
The dispute is about the delimitation of the continental shelf NO. The Court concluded that the equidistance principle was not
between the Federal Republic of Germany and Denmark on the binding on the Federal Republic of Germany by way of treaty or
one hand, and the Federal Republic of Germany and Netherlands customary international law. In the case of the latter, the principle
on the other. had not attained a customary international law status at the time of
the entry into force of the Geneva Convention or thereafter. As
Two Special Agreements were submitted to ask the Court to such, the Court held that the use of the equidistance method is not
declare the principles and rules of international law applicable to obligatory for the delimitation of the areas concerned in the present
the delimitation as between the Parties of the areas of the North proceedings.
Sea continental shelf appertaining to each of them beyond the
partial boundaries in the immediate vicinity of the coast already 1. Is the 1958 Geneva Convention binding on the Federal
determined between the Federal Republic and the Netherlands by Republic of Germany?
an agreement of December 1, 1964 and between the Federal a. The first question to be considered was whether the
Republic and Denmark by an agreement of June 9, 1965. The 1958 Geneva Convention on the Continental Shelf
Court was not asked to actually delimit the further boundaries was binding for all the Parties in the case. Under the
involved, the Parties undertaking in their respective Special formal provisions of the Convention, it was in force
Agreements to effect such delimitation by agreement in pursuance for any individual State that had signed it within the
of the Court’s decision. time-limit provided, only if that State had also
subsequently ratified it. Denmark and the
Under the agreement of 1964 and 1965, Netherlands and Denmark Netherlands had both signed and ratified the
had drawn mainly by application of the principle of equidistance Convention and were parties to it, but the Federal
partial boundaries. The further negotiations between the Parties for Republic, although one of the signatories, had never
the prolongation of the partial boundaries broke down mainly ratified it, and was consequently not a party.
because Denmark and the Netherlands respectively wished this Nevertheless, it still was contended that the regime
prolongation also to be effected on the basis of the equidistance of Article 6 of the Convention had become binding on
principle whereas the Federal Republic considered that such an the Federal Republic because by conduct, by public
outcome would be inequitable because it would unduly curtail what statements and proclamations, and in other ways,
the Republic believed should be its proper share of the continental the Republic had assumed the obligations of the
shelf area, on the basis of proportionality to the length of its North Convention. In rejecting such argument, the Court
Sea coastline. The Federal Republic stated that due to its concave said that only a very definite, very consistent course
coastline, such a line would result in her losing out on her share of of conduct on the part of a State could justify
the continental shelf based on proportionality to the length of its upholding such contention. In principle, when a
North Sea coastline. number of States, including the one whose
conduct is invoked, and those invoking it, have
Denmark and the Netherlands Contention: drawn up a convention specifically providing for
a particular method by which the intention to
The whole matter was governed by a mandatory rule of law which, become bound by the régime of the convention
reflecting the language of Article 6 of the Geneva Convention on is to be manifested—namely by the carrying out
the Continental Shelf, was designated by them as the of certain prescribed formalities (ratification,
“equidistance-special circumstances” rule. That rule was to the accession), it is not lightly to be presumed that a
effect that in the absence of agreement by the parties to employ State which has not carried out these formalities,
another method, all continental shelf boundaries had to be drawn though at all times fully able and entitled to do
by means of an equidistance line, unless “special circumstances” so, has nevertheless somehow become bound in
were recognized to exist. According to Denmark and the another way.
Netherlands, the configuration of the German North Sea coast did b. The Court also took notice of the fact that even if the
not of itself constitute, for either of the two boundary lines Federal Republic ratified the treaty, she had the
concerned, a special circumstance. option of entering into a reservation on Article 6, by
reason of the faculty to do so conferred by Article 12
Federal Republic of Germany Contention: of the Convention. (In other words, even if one were
to assume that FR of Germany had intended to
The correct rule was one according to which each of the States become a party to the Convention, it does not
concerned should have a “just and equitable share” of the available presuppose that it would have also undertaken those
continental shelf, in proportion to the length of its sea-frontage. It obligations contained in Article 6)
had also contended that in a sea shaped as the North Sea each of c. In addition, the Court said that only the existence of
the States concerned was entitled to a continental shelf area a situation of estoppel could lend substance to the
extending up to the central point of that sea, or at least extending contention of Denmark and the Netherlands that the
to its median line. Alternatively, the Federal Republic had claimed Federal Republic were now precluded from denying
that if the equidistance method were held to be applicable, the the applicability of the conventional regime, by
configuration of the German North Sea coast constituted a special reason of past conduct, declarations, etc., which not
circumstance such as to justify a departure from that method of only clearly and consistently evinced acceptance of
delimitation in this particular case. that regime, but also had caused Denmark or the
Netherlands, in reliance on such conduct,
Issue (MAIN): detrimentally to change position or suffer prejudice.
1. Is the Federal Republic of Germany under a legal obligation to Of this there was no evidence.
accept the application of the equidistance principle, contained
in Article 6 of the Geneva Convention on the Continental shelf, 2. Is Federal Republic of Germany bound by the provisions
either as a customary international law rule or on the basis of of Article 6 of the Geneva Convention in so far as they
the Geneva Convention? reflect customary international law?

TO GOD BE THE GLORY
a. To decide if the equidistance principle bound FR of Convention came into force. The
Germany by way of customary international law, the Court concluded that even if there
Court examined (1) the status of the principle were some State practice in favour
contained in Article 6 as it stood when the of the equidistance principle, the
Convention was being drawn up; and (2) its Court could not deduct the
status after the Convention came into force. necessary opinio juris from this
i. The Court held that the principle of State practice. Not only must the
equidistance, as contained in Article 6 did acts concerned amount to a
not form a part of existing or emerging settled practice, but they must
customary international law at the time of also be such, or be carried out
drafting the Convention. The Court in such a way, as to be evidence
supported this finding based on (1) the of a belief that this practice is
hesitation expressed by the drafters of the rendered obligatory by the
Convention, the International Law existence of a rule of law
Commission, on the inclusion of Article 6 requiring it. The need for such a
into the Convention and (2) the fact belief, i.e, the existence of a
that reservations to Article 6 was subjective element, is implicit in
permissible under the Convention. the very notion of the opinio
ii. The Court held that Article 6 of the juris sive necessitatis. The
Convention had not attained a customary States concerned must
law status. For a customary rule to therefore feel that they are
emerge the Court held that it needed: (1) conforming to what amounts to
very widespread and representative a legal obligation. The
participation in the Convention, frequency, or even habitual
including States whose interests were character of the acts is not in
specially affected (in this case, they itself enough. There are many
were coastal States) (i.e. generality); international acts, e.g., in the
and (2) virtually uniform practice (i.e. field of ceremonial and
consistent and uniform usage) protocol, which are performed
undertaken in a manner that almost invariably, but which are
demonstrates (3) a general recognition motivated only by
of the rule of law or legal obligation (i.e. considerations of courtesy,
opinio juries). In these 2 cases, the Court convenience or tradition, and
held that the passage of a considerable not by any sense of legal duty.
period of time was unnecessary (i.e.
duration) for the formation of a
customary law. 4. Continental Shelf Case (Libya vs. Malta, ICJ
1. Very widespread and Report, 1985)
representative participation in the
Convention – not met. The
Doctrine: Customary Law as Source of International Law
number of ratifications and
accessions to the Convention (39
Facts:
States) were not adequately
On May 23, 1976, a Special Agreement was signed between the
representative or widespread.
Socialist People’s Libyan Arab Jamahiriya and the Republic of
2. Duration - Although the passage of
Malta providing for the submission to the Court of a dispute
only a short period of time (in this
concerning the delimitation of the continental shelf between the two
case, 3 – 5 years) is not
States. The Parties were broadly in agreement as to the sources
necessarily, or of itself, a bar to the
of the law applicable to the case, but disagreed as to the way in
formation of a new rule of
which the Court was to indicate the practical application of those
customary international law on the
principles and rules. Malta wished the Court to draw the
basis of what was originally a
delimitation line, while Libya wanted it only to pronounce itself on
purely conventional rule, an
the applicable principles and rules. Having examined the intention
indispensable requirement would
of the Parties to the Special Agreement, from which its jurisdiction
be that within the period in
derived, the Court considered that it was not barred by the terms
question, short though it might be,
of the Special Agreement from indicating a delimitation line.
State practice, including that of
States whose interests are
Submission of the Parties:
specially affected, should have
been both extensive and virtually
Malta:
uniform in the sense of the
• Malta takes the view that the applicable principles and rules are
provision invoked and should
to be implemented in practice by the drawing of a specific line
moreover have occurred in such a
(in this case, a median line)
way as to show a general
• Continental shelf rights are no longer defined in the light of
recognition that a rule of law or
physical criteria; they are controlled by the concept of distance
legal obligation is involved.
from the coast.
3. Opinio Juris – The Court examined
15 cases where States had
Libya:
delimited their boundaries using
the equidistance method, after the
TO GOD BE THE GLORY
• The natural prolongation of the land territory of a State into the unilaterally qualify the offence for the purpose of asylum under
sea remains the fundamental basis of legal title to continental treaty law and international law?
shelf areas.
(2) In this specific case, was Peru, as the territorial State, bound to
Issue: give a guarantee of safe passage?
What principles and rules of international law are applicable to the
delimitation of the area of the continental shelf which appertains to (3) Did Colombia violate Article 1 and 2 (2) of the Convention on
the Republic of Malta and the area of the continental shelf which Asylum of 1928 (hereinafter called the Havana Convention) when
appertains to the Libyan Arab Republic? it granted asylum and is the continued maintenance of asylum a
violation of the treaty?
Ruling: Court:
The delimitation is to be effected in accordance with equitable On issue no. 1:
principles and taking account of all relevant circumstances, so as In the normal course of granting diplomatic asylum a diplomatic
to arrive at an equitable result. The court ruled that the principles representative has the competence to make a provisional
and rules underlying the regime of the exclusive economic zone qualification of the offence (for example, as a political offence) and
cannot be left out of consideration in this case which relates to the the territorial State has the right to give consent to this qualification.
delimitation of the continental shelf. The two institutions are linked Colombia has asserted, as the State granting asylum, that it is
together in modern law, and one of the relevant circumstances to competent to qualify the nature of the offence in a unilateral and
be taken into account for the delimitation of the continental shelf of definitive manner that is binding on Peru. The court had to decide
a State is the legally permissible extent of the exclusive economic if such a decision was binding on Peru either because of treaty law
zone appertaining to that same State. (in particular the Havana Convention of 1928 and the Montevideo
Convention of 1933), other principles of international law or by way
The institution of the exclusive economic zone, with its rule on of regional or local custom.
entitlement by reason of distance, is shown by the practice of
States to have become a part of customary law; and although the There was no expressed or implied right of unilateral and definitive
institutions of the continental shelf and the exclusive economic qualification of the State that grants asylum under the Havana
zone are different and distinct, the rights which the exclusive Convention or relevant principles of international law. The
economic zone entails over the sea-bed of the zone are defined by Montevideo Convention of 1933, which accepts the right of
reference to the regime laid down for the continental shelf. The unilateral qualification, and on which Colombia relied to justify its
Court was thus unable to accpet the Libyan contention that unilateral qualification, was not ratified by Peru. The Convention,
distance from the coast was not a relevant element for the decision per say, was not binding on Peru and considering the low numbers
of the present case. of ratifications the provisions of the latter Convention cannot be
said to reflect customary international law.
[Summary of Ruling (from Notes):
Colombia also argued that regional or local customs support the
The rules governing exclusive economic zone are applicable qualification. The court held that the burden of proof on the
principles and rules of international law for the delimitation of the existence of an alleged customary law rests with the party making
continental shelf. Certain rules under the 1982 Convention on the the allegation:
Law of the Sea, such as those pertaining to the EEZ, form part of
the customary international law. The ICJ denied Libya’s contention “The Party which relies on a custom of this kind must prove that
that the EEZ should be based on the natural prolongation of the this custom is established in such a manner that it has become
land territory (which is not supported by the provisions of the binding on the other Party... (that) it is in accordance with a (1)
UNCLOS III) because there is no conclusive evidence of state constant and uniform usage (2) practiced by the States in question,
practice and opinion juris about this rule. The ICJ applied instead and that this usage is (3) the expression of a right appertaining to
“equitable delimitation” which can be gleaned from Art. 83 of the the State granting asylum (Columbia) and (4) a duty incumbent on
UNCLOS III. ] the territorial State (in this case, Peru). This follows from Article 38
of the Statute of the Court, which refers to international custom “as
5. Asylum Case (Columbia vs. Peru, ICJ Report, evidence of a general practice accepted as law.”
1950)
Columbia did not establish the existence of a regional custom
Facts: because it failed to prove consistent and uniform usage of the
Peru issued an arrest warrant against Victor Raul Haya de la Torre alleged custom by relevant States. The fluctuations and
“in respect of the crime of military rebellion” which took place on contradictions in State practice did not allow for the uniform. The
October 3, 1949, in Peru. 3 months after the rebellion, Torre fled to court also reiterated that the fact that a particular State practice
the Colombian Embassy in Lima, Peru. The Colombian was followed because of political expediency and not because of
Ambassador confirmed that Torre was granted diplomatic asylum a belief that the said practice is binding on the State by way of a
in accordance with Article 2(2) of the Havana Convention on legal obligation (opinio juris) is detrimental to the formation of a
Asylum of 1928 and requested safe passage for Torre to leave customary law.
Peru. Subsequently, the Ambassador also stated Colombia had
qualified Torre as a political refugee in accordance with Article 2 Even if Colombia could prove that such a regional custom existed,
Montevideo Convention on Political Asylum of 1933 (note the term it would not be binding on Peru, because Peru “far from having by
refugee is not the same as the Refugee Convention of 1951). Peru its attitude adhered to it, has, on the contrary, repudiated it by
refused to accept the unilateral qualification and refused to grant refraining from ratifying the Montevideo Conventions of 1933 and
safe passage. 1939, which were the first to include a rule concerning the
qualification of the offence [as “political” in nature] in matters of
Issues: diplomatic asylum.” (See in this regard, the lesson on persistent
(1) Is Colombia competent, as the country that grants asylum, to objectors. Similarly in the North Sea Continental Shelf Cases the
court held ‘in any event the . . . rule would appear to be inapplicable
TO GOD BE THE GLORY
as against Norway in as much as she had always opposed any

attempt to apply it to the Norwegian coast’.) EXC: An exception to this rule (asylum should not be granted to
Columbia, as the State granting asylum, is not competent to qualify those facing regular prosecutions) can occur only if, in the guise of
the offence by a unilateral and definitive decision, binding on Peru. justice, arbitrary action is substituted for the rule of law. Such would
be the case if the administration of justice were corrupted by
On issue no. 2: measures clearly prompted by political aims. Asylum protects the
There was no legal obligation on Peru to grant safe passage either political offender against any measures of a manifestly extra-legal
because of the Havana Convention or customary law. In the case character which a Government might take or attempt to take
of the Havana Convention, a plain reading of Article 2 results in an against its political opponents... On the other hand, the safety
obligation on the territorial state (Peru) to grant safe passage only which arises out of asylum cannot be construed as a protection
after it requests the asylum granting State (Columbia) to send the against the regular application of the laws and against the
person granted asylum outside its national territory (Peru). In this jurisdiction of legally constituted tribunals. Protection thus
case the Peruvian government had not asked that Torre leave understood would authorize the diplomatic agent to obstruct the
Peru. On the contrary, it contested the legality of asylum granted application of the laws of the country whereas it is his duty to
to him and refused to grant safe conduct. respect them... Such a conception, moreover, would come into
conflict with one of the most firmly established traditions of Latin-
The court looked at the possibility of a customary law emerging America, namely, non-intervention [for example, by Colombia into
from State practice where diplomatic agents have requested and the internal affairs of another State like Peru]....
been granted safe passage for asylum seekers, before the
territorial State could request for his departure. These practices Asylum may be granted on “humanitarian grounds to protect
were a result of a need for expediency and other practice political prisoners against the violent and disorderly action of
considerations over an existence of a belief that the act amounts irresponsible sections of the population.” (for example during a
to a legal obligation. mob attack where the territorial State is unable to protect the
“...but this practice does not and cannot mean that the State, to offender). Torre was not in such a situation at the time when he
whom such a request for safe- conduct has been addressed, is sought refuge in the Colombian Embassy at Lima.
legally bound to accede to it.”
The grant of asylum and reasons for its prolongation were not in
On issue no. 3: conformity with Article 2(2) of the Havana Convention.
Article 1 of the Havana Convention states that “It is not permissible
for States to grant asylum... to persons accused or condemned for 6. Anglo Norwegian Fisheries Case (UK vs.
common crimes... (such persons) shall be surrendered upon Norway, ICJ Report, 1951)
request of the local government.” IOW, the person-seeking asylum
must not be accused of a common crime (for example, murder
Extension by costal state of fisheries jurisdiction case, fishery
would constitute a common crime, while a political offence would
zone, preferential rights and concurrent rights of other stats and
not).The accusations that are relevant are those made before the
conservation measures.
granting of asylum. Torre’s accusation related to a military
rebellion, which the court concluded was not a common crime and
FACTS:
as such the granting of asylum complied with Article 1 of the
Since 1911 British trawlers had been seized and condemned for
Convention.
violating measures taken by the Parties in order to avoid further
legal differences; and the Norwegian Government specifying the
Article 2 (2) of the Havana Convention states that “Asylum granted
limits within which fishing was prohibited to foreigners. In 1935, a
to political offenders in legations, warships, military camps or
Decree was adopted establishing the lines of delimitation of the
military aircraft, shall be respected to the extent in which allowed,
Norwegian fisheries zone.
as a right or through humanitarian toleration, by the usages, the
conventions or the laws of the country in which granted and in
The United Kingdom requested the court to decide if Norway had
accordance with the following provisions: First: Asylum may not be
used a legally acceptable method in drawing the baseline from
granted except in urgent cases and for the period of time strictly
which it measured its territorial sea. The United Kingdom argued
indispensable for the person who has sought asylum to ensure in
that customary international law did not allow the length of a
some other way his safety.”
baseline drawn across a bay to be longer than ten miles. Norway
argued that its delimitation method was consistent with general
An essential pre-requisite for the granting of asylum is the urgency
principles of international law.
or, in other words, the presence of “an imminent or persistence of
a danger for the person of the refugee”. The court held that the
FINDINGS OF THE COURT:
facts of the case, including the 3 months that passed between the
rebellion and the time when asylum was sought, did not establish
1. The formation of customary law
the urgency criteria in this case. IOW, Torre was accused of a
The Court referred to (1) positive State practice and (2) lack of
crime but he could not be tried in a court because Colombia
contrary State practice as a confirmation of an existing rule of
granted him asylum. The court held that “protection from the
customary international law (see p. 17 and 18). There was no
operation of regular legal proceedings” was not justified under
mention of opinio juris in this early judgment.
diplomatic asylum.
In the following passage, the Court considered expressed dissent
GR: In the case of diplomatic asylum the refugee is within the
by States regarding a particular practice to be detrimental to the
territory of the State. A decision to grant diplomatic asylum involves
existence of an alleged general rule. Yet, the Court did not examine
a derogation from the sovereignty of that State. It withdraws the
further whether these States adopted a contrary practice because,
offender from the jurisdiction of the territorial State and constitutes
for example, (1) they were claiming an exception to the rule (see
an intervention in matters which are exclusively within the
the Nicaragua jurisprudence) or (2) because they believed that the
competence of that State. Such a derogation from territorial
said rule did not possess the character of customary law.
sovereignty cannot be recognised unless its legal basis is
established in each particular case.
TO GOD BE THE GLORY
“In these circumstances the Court deems it necessary to point out deviation from the general practice – was in conformity with
that although the ten-mile rule has been adopted by certain States international law (see page 21).
both in their national law and in their treaties and conventions, and
although certain arbitral decisions have applied it as between these “In its (Norway’s) view, these rules of international law take into
States, other States have adopted a different limit. Consequently, account the diversity of facts and, therefore, concede that the
the ten-mile rule has not acquired the authority of a general rule of drawing of base-lines must be adapted to the special conditions
international law.” obtaining in different regions. In its view, the system of delimitation
applied in 1935, a system characterized by the use of straight lines,
1.1. The persistent objector does not therefore infringe the general law; it is an adaptation
The Court in its judgment held that even if a customary law rule rendered necessary by local conditions. ”
existed on the aforementioned ten-mile rule,
The Court held that the fact that this consistent and sufficiently long
“…the ten-mile rule would appear to be inapplicable as against practice took place without any objection to the practice from other
Norway inasmuch as she has always opposed any attempt to apply States (until the time of dispute) indicated that these States did not
it to the Norwegian coast.” consider the Norwegian system to be “contrary to international
law”.
In this case, the Court appears to support the idea that an existing
customary law rule would not apply to a State if (1) it objected to “The notoriety of the facts, the general toleration of the international
the application of the rule to itself (2) at the initial stages and (3) in community, Great Britain’s position in the North Sea, her own
a consistent manner. The Anglo Norwegian Fisheries Case, thus, interest in the question, and her prolonged abstention would in any
supports the Asylum Case (Peru vs Colombia) in articulating what case warrant Norway’s enforcement of her system against the
we now call the persistent objector rule. United Kingdom. The Court is thus led to conclude that the method
of straight lines, established in the Norwegian system, was
a. Initial objection imposed by the peculiar geography of the Norwegian coast; that
The Court pointed out that the Norwegian Minister of Foreign even before the dispute arose, this method had been consolidated
Affairs, in 1870, stated that, “in spite of the adoption in some by a consistent and sufficiently long practice, in the face of which
treaties of the quite arbitrary distance of 10 sea miles, this distance the attitude of governments bears witness to the fact that they did
would not appear to me to have acquired the force of international not consider it to be contrary to international law.”
law. Still less would it appear to have any foundation in reality…”
2. Relationship between international and national law
The Court held that “Language of this kind can only be construed The Court alluded to the relationship between national and
as the considered expression of a legal conception regarded by international law in delimitation of maritime boundaries. In
the Norwegian Government as compatible with international delimitation cases, States “must be allowed the latitude necessary
law”. Thus, the Court held that Norway had refused to accept the in order to be able to adapt its delimitation to practical needs and
rule as regards to it in 1870. local requirements…” The Court would also consider “…certain
economic interests peculiar to a region, the reality and importance
b. Sustained objection of which are clearly evidenced by a long usage.”However, while
The Court also went on to hold that Norway had followed the the act of delimitation can be undertaken by the State, its legal
principles of delimitation that it considered a part of its system in a validity depends on international law.
consistent and uninterrupted manner from 1869 until the time of
the dispute. “The delimitation of sea areas has always an international aspect;
it cannot be dependent merely upon the will of the coastal State as
In establishing consistent practice, the Court held that “…too much expressed in its municipal law. Although it is true that the act of
importance need not be attached to the few uncertainties or delimitation is necessarily a unilateral act, because only the coastal
contradictions, real or apparent, which the United Kingdom State is competent to undertake it, the validity of the delimitation
Government claims to have discovered in Norwegian practice.” with regard to other States depends upon international law. (p. 20)”
c. No objection by other States 7. Fisheries Jurisdiction Case (UK vs. Iceland, ICJ
The Court held that the 10-mile rule did not form a part of the Report, 1973)
general law and, in any event, could not bind Norway because of
the latter’s objections. Next, the Court inquired whether the
FACTS:
Norwegian system of delimitation was nevertheless contrary to
The present case concerns a dispute between the Government of
international law. To do so, the Court relied on state practice once
the United Kingdom and the Government of Iceland occasioned b
more.
y the claim of the latter to extend its exclusive fishing rights to 50 n
autical miles from the baseline, over its 12 mile allowance. The la
“The general toleration of foreign States with regard to the
w Iceland passed to enact such a regulation dealt with Scientific C
Norwegian practice is an unchallenged fact. For a period of more
onservation of the continental shelf. However, Iceland and the Uni
than sixty years the United Kingdom Government itself in no way
ted Kingdom reached an agreement in 1961 stating that the Unite
contested it… The Court notes that in respect of a situation which
d Kingdom would recognize the 12 mile fishery zone. Iceland term
could only be strengthened with the passage of time, the United
inated this agreement in 1971 in which it set up its new fishery zo
Kingdom Government refrained from formulating reservations.”
ne. United Kingdom has been fishing in this region for many years
and brought this issue to the ICJ when Iceland set up its new para
1.2. Contrary State practice of Norway?
meters.
In this case, Norway adopted a contrary practice – a practice that
was the subject of litigation.
The Government of United Kingdom contends that the Exchange
However, interestingly, Norway was clear that it was not claiming
of Notes of 11 March, 1961, constitutes a treaty or convention in f
an exception to the rule (i.e. that its practice was not contrary to
orce, and a submission by both parties to the jurisdiction of the Co
international law). It emphasized that its practice – even if it was a
urt in case of a dispute in relation to a claim by Iceland to extend i

TO GOD BE THE GLORY
ts fisheries jurisdiction beyond the limits agreed in that Exchange 1. Does the court have jurisdiction to give a reply to the request of
of Notes. the General Assembly for an advisory opinion?
2. Is the question posted a legal question or a political one?
On the other hand, Government of Iceland, considering that the vi 3. Can the court address the question when there is no specific
tal interests of the people of Iceland are involved, respectfully info dispute on the subject matter of the question?
rms the Court that it is not willing to confer jurisdiction on the Cour 4. What are the applicable laws, and are there prohibitions in the
t in any case involving the extent of the fishery limits of Iceland. UN Charter, CIL or IHL?
5. Is the principle of neutrality applicable to nuclear weapons?
ISSUE/S:
Whether or not the Court (ICJ) has competence to hear and prono Ruling:
unce upon this dispute. 1. Yes. The court has jurisdiction.
Article 96, paragraph 1 of the Charter provides that: "The General
RULING: Assembly or the Security Council may request the International
The Court, in accordance with its Statute and its settled jurisprude Court of Justice to give an advisory opinion on any legal question."
nce, must examine proprio motu the question of its own jurisdictio
n to consider the Application of the United Kingdom. It is the duty 2. Yes. It is a legal question.
of the Court to make examination on its own initiative as reinforce Questions "framed in terms of law and raising problems of
d by the terms of Article 53 of the Statute of the Court. Furthermor international law . . . are by their very nature susceptible of a reply
e, Article 62(2) of the Rules of Court requires inter alia that a State based on law . . . and appear . . . to be questions of a legal
objecting to the jurisdiction should "set out the facts and the law o character".
n which the objection is based", its submissions on the matter, an The fact that this question also has political aspects, as, in the
d any evidence which it may wish to adduce. nature of things, is the case with so many questions which arise in
international life, does not suffice to deprive it of its character as a
In Article 102 of the United Nations Charter it is stated that only ag "legal question" and to "deprive the Court of a competence
reements that are so registered can be handled by the Internation expressly conferred on it by its Statute".
al Court of Justice, should a dispute arise concerning their implem
entation. The Exchange of Notes was registered by the Governme 3. Yes. The advisory function of the court is separate from its
nt of Iceland with the Secretariat of the United Nations on 8 June 1 function in contentious procedures.
961. The purpose of the advisory function is not to settle - at least
directly - disputes between States, but to offer legal advice to the
The history of the negotiations not only shows the intentions of the organs and institutions requesting the opinion. The fact that the
parties but also explains the significance of the six months' notice question put to the Court does not relate to a specific dispute
required to be given by the Government of Iceland to the United K should consequently not lead the Court to decline to give the
ingdom Government. The idea of a six months' notice to be given opinion requested.
by Iceland was agreed to by the parties. It can be inferred that the
real intention of the parties was to give the United Kingdom Gover The court has the authority to deliver an opinion on the question
nment an effective assurance which constituted a sine qua non an posed by the General Assembly, and that there exist no
d not merely a severable condition of the whole agreement: name "compelling reasons" which would lead the Court to exercise its
ly, the right to challenge before the Court the validity of any further discretion not to do so.
extension of Icelandic fisheries jurisdiction in the waters above its
continental shelf beyond the 12-mile limit. 4.
Applicable Laws:
In consequence, the exercise of jurisdiction by the Court to entert (1) To address the question, it should be referred to the
ain the present Application would fa11 within the terms of the com Law applicable in armed conflict and not from the
promissory clause and correspond exactly to the intentions and ex provisions of International Covenant on Civil and Political
pectations of both Parties when they discussed and consented to Rights.
that clause. It thus appears from the text of the compromissory cla (2) The prohibition of genocide would be pertinent in this
use, read in the context of the 1961 Exchange of Notes and in the case if the recourse to nuclear weapons did indeed entail
light of the history of the negotiations, that the Court has jurisdictio the element of intent, towards a group as such, required
n. At the outset, the compromissory clause has a bilateral charact by Article II of the Convention on the Prevention and
er, each of the parties being entitled to invoke the Court's jurisdicti Punishment of the Crime of Genocide.
on (3) While the existing international law relating to the
protection and safeguarding of the environment does not
8. Legality of the Threat or Use of Nuclear specifically prohibit the use of nuclear weapons, it
Weapons Case (ICJ Advisory Opinion, 1996) indicates important environmental factors that are
properly to be taken into account in the context of the
implementation of the principles and rules of the law
Due to the unique characteristics of nuclear weapons, such that
applicable in armed conflict.
they have destructive capacity, capacity to cause untold human
(4) The most directly relevant applicable law governing
suffering, and ability to cause damage to generations to come. In
the question of which it was seized, is that relating to the
1995, the UN Secretary General wrote the Registrar of the decision
use of force enshrined in the United Nations Charter and
of the General Assembly to submit a question for an Advisory
the law applicable in armed conflict which regulates the
Opinion.
conduct of hostilities, together with any specific treaties
on nuclear weapons.
The question to be answered was: Is the threat or use of nuclear
weapons in any circumstance permitted under international
Prohibitions of the threat or use of nuclear weapons per se
law?
under:
A. Provisions of the Charter: NONE.
Issues:

TO GOD BE THE GLORY
The use of force against the territorial integrity or political

independence of another State or in any other manner ii. 2nd principle: It is prohibited to cause unnecessary
inconsistent with the purposes of the United Nations is suffering to combatants: it is accordingly prohibited to use
prohibited. weapons causing them such harm or uselessly
aggravating their suffering. In application of that second
However, the Charter recognizes the inherent right of principle, States do not have unlimited freedom of choice
individual or collective self-defense (subject to the of means in the weapons they use.
conditions of necessity and proportionality) if an armed
attack occurs. Security Council may take military It cannot be concluded from this that the established principles and
enforcement measures in conformity with Chapter VII of rules of humanitarian law applicable in armed conflict did not apply
the Charter. to nuclear weapons. Such a conclusion would be incompatible with
the intrinsically humanitarian character of the legal principles in
But all these provisions do not refer to specific weapons. question which permeates the entire law of armed conflict and
They apply to any use of force, regardless of the weapons applies to all forms of warfare and to all kinds of weapons, those of
employed. The Charter neither expressly prohibits, nor the past, those of the present and those of the future.
permits, the use of any specific weapon, including nuclear
weapons. 5. Yes. The principle of neutrality is applicable.
The principle of neutrality, whatever its content, which is of a
Whether a signalled intention to use force if certain events fundamental character similar to that of the humanitarian principles
occur is or is not a "threat" within Article 2, paragraph 4, and rules, is applicable (subject to the relevant provisions of the
of the Charter depends upon various factors. The notions United Nations Charter), to all international armed conflict,
of "threat" and "use" of force under Article 2, paragraph 4, whatever type of weapons might be used.
of the Charter stand together in the sense that if the use
of force itself in a given case is illegal - for whatever Summary of Rulings:
reason - the threat to use such force will likewise be • There is in neither customary nor conventional
illegal. In short, if it is to be lawful, the declared readiness international law or any specific authorization of the
of a State to use force must be a use of force that is in threat or use of nuclear weapons.
conformity with the Charter. For the rest, no State - • There is in neither customary nor conventional
whether or not it defended the policy of deterrence - international law or any comprehensive and universal
suggested to the Court that it would be lawful to threaten prohibition of the threat or use of nuclear weapons as
to use force if the use of force contemplated would be such.
illegal. • A threat or use of force by means of nuclear weapons
that is contrary to Article 2, paragraph 4, of the United
B. Customary rule: NONE. Nations Charter and that fails to meet all the
State practice shows that the illegality of the use of certain requirements of Article 51, is unlawful.
weapons as such does not result from an absence of • A threat or use of nuclear weapons should also be
authorization but, on the contrary, is formulated in terms compatible with the requirements of the international law
of prohibition. applicable in armed conflict particularly those of the
principles and rules of international humanitarian law, as
It does not seem to the Court that the use of nuclear well as with specific obligations under treaties and other
weapons can be regarded as specifically prohibited on undertakings which expressly deal with nuclear
the basis of certain provisions of the Second Hague weapons.
Declaration of 1899, the Regulations annexed to the • The threat or use of nuclear weapons would generally be
Hague Convention IV of 1907 or the 1925 Geneva contrary to the rules of international law applicable in
Protocol. armed conflict, and in particular the principles and rules
of humanitarian law;
Members of the international community are profoundly
divided on the matter of whether non-recourse to nuclear However, in view of the current state of international law,
weapons over the past fifty years constitutes the and of the elements of fact at its disposal, the Court
expression of an opinio juris. The emergence, as lex lata, cannot conclude definitively whether the threat or use of
of a customary rule specifically prohibiting the use of nuclear weapons would be lawful or unlawful in an
nuclear weapons as such is hampered by the continuing extreme circumstance of self-defense, in which the very
tensions between the nascent opinio juris on the one survival of a State would be at stake;
hand, and the still strong adherence to the doctrine of • There exists an obligation to pursue in good faith and
deterrence (in which the right to use those weapons in the bring to a conclusion negotiations leading to nuclear
exercise of the right to self-defence against an armed disarmament in all its aspects under strict and effective
attack threatening the vital security interests of the State international control.
is reserved) on the other.
C. International Humanitarian Law applicable in armed conflict

and of the law of neutrality: 9. Lotus Case (France vs. Turkey, PCIJ Series A
The cardinal principles contained in the texts constituting the fabric No. 1018, 1927)
of humanitarian law are the following:
i. 1st principle is aimed at protection of the civilian DOCTRINE:
population and civilian objects and establishes the Lotus Principle: Sovereign states may act in any way they wish so
distinction between combatants and non-combatants; long as they so not contravene an explicit prohibition.
States must never make civilians the object of attack and (This principle is now overruled by the 1958 High Seas Convention
must consequently never use weapons that are incapable – only the flag State or the State of which the alleged offender was
of distinguishing between civilian and military targets.
TO GOD BE THE GLORY
a national has jurisdiction over sailors regarding incidents

occurring in high seas.) The offence for which Lieutenant Demons appears to have
been prosecuted was an act – of negligence or imprudence –
FACTS: having its origin on board the Lotus, while its effects made
On August 2, 1926, a collision occurred between the French mail themselves felt on board the Boz-Kourt. These two elements
steamer Lotus, proceeding to Constantinople, and the Turkish are, legally, entirely inseparable, so much so that their separation
collier Boz-Kourt, between five and six nautical miles to the north renders the offence non-existent. Neither the exclusive
of Cape Sigri (Mitylene). The Boz-Kourt, which was cut in two, jurisdiction of either State, nor the limitations of the jurisdiction of
sank, and eight Turkish nationals who were on board perished. each to the occurrences which took place on the respective ships
After having done everything possible to succour the would appear calculated to satisfy the requirements of justice and
shipwrecked persons, of whom ten were able to be saved, the effectively to protect the interests of the two States. It is only
Lotus continued on its course to Constantinople, where it arrived natural that each should be able to exercise jurisdiction and to
on August 3rd. do so in respect of the incident as a whole. It is therefore a
case of concurrent jurisdiction.
At the time of the collision, the officer of the watch on board the
nd
Lotus was Monsieur Demons, a French citizen, lieutenant in the 10. South-West Africa Case, (2 Phase, ICJ Report,
merchant service and first officer of the ship, while the 1966);
movements of the Boz-Kourt were directed by its captain,
Hassan Bey, who was one of those saved from the wreck. A case between Liberia vs. South Africa; and Ethiopia vs. South
Africa); Winning party: South Africa
Lieutenant Demons was arrested without previous notice being
given to the French Consul-General. This arrest, which has been Principle according to tanya notes:
characterized by the Turkish Agent as arrest pending trial Actio Popularis (the action to obtain remedy by a person or a group
(arrestation preventive), was effected in order to ensure that the in the name of the general public without being, or directly
criminal prosecution instituted against the two officers, on a representing, the victim) is not recognized as a general principle of
charge of manslaughter, by the Public Prosecutor of Stamboul. law. In international law, it refers to the action taken by a State
The case was first heard by the Criminal Court of Stamboul in the name of the international community even if it is not
on August - 28th. On that occasion, Lieutenant Demons directly the victim.
submitted that the Turkish Courts had no jurisdiction; the Court,
however, overruled his objection. When the proceedings were Facts:
resumed on September 11th, Lieutenant Demons demanded his The case were instituted by applications of the Governments of
release on bail and was granted. Demon and Bey were both Ethiopia and Liberia filed in the Registry on 4 November 1960
sentenced to imprisonment and fine. There were representations which relates to the continued existence of the Mandate for South
made by the French Government. As a result of these West Africa and the duties and performance of South Africa as
representations, the Government of the Turkish Republic Mandatory thereunder. By an Order of 20 May 1961 the Court
declared on September 2nd, 1926, that "it would have no joined the proceedings in the two cases.
objection to the reference of the conflict of jurisdiction to the
Court at The Hague". The Government of South Africa raised preliminary objections to
the Court's proceeding to hear the merits of the case, but these
ISSUE: were dismissed by the Court on 21 December 1962, the Court
Whether or not Turkey has, according to the principles of finding that it had jurisdiction to adjudicate upon the merits of the
international law, jurisdiction to prosecute in this case? dispute.
RULING: In its Judgment on the second phase of the cases the Court, by the
Yes. Turkey has jurisdiction to try the case because there is no President's casting vote, the votes being equally divided (seven-
international law that prohibits a state from exercising criminal seven), found that the Applicant States could not be
jurisdiction over a foreign national who commits acts outside of the considered to have established any legal right or interest in
state’s national jurisdiction. Hence, both states here may exercise the subject matter of their claims and accordingly decided to
concurrent jurisdiction over this matter because there is no rule of reject them.
international law in regards to collision cases to the effect that
criminal proceedings are exclusively within the jurisdiction of the The Applicants, acting in the capacity of States which were
state whose flag is flown. members of the former League of Nations, put forward various
allegations of contraventions of the League of Nations Mandate for
The collision which occurred on August 2nd, 1926, between the South West Africa by the Republic of South Africa. The contentions
S. S. Lotus, flying the French flag, and the S. S. Boz-Kourt, flying of the Parties covered, inter alia, the following issues: whether the
the Turkish flag, took place on the high seas: the territorial Mandate for South West Africa was still in force and, if so, whether
jurisdiction of any State other than France and Turkey therefore the Mandatory's obligation to furnish annual reports on its
does not enter into account. administration to the Council of the League of Nations had become
transformed into an obligation so to report to the General Assembly
It is Article 15 of the Convention of Lausanne of July 24th, 1923, of the United Nations.
respecting conditions of residence and business and jurisdiction,
which refers the contracting Parties to the principles of Issues:
international law as regards the delimitation of their respective 1. One was whether the Mandate skill subsisted at all and the other
jurisdiction. was
2. The question of the Applicants' standing in this phase of the
This clause is as follows: "Subject to the provisions of Article proceedings - i.e. their legal right or interest regarding the subject
16, all questions of jurisdiction shall, as between Turkey and the matter of their claims. (I think this is the most important issue
other contracting Powers, be decided in accordance with the in the case as per Atty’s discussion basing on Tanya’s note)
principles of international law."
TO GOD BE THE GLORY
Ruling: The Netherlands were within their rights in altering the level
As the Court based its Judgment on a finding that the Applicants of the Meuse at Maestricht, without the consent of Belgium,
did not possess such a legal right or interest, it did not since the régime set up by the Treaty was not thereby
pronounce upon the question of whether the Mandate was still in prejudiced.
force.
The Juliana Canal cannot be considered as a canal
If the answer were that the Applicants could not be regarded as below Maestricht, within the meaning of the Treaty.
possessing the legal right or interest claimed, then even if the
various allegations of contraventions of the Mandate for South Facts: The Government of the Kingdom of the Netherlands
West Africa were established, the Applicants would still not be has instituted before the Court proceedings in regard to the
entitled to the pronouncements and declarations which, in their diversion of water from the river Meuse.
final submissions, they asked the Court to make.
Netherlands:
The applicants raised the argument of "necessity" which amounted
to a plea that the Court should allow the equivalent of an actio 1. The construction by Belgium of works which render
popularis, or right resident in any member of a community to take it possible for a canal situated below Maestricht to
legal action in vindication of a public interest. But such a right was be supplied with water taken from the Meuse
not known to international law as it stood at present: and the elsewhere than at that town is contrary to the Treaty
Court was unable to regard it as imported by "the general of May 12th, 1863. X – Due to absence of
principles of law" referred to in Article 38, paragraph 1 (c), of evidence to support claim of control
its Statute.
2. The feeding of the Belgian section of the Zuid-
In the final analysis, the whole "necessity" argument appeared to Willemsvaart, of the Campine Canal, of the
be based on considerations of an extra-legal character, the product Hasselt branch of that canal and of the branch
of a process of after-knowledge. It was events subsequent to the leading to Beverloo Camp, as also of the
period of the League, not anything inherent in the mandates Turnhout Canal, through the Neerhaeren Lock
system as it was originally conceived, that gave rise to the alleged with water taken from the Meuse elsewhere
"necessity", which, if it existed, lay in the political field and did not than at Maestricht, is contrary to the said
constitute necessity in the eyes of the law. The Court was not a Treaty. X – New canal only replaced the old
legislative body. Parties to a dispute could always ask the Court to
give a decision ex aequo et bono, in terms of paragraph 2 of Article 2. Belgium's project of feeding a section of the Hasselt
38. Failing that, the duty of the Court was plain: its duty was to Canal with water taken from the Meuse elsewhere
apply the law as it found it, not to make it. than at Maestricht is contrary to the said Treaty.
X – Nothing in treaty prevents either State to make
Rights could not be presumed to exist merely because it might use of canals w/in and don’t leave their territory
seem desirable that they should. The Court could not remedy a
deficiency if, in order to do so, it had to exceed the bounds of (D) Belgium's project of feeding the section of the
normal judicial action. The Court could not, however, presume canal joining the Zuid-Willemsvaart to the
what the wishes and intentions of those concerned would have Scheldt between Herenthals (Viersel) and
been in anticipation of events that were neither foreseen nor Antwerp with water taken from the Meuse
foreseeable; and even if it could, it would certainly not be possible elsewhere than at Maestricht is contrary to the
to make the assumptions contended for by the Applicants as to said Treaty. X – Same in No. 3
what those intentions were.
Belgium:
For the foregoing reasons, the Court decided to reject the
claims of the Empire of Ethiopia and the Republic of Liberia. (P) The mere possibility of works being used for
purposes inconsistent with the Treaty of May 12th,
nd 1863, governing the taking of water from the
11. Barcelona Traction Case (Belgium vs. Spain, 2
Phase, ICJ Report, 1970) Meuse, does not suffice to justify the condemnation
of such works and to secure their demolition, since
bad faith may not be presumed.
12. The River Meuse Case (Netherlands vs.
Belgium, PCIJ Reports, 1937) (Q) The feeding of the Zuid-Willemsvaart and the canal
joining the Meuse and the Scheldt and its branches
Interpretation of the Treaty of May 12th, 1863, between is not rendered incompatible with the Treaty
Belgium and the Netherlands concerning the régime of mentioned above by the fact that lockage water
diversions of water from the Meuse: this Treaty did not arising from the working of the Neerhaeren Lock-
invest either contracting Party with a right of control which operated bona fide for the passing of boats-is added
the other Party might not exercise. to the water from the Meuse coming from the intake
at Maestricht-as the Neerhaeren Lock cannot be
The obligation to take water solely through the feeder at treated more unfavourably than the Bosscheveld
Maestricht is imposed on both contracting Parties; the Lock.
normal use by the Parties of locks is not inconsistent with
the Treaty, provided that such use does not prejudice the (R) No breach of Belgium's engagements under the
régime instituted by the Treaty; subject to the same abovementioned Treaty will result from the
condition, each Party is entitled to alter or enlarge the canals circumstance that after the Albert Canal is brought
coming under the Treaty, so far as concerns canals which into use, water derived from the Meuse near Liége
are situated in its territory and do not leave it. wilI, between Hasselt and* lock IV, pass along the
section of that canal coinciding with a section of the
TO GOD BE THE GLORY
Hasselt branch of the canal joining the Meuse and

the Scheldt.
(S) Similarly, no inconsistency with Belgium's

engagements will result from bringing water
derived from the same source into the section of
the Albert Canal between Pulle and Antwerp which
coincides with the canal joining the Meuse and the
Scheld.
(T) Counterclaim:
That the Borgharen barrage has been

constructed in breach of the stipulations of this
same Treaty which is alleged by the
Netherlands Government to have been
disregarded by the Belgian Government as
regards certain stipulations. This alteration has
rendered the proper application of the Treaty
impossible, because the level of the Meuse
has been raised by the Borgharen barrage and
the water-gauge has been submerged.
– Treaty doesn’t forbid the

Netherlands from changing the
depth of water in the Meuse at
Maestricht without the consent
of Belgium, provided the
discharge of water nor the
volume of feeder nor current are Held: The Netherlands maintain that Article I of the Treaty,
affected. which provides for a single feeder, situated in Netherlands territory,
gives them the right to supervise and control all the intakes,
2. The Juliana Canal, being a canal below situated not only in their own territory but also in Belgian territory.
Maestricht, within the meaning of Article 1 of the This contention necessarily implies that “The treaty of 1863
Treaty, is subject, as regards the supply of water intended to place the Parties in a situation of legal inequality by
to it, to the same provisions as the canals on the conferring on the Netherlands a right to control to which Belgium
left bank of the Meuse below Maestricht. could not lay claim. But, in order to allow the existence of such
inequality between the Parties to a treaty concluded, the text of the
X – An intake situated on the treaty must say so in precise terms. In the absence of such terms,
left bank of the river cannot be the Court rejects the Netherlands’ submission.
regarded as intended to feed
canals situated on the right While criticizing the construction by Belgium of the
bank – not under the régime of Neerhaeren Lock, the Netherlands do not invoke a specific
water supply instituted by the provision of the Treaty. The Court grants that the Treaty has
Treaty brought into existence a certain regime which results from all its
provisions taken together and that, accordingly, it forms a complete
The Meuse is an international river. It rises in France, crosses whole, the different provisions of which cannot be dissociated from
Belgium and enters Netherlands territory. Though for the most the others and considered in isolation. This is equally the case with
part it has been canalized, the most important function of the Article I which must be interpreted together with the other Articles.
Meuse, at any rate in Belgium and in the Netherlands, is that of a In the light of this Article, thus interpreted, neither the Netherlands’
reservoir for other waterways. As a result of the geological contention regarding the Neerhaeren Lock, nor the Belgian reply,
formation, canalization works between Liége and Venlo are can be accepted in it entirety. Furthermore, the Court, after
difficult and costly. On the other hand, the people of the territory mentioning the construction by the Netherlands of the Bosscheveld
through which the Meuse flows are accustomed to make use of Lock, refuses to admit the Netherlands’ complaint about the
water transport, and where canals have been constructed for this construction and operation of a lock of which they themselves set
purpose they must in the main be supplied with water from the an example in the past.
Meuse.
With regard to the supply by Belgium to a section of the
Re: Construction of new canal connecting Antwerp and Rhine - Albert Canal of water taken from the Meuse elsewhere than at
The Netherlands Government have felt themselves unable to Maestricht, the Court considers that the origin of the water is
accede to the wishes of the Belgian Government because of the irrelevant. Nothing prevents either Belgium or the Netherlands from
commercial rivalry between Antwerp and Rotterdam. 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 transform 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
TO GOD BE THE GLORY
supply by Belgium to a section of another canal fo water taken from 2. This provision shall not prejudice the power of the Court
the Meuse elsewhere than at Meastricht. Having thus rejected all to decide a case ex aequo et bono, if the parties agree
the Netherlands’ submissions, the Court proceeds to deal with the thereto.
Belgian counterclaims, the first of which concerns the Borgharen
barrage. The Court finds that the Treaty does not forbid the (Ex aequo et bono (Latin for “according to the right and good”
Netherlands from altering the depth of water in the Meuse at or “from equity and consience”) )
maestricht without the consent of Belgium, provided that neither
the discharge of water through the feeder, not the volume of water
which it must supply nor the current in the Zuid- Willemsvaart is Article 53, Convention on the Law of Treaties (1969)
thereby affected. It is subject to this condition, and not at their
arbitrary discretion, that the Netherlands are entitled, under the Treaties conflicting with a peremptory norm of general
Treaty, to dispose of the waters of the Meuse at Maestricht. With internation law (“Jus Cogens”)
regard to the alleged interference, by the criticized construction, A treaty is void if, at the time of its conclusion, it conflicts with
with the navigability if that part of the Meuse common to both a peremptory norm of general international law. For the
States, the Court considers that Belgium has not produced any purpose of the present Convention, a peremptory norm of
proof of it. In reply to the second Belgian submission, which relates general international law is a norm accepted and recognized
to the Juliana Canal, the Court finds that the Treaty was designed by the International community of States as a whole as a norm
to regulate the supply of water to the canals situated on the left from which no derogation is permitted and which can be
bank of the Meuse only. Thus, canals situated on the right bank, modified only by a subsequent norm of general international
such as the Juliana Canal, do not come under the regime of water law having the same character.
supply provided for by the Treaty. For these reasons, the Court
rejects both the Netherlands’ submission and the submissions Section 2 Article II, 1987 Constitution
contained in the Belgian counter-claim.
The Philippines renounces war as an instrument of national policy,
INDIVIDUAL OPINION OF HUDSON adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of peace,
While he concurs in the judgment of the Court, Mr. equality, justice, freedom, cooperation, and amity with all nations
Hudson considers that there is room to apply here the principle of
equity. “A sharp division between law and equity, such as prevails 13. Kuroda vs. Jalandoni, 83 Phil. 171
in the administration of justice in some States, should find no place
in international jurisprudence. The question here is of a general Kuroda, a former Lt-General of the Japanese Imperial Army and
principle of law recognized by civilized nations in the sense of Commanding General of the Japanese Imperial Forces in the
Article 38 of the Statute, and the Court’s recognition of equity as Philippines, was charged before a Military Commision with having
part of international law is in no way restricted by the special power unlawfully disregarded and failed "to discharge his duties as such
conferred on it to decide a case ex aequo et bono (Latin for commander to control the operations of members of his command,
“according to the right and good” or “from equity and consience”) if permitting them to commit brutal atrocities and other high crimes
the Parties so agree. “It would seem to be an important principle of against noncombatant civilians and prisoners of the Imperial
equity that where two parties have assumed an identical or a Japanese Forces, in violation of the laws and customs of war”.
reciprocal obligation; one party which is engaged in a continuing
non-performance of that obligation should not be permitted to take Kuroda:
advantage of a similar non-performance of that obligation by the
other party. A tribunal, bound by International Law, ought not to 1. The commission is w/o jurisdiction to try since EO No.
shrink from applying a principle of such obvious fairness. In equity, 68 is unconstitutional since it violates not only the
the Netherlands cannot ask Belgium to discontinue the operation provisions of our constitutional law but also our local
of the Neerhaeren Lock when the Netherlands remain free to laws, to say nothing of the fact that the Philippines is not
continue the operation of the Bosscheveld Lock. Neither of these a signatory nor an adherent to the Hague Convention on
two requests should be granted where the circumstances are such Rules and Regulations covering Land Warfare and,
that the judgment would disturb that equality which is equity. If it therefore, petitioner is charged of 'crimes' not based on
preserves the equality between the Parties, the judgment may law, national and international."
better serve to facilitate their negotiations on the conclusion of a
new treaty to replace that of 1863. 2. Appointments as prosecutors for US of Attys
Hussey and Port are a violation of our Constitution
Article 38, Statute of International Court of Justice because they are not qualified to practice law in
1. The Court, whose function is to decide in accordance with the Philippines, acdg to Rules of Court.
international law such disputes as are submitted to it,
shall apply: 3. Attys Hussey and Port have no personality as
a. International conventions, whether general or prosecutors, the US not being a party in interest
particular, establishing rules expressly here.
recognized by the contesting states;
b. International custom, as evidence of a general Held: This Court will not interfere with the due processes of
practice accepted as law; such valid Military Commission.
c. The general principles of law recognized by
civilized nations; 1. EO 68, establishing a National War Crimes Office and
d. Subject to the provisions of Article 59, judicial prescribing rules and regulations governing the trial of
decision and the teachings of the most highly accused war criminals, is valid and constitutional. In
qualified publicists of the various nations, as accordance with the generally accepted principles of
subsidiary means for the determination of rules international law of the present day, including the Hague
of law. Convention, the Geneva Convention and significant
precedents of international jurisprudence established by
TO GOD BE THE GLORY
the United Nations, all those persons, military or civilian, stock used in cooking the vegetables served to the club
who have been guilty of planning, preparing or waging a customers.
war of aggression and of the commission of crimes and
offenses consequential and incidental thereto, in violation 3. In G.R. No. 80018 (US vs Ceballos), Luis Bautista,
of the laws and customs of war, of humanity and employed as barracks boy, was arrested following a buy-
civilization, are held accountable therefor. Consequently, busy operation conducted by officers of the US Air Force.
in the promulgation and enforcement of EO No. 68, the Bautista filed a complaint for damages against the officers
President of the Philippines has acted in conformity with claiming that it was because of their acts that he was
the generally accepted principles and policies of dismissed from his employment.
international law which are part of our Constitution. The
President exercised his power as Commander-in-chief of 4. In G.R. 80258 (US vs Vergara), a complaint for damages
AFP thru EO 68. The rules and regulations of the Hague was filed by private respondents against petitioners, for
and Geneva conventions form part of and are wholly injuries allegedly sustained by the plaintiffs when
based on the generally accepted principles of defendants beat them up, handcuffed them and unleased
international law. In fact, these rules and principles were dogs on them which bit them in several parts of their
accepted by the two belligerent nations, the United States bodies and caused extensive injuries to them. Petitioners
and Japan, who were signatories to the two Conventions. deny this and claim that the plaintiffs were arrested for
Such rules and principles, therefore, form part of the law theft and were bitten by the dogs because they were
of our nation even if the Philippines was not a signatory struggling and resisting arrest.
to the conventions embodying them, for our Constitution
has been deliberately general and extensive in its scope In all these cases, the officers claim that they were acting in their
and is not confined to the recognition of rules and capacity when they did the acts complained of and that the
principles of international law as contained in treaties to complaint against them was in effect a suit against the United
which our government may have been or shall be a States, which had not given its consent to be sued.
signatory. Furthermore, when the crimes charged against
petitioner were allegedly committed, the Philippines was The USA was not impleaded but has moved to dismiss on the
under the sovereignty of the United States, and thus we ground that they are in effect suits against it to which it has not
were equally bound together with the United States and consented.
with Japan, to the rights and obligations contained in the
treaties between the belligerent countries. Issue:
Whether or not petitioners are immune from suit?
2. Military Commission is a special military tribunal
governed by a special law and not by the Rules of Held:
Court which govern ordinary civil courts. There is The rule that a State may not be sued without its consent (Article
nothing in EO 68 which requires that counsel appearing 16, Sec 3, 1987 Constitution) is one of the generally accepted
before said commissions must be attorneys qualified to principles of international law that were have adopted as part of the
practice law in the Philippines in accordance with the law of our land (Article 2, Section 2, 1987 Constitution).
Rules of Court. In fact, it is common in military tribunals
that counsel for the parties are usually military Even without such affirmation, we would still be bound by the
personnel who are neither attorneys nor even generally accepted principles of international law under the
possessed of legal training. doctrine of incorporation. Under this doctrine, as accepted by the
majority of the states, such principles are deemed incorporated in
3. The United States and its people have been equally, if the law of every civilized state as a condition and consequence of
not more greatly, aggrieved by the crimes with which its membership in the society of nations. Upon its admission to
petitioner stands charged before the Military such society, the state is automatically obligated to comply with
Commission. It can be considered a privilege for our these principles in its relations with other states.
Republic that a leader nation should submit the
vindication of the honor of its citizens and its As applied to the local state, the doctrine of state immunity is based
government to a military tribunal of our country. on the justification given by Justice Holmes that “there can be no
legal right against the authority which makes the law on which the
14. U.S.A. vs. Guinto, 182 SCRA 645 right depends.”
[US Air Force; GAPIL; Doctrine of State of Immunity] In the case of foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par in
Facts: parem, non habet imperium. All states are sovereign equals and
These cases have been consolidated because they all involve the cannot assert jurisdiction over one another. A contrary disposition
doctrine of state immunity. would “unduly vex the peace of nations”.
1. In G.R. No. 76607 (US vs Guinto), respondents are
suing several officers of the US Air Force stationed in While the doctrine appears to prohibit only suits against the state
Clark Air base in connection with the bidding conducted without its consent, it is also applicable to complaints filed against
by them for contracts for barbering services in the said officials of the states for acts allegedly performed by them in the
base. discharge of their duties. The rule is that if the judgment against
such officials will require the state itself to perform an affirmative
2. In G.R. No. 79470 (US vs Rodrigo), Fabian Genove filed act to satisfy the same, the suit must be regarded as against the
a complaint against petitioners for his dismissal as cook state although it has not been formally impleaded. When the
in the US Air Force Recreation Center at the John Hay Air government enters into a contract, it is deemed to have descended
Station in Baguio City. It had been ascertained after the to the level of the other contracting party and divested of its
investigation that Genove had poured urine into the soup sovereign immunity from suit with its implied consent.

TO GOD BE THE GLORY
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 15. Holy See vs. Rosario, 238 SCRA 524
agents in the Philippines. Neither may the other petitioners claim
that they are also insulated from suit in this country merely because DOCTRINE:
they have acted as agents of the United States in the discharge of Under Public International Law, being an object of public
their official functions. international law, a person who feels aggrieved by the acts of a
foreign sovereign can ask his own government to espouse his
There is no question that the USA, like any other state, will be cause through diplomatic channels.
deemed to have impliedly waived its non-suability if it has entered
into a contract in its proprietary or private capacity (commercial FACTS:
acts/jure gestionis). It is only when the contract involves its The Holy See who exercises sovereignty over the Vatican City in
sovereign or governmental capacity (governmental acts/jure Rome, Italy, and is represented in the Philippines by the Papal
imperii) that no such waiver may be implied. Nuncio. Private respondent, Starbright Sales Enterprises, Inc., is a
domestic corporation engaged in the real estate business.
Stated differently, a State may be said to have descended to the
level of an individual and can thus be deemed to have tacitly given This controversy stems from a parcel of land consisting of 6,000
its consent to be sued only when it enters into business contracts. square meters (Lot 5-A, Transfer Certificate of Title No. 390440)
It does not apply where the contract relates to the exercise of its located in the Municipality of Parañaque, Metro Manila and
sovereign functions. (US vs Ruiz, in the words of Justice Vicente registered in the name of petitioner. Said Lot 5-A is contiguous to
Abad Santos) Lots 5-B and 5-D which are covered by Transfer Certificates of Title
Nos. 271108 and 265388 respectively and registered in the name
Thus: of the Philippine Realty Corporation (PRC).The three lots were sold
1. In G.R. No. 76607 (US vs Guinto), the court finds that to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as
the barbershops subject of the concessions granted by agent to the sellers. Later, Licup assigned his rights to the sale to
the United States government are commercial private respondent. In view of the refusal of the squatters to vacate
enterprises operated by private persons. They are not the lots sold to private respondent, a dispute arose as to who of
agencies of the United States Armed Forces nor are their the parties has the responsibility of evicting and clearing the land
facilities demandable as a matter of right by the American of squatters. Complicating the relations of the parties was the sale
servicemen. Thus, the petitioners cannot implead any by petitioner of Lot 5-A to Tropicana Properties and Development
immunity from the complaint filed by the private Corporation (Tropicana).
respondents.
The Holy See and Msgr. Cirilos separately moved to dismiss the
2. In G.R. No. 79470 (US vs Rodrigo), the court assumes complaint — petitioner for lack of jurisdiction based on sovereign
that the restaurant services offered at the John Hay Air immunity from suit, and Msgr. Cirilos for being an improper party.
Station partake of the nature of a business enterprise An opposition to the motion was filed by private respondent.The
undertaken by the United States government in its trial court issued an order denying, among others, petitioner's
proprietary capacity. Such services are not extended to motion to dismiss after finding that petitioner "shed off [its]
the American servicemen for free, and neither does it sovereign immunity by entering into the business contract in
appear that they are for exclusively offered to the question" (Rollo, pp. 20-21).Petitioner invokes the privilege of
servicemen as it is well known that they are available to sovereign immunity only on its own behalf and on behalf of its
the general public as well. Thus, petitioners cannot invoke official representative, the Papal Nuncio.
the doctrine of state immunity to justify the dismissal of
the damage suit against them by Genove. The reason is A Motion for Intervention was filed by the Department of Foreign
that by entering into the employment contract with Affairs, claiming that it has a legal interest in the outcome of the
Genove in the discharge of its proprietary functions, it case as regards the diplomatic immunity of petitioner, and that it
implied divested itself of its sovereign immunity from suit. "adopts by reference, the allegations contained in the petition of
the Holy See insofar as they refer to arguments relative to its claim
3. In G.R. No. 80018 (US vs Ceballos), it is clear that the of sovereign immunity from suit" (Rollo, p. 87).
officers were acting in the exercise of their official
functions when they conducted the buy-bust operation ISSUES:
against the complainant and thereafter testified against 1. WON the Holy See is immune from suit.
him at his trial. It follows that for discharging their duties 2. WON the private respondent is entitled to legal remedies.
as agents of the United States, they cannot be directly
impleaded for acts imputable to their principal, which has RULING:
not given its consent to be sued. First Issue: YES
4. In G.R. 80258 (US vs Vergara), the contradictory factual Sovereignty of The Vatican
allegations deserve a closer study of what actually In Public International Law, when a state or international agency
happened to the plaintiffs. The record is too meager to wishes to plead sovereign or diplomatic immunity in a foreign court,
indicate if the defendants were really discharging their it requests the Foreign Office of the state where it is sued to convey
official duties or had actually exceeded their authority to the court that said defendant is entitled to immunity.
when the incident in question occurred. Lacking this In the United States and England, the procedure followed is the
information, the Court cannot directly decide this case. process of "suggestion," where the foreign state or the international
The needed inquiry must first be made by the lower court organization sued in an American or English court requests the
so it may assess and resolve the conflicting claims of the Secretary of State or the Foreign Office to make a determination
parties. Only after it shall have determined in what as to whether it is entitled to immunity. In the Philippines, the
capacity the petitioners were acting that the time of the practice is for the foreign government or the international
incident in question will the Court determine if the doctrine organization to first secure an executive endorsement of its claim
of state immunity is applicable. of sovereign or diplomatic immunity. But how the Philippine
TO GOD BE THE GLORY
Foreign Office conveys its endorsement to the courts varies. In the diplomatic mission to the Republic of the Philippines exempt from
case at bench, the Department of Foreign Affairs, through the local jurisdiction and entitled to all the rights, privileges and
Office of Legal Affairs moved with this Court to be allowed to immunities of a diplomatic mission or embassy in this country
intervene on the side of petitioner. The Court allowed the said (Rollo, pp. 156-157). The determination of the executive arm of
Department to file its memorandum in support of petitioner's claim government that a state or instrumentality is entitled to sovereign
of sovereign immunity. or diplomatic immunity is a political question that is conclusive
In 1929, Italy and the Holy See entered into the Lateran Treaty, upon the courts (International Catholic Migration Commission v.
where Italy recognized the exclusive dominion and sovereign Calleja, 190 SCRA 130 [1990]).
jurisdiction of the Holy See over the Vatican City. The Lateran
Treaty established the statehood of the Vatican City "for the Second Issue:
purpose of assuring to the Holy See absolute and visible Under both Public International Law and Transnational Law, a
independence and of guaranteeing to it indisputable sovereignty person who feels aggrieved by the acts of a foreign sovereign can
also in the field of international relations" (O'Connell, I International ask his own government to espouse his cause through diplomatic
Law 311 [1965]). Despite its size and object, the Vatican City has channels. According to the Permanent Court of International
an independent government of its own, with the Pope, who is also Justice, the forerunner of the International Court of Justice:
head of the Roman Catholic Church, as the Holy See or Head of By taking up the case of one of its subjects and
State, in conformity with its traditions, and the demands of its by reporting to diplomatic action or international
mission in the world. Indeed, the world-wide interests and activities judicial proceedings on his behalf, a State is in
of the Vatican City are such as to make it in a sense an reality asserting its own rights — its right to
"international state". (Fenwick, supra., 125; Kelsen, Principles of ensure, in the person of its subjects, respect for
International Law 160 [1956]). the rules of international law (The Mavrommatis
The Republic of the Philippines has accorded the Holy See the Palestine Concessions, 1 Hudson, World Court
status of a foreign sovereign. The Holy See, through its Reports 293, 302 [1924]).
Ambassador, the Papal Nuncio, has had diplomatic
representations with the Philippine government since 1957 (Rollo, 16. Reyes vs. Bagatsing, 125 SCRA 553
p. 87). This appears to be the universal practice in international
relations. DOCTRINE
Despite that the Constitution adopts the generally accepted
Jure Impreii vs. Jure Gestionis principles of international law as part of the law of the land, such
According to the classical or absolute theory, a sovereign cannot, adoption cannot supersede the primacy of Constitutionally-
without its consent, be made a respondent in the courts of another guaranteed rights (which, in this case, freedom of expression and
sovereign. According to the newer or restrictive theory, the to peaceful assembly). As an exception, if the activities present a
immunity of the sovereign is recognized only with regard to public clear and danger rule, such primacy should not be applied (It is
acts or acts jure imperii of a state, but not with regard to private imperative to take note that this exception is applied because of
acts or acts jure gestionis. Some states passed legislation to serve the peculiar circumstances of this case. Hence, this is not a
as guidelines for the executive or judicial determination when an constant exception to the general rule).
act may be considered as jure gestionis.
FACTS
In the absence of legislation defining what activities and Petitioner, retired Justice JB L. Reyes, on behalf of the
transactions shall be considered "commercial" and as constituting Anti-Bases Coalition sought a permit from the City of Manila to hold
acts jure gestionis, we have to come out with our own guidelines, a peaceful march and rally on October 26, 1983 from 2:00 to 5:00
tentative they may be. The logical question is whether the foreign in the afternoon, starting from the Luneta, a public park, to the
state is engaged in the activity in the regular course of business. If gates of the United States Embassy, hardly two blocks away. Once
the foreign state is not engaged regularly in a business or trade, there, and in an open space of public property, a short program
the particular act or transaction must then be tested by its nature. would be held. A petition based on the resolution adopted on the
If the act is in pursuit of a sovereign activity, or an incident thereof, last day by the International Conference for General
then it is an act jure imperii, especially when it is not undertaken Disbarmament, World Peace and the Removal of All Foreign
for gain or profit. Military Bases held in Manila, would be presented to a
representative of the Embassy so that it may be delivered to the
The right of a foreign sovereign to acquire property, real or United States Ambassador. However, Mayor Bagatsing of the City
personal, in a receiving state, necessary for the creation and of Manila denied the application of the permit. The reason was due
maintenance of its diplomatic mission, is recognized in the 1961 to police intelligence reports indicating that there are plans of
Vienna Convention on Diplomatic Relations (Arts. 20-22) which subversive/criminal elements to infiltrate and/or disrupt any
was concurred to by the Philippine Senate and was entered into assembly or congregations where a large number of people is
force in the Philippines on November 15, 1965. In Article 31(a) of expected to attend. Respondent Mayor suggested, however, in
the Convention, a diplomatic envoy is granted immunity from the accordance with the recommendation of the police authorities, that
civil and administrative jurisdiction of the receiving state over any "a permit may be issued for the rally if it is to be held at the Rizal
real action relating to private immovable property situated in the Coliseum or any other enclosed area where the safety of the
territory of the receiving state which the envoy holds on behalf of participants themselves and the general public may be ensured."
the sending state for the purposes of the mission.
ISSUE
Lot 5-A was acquired by petitioner as a donation from the WON a provision of a treaty may supersede a provision of the
Archdiocese of Manila for the construction of the official place of Constitution that guarantees a fundamental right?
residence of the Papal Nuncio and not for profit. Its subsequent The more pivotal question to decipher the doctrine in this case:
disposal was likewise clothed with a governmental character. What would be the treatment if a provision of a treaty on which the
Petitioner did not sell Lot 5-A for profit but because the squatters Republic of the Philippines is a signatory interplays with primary
made it almost impossible for petitioner to use it. The Department provisions of the Constitution?
of Foreign Affairs has formally intervened in this case and officially
certified that the Embassy of the Holy See is a duly accredited RULING
TO GOD BE THE GLORY
Given that rally would be held in the public spaces Facts:

between two gates of the United States Embassy at the Roxas In 1933 an oil concession agreement was concluded between the
Boulevard, it seems that such activity may be in conflict with a Government of Iran and the Anglo-Iranian Oil Company. In 1951,
provision of Vienna Convention which states ‘the receiving State is the Iranian Oil Nationalization Act was passed in Iran for the
under a special duty to take appropriate steps to protect the nationalization of the oil industry. This resulted in a dispute
premises of the mission against any intrusion or damage and to between Iran and the company. The United Kingdom took up the
prevent any disturbance of the peace of the mission or impairment company’s case and instituted proceedings before the Court.
nd
of its dignity (Article 22, 2 paragraph).’ Under the Doctrine of
Incorporation, provisions of a treaty are integral part of the law of Iran: ICJ has no jurisdiction because the claim was instituted after
the land. On that score and to the very wordings of the decision, Iran’s denunciation of its Declaration of adherence to the Optional
the Constitution “adopts the generally accepted principles of Clause under Art. 36 of the Court’s statute on 1932. The
international law as part of the law of the land. To the extent that ratification/denunciation limits the jurisdiction of the ICJ to disputes
the Vienna Convention is a restatement of the generally accepted arising after the ratification. The claim of the UK arises either from
principles of international law, it should be a part of the law of the (1) application of the most-favored-nation clause which only
land. appears from the treaties between Iran and the UK in 1857 and
This case presents a question on how to treat the 1903, (2) an exchange of notes (not a treaty) between the two
interplays of international law vis-à-vis with the domestic law. To States noting Iran’s undertaking to respect the rules of general
be precise, it is a question on how to treat the interplays between international law in regard to British nationals in 1928, or (3) the
a provision of a treaty on which the Republic of the Philippines is a alleged tacit agreement between the two in connection to the
signatory which makes the provisions “part of the law of the land”, renewal of the oil company’s concession in 1933 - formally
vis-à-vis the upholding of the Constitution of the freedom of speech disputed by Iran, was not put into writing, and not registered with
and to participate in peaceful activity. The Supreme Court utilizes the League of Nations. All of these grounds were concluded before
the “Clear and Present Danger Rule” to bring harmony on the the ratification of Iran’s declaration and therefore the ICJ lacks
interplay or interactions of the provisions and principles enshrined jurisdiction over the dispute.
in the Constitution and of Vienna Convention given of the peculiar
circumstances of this case. UK: Iran’s declaration of accepting the Optional Clause covers
“Unless the ordinance is nullified, or declared ultra vires, its disputes arising from treaties/conventions it entered into at any
invocation as a defense is understandable but not decisive, in time (iow, even after the ratification). Also, that the conduct of Iran
view of the primacy accorded the constitutional rights of free towards the oil company constitutes breach of the treaties it
speech and peaceable assembly. Even if shown then to be entered into with Denmark (1934), Switzerland (1934) and Turkey
applicable, that question that confronts this Court.” (1987), which has stipulations that Iran promised to treat the
This part of the ruling seems to include invocation of the earlier nationals of these countries in accordance with ordinary
stated provision of the Vienna Convention. To decipher the international law, and because of the most-favored-nation clause,
doctrine here, it is imperative to take note of these fundamental this would also apply to British nationals. UK also invokes that the
premises: tacit agreement it had with Iran on 1933 has a double character -
1. The phrase in the ruling: in view of the primacy accorded a concessionary contract and a treaty between the two countries.
the constitutional rights of free speech and peaceable
assembly. Issue:
2. The phrase in the ruling: the Constitution “adopts the W/N the ICJ has jurisdiction to decide the dispute
generally accepted principles of international law as part
of the law of the land. To the extent that the Vienna Ruling:
Convention is a restatement of the generally accepted The jurisdiction of the ICJ to deal with and decide a case on the
principles of international law, it should be a part of the merits depends on the will of the parties.
law of the land. (Doctrine of Incorporation)
3. Application of “Clear and Present Danger Rule” In the present case, the jurisdiction of the ICJ depends on the
Deeper circumspection reveals that the ratio decidendi states declarations made by the parties under Art. 36 of the ICJ statute,
this principle: on condition of reciprocity, which the UK signed on 1940 while Iran
Despite that the Constitution adopts the generally accepted signed on 1930 and ratified it on 1932. Since Iran’s declaration is
principles of international law as part of the law of the land, such more limited in scope, the ICJ must base its jurisdiction on it.
adoption cannot supersede the primacy of Constitutionally- According to Iran’s declaration, the ICJ only has jurisdiction when
guaranteed rights (which in this case freedom of expression and to the dispute arises from a treaty/convention it entered into. The
peaceful assembly). As an exception, if the activities presents a question is whether these treaties refer to those which Iran entered
clear and danger rule, such primacy should not be applied. (It is into after the ratification or at any time. The ICJ ruled that the
imperative to take note that this exception is applied because of intention of the text of Iran’s declaration was to exclude all treaties
the peculiar circumstances of this case. Hence, this is not a that it concluded before submission to the compulsory jurisdiction
constant exception to the general rule). of the ICJ. This was confirmed by an Iranian law passed on 1931
which contained an article that the compulsory jurisdiction of the
ICJ was accepted by Iran relating to treaties/conventions it entered
into after the ratification.
C. Treaties
As to the UK invoking the treaties between Iran and Denmark et al,
1. South-West Africa cases (supra.) the ICJ said that for the UK to enjoy the benefit of the most-favored-
nation clause, it must invoke the very same treaty which grants the
2. Anglo-Iranian Oil Co. case (ICJ Reports, 1952) said clause. The treaties that UK should have relied upon were,
however, concluded on 1857 and 1903, which were before the
Principle: ratification.
The jurisdiction of the ICJ to deal with and decide a case on the
merits depends on the will of the parties. Moreover, the ICJ ruled that the tacit agreement between the UK
and Iran was a mere concessionary contract and not a treaty
TO GOD BE THE GLORY
between the two States. The UK government was not a party to conclusion of treaties. On these grounds, it concludes that the ICJ
the contract. has no jurisdiction.
The UK also argued that during the time of Iran’s declaration, it Issue/s:
entered into treaties with other countries which contained 1) W/N the 1990 Minutes constitute a treaty between the two
arbitration clauses submitting to the jurisdiction of the ICJ. On this parties
matter, the ICJ ruled that there is a difference between Iran’s
declaration and the arbitration clauses in treaties it entered into, Ruling:
the former being general and the latter, particular. Yes. The ICJ stated that a treaty may take a number of forms and
be given a diversity of names.
(Not connected to treaties but the UK also invoked the principle of
forum prorogatum saying that since Iran has submitted to the ICJ The ICJ held that the 1990 Minutes include a reaffirmation of
for decision of several questions, then it has accepted that the ICJ obligations previously entered into; they entrust King Fahd with the
has jurisdiction. The ICJ however ruled that from the very start, Iran task of attempting to find a solution to the dispute during a period
has consistently denied the jurisdiction of the ICJ over the dispute.) of six months; and, lastly, they address the circumstances under
which the Court could be seised after May 1991. The Minutes are
3. Qatar vs. Bahrain (ICJ Reports, 1994, p. 112) not a simple record of a meeting; they do not merely give an
account of discussions and summarize points of agreement and
Principle (Definition of a treaty): disagreement. They enumerate the commitments to which the
Treaty means an international agreement concluded between Parties have consented. They thus create rights and obligations in
States in written form and governed by international law, whether international law for
embodied in a single instrument or in two or more related the Parties. They constitute an international agreement.
instruments and whatever its particular designation.
Moreover, the ICJ stated that an international agreement or treaty
Facts: that has not been registered with the Secretariat of the United
On 1991, Qatar filed in the Registry of the Court an Application Nations may not, according to the provisions of Article 102 of the
instituting proceedings against Bahrain in respect of certain Charter, be
disputes between the two States relating to sovereignty over the invoked by the parties before any organ of the United Nations.
Hawar Islands, sovereign rights over the shoals of Dibal and Qit’at Nonregistration or late registration, on the other hand, does not
Jaradah and the delimitation of their maritime areas. have any consequence for the actual validity of the agreement,
which remains no less binding upon the parties. The Court
As early as 1976, the two States have already entered into therefore cannot infer from the fact that Qatar did not apply for
mediation (aka “good offices”) by the King of Saudi Arabia with the registration of the 1990 Minutes until six months after they were
stipulation that in case of failure of the mediation, the parties shall signed that Qatar considered, in December 1990, that those
determine the best means of resolving the matter on the basis of Minutes did not constitute an international agreement.
the provisions of international law. For years there was no progress
on the settlement of the dispute. 4. Reservations to the Genocide Convention Case
(ICJ Advisory Opinion, 1951)
On 1987, the King of Saudi sent letters to Qatar and Bahrain
containing new proposals for the settlement of the dispute stating Principle:
that the dispute will be brought to the ICJ and the creation of a In its treaty relations, a State cannot be bound without its consent,
committee composed of representatives from the two States. The and that consequently no reservation can be effective against any
committee failed to arrive at an agreement. State without its agreement thereto.
On 1988, Bahrain presented “the Bahraini formula” to Qatar which Facts:

basically states that they would submit the dispute to the ICJ. Both In November 1950, the General Assembly asked the Court a series
agreed in principle but with Qatar having reservations on the matter of questions as to the position of a State which attached
of Zubarah. Two years later (1990), Qatar accepted the Bahraini reservations to its signature of the multilateral Convention on
formula in a meeting of the parties. The minutes of the meeting Genocide if other States, signatories of the same Convention,
stated that the “good offices” between the two will continue until objected to these reservations.
1991 and that after the end of this period, they will submit the
dispute to the ICJ in accordance with the Bahraini formula. Issue/s:
1) Can the reserving State be regarded as being a party to the
Qatar: Since both parties had given their consent through their Convention while still maintaining its reservation if the reservation
international agreements, the ICJ has jurisdiction to adjudicate the is objected to by one or more of the parties to the Convention but
dispute upon the application of Qatar. not by others?
Bahrain: The 1990 Minutes do not constitute a legally binding 2) If the answer to Question 1is in the affirmative, what is the effect
instrument and that the 1987 exchanges and the 1990 Minutes do of the reservation as between the reserving State and:
not enable Qatar to submit to the ICJ unilaterally. Also that in the (a) The parties which object to the reservation?
1990 Minutes, Bahrain insisted that the dispute can only be (b) Those which accept it?
submitted to the ICJ by the two parties. Moreover, it contends that
the subsequent actions of Qatar also manifests that it did not 3) What would be the legal effect as regards the answer to
consider the Minutes as a treaty because 1) it was only in 1991 Question 1 if an objection to a reservation is made:
that Qatar registered the Minutes in the UN Secretariat and that (a) By a signatory which has not yet ratified?
Bahrain contested such registration, 2) Qatar failed to register the (b) By a State entitled to sign or accede but which has not yet done
minutes in the League of Arab States General Secretariat, and 3) so?
Qatar did not follow its own Constitution on the procedure for
Opinion:
TO GOD BE THE GLORY
1) The ICJ considered that even if a convention contained no Doctrine of error elements:
article on the subject of reservations, it did not follow that they were 1. Error is about a fact or situation which was assumed to exist
prohibited. It did not give an absolute answer, only that the at the time of conclusion;
character of the convention, its purposes and its provisions must 2. That fact or situation form an essential basis of the consent
be taken into account in determining if a reserving party can still be to be bound of the treaty;
regarded as a party to the convention. The ICJ said that a State 3. The state invoking the error must not have contributed to the
which has made and maintained a reservation which has been error. (Doctrine of Clean Hands)
objected to by one or more of the parties to the Convention but not 4. The state had known of the error or would have known of the
by others, can be regarded as being a party to the Convention if error.
the reservation is compatible with the object and purpose of the
Convention; otherwise, that State cannot be regarded as being a Facts:
party to the Convention. Cambodia complained that Thailand had occupied a piece of its
territory surrounding the ruins of the Temple of Preah Vihear, a
This is in accordance with the principle that, in its treaty relations, place of pilgrimage and worship for Cambodians, and asked the
a State cannot be bound without its consent, and that consequently Court to declare that territorial sovereignty over the Temple
no reservation can be effective against any State without its belonged to it and that Thailand was under an obligation to
agreement withdraw the armed detachment stationed there since 1954.
thereto. It is also a generally recognized principle that a multilateral Thailand filed preliminary objections to the Court’s jurisdiction,
convention is the result of an agreement freely concluded upon its which were rejected in a Judgment given on 26 May 1961. In its
clauses and that consequently none of the contracting parties is Judgment on the merits, rendered on 15 June 1962, the Court
entitled to frustrate or impair, by means of unilateral decisions or noted that a Franco-Siamese Treaty of 1904 provided that, in the
particular agreements, the purpose and raison d'être of the area under consideration, the frontier was to follow the watershed
convention. line, and that a map based on the work of a Mixed Delimitation
Commission showed the Temple on the Cambodian side of the
Moreover, the object and purpose of the Genocide Convention boundary. Thailand asserted various arguments aimed at showing
imply that it was the intention of the General Assembly and of the that the map had no binding character. One of its contentions was
States which adopted it that as many States as possible should that the map had never been accepted by Thailand or,
participate. The complete exclusion from the Convention of one or alternatively, that if Thailand had accepted it, it had done so only
more States would not only restrict the scope of its application, but because of a mistaken belief that the frontier indicated
would detract from the authority of the moral and humanitarian corresponded to the watershed line.
principles which are its basis. (Iow, if because of a State’s
reservation in its ratification of the Convention it will be completely Issue:
excluded as a party, it would defeat the purpose of the Convention WON Thailand is correct in claiming that the map cannot bind them
which is to include as many states as possible and to subject these because their consent to the accuracy of the map had been vitiated
states to the prohibition against genocide.) by error?
2) As regards the effects of the reservation in relations between Ruling:

States, the Court considered that every State was therefore free to NO. The ICJ noticed that Thailand (together with France) had
decide for itself whether the State which formulated the reservation participated during the preparation of the map. If there were errors
was or was not a party to the convention. in the map, these errors cannot be used as basis to invalidate
a) If a party to the Convention objects to a reservation which it Thailand’s consent because through its participation it had
considers to be incompatible with the object and purpose of the contributed to the error. Hence, the Court found that Thailand had
Convention, it can in fact consider that the reserving State is not a indeed accepted the map and concluded that the Temple was
party to the Convention. situated on Cambodian territory. It also held that Thailand was
b) If, on the other hand, a party accepts the reservation as being under an obligation to withdraw any military or police force
compatible with the object and purpose of the Convention, it can in stationed there and to restore to Cambodia any objects removed
fact consider that the reserving State is a party to the Convention. from the ruins since 1954.
Whatever the decision of the objecting State is only binding 6. Advisory Opinion on Namibia (ICJ Reports
between them and the reserving State. Moreover, if a State 1971)
nevertheless objects to the reservation of another State even if it
does not claim that such reservation is incompatible with the object
Fact: South Africa occupied Namibia (formerly South West Africa)
and purpose of the Convention, the Convention will still enter into
where it instituted a system of apartheid. In 1966, in response to
force between them except for the clauses affected by the
apartheid, the United Nations General Assembly issued a
reservation.
resolution stating that South Africa’s continued mandate from the
League of Nations to Namibia was terminated. The General
3) (a) An objection to a reservation made by a signatory State
Assembly concluded that South Africa breached the mandate by
which has not yet ratified the Convention can have the legal effect
instituting apartheid and was thus in Namibia illegally. South Africa
indicated in the reply to Question 1 only upon ratification. Until that
ignored the General Assembly’s resolution, however, and the
moment it merely serves as a notice to the other State of the
United Nations Security Council considered the situation. The
eventual attitude of the signatory State.
Security Council reaffirmed the General Assembly’s resolution and
(b) An objection to a reservation made by a State which is entitled
stated that South Africa’s continued presence in Namibia was
to sign or accede but which has not yet done so, is without legal
illegal. South Africa remained unresponsive to this resolution. The
effect.
Security Council requested an advisory opinion from the
International Court of Justice on the following questions: “What are
5. Preah VihearTemple Case (Cambodia vs. the legal consequences for States of the continued presence of
Thailand, ICJ Reports, 1960) South Africa in Namibia, notwithstanding Security Council
resolution 276 (1970)?”
Doctrine:
TO GOD BE THE GLORY
7. Appeal Relating to the Jurisdiction of the ICAO

Facts: This case concerned a request by the Security Council for Council (India v. Pakistan)(ICJ, 1972)
an Advisory Opinion on the legal consequences for States of the
continued presence of South Africa in Namibia notwithstanding Facts.
Security Council Resolution 276 (1970). In the course of the A complaint against India (P) was brought before the Council of the
proceedings, objections were raised by South Africa against International Civil Aviation Organization (ICAO) by Pakistan (D) for
participation in the proceedings of three Members of the Court. the violation of treaty provisions after India (P) unilaterally
These objections were based on statements which the Judges in suspended flights of Pakistan (D) aircraft over Indian (P) territory.
question had made in their former capacity as representatives of Based on the premise that Pakistan (D) had hijacked an Indian (P)
their Governments in United Nations organs dealing with matters plane, Indian (P) appealed to the I.C.J., asserting that it had
concerning Namibia, or their participation in the same capacity in suspended the treaty. Pakistan (D) objected to the jurisdiction of
the work of those organs. the I.C.J.’s on the ground that India’s (P) unilateral suspension had
made the jurisdictional clauses inoperative.
The Court came to the conclusion that none of the three cases
called for the application of Article 17, paragraph 2, of its Statute.14 Issue.
In doing so the Court stated that, Are jurisdictional clauses rendered inoperative by mere unilateral
suspension?
In making Order No. 2 of 26 January 1971, Held.
the Court found no reason to depart in the No. Jurisdictional clauses are not rendered inoperative by a mere
present advisory proceedings from the unilateral suspension alone. If a mere allegation that a treaty was
decision adopted by the Court in the Order no longer operative could be used to defeat its jurisdictional
of 18 March 1965 in the South West Africa clauses, then clauses of these nature would become potentially a
cases (Ethiopia v. South Africa; Liberia v. dead letter. This implies that the Court does have jurisdiction.
South Africa) after hearing the same
contentions as have now been advanced by Discussion.
the Government of South Africa. In deciding The Court was able to deduce that any treaty could be destroyed
the other two objections, the Court took into by one party’s assertion that the treaty was no longer operative,
consideration that the activities in United thereby compromising the main goal the treaty seeks to achieve. It
Nations organs of the Members concerned, may precisely be one of the objects of jurisdictional clauses of a
prior to their election to the Court, and which treaty to enable that matter to be adjudicated upon.
are referred to in the written statement of
the Government of South Africa, do not
furnish grounds for treating these objections
differently from those raised in the 8. Gabcikovo-Nagymaros Project
application to which the Court decided not (Hungary/Slovakia) (ICJ, 1997)
to accede in 1965, a decision confirmed by
its Order No. 2 of 26 January 1971. With In 1977, Hungary (P) and Czechoslovakia (D) signed a Treaty for
reference to Order No. 3 of the same date, the construction of dams and other projects along the Danube
the Court also took into consideration a River that bordered both nations. Czechoslovakia (D) began work
circumstance to which its attention was on damming the river in its territory when Hungary (P) stopped
drawn, although it was not mentioned in the working on the project and negotiation could not resolve the matter
written statement of the Government of which led Hungary
South Africa, namely the participation of the
Member concerned, prior to his election to (U) to terminate the Treaty. Hungary (P) based its action on
the Court, in the formulation of Security the fact that the damming of the river had been agreed to only on
Council resolution 246 (1968), which the ground of a joint operation and sharing of benefits associated
concerned the trial at Pretoria of thirty- with the project, to which Czechoslovakia (D) had unlawfully
seven South West Africans and which in its unilaterally assumed control of a shared resource.
preamble took into account General
Assembly resolution 2145 (XXI). The Court Issue. Shall watercourse states participate in the use, development
considered that this participation of the and protection of an international watercourse in an equitable and
Member concerned in the work of the UN, reasonable manner?
as a representative of his Government, did
not justify a conclusion different from that Held. Yes. Watercourse states shall participate in the use,
already reached with regard to the development and protection of an international watercourse in an
objections raised by the Government of equitable and reasonable manner. Hungary (P) was deprived of its
South Africa. Account must also be taken in rights to an equitable and reasonable share of the natural
this respect of precedents established by resources of the Danube by Czechoslovakia (D) and also failed to
the present Court and the Permanent Court respect the proportionality that is required by international law.
wherein judges sat in certain cases even Cooperative administration must be reestablished by the parties of
though they had been taken part in the what remains of the project.
formulation of texts the Court was asked to
interpret. After deliberation, the Court The Court’s decision was that the joint regime must be restored. In
decide, by 3 Orders dated January 26, order to achieve most of the Treaty’s objectives, common
1971, and made public on that date, not to utilization of shared water resources was necessary. Hence, the
accede to the objections which had been defendant was not authorized to proceed without the plaintiff’s
raised. consent.

TO GOD BE THE GLORY
In-depth notes: the Court's view, therefore, the notification of termination by

Hungary on 19 May 1992 was premature. No breach of the Treaty
Notification by Hungary, on 19 May 1992, of the termination of the by Czechoslovakia had yet taken place and consequently Hungary
1977 Treaty and related instruments (paras. 89-115) was not entitled to invoke any such breach of the Treaty as a
ground for terminating it when it did.
By the terms of Article 2, paragraph 1 (c), of the Special
Agreement, the Court is asked, thirdly, to determine 5. Development of new norms of international
environmental law
"What are the legal effects of the notification, on 19 May
1992, of the termination of the Treaty by the Republic of The Court notes that neither of the Parties contended that new
Hungary". peremptory norms of environmental law had emerged since the
conclusion of the 1977 Treaty; and the Court will consequently not
During the proceedings, Hungary presented five arguments in be required to examine the scope of Article 64 of the Vienna
support of the lawfulness, and thus the effectiveness, of its Convention on the Law of Treaties (which treats of the voidance
notification of termination. These were the existence of a state of and termination of a treaty because of the emergence of a new
necessity; the impossibility of performance of the Treaty; the peremptory norm of general international law (jus cogens)). On the
occurrence of a fundamental change of circumstances; the other hand, the Court wishes to point out that newly developed
material breach of the Treaty by Czechoslovakia; and, finally, the norms of environmental law are relevant for the implementation of
development of new norms of international environmental law. the Treaty and that the parties could, by agreement, incorporate
Slovakia contested each of these grounds: them through the application of Articles 15, 19 and 20 of the Treaty.
These articles do not contain specific obligations of performance
2. State of necessity but require the parties, in carrying out their obligations to ensure
that the quality of water in the Danube is not impaired and that
The Court observes that, even if a state of necessity is found to nature is protected, to take new environmental norms into
exist, it is not a ground for the termination of a treaty. It may only consideration when agreeing upon the means to be specified in the
be invoked to exonerate from its responsibility a State which has Joint Contractual Plan. By inserting these evolving provisions in the
failed to implement a treaty. Treaty, the parties recognized the potential necessity to adapt the
Project. Consequently, the Treaty is not static, and is open to adapt
3. Impossibility of performance to emerging norms of international law. By means of Articles 15
and 19, new environmental norms can be incorporated in the Joint
The Court finds that it is not necessary to determine whether the Contractual Plan. The awareness of the vulnerability of the
term "object" in Article 61 of the Vienna Convention of 1969 on the environment and the recognition that environmental risks have to
Law of Treaties (which speaks of "permanent disappearance or be assessed on a continuous basis have become much stronger
destruction of an object indispensable for the execution of the in the years since the Treaty's conclusion. These new concerns
treaty" as a ground for terminating or withdrawing from it) can also have enhanced the relevance of Articles 15, 19 and 20. The Court
be understood to embrace a legal regime as in any event, even if recognizes that both Parties agree on the need to take
that were the case, it would have to conclude that in this instance environmental concerns seriously and to take the required
that regime had not definitively ceased to exist. The 1977 Treaty precautionary measures, but they fundamentally disagree on the
and in particular its Articles 15, 19 and 20 actually made available consequences this has for the joint Project. In such a case, third-
to the parties the necessary means to proceed at any time, by party involvement may be helpful and instrumental in finding a
negotiation, to the required readjustments between economic solution, provided each of the Parties is flexible in its position.
imperatives and ecological imperatives.
Finally, the Court is of the view that although it has found that both
4. Fundamental change of circumstances Hungary and Czechoslovakia failed to comply with their obligations
under the 1977 Treaty, this reciprocal wrongful conduct did not
In the Court's view, the prevalent political conditions were not so bring the Treaty to an end nor justify its termination.
closely linked to the object and purpose of the Treaty that they
constituted an essential basis of the consent of the parties and, in In the light of the conclusions it has reached above, the Court finds
changing, radically altered the extent of the obligations still to be that the notification of termination by Hungary of 19 May 1992 did
performed. The same holds good for the economic system in force not have the legal effect of terminating the 1977 Treaty and related
at the time of the conclusion of the 1977 Treaty. Nor does the Court instruments
consider that new developments in the state of environmental
knowledge and of environmental law can be said to have been 9. Fisheries Jurisdiction (United Kingdom v.
completely unforeseen. What is more, the formulation of Articles Iceland)(ICJ, 1973)
15, 19 and 20 is designed to accommodate change. The changed
circumstances advanced by Hungary are thus, in the Court's view, Facts.
not of such a nature, either individually or collectively, that their Iceland’s (D) claim to a 12-mile fisheries limit was recognized by
effect would radically transform the extent of the obligations still to the United Kingdom (P) in 1961 in return for Iceland’s (D)
be performed in order to accomplish the Project. agreement that any dispute concerning Icelandic fisheries
jurisdiction beyond the 12-mile limit be referred to the International
4. Material breach of the Treaty Court of Justice. An application was filed before the I.C.J. when
Iceland (D) proposed to extend its exclusive fisheries jurisdiction
Hungary's main argument for invoking a material breach of the from 12 to 50 miles around its shores in 1972. By postulating that
Treaty was the construction and putting into operation of Variant c. changes in circumstances since the 12-mile limit was now
The Court pointed out that it had already found that generally recognized was the ground upon which Iceland
Czechoslovakia violated the Treaty only when it diverted the
waters of the Danube into the bypass canal in October 1992. In (E) stood to argue that the agreement was no longer valid. Iceland
constructing the works which would lead to the putting into (D) also asserted that there would be a failure of consideration for
operation of Variant C, Czechoslovakia did not act unlawfully. In the 1961 agreement.
TO GOD BE THE GLORY
radically transforms the extent of the obligations undertaken,

Issue. this may, under certain conditions, afford the party affected a
In order that a change of circumstances may give rise to a ground ground for invoking the termination or suspension of the
for invoking the termination of a treaty, is it necessary that it has treaty. It would appear that in the present case there is a
resulted in a radical transformation of the extent of the obligation serious difference of views between the Parties as to whether
still to be performed? there have been any fundamental changes in fishing
techniques in the waters around Iceland. Such changes
Held. would, however, be relevant only for any eventual decision on
Yes. In order that a change of circumstances may give rise to the the merits. It cannot be said that the change of circumstances
premise calling for the termination of a treaty, it is necessary that it alleged by Iceland has modified the scope of the jurisdictional
has resulted in a radical transformation of the extent of the obligation agreed to in the 1961 Exchange of Notes. Moreover,
obligations still to be performed. The change of circumstances any question as to the jurisdiction of the Court, deriving from
alleged by Iceland (D) cannot be said to have transformed radically an alleged lapse of the obligation through changed
the extent of the jurisdictional obligation that was imposed in the circumstances, is for the Court to decide, by virtue of Article
1961 Exchange of Notes. 36, paragraph 6, of its Statute.
Recourse to the I.C.J. in the event of a dispute was the original 10. Gabcikovo-Nagymaros Project
agreement between the parties. The economy of Iceland (D) is (Hungary/Slovakia) (ICJ, 1997; see above)
dependent on fishing. The merit of Iceland (D) argument was not
reached by the Court in this case, however, but rather dealt with
11. Techt v. Hughes, 229 N. Y. 222
the jurisdictional issues.
In-depth notes: Techt’s (D) dad who was an American citizen, died intestate in New
Validity and duration of the 1961 Exchange of Notes (paras. 24-45 York. His daughter, Techt (D) had tied the knot with an Austro-
of the Judgment) Hungarian citizen and under federal law at the time; she had lost
her United States citizenship as a result. The New York law allowed
The Court next considers whether, as has been contended the Techt (D) to take property as inheritance if she were to be an alien
agreement embodied in the 1961 Exchange of Notes either was friend. When the court established this fact and that she could
initially void or has since ceased to operate. claim half the inheritance, her sister appealed on the ground that
she was entitled to the whole property because Techt (D) was an
In the above-mentioned letter of 29 May 1972 the Minister for alien enemy. The appeals court found Techt (D) to be an alien
Foreign Affairs of Iceland said that the 1961 Exchange of Notes enemy at this time because the U.S. was at war with Austria-
had taken place at a time when the British Royal Navy had been Hungary in 1919. Techt (D0 however based her argument on the
using force to oppose the 12-mile fishery limit. The Court, however, terms of the Treaty of 1848 between the U.S. and Austria nationals
notes that the agreement appears to have been freely negotiated of either state could take real property by descent.
on the basis of perfect equality and freedom of decision on both
sides. Issue. Must the court decide whether the provision involved in a
controversy is inconsistent with national policy or safety in a
In the same letter the Minister for Foreign Affairs of Iceland situation whereby a treaty between belligerents at war has not
expressed the view that "an undertaking for judicial settlement been denounced?
cannot be considered to be of a permanent nature" and the
Government of Iceland had indeed, in an aide-memoire of 31 Held. (Cardozo, J.) Yes. The court must decide whether the
August 1971, asserted that the object and purpose of the provision provision involved in a controversy is inconsistent with national
for recourse to judicial settlement had been fully achieved. The policy or safety in a situation whereby a treaty between belligerents
Court notes that the compromissory clause contains no express at war has not been denounced. If a treaty is in force, it implies that
provision regarding duration. In fact, the right of the United it is the supreme law of the land. There is nothing incompatible with
Kingdom to challenge before the Court any claim by Iceland to the policy of the government, safety of the nation, or the
extend its fisheries zone was subject to the assertion of such a maintenance of the war in the enforcement of this treaty, so as to
claim and would last so long as Iceland might seek to implement sustain Techt’s (D) title. Affirmed.
the 1959 Althing resolution.
The effect of war on the existing treaties of belligerents is an
In a statement to the Althing (the Parliament of Iceland) on 9 unsettled area of the law and this was noted by the court. Some
November 1971, the Prime Minister of Iceland alluded to have opined that treaties end ipso facto at time of war. But in this
changes regarding "legal opinion on fisheries jurisdiction". case, the court found that treaties end only to the extent that their
His argument appeared to be that as the compromissory execution is incompatible with the war.
clause was the price that Iceland had paid at the time for the
recognition by the United Kingdom of the 12-mile limit, the In-depth notes:
present general recognition of such a limit constituted a
change of legal circumstances that relieved Iceland of its This, I think, is the principle which must guide the judicial
commitment. The Court observes that, on the contrary, since department of the government when called upon to determine
Iceland has received benefits from those parts of the during the progress of a war whether a treaty shall be observed in
agreement already executed, it behoves it to comply with its the absence of some declaration by the political departments of the
side of the bargain. government that it has been suspended or annulled. A treaty has
The letter and statement just mentioned also drew attention to a twofold aspect. In its primary operation, it is a compact between
"the changed circumstances resulting from the ever- independent states. In its secondary operation, it is a source of
increasing exploitation of the fishery resources in the seas private rights for individuals within states. Granting that the
surrounding Iceland". It is, notes the Court, admitted in termination of the compact involves the termination of the
international law that if a fundamental change of the rights, it does not follow because there is a privilege to
circumstances which induced parties to accept a treaty rescind that the privilege has been exercised. The question is

TO GOD BE THE GLORY
not what states may do after war has supervened and this without
breach of their duty as members of the society of nations. The The Court held that there was no contravention of the Constitution
question is what courts are to presume that they have done. since Art. II or the Declaration of Principles and
“Where the department authorized to annul a voidable treaty shall State Policies is not self-executory. Secs. 10 and 12, Art. XII, on
deem it most conducive to national interest that it should no longer the other hand, the Court said:
continue to be obeyed and observed, no right can be incident to
the judiciary to declare it void in a single instance” President and Secs. 10 and 12 of Article XII, apart from merely laying down
senate may denounce the treaty, and thus terminate its life. general principles relating to the national economy and patrimony,
Congress may enact an inconsistent rule, which will control the should be read and understood in relation to the other sections in
action of the courts. The treaty of peace itself may set up new said article, especially Secs. 1 and 13 thereof which read:
relations, and terminate earlier compacts either tacitly and
expressly. The proposed treaties with Germany and Austria give Sec. 1. The goals of the national economy are a more
the victorious powers the privilege of choosing the treaties which equitable distribution of opportunities, income, and wealth; a
are to be kept in force or abrogated. But until some one of these sustained increase in the amount of goods and services
thigns is done, until some one of these events occurs, while war is produced by the nation for the benefit of the people; and an
still flagrant, and the will of the political departments of the expanding productivity as the key to raising the quality of life
government unrevealed, the courts, as I view their function, play a for all especially the underprivileged
humbler and more cautious part. It is not for them to denounce
treaties generally, en bloc. Their part it is, as one provision or The State shall promote industrialization and full employment
another is involved in some actual controversy before them, to based on sound agricultural development and agrarian reform,
determine whether, alone or by force of connection with an through industries that make full and efficient use of human and
inseparable scheme, the provision is inconsistent with the policy or natural resources, and which are competitive in both domestic and
safety of the nation in the emergency of war, and hence foreign markets. However, the State shall protect Filipino
presumably intended to be limited to times of peace. The mere fact enterprises against unfair foreign competition and trade practices.
that other portions of the treaty are suspended or even abrogated
is not conclusive. The treaty does not fall in its entirety unless it has In the pursuit of these goals, all sectors of the economy and all
the character of an indivisible act. To determine whether it has this regions of the country shall be given optimum opportunity to
character, it is not enough to consider its name or label. No general develop. . . .
formula suffices. We must consult in each case the nature and
purpose of the specific articles involved. xxx xxx xxx
See the following Articles: Sec. 13. The State shall pursue a trade policy that serves the
1. Section 2, Article II, 1987 Constitution general welfare and utilizes all forms and arrangements of
2. Section 21, Article VII, 1987 Constitution exchange on the basis of equality and reciprocity.
3. Section 5(2a), Article VIII, 1987 Constitution
4. Section 18(7), Article VIII, 1987 Constitution The Court further stated that the WTO comes with safeguards to
5. Section 25, Article XVIII, 1987 Constitution protect weaker economies and that the Constitution does not rule
6. EO 459 out foreign competition.
12. Tañada vs. Angara, G.R. No. 118295, May 2, 1997 The WTO Agreement and Legislative Power
The court held that:
Facts:
Petitioner sought to have the agreement to join the World Trade The point is that, as shown by the foregoing treaties, a portion of
Organization (WTO) declared unconstitutional on the grounds that: sovereignty may be waived without violating the Constitution,
“(1) that the WTO requires the Philippines .to place nationals and based on the rationale that the Philippines “adopts the generally
products of member-countries on the same footing as Filipinos and accepted principles of international law as part of the law of the
local products. and (2) that the WTO .intrudes, limits and/or land and adheres to the policy of . . . cooperation and amity with all
impairs. the constitutional powers of both Congress and the nations.”
Supreme Court, the instant petition before this Court assails the
WTO Agreement for violating the mandate of the 1987 Constitution The WTO Agreement and Judicial Power
to .develop a self-reliant and independent national economy A portion of the decision reads:
effectively controlled by Filipinos . . . (to) give preference to
qualified Filipinos (and to) promote the preferential use of Filipino By and large, the arguments adduced in connection with our
labor, domestic materials and locally produced goods..” disposition of the third issue — derogation of legislative power —
will apply to this fourth issue also. Suffice it to say that the
Issues: reciprocity clause more than justifies such intrusion, if any actually
Whether or not the provisions of the Agreement contravene Sec. exists. Besides, Article 34 does not contain an unreasonable
19, Art II and Secs. 10 and 12, Art. XII, of the Philippine burden, consistent as it is with due process and the concept of
Constitution. adversarial dispute settlement inherent in our judicial system.
Whether or not the Provisions unduly impair or interfere with
Legislative Power. So too, since the Philippine is a signatory to most international
conventions on patents, trademarks and copyrights, the
Whether or not the Provisions unduly impair or interfere with adjustment in legislation and rules of procedure will not be
Judicial Power. substantial.
Whether or not the Concurrence of the Senate with the WTO
Agreement and its Annexes sufficient and/or valid. Validity of the Concurrence of the
Held: Senate with the WTO Agreement and
its Annexes Excerpts from the decision
Contravention of the Constitution read:
TO GOD BE THE GLORY
ISSUE:
Petitioners allege that the Senate concurrence in the WTO Who has the power to ratify the Rome Statute?
Agreement and its annexes — but not in the other documents
referred to in the Final Act, namely the Ministerial Declaration HELD:
and Decisions and the Understanding on Commitments in The President, being the head of state, is regarded as the sole
Financial Services — is defective and insufficient and thus organ and authority in external relations and is the county’s sole
constitutes abuse of discretion. They submit that such representative with foreign nations. As the chief architect of foreign
concurrence in the WTO Agreement alone is flawed because policy, the President acts as the country’s mouthpiece with respect
it is in effect a rejection of the Final Act, which in turn was the to international affairs. Hence, the President is vested with the
document signed by Secretary Navarro, in representation of authority to deal with foreign states and governments, extend or
the Republic upon authority of the President. They contend withhold recognition, maintain diplomatic relations, enter into
that the second letter of the President to the Senate which treaties, and otherwise transact the business of foreign relations.
enumerated what constitutes the Final Act should have been
the subject of concurrence of the Senate The role of the Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the ratification.
“A final act, sometimes called protocol de cloture, is an instrument
which records the winding up of the proceedings of a diplomatic Thus, this petition is DISMISSED. This Court has no jurisdiction
conference and usually includes a reproduction of the texts of over actions seeking to enjoin the President in the performance of
treaties, conventions, recommendations and other acts agreed his official duties.
upon and signed by the plenipotentiaries attending the
conference.” It is not the treaty itself. It is rather a summary of the 14. Reyes vs. Bagatsing, 125 SCRA 553 (supra)
proceedings of a protracted conference which may have taken
place over several years. The text of the “Final Act Embodying the Held:
Results of the Uruguay Round of Multilateral Trade Negotiations” The court set aside the denial or the modification of the permit
is contained in just one page in Vol. I of the 36-volume Uruguay sought and order the respondent official to grant it. The choice of
Round of Multilateral Trade Negotiations. By signing said Final Act, Luneta and U.S. Embassy for a public rally cannot legally objected
Secretary Navarro as representative of the Republic of the to in the absence of clear and present danger to life or property of
Philippines undertook: the embassy. The Philippines, being a signatory of Vienna
Conventions which calls for the protection of the premises of a
(a) to submit, as appropriate, the WTO Agreement for the diplomatic mission, adopts the generally accepted principles of
consideration of their respective competent authorities with a view international law as part of the law of the land as cited in Article II,
to seeking approval of the Agreement in accordance with their Section 3 of the Constitution
procedures; and
15. La Chemise Lacoste vs. Fernandez, 129 SCRA
(b) to adopt the Ministerial Declarations and Decisions.
373
The assailed Senate Resolution No. 97 expressed concurrence in
exactly what the Final Act required from its signatories, namely, Facts:
concurrence of the Senate in the WTO Agreement. La chemise Lacoste is a French corporation and the actual owner
of the trademarks “Lacoste,”
The Ministerial Declarations and Decisions were deemed adopted
without need for ratification. They were approved by the ministers “Chemise Lacoste,” “Crocodile Device” and a composite mark
by virtue of Article XXV: 1 of GATT which provides that consisting of the word “Lacoste” and a representation of a
representatives of the members can meet “to give effect to those crocodile/alligator, used on clothings and other goods sold in many
provisions of this Agreement which invoke joint action, and parts of the world and which has been marketed in the Philippines
generally with a view to facilitating the operation and furthering the (notably by Rustans) since 1964. In 1975 and 1977, Hemandas Q.
objectives of this Agreement.” [Footnotes Omitted] Co. was issued certificate of registration for the trademark
“Chemise Lacoste and Q Crocodile Device” both in the
Disposition: Petition was denied. supplemental and Principal Registry. In 1980, La Chemise Lacoste
SA filed for the registration of the “Crocodile device” and “Lacoste”.
13. Pimentel vs. Romulo, G.R. No. 158088, July 6, Games and Garments (Gobindram Hemandas, assignee of
Hemandas Q.Co.) opposed the registration of “Lacoste.”
2005
In 1983, La Chemise Lacoste filed with the NBI a letter-complaint
Facts: alleging acts of unfair competition committed by Hemandas and
On July 17, 1998, the Rome Statute was opened for signature at requesting the agency’s assistance. A search warrant was issued
its headquarter in New York. On December 28, 2000, three days by the trial court. Various goods and articles were seized upon the
before its deadline for signing, the Philippines through its Charge execution of the warrants. Hemandas filed motion to quash the
d’ Affairs, Enrique A. Manalo signed the Statute. By its provision, warrants, which the court granted. The search warrants were
however, it is requiring that it be ratified by the accepting states. recalled, and the goods ordered to be returned. La Chemise
Lacoste filed a petition for certiorari.
Senator Aquilino Pimentel, file this petition to compel the Hon.
Alberto Romulo (Executive Secretary) and Hon. Blas Ople Issue:
(Department of Foreign Affairs) – respondents in this case – to Whether the proceedings before the patent office is a prejudicial
transmit the signed document to the Senate for ratification. question that need to be resolved before the criminal action for
unfair competition may be pursued.
Hon. Alberto Romulo and Hon. Blas Ople, on the other hand, argue
that they as representative of the Executive Department have no Held:
duty to transmit the Rome Statute to the Senate for concurrence.

TO GOD BE THE GLORY
No. The proceedings pending before the Patent Office do not reminds the Director of Patents of his legal duty to obey both law
partake of the nature of a prejudicial question which must first be and treaty. It must also be obeyed.
definitely resolved. The case which suspends the criminal action
must be a civil case, not a mere administrative case, which is 16. Ichong vs. Hernandez, 101 Phil. 1156
determinative of the innocence or guilt of the accused. The issue
whether a trademark used is different from another’s trademark is Facts:
a matter of defense and will be better resolved in the criminal Lao Ichong is a Chinese businessman who entered the country to
proceedings before a court of justice instead of raising it as a take advantage of business opportunities herein abound (then) –
preliminary matter in an administrative proceeding. particularly in the retail business. For some time he and his fellow
Chinese businessmen enjoyed a “monopoly” in the local market in
Inasmuch as the goodwill and reputation of La Chemise Lacoste Pasay. Until in June 1954 when Congress passed the RA 1180 or
products date back even before 1964, Hemandas cannot be the Retail Trade Nationalization Act the purpose of which is to
allowed to continue the trademark “Lacoste” for the reason that he reserve to Filipinos the right to engage in the retail business.
was the first registrant in the Supplemental Register of a trademark Ichong then petitioned for the nullification of the said Act on the
used in international commerce. Registration in the Supplemental ground that it contravened several treaties concluded by the RP
Register cannot be given a posture as if the registration is in the which, according to him, violates the equal protection clause
Principal Register. It must be noted that one may be declared an (pacta sund servanda). He said that as a Chinese businessman
unfair competitor even if his competing trademark is registered. La engaged in the business here in the country who helps in the
Chemise Lacoste is world renowned mark, and by virtue of the 20 income generation of the country he should be given equal
November 1980 Memorandum of the Minister of Trade to the opportunity.
director of patents in compliance with the Paris Convention for the
protection of industrial property, effectively cancels the registration
ISSUE:
of contrary claimants to the enumerated marks, which include
Whether or not a law may invalidate or supersede treaties or
“Lacoste.”
generally accepted principles.
In-depth notes:
HELD:
Yes, a law may supersede a treaty or a generally accepted
SC: In upholding the right of the petitioner to maintain the present
principle. In this case, there is no conflict at all between the raised
suit before our courts for unfair competition or infringement of
generally accepted principle and with RA 1180. The equal
trademarks of a foreign corporation, we are moreover recognizing
protection of the law clause “does not demand absolute equality
our duties and the rights of foreign states under the Paris
amongst residents; it merely requires that all persons shall be
Convention for the Protection of Industrial Property to which the
treated alike, under like circumstances and conditions both as to
Philippines and France are parties. We are simply interpreting and
privileges conferred and liabilities enforced”; and, that the equal
enforcing a solemn international commitment of the Philippines
protection clause “is not infringed by legislation which applies only
embodied in a multilateral treaty to which we are a party and which
to those persons falling within a specified class, if it applies alike to
we entered into because it is in our national interest to do so.
all persons within such class, and reasonable grounds exist for
making a distinction between those who fall within such class and
The International Convention is essentially a compact between the
those who do not.”
various member countries to accord in their own countries to
citizens of the other contracting parties trademark and other rights
For the sake of argument, even if it would be assumed that a treaty
comparable to those accorded their own citizens by their domestic
would be in conflict with a statute then the statute must be upheld
law. The underlying principle is that foreign nationals should be
because it represented an exercise of the police power which,
given the same treatment in each of the member countries as that
being inherent could not be bargained away or surrendered
country makes available to its own citizens. In addition, the
through the medium of a treaty. Hence, Ichong can no longer
Convention sought to create uniformity in certain respects by
assert his right to operate his market stalls in the Pasay city market.
obligating each member nation 'to assure to nationals of countries
of the Union an effective protection against unfair competition.'
17. Bayan vs. Executive Secretary, G.R. No. 138570,
The Convention is not premised upon the Idea that the trade-mark October 10, 2000
and related laws of each member nation shall be given extra-
territorial application, but on exactly the converse principle that Facts:
each nation's law shall have only territorial application. Thus a The United States panel met with the Philippine panel to
foreign national of a member nation using his trademark in discussed, among others, the possible elements of the Visiting
commerce in the United States is accorded extensive protection Forces Agreement (VFA). This resulted to a series of conferences
here against infringement and other types of unfair competition by and negotiations which culminated on January 12 and 13, 1998.
virtue of United States membership in the Convention. But that Thereafter, President Fidel Ramos approved the VFA, which was
protection has its source in, and is subject to the limitations of, respectively signed by Secretary Siazon and United States
American law, not the law of the foreign national's own country xxx Ambassador Thomas Hubbard.
The memorandum is a clear manifestation of our avowed Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on
adherence to a policy of cooperation and amity with all nations. It May 27, 1999, the senate approved it by (2/3) votes.
is not, as wrongly alleged by the private respondent, a personal
policy of Minister Luis Villafuerte which expires once he leaves the Cause of Action:
Ministry of Trade. For a treaty or convention is not a mere moral
obligation to be enforced or not at the whims of an incumbent head Petitioners, among others, assert that Sec. 25, Art XVIII of the
of a Ministry. It creates a legally binding obligation on the parties 1987 constitution is applicable and not Section 21, Article VII.
founded on the generally accepted principle of international law of
pacta sunt servanda which has been adopted as part of the law Following the argument of the petitioner, under they provision
of our land. (Constitution, Art. II, Sec. 3). The memorandum cited, the “foreign military bases, troops, or facilities” may be
TO GOD BE THE GLORY
allowed in the Philippines unless the following conditions are the emergency, all organized mil forces of the Commonwealth. (His
sufficiently met: order was published here by Proc No 740 of Pres Quezon on Aug
a) it must be a treaty, 10, 1941)
b) it must be duly concurred in by the senate, ratified by a majority • October 1941: By 2 special orders, MacArthur, Commanding
of the votes cast in a national referendum held for that purpose if Gen of USAFFE, placed under his command all the RP Army units
so required by congress, and including Phil Constabulary.
c) recognized as such by the other contracting state.
• Thus, US Congress provided in its Appropriation Act of Dec 17,
Respondents, on the other hand, argue that Section 21 Article VII 1941 (Public Law No. 353): “For all expenses necessary for the
is applicable so that, what is requires for such treaty to be valid and mobilization, operation & maintenance of the RP Army, including
effective is the concurrence in by at least two-thirds of all the expenses connected w/ calling into the service RP mil
members of the senate. forces…$269,000.00; to remain available ‘til June 30, 1943, w/c
shall be available for payment to the Commonwealth upon its
ISSUE: written request, either in advance of or in reimbursement for all or
Is the VFA governed by the provisions of Section 21, Art VII or of any part of the estimated or actual costs, as authorized by the
Section 25, Article XVIII of the Constitution? USAFFE Commanding Gen, of the necessary expenses for the
purposes aforesaid.”
HELD:
Section 25, Article XVIII, which specifically deals with treaties • Pursuant to the power reserved to him under Public Law 353,
involving foreign military bases, troops or facilities should apply in Roosevelt issued EO 9011: “2(a) Necessary expenditures from
the instant case. To a certain extent and in a limited sense, funds in the Phil Treasury for the purposes authorized by Public
however, the provisions of section 21, Article VII will find Law 353, will be made by disbursing officers of the RP Army on the
applicability with regard to the issue and for the sole purpose of approval of authority of the Commandign General, USAFFE, &
determining the number of votes required to obtain the valid such purposes as he may deem proper…”
concurrence of the senate.
• P570,863,000.00 was transferred directly to the AFP by means
The Constitution, makes no distinction between “transient” and of vouchers w/c stated “Advance of Funds under Public Law 353 &
“permanent.” We find nothing in section 25, Article XVIII that EO 9011” This was used mostly to discharge in RP the monetary
requires foreign troops or facilities to be stationed or placed obligations assumed by the US as a result of the induction of the
permanently in the Philippines. AFP into the US Army, & its operations beginning in 1941.
It is inconsequential whether the United States treats the VFA only • There remained unexpended & uncommitted $35M in the
as an executive agreement because, under international law, an possession of the AFP as of Dec 31, 1949. Bec the RP Govt then
executive agreement is as binding as a treaty. badly needed funds, Pres Quirino, through CB Gov Cuaderno,
proposed to US officials the retention of the $35M as a loan, & for
18. USAFFE Veterans Association vs. Treasurer of its repayment in 10 annual installments. This was the Romulo-
the Phils., 105 Phil. 1030 Snyder Agreement, signed in Washington on Nov 6, 1950 by RP
Foreign Affairs Sec Romulo, & US Sec of Treasury, John Snyder.
• Romulo-Snyder Agreement (1950): RP Govt undertook to return
• PRESENT ACTION: Usaffe’s arguments – 1) the money
to the US Govt in 10 annual installments, a total of about $35M
delivered by the US to the AFP were straight payments for mil
advanced by the US to, but unexpended by, the Nat’l Defense
services; ownership thus vested in RP Govt upon delivery, &
Forces of the RP.
consequently, there was nothing to return, nothing to consider as
a loan; 2) the Agreement was void bec there was no loan to be
• Oct 1954: The Usaffe Veterans Associations Inc prayed in its
repaid & bec it was not binding on the RP Govt for lack of authority
complaint before the CFI that said Agreement be annulled; that
of the officers who concluded it.
payments thereunder be declared illegal; & that defendants as
officers of RP be restrained from disbursing any funds in the Nat’l
ISSUES
Treasury in pursuance of said Agreement.
Basic Issue: Validity of the Romulo-Snyder Agreement – Court
can’t pass judgment
• Usaffe Veterans further asked that the moneys available,
1. WON there is obligation to repay - YES
instead of being remitted to the US, should be turned over to the
2. WON the officers who promised to repay had authority to bind
Finance Service of the AFP for the payment of all pending claims
this Govt – YES
of the veterans represented by the plaintiff
RATIO:
• 3 PROPOSITIONS OF PLAINTIFF IN COMPLAINT: 1) that the
1. YES
funds to be “returned” under the Agreement were funds
• Note that the $269M appropriated in Public Law 353 (see 8th
appropriated by the US Congress for the RP Army, actually
bullet) expressly said that the money is to be handed to the RP
delivered to the RP Govt & actually owned by the said
Govt either in advance of or in reimbursement thereof.
Government; 2) that U.S Secretary Snyder of the Treasury, had no
authority to retake such funds from the RP Govt; 3) The RP Foreign
• In any system of accounting, advances of funds for expenditures
Secretary Carlos P. Romulo had no authority to return or promise
contemplate disbursements to be reported, & credited if approved,
to return the aforesaid sums of money through the Agreement.
against such advances, the unexpended sums to be returned later.
Congressional law itself required accounting “in the manner
• The court eventually upheld the validity of the Agreement.
prescribed by US Pres - & said Pres in EO 9011, outlined the
Plaintiff appealed.
procedure whereby advanced funds shall be accounted for.
• July 26, 1941: Foreseeing the War in the Pacific, Pres Roosevelt,
called into the service of the US Armed Forces, for the duration of
TO GOD BE THE GLORY
• It also requires as a condition sine qua non that all expenditures • even granting there is no legislative authorization, the
shall first be approved by the USAFFE Agreement was legally and validly entered into to conform
nd
Commanding Gen. the 2 category, namely as agreements entered into
purely as executive acts without legal authorization which
• These ideas of “funds advanced” to meet expenditures of the Phil usually includes monetary agreements
Army as may be approved by the USAFFE Comm-Gen, in
connection w/ the accounting requirement, evidently contradict • The Agreement was not submitted to the US Senate either. But
appellant’s thesis that the moneys represented straight payments the Phil Senate’s Resolution No. 15 practically admits the validity
to RP Govt for its armed services, & passed into the absolute & binding force of such Agreement.
control of such Govt
• Further, the acts of Congress appropriating funds for the yearly
• Instead of returning such amount into one lump sum, our Exec installments necessary to comply w/ such Agreement constitute a
Dept arranged for its repayment in 10 annual installments. Prima ratification thereof, W/C PLACES THE QUESTION OF VALIDITY
facie such arrangement should raise no valid objection, given the OUT OF THE COURT’S REACH, NO CONST’L PRINCIPLE
obligation to return. HAVING BEEN INVOKED TO RESTRICT CONGRESS’
PLENARY POEWR TO
2. YES (They have authority to bind Govt even w/o Senate
concurrence) APPROPRIATE FUNDS – LOAN OR NO LOAN.
• There is no doubt Pres Quirino approved the negotiations. And
he had the power to contract budgetary loans under RA 213, HELD: Plaintiff failed to make a clear case for the relief demanded.
amending RA 16. Petition DENIED.
• The most impt argument, however, rests on the lack of ratification 19. Bayan Muna vs. Alberto Romulo, G.R. 159618,
of the Agreement by RP Senate to make it binding on the Govt. Feb. 1, 2011
• The ff explanation of the defendant was considered persuasive
Facts:
by the Court…
In 2000, the RP, through Charge d’Affaires Enrique A. Manalo,
signed the Rome Statute which, by its terms, is “subject to
• The agreement is not a “treaty” as that term is used in
ratification, acceptance or approval” by the signatory states.
CONSTI. However, a treaty is not the only form that an
international agreement may assume. For the grant of
In 2003, via Exchange of Notes with the US government, the RP,
treatymaking power to the Executive and the Senate does
represented by then DFA Secretary Ople, finalized a non-
not exhaust thepower of the government over
surrender agreement which aimed to protect certain persons of the
international relations
RP and US from frivolous and harassment suits that might be
brought against them in international tribunals.
• Executive agreements may be entered into with other
states and are effective even without the concurrence of
Petitioner imputes grave abuse of discretion to respondents in
the Senate
concluding and ratifying the Agreement and prays that it be struck
down as unconstitutional, or at least declared as without force and
• In international law, there is no difference between
effect.
treaties and executive agreements in their binding effect
upon states concerned as long as the negotiating
ISSUE: 
functionaries have remained within their powers
Whether the Respondents abused their discretion amounting to
• The distinction between executive agreements and lack or excess of jurisdiction for concluding the RP-US Non
treaties is purely a constitutional one and has no Surrender Agreement in contravention of the Rome Statute.
international significance.
Whether the agreement is valid, binding and effective without the
concurrence by at least 2/3 of all the members of the Senate.
• Altman v US: An international compact negotiated
between the representatives of 2 sovereign nations and
HELD:
made in the name or behalf of the contracting parties and
dealing with important commercial relations between the The petition is bereft of merit.
2 countries, is a treaty both internationally although as an
executive agreement, it is not technically a treaty INTERNATIONAL LAW: Rome Statute First issue
requiring the advice and consent of the Senate. 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
• 2 classes of Exec Agreements: (1) agreements made
complementarity underpins the creation of the ICC. According to
purely as executive acts affecting external relations and
Art. 1 of the Statute, the jurisdiction of the ICC is to “be
independent of or without legislative authorization which
complementary to national criminal jurisdictions [of the signatory
may be termed as presidential agreements; (2)
agreements entered into in pursuance of acts of states].” the Rome Statute expressly recognizes the primary
Congress, which have been designated as jurisdiction of states, like the RP, over serious crimes committed
Congressional-Executive Agreements within their respective borders, the complementary jurisdiction of
the ICC coming into play only when the signatory states are
unwilling or unable to prosecute.
• the Romulo-Snyder Agreement may fall under any of
these 2 classes for on September 18, 1946, RP Congress
Also, under international law, there is a considerable difference
authorized the RP Pres to obtain such loans or incur such
between a State-Party and a signatory to a treaty. Under the
indebtedness from the US
Vienna Convention on the Law of Treaties, a signatory state is only

TO GOD BE THE GLORY
obliged to refrain from acts which would defeat the object and a violation of the International Agreement on protection of
purpose of a treaty. The Philippines is only a signatory to the Rome trademarks.
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 Held: 
object and purpose of the Rome Statute. Any argument obliging There is no proof whatsoever that any of plaintiffs products which
the Philippines to follow any provision in the treaty would be they seek to protect from any adverse effect of the trademark
premature. And even assuming that the Philippines is a State- applied for by defendant, is in actual use and available for
Party, the Rome Statute still recognizes the primacy of commercial purposes anywhere in the Philippines.To sustain a
international agreements entered into between States, even when successful prosecution of their suit for infringement, petitioners, as
one of the States is not a State-Party to the Rome Statute. foreigncorporations not engaged in local commerce, rely on
Section 21-A of the Trademark Law readingas follows:SECTION
CONSTITUTIONAL LAW: 2/3 concurrence Second issue 21-A. Any foreign corporation or juristic person to which a mark or
The right of the Executive to enter into binding agreements without trade-name has beenregistered or assigned under this act may
the necessity of subsequent Congressional approval has been bring an action hereunder for infringement, for unfair competition,
confirmed by long usage. From the earliest days of our history, we or false designation of origin and false description, whether or not
have entered executive agreements covering such subjects as it has been licensedto do business in the Philippines under Act
commercial and consular relations, most favored-nation rights, Numbered Fourteen hundred and fiftynine, asamended, otherwise
patent rights, trademark and copyright protection, postal and known as the Corporation Law, at the time it brings complaint:
navigation arrangements and the settlement of claims. The validity Provided, Thatthe country of which the said foreign corporation or
of these has never been seriously questioned by our courts. juristic person is a citizen or in which it isdomiciled, by treaty,
convention or law, grants a similar privilege to corporate or juristic
Executive agreements may be validly entered into without such persons of the Philippines. (As inserted by Sec. 7 of Republic Act
concurrence. As the President wields vast powers and influence, No. 638.) to drive home the point that theyare not precluded from
her conduct in the external affairs of the nation is, as Bayan would initiating a cause of action in the Philippines on account of the
put it, “executive altogether.” The right of the President to enter into principalperception that another entity is pirating their symbol
or ratify binding executive agreements has been confirmed by long without any lawful authority to do so.
practice.
A fundamental principle of Philippine Trademark Law is that actual
D. International law and Municipal law use in commerce in the Philippines is a prerequisite to the
acquisition of ownership over a trademark or a tradename.
Adoption alone of a trademark would not give exclusive right
Sec 2, Art II, 1987 Constitution
thereto. Such right grows out of their actual use. Adoption is not
The Philippines renounces war as an instrument of national policy,
use. One may make advertisements, issue circulars, give out price
adopts the generally accepted principles of international law as
lists on certain goods; but these alone would not give exclusive
part of the law of the land and adheres to the policy of peace,
right of use. For trademark is a creation of use.
equality, justice, freedom, cooperation, and amity with all nations.
The records show that the petitioner has never conducted any
1. Philip Morris vs. Court of Appeals, GR 91332, business in the Philippines. It has never promoted its tradename
July 16, 1993 or trademark in the Philippines. It is unknown to Filipino except the
very few who may have noticed it while travelling abroad. It has
Facts: never paid a single centavo of tax to the Philippine government.
Petitioners Philip Morris, Inc., Benson and Hedges (Canada), Inc., Under the law, it has no right to the remedy it seeks.
and Fabriques of Tabac Reunies, S.A., are ascribing whimsical
exercise of the faculty conferred upon magistrates by Section 6, In other words, petitioners may have the capacity to sue for
Rule 58 of the Revised Rules of Court when respondent Court of infringement irrespective of lack of business activity in the
Appeals lifted the writ of preliminary injunction it earlier had issued Philippines on account of Section 21-A of the Trademark Law but
against Fortune Tobacco Corporation, herein private respondent, the question whether they have an exclusive right over their symbol
from manufacturing and selling "MARK" cigarettes in the local as to justify issuance of the controversial writ will depend on actual
market. Banking on the thesis that petitioners' respective symbols use of their trademarks in the Philippines in line with Sections 2
"MARK VII", 'MARK TEN", and "MARK", also for cigarettes, must and 2-A of the same law. It is thus incongruous for petitioners to
be protected against unauthorized appropriation, Philip Morris, claim that when a foreign corporation not licensed to do business
Incorporated is a corporation organized under the laws of the State in Philippines files a complaint for infringement, the entity need not
of Virginia, United States of America, and does business at 100 be actually using its trademark in commerce in the Philippines.
Park Avenue, New York, New York, United States of America. The
two other plaintiff foreign corporations, which are wholly-owned In view of the explicit representation of petitioners in the complaint
subsidiaries of Philip Morris, Inc., are similarly not doing business that they are not engaged in business in the Philippines, it
in the Philippines but are suing on an isolated transaction. inevitably follows that no conceivable damage can be suffered by
Plaintiffs-petitioners asserted that defendant Fortune Tobacco them not to mention the foremost consideration heretofore
Corporation has no right to manufacture and sell cigarettes bearing discussed on the absence of their "right" to be protected.
the allegedly identical or confusingly similar trademark 'Plaintiffs
admit in the complaint that "xxx they are not doing business in the Following universal acquiescence and comity, our municipal law
Philippines and are suing on an isolated transaction xxx'. This on trademarks regarding the requirement of actual use in the
simply means that they are not engaged in the sale, manufacture, Philippines must subordinate an international agreement inasmuch
importation, exportation and advertisement of their cigarette as the apparent clash is being decided by a municipal tribunal
products in the Philippines. (Mortensen vs. Peters, Great Britain, High Court of Judiciary of
Scotland, 1906, 8 Sessions 93; Paras, International Law and World
Issues:  Organization, 1971 Ed., p. 20). Withal, the fact that international
Whether or not there has been an invasion o plaintiffs' right of law has been made part of the law of the land does not by any
property to such trademark or tradename. Whether or not there is means imply the primacy of international law over national law in
TO GOD BE THE GLORY
the municipal sphere. Under the doctrine of incorporation as

applied in most countries, rules of international law are given a “In a situation, however, where the conflict is irreconcilable and a
standing equal, not superior, to national legislative enactments. choice has to be made between a rule of international law and a
municipal law, jurisprudence dictates that municipal law should be
2. Sec. of Justice vs. Lantion, GR 139465, January upheld by the municipal courts, for the reason that such courts are
18, 2000 organs of municipal law and are accordingly bound by it in all
circumstances.
Facts:
“The fact that international law has been made part of the law of
Secretary Of Justice Franklin Drilon, representing the Government
the land does not pertain to or imply the primacy of international
of the Republic of the Philippines, signed in Manila the “extradition
law over national or municipal law in the municipal sphere. The
Treaty Between the Government of the Philippines and the
doctrine of incorporation, as applied in most countries, decrees that
Government of the U.S.A. The Philippine Senate ratified the said
rules of international law are given equal standing with, but are not
Treaty. On June 18, 1999, the Department of Justice received
superior to, national legislative enactments. Accordingly, the
from the Department of Foreign Affairs U.S Note Verbale No. 0522 principle lex posterior derogate priori takes effect – a treaty may
containing a request for the extradition of private respondent Mark
repeal a statute and a statute may repeal a treaty. In states where
Jiminez to the United States.
the Constitution is the highest law of the land, such as the Republic
of the Philippines, both statutes and treaties may be invalidated if
On the same day petitioner designate and authorizing a panel of they are in conflict with the constitution.
attorneys to take charge of and to handle the case. Pending
evaluation of the aforestated extradition documents, Mark Jiminez
3. Govt of USA vs. Purganan, GR 148571, Dec. 17,
through counsel, wrote a letter to Justice Secretary requesting
copies of the official extradition request from the U.S Government 2002
and that he be given ample time to comment on the request after
he shall have received copies of the requested papers but the Petition is a sequel to the case “Sec. of Justice v. Hon. Lantion”.
petitioner denied the request for the consistency of Article 7 of the The Secretary was ordered to furnish Mr. Jimenez copies of the
RP-US Extradition Treaty stated in Article 7 that the Philippine extradition request and its supporting papers and to grant the latter
Government must present the interests of the United States in any a reasonable period within which to file a comment and supporting
proceedings arising out of a request for extradition. evidence. But, on motion for reconsideration by the Sec. of Justice,
it reversed its decision but held that the Mr. Jimenez was bereft of
ISSUE: the right to notice and hearing during the evaluation stage of the
Whether or not to uphold a citizen’s basic due process rights or the extradition process. On May 18, 2001, the Government of the USA,
governments ironclad duties under a treaty. represented by the Philippine Department of Justice, filed with the
RTC, the Petition for Extradition praying for the issuance of an
RULING: order for his “immediate arrest” pursuant to Sec. 6 of PD 1069 in
Petition dismissed. The human rights of person, whether citizen or order to prevent the flight of Jimenez. Before the RTC could act on
alien, and the rights of the accused guaranteed in our Constitution the petition, Mr. Jimenez filed before it an “Urgent
should take precedence over treaty rights claimed by a contracting Manifestation/Ex-Parte Motion” praying for his application for an
state. The duties of the government to the individual deserve arrest warrant be set for hearing. After the hearing, as required by
preferential consideration when they collide with its treaty the court, Mr. Jimenez submitted his Memorandum. Therein
obligations to the government of another state. This is so although seeking an alternative prayer that in case a warrant should issue,
we recognize treaties as a source of binding obligations under he be allowed to post bail in the amount of P100,000. The court
generally accepted principles of international law incorporated in ordered the issuance of a warrant for his arrest and fixing bail for
our Constitution as part of the law of the land. his temporary liberty at P1M in cash. After he had surrendered his
passport and posted the required cash bond, Jimenez was granted
The doctrine of incorporation is applied whenever municipal provisional liberty.
tribunals are confronted with situation in which there appears to be
a conflict between a rule of international law and the provision of Government of the USA filed a petition for Certiorari under Rule 65
the constitution or statute of the local state. of the Rules of Court to set aside the order for the issuance of a
warrant for his arrest and fixing bail for his temporary liberty at P1M
Petitioner (Secretary of Justice) is ordered to furnish Mark Jimenez in cash which the court deems best to take cognizance as there is
copies of the extradition request and its supporting papers, and to still no local jurisprudence to guide lower court.
grant him (Mark Jimenez) a reasonable period within which to file
his comment with supporting evidence. ISSUES: 
i. Whether or NOT Hon. Purganan acted without or in
“Under the Doctrine of Incorporation, rules of international law form excess of jurisdiction or with grave abuse of
part of the law of the land and no further legislative action is needed discretion amounting to lack or excess of jurisdiction
to make such rules applicable in the domestic sphere. in adopting a procedure of first hearing a potential
extraditee before issuing an arrest warrant under
“The doctrine of incorporation is applied whenever municipal Section 6 of PD No. 1069 
tribunals are confronted with situations in which there appears to ii. Whether or NOT Hon. Purganan acted without or in
be a conflict between a rule of international law and the provisions excess of jurisdiction or with grave abuse of
of the constitution or statute of the local state. discretion amounting to lack or excess of jurisdiction
in granting the prayer for bail iii. Whether or NOT
“Efforts should first be exerted to harmonize them, so as to give there is a violation of due process
effect to both since it is to be presumed that municipal law was
enacted with proper regard for the generally accepted principles of HELD:
international law in observance of the incorporation clause in the Petition is GRANTED. Bail bond posted is CANCELLED. Regional
above cited constitutional provision. Trial Court of Manila is directed to conduct the extradition

TO GOD BE THE GLORY
proceedings before it. offenses inherent in or directly connected with invasion.”
i. YES. That the offenses for which Jimenez is sought to be extradited are
By using the phrase “if it appears,” the law further conveys that bailable in the United States is not an argument to grant him one
accuracy is not as important as speed at such early stage. From in the present case. Extradition proceedings are separate and
the knowledge and the material then available to it, the court is distinct from the trial for the offenses for which he is charged. He
expected merely to get a good first impression or a prima facie should apply for bail before the courts trying the criminal cases
finding sufficient to make a speedy initial determination as regards against him, not before the extradition court.
the arrest and detention of the accused. The prima facie existence
of probable cause for hearing the petition and, a priori, for issuing Exceptions to the “No Bail” Rule Bail is not a matter of right in
an arrest warrant was already evident from the Petition itself and extradition cases. It is subject to judicial discretion in the context of
its supporting documents. Hence, after having already determined the peculiar facts of each case. Bail may be applied for and granted
therefrom that a prima facie finding did exist, respondent judge as an exception, only upon a clear and convincing showing 1) that,
gravely abused his discretion when he set the matter for hearing once granted bail, the applicant will not be a flight risk or a danger
upon motion of Jimenez. The silence of the Law and the Treaty to the community; and 2) that there exist special, humanitarian and
leans to the more reasonable interpretation that there is no compelling circumstances including, as a matter of reciprocity,
intention to punctuate with a hearing every little step in the entire those cited by the highest court in the requesting state when it
proceedings. It also bears emphasizing at this point that extradition grants provisional liberty in extradition cases therein
proceedings are summary in nature. Sending to persons sought to
be extradited a notice of the request for their arrest and setting it Since this exception has no express or specific statutory basis, and
for hearing at some future date would give them ample opportunity since it is derived essentially from general principles of justice and
to prepare and execute an escape which neither the Treaty nor the fairness, the applicant bears the burden of proving the above two-
Law could have intended. tiered requirement with clarity, precision and emphatic
forcefulness.
Even Section 2 of Article III of our Constitution, which is invoked by
Jimenez, does not require a notice or a hearing before the It must be noted that even before private respondent ran for and
issuance of a warrant of arrest. To determine probable cause for won a congressional seat in Manila, it was already of public
the issuance of arrest warrants, the Constitution itself requires only knowledge that the United States was requesting his extradition.
the examination under oath or affirmation of complainants and the Therefore, his constituents were or should have been prepared for
witnesses they may produce. the consequences of the extradition case. Thus, the court ruled
against his claim that his election to public office is by itself a
The Proper Procedure to “Best Serve The Ends Of Justice” In compelling reason to grant him bail.
Extradition Cases Upon receipt of a petition for extradition and its
supporting documents, the judge must study them and make, Giving premium to delay by considering it as a special
as soon as possible, a prima facie finding whether circumstance for the grant of bail would be tantamount to giving
a. they are sufficient in form and substance  him the power to grant bail to himself. It would also encourage him
b. they show compliance with the Extradition Treaty and to stretch out and unreasonably delay the extradition proceedings
Law even more. Extradition proceedings should be conducted with all
c. the person sought is extraditable deliberate speed to determine compliance with the Extradition
Treaty and Law; and, while safeguarding basic individual rights, to
At his discretion, the judge may require the submission of further avoid the legalistic contortions, delays and technicalities that may
documentation or may personally examine the affiants and negate that purpose.
witnesses of the petitioner. If, in spite of this study and
examination, no prima facie finding is possible, the petition may be That he has not yet fled from the Philippines cannot be taken to
dismissed at the discretion of the judge. On the other hand, if the mean that he will stand his ground and still be within reach of our
presence of a prima facie case is determined, then the magistrate government if and when it matters; that is, upon the resolution of
must immediately issue a warrant for the arrest of the extraditee, the Petition for Extradition.
who is at the same time summoned to answer the petition and to
appear at scheduled summary hearings. Prior to the issuance of iii. NO.
the warrant, the judge must not inform or notify the potential Potential extraditees are entitled to the rights to due process and
extraditee of the pendency of the petition, lest the latter be given to fundamental fairness. The doctrine of right to due process and
the opportunity to escape and frustrate the proceedings. fundamental fairness does not always call for a prior opportunity to
be heard. A subsequent opportunity to be heard is enough. He will
ii. Yes. be given full opportunity to be heard subsequently, when the
The constitutional provision on bail on Article III, Section 13 of the extradition court hears the Petition for Extradition. Indeed,
Constitution, as well as Section 4 of Rule 114 of the Rules of available during the hearings on the petition and the answer is the
Court, applies only when a person has been arrested and detained full chance to be heard and to enjoy fundamental fairness that is
for violation of Philippine criminal laws. It does not apply to compatible with the summary nature of extradition.
extradition proceedings, because extradition courts do not render
judgments of conviction or acquittal. Moreover, the constitutional It is also worth noting that before the US government requested
right to bail “flows from the presumption of innocence in favor of the extradition of respondent, proceedings had already been
every accused who should not be subjected to the loss of freedom conducted in that country. He already had that opportunity in the
as thereafter he would be entitled to acquittal, unless his guilt be requesting state; yet, instead of taking it, he ran away.
proved beyond reasonable doubt. In extradition, the presumption
of innocence is not at issue. The provision in the Constitution Other Doctrines:
stating that the “right to bail shall not be impaired even when the Five Postulates of Extradition 
privilege of the writ of habeas corpus is suspended” finds 1) Extradition Is a Major Instrument for the Suppression of
application “only to persons judicially charged for rebellion or Crime
In this era of globalization, easier and faster international travel,
TO GOD BE THE GLORY
and an expanding ring of international crimes and criminals, we counts of the offense of conspiracy to defraud, penalized by the
cannot afford to be an isolationist state. We need to cooperate with common law of Hong Kong. Warrants of arrest were issued against
other states in order to improve our chances of suppressing crime him. If convicted, he faces a jail term of seven (7) to fourteen (14)
in our own country. years for each charge. On September 13, 1999, the DOJ received
from the Hong Kong Department of Justice a request for the
2) The Requesting State Will Accord Due Process to the provisional arrest of private respondent. The RTC, Branch 19,
Accused Manila issued an Order of Arrest against private respondent. That
By entering into an extradition treaty, the Philippines is deemed to same day, the NBI agents arrested and detained him. Private
have reposed its trust in the reliability or soundness of the legal respondent filed a petition for bail which was opposed by petitioner.
and judicial system of its treaty partner, as well as in the ability and After hearing, Judge Bernardo, Jr. issued an Order denying the
the willingness of the latter to grant basic rights to the accused in petition for bail, holding that there is no Philippine law granting bail
the pending criminal case therein. in extradition cases and that private respondent is a high "flight
risk." Judge Bernardo, Jr. inhibited himself from further hearing the
3) The Proceedings Are Sui Generis case, it was then raffled off to Branch 8 presided by respondent
An extradition proceeding is sui generis:  judge. Private respondent filed a motion for reconsideration of the
a) It is not a criminal proceeding which will call into operation all Order denying his application for bail and this was granted by
the rights of an accused as guaranteed by the Bill of Rights. It does respondent judge. Petitioner filed an urgent motion to vacate the
not involve the determination of the guilt or innocence of an above Order, but it was denied by respondent judge. Hence, the
accused. His guilt or innocence will be adjudged in the court of the instant petition.
state where he will be extradited. 
Issue:
b) An extradition proceeding is summary in nature while criminal
Whether or not respondent judge acted with grave abuse of
proceedings involve a full-blown trial. 
discretion amounting to lack or excess of jurisdiction as there is no
c) In terms of the quantum of evidence to be satisfied, a criminal provision in the Constitution granting bail to a potential extraditee.
case requires proof “beyond reasonable doubt” for conviction while
a fugitive may be ordered extradited “upon showing of the Held:
existence of a prima facie case” No.Bearing in mind the purpose of extradition proceedings, the
d) Unlike in a criminal case where judgment becomes executory premise behind the issuance of the arrest warrant and the
upon being rendered final, in an extradition proceeding, our courts "temporary detention" is the possibility of flight of the potential
may adjudge an individual extraditable but the President has the extraditee. This is based on the assumption that such extraditee is
final discretion to extradite him. a fugitive from justice. Given the foregoing, the prospective
extraditee thus bears the onus probandi of showing that he or she
Extradition is merely a measure of international judicial assistance is not a flight risk and should be granted bail.
through which a person charged with or convicted of a crime is
restored to a jurisdiction with the best claim to try that person. The Honored principle of pacta sunt servanda demands that the
ultimate purpose of extradition proceedings in court is only to Philippines honor its obligations under the Extradition Treaty it
determine whether the extradition request complies with the entered into with the Hong Kong Special Administrative Region,
Extradition Treaty, and whether the person sought is extraditable. Failure to comply with these obligations is a setback in our foreign
relations and defeats the purpose of extradition. However, it does
4) Compliance Shall Be in Good Faith. not necessarily mean that in keeping with its treaty obligations, the
We are bound by pacta sunt servanda to comply in good faith with Philippines should diminish a potential extradites’ rights to life,
our obligations under the Treaty. Accordingly, the Philippines must liberty, and due process. Where these rights are guaranteed, not
be ready and in a position to deliver the accused, should it be found only by our Constitution, but also by international conventions, to
proper which the Philippines is a party. We should not deprive an
extraditee of his right to apply for bail, provided that a certain
5) There Is an Underlying Risk of Flight standard for the grant is satisfactorily met.
Indeed, extradition hearings would not even begin, if only the
accused were willing to submit to trial in the requesting country. An extradition proceeding being sui generis, the standard of proof
Prior acts of herein respondent: a) leaving the requesting state required in granting or denying bail can neither be the proof beyond
right before the conclusion of his indictment proceedings there; reasonable doubt in criminal cases nor the standard of proof of
and b) remaining in the requested state despite learning that the preponderance of evidence in civil cases. While administrative in
requesting state is seeking his return and that the crimes he is character, the standard of substantial evidence used in
charged with are bailable administrative cases cannot likewise apply given the object of
extradition law which is to prevent the prospective extradite from
Extradition is Essentially Executive Extradition is essentially an fleeing our jurisdiction. “clear and convincing evidence” should be
executive, not a judicial, responsibility arising out of the presidential used in granting bail in extradition cases
power to conduct foreign relations and to implement treaties. Thus,
the Executive Department of government has broad discretion in The potential extradite must prove by “clear and convincing
its duty and power of implementation. evidence” that he is not a flight risk and will abide with all the orders
and processes of the extradition court.
4. Govt of Hongkong vs. Olalia, Jr., G.R. No.
153675, April 19, 2007 5. Gonzales vs. Hechanova, 9 SCRA 230
Facts: Facts:
Private respondent Muñoz was charged before the Hongkong During the term of President Diosdado Macapagal, he entered into
Court with 3 counts of the offense of "accepting an advantage as two executive agreements with Vietnam and Burma for the
agent," in violation of Section 9 (1) (a) of the Prevention of Bribery importation of rice without complying with the requisite of securing
Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) a certification from the National Economic Council showing that
there is a shortage in cereals or rice. Hence, the then Executive
TO GOD BE THE GLORY
Secretary, Rufino Hechanova, authorized the importation of

67,000 tons of rice from abroad to the detriment of our local Issue:
planters. Ramon Gonzales, then president of the Iloilo Palay and Whether or not the Court of Appeals erred in not applying the
Corn Planters Association assailed the executive agreements. Warsaw Convention to limit the liability of the respondent airline.
Gonzales averred that Hechanova is without jurisdiction or in
excess of jurisdiction”, because Republic Act 3452 prohibits the Held:
importation of rice and corn by “the Rice and Corn Administration No. Although the Warsaw Convention has the force and effect of
or any other government agency. law in this country, being a treaty commitment assumed by the
Philippine government, said convention does not operate as an
ISSUE: exclusive enumeration of the instances for declaring a carrier liable
Whether or not RA 3452 prevails over the 2 executive agreements for breach of contract of carriage or as an absolute limit of the
entered into by Macapagal. extent of that liability. The Warsaw Convention declares the carrier
liable for damages in the enumerated cases and under certain
HELD: limitations. However, it must not be construed to preclude the
Yes. Under the Constitution, the main function of the Executive is operation of the Civil Code and other pertinent laws. It does not
to enforce laws enacted by Congress. The former may not interfere regulate, much less exempt, the carrier from liability for damages
in the performance of the legislative powers of the latter, except in for violating the rights of its passengers under the contract of
the exercise of his veto power. He may not defeat legislative carriage, especially if wilful misconduct on the part of the carrier's
enactments that have acquired the status of laws, by indirectly employees is found or established, which is clearly the case before
repealing the same through an executive agreement providing for Us.
the performance of the very act prohibited by said laws. In the
event of conflict between a treaty and a statute, the one which is For, the Warsaw Convention itself provides in Art. 25 that
latest in point of time shall prevail, is not applicable to the case at (1) The carrier shall not be entitled to avail himself of the provisions
bar, Hechanova not only admits, but, also, insists that the contracts of this convention which exclude or limit his liability, if the damage
adverted to are not treaties. No such justification can be given as is caused by his wilful misconduct or by such default on his part as,
regards executive agreements not authorized by previous in accordance with the law of the court to which the case is
legislation, without completely upsetting the principle of separation submitted, is considered to be equivalent to wilful misconduct.
of powers and the system of checks and balances which are
fundamental in our constitutional set up. Petitioner breached its contract of carriage with private respondent
when it failed to deliver his luggage at the designated place and
As regards the question whether an executive or an international time, it being the obligation of a common carrier to carry its
agreement may be invalidated by our courts, suffice it to say that passengers and their luggage safely to their destination, which
the Constitution of the Philippines has clearly settled it in the includes the duty not to delay their transportation, and the evidence
affirmative, by providing that the SC may not be deprived “of its shows that petitioner acted fraudulently or in bad faith.
jurisdiction to review, revise, reverse, modify, or affirm on appeal,
certiorari, or writ of error, as the law or the rules of court may Moral damages predicated upon a breach of contract of carriage
provide, final judgments and decrees of inferior courts in “All cases may only be recoverable in instances where the mishap results in
in which the constitutionality or validity of any treaty, law, death of a passenger, or where the carrier is guilty of fraud or bad
ordinance, or executive order or regulation is in question”. In other faith. The language and conduct of petitioner's representative
words, our Constitution authorizes the nullification of a treaty, not towards respondent Alcantara was discourteous or arbitrary to
only when it conflicts with the fundamental law, but, also, when it justify the grant of moral damages. The CATHAY representative
runs counter to an act of Congress. was not only indifferent and impatient; he was also rude and
insulting. He simply advised Alcantara to buy anything he wanted.
6. Cathay Pacific Airways vs. Court of Appeals, But even that was not sincere because the representative knew
219 SCRA 520 that the passenger was limited only to $20.00 which, certainly, was
not enough to purchase comfortable clothings appropriate for an
executive conference. Considering that Alcantara was not only a
Facts:
revenue passenger but even paid for a first class airline
On 19 October 1975, respondent Tomas L. Alcantara was a first
accommodation and accompanied at the time by the Commercial
class passenger of petitioner Cathay Pacific Airways from Manila
Attache of the Philippine Embassy who was assisting him in his
to Hongkong and onward from Hongkong to Jakarta. The purpose
problem, petitioner or its agents should have been more courteous
of his trip was to attend the following day, October 20, 1975, a
and accommodating to private respondent, instead of giving him a
conference with the Director General of Trade of Indonesia. He
curt reply, "What can we do, the baggage is missing. I cannot do
checked in his luggage which contained not only his clothing and
anything . . . Anyhow, you can buy anything you need, charged to
articles for personal use but also papers and documents he
Cathay Pacific." Where in breaching the contract of carriage the
needed for the conference. Upon his arrival in Jakarta, respondent
defendant airline is not shown to have acted fraudulently or in bad
discovered that his luggage was missing. Private respondent was
faith, liability for damages is limited to the natural and probable
told that his luggage was left behind in Hongkong. For this,
consequences of the breach of obligation which the parties had
respondent Alcantara was offered $20.00 as "inconvenience
foreseen or could have reasonably foreseen. In that case, such
money" to buy his immediate personal needs until the luggage
liability does not include moral and exemplary damages.
could be delivered to him. The respondent, as a result of the
Conversely, if the defendant airline is shown to have acted
incident had to seek postponement of his pre-arranged
fraudulently or in bad faith, the award of moral and exemplary
conference. When his luggage finally reached Jakarta more than
damages is proper.
twenty four hours later, it was not delivered to him at his hotel but
was required by petitioner to be picked up by an official of the
However, respondent Alcantara is not entitled to temperate
Philippine Embassy .Respondent filed a case for damages in the
damages, contrary to the ruling of the court a quo, in the absence
CFI of Lanao del Norte which ruled in his favor. Both parties
of any showing that he sustained some pecuniary loss. It cannot
appealed to the Court of Appeals. Court of Appeals rendered its
be gainsaid that respondent's luggage was ultimately delivered to
decision affirming the decision of the CFI but by modifying its
him without serious or appreciable damage.
awards by increasing the damages.
TO GOD BE THE GLORY
d. capacity to enter into relations with the other states.

As We have repeatedly held, although the Warsaw Convention has
the force and effect of law in this country, being a treaty 1. Island of Palmas Case (Netherlands vs. US, Arbitrator
commitment assumed by the Philippine government, said Max Huber of PCIJ, 1928) on “Territorial
convention does not operate as an exclusive enumeration of the Sovereignty”;
instances for declaring a carrier liable for breach of contract of
carriage or as an absolute limit of the extent of that liability. The One liner: Discovery of terra nullius is not enough to establish
Warsaw Convention declares the carrier liable for damages in the sovereignty. It must be accompanied by effective control.
enumerated cases and under certain limitations. However, it must 1. Palmas (known as Miangas) is an island located halfway
not be construed to preclude the operation of the Civil Code and between the islands of Mindanao, Philippines and Nanusa in
other pertinent laws. It does not regulate, much less exempt, the Netherlands
carrier from liability for damages for violating the rights of its 2. American General, Leonard Nood visited Palmas and
passengers under the contract of carriage, especially if wilful discovered that Netherlands also claimed sovereignty over it.
misconduct on the part of the carrier's employees is found or 3. They agreed to submit the dispute to arbitration.
established, which is clearly the case before us.
US based their claim on:
7. Ichong vs. Hernandez, supra. · As successor to rights of Spain; the latter basing their title on
discovery;  
Facts: · Treaty of Munster of 1648 which Spain and Netherlands were
Lao Ichong is a Chinese businessman who entered the country to themselves contracting parties;  The United States, as successor
take advantage of business opportunities herein abound (then) – to the rights of Spain over the Philippines, bases its title in the first
particularly in the retail business. For some time he and his fellow place on discovery. The existence of sovereignty thus acquired is,
Chinese businessmen enjoyed a “monopoly” in the local market in in the American view, confirmed not merely by the most reliable
Pasay. Until in June 1954 when Congress passed the RA 1180 or cartographers and authors, but also by treaty, in particular by the
the Retail Trade Nationalization Act the purpose of which is to Treaty of Minister, of 1648, to which Spain and the Netherlands are
reserve to Filipinos the right to engage in the retail business. themselves Contracting Parties. As, according to the same
Ichong then petitioned for the nullification of the said Act on the argument, nothing has occurred of a nature, in international law, to
ground that it contravened several treaties concluded by the RP cause the acquired title to disappear, this latter title was intact at
which, according to him, violates the equal protection clause (pacta the moment when, by the Treaty of December 10th, 1898, Spain
sund servanda). He said that as a Chinese businessman engaged ceded the Philippines to the United States. In these circumstances,
in the business here in the country who helps in the income it is, in the American view, unnecessary to establish facts showing
generation of the country he should be given equal opportunity. the actual display of sovereignty precisely over the Island of
Palmas (or Miangas). The United States Government finally
ISSUE: maintains that Palmas (or Miangas) forms a geographical part of
Whether or not a law may invalidate or supersede treaties or the Philippine group and in virtue of the principle of contiguity
generally accepted principles. belongs to the Power having the sovereignty over the Philippines.
 Netherlands based their claim on:  
HELD:
Yes, a law may supersede a treaty or a generally accepted · Acts of direct and/or indirect display of sovereignty
principle. In this case, there is no conflict at all between the raised According to the Netherlands Government, on the other hand, the
generally accepted principle and with RA 1180. The equal fact of discovery by Spain is not proved, nor yet any other form of
protection of the law clause “does not demand absolute equality acquisition, and even if Spain had at any moment had a title, such
amongst residents; it merely requires that all persons shall be title had been lost. The principle of contiguity is contested. The
treated alike, under like circumstances and conditions both as to Netherlands Government's main argument endeavors to show that
privileges conferred and liabilities enforced”; and, that the equal the Netherlands, represented for this purpose in the first period of
protection clause “is not infringed by legislation which applies only colonization by the East India Company, have possessed and
to those persons falling within a specified class, if it applies alike to exercised rights of sovereignty from 1677, or probably from a date
all persons within such class, and reasonable grounds exist for prior even to 1648, to the present day. This sovereignty arose out
making a distinction between those who fall within such class and of conventions entered into with native princes of the Island of
those who do not.” Sangi (the main island of the Talautse (Sangi Isles), establishing
the suzerainty of the Netherlands over the territories of these
For the sake of argument, even if it would be assumed that a treaty princes, including Palmas (or Miangas). The state of affairs thus
would be in conflict with a statute then the statute must be upheld set up is claimed to be validated by international treaties. The facts
because it represented an exercise of the police power which, alleged in support of the Netherlands arguments are, in the United
being inherent could not be bargained away or surrendered States Government's view, not proved, and, even if they were
through the medium of a treaty. Hence, Ichong can no longer proved, they would not create a title of sovereignty, or would not
assert his right to operate his market stalls in the Pasay city market. concern the Island of Palmas.
E. States and Governments Issues: 

1. Does the Miangas belong to the sovereignty of US or of
Art 1, 1933, Montevideo Convention on the Rights and Duties Netherlands. The two Parties claim the island in question as a
of States territory attached for a very long period to territories relatively close
at hand which are incontestably under the sovereignty of the one
The state as a person of international law should possess the or the other of them.
following qualifications:
a. a permanent population; 2. How will the discrepancies in the general and special maps be
b. defined territory;  taken into account? (There were maps that the parties relied upon-
showing that the island is part of their territory) 3.
c. government; and 
TO GOD BE THE GLORY
3. What is territorial sovereignty? Territorial sovereignty is, in

3. Can a title based on contiguity be made to apply? general, a situation recognized and delimited in space, either
by so-called natural frontiers as recognized by international
Ruling:  law or by outward signs of delimitation that are undisputed, or
1. The Netherland’s title of sovereignty holds good over the else by legal engagements entered into between interested
inchoate title of the US. The latter’s title cannot prevail over a neighbors, such as frontier conventions, or by acts of
definite title founded on continuous and peaceful display of recognition of States within fixed boundaries.
sovereignty. Further, Spain could not transfer more rights than she 4. What is the corollary duty of a state claiming sovereignty?
herself possessed. Territorial sovereignty, as has already been said, involves the
exclusive right to display the activities of a State. This right
In letter dated April 7th, 1900, from the Secretary of State of the has as corollary a duty: the obligation to protect within the
United States to the Spanish Minister at Washington: territory the rights of other States, in particular their right to
integrity and inviolability in peace and in war, together with
The metes and bounds defined in the treaty were not understood the rights which each State may claim for its nationals in
by either party to limit or extend Spain's right of cession. Were any foreign territory. Without manifesting its territorial sovereignty
island within those described bounds ascertained to belong in fact in a manner corresponding to circumstances, the State
to Japan, China, Great Britain or Holland, the United States could cannot fulfil this duty. Territorial sovereignty cannot limit itself
derive no valid title from its ostensible inclusion in the Spanish to its negative side, i.e. to excluding the activities of other
cession. The compact upon which the United States negotiators States; for it serves to divide between nations the space upon
insisted was that all Spanish title to the archipelago known as the which human activities are employed, in order to assure them
Philippine Islands should pass to the United States — no less or at all points the minimum of protection of which international
more than Spain's actual holdings therein, but all. This Government law is the guardian. 
must consequently hold that the only competent and equitable test 5. What happens if there is a dispute? If a dispute arises as to
of fact by which the title to a disputed cession in that quarter may the sovereignty over a portion of territory, it is customary to
be determined is simply this: ''Was it Spain's to give? If valid title examine which of the States claiming sovereignty possesses
belonged to Spain, it passed; if Spain had no valid title, she could a title — cession conquest, occupation, etc.—superior to that
convey none." which the other State might possibly bring forward against it.
The records of the conquest cannot come to the aid of US. Indeed, However, if the contestation is based on the fact that the other
the reports on record which concern the discovery of the Island of Party has actually displayed sovereignty, it cannot be sufficient to
Palmas state only that an island was "seen", which island, establish the title by which territorial sovereignty was validly
according to the geographical data, is probably identical with that acquired at a certain moment; it must also be shown that the
in dispute. No mention is made of landing or of contact with the territorial sovereignty has continued to exist and did exist at the
natives. And in any case no signs of taking possession or of moment which for the decision of the dispute must be considered
administration by Spain have been shown or even alleged to exist as critical.
until the very recent date to which the reports of Captain Malone
and M. Alvarez, of 1919 contained in the United States Art 3, 1933, Montevideo Convention on the Rights and Duties
Memorandum, relate. of States
2. A map affords only an indication — and that a very indirect one The political existence of the state is independent of recognition by
— and, except when annexed to a legal instrument, has not the the other states. Even before recognition the state has the right to
value of such an instrument, involving recognition or abandonment defend its integrity and independence, to provide for its
of right conservation and prosperity, and consequently to organize itself as
it sees fit, to legislate upon its interests, administer its services, and
3. No. The principle of contiguity, in regard to islands, may not be to define the jurisdiction and competence of its courts.
out of place when it is a question of allotting them to one State
rather than another, either by agreement between the Parties, or The exercise of these rights has no other limitation than the
by a decision not necessarily based on law; but as a rule exercise of the rights of other states according to international law.
establishing ipso jure the presumption of sovereignty in favor of a
particular State, this principle would be in conflict with what has 2. (See again) North Sea Continental Shelf Cases
been said as to territorial sovereignty and as to the necessary Population
relation between the right to exclude other States from a region
and the duty to display therein the activities of the state. Nor is this 3. Reference re Secession of Quebec, [1998] 2 S.C.R.
principle of contiguity admissible as a legal method of deciding 217 (Opinion of the Supreme Court of Canada)
questions of territorial sovereignty; for it is wholly lacking in
precision and would in its application lead to arbitrary results. This Faced with the question of whether Québec could make a
would be especially true in a case such as that of the island in unilateral declaration of independence, the Supreme Court
question, which is not relatively close to one single continent, but declared unanimously in this reference (1998) that such a
forms part of a large archipelago in which strict delimitations declaration would be unconstitutional both by Canadian
between the different parts are not naturally obvious. constitutional law and international law. A constitutional
amendment would, however, make such a secession possible. The
Questions: Court added that Québec could hold a referendum of secession
1. What is an inchoate title? It exist as a claim to establish and, given a clear question and a clear majority in favor of
sovereignty by effective occupation.  secession, the rest of Canada, in such a case, would be
2. What is sovereignty with regards to relations between states? constitutionally obliged to negotiate the terms by which Québec
It signifies independence. Independence in regard to a would accede to independence, and that such a secession must
portion of the globe is the right to exercise therein, to the conform to important basic principles, namely, the rule of law,
exclusion of any other State, the functions of a State.  federalism, the protection of minorities and democracy.

TO GOD BE THE GLORY
Facts: United Nations Interim Administration Mission in Kosovo (UNMIK),

Quebec attempted to secede from Canada. There had been a and laid down a framework for the administration of Kosovo.5 The
referendum in Quebec. The federal government objected to the powers and responsibilities laid out in SC resolution 1244 (1999)
process and the way the question was posed. The federal were set out in more detail in UNMIK regulation 2001/9 of 15 May
government referred the issue directly to Supreme Court of 2001 on a Constitutional Framework for Provisional Self-
Canada. Government (hereinafter “Constitutional Framework”), which
defined the responsibilities relating to the administration of Kosovo
Issue: between the Special Representative of the Secretary-General and
Under international law, is there a right to self-determination that the Provisional Institutions of Self Government of Kosovo.
would give the National Assembly, legislature or government of
Quebec, the right to effect Quebec’s unilateral secession from The authors of the Kosovo’s declaration of independence claim to
Canada? represent the “call of the people to build a society that honours
human dignity.”7 The declaration relates the decision to the recent
The principle of self-determination captured under international law strife and violence in Kosovo, albeit in “spirit of reconciliation and
has evolved within a framework of respect for the territorial integrity forgiveness.”8 It gives special emphasis to the commitment to
of existing states. It is only people under colonial or foreign promote democratic principles and welcomes the international
occupation that are granted the right to external self-determination, community’s continued support through the international presence
based on the assumption that both are entities inherently distinct established in Kosovo on the basis of SC Resolution 1244 (1999).9
from the colonialist power and the occupant power. Quebec is The declaration observes that Kosovo “is a special case arising
neither a colony nor a foreign occupied land in this case nor have from Yugoslavia's non- consensual breakup and is not a precedent
her people been victims of attacks on their physical existence or for any other situation.”10 Notably, the declaration stops short of
integrity or of massive human violations. But Quebecers are directly referring to the Kosovo’s claim to self- determination.11
represented equitably in legislative, executive and judicial Instead, it implies to represent the collective decision of Kosovo’s
institutions, they occupy prominent positions within the population as a whole, because it speaks as the “will of the people”
government of Canada and they equally enjoy the freedom to in the operative paragraph 1.12 The “will of the people” refers to a
pursue their political, economic, social and cultural development. particular image of Kosovo formed by the Contact Group
The possibility that the international law right of self-determination (composed of the U.S., UK, France, Germany, Italy and Russia) in
could entail secession as a “last resort” in cases of especially response to the war in Bosnia in the early 1990s. Namely, the
severe oppression, in which other channels for exercising internal November 2005 Contact Group produced a set of “Guiding
self-determination had been “totally frustrated” is left open by the Principles” to resolve Kosovo's future status, which defined Kosovo
Reference Re Secession of Quebec. as a unitary structure that cannot be partitioned or united with any
other country (i.e. Albania).
Ratio: 
There are unwritten constitutional principles: In response to the Kosovo’s declaration of independence, to date,
1. Federalism  sixty-nine of United Nations Member States, including United
2. Democracy  States, United Kingdom, and France, have formally recognized the
3. Constitutionalism and Rule of law  Republic of Kosovo as an independent state. Other states, such as
4. Respect for minorities Serbia, People’s Republic of China, Russia and India, rejected the
declaration as illegal and illegitimate. In October 2008, Serbia
Analysis:  requested a vote from the UN Member States for the ICJ to give
an Advisory Opinion. Following the request from Serbia, the United
1. Because of the principles of federalism, democracy,
Nations General Assembly (UNGA) requested an Advisory Opinion
constitutionalism and the rule of law, and respect for minorities,
from the ICJ on the following question: “Is the unilateral declaration
Quebec could not secede unilaterally, due to limits in the
of independence by the Provisional Institutions of Self-Government
constitution.
2. Because of the federalism principle: A clear majority on a clear of Kosovo in accordance with international law?”
question would create a binding obligation on the other party to
negotiate in good faith. The ICJ narrowly interpreted the request by the UNGA in providing
its opinion on whether or not the declaration of independence is in
4. ICJ Advisory Opinion on the Unilateral Declaration of accordance with international law. It considered that the debates
Independence in respect of Kosovo (2010) regarding the extent of the right of self-determination and the
existence of any right of “remedial secession” are beyond the
(See Annex 6.1 also) The International Court of Justice (ICJ) ruled scope of the question posed by the UNGA.15 The Court only
answered the more narrow question determining whether the
in an advisory opinion on 22 July 2010 that Kosovo’s 17 February
declaration of independence violated general international law or
2008 unilateral declaration of independence from Serbia did not
the lex specialis created by SC Resolution 1244 (1999).
violate international law.1 The Kosovo Parliament’s declaration of
independence stated that Kosovo would continue to be bound by
The ICJ concluded that general international law contains no
the United Nations Security Council Resolution 1244 (1999)
applicable prohibition of declarations of independence. The
(hereinafter “SC Resolution 1244 (1999)”), as well as the Ahtisaari
adoption of the declaration of independence did not violate general
plan.2 UN Special Envoy for Kosovo Martti Ahtisaari’s proposal,
international law, the SC Resolution 1244 (1999) or the
produced in February 2007, defined Kosovo’s internal settlement,
Constitutional Framework. Consequently, the adoption of that
minority-protection mechanisms, and allowed for independence
declaration did not violate any applicable rule of international law.
under international supervision.3 The proposal increased the
This paper observes both the political and legal ramifications of the
powers devolved to Kosovar institutions but without providing for
ICJ Advisory Opinion. First, it will address the manner in which the
the complete removal of international oversight and authority.
ICJ reformulated and interpreted the question posed by the UNGA.
It will then focus on the ICJ’s approach to the status of the unilateral
SC Resolution 1244 (1999) authorized the creation of an
declaration of independence in first, general international law, and
international military presence (KFOR) led by the North Atlantic
second, its validity under the SC Resolution 1244 (1999) and the
Treaty Organisation (NATO), an international civil presence (the
UNMIK Constitutional Framework. In view of the Court’s brief
TO GOD BE THE GLORY
treatment of the right to ‘remedial self- determination,’ the analysis and systematic" extinction of entire populations, it is hard to
will conclude with general remarks on the status of this right in imagine any situation in which the international community would
international law and its relationship to the case of Kosovo. seek to limit or absolve liabilities for such actions. Additionally,
genocide is almost always the product of mass-organizational
5. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) campaigns to exterminate a particular group or groups of people.
The international community probably does not foresee a group of
Doctrine: private individuals waging an extermination campaign without the
Under international law, a state is an entity which has "a defined backing of some sort of governmental, rebel or military
territory and a permanent population, under the control of its own organization.
government, and that engages in, and has the capacity to engage
in formal relations with other countries." The customary Though the Kadic court ruled that liability for acts of torture would
international law of human rights, such as the proscription of official require state action, it provided the district court with guidelines for
torture, applies to states without distinction between recognized determining Karadzic's status as a state actor. The court ruled that
and unrecognized. In other words, recognition is not an element of in determining Srpska's status as a "state," the district court should
statehood. use the international definition of "state," rather than relying on
whether or not an entity such as Srpska has been recognized by
Facts: the United States. While United States law looks to the Executive
On March 3, 1992, the Croats and Muslims in the area proclaimed Branch's determination as to whether an entity has been
their independence as Bosnia-Herzegovina by a popular recognized as a "state," international law provides a much more
referendum. Bosnian Serbs boycotted the referendum and formed lenient formulation of statehood. Under international law, a state is
a self-proclaimed Serbian “state” within Bosnian territory. On April an entity which has "a defined territory and a permanent
6, war broke out between the Bosnian government and the rebel population, under the control of its own government, and that
Serbs. Radovan Karadzic was an influential political and military engages in, and has the capacity to engage in formal relations with
leader of the rebel Serb state known as “Srpska,” which "exercises other countries." Furthermore, the Restatement explains that a
actual control over large parts of the territory of Bosnia- territory which meets these requirements is a "state" regardless of
Herzegovina. He headed a tripartite presidency of Srpska and was whether it is officially recognized by other states.
also the military leader of the warring Serbian forces, who allegedly
caused many of the internationally-recognized atrocities. The Kadic court held that the Bosnian-Serbian entity known as
Srpska falls clearly under this definition since it has a President
In 1993, as the war intensified, two groups of similarly situated and legislature, as well as its own currency and has also entered
plaintiffs filed class action suits against Karadzic in the United into agreements with other governments. Furthermore, it has
States District Court for the Southern District of New York in carved out its own territory within Bosnia where it governs the
Manhattan. The plaintiffs alleged that Karadzic committed populations that reside there. Moreover, the court noted a potential
numerous human rights violations against them as President of problem which could arise if an entity such as Srpska was defined
Srpska and as commander of the Serbian rebel forces. according to official recognition or non-recognition by the United
Specifically, they alleged that they were the victims of a genocidal States. Official recognition by the United States would allow
campaign waged by Serbian forces under Karadzic's direction. Karadzic to avail himself of a number of official immunities, such
as the head of state doctrine or the Foreign Sovereign Immunities
On September 7, 1994, United States District Court Judge Peter Act (FSIA). However, if Srpska is not recognized by the United
K. Leisure dismissed the lawsuits for lack of subject matter States, Karadzic would be a non-state actor and therefore could
jurisdiction. Plaintiffs had sought subject matter jurisdiction under not be liable for acts of torture under the law of nations. Thus,
the Alien Tort Act. They also sought relief under the Torture Victim requiring official recognition to hold Karadzic liable as a "state
Protection Act (TVPA) and the federal question statute. Judge actor" would provide a permanent shield from liability. Judge
Leisure held that jurisdiction was improper under the Alien Tort Act Newman maintained that this result would be "perverse, and thus
because Karadzic was a private actor, and that the law of nations chose the more flexible international definition of state to determine
does not impose duties on private persons or "non-state state action.
actors." Judge Edwards, writing one of three concurring opinions,
argued that extending jurisdiction to non-state actors "would 6. Underhill vs. Hernandez, 168 U.S. 250
require this court to venture out of the comfortable realm of
established international law ... in which states are the actors." Doctrine:
Judge Leisure also recognized the possibility that the executive Every sovereign state is bound to respect the independence of
branch may eventually recognize Karadzic as an official head of every other sovereign state, and the courts of one country will not
state. Karadzic could then claim immunity under the head of state sit in judgment on the acts of the government of another, done
doctrine or the Foreign Sovereign Immunities Act (FSIA)." In this within its own territory.
event, plaintiff's claims would turn into advisory opinions for which
no justiciable controversy exists." Facts:
In 1892, a revolution against the administration was initiated in
Issue: Venezuela. Revolutionists under control of a certain Crespo
WON Srpska can be considered a state so as to properly invoke claimed that the administration has ceased to be the legitimate
the Torture Convention? government. Gen. Hernandez belonged to the anti-administration
party, (basically the revolutionists), and commanded its forces in
Ruling: the vicinity of Ciudad Bolivar. On the 8th of Aug. 1892, an
YES. The Kadic court ruled that liability for genocide and war engagement took place between the armies of the two parties at
crimes should be binding on both state actors and non-state actors. Buena Vista, some 7 miles from Bolivar, in which the troops under
However, with regard to torture, the court found that liability may Hernandez prevailed. On the 13th of Aug, Hernandez entered
only be imposed on state actors. The court did not try and reconcile Bolivar, and assumed command of the city. All of the local officials
the difference. One reason may be that the distinction between had in the meantime left, and the vacant positions were filled by
state-actor and non-state actor liability for war crimes and genocide Gen. Hernandez. In October, the Crespo party had achieved
is rather impractical. Since these acts often involve the "deliberate
TO GOD BE THE GLORY
success generally and was formally recognized as the legitimate adherents of that side of the controversy in the particular locality
government of Venezuela by the United States. where Hernandez was the leader of the movement entertained a
preference for him as the future executive head of the nation, but
George F. Underhill was a citizen of the United States, who had that is beside the question. The acts complained of were the acts
constructed a waterworks system for the city of Bolivar, under a of a military commander representing the authority of the
contract with the government. He was engaged in supplying the revolutionary party as a government, which afterwards succeeded,
place with water, and carrying on a machinery repair business. and was recognized by the United States. The circuit court of
Some time after the entry of Gen. Hernandez, Underhill applied to appeals was justified in concluding that the acts of the defendant
him (as the officer in command) for a passport to leave the city. were the acts of the government of Venezuela, and as such are
Hernandez refused this request (did not say what the reason for not properly the subject of adjudication in the courts of another
refusal was). On Oct. 18, a passport was finally given to him and government. The evidence upon the trial indicated that the purpose
Underhill left the country. Underhill brought an action to recover of the defendant in his treatment of the plaintiff was to coerce the
damages in the United States Court for the detention caused by plaintiff to operate his waterworks and his repair works for the
the refusal to grant him a passport, and for the assault he suffered benefit of the community and the revolutionary forces, and that it
from Hernandez’s army. was not sufficient to have warranted a finding by the jury that the
defendant was actuated by malice or any personal or private
The case was tried at the Circuit court of the United States for the motive.
Eastern district of New York where verdict was rendered in favor
of the defendant Hernandez, on the ground that 'because the acts 7. Tinoco Claims Arbitration (Great Britain v. Costa
of defendant were those of military commander, representing a de Rica) [1923] [William H. Taft, Arbitrator]
facto government in the prosecution of a war, he was not civilly
responsible therefor.’ Underhill appealed the judgment to the circuit Facts:
court of appeals where the judgment was affirmed. The circuit court Great Britain (P) claimed that the former government of Costa Rica
of appeals held ‘that the acts of the defendant were the acts of the (D), the Tinoco regime, had granted oil concessions to a British
government of Venezuela and as such are not properly the subject company that had to be honored by the present regime. The
of adjudication in the courts of another government.’ Unsatisfied, Tinoco regime had seized power in Costa Rica by coup. Great
Underhill brought the case to the SC on certiorari. Britain (P) and the United States never recognized the Tinoco
regime. When the Tinoco regime fell, the restored government
Issue: nullified all Tinoco contracts, including an oil concession to a British
Did the lower courts err in ruling that Underhill has no cause of company. Great Britain (P) claimed that the Tinoco government
action against Hernandez, seeing as his acts are acts of another was the only government in existence at the time the contract was
government, and are not subject to the adjudication of another signed and its acts could not be repudiated. Costa Rica (D) claimed
government? that Great Britain (P) was estopped from enforcing the contract by
its nonrecognition of the Tinoco regime. The matter was sent for
Ruling: arbitration.
NO. Every sovereign state is bound to respect the independence
of every other sovereign state, and the courts of one country will Issue:
not sit in judgment on the acts of the government of another, done Does nonrecognition of a new government by other governments
within its own territory. Redress of grievances by reason of such destroy the de facto status of the government?
acts must be obtained through the means open to be availed of by
sovereign powers as between themselves. Nor can the principle Rule:
be confined to lawful or recognized governments, or to cases A government that establishes itself and maintains a peaceful de
where redress can manifestly be had through public channels. The facto administration need not to conform to previous constitution
immunity of individuals from suits brought in foreign tribunals for and nonrecognition of the govt. by other govt.’s does not destroy
acts done within their own states, in the exercise of governmental the de facto status of the govt.
authority, whether as civil officers or as military commanders, must
necessarily extend to the agents of governments ruling by Analysis: The arbitrator found there was no estoppel. The
paramount force as matter of fact. Where a civil war prevails, evidence of nonrecognition did not outweigh the evidence of the de
generally speaking, foreign nations do not assume to judge of the facto status of the Tinoco regime. Unrecognized governments thus
merits of the quarrel. If the party seeking to dislodge the existing may have the power to form valid contracts.
government succeeds, and the independence of the government it
has set up is recognized, then the acts of such government, from Outcome: No. A government that establishes itself and maintains
the commencement of its existence, are regarded as those of an a peaceful de facto administration need not conform to a previous
independent nation. constitution and nonrecognition of the govern ment by other
governments does not destroy the de facto status of the
Where the fact of the existence of war is in issue in the instance of government. Great Britain's (P) nonrecognition of the Tinoco
complaint of acts committed within foreign territory, it is not an regime did not dispute the de facto existence of that regime. There
absolute prerequisite that that fact should be made out by an was no estoppel since the successor government had not been led
acknowledgment of belligerency, as other official recognition of its by British nonrecognition to change its position.
existence may be sufficient proof thereof. In this case the archives
of the state department show that civil war was flagrant in Tinoco was a sovereign government. Even though some sates did
Venezuela from the spring of 1892, that the revolution was not recognize it – that cannot outweigh the evidence disclosed that
successful, and that the revolutionary government was recognized de facto it was a government. The question is not if the government
by the United States as the government of the country; it being abides by a constitution but is: Has it established itself in such a
accepted by the people, in the possession of the power of the way that all w/in the its influence recognize its control, and that
nation, and fully established. there is no opposing force assuming to be a gov in its place. As
long a it is the effective government of the state – it is the
There is no doubt that Hernandez was carrying on military government of the state. Debts owed are not owed by the
operations in support of the revolutionary party. It may be that government of the day but between the state – the only legal entity
TO GOD BE THE GLORY
that is relevant is the state. Citing The Admittance case:

The courts, established or sanctioned in Mexico during the war by
8. Co Kim Cham vs. Valdez Tan Keh, 75 Phil. 113 the commanders of the American forces, were nothing more than
the agents of the military power, to assist it in preserving order in
Facts: the conquered territory, and to protect the inhabitants in their
(1) It is contended that the military occupation of the Philippine persons and property while it was occupied by the American arms.
Islands by the Japanese was not actual and effective because of They were subject to the military power, and their decision under
the existence of guerrilla bands in barrios and mountains and even its control, whenever the commanding officer though proper to
towns and villages; and consequently, no government de facto interfere. They were not courts of the United States, and had no
could have been validly established by the Japanese military right to adjudicate upon a question of prize or no prize.
forces in the Philippines under the precepts of the Hague
Conventions and the law of nations. 9. Lawyers League for a Better Philippines v. Pres.
Aquino, GR Nos. 73748, 73972, 73990, May 22, 1986
(2) It is submitted that the renunciation in our Constitution and in
the Kellog-Briand Pact of war as an instrument of national policy, Facts:
rendered inapplicable the rules of international law authorizing the On February 25, 1986, President Corazon Aquino issued
belligerent Japanese army of occupation to set up a provisional or Proclamation No. 1 announcing that she and Vice President Laurel
de facto government in the Philippines, because Japan started was were taking power. On March 25, 1986, proclamation No.3 was
treacherously and emphasized war as an instrument of national issued providing the basis of the Aquino government assumption
policy; and that to give validity to the judicial acts of court of power by stating that the "new government was installed through
sponsored by the Japanese would be tantamount to giving validity a direct exercise of the power of the Filipino people assisted by
to the acts of these invaders, and would be nothing short of units of the New Armed Forces of the Philippines.
legalizing the Japanese invasion of the Philippines
Issue:
Held: Question as to the legitimacy of the government of President Cory
(1) The presence of guerrilla bands in barrios and mountains, and Aquino.
even in towns of the Philippines whenever these towns left by
Japanese garrisons or by the detachments of troops sent on patrol Held:
to these places, was not sufficient to make the military occupation For the legitimacy of the Aquino government is not a justiciable
ineffective, nor did it cause that occupation to cease, or prevent the matter. It belongs to the realm of politics where only the people of
constitution or establishment of a de facto government in the the Philippines are the judge. And the people have made the
Islands. The belligerent occupation of the Philippines by the judgment; they have accepted the government of President
Japanese invaders became an accomplished fact from the time Corazon C. Aquino which is in effective control of the entire country
General Wainwright, Commander of the American and Filipino so that it is not merely a de facto government but in fact and law a
forces in Luzon, and General Sharp, Commander of the forces in de jure government. Moreover, the community of nations has
Visayas and Mindanao, surrendered and ordered the surrender of recognized the legitimacy of the present government. All the
their forces to the Japanese invaders, and the Commonwealth eleven members of this Court, as reorganized, have sworn to
Government had become incapable of publicity exercising its uphold the fundamental law of the Republic under her government.
authority, and the invader had substituted his own authority for that
of the legitimate government in Luzon, Visayas and Mindanao. 10. In Re Saturnino Bermudez, GR No. 76180, October 24,
1986
(2) The provisions of the Hague Conventions which impose upon
in belligerent occupant the duty to continue the courts as well as Facts: Petition for Declaratory Relief.
the municipal laws in force in the country unless absolutely
prevented, in order to reestablish and insure “Pordre et al vie Art. XVII of the proposed 1986 Constitution:
publice," that is, the public order and safety, and the entire social Sec. 5. The six-year term of the incumbent President and
and commercial life of the country, were inserted, not for the benefit Vice-President elected in the February 7, 1986 election
of the invader, but for the protection and benefit of the people or is, for purposes of synchronization of elections, hereby
inhabitants of the occupied territory and of those not in the military extended to noon of June 30, 1992.
service, in order that the ordinary pursuits and business of society
may not be unnecessarily deranged. The first regular elections for the President and Vice-
President under this Constitution shall be held on the
(3) The word "processes," as used in the proclamation of General second Monday of May, 1992.
Douglas MacArthur, cannot be interpreted to mean judicial
processes; that term should be construed to mean legislative and Claiming that the said provision "is not clear" as to whom it refers,
constitutional processes, by virtue of the maxim "noscitur a sociis." Bermudez then asks the Court "to declare and answer the question
According to this maxim, where a particular word or phrase is of the construction and definiteness as to who, among the present
ambiguous in itself or is equally susceptible of various meanings, incumbent President Corazon Aquino and Vice President Salvador
its meaning may be made clear and specific by considering the Laurel and the elected President Ferdinand E. Marcos and Vice
company in which it is found. Since the proclamation provides that President Arturo M. Tolentino being referred to under the said
"all laws, regulations and processes of any other government in the provision. "
Philippines than that of the said Commonwealth are null and void,"
the word "processes" must be interpreted or construed to refer to Held:
the Executive Orders of the Chairman of the Philippine Executive The petition is dismissed outright for lack of jurisdiction and for lack
Commission, ordinances promulgated by the President of the so- of cause of action. (same ratio as Lawyers League case).
called Republic of the Philippines, and the Constitution itself of said
Republic, and others that are of the same class as the laws and F. International Organizations, Individuals,
regulations with which the word "processes" is associated. Companies and Groups

TO GOD BE THE GLORY
1943, that is to say, until the events which constituted the basis of
G. Jurisdiction the present dispute. In 1939 he left Guatemala at approximately
the end of March; he seems to have gone to Hamburg and to have
paid a few brief visits to Liechtenstein, where he was at the
1. Nottebohm Case (Liechtenstein vs. Guatemala,
beginning of October 1939. It was then, on 9th October, 1939, a
ICJ,1955)
little more than a month after the opening of the Second World War,
marked by Germany's attack on Poland, that he applied for
Facts:
naturalization in Liechtenstein.
Nottebohn (P), a German by birth, lived in Guatemala (D) for 34
years, retaining his German citizenship and family and business
The necessary conditions for the naturalization of foreigners in
ties with it. He however applied for Liechtenstein (P) citizenship a
Liechtenstein are laid down by the Liechtenstein Law of 4th
month after the outbreak of World War II. Nottebohm (P) had no
January, 1934. This Law requires among other things: that the
ties with Liechtenstein but intended to remain in Guatemala. The
applicant for naturalization must prove that acceptance into the
naturalization application was approved by Liechtenstein and
Home Corporation (Heimat verband) of a Liechtenstein commune
impliedly waived its three-year. After this approval, Nottebohm (P)
has been promised to him in case of acquisition of the nationality
travelled to Liechtenstein and upon his return to Guatemala (D), he
of the State; that, subject to waiver of this requirement under stated
was refused entry because he was deemed to be a German
conditions, he must prove that he will lose his former nationality as
citizen. His Liechtenstein citizenship was not honored.
the result of naturalization; that he has been resident in the
Liechtenstein (P) thereby filed a suit before the International Court
Principality for at least three years, although this requirement can
to compel Guatemala (D) to recognize him as one of its national.
be dispensed with in circumstances deserving special
Guatemala (D) challenged the validity of Nottebohm’s (P)
consideration and by way of exception; that he has concluded an
citizenship, the right of Liechtenstein (P) to bring the action and
agreement concerning liability to taxation with the competent
alleged its belief that Nottebohm (P) remained a German national.
authorities and has paid a naturalization fee. The Law reveals
Issue: Must nationality be disregarded by other states where it is
concern that naturalization should only be granted with full
clear that it was a mere device since the nationality conferred on a
knowledge of all the pertinent facts and adds that the grant of
party is normally the concerns of that nation?
nationality is barred where circumstances are such as to cause
apprehension that prejudice may enure to the State of
Held:
Liechtenstein. As regards the procedure to be followed, the
NO. issues relating to citizenship are solely the concern of the
Government examines the application, obtains information
granting nation. This is the general rule. But it does not mean that
concerning the applicant, submits the application to the Diet, and,
other states will automatically accept the conferring state’s
if this application is approved, submits a request to the Reigning
designation unless it has acted in conformity with the general aim
Prince who alone is entitled to confer nationality.
of forging a genuine bond between it and its national aim. In this
case, there was no relationship between Liechtenstein (P) and
In his application for naturalization Nottebohm also applied for the
Nottebohm (P). the change of nationality was merely a subterfuge
previous conferment of citizenship of Mauren, a commune of
mandated by the war. Under this circumstance, Guatemala (D)
Liechtenstein. He sought dispensation from the condition of three
was not forced to recognize it. Dismissed.
years' prior residence, without indicating the special circumstances
warranting such a waiver. He undertook to pay (in Swiss francs)
A state putting forth a claim must establish a locus standi for that
25,000 francs to the Commune and 12,500 francs to the State, the
purpose. Without interruption and continuously from the time of the
costs of the proceedings, and an annual naturalization tax of 1,000
injury to the making of an award been a national of the state making
francs - subject to the proviso that the payment of these taxes was
the claim and must not have been a national of the state against
to be set off against ordinary taxes which would fall due if the
whom the claim has been filed.
applicant took up residence in Liechtenstein - and to deposit as
security the sum of 30,000 Swiss francs. A Document dated 15th
ICJ Summary:
October, 1939 certifies that on that date the citizenship of Mauren
Liechtenstein claimed restitution and compensation on the ground
had been conferred upon him. A Certificate of 17th October, 1939
that the Government of Guatemala had acted towards Mr. Friedrich
evidences the payment of the taxes required to be paid. On 20th
Nottebohm, a citizen of Liechtenstein, in a manner contrary to
October Nottebohm took the oath of allegiance and on 23rd
international law. Guatemala, for its part, contended that the claim
October an arrangement concerning liability to taxation was
was inadmissible on a number of grounds, one of which related to
concluded. A Certificate of Nationality was also produced to the
the nationality of Nottebohm, for whose protection Liechtenstein
effect that Nottebohm had been naturalized by a Supreme
had seized the Court.
Resolution of the Prince of 13th October, 1939. Nottebohm then
obtained a Liechtenstein passport and had it visa-ed by the Consul
In its Judgment the Court affirmed the fundamental importance of
General of Guatemala in Zurich on 1st December, 1939, and
the plea in bar referred to above. In putting forward this plea,
returned to Guatemala at the beginning of 1940, where he
Guatemala referred to the well-established principle that it is the
resumed his former business activities.
bond of nationality between the State and the individual which
alone confers upon the State the right of diplomatic protection.
These being the facts, the Court considered whether the
Liechtenstein considered itself to be acting in conformity with this
naturalization thus granted could be validly invoked against
principle and contended that Nottebohm was, in fact, its national
Guatemala, whether it bestowed upon Liechtenstein a sufficient
by virtue of the naturalization conferred upon him.
title to exercise protection in respect of Nottebohm as against
Guatemala and therefore entitled it to seise the Court of a claim
The Court then considered the facts. Nottebohm, born at Hamburg,
relating to him. The Court did not propose to go beyond the limited
was still a German national when, in October 1939, he applied for
scope of this question.
naturalization in Liechtenstein. In 1905 he went to Guatemala,
which he made the centre of his business activities, which
In order to establish that the Application must be held admissible,
increased and prospered. He sometimes went to Germany on
Liechtenstein argued that Guatemala had formerly recognized the
business and to other countries for holidays, and also paid a few
naturalization which it now challenged. Examining Guatemala's
visits to Liechtenstein, where one of his brothers had lived since
attitude towards Nottebohm since his naturalization, the Court
1931; but he continued to have his fixed abode in Guatemala until
TO GOD BE THE GLORY
considered that Guatemala had not recognized Liechtenstein's title State?

to exercise protection in respect to Nottebohm. It then considered
whether the granting of nationality by Liechtenstein directly In this connection the Court stated the essential facts of the case
entailed an obligation on the part of Guatemala to recognize its and pointed out that Nottebohm always retained his family and
effect, in other words, whether that unilateral act by Liechtenstein business connections with Germany and that there is nothing to
was one which could be relied upon against Guatemala in regard indicate that his application for naturalization in Liechtenstein was
to the exercise of protection. The Court dealt with this question motivated by any desire to dissociate himself from the Government
without considering that of the validity of Nottebohm's of his country. On the other hand, he had been settled for 34 years
naturalization according to the Law of Liechtenstein. in Guatemala, which was the centre of his interests and his
business activities. He stayed there until his removal as a result of
Nationality is within the domestic jurisdiction of the State, which war measures in 1943, and complains of Guatemala's refusal to
settles, by its own legislation, the rules relating to the acquisition of readmit him. Members of Nottebohm's family had, moreover,
its nationality. But the issue which the Court must decide is not one asserted his desire to spend his old age in Guatemala. In contrast,
which pertains to the legal system of Liechtenstein; to exercise his actual connections with Liechtenstein were extremely tenuous.
protection is to place oneself on the plane of international law. If Nottebohm went to chat country in 1946, this was because of the
International practice provides many examples of acts performed refusal of Guatemala to admit him. There is thus the absence of
by States in the exercise of their domestic jurisdiction which do not any bond of attachment with Liechtenstein, but there is a long-
necessarily or automatically have international effect. When two standing and close connection between him and Guatemala, a link
States have conferred their nationality upon the same individual which his naturalization in no way weakened. That naturalization
and this situation is no longer confined within the limits of the was not based on any real prior connection with Liechtenstein, nor
domestic jurisdiction of one of these States but extends to the did it in any way alter the manner of life of the person upon whom
international field, international arbitrators or the Courts of third it was conferred in exceptional circumstances of speed and
States which are called upon to deal with this situation would allow accommodation. In both respects, it was lacking in the
the contradiction to subsist if they confined themselves to the view genuineness requisite to an act of such importance, if it is to be
that nationality is exclusively within the domestic jurisdiction of the enticed to be respected by a State in the position of Guatemala. It
State. In order to resolve the conflict they have, on the contrary, was granted without regard to the concept of nationality adopted in
sought to ascertain whether nationality has been conferred in international relations. Naturalization was asked for not so much
circumstances such as to give rise to an obligation on the part of for the purpose of obtaining a legal recognition of Nottebohm's
the respondent State to recognize the effect of that nationality. In membership in fact in the population of Liechtenstein, as it was to
order to decide this question, they have evolved certain criteria. enable him to substitute for his status as a national of a belligerent
They have given their preference to the real and effective State that of the subject of a neutral State, with the sole aim of thus
nationality, that which accorded with the facts, that based on coming within the protection of Liechtenstein but not of becoming
stronger factual ties between the person concerned and one of wedded to its traditions, its interests, its way of life or of assuming
these States whose nationality is involved. Different factors are the obligations - other than fiscal obligations - and exercising the
taken into consideration, and their importance will vary from one rights pertaining to the status thus acquired.
case to the next: there is the habitual residence of the individual
concerned but also the centre of his interests, his family ties, his For these reasons the Court held the claim of Liechtenstein to be
participation in public life, attachment shown by him for a given inadmissible.
country and inculcated in his children, etc.
2. United States v. Vasquez-Velasco, 471 F.2d 294 (1972)
The same tendency prevails among writers. Moreover, the practice
of certain States, which refrain from exercising protection in favour Facts:
of a naturalized person when the latter has in fact severed his links Javier Vasquez-Velasco (D), a member of a drug cartel in
with what is no longer for him anything but his nominal country, Guadalajara, and several other members, beat and killed (John]
manifests the view that, in order to be invoked against another Walker [an American citizen writing a novel in Mexico] and [Alberto]
State, nationality must correspond with a factual situation. Radelat [a photographer and U.S. legal resident].
The character thus recognized on the international level as D was convicted under U.S. law. On appeal, Vasquez-Velasco (D)
pertaining to nationality is in no way inconsistent with the fact that argued that U.S. penal laws do not apply extraterritorially. United
international law leaves it to each State to lay down the rules States v. Felix-Gutierrez, a case in which a defendant was
governing the grant of its own nationality. This is so failing any convicted of kidnapping and murdering Enrique Camarena, an
general agreement on the rules relating to nationality. It has been American Drug Enforcement Agency (DEA) agent, and Alfredo
considered that the best way of making such rules accord with the Zavala, a DEA informant, was the basis for the appeal by the
varying demographic conditions in different countries is to leave defendant in this case, Javier Vasquez-Velasco (D).
the fixing of such rules to the competence of each State. But, on
the other hand, a State cannot claim that the rules it has laid down At trial, the U.S. government (P) argued that Vasquez-Velasco (D)
are entitled to recognition by another State unless it has acted in and his three co- defendants committed the crimes to further their
conformity with this general aim of making the nationality granted positions in a Guadalajara drug cartel. The murders Velasco (D)
accord with an effective link between the State and the individual. was charged with were allegedly retaliatory actions against a DEA
According to the practice of States, nationality constitutes the crackdown.
juridical expression of the fact that an individual is more closely
connected with the population of a particular State. Conferred by a He was convicted in a jury trial of committing violent crimes in aid
State, it only entitles that State to exercise protection if it of a racketeering enterprise. On appeal, Vasquez-Velasco (D)
constitutes a translation into juridical terms of the individual's argued that U.S. penal laws do not apply extraterritorially.
connection with that State. Is this the case as regards Mr.
Nottebohm? At the time of his naturalization, does Nottebohm Issue: Is the extraterritorial application of a penal statute to the
appear to have been more closely attached by his tradition, his murder of a U.S. citizen mistaken for a federal agent consistent
establishment, his interests, his activities, his family ties, his with principles of international law?
intentions for the near future, to Liechtenstein than to any other
TO GOD BE THE GLORY
Held: Sherman Act in the insurance field subject only to a narrow

Yes. Extraterritorial application of a penal statute to the murder of exception suggesting that the importance of regulation to the
a U.S. citizen mistaken for a federal agent is consistent with United States is slight.
principles of international law. The exercise of extraterritorial
jurisdiction undr the objective territorial principle is permitted under “Comity of nations” is defined by Black’s Law Dictionary, p. 242
international law, under which jurisdiction is exercised over acts (5th ed. 1979) as “(t)he recognition which one nation allows within
performed outside the United States (P) that produce detrimental its territory to the legislative, executive, or judicial acts of another
effects within the United States (P) and the protective principle, nation, having due regard both to international duty and
under which jurisdiction is asserted over foreigners for an act convenience and to the rights of its own citizens or of other persons
committed outside the United States that may impinge on the who are under the protection of its laws.” The Congress did not
territorial intergrity, security or political independence of the U.S. express any view on the question of whether a court with Sherman
hence, extraterritorial application of 18 U.S.C. S 1959 to violent Act jurisdiction should ever decline to exercise such jurisdiction on
crimes associated with drug trafficking is reasonable under grounds of international comity, an issue that the Court declined to
international law principles, since it is a serious and universally address in this case when it enacted the Foreign trade Antitrust
condemned offense. As in Felix-Guiterrez, the crime was directed Improvements Act of 1982 (FTAIA). Justice Scalia advocated that
at the U.S. a nation having some basis for jurisdiction should nonetheless
refrain from exercising that jurisdiction when the exercise of such
The objectives territorial and protective principles apply because jurisdiction is unreasonable when he endorsed the approach of the
the defendant in this case murdered two U.S. citizens on the Restatement (Third) of Foreign Relations Law.
mistaken belief they were DEA agents and their murder might
intimidate the DEA and local police and drug agencies, who might 4. United States v. Columba-Collela, 604 F.2d 356 (5th
otherwise cooperate with the DEA. Extraterritorial jurisdiction Cir. 1979)
would have been difficult to apply if the government had been
unsuccessful in its argument that the murders were committed as Doctrine:
retaliation against the DEA because the case run on the § Under the protective theory, a country's legislature is
defendant’s subjective belief. competent to enact laws and, assuming physical power over
the defendant, its courts have jurisdiction to enforce criminal
3. Hartford Fire Insurance Co. v. California, 509 US 764 laws wherever and by whomever the act is performed that
(1993) threatens the country's security or directly interferes with its
governmental operations.
Facts: § The objective territorial theory looks not to interference with
An action against Hartford Fire Insurance Co. (D) and other governmental interests but to objective effects within the
London-based reinsurers (D) was filed by California (P) on the sovereign state.
premise that they had engaged in unlawful conspiracies to affect
the market for insurance in the United States and that their conduct Facts:
in fact produced substantial effect, thus violating the Sherman Act. Francesco Columba-Colella (FCC), 19 yo, a British subject and a
In Hartford (D) view and argument, the district court should have resident of Mexico, was charged in a US District Court in Texas
declined to exercise jurisdiction under the principle of international with receiving a stolen vehicle in foreign commerce.
comity. The court of appeals agreed that courts should look to that
principle in deciding whether to exercise jurisdiction under the On the evening of August 21, 1978, Francesco met a young man
Sherman Act but that other factors, including Hartford’s (D) named Keith in Curley's Bar in Juarez, Mexico. Keith told him he
express purpose to affect U.S. commerce and the substantial wanted to sell a car, and Francesco, who had lived in Juarez for at
nature of the effect produced, outweighed the supposed conflict, least two years, responded that he knew someone who might be
requiring the exercise of jurisdiction in this case. Hartford (D) interested in buying it. Keith then informed him for the first time that
appealed. the car had been stolen in El Paso, Texas, and offered Francesco
half the proceeds of any sale he could arrange. Francesco
Issue: assented, took the keys to the car, a Ford Fairmont, and agreed to
May jurisdiction be exercised over foreign conduct since no exist meet Keith the next day at 2:00 p.m. in The Kentucky Bar in Juarez.
in a situation where a person subject to regulation by two states Later, the same evening, as Francesco was approaching the car
can comply with the laws both? with his wife, he was arrested by Mexican police.
Held: After the defendant's motion to dismiss was denied, Francesco

Yes. Jurisdiction may be exercised over foreign conduct since no pleaded guilty, but reserved the right to appeal the jurisdictional
conflict exists in a situation where a person subject to regulation by issue.
two states can comply with the laws of both. The Sherman Act is
applicable to foreign conduct meant to produce and in fact produce Issue
some substantial effect in the United States. Even assuming that a WON US court had jurisdiction over the case?
court may decline to exercise Sherman Act jurisdiction over foreign
conduct, international comity would not prevent a U.S. court from Held
exercising jurisdiction in the circumstances alleged here. Since
there is no irreconcilable conflict between domestic and British law, NO.
the reinsurers (D) may not invoke comity. Affirmed.
Had the defendant been a US citizen, there would be no
Dissent: jurisdictional problem, for a country may supervise and regulate the
(Scalia, J.) The district court had subject matter jurisdiction over acts of its citizens both within and without its territory.
the Sherman Act claims, and it is now well established that the
Sherman Act applies extraterritorially, despite the presumption When an allegedly criminal act is performed by an alien on foreign
against extraterritoriality. Under the McCarran-Ferguson Act S soil, courts in the United States have long held that if jurisdiction is
2(b), states regulatory statutes are allowed to override the
TO GOD BE THE GLORY
to be extended over that act, it must be supported by either the

Protective or the Objective territorial theory. 2. The Jones vs. Ministry of Interior of Saudi
Arabia case (House of Lords of UK [2006])
Hoever, in this case, there is no basis for jurisdiction. Francesco is
not a US citizen (nationality principle). He has also not threatened
3. Argentine Republic v. Amerada Hess Shipping
the security of this country or interfered with its governmental
function (protective principle). Moreover, the objective territorial Corp., 488 US 428 (1989)
theory cannot also be applied for the fact that no conspiracy has
been alleged means that the theory does not support jurisdiction in 4. Saudi Arabia v. Nelson, 507 US 349 (1993)
the case. The defendant did not conspire to steal the car, and the
theft in no way depended on any act or intent of Francisco. 5. United States v. Noriega, 117 F.3d 1206 (11th Cir.
Whatever injury the owner of the car suffered was complete before 1997)
his chance meeting with Keith. There is no question, of course, that
Francesco’s conduct somehow affected a United States citizen. 6. The Pinochet case (In re: Pinochet, House of
Had he been successful in his enterprise, he would have prevented
Lords of UK [2001])
the stolen car from finding its way back to its owner. But that an act
affects the citizen of a state is not a sufficient basis for that state to
assert jurisdiction over the act. Facts:
On 11 September 1973, General Augusto Pinochet Ugarte
Circuit Judge Wisdom pointed out that there was no question that assumed power in Chile as a result of a military coup that
US law could reach the conduct of an American national abroad or overthrew the then government of President Allende. In 1998,
the conduct of an alien which was intended to have effect within Pinochet went to United Kingdom for medical treatment and
US. Here, however, the objective territorial theory did not apply, for surgery.
appellant’s act of receiving stolen property in Mexico was a In 1998, the Spanish Government applied for a warrant
separate offense from the theft of the vehicle in US. Hence, against Pinochet. A warrant was issued by Mr. Ronald Bartle,
appellant’s offense had no effect within the sovereign state of US. October 22 1998, without Pinochet being heard, despite a written
Neither was appellant charged with conspiracy to commit an request that he should be heard to oppose the application. That
offense within US. The court added that upon his release, appellant warrant was issued on the basis that there was evidence that he
would be subject to whatever sanctions that were applicable under was accused "between 1 January 1988 and December 1992 being
the law of Mexico. a public official intentionally inflicted severe pain or suffering on
another(Spanish citizens in Chile) in the performance or purported
5. United States v. Bowman, 260 US 94, (1922) performance of his official duties within the jurisdiction of the
Government of Spain.”
6. United States v. Romero-Galue, 757 F.2d 1147 (11th Pinochet is no longer the Head of the State at the time of
Cir. 1985) issuance of the arrest warrant and upon his arrest in 1998.
Pinochet was arrested by the English authorities with a view to
7. Eichmann Case (Attorney General of Government of extraditing him to Spain where a Spanish judge had issued an
Israel vs. Eichmann [ICJ, 1961]) international arrest warrant. Pinochet applied to have the arrest
warrant quashed.
8. United States v. Osama Bin Laden, 92 F. Supp. 2d 189 Pinochet claimed privilege and immunity from arrest on two
(S.D.N.Y. 2000) grounds:
1. That he was "President of the Government Junta of Chile"
from September 11, 1973 until June 26, 1974; and "Head of State
9. Wilson v. Girard, 354 U.S. 524 (1957)
of the Republic of Chile" from June 26, 1974 until March 11, 1990;
and
10. United States v. Alvarez-Machain, 504 U.S. 655 2. That he was not and had not been a subject of Spain and
(1992) accordingly no extradition crime had been identified.
11. Govt of Hongkong vs. Olalia, Jr., G.R. No. ISSUE:

153675, April 19, 2007 (supra) Whether Pinochet is entitled to immunity for acts(torture,
hostagetaking among others) done while Head of the State. NO
12. Eichmann Case (Attorney General of (3:2 vote)
Government of Israel vs. Eichmann [ICJ, 1961])
Lord Nicholls
supra • It is necessary to distinguish three different principles, two of
which have been codified in statutes and the third of which remains
13. (Ker-Frisbie Doctrine) Ker vs. Illinois, 119 U.S. a doctrine of the common law.
436 (1886) 1. State Immunity, formerly known as sovereign immunity,
codified in part 1 of the State Immunity Act 1978;
14. Frisbie vs. Collins, 342 U.S. 519 (1952) 2. The Act of State, an Anglo-American common law doctrine
; and
15. United States v. Alvarez-Machain, 504 U.S. 655 3. The personal immunity of the head of state, his family and
servants, codified in section 20 of the State Immunity Act 1978.
(1992)
Lord Nicholls: On State Immunity
H. Immunity from Jurisdiction • Section 1 of the State Immunity Act 1978 provides that "a State
is immune from the jurisdiction of the courts of the United
1. Verlinden B.V. v. Central Bank of Nigeria, 461 US Kingdom", subject to exceptions set out in the subsequent sections
480 (1983)
TO GOD BE THE GLORY
• By section 14(1) references to a state include references to the The bills of lading for a shipment of sugar contracted between Farr,
sovereign or other head of that state in his public capacity, its Whitlock & Co an American commodities broker was assigned by
government and any department of its government. Thus the Banco Nacional de Cuba (P), but another Cuban bank instituted
immunity of the state may not be circumvented by suing the head this action alleging conversion of the bills of lading and sought to
of state, or indeed, any other government official, in his official recover the proceeds thereof from Farr and to enjoin Sabbatino
capacity. (D), a court-appointed receiver from exercising control over such
proceeds.
• The words "in his public capacity" in section 14(1), read with
section 1, refer to the capacity in which the head of state is sued, Synopsis of Rule of Law
rather than the capacity in which he performed the act alleged to The judiciary, in line with the Act of State Doctrine will not examine
give rise to liability. the validity of a taking of property within its own territory by a
foreign sovereign government recognized by this country in the
• Section 1 of the Act deals with proceedings which, at the time absence of international agreements to the contrary, even if the
they are started, are in form or in substance proceedings against taking violates customary international law.
the state, so that directly or indirectly the state will be affected by
the judgment. In the traditional language of international law, it is Facts:
immunity ratione personae and not ratione materiae. It protects the A contract to purchase Cuban sugar from a wholly owned
state as an entity. It is not concerned with the nature of the subsidaiary of Compania Azucarera Vertientes-Camaquey de
transaction alleged to give rise to liability. Nor is it concerned with Cuba (CAV) a corporation organized under Cuban law was made
whether, in an action against an official or former official which is by Farr, Whitlock & Co. (Farr) an American commodities broker.
not in substance an action against the state, he can claim immunity The CAV stock was principally owned by United States residents.
on the ground that in doing the acts alleged he was acting in a The agreement was for Farr to pay for the sugar in New York upon
public capacity. Immunity on that ground depends upon the other the presentation of the shipping documents. After this deal, a law
principles. Part 1 of the Act does not apply to criminal proceedings was enacted in Cuba which empowered the government to
nationalize forcefully, expropriation of property or enterprise in
Lord Nicholls: Non-justiciability of Act of state which American nationals had an interest.
In Underhill v. Fernandez (1897) 169 U.S. 456: "Every sovereign
state is bound to respect the independence of every other Hence, the sugar which Farr had contracted was expropriated from
sovereign state, and the courts of one country will not sit in Compania Azucarera. Farr however entered into contracts which
judgment on the acts of the government of another done within its was similar to the one made with CAV with the Banco Para el
own territory." Comercio de Cuba, which was an instrumentality of the
government. This was done by Farr in order to obtain consent from
Lord Nicholls: Personal Immunity the Cuban government before a ship carrying sugar could leave
• Section 20 of the State Immunity Act 1978 confers personal Cuba.A bill of lading which was also an instrumentality of the
immunity upon a head of state, his family and servants by Cuban government was assigned by the bank to Banco Para el
reference to the privileges and immunities enjoyed by the head of Comercio de Cuba, who presented the bills and a sight draft as
a diplomatic mission under the Vienna Convention on Diplomatic required under the contract to Farr in New York in return for
Relations 1961. These immunities include, "immunity from the payment. After CAV notified Farr of its claim to the proceeds as
criminal jurisdiction of the receiving state." Accordingly there can rightful owner of the sugar, Farr refused the documents.
be no doubt that if Senator Pinochet had still been head of the
Chilean state, he would have been entitled to immunity This action of Farr resulted in a court order which appointed
Sabbatino (D) as receiver of CAV‘s New York assets and enjoined
Lord Nicholls: On Continued Immunity it from removing the payments from the state. Based on the
• Whether he continued to enjoy immunity after ceasing to be head allegation of the conversion of the bills of lading seeking to recover
of state turns upon the proper interpretation of article 39.2 of the the proceeds thereof from Farr and to enjoin Sabbatino (D), the
convention: "When the functions of a person enjoying privileges receiver from exercising dominion over such proceeds, the Banco
and immunities have come to an end, such privileges and Nacional (P) instituted this action. A summary judgment was
immunities shall normally cease at the moment when he leaves the granted against Banco Nacional (P) by the district court on the
country, or on expiry of a reasonable period in which to do so, but grounds that the Act of State Doctrine does not apply when the
shall subsist until that time, even in case of armed conflict. foreign act in question is in violation of international law. The court
However, with respect to acts performed by such a person in the of appeals also upheld this judgment.
exercise of his functions as a [head of state], immunity shall
continue to subsist." Issue:
Does the judiciary have the authority to examine the validity of a
Meaning: "A former head of state shall continue to enjoy immunity taking of property within its own territory by a foreign sovereign
from the criminal jurisdiction of the United Kingdom with respect to even if the taking violated international law?
acts performed by him in the exercise of his functions as a head of
state." Held:
No. The judiciary, in line with the Act of State Doctrine will not
Decision: examine the validity of a taking of property within its own territory
By a majority of 3:2 (Lords Hoffman, Nicholls and Steyn), their by a foreign sovereign government recognized by this country in
Lordships allowed the appeal and held that Pinochet was not the absence of international agreements to the contrary, even if the
entitled to immunity taking violates customary international law. Even in a situation
whereby international law has been violated, the clear implication
7. Banco Nacional de Cuba v. Sabbatino, 376 U.S. of past cases is that the Act of State Doctrine is applicable because
398 (1964) the Act of State doctrine does not deprive the courts of jurisdiction
once acquire over a case. The damages of adjudicating the
propriety of such expropriation acts, regardless of whether the
Brief Fact Summary
State Department has it did in this case, asserted that the act
TO GOD BE THE GLORY
violated international law are too far-reaching for the judicial branch
to attempt. Hence the judgment of the court of appeals is reverse 13. USA vs. Ruiz, 136 SCRA 487
and the case remanded back to the district court. (Harlan, J).
14. Holy See vs. Rosario, 238 SCRA 524 (supra)
8. Underhill v. Hernandez, 168 US 250 (1897;
supra) 15. Shauf vs. Court of Appeals, 191 SCRA 713
9. First National City Bank v. Banco Nacional de 16. US vs. Reyes, 219 SCRA 192
Cuba, 406 US 759 (1972)
17. WHO vs. Aquino, G.R. L-35131, November 29,
Brief Fact Summary 1972
First National City Bank (now Citibank) (D) claimed that the
payment on a letter of credit issued before the Cuban government
nationalized all assets would be settled with the value of its assets DOCTRINE:
seized in Cuba against a claim by Banco Para El Comercio Exterior Diplomatic immunity is essentially a political question and courts
de Cuba (Bancec) (P). should refuse to look beyond a determination by the executive
branch of the government, and where the plea of diplomatic
Synopsis of Rule of Law immunity is recognized and affirmed by the executive branch of the
Attributing liability among instrumentalities of a foreign state is not government, it is then the duty of the courts to accept the claim of
affected by the Foreign Sovereign Immunities Act of 1976 (FSIA). immunity upon appropriate suggestion by the principal law officer
of the government, or other officer acting under his direction.
Facts:
In 1960, Bancec (P) was established by the Cuban government FACTS:
which later sued Citibank (D) on a letter of credit. This led the Dr. Verstuyft, assigned by WHO to its regional office in Manila as
Cuban government to seize all of Citibank’s (D) assets in Cuba. Acting Assistant Director of Health Services, was suspected by the
Bancec (P) was subsequently dissolved and the Cuban Constabulary Offshore Action Center (COSAC) officers of carrying
government was substituted as plaintiff. With the assertion of its dutiable goods under the Customs and Tariff Code of the
right to set off the value of its seized assets in Cuban, Citibank (D) Philippines. Respondent Judge then issued a search warrant at the
counterclaimed. However, the plaintiff claimed immunity from suit instance of the COSAC officers for the search and seizure of the
as an instrumentality owned by a foreign government under the personal effects of Dr. Verstuyft, notwithstanding his being entitled
FSIA. Certiorari was however granted by the U.S. Supreme Court. to diplomatic immunity, pursuant to the Host Agreement executed
between Philippine Government and WHO. Such diplomatic
Issue: immunity carries with it, among other diplomatic privileges and
Does the attribution of liabilities among instrumentalities of a immunities, personal inviolability, inviolability of the official's
foreign state affected by the Foreign Sovereign Immunities Act of properties, exemption from local jurisdiction, and exemption from
1976? taxation and customs duties.
Held: Upon protest of WHO Regional Director Dr. Dy, DFA Sec. Carlos
No. Attributing liability among instrumentalities of a foreign state is Romulo personally wired Judge Aquino that Dr. Verstuyft is entitled
not affected by the Foreign Sovereign Immunities Act of 1976. The to immunity from search in respect for his personal baggage as
FSIA was not enacted to alter the substantive law of liability. When accorded to members of diplomatic missions pursuant to the Host
a claim is asserted by a foreign sovereign in the U.S court, the state Agreement and further requested for the suspension of the search
is barred from asserting a defense of sovereign immunity to defeat warrant. The Solicitor General accordingly joined the petitioner for
a setoff or counterclaim due to the consideration of a fair dealing. the quashal of the search warrant but respondent judge
Hence, the amount sought by Bancec (P) can be setoff with the nevertheless summarily denied the quashal. Hence, this petition
value of its assets seized by the Cuban government. (O’Connor, for certiorari and prohibition to set aside Judge Aquino’s refusal to
J) quash the search warrant. WHO joins Dr. Verstuyft in asserting
diplomatic immunity.
Discussion.
The notion that Cuban bank could claim sovereign immunity was
summarily dismissed by the court by the application of the ISSUE:
principles of both international and federal law. Any judgment Whether or not personal effects of Dr. Verstuyft can be exempted
entered in favor of an instrumentality of the Cuban government as from search and seizure under the diplomatic immunity.
stated under the Cuban Assets Control Regulations, would be
confiscated pending settlement of claims between Cuba and the HELD:
U.S. Yes. The executive branch of the Philippines has expressly
recognized that Verstuyft is entitled to diplomatic immunity,
10. W.S. Kirkpatrick & Co. v. Environmental pursuant to the provisions of the Host Agreement. The DFA
Tectonics Corp., 493 US 400 (1990) formally advised respondent judge of the Phil. Government's
official position. The SolGen, as principal law officer of the
government, likewise expressly affirmed said petitioner's right to
11. Alfred Dunhill of London, Inc. v. Republic of
diplomatic immunity and asked for the quashal of the
Cuba, 425 US 682 (1976) searchwarrant. It is a recognized principle of international law and
under our system of separation of powers that diplomatic immunity
12. Belgium v. Congo, International Court of Justice is essentially a political question and courts should refuse to look
case (2002); Arrest Warrant of 11 April 2000 beyond a determination by the executive branch of government,
(Democratic Republic of the Congo v. Belgium, and where the plea of diplomatic immunity is recognized by the
2002) executive branch of the government as in the case at bar, it is then
TO GOD BE THE GLORY
the duty of the courts to accept the claim of immunity upon 1. Philippine Government vs. Peoples Republic of
appropriate suggestion by the principal law officer of the China, Permanent Court of Arbitration (July,
government, the Sol Gen in this case, or other officer acting under 2016)
his discretion. Courts may not so exercise their jurisdiction by
seizure and detention of property, as to embarrass the executive
2. Lotus case (supra.)
arm of the government in conducting foreign relations.
3. North Sea Continental Shelf Case (supra.)

Philippines 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 Article VII on abuse of privilege, 4. Magallona, et al vs Ermita, et al., GR No. 187167,
calls for consultations between the Host State and the UN agency August 16, 2011
concerned and in case no satisfactory result is reached, for
submission to the ICJ. M. Air Space and Outer Space
The seriousness of the matter is underscored when the provisions N. International Human Rights Law
of RA 75 enacted since October 21, 1946 to safeguard the
jurisdictional immunity of diplomatic officials in the Philippines are
taken into account. Said Act declares as null and void writs or O. Environment
processes sued out or prosecuted whereby inter alia the person of
an ambassador or public minister is arrested or imprisoned or his 1. Trail Smelter Case (US vs. Canada Arbitration)
goods or chattels are seized or attached and makes it a penal
offense for "every person by whom the same is obtained or P. Peaceful Settlement of Disputes Between
prosecuted, whether as party or as attorney, and every officer
concerned in executing it" to obtain or enforce such writ or process.
States
1. Case of Certain Norwegian Loans (France v.

18. Minucher vs. Court of Appeals, 397 SCRA 244
Norway)(ICJ, 1957)
(2003)
2. Armed Activities on the Territory of the Congo
19. Liang vs. People, G.R. No. 125865, January 28,
(Democratic Republic of the Congo v. Rwanda)
2000
(ICJ, 2002)
20. Republic of Indonesia vs. Vinzon, G.R. No.
3. Military and Paramilitary Activities in and
154705, June 26, 2003
Against Nicaragua [Nicaragua vs. USA, ICJ
Report (1986)] (supra)
I. State Responsibility
4. Committee of US Citizens Living in Nicaragua v.
1. Youmans Claim (U.S. vs. Mexico, General Reagan, 859 F.2d 929 (1988)
Claims Commission, 1926)
5. Legality of the Threat or Use of Nuclear
2. Tehran Hostages Case (United States vs. Iran, Weapons Case (ICJ Advisory Opinion, 1996)
ICJ 1980) supra
3. Nicaragua vs. US (supra.) 6. Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, 473 US 614 (1985)
4. Prosecutor v. Tadic [case before the
International Criminal Tribunal for the former 7. Parsons & Whittemore Overseas Co. v. Societe
Yugoslavia (ICTY), 1999] Generale de L’Industrie du Papier (RAKTA), 508
F.2d 969 (2d Cir. 1974)
5. Interhandel Case (Switzerland vs. U.S., ICJ
Report, 1959) 8. Philippines vs. China (October, 2015)
J. Acquisition of Territory Q. International wars, civil wars and the right

to self-determination: jus ad bellum
1. Island of Palmas case supra
1. Corfu Channel Case (U.K. vs. Albania, ICJ
K. Legal Effects of Changes of Sovereignty Report, 1949)
over Territory (State Succession)
2. Nicaragua vs. U.S., supra.
1. (Principle of “uti possidetis juris”) Frontier
Dispute Case (Burkina Faso/Mali) [ICJ, 1986] 3. Caroline case, supra.
L. The Law of the Sea 4. Nicaragua vs. U.S., supra.

TO GOD BE THE GLORY
5. Falkland Islands Case, supra.
6. Corfu Channel Case, supra.
R. Means of Waging War and Criminal

Responsibility: jus in bello
1. Prosecutor vs. Limaj, ICTY-IT-03-66-T, Nov. 30,

2005
2. Legality of the Threat or Use of Nuclear

Weapons Advisory Opinion, ICJ 1996) supra
3. Prosecutor vs. Tadic, ICTY Judgment, Appeals

Chamber, Oct. 2, 1995
4. Prosecutor vs. Bagilishema, ICTR-95-1A-T, June

7, 2001
5. Pimentel vs. Romulo, G.R. No. 158088, July 6,

2005 (supra)
Facts:
On July 17, 1998, the Rome Statute was opened for signature at
its headquarter in New York. On December 28, 2000, three days
before its deadline for signing, the Philippines through its Charge
d’ Affairs, Enrique A. Manalo signed the Statute. By its provision,
however, it is requiring that it be ratified by the accepting states.
Senator Aquilino Pimentel, file this petition to compel the Hon.

Alberto Romulo (Executive Secretary) and Hon. Blas Ople
(Department of Foreign Affairs) – respondents in this case – to
transmit the signed document to the Senate for ratification.
Hon. Alberto Romulo and Hon. Blas Ople, on the other hand, argue
that they as representative of the Executive Department have no
duty to transmit the Rome Statute to the Senate for concurrence.
ISSUE:
Who has the power to ratify the Rome Statute?
HELD:
The President, being the head of state, is regarded as the sole
organ and authority in external relations and is the county’s sole
representative with foreign nations. As the chief architect of foreign
policy, the President acts as the country’s mouthpiece with respect
to international affairs. Hence, the President is vested with the
authority 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.
The role of the Senate, however, is limited only to giving or

withholding its consent, or concurrence, to the ratification.
Thus, this petition is DISMISSED. This Court has no jurisdiction

over actions seeking to enjoin the President in the performance of
his official duties.
S. The Charter and the organs of the UN

TO GOD BE THE GLORY

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Public International Law Case Digests Compilation (based on Atty.

402 Case Digest Team (A.Y. 2017-2018)

402 Case Digest Team (A.Y. 2017-2018)

402 Case Digest Team (A.Y. 2017-2018)

as against Norway in as much as she had always opposed any

402 Case Digest Team (A.Y. 2017-2018)

402 Case Digest Team (A.Y. 2017-2018)

The use of force against the territorial integrity or political

C. International Humanitarian Law applicable in armed conflict

a national has jurisdiction over sailors regarding incidents

Hasselt branch of the canal joining the Meuse and

(S) Similarly, no inconsistency with Belgium's

That the Borgharen barrage has been

– Treaty doesn’t forbid the

402 Case Digest Team (A.Y. 2017-2018)

It bears stressing at this point that the aforesaid principle do not

Given that rally would be held in the public spaces Facts:

On 1988, Bahrain presented “the Bahraini formula” to Qatar which Facts:

2) As regards the effects of the reservation in relations between Ruling:

7. Appeal Relating to the Jurisdiction of the ICAO

402 Case Digest Team (A.Y. 2017-2018)

In-depth notes: the Court's view, therefore, the notification of termination by

radically transforms the extent of the obligations undertaken,

402 Case Digest Team (A.Y. 2017-2018)

402 Case Digest Team (A.Y. 2017-2018)

402 Case Digest Team (A.Y. 2017-2018)

the municipal sphere. Under the doctrine of incorporation as

402 Case Digest Team (A.Y. 2017-2018)

proceedings before it. offenses inherent in or directly connected with invasion.”

Secretary, Rufino Hechanova, authorized the importation of

d. capacity to enter into relations with the other states.

E. States and Governments Issues:

3. What is territorial sovereignty? Territorial sovereignty is, in

402 Case Digest Team (A.Y. 2017-2018)

Facts: United Nations Interim Administration Mission in Kosovo (UNMIK),

that is relevant is the state. Citing The Admittance case:

402 Case Digest Team (A.Y. 2017-2018)

considered that Guatemala had not recognized Liechtenstein's title State?

Held: Sherman Act in the insurance field subject only to a narrow

Held: After the defendant's motion to dismiss was denied, Francesco

to be extended over that act, it must be supported by either the

11. Govt of Hongkong vs. Olalia, Jr., G.R. No. ISSUE:

3. North Sea Continental Shelf Case (supra.)

1. Case of Certain Norwegian Loans (France v.

J. Acquisition of Territory Q. International wars, civil wars and the right

L. The Law of the Sea 4. Nicaragua vs. U.S., supra.

402 Case Digest Team (A.Y. 2017-2018)

5. Falkland Islands Case, supra.

6. Corfu Channel Case, supra.

R. Means of Waging War and Criminal

1. Prosecutor vs. Limaj, ICTY-IT-03-66-T, Nov. 30,

2. Legality of the Threat or Use of Nuclear

3. Prosecutor vs. Tadic, ICTY Judgment, Appeals

4. Prosecutor vs. Bagilishema, ICTR-95-1A-T, June

5. Pimentel vs. Romulo, G.R. No. 158088, July 6,

Senator Aquilino Pimentel, file this petition to compel the Hon.

The role of the Senate, however, is limited only to giving or

Thus, this petition is DISMISSED. This Court has no jurisdiction

E. States and Governments Issues: 