The Paquete Habana Case

Ancient practice that fishing vessels pursuing their vocation are exempt from
capture as a prize of war. Here, the US captured two Spanish fishing vessels
as a prize of war.
The argument of the fishermen whose vessels was seized by the U.S officials
was that international law exempted coastal fishermen from capture as prizes
of war.
Facts
(1) District court decree appeals to condemned two fishing vessels and their
cargoes as prizes of war, was brought by the owners of two separate fishing
vessels.
(2) Each of the vessel running in and out of Havana and sailing under the
Spanish flag was a fishing smack which regularly engaged in fishing on the
coast of Cuba.
Inside the vessels were fresh fish which the crew had caught.

(3) The owners of the vessels were not aware of the existence of a war until
they were stopped by U.S. squadron.
(4) No incriminating material like arms were found on the fishermen and they
did not make any attempt to run the blockade after learning of its existence
not did they resist their arrest.
(3) 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.

the War of Independence and has been recognized explicitly by the French
and British governments.
*It is an established rule of international law that coastal fishing vessels with
their equipment and supplies, cargoes and crews, unarmed and honestly
pursuing their peaceful calling of catching and bringing in fish are exempt
from capture as prizes of war.
*The outcome of the case turned on the enforcement (or non-enforcement)
of customary law prohibiting the capture of fishing vessels.
*The above practice had become customary international law.
*Thus the court demonstrated that customary international law can provide
the controlling rule of a decision in some cases in US courts
International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction, as often as
questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty, and no controlling
executive or legislative act or judicial decision, resort must be had to the
customs and usages of civilized nations; and, as evidence of these, to the
works of jurists and commentators, who by years of labor, research and
experience, have made themselves peculiarly well acquainted with the
subjects of which they treat.
*Customary international law is subordinate to self-executing treaties and
acts of congress. Only binding in the absence of a treaty, an act of congress
or the executive, etc.
*Customary international law is on the same level as self-executing treaties
and congressional acts, and therefore the later-in-time rule applies.

Issue. WON coastal fishing vessels with their cargoes and crews excluded
from prizes of war?
HELD: Yes.
*Coastal fishing vessels with their cargoes and crews are excluded from
prizes of war.
*The doctrine that exempts coastal fishermen with their vessels and crews
from capture as prizes of war has been known by the U.S. from the time of
NORTH SEA CONTINENTAL SHELF CASES

Judgment of 20 February 1969

FACTS: This is a dispute between the Federal Republic of Germany and the
Netherlands on one hand and another case between the Federal Republic of
Germany and Denmark on the other hand regarding the delimitation of the
North Sea Continental Shelf as between the three parties. The Parties asked
the Court to state the principles and rules of international law applicable, and
undertook thereafter to carry out the delimitations on that basis.
Both Denmark and Netherlands urged the International Court of
Justice to rule on the basis of the equidistant principle, that is, an equidistant
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. However, Germany's North Sea coast is
concave, while the Netherlands' and Denmark's coasts are convex. If the
delimitation had been determined by the equidistance rule ("drawing a line
each point of which is equally distant from each shore"), Germany would
have received a smaller portion of the resource-rich shelf relative to the
two other states.
It is the contention of Denmark and Netherlands that the whole
matter was governed by a mandatory rule of law which, reflecting the
language of Article 6 of the Geneva Convention on the Continental
Shelf was designated by them as the "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.
Germany argued that the length of the coastlines be used to
determine the delimitation, taking into account its special circumstance of
having a concave coastline. Germany wanted the ICJ to apportion the
Continental Shelf to the proportion of the size of the state's adjacent land and
not by the rule of equidistance.
The ICJ however, turned down the contention of Germany since its
task was to delimit, not to apportion the areas concerned. The process of
delimitation involved establishing the boundaries of an area already, in
principle, appertaining to the coastal State and not the determination de
novo of such an area. The doctrine of the just and equitable share was wholly
at variance with the most fundamental of all the rules of law relating to the
continental shelf.

The only contention left is that of Denmark and Netherlands.

ISSUE: Whether or not 1958 Geneva Convention on the Continental Shelf

containing the default application of equidistant principle was binding for all
the Parties in the case
HELD: NEGATIVE.
First, the formal provisions of the Convention was in force for any
individual State that had signed it within the time-limit provided, only if that
State had also subsequently ratified it. Denmark and the Netherlands had
both signed and ratified the Convention and were parties to it, but the Federal
Republic, although one of the signatories of the Convention, had never
ratified it, and was consequently not a party. It was admitted on behalf of
Denmark and the Netherlands that in the circumstances the Convention could
not, as such, be binding on the Federal Republic.
Second,(the relative one to the subject), on the contention that
despite not being ratified, the Convention still binds Germany because it is a
customary international law, the Court negates the existence of an element
of customary international law which is state practice.
While a very widespread and representative participation in a
convention might show that a conventional rule had become a general rule of
international law, in the present case the number of ratifications and
accessions so far was hardly sufficient. As regards the time element, although
the passage of only a short period of time was not necessarily a bar to
the formation of a new rule of customary international law on the basis of
what was originally a purely conventional rule, it was indispensable that State
practice during that period, including that of States whose interests were
specially affected, should have been both extensive and virtually uniform
in the sense of the provision invoked and should have occurred in such a way
as to show a general recognition that a rule of law was involved. Some 15
cases had been cited in which the States concerned had agreed to draw or
had drawn the boundaries concerned according to the principle of
equidistance, but there was no evidence that they had so acted because they
had felt legally compelled to draw them in that way by reason of a rule of
customary law. The cases cited were inconclusive and insufficient evidence of
a settled practice.

The Court consequently concluded that the Geneva Convention was

not in its origins or inception declaratory of a mandatory rule of customary
international law enjoining the use of the equidistance principle, its

subsequent effect had not been constitutive of such a rule, and State practice
up to date had equally been insufficient for the purpose.

DECISION: Neither of the contentions were taken.

The basic principles in the matter of delimitation, deriving from the
Truman Proclamation, were that it must be the object of agreement between
the States concerned and that such agreement must be arrived at in
accordance with equitable principles. The Parties were under an obligation to
enter into negotiations with a view to arriving at an agreement and not
merely to go through a formal process of negotiation as a sort of prior
condition for the automatic application of a certain method of delimitation in
the absence of agreement; they were so to conduct themselves that the
negotiations were meaningful, which would not be the case when one of them
insisted upon its own position without contemplating any modification of it.

inviolability

Asylum Case: Columbia v Peru 1950 ICJ Rep. 266

ASYLUM - the protection granted by a nation to someone who has left their
native country as a political refugee.
Facts: Victor Raul Haya de la Torre was a Peruvian national. In Oct 3, 1948
one military rebellion broke out in Peru which is organized and directed by the
American Peoples Revolutionary Alliance led by Haya de la Torre. The
rebellion was unsuccessful. The Peruvian Government issued a warrant for his
arrest on criminal charges related to this political uprising. . Torre fled to the
Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed
that Torre was granted diplomatic asylum in accordance with Article 2(2) of
the Havana Convention on Asylum of 1928 and requested safe passage for
Torre to leave Peru. 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. Peru refused to accept the unilateral
qualification and refused to grant safe passage. Columbia then brought this
suit
against
Peru
in
the
International
Court
of
Justice.

1) The Columbian had pleaded for the court to declare that Columbia had
properly
granted
asylum
based
on
2
submissions:-

a. They are competent to qualify the offence for the purpose of the said
asylum.
b. That Peru is bound to give the guarantees necessary for the departure of
the Haya de la Torre, from the country, with due regard to the inviolability of
his
person.
2) Counter-claim by Peru is that for the court to declare that the grant of
asylum made by the Columbian Ambassador to Haya de la Torre was made in
violation
of
the
Convention
on
Asylum.
Issue:
qualify

1. W/N Columbia is competent, as the country granting asylum, to

the
offence
for
the
purpose
of
said
asylum?
2. Was Peru bound to give the guarantees necessary for the
departure of the refugees from the country, with due regard to the

of

his

person?

Ruling: 1) Negative. Columbia was not competent to qualify the nature of the
offence by a unilateral and definitive decision binding on Peru. The court
reject the Columbian argument based on Bolivarian Agreement on the reason
that the principle of International Law did not recognize any rule of unilateral
and definitive qualification by the state granting diplomatic asylum.
On the other hand, the Bolivarian Agreement laid down rules on extradition
and it was not possible to deduce from them conclusions concerning
diplomatic
asylum
as
it
was
different
in
the
meaning.
The court also rejected the Havana Convention invoke by the Columbian as
the convention did not recognize the right of unilateral qualification.
And the third convention, Convention of Montevideo, had not been ratified by
Peru
and
could
not
be
invoked
against
it.
As for the American international law, Columbia had failed to prove that it had
constant and uniform practice of unilateral qualification as a right of the State
of refuge and an obligation upon the territorial state. The fact submitted to
the court disclosed too much contradiction and fluctuation, shows that therein
a
usage
peculiar
to
Latin
America
and
accepted
as
law
2) Negative. Columbia was not entitled to claim that the Peru was bound to
gives guarantees necessary for the departure of Haya de la Torre, with due
regard
to
the
inviolability
of
his
person.
The court also rejected the Columbian claim based on Havana Convention
that the Peru was bound to gives guarantees necessary for the departure of
Haya de la Torre, on the reason that the convention is only applicable if the
territorial State demanded the departure of the refugee from its territory. It
was only after such demand that the diplomatic Agent who granted asylum
could
require
safe-conduct.
In this case the danger that only faced by Haya de la Torre is legal preceding
that will be imposed on him, not a deprivation of his right.
The Havana Convention according to the court was not intended to protect a
citizen who had plotted against the institutions of his country from regular
legal proceedings. Asylum could only intervene against the action of justice in
cases where arbitrary action was substituted for the rule of law.

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
Nicaragua va US

and that they were paid for and directly controlled by United States personal.
Nicaragua also alleged that some attacks were carried out by United

Facts of the Case:

States military with the aim to overthrow the Government of Nicaragua.

In July 1979 the Government of President Somoza collapsed following an

armed

opposition

led

Liberacibn Nacional (FSLN) .

by

the Frente Sandinista

de

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.

(1) Fuerza Democratica Nicaragense (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).
US

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 ICJs 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-defence 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

The armed opposition to the new Government was conducted mainly by

Initial

Attacks against Nicaragua included the mining of Nicaraguan ports and

support

to

these

groups

fighting

against

the

Nicaraguan

Nicaraguas alleged acts aggression against those countries (paras. 126,

128).
Questions before the Court:

Did

the

United

States breach

its

customary

international

law

Government (called contras) was covert. Later, the United States officially

obligation not to intervene in the affairs of another State when it

acknowledged its support (for example: In 1983 budgetary legislation

trained,

enacted by the United States Congress made specific provision for funds to be

armed,

equipped

and

financed

the

contra

forces

or

encouraged, supported and aided the military and paramilitary

1. The court held that the United States breached its customary

activities against Nicaragua?

international law obligation not to use force against another State:

(1) when it directly attacked Nicaragua in 1983 1984; and (2) when

Did

the

United

States breach

its

customary

international

law

obligation not to use force against another State when it directly

its activities with the contra forces resulted in the threat or use of
force (see paras 187 -201).

attacked Nicaragua in 1983 1984 and when its activities in bullet

point 1 above resulted in the use of force?

The Court held that:

If so, can the military and paramilitary activities that the United

States undertook in and against Nicaragua be justified as collective

The prohibition on the use of force is found in Article 2(4) of the UN

Charter and in customary international law.

self-defence?

Did

the

United

States breach

its

customary

international

In a controversial finding the court sub-classified the use of force as:

law

(1) the most grave forms of the use of force (i.e. those that

obligation not to violate the sovereignty of another State when it

constitute an armed attack) and (2) the less grave form (i.e.

directed or authorized its aircrafts to fly over Nicaraguan territory and

organizing, instigating, assisting or participating in acts of civil strife

by acts referred to in bullet point 2 above?

and terrorist acts in another State when the acts referred to involve
a threat or use of force not amounting to an armed attack).

Did

the

United

States breach

its

customary

international

law

obligations not to violate the sovereignty of another State, not to

The United States violated the customary international law prohibition

intervene in its affairs, not to use force against another State and not

on the use of force when it laid mines in Nicaraguan ports. It violated

to interrupt peaceful maritime commerce when it laid mines in the

this prohibition when it attacked Nicaraguan ports, oil installations

internal waters and the territorial sea of Nicaragua?

and a naval base (see below). The United States could justify its
action on collective self-defence, if certain criteria were met this

ICJ decision: The United States violated customary international law in

aspect is discussed below.

relation to bullet points 1, 2, 4 and 5 above. On bullet point 3, the Court

found that the United States could not rely on collective self-defence to justify
its use of force against Nicaragua.

The United States violated the customary international law prohibition

on the use of force when it assisted the contras by organizing or
encouraging the organization of irregular forces and armed bands

Relevant Findings of the Court:

for incursion into the territory of another state and participated in

acts of civil strifein another State when these acts involved the

NB: The second point somewhat resembles Article 3 (g) of the UNGA

threat or use of force.

Resolution 3314 (XXIX) on the Definition of Aggression .

The supply of funds to the contras did not violate the prohibition on

Mere frontier incidents are not considered as an armed attack

the use of force. Nicaragua argued that the timing of the offensives

unless because of its scale and effects it would have been classified as

against it was determined by the United States: i.e. an offensive

an armed attack if it was carried out by regular forces.

could not be launched until the requisite funds were available. The
Court held that it does not follow that each provision of funds by

support did not constitute an armed attack it can be regarded as a

the United States was made to set in motion a particular offensive,

threat or use of force, or an intervention in the internal or external

and that that offensive was planned by the United States. The Court

affairs of other States (see paras 195, 230).

held further that while the arming and training of the contras
involved the threat or use of force against Nicaragua, the supply of
funds, in it self, only amounted to an

act of intervention in the

attack (para 211).

below.

A controversial but interesting aspect of the Courts judgement was

its definition of an armed attack. The Court held that an armed attack
included:

Under Article 51 of the UN Charter and under CIL self-defence is

only available against a use of force that amounts to an armed

internal affairs of Nicaragua (para 227) this aspect is discussed

What is an armed attack?

Assistance to rebels in the form of provision of weapons or logistical

NB: In in the Case Concerning Oil Platforms and the advisory opinion on the
Legal Consequences of of the Construction of a Wall in the Occupied
Palestinian Territory (hereinafter called the Palestine wall case) the ICJ
upheld the definition of armed attack proposed in the Nicaragua case. In
the Palestinian wall case, the attacks from which Israel was claiming self
defence originated from non-State actors. However, the Court held that

(1) action by regular armed forces across an international border; and

Article 51s inherent right of self defence was available to one State only
against

(2) the sending by or on behalf of a State of armed bands, groups, irregulars

or mercenaries, which carry out acts of armed force against another State of
such gravity as to amount to (inter alia) an actual armed attack conducted by
regular forces, or its (the States) substantial involvement therein

another

State

(para

139).

Judges

Higgins,

Buergenthal

and

Kooijmans opposed this narrow view. Articles on State Responsibility,

prepared by the International Law Commission, provided significant guidance
as to when acts of non-State actors may be attributed to States. These
articles, together with recent State practice relating attacks on terrorists
operating from other countries (see legal opinions surrounding the United

States attack on Afghanistan), may have widened the scope of an armed

(2) This State must declare itself as a victim of an armed attack; [NB: the

attack, and consequently, the right of self defence, envisaged by the ICJ.

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

2. The Court held that the United States could not justify its military

collective self-defence based its (the third States) own assessment]; and

and paramilitary activities on the basis of collective self-defence.

(3) In the case of collective self-defence the victim State must request for

Customary international law allows for exceptions to the prohibition

on the use of force including the right to individual or collective selfdefence (for a difference between the two forms of self defence,

assistance (there is no rule permitting the exercise of collective self-defence

in the absence of a request by the State which regards itself as the victim of
an armed attack).

click here). The United States, at an earlier stage of the proceedings,

had asserted that the Charter itself acknowledges the existence of

(4) The State does not, under customary international law, have the same

this customary international law right when it talks of the inherent

obligation as under Article 51 of the UN Charter to report to the Security

right of a State under Article 51 of the Charter (para.193).

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

When a State claims that it used force in collective self-defence, the

convinced that it was acting in self-defence (see below).

Court would look into two aspects:

At this point, the Court may consider whether in customary international law
(1) whether the circumstances required for the exercise of self-defence
existed and
(2) whether the steps taken by the State, which was acting in self-defence,
corresponds to the requirements of international law (i.e. did it comply with
the principles of necessity and proportionality).

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-defence 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

Several criteria must be met for a State to exercise the right of

exercise of this right of self-defence must be immediately reported to the

individual or collective self-defence:

Security Council. As the Court has observed above (paragraphs 178 and 188),
a principle enshrined in a treaty, if reflected in customary international law,

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

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

The criteria with regard to necessity and proportionality, that is

law it is not a condition of the lawfulness of the use of force in self-defence

necessary when using force in self-defence was also not fulfilled

that a procedure so closely dependent on the content of a treaty commitment

(para 237).

and of the institutions established by it, should have been followed. On the
other hand, if self-defence is advanced as a justification 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

3. The Court held that the United States breached its CIL obligation
not to intervene in the affairs of another State when it trained,
armed, equipped and financed the contra forces or encouraged,
supported and aided the military and paramilitary activities against
Nicaragua.

that it was acting in self-defence (See paras 200, 232 -236).

to conduct its affairs without outside interference i.e it forbids

States or groups of States to intervene directly or indirectly in internal

The Court looked extensively into the conduct of Nicaragua, El

or external affairs of other States. . This is a corollary of the principle

Salvador, Costa Rica and Honduras in determining whether an armed

of sovereign equality of States.

attack was undertaken by Nicaragua against the three countries

which in turn would necessitate self-defence (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-defence at the
time when the United States was allegedly acting in collective selfdefence; 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-defence.

The principle of non- intervention means that every State has a right

A prohibited intervention must accordingly be one bearing on matters in

which each State is permitted, by the principle of State sovereignty to decide
freely. One of these is the choice of a political, economic, social and cultural
system, and the formulation of foreign policy. Intervention is wrongful when it
uses methods of coercion in regard to such choices, which must remain free
ones. The element of coercion, which defines, and indeed forms the very
essence of, prohibited intervention, is particularly obvious in the case of an
intervention which uses force, either in the direct form of military action, or in
the indirect form of support for subversive or terrorist armed activities within
another State (para 205).

Nicaragua stated that the activities of the United States were

aimed to overthrow the government of Nicaragua and to substantially

damage the economy and weaken the political system to coerce the

States (see in this respect Determining US responsibility for contra

Government of Nicaragua to accept various political demands of the

operations

United States. The Court held:

concluded that a number of military and paramilitary operations of

under

international

law

81

AMJIL

86).T he

Court

the contras were decided and planned, if not actually by United States
first, that the United States intended, by its support of the contras, to
coerce the Government of Nicaragua in respect of matters in which each
State is permitted, by the principle of State sovereignty, to decide freely (see
paragraph 205 above) ; and secondly that the intention of the contras
themselves was to overthrow the present Government of Nicaragua The

advisers, then at least in close collaboration with them, and on the

basis of the intelligence and logistic support which the United States
was able to offer, particularly the supply aircraft provided to the
contras by the United States but not all contra operations reflected
strategy and tactics wholly devised by the United States.

Court considers that in international law, if one State, with a view to the
coercion of another State, supports and assists armed bands in that State

In sum, the evidence available to the Court indicates that the various forms

whose purpose is to overthrow the government of that State, that amounts to

of assistance provided to the contras by the United States have been crucial

an intervention by the one State in the internal affairs of the other, whether

to the pursuit of their activities, but is insufficient to demonstrate their

or not the political objective of the State giving such support and assistance is

complete dependence on United States aid. On the other hand, it indicates

equally far reaching.

that in the initial years of United States assistance the contra force was so
dependent. However, whether the United States Government at any stage

The financial support, training, supply of weapons, intelligence and

logistic support given by the United States to the contras was a
breach of the principle of non-interference. no such general right of
intervention, in support of an opposition within another State, exists
in contemporary international law, even if such a request for
assistance is made by an opposition group of that State (see para 246
for more).

However, in a controversial finding, the Court held that the United

States did not devise the strategy, direct the tactics of the contras or
exercise control on them in manner so as to make their acts
committed in violation of international law imputable to the United

devised the strategy and directed the tactics of the contras depends on the
extent to which the United States made use of the potential for control
inherent in that dependence. The Court already indicated that it has
insufficient evidence to reach a finding on this point. It is a fortiori unable to
determine that the contra force may be equated for legal purposes with the
forces of the United StatesThe Court has taken the view (paragraph 110
above) that United States participation, even if preponderant or decisive, in
the financing, organizing, training, supplying and equipping of the contras,
the selection of its military or paramilitary targets, and the planning of the
whole of its operation, is still insufficient in itself, on the basis of the evidence
in the possession of the Court, for the purpose of attributing to the United
States the acts committed by the contras in the course of their military or

paramilitary operations in Nicaragua. All the forms of United States

namely El Salvador, Honduras or Costa Rica. They could not justify counter-

participation mentioned above, and even the general control by the

measures taken by a third State, the United States, and particularly could not

respondent State over a force with a high degree of dependency on it, would

justify intervention involving the use of force.

not in themselves mean, without further evidence, that the United States
directed or enforced the perpetration of the acts contrary to human rights and
humanitarian law alleged by the applicant State. Such acts could well be
committed by members of the contras without the control of the United
States. For this conduct to give rise to legal responsibility of the United
States, it would in principle have to be proved that that State had effective
control of the military or paramilitary.

Interesting,

however,

the

Court

4. The United States breached its customary international law

obligation not to violate the sovereignty of another State when it
directed or authorized its aircrafts to fly over Nicaraguan territory
and when it laid mines in the internal waters of Nicaragua and its
territorial sea.

also

held

that

providing

The ICJ examined evidence and found that in early 1984 mines were
laid in or close to ports of the territorial sea or internal waters of

Nicaragua by persons in the pay or acting ion the instructions of the

humanitarian aid to persons or forces in another country, whatever

United States and acting under its supervision with its logistical

their political affiliations or objectives, cannot be regarded as unlawful

support. The United States did not issue any warning on the location

intervention, or as in any other way contrary to international law

or existence of mines and this resulted in injuries and increases in

(para 242).

maritime insurance rates.

In the event one State intervenes in the affairs of another State, the
victim State has a right to intervene in a manner that is short of an

The court found that the United States also carried out high-altitude
reconnaissance flights over Nicaraguan territory and

armed attack (210).

certain low-

altitude flights, complained of as causing sonic booms.

While an armed attack would give rise to an entitlement to collective selfdefence, a use of force of a lesser degree of gravity cannot as the Court has
already observed (paragraph 21 1 above). produce any entitlement to take
collective countermeasures involving the use of force. The acts of which
Nicaragua is accused, even assuming them to have been established and
imputable to that State, could only have justified proportionate countermeasures on the part of the State which had been the victim of these acts,

The basic concept of State sovereignty in customary international law

is found in Article 2(1) of the UN Charter. State sovereignty extends
to a States internal waters, its territorial sea and the air space above
its territory. The United States violated customary international law
when it laid mines in the territorial sea and internal waters of
Nicaragua and when it carried out unauthorized overflag hts over

Nicaraguan airspace by aircrafts that belong to or was under the

control of the United States

that it has jurisdiction before finding on the merits. Although the Government
of Iceland has not set out the facts and law on which its objection is based, or
adduced any evidence, the Court proceeds to consider those objections which
might, in its view, be raised against its jurisdiction. In so doing, it avoids not
only all expressions of opinion on matters of substance, but also any
pronouncement which might prejudge or appear to prejudge any eventual

FISHERIES JURISDICTION CASE

decision on the merits.

To found the Court's jurisdiction, the Government of the United

FACTS:
On 14 April 1972 the Government of the United Kingdom instituted
proceedings against Iceland in respect of a dispute concerning the proposed
extension by the Icelandic Government of its exclusive fisheries jurisdiction to
a distance of 50 nautical miles from the baselines around its coasts. It was
filed before the Court composed of the following members: President Sir
Muhammad Zafrulla Khan, Vice-President Ammoun and Judges Sir Gerald
Fitzmaurice, Padilla Nervo, Forster, Gros, Bengzon, Petren, Lachs, Onyeama,
Dillard, Ignacio-Pinto, de Castro, Morozov and Jimenez de Arechaga.
By a letter of 29 May 1972 the Minister for Foreign Affairs of Iceland
informed the Court that his Government was not willing to confer jurisdiction
on it and would not appoint an Agent. By Orders of 17 and 18 August 1972
the Court indicated certain interim measures of protection at the request of
the United Kingdom and decided that the first written pleadings should be

Kingdom relies on an Exchange of Notes which took place between it and the
Government of Iceland on 11 March 1961, following an earlier dispute over
fisheries. By that Exchange of Notes the United Kingdom undertook to
recognise an exclusive Icelandic fishery zone up to a limit of 12 miles and to
withdraw its fishing vessels from that zone over a period of 3 years. The
Exchange of Notes featured a compromissory clause in the following terms:
"The Icelandic Government will continue to work for the implementation of
the Althing Resolution of May 5, 1959, regarding the extension of fisheries
jurisdiction around Iceland, but shall give to the United Kingdom Government
six months' notice of such extension, and, in case of a dispute in relation to
such extension, the matter shall, at the request of either party, be referred to
the International Court of Justice."
ISSUE:

addressed to the question of its jurisdiction to deal with the case. The

Government of the United Kingdom filed a Memorial, and the Court heard oral
argument on its behalf at a public hearing on 5 January 1973. The
Government of Iceland has filed no pleadings and was not represented at the
hearing.
It is, the Court observes, to be regretted that the Government of
Iceland has failed to appear to plead the objections to the Court's jurisdiction
which it is understood to entertain. Nevertheless the Court, in accordance
with its Statute and its settled jurisprudence, must examine the question on
its own initiative, a duty reinforced by Article 53 of the Statute, whereby,
whenever one of the parties does not appear, the Court must satisfy itself

Whether or not the court has jurisdiction on the case concerning

Fisheries jurisdiction.
Whether or not the 1961 Exchange of Notes is valid.

In its Judgment on the question of its jurisdiction in the case

HELD:

concerning Fisheries Jurisdiction (United Kingdom v. Iceland), the

Court found by 14 votes to 1 that it had jurisdiction to entertain
the Application filed by the United Kingdom on 14 April 1972 and
to deal with the merits of the dispute.
The Court observes that there is no doubt as to the
fulfilment by the Government of the United Kingdom of its part of

this agreement or as to the fact that the Government of Iceland,

provision for recourse to judicial settlement had been fully

in 1971, gave the notice provided for in the event of a further

achieved. The Court notes that the compromissory clause

extension of its fisheries jurisdiction. Nor is there any doubt that a

contains no express provision regarding duration. In fact, the

dispute has arisen, that it has been submitted to the Court by the

right of the United Kingdom to challenge before the Court any

United Kingdom and that, on the face of it, the dispute thus falls

claim by Iceland to extend its fisheries zone was subject to the

exactly within the terms of the compromissory clause. Although,

assertion of such a claim and would last so long as Iceland might

strictly speaking, the text of this clause is sufficiently clear for

seek to implement the 1959 Althing resolution.

there to be no need to investigate the preparatory work, the

In a statement to the Althing (the Parliament of Iceland)

Court reviews the history of the negotiations which led to the

on 9 November 1971, the Prime Minister of Iceland alluded to

Exchange of Notes, finding confirmation therein of the parties'

changes regarding "legal opinion on fisheries jurisdiction". His

intention to provide the United Kingdom, in exchange for its

argument appeared to be that as the compromissory clause was

recognition of the 12-mile limit and the withdrawal of its vessels,

the price that Iceland had paid at the time for the recognition by

with a genuine assurance which constituted a sine qua non for the

the United Kingdom of the 12-mile limit, the present general

whole agreement, namely the right to challenge before the Court

recognition of such a limit constituted a change of legal

the validity of any further extension of Icelandic fisheries

circumstances that relieved Iceland of its commitment. The Court

jurisdiction beyond the 12-mile limit. It is thus apparent that the

observes that, on the contrary, since Iceland has received

Court has jurisdiction.

benefits from those parts of the agreement already executed, it

behoves it to comply with its side of the bargain.

As to the Validity and duration of the 1961 Exchange of Notes .

The letter and statement just mentioned also drew

The Court next considers whether, as has been contended the

attention to "the changed circumstances resulting from the ever-

agreement embodied in the 1961 Exchange of Notes either was

increasing exploitation of the fishery resources in the seas

initially void or has since ceased to operate. In the above-

surrounding

mentioned letter of 29 May 1972 the Minister for Foreign Affairs

international

of Iceland said that the 1961 Exchange of Notes had taken place

circumstances which induced parties to accept a treaty radically

at a time when the British Royal Navy had been using force to

transforms the extent of the obligations undertaken, this may,

oppose the 12-mile fishery limit. The Court, however, notes that

under certain conditions, afford the party affected a ground for

the agreement appears to have been freely negotiated on the

invoking the termination or suspension of the treaty. It would

basis of perfect equality and freedom of decision on both sides.

appear that in the present case there is a serious difference of

Iceland".
law

that

It

is,
if

notes

the

Court,

fundamental

admitted

change

of

in
the

In the same letter the Minister for Foreign Affairs of

views between the Parties as to whether there have been any

Iceland expressed the view that "an undertaking for judicial

fundamental changes in fishing techniques in the waters around

settlement cannot be considered to be of a permanent nature"

Iceland. Such changes would, however, be relevant only for any

and the Government of Iceland had indeed, in an aide-memoire of

eventual decision on the merits. It cannot be said that the change

31 August 1971, asserted that the object and purpose of the

of circumstances alleged by Iceland has modified the scope of the

jurisdictional obligation agreed to in the 1961 Exchange of Notes.

Held:

Moreover, any question as to the jurisdiction of the Court,

deriving from an alleged lapse of the obligation through changed
circumstances, is for the Court to decide, by virtue of Article 36,
paragraph 6, of its Statute.
WIMBLEDON CASE

Facts:

The court ruled in favor of the applicants. Treaty making is an attribute of

sovereignty, Germany (and all states), although sovereign are without doubt
bound to the treaties they sign.
The court interpreted Article 380 with respect for its plain terms. According
to the majority, the article clearly obligated Germany to allow free passage to
all vessels, without distinction as to the nature of their cargo or their
destination, with an exception only for vessels belonging to nations at war
with Germany.
The court continued:

In 1923, the situation in international law (particularly as regards

international treaty making) was struggling to come to terms with the
concept of state sovereignty. The situation in this case regards the Treaty of
Versailles (1919) and German sovereignty. The British ship, the S.S.
Wimbledon (owned by a French company) attempted to carry munitions and
supplies to Poland as they fought a war with Russia. Germany refused the
boat access through the Kiel Canal. The canal is in German territory. Germany
was a neutral party in the war and it did not wish to support either side. The
application was made to the Permanent Court of International Justice (PCIJ)
to gain damages for lost time and money in the transport of the goods.
The applicants submitted the request before the PCIJ on the grounds of
wrongfulness by German authorities when they refused access to the ship.
The Neutrality Orders issued by Germany, were defined as inconsistant with
Article 380 of the Treaty of Versailles. The Kiel Canal and its approaches shall
be maintained free and open to the vessels of commerce and war of all
nations at peace with Germany on terms of entire equality. The agent for
Germany argued that Germany was sovereign over her own lands. The Article
should not compromise her sovereignty or her sovereign right to neutrality.
Boats could be refused access on many grounds, neutrality should be one.

Issue:
Whether or not a state should only be bound by a treaty only while the treaty
provides fruitful results (or until circumstances fundamentally change)

The terms of article 380 are categorical and give rise to no doubt. It
follows that the canal has ceased to be an internal and national
navigable waterway, the use of which by the vessels of states other
than the riparian state is left entirely to the discretion of that state,
and that it has become an international waterway.

From the inclusion of an exception for ships of belligerents with whom

Germany may be at war, the court inferred that the drafters of the Treaty had
"clearly contemplated the possibility of a future war in which Germany is
involved." Therefore, the court concluded that if free access to the Kiel Canal
could be modified in the event of German neutrality, "the Treaty would not
have failed to say so. It has not said so and this omission was no doubt
intentional."
"The Court declines to see in the conclusion of any treaty by which a State
undertakes to perform or refrain from performing a particular act an
abandonment of its sovereignty. No doubt any Convention creating an
obligation of this kind places a restriction upon the exercise of the sovereign
rights of the State, in the sense that it requires them to be exercised in a
certain way. But the right to enter into international engagements is an
attribute of State sovereignty.
The majority concluded the German neutrality orders could not preempt the
provisions of the Treaty of Versailles. Because Article 380 explicitly authorized
passage of the Wimbledon, allowing the ship to pass "cannot be imputed to
Germany as a failure to fulfill its duties as a neutral. If, therefore, the

`Wimbledon', making use of the permission granted it by Article 380, had

passed through the Kiel Canal, Germany's neutrality would have remained
intact and irreproachable
Anglo-French Continental Shelf Case (1979)
Rule when a custom develops after a treaty:
Logical Rule is the later custom shall prevail; being the expression of
a latter will, but such will militate against the certainty of treaties. In practice,
attempt to harmonize the treaty and the custom.
FACTS: Between 1960 and 1970, UK successfully delimited its continental
shelf in the North Sea through negotiation. During the same period, France
delimited, through negotiation also, its continental shelf.
In 1970, UK and France began negotiations to delimit the continental
shelfs areas that lay between them. The negotiation resulted in a partial
agreement on a boundary east of 30 minutes longitude east of Greenwich.
However, UK and France are not in agreement as to the boundary west of 30
minutes longitude west of Greenwich. To settle their differences, the Parties
concluded an Arbitration Agreement on 1975 by which they submitted their
dispute to an ad hoc court of arbitration.
UK and France were both signatories of the Geneva Convention on
the Continental Shelf of 1958. Problems arose regarding the effect of the
French reservations to ART 6 of the Convention as well as to the 3 geographic
areas in which the ff features could possibly influence the delimitation: (a)
Eddystone Rocks, roughly 8 nautical miles south of Plymouth; (b) Channel
Islands, a British archipelago though lying close to the French coast; (c) the
Scilly Isles, 21 nautical miles west of Cornwall.
France contends that the 1958 Geneva Convention was not the law in
force between UK and France on account of the French reservations
(equidistant boundaries determined from baselines established after 1958;
boundaries extending beyond the 200metre isobaths; areas of special
circumstances). According to France, the rules of international customary law
as stated in the North Sea Continental Shelf should apply in this case. The
boundary must be drawn in conformity with the principle of natural
prolongation and in accordance with equitable principles. France argued that
if ART6 is applicable, special circumstances in the Channel Islands and
Atlantic areas prohibited recourse to the equidistance method.
UK argues that the Geneva Convention on the Continental Shelf in its
entirety was in force between the Parties. Also, its objections to the French
reservations did not preclude the entry into force of the Convention between

the Parties. Even if the reservations were applicable, they would not make
any difference in the application of relevant principles. UK maintained that the
boundary should be determined by applying the principle of equidistance. UK
contends that France had not proved that the circumstance of the relevant
areas constituted special circumstances within the meaning of ART6.
Alternatively, if customary law should govern, UK posits that the boundary
line should be drawn in such way as to leave as much as possible to each
Party of its natural prolongation without encroachment on the natural
prolongation of the other party.
ISSUE: The applicability of the equidistance principle in the delimitation of
the shelves of the United Kingdom and France.
HELD: The reservations made by France were proper. Thus, Art 6 was
inapplicable between the parties only to the extent of the reservations. Where
reservations where operable, the principles of customary law applied. In the
circumstances of this case, the rules of customary law lead much the same as
the result of Art6.
As to the interrelationship between Art6 and equitable principles, the
Court ruled that Article 6, does not formulate the equidistance principle and
special circumstances as two separate rules. The rule there stated in each
of the two cases is a single one, a combined equidistance-special
circumstance rule.
Article 6 makes the application of the equidistance principle a matter
of treaty obligation for Parties to the Convention. But the combined character
of the equidistance principle-special circumstance rule means that the
obligation to apply equidistance principle is always one qualified by the
condition unless another boundary line is justified by special
circumstances...

Germany vs Poland (1928)

AFFIRMATIVE. The original action to be filed must be restitution which

involves restoring the subject matter under dispute to its original
state. However, in cases like this one where restoring the demolished
factory is no longer possible, the only action that may be filed is
collection for monetary damages.

AFFIRMATIVE. Despite not being a direct party that sustained loss in

the demolition of the factory, the German government has the legal
standing to file in the ICJ in behalf of the German companies who
sustained the injuries.

AFFIRMATIVE. Article 23 of the Geneva Convention declares that the

State which failed to apply its provisions shall be liable for monetary
damages. And under the agreement, it is expressly provided that the
infrastructures in Upper Silesia, including the factory, shall not
automatically be under Polish ownership unless proper ceding of
rights and interest is done. And since no proper ceding of interest
transpired between the three companies and the Polish government
before the demolition was carried out, the three companies sustained
injuries which should be monetarily compensated by Polish
government.

THE CHORZOW FACTORY CASE

FACTS:
1

March 5, 1915 The German Government (called Reich) entered into

a partnership contract with a private German company Bayerische
(pronounced as Ba-yeh-sha) for the construction of a nitrate factory
at Chorzow in Upper Silesia, which at the time of agreement was a
part of the German territory.

December 24, 1919 Reichs majority interest in the factory was

ceded to Oberschlesische (pronounced as O-ber-schley-si-sha) (end
result: MGT of Factory Bayerische; Ownership Reich; Majority
Dividend Oberschlesische)

Sameday, Dec. 24, 1919, - Oberschlesische transferred some of its

interest to another company Treuhand (pronounced as Troy-hand)

The factory continued to function until May 15, 1922 when Germany
signed a Convention in Geneve (called Geneva Convention) effectively
transferring Chorzow, Upper Silesia to the Polish jurisdiction.

Immediately taking control over Upper Silesia after the signing of

Geneva Convention, the Polish government demolished the factory
despite demands from the three companies to have the factory
spared.

The Reich filed this case in the ICJ for collection of monetary damages
from Polish government for the injury that the three German
companies sustained due to the demotion of the factory.

ISSUES:

1
2
3

HELD:

Is the collection for monetary damages the right case to be filed?

If so, has the German government locus standii to file the case?
Is the Polish government liable for monetary damages?

Case decided in favor of Germany.

Barcelona Traction, Light and Power Company Ltd, (Belgium v. Spain)

Citation. I.C.J.

1970

I.C.J.

3.

Brief Fact Summary. Belgium (P) claimed Spain (D) should be held
accountable for the injury to a Canadian corporation operating in Spain.

Synopsis of Rule of Law. A state assumes an obligation concerning the

treatment of foreign investments based on general international law, once the
state admits foreign investments or foreign nationals into its territory.

Facts. On behalf of Belgian nationals (P) who had invested in a Canadian

corporation, Belgium (P) sued Spain (D) on the premise that Spain (D) was
responsible for acts in violation of international law that had caused injury to
the Canadian corporation and its Belgian shareholders (P).

Issue. Does a state assumes an obligation concerning the treatment of

foreign investments based on general international law, once the state admits
foreign investments or foreign nationals into its territory?

Held. Yes. A state assumes an obligation concerning the treatment of foreign

investments based on general international law, once the state admits foreign
investments or foreign nationals into its territory. It is highly imperative to
draw a distinction between those obligations of a state toward the
international community as a whole and those arising from the field of
diplomatic protection. It is only the party to whom an international obligation
is due can bring a claim if a breach of an obligation that is the subject of
diplomatic protection occurs.

Discussion. The basic right of all human persons was mentioned by the
Court to be protected against slavery and racial discrimination as deriving
from basic general international law. Such rights may derive from

international instruments of a universal or quasi-universal character. Such

obligations are obligations erga omnes, that is, all states have a legal interest
in their protection.

DIVERSION OF WATER: NETHERLANDS vs. BELGIUM

INTERNATIONAL WATER LAW
FACTS:
In 1863, Belgium and the Netherlands signed a Treaty governing diversions
from the Meuse that would supply water for navigation and irrigation canals.
As economic conditions evolved, both States enlarged and expanded their
respective waterways by constructing new canals, locks, and barrages. In
1937, the Netherlands initiated this injunctive proceeding, alleging that
Belgiums expansion projects were in violation of the treaty. Belgium filed
counterclaims declaring that the Netherland's claims were ill-founded and that
the expansion projects in the Netherlands violated the treaty. The Court
concluded that the Treaty did not prevent either State from taking the actions
complained of.
ISSUE:
WON there the1863 was impaired by the construction and navigation of
irrigation canals.
RULING:
The Court finds that the Treaty does not forbid the Netherlands from altering
the depth of water in the Meuse at Maestricht without the consent of Belgium,
provided that neither the discharge of water through the feeder, nor the
volume of water which it must supply, nor the current in the ZuidWillemsvaart is thereby affected. It is subject to this condition, and not at
their arbitrary discretion, that the Netherlands are entitled, under the Treaty,
to dispose of the waters of the Meuse at Maestricht. With regard to the
alleged interference, by the criticized construction, with the navigability of
that part of the Meuse common to both States, the Court considers that
Belgium has not produced any proof of it. In reply to the second Belgian
submission, which relates to the Juliana Canal, the Court finds that the Treaty
was designed to regulate the supply of water to the canals situated on the left
bank of the Meuse only. Thus, canals situated on the right bank, such as the
Juliana Canal, do not come under the regime of water supply provided for by
the Treaty.

Brief Fact Summary. A claim to settle a dispute involving sovereignty over

certain islands, sovereign rights over certain shoals and delimitation of a
maritime boundary was filed by Qatar (P) in the International Court of Justice
against Bahrain (D). The Courts jurisdiction was however disputed by Bahrain
(D).

Synopsis of Rule of Law. An international agreement creating rights and

obligations can be constituted by the signatories to the minutes of meetings
and letters exchanged.

Facts. A dispute concerning sovereignty over certain islands and shoals,

including the delimitation of a maritime boundary were issues upon which
Qatar (P) and Bahrain (D) sought to resolve for 20 years. During this period
of time, letters were exchanged and acknowledged by both parties heads of
state. A Tripartite Committee for the purpose of approaching the
International Court of Justice.. was formed by representatives of Qatar (P),
Bahrain (D) and Saudi Arabia. Though the committee met several time, it
failed to produce an agreement on the specific terms for submitting the
dispute to the Court. Eventually, the meetings culminated in Minutes, which
reaffirmed the process and stipulated that the parties may submit the
dispute to the I.C.J. after giving the Saudi King six months to resolve the
dispute. The Courts jurisdiction was disputed by Bahrain (D) when Qatar (P)
filed a claim in the I.C.J.

Issue. Yes. An international agreement creating rights and obligations can be

constituted by the signatories to the minutes of meetings and letters
exchanged. Though Bahrain (D) argued that the Minutes were only a record
of negotiation and could not serve as a basis for the I.C.J.s jurisdiction, both
parties agreed that the letters constituted an international agreement with
binding
force.
International agreements do not take a single form under the Vienna
Convention on the Law of Treaties, and the Court has enforced this rule in the
past. In this case, the Minutes not only contain the record of the meetings
between the parties, it also contained the reaffirmation of obligations
previously agreed to and agreement to allow the King of Saudi Arabia to try
to find a solution to the dispute during a six-month period, and indicated the
possibility of the involvement of the I.C.J. The Minutes stipulated
commitments to which the parties agreed, thereby creating rights and

obligations in international law. This is the basis therefore of the existence of

international
agreement.
On the part of the Bahrains (D) Foreign Minister, he argued that no
agreement existed because he never intended to enter an agreement fails on
the grounds that he signed documents creating rights and obligations for his
country. Also, Qatars (P) delay in applying to the United Nations Secretariat
does not indicate that Qatar (P) never considered the Minutes to be an
international agreement as Bahrain (D) argued. However, the registration and
non-registration with the Secretariat does not have any effect on the validity
of the agreement.

Held. Yes. An international agreement creating rights and obligations can be

constituted by the signatories to the minutes of meetings and letters
exchanged. Though Bahrain (D) argued that the Minutes were only a record
of negotiation and could not serve as a basis for the I.C.J.s jurisdiction, both
parties agreed that the letters constituted an international agreement with
binding force.

Discussion. There is no doubt that language plays a vital role in influencing a

courts decision as to whether an agreement has been entered into and in this
particular case, the language was the main focus of the I.C.J and it was the
contents of the Minutes that persuaded the I.C.J. to reject the Bahrain foreign
ministers (D) claim that he did not intend to enter into an agreement. Where
this is compared to general U.S. contract law, where a claim by one of the
parties that no contract existed because there was no meeting of the minds
might be the ground upon which a U.S. court would consider whether a
contract did exist with more care and thought than the I.C.J. gave the foreign
minister of Bahrains (D) claims.

CASE CONCERNING MARITIME DELIMITATION IN THE AREA

BETWEEN GREENLAND ANDJAN MAYEN (DENMARK VS. NORWAY)
Facts:
The case is a dis pu te between De nmark and Norway regarding the
territorial ju ris dic tion over the part of the Atlantic Ocean between
Greenland (part of the Kingdom of Denmark) and the island of Jan Mayen
(partof the Kingdom of Norway). The distance between the coast of
Greenland and Jan Mayen is 250 nautical miles. The problem arose when
Denmark, through an Executive Order, declared the area 200 miles from the
coast of Greenland as fishery zones of Denmark. Also, Norway enacted
legislation empowering their government to establish 200-mile economic
zones around its coast. Thus, there was an overlap between the fishery zone
of Denmark (off the coast of Greenland) and the economic zone of Norway
(off the coast of Jan Mayen).
- No rway argues th at bo th parties alre ady came up w ith an
agreeme nt over th e overlapping zone s on De c. 8, 1965. The said
agreement limited the claims of both countries up to a median line which was
at the center of Greenland and Jan Mayen. Norway also bases its claim on the
1958 Geneva Convention on the Continental Shelf, which also solves
the problem of overlapping claims by instituting a median line which is
equidistant from the coasts of either state. Norway also points out that by the
conduct of Denmark, it can be inferred that the latter accedes to the idea of a
median line. Norway pointed to a Royal Decree, a Danish Act and diplomatic
notes and letters as proofs of such.
Issue:
Whethe r o r no t the 1958 Gene va Co nvention on the Continental
She lf s hou ld be fo llowe d in dividin g th e are a betwee n G ree nland
and J an Mayen
Held:
-The Court held th at Art. 6 of the 1958 Ge neva Convention on the
Co ntine ntal She lf sho uld be followe d. The said article states that in
cases where two or more states have disputes of the same sort as the one in
this case, there should be a median line formed equidistant from the coasts of
the states involved. This medial line, though, can be adjusted as stated in the
Article and affirmed by several decisions of the International Court. The
adjustment would be based on special circumstances, at the discretion of the
Court.
-In th is c ase , the Cou rt foun d th at th e res pec tive co as tal le ngths
of G reen lan d an d J an M ayen c an be considered as a special
circumstance which calls for the adjustment of the median line. This is
considered
a
special
circumstance
because
the
difference
is
substantial. Greenland possesses a much longer coastline, thus it should

be afforded a wider claim over the disputed area based on the principle
of proportionality.

NUCLEAR TESTS CASES: AUSTRALIA v

FRANCE
JUDGMENT OF 20 DECEMBER 1974
INTERNATIONAL COURT OF JUSTICE

FRANCE, NEW ZEALAND v

Facts:
France was a signatory to the Nuclear Test Ban Treaty and thus
continued to conduct tests in the South Pacific until 1973. The test conducted
led to the filing of protests by Australia and New Zealand.
By a letter of 9 May 1973, received in the Registry of the Court, the
Ambassador of Australia to the Netherlands transmitted to the Registrar an
Application instituting proceedings against France in respect of a dispute
concerning the holding of atmospheric tests of nuclear weapons by the French
Government in the Pacific Ocean.
The Application was at once communicated to the French Government
and all other States entitled to appear before the Court was notified of the
Application. The French Government stated that, it considered that the Court
was manifestly not competent in the case, and that it could not accept the
Court's jurisdiction.
The Memorial of the Government of Australia was filed and was
communicated to the French Government. No Counter-Memorial was filed by
the French Government.
In the course of the written proceedings, the following submissions
were presented in the Application:"The Government of Australia asks the
Court to adjudge and declare that, for the above-mentioned reasons or any of
them or for any other reason that the Court deems to be relevant, the
carrying out of further atmospheric nuclear weapon tests in the South Pacific
Ocean is not consistent with applicable rules of international law. And to
Order that the French Republic shall not carry out any further such tests."
It is asserted by Australia and New Zealand that the French
atmospheric tests have caused some fall-out of this kind to be deposited on
within their territory. France has maintained in particular that the radioactive matter produced by its tests has been so infinitely small that it may be
regarded as negligible, and that such fall-out does not constitute a danger to
the health of the people.
Issue:

Whether or not a dispute still exist between New Zealand, Australia

and France that the Court can adjudicate.
Held:
The Court finds that France made public its intention to cease the
conduct of atmospheric nuclear tests following the conclusion of the 1974
series of tests. It is well recognized that declarations made by way of
unilateral acts, concerning legal or factual situations, may have the effect of
creating legal obligations. Declarations of this kind may be, and often are,
very specific. When it is the intention of the State making the declaration that
it should become bound according to its terms, that intention confers on the

declaration the character of a legal undertaking, the State being thenceforth

legally required to follow a course of conduct consistent with the declaration.
An undertaking of this kind, if given publicly, and with an intent to be bound,
even though not made within the context of international negotiations, is
binding. In these circumstances, no subsequent acceptance of the
declaration, nor even any reply or reaction from other States, is required for
the declaration to take effect, since such a requirement would be inconsistent
with the strictly unilateral nature of the juridical act by which the
pronouncement by the state was made.
As was observed above, to have legal effect, there was no need for
these statements to be addressed to a particular State, nor was acceptance
by any other State required. The objects of these statements are clear and
they were addressed to the international community as a whole, and the
Court holds that they constitute an undertaking possessing legal effect.
The Court, as a court of law, is called upon to resolve existing
disputes between States. Thus the existence of a dispute is the primary
condition for the Court to exercise its judicial function; it is not sufficient for
one party to assert that there is a dispute, since "whether there exists an
international dispute is a matter for objective determination" by the Court.
The dispute brought before it must therefore continue to exist at the
time when the Court makes its decision. It must not fail to take cognizance of
a situation in which the dispute has disappeared because the object of the
claim has been achieved by other means. If the declarations of France
concerning the effective cessation of the nuclear tests have the significance
described by the Court that is to say if they have caused the dispute to
disappear, all the necessary consequences must be drawn from this finding.
Thus the Court concludes that, the dispute having disappeared, the
claim advanced by Australia and New Zealand no longer has any object. The
Court therefore sees no reason to allow the continuance of proceedings which
it knows are bound to be fruitless. While judicial settlement may provide a
path to international harmony in circumstances of conflict, it is none the less
true that the needless continuance of litigation is an obstacle to such
harmony.

The Danube Dam Case

Held:

Facts:

Hungary's argument to the effect that, in 1989, in suspending and

subsequently abandoning the works for which it was still responsible at
Nagymaros and at Dunakiliti, it did not suspend the application of the 1977
Treaty itself or then reject that Treaty. The conduct of Hungary at that time
can only be interpreted as an expression of its unwillingness to comply with
at least some of the provisions of the Treaty and the Protocol of 6 February
1989, as specified in the Joint Contractual Plan. The effect of Hungary's
conduct was to render impossible the accomplishment of the system of works
that the Treaty expressly described as "single and indivisible".

Hungary and Czechoslovakia in 1977 concluded a treaty for the building of

dam structures in Slovakia and Hungary for the production of electric power,
flood control and improvement of navigation on the Danube.
On Hungary's initiative, the two parties first agreed, by two Protocols signed
on 10 October 1983 to slow the work down and to postpone putting into
operation the power plants, and then, by a Protocol signed on 6 February
1989 to accelerate the Project.

As a result of intense criticism which the Project had generated in Hungary,

the Hungarian Government decided on 13 May 1989 to suspend the works at
Nagymaros pending the completion of various studies which the competent
authorities were to finish before 31 July 1989. On 21 July 1989, the
Hungarian Government extended the suspension of the works at Nagymaros
until 31 October 1989, and, in addition, suspended the works at Dunakiliti
until the same date. Lastly, on 27 October 1989, Hungary decided to abandon
the works at Nagymaros and to maintain the status quo at Dunakiliti.
During this period, negotiations took place between the parties.
Czechoslovakia also started investigating alternative solutions. One of them,
an alternative solution subsequently known as "Variant C", entailed a
unilateral diversion of the Danube by Czechoslovakia on its territory some 10
kilometres upstream of Dunakiliti
In its final stage, Variant C included the construction at Cunovo of an overflow
dam and a levee linking that dam to the south bank of the bypass canal.
Provision was made for ancillary works.
Work on Variant C began in November 1991. Discussions continued between
the two parties but to no avail, and, on 19 May 1992, the Hungarian
Government transmitted to the Czechoslovak Government a Note Verbale
terminating the 1977 Treaty with effect from 25 May 1992. On 15 October
1992, Czechoslovakia began work to enable the Danube to be closed and,
starting on 23 October, proceeded to the damming of the river.
Issue:
WON the Termination of the treaty is valid

Precluding wrongfulness can only be accepted on an exceptional basis. The

following basic conditions set forth in Article 33 of the Draft Article on the
International Responsibility of States by the International Law Commission
are relevant in the present case: it must have been occasioned by an
"essential interest" of the State which is the author of the act conflicting with
one of its international obligations; that interest must have been threatened
by a "grave and imminent peril"; the act being challenged must have been
the "only means" of safeguarding that interest; that act must not have
"seriously impair[ed] an essential interest" of the State towards which the
obligation existed; and the State which is the author of that act must not
have "contributed to the occurrence of the state of necessity". Those
conditions reflect customary international law.
The Court has no difficulty in acknowledging that the concerns expressed by
Hungary for its natural environment in the region affected by the
Gabckovo-Nagymaros Project related to an "essential interest" of that
State.
It is of the view, however, that, with respect to both Nagymaros and
Gabckovo, the perils invoked by Hungary, without prejudging their possible
gravity, were not sufficiently established in 1989, nor were they "imminent";
and that Hungary had available to it at that time means of responding to
these perceived perils other than the suspension and abandonment of works
with which it had been entrusted.
The Court further notes that Hungary when it decided to conclude the 1977
Treaty, was presumably aware of the situation as then known; and that the
need to ensure the protection of the environment had not escaped the
parties.

The Court infers that, in the present case, even if it had been established that
there was, in 1989, a state of necessity linked to the performance of the 1977
Treaty, Hungary would not have been permitted to rely upon that state of
necessity in order to justify its failure to comply with its treaty obligations, as
it had helped, by act or omission to bring it about.
Court finds that Hungary was not entitled to suspend and subsequently
abandon, in 1989, the works on the Nagymaros Project and on the part of the
Gabckovo Project for which the 1977 Treaty and related instruments
attributed responsibility to it.
Notification by Hungary, on 19 May 1992, of the termination of the
1977 Treaty and related instruments
During the proceedings, Hungary presented five arguments in support of the
lawfulness, and thus the effectiveness, of its notification of termination. These
were the existence of a state of necessity; the impossibility of performance of
the Treaty; the occurrence of a fundamental change of circumstances; the
material breach of the Treaty by Czechoslovakia; and, finally, the
development of new norms of international environmental law. Slovakia
contested each of these grounds.
State of necessity
The Court observes that, even if a state of necessity is found to exist, it is not
a ground for the termination of a treaty. It may only be invoked to exonerate
from its responsibility a State which has failed to implement a treaty.

Impossibility of performance
The Court finds that it is not necessary to determine whether the term
"object" in Article 61 of the Vienna Convention of 1969 on the Law of Treaties
(which speaks of "permanent disappearance or destruction of an object
indispensable for the execution of the treaty" as a ground for terminating or
withdrawing from it).
Fundamental change of circumstances
In the Court's view, the prevalent political conditions were not so closely
linked to the object and purpose of the Treaty that they constituted an

essential basis of the consent of the parties and, in changing, radically altered
the extent of the obligations still to be performed. The same holds good for
the economic system in force at the time of the conclusion of the 1977 Treaty.
The changed circumstances advanced by Hungary are thus, in the Court's
view, not of such a nature, either individually or collectively, that their effect
would radically transform the extent of the obligations still to be performed in
order to accomplish the Project.

Material breach of the Treaty

Hungary's main argument for invoking a material breach of the Treaty was
the construction and putting into operation of Variant c. The Court pointed out
that it had already found that Czechoslovakia violated the Treaty only when it
diverted the waters of the Danube into the bypass canal in October 1992. In
constructing the works which would lead to the putting into operation of
Variant C, Czechoslovakia did not act unlawfully. In the Court's view,
therefore, the notification of termination by Hungary on 19 May 1992 was
premature. No breach of the Treaty by Czechoslovakia had yet taken place
and consequently Hungary was not entitled to invoke any such breach of the
Treaty as a ground for terminating it when it did.
Development of new norms of international environmental law
The Court notes that neither of the Parties contended that new peremptory
norms of environmental law had emerged since the conclusion of the 1977
Treaty; and the Court will consequently not be required to examine the scope
of Article 64 of the Vienna Convention on the Law of Treaties (which treats of
the voidance and termination of a treaty because of the emergence of a new
peremptory norm of general international law (jus cogens)). On the other
hand, the Court wishes to point out that newly developed norms of
environmental law are relevant for the implementation of the Treaty and that
the parties could, by agreement, incorporate them through the application of
Articles 15, 19 and 20 of the Treaty. These articles do not contain specific
obligations of performance but require the parties, in carrying out their
obligations to ensure that the quality of water in the Danube is not impaired
and that nature is protected, to take new environmental norms into
consideration when agreeing upon the means to be specified in the Joint
Contractual Plan. By inserting these evolving provisions in the Treaty, the
parties recognized the potential necessity to adapt the Project. Consequently,
the Treaty is not static, and is open to adapt to emerging norms of

international law. By means of Articles 15 and 19, new environmental norms

can be incorporated in the Joint Contractual Plan. The awareness of the
vulnerability of the environment and the recognition that environmental risks
have to be assessed on a continuous basis have become much stronger in the
years since the Treaty's conclusion. These new concerns have enhanced the
relevance of Articles 15, 19 and 20. The Court recognizes that both Parties
agree on the need to take environmental concerns seriously and to take the
required precautionary measures, but they fundamentally disagree on the
consequences this has for the joint Project. In such a case, third-party
involvement may be helpful and instrumental in finding a solution, provided
each of the Parties is flexible in its position.
Finally, the Court is of the view that although it has found that both Hungary
and Czechoslovakia failed to comply with their obligations under the 1977
Treaty, this reciprocal wrongful conduct did not bring the Treaty to an end nor
justify its termination.
In the light of the conclusions it has reached above, the Court finds that the
notification of termination by Hungary of 19 May 1992 did not have the legal
effect of terminating the 1977 Treaty and related instruments.

Dissolution of Czechoslovakia
On that date Czechoslovakia ceased to exist as a legal entity, and on 1
January 1993 the Czech Republic and the Slovak Republic came into existence

An examination of this Treaty confirms that, aside from its undoubted nature
as a joint investment, its major elements were the proposed construction and
joint operation of a large, integrated and indivisible complex of structures and
installations on specific parts of the respective territories of Hungary and
Czechoslovakia along the Danube.
It concludes that the content of the 1977 Treaty indicates that it must be
regarded as establishing a territorial rgime within the meaning of Article 12
of 1978 Vienna Convention. It created rights and obligations "attaching to"
the parts of the Danube to which it relates; thus the Treaty itself could not be
affected by a succession of States. The Court therefore concludes that the
1977 Treaty became binding upon Slovakia on 1 January 1993.

Court has found that the 1977 Treaty is still in force and consequently
governs the relationship between the Parties.

GOLDWATER V CARTER
FACTS: Senator Barry Goldwater and other members of Congress
challenged President Jimmy Carter's termination of the Mutual Defense
Treaty with Taiwan without consulting or securing the prior approval of the
Senate. Article II, section 2, clause 2 of the Constitution states that the
president has the power to make treaties, provided that two-thirds of the
Senate concurs. However, the Constitution does not address the question
of how a treaty may be abrogated.
ISSUE: Whether or not President can abrogate by himself an international
treaty
HELD: The US Supreme Court left the question unanswered, the matter is
not yet ripe for judicial review since it is one having the nature of political
question, hence, the judgment of the Court of Appeals is vacated and the
case is remanded to the District Court with directions to dismiss the
complaint.
Justice William Rehnquist, in a concurring opinion joined by Chief Justice
Warren Burger and Justices Potter Stewart and John Paul Stevens, argued
that this was a non-justiciable political question because it involved the
authority of the President in the conduct of our country's foreign relations
specifically a treaty commitment to use military force in the defense of a
foreign government if attacked (pp. 10021004). The Court was asked to
settle a dispute between coequal branches of government, each of which
has resources available to protect and assert its interests, resources not
available to private litigants outside the judicial forum (p. 1004). Justice
Lewis Powell concurred separately, arguing that the issue was not ripe
for judicial decision since Congress had not yet confronted the president
about the treaty.
If Congress had challenged the Presidents authority to terminate, then
the court would have justiciable issue to decide. Without a challenge the
issue only involves a political question. Neither the Senate nor the House
have taken any action, thereby rendering the case unripe for decision.
There is no specific language preventing the President from terminating
treaties without approval. There is no showing that Congress has rejected

the Presidents claim. It is Congress choice to challenge the President not

the Courts.
The Judicial Branch should not decide issues affecting the allocation of
power between the President and Congress until the political branches
reach a constitutional impasse. Otherwise, we would encourage small
groups or even individual Members of Congress to seek judicial resolution
of issues before the normal political process has the opportunity to resolve
the conflict.
Brazilian Loans Case: France vs Brazil
*
Municipal Law in International Law. Where the court must decide a dispute
which turns not upon international law but upon domestic law, the
court stated what it must do:
Once the court has arrived at the conclusion that it is necessary to apply the
municipal law of a particular country, there seems to be no doubt that it must
seek to apply it as it would be applied in that country.
Facts:

By a decree dated June 8th, 1903, the Government of the Republic

of the United States of Brazil established a "special regime for the carrying
out of works for the improvementof ports". This regime was subsequently
modified by a presidential decree dated February 14th,1907, to the effect
that "
the works were to be carried out under government's control and
bycontract", the Government being empowered "for the expenditure
necessary in connectionwith the carrying out of the improvements in
the ports and on the navigable rivers", "toundertake the requisite
operations for obtaining credit" and "to issue gold or paper bonds".
Further, the law of December 31st, 1907, determining the general
expenditure of the Republic for the financial year 1908, authorized the
President of the Republic, amongst other things, "toproceed with the
improvement works in the ports .... in accordance with the decree ....
ofFebruary 14th, 1907, as also with the requisite credit operations".
1) In virtue of this authority, the President appears to have called for tenders
for the carryingout of the improvement works at the port of Recife
(Pernambuco) and, by a decree of July 2nd,1908, he approved the conditions
of a contract to be concluded between the Government andthe contractors
whose tenders had been selected. The contract was actually concluded
onAugust 4th, 1908; according to its provisions' [p98] the works
contracted for were to be paidfor in bonds to bearer of the Brazilian
Public Debt issued to a maximum nominal value"equivalent to
84,528,300 francs". The issue by the Minister of Finance of a first section of
anominal value of 40,000,000 francs was authorized by a presidential decree

of December 3rd,1908. The prospectus of this section, dated December

30th, 1908, states that "the loanconstitutes a direct debt of the
Government of the United States of Brazil"; it indicates
thatsubscriptions would take place on January 30th, 1909, at Paris
and provincial Frenchexchanges. The bonds were actually signed on
July 24th, 1909, by the delegate of theBrazilian Treasury in London.
2) Under a Brazilian decree of March 27th, 1907, a new contract was
concluded, on October25th, 1909, between the
Federal Government of the United States of Brazil and the
GoyazRailway Company, according to which the Government was to pay
the Company "in bondsbearing interest at 4% per annum .... the sum which
will be determined by the final plansapproved by the Government"; as
soon'as authorized to do so by the Government, theCompany might "sell the
whole or a part of the bonds corresponding to the railways....".In virtue of the
foregoing arrangements, the Goyaz Railway Company, on February 10th,
1910,concluded at Paris with a French bank a contract for the sale, by
the bank, of 100,000,000francs worth of Brazilian funds, represented
by 200,000 bonds, which were to be made overto the bank by the
Company; The prospectus, which is dated March 2nd, 1910, states
thatsubscription would take place at Paris and provincial French exchanges on
March 17th, 1910.
3) By a contract duly approved by a Brazilian presidential decree dated March
31st, 1911, theViacao Geral da Bahia Company obtained a concession for
the construction of a system ofrailways in the State of Bahia; the works were
to be paid for in "4 % bonds of the Federal Debt",which the Company was to
sell for its own account "immediately after the conclusion of thenegotiations".
Another decree dated June 21st, 1911, authorized the Minister of
Finance toissue bonds for 60,000,000 francs, "in payment for the
works provided for in the contractconcluded with the Viacao Geral da
Bahia Company"; the bonds were to be "of the nominalvalue of 500
francs". The prospectus is dated May 12th, 1911; according to its
terms,subscription was to take place on July 12th, 1911. The place of issue is
not indicated, but it issaid that "allotment will take place on Tuesday, July
25th, 1911: at Paris .... in the provinces ....and in Brazil" (Rio de Janeiro).
The bonds were signed in London on September 21st, 1911, bythe duly
authorized representative of the Federal Government of the United States of
Brazil;
It appears from the terms of Article I of the Special Agreement that the
Parties agree on the factthat "hitherto" the payment of matured coupons and
the redemption of drawn bonds of thethree loans at issue have been effected
"in paper francs, that is to say, in the French currencywhich is compulsory
tender". And the documents and. information [p100] laid before the
Courtconfirm that this has indeed been the case, except for the period from
August 1st, 1914, to July31st, 1917, inclusive, during which the interest on
the loans was in effect paid by means of"funding bonds" (bons de
consolidation) issued, with the authorization of the BrazilianGovernment, by a

banking house of London; these funding bonds were bearer bondsredeemable

in ten years, the interest on which was payable in pounds sterling at London
andcertain continental exchanges at the exchange rate of the day on London.
This incident doesnot seem however to have any bearing on the present case.
It is also common ground that theyield of the loans has always been credited
to the borrower, or to the companies to which ithad ceded its right, in French
francs at their current value.
Finally, it is admitted by both sides that the fact that after the increasing
depreciation of theFrench franc, the service of the loan was effected
in that currency on the basis of its currentvalue, ultimately led to
protests and the taking of steps by the bondholders with a view
toinducing the French Government to intervene; according to the
Brazilian Government,however, this attitude on the part of the
bondholders dates only from 1924 and is explainedby speculative
aims, while, according to the French Government, the discontent of
thebondholders and its earliest manifestations date from an earlier
period. However that maybe, on September 1st, 1924, the French
Ambassador at Rio de Janeiro intervened, in the nameof his Government,
with the Federal Government "on behalf of the bondholders of the
threeBrazilian loans at issue, who claimed that payment of the
interest upon and the redemptionof the capital of these loans should
be effected on a gold basis"; the French Governmentseems thus to have
identified itself with this claim, with which the Government of the
UnitedStates of Brazil did not however feel called upon to comply. Diplomatic
conversations seem tohave then taken place, which, however, did not succeed
in
disposing
of
the
controversy.
=dispute
Problem: There appears to have been only a slight difference in the value of
French currency as[p120] compared with a gold basis. The significant period
is the later onethat is, between1919 and 1924, as by the latter date the
French Government had espoused the cause of theFrench bondholders and
made formal complaint. In considering the conduct of the bondholdersin this
period, it is to be remembered that this was a time of great difficulties; that
there were many bondholders; that as individuals they were powerless as
against the BrazilianGovernment, and it was necessary for them to associate
themselves together and to interestthe French Government in their case; that
the French Government had to consider the matter and determine on its
course of action. When all these circumstances are considered, there is no
adequate basis for an inference from the conduct of the bondholders that
they were of opinionthat they were not entitled to obtain payment on the
basis of a gold standard. From September1924, at least, the matter was in
the course of diplomatic negotiations between the twoGovernments until the
Special Agreement for submission to the Court was signed in 1927. The
bonds are bearer bonds which entitle the bearer to claim, simply
because he is a bearer, allthe rights accruing under the bond. The
bondholders cannot be regarded as estopped to seekpayment in gold
value.

The law applicable.Counsel for the Government of the United States of

Brazil has summarizedthe argument of his Government as follows: " .... even
were it possible to conclude that theintention of the borrower and lenders was
to set aside the French franc and adopt anotherfranc representing a fixed and
invariable monetary unit, calculated according to its weight ingold, on that
hypothesis also, as the question concerns a loan governed by Article 1895 of
theFrench Civil Code and seeing that the forced currency law enacted as a
result of circumstances,unforeseen and impossible to foresee, such a clause
could not be effective in so far asconcerned any payment to be made in
francs."
Issue: Formulated in this way, the argument raises several questions,
and in the first place the question whether it is French law which in
this case governs the contractual obligations as such.
Held: The Brazilian law governs, not the French Law.

issue of the loans took place in France only. This circumstance,

however,cannot suffice to show that the intention was to make the obligations
entered into as regardsthe substance of the debt and the validity of the
conditions relating to it, subject to French law,more especially considering
that not only did the bonds of all those loans also contain anEnglish text but
also that the interest was made payable, in the case of the 1910 and
1911loans, at Rio de Janeiro and London as well as Paris, and in the case of
the 1909 loan, besidesParis, also at Brussels, Amsterdam and Hamburg. As
concerns the 1910 and 1911 loans also, thebonds drawn for redemption are
payable at Paris, London and Rio de Janeiro. These provisionsshow that it was
not the intention to place the bonds exclusively in France. Moreover,
theprospectus which has been produced in respect of the 1911 loan states
that subscription was totake place not only at Paris and on French provincial
exchanges, but also in Brazil.

But though the Court is unable to admit that the intention was to make the
substance of thedebt and the validity of the provisions relating to it subject to
That is a question of private international law which the Court, as it has French law, this does not preventthe currency in which payment must or may
explained
in
its judgment regarding
the
Serbian loans, must decide be made in France from being governed by Frenchlaw. For, as the Court has
by reference to the actual nature of theobligations in question and to the explained in its judgment in the case of the Serbian loans, it is agenerally
circumstances attendant upon their creation, though it mayalso take into accepted principle that a State is entitled to regulate its own currency. The
account the expressed or presumed intention of the Parties.Having regard to applicationof the laws of such State involves no difficulty so long as it does
the nature of the bonds and to the circumstances concerning their issue, not affect the substance of thedebt [p123] to be paid and does not conflict
thereseems to be no doubt that it is Brazilian law and not French law which with the law governing such debt. And in thepresent case, this situation need
must be held to governthe obligations contracted, at all events as regards the only be-envisaged if, as contended by the Government of theUnited States of
substance of the debt and the validity ofthe clause defining it. The loans in Brazil, French law rendered it impossible to claim payment otherwise than
question are loans contracted by the Government of theUnited States of Brazil inbank-notes which are compulsory tender, and for the same amount of
under laws and decrees having the force of law and laying down theconditions francs as are specified inthe contract.
relating to the loans. These decrees are cited in the bonds, and accordingly
thevalidity of the obligations set out therein is indisputable in Brazilian law. Does this observation also cover the present case? The Special Agreement
The bonds are bearerbonds signed by the delegate of the Brazilian Treasury in under which thiscase has been submitted to the Court contains the following
London. It follows from the verynature of bearer bonds that the substance of in Article VI:
the debt, which in principle must be the same inrespect of all holders, cannot
be dependent on the identity of the holder or the place where hehas acquired "In estimating the weight to be attached to any municipal law of
his bond. Only the identity of the borrower is fixed; in this case it is a either country which may beapplicable to the dispute, the Permanent
sovereignState, which cannot be presumed to have made the substance of its Court of International Justice shall not be bound bythe decisions of
debt and the validity of theobligations accepted by it in respect thereof, the respective-courts."
subject to any law other than its own. [p122]
There are two possible interpretations. According to onekeeping more
It cannot be held that the intention of the borrowing State was to render strictly to the literalmeaning of the words
some law other thanits own applicable as regards the substance of its debt the Court is not to regard itself as legally bound to follow the doctrineof the
and the validity of the conditions laiddown in respect thereof, unless there courts of the country the law of which it is applying; it remains however free
were, if not an express provision to this effect, at allevents circumstances to do so if itconsiders that its task should be limited to applying the municipal
which would irrefutably show that such was its intention.
law in accordance with theconstruction placed thereon by the national courts.
According to another interpretationwhich might find support more
But in the present case there is no express provision. The only circumstance particularly in the fact that questions similar to that submittedto the Court
which has beenbrought to the knowledge of the Court and which might had already formed the subject of decision in French courtsthe Court's
possibly be cited in this connection isthat, according to the statement of the dutywould be to disregard the doctrine of the municipal courts and itself to
Government of the United States of Brazil, which has not been disputed, the determine thatinterpretation of the relevant legislation which seems, in its

opinion, to be the most reasonablein the present case. The Court, in

choosing between these two interpretations, must adoptthat one
which is in principle compatible with a proper appreciation of its
nature andfunctions. Though bound to apply municipal law when
circumstances so require, the Court,which is a tribunal of
international law, and which, in this capacity, is deemed itself to
knowwhat this law is, is not obliged also to know the municipal law of
the various countries. Allthat can be said in this respect is that the
Court may possibly be obliged to obtain knowledgeregarding the
municipal law which has to be applied. And this it must do, either by
means ofevidence furnished it by the Parties or by means of any researches
which the Court may think fit to undertake or to cause to be undertaken.
Once the Court has arrived at the conclusionthat it is necessary to
apply the municipal law of a particular country, there seems no
doubtthat it must seek to apply it as it would be applied in that
country. It would not be applyingthe municipal law of a country if it
were to apply it in a manner different from that in whichthat law
would be applied in the country in which it is in force. It follows that
the Court mustpay the utmost regard to the decisions of the
municipal courts of a country, for it is with theaid of their
jurisprudence that it will be enabled to decide what are the rules
which, in actualfact, are applied in the country the law of which is
recognized as applicable in a given case. Ifthe Court were obliged to
disregard the decisions of municipal courts, the result would bethat it
might in certain circumstances apply rules other than those actually
applied; thiswould seem to be contrary to the whole theory on which
the application of municipal law is based.
Of course, the Court will endeavour to make a just appreciation of the
jurisprudence ofmunicipal courts. If this is uncertain or divided, it will rest
with the Court to select theinterpretation which it considers most in
conformity with the law. But to compel the Court todisregard that
jurisprudence would not be in conformity with its function when
applyingmunicipal law, while the Court is authorized to depart from the
jurisprudence of the municipalcourts, it remains entirely free to decide that
there is no ground for attributing to the municipallaw a meaning other than
that attributed to it by that jurisprudence.

MEJOFF VS. DIRECTOR OF PRISONS, digested

90 Phil. 70 (1951) (Constitutional Law Right to Life and Liberty, Aliens)
FACTS: Herein petitioner, an alien illegally in this country was kept under
prolonged detention while arrangements for his departure are being made
filed a petition for habeas corpus. For two years, the Government has not
found ways and means of deporting the petitioner because no ship nor
country would take the latter. It is insinuated that the petitioner might join or
aid the disloyal elements if allowed to be at large.

ISSUE: Whether or not an alien, not enemy, against whom no charge has
been made other than that their permission to stay has expired, may be
detained indefinitely for as long as the Government is unable to deport him.
HELD: No, a foreign national, not enemy, against whom no criminal charges
have been formally made or judicial order issued, may not indefinitely be kept
in detention. He also has the right to life and liberty and all other
fundamental rights as applied to human beings. Petitioner is ordered to be
released upon the condition of being under surveillance and exact bail in a
reasonable amount with sufficient sureties. The possibility that he might join
or aid disloyal elements if turned out at large does not justify prolonged
detention.

Kuroda v. Jalandoni

I.

THE FACTS

Petitioner Shigenori Kuroda, the Commanding General of the

Japanese Imperial Forces in the Philippines during the Japanese occupation,
was charged before the Philippine Military Commission of war crimes.
He questioned the constitutionality of E.O. No. 68 that created the National
War Crimes Office and prescribed rules on the trial of accused war criminals.
He contended the Philippines is not a signatory to the Hague Convention on
Rules and Regulations covering Land Warfare and therefore he is charged of
crimes not based on law, national and international.

II.

THE ISSUES

Was E.O. No. 68 valid and constitutional?

III.

THE RULING

[The Court DENIED the

constitutionality of E.O. No. 68.]

petition

and

upheld

the

validity

and

YES, E.O. No. 68 valid and constitutional.

as contained in treaties to which our government may have been or

shall be a signatory.

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 law
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
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.

xxx

xxx

xxx

Petitioner argues that respondent Military Commission has no

jurisdiction to try petitioner for acts committed in violation of the Hague
Convention and the Geneva Convention because the Philippines is not a
signatory to the first and signed the second only in 1947. It cannot be denied
that the rules and regulation of the Hague and Geneva conventions
form, part of and are wholly based on the generally accepted
principals of international law. In facts these rules and principles were
accepted by the two belligerent nations the United State and Japan who were
signatories to the two Convention. Such rule and principles therefore
form part of the law of our nation even if the Philippines was not a
signatory to the conventions embodying them for our Constitution
has been deliberately general and extensive in its scope and is not
confined to the recognition of rule and principle of international law

G.R. No. L-49112

February 2, 1979
LEOVILLO C. AGUSTIN, petitioner, vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation
Commissioner; HON. JUAN PONCE ENRILE, in his capacity as Minister
of National Defense; HON. ALFREDO L. JUINIO, in his capacity as
Minister Of Public Works, Transportation and Communications; and
HON: BALTAZAR AQUINO, in his capacity as Minister of Public
Highways, respondents.
FERNANDO, J.:
FACTS: This case is a petition assailing the validity or the constitutionality of
a Letter of Instruction No. 229, issued by President Ferdinand E. Marcos,
requiring all vehicle owners, users or drivers to procure early warning devices
to be installed a distance away from such vehicle when it stalls or is disabled.
In compliance with such letter of instruction, the Commissioner of the Land
Transportation Office issued Administrative Order No. 1 directing the
compliance thereof.
This petition alleges that such letter of instruction and subsequent
administrative order are unlawful and unconstitutional as it violates the
provisions on due process, equal protection of the law and undue delegation
of police power.
ISSUE: Whether or not the Letter of Instruction No. 229 and the subsequent
Administrative Order issued is unconstitutional
HELD: NO. The statutes in question are deemed not unconstitutional. These
were definitely in the exercise of police power as such was established to
promote public welfare and public safety. In fact, the letter of instruction is
based on the constitutional provision of adopting to the generally accepted
principles of international law as part of the law of the land. The letter of

instruction mentions, as its premise and basis, the resolutions of the 1968
Vienna Convention on Road Signs and Signals and the discussions on traffic
safety by the United Nations - that such letter was issued in consideration of
a growing number of road accidents due to stalled or parked vehicles on the
streets and highways. The 1968 Vienna Convention on Road Signs and
Signals is impressed with such a character. It is not for this country to
repudiate a commitment to which it had pledged its word. The concept of
Pacta sunt servanda stands in the way of such an attitude, which is,
moreover, at war with the principle of international morality.
JOSE B. L. REYES, in behalf of ANTI-BASES COALITION vs. RAMON
BAGATSING
G.R. No. L-65366
Fernando, CJ.:
FACTS:
Anti-Bases Coalition (ABC), herein represented by retired Justice Jose
B. L. Reyes, sought a permit to hold a protest action and hold a peaceful
march from Luneta up to the front gate of the US Embassy. However, Manila
mayor Ramin Bagatsing disapproved the permit, claiming that he had been
receiving police intelligence reports that the protest action may be infiltrated
by lawless elements. According to the police intelligence, there are alleged
plans of subversive/criminal elements to infiltrate and/or disrupt any
assmebly or congragations where a large number is expected to attend.
However, Bagatsing suggested that a permit may be issued IF the
protest action shall be held in the Rizal Coliseum or any other enclosed area
where the safety of the participants themselves and the general public may
be ensured.
In addition, Bagatsing issued City Ordinance No. 7259 which prohibits
staging of rallies within the 500 meter radius from the US Embassy. According
to him, it was his intention to provide protection to our diplomatic relations,

thus favoring the US Embassy from such protest action which was allegedly
reported to have been infiltrated by lawless elements.
ISSUE: Whether or not the participants should be granted the permit.
HELD:
AFFIRMATIVE
Such denial of the peoples right to peacably assemble and petition
the government for redress of grievances, despite the police intelligence
report, did not pass the clear and present danger test. Mere assertion of the
report that the protest being infiltrated by subversives does not suffice. It is
enough that the police chief assure to take all necessary steps to ensure a
peaceful assembly (BUTI NGA!!!).
Furthermore, Ordinance No. 7259 cannot be applied yet because it
cannot be shown that the protesters are indeed within the 500 meter radius
of the embassy.
PETITION GRANTED!

DONALD BAER vs. HON. TITO V. TIZON

FACTS:
Respondent Edgardo Gener, as plaintiff, filed a complaint for injunction with the
Court of First Instance of Bataan against petitioner, Donald Baer, Commander of
the United States Naval Base in Olongapo. He alleged that he was engaged in the
business of logging and that the American Naval Base authorities stopped his logging
operations. He prayed for a writ of preliminary injunction restraining petitioner from
interfering with his logging operations. A restraining order was issued by respondent Judge.
Counsel for petitioner, upon instructions of the American Ambassador to the
Philippines, entered their appearance for the purpose of contesting the jurisdiction
of respondent Judge on the ground that the suit was one against a foreign sovereign without
its consent.
ISSUE:
Whether or not the doctrine of immunity from suit without consent is
applicable.
HELD: YES. The invocation of the doctrine of immunity from suit of a foreign
state without its consent is appropriate. More specifically, insofar as alien
armed forces is concerned. The solidity of the stand of petitioner is therefore
evident. What was sought by private respondent and what was granted by
respondent Judge amounted to an interference with the performance of the
duties of petitioner in the base area in accordance with the powers possessed
by him under the Philippine-American Military Bases Agreement. This point
was made clear in these words: Assuming, for purposes of argument, that the
Philippine Government, through the Bureau of Forestry, possesses the
authority to issue a Timber License to cut logs inside a military base, the
Bases Agreement subjects the exercise of rights under a timber license issued

by the Philippine Government to the exercise by the United States of its

rights, power and authority of control within the bases; and the findings of
the Mutual Defense Board, an agency of both the Philippine and United States
Governments, that continued logging operation by Mr. Gener within the
boundaries of the U.S. Naval Base would not be consistent with the security
and operation of the Base, is conclusive upon the respondent Judge. The
doctrine of state immunity is not limited to cases which would result in a
pecuniary charge against the sovereign or would require the doing of an
affirmative act by it. Prevention of a sovereign from doing an affirmative act
pertaining directly and immediately to the most important public function of
any government the defense of the state is equally as untenable as requiring
it to do an affirmative act. That such an appraisal is not opposed to the
interpretation of the relevant treaty provision by our government is made
clear in the aforesaid manifestation and memorandum as amicus curiae,
wherein it joined petitioner for the grant of the remedy prayed for.

WIGBERTO E. TAADA, ET AL vs. EDGARDO ANGARA

G.R. No. 118295 May 2, 1997
PANGANIBAN, J.:
Facts:
Petitioners Senators Taada, et al. questioned the constitutionality of the
concurrence by the Philippine Senate of the Presidents ratification of the
international agreement establishing the World Trade Organization (WTO).
They argued that the WTO Agreement violates the mandate of the 1987
Constitution to develop a self-reliant and independent national economy
effectively controlled by Filipinos . . . (to) give preference to qualified Filipinos
and to promote the preferential use of Filipino labor, domestic materials and
locally produced goods. Further, they contended that the national
treatment and parity provisions of the WTO Agreement place nationals
and products of member countries on the same footing as Filipinos and local
products, in contravention of the Filipino First policy of our Constitution,
and render meaningless the phrase effectively controlled by Filipinos.
Issue:
Whether or not the 1987 Constitution 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.
Held:

NO, the 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.
There are enough balancing provisions in the Constitution to allow the Senate
to ratify the Philippine concurrence in the WTO Agreement.
While the Constitution indeed mandates a bias in favor of Filipino goods,
services, labor and enterprises, at the same time, it recognizes the need for
business exchange with the rest of the world on the bases of equality and
reciprocity and limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair. In other words, the
Constitution did not intend to pursue an isolationist policy. It did not shut out
foreign investments, goods and services in the development of the Philippine
economy. While the Constitution does not encourage the unlimited entry of
foreign goods, services and investments into the country, it does not prohibit
them either. In fact, it allows an exchange on the basis of equality and
reciprocity, frowning only on foreign competition that is unfair.
The 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 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 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.
The Court DISMISSED the petition. It sustained the concurrence of the
Philippine Senate of the Presidents ratification of the Agreement establishing
the WTO.

KILOSBAYAN vs. MANUEL L. MORATO

G.R. No. 118910. November 16, 1995.
FACTS:
In Jan. 25, 1995, PCSO and PGMC signed an Equipment Lease Agreement
(ELA) wherein PGMC leased online lottery equipment and accessories to
PCSO. (Rental of 4.3% of the gross amount of ticket or at least P35,000 per
terminal annually). 30% of the net receipts is allotted to charity. Term of
lease is for 8 years. PCSO is to employ its own personnel and responsible for
the facilities. Upon the expiration of lease, PCSO may purchase the
equipment for P25 million. Feb. 21, 1995. A petition was filed to declare ELA
invalid because it is the same as the Contract of Lease Petitioner's
Contention: ELA was same to the Contract of Lease.. It is still violative of
PCSO's charter. It is violative of the law regarding public bidding. It violates
Sec. 2(2) of Art. 9-D of the 1987 Constitution. Standing can no longer be
questioned because it has become the law of the case Respondent's reply:
ELA is different from the Contract of Lease. There is no bidding required. The
power to determine if ELA is advantageous is vested in the Board of Directors
of PCSO. PCSO does not have funds. Petitioners seek to further their moral
crusade. Petitioners do not have a legal standing because they were not
parties to the contract
ISSUES: Whether or not the petitioners have standing?

HELD: NO. STARE DECISIS cannot apply. The previous ruling sustaining the
standing of the petitioners is a departure from the settled rulings on real
parties in interest because no constitutional issues were actually involved.

LAW OF THE CASE cannot also apply. Since the present case is not the same
1.
one litigated by theparties before in Kilosbayan vs. Guingona, Jr., the ruling
cannot be in any sense be regarded as the law of this case. The parties are
2.
the same but the cases are not. RULE ON CONCLUSIVENESS cannot still
apply. An issue actually and directly passed upon and determine in a former
suit cannot again be drawn in question in any future action between the same
3.
parties involving a different cause of action. But the rule does not apply to
4.
issues of law at least when substantially unrelated claims are involved. When
the second proceeding involves an instrument or transaction identical with,
but in a form separable from the one dealt with in the first proceeding, the
Court is free in the second proceeding to make an independent examination
of the legal matters at issue. Since ELA is a different contract, the previous
decision does not preclude determination of the petitioner's standing.
STANDING is a concept in constitutional law and here no constitutional
question is actually involved. The more appropriate issue is whether the
petitioners are REAL PARTIES in INTEREST.

Manila Prince Hotel v. GSIS, G.R. No. 122156, February 3, 1997

DECISION
(En Banc)
BELLOSILLO, J.:
I.

THE FACTS

Pursuant to the privatization program of the Philippine Government,

the GSIS sold in public auction its stake in Manila Hotel Corporation (MHC).
Only 2 bidders participated: petitioner Manila Prince Hotel Corporation, a
Filipino corporation, which offered to buy 51% of the MHC or 15,300,000
shares at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITTSheraton as its hotel operator, which bid for the same number of shares
at P44.00 per share, or P2.42 more than the bid of petitioner.
Petitioner filed a petition before the Supreme Court to compel the
GSIS to allow it to match the bid of Renong Berhad. It invoked the Filipino
First Policy enshrined in 10, paragraph 2, Article XII of the 1987
Constitution, which provides that in the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall
give preference to qualified Filipinos.
II.

THE ISSUES

Whether 10, paragraph 2, Article XII of the 1987 Constitution is a selfexecuting provision and does not need implementing legislation to carry it
into effect;
Assuming 10, paragraph 2, Article XII is self-executing, whether the
controlling shares of the Manila Hotel Corporation form part of our patrimony
as a nation;
Whether GSIS is included in the term State, hence, mandated to
implement 10, paragraph 2, Article XII of the Constitution; and
Assuming GSIS is part of the State, whether it should give preference to the
petitioner, a Filipino corporation, over Renong Berhad, a foreign corporation,
in the sale of the controlling shares of the Manila Hotel Corporation.
III.

THE RULING
[The Court, voting 11-4, DISMISSED the petition.]

1. YES, 10, paragraph 2, Article XII of the 1987

Constitution is a self-executing provision and does not need
implementing legislation to carry it into effect.
Sec. 10, second par., of Art XII is couched in such a way as not to
make it appear that it is non-self-executing but simply for purposes of
style. But, certainly, the legislature is not precluded from enacting further
laws to enforce the constitutional provision so long as the contemplated
statute squares with the Constitution. Minor details may be left to the
legislature without impairing the self-executing nature of constitutional
provisions.
xxx

xxx

xxx

Respondents . . . argue that the non-self-executing nature of Sec. 10,

second par., of Art. XII is implied from the tenor of the first and third
paragraphs of the same section which undoubtedly are not self-executing.
The argument is flawed. If the first and third paragraphs are not selfexecuting because Congress is still to enact measures to encourage the
formation and operation of enterprises fully owned by Filipinos, as in the first
paragraph, and the State still needs legislation to regulate and exercise
authority over foreign investments within its national jurisdiction, as in the
third paragraph, then a fortiori, by the same logic, the second paragraph can
only be self-executing as it does not by its language require any legislation in
order to give preference to qualified Filipinos in the grant of rights, privileges
and concessions covering the national economy and patrimony. A
constitutional provision may be self-executing in one part and non-selfexecuting in another.
xxx. Sec. 10, second par., Art. XII of the 1987 Constitution is a
mandatory, positive command which is complete in itself and which needs no
further guidelines or implementing laws or rules for its enforcement. From its
very words the provision does not require any legislation to put it in

operation. It is per se judicially enforceable. When our Constitution

mandates that [i]n the grant of rights, privileges, and concessions covering
national economy and patrimony, the State shall give preference to qualified
Filipinos, it means just that - qualified Filipinos shall be preferred. And when
our Constitution declares that a right exists in certain specified circumstances
an action may be maintained to enforce such right notwithstanding the
absence of any legislation on the subject; consequently, if there is no statute
especially enacted to enforce such constitutional right, such right enforces
itself by its own inherent potency and puissance, and from which all
legislations must take their bearings. Where there is a right there is a
remedy. Ubi jus ibi remedium.
2. YES, the controlling shares of the
Corporation form part of our patrimony as a nation.

Manila

Hotel

In its plain and ordinary meaning, the term patrimony pertains to

heritage. When the Constitution speaks of national patrimony, it refers not
only to the natural resources of the Philippines, as the Constitution could have
very well used the term natural resources, but also to the cultural heritage of
the Filipinos.
xxx

xxx

xxx

For more than eight (8) decades Manila Hotel has bore mute witness
to the triumphs and failures, loves and frustrations of the Filipinos; its
existence is impressed with public interest; its own historicity associated with
our struggle for sovereignty, independence and nationhood. Verily, Manila
Hotel has become part of our national economy and patrimony. For sure,
51% of the equity of the MHC comes within the purview of the constitutional
shelter for it comprises the majority and controlling stock, so that anyone
who acquires or owns the 51% will have actual control and management of
the hotel. In this instance, 51% of the MHC cannot be disassociated from the
hotel and the land on which the hotel edifice stands. Consequently, we
cannot sustain respondents claim that the Filipino First Policy provision is not
applicable since what is being sold is only 51% of the outstanding shares of
the corporation, not the Hotel building nor the land upon which the building
stands.
3. YES, GSIS is included in the term State, hence, it is
mandated to implement 10, paragraph 2, Article XII of the
Constitution.
It is undisputed that the sale of 51% of the MHC could only be carried
out with the prior approval of the State acting through respondent Committee
on Privatization. [T]his fact alone makes the sale of the assets of
respondents GSIS and MHC a state action. In constitutional jurisprudence,
the acts of persons distinct from the government are considered state
action covered by the Constitution (1) when the activity it engages in is a

public function; (2) when the government is so significantly involved with

the private actor as to make the government responsible for his action; and,
(3) when the government has approved or authorized the action. It is
evident that the act of respondent GSIS in selling 51% of its share in
respondent MHC comes under the second and third categories of state
action. Without doubt therefore the transaction, although entered into by
respondent GSIS, is in fact a transaction of the State and therefore subject to
the constitutional command.
When the Constitution addresses the State it refers not only to the
people but also to the government as elements of the State. After all,
government is composed of three (3) divisions of power - legislative,
executive and judicial. Accordingly, a constitutional mandate directed to the
State is correspondingly directed to the three (3) branches of government. It
is undeniable that in this case the subject constitutional injunction is
addressed among others to the Executive Department and respondent GSIS,
a government instrumentality deriving its authority from the State.
4. YES, GSIS should give preference to the petitioner in the
sale of the controlling shares of the Manila Hotel Corporation.
It should be stressed that while the Malaysian firm offered the higher
bid it is not yet the winning bidder. The bidding rules expressly provide that
the highest bidder shall only be declared the winning bidder after it has
negotiated and executed the necessary contracts, and secured the requisite
approvals. Since the Filipino First Policy provision of the Constitution bestows
preference on qualified Filipinos the mere tending of the highest bid is not an
assurance that the highest bidder will be declared the winning
bidder. Resultantly, respondents are not bound to make the award yet, nor
are they under obligation to enter into one with the highest bidder. For in
choosing the awardee respondents are mandated to abide by the dictates of
the 1987 Constitution the provisions of which are presumed to be known to
all the bidders and other interested parties.
xxx

xxx

xxx

Paragraph V. J. 1 of the bidding rules provides that [i]f for any

reason the Highest Bidder cannot be awarded the Block of Shares, GSIS may
offer this to other Qualified Bidders that have validly submitted bids provided
that these Qualified Bidders are willing to match the highest bid in terms of
price per share. Certainly, the constitutional mandate itself is reason
enough not to award the block of shares immediately to the foreign bidder
notwithstanding its submission of a higher, or even the highest, bid. In fact,
we cannot conceive of a stronger reason than the constitutional injunction
itself.
In the instant case, where a foreign firm submits the highest bid in a
public bidding concerning the grant of rights, privileges and concessions

covering the national economy and patrimony, thereby exceeding the bid of a
Filipino, there is no question that the Filipino will have to be allowed to match
the bid of the foreign entity. And if the Filipino matches the bid of a foreign
firm the award should go to the Filipino. It must be so if we are to give life
and meaning to the Filipino First Policy provision of the 1987
Constitution. For, while this may neither be expressly stated nor
contemplated in the bidding rules, the constitutional fiat is omnipresent to be
simply disregarded. To ignore it would be to sanction a perilous skirting of
the basic law.

subject of judicial cognizance in the courts of this country, it is subject to such

acts as Congress may pass for its enforcement, modification, or repeal.

Note: Boris Mejoff, an alien of Russian descent was brought to this country
from Shanghai as a Japanese spy and was arrested upon liberation of this
country from the Japanese regime.
Head Money Cases Edye v. Robertson 112 U.S. 580 (1884)

Whitney v. Robertson
124 U.S. 190 (1888)

Facts:
In 1882 the Congress passed an act providing that a duty of fifty cents should
be collected for each and every passenger who was not a citizen of the United
States, coming from a foreign port to any port within the United States.
Individuals and steamship companies brought suit against the collector of
customs at New York, Mr. WH Robertson, for the recovery of the sums of
money collected. The act was challenge on the grounds that it violated
numerous treaties of the US government with friendly nations.
Issue:
WON

the

act

is

void

because

of

the

conflict

with

the

FACTS:
The plaintiffs are merchants, doing business in the city of New York;
and in August, 1882, they imported a large quantity of 'centrifugal and
molasses sugars,' the produce and manufacture of the island of San
Domingo. These goods were similar in kind to sugars produced in the
Hawaiian islands, which are admitted free of duty under the treaty with the
king of those islands, and the act of congress passed to carry the treaty into
effect.

treaty.

Ruling:
A treaty is a compact between independent nations, which depends for its
enforcement upon the interest and honor of the governments that are parties
to a treaty. Treaties that regulate the mutual rights of citizens and subjects of
the contracting nations are in the same category as acts of Congress. When
these rights are of such a nature as to be enforced by a court of justice, the
court resorts to the treaty as it would to a statute. However, a constitution
gives a treaty no superiority over an act on congress. In short, so far as a
treaty made by the United States with any foreign nation can become the

They were duly entered at the custom-house at the port of New York;
the plaintiffs claiming that, by the treaty with the republic of San Domingo,
the goods should be admitted on the same terms, that is, free of duty, as
similar articles, the produce and manufacture of the Hawaiian islands.

The defendant, who was at the time collector of the port, refused to
allow this claim, treated the goods as dutiable articles under the acts of
congress, and exacted duties on them to the amount of $21,936.

The plaintiffs appealed from the collector's decision to the secretary of

the treasury, by whom the appeal was denied. They then paid, under protest,
the duties exacted, and brought the present action to recover the amount.
The defendant demurred to the complaint, the demurrer was sustained, and
final judgment was entered in his favor; to review which the case is brought
here.

ISSUE:
Whether or not the treaty with a foreign sovereign has been violated

HELD:
Supreme Court held that act of congress under which the duties were
collected, authorized their exaction. It is of general application, making no
exception in favor of goods of any country. It was passed after the treaty with
the Dominican republic, and, if there be any conflict between the stipulations
of the treaty and the requirements of the law, the latter must control. A
treaty is primarily a contract between two or more independent nations, and
is so regarded by writers on public law. For the infraction of its provisions a
remedy must be sought by the injured party through reclamations upon the
other. When the stipulations are not self- executing, they can only be
enforced pursuant to legislation to carry them into effect, and such legislation
is as much subject to modification and repeal by congress as legislation upon
any other subject. If the treaty contains stipulations which are self-executing,
that is, require no legislation to make them operative, to that extent they
have the force and effect of a legislative enactment. Congress may modify
such provisions, so far as they bind the United States, or supersede them
altogether.

If the country with which the treaty is made is dissatisfied with the
action of the legislative department, it may present its complaint to the
executive head of the government, and take such other measures as it may
deem essential for the protection of its interests.

The courts can afford no redress. Whether the complaining nation has
just cause of complaint, or our country was justified in its legislation, are not
matters for judicial cognizance.

It follows, therefore, that, when a law is clear in its provisions, its

validity cannot be assailed before the courts for want of conformity to
stipulations of a previous treaty not already executed. Considerations of that
character belong to another department of the government. The duty of the
courts is to construe and give effect to the latest expression of the sovereign
will.

In Head-Money Cases, 112 U. S. 580, it was objected to an act of

congress that it violated provisions contained in treaties with foreign nations,
but the court replied that, so far as the provisions of the act were in conflict
with any treaty, they must prevail in all the courts of the country; and, after a
full and elaborate consideration of the subject, it held that, 'so far as a treaty
made by the United States with any foreign nation can be the subject of
judicial cognizance in the courts of this country, it is subject to such acts as
congress may pass for its enforcement, modification, or repeal.'

Judgment affirmed.
By the constitution, a treaty is placed on the same footing, and made
of like obligation, with an act of legislation. Both are declared by that
instrument to be the supreme law of the land, and no superior efficacy is
given to either over the other. When the two relate to the same subject, the
courts will always endeavor to construe them so as to give effect to both, if
that can be done without violating the language of either; but, if the two are
inconsistent, the one last in date will control the other: provided, always, the
stipulation of the treaty on the subject is self- executing.

WALTER UPRIGHT VS. MERCURY BUSINESS MACHINES

April 11, 1961
Justice Breitel
An unrecognized government is a state or government which does not
enjoy diplomatic recognition. It has probably claimed statehood but lacked
jurisdiction from at least one of its states. In this case, the status of East
German territory was once belligerent. It was unrecognized pending a
reunification plan and free secret elections so the State Department refused
to recognize it.
This case involves the issue on the capacity of plaintiff to sue before
the US Court, the effect that the recognition of a government might conflict
with executive nonrecognition, and this case discusses the traditional law in
taking juridical cognizance of unrecognized governments or the De Facto
Principle.

FACTS

Plaintiff, Walter Upright, is an American citizen and resident of New York. He is s

Court as the assignee for value of a trade acceptance drawn on and accep
Business Machines which is a New York Corporation.

The acceptance represented an obligation to pay for typewriters sold and d

drawer-assignor Polygraph Expert GmbH.

Mercurys counsel had been advised from the Chief of Economic Affairs of t
Polygraph was a state-controlled enterprise of the so-called German Democratic

Mercury answered alleging that:

Upright lacked capacity to sue since the German Democratic Republic
United States.
It is organized under the laws of the United States which makes it an
government and as such could not maintain the suit and as an assign
right to maintain the suit than his assignor.

Justice Streit of the Trial Court ruled that the defense was valid and upheld the well-established
the trade acceptance
rule that itself,
an
was in violation of public or national policy.

Such government
a defense would
unrecognized government could not sue, therefore the assignee of said unrecognized
couldconstitute one in the nature of illegality and if est
might, render all that ensued from the infected transaction void and unen
likewise not sue.
cannot escape liability merely by alleging and proving that it dealt with a
functioning as the arm of and instrumentality of an unrecognized governmen
ISSUES

W/N the TC erred in ruling that Upright could not sue based solely on unrecognition;The
anddefendant, however, had not alleged that its transaction with the East
assignment
Upright to
of the trade acceptance was illegal or violative of publ

W/N the transaction entered into was illegal or against public policy (This issue has to be to
resolved

Indeed,
during
the
argument
of the case, it was stated that the typewrite
determine if an assignee of an unrecognized government could sue before the courts)
and passed regularly through the US Customs.
Defendants was obviously hard put to find a policy that forbade suit or
HELD
transaction was both permitted and facilitated by the federal governme
1 Yes, the TC erred.
policy,
however,
heacould not prevail.

Justice Breitel ruled that the political decision not to recognize a government does
not deprive
it of

juridically cognizable de facto existence.

The courts are not precluded by nonrecognition from considering the effect
on private
rights of did
the not mean, and the court would not infer
Thus,
nonrecognition
acts and laws of such a government, effects that nonrecognition
plainly
could
not
prevent;
from it, the necessity to disregard the inevitable effect of acts and laws of an
nonrecognition does not affect the capacity of the unrecognized
government,government
its entities, on
and private rights and transactions. The
unrecognized
persons living within its territory to trade and to contract.
nonrecognition did not affect the capacity of citizens or entities subject to the
While it may be true that the judicial arm obligates itself to follow the political arm (like in not
authority of the unrecognized government to trade.
recognizing a certain government), nevertheless, it will not exaggerate or compound the consequences
required by such narrow purposes in construing the rights and obligationsThe
affected
by the
acts notice
of
court takes
judicial
that the GDR is not recognized by their
unrecognized governments
Government. However, even though plaintiffs assignor would have no right
It is insufficient for defendant Mercury merely to allege the nonrecognition of the East German
to sue before the court as a corporation since the recognition of that legal
Government and that Polygraph was organized by and is an arm and instrumentality of such
entity is barred by the foreign policy of the US Government, nevertheless it
unrecognized East German Government. The lack of jural status for such government or its creature
cannot be denied that some organization or group of persons does exist and
corporation is not determinative of whether transactions with it will be denied enforcement in American
entered into a commercial transaction with the defendant. If it were clear
courts, so long as the government is not the suitor (since if the unrecognized government is allowed to
that this group of people consisted of private citizens unconnected with the
sue, this would be deemed a recognition of jural status).
unrecognized government, the court is of the opinion that no further question
It is a false notion, if it prevail anywhere, that an unrecognized government is always an evil thing and
would exist. The foreign policy of the US Government does not require us to
all that occurs within its governmental purview are always evil works. There are many things which may
deny that there are people residing in and doing business in a certain
occur within the purview of an unrecognized government which are not evil and which will be given
geographical area. No prohibition or restriction seems to have been imposed
customary legal significance in the courts of nations which do not recognize the prevailing
on trading in the items which are the basis of this cause of action. Where, as
facto government. In a time in which governments with established control over territories may be
here, it has received the benefits of the commercial transaction, it would be
denied recognition for many reasons, it does not mean that the denizens of such territories or the
inequitable to permit defendant to retain the fruits thereof without
corporate creatures of such powers do not have the juridical capacity to trade, transfer title, or collect
compensation.
the price for the merchandise they sell to outsiders, even in the courts of nonrecognizing nations.
Since nonrecognition itself neither prevents private transaction nor bars the courts from considering
them, such transactions are unenforceable only if they violate a definite public policy.

No.

Nonrecognition is a material fact but only a preliminary one. The conclusion will depend upon factors in
addition to that of nonrecognition.

Thus, in order to exculpate defendant from payment for the merchandise it has received, it would have
to allege and prove that the sale upon which the trade acceptance was based, or that the negotiation of

ISSUE:
Whether or not petitioner SEAFDEC is an international organization enjoying
diplomatic immunity
RULING:
Yes, SEAFDEC is an international organization beyond the jurisdiction of public
respondent NLRC. Philippines was one of the signatories to the agreement.
Being an intergovernmental organization, SEAFDEC enjoys functional
independence and freedom from control of the state. One of the basic
immunities of an international organization is immunity from local jurisdiction.
The obvious reason for this is that the subjection of such an organization to
the authority of the local courts would afford a convenient medium thru which
the host government may interfere in their operations or even influence or
control its policies and decisions of the organization; besides, such objection
to local jurisdiction would impair the capacity of such body to discharge its
responsibilities impartially on behalf of its member-states

G.R. Nos. 97468-70 September 2, 1993

SOUTHEAST ASIAN FISHERIES DEVELOPMENT CENTER vs. DANILO
ACOSTA
FACTS:
Two labor cases were filed by respondents against the petitioner, Southeast
Asian Fisheries Development Center (SEAFDEC), before the NLRC Iloilo for an
alleged wrongfully terminated from their employment by the petitioner.
Petitioner contending to be an international inter-government organization,
composed of various Southeast Asian countries, filed a Motion to Dismiss,
challenging the jurisdiction of the public respondent in taking cognizance of
the above cases. However the motion to dismiss was denied.

economic advantage or benefit for the people of Asia and other major ricegrowing areas through improvement in quality and quantity of rice.
IRRI was organized and registered with the Securities and Exchange
Commission as a private corporation subject to all laws and regulations.
However, by virtue of Pres. Decree No. 1620, promulgated on 19 April 1979,
IRRI was granted the status, prerogatives, privileges and immunities of an
international organization
Organized Labor Association in Line Industries and Agriculture (OLALIA), is a
legitimate labor organization with an existing local union, the Kapisanan ng
Manggagawa at TAC sa IRRI (Kapisanan, for short) in respondent IRRI.
20 April 1987, the Kapisanan filed a Petition for Direct Certification Election
with Region IV, Regional Office of the Department of Labor and Employment
(DOLE).
IRRI opposed the petition invoking Pres. Decree No. 1620 conferring upon it
the status of an international organization and granting it immunity from all
civil, criminal and administrative proceedings under Philippine laws. On 7 July
1987, Med-ArbiterLeonardo M. Garcia, upheld the opposition on the basis of
Pres. Decree No. 1620 and dismissed the Petition for Direct Certification.

KAPISANAN NG MANGGAGAWA vs SECRETARY OF LABOR AND

EMPLOYMENT AND INTERNATIONAL RICE RESEARCH INSTITUTE, INC
G.R. No. 89331 September 28, 1990
MELENCIO-HERRERA, J.:
Facts:
The facts disclose that on 9 December 1959, the Philippine Government and
the Ford and Rockefeller Foundations signed a Memorandum of Understanding
establishing the International Rice Research Institute (IRRI) at Los Baos,
Laguna. It was intended to be an autonomous, philanthropic, tax-free, nonprofit, non-stock organization designed to carry out the principal objective of
conducting basic research on the rice plant, on all phases of rice production,
management, distribution and utilization with a view to attaining nutritive and

Appealed to Bureau of Labor Relations(BLR). Reversed, it allowed the

election.
Appealed to Secretary of Labor. Reversed the decision of BLR. Dismissed the
petition for certification election.
Issue:
Whether or not P.D. No 1620 grants IRRI immunity from all civil, criminal and
administrative proceedings.
Held:
The grant of immunity from local jurisdiction to ICMC and IRRI is clearly
necessitated by their international character and respective purposes. The
objective is to avoid the danger of partiality and interference by the host
country in their internal workings. The exercise of jurisdiction by the
Department of Labor in these instances would defeat the very purpose of
immunity, which is to shield the affairs of international organizations, in

accordance with international practice, from political pressure or control by

the host country to the prejudice of member States of the organization, and
to ensure the unhampered performance of their functions.
ICMCs and IRRIs immunity from local jurisdiction by no means deprives
labor of its basic rights, which are guaranteed by Article II, Section 18, Article
III, Section 8, and Article XIII, Section 3 (supra), of the 1987 Constitution;
and implemented by Articles 243 and 246 of the Labor Code, relied on by the
BLR Director and by Kapisanan.
Neither are the employees of IRRI without remedy in case of dispute with
management as, in fact, there had been organized a forum for better
management-employee relationship as evidenced by the formation of the
Council of IRRI Employees and Management (CIEM) wherein both
management and employees were and still are represented for purposes of
maintaining mutual and beneficial cooperation between IRRI and its
employees. The existence of this Union factually and tellingly belies the
argument that Pres. Decree No. 1620, which grants to IRRI the status,
privileges and immunities of an international organization, deprives its
employees of the right to self-organization.

legal process except for borrowings, guaranties or the sale of securities

pursuant to Article 50(1) and Article 55 of the Agreement Establishing the
Asian Development Bank (the "Charter") in relation to Section 5 and Section
44 of the Agreement Between The Bank and The Government Of The
Philippines

Regarding

The

Bank's

Headquarters

(the

"Headquarters

Agreement").
The Labor Arbiter took cognizance of the complaint on the impression
that the ADB had waived its diplomatic immunity from suit and, in time,
rendered a decision in favor Magnayi. The ADB did not appeal the decision.
Instead, on 03 November 1993, the DFA referred the matter to the NLRC; in
its referral, the DFA sought a "formal vacation of the void judgment." When
DFA failed to obtain a favorable decision from the NLRC, it filed a petition for
certiorari.

Issues: Whether or not NLRC can could assume jurisdiction over a case of
illegal dismissal against ADB

Held: NO
Under the Charter and Headquarters Agreement, the ADB enjoys
immunity from legal process of every form, except in the specified cases of
borrowing and guarantee operations, as well as the purchase, sale and
underwriting of securities. The Banks officers, on their part, enjoy immunity
in respect of all acts performed by them in their official capacity. The Charter
DEPT. OF FOREIGN AFFAIRS V NLRB

Facts: On 27 January 1993, private respondent Magnayi filed an illegal

dismissal case against Asian Development Bank. Two summonses were
served, one sent directly to the ADB and the other through the Department of
Foreign Affairs. ADB and the DFA notified respondent Labor Arbiter that the
ADB, as well as its President and Officers, were covered by an immunity from

and the Headquarters Agreement granting these immunities and privileges

are treaty covenants and commitments voluntarily assumed by the Philippine
government which must be respected.

Being an international organization that has been extended a diplomatic

status, the ADB is independent of the municipal law. "One of the basic
immunities of an international organization is immunity from local jurisdiction,
i.e., that it is immune from the legal writs and processes issued by the

tribunals of the country where it is found. The obvious reason for this is that
the subjection of such an organization to the authority of the local courts
would afford a convenient medium thru which the host government may
interfere in their operations or even influence or control its policies and
decisions of the organization; besides, such subjection to local jurisdiction
would impair the capacity of such body to discharge its responsibilities

DOCTRINE:
Diplomatic immunity is essentially a political question and courts should
refuse to look beyond a determination by the executive branch of the
government, and where the plea of diplomatic immunity is recognized and
affirmed by the executive branch of the government as in the case at bar, it is
then the duty of the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government, the Solicitor
General in this case, or other officer acting under his direction.

impartially on behalf of its member-states."

FACTS:
Dr. Verstuyft, assigned by WHO to its regional office in Manila as Acting
Assistant Director of Health Services, was suspected by the Constabulary
Offshore Action Center (COSAC) officers of carrying dutiable goods under the
Customs and Tariff Code of the Philippines. Respondent Judge then issued a
search warrant at the instance of the COSAC officers for the search and
seizure of the personal effects 1 of Dr. Verstuyft, notwithstanding his being
entitled to diplomatic immunity, pursuant to the Host Agreement executed
between Philippine Government and WHO.
Such diplomatic immunity carries with it, among other diplomatic privileges
and immunities, personal inviolability, inviolability of the official's properties,
exemption from local jurisdiction, and exemption from taxation and customs
duties.
Upon protest of WHO Regional Director Dr. Dy, DFA Sec. Carlos Romulo
personally wired Judge Aquino that Dr. Verstuyft is entitled to immunity from
search in respect for his personal baggage as accorded to members of
diplomatic missions pursuant to the Host Agreement and further requested
for the suspension of the search warrant. The Solicitor General accordingly
joined the petitioner for the quashal of the search warrant but respondent
judge
nevertheless
summarily
denied
the
quashal 2.
World Health Organization v. Aquino (48 SCRA 243)
Petitioners: WHO & Dr. Leonce Verstuyft
Respondents: CFI Judge Aquino, Major Cruz, Major Relleve, Captain Navarro
of the COSAC (Constabulary Offshore Action Center)
Ponente: Teehankee, J. Date: Nov. 29, 1972

Hence, this petition for certiorari and prohibition to set aside Judge Aquinos
refusal to quash the search Verstuyft's personal effects contained in 12 crates
entered the Philippines as unaccompanied baggage, they were accordingly
allowed free entry from duties and taxes, which he stored at Eternit
Corporation warehouse.

Verstuyft's personal effects contained in 12 crates entered the Philippines as

unaccompanied baggage, they were accordingly allowed free entry from duties and
taxes, which he stored at Eternit Corporation warehouse.

1
Respondent judge's justification in his said order:
The articles contained in the 2 baggages belonging to Dr. Verstuyft opened by
Capt. Rellevo & Navarro, are 120 bottles of assorted foreign wine and 15 tins
of PX goods which are said to be dutiable under the Customs and Tariff Code
of the Philippines. The two COSAC officers manifested that they positively
believe that there are more contraband items in the nine other huge crates
which are still unopened. The Court is certain that the WHO would not
tolerate violations of local laws by its officials and/or representatives under a
claim of immunity granted to them by the host agreement. Since the right of
immunity invoked by the DFA is admittedly relative and not absolute, and
there are strong and positive indications of violation of local laws, the Court
declines to suspend the effectivity of the search warrant issued in the case at
bar....

It is a recognized principle of international law and under our system

of separation of powers that diplomatic immunity is essentially a
political question and courts should refuse to look beyond a
determination by the executive branch of government, and where the
plea of diplomatic immunity is recognized by the executive branch of
the government as in the case at bar, it is then the duty of the courts
to accept the claim of immunity upon appropriate suggestion by the
principal law officer of the government, the SolGen in this case, or
other officer acting under his discretion. Courts may not so exercise
their jurisdiction by seizure and detention of property, as to
embarrass the executive arm of the government in conducting foreign
relations.

warrant. WHO joins Dr. Verstuyft in asserting diplomatic immunity.

ISSUE:
Whether or not personal effects of Dr. Verstuyft can be exempted from search
and
seizure
under
the
diplomatic
immunity.
HELD:

Philippines is bound by the procedure laid down in Article VII of

the Convention on the Privileges and Immunities of the
Specialized Agencies of the United Nations 3. Article VII on abuse
of privilege, calls for consultations between the Host State and the UN
agency concerned and in case no satisfactory result is reached, for
submission to the ICJ.

The seriousness of the matter is underscored when the provisions of

RA 75 enacted since October 21, 1946 to safeguard the jurisdictional
immunity of diplomatic officials in the Philippines are taken into
account. Said Act declares as null and void writs or processes sued
out or prosecuted whereby inter alia the person of an ambassador or
public minister is arrested or imprisoned or his goods or chattels are
seized or attached and makes it a penal offense for "every
person by whom the same is obtained or prosecuted, whether
as party or as attorney, and every officer concerned in
executing it" to obtain or enforce such writ or process.

The Court, therefore, holds the respondent judge acted without

jurisdiction and with grave abuse of discretion in not ordering the

Yes.:

RATIO:

2 Respondent judge's justification in his said order:The articles contained in the 2

baggages belonging to Dr. Verstuyft opened by Capt. Rellevo & Navarro, are 120
bottles of assorted foreign wine and 15 tins of PX goods which are said to be
dutiable under the Customs and Tariff Code of the Philippines. The two COSAC
officers manifested that they positively believe that there are more contraband items
in the nine other huge crates which are still unopened. The Court is certain that the
WHO would not tolerate violations of local laws by its officials and/or representatives
under a claim of immunity granted to them by the host agreement. Since the right of
immunity invoked by the DFA is admittedly relative and not absolute, and there are
strong and positive indications of violation of local laws, the Court declines to
suspend the effectivity of the search warrant issued in the case at bar....

The executive branch of the Philippines has expressly recognized that

Verstuyft is entitled to diplomatic immunity, pursuant to the
provisions of the Host Agreement. The DFA formally advised
respondent judge of the Phil. Govt's official position. The SolGen, as
principal law officer of the government, likewise expressly affirmed
said petitioner's right to diplomatic immunity and asked for the
quashal
of
the
search
warrant.

Convention was adopted by the UN GA in1947; it was concurred in by the

Philippine Senate in 1949; and the Philippine Instrument of Ratification was signed
by the President of the Republic on Feb. 21, 1959 applying the Convention to the
WHO

quashal of the search warrant issued by him in disregard of the

diplomatic immunity of petitioner Verstuyft.

DISPOSITIVE:
The writs of certiorari and prohibition prayed for are hereby granted, and the
TRO issued against execution or enforcement of the questioned search
warrant, which is hereby declared null and void, is hereby made permanent.

judge received an office of protocol from the DFA stating that petitioner is
covered by immunity from legal process under section 45 of the Agreement
between the ADB and the Philippine Government regarding the Headquarters
of the ADB in the country. Based on the said protocol communication that
petitioner is immune from suit, the MeTC judge without notice to the
prosecution dismissed the criminal cases. The latter filed a motion for
reconsideration which was opposed by the DFA. When its motion was denied,
the prosecution filed a petition for certiorari and mandamus with the RTC of
Pasig City which set aside the MeTC rulings and ordered the latter court to
enforce the warrant of arrest it earlier issued. After the motion for
reconsideration was denied, the petitioner elevated the case to the SC via a
petition for review arguing that he is covered by immunity under the
Agreement and that no preliminary investigation was held before the criminal
case.
"Agreement Between the Asian Development Bank and the Government of
the Republic of the Philippines Regarding the Headquarters of the Asian
Development Bank" wherein section 45 of the said agreement states that:
Officers and staff of the bank, including for the purpose of this Article experts
and consultants performing missions for the Bank, shall enjoy the following
privileges
and
immunities:
a.) Immunity from legal process with respect to acts performed by them in
their official capacity except when the Bank waives the immunity.
ISSUE: Whether or not the petitioners case is covered with immunity from
legal process with regard to Section 45 of the Agreement between the ADB
and the Philippine Govt.
HELD:

JEFFREY LIANG VS. PEOPLE OF THE PHILIPPINES

FACTS:
Petitioner is an economist, working with the Asian Development Bank (ADB).
Sometime in 1994, for allegedly uttering defamatory words against fellow
ADB worker Joyce Cabal, he was charged before the MeTC of Mandaluyong
City with two counts of oral defamation. Petitioner was arrested by virtue of a
warrant issued by the MeTC. After fixing petitioners bail, the MeTC released
him to the custody of the Security Officer of ADB. The next day, the MeTC

(1) NO. The petitioners case is not covered by the immunity. Courts cannot
blindly adhere to the communication from the DFA that the petitioner is
covered by any immunity. It has no binding effect in courts. The court needs
to protect the right to due process not only of the accused but also of the
prosecution. Secondly, the immunity under Section 45 of the Agreement is
not absolute, but subject to the exception that the acts must be done in
official capacity. Hence, slandering a person could not possibly be covered
by the immunity agreement because our laws do not allow the commission of
a crime, such as defamation, in the name of official duty. The immunity of
ADB is absolute whereas the immunity of its officials and employees is
restricted only to official acts. He stands charged of grave slander for

allegedly uttering defamatory remarks against his secretary. Considering that

the immunity accorded to petitioner is limited only to acts performed in his
official capacity, it becomes necessary to make a factual determination of
whether or not the defamatory utterances were made pursuant and in
relation to his official functions as a senior economist.

Issue: Whether the executive agreement is restrained by constitutional

limitations.
Held: Yes. The Constitution in its entirety applies to the trials. Since their
court-martial did not meet the requirements of Art. III 2 or the 5 th and 6th
Amendments the court was compelled to determine if there is anything within
the Constitution which authorizes the military trial of dependents
accompanying the armed forces overseas. No agreement with a foreign
nation can confer power on the Congress, or on any other branch of
Government, which is free from the restraints of the Constitution.
Justice Black declared: "The concept that the Bill of Rights and other
constitutional protections against arbitrary government are inoperative when
they become inconvenient or when expediency dictates otherwise is a very
dangerous doctrine and if allowed to flourish would destroy the benefit of a
written Constitution and undermine the basis of our government."
In general, the president cannot contract away individual constitutional rights.
It is within the Presidents power to enter into these agreements, however,
but the agreement cannot conflict with enacted statute or the constitution.

Reid v. Covert
354 U.S. 1 (1957)
Facts: Mrs. Covert killed her husband on an airbase in England. Pursuant to a
status-of-forces executive agreement with England, she was tried and
convicted by US court-martial without a jury trial under the UCMJ. She
petitioned a writ of habeas corpus on the grounds that the conviction violated
her 5th & 6th Amendment rights to be tried by a jury after indictment by a
grand jury.

the King of Saudi Arabia in 1987. The second document, titled Minutes had
been signed in Qatar by the Ministers of Foreign Affairs of Bahrain, Qatar, and
Saudi Arabia. Qatar argued that the two documents were international
agreements creating an obligation for Qatar and Bahrain to submit to the ICJ
the whole of their dispute involving sovereignty over certain islands,
sovereign rights over certain sholas, and the delimitation of a maritime
boundary between the two States. Though the committee met several time, it
failed to produce an agreement on the specific terms for submitting the
dispute to the Court. However, Bahrain contended that the two documents did
not constitute international agreements, and that Qatar did not have a
jurisdictional basis for bringing a unilateral suit in the ICJ.
Issue. Whether or not the exchange of notes between the two states (Qatar
and Bahrain) was considered an international agreement.
Held:
Yes. Article 2, p.1 of the Vienna Convention on the Law of Treaties,
defined Treaty as an international agreement concluded between States in
written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
designation.
An international agreement creating rights and obligations can be constituted
by the signatories to the minutes of meetings and letters exchanged. Though
Bahrain argued that the Minutes were only a record of negotiation and could
not serve as a basis for the I.C.J.s jurisdiction, both parties agreed that the
letters constituted an international agreement with binding force.

Qatar v. Bahrain
ICJ 1994
Facts:
Qatar brought suit against Bahrain in the International Court of
Justice (ICJ) to determine whether two exchanges of letters between the
countries constituted international agreements establishing a jurisdictional
basis for the ICJ to hear all disputes between Qatar and Bahrain. The first
letter was drafted by the Amirs of Qatar and Bahrain through the mediation of

International agreements do not take a single form under the Vienna

Convention on the Law of Treaties, and the Court has enforced this rule in the
past. In this case, the Minutes not only contain the record of the meetings
between the parties, it also contained the reaffirmation of obligations
previously agreed to an agreement to allow the King of Saudi Arabia to try to
find a solution to the dispute during a six-month period, and indicated the
possibility of the involvement of the I.C.J. The Minutes stipulated
commitments to which the parties agreed, thereby creating rights and
obligations in international law. This is the basis therefore of the existence of
international agreement.
Further, there is no doubt that language plays a vital role in influencing a
courts decision as to whether an agreement has been entered into and in this

particular case, the language was the main focus of the I.C.J and it was the
contents of the Minutes that persuaded the I.C.J. to reject the Bahrain foreign
ministers claim that he did not intend to enter into an agreement. Where this
is compared to general U.S. contract law, where a claim by one of the parties
that no contract existed because there was no meeting of the minds might be
the ground upon which a U.S. court would consider whether a contract did

exist with more care and thought than the I.C.J. gave the foreign minister of
Bahrains claims.
The ICJ found that both the 1987 and 1990 exchanges and their resulting
documents constituted international agreements. Thus, the ICJ concluded
that it had jurisdiction to hear the sovereignty and boundary disputes
between Qatar and Bahrain.