PUBLIC INTERNATIONAL LAW

FACULTY OF CIVIL LAW

2 – AA

CALPO, Justin Ben

DEQUITO, Leo Darwin
MACALINAO, Shara Mae
PEÑAFLOR, Franchezka Venize
SANTOS, Nikki Tricia

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 KURODA V JALANDONI
G.R. No. L-2662; March 26, 1949

FACTS:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army

and Commanding General of the Japanese Imperial Forces in The Philippines during a
period covering 19433 and 19444 who is now charged before a military Commission
convened by the Chief of Staff of the Armed forces of the Philippines with having
unlawfully disregarded and failed "to discharge his duties as such command, permitting
them to commit brutal atrocities and other high crimes against noncombatant civilians
and prisoners of the Imperial Japanese Forces in violation of the laws and customs of
war" — comes before this Court seeking to establish the illegality of Executive Order
No. 68 of the President of the Philippines: to enjoin and prohibit respondents Melville S.
Hussey and Robert Port from participating in the prosecution of petitioner's case before
the Military Commission and to permanently prohibit respondents from proceeding with
the case of petitioners.

ISSUE:
1. WON Executive Order no. 86, in establishing a National War Crimes Office
prescribing rule and regulation governing the trial of accused war criminals, is
constitutional
2. If so, even if the Philippines is not a signatory, WON the Military Commission has
jurisdiction to try petitioner for the crimes that may be prosecuted under the
Hague Convention on Rules and Regulations covering Land Warfare
3. WON Attorneys Hussey and Port have no personality as prosecution for the
United State, not being a party in interest in the case

RULING:

1. YES. Executive Order No. 68, establishing a National War Crimes Office
prescribing rule and regulation governing the trial of accused war criminals, was
issued by the President of the Philippines on the 29th days of July, 1947 This
Court holds that this order is valid and constitutional. Article 2 of our Constitution
provides it in its section 3. In accordance with the generally accepted principle of
international law of the present day including the Hague Convention the Geneva
Convention and significant precedents of international jurisprudence established
by the United Nation, all those person military or civilian who have been guilty of
planning preparing or waging a war of aggression and of the commission of
crimes and offenses consequential and incidental thereto in violation of the laws
and customs of war, of humanity and civilization are held accountable therefor.
Consequently, in the promulgation and enforcement of Execution Order No. 68
the President of the Philippines has acted in conformity with the generally
accepted and policies of international law which are part of our Constitution. The
promulgation of said executive order is an exercise by the President of his power
as Commander in chief of all our armed forces. Consequently, the President as
Commander in Chief is fully empowered to consummate this unfinished aspect of
war namely the trial and punishment of war criminal through the issuance and
enforcement of Executive Order No. 68.
2. YES. It cannot be denied that the rules and regulation of the Hague and Geneva
conventions form, part of and are wholly based on the generally accepted
principals of international law. In facts these rules and principles were accepted
by the two belligerent nations, the United State and Japan, who were signatories
to the two Convention, such rule and principles therefore form part of the law of
our nation, even if the Philippines was not a signatory. Furthermore, when the
crimes charged against petitioner were allegedly committed the Philippines was

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 under the sovereignty of United States and thus, we were equally bound
together with the United States and with Japan to the right and obligation
contained in the treaties between the belligerent countries. These rights and
obligation were not erased by our assumption of full sovereignty. If at all our
emergency as a free state entitles us to enforce the right on our own of trying
and punishing those who committed crimes against crimes against our people.
3. YES. In the first place, respondent Military Commission is a special military
tribunal governed by a special law and not by the Rules of court which govern
ordinary civil court. It has already been shown that Executive Order No. 68 which
provides for the organization of such military commission is a valid and
constitutional law. There is nothing in said executive order which requires that
counsel appearing before said commission must be attorneys qualified to practice
law in the Philippines in accordance with the Rules of Court. Secondly, the
appointment of the two American attorneys is not violative of our nation
sovereignty. It is only fair and proper that United States, which has submitted
the vindication of crimes against her government and her people to a tribunal of
our nation should be allowed representation in the trial of those very crimes. If
there has been any relinquishment of sovereignty it has not been by our
government but by the United State Government which has yielded to us the trial
and punishment of her enemies. The least that we could do in the spirit of
comity is to allow them representation in said trials.

The Military Commission having been convened by virtue of a valid law with jurisdiction
over the crimes charged which fall under the provisions of Executive Order No. 68, and
having said petitioner in its custody, this Court will not interfere with the due process of
such Military commission.

For all the foregoing the petition is denied with costs de officio.

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 CO KIM CHAN vs. VALDEZ TAN KEH

FACTS:
Petitioner Co Kim Cham had a pending Civil Case with the Court of First Instance
of Manila initiated during the time of the Japanese occupation. The respondent judge,
Judge Arsenio Dizon, refused to continue hearings on the case which were initiated
during the Japanese military occupation on the ground that the proclamation issued by
General MacArthur that “all laws, regulations and processes of any other government in
the Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free of enemy occupation and control” had the effect
of invalidating and nullifying all judicial proceedings and judgments of the court of the
Philippines during the Japanese military occupation, and that the lower courts have no
jurisdiction to take cognizance of and continue judicial proceedings pending in the
courts of the defunct Republic of the Philippines in the absence of an enabling law
granting such authority. Respondent, additionally contends that the government
established during the Japanese occupation were no de facto government.

ISSUES:
1. Whether the judicial acts and proceedings of the court existing in the Philippines
under the Philippine Executive Commission and the Republic of the Philippines
were good and valid and remained so even after the liberation or reoccupation of
the Philippines by the United States and Filipino forces;
2. (2)Whether the proclamation issued on October 23, 1944, by General Douglas
MacArthur, Commander in Chief of the United States Army, in which he declared
"that all laws, regulations and processes of any of the government in the
Philippines than that of the said Commonwealth are null and void and without
legal effect in areas of the Philippines free of enemy occupation and control," has
invalidated all judgements and judicial acts and proceedings of the said courts;
and
3. If the said judicial acts and proceedings have not been invalidated by said
proclamation, whether the present courts of the Commonwealth, which were the
same court existing prior to, and continued during, the Japanese military
occupation of the Philippines, may continue those proceedings pending in said
courts at the time the Philippines were reoccupied and liberated by the United
States and Filipino forces, and the Commonwealth of the Philippines were
reestablished in the Islands.
RULING:

1. The governments by the Philippine Executive Commission and the Republic of

the Philippines during the Japanese military occupation being de
facto governments, it necessarily follows that the judicial acts and proceedings of
the courts of justice of those governments, which are not of a political
complexion, were good and valid, and, by virtue of the well-known principle of
postliminy (postliminium) in international law, remained good and valid after the
liberation or reoccupation of the Philippines by the American and Filipino forces
under the leadership of General Douglas MacArthur. According to that well-
known principle in international law, the fact that a territory which has been
occupied by an enemy comes again into the power of its legitimate government
of sovereignty, "does not, except in a very few cases, wipe out the effects of acts
done by an invader, which for one reason or another it is within his competence
to do. Thus judicial acts done under his control, when they are not of a political
complexion, administrative acts so done, to the extent that they take effect
during the continuance of his control, and the various acts done during the same
time by private persons under the sanction of municipal law, remain good. Were
it otherwise, the whole social life of a community would be paralyzed by an
invasion; and as between the state and the individuals the evil would be scarcely

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 less, — it would be hard for example that payment of taxes made under duress
should be ignored, and it would be contrary to the general interest that the
sentences passed upon criminals should be annulled by the disappearance of the
intrusive government ." (Hall, International Law, 7th ed., p. 518.) And when the
occupation and the abandonment have been each an incident of the same war
as in the present case, postliminy applies, even though the occupant has acted
as conqueror and for the time substituted his own sovereignty as the Japanese
intended to do apparently in granting independence to the Philippines and
establishing the so-called Republic of the Philippines. (Taylor, International Law,
p. 615.)

That not only judicial but also legislative acts of de facto governments, which are
not of a political complexion, are and remain valid after reoccupation of a territory
occupied by a belligerent occupant, is confirmed by the Proclamation issued by
General Douglas MacArthur on October 23, 1944, which declares null and void all
laws, regulations and processes of the governments established in the Philippines
during the Japanese occupation, for it would not have been necessary for said
proclamation to abrogate them if they were invalid ab initio.

2. The phrase “processes of any other government” is broad and may refer not only
to the judicial processes, but also to administrative or legislative, as well as
constitutional, processes of the Republic of the Philippines or other governmental
agencies established in the Islands during the Japanese occupation. Taking into
consideration the fact that, as above indicated, according to the well-known
principles of international law all judgements and judicial proceedings, which are
not of a political complexion, of the de facto governments during the Japanese
military occupation were good and valid before and remained so after the
occupied territory had come again into the power of the titular sovereign, it
should be presumed that it was not, and could not have been, the intention of
General Douglas MacArthur, in using the phrase “processes of any other
government” in said proclamation, to refer to judicial processes, in violation of
said principles of international law.

3. Although in theory the authority of the local civil and judicial administration is
suspended as a matter of course as soon as military occupation takes place, in
practice the invader does not usually take the administration of justice into his
own hands, but continues the ordinary courts or tribunals to administer the laws
of the country which he is enjoined, unless absolutely prevented, to respect. An
Executive Order of President McKinley to the Secretary of War states that “in
practice, they (the municipal laws) are not usually abrogated but are allowed to
remain in force and to be administered by the ordinary tribunals substantially as
they were before the occupation. This enlightened practice is, so far as possible,
to be adhered to on the present occasion.” And Taylor in this connection says:
“From a theoretical point of view it may be said that the conqueror is armed with
the right to substitute his arbitrary will for all pre-existing forms of government,
legislative, executive and judicial. From the stand-point of actual practice such
arbitrary will is restrained by the provision of the law of nations which compels
the conqueror to continue local laws and institution so far as military necessity
will permit.” Undoubtedly, this practice has been adopted in order that the
ordinary pursuits and business of society may not be unnecessarily deranged,
inasmuch as belligerent occupation is essentially provisional, and the government
established by the occupant of transient character.

5

 BORIS MEJOFF v. DIRECTOR OF PRISONS
G.R. No. L-4252. September 26, 1951

FACTS:

The petitioner Boris Mejoff is an alien of Russian descent who was brought to
this country from Shanghai as a secret operative by the Japanese forces during the
latter's regime in these Islands. Upon liberation he was arrested as a Japanese spy, by
U.S. Army Counter Intelligence Corps. Later he was handed to the Commonwealth
Government for disposition in accordance with Commonwealth Act No. 682. Thereafter,
the People's Court ordered his release.
But the deportation Board taking his case up, found that having no travel documents
Mejoff was illegally in this country, and consequently referred the matter to the
immigration authorities. After the corresponding investigation, the Board of
Commissioners of Immigration declared that he had entered the Philippines illegally in
1944, without inspection and admission by the immigration officials at a designation
port of entry and, therefore, it ordered that he be deported on the first available
transportation to Russia.

In May 1948 he was transferred to the Cebu Provincial Jail together with three
other Russians to await the arrival of some Russian vessels. In July and August of that
year two boats of Russian nationality called at the Cebu Port, however, they refused to
take petitioner and his companions alleging lack of authority to do so. After repeated
failures to ship the deportee abroad, the authorities removed him to Bilibid Prison at
Muntinglupa where he has been confined up to the present time, inasmuch as the
Commissioner of Immigration believes it is for the best interests of the country to keep
him under detention while arrangements for his departure are being made.

ISSUE:
Whether or not the writ of habeas corpus be granted to release petitioner from
detainment (YES)

RULING:
Aliens illegally staying in the Philippines have no right of asylum therein
(Sowapadji vs. Wixon, Sept. 18, 1946, 157 F. ed., 289, 290), even if they are
"stateless," which the petitioner claims to be. It is no less true however, as impliedly
stated in this Court's decision, supra, that foreign nationals, not enemy against whom
no charge has been made other than that their permission to stay has expired, may not
indefinitely be kept in detention.

In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the
power to release from custody an alien who has been detained an unreasonably long
period of time by the Department of Justice after it has become apparent that although
a warrant for his deportation has been issued, the warrant cannot be effectuated;" that
"the theory on which the court is given the power to act is that the warrant of
deportation, not having been able to be executed, is functus officio and the alien is
being held without any authority of law."
The Supreme court held that Mejoff should be released from custody and
to be instituted under reasonable surveillance of the immigration in order to
make sure that he intends to keep peace and be available when the
Government is set to finally deport him. Under the Doctrine of Incorporation,
the Philippine adopts the generally accepted principles of international law, forming
it as part of the law of the land, without needing any machinery to convert it
to domestic law. Moreover, the Philippines is a member of the United Nations

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in its Resolution entitled “Universal Declaration of Human Rights” in proclaiming
that life and liberty and all other fundamental rights shall be applied to all
human beings. The argument or the stand that Mejoff is a threat to the
security of the country is no longer apparent since the Japan is no longer at
war with the United States of America or the Philippines.

7

 BAER v. TIZON
GR No. L-24924 May 3, 1974

FACTS:
Edgardo Gener, engaged in the business of logging, filed a complaint for
injunction with the Court of First Instance of Bataan against petitioner, Donald Baer,
Commander of the United States Naval Base in Olongapo alleging that the American
Naval Base authorities stopped his logging operations. Baer countered stating that the
suit was one against a foreign sovereign without its consent; the subject matter of the
action being official acts done by him for and in behalf of the United States of
America. Gener, however, responding by pointing out that "a private citizen claiming
title and right of possession of certain property may, to recover possession of said
property, sue as individuals, officers and agents of the Government, who are said to be
illegally withholding the same from him..”

ISSUE:
WON the doctrine of immunity from suit is applicable in the case

RULING:
YES. The invocation of the doctrine of immunity from suit of a foreign state
without its consent is appropriate. In Coleman v. Tennessee, the Court held that a
foreign army, permitted to march through a friendly country or to be stationed in it, by
permission of its government or sovereign, is exempt from the civil and criminal
jurisdiction of the place or country. After the conclusion of the Philippine-American
Military Bases Agreement, the treaty provisions should control on such matter, the
assumption being that there was a manifestation of the submission to jurisdiction on
the part of the foreign power whenever appropriate. The findings of the Mutual Defense
Board, an agency of both the Philippine and United States Governments that "continued
logging operation by Mr. Gener within the boundaries of the U.S. Naval Base would not
be consistent with the security and operation of the Base is conclusive upon the
respondent Judge. The doctrine of state immunity is not limited to cases which would
result in a pecuniary charge against the sovereign or would require the doing of an
affirmative act by it. Prevention of a sovereign from doing an affirmative act pertaining
directly and immediately to the most important public function of any government - the
defense of the state — is equally as untenable as requiring it to do an affirmative act.

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 WIGBERTO E. TAÑADA, ET. AL vs. EDGARDO ANGARA, ET. AL
G.R. No. 118295 | May 2, 1997

FACTS:
Petitioners prayed for the nullification of the concurrence of the Philippine Senate
in the ratification by the President of the Philippines of the Agreement Establishing the
World Trade Organization and for the prohibition of its implementation and enforcement
through the release and utilization of public funds, the assignment of public officials and
employees, as well as the use of government properties and resources by respondent-
heads of various executive offices concerned therewith. They contended that WTO
agreement violates the mandate of the 1987 Constitution to develop a self-reliant and
independent national economy effectively controlled by Filipinos to give preference to
qualified Filipinos and to promote the preferential use of Filipino labor, domestic
materials and locally produced goods as the WTO requires the Philippines to place
nationals and products of member-countries on the same footing as Filipinos and local
products and that the WTO intrudes, limits and/or impairs the constitutional powers of
both Congress and the Supreme Court.

ISSUE:
Whether or not provisions of the Agreement Establishing the World Trade
Organization unduly limit, restrict and impair Philippine sovereignty specifically the
legislative power which, under Sec. 2, Article VI, 1987 Philippine Constitution is vested
in the Congress of the Philippines.

RULING:
NO. While sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is however subject to restrictions and limitations
voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the
family of nations. Unquestionably, the Constitution did not envision a hermit-type
isolation of the country from the rest of the world. In its Declaration of Principles and
State Policies, the Constitution adopts the generally accepted principles of international
law as part of the law of the land, and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity, with all nations. By the doctrine of incorporation, the
country is bound by generally accepted principles of international law, which are
considered to be automatically part of our own laws. One of the oldest and most
fundamental rules in international law is pacta sunt servanda, which means
international agreements must be performed in good faith. A treaty engagement is not
a mere moral obligation but creates a legally binding obligation on the parties. A state
which has contracted valid international obligations is bound to make in its legislations
such modifications as may be necessary to ensure the fulfillment of the obligations
undertaken. By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of their state
power in exchange for greater benefits granted by or derived from a convention or
pact. After all, states, like individuals, live with coequals, and in pursuit of mutually
covenanted objectives and benefits, they also commonly agree to limit the exercise of
their otherwise absolute rights. The Senate Act, after deliberation and voting, of
voluntarily and overwhelmingly giving its consent to the WTO Agreement thereby
making it a part of the law of the land, is a legitimate exercise of its sovereign duty and
power. As to whether such exercise was wise, beneficial or viable is outside the realm
of judicial inquiry and review. While the Constitution indeed mandates a bias in favor of
Filipino goods, services, labor and enterprises, at the same time, it recognizes the need
for business exchange with the rest of the world on the bases of equality and
reciprocity and limits protection of Filipino enterprises only against foreign competition
and trade practices that are unfair. In other words, the Constitution did not intend to
pursue an isolationist policy. It did not shut out foreign investments, goods and services
in the development of the Philippine economy. While the Constitution does not

9

encourage the unlimited entry of foreign goods, services and investments into the
country, it does not prohibit them either. In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition that is unfair. The WTO
reliance on “most favored nation,” “national treatment,” and “trade without
discrimination” cannot be struck down as unconstitutional as in fact they are rules of
equality and reciprocity that apply to all WTO members. Aside from envisioning a trade
policy based on equality and reciprocity, the fundamental law encourages industries
that are competitive in both domestic and foreign markets, thereby demonstrating a
clear policy against a sheltered domestic trade environment, but one in favor of the
gradual development of robust industries that can compete with the best in the foreign
markets.

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 ARTHUR LIM V EXECUTIVE SECRETARY
G.R. No. 151445; April 11, 2002

FACTS:
In 2002, the Armed Forces of the United States started to arrive in the
Philippines to participate in the Balikatan 02-1 pursuant to the VFA (Visiting Forces
Agreement) in 1999 and an MDT (Mutual Defense Treaty) entered into by the Philippine
Government and United States Government in 1951. The entry of the American troops
in the Philippines is partly rooted from the campaign of US President George W. Bush
against international terrorism as a result of terrorist attacks in United States which was
the cause of numerous loss of lives.

Petitioners filed a petition for certiorari and prohibition and attacking the
constitutionality of Balikatan 02-1 or the joint exercise.

ISSUE:
1. WON the Balikatan 02-1 is covered by the VFA

RULING:
YES. The VFA permits the US personnel to engage, on an impermanent basis, in
activities, the exact meaning of which was undefined. The permit under VFA grants US
personnel a wide scope of undertaking subject only to approval of the Philippine
Government. In general US personnel must abstain from any activities inconsistent with
the agreement, and in particular, from any political activities. All other activities, in
other words, are fair game.

In aid of the case at bar, the Vienna Convention on the Law of Treaties Article 31
and 32 which contains the provisions governing the interpretation of international
agreements. The cardinal rule of interpretation must involve an examination of the text,
which is presume to verbalize the intentions of the parties.

The word “activities” in the view of the court it was deliberately made that way
to give both parties a leeway for negotiations. In this manner, the US forces may
sojourn in the territory of the Philippines for purposes other than military. Under these
auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to
assume that Balikatan 02-1, a mutual anti-terrorism, advising, assisting and training
exercise falls under the context of the agreement.

From the facts obtaining, the court finds that the Balikatan 02-1 joint military
exercises has not intruded into that penumbra of error that would otherwise call for
correction on the part of the court. The respondents did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction. Wherefore, the petition and
petition-in-intervention are hereby dismissed without prejudice to the filing of new
petition sufficient in form and substance in the proper regional trial court.

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 YAMASHITA v. STYER

FACTS:
Petitioner Tomoyuki Yamashita, the commanding general of the 14th army group
of the Japanese Imperial Army in the Philippines, after his surrender became a prisoner
of war of the United States of America but was later removed from such status and
placed in confinement as an accused war criminal charged before an American Military
Commission constituted by respondent Lieutenant General Styer, Commanding General
of the United States Army Forces, Western Pacific.

Filing for habeas corpus and prohibition against respondent, he asks that he be
reinstated to his former status as prisoner of war, and that the Military Commission be
prohibited from further trying him. He questions, among others, the jurisdiction of said
Military Commission.

ISSUE:
Whether or not the petition for habeas corpus should be granted

RULING:
We believe and so hold that the petition for habeas corpus is untenable. It seeks
no discharge of petitioner from confinement but merely his restoration to his former
status as a prisoner of war, to be interned, not confined. The relative difference as to
the degree of confinement in such cases is a matter of military measure, disciplinary in
character, beyond the jurisdiction of civil courts. Neither may the petition for prohibition
prosper against Lt. Gen. Wilhelm D. Styer. The military Commission is not made party
respondent in this case, and although it may be acting, as alleged, without jurisdiction,
no order may be issued in these case proceedings requiring it to refrain from trying the
petitioner.

Furthermore, this Court has no jurisdiction to entertain the petition even if the
commission be joined as respondent. As we have said in Raquiza vs. Bradford (pp. 50,
61, ante), ". . . an attempt of our civil courts to exercise jurisdiction over the United
States Army before such period (state of war) expires, would be considered as a
violation of this country's faith, which this Court should not be the last to keep and
uphold." (Emphasis supplied) We have said this in a case where Filipino citizens were
under confinement, and we can say no less in a case where the person confined is an
enemy charged with the most heinous atrocities committed against the American and
Filipino peoples.

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 EREMES KOOKOORITCHKIN v. THE SOLICITOR GENERAL
G.R. No. L-1812, August 27, 1948

FACTS:
Petitioner is a native-born Russian, having first seen the light of day on
November 4, 1897 in the old City of St. Petersburg, Russia. He grew up as a citizen of
the defunct Imperial Russian Government under the Czars. World War I found him in
the military service of this Government. In 1915 he volunteered for the Imperial Russian
navy and was sent to the Navy Aviation School. He fought with the Allies in the Baltic
Sea, was later transferred to the eastern front in Poland, and much later was sent as a
navy flier to Asia Minor. However, he has never acquired Russian citizenship. After his
assignments, he went back to the Philippines. The applicant is married to a Filipino by
the name of Concepcion Segovia, with whom he has one son named Ronald
Kookooritchkin. He is at present studying in Saint Agnes Academy, at Legaspi, Albay, a
school duly recognized by the Government. filed with the lower court a petition for
naturalization, accompanied with supporting affidavits of two citizens, copy of a
declaration of intention sworn in July, 1940, and proper notice of the hearing.
The petition was finally set for hearing on December 18, 1941, but it was held on
that date because the province was invaded by the Japanese forces on December 14,
and the case remained pending until the records were destroyed during the military
operations for liberation in 1945. The case was declared reconstituted on 1947. On the
same day resolution was issued granting the petition. In granting the resolution, trial
court ruled that although a Russian by birth he is not a citizen of Soviet Russia. He
disclaims allegiance to the present Communist Government of Russia. He is, therefore,
a stateless refugee in this country, belonging to no State, much less to the present
Government of the land of his birth to which he is uncompromisingly opposed.
The respondent challenges the resolution on the ground that Petitioner failed to
satisfy the requirements provided by the Revised Naturalization Law.

ISSUE:
1. Whether or not the petitioner’s declaration isvalid under the Naturalization Law
of the Philippines (YES)
2. Whether or not learning the Filipino language is a requisite for naturalization
(Qualified)

RULING:
1. The Revised Naturalizarion Law of the Philippines Section 5 provides that “No
declaration shall be valid until entry for permanent residence has been
established and a certificate showing the date, place and manner of his arrival
has been issued.” However, it is undisputed fact that the petitioner has been
continuously residing in the Philippines for about 25 years, without having been
molested by the authorities, who are presumed to have been regularly
performing their duties and would have arrested petitioner if his residence is
illegal, as rightly contended by appellee, can be taken as evidence that he is
enjoying permanent residence legally. That a certificate of arrival has been
issued is a fact that should be accepted upon the petitioner's undisputed
statement in his declaration of July, 1940, that the certificate cannot be
supposed that the receiving official would have accepted the declaration without
the certificate mentioned therein as attached there p conclude that petitioner's
declaration is valid under section 5 of the Naturalization Law.
2. The law has not set a specific standard of the principal Philippine languages. A
great number of standards can be set. There are experts in English who say that
Shakespeare has used in his works 15,000 different English words, and the
King's Bible about 10,000, while about 5,000 are used by the better educated
persons and about 3,000 by the average individual. While there may be persons
ambitious enough to have a command of the about 600,000 words recorded in

13

the Webster's International Dictionary, there are authorities who would reduce
basic English to a few hundred words. Perhaps less than one hundred well
selected words will be enough for the ordinary purposes of daily life. It is
sufficient that the petitioner can speak and understand Bicolano, one of the
dialects in the Philippines and more commonly used in the place where he
resides.

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 NORTH SEA CONTINENTAL SHELF CASE
February 20, 1969

FACTS:
The case is concerns the delimitation of the continental shelf areas in the North
Sea between Germany and Denmark, and Germany and Netherlands beyond the partial
boundaries previously agreed upon by these States. There was a difference in the
applicability of principles in the rules of delimitation. The Netherlands and Denmark had
drawn partial boundary lines based on the equidistance principles (every point in the
boundary is equidistant from the nearest points of the baselines from which the breath
of the territorial sea of each State is measured); while Germany believes in the just and
equitable principle (each coastal state is entitled to a just and equitable share).
Netherland and Denmark’s agreement for prolongation cannot take place as Germany
asserts that due to its concave coastline, such a line would result in her losing out on
her share of the continental shelf based on proportionality to the length of its North Sea
coastline, one totally inequitable for her.

ISSUE:
Whether or not Germany is under a legal obligation to accept the equidistance-
special circumstances principle, contained in Article 6 of the Geneva Convention on the
Continental Shelf of 1958, either as a customary international law rule or on the basis of
the Geneva Convention

RULING:
The use of the equidistance method had not crystallised into customary law and
the method was not obligatory for the delimitation of the areas in the North Sea related
to the present proceedings. Article 6 of the Geneva Convention stated that unless the
parties had already agreed on a method for delimitation or unless special circumstances
exist, the equidistance method would apply. Germany had signed, but not ratified, the
Geneva Convention, while Netherlands and Denmark were parties to the Convention.
Only a ‘very definite very consistent course of conduct on the part of a State would
allow the Court to presume that the State had somehow become bound by a treaty (by
a means other than in the formal manner: i.e. ratification) when the State was ‘at all
times fully able and entitled to…’ accept the treaty commitments in a formal manner.
The Court held that Germany had not unilaterally assumed obligations under the
Convention. Also, the Court, at one point, believed that the existence of a situation of
estoppel would have allowed Article 6 to become binding on Germany – but held that
Germany’s action did not support an argument for estoppel. The Court also held that
the mere fact that Germany may not have specifically objected to the equidistance
principle as contained in Article 6, is not sufficient to state that the principle is now
binding upon it. In conclusion, the Court held that Germany had not acted in
any manner so as to incur obligations contained in Article 6 of the Geneva Convention.
The equidistance–special circumstances rule was not binding on Germany by way of
treaty law.

In addition, the Court held that the principle of equidistance, as contained in

Article 6 did not form a part of existing or emerging customary international law at the
time of drafting the Convention. Even after the Convention entered into force, Article 6
of the Convention had not attained a customary law status. For a customary rule to
emerge the Court held that it needed: (1) very widespread and representative
participation in the Convention, including States whose interests were specially affected
(i.e. generality); and (2) virtually uniform practice, undertaken in a manner that
demonstrates (3) a general recognition of the rule of law or legal obligation (i.e. opinio
juries). With only 39 ratifying States, the Court held that the first criteria were not met.

15

 The Court concluded that the equidistance principle was not binding on Germany
by way of treaty or customary international law. In the case of the latter, the principle
had not attained a customary international law status at the time of the entry into force
of the Geneva Convention or thereafter.

The jurisprudence of the North Sea Continental Shelf Cases sets out the dual
requirement for the formation of customary international law: (1) State practice (the
objective element) and (2) opinio juris (the subjective element). It highlighted that the
practices of those States whose interests were specially affected by the custom were
especially relevant in the formation of customary law; uniform and consistent practice
was necessary to demonstrate opinio juris; and dispelled the myth that duration of
the practice (i.e. the number of years) was an essential factor in forming customary
international law.

16

SOUTH WEST AFRICA CASES (ETHIOPIA v. SOUTH AFRICA; LIBERIA v. SOUTH
AFRICA) SECOND PHASE
International Court of Justice | July 18, 1966

FACTS:
On 4 November 1960, Ethiopia and Liberia, as former States Members of the
League of Nations, instituted separate proceedings against South Africa in a case
concerning the continued existence of the League of Nations Mandate for South West
Africa and the duties and performance of South Africa as mandatory Power. The Court
was requested to make declarations to the effect that South West Africa remained a
territory under a Mandate, that South Africa had been in breach of its obligations under
that Mandate, and that the Mandate and hence the mandatory authority were subject
to the supervision of the United Nations. On 20 May 1961, the Court made an Order
finding Ethiopia and Liberia to be in the same interest and joining the proceedings each
had instituted. South Africa filed four preliminary objections to the Court’s jurisdiction.
In a Judgment of 21 December 1962, the Court rejected these and upheld its
jurisdiction. After pleadings on the merits had been filed within the time-limits fixed at
the request of the Parties, the Court held public sittings from 15 March to 29 November
1965 in order to hear oral arguments and testimony, and judgment in the second phase
was given on 18 July 1966.

ISSUE:
Whether or not the Applicants have standing in the second phase of the
proceedings.

HELD:
NONE. By the casting vote of the President, the votes having been equally
divided (7-7), the Court found that Ethiopia and Liberia could not be considered to have
established any legal right or interest appertaining to them in the subject-matter of
their claims, and accordingly decided to reject those claims. It was in their capacity as
former members of the League of Nations that the Applicants appeared before the
Court; and the rights they claimed were those that the members of the League were
said to have been invested with in the time of the League. Accordingly, in order to
determine the rights and obligations of the Parties relative to the Mandate, the Court
had to place itself at the point in time when the mandates system was instituted. Any
enquiry into the rights and obligations of the Parties must proceed principally on the
basis of considering the texts of the instruments and provisions in the setting of their
period. Individual member States of the League could take part in the administrative
process only through their participation in the activities of the organs by means of
which the League was entitled to function. They had no right of direct intervention
relative to the mandatories: this was the prerogative of the League organs. The manner
in which the mandate instruments were drafted only lends emphasis to the view that
the members of the League generally were not considered as having any direct concern
with the setting up of the various mandates. Furthermore, while the consent of the
Council of the League was required for any modification of the terms of the mandate, it
was not stated that the consent of individual members of the League was additionally
required. Individual members of the League were not parties to the various instruments
of mandate, though they did, to a limited extent, and in certain respects only, derive
rights from them. They could draw from the instruments only such rights as these
unequivocally conferred. Had individual members of the League possessed the rights
which the Applicants claimed them to have had, the position of a mandatory caught
between the different expressions of view of some 40 or 50 States would have been
untenable. Furthermore, the normal League voting rule was unanimity, and as the
mandatory was a member of the Council on questions affecting its mandate, such
questions could not be decided against the mandatory's contrary vote. This system was
inconsistent with the position claimed for individual League members by the Applicants,

17

and if, as members of the League, they did not possess the rights contended for, they
did not possess them now.

18

 COLUMBIA-PERU ASYLUM CASE
ICJ Reports; 1950

FACTS:
On October 3rd. 1948, a military rebellion broke out in Peru; it was suppressed
the same day. On the following day, a decree was published charging a political party,
the Ameri- can People's Revolutionary Party, with having prepared and directed the
rebellion. The head of the Party, Victor Ratil Maya de la Torre, was denounced as being
responsible. With other members of the party, he was prosecuted on a charge of
military rebellion. As he was still at liberty on November 16th. summonses were
published ordering him to appear before the Examining Magistrate. On January 3rd
1949, he was granted asylum in the Colombian Embassy in Lima. Meanwhile, on
October 27th, 1948, a Military Junta had assumed power in Peru and had published a
decree providing for Courts-martial for summary judgment in cases of rebellion, sedition
and rioting; but this decree war; not applied to the legal proceedings against Haya de la
Torre and others, and it has been declared before the Court that this Decree was not
applicable to the said proceedings. Furthermore, during the period from October 4th to
the beginning of February 1949, Peru was in a state of siege.

On January 4th, 1949, the Colombian Ambassador in Lima informed the Peruvian
Government of the asylum granted to Haya de la Torre; at the same time, he asked
that a safe-conduct be issued to enable the refugee to leave the country. On January
14th, he further stated that the refugee had been qualified as a political refugee. The
Peruvian Government disputed this qualification and refused to grant a safe-conduct. A
diplomatic correspondence ensued which terminated in the signature, in Lima, on
August 31st 1949, of an Act by which the two Governments agreed to submit the case
to the International Court of Justice.

ISSUES:

1. Whether or not Colombia is competent, as the country that grants asylum, to

unilaterally qualify the offence for the purpose of asylum under treaty law and
international law;
2. Whether or not Peru, as the territorial State, was bound to give a guarantee of
safe passage;
3. Whether or not Colombia violated Article 1 and 2(2) of the Convention on Asylum
of 1928 (hereinafter called the Havana Convention) when it granted asylum and
is the continued maintenance of asylum a violation of the treaty?

RULING:
1. NO. The court stated that in the normal course of granting diplomatic asylum, a
diplomatic representative has the competence to make a provisional qualification
of the offense (for example, as a political offence) and the territorial State has
the right to give consent to this qualification. In the Torre’s case, Colombia has
asserted, as the State granting asylum, that it is competent to qualify the nature
of the offence in a unilateral and definitive manner that is binding on Peru. The
court had to decide if such a decision was binding on Peru either because of
treaty law (in particular the Havana Convention of 1928 and the Montevideo
Convention of 1933), other principles of international law or by way of regional
or local custom.

The court held that there was no expressed or implied right of unilateral and
definitive qualification of the State that grants asylum under the Havana
Convention or relevant principles of international law. The Montevideo
Convention of 1933, which accepts the right of unilateral qualification, and on
which Colombia relied to justify its unilateral qualification, was not ratified by
Peru. The Convention, per say, was not binding on Peru and considering the low

19

 numbers of ratifications the provisions of the latter Convention cannot be said to
reflect customary international law.

The court held that the burden of proof on the existence of an alleged customary
law rests with the party making the allegation and that Colombia did not
establish the existence of a regional custom because it failed to prove consistent
and uniform usage of the alleged custom by relevant States. The fluctuations
and contradictions in State practice did not allow for the uniform usage. The
court also reiterated that the fact that a particular State practice was followed
because of political expediency and not because of a belief that the said practice
is binding on the State by way of a legal obligation (opinio juris) is detrimental to
the formation of a customary law. The court also held that even if Colombia
could prove that such a regional custom existed, it would not be binding on Peru,
because Peru “far from having by its attitude adhered to it, has, on the contrary,
repudiated it by refraining from ratifying the Montevideo Conventions of 1933
and 1939, which were the first to include a rule concerning the qualification of
the offence [as “political” in nature] in matters of diplomatic asylum.”

The court concluded that Colombia, as the State granting asylum, is not
competent to qualify the offence by a unilateral and definitive decision, binding
on Peru.

2. NO. The court held that there was no legal obligation on Peru to grant safe
passage either because of the Havana Convention or customary law. In the case
of the Havana Convention, a plain reading of Article 2 results in an obligation on
the territorial state (Peru) to grant safe passage only after it requests the asylum
granting State (Colombia) to send the person granted asylum outside its national
territory (Peru). In this case the Peruvian government had not asked that Torre
leave Peru. On the contrary, it contested the legality of asylum granted to him
and refused to grant safe conduct.

The court looked at the possibility of a customary law emerging from State
practice where diplomatic agents have requested and been granted safe passage
for asylum seekers, before the territorial State could request for his departure.
Once more, the court held that these practices were a result of a need for
expediency and other practice considerations over an existence of a belief that
the act amounts to a legal obligation.

3. Article 1 - NO. The court held that according to Article 1 of the Havana
Convention, the person-seeking asylum must not be accused of a common crime
(for example, murder would constitute a common crime, while a political offence
would not). The accusations that are relevant are those made before the
granting of asylum. Torre’s accusation related to a military rebellion, which the
court concluded was not a common crime and as such the granting of asylum
complied with Article 1 of the Convention.

An essential pre-requisite for the granting of asylum is the urgency or, in other
words, the presence of “an imminent or persistence of a danger for the person of
the refugee”. The court held that the facts of the case, including the 3 months
that passed between the rebellion and the time when asylum was sought, did
not establish the urgency criteria in this case.

Article 2- YES. Torre was accused of a crime but he could not be tried in a court
because Colombia granted him asylum. The court held that “protection from the
operation of regular legal proceedings” was not justified under diplomatic
asylum.

Asylum may be granted on “humanitarian grounds to protect political prisoners

against the violent and disorderly action of irresponsible sections of the

20

population.” Torre was not in such a situation at the time when he sought refuge
in the Colombian Embassy at Lima.

The court concluded that the grant of asylum and reasons for its prolongation
were not in conformity with Article 2(2) of the Havana Convention.

21

 NUCLEAR TESTS; ICJ REPORTS
NEW ZEALAND v. FRANCE
1974

FACTS:
On 9 May 1973, Australia and New Zealand each instituted proceedings against
France concerning tests of nuclear weapons which France proposed to carry out in the
atmosphere in the South Pacific region. France stated that it considered the Court
manifestly to lack jurisdiction and refrained from appearing at the public hearings or
filing any pleadings. The New Zealand Government asked the Court to adjudge and
declare that the conduct by the French Government of nuclear tests in the South Pacific
region that give rise to radio-active fall-out constitutes a violation of New Zealand’s
rights under international law, and that these rights will violated by any further such
tests. On 14 May the New Zealand Government asked the Court to indicate interim
measures of protection. By two Orders of 22 June 1973, the Court, at the request of
Australia and New Zealand, indicated provisional measures to the effect, inter alia, that
pending judgment France should avoid nuclear tests causing radioactive fall-out on
Australian or New Zealand territory.

ISSUE:
Whether or not declaration made through unilateral act has effect of creating
legal obligations?

RULING:
It is well recognized that declarations made by way of unilateral acts, concerning
legal or factual situations, may have the effect of creating legal obligations. Nothing in
the nature of a quidpro quo, nor any subsequent acceptance, nor even any reaction
from other States is required for such declaration to take effect. Neither is the question
of form decisive. The intention of being bound is to be ascertained by an interpretation
of the act. The binding character of the undertaking results from the terms of the act
and is based on good faith; interested States are entitled. to require that the obligation
be respected. In the present case, the Applicant, while recognizing the possibility of the
dispute king resolved by a unilateral declaration on the part of France, has stated that,
in its view, the possibility of further atmospheric tests has been left open, even after the
French statements mentioned above. The Court must, however, form its own view of
the meaning and scope intended to be given to these unilateral declarations. Having
regard to their intention and to the circumstances in which they were made, they must
be held to constitute an engagement of the French State. France has conveyed to the
world at large, including the Applicant, its intention effectively to terminate its
atmospheric tests. It was bound to assume that other States might take note of these
statements and rely on their being effective. It is true that France has not recognized
that it is bound by any rule of international law to terminate its tests, but this does not
affect the legal consequences of the statements in question; the unilateral undertaking
resulting from them cannot be interpreted as having been made in implicit reliance on
an arbitrary power of reconsideration.
By two Judgments delivered on 20 December 1974, the Court found that the
Applications of Australia and New Zealand no longer had any object and that it was
therefore not called upon to give any decision thereon. In so doing the Court based
itself on the conclusion that the objective of Australia and New Zealand had been
achieved inasmuch as France, in various public statements, had announced its intention
of carrying out no further atmospheric nuclear tests on the completion of the 1974
series.

22

 NUCLEAR TESTS; ICJ REPORTS
AUSTRALIA v. FRANCE
1974

FACTS:
In 1974, the International Court of Justice delivered its judgment in the case
concerning the nuclear tests between France versus New Zealand. In a vote of 9 to six,
the Court found that the claim of New Zealand no longer had any object. As France
already ceased to conduct any nuclear tests in the atmosphere in the South Pacific.
However, the applicant, Australia, instituted a proceeding against France also with
respect to the same tests in the South Pacific. Australia contends that ICJ has
jurisdiction over the dispute based on the General Act for the Pacific Settlement of
International Disputes concluded at Geneva in 1928. Further, Australia contends that it
has the right to sue France as the latter already made previous declarations that the
nuclear tests have reached its end and therefore the case must be dismissed. As this
nuclear tests continued, Australia averred that France had broken a legal obligation.
France, on the other hand, heavily questions the jurisidiction of the Court over
the same and moved for the removal of the same on its case lists. Pending the
resolution of the question of jurisdiction, Australia requested that the Court to indicate
interim measures such as France should avoid nuclear testings causing the deposit of
radio active fall-outs on the territory of the Applicant.

ISSUE:
Whether or not France had broken an international legal obligation (YES)

RULING:
The Court held that the Declaration made through unilateral acts of States may
have the effect of creating legal obligations. In this case, the statement made by the
President of France must be held to constitute an engagement of the State in regard to
the circumstances and intention with which they were made. Since France
communicated with Australia about the end of the nuclear tests, it created a legal
obligation to the latter. Therefore, these statements made by the France are relevant
and legally binding. An undertaking of this kind, if given publicly, and with an intent to
be bound, even though not made within the context of international negotiations, is
binding. In these circumstances, nothing in the nature of a quid pro quo, nor any
subsequent acceptance of the declaration, nor even any reply or reaction from other
States, is required for the declaration to take effect, since a requirement would be
inconsistent with the strictly unilateral nature of the juridical act by which the
pronouncement by the State was made.The unilateral statements made by French
authorities were first relayed to the government of Australia. There was no need for the
statements to be directed to any particular state for it to have legal effect. The general
nature and characteristics of the statements alone were relevant for evaluation of their
legal implications.

23

 NEW ZEALAND v FRANCE
in accordance with par. 63
September 22, 1995

FACTS:
The President of the France in a media statement declared that "France would
conduct a final series of eight nuclear weapons tests in the South Pacific starting in
September 1995.” Accordingly, New Zealand filed a "Request for an Examination of the
Situation" in connection to the earlier judgement of the Court, in Dec. 20, 1974 Nuclear
Test case, where the Court found that it was not called upon to give a decision on the
claim submitted by New Zealand in 1973, that claim no longer having any object, by
virtue of the declarations by which France had undertaken not to carry out further
atmospheric nuclear tests; and yet, might be presently changed as it further held, as
stated in paragraph 63 "to cover the possibility that France might subsequently cease to
comply with its undertakings regarding atmospheric testing or that something else
underlying the Court's Judgment was no longer applicable;” and that “if the basis of this
Judgment were to be affected, the Applicant could request an examination of the
situation in accordance with the provisions of the Statute.” Further, New Zealand asks
the Court to adjudge and declare: "(i) that the conduct of the proposed nuclear tests
will constitute a violation of the rights under international law of New Zealand, as well
as of other States (as it is unlawful for France to conduct such nuclear tests before it
has undertaken an Environmental Impact Assessment according to accepted
international standards).

ISSUE:
Whether or not the basis of the Court’s Judgment in December 20, 1974 has
been affected by the present facts

RULING:
By inserting the above-mentioned words in paragraph 63 of its Judgment, the
Court did not exclude a special procedure, in the event that the circumstances defined
in that paragraph were to arise, in other words, circumstances which "affected" the
"basis" of the Judgment. In 1974, it made a decision based on the subject matter of the
case - the atmospheric (nuclear weapon) tests. In making such findings, dealt
exclusively with atmospheric nuclear tests; whereas consequently, it is not possible for
the Court now to take into consideration questions relating to underground nuclear
tests; and whereas the Court cannot, therefore, take account of the arguments derived
by New Zealand - on the one hand from the conditions in which France has conducted
underground nuclear tests since 1974, and on the other from the development of
international law in recent decades. Further, the basis of the Judgment delivered on 20
December 1974 in the Nuclear Tests (New Zealand v. France) case has not been
affected; and that the Request made does not therefore fa11 within the provisions of
paragraph 63 of that Judgment, hence, must be consequently dismissed.

24

 LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS
International Court of Justice | July 8, 1996

FACTS:
By a letter dated 19 December 1994, filed in the Registry on 6 January 1995, the
Secretary-General of the United Nations officially communicated to the Registry a
decision taken by the General Assembly, by its resolution 49/75 K adopted on 15
December 1994, to submit to the Court, for advisory opinion, the following question: “Is
the threat or use of nuclear weapons in any circumstance permitted under international
law?” The resolution asked the Court to render its advisory opinion “urgently”. Written
statements were filed by 28 States, and subsequently written observations on those
statements were presented by two States. In the course of the oral proceedings, which
took place in October and November 1995, 22 States presented oral statements.

ISSUE:
Whether or not the threat or use of nuclear weapons in any circumstance is
permitted under international law.

RULING:
The Court found that the most directly relevant applicable law was that relating
to the use of force, as enshrined in the United Nations Charter, and the law applicable
in armed conflict, together with any specific treaties on nuclear weapons that the Court
might find relevant. The Court then considered the question of the legality or illegality
of the use of nuclear weapons in the light of the provisions of the Charter relating to
the threat or use of force. It observed, inter alia, that those provisions applied to any
use of force, regardless of the weapons employed. In addition, it stated that the
principle of proportionality might not in itself exclude the use of nuclear weapons in
self-defense in all circumstances. However at the same time, a use of force that was
proportionate under the law of self-defense had, in order to be lawful, to meet the
requirements of the law applicable in armed conflict, including, in particular, the
principles and rules of humanitarian law. It pointed out that the notions of a “threat”
and “use” of force within the meaning of Article 2, paragraph 4, of the Charter stood
together in the sense that if the use of force itself in a given case was illegal, for
whatever reason, the threat to use such force would likewise be illegal. The Court then
turned to the law applicable in situations of armed conflict. From a consideration of
customary and conventional law, it concluded that the use of nuclear weapons could
not be seen as specifically prohibited on the basis of that law, nor did it find any specific
prohibition of the use of nuclear weapons in the treaties that expressly prohibited the
use of certain weapons of mass destruction.
The Court then turned to an examination of customary international law to
determine whether a prohibition of the threat or use of nuclear weapons as such flowed
from that source of law. Noting that the members of the international community were
profoundly divided on the matter of whether non-recourse to nuclear weapons over the
past 50 years constituted the expression of an opinio juris, it did not consider itself able
to find that there was such an opinio juris. The emergence, as lex lata, of a customary
rule specifically prohibiting the use of nuclear weapons as such was hampered by the
continuing tensions between the nascent opinio juris on the one hand, and the still
strong adherence to the doctrine of deterrence on the other. The Court then dealt with
the question whether recourse to nuclear weapons ought to be considered as illegal in
the light of the principles and rules of international humanitarian law applicable in
armed conflict and of the law of neutrality. It laid emphasis on two cardinal principles
: (a) the first being aimed at the distinction between combatants and non-combatants ;
States must never make civilians the object of attack and must consequently never use
weapons that are incapable of distinguishing between civilian and military targets
while (b) according to the second of those principles, unnecessary suffering should not
be caused to combatants. It follows that States do not have unlimited freedom of
choice in the weapons they use. The Court also referred to the Martens Clause,

25

according to which civilians and combatants remained under the protection and
authority of the principles of international law derived from established custom, the
principles of humanity and the dictates of public conscience.
The Court indicated that, although the applicability to nuclear weapons of the
principles and rules of humanitarian law and of the principle of neutrality was not
disputed, the conclusions to be drawn from it were, on the other hand, controversial. It
pointed out that, in view of the unique characteristics of nuclear weapons, the use of
such weapons seemed scarcely reconcilable with respect for the requirements of the
law applicable in armed conflict. The Court was led to observe that in view of the
current state of international law and of the elements of fact at its disposal, it cannot
conclude definitively whether the threat or use of nuclear weapons would be lawful or
unlawful in an extreme circumstance of self-defense, in which the very survival of a
State would be at stake. The Court added, lastly, that there was an obligation to pursue
in good faith and to conclude negotiations leading to nuclear disarmament in all its
aspects under strict and effective international control.

26

 THE PAQUETE HABANA
175 U.S. 677, 20 S. Ct. 290, 44 L. Ed. 320,
1900 U.S. LEXIS 1714; U.S. Jan. 8, 1900

FACTS:

This appeal of a district court decree, which condemned two fishing vessels and
their cargoes as prizes of war, was brought by the its owners. Each of the vessel
running in and out of Havana and sailing under the Spanish flag was regularly engaged
in fishing on the coast of Cuba. Inside the vessels were fresh fish which the crew had
caught.

The owners of the vessels were not aware of the existence of a war until they
were stopped by a U.S. squadron. No incriminating material like arms was found on the
fishermen and they did not make any attempt to run the blockade after learning of its
existence nor did they resist their arrest. When the owners appealed, they argued that
both customary international law and writings of leading international scholars
recognized an exemption from seizure at wartime of coastal fishing vessels.

ISSUE:

Whether or not coastal fishing vessels with their cargoes and crews excluded
from prizes of war

RULING:

YES. Coastal fishing vessels with their cargoes and crews are excluded from
prizes of war. The doctrine that exempts coastal fishermen with their vessels and crews
from capture as prizes of war has been known by the U.S. from the time of the War of
Independence and has been recognized explicitly by the French and British
governments. It is an established rule of international law that coastal fishing vessels
with their equipment and supplies, cargoes and crews, unarmed and honestly pursuing
their peaceful calling of catching and bringing in fish are exempt from capture as prizes
of war. Judgement reversed.

27

 PREAH VIHEAR TEMPLE CASE

FACTS:
Cambodia complained that Thailand had occupied a piece of its territory
surrounding the ruins of the Temple of Preah Vihear, a place of pilgrimage and worship
for Cambodians, and asked the Court to declare that territorial sovereignty over the
Temple belonged to it and that Thailand was under an obligation to withdraw the
armed detachment stationed there since 1954. Thailand filed preliminary objections to
the Court’s jurisdiction, which were rejected in a Judgment given on 26 May 1961. In its
Judgment on the merits, rendered on 15 June 1962, the Court noted that a Franco-
Siamese Treaty of 1904 provided that, in the area under consideration, the frontier was
to follow the watershed line, and that a map based on the work of a Mixed Delimitation
Commission showed the Temple on the Cambodian side of the boundary. Thailand
asserted various arguments aimed at showing that the map had no binding character.
One of its contentions was that the map had never been accepted by Thailand or,
alternatively, that if Thailand had accepted it, it had done so only because of a mistaken
belief that the frontier indicated corresponded to the watershed line.

ISSUE:
Whether or not Thailand has sovereignty

RULING:
At the outset, the Court recalled the requirements of Article 60 of the Statute,
namely, the existence of dispute between the parties as to the meaning or scope of a
judgment rendered by the Court—that is, a dispute concerning the operative clause of
the judgment in question, and not to the reasons for the judgment, except insofar as
the reasons are inseparable from the operative clause. In other words, the object of a
request for interpretation “must be solely to obtain clarification of the meaning and the
scope of what the Court has decided with binding force, and not to obtain an answer to
questions not so decided.” The Court also clarified in response to a contention raised by
Cambodia that the headnote of the Judgment cannot provide guidance as to its scope
and that it does not represent “an authoritative summary of what the Court has actually
decided.”
More generally, greater clarity in the drafting of judgments could prevent
exacerbation of existing disputes in future cases. The Preah Vihear case demonstrates
how things may go wrong when expressions in the judgment are susceptible to more
than one interpretation by the parties. Nonetheless, the Court’s judgment on
interpretation does not seem to have surprised either of the two litigant States and has
been fairly positively accepted
The Court found that Thailand had indeed accepted the map and concluded that the
Temple was situated on Cambodian territory. It also held that Thailand was under an
obligation to withdraw any military or police force stationed there and to restore to
Cambodia any objects removed from the ruins since 1954

28

 PORTUGAL v. INDIA
Case Concerning. Right of Passage Over the Indian Territory

FACTS:
The Portuguese possessions in India included the two enclaves of Dadra and
Nagar-Aveli which, in mid-1954, had passed under an autonomous local administration.
Portugal claimed that it had a right of passage to those enclaves and between one
enclave and the other to the extent necessary for the exercise of its sovereignty and
subject to the regulation and control of India ; it also claimed that, in July 1954,
contrary to the practice previously followed, India had prevented it from exercising that
right and that that situation should be redressed. The Memorial filed by Portugal among
others include transit of persons and goods, as well as the passage of representatives
of the authorities and of armed forces necessary to ensure the full exercise of
Portuguese sovereignty in the territories in question.
During the preliminary proceedings, India raised the issue of jurisdiction among
others. Government of India contended that the Court was without jurisdiction on the
ground that India's Declaration of Acceptance was limited to "disputes arising after
February 5th 1930 with regard to situations or facts subsequent there to the same
date." The Government of India argued that the dispute submitted to the Court by
Portugal did not arise after February 5th, 1930 and, secondly, that in any case, it was a
dispute with regard to situations and facts prior to that date. Another preliminary
objection raised by the Government of India was based on the absence, prior to the
filing of the Application, of diplomatic negotiations which would have made it possilble
to define the subject matter of the claim.

ISSUES:
1. Whether or not the Court has jurisdiction over the case (YES)
2. Whether or not Portugal has a right of passage over the Indian territory (YES)

RULING:
1. India relied on a reservation in its own Declaration of Acceptance which excludes
from the jurisdiction of the Court disputes with regard to questions which by
international law fall exclusively within thejurisdiction of the Government of
India, and asserted that the facts and the legal considerations adduced before
the Court did not permit the conclusion that there was a reasonably arguable
case for the contention that the subject matter of the dispute was outside the
exclusive domestic jurisdiction of India. The Court noted that the facts on which
the Submissions of India were based were not admitted by Portugal and that elu-
cidation of those facts and their legal cons.equenceswould involve an
examination of the practice of the British. Indian and Portuguese authorities in
the matter of the right of pas- sage, in particular to determine whether this
practice showed that the Parties had envisaged this right as a question which
according to international law was exclusively within the jurisdiction of the
territorial sovereign. All these and similar questions could not be examined at this
pireliminary stage without prejudging the merits.
2. India argued before the Court that practice between only two states was not
sufficient to form a local custom. The Court rejected this reasoning, finding no
reason why a century and a quarter of practice based on mutual rights and
obligations was insufficient for local custom to arise. This local practice, thus,
prevailed over any general rules. Local customary law can exist as long as the
elements in the North Sea Continental Shelf case are made out which was
equidistance was not a rule of customary law. Equitable principles must be
utilized in negotiations between the parties to delineate the boundaries.

29

 CORFU CHANNEL CASE
THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND VS
ALBANIA
April 9, 1949

FACTS:
Two British ships were attacked by an Albanian battle ship. Relatively, the two
States tried to enter into diplomatic discussions regarding the right of the British ships
to pass peacefully through the Albanian waters. For United Kingdom, innocent passage
through straits, without the need to make any announcement or to await permission, is
a right recognized by international law. However, Albania asserts that warships and
merchant ships had no right to pass through its territorial waters without prior
authorization. After this dispute, another set of ships entered the North Corfu Strait in
Albania. The Saumarez, one of the destroyers, struck a mine and was gravely damaged.
To assist the preceding, Volage, another destroyer, was sent but unfortunately struck
another mine and was also seriously damaged. These events had killed 45 British sailors
with 42 others, wounded. The United Kingdom, in its claim for damages, attested in its
petition that Albania had the obligation to inform the British ships of the mines. Albania,
on the other hand, argued that the United Kingdom have violated their sovereignty by
sending warships in their territorial waters and by carrying out minesweeping
operations in Albanian waters after the explosions

ISSUE:
Whether or not Albania should be held responsible for the explosions

RULING:
Albania was responsible both for the explosions that had taken place in their
waters and the lives it had taken, under international law. Two series of facts, which
corroborate one another, have been considered: 1) Albania’s attitude before and after
the incident - Albanian Government constantly kept a close watch over the waters of
the North Corfu Channel, it had instances of use of force against passing foreign trips
and had also issued notes which are all evidence of its intention to keep a jealous watch
on its territorial waters. In addition, 2) the other concerns the feasibility of observing
mine laying from the Albanian coast - the methodical and well thought-out laying of two
rows of mines that had clearly a combined offensive and defensive purpose, as the
experts found: they consider it to be indisputable that if a normal look-out was kept at
Cape Kiephali, Denta Point, and St. George's Monastery, and if the look-outs were
equipped with binoculars as has been stated, under normal weather conditions for this
area, the mine-laying operations must have been noticed by these coastguards. The
Court canriot fail to give great weight to the opinion of the Experts who examined the
locality in a manner giving every guarantee of correct and impartial information. It then
dismissed the argument of the Albanian Government that it had no knowledge of the
mine-laying operations.

The United Kingdom have not violated Albania’s sovereignty as States, in times of
peace, have a right to send their warships through straits used for international
navigation between two parts of the high seas without the previous authorization of a
coastal State, provided that the passage is innocent and that this practice, is a
generally recognized international principle. The Corfu Channel is a strait used for
international navigation therefore the United Kingdom had exercised the right of
innocent passage through international straits.

30

 THE FACTORY AT CHORZÓW (CLAIM FOR INDEMNITY)
Permanent Court of International Justice
September 13, 1928 (Series A, No. 17)

FACTS:
There was an agreement between Germany and Poland and that bilateral treaty was
known as the Geneva Upper Silesia Convention 1922. It had been provided in that treaty that on
transfer of sovereignty of certain territories from Germany to Poland after the 1st world war,
existing proprietary right were to be maintained except that the Polish Government was granted a
right of expropriation under certain condition with respects of all property belonging to German
nationals in Upper Silesia. The present dispute arose when Poland had taken certain measures of
dispossession against two industrial concerns—the Oberschlesische Stickstoffwerke A.-G.,
owner of the factory at Chorzów, and the Bayerische Stickstoffwerke A.-G., which operated this
factory—in breach of its international obligation under the Geneva Upper Silesia Convention of
1922. The Germany demanded compensation from the Poland. As regards the existence of the
damage alleged by the Applicant, the Respondent denies it as concerns the Oberschlesische, and
admits it as concerns the Bayerische, whilst however disputing its extent. As regards the
Oberschlesische, the Polish Government maintains that that Company did not suffer damage as a
result of dispossession, because its right of ownership was never valid, or because in any case it
ceased to be so in virtue of a judgment subsequently given by the competent Polish civil court,
which declared the entry in the land register of the transfer of ownership to be null and void.

ISSUE:
Whether or not the Polish Government is liable to make reparation.

RULING:
YES. By reason of its attitude in respect of the Oberschlesische Stickstoffwerke and
Bayerische Stickstoffwerke Companies, which attitude has been declared by the Court not to
have been in conformity with the provisions of Article 6 and the following articles of the Geneva
Convention, the Polish Government is under an obligation to pay, as reparation to the German
Government, a compensation corresponding to the damage sustained by the said Companies as a
result of the aforesaid attitude. It is a principle of international law, or even of law in general,
that any breach of an engagement involves an obligation to make reparation. Reparation is the
indispensable complement of a failure to apply a convention, and there is no necessity for this to
be stated in the convention itself. The existence of the principle establishing the obligation to
make reparation, as an element of positive international law, has moreover never been disputed
in the course of the proceedings in the various cases concerning the Chorzów factory. In this
case, there has been a violation of an engagement and the wrongful act is established.

31

 BARCELONA TRACTION, LIGHT AND POWER COMPANY CASE
BELGIUM V. SPAIN
ICJ Reports; 1970

FACTS:

The Barcelona Traction, Light and Power Company, Limited, was incorporated in
1911 in Toronto (Canada), where it has its head office. For the purpose of creating and
developing an electric power production and distribution system in Catalonia (Spain) it
formed a number of subsidiary companies, of which some had their registered offices in
Canada and the others in Spain. In 1936 the subsidiary companies supplied the major
part of Catalonia’s electricity requirements. According to the Belgian Government some
years after the first world war Barcelona Traction’s share capital came to be very largely
held by Belgian nationals but this contention was denied by the Spanish Government.

Barcelona Traction issued several series of bonds, principally in sterling. The

sterling bonds were serviced out of transfers to Barcelona Traction effected by the
subsidiary companies operating in Spain. In 1936 the servicing of the Barcelona traction
bonds was suspended on account of the Spanish civil war. After that war, the Spanish
exchange control authorities refused to authorize the transfer of the foreign currency
necessary for the resumption of the servicing of the sterling bonds. Subsequently, when
the Belgian Government complained of this, the Spanish Government stated that the
transfers could not be authorized unless it were shown that the foreign currency was to
be used to repay debts arising from the genuine importation of foreign capital into
Spain, and that this had not been established.

In 1948 three Spanish holders of recently acquired Barcelona Traction sterling

bonds petitioned that court of Reus (Province of Tarragona) for a declaration adjudging
the company bankrupt, on account of failure to pay the interest on the bonds. On 12
February 1948, a judgment was given declaring the company bankrupt and ordering
the seizure of the assets of Barcelona Traction and of two of its subsidiary companies.
Pursuant to this judgment, the principal management personnel of the two companies
were dismissed and Spanish directors appointed. Shortly afterward, these measures
were extended to the other subsidiary companies. New shares of the subsidiary
companies were created, which were sold by public auction in 1952 to a newly-formed
company, Fuerzas Electricas de Cataluña, S.A. (Fecsa), which thereupon acquired
complete control of the undertaking in Spain.

Proceedings were brought without success in the Spanish courts by various

companies or persons. According to the Spanish Government, 2,736 orders were made
in the case and 494 judgments given by lower and 37 by higher courts before it was
submitted to the International Court of Justice. The Court found that in 1948 Barcelona
Traction, which had not received a judicial notice of the bankruptcy proceedings, and
was not represented before the Reus court, took no proceedings in the Spanish courts
until 18th June and thus did not enter a plea of opposition against the bankruptcy
judgment within the time-limit of eight days from the date of publication of the
judgment laid down in Spanish legislation. The Belgian Government contends, however,
that the notification and publication did not comply with the relevant legal requirements
and that the eight-day time-limit never began to run.

Representations were made to the Spanish Government by the British, Canadian,

United States and Belgian Governments as from 19481 or 1949. The interposition of the
Canadian Government ceased entirely in 1955.

ISSUE:

Whether or not Belgium have the Jus standi to exercise diplomatic protection of
shareholders in a Canadian company

32

RULING:

NO. The Court observed that when a State admitted into its territory foreign
investments or foreign nationals it was bound to extend to them the protection of the
law and assumed obligations concerning the treatment to be afforded them. But such
obligations were not absolute. In order to bring a claim in respect of the breach of such
an obligation, a State must first establish its right to do so.

In the field of diplomatic protection, international law was in continuous

evolution and was called upon to recognize institutions of municipal law. In municipal
law, the concept of the company was founded on a firm distinction between the rights
of the company and those of the shareholder. Only the company, which was endowed
with legal personality, could take action in respect of matters that were of a corporate
character.

A wrong done to the company frequently caused prejudice to its shareholders,

but this did not imply that both were entitled to claim compensation. Whenever a
shareholder’s interests were harmed by an act done to the company, it was to the latter
that he had to look to institute appropriate action. An act infringing only the company’s
rights did not involve responsibility towards the shareholders, even if their interests
were affected. International law had to refer to those rules generally accepted by
municipal legal systems. An injury to the shareholder’s interests resulting from an injury
to the rights of the company was insufficient to found a claim.

Where it was a question of an unlawful act committed against a company

representing foreign capital, the general rule of international law authorized the national
State of the company alone to exercise diplomatic protection for the purpose of seeking
redress. No rule of international law expressly conferred such a right on the
shareholder’s national State.

The Court considered whether there might not be, in the present case, special
circumstances for which the general rule might not take effect. Two situations need to
be studied:
a. the case of the company having ceased to exist;
b. the case of the protecting State of the company lacking the capacity to
take action.

As regards the first of these possibilities, the Court observed that whilst Barcelona
Traction had lost all its assets in Spain and been placed in receivership in Canada, it
could not be contended that the corporate entity of the company had ceased to exist or
that it had lost its capacity to take corporate action.

So far as the second possibility was concerned, it was not disputed that the
company had been incorporated in Canada and had its registered office in that country,
and its Canadian nationality had received general recognition. The Canadian
Government had exercised the protection of Barcelona Traction for a number of years.
If at a certain point the Canadian Government ceased to act on behalf of Barcelona
Traction, it nonetheless retained its capacity to do so, which the Spanish Government
had not questioned. Whatever the reasons for the Canadian Government’s change of
attitude, that fact could not constitute a justification for the exercise of diplomatic
protection by another government.

It had been maintained that a State could make a claim when investments by its
nationals abroad, such investments being part of a State’s national economic resources,
were prejudicially affected in violation of the right of the State itself to have its
nationals enjoy a certain treatment. But, in the present state of affairs, such a right
could only result from a treaty or special agreement. And no treaty or special
agreement of such a kind was in force between Belgium and Spain.

33

 If we consider reasons of equity, a State should be able to take up the protection of
its nationals, shareholders in a company which had been the victim of a violation of
international law. The Court considered that the adoption of the theory of diplomatic
protection of shareholders as such would open the door to competing claims on the
part of different States, which could create an atmosphere of insecurity in international
economic relations. In the particular circumstances of the present case, where the
company’s national State was able to act, the Court was not of the opinion that jus
standi was conferred on the Belgian Government by considerations of equity.

The Court took cognizance of the great amount of documentary and other
evidence submitted by the Parties and fully appreciated the importance of the legal
problems raised by the allegation which was at the root of the Belgian claim and which
concerned denials of justice allegedly committed by organs of the Spanish State.
However, the possession by the Belgian Government of a right of protection was a
prerequisite for the examination of such problems. Since no jus standi before the Court
had been established, it was not for the Court to pronounce upon any other aspect of
the case. Accordingly, the Court rejected the Belgian Government’s claim by 15 votes to
1, 12 votes of the majority being based on the reasons set out above.

34

 TEXACO v. LIBYA

FACTS:
A decree to nationalize all Texaco’s (P) rights, interest and property in Libya was
promulgated by Libya (D). This action of the Libyan Government led Texaco (P) to
request for arbitration, but it was refused by Libya (D). A sole arbitrator was however
appointed by the International Court of Justice on Texaco’s request, and Libya (D) was
found to have breached its obligations under the Deeds of Concessions and was also
legally bound to perform in accordance with their terms.

ISSUE:
Whether or not Libya breached its contract.

RULING:
At the outset the arbitrator stated here that 'the right of a State to nationalize is
unquestionable today. It results from international customary law, established as the
result of general practices considered by the international community as being the law'.
The arbitrator questioned, however, whether the act of sovereignty which constitutes
the nationalization authorizes a State to disregard its international commitments
assumed by it within the framew ork of its sovereignty. In this respect the arbitrator
drew a distinction between a nationalization concerning nationals of a State or a foreign
party in respect of whom the State had made no particular commitment to guarantee
and maintain their position, and a nationalization concerning an international contract.
The former type is completely governed by the domestic law. But in the case of an
internationalized contract the State has placed itself under international law. In the
instant case the arbitrator investigated therefore whether Libya had undertaken
international obligations which prevented it from taking nationalizing measures, and
whether the disregard of such obligations is justified by the sovereign nature of such
nationalization measures.
(a) The arbitrator found first that both under Libyan law and international law the State
has the power to make international commitments, including those with foreign private
parties. Such a commitment cannot be regarded as a negation of its sovereignty, but,
quite to the contrary, is a manifestation of such sovereignty. As a result a State cannot
invoke its sovereignty to disregard commitments freely undertaken through the exercise
of this same sovereignty.
The arbitrator considered that Libya had undertaken specific commitments which
could not be disregarded by the nationalization measures. The arbitrator referred here
to the fact that Libya had granted a concession of a minimum duration of 50 years, and
to the stabilization clause (clause 16, see under I Facts above). This provision does not,
in principle, impair the sovereignty of the Libyan State to legislate in the field of
petroleum activities in respect of other persons. Clause 16 only makes such acts invalid
as far as the Companies are concerned for a certain period of time. The arbitrator
observed that:
'The recognition by international law of the right to nationalize is not sufficient
ground to empower a State to disregard its commitments, because the same law also
recognizes the power of a State to commit itself internationally, especially by accepting
the inclusion of stabilization clauses in a contract entered into with a foreign private
party'.
*The case has been settled in the meantime. The parties have agreed that Libya
shall provide the companies with US $ 152 million of Libyan crude oil over the next 15
months, and that the companies shall terminate the arbitration proceedings (New York
Times and Wall Street Journal of September 26, 1977). (Source: Introductory Note in
17 International Legal Materials p. 2 (1978)).

35

 BRITISH PETROLEUM (BP) v. LIBYA
1971

FACTS:
The Libyan Petroleum Law of 1955, as amended, established a framework within
which exploration and production of petroleum in Libya might take place. In particular,
it set up a Petroleum Commission (the "Commission") which was to be responsible for
the implementation of the provisions of the Law. The Commission was empowered in
Article 9 to grant concessions "in the form set out in the Second Schedule to the Law
and not otherwise, provided that they may contain such minor non-discriminatory
variations as may be required to meet the circumstances of any particular case."
Claimant over a period of twelve years made substantial investments in Libya
and operated a major enterprise in that country for the extraction, processing, and
export of petroleum. The Claimant indirectly is and has at all times been wholly owned
by the British Petroleum Company Limited, an English public company, between 48 and
49 percent of whose ordinary share capital is held by the British Government. The
Claimant was incorporated in England on 28 January 1938 and its head office is at
Britannic House, Moor Lane, London E.C.2. All the statutory and other records are
maintained at that address. The board consists of nine persons all of whom are British
subjects resident in England. The whole of the administration, management and control
of the Claimant's affairs is exercised by the board in London. Activities overseas are
carried on through local representatives appointed and supervised by and subject to the
directions of the board in London.
On 7 December 1971, the Respondent passed the BP Nationalisation Law which
nationalised the operations of the Claimant in Concession 65. The BP Nationalisation
Law claimed to restore to the State and then to transfer to a new company, the Arabian
Gulf Exploration Company, ownership of all properties, rights, assets and shares
relating to the above-mentioned operations. The BP Nationalisation Law provided that
the State should pay compensation to the Claimant. The amount of compensation was
to be determined by a committee to be established by the Minister of Petroleum.
In the aspects unrelated to compensation, the BP Nationalisation Law was rapidly
implemented. The Claimant's operations in Concession 65 were brought to a complete
halt: its staff were immediately excluded from its premises and from its production and
transportation facilities. These were then taken over by the Arabian Gulf Exploration
Company. As regards compensation, no action was taken until 13 February 1972. Then,
according to reports in the Libyan press on 14 February 1972, a three-man committee
was appointed. No representative of the Claimant attended such meeting but a letter
was sent to the Minister of Petroleum, referring to the cable and saying, "As you know
BP is willing to attempt to resolve the dispute which exists between it and your
Government by negotiation".
During a meeting with the United Nations, the representative of Libya raised the
issue that the Government of Great Britain has violated the provisions of the very
treaties it had itself imposed upon the Sheikhdoms of the Arabian Gulf decades ago.
The treaties imposed occupation and colonialism. However, they also provided for the
protection of the territorial integrity of those Sheikhdoms and their islands.
By a letter dated 28 January 1972, addressed to the Minister of Petroleum, the
Claimant informed him, in terms similar to its letter of 30 December 1972, that on 30
July 1972, £2,882,955 would, in the normal course of events, have fallen due for
payment to the Respondent on 30 January 1972, but that this sum would be lodged in
a special account in a London bank pending the outcome of the arbitral proceedings.
Similar letters relating to payments of £3,001,133 and £10,290,136 otherwise due on
29 February and30April 1972wereaddressed bytheClaimant totheMinister of Petroleum
on 28February and 28 April 1972, respectively.

ISSUES:
1. Whether or not there was breach of Obligation (YES)

36

 2. Whether or not specific performance and restitutio in intergum remedies are
available to the Claimant if the first issue is answered in positive (YES)
3. Whether or not Claimant is entitled to damages (YES)
4. Whether or not the case is within the scope of Public International Law
(Qualified)

RULING:
1. The BP Nationalisation Law, and the actions taken thereunder by the
Respondent, do constitute a fundamental breach of the BP Concession as
they amount to a total repudiation of the agreement and the obligations of
the Respondent thereunder, and, on the basis of rules of applicable systems
of law too elementary and voluminous to require or permit citation, the
Tribunal so holds. Further, the taking by the Respondent of the property,
rights and interests of the Claimant clearly violates public international law as
it was made for purely extraneous political reasons and was arbitrary and
discriminatory in character. Nearly two years have now passed since the
nationalisation, and the fact that no offer of compensation has been made
indicates that the taking was also confiscatory.
2. It may be argued that the Claimant does not in fact ask for an order of
restitutio in integrum, but merely for adeclaratory statement as to its legal
position under the BP Concession and with respect to certain property and
that the issue of whether restitution in kind is an available remedy therefore
is not presented. Such a distinction, subtle though it is, may be relevant for a
proper understanding of the decisions of international tribunals. The Tribunal
holds, however, that no such distinction should be made. If it is found that
the Claimant is entitled to be restored to the full enjoyment of its rights under
the BP Concession, and is the owner of the oil and the assets referred to,
then the Claimant is entitled to an order for specific performance or,
alternatively, a declaratory award of entitlement to specific performance. The
availability of the remedies of specific performance and restitutio in integrum
in customary international law, it is important at the outset to stress that the
inquiry below will be restricted to the general field of economic interests and
especially to longterm contracts of a commercial or industrial character and
property and other assets employed in industrial undertakings. The Tribunal
concludes, on the basis of the material considered in paragraphs (ii) and (iii)
above, that it is arguable that when an international contractual obligation is
unlawfully abrogated by one party, the other party may regard the
agreement as still existing until it elects, within a reasonable time, to
terminate it, and that such innocent party further, during the intervening
period, may suspend its performance thereunder. However, the stated
principle of the continuing validity of the agreement rests only on a basis of
extreme generality and has never been fully considered in the context of facts
such as those which are at issue here where one party is a sovereign State.
3. The Tribunal holds that under the rules of applicable systems of law which at
the present stage of the proceedings require no detailed exposition or
analysis, the Claimant is entitled to damages arising from the wrongful act of
the Respondent. The principle of compensation is also recognised in the BP
Nationalisation Law. The nature and extent of such damages can only be
assessed in subsequent proceedings before this Tribunal.
4. Paragraph 7 of Clause 28 of the BP Concession, quoted in Part I above,
stipulates which law is to govern the agreement. While the provision
generates practical difficulties in its implementation, it offers guidance in a
negative sense by excluding the relevance of any single municipal legal
system as such. To the extent possible, the Tribunal will apply the clause
according to its clear and apparent meaning. Natural as this would be in any
event, such an interpretation is the more compelling as the contractual
document is of a standardised type prescribed by the Respondent. The

37

governing law clause moreover was the final product of successive changes
made in the Libyan petroleum legislation in the decade between 1955 and
1965 by which the relevance of Libyan law was progressively reduced. In
paragraph 7 of Clause 28, reference is made to the principles of law of Libya
common to the principles of international law, and only if such common
principles do not exist with respect to a particular matter, to the general
principles of law. The Claimant argues, in the first of three alternative
submissions, that international law alone is applicable.

38

 SAUDI ARABIA v. ARABIAN AMERICAN OIL COMPANY
1963

FACTS:
Subject of this case is the rightful interpretation of the 1933 Concession
Agreement between the Government of Saudi Arabia and Standard Oil Company for
California. The agreement was later assigned to the California Arabian Standard Oil
Company, which was then renamed as Arabian American Oil Company (ARAMCO). The
Agreement gave ARAMCO, for 60 years, exclusive rights to explore, prospect, drill,
extract, treat, manufacture, transport and export oil from its concession area in Saudi
Arabia (Article 1).

Subsequently, in 1954, Saudi Arabia entered into an Onassis Agreement which

gave Saudi Arabian Maritime Tankers, Ltd. (SATCO), which granted the latter 30 years
of right of priority for transport of Saudi Arab Oil. As it finds contradicting to the right to
transport given to ARAMCO, Saudi Arabian Government argued that the exclusive right
to “transport” in the Concession Agreement only contemplated internal transport from
site of extraction to the refinery for manufacture.

ISSUE:
Whether or not the Onassis Agreement prevails over the Concession Agreement

RULING:
The Tribunal holds that the terms used in Article 1 of the Concession Agreement
to indicate the content of Aramco's exclusive right must be understood in their plain,
ordinary and usual Sense, which is the sense accepted in the oil industry. According to
a principle generally followed in the interpretation of concessions, any restriction in the
rights granted by a general clause must be expressed in a clear and unequivocal
manner if it is to be invoked against the concessionaire. Sea transport is not excluded
by the mere absence in Article 1 of the expression ' maritime ' or of some similar term.
Likewise the terms 'by land' or 'across the territorial waters' are not found in the text
and yet these kinds of transportation are not disputed by the Government. Aramco's
exclusive right to transport, therefore, is not purely terrestrial, but also maritime, and it
extends not only to the territorial waters of Saudi Arabia but even to those waters
which are legally included in the high seas and cover the sea-bed and submarine areas
contiguous to the coasts of Saudi Arabia.
In addition, the Onassis Agreement is a res inter alios acta which can neither
diminish nor increase ARAMCO’s rights. In its capacity as first concessionaire, Aramco
enjoys indeed exclusive rights which have the character of acquired or 'vested' rights
and which cannot be taken away from it by the Government by means of a contract
concluded with a second concessionaire, even if that contract were equal to its own
contract from a legal point of view. The principle of respect for acquired rights is one of
the fundamental principles both of public international law and of the municipal law of
most civilized States.

39

THE HOLY SEE vs. THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge
of the Regional Trial Court of Makati, Branch 61 and STARBRIGHT SALES
ENTERPRISES, INC.
G.R. No. 101949 | December 1, 1994

FACTS:
Petitioner is the Holy See who exercises sovereignty over the Vatican City and is
represented by the Papal Nuncio in the Philippines. The petition arose from a
controversy regarding Lot 5-A of 6,000 square meters located in the Municipality of
Parañaque, registered in the name of the petitioner. Lot 5-A is contiguous to two other
lots, 5-B and 5-D, which are registered in the name of the Philippine Realty Corporation
(PRC). The three lots were sold to Ramon Licup, who later assigned his rights to the
sale to the private respondent, Starbright Sales Enterprises, Inc., involved in real estate.
Informal settlers were squatting in the property, and dispute arose as to who would
evict them. The conflict intensified when the lot was sold to Tropicana Properties and
Development Corporation by the petitioner. The private respondent filed a complaint
before the RTC of Makati against the petitioner and three other defendants: Msgr.
Domingo Cirilos, who acted as agent to the sellers, the PRC and Tropicana. It prayed
for: (1) annulment of the Deeds of Sale between petitioner and the PRC on the one
hand and Tropicana on the other; (2) the reconveyance of the lots in question; (3)
specific performance of the agreement to sell between it and the owners of the lots
and; (4) damages. The petitioner and Cirilos separately moved to dismiss the complaint.
Petitioner for lack of jurisdiction based on sovereign immunity from suit and Cirilos for
being an improper party. An opposition to the motion was filed by private respondent.
The trial court issued an order denying the petitioner’s motion to dismiss, ruling that the
petitioner can no longer be immune as they entered into a business contract. Petitioner
moved for reconsideration. They then filed a Motion for Hearing for the Sole Purpose of
Establishing Factual Allegation for Claim of Immunity as a Jurisdictional Defense to
facilitate the hearing in its defense of sovereign immunity. Private respondents opposed
the motion as well as the motion for reconsideration. The trial court ordered the
resolution be suspended until after trial on the merits and directing the petitioner to file
its answer. Petitioner elevated the matter to the Supreme Court. The petitioner invoked
its privilege of sovereign immunity only on its behalf and on behalf of its official
representatives, the Papal Nuncio. Eventually, the Department of Foreign Affairs filed
for a Motion of Intervention claiming its legal interest on the outcome of the case
concerning the diplomatic immunity of the petitioner. It stated its adoption upon the
claim of the petitioner with regard to its claim for sovereign immunity from suit. This
was opposed by the private respondent. Private respondent insists that the doctrine of
non-suability is not anymore absolute, and that petitioner has divested itself of such a
cloak when, of its own free will, it entered into a commercial transaction for the sale of
a parcel of land located in the Philippines.

ISSUE:
Whether or not respondent trial court has no jurisdiction over petitioner, being a
foreign state enjoying sovereign immunity.

RULING:
NO. As expressed in Section 2 of Article II of the 1987 Constitution, we have
adopted the generally accepted principles of International Law. Even without this
affirmation, such principles of International Law are deemed incorporated as part of the
law of the land as a condition and consequence of our admission in the society of
nations. There are two conflicting concepts of sovereign immunity, each widely held
and firmly established. According to the classical or absolute theory, a sovereign
cannot, without its consent, be made a respondent in the courts of another sovereign.
According to the newer or restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jure imperii of a state, but not with
regard to private acts or acts jure gestionis. Certainly, the mere entering into a contract

40

by a foreign state with a private party cannot be the ultimate test. Such an act can only
be the start of the inquiry. The logical question is whether the foreign state is engaged
in the activity in the regular course of business. If the foreign state is not engaged
regularly in a business or trade, the particular act or transaction must then be tested by
its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is
an act jure imperii, especially when it is not undertaken for gain or profit. In this case,
the Republic of the Philippines has accorded the Holy See the status of a foreign
sovereign. The right of a foreign sovereign to acquire property, real or personal, in a
receiving state, necessary for the creation and maintenance of its diplomatic mission, is
recognized in the 1961 Vienna Convention on Diplomatic Relations. This treaty was
concurred in by the Philippine Senate and entered into force in the Philippines on
November 15, 1965. Here, Lot 5-A was acquired by petitioner as a donation from the
Archdiocese of Manila. The donation was made not for commercial purpose, but for the
use of petitioner to construct thereon the official place of residence of the Papal Nuncio.
The decision to transfer the property and the subsequent disposal thereof are likewise
clothed with a governmental character. Petitioner did not sell Lot 5-A for profit or gain.
It merely wanted to dispose off the same because the squatters living thereon made it
almost impossible for petitioner to use it for the purpose of the donation. The fact that
squatters have occupied and are still occupying the lot, and that they stubbornly refuse
to leave the premises, has been admitted by private respondent in its complaint. The
issue of petitioner’s non-suability can be determined by the trial court without going to
trial in the light of the pleadings, particularly the admission of private respondent.
Besides, the privilege of sovereign immunity in this case was sufficiently established by
the Memorandum and Certification of the Department of Foreign Affairs. As the
department tasked with the conduct of the Philippines’ foreign relations, the
Department of Foreign Affairs has formally intervened in this case and officially certified
that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic
of the Philippines exempt from local jurisdiction and entitled to all the rights, privileges
and immunities of a diplomatic mission or embassy in this country. The determination
of the executive arm of government that a state or instrumentality is entitled to
sovereign or diplomatic immunity is a political question that is conclusive upon the
courts. Where the plea of immunity is recognized and affirmed by the executive branch,
it is the duty of the courts to accept this claim so as not to embarrass the executive arm
of the government in conducting the country’s foreign relations.

41

 REPARATIONS FOR INJURIES SUFFERED IN THE SERVICE OF THE UN
ICJ Reports 1949

As a consequence of the assassination in September 1948, in Jerusalem, of

Count Folke Bernadotte, the United Nations Mediator in Palestine, and other members
of the United Nations Mission to Palestine, the General Assembly asked the Court
whether the United Nations had the capacity to bring an international claim against the
State responsible with a view to obtaining reparation for damage caused to the
Organization and to the victim.

In its Advisory Opinion of 11 April 1949, the Court held that the Organization was
intended to exercise functions and rights which could only be explained on the basis of
the possession of a large measure of international personality and the capacity to
operate upon the international plane. It followed that the Organization had the capacity
to bring a claim and to give it the character of an international action for reparation for
the damage that had been caused to it.

The Court further declared that the Organization can claim reparation not only in
respect of damage caused to itself, but also in respect of damage suffered by the victim
or persons entitled through him.

Although, according to the traditional rule, diplomatic protection had to be

exercised by the national State, the Organization should be regarded in international
law as possessing the powers which, even if they are not expressly stated in the
Charter, are conferred upon the Organization as being essential to the discharge of its
functions. The Organization may require to entrust its agents with important missions in
disturbed parts of the world. In such cases, it is necessary that the agents should
receive suitable support and protection.

The Court therefore found that the Organization has the capacity to claim
appropriate reparation, including also reparation for damage suffered by the victim or
by persons entitled through him. The risk of possible competition between the
Organization and the victim’s national State could be eliminated either by means of a
general convention or by a particular agreement in any individual case.

42

 MAVROMMATICS CASE

FACTS:
The Mavrommatis dispute was about the fate of conflicting concessions for the
supply of water and electricity and associated economic and political control over
Palestine in the interwar period. Both water and electricity were essential to the
aspirations of the Jewish people to create a homeland in this inhospitable part of the
world. The control over water, in particular, has provoked considerable bloodshed in
this region due to water scarcity, and remains a central theme of the contemporary
Arab–Israeli conflict.

The dispute about the concessions led to the three Mavrommatis Palestine
Concessions cases before the PCIJ that are the focus of this chapter. As the sole
dispute about the British Mandate in Palestine, these three cases provided a catalyst for
the PCIJ to address vital constitutional questions concerning the Mandate, including the
legislative powers of the Government of Palestine, the conformity of such legislation
with the British Mandate and the interaction of private law rights and public law from
the vantage point of international law that also characterises many contemporary
investment disputes.

ISSUE:
Whether or not there is dispute

RULING:
Neither the Statute nor the Rules of Court contain any rule regarding the
procedure to be followed in the event of an objection being taken in limine litis to the
Court’s jurisdiction. The Court therefore is at liberty to adopt the principle which it
considers best calculated to ensure the administration of justice, most suited to
procedure before an international tribunal and most in conformity with the fundamental
principles of international law.
For this reason the Court, bearing in mind the fact that its jurisdiction is limited,
that it is invariably based on the consent of the respondent and only exists in so far as
this consent has been given, cannot content itself with the provisional conclusion that
the dispute falls or not within the terms of the Mandate. The Court, before giving
judgment on the merits of the case, will satisfy itself that the suit before it, in the form
in which it has been submitted and on the basis of the facts hitherto established, falls to
be decided by application of the clauses of the Mandate. For the Mandatory has only
accepted the Court’s jurisdiction for such disputes.
The dispute brought before the Court by the Greek Government’s application
relates to the question whether the Government of Palestine and consequently also the
British Government have, since 1921, wrongfully refused to recognise to their full extent
the rights acquired by M. Mavrommatis under the contracts and agreements concluded
by him with the Ottoman authorities in regard to certain public works.

43

 CERTAIN EXPENSES OF THE UNITED NATIONS
Advisory Opinion of July 20, 1962

The question of certain expenses of United Nations (Article17,paragraph 2 of the

Charter)had been put to the Court for an advisory opinion by a resolution adopted by
the General Assembly of the United Nations of 20 December 1961. By nine votes to five
the Court declared that the expenditures authorized in certain General Assemibly
resolutions enumerated in the request for opinion, relating to the United Nations
operations in the Congo and in the Middle East undertaken in pursuance of Security
Council and General Assembly resolutions likewise enumerated in the request, were
"expenses of the Organization" within the meaning of Article.
The Court found that it involved an interpretation of Article 17, paragraph 2 of
the Charter, and that the first question was the meaning of the term “expenses of the
Organization”. The interpretation of the word "expenses" had been linked with the word
"budget" in paragraph 1 of that Article and it had been contended that in both cases
the qualifying adjective "regular" or "administrative" should be understood to be
implied. According to the Court this would be possible only if such qualification must
necessarily be implied from the provisions of the Charter considered as a whole.
Concerning the word "budget" in paragraph 1 of Article 17, the Court found that the
distinction between "administrative budgets" and "operational budgets" had not been
absent from the minds of the drafters of the Charter since it was provided in paragraph
3 of the same Article that the General Assembly "shall examine the
administrativebudgets" of the specialized agencies: if the drafters had intended that
paragraph 1 should be limited to the administrative budget of the United Nations
organization itself, the word "administrative" would have been inserted in paragraph 1
as it had been in paragraph 3.
Every year from 1947 through 1959 the resolutions on these unforeseen and
extraordinary expenses have been adopted without a dissenting vote, except for
1952,1953, and 1954 owing to the fact that in those years the resolution included the
specification of a controversial item – the United Nations Korean war decoration. For
these reasons, the Court held that there should not be a distinction, limitation, or
qualification of the word “budget”.
In interpreting paragraph 2 of Article 17, the Court observed that, on its face,
the term "expenses of the Organization" meant all the expenses and not just certain
types of expenses which might be referred to as "regular expenses". Finding that an
examination of other parts of the Charter showed the variety of expenses which must
inevitably be included within the "expenses of the Organization", the Court did not
perceive any basis for challenging the legality of the settled practice of including such
expenses in the budgetary amounts which the General Assembly proportioned among
the Members in accordance with the authority which was given to it by Article 17,
paragraph 2.
Having thus pointed out on the one hand that the text of Article 17, paragraph 2,
of the Charter could lead to the conclusion that the expenses of the Organization were
the amounts paid out to defray the costs of carrying out the purposes of the
Organization and on the other hand that the examination of the resolutions authorizing
the expenditures referred to in the request for the advisory opinion had led to the
finding that they had been incurred with that end in view; and having also analyzed and
found unfounded the arguments which had been advanced against the conclusion that
the expenditures in question should be considered as expenses of the Organization
within the meaning of Article 17, paragraph 2, of the Charter of the United Nations, the
Court arrived at the conclusion that the question submitted to it by the General
Assembly must be answered in the affirmative.

44

 MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA
Nicaragua v. Unites States of America
June 27, 1986

FACTS:
Nicaragua sued the United States alleging violations of customary law concerning
military and paramilitary activities within Nicaragua. The training, arming, equipping,
financing and supplying counter-revolutionary forces conducted by the United States
have been identified as an act seeking to overthrow the Nicaraguan government,
evidently in violation of the customary international law and the principle of non-
intervention. It further imputed that the direct attacks on its ports, oil installations,
unauthorized flights over its territory, and the mining operations in its ports violate the
principle of respect for territorial sovereignty. On the other hand, their freedom of
communications and of maritime functions were also violated by the laying of mines in
or near the ports.

United States contested the preceding by arguing that such activities were valid and
permitted as it were only done in the exercise of collective self-defense for El Salvador
and other Central American states which were allegedly threatened by Nicaragua
through armed attacks.

ISSUE:
1. Whether or not US violated the principle of non-intervention;
2. Whether or not US violated international law with respect to Nicaragua’s
sovereignty;
3. Whether or not US military and paramilitary activities are justified on the
basis of collective self-defense

RULING:
1. The principle of non-intervention requires that every State has a right to conduct its
affairs without outside interference. A prohibited intervention must accordingly be
one bearing matters in which a State, by the principle of sovereignty, be permitted to
decide freely. Such matters include these choices for a political, economic, social and
cultural system, and the formulation of foreign policy. Intervention is wrongful when
it uses methods of coercion in regard to such choices, which must remain free ones.
The element of coercion, which in the very essence is a prohibited intervention, is
particularly obvious in the present case of an intervention which uses force, either in
the direct form of military action, or in the indirect form of support for subversive or
terrorist armed activities within another State.

2. Relative to the principle of respect for State sovereignty, extending evidently to the
internal waters and territorial sea of every State and to the airspace above its
territory, the laying of mines within the ports as well as in the territorial sea
necessarily affects the sovereignty of the coastal State. Furthermore, the customary
right of innocent passage and the right of free access to ports, which both follow
from the freedom of communications and of maritime commerce, are also infringed
by such mining operations. The absence of any warning or notification with regard to
the mining was not only an unlawful act but also a breach of the principles of
humanitarian law.

3. The principle of non-intervention recognizes certain exceptions which includes the

right of collective self-defense. Under the doctrine of collective self-defense, the state
allegedly being defended must be the victim of an armed attack. An armed attack
must be understood as including not merely an action by regular armed forces across
an international border, but also the sending by or on behalf of a State of armed
bands, groups, irregulars or mercenaries, carrying out acts of armed forces against
another State of such gravity almost amounting to an actual armed attack. The Court

45

held that the assistance to rebels in the form of the provision of weapons or logistical
or other support does not constitute an armed attack. In order to find that an armed
attack warrants an intervention, not only must the attacked State declare that they
are under attack, but they must also request the help of the intervening State.
Accordingly, an intervening State cannot, on its own assessment, invoke the right of
collective self-defense. Simply put, States do not have a right of collective armed
response to acts which do not constitute an armed attack.

46

CASE CONCERNING ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO:
DEMOCRATIC REPUBLIC OF THE CONGO v. UGANDA
International Court of Justice | December 19, 2005

FACTS:
In 1997, President Laurent-Désiré Kabila came into power in the Democratic
Republic of Congo (DRC), with the help of Uganda and Rwanda. Initially, Ugandan and
Rwandan forces were present in the DRC following DRC’s invitation and consent. Then,
the DRC’s relations with Uganda and Rwanda deteriorated, and on 28 July 1998,
President Kabila announced the withdrawal of the DRC’s consent to Rwandan military
presence in the DRC. On 8 August 1998, Kabila accused both Ugandan and Rwandan
forces of invading the DRC. In June 2003, Ugandan forces completely withdrew from
the DRC. On 23 June 1999, the DRC filed an Application instituting proceedings against
the Republic of Uganda in respect of a dispute concerning “acts of armed aggression
perpetrated by Uganda on the territory of the Democratic Republic of the Congo, in
flagrant violation of the United Nations Charter and of the Charter of the Organization
of African Unity.” It argued (1) that Uganda (a) engaged in military and paramilitary
activities against the DRC, (b) occupied DRC territory, and (c) provided military, logistic,
financial and economic support to armed groups in the DRC who operated against the
government; (2) that Uganda committed and failed to prevent violations of human
rights and humanitarian law; and (3) that Uganda engaged in and failed to prevent the
illegal exploitation of Congolese natural resources. The DRC sought as remedies, for
example, the cessation of internationally wrongful acts, reparation, and guarantees of
non-repetition. On the other hand, Uganda argued its presence in the DRC was
justified: (1) until 11 September 1998 based on DRC’s invitation; (2) from 11
September 1998 until 10 July 1999 based on self-defense; and (3) from July 1999 until
June 2003 based on DRC’s consent. The DRC asked the Court to decide that, starting
from 02 August 1998, Uganda had engaged in “armed aggression” in the DRC.

ISSUE:
Whether or not Uganda is under an obligation to make reparation to the DRC for
all injury caused by the violation by Uganda of its obligations under international law.

RULING:
The Court, by sixteen votes to one, finds that the Republic of Uganda, by
engaging in military activities against the Democratic Republic of the Congo on the
latter’s territory, by occupying Ituri and by actively extending military, logistic, economic
and financial support to irregular forces having operated on the territory of the DRC,
violated the principle of non-use of force in international relations and the principle of
non-intervention. The Court finds that Uganda has violated the sovereignty and also the
territorial integrity of the DRC. Uganda’s actions equally constituted an interference in
the internal affairs of the DRC and in the civil war raging there. The unlawful military
intervention by Uganda was of such magnitude and duration that the Court considers it
to be a grave violation of the prohibition on the use of force expressed in Article 2,
paragraph 4, of the Charter. The Court concludes that Uganda is internationally
responsible for violations of international human rights law and international
humanitarian law committed by the UPDF and by its members in the territory of the
DRC and for failing to comply with its obligations as an occupying Power in Ituri. The
Court points out that, while it has pronounced on the violations of international human
rights law and international humanitarian law committed by Ugandan military forces on
the territory of the DRC, the actions of the various parties in the complex conflict in the
DRC have contributed to the immense suffering faced by the Congolese population. The
Court is painfully aware that many atrocities have been committed in the course of the
conflict. It is incumbent on all those involved in the conflict to support the peace
process in the DRC and other peace processes in the Great Lakes area, in order to
ensure respect for human rights in the region. the DRC asks the Court to adjudge and
declare that Uganda is under an obligation to make reparation to the DRC for all injury

47

caused by the violation by Uganda of its obligations under international law. The Court
observes that it is well established in general international law that a State which bears
responsibility for an internationally wrongful act is under an obligation to make full
reparation for the injury caused by that act. Upon examination of the case file, given
the character of the internationally wrongful acts for which Uganda has been found
responsible, the Court considers that those acts resulted in injury to the DRC and to
persons on its territory. Having satisfied itself that this injury was caused to the DRC by
Uganda, the Court finds that Uganda has an obligation to make reparation accordingly.

48

 SAUDI ARABIA (SA) V. ARABIAN AMERICAN OIL COMPANY (ARAMCO)
27 ILR 117

FACTS:

The present case is an arbitration relating to the interpretation of the 1933

Concession Agreement (CA) between the Government of the State of Saudi Arabia (SA)
and Arabian American Oil Company (ARAMCO) giving the latter exclusive rights to
transport oil extracted from its concession in Saudi Arabia.

Article 1 of the CA grants to ARAMCO the exclusive right for a period of 60 years
from the effective date, to explore, prospect, drill for, extract, treat, manufacture,
transport, deal with, carry away, and export petroleum.

Subsequently in 1954, SA concluded the Onassis Agreement which gave the

Saudi Arabian Maritime Tankers (“SATCO”) a 30 year right of priority for the transport
of Saudi Arabia oil.

The central point in dispute submitted to the Arbitration Tribunal is to determine

what rights were conferred upon ARAMCO by the CA, particularly as regards the
transport of Saudi Arabia oil by ARAMCO.

SA argues that the CA purports to authorize ARAMCO to explore areas supposed

to contain oil deposits and in case of discovery, to extract and produce the oil but not to
transport by sea " The term “transport in Article 1 only contemplates the internal
transport from the site of the extraction to the port of loading or the Ras Tanura
refinery for manufacture" It cannot mean external transport outside the limits of Saudi
Arabia" The exclusive right of transport by sea was not included within the expectations
of the parties, as no express stipulation to this effect was included in the Agreement"

ISSUE:

Whether or not Aramco has the right to transport oil by sea

RULING:

YES. The exclusive right to export granted to ARAMCO necessarily implies the
right to transport oil by sea. The terms used in Article 1 of the CA to indicate the
content of ARAMCO’s exclusive right, must be understood in their plain, ordinary, and
usual sense which is the sense accepted in the oil industry. In its capacity as first
concessionaire, ARAMCO enjoys indeed exclusive rights which have the character of
acquired or vested rights and which cannot be taken away from it by SA by means of a
contract concluded with a second concessionaire, even if that contract were equal to its
own contract from a legal point of view. The principle of respect for acquired rights is
one of the fundamental principles both of public international law and of the municipal
law of most civilized States.

“To transport” is to carry beyond persons or things i.e. from one place to
another, whatever the distance between them. Consequently, it can apply to land,
water or sea transport. In connection with the oil business, the methods adopted by the
oil industry cannot be ignored.

According to principles in interpreting concessions, any restriction on the rights

granted by a general clause must be expressed in a clear and unequivocal manner if it
is to be invoked against the concessionaire. In Article 22, only the transportation by air
was expressly excluded. The mere absence of the words “sea transport” cannot mean
its exclusion.

49

 Furthermore, it is impossible to imagine that the parties would want to give the
concessionaire an exclusive right to transport restricted to the territorial waters while
deny this right as regard transportation overseas which is the only kind of
transportation of real interest to the concessionaire.

The legal construction resorted to by SA appears to be contrary to the nature of things,

to the needs of commerce, to the real intention of the parties, and as well as the
wording of various agreements pertaining to the concession.

50

 TINOCO CLAIMS ARBITRATION

FACTS:

The “Tinoco regime” came to power through a coup in Costa Rica in 1917. It
lasted for two years. During this time, the Tinoco regime was recognized as legitimate
by some States, but not large powers such as Great Britain (plaintiff). During its time in
power, the Tinoco regime entered into several contracts (including an oil concession)
with the British government. When the regime fell in 1919, Great Britain brought suit
against Costa Rica (defendant) to enforce the contracts and collect on the Tinoco
regime’s liabilities. Costa Rica argued that the Tinoco regime was not a recognized
government capable of entering into contracts on behalf of the State. Additionally,
Costa Rica argued that since Great Britain itself did not recognize the Tinoco regime as
a government, it could not claim that Tinoco conferred enforceable rights such as the
oil concession on British citizens. In March 1923, the case was considered by an
Arbitrator, United States Chief Justice William H. Taft. Great Britain asserted a claim
against Costa Rica on behalf of the RBC and CCRPC to enforce the contracts and collect
the Tinoco’s regime liabilities.

ISSUE:
Whether or not the non-recognition of a new government by other governments
destroy the de facto status of the government?

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

51

 2005 World Summit Resolution of United Nations General Assembly
60/5. Improving global road safety, October 26, 2005

Resolution 60/5 recalled its previous resolutions 57/309 of 22 May 2003, 58/9
of 5 November 2003, and 58/289 of 14 April 2004 on improving global road safety
after having considered the report of the Secretary General on the global road
safety crisis. The Organization is convinced that responsibility for road safety rests at
the local, municipal and national levels, and further recognized that many developing
countries and countries with economies in transition have limited capacities to
address these issues, and underlining, in this context, the importance of international
cooperation towards further supporting the efforts of developing countries, in
particular, to build capacities in the field of road safety and of providing the financial
and technical support associated with such efforts.
It was observed that there was a continued increase, in particular in developing
countries, in traffic fatalities and injuries worldwide. As these developing countries
need assistance, the Organization reaffirms the importance of addressing global road
safety issues and the need for the further strengthening of international
cooperation, taking into account the needs of developing countries, by building
capacities in the field of road safety, and providing financial and technical support
for their efforts.
The Organization likewise encourages Member States and the international
community, including international and regional financial institutions, to lend financial,
technical and political support, as appropriate, to the United Nations regional
commissions, the World Health Organization and other relevant United Nations
agencies for their efforts to improve road safety. In relation with these, the Member
States are encouraged to adhere to the 1949 Convention on Road Traffic and the
1968 Convention on Road Traffic and Convention on Road Signs and Signals, in order
to ensure a high level of road safety in their countries, and also encourages them
to strive to reduce road traffic injuries and mortality in order to achieve the
Millennium Development Goals. It stressed the importance of the improvement in the
international legal road traffic safety norms, and welcomes in this regard the
work of the Working Party on Road Traffic Safety of the Inland Transport
Committee of the Economic Commission for Europe in the elaboration of a
substantial package of amendments to the 1968 Conventions on Road Traffic and
Road Signs and Signals. The Organization invites Member States to implement the
recommendations of the World Report on Road Traffic Injury Prevention, including
those related to the five main risk factors, namely, the non-use of safety belts and
child restraints; the non-use of helmets; drinking and driving; inappropriate and
excessive speed; as well as the lack of appropriate infrastructure.
To ensure that such will be implemented, the United Nations encourages the
Member States tp establish a lead agency, on a national level, on road safety and
to develop a national action plan to reduce road traffic injuries, by passing and
enforcing legislation, conducting necessary awareness-raising campaigns and putting
in place appropriate methods to monitor and evaluate interventions that are
implemented.

52

 DECLARATION ON PRINICIPLES OF INTERNATIONAL LAW

In view of the Assembly’s affirmation of the importance of 1) progressive

development and codification of the principles of international law concerning friendly
relations and co-operation among States, and 2) maintenance of international peace
and security and for the development of Friendly relations and Co-operation among
States, the terms of the Charter of the United Nations are thereby reaffirmed and the
following principles are thereby codified:

a) States shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any State, or in any other
manner inconsistent with the purposes of the United Nations - a threat or use of
force constitutes a violation of international law and the Charter of the United
Nations and shall never be employed as a means of settling international issues;
further, a war of aggression constitutes a crime against the peace.

ü refrain from the threat or use of force to violate the existing international
boundaries of another or as a means of solving international disputes, including
territorial disputes and problems concerning frontiers of States
ü refrain from the threat or use of force to violate international lines of
demarcation
ü refrain from acts of reprisal involving the use of force
ü refrain from any forcible action which deprives peoples referred to in the
elaboration of the principle of equal rights and self-determination of their right
to self-determination and freedom and independence
ü refrain from organizing or encouraging the organization of irregular forces or
armed bands including mercenaries, for incursion into the territory of another
State
ü refrain from organizing, instigating, assisting or participating in acts of civil
strife or terrorist acts in another State or acquiescing in organized activities
within its territory directed towards the commission of such acts
ü territory of a State shall not be the object of military occupation

b) States shall settle their international disputes by peaceful means in such a manner
that international peace and security and justice are not endangered - seek early and
just settlement of their international disputes by negotiation, inquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements or other peaceful means of their choice. In the event of failure to
reach a solution by any one of the above peaceful means, continue to seek a
settlement of the dispute by other peaceful means agreed upon by them.

States parties to an international dispute, as well as other States shall refrain from
any action which may aggravate the Situation. International disputes shall be settled
on the basis of the Sovereign equality of States and in accordance with the Principle
of free choice of means.

c) The duty not to intervene in matters within the domestic jurisdiction of any State -
no State or group of States has the right to intervene, directly or indirectly, for any
reason whatever, in the internal or external affairs of any other State. Consequently,
armed intervention and all other forms of interference or attempted threats against
the personality of the State or against its political, economic and cultural elements,
are in violation of international law. No State may use or encourage the use of
economic political or any other type of measures to coerce another State in order to
obtain from it the subordination of the exercise of its sovereign rights and to secure
from advantages of any kind. Also, no State shall organize, assist, foment, finance,

53

 incite or tolerate subversive, terrorist or armed activities directed towards the violent
overthrow of the regime of another State, or interfere in civil strife in another State.

The use of force to deprive peoples of their national identity constitutes a violation of
their inalienable rights and of the principle of non-intervention. Every State has an
inalienable right to choose its political, economic, social and cultural systems, without
interference in any form by another State.

d) The duty of States to co-operate with one another – co-operate irrespective of the
differences in their political, economic and social systems, in the various spheres of
international relations.

ü co-operate with other States in the maintenance of international peace and

security
ü co-operate in the promotion of universal respect for, and observance of, human
rights and fundamental freedoms for all, and in the elimination of all forms of
racial discrimination and all forms of religious intolerance
ü conduct their international relations in the economic, social, cultural, technical
and trade fields in accordance with the principles of sovereign equality and non-
intervention
ü take joint and separate action in co-operation with the United Nations

e) The principle of equal rights and self-determination of peoples - all peoples have the
right freely to determine, without external interference, their political status and to
pursue their economic, social and cultural development, and every State has the duty
to respect this right.

f) The principle of sovereign equality of States – States have equal rights and duties
and are equal members of the international community, notwithstanding differences
of an economic, social, political or other nature

ü judicially equal;
ü enjoys the rights inherent in full sovereignty
ü duty to respect the personality of other States
ü territorial integrity and political independence of the State are inviolable
ü right freely to choose and develop its political, social, economic and cultural
systems
ü comply fully and in good faith with its international obligations and to live in
peace with other States.

g) States shall fulfil in good faith the obligations assumed by them – all obligations
assumed by them in accordance with:

ü Charter of the United Nations

ü generally recognized principles and rules of international law
ü international agreements valid under the generally recognized principles and
rules of international law

Where obligations arising under international agreements are in conflict with the
obligations of Members of the United Nations under the Charter of the United
Nations, the obligations under the Charter shall prevail.

54