Você está na página 1de 295

San Beda College

College of Law
A.Y. 2016-2017

Compilation of Case Digests


In
Public International Law

Atty. Ryan Mercader


A.Y. 2016-2017

2K
*CASE DIGESTS*
Treaties and Conventions
1. Fontanilla Qatar v. Bahrain, (ICJ,1994)
2. Verceles Abaya v. Ebdane, GR No. 167919, February 14, 2009
3. Macabato Department of Budget and Management v. Kolonwel Trading, GR
No. 175608, June 8, 2007
4. Mediodia China National Machinery & Equipment Corp. v. Santamaria, GR
No. 185572, February 7, 2012
5. Lim Commissioner of Customs v. Eastern Sea Trading, L-14279,
October 31, 1961
6. Santos, R Bayan v. Executive Secretary Zamora, GR No. 138570, October 10,
2000
7. Delgado Lim v. Executive Secretary, GR. No. 151445, April 11,2002
8. Ching Pimentel v. Executive Secretary, GR No. 158088, July 6,2005
9. Samaniego Akbayan v. Aquino, GR No. 170516, July 16, 2008
10. Abong Nicolas v. Romulo, GR No. 175888, February 11,2009
11. Garcia Bayan Muna v. Executive Secretary, GR No. 159618, February
1,2011
12. Dizon Saguisag v. Executive Secretary, GR No. 212426, January 12,2016

13. Pablo Vinuya v. Executive Secretary, GR No. 162230, April 28,2010


14. Manda Pharmaceutical and Health Care Association v. Duque, GR No.
173034, October 9,2007
15. Tolentino Province of North Cotabato v. GRP Peace Panel, GR No. 183591,
October 14,2008
16. Lledo Reservations to the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide (Advisory Opinion, ICJ
Reports 1951)
17. Rosario Interpretation of Peace Treaties Case (Second Phase, Advisory
Opinion, ICJ Reports 221, 1950)
18. Vitorillo Fisheries Jurisdiction Case (Jurisdiction, United Kingdom v. Iceland,
ICJ Reports 1974)
19. Acosta Danube Dam Case (Hungary v. Slovakia, 27 ILM 1998)
20. Sarmiento Sei Fujii v. California, 38 Cal. 2d 718 (1952), 242 P.2d 617
International Customs
21. Dadayan Kuroda v. Jalandoni, L-2662, March 26,1949 , 83 SCRA 171
22. Pablo Yamashita v. Styer, L-129, December 19, 1945, 75 Phil 563
23. Alih Kookooritchkin v. Solicitor General, L-1812, August 1948, 81 Phil
435
24. De Leon Case Concerning the Military and Paramilitary Activities in and
Against Nicaragua (Nicaragua v. US, ICJ Reports, June 27,1986)
25. Salmasan North Sea Continental Shelf Cases, ICJ Reports, February 20,1969

26. Bringas South West Africa Cases: Ethiopia v. South Africa; Liberia v. South
Africa; Second Phase, July 18,1966); See also: Judge Tanaka’s
Dissenting Opinion

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
2
27. Salonga The Asylum Case (Colombia v. Peru, 17 ILR 28, ICJ Reports,
November 20, 1950)

Nuclear Tests
28. Pelausa New Zealand v. France (1974)
29. Culajara Australia v. France (1974)s
30. De Leon New Zealand v. France (1995) – Request for examination of the
situation on accordance with par. 63 of the Court’s judgment of the
December 20, 1974 in the Nuclear Tests
31. Dadayan Legality of the Use by a State of Nuclear Weapons in Armed
Conflict, (Advisory Opinion), ICJ Reports, July 8,1996
32. Dizon The Paquete Habana, 175 US 677 (1900)
33. Fontanilla Portugal v. India, ICJ Reports, April 12,1960 (Case concerning the
Right of Passage over Indian Territory
34. Delgado Texaco v. Libya, 53 ILR, 1977
General Principles
35. Ching Cambodia v. Thailand, ICJ Reports, 1962
36. Alih Corfu Channel Case, ICJ Reports, April 9,1949
37. Culajara Chorzow Factory Case (1928)
38. Abong Barcelona Traction Light and Power Company Case, ICJ Reports,
1970
39. Acosta British Petroleum v. Libya, 53 ILR 297
40. Lim Saudi Arabia v. Arabian American Oil Co., 27 ILR L17
41. Bringas Prosecutor v. Tadic, ILJ, October 2,1995
42. Garcia Medellin v. Texas, 552 US 491 (2008)

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
3
Treaties and Conventions
Qatar v. Bahrain, (ICJ,1994)
Facts:
The Minister for Foreign Affairs of the State of Qatar filed in the registry of the Court an
Application instituting proceedings against the State of Bahrain in respect of certain disputes between
the two states relating to the sovereignty over the Hawar island, sovereign rights over the shoals of
DIbal and Qit’at Jaradah, and the delamination of the maritime areas of the two states.
Qatar contented that the court had jurisdiction to decide on affairs between the Qatar and
Bahrain over Maritime Delimitation and Territorial questions. The basis of Qatar are the two agreements
between Qatar and Bahrain, proposed by the King of Saudi Arabia on the decision concluded in
December 1987 and December 1990. The two agreements where stated “All the disputed matters shall
be referred to the International court of Justice, at The Hague, for a final ruling binding upon both
parties, who shall have to execute its terms” and “ A formation of a tripartite committee composed of
representatives of the state of Bahrain and Qatar and the Kingdom of Saudi Arabia, for the purpose of
approaching the International Court of Justice, and satisfying the necessary requirement to have the
dispute submitted to the Court in accordance with its regulations and instructions so that a final ruling,
binding upon both parties, be issued.
Bahrain contested the basis of jurisdiction invoked by Qatar, stating that the agreements were
only a meeting.
Issue: Whether or not the Court had jurisdiction?
Held:
Yes. The proposal between the King of Saudi Arabia and the Amir of Qatar dated 19 and 21
December 1987, and between the King of Saudi Arabia and the Amir of Bahrain dated 19 and 26
December 1987, and the document headed 'Minutes' and signed at Doha on 25 December 1990 by the
Ministers for Foreign Affairs of Bahrain, Qatar and Saudi Arabia, are international agreements creating
rights and obligations for the Parties. Therefore, the Court had jurisdiction to decide on the disputes of
Qatar and Bahrain.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
4
Abaya vs Ebdane
G.R. No. 167919
February 14, 2007

Definition of Terms
a) International agreement – shall refer to a contract or understanding, regardless of nomenclature,
entered into between the Philippines and another government in written form and governed by
international law, whether embodied in a single instrument or in two or more related instruments.

b) Treaties – international agreements entered into by the Philippines which require legislative
concurrence after executive ratification. This term may include compacts like conventions, declarations,
covenants and acts.

c) Executive agreements – similar to treaties except that they do not require legislative concurrence.

d) Exchange of Notes - a record of a routine agreement that has many similarities with the private law
contract. The agreement consists of the exchange of two documents, each of the parties being in the
possession of the one signed by the representative of the other.

Facts:
The Government of Japan and the Government of the Philippines based on the Exchange of Notes
through their respective representatives have reached an understanding concerning Japanese loans
to be extended to the Philippines. These loans were aimed at promoting our country’s economic
stabilization and development efforts. In accordance with the agreement reached by the Government
of Japan and the Philippine Government, the Philippines obtained from and was granted a loan by the
Japan Bank for International Cooperation (JBIC)

Under the terms and conditions of Loan Agreement, JBIC agreed to lend the Philippine Government
an amount not exceeding Japanese Yen (Y15,384,000,000) as principal for the implementation of the
Arterial Road Links Development Project (Phase IV) on the terms and conditions set forth in the Loan
Agreement and in accordance with the relevant laws and regulations of Japan. The said amount shall
be used for the purchase of eligible goods and services necessary for the implementation of the above-
mentioned project from suppliers, contractors or consultants.

The proceeds of Loan Agreement was to be used to finance the Arterial Road Links Development
Project (Phase IV), of which the Catanduanes Circumferential Road was a part.

DPWH caused the publication of the "Invitation to Prequalify and to Bid" for the implementation of the
CP I project in two leading national newspapers. 23 foreign and local contractors responded to the
invitation by submitting their accomplished prequalification documents but only seven contractors
submitted their bid proposals.

After further evaluation of the bids, particularly those of the lowest three bidders, the Project Manager
of the Catanduanes Circumferential Road Improvement Project (CCRIP), in his Contractor’s Bid
Evaluation Report recommended the award of the contract to private respondent China Road & Bridge
Corporation

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
5
The Bids and Awards Committee of the DPWH, with the approval of then Acting Secretary Soriquez,
issued the assailed Resolution No. PJHL-A-04-012 dated May 7, 2004 recommending the award in
favor of private respondent China Road & Bridge Corporation of the contract for the implementation of
civil works for CP I, San Andres (Codon) – Virac – Jct. Bato – Viga Road (Catanduanes Circumferential
Road Improvement Project) of the Arterial Roads Links Development Project, Phase IV, located in
Catanduanes Province, under JBIC Loan Agreement. A Contract of Agreement was entered into by
and between the DPWH and private respondent China Road & Bridge Corporation for the
implementation of the CP I project.

Petitioner now seeks to set aside and nullify Resolution No. PJHL-A-04-012 issued by the BAC of the
DPWH which commence the award to private respondent on the ground that the loan agreement
entered into by the Philippines and JBIC is neither a treaty nor an executive agreement. They point out
that in order for an agreement to be considered a treaty or an executive agreement, the parties must
be 2 sovereigns or states. It is also, accordingly, violative of the non-impairment clause set forth in the
consititution. What should therefore apply to the loan, is not what was set forth by the JBIC, but RA
9184 of the Philippine Procurement Act. However, the respondents characterize foreign loan
agreements, including the one at bar, as executive agreements and should be complied with pursuant
to the fundamental principle in international law of pacta sunt servanda.

They also maintain that executive agreements are essentially contracts governing the rights and
obligations of parties, such that, being the law among parties, it must be faithfully adhered to by them.
Thus, it is but incumbent upon the philippine government to perform in good faith the obligations set
forth in the loan agreement in question.

Issue: Whether the procurement loan extended by the JBIC is an executive agreement or treaty

Ruling: The Loan Agreement No. PH-P204 taken in conjunction with the Exchange of Notes dated
December 27, 1999 between the Japanese Government and the Philippine Government is an executive
agreement. The Exchange of Notes expressed that the two governments have reached an
understanding concerning Japanese loans to be extended to the Philippines and that these loans were
aimed at promoting our country’s economic stabilization and development efforts.

Under the circumstances, the JBIC may well be considered an adjunct of the Japanese Government.
Further, Loan Agreement No. PH-P204 is indubitably an integral part of the Exchange of Notes. It forms
part of the Exchange of Notes such that it cannot be properly taken independent thereof.

An exchange of notes is considered a form of an executive agreement, which becomes binding through
executive action without the need of a vote by the Senate or Congress.

Under the fundamental principle of international law of pacta sunt servanda, which is, in fact, embodied
in Section 4 of RA 9184 as it provides that "[a]ny treaty or international or executive agreement affecting
the subject matter of this Act to which the Philippine government is a signatory shall be observed," the
DPWH, as the executing agency of the projects financed by Loan Agreement No. PH-P204, rightfully
awarded the contract for the implementation of civil works for the CP I project to private respondent
China Road & Bridge Corporation.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
6
Department of Budget and Management v. Kolonwel Trading, GR No. 175608, June 8, 2007
FACTS:

In the middle of 2005, the DepEd requested the services of the DBM-PS to undertake the
aforementioned procurement. Earlier, the Executive Director of the Government Procurement Policy
Board (GPPB), in reply to a DepEd query, stated that procurement[s] for MAKABAYAN textbooks where
funds therefore (sic) are sourced from World Bank Loan shall be governed by the applicable
procurement guidelines of the foreign lending institution. The 2005 Call for Submission of Textbooks
and Teachers Manuals shall be viewed vis--vis relevant World Bank guidelines.

On May 11, 2006, the IABAC informed Kolonwel of its or its bids failure to post qualify and of the
grounds for the failure.

In its reply-letter of May 18, 2006, Kolonwel raised several issues and requested that its disqualification
be reconsidered and set aside. In reaction, IABAC apprised WB of Kolonwels concerns stated in its
letter-reply.

On June 23, 2006, the DBM-PS IABAC chairman informed Kolonwel of the denial of its request
for reconsideration and of the WBs concurrence with the denial. The IABAC denied, on September 8,
2006, a second request for reconsideration of Kolonwel after WB found the reasons therefor, as detailed
in PS IABAC Res. No. 001-2006-B dated July 18, 2006, unmeritorious, particularly on the aspect of
cover stock testing.

Such was the state of things when on, October 12, 2006, Kolonwel filed with the RTC of Manila a
special civil action for certiorari and prohibition with a prayer for a temporary restraining order (TRO)
and/or writ of preliminary injunction. Docketed as SP Civil Case No. 06-116010, and raffled to Branch
18 of the court, the petition sought to nullify IABAC Res. Nos. 001-2006 and 001-2006-A and to set
aside the contract awards in favor of Vibal and Watana. In support of its TRO application, Kolonwel
alleged, among other things, that the supply-awardees were rushing with the implementation of the
void supply contracts to beat the loan closing-date deadline.

ISSUE: Whether or not the foreign loan agreements with international financial institutions, partake of
an executive or international agreement and shall govern the procurement of goods necessary to
implement the project.

HELD: In the light, however, of the Manila RTCs holding that the WB Guidelines on Procurement under
IBRD Loans do not in any way provided superiority over local laws on the matter, the Court wishes to
state the following observation:

As may be recalled, all interested bidders were put on notice that the DepEds procurement project was
to be funded from the proceeds of the RP-IBRD Loan No. 7118-PH, Section 1, Schedule 4 of which
stipulates that Goods shall be procured in accordance with the provisions of Section 1 of the Guidelines
for Procurement under IBRD Loans. Accordingly, the IABAC conducted the bidding for the supply of
textbooks and manuals based on the WB Guidelines, particularly the provisions on International
Competitive Bidding (ICB). Section 4 of R.A. No. 9184 expressly recognized this particular process,
thus:

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
7
Sec. 4. Scope and application. - This Act shall apply to the Procurement of Goods and
Consulting Services, regardless of source of funds, whether local or foreign by all
branches and instrumentalities of government. Any treaty or international or executive
agreement affecting the subject matter of this Act to which the Philippine government is
a signatory shall be observed. (Emphasis added.)

The question as to whether or not foreign loan agreements with international financial institutions, such
as Loan No. 7118-PH, partake of an executive or international agreement within the purview of the
Section 4 of R.A. No. 9184, has been answered by the Court in the affirmative in Abaya,
supra. Significantly, Abaya declared that the RP-JBIC loan agreement was to be of governing
application over the CP I project and that the JBIC Procurement Guidelines, as stipulated in the loan
agreement, shall primarily govern the procurement of goods necessary to implement the main project.

Under the fundamental international law principle of pacta sunt servanda, which is in fact embodied in
the afore-quoted Section 4 of R.A. No. 9184, the RP, as borrower, bound itself to perform in good faith
its duties and obligation under Loan No. 7118- PH. Applying this postulate in the concrete to this
case, the IABAC was legally obliged to comply with, or accord primacy to, the WB Guidelines on the
conduct and implementation of the bidding/procurement process in question.

WHEREFORE, the instant consolidated petitions are GRANTED and the assailed Order dated
December 4, 2006 of the Regional Trial Court of Manila in its SP Case No. 06-116010 is
NULLIFIED and SET ASIDE.

No cost.
SO ORDERED.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
8
China National Machinery & Equipment Corp. v. Santamaria, GR No. 185572, February 7, 2012
Doctrine:

The restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an individual and can thus be deemed
to have tacitly given its consent to be sued only when it enters into business contracts. It does not apply
where the contract relates to the exercise of its sovereign functions.|

[A]n international agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation.

Facts:
On 14 September 2002, petitioner China National Machinery& Equipment Corp. (Group) (CNMEG),
represented by its chairperson, Ren Hongbin, entered into a Memorandum of Understanding with the
North Luzon Railways Corporation(Northrail), represented by its president, Jose L. Cortes, Jr. for the
conduct of a feasibility study on a possible railway line from Manila to San Fernando, La Union (the
Northrail Project).On 30 August 2003, the Export Import Bank of China (EXIM Bank)and the Department
of Finance of the Philippines (DOF) entered into a Memorandum of Understanding (Aug 30 MOU),
wherein China agreed to extend Preferential Buyer‘s Credit to the Philippine government to finance the
North rail Project. The Chinese government designated EXIM Bank as the lender, while the Philippine
government named the DOF as the borrower. Under the Aug 30 MOU, EXIM Bank agreed to extend
an amount not exceeding USD 400,000,000 in favor of the DOF, payable in 20 years, with a 5-year
grace period, and at the rate of 3% per annum. On 1 October 2003, the Chinese Ambassador to the
Philippines,Wang Chungui (Amb. Wang), wrote a letter to DOF Secretary Jose Isidro Camacho (Sec.
Camacho) informing him of CNMEG‘s designation as the Prime Contractor for the Northrail Project.On
30 December 2003, Northrail and CNMEG executed a Contract Agreement for the construction of Sec.
1, Phase I of the North Luzon Railway System from Caloocan to Malolos on a turnkey basis (the
Contract Agreement)
The contract price for the Northrail Project was pegged at USD 421,050,000.On 26 February 2004, the
Philippine government and EXIM Bank entered into a counterpart financial agreement Buyer Credit
Loan Agreement No. In the Loan Agreement, EXIM Bank agreed to extend Preferential Buyer‘s Credit
in the amount of USD 400,000,000 in favor of the Philippine government in order to finance the
construction of Phase I of the Northrail Project. On 13 February 2006, respondents filed a Complaint
for Annulment of Contract and Injunction with Urgent Motion for Summary Hearing to Determine the
Existence of Facts and Circumstances Justifying the Issuance of Writs of Preliminary Prohibitory and
Mandatory Injunction and/or TRO against CNMEG, the Office of the Executive Secretary, the DOF, the
Department of Budget and Management, the National Economic Development Authority and Northrail.
The case was filed before the Regional Trial Court, National Capital Judicial Region, Makati City,
Branch 145 (RTC Br. 145). In the Complaint, respondents alleged that the Contract Agreement and the
Loan Agreement were void for being contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A.
No. 9184), otherwise known as the Government Procurement Reform Act; (c) Presidential Decree
No.1445, otherwise known as the Government Auditing Code; and (d)Executive Order No. 292,
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
9
otherwise known as the Administrative Code.On 15 May 2007, RTC Br. 145 issued an Omnibus Order
denying
CNMEG‘s Motion to Dismiss and setting the case for summary hearing to determine whether the
injunctive reliefs prayed for should be issued. CNMEG then filed a Motion for Reconsideration, which
was denied by the trial court in an Order dated 10 March 2008.
Thus, CNMEG filed before the CA a Petition for Certiorari with Prayer for the Issuance of TRO and/or
Writ of Preliminary Injunction dated 4 April 2008.the appellate court dismissed the Petition for Certiorari.
Subsequently, CNMEG filed a Motion for Reconsideration, which was denied by the CA in a Resolution
dated 5 December 2008.
Petitioners Argument:
Petitioner claims that the EXIM Bank extended financial assistance to Northrail because the bank was
mandated by the Chinese government, and not because of any motivation to do business in the
Philippines, it is clear from the foregoing provisions that the Northrail Project was a purely commercial
transaction.
Respondents Argument:
respondents alleged that the Contract Agreement and the Loan Agreement were void for being contrary
to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise known as the Government
Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as the Government
Auditing Code; and (d) Executive Order No. 292,otherwise known as the Administrative Code.
Issues:
Whether CNMEG is entitled to immunity, precluding it from being sued before a local court.
Whether the Contract Agreement is an executive agreement, such that it cannot be questioned
by or before a local court.
Held:
No. Applying the foregoing ruling to the case at bar, it is readily apparent that CNMEG cannot claim
immunity from suit, even if it contends that it performs governmental functions. Its designation as the
Primary Contractor does not automatically grant it immunity, just as the term "implementing agency"
has no precise definition for purposes of ascertaining whether GTZ was immune from suit. Although
CNMEG claims to be a government-owned corporation, it failed to adduce evidence that it has not
consented to be sued under Chinese law. Thus, following this Court's ruling in Deutsche Gesellschaft, in
the absence of evidence to the contrary, CNMEG is to be presumed to be a government-owned and -
controlled corporation without an original charter. As a result, it has the capacity to sue and be sued
under Section 36 of the Corporation Code.|||
The Court explained the doctrine of sovereign immunity in Holy See v. Rosario, to wit: 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.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
10
According to the newer or restrictive theory, the immunity of the sovereign is recognized only with
regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure
gestionis (Emphasis supplied; citations omitted.) As it stands now, the application of the doctrine of
immunity from suit has been restricted to sovereign or governmental activities (jure imperii).
The mantle of state immunity cannot be extended to commercial, private and proprietary acts jure
gestionis).
No. The Contract Agreement is not an executive agreement. Article 2 (1) of the Vienna Convention
on the Law of Treaties (Vienna Convention) defines a treaty as follows:
[A]n international agreement concluded between States in written form and governed
by international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.
In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to a treaty,
except that the former (a) does not require legislative concurrence; (b) is usually less formal; and
(c) deals with a narrower range of subject matters.
Despite these differences, to be considered an executive agreement, the following three requisites
provided under the Vienna Convention must nevertheless concur: (a) the agreement must be
between states; (b) it must be written; and (c) it must governed by international law. The first and
the third requisites do not obtain in the case at bar.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
11
Commissioner of Customs v. Eastern Sea Trading, L-14279, October 31, 1961
FACTS:
Respondent EST was the consignee of several shipments of onion and garlic which arrived at the Port
of Manila. In as much as none of the shipments had the certificate required by Central Bank Circulars
Nos. 44 and 45 for the release thereof, the goods thus imported were seized and subjected to forfeiture
proceedings for alleged violations of section 1363(f) of the Revised Administrative Code, in relation to
the aforementioned circulars of the Central Bank.

EST argues that:


1. the Central Bank has no authority to regulate transactions not involving foreign exchange; that the
shipments in question are in the nature of "no-dollar" imports; that, as such, the aforementioned
shipments do not involve foreign exchange;
2. that insofar as a Central Bank license and a certificate authorizing the importation or release of the
goods under consideration are required by Central Bank Circulars Nos. 44 and 45, the latter are
null and void;
3. that the seizure and forfeiture of the goods imported from Japan cannot be justified under Executive
Order No. 328, not only because the same seeks to implement an executive agreement —
extending the effectivity of our Trades and Financial Agreements with Japan — which (executive
agreement), it believed, is of dubious validity, but, also, because there is no governmental agency
authorized to issue the import license required by the aforementioned executive order.

The Court of Tax Appeals entertained doubts on the legality of the executive agreement sought to be
implemented by Executive Order No. 328, owing to the fact that our Senate had not concurred in the
making of said executive agreement. The concurrence of said House of Congress is required by our
fundamental law in the making of "treaties" (Constitution of the Philippines, Article VII, Section 10[7]),
which are, however, distinct and different from "executive agreements," which may be validly entered
into without such concurrence.

ISSUE: W/N the EO is subject to the concurrence of at least 2/3 of the Senate

HELD: NO. Treaties are formal documents which require ratification with the approval of two thirds of
the Senate. Executive agreements become binding through executive action without the need of a vote
by the Senate or by Congress. Agreements concluded by the President which fall short of treaties are
commonly referred to as executive agreements and are no less common in our scheme of government
than are the more formal instruments — treaties and conventions. They sometimes take the form of
exchanges of notes and at other times that of more formal documents denominated "agreements" time
or "protocols". The point where ordinary correspondence between this and other governments ends
and agreements — whether denominated executive agreements or exchanges of notes or otherwise
— begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to
discuss here the large variety of executive agreements as such, concluded from time to time. Hundreds
of executive agreements, other than those entered into under the trade-agreements act, have been
negotiated with foreign governments. . . . It would seem to be sufficient, in order to show that the trade
agreements under the act of 1934 are not anomalous in character, that they are not treaties, and that
they have abundant precedent in our history, to refer to certain classes of agreements heretofore
entered into by the Executive without the approval of the Senate. They cover such subjects as the
inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft,
customs matters, and commercial relations generally, international claims, postal matters, the
registration of trademarks and copyrights, etcetera. Some of them were concluded not by specific
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
12
congressional authorization but in conformity with policies declared in acts of Congress with respect to
the general subject matter, such as tariff acts; while still others, particularly those with respect of the
settlement of claims against foreign governments, were concluded independently of any legislation.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
13
Bayan v. Executive Secretary Zamora, GR No. 138570, October 10, 2000
Facts: Petitioner Bayan Muna is a duly registered party-list group established to represent the
marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign
Affairs during the period material to this case. Respondent Alberto Romulo was impleaded in his
capacity as then Executive Secretary.
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome Statute establishing the International
Criminal Court (ICC) with “the power to exercise its jurisdiction over persons for the most serious crimes
of international concern x x x and shall be complementary to the national criminal jurisdictions.” The
serious crimes adverted to cover those considered grave under international law, such as genocide,
crimes against humanity, war crimes, and crimes of aggression.

On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome Statute
which, by its terms, is “subject to ratification, acceptance or approval” by the signatory states. As of the
filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the
ratification, approval and concurrence process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP,
represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under
the US Embassy Note adverted to and put in effect the Agreement with the US government. In esse,
the Agreement aims to protect what it refers to and defines as “persons” of the RP and US from frivolous
and harassment suits that might be brought against them in international tribunals.8 It is reflective of
the increasing pace of the strategic security and defense partnership between the two countries. As of
May 2, 2003, similar bilateral agreements have been effected by and between the US and 33 other
countries.

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, “persons” are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not, absent the express consent of the
first Party,
(a) be surrendered or transferred by any means to any international tribunal for any purpose, unless
such tribunal has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a
third country, for the purpose of surrender to or transfer to any international tribunal, unless such tribunal
has been established by the UN Security Council.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
14
3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third
country, the [US] will not agree to the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the UN Security Council, absent the
express consent of the Government of the Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third
country, the [GRP] will not agree to the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the UN Security Council, absent the
express consent of the Government of the [US].
5. This Agreement shall remain in force until one year after the date on which one party notifies the
other of its intent to terminate the Agreement. The provisions of this Agreement shall continue to apply
with respect to any act occurring, or any allegation arising, before the effective date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender
agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of
diplomatic notes constituted a legally binding agreement under international law; and that, under US
law, the said agreement did not require the advice and consent of the US Senate.
In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and
ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as
without force and effect.

Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void ab initio for contracting
obligations that are either immoral or otherwise at variance with universally recognized principles of
international law.
Ruling: The petition is bereft of merit.
Validity of the RP-US Non-Surrender Agreement
Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that E/N
BFO-028-03 cannot be a valid medium for concluding the Agreement.

Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines,


practices, and jargons––is untenable. One of these is the doctrine of incorporation, as expressed in
Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles
of international law and international jurisprudence as part of the law of the land and adheres to the
policy of peace, cooperation, and amity with all nations. An exchange of notes falls “into the category
of inter-governmental agreements,” which is an internationally accepted form of international
agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as
follows:

An “exchange of notes” is a record of a routine agreement, that has many similarities with the private
law contract. The agreement consists of the exchange of two documents, each of the parties being in
the possession of the one signed by the representative of the other. Under the usual procedure, the
accepting State repeats the text of the offering State to record its assent. The signatories of the letters
may be government Ministers, diplomats or departmental heads. The technique of exchange of notes
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
15
is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process
of legislative approval.
In another perspective, the terms “exchange of notes” and “executive agreements” have been used
interchangeably, exchange of notes being considered a form of executive agreement that becomes
binding through executive action. On the other hand, executive agreements concluded by the President
“sometimes take the form of exchange of notes and at other times that of more formal documents
denominated ‘agreements’ or ‘protocols.’” As former US High Commissioner to the Philippines Francis
B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts:

The point where ordinary correspondence between this and other governments ends and agreements
– whether denominated executive agreements or exchange of notes or otherwise – begin, may
sometimes be difficult of ready ascertainment. x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-Surrender
Agreement itself, or as an integral instrument of acceptance thereof or as consent to be bound––is a
recognized mode of concluding a legally binding international written contract among nations.
Agreement Not Immoral/Not at Variance with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations
and/or being at variance with allegedly universally recognized principles of international law. The
immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, “leaves criminals
immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity;
x x x it precludes our country from delivering an American criminal to the [ICC] x x x.”63
The above argument is a kind of recycling of petitioner’s earlier position, which, as already discussed,
contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the
process undermined its treaty obligations under the Rome Statute, contrary to international law
principles.
The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly
described by the Solicitor General, “is an assertion by the Philippines of its desire to try and punish
crimes under its national law. x x x The agreement is a recognition of the primacy and competence of
the country’s judiciary to try offenses under its national criminal laws and dispense justice fairly and
judiciously.”

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos
and Americans committing high crimes of international concern to escape criminal trial and punishment.
This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute
can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the
US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries
to the Rome Statute have been met. For perspective, what the Agreement contextually prohibits is the
surrender by either party of individuals to international tribunals, like the ICC, without the consent of the
other party, which may desire to prosecute the crime under its existing laws. With the view we take of
things, there is nothing immoral or violative of international law concepts in the act of the Philippines of
assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
16
Lim v. Executive Secretary, GR. No. 151445, April 11,2002
Doctrine: International Law v. Muncipal Law, Certiorari, Incorporation Clause, Treaties

FACTS: Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed
forces of the United States of America started arriving in Mindanao to take partin "Balikatan 02-1” on
January 2002. The Balikatan 02-1 exercises involves the simulation of joint military maneuvers
pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines
and the United States in 1951. The exercise is rooted from the international anti-terrorism campaign
declared by President George W. Bush in reaction to the 3 commercial aircrafts hijacking that smashed
into twin towers of the World Trade Center in New York City and the Pentagon building in Washington,
D.C. allegedly by the al-Qaeda headed by the Osama bin Laden that occurred on September 11, 2001.
Arthur D. Lim and Paulino P. Ersando as citizens, lawyers and taxpayers filed a petition for certiorari
and prohibition attacking the constitutionality of the joint exercise. Partylists Sanlakas and Partido Ng
Manggagawa as residents of Zamboanga and Sulu directly affected by the operations filed a petition-
in-intervention.
The Solicitor General commented the prematurity of the action as it is based only on a fear of future
violation of the Terms of Reference and impropriety of availing of certiorari to ascertain a question of
fact specifically interpretation of the VFA whether it is covers "Balikatan 02-1” and no question of
constitutionality is involved. Moreover, there is lack of locus standi since it does not involve tax
spending and there is no proof of direct personal injury.

ISSUE: WON the petition and the petition-in-intervention should prosper

HELD: NO. Petition is dismissed. The VFA itself permits US personnel to engage on an impermanent
basis, in “activities”, the exact meaning of which is left undefined. The sole encumbrance placed on its
definition is couched in the negative, in that the US personnel “must abstain from any activity
inconsistent with the spirit of this agreement, and in particular, from any political activity.”
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 umbrella of sanctioned or allowable activities in the context of the agreement. Both the history
and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related
activities – as opposed to combat itself – such as the one subject of the instant petition, are
Indeedauthorized.
Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and
international agreements to which the Philippines is a party, must be read in the context of the 1987
Constitution especially Sec. 2, 7 and 8 of Article 2: Declaration of Principles and State Policies in this
case. The Constitution also regulates the foreign relations powers of the Chief Executive when it
provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by
at least two-thirds of all the members of the Senate." Even more pointedly Sec. 25 on Transitory
Provisions which shows antipathy towards foreign military presence in the country, or of foreign
influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
17
exception.

International Law vs. Fundamental Law and Municipal Laws


Conflict arises then between the fundamental law and our obligations arising from international
agreements.
Philip Morris, Inc. v. Court of Appeals: “Withal, the fact that international law has been made part of the
law of the land does not by any means imply the primacy of international law over national law in the
municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international
law are given a standing equal, not superior, to national legislation.”
From the perspective of public international law, a treaty is favored over municipal law pursuant to the
principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and
must be performed by them in good faith." Further, a party to a treaty is not allowed to "invoke the
provisions of its internal law as justification for its failure to perform a treaty."
Our Constitution espouses the opposing view as stated in section 5 of Article VIII: “The Supreme Court
shall have the following powers: xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.”
Ichong v. Hernandez: “provisions of a treaty are always subject to qualification or amendment by a
subsequent law, or that it is subject to the police power of the State”
Gonzales v. Hechanova: “our Constitution authorizes the nullification of a treaty, not only when it
conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.”

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
18
Pimentel v. Executive Secretary, GR No. 158088, July 6,2005
Facts:
The petitioners filed a petition for mandamus to compel the Office of the Executive Secretary
and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the
International Criminal Court to the Senate of the Philippines for its concurrence pursuant to Sec. 21,
Art VII of the 1987 Constitution. The Rome Statute established the International Criminal Court which
will have jurisdiction over the most serious crimes as genocide, crimes against humanity, war crimes
and crimes of aggression as defined by the Statute. The Philippines signed the Statute through the
Charge d’ Affairs of the Philippine Mission to the United Nations. The provisions of the Statute however
require that it be subject to ratification, acceptance or approval of the signatory state. Petitioners
contend that ratification of a treaty, under both domestic and international law, is a function of the
Senate, hence it is the duty of the Executive Department to transmit the signed copy to the senate to
allow it to exercise its discretion.

Issue: Whether or not the Exec. Secretary and the DFA have the ministerial duty to transmit to the
Senate the copy of the Rome Statute signed by a member of the Philippine mission to the U.N. even
without the signature of the President.
Held: No. The President as the head of state is the sole organ and authorized in the external relations
and he is also the country's sole representative with foreign nations, He is the mouthpiece with respect
to the country's foreign affairs. In treaty-making, the President has the sole authority to negotiate with
other states and enter into treaties but this power is limited by the Constitution with the 2/3 required
vote of all the members of the Senate for the treaty to be valid. (Sec. 21, Art VII). The legislative branch
part is essential to provide a check on the executive in the field of foreign relations, to ensure the
nation's pursuit of political maturity and growth.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
19
Akbayan v. Aquino, GR No. 170516, July 16, 2008
DOCTRINE: Diplomatic negotiations are covered by Executive Privilege.

FACTS:

The petitioners non-government organizations, Congresspersons, citizens and taxpayers seek


via the present petition for mandamus and prohibition to obtain from respondents the 1) full text of the
Japan-Philippines Economic Partnership Agreement (JPEPA) including the Philippine and 2)
Japanese offers submitted during the negotiation process and all pertinent attachments and
annexes thereto.

According to the petitioner, the refusal of the government to disclose the documents bearing on
the JPEPA negotiations violates their right to information on matters of public concern ]and contravenes
other constitutional provisions on transparency, such as that on the policy of full public disclosure of all
transactions involving public interest. They also argued that non-disclosure of the same documents
undermines their right to effective and reasonable participation in all levels of social, political, and
economic decision-making.

ISSUE:
1. WON the full text of JPEPA shall be disclosed in public?
2. WON the offers submitted during the JPEPA negotiation process and all pertinent attachments
and annexes thereto shall also be disclosed to the petitioners?

HELD:
1. This issue has been rendered moot and academic since the full text of JPEPA was published
during the pendency of the petition.

2. NO. The Court held that while JPEPA is a matter of public concern, the demand for copies of
the Philippine and Japanese offers submitted during the JPEPA negotiations must be denied
since these are covered by executive privilege citing the case of PMPF vs. Manglapuz. It further
stressed that diplomatic negotiations are privileged in all stages of the negotiation. It also
mentioned that the petitioners failed to present a sufficient showing of need to overcome the
claim of privilege in the case at bar.

The Court explained that it is reasonable to conclude that the Japanese representatives
submitted their offers with the understanding that historic confidentiality would govern
the same. Disclosing these offers could impair the ability of the Philippines to deal not
only with Japan but with other foreign governments in future negotiations. And that a
ruling that Philippine offers in treaty negotiations should now be open to public scrutiny
would discourage future Philippine representatives from frankly expressing their views
during negotiations. While, on first impression, it appears wise to deter Philippine
representatives from entering into compromises, it bears noting that treaty negotiations, or any
negotiation for that matter, normally involve a process of quid pro quo, and oftentimes
negotiators have to be willing to grant concessions in an area of lesser importance in order to
obtain more favorable terms in an area of greater national interest.

OTHER DOCTRINE/S:

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
20
“By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is
the sole organ and authority in the external affairs of the country. In many ways, the President
is the chief architect of the nation's foreign policy… As regards the power to enter into treaties
or international agreements, the Constitution vests the same in the President, subject only to the
concurrence of at least two thirds vote of all the members of the Senate. Into the field of
negotiation the Senate cannot intrude, and Congress itself is powerless to invade "- BAYAN vs
ERMITA

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
21
Bayan Muna v. Executive Secretary, GR No. 159618, February 1,2011
DOCTRINES:
The Philippines adopts the generally accepted principles of international law and international
jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and
amity with all nations. An exchange of notes falls into the category of inter-governmental
agreements, which is an internationally accepted form of international agreement.
 The power to enter into executive agreements has long been recognized to be lodged with the
President. This authority of the President to enter into executive agreements without the
concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. The
rationale behind this principle is the inviolable doctrine of separation of powers among the
legislative, executive and judicial branches of the government.

FACTS:
On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed the Rome Statute
which, by its terms, is subject to ratification, acceptance or approval by the signatory states. As of the
filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the
ratification, approval and concurrence process. The Philippines is not among the 92. On May 9, 2003,
then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of Foreign
Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement, hereinafter)
between the USA and the RP. the RP, represented by then DFA Secretary Ople, agreed with and
accepted the US proposals embodied under the US Embassy Note adverted to and put in effect the
Agreement with the US government.

In esse, the Agreement aims to protect what it refers to and defines as persons of the RP and US from
frivolous and harassment suits that might be brought against them in international tribunals. In response
to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender agreement,
Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes
constituted a legally binding agreement under international law; and that, under US law, the said
agreement did not require the advice and consent of the US Senate. In this proceeding, Bayan Muna
imputes grave abuse of discretion to respondents in concluding and ratifying the Agreement and prays
that it be struck down as unconstitutional, or at least declared as without force and effect.

ISSUES:
1. Whether or not the Agreement was contracted validly
2. Whether or not the Agreement, which has not been submitted to the Senate for concurrence,
contravenes and undermines the Rome Statute and other treaties.

RULING:
1. YES. Bayan Muna is perhaps taken unaware of certain well-recognized international doctrines,
practices, and jargonsis untenable. One of these is the doctrine of incorporation, as expressed in
Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles
of international law and international jurisprudence as part of the law of the land and adheres to the
policy of peace, cooperation, and amity with all nations. An exchange of notes falls into the category of
inter-governmental agreements, which is an internationally accepted form of international agreement.

In another perspective, the terms exchange of notes and executive agreements have been used
interchangeably, exchange of notes being considered a form of executive agreement that becomes
binding through executive action. On the other hand, executive agreements concluded by the President
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
22
sometimes take the form of exchange of notes and at other times that of more formal documents
denominated agreements or protocols. It is fairly clear from the foregoing disquisition that E/N BFO-
028-03 be it viewed as the Non-Surrender Agreement itself, or as an integral instrument of acceptance
thereof or as consent to be bound is a recognized mode of concluding a legally binding international
written contract among nations.

Furthermore, under international law, there is no difference between treaties and executive agreements
in terms of their binding effects on the contracting states concerned, as long as the negotiating
functionaries have remained within their powers. There are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or an executive agreement as an instrument of international
relations. The primary consideration in the choice of the form of agreement is the parties’ intent and
desire to craft an international agreement in the form they so wish to further their respective interests.
Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect of the
enforcement of a treaty or an executive agreement, as the parties in either international agreement
each labor under the pacta sunt servanda principle. But over and above the foregoing considerations
is the fact that save for the situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution
when a treaty is required, the Constitution does not classify any subject, like that involving political
issues, to be in the form of, and ratified as, a treaty. What the Constitution merely prescribes is that
treaties need the concurrence of the Senate by a vote defined therein to complete the ratification
process. Bayan Muna’s reliance on Adolfo is misplaced, said case being inapplicable owing to different
factual milieus. There, the Court held that an executive agreement cannot be used to amend a duly
ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not require
the concurrence of the Senate for its ratification may not be used to amend a treaty that, under the
Constitution, is the product of the ratifying acts of the Executive and the Senate. The presence of a
treaty, purportedly being subject to amendment by an executive agreement, does not obtain under the
premises.

2. NO. Contrary to Bayan Muna’s pretense, the Agreement does not contravene or undermine, nor
does it differ from, the Rome Statute. Far from going against each other, one complements the other.
As a matter of fact, the principle of complementarity underpins the creation of the ICC. As aptly pointed
out by respondents and admitted by petitioners, the jurisdiction of the ICC is to be complementary to
national criminal jurisdictions [of the signatory states].

Significantly, the sixth preambular paragraph of the Rome Statute declares that it is the duty of every
State to exercise its criminal jurisdiction over those responsible for international crimes. This provision
indicates that primary jurisdiction over the so-called international crimes rests, at the first instance, with
the state where the crime was committed; secondarily, with the ICC in appropriate situations
contemplated under Art. 17, par. 1 of the Rome Statute. Of particular note is the application of the
principle of ne bis in idem under par. 3 of Art. 20, Rome Statute, which again underscores the primacy
of the jurisdiction of a state vis-a-vis that of the ICC. As far as relevant, the provision states that no
person who has been tried by another court for conduct x x x [constituting crimes within its jurisdiction]
shall be tried by the [International Criminal] Court with respect to the same conduct x x x. The foregoing
provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional conflict
between the Philippines, as party to the non-surrender agreement, and the ICC; or the idea of the
Agreement substantially impairing the value of the RPs undertaking under the Rome Statute. Ignoring
for a while the fact that the RP signed the Rome Statute ahead of the Agreement, it is abundantly clear
to us that the Rome Statute expressly recognizes the primary jurisdiction of states, like the RP, over
serious crimes committed within their respective borders, the complementary jurisdiction of the ICC
coming into play only when the signatory states are unwilling or unable to prosecute.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
23
Moreover, under international law, there is a considerable difference between a State-Party and a
signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only
obliged to refrain from acts which would defeat the object and purpose of a treaty; whereas a State-
Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith. In the
instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and not a
State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which would
defeat the object and purpose of the Rome Statute. Any argument obliging the Philippines to follow any
provision in the treaty would be premature. As a result, petitioners argument that State-Parties with
non-surrender agreements are prevented from meeting their obligations under the Rome Statute,
specifically Arts. 27, 86, 89 and 90, must fail. These articles are only legally binding upon State-Parties,
not signatories. Furthermore, a careful reading of said Art. 90 would show that the Agreement is not
incompatible with the Rome Statute. Specifically, Art. 90(4) provides that [i]f the requesting State is a
State not Party to this Statute the requested State, if it is not under an international obligation to
extradite the person to the requesting State, shall give priority to the request for surrender from the
Court. x x x In applying the provision, certain undisputed facts should be pointed out: first, the US is
neither a State-Party nor a signatory to the Rome Statute; and second, there is an international
agreement between the US and the Philippines regarding extradition or surrender of persons, i.e., the
Agreement. Clearly, even assuming that the Philippines is a State- Party, the Rome Statute still
recognizes the primacy of international agreements entered into between States, even when one of the
States is not a State-Party to the Rome Statute.

As it were, the Agreement is but a form of affirmance and confirmance of the Philippines national
criminal jurisdiction. Thus, the Philippines may decide to try persons of the US, as the term is
understood in the Agreement, under our national criminal justice system. Or it may opt not to exercise
its criminal jurisdiction over its erring citizens or over US persons committing high crimes in the country
and defer to the secondary criminal jurisdiction of the ICC over them. As to persons of the US whom
the Philippines refuses to prosecute, the country would, in effect, accord discretion to the US to exercise
either its national criminal jurisdiction over the person concerned or to give its consent to the referral of
the matter to the ICC for trial. In the same breath, the US must extend the same privilege to the
Philippines with respect to persons of the RP committing high crimes within US territorial jurisdiction.

In the context of the Constitution, there can be no serious objection to the Philippines agreeing to
undertake the things set forth in the Agreement. Surely, one State can agree to waive jurisdiction to the
extent agreed upon to subjects of another State due to the recognition of the principle of extraterritorial
immunity. To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the
postulate that some of its provisions constitute a virtual abdication of its sovereignty. Almost every time
a state enters into an international agreement, it voluntarily sheds off part of its sovereignty. The
Constitution, as drafted, did not envision a reclusive Philippines isolated from the rest of the world. It
even adheres, as earlier stated, to the policy of cooperation and amity with all nations. The usual
underlying consideration in this partial surrender may be the greater benefits derived from a pact or a
reciprocal undertaking of one contracting party to grant the same privileges or immunities to the other.
On the rationale that the Philippines has adopted the generally accepted principles of international law
as part of the law of the land, a portion of sovereignty may be waived without violating the Constitution.
Such waiver does not amount to an unconstitutional diminution or deprivation of jurisdiction of
Philippine courts.


Bayan Muna, the Court believes, labors under the erroneous impression that the Agreement would
allow Filipinos and Americans committing high crimes of international concern to escape criminal trial
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
24
and punishment. This is manifestly incorrect. Persons who may have committed acts penalized under
the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent
of the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind
both countries to the Rome Statute have been met. For perspective, what the Agreement contextually
prohibits is the surrender by either party of individuals to international tribunals, like the ICC, without
the consent of the other party, which may desire to prosecute the crime under its existing laws. In
addition, Bayan Muna’s view (that while the Philippines has criminalized under RA 9851 the acts
defined in the Rome Statute as war crimes, genocide and other crimes against humanity, there is no
similar legislation in the US) must fail. On the contrary, the US has already enacted legislation punishing
the high crimes mentioned earlier. In fact, as early as October 2006, the US enacted a law criminalizing
war crimes. Section 2441, Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA)
provides for the criminal offense of war crimes which is similar to the war crimes found in both the Rome
Statute and RA 9851. The US doubtless recognizes international law as part of the law of the land,
necessarily including international crimes, even without any local statute. In fact, years later, US courts
would apply international law as a source of criminal liability despite the lack of a local statute
criminalizing it as such. This rule finds an even stronger hold in the case of crimes against humanity. It
has been held that genocide, war crimes and crimes against humanity have attained the status of
customary international law. Some even go so far as to state that these crimes have attained the status
of jus cogens. Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice,
among the different countries in the world that the prosecution of internationally recognized crimes of
genocide, etc. should be handled by a particular international criminal court.

In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria Macapagal-
Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the authority and
discretion vested in her by the Constitution. At the end of the day, the Presidentby ratifying, thru her
deputies, the non-surrender agreement did nothing more than discharge a constitutional duty and
exercise a prerogative that pertains to her office. More importantly, an act of the executive branch with
a foreign government must be afforded great respect. The power to enter into executive agreements
has long been recognized to be lodged with the President. This authority of the President to enter into
executive agreements without the concurrence of the Legislature has traditionally been recognized in
Philippine jurisprudence. The rationale behind this principle is the inviolable doctrine of separation of
powers among the legislative, executive and judicial branches of the government. Thus, absent any
clear contravention of the law, courts should exercise utmost caution in declaring any executive
agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non- Surrender
Agreement ought to be in the form of a treaty, to be effective, has to be rejected. WHEREFORE, the
petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of merit. No costs.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
25
Saguisag v. Executive Secretary, GR No. 212426, January 12,2016
Facts:
Petioners question the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA)
between the Republic of the Philippines and the United States of America. Petitioners allege that
respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction when they
entered into EDCA with the U.S. claiming that the instrument violated multiple constitutional provisions.
In reply, respondents argue that petitioners lack standing to bring the suit. To support the legality of
their actions, respondents invoke the 1987 Constitution, treaties, and judicial precedents.
EDCA authorizes the U.S. military forces to have access to and conduct activities within certain “Agreed
Locations” in the country. It was not transmitted to the Senate on the executive’s understanding that to
do so was no longer necessary. Accordingly, in June 2014, the Department of Foreign Affairs and the
U.S. Embassy exchanged diplomatic notes confirming the completion of all necessary internal
requirements for the agreement to enter into force in the two countries.
According to the Philippine government, the conclusion of EDCA was the result of intensive and
comprehensive negotiations in the course of almost two years. After eight rounds of negotiations, the
Secretary of National Defense and the U.S. Ambassador to the Philippines signed the agreement on
28 April 2014. President Benigno S. Aquino III ratified EDCA on 6 June 2014. The OSG clarified during
the oral arguments that the Philippine and the U.S. governments had yet to agree formally on the
specific sites of the Agreed Locations mentioned in the agreement.
Two petitions for certiorari were thereafter filed before us assailing the constitutionality of EDCA. They
primarily argue that it should have been in the form of a treaty concurred in by the Senate, not an
executive agreement.
On 10 November 2015, months after the oral arguments were concluded and the parties ordered to file
their respective memoranda, the Senators adopted Senate Resolution No. (SR) 105.91, the resolution
expresses the “strong sense” of the Senators that for EDCA to become valid and effective, it must first
be transmitted to the Senate for deliberation and concurrence as according to Sec. 25, Article XVIII of
the 1987 Philippine Constitution.

Issues:
Whether or not EDCA is a valid agreement entered into by the President
Held:
Yes. This Court, a plain textual reading of Article XIII, Section 25, inevitably leads to the conclusion that
it applies only to a proposed agreement between our government and a foreign government, whereby
military bases, troops, or facilities of such foreign government would be “allowed” or would “gain entry”
Philippine territory.
In Ang Bagong Bayani-OFW v. Commission on Elections, we reiterated this guiding principle:

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
26
“It is safer to construe the Constitution from what appears upon its face. The proper interpretation
therefore depends more on how it was understood by the people adopting it than in the framers’
understanding thereof”.
Thus, it is evident that the constitutional restriction refers solely to the initial entry of the foreign
military bases, troops, or facilities. Once entry is authorized, the subsequent acts are thereafter
subject only to the limitations provided by the rest of the Constitution and Philippine law, and not to the
Section 25 requirement of validity through a treaty.

Therefore, EDCA need not be submitted to the Senate for concurrence because it is in the form
of a mere executive agreement, not a treaty. Under the Constitution, the President is empowered
to enter into executive agreements on foreign military bases, troops or facilities if (1) such agreement
is not the instrument that allows the entry of such and (2) if it merely aims to implement an existing law
or treaty.
EDCA is in the form of an executive agreement since it merely involves “adjustments in detail” in the
implementation of the Mutual Treaty Defense and the Visiting Forces Agreement. These are existing
treaties between the Philippines and the U.S. that have already been concurred in by the Philippine
Senate and have thereby met the requirements of the Constitution under Art XVIII, Sec 25. Because
of the status of these prior agreements, EDCA need not be transmitted to the Senate.
“Executive agreement” is so well-entrenched in this Court’s pronouncements on the powers of the
President. When the Court validated the concept of “executive agreement,” it did so with full knowledge
of the Senate’s role in concurring in treaties. It was aware of the problematique of distinguishing when
an international agreement needed Senate concurrence for validity, and when it did not; and the Court
continued to validate the existence of “executive agreements” even after the 1987 Constitution.

Dissenting Opinion of Brion, J.


Executive Agreement is not the proper medium for the matters covered by the EDCA. It should be in
the form of a treaty as it brings back to the Philippines the modern equivalent of the foreign
military bases whose term expired in 1991 and which Art XVIII, Sec 25 of the Constitution directly
addresses and that the foreign troops under arrangements are outside of the contemplation of the
visiting forces that the 1998 VFA allows and the military facilities that, under modern military strategy,
likewise can be brought in only through a treaty.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
27
Vinuya v. Executive Secretary, GR No. 162230, April 28,2010
Facts: This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application
for the issuance of a writ of preliminary mandatory injunction against the Office of the Executive
Secretary, the Secretary of the DFA, the Secretary of the DOJ, and the OSG.
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered
with the SEC, established for the purpose of providing aid to the victims of rape by Japanese military
forces in the Philippines during the Second World War.
Petitioners claim that since 1998, they have approached the Executive Department through the DOJ,
DFA, and OSG, requesting assistance in filing a claim against the Japanese officials and military
officers who ordered the establishment of the “comfort women” stations in the Philippines. But officials
of the Executive Department declined to assist the petitioners, and took the position that the individual
claims of the comfort women for compensation had already been fully satisfied by Japan’s compliance
with the Peace Treaty between the Philippines and Japan.
Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave
abuse of discretion amounting to lack or excess of discretion in refusing to espouse their claims for the
crimes against humanity and war crimes committed against them; and (b) compel the respondents to
espouse their claims for official apology and other forms of reparations against Japan before the
International Court of Justice (ICJ) and other international tribunals.
Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt
with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.
On January 15, 1997, the Asian Women’s Fund and the Philippine government signed a Memorandum
of Understanding for medical and welfare support programs for former comfort women. Over the next
five years, these were implemented by the Department of Social Welfare and Development.
Issue: WON the Executive Department committed grave abuse of discretion in not espousing
petitioners’ claims for official apology and other forms of reparations against Japan.
Held: Petition lacks merit. From a Domestic Law Perspective, the Executive Department has the
exclusive prerogative to determine whether to espouse petitioners’ claims against Japan.
Political questions refer “to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been delegated
to the legislative or executive branch of the government. It is concerned with issues dependent upon
the wisdom, not legality of a particular measure.”
One type of case of political questions involves questions of foreign relations. It is well-established that
“the conduct of the foreign relations of our government is committed by the Constitution to the executive
and legislative–‘the political’–departments of the government, and the propriety of what may be done
in the exercise of this political power is not subject to judicial inquiry or decision.” are delicate, complex,
and involve large elements of prophecy. They are and should be undertaken only by those directly
responsible to the people whose welfare they advance or imperil.
But not all cases implicating foreign relations present political questions, and courts certainly possess
the authority to construe or invalidate treaties and executive agreements. However, the question

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
28
whether the Philippine government should espouse claims of its nationals against a foreign government
is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not
to the courts but to the political branches. In this case, the Executive Department has already decided
that it is to the best interest of the country to waive all claims of its nationals for reparations against
Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question.
The President, not Congress, has the better opportunity of knowing the conditions which prevail in
foreign countries, and especially is this true in time of war. He has his confidential sources of
information. He has his agents in the form of diplomatic, consular and other officials.
The Executive Department has determined that taking up petitioners’ cause would be inimical to our
country’s foreign policy interests, and could disrupt our relations with Japan, thereby creating serious
implications for stability in this region. For the to overturn the Executive Department’s determination
would mean an assessment of the foreign policy judgments by a coordinate political branch to which
authority to make that judgment has been constitutionally committed.
From a municipal law perspective, certiorari will not lie. As a general principle, where such an
extraordinary length of time has lapsed between the treaty’s conclusion and our consideration – the
Executive must be given ample discretion to assess the foreign policy considerations of espousing a
claim against Japan, from the standpoint of both the interests of the petitioners and those of the
Republic, and decide on that basis if apologies are sufficient, and whether further steps are appropriate
or necessary.
In the international sphere, traditionally, the only means available for individuals to bring a claim within
the international legal system has been when the individual is able to persuade a government to bring
a claim on the individual’s behalf. By taking up the case of one of its subjects and by resorting to
diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its
own right to ensure, in the person of its subjects, respect for the rules of international law.
Within the limits prescribed by international law, a State may exercise diplomatic protection by whatever
means and to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the
natural or legal person on whose behalf it is acting consider that their rights are not adequately
protected, they have no remedy in international law. All they can do is resort to national law, if means
are available, with a view to furthering their cause or obtaining redress. All these questions remain
within the province of municipal law and do not affect the position internationally.
Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis.
Petitioners have not shown that the crimes committed by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute perpetrators of
international crimes is an erga omnes obligation or has attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term
describing obligations owed by States towards the community of states as a whole. Essential distinction
should be drawn between the obligations of a State towards the international community as a whole,
and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the
former are the concern of all States. In view of the importance of the rights involved, all States can be
held to have a legal interest in their protection; they are obligations erga omnes.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
29
The term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority,
superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense
that they are mandatory, do not admit derogation, and can be modified only by general international
norms of equivalent authority
WHEREFORE, the Petition is hereby DISMISSED.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
30
Pharmaceutical and Health Care Association v. Duque, GR No. 173034, October 9,2007
DOCTRINE: Under the 1987 Constitution, international law can become part of the sphere of domestic
law either by transformation or incorporation; Treaties become part of the law of the land through
transformation pursuant to Article VII, Section 21 of the Constitution. Under the 1987 Constitution,
international law can become part of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as local legislation. The incorporation method
applies when, by mere constitutional declaration, international law is deemed to have the force of
domestic law. Treaties become part of the law of the land through transformation pursuant to Article
VII, Section 21 of the Constitution which provides that “*n+o treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds of all the members of the Senate.” Thus,
treaties or conventional international law must go through a process prescribed by the Constitution for
it to be transformed into municipal law that can be applied to domestic conflicts.

FACTS: On October 28, 1986, Executive Order No. 51 (Milk Code) was issued by President Corazon
Aquino by virtue of the legislative powers granted to the president under the Freedom Constitution. The
Milk Code states that the law seeks to give effect to Article 112 of the International Code of Marketing
of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981.
From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be
supported, promoted and protected, hence, it should be ensured that nutrition and health claims are
not permitted for breastmilk substitutes. the Philippines ratified the International Convention on the
Rights of the Child. Article 24 of said instrument provides that State Parties should take appropriate
measures to diminish infant and child mortality, and ensure that all segments of society, specially
parents and children, are informed of the advantages of breastfeeding. the DOH issued RIRR which
was to take effect on July 7, 2006. a petition for certiorari under Rule 65 of the Rules of Court, seeking
to nullify Revised Implementing Rules and Regulations of The “Milk Code,” assailing that the RIRR was
going beyond the provisions of the Milk Code, thereby amending and expanding the coverage of said
law.

ISSUE: W/n the RIRR is unconstitutional?


Sub-issue(s): W/n the RIRR is in accord with TMC? W/n pertinent international agreements entered
into by the Philippines are part of the law of the land and may thus be implemented through an RIRR,
if so, is the RIRR in accord with such international agreements?

Held: No. However what may be implemented is the RIRR based on the Milk Code which in turn is
based on the ICMBS as this is deemed part of the law of the land. The other WHA Resolutions however
cannot be imposed as they are not deemed part of the law of the land.

Ratio:
1. Are the international instruments referred to by the respondents part of the law of the land?
- The various international instruments invoked by respondents are:
(1) The UN Conventions on the Rights of the Child
(2) The International Convenant on Economic, Social, and Cultural Rights
(3) Convention on the Elimination of All Forms of Discrimination Against Women
- These instruments only provide general terms of the steps that States must take to prevent child
mortality. Hence, they do not have anything about the use and marketing of breastmilk substitutes

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
31
- The ICMBS and other WHA Resolutions however, are the international instruments which have
specific provisions on breastmilk substitutes
- Under the 1987 Constitution, international law can become part of domestic law in 2 ways:
(1) Transformation – an international law is transformed into a domestic law through a constitutional
mechanism such as local legislation
 Treaties become part of law of the land through this method, pursuant to Art 7, Sec 21 –
wherein “no treaty or international agreement shall be valid.. unless concurred by at least
2/3 of Senate”
 The ICMBS and WHA Resolutions are NOT treaties as they haven’t been concurred in by
the required 2/3 vote.
 HOWEVER, the ICMBS has been transformed into domestic law through local legislation
that is TMC.
 Therefore, it is not the ICMBS per se that has the force of law but it’s TMC.
o While TMC is almost a verbatim reproduction of the ICMBS, it did not adopt the
latter’s provision on the absolute prohibition on advertising of products within the
scope of the ICMBS. Instead the MC provides that advertising promotion or other
marketing materials may be allowed if such materials are approved by a committee.
(2) Incorporation – by mere constitutional declaration, international law is deemed to have the force
of domestic law
 This is found under Art 2, Sec 2 – The Philippines… adopts generally accepted principles
of international law as part of the law of the land
 In Mihares v. Ranada: International law becomes customary rules accepted as binding as a
result of two elements:
1.) Established, widespread, and consistent practice on part of the state
2.) Opinion juris sive necessitates (opinion as to law or necessity.
 Generally accepted principles of international law refer to norms of general or customary
international law which are binding on all states, valid through all kinds of human societies,
and basic to legal systems generally
 Fr. Bernas has a definition similar to the one above. Customary international law has two
factors:
1.) Material factor – how states behave
 The consistency and the generality of the practice
2.) Psychological or subjective factor – why they behave the way they do
 Once state practice has been established, now determine why they behave they do.
Is it ouor of courtesy or opinio juris (the belief that a certain type of behavior is
obligatory)
 When a law satisfies the two factors it becomes part of customary international law which is
then incorporated into our domestic system

2. Since the WHA Resolutions have not been embodied in any local legislation, have they attained the
status of customary law and hence part of our law of the land?
- The World Health Organization (WHO) is one of the international specialized agencies of the UN.
- According to the WHO Constitution, it’s the WHA which determines the policies of the WHO, the
former also has the power to “adopt regulations concerning advertising and labeling of
pharmaceutical and similar products” and “to make recommendations to members on any matter
within the Organization’s competence”
- Note that the legal effect of a regulation as opposed to recommendation is quite different
(1) Regulations which are duly adopted by the WHA are binding on member states
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
32
(2) On the other hand, recommendations of the WHA do not come into force for its members unlike
regulations. Rather, they carry moral and political weight as they constitute the judgment on a
health issue of the collective membership of the highest body in the field of health.
- The WHA resolution adopting the ICMBS and the subsequent WHA resolutions urging states to
implement the ICMBS are merely recommendatory and legally non-binding.
- Hence, unlike the ICMBS which has become TMC through legislative enactment, the subsequent
WHA Resolutions, which provide for exclusive breastfeeding and prohibition on advertisements
and promotions of breastmilk have not been adopted as domestic law.
- WHA Resolutions have been viewed to constitute “soft law” or non-binding norms, which influence
state behavior. Soft law has been noted to be a rapid means of norm creation, in order to reflect
and respond to the changing needs and demands of constituents (of the UN.)
- As previously discussed, for an international rule to be considered customary law, it must be
established that such rule is followed by states because it is considered obligatory (opinio juris).
- In the case at bar, respondents have not presented any evidence to prove that the WHA
Resolutions are in fact enforced or practice by member states. Further, they failed to establish that
provisions of pertinent WHA Resolutions are customary international law that may be deemed part
of law of the land.
- Hence, legislation is necessary to transform the WHA resolutions into domestic law. They cannot
thus be implemented by executive agencies without the need of a law to be enacted by legislature.

On other issues:
W/n the petitioner is the real party in interest? Yes.
- An association has standing to file suit for its workers despite its lack of direct interest of its
members are affected by the action. An organization has standing to assert the concerns of its
constituents. (Exec Sec vs CA)
- The Court has rules that an association has the legal personality to represent its members because
the results of the case will affect their vital interests. (Purok Bagong Silang Association Inc. vs.
Yuipco)
- In the petitioner’s Amended Articles of Incorporation, it states that the association is formed “to
represent directly or through approved representatives the pharmaceutical and health care industry
before the Philippine Government and any of its agencies, the medical professions and the general
public.”
- Therefore, the petitioner, as an organization, has an interest in fulfilling its avowed purpose of
representing members who are part of the pharmaceutical and health care industry. Petitioner is
duly authorized to bring to the attention of the government agencies and courts any grievance
suffered by its members which are directly affected by the assailed RIRR.
- The petitioner, whose legal identity is deemed fused with its members, should be considered as a
legal party-in-interest which stands to be benefited or injured by any judgment in the case.

W/n the DOH has the power to implement the WHA Resolutions under the Revised Administrative Code
even in the absence of a domestic law? Only the provisions of the Milk Code. (as per the discussion
above)
- Section 3, Chapter 1, Title IX of the RAC of 1987 provides that the DOH shall define the national
health policy and can issue orders and regulations concerning the implementation of established
health policies.
- A.O. No 2005 -0014 which provides the national policy on infant and young child feeding, does not
declare that as part of its policy, the advertisement or promotion of breastmilk substitutes should
be absolutely prohibited.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
33
- Only the provisions of the Milk Code, but not those of the subsequent WHA Resolutions, can be
validly implemented by the DOH through the subject RIRR.

W/n the provisions of the RIRR being in accordance with the Milk Code? Not all of them
- Assailed provisions: [1] extending the coverage to young children; [2] imposing exclusive
breastfeeding for infants from 0-6 months; [3] imposes an absolute ban on advertising and
promotion for breastmilk substitutes; [4] requiring additional labeling requirements; [5] prohibits the
dissemination of information on infant formula; [6] forbids milk manufacturers and distributors to
extend assistance in research and continuing education Although the DOH has the power under
the Milk Code to control information regarding breastmilk vis-à-vis breastmilk substitutes, this
power is not absolute because it has no power to impose an absolute prohibition in the marketing,
promotion and advertising of breastmilk substitutes. Several provisions of the Milk Code attest to
the fact that such power to control information is not absolute.
- Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code because such provisions
impose an absolute prohibition on advertising, promotion and marketing of breastmilk substitutes,
which is not provided for in the Milk Code. Section 46 is violative of the Milk Code because the
DOH has exceeded its authority in imposing such fines or sanctions when the Milk Code does not
do so. Other assailed provisions are in accordance with the Milk Code.

W/n Section 13 of the RIRR providing a sufficient standard? Yes.


- Questioned provision, in addition to Section 26 of Rule VII provide labeling requirements for
breastmilk substitutes  found to be in consonance with the Milk Code
- The provisions in question provide reasonable means of enforcing related provisions in the Milk
Code.

W/n Section 57 of the RIRR repeals existing laws?


- Section in question only repeals orders, issuances and rules and regulations, not laws. The
provision is valid as it is within the DOH’s rule-making power.
- An administrative agency has quasi-legislative or rule-making power. However, such power is
limited to making rules and regulation subjected to the boundaries set by the granting statute and
the Constitution. The power is also subject to the doctrine of non-delegability and separability of
powers. The power, which includes amending, revising, altering or repealing, is granted to allow
for flexibility in the implementation of the laws.

W/n On Section 4, 5(w), 11, 22, 32, 47 and 52 violates the due process clause of the Constitution
(Article III Section 1)?
- Despite the fact that the present Constitution enshrines free enterprise as a policy, it nonetheless
reserves to the government the power to intervene whenever necessary to promote the general
welfare… free enterprise does not call for the removal of protective regulations. It must be clearly
explained and proven by competent evidence just exactly how such protective regulation would
result in the restraint of trade.
- Section 4 – proscription of milk manufacturers’ participation in any policymaking body; Section 22
– classes and seminars for women and children; Section 32 – giving of assistance, support and
logistics or training; Section 52 – giving of donations
- In the instant case, petitioner failed to show how the aforementioned sections hamper the trade of
breastmilk substitutes. They also failed to establish that these activities are essential and
indispensable to their trade.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
34
Disposition: The Petition is Partially Granted. Only sections 4(f), 11 and 46 of A.O. 2006-0014
are declared null and void for being ultra vires. The TRO is lifted insofar as the rest of the
provisions of A.O. 2006-0012 is concerned.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
35
Province of North Cotabato v. GRP Peace Panel, GR No. 183591, October 14,2008
FACTS:
On August 5, 2008, the Government of the Republic of the Philippines and the Moro Islamic Liberation
Front (MILF) were scheduled to sign a Memorandum of Agreement of the Ancestral Domain Aspect of
the GRP - MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
Invoking the right to information on matters of public concern, the petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of the MA-AD and to prohibit
the slated signing of the MOA-AD and the holding of public consultation thereon. They also pray that
the MOA-AD be declared unconstitutional. The Court issued a TRO enjoining the GRP from signing the
same.
ISSUES:
1. Whether or not the constitutionality and the legality of the MOA is ripe for adjudication;
2. Whether or not there is a violation of the people's right to information on matters of public concern
(Art 3 Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (Art 2,
Sec 28) including public consultation under RA 7160 (Local Government Code of 1991)
3. Whether or not the signing of the MOA, the Government of the Republic of the Philippines would be
binding itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical,
territorial or political subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in
violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)
RULINGS:
1. Yes, the petitions are ripe for adjudication. The failure of the respondents to consult the local
government units or communities affected constitutes a departure by respondents from their mandate
under EO No. 3. Moreover, the respondents exceeded their authority by the mere act of guaranteeing
amendments to the Constitution. Any alleged violation of the Constitution by any branch of government
is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of transcendental
importance, the Court grants the petitioners, petitioners-in-intervention and intervening respondents the
requisite locus standi in keeping with the liberal stance adopted in David v. Macapagal- Arroyo.
In Pimentel, Jr. v. Aguirre, this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the dispute
is said to have ripened into a judicial controversy even without any other overt act . Indeed, even a
singular violation of the Constitution and/or the law is enough to awaken judicial duty.x x x x
By the same token, when an act of the President, who in our constitutional scheme is a coequal of
Congress, is seriously alleged to have infringed the Constitution and the laws x x x settling the dispute
becomes the duty and the responsibility of the courts.
That the law or act in question is not yet effective does not negate ripeness.
2. Yes. The Court finds that there is a grave violation of the Constitution involved in the matters of public
concern (Sec 7 Art III) under a state policy of full disclosure of all its transactions involving public interest
(Art 2, Sec 28) including public consultation under RA 7160 (Local Government Code of 1991).
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
36
(Sec 7 ArtIII) The right to information guarantees the right of the people to demand information, while
Sec 28 recognizes the duty of officialdom to give information even if nobody demands. The complete
and effective exercise of the right to information necessitates that its complementary provision on public
disclosure derive the same self-executory nature, subject only to reasonable safeguards or limitations
as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public interest in the
highest order. In declaring that the right to information contemplates steps and negotiations leading to
the consummation of the contract, jurisprudence finds no distinction as to the executory nature or
commercial character of the agreement.
E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels
and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the
Peace Process to conduct regular dialogues to seek relevant information, comments, advice, and
recommendations from peace partners and concerned sectors of society.
3.
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical,
territorial or political subdivision not recognized by law;
Yes. The provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE
the status of an associated state or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution.
No province, city, or municipality, not even the ARMM, is recognized under our laws as having an
“associative” relationship with the national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or regional government. It also implies
the recognition of the associated entity as a state. The Constitution, however, does not contemplate
any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for independence.
The BJE is a far more powerful entity than the autonomous region recognized in the Constitution. It is
not merely an expanded version of the ARMM, the status of its relationship with the national government
being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets
the criteria of a state laid down in the Montevideo Convention, namely, a permanent population, a
defined territory, a government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine
territory, the spirit animating it – which has betrayed itself by its use of the concept of association – runs
counter to the national sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the national government and the BJE being
itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the
MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws. The
BJE is more of a state than an autonomous region. But even assuming that it is covered by the term
“autonomous region” in the constitutional provision just quoted, the MOA-AD would still be in conflict
with it.
b) to revise or amend the Constitution and existing laws to conform to the MOA:
The MOA-AD provides that “any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework,” implying an amendment of the Constitution to
accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of the
Constitution .

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
37
It will be observed that the President has authority, as stated in her oath of office, only to preserve and
defend the Constitution. Such presidential power does not, however, extend to allowing her to change
the Constitution, but simply to recommend proposed amendments or revision. As long as she limits
herself to recommending these changes and submits to the proper procedure for constitutional
amendments and revision, her mere recommendation need not be construed as an unconstitutional
act.
The “suspensive clause” in the MOA-AD viewed in light of the above-discussed standards.
Given the limited nature of the President’s authority to propose constitutional amendments, she cannot
guarantee to any third party that the required amendments will eventually be put in place, nor even be
submitted to a plebiscite. The most she could do is submit these proposals as recommendations either
to Congress or the people, in whom constituent powers are vested.
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in
violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)
This strand begins with the statement that it is “the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as ‘Bangsamoros.’” It defines “Bangsamoro people”
as the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the
Sulu archipelago at the time of conquest or colonization, and their descendants whether mixed or of
full blood, including their spouses.
Thus, the concept of “Bangsamoro,” as defined in this strand of the MOA-AD, includes not only “Moros”
as traditionally understood even by Muslims, but all indigenous peoples of Mindanao and its adjacent
islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be respected. What
this freedom of choice consists in has not been specifically defined. The MOA-AD proceeds to refer to
the “Bangsamoro homeland,” the ownership of which is vested exclusively in the Bangsamoro people
by virtue of their prior rights of occupation. Both parties to the MOA-AD acknowledge that ancestral
domain does not form part of the public domain.
Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure
for the recognition and delineation of ancestral domain, which entails, among other things, the
observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous
Peoples. Notably, the statute does not grant the Executive Department or any government agency the
power to delineate and recognize an ancestral domain claim by mere agreement or compromise.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to
conduct consultations beforeany project or program critical to the environment and human ecology
including those that may call for the eviction of a particular group of people residing in such locality, is
implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests
ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result
to the diaspora or displacement of a great number of inhabitants from their total environment.
RATIO:
In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he
failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No.
7160, and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and crafted
runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a
virtual refusal to perform the duty enjoined.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
38
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship envisioned
between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated
entity is a state and implies that the same is on its way to independence.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
39
Reservations to the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide (Advisory Opinion, ICJ Reports 1951)
Advisory Opinion of 28 May 1951
The question concerning reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide had been referred for an advisory opinion to the Court by the General Assembly of
the United Nations (G.A. resolution of November 16, 1950) in the following terms:
"In so far as concerns the Convention on the Prevention and Punishment of the Crime of Genocide in
the event of a State ratifying or acceding to the Convention subject to a reservation made either on
ratification or on accession, or on signature followed by ratification:
"I. Can the reserving State be regarded as being a party to the Convention while still maintaining its
reservation if the reservation is objected to by one or more of the parties to the Convention but not by
others?
"II. If the answer to question I is in the affirmative, what is the effect of the reservation as between the
reserving State and:
(a) The parties which object to the reservation?
(b) Those which accept it?
"III. What would be the legal effect as regards the answer to question I if an objection to a reservation
is made:
(a) By a signatory which has not yet ratified?
(b) By a State entitled to sign or accede but which has not yet done so?"

By 7 votes to 5 the Court gave the following answers to the questions referred to:
On Question I:
a State which has made and maintained a reservation which has been objected to by one or more of
the parties to the Convention but not by others, can be regarded as being a party to the Convention if
the reservation is compatible with the object and purpose of the Convention; otherwise, that State
cannot be regarded as being a party to the Convention.
On Question II:
(a) if a party to the Convention objects to a reservation which it considers to be incompatible with the
object and purpose of the Convention, it can in fact consider that the reserving State is not a party to
the Convention;
(b) if, on the other hand, a party accept the reservation as being compatible with the object and purpose
of the Convention, it can in fact consider that the reserving State is a party to the Convention;
On Question III:

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
40
(a) an objection to a reservation made by a signatory State which has not yet ratified the Convention
can have the legal effect indicated in the reply to Question I only upon ratification. Until that moment it
merely serves as a notice to the other State of the eventual attitude of the signatory State;
(b) an objection to a reservation made by a State which is entitled to sign or accede but which has not
yet done so is without legal effect.
*Notes
*The first question refers to whether a State which has made a reservation can, while maintaining it, be
regarded as a party to the Convention on Genocide, when some of the parties object to the reservation.
In its treaty relations, a State cannot be bound without its consent. A reservation can be effected only
with its agreement. On the other hand, it is a recognised principle that a multilateral Convention is the
result of an agreement freely concluded. To this principle was linked the notion of integrity of the
Convention as adopted, a notion which, in its traditional concept, involved the proposition that no
reservation was valid unless it was accepted by all contracting parties. This concept retains undisputed
value as a principle, but as regards the Genocide Convention, its application is made more flexible by
a variety of circumstances among which may be noted the universal character of the United Nations
under whose auspices the Convention was concluded and the very wide degree of participation which
the Convention itself has envisaged. This participation in conventions of this type has already given
rise to greater flexibility in practice. More general resorts to reservations, very great allowance made to
tacit assent to reservations, the admission of the State which has made the reservation as a party to
the Convention in relation to the States which have accepted it, all these factors are manifestations of
a new need for flexibility in the operation of multilateral conventions. Moreover, the Convention on
Genocide, although adopted unanimously, is nevertheless the result of a series of majority votes - which
may make it necessary for certain States to make reservations.
*The Court then examined question II by which it was requested to say what was the effect of a
reservation as between the reserving State and the parties which object to it and those which accept it.
The same considerations apply. No State can be bound by a reservation to which it has not consented,
and therefore each State, on the basis of its individual appraisals of the reservations, within the limits
of the criterion of the object and purpose stated above, will or will not consider the reserving State to
be a party to the Convention. In the ordinary course of events, assent will only affect the relationship
between the two States. It might aim, however, at the complete exclusion from the Convention in a
case where it was expressed by the adoption of a position on the jurisdictional plane: certain parties
might consider the assent as incompatible with the purpose of the Convention, and might wish to settle
the dispute either by special agreement or by the procedure laid down in the Convention itself.
*question III concerning the effect of an objection made by a State entitled to sign and ratify but which
had not yet done so, or by a State which has signed but has not yet ratified. In the former case, it would
be inconceivable that a State possessing no rights under the Convention could exclude another State.
The case of the signatory States is more favourable. They have taken certain steps necessary for the
exercise of the right of being a party. This provisional status confers upon them a right to formulate as
a precautionary measure objections which have themselves a provisional character. If signature is
followed by ratification, the objection becomes final. Otherwise, it disappears. Therefore, the objection
does not have an immediate legal effect but expresses and proclaims the attitude of each signatory
State on becoming a party.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
41
Interpretation of Peace Treaties Case (Second Phase, Advisory Opinion, ICJ Reports 221,
1950) *

The question concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania had
been referred to the Court for an advisory opinion by the General Assembly of the United Nations (G.A.
resolution of 19 October 1949).
By eleven votes to three the Court stated that disputes existed with those countries subject to the
provisions for the settlement of disputes contained in the Treaties themselves and that the
Governments of the three countries were obligated to carry out the provisions of the Articles of those
Treaties which relate to the settlement of disputes, including the provisions for the appointment of their
representatives to the Treaty Commissions.

Facts:
In April, 1949 the question of the observance of human rights in Bulgaria and Hungary having been
referred to the General Assembly, the latter adopted a resolution in which it expressed its deep concern
at the grave accusations made against the Governments of Bulgaria and Hungary in this connection,
and drew their attention to their obligations under the Peace Treaties which they had signed with the
Allied and Associated Powers, including the obligation to co-operate in the settlement of all these
questions.
On 22nd October, 1949 the Assembly, confronted by the charges made in this connection by certain
Powers against Bulgaria, Hungary and Romania, which charges were rejected by the latter, and noting
that the Governments of these three countries had refused to designate their representatives to the
Treaty Commissions for the settlement of disputes on the grounds that they were not legally obligated
to do so, and deeply concerned with this situation, decided to refer the following question to the
International Court of Justice for an Advisory Opinion

Issues/Questions:
I. Do the diplomatic exchanges between the three States and certain Allied and Associated Powers
disclose disputes subject to the provisions for the settlement of disputes contained in the Treaties?
II. In the event of an affirmative reply, are the three States obligated to carry out the provisions of the
Articles in the Peace Treaties for the settlement of disputes, including the provisions for the appointment
of their representatives to the Commissions?
III. In the event of an affirmative reply to question II and if within thirty days from the date when the
Court delivered its opinion the designation has not been made, is the Secretary-General of the United
Nations authorized to appoint the third Member of the Commissions?
IV. In the event of an affirmative reply to Question III would a Commission so composed be competent
to make a definitive and binding decision in settlement of a dispute?
(However, Questions III and IV which refer to a clause in the Peace Treaties under which the Secretary-
General of the United Nations is charged to appoint, failing agreement between the parties, the third
member of the Treaty Commissions, were not submitted to the Court for an immediate answer. The
Court would have to consider them only if the appointment of national members to the Commission had
not been effected within one month after the delivery of the opinion on Questions I and II)

Opinion of the Court for Questions I and II: (First Phase)

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
42
The Court first considered whether Article 2, paragraph 7 of the Charter, which prevents the United
Nations from intervening in matters which are essentially within the domestic jurisdiction of a State,
barred it from delivering an Opinion in the present case. It noted on the one hand that the General
Assembly justified the examination which it had undertaken by relying upon Article 55 of the Charter,
which states that the United Nations shall promote universal respect for and observance of human
rights and on the other that the request for an Opinion did not call upon the Court to deal with the
alleged violations of the provisions of the Treaties concerning human rights: the object of the Request
is directed solely to obtaining certain clarifications of a legal nature regarding the applicability of the
procedure for the settlement of disputes as provided for in the Treaties. The interpretation of the terms
of a Treaty for this purpose could not be considered as a question essentially within the domestic
jurisdiction of a State, it is a question of international law which, by its very nature, lies within the
competence of the Court.
The Court considered, on the other hand, whether the fact that Bulgaria, Hungary and Romania had
expressed their opposition to the advisory proceedings should not determine it, by the application of
the principles which govern the functioning of a judicial organ, to decline to give an answer. It pointed
out that contentious procedure resulting in a judgment and advisory procedure were different. It
considered that it had the power to examine whether the circumstances of each case were of such a
character as should lead it to decline to answer the Request. In the present case, which was clearly
different from the Eastern Carelian case (1923) the Court held that it should not decline because the
request was made with a view to enlightening the General Assembly on the applicability of the
procedure for the settlement of disputes, and the Court was not asked to pronounce on the merits of
these disputes. The Court gave an affirmative answer to Question I, pointing out on the one hand that
disputes existed because certain charges had been brought against certain States, which the latter
rejected, and on the other hand that these disputes were subject to the provisions of the Articles for the
settlement of disputes contained in the Peace Treaties.
Taking up Question II, the Court determined its meaning and pointed out that it referred solely to the
obligation upon Bulgaria, Hungary and Romania to carry out the Articles of the Peace Treaties
concerning the settlement of disputes, including the obligation to appoint their representatives to the
Treaty Commissions. The Court found that all the conditions required for the commencement of the
stage of the settlement of disputes by the Commissions, had been fulfilled. Consequently, it gave an
affirmative answer to Question II.
The Opinion of the Court was delivered in public, the Secretary-General of the United Nations and the
States signatories to the Treaties having been duly notified. The text of the conclusions of the Opinion
was cabled to those signatory States which were not represented at the Hearing.

(Second Phase)

Having stated, in its Opinion of March 30th, 1950, that the Governments of Bulgaria, Hungary and
Romania are obligated to carry out the provisions of those articles of the Peace Treaties which relate
to the settlement of disputes, including the provisions for the appointment of their representatives to the
Treaty Commissions, and having received Information from the Secretary-General of the United
Nations that none of those Governments had notified him, within thirty days from the date of the delivery
of the Courts' Advisory Opinion, of the appointment of its representative to the Treaty Commissions,
the Court is now called upon to answer Question III in the Resolution of the General Assembly of
October 22nd, 1949, which reads as follows :
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
43
"III. If one party fails to appoint a representative to a Treaty Commission under the Treaties of Peace
with Bulgaria, Hungary and Romania where that party is obligated to appoint a representative to the
Treaty Commission, is the Secretary-General of the United Nations authorized to appoint the third
member of the Commission upon the request of the other party to a dispute according to the provisions
of the respective Treaties?"
Articles 36, 40 and 38, respectively, of the Peace Treaties with Bulgaria, Hungary and Romania, after
providing that disputes concerning the Interpretation or execution of the Treaties which had not been
settled by direct negotiation should be referred to the Three Heads of Mission, continue:
"Any such dispute not resolved by them within a period of two months shall, unless the parties to the
dispute mutually agree upon another means of settlement, be referred at the request of either party to
the dispute to a Commission composed of one representative of each party and a third member
selected by mutual agreement of the two parties from nationals of a third country. Should the two parties
fail to agree within a period of one month upon the appointment of the third member, the Secretary-
General of the United Nations may be requested by either party to make the appointment”

Opinion of the Court for Questions III and IV:


The decision of the majority of the members of the Commission shall be the decision of the
Commission, and shall be accepted by the Parties as definitive and binding."
The question at issue is whether the provision empowering the Secretary-General to appoint the third
member of the Commission applies to the present case, in which one of the parties refuses to appoint
its own representative to the Commission.
It has been contended that the term "third member" is used here simply to distinguish the neutral
member from the two Commissioners appointed by the parties without implying that the third member
can be appointed only when the two national Commissioners have already been appointed, and that
therefore the mere fact of the failure of the parties, within the stipulated period, to select the third
member by mutual agreement satisfies the condition required for the appointment of the latter by the
Secretary-General.
The Court considers that the text of the Treaties does not admit of this Interpretation. While the text in
its literal sense does not completely exclude the possibility of the appointment of the third member
before the appointment of both national Commissioners it is nevertheless true that according to the
natural and ordinary meaning of the terms it was intended that the appointment of both the national
Commissioners should precede that of the third member. This clearly results from the sequence of the
events contemplated by the article: appointment of a national Commissioner by each party; selection
of a third member by mutual agreement of the parties ; failing such agreement within a month, his
appointment by the Secretary-General. Moreover, this is the normal order followed in the practice of
arbitration, and in the absence of any express provision to the contrary there is no reason to suppose
that the parties wished to depart from it.
The Secretary-Generals power to appoint a third member is derived solely from the agreement of the
parties as expressed in the disputes clause of the Treaties ; by its very nature such a clause must be
strictly construed and can be applied only in the case expressly provided for therein. The case
envisaged in the Treaties is exclusively that of the failure of the parties to agree upon the selection of
a third member and by no means the much more serious case of a complete refusal of co-operation by

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
44
one of them, taking the form of refusing to appoint its own Commissioner. The Power conferred upon
the Secretary-General to help the parties; out of the difficulty of agreeing upon a third member cannot
be extended to the Situation which now exists.
Reference has been made for the purpose of justifying the reversal of the normal order of appointment,
to the possible advantage that might result, in certain circumstances, from the appointment of a third
member before the appointment by the parties of their respective commissioners. Such a change in the
normal sequence could only be justified if it were shown by the attitude of the Parties that they desired
such a reversal in order to facilitate the constitution of the Commissions in accordance with the terms
of the Treaties. But such is not the present case. The Governments of Bulgaria, Hungary and Romania
have from the beginning denied the very existence of a dispute, and have absolutely refused to take
part, in any manner whatever, in the procedure provided for in the disputes clauses of the Treaties.
Even after the Court had given its Advisory Opinion of March 3oth, 1950, which declared that these
three Governments were bound to carry out the provisions of the Peace Treaties for the settlement of
disputes, particularly the obligation to appoint their own Commissioners, these Governments have
continued to adopt a purely negative attitude.
In these circumstances, the appointment of a third member by the Secretary-General, instead of
bringing about the constitution of a three member Commission such as the Treaties provide for, would
result only in the constitution of a two-member Commission. A Commission consisting of two members
is not the kind of commission for which the Treaties have provided. The opposition of the Commissioner
of the only party represented could prevent a Commission so constituted from reaching any decision
whatever. Such a Commission could only decide by unanimity, whereas the dispute clause provides
that "the decision of the majority of the members of the Commission shall be the decision of the
Commission and shall be accepted by the parties as definitive and binding". Nor would the decisions
of a Commission of two members, one of whom is appointed by one party only, have the same degree
of moral authority as those of a three-member Commission. In every respect, the result would be
contrary to the letter as well as the spirit of the Treaties.
In short, the Secretary-General would be authorized to proceed to the appointment of a third member
only if it were possible to constitute a Commission in conformity with the provisions of the Treaties. In
the present case, the refusal by the Governments of Bulgaria, Hungary and Romania to appoint their
own Commissioners has made the constitution of such a Commission impossible and has deprived the
appointment of the third member by the Secretary-General of every purpose.
As the Court has declared in its Opinion of March 30th, 1950, the Governments of Bulgaria, Hungary
and Romania are under an obligation to appoint -their representatives to the Treaty Commissions, and
it is clean that refusal to fulfill a treaty obligation involves international responsibility. Nevertheless, such
a refusal cannot alter the conditions contemplated in the Treaties for the exercise by the Secretary-
General of his power of appointment. These conditions are not present in this case, and their absence
is not made good by the fact that it is due to the breach of a treaty Obligation. The failure of machinery
for settling disputes by reason of the practical impossibility of creating the Commission provided for in
the Treaties is one thing ; international responsibility is another. The breach of a treaty obligation cannot
be remedied by creating a Commission which is not the kind of Commission contemplated by the
Treaties. It is the duty of the Court to interpret the Treaties, not to revise them.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
45
The principle of Interpretation expressed in the maxim: Ut res magis valeat quam pereat, often
referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions for the
settlement of disputes in the Peace Treaties a meaning which, as stated above, would be contrary to
their letter and spirit.
It has been pointed out that an arbitration commission may make a valid decision although the original
number of its members, as fixed by the arbitration agreement, is later reduced by such circumstances
as the withdrawal of one of the commissioners. These cases presuppose the initial validity of a
commission, constituted in conformity with the will of the parties as expressed in the arbitration
agreement, whereas the appointment of the third member by the Secretary-General in circumstances
other than those contemplated in the Treaties raises precisely the question of the initial validity of the
constitution of the Commission. In law, the two situations are clearly distinct and it is impossible to
argue from one to the other.
Finally, it has been alleged that a negative answer by the Court to Question III would seriously
jeopardize the future of the large number of arbitration clauses which have been drafted on the same
model as that which appears in the Peace Treaties with Bulgaria, Hungary and Romania. The
ineffectiveness in the present case of the clauses dealing with the settlement of disputes does not
permit such a generalization. An examination of the practice of arbitration shows that, whereas the
draftsmen of arbitration conventions have very often taken care to provide for the consequences of the
inability of the parties to agree on the appointment, of a third member, they have, apart from exceptional
cases, refrained from anticipating a refusal by a party to appoint its own commissioner. The few Treaties
containing express provisions for such a refusal indicate that the States which adopted this course felt
the impossibility of remedying this situation simply by way of Interpretation. In fact, the risk of such a
possibility of a refusal is a small one, because normally each party has a direct interest in the
appointment of its commissioner and must in any case be presumed to observe its treaty obligations.
That this was not so in the present case does not justify the Court in exceeding its judicial function on
the pretext of remedying a default for the occurrence of which the Treaties have made no provision.
Consequently, Question III must be answered in the negative. It is therefore not necessary for the Court
to consider Question IV, which requires an answer only in the event of an affirmative answer to the
preceding Question.

The principles established by these judgments and advisory opinions may be stated as follows:
(1) That "the treaty must be read as a whole, and that its meaning is not to be determined merely upon
particular phrases which, if detached from the context, may be interpreted in more than one sense".
(2) "An Interpretation which would deprive the .... Treaty of a great part of its value is inadmissible."
(3) Particular provisions should be interpreted in such a manner as to give effect to the general
purposes and objects of the Treaty provided that "it does not involve doing violence to their terms".

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
46
Fisheries Jurisdiction Case (Jurisdiction, United Kingdom v. Iceland, ICJ Reports 1974)
FACTS:
The International Court of Justice delivered judgment, by 10 votes to 4. Iceland (Althing) attempted to
extend its exclusive fishing rights to 50 nautical miles from the baseline, over its 12 mile allowance. The
law Iceland passed to enact such a regulation dealt with the Scientific Conservation of the continental
shelf. However, Iceland and the United Kingdom reached an agreement in 1961 stating that the United
Kingdom would recognized the 12 miles fishery zone. Iceland terminated this agreement in 1971 in
which it set up its new fishery zone. United Kingdom has been fishing in this region for many years and
brought this issue to the ICJ when Iceland set up its new parameters. The ICJ found that it had
jurisdiction in this matter. Iceland failed to take part in the proceedings.
ISSUE:
Does Iceland have the rights to extend its fishery zone from 12 miles to 50 miles?
What role does the agreement between Iceland and United Kingdom play within the court’s decision?
What is the law of the high seas and has it been establish? Can it be enforced?

HELD:
The court found that Iceland’s extension of its fishery zone from 12 miles to 50 miles is not permissible
and not “opposable” to the United Kingdom. Two concepts that arose from the second Conference of
the Law of the Sea was that a fishery zone, “between the territorial sea and the high seas, within the
coastal State could claim exclusive fisheries jurisdiction.” This area has been accepted to be 12 miles
from its baseline. In international law, if a general practice is accepted by states and is practice, then
this concept is law.
The agreement made between Iceland and United Kingdom does play a key factor in the court’s
decision. A signed agreement/treaty between two nations is binding agreement that must be held
between nations. This agreement also proves and shows that Iceland accepted the 12 miles fishery
zone jurisdiction and was content with it. Thus the United Kingdom has two factors that play favorably
in the courts eyes; the facts of the case line up with International Law and an agreement was struck
between both nations that lined up with what International Law would allow.
According to the United Nations Conference on the Law of the Sea it declared freedom of the high seas
and this freedom is to be exercised by all states. However, nothing arouse from these conferences
concerning fishery jurisdiction and where it stops. All that was confirmed was a zone between the
territorial zone and the high sea is where fishery jurisdiction stops. Although it was not establish in a
treaty, states accepted this general rule of a 12 miles fishery zone and given that Iceland did not protest
this rule it thus gave consent to it.
The international law elements of the case are the laws of the sea, the theory that silence leads to
consent, and sub specie legis ferendae,
The rule of the law that was used in this case was the general rule under the United Nations Conference
on the Law of the Sea. This conference set out to establish rules and regulations for the sea. Although
there was no written rule for fishery jurisdiction, silent consent was given to the 12 miles regulation thus
making it law. Although the ICJ knew that talk was going to happen to increase this area, it could not
anticipate such a change (sub specie legis ferendae) and needed to wait until it was written down.
One final principle that is extremely important in nothing is that the United Kingdom has been fishing in
these waters for centuries without any issues. Since Iceland had no issues prior to this incident, the
United Kingdom had become aa permanent part within the region and cannot be removed. Silence lead
to consent, thus if a state has an issue with a certain action, it should speak up.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
47
The court’s ruling in favor of the United Kingdom is important when it comes to international law. It
shows that the courts follow the rules and laws exactly as stated or practice and does not judge based
off of what is to come (a law change). A court must take the facts as is and base their judgments off of
that. As well it provides a written account of the 12 miles fishery jurisdiction that many of the states
have consented to. But most importantly it shows and proves the theory of ‘silence leads to consent.’
A states cannot follow certain regulations for years and then change its views immediately because a
new favorable opportunity has risen. A state must speak up with any concerns it may have and if it
doesn’t it must then follow the rules it has agreed to.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
48
Danube Dam Case (Hungary v. Slovakia, 27 ILM 1998)
Facts:
In 1977, Hungary and Czechoslovakia entered into a Treaty (hereafter 1977 Treaty) to, jointly,
build and operate the Gabčíkovo-Nagymaros System of Locks or Gabčíkovo-Nagymaros dams. The
purpose was, among others, to improve navigation, irrigation, and generation of hydroelectricity from
the Danube River, which ran through the two countries’ respective boundaries. Nagymaros was in
Hungarian territory and Gabčíkovo is in Czechslovakian territory.
On May 13, 1989, Hungary suspended and abandoned works on the Nagymaros project and
their part on the Gabčíkovo citing environmental concerns. On July 1991, Slovakia (successor of
Czechoslovakia) continued working on Gabčíkovo. Thereafter, Hungary notified Slovakia on May 19,
1992 that the 1977 treaty was terminated. However, despite the notification from Hungary, Slovakia
operated the Gabčíkovo dam on October 1992.
Hungary contends that they are entitled to suspend and abandon the 1977 treaty because of the
state of necessity resulting from a breach by Slovakia and a fundamental change in circumstances.
First, Slovakia violated the treaty when they unilaterally continued with the project despite Hungary’s
finding of environmental concerns. Second, Hungary also contend that they could no longer comply
with their obligation to the treaty because of impossibility of performance. Lastly, they argue that the
cumulating of events such as changes in political nature, reduced economic viability and progress of
environmental knowledge, constituted a fundamental change of circumstances.
On the other hand, Slovakia contends that the treaty is still in force and that the May 19, 1992,
notification of termination by Hungary had no legal effect. Slovakia alleges that they may continue
working on the Gabčíkovo dam because there is a provisional solution. The provisional solution or
unilateral action taken by them, also known as Variant C, was justified because Hungary was not willing
to resume the fulfilment of its responsibilities set forth in the 1977 Treaty and Hungary abandoned the
project at such a late state. Furthermore, Slovakia claimed the duty to mitigate the ecological,
economical and navigational damages imposed upon it.
Issues:
1. Whether or not Hungary was entitled to suspend and subsequently abandon, in 1989, the works
on the Nagymaros Project and on the part of the Gabčíkovo Project for which the Treaty
attributed responsibility them.

2. Whether the Slovakia was entitled to proceed, in November 1991, to the “provisional solution”
and to put into operation from October 1992 the Gabčíkovo system.

3. Whether or not the notification by Hungary on May 1992 validly terminated the 1977 Treaty.
Held:
1. No.
First, there is no provision in their 1977 agreement regarding termination. Second, with
respect to the state of necessity invoked by Hungary, it is not a ground for the termination of a
treaty. Even if state of necessity is found to exist, it may only be invoked to exonerate the State

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
49
from its responsibility in failing to implement a treaty. Third, regarding the impossibility of
performance, Article 61, paragraph 2 of the Vienna Convention provides that “impossibility of
performance may not be invoked for the termination of a treaty by a party to that treaty when it
results from that party’s own breach of an obligation flowing from that treaty.” It views these
actions as an unwillingness to comply with the binding responsibilities attributed to it in the 1977
Treaty and as actions that undermine and render impossible the fulfilment of the "single and
indivisible" project agreed on. Fourth, with respect to the contention that there has been a
fundamental change of circumstances, the Court finds that the said events are not of such a
nature that their effect would radically transform the extent of the obligations still to be performed
in order to accomplish the project. A fundamental change of circumstances must have been
unforeseen; the existence of the circumstances must have constituted an essential basis of the
consent of the parties to be bound by the treaty. There must be a material breach of the treaty
itself, by a State party to that treaty, to entitle the other party to rely on it as a ground for
terminating the treaty. The violation of other treaty rules or of rules of general international law
may justify the taking of certain measures, including countermeasures, by the injured State, but
it does not constitute a ground for termination under the law of treaties.

2. No.
Under the “principle of approximate application” or a solution as close to the original
project as possible, Slovakia was justified because Hungary’s unlawful actions made it
impossible for Slovakia to fulfill its duties according to the 1977 Treaty. Hungary’s abandonment
of its responsibilities warranted a claim of damages. However, it does not justify the damming of
the Danube by Slovakia, which The Court deems as an international wrongful act on the grounds
of unilateral control of a shared resource.
Therefore, Slovakia was entitled to damages but not to the extent of operating the
Gabčíkovo system in 1992.

3. No.
Slovakia violated the Treaty only when it diverted the waters of the Danube into the
bypass canal in October 1992. However, the notice of termination was sent by Hungary on 19
May 1992. In the court’s view, it was premature and the development of new norms in
international environmental law are relevant to the case. Nevertheless, the provisions of the
treaty allow for the implementation of practices adhering to these new norms, and that these
developments are not ground for termination.
Therefore, it follows that Hungary’s notice of termination did not have legal effect and the
1977 Treaty is still valid.
Unless the parties can further negotiate, Hungary is to pay reparations for the damages
incurred to Czechoslovakia and Slovakia due to its abandonment of its respective part in the
dam.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
50
Sei Fujii v. California, 38 Cal. 2d 718 (1952), 242 P.2d 617
Facts: The California Alien Land Law prohibited foreigners who were ineligible to obtain American
citizenship (Nationality) from owning real estate in California. Similar laws existed in numerous other
states, and they were primarily designed to affect immigrants of Asian descent. Initially broader in
scope, the law in its final form discriminated mainly against Japanese citizens; in particular, Chinese,
Indians, and Filipinos were not targeted any more. In 1948, one part of the California Alien Land Law
was declared unconstitutional by the US Supreme Court, which held that the 14th Amendment was
violated when land, purchased by an ineligible foreigner for his child who was himself an American
citizen, escheated to the State (Oyama v California 332 Statutes at Large 633 [1948]). In the same
year, Mr Sei Fujii, a Japanese citizen and graduate of an American law school, acquired land through
a grant. He applied to the court in Los Angeles with a request of clarification regarding whether he was
able to own land despite the Alien Land Law.
Issue: Whether or not the Alien Land Law violates the right of the Mr. Sei Fujii under the laws of the
United Nations.
Ruling: The Supreme Court of California’s decision in Sei Fujii v State of California addresses the
question of direct applicability of certain provisions of the United Nations Charter (‘UN Charter’). It
rejected the notion that Arts 55 and 56 UN Charter regarding human rights are self-executing treaty
provisions, but at the same time it held that central provisions of the California Alien Land Law banning
certain foreigners from acquiring land (Property Right to International Protection) violated the US
Constitution.

Varied approaches to the problem were taken by the courts. First, the District Court of Los Angeles
held that the land had escheated to the state of California. Second, the District Court of Appeals of
California decided that the Alien Land Law was inconsistent with the UN Charter. Citing the Preamble
as well as Arts 1, 2, 55, and 56 UN Charter, the Court held that the UN Charter provided binding law
demanding the respect for human rights:
The Charter has become the ‘supreme Law of the Land; and the judges in every State shall be bound
thereby; any thing in the Constitution or Laws of any State to the Contrary notwithstanding’ U.S. Const.,
Art. VI. sec. 2… Clearly such a discrimination against a people of one race is contrary to both to the
letter and to the spirit of the Charter which, as a treaty, is paramount to every law of every state in
conflict with it. The Alien Land Law must therefore yield to the treaty as the superior authority.
This argument, but not the overall claim of Mr Fujii, was rejected in the final decision delivered by the
California Supreme Court. This Court held that provisions of the UN Charter were not to be invoked
against the Alien Land Law on the ground that they lacked direct applicability. However, the Court found
the law to be in violation of the 14th Amendment to the US Constitution:
It is not disputed that the charter is a treaty, and our federal Constitution provides that treaties made
under the authority of the United States are part of the supreme law of the land and that the judges in
every state are bound thereby. U.S. Const., art. VI. A treaty, however, does not automatically supersede
local laws which are inconsistent with it unless the treaty provisions are self-executing… The language
used in Articles 55 and 56 is not the type customarily employed in treaties which have been held to be
self-executing and to create rights and duties in individuals.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
51
The California Supreme Court finally held:
The Californian Alien Land Law is obviously designed and administered as an instrument for racial
discrimination, and the most searching examination discloses no circumstances justifying classification
on that basis. There is nothing to indicate that those alien residents who are racially ineligible for
citizenship possess characteristics which are dangerous to the legitimate interests of the state, or that
they, as a class, might use the land for purposes injurious to public morals, safety or welfare.
Accordingly, we hold that the alien land law is invalid as a violation of the Fourteenth Amendment.
Comparing the District Court of Appeals and California Supreme Court decisions in this case it is
apparent that the Supreme Court decision is important from an international as well as a national law
perspective (International Law and Domestic [Municipal] Law). From the international law perspective
the decision’s relevance is mainly to be seen in the discussion of the question of self-executing treaty
provisions. The California Supreme Court, relying on Chief Justice Marshall’s opinion in Foster v
Neilson (27 US 2 Pet 253 [1829]), argued that international treaties may be self-executing or not,
depending on the specific situation. It held that the relevant UN Charter provisions regarding human
rights were not self-executing—contrary to Arts 104 and 105 UN Charter which had already been
qualified as self-executing in Curran v City of New York (77 NYS 2d 206 at 212)—and therefore were
not able to invalidate contradicting state law. The court thereby not only rejected the reasoning of the
court of appeals, but also that of the concurring opinion of four US Supreme Court judges in Oyama v
California. In relying on the 14th Amendment to the US Constitution, the California Supreme Court
instead followed the line of argument prescribed by the majority opinion in Oyama v California. In order
to solve the problem of earlier precedent set by the US Supreme Court (Porterfield v Webb 263 US 225
[1923]) that had held the law constitutional, the California Supreme Court emphasized the fact that after
numerous amendments the law now excluded almost solely Japanese citizens in practice. The Court
explicitly felt encouraged to focus its argument on such discrimination because most recently the US
Supreme Court had, in some cases, declared provisions based on ineligibility to citizenship as violations
of the 14th Amendment (eg, Takahashi v Fish & Game Com 334 US 410, 68 S Ct 1138 [1948]). The
Court then pointed out that the right to own land was an essential element of human (economic and
private) liberty and no sufficient reasons to restrict it were to be seen.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
52
INTERNATIONAL CUSTOMS:

Kuroda v. Jalandoni, L-2662, March 26,1949 , 83 SCRA 171


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 1943 and 1944
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/S:

1. WON EO 68 is illegal on the ground that it violates not only the provision of our constitutional law
but also our local laws to say nothing of the fact (that) the Philippines is not a signatory nor an
adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore
petitioners is charged of 'crimes' not based on law, national and international.

2. WON the participation in the prosecution of the case against petitioner before the Commission in
behalf of the United State of America of attorneys Melville Hussey and Robert Port who are not
attorneys authorized by the Supreme Court to practice law in the Philippines is a diminution of our
personality as an independent state and their appointment as prosecutor are a violation of our
Constitution for the reason that they are not qualified to practice law in the Philippines

3. WON Attorneys Hussey and Port have no personality as prosecution the United State not being a
party in interest in the case.

HELD:

1. No. 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 in its section 3, that —

The Philippines renounces war as an instrument of national policy and adopts the generally accepted
principles of international law as part of the of the nation.

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
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
53
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 the our Constitution.

Also, the promulgation of said executive order is an exercise by the President of his power as
Commander in chief of all our armed forces.

Furthermore, when the crimes charged against petitioner were allegedly committed the Philippines was
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.

2. No. 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. In facts it is common in military tribunals that counsel for the parties are usually
military personnel who are neither attorneys nor even possessed of legal training.

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.

3. US is a party in interest. It is of common knowledge that the United State and its people have been
equally if not more greatly aggrieved by the crimes with which petitioner stands charged before the
Military Commission. It can be considered a privilege for our Republic that a leader nation should submit
the vindication of the honor of its citizens and its government to a military tribunal of our country.

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.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
54
Yamashita v. Styer, L-129, December 19, 1945, 75 Phil 563
FACTS: Tomoyuki Yamashita, erstwhile commanding general of the 14th army group of the Japanese
Imperial Army in the Philippines, and now charged before an American Military Commission with the
most monstrous crimes ever committed against the American and Filipino peoples, comes to this Court
with a petition for habeas corpus and prohibition against Lt. Gen. Wilhelm D. Styer, Commanding
General of the United States Army Forces, Western Pacific. It is alleged therein that petitioner 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; and he now asks that he be
reinstated to his former status as prisoner of war, and that the Military Commission be prohibited from
further trying him, upon the following grounds:
(1) That the Military Commission was not duly constituted, and, therefore, it is without jurisdiction;
(2) That the Philippines cannot be considered as an occupied territory, and the Military
Commission cannot exercise jurisdiction therein;
(3) That Spain, the "protecting power" of Japan, has not been given notice of the implementing
trial against petitioner, contrary to the provisions of the Geneva Convention of July 27, 1892,
and therefore, the Military Commission has no jurisdiction to try the petitioner;
(4) That there is against the petitioner no charge of an offense against the laws of war; and
(5) That the rules of procedure and evidence under which the Military Commission purports to
be acting denied the petitioner a fair trial.
ISSUE: WON the petitions for habeas corpus and prohibition be granted in this case and if the Military
Commission validly constituted by respondent, therefore having jurisdiction over the war crimes
HELD: 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.
True that the rule was made applicable in time of war, and there is a conflict of opinion as to whether
war has already terminated. War is not ended simply because hostilities have ceased. After cessation
of armed hostilities, incident of war may remain pending which should be disposed of as in time of war.
"An important incident to a conduct of a war is the adoption of measure by the military command not

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
55
only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies
who in their attempt to thwart or impede our military effort to have violated the law of the war." (Ex parte
Quirin, 317 US., 1; 63 Sup. Ct., 2.) Indeed, the power to create a Military Commission for the trial and
punishment of war criminals is an aspect of waging war. And, in the language of a writer, a Military
Commission "has jurisdiction so long as a technical state of war continues. This includes the period of
an armistice, or military occupation, up to the effective date of a treaty agreement." (Cowles,Trial of
War Criminals by Military Tribunals, American Bar Association Journal, June, 1944.)
Upon the other hand, we have once said (Payomo vs. Floyd, 42 Phil., 788), — and this applicable in
time of war as well as the time of peace — that this Court has no power to review upon habeas corpus
the proceedings of a military or naval tribunal, an that, in such case, "the single inquiry, the test, is
jurisdiction. That being established, the habeas corpus must be denied and the petitioner discharged."
(In re Grimley, 137 U.S., 147; 11 Sup. Ct., 54; 34 La. ed., 636.) Following this rule in the instant case,
we find that the Military Commission has been validly constituted and it has jurisdiction both over the
person of the petitioner and over the offenses with which he is charged.
The Commission has been validly constituted by Lieutenant General Styer duly issued by General
Douglas MacArthur, Commander in Chief, United States Army Force Pacific, in accordance in authority
vested in him and with radio communication from the Joint Chiefs of Staff, as shown by Exhibits C, E,
G, and H, attached by petition. Under paragraph 356 of the Rules of the Land Welfare a Military
Commission for the trial and punishment of the war criminals must be designated by the belligerent.
And the belligerent's representative in the present case is none other than the Commander in Chief of
the United States Army in the Pacific. According to the Regulations Governing the Trial of the War
Criminals in the Pacific, attached as Exhibit F to the petition, the "trial of persons, units and
organizations accused as a war criminals will be the Military Commissions to be convened by or under
the authority of the Commander in Chief, United States Army Forces, Pacific." Articles of War Nos. 12
and 15 recognized the "Military Commission" appointed by military command as an appropriate tribunal
for the trial and punishment of offenses against the law of the war not ordinarily tried by court martial.
(Ex parte Quirin, supra.) And this has always been the United States military practice at since the
Mexican War of 1847 when General Winfield Scott took the position that, under the laws of war, a
military commander has an implied power to appoint and convene a Military Commission. This is upon
the theory that since the power to create a Military Commission is an aspect of waging war, Military
Commanders have that power unless expressly withdrawn from them. The Military Commission thus
duly constituted has jurisdiction both over the person of the petitioner and over the offenses with which
he is charged. It has jurisdiction over the person of the petitioner by reason of his having fallen into the
hands of the United States Army Forces. Under paragraph 347 of the Rules of the Land Warfare, "the
commanders ordering the commission of such acts, or under whose authority they are committed by
their troops, may be punished by the belligerent into whose hands they may fall." As to the jurisdiction
of the Military Commission over war crimes, the Supreme Court of the United States said: From the
very beginning of its history this Court has recognized and applied the law of war as including that part
of the law of nations which prescribes, for the conduct of war, the status rights and duties and of enemy
nations as well as of enemy individuals. By the Articles of War, and especially Article 15, Congress has
explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction
to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making
rules for the government of our Armed Forces, has thus exercised its authority to define and punish
offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
56
military commissions to try persons and offenses which, according to the rules and precepts of the law
of nations, and more particularly the law of war, are cognizable and punishment of the war criminals
must be designated by the belligerent. And the belligerent's representative in the present case is none
other than the Commander in Chief of the United States Army in the Pacific. According to the
Regulations Governing the Trial of the War Criminals in the Pacific, attached as Exhibit F to the petition,
the "trial of persons, units and organizations accused as a war criminals will be the Military
Commissions to be convened by or under the authority of the Commander in Chief, United States Army
Forces, Pacific." Articles of War Nos. 12 and 15 recognized the "Military Commission" appointed by
military command as an appropriate tribunal for the trial and punishment of offenses against the law of
the war not ordinarily tried by court martial. (Ex parte Quirin, supra.) And this has always been the
United States military practice at since the Mexican War of 1847 when General Winfield Scott took the
position that, under the laws of war, a military commander has an implied power to appoint and convene
a Military Commission. This is upon the theory that since the power to create a Military Commission is
an aspect of waging war, Military Commanders have that power unless expressly withdrawn from them.
The Military Commission thus duly constituted has jurisdiction both over the person of the petitioner
and over the offenses with which he is charged. It has jurisdiction over the person of the petitioner by
reason of his having fallen into the hands of the United States Army Forces. Under paragraph 347 of
the Rules of the Land Warfare, "the commanders ordering the commission of such acts, or under whose
authority they are committed by their troops, may be punished by the belligerent into whose hands they
may fall." As to the jurisdiction of the Military Commission over war crimes, the Supreme Court of the
United States said:
From the very beginning of its history this Court has recognized and applied the law of war as
including that part of the law of nations which prescribes, for the conduct of war, the status rights
and duties and of enemy nations as well as of enemy individuals. By the Articles of War, and
especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so,
that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in
appropriate cases. Congress, in addition to making rules for the government of our Armed
Forces, has thus exercised its authority to define and punish offenses against the law of nations
by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try
persons and offenses which, according to the rules and precepts of the law of nations, and more
particularly the law of war, are cognizable by such tribunals. (Ex parte Quirin, 317 U.S. 1, 27-28;
63 Sup. Ct., 2.)
Petitioner is charged before the Military Commission sitting at Manila with having members of his
command "to commit brutal atrocities and other high crimes against the people of the United States
and of its allies and dependencies, particularly the Philippines," crimes and atrocities which in the bills
of particulars, are described as massacre and extermination of thousand and thousands of unarmed
noncombatant civilians by cruel and brutal means, including bayoneting of children and raping of young
girls, as well as devastation and destruction of public, or private, and religious property for no other
motive than pillage and hatred. These are offenses against the laws of the war as described in
paragraph 347 of the Rules of Land Warfare.
It is maintained, however, that, according to the Regulations Governing the Trial of War Criminals

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
57
in the Pacific. "the Military Commission . . . shall have jurisdiction over all of Japan and other areas
occupied by the armed forces commanded by the Commander in Chief, United States Army Forces,
Pacific" (emphasis supplied), and the Philippines is not an occupied territory. The American Forces
have occupied the Philippines for the purpose of liberating the Filipino people from the shackles of
Japanese tyranny, and the creation of a Military Commission for the trial and punishment of Japanese
war criminals is an incident of such war of liberation.
It is maintained that Spain, the "protecting power" of Japan, has not been given notice before trial was
begun against petitioner, contrary to the provisions of the Geneva Convention of July 27, 1929. But
there is nothing in that Convention showing that notice is a prerequisite to the jurisdiction of Military
Commissions appointed by victorious belligerent. Upon the other hand, the unconditional surrender of
Japan and her acceptance of the terms of the Potsdam
Ultimatum are a clear waiver of such a notice.
It may be stated, furthermore, that Spain has severed her diplomatic relation of Japan because of
atrocities committed by the Japanese troops against Spaniards in the Philippines. Apparently,
therefore, Spain has ceased to be the protecting power of Japan.
And, lastly, it is alleged that the rules of procedure and evidence being followed by the
Military Commission in the admission of allegedly immaterial or hearsay evidence, cannot divest the
commission of its jurisdiction and cannot be reviewed in a petition for the habeas corpus. (25 Am. Jur.,
218; Collins vs. McDonald, 258 U. S. 416; 66 Law. ed., 692; 42 Sup. Ct., 326).
Kookooritchkin v. Solicitor General, L-1812, August 1948, 81 Phil 435
Facts:
In August, 1941, Eremes Kookooritchkin (appellee) 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 March, 1945. The case was declared reconstituted on May 10, 1947, and the evidence
was presented on August 28 and September 30, 1947. On the same day resolution was issued granting
the petition.

The lower court made the findings, among others that:


- 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.

- When the revolution broke out in Russia in 1917, he joined the White Russian Army at
Vladivostok and fought against the Bolsheviks until 1922 when the White Russian Army was
overwhelmed by the Bolsheviks. As he refused to join the Bolshevik regime, he fled by sea from
Vladivostok to Shanghai and from this Chinese port he found his way to Manila, arriving at this
port as a member of a group of White Russians under Admiral Stark in March, 1923.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
58
- During the years preceding the declaration of war by Russia against Japan, the applicant of his
own volition chose to cast his lot with the guerrilla movement and fought the enemy in several
encounters in the Province of Camarines Sur. He belonged to the guerrilla outfit of Colonel
Padua with rank of major. Upon the arrival of the forces of liberation he was attached to the
American Army from April to June, 1945.

- 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.

Appellant signs four errors in the appealed resolution.


1. Appellant alleges that no documentary or testimonial evidence was introduce to establish the
fact that apellee had lawfully been admitted into the Philippines
2. Appellee cannot speak and write any of the principal Philippine languages
3. Appellee is not stateless therefore disqualified for Philippine citizenship under section 4(h) of the
Revised Naturalization Law

Issue: WON appellee is entitled to acquire Filipino citizenship based on the lower court’s findings

Held:
YES.
1. The records of the Bureau of Justice, where the declarations of intention to become a Filipino
citizen were filed, had been lost or destroyed during the battle for the liberation of Manila, and
the certificate alluded to has not been reconstituted.

The 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 thereto.

We conclude that petitioner's declaration is valid under section 5 of the Naturalization Law,
failure to reconstitute the certificate of arrival notwithstanding. What an unreconstituted
document intended to prove may be shown by other competent evidence.

2. The lower court made the finding of fact that applicant speaks and writes English and Bicol and
there seems to be no question about the competency of the judge who made the
pronouncement, because he has shown by the appealed resolution and by his questions
propounded to appellee, that he has command of both English and Bicol.

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
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
59
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
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.

There is a reason to believe that the lower court's pronouncement is well taken considering the
fact that, after he was liberated in 1942 from the Japanese in the Naga prison, petitioner joined
the guerrilla in the Bicol region, took part in encounters and skirmishes against the Japanese,
and remained with the guerrilla until the Americans liberated the Bicol provinces. If appellee with
his smattering of Bicol was able to get along with his Bicol comrades in the hazardous life of the
resistance movement, we believe that his knowledge of the language satisfies the requirement
of the law.

3. Appellant points out that petitioner stated in his petition for naturalization that he is citizen or
subject of the Empire of Russia, but the Empire of Russia has ceased to exist since the Czars
were overthrown in 1917 by the Bolshevists, and the petitioner disclaims allegiance or
connection with the Soviet Government established after the overthrow of the Czarist
Government.
We do not believe that the lower court erred in pronouncing appellee stateless. Appellee's
testimony, besides being uncontradicted, is supported by the well-known fact that the
ruthlessness of modern dictatorship has scattered throughout the world a large number of
stateless refugees or displaced persons, without country and without flag.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
60
Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua
v. US, ICJ Reports, June 27,1986)
Facts:

In July 1979 the Government of President Somoza collapsed following an armed opposition led by
the Frente Sandinista de Liberacibn Nacional (FSLN). The new government – installed by FSLN –
began to meet armed opposition from supporters of the former Somoza Government and ex-members
of the National Guard. The US – initially supportive of the new government – changed its attitude when,
according to the United States, it found that Nicaragua was providing logistical support and weapons
to guerrillas in El Salvador. In April 1981 it terminated United States aid to Nicaragua and in September
1981, according to Nicaragua, the United States “decided to plan and undertake activities directed
against Nicaragua”.

The armed opposition to the new Government was conducted mainly by


(1) Fuerza Democratica Nicaragüense (FDN), which operated along the border with Honduras, and
(2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica,
(see map of the region). Initial US support to these groups fighting against the Nicaraguan Government
(called “contras”) was covert. Later, the United States officially acknowledged its support (for example:
In 1983 budgetary legislation enacted by the United States Congress made specific provision for funds
to be used by United States intelligence agencies for supporting “directly or indirectly military or
paramilitary operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in control of the contras, the United
States devised their strategy and directed their tactics and that they were paid for and directly controlled
by United States personal. Nicaragua also alleged that some attacks were carried out by United
States military – with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua
included the mining of Nicaraguan ports and attacks on ports, oil installations and a naval base.
Nicaragua alleged that aircrafts belonging to the United States flew over Nicaraguan territory to gather
intelligence, supply to the contras in the field and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJ’s
jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing, however,
stated that it relied on an inherent right of collective self-defense guaranteed in A. 51 of the UN Charter
by “providing, upon request, proportionate and appropriate assistance…” to Costa Rica, Honduras and
El Salvador in response to Nicaragua’s alleged acts aggression against those countries (paras. 126,
128).

Issue:

1. W/N the United States breach its customary international law obligation – not to use force against
another State – when it directly attacked Nicaragua in 1983 – 1984 and when its activities in
bullet point 1 above resulted in the use of force?

Held:

The International Court of Justice held that the United States violated the above-mentioned customary
international laws.
The Court held that the United States could not justify its military and paramilitary activities on
the basis of collective self-defense.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
61
 Customary international law allows for exceptions to the prohibition on the use of force –
including the right to individual or collective self-defense. The United States, at an earlier stage
of the proceedings, had asserted that the Charter itself acknowledges the existence of this
customary international law right when it talks of the “inherent” right of a State under Article 51
of the Charter (para.193).

 When a State claims that it used force in collective self-defense, the Court would look into two
aspects:

(1) whether the circumstances required for the exercise of self-defense existed and

(2) whether the steps taken by the State, which was acting in self-defense, corresponds to the
requirements of international law (i.e. did it comply with the principles of necessity and
proportionality).

 Several criteria must be met for a State to exercise the right of individual or collective self-
defense:

(1) A State must have been the victim of an armed attack;

(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an armed
attack took place nor not is done by the state who was subjected to the attack. A third State cannot
exercise a right of collective self-defense based its (the third State’s) own assessment]; and

(3) In the case of collective self-defense – the victim State must request for assistance (“there is no rule
permitting the exercise of collective self-defense in the absence of a request by the State which regards
itself as the victim of an armed attack”).

(4) The State does not, under customary international law, have the same obligation as under Article
51 of the UN Charter to report to the Security Council that an armed attack happened – but “the absence
of a report may be one of the factors indicating whether the State in question was itself convinced that
it was acting in self-defense”

“At this point, the Court may consider whether in customary international law there is any
requirement corresponding to that found in the treaty law of the United Nations Charter, by
which the State claiming to use the right of individual or collective self-defense must report to
an international body, empowered to determine the conformity with international law of the
measures which the State is seeking to justify on that basis. Thus Article 51 of the United
Nations Charter requires that measures taken by States in exercise of this right of self-defense
must be “immediately reported” to the Security Council. As the Court has observed above
(paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in customary
international law, may well be so unencumbered with the conditions and modalities
surrounding it in the treaty. Whatever influence the Charter may have had on customary
international law in these matters, it is clear that in customary international law it is not a
condition of the lawfulness of the use of force in self-defense that a procedure so closely
dependent on the content of a treaty commitment and of the institutions established by it,
should have been followed. On the other hand, if self-defense is advanced as a justification

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
62
for measures which would otherwise be in breach both of the principle of customary
international law and of that contained in the Charter, it is to be expected that the conditions
of the Charter should be respected. Thus for the purpose of enquiry into the customary law
position, the absence of a report may be one of the factors indicating whether the State in
question was itself convinced that it was acting in self-defense.”

The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and Honduras in
determining whether an armed attack was undertaken by Nicaragua against the three countries – which
in turn would necessitate self-defense (paras 230 – 236). The Court referred to statements made by
El Salvador, Costa Rica, Honduras and the United States before the Security Council. None of the
countries who were allegedly subject to an armed attack by Nicaragua (1) declared themselves as a
victim of an armed attack or request assistance from the United States in self-defense – at the time
when the United States was allegedly acting in collective self-defense; and (2) the United States did
not claim that it was acting under Article 51 of the UN Charter and it did not report that it was so acting
to the Security Council. The Court concluded that the United States cannot justify its use of force as
collective self-defense.

The criteria with regard to necessity and proportionality, that is necessary when using force in self-
defense – was also not fulfilled.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
63
North Sea Continental Shelf Cases, ICJ Reports, February 20,1969
FACTS:
The dispute was submitted on February 20, 1967 related to the delimitation of the continental
shelf between the Federal Republic of Germany and Denmark on the one hand, and between the
Federal Republic of Germany and the Netherlands on the other. Basing on the equidistance principle,
Netherlands and Denmark had drawn partial boundary lines.
A boundary based on the equidistance principle, i.e., an "equidistance line", left to each of the
Parties concerned all those portions of the continental shelf that were nearer to a point on its own coast
than they were to any point on the coast of the other Party. In the case of a concave or recessing coast
such as that of the Federal Republic on the North Sea, the effect of the equidistance method was to
pull the line of the boundary inwards, in the direction of the concavity. Consequently, where two
equidistance lines were drawn, they would, if the curvature were pronounced, inevitably meet at a
relatively short distance from the coast, thus "cutting off" the coastal State from the area of the
continental shelf outside. In contrast, the effect of convex or outwardly curving coasts, such as were,
to a moderate extent, those of Denmark and the Netherlands, was to cause the equidistance lines to
leave the coasts on divergent courses, thus having a widening tendency on the area of continental shelf
off that coast. These rule was reflecting the language of Article 6 of the Geneva Convention on the
Continental Shelf of 1958, designated as “equidistance-special circumstances” rule. That rule was to
the effect that in the absence of agreement by the parties to employ another method, all continental
shelf boundaries had to be drawn by means of an equidistance line unless "special circumstances"
were recognized to exist. According to Denmark and the Netherlands, the configuration of the German
North Sea coast did not of itself constitute, for either of the two boundary lines concerned, a special
circumstance.
The problem arose when an agreement on further prolongation of the boundary was proposed.
Federal Republic of Germany (Germany) was of the view that, together, these two boundaries would
produce an inequitable result for them. Due to Germany’s concave coastline, such line would result
losing of their share of the continental shelf based on the proportionality to the length of its North Sea
coastline.
The Federal Republic, for its part, had contended that the correct rule, at any rate in such
circumstances as those of the North Sea, was one according to which each of the States concerned
should have a "just and equitable share" of the available continental shelf, in proportion to the length of
its sea-frontage. It had also contended that in a sea shaped as is the North Sea, each of the States
concerned was entitled to a continental shelf area extending up to the central point of that sea, or at
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
64
least extending to its median line. Alternatively, the Federal Republic had claimed that if the
equidistance method were held to bc applicable, the configuration of the German North Sea coast
constituted a special circumstance such as to justify a departure from that method of delimitation in this
particular case.
Denmark and Netherlands argue that while Germany is not a party to the Convention (not having
ratified it), they are still bound by Article 6 of the Convention by estoppel and by customary international
law.

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

HELD:
NO. The International Court of Justice (ICJ) held that Germany has no legal obligation to accept
the equidistance-special circumstances principle under Article 6 of the Geneva Convention. It stated
that only a ‘very definite very consistent course of conduct on the part of a State’ would allow the court
to presume that a State had somehow become bound by a treaty (by a means other than in a formal
manner: i.e. ratification) when the State was ‘at all times fully able and entitled to…’ accept the treaty
commitments in a formal manner. The Court held that Germany had not unilaterally assumed
obligations under the Convention. The court also took notice of the fact that even if Germany ratified
the treaty, she had the option of entering into a reservation on Article 6 following which that particular
article would no longer be applicable to Germany (i.e. even if one were to assume that Germany had
intended to become a party to the Convention, it does not presuppose that it would have also
undertaken those obligations contained in Article 6).
Second, ICJ 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.
Lastly, ICJ held that Article 6 of the Convention had not attained a customary law status
(compare the 1958 Geneva Convention with the four Geneva Conventions on 1949 in the field of
international humanitarian law in terms of its authority as a pronouncement of customary international
law). For a customary rule to emerge the court held that it needed: (1) very widespread and
representative participation in the convention, including States whose interests were specially affected
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
65
(i.e. generality); and (2) virtually uniform practice (i.e. consistent and uniform usage) undertaken in a
manner that demonstrates (3) a general recognition of the rule of law or legal obligation (i.e. opinio
juries). In the North Sea Continental Shelf cases the court held that the passage of a considerable
period of time was unnecessary (i.e. duration) for the formation of a customary law.
Thus, Germany has no legal obligation to accept the equidistance-special circumstances
principle under Article 6 of the Geneva Convention.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
66
The Asylum Case (Colombia v. Peru, 17 ILR 28, ICJ Reports, November 20, 1950)
Facts:
On October 3rd, 1948, a military rebellion broke out in Peru and proceedings were instituted against
Haya de la Torre for the instigation and direction of that rebellion. Three months after the rebellion,
Torre fled to the Colombian Embassy in Lima, Peru.
He was sought out by the Peruvian authorities, but without success; and after asylum had been granted
to the refugee, the Colombian Ambassador in Lima requested a safe-conduct to enable Haya de la
Torre, whom he qualified as a political offender, to leave the country. This was granted in accordance
with Article 2(2) of the Havana Convention on Asylum of 1928. Subsequently, the Ambassador also
stated Colombia had qualified Torre as a political refugee in accordance with Article 2 Montevideo
Convention on Political Asylum of 1933 (note the term refugee is not the same as the Refugee
Convention of 1951).
The Government of Peru refused to accept the unilateral qualification and refused to grant safe
passage, claiming that Haya de la Torre had committed common crimes and was not entitled to enjoy
the benefits of asylum.
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.

Issue/s:

1: Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the
purpose of asylum under treaty law and international law?
2: Is Peru, as the territorial State, bound to give a guarantee of safe passage?
3: Did Colombia violate Article 1 and 2(2) of the Convention on Asylum of 1928 (Havana Convention)
when it granted asylum and is the continued maintenance of asylum a violation of the treaty?

Held:

Colombia was not entitled to qualify unilaterally and in a manner binding upon Peru the nature
of the offence.

It declared that the Government of Peru was not bound to deliver a safe-conduct to the refugee.

The Court rejected by fifteen votes to one the Peruvian contention that Haya de la Torre was accused
of common crimes; the Court noted that the only count against Haya de la Torre was that of military
rebellion and military rebellion was not, in itself, a common crime.
1: 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 offence (for example, as a political

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
67
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.

2: 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 (Columbia) 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

3: Article 1 of the Havana Convention states that “It is not permissible for States to grant asylum… to
persons accused or condemned for common crimes… (such persons) shall be surrendered upon
request of the local government.”
In other words, 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.
Article 2 (2) of the Havana Convention states that “Asylum granted to political offenders in legations,
warships, military camps or military aircraft, shall be respected to the extent in which allowed, as a right
or through humanitarian toleration, by the usages, the conventions or the laws of the country in which
granted and in accordance with the following provisions: First: Asylum may not be granted except in
urgent cases and for the period of time strictly indispensable for the person who has sought asylum to
ensure in some other way his safety.”
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 (pp. 20 -23). The court held:
“In principle, it is inconceivable that the Havana Convention could have intended the term “urgent
cases” to include the danger of regular prosecution to which the citizens of any country lay themselves
open by attacking the institutions of that country… In principle, asylum cannot be opposed to the
operation of justice.”
In other words, 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 population.” (for example during a mob attack where

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
68
the territorial State is unable to protect the offender). Torre was not in such a situation at the time when
he sought refuge in the Colombian Embassy at Lima.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
69
Nuclear Test Cases:
New Zealand v. France (1974)
On 9 May 1973, the Applicant (New Zealand) instituted proceedings against France in respect of French
atmospheric nuclear tests in the South Pacific. Prior to the filing of the application instituting
proceedings in this case, the French Government had carried out atmospheric tests of nuclear devices
at its Centre d’exerimentations du Pacifique in the territory of French Polynesia in 1966-1972. The main
firing site used has been Mururoa atoll, some 2,500 nautical miles from the nearest point of the North
Island of New Zealand and approximately 1,050 nautical miles from the nearest point of the Cook
Islands, a self-governing State linked in free association with New Zealand.
PROCEDURAL ASPECT
To determine jurisdiction of the court, the Applicant relied on the General Act for the Pacific Settlement
of International Disputes concluded at Geneva in 1928 and Articles 36 and 37 of the Statute of the
Court. By a letter of 16 May 1973 France stated that it considered that the Court was manifestly not
competent in the case, that it could not accept its jurisdiction and that it requested the removal of the
case from the Court's list. The court then by an order indicated therein that pending its final decision,
France should avoid nuclear test causing the deposit of radio-active fall-out on the territory of the
Application. The Applicant filed a Memorial and presented argument at public hearings. It submitted
that the Court had jurisdiction and that the Application was admissible. France did not file any Counter-
Memorial and was not represented at the hearings. With regard to France's request for removal in the
court's case list, the court finds that the present case is not one in which the procedure of summary
removal from the list would be appropriate. It is to be regretted that France has failed to appear in order
to put forward its arguments, but the Court nevertheless has to proceed and reach a conclusion, having
regard to the evidence brought before it and the arguments addressed to it by the Applicant, and also
to any documentary or other evidence which might be relevant.
OBJECT OF THE CLAIM
It its Application, New Zealand asks 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
be violated by any further such tests.
If account is taken of the Application as a whole, the diplomatic exchanges between the Parties in
recent years, the arguments of the Applicant before the Court and the public statements made on its
behalf during and after the oral proceedings, it becomes evident that the Applicant's original and
ultimate objective was and has remained to obtain a termination of French atmospheric nuclear tests
in the South Pacific.
In these circumstances, the Court is bound to take note of further developments, both prior to and
subsequent to the close of the oral proceedings, namely certain public statements by French
authorities, of which some were mentioned before the Court at public hearings and others were made
subsequently. The Court considers that these statements convey an announcement by France of its
intention to cease the conduct of atmospheric nuclear tests following the conclusion of the 1974 series.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
70
Thus the Court faces a situation in which the objective of the Applicant has in effect been accomplished,
inasmuch as the Court finds that France has undertaken the obligation to hold no further nuclear tests
in the atmosphere in the South Pacific. The Applicant has sought an assurance from France that the
tests would cease and France, on its own initiative, has made a series of statements to the effect that
they will cease. The Court concludes that France has assumed an obligation as to conduct,
concerning the effective cessation of the tests, and the fact that the Applicant has not exercised
its right to discontinue the proceedings does not prevent the Court from making its own
independent finding on the subject. As a court of law, it is called upon to resolve existing
disputes between States: these disputes must continue to exist at the time when the Court
makes its decision. In the present case, the dispute having disappeared, the claim no longer
has any object and there is nothing on which to give judgment.

Once the Court has found that a State has entered into a commitment concerning its future
conduct, it is not the Court's function to contemplate that it will not comply with it. However, if
the basis of the Judgment were to be affected, the Applicant could request an examination of the
situation in accordance with the provisions of the Statute.

In its judgment, the Court, by 9 votes to 6, has found that the claim of New Zealand no longer
had any object and that the Court was therefore not called upon to give a decision thereon.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
71
Australia v. France (1974)
FACTS: On 21 August 1995, New Zealand filed a "Request for an Examination of the Situation" in
accordance with paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests Case (New Zealand
v. France); it is indicated in the Request that it "arises out of a proposed action announced by France
which will, if carried out, affect the basis of the Judgment rendered by the Court on 20 December 1974
in the Nuclear Tests Case (New Zealand v. France)"; and that "the immediate circumstance giving rise
to the present phase of the Case is a decision announced by France in a media statement of 13 June
1995" by the President of the French Republic, according to which "France would conduct a final series
of eight nuclear weapons tests in the South Pacific starting in September 1995". New Zealand expressly
founds its "Request for an Examination of the Situation" on paragraph 63 of the Judgment of 20
December 1974. At the end of its Request, New Zealand states that the rights for which it seeks
protection all fall within the scope of the rights invoked in paragraph 28 of its Application of 1973, but
that, at the present time, it seeks recognition only of those rights that would be adversely affected by
entry into the marine environment of radioactive material as a result of the further tests to be carried
out at Mururoa or Fangataufa Atolls, and of its entitlement to protection and to the benefit of a properly
conducted Environmental Impact Assessment; within these limits, 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; further or in the alternative;
(ii)that it is unlawful for France to conduct such nuclear tests before it has undertaken an
Environmental Impact Assessment according to accepted international standards. Unless such
an assessment establishes that the tests will not give rise, directly or indirectly, to radioactive
contamination of the marine environment the rights under international law of New Zealand, as
well as the rights of other States, will be violated."

The Court further recalls that on the same day New Zealand filed a request for the following provisional
measures:

"(1) that France refrain from conducting any further nuclear tests at Mururoa and Fangataufa
Atolls;
(2)that France undertake an environmental impact assessment of the proposed nuclear tests
according to accepted international standards and that, unless the assessment establishes that
the tests will not give rise to radioactive contamination of the marine environment, France refrain
from conducting the tests;
(3)that France and New Zealand ensure that no action of any kind is taken which might
aggravate or extend the dispute submitted to the Court or prejudice the rights of the other Party
in respect of the carrying out of whatever decisions the Court may give in this case".

The Court also refers to the submission of Applications for Permission to Intervene by Australia, Samoa,
Solomon Islands, the Marshall Islands and the Federated States of Micronesia, as well as to the
declarations on intervention made by the last four States. It then refers to the presentation, at the
invitation of the President of the Court, of informal aides-m‚moire by New Zealand and France and to
the public sittings held on 11 and 12 September 1995. The Court then summarizes the views expressed
by the two States in the course of the proceedings.

The Court finally observes that New Zealand's "Request for an Examination of the Situation" submitted
under paragraph 63 of the 1974 Judgment, even if it is disputed in limine whether it fulfils the conditions
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
72
set in that paragraph, must nonetheless be the object of entry in the General List of the Court for the
sole purpose of enabling the latter to determine whether those conditions are fulfilled; and that it has
accordingly instructed the Registrar.

ISSUE: Whether or not the requests submitted to the Court by the Government of New Zealand fall
within the provisions of par. 63 of the Judgment of the Court of Dec. 20, 1974 in the case concerning
Nuclear Tests (New Zealand v. France
RULING:

The question has two elements; one concerns the courses of procedure envisaged by the Court in
paragraph 63 of its 1974 Judgment, when it stated that "the Applicant could request an examination of
the situation in accordance with the provisions of the Statute"; the other concerns the question whether
the "basis" of that Judgment has been "affected" within the meaning of paragraph 63 thereof.

The Court observes that in expressly laying down, in paragraph 63 of its Judgment of 20 December
1974, that, in the circumstances set out therein, "the Applicant could request an examination of the
situation in accordance with the provisions of the Statute", the Court cannot have intended to limit the
Applicant's access to legal procedures such as the filing of a new application (Statute, Art. 40, para. 1),
a request for interpretation (Statute, Art. 60) or a request for revision (Statute, Art. 61), which would
have been open to it in any event; 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. The Court points out that such a procedure appears to be indissociably linked, under that
paragraph, to the existence of those circumstances; and that if the circumstances in question do not
arise, that special procedure is not available.

The Court then must determine the second element of the question raised, namely whether the basis
of its Judgment of 20 December 1974 has been affected by the facts to which New Zealand refers and
whether the Court may consequently proceed to examine the situation as contemplated by paragraph
63 of that Judgment. The Court observes that, in 1974, it took as the point of departure of its reasoning
the Application filed by New Zealand in 1973; that in its Judgment of 20 December 1974 it affirmed that
"in the circumstances of the present case, as already mentioned, the Court must ascertain the true
subject of the dispute, the object and purpose of the claim ... In doing so it must take into account not
only the submission, but the Application as a whole, the arguments of the Applicant before the Court,
and other documents referred to ..." (I.C.J. Reports 1974, p. 467, para. 31). Referring, among other
things, to a statement made by the Prime Minister of New Zealand, the Court found that "for purposes
of the Application, the New Zealand claim is to be interpreted as applying only to atmospheric tests,
not to any other form of testing, and as applying only to atmospheric tests so conducted as to give rise
to radio-active fall-out on New Zealand territory" (I.C.J. Reports 1974, p. 466, para. 29). In making, in
1974, this finding and the one in the Nuclear Tests Case (Australia v. France) (for the Court, the two
cases appeared identical as to their subject-matter which concerned exclusively atmospheric tests),
the Court had addressed the question whether New Zealand, when filing its 1973 Application might
have had broader objectives than the cessation of atmospheric nuclear tests - the "primary concern" of
the Government of New Zealand, as it now puts it. The Court concludes that it cannot now reopen this
question since its current task is limited to an analysis of the Judgment of 1974.

The Court recalls that moreover it took note, at that time, of the communiqu‚ issued by the Office of the
President of the French Republic on 8 June 1974, stating that "in view of the stage reached in carrying
out the French nuclear defence programme France will be in a position to pass on to the stage of
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
73
underground explosions as soon as the series of tests planned for this summer is completed" (I.C.J.
Reports 1974, p. 469, para. 35); and to other official declarations of the French authorities on the same
subject, made publicly outside the Court and erga omnes, and expressing the French Government's
intention to put an end to its atmospheric tests; that, comparing the undertaking entered into by France
with the claim asserted by New Zealand, it found that it faced "a situation in which the objective of the
Applicant [had] in effect been accomplished" (I.C.J. Reports 1974, p. 475, para. 55) and accordingly
indicated that "the object of the claim having clearly disappeared, there is nothing on which to give
judgment" (I.C.J. Reports 1974, p. 477, para. 62). The Court concludes that the basis of the 1974
Judgment was consequently France's undertaking not to conduct any further atmospheric nuclear tests;
that it was only, therefore, in the event of a resumption of nuclear tests in the atmosphere that that
basis of the Judgment would have been affected; and that that hypothesis has not materialized.

The Court observes further that in analysing its Judgment of 1974, it reached the conclusion that that
Judgment dealt exclusively with atmospheric nuclear tests; that consequently, it is not possible for the
Court now to take into consideration questions relating to underground nuclear tests; and that 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 - and particularly the conclusion, on 25
November 1986, of the Noumea Convention - any more than of the arguments derived by France from
the conduct of the New Zealand Government since 1974. It finally observes that its Order is without
prejudice to the obligations of States to respect and protect the natural environment, obligations to
which both New Zealand and France have in the present instance reaffirmed their commitment.

The Court therefore finds that the basis of the 1974 Judgment has not been affected; that New
Zealand's Request does not therefore fall within the provisions of paragraph 63 of that Judgment; and
that that Request must consequently be dismissed. It also points out that following its Order, the Court
has instructed the Registrar to remove that Request from the General List as of 22 September 1995.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
74
New Zealand v. France (1995) – Request for examination of the situation on accordance with
par. 63 of the Court’s judgment of the December 20, 1974 in the Nuclear Tests
Topic: "Do the Requests submitted to the Court by the Government of New Zealand on 21 August 1995
fall within the provisions of paragraph 63 of the Judgment of the Court of 20 December 1974 in the
case concerning Nuclear Tests (New Zealand v. France)?"
The Court handed down its decision that New Zealand's Request for an Examination of the Situation
in accordance with Paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests Case (New
Zealand v. France), made on 21 August 1995, "does not fall within the provisions of the said
paragraph 63 and must consequently be dismissed."
Facts:
On 21 August 1995 New Zealand filed a "Request for an Examination of the Situation" in accordance
with paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests Case (New Zealand v. France);
it is indicated in the Request that
- it "aris[es] out of a proposed action announced by France which will, if carried out, affect the
basis of the Judgment rendered by the Court on 20 December 1974 in the Nuclear Tests Case
(New Zealand v. France)"; and
- that "the immediate circumstance giving rise to the present phase of the Case is a decision
announced by France in a media statement of 13 June 1995" by the President of the French
Republic, according to which "France would conduct a final series of eight nuclear weapons tests
in the South Pacific starting in September 1995".
New Zealand expressly founds its "Request for an Examination of the Situation" on paragraph 63 of
the Judgment of 20 December 1974 (cited below). At the end of its Request, New Zealand states that
the rights for which it seeks protection all fall within the scope of the rights invoked in paragraph 28 of
its Application of 1973, but that, at the present time, it seeks recognition only of those rights that would
be adversely affected by entry into the marine environment of radioactive material as a result of the
further tests to be carried out at Mururoa or Fangataufa Atolls, and of its entitlement to protection and
to the benefit of a properly conducted Environmental Impact Assessment; within these limits,
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; further or in the alternative;
(ii) that it is unlawful for France to conduct such nuclear tests before it has undertaken an
Environmental Impact Assessment according to accepted international standards. Unless
such an assessment establishes that the tests will not give rise, directly or indirectly, to
radioactive contamination of the marine environment the rights under international law of
New Zealand, as well as the rights of other States, will be violated." that it is unlawful for
France to conduct such nuclear tests before it has undertaken an Environmental Impact
Assessment according to accepted international standards. Unless such an assessment
establishes that the tests will not give rise, directly or indirectly, to radioactive contamination
of the marine environment the rights under international law of New Zealand, as well as the
rights of other States, will be violated."

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
75
The Court begins by citing paragraph 63 of the Judgment of 20 December 1974, which provides: "Once
the Court has found that a State has entered into a commitment concerning its future conduct it is not
the Court's function to contemplate that it will not comply with it. However, the Court observes 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; the denunciation by France, by letter dated
2 January 1974, of the General Act for the Pacific Settlement of International Disputes, which is relied
on as a basis of jurisdiction in the present case, cannot constitute by itself an obstacle to the
presentation of such a request."

Issue:
"Do the Requests submitted to the Court by the Government of New Zealand on 21 August 1995 fall
within the provisions of paragraph 63 of the Judgment of the Court of 20 December 1974 in the case
concerning Nuclear Tests (New Zealand v. France)?"

Held:
The Court therefore finds that the basis of the 1974 Judgment has not been affected; that
New Zealand's Request does not therefore fall within the provisions of paragraph 63 of that Judgment;
and that that Request must consequently be dismissed. It also points out that following its Order, the
Court has instructed the Registrar to remove that Request from the General List as of 22 September
1995.
Rationale:
The issue has two elements; the 1st element concerns the courses of procedure envisaged by the
Court in paragraph 63 of its 1974 Judgment, when it stated that "the Applicant could request an
examination of the situation in accordance with the provisions of the Statute"; and the 2nd element
concerns the question whether the "basis" of that Judgment has been "affected" within the meaning of
paragraph 63 thereof.
As to the first element of the question before it, the Court recalls that New Zealand expresses the
following view: "paragraph 63 is a mechanism enabling the continuation or the resumption of the
proceedings of 1973 and 1974. They were not fully determined. The Court foresaw that the course of
future events might in justice require that New Zealand should have that opportunity to continue its
case, the progress of which was stopped in 1974. And to this end in paragraph 63 the Court authorized
these derivative proceedings. ... the presentation of a Request for such an examination is to be part of
the same case and not of a new one." New Zealand adds that paragraph 63 could only refer to the
procedure applicable to the examination of the situation once the Request was admitted; it furthermore
explicitly states that it is not seeking an interpretation of the 1974 Judgment under Article 60 of the
Statute, nor a revision of that Judgment under Article 61.

The Court observes that in expressly laying down, in paragraph 63 of its Judgment of
20 December 1974, that, in the circumstances set out therein, "the Applicant could request an
examination of the situation in accordance with the provisions of the Statute", the Court cannot have
intended to limit the Applicant's access to legal procedures such as the filing of a new application
(Statute, Art. 40, para. 1), a request for interpretation (Statute, Art. 60) or a request for revision (Statute,
Art. 61), which would have been open to it in any event; by inserting the above-mentioned words in

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
76
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.

The Court goes on to point out that such a procedure appears to be indissociably linked, under that
paragraph, to the existence of those circumstances; and that if the circumstances in question do not
arise, that special procedure is not available.

The Court then considers that it must determine the second element of the question raised, namely
whether the basis of its Judgment of 20 December 1974 has been affected by the facts to which
New Zealand refers and whether the Court may consequently proceed to examine the situation as
contemplated by paragraph 63 of that Judgment;
to that end, it must first define the basis of that Judgment by an analysis of its text. The Court
observes that, in 1974, it took as the point of departure of its reasoning the Application filed by
New Zealand in 1973; that in its Judgment of 20 December 1974 it affirmed that "in the
circumstances of the present case, as already mentioned, the Court must ascertain the true
subject of the dispute, the object and purpose of the claim ... In doing so it must take into account
not only the submission, but the Application as a whole, the arguments of the Applicant before
the Court, and other documents referred to ..." (I.C.J. Reports 1974, p. 467, para. 31).
Referring, among other things, to a statement made by the Prime Minister of New Zealand, the Court
found that "for purposes of the Application, the New Zealand claim is to be interpreted as applying only
to atmospheric tests, not to any other form of testing, and as applying only to atmospheric tests so
conducted as to give rise to radio-active fall-out on New Zealand territory" (I.C.J. Reports 1974,
p. 466, para. 29). In making, in 1974, this finding and the one in the Nuclear Tests Case
(Australia v. France) (for the Court, the two cases appeared identical as to their subject-matter which
concerned exclusively atmospheric tests), the Court had addressed the question whether New Zealand,
when filing its 1973 Application might have had broader objectives than the cessation of atmospheric
nuclear tests - the "primary concern" of the Government of New Zealand, as it now puts it. The Court
concludes that it cannot now reopen this question since its current task is limited to an analysis of the
Judgment of 1974.
The Court observes further that in analysing its Judgment of 1974, it reached the conclusion that that
Judgment dealt exclusively with atmospheric nuclear tests; that consequently, it is not possible for the
Court now to take into consideration questions relating to underground nuclear tests; and that 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 - and particularly the conclusion, on
25 November 1986, of the Noumea Convention - any more than of the arguments derived by France
from the conduct of the New Zealand Government since 1974. It finally observes that its Order is without
prejudice to the obligations of States to respect and protect the natural environment, obligations to
which both New Zealand and France have in the present instance reaffirmed their commitment.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
77
Legality of the Use by a State of Nuclear Weapons in Armed Conflict, (Advisory Opinion), ICJ
Reports, July 8,1996
DOCTRINE:

The Court observes that, in view of the unique characteristics of nuclear weapons, to which the Court
has referred above, the use of such weapons in fact seems scarcely reconcilable with respect for the
requirements of the law applicable in armed conflict. It considers nevertheless, that it does not have
sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would
necessarily be at variance with the principles and rules of law applicable in armed conflict in any
circumstance. Furthermore, the Court cannot lose sight of the fundamental right of every State to
survival, and thus its right to resort to self-defence, in accordance with Article 51 of the Charter, when
its survival is at stake. Nor can it ignore the practice referred to as "policy of deterrence", to which an
appreciable section of the international community adhered for many years.

FACTS:

On August 1993 the Director-General of the World Health Organization officially submitted a question
for an advisory opinion to the ICJ on behalf of the World Health Assembly. This request questioned “the
Legality of the Use by a State of Nuclear Weapons in Armed Conflict.

ISSUE/S:

4. WON the court have jurisdiction over the case/question


5. WON the question posed is a legal question
6. WHAT laws are applicable to the given question

HELD:

1. Jurisdiction of the Court

The Court has jurisdiction. The Court observes that it draws its competence in respect of advisory
opinions from Article 65, paragraph 1, of its Statute, while Article 96, paragraph 1 of the Charter
provides that:

"The General Assembly or the Security Council may request the International Court of Justice to give
an advisory opinion on any legal question.”

2. Legal Question

It finds that the question put to the Court by the General Assembly is indeed a legal one, since the
Court is asked to rule on the compatibility of the threat or use of nuclear weapons with the relevant
principles and rules of international law. To do this, the Court must identify the existing principles and
rules, interpret them and apply them to the threat or use of nuclear weapons, thus offering a reply to
the question posed based on law.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
78
The fact that this question also has political aspects, as, in the nature of things, is the case with so
many questions which arise in international life, does not suffice to deprive it of its character as a "legal
question" and to "deprive the Court of a competence expressly conferred on it by its Statute". Nor are
the political nature of the motives which may be said to have inspired the request or the political
implications that the opinion given might have of relevance in the establishment of the Court's
jurisdiction to give such an opinion.

3. Applicable Laws

In determining the legality or illegality of the threat or external use of nuclear weapons, the ICJ decided
that the most directly relevant applicable law governing the Assembly's question consisted of (1) the
provisions of the UN Charter relating to the threat or use of force, (2) any relevant specific treaties on
nuclear weapons, and (3) the principles and rules of international humanitarian law that form part of the
law applicable in armed conflict and the law of neutrality. In applying this law, the Court considered it
imperative to take into account certain unique characteristics of nuclear weapons, in particular their
destructive capacity that can cause untold human suffering for generations to come.

the provisions of the UN Charter relating to the threat or use of force

The Court first considered the provisions of the UN Charter relating to the threat or use of force.
Although Article 2(4) (generally prohibiting the threat or use of force), Article 51 (recognizing every
state's inherent right of individual or collective self-defense if an armed attack occurs) and Article 42
(authorizing the Security Council to take military enforcement measures) do not refer to specific
weapons, the Court held that they apply to any use of force, regardless of the type of weapon employed.
The Court noted that the UN Charter neither expressly prohibits, nor permits, the use of any specific
weapon (including nuclear weapons) and that a weapon that is already unlawful per se by treaty or
custom does not become lawful by reason of its being used for a legitimate purpose under the Charter.
Whatever the means of force used in self-defense, the dual customary condition of necessity and
proportionality and the law applicable in armed conflict apply, including such further considerations as
the very nature of nuclear weapons and the profound risks associated with their use.

Any relevant specific treaties on nuclear weapons

The Court then examined customary international law. First, it determined that the non-use of nuclear
weapons does not amount to a customary prohibition, because the world community is profoundly
divided on the issue. Second, the Court examined whether certain General Assembly resolutions that
deal with nuclear weapons signify the existence of a rule of customary international law prohibiting
recourse to nuclear weapons. In the Court's view, although these resolutions are "a clear sign of deep
concern regarding the problem of nuclear weapons" and "reveal the desire of a very large section of
the international community to take, by a specific and express prohibition of the use of nuclear weapons,
a significant step forward along the road to complete nuclear disarmament," they fall short of a
customary rule specifically prohibiting the use of nuclear weapons as such.

The Court notes by way of introduction that international customary and treaty law does not contain
any specific prescription authorizing the threat or use of nuclear weapons or any other weapon in
general or in certain circumstances, in particular those of the exercise of legitimate self-defence. Nor,
however, is there any principle or rule of international law which would make the legality of the threat
or use of nuclear weapons or of any other weapons dependent on a specific authorization. State

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
79
practice shows that the illegality of the use of certain weapons as such does not result from an absence
of authorization but, on the contrary, is formulated in terms of prohibition.

The principles and rules of international humanitarian law that form part of the law applicable in armed
conflict and the law of neutrality

Not having found a conventional rule of general scope, nor a customary rule specifically proscribing the
threat or use of nuclear weapons per se, the Court then deals with the question whether recourse to
nuclear weapons must 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.

After sketching the historical development of the body of rules which originally were called "laws and
customs of war"and later came to be termed "international humanitarian law", the Court observes that
the cardinal principles contained in the texts constituting the fabric of humanitarian law are the following.
The first is aimed at the protection of the civilian population and civilian objects and establishes 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. According to the second principle, it is prohibited to cause unnecessary suffering
to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly
aggravating their suffering. In application of that second principle, States do not have unlimited freedom
of choice of means in the weapons they use.

Turning to the applicability of the principles and rules of humanitarian law to a possible threat or use of
nuclear weapons, the Court notes that nuclear weapons were invented after most of the principles and
rules of humanitarian law applicable in armed conflict had already come into existence; the Conferences
of 1949 and 1974-1977 left these weapons aside, and there is a qualitative as well as quantitative
difference between nuclear weapons and all conventional arms. However, in the Court's view, it cannot
be concluded from this that the established principles and rules of humanitarian law applicable in armed
conflict did not apply to nuclear weapons. Such a conclusion would be incompatible with the intrinsically
humanitarian character of the legal principles in question which permeates the entire law of armed
conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the
present and those of the future. In this respect it seems significant that the thesis that the rules of
humanitarian law do not apply to the new weaponry, because of the newness of the latter, has not been
advocated in the present proceedings.

The Court finds that as in the case of the principles of humanitarian law applicable in armed conflict,
international law leaves no doubt that the principle of neutrality, whatever its content, which is of a
fundamental character similar to that of the humanitarian principles and rules, is applicable (subject to
the relevant provisions of the United Nations Charter), to all international armed conflict, whatever type
of weapons might be used.

CONCLUSION/HELD:

Despite the undisputed applicability of the principles and rules of humanitarian law and of the law of
neutrality to nuclear weapons, the ICJ found that the conclusions to be drawn from this applicability
were controversial. The Court admitted that, in view of the unique characteristics of nuclear weapons,
their use "in fact seems scarcely reconcilable" with the strict requirements dictated by the law applicable
in armed conflict. The judges being evenly divided, ICJ President Mohammed Bedjaoui used his casting
vote to hold that the threat or use of nuclear weapons would generally be contrary to the rules of
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
80
international law applicable in armed conflict. At the same time, the ICJ held that it did not have a
sufficient basis for a definitive conclusion as to whether the use of nuclear weapons would or would not
be at variance with the principles and rules of law applicable in armed conflict in an extreme
circumstance of self-defense, in which a state's very survival is at stake.

Finally, the Court examined the obligation to negotiate in good faith a complete nuclear disarmament,
recognized in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of 1968. The ICJ
judges held unanimously that the obligation enshrined in Article VI involves "an obligation to achieve a
precise result-nuclear disarmament in all its aspects-by adopting a particular course of conduct,
namely, the pursuit of negotiations on the matter in good faith." The Court noted that this twofold
obligation to pursue and conclude negotiations in accordance with the basic principle of good faith
formally concerns the 182 states parties to the Treaty on the Non-Proliferation of Nuclear Weapons,
constituting the vast majority of the international community.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
81
The Paquete Habana, 175 US 677 (1900)
Facts:
At the breaking out of the recent war with Spain, two fishing smacks, The Paquete Habana and The
Lola, were regularly engaged in fishing on the coast of Cuba, sailing under the Spanish flag, and each
owned by a Spanish subject, residing in Havana; her crew, who also resided there. Each vessel left
Havana on a coast fishing voyage, and sailed along the coast of Cuba about two hundred miles to the
west end of the island; the sloop there fished for twenty-five days in the territorial waters of Spain, and
the schooner extended her fishing trip a hundred miles farther across the Yucatan Channel, and fished
for eight days on the coast of Yucatan.
On her return, with her cargo of live fish, along the coast of Cuba, and when near Havana, each was
captured by one of the United States blockading squadron. Neither fishing vessel had any arms or
ammunition on board, had any knowledge of the blockade, or even of the war, until she was stopped
by a blockading vessel, made any attempt to run the blockade, or any resistance at the time of her
capture, nor was there any evidence that she, or her crew, was likely to aid the enemy.
Both the fishing vessels were brought by their captors into Key West. A libel for the condemnation of
each vessel and her cargo as prize of war was there filed on April 27, 1898; a claim was interposed by
her master on behalf of himself and the other members of the crew, and of her owner
Each vessel was thereupon sold by auction; the Paquete Habana for the sum of $490 and the Lola for
the sum of $800. There was no other evidence in the record of the value of either vessel or of her cargo.
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?
Held:
Yes. The vessels of fishermen have been generally declared exempt from confiscation because of the
eminently peaceful object of their humble industry and of the principles of equity and humanity. The
exemption includes the vessel, the implements of fishing, and the cargo resulting from the fishery. This
usage, eminently humane, goes back to very ancient times, and although the immunity of the fishery
along the coasts may not have been sanctioned by treaties, yet it is considered today as so definitely
established that the inviolability of vessels devoted to that fishery is proclaimed by the publicists as a
positive rule of international law, and is generally respected by the nations.
At the present day, by the general consent of the civilized nations of the world, and independently of
any express treaty or other public act, it is an established rule of international law, founded on
considerations of humanity to a poor and industrious order of men, and of the mutual convenience of
belligerent states, that coast fishing vessels, with their implements and supplies, cargoes and crews,
unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt
from capture as prize of war.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
82
The exemption, of course, does not apply to coast fishermen or their vessels if employed for a warlike
purpose, or in such a way as to give aid or information to the enemy, nor when military or naval
operations create a necessity to which all private interests must give way.
Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales
or seals or cod or other fish which are not brought fresh to market, but are salted or otherwise cured
and made a regular article of commerce.
This rule of international law is one which prize courts administering the law of nations are bound to
take judicial notice
In case at bar, each vessel was of a moderate size, such as is not unusual in coast fishing smacks,
and was regularly engaged in fishing on the coast of Cuba. The crew of each were few in number, had
no interest in the vessel, and received, in return for their toil and enterprise, two-thirds of her catch, the
other third going to her owner by way of compensation for her use. Each vessel went out from Havana
to her fishing ground and was captured when returning along the coast of Cuba. The cargo of each
consisted of fresh fish, caught by her crew from the sea and kept alive on board. Although one of the
vessels extended her fishing trip across the Yucatan channel and fished on the coast of Yucatan, we
cannot doubt that each was engaged in the coast fishery, and not in a commercial adventure, within
the rule of international law.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
83
Portugal v. India, ICJ Reports, April 12,1960 (Case concerning the Right of Passage over
Indian Territory
Facts:
The Government of Portugal stated that its territory in the Indian Peninsula included two enclaves
surrounded by the Territory of India, Dadra and Nagar-Aveli. It was in respect of the communications
between those enclaves and the coastal district of Daman, and between each other, that the question
arose of a right of passage in favour of Portugal through Indian territory and of a correlative obligation
binding upon India. The Application stated that in July 1954 the Government of India prevented Portugal
from exercising that right of passage and that Portugal was thus placed in a position in which it became
impossible for it to exercise its rights of sovereignty over the enclaves
India contention:
India had contended in the first place that the right of passage claimed by Portugal was too
vague and contradictory to enable the Court to pass judgment upon it by the application of the legal
rules enumerated in Article 38 (1) of the Statute. There was no doubt that the day-to-day exercise of
the right might give rise to delicate questions of application but that was not, in the view of the Court,
sufficient ground for holding that the right was not susceptible of judicial determination.
Portugal contention:
Portugal had relied on the Treaty of Poona of 1779 and on sanads (decrees) issued by the
Maratha ruler in 1783 and 1785, as having conferred on Portugal sovereignty over the enclaves with
the right of passage to them; India had objected that what was alleged to be the Treaty of 1779 was
not validly entered into and never became in law a treaty binding upon the Marathas. The Court,
however, found that the Marathas did not at any time cast any doubt upon the validity or binding
character of the Treaty. India had further contended that the Treaty and the two sanads did not operate
to transfer sovereignty over the assigned villages to Portugal but only conferred, with respect to the
villages, a revenue grant. The Court was unable to conclude from an examination of the various texts
of the Treaty of 1779 that the language employed therein was intended to transfer sovereignty; the
expressions used in the two sanads, on the other hand, established that what was granted to the
Portuguese was only a revenue tenure called a jagir or saranjam, and not a single instance had been
brought to the notice of the Court in which such a grant had been construed as amounting to a cession
of sovereignty. There could, therefore, be no question of any enclave or of any right of passage for the
purpose of exercising sovereignty over enclaves.
Courts additional findings:
The Court found that the situation underwent a change with the advent of the British as sovereign
of that part of the country in place of the Marathas: Portuguese sovereignty over the villages had been
recognized by the British in fact and by implication and had subsequently been tacitly recognized by
India. As a consequence the villages had acquired the character of Portuguese enclaves within Indian
territory and there had developed between the Portuguese and the territorial sovereign with regard to
passage to the enclaves a practice upon which Portugal relied for the purpose of establishing the right
of passage claimed by it. It had been objected on behalf of India that no local custom could be
established between only two States, but the Court found it difficult to see why the number of States

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
84
between which a local custom might be established on the basis of long practice must necessarily be
larger than two.
Issue: Whether or not Portugal has the right of passage over the two enclaves over the territory of
India?
Held:
Yes. Having found that Portugal had, in 1954, a right of passage in respect of private persons,
civil officials and goods in general, the Court lastly proceeded to consider whether India had acted
contrary to its obligation resulting from Portugal's right of passage in respect of any of these categories.
Portugal had not contended that India had acted contrary to that obligation before July 1954, but it
complained that passage was thereafter denied to Portuguese nationals of European origin, to native
Indian Portuguese in the employ of the Portuguese Government and to a delegation that the Governor
of Daman proposed, in July 1954, to send to Nagar-Aveli and Dadra. The Court found that the events
which had occurred in Dadra on 21-22 July 1954 and which had resulted in the overthrow of Portuguese
authority in that enclave had created tension in the surrounding Indian district, having regard to that
tension, the Court was of the view that India's refusal of passage was covered by its power of regulation
and control of the right of passage of Portugal.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
85
Texaco v. Libya, 53 ILR, 1977
DOCTRINE: Whenever reference is been made to general principles of law in the international
arbitration context, it is always held to be a sufficient criterion for the internationalization of a contract.
FACTS: On September 1, 1973 and February 11, 1974, Libya (defendant) issued decrees nationalizing
all of the rights, interests, and property of the Texaco Overseas Petroleum Company (TOPCO) and
California Asiatic Oil Company (CAOC) in Libya that had been granted to them jointly by the Libyan
government under 14 deeds of concession. TOPCO and CAOC requested arbitration and appointed
an arbitrator. However, Libya refused to submit to arbitration and did not appoint an arbitrator. The 14
deeds of concession provided by Libya to the two companies permitted the President of the
International Court of Justice (ICJ) to appoint a sole arbitrator to hear and determine the disputes. The
Libyan government opposed this practice and argued that the disputes were not subject to arbitration
because they involved sovereign acts by Libya. The President of the ICJ rejected these arguments and
appointed Professor Rene-Jean Dupuy as the sole arbitrator. The Libyan government refused to
participate in the subsequent arbitration proceedings. On January 19, 1977, Professor Dupuy issued
an award on the merits in favor of TOPCO and CAOC. He held that the deeds of concession were
binding on all parties, that the Libyan government breached its obligations under the deeds of
concession, and that the Libyan government was legally bound to perform the deeds of concession
according to their terms. The deeds of concession contained a provision stating that the concession
would be governed by principles of Libyan law common to principles of international law, and that in
the absence of such common principles, then they would be governed by and in accordance with the
general principles of law, including those which have been applied by international tribunals. The
arbitrator concluded that the nature of the deeds of concession agreement made it an internationalized
contract. He then considered the effect and consequences of an internationalized contract on the rights
of the parties.

ISSUE: Whenever reference is being made to general principles of law in the International arbitration
context, can this be held to be a sufficient criterion for the internationalization of a contract?

HELD: Yes. Whenever reference is been made to general principles of law in the international
arbitration context, it is always held to be a sufficient criterion for the internationalization of a contract.
The lack of adequate law in the state considered and the need to protect the private contracting party
against unilateral and abrupt modifications of law in the contracting state is a justification to the recourse
to general principles. Though international law involves subjects of a diversified nature, legal
international capacity is not solely attributable to a state. A private contracting party, unlike a state, has
only a limited capacity and is limited to invoke only those rights that he derives from his contract.
Applying Libyan law or international law in the arbitration proceedings was a conflict encountered by in
this case. Though the contract itself deferred to Libyan law, the court noted that Libyan law does not
preclude the application of international law, but that the two must be combined in order to verify that
Libyan law complies with international law. Even though the right of a state to nationalize is recognized
by international law, this right in itself is not a sufficient justification not to regard its contractual
obligations.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
86
GENERAL PRINCIPLES:
Cambodia v. Thailand, ICJ Reports, 1962
Case Concerning the Temple of Preah Vihear; June 15, 1962
Facts: The ancient Temple of Preah Vihear stood on a promontory of the Dangrek range of mountains
which constituted the boundary between Cambodia and Thailand. The dispute had its fons et origo in
the boundary settlements made in the period 1904-1908 between France, then conducting the foreign
relations of Indo-China, and Siam. That Treaty of 13 February 1904 established the general character
of the frontier the exact boundary of which was to be delimited by a Franco-Siamese Mixed
Commission.
In the eastern sector of the Dangrek range, in which Preah Vihear was situated, the frontier was
to follow the watershed line. For the purpose of delimiting that frontier, it was agreed, at a meeting held
on 2 December 1906, that the Mixed Commission should travel along the Dangrek range carrying out
all the necessary reconnaissance, and that a survey officer of the French section of the Commission
should survey the whole of the eastern part of the range.
The final stage of the delimitation was the preparation of maps. The Siamese Government, which
did not dispose of adequate technical means, had requested that French officers should map the
frontier region. These maps were completed in the autumn of 1907 by a team of French officers, some
of whom had been members of the Mixed Commission, and they were communicated to the Siamese
Government in 1908. Amongst them was a map of the Dangrek range showing Preah Vihear on the
Cambodian side. It was on that map (Annex I) that Cambodia had principally relied in support of her
claim to sovereignty over the Temple. Thailand, on the other hand, had contended that the map, not
being the work of the Mixed Commission, had no binding character; that the frontier indicated on it was
not the true watershed line and that the true watershed line would place the Temple in Thailand, that
the map had never been accepted by Thailand or, alternatively, that if Thailand had accepted it she
had done so only because of a mistaken belief that the frontier indicated corresponded with the
watershed line.
Proceedings in the case concerning the Temple of Preah Vihear, between Cambodia and
Thailand, were instituted on 6 October 1959 by an Application of the Government of Cambodia; the
Government of Thailand having raised two preliminary objections, the International Court of Justice,
by its Judgment of 26 May 1961, found that it had jurisdiction.
In its Judgment on the merits the Court, by nine votes to three, found that the Temple of Preah
Vihear was situated in territory under the sovereignty of Cambodia and, in consequence, that Thailand
was under an obligation to withdraw any military or police forces, or other guards or keepers, stationed
by her at the Temple, or in its vicinity on Cambodian territory. By seven votes to five, the Court found
that Thailand was under an obligation to restore to Cambodia any sculptures, stelae, fragments of
monuments, sandstone model and ancient pottery which might, since the date of the occupation of the
Temple by Thailand in 1954, have been removed from the Temple or the Temple area by the Thai
authorities.
Issue: Whether or not Cambodia has the sovereignty over the Temple of Preah Vihear.
Held: Yes. From the facts, the court concluded that Thailand had accepted the Annex I map. Even if
there were any doubt in this connection, Thailand was not precluded from asserting that she had not
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
87
accepted it since France and Cambodia had relied upon her acceptance and she had for fifty years
enjoyed such benefits as the Treaty of 1904 has conferred on her. Furthermore, the acceptance of the
Annex I map caused it to enter the treaty settlement; the Parties had at that time adopted an
interpretation of that settlement which caused the map line to prevail over the provisions of the Treaty
and, as there was no reason to think that the Parties had attached any special importance to the line
of the watershed as such, as compared with the overriding importance of a final regulation of their own
frontiers, the Court considered that the interpretation to be given now would be the same.
The Annex I map was never formally approved by the Mixed Commission, which had ceased to function
some months before its production. While there could be no reasonable doubt that it was based on the
work of the surveying officers in the Dangrek sector, the Court nevertheless concluded that, in its
inception, it had no binding character. It was clear from the record, however, that the maps were
communicated to the Siamese Government as purporting to represent the outcome of the work of
delimitation; since there was no reaction on the part of the Siamese authorities, either then or for
many years, they must be held to have acquiesced. If the Siamese authorities accepted the map
without investigation, they could not now plead any error vitiating the reality of their consent.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
88
Corfu Channel Case, ICJ Reports, April 9,1949 – UK v. Albania
Facts:
On October 22nd, 1946, two British cruisers and two destroyers, coming from the south, entered the
North Corfu Strait. The channel they were following, which was in Albanian waters, was regarded as
safe: it had been swept in 1944 and check-swept in 1945. One of the destroyers, the Saumarez, when
off Saranda, struck a mine and was gravely damaged. The other destroyer, the Volage, was sent to her
assistance and, while towing her, struck another mine and was also seriously damaged. Forty-five
British officers and sailors lost their lives, and forty-two others were wounded.

Following this incident, the United Kingdom (plaintiff) and Albania (defendant) entered into diplomatic
discussions about the right of British ships to pass peacefully through Albanian waters. Albania
maintained that the ships should not pass through without providing prior notification to the Albanian
government. However, the United Kingdom maintained it had a right under international law to
innocently pass through the straits. Between May 15, 1946 and October 22, 1946, the Albanian
government allegedly placed mines in the Corfu Channel in Albanian territorial waters. Albania was at
war with Greece, and the mines were allegedly part of its defense. On October 22nd, British warships
attempted to again pass through the straits, but were destroyed by the mines, with loss of human life.
The United Kingdom brought suit in the International Court of Justice (ICJ) on the ground that Albania
had a duty to warn the approaching British ships of the mines. It sought damages from Albania.
However, Albania argued that its territorial rights had previously been violated by the British ships
passing through its straits on May 15, 1946, and that it was entitled to a satisfaction.

Issue: WON Albania should be held responsible for the damages

Held: YES. In its Judgment the Court declared on the first question, by 11 votes against 5 that Albania
was responsible.
In the present case both evidence of the Albanian Government’s attitude (its intention to keep a close
watch on its territorial waters, its protest against the passage of the British fleet but not the laying of
mines, its failure to notify shipping of the existence of mines) and the fact that mine-laying would have
been visible to a normal lookout on the Albanian coast, lead the Court to conclude that the laying of the
minefield could not have been accomplished without the knowledge of Albania. The Court then
considers Albania’s obligations in light of this knowledge: The obligations resulting for Albania from this
knowledge are not disputed between the Parties. Counsel for the Albanian Government expressly
recognized that [translation] “if Albania had been informed of the operation before the incidents of
October 22nd, and in time to warn the British vessels and shipping in general of the existence of mines
in the Corfu Channel, her responsibility would be involved.. . .".

The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of
shipping in general, the existence of a minefield in Albanian territorial waters and in warning the
approaching British warships of the imminent danger to which the minefield exposed them. Such
obligations are based, not on the Hague Convention of 1907, No. VTII, which is applicable in time of
war, but on certain general and well-recognized principles, namely: elementary considerations of
humanity, even more exacting in peace than in war ; the principle of the freedom of maritime
communication ; and every State's obligation not to allow knowingly its territory to be used for acts
contrary to the rights of other States.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
89
In fact, Albania neither notified the existence of the minefield, nor warned the British warships of the
danger they were approaching.

Chorzow Factory Case (1928)


DOCTRINE:

(1) The reparation of a wrong may consist in an indemnity corresponding to the damages with
nationals of the injured party state have suffered as a result of the act which is contrary to
international law.
(2) Reparation for the taking of property requires compensation. Reparation is due when there is a
breach of an obligation.

FACTS:

On March 5th, 1915, a contract was concluded between the Chancellor of the German Empire, on
behalf of the Reich, and the Bayerische Stickstoffwerke A.-G. of Trostberg, Upper Bavaria, by which
contract this Company undertook "to establish for the Reich and to begin forthwith the construction of",
amongst other things, a nitrate factory at Chorzow in Upper Silesia. The necessary lands were to be
acquired on behalf of the Reich and entered in its name in the land register. The machinery and
equipment were to be in accordance with the patents and licenses of the Company and the experience
gained by it, and the Company undertook to manage the factory until March 1, 1941, making use of all
patents, licenses, experience gained, innovations and improvements, as also of all supply and delivery
contracts of which it had the benefit. For this purpose a special section of the Company was to be
formed, which was, to a certain extent, to be subject to the supervision of the Reich which had the right
to a share of the surplus resulting from the working of the factory during each financial year. The Reich
had the right, commencing on March 1, 1926, to terminate the contract for the management of the
factory by the Company on March 31st of any year upon giving fifteen month's notice. The contract
could be terminated as early as March 31, 1921, always on condition of fifteen month's notice being
given, if the Reich's share of the surplus did not reach a fixed level.

On December 24, 1919, a series of legal instruments were signed and legalized at Berlin with a view
to the formation of a new Company, the Oberschlesische Stickstoffwerke A.-G., and the sale by the
Reich to that Company of the factory at Chorzow, that is to say, the whole of the land, buildings and
installations belonging thereto, with all accessories, reserves, raw material, equipment and stocks. The
management and working were to remain in the hands of the Bayerische Stickstoffwerke Company,
which, for this purpose, was to utilize its patents, licenses, experience gained and contracts. These
relations between the two Companies were confirmed by means of letters dated December 24th and
28th, 1919, exchanged between them. The Oberschlesische Stickstoffwerke Company was duly
entered on January 29, 1920, at the Amtsgericht of Konigshütte, in the Chorzow land register, as owner
of the landed property constituting the nitrate factory of Chorzow.

On July 1, 1922, this Court, which had become Polish, gave a decision to the effect that the registration
in question was null and void and was to be cancelled, the pre-existing position being restored, and
that the property rights of the lands in question were to be registered in the name of the Polish Treasury.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
90
On July 3, 1922, M. Ignatz Moscicki, who was delegated with full powers to take charge of the factory
at Chorzow by a Polish ministerial decre, took possession of the factory and took over the management
in accordance with the terms of the decree. The German Government contends and the Polish
Government admits that the said delegate, in undertaking the control of the working of the factory, at
the same time took possession of the movable property, patents, licenses, etc. On November 10, 1922,
the Oberschlesische Stickstoffwerke Company brought an action before the Germano-Polish Mixed
Arbitral Tribunal at Paris. It called upon that Court "to allow the claim submitted by the Oberschlesische
Stickstoffwerke Aktiengesellschaft, and to order the Polish Government, the Respondent in the suit, to
restore the factory, to make any other reparation which the Court may see fit to fix and to pay the costs
of the action”.

In regard to this suit, the German Government stated in its "Observations" filed on July 9th, 1925, that
the application made to the Court of Katovice was mainly intended to serve as a basis for claiming,
under Article 588 of the Geneva Convention, the reference of the suit to the Upper Silesian Arbitral
Tribunal, but that the Court rejected this claim.

Article 297 of the Versailles Treaty relates to the liquidation by the Allied and Associated Powers of
property, rights and interests belonging at the date of the coming into force of the Treaty to German
nationals, or companies controlled by them, within the territories, colonies, possessions and
protectorates of such Powers, including territories ceded to them by the Treaty, and, while stipulating
that the liquidation shall be carried out in accordance with the laws of the Allied or Associated State
concerned, Article 297 lays down certain rules, which connect the subject with that of reparations.

Article 92 of the Treaty of Versailles, however, in accordance with Article 297 of that Treaty, expressly
provides that the property, rights and interests of German nationals shall not be liquidated under Article
297 by the Polish Government, except on condition (1) that the proceeds of the liquidation shall be paid
direct to the owner, and (2) that if, on the owner's application, the Mixed Arbitral Tribunal . . . or an
arbitrator appointed by it, is satisfied that the conditions of the sale or measures taken by the Polish
Government outside its general legislation were unfairly prejudicial to the price obtained, they shall
have discretion to award to the owner equitable compensation to be paid by the Polish Government.

Poland, in answer to the German Application, asked the Court to hold either (1) that it had no jurisdiction
of the suit, or (2) that the Application could not be entertained until the German-Polish Mixed Arbitral
Tribunal, at Paris, had given judgment. Without repeating provisions of the Statute relating to the
jurisdiction of the Court, it suffices to say that the Court's jurisdiction was, in the present instance,
invoked upon the stipulations of Article 23 of the Geneva Convention.

On the objection taken by Poland to the Court's jurisdiction, the Court, in its Judgment No. 6, held:
(1) That the Court's jurisdiction under Article 23 was not affected by the fact that the rights claimed were
contested on the strength of provisions of other treaties as well as on those of Articles 6 to 22 of the
Geneva Convention.
(2) That the suits pending before the German-Polish Mixed Arbitral Tribunal at Paris and the Civil Court
at Katovice, did not prevent the Court from exercising its jurisdiction under Article 23.
(3) That the plea to the jurisdiction should be dismissed.

After the delivery by the Court of Judgment No. 6, the German Government amended the submissions
made in its Application, the Court was asked to give judgment:
(1) That the application of the Polish law of July 9th, 1920, in Polish Upper Silesia, decreed by the law
of June 16, 1922, constituted a measure of liquidation within the meaning of Article 6 and the
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
91
following articles of the Geneva Convention, and that, as it did not conform to those articles, any
more than to Articles 92 and 297 of the Versailles Treaty, to which the Convention expressly
referred, such application was illegal.
(2) That the attitude of the Polish Government towards the Oberschlesische and the Bayerische was
not in conformity with the above-mentioned articles of the Geneva Convention, and, should this be
held to be so, that the Court would state what attitude would have been in conformity with them.

In reply, the Polish Government asked the Court:


(1) To non-suit the Applicant as regarded submission No. 1.
(2) To find that it was not necessary to decide as to the conformity or non-conformity of the attitude of
the Polish Government with Article 6 and the following articles of the Geneva Convention, since no
measure of liquidation had been taken by that Government.

Issue being thus joined, the Court, at its tenth session, heard the case on the merits, and rendered
judgment. In this judgment-No. 7, the provisions of the Polish law of July 14, 1920, are analyzed and
set forth in detail. The subject matter of this law is the "transfer of the rights of the German Treasury
and of members of reigning German houses to the Treasury of the State of Poland".
The Court held:
(1) That Articles 2 and 5 were incompatible with the provisions of the Geneva Convention, and that
Poland had invoked no title of international law which would permit Articles 2 and 5 of the law of
July 14th to be regarded as constituting the exercise of a right overcoming the obligations ensuing
from Head III of the Geneva Convention;
(2) That, in the transfer of the factory to the Oberschlesische, there was no misuse by Germany of the
right of alienation of property in the plebiscite area; that the alienation was a genuine transaction
effected in good faith and was not designed to be detrimental to Poland's rights and that the
Oberschlesische’s right of ownership must be regarded as established, and could have been
disputed only before a competent tribunal;
(3) That the property and operating rights claimed by the Bayerische were also valid, and had been
violated by Poland’s action;
(4) That expropriation without compensation was contrary to Head III of the Geneva Convention; and
that the application of the law of July 9, 1920, was contrary to Article 6 and subsequent articles of
the Geneva Convention, and that the Court had express and definite jurisdiction of the subject
matter by Article 23 of that Convention.

In conclusion, the Court held:


(1) That the application of Articles 2 and 5 of the law of July 14th, 1920, decreed by the law of June
16th, 1922, constituted, as to German nationals or companies controlled by them, within Part 1,
Head III, of the Geneva Convention, an infraction of Article 6 and the following articles of that
Convention;
(2) That the attitude of the Polish Government toward both Companies was not in conformity with those
articles, but that the Court was not called upon to state what attitude would have been in conformity
with them. It was on the basis of this decision of the Court that negotiations were undertaken by the
two Governments for an amicable settlement of the claims of both Companies by the payment of
pecuniary damages.

Following upon the judgment of May 29th, 1926, the German Government, on June 25th of the same
year, sent to the Polish Government a note in which it requested that Government "to take the steps
necessary to establish a situation conforming to the judgment both in fact and in law". These steps
should, in the view of the German Government, comprise three different features:
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
92
(1) the re-entry in the land registers of the Court of Konigshütte of the Oberschlesische as owners of
the real estate constituting the Chorzow factory;
(2) the restoration of the factory as an industrial enterprise to the Bayerische;
(3) the payment to these two Companies of an indemnity, the amount of which to be fixed by direct
negotiations between the two Governments.

ISSUES:

(1) Whether the court has jurisdiction over the matter or not

(2) Whether there was any violation of the agreement between Germany and Poland

(3) Whether there was any international obligation on Poland due to the breach bipartite agreement
between Germany and Poland

RULING:

(1) The Permanent Court of International Justice (PCIJ) has its jurisdiction to try the case.

The rule of PCIJ was very appropriate, which was given in favor of Germany as the attitude of Polish
Government towards two German companies was not in conformity with the articles of Convention
concerning Upper Silesia, concluded at Geneva on May 15, 1922, thus violating the international
agreement by unlawful expropriation of the said companies and that infers the state responsibility
on Poland for reparation for such violation.

(2) Poland had violated the international agreement between Germany and Poland.

It is general principal of International Law that every violation of an engagement involves an


obligation to make reparation adopted form municipal law, which is applied in this case along with
the principal of state responsibility as a state is considered as an individual entity when come to an
international dispute and it was accepted by all, repetition of which confirms that the decision is
conform to existing law. A recent initiative of International Law Commission at its fifty-third session,
in 2001 gave the state responsibility a more precise scope for the application of the principal state
responsibility. Observation of similar cases undertook by Permanent Court of International Justice.
If compared with the reasoning with this case would be quite new to that time, therefore it is highly
unlikely that any consistent previous reasoning could be found in similar cases. But the decision has
already been significantly influenced the jurisprudence of International law and its impact can be
seen in various cases such i.e. Genocide Convention Case, Phosphates in Morocco case, and
others.

The PCIJ adequately justified its reasoning by bringing all the disputed matters and argument
presented before it or by sou moto. At first it had justified its jurisdiction which was under question
by the Poland as raised in respect of res judicator showing Article 23 of Geneva Convention, but the
court justified its jurisdiction by referring Article 36 of the Statute of the Court. In order to reason the
compensation declared was also justified by Article 6-22, specially by Article 7 of Geneva
Convention and by its interpretation. It is also interpreted the muncieal laws as well as customary
international laws with a new view of International Law (IL) concerning the subject matter of IL.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
93
The appropriate interpretation were made by PCIJ in every point, such as the interpretation of Art.
36 of the Statute of the Court to justify its jurisdiction. The Article said the parties can go to the court
in all or any of the classes of legal dispute concerning (a) the interpretation of a Treaty; (b) the
existence of any fact which, if established, would constitute a breach of an international obligation;
(c) the nature or extent of the reparation to be made for the breach of an international obligation. It
bring the general concept of law that every violation of an engagement involves an obligation. And
the violation was clarified as the Poland violated the Art. 7 of Geneva Convention and illegally
expropriate two of German factories. In this case, the court further interpreted that the expropriating
state must, in addition to paying the compensation due in respect of a lawful expropriation, pay also
damages for any loss sustained by the injured party.

(3) Poland would be liable to repair any loss suffered by the Germany due to the forfeit of that two
company as they violated that international agreement.

Where the indemnity amount is concerned, the court held “the essential principle contained in the
actual notion of an illegal act - a principle which seems to be established by international practice
and in particular by the decisions of arbitral tribunals - is the reparation must, as far as possible,
wipe out all the consequences of the illegal act and reestablish the situation which would, in all
probability, have existed if that act had not been committed. Restitution in kind, or if this is not
possible, payment of a sum corresponding to the value which a restitution in kind would bear; the
award, if need be, of damages for loss sustained which would not be covered by restitution in kind
or payment in place of it - such are the principles which should serve to determine the amount of
compensation due for an act contrary to IL.”

In virtue of the general principles of International Law, must be added that of compensating loss
sustained as the result of the seizure. The impossibility of restoring the Chorzow factory therefore
has no other effect but that of substituting payment of the value of the undertaking for restitution; it
would not be inconformity with the principles of law or with the wish of the parties to infer from that
agreement that the question must henceforth be dealt with though an expropriation properly so
called was involved.

Barcelona Traction Light and Power Company Case, ICJ Reports, 1970
FACTS:
-Belgium (P) brought an action for damages against Spain (D) on the ground that its nationals as
shareholders of the Barcelona Traction Co., incorporated and registered in Canada, had been seriously
harmed by actions of Spain (D) resulting in expropriation.
-The Barcelona Traction, Light, and Power Co. was incorporated and registered in Canada for the
purpose of developing and operating electrical power in Spain (D).
-After the Spanish Civil War, the company was declared bankrupt by a Spanish court and its assets
were seized.
-After the Canadian interposition ceased, Belgium (P) brought an action for damages against Spain (D)
for what it termed expropriation of the assets of the Traction Co. on the ground that a large majority of
the stock of the company was owned by Belgian (P) nationals.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
94
-Spain (D) raised the preliminary objection that Belgium (P) lacked standing to bring suit for damages
to a Canadian company.
ISSUE:
Does the state of the shareholders of a company have a right of diplomatic protection if the state whose
responsibility is invoked is not the national state of the company?
HELD:
No. In order for a state to bring a claim in respect of the breach of an obligation owed to it, it must first
establish its right to do so. This right is predicated on a showing that the defendant state has broken an
obligation toward the national state in respect of its nationals. In the present case it is therefore essential
to establish whether the losses allegedly suffered by Belgian (P) shareholders in Barcelona Traction
were the consequence of the violation of obligations of which they are beneficiaries.
-In the present state of the law, the protection of shareholders requires that recourse be had to treaty
stipulations or special agreements directly concluded between the private investor and the state
in which the investment is placed. Barring such agreements, the obligation owed is to the corporation,
and only the state of incorporation has standing to bring an action for violations of such an obligation.
Nonetheless, for reasons of equity a theory has been developed to the effect that the state of the
shareholders has a right of diplomatic protection when the state whose responsibility is invoked is the
national state of the company. This theory, however, is not applicable to the present case, since Spain
(D) is not the national state of Barcelona Traction. Barcelona Traction could have approached its
national state, Canada, to ask for its diplomatic protection.
-For the above reasons, the Court is of the opinion that Belgium (P) lacks standing to bring this action.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
95
British Petroleum v. Libya, 53 ILR 297
FACTS:
In 1957, Concession 65 was granted to Mr. Hunt, a citizen of the United States, pursuant to the
Libyan Petroleum Law of 1955. The concession grant allowed the exclusive right to search and extract
petroleum from Libya and sell the oil produced for 50 years. In 1960, British Petroleum Company
Limited acquired an undivided one half interest in Concession 65 from Mr. Hunt.
On December 7, 1971, the respondent, Libyan Government, passed BP(British Petroleum)
Nationalization law which nationalized the operations of British Petroleum Company Limited, the
claimant. The law sought to restore to the state all properties, rights, assets, and shares derived from
petroleum operations in Libya of said company. In addition, the law sought to transfer the claimed
assets, properties, rights, and shares to a new company, the Arabian Gulf Exploration Company. Under
BP Nationalization law, the State would pay compensation to be determined by a committee established
by the Minister of Petroleum within 3 months. However, the committee did not report within the period.
It is also contended that political relations between the British and Libyan government are a basis for
the passage of the nationalization law.
On December 11, 1971, the British Petroleum Company started arbitration proceedings on the
ground that the law was a unilateral and unacceptable repudiation of the Concession. As the Libyan
Government did not respond, the claimants applied to the President of the International Court of Justice
for the appointment of a sole arbitrator pursuant to the arbitration clause, contained in Concession 65.
ISSUES:
1. Whether or not Concession 65 is a contractual instrument.
2. Whether or not public international law solely governs the BP concession
3. Whether or not the nationalization constituted a breach of contract
4. Whether or not Concession 65 continues to be in full force and effect.
HELD:
1. Yes. Clause 16 of Concession 65 provides that, “the contractual rights expressly created by this
concession shall not be altered except by mutual consent of the parties.” According to Professor
Omar of the Cairo University, concession contracts under Libyan law are considered to belong
to the category of administrative contracts. In such agreements “the Government have the right
to change unilaterally the clauses of the concession, and have also the right to terminate the
concession. But these two rights are not absolute: the change of the clauses of the concession
or its termination must be in pursuance of a true public interest. If the change or termination are
not lawful, the concessionaire is entitled to obtain complete damages covering not only his actual
losses but also all the profits he would have realized had the change or termination not taken
place. Therefore, as there is a direct contractual link between the claimant and respondent, it is
considered as a contractual instrument.

2. No. In paragraph 7 of Clause 28 of Concession 65, 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.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
96
It does not mean that “a principle must be supported by both Libyan law and international law
[in order to be] justifiable under the Concession.” For example, one system may prescribe that
payments shall be made in one currency and the other system that payment shall be made in a
different currency. Clearly, in such a case, under paragraph 7 of Clause 28 the general principles
of law must provide the answer to the question what currency is to be used. If one system
imposes automatic, obligatory limitation after the lapse of a given period, but the other does not,
again the general principles of law will be resorted to for the purpose of determining whether a
claim is barred by the lapse of time. Similarly, if one system contains the principle that any default
by a debtor entitles a creditor to accelerate payment of principal and interest with immediate
effect, but the other system does not offer the creditor such a remedy, the general principles of
law will govern the issue respecting the availability of that remedy.

Therefore, what must apply in the absence of principles common to the law of Libya and
international law, are the general principles of law, including such of those principles as may
have been applied by international tribunals.

3. Yes. No elaborate reasons are required to resolve the third issue in this case. The BP
Nationalization Law, and the actions taken thereunder by the Libyan government, do constitute
a fundamental breach of the BP Concession as they amount to a total repudiation of the
agreement and the obligations of the Libyan Government 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 Libyan Government 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
nationalization, and the fact that no offer of compensation has been made indicates that the
taking was also confiscatory.

4. No declaration but British Petroleum Company is entitled to damages.

The BP Nationalization law cannot be applied because it is considered an abuse of sovereign


power. Furthermore, it cannot be the intention of the parties that principles of law of Libya
includes provisions specifically directed against the other party, in particular. Professor Omar in
his says that if the Government unilaterally changes or terminates a concession contract, the
concessionaire under Libyan law is entitled to obtain damages. However, Professor Omar
makes no reference in this context to the availability to the concessionaire of the remedy of
specific performance or restitutio in integrum against the State.

Pursuant to public international law and practice of international tribunals, the emphasis has
been different in the several analyses mainly due to discrepancies in the terminology. Thus, the
continuance in force of a treaty despite the occurrence of a fundamental breach has been a topic
referred to only rarely in the literature and even more seldom in adjudicated cases, and specific
performance similarly is a concept which has hardly ever been used in international law. Those
two terms are, on the other hand, the ones which occur most frequently in the sphere of the
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
97
relevant general principles of law. The expression restitutio in integrum, conversely, is often met
with in writings on international law and has been considered in the practice of international
tribunals but has much less significance in a study of the general principles of law.
An expropriation, nationalization or taking, if and when implemented in full, is an act of finality
where a State has exercised its sovereign territorial power to expel a foreign enterprise and
appropriate its property and other rights. No State has ever reversed such an action by granting
restitutio in integrum, and it is unlikely that any State exercising diplomatic protection of its
nationals will demand such a reversal without offering or eventually accepting the alternative
remedy, exercisable at the option of the defaulting State, of reparation in the form of monetary
compensation. It has rarely been suggested that the subject-matter in dispute is not property,
rights and interests of a purely economic nature on which, thus, a financial value can be put. It
has only been argued doctrinally that, where damages are not an adequate remedy (meaning
where the State demonstrably is insolvent or incapable of discharging its proper obligations),
restitutio in integrum should be considered. The Claimant has made no submission to such
effect. At times it has been indicated, also, that damages may be difficult to calculate in respect
of the value of an abrogated long term contract. However, such difficulties are not
insurmountable.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
98
Saudi Arabia v. Arabian American Oil Co., 27 ILR L17
FACTS:
 The present case is an arbitration relating to the interpretation of the 1933 Concession
Agreement between the Government of the State of Saudi Arabia (Government) and Aramco
giving Aramco exclusive rights to transport oil extracted from its concession in Saudi Arabia.
 Article 1 of the 1933 Concession Agreement provides that “The Government hereby grants to
the Company on the terms and conditions hereinafter mentioned, and with respect to the area
defined below, the exclusive right, for a period of 60 years from the effective date hereof to
explore, prospect, drill for, extract, treat, manufacture, transport, deal with, carry away, and
export Petroleum…” Thus, under the Concession, Aramco has the exclusive right
1. to search for petroleum (explore and prospect)
2. to extract oil (drill for and extract)
3. to refine petroleum and produce its derivatives (treat and manufacture)
4. to transport petroleum, to sell it abroad, and to dispose of it commercially (transport, deal
with, carry away and export)
 Article 22 of the 1933 Concession Agreement provides that “It is understood, of course, that the
Company has the right to use all means and facilities it may deem necessary or advisable in
order to exercise the rights granted under this contract so as to carry out the purpose of this
enterprise…”
 Subsequently, in 1954, the Government concluded the Onassis Agreement which gave the
Saudi Arabian Maritime Tankers. Ltd (Satco) a 30 years right of priority for the transport of Saudi
Arab Oil.
 The central point in dispute submitted to the Arbitration Tribunal is to determine what rights were
conferred upon Aramco by the Concession Agreement particularly as regards the transport of
Saudi Arab oil by Aramco.
 Government’ argument: The Concession Agreement 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 contemplated 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.
 The Arbitration Tribunal notes the good faith of the Parties as regards the resolution of the case.

ISSUE:
1. W/N Aramco has the right to transport oil by sea
2. W/N the Onassis Agreement is in conflict with the Concession Agreement of 1933

HELD:
1. YES. The exclusive right to export granted to Aramco necessarily implies the right to transport oil by
sea.

 The Arbitration Tribunal cannot adopt the argument of the government without straining the
meaning of the texts.
 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.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
99
 “To transport” – to carry beyond persons or things i.e. from one place to another, whatever the
distance between them. It does not imply and special means of transportation. 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
o 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.
o The government further claims that the right of transport across boundary of the territorial
waters is granted to the concessionaire in one direction only—which is in order to reach Saudi
Arabia and not in order to take its oil and products away from the country.
o The arbitration tribunal holds that such contention is not supported by various texts which
constitute the Concession and overlook the practical utility for Aramco to transport oil outside
the territorial waters.
o The 7984 Offshore Agreement provides that Aramco enjoy an exclusive right to transport not
only within the territorial waters, but also across boundary which separates the waters from
the high seas.
o 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.
o The legal construction resorted to by the Government appears to be contrary to the nature
of things, to the needs of commerce, to the real intention of the parties, as well as the wording
of various agreements pertaining to the concession.
 “Right to export:” – this right is disputed by the parties.
o Aramco relies on the Dictionary of Littre contending that it means to transport to a foreign
country products of the soil or of the national industry.
o This corresponds with the definition in the Saudi Arabian Customs Law and Regulations: to
export means to take, send and imported or domestic article destined for a foreign country
beyond the territorial jurisdiction of the Kingdom of Saudi Arabia.
o The Government relies on the Webster’s Dictionary which defines “to export” as to carry or
send abroad especially to foreign countries as merchandise or commodities in the way of
commerce, thus concluding that Aramco’s exclusive right to export amounts to nothing more
than to the right to obtain an export license without unreasonable interference from the
Government, but with no privilege in the matter of exportation by sea.
o The Arbitration Tribunal does not agree. It cannot be overlooked that the right to export is
intimately connected, in Article 1 of the Concession Agreement, with a more general
exclusive right guaranteed to the exported which included the right to transport to carry away
and to deal with.
o The terms in article 1 are couched in the widest terms. Article 22 gives a more specific
enumeration of the technical and material means available to Aramco in order to exercise its
exclusive right. The import of Article 22 would be useless if it did not presuppose the right to
transport by sea.
o The arbitration Tribunal cannot also overlook the practices and usages of comers known to
both Parties at the time of the Agreement unless it is prepared to content itself with abstract
reasoning and to lose sight of reality any of the requirements of the oil industry.
 Principles of interpretation used by the Government
o Interpretation by Circumstantial Evidence – the Government argues that in connection
with transportation by sea, it has negotiated with an oil company and not a maritime transport
company. Further, since Aramco never owned tank ships, the Government could not have
intended to grant Aramco a right which it could not have exercised itself.
– Arbitration Tribunal: the question of transportation by sea imperatively arose as soon
as oil in commercial quantities was discovered. Necessarily, such consideration was to
be necessarily taken in the conclusion of the Concession Agreement. Subsequently after
the agreement, Aramco had taken steps to acquire its own vessels and facilities to
transport oil the Government also constructed two pipelines to facilitate transport. Such
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
100
developments indicate the recognition of the parties the tight to transport granted to
Aramco was vital to the success of the enterprise. That Aramco was not a maritime
transport company is irrelevant.
o Teleological Interpretation of the Contract – is based upon a consideration of the common
and reasonable purpose of the contract at the time of signing. The common aim of the parties
(not the separate intent of each) must be ascertained in order to determine the true meaning
of the expressions used.
– Arbitration Tribunal: In the present case, the common aim was the production of oil in
Saudi Arabia and its sale in all markets of the world. To attain this purpose, Aramco had
to be given a wide discretion to achieve such end. It is certain that no agreement between
the parties would have been reached if the concessionary company had not been able to
obtain the guarantee of an exclusive right of transportation by sea and of exportation of
oil and products with freedom toe exercise its right at its discretion.
o Restrictive interpretation – applied by the Government in this case because it claimed that
a State is a party to the contract and is furthermore governed by Moslem Law. Under the
Moslem Law, the Imam (head) is never presumed to have limited his right of sovereignty
unless expressly proof to the contrary is shown. In this case, the restrictive interpretation was
applied because, according to the Government, no express provision allowed the right to
transport by sea. Aramco on the other hand claims that the restrictive interpretation rule is
obsolete and can only be applied where there is insurmountable doubt as to the intention of
the parties.
– Arbitration Tribunal: the restrictive application rules should not be applied merely
because a State is a party to the contract. The rights of the Parties should be evaluated
in a spirit of complete equality; otherwise the rights of one party will be increased as a
result of the restrictive interpretation to the extent that the rights of the other party are
restricted. It is only when the exact meaning of such contract is impossible to determine
that the interpretation most favorable to the freedom of the State may be adopted. In this
case, the government failed to prove that the meaning of Article 1 and 22 of the 1933
Concession Agreement is doubtful. Furthermore, States are still bound to fulfill obligations
to the same extent as private persons. Restrictive interpretation is justified only when the
sovereign rights invoked by the State concern interests of general nature which cannot
be defended unless doubtful clauses of the contract are disregarded.
o Rule contra preferentum (Verba chartarum forties accipentur contra preferatum) –
applicable where only one party prepares the contract. (Doctrine of Contract of adhesion).
Government claims that it was Aramco which applied for the Concession and prepared the
draft. Thus, all omissions and ambiguities in the text should be interpreted against Aramco.
Any surrender of an exclusive right to transport must be clearly expressed.
– Arbitration Tribunal: No proof has been furnished to indicate that the conclusion of the
contract was initiated by Aramco. Furthermore, the rule is inapplicable in case of mining
or oil concession where in the first place the State has an elementary duty to scrutinize
thoroughly the texts prepared and where they could not have given their consent by
surprise.

2. NO. Rights of Aramco under the Concession Agreement are protected in accordance with the
principle of acquired rights.

 Government: claims that since the Onassis Agreement was ratified by Royal Decree, it has acquired
legal force in Saudi Arabia, acquiring the nature of a general law regulating maritime transport of oil
and its derivatives. It blames Aramco for opposing the laws of the State by refusing to implement it.
 Arbitration Tribunal finds that both the Onassis Agreement and the Concession Agreement were
similarly ratified and have the character of ordinary and regular concessions under Saudi Arab law
and which under the same, must always be approved by royal decree.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
101
 Both are purely contractual in nature. Contrary to the government’s claim, the Onassis Agreement
does not lay down norms of a general and impersonal application but it establishes an individual
situation to the advantage of MR. Onassis and the companies he represents.
 As regards Aramco, the Onassis Agreement is res inter alios acta which can neither diminish nor
increase its rights.
 In its capacity as first concessionaire, Aramco enjoys exclusive rights which have the character of
acquired or vested rights and cannot be taken away from it by the Government by means of a
contract concluded with a second concessionaire event it the two were equal from a legal point of
view.
 The principle of acquired rights is one of the fundamental principles both of public international law
and of the municipal law of most civilized states.
 Aramco is legally protected by the principle of acquired rights and is justified in resisting any
infringement of rights granted to it.

Medellin v. Texas, 552 US 491 (2008)


Facts: Jose Medellin (D), a Mexican national was found guilty for being part of the gang rape and
murder of two teenage girls in Houston. He argued that the state had violated his rights under the
Vienna Convention in which the United States is a party. Under the Vienna Convention, any foreign
national detained for any crime has a right to contact his consulate.
Though his appeal was dismissed by the Supreme Court, the Court took up his case again and Medellin
(D) argument rested in part on a holding by the International Court of Justice in Case Concerning Avena
and Other Mexican Nationals (Mex v U.S.), 2004 I.C.J. 12 that the U.S. had violated the Vienna
Convention rights of 51 Mexican national (including Medellin (D) and that their state-court convictions
must be reconsidered, regardless of any forfeiture of the right to raise the Vienna Convention claims
because of a failure to follow state rules governing criminal convictions.
Based on these, Medellin (D) argued that the Vienna Convention granted him an individual right that
state courts must respect. A memorandum from the U.S. President that instructed state courts to
comply with the I.C.J’s rulings by rehearsing the cases was also cited by Medellin (D). He further argued
that the Constitution gives the President broad power to ensure that treaties are enforced, and that this
power extends to the treatment of treaties in state court proceedings.

Issue(s):
(1)Are state courts required under the U.S. Constitution to honor a treaty obligation of the United States
by enforcing a decision of the International Court of Justice?
(2) Are states courts required by the U.S. Constitution to provide review and reconsideration of a
conviction without regard to state procedural default rules as required by a memorandum by the
President?

Ruling: (Roberts, C.J). (1). No. States courts are not required under the U.S. Constitution to honor a
treaty obligation of the United States by enforcing a decision of the International Court of Justice. What
the Vienna Convention stipulate is that if a person detained by a foreign country asks, the authorities
of the detaining national must, without delay, inform the consular post of the detainee of the detention.
(2). State courts are not required by the U.S. Constitution to provide review and reconsideration of a
conviction without regard to state procedural default rules as required by a Memorandum by the
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
102
President. The presidential memorandum was an attempt by the Executive Branch to enforce a non-
self-executing treaty without the necessary congressional action, giving it no binding authority on state
courts.

Dissent: (Breyer, J.) Texas (P) is required by the Supremacy law to enforce the I.C.J’s judgment in
Avena. The relevant treaty should be found to be self-executing because the language supports direct
judicial enforcement, the optional protocol is applicable to disputes about the meaning of a provision
that is itself self-executing and judicially enforceable, logic requires a conclusion that the provision is
self-executing since it is final and binding, the majority decision has negative practical implications, the
I.C.J. judgment is well suited to direct judicial enforcement, such a holding would not threaten
constitutional conflict with other branches and neither the President nor Congress has expressed
concern about direct judicial enforcement of the I.C.J. decision.

Concurrence: (Stevens, J.) Texas failure to provide consular notice in accordance with the Vienna
Convention got the U.S. into this mess and since the violation did not prejudice Medellin (D), Texas (P)
ought to comply with Avena.

Discussion: After last minutes appeals to the U.S. Supreme Court were rejected, Medellin (D) was
executed on the August 5, 2008. The request made to Governor Rick Perry by Secretary of State
Condoleezza Rice and Mexico and the Attorney General Michael Mukassey to delay the execution
citing the torture, rape and strangulation of two teenage girls in Houston as just cause for the death
penalty. Congress took no action even when a bill was introduced in the House of Representatives to
respond to the Court’s ruling.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
103
III. International Law and Municipal Law
1. Anjela Ching Tanada v. Angara, G.R. No. 118295 , May 2, 1997
2. Jess Culajara Mijares v. Hon. Ranada G.R. No. 139325 , April 12, 2005
3. Tin Vitorillo International Status of South West ICJ (1950)
Africa, Opinion of Sir Arnold McNair
4. Lugi Fontanilla Filartiga v. Pena-Irala (630 F.2d 876, 1980)

IV. Subjects of International Law


5. Noel Acosta Case Concerning the Rights of the (ICJ Reports 176, 1952)
Nationals of the USA in Morocco
6. Jordan The Tinoco Arbitration 1923
Cabandong
7. Ivan Salmasan Declaration on the Granting of U.N. General Assembly
Independence to Colonial Territories Resolution, 1514 XV, Dec. 14,
and Peoples 1960)
8. Loren Manda Western Sahara Case Advisory Opinion, ICJ Reports,
1950)
9. Sj Dadayan International Status of South West Advisory Opinion, ICJ Reports,
Africa 1950
10. Emil Legal Consequences for States of the (Advisory Opinion, ICJ Reports,
Samaniego Continued Presence of South Africa in 1971)
Namibia (South West Africa)
11. Fatima Reparations for Injuries Suffered in the (ICJ Reports, 1949)
Tolentino Service of the United Nations
12. Jay Salonga Libya Arab Jamahiriya v. USA ICJ Reports 1988
(Lockerbie Case)
13. Roi Dizon The ELSI Case (USA v. Italy) ICJ Reports 1989
14. James Alih Nauru v. Australia ICJ Reports 1992
15. Thrix Garcia Case Concerning East Timor (Portugal ICJ Reports 1995
v. Australia)
16. Jake Pablo Admissions Case (Conditions of ICJ Reports, May 28 1948
Admission of a State to Membership in
the United Nations)
17. Tara Mediodia Judgement of the Nuremberg Tribunal

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
104
III. International Law and Municipal Law

1. TAÑADA vs. ANGARA


WIGBERTO E. TAÑADA et. al (as members of the Philippine Senate and as tax payers; petitioners)
vs. EDGARDO ANGARA et. al (in their respective capacities as members of the Philippine Senate
who concurred in the ratification by the President of the Philippines of the Agreement Establishing the
World Trade Organization)

FACTS: On April 15, 1994, Rizalino Navarro, then Secretary of The Department of Trade and Industry,
representing the Government of the Republic of the Philippines, signed in Marrakesh, Morocco, the
Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations (Final Act, for
brevity).
By signing the Final Act, Secretary Navarro on behalf of the Republic of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities, with a view to seeking approval of the Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994
from the President of the Philippines, stating among others that "the Uruguay Round Final Act is hereby
submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution."
On August 13, 1994, the members of the Philippine Senate received another letter from the President
of the Philippines likewise dated August 11, 1994, which stated among others that "the Uruguay Round
Final Act, the Agreement Establishing the World Trade Organization, the Ministerial Declarations and
Decisions, and the Understanding on Commitments in Financial Services are hereby submitted to the
Senate for its concurrence pursuant to Section 21, Article VII of the Constitution."
On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption
of P.S. 1083, a resolution entitled "Concurring in the Ratification of the Agreement Establishing the
World Trade Organization."
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which "Resolved, as it is
hereby resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade Organization." The text of the WTO
Agreement is written on pages 137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral
Trade Negotiations and includes various agreements and associated legal instruments.
On December 16, 1994, then President Fidel V. Ramos of the Philippines signed the Instrument of
Ratification, that after having seen and considered the aforementioned Agreement Establishing the
World Trade Organization and the agreements and associated legal instruments included in Annexes
one (1), two (2) and three (3) of that Agreement which are integral parts thereof, signed at Marrakesh,
Morocco on 15 April 1994, ratified and confirmed the same and every Article and Clause thereof.

To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the
Agreement Proper and "the associated legal instruments included in Annexes one (1), two (2) and three
(3) of that Agreement which are integral parts thereof."
On December 29, 1994, the present petition was filed arguing mainly (1) that the WTO requires the
Philippines "to place nationals and products of member-countries on the same footing as Filipinos and
local products" and (2) that the WTO "intrudes, limits and/or impairs" the constitutional powers of both

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
105
Congress and the Supreme Court, the instant petition before this Court assails the WTO Agreement
for violating the mandate of the 1987 Constitution to "develop a self-reliant and independent national
economy effectively controlled by Filipinos . . . (to) give preference to qualified Filipinos (and to) promote
the preferential use of Filipino labor, domestic materials and locally produced goods."

ISSUE: Whether or not the 1987 Constitution prohibits the Philippines from participating in worldwide
trade liberalization and economic globalization and from integrating into a global economy that is
liberalized, deregulated and privatized.

HELD: NO. 1987 Constitution DOES NOT prohibit our country from participating in worldwide
trade liberalization and economic globalization and from integrating into a global economy that
is liberalized, deregulated and privatized. The Court DISMISSED the petition. It sustained the
concurrence of the Philippine Senate of the President’s ratification of the Agreement establishing the
WTO.
There are enough balancing provisions in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement.
[W]hile 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 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.
[T]he constitutional policy of a “self-reliant and independent national economy” does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates neither
“economic seclusion” nor “mendicancy in the international community.” As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly aware of
overdependence on external assistance for even its most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding mendicancy in the international community.
Independence refers to the freedom from undue foreign control of the national economy, especially in
such strategic industries as in the development of natural resources and public utilities.
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. Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity
to compete internationally. And given a free trade environment, Filipino entrepreneurs and managers

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
106
in Hongkong have demonstrated the Filipino capacity to grow and to prosper against the best offered
under a policy of laissez faire.
It is true, as alleged by petitioners, that broad constitutional principles require the State to
develop an independent national economy effectively controlled by Filipinos; and to protect and/or
prefer Filipino labor, products, domestic materials and locally produced goods. But it is equally true that
such principles — while serving as judicial and legislative guides — are not in themselves sources of
causes of action. Moreover, there are other equally fundamental constitutional principles relied upon
by the Senate which mandate the pursuit of a “trade policy that serves the general welfare and utilizes
all forms and arrangements of exchange on the basis of equality and reciprocity” and the promotion of
industries “which are competitive in both domestic and foreign markets,” thereby justifying its
acceptance of said treaty. So too, the alleged impairment of sovereignty in the exercise of legislative
and judicial powers is balanced by the adoption of the generally accepted principles of international law
as part of the law of the land and the adherence of the Constitution to the policy of cooperation and
amity with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent
to the WTO Agreement thereby making it “a part of the law of the land” is a legitimate exercise of its
sovereign duty and power. We find no “patent and gross” arbitrariness or despotism “by reason of
passion or personal hostility” in such exercise. It is not impossible to surmise that this Court, or at least
some of its members, may even agree with petitioners that it is more advantageous to the national
interest to strike down Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse
of discretion to the Senate and to nullify its decision. To do so would constitute grave abuse in the
exercise of our own judicial power and duty. Ineludibly, what the Senate did was a valid exercise of its
authority. As to whether such exercise was wise, beneficial or viable is outside the realm of judicial
inquiry and review. That is a matter between the elected policy makers and the people. As to whether
the nation should join the worldwide march toward trade liberalization and economic globalization is a
matter that our people should determine in electing their policy makers. After all, the WTO Agreement
allows withdrawal of membership, should this be the political desire of a member.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
107
2. MIJARES V. HON. RANADA

DOCTRINE: There is an evident distinction between a foreign judgment in an action in rem and one in
personam. For an action in rem, the foreign judgment is deemed conclusive upon the title to the thing,
while in an action in personam, the foreign judgment is presumptive, and not conclusive, of a right as
between the parties and their successors in interest by a subsequent title. However, in both cases, the
foreign judgment is susceptible to impeachment in our local courts on the grounds of want of jurisdiction
or notice to the party, collusion, fraud, or clear mistake of law or fact. Thus, the party aggrieved by the
foreign judgment is entitled to defend against the enforcement of such decision in the local forum. It is
essential that there should be an opportunity to challenge the foreign judgment, in order for the court in
this jurisdiction to properly determine its efficacy.
There are distinctions, nuanced but discernible, between the cause of action arising from the
enforcement of a foreign judgment, and that arising from the facts or allegations that occasioned the
foreign judgment. They may pertain to the same set of facts, but there is an essential difference in the
right-duty correlatives that are sought to be vindicated.
More importantly, the matters for proof are different. Extensive litigation is thus conducted on the
facts, and from there the right to and amount of damages are assessed. On the other hand, in an action
to enforce a foreign judgment, the matter left for proof is the foreign judgment itself, and not the facts
from which it prescinds.

FACTS:
On 9 May 1991, a complaint was filed with the United States District Court (USDC), District of
Hawaii, against the Estate of former Philippine President Ferdinand E. Marcos (Marcos Estate). The
action was brought forth by ten Filipino citizens who each alleged having suffered human rights abuses
such as arbitrary detention, torture and rape in the hands of police or military forces during the Marcos
regime. The Alien Tort Act was invoked as basis for the USDC jurisdiction over the complaint, as it
involved a suit by aliens for tortious violations of international law. These plaintiffs brought the action
on their own behalf and on behalf of a class of similarly situated individuals, particularly consisting of
all current civilian citizens of the Philippines, their heirs and beneficiaries, who between 1972 and 1987
were tortured, summarily executed or had disappeared while in the custody of military or paramilitary
groups. Plaintiffs alleged that the class consisted of approximately 10,000 members; hence, joinder of
all these persons was impracticable.
The institution of a class action suit was warranted under Rule 23(a) and (b)(1)(B) of the US
Federal Rules of Civil Procedure, the provisions of which were invoked by the plaintiffs. Subsequently,
the USDC certified the case as a class action and created three (3) sub-classes of torture, summary
execution and disappearance victims. Trial ensued, and subsequently a jury rendered a verdict and an
award of compensatory and exemplary damages in favor of the plaintiff class. Then, on 3 February
1995, the US District Court, presided by Judge Manuel L. Real, rendered a Final Judgment (Final
Judgment) awarding the plaintiff class a total of $1,964,005,859.90. The Final Judgment was eventually
affirmed by the US Court of Appeals for the Ninth Circuit, in a decision rendered on 17 December 1996.
On 20 May 1997, the present petitioners filed Complaint with the Makati RTC for the enforcement
of the Final Judgment.
On 5 February 1998, the Marcos Estate filed a motion to dismiss, raising, among others, the
non-payment of the correct filing fees. It alleged that petitioners had only paid P410.00 as docket and
filing fees, notwithstanding the fact that they sought to enforce a monetary amount of damages in the
amount of over US$2.25 Billion. The Marcos Estate cited Supreme Court Circular No. 7, pertaining to
the proper computation and payment of docket fees. In response, the petitioners claimed that an action

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
108
for the enforcement of a foreign judgment is not capable of pecuniary estimation; hence, a filing fee of
only P410.00 was proper, pursuant to Section 7(c) of Rule 141.
On 9 September 1998, respondent Judge Santiago Javier Ranada of the Makati RTC issued the
subject Order dismissing the complaint without prejudice. Respondent judge opined that contrary to the
petitioners submission, the subject matter of the complaint was indeed capable of pecuniary estimation,
as it involved a judgment rendered by a foreign court ordering the payment of definite sums of money,
allowing for easy determination of the value of the foreign judgment. On that score, Section 7(a) of Rule
141 of the Rules of Civil Procedure would find application, and the RTC estimated the proper amount
of filing fees was approximately P470M, which obviously had not been paid. Not surprisingly, petitioners
filed a Motion for Reconsideration, which Judge Ranada denied in an Order dated 28 July 1999. From
this denial, petitioners filed a Petition for Certiorari under Rule 65 assailing the twin orders of respondent
judge.

ISSUE:
(1) Whether the action filed with the lower court is a money claim against an estate not based on
judgment.
(2) What provision, if any, then should apply in determining the filing fees for an action to enforce a
foreign judgment?

RULING:
(1) YES. A reading of Section 7 in its entirety reveals several instances wherein the filing fee is
computed on the basis of the amount of the relief sought, or on the value of the property in litigation.
The filing fee for requests for extrajudicial foreclosure of mortgage is based on the amount of
indebtedness or the mortgagees claim. In special proceedings involving properties such as for the
allowance of wills, the filing fee is again based on the value of the property. The aforecited rules
evidently have no application to petitioners complaint.
Petitioners rely on Section 7(b), particularly the proviso on actions where the value of the subject
matter cannot be estimated. The provision reads in full:
SEC. 7. Clerk of Regional Trial Court.-
(b) For filing
1. Actions where the value of the subject matter cannot be estimated --- P 600.00
2. Special civil actions except judicial foreclosure which shall be governed by paragraph (a) above ---
P 600.00
3. All other actions not involving property --- P 600.00

In a real action, the assessed value of the property, or if there is none, the estimated value,
thereof shall be alleged by the claimant and shall be the basis in computing the fees. It is worth noting
that the provision also provides that in real actions, the assessed value or estimated value of the
property shall be alleged by the claimant and shall be the basis in computing the fees. Yet again, this
provision does not apply in the case at bar. A real action is one where the plaintiff seeks the recovery
of real property or an action affecting title to or recovery of possession of real property. Neither the
complaint nor the award of damages adjudicated by the US District Court involves any real property of
the Marcos Estate. Thus, respondent judge was in clear and serious error when he concluded that the
filing fees should be computed on the basis of the schematic table of Section 7(a), as the action involved
pertains to a claim against an estate based on judgment.

(2) The rules of comity, utility and convenience of nations have established a usage among civilized
states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected
and rendered efficacious under certain conditions that may vary in different countries. This principle
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
109
was prominently affirmed in the leading American case of Hilton v. Guyot and expressly recognized in
our jurisprudence beginning with Ingenholl v. Walter E. Olsen & Co.

Section 48 states:
SEC. 48. Effect of foreign judgments. The effect of a judgment of a tribunal of a foreign country,
having jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing;
(b) (b) In case of a judgment against a person, the judgment is presumptive evidence of a right as
between the parties and their successors in interest by a subsequent title;
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want
of notice to the party, collusion, fraud, or clear mistake of law or fact.
It is usually necessary for an action to be filed in order to enforce a foreign judgment, even if such
judgment has conclusive effect as in the case of in rem actions, if only for the purpose of allowing the
losing party an opportunity to challenge the foreign judgment, and in order for the court to properly
determine its efficacy. Consequently, the party attacking a foreign judgment has the burden of
overcoming the presumption of its validity.
The rules are silent as to what initiatory procedure must be undertaken in order to enforce a
foreign judgment in the Philippines. But there is no question that the filing of a civil complaint is an
appropriate measure for such purpose. A civil action is one by which a party sues another for the
enforcement or protection of a right, and clearly an action to enforce a foreign judgment is in essence
a vindication of a right prescinding either from a conclusive judgment upon title or the presumptive
evidence of a right. Absent perhaps a statutory grant of jurisdiction to a quasi-judicial body, the claim
for enforcement of judgment must be brought before the regular courts.
As stated in Section 48, Rule 39, the actionable issues are generally restricted to a review of
jurisdiction of the foreign court, the service of personal notice, collusion, fraud, or mistake of fact or law.
The limitations on review is in consonance with a strong and pervasive policy in all legal systems to
limit repetitive litigation on claims and issues. Otherwise known as the policy of preclusion, it seeks
to protect party expectations resulting from previous litigation, to safeguard against the harassment of
defendants, to insure that the task of courts not be increased by never-ending litigation of the same
disputes, and in a larger sense to promote what Lord Coke in the Ferrers Case of 1599 stated to be
the goal of all law: rest and quietness. If every judgment of a foreign court were reviewable on the
merits, the plaintiff would be forced back on his/her original cause of action, rendering immaterial the
previously concluded litigation.
Section 33 of B.P. 129 refers to instances wherein the cause of action or subject matter pertains
to an assertion of rights and interests over property or a sum of money. But as earlier pointed out, the
subject matter of an action to enforce a foreign judgment is the foreign judgment itself, and the cause
of action arising from the adjudication of such judgment. An examination of Section 19(6), B.P. 129
reveals that the instant complaint for enforcement of a foreign judgment, even if capable of pecuniary
estimation, would fall under the jurisdiction of the Regional Trial Courts, thus negating the fears of the
petitioners. Indeed, an examination of the provision indicates that it can be relied upon as jurisdictional
basis with respect to actions for enforcement of foreign judgments, provided that no other court or office
is vested jurisdiction over such complaint. The complaint to enforce the US District Court judgment is
one capable of pecuniary estimation. But at the same time, it is also an action based on judgment
against an estate, thus placing it beyond the ambit of Section 7(a) of Rule 141.
Notably, the amount paid as docket fees by the petitioners on the premise that it was an action
incapable of pecuniary estimation corresponds to the same amount required for other actions not
involving property. The petitioners thus paid the correct amount of filing fees, and it was a grave abuse
of discretion for respondent judge to have applied instead a clearly inapplicable rule and dismissed the
complaint.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
110
There is no obligatory rule derived from treaties or conventions that requires the Philippines to
recognize foreign judgments, or allow a procedure for the enforcement thereof. However, generally
accepted principles of international law, by virtue of the incorporation clause of the Constitution, form
part of the laws of the land even if they do not derive from treaty obligations. The classical formulation
in international law sees those customary rules accepted as binding result from the combination two
elements: the established, widespread, and consistent practice on the part of States; and a
psychological element known as the opinion juris sive necessitates (opinion as to law or necessity).
Implicit in the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.
While the definite conceptual parameters of the recognition and enforcement of foreign
judgments have not been authoritatively established, the Court can assert with certainty that such an
undertaking is among those generally accepted principles of international law. As earlier demonstrated,
there is a widespread practice among states accepting in principle the need for such recognition and
enforcement, albeit subject to limitations of varying degrees. The fact that there is no binding universal
treaty governing the practice is not indicative of a widespread rejection of the principle, but only a
disagreement as to the imposable specific rules governing the procedure for recognition and
enforcement.
Aside from the widespread practice, it is indubitable that the procedure for recognition and
enforcement is embodied in the rules of law, whether statutory or jurisprudential, adopted in various
foreign jurisdictions. In the Philippines, this is evidenced primarily by Section 48, Rule 39 of the Rules
of Court which has existed in its current form since the early 1900s. Certainly, the Philippine legal
system has long ago accepted into its jurisprudence and procedural rules the viability of an action for
enforcement of foreign judgment, as well as the requisites for such valid enforcement, as derived from
internationally accepted doctrines.
As crafted, Rule 141 of the Rules of Civil Procedure avoids unreasonableness, as it recognizes
that the subject matter of an action for enforcement of a foreign judgment is the foreign judgment itself,
and not the right-duty correlatives that resulted in the foreign judgment. In this particular circumstance,
given that the complaint is lodged against an estate and is based on the US District Courts Final
Judgment, this foreign judgment may, for purposes of classification under the governing procedural
rule, be deemed as subsumed under Section 7(b)(3) of Rule 141, i.e., within the class of all other actions
not involving property. Thus, only the blanket filing fee of minimal amount is required.
It bears noting that Section 48, Rule 39 acknowledges that the Final Judgment is not conclusive
yet, but presumptive evidence of a right of the petitioners against the Marcos Estate. Moreover, the
Marcos Estate is not precluded to present evidence, if any, of want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact. This ruling, decisive as it is on the question of
filing fees and no other, does not render verdict on the enforceability of the Final Judgment before the
courts under the jurisdiction of the Philippines, or for that matter any other issue which may legitimately
be presented before the trial court. Such issues are to be litigated before the trial court, but within the
confines of the matters for proof as laid down in Section 48, Rule 39. On the other hand, the speedy
resolution of this claim by the trial court is encouraged, and contumacious delay of the decision on the
merits will not be brooked by this Court.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
111
3. INTERNATIONAL STATUS OF SOUTH WEST AFRICA
ICJ, ADVISORY OPINION, JULY 11, 1950 **see facts of the case under PART IV.**

SEPARATE OPINION BY SIR ARNOLD McNAIR

Sir Arnold Mcnair concur in the Replies given by the majority of the Court to the General Question and
to Questions (b) and (c). As to Question (a), it differ as to the obligation to make reports and as to the
transfer of the administrative supervision of the Council of the League of Nations (including its Rules of
Procedure in respect of Petitions) to the United Nations.

General Question, and Question (a)

The crucial problems raised by Question (a) submitted to the Court are : What is the effect of the
dissolution of the League of Nations in April, 1946, upon the Mandate for South-West Africa, and which,
if any, of the obligations arising from it are still binding upon the Union of South Africa (which we shall
also refer to as "the Union").

The solution submitted by Counsel for the Union Government for the first of these problems can be,
stated very simply :

the Mandate is based on the analogy of the contract of mandate in private law, the League being the
Mandator and the Union the Mandatory ; the relationship cannot subsist without a Mandator at one end
and a Mandatory at the other ; "as between the League and the Union Government, the Mandate
therefore came to an end, and that means that, as from the dissolution of the League, there has been
no Mandate" ; "the Mandates lapsed and the Covenant itself ceased to be a legally valid document" ;
and "the dissolution of the League had the effect of extinguishing all international legal rights and
obligations under the Mandates System". This conclusion left it to be inferred that the Union
Government would thereupon be free to regulate the future status of South-West Africa as a domestic
matter.

For three separate reasons I have formed the opinion that a Mandate is a more durable and a more
complex institution than this solution suggests. My reasons rest on :
1. The legal nature of the Mandates System.
2. The objective character of Article 22 of the Covenant of the League of Nations.
3. The terms of the Mandate for South-West Africa and their legal nature.

***

I. The legal nature of the Mandates System. The principal documents responsible for the creation of
the Mandates System are Article 22 of the Covenant of the League of Nations and the several Mandates
confirmed in pursuance of it by the Council of the League. The main rule of policy proclaimed by Article
22 of the Covenant is that to certain territories "which are inhabited by peoples not yet able to stand by
themselves under the strenuous conditions of the modern world, there should be applied the principle
that the well-being and development of such peoples form a sacred trust of civilization and that
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
112
securities for the performance of this trust should be embodied in this Covenant".

What is the duty of an international tribunal when confronted with a new legal institution the object and
terminology of which are reminiscent of the rules and institutions of private law? To what extent is it
useful or necessary to examine what may at first sight appear to be relevant analogies in private law
systems and draw help and inspiration from them? International Law has recruited and continues to
recruit many of its rules and institutions from private systems of law. Article 38 (1) (c) of the Statute of
the Court bears witness that this process is still active, and it will be noted that this article authorizes
the Court to "apply .... (c) the general principles of law recognized by civilized nations". The way in
which International Law borrows from this source is not by means of importing private law institutions
"lock, stock and barrel", ready-made and fully equipped with a set of rules. It would be difficult to
reconcile such a process with the application of "the general principles of law". In my opinion, the true
view of the duty of international tribunals in this matter is to regard any features or terminology which
are reminiscent of the rules and institutions of private law as an indication of policy and principles rather
than as directly importing these rules and institutions.

Let us then seek to discover the underlying policy and principles of Article 22 and of the Mandates. No
technical significance can be attached to the words "sacred trust of civilization", but they are an apt
description of the policy of the authors of the Mandates System, and the words "sacred trust" were not
used here for the first time in relation to dependent peoples.
System is to be found in the trust, and his quotation from an article by M. Lepaulle, are here very much
in point, and it is worth noting that the historical basis of the legal enforcement of the English trust is
that it was something which was binding upon the conscience of the trustee; that is why it was legally
enforced. It also seems probable that the conception of the Mandates System owes something to the
French tutelle.

Nearly every legal system possesses some institution whereby the property (and sometimes the
persons) of those who are not sui juris, such as a minor or a lunatic, can be entrusted to some
responsible person as a trustee or tuteur or curateur. The Anglo-American trust serves this purpose,
and another purpose even more closely akin to the Mandates System, namely, the vesting of property
in trustees, and its management by them in order that the public or some class of the public may derive
benefit or that some public purpose may be served. The trust has frequently been used to protect the
weak and the dependent, in cases where there is "great might on the one side and unmight on the
other", and the English courts have for many centuries pursued a vigorous policy in the administration
and enforcement of trusts.

There are three general principles which are common to all these institutions :

(a) that the control of the trustee, tuteur or curateur over the property is limited in one way or another ;
he is not in the position of the normal complete owner, who can do what he likes with his own, because
he is precluded from administering the property for his own personal benefit;
(b) that the trustee, tuteur or curateur is under some kind of legal obligation, based on confidence and
conscience, to carry out the trust or mission confided to him for the benefit of some other person or for
some public purpose ;
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
113
(c) that any attempt by one of these persons to absorb the property entrusted to him into his own
patrimony would be illegal and would be prevented by the law.

These are some of the general principles of private law which throw light upon this new institution.
Upon sovereignty a very few words will suffice. The Mandates System is a new institution-—a new
relationship between territory and its inhabitants on the one hand and the government which represents
them internationally on the other— a new species of international government, which does not fit into
the old conception of sovereignty and which is alien to it. The doctrine of sovereignty has no application
to this new system. Sovereignty over a Mandated Territory is in abeyance ; if and when the inhabitants
of the Territory obtain recognition as an independent State, as has already happened in the case of
some of the Mandates, sovereignty will revive and vest in the new State. What matters in considering
this new institution is not where sovereignty lies, but what are the rights and duties of the Mandatory in
regard to the area of territory being administered by it. The answer to that question depends on the
international agreements creating the system and the rules of law which they attract. Its essence is that
the Mandatory acquires only a limited title to the territory entrusted to it, and that the measure of its
powers is what is necessary for the purpose of carrying out the Mandate. "The Mandatory's rights, like
the trustee's, have their foundation in his obligations ; they are 'tools given to him in order to achieve
the work assigned to him' ; he has 'all the tools necessary for such end, but only those'."

The legal character of the Mandates cannot be explained by reference to the private law contract of
mandate or agency. The words "Mandate" and "Mandatory" were employed as non-technical terms to
denote that the Mandatory was doing something "on behalf of the League", and that that is all that can
be extracted from their use. It is primarily from the principles of the trust that help can be obtained on
the side of private law.

***

2. The objective character of Article 22 of the Covenant of the League of Nations

The Mandates System seems to me to be an a fortiori case. The occasion was the end of a world war.
The parties to the treaties of peace incorporating the Covenant of the League and establishing the
system numbered thirty. The public interest extended far beyond Europe. Article 22 proclaimed "the
principle that the well-being and development of such peoples form a sacred trust of civilization and
that securities for the performance of this trust should be embodied in the Covenant". A large part of
the civilized world concurred in opening a new chapter in the life of between fifteen and twenty millions
of people, and this article was the instrument adopted to give effect to their desire. In my opinion, the
new régime established in pursuance of this "principle" has more than a purely contractual basis, and
the territories subjected to it are impressed with a special legal status, designed to last [p155] until
modified in the manner indicated by Article 22. The dissolution of the League has produced certain
difficulties, but, as I shall explain, they are mechanical difficulties, and the policy and principles of the
new institution have survived the impact of the events of 1939 to 946, and have indeed been
reincarnated by the Charter under the name of the "International Trusteeship System", with a new lease
of life
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
114
3. The terms of the Mandate for South-West Africa and their legal nature

The Mandate created a status for South-West Africa. This fact is important in assessing the effect of
the dissolution of the League. This status—valid in rem—supplies the element of permanence which
would enable the legal condition of the Territory to survive the disappearance of the League, even if
there were no surviving personal obligations between the Union and other former Members of the
League. "Real" rights created by an international agreement have a greater degree of permanence
than personal rights, because these rights acquire an objective existence which is more resistant than
are personal rights to the dislocating effects of international events. The importance of this point is that
it makes it unnecessary to determine the respective roles of the Principal Allied and Associated Powers
and the Council of the League in the creation of the Mandate or to consider whether those Powers
became functi oficio after the allocation and confirmation of the Mandate, as was submitted by counsel
for the Union Government, or not. As Chief Justice Marshall said, speaking of a treaty which had expired
:
"A right once vested does not require, for its preservation, the continued existence of the power by
which it was acquired. If a treaty, or any other law, has performed its office by giving a right, the
expiration of the treaty or law can not extinguish that right."

***

I now turn to consider the effect of the dissolution of the League.

The dissolution of the League on April 19, 1946, did not automatically terminate the Mandates. Each
Mandate has to be considered separately to ascertain the date and the mode of its termination.
The Mandate for South-West Africa was never formally terminated, and I can find no events which can
be said to have brought about its termination by implication. Paragraph 3 of the Resolution of the
Assembly of the League regarding the Mandates, dated April 18, 1946, does not Say that the Mandates
come to an end but that, "on the termination of the League's existence, its functions with respect to the
Mandated Territories will come to an end".

Which then of the obligations and other legal effects resulting from the Mandate remain to-day ? The
Mandatory owed to the League and to its Members a general obligation to carry out the terms of the
Mandate and also certain specific obligations, such as the obligation of Article 6 to make an annual
report to the Council of the League. The obligations owed to the League itself have come to an end.
The obligations owed to former Members of the League, at any rate, those who were Members at the
date of its dissolution, subsist, except in so far as their performance involves the actual co-operation of
the League, which is now impossible. (I shall deal with Article G and the first paragraph of Article 7
later.) Moreover, the international status created for South-West Africa, namely that of a territory
governed by a State in pursuance of a limited title as defined in a Mandate, subsists.

Although there is no longer any League to supervise the exercise of the Mandate, it would be an error
to think that there is no control over the Mandatory. Every State which was a Member of the League at
the time of its dissolution still has a legal interest in the proper exercise of the Mandate. The Mandate
provides two kinds of machinery for its supervision—judicial, by means of the right of any Member of
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
115
the League under Article 7 to bring the Mandatory compulsorily before the Permanent Court, and
admin-istrative, by means of annual reports and their examination by the Permanent Mandates
Commission of the League.

The judicial supervision has been expressly preserved by means of Article 37 of the Statute of the
International Court of Justice adopted in 1945 :

"Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been
instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall,
as between the parties to the present Statute, be referred to the International Court of Justice."

This article effected a succession by the International Court to the compulsory jurisdiction conferred
upon the Permanent Court by Article 7 of the Mandate ; for there can be no doubt that the Mandate,
which embodies international obligations, belongs to the category of treaty or convention ; I have
endeavoured to show that the agreement between the Mandatory and other Members of the League
embodied in the Mandate is still "in force". The expression "Member of the League of Nations" is
descriptive, in my opinion, not conditional, and does not mean "so long as the League exists and they
are Members of it" ; their interest in the performance of the obligations of the Mandate did not ,accrue
to them merely from membership of the League, as an examination of the content of the Mandate
makes clear. Moreover, the Statute of the International Court empowers it to call from the parties for
"any document" or "any explanations" ; and to entrust any "individual, body, bureau, commission or
other organization that it may select, with the task of carrying out an enquiry..-". Article 94 of the Charter
empowers the Security Council of the United Nations to "make recommendations or decide upon
measures to be taken to give effect to the judgment" of the Court, in the event of a party to a case failing
to carry out a judgment of the Court. In addition, the General Assembly or the Security Council of the
United Nations may request the Court to give an advisory opinion on any legal question (Article 96 of
the Charter).

On the other hand, the administrative supervision by the Council of the League, as advised by the
Permanent Mandates Commission, has lapsed, including the obligation imposed by Article 22 of the
Covenant and Article 6 of the Mandate to make, in the words of the Mandate, "to the Council of the
League of Nations an annual report to the satisfaction of the Council....". This supervision has lapsed
because the League and its Council and Permanent Mandates Commission—the organs which were
designated (i) to receive the reports, (ii) to be satisfied with them and (iii) to examine and advise upon
them—no longer exist, so that it has become impossible to perform this obligation. (When a particular
Mandate was under discussion by the Council, the Mandatory, if not a Member of the Council, was
invited to sit with the Council, with full power of speaking and voting.)

But it was contended on several grounds in the statements submitted by certain governments to the
Court, that the Union of South Africa is nevertheless under an obligation to accept the administrative
supervision of the Mandate by the United Nations, and in particular to send annual reports to that
Organization. I cannot find any legal ground on which the Court would be justified in replacing the
Council of the League by the United Nations for the purposes of exercising the administrative
supervision of the Mandate and the receipt and examin-[p162]ation of reports. It would amount to
imposing a new obligation upon the Union Government and would be a piece of judicial legislation. In
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
116
saying this, I do not overlook the competence of the 7General Assembly of the United Nations, under
Article 10 of the Charter, to discuss the Mandate for South-West Africa and to make recommendations
concerning it, but that competence depends not upon any theory of implied succession but upon the
provisions of the Charter.

For these reasons I am of the opinion that the continuing international obligations of the Union of South
Africa under the Mandate for South-West Africa do not include the obligation to accept the
administrative supervision of the United Nations and to render annual reports to that Organization.

***
Question (b)

I concur in the Opinion of the majority of the Court with respect to this question.

***
Question (c)

That the effect of this Resolution is that the League and those States which were Members of it at the
date of its dissolution consented to any arrangements for the modification of the terms of the Mandate
that might be agreed between the United Nations and the Union Government, and that competence to
determine and modify the international status of the Territory rests with the Union of South Africa acting
with the consent of the United Nations.

{Signed) Arnold D. McNair. [p164]

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
117
4. FILARTIGA VS. PENA-IRALA
DOCTRINE: Torture is a violation of the laws of nation. Therefore, following that the district courts have
jurisdiction if it is in violation of laws of nation or a treaty of the United States, torture may be tried in
the district courts of the United States.
FACTS:
The appellants, plaintiffs below, are citizens of the Republic of Paraguay. Dr. Joel Filartiga, a
physician, describes himself as a longstanding opponent of the government of President Alfredo
Stroessner, which has held power in Paraguay since 1954. His daughter, Dolly Filartiga, arrived in the
United States in 1978 under a visitor’s visa, and has since applied for permanent political asylum. The
Filartigas brought this action in the Eastern District of New York against Americo Norberto Pena-Irala
(Pena), also a citizen of Paraguay, for wrongfully causing the death of Dr. Filartiga’s seventeen-year
old son, Joelito. Because the district court dismissed the action for want of subject matter jurisdiction,
we must accept as true the allegations contained in the Filartigas’ complaint and affidavits for purposes
of this appeal. The appellants contend that on March 29, 1976, Joelito Filartiga was kidnapped and
tortured to death by Pena, who was then Inspector General of Police in Asuncion, Paraguay. Later that
day, the police brought Dolly Filartiga to Pena’s home where she was confronted with the body of her
brother, which evidenced marks of severe torture. As she fled, horrified, from the house, Pena followed
after her shouting, “Here you have what you have been looking for for so long and what you deserve.
Now shut up.” The Filartigas claim that Joelito was tortured and killed in retaliation for his father’s
political activities and beliefs.
Shortly thereafter, Dr. Filartiga commenced a criminal action in the Paraguayan courts against
Pena and the police for the murder of his son, which was not yet decided. Soon after, Filartiga went to
the United States, while Pena also went to the United States. Upon the knowledge of FIlartiga that the
Pena was in the US, Almost immediately, Filartiga caused Pena to be served with a summons and civil
complaint at the Brooklyn Navy Yard, where he was being held pending deportation. The complaint
alleged that Pena had wrongfully caused Joelito’s death by torture and sought compensatory and
punitive damages of $10,000,000. The Filartigas also sought to enjoin Pena’s deportation to ensure his
availability for testimony at trial.
Pena questioned the jurisdiction of the court, while Filartiga contended that the district courts shall have
original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of
nations or a treaty of the United States. The district court, dismiss the case. Thus Filartiga appealed.
ISSUE: WON torture is a violation of the law of nation? And therefore Pena may be tried by the US
courts?
HELD:
YES. The case at bar presents us with a situation diametrically opposed to the conflicted state
of law that confronted the Sabbatino Court. Indeed, to paraphrase that Court’s statement, there are
few, if any, issues in international law today on which opinion seems to be so united as the limitations
on a state’s power to torture persons held in its custody. The United Nations Charter makes it clear that
in this modern age a state’s treatment of its own citizens is a matter of international concern. It provides:
With a view to the creation of conditions of stability and well-being which are necessary for peaceful
and friendly relations among nations, the United Nations shall promote universal respect for, and
observance of, human rights and fundamental freedoms for all without distinctions as to race, sex,
language or religion.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
118
Likewise the Universal Declaration on the Protection of All Person from Being Subject to Torture,
which expressly prohibits any state from permitting the dastardly and totally inhuman act of torture.
Torture, in turn, is defined as “any act by which severe pain and suffering, whether physical or mental,
is intentionally inflicted by or at the instigation of a public official on a person for such purposes as
intimidating him or other persons.” The Declaration goes on to provide that “(w)here it is proved that an
act of torture or other cruel, inhuman or degrading treatment or punishment has been committed by or
at the instigation of a public official, the victim shall be afforded redress and compensation, in
accordance with national law. Thus with this international laws stating the prohibition on torture, the act
of torturing is a violation of the laws of nation. Therefore the district courts has jurisdiction when it is a
matter of violation of laws of nations.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
119
IV. Subjects of International Law

5. CASE CONCERNING RIGHTS OF NATIONALS OF THE UNITED STATES OF AMERICA IN


MOROCCO
Facts:
On October 28, 1950 France instituted this proceeding against the United States of America
concerning the rights of US Nationals in Morocco. The ICJ’s jurisdiction is recognized by both countries
pursuant to Art. 36 of the ICJ’s statute, Economic Co-operation Agreement of 1984 between the two
countries, and to the treaty of French Protectorate in the Shereefian Empire. The issues revolve around
the “most favored nations (MFN)” clauses granted by Morocco to several Western Powers including
“France, Spain, Germany, Great Britain and the United States.” Under the MFN, there is guaranteed
equality of treatment and that there could be no discrimination as between any of the Powers in
Morocco. Under this principle, the US believes that privileges granted to other States, in their respective
treaties, are also incorporated in their own treaty with Morocco.
1. Residential Decree of December 30, 1948
The Sultan of Morocco guaranteed trade rights to several countries. These States, including France,
Spain, Germany, Great Britain and the United States among others, were guaranteed equality of
treatment by virtue of most-favoured-nation clauses in their treaties with Morocco. Economic equality
was reiterated in the Algeciras Conference which established the Act of Algeciras. However, when
France established a Protectorate, the Shereefian Majesty (ruler of Morocco) promulgated a
Residential decree dated September 10, 1939. Article 4 of the Residential Decree provided:
"Goods of French or Algerian origin shipped from France or Algeria, shall for the time being be admitted
without any special formalities."
Another Residential Decree was issued on Dec. 30, 1948 which provided that imports without officia1
allocation of currency were again subjected to a system of licensing control. But these import
regulations did not apply to France or other parts of the French Union.
Contention of France: In the Convention between France and Germany of November
4th, 1911, concerning the establishment of this Protectorate, Germany the reservation that "the action
of France should secure in Morocco economic equality between the nations". France says that its
protectorate in Morocco is intended to "to prevent any differential treatment of the subjects of the various
Powers.” Other states agreed with the exception of the US.
Contention of US: In the Treaty between the United States and Morocco of September
16, 1836, Article 24, provides "whatever indulgence, in trade or otherwise, shall be granted to any of
the Christian Powers, the citizens of the United States shall be equally entitled to them."
2. Consular Jurisdiction between US citizens
Under the provisions of Article IX of the British Treaty, there was a grant of consular jurisdiction in al1
cases, civil and criminal, when British nationals were defendants. Similarly, in Articles IX, X and XI of
the Spanish Treaty of 1861, civil and criminal jurisdiction was established for cases in which Spanish
nationals were defendants. Spain and Great Britain, in 1914 and 1937, respectively, renounced such
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
120
privileges. The renunciation by Spain in 1914 had no immediate effect upon the United States position
because it was still possible to invoke the provisions of the General Treaty with Great Britain of 1856.
After 1937, however, no Power other than the United States has exercised consular jurisdiction in the
French Zone of Morocco and none has been entitled to exercise such jurisdiction.
Contention of France: the privileges of the nationals of the United States of America in
Morocco are only those which result from the text of Articles 20 and 21 of the Treaty of
September 16th, 1836. There is nothing to justify the granting to the nationals of the United
States of preferential treatment which would be contrary to the provisions of the treaties.
Contention of US: The jurisdiction conferred upon the United States by the Treaties of
1787 and 1836 was, civil and criminal jurisdiction, in al1 cases arising between American citizens. In
addition, the United States acquired in Morocco jurisdiction in al1 cases in which an American citizen
or protégé was defendant through the effect of the most-favored-nation clause and through custom and
usage. Such jurisdiction was not affected by the surrender by Great Britain in 1937 of its rights of
jurisdiction in the French Zone of Morocco. Furthermore, custom and usage gives it a right to be
maintained.
3. US Citizen Exemption from Morrocan Law
US raised this issue to avoid being subject to consumption taxes issued by a Dahir(Moroccan
King’s Decree) of February 28th, 1948. There is no provision in any of the treaties which have been
under consideration in this case conferring upon the United States any such right. The US relies on the
“right of assent” or that their consular jurisdiction extends to the said Dahir.
Contention of France: Article 20 and 21 of the September 16, 1836, treaty does not
include the right of US citizens to be exempt from Moroccan except when the US expressly
consents to it. Article 24 or the “most favored nation” clause may not be invoked.
Contention of US: Under the regime of extraterritorial jurisdiction now exercised by the
United States in Morocco, United States citizens are not subject, in principle, to the application of
Moroccan laws. Such laws become applicable to the United States citizens only if they are submitted
to the prior assent of the United States Government and if this Government agrees to make them
applicable to its citizens.
4. Fiscal immunity of US Citizens
The treaties between Great Britain and Morocco and Spain and Morocco provided that British and
Spanish subjects "shall not be obliged to pay, under any pretense whatever, any taxes or impositions".
The US contends that the by virtue of the MFN, these privileges were also incorporated in their
respective treaty with Morocco.
Contention of France: no treaty has conferred on the United States fiscal immunity for its
nationals in Morocco, either directly or through the effect of the most favored nation” clause. The
laws and regulations on fiscal matters which have been put into force in the Shereefian Empire
are applicable to the nationals of the United States without the prior consent of the US
government.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
121
That the consumption taxes collected from US nationals as provided by the
Dahir(Moroccan King’s Decree) of February 28th, 1948, was legally collected and should not be
refunded to the US.
Contention of US: The treaties exempt American nationals from taxes, except as
specifically provided by the same treaties. Such taxes can legally be collected from American nationals
only with the previous consent of the United States. Taxes already collected should be returned to US
Nationals.

Issues:
1. W.O.N Residential Decree of December 30, 1948 may be applied to the US
2. W.O.N the US is entitled to Consular Jurisdiction between US citizens
3. US Citizen Exemption from Morrocan Law
4. Fiscal immunity of US Citizens

Held:
1. Yes. The Residential Decree of December 30th, 1948, exempted France from control of imports,
while the United States was subjected to such control; it thus involved a discrimination in favor
of France. This differential treatment was not compatible with the Act of Algeciras, by virtue of
which the United States can claim to be treated as favorably as France, as far as economic
matters in Morocco are concerned. The French submissions, that this Decree is in conformity
with the economic system which is applicable to Morocco, must therefore be rejected.

2. Yes, they may have consular jurisdiction between US citizens. The United States is entitled to
exercise such jurisdiction in accordance with the terms of its Treaty with Morocco of September
16th 1836, that is to say, in all disputes, civil or criminal, between citizens or proteges of the
United States.

However, they may NOT exercise consular jurisdiction in the French Zone of Morocco. Art 24 of
the US-Morocco Treaty provides, “whatever indulgence, in trade or otherwise, shall be granted
to any of the Christian Powers, the citizens of the United States shall be equally entitled to them."
In the French, British treaties and Spanish treaties, a similar privilege was found also known as
the capitulatory regime. It came to an end with the termination by Great Britain of all its rights
and privileges of a capitulatory character by the Franco-British Convention of 1937. Thus, there
is no more treaty to invoke such consular jurisdiction since no other nation enjoys such privilege,
the US is no exception.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
122
3. No. There is no provision in any of the Treaties conferring upon the United States such a right.
Furthermore, their contention that it is a right linked with the regime of capitulations may no
longer be invoked [as explained in #2].

If the application of a law to citizens of the United States without its assent is contrary to
international law, any dispute which may arise therefrom should be dealt with according to the
ordinary methods for the settlement of international disputes.

4. No. No treaty provides any basis for the claim of the United States to fiscal immunity for its
citizens. Nor can such an immunity, capitulatory in origin, be justified by the effect of the most-
favored-nation clause, since no other State enjoys it for the benefit of its nationals.

As to the consumption taxes imposed by the Dahir of February 28th. 1948; these are payable
on all goods, whether imported into Morocco or produced there: they are not, therefore, customs
duties, the maximum rate for which was fixed at 12%% by the Signatory Powers of the Act of
Algeciras. Citizens of the United States are no more exempt from these taxes than from any
others.

Digested by: Acosta

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
123
6. TINOCO ARBITRATION CASE

CASE DOCTRINE/ TOPIC:


Succession of States; Continuity of States

Considering the characteristics and attributes of the de facto government, a general government de facto
having completely taken the place of the regularly constituted authorities in the state binds the nation. So
far as its international obligations are concerned, it represents the state. It succeeds to the debts of the
regular government it has displaced and transmits its own obligations to succeeding titular governments.
Its loans and contracts bind the state and the state is responsible for the governmental acts of the de facto
authorities. In general its treaties are valid obligations of the state. It may alienate the national territory and
the judgments of its courts are admitted to be effective after its authority has ceased. An exception to these
rules has occasionally been noted in the practice of some of the states of Latin America, which declare
null and void the acts of a usurping de facto intermediary government, when the regular government it has
displaced succeeds in restoring its control. Nevertheless, acts validly undertaken in the name of the state
and having an international character cannot lightly be repudiated and foreign governments generally insist
on their binding force. The legality or constitutional legitimacy of a de facto government is without
importance internationally so far as the matter of representing the state is concerned (Borchard's The
Diplomatic Protection of Citizens Abroad).

FACTS:
In January 1917, the Government of Costa Rica, under President Alfredo Gonzalez was overthrown by
Frederico Tinoco, the Secretary of War. Tinoco assumed power, called an election, and established a new
constitution in June 1917. His government fell in September 1919. After a provisional government under
Barquero, the old constitution was restored and elections held under it. The restored government is a
signatory to this treaty of arbitration.

On August 22, 1922, the Constitutional Congress of the restored Costa Rican Government passed a law
known as Law of Nullities No. 41. It invalidated all contracts between the executive power and private
persons, made with or without approval of the legislative power between January 27, 1917 and September
2, 1919, covering the period of the Tinoco government. It also nullified the legislative decree No. 12 of the
Tinoco government authorizing the issue of the 15 million colones currency notes. The Nullities Law also
invalidated the legislative decree of the Tinoco government of July 8, 1919, authorizing the circulation of
notes of the nomination of 1,000 colones, and annulled all transactions with such colones bills between
holders and the state, directly or indirectly, by means of negotiation or contract, if thereby the holders
received value as if they were ordinary bills of current issue.

Great Britain claimed that the Royal Bank of Canada and the Central Costa Rica Petroleum Company are
Britain corporations whose shares are owned by British subjects; that the Banco Internacional of Costa
Rica and the Government of Costa Rica are both indebted to the Royal Bank in the sum of 998,000
colones, evidenced by 998 one thousand colones bills held by the Bank; that the Central Costa Rica
Petroleum Company owns, by due assignment, a grant by the Tinoco government in 1918 of the right to
explore for an exploit oil deposits in Costa Rica, and that both the indebtedness and the concession have
been annulled without right by the Law of Nullities and should be excepted from its operation. Great Britain
asks an award that she is entitled on behalf of her subjects to have the claim of the bank paid, and the
concession recognized and given effect by the Costa Rican Government.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
124
The Government of Costa Rica denied its liability for the acts or obligations of the Tinoco government and
maintained that the Law of Nullities was a legitimate exercise of its legislative governing power. It further
denied the validity of such claims on the merits, unaffected by the Law of Nullities.

ISSUE:
1. Is the Tinoco government the only government of Costa Rica de facto and de jure between 1917
to 1919 and that during that time there is no other government disputing its sovereignty, that it was
in peaceful administration of the whole country, with the acquiescence of its people?
2. Can the succeeding government by legislative decree avoid responsibility for acts of that
government (Tinoco government) affecting British subjects, or appropriate or confiscate rights and
property by that government except in violation of international law?

RULING:
1. YES. Tinoco came in with popular approval. While there were oppositions and projected
conspiracies against him, these did not result in any substantial conflict or even a nominal
provisional government on the soil until considerably more than two years after the inauguration of
his government and did not result in the establishment of any other real government until
September of that year, he having renounced his Presidency in August preceding, on the score of
his ill health. and withdrawn to Europe. There is no substantial evidence that Tinoco was not in
actual and peaceable administration without resistance or conflict or contest by anyone until a few
months before the time when he retired and resigned. Likewise, many leading Powers refused to
recognize the Tinoco government, and that recognition by other nations is the chief and best
evidence of the birth, existence and continuity of succession of a government.
The Tinoco Government was recognized by 20 countries. However, US did not recognize its legal
existence. Probably because of the leadership of the United States in respect to a matter of this
kind, her then Allies in the war, Great Britain, France and Italy, declined to recognize the Tinoco
government. The merits of the policy of the United States in this non-recognition is not for the
arbitrator to discuss, for the reason that in his consideration of this case, he is necessarily controlled
by principles of international law, and however justified as a national policy non-recognition on such
a ground may be, it certainly has not been acquiesced in by all the nations of the world, which is a
condition precedent to considering it as a postulate of international law.
Likewise, to hold that a government which established itself and maintained a peaceful
administration, with the acquiescence of the people for a substantial period of time, does not
become a de facto government unless it conforms to a previous constitution would be to hold that
within the rules of international law a revolution contrary to the fundamental law of the existing
government cannot establish a new government. This cannot be, and is not, true. The change by
revolution upsets the rule of the authorities in power under the then existing fundamental law, and
sets aside the fundamental law in so far as the change of rule makes it necessary. To speak of a
revolution creating a de facto government, which conforms to the limitations of the old constitution
is to use a contradiction in terms. The same government continues internationally, but not the
internal law of its being. The issue is not whether the new government assumes power or conducts
its administration under constitutional limitations established by the people during the incumbency
of the government it has overthrown. The question is, has it really established itself in such a way
that all within its influence recognize its control, and that there is no opposing force assuming to be
a government in its place? Is it discharging its functions as a government usually does, respected
within its own jurisdiction? These things Tinoco government did.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
125
2. NO, the contracts cannot be avoided by the subsequent government of Costa Rica because the
contracts were made not between Tinoco government and the Great Britain but between the
Government of Costa Rica and Government of Great Britain. As such, these contracts created
binding legal obligations which Costa Rica must comply with notwithstanding the fact that there
was change in government.

Acts validly undertaken in the name of the state and having an international character cannot lightly
be repudiated and foreign governments generally insist on their binding force. The legality or
constitutional legitimacy of a de facto government is without importance internationally so far as the
matter of representing the state is concerned.

SUBMITTED BY:
Jordan C. Cabandong

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
126
7. DECLARATION ON THE GRANTING OF INDEPENDENCE TO COLONIAL COUNTRIES AND
PEOPLES

Adopted by General Assembly resolution 1514 (XV) of 14 December 1960

The General Assembly,


Mindful of the determination proclaimed by the peoples of the world in the Charter of the United Nations
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal
rights of men and women and of nations large and small and to promote social progress and better
standards of life in larger freedom,
Conscious of the need for the creation of conditions of stability and well-being and peaceful and friendly
relations based on respect for the principles of equal rights and self-determination of all peoples, and
of universal respect for, and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language or religion,
Recognizing the passionate yearning for freedom in all dependent peoples and the decisive role of
such peoples in the attainment of their independence,
A ware of the increasing conflicts resulting from the denial of or impediments in the way of the freedom
of such peoples, which constitute a serious threat to world peace,
Considering the important role of the United Nations in assisting the movement for independence in
Trust and Non-Self-Governing Territories,
Recognizing that the peoples of the world ardently desire the end of colonialism in all its manifestations,
Convinced that the continued existence of colonialism prevents the development of international
economic co-operation, impedes the social, cultural and economic development of dependent peoples
and militates against the United Nations ideal of universal peace,
Affirming that peoples may, for their own ends, freely dispose of their natural wealth and resources
without prejudice to any obligations arising out of international economic co-operation, based upon the
principle of mutual benefit, and international law,
Believing that the process of liberation is irresistible and irreversible and that, in order to avoid serious
crises, an end must be put to colonialism and all practices of segregation and discrimination associated
therewith,
Welcoming the emergence in recent years of a large number of dependent territories into freedom and
independence, and recognizing the increasingly powerful trends towards freedom in such territories
which have not yet attained independence,
Convinced that all peoples have an inalienable right to complete freedom, the exercise of their
sovereignty and the integrity of their national territory,
Solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its
forms and manifestations;

And to this end Declares that:


1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of
fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the
promotion of world peace and co-operation.
2. All peoples have the right to self-determination; by virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural development.
3. Inadequacy of political, economic, social or educational preparedness should never serve as a
pretext for delaying independence.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
127
4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease
in order to enable them to exercise peacefully and freely their right to complete independence, and the
integrity of their national territory shall be respected.
5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories
which have not yet attained independence, to transfer all powers to the peoples of those territories,
without any conditions or reservations, in accordance with their freely expressed will and desire, without
any distinction as to race, creed or colour, in order to enable them to enjoy complete independence
and freedom.
6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of
a country is incompatible with the purposes and principles of the Charter of the United Nations.
7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the
Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-
interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and
their territorial integrity.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
128
8. WESTERN SAHARA CASE

DOCTRINE: Western Sahara at the time of colonization by Spain was not a territory belonging to no
one and the Court considers that, in the relevant period, the nomadic peoples of the Shinguitti country
possessed rights, including some rights relating to the lands through which they migrated. These rights
constituted legal ties between Western Sahara and the Mauritanian entity. They were ties which knew
no frontier between the territories and were vital to the very maintenance of life in the region. The Court
came to the conclusion that there were no legal ties of territorial sovereignty but only legal ties of
allegiance between Western Sahara and the Kingdom of Morocco (by 14 votes to two) and between
Western Sahara and Mauritania (by 15 votes to one).

FACTS: In its Advisory Opinion which the General Assembly of the United Nations had requested on
two questions concerning Western Sahara, first question: "Was Western Sahara (Rio de Oro and
Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)?"
and the second question: "What were the legal ties between this territory and the Kingdom of Morocco
and the Mauritanian entity?”.

The penultimate paragraph of the Advisory Opinion was to the effect that:
The materials and information presented to the Court show the existence, at the time of Spanish
colonization, of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in
the territory of Western Sahara. They equally show the existence of rights, including some rights relating
to the land, which constituted legal ties between the Mauritanian entity, as understood by the Court,
and the territory of Western Sahara. On the other hand, the Court's conclusion is that the materials and
information presented to it do not establish any tie of territorial sovereignty between the territory of
Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found
legal ties of such a nature as might affect the application of General Assembly resolution 1514 (XV) in
the decolonization of Western Sahara and, in particular, of the principle of self-determination through
the free and genuine expression of the will of the peoples of the Territory.

Propriety of Giving an Advisory Opinion:


Spain suggested that due to its lacking → consent the Court should decline to exercise its
competence. The advisory jurisdiction would be used to circumvent the lacking consent which was
required in any dispute settlement and especially in this case where issues of territorial sovereignty
over Western Sahara were at stake. The Court stated that only ‘compelling reasons’ should lead it to
refuse to give a requested advisory opinion. The controversy had arisen during the proceedings of the
UN General Assembly and not in bilateral relations. Furthermore, advisory opinions did not have
binding force and contrary to the circumstances in the case of → Eastern Carelia (Request for
Advisory Opinion) Spain was a member of the UN, a party to the United Nations Charter and the ICJ
Statute and thus subject to the advisory jurisdiction of the Court. The decision would not affect the
rights of Spain but assist the UN General Assembly in its decolonization policy. For the same reason
it was not devoid of object and purpose.

ISSUES:
1) Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the Time of Colonization by Spain a
Territory Belonging to No One (terra nullius)?
2) In accordance with the terms of the request for advisory opinion, "if the answer to the first question
is in the negative", the Court is to reply to Question II.
*Question II: What Were the Legal Ties of This Territory with the Kingdom of Morocco and the
Mauritanian Entity?
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
129
ICJ RULING:
1. The Court gave a negative answer to Question I.
- decided by 13 votes to 3 to comply with the request for an advisory opinion;
- was unanimously of opinion that Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of
colonization by Spain was not a territory belonging to no one (terra nullius).

The Court answered the first question in the negative. It initially held that ‘time of colonization by
Spain’ meant the period beginning in 1884 when Spain proclaimed a protectorate over the Rio de
Oro. Therefore, the Court interpreted terra nullius by referring to the law in force at that time
(Intertemporal Law). It held that state practice of the relevant time indicated that territories
inhabited by tribes or peoples having a social and political organization were not regarded as terra
nullius. The Court found that Western Sahara was at the time of colonization by Spain inhabited by
peoples which were socially and politically organized in tribes and under chiefs competent to
represent them and thus was not terra nullius.

In law, "occupation" was a means of peaceably acquiring sovereignty over territory otherwise than by
cession or succession; it was a cardinal condition of a valid "occupation" that the territory should be
terra nullius. According to the State practice of that period, territories inhabited by tribes or peoples
having a social and political organization were not regarded as terrae nullius: in their case sovereignty
was not generally considered as effected through occupation, but through agreements concluded with
local rulers. The information furnished to the Court shows (a) that at the time of colonization Western
Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes
and under chiefs competent to represent them; (b) that Spain did not proceed upon the basis that it
was establishing its sovereignty over terrae nullius: thus in his Order of 26 December 1884 the King
of Spain proclaimed that he was taking the Rio de Oro under his protection on the basis of
agreements entered into with the chiefs of local tribes.

2. The Court came to the conclusion that there were no legal ties of territorial sovereignty but only legal
ties of allegiance between Western Sahara and the Kingdom of Morocco (by 14 votes to two) and
between Western Sahara and Mauritania (by 15 votes to one). The legal ties of allegiance, however,
were not of a nature that could affect the process of decolonization of Western Sahara and the
application of UNGA Resolution 1514 (XV) of 14 December 1960 as well as the principle of self-
determination.

The meaning of the words "legal ties" must be understood as referring to such legal ties as may affect
the policy to be followed in the decolonization of Western Sahara. The Court cannot accept the view
that the ties in question could be limited to ties established directly with the territory and without
reference to the people who may be found in it.

After having dealt with the evidence brought by Morocco to substantiate its legal ties of territorial
sovereignty with Western Sahara on the basis of an alleged immemorial possession, the Court denied
any such legal ties. Referring to the Eastern Greenland Case of the Permanent Court of International
Justice (PCIJ) the Court stated that a claim to sovereignty based upon continued display of authority
involved the two elements of ‘intention and will to act as sovereign’ and ‘some actual exercise
or display of such authority’. Due to the lack of evidence of actual display of authority of Morocco
relating to Western Sahara the Court held these preconditions not fulfilled. As to Morocco’s specific
evidence relating to the time of colonization, the Court saw the alleged acts of internal sovereignty,
such as the imposition of taxes in the territory, as not proven and other acts as relating to areas situated
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
130
within present-day Morocco itself. International acts such as treaties of Morocco with Spain and Great
Britain invoked to display recognition of the Moroccan Sultan’s sovereignty in Western Sahara were
equally rejected as merely being evidence of ties of allegiance or of personal influence regarding some
of the nomadic tribes of the territory or of evidence of the acceptance of the Sultan’s interest in that
area rather than recognition of existing sovereignty.

Since there did not exist, at the time of Western Sahara’s colonization, a Mauritanian State, the Court
confined itself to examine, with regard to Mauritania, legal ties other than those of State sovereignty.
The Court held that the ‘Mauritanian entity’, identical with the so-called Shinguitti country, did not enjoy
any form of sovereignty since ‘it did not have the character of a personality or corporate entity distinct
from the several emirates and tribes which composed it’. However, the nomadic peoples of this region
had in the relevant period possessed rights, eg concerning grazing pastures, cultivated land, and wells
in Western Sahara and the ‘Mauritanian entity’ alike which constituted legal ties between these two
territories. The Court considers that, in the relevant period, the nomadic peoples of the Shinguitti
country possessed rights, including some rights relating to the lands through which they migrated.
These rights constituted legal ties between Western Sahara and the Mauritanian entity. They were ties
which knew no frontier between the territories and were vital to the very maintenance of life in the
region.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
131
9. INTERNATIONAL STATUS OF SOUTH WEST AFRICA
ICJ, ADVISORY OPINION, JULY 11, 1950

DOCTRINE:
The normal way of modifying the international status of the Territory would be to place it under the
Trusteeship System by means of a Trusteeship Agreement, in accordance with, the provisions of
Chapter XII of the Charter

FACTS:

The Territory of South-West Africa was one of the German overseas possessions in respect of which
Germany, by Article 119 of the Treayy of Versailles renounced all her rights and titles in favour of the
Principal Allied and Associated Powers. After the war of 1914-1918 this Territory was placed under a
Mandate conferred upon the Union of South Africa which was to have full power of administration and
legislation over the Temtory as an integral portion of the Union. The Union Government was to exercise
an international function of administration on behalf of the League, with the object of promoting the well-
being and development of the inhabitants.

After the second world war, the Union of South Africa, alleging that the Mandate given by the League
of Nation had lapsed, sought the recognition of the United Nations to the integration of the Territory in
the Union. The United Nations refused their consent to this integration and invited the Union of South
Africa to place the Territory under ‘trusteeship’, according to the provisions of Chapter XII of the Charter.

ISSUE:

What is the international status of the Territory of South-West Africa and what are the international
obligations of the Union of South Africa arising therefrom, in particular:

(a) Does the Union of South Africa continue to have international obligations under the Mandate for
SouthWest Africa and, if so, what are those obligations?

(b) Are the provisions of Chapter XII of the Charter applicable and, if so, in what manner, to the Territory
of South-West Africa?

(c) Has the Union of South Africa the competence to modify the international status of the Territory of
SouthWest Africa, or, in the event of a negative reply, where does competence rest to determine and
modify the international status of the Territory?

HELD:

South-West Africa is still to be considered a territory held under the Mandate of December 17, 1920.

A. The international obligations assumed by the Union of South Africa were of two kinds. One kind was
directly related to the administration of the Territory and corresponded to the sacred trust of civilization
referred to in article 22 of the Covenant; the other related to the machinery for implementation and was
closely linked to the supervision and control of the League. It corresponded to the "securities for the
performance of this trust" referred, to in the Same Article.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
132
The obligations of the first group represent the very essence of the sacred trust of civilization. Their
raison d'etre and original object remain. Since their fulfilment did not depend on the existence of the
League of Nations, they could not be brought to an end merely because this supervisory organ ceased
to exist. This view is confirmed by Article 80, paragraph 1 of the Charter, maintaining the rights of States
and peoples and the terms of existing international instruments until the territories in question are
placed under the trusteeship system. Moreover, the resolution of the League of Nations of April 18,
1946, said that the League's functions with respect to mandated territories would come to an end; it did
not say that the Mandates themselves came to an end.

By this Resolution the Assembly of the League of Nations manifested its understanding that the
Mandates would continue in existence until "other arrangements" were established and the Union of
South Africa, in declarations made to the League of Nations as well as to the United Nations, had
recognized that its obligations as under the Mandate continued after the of the League' Interpretation
placed upon legal instruments by the parties to them, tough not conclusive as to their meaning, have
considerable probative value when they contain recognition by a party of its own obligations under an
instrument.

In regards to the second obligation, the obligation incumbent upon a Mandatory State to accept
international supervision and to submit reports is an important part of the Mandates System. It could
not be concluded that the obligation to submit to supervision had disappeared merely because the
supervisory organ had ceased to exist, when the United Nations had another international organ
performing similar, though not identical, supervisory functions.

B. Yes, the provisions of Chapter XII of the Charter are applicable to the territory of South-West Africa.
With regards to the manner in which those provisions are applicable, the Court said that the provisions
of this chapter did not impose upon the Union of South Africa an obligation to put the territory under
trusteeship by means of a Trusteeship agreement. This opinion is based on the permissive language
of Art 75 and 77. These Articles refer to an ‘agreement’ which implies con set of the parties concerned.
The facts that Art 77 refers to the ‘voluntary’ placement of certain Terittories under Truesteeship does
not show that the pacing of other territories under trusteeship is compulsory.

C. With regard to question (c) the Court decided that the Union had no competence to modify
unilaterally the international status of the Territory. It repeated that: the normal way of modifying the
international status of the Territory would be to place it under the Trusteeship System by means of a
Trusteeship Agreement, in accordance with ,the provisions of Chapter XII of the Charter.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
133
10. LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF SOUTH
AFRICA IN NAMIBIA (SOUTH-WEST AFRICA) NOTWITHSTANDING SECURITY COUNCIL
RESOLUTION 276 (1970)
DOCTRINE: Member States of the United Nations are bounded by its mandates and violations or
breaches results in a legal obligation on the part of the violator to rectify the violation and upon the other
Member States to recognize the conduct as a violation and to refuse to aid in such violation.
FACTS:
Under a claim of right to annex Namibia, South Africa occupied its territory in violation of a United
Nations (U.N.) Security Council Mandate which though later terminated due to South Africa’s breach,
empowered the Security Council to enforce its terms.
Under a claim of right to annex the Namibian territory and under the claim that Namibia’s nationals
desired South Africa’s (D) rule, South Africa (D) began the occupation of Namibia. South Africa was
subject to a U.N. Mandate prohibiting Member States from taking physical control of other territories
because it was a Member State of the United Nations.
The Resolution 2145 (XXI) terminating the Mandate of South Africa (D) was adopted by the U.N and
the Security Council adopted Resolution 276 (1970) which declared the continuous presence of South
Africa (D) in Namibia as illegal and called upon other Member States to act accordingly. An advisory
opinion was however demanded from the International Court of Justice.
ISSUE:
Are mandates adopted by the United Nations binding upon all Member States so as to make breaches
or violations thereof result in a legal obligation on the part of the violator to rectify the violation and upon
other Member States to recognize the conduct as a violation and to refuse to aid in such violations?
HELD:
The following is the summary of the Court’s decision:
1. That, the continued presence of South Africa in Namibia being illegal, South Africa is uncler
obligation to withdraw its administration from Namibia immediately and thus put an end to its
occupation of the Temtory;
2. That States Members of the United Nations are under obligation to recognize the illegality of
South Africa's presence in Namibia and the invalidity of its acts on behalf of or concerning
Namibia, and to refrain from any acts and in particular any dealings with the Government of
South Africa implying recognition of the legality of, or lending support or assistance to, such
presence and administration;
3. That it is incumbent upon States which are not Members of the United Nations to give assistance,
within the scope of subparagraph (2) above, in the action which has been taken by the United
Nations with regards to Namibia

What are the mandates?


The mandates were established during the League of Nations but continued to take effect during
the establishment of the United Nation. The mandates are based on two principles: principle of
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
134
non-annexation and principle that the well-being and the development of peoples concerned
formed the sacred trust of civilization. The ultimate goal of the sacred trust is self-determination
and independence.
Member States of the United Nations are bounded by its mandates and violations or breaches results
in a legal obligation on the part of the violator to rectify the violation and upon the other Member States
to recognize the conduct as a violation and to refuse to aid in such violation. As Member States, the
obligation to keep intact and preserve the rights of other States and the people in them has been
assumed.
So when a Member State does not toll this line, that State cannot be recognized as retaining the rights
that it claims to derive from the relationship. In this particular case, the General Assembly discovered
that South Africa (D) contravened the Mandate because of its deliberate actions and persistent
violations of occupying Namibia.
Hence, it is within the power of the Assembly to terminate the Mandate with respect to a violating
Member State, which was accomplished by resolution 2145 (XXI) in this case. The resolutions and
decisions of the Security Council in enforcing termination of this nature are binding on the Member
States, regardless of how they voted on the measure when adopted. South Africa (D) is therefore bound
to obey the dictates of the Mandate, the resolution terminating it as to South Africa (D), and the
enforcement procedures of the Security Council.
Once the Mandate has been adopted by the United Nations, it becomes binding upon all Member
States and the violations or breaches of this Mandate result in legal obligations on the part of the violator
to rectify the violation, and upon the other Member States to recognize the conduct as a violation and
to refuse to aid in such violation.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
135
11. REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE U.N.

FACTS:
The United Nations (UN) requested an advisory opinion from the International Court of Justice (ICJ) on
two primary questions. First, it asked whether, when an agent of the UN is injured while performing
duties relating to an individual State, the UN may bring an international claim against the State’s
government for damages caused to either the UN or to the victim. In the event of an affirmative answer
to the first question, the UN also requested an answer on the following question: when both the UN and
an individual State have an interest in the same international claim, does the UN’s interest in bringing
the claim outweigh the State’s interest in either providing diplomatic protection for its offending national,
or bringing the claim itself, depending on the factual circumstances present?:

Background:
The story of the ICJ’s Reparation for Injuries Advisory Opinion is made up of three parts, although the
Court’s opinion concentrates on only one. This is the story of a Swedish diplomat and his death in 1948;
a lost opportunity for Israeli-Arab relations; and the rise of the United Nations as a pivotal international
organization. Count Folke Bernadotte’s murder was a tragedy because of his previous heroics. But the
case before the ICJ as a consequence of that murder provided a critical link for the further development
of international law.

REPARATIONS FOR INJURIES: COUNT BERNADOTTE


Count Folke Bernadotte of Wisburg, a relative of King Gustaf of Sweden, had rescued more than 30000
prisoners from German concentration camps in World War II through mediation. As vice-chairman of
the Swedish Red Cross, he freed many Jews, but Bernadotte’s status of a hero among the Jewish
people was short-lived. The newly formed United Nations had appointed Bernadotte as the mediator in
the first Israeli-Arab conflict, with Israel fighting for independence. With his first partition plan,
Bernadotte angered many extremist forces within Israel. He came to be seen as an enemy of Israel,
and was assassinated in Jeruzalem at point blank range by the Jewish group LEHI. This group included
Yitzhak Shamir, who would become Prime Minister of Israel in the 1980s. Count Bernadotte is now an
icon in Swedish and diplomatic history.

CAPACITY TO MAKE A CLAIM


Because Bernadotte was in the service of the United Nations, the new organization sought to improve
security for its agents like Bernadotte. One avenue is the ability to hold someone or something
responsible for injuries suffered by the organization or its agents, and extract reparations. Bu whether
the UN was able to do so, like states, was unclear. The UN General Assembly (UNGA) asked the
International Court of Justice for an advisory opinion on the issue. Did the UN have the capacity to
make an international claim to demand reparations when a state is responsible for injuries to one of its
agens in the performance of its duties? The question was asked in the abstract, but in essence, the

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
136
UNGA asked whether the UN could make an international claim against Israel as the responsible
government for the death of Count Bernadotte.

ISSUES:

THE REQUIREMENTS OF INTERNATIONAL LIFE


In order to answer the question, the Court had to basically determine the status of the UN in he
international legal system in 1948? Is it on the same level as sovereign states? Does the UN have the
international legal personality? Only if it does, can the UN make a claim. The court first determined that
the subjects of law ’are not necessarily identical in nature or in the extent of their rights (…).’ That was
the first opening. Besides states, other entities can be subjects of international law. The extent of their
rights depends on the nature of those other entities, and ’their nature depends on the international
community’. Legal pragmatism at its finest. And it gets better:
”Throughout its history, the development of international law has been influenced by the requirements
of international life, and the progressive increase in the collective activities of States has already given
rise to instances of action upon the international plane by certain entities which are not States.”

HELD/RULING:

EFFECTIVENESS
But that still didn’t answer the question. The next step was an examination of the nature of the UN.
First, the Court determined that the UN is a general organization with broad tasks and powers. What it
concluded on that basis is worth quoting in full:

”In the opinion of the Court, the Organization was intended to exercise and enjoy, and is in fact
exercising and enjoying, functions and rights which can only be explained on the basis of the
possession of a large measure of international personality and the capacity to operate upon an
international plane. (…) It must be acknowledged that its Members, by entrusting certain
functions to it, with the attendant duties and responsibilities, have clothed it with the
competence required to enable those functions to be effectively discharged.”

So, in order for the UN to be effective, the UN’s founders must have ’clothed it’ with legal personality,
and so it such legal personality. You can question whether the Court means to say that legal personality
must be assumed in order to be effective, or that it must be assumed because the founder’s must have
found it necessary to be effective. In any case, the Court was being pragmatic and idealistic at the
same time.This principle of effectiveness has been with the law of international organizations
ever since.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
137
Count Bernadotte is not mentioned once in the Reparation for Injuries Opinion. But ultimately, Israel
agreed to pay the United Nation 19.500 pounds, and did so in 1950. The family of Count Bernadotte
did not file a claim against Israel, the assassins were never caught, and the Israeli-Arab conflict
continues to this day. And the United Nations and international organizations in general became a
permanent fixture in the international legal and political arenas.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
138
12. LIBYA ARAB JAMAHIRIYA V. USA
(Lockerbie Case, ICJ Reports, 1988)

i. Article 36 of the International Court of Justice Statute:


1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially
provided for in the Charter of the United Nations or in treaties and conventions in force.
2. The states parties to the present Statute may at any time declare that they recognize as compulsory
ipso facto and without special agreement, in relation to any other state accepting the same obligation,
the jurisdiction of the Court in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an international
obligation;
d. the nature or extent of the reparation to be made for the breach of an international obligation.

3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the
part of several or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall
transmit copies thereof to the parties to the Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice
and which are still in force shall be deemed, as between the parties to the present Statute, to be
acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they
still have to run and in accordance with their terms.
6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the
decision of the Court.
ii. “Dispute” is defined as a disagreement on appoint of law or fact, a conflict of legal views or of
interest between two persons.
To constitute a dispute, no actual breach or harm is necessary.

Facts:
On December 21, 1988, Pan American Flight 103 took off from London’s Heathrow Airport on
its translantic flight to John F. Kennedy Airport in New York. At 6:56 PM EST, at an altitude of 10,000
metres, the Maid of the Seas made its last contact with ground control. Seven minutes later, the green
cross-hair at air traffic control spilt into five bright blips as the aircraft exploded in midair. Laden with
bodies of passengers and crew, rained down on the people of Lockerbie, Scotland. Within the hour,
243 passengers, 16 crewmembers and 11 townspeople were dead.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
139
Between January 1989 and November 1991, a joint US-Scottish team tracked down leads in 50
countries, questioned 14,0000 people, and combed some 845 square miles of country side around
Lockerbie.
The fruits of their search: (1) a shard of circuit board smaller than a fingernail, (2) a fragment of an
explosive timer embedded in an article of clothing, and (3) a few entries in a private diary.
These three pieces of physical evidence led investigators to two Libyan nationals: Abdelbaset Ali
Mohmed Al Megrahi and Al Amin Khalifa Fhimah. Libya’s involvement was confirmed with a forensic
discovery of a tiny microchip of the bomb’s trigger mechanism. This ‘technical fingerprint’ was
embedded in a shirt that had come from the suitcase containing the bomb. The most significant link
came from two Libyan intelligence agents arrested in Senegal in 1988. At the time of their arrest, they
were discovered carrying Semtex (plastic explosive) and several triggering devices.

Legal Action and Libya’s Response


Informal extradition requests were forwarded through the Belgian Embassy to Tripoli. Two weeks
later, the United States and United Kingdom issued a joint declaration in which they demanded that
Libya:
1. Surrender for trial all those charged with the crime; and accept responsibility for the actions of
Libyan officials;
2. Disclose all it knows of the crime, including the names of all those responsible, and allow full
access to all witnesses, documents and other material evidence, including all the remaining
timers; and
3. Pay appropriate compensation.

The Libyan Government refused to grant extradition, asserting that such an act constituted direct
interference in Libya’s internal affairs. Later, Libya started its own judicial investigation. The competent
authorities in Libya began criminal proceedings, and the examining magistrate ordered the two
suspects to be taken into custody. Libya then went a step further by offering to admit both US and UK
observers, or in the alternative, to have the International Court of Justice determine which state had
proper jurisdiction.
On November 18, 1991, the Libyan authorities issued a statement indicating that the indictment
documents had been received from the US and the UK and that, in accordance with the applicable
rules, a Libyan Supreme Court judge had already been assigned to investigate the charges. The
statement also, inter alia, asserted the Libyan judiciary’s readiness to cooperate with all legal authorities
concerned in the UK and the US.
Ten days later, the Libyan Government issued a communiqué in which it stated that the application
made by the US and the UK would be investigated by the competent Libyan authorities who would deal
with it in a matter that the respected principles of international law, including, on the one hand, Libya’s
sovereign rights and, on the other, the need to ensure justice both for the accused and for the victims.
In the meantime, the Libyan investigating judge took steps to request the assistance of the authorities
in the UK and the US, offering to travel to these countries in order to review the evidence and cooperate
with his US and UK counterparts.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
140
These offers were rejected. The two requests were sent to the US Secretary of States and the UK
Foreign Secretary by their Libyan counterpart, in which the latter pointed out that Libya, the US, and
the UK were all parties to the 1971 Montreal Convention. That as soon as the charges were laid against
the two accused, Libya had exercised its jurisdiction over them in accordance with Libyan national law
and with Article 5(3) of the Montreal Convention which obliges each contracting state to establish its
jurisdiction over offences mentioned in the Convention where the alleged offender is present in its
territory and it does not extradite him.
The two letters went on to note that Article 5(3) of the Convention did not exclude any criminal
jurisdiction exercised in accordance with national law. Pursuant to Article 7* of the Convention (aut
dedere aut judicare), the two letters indicated that Libya had already submitted the case to its judicial
authorities and that an examining magistrate had been appointed. The letters then noted that the judicial
authorities of the US and the UK had been requested to cooperate in the matter but, instead, the two
countries had threatened Libya and did not even rule out the use of armed force. Libya maintained that,
by refusing to provide details of its investigation to the competent authorities in Libya, or to cooperate
with them, the US had failed to fulfill the obligation to afford assistance in criminal matters to Libya, as
provided for in Article 11(1)** of the Convention.

*Article 7: “The Contracting state in the territory of which the alleged offender if found, shall, if it does
not extradite him, be obliged, without exception whatsoever and whether or not the offence was
committed in its territory, to submit the case to its competent authorities for the purpose of prosecution.
Those authorities shall take their decision in the same manner as in the case of any ordinary offence
of a serious nature under the law of that State.”

**Article 11: (1) Contracting States shall afford one another the greatest measure of assistance in
connection with criminal proceedings brought in respect of the offences. The law of the State requested
shall apply in all cases. (2) The provisions of paragraph 1 of this Article shall not affect obligations under
any other treaty, bilateral or multilateral, which governs or will govern, in whole or in part, mutual
assistance in criminal matters.”
Issue:
Who has jurisdiction over the matter?
Libya seeks to enforce the obligations of the States, under the Montreal Convention, under which Libya
had the right to investigate the alleged offense and exercise domestic jurisdiction.
The United Kingdom maintained that the Court lacked jurisdiction because there was no dispute
concerning the court interpretation or applications of the Convention, and even if such dispute existed,
the UN Secretary Council Resolutions which required Libya to surrender the two accused prevailed
over the provisions of the Montreal Convention.
Ruling:
The Court held that it had jurisdiction. A “dispute” is defined as a disagreement on appoint of
law or fact, a conflict of legal views or of interest between two persons.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
141
In this case, the parties differed on the question of whether the destruction of the aircraft was governed
by the Montreal Convention. Moreover, the UN Resolutions were adopted after Libya filed its
application. Since admissibility had to be determined as at the date on which the application was filed,
subsequent cognizance of the Supreme Court and the issuance of said resolutions could not remove
any jurisdiction which the Court possessed at the date of filing of the application.

Submitted by: SALONGA

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
142
13. Case concerning Elettronica Sicula S.p.a (ELSI)
United States of America v. Italy

Doctrine:
The parties to a treaty can therein either agree that the local remedies rule shall not apply to claims
based on alleged breaches of that treaty; or confirm that it shall apply. Yet the Chamber finds itself
unable to accept that an important principle of customary international law should be held to have been
tacitly dispensed with, in the absence of any words making clear an intention to do so

Facts:
In 1955, Raytheon (then known as Raytheon Manufacturing Company) agreed to subscribe for 14 per
cent of the shares in Elettronica Sicula S.P.A. Over the period 1956-1967, Raytheon successively
increased its holding of ELSI shares (as well as investing capital in the company in other ways) to a
total holding of 99.16 percent of its shares In April 1963 the name of the company was changed from
Elettronica Sicula S.P.A. to "Raytheon-Elsi S.p.A."; it will however be referred to hereafter as "ELSI".

The remaining shares (0.84 per cent) in ELSI were acquired in April 1967 by Machlett, which was a
wholly-owned subsidiary of Raytheon.

The Raytheon Company ("Raytheon") and The Machlett Laboratories Incorporated ("Machlett"), in
relation to the Italian corporation Raytheon-Elsi S.P.A. (previously Elettronica Sicula S.P.A. (ELSI)),
which was wholly owned by the two United States corporations.

ELSI was established in Palermo, Sicily, where it had a plant for the production of electronic
components; in 1967 it had a workforce of slightly under 900 employees. Its five major product lines
were microwave tubes, cathode-ray tubes, semiconductor rectifiers, X-ray tubes and surge arresters.

During the fiscal years 1964 to 1966 inclusive, ELSI made an operating profit, but this profit was
insufficient to offset its debt expense or accumulated losses, and no dividends were ever paid to its
shareholders. In June 1964, the accumulated losses exceeded one-third of the company's share capital

The Chairman of ELSI, and other senior Raytheon officials, held numerous meetings, between
February 1967 and March 1968, with cabinet-level officials of the Italian Government and of the Sicilian
region, as well as representatives of the Istituto per la Ricostruzione Industriale ("IRI"), the Ente
Siciliano perla Produzione Industriale ("ESPI"), and the private sector. The purpose of these meetings
was stated to be to find for ELSI an Italian partner with economic power and influence and to explore
the possibilities of other govemmental support

The management of Raytheon had formed the view that, "without a partnership with IR1 or other
equivalent Italian Govemmental entity, ELSI would continue to be an outsider to the Italian industrial
community"; such a partnership would, it was thought, "positively influence government decision-
making in economic planning7', and enable ELSI also to secure benefits and incentives under Italian
legislation designed to favour industrial development

However, when it became apparent that the discussions with Italian officials and companies were
unlikely to lead to a mutually satisfactory arrangement to resolve ELSI's difficulties, Raytheon and
Machlett, as shareholders in ELSI, began seriously to plan to close and liquidate ELSI to minimize their
losses.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
143
The balance sheet for the end of September 1967 showed that under Italian law and accounting
principles the book value of ELSI's assets still exceeded its liabilities. However, internal accounting
adjustments in accordance with Rayhteon's accounting policy showed ELSI insolvent. Raytheon
therefore formally declared that it would not subscribe to any additional loans made to ELSI. It was,
however, ready to financially support an orderly liquidation. The Italian authorities pressed ELSI not to
close the plant and promised help. The final decision to close the plant was taken in March 1968.

On 1 April 1968 the Mayor of Palermo issued an order, effective immediately, requisitioning ELSI's
plant and related assets for a period of six months. The order was based on an 1865 law that provided
Italian administrative authorities with the power to "dispose of private property" for reasons of "grave
public necessity." The requisition noted that ELSI's decision to close its plant gave rise "to strikes (both
general and sectional)," aggravated the difficulties of the region, which had been "severely tried" by
recent earthquakes, and created a "touchy" situation in which "unforeseeable disturbances of public
order could take place." The order also stated that ELSI's plan spurred a public reaction that "strongly
stigmatized" the action and caused the local press to be "very critical toward the authorities" and to
accuse them of "indifference."

These conditions, according to the Mayor, created a "grave public necessity and [an] urgency to protect
the general economic public interest."The text of this order, in the translation supplied by the
United States, was as follows :

"The Mayor of the Municipality of Palermo, Taking into consideration that Raytheon-Elsi of Palermo has
decided to close its plant located in this city at Via Villagrazia, 79, because of market difficulties and
lack of orders;

On April 2, 1968, ELSI's management surrendered control of the plant and assets to the Mayor of
Palermo. Surprisingly, the Mayor did not then keep the plant open and regularly operating. Workers
were allowed to enter the plant premises, but production largely remained at a standstill.

On 9 April 1968 ELSI addressed a telegram to the Mayor of Palermo, with copies to other Government
authorities, claiming (inter alia) that the requisition was illegal and expressing the company's intention
to take al1 legal steps to have it revoked and to claim damages. On 12 April 1968 the company served
on the Mayor a forma1 document dated 1 1 April 1968 inviting him to revoke the requisition order.

The Mayor did not respond and the order was not revoked, and on 19 April1968 ELSI brought an
administrative appeal against it to the Prefect of Palermo, who was empowered to hear appeals against
decisions by local governmental officials An administrative appeal brought against the order was not
decided by the Prefect of Palermo until August 22, 1969

On 19 and 20 April 1968 meetings were held between officials of Raytheon and the President of the
Sicilian region, Mr. Carollo, who stated that "the Regional and Central Governments had reached
agreement to form a management company with IR1 participation to operate ELSI" and invited
Raytheon to join the management company. The proposal would have entailed the contribution by ELSI
of new capital and its assuming complete responsibility for past debts

On 26 April 1968 the Chairman of the Board of ELSI wrote to Mr. Carollo formally rejecting the proposa1
for participation in the new management Company; in his view the proposa1 "was a temporary
caretaker measure which would not solve the fundamental problem, namely keeping ELSI in Sicily and
making it a viable and vital industry", and that it "would only aggravate ELSI's critical financial condition".
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
144
The letter continued : "We are therefore forced to file [a] voluntary petition for bankruptcy, as required
by Italian law

A decree of bankruptcy was issued by the Tribunale di Palermo on 16 May 1968, and a Palermo lawyer
was appointed curatore (trustee in bankruptcy).

The Italian Minister of Industry, Commerce and Crafts announced to the Parliament that the Italian
government intended to take over ELSI's plant through a subsidiary of the government-owned
conglomerate, Istituto per la Ricostruzione Industriale (IRI). On November 13, 1968, the government
stated that an entity of IRI would acquire ELSI's plant. The following month, IRI formed a new subsidiary,
Industria Elettronica Telecommunicazioni S.p.A. (ELTEL), to take over ELSI's plant and assets.

The bankruptcy court began its efforts to liquidate ELSI soon after the formation of ELTEL. The first
auction of ELSI's plant and equipment occurred on January 18, 1969, with a minimum bid of five billion
lire (U.S. $8,000,000). No buyers appeared at the auction. On March 22, the bankruptcy court held a
second auction, adding ELSI's inventory to the assets for sale and setting a minimum bid of
approximately 6.2 billion lire (U.S. $ 9,957,000). Again, no buyers appeared. Shortly after this auction,
ELTEL proposed to the trustee that it be allowed to lease and reopen the plant for eighteen months.
The trustee recommended this course of action, and the judge agreed to grant ELTEL the lease. In
April 1969, ELTEL proposed to the trustee that it be allowed to buy ELSI's work-in-progress -- material
left on the production lines -- for 105 million lire (U.S. $168,000). The bankruptcy court approved the
sale.

On May 3, the bankruptcy court held the third auction of ELSI's plant, equipment, and inventory for the
same price as the first auction. For a third time, no buyers appeared. On May 27, ELTEL offered to buy
the remaining plant, equipment, and supplies for four billion lire (U.S. $6,400,000). With the approval
of the creditors' committee, the bankruptcy court scheduled a fourth auction on these terms, and the
sale was consummated.

Not surprisingly, the United States and Italy had two very different views of what was going on during
the bankruptcy process. The United States asserted that by its acts -- delaying the bankruptcy sale by
imposing a six-month requisition, allowing the local work force to occupy the plant, and announcing its
intention to take over the plant -- Italy had essentially scared off potential buyers, producing a
bankruptcy sale that greatly benefitted Italy's own corporate entity. The United States presented
evidence, particularly during the oral proceedings, regarding the likelihood of a European company
purchasing ELSI's product lines either together or individually.

Italy countered that the United States was advancing an absurd conspiracy theory, envisioning a
coordinated effort by numerous central and local government officials over a protracted period. Italy
contended that the lack of participation in the bankruptcy auctions proved the low value of ELSI,
implying that only the Italian government's willingness to purchase ELSI permitted any recovery in the
bankruptcy process at all.

Forty days after ELTEL purchased ELSI's plant and equipment, the Prefect of Palermo ruled on the
appeal of the Mayor's decision to requisition the plant. The Prefect declared the requisition illegal, as it
could not have achieved its stated purposes, such as preventing labor unrest by keeping the plant
operating. This ruling later formed a cornerstone of the United States case, inasmuch as the principal
standards in judging adherence to the treaty obligations. The United States saw the Prefect's decision
as an admission of the arbitrary nature of the requisition by an official of the Italian government.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
145
The Mayor appealed the Prefect's decision to both the Italian Council of State and the President of
Italy. This appeal was dismissed on the ground that the Mayor lacked standing to appeal a decision of
the Prefect.

Based on the Prefect's decision, ELSI's trustee brought suit in the Court of Palermo against the local
and national Italian governments. The trustee sought damages for the injuries that the requisition
caused to ELSI and to its creditors. The alleged injuries arose from the decrease in the value of ELSI's
plant and equipment during the requisition period, and from ELSI's inability to dispose of the plant and
equipment during that period.

The District Court of Palermo denied the trustee's claim for compensation. On appeal, however, the
Court of Appeal of Palermo awarded compensation of 114 million lire (U.S. $171,000) for the lost use
and possession of ELSI's plant and assets during the six-month requisition period. Often referred to by
the United States as a "rental" payment, this compensation made no provision for the decline in value
due to the inability to dispose of ELSI's plant and equipment during the requisition period. The Supreme
Court of Appeals, the highest competent Italian court, upheld this decision on appeal.

As the appeals were reaching their unsuccessful conclusion, Raytheon sought help from the United
States government in "espousing" the claim as an injury to the United States under international law.
On February 7, 1974, the United States presented Italy with a diplomatic note advancing a claim "based
upon the illegal actions and interferences by Italian authorities contrary to treaty provisions, Italian law,
and international law which precluded an orderly liquidation under the laws of Italy of ELSI, S.p.A."

Although some limited discussions took place between United States and Italian officials from 1974 to
1978, Italy did not respond formally to this diplomatic note until the summer of 1978. By an aide-
mémoire of June 13, 1978, Italy rejected the claim as groundless, stating, "The records show that the
order of seizure, even though unlawful, did not cause damage to the shareholders."

The United States continued its efforts to resolve the claim through diplomatic communications,
including unsuccessful discussions held during a May 1979 meeting in Rome between United States
Secretary of State Vance and Italian Foreign Minister Forlani. Ultimately, the United States determined
to resolve the dispute through a third-party dispute settlement mechanism. From 1981 to 1985, the
United States presented diplomatic notes to Italy seeking to submit the claim to binding arbitration.

In 1985, the parties met in Rome and agreed that instead of arbitration, the United States would submit
the dispute to the ICJ. On October 7, 1985, the United States announced that it had agreed with Italy
to bring the dispute before "a special chamber as provided by the Court's Statute and rules of
procedure, subject to mutually satisfactory resolution of implementing arrangements."

On February 6, 1987, the United States filed its application instituting proceedings before the ICJ. The
parties subsequently filed two rounds of pleadings: the United States Memorial (May 15, 1987), the
Italian Counter--Memorial (November 16, 1987), the United States Reply (March 19, 1988), and the
Italian Rejoinder (July 18, 1988). Upon considering the views of the parties, the ICJ formed a Chamber
of five judges to hear the case

The United States argued before the Chamber that Raytheon undertook extensive efforts to improve
ELSI's financial performance by enhancing its administrative efficiency and by upgrading the plant
facilities. Nevertheless, according to the United States, the real key to making ELSI successful lay in
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
146
overcoming an inherent competitive disadvantage vis-à-vis Italian-owned company by securing an
Italian investment partner with economic power and political influence. In doing so, ELSI would gain the
support of the national and regional governments, which granted certain benefits to businesses
operating in southern Italy. The United States argued that when Raytheon's efforts to obtain such an
Italian partner failed, ELSI lost all ability to provide a return.

Morse, the United States argued that the requisition was an unlawful, arbitrary act taken by political
authorities to appease public opinion. The United States noted that on March 31, 1968, the President
of the Sicilian Region had met with ELSI's Managing Director to inform him that the Italian government
would not allow ELSI to close, since a closure would produce significant unemployment just before the
national elections of May 1968. Furthermore, the United States introduced as evidence several
comments made by officials of the Italian government before and after the requisition stating that the
government wished to take over ELSI itself rather than allow its liquidation.

The United States further argued that Raytheon quickly recognized that it would not be permitted to
place ELSI through an orderly liquidation. Without the constant infusion of funds from Raytheon, ELSI
could no longer meet its financial obligations as they came due, and unless ELSI's board of directors
was willing to incur possible personal liability for ELSI's debts, ELSI had no choice under Italian law but
to declare bankruptcy..

Italy in its Counter-Memorial, objects in the admissibility of the present case on the ground of an alleged
failure of the two United States corporations, Raytheon and Machlett, on whose behalf the United States
claim is brought, to exhaust the local remedies available to them in Italy.

The United States now questions whether the rule of the exhaustion of local remedies could apply at
al1 to a case brought under Article XXVI of the FCN Treaty. That Article, it was pointed out, is
categorical in its terms, and unqualified by any reference to the local remedies rule; and it seemed right,
therefore, to conclude that the parties to the FCN Treaty, had they intended the jurisdiction conferred
upon the Court to be qualified by the local remedies rule in cases of diplomatic protection, would have
used express words to that effect

Issue:
1. Whether exhaustion of local remedy should apply
2. If the answer in question number 1 is in the affirmative, whether local remedies were, or were not,
exhausted by Raytheon and Machlett

Held:
1. Yes. The Chamber has no doubt that the parties to a treaty can therein either agree that the local
remedies rule shall not apply to claims based on alleged breaches of that treaty ; or confirm that it shall
apply. Yet the Chamber finds itself unable to accept that an important principle of customary
international law should be held to have been tacitly dispensed with, in the absence of any words
making clear an intention to do so. This part of the United States response to the Italian objection must
therefore be rejected.

The United States further argued that the local remedies rule would not apply in any event to the part
of the United States claim which requested a declaratory judgment finding that the Friendship,
Commerce and Navigation Treaty (FCN Treaty) had been violated. The argument of the United States
is that such a judgment would declare that the United States own rights under the FCN Treaty had been
infringed; and that to such a direct injury the local remedies rule, which is a rule of customary
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
147
international law developed in the context of the espousal by a State of the claim of one of its nationals,
would not apply.

The Chamber, however, has not found it possible in the present case to find a dispute over alleged
violation of the FCN Treaty resulting in direct injury to the United States, that is both distinct from, and
independent of, the dispute over the alleged violation in respect of Raytheon and Machlett. The case
arises from a dispute which the Parties did not "satisfactorily adjust by diplomacy"; and that dispute
was described in the
1974 United States claim made at the diplomatic level as a "claim of the Government of the United
States of America on behalf of Raytheon Company and Machlett Laboratories, Incorporated".

2. No. On the basis that the local remedies rule does apply in this case, this Judgment may now turn
to the question whether local remedies were, or were not, exhausted by Raytheon and Machlett

The damage claimed in this case to have been caused to Raytheon and Machlett is said to have
resulted from the "losses incurred by ELSI's owners as a result of the involuntary change in the manner
of disposing of ELSI's assets" : and it is the requisition order that is said to have caused this change,
and which is therefore at the core of the United States complaint. It was, therefore, right that any local
remedy against the Italian
authorities, calling in question the validity of the requisition of ELSI's plant and related assets, and
raising the matter of the losses said to result from it, should be pursued by ELSI itself.

In any event, both in order to attempt to recover control of ELSI's plant and assets, and to mitigate any
damage flowing from the alleged frustration of the liquidation plan, the first step was for ELSI - and only
ELSI could do this - to appeal to the Prefect against the requisition order. After the bankruptcy, however,
the pursuit of local remedies was no longer a matter for ELSI's management but for the trustee in
bankruptcy

After the trustee in bankruptcy was appointed, he, acting for ELSI, by no means left the Italian
authorities and courts unoccupied with ELSI's affairs. It was he who, under an Italian law of 1934,
formally requested the Prefect to make his decision within 60 days of that request; which decision was
itself the subject of an unsuccessful appeal by the Mayor to the President of Italy. On 16 June 1970,
the trustee, acting for the bankrupt ELSI, brought a suit against the Acting Minister of the Interior and
the Acting Mayor of Palermo,

It is pertinent to note that this claim for as it came before the Court of Palermo in the action brought by
the trustee, was described by that Court as being based (inter alia) upon the argument of the trustee in
bankruptcy "that the requisition order caused an economic situation of such gravity that it immediately
and directly triggered the bankruptcy of the company"

Similarly the Court of Appeal of Palermo had to consider whether there was a "causal link between the
requisition order and the company's bankruptcy". It is thus apparent that the substance of the claim
brought to the adjudication of the Italian courts is essentially the claim which the United States now
brings before this Chamber. The arguments were different, because the municipal court was applying
Italian law, whereas this Chamber applies international law; and, of course, the parties were different.
Yet it would seem that the municipal courts had been fully seized of the matter which is the substance
of the Applicant's claim before the Chamber. For both claims turn on the allegation that the requisition,
by frustrating the orderly liquidation, triggered the bankruptcy, and so caused the alleged losses.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
148
With such a deal of litigation in the municipal courts about what is in substance the claim now before
the Chamber, it was for Italy to demonstrate that there was nevertheless some local remedy that had
not been tried; or at least, not exhausted. This burden Italy never sought to deny. It contended that it
was possible for the matter to have been brought before the municipal courts, citing the provisions of
the treaties themselves, and alleging their violation. This was never done. In the actions brought before
the Court of Palermo, and subsequently the Court of Appeal of Palermo, and the Court of Cassation,
the FCN Treaty and its Supplementary Agreement were never mentioned

Where the determination of a question of municipal law is essential to the Court's decision in a case,
the Court will have to weigh the jurisprudence of the municipal courts, and "If this is uncertain or divided,
it will rest with the Court to select the interpretation which it considers most in conformity with the law"

In the present case, however, it was for Italy to show, as a matter of fact, the existence of a remedy
which was open to the United States stockholders and which they failed to employ. The Chamber does
not consider that Italy has discharged that burden.

It is never easy to decide, in a case where there has in fact been much resort to the municipal courts,
whether local remedies have truly been "exhausted". But in this case Italy has not been able to satisfy
the Chamber that there clearly remained some remedy which Raytheon and Machlett, independently
of ELSI, and of ELSI's trustee in bankruptcy, ought to have pursued and exhausted.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
149
14. NAURU VS. AUSTRALIA

Facts:
On May 19, 1989 the Government of the Republic of Nauru filed an application instituting proceedings
against Australia in respect of a dispute over the rehabilitation of certain phophate lands in Nauru
worked out prior to Nauruan independence. According to Nauru´s submissions, Australia was
responsible for the breach of several international legal obligations, in particular, obligations arising
from the Trusteeship Agreement, the principle of self-determination and the obligation to respect the
right of the Nauruan people to permanent sovereignty over their natural wealth and resources.
Australia maintained that any dispute which arose in the course of the trusteeship between the
Administering Authority and the indigenous inhabitants should be regarded as having been settled by
the very fact of the termination of the trusteeship. That unconditional termination means, according to
Australia, that the parties "have agreed ... to have recourse to some other method of peaceful
settlement" in the sense of Australia´s declaration under Art. 36 para. 2 of the Statute of the Court.
Furthermore, Australia assails the inclusion of New Zealand and the UK as parties to the proceedings.
This two states plus Australia constituted the Administering Authority for Nauru under the Trusteeship
Agreement.

Issue:
WON the Court has jurisdiction over the claims of Nauru

1. The Court rejected the objection on trusteeship as Australia´s declaration only applied to states.
After 31 January 1968, when Nauru acceded to independence, no agreement pursuant to
Australia´s declaration had been pleaded or shown to exist. The Court also rejected Australia´s
objection according to which Nauruan authorities, even before acceding to independence, had
waived all claims relating to rehabilitation of the phophate lands. Australia then argued, without
success, that Nauru´s claim was "inadmissible on the ground that termination of the trusteeship
by the United Nations precluded allegations or breaches of the Trusteeship Agreement from now
being examined by the Court." Furthermore, Australia objected that Nauru raised its claims
regarding rehabilitation of the lands only in 1988, more than 20 years after achieving
independence. The court ultimately ruled that it was for the Court to determine in the light of the
circumstances of each case whether the passage of time rendered an application inadmissible.
Given the nature of relations between Australia and Nauru, Nauru´s application was considered
admissible.

2. The Court then considered the objection by Australia that New Zealand and the United Kingdom
were not parties to the proceedings. Those two states, together with Australia, constituted the
Administering Authority for Nauru under the Trusteeship Agreement, but Australia played a very
special role established by several agreements and by practice. The Court pointed out that third
states were free to apply for permission to intervene in accordance with Art. 62 of the Statute.
But the absence of such a request for intervention, the Court determined, in no way precluded it
from adjudicating upon the claims submitted, provided that the legal interests of the third state
did not form the very subject-matter of the decision. The interests of New Zealand and the United
Kingdom did not constitute the very subject-matter of the judgment. The Court thus, also rejected
Australia´s objection that New Zealand and the United Kingdom were not parties to the
proceedings.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
150
Finally, the Court dealt with Australia´s objection that Nauru´s claim concerning the overseas assets of
the British Phophate Commissioners was a new claim incompatible with Arts. 40 para. 1 and 38 para.
2 of the Statute. The Court found that the preliminary objection raised by Australia on this point was
well founded.
The Court concluded that it had jurisdiction to entertain the application filed by the Republic of Nauru
on 19 May 1989 and that the said application was admissible except as to the claim regarding the
overseas assets of the British Phophate Commissoners.
On September 9, 1993, Nauru and Australia notified the Court that they had reached a friendly
settlement. By order of 13 September 1993, the Court placed on record the discontinuance, by
agreement of the parties, of the proceedings initiated on 19 May 1989 by the Republic of Nauru against
the Commonwealth of Australia and directed that the case be removed from the list

Submitted by ALIH

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
151
15. CASE CONCERNING EAST TIMOR (PORTUGAL V. AUSTRALIA)

Principle of Self-Determination

This is the issue of principle of self-determination, which literally means the right to control one's own
destiny. By virtue of the principle of equal rights and self-determination of people enshrined in the
Charter of the United Nations, all people have the right to determine, without external interference, their
political statute and to pursue their economic, social and cultural development. The International
Covenant on Civil and Political Rights, Part I, Article 1, Paragraph established that ‘All peoples have
the rights of self-determination. By virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural development.'[2]
Self-determination has been established a principle of customary international law as seen in case law
of Western Sahara[3] where the court stated that right of people to self-determination is now a right of
erga omnes.
Principle of Permanent Sovereignty over Natural Resources
The ‘East Timor Treaty violated the General Assembly resolution 1803 (XVII) which is based on a
number of previous UN resolutions. This resolution saw the establishment of the Commission on
permanent sovereignty over natural wealth and resources as a basic constituent of the right to self-
determination. Number of issues were considered when this resolution was drafted, some of which
include;
* The resolution is to ‘encourage international co-operation in the economic development of developing
countries'.
* To establish the sovereign right of every State to dispose of its wealth and its natural resources should
be respected;
* it was based on the recognition of the inalienable right of all States freely to dispose of their natural
wealth and resources in accordance with their national interests, and on respect for the economic
independence of States;
* desirability to promote international co-operation for the economic development of developing
countries, and that economic and financial agreements between the developed and the developing
countries must be based on the principles of equality and of the right of peoples and nations to self-
determination and;
The Principle of Jurisdiction
The International Court of Justice acts as a world court. The Court has a dual jurisdiction: it decides, in
accordance with international law, disputes of a legal nature that are submitted to it by States
(jurisdiction in contentious cases); and it gives advisory opinions on legal questions at the request of
the organs of the UN.

The very basic essence of sovereignty is existence of a state as an international entity where the state
has authority and power over all property and persons within its territory. No external powers, including
the United Nation, under Charter 2 (7) can enforce jurisdiction over a sovereign state, without its
approval, exception being cases on issues related to Human rights.
Therefore, a fundamental principle of its International Court of Justice's (PCIJ) is that it cannot decide
a dispute between States without the consent of those States to its jurisdiction[11]. This principle,
reaffirmed in the Judgment given by the Court in the case concerning Monetary Gold[12] case and
confirmed in several of its subsequent decisions.
The PCIJ in the case law of Lotus[13] stated that ‘the first and foremost restriction imposed by imposed
by International law upon a state is that - failing the existence of a permissive rule to the contrary - it
may not exercise its power in any form in the territory of another state'. To do so, it must have be
expressly permitted by the state in concern. The jurisdiction of a state within its own territory is absolute.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
152
FACTS:
Portugal had instituted proceedings against Australia concerning "certain activities of Australia with
respect to East Timor" on 22 February 1991.
Portugal acted as the administering Power over East Timor in accordance with Chapter XI of the
Charter of the United Nations.
Portugal claimed that Australia, by the conclusion of a Treaty of "Cooperation in an area between the
Indonesian Province of East Timor and Northern Australia of 11 December 1989", had failed to observe
the obligation to respect the powers and duties of Portugal as the administering Power of East Timor,
as well as the right of the people of East Timor to self-determination and the related rights. Australia,
according to Portugal's allegations, had thereby incurred international responsibility vis-à-vis both the
people of East Timor and Portugal, which claimed to have remained the administering Power according
to several resolutions of the General Assembly and the Security Council, even though it had left East
Timor definitely when Indonesia invaded East Timor in 1975. As the basis of jurisdiction Portugal
referred to the declarations of both States according to Art. 36 paragraph 2 of the Statute.
Australia objected to the jurisdiction of the Court and the admissibility of the application. Australia
argued that the Court was confronted with a situation comparable to that in the Monetary Gold Case,
namely that the Court would have to decide on the lawfulness of Indonesia's entry into and continuing
presence in East Timor as well as the lawfulness of the conclusion of the Treaty, what could not be
done in the absence of Indonesia. While Portugal agreed in principle on this point, it disagreed that the
Court had in fact to decide on the aforementioned questions. Portugal argued that the Court had only
to judge upon the objective conduct of Australia, which consisted in having negotiated, concluded and
initiated performance of the 1989 Treaty with Indonesia, and that this question was perfectly separable
from any question relating to the lawfulness of the conduct of Indonesia.

ISSUE:
Whether the Court could decide the case in the absence of Indonesia which had not accepted the
jurisdiction of the Court and was not inclined to intervene in the case.

HELD:
No. In its judgment, however, the Court concluded that Australia's behavior could not be assessed
without first entering into the question of why Indonesia could not lawfully have concluded the 1989
Treaty, while Portugal allegedly could have done so. The Court was of the opinion that the very subject-
matter of the decision would necessarily be a determination of whether Indonesia could or could not
have acquired the power to conclude treaties on behalf of East Timor relating to the resources of its
continental shelf. Such a determination, however, could not be made without the consent of Indonesia.
The Court also rejected Portugal's additional argument that the rights which Australia had allegedly
breached were rights erga omnes and as such permitted Portugal to sue Australia individually,
regardless of whether or not another State had conducted itself in a similarly unlawful manner. The
Court fully shared the assertion of Portugal that the right of peoples to self-determination had an erga
omnes character. Nevertheless, the Court considered that the erga omnes character of a norm and the
principle of consent to the Court's jurisdiction were two different things. Whatever the nature of the
obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its
judgment would imply an evaluation of the lawfulness of the conduct of another State not a party to the
case.
The Court likewise dismissed the argument of Portugal that the United Nations resolutions concerning
the status of Portugal as administering Power were imposing upon all States an obligation not to
recognize any authority of Indonesia over East Timor. The Court found that without prejudice to the
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
153
question of the binding or non-binding nature of these resolutions such an obligation could not be
inferred from those resolutions. Therefore, the Court would have necessarily to rule upon the lawfulness
of Indonesia's conduct as a prerequisite for deciding Portugal's contention that Australia violated its
obligation to respect Portugal's status as administering Power and East Timor's status as a non-self
governing territory and the right of its people to self-determination and to permanent sovereignty of its
natural resources. Thus, the rights and obligations of Indonesia would constitute the very subject-matter
of the case and could only be judged with the consent of Indonesia. Since this consent was lacking,
the Court had to dismiss the case, despite the importance of the questions raised.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
154
16. Admissions Case (CONDITIONS 0F ADMISSION OF A STATE TO MEMBERSHIP IN THE
UNITED NATIONS) Advisory Opinion of 28 May 1948
(UN Charter Article 4 is supplied for reference)
Article 4
1. Membership in the United Nations is open to all other peace-loving states which accept the
obligations contained in the present Charter and, in the judgment of the Organization, are able and
willing to carry out these obligations.
2. The admission of any such state to membership in the United Nations will be effected by a decision
of the General Assembly upon the recommendation of the Security Council.
Facts: The General Assembly of the United Nations asked the Court to give an advisory opinion on the
question concerning the conditions of admission of a State to membership in the United Nations (Article
4 of the Charter).
"Is a Member of the United Nations which is called upon, in virtue of Article 4 of the Charter, to
pronounce itself by its vote, either in the Security Council or in the General Assembly, on the admission
of a State to membership in the United Nations, juridically entitled to make its consent to the admission
dependent on conditions not expressly provided by paragraph 1 of the said Article? In particular, can
such a Member, while it recognizes the conditions set forth in that provision to be fulfilled by the State
concerned, subject its affirmative vote to the additional condition that other States be admitted to
membership in the United Nations together with that State?"
Summary of the ICJs answer (quickie gaming):
First part of the question - negative
Conditions set forth in Article 4:
The candidate must be: SPAAW
1. A State;
2. Peace loving;
3. Must Accept the obligations of the charter;
4. Must be Able to carry out these obligations; and
5. Must be Willing to do so.
General rule: Article 4 is exhaustive.
Exception: The article does not forbid the taking into account of any factor which it is possible
reasonably and in good faith to connect with the conditions laid down. The taking into account of
such factors is implied in the very wide and elastic nature of the conditions. No relevant political factor,
that is to say, none connected with the conditions of admission, is excluded.
Hence, Second part of the question is also in the negative – it is imposing a new condition not connected
with those already set forth.
Held: The Court answered this question in the negative by nine votes to six

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
155
The Court analyzed Article 4, paragraph 1 of the charter. The conditions therein enumerated are five:
a candidate must be (1) a State; (2) peace-loving; (3) must accept the obligations of the Charter; (4)
must be able to carry out these obligations; (5) must be willing to do so. All these conditions are subject
to the judgment of the Organization, i.e., of the Security Council and of the General Assembly and, in
the last resort, of the Members of the Organization. As the question relates, not to the vote, but to the
reasons which a Member gives before voting, it is concerned with the individual attitude of each Member
called upon to pronounce itself on the question of admission.
-Are these conditions exhaustive?
YES. The English and French texts of the provision have the same meaning: to establish a legal rule
which, while it fixes the conditions of admission, determines also the reasons for which admission may
be refused. The term "Membership in the United Nations is open to all other peace-loving States"
indicates that States which fulfil the conditions stated have the qualifications requisite for admission.
The provision would 'lose its significance if other conditions could be demanded. These conditions are
exhaustive, and are not merely stated by way of information or example. They are not merely the
necessary conditions, but also the conditions which suffice.
-It was argued that these conditions represented an indispensable minimum in the sense that political
considerations could be superimposed on them, and form an obstacle to admission.
This interpretation is inconsistent with paragraph 2 of the Article, which provides for "the admission of
any such State." It would lead to conferring on Members an indefinite and practically unlimited power
to impose new conditions; such a power could not be reconciled with the character of a rule which
establishes a close connection between membership and the observance of the principles and
obligations of the Charter and thus clearly constitutes a legal regulation of the question of admission.
If the authors of the Charter had meant to leave Members free to import into the application of this
provision considerations extraneous to the principles and obligations of the Charter, they would
undoubtedly have adopted a different wording.
The Court considers the provision sufficiently clear; consequently, it follows the constant practice of'
the Permanent Court of International Justice and holds that there is no occasion to resort to preparatory
work 'to interpret its meaning. Moreover, the interpretation given by the Court had already been adopted
by the Security Council, as is shown in Article 60 of the Council's Rules of Procedure.
It does not, however, follow from the exhaustive character of Article 4 that an appreciation is precluded
of such circumstances of fact as would enable the existence of the requisite conditions to be verified.
The Article does not forbid the taking into account of any factor which it is possible reasonably and in
good faith to connect with the conditions laid down. The taking into account of such factors is implied
in the very wide and elastic nature of the conditions. No relevant political factor, that is to say, none
connected with the conditions of admission, is excluded.
The conditions in Article 4 are exhaustive and no argument to the contrary can be drawn from paragraph
2 of the Article which is only concerned with the procedure for admission. Nor can an argument be
drawn from the political character of the organs of the United Nations dealing with admission. For this
character cannot release them from observance of the treaty provisions by which they are governed,

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
156
when these provisions constitute limitations on their power; this shows that there is no conflict between
the functions of the political organs and the exhaustive character of the prescribed conditions.
-On the second part of the question, namely, whether a State, while it recognizes that the conditions
set forth in Article 4 are fulfilled by a candidate, can subordinate its affirmative vote to the simultaneous
admission of other States.
The Court Answered in the negative.
Judged on the basis of the rule which the Court adopts in its interpretation of Article 4, such a demand
constitutes a new condition; for it is entirely unconnected with those prescribed in Article 4.
It is also in an entirely different category, since it makes admission dependent not on the conditions
required of applicants, but on extraneous considerations concerning other States. It would, moreover,
prevent each application for admission from being examined and voted on separately and on its own
merits. This would be contrary to the letter and spirit of the Charter.
Submitted by: PABLO, Jason Kervy D.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
157
17. JUDGMENT OF THE NUREMBERG TRIBUNAL

On the 8th August, 1945, the Government of the United Kingdom of Great Britain and Northern Ireland,
the Government of the United States of America, the Provisional Government of the French Republic,
and the Government of the Union of Soviet Socialist Republics entered into an agreement establishing
this Tribunal for the trial of war criminals whose offences have no particular geographical location. In
accordance with Article 5, the following Governments of the United Nations have expressed their
adherence to the Agreement:
Greece, Denmark, Yugoslavia, the Netherlands, Czechoslovakia, Poland, Belgium, Ethiopia, Australia,
Honduras, Norway, Panama, Luxemburg, Haiti, New Zealand, India, Venezuela, Uruguay, and
Paraguay.
It is estimated that there are forty-eight members of the group, that eight of these are dead and
seventeen are now on trial, leaving only twenty-three at the most as to whom the declaration could
have any importance.
The Tribunal consisted of four members (each with an alternate), one appointed by each of the
signatories of the Agreement. The members of the Tribunal were Lord Justice Geoffrey Lawrence,
president, (United Kingdom), Mr Francis Biddle (United States), M. Donnedieu de Vabres (France) and
Major General I.T. Nikitchenko (Soviet Union)
Proceedings before the Tribunal were conducted in the Palace of Justice, Nuremberg, which in normal
times housed the German regional appellate court. The trial began on 20th November 1945 and the
hearing of evidence and the speeches of counsel concluded on 31st August 1946. The Tribunal
delivered its judgment on 1st October 1946.

The Charter of the Tribunal included the following provisions:

Jurisdiction and General Principles


ARTICLE 6
The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and
punishment of the major war criminals of the European Axis countries shall have the power to
try and punish persons who, acting in the interests of the European Axis countries, whether as
individuals or as members of organisations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for
which there shall be individual responsibility:
(a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of
aggression, or a war in violation of international treaties, agreements or assurances, or
participation in a common plan of conspiracy for the accomplishment of any of the
foregoing;

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
158
(b) War crimes: namely, violations of the laws or customs of war. Such violations shall
include, but not be limited to, murder, ill-treatment or deportation to slave labour or for
any other purpose of civilian population of or in occupied territory, murder or ill-treatment
of prisoners of war or persons on the seas, killing of hostages, plunder of public or private
property, wanton destruction of cities, towns or villages, or devastation not justified by
military necessity;
(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and
other inhumane acts committed against any civilian population, before or during the war;
or persecutions on political, racial or religious grounds in execution of or in connection
with any crime within the jurisdiction of the Tribunal, whether or not in violation of the
domestic law of the country where perpetrated.

Leaders, organisers, instigators and accomplices participating in the formulation or execution


of a common plan or conspiracy to commit any of the foregoing crimes are responsible for
all acts performed by any persons in execution of such plan.

ARTICLE 7
The official position of Defendants, whether as Heads of State or responsible officials in
Government Departments, shall not be considered as freeing them from responsibility or
mitigating punishment.

ARTICLE 8
The fact that the Defendant acted pursuant to order of his Government or of a superior shall
not free him from responsibility, but may be considered in mitigation of punishment if the
Tribunal determines that justice so requires.

Extracted below are some observations made by the Tribunal on general issues including state
jurisdiction, the liability of individuals for crimes under public international law, act of state as a defence
and the scope of crimes against humanity as defined in the Charter.]

The Tribunal: ...


The Law of the Charter

The jurisdiction of the Tribunal is defined in the Agreement and Charter, and the crimes
coming within the jurisdiction of the Tribunal, for which there shall be individual responsibility,
are set out in Article 6. The law of the Charter is decisive, and binding upon the Tribunal.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
159
The making of the Charter was the exercise of the sovereign legislative power by the
countries to which the German Reich unconditionally surrendered; and the undoubted right
of these countries to legislate for the occupied territories has been recognized by the civilized
world. The Charter is not an arbitrary exercise of power on the part of the victorious nations,
but in the view of the Tribunal, as will be shown, it is the expression of international law
existing at the time of its creation; and to that extent is itself a contribution to international
law.

The Signatory Powers created this Tribunal, defined the law it was to administer, and made
regulations for the proper conduct of the trial. In doing so, they have done together what any
one of them might have done singly; for it is not to be doubted that any nation has the right
thus to set up special courts to administer law. With regard to the constitution of the court,
all that the defendants are entitled to ask is to receive a fair trial on the facts and law. ...
It was submitted that international law is concerned with the actions of sovereign States, and
provides no punishment for individuals; and further, that where the act in question is an act
of State, those who carry it out are not personally responsible, but are protected by the
doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these
submissions must be rejected. That international law imposes duties and liabilities upon
individuals as well as upon states has long been recognized. ... Crimes against international
law are committed by men, not by abstract entities, and only by punishing individuals who
commit such crimes can the provisions of international law be enforced. ...
The principle of international law, which under certain circumstances, protects the
representatives of a State, cannot be applied to acts which are condemned as criminal by
international law. The authors of these acts cannot shelter themselves behind their official
position in order to be freed from punishment in appropriate proceedings. ...
On the other hand the very essence of the Charter is that individuals have international duties
which transcend the national obligations of obedience imposed by the individual State. He
who violates the laws of war cannot obtain immunity while acting in pursuance of the authority
of the State if the State in authorizing action moves outside its competence under
international law. ...

War Crimes and Crimes Against Humanity


The evidence relating to war crimes has been overwhelming, in its volume and its detail. It
is impossible for this judgment adequately to review it, or to record the mass of documentary
and oral evidence that has been presented. The truth remains that war crimes were
committed on a vast scale, never before seen in the history of war. ...
Prisoners of war were ill-treated and tortured and murdered, not only in defiance of the well-
established rules of international law, but in complete disregard of the elementary dictates of
humanity. Civilian populations in occupied territories suffered the same fate. Whole
populations were deported to Germany for the purposes of slave labor upon defense works,

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
160
armament production and similar tasks connected with the war effort. Hostages were taken
in very large numbers from the civilian populations in all the occupied countries, and were
shot as suited the German purposes. Public and private property was systematically
plundered and pillaged in order to enlarge the resources of Germany at the expense of the
rest of Europe. Cities and towns and villages were wantonly destroyed without military
justification or necessity. ...
The persecution of the Jews at the hands of the Nazi Government has been proved in the
greatest detail before the Tribunal. It is a record of consistent and systematic inhumanity on
the greatest scale. ...
With regard to Crimes Aainst Humanity, there is no doubt whatever that political opponents were
murdered in Germany before the war, and that many of them were kept in concentration camps in
circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale,
and in many cases was organized and systematic. The policy of persecution, repression and murder
of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was
most ruthlessly carried out. The persecution of Jews during the same period is established beyond all
doubt.
To constitute Crimes Against Humanity, the acts relied on before the outbreak of war must have been
in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is
of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily
proved that they were done in execution of, or in connection with, any such crime. The Tribunal
therefore cannot make a general declaration that the acts before 1939 were Crimes Against Humanity
within the meaning of the Charter, but from the beginning of the war in 1939 War Crimes were
committed on a vast scale, which were also Crimes Against Humanity; and in-so-far as the inhumane
acts charged in the Indictment, and committed after the beginning of the war, did not constitute War
Crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore
constituted Crimes Against Humanity.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
161
V. Territory (A.
Modes of Acquisition)
1. Acosta Islands of Las Palmas Case (US v. Netherlands), 2 UN RIAA 829
2. Abong Minquiers and Ecrehos Case, ICJ, 1953
3. Vitorillo Case Concerning Sovereignty Over Pulau Ligitan ICJ, 17 December
and Pulau Sipadan (Indonesia v. Malaysia) 2002
4. Culajara Legal Status of Eastern Greenland, Permanent 5 April 1933
Court of International Justice
5. Sarmiento Case Concerning the Temple of Preah Vihear ICJ, 15 June 1962

(B. UNCLOS)
6. Dadayan Magallona v. Executive Secretary G.R. No. 187167,
16 July 2011
7. Fontanilla Arigo v. Swift G.R. No. 206510,
16 September 2014
8. Mediodia The Corfu Channel Case ICJ, 1949
9. Alih Camouco Case (Panama v. France), 7 February 2000
10. Pelausa M/V Saiga, (St. Vincent & Grenadines v. Guinea) 1 July 1999

11. Dizon Gulf of Maine Case, (Canada v. US) ICJ Reports 1994
12. Manda Southern Blue Fin Tuna Cases (New Zealand and 27 August 1999.
Australia v. Japan, Order on Request for Provisional
Measures

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
162
1. ISLANDS OF LAS PALMAS CASE (U.S. VS. NETHERLANDS), 2 UN RIAA 829
Facts:

The US and Netherlands are both claiming sovereignty over the Islands of Palmas (called
Miangas by Netherlands). Palmas/Miangas is an island located about halfway between Cape San
Augustin (Mindanao, Philippine Islands under US colonial regime) and the most northerly island of the
Nanusa group (Indonesia under the Netherlands East Indies)
On January 23, 1925, both countries, through an exchange of letters, agreed to arbitration by
Permanent Court of Arbitration at The Hague. Pursuant to their agreement, since both countries could
not agree who to select as arbitrator, Max Huber, of Zurich (Switzerland), member of the Permanent
Court of Arbitration was to act as sole arbitrator.

On January 21, 1906 General Leonard Wood, who was then Governor of the Province of Moro,
Philippine Islands, arrived in the island of Palmas and discovered that the Netherlands was claiming
sovereignty over it. Thereafter, the US made a statement that it is part of the Philippine Islands based
on the Treaty of Paris where Spain ceded the Philippine Islands to the US. They allege that “the most
reliable cartographers and authors and even by treaty, particularly the Treaty of Münster of 1648, which
was agreed to by Spain and the Netherlands.” In the said treaty, between Spain and Netherlands, the
latter recognizes the territories conquered by the former. Thus, the US, as successor of Spain in the
Philippine Islands, by virtue thereof, they discovered the islands had sovereignty over it.
In addition, the US maintains that Palmas forms a geographical part of the Philippine islands and by
virtue of the principle of contiguity, it belongs to the Power having the sovereignty over the Philippines.
As a consequence, the US believes that since they are successors of Spain, who had sovereignty over
the island, they no longer have to prove that they exercise actual sovereignty over it.
The Netherlands argues that it has possessed and exercised rights of sovereignty from 1677, or
probably from a date prior even to 1648, to the present day. This sovereignty arose out of conventions
entered into with native princes of the Island of Sangi, establishing the suzerainty of the Netherlands
over the territories of these princes, including Palmas (or Miangas).

Issue: W.O.N the US has sovereignty over the islands of Las Palmas.
Ruling:
No.

Spain could not transfer more rights than she herself possessed. Thus, the US cannot claim
sovereignty. The Netherlands title of sovereignty, acquired by continuous and peaceful display of state
authority during a long period of time going probably back beyond the year 1700, therefore holds good.
Discussion:
Titles of acquisition of territorial sovereignty in present- day international law are either based on:
a) an act of effective apprehension, such as occupation or conquest, or,
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
163
b) cession which presuppose that the ceding and the cessionary Power or at least one of them,
have the faculty of effectively disposing of the ceded territory.
c) natural accretion can only be conceived of as an accretion to a portion of territory where there
exists an actual sovereignty capable of extending to a spot which falls within its sphere of activity.
Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of
a state. This right has as corollary a duty: the obligation to protect within the territory the rights of other
states, in particular their right to integrity and inviolability in peace and in war, together with the rights
which each state may claim for its nationals in foreign territory. Without manifesting its territorial
sovereignty in a manner corresponding to circumstances, the state cannot fulfill this duty.

Practice, as well as doctrine, provides that “continuous and peaceful display of territorial sovereignty”
(peaceful in relation to other States) is as good as a title. Although continuous in principle, sovereignty
cannot be exercised in fact at every moment on every point of territory. The intermittence and
discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or
uninhabited regions are involved, or regions enclosed within territories in which sovereignty is
incontestably displayed or again regions accessible from, for instance, the high seas.

In this case, the US cannot rely on Spain’s cession of the Philippine Islands because Spain did not
exercise sovereignty in Las Palmas. First, Spain was silent on the matter. Second, Spain nor the US
did not provide evidence of exercising actual sovereignty.
If we consider as positive law at the period in question the rule that discovery as such, i.e., the
mere fact of seeing land, without any act, even symbolical, of taking possession, involved ipso jure
territorial sovereignty and not merely an “Inchoate title,” a jus ad rem, to be completed eventually by an
actual and durable taking of possession within a reasonable time, the question arises whether
sovereignty yet existed at the critical date. If Spain had been exercising sovereignty then there should
be evidence of conflict between Spain and the Netherlands.
In any case, it is conclusive that, Spain may have had title to the island upon discovery, but it
failed to maintain it as it did not exercise its authority.
Even admitting that the Spanish title still existed as inchoate in 1898 and must be considered as
included in the cession under Article III of the Treaty of Paris, an inchoate title could not prevail over
the continuous and peaceful display of authority

Re: Contiguity Argument


Although states have in certain circumstances maintained that islands relatively close to their shores
belonged to them in virtue of their geographical situation, it is impossible to show the existence of a
rule of positive international law to the effect that islands situated outside territorial waters should belong
to a state from the mere fact that its territory forms the terra firma (nearest continent or island of
considerable size). Not only would it seem that there are no precedents sufficiently frequent and
sufficiently precise in their bearing to establish such a rule of international law, but the alleged principle
itself is by its very nature so uncertain and contested that even governments of the same state have on
different occasions maintained contradictory opinions as to its soundness. The principle of contiguity,
in regard to islands, may not be out of place when it is a question of allotting them to one state rather
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
164
than another, either by agreement between the parties, or by a decision not necessarily based on law;
but as a rule establishing ipso jure the presumption of sovereignty in favor of a particular state, this
principle would be in conflict with what has been said as to territorial sovereignty and as to the
necessary relation between the right to exclude other states from a region and the duty to display
therein the activities of a state. Nor is this principle of contiguity admissible as a legal method of deciding
questions of territorial sovereignty; for it is wholly lacking in precision and would in its application lead
to arbitrary results.
The Netherlands had actual title because it had exercised authority on the island since 1677.
The East India Company established Dutch sovereignty over the Island of Palmas (or Miangas) as
early as the 17th century, by means of conventions with the princes of Tabukan and Taruna, two native
chieftains of the Island of Sangi, and that sovereignty has been displayed during the past two centuries
The acts of indirect or direct display of Netherlands sovereignty at Palmas (or Miangas), especially in
the 18th and early 19th centuries are not numerous, and there are considerable gaps in the evidence
of continuous display. But apart from the consideration that the manifestations of sovereignty over a
small and distant island, inhabited only by natives, cannot be expected to be frequent, it is not
necessary that the display of sovereignty should go back to a very far distant period. It may suffice that
such display existed in 1898, and had already existed as continuous and peaceful before that date long
enough to enable any Power who might have considered herself as possessing sovereignty over the
island, or having a claim to sovereignty, to have, according to local conditions, a reasonable possibility
for ascertaining the existence of a state of things contrary to her real or alleged rights Thus, the
Netherlands has sovereignty.

Submitted by: Acosta

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
165
2. MINQUIERS AND ECREHOS CASE (FRANCE/UNITED KINGDOM)
The Minquiers and Ecrehos case was submitted to the Court by virtue of a Special Agreement
concluded between the United Kingdom and France on December 29th, 1950. In a unanimous decision,
the Court found that sovereignty over the islets and rocks of the Ecrehos and the Minquiers groups, in
so far as these islets and rocks are capable of appropriation, belongs to the United Kingdom.
The two groups of islets in question lie between the British Channel Island of Jersey and the coast of
France. The Ecrehos lie 3.9 sea miles from the former and 6.6 sea miles from the latter. The Minquiers
group lie 9.8 sea miles from Jersey and 16.2 sea miles from the French mainland and 8 miles away
from the Chausey islands which belong to France. Under the Special Agreement, the Court was asked
to determine which of the Parties had produced the more convincing proof of title to these groups and
any possibility of applying to them the status of terra nullius was set aside. In addition, the question of
burden of proof was reserved: each Party therefore had to prove its alleged title and the facts upon
which it relied. Finally, when the Special Agreement refers to islets and rocks, in so far as they are
capable of appropriation, it must be considered that these terms relate to islets and rocks physically
capable of appropriation. The Court did not have to determine in detail the facts relating to the particular
units of the two groups.
FACTS: The United Kingdom Government derives its title from the conquest of England by William
Duke of Normandy in 1066. The union thus established between England and the Duchy of Normandy,
including the Channel Islands, lasted until 1204, when Philip Augustus of France conquered continental
Normandy. But, his attempts to occupy also the islands having been unsuccessful, the United Kingdom
submitted the view that all of the Channel Islands, including the Ecrehos and the Minquiers, remained
united with England and that this situation of fact was placed on a legal basis by subsequent treaties
concluded between the two countries. The French Government contended for its part that, after 1204,
the King of France held the Minquiers and the Ecrehos, together with some other islands close to the
Continent and referred to the same medival treaties as those invoked by the United Kingdom.

The French Government saw a presumption in favour of French sovereignty in the feudal link between
the King of France, overlord of the whole of Normandy, and the King of England,his vassal for these
territories. In this connection, it relies on a Judgment of the Court of France of 1202, which condemned
John Lackland to forfeit all the lands which he held in fee of the King of France, including the whole of
Normandy. But the United Kingdom Government contends that the feudal title of the French Kings in
respect of Normandy was only nominal. It denies that the Channel Islands were received in fee of the
King of France by the Duke of Normandy, and contests the validity, and even the existence, of the
judgment of 1202. Without solving these historical controversies, the Court considered it sufficient to
state that the legal effects attached to the dismemberment of the Duchy of Normandy in 1204, when
Normandy was occupied by the French, have been superseded by the numerous events which
occurred in the following centuries. In the opinion of the Court, what is of decisive importance is not
indirect presumptions based on matters in the Middle Ages, but the evidence which relates directly to
the possession of the groups.
The French Government invoked the fact that in 1646 the States of Jersey prohibited fishing at the
Ecrehos and the Chausey and restricted visits to the Ecrehos in 1692. It mentioned also diplomatic
exchanges between the two Governments, in the beginning of the nineteenth century, to which were
attached charts on which part of the Ecrehos at least was marked outside Jersey waters and treated

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
166
as res nullius. In a note to the Foreign Office of December 15th, 1886, the French Government claimed
for the first time sovereignty over the Ecrehos.

ISSUE: Who has sovereignty over the disputed islets?

HELD:
Ecrehos
The Court found that none of those treaties (Treaty of Paris of 1259, Treaty of Calais of 1360, Treaty
of Troyes of 1420) specified which islands were held by the King of England or by the King of France.
There are, however, other ancient documents which provide some indications as to the possession of
the islets in dispute. The United Kingdom relied on them to show that the Channel Islands were
considered as an entity and, since the more important islands were held by England, this country also
possessed the groups in dispute. For the Court, there appears to be a strong presumption in favour of
this view, without it being possible however, to draw any definitive conclusion as to the sovereignty over
the groups, since this question must ultimately depend on the evidence which relates directly to
possession.
With regard to the Ecrehos in particular, and on the basis of various medival documents, it held the
view that the King of England exercised his justice and levied his rights in these islets. Those documents
also show that there was at that time a close relationship between the Ecrehos and Jersey.
From the beginning of the nineteenth century, the connection became closer again, because of the
growing importance of oyster fishery. The Court attached probative value to various acts relating to the
exercise by Jersey of jurisdiction and local administration and to legislation, such as criminal
proceedings concerning the Ecrehos, the levying of taxes on habitable houses or huts built in the islets
since 1889, the registration in Jersey of contracts dealing with real estate on the Ecrehos.

Appraising the relative strength of the opposing claims in the light of these facts, the Court found that
sovereignty over the Ecrehos belonged to the United Kingdom.

Miniquiers
With regard to the Minquiers, the Court noted that in 1615, 1616, 1617 and 1692, the Manorial court of
the fief of Noirmont in Jersey exercised its jurisdiction in the case of wrecks found at the Minquiers,
because of the territorial character of that jurisdiction.

Other evidence concerning the end of the eighteenth century, the nineteenth and the twentieth
centuries concerned inquests on corpses found at the Minquiers, the erection on the islets of habitable
houses or huts by persons from Jersey who paid property taxes on that account, the registration in
Jersey of contracts of sale relating to real property in the Minquiers. These various facts show that

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
167
Jersey authorities have, in several ways, exercised ordinary local administration in respect of the
Minquiers during a long period of time and that, for a considerable part of the nineteenth century and
the twentieth century, British authorities have exercised State functions in respect of this group.

The French Government alleged certain facts. It contended that the Minquiers were a dependency of
the Chausey islands, granted by the Duke of Normandy to the Abbey of Mont-Saint-Michel in 1022. In
1784 a correspondence between French authorities concerned an application for a concession in
respect of the Minquiers made by a French national. The Court held the view that this correspondence
did not disclose anything which could support the present French claim to sovereignty, but that it
revealed certain fears of creating difficulties with the English Crown. The French Government further
contended that, since 1861, it has assumed the sole charge of the lighting and buoying of the Minquiers,
without having encountered any objection from the United Kingdom. The Court said that the buoys
placed by the French Government at the Minquiers were placed outside the reefs of the groups and
purported to aid navigation to and from French ports and protect shipping against the dangerous reefs
of the Minquiers. The French Government also relied on various official visits to the Minquiers and the
erection in 1939 of a house on one of the islets with a subsidy from the Mayor of Granville, in continental
Normandy.

The Court did not find that the facts invoked by the French Government were sufficient to show that
France has a valid title to the Minquiers. As to the above-mentioned facts from the nineteenth and
twentieth centuries in particular, such acts could hardly be considered as sufficient evidence of the
intention of that Government to act as sovereign over the islets. Nor were those acts of such a character
that they could be considered as involving a manifestation of State authority in respect of the islets.

In such circumstances, and having regard to the view expressed above with regard to the evidence
produced by the United Kingdom Government, the Court was of opinion that the sovereignty over the
Minquiers belongs to the United Kingdom.

Digested by: Mario Pogi

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
168
3. CASE CONCERNING SOVEREIGNTY OVER PULAU LIGITAN AND PULAU SIGATAN
(INDONESIA V. MALAYSIA)
Dec. 17, 2002
Facts:

Malaysia and Indonesia submitted a dispute on sovereignty over the islands of Pulau Ligitan and Pulau
Sipadan to the ICJ. Both parties prayed that the said islands be adjudged and declared to be under the
sovereignty of the respective nations. When both countries chose to have judges to sit ad hoc in the
case, Indonesia chose Mr. Mohamed Shahabuddeen and Malysia chose the immortal Mr. Gregory
Weeramantry. The Philippines filed a motion to intervene, but was denied, though the petition for
intervention was passed upon in a separate ICJ case. The islands of Ligitan and Sipadan, Pulau
meaning island, obviously, lie off the north east coast of Borneo in the Celebes Sea.
History of the dispute:
Spain
In the 16th century, Spain established itself in the Philippines and sought to extend its influence to the
islands lying further to the south. Towards the end of that century it began to exercise its influence over
the Sulatanate of Sulu.
In 1836, Spain concluded capitulations of peace, protection and commerce with the Sultan of Sulu,
whereby Spain guaranteed its protection to the Sultan of Sulu, “in any of the islands which extend from
the western point of Mindanao (Maguindanao) to Borneo and Paragua (Palawan), with the exception
of Sandakan and the other territories tributary to the Sultan on the island of Borneo.”
In 1851, Spain and the Sultan of Sulu concluded an “Act of Re-Submission” whereby the island of Sulu
and its dependencies were annexed by the Spanish Crown, as confirmed in an 1878 Protocol whereby
the Sultan recognized “as beyond discussion the sovereignty of Spain over all the Archipelago of Sulu
and the dependencies thereof.”

The Netherlands, and by extension Indonesia


In the 17th century, the Netherlands, through the Netherlands East India Company, established itself
on the island of Borneo. The NEIC held considerable commercial interests in the region and exercised
public rights in Southeast Asia under a charter granted to it in 1602 by the Netherlands United
Provinces. By the charter, NEIC was authorized to “conclude conventions with Princes and Powers” of
the region in the name of the States-General of the Netherlands. The conventions mainly involved trade
issues, but they also provided for the acceptance of the Company’s suzerainty, or even a cession of
territory.
The NEIC established itself on Borneo in the 17th-18th centuries, when the Sultan of Berjamasin
exercised influence over large points of southern and eastern Borneo, while the Sultans of Brunei and
Sulu exercised influence over northern Borneo.
The NEIC’s demise led to the transfer of its territorial possessions were transferred to the Netherlands
United Provinces.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
169
During the Napoleonic wars, Great Britain took control of the Dutch possessions in Asia, only to give
most of them back in the London Convention of 1814.
A contract was entered into by the Netherlands and the Sultan of Banjermasin in 1817. Article 5 of the
contract provided for the cession of Berou and all its dependencies to the Netherlands. The cession
was reconfirmed in 1826
Over the following years, the three territories forming the Kingdom of Berou, namely Sambaliung,
Gunungtabur and Bulungan were separated.
In 1834, the Sultan of Bulungan submitted to the authority of the Netherlands East Indies Government.
In the 1850, the Government of the Netherlands East Indies concluded contracts of vassalage with the
sultans of the three kingdoms, under which the territory of the respective kingdoms was granted to them
as a fief. A new contract of vassalage was concluded in 1878, and approved and ratified by the
governor-general of the Netherlands East Indies. The contracts included a long textual description of
the territories.
Great Britain, and by extension Malaysia
Great Britain possessed commercial interests in the area, but had not established settlements on
Borneo until the 19th century.
After the Anglo-Dutch Convention of 1814, the commercial and territorial disputes between GB and the
Netherlands was settled in a new treaty in 1824.
In 1877 the Sultan of Brunei granted Mr. Alfred Dent and Baron von Overbeck a large are of North
Borneo. They also entered into similar agreements with the Sultan of Sulu, who ceded them lands and
territories.
Treaties and Statehood
There were various treaties over the area, including:
a. 1877 and 1885-Spain, Germany, GB
b. 1888-GB creates State of North Borneo
c. 1891 Convention between Netherlands and Great Britain. (really important
for the claims)
d. Treaty of Paris between Spain and America
e. 1903 Confirmation of Cession by Sultan of Sulu
f. 1915 Agreement –GB and the Netherlands, followed by a 1928 agreement
g. 1930-USA and GB convention defining boundary between Philippines and
North Borneo In 1946, the British North Borneo Company ceded its interests to the British
Crown.
In 1963, North Borneo became federated with the States of Malaya as “Sabah”
In the 1960s, both Indonesia and Malaysia began granting oil prospecting licenses off Borneo to foreign
companies.

The current dispute


In 1969, a delimitation agreement regarding the respective continental shelves was reached between

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
170
Indonesia and Malaysia. It did not cover the area lying to the east of Borneo
In 1991, a joint working group was set up to study the situation of Ligitan and Sipadan. However, an
agreement was not reached and the issue was referred to the ICJ. And here we are.

Issues:
Do the islands belong to Indonesia or Malaysia? (Malaysia) Ratio:

Indonesia’s claim in based on the 1891 convention between Great Britain and the Netherlands. It also
relied on effectivites, both Dutch and Indonesian, which it claims confirms its conventional title. It also
said that it could claim sovereignty as successor of the Sultan of Bulungan.
Malaysia claimed that it acquired sovereignty via a chain of transmissions of the title originally held by
the Sultan of Sulu, from Spain to the US to Great Britain to Malaysia. It likewise presented effectivites
over the islands.
In sum,

1. The 1891 agreement relied upon by Indonesia can’t give them sovereignty because of the
disagreements as to interpreting the boundaries defined by it, as well as the map made in relation
to it. It can only define the territory of the parties up to the eastern extremity of Sebatik Island
and not further along, i.e. Ligitan and Sipadan are not included.
2. The alleged uninterrupted chain of transactions concerning the Sultan of Sulu was not proven.
It was also not proven that the Sultan of Sulu held sovereignty over the disputed islands in the
first place

EVIDENCE OF EFFECTIVE OCCUPATION


Having debunked both of the claims, the ICJ moved on to considering the evidence of “effectivités”
presented by both parties. Preliminarily, citing Burkina Faso v. Mali, “a distinction must be drawn among
several eventualities…in the event that the effectivite does no co-exist with any legal title, it must
invariably be taken into consideration.”
Both parties claimed that the effectivites merely confirm a treaty based title. Malaysia also claims that
it acquired title to Ligitan and Sipadan by virtue of continuous peaceful possession and administration
without objection from Indonesia or its predecessors in title.

First, the parties disputed whether effectivites could be presented if they happened after the “critical
date” in 1969 when the dispute began. To resolve this, the ICJ quoted the Eastern Greenland case as
saying “a claim to sovereignty based not upon some particular act or title but merely upon continued
display of authority, involves two elements: the intention and will to act as sovereign, and some actual
exercise or display of such authority.” The extent to which the sovereignty is also claimed by some
other power must also be taken into account.
The ICJ cannot take into consideration acts that have taken place after the critical date when
the dispute crystallized, unless such acts are a normal continuation of prior acts and have not
been undertaken for the purpose of improving the legal position of the party relying on them.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
171
Indonesia:
Indonesia presented the ff. as effectivites:
1. Patrols in the area by vessels of the Dutch Royal Navy, from 1895-1928, particularly the
presence of the Dutch destroyer Lynx in Nov-Dec., 1921.

2. The patrol team of the Lynx went ashore on Sipadan, and a plane carried onboard traversed its
airspace and its waters, while the 3-mile zones of Si Amil and other islands under British
Authority were respected.
3. They also submitted the report by the Commander of the Lynx to show that Dutch authorities
considered the disputed islands to be under Dutch sovereignty, while other islands to the North
were considered as being under British sovereignty.
4. Hydrographic surveys carried out by the Dutch, particularly the surveying carried out by the
vessel Macasser in Oct. and November 1903.

5. Activity of the Indonesian Navy before the dispute started in 1969.


6. The traditional fishing activities of Indonesian fishermen around the islands.
7. Affidavits which provide a record of occasional visits to the islands in the 1950s –early 1970s.

The court ruled that none of these is of a legislative or regulatory character. Also, the court could not
ignore the fact that Indonesian Act no. 4 did not include Ligitan or Sipadan. It also said that the visit of
the Lynx was only there as part of a joint British-Dutch force to combat piray, and it could not deduced
from the visit or from the captain’s log that the Dutch considered Lgiitan and Sipadan as part of the
sovereignty of the Netherlands or Indonesia. Finally, the private persons, i.e. fishermen, could not be
considered effectivite. Indonesia loses.

Malaysia:
1. Claimed that for the first 25 years of its independence, Malaysia showed no interest in Ligitan
and Sipadan.

2. Act no. 4 of Indonesia, enacted on Feb. 18, 1960, defining its outer limits of national waters, did
not use the islands as reference points for the baselines, and the attached map did not include
the islands as part of the territory of Indonesia.
3. Malaysia presented the taking of turtles and collection of turtle eggs on Sipadan as an important
economic activity. As early as 1914, GB took steps to regulate and control it.
4. A licensing system for boats that fished around the island.
5. The 1933 construction of a bird sanctuary on Sipadan
6. Lighthouses built on Ligitan and Sipadan in the early 1960s by British North Borneo authorities.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
172
7. Malaysian Government regulation of tourism, notably scuba diving.

8. The fact that the islands are protected areas under Malaysia’s Protected Areas Order of 1997.

The court found that after the USA relinquished any claim it had over Ligitan and Sipadan in 1930, no
other state asserted its sovereignty over them except North Borneo.
As to the other effectivites, the Court said that the measures taken to regulate and control the collecting
of turtle eggs and the establishment of a bird sanctuary must be seen as regulatory and administrative
assertions of authority over territory specified by name.
However, the building of lighthouses, in line with the doctrine on them, could not be a basis for asserting
sovereignty.
The activities relied upon by Malaysia, both in its own name and as successor State of Great Britain,
are modest in number but that they are diverse in character and include legislative, administrative and
quasi-judicial acts. They cover a considerable period of time and show a pattern revealing an intention
to exercise State functions in respect of the two islands in the context of the administration of a wider
range of islands.
Moreover, at the time when these activities were carried out, neither Indonesia nor the Netherlands,
ever expressed its disagreement or protest. In 1962 and 1963 the Indonesian authorities did not even
remind the authorities of the colony of North Borneo, or Malaysia after its independence, that the
construction of the lighthouses at those times had taken place on territory which they considered
Indonesian; even if they regarded these lighthouses as merely destined for safe navigation in an area
which was of particular importance for navigation in the waters off North Borneo, such behaviour is
unusual.
Malaysia has sovereignty.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
173
4. THE LEGAL STATUS OF EASTERN GREENLAND CASE

DOCTRINE: Dispute between DENMARK and NORWAY regarding the sovereignty over territory in
EASTERN GREENLAND.

The doctrine of intertemporal law states that the crystallisation of a right must be analyzed through the
application of international law as it existed at the point in time when the right arose. Hence, if a dispute
regarding sovereignty over a certain territory arose in the 18th century, international law as it existed
then must be applied to analyze the factual matrix.

Animus occupandi, or animus possidendi is the will to act as sovereign over a particular territory and is
the subjective element of effective occupation and corps possession, the objective element, is the
actual steps that have been taken to further that intention.

Corpus possessionis includes the actual possession and administration over the territory concerned.
Administration has to be for a reasonable period of time though. In the territorial dispute between
Burkina Faso and Mali, the court held that “some twenty years is far too short a time to establish a title”.

FACTS: Greenland inhabited by indigenous Eskimos, was first discovered by Scandinavian explorers
circa 900 A.D. Norwegian origin. Two settlements (Eystribygd and Vestribygd) were found at the
southern end of the western coast and became tributary to Norway. In 1380 – 1814, Kingdoms of
Denmark and Norway were united under the same crown. Hans Edge established the first permanent
colony in 1721. Trading concessions and monopolies were granted and regulations were enacted.
Article 4, Treaty of Kiel, Denmark was forced to cede the Kingdom of Norway to Sweden (excluding
Greenland). AREA OF GREENLAND: 2,175,600 sq/kms [5/6 covered my Inland Ice). East coast
remained virtually inaccessible by land or sea until the expeditions of the 19 th century. In the 19th
century, it was discovered that Greenland was in fact an island, not connected by land.
In 1915, Denmark began to seek explicit recognition of her potential claims to the Eastern Coast of
Greenland.
a. 1st – United States – context of CESSION OF THE DANISH ANTILLES
b. 2nd – Norway – context of Norwegian claims to Spitzbergen at Vesailles Peace Conference
c. 3rd – United Kingdom, France, Italy and Japan
d. 4th – Sweden and Norway

This recognition was given by all those asked except Norway claiming assurances for Norwegian
hunting and fishing interests on the East coast. Denmark was unwilling to give such assurances.
Denmark relied on the verbal undertaking given by the Norwegian Foreign Minister:
“Know all men that DANISH TRADING, MISSION AND HUNTING STATIONS have been
established on the East and West coasts of Greenland with the result that the whole of that
country is henceforth linked up with DANISH colonies and stations under the Authority of the
DANISH ADMIN OF GREENLAND.”
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
174
Norway issued a royal proclamation: Occupation in the Eastern Greenland is officially confirmed and is
placed under Norwegian sovereignty. Denmark wanted the proclamation to be declared in violation of
existing legal situation.

DANISH ASSERTION – Norwegian occupation was INVALID. 3 bases:


1. Denmark had enjoyed and had peacefully and continuously exercised an uncontested sovereignty
over Greenland for a long time.
2. Norway had recognized DANISH sovereignty over the whole Greenland
3. Norway was estopped by QUID PRO QUO, a promise given by the Norwegian foreign minister to
desert occupying any territory in Greenland.

NORWAY: DANISH in Greenland was restricted to areas of its colonies and DENMARK was estopped
from claiming that she possessed such a pre-existing sovereignty.

The Danish Government contended that Norway had given certain undertakings recognizing its
sovereignty over Greenland to the effect.
1 After termination of the Union between Denmark and Norway in 1814, the latter undertook not to
contend the Danish claim of sovereignty over Greenland. PCIJ held that as a result of various
undertaking resulting from the separation and culminating in Article 9 of the convention of
September 1st, 1819, concluded that Norway acknowledged Danish sovereignty and
consequently it cannot occupy of any part thereof.
2 International Agreements: In many bilateral and multilateral agreements concluded between
Denmark and other countries including Norway, Greenland was described as part of Denmark
and has been excluded at the instance of the latter from operation of the agreements. By ratifying
such agreements, it is followed that Norway recognized whole of Greenland as part of Denmark.
3 Ihlen Declaration: One of the bases for the Denmark's claim was the statement made by Foreign
Minister of Norway Mr. Ihlen in July, 1919 would render their claim for sovereignty futile. Norway
contented that his statement would not bind the Norwegian Government as it lacked requisite
authority.

The Danish Minister at Chirstiania under the instruction of Danish Minister for Foreign Affairs on July
12th, 1919 renewed before a Committee constituted at the Peace Conference “for the purpose of
considering the claims that may be put forward by different countries to Spitzbergen” the unofficial
assurance given to the Norwegian Government on April 2nd, 1919 stating that Denmark has no special
interests at stake in Spitzbergen and they would not raise any objections to its claims. At this occasion
the Minister took the liberty and stated that recognition of Denmark's political and economic interest to
the whole of Greenland “would not encounter any difficulties on the part of the Norwegian Government”.
To this Mr. Ihlen, replied by stating that the Plans of the Royal [Danish] Government respecting Danish
sovereignty over the whole of Greenland... would meet with no difficulties on the part of Norway”.
Denmark contented relying on this declaration claimed recognition of an existing Danish sovereignty.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
175
Norway contented that Mr. Ihlen was in error as to the effect of his statement and the consent was
therefore invalid. Norway maintained that Mr. Ihlen had the knowledge of the consequences of
extension of Danish sovereignty i.e., elimination of Norwegian right over fishing and hunting. Therefore,
Mr. Ilhen has not consented to such declaration. The Court did not entertain this argument as Mr. Ihlen's
in ability to foresee the consequences of his actions cannot be a valid ground.

Following are the arguments of Norway:


1 Ihlen's declaration is a mere diplomatic assurance of the benevolent attitude of the
Norwegian Government in the event of subsequent negotiations concerning a definitive
settlement; that
2 A verbal declaration is not internationally binding, especially when it would involve the
renunciation of important national interests; that
3 Ihlen could not bind Norway by such a statement, since international law attaches legal
force only to those acts of a foreign minister which fall within his constitutional competence;
and that
4 The Danish recognition of Norwegian sovereignty over Spitzbergen did not constitute a quid
pro quo, in that Denmark did not possess in Spitzbergen interests comparable to those of
Norway in East Greenland.

ISSUE: Whether or not Sovereignty had been lost

RULING:
PCIJ rejected the argument of Denmark that the declaration is recognition of existing Danish
sovereignty. On careful examination of the circumstances and the words used it cannot be inferred that
the declaration is a definitive recognition of its sovereignty. However, the Court based on the relevant
material concluded that the Norwegian attitude in Greenland and Danish attitude in the Spitzbergen are
interdependent. The affirmative reply by the Minister had the ability of creating a bilateral engagement.
Even if there is no such engagement, what Norway desired from Denmark regarding Spitzbegen is
similar to Denmark's wish from Norway. Hence the reply by Mr. Ihlen on July 22nd, 1919 is definitely
affirmative.

The PCIJ made the reply of Mr. Ihlen binding on the Norwegian Government by stating that: “The Court
considers it beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs on
behalf of his Government in response to a request by the diplomatic representative of a foreign Power,
in regard to a question falling within his province, is binding upon the country to which the Minister
belongs”

However, it is not clear which facts contributed for characterizing it a reply of this nature.

PCIJ by twelve votes to two adjudged that the promulgation by the Norwegian Government on July
10th, 1931 on occupation over Greenland and any steps in furtherance of the declaration would amount
to violation of existing legal situation and are accordingly unlawful and invalid. To ascertain the legal
status of Eastern Greenland, the PCJ relied on the following premises:

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
176
1 The continuous and peaceful exercise of sovereignty over Greenland resulted in the title towards
Denmark.
2 The Court made the Ihlen declaration binding thereby conferring the sovereignty to Denmark.
The Eastern Greenland case has reiterated the principles of International law laid down in Clipperton
Island arbitration and Island of Palmas/Miangas arbitration. Furthermore this has influenced the
decision in the recent case concerning sovereignty over Pulau ligitan and Pulau sipadan, a contentious
case between Indonesia and Malaysia where in the Court ruled in favour of the latter after relying on
the decision and reasoning of the Eastern Greenland case.

DECISION OF THE COURT: the principles of recognition of territorial claims and estoppel in particular,
merit further attention.
1. RECOGNITION
a. The concept of recognition played a part in this case in two ways:
i. first, the effect of recognition of Danish sovereignty over Greenland by third states was
considered, both in the form of incidental 'recognition' in treaties dealing with other matters
and in the more direct form of responses to the explicit request for recognition made by
Denmark between 1915 and 1921;
ii. second, the effect of recognition by Norway of Denmark's claims to the whole area of
Greenland was also considered.
b. France, Japan, Italy, Great Britain and Sweden show that they agreed to recognise that the
Danish sovereignty extended to the whole of Greenland
c. If it does Dot confer title, recognition affords at least in- direct or circumstantial evidence of a
situation of fact, i.e. that a particular state is, because it is regarded by other states as
administering, in fact administering a certain territory.
d. Evidence of the exercise of sovereign rights
e. Denmark possesses sovereignty over Greenland as a whole [and] to the extent that these
treaties constitute evidence of recognition of her sovereignty over Greenland in general
Denmark is entitled to rely upon them.

2. ESTOPPEL
a. In theory either recognition is 'constitutive' or 'declaratory in territorial disputes it may then be
regarded as constitutive of title or declaratory of a pre-existing title.
b. In the context of any individual disputes 'recognition' is perhaps best regarded not as having of
itself substantive legal consequences but as evidence of a factual situation or as creating an
estoppel.
c. Until 1931 there was no claim by ANY STATE other than Denmark to Greenland
d. Norwegian government as undertakings which recognized DANISH over all GREENLAND
i. Holst declaration (Mister of Foreign Affairs) ii.
Bilateral and multilateral agreements
(COLONY)
iii. Ihlen Declaration (Norway debarred herself or under obligation to refrain from contesting a
historic DAHNISH sovereignty

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
177
5. CASE CONCERNING THE TEMPLE OF PREAH VIHEAR (CAMBODIA V. THAILAND) I.C.J.
REPORTS 15 JUNE 1962

Facts

The International Court of Justice delivered judgment, on the issue whether the Temple of Preah Vihear
is situated in territory under the sovereignty of Cambodia, by 9 votes to 3. The International Court of
Justice delivered judgment, on the issue whether Thailand is under an obligation to withdraw any
military or police forces stationed at the Temple, or in its vicinity on Cambodian territory by 9 votes to
3. The International Court of Justice delivered judgment on the issue whether Thailand is under an
obligation to restore Cambodia any objects, which may have been removed from the Temple by Thai
authorities by 7 votes to 5.
Both Cambodia and Thailand submitted claims to the ICJ regarding the disputed territory and
sovereignty of the Temple of Preah Vihear located on the Thai/Cambodian borders. The ICJ heard
arguments from Thai and Cambodian representatives about the disputed land and it’s historical context
found in the map, Annex I to the Memorial of Cambodia, a treaty drawn up and published on behalf of
the Mixed Delimitation Commission of which both Cambodia and Thailand were found to be parties.

Cambodia argued that the Temple was located within the boundaries of the Cambodian territory as
decided by the Thai/Cambodian Mixed Delimitation Commission. As such, Cambodia sought to
force withdraw of Thai troops from the Temple area.
Thailand claims the map Annex I, from which all territory disputes stem, was never officially
approved of by the Thai delegation. Thailand maintains that the French Commission (representing
Cambodia) alone published the map. Thailand further claims that the territory upon which the
Temple sits is Thai, not Cambodian.

Issues:
a. Did Cambodia and Thailand adopt the Annex I map which delimitated the frontier in the Preah
Vihear region, making the document binding?
b. Is Thailand under an obligation to withdraw any military or police forces stationed at the Temple,
or in its vicinity on Cambodian territory?
c. Is Thailand under an obligation to restore Cambodia any objects, which may have been removed
from the Temple by Thai authorities?

Ruling:
a. The Court found that the delimitation line determined by the Franco-Siamese Mixed
Commission is the official border between Cambodia and Thialand. This indicated to the Court
that both Cambodia and Thailand adopted the Annex I map which delimitated the frontier in
the region of the Temple of Preah Vihear. As such, Annex I is binding and Thailand must
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
178
respect the borders established by the document. The Court reasons that Thailand had every
opportunity to contest the borders established by Annex I, but did not, even with ample
knowledge that the Temple would be included within the Cambodian border.

b. The Court held that because Thailand is party to the territorial agreement between Cambodia
and Thailand, it must withdraw troops from the Temple of Preah Vihear, as it is not Thai property.
Because the Temple was clearly labeled on the Annex I map of the territory in question, and
because it clearly sits within Cambodia territory, Thailand could not make the defense that she
had authority to station guards at this location. Further, the Court finds Thailand’s defense
insufficient on all accounts because Thai authorities did not raise questions about Annex I, and
it did not contest the location and ownership of the Temple until 1958, a full 50 years after the
Court established that Thailand consented to the agreement with Cambodian and French
authorities.

The Court rejects Thailand’s claim that Annex I was used only for cartographical reasons
because no other maps were available. The use of Annex I, which clearly marked Temple Preah
Vihear as the property of Cambodia, could have been contested for it’s accuracy with
Cambodian representatives. As Thailand never took such necessary steps to rectify the
cartographical errors, the claim is unfounded.

Principles

a. The international law elements of the case are territorial sovereignty, and the power of treaties.

b. The Court weighed heavily the historical context of the creation of Annex I in making its
judgment. It is clear that the Court found it important to first clarify the frontier lines between
Cambodia and Thailand before deciding the issue of sovereignty. Because one could not be
correctly judged without the other, the principles of subject-matter jurisdiction, temporal
jurisdiction and territorial jurisdiction are all important in this case.

c. The power of treaties held Thailand accountable for the border dispute and allowed Cambodia
to expel Thai forces from the Temple.

Conclusions
The Court’s ruling in this case settled the border dispute between Cambodia and Thailand over
the location of Temple Preah Vihear. Further, the ruling put a freeze on Thailand’s use of troops
in the Cambodian territory as well as proscribed that Thailand return to Cambodia any items
taken from the Temple after the map Annex I was consented upon by both nation.
6. MAGALLONA v. ERMITA, G.R. 187167, August 16, 2011
DOCTRINE:

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
179
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis
maritime space the exclusive economic zone in waters previously part of the high seas. UNCLOS III
grants new rights to coastal States to exclusively exploit the resources found within this zone up to
200 nautical miles. UNCLOS III, however, preserves the traditional freedom of navigation of other
States that attached to this zone beyond the territorial sea before UNCLOS III.

FACTS:
In 1961, Congress passed Republic Act No. 3046 (RA 3046) demarcating the maritime baselines of the
Philippines as an archipelagic State. This law followed the framing of the Convention on the Territorial
Sea and the Contiguous Zone in 1958 (UNCLOS I),codifying, among others, the sovereign right of
States parties over their territorial sea, the breadth of which, however, was left undetermined.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The
change was prompted by the need to make RA 3046 compliant with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS III), which the Philippines ratified on 27 February 1984.
Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of
archipelagic States like the Philippines and sets the deadline for the filing of application for the extended
continental shelf. Complying with these requirements, RA 9522 shortened one baseline, optimized the
location of some basepoints around the Philippine archipelago and classified adjacent territories,
namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as regimes of islands whose
islands generate their own applicable maritime zones.

Petitioners assail the constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522
reduces Philippine maritime territory, and logically, the reach of the Philippine states sovereign power,
in violation of Article 1 of the 1987 Constitution, embodying the terms of the Treaty of Paris and ancillary
treaties, and (2) RA 9522 opens the countrys waters landward of the baselines to maritime passage by
all vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the
countrys nuclear-free policy, and damaging marine resources, in violation of relevant constitutional
provisions.

ISSUE/S:
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to assail the
constitutionality of RA 9522.
3. On the merits, whether RA 9522 is unconstitutional.

HELD:
We hold that (1) petitioners possess locus standi to bring this suit as citizens and (2) the writs of
certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On the merits, we
find no basis to declare RA 9522 unconstitutional.

A. RA 9522 is a Statutory Tool to Demarcate the Countrys Maritime Zones and Continental Shelf Under
UNCLOS III, not to Delineate Philippine Territory
- UNCLOS III has nothing to do with acquisition or loss of territory. UNCLOS III was the
culmination of decades-long negotiations among United Nations members to codify norms regulating
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
180
the conduct of States in the worlds oceans and submarine areas, recognizing coastal and archipelagic
States graduated authority over a limited span of waters and submarine lands along their coasts.On
the other hand, RA 9522 is a baseline law to mark out basepoints along coasts, serving as geographic
starting points to measure. it merely notices the international community of the scope of our maritime
space.
- Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to
delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives
notice to the rest of the international community of the scope of the maritime space and submarine
areas within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over
territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws
in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the
exclusive economic zone (Article 56) and continental shelf (Article 77).

B. RA 9522s Use of the Framework of Regime of Islands to Determine the Maritime Zones of the KIG
and the Scarborough Shoal, not Inconsistent with the Philippines Claim of Sovereignty Over these
Areas
- RA 9522 merely followed the basepoints mapped by RA 3046 and in fact, it increased the Philippines
total maritime space. Further, petitioners argument that the KIG now lies outside Philippine territory
because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section
2 of the law commits to text the Philippines continued claim of sovereignty and jurisdiction over the KIG
and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty
and jurisdiction shall be determined as Regime of Islands under the Republic of the Philippines
consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)

C. Statutory claims over Sabah under RA 5446 Retained


- Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over
Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps
open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided
in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory
of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion
and sovereignty.

D. UNCLOS III and RA 9522 not Incompatible with the Constitutions Delineation of Internal Waters -
As their final argument against the validity of RA 9522, petitioners contend that the law
unconstitutionally converts internal waters into archipelagic waters, hence subjecting these waters to
the right of innocent and sea lanes passage under UNCLOS III, including overflight. Whether referred
to as Philippine internal waters under Article I of the Constitution or as archipelagic waters under
UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward
of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III
affirms this:

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
181
Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their
bed and subsoil.
1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic
baselines drawn in accordance with article 47, described as archipelagic waters, regardless
of their depth or distance from the coast. 2. This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall not in other
respects affect the status of the archipelagic waters, including the sea lanes, or the exercise
by the archipelagic State of its sovereignty over such waters and their air space, bed and
subsoil, and the resources contained therein.
- The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent
passage and sea lanes passage does not place them in lesser footing vis--vis continental coastal States
which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage
through international straits. The imposition of these passage rights through archipelagic waters under
UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters
landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters
subject to their territorial sovereignty. More importantly, the recognition of archipelagic States
archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment
of their islands as separate islands under UNCLOS III. Separate islands generate their own maritime
zones, placing the waters between islands separated by more than 24 nautical miles beyond the States
territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
182
7.ARIGO V SWIFT - GR. No. 206510 September 16, 2014

DOCTRINE:

General Rule: Warships enjoy sovereign immunity from suit as extensions of their flag State,
Art. 31 of the UNCLOS creates an exception to this rule in cases where they fail to comply with
the rules and regulations of the coastal State regarding passage through the latter’s internal
waters and the territorial sea.

Article 31: Responsibility of the flag State for damage caused by a warship or other government ship
operated for non-commercial purposes

The flag State shall bear international responsibility for any loss or damage to the coastal State resulting
from the non-compliance by a warship or other government ship operated for non-commercial purposes
with the laws and regulations of the coastal State concerning passage through the territorial sea or with
the provisions of this Convention or other rules of international law.

FACTS:

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In


December 2012, the US Embassy in the Philippines requested diplomatic clearance for the said vessel
“to enter and exit the territorial waters of the Philippines and to arrive at the port of Subic Bay for the
purpose of routine ship replenishment, maintenance, and crew liberty.” On January 6, 2013, the ship
left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa,
Japan.

On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in
Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran
aground on the northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast
of Palawan. No one was injured in the incident, and there have been no reports of leaking fuel or oil.

Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS
Guardian cause and continue to cause environmental damage of such magnitude as to affect the
provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental,
Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional rights to
a balanced and healthful ecology.

Specifically, petitioners cite the following violations committed by US respondents under R.A.
No. 10067: unauthorized entry (Section 19); non-payment of conservation fees (Section 21); obstruction
of law enforcement officer (Section 30); damages to the reef (Section 20); and destroying and disturbing
resources a(Section 26[g]). Furthermore, petitioners assail certain provisions of the Visiting Forces
Agreement (VFA) which they want this Court to nullify for being unconstitutional.

ISSUE: WON there is an Immunity from Suit?

HELD:

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
183
NO. When its warship entered a restricted area in violation of R.A. No. 10067 and caused
damage to the TRNP reef system, brings the matter within the ambit of Article 31 of the United Nations
Convention on the Law of the Sea (UNCLOS). He explained that while historically, warships enjoy
sovereign immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an
exception to this rule in cases where they fail to comply with the rules and regulations of the coastal
State regarding passage through the latter's internal waters and the territorial sea.

According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of
longstanding policy the US considers itself bound by customary international rules on the "traditional
uses of the oceans" as codified in UNCLOS, as can be gleaned from previous declarations by former
Presidents Reagan and Clinton, and the US judiciary in the case of United States v. Royal Caribbean
Cruise Lines, Ltd.27

The international law of the sea is generally defined as "a body of treaty rules arid customary norms
governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over
maritime regimes. It is a branch of public international law, regulating the relations of states with respect
to the uses of the oceans." The UNCLOS is a multilateral treaty which was opened for signature on
December 10, 1982 at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into
force on November 16, 1994 upon the submission of the 60th ratification.

The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare
clausum) and the principle of freedom of the high seas (mare liberum). The freedom to use the world's
marine waters is one of the oldest customary principles of international law. The UNCLOS gives to the
coastal State sovereign rights in varying degrees over the different zones of the sea which are: 1)
internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the high seas.
It also gives coastal States more or less jurisdiction over foreign vessels depending on where the vessel
is located.

Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises sovereignty,
subject to the UNCLOS and other rules of international law. Such sovereignty extends to the air space
over the territorial sea as well as to its bed and subsoil.

In the case of warships, as pointed out by Justice Carpio, they continue to enjoy sovereign immunity
subject to the following exceptions:

Article 30 Non-compliance by warships with the laws and regulations of the coastal State

If any warship does not comply with the laws and regulations of the coastal State concerning
passage through the territorial sea and disregards any request for compliance therewith which is made
to it, the coastal State may require it to leave the territorial sea immediately.

Article 31

Responsibility of the flag State for damage caused by a warship or other government ship operated for
non-commercial purposes

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
184
The flag State shall bear international responsibility for any loss or damage to the coastal State resulting
from the non-compliance by a warship or other government ship operated for non-commercial purposes
with the laws and regulations of the coastal State concerning passage through the territorial sea or with
the provisions of this Convention or other rules of international law.
Article 32 Immunities of warships and other government ships operated for non-commercial
purposes

With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this
Convention affects the immunities of warships and other government ships operated for noncommercial
purposes. (Emphasis supplied.) A foreign warship's unauthorized entry into our internal waters with
resulting damage to marine resources is one situation in which the above provisions may apply. But
what if the offending warship is a non-party to the UNCLOS, as in this case, the US?

While, the US did not ratify the UNCLOS, we agree with justice Carpio, non-membership in the
UNCLOS does not mean that the US will disregard the rights of the Philippines as a Coastal State over
its internal waters and territorial sea. We thus expect the US to bear "international responsibility" under
Art. 31 in connection with the USS Guardian grounding which adversely affected the Tubbataha reefs.
Indeed, it is difficult to imagine that our long-time ally and trading partner, which has been actively
supporting the country's efforts to preserve our vital marine resources, would shirk from its obligation
to compensate the damage caused by its warship while transiting our internal waters. Much less can
we comprehend a Government exercising leadership in international affairs, unwilling to comply with
the UNCLOS directive for all nations to cooperate in the global task to protect and preserve the marine
environment as provided in Article 197, viz:

Article 197 Cooperation on a global or regional basis

States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or
through competent international organizations, in formulating and elaborating international rules,
standards and recommended practices and procedures consistent with this Convention, for the
protection and preservation of the marine environment, taking into account characteristic regional
features.

In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute.
Although the said treaty upholds the immunity of warships from the jurisdiction of Coastal States while
navigating the latter's territorial sea, the flag States shall be required to leave the territorial waters
immediately if they flout the laws and regulations of the Coastal State, and they will be liable for
damages caused by their warships or any other government vessel operated for non-commercial
purposes under Article 31.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
185
8. CORFU CHANNEL CASE. ICJ 1949 Facts:

On October 22nd, 1946, two British cruisers and two destroyers, coming from the south, entered the
North Corfu Strait. The channel they were following, which was in Albanian waters, was regarded as
safe: it had been swept in 1944 and check-swept in 1945. One of the destroyers, the Saumarez, when
off Saranda, struck a mine and was gravely damaged. The other destroyer, the Volage, was sent to her
assistance and, while towing her, struck another mine and was also seriously damaged. Forty-five
British officers and sailors lost their lives, and forty-two others were wounded.
Following this incident, the United Kingdom (plaintiff) and Albania (defendant) entered into diplomatic
discussions about the right of British ships to pass peacefully through Albanian waters. Albania
maintained that the ships should not pass through without providing prior notification to the Albanian
government. However, the United Kingdom maintained it had a right under international law to
innocently pass through the straits. Between May 15, 1946 and October 22, 1946, the Albanian
government allegedly placed mines in the Corfu Channel in Albanian territorial waters. Albania was at
war with Greece, and the mines were allegedly part of its defense. On October 22nd, British warships
attempted to again pass through the straits, but were destroyed by the mines, with loss of human life.
The United Kingdom brought suit in the International Court of Justice (ICJ) on the ground that Albania
had a duty to warn the approaching British ships of the mines. It sought damages from Albania.
However, Albania argued that its territorial rights had previously been violated by the British ships
passing through its straits on May 15, 1946, and that it was entitled to a satisfaction.
Issue:
Is Albania responsible for the explosions?
Held:
In relation to the first question, the Court finds, in the first place, that the explosions were caused by
mines belonging to the minefield discovered on November 13th. The Albania would have had sufficient
time to notify shipping of the existence of mines, and finds that, even if the mines had been laid at the
last possible moment, in the night of October 21st -22nd, the Albanian authorities could still have
warned ships approaching the danger zone. There was an interval of two hours between when the
British ships were reported by a look-out post and the time of the first explosion. No warning was given,
and the Court held that the omission involve international responsibility for the explosions, and the
damage and loss of human life to which they gave rise.

In the present case both evidence of the Albanian Government’s attitude (its intention to keep a close
watch on its territorial waters, its protest against the passage of the British fleet but not the laying of
mines, its failure to notify shipping of the existence of mines) and the fact that mine-laying would have
been visible to a normal lookout on the Albanian coast, lead the Court to conclude that the laying of the
minefield could not have been accomplished without the knowledge of Albania. The Court then
considers Albania’s obligations in light of this knowledge: The obligations resulting for Albania from this
knowledge are not disputed between the Parties. Counsel for the Albanian Government expressly
recognized that [translation] “if Albania had been informed of the operation before the incidents of
October 22nd, and in time to warn the British vessels and shipping in general of the existence of mines
in the Corfu Channel, her responsibility would be involved.. . .". The obligations incumbent upon the
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
186
Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a
minefield in Albanian territorial waters and in warning the approaching British warships of the imminent
danger to which the minefield exposed them. Such obligations are based, not on the Hague Convention
of 1907, No. VTII, which is applicable in time of war, but on certain general and well-recognized
principles, namely: elementary considerations of humanity, even more exacting in peace than in war ;
the principle of the freedom of maritime communication ; and every State's obligation not to allow
knowingly its territory to be used for acts contrary to the rights of other States. In fact, Albania neither
notified the existence of the minefield, nor warned the British warships of the danger they were
approaching.

By: Tara Mediodia

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
187
9.THE CAMOUCU CASE (PANAMA V. FRANCE)

Facts:
On 16 September 1999, the Camouco left the port of Walvis Bay (Namibia) to engage in longline fishing
in the Southern seas. The Camouco was a fishing vessel flying the flag of Panama. On 28 September
1999, the Camouco was boarded by a French surveillance frigate in the exclusive economic zone of
the Crozet Islands, 160 nautical miles from the northern boundary of the zone.

The procès-verbal of violation stated that the master of the Camouco was involved in unlawful fishing
in the exclusive economic zone of the Crozet Islands under French jurisdiction and failure to declare
entry into the exclusive economic zone of the Crozet Islands. In its order of 8 October 1999, the court
of first instance at Saint-Paul, confirmed the arrest of the Camouco and ordered that the release of the
arrested vessel would be subject to the payment of a bond in the amount of 20,000,000 FF.

The Applicant (Panama) requested the International Tribunal for the Law of the Sea to find that the
French Republic had failed to observe the provisions of the United Nations Convention on the Law of
the Sea (UNCLOS) concerning prompt release of the Master of the vessel Camouco as well as the
vessel itself.

The objection to admissibility by the Respondent was that domestic legal proceedings were currently
pending before the court of appeal of Saint-Denis, whose purpose was to achieve precisely the same
result as that sought by the present proceedings under article 292 of the Convention. The Respondent
argued that the Applicant was incompetent to invoke this procedure as a second remedy against a
decision of a national court and that the Application clearly pointed to a situation of lis pendens which
casts doubt on its admissibility?.

Issue:
WON the bond of 20M FF is reasonable
WON exhaustion of local remedies is required prior to the filing with the International Tribunal

Held:
1. Yes. The Tribunal concluded that the bond of 20 million FF imposed by the French court was
not reasonable. The Tribunal considered that a number of factors were relevant in an
assessment of the reasonableness of bonds. They included the gravity of the alleged offences,
the penalties imposed or imposable under the laws of the detaining State, the value of the
detained vessel and of the cargo seized, the amount of the bond imposed by the detaining State
and its form.

The Tribunal concluded that the bond of 20 million FF imposed by the French court was not
reasonable. It ordered that France should promptly release the Camouco and its Master upon
the posting of a bond of eight million French Francs.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
188
2. No. In the view of the Tribunal, it was not logical to read the requirement of exhaustion of local
remedies into article 292. Article 292 of the Convention was designed to free a ship and its crew
from prolonged detention on account of the imposition of unreasonable bonds in municipal
jurisdictions. Article 292 provided for an independent remedy and not an appeal against a
decision of a national court. No limitation should be read into article 292 that would have the
effect of defeating its very object. Article 292 permitted the making of an application within a
short period from the date of detention and it was not normally the case that local remedies could
be exhausted in such a short period.

Submitted by James Alih

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
189
10. M/V SAIGA (SAINT VINCENT AND THE GRENADINES VS GUINEA)
FACTS: The M/V Saiga was an oil tanker flying the flag of Saint Vincent and the Grenadines. At the
time of the incident with respect to this application, the M/V Saiga served as a bunkering vessel
supplying fuel oil to fishing vessels and other vessels operating off the coast of Guinea. On 27 October
1997, the M/V Saiga, having crossed the maritime boundary between Guinea and Guinea Bissau,
entered the exclusive economic zone of Guinea of the Guinean island of Alcatraz. On 28 October 1997,
the M/V Saiga was arrested by Guinean Customs patrol boats. On the same day the vessel was brought
into Conakry, Guinea, where the vessel and its crew were detained. No bond or other financial security
was requested by Guinean authorities for the release of the vessel and its crew or offered by Saint
Vincent and the Grenadines.
Saint Vincent and the Grenadines stated that the M/V Saiga did not enter the territorial waters of Guinea
and that on 28 October 1997, from 0800 hours, it was drifting at09°00' N and 14°59' W in the exclusive
economic zone of Sierra Leone when it was attackedat about 0911 hours by two Customs patrol boats
of Guinea. Saint Vincent and the Grenadines alleged that the Guinean authorities had no jurisdiction to
take such action, that Guinea failed to notify the flag State of reasons for the detention and that Guinea
did not comply with article 73, paragraph 2, of the Convention according to which “arrested vessels and
their crews shall be promptly released upon the posting of reasonable bond or other security”.
According to the information contained in the Application, the owner of the M/V Saiga is Tabona
Shipping Co. Ltd. c/o Seascot Shipmanagement Ltd., Glasgow, Scotland. The vessel is insured for a
value of approximately 1.5 million United States dollars and was carrying a cargo of approximately
5,000 tons of gasoil of a value of approximately 1 million United States dollars.
On November 13, 1997, the Agent of Saint Vincent and the Grenadines filed in the Registry of the
Tribunal an Application under article 292 of the UNCLOS instituting proceedings against Guinea. Saint
Vincent and the Grenadines submitted that the Tribunal should determine that the vessel, her cargo
and crew be released immediately without requiring that any bond be provided. Nevertheless, the
Applicant was prepared to provide any security reasonably imposed by the Tribunal.
ISSUES:
1.) Whether or not the tribunal has jurisdiction over the case at bar
2.) whether the Application is admissible, that is, whether it falls within the scope of the other
requirements set out in article 292 of the Convention

HELD:
1.) YES.
The Tribunal will commence by considering the question of its jurisdiction under article 292 of the
Convention to entertain the Application. Article 292 of the Convention reads as follows:

Article 292
Prompt release of vessels and crews
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
190
1. Where the authorities of a State Party have detained a vessel flying the flag of another State
Party and it is alleged that the detaining State has not complied with the provisions of this
Convention for the prompt release of the vessel or its crew upon the posting of a reasonable
bond or other financial security, the question of release from detention may be submitted to any
court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the
time of detention, to a court or tribunal accepted by the detaining State under article 287 or to
the International Tribunal for the Law of the Sea, unless the parties otherwise agree.
2. The application for release may be made only by or on behalf of the flag State of the vessel.
3. The court or tribunal shall deal without delay with the application for release and shall deal only
with the question of release, without prejudice to the merits of any case before the appropriate
domestic forum against the vessel, its owner or its crew. The authorities of the detaining State
remain competent to release the vessel or its crew at any time.
4. Upon the posting of the bond or other financial security determined by the court or tribunal, the
authorities of the detaining State shall comply promptly with the decision of the court or tribunal
concerning the release of the vessel or its crew.

In this regard, the Tribunal first notes that Saint Vincent and the Grenadines and Guinea are both States
Parties to the Convention. Saint Vincent and the Grenadines ratified the Convention on 1 October 1993
and Guinea ratified the Convention on 6 September 1985. The Convention entered into force for Saint
Vincent and the Grenadines and Guinea on 16 November 1994. Article 292 of the Convention requires
that an application may be submitted to the Tribunal failing agreement of the parties to submit the
question of release from detention to another court or tribunal within 10 days from the time of the
detention.
Pursuant to article 110 of the Rules of the Tribunal, an application for prompt release of a vessel and
its crew may be made by or on behalf of the flag State of the vessel. In this regard, the Tribunal notes
that on 18 November 1997 a certified copy of the authorization of the Attorney General of Saint Vincent
and the Grenadines on behalf of the Government of Saint Vincent and the Grenadines to the
Commissioner for Maritime Affairs of Saint Vincent
and the Grenadines and the original of the authorization of the Commissioner for Maritime Affairs to the
Agent were submitted to the Registrar and form part of the record. The Tribunal therefore dismisses
the objection of Guinea. As far as the ownership of the vessel is concerned, the Tribunal notes that this
question is not a matter for its deliberation under article 292 of the Convention and that Guinea did not
contest that Saint Vincent and the Grenadines is the flag State of the vessel. For these reasons, the
Tribunal finds that it has jurisdiction under article 292 of the Convention to entertain the Application.

2.) YES.
The proceedings for prompt release of vessels and crews are characterized by the requirement, set out
in article 292, paragraph 3, of the Convention that they must be conducted and concluded “without

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
191
delay” and by the nature of their relationship to domestic proceedings and other international
proceedings.
As regards the relationship of the proceedings under article 292 of the Convention to domestic
proceedings, article 292, paragraph 3, states that the prompt release proceedings shall be “without
prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner
or its crew”. This provision should be read together with the provision of the same paragraph stating
that the Tribunal “shall deal only with the question of release” and with the provision of paragraph 4
according to which “upon the posting of the bond or other financial security determined by the court or
tribunal, the authorities of the detaining State shall comply promptly with the decision of the court or
tribunal concerning the release of the vessel or its crew”. Consequently, this provision means that, while
the States which are parties to the proceedings before the Tribunal are bound by the judgment adopted
by it as far as the release of the vessel and the bond or other security are concerned, their domestic
courts, in considering the merits of the case, are not bound by any findings of fact or law that the
Tribunal may have made in order to reach its conclusions.

In light of the independent character of the proceedings for the prompt release of vessels and crews,
when adopting its classification of the laws of the detaining State, the Tribunal is not bound by the
classification given by such State. The Tribunal can, on the basis of the arguments developed above,
conclude that, for the purposes of the present proceedings, the action of Guinea can be seen within
the framework of article 73 of the Convention. Why does the Tribunal prefer the classification
connecting these laws to article 73 of the Convention to that put forward by the detaining State? The
answer to this question is that the classification as “customs” of the prohibition of bunkering of fishing
vessels makes it very arguable that, in view of the facts referred to in paragraphs 61 and 70 above, the
Guinean authorities acted from the beginning in violation of international law, while the classification
under article 73 permits the assumption that Guinea was convinced that in arresting the M/V Saiga it
was acting within its rights under the Convention. It is the opinion of the Tribunal that given the choice
between a legal classification that implies a violation of international law and one that avoids such
implication it must opt for the latter.
In the case under consideration Guinea has not notified the detention as provided for in article 73,
paragraph 4, of the Convention. Guinea has refused to discuss the question of bond and the ten-day
time-limit relevant for the application for prompt release has elapsed without the indication of willingness
to consider the question. In the circumstances, it does not seem possible to the Tribunal to hold Saint
Vincent and the Grenadines responsible for the fact that a bond has not been posted. For these
reasons, the Tribunal finds that the application is admissible, that the allegations made by Saint Vincent
and the Grenadines are well founded for the purposes of these proceedings and that, consequently,
Guinea must release promptly the M/V Saiga and the members of its crew currently detained or
otherwise deprived of their liberty.

FULL TEXT OF THE CASE:


https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_1/judgment_041297_eng.pdf
Submitted by: Steph Pelausa

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
192
11. CASE CONCERNING THE DELIMTATION OF THE MARITIME BOUNDARY IN THE GULF OF
MAINE (1994)

Facts:

On 29 March 1979, Canada and the United States of America signed a Special Agreement by which
the Parties decided to refer to the Court a long-standing dispute between them concerning the maritime
delimitation of the fisheries zones and continental shelf in the Gulf of Maine. The proceedings were
instituted on 25 November 1981 by the filing of a Special Agreement with the International Court of
Justice. The Agreement called upon the Court to decide upon the conflicting claims in accordance with
"the principles and rules of international law applicable in the matter as between the Parties". (Canada
and U.S. asked the Court to delimit both the continental shelf and exclusive fishing zone in the Gulf of
Maine area using only a single boundary.)

The Parties agreed that the starting point of the delimitation (44o 11’ 12” N, 67o 16’ 46” W), called point
A, was the first point of intersection of the two lines representing the limits of the fishing zones claimed,
respectively, by Canada and the United States when they decided upon the extension of their fisheries
jurisdiction up to 200 nautical miles.

The two Parties agreed at the outset that the Gulf of Maine area had two parts, which the United States
characterized as its "interior" and "exterior" components and Canada referred to as its "inner" and
"outer" portions. There was also early agreement that the continental shelf of the Gulf of Maine area is
part of a single, uninterrupted North American Atlantic seaboard and that its geological structure is
"essentially continuous".
The applicable principles and rules of international law. (What are the rules, methods applicable?)
Principles under Article 6 of Continental Shelf Convention. Any delimitation of the continental shelf
effected unilaterally by one State, regardless of the views of the other/s concerned, is in international
law not opposable to those States. States have a duty to negotiate with a view to reaching an agreement
and to do so in good faith with a genuine intention to achieve a positive result. Any delimitation must
be effected by agreement between the States concerned either by the conclusion of a direct agreement
or by some alternative method which must be based on consent. And any agreement or other
equivalent solution should involve the application of equitable criteria - those derived from equity which
are not in themselves principles and rules of international law.
Fundamental norm in delimitation: the boundary is determined according to the applicable law, in
conformity with equitable principles, having regard to all relevant circumstances, in order to achieve an
equitable result. A more complete, precise reformulation of the fundamental norm, prescribed by
general international law for all maritime delimitations between neighbour states:
(1) No maritime delimitation between States with opposite or adjacent coasts may be effected
unilaterally by one of those States. Such delimitation must be sought and effected by means of an
agreement, following negotiations conducted in good faith and with the genuine intention of achieving
a positive result. Where, however, such agreement cannot be achieved, delimitation should be effected
by recourse to a third party possessing the necessary competence.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
193
(2) In either case, delimitation is to be effected by the application of equitable criteria and by the use
of practical methods capable of ensuring, with regard to the geographic configuration of the area and
other relevant circumstances, an equitable result.
Continental Shelf Convention inapplicable. If the goal is only a delimitation of the continental shelf,
then the mandatory application of Art. 6 is undisputed. However, the goal of this proceeding is to draw
a single delimitation line for both the continental shelf and the superjacent fishery zone. It is doubtful
whether a treaty obligation which is in terms confined to the delimitation of the continental shelf can be
extended to a field which is evidently greater and fundamentally different. To do so would make the
maritime water mass over the shelf a mere accessory of the latter, and this is unacceptable.
Equitable criteria. There has been no systematic definition of the equitable criteria for use in
international maritime delimitation. Examples of criteria used: (classic formula) that the land dominates
the sea; the equal division of the areas of overlap of the maritime and submarine zones appertaining
to the respective coasts of neighbouring States, in cases where there are no special circumstances;
whenever possible, the seaward extension of a State's coast shouldn t encroach on areas that are too
close to the coast of another State; the prevention, as far as possible, of any cut-off of the seaward
projection of the coast or of part of the coast of either of the States concerned; and in certain
circumstances, the appropriate consequences may be drawn from any inequalities in the extent of the
coasts of two States into the same area of delimitation. The essential fact to remember is that the
criteria are not rules of law and therefore mandatory in the different situations, but "equitable", or even
"reasonable", criteria, and that what international law requires is that recourse be had in each case to
the criterion, or the balance of different criteria, appearing to be most appropriate to the concrete
situation.
Proposed methods by the Parties. The US proposed the method of the perpendicular (a vertical line,
perpendicular to the general of the coast). Canada relied on the equidistance method Issue:

What method should be used Held:

Regarding the method to be used. None of the potential methods for delimitation has intrinsic merits
which would make it preferable to another in the abstract.
There is no single method which intrinsically brings greater justice or is of greater practical usefulness.
The greater or lesser appropriateness of one method or another can only be assessed with reference
to the actual situations in which they are used, and the assessment made in one situation may be
entirely reversed in another. Nor is there any method of which must be preferred, a method with whose
application every delimitation operation could begin, albeit subject to its effects being subsequently
corrected or it being even discarded in favor of another, if those effects turned out to be clearly
unsatisfactory.
There must be willingness to adopt a combination of different methods whenever that seems to be
called for by differences in the circumstances that may be relevant in the different phases of the
operation and with reference to different segments of the line. Thus the Court decided this
independently of the proposals
It must be noted that the Parties were in agreement on the unity and uniformity of the seabed, and that
there were no geomorphological reasons for distinguishing between the respective natural
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
194
prolongations of the United States and Canadian coasts in the continental shelf of the delimitation area.
As to the water column, the Chamber concluded that the great mass of water belonging to the
delimitation area possessed the same character of unity and uniformity, which led to an impossibility to
discern any natural boundary capable of serving as a basis for carrying out a delimitation of the kind
requested by the Parties.
The Chamber noted that, as to the possibility of drawing a single boundary delimiting both the
continental shelf and the fisheries or exclusive economic zones, there was no rule of international law
to the contrary and there was no material impossibility in drawing a boundary of this kind.

The Chamber believed that, although article 6 of the 1958 Convention would have been mandatory in
respect of the delimitation of the continental shelf between Canada and the United States, there was
no obligation to apply it to the delimitation of a single maritime boundary for both the continental shelf
and the superjacent fishery zone.
Finally, the Chamber again stressed the unprecedented character of the delimitation that was required,
and stated that such a delimitation "can only be carried out by the application of a criterion, or
combination of criteria, which does not give preferential treatment to one of the two objects to the
detriment of the other." . As a result, the Chamber felt bound to turn towards "an application to the
present case of criteria more especially derived from geography," this being understood to be "mainly
the geography of coasts, which has primarily a physical aspect, to which may be added, in the second
place, a political aspect."

The configuration of the coasts of the Gulf of Maine was found to exclude any possibility that the
maritime boundary could be formed by a unidirectional single line. It was therefore obvious that between
Point A and the Nantucket - Cape Sable closing line, the delimitation line must comprise two segments.
The Delimitation
For the first segment, belonging to the sector closest to the international boundary terminus, the
Chamber drew from Point A two lines respectively perpendicular to the two basic coastal lines (from
Cape Elizabeth to the international boundary terminus and from there to Cape Sable) and bisected the
angle thus formed. The finishing point of the first segment was to be automatically determined by its
intersection with the line containing the next segment.
For the second segment of the boundary, the Chamber was dealing with the "quasi- parallelism"
between the coasts of Nova Scotia and Massachusetts, and realized that corrections should be made
in order to take into account the difference in length between the respective coastlines of the Parties.
The ratio between the coastal fronts of the two States had to be applied to a line drawn across the Gulf
where the coast of Nova Scotia and Massachusetts are nearest to each other. The second segment of
the boundary would begin where the corrected median line intersected the bisector drawn from Point
A and ended where it intersected the Nantucket-Cape Sable closing line.
The third segment of the boundary is the one that actually crosses Georges Bank. Since this segment
would inevitably be situated throughout its entire length in open ocean, it seemed to the Chamber

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
195
“obvious that the only kind of practical method which can be considered for [delimiting the final segment]
is, once again, a geometrical method,” and that "the most appropriate is that recommended above all
by its simplicity, namely in this instance the drawing of a perpendicular to the closing line of the Gulf."

Finally, the Chamber determined the precise point on the closing line of the Gulf from which the
perpendicular to that line should be drawn seawards. Whether the result could be considered
intrinsically equitable did not seem absolutely necessary for the first two segments of the line, since
their guiding parameters were provided by geography. The third segment was the principal area at
stake in the dispute because it traversedGeorges Bank.

The Chamber considered that the Parties’ contentions could not be taken into account as a relevant
circumstance or as an equitable criterion in determining the delimitation line, and it found there was no
likelihood of catastrophic repercussions for the livelihood and economic well-being of the Parties. 4.
Decision The Judgment was rendered on 12 October 1984. By four votes to one, the Chamber held
that: “The course of the single maritime boundary that divides the continental shelf and the exclusive
fisheries zones of Canada and the United States of America in the area referred to in the Special
Agreement concluded by those two States on 29 March 1979 shall be defined by geodetic lines
connecting the points with the following co-ordinates

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
196
12. SOUTHERN BLUEFIN TUNA CASES (NEW ZEALAND AND AUSTRALIA VS. JAPAN, ORDER
ON REQUEST FOR PROVISIONAL MEASURES)
27th August 1999, International Tribunal for the Law of the Sea [ITLOS]

Topic: Conservation of Resources

DOCTRINE: The Tribunal took into consideration that Australia and New Zealand contended that
further catches of southern bluefin tuna, pending the hearing by an arbitral tribunal, would cause
immediate harm to their rights. It also emphasized that the conservation of the living resources of the
sea was an element in the protection and preservation of the marine environment, and that the stock
of southern bluefin tuna was severely depleted and was at its historically lowest levels and that this was
a cause for serious biological concern.

FACTS: By notification submitted to Japan on 15 July 1999 New Zealand and Australia instituted
arbitral proceedings before the International Tribunal for the Law of the Sea as provided for in Annex
VII to the United Nations Convention on the Law of the Sea (UNCLOS) in a dispute concerning southern
bluefin tuna. New Zealand and Australia alleged that Japan had failed to comply with its obligation to
cooperate in the conservation of the southern bluefin tuna stock by, inter alia, undertaking unilateral
experimental fishing for southern bluefin tuna in 1998 and 1999 and had requested an arbitral tribunal
to be constituted. The Applicants asked the arbitral tribunal to declare that Japan had breached its
obligations under Articles 64 and 116 to 119 of UNCLOS. As a consequence of the said breaches of
UNCLOS, Japan should refrain from authorizing or conducting any further experimental fishing for SBT
without the agreement of New Zealand and Australia and negotiate and co-operate in good faith with
New Zealand and Australia with a view to agreeing future conservation measures and total allowable
catch for southern bluefin tuna necessary for restoring the stock to levels which could produce the
maximum sustainable yield. Pending the constitution of the arbitral tribunal, Australia and New Zealand
also requested the Tribunal to prescribe as provisional measures that Japan immediately cease
unilateral experimental fishing and that the parties ensure that no action of any kind was taken which
might aggravate, extend or render more difficult the solution of the dispute. Japan contended that
Australia and New Zealand must satisfy two conditions before a tribunal constituted would have
jurisdiction over this dispute such that this Tribunal may entertain a request for provisional measures
pursuant to Article 290(5) of UNCLOS pending constitution of such an Annex VII tribunal. First, the
Annex VII tribunal must have prima facie jurisdiction. This means among other things that the dispute
must concern the interpretation or application of UNCLOS and not some other international agreement.
Second, Australia and New Zealand must have attempted in good faith to reach a settlement in
accordance with the provisions of UNCLOS Part XV, Section 1.

ISSUES:
1. W/N the two conditions were satisfied so that the constituted tribunal would have jurisdiction over the
dispute
2. W/N provisional measures were required pending the constitution of the arbitral tribunal

RULING:
1. No. The dispute concerned the interpretation of the Convention for the Conservation of Southern
Bluefin Tuna of 1993 and did not concern the interpretation of the Convention on the Law of the Sea.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
197
Secondly, Australia and New Zealand had to have attempted in good faith to reach a settlement in
accordance with the provisions of UNCLOS Part XV, Section 1. Australia and New Zealand had
satisfied neither condition. The Tribunal was without authority to prescribe any provisional measures.
The Request for provisional measures by Australia and New Zealand should be denied. The Tribunal
decided that the fact that the Convention of 1993 applied between the parties did not exclude their right
to invoke the provisions of the Convention on the Law of the Sea in regard to the conservation and
management of southern bluefin tuna. Japan also contended that Australia and New Zealand had not
exhausted the procedures for amicable dispute settlement under Part XV, section 1, of the Convention,
in particular article 281, through negotiations or other agreed peaceful means, before submitting the
disputes to a procedure under Part XV, section 2, of the Convention.

2. Yes. The Tribunal found that negotiations and consultations had taken place between the
parties. A State Party was not obliged, though, to pursue procedures under Part XV of the Convention
when it concluded that the possibilities of settlement had been exhausted. The Tribunal therefore had
to decide whether provisional measures were required pending the constitution of the arbitral tribunal.
It took into consideration that Australia and New Zealand contended that further catches of southern
bluefin tuna, pending the hearing by an arbitral tribunal, would cause immediate harm to their rights. It
also emphasized that the conservation of the living resources of the sea was an element in the
protection and preservation of the marine environment, and that the stock of southern bluefin tuna was
severely depleted and was at its historically lowest levels and that this was a cause for serious biological
concern.

For the above reasons, provisional measures were appropriate in the view of the Tribunal. It
prescribed, intern alia, the following measures:
(a) Australia, Japan and New Zealand shall each ensure that no action is taken which might
aggravate or extend the disputes submitted to the arbitral tribunal;
(b) Australia, Japan and New Zealand shall each ensure that no action is taken which might
prejudice the carrying out of any decision on the merits which the arbitral tribunal may render;
(c) Australia, Japan and New Zealand shall ensure, unless they agree otherwise, that their annual
catches do not exceed the annual national allocations at the levels last agreed by the parties of 5,265
tonnes, 6,065 tonnes and 420 tonnes, respectively; in calculating the annual catches for 1999 and
2000, and without prejudice to any decision of the arbitral tribunal, account shall be taken of the catch
during 1999 as part of an experimental fishing programme;
(d) Australia, Japan and New Zealand shall each refrain from conducting an experimental fishing
programme involving the taking of a catch of southern bluefin tuna, except with the agreement of the
other parties or unless the experimental catch is counted against its annual national allocation as
prescribed in subparagraph (c);
(e) Australia, Japan and New Zealand should resume negotiations without delay with a view to
reaching agreement on measures for the conservation and management of southern bluefin tuna;
(f) Australia, Japan and New Zealand should make further efforts to reach agreement with other
States and fishing entities engaged in fishing for southern bluefin tuna, with a view to ensuring
conservation and promoting the objective of optimum utilization of the stock;

2. Decides that each party shall submit the initial report referred to in article 95, paragraph 1, of the
Rules not later than 6 October 1999, and authorizes the President of the Tribunal to request such
further reports and information as he may consider appropriate after that date;

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
198
3. Decides, in accordance with article 290, paragraph 4, of the Convention and article 94 of the
Rules, that the provisional measures prescribed in this Order shall forthwith be notified by the Registrar
through appropriate means to all States Parties to the Convention participating in the fishery for
southern bluefin tuna.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
199
VI. Jurisdiction of States
18. Manda Tubb v. Gries L-1325, 7 April 1947
19. Salonga Brownell v. Sun Life Assurance L-5731, 22 June 1954
20. Pelausa The Case of the SS Lotus, 7 September 1927
21. Garcia The Trail Smelter Arbitration (US v.
Canada)
22. Ching Nottebohm Case, Liechtenstein v. ICJ (1955)
Guatemala,
23. Dizon People v. Lol-lo and Saraw, 43 Phil. 19 (1922)
24. Verceles Attorney-General of Israel v. Eichmann, 36 Intl. L. Rep. 5, 1961
Decision of the Trial Court,
25. Mediodia Eichmann v. Attorney-General, Supreme (1962)
Court of Israel,
26. Abong Secretary of Justice v. Lantion, G.R. No. 139465, 17 October
2000
27. Acosta Government of the USA v. Hon. G.R. No. 148571, 24 September
Purganan 2002
28. Pablo Rodriguez v. RTC of Manila, G.R. No. 157977, 27 February
2006.
29. Fontanilla Government of Hong Kong v. Olalia G.R. No. 153675, 19 April 2007.
30. Sarmiento Lyons v. US L-11786, 26 September 1958
31. Salmasan US v. Ruiz, L-35645, 22 May 1985
32. Alih Wylie v. Rarang, G.R. No. 74135, 28 May 1992
33. Vitorillo US v. Reyes, G.R. No. 79253, 1 March 1993
34. Dadayan JUSMAG v. NLRC G.R. No. 108813, 15 December
1994
35. De Leon Forbes v. Chuoco Tiaco, L-6157, 30 July 1910
36. Cabandong PCGG v. Sandiganbayan, G.R. No. 124772, 14 August 2007
37. Tolentino Sanders v. Veridiano, L-46930, 10 June 1988
38. Samaniego US v. Guinto, G.R. No. 76607, 26 February
1990.
39. Culajara Professional Video Inc. v. TESDA, G.R. No. 155504. 26 June 2009
40. Manda ATCI Overseas Corporation v. Echin, G.R. No. 178551, 11 October
2010
41. Salonga Case Concerning US Diplomatic and ICJ, 24 May 1980
Consular Staff in Iran
42. Pelausa Holy See v. Rosario, G.R. No. 101949, 1 December
1994
43. Garcia The Republic of Indonesia v. Vinzon, G.R. No. 154705, 26 June 2003
44. Ching Deutsche v. Court of Appeals, G.R. No. 152318, 16 April 2009
45. Dizon DFA v. NLRC, G.R. No. 113191, 18 September
2006
46. Verceles World Health Organization v. Aquino, L-35131, 29 November 1972
47. Mediodia Lasco v. United Nations, G.R. Nos. 109095-109107, 23
February 1995
48. Abong ICMC v. Calleja, G.R. No. 85750, 28 September
1990
49. Acosta Liang (Huefeng) v. People, G.R. No. 128565, 28 January
2000

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
200
1. George Tubb vs. Thomas Griess (G.R. No. L-1325, April 7, 1947)
TOPIC: Principle of Territoriality

DOCTRINE: A sovereign is understood to cede a portion of his territorial jurisdiction is, where he allows
the troops of a foreign prince to pass through his dominions. In such case, without any express
declaration waving jurisdiction over the army to which this right of passage has been granted, the
sovereign who should attempt to exercise it would certainly be considered as violating his faith. By
exercising it, the purpose for which the free passage was granted would be defeated, and a portion of
the military force of a foreign independent nation would be diverted from those national objects and
duties to which it was applicable, and would be withdrawn from the control of the sovereign whose
power and whose safety might greatly depend on retaining the exclusive command and disposition of
this force.

FACTS: This is a petition for habeas corpus filed by George L. Tubb and Wesley Tedrow, citizens of
the United States but residents of the Philippines, under written contract of employment with the Army
of the United States. It appears that sometime between January 13, 1947, as appearing in the "charge
sheet" submitted by respondent, the herein petitioners were apprehended by the authorities of the
United States Army and have since been held in custody. On January 28, 1947, petitioners were
formally charged by said authorities with violations of Articles of War regarding misappropriation of
United States Government property destined for military use, said acts having been committed within
premises occupied by the United States Army under lease contracts.
Petitioners now come before this Court alleging that they are being unlawfully deprived of their liberty
and that Philippine courts have exclusive jurisdiction over their arrest, confinement and imprisonment
because (1) they are not persons subject to military laws, (2) martial law is no longer enforced.

ISSUE: W/N the authorities of the United States Army have jurisdiction over petitioners Tubb and
Tedrow

RULING: Yes. Without applying the recent treaty on military bases concluded between the
governments of the Philippines and the United States, it having reference to base sites not involved in
this case, and considering that a part of the United States Army is stationed in the Philippines with
permission of our government, and that petitioners who belong to the military personnel of that army
are charged with violations of Articles of War for offenses committed in areas under the control of the
United States Army, thereby giving said army jurisdiction over their person and the offenses charged,
petition is dismissed, without costs.
In the contract of employment entered into by petitioners with the United States Army, it is shown that
they voluntarily submitted themselves to United States military law while serving said contract, thereby
submitting themselves to the full extent of the authority of the United States Army in this area. This,
coupled with the fact that petitioners are American citizens, makes their position during the subsistence
of said contract no different from that of enlisted men, enlistment after all being nothing more than a
contract of voluntary service in the armed forces of one's country. Petitioners then, in relation to the
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
201
United States Army in the Philippines and during the subsistence of their employment contract, can be
deemed to possess the status of military personnel.
It is a settled principle of International Law that a foreign army allowed 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. In applying this rule in the case of Raquiza vs. Bradford (75 Phil.,
50), this Court held that "if a foreign army permitted to be stationed in a friendly country, "by permission
of its government or sovereign," is exempt from the civil and criminal jurisdiction of the place, with much
more reason should the Army of the United States which is not only permitted by the Commonwealth
Government to be stationed here but has come to the islands and stayed in them for the express
purpose of liberating them, and further prosecuting the war to a successful conclusion, be exempt from
the civil and criminal jurisdiction of this place, at least for the time covered by said agreement of the two
Governments. By analogy, an attempt of our civil courts to exercise jurisdiction over the United States
Army before such period expires, would be considered as a violation of this country's faith, which this
Court should not be the last to keep and uphold. By exercising it, paraphrasing the foregoing quotation,
the purpose for which the stationing of the army in the islands was requested or agreed upon may be
hampered or prejudiced, and a portion of said military force would be withdrawn from the control of the
sovereign to whom they belong. And, again, by analogy, the agreement for the stationing of the United
States Army or a part of its forces in the Philippines implies a waiver of all jurisdiction over their troops
during the time covered by such agreement, and permits the allied general or commander-in-chief to
retain that exclusive control and discipline which the government of his army may require."
The basis of this ruling is the leading case of The Schooner Exchange vs. McFadden (7 Cranch, 116)
in which the United States Supreme Court speaking through Chief Justice Marshall, held that "a third
case in which a sovereign is understood to cede a portion of his territorial jurisdiction is, where he allows
the troops of a foreign prince to pass through his dominions. In such case, without any express
declaration waving jurisdiction over the army to which this right of passage has been granted, the
sovereign who should attempt to exercise it would certainly be considered as violating his faith. By
exercising it, the purpose for which the free passage was granted would be defeated, and a portion of
the military force of a foreign independent nation would be diverted from those national objects and
duties to which it was applicable, and would be withdrawn from the control of the sovereign whose
power and whose safety might greatly depend on retaining the exclusive command and disposition of
this force. The grant of a free passage therefore implies a waiver of all jurisdiction over the troops during
their passage, and permits the foreign general to use that discipline, and to inflict those punishments
which the government of his army may require."
Since then, this principle has been consistently embodied in treaties of military character among friendly
nations and has been accepted by all the countries of the world. The most authoritative writers on
International Law firmly concur in this rule. To quote —
Wheaton. — A foreign army or fleet, marching through, sailing over or stationed in the territory of
another State, with whom the foreign sovereign to whom they belong is in amity, are also, in like
manner, exempt from the civil and criminal jurisdiction of the place. (Elements of International Law,
section 95.)
Hall. — Military forces enter the territory of a state in amity with that to which they belong, either when
crossing to and fro between the main part of their country and an isolated piece of it, or as allies passing

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
202
through for the purposes of a campaign, or furnishing garrisons for protection. In cases of the former
kind, the passage of soldiers being frequent, it is usual to conclude conventions, specifying the line of
road to be followed by them, and regulating their transit so as to make it as little onerous as possible to
the population among whom they are. Under such conventions offenses committed by soldiers against
the inhabitants are dealt with by the military authorities of the state to which the former belong; and as
their general object in other respects is simply regulatory of details, it is not necessary to look upon
them as intended in any respect to modify the rights of jurisdiction possessed by the parties to them
respectively. There can be no question that the concession of jurisdiction over passing troops to the
local authorities would be extremely inconvenient; and it is believed that the commanders, not only of
forces in transit through a friendly country with which no convention exists, but also of forces stationed
there, assert exclusive jurisdiction in principle in respect of offenses committed by persons under their
command, though they may be willing as a matter of concession to hand over culprits to the civil power
when they have confidence in the courts, and when their stay is likely to be long enough to allow of the
case being watched. The existence of a double jurisdiction in a foreign country being scarcely
compatible with the discipline of an army, it is evident that there would be some difficulty in carrying out
any other arrangement. (Emphasis supplied; International Law, 7th ed., section 56.)
Lawrence. — The universally recognized rule of modern time is that a state must obtain express
permission before its troops can pass through the territory of another state .. . Permissions may be
given as a permanent privilege by treaty for such a purpose as sending relief to garrisons, or it may be
granted as a special favor for the special occasion on which it is asked. The agreement for passage
generally contains provisions for the maintenance of order in the force by its own officers, and makes
them, and the state in whose service they are, responsible for the good behavior of the soldiers towards
the inhabitants. In the absence of special agreement the troops would not be amenable to the local law,
but would be under the jurisdiction and control of their own commanders, as long as they remained
within their own lines or were away on duty, but not otherwise. (Principles of International Law, 6th ed.,
section 107, p. 246.)
Oppenhein. — Whenever armed forces are on foreign territory in the service of their home State, they
are considered exterritorial and remain, therefore, under its jurisdiction. A crime committed on foreign
territory by a member of these forces cannot be punished by the local civil or military authorities, but
only by the commanding officer of the forces or by another authorities of their home State. This rule,
however, applies only in case the crime is committed, either within the place where the force is
stationed, or in some place where the criminal was on duty; it does not apply, if, for example, soldiers
belonging to a foreign garrison of a fortress leave the rayon of the fortress not on duty but for
recreational and pleasure, and then and there commit a crime. The local authorities are in that case
competent to punish them. (International Law, 4th ed., Vol. I, section 445.)
Westlake affirmed Wheaton's view.
Hyde. — Strong grounds of convenience and necessity prevent the exercise of jurisdiction over a
foreign organized military force which, with the consent of the territorial sovereign, enters its domain.
Members of the force who there commit offenses are dealt with by the military or other authorities of
the State to whose service they belong, unless the offenders are voluntarily given up. (I International
Law, section 247.)

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
203
McNair and Lauterpacht. — It is a principle of international law that the armed forces of one State, when
crossing the territory of another friendly country, with the acquiescence of the latter, is not subject to
the jurisdiction of the territorial sovereign, but to that of the officers and superior authorities of its own
command. (Annual of Digest, 1927-1928, Case No. 114.)

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
204
2. BROWNELL, JR. vs SUN LIFE ASSURANCE COMPANY OF CANADA
[ G.R. No. L-5731, June 22, 1954 ]
Doctrine:
There is no question that a foreign law may have extraterritorial effect in a country other than the
country of origin, provided the latter, in which it is sought to be made operative, gives its consent
thereto. This principle is supported by the unquestioned authority.
The jurisdiction of the nation within its territory is necessarily exclusive and absolute. It is
susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an
external source, would imply a diminution of its sovereignty to the extent of the restriction, and
an investment of that sovereignty to the same extent in that power in which would impose such
restriction. All exceptions, therefore, to the full and complete power of a nation within its
own territories, must be traced up to the consent of the nation itself. They can flow from
no other legitimate source. This consent may be either express or implied. (Philippine
Political Law by Sinco, pp. 27-28, citing Chief Justice Marshall's statement in the Exchange, 7
Cranch 116)
Thus, the application of said law in the Philippines is based concurrently on said act (Philippine Property
Act of 1946) and on the tacit consent thereto and the conduct of the Philippine Government itself in
receiving the benefits of its provisions.
Brief History:
On July 3, 1946, the Congress of the United States passed Public Law 485-79th Congress,
known as the Philippine Property Act of 1946. Section 3 thereof provides that "The Trading with the
Enemy Act of October 6, 1917, as amended, shall continue in force in the Philippines after July 4,
1946,."
To implement the provisions of the act, the President of the United States on July 3, 1946, promulgated
Executive Order No. 9747, "continuing the functions of the Alien Property Custodian and the
Department of the Treasury in the Philippines."
Prior to and preparatory to the approval of said Philippine Property Act of 1946, an agreement was
entered into between President Manuel Roxas of the Commonwealth and U. S. Commissioner Paul V.
McNutt whereby title to enemy agricultural lands and other properties was to be conveyed by the United
States to the Philippines in order to help the rehabilitation of the latter, but that in order to avoid complex
legal problems in relation to said enemy properties, the Alien Property Custodian of the United States
was to continue operations in the Philippines even after the latter's independence, that he may settle
all claims that may exist or arise against the above-mentioned enemy properties, in accordance with
the Trading With the Enemy Act of the United States.

Facts:
A petition was instituted compelling Sun Life Assurance to comply with the demand to pay the sum of
P310.10, which represents one-half of the proceeds of an endowment policy (No. 757199) which
matured on August 20, 1946, and which is payable to one Naogiro Aihara, a Japanese national. This
was said to be following the provisions of the Philippine Property Act of the United States.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
205
In defense, it was raised that “the immunities provided in section 5 (b) (2) of the Trading With the Enemy
Act of the United States are of doubtful application in the Philippines, and have never been adopted by
any law of the Philippines as applicable here or obligatory on the local courts; xxx”

And when the proclamation of the independence of the Philippines by President Truman was made,
said independence was granted "in accordance with the subject to the reservations provided in the
applicable statutes of the Unites States." The enforcement of the Trading With the Enemy Act of
the United States was contemplated to be made applicable after independence, within the
meaning of the reservations.

On the part of the Philippines, conformity to the enactment of the Philippine Property Act of 1946 of the
United States was announced by President Manuel Roxas in a joint statement signed by him and by
Commissioner Mcnutt. Ambassador Romulo also formally expressed the conformity of the Philippines
Government to the approval of said act to the American Senate prior to its approval.

Issue:
Whether or not the Philippine Property Act of 1946 is still binding despite the Philippines’
independence from the government of America

Held:
Yes. It must be stated that the consent of a Senate to the operation of a foreign law within
its territory does not need to be express; it is enough that said consent be implied from its
conduct or from that of its authorized officers.
In the case at bar, the ratification of or concurrence to the agreement for the extension of the
Philippine Property Act of 1946 is clearly implied from the acts of the President of the Philippines and
of the Secretary of Foreign Affairs, as well as by the enactment of Republic Acts Nos. 7, 8, and 477.
The operation of the Philippine Property Act of 1946 in the Philippines is not derived from the unilateral
act of the United States Congress, which made it expressly applicable, or from the saving provision
contained in the proclamation of independence. It is well-settled in the United States that its laws have
no extraterritorial effect. The application of said law in the Philippines is based concurrently on
said act (Philippine Property Act of 1946) and on the tacit consent thereto and the conduct of
the Philippine Government itself in receiving the benefits of its provisions.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
206
3. The SS Lotus Case

FACTS:
On August 2nd, 1926, just before midnight, a collision occurred between the French mail steamer Lotus,
proceeding to Constantinople, and the Turkish collier Boz-Kourt, between five and six nautical miles to
the north of Cape Sigri (Mitylene). The Boz-Kourt, which was cut in two, sank, and eight Turkish
nationals who were on board perished. After having done everything possible to succour the
shipwrecked persons, of whom ten were able to be saved, the Lotus continued on its course to
Constantinople, where it arrived on August 3rd.

At the time of the collision, the officer of the watch on board the Lotus was Monsieur Demons, a French
citizen, lieutenant in the merchant service and first officer of the ship, whilst the movements of the Boz-
Kourt were directed by its captain, Hassan Bey, who was one of those saved from the wreck.

As early as August 3rd the Turkish police proceeded to hold an enquiry into the collision on board the
Lotus ; and on the following day, August 4th, the captain of the Lotus handed in his master's report at
the French Consulate-General, transmitting a copy to the harbour master.

On August 5th, Lieutenant Demons was requested by the Turkish authorities to go ashore to give
evidence. The examination, the length of which incidentally resulted in delaying the departure of the
Lotas, led to the placing under arrest of Lieutenant Demons without previous notice being given to the
French Consul-General-and Hassan Bey, amongst others. This arrest, which has been characterized
by the Turkish Agent as arrest pending trial (arrestation préventive), was effected in order to ensure
that the criminal prosecution instituted against the two officers, on a charge of manslaughter, by the
Public Prosecutor of Stamboul, on the complaint of the families of the victims of the collision, should
follow its normal course.

ISSUE: Whether or not Turkey violated international law when Turkish courts exercised jurisdiction
over a crime committed by a French national outside Turkey

HELD: No.

A rule of international law, which prohibits a state from exercising criminal jurisdiction over a foreign
national who commits acts outside of the state’s national jurisdiction does not exist. Failing the
existence of a permissive rule to the contrary is the first and foremost restriction imposed by
international law on a state and it may not exercise its power in any form in the territory of another state.
Both states here may exercise concurrent jurisdiction over this matter because there is no rule of
international law in regards to collision cases to the effect that criminal proceedings are exclusively
within the jurisdiction of the state whose flag is flown.

This case is also significant in that the PCIJ said that a State would have territorial jurisdiction, even if
the crime was committed outside its territory, so long as a constitutive element of the crime was
committed in that State.

If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag
or in foreign territory, the same principles must be applied as if the territories of two different States
were concerned, and the conclusion must therefore be drawn that there is no rule of international law
prohibiting the State to which the ship on which the effects of the offence have taken place belongs,
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
207
from regarding the offence as having been committed in its territory and prosecuting, accordingly, the
delinquent.

The offence for which Lieutenant Demons appears to have been prosecuted was an act – of
negligence or imprudence – having its origin on board the Lotus, whilst its effects made themselves
felt on board the Boz-Kourt. These two elements are, legally, entirely inseparable, so much so that
their separation renders the offence non-existent… It is only natural that each should be able to
exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of
concurrent jurisdiction.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
208
4. Trail Smelter Arb Special Arbitral Tribunal
3 U.N. Rep. Int’l Arb. Awards 1905 (1941)

PARTIES:
UNITED STATES, petitioner
CANADA, respondent

DOCTRINE:
The duty to protect other states against harmful acts by individuals from within its jurisdiction at all times
is the responsibility of a state. Responsibility for pollution of the sea or the existence of a duty to desist
from polluting the sea has never been laid at the feet of any country by any international tribunal.
Although regulation of pollution is just commencing, it must ensure that there is equilibrium against
freedom of the seas guaranteed under general and long established rules of international law.

FACTS:
The Tail Smelter, A Canadian company built a lead & zinc smelting plant, located in British
Columbia since 1906, was owned and operated by a Canadian corporation. The resultant effect of from
the sulfur dioxide from Trail Smelter resulted in the damage of the 10 miles north of the state of
Washington between 1925 and 1937.

In 1928, US & Canada agreed on referring the matter to the Boundary Water’s Treaty of 1909.
By 1930, more than 300 tons of sulfur, including large quantities of sulfur dioxide was emitted daily.
Some emissions were carried down and caused damages to Washington property. This led to the
United States suit against the Canada with an injunction against further air pollution by Trail Smelter.
ISSUE:

Whether or not it is the responsibility of the State to protect to protect other states against harmful acts
by individuals from within its jurisdiction at all times

HELD:
Yes. It is the responsibility of the State to protect other states against harmful act by individuals
from within its jurisdiction at all times. No state has the right to use or permit the use of the territory in
a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein
as stipulated under the United States (P) laws and the principles of international law.
By looking at the facts contained in this case, the arbitration held that Canada (D) is responsible in
international law for the conduct of the Trail Smelter Company. Hence, the onus lies on the Canadian
government (D) to see to it that Trail Smelter’s conduct should be in line with the obligations of Canada
(D) as it has been confirmed by International law. The Trail Smelter Company will therefore be required
from causing any damage through fumes as long as the present conditions of air pollution exist in
Washington.

So, in pursuant of the Article III of the convention existing between the two nations, the indemnity
for damages should be determined by both governments. Finally, a regime or measure of control shall
be applied to the operations of the smelter since it is probable in the opinion of the tribunal that damage
may occur in the future from the operations of the smelter unless they are curtailed.

Submitted by: Thriza Czarina Q. Garcia

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
209
5. NOTTEBOHM CASE (Liechtenstein v. Guatamela); I.C.J. 6 April 1955
FACTS:
Mr. Friedrich Nottebohm, a German by birth. He received citizenship through naturalization from
Liechtenstein in 1939. Prior to this date, in 1905, Nottebohm lived and performed substantial business
dealings in Guatemala, and returned frequently to Germany to visit family. Once Nottebohm received
his citizenship from Liechtenstein, he returned to Guatemala and Guatemalan authorities updated his
nationality in the Register of Aliens.
On July 17, 1941, the United States blacklisted Nottebohm and froze all his assets which were
located in the United States. War broke out between the
United States and Germany, and between Guatemala and Germany, on December 11, 1941.
Nottebohm was arrested in Guatemala in 1943 and deported to the United States, where he was held
until 1946 as an enemy alien. Once released, Nottebohm applied for readmission to Guatemala, but
his application was refused. Nottebohm moved his residence to Liechtenstein (where he was a citizen),
but Guatemala had already taken steps to confiscate Nottebohm’s property in Liechtenstein.
Guatemala succeeded in 1949.
Liechtenstein instituted legal proceedings against Guatemala in the International Court of Justice
(ICJ), requesting the court declare Guatemala had violated international law “in arresting, detaining,
expelling and refusing to readmit Mr. Nottebohm and in seizing and retaining his property.” Additionally,
Liechtenstein requested the ICJ to order Guatemala to pay compensation as reparation. Guatemala
defended by contesting Nottebohm’s Liechtenstein nationality.
Guatemala contended that the Court was without jurisdiction, the principal ground for its
objection being that the validity of its declaration of acceptance of the compulsory jurisdiction of the
Court expired a few weeks after the filing of the Application by Liechtenstein and, in any event, some
considerable time before any settlement of the dispute by the Court.
Issue: Whether or not ICJ has jurisdiction over the case.

Held: YES. The Court rejected the preliminary objection and resumed the proceedings on the merits.
Nationality is within the domestic jurisdiction of the State, which settles, by its own legislation, the rules
relating to the acquisition of its nationality. But the issue which the Court must decide is not one which
pertains to the legal system of Liechtenstein; to exercise protection is to place oneself on the plane of
international law. International practice provides many examples of acts performed by States in the
exercise of their domestic jurisdiction which do not necessarily or automatically have international
effect. When two States have conferred their nationality upon the same individual and this
situation is no longer confined within the limits of the domestic jurisdiction of one of these
States but extends to the international field, international arbitrators or the Courts of third States
which are called upon to deal with this situation would allow the contradiction to subsist if they
confined themselves to the view that nationality is exclusively within the domestic jurisdiction
of the State. In order to resolve the conflict they have, on the contrary, sought to ascertain whether
nationality has been conferred in circumstances such as to give rise to an obligation on the part of the
respondent State to recognize the effect of that nationality. In order to decide this question, they have
evolved certain criteria. They have given their preference to the real and effective nationality, that which
accorded with the facts, that based on stronger factual ties between the person concerned and one of
these States whose nationality is involved. Different factors are taken into consideration, and their
importance will vary from one case to the next: there is the habitual residence of the individual
concerned but also the centre of his interests, his family ties, his participation in public life, attachment
shown by him for a given country and inculcated in his children etc.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
210
6. THE PEOPLE vs. LOL-LO and SARAW
G.R. No. 17958 February 27, 1922
Doctrine:
Pirates are in law hostes humani generis. Piracy is a crime not against any particular state but against
all mankind. It may be punished in the competent tribunal of any country where the offender may be
found or into which he may be carried. The jurisdiction of piracy unlike all other crimes has no territorial
limits. As it is against all so may it be punished by all. Nor does it matter that the crime was committed
within the jurisdictional 3-mile limit of a foreign state, "for those limits, though neutral to war, are not
neutral to crimes
Facts:
On or about June 30, 1920, two boats left matuta. In one of the boats was one individual, a Dutch
subject, and in the other boat eleven men, women, and children, likewise subjects of Holland.
After a number of days of navigation, at about 7 o'clock in the evening, the second boat arrived between
the Islands of Buang and Bukid in the Dutch East Indies. There the boat was surrounded by
six vintas manned by twenty-four Moros all armed.
The Moros first asked for food, but once on the Dutch boat, too for themselves all of the cargo, attacked
some of the men, and brutally violated two of the women by methods too horrible to the described.
All of the persons on the Dutch boat, with the exception of the two young women, were again placed
on it and holes were made in it, the idea that it would submerge, although as a matter of fact, these
people, after eleven days of hardship and privation, were succored violating them, the Moros finally
arrived at Maruro, a Dutch possession.
Two of the Moro marauder were Lol-lo, who also raped one of the women, and Saraw. At Maruro the
two women were able to escape.
Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine Islands. There
they were arrested and were charged in the Court of First Instance of Sulu with the crime of piracy.
A demurrer was interposed by counsel de officio for the Moros, based on the grounds that the offense
charged was not within the jurisdiction of the Court of First Instance, nor of any court of the Philippine
Islands, and that the facts did not constitute a public offense, under the laws in force in the Philippine
Islands.
Issue: Whether or not the court has jurisdiction
Held:
The Court has jurisdiction. The proven facts are not disputed. All of the elements of the crime of piracy
are present. Piracy is robbery or forcible depredation on the high seas, without lawful authority and
done animo furandi, and in the spirit and intention of universal hostility.
Pirates are in law hostes humani generis. Piracy is a crime not against any particular state but against
all mankind. It may be punished in the competent tribunal of any country where the offender may be
found or into which he may be carried. The jurisdiction of piracy unlike all other crimes has no territorial
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
211
limits. As it is against all so may it be punished by all. Nor does it matter that the crime was committed
within the jurisdictional 3-mile limit of a foreign state, "for those limits, though neutral to war, are not
neutral to crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
212
7. Attorney General of the Government of Israel vs. Eichmann (Ruling of District Court)

Facts:
In 1950, after the World War II, Nazi SS Lieutenant Colonel Adolf Eichmann (Austrian who deported
the Jews of Europe to concentration camps) fled to Argentina was living under an assumed name -
Ricardo Klement. On May 1960, the Israeli Security Service agents abducted him in Argentina without
the consent of the Argentine Government and brought Eichmann to trial in Israel under the Nazis and
Nazi Collaborators (Punishment) Law (Adopted on August 1, 1950).

Section 1(a) of the Law provides:


"A person who has committed one of the following offences
(1) during the period of the Nazi regime in a hostile country, carried out an act
constituting a crime against the Jewish People;
(2) during the period of the Nazi regime, carried out an act constituting a crime
against humanity, in a hostile country;
(3) during the period of the Second World War, carried out an act constituting a war
crime, in a hostile country;
is liable to the death penalty."

Israeli Attorney General Gideon Hausner signed a bill of indictment against Eichmann on 15 counts,
including “crimes against the Jewish people” and “crimes against humanity” under the said law. The
law was enacted after Israel became a state and after the events charged against Eichmann during the
Nazi era in Germany.

The Learned counsel for Eichmann objected to the jurisdiction of the Court on grounds based on
international law. The counsel contends that (1) the Israel Law by inflicting punishment for acts done
outside the boundaries of the State and before its establishment, against persons who were not Israel
citizens and by a person who acted in the course of duty on behalf of a foreign country conflicts with
international law and exceeds the powers of the Israel legislator and (2) that the prosecution of the
accused in Israel upon his abduction from a foreign country conflicts with international law and exceeds
the jurisdiction of the court

Issue:
Whether in the event of conflict between the international law and the laws of the land, what shall
prevail? and whether the 1950 Law is valid?

Held:
Our [District Court] jurisdiction to try this case is based on the Nazis and Nazi Collaborators
(Punishment) Law, a statutory law the provisions of which are unequivocal. The Court has to give effect
to the law of the Knesset, and we cannot entertain the contention that this law conflicts with the
principles of international law. For this reason alone, Counsel's first contention must be rejected. The
Learned counsel have failed to find any foundation for the contention that Israeli law is in conflict with
the principles of international law. On the contrary, we have reached the conclusion that the Law in
question conforms to the best traditions of the law of nations.

The power of the State of Israel to enact the Law in question or Israel's "right to punish" is based, with
respect to the offences in question, from the point of view of international law, on a dual foundation:
The universal character of the crimes in question and their specific character as being designed to
exterminate the Jewish People.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
213
The abhorrent crimes defined in this Law are crimes not under Israeli law alone. These crimes which
offended the whole of mankind and shocked the conscience of nations are grave offences against the
law of nations itself ("delicta juris gentium”). Therefore, so far from international law negating or limiting
the jurisdiction of countries with respect to such crimes, in the absence of an International Court, the
international law is in need of the judicial and legislative authorities of every country, to give effect to its
penal injunctions and to bring criminals to trial. The jurisdiction to try crimes under international law is
universal.

The crimes dealt with in this case are not crimes under Israeli law alone, but are in essence offences
against the law of nations. Indeed, the crimes in question are not a free creation of the legislator who
enacted the law for the punishment of Nazis and Nazi collaborators, but have been stated and defined
in that law according to a precise pattern of international laws and conventions which define crimes
under the law of nations.

The State of Israel's "right to punish" the Accused derives, in our view, from two cumulative sources: a
universal source (pertaining to the whole of mankind) which vests the right to prosecute and punish
crimes of this order in every state within the family of nations; and a specific or national source which
gives the victim nation the right to try any who assault its existence.

The "linking point" between Israel and the Accused (and for that matter between Israel and any person
accused of a crime against the Jewish People under this law) is striking in the "crime against the Jewish
People," a crime that postulates an intention to exterminate the Jewish People in whole or in part. There
was a subsisting "linking point," since most of the Nazi crimes of this kind were perpetrated against the
Jewish People; but viewed in the light of the definition of "crime against the Jewish People," as defined
in the Law, constitutes in effect an attempt to exterminate the Jewish People, or a partial extermination
of the Jewish People. If there is an effective link (and not necessarily identity) between the State of
Israel and the Jewish People, then a crime intended to exterminate the Jewish People has an obvious
connection with the State of Israel.

The connection between the State of Israel and the Jewish People needs no explanation. The State of
Israel was established and recognized as the State of the Jews. The proclamation of 5 Iyar 5708 (14
May 1948) (Official Gazette No. 1) opens with the words: "It was in the Land of Israel that the Jewish
People was born," dwells on the history of the Jewish People from ancient times until the Second World
War

This crime very deeply concerns the vital interests of the State of Israel, and pursuant to the "protective
principle," this State has the right to punish the criminals. In terms of Dahm's thesis, the acts in question
referred to in this Law of the State of Israel "concern Israel more than they concern other states," and
therefore, according to this author's thesis, too, there exists a "linking point." The punishment of Nazi
criminals does not derive from the arbitrariness of a country "abusing" its sovereignty, but is a legitimate
and reasonable exercise of a right in penal jurisdiction.
It was also in order to provide some measure of redress for the terrible injustice of the Holocaust that
the sovereign state of the Jews, which enables the survivors of the Holocaust to defend its existence
by the means at the disposal of a state, was established on the recommendation of the United Nations.
One of the means therefor is the punishment of the murderers who did Hitler's contemptible work. It is
for this reason that the Law in question has been enacted.

Submitted by: Carla Verceles


PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
214
8. Eichmann v. Attorney general of Israel, Supreme Court of Israel 1962
Facts:

Prior to the outbreak of World War II, the Appellant was a member of the Austrian SS and later
volunteered for a position with the Head Office of the Security Service (SD) in Berlin (para. 59 of trial
judgment). When the SD merged with the State Secret Police (Gestapo) to form the Head Office for
Reich Security (RSHA), the Accused occupied the role of Special Officer of Zionist Affairs (para. 61 of
trial judgment). He was transferred to Vienna in 1938 to administer the Central Office for the Emigration
of Austrian Jews (para. 64). His success was such that approximately 150,000 Austrian Jews were
forced to emigrate and he was appointed head of the new Reich Central Office for Jewish Emigration
in October 1939 (para. 65 of trial judgment).
From the outbreak of the War to mid-1941, the Accused devised and carried out the mass deportation
of Jewish persons from his role as the Special Referent for Emigration and Evacuation within the RSHA
(paras. 71-75 of trial judgment) and explored the possibility of setting up a slave Jewish state in
Madagascar (para. 76 of trial judgment).
In early 1942, the Accused was appointed the Referant of the RSHA in matters connected to the Final
Solution (para. 88 of trial judgment). In implementing the Final Solution, the Accused received
information as to the number of persons to be expelled (para. 90 of Trial Judgement), organised the
transfer of money from evacuated Jews for the disposal of the SS (para. 91 of trial judgment), and
oversaw the handling of the transport of Jews (para. 93 of trial judgment), not only in the Reich but also
in other countries (para. 98 of trial judgment). In particular, he headed the Eichmann Special Operations
Unit in Hungary and did his utmost to carry out the Final Solution (para. 111 of trial judgment). These
"Transport Jews" were taken to concentration camps and those who were unfit for hard labour were
exterminated immediately (para. 145 of trial judgment).
In autumn 1942, a cover up effort was begun as bodies in mass graves were burned in an effort to hide
the slaughter (para. 148 of trial judgment). The concentration camps were evacuated (para. 149 of trial
judgment) – the Accused in particular was responsible for all administrative matters connected with the
Terezin Ghetto (para. 152 of trial judgment) and the camp at Bergen-Belsen (para. 153 of trial
judgment).
In May 1960, the Israeli intelligence service, Mossad, abducted Eichmann from his hiding place in
Argentina and transferred him to Jerusalem to face an Israeli court.
The Appellant, Adolf Eichmann, was an Austrian by birth who volunteered to work for the Security
Service (SD) in Berlin. He rose through the ranks and eventually occupied the position of Head of
Section (Referant) for Jewish Affairs charged with all matters related to the implementation of the Final
Solution to the Jewish Question. In this capacity, he oversaw the transport and deportation of Jewish
persons, set up and personally ran an operations centre in Hungary in order to implement the Final
Solution there, organised the transfer of money from evacuated Jews to the State and was responsible
for the administration of the camps at Terezin and Bergen-Belsen
The trial commenced on 11 April 1961 with the indictment charging Eichmann with 15 counts of crimes
against the Jewish people, crimes against humanity, war crimes and membership in an organisation
declared criminal by the International Military Tribunal in Nuremberg 15 years earlier. On 11 December
1961, Eichmann was convicted on all 15 counts and sentenced to death.
He appealed on both legal and factual grounds against his conviction and sentence. On 31 January
1962 and 15 February 1962, his Counsel submitted written pleadings to the Supreme Court.
Issues:
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
215
· Is the Law of 1950 contrary to the principle of non-retroactivity of criminal law or to the principle of
territorial sovereignty?
· Does the Law of 1950 conflict with the principle of territorial sovereignty?
· Can the Appellant rely on the Act of State doctrine to excuse his criminal responsibility?
Held:
There is no rule of general customary international law, which prohibits the enactment of retroactive
penal legislation. Furthermore, the argument that to punish an individual for conduct which was not yet
criminal at the time of its commission would be unethical loses its force in face of the odious crimes
committed by the Appellant. The Appellant’s contention that the Law of 1950 is therefore contrary to
the principle of non-retroactivity and cannot therefore apply to the Appellant is rejected (para. 8).
There is no rule of general customary international law that the principle of territorial sovereignty
prohibits the enactment of a criminal law applicable to extra-territorial crimes committed by a foreign
national. The Appellant’s second ground of appeal must also be rejected (para. 9).
These findings are reinforced by positive international law: the crimes for which the Appellant was
convicted were international crimes under international law entailing individual criminal responsibility at
the time that they were committed (para. 11), and their universal character is such that each State is
vested with the power to try and punish anyone who assisted in their commission (para. 12).
Finally, the Appellant contends that his crimes were Acts of the State, the responsibility for which rests
with the State alone and another State has no right to punish the person who committed the act, save
with the consent of the state whose mission he carried out. This ground of appeal was rejected by the
Supreme Court as there is no basis for applying the doctrine to acts prohibited by international law,
particularly in cases of such heinous international crimes. This was affirmed by the International Military
Tribunal at Nuremberg (para. 14).
Submitted by: Mediodia

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
216
10. Gov. of the US vs Hon. Guillermo Puruganan, G.R. No. 148571, September 24, 2002
Facts:
On June 16, 1999, the US Government sent a Note Verbale to the Philippines, requesting the
extradition of Mark Jimenez also known as Mario Batacan Crespo.
Mark Jimenez sought a TRO by the RTC of Manila alleging that he should be given notice of the
extradition and is entitled to hearing to present his evidence before a petition for his arrest warrant can
be filed. It was granted by the RTC of Manila.
The validity of the TRO was challenged in the Supreme Court by the Secretary of Justice. It was initially
dismissed by the SC. However, the decision was reversed and the TRO was lifted after a motion for
reconsideration.
On May 18, 2001, the US Gov’t, through the DOJ, filed a petition for extradition in the RTC of Manila
on grounds that Jimenez is the subject of an arrest warrant issued by the US District Court of Florida.
The arrest warrant was issued because of:
1. Jimenez’ alleged conspiracy to defraud the US
2. Tax evasion
3. Wire fraud
4. False statements
5. Illegal Campaign contributions
Before the RTC of Manila could act on the extradition, Jimenez filed an “Urgent Manifestation/Ex-Parte
Motion” to set the application for extradition by the US Gov’t for hearing.
On May 23, 2001, Judge Puruganan of Manila RTC granted the hearing. The petitioner, US Gov’t,
made reservations on allowing such hearing before a warrant of arrest is issued because it would give
the Jimenez a chance to escape and avoid extradition. Jimenez then applied for bail amounting to
P100,000 during said hearing.
On July 3, 2001, the RTC issued the arrest warrant and fixed bail amounting to P1 million in cash.
Thus, this petition.
Issue:
1. W.O.N. Jimenez is entitled to notice and hearing before a warrant for his arrest can be issued
2. W.O.N. he is entitled to bail and to provisional liberty while the extradition proceedings are
pending.
Ruling:
1. No. There is no right to notice and hearing before an arrest warrant is issued on the basis of the
Extradition law and the Constitution.
A. Extradition Law (PD 1069)
PD 1069 is the implementing law of our extradition treaties. In construing extradition treaties, its
postulates must be discussed first.
i. Extradition Is a Major Instrument for the Suppression of Crime.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
217
Extradition treaties are entered into for the purpose of suppressing crime by facilitating the arrest
and the custodial transfer of a fugitive from one state to the other.
Governments are adjusting their methods of dealing with criminals and crimes that transcend
international boundaries.
It is an instrument of international co-operation where fugitives to the jurisdiction of a court
competent to try them in accordance with municipal and international law.
In Secretary vs Lantion, “the Philippines has national interest to help suppressing crimes, [otherwise,
our country] would be an easy refuge for international criminals.
ii. The Requesting State Will Accord Due Process to the Accused
An extradition treaty signifies our confidence in the capacity and the willingness of the other state
to protect the basic rights of the person sought to be extradited. That signature signifies our full faith
that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in
the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed,
or would have been directly attacked for its unconstitutionality.
iii. The Proceedings Are Sui Generis
Extradition proceedings are not criminal in nature. In criminal proceedings, the constitutional
rights of the accused are guaranteed. As a rule, constitutional rights that are only relevant to determine
the guilt or innocence of an accused cannot be invoked by an extraditee.

Criminal Proceeding Extradition

Nature Full blown-trial Summary proceeding

Purpose Determine guilt or innocence Determine whether extradition law is followed and
of accused person is extraditable

Evidence Rules of Evidence followed Less stringent

Quantum of Proof beyond reasonable Prima facie existence of a case


Proof doubt

Judgement Final and executory Adjudged by Courts but President may exercise
discretion
iv. Compliance Shall Be in Good Faith
Under pacta sunt servanda, we are bound to comply in good faith with our obligations under the
Treaty. This principle requires that we deliver the accused to the requesting country if the conditions
precedent to extradition, as set forth in the Treaty, are satisfied.
v. There Is an Underlying Risk of Flight
Persons to be extradited are presumed to be flight risks. This prima facie presumption finds
reinforcement in the experience of the executive branch: nothing short of confinement can ensure that
the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the
requesting state.
Section 6 of PD 1069 (Extradition Law), provides,

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
218
“He [judge] may issue a warrant for the immediate arrest of the accused which may be served
anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and
temporary detention of the accused will best serve the ends of justice.”
The law uses the word “immediate” to qualify the arrest of the accused. It also used the words “if it
appears,” which means that a mere prima facie finding is sufficient to make a speedy initial
determination as regards the arrest and detention of the accused. Moreover, the law specifies that the
court sets a hearing upon receipt of the answer or upon failure of the accused to answer after receiving
the summons. In connection with the matter of immediate arrest, however, the word “hearing” is notably
absent from the provision. Evidently, had the holding of a hearing at that stage been intended, the law
could have easily so provided. It also bears emphasizing at this point that extradition proceedings are
summary in nature.
B. Constitution
Under Section 2, Article III of the Constitution, the requirement is only the examination -- under oath or
affirmation -- of complainants and the witnesses they may produce. There is no requirement to notify
and hear the accused before the issuance of warrants of arrest.
At most, in cases of clear insufficiency of evidence on record, judges merely further examine
complainants and their witnesses.
Otherwise, a hearing could convert the determination of a prima facie case into a full-blown trial of the
entire proceedings and possibly make trial of the main case superfluous.
Resume:
In this case, therefore, Jimenez is not entitled to notice and hearing because on the basis of PD 1069,
the intent of the Extradition law is to prevent escape, and the Constitution, does not require notice and
hearing in issuing a warrant of arrest.
2. No. In general, bail is not a matter of right in extradition cases.
Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained
for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition
courts do not render judgments of conviction or acquittal.
The constitutional provision on bail will not apply to a case like extradition, where the presumption of
innocence is not at issue.
However, after a potential extraditee has been arrested or placed under the custody of the law, bail
may be applied for and granted as an exception, only upon a clear and convincing showing (1) that,
once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there
exist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those
cited by the highest court in the requesting state when it grants provisional liberty in extradition cases
therein.
Nonetheless, in this case, there is no special or compelling circumstance and no proof that he is not a
flight risk.
First, election to the position of Congressman is not a reasonable classification in criminal law
enforcement. Second, his contention that extradition proceedings are lengthy is contrary to its summary
nature. Third, the fact that he has not escaped does not mean he will not escape when the issue is
resolved.
Submitted by: Acosta

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
219
11. Rodriguez v. RTC
GR No. 157977 February, 27, 2006
Facts: A petition for extradition by the US Government through the DOJ against Eduardo and Imelda
Rodriguez (petitioners).
After their arrest, petitioners applied for bail which the trial court granted and was set on 1 million each.
After the denial of its motion for reconsideration for the grant of bail, the US government filed a petition
for certiorari before the SC entitled Government of the US v Hon. Ponferrada.
The SC directed the trial court to resolve the matter of bail subject to whatever ruling that the
same Court may have in the similar case of Mark Jimenez (US v Purganan). In compliance to such
directive, the trial court, without prior notice and hearing, cancelled the cash bond of the petitioners and
ordered the issuance of a warrant of arrest.
Hence this appeal.
Issues:
1. In an extradition case, is prior notice and hearing required before bail is cancelled?
2. What constitutes a special circumstance to be exempt from the no-bail rule in extradition cases?
Held:
1. The issue has become moot and academic insofar as petitioner Eduardo Rodriguez is
concerned. He is now in the USA facing the charges against him. But co-petitioner Imelda Gener
Rodriguez is here and stands on a different footing. The SC agree that her bail should be restored.
In Purganan, the SC said that a prospective extraditee is not entitled to notice and hearing before the
issuance of a warrant of arrest, because notifying him before his arrest only tips him of his pending
arrest. But this is for cases pending the issuance of a warrant of arrest, not in a cancellation of a bail
that had been issued after determination that the extraditee is a no-flight risk. The policy is that a
prospective extraditee is arrested and detained to avoid his flight from justice.
On the extraditee lies the burden of showing that he will not flee once bail is granted. If after his arrest
and if the trial court finds that he is no flight risk, it grants him bail. The grant of the bail, presupposes
that the co-petitioner has already presented evidence to prove her right to be on bail, that she is no
flight risk, and the trial court had already exercised its sound discretion and had already determined
that under the Constitution and laws in force, co-petitioner is entitled to provisional release.
Under these premises, and with the trial courts knowledge that in this case, co-petitioner has offered to
go on voluntary extradition; that she and her husband had posted a cash bond of P1 million each; that
her husband had already gone on voluntary extradition and is presently in the USA undergoing trial;
that the passport of co-petitioner is already in the possession of the authorities; that she never
attempted to flee; that there is an existing hold-departure order against her; and that she is now in her
sixties, sickly and under medical treatment, we believe that the benefits of continued temporary liberty
on bail should not be revoked and their grant of bail should not be cancelled, without the co-petitioner
being given notice and without her being heard why her temporary liberty should not be discontinued.
2. The SC emphasized that bail may be granted to a possible extraditee only upon a clear and
convincing showing (1) that he will not be a flight risk or a danger to the community, and (2) that there
exist special, humanitarian and compelling circumstances.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
220
Considering that she has not been shown to be a flight risk nor a danger to the community, she is
entitled to notice and hearing before her bail could be cancelled. Based on the record, we find that,
absent prior notice and hearing, the bails cancellation was in violation of her right to due process.
Submitted by: Jason Kervy “prettyboy” Pablo

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
221
12. GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION V. Hon. OLALIA and
Juan Munoz
G.R. No. 153675 April 19, 2007
FACTS:
The Republic of the Philippines and Hong Kong signed an agreement for the surrender of Accused and
Convicted Person, it took effect on June 20, 1997. Private respondent Munoz, was charge before the
Hong Kong Court with three (3) counts of offense of accepting an advantage as agent and seven (7)
counts of conspiracy to defraud. The Hong Kong court issued a warrant of arrest against Munoz.
The DOJ receive a request from the Hong Kong department of Justice for the provisional arrest of
Munoz. Which was forwarded to the NBI, likewise NBI filed with the RTC of Manila an application for
the provisional arrest of private respondent. On September 23, 1999, RTC issued an Order of arrest
against Munoz, at the same day Munoz was arrested and detained by the NBI.
On November 22, 1999, Hong Kong filed with the RTC of Manila a petition for extradition of Munoz.
Likewise, Munoz filed a petition for bail, which was denied by the judge Bernardo on the ground that
there is no Philippine law granting bail in extradition cases and Munoz is a high “Flight Risk”. The Case
re raffled to respondent Judge Olalia after Judge Bernardo inhibited himself form the case. Respondent
Judge then approve the bail, after a motion of reconsideration was filed by Munoz.
Petitioner then filed an urgent motion to vacate the order of approving the bail of Munoz, which the
respondent judge denied. Hence the Petition to the Supreme Court. Petitioner contends that the right
to bail is solely in criminal proceeding, and that there is nothing in the constitution or statutory law
providing that a potential extradite has a right to bail.
ISSUE: Whether or not in extradite proceedings, the right of bail is allowed?
HELD:
Yes. Sec (2) of PD no. 1069 or the Philippine Extradition Law defines extradition as the removal
of an accused from the Philippines with the object of placing him at the disposal of foreign authorities
to enable the requesting state or government to hold him in connection with any criminal investigation
directly against him or execution of a penalty imposed on him under the penal or criminal law of the
requesting state or government.
Extradition is the right of foreign power, created by treaty, to demand the surrender of one accused or
convicted of a crime within its territorial jurisdiction and the correlative duty of the other state to
surrender him to the demanding state. This extradition is not a criminal proceeding, but an
administrative in character. Its object is to prevent the escape of a person accused or convicted of a
crime and to secure his return to the state from which he fled, for the purpose of trial or punishment. It
may not be a criminal proceeding but it is characterized by: a) The deprivation of liberty on the part of
the potential extradite and b) the means employed to attain the purpose of extradition is also the
machinery of criminal law or the immediate arrest and temporary detention of the accused.
While extradition law does not provide for the grant of bail to an extradite, however, there is no provision
prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. In the
case at bar, Munoz was detain on September 1999 to December 2001 or two (2) years without being
convicted of any crime. Such extended period of detention is a serious deprivation of his fundamental
right to liberty. In fact, it was this prolonged deprivation of liberty that the petition for bail was granted.
The time honoured principle of pacta sunt servanda demands that the Philippines honor its obligation
under Extradition Treaty, failure to comply with these obligation is a set back in our foreign relation
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
222
and defeats the purpose of extradition. However, it does not necessarily mean that in keeping with its
treaty obligation, the Philippines should diminish a potential extraditee’s right to life, liberty, and due
process.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
223
13. Harry Lyons, Inc., V. The United States Of America
G.R. No. L-11786. September 26, 1958.

Doctrines: 1. As a rule, a sovereign state cannot be sued in its own courts, or in any other, without its
consent. However, where, as in the instant case, a sovereign state entered in to a contract with a private
person the state can be sued upon the theory that it has descended to the level of an individual from
which it can be implied that it has given its consent to be sued under the contract.

2. The contract entered into between the United States Government and appellant for stevedoring and
miscellaneous labor services lays down the procedure to be followed by the appellant should it desire
to obtain a remedy under the contract. Its remedy is to file its claim, not with the court, but with the
Contracting Officer who is empowered to act and render a decision. If dissatisfied with his decision,
plaintiff may appeal to the Secretary of the Navy where he would be "afforded an opportunity to be
heard and to offer evidence in support of its appeal", and the decision of the Secretary shall be final
and conclusive "unless determined by a court of competent jurisdiction to have been fraudulent,
arbitrary, capricious, or so grossly erroneous as necessary to imply bad faith."

Hence, it is only after the claim has been decided on appeal by the Secretary that plaintiff can resort to
a court of competent jurisdiction. It appearing in the complaint that appellant has not complied with the
aforesaid procedure, or stated differently, it has failed to first exhaust its administrative remedies against
said Government, the lower court acted properly in dismissing the case.

Facts: Plaintiff brought this action before the Court of First Instance of Manila to collect several sums
of money arising from a contract entered into between plaintiff and defendant.

It appears that Lyons (Plaintiff) and the Government of the United States (Defendant) entered into a
contract for stevedoring service at the U.S. Naval Base, Subic Bay, Philippines, the contract to
terminate on June 30, 1956. This contract was entered into pursuant to the provisions of Section 2 (c)
(1) of the Armed Services Procurement Act of 1947 of the United States of America (Public Law 413,
80th Congress). It is undisputed that the contract was entered into between plaintiff and the
Government of the United States of America.

Issue:
1. Whether or not the courts lacks jurisdiction over US - Yes
2. Whether or not Lyon failed to exhaust the administrative remedies provided for in their contract. -
Yes

Ruling:
1. If, where and when the state or its government enters into a contract, through its officers or agents, in
furtherance of a legitimate aim and purpose and pursuant to constitutional legislative authority, whereby
mutual or reciprocal benefits accrue and rights and obligations arise therefrom, and if the law granting
the authority to enter into such contract does not provide for or name the officer against whom action
may be brought in the event of a breach thereof, the state itself may be sued even without its consent,
because by entering into a contract the sovereign state has descended to the level of the citizen and
consent to be sued is implied from the very act entering into such contract. If the dignity of the state,
the sacredness of the institution, the respect for the government are to be preserved and the dragging
of its name in a suit to be prevented, the legislative department should name the officer or agent against
whom the action may be brought in the event of breach of the contract entered into under its name and
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
224
authority. And the omission or failure of the legislative department to do so is no obstacle or impediment
for an individual or citizen, who is aggrieved by the breach of the contract, to bring an action against
the state itself for the reasons already adverted to, to wit: the descent of the sovereign state to the level
of the individual or citizen with whom it entered into a contract and its consent to be sued implied from
the act of entering into such contract.
Considering that the United States Government, through its agency at Subic Bay, entered into a
contract with appellant for stevedoring and miscellaneous labor services within the Subic Bay area,
a U. S. Navy Reservation, it is evident that it can bring an action before our courts for any contractual
liability that political entity may assume under the contract.

2. Should Lyons desire to obtain a remedy under the contract, its remedy is to file its claim, not with the
court, but With the Contracting Officer who is empowered to act and render a decision. If dissatisfied
with his decision, plaintiff may appeal to the Secretary of the Navy where he would be "afforded an
opportunity to be heard and to offer evidence in support of its appeal", and the decision of the Secretary
shall be final and conclusive "unless determined by a court of competent jurisdiction to have been
fraudulent, arbitrary, capricious, or so grossly erroneous as necessary to imply bad faith." Hence, it is
only after the claim has been decided on appeal by the Secretary that plaintiff can resort to a court of
competent jurisdiction.
It appearing in the complaint that appellant has not complied with the procedure laid down in Article
XXI of the contract regarding the prosecution of its claim against the United States Government, or,
stated differently, it has failed to first exhaust its administrative remedies against said Government,
the lower court acted properly in dismissing this case.

Digested by: Michaela Sarmiento

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
225
14. U.S., Capt. Jams Galloway, William Collins and Robert Gohier vs Hon. V.M. Ruiz and Eligio
de Guzman & Co., Inc.
G.R. No. L-35645; May 22, 1985
Ponente: Abad Santos, J

FACTS:
U.S. has a naval base in Subic, Zambales as provided in the Military Bases Agreement between
Philippines and the US. In May 1972, US invited submission of bids for repair offender system, Alava
Wharf, typhoon damage to NAS Cubi shoreline and shoreline revetmebnt, NAVBASE Subic and to
Leyte Wharf approach. Private respondent Eligio de Guzman & Co., Inc. responded to said invitation,
which received two telegrams from US requesting the confirmation of its price proposals and name of
its bonding company. In June 1972, the company received a letter signed by Wilham Collins telling that
it did not qualify to receive an award for the project because of its previous unsatisfactory performance
rating on a repair contract for the sea wall at the boat landings of US Naval Station in Subic Bay; and
that the project was already given to a third party. The company, thus, sued US and Messrs James
Galloway, William Collins and Robert Gohier all members of the Engineering Command of US Navy.
The complaint is to order the defendants to allow the plaintiff to perform the work on the projects and,
in the event that specific performance was no longer possible, to order the defendants to pay damages.
The company also asked for the issuance of a writ of preliminary injunction to restrain the defendants
from entering into contracts with third parties for work on the projects.
The defendants entered their special appearance for the purpose only of questioning the
jurisdiction of this court over the subject matter of the complaint and the persons of defendants, the
subject matter of the complaint being acts and omissions of the individual defendants as agents of
defendant United States of America, a foreign sovereign which has not given her consent to this suit or
any other suit for the causes of action asserted in the complaint. Subsequently, defendants filed a
motion to dismiss but was denied. The trial court issued the writ, defendants moved twice to reconsider
but to no avail. Defendants filed the instant petition, which seeks to restrain said proceedings for lack
of jurisdiction on the part of the trial court.

ISSUE:
Whether or not the trial court has jurisdiction over the case

HELD:
NO. The traditional rule of State immunity exempts a State from being sued in the courts of
another State without its consent or waiver. This rule is a necessary consequence of the principles of
independence and equality of States. However, the rules of International Law are not petrified; they are
constantly developing and evolving. Moreover, because the activities of states have multiplied, it has
been necessary to distinguish them-between sovereign and governmental acts (jure imperii) and
private, commercial and proprietary acts (jure gestionis). The result is that State immunity now extends
only to acts jure imperii.
Hon. V.M. Ruiz recognized said doctrine of State immunity as he ruled that repair of the wharves
or shorelines is not a governmental function although it may partake of a public nature or character.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
226
However, the Court ruled that the restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or
economic affairs. It does not apply where the contract relates to the exercise of its sovereign functions.
In this case, the projects are an integral part of the naval base, which is devoted to the defense of both
the United States and the Philippines, indisputably a function of the government of the highest order;
they are not utilized for nor dedicated to commercial or business purposes. Hence, the petition was
granted and the orders of Hon. V.M. Ruiz was dismissed and set aside.

Submitted By:
Salmasan, Ivan Japeth V.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
227
15. M.H. Wylie v. Aurora Rarang
G.R. No. 74135
Facts:

In February, 1978, petitioner M. H. Wylie was the assistant administrative officer while petitioner Capt.
James Williams was the commanding officer of the U. S. Naval Base in Subic Bay, Olongapo City.
Private respondent Aurora I. Rarang was an employee in the office of the Provost Marshal assigned as
merchandise control guard.
M. H. Wylie wrote, in his capacity as assistant administrative officer supervising the publication “Plan
of the Day”, impugned malicious acts against a certain “Auring” who allegedly consumes confiscated
items as cigarettes and food stuffs. Furthermore, he wrote that “Auring” is a disgrace to her division
and to the Office of the Provost Marshal.
The private respondent was the only one who was named "Auring" in the Office of the Provost Marshal.
The private respondent then commenced an action for damages in the Court of First Instance of
Zambales (now Regional Trial Court) against M. H. Wylie, Capt. James Williams and the U. S. Naval
Base. She alleged that the article constituted false, injurious, and malicious defamation and libel tending
to impeach her honesty, virtue and reputation exposing her to public hatred, contempt and ridicule; and
that the libel was published and circulated in the English language and read by almost all the U. S.
Naval Base personnel. She prayed that she be awarded P300,000.00 as moral damages; exemplary
damages which the court may find proper; and P50,000.00 as attorney's fees.
In response to the complaint, the defendants filed a motion to dismiss anchored on three grounds:
1. Defendants M. H. Wylie and Capt. James Williams acted in the performance of their official functions
as officers of the United States Navy and are, therefore, immune from suit;
2. The United States Naval Base is an instrumentality of the US government which cannot be sued
without its consent; and
3. This Court has no jurisdiction over the subject matter as well as the parties in this case. (Record on
Appeal, pp. 133-134)

Issue: WON the court has jurisdiction over the matter

Held:
Yes. The general rule is that public officials can be held personally accountable for acts claimed to have
been performed in connection with official duties where they have acted ultra vires or where there is
showing of bad faith. Immunity from suit cannot institutionalize irresponsibility and non-accountability
nor grant a privileged status not claimed by any other official of the Republic.

It may be argued that Captain James Williams as commanding officer of the naval base is far removed
in the chain of command from the offensive publication and it would be asking too much to hold him
responsible for everything which goes wrong on the base. This may be true as a general rule. In this
particular case, however, the records show that the offensive publication was sent to the commanding
officer for approval and he approved it.
Indeed the imputation of theft contained in the POD dated February 3, 1978 is a defamation against
the character and reputation of the private respondent. Petitioner Wylie himself admitted that the Office
of the Provost Marshal explicitly recommended the deletion of the name Auring if the article were
published. The petitioners, however, were negligent because under their direction they issued the
publication without deleting the name "Auring." Such act or omission is ultra vires and cannot be part
of official duty. It was a tortious act which ridiculed the private respondent. As a result of the petitioners'

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
228
act, the private respondent, according to the record, suffered besmirched reputation, serious anxiety,
wounded feelings and social humiliation, specially so, since the article was baseless and false. The
petitioners, alone, in their personal capacities are liable for the damages they caused the private
respondent.

Submitted by ALIH

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
229
16. UNITED STATES OF AMERICA and MAXINE BRADFORD, petitioners,
vs.
HON. LUIS R. REYES, as Presiding Judge of Branch 22, Regional Trial Court of Cavite, and
NELIA T. MONTOYA, respondents.

G.R. No. 79253 March 1, 1993

FACTS:
Respondent Nelia Montoya, an American Citizen, worked as an ID checker at the US Navy Exchange
(NEX) at the US Military Assistance Group (JUSMAG) headquarters in Quezon City. She’s married to
Edgardo Montoya, a Filipino-American serviceman employed by the US Navy & stationed in San
Francisco.

Petitioner Maxine is an American Citizen employed at the JUSMAG headquarters as the activity
exchange manager.

Jan. 22, 1987 – Montoya bought some items from the retail store Bradford managed, where she had
purchasing privileges. After shopping & while she was already at the parking lot, Mrs. Yong Kennedy,
a fellow ID checker approached her & told her that she needed to search her bags upon Bradford’s
instruction. Montoya approached Bradford to protest the search but she was told that it was to be made
on all JUSMAG employees on that day. Mrs. Kennedy then performed the search on her person, bags
& car in front of Bradford & other curious onlookers. Nothing irregular was found thus she was allowed
to leave afterwards.

Montoya learned that she was the only person subjected to such search that day & she was informed
by NEX Security Manager Roynon that NEX JUSMAG employees are not searched outside the store
unless there is a strong evidence of a wrong-doing. Montoya can’t recall any circumstance that would
trigger suspicion of a wrong-doing on her part. She is aware of Bradford’s propensity to suspect Filipinos
for theft and/or shoplifting.

Montoya filed a formal protest w/Mr. Roynon but no action was taken.
Montoya filed a suit against Bradford for damages due to the oppressive & discriminatory acts
committed by petitioner in excess of her authority as store manager. She claims that she has been
exposed to contempt & ridicule causing her undue embarrassment & indignity. She further claims that
the act was not motivated by any other reason aside from racial discrimination in our own land w/c is a
blow to our national pride & dignity. She seeks for moral damages of P500k and exemplary damages
of P100k.

May 13, 1987 – Summons & complaint were served on Bradford but instead of filing an answer, she
along with USA government filed a motion to dismiss on grounds that: (1) this is a suit against US w/c
is a foreign sovereign immune from suit w/o its consent and (2) Bradford is immune from suit for acts
done in the performance of her official functions under Phil-US Military Assistance Agreement of 1947
& Military Bases Agreement of 1947. They claim that US has rights, power & authority w/in the bases,
necessary for the establishment, use & operation & defense thereof. It will also use facilities & areas
w/in bases & will have effective command over the facilities, US personnel, employees, equipment &
material. They further claim that checking of purchases at NEX is a routine procedure observed at base
retail outlets to protect & safeguard merchandise, cash & equipment pursuant to par. 2 & 4(b) of
NAVRESALEACT SUBIC INST. 5500.1.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
230
July 6, 1987 – Montoya filed a motion for preliminary attachment claiming that Bradford was about to
leave the country & was removing & disposing her properties w/intent to defraud her creditors. Motion
granted by RTC.
July 14, 1987 – Montoya opposed Bradford’s motion to dismiss. She claims that:
(1) search was outside NEX JUSMAG store thus it’s improper, unlawful & highly-discriminatory and
beyond Bradford’s authority;
(2) due to excess in authority and since her liability is personal, Bradford can’t rely on sovereign
immunity;
(3) Bradford’s act was committed outside the military base thus under the jurisdiction of Philippine
courts;
(4) the Court can inquire into the factual circumstances of case to determine WON Bradford acted w/in
or outside her authority.

RTC granted Montoya’s motion for the issuance of a writ of preliminary attachment and later on issued
writ of attachment opposed by Bradford. Montoya allowed to present evidence & Bradford declared in
default for failure to file an answer. RTC ruled in favor of Montoya claiming that search was
unreasonable, reckless, oppressive & against Montoya’s liberty guaranteed by Consti. She was
awarded P300k for moral damages, P100k for exemplary damages & P50k for actual expenses.
Bradford filed a Petition for Restraining Order. SC granted TRO enjoining RTC from enforcing decision.
Montoya claims that Bradford was acting as a civilian employee thus not performing governmental
functions. Even if she were performing governmental acts, she would still not be covered by the
immunity since she was acting outside the scope of her authority. She claims that criminal acts of a
public officer/employee are his private acts & he alone is liable for such acts. She believes that this
case is under RP courts’ jurisdiction because act was done outside the territorial control of the US
Military Bases, it does not fall under offenses where US has been given right to exercise its jurisdiction
and Bradford does not possess diplomatic immunity. She further claims that RP courts can inquire into
the factual circumstances & determine WON Bradford is immune.

ISSUES:
1. WON the case is under the RTC’s jurisdiction - YES
2. WON RTC committed a grave abuse of discretion in denying Bradford’s motion to dismiss. - NO
3. WON case at bar is a suit against the State. - NO
4. WON Bradford enjoys diplomatic immunity. - NO

HELD:
1. Intervention of a third party is discretionary upon the Court. US did not obtain leave of court
(something like asking for Court’s permission) to intervene in the present case. Technically, it should
not be allowed to intervene but since RTC entertained its motion to dismiss, it is deemed to have
allowed US to intervene. By voluntarily appearing, US must be deemed to have subjected itself to
RTC’s jurisdiction.

2. Petitioners failed to specify any grounds for a motion to dismiss enumerated in Sec. 1, Rule 16, Rules
of Court. Thus, it actually lacks cause of action. A cause of action is necessary so that Court would be
able to render a valid judgment in accordance with the prayer in the complaint. A motion to dismiss w/c
fails to state a cause of action hypothetically admits the truth of the allegations in the complaint. RTC
should have deferred the resolution instead of denying it for lack of merit. But this is immaterial at this
time since petitioners have already brought this petition to the SC.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
231
3. Doctrine of state immunity is expressed in Art. XVI, Sec. 3 of the 1987 Constitution. This immunity
also applies to complaints filed against officials of the state for acts allegedly performed by them in
discharge of their duties since it will require the state to perform an affirmative act such as appropriation
of amount to pay damages. This will be regarded as a case against the state even if it has not be
formally impleaded. But this is not all encompassing. It’s a different matter where the public official is
made to account in his capacity as such for acts contrary to law & injurious to rights of plaintiff. State
authorizes only legal acts by its officers. Action against officials by one whose rights have been violated
by such acts is not a suit against the State w/in the rule of immunity of the State from suit. The doctrine
of state immunity cannot be used as an instrument for perpetrating an injustice. It will not apply & may
not be invoked where the public official is being sued in his private & personal capacity as an ordinary
citizen. This usually arises where the public official acts w/o authority or in excess of the powers vested
in him. A public official is liable if he acted w/malice & in bad faith or beyond the scope of his authority
or jurisdiction. (Shauf vs. CA) Also, USA vs. Guinto declared that USA is not conferred with blanket
immunity for all acts done by it or its agents in the Philippines merely because they have acted as
agents of the US in the discharge of their official functions. In this case, Bradford was sued in her
private/personal capacity for acts done beyond the scope & place of her official function, thus, it falls
w/in the exception to the doctrine of state immunity.

4. First of all, she is not among those granted diplomatic immunity under Art. 16(b) of the 1953 Military
Assistance Agreement creating the JUSMAG. Second, even diplomatic agents who enjoy immunity are
liable if they perform acts outside their official functions (Art. 31, Vienna Convention on Diplomatic
Relations).

Petition denied. TRO lifted.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
232
17. JUSMAG Philippines v NLRC and Florencio Sacramento
GR No. 108813
December 15, 1994

Doctrine:
As it stands now, the application of the doctrine of immunity from suit has been restricted to sovereign
or governmental activities ( jure imperii). The mantle of state immunity cannot be extended to
commercial, private and proprietary acts ( jure gestionis).
FACTS:
Private respondent (Florencio Sacramento) was one of the seventy-four (74) security assistance
support personnel (SASP) working at JUSMAG-Philippines. He had been with JUSMAG from
December 18, 1969, until his dismissal on April 27, 1992. When dismissed, he held the position of
Illustrator 2 and was the incumbent President of JUSMAG PHILIPPINES-FILIPINO CIVILIAN
EMPLOYEES ASSOCIATION (JPFCEA). His services were terminated allegedly due to the abolition
of his position. He was also advised that he was under administrative leave until April 27, 1992, although
the same was not charged against his leave.
On March 31, 1992, private respondent filed a complaint with DOLE on the ground that he was illegally
suspended and dismissed from service by JUSMAG. He asked for his reinstatement. JUSMAG then
filed a Motion to Dismiss invoking its immunity from suit as an agency of the United States. It further
alleged lack of employer-employee relationship and that it has no juridical personality to sue and be
sued. In a Resolution, dated January 29, 1993, the NLRC reversed the ruling of the Labor Arbiter as it
held that petitioner had lost its right not to be sued. The resolution was predicated on two grounds: (1)
the principle of estoppel — that JUSMAG failed to refute the existence of employer-employee
relationship under the "control test"; and (2) JUSMAG has waived its right to immunity from suit when
it hired the services of private respondent on December 18, 1969.
JUSMAG was created pursuant to the Military Assistance Agreement dated March 21, 1947, between
the Government of Philippines and USA. As agreed upon, JUSMAG shall consist of Air, Naval and
Army group, and its primary task was to advise and assist the Philippines, on air force, army and naval
matters. In Note No 22, addressed to the Department of Foreign Affairs (DFA) of the Philippines, dated
January 23, 1991, the United States Government, thru its Embassy, manifested its preparedness "to
provide funds to cover the salaries of security assistance support personnel" and security guards, the
rent of JUSMAG occupied buildings and housing, and the cost of utilities. This offer was accepted by
our Government, thru the DFA, in Note No. 911725, dated April 18, 1991. Consequently, a
Memorandum of Agreement was forged between the Armed Forces of the Philippines and JUSMAG-
Philippines, thru General Lisandro C. Abadia and U.S. Brigadier General Robert G. Sausser. The
Agreement delineated the terms of the assistance-in-kind of JUSMAG for 1991.

ISSUE:
WON JUSMAG, as an agency of US, may invoke immunity from suit?

HELD:

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
233
From the foregoing, it is apparent that when JUSMAG took the services of private respondent, it was
performing a governmental function on behalf of the United States pursuant to the Military Assistance
Agreement dated March 21, 1947. Hence, we agree with petitioner that the suit is, in effect, one against
the United States Government, albeit it was not impleaded in the complaint. Considering that the United
States has not waived or consented to the suit, the complaint against JUSMAG cannot not prosper.

Immunity of State from suit is one of these universally recognized principles. In international law,
"immunity" is commonly understood as an exemption of the state and its organs from the judicial
jurisdiction of another state. This is anchored on the principle of the sovereign equality of states under
which one state cannot assert jurisdiction over another in violation of the maxim par in parem non habet
imperium (an equal has no power over an equal).
As it stands now, the application of the doctrine of immunity from suit has been restricted to sovereign
or governmental activities ( jure imperii). The mantle of state immunity cannot be extended to
commercial, private and proprietary acts ( jure gestionis).
Conversely, if the contract was entered into in the discharge of its governmental functions, the
sovereign state cannot be deemed to have waived its immunity from suit. Such is the case at bench.
Prescinding from this premise, we need not determine whether JUSMAG controls the employment
conditions of the private respondent.

By: SJ Dadayan

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
234
18. Forbes et al vs. Chuoco Tiaco & Crossfiled
Topic: Presidential immunity from suit; president is immune from civil liability and may not be sued
during his tenure.
Facts:
An original action commenced in this court to secure a writ of prohibition against Hon. A. S. Crossfield,
as one of the judges of the CFI of Manila, to prohibit him from taking or continuing jurisdiction in a
certain case commenced and pending before him, in which Chuoco Tiaco (alias Choa Tea) (respondent
herein) is plaintiff, and W. Cameron Forbes, J. E. Harding, and C. R. Trowbridge (petitioners herein)
are defendants.
The plaintiffs are W. Cameron Forbes, Governor-General of Philippine Islands and J.E. Harding, Chief
of Police and Trowbridge, Chief of Secret Service of Manila. Defendant A. S. Crossfield is one of the
judges of the Court of First Instance of the city of Manila and defendant Chuoco Tiaco (alias Choa Tea)
is a foreigner of Chinese nationality and a subject of the Chinese Empire. He is a resident of Philippines
for almost 35 years and have a family and properties in this country.
On the April 1, 1910, the defendant Chuoco Tiaco filed a suit in CFI Manila against the plaintiffs, alleging
that sometime in August 1909, under the orders of the said Governor-General, he was forcibly deported
therefrom and sent to Amoy, China, by J. E. Harding and C. R. Trowbridge and forcibly prevented his
return for some months in violation of his right to be and remain in the Philippines as provided by law.
The said complaint having been filed with the defendant Judge Crossfield, he issued against the
plaintiffs the injunction requested, prohibiting them from deporting the defendant Chuoco Tiaco. In
return, plaintiffs sued for writ of prohibition against defendant Judge, alleging that such expulsion was
carried out in the public interest of the Government and at the request of the proper representative of
the Chinese Government in these Islands.
Issues:
I. Whether or not the act of Governor-General was the act of Philippines and having an inherent
right as representative of Government, to deport and/or expel the defendant.
II. Whether or not he had the right to use his own official judgment and discretion in the exercise
of such power in the absence of express rules and regulation.
III. Whether or not a Governor General as Chief Executive can be sued in civil actions.

Ruling:
I. Yes, the power to exclude or expel aliens being a power affecting international relations is vested
in the political department of the Government. The power to exclude aliens and the power to expel them
rest upon one foundation, are derived from one source, are supported by the same reasons, and are,
in truth, but the exercise of one and the same power.

Every nation has the right to refuse to admit a foreigner into the country when he can not enter without
putting the nation in evident danger or doing it manifest injury. What it (the nation) owes to itself, the
care of its own safety, gives to it this right; and in virtue of its national liberty, it belongs to the nation to
judge whether its circumstances will or will not justify the admission of the foreigner. Thus, also, it has

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
235
a right to send them elsewhere it if has just cause to fear that they will corrupt the manners of the
citizens; that they will create religious disturbances or occasion any other disorder contrary to the public
safety. In a word, it has a right, and is even obliged in this respect, to follow the rules which prudence
dictates." (Vattel's Law of Nations, book 1, Chapter 19, secs. 230, 231.)
This implied or inherent right in the Government to prevent aliens from entering its territory or to deport
or expel them after entrance, has not only been recognized by the courts and eminent writers of
international law, but has also been recognized many times by the executive and legislative branches
of the Government.

II. Yes, since its enforcement belongs peculiarly to the political department of the government, it
need not be defined by express legislation, although in some States the legislative department of the
government has prescribed the condition and the method under which and by which it shall be carried
into operation. The mere absence of legislation regulating this inherent right to deport or expel aliens
is not sufficient to prevent the chief executive head of the government, acting in his own sphere and in
accordance with his official duty, to deport or expel objectionable aliens, when he deems such] action
necessary for the peace and domestic tranquility of the nation. It neither proves that the power does
not exist nor that the executive head of the government may not adopt himself such methods as he
may deem advisable for the public good and the public safety. He can only be controlled in the
conditions and methods as to when and have the powers shall be exercised. The right itself can not be
destroyed or bartered away

One of the principal duties of the chief executive of a nation is to preserve peace and order within the
territory. To do this he is possessed of certain powers. It is believed and asserted to be sound doctrine
of political law that if in a particular case he finds that there are aliens within its territory whose continued
presence is injurious to the public interest, he may, even in the absence of express law, deport them.
In this case, it is admitted that the act of the Governor-General in deporting the defendant was in
compliance with a request made by the official representative of the Imperial Government of China. It
would seem, therefore, that said request, in the absence of any other power, would be sufficient
justification of his act. The mere fact that a citizen or subject is out of the territory of his country does
not relieve him from that allegiance which he owes to his government, and his government may, under
certain conditions, properly and legally request his return. This power is expressly recognized by the
Congress of the United States.

III. NO. The power of Governor-General to deport or expel obnoxious aliens being invested in the
political department of the Government, the judicial department will not, in the absence of express
legislative authority, intervene for the purpose of controlling such power, nor the purpose of inquiring
whether or not he is liable in damages for the exercise thereof.

The principle of non-liability, as herein enunciated, does not mean that the judiciary has no authority to
touch the acts of the Governor-General; that he may, under cover of his office, do what he will,
unimpeded and restrained. This does not mean, neither, that a person injured by the executive authority
by an act unjustifiable under the law has no remedy, but must submit in silence.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
236
In fact, it means, that the Governor-General, like the judges of the courts and the members of the
legislature, may not be personally mulcted in civil damages for the consequences of an execution in
the performance of his official duties.
The judiciary has full power to, and will, when the matter is properly presented to it and the occasion
justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as
possible in status quo any person who has been deprived of his liberty or his property by such act. This
remedy is assured every person, however humble or of whatever country, when his personal or property
rights have been invaded, even by the highest authority of the state.
The thing which the judiciary can not do is to mulct the Governor-General personally in
damages which result from the performance of his official duty, any more than it can a member
of the Philippine Commission or the Philippine Assembly. Public policy forbids it.
The principle of non - liability does not also mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it clearly
appears from the discussion heretofore had, particularly that portion which touched the liability of judges
and drew an analogy between such liability and that of the Governor-General, that the latter is liable
when he acts in a case so plainly outside of his power and authority that he can not be said to have
exercised discretion in determining whether or not he had the right to act.
To sum up, a Governor-General will be protected from personal liability for damages not only when we
acted within his official function or within the scope of his authority, but also when he is without authority,
PROVIDED that he actually used discretion and judgment, Judicial Faculty, in determining whether he
had in fact an authority to act or not. Otherwise, he must answer for the consequences of his act as he
is acting as a private individual and not as a Governor-General.
Conclusions:
First. That the Government of the United States in the Philippine Islands is a government possessed
with "all the military, civil, and judicial powers necessary to govern the Philippine Islands" and as such
has the power and duty, through its political department, to deport aliens whose presence in the territory
is found to be injurious to the public good and domestic tranquility of the people.
Second. That the Governor-General, acting in his political and executive capacity, is invested with
plenary power to deport obnoxious aliens, whose continued presence in the territory is found by him to
be injurious presence to the public interest, and in the method of deporting or expelling them, he may
use such method as his official judgment and good conscience may dictate.
Third. That this power to deport or expel obnoxious aliens being invested in the political
department of the Government, the judicial department will not, in the absence of express
legislative authority, intervene for the purpose of controlling such power, nor the purpose of
inquiring whether or not he is liable in damages for the exercise thereof.
Submitted By: de Leon

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
237
20.SANDERS VS. VERDIANO

DOCTRINE: The mere allegation that a government functionary is being sued in his personal capacity
will not automatically remove him from the protection of the law of public officers and, if appropriate,
the doctrine of state immunity. By the same token, the mere invocation of official character will not
suffice to insulate him from suability and liability for an act imputed to him as a personal tort committed
without or in excess of his authority. These well-settled principles are applicable not only to the officers
of the local state but also where the person sued in its courts pertains to the government of a foreign
state. The practical justification for the doctrine, as Holmes put it, is that "there can be no legal right
against the authority which makes the law on which the right depends. In the case of foreign
states, the rule is derived from the principle of the sovereign equality of states which wisely
admonishes that par in parem non habet imperium and that a contrary attitude would "unduly
vex the peace of nations."

FACTS: Sanders was the special services director of the U.S. Naval Station (NAVSTA) in Olongapo
City. Petitioner Moreau was the commanding officer of the Subic Naval Base, which includes the said
station.

Private respondent Rossi and Wyer (died two years ago) are American citizens. Both were employed
as gameroom attendants in the special services department of the NAVSTA - 1971 and 1969
respectively.
 October 3, 1975, the private respondents were advised that their employment had been
converted from permanent full-time to permanent part-time. They opposed this conversion
and protested .
 On May 17, 1976, Sanders disagreed with the recommendation. The letter received by
Moreau stated: a ) "Mr. Rossi tends to alienate most co-workers and supervisors;" b) "Messrs.
Rossi and Wyers have proven, according to their immediate supervisors, to be difficult
employees to supervise;" and c) "even though the grievants were under oath not to discuss the
case with anyone, (they) placed the records in public places where others not involved in the
case could hear."
 On November 7, 1975, before the start of the grievance hearings, a letter purportedly coming
from petitioner Moreau as the commanding general of the U.S. Naval Station in Subic Bay was
sent to the Chief of Naval Personnel explaining the change of the private respondent's
employment status and requesting concurrence therewith. The letter did not carry his
signature but was signed by W.B. Moore, Jr. "by direction," presumably of Moreau.

Rossi and Wyer now filed with the CFI of Olongapo City a for damages, alleging that the letters
contained libelous imputations which cause them mental anguish moreover, the prejudgment of the
grievance proceedings was an invasion of their personal and proprietary rights.

Respondents insisted that petitioners are being sued in their private or personal capacity. Petitioners
argued that the acts complained of were performed by them in the discharge of their official duties thus
the court had no jurisdiction over them under the doctrine of state immunity.

The Motion was denied on the ground that the petitioners had not presented any evidence that their
acts were official in nature and not personal torts, moreover, the allegation in the complaint was that
the defendants had acted maliciously and in bad faith. The same order issued a writ of preliminary
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
238
attachment against the properties of petitioner Moreau, who allegedly was then about to leave the
Philippines - but was declared in a default.

Hence, the petition.

ISSUE: W/N Sanders et. al, were performing their OFFICIAL duties when they did the acts for which
they have been sued? YES.

HELD/RULING: It is stressed at the outset that the mere allegation that a government functionary is
being sued in his personal capacity will not automatically remove him from the protection of the law of
public officers and, if appropriate, the doctrine of state immunity. By the same token, the mere
invocation of official character will not suffice to insulate him from suability and liability for an act imputed
to him as a personal tort committed without or in excess of his authority. These well-settled principles
are applicable not only to the officers of the local state but also where the person sued in its courts
pertains to the government of a foreign state, as in the present case.

The respondent judge, apparently finding that the complained acts were prima facie personal and
tortious, decided to proceed to trial to determine inter alia their precise character on the strength of the
evidence to be submitted by the parties. The petitioners have objected, arguing that no such evidence
was needed to substantiate their claim of jurisdictional immunity.
The Court held in several cases that suits could not prosper because the acts complained of
were covered by the doctrine of state immunity.

It is abundantly clear in the present case that the acts of petitioners complained of are in the discharge
of their official duties. Sanders, as director of the special services department of NAVSTA, undoubtedly
had supervision over its personnel, including the private respondents, and had a hand in their
employment, work assignments, discipline, dismissal and other related matters. It is not disputed that
the letter he had written was in fact a reply to a request from his superior, the other petitioner, for more
information regarding the case of the private respondents. Moreover, even in the absence of such
request, he still was within his rights in reacting to the hearing officer's criticism—in effect a direct attack
against him—-that Special Services was practicing "an autocratic form of supervision."

As for Moreau,what he claimed to have done was to write the Chief of Naval Personnel for concurrence
with the conversion of the private respondents' type of employment even before the grievance
proceedings had even commenced - this act is clearly official in nature - as the immediate superior of
Sanders and directly answerable to Naval Personnel in matters involving the special services
department of NAVSTA. In fact, the letter dealt with the financial and budgetary problems of the
department and contained recommendations for their solution, including the re-designation of the
private respondents. There was nothing personal or private about it.

Given the official character of the above-described letters it is clear that petitioners are being sued as
officers of the United States government. As they have acted on behalf of that government, and within
the scope of their authority, it is that government, and not the petitioners personally, that is
responsible for their acts. Assuming that the trial can proceed and it is proved that the claimants have
a right to the payment of damages, such award will have to be satisfied not by the petitioners in their
personal capacities but by the United States government as their principal. This will require that
government to perform an affirmative act to satisfy the judgment, viz, the appropriation of the necessary
amount to cover the damages awarded, thus making the action a suit against that government without
its consent.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
239
There should be no question by now that such complaint cannot prosper unless the government sought
to be held ultimately liable has given its consent to' be sued. As uphled in many cases, the doctrine of
state immunity is not applicable only to our own government but also to foreign states sought to be
subjected to the jurisdiction of our courts.

The practical justification for the doctrine, as Holmes put it, is that "there can be no legal right against
the authority which makes the law on which the right depends. In the case of foreign states, the
rule is derived from the principle of the sovereign equality of states which wisely admonishes
that par in parem non habet imperium and that a contrary attitude would "unduly vex the peace
of nations."

Our adherence to this precept is formally expressed in Article II, Section 2, of our Constitution, where
we reiterate from our previous charters that the Philippines "adopts the generally accepted principles
of international law as part of the law of the land.

All this is not to say that in no case may a public officer be sued as such without the previous consent
of the state. But there are exceptions such as when an officer can be sued on a personal tort when he
acted without or in excess of authority - State’s consent not need for the unauthorized act. We have
also held that where the government itself has violated its own laws, the aggrieved party may directly
implead the government even without first filing his claim with the Commission on Audit as normally
required, as the doctrine of state immunity "cannot be used as an instrument for perpetrating an
injustice."

The case at bar, to repeat, comes under the rule and not under any of the recognized exceptions. The
government of the United States has not given its consent to be sued for the official acts of the
petitioners, who cannot satisfy any judgment that may be rendered against them. As it is the American
government itself that will have to perform the affirmative act of appropriating the amount that may be
adjudged for the private respondents, the complaint must be dismissed for lack of jurisdiction.

The Court finds that, even under the law of public officers, the acts of the petitioners are protected by
the presumption of good faith, which has not been overturned by the private respondents.

A final consideration is that since the questioned acts were done in the Olongapo Naval Base by the
petitioners in the performance of their official duties and the private respondents are themselves
American citizens, it would seem only proper for the courts of this country to refrain from taking
cognizance of this matter and to treat it as coming under the internal administration of the said base.

The private respondents must pursue their claim in accordance with the laws of the United States, of
which they are all citizens and under whose jurisdiction the alleged offenses were committed. Even
assuming that our own laws are applicable, the United States government has not decided to give its
consent to be sued in our courts, which therefore has not acquired the competence to act on the said
claim,.

WHEREFORE, the petition is GRANTED.


Digested by: Tolentino, Ma. Ana Fatima R.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
240
21. US vs GUINTO

DOCTRINE: State has allowed itself to be sued. When the state does waive its sovereign immunity, it
is only giving the plaintiff the chance to prove, if it can, that the defendant is liable. The said article
establishes a rule of liability, not suability. The government may be held liable under this rule only if it
first allows itself to be sued through any of the accepted forms of consent. Moreover, the agent
performing his regular functions is not a special agent even if he is so denominated, as in the case at
bar. No less important, the said provision appears to regulate only the relations of the local state with
its inhabitants and, hence, applies only to the Philippine government and not to foreign governments
impleaded in our courts. The complaints against the petitioners in the court below were aptly
dismissed.

FACTS: In the first case, the private respondents are suing several officers of the U.S. Air Force
stationed in Clark Air Base in connection with the bidding conducted by them for contracts for barber
services in the base.
In the second case, private respondents filed a complaint for damages against private petitioners
for his dismissal as cook in the U.S. Air Force Recreation Center at the John Hay Air Station.
In the third case, private respondent, who was employed as a barracks boy in a U.S. Base, was
arrested following a buy-bust operation conducted by the individual petitioners, officers of the U.S. Air
Force and special agents of the Air Force Office of Special Investigators. He then filed a complaint for
damages against the individual petitioners claiming that it was because of their acts that he was
removed.
In the fourth case, a complaint for damages was filed by the private respondents against the
private petitioners, for injuries allegedly sustained by the plaintiffs as a result of the acts of the
defendants. According to the plaintiffs, the defendants beat them up, handcuffed them and unleashed
dogs on them which bit them in several parts of their bodies and caused extensive injuries to them.
These cases have been consolidated because they all involve the doctrine of state immunity.
The United States of America was not impleaded in the complaints below but has moved to dismiss on
the ground that they are in effect suits against it to which it has not consented. It is now contesting the
denial of its motions by the respondent judges.

ISSUE: Whether or not the Doctrine of State Immunity is not applicable thereby making the State liable

HELD: NO. While suable, the petitioners are nevertheless not liable. It is obvious that the claim for
damages cannot be allowed on the strength of the evidence, which have been carefully examined.
The traditional rule of immunity exempts a State from being sued in the courts of another State
without its consent or waiver. This rule is a necessary consequence of the principles of independence
and equality of States. However, the rules of International Law are not petrified; they are constantly
developing and evolving. And because the activities of states have multiplied, it has been necessary to
distinguish them - between sovereign and governmental acts (jure imperii) and private, commercial and
proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperii.
The restrictive application of State immunity is now the rule in the United States, the United
Kingdom and other states in Western Europe. The restrictive application of State immunity is proper
only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial
activities or economic affairs. Stated differently, a State may be said to have descended to the level of
an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters
into business contracts. It does not apply where the contract relates to the exercise of its sovereign
functions. In this case the projects are an integral part of the naval base which is devoted to the defense

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
241
of both the United States and the Philippines, indisputably a function of the government of the highest
order; they are not utilized for nor dedicated to commercial or business purposes.
There is no question that the United States of America, like any other state, will be deemed to
have impliedly waived its non-suability if it has entered into a contract in its proprietary or private
capacity, as in the cases at bar. It is only when the contract involves its sovereign or governmental
capacity that no such waiver may be implied. A State may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into
business contracts.
The private respondents invokes Article 2180 of the Civil Code which holds the government
liable if it acts through a special agent. The argument, it would seem, is premised on the ground that
since the officers are designated "special agents," the United States government should be liable for
their torts.
There seems to be a failure to distinguish between suability and liability and a misconception
that the two terms are synonymous. Suability depends on the consent of the state to be sued, liability
on the applicable law and the established facts. The circumstance that a state is suable does not
necessarily mean that it is liable; on the other hand, it can never be held liable if it does not first consent
to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When
the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can,
that the defendant is liable.
The said article establishes a rule of liability, not suability. The government may be held liable
under this rule only if it first allows itself to be sued through any of the accepted forms of consent.
Moreover, the agent performing his regular functions is not a special agent even if he is so
denominated, as in the case at bar. No less important, the said provision appears to regulate only the
relations of the local state with its inhabitants and, hence, applies only to the Philippine government
and not to foreign governments impleaded in our courts. The complaints against the petitioners in the
court below were aptly dismissed.

Lifted from Adonis Notes https://www.scribd.com/doc/286733718/Adonis-Notes-2015 [I personally


verified and i can attest to the quality of the digest :)- Emil Samaniego

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
242
22. PROFESSIONAL VIDEO, INC. (PROVI) V. TESDA (GR No. 155504, June 26, 2009)

DOCTRINE: Now, the fact that a non-corporate government entity performs a function proprietary in
nature does not necessarily result in its being suable. If said non-governmental function is undertaken
as an incident to its governmental function, there is no waiver thereby of the sovereign immunity from
suit extended to such government entity.

FACTS: PROVI is an entity engaged in the sale of high technology equipment, information technology
products and broadcast devices, including the supply of plastic card printing and security facilities.
TESDA is an instrumentality of the government established under Republic Act (R.A.) No. 7796 (the
TESDA Act of 1994) and attached to the Department of Labor and Employment (DOLE) to develop and
establish a national system of skills standardization, testing, and certification in the country. To fulfill
this mandate, it sought to issue security-printed certification and/or identification polyvinyl (PVC) cards
to trainees who have passed the certification process.

TESDAs Pre-Qualification Bids Award Committee (PBAC) conducted two (2) public biddings on June
25, 1999 and July 22, 1999 for the printing and encoding of PVC cards. A failure of bidding resulted in
both instances since only two (2) bidders PROVI and Sirex Phils. Corp. submitted proposals.
Due to the failed bidding, the PBAC recommended that TESDA enter into a negotiated contract with
PROVI. On December 29, 1999, TESDA and PROVI signed and executed their Contract Agreement
Project: PVC ID Card Issuance (the Contract Agreement) for the provision of goods and services in the
printing and encoding of PVC cards. Under this Contract Agreement, PROVI was to provide TESDA
with the system and equipment compliant with the specifications defined in the Technical Proposal. In
return, TESDA would pay PROVI the amount of P39,475,000 within fifteen (15) days after TESDAs
acceptance of the contracted goods and services.

On August 24, 2000, TESDA and PROVI executed an Addendum to the Contract Agreement Project:
PVC ID Card Issuance (Addendum), whose terms bound PROVI to deliver 100% of the enumerated
supplies to TESDA consisting of 500,000 pieces of security foil; 5 pieces of security die with TESDA
seal; 500,000 pieces of pre-printed and customized identification cards; 100,000 pieces of scannable
answer sheets; and 500,000 customized TESDA holographic laminate. In addition, PROVI would install
and maintain the following equipment: one (1) unit of Micropoise, two (2) units of card printer, three (3)
units of flatbed scanner, one (1) unit of OMR scanner, one (1) unit of Server, and seven (7) units of
personal computer. TESDA in turn undertook to pay PROVI 30% of the total cost of the supplies within
thirty (30) days after receipt and acceptance of the contracted supplies, with the balance payable within
thirty (30) days after the initial payment.
According to PROVI, it delivered the following items to TESDA on the dates indicated:
Date Particulars Amount

26 April 2000 48,500 pre-printed cards P 2,764,500.00

07 June 2000 330,000 pre-printed cards 18,810,000.00

07 August 121,500 pre-printed cards 6,925,500.00


2000

26 April 2000 100,000 scannable answer 600,000.00


sheets

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
243
06 June 2000 5 Micro-Poise customized die 375,000.00

13 June 2000 35 boxes @ 15,000 imp/box 10,000,000.00

Custom hologram Foil

Total P 39,475,000.00

PROVI further alleged that out of TESDAs liability of P39,475,000.00, TESDA paid PROVI only
P3,739,500.00, leaving an outstanding balance of P35,735,500.00, as evidenced by PROVIs
Statement of Account. Despite the two demand letters dated March 8 and April 27, 2001 that PROVI
sent TESDA, the outstanding balance remained unpaid.

On July 11, 2001, PROVI filed with the RTC a complaint for sum of money with damages against
TESDA. PROVI additionally prayed for the issuance of a writ of preliminary attachment/garnishment
against TESDA. In an Order dated July 16, 2001, the RTC granted PROVIs prayer and issued a writ of
preliminary attachment against the properties of TESDA not exempt from execution in the amount of
P35,000,000.00.

TESDA responded on July 24, 2001 by filing a Motion to Discharge/Quash the Writ of Attachment,
arguing mainly that public funds cannot be the subject of garnishment. The RTC denied TESDAs
motion, and subsequently ordered the manager of the Land Bank of the Philippines to produce TESDAs
bank statement for the garnishment of the covered amount.
Faced with these rulings, TESDA filed a Petition for Certiorari with the CA. The CA set aside the RTCs
orders after finding that: (a) TESDAs funds are public in nature and, therefore, exempt from
garnishment; and (b) TESDAs purchase of the PVC cards was a necessary incident of its governmental
function; consequently, it ruled that there was no legal basis for the issuance of a writ of preliminary
attachment/garnishment.

ISSUE: Whether or not the writ of attachment against TESDA and its funds, to cover PROVIs claim
against TESDA, is valid.

RULING: NO.
TESDA is an unincorporated instrumentality of the government, directly attached to the DOLE through
the participation of the Secretary of Labor as its Chairman, for the performance of governmental
functions i.e., the handling of formal and non-formal education and training, and skills development.
As an unincorporated instrumentality operating under a specific charter, it is equipped with both express
and implied powers, and all State immunities fully apply to it.

The rule that a state may not be sued without its consent is embodied in Section 3, Article XVI of the
1987 Constitution and has been an established principle that antedates this Constitution. It is as well a
universally recognized principle of international law that exempts a state and its organs from the
jurisdiction of another state. The principle is based on the very essence of sovereignty, and on the
practical ground that there can be no legal right as against the authority that makes the law on which
the right depends. It also rests on reasons of public policy that public service would be hindered, and
the public endangered, if the sovereign authority could be subjected to law suits at the instance of every
citizen and, consequently, controlled in the uses and dispositions of the means required for the proper
administration of the government.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
244
TESDA performs governmental functions, and the issuance of certifications is a task within its function
of developing and establishing a system of skills standardization, testing, and certification in the country.
From the perspective of this function, the core reason for the existence of state immunity applies i.e.,
the public policy reason that the performance of governmental function cannot be hindered or delayed
by suits, nor can these suits control the use and disposition of the means for the performance of
governmental functions.

As the appellate court found, the PVC cards purchased by TESDA from PROVI are meant to properly
identify the trainees who passed TESDAs National Skills Certification Program the program that
immediately serves TESDAs mandated function of developing and establishing a national system of
skills standardization, testing, and certification in the country. That TESDA sells the PVC cards to its
trainees for a fee does not characterize the transaction as industrial or business; the sale, expressly
authorized by the TESDA Act, cannot be considered separately from TESDAs general governmental
functions, as they are undertaken in the discharge of these functions.

TESDAs funds are still public in nature and, thus, cannot be the valid subject of a writ of garnishment
or attachment. Under Section 33 of the TESDA Act, the TESDA budget for the implementation of the
Act shall be included in the annual General Appropriation Act; hence, TESDA funds, being sourced
from the Treasury, are moneys belonging to the government, or any of its departments, in the hands of
public officials.

-CULAJARA

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
245
23. ATCI Overseas Corporation vs. Echin (G.R. No. 178551, October 11, 2010)

DOCTRINES:

- Doctrine of Procesual Presumption: The party invoking the application of a foreign law has the burden
proving the law, otherwise the same shall be presumed as similar to ours.
- To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24
and 25 of Rule 132 of the Revised Rules of Court.—The Philippines does not take judicial notice of
foreign laws, hence, they must not only be alleged; they must be proven. To prove a foreign law, the
party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the
Revised Rules of Court.

FACTS: Echin was hired by ATCI in behalf of its principal co-petitioner, Ministry of Public Health of
Kuwait, for the position of medical technologist under a two-year contract with a monthly salary of
US$1,200.00.Within a year, Respondent was terminated for not passing the probationary period which
was under the Memorandum of Agreement. Ministry denied respondents request and she returned to
the Philippines shouldering her own fair. Respondent filed with the NLRC a complaint against ATCI for
illegal dismissal. Labor Arbiter rendered judgment in favor of respondent and ordered ATCI to pay her
$3,600.00, her salary for the three months unexpired portion of the contract. ATCI appealed Labor
Arbiter decision, however, NLRC affirmed the latter's decision and denied petitioner ATCI's motion for
reconsideration. Petitioners maintain that they should not be held liable because respondents
employment contract specifically stipulates that her employment shall be governed by the Civil Service
Law and Regulations of Kuwait.

Issue: W/N petitioners be held liable considering that the contract specifically stipulates that
respondent's employment shall be governed by the Civil Service Law and Regulations of Kuwait

Ruling: Court denied the petition.


According to RA 8042: It is hornbook principle, however, that the party invoking the application of a
foreign law has the burden of proving the law, under the doctrine of processual presumption which, in
this case, petitioners failed to discharge. The Courts ruling in EDI-Staffbuilders Intl., v. NLRC
illuminates: In the present case, the employment contract signed by Gran specifically states that Saudi
Labor Laws will govern matters not provided for in the contract (e.g. specific causes for termination,
termination procedures, etc.). Being the law intended by the parties (lex loci intentiones) to apply to the
contract, Saudi Labor Laws should govern all matters relating to the termination of the employment of
Gran. In international law, the party who wants to have a foreign law applied to a dispute or case has
the burden of proving the foreign law. The foreign law is treated as a question of fact to be properly
pleaded and proved as the judge or labor arbiter cannot take judicial notice of a foreign law. He is
presumed to know only domestic or forum law. Unfortunately for petitioner, it did not prove the pertinent
Saudi laws on the matter; thus, the International Law doctrine of presumed-identity approach or
procesual presumption comes into play. Where a foreign law is not pleaded or, even if pleaded, is not
proved, the presumption is that foreign law is the same as ours. Thus, we apply Philippine labor laws
in determining the issues presented before us. (emphasis and underscoring supplied) The Philippines
does not take judicial notice of foreign laws, hence, they must not only be alleged; they must be proven.

To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24
and 25 of Rule 132 of the Revised Rules of Court which reads: SEC. 24. Proof of official record. The
record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose,
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
246
may be evidenced by an official publication thereof or by a copy attested by the officer having the legal
custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines,
with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign
country, the certificate may be made by a secretary of the embassy or legation, consul general, consul,
vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the
foreign country in which the record is kept, and authenticated by the seal of his office.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
247
24. CASE CONCERNING UNITED STATES DIPLOMATIC AND CONSULAR STAFF IN TEHRAN
(UNITED STATES vs IRAN)
[ ICJ, 24 May 1980 ]
Facts:

On 4 November 1979 there was an armed attack by Iranian students on the United States
Embassy in Tehran and they overtook it. The students, belonging to the Muslim Student Followers of
the Imam's Line, did this as an act of support to the Iranian Revolution. More than sixty American
diplomats and citizens were held hostage for 444 days (until January 20, 1981). Some of the hostages
were released earlier, but 52 hostages were held hostage until the end. Although Iran had promised
protection to the U.S. Embassy, the guards disappeared during the takeover and the government of
Iran did not attempt to stop it or rescue the hostages.
The U.S. arranged to meet with Iranian authorities to discuss the release of the hostages, but
Ayatollah Khomeini (the leader of the Iranian Revolution) forbid officials to meet them. The U.S. ceased
relations with Iran, stopped U.S. exports, oil imports, and Iranian assets were blocked.
Issue:

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

Iran was under obligation to make reparations for the injury caused to the United States.
The Court points out that the conduct of the militants on that occasion could be directly attributed to the
Iranian State only if it were established that they were in fact acting on its behalf. The information before
the Court did not suffice to establish this with due certainty. However, the Iranian State--which, as the
State to which the mission was accredited, was under obligation to take appropriate steps to protect
the United States Embassy--did nothing to prevent the attack, stop it before it reached its completion
or oblige the militants to withdraw from the premises anti release the hostages. This inaction was in
contrast with the conduct of the Iranian authorities on several similar occasions at the same period,
when they had taken appropriate steps.
Iran’s failure to take appropriate steps to protect the US embassy and Consulates was a violation of its
obligations under the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna Convention
on Consular Relations, and 1955 Treaty of Amity, Economic Relations and Consular Rights between
Iran and the United States. Iran had the international legal responsibility to keep the embassy inviolable.
Iran was fully aware of its obligations but it did nothing to prevent the take over and the captivity of the
US nationals.
Although the take-over of the embassy was not held to have been an act of the state, the consequent
detention of the US nationals was attributed to Iran because of its approval and support to said
detention, such act was a violation of the provisions in the aforenamed conventions and treaty. “Once
organs of the Iranian State had thus given approval to the acts complained of and decided to perpetuate
them as a means of pressure on the United States, those acts were transformed into acts of the Iranian

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
248
State: the militants became agents of that State, which itself became internationally responsible for
their acts.”

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

Thus, the Court decided (1) that Iran has violated and is still violating obligations owed by it to
the United States; (2) that these violations engage Iran's responsibility; (3) that the Government of Iran
must immediately release the United States nationals held as hostages and place the premises of the
Embassy in the hands of the protecting power; (4) that no member of the United States diplomatic or
consular staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate
in them as a witness; (5) that Iran is under an obligation to make reparation for the injury caused to the
United States; and (6) that the form and amount of such reparation, failing agreement between the
parties, shall be settled by the Court.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
249
26. REPUBLIC OF INDONESIA VS VINZON
G.R. No. 154705 405 SCRA 126
June 26, 2003

PARTIES:
THE REPUBLIC OF INDONESIA, HIS EXCELLENCY AMBASSADOR SOERATMIN, and MINISTER
COUNSELLOR AZHARI KASIM, petitioners
JAMES VINZON, doing business under the name and style of VINZON TRADE AND SERVICES,
respondent.

DOCTRINE:
Doctrine of Sovereign Immunity

FACTS:
This is a petition for review of the decision made by Court of Appeals in ruling that the Republic
of Indonesia gave its consent to be sued and voluntarily submitted itself to the laws and jurisdiction of
Philippine courts and that petitioners Ambassador Soeratmin and Minister Counsellor Kasim waived
their immunity from suit.

Petitioner, Republic of Indonesia, represented by its Counsellor, Siti Partinah, entered into a
Maintenance Agreement with respondent James Vinzon, sole proprietor of Vinzon Trade and Services.
The equipment covered by the Maintenance Agreement are air conditioning units and was to take effect
in a period of four years.

When Indonesian Minister Counsellor Kasim assumed the position of Chief of Administration,
he allegedly found respondent’s work and services unsatisfactory and not in compliance with the
standards set in the Maintenance Agreement. Hence, the Indonesian Embassy terminated the
agreement.

The respondent claims that the aforesaid termination was arbitrary and unlawful. Hence, he filed
a complaint against the petitioners which opposed by invoking immunity from suit.

ISSUES:
(1) Whether or not the Republic of Indonesia can invoke the doctrine of sovereign immunity from suit.
(2) Whether or not petitioners Ambassador Soeratmin and Minister Counsellor Kasim may be sued
herein in their private capacities.

RULINGS:
The rule that a State may not be sued without its consent is a necessary consequence of the
principles of independence and equality of States. The practical justification for the doctrine of sovereign
immunity is that there can be no legal right against the authority that makes the law on which the right
depends. In the case of foreign States, the rule is derived from the principle of the sovereign equality
of States, as expressed in the maxim par in parem non habet imperium. All states are sovereign equals
and cannot assert jurisdiction over one another.] A contrary attitude would “unduly vex the peace of
nations”.

The rules of International Law, however, are not unbending or immune to change. The increasing
need of sovereign States to enter into purely commercial activities remotely connected with the
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
250
discharge of their governmental functions brought about a new concept of sovereign immunity. This
concept, the restrictive theory, holds that the immunity of the sovereign is recognized only with regard
to public acts or acts jure imperii (public acts of the government of a state), but not with regard to
private acts or acts jure gestionis (the commercial activities of a state.)

(1) Yes. The Supreme Court ruled that the republic of Indonesia cannot be deemed to have waived its
immunity to suit. The mere entering into a contract by a foreign state with a private party cannot be
construed as the ultimate test of whether or not it is an act juri imperii or juri gestionis. Such act is only
the start of the inquiry. There is no dispute that the establishment of a diplomatic mission is an act juri
imperii. The state may enter into contracts with private entities to maintain the premises, furnishings
and equipment of the embassy. The Republic of Indonesia is acting in pursuit of a sovereign activity
when it entered into a contract with the respondent. The maintenance agreement was entered into by
the Republic of Indonesia in the discharge of its governmental functions. It cannot be deemed to have
waived its immunity from suit.
(2) No. Article 31 of the Vienna Convention on Diplomatic Relations provides that a diplomatic agent
shall enjoy immunity from the criminal jurisidiction of the receiving State. He shall also enjoy immunity
from its civil and administrative jurisdiction, except in the case of:
1. a real action relating to private immovable property situated in the territory of the receiving State,
unless he holds it on behalf of the sending State for the purposes of the mission;
2. an action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;
3. an action relating to any professional or commercial activity exercised by the diplomatic agent in
the receiving State outside his official functions.

The Solicitor General believes that said act may fall under subparagraph (c) thereof, but said
provision clearly applies only to a situation where the diplomatic agent engages in any professional or
commercial activity outside official functions, which is not the case herein.

Submitted by: Thriza Czarina Q. Garcia

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
251
27. DEUTSCHE GESELLSCHAFT FÜR TECHNISCHE ZUSAMMENARBEIT, also known as
GERMAN AGENCY FOR TECHNICAL COOPERATION, (GTZ) HANS PETER PAULENZ and
ANNE NICOLAY
vs. HON. COURT OF APPEALS; g.r. no. 152318, 16 april 2009

FACTS:
On 10 December 1999, the Philippine government, through then Foreign Affairs Secretary Domingo
Siazon, and the German government, agreed to an Arrangement in furtherance of the 1971 Agreement
concerning Technical Co-operation (Agreement) in Bonn, capital of what was then West Germany.
The governments of the Federal Republic of Germany and the Republic of the Philippines ratified an
Agreement called Social Health Insurance—Networking and Empowerment (SHINE), which was
designed to "enable Philippine families–especially poor ones–to maintain their health and secure health
care of sustainable quality." Private respondents were engaged as contract employees hired by GTZ
to work for SHINE.

Anne Nicolay, a Belgian national, assumed the post of SHINE Project Manager. Disagreements
eventually arose between Nicolay and private respondents in matters such as proposed salary
adjustments, and the course Nicolay was taking in the implementation of SHINE different from her
predecessors.

The dispute culminated in a signed by the private respondents, addressed to Nicolay, and copies
furnished officials of the DOH, Philheath, and the director of the Manila office of GTZ. The letter raised
several issues, which private respondents claim had been brought up several times in the past, but
have not been given appropriate response.

In response, Nicolay wrote each of the private respondents a letter, all similarly worded except for their
respective addressees. She informed private respondents that they could no longer find any reason to
stay with the project unless ALL of these issues be addressed immediately and appropriately: “Under
the foregoing premises and circumstances, it is now imperative that I am to accept your resignation,
which I expect to receive as soon as possible.”

Negotiations ensued between private respondents and Nicolay, but for naught. Each of the private
respondents received a letter from Nicolay, informing them of the pre-termination of their contracts of
employment on the grounds of "serious and gross insubordination, among others, resulting to loss of
confidence and trust."

On 21 August 2000, the private respondents filed a complaint for illegal dismissal with the NLRC.
Named as respondents therein where GTZ, the Director of its Manila office Hans Peter Paulenz, its
Assistant Project Manager Christian Jahn, and Nicolay.

On 25 October 2005, GTZ, through counsel, filed a Motion to Dismiss, on the ground that the Labor
Arbiter had no jurisdiction over the case, as its acts were undertaken in the discharge of the
governmental functions and sovereign acts of the Government of the Federal Republic of Germany.
This was opposed by private respondents with the arguments that GTZ had failed to secure a
certification that it was immune from suit from the Department of Foreign Affairs, and that it was GTZ
and not the German government which had implemented the SHINE Project and entered into the
contracts of employment.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K
252
On 27 November 2000, the Labor Arbiter issued an Order denying the Motion to Dismiss. The Order
cited, among others, that GTZ was a private corporation which entered into an employment contract;
and that GTZ had failed to secure from the DFA a certification as to its diplomatic status.

ISSUE: Whether or not GTZ enjoys immunity from suit.

HELD: NO. The principle of state immunity from suit, whether a local state or a foreign state, is reflected
in Section 9, Article XVI of the Constitution, which states that "the State may not be sued without its
consent."

Certainly, the mere entering into a contract 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 (imperial
authority), especially when it is not undertaken for gain or profit.

If the agency is incorporated, the test of its suability is found in its charter. The simple rule is that
it is suable if its charter says so, and this is true regardless of the functions it is performing. Municipal
corporations, for example, like provinces and cities, are agencies of the State when they are engaged
in governmental functions and therefore should enjoy the sovereign immunity from suit. Nevertheless,
they are subject to suit even in the performance of such functions because their charter provides that
they can sue and be sued.

GTZ itself provides a more helpful clue, inadvertently, through its own official Internet website.
This self-description of GTZ in its own official website gives further cause for pause in adopting
petitioners’ argument that GTZ is entitled to immunity from suit because it is "an implementing agency."
The above-quoted statement does not dispute the characterization of GTZ as an "implementing agency
of the Federal Republic of Germany," yet it bolsters the notion that as a company organized under
private law, it has a legal personality independent of that of the Federal Republic of Germany.

This decision should not be seen as deviation from the more common methodology employed
in ascertaining whether a party enjoys State immunity from suit, one which focuses on the particular
functions exercised by the party and determines whether these are proprietary or sovereign in nature.
The nature of the acts performed by the entity invoking immunity remains the most important barometer
for testing whether the privilege of State immunity from suit should apply. At the same time, our
Constitution stipulates that a State immunity from suit is conditional on its withholding of consent; hence,
the laws and circumstances pertaining to the creation and legal personality of an instrumentality or
agency invoking immunity remain relevant. Consent to be sued, as exhibited in this decision, is often
conferred by the very same statute or general law creating the instrumentality or agency.

The Court thus holds and so rules that GTZ consistently has been unable to establish with
satisfaction that it enjoys the immunity from suit generally enjoyed by its parent country, the
Federal Republic of Germany.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017


Atty. Ryan Mercader 2K