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677 (1900)
Facts: It will be convenient to refer to some leading French treatises on international law as
These are two appeals from decrees of the district court of the United States for the determined by the general consent of civilized nations.
southern district of Florida condemning two fishing vessels and their cargoes as prize of
war. 'Enemy ships,' say Pistoye and Duverdy, in their Treatise on Maritime Prizes, published
in 1855, 'are good prize. Not all, however; for it results from the unanimous accord of
Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in the maritime powers that an exception should be made in favor of coast fishermen.
fishing on the coast of Cuba. It sailed under the Spanish flag and was owned by a Such fishermen are respected by the enemy so long as they devote themselves
Spanish subject of Cuban birth, living in the city of Havana. It was commanded by a exclusively to fishing.'
subject of Spain, also residing in Havana. Her master and crew had no interest in the De Cussy, in his work on the Phases and Leading Cases of the Maritime Law of Nations,
vessel, but were entitled to share her catch. affirms in the clearest language the exemption from capture of fishing boats, saying,
that 'in time of war the freedom of fishing is respected by belligerents; fishing boats are
Her cargo consisted of fresh fish, caught by her crew from the sea, put on board as they considered as neutral; in law, as in principle, they are not subject either to capture or to
were caught, and kept and sold alive. Until stopped by the blockading squadron she confiscation.
had no knowledge of the existence of the war or of any blockade. She had no arms or
ammunition on board, and made on attempt to run the blockade after she knew of its Ortolan, in the fourth edition of his Regles Internationales et Diplomatie de la Mer,
existence, nor any resistance at the time of the capture. after stating the general rule that the vessels and cargoes of subjects of the enemy are
lawful prize, says: 'Nevertheless, custom admits an exception in favor of boats engaged
The Paquete Habana (1st vessel) was a sloop and had a crew of three Cubans, including in the coast fishery; these boats, as well as their crews, are free from capture and
the master, who had a fishing license from the Spanish government, and no other exempt from all hostilities. The coast-fishing industry is, in truth, wholly pacific, and of
commission or license. She left Havana and was captured by the United States gunboat much less importance in regard to the national wealth that it may produce than
Castine. maritime commerce or the great fisheries. Peaceful and wholly inoffensive, those who
carry it on, may be called the harvesters of the territorial seas, since they confine
The Lola (2nd vessel) was a schooner and had a crew of six Cubans, including the themselves to gathering in the products thereof; they are for the most part poor
master, and no commission or license. She was stopped by the United States steamship families who seek in this calling hardly more than the means of gaining their livelihood.'
Cincinnati, and was warned not to go into Havana, but was told that she would be Again, after observing that there are very few solemn public treaties which make
allowed to land at Bahia Honda. She then set for Bahia Honda, but on the next morning, mention of the immunity of fishing boats in time of war, he says: 'From another point
when near that port, was captured by the United States steamship Dolphin. of view the custom which sanctions this immunity is not so general that it can be
considered as making an absolute international rule; but it has been so often put in
Both the fishing vessels were brought by their captors into Key West. A libel for the practice, and, besides, it accords so well with the rule in use in wars on land, in regard
condemnation of each vessel and her cargo as prize of war was filed. Each vessel was to peasants and husbandmen, to whom coast fishermen may be likened, that it will
sold by auction (the Paquete Habana for the sum of $490 and the Lola for the sum of doubtless continue to be followed in maritime wars to come. (A lot of opinions of other
$800). There was no other evidence in the record of the value of either vessel or of her writers were also included which will not be mentioned in this digest)
This review of the precedents and authorities on the subject appears to us abundantly
Issue: to demonstrate that at the present day, by the general consent of the civilized nations
of the world, and independently of any express treaty or other public act, it is an
Whether or not the fishing smacks were subject to capture during the war with Spain. established rule of international law, founded on considerations of humanity to a poor
and industrious order of men, and of the mutual convenience of belligerent states, that
Held: coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed
and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are
No. By an ancient usage among civilized nations, beginning centuries ago, and gradually exempt from capture as prize of war.
ripening into a rule of international law, coast fishing vessels, pursuing their vocation of
catching and bringing in fresh fish, have been recognized as exempt, with their cargoes The exemption, of course, does not apply to coast fishermen or their vessels if
and crews, from capture as prize of war. (The case then discussed instances throughout employed for a warlike purpose, or in such a way as to give aid or information to the
history where fishing vessels were captured.)
enemy; nor when military or naval operations create a necessity to which all private Nicaragua vs. USA (1986)
interests must give way.
In 1984, Nicaragua (plaintiff) brought suit against the United States (defendant)
charging violations of customary and treaty law as a result of the United States’ military
Nor has the exemption been extended to ships or vessels employed on the high sea in
and paramilitary activities within Nicaragua. Specifically, Nicaragua alleged the United
taking whales or seals or cod or other fish which are not brought fresh to market, but
States violated Article 2, paragraph 4 of both the United Nations Charter and customary
are salted or otherwise cured and made a regular article of commerce.
international law by committing attacks on oil pipelines, storage and port facilities, and
Nicaraguan air space; as well as training, arming, equipping, financing and supplying
This rule of international law is one which prize courts administering the law of nations
counter-revolutionary forces seeking to overthrow the Nicaraguan government.
are bound to take judicial notice of, and to give effect to, in the absence of any treaty
or other public act of their own government in relation to the matter. The United States withdrew from the proceedings, but noted its position that
Nicaragua had supplied arms and other support from its territory to armed opposition
By the practice of all civilized nations, vessels employed only for the purposes of to the government of El Salvador. The United States maintained that its activities
discovery or science are considered as exempt from the contingencies of war, and against Nicaragua were committed out of its desire to provide collective self-defense
therefore not subject to capture. It has been usual for the government sending out for El Salvador and other Central American states allegedly threatened by Nicaragua.
such an expedition to give notice to other powers; but it is not essential.
The International Court of Justice (ICJ) heard the case and first decided that it did not
have jurisdiction over Nicaragua’s claims based on Article 2(4) of the U.N. Charter.
To this subject in more than one aspect are singularly applicable the words uttered by
However, it did exercise jurisdiction over Nicaragua’s claims that the United States
Mr. Justice Strong, speaking for this court: 'Undoubtedly no single nation can change
violated principles of customary international law. The United States defended its
the law of the sea. The law is of universal obligation and no statute of one or two
actions by arguing it was entitled to invoke the principle of “collective self-dense” in
nations can create obligations for the world. Like all the laws of nations, it rests upon
customary international law which permits such actions by a State on behalf of other
the common consent of civilized communities. It is of force, not because it was
States that have experienced an armed attack. The ICJ considered this argument.
prescribed by any superior power, but because it has been generally accepted as a rule
of conduct. Whatever may have been its origin, whether in the usages of navigation, or The ruling[edit]
in the ordinances of maritime states, or in both, it has become the law of the sea only
On June 27, 1986, the Court made the following ruling:
by the concurrent sanction of those nations who may be said to constitute the
commercial world. Many of the usages which prevail, and which have the force of law, The Court
doubtless originated in the positive prescriptions of some single state, which were at
first of limited effect, but which, when generally accepted, became of universal 1. Decides that in adjudicating the dispute brought before it by the Application
obligation.' filed by the Republic of Nicaragua on 9 April 1984, the Court is required to
apply the "multilateral treaty reservation"contained in proviso (c) to the
In the case, each vessel was of a moderate size, such as is not unusual in coast fishing declaration of acceptance of jurisdiction made under Article 36, paragraph 2,
smacks, and was regularly engaged in fishing on the coast of Cuba. The crew of each of the Statute of the Court by the Government of the United States of
were few in number, had no interest in the vessel, and received, in return for their toil America deposited on 26 August 1946;
and enterprise, two thirds of her catch, the other third going to her owner by way of 2. Rejects the justification of collective self-defence maintained by the United
compensation for her use. Each vessel went out from Havana to her fishing ground, and States of America in connection with the military and paramilitary activities in
was captured when returning along the coast of Cuba. The cargo of each consisted of and against Nicaragua the subject of this case;
fresh fish, caught by her crew from the sea, and kept alive on board. Although one of 3. Decides that the United States of America, by training, arming, equipping,
the vessels extended her fishing trip, we cannot doubt that each was engaged in the financing and supplying the contra forces or otherwise encouraging,
coast fishery, and not in a commercial adventure, within the rule of international law. supporting and aiding military and paramilitary activities in and against
Nicaragua, has acted, against the Republic of Nicaragua, in breach of its
The case was adjudged that the capture was unlawful and without probable cause obligation under customary international lawnot to intervene in the affairs
ordered that the proceeds of the sale of the vessel, together with the proceeds of any of another State;
sale of her cargo, be restored to the claimant, with damages and costs 4. Decides that the United States of America, by certain attacks on Nicaraguan
territory in 1983-1984, namely attacks on Puerto Sandino on 13 September
and 14 October 1983, an attack on Corinto on 10 October 1983; an attack on
Potosi Naval Base on 4/5 January 1984, an attack on San Juan del Sur on 7
March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March 12. Decides that the United States of America is under a duty immediately to
1984; and an attack on San Juan del Norte on 9 April 1984; and further by cease and to refrain from all such acts as may constitute breaches of the
those acts of intervention referred to in subparagraph (3) hereof which foregoing legal obligations;
involve the use of force, has acted, against the Republic of Nicaragua, in 13. Decides that the United States of America is under an obligation to make
breach of its obligation under customary international law not to use force reparation to the Republic of Nicaragua for all injury caused to Nicaragua by
against another State; the breaches of obligations under customary international law enumerated
5. Decides that the United States of America, by directing or authorizing over above;
Rights of Nicaraguan territory, and by the acts imputable to the United States 14. Decides that the United States of America is under an obligation to make
referred to in subparagraph (4) hereof, has acted, against the Republic of reparation to the Republic of Nicaragua for all injury caused to Nicaragua by
Nicaragua, in breach of its obligation under customary international law not the breaches of the Treaty of Friendship, Commerce and Navigation between
to violate the sovereignty of another State; the Parties signed at Managua on 21 January 1956;
6. Decides that, by laying mines in the internal or territorial waters of the 15. Decides that the form and amount of such reparation, failing agreement
Republic of Nicaragua during the first months of 1984, the United States of between the Parties, will be settled by the Court, and reserves for this
America has acted, against the Republic of Nicaragua, in breach of its purpose the subsequent procedure in the case;
obligations under customary international law not to use force against 16. Recalls to both Parties their obligation to seek a solution to their disputes by
another State, not to intervene in its affairs, not to violate its sovereignty peaceful means in accordance with international law.[11]
and not to interrupt peaceful maritime commerce;
7. Decides that, by the acts referred to in subparagraph (6) hereof the United SOUTH-WEST AFRICA CASES (SECOND PHASE)
States of America has acted, against the Republic of Nicaragua, in breach of its
obligations under Article XIX of the Treaty of Friendship, Commerce and Judgment of 18 July 1966
Navigation between the United States of America and the Republic of
The South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), which
Nicaragua signed at Managua on 21 January 1956;
relate to the continued existence of the Mandate for South West Africa and the duties
8. Decides that the United States of America, by failing to make known the and performance of South Africa as Mandatory thereunder, were instituted by
existence and location of the mines laid by it, referred to in subparagraph (6) Applications of the Governments of Ethiopia and Liberia filed in the Registry on 4
hereof, has acted in breach of its obligations under customary international November 1960. By an Order of 20 May 1961 the Court joined the proceedings in the
law in this respect; two cases. The Government of South Africa raised preliminary objections to the Court's
9. Finds that the United States of America, by producing in 1983 a manual proceeding to hear the merits of the case, but these were dismissed by the Court on
entitled 'Operaciones sicológicas en guerra de guerrillas', and disseminating it 21 December 1962, the Court finding that it had jurisdiction to adjudicate upon the
to contra forces, has encouraged the commission by them of acts contrary to merits of the dispute.
general principles of humanitarian law; but does not find a basis for In its Judgment on the second phase of the cases the Court, by the President's casting
concluding that any such acts which may have been committed are imputable vote, the votes being equally divided (seven-seven), found that the Applicant States
to the United States of America as acts of the United States of America; could not be considered to have established any legal right or interest in the subject
10. Decides that the United States of America, by the attacks on Nicaraguan matter of their claims and accordingly decided to reject them.
territory referred to in subparagraph (4) hereof, and by declaring a general The President, Sir Percy Spender, has appended a Declaration to the Judgment. Judge
embargo on trade with Nicaragua on 1 May 1985, has committed acts Morelli and Judge ad hoc van Wyk have appended separate opinions. Vice-President
calculated to deprive of its object and purpose the Treaty of Friendship, Wellington Koo, Judges Koretsky, Tanaka, Jessup, Padilla Nervo and Forster and
Commerce and Navigation between the Parties signed at Managua on 21 Judge ad hoc Sor Louis Mbanefo have appended dissenting opinions.
January 1956; *
11. Decides that the United States of America, by the attacks on Nicaraguan **
territory referred to in subparagraph (4) hereof, and by declaring a general The Applicants, acting in the capacity of States which were members of the former
embargo on trade with Nicaragua on 1 May 1985, has acted in breach of its League of Nations, put forward various allegations of contraventions of the League of
obligations under Article XIX of the Treaty of Friendship, Commerce and Nations Mandate for South West Africa by the Republic of South Africa.
Navigation between the Parties signed at Managua on 21 January 1956; The contentions of the Parties covered, inter alia, the following issues: whether the
Mandate for South West Africa was still in force and, if so, whether the Mandatory's
obligation to furnish annual reports on its administration to the Council of the League
of Nations had become transformed into an obligation so to report to the General provisions of the mandates. If the answer were that the Applicants could not be
Assembly of the United Nations; whether the Respondent had, in accordance with the regarded as possessing the legal right or interest claimed, then even if the various
Mandate, promoted to the utmost the material and moral well-being and the social allegations of contraventions of the Mandate for South West Africa were established,
progress of the inhabitants of the territory, whether the Mandatory had contravened the Applicants would still not be entitled to the pronouncements and declarations
the prohibition in the Mandate of the "military training of the natives" and the which, in their final submissions, they asked the Court to make.
establishment of military or naval bases or the erection of fortifications in the territory; It was in their capacity as former members of the League of Nations that the Applicants
and whether South Africa had contravened the provision in the Mandate that it (the appeared before the Court, and the rights they claimed were those that the members
Mandate) can only be modified with the consent of the Council of the League of of the League were said to have been invested with in the time of the League.
Nations, by attempting to modify the Mandate without the consent of the United Accordingly, in order to determine the rights and obligations of the Parties relative to
Nations General Assembly, which, it was contended by the Applicants, had replaced the the Mandate, the Court had to place itself at the point in time when the mandates
Council of the League for this and other purposes. system was instituted. Any enquiry into the rights and obligations of the Parties must
Before dealing with these questions, however, the Court considered that there were proceed principally on the basis of considering the texts of the instruments and
two questions of an antecedent character, appertaining to the merits of the case, which provisions in the setting of their period.
might render an enquiry into other aspects of the case unnecessary. One was whether Similarly, attention must be paid to the juridical character and structure of the
the Mandate skill subsisted at all and the other was the question of the Applicants' institution, the League of Nations, within the framework of which the mandates system
standing in this phase of the proceedings - i.e. their legal right or interest regarding the was organized. A fundamental element was that Article 2 of the Covenant provided
subject matter of their claims. As the Court based its Judgment on a finding that the that the "action of the League under this Covenant shall be effected through the
Applicants did not possess such a legal right or interest, it did not pronounce upon the instrumentality of an Assembly and of a Council, with a permanent Secretariat".
question of whether the Mandate was still in force. Moreover, the Court emphasized Individual member States could not themselves act differently relative to League
that its 1962 decision on the question of competence was given without prejudice to matters unless it was otherwise specially so provided by some article of the Covenant.
the question of the survival of the Mandate - a question appertaining to the merits of It was specified in Article 22 of the Covenant that the "best method of giving practical
the case, and not in issue in 1962 except in the sense that survival had to be assumed effect to [the] principle" that the "well-being and development" of those peoples in
for the purpose of determining the purely jurisdictional issue - which was all that was former enemy colonies "not yet able to stand by themselves" formed "a sacred trust of
then before the Court. civilization" was that "the tutelage of such peoples should be entrusted to advanced
Turning to the basis of its decision in the present proceedings, the Court recalled that nations . . . who are willing to accept it" and it specifically added that it was "on behalf
the mandates system was instituted by Article 22 of the Covenant of the League of of the League" that "this tutelage should be exercised by those nations as
Nations. There were three categories of mandates, 'A', 'B' and 'C' mandates, which had, Mandatories". The mandatories were to be the agents of the League and not of each
however, various features in common as regards their structure. The principal element and every member of it individually.
of each instrument of mandate consisted of the articles defining the mandatory's Article 22 of the Covenant provided that "securities for the performance" of the sacred
powers and its obligations in respect of the inhabitants of the territory and towards the trust were to be "embodied in this Covenant". By paragraphs 7 and 9 of Article 22,
League and its organs. The Court referred to these as the "conduct" provisions. In every mandatory was to "render to the Council an annual report in reference to the
addition, each instrument of mandate contained articles conferring certain rights territory"; and a Permanent Mandates Commission was to be constituted "to receive
relative to the mandated territory directly upon the members of the League as and examine" these annual reports and "to advise the Council on all matters relating to
individual States, or in favour of their nationals. The Court referred to rights of this kind the observance of the mandates". In addition, it was provided, in the instruments of
as "special interests", embodied in the "special interests" provisions of the mandates. mandate themselves, that the annual reports were to be rendered "to the satisfaction
In addition, every mandate contained a jurisdictional clause, which, with a single of the Council".
exception, was in identical terms, providing for a reference of disputes to the Individual member States of the League could take part in the administrative process
Permanent Court of International Justice, which, the Court had found in the first phase only through their participation in the activities of the organs by means of which the
of the proceedings, was now, by virtue of Article 37 of the Court's Statute, to be League was entitled to function. They had no right of direct intervention relative to the
construed as a reference to the present Court. mandatories: this was the prerogative of the League organs.
The Court drew a distinction between the "conduct" and the "special interests" The manner in which the mandate instruments were drafted only lends emphasis to
provisions of the mandates, the present dispute relating exclusively to the former. The the view that the members of the League generally were not considered as having any
question to be decided was whether any legal right or interest was vested in members direct concern with the setting up of the various mandates. Furthermore, while the
of the League of Nations individually as regards the "conduct" clauses of the mandates - consent of the Council of the League was required for any modification of the terms of
i.e., whether the various mandatories had any direct obligation towards the other the mandate, it was not stated that the consent of individual members of the League
members of the League individually, as regards the carrying out of the "conduct" was additionally required. Individual members of the League were not parties to the
various instruments of mandate, though they did, to a limited extent, and in certain existence of such rights in order to avert those consequences would be to engage in an
respects only, derive rights from them. They could draw from the instruments only such essentially legislative task, in the service of political ends.
rights as these unequivocally conferred. Turning to the contention that the Applicants' legal right or interest had been settled by
Had individual members of the League possessed the rights which the Applicants the 1962 Judgment and could not now be reopened, the Court pointed out that a
claimed them to have had, the position of a mandatory caught between the different decision on a preliminary objection could never be preclusive of a matter appertaining
expressions of view of some 40 or 50 States would have been untenable. Furthermore, to the merits, whether or not it had in fact been dealt with in connection with the
the normal League voting rule was unanimity, and as the mandatory was a member of preliminary objection. When preliminary objections were entered by the defendant
the Council on questions affecting its mandate, such questions could not be decided party in a case, the proceedings on the merits were suspended, by virtue of Article 62,
against the mandatory's contrary vote. This system was inconsistent with the position paragraph 3, of the Court's Rules. Thereafter, and until the proceedings on the merits
claimed for individual League members by the Applicants, and if, as members of the were resumed, there could be no decision finally determining or prejudging any issue of
League, they did not possess the rights contended for, they did not possess them now. merits. A judgment on a preliminary objection might touch on a point of merits, but this
* it could do only in a provisional way, to the extent necessary for deciding the question
** raised by the preliminary objection. It could not rank as a final decision on the point of
It had been attempted to derive a legal right or interest in the conduct of the Mandate merits involved.
from the simple existence, or principle, of the "sacred trust". The sacred trust, it was While the 1962 Judgment decided that the Applicants were entitled to invoke the
said was a "sacred trust of civilization" and hence all civilized nations had an interest in jurisdictional clause of the Mandate, it remained for them, on the merits, to establish
seeing that it was carried out. But in order that this interest might take on a specifically that they had such a right or interest in the carrying out of the provisions which they
legal character the sacred trust itself must be or become something more than a moral invoked as to entitle them to the pronouncements and declarations they were seeking
or humanitarian ideal. In order to generate legal rights and obligations, it must be given from the Court. There was no contradiction between a decision that the Applicants had
juridical expression and be clothed in legal form. The moral ideal must not be confused the capacity to invoke the jurisdictional clause and a decision that the Applicants had
with the legal rules intended to give it effect. The principle of the "sacred trust" had no not established the legal basis of their claim on the merits.
residual juridical content which could, so far as any particular mandate is concerned, In respect of the contention that the jurisdictional clause of the Mandate conferred a
operate per se to give rise to legal rights and obligations outside the system as a whole. substantive right to claim from the Mandatory the carrying out of the "conduct of the
Nor could the Court accept the suggestion that even if the legal position of the Mandate" provisions, it was to be observed that it would be remarkable if so important
Applicants and of other individual members of the League were as the Court held it to a right had been created in so casual and almost incidental a fashion. There was
be, this was so only during the lifetime of the League, and that on the latter's nothing about this particular jurisdictional clause, in fact, to differentiate it from many
dissolution the rights previously resident in the League itself, or in its competent others, and it was an almost elementary principle of procedural law that a distinction
organs, devolved upon the individual States which were members of it at the date of its had to be made between, on the one hand, the right to activate a court and the right of
dissolution. Although the Court held in 1962 that the members of a dissolved a court to examine the merits of a claim and, on the other, the plaintiff's legal right in
international organization can be deemed, though no longer members of it, to retain respect of the subject matter of its claim, which it would have to establish to the
rights which, as members, they individually possessed when the organization was in satisfaction of the Court. Jurisdictional clauses were adjectival not substantive in their
being, this could not extend to ascribing to them, upon and by reason of the nature and effect: they did not determine whether parties had substantive rights, but
dissolution, rights which, even previously as members, they never did individually only whether, if they had them, they could vindicate them by recourse to a tribunal.
possess. Nor could anything that occurred subsequent to the dissolution of the League The Court then considered the rights of members of the League Council under the
operate to invest its members with rights they did not previously have as members of jurisdictional clauses of the minorities treaties signed after the First World War, and
the League. The Court could not read the unilateral declarations, or statements of distinguished these clauses from the jurisdictional clauses of the instruments of
intention, made by the various mandatories on the occasion of the dissolution of the mandate. In the case of the mandates the jurisdictional clause was intended to give the
League, expressing their willingness to continue to be guided by the mandates in their individual members of the League the means of protecting their "special interests"
administration of the territories concerned, as conferring on the members of the relative to the mandated territories; in the case of the minorities treaties, the right of
League individually any new legal rights or interests of a kind they did not previously action of the Members of the Council under the jurisdictional clause was only intended
possess. for the protection of minority populations. Furthermore, any "difference of opinion"
It might be said that in so far as the Court's view led to the conclusion that there was was characterized in advance in the minorities treaties as being justiciable, because it
now no entity entitled to claim the due performance of the Mandate, it must be was to be "held to be a dispute of an international character". Hence no question of
unacceptable, but if a correct legal reading of a given situation showed certain alleged any lack of legal right or interest could arise. The jurisdictional clause of the mandates
rights to be non-existent, the consequences of this must be accepted. To postulate the on the other hand had none of the special characteristics or effects of those of the
minorities treaties.
The Court next dealt with what had been called the broad and unambiguous language enforced by any legal process had always been the rule rather than the exception-and
of the jurisdictional clause - the literal meaning of its reference to "any dispute this was even more the case in 1920 than today.
whatever" coupled with the words "between the Mandatory and another Member of Moreover, the argument of "necessity" amounted to a plea that the Court should allow
the League of Nations" and the phrase "relating . . . to the provisions of the Mandate", the equivalent of an actio popularis, or right resident in any member of a community to
which, it was said, permitted a reference to the Court of a dispute about any provision take legal action in vindication of a public interest. But such a right was not known to
of the Mandate. The Court was not of the opinion that the word "whatever" in Article international law as it stood at present: and the Court was unable to regard it as
7, paragraph 2, of the Mandate did anything more than lend emphasis to a phrase that imported by "the general principles of law" referred to in Article 38, paragraph 1 (c), of
would have meant exactly the same without it. The phrase "any dispute" (whatever) its Statute.
did not mean anything intrinsically different from "a dispute"; nor did the reference to In the final analysis, the whole "necessity" argument appeared to be based on
the "provisions" of the Mandate, in the plural, have any different effect from what considerations of an extra-legal character, the product of a process of after-knowledge.
would have resulted from saying "a provision". A considerable proportion of the It was events subsequent to the period of the League, not anything inherent in the
acceptances of the Court's compulsory jurisdiction under paragraph 2 of Article 36 of its mandates system as it was originally conceived, that gave rise to the alleged
Statute were couched in language similarly broad and unambiguous and even wider. It "necessity", which, if it existed, lay in the political field and did not constitute necessity
could never be supposed that on the basis of this wide language the accepting State in the eyes of the law. The Court was not a legislative body. Parties to a dispute could
was absolved from establishing a legal right or interest in the subject matter of its always ask the Court to give a decision ex aequo et bono, in terms of paragraph 2 of
claim. The Court could not entertain the proposition that a jurisdictional clause by Article 38. Failing that, the duty of the Court was plain: its duty was to apply the law as
conferring competence on the Court thereby and of itself conferred a substantive right. it found it, not to make it.
The Court next adverted to the question of admissibility. It observed that the 1962 It might be urged that the Court was entitled to "fill in the gaps", in the application of a
Judgment had simply found that it had "jurisdiction to adjudicate upon the merits" and teleological principle of interpretation, according to which instruments must be given
that if any question of admissibility were involved it would fall to be decided now, as their maximum effect in order to ensure the achievement of their underlying purposes.
occurred in the merits phase of theNottebohm case; if this were so the Court would This principle was a highly controversial one and it could, in any event, have no
determine the question in exactly the same way, i.e., looking at the matter from the application to circumstances in which the Court would have to go beyond what could
point of view of the capacity of the Applicants to advance their present claim, the Court reasonably be regarded as being a process of interpretation and would have to engage
would hold that they had not got such capacity, and hence that the claim was in a process of rectification or revision. Rights could not be presumed to exist merely
inadmissible. because it might seem desirable that they should. The Court could not remedy a
Finally, the Court dealt with what had been called the argument of "necessity". The gist deficiency if, in order to do so, it had to exceed the bounds of normal judicial action.
of this was that since the Council of the League had no means of imposing its views on It might also be urged that the Court would be entitled to make good an omission
the Mandatory, and since no advisory opinion it might obtain from the Court would be resulting from the failure of those concerned to foresee what might happen and to
binding on the latter, the Mandate could have been flouted at will. Hence, it was have regard to what it might be presumed the framers of the mandate would have
contended, it was essential, as an ultimate safeguard or security for the sacred trust, wished, or would even have made express provision for, had they had advance
that each Member of the League should be deemed to have a legal right or interest in knowledge of what was to occur. The Court could not, however, presume what the
that matter and be able to take direct action relative to it. But in the functioning of the wishes and intentions of those concerned would have been in anticipation of events
mandates system in practice, much trouble was taken to arrive, by argument, that were neither foreseen nor foreseeable; and even if it could, it would certainly not
discussion, negotiation and cooperative effort, at generally acceptable conclusions and be possible to make the assumptions contended for by the Applicants as to what those
to avoid situations in which the Mandatory would be forced to acquiesce in the views intentions were.
of the rest of the Council short of casting an adverse vote. In this context, the existence For the foregoing reasons, the Court decided to reject the claims of the Empire of
of substantive rights for individual members of the League in the conduct of the Ethiopia and the Republic of Liberia.
mandates exercisable independently of the Council would have been out of place.
Furthermore, leaving aside the improbability that, had the framers of the mandates Barcelona Traction Case
system intended that it should be possible to impose a given policy on a mandatory, Brief Fact Summary. Belgium (P) claimed Spain (D) should be held accountable for the
they would have left this to be haphazard and uncertain action of individual members injury to a Canadian corporation operating in Spain.
of the League, it was scarcely likely that a system which deliberately made it possible
for mandatories to block Council decisions by using their veto (though, so far as the Synopsis of Rule of Law. A state assumes an obligation concerning the treatment of
Court was aware, this had never been done) should simultaneously invest individual foreign investments based on general international law, once the state admits foreign
members of the League with a legal right of complaint if the mandatory made use of investments or foreign nationals into its territory.
this veto. In the international field, the existence of obligations that could not be
Facts. On behalf of Belgian nationals (P) who had invested in a Canadian corporation, - that the Philippines is not a signatory to the Hague Convention (War
Belgium (P) sued Spain (D) on the premise that Spain (D) was responsible for acts in Crimes)
violation of international law that had caused injury to the Canadian corporation and its
Belgian shareholders (P). 3. Petitioner likewise assails that the US is not a party of interest in the case
hence the 2 US prosecutors cannot practice law in the Philippines.
Issue. Does a state assumes an obligation concerning the treatment of foreign
investments based on general international law, once the state admits foreign
investments or foreign nationals into its territory? Issue: Whether or not EO 68 is constitutional thus the military tribunal
jurisdiction is valid
Held. Yes. A state assumes an obligation concerning the treatment of foreign
investments based on general international law, once the state admits foreign HELD:
investments or foreign nationals into its territory. It is highly imperative to draw a
distinction between those obligations of a state toward the international community as 1. EO 68 is constitutional hence the tribunal has jurisdiction to try Kuroda.
a whole and those arising from the field of diplomatic protection. It is only the party to EO 68 was enacted by the President and was in accordance with Sec. 3, Art.
whom an international obligation is due can bring a claim if a breach of an obligation 2 of Constitution which renounces war as an instrument of national policy.
that is the subject of diplomatic protection occurs. Hence it is in accordance with generally accepted principles of international
law including the Hague Convention and Geneva Convention, and
Discussion. The basic right of all human persons was mentioned by the Court to be other international jurisprudence established by the UN, including the
protected against slavery and racial discrimination as deriving from basic general
principle that all persons (military or civilian) guilty of plan, preparing,
international law. Such rights may derive from international instruments of a universal
or quasi-universal character. Such obligations are obligations erga omnes, that is, all
waging a war of aggression and other offenses in violation of laws and
states have a legal interest in their protection. customs of war. The Philippines may not be a signatory to the 2 conventions
at that time but the rules and regulations of both are wholly based on the
PHILIPPINE PRACTICE generally accepted principles of international law. They were accepted even
by the 2 belligerent nations (US and Japan)
Article II, Section 2. The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of the law of the 2. As to the participation of the 2 US prosecutors in the case, the US is a
land and adheres to the policy of peace, equality, justice, freedom, cooperation, and party of interest because its country and people have greatly aggrieved by the
amity with all nations. crimes which petitioner was being charged of.
Kuroda vs. Jalandoni 3. Moreover, the Phil. Military Commission is a special military tribunal and
G.R. L-2662, March 26, 1949 rules as to parties and representation are not governed by the rules of court
Ponente: Moran, C.J. but the provision of this special law.
1. Petitioner Sheginori Kuroda was the former Lt. General of the Japanese USA v. GUINTO
Army and commanding general of the Japanese forces during the occupation 182 SCRA 644
(WWII) in the country. He was tried before the Philippine Military
Commission for War Crimes and other atrocities committed against military FACTS:
and civilians. The military commission was establish under Executive Order The cases have been consolidated because they all involve the doctrine of state
68. immunity. In GR No. 76607, private respondents re suing several officers of the US Air
Force in connection with the bidding for barbering services in Clark Air Base. In GR No.
80018, Luis Bautista was arrested following a buy-bust operation for violation of the
2. Petitioner assails the validity of EO 68 arguing it is unconstitutional and
Dangerous Drugs Act. Bautista then filed a complaint for damages claiming that
hence the military commission did not have the jurisdiction to try him on the
because of the acts of the respondents, he lost his job. In GR No. 79470, Fabian Genove
following grounds:
filed a complaint for damages against petitioner for his dismissal as cook in the US Air the trial court issued an order denying, among others, petitioner’s motion to dismiss
Force. In GR No. 80258, complaint for damage was filed by the respondents against after finding that petitioner “shed off [its] sovereign immunity by entering into the
petitioners for injuries allegedly sustained by plaintiffs. All cases invoke the doctrine of business contract in question” Petitioner forthwith elevated the matter to us. In its
state immunity as ground to dismiss the same. petition, petitioner invokes the privilege of sovereign immunity only on its own behalf
and on behalf of its official representative, the Papal Nuncio.
Are the petitioners immune from suit? ISSUE:
Whether the Holy See is immune from suit insofar as its business relations regarding
HELD: selling a lot to a private entity
It is clear that the petitioners in GR No. 80018 were acting in the exercise of their
official functions. They cannot be directly impleaded for the US government has not RULING:
given its consent to be sued. In GR No. 79470, petitioners are not immune for The Republic of the Philippines has accorded the Holy See the status of a foreign
restaurants are commercial enterprises, however, claim of damages by Genove cannot sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic
be allowed on the strength of the evidence presented. Barber shops are also representations with the Philippine government since 1957 (Rollo, p. 87). This appears
commercial enterprises operated by private persons, thus, petitioners in GR No. 76607 to be the universal practice in international relations.
cannot plead any immunity from the complaint filed. In GR No. 80258, the respondent There are two conflicting concepts of sovereign immunity, each widely held and firmly
court will have to receive the evidence of the alleged irregularity in the grant of the established. According to the classical or absolute theory, a sovereign cannot, without
barbershop concessions before it can be known in what capacity the petitioners were its consent, be made a respondent in the courts of another sovereign. According to the
acting at the time of the incident. newer or restrictive theory, the immunity of the sovereign is recognized only with
regard to public acts or acts jure imperii of a state, but not with regard to private acts
or acts jure gestionis
THE HOLY SEE vs. THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure
Regional Trial Court of Makati, Branch 61 and STARBRIGHT SALES ENTERPRISES, INC. imperii, especially when it is not undertaken for gain or profit.
G.R. No. 101949 December 1, 1994 In the case at bench, if petitioner has bought and sold lands in the ordinary course of a
real estate business, surely the said transaction can be categorized as an act jure
FACTS: Petitioner is the Holy See who exercises sovereignty over the Vatican City in gestionis. However, petitioner has denied that the acquisition and subsequent disposal
Rome, Italy, and is represented in the Philippines by the Papal Nuncio; Private of Lot 5-A were made for profit but claimed that it acquired said property for the site of
respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the its mission or the Apostolic Nunciature in the Philippines. Private respondent failed to
real estate business. dispute said claim.
This petition arose from a controversy over a parcel of land consisting of 6,000 square Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The
meters located in the Municipality of Paranaque registered in the name of petitioner. donation was made not for commercial purpose, but for the use of petitioner to
Said lot was contiguous with two other lots registered in the name of the Philippine construct thereon the official place of residence of the Papal Nuncio. The right of a
Realty Corporation (PRC). foreign sovereign to acquire property, real or personal, in a receiving state, necessary
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting for the creation and maintenance of its diplomatic mission, is recognized in the 1961
as agent to the sellers. Later, Licup assigned his rights to the sale to private respondent. Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in
In view of the refusal of the squatters to vacate the lots sold to private respondent, a by the Philippine Senate and entered into force in the Philippines on November 15,
dispute arose as to who of the parties has the responsibility of evicting and clearing the 1965.
land of squatters. Complicating the relations of the parties was the sale by petitioner of The decision to transfer the property and the subsequent disposal thereof are likewise
Lot 5-A to Tropicana Properties and Development Corporation (Tropicana). clothed with a governmental character. Petitioner did not sell Lot 5-A for profit or gain.
private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati, It merely wanted to dispose off the same because the squatters living thereon made it
Metro Manila for annulment of the sale of the three parcels of land, and specific almost impossible for petitioner to use it for the purpose of the donation. The fact that
performance and damages against petitioner, represented by the Papal Nuncio, and squatters have occupied and are still occupying the lot, and that they stubbornly refuse
three other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana to leave the premises, has been admitted by private respondent in its complaint
petitioner and Msgr. Cirilos separately moved to dismiss the complaint — petitioner for Private respondent is not left without any legal remedy for the redress of its grievances.
lack of jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being Under both Public International Law and Transnational Law, a person who feels
an improper party. An opposition to the motion was filed by private respondent.
aggrieved by the acts of a foreign sovereign can ask his own government to espouse his
cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to
espouse its claims against the Holy See. Its first task is to persuade the Philippine
government to take up with the Holy See the validity of its claims. Of course, the
Foreign Office shall first make a determination of the impact of its espousal on the
relations between the Philippine government and the Holy See (Young, Remedies of
Private Claimants Against Foreign States, Selected Readings on Protection by Law of
Private Foreign Investments 905, 919 [1964]). Once the Philippine government decides
to espouse the claim, the latter ceases to be a private cause.

WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No.
90-183 against petitioner is DISMISSED.


125 SCRA 553

Justice JBL Reyes filed a petition on behalf of the Anti-Bases Coalition to compel the
issuance of a permit for a rally to be held at the Luneta and a subsequent march to the
U.S. Embassy on Roxas Boulevard. The petition was filed the day before the scheduled
assembly as no action had apparently been taken on the application, although it turned
out later that it had been rejected in a letter sent earlier by ordinary mail. The reasons
for the denial was the mayor’s fear that the assemblage might be infiltrated by
subversive elements to the prejudice of the public order, and thus the intended rally
would violate a city ordinance implementing the provisions of the Diplomatic
Convention requiring the receiving state to afford adequate protection to foreign
embassies; hence his suggestion that the rally be held at an enclosed place like Rizal
Coliseum for better security.

Issue: Whether the denial of the issuance and modification of the permit is meritorious
and is guaranteed under Article II, Section 3 of the Constitution.


The court set aside the denial or the modification of the permit sought and order the
respondent official to grant it. The choice of Luneta and U.S. Embassy for a public rally
cannot legally objected to in the absence of clear and present danger to life or property
of the embassy. The Philippines, being a signatory of Vienna Conventions which calls for
the protection of the premises of a diplomatic mission, adopts the generally accepted
principles of international law as part of the law of the land as cited in Article II, Section
3 of the Constitution.