Case Digests on

Public International Law (PIL)

Group 9 Members:
Agoncillo, Jodee A.
Beldia, Cherry Lyn D.
Montero, Florenz May
Ramones, Reinier P.
Reyes, Primma Belle Sophia S.
Uy, Patrizia Denise L.
 I. THE NATURE &
SOURCES OF
INTERNATIONAL LAW
1) 83 Phil. 171 (March 26, 1949)
SHIGENORI KURODA v. Major General RAFAEL JALANDONI, et. al.
FACTS: Shigenori Kuroda, a former lieutenant-general of the Japanese Imperial Army and commanding
general of the Japanese Imperial Forces in the Philippines from 1943 to1944, assailed the constitutionality
of Executive Order No. 68 which allowed military commissions to try individuals accused as war crimes.
Kuroda faced charges before the Military Commission for his failure to discharge his duties by
allowing his subordinates to commit brutal atrocities and other high crimes against noncombatant
civilians and prisoners of the Imperial Japanese Forces. These acts violated the laws and customs of wars.
In his petition, Kuroda argued that the Military Commission had no jurisdiction to try petitioner
for acts committed in violation of the Hague and the Geneva Conventions since the Philippines was not a
signatory to the first and signed the second only in 1947 or three years after the alleged crime occurred.
EO No. 68, he said, is illegal since it is not based on any valid law.
He also challenged the participation of American lawyers Melville S. Hussey and Robert Port in
the prosecution of his case on the ground that they were not qualified to practice law in Philippines in
accordance with our Rules of Court. Further, he also sought to enjoin and prohibit the said lawyers from
participating in the prosecution of his case as their appointment was unconstitutional given that US was
not a party to the case.
ISSUES:
(1) Whether or not Executive Order no 68 is unconstitutional— NO.
(2) Whether or not the Military Commission has jurisdiction over the case— YES.
(3) Whether or not the two lawyers can represent the accused— YES.

HELD: The Court denied the petition affirming the validity of EO No. 68.
Despite the Philippines’ not being a signatory to the Hague and Geneva Conventions, the latter’s
rules and regulation formed part of and were wholly based on the generally accepted principles of
international law both accepted by US and Japan. Article 2, Section 3 of the 1943 Constitution provides
that the Philippines renounces war as an instrument of national policy and adopts the generally accepted
principles of international law as part of the laws of the nation. These guidelines were general and
extensive in its scope and were not confined to the recognition of rule and principle of international law
as compared in treaties to which our government may have been or shall be a signatory. The Court said
the President as the commander in chief is “fully empowered” to consummate the unfinished aspect of
war which includes the trial and protection of war criminals.
Anent the second issue, the Court held that the Military Commission had jurisdiction. The crimes
happened when the Philippines was under US sovereignty, therefore, Philippines was equally bound with
United States and Japan to the right and obligation contained in the treaties between the belligerent
countries. These rights and obligation were not removed by our assumption of full sovereignty.
As to the third issue, the Court ruled that the appointment of the two American attorneys was
not violative of Philippine sovereignty. There was nothing in the EO that required that counsel appearing
before said commission must be attorneys qualified to practice law in the Philippines. The US had already
submitted the vindication of crimes against its government and people to the country’s tribunal. The Court
ruled that the least the Philippine can do in spirit of comity was to allow them representation in such trials.
2) 75 Phil. 113 (September 17, 1945)
CO KIM CHAM v. EUSEBIO VALDEZ TAN KEH, et. al.
FACTS: Petitioner Co Kim Chan filed a petition for mandamus to compel respondent Judge Arsenio Dizon
of the Court of First Instance of Manila to continue hearing the former’s pending civil case initiated under
the regime of Philippine Republic and established during the Japanese military occupation.

Judge Dizon refused to take cognizance of petitioner’s case for two reasons. First, the lower courts
had no jurisdiction to continue judicial proceedings in the absence of an enabling law granting such
authority.

Second, the government established during the Japanese occupation was not a de facto
government since General Douglas MacArthur’s 1943 proclamation had the effect of invalidating and
nullifying all judicial proceedings and court judgments of the Philippines under the Philippine Executive
Commission and the Republic of the Philippines established during the Japanese military occupation.

The proclamation of MacArthur, the commander in chief of the US army, provided that all laws,
regulations and processes of any of the government in the Philippines than that of the said
Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy
occupation and control.

ISSUES:

(1) Whether or not there is a de facto government—YES.

HELD: Petition for Mandamus is granted. Motion for reconsideration is denied.

Anent the first issue, the Court ruled that there is a de facto government and that the military
occupation is actual and effective. Occupation once acquired does not cease unless the legitimate
government is reestablished and the occupant fails promptly to suppress such rebellion or guerrilla
operations. According to the court, the presence of guerrilla bands in barrios and mountains, and even in
towns in the Philippines whenever these towns were left by Japanese garrisons or by the detachments of
troops sent on patrol was not sufficient to make the military occupation ineffective. It also did not cause
the occupation to cease or prevent the constitution or establishment of a de facto government in the
Islands.

The Philippine Executive Commission, organized by Order no 1 is a civil government considered

As to the second issue, the Court held that the judicial decisions, acts and proceedings—which
are not of political complexion— made after the liberation or reoccupation of the Philippines by the US
and Philippine remain good and valid provided there is a valid de facto government based on the principle
of postliminy or postliminium in international law.
 MacArthur’s subsequent ruling did not invalidate the judgments. The law of nations and Wheaton
himself provides that judicial acts are legal and valid before and after the occupation has ceased and the
legitimate government has been restored. As there are vested rights which have been acquired by he
parties by virtue of such judgments, the restored government or its representative cannot reverse or
abrogate them without causing wrong or injury to the interested parties, because such reversal would
deprive them of their properties without due process of law.

The municipal laws of the conquered territory such as those which affect private rights of persons
and property and punish crimes, remain in force as long as they are compatible with the order of things
unless suspended or superseded by occupying belligerent.

The court said the construction of Mac Arthur’s proclamation should not include judicial
proceedings otherwise it would be a violation of the international law.
3) 90 Phil. 70 (September 26, 1951)
BORIS MEJOFF vs. THE DIRECTOR OF PRISONS

FACTS: This is a second petition for habeas corpus by Petitioner Boris Mejoff, an alien of Russian descent
who was brought to this country from Shanghai as a secret operative by the Japanese forces during the
latter's regime in these Islands. Upon liberation he was arrested as a Japanese spy, by U.S. Army Counter
Intelligence Corps.
Later, he was handed to the Commonwealth Government for disposition in accordance with
Commonwealth Act No. 682. Thereafter, the People's Court ordered his release. But the deportation
Board taking his case up, found that having no travel documents Mejoff was illegally in this country, and
consequently referred the matter to the immigration authorities. After the corresponding investigation,
the Board of commissioners of Immigration on April 5, 1948, declared that Mejoff had entered the
Philippines illegally in 1944, without inspection and admission by the immigration officials at a designation
port of entry and, therefore, it ordered that he be deported on the first available transportation to Russia.
The petitioner was then under custody, he having been arrested on March 18, 1948. In May 1948 he was
transferred to the Cebu Provincial Jail together with three other Russians to await the arrival of some
Russian vessels.
In July and August of that year two boats of Russian nationality called at the Cebu Port. But their
masters refused to take petitioner and his companions alleging lack of authority to do so. In October 1948
after repeated failures to ship this deportee abroad, the authorities removed him to Bilibid Prison at
Muntinglupa where he has been confined up to the present time, inasmuch as the Commissioner of
Immigration believes it is for the best interests of the country to keep him under detention while
arrangements for his departure are being made.
ISSUE: Whether or not Petitioner’s long detention may justify the issuance of a Writ of Habeas Corpus.
RULING: The Court held that the Writ of Habeas Corpus will be issued commanding the respondents to
release the petitioner from custody with certain conditions.
Aliens illegally staying in the Philippines have no right of asylum therein, even if they are
"stateless," which the petitioner claims to be. It is no less true however, as impliedly stated in this Court's
decision, supra, that foreign nationals, not enemy against whom no charge has been made other than
that their permission to stay has expired, may not indefinitely be kept in detention. The protection against
deprivation of liberty without due process of law and except for crimes committed against the laws of the
land is not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of
nationality.
According to Sec. 3, Article II of the Constitution, the Philippine "adopts the generally accepted
principles of international law as part of the law of Nation." In a resolution entitled "Universal Declaration
of Human Rights" of which the Philippines is a member, the right to life and liberty and all other
fundamental rights as applied to all human beings were proclaimed.
The right of accused to bail pending appeal of his case, as in the case of the ten Communists,
depends upon the discretion of the court, whereas the right to be enlarged before formal charges are
instituted is absolute. As already noted, not only are there no charges pending against the Petitioner
Mejoff, but the prospects of bringing any against him are slim and remote.
4) 57 SCRA 1 (May 3, 1974)
DONALD BAER v. vs. HON. TITO V. TIZON, et. al.

FACTS: Respondent Gener, as plaintiff, filed a complaint for injunction with the Court of First Instance
against petitioner, Donald Baer, who was a commander of the United States Naval Base in Olongapo. He
alleged that he was engaged in the business of logging in an area situated in Barrio Mabayo, Municipality
of Morong, Bataan 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. It was then issued by respondent Judge. Counsel for petitioner then 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.

Petitioner then filed a motion to dismiss, using such ground. It was therein pointed out that he is
the chief or head of an agency or instrumentality of the United States of America, with the subject matter
of the action being official acts done by him for and in behalf of the United States of America. It was added
that in directing the cessation of logging operations by respondent Gener within the Naval Base, petitioner
was entirely within the scope of his authority and official duty, the maintenance of the security of the
Naval Base and of the installations therein being the first concern and most important duty of the
Commander of the Base.
Respondent replied, relying on the principle that "a private citizen claiming title and right of
possession of certain property may, to recover possession of said property, sue as individuals, officers and
agents of the Government, who are said to be illegally withholding the same from him, though in doing
so, said officers and agents claim that they are acting for the Government." which was his basis for
sustaining the jurisdiction of respondent Judge. Petitioner thereafter made a written offer of
documentary evidence, including certified copies of telegrams of the Forestry Director to Forestry
personnel in Bataan, directing immediate investigation of illegal timber cutting in Bataan and calling
attention to the fact that the records of the office show no new renewal of timber license or temporary
extension permits. Respondent judge then issued an order granting respondent Gener's application for
the issuance of a writ of preliminary injunction and denied petitioner's motion to dismiss the opposition
to the application for a writ of preliminary injunction. A motion for reconsideration was then filed, but
having proved futile, a petition for certiorari was filed with the Supreme Court. The prayer was for the
nullification and setting aside of the writ of preliminary injunction issued by respondent Judge in the
aforesaid Civil Case No. 2984 of the Court of First Instance of Bataan.
ISSUE: WON the doctrine of immunity from suit without consent is applicable
RULING: Yes. Petitioner should prevail. The invocation of the doctrine of immunity from suit of a foreign
state without its consent is appropriate. Preceding jurisprudence cited by the case states that accuracy
demands the clarification that after the conclusion of the Philippine-American Military Bases Agreement,
the treaty provisions should control on such matter, the assumption being that there was a manifestation
of the submission to jurisdiction on the part of the foreign power whenever appropriate.
It is clear that the courts of the Philippines including the Municipal Court of Manila have no
jurisdiction over the present case for unlawful detainer. Such question of lack of jurisdiction was raised
and interposed at the very beginning of the action. The U.S. Government has not given its consent to the
filing of this suit which is essentially against her, though not in name.
 Moreover, this is not only a case of a citizen filing a suit against his own Government without the
latter's consent but it is of a citizen filing an action against a foreign government without said
government's consent, which renders more obvious the lack of jurisdiction of the courts of his country.
Such is a widely accepted principle of international law, which is made a part of the law of the
land, as specified in Article II, Section 3 of the 1987 Constitution, that a foreign state may not be brought
to suit before the courts of another state or its own courts without its consent. 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.
5) 272 SCRA 18 (May 2, 1997)
WIGBERTO E. TAÑADA, et. al. v. EDGARDO ANGARA, et. al.
FACTS: Respondent Rizalino Navarro, who is the former Secretary of The Department of Trade and
Industry, represented the Philippines and signed in Morocco the Final Act Embodying the Results of the
Uruguay Round of Multilateral Negotiations. By signing such, Navarro, on behalf of the Philippines, agreed
to submit the WTO Agreement a view to seek approval of the Agreement in accordance with certain
procedures and to adopt the Ministerial Declarations and Decisions. The Philippine Senate then received
a letter from the President of the Philippines, stating among others that "the Uruguay Round Final Act is
hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution."
The President of the Philippines certified the necessity of the immediate adoption of a resolution
called "Concurring in the Ratification of the Agreement Establishing the World Trade Organization." The
Philippine Senate then adopted Resolution No. 97 which "Resolved and concurred the ratification by the
President of the Philippines of the Agreement Establishing the World Trade Organization." The WTO
Agreement ratified is composed of the Agreement Proper and "the associated legal instruments included
in Annexes one, two, and three of that Agreement which are integral parts thereof." On the other hand,
the Final Act signed by Navarro embodies not only the WTO Agreement but also (1) the Ministerial
Declarations and Decisions and (2) the Understanding on Commitments in Financial Services.
Meanwhile, the other senators who participated in the deliberations and voting for the
ratification filed a petition questioning the constitutionality of the said legislative act. They contend that
the same is violative of Sec. 19, Article II, and Secs. 10 and 12, Article XII of the Constitution, which
provisions provide for a self-reliant and independent national economy controlled by Filipinos, granting
preference to qualified Filipinos in conferring rights, privileges, and concessions, and regulating foreign
investments in the country.
The provision that was emphasized by petitioners as violative of the Filipino First Policy in the
Constitution is paragraph 4, Art. 3 of the said agreement, which states that ‘The products of the territory
of any contracting party imported into the territory of any other contracting party shall be accorded
treatment no less favorable than that accorded to like products of national origin in respect of laws,
regulations and requirements.’
Petitioners also submit that paragraph 1, Article 34 of the General Provisions and Basic Principles
of the Agreement on Trade-Related Aspects of Intellectual Property Rights intrudes on the power of the
Supreme Court to promulgate rules concerning pleading, practice and procedures because it imposes on
member-states to provide for a rule of disputable presumption against defendants who are charged of
infringing a patented process when the latter is new and there is a substantial likelihood that the patented
process was used to produce the product.
Finally, petitioners allege that the Senate concurrence in the WTO Agreement and some of its annexes is
defective and insufficient and thus constituted abuse of discretion. They contend that the second letter
of the President to the Senate which enumerated what constitutes the Final Act should have been the
subject of concurrence of the Senate.
ISSUE: WON the provisions of the WTO Agreement contravene Section 19, Article II and Section 10 & 12,
Article XII of the Constitution
RULING: No. The Constitution has provisions that allow the Senate to ratify the WTO agreement, as such
is not self-executing. It merely guides in the exercise of judicial review and in making laws. It also did not
intend to pursue an isolationist policy.
 Secs. 10 and 12 of Article XII should be read and understood in relation to the other sections in
said article, especially Sec. 1 and 13, which highlight a more equitable distribution of opportunities,
income and wealth, a sustained increase in the amount of goods and services, and an expanding
productivity as the key to raising the quality of life. It did not shut out foreign investments, goods and
services in the development of the Philippine economy. It also 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.
The basic principles underlying the WTO Agreement recognize the need of developing countries
with weak economies like the Philippines to share in the growth in international trade commensurate with
the needs of their economic development. The WTO itself has built-in advantages to protect weak and
developing economies such as the right to equal voting, to withdraw, a lesser reduction on domestic
support for agricultural products as compared to developed countries, and more, as decisions are made
on the basis of sovereign equality, with each member’s vote equal in weight. Considering such, poor
countries can protect their common interests more effectively through the WTO than through one-on-
one negotiations with developed countries. Within the WTO, developing countries can form powerful
bonds to push their economic agenda more decisively than outside the Organization.
6) G.R. No. 151445 (April 11, 2002)
ARTHUR D. LIM, et.al., vs. HONORABLE EXECUTIVE SECRETARY, et. al.

FACTS: In January 2002, personnel from the armed forces of the United States of America started arriving
in Mindanao to take part, in conjunction with the Philippine military, in "Balikatan 02-1.”, pursuant to the
Visiting Forces Agreement (VFA) signed on 1999.

These so-called "Balikatan" exercises are the largest combined training operations involving
Filipino and American troops. In theory, they are a simulation of joint military maneuvers pursuant to the
Mutual Defense Treaty (MDT), a bilateral defense agreement entered into by the Philippines and the
United States in 1951.

Petitioners Arthur D. Lim and Paulino P. Ersando filed this Petition for Certiorari and Prohibition,
in their capacities as citizens, lawyers and taxpayers, attacking the constitutionality of the joint exercise.
Subsequently, both party-Iist organizations, the SANLAKAS and PARTIDO NG MANGGAGAWA, also filed a
Petition-in-intervention claiming that certain members of their organization are residents of Zamboanga
and Sulu, and hence will be directly affected by the operations being conducted in Mindanao.

ISSUE: Whether "Balikatan 02-1" is covered by the Visiting Forces Agreement.

RULING: Both Petitions are dismissed.

The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the
exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of
undertakings subject only to the approval of the Philippine government. The United States personnel must
"abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any
political activity." All other activities, in other words, are fair game.

The Article 31 and 32 of the Vienna Convention on the Law of Treaties, which governs the
interpretations of international agreements is clear that the cardinal rule of interpretation must involve
an examination of the text, which is presumed to verbalize the parties' intentions.

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of
the word 'activities" arose from accident. In our view, it was deliberately made that way to give both
parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine
territory for purposes other than military. Under these auspices, the VFA gives legitimacy to the current
Balikatan exercises. It is only logical to assume that 'Balikatan 02-1," a "mutual anti- terrorism advising,
assisting and training exercise," falls under the allowable activities in the context of the agreement.

From the facts obtaining, the Court found that the holding of "Balikatan 02-1" joint military
exercise has not intruded into that penumbra of error that would otherwise call for correction on our part.
In other words, respondents in the case at bar have not committed grave abuse of discretion amounting
to lack or excess of jurisdiction.
7) 75 Phil. 563 (December 19, 1945)
TOMOYUKI YAMASHITA v. WILHELM D. STYER
FACTS: Tomoyuki Yamashita, commander general of the 14th army group of the Japanese Imperial Army
in the Philippines, was charged before an American Military Commission with the most monstrous crimes
ever committed against the American and Filipino people. Such include massacre and extermination of
unarmed noncombatant civilians by cruel and brutal means, including bayoneting of children and raping
of young girls, as well as devastation and destruction of public, or private, and religious property for no
other motive than pillage and hatred.
He filed a petition for habeas corpus and prohibition against Lt. Gen. Wilhelm D. Styer, the
Commanding General of the United States Army Forces, Western Pacific. It is alleged therein that
petitioner after his surrender became a prisoner of war of the United States of America but was later
removed from such status and placed in confinement as an accused war criminal charged before an
American Military Commission constituted by respondent Lieutenant General Styer; and he now asks that
he be reinstated to his former status as prisoner of war, and that the Military Commission be prohibited
from further trying him, upon the following grounds:
(1) That the Military Commission was not duly constituted, and, therefore, it is without
jurisdiction; (2) That the Philippines cannot be considered as an occupied territory, and the Military
Commission cannot exercise jurisdiction therein; (3) That Spain, the "protecting power" of Japan, has not
been given notice of the implementing trial against petitioner, contrary to the provisions of the Geneva
Convention of July 27, 1892, and therefore, the Military Commission has no jurisdiction to try the
petitioner; (4) That there is against the petitioner no charge of an offense against the laws of war; and (5)
That the rules of procedure and evidence under which the Military Commission purports to be acting
denied the petitioner a fair trial.
ISSUES:
(1) WON the petitions for habeas corpus and prohibition be granted in this case
(2) WON the Military Commission was validly constituted by respondent, therefore having jurisdiction
over the war crimes
RULING:
(1) No. The petition for habeas corpus is untenable. It seeks no discharge of petitioner from confinement
but merely his restoration to his former status as a prisoner of war. The relative difference as to the
degree of confinement in such cases is a matter of military measure, disciplinary in character, which
is beyond the jurisdiction of civil courts. Neither may the petition for prohibition prosper against Lt.
Gen. Wilhelm D. Styer.

The military commission stated by respondent is not made party respondent in this case, and
although it may be acting, as alleged, without jurisdiction, no order may be issued in these case
proceedings requiring it to refrain from trying the petitioner. Furthermore, the Supreme Court has no
jurisdiction to entertain the petition even if the commission be joined as respondent. As said in
Raquiza vs. Bradford ". . . an attempt of our civil courts to exercise jurisdiction over the United States
Army before such period (state of war) expires, would be considered as a violation of this country's
faith, which this Court should not be the last to keep and uphold."
(2) Yes. In the language of Cowles, a Military Commission "has jurisdiction so long as a technical state of
war continues. This includes the period of an armistice, or military occupation, up to the effective date
of a treaty agreement." (Cowles, Trial of War Criminals by Military Tribunals, American Bar Association
Journal, June, 1944.)
In the case at hand, "the single inquiry, the test, is jurisdiction. That being established, the habeas
corpus must be denied and the petitioner discharged." (In re Grimley, 137 U.S., 147; 11 Sup. Ct., 54; 34
La. ed., 636.) Following this rule, the Military Commission has been validly constituted and it has
jurisdiction both over the person of the petitioner and over the offenses with which he is charged and
since the power to create a Military Commission is an aspect of waging war, Military Commanders have
that power unless expressly withdrawn from them.
The Military Commission thus duly constituted has jurisdiction both over the person of the petitioner
and over the offenses with which he is charged. It has jurisdiction over the person of the petitioner by
reason of his having fallen into the hands of the United States Army Forces. Under paragraph 347 of the
Rules of the Land Warfare, "the commanders ordering the commission of such acts, or under whose
authority they are committed by their troops, may be punished by the belligerent into whose hands they
may fall."
Additionally, the Supreme Court of the United States said: “…by the Articles of War, and especially
Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals
shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress,
in addition to making rules for the government of our Armed Forces, has thus exercised its authority to
define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the
jurisdiction of military commissions to try persons and offenses which, according to the rules and precepts
of the law of nations, and more particularly the law of war, are cognizable by such tribunals.” It is
also maintained that "the Military Commission . . . shall have jurisdiction over all of Japan and other areas
occupied by the armed forces commanded by the Commander in Chief, United States Army Forces,
Pacific", as according to the Regulations Governing the Trial of War Criminals in the Pacific.
8) 81 Phil. 435 (August 27, 1948)
REMES KOOKOORITCHKIN v. THE SOLICITOR GENERAL
FACTS: Eremes Kookooritchkin applied for a Philippine citizenship naturalization under the provisions of
Commonwealth Act 473, as amended by Act 535. The records show that in 1941, he filed his petition for
naturalization supported by the affidavits of former Judge Jaime M. Reyes and Dr. Salvador Mariano, both
residents of Camarines Sur. In the preceding year, he filed his declaration of intention to become a citizen
of this country. Notice of the hearing was published as required by law. It was established at the hearing
that the petitioner is a native-born Russian, that he grew up as a citizen of the defunct Imperial Russian
Government under the Czars, and that World War I found him in the military service of this Government.
In 1915, he volunteered for the Imperial Russian navy and was sent to the Navy Aviation School.
He fought with the Allies in the Baltic Sea, was later transferred to the eastern front in Poland, and much
later was sent as a navy flier to Asia Minor. In the latter part of the war, but before the Russian
capitulation, he was transferred to the British Air Force under which he served for fourteen months.
When the revolution broke out in Russia in 1917, he joined the White Russian Army at Vladivostok
and fought against the Bolsheviks until 1922 when the White Russian Army was overwhelmed by the
Bolsheviks. As he refused to join the Bolshevik regime, he fled by sea from Vladivostok to Shanghai and
from this Chinese port he found his way to Manila, arriving at this port as a member of a group of White
Russians under Admiral Stark in 1923. He stayed in Manila for about seven months, then moved to
Olongapo, Zambales, where he resided for about a year, and from this place he went to Iriga, Camarines
Sur, where he established his permanent residence since May, 1925. He has remained a resident of this
municipality, except for a brief period from 1942 to July, 1945, when by reason of his underground
activities he roamed mountains of Caramoan as a guerrilla officer. After liberation, he returned to Iriga
where again he resided once more.
He married a Filipino by the name of Concepcion Segovia, with whom he has one son named
Ronald Kookooritchkin. He is also a shop superintendent of A. L. Ammen Transportation Company, with
about eighty Filipino employees working under him and receives an annual salary of P13,200 with free
quarters and house allowance. He also owns stocks and bonds of this and other companies. He also has
the ability to speak and write in English and the Bicol dialect, has a good moral character, and believes in
the principles underlying the Philippine Constitution. He has never been accused of any crime, and he has
always conducted himself in a proper and irreproachable manner during his entire period of residence in
Camarines Sur, in his relations with the constituted authorities as well as with the community.
The applicant of his own volition chose to fight along with the guerrilla movement and fought the
enemy in several encounters in the Province of Camarines Sur. He belonged to the guerrilla outfit of
Colonel Padua with rank of major. Upon the arrival of the forces of liberation, he was attached to the
American Army from April to June 1945. Furthermore, although a Russian by birth, he is not a citizen of
Soviet Russia. He disclaims allegiance to the present Communist Government of Russia.
He is, therefore, a stateless refugee in this country, belonging to no State, much less to the present
Government of the land of his birth to which he is uncompromisingly opposed. He is not against organized
government or affiliated with any association which upholds and teaches doctrine opposing all organized
governments. He does not believe in the necessity or propriety of violence, personal assault or
assassination for the success or predominance of his ideas. Neither is he a polygamist or a believer in the
practice of polygamy. He is not suffering from any mental alienation or incurable contagious disease.
ISSUES:
(1) WON the lower court erred in not finding that the declaration of intention to become a Filipino
citizen filed by appellee is invalid and insufficient as a basis for the petition of naturalization
(2) WON the lower court erred (a) in not finding that appellee has not established a legal residence in
the Philippines, and (b) in not finding that he cannot speak and write any of the principal Philippine
languages
(3) WON the lower court erred in finding appellee stateless and not a Russian citizen and in not finding
that he has failed to establish that he is not disqualified for Philippine citizenship under section 4
(h) of the Revised Naturalization Law
RULING:
(1) Yes. Petitioner's declaration is valid under section 5 of the Naturalization Law, which states that “No
declaration shall be valid until entry for permanent residence has been established and a certificate
showing the date, place and manner of his arrival has been issued.” The records of the Bureau of
Justice, where the declarations of intention to become a Filipino citizen were filed, had been lost or
destroyed during the battle for the liberation of Manila, and the certificate alluded to has not been
reconstituted. Appellant's contention that attachment of the certificate of arrival is essential to the
validity of a declaration finds no support in the wordings of the law, as the above-quoted section 5 of
Commonwealth Act no. 473 uses the words "has been issued.”
The office of the President has also certified that it is a matter of record that petitioner was one
of the Russian refugees who entered the Philippines under the command of Admiral Stark, the facts
regarding arrival of the latter fleet being a matter of common knowledge, since it was widely publicized
in the newspapers at the time, of which this Court may properly take judicial notice under section 5 of
Rule 123. In addition, the undisputed fact that the petitioner has been continuously residing in the
Philippines for about 25 years, without having been molested by the authorities, who are presumed to
have been regularly performing their duties and would have arrested petitioner if his residence is illegal,
can be taken as evidence that he is enjoying permanent residence legally. That a certificate of arrival has
been issued is a fact that should be accepted upon the petitioner's undisputed statement in his declaration
of July, 1940, that the certificate cannot be supposed that the receiving official would have accepted the
declaration without the certificate mentioned therein as attached thereto.
Such are all considered in following section 5 of the Naturalization Law, despite the failure to
reconstitute the certificate of arrival notwithstanding. What an unreconstituted document intended to
prove may be shown by other competent evidence.
(2) Yes. The first question has already been answered above. As for the second question, the lower court
made the finding of fact that applicant speaks and writes English and Bicol and there seems to be no
question about the competency of the judge who made the pronouncement, because he has shown
by the appealed resolution and by his questions propounded to appellee, that he has command of
both English and Bicol. However, as regards to legal basis, the law has not set a specific standard of
the principal Philippine languages. All facts considered though, there is a reason to believe that the
lower court's pronouncement is well taken especially since appellee, with his smattering of Bicol, was
able to get along with his Bicol comrades in the hazardous life of the resistance movement, his
knowledge of the language satisfies the requirement of the law. Such is also backed up with
circumstantial evidence from which it can be concluded that petitioner ought to know also how to
write Bicol.
(3) No. Appellee's testimony, besides being uncontradicted, is supported by the well-known fact that the
ruthlessness of modern dictatorship has scattered a large number of stateless refugees or displaced
persons, without country and without flag, throughout the world. The tyrannical intolerance of said
dictatorships toward all opposition induced them to resort to beastly oppression, concentration
camps and blood purges, and it is only natural that the not-so-fortunate ones who were able to escape
to foreign countries should feel the loss of all bonds of attachment to the hells which were formerly
their fatherland's. Petitioner belongs to that group of stateless refugees. It would be fastidious to
require further evidence of petitioner's claim that he is stateless than his testimony that he owes no
allegiance to the Russian Communist Government and, is because he has been at war with it, he fled
from Russia to permanently reside in the Philippines. After all facts provided from his background are
considered, and after showing his resolution to retain the happiness he found in our political system
to the extent of refusing to claim Russian citizenship even to secure his release from the Japanese and
of casting his lot with that of our people by joining the fortunes and misfortunes of our guerrillas, it
would be beyond comprehension to support that the petitioner could feel any bond of attachment to
the Soviet dictatorship.
As for the last issue, it need not be discussed, it being only a sequel of the other assignments and
has necessarily been disposed of in their discussion. The appealed resolution is affirmed.
9) I.C.J. Reports 1969, p.3 (February 20, 1969)
North Sea Continental Shelf Case (Federal Republic of Germany v. Denmark; and
Federal Republic of Germany v. Netherlands)
FACTS: The dispute pertained to the delimitations of the continental shelf between Germany and
Denmark, and Germany and the Netherlands. The contention of Denmark and the Netherlands was to
effect the subject North Sea boundaries in accordance with the principle of equidistance or equidistance
method under Article 6 of the 1958 Geneva Convention on the Continental Shelf. The Federal Republic of
Germany, on the other hand, argued the subject areas should be apportioned into just and equitable
shares following the principle of apportionment of the continental shelf. The proceedings were instituted
on February 20, 1967 before the Court as the parties had been unable to agree on the prolongation of the
partial boundaries in the North Sea, seeking for the applicable principles and rules of international law.
The equidistance principle draws a boundary through an “equidistance line” that leaves to each
of the parties concerned all portions of the continental shelf that are nearer to a point on its own coast
than they are to any point on the coast of the other party. The insistence of the Denmark and the
Netherlands for the application of the equidistance method raised the question if Germany was under
legal obligation to accept the application of such principle, contending 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.
ISSUE: Whether or not the equidistance principle is binding on all parties concerned and be regarded as a
rule of customary international law.
RULING: The Court rejected the contention that the subject delimitations had to be carried out in
accordance with the equidistance principle. It ruled that the parties were under no legal obligation to
apply the equidistance method as it had not crystallized into a rule of general or customary international
law and that no other single method of delimitation was in all circumstances obligatory.
With regard to the 1958 Geneva Convention on the Continental Shelf, it was in force for
any individual State which signed and ratified it. Denmark and the Netherlands were parties to it, signing
and ratifying the same. But Germany, although a signatory to the Convention, had never ratified it and
was consequently not a party. The Court also 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.
The Court declared that the delimitation was to be effected by agreement in accordance with
equitable principles and taking account of all relevant circumstances, in such a way as to leave as much as
possible to each Party all those parts of the continental shelf that constituted a natural prolongation of its
land territory, without encroachment on the natural prolongation of the land territory of the other; and
that, if such delimitation produced overlapping areas, they were to be divided between the parties in
agreed proportions, or, failing agreement, equally, unless they decided on a regime of joint jurisdiction,
user, or exploitation.
10) [1966] ICJ Rep 6 (July 18, 1966)
SOUTH WEST AFRICA CASES (2nd phase) (Ethiopia v. South Africa; Liberia v. South Africa)

FACTS: The Empire of Ethiopia and Republic of Liberia filed separate petitions in 1960 clarifying the
interpretation and application of the Mandate for South West Africa, and the duties and performance of
South Africa as a Mandatory. The Court consolidated the cases in 1961 considering the similarity in issues
and interest.

In 1920, the territory of Southwest Africa, which used to be a German Colony, was given to South
Africa under the League of Nations covenant.

Ethiopia and Liberia, both members of the former League of the Nations, alleged that respondent
Republic of South Africa committed several violations of the League of Nations Mandate for South West
Africa, particularly its paragraph 1 of Article 7 which provides that the mandate can only be modified with
the consent of the Council of the League of Nations.

The mandates system, formally instituted by Article 22 of the Covenant of the League of Nations,
provides that former enemy colonies which had become independent from their previous colonizers after
the war but were still unable to stand alone should be entrusted to advanced nations called Mandatories.
The mandate had three categories: A, B and C. In this case, the Mandate for SouthWest Africa was
categorized under C. South Africa contended that the Mandate does not exist and objected to the Court’s
jurisdiction.

In Dec 1962, the Court rejected the argument of South Africa and upheld its jurisdiction. Oral
arguments were conducted from March 15 to Nov 29, 1965. Judgment on the second phase was made on
July 18, 1966.

ISSUE: Whether Applicants, as individual States and former members of the League, have any legal right
or interest in contesting the conduct provisions of the mandate, or the interpretation or application of the
Dec 17, 1920 Mandate for South West Africa

HELD: No. The various mandatories have no direct obligation towards the other members for the league.
By an equal vote of 7-7, the Court rejected the claims of the Empire of Ethiopia and the Republic of Liberia
saying that the two States failed to establish any legal right or interest in the subject matter of their claims.
In order to determine the rights and obligations of the Parties relative to the Mandate, the Court said it
had to consider the time of institution of the mandate. The Inquiry, it said, must proceed principally based
on the texts of the instruments and provisions during that period.

Article 2 of the Covenant provided that the "action of the League under the Covenant shall be
effected through the instrumentality of an Assembly and of a Council, with a permanent Secretariat”
which means individual member States could not themselves act differently relative to League matters
unless it was otherwise provided by an article of the Covenant. Meanwhile under Article 22 of the
covenant, Mandatories shall serve as agents of the League of the Nations and not of each member
individually.
 Ethiopia and Liberia argued that they derived a legal right or interest under the principle of
“sacred trust” which provides that a sacred thrust of civilization have an interest in seeing how the conduct
is being implemented. The Court, however, concluded that an interest should have a legal character and
must be more than a humanitarian or moral ideal.

The Court ruled that individual member states can participate in the administrative process
individually “only through their participation in the activities of the organs by means of which the League
was entitled to function.” Liberia and Ethiopia had no right of direct intervention when it comes to their
mandatories as the prerogative belongs to the League of the Nations. Their rights, the court said, can be
drawn from the said instruments only if such rights were conferred to them unequivocally.
11) [1950] ICJ Rep 266 (November 20, 1950)
ASYLUM CASE (Columbia v. Peru)
FACTS: On October 3rd, 1948, a military rebellion broke out in Peru; however, it was suppressed
immediately. On the following day, a decree was published charging a political party, the American
People's Revolutionary Party, with having prepared and directed the rebellion. The head of the Party,
Victor Raúl Haya de la Torre, was denounced as being responsible. With other members of the party, he
was prosecuted on a charge of military rebellion. Summons were published ordering him to appear before
the Examining Magistrate. On January 3rd, 1949, he was granted asylum in the Colombian Embassy in
Lima. Meanwhile, on October 27th, 1948, a Military Junta had assumed power in Peru and had published
a decree providing for the Courts-martial for summary judgments in cases of rebellion, sedition and
rioting; but this decree was not applied to the legal proceedings against Haya de la Torre and others, and
it had been declared before the Court that said decree was not applicable to the said proceedings.
Furthermore, during the period from October 4th to the beginning of February, 1949, Peru was in a state
of siege.
On January 4th, 1949, the Colombian Ambassador in Lima informed the Peruvian Government of
the asylum granted to Haya de la Torre, and asked that a safe-conduct be issued to enable the refugee to
leave the country. He further stated that the refugee had been qualified as a political refugee. The
Peruvian Government disputed this qualification and refused to grant a safe-conduct. A diplomatic
correspondence ensued which terminated an Act by which the two Governments agreed to submit the
case to the International Court of Justice on August 31st, 1949.
Colombia maintained before the Court that, according to the Convention in force, which were the
Bolivarian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum the Montevideo
Convention of 1933 on Political Asylum - and according to American International Law, the state was
entitled to qualify the nature of the offence for the purposes of the asylum. In this connection, the Court
considered that, if the qualification in question were provisional, there could be no doubt on that point:
the diplomatic representative would consider whether the required conditions had been satisfied, he
would pronounce his opinion and if that opinion were contested, a controversy would then arise which
might be settled according to the methods provided by the Parties. However, the result was that Colombia
claimed the right of unilateral and definitive qualification binding upon Peru. The first of the Treaties which
it invoked - the Bolivarian Agreement, which is the Treaty on extradition - confined itself in one Article to
recognizing the institution of asylum in accordance with the principles of international law. But these
principles do not entail the right of unilateral qualification.
On the other hand, when the Bolivarian Agreement laid down rules for extradition, it was not
possible to deduce any conclusions from them concerning diplomatic asylum. In the case of extradition,
the refugee was on the territory of the State of refuge: if asylum were granted to him, such decision would
not derogate from the sovereignty of the States in which the offence was committed. On the contrary, in
the aspect of diplomatic asylum, the refugee was on the territory of the State in which he had committed
the offence. Thus, the decision to grant asylum derogated from the sovereignty of the territorial State and
removed the offender from the jurisdiction of that State.
As for the second treaty invoked by Colombia, the Havana Convention, did not recognize the right
of unilateral qualification either explicitly or implicitly, while the Convention of Montevideo had not been
ratified by Peru and could be invoked against that country. Finally, in regards to American international
law, Colombia had not proved the existence, either regionally or locally, of a constant and uniform practice
of unilateral qualification as a right of the State of refuge and an obligation upon the territorial State.
 The facts submitted to the Court disclosed too much contradiction and fluctuation to make it
possible to discern therein a usage peculiar to Latin America and accepted as law. It therefore followed
that Colombia, as the State granting asylum, was not competent to qualify the nature of the offence by a
unilateral and definitive decision binding on Peru.
Colombia also maintained that Peru was under the obligation to issue a safe-conduct to enable
the refugee to leave the country in safety. The Court, setting aside for the time being the question of
whether asylum was regularly granted and maintained, noted that the clause in the Havana Convention
which provided guaranties for the refugee was applicable solely to a case where the territorial State
demanded the departure of the refugee from its territory. It was only after such a demand that the
diplomatic Agent who granted asylum could, in turn, require a safe-conduct. There was, of course, a
practice according to which the diplomatic Agent immediately requested a safe-conduct, which was
granted to him but this practice, which was to be explained by reasons of expediency, laid no obligation
upon the territorial State.
In the case at hand, Peru had not demanded the departure of the refugee and was therefore not
bound to deliver a safe-conduct. In its counter-claim, Peru had asked the Court to declare that asylum had
been granted to Haya de la Torre in violation of the Havana Convention, first, because Haya de la Torre
was accused, not of a political offence but of a common crime and, secondly, because the urgency which
was required under the Havana Convention in order to justify asylum was absent in that case.
ISSUES:
(1) Whether or not the Colombian government is competent, as the country that grants asylum, to
unilaterally qualify the offence for the purpose of asylum under treaty law and international law
(2) Whether or not Colombia violated Article 1 and 2 (2) of the Convention on Asylum of 1928
(hereinafter called the Havana Convention) when it granted asylum
RULING:
(1) No. The court stated that in the normal course of granting diplomatic asylum, a diplomatic
representative has the competence to make a provisional qualification of the offence (for example,
as a political offence) and the territorial State has the right to give consent to this qualification. In the
Torre’s case, Colombia has asserted, as the State granting asylum, that it is competent to qualify the
nature of the offence in a unilateral and definitive manner that is binding on Peru. Considering what
was brought up, the Court held that there was no expressed or implied right of unilateral and
definitive qualification of the State that grants asylum under the Havana Convention or relevant
principles of international law. The Montevideo Convention of 1933, which accepts the right of
unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was not
ratified by Peru. Such was not binding on Peru and considering the low numbers of ratifications, the
provisions of the latter Convention cannot be said to reflect customary international law.
Colombia also argued that regional or local customs support the qualification. The court held that the
burden of proof on the existence of an alleged customary law rests with the party making the allegation.
The party must prove that it is in accordance with a (1) constant and uniform usage (2) practiced by the
States in question, and that this usage is (3) the expression of a right appertaining to the State granting
asylum (Colombia) and (4) a duty incumbent on the territorial State. This follows from Article 38 of the
Statute of the Court, which refers to international custom “as evidence of a general practice accepted as
law.
 In the case at bar, Colombia did not establish the existence of a regional custom because it failed
to prove consistent and uniform usage of the alleged custom by relevant States. The fluctuations and
contradictions in State practice did not allow for the uniform usage. The court also reiterated that the fact
that a particular State practice was followed because of political expediency and not because of opinion
juris is detrimental to the formation of a customary law. It even held that even if Colombia could prove
that such a regional custom existed, it would not be binding on Peru, because Peru “far from having by its
attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo
Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the
offence [as “political” in nature] in matters of diplomatic asylum.”
(2) Yes. The grant of asylum is not an instantaneous act which terminates with the admission, at a given
moment of a refugee to an embassy or a legation. Any grant of asylum results in, and in consequence,
logically implies, a state of protection; the asylum is granted as long as the continued presence of the
refugee in the embassy prolongs this protection. Article 1 of the Havana Convention states that “It is
not permissible for States to grant asylum… to persons accused or condemned for common crimes…
(such persons) shall be surrendered upon request of the local government.” In other words, the
person-seeking asylum must not be accused of a common crime (ex. murder). The accusations that
are relevant are those made before the granting of asylum. Torre’s accusation related to a military
rebellion, which the court concluded was not a common crime and as such the granting of asylum
complied with Article 1 of the Convention.
Meanwhile, Article 2 (2) of the Havana Convention states that “Asylum granted to political
offenders in legations, warships, military camps or military aircraft, shall be respected to the extent in
which allowed, as a right or through humanitarian toleration, by the usages, the conventions or the laws
of the country in which granted and in accordance with the following provisions: First: Asylum may not be
granted except in urgent cases and for the period of time strictly indispensable for the person who has
sought asylum to ensure in some other way his safety.” An essential pre-requisite for the granting of
asylum is the urgency or, in other words, the presence of “an imminent or persistence of a danger for the
person of the refugee”. The court held that the facts of the case, including the 3 months that passed
between the rebellion and the time when asylum was sought, did not establish the urgency criteria in this
case; that it is inconceivable that the Havana Convention could have intended the term “urgent cases” to
include the danger of regular prosecution to which the citizens of any country lay themselves open by
attacking the institutions of that country.
In other words, Torre was accused of a crime but he could not be tried in a court because Colombia
granted him asylum. The court held that “protection from the operation of regular legal proceedings” was
not justified under diplomatic asylum. It held that In the case of diplomatic asylum, the refugee is within
the territory of the State. A decision to grant diplomatic asylum involves a derogation from the sovereignty
of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an
intervention in matters which are exclusively within the competence of that State. Such a derogation from
territorial sovereignty cannot be recognized unless its legal basis is established in each particular case.
An exception to this can occur only if, in the guise of justice, arbitrary action is substituted for the
rule of law. Such would be the case if the administration of justice were corrupted by measures clearly
prompted by political aims. Asylum protects the political offender against any measures of a manifestly
extra-legal character which a Government might take or attempt to take against its political opponents.
Asylum may be granted on “humanitarian grounds to protect political prisoners against the violent and
disorderly action of irresponsible sections of the population.” Torre was not in such a situation at the time
when he sought refuge in the Colombian Embassy at Lima.
12) [1974] ICJ Rep 457 (December 20, 1974)
NUCLEAR TESTS CASE (New Zealand v. France)

FACTS: On May 9, 1973, New Zealand instituted proceedings before the Court against France to enjoin
the latter from conducting French atmospheric nuclear tests in the South Pacific pursuant to General Act
for the Pacific Settlement of International Disputes concluded at Geneva in 1928 and Articles 36 and 37
of the Statute of the Court. France contended that the Court had no jurisdiction over the matter and
requested the removal of the case from the Court’s list. Pending its final decision, the Court ordered,
among others, that France should avoid nuclear tests causing radio-active fall-out on the territory of New
Zealand, but France continued on its series of atmospheric tests. While New Zealand was seeking for a
termination of the French atmospheric nuclear tests in the South Pacific, France, through various letters,
notes, and other public communications, conveyed its intention to cease the conduct of the nuclear tests
as it reached completion of the 1974 series of atmospheric tests. Thus, France moved for the dismissal of
the case.

ISSUE: Whether or not the dispute has ceased to have an object following the unilateral, public
declarations of France.

RULING: The Court found that the claim of New Zealand no longer had any object and there is nothing on
which to give judgment. As the ultimate objective of New Zealand is to obtain termination of the French
atmospheric nuclear tests, it has in effect been accomplished following France’s public statements of its
intention to cease the conduct of such tests.

The Court noted that it is well recognized that declarations made by way of unilateral acts
concerning legal of factual situations may have the effect of creating legal obligations and that nothing in
the nature of a quid pro quo, nor any subsequent acceptance, nor even any reaction from other States is
required for such declaration to take effect. Neither is the question of form decisive. The intention of
being bound is to be ascertained by an interpretation of the act. The binding character of the undertaking
results from the terms of the act and is based on good faith; interested States are entitled to require that
the obligation be respected.

France has conveyed to the world at large, including the Applicant, its intention effectively to
terminate its atmospheric tests. It was bound to assume that other States might take note of these
statements and rely on their being effective. It is true that France has not recognized that it is bound by
any rule of international law to terminate its tests, but this does not affect the legal consequences of the
statements in question; the unilateral undertaking resulting from them cannot be interpreted as having
been made in implicit reliance on an arbitrary power of reconsideration.

Once the Court has found that a State has entered into a commitment concerning its future
conduct, it is not the Court's function to contemplate that it will not comply with it. However, if the basis
of the Judgment were to be affected, the applicant, as in this case the New Zealand, could request an
examination of the situation in accordance with the provisions of the Statute.
 13) [1974] ICJ Rep 253 (December 20, 1974)
NUCLEAR TESTS CASE (Australia v. France)

FACTS: The present case contains a dispute between the Government of Australia and the French
Government concerning the holding of atmospheric tests of nuclear weapons by the latter Government
in the South Pacific Ocean. Prior to the filing of the application instituting proceedings in this case, the
French Government had carried out atmospheric tests of nuclear devices at its Centre d'expérimentations
du Pacifique, in the territory of French Polynesia, in the years 1966, 1967, 1968, 1970, 1971 and 1972. The
main firing site used has been a place called Mururoa which is located some 6,000 km to the east of the
Australian mainland. The French Government had created "Prohibited Zones" for aircraft and "Dangerous
Zones" for aircraft and shipping, in order to exclude aircraft and shipping from the area of the tests centre.
Such "zones" have been put into effect during the period of testing in each year in which tests have been
carried out.
As the United Nations Scientific Committee on the Effects of Atomic Radiation has recorded in its
successive reports to the General Assembly, the testing of nuclear devices in the atmosphere has released
measurable quantities of radioactive matter into the atmosphere and its consequent dissipation in varying
degrees, throughout the world. It is asserted by Australia that the French atmospheric tests have caused
some fall-out of this kind to be deposited on Australian territory; France has maintained in particular that
the radioactive matter produced by its tests has been so infinitesimal that it may be regarded as negligible,
and that such fall-out on Australian territory does not constitute a danger to the health of the Australian
population.
The Government of Australia then informed the Court that the French Government should avoid
initiating further nuclear tests which would cause the deposit of radio-active fall-out in Australian
territory, wherein two further series of atmospheric tests, in the months of July and August 1973 and June
to September 1974, had actually been carried out at the Centre d'expérimentations du Pacifique. The
letters also stated that such fall-out had been recorded on Australian territory which, according to the
Australian Government, was clearly attributable to these tests, and that "in the opinion of the
Government of Australia the conduct of the French Government constitutes a clear and deliberate breach
of the Order of the Court.”
Australia and New Zealand then each instituted proceedings against France concerning tests of
nuclear weapons which France proposed to carry out in the atmosphere in the South Pacific region. France
stated that the Court lacked jurisdiction to handle such a case and asked that it refrain from appearing at
the public hearings or filing any pleadings. It also noted that it had not intended to appoint an agent,
ultimately requesting the Court to remove the case from its list.
ISSUES:
(1) WON the Court has jurisdiction in the present case
(2) WON the claim of Australia against France was valid

RULING:
(1) Yes. Having now had the opportunity of examining the request in the light of the subsequent proceedings,
the Court finds that the present case is not one in which the procedure of summary removal from the list
would be appropriate.
 The application finds the jurisdiction of the Court on the following basis:

i. Article 17 of the General Act for the Pacific Settlement of International Disputes, 1928, read
together with Articles 36 (1) and 37 of the Statute of the Court. Australia and the French
Republic both acceded to the General Act on 21 May 1931 . . .
ii. Alternatively, Article 36 (2) of the Statute of the Court. Australia and the French Republic have
both made declarations thereunder."
It should be emphasized that the Court possesses an inherent jurisdiction enabling it to take such
action as may be required, in order to ensure that the exercise of its jurisdiction over the merits, if and
when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all
matters in dispute, to ensure the observance of the "inherent limitations on the exercise of the judicial
function" of the Court, and to "maintain its judicial character" (Northern Cameroons, Judgment, I.C.J.
Reports 1963, at p. 29). Such inherent jurisdiction, on the basis of which the Court is fully empowered to
make whatever findings may be necessary for the purposes just indicated, derives from the mere
existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in
order that its basic judicial functions may be safeguarded. And although the Applicant has used in its
application the traditional formula of asking the Court "to adjudge and declare", the Court must ascertain
the true object and purpose of the claim and in doing so it cannot confine itself to the ordinary meaning
of the words used.

(2) No. In the present case, it is evident that the main problem of the case is the atmospheric nuclear tests
conducted by France in the South Pacific region, and that the original and ultimate objective of the
Applicant was and has remained to obtain a termination of those tests; thus its claim cannot be regarded
as being a claim for a declaratory judgment. For context, 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 puts on
on the declaration of a character of a legal undertaking, making 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, a quidpro quo nor any subsequent acceptance of the
declaration, nor even any reply or reaction from other States, is not 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.
Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position
in relation to a particular matter with the intention of being bound---the intention is to be ascertained by
interpretation of the act. When States make statements by which their freedom of action is to be limited,
a restrictive interpretation is called for. In regards to the question of form, it should be observed that this
is not a domain in which international law imposes any special or strict requirements. Whether a
statement is made orally or in writing makes no essential difference, for such statements made in
particular circumstances may create commitments in international law, which does not require that they
should be couched in written form. Thus the question of form is not decisive.
One of the basic principles governing the creation and performance of legal obligations, whatever
their source, is the principle of good faith. Trust and confidence are inherent in international cooperation.
 Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the
binding character of an international obligation assumed by unilateral declaration. Thus, interested States
may take cognizance of unilateral declarations and place confidence in them, and are entitled to require
that the obligation thus created be respected.
In the case at bar, the unilateral statements of the French authorities were made outside the Court,
publicly and erga omnes, even though it was firstly communicated to the Government of Australia. In
announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed
to the world at large, including the Applicant, its intention effectively to terminate these tests. It was
bound to assume that other States might take note of these statements and rely on their effectivity of
such. 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. 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 general nature and characteristics
of these statements are decisive for the evaluation of the legal implications, and it is to the interpretation
of the statements that the Court must now proceed. The Court is then entitled to presume, at the outset,
that these statements were not made in vacuo, but in relation to the tests which constitute the very object
of the present proceedings, although France has opted to not make any appearances in the proceedings
of the case. In relation to this, Australia has recognized the possibility of the dispute being resolved by a
unilateral declaration, of the kind specified above, on the part of France, and its conclusion that in fact no
"commitment" or "firm, explicit and binding undertaking" had been given is based on the view that the
assurance is not absolute in its terms.

With those in mind, in regards to the request of Australia and New Zealand in having France avoid
nuclear tests causing radioactive fall-out on their respective territories, the Court finds that no question
of damages arises in the present case, since no such claim has been raised by the Applicant either prior to
or during the proceedings, and the original and ultimate objective of Applicant has been to seek protection
"against any future atmospheric tests.”, which no longer had any good cause and that it was therefore
not called upon to give any decision thereon. In so doing, the Court based itself on the conclusion that the
objective of Australia and New Zealand had been already achieved inasmuch as France, in various public
statements, had announced its intention of carrying out no further atmospheric nuclear tests on the
completion of the 1974 series.
14) [1995] ICJ Rep 288 (September 22, 1995)
Nuclear Tests Case (New Zealand v. France)

FACTS: On August 21, 1995, New Zealand filed a "Request for an Examination of the Situation" in
accordance with paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests case
(New Zealand v. France) after France announced a conduct a final series of eight nuclear weapons
tests in the South Pacific starting in September 1995. New Zealand argued that the conduct of the
proposed nuclear tests will violate the rights of New Zealand and other States under international law
and claimed that it is unlawful for France to conduct such nuclear tests before it has undertaken an
Environmental Impact Assessment according to accepted international standards.

New Zealand contended that the present dispute shall be a continuation and a resumption of the
proceedings of 1974 which was enabled by paragraph 63 of the 1974 judgment and forming part of
the same case. France, on the other hand, argued that a State cannot act unilaterally before the Court
in the absence of any basis in the Statute, pointing out that New Zealand’s request had no basis under
any provision of the Statute and could not thus invoke any that would be capable of justifying its
requested procedure in law.

ISSUE: Whether or not the facts referred to by New Zealand affect the basis of the Court’s 1974
judgment to bring the requested special procedure into operation under paragraph 63 of the judgment
for an examination of the situation in accordance with the provisions of the Statute.

RULING: The Court found that the basis of the 1974 judgment has not been affected, making New
Zealand’s request fall out of the provisions of paragraph 63 of the subject judgment and must
consequently be dismissed. Citing the pertinent portion of the judgment, the Court said the basis of
the 1974 Judgment was consequently France's undertaking not to conduct any further atmospheric
nuclear tests; that it was only, therefore, in the event of a resumption of nuclear tests in the
atmosphere that basis of the judgment would have been affected, which hypothesis has not
materialized in the present case.

Referring, among others, to a statement made by the Prime Minister of New Zealand, the Court
noted that “for purposes of the Application, the New Zealand claim is to be interpreted as applying
only to atmospheric tests, not to any other form of testing, and as applying only to atmospheric tests
so conducted as to give rise to radio-active fall-out on New Zealand territory. Hence, the judgment
dealt exclusively with atmospheric nuclear tests and it is not possible for the Court, in this case, to
take into consideration questions relating to underground nuclear tests. The Court noted, however,
that its Order is without prejudice to the obligations of States to respect and protect the natural
environment, obligations to which bot New Zealand and France have in the present instance
reaffirmed their commitment.
15) [1996] ICJ Rep 226 (July 8, 1996)
LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS: Advisory Opinion

FACTS: On December 15, 1994, the United Nations General Assembly (hereafter known as the General
Assembly) adopted Resolution A/RES/49/75K which requested the International Court of Justice to render
its advisory opinion on the question of following question: Is the threat or use of nuclear weapons in any
circumstances permitted under international law?

By an Order dated February 1, 1995, the Court decided that the States entitled to appear before
it and the United Nations to furnish information on the question. By the same order and within the time-
limit set, the other States may submit to it written comments on the other written statements. Written
statements were filed by the following States: Bosnia and Herze- govina, Burundi, Democratic People's
Republic of Korea, Ecuador, Egypt, Finland, France, Germany, India, Ireland, Islamic Republic of Iran, Italy,
Japan, Lesotho, Malaysia, Marshall Islands, Mexico, Nauru, Netherlands, New Zealand, Qatar, Russian
Federation, Samoa, San Marino, Solomon Islands, Sweden, United Kingdom of Great Britain and Northern
Ireland, and United States of America. In addition, written comments on those written statements were
submitted by the following States: Egypt, Nauru and Solomon Islands. Upon receipt of those statements
and comments, the Registrar communicated the text to all States having taken part in the written
proceedings.
The Court held public sittings and on July 8, 1996 rendered its advisory opinion as regards the questions
and issues raised. The advisory opinion contained 105 sections, including the resolution on whether or
not the court has jurisdiction to provide advisory opinion to such matters, which it decided on the
affirmative citing advisory opinions from Article 65, paragraph 1 of its statute, which provides that, “the
Court may give an advisory opinion on any legal question at the request of whatever body may be
authorized by or in accordance with the Charter of the United Nations to make such a request.”
The Court further added that Article 96, paragraph 1 of the Charter also states that the General Assembly
and Security Council may request the Court to give an advisory opinion on any legal question.
The Court agreed that the question posed by the General Assembly is indeed a legal one, since the court
is asked to rule on the compatibility of the threat or use of nuclear weapons with the relevant principles
and rules of international law.

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

HELD: The Court first decided that the most relevant applicable law that should be used to answer the
question is that relating to the use of force enshrined in the Charter of the United Nations and the law
applicable in armed conflict which regulates the conduct of hostilities, together with any specific treaties
on nuclear weapons that the Court might determine to be relevant. The Court took into account the
unique characteristics of nuclear weapons and in particular their destructive capacity, their capacity to
cause untold human suffering, and their ability to cause damage to generations to come.

The court in addressing the legality or illegality of recourse to nuclear weapons cited Article 2 paragraph
4 of the Charter which provides that the use of force against the territorial integrity or political
independence of another State or in any other manner inconsistent with the purpose of the United
Nations is prohibited. In addition, the Court stated that the prohibition of the use of force is to be
considered in the light of other relevant provisions of the Charter. In Article 51, the Charter recognizes
the inherent right of individual or collective self-defense if an armed attack occurs.
 A further lawful use of force is envisaged in Article 42, whereby the Security Council may take
military enforcement measures in conformity with Chapter VII of the Charter. However, the provisions
referred to did not refer to specific weapons. They apply to any use of force, regardless of the weapons
employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including
nuclear
weapons.

The Court also addressed the question to the laws applicable during armed conflict. It examined
the question put to it in the light of the law applicable in armed conflict proper, i.e., the principles and
rules of humanitarian law applicable in armed conflict, and the law of neutrality. After examining certain
provisions in the Second Hague Declaration of 1899, the Regulations annexed to ‘The Hague convention’”.

The Court did not find any specific prohibition of IV of 1907 or the 1925 Geneva Protocol. The
pattern until now has been for weapons of mass destruction to be declared illegal by specific instrument.
But the Court does not find any specific prohibition recourse to nuclear weapons in treaties expressly
prohibiting the use of certain weapons of mass destruction; and observes that, although, in the last two
decades, a great many negotiations have been conducted regarding nuclear weapons, they have not
resulted in a treaty of general prohibition of the same kind as for bacteriological and chemical weapons.

The Court also examined customary international law to determine whether a prohibition of
threat or use of nuclear weapons as such flows from that source of law. The Court noted that the members
of the international community are profoundly divided on the matter of whether non-recourse to nuclear
weapons over the past 50 years constitutes the expression of an opinio juris. Under these circumstances
the Court did not consider itself able to find that there is such an opinio juris. It pointed out that the
adoption each year by the General Assembly, by a large majority, of resolutions recalling the content of
resolution 1653 (XVI), and requesting the Member States to conclude a convention prohibiting the use of
nuclear weapons in any circumstance, reveals the desire of a very large section of the international
community to take, by a specific and express prohibition of the use of nuclear weapons, a significant step
forward along the road to complete nuclear disarmament. The emergence, as lex lata, of a customary rule
specifically prohibiting the use of nuclear weapons as such is hampered by the continuing tensions
between the nascent opinio juris, on the one hand, and the still strong adherence to the doctrine of
deterrence (in which the right to use those weapons in the exercise of the right to self-defense against an
armed attack threatening the vital security interests of the State is reserved), on
the other.

Not having found a conventional rule of general scope, nor a customary rule specifically
proscribing the threat or use of nuclear weapons per se, the Court then deals with the question whether
recourse to nuclear weapons must be considered as illegal in the light of the principles and rules of
international humanitarian law applicable in armed conflict and of the law of neutrality.

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

The Court replied unanimously that “there is neither customary nor conventional international
law any specific authorization of the threat or use of nuclear weapons.”
In both written and

By 11 votes to three, the Court replied that “there is neither customary nor conventional
international law in any comprehensive and universal prohibition of the threat or use of nuclear weapons
as such”. The Court replied unanimously that “a threat or use of force by means of nuclear weapons that
is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the
requirements of Article 51, is unlawful”

The Court replied unanimously that “a threat or use of nuclear weapons should also be compatible
with the requirements of the international law applicable in armed conflict, particularly those of the
principles and rules of international humanitarian law, as well as with specific obligations under treaties
and other undertakings which expressly deal with nuclear weapons”

“By seven votes to seven, by the President's casting vote, It follows from the above-mentioned
requirements that the threat or use of nuclear weapons would generally be contrary to the rules of
international law applicable in armed conflict, and in particular the principles and rules of humanitarian
law;
However, in view of the current state of international law, and of the elements of fact at its disposal,
the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or
unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at
stake”
Finally, the Court replied unanimously that “there exists an obligation to pursue in good faith and
bring to a conclusion negotiations leading to nuclear disarmament in al1 its aspects under strict and
effective international control.”
16) 175 U.S. 677 (January 8, 1900)
THE PAQUETE HABANA CASE

FACTS: This petition assailed the decrees of the United States District Court for the Southern District of
Florida which considered vessels as prizes of war.

During the war with Spain, two fishing vessels—the Paquete Habana, a 43-feet-long sloop with a
crew of three men and Lola, a 51-feet long schooner with six crew— regularly sailed and fished on the
coast of Cuba under the Spanish flag. The vessels’ master and crew had no interest in the vessel but were
entitled to shares equivalent to 2/3 of the catch; the third belonged to the owner. The vessels’ cargo
included fresh fish which were caught from the sea, stored and sold alive.

In 1898, each vessel sailed on the coast of Cuba for a fishing voyage around 200 miles to the
island’s West end. The Paquete Habana fished for 25 days in Spain’s territorial waters while the Lola went
around a 100 miles farther across the Yucatan channel and fished on its coast for eight days. On their
return, both fishing vessels including their catch were captured by one of the US’s squadron and brought
to Key West. The vessels did not carry any arm or ammunition on board and there was no evidence that
the vessels attempted to aid the enemy, resist nor run the blockade after having knowledge of its
existence.

A “libel for the condemnation” of each vessel and cargo as prize of war was filed on April 27, 1898.
On May 30, 1898, the Court issued a final decree of condemnation and entered into a sale rejecting the
doctrine that fishing vessels are exempt from seizure in the absence of any ordinance, treaty, or
proclamation. Each vessel was later sold by auction—the Paquete Habana was sold for $490 while the
Lola for $800. There was no other evidence in the record of the value of either vessel or of her cargo.

ISSUES:

(1) Whether customary international law exempted civilian fishing vessels from seizure as prize in
times of war—YES
(2) Whether, if so, that norm was enforceable in the courts of the United States against the
Government of the United States—YES
(3) Whether the content of customary international law could be proved in United States courts— YES

HELD: The Supreme Court reversed the US District Court’s decision.

The Court ruled that international law—particularly customs and established code of conduct—
could be enforced to exempt fishing vessels from being seized as prizes in times of war. Both captures of
the US were unlawful and without probable cause.

It is an established rule of international law that coast fishing vessels, with their implements and
supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and
bringing in fresh fish, are exempt from capture as prize of war. This is by the general consent of the civilized
nations of the world and independent of any express treaty or other public act.

Where there is no treaty and no controlling executive or legislative act or judicial decision, the
court should resort into existing customs and usages of civilized nations, and, as evidence of these, to the
works of jurists and commentators. Customary laws are also deemed part of the domestic law and can be
applied by the Courts, the ruling said.
 Quoting Wheaton, the Court can also rely on approved usage of nations, or the general opinion
respecting the countries’ mutual conduct, with the definitions and modifications introduced by general
consent. In this case, the court can base its decision from the origin of the above mentioned doctrine—
the 1521 order of the Emperor of France, the King of England, the 1403 and 1406 orders of Henry IV
entitled “Concerning Safety for Fishermen-De Securitate pro Piscatoribus” —which allow fishermen to
safely and lawfully fish on the sea even during war without fear of interference or molestation.
17) [1962] ICJ Rep 6 (June 15, 1962)
PREAH VIHEAR TEMPLE CASE (Cambodia v Thailand)

FACTS: In the case at hand, Cambodia alleges a violation on the part of Thailand of Cambodia's territorial
sovereignty over the region of the Temple of Preah Vihear and its precincts. Thailand replies by affirming
that the area in question lies on the Thai side of the common frontier between the two countries, and is
under the sovereignty of Thailand. This is a dispute about territorial sovereignty. To decide this question
of territorial sovereignty, the Court must have regard to the frontier line between the two States in this
sector. Maps haven been submitted to it and various considerations have been advanced in this
connection. Specifically, it stands on a promontory of the same name, belonging to the eastern sector of
the Dangrek range of mountains which constitutes the boundary between the two countries in this region
with Cambodia to the south and Thailand to the north. Considerable portions of this range consist of a
high cliff-like escarpment rising abruptly above the Cambodian plain and from the edge of the escarpment,
the general inclination of the ground in the northerly direction is downwards to the Nam Moun river,
which is in Thailand. The Parties have also relied on other arguments of a physical, historical, religious and
archaeological character, but the Court is unable to regard them as legally decisive.

One piece of evidence that has been heavily focused on in this case pertains to a map filed by
Cambodia referred to as the Annex 1 map. It is on this map that Cambodia principally relies in support of
her claim to sovereignty over the Temple. Thailand, on the other hand, contests any claim based on this
map, on the following grounds: first, that the map was not the work of the Mixed Commission (the one
who spearheaded the initial designs of the said map), and had therefore no binding character; secondly,
that at Preah Vihear the map embodied a material error, not explicable on the basis of any exercise of
discretionary powers of adaptation which the Commission may have possessed. This error, according to
Thailand's contention, was that the frontier line indicated on the map was not the true watershed line in
this vicinity, and that a line drawn in accordance with the true watershed line would have placed, and
would now place, the Temple area in Thailand.

Such was the result of treaties which were negotiated in 1904 and which determined that the line
was generally to follow a specified watershed line in this area. The watershed line at Preah Vihear followed
the edge of the escarpment, with the natural result geographically of enclosing the temple within
Thailand. However, the maps which were later produced by a French firm, at the request of the Siamese
Government, deviated from the watershed line at Preah Vihear so that the temple was shown as being in
Cambodia which, until 1953, was a part of French Indo-China. This deviation apparently went unnoticed
by Thailand. In 1949, the French Government protested on learning that Thai troops had been stationed
at Preah Vihear. It is further contended by Thailand that they never accepted this map or the frontier line
indicated on it, at any rate so far as Preah Vihear is concerned, in such a way as to become bound thereby;
or, alternatively that, if they did accept the map, they did so only under, and because of, a mistaken belief
that the map line was correctly drawn to correspond with the watershed line.

No explanation resulted however, and Cambodia, having become independent in 1953, instituted
the present proceeding before the International Court of Justice in 1959, asking that it be declared the
sovereign of the area in question.
ISSUE: WON Annex 1 map, its respective sub-maps, and the line indicated on such subject map, as
representing the outcome of the work of delimitation of the frontier in the region of Preah Vihear, has a
binding character

RULING: Yes. The Court ruled in favor of Cambodia by a vote of nine to three. The result at first seems
anomalous since it is contrary to the original provision of the treaty, and since the deviation from the
watershed was probably due to a topographical mistake. Nevertheless, the Court justified its decision on
either of two alternative bases: (1) That the two countries adopted the maps at the time of their publishing
as officially delimiting the international boundary; and (2) That the concept of preclusion now prevents
Thailand from claiming sovereignty over the territory.

As the facts were reported by the Court, the maps were never specifically adopted by the Mixed
Boundary Commission, for such body was dissolved before the maps were even published. Additionally,
the subject map being one of the series of maps of the frontier areas produced by French Government
topographical experts in response to a request made by the Siamese authorities, printed and published
by a Paris firm of repute, all of which was clear from the map itself, it was still invested with an official
standing; it had its own inherent technical authority; and its provenance was open and obvious.

The Court must nevertheless conclude that, in its inception, and at the moment of its production,
due again to its creators being dissolved before such were officially published, it had no binding character.
Copies were delivered to the central government of Thailand, however, and there could have been no
doubt that the maps purported to be the outcome of the Commission's work. Although Thailand did not
expressly recognize the validity of the maps, the Court concluded that the circumstances were such as to
impose on Thailand a duty to inspect the maps, and a failure to protest was to be taken as a tacit adoption.
This conclusion was based on the concept of "acquiescence" which protects a country having taken a
position adverse to the interest of another, where the other fails to protest within a reasonable time.

The theory is that the first country may have relied on its own position and the other country
ought to be estopped to contest the result at a later time. This is said to be "an essential requirement of
stability" in the international sphere. Acquiescence may have relevance either with respect to changes in
the status of international rights and customs, or with respect to modification of treaties, as in the instant
case. However, for the acquiescence to be effective, it must be under circumstances from which consent
on the part of the adversely affected nation could reasonably be inferred. Thailand's duty to inspect the
maps also prevented it from claiming that any adoption at the time of publication was vitiated by the
undetected error. A plea of error will not be allowed in international law where the parties could have
avoided it, and here the circumstances were such as to put Thailand on notice of possible error.

Since the Court concluded that Thailand had adopted the maps in September 1908, thus making
them a part of the treaty, and since this conclusion was strengthened by Thailand's continued use of the
maps over a long period of time, as well as other historical events, the Court found it unnecessary to
develop the preclusion theory. Nevertheless, it was asserted as an adequate basis for decision even if
Thailand had never adopted the maps. "Preclusion" in international law is the process by which one nation
acquires sovereignty over an area by long possession adverse to the real sovereign.
 In this case, the basis of preclusion would be the assertion of sovereignty in the publication of the
maps by Cambodia, and continued acts in relation to the temple amounting to a continued claim to
ownership. Thus, in the view of the evidence taken by the Court, Cambodia could now claim the temple
even if it be conceded that Thailand could have properly asserted sovereignty just subsequent to the
events of September 1908.

It also held that Thailand was under an obligation to withdraw any military or police force stationed
there and to restore to Cambodia any objects removed from the ruins since 1954.
18) 1957 I.C.J. 125 (November 26, 1957)
CASE CONCERNING RIGHT OF PASSAGE OVER INDIAN TERRITORY (Portugal v. India)

FACTS: In its application filed before the Court, the Government of Portugal stated that its territory in the
Indian Peninsula included two enclaves surrounded by the Territory of India, Dadra and Nagar-Aveli. In
July 1954, Portugal claimed that India prevented the former from exercising the right of passage over the
Indian territory between enclaves after putting obstacles in the passageway, thereby placing it in a
position in which it became impossible to exercise its rights of sovereignty over the enclaves. Portugal
requested the Court to declare that a right of passage was possessed by it and must be respected by India
to the extent necessary for the exercise of its sovereignty over the enclaves, subject to subject to the
regulation and control of India, which must be exercised in good faith. India contended that the right of
passage claimed by Portugal was too vague and contradictory to enable the Court to pass judgment upon
it by the application of the rules in international law. But Portugal had relied on the Treaty of Poona of
1779 and on decrees issued by the Maratha ruler in 1783 and 1785 as having conferred on Portugal
sovereignty over the enclaves with the right of passage to them, to which India objected as not validly
entered into and never became a treaty binding upon the Marathas.

ISSUE: Whether or not the right invoked by Portugal existed with basis in international law.

RULING: The Court ruled that Portugal had in 1954 a right of passage over intervening Indian territory
between the enclaves of Dadra and Nagar-Aveli and the coastal district of Daman and between those
enclaves, to the extent necessary for the exercise of Portuguese sovereignty over the enclaves and subject
to the regulation and control of India, in respect of private persons, civil officials, and goods in general,
but not in respect of armed forces, armed police, and arms and ammunition.

With regard to the treaty and decrees invoked by Portugal, the Court found that the Marathas did
not question the validity or binding character of the treaty. Portuguese sovereignty over the subject
enclaves had been recognized by the British in fact and by implication and had subsequently tacitly
recognized by India. There was a common ground between the parties that during the British and post-
British periods, the passage of private persons and civil officials had not been subject to any restrictions
beyond routine control.

In view of such circumstances surrounding the case, the Court concluded that there had existed a
constant and uniform practice allowing free passage between Daman and the enclaves and that the
practice had been accepted as law by the parties and had given rise to a right and correlative obligation.

As regard to the armed forces, armed police, and arms and ammunition, no right of passage in
favor of Portugal involving a correlative obligation on India had been established. As to the events which
had occurred in July 1954, the Court said that India’s refusal of passage was within its power of regulation
and control of the right of passage of Portugal.
19) [1949] ICJ Rep 4 (April 9, 1949)
Corfu Channel Case (United Kingdom v. Albania)

FACTS: Three series of incidents after the Second War II gave rise to the Corfu Channel dispute— the first
public International law case to be heard and tried by the International Court of Justice.

The dispute first started on May 15, 1946 when United Kingdom of Great Britain’s two Royal Navy
Ships HMS Orion and HMS Superb came under fire while passing through the Corfu Channel within
Albanian territory. Although suffering no damage, Britain demanded public apology from the Albanian
government. The British did not yield to Albania’s request prompting the latter to accuse Britain of
trespassing. A second incident aggravated the first on October 22, 1946 when the British government
ordered its Royal Navy fleet— comprised of the cruisers HMS Mauritius and HMS Leander, and destroyer
HMS Saumarez and Volage — to go northward through the Corfu Cannel and test Albania’s reaction to
the right of innocent passage. One of the British Royal Navy ships struck a mine which destroyed the
Saumarez killing 44 people and wounding 42 people. Volage, which towed the ship Saumarez, struck
another mine. Waving the white flag, the British came to help and gave full military pensions to the
disabled and the dead.

On November 12 and 13, 1946, the British Royal Navy conducted a minesweeping operation
within the territorial waters of Albania. The United Kingdom of Great Britain later filed an application on
May 22, 1947 before the International Court of Justice accusing Albania for allowing a third State to lay
the mines after the Allied naval authorities carried a mine-clearing operations.

The case was brought up to the United Nations and later to the Court through a recommendation
from then UN Security Council. The petitioner argued that the Albanian government had responsibility for
the damages and the loss of lives it incurred in its territorial waters. It also accused Albania for conniving
with the Yugoslav Navy in ints mine- laying operations.

The Albanian government, meanwhile, filed a counterclaim saying the United Kingdom violated
Albanian sovereignty when it sent warships into Albanian territorial waters and carried out minesweeping
operations in Albanian waters after the incident.

ISSUES:
(1) Whether or not the Court has jurisdiction to settle dispute— YES.
(2) Whether or not Albania is responsible under International law for the explosions that took place
in the waters of Albanian and for the corresponding damage and loss of life — YES.
(3) Whether or not the minesweeping operations of United Kingdom violated the sovereignty of
Albania—YES

HELD: The first judgement issued in March 25, 1948 ruled that the court had jurisdiction to hear the case.
The Government of Albania’s letter addressed to the Court signified its “voluntary acceptance” of its
jurisdiction to hear the case. According to the Court, the proceeding is regular since no provision
proscribed the hearing of such case. The consent of both parties, it said, is not subject to any particular
conditions of form.
 Anent the second issue, the Court found Albania responsible for the damage and loss of lives in
its decision issued on April 9, 1949. The Court rejected the argument of Albania saying the mine operation
could not have been laid without the knowledge of the Albanian government.

The Court held that the victim-state must be given a more “liberal” recourse to interferences of
fact and circumstantial evidence since it would be impossible for it to furnish direct proof of facts to prove
the defendant-states international responsibility in an area exclusively controlled by the latter.

The indirect evidence, the Court said, must be given weight if based on series of facts that lead
logically to a sound and single conclusion. The Court said the United Kingdom had plainly exercised the
right of innocent passage through the Corfu Channel which is an international strait.

As to the third issue, the Court ruled that the minesweeping operations of United Kingdom
violated Albanian government’s sovereignty since it was done against the will of the respondent-state.
The court did not agree with the British’s defense of “self-help.

Meanwhile, in its third judgement in 1949, the Court ordered Albania to pay United Kingdom an
amount of £844,000 as reparation damages.
20) 1928 PCIJ Ser. A, No. 17 (September 13, 1928 )

CHORZOW FACTORY CASE (Germany v. Poland)

FACTS: There was an agreement between Germany and Poland and that bilateral treaty was known as
the Geneva Upper Silesia Convention of 1922. It had been provided in that treaty that on transfer of
sovereignty of certain territories from Germany to Poland after the First World War, existing propriety
right were to be maintained, except that the Polish Government was granted a right of expropriation
under certain condition with respects of all property belonging to German nationals in Upper Silesia.

The present dispute arose when Poland seized two (2) companies thru a decision by Polish Court which
declared that the property rights of the lands in question of the companies were to be registered in the
name of the Polish Treasury, therein breach its international obligation under the Upper Silesia
Convention of 1922. The Germany demanded compensation from Poland for the damage suffered by the
Oberschlesische Stickstoffwerke A.-G. and the Bayerische Stickstoffwerke A.-G. in consequence of the
attitude adopted by that Government towards those Companies in taking possession of the nitrate factory
situated at Chorzów.

ISSUE: Whether there was any international obligation to make repatriation on Poland due to the breach
of the bilateral treaty between Germany and Poland?

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

It is a principle of International law that the breach of an engagement involves an obligation to make
reparation in an adequate form. Reparation, therefore is the indispensable complement of a failure to
apply a convention and there is no necessity for this to be stated in the convention itself. The attitude of
the Polish Government toward both Companies was not in conformity with those articles, but that the
Court was not called upon to state what attitude would have been in conformity with them.

A careful examination of the provisions of Head III of the Geneva Convention brings out-as the
Court has already had occasion to point out in Judgment No. 7-that one of the fundamental principles
upon which this Head is based, as regards procedure, is that no dispossession may be effected without
previous notice to the real or apparent owner, affording him an opportunity of being heard before the
competent tribunal. It is certain-having regard to the promulgation by the Polish Government of the laws
of July 14th 1920, and of June 16th, 1922, and to the application given to those laws-that in this case such
a procedure has not been adopted, for the dispossession of the Companies concerned had, in the Polish
Government's contention, taken place outside the framework of the Geneva Convention.
21) 1970 I.C.J. 3 (February 5, 1970)
BARCELONA TRACTION LIGHT & POWER COMPANY CASE (Belgium v. Spain)

FACTS: Barcelona Traction issued several series of bonds, principally in sterling. However, the Spanish
exchange control authorities refused to authorize the transfer of the foreign currency, unless it were
shown that the foreign currency was used to repay debts arising from the genuine importation of foreign
capital into Spain and that this had not been established.

In 1948, three (3) Spanish holders of recently acquired Barcelona Traction sterling bonds
petitioned the court of Reus (Province of Tarragona) for a declaration adjudging the company bankrupt,
on account of failure to pay the interest on the bonds. A judgment was given declaring the company
bankruptcy and ordering the seizure of the assets of Barcelona Traction and two of its subsidiary
companies.

The Belgian Government filed with the International Court of Justice an Application against the Spanish
Government seeking reparation for damage allegedly caused to the Barcelona Traction, Light and Power
Company, Limited, on account of acts said to be contrary to international law committed by organs of the
Spanish State.

ISSUE: Whether or not Belgium had a legal interest in the matter

RULING: In this field international law is called upon to recognize institutions of municipal law that have
an important and extensive role in the international field. This does not necessarily imply drawing any
analogy between its own institutions and those of municipal law, nor does it amount to making rules of
international law dependent upon categories of municipal law. All it means is that international law has
had to recognize the corporate entity as an institution created by States in a domain essentially
within their domestic jurisdiction. This in turn requires that, whenever legal issues arise concerning the
rights of States with regard to the treatment of companies and shareholders, as to which rights
international law has not established its own rules, it has to refer to the relevant rules of municipal law.

Consequently, in view of the relevance to the present case of the rights of the corporate entity
and its shareholders under municipal law, the Court must devote attention to the nature and interrelation
of those rights. Here, although Belgian shareholders suffered if a wrong was done to the company, it was
only the company's rights that could have been infringed by Spain's actions. It would only be if direct
shareholder rights (such as to dividends) were affected, that the state of the shareholders would have an
independent right of action.

International law had to refer to those rules generally accepted by municipal legal systems. An
injury to the shareholder’s interests resulting from an injury to the rights of the company was insufficient
to found a claim. Where it was a question of an unlawful act committed against a company representing
foreign capital, the general rule of international law authorized the national State of the company alone
to exercise diplomatic protection for the purpose of seeking redress. No rule of international law expressly
conferred such a right on the shareholder’s national state.
22) 53 I.L.R. 389 (January 19, 1977)
TEXACO OVERSEAS PETROLEUM COMPANY v. THE GOVERNMENT OF THE LIBYAN ARAB REPUBLIC

FACTS: In 1973 to 1974, the Libyan government took measures to nationalize all Texaco’s Overseas
Petroleum Co. and California Asiatic Oil Company (hereinafter called Companies). The legality of such
measures, however, was contested by the companies as it is against the provisions of the fourteen Deeds
of Concession concluded between 1955 and 1968 between the Companies and Libya. The majority of said
Deeds of Concession were modified by consent of all parties in 1963, 1966, 1970 and 1971. The purpose
of which was to bring the Concessions in line with the amended Petroleum Law (originally 1955, amended
by Royal Decrees).

The Companies argue that the nationalization measures of the Libyan Government, is contrary to
the instability and stabilization provisions of Clause 16 which provides that:
“ 1. The Libyan Government, the (Petroleum) Commission and the competent authorities in the
Provinces shall take all the steps that are necessary to ensure that the Company enjoys all the rights
conferred upon it by this concession, and the contractual rights expressly provided for in this concession
may not be infringed except by agreement of both parties.

2. This concession shall be interpreted during the period of its effectiveness in accordance with
the provisions of the Petroleum Law and the Regulations issued thereunder at the time of the grant of the
concession, and any amendments to or cancellations of these Regulations shall not apply to the
contractual rights of the Company except with its consent.”

The Companies requested for arbitration by virtue of Clause 28 of the Deeds of Concession, which
provides that: “This concession shall be governed by and interpreted in accordance with the principles of
the Law of Libya common to the principles of international law and in the absence of such common
principles then by and in accordance with the general principles of law, including such of those principles
as may have applied by international tribunals.” In accordance to the said clause, the Companies
designated their arbitrator but the Libyan government abstained from designating its arbitrator.
Thereafter, the Companies requested, as provided for in this situation by the same clause, the President
of the International Court of Justice to designate a sole arbitrator. On December 18, 1974, the President
of the I.C.J. appointed the French Law Professor René-Jean Dupuy as sole arbitrator.

The Libyan government refused to participate in the arbitration and argues that with respect to
nationalization, municipal law should govern and not international law, therefore, no arbitration should
take place in the present case.

ISSUES:
(1) Whether or not the reference made to general principles of law in the international arbitration
context is sufficient criterion for the internationalization of contract.
(2) Whether an internationalized contract between a sovereign State and private contracting parties
may be unilaterally altered by the State without the consent of all parties.
(3) Whether or not the Libyan government breached its obligations under the contracts when it
adopted nationalization measures.
RULING:

(1) Yes. Although, the contract itself deferred to the Libyan Law, it did not preclude the application of
international law. To settle, this issue, the two laws must be combined in order to verify that the
Libyan Law complies with international law. The internationalization of a contract depends on
whether it makes reference to “general principles of law” as the applicable law governing the contract,
whether it contains an arbitration clause, or whether it constitutes an economic development
agreement. Once a State has entered into an “internationalized” contract, it has taken on an
international obligation to a foreign contracting party to guarantee that party a certain legal or
economic status over a certain period of time. The State, by entering into an international agreement
with any party whatsoever, exercises its sovereignty whenever the State is not subject to duress and
where the State has freely committed itself through an untainted consent. When Libya freely and
without duress entered into the deeds of concession agreements with the Companies, it granted them
a certain legal and economic status for a minimum of fifty years.

(2) No. An internationalized contract between a sovereign State and private contracting parties
constitutes binding international law, and may not be unilaterally altered by the State without the
consent of all parties. Furthermore, An internationalized contract between a sovereign State and
private contracting parties constitutes binding international law, and may not be unilaterally altered
by the State without the consent of all parties.

(3) Yes. Libya’s nationalizing actions violated the terms of its binding international contract, the deeds of
concession, with the Companies. Although, the arbitrator recognized that the right of the State to
nationalize is unquestionable, he still questioned whether the act of sovereignty which constitutes
the nationalization authorizes a State to disregard its international commitments assumed by it within
the framework of its sovereignty. In this respect the arbitrator drew a distinction between a
nationalization concerning nationals of a State or a foreign party in respect of whom the State had
made no particular commitment to guarantee and maintain their position, and a nationalization
concerning an international contract. The former type is completely governed by the domestic law.
But in the case of an internationalized contract the State has placed itself under international law. To
resolve this issue, the arbitrator considered that Libya had undertaken specific commitments which
could not be disregarded by the nationalization measures. The arbitrator referred to the specific
provision of instability and stabilization under clause 16. However the arbitrator noted that the said
provision does not, in principle, impair the sovereignty of the Libyan State to legislate in the field of
petroleum activities in respect of other persons. Clause 16 only makes such acts invalid as far as the
Companies are concerned for a certain period of time.

The arbitrator observed that:

'The recognition by international law of the right to nationalize is not sufficient ground to empower a
State to disregard its commitments, because the same law also recognizes the power of a State to commit
itself internationally, especially by accepting the inclusion of stabilization clauses in a contract entered
into with a foreign private party'.
23) 53 ILR 297 (October 10, 1973)
BP Exploration Company (Libya) Limited v. Government of the Libyan Arab Republic

FACTS: In 1957 the Petroleum Commission of the Government of Libya, acting in implementation of the
Libyan Petroleum Law of 1955, granted Concession 65 to Mr Hunt, a citizen of the United States. In 1960
the Claimant company, BP Exploration Company (Libya) Limited, acquired from Mr. Hunt an undivided
one half interest in Concession 65. The Concession contained a grant of an exclusive right for 50 years to
search for and extract petroleum in a designated area of Libya, and to sell the oil thus produced.

On 7 December 1971 the Libyan Government passed a law nationalizing the activities of the Claimant
in respect of Concession 65. This was said by the Libyan Government to be in retaliation for certain actions
by the British Government in the Gulf. The Law provided that the State should pay compensation to be
determined within three months by a committee to be appointed by the Minister of Petroleum.

The Claimant started arbitration proceedings on 11 December 1971, contending that the
nationalization amounted to a unilateral and unacceptable repudiation of the Concession. Further, the
Claimant contended that in holding that the Libyan Nationalization Law was effective to
terminate the Concession the Tribunal had made the error inter alia of permitting a party to a
contract by its own breach to put an end to the contract. This, the Claimant asserted, was
contrary to the principles of Libyan law and of international law as well as to general principles of
law.

ISSUES:

(1) Whether the Libyan Law or Public International Law applies.

(1) In the event that international law and Libyan law conflict on that issue, the question is to be resolved
by the application of the general principles of law. The Tribunal cannot accept the submission that
public international law applies, for paragraph 7 of Clause 28 does not so stipulate. Nor does the BP
Concession itself constitute the sole source of law controlling the relationship between the Parties.
The governing system of law is what that clause expressly provides, viz. in the absence of principles
common to the law of Libya and international law, the general principles of law, including such of
those principles as may have been applied by international tribunals.

(2) No elaborate reasons are required to resolve the third issue in this case. The BP Nationalization Law,
and the actions taken thereunder by the Respondent, do constitute a fundamental breach of the BP
Concession as they amount to a total repudiation of the agreement and the obligations of the
Respondent thereunder, and, on the basis of rules of applicable systems of law too elementary and
voluminous to require or permit citation, the Tribunal so holds. Further, the taking by the Respondent
of the property, rights and interests of the Claimant clearly violates public international law as it was
made for purely extraneous political reasons and was arbitrary and discriminatory in character. Nearly
two years have now passed since the nationalization, and the fact that no offer of compensation has
been made indicates that the taking was also confiscatory.
24) 27 ILR 117 (August 23, 1958)
SAUDI ARABIA v. ARABIAN AMERICAN OIL COMPANY

FACTS: The case revolved around the interpretation of a concession agreement signed on May 29, 1933,
and later amended, between the Saudi Arabia and Arabian American Oil Company (Aramco) on the
exclusive right to transport oil taken from Aramco’s concession area in Saudi Arabia.
In 1954, the Government of Saudi Arabia made an agreement with A.S. Onassis and his company, Saudi
Arabian Maritime Tankers Ltd. (Satco) which gave Satco vessels a 30-year “right of priority” to carry and
transport Saudi Arabian oil. The agreement also provided that the Satco fleet would be of Saudi Arabian
registry. Aramco argued the Satco agreement was in conflict with its rights under the 1933 concession
agreement to have exclusive right to transport Saudi Arabian oil by forcing it to use Satco’s tankers. Amid
the dispute, the Saudi Arabia argued no express stipulation on the exclusive right of transportation by sea
was to be found in the Agreement while asserting its sovereign right and discretion in regulating the
transportation by sea commercial products of its national economy.

ISSUE: Whether or not Aramco maintains the exclusive right to transport oil in Saudi Arabia under the
concession agreement.

RULING: The Arbitration Tribunal ruled in favor of Aramco. The Tribunal noted the exclusive right granted
to the Aramco by Article 1 of the 1933 Concession Agreement is a global right, which contains several
particular rights indicated by the Parties in an order following roughly the ordinary steps of oil production
and sale, from its extraction in Saudi Arabia to its exportation, marketing and sale abroad. Aramco's
exclusive right covers all those granted rights, which constitute a whole. That the Government has granted
to Aramco all the rights of exclusive transport by sea that it could grant with respect to its maritime
domain, the high seas being free and not subject to its sovereignty.

The Tribunal held that Aramco is legally protected by the principle of acquired rights which is
justified Aramco’s resistance to any infringement of the rights granted to it. It added that the territorial
sovereignty of the State over its means of maritime communications is not unrestricted and can only be
exercised within the limits of customary international law, of the treaties the State has concluded and of
the particular undertakings it has assumed.
 II. SUBJECTS OF
INTERNATIONAL LAW
1) G.R. No. 101949 (December 1, 1994)
THE HOLY SEE vs. THE HON. ERIBERTO U. ROSARIO, JR., et. al.

FACTS: This Petition of Certiorari arose from a controversy over a parcel of land (Lot-5A) located in
Paranaque, Metro Manila, which is registered in the name of Petitioner See. This land was contiguous to
Lot 5-B and 5-D, which are registered in the name of Philippine Realty Corporation (PRC). These three lots
were sold to Ramon Licup through Msgr. Domingo A. Cirilos. Later, he assigned his rights to Respondent
Starbright Sales Enterprises, Inc.
In view of the refusal of the squatters to vacate the said lots, a dispute arose between the parties
on whose responsibility was it to evict and clear the land of squatters. Complicating the situation,
Petitioner See sold Lot 5-A to Tropicana Properties and Development Corporation (Tropicana).
Private Respondent Starbright filed a Complaint with RTC for annulment of the sale of the three
lots, specific performance and damages against Msgr. Cirilios, PRC as well as Tropicana Properties and
Development Corporation. Petitioner See moved to dismiss the petition for lack of jurisdiction based on
sovereign immunity from suit. The Motion was denied after finding that petitioner "shed off" its sovereign
immunity by entering into a business contract in question.
ISSUE: Whether or not Holy See can invoke sovereign immunity.
HELD: The petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against petitioner
is DISMISSED.
As expressed in Sec. 2 Art II of the 1987 Constitution, we have adopted the generally accepted
principles of International Law. Even without this affirmation, such principles of International Law are
deemed incorporated as part of the law of the land as a condition and consequence of our admission in
the society of nations.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation
was made not for commercial purpose, but for the use of petitioner to construct thereon the official place
of residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in
a receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in
the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the
Philippine Senate and entered into force in the Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action relating to private immovable
property situated in the territory of the receiving state which the envoy holds on behalf of the sending
state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the more
reason should immunity be recognized as regards the sovereign itself, which in this case is the Holy See.
Besides, the privilege of sovereign immunity in this case was sufficiently established by the
Memorandum and Certification of the Department of Foreign Affairs, which is tasked with the conduct of
the Philippines' foreign relations has formally intervened in this case and officially certified that the
Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt
from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic mission or
embassy in this country. . Where the plea of immunity is recognized and affirmed by the executive branch,
it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government
in conducting the country's foreign relations.
2) 1970 I.C.J. 3 (February 5, 1970)
Barcelona Traction, Light and Power Company Case (Belgium v. Spain)

FACTS: The Barcelona Traction, Light and Power Company, Limited, was incorporated in 1911 in Toronto,
Canada), where its head office is located. It formed a number of subsidiary companies in Catalonia, Spain
in order to establish an electric power production and distribution system. Some had their registered
offices in Canada and the others in Spain. In 1936, the subsidiary companies supplied the major part of
Catalonia's electricity requirements. According to the Belgian Government, some years after the first
world war, Barcelona Traction’s share capital came to be very largely held by Belgian nationals, but the
Spanish Government contends that the Belgian nationality of the shareholders is not proven.

Barcelona Traction then issued several series of bonds, principally in sterling. The sterling bonds were
serviced out of transfers to Barcelona Traction, which were effected by the subsidiary companies stated
above. In the same year, the servicing of the Barcelona Traction bonds was suspended on account of the
Spanish civil war. After that, the Spanish exchange control authorities refused to authorize the transfer of
the foreign currency necessary for the resumption of the servicing of the sterling bonds. When the Belgian
Government complained of this, the Spanish Government stated that the transfers could not be
authorized unless it were shown that the foreign currency was to be used to repay debts arising from the
genuine importation of foreign capital into Spain and that such had not been established.
In 1948, three Spanish holders that acquired Barcelona Traction sterling bonds made a petition to the
court of Reus (Province of Tarragona) for a declaration adjudging the company bankrupt, on account of
failure to pay the interest on the bonds. A judgment was then given declaring the company bankrupt and
ordering the seizure of the assets of Barcelona Traction and of two of its subsidiary companies. Shortly
afterwards, these affected the other subsidiary companies. New shares of the subsidiary companies were
created, which were sold by public auction in 1952 to a newly-formed company, Fuerzas Electricas de
Cataluna, S.A. (Fecsa), which thereupon acquired complete control of the undertaking in Spain.
Proceedings were brought without success in the Spanish courts by various entities. Preliminary
objections was raised by Spain that the plaintiff lacked standing to bring suit for damages to Barcelona
Traction-Light and Power Company, which is a mainly Canadian company. The Court found that in 1948
Barcelona Traction, which had not received a judicial notice of the bankruptcy proceedings, and was not
represented before the Reus court, took no proceedings in the Spanish courts until June 18 and thus did
not enter a plea of opposition against the bankruptcy judgment within the time-limit of eight days from
the date of publication of the judgment laid down in Spanish legislation. The Belgian Government
contends, however, that the notification and publication did not comply with the relevant legal
requirements and that the eight-day time-limit never began to run.
ISSUE: WON the state of the shareholders of a company (Belgium) have a right of diplomatic protection if
the state whose responsibility is invoked (Spain) is not the national state of the company (Canada)?

RULING: No. The International Court of Justice held that Belgium had no legal interest in the matter to
justify it bringing a claim. Although Belgian shareholders suffered if a wrong was done to the company, it
was only the company's rights that could have been infringed by Spain's actions. The Court observed that
when a State is admitted into its territory foreign investments or foreign nationals, it was bound to extend
to them the protection of the law and assumed obligations concerning the treatment to be afforded them.
But such obligations were not absolute. In order to bring a claim in respect of the breach of such an
obligation, a State must first establish its right to do so.
 In the field of diplomatic protection, international law is in continuous evolution and is called upon
to recognize institutions of municipal law. In municipal law, the concept of the company was founded on
a firm distinction between the rights of the company and those of the shareholder. Only the company,
which was endowed with legal personality, could take action in respect of matters that were of a
corporate character. A wrong done to the company frequently caused prejudice to its shareholders, but
this did not imply that both were entitled to claim compensation. Whenever a shareholder's interests
were harmed by an act done to the company, it was to the latter that he had to look to institute
appropriate action. An act infringing only the company's rights does not involve responsibility towards the
shareholders, even if their interests were affected. In order for the situation to be different, the act
complained of must be aimed at the direct rights of the shareholder, which was not the case here since
the Belgian Government had itself admitted that it had not based its claim on an infringement of the direct
rights of the shareholders.

When it comes to questions of an unlawful act committed against a company representing foreign
capital, the general rule of international law authorized the national State of the company alone to
exercise diplomatic protection for the purpose of seeking redress. No rule of international law expressly
conferred such a right on the shareholder's national State. Because Canada had chosen not to, it ended
there. The idea of a "diplomatic protection" of the shareholders was unsound because it would create
confusion and insecurity in economic relations as shares are 'widely scattered and frequently change
hands'. The court also said that a state is bound to give the same legal protection to foreign investments
and nationals, either for natural or legal persons, when it admits them to its territory. It has also
maintained that a State could make a claim when investments by its nationals abroad, such investments
being part of a State's national economic resources, were prejudicially affected in violation of the right of
the State itself to have its nationals enjoy a certain treatment. But, in the present state of affairs, such a
right could only result from a treaty or special agreement. And no instrument of such a kind was in force
between Belgium and Spain.
3) 1949 I.C.J. 174 (April 11, 1949)
Re: Reparation of Injuries Suffered in Service of the U.N.: Advisory Opinion

FACTS: The United Nations General Assembly requested the International Court of Justice for an advisory
opinion regarding the capacity of the UN to bring an international claim for the damage suffered by the
international body and its agencies.

The UN filed the action following the assassination of Swedish diplomat Count Folke Bernadotte in
September 1948 In Jerusalem by “members of a stern terrorist gang” in Palestine. Bernadotte was shot at
close range inside his vehicle.

Bernadotte was appointed UN mediator in Palestine amid the Arab-Israeli conflict to seek a peaceful
settlement and stop the war in Palestine and Jordan. One of the advocacies he espoused was to help
Palestinian refugees return to their homes.

ISSUES:

(1) Whether or not the UN can bring an international claim for the damage it suffered against a de
jure or de facto government —YES
(2) Whether or not the UN can bring an international claim for the damage suffered by its agents—
YES
(3) Whether nor not the UN can pursue a claim against non-member states of UN— YES

HELD: Anent the first issue, the ICJ said the UN could file an international claim for the damage it suffered,
in this case, against Israel which controlled Jerusalem.

According to the Court, the UN is a subject of international law capable of possessing international
rights and duties and maintaining its rights by bringing up international claims. There is no question on
whether it can negotiate or conclude a special agreement and prosecute a claim before an international
tribunal. The question is whether it can recover reparations due and in respect of the damage caused to
the victim. The Court relied on the following reasons to justify the decision. First, the Court said the UN
has a legal personality which is indispensable in order for it to fulfill its functions of giving its members a
full measure of protection and ensure reparations for injuries suffered. Second, UN’s legal personality is
not the same as that of the State and, lastly, personality depends on the purposes and functions either
specified or implied. The functions of the UN could not be effectively discharged if they do not involve
the concurrent action of 58 or more foreign offices. The court concluded that members had endowed the
organization to bring international claims when necessitated by the discharge of its functions.

As to the second issue, the Court ruled the UN can claim damages for the damages suffered by its
agents —as in this case, Count Bernadotte— due to the breach of the State of its Obligations towards the
UN. Although this provision is not expressly mentioned in the UN Charter, the ICJ recognized the concept
of implied powers. The UN, it said, has powers not only those provided explicitly in the Charter but also
those “essential to the performance of the UN duties.” UN can ask for reparations for the damages
suffered by its agents in line with its duty to protect its agents. This was the same rule applied by the ICJ
to the International Labor Organization in its Advisory Opinion no.13. The court also recognized UN’s
institutional independence. The court added that UN’s actions are not based on the nationality of the
victim but his status as an agent of the UN. Question of nationality is not pertinent to the admissibility of
claim.
 As to the third issue, the ICJ opined the UN could file a claim against non-UN member states under
the concept of objective international personality. UN members, it said, created an entity possessing
objective International personality and not personality recognized by them alone. The Court said
competition between the UN and the State when it comes to protecting the interest of the citizens could
be eliminated through a general Convention or by a particular agreement in any individual case.
4) 1924 P.C.I.J. (ser. B) No. 3 (August 30, 1924)
Mavrommatis Case (Greece v. United Kingdom)

FACTS: The Government of the Greek Republic filed a suit before the PCIJ arising out of the alleged refusal
on the part of the Government of Palestine, and consequently also on the part of His Britannic Majesty’s
Government, since the year 1921 to recognize to their full extent the rights acquired by M. Mavrommatis,
a Greek subject, under contracts and agreements concluded by him with the Ottoman authorities in
regard to concessions for certain public works to be constructed in Palestine.

This application concludes with a request that the Court may be pleased to give judgment to the
effect that the Government of Palestine and consequently also the Government of His Britannic Majesty,
have, since 1921, wrongfully refused to recognize to their full extent the rights acquired by M.
Mavrommatis under the contracts and agreements concluded by him with the Ottoman authorities in
regard to the works specified above, and that the Government of His Britannic Majesty shall make
reparation for the consequent loss incurred by the said Greek subject.

ISSUE: Whether or not the PCIJ has jurisdiction to entertain the proceedings in question.

RULING: The general basis of the jurisdiction given to the Permanent Court of International Justice is set
down in Articles 34 and 36 of the Statute, according to which, in the first place, only States. or Members
of the League of Nations may appear before it and, in the second place, it has jurisdiction to hear and
determine "all cases which the Parties refer to it and all matters specially provided for in Treaties and
Conventions in force".

The Parties in the present case agree that Article 26 of the Mandate for Palestine conferred on
His Britannic Majesty on July 24th, 1922 falls within the category of "matters specially provided for in
Treaties and Conventions in force" under the terms of Article 36 of the Statute. Article 26 of the Mandate
states that the "The Mandatory agrees that, if any dispute whatever should arise between the Mandatory
and another Member of the League of Nations relating to the interpretation or the application of the
provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the
Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of
Nations."

Article 26 of the Mandate, in giving jurisdiction to the Permanent Court of International Justice
does not, in fact, merely lay down that there must be a dispute which requires to be settled. It goes on to
say that the dispute must be between the Mandatory and another Member of the League of Nations. This
is undoubtedly the case in the present suit, since the claimant State Greece, like Great Britain, has from
the outset belonged to the League of Nations. It is an elementary principle of international law that a
State is entitled to protect its subjects, when injured by acts contrary to international law committed by
another State, from whom they have been unable to obtain satisfaction through the ordinary channels.
By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting its own rights -its right to ensure, in the person of
its subjects, respect for the rules of international law. Once a State has taken up a case on behalf of one
of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant. The fact
that Great Britain and Greece are the opposing Parties to the dispute arising out of the Mavrommatis
concessions is sufficient to make it a dispute between two States within the meaning of Article 26 of the
Palestine Mandate.
5) [1962] ICJ Rep 151 (July 20, 1962)
Re: Certain Expenses of the UN: Advisory Opinion

FACTS: In a letter dated December 21 1961, the Acting Secretary-General of the United Nations
informed the President of the Court that the General Assembly, by resolution 1731 (XVI),
had decided to request the International Court of Justice to give an advisory opinion. The Court finds
no "compelling reason" why it should not give the advisory opinion. The question on which the Court
is asked to give its opinion is whether certain expenditures which were authorized by the General
Assembly to cover the costs of the United Nations operations in the Congo (hereinafter referred to as
ONUC) and of the operations of the United Nations Emergency Force in the Middle East (hereinafter
referred to as UNEF), "constitute 'expenses of the Organization' within the meaning of Article 17,
paragraph 2, of the Charter of the United Nations".

ISSUE: Whether certain expenditures authorized by the General Assembly constitute 'expenses of the
Organization' within the meaning of Article 17, paragraph 2, of the Charter of the United Nations",

RULING: The Court agreed that such expenditures must be tested by their relationship to the
purposes of the United Nations in the sense that if an expenditure were made for a purpose which
was not one of the purposes of the United Nations, it could not be considered an "expense of the
Organization". When the Organization took action which warranted the assertion that it was
appropriate for the fulfilment of one of the purposes of the United Nations set forth in Article 1 of the
Charter, the presumption was that such action was not ultra vires the Organization. If the action were
taken by the wrong organ, it was irregular, but this would not necessarily mean that the expense
incurred was not an expense of the Organization. Both national and international law contemplated
in which the body corporate or politic might be bound by an ultra vires act of an agent. As the United
Nations Charter included no procedure for determining the validity of the acts of the organs of the
United Nations, each organ must, in the first place at least, determine its own jurisdiction.

As regards UNEF, it was apparent that the UNEF operations were undertaken to fulfil a prime
purpose of the United Nations, that is, to promote and maintain a peaceful settlement of the situation.
For the operations of Congo, the Court ruled that it was impossible to reach the conclusion that the
operations in the Congo usurped or impinged upon the prerogatives conferred by the Charter of the
!Security Council. These operations did not involve "preventive or enforcement measures" against
any State under Charter V11 and therefore did not constitute "action" as that term was used in Article
11.

Having thus pointed out on the one hand that the text of Article 17,paragraph 2, of the Charter
could lead to the conclusion that the expenses of the Organization were the amounts paid out to
defray the costs of carrying out the purposes of the 0rganization and on the other hand that the
examination of the resolutions authorizing the expenditures referred to in the request for the advisory
opinion had led to the finding that they had been incurred with that end in view; and having also
analyzed and found unfounded the arguments which had been advanced against the conclusion that
the expenditures in question should be considered as expenses of the Organization within the
meaning of Article 17, paragraph 2, of the Charter of the United Nations, the Court arrived at the
conclusion that the question submitted to it by the General Assembly must be answered in the
affirmative.
6) (1986) ICJ Rep 14 (June 27, 1986)
MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (Nicaragua v. US)

FACTS: On April 9, 1984, the Ambassador of the Republic of Nicaragua filed in the Registry of the Court
and Application instituting proceedings against the United States of America (US) in respect of a dispute
concerning responsibility for military and paramilitary activities in and against Nicaragua.
The dispute between Nicaragua and the US concerns events following the fall of the Government
of President Somoza on July 1979 when it was toppled and replaced by Frente Sandinista de Liberacion
Nacional (FSLN). Tension still arises as supporters of the former Somoza Government and former
members of the National Guard opposed the new government Nicaragua alleged that the US is covertly
in control of such armed activities carried out by Fuerza Democratica Nicaragüense (FDN), and Alianza
Revolucionaria Democratica (ARDE), called contras.
According to Nicaragua, the US, by using armed force against it was in violation of certain
international obligations under general international law as well as under the United Nations Charter, the
OAS Charter and the bilateral United States-Nicaragua Treaty of Friendship and Commerce. In particular,
it was submitted by Nicaragua that the United States was violating the prohibition of the use of force in
international relations and the parallel rule on prohibition of intervention.
The US first challenged the jurisdiction of the ICJ and inadmissibility of the Application. On
November 26, 1984, the ICJ issued a judgement that it has jurisdiction over the case and that there was
no ground of inadmissibility that could bar its consideration of the case, and that therefore it would
consider and decide on the merits of the substantive issues brought by Nicaragua. Thereafter, US refused
to accept the ICJ’s jurisdiction to hear the case and announced that it would withdraw from further
proceedings on the merits of the said case and did not appear before the ICJ during the merit stages.
ISSUES:
(1) Whether or not the United States violated its customary international law obligation not to
intervene in the affairs of another State?
(2) Whether or not the United States violate its customary international law obligation not to use
force against another State?
(3) Whether or not the military and paramilitary activities that the United States undertook in and
against Nicaragua be justified as collective self-defense?
RULING:
(1) Yes. The Court held that the US violated its customary international law obligation not to
intervene in the affairs of another State, when it trained, armed, equipped, and financed the
contra forces or when it encouraged, supported, and aided the military and paramilitary activities
against Nicaragua, in accordance to the principle of non-intervention. The principle of non-
intervention requires that every State has a right to conduct its affairs without outside
interference. Although this principle is not spelled out in the United Nations Charter, this is a
corollary of the principle of sovereign equality of States.

The Court held that: “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.”
The Court concluded that the financial support, training, supply of weapons, intelligence and
logistic support given by the United States to the contras violated the principle of non-interference.

(2) Yes. The principle on the prohibition of the use of threat or force across international frontiers is
found in the UN Charter and the customary international law. Under Article 2 paragraph 4
provides that: “All members shall refrain in their international relations from a threat or use of
force against the territorial integrity or political independence of any State , or in any other
manner inconsistent with the Purposes of the United Nations.”
The Court held that the US violated the customary international law on the prohibition of the use of
threat or force when, through the actions of its officials and individuals acting on its behalf, directly
attached Nicaragua by the following actions, which occurred between 1983 and 1984: (1) the laying of
mines in Nicaraguan internal or territorial waters; (2) attacks on an underwater oil pipeline at Puerto
Sandino; (3) an air and sea attack on the port of Corinto; 4) an attack by speedboats and helicopters using
rockets against the Potosf Naval Base; (5) an attack by speedboats and helicopters on an oil storage facility
at San Juan del Sur; (6) clashes between speedboats and a helicopter and Nicaraguan patrol boats at
Puerto Sandino, during minelaying; (7)fire support provided by a helicopter, launched from a mother ship,
in support of an anti- Sandinista (ARDE) attack on San Juan del Norte. How- ever, the Court was unable to
find that U.S. military maneuvers near the Nicaraguan border had constituted a threat or use of force. The
Court also held that the US had also violated the prohibition of the threat or use of force by the arming
and training of the contras. On the other hand, the mere supply of funds to the contras did not constitute
a use of force in violation of this prohibition, although it did violate the principle of nonintervention.

(3) No. The United States legal justification for its actions, advanced in earlier stages of the
proceedings, was that its actions had been fully justified as acts undertaken in exercise of the right
of collective self-defense recognized by article 51 of the United Nations Charter, which provides
the following: “Nothing in the present Charter shall impair the inherent right of individual or
collective self-defense if an armed attack occurs against a Member of the United Nations, until
the Security Council has taken measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self-defense shall be immediately
reported to the Security Council.”
The Court, however, that certain conditions are necessary for the lawful exercise of that right. First,
the State must have been a victim of an armed attack. Second, the State must declare itself as a victim of
an armed attack. The assessment on whether an armed attack had taken place or not, is done by the State
who was subjected to the attack. Moreover, the requirements of necessity and proportionality must also
be met.
 In applying the conditions above, the Court held that there had been no armed attack by Nicaragua
against El Salvador, Costa Rica and Honduras. The Court noted that none of the aforementioned countries
declared themselves as victims of an armed attack. They also did not request assistance from the United
States to exercise its right of self-defense. In addition, the US did not claim that when it used force, it was
acting under Article 51 of the UN Charter. Finally, the United States did not report that it was acting in
self-defense to the Security Council. The Court concluded that the US cannot justify its use of force as
collective self-defense since the prerequisites to invoke such is wanting.
7) 2005 ICJ, 116 (December 19, 2005)
Armed Activities on the Territory of the Congo ( Democratic Republic of the Congo v. Uganda )
FACTS: On 23 June 1999, the Democratic Republic of the Congo (hereinafter “the DRC”) filed an
Application instituting proceedings against the Republic of Uganda (hereinafter “Uganda”) in
respect of a dispute concerning “acts of armed aggression perpetrated by Uganda on the territory of
the Democratic Republic of the Congo, in flagrant violation of the United Nations Charter and of
the Charter of the Organization of African Unity”.
It is thus prayed for that Respondent be declared to have violated the principles of conventional
and customary law by: (1) engaging in military and paramilitary activities against the Democratic Republic
of the Congo, by occupying its territory and by actively extending military, logistic, economic and financial
support to irregular forces having operated there; (2) committing acts of violence against nationals of
the Democratic Republic of the Congo, by killing and injuring them or despoiling them of their property,
by failing to take adequate measures to prevent violations of human rights in the DRC by persons under
its jurisdiction or control, and/or failing to punish persons under its jurisdiction or control having engaged
in the above-mentioned acts; and (3) engaging in the illegal exploitation of Congolese
natural resources, by pillaging its assets and wealth, by failing to take adequate measures to prevent the
illegal exploitation of the resources of the DRC by persons under its jurisdiction or control, and/or failing
to punish persons under its jurisdiction or control having engaged in the above-mentioned acts.
ISSUE: Whether Respondent Republic of the Uganda violated certain obligations of International Law
RULING: Having concluded that Uganda was the occupying Power in Ituri at the relevant time, the Court
states that, as such, it was under an obligation, according to Article 43 of the Hague Regulations, to take
all measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied
area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation
comprised the duty to secure respect for the applicable rules of international human rights law and
international humanitarian law, to protect the inhabitants of the occupied territory against acts of
violence, and not to tolerate such violence by any third party.
The Court finds that Uganda’s responsibility is engaged both for any acts of its military that
violated its international obligations and for any lack of vigilance in preventing violations of human
rights and international humanitarian law by other actors present in the occupied territory,
including rebel groups acting on their own account. It notes that Uganda at all times has
responsibility for all actions and omissions of its own military forces in the territory of the DRC in
breach of its obligations under the rules of international human rights law and international
humanitarian law which are relevant and applicable in the specific situation.
The Court finds that the acts committed by the UPDF and officers and soldiers of the UPDF
are in clear violation of the obligations under the Hague Regulations of 1907, Articles 25, 27
and 28, as well as Articles 43, 46 and 47 with regard to obligations of an occupying Power. These
obligations are binding on the Parties as customary international law. It concludes that Uganda is
internationally responsible for violations of international human rights law and international
humanitarian law committed by the UPDF and by its members in the territory of the DRC and for failing
to comply with its obligations as an occupying Power in Ituri.
8) 507 U.S. 349 (March 23, 1993)
Saudi Arabia v. Nelson
FACTS: Scott Nelson is an American Citizen recruited to work in a Saudi Arabian hospital in 1983 under an
agreement with Hospital Corporation of America, Ltd. (HCA), an independent corporation existing under
the laws of the Cayman Islands.

During the course of his employment in Saudi in 1984, he discovered safety defects in the
hospital’s oxygen and nitrous oxide lines that endangered the patients’ lives. Nelson, whose revelation
was repeatedly ignored by the Saudi Arabian Commission, was arrested months after by the hotel’s
security officers also partially because of his false misrepresentation as a degree holder from the
Massachusetts Institute of Technology. He was then brought to a detention cell where he claimed to have
been chained, tortured and given no food for four days.

After 39 days, Nelson was released from prison. Upon his return to the US, he later filed a petition
for certiorari and action for damages against petitioners Kingdom of Saudi Arabia, King Faisal Specialist
Hospital in Riyadh, Royspec Purchasing Services—the hospital's corporate purchasing agent in the US—
for the wrongful arrest, imprisonment and torture. The Nelson couple also claimed reparation for the
damages and injuries he suffered in the hospital. They also held Saudi Arabia liable for failing to warn him
about the dangers that come with his employment.

The Nelsons said US has jurisdiction based from the Foreign Sovereign Immunities Act of 1976,
which confers jurisdiction if action is "based upon a commercial activity carried on in the United States by
the foreign state.” The Saudi Arabia and other petitioners contended that the act was not a commercial
activity. It also claimed foreign sovereign immunity, hence, the court had no jurisdiction to hear the case.

The District Court dismissed the case for lack of subject matter jurisdiction. It also held that there
was not enough nexus between Nelson's recruitment and the injuries alleged. The Court of Appeals
reversed the District’s court decision saying the hiring and recruitment of male Nelson are "commercial
activities.”

ISSUES:

(1) Whether or not the action of the Nelsons is based upon a commercial activity described under
first clause of Article 1605 paragraph (a)(2) – NO.
(2) Whether US Court has jurisdiction to try a case against Saudi Arabia—NO.

HELD: No. The Court reversed the CA decisions. The Action of the Nelson couple was not "based upon a
commercial activity" within the meaning of the first clause of Art 1605(a)(2) hence, the Court has no
jurisdiction to hear the case. Art 1605 states that foreign states are “presumptively” immune from US
jurisdiction unless the action is based upon a commercial activity carried on in the US by the foreign state.

Under the restrictive theory of foreign sovereign immunity, a state is immune from the jurisdiction
of foreign courts as to its sovereign or public acts but not as to those that are private or commercial in
character. A State is said to engage in commercial activity under that theory if it exercises only those
powers that can also be exercised by private citizens, rather than those powers peculiar to sovereigns.
 The Court said the action must be “based upon a commercial activity in the manner” of a private
player within the market before foreign states could be immune from the jurisdiction of courts. In this
case, the alleged torture and abusive acts could only be categorized as police abuse. It is not sovereign in
nature and could not be classified a “commercial” activity.

The Court dismissed the case against Saudi Arabia. It also did not hold Saudi Arabia liable for its
failure to warn Nelson about the consequences of work since a sovereign nation has no duty to warn
about its “propensity” for violence or “torturous conducts.”
9) (1923) 1 R.I.A.A. 369 (October 18, 1923)
Tinoco Claims Arbitration (Great Britain v. Costa Rica)
FACTS: In January, 1917, the Government of Costa Rica was overthrown by Frederico Tinoco. Tinoco
assumed power, called an election, and established a new constitution in June, 1917. Simply put, the
“Tinoco regime” came to power by this time. It was recognized as legitimate by some States, but not large
powers such as Great Britain. During its time in power, the Tinoco regime entered into several contracts
(including an oil concession) with the British government. The government continued until August, 1919
After a provisional government under one Barquero, the old constitution was restored and elections held
under it. The restored government is a signatory to this treaty of arbitration.
On the August 22, 1922, the Constitutional Congress of the restored Costa Rican Government
passed a law known as Law of Nullities No. 41. It invalidated all contracts between the executive power
and private persons, made with or without approval of the legislative power between January 27, 1917,
and September 2, 1919, covering the period of the Tinoco government.
Great Britain brought suit against Costa Rica (defendant) to enforce the contracts and collect on
the Tinoco regime’s liabilities. Its claim is that the Royal Bank of Canada and the Central Costa Rica
Petroleum Company are Britain corporations whose shares are owned by British subjects; that the Banco
Internacional of Costa Rica and the Government of Costa Rica are both indebted to the Royal Bank in the
sum of 998,000 colones, evidenced by 998 one thousand colones bills held by the Bank; that the Central
Costa Rica Petroleum Company owns, by due assignment, a grant by the Tinoco government in 1918 of
the right to explore for an exploit oil deposits in Costa Rica, and that both the indebtedness and the
concession have been annulled without right by the Law of Nullities and should be excepted from its
operation. She asks an award that she is entitled on behalf of her subjects to have the claim of the bank
paid, and the concession recognized and given effect by the Costa Rican Government.
While, the Government of Costa Rica denies its liability for the acts or obligations of the Tinoco
government and maintains that the Law of Nullities was a legitimate exercise of its legislative governing
power. It further denies the validity of such claims on the merits, unaffected by the Law of Nullities. It
argued that the Tinoco regime was not a recognized government capable of entering into contracts on
behalf of the State. In addition, Great Britain is stopped by the fact that it did not recognize the Tinoco
government during its incumbency, to claim on behalf of its subjects that Tinoco's was a government
which could confer rights binding on its successor.
ISSUE: Whether Costa Rica is justified in not recognizing the said claims and in maintaining the declaration
of their nullity.
RULING: The Court ruled in favour of Great Britain.
Dr. John Bassett Moore, now a member of the Permanent Court of International Justice, in his
Digest of International Law, announces the general principle which has had such universal acquiescence
as to become well settled international law: Changes in the government or the internal policy of a state
do not as a rule affect its position in international law. A monarchy may be transformed into a republic or
a republic into a monarchy; absolute principles may be substituted for constitutional, or the reverse; but,
though the government changes, the nation remains, with rights and obligations unimpaired.
The principle of the continuity of states has important results. The state is bound by engagements
entered into by governments that have ceased to exist; the restored government is generally liable
for the acts of the usurper.
 The Diplomatic Protection of Citizens Abroad states that the Considering the characteristics and
attributes of the de facto government, a general government de facto having completely taken the place
of the regularly constituted authorities in the state binds the nation. So far as its international obligations
are concerned, it represents the state. It succeeds to the debts of the regular government it has displaced
and transmits its own obligations to succeeding titular governments. Its loans and contracts bind the state
and the state is responsible for the governmental acts of the de facto authorities. In general, its treaties
are valid obligations of the state. It may alienate the national territory and the judgments of its courts
are admitted to be effective after its authority has ceased.
An exception to these rules has occasionally been noted in the practice of some of the states of Latin
America, which declare null and void the acts of a usurping de facto intermediary government, when the
regular government it has displaced succeeds in restoring its control. Nevertheless, acts validly
undertaken in the name of the state and having an international character cannot lightly be repudiated
and foreign governments generally insist on their binding force. The legality or constitutional legitimacy
of a de facto government is without importance internationally so far as the matter of representing the
state is concerned.
The Court ruled that based on the evidence, Tinoco government was an actual sovereign government.
To hold that a government which establishes itself and maintains a peaceful administration, with the
acquiescence of the people for a substantial period of time, does not become a de facto government
unless it conforms to a previous constitution would be to hold that within the rules of international law a
revolution contrary to the fundamental law of the existing government cannot establish a new
government. This cannot be, and is not, true. The change by revolution upsets the rule of the authorities
in power under the then existing fundamental law, and sets aside the fundamental law in so far as the
change of rule makes it necessary. To speak of a revolution creating a de facto government, which
conforms to the limitations of the old constitution is to use a contradiction in terms. The same government
continues internationally, but not the internal law of its being.
The failure to recognize the de facto government did not lead the succeeding government to change
its position in any way upon the faith of it. Non-recognition may have aided the succeeding government
to come into power; but subsequent presentation of claims based on the de facto existence of the
previous government and its dealings does not work an injury to the succeeding government in the nature
of a fraud or breach of faith. An equitable estoppel to prove the truth must rest on previous conduct of
the person to be estopped, which has led the person claiming the estoppel into a position in which the
truth will injure him. There is no such case here.
10) A/RES/60/1 (October 24, 2005)
Re: 2005 World Summit Outcome Report
FACTS: At the conclusion of the 2005 World Summit, the UN General Assembly adopted General Assembly
resolution 60/1, also known as the ‘World Summit Outcome document’, which in paragraphs 138–140
enunciated the ‘responsibility to protect’. As outlined in stated General Assembly resolution and in the
Secretary-General’s follow-up report on implementing the doctrine, the three pillars of the ‘responsibility
to protect’ comprise the responsibility of each UN Member State to protect its populations from genocide,
war crimes, ethnic cleansing, and crimes against humanity; the commitment of the international
community to assist states to exercise this responsibility, including by helping them build capacity to
protect their populations from such crimes; and by assisting states under stress before crises and conflicts
break out; and the responsibility of the international community to respond collectively, through the
United Nations, where national authorities are manifestly failing to protect their populations from
genocide, war crimes, ethnic cleansing and crimes against humanity. In light of the horrific intentional
destruction and misappropriation of cultural heritage in the ongoing armed conflicts in Iraq and Syria,
which is a phenomenon described by UNESCO’s Director-General Irina Bokova as ‘cultural cleansing’, a
need for deeper discussion and evaluation of the ‘responsibility to protect’ has emerged.
In response to this, the Secretariat organized an expert meeting to exchange ideas on the
application of the doctrine of the ‘responsibility to protect’ to the protection of cultural heritage in armed
conflict and to draft recommendations for the Director-General. Such meeting was attended by 22 experts
and representatives of governmental and non-governmental organizations, including Adama Dieng, the
UN Secretary-General’s Special Advisor on the Prevention of Genocide. The meeting was moderated by
Professor Roger O’Keefe, Professor of Public International Law at University College London.
ISSUES:
(1) WON the intentional destruction and misappropriation of cultural heritage during armed conflict
could fall within the framework of the ‘responsibility to protect’
(2) WON tools such as ‘safe havens’ and ‘cultural protected zones’ could be relied on to render the
concept operational in the context of cultural heritage
RULING: Yes. The participants agreed that, as a matter of international law, the intentional destruction
and misappropriation of cultural heritage in armed conflict could constitute war crimes and crimes against
humanity and could provide evidence of genocidal intent. Such acts were also frequently associated with
ethnic cleansing. As such, intentional destruction and misappropriation of cultural heritage during armed
conflict could fall within the existing scope of the ‘responsibility to protect’ as enunciated in paragraphs
138 and 139 of General Assembly resolution 60/1. They emphasized that the ‘responsibility to protect’
was not a legally binding obligation but a political concept, even if relevant obligations did exist under
various bodies of international law. The legal value of the ‘responsibility to protect’ lay in affirming that
the invocation of various provisions of the Charter of the United Nations, including those of chapter VII,
were permissible when the national authorities of a UN Member State failed to protect their populations
from genocide, war crimes, ethnic cleansing, and crimes against humanity.
It was especially stressed that the responsibility to protect populations from said crimes was that
of the state in whose territory the populations were situated. While the international community
undertook to assist this state in acquitting its responsibility and bore its own responsibility to help to
protect populations within that state by means of collective action through the United Nations, the
protection of those populations fell first and foremost to the state in which they were found.
 In having further discussion, two main issues were considered which were the relative emphasis
to be given to cultural heritage and the risks of invoking the ‘responsibility to protect’ for the protection
of cultural heritage.
For the first one, all agreed that the ultimate objective of protecting cultural heritage was the
protection of the living culture of populations and humanity, of human rights and dignity, and of the
interests of past and future generations. They also agreed that the intentional destruction and
misappropriation of cultural heritage and the violation of cultural rights could aggravate armed conflict
and the accompanying suffering of civilians could make peace more difficult to reach, and could hamper
post-conflict reconciliation. As such, there was unanimity that every effort should be made to improve
the wartime protection of cultural heritage. When it came to the second aforementioned issue however,
their main concern was that calling in aid the loose political concept of the ‘responsibility to protect’ risked
complicating and even hampering compliance with the various treaties imposing relevant binding
international legal obligations, from conventions in the fields of international humanitarian law,
international human rights law and international cultural heritage law to the Convention on the
Prevention and Punishment of the Crime of Genocide. However, other participants saw potential practical
benefit in regards to the ‘responsibility to protect’ as a means of mobilizing political support for the
wartime protection of cultural heritage.
No. For definition’s sake, as talked about in this case, ‘safe haven’ is a refuge for the temporary
housing of movable cultural heritage removed for safekeeping to Switzerland from conflict zones abroad
and ‘cultural protected zones’—that is, demilitarized zones for the in situ protection of cultural heritage—
is a potential means of operationalizing the ‘responsibility to protect’ for the protection of cultural
heritage in armed conflict. Both tools were considered not reliable based on its lack of details, lack of
feasibility, and its dependency of the giving of consent of all states in whose territories the conflicts took
place.
11) A/RES/2625(XXV) (October 24, 1970)
DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW CONCERNING FRIENDLY RELATIONS AND
COOPERATION AMONG STATES IN ACCORDANCE WITH THE CHARTER OF THE UNITED NATIONS

The United Nations approved on October 24, 1970 UNGA Resolution 2625 or the Declaration on
Principles of International Law concerning friendly relations and cooperation among states in accordance
with the Charter of the United Nations.
The declaration maintains that the faithful observance of the principles of international law
concerning friendly relations and cooperation among States and the fulfillment in good faith of the
obligations assumed by States are necessary to maintain international peace and security and implement
the other goals of the United Nations.
The following are the seven principles of international relations under the declaration—the non-
use of threat or force against the territorial integrity or political independence or other matters
inconsistent with the United nations; the use of peaceful means in settling international disputes; the non-
intervention in matters within the domestic jurisdiction of any state; the duty to cooperate among other
states; the principles of equal rights and self-determination of peoples; sovereign equality of States, and
the fulfillment in good faith of all obligations to promote the purposes of the United Nations.
Under the first principle, the UNGA resolution considers a war of aggression as a crime against
peace making the States involved liable under the international law. The resolution emphasizes the State’s
duty to refrain from propaganda for wars of aggression. It prohibits the use of force, threats or violence
either in solving international disputes including territorial disputes or violating international lines of
demarcation, such as armistice lines; organization, instigation, participation in acts of civil strife or
terrorist attacks in other states. Military occupation and territory acquisition resulting from the use of
threat or fire are considered illegal.
The declaration also acknowledges the state’s responsibility to refrain from any forcible action
that deprives the people of their right to self-determination and freedom and independence. It promotes
the settling of International disputes on the basis of sovereign equality of states in accordance with the
principle of Free Choice of means. The declaration aims to promote friendly relations and cooperation
among states, and bring a speedy end to colonialism. Subjection to alien subjugation, domination and
exploitation violates the principle of equal rights and self-determination.
Under the principle of sovereign equality, all states have equal rights and duties and are equal
members of the international community despite their economic, social, political and other differences,
and have the duty to comply fully and in good faith with its international obligations and to live in peace
with other States.
Sovereignty means states are judicially equal; enjoys inherent rights; has inviolable territorial
integrity and political independence; has the right to choice and development in its political, social,
economic and cultural systems. Obligations under the Charter shall prevail in case of conflict with
obligations arising from other international agreements.
Recourse to settlement of disputes with non-party States are considered incompatible with
sovereign equality. To settle disputes by peaceful means should be done in ways where international
peace, security and justice are not endangered. These include negotiation, inquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or other peaceful arrangements.
In cases where the parties failed to arrive at a successful resolution, the States are encouraged to seek
other peaceful means.
 Under the non-intervention principle, no state or groups of state are allowed to intervene, directly
or indirectly n the external or internal affairs fo the state. Armed intervention and all other forms of
interference and the use of economic, political or other measures to coerce another state to take
advantage of the other state, and the use of force to deprive the people of their national identity are
prohibited.
The States are prohibited from meddling in the civil strife of other states and organizing assisting,
fomenting, financing, inciting or tolerating subversives, terrorists or armed activities aimed at violently
overthrowing the State regime.
States, according to the declaration, have the duty to cooperate with each other despite
differences in their political, economic and social systems to maintain international peace and security,
international economic stability and progress, and general welfare of the nations.
The declaration mandates cooperation among States, especially those developing countries, to
maintain international peace and security and economic growth, promote universal respect for and
observance of rights and fundamental freedoms for all, and eliminate all forms of racial discrimination
and religious intolerance.
Utmost cooperation is also needed in the field of science and technology to promote international
cultural and educational progress.
Nothing in the declaration shall affect the powers of the Security Council under the UN Charter or
any international agreement valid under International law and forged prior to the Charter regime. The
declaration cannot enlarge or diminish the scope of the UN Charter provisions in instances where the use
of force is lawful.