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THE NATURE OF INTERNATIONAL LAW

KURODA v. JALANDONI
Digested by: Aly Candelaria

DOCTRINE:

Rules and regulations of the Hague and Geneva conventions form part of and are wholly base on the generally
accepted principals of international law. They form part of the law of our nation even if the Philippines was not a
signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in
its scope and is not confined to the recognition of rules and principles of international law as contained in treaties
to which our government may have been or shall be a signatory.

FACTS:

A Military commission was empanelled under the authority of Executive Order 68 of the President of the
Philippines, which was issued on July 29, 1947. This is an act establishing a national war crimes office and
prescribing rules and regulation governing the trial of accused war criminals.

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General
of the Japanese Imperial Forces in The Philippines from 1943-1944, is charged before a military commission
convened by the Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and failed
"to discharge his duties as such command, permitting them to commit brutal atrocities and other high crimes
against noncombatant civilians and prisoners of the Imperial Japanese Forces in violation of the laws and customs
of war".

Melville Hussey and Robert Port, American lawyers, were appointed prosecutors in behalf of USA.

Kuroda challenges the legality of the EO No. 68 and the personality as prosecutors of Hussey and Port.

Kuroda’s arguments were: (1)EO No. is illegal on the gound that ut wiolates not only the provisions of our
constitutional law but also our local laws; (2) Military Commission has no Jurisdiction to try him for acts committed
in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the
first and signed the second only in 1947 and, therefore, he is charged with “crime” not based on law, national or
international; and (3) Hussey and Port have no personality as prosecutors in this case because they are not
qualified to practice law in Philippines in accordance with our Rules of court and the appointment of said attorneys
as prosecutors is violative of our national sovereignty.

ISSUES/HELD:

(1) WON EO No. 68 is valid and constitutional? [Yes it is a valid because it is based on the generally
accepted principles of international law which form part of our laws.]

(2) WON rules and regulations of the Hague and Geneva Conventions form part of the law of the nation
even if Philippines was not a signatory to the conventions embodying them? [Yes, they form part of our laws.]

(3) WON the American lawyers could participate in the prosecution of this case? [Yes, they can.]
RATIO:

(1) The order is valid and constitutional. Article 2 of our Constitution provides in its section 3, that- The
Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of
international law as part of the nation.

In accordance with the generally accepted principle of international law of the present day including the
Hague Convention the Geneva Convention and significant precedents of international jurisprudence established by
the United Nation, all those person military or civilian who have been guilty of planning preparing or waging a war
of aggression and of the commission of crimes and offenses consequential and incidental thereto in violation of
the laws and customs of war, of humanity and civilization are held accountable therefor. Consequently, in the
promulgation and enforcement of Execution Order No. 68, the President of the Philippines has acted in conformity
with the generally accepted and policies of international law which are part of our Constitution.

The promulgation of said executive order is an exercise by the President of his power as Commander in
chief of all our armed forces as upheld by this Court in the case of Yamashita vs. Styer. Consequently, the President
as Commander in Chief is fully empowered to consummate this unfinished aspect of war namely the trial and
punishment of war criminal through the issuance and enforcement of Executive Order No. 68.

(2) Rules and regulations of the Hague and Geneva conventions form part of and are wholly based on the
generally accepted principals of international law. In fact, these rules and principles were accepted by the two
belligerent nations, the United States and Japan, who were signatories to the two Conventions. Such rule and
principles therefore form part of the law of our nation even if the Philippines was not a signatory to the
conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is
not confined to the recognition of rules and principles of international law as contained in treaties to which our
government may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was
under the sovereignty of United States and thus we were equally bound together with the United States and with
Japan to the right and obligation contained in the treaties between the belligerent countries.

(3) There is nothing in said executive order which requires that counsel appearing before said commission
must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. Respondent
Military Commission is a special military tribunal governed by a special law and not by the Rules of court which
govern ordinary civil court. Secondly, the appointment of the two American attorneys is not violative of our nation
sovereignty. It is only fair and proper that United States, which has submitted the vindication of crimes against her
government and her people to a tribunal of our nation, should be allowed representation in the trial of those very
crimes. If there has been any relinquishment of sovereignty it has not been by our government but by the United
States Government which has yielded to us the trial and punishment of her enemies.

DISSENTING OPINION of Justice Perfecto

(1) Executive Order No. 68., is null and void because, through it, the President of the Philippines usurped
power expressly vested by the Constitution in Congress and in the Supreme Court.

EO No. 68 confers upon military commission's jurisdiction to try all persons charged with war crimes. It is
clearly legislative in nature. The power to define and allocate jurisdiction for the prosecution of person accused of
any crime is exclusively vested by the Constitution in Congress. It also appropriates the sum of P700,000 for the
expenses of the National War Crimes office established by the said EO No. 68. This constitutes another usurpation
of legislative power as the power to vote appropriations belongs to Congress.

It provides rules of procedure for the conduct of trial. This provision on procedural subject constitutes a
usurpation of the rule-making power vested by Constitution in the Supreme Court.

(2) Respondents suggest that the President issued EO No. 68 under the emergency powers granted to him by
Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, and Commonwealth Act No. 671.

The above Acts cannot validly be invoked, because they ceased to have effect much before Executive
Order No. 68 was issued on July 29, 1947. Said Acts had elapsed upon the liberation of the Philippines from the
Japanese forces or, at the latest, when the surrender of Japan was signed in Tokyo on September 2, 1945. It has
never been the purpose of the National Assembly to extend the delegation of legislative powers to the President
beyond the emergency created by the war, as to extend it farther would be violative of the express provisions of
the Constitution. EO No. 68 is equally offensive to the Constitution because it violates the fundamental guarantees
of the due process and equal protection of the law because it permits the admission of many kinds evidence by
which no innocent person can afford to get acquittal and by which it is impossible to determine whether an
accused is guilty or not beyond all reasonable doubt.
CO KIM CHAM v. EUSEBIO VALDEZ TAN KEH
Digested by: Aly Candelaria

FACTS:

Co Kim Cham had a pending civil case, initiated during the Japanese occupation, with the Court of First
Instance of Manila. After the Liberation of the Manila and the American occupation, Judge Arsenio Dizon refused
to continue hearings on the case, saying that a proclamation issued by General Douglas MacArthur had invalidated
and nullified all judicial proceedings and judgments of the courts of the Philippines and, without an enabling law,
lower courts have no jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of
the defunct Republic of the Philippines (the Philippine government under the Japanese).

ISSUES:
(1)Whether or not judicial proceedings and decisions made during the Japanese occupation were valid
and remained valid even after the American occupation;
(2) Whether or not the October 23, 1944 proclamation MacArthur issued in which he declared that “all
laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth
are null and void and without legal effect in areas of the Philippines free of enemy occupation and control”
invalidated all judgments and judicial acts and proceedings of the courts;

(3) Whether or not if they were not invalidated by MacArthur’s proclamation, those courts could continue
hearing the cases pending before them.

RATIO:

Political and international law recognizes that all acts and proceedings of a de facto government are good and
valid. The Philippine Executive Commission and the Republic of the Philippines under the Japanese occupation may
be considered de facto governments, supported by the military force and deriving their authority from the laws of
war.
Municipal laws and private laws, however, usually remain in force unless suspended or changed by the conqueror.
Civil obedience is expected even during war, for “the existence of a state of insurrection and war did not loosen
the bonds of society, or do away with civil government or the regular administration of the laws. And if they were
not valid, then it would not have been necessary for MacArthur to come out with a proclamation abrogating them.
The second question, the court said, hinges on the interpretation of the phrase “processes of any other
government” and whether or not he intended it to annul all other judgments and judicial proceedings of courts
during the Japanese military occupation.
IF, according to international law, non-political judgments and judicial proceedings of de facto governments are
valid and remain valid even after the occupied territory has been liberated, then it could not have been
MacArthur’s intention to refer to judicial processes, which would be in violation of international law.
A well-known rule of statutory construction is: “A statute ought never to be construed to violate the law
of nations if any other possible construction remains.”
Another is that “where great inconvenience will result from a particular construction, or great mischief done, such
construction is to be avoided, or the court ought to presume that such construction was not intended by the
makers of the law, unless required by clear and unequivocal words.”
Annulling judgments of courts made during the Japanese occupation would clog the dockets and violate
international law, therefore what MacArthur said should not be construed to mean that judicial proceedings are
included in the phrase “processes of any other governments.”
In the case of US vs Reiter, the court said that if such laws and institutions are continued in use by the occupant,
they become his and derive their force from him. The laws and courts of the Philippines did not become, by being
continued as required by the law of nations, laws and courts of Japan.
It is a legal maxim that, excepting of a political nature, “law once established continues until changed by
some competent legislative power. IT IS NOT CHANGED MERELY BY CHANGE OF SOVEREIGNTY.” Until, of course,
the new sovereign by legislative act creates a change.
Therefore, even assuming that Japan legally acquired sovereignty over the Philippines, and the laws and
courts of the Philippines had become courts of Japan, as the said courts and laws creating and conferring
jurisdiction upon them have continued in force until now, it follows that the same courts may continue exercising
the same jurisdiction over cases pending therein before the restoration of the Commonwealth Government, until
abolished or the laws creating and conferring jurisdiction upon them are repealed by the said government.

HELD:

Writ of mandamus issued to the judge of the Court of First Instance of Manila, ordering him to take
cognizance of and continue to final judgment the proceedings in civil case no. 3012.

Summary of ratio:
(1) International law says the acts of a de facto government are valid and civil laws continue even during
occupation unless repealed.
(2)MacArthur annulled proceedings of other governments, but this cannot be applied on judicial
proceedings because such a construction would violate the law of nations.

(3)Since the laws remain valid, the court must continue hearing the case pending before it.

3 kinds of de facto government: one established through rebellion (government gets possession and control
through force or the voice of the majority and maintains itself against the will of the rightful government) through
occupation (established and maintained by military forces who invade and occupy a territory of the enemy in the
course of war; denoted as a government of paramount force) through insurrection (established as an independent
government by the inhabitants of a country who rise in insurrection against the parent state)
MEJOFF v. DIRECTOR OF PRISONS
Digested by: Margarette Sarmiento

FACTS:

The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from Shanghai
as a secret operative by the Japanese forces during the latter's regime in these Islands. Upon liberation he was
arrested as a Japanese spy, by U.S. Army Counter Intelligence Corps. Later he was handed to theCommonwealth
Government for disposition. 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. The petitioner then filed a petition for writ of habeas corpus on the basis that too
long a detention may justify the issuance of a writ of habeas corpus but such petition was denied.

Over two years having elapsed since the decision aforesaid was promulgated, the Government has not
found way and means of removing the petitioner out of the country, and none are in sight, although it should be
said in justice to the deportation authorities, it was through no fault of theirs that no ship or country would take
the petitioner thus, a second petition for the writ of habeas corpus.

ISSUE:

Whether or not the writ of habeas corpus should be granted since he was detained longer than a
reasonable time.

HELD:

Aliens illegally staying in the Philippines have no right of asylum therein even if they are "stateless," which
the petitioner claims to be. 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. Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts
the generally accepted principles of international law as part of the law of Nation." And in a resolution entitled
"Universal Declaration of Human Rights" and approved by the General Assembly of the United Nations of which
the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other
fundamental rights as applied to all human beings were proclaimed. It was there resolved that "All human beings
are born free and equal in degree and rights" (Art. 1); that "Everyone is entitled to all the rights and freedom set
forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or
other opinion, nationality or social origin, property, birth, or other status" (Art. 2): that "Every one has the right to
an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by
the Constitution or by law" (Art. 8); that "No one shall be subjected to arbitrary arrest, detention or exile" (Art. 9);
etc. Petitioner's unduly prolonged detention would be unwarranted by law and the Constitution, if the only
purpose of the detention be to eliminate a danger that is by no means actual, present, or uncontrollable. As
already noted, not only are there no charges pending against the petitioner, but the prospects of bringing any
against him are slim and remote.
Upon the abovementioned premises considered, writ will issue commanding the respondents to release
the petitioner from custody upon these terms: The petitioner shall be placed under the surveillance of the
immigration authorities or their agents in such form and manner as may be deemed adequate to insure that he
keep peace and be available when the Government is ready to deport him. The surveillance shall be reasonable
and the question of reasonableness shall be submitted to this Court or to the Court of First Instance of Manila for
decision in case of abuse. He shall also put up a bond for the above purpose in the amount of P5,000 with
sufficient surety or sureties, which bond the Commissioner of Immigration is authorized to exact by section 40 of
Commonwealth Act No. 613.
BAER v. TIZON
Digested by: Gabriel Kayaban

FACTS:

Private respondent in engaged in logging operations which was stopped by the American Naval Base
authorities. He filed for a petition for preliminary injunction restraining petition, Baer from interfering with his
logging operation. Which was then granted by the lower court.

Counsel for the petitioner contested the said jurisdiction of the respondent Judge on the ground that the
suit was against a sovereign state without its consent. The petitioner filed a motion to dismiss based on such
ground. It was pointed that he is chief of an agency of the United States. It was further added that the cessation of
the operations of the Respondent within the naval base, petitioner was entirely within the scope of his authority.
The maintenance and the security of the naval base and of the installations therein being the primary concern and
most important duty of the Commander of the Base.

Gener opposed on the motion to dismiss, on the principle that ‘a private citizen claiming title and right to
possession of certain properties may, recover such possession, sue individuals, officers, and agents of the
Government, who are said to be illegally withholding the same from him, though in doing so, said officers claim
that they are acting for the Government.’ That was his basis for sustaining the jurisdiction of the respondent Judge.

ISSUE:

Whether or not Baer, acting in his official function is immune from suit.

HELD:

The invocation of the doctrine of immunity from suit without its consent is appropriate. The US
Government has not given its consent to the filling of the suit which is against it. Moreover, this is not only a case
of a citizen filing an action against a foreign government without its consent, which renders more obvious the lack
of jurisdiction of the courts. The principle behind the rule are so elementary and of such general acceptance that
we deem in unnecessary to cite authorities in support thereof.

The solicity of the stand of the petitioner as therefore evident. He cannot be prevented from performing
his official duty, which is to protect and maintain the security of the base. Continued logging operation by Mr
Gener within the boundaries of the US Naval Base would not be consistent with the security and operations of the
base.
TANADA v. ANGARA
Digested by: Desonny Perera

FACTS:

Petitioners Senators Tañada, et al. questioned the constitutionality of the concurrence by the Philippine
Senate of the President’s ratification of the international Agreement establishing the World Trade Organization
(WTO), arguing that the WTO Agreement for violates the mandate of the 1987 Constitution to develop a self-
reliant and independent national economy effectively controlled by Filipinos x x x (to) give preference to qualified
Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally produced goods.
Petitioners argued mainly (1) that the WTO requires the Philippines to place nationals and products of member-
countries on the same footing as Filipinos and local products and (2) that the WTO intrudes, limits and/or impairs
the constitutional powers of both Congress and the Supreme Court.

ISSUE:

1) Whether or not WTO violates Self-reliant economy emobied in the constitution

2) Whether or not WTO restricts the powers of the congress and the judiciary

HELD:

1) While the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the bases
of equality and reciprocity and limits protection of Filipino enterprises only against foreign competition and trade
practices that are unfair.[32] In other words, the Constitution did not intend to pursue an isolationist policy. It did
not shut out foreign investments, goods and services in the development of the Philippine economy. While the
Constitution does not encourage the unlimited entry of foreign goods, services and investments into the country, it
does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only
on foreign competition that is unfair

2) The WTO Agreement provides that each Member shall ensure the conformity of its laws, regulations
and administrative procedures with its obligations as provided in the annexed Agreements. Petitioners maintain
that it unduly limits, restricts and impairs Philippine sovereignty, specifically the legislative power that is vested in
the Congress of the Philippines. It is an assault on the sovereign powers of the Philippines because this means that
Congress could not pass legislation that will be good for our national interest and general welfare if such legislation
will not conform with the WTO Agreement. More specifically, petitioners claim that said WTO proviso derogates
from the power to tax, which is lodged in the Congress. And while the Constitution allows Congress to authorize
the President to fix tariff rates, import and export quotas, and other duties or imposts, such authority is subject to
such limitations and restrictions as Congress may provide, as in fact it did under Sec. 401 of the Tariff and Customs
Code.

The court held that while sovereignty has traditionally been deemed absolute and all-encompassing on
the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations. In its Declaration of Principles and State Policies, the
Constitution adopts the generally accepted principles of international law as part of the law of the land, and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations."By the doctrine
of incorporation, the country is bound by generally accepted principles of international law, which are considered
to be automatically part of our own laws.One of the oldest and most fundamental rules in international law is
pacta sunt servanda -- international agreements must be performed in good faith. A treaty engagement is not a
mere moral obligation but creates a legally binding obligation on the parties. A state which has contracted valid
international obligations is bound to make in its legislations such modifications as may be necessary to ensure the
fulfillment of the obligations undertaken.

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary
act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or
derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually
covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute
rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters
as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of
conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the
laying down of rules governing conduct in peace and the establishment of international organizations. The
sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into
the picture: (1) limitations imposed by the very nature of membership in the family of nations and (2) limitations
imposed by treaty stipulations.

Also when the Philippines joined the UN, it consented to restrict its sovereign rights under the concept of
sovereignty as auto-limitation. Under Article 2 of the UN Charter, all members shall give the United Nations every
assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to
any state against which the United Nations is taking preventive or enforcement action. Such assistance includes
payment of its corresponding share not merely in administrative expenses but also in expenditures for the peace-
keeping operations of the organization.thus, the Philippine Congress is restricted in its power to appropriate. It is
compelled to appropriate funds whether it agrees with such peace-keeping expenses or not. So too, under Article
105 of the said Charter, the UN and its representatives enjoy diplomatic privileges and immunities, thereby limiting
again the exercise of sovereignty of members within their own territory. the Philippines has effectively agreed to
limit the exercise of its sovereign powers of taxation, eminent domain and police power. The underlying
consideration in this partial surrender of sovereignty is the reciprocal commitment of the other contracting states
in granting the same privilege and immunities to the Philippines, its officials and its citizens. The same reciprocity
characterizes the Philippine commitments under WTO-GATT. The point is that, as shown by the foregoing treaties,
a portion of sovereignty may be waived without violating the Constitution, based on the rationale that the
Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres
to the policy of peace, equality, cooperation and amity with all nations.

That the requirement of Article 34 to provide a disputable presumption applies only if (1) the product
obtained by the patented process is NEW or (2) there is a substantial likelihood that the identical product was
made by the process and the process owner has not been able through reasonable effort to determine the process
used. Where either of these two provisos does not obtain, members shall be free to determine the appropriate
method of implementing the provisions of TRIPS within their own internal systems and processes.

Article 34 does not contain an unreasonable burden, consistent as it is with due process and the concept
of adversarial dispute settlement inherent in our judicial system.

So too, since the Philippine is a signatory to most international conventions on patents, trademarks and
copyrights, the adjustment in legislation and rules of procedure will not be substantial.

WHEREFORE, the petition is DISMISSED for lack of merit.


ARTHUR LIM v. EXECUTIVE SECRETARY

Digested by: Resh Ilao

DOCTRINE:

A party to a treaty is not allowed to "invoke the provisions of its internal law as justification for its failure
to perform a treaty."

FACTS

Beginning January of this year 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."In theory,
they are a simulation of joint military maneuvers pursuant to the Mutual Defense Treaty,a bilateral defense
agreement entered into by the Philippines and the United States in 1951.

Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of any formal
agreement relative to the treatment of United States personnel visiting the Philippines. In the meantime, the
respective governments of the two countries agreed to hold joint exercises on a reduced scale. The lack of
consensus was eventually cured when the two nations concluded the Visiting Forces Agreement (VFA) in 1999.

Petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and prohibition, attacking
the constitutionality of the joint exercise.

ISSUE

a) whether "Balikatan 02-1" is covered by the Visiting Forces Agreement.


b) may American troops actually engage in combat in Philippine territory?

HELD

a) Yes, petition and the petition-in-intervention are hereby DISMISSED


b) No, US forces are prohibited / from engaging in an offensive war on Philippine territory.

RATIO

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. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to
protect the nation's marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief
operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the
like. Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume
that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls under the umbrella
of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual
Defense Treaty and the V FA support the conclusion that combat-related activities -as opposed to combat itself -
such as the one subject of the instant petition, are indeed authorized.

A rather recent formulation of the relation of international law vis-a-vis municipal law was expressed in
Philip Morris, Inc. v. Court of Appeals,to wit: xxx Withal, the fact that international law has been made part of the
law of the land does not by any means imply the primacy of international law over national law in the municipal
sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a
standing equal, not superior, to national legislation. From the perspective of public international law, a treaty is
favored over municipal law pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is
binding upon the parties to it and must be performed by them in good faith."Further, a party to a treaty is not
allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty. In Ichong v.
Hernandez,we ruled that the provisions of a treaty are always subject to qualification or amendment by a
subsequent law, or that it is subject to the police power of the State. In Gonzales v. Hechanova,xxx As regards the
question whether an international agreement may be invalidated by our courts, suffice it to say that the
Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII
thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or
affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and
decrees of inferior courts in -( I) All cases in which the constitutionality or validity of any treaty, law, ordinance, or
executive order or regulation is in question." In other words, our Constitution authorizes the nullification of a
treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

SUBJECTS OF INTERNATIONAL LAW

IN RE: LETTER OF ASSOCIATE JUSTICE REYNATO PUNO


Digested by: Resh Ilao

FACTS:

It appears from the records that petitioner was first appointed Associate Justice of the Court of Appeals
on 20 June 1980 but took his oath of office for said position only on 29 November 1982, after serving as Assistant
Solicitor General in the Office of the Solicitor General since 1974. 1

On 17 January 1983, the Court of Appeals was reorganized and became the Intermediate Appellate Court
pursuant to Batas Pambansa Blg. 129 entitled "An Act Reorganizing the Judiciary. Appropriating Funds Therefor
and For Other Purposes." Petitioner was appointed Appellate Justice in the First Special Cases Division of the
Intermediate Appellate Court. On 7 November 1984, petitioner accepted an appointment to be CEASED to be a
member of the Judiciary.

The aftermath of the EDSA Revolution in February 1986 brought about a reorganization of the entire
government, including the Judiciary. To effect the reorganization of the Intermediate Appellate Court and other
lower courts, a Screening Committee was created, with the then Minister of Justice, now Senator Neptali Gonzales
as Chairman and then Solicitor General, now Philippine Ambassador to the United Nations Sedfrey Ordoñez as Vice
Chairman. President Corazon C. Aquino, exercising legislative powers by virtue of the revolution, issued Executive
Order No. 33 to govern the aforementioned reorganization of the Judiciary.
The Screening Committee recommended the return of petitioner as Associate Justice of the new Court of
Appeals and assigned him the rank of number eleven (11) in the roster of appellate court justices. When the
appointments were signed by President Aquino on 28 July 1986, petitioner’s seniority ranking changed, however,
from number eleven (11) to number twenty six (26).

Petitioner now alleges that the change in his seniority ranking could only be attributed to inadvertence
for, otherwise, it would run counter to the provisions of Section 2 of Executive Order No. 33

ISSUE:

Whether the present Court of Appeals is a new court such that it would negate any claim to precedence
or seniority admittedly enjoyed by petitioner in the Court of Appeals and Intermediate Appellate Court existing
prior to Executive Order No. 33 OR Whether the present Court of Appeals is merely a continuation of the Court of
Appeals and Intermediate Appellate Court existing prior to said Executive Order No. 33.

HELD:

It is the holding of the Court that the present Court of Appeals is a new entity, different and distinct from
the Court of Appeals or the Intermediate Appellate Court existing prior to Executive Order No. 33, for it was
created in the wake of the massive reorganization launched by the revolutionary government of Corazon C. Aquino
in the aftermath of the people power (EDSA) revolution in 1986.

RATIO:

A resolution has been defined as "the complete overthrow of the established government in any country
or state by those who were previously subject to it" or as "a sudden, radical and fundamental change in the
government or political system, usually effected with violence or at least some acts of violence." In Kelsen’s book,
General Theory of Law and State, it is defined as that which "occurs whenever the legal order of a community is
nullified and replaced by a new order . . . a way not prescribed by the first order itself."

From the natural law point of view, the right of revolution has been defined as "an inherent right of a
people to cast out their rulers, change their policy or effect radical reforms in their system of government or
institutions by force or a general uprising when the legal and constitutional methods of making such change have
proved inadequate or are so obstructed as to be unavailable." It has been said that "the locus of positive law-
making power lies with the people of the state" and from there is derived "the right of the people to abolish, to
reform and to alter any existing form of government without regard to the existing constitution."

Discussions and opinions of legal experts also proclaim that the Aquino government was "revolutionary in
the sense that it came into existence in defiance of the existing legal processes" and that it was a revolutionary
government "instituted by the direct action of the people and in opposition to the authoritarian values and
practices of the overthrown government."

A question which naturally comes to mind is whether the then existing legal order was overthrown by the
Aquino government. "A legal order is the authoritative code of a polity. Such code consists of all the rules found in
the enactments of the organs of the polity. Where the state operates under a written constitution, its organs may
be readily determined from a reading of its provisions. Once such organs are ascertained, it becomes an easy
matter to locate their enactments. The rules in such enactments, along with those in the constitution, comprise
the legal order of that constitutional state." It is assumed that the legal order remains as a "culture system" of the
polity as long as the latter endures and that a point may be reached, however, where the legal system ceases to be
operative as a whole for it is no longer obeyed by the population nor enforced by the officials.

It is widely known that Mrs. Aquino’s rise to the presidency was not due to constitutional processes; in
fact, it was achieved in violation of the provisions of the 1973 Constitution as a Batasang Pambansa resolution had
earlier declared Mr. Marcos at the winner in the 1986 presidential election. Thus it can be said that the
organization of Mrs. Aquino’s Government which was met by little resistance and her control of the state
evidenced by the appointment of the Cabinet and other key officers of the administration, the departure of the
Marcos Cabinet officials, revampt of the Judiciary and the Military signalled the point where the legal system then
in effect, had ceased to be obeyed by the Filipino.
THE HOLY SEE v. ROSARIO, JR.
Digested by: Monica Ramos

FACTS:

This petition arose from a controversy over a parcel of land consisting of 6,000 square meters located in
the Municipality of Paranaque. Said lot was contiguous with two other lots. These lots were sold to Ramon Licup.

When the squatters refuse to vacate the lots, a dispute arose between the two parties because both were
unsure whose responsibility was it to evict the squatters from said lots. Respondent Starbright Sales Enterprises
Inc. insists that Holy See should clear the property while Holy See says that respondent corporation should do it or
the earnest money will be returned. With this, Msgr. Cirilios, the agent, subsequently returned the P100,000
earnest money.

The same lots were then sold to Tropicana Properties and Development Corporation. Starbright Sales
Enterprises, Inc. filed a suit for annulment of the sale, specific performance and damages against Msgr. Cirilios, PRC
as well as Tropicana Properties and Development Corporation.

The Holy See and Msgr. Cirilos moved to dismiss the petition for lack of jurisdiction based on sovereign
immunity from suit. RTC denied the motion on ground that petitioner already "shed off" its sovereign immunity by
entering into a business contract. The subsequent Motion for Reconsideration was also denied hence this special
civil action for certiorari was forwarded to the Supreme Court.

ISSUE:

Whether the Holy See is immune from suit insofar as its business relations regarding selling a lot to a
private entity

RULING:

The Court held that Holy See may properly invoke sovereign immunity for its non-suability. As expressed
in Sec. 2 Art II of the 1987 Constitution, generally accepted principles of International Law are adopted by our
Courts and thus shall form part of the laws of the land as a condition and consequence of our admission in the
society of nations.

It was noted in Article 31(A) of the 1961 Vienna Convention on Diplomatic Relations that diplomatic envoy
shall be granted immunity from civil and administrative jurisdiction of the receiving state over any real action
relating to private immovable property. The Department of Foreign Affairs (DFA) certified that the Embassy of the
Holy See is a duly accredited diplomatic missionary to the Republic of the Philippines and is thus exempted from
local jurisdiction and is entitled to the immunity rights of a diplomatic mission or embassy in this Court.

Furthermore, it shall be understood that in the case at bar, the petitioner has bought and sold lands in the
ordinary course of real estate business, surely, the said transaction can be categorized as an act jure gestionis.
However, petitioner has denied that the acquisition and subsequent disposal of the lot were made for profit but
claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines.

The Holy See is immune from suit because the act of selling the lot of concern is non-propriety in nature.
The lot was acquired through a donation from the Archdiocese of Manila, not for a commercial purpose, but for
the use of petitioner to construct the official place of residence of the Papal Nuncio thereof. The transfer of the
property and its subsequent disposal are likewise clothed with a governmental (non-proprietal) character as
petitioner sold the lot not for profit or gain rather because it merely cannot evict the squatters living in said
property.

Petition granted and the complaints were DISMISSED accordingly.


LAWYERS LEAGUE FOR A BETTER PHILIPPINES v. PRESIDENT CORAZON C.
AQUINO, ET AL.
Digested by: Pia Macayayong

FACTS:

On February 25, 1986, President Corazon Aquino issued Proclamation No. 1 announcing that she and Vice
President Laurel were taking power.

On March 25, 1986, proclamation No.3 was issued providing the basis of the Aquino government
assumption of power by stating that the “new government was installed through a direct exercise of the power of
the Filipino people assisted by units of the New Armed Forces of the Philippines.”

Petitioners alleged that the Aquino government is illegal because it was not established pursuant to the
1973 Constitution.

ISSUES:

Whether or not the petitioners have a personality to sue.

Whether or not the government of Corazon Aquino is legitimate.

RULING:

In order that the citizen’s actions may be allowed a party must showe that he personally has
suffered some actual or threatened injuries as a result of the allegedly illegal conduct of the government; the
injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.

The community of nations has recognized the legitimacy of the provisional. It was the people that made
the judgment and accepted the new government. Thus, the Supreme Court held its legitimacy.
THE PEOPLE OF THE PHILIPPINE ISLANDS v. GREGORIO PERFECTOR
Digested by: Pia Macayayong

FACTS:

On August 20, 1920, an issue started when the Secretary of the Philippine Senate which is Fernando
Guerrero, discovered that the documents regarding the testimony of the witnesses in an investigation of oil
companies had disappeared from his office. Then, the day following the convening of Senate, the newspaper La
Nacion is edited by herein respondent Gregorio Perfecto, published an article against the Philippine Senate. Here,
Mr. Perfecto was alleged to have violated Article 256 of the Spanish Penal Code – provision that punishes those
who insult the Ministers of the Crown.

ISSUE:

Whether or not Article 256 of the Spanish Penal Code is still in force and can be applied in the case at bar?

HELD:

No. The Court stated that during the Spanish Government, Article 256 of the Spanish Penal Code was
enacted to protect Spanish officials as representatives of the King. However, the Court explains that in the present
case, we no longer have Kings nor its representatives for the provision to protect. Also, with the change of
sovereignty over the Philippines from Spanish to American, it means that the invoked provision of the Spanish
Penal Code had been automatically abrogated. The Court determined Article 256 of the Spanish Penal Code to be
‘political’ in nature for it is about the relation of the State to its inhabitants, thus, the Court emphasized that ‘it is a
general principle of the public law that on acquisition of territory, the previous political relations of the ceded
region are totally abrogated.’ Hence, Article 256 of the Spanish Penal Code is considered no longer in force and
cannot be applied to the present case. Therefore, respondent was acquitted.
GROUP 2
Great Britain vs. Costa Rica (Tinoco Case) - BABON
Mexico vs. US – BAUTISTA
Republic of the Philippines vs. Ferdinand Marcos – MONTORO
SGS Societe Generale de Surveillances S.A vs. Republic of the Philippines –
PORTILLO
Santos III vs. Northwest Orient Airlines – RUMA
Tanada III vs. Angara – SANTOS
Pimentel vs. Executive Secretary – BABON
Constatino vs. Cuisia - BAUTISTA
Saguisag vs. Executive Secretary – MONTORO
The Province of North Cotabato et. al. vs. The Government of the Republic of the
Philippines et. al. – PORTILLO
Western Sahara Advisory Opinion – RUMA
Island of Palmas Case – SANTOS
Arthur Lim et. al. vs. Executive Secretary – SY
BAYAN et. al. vs. Executive Secretary – VALLEJO
Arbitration between Great Britain and Costa Rica
William Taft, Sole Arbitrator
October 18, 1923

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

Issue:
Whether or not a government needs to conform to a previous constitution if the
government had established itself and maintained a peaceful de facto administration?

Ruling:
No. A government need not conform to a previous constitution if the government
had established itself and maintained a peaceful de facto administration and non-
recognition of the government by other government does not destroy the de facto status
of the government. The non-recognition of the Tinoco regime by Great Britain did not
dispute the de facto existence of that regime. There is no estoppel since the successor
government had not been led by British non-recognition to change its position.

Estoppel was not found by the arbitrator. The evidence of the de facto status of
the Tinoco‘s regime was not outweighed by the evidence of non-recognition. This
implies that valid contracts may be formed by unrecognized government.

BABON, Jacqueline O.
Avena and Other Mexican Nationals (Mexico v. United States of America)

Overview of the case: On 9 January 2003, Mexico brought a case against the United
States of America in a dispute concerning alleged violations of Articles 5 and 36 of the
Vienna Convention on Consular Relations of 24 April 1963 with respect to 54 Mexican
nationals who had been sentenced to death in certain states of the United States. At the
same time as its Application, Mexico also submitted a request for the indication of
provisional measures, among other things so that the United States would take all
measures necessary to ensure that no Mexican national was executed and no action
was taken that might prejudice the rights of Mexico or its nationals with regard to any
decision the Court might render on the merits of the case. After hearing the Parties at
public hearings on the provisional measures held on 21 January 2003, the Court, on 5
February 2003, made an Order, by which it decided that the :
―United States of America sh[ould] take all measures necessary to ensure that Mr.
Cesar Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo Torres
Aguilera [three Mexican nationals] [we]re not executed pending final judgment in these
proceedings‖,
that the ―United States of America sh[ould] inform the Court of all measures taken in
implementation of [that] Order‖, and that the Court would remain seised of the matters
which formed the subject of that Order until the Court had rendered its final judgment.
The same day, it issued another Order fixing 6 June 2003 as the time-limit for the filing
of the Memorial by Mexico and 6 October 2003 as the time-limit for the filing of the
Counter-Memorial by the United States of America. The President of the Court
subsequently extended those dates respectively to 20 June 2003 and 3 November
2003. Those pleadings were filed within the time-limits thus extended.
After holding public hearings in December 2004, the Court rendered its Judgment on 31
March 2004. Mexico had amended its claims during the written phase of the
proceedings and again at the oral proceedings, so that the Court ultimately ruled on the
cases of 52 (rather than 54) Mexican nationals.
The Court first considered four objections by the United States to its jurisdiction and five
objections to admissibility. Mexico had argued that all of these objections were
inadmissible because they had been submitted outside the time-limit prescribed by the
Rules of Court, but the Court did not accept this. The Court then dismissed the United
States objections, whilst reserving certain of them for consideration at the merits stage.
Ruling on the merits of the case, the Court began by considering whether the 52
individuals concerned were solely of Mexican nationality. Finding that the United States
had failed to show that certain of them were also United States nationals, the Court held
that the United States was under an obligation to provide consular information pursuant
to Article 36, paragraph 1 (b), of the Vienna Convention in respect of all 52 Mexican
nationals. Regarding the meaning to be given to the phrase ―without delay‖ in Article 36
(1) (b), the Court further held that there is an obligation to provide consular information
as soon as it is realized that the arrested person is a foreign national, or that there are
grounds for thinking that he is probably a foreign national. The Court found that, in all of
the cases except one, the United States had violated its obligation to provide the
required consular information. Taking note of the interrelated nature of the three
subparagraphs (a), (b) and (c) of paragraph 1 of Article 36 of the Vienna Convention,
the Court then went on to find that the United States had, in 49 cases, also violated the
obligation to enable Mexican consular officers to communicate with, have access to and
visit their nationals and, in 34 cases, to arrange for their legal representation.
In relation to Mexico‘s arguments concerning paragraph 2 of Article 36 and the right of
its nationals to effective review and reconsideration of convictions and sentences
impaired by a violation of Article 36 (1), the Court found that, in view of its failure to
revise the procedural default rule since the Court‘s decision in the LaGrand case, the
United States had in three cases violated paragraph 2 of Article 36, although the
possibility of judicial re-examination was still open in the 49 other cases.
In regard to the legal consequences of the proven violations of Article 36 and to
Mexico‘s requests for restitutio in integrum, through the partial or total annulment of
convictions and sentences, the Court pointed out that what international law required
was reparation in an adequate form, which in this case meant review and
reconsideration by United States courts of the Mexican nationals‘ convictions and
sentences. The Court considered that the choice of means for review and
reconsideration should be left to the United States, but that it was to be carried out by
taking account of the violation of rights under the Vienna Convention. After recalling that
the process of review and reconsideration should occur in the context of judicial
proceedings, the Court stated that the executive clemency process was not sufficient in
itself to serve that purpose, although appropriate clemency procedures could
supplement judicial review and reconsideration. Contrary to Mexico‘s claims, the Court
found no evidence of a regular and continuing pattern of breaches of Article 36 by the
United States. The Court moreover recognized the efforts of the United States to
encourage compliance with the Vienna Convention, and took the view that that
commitment provided a sufficient guarantee and assurance of non-repetition as
requested by Mexico.
The Court further observed that, while the present case concerned only Mexican
nationals that should not be taken to imply that its conclusions did not apply to other
foreign nationals finding themselves in similar situations in the United States. Finally,
the Court recalled that the United States had violated paragraphs 1 and 2 of Article 36
in the case of the three Mexican nationals concerned by the Order of 5 February 2003
indicating provisional measures, and that no review and reconsideration of conviction
and sentence had been carried out in those cases. The Court considered that it was
therefore for the United States to find an appropriate remedy having the nature of
review and reconsideration according to the criteria indicated in the Judgment.

BAUTISTA, Frances Anne C.


Republic of the Philippines vs. Ferdinand Marcos
November 26, 1986, US Court of Appeals

Facts:
The Philippine Government created the Presidential Commission for Good
Government which is specifically directed to investigate and cause to be adjudicated in
the Philippines any meritorious claims that specific properties or assets are the product
of theft from the government and also to take steps to retrieve any government property
taken by the Marcoses.

The Ferdinand and Imelda Marcos, allegedly, did business in New York and use
agents, representatives, and nominees in New York and elsewhere to assist in the
operation of the properties. Specifically, the complaint charges that there was a
conspiracy among Ferdinand and Imelda Marcos; Ralph and Joseph Bernstein; Gliceria
Tantoco, a close friend and business associate of the Marcoses who until February
1985 dealt with the Bernsteins in New York; Vilma Bautista, who worked in the
Philippine consulate in New York and the Philippine Mission to the United Nations and
acted as personal secretary to Imelda Marcos in New York; Antonio Floirendo, a
Philippine plantation owner and businessman who made a $600,000 payment as a
deposit on Herald Center and claims to be the owner of Ancor Holdings; and numerous
other persons, including Fe Giminez, personal secretary and confidante of Imelda
Marcos. By virtue of the alleged conspiracy, assets and properties acquired by or for the
benefit of the Marcoses were placed in the names of nominees. In this way the five
properties in New York were allegedly purchased for the benefit of the Marcoses from
the proceeds of moneys and assets stolen as stated above from the Philippine
government.

A writ of preliminary injunction was then filed against the subject properties by
the Republic.

Issue:
Whether or not the US courts have jurisdiction and whether the allegations are
sufficient state a claim for relief.

Ruling:
US Supreme Court held that federal jurisdiction is present in any event because
the claim raises, as a necessary element, the question whether to honor the request of
a foreign government that the American courts enforce the foreign government's
directives to freeze property in the United States subject to future process in the foreign
state.

Weighing in favor of the application of federal common law here is the fact that
prior to the filing of the complaint in the New York State Supreme Court, The Republic
of the Philippines had already promulgated Executive Order No. 1 appointing the
President's Commission on Good Government and charging it with the recovery of all ill-
gotten wealth accumulated "by the former President." And, prior to the removal to
federal court, Executive Order No. 2 had been promulgated freezing the assets of the
Marcoses in the Philippines and appealing to foreign governments to freeze assets in
their countries. Whether any confiscatory action by the Philippines will be entitled to
credit in the United States courts is a question for another day, but it is surely a question
that will be governed by federal law within the original jurisdiction of the court under of
the Judicial Code.

US Supreme Court also held that The Republic has offered sufficient evidence to
justify the issuance of a preliminary injunction, evidence of both the Marcoses' beneficial
ownership of the properties involved and the irreparability of the harm that would result
if no injunction freezing the assets pending final determination of their ownership were
issued. Additionally, in seeking to state a claim for relief under the federal or state
common law theory of constructive trust and equitable lien, The Republic has also
presented evidence that the funds used to acquire the properties were illegally obtained.

MONTORO, Juan Miguel


SGS v. Philippines
SGS Société Générale de Surveillance S.A. v. Republic of the Philippines
(ICSID Case No. ARB/02/6)

Facts:
On August 23, 1991, SGS Société Générale de Surveillance S.A. (―SGS‖),
a Swiss corporation, concluded a three-year agreement with the Philippines (the
―CISS Agreement‖), under which SGS would provide specialized services to
assist in improving the customs clearance and control processes of the
Philippines. Under the CISS Agreement, SGS agreed to carry out, on an
exclusive basis, pre-shipment inspection in any country of export to the
Philippines. The CISS Agreement was subsequently amended and extended
by the parties until March 31, 2000, at which time SGS‘s services under the
CISS Agreement were discontinued primarily due to implementation of the
GATT-‐-WTO Valuation System which reduced the need for physical
inspection of imports.

During the period of performance of the CISS Agreement, SGS invoiced


the BOC approximately $680 million for inspections performed in a large
number of countries. Of the amount involved for these inspections, some $540
million was actually paid. SGS thus claimed CHF 202,413,047.36 (approximately
$140 million) unpaid under the amended CISS Agreement. In March 2001, the
Secretary of Finance of the Philippines directed the BOC to establish a
joint review team with SGS to determine the total amount due. The BOC-‐-SGS
Review Team reported on October 25, 2001 that of the amount claimed
by SGS: (i)CHF 192,420,782.26 was payable to SGS; (ii) CHF 3,737,190.78
should be withheld in favor of the Philippines; and (iii) the balance of CHF
9,992,265.10 was unresolved. After SGS indicated that it was prepared to
forego payment of the unresolved balance (CHF 9,992,265.10) if agreement
could be reached on financing the amount determined by the Review
Team to be payable to SGS (CHF 192,420,782.26), the Secretary of Finance
wrote to the financial adviser of SGS stating: ―[w]e have no reason to reject
the findings of the said report and, accordingly, efforts may now be directed to
finding ways and means to settle the amount unanimously determined to be
payable to SGS, subject to applicable laws and regulations.‖

In January 2002, the Philippines made ―a token good faith payment‖


of PHP 1 million (approximately $20,000) to SGS. No further payments were
made or agreements reached. As a consequence, SGS commenced ICSID
arbitration proceedings on April 26, 2002 pursuant to the Swiss Confederation--
‐-Republic of the Philippines Agreement on the Promotion and Reciprocal
Protection of Investments (the ―BIT‖). The claimant corporation invoked the provisions
of the bilateral agreement of 1997 between the Swiss Confederation and the Republic
of the Philippines governing the protection of Swiss Investments (BIT).
According to Article 12 of the CISS Agreement between the parties,
―The provisions of this agreement shall be governed in all respects by and
construed in accordance with the laws of the Philippines. All actions
concerning disputes in connection with the obligations of either party to
this agreement shall be filed at the Regional Trial Courts of Makati or
Manila.
(Emphasis supplied)‖

The respondent State raised objections to the jurisdiction of the tribunal during
the Initial Submission on Jurisdiction due to the express provision in the contract. The
claimant corporation however submitted that while an exclusive ―forum-only‖ choice of
law exists in the CISS Agreement, the claim took on the character of a dispute which
falls under the ―umbrella clause‖ embodied in the BIT, which the ICSID had jurisdiction
over, specifically, Article 25 (1) of the treaty:

―The jurisdiction of the Centre shall extend to any legal dispute arising
directly out of an investment, between a Contracting State (or any
constituent subdivision or agency of a Contracting State designated to the
Centre by that State) and a national of another Contracting State, which
the parties to the dispute consent in writing to submit to the Centre. When
the parties have given their consent, no party may withdraw its consent
unilaterally.‖

The respondent State entered its objection to the filing of the case in the ICSID,
citing that such an ―umbrella clause‖ is not applicable in this case, and as such, the
ICSID cannot exercise jurisdiction over the Republic of the Philipines. The respondent
State likewise observed that:

―(A)lmost any contractual dispute between a State and a foreign party can
be referred to ICSID provided that there is a BIT in force between that
State and the State of the nationality of the foreign party. Jurisdiction
provisions in such contracts, even when providing for exclusive
jurisdiction in national courts, will always be capable of being by-passed
and ICSID tribunals will be left to decide all the relevant contractual issues
by reference to whichever national law constitutes the proper law of the
contract in question.‖

Issue:
Which among two conflicting sources of law should be made to apply: a contract
containing an exclusive forum law provision, or a treaty between two parties for the
protection of investments?

Ruling:
The Decision of the ICSID
The Tribunal held that it has jurisdiction over the dispute pursuant
to Article VIII(2) of the BIT, in combination with Articles X(2) and IV of
the BIT. The Tribunal dismissed SGS‘s expropriation claims based on Article
VI of the BIT.
A majority of the Tribunal held that SGS is bound by the terms of the
exclusive jurisdiction clause in Article 12 of the CISS Agreement to establish
the quantum or content of the obligation which, under Article X(2) of the BIT,
the Philippines is required to observe. The majority therefore ruled that
the arbitration proceedings should be stayed pending a decision on the
amount due but unpaid under the CISS Agreement, a matter which (if not
agreed by the parties) is to be determined by the agreed contractual forum
under the CISS Agreement. The proceedings would resume on the request
of either party once this condition for admissibility had been satisfied.

PORTILLO, Mariel Joyce


Tanada vs. Angara
G.R. No. 118295, May 02, 1997
Facts:
This is a case petition by Sen. Wigberto Tanada, together with other lawmakers,
taxpayers, and various NGO‘s to nullify the Philippine ratification of the World Trade
Organization (WTO) Agreement.Petitioners believe that this will be detrimental to the
growth of our National Economy and against to the ―Filipino First‖ policy. The WTO
opens access to foreign markets, especially its major trading partners, through the
reduction of tariffs on its exports, particularly agricultural and industrial products. Thus,
provides new opportunities for the service sector cost and uncertainty associated with
exporting and more investment in the country. These are the predicted benefits as
reflected in the agreement and as viewed by the signatory Senators, a ―free market‖
espoused by WTO.

Issue:
Whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the Senate in giving its concurrence of the said
WTO agreement.

Rulling:
In its Declaration of Principles and state policies, the Constitution ―adopts the
generally accepted principles of international law as part of the law of the land, and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity , with
all nations. By the doctrine of incorporation, the country is bound by generally accepted
principles of international law, which are considered automatically part of our own laws.
Pacta sunt servanda – international agreements must be performed in good faith. A
treaty is not a mere moral obligation but creates a legally binding obligation on the
parties.Through WTO the sovereignty of the state cannot in fact and reality be
considered as absolute because it is a regulation of commercial relations among
nations. Such as when Philippines joined the United Nations (UN) it consented to
restrict its sovereignty right under the ―concept of sovereignty as autolimitation.‖ What
Senate did was a valid exercise of authority. As to determine whether such exercise is
wise, beneficial or viable is outside the realm of judicial inquiry and review. The act of
signing the said agreement is not a legislative restriction as WTO allows withdrawal of
membership should this be the political desire of a member. Also, it should not be
viewed as a limitation of economic sovereignty. WTO remains as the only viable
structure for multilateral trading and the veritable forum for the development of
international trade law. Its alternative is isolation, stagnation if not economic self-
destruction. Thus, the people be allowed, through their duly elected officers, make their
free choice. Petition is DISMISSED for lack of merit.

SANTOS, Frances Cyril


Pimentel Jr. vs. Office of the Executive Secretary
G.R. no. 158088, July 6, 2005

Facts:
Petitioners filed a petition to compel the Office of the Executive Secretary and the
Department of Foreign Affairs to transmit the signed text of the Rome Statute to the
Senate of the Philippines for ratification. They claim that ratification of a treaty, under
both domestic law and international law, is a function of the Senate. Hence, it is the duty
of the executive department to transmit the signed copy of the Rome Statute to the
Senate to allow it to exercise its discretion with respect to ratification of treaties.
Petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute
under treaty law and customary international law. Petitioners invoke the Vienna
Convention on the Law of Treaties enjoining the states to refrain from acts which would
defeat the object and purpose of a treaty when they have signed the treaty prior to
ratification unless they have made their intention clear not to become parties to the
treaty. Respondents argue that the executive department has no duty to transmit the
Rome Statute to the Senate for concurrence.

Issue:
Whether the Executive Secretary and the Department of Foreign Affairs have a
ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a
member of the Philippine Mission to the United Nations even without the signature of
the President?

Ruling:
The Supreme Court ruled in the negative. The President, being the head of state,
is regarded as the sole organ and authority in external relations and is the country‘s sole
representative with foreign nations. As the chief architect of foreign policy, the President
acts as the country‘s mouthpiece with respect to international affairs. Hence, the
President is vested with the authority to deal with foreign states and governments,
extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treaty-making, the
President has the sole authority to negotiate with other states.

It should be emphasized that under the Constitution, the power to ratify is vested
in the President, subject to the concurrence of the Senate. The role of the Senate,
however, is limited only to giving or withholding its consent, or concurrence, to the
ratification. Hence, it is within the authority of the President to refuse to submit a treaty
to the Senate or, having secured its consent for its ratification, refuse to ratify it.

BABON, Jacqueline O.
Spouses Renato Constantino, Jr. and Lourdes Constantino vs Jose Cuisia
472 SCRA 505

Facts:
During the Corazon Aquino regime, her administration came up with a scheme to
reduce the country‘s external debt. The solution resorted to was to incur foreign debts.
Three restructuring programs were sought to initiate the program for foreign debts –
they are basically buyback programs and bond-conversion programs. The spouses
Renato Constantino, Jr. and Lourdes Constantino, as a taxpayers, and in behalf of their
minor children who are Filipino citizens, together with FFDC (Freedom From Debt
Coalition) averred that the buyback and bond-conversion schemes were onerous and
they do not constitute the loan ―contract‖ or ―guarantee‖ contemplated in Sec. 20, Art.
VII of the Constitution. And assuming that the President has such power, unlike other
powers which may be validly delegated by the President, the power to incur foreign
debts is expressly reserved by the Constitution in the person of the President, hence,
the respondents herein, Central Bank Governor Josse Cuisia et al, cannot incur debts
for the Philippines or such power can be delegated to them. Constantino argue that the
gravity by which the exercise of the power will affect the Filipino nation requires that the
President alone must exercise this power. They argue that the requirement of prior
concurrence of an entity specifically named by the Constitution–the Monetary Board–
reinforces the submission that not respondents but the President ―alone and personally‖
can validly bind the country. Hence, they would like Cuisia et al to stop acting pursuant
to the said scheme.

Issue:
Whether or not the President of the Philippines can validly delegate her debt
power to the respondents?

Ruling:
Yes. There is no question that the president has borrowing powers and that the
President may contract or guarantee foreign loans in behalf of this country with prior
concurrence of the Monetary Board. It makes no distinction whatsoever and the fact that
a debt or a loan may be onerous is irrelevant. On the other hand, the President can
delegate this power to her direct subordinates. The evident exigency of having the
Secretary of Finance implement the decision of the President to execute the debt-relief
contracts is made manifest by the fact that the process of establishing and executing a
strategy for managing the government‘s debt is deep within the realm of the expertise of
the Department of Finance, primed as it is to raise the required amount of funding,
achieve its risk and cost objectives, and meet any other sovereign debt management
goals. If the President were to personally exercise every aspect of the foreign borrowing
power, he/she would have to pause from running the country long enough to focus on a
welter of time-consuming detailed activities–the propriety of incurring/guaranteeing
loans, studying and choosing among the many methods that may be taken toward this
end, meeting countless times with creditor representatives to negotiate, obtaining the
concurrence of the Monetary Board, explaining and defending the negotiated deal to the
public, and more often than not, flying to the agreed place of execution to sign the
documents. This sort of constitutional interpretation would negate the very existence of
cabinet positions and the respective expertise which the holders thereof are accorded
and would unduly hamper the President‘s effectivity in running the government. The act
of the Cuisia et al are not unconstitutional.

Exception
There are certain acts which, by their very nature, cannot be validated by subsequent
approval or ratification by the President. There are certain constitutional powers and
prerogatives of the Chief Executive of the Nation which must be exercised by him in
person and no amount of approval or ratification will validate the exercise of any of
those powers by any other person. Such, for instance, in his power to suspend the writ
of habeas corpus and proclaim martial law and the exercise by him of the benign
prerogative of pardon (mercy).
There are certain presidential powers which arise out of exceptional circumstances, and
if exercised, would involve the suspension of fundamental freedoms, or at least call for
the supersedence of executive prerogatives over those exercised by co-equal branches
of government. The declaration of martial law, the suspension of the writ of habeas
corpus, and the exercise of the pardoning power notwithstanding the judicial
determination of guilt of the accused, all fall within this special class that demands the
exclusive exercise by the President of the constitutionally vested power. The list is by no
means exclusive, but there must be a showing that the executive power in question is of
similar gravitas and exceptional import.

BAUTISTA, Frances Anne C.


Saguisag vs. Executive Secretary
GR No. 212426 and 212444 , January 12, 2016

Facts:
The case before the Court is a Motion for Reconsideration questioning the
constitutionality of the Enhanced Defense Cooperation Agreement between the
Republic of the Philippines and the United States of America.

EDCA authorizes the U.S. military forces to have access to and conduct activities
within certain "Agreed Locations" in the country. It was not transmitted to the Senate on
the executive's understanding that to do so was no longer necessary. Accordingly, in
June 2014, the Department of Foreign Affairs (DFA) and the U.S. Embassy exchanged
diplomatic notes confirming the completion of all necessary internal requirements for the
agreement to enter into force in the two countries.

According to the Philippine government, the conclusion of EDCA was the result
of intensive and comprehensive negotiations in the course of almost two years. After
eight rounds of negotiations, the Secretary of National Defense and the U.S.
Ambassador to the Philippines signed the agreement on 28 April 2014. President
Benigno S. Aquino III ratified EDCA on 6 June 2014. The OSG clarified during the oral
arguments that the Philippine and the U.S. governments had yet to agree formally on
the specific sites of the Agreed Locations mentioned in the agreement.

Two petitions for certiorari were thereafter filed before us assailing the
constitutionality of EDCA. They primarily argue that it should have been in the form of a
treaty concurred in by the Senate, not an executive agreement.

On 10 November 2015, months after the oral arguments were concluded and the
parties ordered to file their respective memoranda, the Senators adopted Senate
Resolution No. (SR) 105. The resolution expresses the "strong sense" of the Senators
that for EDCA to become valid and effective, it must first be transmitted to the Senate
for deliberation and concurrence.

Issues:
1. Whether the President may enter into an executive agreement on foreign military
bases, trooped, and facilities?
2. Whether the provisions under the EDCA are consistent with the constitution, as
well as existing laws and treaties?

Ruling:
Despite the President's roles as defender of the State and sole authority in
foreign relations, the 1987 Constitution expressly limits his ability in instances when it
involves the entry of foreign military bases, troops or facilities. The initial limitation is
found in Section 21 of the provisions on the Executive Department: "No treaty or
international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate." The specific limitation is given by Section 25 of
the Transitory Provisions, the full text of which reads as follows:

SECTION 25. After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America concerning Military
Bases, foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the
other contracting State.

However, the Court found that EDCA did not go beyond the framework. The
entry of US troops has long been authorized under a valid and subsisting treaty, which
is the Visiting Forces Agreement (VFA). Reading the VFA along with the longstanding
Mutual Defense Treaty (MDT) led this Court to the conclusion that an executive
agreement such as the EDCA was well within the bounds of the obligations imposed by
both treaties.

Thus, we find no reason for EDCA to be declared unconstitutional. It fully


conforms to the Philippines' legal regime through the MDT and VFA. It also fully
conforms to the government's continued policy to enhance our military capability in the
face of various military and humanitarian issues that may arise.

MONTORO, Juan Miguel


Province of North Cotabato v. Government of the Republic of the Philippines
G.R. Nos. 183591, 183752, 183893, 183951, & 183962, October 14, 2008

Facts:
The Government of the Republic of the Philippines (GRP), represented by the
GRP Peace Panel and the Presidential Adviser on the Peace Process (PAPP), and the
Moro Islamic Liberation Front (MILF) were scheduled to sign the Memorandum of
Agreement on the Ancestral Domain (MOA-AD) Aspect of the previous GRP-MILF
Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

In overview, the MOA-AD states that the parties acknowledges the Bangsamoro
People as having the right to self-governance and the creation of the Bangsamoro
Juridical Entity (BJE) to which it grants the authority and jurisdiction over the Ancestral
Domain and Ancestral Lands of the Bangsamoro.

The signing of the MOA-AD between the GRP and the MILF did not materialize
when the Province of North Cotabato and Vice-Governor Emmanuel Piñol filed a
petition for Mandamus and Prohibition with Prayer for the Issuance of Writ of
Preliminary Injunction and Temporary Restraining Order. The petitioners are invoking
the right to information on matters of public concern. Also, petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of the MOA-
AD including its attachments, and to prohibit the slated signing of the MOA-AD, pending
the disclosure of the contents of the MOA-AD and the holding of a public consultation
thereon. The petitioners invoke their constitutional right to information on matters of
public concern as provided in Section 7, Article III of the Bill of Rights. Over all, they are
praying that the MOA-AD be declared unconstitutional. The Supreme Court then
ordered a Temporary Restraining Order.

The respondents stated that the Executive Department shall thoroughly review
the MOA-AD and pursue the further negotiations to address the issues hurled against it
and prayed to dismiss the case. The oral arguments were heard on August 15, 22, and
29, 2008.

Issues:
1. Whether or not respondents violate constitutional and statutory provisions on
public consultation and the right to information when they negotiated and later
initialed the MOA-AD?
2. Whether or not the contents of the MOA-AD violate the Constitution and the
laws?

Ruling:
1. YES. At least three pertinent laws animate these constitutional imperatives and
justify the exercise of the people‘s right to be consulted on relevant matters
relating to the peace agenda:
a. EO No. 3, which enumerates the functions and responsibilities of the
PAPP, is replete with mechanics for continuing consultations on both
national and local levels and for a principal forum for consensus-building.
In fact, it is the duty of the PAPP to conduct regular dialogues to seek
relevant information, comments, advice, and recommendations from
peace partners and concerned sectors of society;
b. RA No. 7160 (LGC) requires all national offices to conduct consultations
before any project or program critical to the environment and human
ecology including those that may call for the eviction of a particular group
of people residing in such locality, is implemented therein. The MOA-AD is
one peculiar program that unequivocally and unilaterally vests ownership
of a vast territory to the Bangsamoro people, which could pervasively and
drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment;
c. RA No. 8371 (IPRA) provides for clear-cut procedure for the recognition
and delineation of ancestral domain, which entails, among other things,
the observance of the free and prior informed consent of the Indigenous
Cultural Communities/Indigenous Peoples (ICC/IP).

The invocation of the doctrine of executive privilege as a defense to the general


right to information or the specific right to consultation is untenable. The various
explicit legal provisions fly in the face of executive secrecy. In any event,
respondents effectively waived such defense after it unconditionally disclosed the
official copies of the final draft of the MOA-AD, for judicial compliance and public
scrutiny.

In sum, the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as
mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The
furtive process by which the MOA-AD was designed and crafted runs contrary to
and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion
of positive duty and a virtual refusal to perform the duty enjoined.

2. NO. The MOA-AD cannot be reconciled with the present Constitution and laws.
Not only its specific provisions but the very concept underlying them, namely, the
associative relationship envisioned between the GRP and the BJE, are
unconstitutional, for the concept presupposes that the associated entity is a state
and implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until that
framework is amended, the same does not cure its defect. The inclusion of
provisions in the MOA-AD establishing an associative relationship between the
BJE and the Central Government is, itself, a violation of the Memorandum of
Instructions From the President dated March 1, 2001, addressed to the
government peace panel. Moreover, as the clause is worded, it virtually
guarantees that the necessary amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel nor the President
herself is authorized to make such a guarantee. Upholding such an act would
amount to authorizing a usurpation of the constituent powers vested only in
Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome
of the amendment process is through an undue influence or interference with that
process.

While the MOA-AD would not amount to an international agreement or unilateral


declaration binding on the Philippines under international law, respondents' act of
guaranteeing amendments is, by itself, already a constitutional violation that
renders the MOA-AD fatally defective.

PORTILLO, Mariel Joyce


SUMMARY OF WESTERN SAHARA ADVISORY OPINION

On December 17, 1974, the UN General Assembly by Resolution 3292 requested


the ICJ to give an advisory opinion on the following questions:

1. Was Western Sahara (Rio de Oro and Sakiet el Hamra) at the time of
colonization by Spain a territory belonging to no one? (terra nullius)
If the answer to the first question is in the negative,

2. What were the legal ties between this territory and the Kingdom of Morocco and
the Mauritian entity?1
This request took place in the context of decolonization of Western Sahara, formerly
a protectorate of Spain. Morocco and Mauritania are rival claimants, both arguing that
portions of the disputed area formed part of their pre-colonial territories and seeking to
have the former colony re-integrated to their respective national territories.

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

The Court then proceeded to spend much more reasoning on the second question,
asking what were the legal ties of Western Sahara with the Kingdom of Morocco and
the Mauritanian entity. With a view to the decolonization context of the question the
Court decided that the notion ‗legal ties‘ ‗may affect the policy to be followed in the
decolonization of Western Sahara‘ and would thus include not only ties established
directly with the territory but also take reference to the people who may be found in the
respective territory. In Western Sahara there had been nomadic tribes of Islamic faith
with their own customary law.

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

Since there did not exist, at the time of Western Sahara‘s colonization, a
Mauritanian State, the Court confined itself to examine, with regard to Mauritania, legal
ties other than those of State sovereignty. The Court held that the ‗Mauritanian entity‘,
identical with the so-called Shinguitti country, did not enjoy any form of sovereignty
since ‗it did not have the character of a personality or corporate entity distinct from the
several emirates and tribes which composed it‘. However, the nomadic peoples of this
region had in the relevant period possessed rights, eg concerning grazing pastures,
cultivated land, and wells in Western Sahara and the ‗Mauritanian entity‘ alike which
constituted legal ties between these two territories.

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

Judges Gros and Ignacio-Pinto declared that the first question was not a legal
question but a purely academic one, not serving any useful purpose and loaded in the
sense that it led to the expected answer.

RUMA, Sean Karl A.


Island of Palmas Case
(United States v. The Netherlands)
April 04, 1928

Facts:
Both the United States (P) laid claim to the ownership of the Island of Palmas.
While the U.S. (P) maintained that it was part of the Philippines, the Netherlands (D)
claimed it as their own. The claim of the U.S. (P) was back up with the fact that the
islands had been ceded by Spain by the Treaty of Paris in 1898, and as successor to
the rights of Spain over the Philippines, it based its claim of title in the first place on
discovery. On the part of the Netherlands (D), they claimed to have possessed and
exercised rights of sovereignty over the island from 1677 or earlier to the present.

Issue:
Can a title which is inchoate prevail over a definite title found on the continuous
and peaceful display of sovereignty?

Rulling:
No. A title that is inchoate cannot prevail over a definite title found on the
continuous and peaceful display of sovereignty. The peaceful and continuous display of
territorial sovereignty is as good as title. However, discovery alone without subsequent
act cannot suffice to prove sovereignty over the island. The territorial sovereignty of the
Netherlands (D) was not contested by anyone from 1700 to 1906. The title of discovery
at best an inchoate title does not therefore prevail over the Netherlands (D) claims of
sovereignty. Evidence of contracts made by the East India Company and the
Netherlands (D) was examined by the arbitrator. The claims made by the Netherlands
(D) were also based on the premise of the convention it had with the princes and native
chieftains of the islands. Hence, at the time of the Treaty of Paris in 1898, Spain was
found not to have dominion over the island, 4,700 private U.S. claims, ordered payment
by Iran (D) to U.S. nationals amounting to over $2.5 billion.

SANTOS, Frances Cyril


Arthur d. Lim vs. Hon. Executive secretary
GR No. 151445

Facts:
Arthur D. Lim and Paulino P. Ersando filed a petition for certiorari and prohibition
attacking the constitutionality of ―Balikatan-02-1‖. They were subsequently joined by
SANLAKAS and PARTIDO NG MANGGAGAWA, both party-list organizations, who filed
a petition-in-intervention. Lim and Ersando filed suits in their capacities as citizens,
lawyers and taxpayers. SANLAKAS and PARTIDO on the other hand, claimed 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.

The petitioners alleged that ―Balikatan-02-1‖ is not covered by the Mutual Defense
Treaty (MDT) between the Philippines and the United States. Petitioners posited that
the MDT only provides for mutual military assistance in case of armed attack by an
external aggressor against the Philippines or the US. Petitioners also claim that the
Visiting Forces Agreement (VFA) does not authorize American Soldiers to engage in
combat operations in Philippine Territory.

Issue:
Is the ―Balikatan-02-1‖ inconsistent with the Philippine Constitution?

Ruling:
The MDT is the core of the defense relationship between the Philippines and the
US and it is the VFA which gives continued relevance to it. Moreover, it is the VFA that
gave legitimacy to the current Balikatan exercise.

The constitution leaves us no doubt that US Forces are prohibited from engaging war
on Philippine territory. This limitation is explicitly provided for in the Terms of Reference
of the Balikatan exercise. The issues that were raised by the petitioners was only based
on fear of future violation of the Terms of Reference.

Based on the facts obtaining, the Supreme court find that the holding of ―Balikatan-02-1‖
joint military exercise has not intruded into that penumbra of error that would otherwise
call for the correction on its part.

The petition and the petition-in-intervention is DISMISSED.

SY. Princess Janine R.


Bayan vs. Executive Secretary Ronaldo Zamora
G.R. No. 138570

FACTS:

The Philippines and the United States entered into a Mutual Defense Treaty
wherein, the parties agreed to respond to any external armed attack on their territory,
armed forces, public vessels, and aircraft. President Joseph E. Estrada, through
respondent Secretary of Foreign Affairs, ratified the VFA and the former, acting through
respondent Executive Secretary Ronaldo Zamora transmitted to the Senate of the
Philippines, the Instrument of Ratification, the letter of the President and the VFA, for
concurrence pursuant to Section 21, Article VII of the 1987 Constitution. Petitioners
assailed the constitutionality of the VFA and imputed to herein respondents alleging
grave abuse of discretion in ratifying the agreement. Petitioner contends, under the
provision cited, the ―foreign military bases, troops, or facilities‖ may be allowed in the
Philippines unless the following conditions are sufficiently met: a) it must be a treaty, b)
it must be duly concurred in by the senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required by congress, and c) recognized
as such by the other contracting state. Respondents, on the other hand, argue that
Section 21 Article VII is applicable so that, what is requires for such treaty to be valid
and effective is the concurrence in by at least two-thirds of all the members of the
senate.

ISSUES:

1. Whether or not the Petitioners have legal standing as concerned citizens,


taxpayers, or legislators to question the constitutionality of the VFA

2. Whether or not the VFA is governed by section 21, Art. VII, or section 25, Art.
XVIII of the Constitution

Ruling:

1. No. the Petitioners have no standing to bring the suit challenging the
constitutionality of the law. They must first show that the law is invalid and that they
have sustained or is in a danger of sustaining direct injury. Clearly, inasmuch as no
public funds raised by taxation are involved in this case, and in the absence of any
allegation by petitioners that public funds are being misspent or illegally expended,
petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.

2. Section 25, Art. XVIII of the Constitution shall govern. According to Section 21,
Article VII, no treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate. Which requires
only is required for the treaty to be valid and binding in the Philippines. But on the other
side, Section 25, Article XVIII provides ―after the expiration in 1991 of the Agreement
between the Republic of the Philippines and the United States of America concerning
Military Bases, foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting
State.‖ In which, the concurrence of the Senate is deemed only as one of the requisites
to render compliance and to make the agreement binding in the Philippines. We do not
subscribe to the argument that Section 25, Article XVIII is not controlling since no
foreign military bases, but merely foreign troops and facilities, are involved in the VFA.
Foreign military bases, troops or facilities are stated not collectively but separately and
differently, this prohibition is not limited to the entry of troops and facilities without any
foreign bases being established. Foreign bases, foreign troops and foreign facilities are
contemplated differently and separately, any of those standing alone places its
coverage under Section 25, Article XVIII. Undoubtedly, Section 25, Article XVIII, which
specifically deals with treaties involving foreign military bases, troops, or facilities,
should apply in the instant case. To a certain extent, however, the provisions of Section
21, Article VII will find applicability with regard to determining the number of votes
required to obtain the valid concurrence of the Senate.

Vallejo, Christine Emille F.


GROUP 3

CASES

INTERNATIONAL ORGANIZATION

DFA VS NLRC

WAR AND PEACE

TAN SE CHIONG VS DIRECTOR OF PRISONERS

LAUREL VS MISA

KIM CHAN V VALDEZ TAN KEH

OGNIR V DIR OF PRISONS

YAMASHITA VS STYER

HAYA DELA TORRE CASE

AMBATIELOS CASE

NICARAGUA VS US

ICJ ADVISORY OPINION: LEGALITY ON THREAT OR USE IF NUCLEAR WEAPON

YUGOSLAVIA VS US

SAGUISAG VS EXECUTIVE SECRETARY OCHOA

Members:

Albuero, Elead Gaddiel S.

Bulan, Zyka D.

Daludado, Jezza Ynna F.

Jansen, April B.
Madamba, April Easter V.

Malilay, Andrew Mari A.

Marasigan, Clarisse

Paca-anas, Michael Q.

Seares, Jeanelle V.
Department of Foreign Affairs v. National Labor Relations Commission,

G.R. No. 113191, [September 18, 1996], 330 PHIL 573-590

INTERNATIONAL ORGANIZATIONS

Facts:

On 27 January 1993, private respondent initiated NLRC-NCR Case No. 00-01-0690-93 for his
alleged illegal dismissal by Asian Development Bank (―ADB‖) and the latter's violation of the
"labor-only" contracting law. Two summonses were served, one sent directly to the ADB and the
other through the Department of Foreign Affairs ("DFA"), both with a copy of the complainant.
Forthwith, the ADB and the DFA notified respondent Labor Arbiter that the ADB, as well as its
President and Officers, were covered by an immunity from legal process except for borrowings,
guaranties or the sale of securities pursuant to Article 50(1) and Article 55 of the Agreement
Establishing the Asian Development Bank (the "Charter") in relation to Section 5 and Section 44
of the Agreement Between The Bank And The Government Of The Philippines Regarding The
Bank's Headquarters (the "Headquarters Agreement").

The Labor Arbiter took cognizance of the complaint on the impression that the ADB had waived
its diplomatic immunity from suit. Rendered declaring the complainant as a regular employee of
respondent ADB, and the termination of his services as illegal.

The ADB did not appeal the decision. Instead, on 03 November 1993, the DFA referred the
matter to the National Labor Relations Commission ("NLRC"); in its referral, the DFA sought a
"formal vacation of the void judgment." Replying to the letter, the NLRC Chairman, submits that
the request for the 'investigation' of Labor Arbiter Nieves de Castro, by the National Labor
Relations Commission, has been erroneously premised considering that the provision deals with
'a question, matter or controversy within the jurisdiction of Labor Arbiters and the Commission
over labor cases.

Dissatisfied, the DFA lodged the instant petition for certiorari.


The Office of the Solicitor General ("OSG"), in its comment of 26 May 1994, initially assailed
the claim of immunity by the ADB. Subsequently, however, it submitted a Manifestation (dated
20 June 1994) stating, among other things, that "after a thorough review of the case and the
records," it became convinced that ADB, indeed, was correct in invoking its immunity from suit
under the Charter and the Headquarters Agreement.

Issue:

Whether or not the Asian Development Bank enjoys immunity from legal process of every form.

Held: YES.

1. Sovereign immunity extended to Asian Development Bank

as well as to its officers with respect to all acts performed

by them in their official capacity - Exceptions:

The above stipulations of both the Charter and Headquarters Agreement should be able, nay well
enough, to establish that, except in the specified cases o borrowing and guarantee operations, as
well as the purchase, sale and underwriting o securities, the ADB enjoys immunity from legal
process of every form. The Bank's officers on their part, enjoy immunity in respect of all acts
performed by them in their officia capacity. The Charter and the Headquarters Agreement
granting these immunities an privileges are treaty covenants and commitments voluntarily
assumed by the Philippin government which must be respected.

The Courts are duty bound to accept plea of diplomatic

immunity by an International Organization; recognized

and affirmed by the Executive Branch of the Gov‘t.

In World Health Organization vs. Aquino, the court declared:


"It is a recognized principle of international law and under our system of separation of powers
that diplomatic immunity is essentially a political question and courts should refuse to look
beyond a determination by the executive branch of the government, and where the plea of
diplomatic immunity is recognized and affirmed by the executive branch of the government . . .
it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by
the principal law officer of the government, . . . or other officer acting under his direction.
Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction . . .
as to embarrass the executive arm of the government in conducting foreign relations, it is
accepted doctrine that 'in such cases the judicial department of government follows the action of
the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction."'
To the same effect is the decision in International Catholic Migration Commission vs. Calleja,
which has similarly deemed the Memoranda of the Legal Adviser of the Department of Foreign
Affairs to be "a categorical recognition by the Executive Branch of Government that ICMC . . .
enjoy(s) immunities accorded to international organizations" and which determination must be
held

Reason for granting thereof to International

Oraganizations

Being an international organization that has been extended a diplomatic status, the ADB is
independent of the municipal law. In Southeast Asian Fisheries Development Center vs. Acosta,
the Court has cited with approval the opinion of the then Minister of Justice; thus — "One of the
basic immunities of an international organization is immunity from local jurisdiction, i.e., that it
is immune from the legal writs and processes issued by the tribunals of the country where it is
found. The obvious reason for this is that the subjection of such an organization to the authority
of the local courts would afford a convenient medium thru which the host government may
interfere in their operations or even influence or control its policies and decisions of the
organization; besides, such subjection to local jurisdiction would impair the capacity of such
body to discharge its responsibilities impartially on behalf of its member-states.

Acts Jure Imperii and Jure Gestionis

"There are two conflicting concepts of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot, without its
consent, be made a respondent in the Courts of another sovereign. According to the newer or
restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or
acts jure imperii of a state, but not with regard to private act or acts jure gestionis. . . . Certainly,
the mere entering into a contract by a foreign state with a private party cannot be the ultimate
test. Such an act can only be the start of the inquiry. The logical question is whether the foreign
state is engaged in the activity in the regular course of business. If the foreign state is not
engaged regularly in a business or trade, the particular act or transaction must then be tested by
its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act
jure imperii, especially when it is not undertaken for gain or profit." The service contracts
referred to by private respondent have not been intended by the ADB for profit or gain but are
official acts over which a waiver of immunity would not attach.

The Department of Foreign Affairs is in charge

with the determination of persons and institutions

covered by diplomatic immunities

The DFA's function includes, among its other mandates the determination of persons and
institutions covered by diplomatic immunities, a determination which, when challenged, entitles
it to seek relief from the court so as not to seriously impair the conduct of the country's foreign
relations. The DFA must be allowed to plead its case whenever necessary or advisable to enable
it to help keep the credibility of the Philippine government before the international community.
When international agreements are concluded, the parties thereto are deemed to have likewise
accepted the responsibility of seeing to it that their agreements are duly regarded. In our country,
this task falls principally on the DFA as being the highest executive department with the
competence and authority to so act in this aspect of the international arena.

In Public International Law, when a state or international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued
to convey to the court that said defendant is entitled to immunity. In the Philippines, the practice
is for the foreign government or the international organization to first secure an executive
endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign
Office conveys its endorsement to the courts varies.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs
moved with this Court to be allowed to intervene on the side of petitioner. The Court allowed the
said Department to file its memorandum in support of petitioner's claim of sovereign immunity.
In cases where the foreign states bypass the Foreign Office, the courts can inquire into the facts
and
[No. L-5920. June 25, 1955]

TAN SE CHIONG, petitioner, vs. THE DIRECTOR OF POSTS, ET AL., respondents. Se


Chiong vs. Director of Posts, et al., 97 Phil. 971, No. L-5920 June 25, 1955

Facts:

Petition to review the decision of the Auditor General of the Philippines, denying petitioner's
claim for the redemption of 208 money orders issued by the postmaster of Guiuan, Samar. The
Auditor General ruled that such money orders were not redeemable "for the reason that they
were purchased after the official occupation of Samar Province" by the Japanese invader. The
money orders in question were all issued on different dates in 1943.

Issue:

Whether or not the money orders may be redeemed?

Held:

No. The fact that Guiuan, Samar, was occupied by Japanese forces only in July 1942, and that, in
their absence the guerrilla forces assumed control until 1944, when the invader returned, does not
mean that the place was not under effective belligerent occupation by the enemy. Like
possession, belligerent occupation would not require that the occupant should have its feet
continuously planted on every square foot of territory, provided it maintains effective control and
military superiority therein, being able to send, in case of attack, sufficient force to assert its
authority within a reasonable time, as in the case of the British occupation of the Boer Republics
during 1901.

Another point against petitioner's recovery is that he was paid with emergency notes. To be
entitled to redemption, it must appear that the money order was paid for in legal currency,
"Treasury or PNB notes or government checks or warrants, but not scrip money or emergency
notes."
Anastacio Laurel v. Eriberto Misa

77 Phil. 856 (1947)

Facts:

Anastacio Laurel was accused of treason for giving aid and comfort to the enemy during the
Japanese occupation. He filed a petition for habeas corpus contending that he cannot be
prosecuted for the crime of treason defined and penalized by the Article 114 of the Revised Penal
Code on the grounds that the sovereignty of the legitimate government and the allegiance of
Filipino citizens was then suspended, and that there was a change of sovereignty over the
Philippines upon the proclamation of the Philippine Republic.

Issue/s:

1. Is the absolute allegiance of the citizens suspended during Japanese occupation?

2. Is the petitioner subject to Article 114 of the Revised Penal Code?

Held:

1. The absolute and permanent allegiance of the inhabitants of a territory occupied by the
enemy of their legitimate government on sovereign is not abrogated or severed by the enemy
occupation because the sovereignty of the government or sovereign de jure is not transferred to
the occupier. There is no such thing as suspended allegiance.

2. The petitioner is subject to the Revised Penal Code for the change of form of
government does not affect the prosecution of those charged with the crime of treason because it
is an offense to the same government and same sovereign people.
CO KIM CHAN VS. EUSEBIO VALDEZ TAN KEH

Facts:

Petitioner filed petition for mandamus against respondent Judge praying that the latter be
ordered to continue the proceedings in civil case No. 3012 which was initiated under the regime
of the so called Republic of the Philippines established during the Japanese occupations. It was
said that respondent refused to take cognizance of and continue the proceedings in said case on
the ground that the proclamation issued by General McArthur had the effect of invalidating and
nullifying all judicial proceedings and judgments of the courts of the Philippines under the
Philippine Executive Commission and the Republic of the Philippines established during the
Japanese military occupation, and that the lower courts have no jurisdiction to take cognizance of
and continue judicial proceedings pending in the courts in the absence of enabling law granting
such authority. In McArthur‘s proclamation, he declared that:

1. That the Government of the Commonwealth of the Philippines is, subject to the supreme
authority of the Government of the United States, the sole and only government having
legal and valid jurisdiction over the people in areas of the Philippines free of enemy
occupation and control;
2. That the laws now existing on the statute books of the Commonwealth of the Philippines
and the regulations promulgated pursuant thereto are in full force and effect and legally
binding upon the people in the areas of the Philippines free of enemy occupation and
control; and
3. That all laws, regulations and processes of any 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.
Issue/s:

1. Whether or not under the rules of international law the judicial acts and proceedings of
the courts established in the Philippines under the Philippine Executive Commission and
the Republic of the Philippines were good and valid and remained good and valid even
after the liberation or reoccupation of the Philippines by the American and Filipino
forces.
2. Whether the proclamation issued by General McArthur in which he declared ―that all
laws, regulations and processes of any of the government in the Philippines than that of
the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control‖, has invalidated all judgments and
proceedings of the said courts.
3. Whether or not the courts of the Commonwealth have jurisdiction to continue the
proceedings in actions pending in said courts at the time the Philippines were reoccupied
or liberated by the American and Filipino forces.
Held:

1. YES
It is a legal truism in political and international law that all acts and proceedings of the
legislative, executive and judicial departments of a de facto government are good and
valid. The doctrine upon this subject is summed up by Halleck, in his work on
International Law: ―The right of one belligerent to occupy and govern the territory of the
enemy while in its military possession, is one of the incidents of war, and flows directly
from the right to conquer. For authority to establish a government for the territory of the
enemy in his possession, during its military occupation, nor for the rules by which the
powers of such government are regulated and limited. Such authority and such rules are
derived directly from the laws war, as established by the usage of the world, and
confirmed by the writings of publicists and decisions of the courts – in fine, from the law
of nations. The municipal laws of a conquered territory, or the laws which regulate
private rights, continue in force during military occupation, excepts so far as they are
suspended or changed by the acts of conqueror. . . He, nevertheless, has all the powers of
a de facto government, and can at his pleasure either change the existing laws or make
new ones.‖

Thus, the government by the Philippine Executive Commission and the Republic of the
Philippines during the Japanese military occupation being de facto governments, it
necessarily follows that judicial acts and proceedings of the court of justice of those
government, which are not of a political complexion, were good and valid, and, by virtue
of the well-known principle of postliminy in international law, remained good and valid
after the liberation or reoccupation of the Philippines by the American and Filipino forces
under the leadership of General Douglas MacArthur. According to that well-known
principle in international law, the fact that a territory which has been occupied by an
enemy comes again into the power of its legitimate government of sovereignty, ―does
not, except in a very few cases, wipe out the effects of acts done by an invader, which for
one reason or another it is within his competence to do. Thus, judicial acts done under his
control, when they are not of political complexion, administrative acts so done, to the
extent that they take effect during the continuance of his control, and the various acts
done during the same time by private persons under the sanction of municipal law,
remain good.

2. NO
The phrase ―processes of any other government‖ is broad and may not refer only to the
judicial processes, but also to administrative or legislative, as well as constitutional,
processes of the Republic of the Philippines or other governmental agencies established
in the Islands during the Japanese occupation. Taking into consideration the fact that, as
above indicated, according to the well-known principles of international law, all
judgments and judicial proceedings, which are not of a political complexion, of the de
facto governments during the Japanese military occupation were good and valid before
and remained so after the occupied territory had come again into the power of the titular
sovereign, it should be presumed that it was not, and could not have been, the intention of
General MacArthur, in using the phrase ―processes of any government‖ in said
proclamation, to refer to judicial processes, in violation of said principles of international
law.

3. YES
Although in theory the authority of the local civil and judicial administration is
suspended as a matter of course as soon as military occupation takes place, in practice the
invader does not usually take the administration of justice into his own hands but
continues the ordinary courts or tribunals to administer the laws of the country which he
is enjoined, unless absolutely prevented, to respect. As stated in the Executive Order of
President Mckinley to the Secretary of War states that ―in practice, they (municipal laws)
are not usually abrogated but they are allowed to remain in force and to be administered
by the ordinary tribunals substantially as they were before the occupation. This
enlightened practice is, so far as possible, to be adhered to on the present occasion.‖ And
Taylor in this connection says: ―From a theoretical point of view it may be said that the
conqueror is armed with the right to substitute his arbitrary will for all preexisting forms
of government, legislative, executive and judicial. From the stand-point of actual practice
such arbitrary will is restrained by the provision of the law of nations which compels the
conqueror to continue local laws and institution so far as military necessity will permit.‖
Undoubtedly, this practice has been adopted in order that the ordinary pursuits and
business of society may not be unnecessarily deranged, inasmuch as belligerent
occupation is essentially provisional, and the government established by the occupant of
transient character.
Ognir vs Director of Prisons
G.R. No. L-1870, February 27, 1948

Facts:

Convicted by the General Court Martial appointed or convened during the year 1943 by
Colonel Wendel W. Fertig, Commanding Officer of the 10th Military District of Mindanao, and
sentenced to life imprisonment, for violation of the 93rd Article of War of the Philippine Army,
petitioner Ognir filed for habeas corpus, claiming that his imprisonment is null and void because
the said General Court-Martial was not legally constituted, inasmuch as District Commander that
appointed or convened it had no authority to do so, and therefore the judgment of said court is
null and void for want of jurisdiction.

Issue:

Whether or not the General Court-Martial which sentenced the petitioner to life
imprisonment, was legally appointed or convened

Held:

No. The General Court-Martial which sentenced the petitioner to life imprisonment, was not
legally appointed or convened. The appointment of Colonel Fertig as Commander of the 10th
Military District of Mindanao does not carry with it the power to convene the General Court-
Martial. According to Article 8 of Commonwealth No. 408, the only officers who have such
inherent power by virtue of their position are the President of the Commonwealth and the Chief
of Staff of the Philippine Army. All other officers such as the Provost Marshall and
Commanding Officer of a separate brigade or body of troops, and Colonel Fertig may come
within the latter category, can not appoint a General Court Martial unless expressly empowered
by the President to do so.

The Judge Advocate General of the Philippine Army and Solicitor Antonio A. Torres, filed a
motion for reconsideration, raising the ground, among others, that ―that the decision of the
General Court-Martial which convicted the petitioner may be given the same effects as the
actuation of the civil courts during the Japanese occupation.‖

The court, in denying the motion, ruled that:

The contention that the proceedings of the General Court-Martial under consideration ―may be
given effect as the actuation of de facto officers in the same manner as the pronouncement of
Civil Tribunals set up during the second Republic.‖ is untenable; because there is no analogy
between the decision of the courts established by the Military Government or the so-called
second Republic, and that of the General Court-Martial which convicted the petitioner. The
Courts of the Commonwealth legally constituted which were continued during the so-called
Philippine Republic, and the other courts during the Japanese occupation were legally created by
laws which, under the International Law, the military occupant had the right to promulgate.
While the said General Court-Martial was created or convened by an officer having no power or
authority to do so.
G.R. No. L-129, December 19, 1945

TOMOYUKI YAMASHITA

VS.

WILHELM D. STYER, COMMANDING GENERAL, UNITED STATES ARMY


FORCES, WESTERN PACIFIC

Facts:

Tomoyuki Yamashita, erstwhile commanding general of the 14th army group of the
Japanese Imperial Army in the Philippines, and now charged before an American Military
Commission with the most monstrous crimes ever committed against the American and Filipino
peoples, comes to this Court with a petition for habeas corpus and prohibition against Lt. Gen.
Wilhelm D. Styer, Commanding General of the United States Army Forces, Western Pacific. It is
alleged therein that petitioner after his surrender became a prisoner of war of the United States of
America but was later removed from such status and placed in confinement as an accused war
criminal charged before an American Military Commission constituted by respondent Lieutenant
General Styer; and he now asks that he be reinstated to his former status as prisoner of war, and
that the Military Commission be prohibited from further trying him, on the ground that the
Military Commission was not duly constituted, and, therefore, it is without jurisdiction.

Issue:

W/N the Military Commission has jurisdiction over the petitioner and over the offense with
which he is charged.

Held:

We believe and so hold that the petition for habeas corpus is untenable. It seeks no
discharge of petitioner from confinement but merely his restoration to his former status as a
prisoner of war, to be interned, not confined. The relative difference as to the degree of
confinement in such cases is a matter of military measure, disciplinary in character, beyond the
jurisdiction of civil courts. Neither may the petition for prohibition prosper against Lt. Gen.
Wilhelm D. Styer. The Military Commission is not made party respondent in this case, and
although it may be acting, as alleged, without jurisdiction, no order may be issued in these
proceedings requiring it to refrain from trying the petitioner. Even if the commission be joined as
respondent, this Court has no jurisdiction to entertain the petition, because an attempt of our civil
courts to exercise jurisdiction over the United States Army before the period of 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.

War is not ended simply because hostilities have ceased. After cessation of armed
hostilities, incident of war may remain pending which should be disposed of as in time of war.
"An important incident to a conduct of war is the adoption of measures by the military command
not only to repel and defeat the enemies but to seize and subject to disciplinary measures those
enemies who in their attempt to thwart or impede our military effort have violated the law of
war." Indeed, the power to create a Military Commission for the trial and punishment of war
criminals is an aspect of waging war. 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 of peace, and may extend beyond, by treaty agreement."

The Commission has been validly constituted by Lieutenant General Styer by order duly
issued by General Douglas MacArthur, Commander in Chief, United States Army Forces,
Pacific, in accordance with authority vested in him and with radio communications from the
Joint Chiefs of Staff. Under paragraph 356 of the Rules of Land Warfare, a Military Commission
for the trial and punishment of war criminals must be designated by the belligerent. And the
belligerent's representative in the present case is none other than the Commander in Chief of the
United States Army in the Pacific. Articles of War Nos. 12 and 15 recognize the "Military
Commission" appointed by military command as an appropriate tribunal for the trial and
punishment of offenses against the law of war not ordinarily tried by court martial.

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 Land Warfare, "the commanders ordering the commission
of such acts, or under whose authority they are committed by their troops, may be punished by
the belligerent into whose hands they may fall."

As to the jurisdiction of the Military Commission over war crimes, the Supreme Court of
the United States said: By the Articles of War, and especially Article 15, Congress has explicitly
provided, that military tribunals shall have jurisdiction to try offenders or offenses against the
law of war in appropriate cases. Petitioner is charged before the Military Commission sitting at
Manila with having permitted members of his command "to commit brutal atrocities and other
high crimes against the people of the United States and of its allies and dependencies,
particularly the Philippines," crimes and atrocities which in the bills of particulars, are described
as massacre and extermination of thousands and thousands of unarmed noncombatant civilians
by cruel and brutal means, including bayoneting of children and raping of young girls, as well as
devastation and destruction of public, private, and religious property for no other motive than
pillage and hatred. These are offenses against the laws of war as described in paragraph 347 of
the Rules of Land Warfare.

For all the foregoing, petition is hereby dismissed.


Haya Dela Torre Case

Facts:

Peru issued an arrest warrant against Victor Raul Haya de la Torre ―in respect of the crime of
military rebellion‖ which took place on October 3, 1949, in Peru. 3 months after the rebellion,
Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that
Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention
on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the
Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the
same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification and
refused to grant safe passage.

Issues:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence
for the purpose of asylum under treaty law and international law?

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?

(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter
called the Havana Convention) when it granted asylum and is the continued maintenance of
asylum a violation of the treaty?

Held:

1. The court stated that in the normal course of granting diplomatic asylum a diplomatic
representative has the competence to make a provisional qualification of the offence and the
territorial State has the right to give consent to this qualification.

In the Torre‘s case, Colombia has asserted, as the State granting asylum, that it is competent to
qualify the nature of the offence in a unilateral and definitive manner that is binding on Peru. The
court had to decide if such a decision was binding on Peru either because of treaty law (in
particular the Havana Convention of 1928 and the Montevideo Convention of 1933), other
principles of international law or by way of regional or local custom. 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 (p. 12, 13). The Montevideo Convention
of 1933, which accepts the right of unilateral qualification, and on which Colombia relied to
justify its unilateral qualification, was not ratified by Peru. The Convention, per say, was not
binding on Peru and considering the low 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 which relies on a custom of this kind must prove that this custom is established in
such a manner that it has become binding on the other Party… (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 (in this case, Peru). 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(text in brackets added).”

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 (see also Mendelson, 1948
and see also Nicaragua case, p. 98, the legal impact of fluctuations of State practice). The court
also reiterated that the fact that a particular State practice was followed because of political
expediency and not because of a belief that the said practice is binding on the State by way of a
legal obligation (opinio juris) is detrimental to the formation of a customary law (see North Sea
Continental Shelf Cases and Lotus Case for more on opinio juris):

The court 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.” (See in this regard, the lesson
on persistent objectors. Similarly in the North Sea Continental Shelf Cases the court held ‗in any
event the . . . rule would appear to be inapplicable as against Norway in as much as she had
always opposed any attempt to apply it to the Norwegian coast‘.)

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

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?

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

The court looked at the possibility of a customary law emerging from State practice where
diplomatic agents have requested and been granted safe passage for asylum seekers, before the
territorial State could request for his departure. Once more, the court held that these practices
were a result of a need for expediency and other practice considerations over an existence of a
belief that the act amounts to a legal obligation (see paragraph 4 above).

“There exists undoubtedly a practice whereby the diplomatic representative who grants asylum
immediately requests a safe conduct without awaiting a request from the territorial state for the
departure of the refugee…but this practice does not and cannot mean that the State, to whom
such a request for safe-conduct has been addressed, is legally bound to accede to it.”

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum
and is the continued maintenance of asylum a violation of the treaty?

Article 1 of the Havana Convention states that ―It is not permissible for States to grant asylum…
to persons accused or condemned for common crimes… (such persons) shall be surrendered
upon request of the local government.‖

In other words, the person-seeking asylum must not be accused of a common crime (for
example, murder would constitute a common crime, while a political offence would not).The
accusations that are relevant are those made before the granting of asylum. Torre‘s accusation
related to a military rebellion, which the court concluded was not a common crime and as such
the granting of asylum complied with Article 1 of the Convention.

Article 2 (2) of the Havana Convention states that ―Asylum granted to political offenders in
legations, warships, military camps or military aircraft, shall be respected to the extent in which
allowed, as a right or through humanitarian toleration, by the usages, the conventions or the laws
of the country in which granted and in accordance with the following provisions: First: Asylum
may not be granted except in urgent cases and for the period of time strictly indispensable for the
person who has sought asylum to ensure in some other way his safety.‖

An essential pre-requisite for the granting of asylum is the urgency or, in other words, the
presence of ―an imminent or persistence of a danger for the person of the refugee‖. The court
held that the facts of the case, including the 3 months that passed between the rebellion and the
time when asylum was sought, did not establish the urgency criteria in this case (pp. 20 -23). The
court held:

“In principle, it is inconceivable that the Havana Convention could have intended the term
“urgent cases” to include the danger of regular prosecution to which the citizens of any country
lay themselves open by attacking the institutions of that country… In principle, asylum cannot be
opposed to the operation of justice.”

In other words, Torre was accused of a crime but he could not be tried in a court because
Colombia granted him asylum. The court held that ―protection from the operation of regular
legal proceedings‖ was not justified under diplomatic asylum.

“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.”

As a result, exceptions to this rule are strictly regulated under international law.

An exception to this rule (asylum should not be granted to those facing regular prosecutions) 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… On the other hand, the safety which arises out of asylum cannot be construed as a
protection against the regular application of the laws and against the jurisdiction of legally
constituted tribunals. Protection thus understood would authorize the diplomatic agent to
obstruct the application of the laws of the country whereas it is his duty to respect them… Such a
conception, moreover, would come into conflict with one of the most firmly established traditions
of Latin-America, namely, non-intervention [for example, by Colombia into the internal affairs
of another State like Peru]….

Asylum may be granted on ―humanitarian grounds to protect political prisoners against the
violent and disorderly action of irresponsible sections of the population.‖ (for example during a
mob attack where the territorial State is unable to protect the offender). Torre was not in such a
situation at the time when he sought refuge in the Colombian Embassy at Lima.

The court concluded that the grant of asylum and reasons for its prolongation were not in
conformity with Article 2(2) of the Havana Convention (p. 25).

“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.”
AMBATIELOS CASE Greece v United Kingdom [1952] ICJ 1 *

Facts:

A Greek shipowner, Nicolas Eustache Ambatielos, concluded a contract with His Brittanic
Majesty‘s Government, for the purchase of nine steamships. The delivery of the ships was to be
made at fixed dates by the parties and recorded in a memorandum by the words ―within the time
agreed‖. Among with other evidences of the fixed period for delivery, it is very important
condition of the contract. The ships were not delivered at the agreed dates. The British
government missed every deadline. The resulting financial losses caused Ambatielos to fail to
meet payments, eventually resulting in the reseizure of the already completed ships, ruining
Ambatielos, who failed to resolve the matter in UK courts. On 9 April 1952, Greece took the UK
to the International Court of Justice, claiming that the British Board of Trade disregarded British
legal protocol by failing to fully disclose to the court the delivery dates promised by the British
Government, and the British Court of Appeal disregarded British legal protocol regarding 'fresh
evidence' by denying appeal, thus denying Ambatielos adequate legal protection, contrary to
international law and the Greco-British Treaty of Commerce and Navigation (1886); and, by
declining to enter into an arbitration process with Greece, the UK government was in breach of
said treaty and its UN agreements to 'peacefully resolve' international disputes.

Issue:

Whether or not the ICJ has jurisdiction over the case?

Held:

NO, this case is one which is a public international law case, concerning state responsibility for
economic damage. The International Court of Justice held that the UK had to enter into
arbitration under the terms of a treaty it had made with Greece, although the ICJ itself held it had
no jurisdiction to hear and decide upon the substantive dispute itself. On 1 July 1952 the ICJ
ruled that it had no jurisdiction in the issue of Mr Ambatielos' trial, but had jurisdiction to decide
whether or not the UK is obliged to enter into an arbitration process under the Greco-British
Treaty of Commerce and Navigation. On 19 May 1953 it ruled that the UK was obliged to enter
into an arbitration process with Greece (which it did, and which was arbitrated in the UK's
favour).
NICARAGUA VS UNITED STATES OF AMERICA

June 27, 1986

Facts:

In July 1979, the Government of President Somoza of Nicaragua was replaced by a


government installed by Frente Sandinista de Liberacion Nacional (FSLN)- a democratic
socialist political party. Supporters of the former Somoza Government and former members of
the National Guard opposed the new government. The US – initially supportive of the new
government – changed its attitude when, according to the United States, it found that Nicaragua
was providing logistical support and weapons to guerrillas in El Salvador. In April 1981 the
United States stopped its aid to Nicaragua and in September 1981, according to Nicaragua, the
United States ―decided to plan and undertake activities directed against Nicaragua‖.

The armed activities against the new Government was carried out mainly by (1) Fuerza
Democratica Nicaragüense (FDN), which operated along the border with Honduras, and (2)
Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica.
Initial US support to these groups fighting against the Nicaraguan Government (called ―contras‖)
was covert. Later, the United States officially acknowledged its support (for example: In 1983
budgetary legislation enacted by the United States Congress made specific provision for funds to
be used by United States intelligence agencies for supporting ―directly or indirectly military or
paramilitary operations in Nicaragua‖).

Nicaragua also alleged that the United States is effectively in control of the contras, the
United States devised their strategy and directed their tactics, and that the contras were paid for
and directly controlled by the United States. Nicaragua also alleged that some attacks against
Nicaragua were carried out, directly, by the United States military – with the aim to overthrow
the Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan
ports, and other attacks on ports, oil installations, and a naval base. Nicaragua alleged that
aircrafts belonging to the United States flew over Nicaraguan territory to gather intelligence,
supply to the contras in the field, and to intimidate the population.

The United States did not appear before the ICJ at the merit stages, after refusing to
accept the ICJ‘s jurisdiction to decide the case. The United States at the jurisdictional phase of
the hearing, however, stated that it relied on an inherent right of collective self-defense
guaranteed in A. 51 of the UN Charter when it provided ―upon request proportionate and
appropriate assistance…‖ to Costa Rica, Honduras, and El Salvador in response to Nicaragua‘s
acts of aggression against those countries.

Issue/s:

1. Whether the United States 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.

2. Whether the United States violated its customary international law obligation not to use
force against another State, when it directly attacked Nicaragua in 1983 and 1984 and when
its activities in issue no. 1 resulted in the use of force.

3. Whether or not the military and paramilitary activities that the United States undertook in
and against Nicaragua be justified as collective self-defense.

4. Whether the United States breach its customary international law obligation not to violate
the sovereignty of another State, when it directed or authorized its aircrafts to fly over the
territory of Nicaragua and because of acts referred to in issue no. 2 above.

Held:

1. The Court held that the prohibition on the use of force is found both in Article 2(4) of the
Charter of the United Nations (UN Charter) and in customary international law. In a
controversial finding the Court sub-classified the use of force as (1) ―most grave forms of the use
of force‖ (i.e. those that constitute an armed attack); and (2) ―other less grave forms‖ of the use
of force (i.e. organizing, instigating, assisting, or participating in acts of civil strife and terrorist
acts in another State – when the acts referred to involve a threat or use of force, but not
amounting to an armed attack). The United States violated the customary international law
prohibition on the use of force when it laid mines in Nicaraguan ports. It also violated this
prohibition when it attacked Nicaraguan ports, oil installations, and a naval base. It assisted the
contras by ―organizing or encouraging the organization of irregular forces and armed bands…
for incursion into the territory of another state‖ and participated ―in acts of civil strife…in
another State‖ and when these acts involved the threat or use of force. The supply of funds to the
contras did not violate the prohibition on the use of force. On the contrary, Nicaragua had
previously argued before the Court that the United States determined the timing of offensives
against Nicaragua when it provided funds to the contras. The Court held that ―…it does not
follow that each provision of funds by the United States was made to set in motion a particular
offensive, and that that offensive was planned by the United States.‖ The Court held further that
the arming and training of the contras and the supply of funds, in itself, only amounted to acts of
intervention in the internal affairs of Nicaragua and did not violate the prohibition on the use of
force.

2. A controversial but interesting aspect of the Court‘s judgement was its definition of an
armed attack. The Court held that an armed attack included: (1) action by regular armed forces
across an international border; and (2) ―the sending by or on behalf of a State of armed bands,
groups, irregulars or mercenaries, which carry out acts of (sic) armed force against another State
of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or
its (the State‘s) substantial involvement therein‖.

The Court further held that mere frontier incidents will not considered as armed attacks,
unless, because of its scale and effects, it would have been classified as an armed attack had it
been carried out by regular forces. Assistance to rebels by providing weapons or logistical
support did not constitute an armed attack. Instead, it can be regarded as a threat or use of force
or an intervention in the internal or external affairs of other States. Under Article 51 of the UN
Charter and under CIL – self-defense is only available against a use of force that amounts to an
armed attack.

3. Note that Article 51 of the UN Charter sets out the treaty-based requirements on the
exercise of the right of self-defense. It states:

―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 held that customary international law allows for exceptions to the prohibition
on the use of force, which includes the right to individual or collective self-defense. When a
State claims that it used force in collective self-defense, the Court would examine the following:
(1) Whether the circumstances required for the exercise of self-defense existed; and (2) Whether
the steps taken by the State, which was acting in self-defense, corresponds to the requirements of
international law.

Under international law, several requirements must be met for a State to exercise the right
of individual or collective self-defense:

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

(2) That 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. A third
State cannot exercise a right of collective self-defense based that third State‘s own assessment;

(3) In the case of collective self-defense, the victim State must request for assistance. The Court
held that ―there is no rule permitting the exercise of collective self-defense in the absence of a
request by the State which regards itself as the victim of an armed attack‖;

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

―…Whatever influence the Charter may have had on customary international law in these
matters, it is clear that in customary international law it is not a condition of the lawfulness of the
use of force in self-defense that a procedure so closely dependent on the content of a treaty
commitment and of the institutions established by it, should have been followed. On the other
hand, if self-defense is advanced as a justification for measures which would otherwise be in
breach both of the principle of customary international law and of that contained in the Charter,
it is to be expected that the conditions of the Charter should be respected. Thus, for the purpose
of enquiry into the customary law position, the absence of a report may be one of the factors
indicating whether the State in question was itself convinced that it was acting in self-defense.

The Court, then, looked extensively into the conduct of Nicaragua, El Salvador, Costa
Rica, and Honduras to determine if (1) an armed attack was undertaken by Nicaragua against the
three countries, which in turn would (2) necessitate those countries to act in self-defense against
Nicaragua. The Court noted that (1) none of the countries who were allegedly subject to an
armed attack by Nicaragua declared themselves as victims of an armed attack; (2) they did not
request assistance from the United States to exercise its right of self-defense; (3) the United
States did not claim that when it used force, it was acting under Article 51 of the UN Charter;
and (4) the United States did not report that it was acting in self-defense to the Security Council.
The Court concluded that, based on the above, the United States cannot justify its use of force as
collective self-defense. In any event, the Court held that the criteria relating to necessity and
proportionality, that is required to be met when using force in self-defense – were also not
fulfilled.

4. The Court held that the principle of non-intervention requires that every State has a right
to conduct its affairs without outside interference. In other words, the principle ―…forbids States
or groups of States to intervene directly or indirectly in internal or external affairs of other
States.‖ 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‖.

Nicaragua stated that the activities of the United States were aimed to overthrow the
government of Nicaragua, to substantially damage the economy and to weaken the political
system with the aim to coerce the Government of Nicaragua to accept various political demands
of the United States. The Court concluded that ―…first, that the United States intended, by its
support of the contras, to coerce the Government of Nicaragua in respect of matters in which
each State is permitted, by the principle of State sovereignty, to decide freely; and secondly that
the intention of the contras themselves was to overthrow the present Government of Nicaragua…
The Court considers that in international law, if one State, with a view to the coercion of another
State, supports and assists armed bands in that State whose purpose is to overthrow the
government of that State, that amounts to an intervention by the one State in the internal affairs
of the other, whether or not the political objective of the State giving such support and assistance
is equally far reaching.‖

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. ―…No such general
right of intervention, in support of an opposition within another State, exists in contemporary
international law‖, even if such a request for assistance is made by an opposition group of that
State.

However, in a controversial finding, the Court held that the United States did not devise
the strategy, direct the tactics of the contras or exercise control on them in manner so as to make
their acts committed in violation of international law imputable to the United States. The Court
concluded that ―a number of military and paramilitary operations of the contras were decided and
planned, if not actually by United States advisers, then at least in close collaboration with them,
and on the basis of the intelligence and logistic support which the United States was able to offer,
particularly the supply aircraft provided to the contras by the United States‖ but not all contra
operations reflected strategy and tactics wholly devised by the United States.

―…the various forms of assistance provided to the contras by the United States have been
crucial to the pursuit of their activities, but is insufficient to demonstrate their complete
dependence on United States aid. On the other hand, it indicates that in the initial years of United
States assistance the contra force was so dependent. However, whether the United States
Government at any stage devised the strategy and directed the tactics of the contras depends on
the extent to which the United States made use of the potential for control inherent in that
dependence. The Court already indicated that it has insufficient evidence to reach a finding on
this point. It is a fortiori unable to determine that the contra force may be equated for legal
purposes with the forces of the United States…The Court has taken the view that United States
participation, even if preponderant or decisive, in the financing, organizing, training, supplying
and equipping of the contras, the selection of its military or paramilitary targets, and the planning
of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the
possession of the Court, for the purpose of attributing to the United States the acts committed by
the contras in the course of their military or paramilitary operations in Nicaragua. All the forms
of United States participation mentioned above, and even the general control by the respondent
State over a force with a high degree of dependency on it, would not in themselves mean,
without further evidence, that the United States directed or enforced the perpetration of the acts
contrary to human rights and humanitarian law alleged by the applicant State. Such acts could
well be committed by members of the contras without the control of the United States. For this
conduct to give rise to legal responsibility of the United States, it would in principle have to be
proved that that State had effective control of the military or paramilitary.‖

Interesting, however, the Court also held that providing ―…humanitarian aid to persons
or forces in another country, whatever their political affiliations or objectives, cannot be regarded
as unlawful intervention, or as in any other way contrary to international law‖. In the event one
State intervenes in the affairs of another State, the victim State has a right to intervene in a
manner that is short of an armed attack. ―While an armed attack would give rise to an entitlement
to collective self-defenSe, a use of force of a lesser degree of gravity cannot as the Court has
already observed produce any entitlement to take collective countermeasures involving the use of
force. The acts of which Nicaragua is accused, even assuming them to have been established and
imputable to that State, could only have justified proportionate counter-measures on the part of
the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica.
They could not justify counter-measures taken by a third State, the United States, and
particularly could not justify intervention involving the use of force.‖
International Court of Justice Advisory Opinion:
Legality of the Threat or Use of Nuclear Weapons (1996)

Facts:

The General Assembly of the United Nations asked the Court to provide its legal opinion
on the following question ―Is the threat or use of nuclear weapons in any circumstances
permitted under international law?‖ In 1993, two years previously, the World Health
Organization had asked the Court a similar question on the legality of the use nuclear weapons
under international law. The Court declined to answer because the Court held that the World
Health Organization did not have the competence to ask the Court that particular question.

Issue:

Whether or not, under certain circumstances, threats or use of nuclear weapons permitted
under international law.

Held:

Yes. Under certain circumstance, threat or use of nuclear weapons are permitted under
international law. The threat or use of nuclear weapons in all circumstances is not authorized or
prohibited by either the customary or conventional international nuclear law.

Under the U.N. Charter, the threat or use of nuclear weapons would be considered legal if
all requirements of Article 51 which deals with state‘s rights to self-defense are met. However, in
whatever the situation can be, a state obligation exists to pursue in good faith and bring to a
conclusion negotiations leading to nuclear disarmament in all its aspect under strict and effective
international control.
YUGOSLAVIA v. UNITED STATES OF AMERICA

Facts:

On 29 April 1999, Federal Republic of Yugoslavia (FRY) filed an Application instituting


proceeding against the United States of America "for violation of the obligation not to use force,"
accusing US of bombing Yugoslav territory "together with other Member States of NATO."
Yugoslavia also submitted a request for the indication of provisional measures, asking the Court
to order the US to "cease immediately its acts of use of force" and to "refrain from any act of
threat or use of force" against the FRY.

As a basis for the jurisdiction of the Court, Yugoslavia invoked Article IX of the Convention on
the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations
General Assembly on 9 December 1948, as well as Article 38, paragraph 5, of the Rules of
Court. Article IX of the Genocide Convention provides that disputes between the contracting
parties relating to the interpretation, application or fulfilment of the Convention shall be
submitted to the International Court of Justice. As to Article 38, paragraph 5, when a State files
an application against another State which has not accepted the jurisdiction of the Court, the
application is transmitted to that other State, but no action is taken in the proceedings unless and
until that State has accepted the Court's jurisdiction for the purposes of the case.

Issue:

Whether or not the request for the indication of provisional measures of FRY should be granted.

Held:

No. The ICJ points out that it "does not automatically have jurisdiction over legal disputes
between States" and that "one of the fundamental principles of its Statute is that it cannot decide
a dispute between States without the consent of those States to its jurisdiction." Hence, it cannot
indicate provisional measures without its jurisdiction in the case being established prima facie.

With regard to Article IX of the Genocide Convention, the Court states that it is not disputed that
both Yugoslavia and the United States of America are parties to that Convention, but that when
the United States ratified the Convention on 25 November 1988, it made a reservation – that
before any dispute to which the United States is a party may be submitted to the jurisdiction of
the Court, "the specific consent of the United States is required in each case." However, in this
case, the United States has indicated that it had not given specific consent and that it would not
do so. Since the Genocide Convention does not prohibit reservations and since Yugoslavia did
not object to the reservation made by the United States, the Court considers that Article IX
manifestly does not constitute a basis of jurisdiction in the case, even prima facie. As to Article
38, paragraph 5, the Court stresses that, in the absence of consent by the United States, it cannot
exercise jurisdiction in the case, even prima facie.

The Court concludes that it "manifestly lacks jurisdiction to entertain Yugos1avia's Application"
and that "it cannot therefore indicate any provisional measure whatsoever." The Court finally
observes that "there is a fundamental distinction between the question of the acceptance by a
State of the Court's jurisdiction and the compatibility of particular acts with international law,‖
the former requires consent; the latter question can only be reached when the Court deals with
the merits after having established its jurisdiction and having heard full legal arguments by both
parties." It emphasizes that "whether or not States accept the jurisdiction of the Court, they
remain in any event responsible for acts attributable to them that violate international law,
including humanitarian law." The Court reaffirms that "when such a dispute gives rise to a threat
to the peace, breach of the peace or act of aggression, the Security Council has special
responsibilities under Chapter VII of the Charter."
Rene A. V. Saguisag v. Executive Secretary Paquito Ochoa

G. R. No. 212426 & 212444; January 12, 2016

Facts:

An Executive agreement known as the Enhanced Defense Cooperation Agreement (EDCA)


provides the U.S. troops, planes and ships increased rotational presence in the Philippine military
bases and allows the U.S. to build facilities in order to store fuel and equipment there. The same
agreement was signed against the backdrop of the Philippines‘ maritime dispute with China over
the West Philippine Sea. Subsequently, the U.S. embassy and the Department of Foreign Affairs
exchanged diplomatic notes confirming all necessary requirements in order for the agreement to
take force. The aforesaid agreement has been signed on April 2014 and was later ratified by
President Benigno Aquino III on July 2014.On the understanding that its submission to congress
as unnecessary, the same agreement was not submitted. Before the Supreme Court, several
Petitions for Certiorari were submitted assailing the constitutionality of the Enhanced Defense
Cooperation Agreement (EDCA). It is now contended by the rein petitioners that it should have
been concurred by the senate considering that the same is not an executive agreement. As such,
Senate Resolution No. 105 has been issued expressing a strong sense that in order for the
Enhanced Defense Cooperation Agreement (EDCA) to be valid and binding, it must undergo
deliberation and concurrence, hence, to be submitted to the Senate.

Issue:

Whether or not the Enhanced Defense Cooperation Agreement (EDCA) is constitutional.

Held:

Yes, the Enhanced Defense Cooperation Agreement (EDCA) is considered an executive


agreement and the concurrence of the Senate is not necessary. By the nature of the Enhanced
Defense Cooperation Agreement (EDCA) as an executive agreement, it remains consistent with
the existing laws and treaties that it purports to implement. The contention of the petitioners that
the Enhanced Defense Cooperation Agreement (EDCA) must be in a form of a treaty duly
concurred by the senate was hinge under the following Constitutional provisions; (1) Sec. 21,
Art. VII: ―No treaty or international agreement shall be valid and effective unless concurred in
by at least 2/3 of all the members of the Senate; and (2) Section 25, Article XVIII: Military
bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except
under a treaty duly concurred in by the Senate. The President, however, may enter into an
executive agreement on foreign military bases, troops, or facilities, if (a) it is not the instrument
that allows the presence of foreign military bases, troops, or facilities; or (b) it merely aims to
implement an existing law or treaty. The Enhanced Defense Cooperation Agreement (EDCA) is
consistent with the content, purpose, and framework of the Mutual Defense Treaty and the
Visiting Forces Agreement. The practice of resorting to executive agreements in adjusting the
details of a law or treaty that already deals with the presence of foreign military forces is not at
all unusual in this jurisdiction. The desire to keep the peace in its archipelago and to sustain itself
at the same time against the destructive forces of nature, the Philippines will need friends. It is in
the President to decide who they are, and what form the friendship will take. The only restriction
thereto is what is what the constitution itself expressly prohibits. The Enhanced Defense
Cooperation Agreement (EDCA) is not considered as constitutionally infirm. Being an executive
agreement, it remains consistent with existing laws and treaties that it purports to implement.
Petition is dismissed.
TABLE OF CONTENTS

CASE DIGESTED BY
35 Government of the USA vs. Hon. Judge Purganan K. Amoyan
GR No. 148571 (September 24, 2002)
36 Commissioner Andrea D. Domingo vs. Herbert K. Amoyan
Markus Emil Scheer G.R. No. 154745 (January 29,
2004)
37 Soering vs. The United Kingdom 161 Eur. Ct. H.R. A. Oliva
(ser. A) (July 7, 1989)
38 Chahal vs. The United Kingdom 23 EHRR 413 K. Terante
(November 15, 1996)
39 D. vs. The United Kingdom 24 EHRR 423 (May 2, C. Esteves
1997)
40 Smith and Grady vs. The United Kingdom 29 EHRR J. Par
493 (September 27, 1999)
41 Johansen v. Norway 23 EHHR 33 (August 7, 1996) J. Gilles
42 United States of America vs. Iran (December 15, A. Oliva
1979)
43 Islamic Republic of Iran vs. United States of America, M. Mendoza
I.C.J. 161 (November 6, 2003)
44 La Grand Case (Germany vs. USA) June 27, 2001 C. Pintucan
45 The Abu Ghraib Prison Case (2004) A. Oliva
46 Ireland vs. The United Kingdom 2 EHHR 25 ( C. Esteves
January 18, 1978)
47 Aksoy vs. Turkey, 23 EHRR 553 (18 December J. Gilles
1996)
48 Aydin v. Turkey, 25 EHRR 251 (September 25, J. Picones
1997)

GROUP IV
1. Amoyan, Krizza Lei T.
2. Esteves, Catherine Joy P.
3. Mendoza, Marie Chris M.
4. Gilles, Janine A.
5. Oliva, Anna Lorraine Q.
6. Par, Jay Nikko B.
7. Picones, Joe Mari V.
8. Pintucan, Chris Osmond M.
9. Terante, Kaeth Angeli M.
CASE NO. 35
Government of the USA vs. Hon. Judge Purganan GR No. 148571 (September 24,
2002)

FACTS:

Petition is a sequel to the case ―Sec. of Justice v. Hon. Lantion‖. The Secretary was
ordered to furnish Mr. Jimenez copies of the extradition request and its supporting
papers and to grant the latter a reasonable period within which to file a comment and
supporting evidence. But, on motion for reconsideration by the Sec. of Justice, it
reversed its decision but held that the Mr. Jimenez was bereft of the right to notice and
hearing during the evaluation stage of the extradition process. On May 18, 2001, the
Government of the USA, represented by the Philippine Department of Justice, filed with
the RTC, the Petition for Extradition praying for the issuance of an order for his
―immediate arrest‖ pursuant to Sec. 6 of PD 1069 in order to prevent the flight of
Jimenez. Before the RTC could act on the petition, Mr. Jimenez filed before it an
―Urgent Manifestation/Ex-Parte Motion‖ praying for his application for an arrest warrant
be set for hearing. After the hearing, as required by the court, Mr. Jimenez submitted
his Memorandum. Therein seeking an alternative prayer that in case a warrant should
issue, he be allowed to post bail in the amount of P100,000. The court ordered the
issuance of a warrant for his arrest and fixing bail for his temporary liberty at P1M in
cash. After he had surrendered his passport and posted the required cash bond,
Jimenez was granted provisional liberty.

Government of the USA filed a petition for Certiorari under Rule 65 of the Rules of Court
to set aside the order for the issuance of a warrant for his arrest and fixing bail for his
temporary liberty at P1M in cash which the court deems best to take cognizance as
there is still no local jurisprudence to guide lower court.

ISSUES:

a. Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with


grave abuse of discretion amounting to lack or excess of jurisdiction in adopting a
procedure of first hearing a potential extraditee before issuing an arrest warrant
under Section 6 of PD No. 1069
b. Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction in granting the
prayer for bail
c. Whether or NOT there is a violation of due process

HELD:

Petition is GRANTED. Bail bond posted is CANCELLED. Regional Trial Court of Manila
is directed to conduct the extradition proceedings before it.

i. YES. By using the phrase ―if it appears,‖ the law further conveys that accuracy is not
asimportant as speed at such early stage. From the knowledge and the material then
available to it, the court is expected merely to get a good first impression or a prima
facie finding sufficient to make a speedy initial determination as regards the arrest and
detention of the accused. The prima facie existence of probable cause for hearing the
petition and, a priori, for issuing an arrest warrant was already evident from the Petition
itself and its supporting documents. Hence, after having already determined therefrom
that a prima facie finding did exist, respondent judge gravely abused his discretion when
he set the matter for hearing upon motion of Jimenez. The silence of the Law and the
Treaty leans to the more reasonable interpretation that there is no intention to punctuate
with a hearing every little step in the entire proceedings. It also bears emphasizing at
this point that extradition proceedings are summary in nature. Sending to persons
sought to be extradited a notice of the request for their arrest and setting it for hearing at
some future date would give them ample opportunity to prepare and execute an escape
which neither the Treaty nor the Law could have intended.

Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not
require a notice or a hearing before the issuance of a warrant of arrest. To determine
probable cause for the issuance of arrest warrants, the Constitution itself requires only
the examination under oath or affirmation of complainants and the witnesses they may
produce.

The Proper Procedure to “Best Serve The Ends Of Justice” In Extradition Cases

Upon receipt of a petition for extradition and its supporting documents, the judge must
study them and make, as soon as possible, a prima facie finding whether:
a. they are sufficient in form and substance
b. they show compliance with the Extradition Treaty and Law
c. the person sought is extraditable

At his discretion, the judge may require the submission of further documentation or may
personally examine the affiants and witnesses of the petitioner. If, in spite of this study
and examination, no prima facie finding is possible, the petition may be dismissed at the
discretion of the judge. On the other hand, if the presence of a prima facie case is
determined, then the magistrate must immediately issue a warrant for the arrest of the
extraditee, who is at the same time summoned to answer the petition and to appear at
scheduled summary hearings. Prior to the issuance of the warrant, the judge must not
inform or notify the potential extraditee of the pendency of the petition, lest the latter be
given the opportunity to escape and frustrate the proceedings.

ii. YES. The constitutional provision on bail on Article III, Section 13 of the Constitution,
as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has
been arrested and detained for violation of Philippine criminal laws. It does not apply to
extradition proceedings, because extradition courts do not render judgments of
conviction or acquittal. Moreover, the constitutional right to bail ―flows from the
presumption of innocence in favor of every accused who should not be subjected to the
loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved
beyond reasonable doubt. In extradition, the presumption of innocence is not at
issue. The provision in the Constitution stating that the ―right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended‖ finds
application ―only to persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion.‖
That the offenses for which Jimenez is sought to be extradited are bailable in the United
States is not an argument to grant him one in the present case. Extradition proceedings
are separate and distinct from the trial for the offenses for which he is charged. He
should apply for bail before the courts trying the criminal cases against him, not before
the extradition court.

Exceptions to the “No Bail” Rule

Bail is not a matter of right in extradition cases. It is subject to judicial discretion in the
context of the peculiar facts of each case. Bail may be applied for and granted as an
exception, only upon a clear and convincing showing:
a. that, once granted bail, the applicant will not be a flight risk or a danger to the
community; and
b. that there exist special, humanitarian and compelling circumstances including, as
a matter of reciprocity, those cited by the highest court in the requesting state
when it grants provisional liberty in extradition cases therein

Since this exception has no express or specific statutory basis, and since it is derived
essentially from general principles of justice and fairness, the applicant bears the
burden of proving the above two-tiered requirement with clarity, precision and emphatic
forcefulness.

It must be noted that even before private respondent ran for and won a congressional
seat in Manila, it was already of public knowledge that the United States was requesting
his extradition. Therefore, his constituents were or should have been prepared for the
consequences of the extradition case. Thus, the court ruled against his claim that his
election to public office is by itself a compelling reason to grant him bail.

Giving premium to delay by considering it as a special circumstance for the grant of bail
would be tantamount to giving him the power to grant bail to himself. It would also
encourage him to stretch out and unreasonably delay the extradition proceedings even
more. Extradition proceedings should be conducted with all deliberate speed to
determine compliance with the Extradition Treaty and Law; and, while safeguarding
basic individual rights, to avoid the legalistic contortions, delays and technicalities that
may negate that purpose.

That he has not yet fled from the Philippines cannot be taken to mean that he will stand
his ground and still be within reach of our government if and when it matters; that is,
upon the resolution of the Petition for Extradition.

iii. NO. Potential extraditees are entitled to the rights to due process and to
fundamental fairness. The doctrine of right to due process and fundamental fairness
does not always call for a prior opportunity to be heard. A subsequent opportunity to
be heard is enough. He will be given full opportunity to be heard subsequently, when
the extradition court hears the Petition for Extradition. Indeed, available during the
hearings on the petition and the answer is the full chance to be heard and to enjoy
fundamental fairness that is compatible with the summary nature of extradition.

It is also worth noting that before the US government requested the extradition of
respondent, proceedings had already been conducted in that country. He already had
that opportunity in the requesting state; yet, instead of taking it, he ran away.

Other Doctrines:

Five Postulates of Extradition

1) Extradition Is a Major Instrument for the Suppression of Crime

In this era of globalization, easier and faster international travel, and an expanding ring
of
international crimes and criminals, we cannot afford to be an isolationist state. We need
to cooperate with other states in order to improve our chances of suppressing crime in
our own country.

2) The Requesting State Will Accord Due Process to the Accused

By entering into an extradition treaty, the Philippines is deemed to have reposed its trust
in the reliability or soundness of the legal and judicial system of its treaty partner, as
well as in the ability and the willingness of the latter to grant basic rights to the accused
in the pending criminal case therein.

3) The Proceedings Are Sui Generis

An extradition proceeding is sui generis:


a. It is not a criminal proceeding which will call into operation all the rights of an
accused as guaranteed by the Bill of Rights. It does not involve the
determination of the guilt or innocence of an accused. His guilt or innocence will
be adjudged in the court of the state where he will be extradited.
b. An extradition proceeding is summary in nature while criminal proceedings
involve a full-blown trial.
c. In terms of the quantum of evidence to be satisfied, a criminal case requires
proof ―beyond reasonable doubt‖ for conviction while a fugitive may be ordered
extradited ―upon showing of the existence of a prima facie case‖
d. Unlike in a criminal case where judgment becomes executory upon being
rendered final, in an extradition proceeding, our courts may adjudge an individual
extraditable but the President has the final discretion to extradite him.
Extradition is merely a measure of international judicial assistance through which a
person charged with or convicted of a crime is restored to a jurisdiction with the best
claim to try that person. The ultimate purpose of extradition proceedings in court is only
to determine whether the extradition request complies with the Extradition Treaty, and
whether the person sought is extraditable.

4) Compliance Shall Be in Good Faith.

We are bound by pacta sunt servanda to comply in good faith with our obligations
under the Treaty. Accordingly, the Philippines must be ready and in a position to deliver
the
accused, should it be found proper

5) There Is an Underlying Risk of Flight


Indeed, extradition hearings would not even begin, if only the accused were
willing to submit to trial in the requesting country. Prior acts of herein respondent:
a. leaving the requesting state right before the conclusion of his indictment
proceedings there; and
b. remaining in the requested state despite learning that the requesting state is
seeking his return and that the crimes he is charged with are bailable.

Extradition is Essentially Executive

Extradition is essentially an executive, not a judicial, responsibility arising out of the


presidential power to conduct foreign relations and to implement treaties. Thus, the
Executive Department of government has broad discretion in its duty and power of
implementation.
CASE NO. 36
Commissioner Andrea D. Domingo vs. Herbert Markus Emil Scheer G.R. No.
154745 (January 29, 2004)

FACTS:

Respondent Herbert Markus Emil Scheer, a native ofOchsenfurt, Germany, was a


frequent visitor of the Philippines. On July 18, 1986, his application for permanent
resident status was granted.

During his sojourn in the Philippines, the respondent married widowed Edith delos
Reyeswith whom he had two daughters. They had a son, Herbert Scheer, Jr., but
hepassed away on November 13, 1995. They resided in Puerto Princesa City, Palawan,
where the respondent established and managed the Bavaria Restaurant. On May 21,
1991, he was appointed Confidential Agent by then NBI Director Alfredo S. Lim.

In a Letter dated June 29, 1995, Vice Consul Jutta Hippelein informed the Philippine
Ambassador to Bonn, Germany, that the respondent had police records and financial
liabilities in Germany.

The Department of Foreign Affairs received from the German Embassy in Manila Note
Verbale No. 369/95 dated July 26, 1995, informing it that the respondent was wanted by
the German Federal Police; that a warrant of arrest had been issued against him; and
that the respondent will be served with an official document requesting him to turn over
his German passport to the Embassy which was invalidated on July 2, 1995.

The Embassy requested the Department of Foreign Affairs to inform the competent
Philippine authorities of the matter. The BOC thereafter issued a Summary Deportation
Order dated September 27, 1997.

In issuing the said order, the BOC relied on the correspondence from the German Vice
Consul on its speculation that it was unlikely that the German Embassy will issue a new
passport to the respondent; on the warrant of arrest issued by the District Court of
Germany against the respondent for insurance fraud; and on the alleged illegal activities
of the respondent in Palawan. The BOC concluded that the respondent was not only an
undocumented but an undesirable alien as well.

When the respondent was apprised of the deportation order, he forthwith aired his side
to then BID Commissioner Leandro T. Verceles. The Commissioner allowed the
respondent to remain in the Philippines, giving the latter time to secure a clearance and
a new passport from the German Embassy.

Nonetheless, the respondent, through counsel, filed on December 5, 1995 an Urgent


Motion for Reconsideration of the Summary Deportation Order of the BOC. In his
motion, the respondent alleged that he was not given notice and opportunity to be heard
before said Summary Deportation Order was issued. Respondent's right to procedural
due process was therefore violated. Consequently, the Summary Deportation Order is
invalid.

ISSUE:

Whether not not respondent's right to procedural due process was violated.

HELD:

The BOC committed a grave abuse of discretion amounting to excess or lack of


jurisdiction in issuing its Summary Deportation Order and Omnibus Resolution, and that
the petitioner committed grave abuse of discretion amounting to excess or lack of
jurisdiction in causing the arrest and detention of the private respondent.

The settled rule is that the entry or stay of aliens in the Philippines is merely a privilege
and a matter of grace; such privilege is not absolute nor permanent and may be
revoked. However, aliens may be expelled or deported from the Philippines only on
grounds and in the manner provided for by the Constitution, the Immigration Act of
1940, as amended, and administrative issuances pursuant thereto.

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally
accepted principles of international law a part of the law of Nation." And in a resolution
entitled "Universal Declaration of Human Rights" and approved by the General
Assembly of... the United Nations of which the Philippines is a member, at its plenary
meeting on December 10, 1948, the right to life and liberty and all other fundamental
rights as applied to all human beings were proclaimed. It was there resolved that "All
human beings are born free and... equal in degree and rights" (Art. 1); that "Everyone is
entitled to all the rights and freedom set forth in this Declaration, without distinction of
any kind, such as race, color, sex, language, religion, political or other opinion,
nationality or social origin, property, birth,... or other status" (Art. 2); that "Everyone has
the right to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the Constitution or by law" (Art. 8); that "No one shall
be subjected to arbitrary arrest, detention orexile" (Art. 9); etc.

In this case, the BOC ordered the private respondent's deportation on September 27,
1995 without even conducting summary deportation proceedings. The BOC merely
relied on the June 29, 1995 Letter of the German Vice Consul and of the German
Embassy's Note Verbale No.369/95 dated July 26, 1995. It issued the Summary
Deportation Order on September 27, 1995 allegedly under paragraph 3 of Office
Memorandum Order No. 34 dated August 21, 1989.

The respondent was not afforded any hearing at all. The BOC simply concluded that the
respondent committed insurance fraud and illegal activities in Palawan without any
evidence. The respondent was not afforded a chance to refute the charges. He cannot,
thus, be arrested and deported without due process of law as required by the Bill of
Rights of the Constitution.
CASE NO. 37
Soering vs. The United Kingdom 161 Eur. Ct. H.R. (ser. A) (July 7, 1989)

FACTS:

The applicant, Mr. Jens Soering is a West-German National. He is currently detained in


prison in England pending extradition to the US to face charges of murder in the
Commonwealth of Virginia.

The homicides in question were committed in Bedford County, Virginia, in March 1985.
The victims were the parents of the applicant‘s girlfriend, Elizabeth Haysom, who is a
Canadian National. At the time the applicant and Elizabeth Haysom, aged 18 and 20
respectively, were students at the University of Virginia. They disappeared together
from Virginia, but were later arrested in England in April 1986 in connection with cheque
fraud.

The applicant was later indicted in absentia by the Bedford County Circuit Court on
charges alleging capital murder of the Haysoms. The US requested the applicant‘s and
Miss Haysom‘s extradition under the Extradition Treaty of 1972 between the US and the
UK. The UK Government also received an extradition request from the Federal Republic
of Germany, based on the fact that Mr. Soering was a West-German national. The
British Secretary of State then sought reassurances from the authorities in Virginia that
should Mr. Soering be extradited to the United States and convicted of capital murder,
the death penalty would not be carried out or at the least be given the opportunity to
recommend to the judge that the death penalty should not be imposed. The
Government of the United Kingdom decided to allow the extradition of Mr. Soering to
the US, preferring this to an extradition to the Federal Republic of Germany.

Mr. Soering lodged an application with the Commission stating his belief that
notwithstanding the assurance given to the UK Government, there was a serious
likelihood that he would be sentenced to death if extradited. He maintained that with
regard to the ―death row phenomenon‖ he would thereby be subjected to inhuman and
degrading treatment and punishment contrary to Article 3 of the Convention. He further
submitted that his extradition to the US would constitute a violation of Article 6 (3)
because of the absence of legal aid in the State of Virginia to pursue various appeals.
Finally, he claimed that, in breach of Article 13, he had no effective remedy under UK
law in respect of his complaint under Article 3.

The UK Government contended that Article 3 should not be interpreted as to impose


responsibility on a Contracting State for acts which occur outside its jurisdiction.
Extradition does not involve the responsibility of the Extraditing State for inhuman or
degrading treatment or punishment which the extradited person may suffer outside of
the State‘s jurisdiction.
ISSUES:

i. Whether the decision by the UK to extradite Soering to the authorities of the US


would, if implemented, give rise to violation of Article 3 of the Convention for the
Protection of Human Rights and Fundamental Freedoms, as he would face the
death row once in the US.
ii. Whether the absence of legal aid in the US would give rise to a violation of Article
6(3)(c) of the Convention by the UK as Soering would not be able to secure legal
representation.

HELD:

Alleged Breach of Article 3

The alleged breach of the prohibition on torture or inhuman or degrading treatment or


punishment was derived from the applicant‘s exposure to the so-called ―death row
phenomenon‖ which may be described as the combination of circumstances which the
applicant would be exposed to if, after having been extradited to Virginia, he were
sentenced to death. The Court first explained that the Convention does not contain a
right prohibiting extradition (see Article 5(1) (f)). However, if extradition has
consequences adversely affecting the enjoyment of a Convention right, it may,
assuming they are not too remote, attract the obligations of a Contracting State. That
the UK has no power over Virginia authorities did not absolve it from responsibility
under Art. 3 for all and any foreseeable consequences of extradition. Further, Art. 3 has
no provision for exceptions or derogations. It would be incompatible with the underlying
values of the Convention if a Contracting State could knowingly surrender a fugitive to
another State where there were substantial grounds for believing that he would be in
danger of being subjected to torture or face a real risk of exposure to inhuman or
degrading treatment or punishment in the receiving State. Therefore a decision by a
Contracting State to extradite may give rise to an issue under Art. 3.

Upon application to the current case, the Court determined that the likelihood of the
feared exposure to the ―death row phenomenon‖ was sufficient to bring Art.3 into
play.The Court explained that, as established in its case law, ill-treatment and
punishment must attain a minimum level of severity to fall within the scope of Art. 3. In
order for a punishment or treatment to be ―inhuman‖ or ―degrading,‖ the suffering or
humiliation involved must in any event go beyond that inevitable element of suffering or
humiliation connected with a given form of legitimate punishment.
The Court then examined the particular circumstances in the case and determined that
a condemned prisoner has to endure many years of anguish and mounting tension of
living because of the complex post-sentence procedures in Virginia. Second, the
conditions in the severe special regime on death row also factor into an Art. 3 issue.
Third, the applicant‘s youth at the time of the offense and his then mental state tend to
bring the treatment within the terms of Art. 3.

In conclusion, the Court determined that the Secretary of State‘s decision to extradite
the applicant to the US would, if implemented, give rise to a breach of Art. 3.

Alleged breach of Article 6

The Court next considered the applicant‘s submission that because of the absence of
legal aid in Virginia to fund collateral challenges before Federal courts, he would not be
able to secure his legal representation as required by Article 6 § 3 (c). The Court found
that the facts of the present case did not disclose a risk of suffering a flagrant denial of a
fair trial.

The Court then considered the applicant‘s allegation that the refusal of the English
Magistrates court to consider evidence as to his psychiatric condition violated Art. 6 (1)
and (3), but because this complaint was not pleaded before the Commission, the Court
had no jurisdiction to entertain the matter.

Alleged breach of Article 13

The Court lastly considered the applicant‘s allegation of a breach of Art. 13 ECHR
because he claimed he had no effective remedy in the UK in respect of his complaint
under Art. 3. The Court came to the conclusion that the requirements of Art. 13 were not
violated. In coming to this conclusion, the Court first examined the judicial review
proceedings. It was satisfied that the English courts can review the ―reasonableness‖ of
an extradition decision (the test of ―irrationality‖ on the basis of the so-called
―Wednesbury principles‖) in light of the kind of factors relied on by the applicant before
the Convention institutions in the context of Art. 3. The applicant‘s claim failed before
the House of Lords because it was premature. Furthermore, his arguments were not the
same as those relied on when justifying his complaint under Art. 3. The English courts‘
lack of jurisdiction to grant interim injunctions against the Crown did not detract from the
effectiveness of judicial review, and as such, the Court concluded that the applicant did
have an effective remedy available to him under English law.
CASE NO. 38
Chahal vs. The United Kingdom 23 EHRR 413 (November 15, 1996)

FACTS:
The four applicants are members of the same family and are Sikhs. The first applicant,
an Indian citizen, Karamjit Singh Chahalentered the United Kingdom illegally in search
of employment. He applied to the Home Office to regularize his stay and was granted
indefinite leave to remain under the terms of an amnesty for illegal entrants. He has
been detained for the purposes of deportation. The second applicant, Darshan Kaur
Chahalis also an Indian citizen. She came to England following her marriage to the first
applicant in India with the two children, Kiranpreet Kaur Chahal and Bikaramjit Singh
Chahal, who are the third and fourth applicants. By virtue of their birth in the United
Kingdom the two children have British nationality.

In 1984, Mr. Chahal visited India and due to his association with the Sikh separatist
movement, he was detained and tortured by the police. The Home Secretary decided
that MrChahal ought to be deported because his continued presence in the United
Kingdom was unconducive to the public good for reasons of national security and other
reasons of a political nature, namely the international fight against terrorism.Mr. Chahal
requested asylum and claimed that he would be subjected to torture and persecution if
returned to India. The Home Secretary refused the request for asylum. In a letter to the
applicant, he expressed the view that the latter's known support of Sikh separatism
would be unlikely to attract the interest of the Indian authorities unless that support were
to include acts of violence against India.

Because of the national security elements of the case, there was no right of appeal
against the deportation order. However, the matter was considered by an advisory
panel. He appeared before the panel in person, and was allowed to call witnesses on
his behalf, but was not allowed to be represented by a lawyer or to be informed of the
advice which the panel gave to the Home Secretary. His application for judicial review
failed as, in the absence of evidence of the risk posed to national security, the court was
unable to assess whether the Secretary of State's decision to refuse asylum was
irrational.

ISSUE:

Whether or not the nature of prohibition against torture and degrading treatment
guaranteed under Art. 3 of the European Convention on Human Rights was absolute or
could be qualified in the interests of national security and the prevention of terrorism.

HELD:

Although Contracting States have the right to control the entry, residence, and expulsion
of aliens, and the right to political asylum is not contained in the Convention or its
Protocols, it is well-established that an expulsion may give rise to an Art. 3 issue where
substantial grounds have been shown to believe that the person would face a real risk
of being subjected to treatment contrary to Art. 3.The Court rejected the Government‘s
contention that Art. 3 considerations should be balanced against the national security
threat allegedly posed by the applicant. According to the Court, the prohibition provided
by Art. 3 against ill-treatment is absolute, and unlike most substantive clauses of the
Convention and Protocols, makes no provision for exceptions and no derogation from it
is permissible under Art. 15 even in the event of a public emergency. Thus, in an
expulsion case, where substantial grounds have been shown that an individual would
face a real risk of being subjected to ill-treatment, the responsibility of a Contracting
State to safeguard him is engaged. The protection afforded by Art. 3 is wider than that
provided by Art. 32 and 33 of the 1951 Convention.

For the purposes of assessing the risk of ill-treatment, the Court considered that the
relevant time was that of the proceedings, as he had not yet been deported. Therefore
while the historical situation was of interest, it was the current one in Punjab that was
decisive. After considering both the evidence presented by the Government of the
current situation in Punjab and generally in India, the Court decided that despite
improvements, there was still a real risk of the applicant being subjected to treatment
contrary to Art. 3 if returned to India. The Court emphasized evidence of the continued
involvement of Punjab police in killings and abductions, including outside the State, as
well as the applicant‘s high profile. The Court found that the applicant‘s status as a well-
known Sikh separatist heightened the risk, rather than lowered it, as the Government
contended. Accordingly, the Court found that his order for deportation to India would
give rise to a violation of Art. 3.

The Court considered the applicant‘s allegation that his detention ―with a view to
deportation‖ (within the meaning of Art. 5) ceased to be justified because of its duration.
The Court recalled that under its jurisprudence, any deprivation of liberty under Art. 5
(1)(f) will be justified only for as long as deportation proceedings are in progress, and
therefore it must be determined whether the duration of the proceedings was excessive.
The Court found that it would have been neither in the interests of the individual
applicant nor that of the general public in the administration of justice that decisions
over his deportation be taken hastily, without due regard to all the relevant issues and
evidence, and as such there was no violation of Art. 5 (1)(f), as none of the periods
complained of could be regarded as excessive, either individually or in combination.

The Court also considered whether the detention was ―lawful,‖ with particular reference
to the safeguards provided by the national system and that it had assured that the
individual was protected from arbitrariness in view of the extremely long duration of the
detention. While the Court found the length of time which he was bound of serious
concern, in view of the exceptional circumstances in which the national authorities
considered the applicant a threat to national security, and finding that there were
sufficient guarantees against the arbitrary deprivation of liberty, especially because an
advisory panel reviewed the evidence and agreed with the Home Secretary that he
ought to be deported on national security grounds, the Court determined there was no
violation of Art. 5 (1)(f).

The Court examined the applicant‘s complaint that he was denied the opportunity to
have the lawfulness of his detention reviewed, as required under Art. 5 (4). Art. 5( 4)
provides a lexspecialis in relation to the more general requirements of Art. 13, but the
Court found it must review the complaint under this provision and not only under Art. 13.
The Court explained that the question was whether the available proceedings to
challenge the lawfulness of the applicant‘s detention and seek bail provided an
adequate control by the domestic courts. Because national security was involved, the
domestic courts were not in a position to review the decisions to detain the applicant.
Although the procedure before the advisory panel provided some degree of control, the
applicant was not entitled to legal representation before this panel and the panel had no
power of decision, and it could not be considered a ―court‖ within the meaning of Art. 5
(4). Even if national security is at stake, the Court asserted that national authorities
cannot be free from effective control by domestic courts whenever they choose to assert
that national security and terrorism are involved. The Court found that neither the
proceedings for habeas corpus and for judicial review, nor the advisory panel
procedure, satisfied the requirements of Art. 5 (4). Exacerbated by the fact that the
applicant was detained for a length of time of serious concern, it concluded there had
been a violation of Art. 5 (4).

It also considered whether the interference with respect for all four applicants‘ family life
was ―necessary in a democratic society in the interests of national security,‖ within the
meaning of Art. 8 (2). Having already found that the deportation would constitute a
violation of Art. 3, it found it not necessary to decide the hypothetical question whether,
in the event of an expulsion, there would also be a violation of Art. 8.

The Court considered the applicants‘ allegation that they were not provided with
effective remedies before national courts, in breach of Art. 13. The Court only found it
necessary to examine the complaint in conjunction with Art. 3. and not Art. 5 or 8. In
Vilvarajahthe Court was satisfied with English courts power to review a decision by the
Secretary of State to refuse asylum. While in Klass and Leander the Court established
that Art. 13 only required a remedy that was ―as effective as can be‖ in circumstances
where national security considerations did not permit the divulging of certain sensitive
information, this requirement is not appropriate in respect of a complaint that a person‘s
deportation will expose him to a real risk of treatment in breach of Art. 3, where issues
concerning national security are immaterial. Independent scrutiny of the claim is
required given the irreversible nature of harm that might occur. Because neither the
advisory panel nor the courts could review the Home Secretary‘s decision to deport the
applicant with reference solely to the question of risk, these procedures could not be
considered effective remedies with purposes of Art. 13. Accordingly, the Court found
that there had been a violation of Art. 13.

The Court finally considered the applicants‘ request to grant them just satisfaction under
Art. 50. Because there was no violation of Art. 5 (1) found, the Court made no award for
non-pecuniary damage in respect of the time he spent in detention, but considered that
the findings that his deportation would constitute a violation of Art. 3 and that there had
been breaches of Art. 5 (4) and 13 constituted sufficient just satisfaction.
CASE NO. 39
D. vs. The United Kingdom 24 EHRR 423 (May 2, 1997)

FACTS:
The case originated with an application lodged against the UK in 1996 by the applicant,
identified only as ―D.‖ The applicant was born in St Kitts and lived there most of his life.
His family moved to the United States beginning in the 1970s and he visited the country
to try to join them in 1989. In 1991 he was arrested for possession of cocaine and
sentenced to prison in the US; after one year he was paroled for good behaviour and
deported on 8 January 1993 to St Kitts. On 21 January 1993 he arrived in London and
sought leave to enter the UK for two weeks as a visitor; at the airport he was found to
be in possession of a substantial quantity of cocaine. On 10 May 1993 he was
sentenced to 6 years imprisonment by the Croydon Crown Court. He behaved well in
prison and was released on license on 24 January 1996 and placed in immigration
detention pending his removal to St Kitts. However, in August 1994, while serving his
prison sentence, the applicant suffered an attack of PCP and was diagnosed as HIV-
positive and as suffering from AIDS. The infection appears to have occurred before his
arrival in the UK.

On 23 January 1996, the applicant‘s solicitors requested that he be granted leave to


remain in the UK on compassionate grounds since his removal to St Kitts would entail
the loss of the medical treatment which he was receiving, thereby shortening his life
expectancy. The request was refused, his leave to apply for judicial review to the High
Court was refused, and the Court of Appeal dismissed his renewed application.
According to the applicant‘s medical reports, his prognosis was very poor and limited to
eight to twelve months. If he were to be removed to St Kitts, which did not have the
proper medical care for his condition available, it was estimated the prognosis would be
reduced to less than half. Furthermore the applicant had no family home or close family
in St Kitts to care for him there, only one cousin. He would have no financial resources,
accommodation, or any access to social support in St Kitts. By February 1997 at the
hearing before the Court, the applicant‘s condition was causing concern and according
to his counsel; it appeared that his life was drawing to a close.

ISSUE:

Whether or not the removal of the applicant to St Kitts would be in violation of Art. 2, 3,
and 8 ECHR and that he had been denied an effective remedy to challenge the removal
order in breach of Art. 13.

HELD:

Alleged Breach of Article 3

The Court recalled that Contracting States have the right to control the entry, residence,
and expulsion of aliens. It also noted the gravity of the offence which was committed by
the applicant and stated that the administration of severe sanctions to persons involved
in drug trafficking, including the expulsion of alien drug couriers like the applicant, was a
justified response. However, a Contracting State must have regard to Art. 3, which
prohibits in absolute terms inhuman or degrading treatment. The applicant maintained
that his removal would condemn him to spend his remaining days in pain and suffering
in conditions of isolation and without proper medical care, thus not only accelerating his
death but also creating inhuman and degrading conditions for the end of his life. The
Court stated that it was for the respondent State to secure to the applicant the rights
guaranteed under Art. 3 irrespective of the gravity of his offence. This principle is not
limited to risks which emanate from intentionally inflicted acts of the public authorities in
the receiving country or from those of non-State bodies when the country‘s authorities
are unable to afford an individual the appropriate protection. The Court is not limited
from scrutinising a claim under Art. 3 where the source of the risk of the proscribed
treatment stems from factors which cannot engage either directly or indirectly the
responsibility of the public authorities of that country, or which taken alone, do not in
themselves infringe the standards of Art. 3, as such a limitation would undermine the
absolute character of Art. 3‘s protection.

The Court then assessed whether the applicant‘s removal would present a real risk of
treatment contrary to Art. 3 in view of his present medical condition and in light of the
material before it at the time of its consideration of the case. It determined that his
abrupt withdrawal from the facilities and separation from his carers in the UK would
hasten his death and that there was a serious danger of conditions of adversity in St
Kits which would subject him to acute and mental physical suffering. In view of his
exceptional circumstances and bearing in mind the critical stage of his fatal illness, it
found that implementation of his removal would amount to inhuman treatment in
violation of Art. 3. It emphasized that aliens who have served their prison sentences and
are subject to expulsion cannot, in principle, claim any entitlement to remain in the
Contracting State territory, and stressed the very exceptional circumstances and
compelling humanitarian considerations at stake in this case.

Alleged Breach of Article 2

The Court considered the applicant‘s allegation that the implementation of his removal
to St Kitts by the UK would amount to a breach of Art. 2 as there would be, he claimed,
a direct causal link between his expulsion and his accelerated death as to violate his
right to life. The Court found, in agreement with the Commission, that the complaints
raised under Art. 2 were indissociable from the substance of the complaint under Art. 3.
Having already found that his removal to St Kitts would give rise to a violation of Art. 3, it
found it unnecessary to examine the complaint under Art. 2.

Alleged Breach of Article 8

The Court considered the applicant‘s allegation that his proposed removal would violate
his right to respect for his private life, as guaranteed by Art. 8. Having regard to its
finding under Art. 3., the Court concluded that the applicant‘s complaints under Art. 8
raised no separate issue.
Alleged Breach of Article 13

The Court considered the applicant‘s complaint that he had no effective remedy in
English law in respect of his complaints under Art. 2, 3, and 8, giving rise to a breach of
Art. 13. The Court observed that the effect of Art. 13 is to require the provision of a
domestic remedy allowing the competent national authority to both deal with the
substance with the relevant Convention complaint and to grant appropriate relief,
although Contracting States are afforded some discretion as to the manner in which
they conform to their obligations under this provision.

The Court found that while the source of the risk of the prohibited treatment was
different from that of Soering and Vilvarajah, in which the Court considered judicial
review proceedings in the UK to be an effective remedy in relation to the complaints
raised under Art. 3, there was no reason to depart from the conclusion reached in those
cases. The substance of the applicant‘s complaint had been examined by the Court of
Appeal; it had power to afford him the relief he sought and the fact that it did not do so
was not a material consideration since the effectiveness of a remedy does not depend
on the certainty of a favourable outcome for an applicant. Because the applicant thus
had an effective remedy in relation to his complaints under Art. 2, 3, and 8, there was no
breach of Art. 13 found.

Application of Article 50

The applicant did not seek damages but only claimed reimbursement for costs and
expenses in respect of the proceedings brought before the Convention institutions,
which was granted, albeit at a reduced amount after the Court made an assessment on
an equitable basis.
CASE NO. 40
Smith and Grady vs. The United Kingdom 29 EHRR 493 (September 27, 1999)

FACTS:

Jeanette Smith and Graemy Grady were exemplary members of Royal Air Force and
has been fired from service because of being homosexual.
Smith admitted that she is a homosexual after an anonymous caller reported it to the
airforce authorities and that she had past and current homosexual relationship.
Moreover, she also knew about the consequences of her homosexuality. After the pre-
disciplinary investigation regarding her homosexuality, she was discharged from the
Royal Airforce.
Meanwhile, Grady worked at the British Defence Liaison Service, is married with two
children. He told his of wife that he is homosexual. Thereafter, the information reached
the head of the BDLS and investigation report has been opened resulting to the
replacements of his current security clearance into a lower one. Because of it, he was
discharged from his designation and was forced to go back to United Kingdom.

ISSUE:

Whether or not the discharge of Smith and Grady is violative of their human rights and
the Article 8 of the European Convention on Human Rights

HELD:

The Court held that both the discharges because of homosexuality violated Article 8 of
the Convention. The Court found both were in accordance with the law and had a
legitimate aim but that neither were necessary in a democratic society as required by
Article 8. As the intrusions concerned one of the most intimate parts of an individuals
private life, the Court required particularly serious reasons to justify them. In terms of
the armed forces, this meant that there must have been a real threat to their operational
effectiveness. The Court found that the report, upon which the military supported its
policy to exclude homosexuals, came to its conclusion that integration would harm
morale based solely on negative attitudes towards homosexuals by current soldiers.
Furthermore, the continued investigations done into the personnel‘s private lives after
finding that they were gay was a violation as the government‘s rationale of seeking to
detect false claims of homosexuality was not sufficient.
CASE NO. 41

Johansen v. Norway 23 EHHR 33 (August 7, 1996)

FACTS:

The applicant, who was born at Laksevåg near Bergen, left home when she was 16. In
1977, when she was 17 years old, she gave birth to her son C. and they became
dependent on assistance from the social welfare authorities. From 1980 onwards the
applicant cohabited with a man who mistreated her and C. On many occasions the
social welfare authorities assisted the applicant in the upbringing of C., but considerable
problems as well as friction arose between those authorities and the applicant.

On 14 November 1989 C., who was then 12 years old, was provisionally taken into care
under section 11 of the Child Welfare Act (Barnevernsloven) no. 14 of 17 July 1953
("the 1953 Act" as the circumstances of the case disclosed a danger to his health and
development. The police assisted the child welfare authorities in enforcing the decision.
After spending the period from November 1989 to early January 1990 at the Child
Psychiatric Department of Haukeland Hospital, C. was placed in a children‘s home.

On 7 December 1989 the applicant gave birth to her daughter S. In view of the
applicant's difficult situation and the problems with regard to the upbringing of C., the
child welfare authorities (barnevernet) at Røa in Oslo were contacted. At a meeting on 8
December 1989 between the applicant and her lawyer and the child welfare authorities
the applicant's and S.'s situation was discussed.

On 13 December 1989 the Chairperson of the Client and Patient Committee of Røa,
district 24 decided to take S. provisionally into care under section 11 of the Child
Welfare Act on the grounds that the applicant, because of her physical and mental
state of health, was considered incapable of taking care of her daughter. The
Chairperson considered that the child would be put at risk if the decision were not
implemented immediately.

In her application to the Commission, Ms. Johansen complained that there had been a
violation of her right to respect for family life as guaranteed by Article 8 of the
Convention (art. 8) on account of the order to take her daughter into public care, the
deprivation of her parental rights, the termination of her access to her daughter, the
excessive length of the proceedings and their lack of fairness.

ISSUE:

Whether or not there is a violation of Ms. Johansen rights as guaranteed by Article 8 of


the Convention.
HELD:

Article 8 of the Convention provides;

1. "1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic well-
being of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others."

The Court considers that taking a child into care should normally be regarded as a
temporary measure to be discontinued as soon as circumstances permit and that any
measures of implementation of temporary care should be consistent with the ultimate
aim of reuniting the natural parent and the child. In this regard, a fair balance has to be
struck between the interests of the child in remaining in public care and those of the
parent in being reunited with the child. In carrying out this balancing exercise, the Court
will attach particular importance to the best interests of the child, which, depending on
their nature and seriousness, may override those of the parent. In particular, as
suggested by the Government, the parent cannot be entitled under Article 8 of the
Convention (art. 8) to have such measures taken as would harm the child's health and
development.

In the present case the applicant had been deprived of her parental rights and access in
the context of a permanent placement of her daughter in a foster home with a view to
adoption by the foster parents. These measures were particularly far-reaching in that
they totally deprived the applicant of her family life with the child and were inconsistent
with the aim of reuniting them. Such measures should only be applied in exceptional
circumstances and could only be justified if they were motivated by an overriding
requirement pertaining to the child's best interests.

Therefore the Court reaches the conclusion that the national authorities overstepped
their margin of appreciation, thereby violating the applicant's rights under Article 8 of the
Convention (art. 8).
CASE NO. 42
United States of America vs. Iran (December 15, 1979)

FACTS:

On November 4, 1979, in the course of demonstration outside the United States


Embassy compound in Tehran, demonstrators attacked the Embassy premises. No
Iranian security forces intervened or were sent to relieve the situation, despite repeated
calls for help from the Embassy. The persons held hostage include at least 28 persons
having the status of ―member of the diplomatic staff‖ within the meaning of the Vienna
Convention on Diplomatic Relations of 1961.

The Government of the United States filed an Application and request for indication of
provisional measures before the International Court of Justice requesting the Court to
adjudge and declare that the Government of Iran violated its international obligations to
the United States as provided in the following: (1) Vienna Convention on Diplomatic
Relations; (2) Vienna Convention on Consular Relations; (3) Convention on the
Prevention and Punishment of Crimes Against Internationally Protected Persons; (4)
Treaty of Amity between the United States and Iran and; (5) Charter of the United
Nations.

The Government of the United States of America also asked the Court to issue, pending
the final decision in the case, the following provisional measures:
1. That the Government of Iran immediately release all hostages of United States
nationality and facilitate their prompt and safe departure from Iran.
2. That the Government of Iran immediately clear the premises of the United States
Embassy and restore the premises to United States control.
3. That the Government of Iran ensure that al, persons attached to the United
States Embassy be accorded the freedom of movement within Iran necessary to
carry out their diplomatic and consular functions.
4. That the Government of Iran not place on trial any person attached to the
Embassy of the United States.
5. That the Government of Iran ensure that no action is taken which might prejudice
the rights of the United States in respect of the carrying out of any decision which
the Court may render.

The Government of Iran maintains that the ICJ cannot and should not take cognizance
of the case, for the reason that the question of the hostages forms only ―a marginal and
secondary aspect of an overall problem‖ involving the activities of the United States in
Iran over a period of more than 25 years. Iran further maintains that the Islamic
revolution of Iran is essentially and directly a matter within the national sovereignty of
Iran. Iran also takes the position that since provisional measures are by definition
intended to protect the interests of the parties and thus cannot be unilateral as they are
in the request submitted by the American Government.

ISSUES:
i. Whether or not under the Vienna Convention on Diplomatic Relations and Vienna
Convention on Consular Relations, the ICJ had jurisdiction to hear the dispute
between the US and Iran.
ii. Whether or not to grant the US request for provisional measures would involve
passing judgment on the substance of the main dispute.

HELD:

The ICJ held a public hearing to allow the parties to present their observations on the
request for provisional measures. The Government of Iran was not represented at the
hearing. The ICJ declared that the non-appearance of one the States concerned
cannot by itself constitute an obstacle to the indication of provisional measures.

The Vienna Convention of 1961 and the Diplomatic and Consular Relations wherein US
and Iran are both parties to, provides that ―disputes arising out of the interpretation or
application of the Convention lies within the compulsory jurisdiction of the ICJ and may
accordingly be brought before the Court by an application made by any party to the
dispute being a party to the present Protocol.‖

The Court also stated that the seizure of the United States Embassy and detention of
internationally protected persons as hostages cannot be regarded as something
―secondary‖ or ―marginal.‖ The United Nations has indeed referred to these occurrences
as a ―grave situation posing a serious threat to international peace and security.‖

It is no doubt true that the Islamic revolution of Iran is a matter ―essentially and directly
within the national sovereignty of Iran.‖ However, a dispute which concerns diplomatic
and consular premises and the detention of internationally protected persons, and
involves the application of multilateral conventions codifying the international law
governing diplomatic and consular relations, is one which by its very nature falls within
international jurisdiction.

A request for provisional measures must by its very nature relate to the substance of the
case since, as Article 41 expressly states, their object is to preserve the respective
rights of either party; and whereas in the present case the purpose of the United States‘
request appears to be not to obtain a judgment, interim or final, on the merits of its
claims but to preserve the substance of the rights which it claims pendentelite.

The hypothesis of Iran that the provisional measures submitted by the US is unilateral
and thus improper is erroneous. Article 41 of the Statute refer explicitly to ―any
provisional measures which ought to be taken to preserve the rights of either party.‖
Article 73 of the Rules recognises that a request from one of the parties for measures to
preserve its own rights against action by the other party calculated to prejudice those
rights pendentelite follows that such a request for provisional measures is by its nature
unilateral.
The continuance of the situation the subject of the present request exposes the human
beings concerned to privation, hardship, anguish and even danger to life and health and
thus to a serious possibility of irreparable harm.

The Court unanimously grants the provisional measures requested by the US


Government and both parties are advised not to take any action which may aggravate
the tension between the two countries.
CASE NO. 43
Islamic Republic of Iran vs. United States of America, I.C.J. 161 (November 6,
2003)

FACTS:

On 2 November 1992, the Government of the Islamic Republic of Iran (hereinafter


called "Iran") filed in the Registry of the Court an Application instituting proceedings
against the Government of the United States of America (hereinafter called "the United
States") in respect of a dispute ―arising out of the attack [on] and destruction of three
offshore oil production complexes, owned and operated for commercial purposes by the
National Iranian Oil Company, by several warships of the United States Navy on 19
October 1987 and 18 April 1988, respectively‖.

In its Application, Iran contended that these acts constituted a ―fundamental breach‖ of
various provisions of the Treaty of Amity, Economic Relations and Consular Rights
between the United States and Iran, which was signed in Tehran on 15 August 1955
and entered into force on 16 June 1957 (hereinafter called ―the 1955 Treaty‖), as well as
of international law. The Application invoked, as a basis for the Court‘s jurisdiction,
Article XXI, paragraph 2, of the 1955 Treaty.

Time-limits for the filing of written pleadings were then fixed and subsequently extended
by two Orders of the President of the Court. On 16 December 1993, within the time-limit
fixed for the filing of the Counter-Memorial, the United States raised a preliminary
objection to the jurisdiction of the Court pursuant to Article 79, paragraph 1, of the Rules
of Court of 14 April 1978. By virtue of Article 79, paragraph 3, of the Rules of Court the
proceedings on the merits were suspended, fixed July 1, 1994 as the time limit within
which Iran might present a written statement of its observations and submissions on the
preliminary objection raised by the United States.

By a Judgment dated 12 December 1996 the Court rejected the preliminary objection of
the United States according to which the 1955 Treaty did not provide any basis for the
jurisdiction of the Court and found that it had jurisdiction, on the basis of Article XXI,
paragraph 2, of the 1955 Treaty, to entertain the claims made by Iran under Article X,
paragraph 1, of that Treaty. The United States Counter-Memorial included a counter-
claim concerning ―Iran‘s actions in the Gulf during 1987-88 which, among other things,
involved mining and other attacks on U.S.-flag or U.S.-owned vessels‖. By an Order of
10 March 1998 the Court held that this counter-claim was admissible as such and
formed part of the proceedings.

The Court held that the counter-claim presented by the United States was admissible as
such and formed part of the current proceedings. It also directed Iran to file a Reply and
the United States to file a Rejoinder, relating to the claims of both Parties, and fixed the
time-limits for the filing such as 10 September 1998 and 23 November 1999
respectively. The court held that it was necessary in order to ensure strict equality
between Parties, to reserve the right of the Iran to present its views in writing a second
time on the United States counter-claim, in an additional pleading the filing of which
might be the subject of the subsequent Order.

Such an Order was made by the Vice-President on 28 August 2001, and Iran
subsequently filed its additional pleading within the time-limits fixed. Public sittings on
the claim of Iran and the counter-claim of the United States of America were held from
17 February to 7 March 2003.

ISSUES:

i. Whether or not actions by American naval forces against the Iranian oil complexes
were justified under the 1955 Treaty as measures necessary to protect the essential
security interests of the United States
ii. Whether or not the United States, in destroying the platforms, had impeded their
normal operation, thus preventing Iran from enjoying freedom of commerce
―between the territories of the two High Contracting Parties‖ as guaranteed by the
1955 Treaty (Art. X, para. 1).
iii. Whether or not the incidents attributed by the United States to Iran infringed freedom
of commerce or navigation between the territories of the Parties as guaranteed by
Article X, paragraph 1, of the 1955 Treaty.

HELD:

1. Interpreting the Treaty in light of the relevant rules of international law, it concluded
that the United States was only entitled to have recourse to force under the provision in
question if it was acting in self-defence. The United States could exercise such a right of
self-defence only if it had been the victim of an armed attack by Iran and the United
States actions must have been necessary and proportional to the armed attack against
it. After carrying out a detailed examination of the evidence provided by the Parties, the
Court found that the United States had not succeeded in showing that these various
conditions were satisfied, and concluded that the United States was therefore not
entitled to rely on the provisions of Article XX, paragraph 1 (d), of the 1955 Treaty.

2. It concluded that, as regards the first attack, the platforms attacked were under repair
and not operational, and that at that time there was thus no trade in crude oil from those
platforms between Iran and the United States. Accordingly, the attack on those
platforms could not be considered as having affected freedom of commerce between
the territories of the two States. The Court reached the same conclusion in respect of
the later attack on two other complexes, since all trade in crude oil between Iran and the
United States had been suspended as a result of an embargo imposed by an Executive
Order adopted by the American authorities. The Court thus found that the United States
had not breached its obligations to Iran under Article X, paragraph 1, of the 1955 Treaty
and rejected Iran‘s claim for reparation.
3. In regard to the United States counter-claim, the Court, after rejecting the objections
to jurisdiction and admissibility raised by Iran, found that none of the ships alleged by
the United States to have been damaged by Iranian attacks was engaged in commerce
or navigation between the territories of the two States. Nor did the Court accept the
generic claim by the United States that the actions of Iran had made the Persian Gulf
unsafe for shipping, concluding that, according to the evidence before it, there was not,
at the relevant time, any actual impediment to commerce or navigation between the
territories of Iran and the United States. The Court accordingly rejected the United
States counter-claim for reparation.
CASE NO. 44
La Grand Case (Germany vs. USA) June 27, 2001

FACTS:

In 1982, two German nationals Karl and Walter LaGrand were tried and sentenced to death in
the State of Kansas without being advised of their rights to consular assistance, as guaranteed
to them by Art. 36, subpar.1 (b), of the Vienna Convention on Consular Relations.

It had been the contention of the authorities of the State of Arizona that they had been
unaware of the German nationality of the detainees. However, State Atty. Peasley revealed that
the authorities of the State of Arizona had indeed been aware all along.

Germany was unable to protect its interests as provided for in Arts. 5 and 36 of the Vienna
Convention. Similarly, it was unable to protect its detained national's interests as provided for
in those Articles.

Karl LaGrand was executed. The date of execution of Walter LaGrand had been set. An urgent
request for provisional measures is made in the case of Walter LaGrand. The importance and
sanctity of an individual human life are well established in international law. As recognized by
Art. 6 of the International Covenant on Civil and Political Rights, every human being has the
inherent right to life and this right shall be protected by law.

ISSUE:

Whether the United States breached its obligations under the Vienna Convention on Consular
Relations by failing to inform an arrested alien of the right to consular notification and to
provide judicial review of the alien’s conviction and sentence also violate individual rights held
by the alien under international law?

HELD:

Yes. Art. 36, par. 1, establishes an interrelated régime designed to facilitate the implementation
of the system of consular protection. It follows that when the sending State is unaware of the
detention of its nationals due to the failure of the receiving State to provide the requisite
consular notification without delay, which was true in the present case during the period
between 1982 and 1992, the sending State has been prevented for all practical purposes from
exercising its rights under Art. 36, par. 1. It is immaterial whether the LaGrands would have
sought consular assistance from Germany, whether Germany would have rendered such
assistance, or whether a different verdict would have been rendered. It is sufficient that the
Convention conferred these rights, and that Germany and the LaGrands were in effect
prevented by the breach of the United States from exercising them, had they so chosen.
Art. 36, par. 1(b), spells out the obligations the receiving State has towards the detained person
and the sending State. It provides that, at the request of the detained person, the receiving
State must inform the consular post of the sending State of the individual's detention "without
delay". It provides further that any communication by the detained person addressed to the
consular post of the sending State must be forwarded to it by authorities of the receiving State
"without delay". Significantly, this subparagraph ends with the following language: "The said
authorities shall inform the person concerned without delay of this rights under this
subparagraph". Moreover, under Art. 36, par. 1(c), the sending State's right to provide consular
assistance to the detained person may not be exercised "if he expressly opposes such action".
The clarity of these provisions, viewed in their context, admits of no doubt. It follows, as has
been held on a number of occasions, that the Court must apply these as they stand. Based on
the text of these provisions, the Court concludes that Art. 36, paragraph 1, creates individual
rights, which, by virtue of Art. 1 of the Optional Protocol, may be invoked in this Court by the
national State of the detained person. These rights were violated in the present case.
CASE NO. 45
The Abu Ghraib Prison Case (2004)

FACTS:

The Abu Ghraib prison in the town of Abu Ghraib was one of the most notorious prisons
in Iraq during the government of Saddam Hussein. The prison was used to hold
approximately 50,000 men and women in poor conditions, and torture and execution
were frequent. After the collapse of Saddam Hussein‘s Government, the prison was
looted and everything that was removable was carried away. Following the invasion,
the US army refurbished it and turned it into a military prison. It was the largest of
several detention centres in Iraq used by the US Military.

From late 2003 to early 2004, during the war in Iraq, military police personnel of the US
army and the Central Intelligence Agency committed human rights violations against
prisoners held in the Abu Ghraib prison. They physically and sexually abused, tortured,
raped, sodomized and killed prisoners. This came to the public attention in early 2004.
As revealed in the Taguba Report, an initial criminal investigation by the United States
Army Criminal Investigation Command had already been underway, in which the
soldiers of the 320th Military Police Battalion had been charged under the Uniform Code
of Military Justice with prisoner abuse. In April 2004, articles describing the abuse,
including pictures showing military personnel appearing to abuse prisoners, came to
wide public attention when an article in the New Yorker magazine reported the story.

The United States Department of Defense removed seventeen soldiers and officers
from duty, and eleven soldiers were charged with dereliction of duty, maltreatment,
aggravated assault and battery. Between May 2004 and March 2006, eleven soldiers
were convicted in courts-martial, sentenced to military prison and dishonourably
discharged from service.

The public later learned of what have been called the Torture Memos, prepared by the
Office of Legal Counsel, United States Department of Justice, which authorised certain
enhanced interrogation techniques of foreign detainees who were enemy combatants.
The deputy in the OLC, said that federal laws on use of torture did not apply to
American interrogators overseas. Several United States Supreme Court decisions have
overturned Bush administration policy related to treatment of detainees and ruled that
Geneva Conventions apply. In Hamdan v. Rumsfeld, the US Supreme Court ruled that
common Article Three of the Geneva Convention applied to all detainees in the War on
Terror. It said that the military tribunals used to try these suspects were in violation of
US and international law. It said that the president could not unilaterally establish such
tribunals, and that Congress needed to authorize a means by which detainees could
confront their accusers and challenge their detention.
LEGAL PROCEEDINGS:

On 9 June 2004, a group of 256 Iraqis sued CACI International and Titan Corporation
(now L-3 Services, part of L-3 Communications) in US federal court. The plaintiffs,
former prisoners, allege that the companies directed and participated in torture, war
crimes, crimes against humanity, sexual assault, as well as cruel, inhuman and
degrading treatment at Abu Ghraib prison. While the plaintiffs were detained at Abu
Ghraib they allege that they were raped, repeatedly beaten, detained in isolation,
urinated on, prevented from praying and forced to watch family members being
tortured. They further allege that the defendants were negligent in the hiring and
supervision of their employees in Iraq. The US Government had hired CACI and Titan
to provide interrogation and translation services at military prisons in Iraq.

On 10 September 2004 the defendant companies filed a motion to dismiss the


complaint. They argued that the subject matter of the claim constitutes a political
question and therefore can not be decided by the courts. The defendants also claimed
immunity from being sued because of their status as government contractors. The
plaintiffs argued that contractors were not immune because the alleged torture at the
prison fell outside the scope of the work they had contracted to perform. The district
judge denied the companies‘ motion to dismiss in June 2006.

In November 2007, the district judge granted summary judgment to Titan/L-3. The court
pointed out that unlike CACI employees, Titan employees performed their duties under
the direct command and exclusive operational control of the military. This military
control meant that Titan could preempt the plaintiffs‘ claims through government
contractor immunity. The court found that CACI employees were subject to a ―dual
chain of command‖—supervised by both CACI and the military—and therefore they
were not able to claim government contractor immunity. The plaintiffs and CACI
appealed the verdict.

The Court of Appeals ruled in favour of both defendants on 11 September 2009. It


agreed with the dismissal of the claims against Titan/L-3. With regard to the claims
against CACI, the court stated that although CACI employees were subject to a dual
chain of command, this did not detract from the military‘s operational control or the
degree to which CACI employees were integrated into a military mission. The court
ruled that CACI therefore also had government contractor immunity.

On 30 June 2008, 4 Iraqis previously detained at Abu Ghraib sued CACI International,
CACI Premier Technology and L-3 Services in US federal court. Similarly to the earlier
case against the same defendant companies, the plaintiffs alleged that the companies
participated in torture and other illegal conduct. On 20 August 2008, the court
dismissed plaintiffs‘ claims against L-3 Services. On 2 October 2008, the defendants
asked the court to dismiss the case. CACI‘s motion to dismiss was denied in part on 18
March 2009. On 23 March 2009, the defendants appealed the court‘s decision. On 11
May 2012, the federal appeals court rejected defendants‘ appeal, ruling that more facts
must be developed in the trial courts before it can consider the contractors‘ request to
dismiss the lawsuits. In October 2012, the plaintiffs in the lawsuit against L-3 reached a
confidential, out-of-court settlement with the company.

In the lawsuit against CACI (Al Shimari v. CACI), in March 2013 the court granted
CACI's motion to dismiss. The dismissal was without prejudice (meaning the plaintiffs
can refile an amended complaint) regarding their claims of conspiracy against CACI's
subsidiary -- CACI Premier Technology. On 4 April 2013 the plaintiffs filed an amended
complaint. On 24 April CACI filed a motion to dismiss the plaintiffs' Alien Tort Claims
Act claims on the basis of the US Supreme Court's decision in Kiobel v. Shell. On 26
June 2013, the district court dismissed the case finding that, as a result of the Supreme
Court‘s decision in Kiobel v. Shell, it lacked jurisdiction to hear the case under the Alien
Tort Claims Act because the incidents happened outside the United States. For the
balance of the plaintiffs‘ claims, the court concluded that CACI was immune from
lawsuits ―for claims arising from acts related to its contract or performed in connection
with military combat operations‖. The plaintiffs have appealed the dismissal. On 30
June 2014, the Fourth Circuit Court of Appeals overturned the lower court's dismissal
and ruled that the case had sufficient ties with the US for a US court to hear the
plaintiffs' claims, sending the case back to a lower court. The lower court granted
CACI‘s actions at Abu Ghraib were controlled by the US military and that assessing the
plaintiff‘s allegations would require the court to question ―actual, sensitive judgments
made by the military ―. The court concluded that the case thus presents a ―political
question‖ that the judiciary does not have the power to decide. In August 2015, the
plaintiffs appealed the decision. On 21 October 2016, the Fourth Circuit Court of
Appeals reinstated the lawsuit. The court ruled that the ―political question‖ doctrine does
not prevent courts from hearing cases concerning illegal acts committed by government
contractors, even if they are under control of the military. On 28 June 2017, a US court
ruled that claims for torture; cruel, inhuman, and degrading treatment; and war crimes
can be brought under Alien Tort Statute against private actors. In July 2017, CACI filed
a motion to dismiss the case. On 22 September 2017, a district court judge denied
CACI‘s request and ruled that the case should proceed.

On February 21, 2018, a Virginia federal judge ruled that the treatment of three Iraqi
individuals formerly detained at the infamous ―hard site‖ at Abu Ghraib prison in Iraq
constitutes torture, war crimes, and cruel, inhuman and degrading treatment, based on
a thorough review of U.S. domestic and international law. The ruling also held that the
men have sufficiently alleged that employees of private military contractor CACI Premier
Technology conspired to commit and aided and abetted these crimes. The case, Al
Shimari v. CACI, was filed nearly ten years ago, and CACI has repeatedly argued that,
even if its employees were involved in torture and other abuse, the company is shielded
from liability. The 54-page ruling definitively rejected that position, as well as attempts
by certain Bush-era officials to water down the prohibition against torture, and allowed
the lawsuit to proceed against CACI.

The Court concluded: ―it is clear that the abuse suffered by plaintiffs was intended to
inflict severe pain or suffering and rises to the level of torture.‖

Al Shimari v. CACI was filed under the Alien Tort Statute (ATS), which allows non-U.S.
citizens to sue for violations of international law committed abroad that ―touch and
concern‖ the United States. The opinion concludes that the political question doctrine is
inapplicable to ―cognizable claims‖ under the ATS.
CASE NO. 46
Ireland vs. The United Kingdom 2 EHHR 25 ( January 18, 1978)

FACTS:

This is a case concerning the threshold at which “cruel and unusual treatment” becomes
“torture” for the purposes of Article 3 of the European Convention on Human Rights
(ECHR), and the circumstances in which an Article 15 ―derogation in times of war or
other public emergency” permit a valid deviation from the standards imposed by Article
5 on “right to liberty and security” and Article 6 on “right to a fair trial”.

Before 1922, the island of Ireland was a constituent part of the United Kingdom. By the
1970's, a series of complicated political events had resulted in the island becoming two
separate nations:
i. The Irish Republic - an independent sovereign nation-state; and
ii. Northern Ireland that, at the time the events of this case took place, maintained a
separate Government and Parliament under the sovereignty of the United
Kingdom.

Despite this partition, tensions remained high between Northern Ireland's Protestant and
Catholic populations. This superficially religious divide was further characterized and
complicated by deep-rooted, social, and economic differences between the two
communities. Politically, the Catholics - who comprise around one third of Northern
Irelands population of 1.5 million - generally supported the idea of a united Ireland. The
Protestant community opposed it, preferring on the whole to remain part of the UK.

The situation deteriorated from 1970 onwards, as terrorist campaigns orchestrated by


Loyalists - Protestants who supported the union with the UK - and the Irish Republican
Army (IRA) - who aimed for a united Ireland - became more violent and deadly in
nature. The Northern Ireland Government maintains that the IRA perpetrated the
overwhelming majority of this violence. By March 1975, an estimated 1,100 people had
been killed, over 11,500 injured and more than £140,000,000 worth or property
destroyed as a result of violence that found its expression in part in civil disorders, in
part in terrorism perpetrated for political ends.

It was against this background that the Northern Ireland Government introduced
Operation Demetrius, which was a series of extrajudicial measures of detention and
internment of suspected terrorists. The principal target of these measures was
suspected members of the IRA, although it is accepted that some people would have
been wrongfully detained on the basis of inadequate or inaccurate information.

One of the more serious interrogation techniques used on fourteen prisoners became
known as the ―five techniques”. This consisted of the following:
i. Wall standing (forcing detainees to remain in a stress position for hours at a
time);
ii. Hooding (keeping a bag over detainees heads at all times, except during
interrogation);
iii. Subjection to continuous loud noise;
iv. Deprivation of sleep; and
v. Deprivation of food and drink.

It is probable that physical violence was sometimes used in the forcible application of
the five techniques. One prisoner spent three weeks in hospital after being subjected to
kicking and beating, during or between a series of interviews conducted by the Special
Branch. At least two detainees would go on to develop acute psychiatric symptoms as a
result of their interrogation.

The respondents (the UK) in this case argued that these measures were necessary
because normal procedures of law and order had become inadequate to deal with IRA
terrorists. Widespread intimidation made it impossible to obtain sufficient evidence to
secure a criminal conviction against known IRA terrorists in the absence of an
admissible confession or of police or army testimony. Large swathes of the Catholic
community had become "no-go" areas for the police and security forces. The
international border also posed challenges for law enforcement. These factors led the
respondents to conclude that there was no hope of winning over the terrorists by
political means. As such, these measures were necessary to countenance the threat
posed by an IRA, who were engaged in a highly organized, politically motivated
campaign designed to overthrow the State.

ISSUES:

The Irish government objected to these actions, alleging wide reaching breaches of the
ECHR.The ECtHR convened to consider the following points:
i. Whether the treatment of persons in custody constituted an administrative
practice in breach of Article 3;
ii. Whether internment without trial and detention constituted an administrative
practice in breach of Articles 5 and 6 in connection with Article 15;
iii. Whether Operation Demetrius - targeting IRA dissidents - amounted to
discrimination on the grounds of political opinion (which would breach the Article
14 prohibition of discrimination).

HELD:

The ECtHR found that the five techniques caused intense physical and mental suffering
to the persons subjected thereto and also led to acute psychiatric disturbances during
interrogation, but did not necessarily cause actual bodily injury.As such, the Court
concluded that the five techniques breached Article 3 as they amounted to inhuman and
degrading treatment. However, this treatment was not considered serious enough to
amount to torture, which was reserved for the most serious of breached of Article 3. The
Court determined that although Article 5 might have been breached, the existence of an
emergency that would permit derogation is perfectly clear from the facts, concluding that
no breach had occurred. The Court found that Article 6 overlapped with Article 5,
meaning that no further consideration was required. Finally, as the IRA perpetrated the
majority of the violence, the Court concluded that there was no tacit breach of Article 14.

The ECtHR's distinction between degrading treatment and torture for the purposes of
Article 3 highlights how torture under international law has a subjective element that
evolves over time. This flexibility - and the margin of appreciation afforded the UK in
determining the scope of derogation under Article 15 - has led some academics to fear
a devaluation of Convention rights and freedoms. The ECtHR's conclusion that use of
the five techniques did not amount to torture appears to have been cited by the US
Attorney General as legal authority that the interrogation techniques used by the USA in
Iraq, Afghanistan and Guantanamo Bay did not amount to torture under international
law.

However, one could equally argue that as the standards of human rights expected by
society grow, the Convention evolves to reflect them. Indeed, it has been said that if the
facts of this case were to be heard today, they would now be regarded as torture within
the meaning of Article 3 of the Convention. The case was also significant in establishing
a more general principle that the cumulative effect of mistreatment can amount to a
breach of Article 3. As the recent decision in Becciev v Moldovademonstrates, this can
still be the case where individual instances of mistreatment do not, in isolation, amount
to a breach of Article 3.
CASE NO. 47

Aksoy vs. Turkey, 23 EHRR 553 (18 December 1996)

FACTS:

The applicant, MrZekiAksoy, was a Turkish citizen who lived in Mardin, Kiziltepe, in
South-East Turkey, where he was a metal worker.

According to the applicant, he was taken into custody on 24 November 1992, between
11 p.m. and midnight. Approximately twenty policemen had come to his home,
accompanied by a detainee called Metin who, allegedly, had identified the applicant as
a member of the PKK (Workers‘ Party of Kurdistan), although MrAksoy told the police
that he did not know Metin.

He was detained, with two others, in a cell measuring approximately 1.5 x 3 metres,
with one bed and a blanket, but no pillow. He was provided with two meals a day. On
the second day of his detention he was stripped naked, his hands were tied behind his
back and he was strung up by his arms in the form of torture known as "Palestinian
hanging". While he was hanging, the police connected electrodes to his genitals and
threw water over him while they electrocuted him. He was kept blindfolded during this
torture, which continued for approximately thirty-five minutes. During the next two days,
he was allegedly beaten repeatedly at intervals of two hours or half an hour, without
being suspended. The torture continued for four days, the first two being very intensive.

MrAksoy complained that he had been subjected to treatment contrary to Article 3 of the
Convention (art. 3) during his detention in police custody in November/December 1992.

ISSUE:

Whether the facts of the case disclosed a breach by the respondent State of its
obligations under Articles 3 of the Convention.

HELD:

YES.

Article 3 of the Convention


"No one shall be subjected to torture or to inhuman or degrading treatment or
punishment."
The Court recalls that the Commission found, inter alia, that the applicant was subjected
to "Palestinian hanging", in other words, that he was stripped naked, with his arms tied
together behind his back, and suspended by his arms. In the view of the Court this
treatment could only have been deliberately inflicted; indeed, a certain amount of
preparation and exertion would have been required to carry it out. It would appear to
have been administered with the aim of obtaining admissions or information from the
applicant. In addition to the severe pain which it must have caused at the time, the
medical evidence shows that it led to a paralysis of both arms which lasted for some
time. The Court considers that this treatment was of such a serious and cruel nature
that it can only be described as torture. In view of the gravity of this conclusion, it is not
necessary for the Court to examine the applicant‘s complaints of other forms of ill-
treatment.

In conclusion, there has been a violation of Article 3 of the Convention (art. 3)


CASE NO. 48
Aydin v. Turkey, 25 EHRR 251 (September 25, 1997)

FACTS:

In 1984, members of the Workers‘ party of Kurdistan (PKK) called for the establishment
of an independent Kurdish state within Turkey – initiating an armed struggle against
Turkish security forces. This conflict would continue to grow through the mid-90s, and
by 1997 it had claimed the lives of 4,036 civilians.

Şukran Aydin was 17 years old when a group of village guards and a gendarme arrived
in her village. Four members of the group came to her family‘s home and questioned
them about recent visits PKK members had made to their house. After being subjected
to threats and insults, Şukran and her family were forcibly removed from their home and
taken to the village square where other villagers were also being held. Once they
arrived, Şukran, her father and her sister-in-law were blindfolded and driven to Derik
gendarmerie headquarters.

Şukran was separated from her family. For more than three days she was severely
beaten, stripped, sprayed with cold water from high-pressure jets while being spun in a
tyre. She was taken, clothed but blindfolded, to an interrogation room where a man in
military clothing forcibly removed her clothes and raped her. Before her release, Şükran
was forced to go back into the room where she had been raped. She was beaten for an
hour by multiple assailants and warned not to report what they had done to her.

When Şukran returned to her village, she (along with her father and sister-in-law) went
to the office of the public prosecutor to report what had happened. The public
prosecutor sent Şukran to see DrDenizAkkus, who he asked to determine whether
Şukran was a virgin and document the presence of any marks of physical violence or
injury. It was stated that Şükran‘s hymen had been torn and there was widespread
bruising around her thighs, but that DrAkkus could not establish when the hymen had
been torn. DrAkkus had no prior experience in examining rape survivors. Following this
examination, the public prosecutor sent Şukran for two other medical examinations by
separate doctors requesting that they determine if, and when, she had lost her virginity.
Following the launch of the investigation, Şukran and her family were subject to
continual harassment and intimidation to withdraw their complaints.

ISSUE:

Whether or not Turkey was responsible for violating Şukran‘s human rights?

HELD:

Yes. Rape of a detainee by an official of the state must be considered to be an


especially grave and abhorrent form of ill-treatment given the ease with which the
offender can exploit the vulnerability and weakened resistance of his victim.
Furthermore, rape leaves deep psychological scars on the victim which do not respond
to the passage of time as quickly as other forms of physical and mental violence.

Article 3 (prohibition of torture) and Article 13 ( right to an effective remedy) of European


Convention on Human Rights and Fundamental Freedoms, the Court recognised both
the intention and the gravity of Turkish officials‘ actions against Şukran while she was
detained. Torture, unlike inhuman or degrading treatment, is a category of human rights
violation qualified by the intention of the perpetrator and the intensity of suffering
inflicted. Or, as the Court stated ―…This distinction would appear to have been
embodied in the Convention to allow the special stigma of ―torture‖ to attach only to
deliberate inhuman treatment causing very serious and cruel suffering‖

The Court reasoned that Şukran‘s arrest could only be explained by the existence of
conflict in the region and Turkish security forces‘ need to gain information. The
treatment she suffered in detention, therefore, would also been seen as designed to
serve the same purpose. The accumulation of these deliberate acts against Şukran
were particularly terrifying, humiliating and kept her in a constant state of physical pain
and mental anguish – giving specific regard to Şukran‘s age, sex and circumstances
under which she was held. The Court acknowledged the rape of a detainee as an
―especially grave and abhorrent form of ill-treatment‖ noting the ease with which the
perpetrator may exploit the vulnerability and weakened resistance of the target. It also
acknowledged the physical and emotional suffering and the lasting psychological
trauma.
In this situation, the Court concluded that the physical and mental violence inflicted on
Şukran, especially the act of rape, amounted to torture under Article 3 of the ECHR.

Given the absolute nature of the right not to be tortured (under Article 3) and the
particular vulnerability torture survivors suffer, any complaint related to this right
requires states promptly initiate a thorough and effective investigation into the act
committed. The public prosecutor should have acted immediately to investigate Şukran
and her family‘s complaints. There should have been a thorough and effective
investigation into the allegation of rape, and the survivor should have been examined by
independent medical professionals with competence in this area. The investigation
should have collected evidence relating to the complaint, including an evaluation of the
claimant‘s psychological and emotional wellbeing, as well as documentation of her
injuries, and the view of an experienced medical practitioner as to whether these
indicated she had been raped. However, in this case, the public prosecutor‘s requests
to medical examiners focussed on ascertaining whether Şukran had lost her virginity.
Overall, the public prosecutor did not look for supporting evidence at the headquarters
and maintained a ―deferential attitude‖ toward the security forces.

Because Şukran‘s complaint was not thoroughly or effectively investigated with due
regard for the gravity of the crime she suffered, it can be reasoned that there was a lack
of evidence regarding her treatment in detention. This lack of evidence would
undermine the effectiveness of any other remedies that may have been available to her
otherwise, had the public prosecutor and medical examiners handled her complaints
adequately. And, because the public prosecutor plays a central role in remedies as a
whole, this failure amounted to a violation of Şukran‘s rights under Article 13 of the
ECHR for which Turkey could be held responsible.
GROUP 5

CASES

EASTERN GREENLAND CASE

CASE CONCERNING SOVEREIGNTY OVER PALAU LIGITAN AND PALAU


SIPADAN

CLIPPERTON ISLAND CASE

KASIKILI/ SEDUDU ISLAND CASE

UNITED STATES VS. HO. V. M. RUIZ

UNITED STATES OF AMERICA VS. HON. LUIS R. REYES

PAUL JOSEPH WRIGHT v. CA

KHOSROW MINUCHER V. CA

THE REPUBLIC OF INDONESIA VS. JAMES VINZON

Members:

Chua, Elisha

Dagsa, Loreine M.

Palarca, Alpa Joy

Pastorfide, Jan Patrick G.

Quintos, Lovelyn M.

Tabaco, Lex Conrad


EASTERN GREENLAND CASE

FACTS:

In the early 1920‘s, Norway has occupied and claim that Greenland is part of their territory, in
which Denmark also claims sovereignty. The Minister stated that Norway did not intend to
contest Danish sovereignty over the whole of Greenland. Denmark later sued Norway before the
Permanent Court of International Justice on the ground that Norway violated Danish sovereignty
in Eastern Greenland.

The Danish Government contended that Norway had given certain undertakings recognizing its
sovereignty over Greenland to the effect.

1. After termination of the Union between Denmark and Norway in 1814, the latter
undertook not to contend the Danish claim of sovereignty over Greenland. PCIJ held that
as a result of various undertaking resulting from the separation and culminating in Article
9 of the convention of September 1st, 1819, concluded that Norway acknowledged
Danish sovereignty and consequently it cannot occupy of any part thereof.
2. International Agreements: In many bilateral and multilateral agreements concluded
between Denmark and other countries including Norway, Greenland was described as
part of Denmark and has been excluded at the instance of the latter from operation of the
agreements. By ratifying such agreements, it is followed that Norway recognized whole
of Greenland as part of Denmark.
3. Ihlen Declaration: One of the bases for the Denmark's claim was the statement made by
Foreign Minister of Norway Mr. Ihlen in July, 1919 would render their claim for
sovereignty futile. Norway contented that his statement would not bind the Norwegian
Government as it lacked requisite authority.
4. Norway contented that Mr. Ihlen was in error as to the effect of his statement and the
consent was therefore invalid. Norway maintained that Mr. Ihlen had the knowledge of
the consequences of extension of Danish sovereignty i.e., elimination of Norwegian right
over fishing and hunting. Therefore, Mr. Ilhen has not consented to such declaration. The
Court did not entertain this argument as Mr. Ihlen's in ability to foresee the consequences
of his actions cannot be a valid ground.
Following are the arguments of Norway:

1. Ihlen's declaration is a mere diplomatic assurance of the benevolent attitude of the


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

Whether or not the Ihlen Declaration is binding upon the Norwegian government?

HELD:

PCIJ rejected the argument of Denmark that the declaration is recognition of existing Danish
sovereignty. However, the Court based on the relevant material concluded that the Norwegian
attitude in Greenland and Danish attitude in the Spitzbergen are interdependent. The affirmative
reply by the Minister had the ability of creating a bilateral engagement. Even if there is no such
engagement, what Norway desired from Denmark regarding Spitzbegen is similar to Denmark's
wish from Norway. Hence the reply by Mr. Ihlen on July 22nd, 1919 is definitely affirmative.
The PCIJ made the reply of Mr. Ihlen binding on the Norwegian Government by stating that:
―The Court considers it beyond all dispute that a reply of this nature given by the Minister for
Foreign Affairs on behalf of his Government in response to a request by the diplomatic
representative of a foreign Power, in regard to a question falling within his province, is binding
upon the country to which the Minister belongs.‖
PCIJ by twelve votes to two adjudged that the promulgation by the Norwegian Government on
July 10th, 1931 on occupation over Greenland and any steps in furtherance of the declaration
would amount to violation of existing legal situation and are accordingly unlawful and invalid.

To ascertain the legal status of Eastern Greenland, the PCJ relied on the following premises:

 The continuous and peaceful exercise of sovereignty over Greenland resulted in the title
towards Denmark.
 The Court made the Ihlen declaration binding thereby conferring the sovereignty to
Denmark.

CASE CONCERNING SOVEREIGNTY OVER PALAU LIGITAN AND PALAU


SIPADAN

FACTS:

On 2 November 1998, the Republic of Indonesia and Malaysia had jointly notified the ICJ
requesting them to determine, on the basis of the treaties, agreements and any other evidence
furnished by the two, to which the sovereignty of Palau Ligitan and Palau Sipadan belonged. In
connection, Indonesia cited a continuous presence of the Dutch and Indonesian navies in the
vicinity of Ligitan and Sipadan. It added that the waters around the islands had traditionally been
used by Indonesian fishermen. Malaysia however cited inter alia the measures taken by the North
Borneo authorities to regulate and control the collecting of turtle eggs on Palau Ligitan and Palau
Sipadan, an activity of some economic significance in the area at the time. It relied on the Turtle
Preservation Ordinance of 1917. It further invoked the fact that the authorities of the colony of
North Borneo had constructed a lighthouse on Sipadan in 1962 and another on Ligitan in 1963,
that those lighthouses still existed and that they had been maintained by Malaysian authorities
since its independence.

Shortly after the Philippines requested permission to intervene with the case indicating that the
object of its request was to ―preserve and safeguard the historical and legal rights [of its
Government] arising from its claim to dominion and sovereignty over the territory of North
Borneo, to the extent that those rights [were] affected, or [might] be affected, by a determination
of the Court of the question of sovereignty over Palau Ligitan and Palau Sipadan‖. Stating also
that the Philippines is not seeking to become a party in the case.

ISSUES:

a. Whether or not Indonesia or Malaysia has sovereignty over Palau Ligitan and Palau
Sipadan
b. Whether or not the Philippines application to intervene has merit
HELD:

a. The Court ruled in favor of Malaysia, After Examining the 1891 convention After
examining the 1891 Convention, the Court found that, when read in the context and in the
light of its object and purpose, that instrument could not be interpreted as establishing an
allocation line determining sovereignty over the islands out to sea, to the east of the
island of Sebatik, and that as a result the Convention did not constitute a title on which
Indonesia could found its claim to Palau Ligitan and Palau Sipadan. The court also stated
that, that conclusion was confirmed both by travauxpréparatoires.The Court further
held that the cartographic material submitted by the Parties in the case did not contradict
that conclusion.

The Court further stated that ―at the time when these activities were carried out, neither
Indonesia nor its predecessor, the Netherlands, [had] ever expressed its disagreement or
protest.‖

b. The Court delivered a Judgment by which it rejected the Application by the Philippines
for permission to intervene.
CLIPPERTON ISLAND CASE

FACTS:

Clipperton Island is an uninhabited island coral atoll in the eastern Pacific Ocean, southwest of
Mexico, west of Costa Rica and northwest of Galapagos Islands, Equador. It was named after
John Clipperon, an English pirate who fought the Spanish during the 18thcentury who is said to
have passed by the island. It was discovered by French discovers Martin de Chassiron and
Michel du Bocade in 1711, commanding the French ships La Princesse and La Découverte. They
drew up the first map and annexed it to France. The first scientific expedition took place in 1725
under Frenchman M. Bocage, who lived on the island for several months. Other claimants
included the United States, whose American Guano Mining Company claimed it under Guano
Islands Act of 1856. Mexico also claimed it due to activities undertaken therein as early as 1848-
1849. On November 17, 1858, Emperor Napoleon III annexed it as part of the French colony of
Tahiti. This did not settle the ownership question. After which, there were no apparent acts of
sovereignty on the part of France. The island remained without population. On November 24,
1897, French naval authorities found three Americans working for the American Guano
Company, who had raised the American flag. U.S. authorities denounced their act, assuring the
French that they did not intend to assert American sovereignty. Mexico reasserted its claim late
in the 19th century, and on December 13, 1897 sent the gunboat La Democrata to occupy and
annex it. A colony was established, and a series of military governors was posted, the last one
being Ramón Arnaud (1906 – 1916). France insisted on its ownership, and a lengthy diplomatic
correspondence between the two nations led to the conclusion of a treaty on March 2, 1909, to
seek the arbitration of King Victor Emmanuel III of Italy, with each nation promising to abide by
his determination. All the inhabitants of the island sent by Mexico died in 1917. On January 28,
1931, King Victor Emmanuel of Italy declared Clipperton to be a French possession. It was ruled
that Mexico was not able to prove historic right over the Island.

HELD:

When France proclaimed her sovereignty over Clipperton, the Island was in a legal situation of
terra nullius, and therefore susceptible to occupation. By the regularity of the act of France, it is
clear that it had the intention to consider the island as his territory. It is beyond doubt that by
immemorial usage having the force of law, besides the animus occupandi, the actual, and not the
nominal, taking of possession is a necessary condition of occupation. This taking of possession
consists in the act, or series of acts, by which the occupying state reduces to its possession the
territory in question and takes steps to exercise exclusive authority there. Strictly speaking, and
in ordinary cases, that only takes place when the state establishes in the territory itself an
organization capable of making its laws respected. But this step is, properly speaking, but a
means of procedure to the taking of possession, and, therefore, is not identical with the latter.
There may also be cases where it is unnecessary to have recourse to this method. Thus, if a
territory, by virtue of the fact that it was completely uninhabited, is, from the first moment when
the occupying state makes its appearance there, at the absolute and undisputed disposition of that
state, from that moment the taking of possession must be considered as accomplished, and the
occupation is thereby completed.
KASIKILI/ SEDUDU ISLAND CASE

FACTS:

On 29 May 1996, Botswana and Namibia jointly notified to the Registrar the text of a Special
Agreement signed at Gaborone (Botswana) on 15 February 1996 and having entered into force
on 15 May 1996 for the submission to the Court of a dispute between them concerning the
boundary around Kasikili/Sedudu Island. The Special Agreement referred inter alia to a Treaty
signed on 1 July 1890 between Great Britain and Germany delimiting their respective spheres of
influence in Africa. Under the terms of the Special Agreement, the Parties asked the Court to
"determine, on the basis of the Anglo-German Treaty of 1 July 1890 and the rules and principles
of international law, the boundary between Namibia and Botswana around Kasikili/Sedudu
Island and the legal status of the island". The island in question, which in Namibia is known as
Kasikili, and in Botswana as Sedudu, is approximately 3.5 square kilometres in area, is located in
the Chobe River, which divides around it to the north and south, and is subject to flooding of
several months' duration, beginning around March each year.

The Court based its reasoning on the text of the 1890 Treaty which, in respect of the region
concerned, locates the dividing line between the spheres of influence of Great Britain and
Germany in the "main channel" of the River Chobe. In the Court's opinion, the real dispute
between the Parties concerned the location of that main channel, Botswana contending that it is
the channel running north of Kasikili/Sedudu Island and Namibia the channel running south of
the island. Since the Treaty does not define the notion of "main channel", the Court itself
proceeded to determine which is the main channel of the Chobe River around the Island.

In order to do so, it took into consideration, inter alia, the depth and the width of the channel, the
flow (i.e., the volume of water carried), the bed profile configuration and the navigability of the
channel. After having considered the figures submitted by the Parties, as well as surveys carried
out on the ground at different periods, the Court concluded that the northern channel of the River
Chobe around Kasikili/Sedudu Island had to be regarded as its main channel.

After evoking the object and purpose of the 1890 Treaty, and its travauxpréparatoires, the Court
examined at length the subsequent practice of the parties to the Treaty. The Court found that this
practice did not result in any agreement between them regarding the interpretation of the Treaty
or the application of its provisions. The Court further stated that it could not draw conclusions
from the cartographic material in view of the absence of any map officially reflecting the
intentions of the parties to the 1890 Treaty and in the light of the uncertainty and inconsistency
of the maps submitted by the Parties to the dispute.

The Court finally considered Namibia's alternative argument that it and its predecessors had
prescriptive title to Kasikili/Sedudu Island by virtue of the exercise of sovereign jurisdiction over
it since the beginning of the century, with full knowledge and acceptance by the authorities of
Botswana and its predecessors. The Court found that while the Masubia of the Caprivi Strip
(territory belonging to Namibia) did indeed use the Island for many years, they did so
intermittently, according to the seasons, and for exclusively agricultural purposes, without it
being established that they occupied the Island à titre de souverain, i.e., that they were exercising
functions of State authority there on behalf of the Caprivi authorities. The Court therefore
rejected this argument.

After concluding that the boundary between Botswana and Namibia around Kasikili/Sedudu
Island followed the line of deepest soundings in the northern channel of the Chobe and that the
Island formed part of the territory of Botswana, the Court recalled that, under the terms of an
agreement concluded in May 1992 (the "Kasane Communiqué"), the Parties have undertaken to
one another that there shall be unimpeded navigation for craft of their nationals and flags in the
channels around the Island.

HELD:

In her Declaration on the judgment, Judge Higgins emphasized the need to take into account
contemporary knowledge in the area, which would point to a lesser role of the navigability of the
river and a greater weight on the physical appearance of the area. Judge Ranjeva, in his
Declaration, interpreted the findings of the Court as the least improbable solution in the absence
of a systematic comparison of the two channels of the river. Judge Koroma stressed that the
equal use of the river for navigation, as set out in the Kasane Communiqué, reflected
contemporary principles of the law of international watercourses.

Judge Oda, in a Separate Opinion, deplored the fact that the Court had not sought the assistance
of experts in order to clarify the location of the main channel. Moreover, unlike the Court, he
considered as important the practice of several decades to regard the northern channel as
separating the banks of the Chobe River. Judge Kooijmans found that Namibia's argument based
on prescription should have been declared inadmissible given the relevance of the 1890 treaty; he
also stressed that the rule of equitable utilization of watercourses, as contained in the Kasane
Communiqué, had become well-established in international law.

Vice-President Weeramantry and Judges Parra-Aranguren and Rezek, in their Dissenting


Opinions, placed special emphasis on the unopposed use of the island in question by the
Masubian people. Judges Parra-Anguren and Rezek also regretted that the Court had accorded
too little weight to other instances of subsequent practice, to the equitable use of watercourses
and cartography. Judge Fleischhauer, in his Dissenting Opinion, likewise disagreed with the
Court's finding of the northern channel as the boundary. In the view of Vice-President
Weeramantry, who, like the other dissenters, regarded the Island as belonging to Namibia, a joint
international régime should have been set up to safeguard environmental interests.

UNITED STATES VS. HO. V. M. RUIZ


G.R. No. L-35645 May 22, 1985

FACTS:

The United States of America had a naval base in Subic, Zambales. The base was one of those
provided in the Military Bases Agreement between the Philippines and the United States. In May
1972, the United States of America invited the submission of bids for certain projects in which
Eligio De Guzman & Co. responded and submitted bids. In 1972, the company received a letter
stating that they did not qualify to receive the award for projects because of its unsatisfactory
performance rating. The company sued the United States of America and asked for the issuance
of a writ of preliminary injunction. The defendants filed a motion to dismiss and questioned the
jurisdiction of the court over the subject matter of the complaints and the persons of defendants,
the subject matter of the complaint being acts and omissions of the individual defendants as
agents of defendant United States of America, a foreign sovereign. The trial court denied the
motion and issued the writ.

ISSUE:

Whether or not the court have jurisdiction over the defendants.

HELD:

NO. The traditional rule of State immunity exempts a State from being sued in the courts of
another State without its consent or waiver. This rule is a necessary consequence of the
principles of independence and equality of States. The restrictive application of State immunity
is proper only when the proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to
have descended to the level of an individual and can thus be deemed to have tacitly given its
consent to be sued only when it enters into business contracts. It does not apply where the
contract relates to the exercise of its sovereign functions. In this case the projects are an integral
part of the naval base which is devoted to the defense of both the United States and the
Philippines, indisputably a function of the government of the highest order; they are not utilized
for nor dedicated to commercial or business purposes.

UNITED STATES OF AMERICA and MAXINE BRADFORD, petitioners, vs. HON.


LUIS R. REYES
G.R. No. 79253 March 1, 1993

FACTS:

Private respondent, hereinafter referred to as Montoya, is an American citizen who, at the time
material to this case, was employed as an identification (I.D.) checker at the U.S. Navy Exchange
(NEX) at the Joint United States Military Assistance Group (JUSMAG) headquarters in Quezon
City. As a consequence of an incident which occurred on 22 January 1987 whereby her body and
belongings were searched after she had bought some items from the retail store of the NEX
JUSMAG, where she had purchasing privileges, and while she was already at the parking area,
Montoya filed on 7 May 1987 a complaint with the RTC against Bradford for damages due to the
oppressive and discriminatory acts committed by the latter in excess of her authority as store
manager of the NEX JUSMAG. Bradford filed a motion to dismiss on the following grounds:
that the action is in effect a suit against the United States of America, a foreign sovereign
immune from suit without its consent for the cause of action pleaded in the complaint; and
Defendant, Maxine Bradford, as manager of the US Navy Exchange Branch at JUSMAG,
Quezon City, is immune from suit for act(s) done by her in the performance of her official
functions under the Philippines-United States Military Assistance Agreement of 1947 and
Military Bases Agreement of 1947. The court ruled against the defendant Bradford.

ISSUE:

whether or not the trial court committed grave abuse of discretion in denying the motion to
dismiss based on the following grounds: (a) the complaint is in effect a suit against the public
petitioner, a foreign sovereign immune from suit which has not given consent to such suit and (b)
Bradford is immune from suit for acts done by her in the performance of her official functions as
manager of the U.S.

HELD:

NO. The doctrine of immunity from suit will not apply and may not be invoked where the public
official is being sued in his private and personal capacity as an ordinary citizen. The cloak of
protection afforded the officers and agents of the government is removed the moment they are
sued in their individual capacity. This situation usually arises where the public official acts
without authority or in excess of the powers vested in him. It is a well-settled principle of law
that a public official may be liable in his personal private capacity for whatever damage he may
have caused by his act done with malice and in bad faith, or beyond the scope of his authority or
jurisdiction.

Since it is apparent from the complaint that Bradford was sued in her private or personal capacity
for acts allegedly done beyond the scope and even beyond her place of official functions, said
complaint is not then vulnerable to a motion to dismiss based on the grounds relied upon by the
petitioners because as a consequence of the hypothetical admission of the truth of the allegations
therein, the case falls within the exception to the doctrine of state immunity.

There can be no doubt that on the basis of the allegations in the complaint, Montoya has a
sufficient and viable cause of action. Bradford's purported non-suability on the ground of state
immunity is then a defense which may be pleaded in the answer and proven at the trial.

PAUL JOSEPH WRIGHT v. CA


G.R. No. 113213 August 15, 1994

FACTS:
Australia and the Government of the Philippines countries entered into a Treaty of Extradition on
March 7, 1988. The said treaty was ratified in accordance with the Constitution in a Resolution
adopted by the Senate on September 10, 1990 and became effective thirty (30) days after both
States notified each other in writing that the respective requirements for the entry into force of
the Treaty have been complied with.

The Treaty adopts a ―non-list, double criminality approach‖ which provides for broader coverage
of extraditable offenses between the two countries and (which) embraces crimes punish-able by
imprisonment for at least one (1) year. Additionally, the Treaty allows extradition for crimes
committed prior to the treaty‘s date of effectivity, provided that these crimes were in the statute
books of the requesting State at the time of their commission.

In 1993, the Government of Australia sent a formal request for the extradition of Paul Joseph
Wright, an Australian Citizen sought by Australian authorities for indictable crimes in his
country. The formal request for extradition showed that he was wanted for several counts of
Obtaining Property by Deception, Attempting to Obtain Property by Deception,and one count of
Perjury, contrary to laws then existing in Australia.

Extradition proceedings were filed before the Regional Trial Court of Makati, which rendered a
decision ordering the deportation of petitioner Wright. Said decision was sustained by the Court
of Appeals; hence, petitioner came to the Supreme Court by way of review on certiorari, to set
aside the order of deportation.

Petitioner contends that the provision of the Treaty giving retroactive effect to the extradition
treaty amounts to an ex post facto law which violates Section 21 of Article VI of the
Constitution.

ISSUE:

Whether or not the Treaty‘s retroactive application violates the constitutional prohibition against
ex-post facto laws

HELD:

No. As conceived under our Constitution, ex post facto laws are 1) statutes that make an act
punishable as a crime when such act was not an offense when committed; 2) laws which, while
not creating new offenses, aggravate the seriousness of a crime; 3) statutes which prescribe
greater punishment for a crime already committed; or, 4) laws which alter the rules of evidence
so as to make it substantially easier to convict a defendant.
―Applying the constitutional principle, the (Court) has held that the prohibition applies only to
criminal legislation which affects the substantial rights of the accused.‖ This being so, there is
absolutely no merit in petitioner‘s contention that the ruling of the lower court sustaining the
Treaty‘s retroactive application with respect to offenses committed prior to the Treaty‘s coming
into force and effect, violates the Constitutional prohibition against ex post facto laws. As the
Court of Appeals correctly concluded, the Treaty is neither a piece of criminal legislation nor a
criminal procedural statute. ―It merely provides for the extradition of persons wanted
forprosecution of an offense or a crime which offense or crime was already committed or
consummated at the time the treaty was ratified.‖

KHOSROW MINUCHER V. CA
G.R. No. 142396 February 11, 2003

FACTS:

In May 1986, an Information for violation of the ―Dangerous Drugs Act of 1972,‖ was filed
against petitioner KhosrowMinucher and one Abbas Torabian with the Regional Trial Court of
Pasig City. The criminal charge followed a ―buy-bust operation‖ conducted by the Philippine
police narcotic agents in the house of Minucher, an Iranian national, where a quantity of heroin,
a prohibited drug, was said to have been seized. The narcotic agents were accompanied by
private respondent Arthur Scalzo who would, in due time, become one of the principal witnesses
for theprosecution. On January 8, 1988, Presiding Judge EutropioMigrino rendered a decision
acquitting the two accused.

On August 3, 1988, Minucher filed an action for damages on account of what he claimed to have
been trumped-up charges of drug trafficking made by Scalzo.

Scalzo later filed a motion to dismiss the complaint on the ground that, being a special agent of
the United States Drug Enforcement Administration, he was entitled to diplomatic immunity.

ISSUE:

Whether or notScalzo is indeed entitled to diplomatic immunity

HELD:

Yes. A foreign agent, operating within a territory, can be cloaked with immunity from suit but
only as long as it can be established that he is acting within the directives of the sending state.
The consent of the host state is an indispensable requirement of basic courtesy between the two
sovereigns.

While evidence is wanting to show any similar agreement between the governments of the
Philippines and of the United States (for the latter to send its agents and to conduct surveillance
and related activities of suspected drug dealers in the Philippines), the consent or imprimatur of
the Philippine government to the activities of the United States Drug Enforcement Agency,
however, can be gleaned from the facts heretofore elsewhere mentioned: 1)the official exchanges
of communication between agencies of the government of the two countries; 2) certifications
from officials of both the Philippine Department of Foreign Affairs and the United States
Embassy; and 3) the participation of members of the Philippine Narcotics Command in the ―buy-
bust operation‖ conducted at the residence of Minucher at the behest of Scalzo.

Although these may be inadequate to support the ―diplomatic status‖ of the latter, they give
enough indication that the Philippine government has given itsimprimatur, if not consent, to the
activities within Philippine territory of agent Scalzo of the United States Drug Enforcement
Agency.

The job description of Scalzo has tasked him to conduct surveillance on suspected drug suppliers
and, after having ascertained the target, to inform local law enforcers who would then be
expected to make the arrest. In conducting surveillance activities on Minucher, later acting as the
poseur-buyer during the buy-bust operation, and then becoming a principal witness in the
criminal case against Minucher, Scalzo hardly can be said to have acted beyond the scope of his
official function or duties.

In sum, Scalzo, an agent of the United States Drug Enforcement Agency allowed by the
Philippine government to conduct activities in the country to help contain the problem on the
drug traffic, is entitled to the defense of state immunity from suit.

THE REPUBLIC OF INDONESIA VS. JAMES VINZON


G.R. No. 154705 June 26, 2003

FACTS:

Petitioner, Republic of Indonesia, represented by its Counsellor, SitiPartinah, entered into a


Maintenance Agreement in August 1995 with respondent James Vinzon, sole proprietor of
Vinzon Trade and Services. The Maintenance Agreement stated that respondent shall, for a
consideration, maintain specified equipment at the Embassy Main Building, Embassy Annex
Building and the Wisma Duta, the official residence of petitioner Ambassador Soeratmin. It is
likewise stated therein that the agreement shall be effective for a period of four years and will
renew itself automatically unless cancelled by either party by giving thirty days prior written
notice from the date of expiry.

Petitioners claim that sometime prior to the date of expiration of the said agreement, or before
August 1999, they informed respondent that the renewal of the agreement shall be at the
discretion of the incoming Chief of Administration, Minister Counsellor AzhariKasim, who was
expected to arrive in February 2000. When Minister Counsellor Kasim assumed the position of
Chief of Administration in March 2000, he allegedly found respondent‘s work and services
unsatisfactory and not in compliance with the standards set in the Maintenance Agreement.
Hence, the Indonesian Embassy terminated the agreement in a letter dated August 31, 2000. On
the other hand, respondent claims that the aforesaid termination was arbitrary and unlawful.
Hence, on December 15, 2000, respondent filed a complaint against petitioners in the Regional
Trial Court (RTC) of Makati.

However Petitioners filed a Motion to Dismiss, alleging that the Republic of Indonesia, as a
foreign sovereign State, has sovereign immunity from suit and cannot be sued as a party-
defendant in the Philippines. In turn, respondent filed on March 20, 2001, an Opposition to the
said motion alleging that the Republic of Indonesia has expressly waived its immunity from suit.

The trial court ruled in favor of the respondent. The Court of Appeals sustained trial court‘s
decision that petitioners have waived their immunity from suit by using as its basis the provision
in the Maintenance Agreement.

ISSUE:

Whether or not the Petitioners have waived their immunity from suit based on the provision in
the Maintenance Agreement.

HELD:

The petition is impressed with merit.

The immunity of the sovereign is recognized only with regard to public acts or acts jure imperii,
but not with regard to private acts or acts jure gestionis. However, the mere entering into a
contract by a foreign State with a private party cannot be construed as the ultimate test of
whether or not it is an act jure imperii or jure gestionis. Such act is only the start of the inquiry.
Is the foreign State engaged in the regular conduct of a business? If the foreign State is not
engaged regularly in a business or commercial activity, and in this case it has not been shown to
be so engaged, the particular act or transaction must then be tested by its nature. If the act is in
pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii. Hence, the
existence alone of a paragraph in a contract stating that any legal action arising out of the
agreement shall be settled according to the laws of the Philippines and by a specified court of the
Philippines is not necessarily a waiver of sovereign immunity from suit. The aforesaid provision
contains language not necessarily inconsistent with sovereign immunity.

There is no dispute that the establishment of a diplomatic mission is an act jure imperii. A
sovereign State does not merely establish a diplomatic mission and leave it at that; the
establishment of a diplomatic mission encompasses its maintenance and upkeep. Hence, the State
may enter into contracts with private entities to maintain the premises, furnishings and
equipment of the embassy and the living quarters of its agents and officials. It is there There is
no dispute that the establishment of a diplomatic mission is an act jure imperii. A sovereign State
does not merely establish a diplomatic mission and leave it at that; the establishment of a
diplomatic mission encompasses its maintenance and upkeep. Hence, the State may enter into
contracts with private entities to maintain the premises, furnishings and equipment of the
embassy and the living quarters of its agents and officials.

CASE CONCERNING KASIKILI/ SEDUDU ISLAND

Facts:

On May 17th 1996 Botswana and Namibia jointly filed a submission to the International Court
of Justice requesting the Court‘s settlement of a boundary dispute around Kasikili/Sedudu Island.
Accompanying this request, Botswana and Namibia jointly submitted the text of a Special
Agreement signed on February 15th, 1996 referencing the Anglo German Treaty of July 1890.
This treaty established an agreement between the colonial powers of Great Britain and Germany
and their respective spheres of influence over the two African nations. On these grounds and the
principles of international law, both parties requested ―the boundary between Namibia and
Botswana around Kasikili/Sedudu Island and the legal status of the island.‖ The Court ruled by
eleven votes to four, that the boundary follows the Chobe River around the island and that the
island itself forms part of the territory of Botswana. The plaintiff, the nation of Botswana,
argued that the island should be considered its territory unless it could be proven that the main
channel passes through the south region of the island, and therefore falls within the sovereignty
of Namibia. Botswana held that the north and west channels of the Chobe River constitute the
―main channel‖, and in accordance with the provisions of the Anglo-German Agreement of
1890, establish the boundary between the two nations. Accordingly, Kasikili/Sedudu Island falls
exclusively within the sovereignty of Botswana. The defendant, Namibia, claimed that the main
channel of the Chobe River indeed passes through the south of the island and that ―Namibia and
its predecessors had occupied, used, and exercised sovereign jurisdiction over Kasikili Island
[with the knowledge and acquiescence of Botswana] since at least 1890.‖2 As such,
Kasikili/Sedudu Island is a territory governed by the sovereignty of Namibia.
Issue

1. Where exactly is the main channel of the Chobe located geographically in relation to
Kasikili/Sedudu Island?
2. How is the ―main channel‖ defined and observed in relation to both nations, Botswana
and Namibia?
3. What exactly is the dividing line between the colonial spheres of influences [established
by the provisions of the Anglo-German Agreement of 1890], and why is this specific
division important?
4. To what extend had Namibia ―officially‖ occupied and exercised sovereignty over
Kasikili/Sedudu Island?
5. Is navigability a legitimate criteria to be used for identifying and delineating the path of
the Chobe River‘s ―main‖ channel?

Ruling:

On December 13th, 1999 the Court delivered its official judgment. The Court held, with eleven
votes to four, that ―the boundary between Namibia and Botswana around Kasikili/Sedudu Island
followed the line of deepest soundings in the northern channel of the Chobe and that the island
forms part of the territory of Botswana.‖ The Court also ruled that while Namibia had
historically occupied the island, the State functions in which it participated during seasonal
occupation did not constitute ownership.

On December 13th, 1999 the Court delivered its official judgment. The Court held, with eleven
votes to four, that ―the boundary between Namibia and Botswana around Kasikili/Sedudu Island
followed the line of deepest soundings in the northern channel of the Chobe and that the island
forms part of the territory of Botswana.‖ The Court also ruled that while Namibia had
historically occupied the island, the State functions in which it participated during seasonal
occupation did not constitute ownership. Republic of Botswana and the Republic of Namibia
shall enjoy equal national treatment.

The ability of the ICJ to resolve this dispute is significant primarily because it resolved a long-
standing border dispute between the two African nations of Botswana and Namibia. This case is
also important because bridges the gap between law and science and demonstrates the extent to
which great difficulty exists in reconciling the two in a modern context. Of particular interest
here is the fact that in addition to the ten lawyers, six scientists also participated in court
proceedings to resolve this dispute. This was a necessary means of creating balance between
historical precedents and the legal strain of this procedure on a scientist‘s logical rationale. This
case also revealed that in essence the dispute centered on both parties‘ desire to procure political.
The ability of the ICJ to resolve this dispute is significant primarily because it resolved a long-
standing border dispute between the two African nations of Botswana and Namibia. This case is
also important because bridges the gap between law and science and demonstrates the extent to
which great difficulty exists in reconciling the two in a modern context. Of particular interest
here is the fact that in addition to the ten lawyers, six scientists also participated in court
proceedings to resolve this dispute. This was a necessary means of creating balance between
historical precedents and the legal strain of this procedure on a scientist‘s logical rationale. This
case also revealed that in essence the dispute centered on both parties‘ desire to procure political.

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