state to the International Court of Justice
Military and Paramilitary Activities in and
Against Nicaragua (Nicaragua v. United States)
Brief Fact Summary. Nicaragua (P) brought a suit
against the United States (D) on the ground that the
United States (D) was responsible for illegal military
and paramilitary activities in and against Nicaragua.
The jurisdiction of the International Court of Justice
to entertain the case as well as the admissibility of
Nicaragua’s (P) application to the I.C.J. was
challenged by the United States (D).
Synopsis of Rule of Law. Nicaragua (P) brought a
suit against the United States (D) on the ground that
the United States (D) was responsible for illegal
military and paramilitary activities in and against
Nicaragua. The jurisdiction of the International Court
of Justice to entertain the case as well as the
admissibility of Nicaragua’s (P) application to the
I.C.J. was challenged by the United States (D).
Facts. The United States (D) challenged the
jurisdiction of the I.C.J when it was held responsible
for illegal military and paramilitary activities in and
against Nicaragua (P) in the suit the plaintiff brought
against the defendant in 1984. Though a declaration
accepting the mandatory jurisdiction of the Court
was deposited by the United States (D) in a 1946, it
tried to justify the declaration in a 1984 notification
by referring to the 1946 declaration and stating in
part that the declaration “shall not apply to disputes
with any Central American State”�.”�
Apart from maintaining the ground that the I.C.J
lacked jurisdiction, the States (D) also argued that
Nicaragua (P) failed to deposit a similar declaration
to the Court. On the other hand, Nicaragua (P)
based its argument on its reliance on the 1946
declaration made by the United states (D) due to the
fact that it was a “state accepting the same
obligation”� as the United States (D) when it filed
charges in the I.C.J. against the United States (D).
Also, the plaintiff intent to submit to the compulsory
jurisdiction of the I.C.J. was pointed out by the valid
declaration it made in 1929 with the I.C.J’s
predecessor, which was the Permanent Court of
International Justice, even though Nicaragua had
failed to deposit it with that court. The admissibility of
Nicaragua’s (P) application to the I.C.J. was also
challenged by the United States (D).
Issue. (1) Is the jurisdiction to entertain a dispute
between two states, if they both accept the Court’s
jurisdiction, within the jurisdiction of the International
Court of Justice?
(2) Where no grounds exist to exclude the
application of a state, is the application of such a
admissible?
Held. (1) Yes. The jurisdiction of the Court to
entertain a dispute between two states if each of the
States accepted the Court’s jurisdiction is within the
jurisdiction of the International Court of Justice. Even
though Nicaragua (P) declaration of 1929 was not
deposited with the Permanent Court, because of the
potential effect it had that it would last for many
years, it was valid.
Thus, it maintained its effect when Nicaragua
became a party to the Statute of the I.C.J because
the declaration was made unconditionally and was
valid for an unlimited period. The intention of the
current drafters of the current Statute was to
maintain the greatest possible continuity between it
and the Permanent Court. Thus, when Nicaragua
(P) accepted the Statute, this would have been
deemed that the plaintiff had given its consent to the
transfer of its declaration to the I.C.J.
(2) Yes. When no grounds exist to exclude the
application of a state, the application of such a state
to the International Court of Justice is admissible.
The five grounds upon which the United States (D)
challenged the admissibility of Nicaragua’s (P)
application were that the plaintiff failed because
there is no “indispensable parties”� rule when it
could not bring forth necessary parties, Nicaragua’s
(P) request of the Court to consider the possibility of
a threat to peace which is the exclusive province of
the Security Council, failed due to the fact that I.C.J.
can exercise jurisdiction which is concurrent with
that of the Security Council, that the I.C.J. is unable
to deal with situations involving ongoing armed
conflict and that there is nothing compelling the
I.C.J. to decline to consider one aspect of a dispute
just because the dispute has other aspects due to
the fact that the case is incompatible with the
Contadora process to which Nicaragua (P) is a
party.
The ruling
On June 27, 1986, the Court made the following
ruling:
The Court
1. Decides that in adjudicating the dispute
brought before it by the Application 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 declaration of
acceptance of jurisdiction made under Article 36,
paragraph 2, of the Statute of the Court by the
Government of the United States of America
deposited on 26 August 1946;
2. Rejects the justification of collective self-
defense maintained by the United States of America
in connection with the military and paramilitary
activities in and against Nicaragua the subject of this
case;
3. Decides that the United States of America,
by training, arming, equipping, financing and
supplying the contra forces or otherwise
encouraging, supporting and aiding military and
paramilitary activities in and against Nicaragua, has
acted, against the Republic of Nicaragua, in breach
of its obligation under customary international
law not to intervene in the affairs of another
State;
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 1984;
and an attack on San Juan del Norte on 9 April
1984; and further by those acts of intervention
referred to in subparagraph (3) hereof which involve
the use of force, has acted, against the Republic of
Nicaragua, in breach of its obligation
under customary international law not to use
force against another State;
5. Decides that the United States of America,
by directing or authorizing over Rights of Nicaraguan
territory, and by the acts imputable to the United
States referred to in subparagraph (4) hereof, has
acted, against the Republic of Nicaragua, in breach
of its obligation under customary international law
not to violate the sovereignty of another State;
6. Decides that, by laying mines in the internal
or territorial waters of the Republic of Nicaragua
during the first months of 1984, the United States of
America has acted, against the Republic of
Nicaragua, in breach of its obligations
under customary international law not to use
force against another State, not to intervene in
its affairs, not to violate its sovereignty and not
to interrupt peaceful maritime commerce;
7. Decides that, by the acts referred to in
subparagraph (6) hereof the United 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
Navigation between the United States of America
and the Republic of Nicaragua signed at Managua
on 21 January 1956;
8. Decides that the United States of America,
by failing to make known the existence and location
of the mines laid by it, referred to in subparagraph
(6) hereof, has acted in breach of its obligations
under customary international law in this respect;
9. Finds that the United States of America, by
producing in 1983 a manual entitled 'Operaciones
sicológicas en guerra de guerrillas', and
disseminating it to contra forces, has encouraged
the commission by them of acts contrary to general
principles of humanitarian law; but does not find a
basis for concluding that any such acts which may
have been committed are imputable to the United
States of America as acts of the United States of
America;
10. Decides that the United States of America,
by the attacks on Nicaraguan territory referred to in
subparagraph (4) hereof, and by declaring a general
embargo on trade with Nicaragua on 1 May 1985,
has committed acts calculated to deprive of its
object and purpose the Treaty of Friendship,
Commerce and Navigation between the Parties
signed at Managua on 21 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
embargo on trade with Nicaragua on 1 May 1985,
has acted in breach of its obligations under Article
XIX of the Treaty of Friendship, Commerce and
Navigation between the Parties signed at Managua
on 21 January 1956;
12. Decides that the United States of America is
under a duty immediately to cease and to refrain
from all such acts as may constitute breaches of the
foregoing legal obligations;
13. Decides that the United States of America is
under an obligation to make reparation to the
Republic of Nicaragua for all injury caused to
Nicaragua by the breaches of obligations under
customary international law enumerated above;
14. Decides that the United States of America is
under an obligation to make reparation to the
Republic of Nicaragua for all injury caused to
Nicaragua by the breaches of the Treaty of
Friendship, Commerce and Navigation between the
Parties signed at Managua on 21 January 1956;
15. Decides that the form and amount of such
reparation, failing agreement between the Parties,
will be settled by the Court, and reserves for this
purpose the subsequent procedure in the case;
16. Recalls to both Parties their obligation to
seek a solution to their disputes by peaceful means
in accordance with international law.[11]
Discussion. Although the questions of jurisdiction
and admissibility are primarily based on the principle
that the I.C.J. has only as much power as that
agreed to by the parties, these can be quite
complicated. The 1946 declaration of the United
States and the 1929 declaration of Nicaragua was
the main focus of the case on declaration and each
of these declarations pointed out the respective
parties’ intent as it related to the I.C.J’s jurisdiction.
NEW ZEALAND V. FRANCE

Brief Fact Summary. Australia and New Zealand

(P) requested France (D) to put an halt to
atmospheric nuclear test in the South Pacific.

Synopsis of Rule of Law. Declaration made

through unilateral acts may have the effect of
creating legal

Facts. A series of nuclear tests was completed by

France (D) in the South Pacific. This action made
Australia and New Zealand (P) to apply to the I.C.J.
demanding that France (D) cease testing
immediately. Before the case could be completed,
France (D) announced it had completed the test and
did not plan any further test. So France (D) moved
for the dismissal of the application.

Issue. May declaration made through unilateral act

has effect of creating legal obligations?

Held. Yes. Declaration made through unilateral acts

may have the effect of creating legal obligations. In
this case, the statement made by the President of
France must be held to constitute an engagement of
the State in regard to the circumstances and
intention with which they were made. Therefore,
these statement made by the France (D) are
relevant and legally binding. Application was
dismissed.

Discussion. The unilateral statements made by

French authorities were first relayed to the
government of Australia. There was no need for the
statements to be directed to any particular state for it
to have legal effect. The general nature and
characteristics of the statements alone were relevant
for evaluation of their legal implications.
Agustin v Edu (1979) 88 SCRA 195
Facts:
Leovillo Agustin, the owner of a Beetle, challenged
the constitutionality of Letter of Instruction 229 and
its implementing order No. 1 issued by LTO
Commissioner Romeo Edu. His car already had
warning lights and did not want to use this.
The letter was promulgation for the requirement of
an early warning device installed on a vehicle to
reduce accidents between moving vehicles and
parked cars.
The LTO was the issuer of the device at the rate of
not more than 15% of the acquisition cost.
The triangular reflector plates were set when the car
parked on any street or highway for 30 minutes. It
was mandatory.
Petitioner: 1. LOI violated the provisions and
delegation of police power, equal protection, and
due process/
2. It was oppressive because the make
manufacturers and car dealers millionaires at the
expense f car owners at 56-72 pesos per set.
Hence the petition.
The OSG denied the allegations in par X and XI of
the petition with regard to the unconstitutionality and
undue delegation of police power to such acts.
The Philippines was also a member of the 1968
Vienna convention of UN on road signs as a
regulation. To the petitioner, this was still an
unlawful delegation of police power.
Issue:
Is the LOI constitutional? If it is, is it a valid
delegation of police power?
Held: Yes on both. Petition dismissed.
Police power, according to the case of Edu v Ericta,
which cited J. Taney, is nothing more or less than
the power of government inherent in every
sovereignty.
The case also says that police power is state
authority to enact legislation that may interfere with
personal liberty or property to promote the general
welfare.
Primicias v Fulgoso- It is the power to describe
regulations to promote the health, morals, peace,
education, good order, and general welfare of the
people.
J. Carazo- government limitations to protect
constitutional rights did not also intend to enable a
citizen to obstruct unreasonable the enactment of
measures calculated to insure communal peace.
There was no factual foundation on petitioner to
refute validity.
Ermita Malate Hotel-The presumption of
constitutionality must prevail in the absence of
factual record in over throwing the statute.
Brandeis- constitutionality must prevail in the
absence of some factual foundation in overthrowing
the statute.
Even if the car had blinking lights, he must still buy
reflectors. His claims that the statute was oppressive
was fantastic because the reflectors were not
expensive.
SC- blinking lights may lead to confusion whether
the nature and purpose of the driver is concerned.
Unlike the triangular reflectors, whose nature is
evident because it’s installed when parked for 30
minutes and placed from 400 meters from the car
allowing drivers to see clearly.
There was no constitutional basis for petitioner
because the law doesn’t violate any constitutional
provision.
LOI 229 doesn’t force motor vehicle owners to
purchase the reflector from the LTO. It only
prescribes rge requirement from any source.
The objective is public safety.
The Vienna convention on road rights and PD 207
both recommended enforcement for installation of
ewd’s. Bother possess relevance in applying rules
with the decvlaration of principles in the Constitution.
On the unlawful delegation of legislative power, the
petitioners have no settled legal doctrines
IN RE: ESTATE OF MARCOS
I. BACKGROUND
Victims of torture, summary execution and
disappearance filed suits for damages, in the form of
a class action as well as individual direct actions,
against the Estate of the former President of the
Philippines, Ferdinand E. Marcos (MARCOS), for
human rights violations. Specifically, the violations
are alleged to have occurred during the period in
which MARCOS, as President of the Philippines,
declared martial law, from September 21, 1972 to
February 25, 1986.
In 1986 MARCOS fled the Philippines and arrived in
the State of Hawaii. MARCOS was a resident of
Hawaii at the time he was served with the
complaints that are the subject *1462 of this litigation
but he died during the pendency of these actions.
The Estate of Ferdinand E. Marcos (the ESTATE)
has been substituted in MARCOS' place; his widow,
Imelda Marcos, and his son, Ferdinand E. Marcos,
Jr., have appeared before this Court as
representatives of the ESTATE.
The action was tried in the three phases: (1) liability,
(2) exemplary damages, and (3) compensatory
damages, over a nine year period from 1986 to
1995. In the compensatory damages phase, Phase
III, this Court allowed the jury to consider the
damages to a random sample of plaintiffs as
representative of the injuries suffered by those in the
three subclasses; i.e. (1) plaintiffs who were tortured;
(2) the families of those individuals who were the
subjects of summary execution; and (3) the families
of those who disappeared as the result of the
actions of MARCOS. Pragmatically, the jury could
not hear testimony of nearly 10,000 plaintiffs in this
action within any practicable and reasonable time, to
do justice to the class members. The individual
plaintiffs who opted out of the certified class action
each presented his or her individual claim for
compensatory damages to the jury in a separate
part of the Trial.
This opinion addresses the compensatory damages
phase of the trial. The Court deals here with the
propriety of the use of inferential statistics to
ascertain the damages suffered by each of the
9,541[1] class members.
II. MARCOS REGIME
MARCOS was elected President of the Philippines
in 1965 and was re-elected in 1969. The Philippine
Constitution of 1935, still in effect in 1972, was
similar to the United States Constitution, in that it
limited election of the President to two four-year
terms. Thus, MARCOS would have had to leave the
office of the Presidency by the end of 1973, but he
did not.
On September 21, 1972 MARCOS imposed martial
law on all of the Philippines through Proclamation
1081, which suspended the Constitution, in order to
keep himself in office. The stated purpose for the
imposition of martial law, as expressed in
Proclamation 1081, was:
"to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws
and decrees, orders and regulations promulgated by
me personally or upon my direction."[2]
At the time martial law was declared, a
Constitutional Convention, elected by the people,
had been meeting and was near completion of
proposed revisions to the 1935 Constitution. On
orders from MARCOS, some delegates to the
Convention were arrested and placed under
detention while others went into hiding or left the
country leaving the revisions uncompleted.
Without allowing for ratification of the new
Constitution by a plebiscite, on January 17, 1973,
MARCOS ordered ratification of a revised
Constitution, tailor-made for his maintenance of
power. With those actions MARCOS planted the
seeds for what grew into a virtual dictatorship in the
Philippines.
The new Constitution nullified the term limits for the
President and provided that MARCOS could function
as President, using his own judgment, for as long as
necessary. Until he convened a new legislative
body, MARCOS also had sole authority to rule in the
Philippines.
Proclamation 1081 not only declared martial law, but
also set the stage for what plaintiffs alleged, and the
jury found, to be acts of torture, summary execution,
disappearance, arbitrary detention, and numerous
other atrocities for which the jury found MARCOS
personally responsible.
*1463 MARCOS gradually increased his own power
to such an extent that there were no limits to his
orders of the human rights violations suffered by
plaintiffs in this action. MARCOS promulgated
General Order No. 1 which stated he was the
Commander-in-Chief of the Armed Forces of the
Philippines. The order also stated that MARCOS
was to govern the nation and direct the operation of
the entire Government, including all its agencies and
instrumentalities. By General Orders 2 and 2-A,
signed by MARCOS immediately after proclaiming
martial law, MARCOS authorized the arrest, by the
military, of a long list of dissidents. By General Order
3, MARCOS maintained, as captive, the executive
and judicial branches of all political entities in the
Philippines until otherwise ordered by himself
personally.[3]
Immediately after the declaration of martial law the
issuance of General Orders 1, 2, 2A, 3 and 3A
caused arrests of persons accused of subversion,
apparently because of their real or apparent
opposition to the MARCOS government. These
arrests were made pursuant to orders issued by the
Secretary of Defense Juan Ponce Enrile ("ENRILE"),
or MARCOS himself.
The arrest orders were means for detention of each
of the representatives of the plaintiff class as well as
each of the individual plaintiffs. During those
detentions the plaintiffs experienced human rights
violations including, but not limited to the following:
1. Beatings while blindfolded by punching, kicking
and hitting with the butts of rifles;
2. The "telephone" where a detainee's ears were
clapped simultaneously, producing a ringing sound
in the head;
3. Insertion of bullets between the fingers of a
detainee and squeezing the hand;
4. The "wet submarine", where a detainee's head
was submerged in a toilet bowl full of excrement;
5. The "water cure", where a cloth was placed over
the detainee's mouth and nose, and water poured
over it producing a drowning sensation;
6. The "dry submarine", where a plastic bag was
placed over the detainee's head producing
suffocation;
7. Use of a detainee's hands for putting out lighted
cigarettes;
8. Use of flat-irons on the soles of a detainee's feet;
9. Forcing a detainee while wet and naked to sit
before an air conditioner often while sitting on a
block of ice;
10. Injection of a clear substance into the body a
detainee believed to be truth serum;
11. Stripping, sexually molesting and raping female
detainees; one male plaintiff testified he was
threatened with rape;
12. Electric shock where one electrode is attached
to the genitals of males or the breast of females and
another electrode to some other part of the body,
usually a finger, and electrical energy produced from
a military field telephone is sent through the body;
13. Russian roulette; and
14. Solitary confinement while handcuffed or tied to
a bed.
All of these forms of torture were used during
"tactical interrogation"[4], attempting to elicit
information from detainees concerning opposition to
the MARCOS government. The more the detainees
resisted, whether purposefully or out of lack of
knowledge, the more serious the torture used.
Eventually, MARCOS, his family and others loyal to
him fled to Hawaii in February of 1986. One month
later, a number of lawsuits were filed, including
those that are the subject of this case.
III. CLASS ACTION
On September 22, 1992, in the liability phase of the
trial, the jury found defendants liable to 10,059
plaintiffs, for the acts of *1464 torture, summary
execution and disappearance. On February 23,
1994 the jury awarded plaintiffs $1.2 billion in
exemplary damages.
In the compensatory damages phase, the class
action plaintiffs presented their case to the jury by
using damages sustained by a random sample of
plaintiffs as representative of damages suffered by
the entire class. After reviewing the deposition of
137 claimants and hearing the live testimony of
several class members who could come to Court,
the Special Master presented a report to the jury
recommending the damages suffered by the 137
claimants, to give the jury a statistically valid
representation of damages suffered by the entire
class. On January 20, 1995, the jury reconvened
and after hearing several representatives of the
class and the testimony of the Special Master found
the defendant liable to the class for over $766 million
in compensatory damages, with individual plaintiff's
awards ranging from $150,000 to $700,000.
The Court held that damages of 137 of the
claimants, presented to the jury in the form of a
report presented by the Special Master, was
representative of damages sustained by the entire
class, and introduction of such report did not offend
due process. Furthermore, the fact that defendants
did not have the opportunity to cross-examine all
class plaintiffs, because only the testimony of 137
claimants was presented in the report, did not violate
defendant's right to a jury trial under the Seventh
Amendment of the United States Constitution.[5]
This opinion will address judgment as to the class
plaintiffs only.
IV. DISCUSSION
A. Issues Presented
All threshold issues in this case have been
previously resolved by the Ninth Circuit.[6] At this
time there are two issues before this Court. The
primary question is whether the use by this Court of
a random sample of plaintiffs, as representative of
the injuries suffered by others in the class, violates
defendant's due process rights. The second
question is whether use of the random sample
violates the defendant's Seventh Amendment right
to a jury trial.
B. Random Sampling
1. Introduction
The ESTATE asserts random sampling is
inappropriate for this case, and each claim should
be individually tried. This Court holds otherwise. The
use of aggregate procedures, with the help of an
expert in the field of inferential statistics, for the
purpose of determining class compensatory
damages is proper.
James Dannemiller, an expert in the field of
inferential statistics and survey sampling for twenty
five years, assisted in this case. He has testified as
an expert in those areas in both state and federal
courts. Mr. Dannemiller formulated a plan so that
only 137 randomly selected claims, of the 9,541
claims found to be valid, would have to be examined
in order to achieve a 95% statistical *1465
confidence level that all claims would fall within the
ambit of the 137 randomly selected claims.[7]
Mr. Dannemiller testified[8] that inferential statistics
is a recognized science which uses mathematical
equations to infer the probability of events occurring
or not occurring. One branch of that science is the
sampling theory, which deals with the selection of
sample sizes sufficient to produce results that can
be applied to a larger population from which the
sample was selected with a specified probability of
error. The formula Dannemiller used in this case is a
well-known statistical tool that is found in Leslie
Kish, Survey Sampling 53 (New York, John Wiley
and Sons 1962) (KISH FORMULA).
Mr. Dannemiller testified under the KISH FORMULA,
137 randomly selected valid claims examined from a
larger population of 9,541 validly submitted claims
by class members would produce a 95% confidence
level. The Court then considered the details of
deposing 137 randomly selected claimants.
This Court appointed a Special Master[9], to
facilitate the taking of depositions of 137 randomly
selected plaintiffs. The Special Master's appointment
had a three-fold purpose: first, he supervised the
taking of the 137 depositions in the Philippines;
second, he served as a court-appointed expert on
damages, under Federal Rule of Evidence 706, to
review the deposition transcripts along with the claim
forms; finally, he made recommendations on
compensatory damages for the 137 claimants as
well as the remaining class members[10] to the jury.
The Special Master's 182 page findings and
recommendations, and the six page addendum
thereto, are attached hereto as Appendix A and
Appendix B, respectively.[*]
The depositions which the Special Master oversaw
were noticed and taken in accordance with the
Federal Rules of Civil Procedure. Although having
notice of the depositions of the 137 class member
sample and the names of the individual class
members, the ESTATE chose not to participate and
did not appear at any of the depositions, which were
taken during October and November of 1994. Nor
did the ESTATE choose to depose any of the 9,541
class members to test the procedure employed by
the Court, or to acquire evidence to refute the
fairness to the defendant of this random selection
process using inferential statistical methodology.
The Special Master was directed by this Court to
review the depositions for the following three
elements: (1) whether the abuse claimed fell within
one of the three definitions, with which the Court
charged the jury at the liability phase of the trial; (2)
whether the Philippine military or paramilitary was
involved in such abuse; and (3) whether the abuse
occurred during the period of September 1972
through February 1986. The claims of all the class
members were filed with the Court and examined by
the Special Master. Each claim was made under
oath. After considering the deposition *1466 of the
137 claimants and the claims filed by each of the
class members, the Special Master prepared the
attached report.
Of the 137 randomly sampled claims, 67 were
torture victims, 52 were execution victims and 18
were disappearance victims.[11] Based upon the
depositions of each of the 137 randomly selected
class member's claims and review of all the claims
of the remaining class members, the Special Master
recommended damages under Philippine,
International, and American law, for each of the
three categories of claims. During the Special
Master's testimony, the Court advised the jury that
they, in determining damages, could accept, modify
or reject the recommendations of the Special
Master.[12] The jury was also instructed that they
could, independently, on the basis of the depositions
of the 137 randomly chosen class members, make
their own judgment as to the individual damages of
the 137 claimants and the aggregate damages
suffered by the class. Copies of the Special Master's
and Court-Appointed Expert's Report and
Addendum thereto were supplied to each member of
the jury. After five days of deliberations, the jury
returned a verdict of over $766 million,
approximately $1 million less than the Special
Master had recommended.
In his report and testimony, the Special Master
made damage determinations for torture victims by
ranking each claim from 1-5, with 5 representing the
worst abuses and suffering. The torture claims were
evaluated based upon Judge Real's decision in
Trajano v. Imee Marcos-Manotoc, aff'd, In re: Estate
of Ferdinand E. Marcos Litigation, 978 F.2d 493 (9th
Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct.
2960, 125 L. Ed. 2d 661 (1993), as part of this
matter, and the following considerations: (1) physical
torture, including what methods were used and/or
abuses were suffered; (2) mental abuse, including
fright and anguish; (3) amount of time torture lasted;
(4) length of detention, if any; (5) physical and/or
mental injuries; (6) victim's age; and (7) actual
losses, including medical bills. Although each claim
of torture could have been but were not totally
unique, as the Court Appointed Expert on damages,
the Special Master, was able to determine that there
were sufficient similarities within a rating category to
recommend a standard damage amount to each
victim within that grouping.
For summary execution and disappearance claims,
whether there was any torture prior to a victim's
death or disappearance weighed into the damages
recommended for these two categories. Applying
Philippine law, loss of earnings in torture claims was
also factored into each of the Special Master's
recommendations. After the aggregate lost earnings
were computed, the result was converted into
American dollars by dividing the figure by twenty-
four, which was the approximate exchange rate, as
of December 1994, between U.S. dollars and
Philippine pesos.
Because there were discrepancies between some
transcripts stating income earned in gross, some in
net, and some giving no amount, serving as the
Court Appointed Expert on damages, the Special
Master, recommended that it was necessary to place
a cap upon lost earnings; $120,000 was the
maximum a claimant could receive. When a witness
did not state the amount of income earned by a
summary execution or disappearance victim, an
average for the victim's occupation was utilized. For
example, when the victim was a farmer, the average
earnings for one harvesting the same crop on the
same amount of land was used. If a person stated
the victim's income in terms of perharvest, and if
there were three harvests per year, for example,
then that victim's earnings would be multiplied by
three. For any victim who did not work, there was no
award given for lost earnings.[13]
For computing the total amount of damages for
summary execution and disappearance victims,
depending on the individual facts, there were
different variables which went into the equation: (1)
torture prior to death or disappearance; (2) the
actual killing *1467 or disappearance; (3) the victim's
family's mental anguish; and (4) lost earnings,
calculated in the above described manner.
2. Precedent
The utilization of random sampling was fully
examined in Cimino v. Raymark Industries, Inc., 751
F. Supp. 649 (E.D.Tex.1990), an asbestos class
action. There, Chief Judge Robert M. Parker of the
Eastern District of Texas allowed the use of
inferential statistics in determining the amount of
damages to award each class plaintiff. The 2,298
class members were divided into five categories
based on the plaintiff's individual claims. The Court
then selected a random sampling from each disease
category created by the asbestos and the damages
attributed to each sample category was then
presented to the jury. Each plaintiff who was a
member of the random sampling was awarded his
individual verdict and the average verdict for each
disease category constituted the damage awarded
for each non-sampled class member.
As in Cimino, here class members were divided into
three categoriestorture, summary execution and
disappearancebased upon a plaintiff's claims. The
court next selected a random sampling from the
population of 9,541 plaintiffs. Each plaintiff who was
in the random sampling category and was found to
have a valid claim was awarded his or her individual
verdict. The average verdict for each category was
the amount awarded to the class members who
were not in the sample class.
3. Due Process
In a case such as this one, where there are 9,541
class members, most of whom live in other areas of
the world, a balancing of interests must occur to
obtain justice to the parties. A due process analysis
must weigh defendant's claim to the right to trial in
each individual case against judicial economy and
manageability by use of a valid statistical procedure.
The Court in Cimino, rejected defendants argument
that they were entitled to a one-on-one trial for each
of the 2,298 cases. The Court held due process is
not necessarily limited to the traditional sense as
argued by defendants, "but should also encompass
the impact on plaintiffs and even the obvious
societal interests involved." Id. at 666. The Court in
that case was concerned that a one-on-one trial for
each case, assuming the Court could close thirty
cases a month, would take six and one-half
years.[14]
This Court was moved by the same concerns as
Chief Judge Parker in Cimino. Here, individual trials
for each of the 9,541 plaintiffs would take decades.
Most of that time would be wasted since the nature
of the injuries would be similar, if not identical, the
testimony would be largely duplicative. Utilizing the
procedure employed by the Court the injuries could
be accurately categorized, and the source of the
injuries would be identical.
This Court believes individual testimony from each of
the plaintiffs, i.e., testimony of all 9,541 plaintiffs,
could well have been repetitive. Although the facts in
this case are not identical to those in Cimino, the
damages here are much more objective, i.e., the
torture, summary execution and disappearance
come from the same source with the same objective.
Inferential statistics with random sampling produces
an acceptable due process solution to the
troublesome area of mass tort litigation.
The issue remains whether this Court's use of
inferential statistics in using aggregate procedures,
denied defendant's their constitutional due process
right to a one-on-one trial. This Court believes, "the
aggregate trial is, in some vital respects, superior to
the individual trial"[15] and does not violate the
substantive or procedural due process rights of
either the plaintiffs or the defendant.
This Court finds persuasive the analysis of
Professors Saks and Blanck in their discussion[16]
that aggregate trials do not violate *1468 due
process. In Mathews v. Eldridge, 424 U.S. 319, 96
S. Ct. 893, 47 L. Ed. 2d 18 (1976) the Supreme
Court identified three factors to be balanced by the
judge in determining what kind of process is due.
The three factors to be balanced are: (1) the private
interest affected, (2) the risk of erroneous
deprivation of the interest through the procedures
used, and (3) the government's interest, including all
fiscal and administrative burdens that the additional
procedure would require.
The use of random samples in aggregate
procedures meets every requirement of the Mathews
standard.[17] Under the first prong of Mathews,
since liability was established in Phase I of the trial,
the private interest affected is the harm done to
plaintiffs by MARCOS and what damages defendant
would be required to pay plaintiffs for their injuries. It
is probable the judgment against the ESTATE, had
this Court allowed one-on-one trials, would be
significantly more than the judgment the jury
returned in the aggregate procedure.[18] Nor were
amounts awarded nearly as high as the amounts
awarded in other "bipolar" human rights litigation.
See, e.g., Filartiga v. Pena-Irala, 577 F. Supp. 860
(E.D.N.Y.1984) (over $10 million for a single
summary execution); see Estate of Ferdinand E.
Marcos Litigation, 978 F.2d 493 (9th Cir.1992) (over
$4 million for a single summary execution), aff'g
Trajano v. Imee Marcos-Manotoc. It is therefore
evident that one-on-one trials would produce
substantially higher verdicts than those returned in
the aggregate.
The second prong of the Mathews test involves the
erroneous deprivation of defendants rights through
the procedures used, i.e., aggregated trials. With
aggregate trials, the only issue decided is damages;
liability is determined subject to objections and
appeals; and liability is tried before the jury. Thus
there is little risk of erroneous deprivation of
defendants interest through the procedures used. In
this case there can be no erroneous deprivation of
the ESTATE's interest, which is to pay as little in
damages as possible. There is no proof that the
ESTATE would pay less had damages been
determined on a bipolar basis. In fact, as stated
above it appears that had such a procedure been
utilized, each claim would have brought a higher
judgment against the ESTATE.
Finally, aggregate trials are consistent with the third
prong of the Mathews test. Clearly it cannot be
questioned that a one-on-one trial is more
burdensome for the Court than an aggregate trial.
The costs involved in conducting bipolar trials with
9,541 plaintiffs in this case would substantially
surpass the costs of an aggregate trial which lasted
only about one and one-half weeks. The judicial and
administrative time and costs of holding bipolar trials
would also have been virtually, if not absolutely,
prohibitive. Lastly, because class members are
mostly impecunious, the cost of bringing them to the
forum or even taking their depositions would have
prevented their claims from ever being
determined.[19] Moreover the whole jurisprudence
of class action treatment of numerous claims
supports the conclusion that the ESTATE has
suffered no due process violation.
4. Seventh Amendment
The issue here is whether the use of random
samples, in an aggregate trial, violates the Seventh
Amendment right to a jury trial. The Seventh
Amendment "was designed to preserve the basic
institution of jury trial in only its most fundamental
elements, not the great mass of procedural forms
and details, varying even then so widely among
common-law jurisdictions."[20] The Seventh
Amendment provides no formula for the procedures
to be used in a trial by jury. Rather, it is the rules of
evidence and procedure that impact jury trials.
Pragmatic application of these rules, consistent with
justice, is all that is necessary for the presentation
*1469 of the facts necessary for a jury
determination. To claim otherwise certainly raises
form over substance to a new level in today's
jurisprudential world.
Here, the jury did determine the facts of the case, as
the substance of the action was presented to the
jury. There would be no benefit to either side in
having the entire class testify given the repetition in
the claims. Rule 23 of the Federal Rule of Civil
Procedure does not mandate the presence of each
member of the class. Therefore, by choosing a
random sample of 137 claimants in an aggregate
trial, neither side was deprived of even the form of
their right to a jury trial.
In recent years, both complexity of cases and the
concern of the length of trials have been the bases
upon which several courts have refused jury trial
demands.[21] This Court did not go that far.
Defendant was given its day in court with the jury, by
procedures facilitating the presentation of evidence
by use of random sampling in an aggregate damage
trial.
function of the Judiciary and the National Executive
in ordering our relationships with other members of
the international community must be treated
exclusively as an aspect of federal law."); National
Audubon Society v. Dept. of Water, 858 F.2d 1409
(9th Cir.1988); First National City Bank v. Banco
Para, 462 U.S. 611, 103 S. Ct. 2591, 77 L. Ed. 2d 46
(1983).
Therefore, the aggregation of compensatory
damage claims is appropriate under federal common
law for human rights claims.

C. Federal Common Law

Because plaintiffs in this action are citizens of the
Philippines who are complaining of human rights
abuses which occurred in that country, this case
arises under two statutes the Alien Tort Statute, 28
U.S.C. § 1350, and the newly enacted Tort Victim
Protection Act ("TVPA") of 1991 (codified in the note
to 28 U.S.C. § 1350). The Alien Tort Statute does
not address damages; the TVPA only provides that
an individual who abuses others under color of law
of a foreign country is subject to liability for
damages. Virtually all of the nations of the world,
including the United States and the Philippines, are
in agreement that human rights victims should have
enforceable rights to fair and adequate
compensation.[22] Therefore, the issue of damages
is one of federal law.
V. CONCLUSION
The use of an aggregate procedure for determining
compensatory damages, under the procedures
followed in this litigation, was neither a violation of
the parties' due process rights nor their right to a jury
trial under the Seventh Amendment. The
aggregation of compensatory damage claims
vindicates important federal and international
policies, permits justice to be done without unduly
clogging the court system, and was shown to be fair
to the defendant.
Judgment shall be entered for plaintiffs.

Because Congress in the TVPA offered no

methodology as to how damages should be
determined, federal courts are free to and should
create federal common law to provide justice for any
injury contemplated by the Alien Tort Statute and the
TVPA or treaties dealing with the protection of
human rights. See Textile Workers Union of America
v. Lincoln Mills of Alabama, 353 U.S. 448, 457, 77 S.
Ct. 912, 918, 1 L. Ed. 2d 972 (1957) ("Some
[problems] will lack express statutory sanction but
will be solved by looking at the policy of the
legislation and fashioning a remedy that will
effectuate that policy."); Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 425, 84 S. Ct. 923, 939,
11 L. Ed. 2d 804 (1964) ("... an issue concerned with
a basic choice regarding the competence and
The Chorzow Factory Case (1928, Germany v involves a duty to make reparation. Reparation is the
Poland) Principle: expendable complement of a failure to apply a
convention and there is no necessity for this to be
It is a general principle of law as well as stated in the convention itself. This case is one of an
International law, that any breach of agreement unlawful expropriation and in such cases
creates an obligation to make reparation. expropriating sates must in addition to paying the
compensation due in respect of lawful expropriation,
Fact:
pay also damages for any loss continued by the
There was an agreement between Germany and injured party.
Poland and that bilateral treaty was known as the
Geneva Upper Silesia convention 1922. It had been
provided in that treaty that on transfer of sovereignty
of certain territories from Germany to Poland after
the 1st world war, existing proprietary right were to
be maintained except that the Polish Government
was granted a right of expropriation under certain
condition with respects of all property belonging to
German nationals in Upper Silesia. The present
dispute arose when Poland seized to companies
there in breach of its international obligation under
the Upper Silesia convention of 1922. The Germany
demanded compensation from the Poland.

Issues:

Whether a state can be held responsible for

expropriation of alien property. Whether a state can
be made responsible at International Law, for acts of
Government organs or officers Whether it is a basic
rule of international law that reparation is to be made
for violations of international law

Decision:

The reparation of wrong may consist in an

indemnity corresponding to the damage which is
contrary of International Law. Right or interests of an
individual the violation of which rights cause
damages are always in a different plain to rights
belonging to a state, which rights may also be
infringed by the same act.

Reasoning:

The action of Poland was not expropriation in its

real sense, it was rather a seizure of property, right
and interest which could not be expropriated even
against compensation, save under the special
conditions fixed by Art. 7 of the Upper Silesia
convention of 1922. in doing so, therefore, Poland
acted contrary to its obligations. It is general
principle of international law and even a general
concept of law that a breach of an agreement
CORFU CHANNEL CASE

Brief Fact Summary. The fact that the Albanian (P)

authorities did not make the presence of mines in its
waters was the basis of the United Kingdom (D)
claim against them.

Synopsis of Rule of Law. International obligations in

peace time are created through elementary
consideration.

Facts. The explosion of mines in the Albanian (P)

waters resulted in the death of a British naval
personnel. It was on this basis that the United
Kingdom (D) claimed that Albania (P) was
internationally responsible for damages.

Issue. Are international obligations in time of peace

created through elementary consideration?

Held. Yes. International obligations in peace time

are created through elementary consideration. Every
state has an obligation not to knowingly allow its
territory to be used for acts contrary to the rights of
other states.

Discussion. In this case, the Court found that the

Hague Convention of 1907 could not be applied but
the Convention was applicable only in time of war. It
was on the basis of the principle of freedom of
maritime communication that this case was decided.
BARCELONA TRACTION
INTRODUCTION
Proceedings in the case concerning the Barcelona
Traction, Light and Power Company, Limited
(Belgium v. Spain) were instituted by an Application
of 19 June 1962 in which the Belgian Government
sought reparation for damage claimed to have been
caused to Belgian nationals, shareholders in the
Canadian Barcelona Traction Company, by the
conduct of various organs of the Spanish State.
There are certain very important principles of
international law which emerged out of this case.
In the first phase (24th July 1964) of the judgement
The Spanish Government raised four Preliminary
Objections and the Court rejected the first
preliminary objection and the secondary objection
and added the third and fourth objections to the
merits.
In the second phase (5th February 1970) of the
judgement, The Court found that Belgium lacked jus
standi to exercise diplomatic protection of
shareholders in a Canadian company with respect to
measures taken against that company in Spain. In
its judgment in the second phase of the case the
Court rejected Belgium’s claim by fifteen votes to
one.
FACTS
The Barcelona Traction, Light and Power Company,
Limited, was incorporated in 1911 in Toronto
(Canada), where it has its head office. For the
purpose of creating and developing an electric
power production and distribution system in
Catalonia (Spain) it formed a number of subsidiary
companies, of which some had their registered
offices in Canada and the others in Spain. In 1936
the subsidiary companies supplied the major part of
Catalonia’s electricity requirements. According to the
Belgian Government some years after the first world
war Barcelona Traction’s share capital came to be
very largely held by Belgian nationals but this
contention was denied by the Spanish Government.
Barcelona Traction issued several series of bonds,
principally in sterling. The sterling bonds were
serviced out of transfers to Barcelona Traction
effected by the subsidiary companies operating in
Spain. In 1936 the servicing of the Barcelona
traction bonds was suspended on account of the
Spanish civil war. After that war the Spanish
exchange control authorities refused to authorize the
transfer of the foreign currency necessary for the
resumption of the servicing of the sterling bonds.
Subsequently, when the Belgian Government
complained of this, the Spanish Government stated
that the transfers could not be authorized unless it
,were shown that the foreign currency was to be
used to repay debts arising from the genuine
importation of foreign capital into Spain, and that this
had not been established
In 1948 three Spanish holders of recently acquired
Barcelona Traction sterling bonds petitioned that
court of Reus (Province of Tarragona) for a
declaration adjudging the company bankrupt, on
account of failure to pay the interest on the bonds.
On 12 February 1948 a judgment was given
declaring the company bankrupt and ordering the
seizure of the assets of Barcelona Traction and of
two of its subsidiary companies
Pursuant to this judgment the principal management
personnel of the two companies were dismissed and
Spanish directors appointed. Shortly afterwards,
these measures were extended to the other
subsidiary companies. New shares of the subsidiary
companies were created, which were sold by public
auction in 1952 to a newly-formed company,
Fuerzas Electricas ~de Cataluina, S.A. (Fecsa),
which thereupon acquired complete control of the
undertaking in Spain.
Proceedings were brought without success in the
Spanish courts by various companies or persons.
According to the Spanish Government, 2,736 orders
were made in the case and 494 judgments given by
lower and 37 by higher courts before it was
submitted to the International Court of Justice. The
Court found that in 1948 Barcelona Traction, which
had not received a judicial notice of the bankruptcy
proceedings, and was not represented before the
Reus court, took no proceedings in the Spanish
courts until 18 June and thus did not enter a plea of
opposition against the bankruptcy judgment within
the time-limit of eight days from the date of
publication of the judgment laid down in Spanish
legislation. The Belgian Government contends,
however, that the notification and publication did not
comply with the relevant legal requirements and that
the eight-day time-limit never began to run.
Representations were made to the Spanish
Government by the British, Canadian, United States
and Belgian Governments as from 19481 or 1949.
The interposition of the Canadian Government
ceased entirely in 1955.
PRELIMINARY OBJECTIONS (FIRST PHASE OF
THE JUDGMENT)
The Belgian Government filed a first Application with
the Court against the Spanish Government in 1958.
In 1961 it gave notice of discontinuance of the
proceedings, with a view to negotiations between
the representatives of the private interests
concerned, and the case was removed from the
Court’s General List. The negotiations having failed,
the Belgian Government on 19 June 1962 submitted
to the Court a new Application. In 1963 the Spanish
Government raised four preliminary objections to this
Application. In its first Preliminary Objection, which
was rejected, the Respondent contended that this
discontinuance precluded the Applicant from
bringing the present proceedings. The secondary
preliminary objection which was also rejected was
regarding the lapse of Article 17(4) of the treaty of
1927 on dissolution of the permanent court to which
the Article referred thus questioning the jurisdiction
of the ICJ over the case. The third preliminary
objection which was joined to the merits of the
Spanish Government, was to the effect that the
Belgian Government lacked capacity to submit any
claim in respect of wrongs done to a Canadian
company, even if the shareholders were Belgian.
The fourth preliminary objection, which was also
joined to the merits, was to the effect that local
remedies available in Spain had not been
exhausted.
ISSUES
The researcher will be dealing with the issues that
arose out of the second phase of the judgement
1. Does Belgium have the Jus standi to exercise
diplomatic protection of shareholders in a Canadian
company?
2. Does Belgium have the right and jurisdiction to
bring Spain to court for the actions of a Canadian
company?
GENERAL PRINCIPLES
NO ABSOLUTE OBLIGATION
The Court observed that when a State admitted into
its territory foreign investments or foreign nationals it
was bound to extend to them the protection of the
law and assumed obligations concerning the
treatment to be afforded them. But such obligations
were not absolute. In order to bring a claim in
respect of the breach of such an obligation, a State
must first establish its right to do so.
MUNICIPAL LAWS
( DISTINCTION BETWEEN A COMPANY AND
SHAREHOLDERS)
In the field of diplomatic protection, international law
was in continuous evolution and was called upon to
recognize institutions of municipal law. In municipal
law, the concept of the company was founded on a
firm distinction between the rights of the company
and those of the shareholder. Only the company,
which was endowed with legal personality, could
take action in respect of matters that were of a
corporate character. A wrong done to the company
frequently caused prejudice to its shareholders, but
this did not imply that both were entitled to claim
compensation. Whenever a shareholder’s interests
were harmed by an act done to the company, it was
to the latter that he had to look to institute
appropriate action. An act infringing only the
company’s rights did not involve responsibility
towards the shareholders, even if their interests
were affected. International law had to refer to those
rules generally accepted by municipal legal systems.
An injury to the shareholder’s interests resulting from
an injury to the rights of the company was
insufficient to found a claim.
DIPLOMATIC PROTECTION ONLY EXERCISED
BY NATION STATE OF COMPANY
Where it was a question of an unlawful act
committed against a company representing foreign
capital, the general rule of international law
authorized the national State of the company alone
to exercise diplomatic protection for the purpose of
seeking redress. No rule of international law
expressly conferred such a right on the
shareholder’s national State.
SPECIAL CIRCUMSTANCES (EXCEPTIONS TO
THE GENERAL PRINCIPLES)
The Court considered whether there might not be, in
the present case, special circumstances for which
the general rule might not take effect.
Two situations needed to be studied:
(a) the case of the company having ceased to exist,
and
(b) the case of the protecting State of the company
lacking capacity to take action.
As regards the first of these possibilities, the Court
observed that whilst Barcelona Traction had lost all
its assets in Spain and been placed in receivership
in Canada, it could not be contended that the
corporate entity of the company had ceased to exist
or that it had lost its capacity to take corporate
action.
So far as the second possibility was concerned, it
was not disputed that the company had been
incorporated in Canada and had its registered office
in that country, and its Canadian nationality had
received general recognition. The Canadian
Government had exercised the protection of
Barcelona Traction for a number of years. If at a
certain point the Canadian Government ceased to
act on behalf of Barcelona Traction, it nonetheless
retained its capacity to do so, which the Spanish
Government had not questioned. Whatever the
reasons for the Canadian Government’s change of
attitude, that fact could not constitute a justification
for the exercise of diplomatic protection by another
government.
It had been maintained that a State could make a
claim when investments by its nationals abroad,
such investments being part of a State’s national
economic resources, were prejudicially affected in
violation of the right of the State itself to have its
nationals enjoy a certain treatment. But, in the
present state of affairs, such a right could only result
from a treaty or special agreement. And no treaty or
special agreement of such a kind was in force
between Belgium and Spain.
If we consider reasons of equity, a State should be
able to take up the protection of its nationals,
shareholders in a company which had been the
victim of a violation of international law. The Court
considered that the adoption of the theory of
diplomatic protection of shareholders as such would
open the door to competing claims on the part of
different States, which could create an atmosphere
of insecurity in international economic relations. In
the particular circumstances of the present case,
where the company’s national State was able to act,
the Court was not of the opinion that jus standi was
conferred on the Belgian Government by
considerations of equity.
JUDGEMENT
The Court took cognizance of the great amount of
documentary and other evidence submitted by the
Parties and fully appreciated the importance of the
legal problems raised by the allegation which was at
the root of the Belgian claim and which concerned
denials of justice allegedly committed by organs of
the Spanish State. However, the possession by the
Belgian Government of a right of protection was a
prerequisite for the examination of such problems.
Since no jus standi before the Court had been
established, it was not for the Court to pronounce
upon any other aspect of the case.
Accordingly, the Court rejected the Belgian
Government’s claim by 15 votes to 1, 12 votes of the
majority being based on the reasons set out above.
CONCLUSION
The court’s ruling of dismissal of the case
adequately demonstrates the differences between
states and individuals and who is considered
sovereign in the international realm. The court ruled
in favour of Spain since Belgium had no jurisdiction
to do so and the shareholders seeking
compensation was not given diplomatic immunity.
However, if the shareholders were to seek aid from
Canada in which the company is headquartered and
given correct identity with, a law suit could occur.
Thus an individual cannot bring a claim against a
state since it is not given that authority. This case
will be viewed as an excellent reference for cases
dealing with organizations and sovereign immunity
claims and how to correctly deal with them
SOUTH WEST AFRICA
Facts
After WWII, the Union of South Africa, alleging that
the Mandate it had been given by the League of
Nations to administer South West Africa had lapsed,
sought the recognition of the United Nations to the
integration of the Territory in the Union. The UN
General Assembly asked the Court to advise on the
international status of South West Africa (now
Namibia). The Court was asked to determine the
meaning of the “sacred trust of civilization” accepted
by South Africa under the Mandate.
entrusted to some responsible person as a trustee;
the trust has been used to protect the weak and the
dependent.
There are three general principles which are
common to all these institutions:
1. the control of the trustee over the property is
limited in one way or another; he is not in the
position of the normal complete owner, who
can do what he likes with his own, as he is
precluded from administering the property for
his own personal benefit;

Issue 2. the trustee is under some kind of legal

1. What is the status of the relationship between
South West Africa and South Africa?
Decision
South West Africa is a territory under the Mandate
and South Africa is not competent to modify the
international status of South West Africa.
Reasons
McNair, in a separate opinion, set out how the Court
finds and applies general principles of law. Article
38(I)(c) allows the Court to apply “the general
principles of law recognized by civilized nations.”
obligation, based on confidence and
conscience, to carry out the trust or mission
confided to him for the benefit of some other
person or for some public purposes; and
3. any attempt by one of these persons to
absorb the property entrusted to him into his
own patrimony would be illegal and would be
prevented by the law.
As a result, it would be in violation of the trust to
absorb South West Africa into South Africa.
Ratio
Demonstrative of the process by which principles of

This is done by regarding any features or private, municipal law can be brought into

terminology which are reminiscent of the rules and international law.

institutions of private law as an indication of policy

and principles rather than as directly importing these
rules and institutions.

Applying this to the case at bar, the Court was

tasked with interpreting "sacred trust of civilization”.
The historical basis of the legal enforcement of the
English trust was that it was binding upon the
conscience of the trustee and thus should be
enforceable in law. Nearly every legal system
possesses some institution whereby the property
and sometimes the person of those who are not sui
juris, such as a minor or disabled person, can be