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8.PUBLIC LAW; CRIMINAL LAW; EFFECT OF Yes, the Philippine courts have jurisdiction on
TRANSFER OF TERRITORY.— The political the case. Piracy is a villainy not against any
law of the former sovereignty is necessarily particular state but against all mankind. It
changed. The municipal law in so far as it is should be tried and punished in the sufficient
consistent with the Constitution, the laws of the tribunal of any country where the offender may
be found or into which he may be carried. The agreed that "Until a complete code of the laws
jurisdiction of piracy, unlike all other crimes, of war has been issued, the High Contracting
has no territorial limits. Parties deem it expedient to declare that in
cases not included in the Regulations adopted
by them, the inhabitants and the belligerents
remain under the protection and the rule of the
o Tubb v. Greiss, 78 Phil. 249 principles of international law, as they result for
(1947) the usages established among civilized
peoples, from the laws of humanity, and the
1. INTERNATIONAL LAW; UNITED STATES
dictates of public conscience."
ARMY IN THE PHILIPPINES; SUBMISSION
OF AMERICAN EMPLOYEES TO MILITARY 2.ID. ; ID.; ID.; ID.; RIGHTS OF
LAW BY CONTRACT; CASE AT BAR.—In the BELLIGERENT OCCUPANT OVER ENEMY
contract of employment entered into by PUBLIC OR PRIVATE PROPERTY.—Before
petitioners with the United States Army, they the Hague Convention, it was the usage or
voluntarily submitted themselves to United practice to allow or permit the confiscation or
States military law while serving said contract, appropriation by the belligerent occupant not
thereby submitting themselves to the full extent only of public but also of private property of the
of the authority of the United States Army in enemy in a territory occupied by the belligerent
this area. This, coupled with the fact that hostile army; and as such usage or practice
petitioners are American citizens, makes their was allowed, a fortiori, any other act short of
position during the subsistence of said contract confiscation was necessarily permitted. Section
no different from that of enlisted men, III of the Hague Regulations only prohibits the
enlistment after all being nothing more than a confiscation of private property by order of the
contract of voluntary service in the armed military authorities (art. 46), and pillage or
forces of one's country. Petitioners then, in stealing and thievery thereof by individuals (art.
relation to the United States Army in the 47); and as regards public property, article 53
Philippines and during the subsistence of their provides that cash funds, and property liable to
employment contract, can be deemed to requisition and all other movable property
possess the status of military personnel. belonging to the State susceptible of military
use or operation, may be confiscated or taken
2.ID.; EXEMPTION OF FOREIGN ARMY
possession of as a booty and utilized for the
FROM LOCAL ClVIL AND CRIMINAL
benefit of the invader's government (II
JURISDICTION.—A foreign army allowed to
Oppenheim, 8th ed., sec., 137; 320 & 321, War
march through a friendly country or to be
Department; Basic Field Manual, Rules of Land
stationed in it, by permission of its government
Warfare FM 27-10). The belligerents in their
or sovereign, is exempt from the civil and
effort to control enemy property within their
criminal jurisdiction of the place.
jurisdiction or in territories occupied by their
o Haw Pia v. China Banking, 80 armed forces in order to avoid their use in aid
Phil. 604 (1948) of the enemy and to increase their own
resources, after the Hague Convention and
1.INTERNATIONAL LAW; LAND WARFARE; specially during the first World War, had to
THE HAGUE REGULATIONS; UNFORESEEN resort to such measures of prevention which do
CASES.—The provisions of the Hague not amount to a straight confiscation, as
Regulations, section III, on Military Authority freezing, blocking, placing under custody and
over Hostile Territory, which is a part of the sequestrating the enemy private property. Such
Hague Convention respecting the laws and acts are recognized as not repugnant to the
customs of war on land, are intended to serve provisions of article 46 or any other article of
as a general rule of conduct for the belligerents the Hague Regulations by well-known writers
in their relations with each other and with the on International Law, and are authorized not
inhabitants, but as it had not been found only in the Army and Navy Manual of Military
possible then to concert regulations covering Government and Civil Affairs not only of the
all the circumstances which occur in practice, United States, but also in similar manuals of
and on the other hand it could not have been Army and Navy of other civilized countries, as
intended by the High Contracting Parties that well as in the Trading with the Enemy Acts of
the unforeseen cases should, in the absence of said countries.
a written undertaking, be left to the arbitrary
judgment of military commanders, it was
3.ID.; ID.; ID.; ID.; ID.; SEQUESTRATION, occupied by the United States armed forces,
PURPOSE OF.—The purpose of sequestration because section 2 of said Act provides "That
is well expounded in the Annual Report of the the words 'United States,' as used herein, shall
Office of the Alien Custodian for a period from be deemed to mean all land and water,
March 11, 1943, to June 30, 1943. "In the continental or insular, in any way within the
absence of effective measures of control, jurisdiction of the United States or occupied by
enemy-owned property can be used to further the military or naval forces thereof." After the
the interest of the enemy and to impede our liberation of the Philippines during World War
own war effort. All enemy-controlled assets can II, properties belonging to Japanese nationals
be used to finance propaganda, espionage, located in this country were taken possession
and sabotage in this country or in countries of by the Alien Property Custodian appointed
friendly to our cause. They can be used to by the President of the United States under the
acquire stocks of strategic materials and Trading with the Enemy Act, because, although
supplies * * * use to the enemy, they will be the Philippines was not a territory or within the
diverted from our own war effort," and the jurisdiction or national domain of the United
national saf ety requires the prohibition of all States, it was then occupied by the military and
unlicensed communication, direct or indirect, naval forces thereof.
with enemy and enemy-occupied territories. To
the extent that this prohibition is effective, the 6.ID.; ID.; ID.; ID.; ID.; ID.; ID.; DIFFERENCE
residents of such territory are prevented from BETWEEN OBLIGATIONS OF UNITED
exercising the rights and responsibilities of STATES ARISING FROM APPLICATION OF
ownership over property located in the United TRADING WITH THE ENEMY ACT WITHIN
States. Meanwhile, decisions affecting the NATIONAL DOMAIN AND WITHIN
utilization of such property must be made and OCCUPIED HOSTILE TERRITORY.—The
carried out. Houses must be maintained and obligations assumed by the United States, in
rents collected; payments of principal and applying the Trading with the Enemy Act of the
interest on mortgages must be made for the United States to properties within her national
account of foreign debtors and foreign domain, is different and distinct from those
creditors; stranded stocks of material and arising from the application thereof to enemy
equipment must be sold; patents must be properties located within the hostile territory
licensed, business enterprises must be occupied by her armed forces. In the first case,
operated or liquidated, and foreign interest Congress is untramelled and free to authorize
must be represented in court actions. The the seizure, use, or appropriation of such
number of decisions to be made in connection properties without any compensation to the
with property is in fact multiplied by a state of owners, for although section 2 of the Trading
war, which requires that productive resources with the Enemy Act provides that "at the end of
be shifted from one use to another so as to the war any claim of any enemy or of an ally of
conform with the requirements of a war enemy to any money or other property received
economy." and held by the alien property custodian or
deposited in the United States Treasury shall
4.ID.; ID.; ID.; ID.; ID.; ID.; "ENEMY," be settled by Congress," the owners of the
MEANING OF; CASE AT BAR.—The properties seized within the national domain of
defendant-appellee, China Banking the United States are not entitled to demand its
Corporation, comes within the meaning of the release or compensation for its seizure, but
word "enemy" as used in the Trading with the what would ultimately come back to them,
Enemy Acts of civilized countries, because not might be secured, not as a matter of right, but
only it was controlled by Japan's enemies,, but as a matter either of grace to the vanquished or
it was, besides, incorporated under the laws of exacted by the victor, for the case is to be
a country with which Japan was at war. governed by the domestic laws of the United
States, and not by the Hague Regulations or
5.ID.; ID.; ID.; ID.; ID.; ID.; TRADING WITH International Law (U. S. vs. Chemical
THE ENEMY ACT OF UNITED STATES AND Foundation, Inc., 272 U. S., 1; United States
OTHER COUNTRIES APPLICABLE IN vs. S. S. White Dental Manufacturing
OCCUPIED HOSTILE TERRITORY.—The Company, 274 U. S. 402). While in the latter
Trading with the Enemy Act of the United case, when properties are sequestered in a
States, like that of the United Kingdom or Great hostile occupied territory by the armed forces
Britain, and those of other countries, may be of the United States, Congress can not legally
applied and enf orced in a hostile territory refuse to credit the compensation for them to
the States of the owners as payment on and successfully wage economic as well as
account of the sums payable by said States military war. That the liquidation or winding up
under treaties, and the owners have to look for of the business of the China Banking
compensation to their States, otherwise, they Corporation and other enemy banks did not
would violate article 46 of the Hague constitute a confiscation or appropriation of
Regulations or their pledge of good faith their properties or of the debts due them from
implied in the act of sequestrating or taking their debtors, but a mere sequestration of their
control of such properties. assets during the duration of the war for the
purposes already stated, is evidenced
7.ID.; ID.; ID.; ID.; ID.; ID.; ID.; JAPAN, RIGHT conclusively by the facts enumerated in the
OF, TO SEQUESTRATE AND LlQUIDATE opinion.
ENEMY BANKS; CASE AT BAR.—It is to be
presumed that Japan, in sequestrating and 9.ID.; ID.; ID.; ID.; ID.; ID.; ID.; OWNERS OF
liquidating the China Banking Corporation, PROPERTIES SEQUESTRATED, How
must have acted in accordance, either with her INDEMNIFIED.—The fact that Japanese
own Manual of the Army and Navy and Civil Military authorities failed to pay the enemy
Affairs, or with her Trading with the Enemy Act, banks the balance of the money collected by
and even if not, it being permitted to the Allied the Bank of Taiwan from the debtors of said
Nations, specially the United States and banks, did not and could not change the
England, to sequestrate, impound, and block sequestration or impounding by them of the
enemy properties found within their own bank's asset during the war, into an outright
domain or in enemy territories occupied during confiscation or appropriation thereof. Aside
the war by their armed forces, and it being not from the fact that it was physically impossible
contrary to the Hague Regulations or for the Japanese Military authorities to do so
international law, Japan had also the right to do because they were forcibly driven out of the
the same in the Philippines by virtue of the Philippines or annihilated by the forces of
international law principle that "what is liberation, following the readjustment of rights
permitted to one belligerent is also allowed to of private property on land seized by the
the other." enemy provided by the Treaty of Versailles and
other peace treaties entered into at the close of
8.ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; the first World War, the general principles
LIQUIDATION BY JAPANESE MILITARY underlying such arrangements are that the
ADMINISTRATION OF ENEMY BANKS NOT owners of properties seized, sequestrated or
A CONFISCATION; CASE AT BAR.—Taking impounded who are nationals of the victorious
into consideration the acts of the Japanese belligerent are entitled to receive compensation
Military Administration in treating the private for the loss or damage inflicted on their
properties of the so-called enemy banks, it property by the emergency war measures
appears evident that Japan did not intend to taken by the enemy, through their respective
confiscate or appropriate the assets of said States or Government who may officially
banks or the debts due them from their intervene and demand the payment of the
debtors, and thus violate article 46 or any other claim on behalf of their nationals (VI Hackworth
article of the Hague Regulations. It is true that, Digest of International Law, pp. 232, 233; II
as to private personal properties of the enemy, Oppenheim, sixth edition, p. 263). Naturally, as
freezing, blocking or impounding thereof is the Japanese war notes were issued as legal
sufficient for the purpose of preventing their tender for payment of all kinds at par with the
being used in aid of the enemy; but with regard Philippine peso, by the Imperial Japanese
to the funds of commercial banks like the so- Government, which in its proclamations of
called enemy banks, it was impossible or January 3, 1942, and February 1, 1942, "takes
impracticable to attain the purpose for which full responsibility for their usage having the
the freezing, blocking and impounding are correct amount to back them up" (see said
intended, without liquidating the said banks and Proclamations and their official explanation, O.
collecting the loans given by them to hundreds T., IMA Vol. 1, pp. 39, 40), Japan is bound to
if not thousands of persons scattered over the indemnify the aggrieved banks for the loss or
Islands. Without doing so, their assets or damage on their property, in terms of Philippine
money loaned to so many persons can not peso or U. S. dollars at the rate of one dollar
properly be impounded or blocked, in order to for two pesos.
prevent their being used in aid to the enemy
though the intervention of their very debtors,
10.OBLIGATIONS AND CONTRACTS; obligation. There is a well-recognized
PAYMENT; "PERSONS AUTHORIZED TO distinction between the expectation of the
RECEIVE"; LIQUIDATOR OF parties to a contract and the duty imposed by it.
CORPORATION; CASE AT BAR.—As the Aspdin vs. Austin, 5 Ad. & Bl. (N. S.) 671; Dunn
Japanese Military Forces had power to vs. Sayles, Ibid., 685; Coffin vs. Landis, 46 Pa.,
sequestrate and impound the assets or funds 426. Were it not so, the expectation of results
of the China Banking Corporation, and for that would be always equivalent to a binding
purpose to liquidate it by collecting the debts engagement that they should follow. But the
due to said bank from its debtors, and paying obligation of contract to pay money is to pay
its creditors, and therefore to appoint the Bank that which the law shall recognize as money
of Taiwan as liquidator with the consequent when the payment is to be made. If there is
authority to make the collection, it follows anything settled by decision it is this, and we
evidently that the payments by the debtors to do not understand it to be controverted." (Know
the Bank of Taiwan of their debts to the China vs. Exchange Bank of Virginia, 12 Wall., 457;
Banking Corporation have extinguished their 20 U. S. Supreme Court Reports, 20 Law. ed.,
obligation to the latter. Said payments were 287, 311.) In said case it was held that the
made to a person, the Bank of Taiwan, Legal Tender Acts of Congress which made
authorized to receive them in the name of the the treasury notes legal tender for payment of
bank creditor under article 1162, of the Civil debts contracted before and after their passage
Code. Because it is evident the words "a were not inappropriate for carrying into
person authorized to receive it," as used execution the legitimate purpose of the
therein, means not only a person authorized by Government, And this court, in Rogers vs.
the same creditor, but also a person authorized Smith Bell (10 Phil., 319), held that "A debt of
by law to do so, such as guardian, executor or 12,000 pesos created in 1876 can now (1908)
administrator of estate of a deceased, and be paid by 12,000 of the Philippine pesos
assignee or liquidator of a partnership or authorized by the Act of Congress of March 2,
corporation, as well as any other who may be 1903, although at the time the loan was made
authorized to do so by law (Manresa, Civil which created the debt, the creditor delivered
Code, 4th ed., p. 254). to the debtor 12,000 pesos in gold coin."
Whether or not respondent judge committed a [G.R. No. 97765. September 24, 1992.]
grave abuse in discretion in issuing the
temporary restraining order against the KHOSROW MINUCHER, Petitioner, v. THE
execution or enforcement of the search HONORABLE COURT OF APPEALS and
warrant. ARTHUR W. SCALZO, JR., Respondents.
ISSUE
o Bolivar Railway Company Claim The local authorities were handicapped by the
(Great Britain v. Venezuela), fact that the only eye witness of the murder
1903 Mrs. Neer failed to supply sufficient
information. For that reason the Mexican
2004Edition authority failed to arrest the murderer. The
activities of the Mexican authority did not
2005 Neer Claim (US v. Mexico), 1926 properly prove the lack of due diligence on their
part.
CASE NAME- Neer Claims
Starrett Housing Corp. v. Iran (Interlocutory
PARTIES- USA vs. Mexico YEAR- 1926
Award) (US v. Iran), 1983
PRINCIPLE
Citation. No. 32-A/18-FT, 5 Iran-U.S. Cl. Trib.
In this case, the court affirmed the doctrine of Rep. 251 (1984-1)
objective responsibility of the state. According
to this doctrine the responsibility for the acts
Brief Fact Summary. A suit was filed against
committed by its officials or its organs develop
Iran (D) in an arbitral tribunal in the Hague by
upon the state itself.
people with dual Iranian-U.S. citizenship (P)
FACT OF THE CASE under a claim Settlement Declaration, which
was part of the Algiers Accords reached in the
Paul Neer, an American citizen was aftermath of the 1979 Iranian seizure of U.S.
superintendent of a mine near Guanacvi, state diplomatic and consular personnel in Iran (D)
of Durango, Mexico. On November 10 1924, at as hostages. The jurisdiction of the tribunal
about 8 p.m. He and his wife were riding from was however challenged by Iran.
the village to their nearby home. In that way
they were stopped by a group of armed man. Synopsis of Rule of Law. If the dominant and
The American was killed. Mrs. Neer summoned effective nationality of the claimant is that of the
help, and the village authority went to the United States, then, the Claims Settlement
scene where it took place. On the following Declaration arbitral tribunal has jurisdiction
morning the local judge examined some over claims against Iran by dual Iran-United
witness including Mrs. Neer. Several days States nationals.
passed during within a number of suspects
Facts. After the 1975 Iranian revolution, Iranian
were arrested but released subsequently
militants seized U.S. diplomatic and consular
because of lack of evident. Mrs. Neer filed a
personnel in Iran (D) as hostages. In
claim of $1,00,000 for her and her daughters,
retaliation, the United States seized Iranian
charging that the Mexican authorities showed
assets in the United States, and people and
an utmost negligence in investigation of her
companies with claims against Iran (D) filed
husband‘s death. The claim was placed before
suit in U.S. courts, levying attachments against
him US-Mexican General Claims Commission.
blocked Iranian assets. A solution was
ISSUE mediated by Algiers in January 1981
culminating in the Algiers Accord, which was
How to determine the degree of lack of due adopted by both states. Included in the
diligence on the part of the Mexican provision of the Algiers’s Accords was a Claims
authorities? Because of lack of due diligence to Settlement Declaration, and created an arbitral
what extent it creates the ground of state tribunal in The Hague to hear claims by the
responsibility for Mexico? nationals of either state against the
government of the other state. Certain people
DECESION- with dual Iranian-U.S. citizenship (P) brought
Iran (D) before the tribunal and the jurisdiction
The administration decided that there had been of the tribunal was challenged by Iran (D).
no lack of due diligence to justify state
Issue. If the dominant and effective nationality ANGELO REYES in his capacity as
of the claimant is that of the United States, Secretary of National Defense, respondents.
then, can the Claims Settlement Declaration
arbitral tribunal have jurisdiction over claims ----------------------------------------
against Iran by dual Iran-United States
nationals? SANLAKAS and PARTIDO NG
MANGGAGAWA, petitioners-intervenors,
Held. If the dominant and effective nationality vs.
of the claimant is that of the United States, GLORIA MACAPAGA-ARROYO, ALBERTO
then, can the Claims Settlement Declaration ROMULO, ANGELO REYES, respondents.
arbitral tribunal have jurisdiction over claims
against Iran by dual Iran-United States Constitutional Law; Treatise; The Terms of
nationals? Reference rightly fall within the context of the
Visiting Forces Agreement (VFA).—The Terms
Discussion. The tribunal closed to new claims of Reference rightly fall within the context of the
by private individuals in 1982. It received VFA. After studied reflection, it appeared
approximately 4,700 private U.S. claims, farfetched that the ambiguity surrounding the
ordered payment by Iran (D) to U.S. nationals meaning of the word “activities” arose from
amounting to over $2.5 billion. accident. In our view, it was deliberately made
that way to give both parties a certain leeway in
5. Vienna Convention on the Law of Treaties negotiation. In this manner, visiting US forces
may sojourn in Philippine territory for purposes
Cases: other than military. As conceived, the joint
exercises may include training on new
Definition of "treaty" techniques of patrol and surveillance to protect
the nation’s marine resources, sea search-and-
Abaya v. Sec. Ebdane, G.R. No.
rescue operations to assist vessels in distress,
167919, 14 February 2007
disaster relief operations, civic action projects
DBM v. Kolonwel Trading such as the building of school houses, medical
(consolidated cases), G.R. No. and humanitarian missions, and the like.
175608, 8 June 2007
Same; Same; Same; The VFA gives legitimacy
Suplico v. NEDA, G.R. No. 178830, to the current Balikatan exercises.—Under
14 July 2008 these auspices, the VFA gives legitimacy to the
current Balikatan exercises. It is only logical to
CNMEG v. Hon. Santa Maria, G.R. assume that “Balikatan 02-1,” a “mutual anti-
No. 185572, 7 February 2012 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
Definition of "ratification" the Mutual Defense Treaty and the VFA
support the conclusion that combat-related
Commissioner of Customs v. activities—as opposed to combat itself—such
Eastern Sea Trading, G.R. No. L- as the one subject of the instant petition, are
14279, October 31, 1961 indeed authorized.
Bayan v. Zamora, G.R. No. 138570, Same; Same; Same; A party to a treaty is not
October 10, 2000 allowed to “invoke the provisions of its internal
law as justification for its failure to perform a
treaty.”—From the perspective of public
G.R. No. 151445 April 11, 2002 international law, a treaty is favored over
municipal law pursuant to the principle of pacta
ARTHUR D. LIM and PAULINO R. sunt servanda. Hence, “[e]very treaty in force is
ERSANDO, petitioners, binding upon the parties to it and must be
vs. performed by them in good faith.” Further, a
HONORABLE EXECUTIVE SECRETARY as party to a treaty is not allowed to “invoke the
alter ego of HER EXCELLENCEY GLORIA provisions of its internal law as justification for
MACAPAGAL-ARROYO, and HONORABLE its failure to perform a treaty.”
Remedial Law; Certiorari; The present subject bandits, mainly engaged in kidnapping for
matter is not a fit topic for a special civil action ransom and murder—even arson, extortion and
for certiorari.—It is all too apparent that the illegal possession of firearms, all of which are
determination thereof involves basically a common offenses under our criminal laws.
question of fact. On this point, we must concur These activities involve purely police matters
with the Solicitor General that the present and domestic law and order problems; they are
subject matter is not a fit topic for a special civil hardly “external” attacks within the
action for certiorari. We have held in too many contemplation of the MDT and the VFA.
instances that questions of fact are not
entertained in such a remedy. The sole object PANGANIBAN, J., Separate Opinion:
of the writ is to correct errors of jurisdiction or
grave abuse of discretion. The phrase “grave Remedial Law; Actions; As a rule, courts may
abuse of discretion” has a precise meaning in not consider or judge facts or matters unless
law, denoting abuse of discretion “too patent they are alleged in the pleadings and proven by
and gross as to amount to an evasion of a the parties.—I stress that cases cannot be
positive duty, or a virtual refusal to perform the decided by this Court on the basis of
duty enjoined or act in contemplation of law, or speculative or hypothetical assumptions like “If
where the power is exercised in an arbitrary the facts were these, then our decision would
and despotic manner by reason of passion and be this; on the other hand, if the facts change,
personal hostility.” then our ruling would be modified as follows.”
Decisions of this Court especially in certiorari
Constitutional Law; Treatise; There is no treaty and prohibition cases are issued only if the
allowing foreign military troops to engage in facts are clear and definite. As a rule, courts
combat with internal elements.—The may not consider or judge facts or matters
Constitution prohibits foreign military bases, unless they are alleged in the pleadings and
troops or facilities unless a treaty permits the proven by the parties. Our duty is to apply the
same. There is no treaty allowing foreign law to facts that are not in dispute. Lim vs.
military troops to engage in combat with Executive Secretary, 380 SCRA 739, G.R. No.
internal elements. 151445 April 11, 2002
Synopsis of Rule of Law. A reservation to the In 1979, U.S. Supported samoza Government
U.N. Convention on Genocide may be effected in Nicaragua which was overthrown by
Sandanista revolutionaries. In 1981 U.S.A. REASONING
terminated its economic aid to Nicaragua on
the ground that it had aided guerrillas fighting In the decision the court considered the
against the U.S. supported EI Salvador following reasons:
Government. On April 9, 1984 Nicaragua filed
a case against the U.S.A in the international According to the Art. 387 of the Statue of the
Court of Justice charging U.S.A for illegal International Court of Justice, the court is
intervention in the internal affairs. Nicaragua entitled to apply custom,‖ where there is an
claimed that the U.S.A had, which was contrary evidence of general practice of practice of that
to the customary International law, used direct custom.‖ The general practice of the custom is
armed forces against it by laying mines in accepted by law. Form the fact of the case it
Nicaraguan internal and territorial water appears that there is a custom regarding the
causing damage to Nicaraguan ports, oil non use of force and non intervention. As it is a
installations and naval base. Moreover, and generally practiced custom it is accepted by
given assistance to the contra rebels. law. So the court has full power and jurisdiction
Nicaragua further claimed that the U.S.A acted to entertain the issues.
in breach of the 1956 U.S.A. Nicaraguan
There is no rule in customary International
Treaty of Friend hip, commerce and
law permitting another state to use the right of
Navigation.
collective self defense until it is invoked. It is
ISSUE expected that the state for whose benefit this
right is used will have declared itself to be
The main issues of the case were as follows: victim of a armed attack and as it was there
won internal factor, the U.S.A had no
Whether the International Court of Justice jurisdiction to exercise their power in the
had the jurisdiction to entertain such dispute. internal matter of Nicaragua. By laying mines
in the internal or territorial waters or Nicaragua,
Whether there is any rule in customary U.S.A was in breach of its obligations under
International Law permitting another State to customary international law not to use force
exercise the right to collective self-defense on against another state, not to interrupt in
the basis of its own assessment of the maritime commerce.
situation;
6. Vienna Convention on Diplomatic Relations;
Where U.S.A had infringed the customary Vienna Convention on Consular Relations and
International Law regarding the use of force Optional Protocols
and intervention
Cases:
Whether Nicaragua is entitled to any
compensation. US Diplomatic & Consular Staff (US v. Iran),
ICJ Reports, 1980
DECESION
CASE NAME - Iran Case
In this case the U.S.A did not appear and on
May 10,1984 in its interim measure th court PARTIES- U.S.A Vs Iran
held that U.S.A should immediately cease and
refrain from any action restricting, blocking, or YEAR- 1980
endangering access to or from Nicaragua ports
and in Particular the laying of mines. The court PRINCIPLE
further held that it had jurisdiction to entertain
To entire into mission area without permission
the application filed by Nicaragua. He court
or protect to destroy in mission area and not to
further said that there is no justification on the
violation in peace of mission or take necessary
part of U.S.A to apply collective self defense in steps because of not to reduce the dignity of
connection with the military and Para- military mission which is a special duty of a state.
activities in and against neither Nicaragua nor
her is any such international customary rule to FACT OF THE CASE
do that. Therefore, Nicaragua is entitled o get
compensation. But the court did not fix the The United States Embassy at teharan in Iran
amount of compensation. overruled a military group and hundreds of
several students. They are not permitted by the
president of Iran Al Khowameni. They international law. The US was saying that
controlled over the documents and arcades to Nicaragua was attacking El Salvador, Costa
entire into the diplomatic mission area and Rica and Honduras and that the US was
captured by the officials. By Iran authority was merely acting to defend the said countries.
not protest them.
Issue:
ISSUE
W/n the acts of the US are contrary to
Whether the Iranian Government was bound customary international law.
to provide force to secure U.S.A Embassy and
its personals? Whether Iran Government was Held:
bound to provide compensation or not?
The Court said that the acts were contrary to
Whether Iran Government breached any
customary international law. o First, the attacks
International Law or not?
on Nicaragua were against the principle of the
DECESION non-use of force in international relations.
Obviously, by attacking Nicaragua and placing
International courts of Justice held that though mines in its ports, the US employed force
Iran government was bound to protect the against Nicaragua. The US argues that all
diplomatic mission. So that Iran Government these acts were in self-defense. The Court
was not do this they are bound to pay does not agree with the US. It held that there
compensative. was no actual armed attack on the countries
allegedly being protected by the US to warrant
REASONING the attack on Nicaragua. What Nicaragua was
guilty of was the sending of arms to the
Violation of official correspondents. opposition in El Salvador, Costa Rica and
Violation of achieves and documents. Honduras. The court held that based on
Violation of Vienna Convention 1961 22(1) and customary international law, these acts are not
22(2) considered as armed attacks to justify the
attacks made by the US as being in self-
o Case Concerning Avena and defense. o The court found that the acts of the
other Mexican Nationals (Mexico US also violated the principle of non-
v. USA), 31 March 2004. interference which respects the sovereignty of
a state over its territory. By supporting the
B. International Organizations
contra forces in Nicaragua, the US was
1. The UN Charter & The Use of Force impliedly coercing the government of
Nicaragua to do acts in the manner preferable
Arts. 2(3), 2(4), 24(1), 25, 23(1), 27(3), to the US. In short, the US was implicitly
UN Charter interfering in the governance of Nicaragua
through the use of force. o The Court also finds
Higgins, Chapters 10, 14 & 15 that the placing of mines by the US in the ports
of Nicaragua was a violation of the freedom of
Cases: navigation and commerce guaranteed by
Article XIX of the Treaty of Friendship,
Military & Paramilitary Activities in and Commerce and Navigation of 1956. The Court
against Nicaragua (Nicaragua v. US), supra therefore finds that the United States is prima
facie in breach of an obligation not to deprive
Facts:
the 1956 Treaty of its object and purpose
Nicaragua is assailing certain acts of the US as (pacta sunt servanda), and has committed acts
being contrary to customary international law, in contradiction with the terms of the Treaty. o
to wit: o Placing of mines in the ports of In the end, the Court held that the US is under
Nicaragua; o Supporting a military group called an obligation to make reparation to the
the contra forces which has committed Republic of Nicaragua for all injury caused to
violations of human rights of some Nicaragua by the breaches of obligations under
Nicaraguans; and o Attacking certain places in customary international law enumerated above
Nicaragua; - The US argues that it was merely and by the breaches of the Treaty of
doing so in self-defense. It pointed out that Friendship, Commerce and Navigation.
such use of force in self- defense is allowed by
Legality of the Use by a State of Nuclear the behavior in question conforms to those
Weapons in Armed Conflict (Advisory obligations. The political nature of the motives
Opinion), ICJ Reports, 8 July 1996 which may have inspired the request and the
political implications that the opinion given
Facts: might have are irrelevant in the establishment
of jurisdiction. -With regard to the third
The World Health Organization(WHO), sent to requisite, the Rules and the Constitution of the
the Registrar of the International Court of organization must be referred to in order to
Justice(ICJ) a decision of the World Health determine its field of activity or area of
Assembly (WHA) to submit a question to the competence. -The ICJ finds that the activities
Court for an advisory opinion. -The request for of WHO relate only to the ‘effects of the use of
advisory opinion states, in summary, that: -In nuclear weapons on health,’ but not to the
view of the report of the Director-General and ‘legality of the use of such weapons in view of
the resolutions of the WHA on the health and their health and environmental effects.’ -None
environmental effects of nuclear weapons; and of the function of WHO has a sufficient
-Recalling that primary prevention is the only connection with the question of legality of the
appropriate means to deal with the health and use of nuclear weapons. Whether nuclear
environmental effects of the use of nuclear weapons are used legally or illegally, their
weapons; -The WHA decides to request the effects on health would be the same. -It must
International Court of Justice to give an be noted that WHO is a “specialized agency”
advisory opinion on the following question: In under the UN . Being a specialized agency, it is
view of the health and environmental effects, empowered only to take such action for the
would the use of nuclear weapons by a State in accomplishment of its specific objectives,
war or other armed conflict be a breach of its which necessarily deal with public health. It
obligation under international law including the cannot encroach on the responsibilities of other
WHO Constitution? -While the ICJ has the parts of the United Nations System. -There is
power to give advisory opinions, three no doubt that questions concerning the use of
conditions must be satisfied in order to found force, the regulation or armaments and
the jurisdiction of the Court when a request for disarmament are within the competence of the
an advisory opinion is submitted to it by a United Nations and lie outside that of the
specialized agency: 1. the agency requesting specialized agencies. -The request for an
the opinion must be duly authorized, under the advisory opinion submitted by the WHO does
Charter, to request opinions from the Court; 2. not related to a question which arises “within
The opinion requested must be on a legal the scope of the activities” of WHO.
question; 3. This question must be one arising
within the scope of the activities of the Side issues:
requesting agency.
Issue:
Issue:
W/N the resolution of WHA requesting for an
W/N the Court has the jurisdiction to give the advisory opinion, having been adopted by the
advisory opinion requested by WHO. requisite majority, must be presumed to have
been validly adopted.
Held:
Held:
NO, because the third requisite was not met -
There is no question of compliance with regard The mere fact that a majority of States, in
to the first two requisites since, as regards the voting a resolution, have complied with the
first one, WHO’s Constitution and the rules of form, cannot suffice to remedy the
Agreement between WHO’s agreement with fundamental defect of such resolution, it being
the United Nations states that the General ultra vires.
Assembly of the United Nations authorizes the
WHO to request advisory opinions of the ICJ Issue: W/N the opinion of the General
on legal questions arising within the scope of Assembly of UN welcoming the resolution of
its competence. -As to the second requisite, WHO to request an advisory opinion grants
the issue posed is indeed a legal question, WHO the competence to do so.
since its resolution would require the ICJ to
interpret the rules of law invoked regarding the Held: NO. The General Assembly only meant
obligations of the States, and assess whether to lend its political support to the action taken
by WHO, not to pass upon WHO’s competence Nicaraguans; and o Attacking certain places in
to request an opinion on the question raised Nicaragua; - The US argues that it was merely
doing so in self-defense. It pointed out that
o Legality of the Use of Force such use of force in self- defense is allowed by
(Yugoslavia v. US), US 38 ILM international law. The US was saying that
1199 Nicaragua was attacking El Salvador, Costa
Rica and Honduras and that the US was
o The Relationship between the UN merely acting to defend the said countries.
Charter and General International
Law Regarding Non-use of Force: Issue:
The Case of NATO's air
campaign in the Kosovo crisis of W/n the acts of the US are contrary to
1999, Shinya Murase customary international law.
o M.W. Reisman, "Assessing The Court said that the acts were contrary to
Claims to Revise the loss of customary international law. o First, the attacks
War," 97 AJIL 82 at 87, 2003 on Nicaragua were against the principle of the
non-use of force in international relations.
o Case Concerning Oil Platforms Obviously, by attacking Nicaragua and placing
(Islamic Republic of Iran v. United mines in its ports, the US employed force
States of America), December against Nicaragua. The US argues that all
12,1996 these acts were in self-defense. The Court
does not agree with the US. It held that there
o Armed Activities on the Territory was no actual armed attack on the countries
of Congo (Democratic Republic of allegedly being protected by the US to warrant
the Congo v. Uganda), ICJ (2005) the attack on Nicaragua. What Nicaragua was
guilty of was the sending of arms to the
o Re: Certain Expenses of the UN,
opposition in El Salvador, Costa Rica and
supra
Honduras. The court held that based on
2. International Court of Justice customary international law, these acts are not
considered as armed attacks to justify the
Arts. 92, 93, 94, 96, UN Charter attacks made by the US as being in self-
defense. o The court found that the acts of the
Arts. 1, 34(1), 35(1), ICJ Statute US also violated the principle of non-
interference which respects the sovereignty of
a. Applicable Law a state over its territory. By supporting the
contra forces in Nicaragua, the US was
Arts. 38 & 59, ICJ Statute impliedly coercing the government of
Nicaragua to do acts in the manner preferable
b. Jurisdiction
to the US. In short, the US was implicitly
Art. 36(1), (2) & (3), ICJ Statute interfering in the governance of Nicaragua
through the use of force. o The Court also finds
c. Advisory Opinions that the placing of mines by the US in the ports
of Nicaragua was a violation of the freedom of
Cases on Jurisdiction: navigation and commerce guaranteed by
Article XIX of the Treaty of Friendship,
Military & Paramilitary Activities in and Commerce and Navigation of 1956. The Court
against Nicaragua (Nicaragua v. US), supra therefore finds that the United States is prima
facie in breach of an obligation not to deprive
Facts:
the 1956 Treaty of its object and purpose
Nicaragua is assailing certain acts of the US as (pacta sunt servanda), and has committed acts
being contrary to customary international law, in contradiction with the terms of the Treaty. o
to wit: o Placing of mines in the ports of In the end, the Court held that the US is under
Nicaragua; o Supporting a military group called an obligation to make reparation to the
the contra forces which has committed Republic of Nicaragua for all injury caused to
violations of human rights of some Nicaragua by the breaches of obligations under
customary international law enumerated above Indonesia because of its lack of consent to the
and by the breaches of the Treaty of court’s jurisdiction;
Friendship, Commerce and Navigation.
c) while it is true that the right of peoples to
Lockerbie Case (Libyan Arab self-determination, as it evolved from the
Jamahiriya v. USA) ICJ Reports, Charter and from United Nations practice, has
1988 an erga omnes character, the Court
nonetheless considers that the erga omnes
ELSI Case, ICJ Reports, 1989 character of a norm and the rule of consent to
jurisdiction are two different things. Whatever
South West Africa Cases, ICJ the nature of the obligations invoked, the Court
Reports, 1966 could not rule on the lawfulness of the conduct
of a State when its judgment would imply an
Nauru v. Australia, ICJ Reports, evaluation of the lawfulness of the conduct of
1992 another State which is not a party to the case;
Case Concerning East Timor (Portugal v. d) if the court were to exercise jurisdiction over
Australia) ICJ Reports, 1995 the case and render judgment thereon
notwithstanding the lack of Indonesia’s
consent, such a judgment would run directly
The main ruling of the Court (the majority counter to the "well-established principle of
opinion) is that it cannot exercise jurisdiction international law embodied in the Court's
over the case notwithstanding the fact that it Statute, namely, that the Court can only
has been conferred jurisdiction through the exercise jurisdiction over a State with its
declarations made by the parties (i.e., Portugal consent" (Monetary Gold Removed from Rome
and Australia) under Article 36, paragraph 2, of in 1943, I.C.J. Reports 1954, p. 32).
its Statute.
Re the separate opinion of Judge Oda:
Reasons for the ruling:
Judge Oda, while agreeing that Portugal's
a) the Court cannot exercise jurisdiction over Application should be dismissed as the Court
the case because Indonesia is not a party lacks jurisdiction to entertain it, considers that
thereto. The court held that in order to rule on its dismissal should not have been based upon
the proceedings instituted by Portugal against the absence of Indonesia's consent, as in the
Australia concerning "certain activities of Court's Judgment, but upon the sole
Australia with respect to East Timor", it would consideration that Portugal lacked locus standi.
be necessary for the court to determine the His reasoning appears to be based on his view
rights and obligations of Indonesia. Specifically, that the central issue in the case is whether
the court held that the very subject-matter of its Portugal or Indonesia, as a State lying opposite
decision would necessarily be a determination to Australia, was entitled to the continental
whether, having regard to the circumstances in shelf in the "Timor Gap"(maybe, this is what is
which Indonesia entered and remained in East referred to in the Treaty of 11 December 1989
Timor, it could or could not have acquired the between Australia and Indonesia as an area
power to enter into treaties on behalf of East between the Indonesian Province of East Timor
Timor relating to the resources of its and Northern Australia). . He notes that on the
continental shelf. The Court could not make matter of the delimitation of the continental
such a determination in the absence of the shelf in the relevant areas, it appears that since
consent of Indonesia; the seventies, Indonesia claimed the status of
a coastal State for East Timor and, as such,
b) regarding the contention that Portugal and negotiated with Australia while, on the other
Australia have accepted the compulsory hand, Portugal did not. Had Portugal also
jurisdiction of the Court under Article 36, claimed that status, it could and should have
paragraph 2, of its Statute, the court noted that initiated a dispute over the corresponding title
Indonesia did not do so. This, in effect, to the continental shelf with Indonesia, but not
precludes the court from exercising jurisdiction with Australia. Not unless and until such time
since were it to rule on the case, its decision as Portugal had been established as having
would affect, but would not be binding on, the status of the coastal State entitled to the
corresponding continental shelf could any issue
concerning the seabed area of the "Timor Gap" Such assessment is not linked to any passing
have been the subject matter of a dispute upon Indonesia's activities. Further, it is his
between Portugal and Australia Since Portugal view that Portugal has the capacity to act
does not have such status as yet, it has no before the Court in this case on behalf of East
locus standi and hence, its complaint should be Timor and to vindicate the respect for its
dismissed on such ground. position as administering Power. The position
of Portugal as administering Power was
Re the dissenting opinion of Judge questioned by Australia; the Court should have
Weeramantry: Judge Weeramantry disagrees clarified this issue. It is within its jurisdiction.
with the majority view on the question as to
whether or not the Court lacks jurisdiction on Cases on Provisional Measures:
the ground that a decision against Australia
would involve a decision concerning the rights Bosnia Case (Application of the Convention
of Indonesia, a third State, not before the on the Prevention and Punishment of the
Court. Judge Weeramantry, after analyzing the Crime of Genocide (Bosnia and
Monetary Gold decision and the prior and Herzegovina v. Serbia and Montenegro),
subsequent jurisprudence on the matter, supra
concludes that, having regard to the facts of
this case, the Monetary Gold decision is not Brief Fact Summary. Following the genocide
relevant inasmuch as the Court could of Bosnia Muslims, a suit was brought against
determine the matter before it entirely on the Serbia and Montenegro (D) by Bosnia and
basis of the obligations and actions of Australia Herzegovina (P).
alone, without any need to make an
Synopsis of Rule of Law. The obligation
adjudication on the conduct of Indonesia. He
under the Genocide Convention binds the
bases this on the view that a central principle of
contracting parties to the Convention not to
State responsibility in international law is the
commit, through their organs or persons or
individual responsibility of a State for its
groups whose conduct is attributable to them,
actions, quite apart from the complicity of
genocide and the other acts enumerated in
another State in those actions. Accordingly, he
Article II.
believes that Australia’s actions, in negotiating,
concluding and initiating performance of the Facts. A suit was brought against the Federal
Timor Gap Treaty, and taking internal Republic of Yugoslavia (Serbia and
legislative measures for its application, are thus Montenegro) (D) under the Genocide
justiciable on the basis of its unilateral conduct. Convention by Bosnia and Herzegovina (P).
The plaintiffs alleged that Serbia (D)
Re the dissenting opinion of Judge
contravened the Convention by committing
Skubiszewski:
genocide against Bosnia’s (P) Muslim
In his view, the court has jurisdiction because population. The International Court of Justice in
even it finds itself without jurisdiction to this first part of the case threw more light on
adjudicate on any issue relating to the Timor the provisions of the Genocide Convention,
Gap Treaty, it can still rule on Portugal’s first including the undertaking to “prevent and
submission, i.e., with the status of East Timor, punish” genocide in Article I, the definition of
the applicability to that territory of the principle genocide in Article II, and the phase
of self-determination and some other basic “responsibility of a State for genocide” in Article
principles of international law, and the position IX. (See Chapter 8, pages 54-55 for additional
of Portugal as administering Power. This is so facts in this case).
because the first submission can be separated
Issue. Are the obligation under the Genocide
from the other submissions which concern
Convention binding on the contracting parties
exclusively the specific issues of the treaty.
and do they prevent the parties from
Judge Skubiszewski believes that the Court
committing, through their organs or persons or
can decide on the lawfulness of some unilateral
groups whose conducts are attributable to
acts of Australia leading to the conclusion of
them, genocide and other acts enumerated in
the Treaty. A decision thereon does not imply
Article II?
any adjudication on Indonesia, nor does it
involve any finding on the validity of the Treaty. Held. Yes. The obligation under the Genocide
The conduct of Australia can be assessed in Convention binds the contracting parties to the
the light of United Nations law and resolutions. Convention not to commit, through their organs
or persons or group whose conduct is Lockerbie Case (Libyan Arab
attributable to them, genocide and other acts Jamahiriya v. USA), supra
enumerated in Article II.
The obligation imposed on the parties is Cases on Dispute:
dependent on the ordinary meaning of the
terms of the Convention, read in context and in Admissions Case (Conditions
light of the Convention’s object and purpose. of Admission of a state to
Resorting to supplementary means of membership in the United
interpretation, including the Convention’s Nations), ICJ Reports, May
preparatory work and the circumstances of its 28,1948
conclusion are the means of resolving the
Free Zones Case (Case of the
confusions associated to terms, context and
Free Zones of Upper Savoy and
purpose.
the District of Gex), PCIJ Ser.
A/B. No. 45, June 7, 1932
The parties under the Convention are under an
obligation not to commit genocide Mavrommatis Case, supra
themselves. This obligation is not imposed
UN Headquarters Advisory
expressly by the Convention but the effect of
Opinion (Applicability of the
Article II is to prohibit states from committing
Obligation to Arbitrate under
genocide themselves. The logic behind the
Sec. 21 of the UN Headquarters
Convention is that the prohibition follows from
Agreement of June 26, 1947), ICJ
the fact that the Article categorizes genocide as
Reports, April 26, 1988
an international law crime and by agreeing to
such a categorization, the parties must logically Cases on Advisory Opinions:
undertake not to commit the act described. It
also follows from the expressly stated Legality of the Use by a State of Nuclear
obligation to prevent the commission of acts of Weapons in Armed Conflict (Advisory
genocide. Opinion), ICJ Reports, 8 July 1996
Facts:
Serbia (D) further postulated that the drafting
history of the Convention shows that the states The World Health Organization(WHO), sent to
are not directly responsible under the the Registrar of the International Court of
Convention for acts of genocide, but heat Justice(ICJ) a decision of the World Health
states have civil responsibility to prevent and Assembly (WHA) to submit a question to the
punish genocide committed by individuals. The Court for an advisory opinion. -The request for
drafting history also throws more light on the advisory opinion states, in summary, that: -In
fact the Chairman of the Sixth Committee view of the report of the Director-General and
believed that Article IX as modified provided for the resolutions of the WHA on the health and
state responsibility for genocide. environmental effects of nuclear weapons; and
-Recalling that primary prevention is the only
Discussion. Serbia’s (D) violations of its appropriate means to deal with the health and
obligation stems not only from the Genocide environmental effects of the use of nuclear
Convention, but also from two protective weapons; -The WHA decides to request the
measures issued by the I.C.J. in April and International Court of Justice to give an
September 1993, under which the former advisory opinion on the following question: In
Federal Republic of Yugoslavia was ordered view of the health and environmental effects,
explicitly to prevent the crimes of genocide and would the use of nuclear weapons by a State in
to make sure that such crimes were not war or other armed conflict be a breach of its
committed by military or paramilitary formations obligation under international law including the
operating under its control or with its support. WHO Constitution? -While the ICJ has the
Serbia (D) did not make any effort to prevent power to give advisory opinions, three
the July 1995 Srebrenica massacre despite the conditions must be satisfied in order to found
order, although according to the I.C.J, it should the jurisdiction of the Court when a request for
have “been aware of the serious danger that an advisory opinion is submitted to it by a
acts of genocide would be committed”. specialized agency: 1. the agency requesting
the opinion must be duly authorized, under the
Charter, to request opinions from the Court; 2. advisory opinion submitted by the WHO does
The opinion requested must be on a legal not related to a question which arises “within
question; 3. This question must be one arising the scope of the activities” of WHO.
within the scope of the activities of the
requesting agency. Side issues:
Issue: Issue:
W/N the Court has the jurisdiction to give the W/N the resolution of WHA requesting for an
advisory opinion requested by WHO. advisory opinion, having been adopted by the
requisite majority, must be presumed to have
Held: been validly adopted.
b. Tokyo War Crimes Tribunal (Report) W/N the Court has the jurisdiction to give the
advisory opinion requested by WHO.
c. 1949 Geneva Conventions
Held:
d. 1978 Additional Protocol to the Geneva
Convention NO, because the third requisite was not met -
There is no question of compliance with regard
e. Security Council Resolution No. 827 to the first two requisites since, as regards the
(Yugoslavia War Crimes Tribunal) first one, WHO’s Constitution and the
Agreement between WHO’s agreement with
f. Security Council Resolution No. 955
the United Nations states that the General
(Rwanda War Crimes Tribunal)
Assembly of the United Nations authorizes the
g. 1998 Rome Convention on the International WHO to request advisory opinions of the ICJ
Criminal Court on legal questions arising within the scope of
its competence. -As to the second requisite,
Cases: the issue posed is indeed a legal question,
since its resolution would require the ICJ to
interpret the rules of law invoked regarding the
obligations of the States, and assess whether
the behavior in question conforms to those by WHO, not to pass upon WHO’s competence
obligations. The political nature of the motives to request an opinion on the question raised
which may have inspired the request and the
political implications that the opinion given Yugoslavia War Crimes Tribunal Decision
might have are irrelevant in the establishment on Tadic, 15 July 1999
of jurisdiction. -With regard to the third
requisite, the Rules and the Constitution of the Citation. App. Chamber, Int’l Crim. Trib. For
organization must be referred to in order to former Yugoslavia, 1992 Case No. IT-94-1-
determine its field of activity or area of AR72, 35 I.L.M. 32 (1996)
competence. -The ICJ finds that the activities
of WHO relate only to the ‘effects of the use of
Brief Fact Summary. The claim Tadic (D)
nuclear weapons on health,’ but not to the
brought before the Court was that the Security
‘legality of the use of such weapons in view of
Council did not have the authority to establish
their health and environmental effects.’ -None
an international criminal tribunal.
of the function of WHO has a sufficient
connection with the question of legality of the Synopsis of Rule of Law. The Security
use of nuclear weapons. Whether nuclear Council enjoys a wide margin of discretion in
weapons are used legally or illegally, their choosing the course of action once it
effects on health would be the same. -It must determines that a particular situation poses a
be noted that WHO is a “specialized agency” threat to peace.
under the UN . Being a specialized agency, it is
empowered only to take such action for the Facts. According to the Charter of the United
accomplishment of its specific objectives, Nations, the Security Council shall determine
which necessarily deal with public health. It the existence of any threat to the peace and
cannot encroach on the responsibilities of other decide what measures shall be taken to restore
parts of the United Nations System. -There is international peace and security. Tadic (D)
no doubt that questions concerning the use of claimed the Security Council did not have the
force, the regulation or armaments and power to establish an International Criminal
disarmament are within the competence of the Tribunal to deal with armed conflict in the
United Nations and lie outside that of the former Yugoslavia.
specialized agencies. -The request for an
advisory opinion submitted by the WHO does Issue. Does the Security Council enjoy a wide
not related to a question which arises “within margin of discretion in choosing the course of
the scope of the activities” of WHO. action once it determines that a particular
situation poses a threat to the peace?
Side issues:
Held. Yes. The Security Council enjoys a wide
Issue: margin of discretion in choosing the course of
action once it determines that a particular
W/N the resolution of WHA requesting for an situation poses a threat to peace. The Security
advisory opinion, having been adopted by the Council may exercise its exceptional powers
requisite majority, must be presumed to have under Chapter VI or Chapter VII of the U.N.
been validly adopted. Charter where internal armed conflicts are
determined to pose a threat to peace. These
Held:
powers are mandatory and coercive. Although
The mere fact that a majority of States, in the establishment of an international tribunal is
voting a resolution, have complied with the not explicitly mandated, the measures
rules of form, cannot suffice to remedy the described in the Charter are merely illustrative
fundamental defect of such resolution, it being and not exhaustive.
ultra vires.
Discussion. Originally, Tadic (D) contested the
Issue: W/N the opinion of the General Security Council’s power to determine whether
Assembly of UN welcoming the resolution of the situation in the former Yugoslavia
WHO to request an advisory opinion grants constituted a threat to the peace, but he no
WHO the competence to do so. longer held this view at this stage. Here, he
was challenging the legality and
Held: NO. The General Assembly only meant appropriateness of the measures taken by the
to lend its political support to the action taken Security Council.
Dizon v. Commanding General Convention be enforced in federal court
through habeas corpus petitions?
Rasul v. Bush
Held. No. The congress or the inherent powers
Hamdan v. Rumsfeld, 548 U.S. 557 (2006) of the President did not authorize the military
commission established to try those deemed
Brief Fact Summary. After Hamdan (P) was “enemy combatants” for alleged war crimes in
captured in Afghanistan, a U.S. military the War on Terror. Absent that express
commission began proceedings against him. authorization, the commission had to comply
The authority of the commission was with the ordinary laws of the United States (D)
challenged by Hamdan (P). and the laws of war.
Synopsis of Rule of Law. The congress or the (2). Yes. The rights protected by the Geneva
inherent powers of the President did not Convention may be enforced in federal court
authorize the military commission established through habeas corpus petitions. As part of the
to try those deemed “enemy combatants” for ordinary laws of war, the Geneva Convention
alleged war crimes in the War on Terror. could be enforced by the U.S. Supreme Court
(2) The rights protected by the Geneva along with the statutory Uniform Code of
Convention may be enforced in federal court Military Justice (UCM) since the military
through habeas corpus petitions. commission was not authorized. The exclusion
of Hamdan (P) from certain parts of his trials
deemed classified by the military commission
Facts. Afghan forces captured Salim Ahmed violated both of these and the trial was
Hamdan (P) and the U.S. military imprisoned therefore illegal. Common Article 3 which
him at Guantanamo Bay. He challenged his provides minimal protection to individuals
imprisonment by filing a petition for a writ of associated with neither a signatory nor a non-
habeas corpus in the federal district court but signatory “Power” who are involved in a conflict
before the court could rule on the petition, a in the territory of a signatory is applicable here
U.S. military commission began proceeding and requires that Hamdan (P) be tried by a
and named Hamdan (P) an enemy combatant. “regularly constituted court affording all the
Hamdan (P) challenged the authority of the judicial guarantees which are recognized as
commission on the ground that the commission indispensable by civilized peoples.
trial would violate his rights under Article 102 of
Discussion. Many U.S. and international
the Geneva Convention, which provides that a
human rights organizations have determined
“prisoner of war can be validly sentenced only
that violations might occur through the non-
if the sentence has been pronounced by the
application of the Geneva Convention to
same courts according to the same procedure
detainees in the U.S. war on terrorism.
as in the case of members of the armed forces
of the Detaining Power”. Boumedienne v. Bush, 12 June 2008
Hamdan’s habeas petition was granted by the
district court’s, ruling that a hearing to 3. Foreign Investments & Natural Resources
determine whether he was a prisoner of war
under the Geneva convention must be taken Cases:
place before he could be tried by a military
commission. This decision was reversed by the Texaco v. Libya, 17 ILM or 53 ILR 389, 1978
D.C. Circuit Courts of Appeal on the premise Citation. Int’l Arbitral Award, 104 J. Droit Int’l
that the Geneva Convention could not be 350 (1977), translated in 17 I.L.M. 1 (1978)
enforced in federal court and that the
establishment of military tribunals had been Brief Fact Summary. A decree which
authorized by Congress and was therefore not attempted to nationalize all of Texaco’s (P)
unconstitutional. rights, interest and property in Libya was
promulgated by Libya (D).
Issue. Did the congress or the inherent powers
of the President authorize the military Synopsis of Rule of Law. Whenever
commission established to try enemy reference is been made to general principles of
combatants for alleged war crimes in the War law in the international arbitration context, it is
on Terror? always held to be a sufficient criterion for the
(2). May the rights protected by the Geneva internationalization of a contract.
PRINCIPLE
Facts. A decree to nationalize all Texaco’s (P)
rights, interest and property in Libya was It is a general principle of international law that
promulgated by Libya (D). This action of the any breach of an engagement involves an
Libyan Government led Texaco (P) to request obligation to make reparation.
for arbitration, but it was refused by Libya (D).
A sole arbitrator was however appointed by the FACT OF THE CASE
International Court of Justice on Texaco’s
request, and Libya (D) was found to have There was an agreement between Germany
breached its obligations under the Deeds of and Poland and that bilateral treaty was known
Concessions and was also legally bound to as the Geneva Upper Silesia convention 1922.
perform in accordance with their terms. it had been provided in that treaty that on
transfer of sovereignty of certain territories from
Issue. Whenever reference is being made to Germany to Poland after the 1st world war,
general principles of law in the International existing proprietary right were to be maintained
arbitration context, can this be held to be a except that the Polish Government was
sufficient criterion for the internationalization of granted a right of expropriation under certain
a contract? condition with respects of all property
belonging to German nationals in Upper
Held. Yes. Whenever reference is been made Silesia. The present dispute arose when
to general principles of law in the international Poland seized to companies there in breach of
arbitration context, it is always held to be a its international obligation under the Upper
sufficient criterion for the internationalization of Silesia convention of 1922. The Germany
a contract. The lack of adequate law in the demanded compensation from the Poland.
state considered and the need to protect the
private contracting party against unilateral and ISSUE
abrupt modifications of law in the contracting
state is a justification to the recourse to general The issues of the case were as follows:
principles. Though international law involves Whether the convention of 1922 creates any
subjects of a diversified nature, legal obligation on the part of the Poland. Where
international capacity is not solely attributable seizure of the 2 companies by the Polish
to a state. A private contracting party, unlike a Government is contrary to its international
state, has only a limited capacity and is limited obligation, whether Poland is bound to make
to invoke only those rights that he derives from reparation to Germany. If there appears any
his contract. breach of international obligation, whether
Poland is bounty to make reparation to
Discussion. Applying Libyan law or Germany.
international law in the arbitration proceedings
was a conflict encountered by in this case. DECISION
Though the contract itself deferred to Libyan
law, the court noted that Libyan law does not The reparation of wrong may consist in an
preclude the application of international law, indemnity corresponding to the damage which
but that the two must be combined in order to is contrary of International Law. Right or
verify that Libyan law complies with interests of an individual the violation of which
international law. Even though the right of a rights cause damages are always in a different
state to nationalize is recognized by plain to rights belonging to a state, which rights
international law, this right in itself is not a may also be infringed by the same act.
sufficient justification not to regard its
contractual obligations REASONING