ASSIGNMENT SHEET 1

1. United Nations Charter

2. Statute of the International Court of Justice

3. U.N. Declaration of Human Rights

4. Kuroda v. Jalandoni, G.R. No. L-2662 (March 26, 1949)

5. Mejoff v. Director of Prisons, G.R. No. L-4254 (September 26, 1951)

6. North Sea Continental Shelf Cases, [1969] ICJ Rep.

7. Nicaragua v. United States, [1986] ICJ Rep.

8. Fisheries Jurisdiction Case (United Kingdom v. Iceland), [1973] ICJ Rep.

Facts: On 11 March 1961, United Kingdom and Iceland agreed on a treaty whereby the United Kingdom would honor
the 12-mile exclusive fishery zone of Iceland. Provided, that future disputes in relation to such extension would be
referred to the International Court of Jus tice.

In 1971, Icelandic Government announced that the 1961 agreement would be terminated and the limit of the
exclusive Icelandic fisheries jurisdiction would be extended to 50 miles. United Kingdom was formally notified of this
development by the Icelandic Government. In reply, United Kingdom emphasized that Iceland cannot unilaterally
terminate their agreement. Further, such claim by Iceland would not have an international basis.

In 1972, New regulations were introduced whereby Iceland’s fishery limit wo uld be extended to 50 miles and all
fishing activities by foreign vessels inside those limits would be prohibited.

Issue: Whether or not Iceland could validly extend the fishery limit from 12 miles to 50 miles.

Ruling: No.

In the 1960 Geneva Convention, th ere arose 2 principles that crystallized as a customary law. First, that of a fishery
zone, between territorial se and the high seas, within which the coastal State could claim exclusive fisheries
jurisdiction – it now being generally accepted that that z one could extend to the 12 mile limit; and second, the
concept, in respect of waters adjacent to the zone of exclusive fishing rights, of preferential fishing rights in favor
of the coastal State in a situation of special dependence in its fisheries.

In the case at bar, the 12-mile fishery zone of Iceland is not in dispute. United Kingdom recognizes that fact. However,
the very notion of preferential fishery rights for the coastal State in a situation of special dependence, though it
implied a certain priority, could not imply the extinction of the concurrent rights of other States. The fact that Iceland
was entitled to claim preferential rights did not suffice to justify its claim unilaterally to exclude British fishing vessel s
from all fishing beyond the 12 miles agreed to in 1961.

United Kingdom also brought to the attention of the court that It has been fishing in that zone for centuries and has
continued to do so in the same manner as it has previously done. The economic dependence and livelihood would be
seriously affected if the prohibition of Iceland were to happen.

In order to have an equitable resolution, it is necessary to take in consideration the preferential fishing rights of
Iceland and the traditional fishing rights of United Kingdom. Iceland is not allowed to unilaterally exclude United
Kingdom fishing vessels from the disputed areas, and on the other hand, United Kingdom must honor the preferential
right of Iceland regarding the said area.

The most appropriate method for the solution is to ne gotiate with a view to delimiting the light and interests of the
Parties and regulating equitably such questions as those catch -limitation, share allocations and related restrictions.

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For these reasons, the ICJ:

(1) found that the Icelandic Regulations of 1972 constituting a unilateral extension of the exclusive fishing rights of
Iceland to 50 nautical miles from the baselines are not opposable to the United Kingdom;

(2) found that Iceland is not entitled unilaterally to exclude United Kingdom fishing ves sels from areas between the
12-mile and 50-mile limits, or unilaterally to impose restrictions on their activities in such areas;

(3) held that Iceland and the United Kingdom are under mutual obligations to undertake negotiations in good faith
for an equitable solution of their differences;

(4) indicated certain factors which are to be taken into account in these negotiations (preferential rights of Iceland,
established rights of the United Kingdom, interests of other States, conservation of fishery resou rces, joint
examination of measures required).

9. Namibia Case, [1971] ICJ Rep.

FACTS:

The General Assembly adopted resolution 2145 on the termination of the Mandate for South West Africa and that
South Africa had no other right to administer the Territory. In the preamble the General Assembly declares itself
"Convinced that the administration of the Mandated Territory by South Africa has been conducted in a manner
contrary" to the two basic international instruments directly imposing obligations upon South Africa, the Mandate
and the Charter of the United Nations, as well as to the Universal Declaration of Human Rights. In paragraph 3 of the
operative part of the resolution the General Assembly "Declares that South Africa has failed to fulfil its obligations
in respect of the administration of the Mandated Territory and to ensure the moral an d material well-being and
security of the indigenous inhabitants of South West Africa and has, in fact, disavowed the Mandate.

The General Assembly, however, lacked the necessary powers to ensure the withdrawal of South Africa from the
Territory, enlisted the co-operation of the Security Council. The Security Council called upon South Africa to withdraw
its administration from the Territory. After condemning the non -compliance by South Africa with General Assembly
and Security Council resolutions pertaini ng to Namibia, the Security Council declared that "the continued presence
of the South African authorities in Namibia is illegal.

In Resolution 269 (1969)

1. The Security Council declared that the actions of the Government of South Africa designed to destroy the
national unity and territorial integrity of Namibia through the establishment of Bantustans are contrary to
the provisions of the United Nations Charter.

2. The Security Council decided "that the continued occupation of the territory of Namibia by the So uth African
authorities constitutes an aggressive encroachment on the authority of the United Nations, . . .". In operative
paragraph 3 of resolution 276 (1970) the Security Council declared further "that the defiant attitude of the
Government of South Africa towards the Council's decisions undermines the authority of the United Nations".

The Government of France in its written statement and the Government of South Africa throughout the present
proceedings have raised the objection that the General Assembly , in adopting resolution 2145 (XXI), acted ultra vires.
It contended that the Covenant of the League of Nations did not confer on the Council of the League power to
terminate a man- date for misconduct of the mandatory and that no such power could therefo re be exercised by the
United Nations, since it could not derive from the League greater powers than the latter itself had.

ISSUE: Whether or not the General Assembly acted ultra vires

HELD:
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No. In examining this action of the General Assembly it is approp riate to have regard to the general principles of
international law regulating termination of a treaty relationship on account of breach. For even if the mandate is
viewed as having the character of an institution, as is maintained, it depends on those int ernational agreements
which created the system and regulated its application. As the Court indicated in 1962 "this Mandate, like practically
all other similar Mandates" was "a special type of instrument composite in nature and instituting a novel inter -
national régime. It incorporates a definite agreement . . ." (I.C.J. Reports 1962, p. 331). The Court stated conclusively
in that Judgment that the Mandate ". . . in fact and in law, is an international agreement having the character of a
treaty or convention" (I.C.J. Reports 1962, p. 330). The rules laid down by the Vienna Convention on the Law of
Treaties concerning termination of a treaty relationship on account of breach (adopted without a dissenting vote)
may in many respects be considered as a codificat ion of existing customary law on the subject. In the light of these
rules, only a material breach of a treaty justifies termination , such breach being defined as:

"(a) a repudiation of the treaty not sanctioned by the present Convention; or

(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty"

General Assembly resolution 2145 (XXI) determines that both forms of material breach had occurred in this case. By
stressing that South Africa "has, in fact, disavowed the Mandate", the General Assembly declared in fact that it had
repudiated it. The resolution in question is therefore to be viewed as the exercise of the right to terminate a
relationship in case of a deliberate and persistent violation of obligations which destroys the very object and purpose
of that relationship

In its Advisory Opinion of 21 June 1971, the Court found that the continued presence of South Africa in Namibia was
illegal and that South Africa was under an obligation to with draw its administration immediately. It found that States
Members of the United Nations were under an obligation to recognize the illegality of South Africa’s presence in
Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to ref rain from any acts implying
recognition of the legality of, or lending support or assistance to, such presence and administration. Finally, it stated
that it was incumbent upon States which were not Members of the United Nations to give assistance in the a ction
which had been taken by the United Nations with regard to Namibia.

10. Danube Dam Case (Hungary v. Slovakia), 37 ILM 162 (1998)

Gabčikovo-Nagymaros Project (Hungary / Slovakia)

Facts:

On 16 September 1977, by the Hungarian People's Republic and the Czechoslovak People's Republic entered into a
treaty (Budapest Treaty of 1977) concerning the construction and operation of the Gabcíkovo-Nagymaros system of
locks in order to further the utilization of the natural resources of the Bratislava -Budapest section of the Danube
river. A “PROTOCOL OF AGREEMENT” was signed by the parties. The project was essentially aimed at the production
of hydroelectricity, the improvement of navigation on the relevant section of the Danube and the protection of the
areas along the banks against flooding. It provided for the building of two series of locks, one at Gabcíkovo (in
Czechoslovak territory) and the other at Nagymaros (in Hungarian territory), to constitute a single and indivisible
operational system of works.

As a result of intense criticism which the project had generated in Hungary, the Hungarian Government decided on
13 May 1989 to suspend the works at Nagymaros pending the completion of various studies. In October 1989, Hungary
decided to not continue the work any further.

During this period, negotiations took place between the parties. Czechoslovakia also started investigating alternative
solutions. One of them, an alternative solution subsequently known as " Variant C", entailed a unilateral diversion of
the Danube by Czechoslovakia on its territory. On 23 July 1991, the Slovak Government decided to begin construction
to put the Gabcíkovo Project into operation by the above -mentioned alternative solution.

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On 19 May 1992, the Hungarian Government transmitted to the C zechoslovak Government a note verbale unilaterally
terminating the 1977 Treaty with effect from 25 May 1992. On 15 October 1992, Czechoslovakia began work to enable
the Danube to be closed and, starting on 23 October, proceeded to the damming of the river, before Slovakia became
an independent State on 1 January 1993.

Slovakia and Hungary then concluded in April 1993 a compromise, inter alia requesting the Court to decide whether
the Republic of Hungary had been entitled to suspend and subsequently abandon, in 1989, the works on the project.

ISSUES:

1. Whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works on
the Nagymaros project and on that part of the Gabčíkovo project for which the Treaty attributed responsib ility to the
Republic of Hungary

2. Whether the Czech and Slovak Federal Republic was entitled to proceed, in November 1991, to the
“provisional solution” and to put into operation from October 1992 this system (the damming up of the Danube at
river kilometre 1,851.7 on Czechoslovak territory and the resulting consequences for the water and navigation course)

3. What were the legal effects of the notification, on 19 May 1992, of the termination of the Treaty by the
Republic of Hungary. The Court was also requested to determine the legal consequences, including the rights and
obligations for the Parties, arising from its Judgment on the above -mentioned questions. Each of the Parties filed a
Memorial, a Counter Memorial and a Reply accompanied by a large num ber of annexes.

RULING:

1. NO. The Court asserted that Hungary was not entitled to suspend and subsequently abandon in 1989, the
works on the Nagymaros project and on the part of the Gabčíkovo project for which it was responsible, and that
Czechoslovakia was entitled to proceed, in November 1991, to the “provisional solution” as described by the terms
of the Special Agreement but not the “Variable C” that they subsequently decided upon.

2. NO. The Court stated that Czechoslovakia was not entitled to put into operation, from October 1992, the
barrage system in question and that Slovakia, as successor to Czechoslovakia, had become Party to the Treaty of 16
September 1977 as from 1 January 1993. The Court also decided that Hungary and Slovakia must negotiate in good
faith in the light of the prevailing situation and must take all necessary measures to ensure the achievement of the
objectives of the said Treaty, in accordance with such modalities as they might agree upon.

While reiterating that Czechoslovakia had violated the treaty when it diverted the waters of the Danube, the Court
found that it had not yet done so when constructing the works which eventually led to the putting into operation of
Variant C. In the Court's view, therefore, the notification of termination by Hungary on 19 May 1992 had been
premature and Hungary had thus not been entitled to invoke any such breach of the treaty as a ground for terminating
it when it did.

3. The Court observed that the 1977 Treaty was still in force and consequen tly primarily governed the
relationship between the Parties. Taking into account the fact, however, that the Treaty had not been fully
implemented by either party for years, it considered that the factual situation as it had developed since 1989 was to
be placed within the context of the preserved and developing treaty relationship, in order to achieve its object and
purpose in so far as that is feasible.

In its judgment of 25 September 1997, the Court started by taking the view that in many respects the pr ovisions of
the Vienna Convention concerning the termination and the suspension of the operation of treaties, set forth in its
Articles 60 to 62, are to be considered as a codification of customary international law. It then found that in
suspending and subsequently abandoning the works for which it was still responsible Hungary had expressed its
unwillingness to comply with at least some of the provisions of the Treaty of 1977, the effect of which was to render
impossible the accomplishment of the system o f works that the Treaty expressly described as single and indivisible.

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The Court further considered that the state of necessity is a ground recognized by customary international law for
precluding the wrongfulness of an act not in conformity with an intern ational obligation. It also considered,
moreover, that such ground for precluding wrongfulness can only be accepted on an exceptional basis. It
acknowledged that the concerns expressed by Hungary for its natural environment in the region related to an
essential interest, but that the perils invoked by Hungary, without prejudging their possible gravity, were not
sufficiently established in 1989, nor had they been imminent; and that Hungary had had available to it at that time
means of responding to these per ceived perils other than the suspension and abandonment of works with which it
had been entrusted.

The Court also noted that Hungary - when it decided to conclude the 1977 Treaty – had been presumably aware of
the situation as then known; and that the need to ensure the protection of the environment had not escaped the
parties. The Court therefore concluded that, even if it had been established that there was, in 1989, a state of
necessity linked to the performance of the 1977 Treaty, Hungary would not have been permitted to rely upon that
state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped to bring it about.
In the light of the conclusions reached above, the Court found that Hungary had not been entitle d to suspend and
subsequently abandon the works for which it was responsible.

As to the legal effects of the notification of the termination of the Treaty by the Republic of Hungary, the Court
first observed that, even if a state of necessity is found to e xist, it is not a ground for the termination of a treaty
but may be only invoked to exonerate from its responsibility a State which has failed to implement a treaty.

The Court found that the notification of termination by Hungary of 19 May 1992 did not hav e the legal effect of
terminating the 1977 Treaty.

As to the question whether Slovakia had become a party to the 1977 Treaty as a successor State of Czechoslovakia,
the Court referred to the principle that treaties of a territorial character remain unaffec ted by a succession of States,
a principle which, according to the Court, is part of customary international law. The Court accordingly concluded
that the Treaty itself had not been affected by a succession of States and had thus become binding upon Slovak ia on
1 January 1993.

On 3 September 1998, Slovakia filed in the Registry of the Court a request for an additional Judgment in the case.
Slovakia considered such a Judgment necessary because of the unwillingness of Hungary to implement the Judgment
delivered by the Court on 25 September 1997. In its request, Slovakia stated that the Parties had conducted a series
of negotiations of the modalities for executing the 1997 Judgment and had initialled a draft Framework Agreement,
which had been approved by the Slovak Government. However, according to the latter, Hungary had decided to
postpone its approval and had even disavowed it when the new Hungarian Government had come into office. Slovakia
requested the Court to determine the modalities for executing the Ju dgment, and, as the basis for its request, invoked
the Special Agreement signed at Brussels on 7 April 1993 by itself and Hungary. After the filing by Hungary of a
statement of its position on Slovakia’s request, the Parties resumed negotiations and inform ed the Court on a regular
basis of the progress in them.

11. The Tinoco Arbitration (Great Britain v. Costa Rica), 1923

Doctrine: The principle of continuity of states

“Changes in the government or the internal policy of a state do not as a rule affect its position in international
law...The state is bound by engagements entered into by governments that have ceased to exist; the restored
government is generally liable for the acts of the usurper*.”(Dr. John Bassett Moore. Justice -Permanent Court of
International Justice. Quoted from his work: Digest of International Law).

FACTS: In this case, Great Britain entered with the Tinoco Government, a contract known as the "Amory concession",
which contemplated a right granted to Great Britain, 12 years to prospect or cause to prospect territories of 8
provinces of Costa Rica, to find deposits of petroleum, carbon, and allied substances. The concession is now owned

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by Central Costa Rica Petroleum Company of Canada, and all its stock is owned by the British Controlled Oil Fields,
Ltd.

This Tinoco Government actually overthrew the de jure government of Costa Rica and lasted from January 27, 1917 -
September 2, 1919. Eventually, the de jure government of Costa Rica was restored and on August 22, 1922 (*please
see details below), this government passed a law, “Law of Nullities No. 41”, which nullified and invalidated all
contracts made by the Tinoco government and private persons.

Aggrieved, Great Britain submitted this case for arbitration, wherein William H. Taft was the Sole Arbitrator.

Arguments of Great Britain

1. The Tinoco government was the onlygovernment of Costa Rica de facto and de jure for two years and nine
months; that during that time there is no other government disputing its sovereignty, and that it was in peaceful
administration.

2. the succeeding government (i.e. the restored government) could not by legislative decree avoid responsibility
for acts of that government affecting British subjects,or appropriate or confiscate rights and property by that
government except in violation of international law

3. that the Law of Nullities No. 41 pertains to British interests, and because of this, is itself a nullity and to be
disregarded, with the consequence that the contracts validly made with the Tinoco government must be performed
by the present Costa Rican Government, and that the property which has been invaded or the rights nullified must
be restored.

Replies of the Costa Rican Government

1. The Tinoco government cannot be recognized as de facto nor de jure bec ause it did not conform to the
Constitution of the legit Government of Costa Rica.

2. Great Britain is estopped from enforcing the contract because it did not recognize the Tinoco regime.

ISSUE 1: How does a provisional government attain force and effect? Is it material that for a provisional government
to have effect, other states should recognize it first? NO.

TAFT’S DECISION:

Countries that recognized Tinoco were Bolivia, Argentina, Chile, Haiti, Guatemala, Switzerland,the Vatican, and so
on. However, the US did not recognize them perhaps because the US was an ally of Great Britain during the first world
war.

With these circumstances, although recognition by other nations is usually appropriate evidence of national
personality, it loses evidential weight on the issue with which those applying the rules of international law are
concerned (i.e. continuity principle).

ISSUE 2: Can Tinoco’s government be considered a link in the continuity of the Government of Costa Rica? YES.

TAFT'S DECISION: Taft held from the evidence

that the Tinoco government was an actual sovereign government** (criteria: government which establishes itself and
maintains a peaceful administration, with the acquiescence of the people for a substantial period of time).

ISSUE 3: Should Great Britain be estopped from enforcing the contract since it did not recognize the Tinoco
government in its incumbency?

TAFT'S DECISION: NO. The continuity principle prevails.

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*In January, 1917, the Government of Costa Rica, un der President Alfredo Gonzalez, was overthrown by Frederico
Tinoco, the Secretary of War. Gonzalez fled. Tinoco assumed power, called an election, and established a new
constitution in June, 1917. His government continued until August, 1919, when Tinoco re tired, and left the country.
His government fell in September following. After a provisional government under one Barquero, the old constitution
was restored and elections held under it. The restored government is a signatory to this treaty of arbitration.

**Frederico A. Tinoco was Secretary of War under Alfredo Gonzalez, the then President of Costa Rica. On the ground
that Gonzalez was seeking reelection as President in violation of a constitutional limitation, Tinoco used the army
and navy to seize the government, assume the provisional headship of the Republic and become Commander -in-Chief
of the army. Gonzalez took refuge in the American Legation, thence escaping to the United States. Tinoco constituted
a provisional government at once and summoned the p eople to an election for deputies to a constituent assembly on
the first of May, 1917. At the same time he directed an election to take place for the Presidency and himself became
a candidate. An election was held. Some 61,000 votes were cast for Tinoco and 259 for another candidate. Tinoco
then was inaugurated as the President to administer his powers under the former constitution until the creation of
a new one. A new constitution was adopted June 8,1917, supplanting the constitution of 1871. For a full t wo years
Tinoco and the legislative assembly under him peaceably administered the affairs of the Government of Costa Rica,
and there was no disorder of a revolutionary character during that interval. No other government of any kind asserted
power in the country. The courts sat, Congress legislated, and the government was duly administered. Its power was
fully established and peaceably exercised. The people seemed to have accepted Tinoco's government with great good
will when it came in, and to have welcomed the change.

12. Upright v. Mercury Business Machines Co., 1961

FACTS:

- Plaintiff, Walter Upright, an American citizen. He is suing before the US Supreme Court as the assignee for
value and of a trade acceptance drawn on and accepted by defendant, Mercury Business Machines, a New York
corporation.

- Plaintiff sues as the assignee of a trade acceptance drawn on and accepted by defendant Mercury in payment
for business typewriters sold and delivered to it by Polygraph Export GmbH

- Mercury´s counsel had been advised that Polygraph was a ¨state-controlled enterprise of the so-called
German Democratic Republic¨ (GDC)

- Defendant argues that:

- Upright lacked capacity to sue since GDC was not recognized by the United States

- It is an instrumentality of the government

- Upright, as its assignee, has no greater right to maintain the action than his assignor

- Trial court ruled that the defense was valid and upheld the well -established rule that an unrecognized
government could not sue, therefore the assignee of sa id unrecognized government could likewise not sue

ISSUE:

- W/N TC erred in ruling that Upright could not be sue based solely on unrecognition

- W/N the transaction entered into was illegal or violative of public policy

RULING:

- Yes, the TC erred. The “political” decision not to recognize a government does not deprive it of a juridically
cognizable de facto existence. A foreign government, although not recognized by the political arm of the United
States government, may nevertheless have a de facto existenc e which is juridically cognizable. The acts of such a de
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facto government may affect private rights and obligations arising either as a result of activity in, or with persons or
corporations within, the territory controlled by such de facto government. The lack of jural status for such
government or its creature corporation is not determinative of whether transactions with it will be denied
enforcement in American courts, so long as the government is not the suitor. Since nonrecognition itself neither
prevents private transactions nor bars the courts from considering them, such transactions are unenforceable only if
they violate a public policy.

- No. The defendant, however, had not alleged that its transaction with the East German Corporation or the
assignment to Upright of the trade acceptance was illegal or violative of public policy. In order for such transaction
or the assignment to violate national or public policy, it must be shown either to violate our laws or some definite
policy. Indeed, during the argument of the case, it was stated that the typewriters had been shipped openly and
passed regularly through the US Customs. Defendants was obviously hard put to find a policy that forbade suit or
recovery against him if the transaction was both pe rmitted and facilitated by the federal government; without
alleging such a policy, however, he could not prevail.

ASSIGNMENT SHEET 2

1. The Rome Statute

2. Article 51 of the U.N. Charter

3. Vienna Convention on the Law on Treaties

4. U.N. Convention for the Law of the Sea

5. Outer Space Treaty

6. Bayan v. Zamora, G.R. No. 138570, October 10, 2000

FACTS:

In view of the impending expiration of the RP -US Military Bases Agreement in 1991, the Philippines and the United
States negotiated for a possible extensi on of the military bases agreement. On September 16, 1991, the Philippine
Senate rejected the proposed RP -US Treaty of Friendship, Cooperation and Security which, in effect, would have
extended the presence of US military bases in the Philippines. With the expiration of the RP-US Military Bases
Agreement, the periodic military exercises conducted between the two countries were held in abeyance.
Notwithstanding, the defense and security relationship between the Philippines and the United States of America
continued pursuant to the Mutual Defense Treaty.

On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia Pacific Kurt
Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo Severi no Jr., to exchange
notes on "the complementing strategic interests of the United States and the Philippines in the Asia -Pacific region."
Both sides discussed, among other things, the possible elements of the Visiting Forces Agreement (VFA for brevity).
Negotiations by both panels on the VFA led to a consolidated draft text, which in turn resulted to a final series of
conferences and negotiations that culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel
V. Ramos approved the VFA, which was respectively signed by public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10, 1998.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA.

On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially
transmitted to the Senate of the Philippines, the Instrument of Ratification, the letter of the President and the VFA,
for concurrence pursuant to Section 21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to
its Committee on Foreign Relations, chaired by Senator Blas F. Ople, and its Committee on National Defense and

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Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration and recommendation. Thereafter, joint
public hearings were held by the two Committees.

On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443 recommending the concurrence of
the Senate to the VFA. On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two -
thirds (2/3) vote of its members. Senate Resolution No. 443 was then re -numbered as Senate Resolution No. 18.

On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent Secretary
Siazon and United States Ambassador Hubbard.

ISSUE:

WON the VFA is unconstitutional

1. Is the VFA governed by the provisions of Sec. 21, Art. VII or of Sec. 25, Art. XVII of the Constitution

2. Did the President commit grave abuse of discretion in ratifying the VFA and referring it to the Senate
pursuant to the provisions of Sec. 21, Art. VII of the Constitution

HELD:

1. NO, the VFA is not unconstitutional. Section 25, Article XVIII disallows foreign military bases, troops, o r
facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the
treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a majority of the votes
cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by
the Senate through Resolution No. 18 is i n accordance with the provisions of the Constitution . . . the provision in [in
§25, Article XVIII] requiring ratification by a majority of the votes cast in a national referendum being unnecessary
since Congress has not required it.

To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and that the
Senate extended its concurrence under the same provision, is immaterial. For in either case, whether under Section
21, Article VII or Section 25, Article XVIII, t he fundamental law is crystalline that the concurrence of the Senate is
mandatory to comply with the strict constitutional requirements. Applying the foregoing constitutional provisions, a
two-thirds vote of all the members of the Senate is clearly require d so that the concurrence contemplated by law
may be validly obtained and deemed present. While it is true that Section 25, Article XVIII requires, among other
things, that the treaty-the VFA, in the instant case-be "duly concurred in by the Senate," it is very true however that
said provision must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, which in
more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a two -thirds
vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to section
21, Article, VII.

This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting party accepts
or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in
this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord
strict meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning
except where technical terms are employed, in which case the significance thus attached to them prevails. Its
language should be understood in the sense they have in common use.

Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because,
under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses

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the elements of an agreement under international law, the said agreement is to be taken equally as a treaty. A treaty,
as defined by the Vienna Convention on the Law of Treaties, is "an international instrument concluded between States
in written form and governed by international law, whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation." There are many other terms used for a treaty or international
agreement, some of which are: act, protocol, agreement, compromis d’ arbitrage, concordat, convention, declaration,
exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed
out that the names or titles of international agreement s included under the general term treaty have little or no legal
significance. Certain terms are useful, but they furnish little more than mere description. The right of the Executive
to enter into binding agreements without the necessity of subsequent con gressional approval has been confirmed by
long usage.

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the
United States government has fully committed to living up to the terms of the VFA. For as long as the United States
of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under
the treaty, there is indeed marked compliance with the mandate of the Constitution.

2. NO GRAVE ABUSE OF DISCRETION. As regards the power to enter into treaties or international agreements,
the Constitution vests the same in the President, subject only to the concurrence of at least two -thirds vote of all
the members of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement
are exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic
powers granted him no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude,
and Congress itself is powerless to invade it . Consequently, the acts or judgment calls of the President involving the
VFA-specifically the acts of ratification and entering into a treaty and those necessary or incid ental to the exercise
of such principal acts - squarely fall within the sphere of his constitutional powers and thus, may not be validly struck
down, much less calibrated by this Court, in the absence of clear showing of grave abuse of power or discretion. It is
the Court’s considered view that the President, in ratifying the VFA and in submitting the same to the Senate for
concurrence, acted within the confines and limits of the powers vested in him by the Constitution.

The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such
ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be required, (c)
the representative of the State has signed the treat y subject to ratification, or (d) the intention of the State to sign
the treaty subject to ratification appears from the full powers of its representative, or was expressed during the
negotiation. In our jurisdiction, the power to ratify is vested in the P resident and not, as commonly believed, in
the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the
ratification. For the role of the Senate in relation to treaties is essentially legislative in c haracter; the Senate, as an
independent body possessed of its own erudite mind, has the prerogative to either accept or reject the proposed
agreement, and whatever action it takes in the exercise of its wide latitude of discretion, pertains to the wisdom
rather than the legality of the act. In this sense, the Senate partakes a principal, yet delicate, role in keeping the
principles of separation of powers and of checks and balances alive and vigilantly ensures that these cherished
rudiments remain true to their form in a democratic government such as ours.

Even if he erred in submitting the VFA to the Senate for concurrence under the provisions of Section 21 of Article VII,
instead of Section 25 of Article XVIII of the Constitution, still, the President may not be faulted or scarred, much less
be adjudged guilty of committing an abuse of discretion in some patent, gross, and capricious manner.

"Every treaty in force is binding upon the parties to it and must be performed by them in good faith." This is known
as the principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most
fundamental principles of positive international law, supported by the jurisprudence of international tribunals.

7. Lim v. Executive Secretary, G.R. No. 151445, April 11, 2002

10
FACTS: Pursuant to Visiting Forces Agreement (V FA) in 1999 personnel from the armed forces of the United States
of America started arriving in Mindanao Beginning January of this year 2002, to take part, in conjunction with the
Philippine military, in "Balikatan 02-1." the largest combined training operations involving Filipino and American
troops. It involves the simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral
defense agreement entered into by the Philippines and t he United States in 1951.

The entry of American troops into Philippine soil is proximately rooted in the international anti -terrorism campaign
declared by President George W. Bush in reaction to the tragic events that occurred on September 11, 2001. On th at
day, three (3) commercial aircrafts were hijacked, flown and smashed into the twin towers of the World Trade Center
in New York City and the Pentagon building in Washington, D.C. by terrorists with alleged links to the al -Qaeda ("the
Base"), a Muslim extremist organization headed by the infamous Osama bin Laden.

The petitioners, Arthur D. Lim and Paulino P. Ersando, as citizens, lawyers, and taxpayers, led a petition for certiorari
and prohibition and attacking the constitutionality of Balikatan 02 -1 or the joint exercise. Subsequently, they were
joined by SANLAKAS and Partido ng Manggagawa by ling a petition -in-intervention, the claimed that some of their
members were situated in the places were the exercise are being conducted.

On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein Vice -President Teofisto T.
Guingona, Jr., who is concurrently Secretary of Foreign. Affairs, presented the Draft Terms of Reference (TOR). Five
days later, he approved the TOR, which Exercise shall be consistent with the Philippine Constitution and all its
activities shall be in consonance with the laws of the land and the provisions of the RP -US Visiting Forces Agreement
(VFA).

Petitioners Lim and Ersando argues that mutual military assistance in accordance with the 'constitutional processe -
s' of each country only in the case of an armed attack by an external aggressor, meaning a third country against one
of them. by no stretch of the imagination can it be said that the abu sayyaf bandits in ba silan constitute an external
armed force that has subject the philippines to an armed external attack to warrant u.s. military assistance under the
mdt of 1951 and neither does the vfa of 1999 authorize american soldiers to engage in combat operations in p hilippine
territory, not even to fire back "if fired upon".

It is also contended that the petitioners are indulging in speculation. The Solicitor General is of the view that since
the Terms of Reference are clear as to the extent and duration of "Balikat an 02-1," the issues raised by petitioners
are premature, as they are based only on a fear of future violation of the Terms of Reference.

ISSUES: whether "Balikatan 02-1" is covered by the Visiting Forces Agreement.

HELD: YES, The holding of "Balikatan 0 2-1" must be studied in the framework of the treaty antecedents to which the
Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT). The MDT, the "core" of the defense
relationship between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and
technological capabilities of our armed forces through joint training with its American counterparts; the "Balikatan"
is the largest such training exercise directly supporting the MDT's objectives. It is this treaty to which the V FA adverts
and the obligations thereunder which it seeks to reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in US -
Philippine defense relations, that is, u ntil it was replaced by the Visiting Forces Agreement. It should be recalled that
on October 10, 2000, by a vote of eleven to three, this Court upheld the validity of the VFA.7 The V FA provides the
"regulatory mechanism" by which "United States military a nd civilian personnel [may visit] temporarily in the
Philippines in connection with activities approved by the Philippine Government." It contains provisions relative to
entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation
and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. It
is the VFA which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate
the promotion of optimal cooperation between American and Philippine military forces in the event of an attack by
a common foe.

11
The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of
which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the
approval of the Philippine government. The sole encumbrance placed on its definition is couched in the negative, in
that United States personnel must "abstain from any activity inconsistent with the spirit of this agreement, and in
particular, from any political activity." All other activities, in other words, are fair game.

To aid in this, The Vienna Convention on the Law of Treaties, Article 31 SECTION 3 and Article 32 which contains
provisos governing interpretations of international agreements, It is clear from the foregoing that the cardinal rule
of interpretation must involve an examination of the text, which is presumed to verbalize the p arties' intentions.

The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the
context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. According
to Professor Briggs, writer on the Convention, points out, no rigid temporal prohibition on resort to travaux
preparatoires of a treaty was intended by the use of the phrase 'supplementary means of interpretation' in what is
now Article 32 of the Vienna Co nvention. The distinction between the general rule of interpretation and the
supplementary means of interpretation is intended rather to ensure that the supplementary means do not constitute
an alternative, autonomous method of interpretation divorced from the general rule. The Terms of Reference rightly
fall within the context of the VFA.

The meaning of the word “activities" was deliberately made that way to give both parties a certain leeway in
negotiation. Thus, the VFA gives legitimacy to the current B alikatan exercises. Both the history and intent of the
Mutual Defense Treaty and the VFA support the conclusion that combat -related activities -as opposed to combat
itself -such as the one subject of the instant petition, are indeed authorized.

The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not
engage in combat "except in self -defense.". " The indirect violation is actually petitioners' worry, that in reality,
"Balikatan 02-1" is actually a war principally conducted by the United States government, and that the provision on
self-defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on this
matter thereby becomes crucial. In our considered opinio n, neither the MDT nor the VFA allow foreign troops to
engage in an offensive war on Philippine territory. Under the salutary proscription stated in Article 2 of the Charter
of the United Nations that All Members shall refrain in their international relat ions from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.

Both the Mutual Defense Treaty and the Visiting Forces Agreement, a s in all other treaties and international
agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution especially Sec.
2, 7 and 8 of Article 2: Declaration of Principles and State Policies in this case. The Constitu tion also regulates the
foreign relations powers of the Chief Executive when it provides that "[n]o treaty or international agreement shall
be valid and effective unless concurred in by at least two -thirds of all the members of the Senate." Even more
pointedly Sec. 25 on Transitory Provisions which shows antipathy towards foreign military presence in the country,
or of foreign influence in general.

Hence, foreign troops are allowed entry into the Philippines only by way of direct exception.

Conflict arises then between the fundamental law and our obligations arising from international agreements.

A rather recent formulation of the relation of international law vis -a-vis municipal law was expressed in Philip
Morris, Inc. v. Court of Appeals,13 “Withal, the fact that international law has been made part of the law of the land
does not by any means imply the primacy of international law over national law in the municipal sphere. Under the
doctrine of incorporation as applied in most countries, rules of int ernational law are given a standing equal, not
superior, to national legislation. “

From the perspective of public international law, a treaty is favored over municipal law pursuant to the
principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be

12
performed by them in good faith." Further, a party to a treaty is not allowed to "invoke the provisions of its internal
law as justification for its failure to perform a treaty."

Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5 of Article VIII,
The Supreme Court shall have the following powers: (2) Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide, fina l judgments and order of lower courts in: (A) All cases in
which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.

In Ichong v. Hernandez, we ruled that the provisions of a treaty are always subject to qualification or
amendment by a subsequent law, or that it is subject to the police power of the State. In Gonzales v. Hechanova, As
regards the question whether an intern ational agreement may be invalidated by our courts, suffice it to say that the
Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII that it
authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs
counter to an act of Congress.

The foregoing premises leave us no doubt that US forces are prohibited from engaging in an offensive war on
Philippine territory.

It is all too apparent that the determination thereof involves basically a question of fact. On this point, we
must concur with the Solicitor General that the present subject matter is not a fit topic for a special civil action for
certiorari. In this connection, it will not be a miss to add that the Supreme Court is not a trier of facts.

8. Saguisag v. Executive Secretary, G.R. No. 212426, January 12, 2016

FACTS: The Republic of the Philippines entered into an agreement with the United States of America creating the
Enhanced Defense Cooperation Agreement (EDCA). The EDCA authorizes the U.S. military forces to have access to
and conduct activities within certain “Agreed Locations” in the country. It was not transmitted to the Senate on the
executive’s understanding that to do s o was no longer necessary. Accordingly, in June 2014, the DFA and the U.S.
Embassy exchanged diplomatic notes confirming the completion of all necessary internal requirements for the
agreement to enter into force in the two countries.

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

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

On November 10, 2015, months after the oral arguments were concluded and the parties ordered to file their
respective memoranda, the Senators adopted Senate Resolution 105. The resolution expresses the strong sense of
the Senators that for EDCA to become valid and effective, it must first be transmitted to the Senate for deliberation
and concurrence.

ISSUE:

(1) Whether the President may enter into an executive agreement on foreign military bases, troops, or facilities.

(2) Whether the provisions under EDCA are consistent with the Constitution, as well as with existing laws and
treaties.

HELD:

13
The issues shall be discussed together.

The EDCA is constitutional. As an executive agreement, it remains consistent with the existing laws and treaties that
it purports to implement.

(a) The role of the President as the executor of the law includes the duty to defend the State, for which purpose
he may use that power in the conduct of foreign relations.

The President cannot function with crippled hands but must be c apable of securing the rule of law within all territories
of the Philippine Islands and be empowered to do so within the constitutional limits. Congress cannot, for instance,
limit or take over the President’s power to adopt implementing rules and regulati ons for a law it has enacted. This
mandate is self-executory by virtue of its being inherently executive in nature. The most important self -executory
constitutional power of the President is the President’s constitutional duty and mandate to ensure that th e laws be
faithfully executed (faithful execution clause). The rule is that the President can execute the law without any
delegation of power from the legislature.

(b) The plain meaning of the Constitution prohibits the entry of foreign military bases, tro ops or facilities, except
by way of a treaty concurred in by the Senate – a clear limitation on the President’s dual role as defender of the State
and as a sole authority in foreign relations. The President, however, may enter into an executive agreement o n
foreign military bases, troops, or facilities, if:

(a) It is not the instrument that allows the presence of foreign military bases, troops, or facilities;

(b) It merely aims to implement an existing law or treaty.

The petitioners assail Section 25, Arti cle XVIII of the Constitution that the EDCA must be in the form of a treaty duly
concurred in by the Senate. The petitioners also maintain that the Executive Department is not given the choice to
conclude agreements like EDCA in the form of an executive ag reement. Miriam Defensor Santiago, the author of SR
105, added that the Mutual Defense Treaty (MDT), which the Executive claims to be partly implemented through the
EDCA, is already obsolete.

The Court ruled in the negative. The MDT has not been rendered o bsolete, considering that as late as 2009, the court
continues to recognize its validity. With regard to the constitutional provision, it shall be noted that the provision
“shall not be allowed” is a negative injunction. This wording signifies that the Pre sident is not authorized by law to
allow foreign military bases, troops, or facilities to enter the Philippines, except under a treaty concurred in by the
Senate. Hence, the constitutionally restricted authority pertains to the entry of the bases, troops, or facilities and
not to the activities to be done after entry.

It is evident that the constitutional restriction refers solely to the initial entry of the foreign military bases, troops,
or facilities. Once entry is authorized, the subsequent acts are the reafter subject only to the limitations provided by
the rest of the Constitution and Philippine law, and not to the Section 25 requirement of validity through a treaty.
The Visiting Forces Agreement (VFA) has already allowed the entry of troops in the Phil ippines.

EDCA can be in the form of an executive agreement, since it merely involves “adjustments in detail” in the
implementation of the Military Defense Treaty and the Visiting Forces Agreement. It points out that there are existing
treaties between the Philippines and the U.S. that have already been concurred in by the Philippine Senate and have
thereby met the requirements of the Constitution under Section 25. Because of the status of these prior agreements,
EDCA need not be transmitted to the Senate.

(c) EDCA is consistent with the content, purpose, and framework of the MDT and VFA.

The provisions in EDCA dealing with Agreed Locations are analogous to those in other executive agreements. Concerns
on national security problems that arise from foreign mi litary equipment being present in the Philippines must
likewise be contextualized. Most significantly, the VFA already authorizes the presence of U.S. military equipment in
the country.

14
Therefore, there is no basis to invalidate EDCA on fears that it incr eases the threat to our national security. If
anything, EDCA increases the likelihood that, in an event requiring a defensive response, the Philippines will be
prepared alongside the U.S. to defend its islands and insure its territorial integrity pursuant to a relationship built
on the MDT and VFA.

9. U.N. General Assembly Resolution No. 3314 (XXIX)

I. Definition of Aggression in United Nations Resolution 3314 (XXIX), 1974.

The establishment of the United Nations in 1945 was a great step on the road to reject war in international relations.
That was clear in the charter of the United Nations where it states in Article 2, paragraph 4 that:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrit y
or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
( [3] )

This frank commitment by U.N members introduced an absolute and unconditional prohibition both to the use and
the threat to use force in international disputes. Although the Charter of the United Nations does not clarify in detail
the notion of aggression, this matter was unclear as a threat to peace and a breach of the peace( [4] ).

According to the U.N Charter too, the Security Co uncil –one of the main body of United Nations - has responsibility
to deal with aggression as indicated by Article 39 of the Charter which read that: “The Security Council shall determine
the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations,
or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international
peace and security”.( [5] )

Article 39 of the Charter left “aggression” undefined, and put on the same level threat to peace, breach of the peace,
or act of aggression'( [6] ). It does not give a definition for threat to peace either.

During the discussion concerning the draft of the U.N Charter in San Francisco Conference, some countries proposed
to include definitions of aggression. There was a Bolivian proposal to define aggression similar to the Soviet proposal
submitted to the Disarmament Conference in 1933( [7] ). However, the specialized committee in San Francisco
rejected any idea to define aggression arguing that it would not be able to envisage or encompass developments in
warfare, besides which it might lead to the ‘premature application of enforcement measures’ through ‘automatic
Council action’. ( [8] )

In its first committee on November 6, 1950, the Soviet Union revived, under the item ‘Duties of States in the Event
of the Outbreak of Hostilities’, the substance of its draft definition of 1933. This, with related matters, was submitted
in due course to the International Law Commission fo r its views.( [9] )

On November 17, 1950, in its resolution 378/B (V), the General Assembly condemned the intervention of a state in
the internal affairs of another state for the purpose of changing its legally established government by the threat or
use of force’, and declared that ‘any aggression, whether committed openly, or by fermenting civil strife in the
interest of a foreign power, or otherwise, is the gravest of all crimes against peace and security throughout the
world…’.( [10] ).

In the same resolution (378), the General Assembly ordered the International Law Commission to present some
solutions to the problem of the definition of aggression. The Commission reached the conclusion that ‘a juridical
definition of aggression would be an artificial de vice, which could never be adequate enough to include all possible
cases of aggression, especially since aggression methods are constantly developing’. ( [11] )

As a result, the Commission decided to introduce among the crimes defined in the draft code of offences against the
peace and security of mankind –which was under preparation by the Commission - all acts and threats of aggression,
without defining what aggression is. ( [12] )

15
 II. The Resolution 3314

On 14 December 1974, the United Nations General Ass embly adopted the Resolution 3314 (XXIX), which provides a
definition of aggression, based largely on a method enumerating certain acts, which together or by themselves would
amount to aggression

Aggression, as Article (1) read , is defined as “the use of a rmed force by a State against the sovereignty, territorial
integrity or political independence of another State, or in any other manner inconsistent with the Charter of the
United Nations, as set out in this Definition( [33] ).”

It’s noted here that the definition is limited to the use of armed force. The word “threat”, which was always coupled
with the word “force” in many positions in the UN Charter was deleted in formulating the General Assembly definition
which implied that aggression could only exist w hen using actual armed force.

The resolution only applies to states and therefore does not resolve the legal lacuna raised by possible acts of
aggression performed by or against non -State entities such as national liberation movements/ people fighting for
their right to self-determination. For instance, the definition would not cover….Kurds in Iraq, Turkey and Iran( [37] ).
However, some scholars have advocated for a broader interpretation of article 1. For instance, Hertz who saw that
the provision under Article 1 (a) means to say that acts of aggression applies also to “people”, as state refers not
only to members of the UN, or other non -recognized States. This note is given to understand that aggression can
apply to any aggressor including the military gr oups which have no state entity ( [38] ).

Article 2 of the Resolution read that : “The first use of armed force by a state in contravention of the Charter shall
constitute prima facie evidence of an act of aggression although the Security Council may, in co nformity with the
Charter, conclude that a determination that an act of aggression has been committed would not be justified in the
light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of
sufficient gravity”

This Article has some ambiguities and gaps because it could imply that a first use of armed force is permissible,
although Article 51 of UN Charter and many writers support the idea that “preemptive self -defence” is not permissible
according to the UN Charter( [40] ). Another observation is related to the term “relevant circumstances” which is
considered so open-ended as to give the Security Council no guidance whatsoever. Arguably it may be “relevant” that
the use of armed force was undertaken f or such pure motives as “humanitarian intervention” or in response to
economic coercion ( [41] ).

The third observation is about the phrase “the acts concerned or their consequences are not of sufficient gravity”
amounts to a de minimis clause designed to prevent minor incidents from being treated as acts of aggression. The
regrettable inclusion is that there can be first uses of armed force in violation of the UN Charter that will not be
treated seriously. An inclusion like this helps to enhance Charter re strictions on the unilateral use of force by states
( [42] ).

The definition –as indicated by Politi- uses two approaches at the same time: a deductive approach as manifestation
in Article 1 which presented a general formula, and an inductive approach in w hich it enumerated acts which
constitute aggression in a non exhaustive manner as presented by Article 3( [43] ).

Article 3 of the Resolution specified the acts which considered acts of aggression:

(a) The invasion or attack by the armed forces of a state of the territory of another state, or any military occupation,
however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of
another State or part thereof,

(b) Bombardment by the armed forces of a Stat e against the territory of another State or the use of any weapons by
a state against the territory of another state;

(c) The blockade of the ports or coasts of a state by the armed forces of another state;

16
(d) An attack by the armed forces of a state on t he land, sea or air forces, or marine and air fleets of another state;

(e) The use of armed forces of one state which are within the territory of another state with the agreement of the
receiving state, in contravention of the conditions provided for in th e agreement or any extension of their presence
in such territory beyond the termination of the agreement;

(f) The action of a state in allowing its territory, which it has placed at the disposal of another state, to be used by
that other state for perpetrating an act of aggression against a third state;

(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of
armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement
therein( [44] ).

According to Murphy, Article 3 (a) repeats and injunction in the preamble of the definition, and invasion or attack
have long been regarded as a benchmark of aggression. However, where one state’s territory ends and another begins
is often a mater of hot despute, and a state utilizing force across a disputed frontier may argue that it is merely acting
within its own territory and hence has not committed a prima facie act of aggression.

The provision under Article 3 (g) is particularly interesting. It identi fies a list of typical aggression acts, which can be
qualified as “indirect aggression”

Article 4 of the Resolution read that : “The acts enumerated above are not exhaustive and the Security Council may
determine that other acts constitute aggression under the provisions of the Charter”( [47] ). According to this Article
the list mentioned in Article 3 is not exhaustive. General Assembly Resolutions are not binding upon the Security
Council. However, it influenced the Council’s practice, and it has been refe rred to in the drafting of Security Council
Resolutions

In fact, Resolution 3314 makes this plain when it recommends to the Security Council that ” take account of that
Definition as guidance in determination, in accordance with the Charter, the existence of an act of aggression”
According to this preamble and Article 4, although the Security Council can use resolution 3314 as a point of
departure, the Council is not obliged to make use of this Resolution

In general, the definition of aggression contained in the Resolution shall not prejudice the functions of organs of
United Nations as they are provided for by the Charter. This being the situation, it is useless to raise the problem
(which in any case would have to have a negative answer) of whether the A ssembly has the power to bind the Council
on this matter

Article 5 of 3314 Resolution read that:

“1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a
justification for aggression.

2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.

3. No territorial acquisition or special advantage resulting from aggression shall be recognized as lawful” ( [52] ).

This Article clearly provides re sponsibility for States for their aggression or acts of aggression ( [53] ). Aggression
gives rise to international responsibility ( [54] ).

In Article 2 of the same resolution, the responsibility of determining the occurrence of aggression has been entru sted
to the UN Security Council ( [55] ).

Despite the fact that the final report of the Special Committee responsible for the definition provided that the phrase
“international responsibility” are used without prejudice to the scope of this term, it has be en argued that the

17
resolution provides evidence of the fact that individual criminal responsibility attaches only to certain types of inter -
state uses of armed force( [56] ).

It condemned the use of armed force by a State against the sovereignty, territori al integrity or political independence
of another State and, after listing several illustrations of prohibited actions, concluded that whether the crime of
aggression had been committed had to be considered “in the light of all the circumstances of each pa rticular case(
[57] ).

Article 6 of the Definition of Aggression stated that:

“Nothing in this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter,
including its provisions concerning cases in which the use of for ce is lawful”( [58] ). This Article reaffirms the use of
lawful force or self-defense. From the deliberations of the Sixth Committee at the twenty -fifth through twenty-ninth
sessions of the General Assembly and of the Special Committee on the Question of D efining Aggression at its 1970-
1974 sessions, it is clear that the language of Article 6 of the Definition constitutes a clear implicit reference to Article
51( [59] ).

As for Article 7 of the resolution it read that

“Nothing in this Definition, and in pa rticular article 3, could in any way prejudice the right to self -determination,
freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in
the Declaration on Principles of International Law concerni ng Friendly Relations and Cooperation among States in
accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other
forms of alien domination: nor the right of these peoples to struggle to that end and t o seek and receive support, in
accordance with the principles of the Charter and in conformity with the above -mentioned Declaration”( [60] ). This
Article provides that nothing in the definition could be used to the prejudice of the right of self determina tion,
especially as it concerns people under colonial domination. However, if what would normally be regarded as
aggression under the resolution is committed in the name of “self determination”, freedom and independence, this
Article removes the slur of criminality( [61] ).

Using this definition to indicate to the individual criminal responsibility has been problematic matter, from where
this definition distinguishes between State responsibility and the crimes committed by individuals: article 5,
paragraph 2, which reflects paragraph 1 of the Friendly Relations Declaration (General Assembly resolution 2625
(XXV) of 24 October 1970, annex), accords individual responsibility only regarding a “war of aggression”. As the
International Law Commission (ILC) noted in its commentary on its 1994 draft Statute for an international criminal
court, resolution 3314 (XXIX) “deals with aggression by States, not with the crimes of individuals, and is designed as
a guide for the Security Council, not as a definition for judic ial use. But, given the provisions of Article 2, paragraph
4, of the Charter of the United Nations, that resolution offers some guidance”( [62] ).

The last Article of the Resolution (Article 8) read that

“In their interpretation and application the above provisions are interrelated and each provision should be construed
in the context of the other provisions”

10. Fisheries Jurisdiction Case (United Kingdom v. Iceland), [1973] ICJ Rep.

Facts: On 11 March 1961, United Kingdom and Iceland agreed on a treaty whereby the United Kingdom would honor
the 12-mile exclusive fishery zone of Iceland. Provided, that future disputes in relation to such extension would be
referred to the International Court of Justice.

In 1971, Icelandic Government announced that the 196 1 agreement would be terminated and the limit of the
exclusive Icelandic fisheries jurisdiction would be extended to 50 miles. United Kingdom was formally notified of this
development by the Icelandic Government. In reply, United Kingdom emphasized that Ic eland cannot unilaterally
terminate their agreement. Further, such claim by Iceland would not have an international basis.

18
In 1972, New regulations were introduced whereby Iceland’s fishery limit would be extended to 50 miles and all
fishing activities by foreign vessels inside those limits would be prohibited.

Issue: Whether or not Iceland could validly extend the fishery limit from 12 miles to 50 miles.

Ruling: No.

In the 1960 Geneva Convention, there arose 2 principles that crystallized as a customary law. First, that of a fishery
zone, between territorial se and the high seas, within which the coastal State could claim exclusive fisheries
jurisdiction – it now being generally accepted that that zone could extend to the 12 mile limit; and second, the
concept, in respect of waters adjacent to the zone of exclusive fishing rights, of preferential fishing rights in favor
of the coastal State in a situation of special dependence in its fisheries.

In the case at bar, the 12-mile fishery zone of Iceland is n ot in dispute. United Kingdom recognizes that fact. However,
the very notion of preferential fishery rights for the coastal State in a situation of special dependence, though it
implied a certain priority, could not imply the extinction of the concurrent r ights of other States. The fact that Iceland
was entitled to claim preferential rights did not suffice to justify its claim unilaterally to exclude British fishing vessel s
from all fishing beyond the 12 miles agreed to in 1961.

United Kingdom also brought to the attention of the court that It has been fishing in that zone for centuries and has
continued to do so in the same manner as it has previously done. The economic dependence and livelihood would be
seriously affected if the prohibition of Iceland were to happen.

In order to have an equitable resolution, it is necessary to take in consideration the preferential fishing rights of
Iceland and the traditional fishing rights of United Kingdom. Iceland is not allowed to unilaterally exclude United
Kingdom fishing vessels from the disputed areas, and on the other hand, United Kingdom must honor the preferential
right of Iceland regarding the said area.

The most appropriate method for the solution is to negotiate with a view to delimiting the light and interest s of the
Parties and regulating equitably such questions as those catch -limitation, share allocations and related restrictions.

For these reasons, the ICJ:

(1) found that the Icelandic Regulations of 1972 constituting a unilateral extension of the exclusi ve fishing rights of
Iceland to 50 nautical miles from the baselines are not opposable to the United Kingdom;

(2) found that Iceland is not entitled unilaterally to exclude United Kingdom fishing vessels from areas between the
12-mile and 50-mile limits, or unilaterally to impose restrictions on their activities in such areas;

(3) held that Iceland and the United Kingdom are under mutual obligations to undertake negotiations in good faith
for an equitable solution of their differences;

(4) indicated certain factors which are to be taken into account in these negotiations (preferential rights of Iceland,
established rights of the United Kingdom, interests of other States, conservation of fishery resources, joint
examination of measures required).

11. Namibia Case, [1971] ICJ Rep.

FACTS:

The General Assembly adopted resolution 2145 on the termination of the Mandate for South West Africa and that
South Africa had no other right to administer the Territory. In the preamble the General Assembly declares itsel f
"Convinced that the administration of the Mandated Territory by South Africa has been conducted in a manner

19
contrary" to the two basic international instruments directly imposing obligations upon South Africa, the Mandate
and the Charter of the United Nations, as well as to the Universal Declaration of Human Rights. In paragraph 3 of the
operative part of the resolution the General Assembly "Declares that South Africa has failed to fulfil its obligations
in respect of the administration of the Mandated Te rritory and to ensure the moral and material well -being and
security of the indigenous inhabitants of South West Africa and has, in fact, disavowed the Mandate.

The General Assembly, however, lacked the necessary powers to ensure the withdrawal of South A frica from the
Territory, enlisted the co-operation of the Security Council. The Security Council called upon South Africa to withdraw
its administration from the Territory. After condemning the non -compliance by South Africa with General Assembly
and Security Council resolutions pertaining to Namibia, the Security Council declared that "the continued presence
of the South African authorities in Namibia is illegal.

In Resolution 269 (1969)

3. The Security Council declared that the actions of the Government of South Africa designed to destroy the
national unity and territorial integrity of Namibia through the establishment of Bantustans are contrary to
the provisions of the United Nations Charter.

4. The Security Council decided "that the continued occupation of the territory of Namibia by the South African
authorities constitutes an aggressive encroachment on the authority of the United Nations, . . .". In operative
paragraph 3 of resolution 276 (1970) the Security Council declared further "that the defiant attit ude of the
Government of South Africa towards the Council's decisions undermines the authority of the United Nations".

The Government of France in its written statement and the Government of South Africa throughout the present
proceedings have raised the objection that the General Assembly, in adopting resolution 2145 (XXI), acted ultra vires.
It contended that the Covenant of the League of Nations did not confer on the Council of the League power to
terminate a man- date for misconduct of the mandatory a nd that no such power could therefore be exercised by the
United Nations, since it could not derive from the League greater powers than the latter itself had.

ISSUE: Whether or not the General Assembly acted ultra vires

HELD:

No. In examining this action o f the General Assembly it is appropriate to have regard to the general principles of
international law regulating termination of a treaty relationship on account of breach. For even if the mandate is
viewed as having the character of an institution, as is maintained, it depends on those international agreements
which created the system and regulated its application. As the Court indicated in 1962 "this Mandate, like practically
all other similar Mandates" was "a special type of instrument composite in natur e and instituting a novel inter-
national régime. It incorporates a definite agreement . . ." (I.C.J. Reports 1962, p. 331). The Court stated conclusively
in that Judgment that the Mandate ". . . in fact and in law, is an international agreement having the character of a
treaty or convention" (I.C.J. Reports 1962, p. 330). The rules laid down by the Vienna Convention on the Law of
Treaties concerning termination of a treaty relationship on account of breach (adopted without a dissenting vote)
may in many respects be considered as a codification of existing customary law on the subject. In the light of these
rules, only a material breach of a treaty justifies termination , such breach being defined as:

"(a) a repudiation of the treaty not sanctioned by the pr esent Convention; or

(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty"

General Assembly resolution 2145 (XXI) determines that both forms of material breach had occurred in this case. By
stressing that South Africa "has, in fact, disavowed the Mandate", the General Assembly declared in fact that it had
repudiated it. The resolution in question is therefore to be viewed as the exercise of the right to terminate a
relationship in case of a deliberate and persistent violation of obligations which destroys the very object and purpose
of that relationship

20
In its Advisory Opinion of 21 June 1971, the Court found that the continued presence of South Africa in Namibia was
illegal and that South Africa was under an obligation to withdraw its administration immediately. It found that States
Members of the United Nations were under an obligation to recognize the illegality of South Africa’s presence in
Namibia and the invalidity of its acts on behalf of or concerni ng Namibia, and to refrain from any acts implying
recognition of the legality of, or lending support or assistance to, such presence and administration. Finally, it stated
that it was incumbent upon States which were not Members of the United Nations to gi ve assistance in the action
which had been taken by the United Nations with regard to Namibia.

12. Quatar v. Bahrain, [1994] ICJ Rep.

FACTS:

On 8 July 1991, Qatar filed in the Registry of the Court an Application instituting proceedings against Bahrain in
respect of certain disputes between the two States relating to sovereignty over the Hawar Islands, sovereign rights
over the shoals of Dibal and Qit’at Jaradah and the delimitation of their maritime areas. Qatar founded the
jurisdiction of the Court upon certain agreements between the Parties stated to have been concluded in December
1987 and December 1990, the subject and scope of the commitment to accept that jurisdiction being determined by
a formula proposed by Bahrain to Qatar in October 1988 and acce pted by the latter State in December 1990 (the
“Bahraini formula”). As Bahrain contested the basis of jurisdiction invoked by Qatar, the Parties agreed that the
written proceedings should first be addressed to the questions of jurisdiction and admissibilit y.

On the prescribed date, Qatar filed a document entitled “Act”, which referred to the absence of an agreement
between the Parties to act jointly and declared that it was submitting “the whole of the dispute” to the Court. On
the same day, Bahrain filed a document entitled “Report” in which it indicated, inter alia, that the submission to the
Court of “the whole of the dispute” must be “consensual in character, that is, a matter of agreement between the
Parties”.

ISSUES

1. Whether “Minutes” constitute as international agreements

2. Whether ICJ has jurisdiction to adjudicate the present case

3. Whether intl customary law apply on the question of maritime delimitation

HELD

1. Minutes

Court delivered a first Judgment on the above -mentioned questions. It took the view that both the exchanges of
letters of between the King of Saudi Arabia and the Amir of Qatar, and between the King of Saudi Arabia and the Amir
of Bahrain, and the document entitled “Minutes” and signed at Doha in December 1990 constituted interna tional
agreements creating rights and obligations for the Parties.

International agreements do not take a single form under the Vienna Convention on the Law of Treaties, and the
Court has enforced this rule in the past. In this case, the Minutes not only c ontain the record of the meetings between
the parties, it also contained the reaffirmation of obligations previously agreed to and agreement to allow the King
of Saudi Arabia to try to find a solution to the dispute during a six -month period, and indicated the possibility of the
involvement of the I.C.J. The Minutes stipulated commitments to which the parties agreed, thereby creating rights
and obligations in international law. This is the basis therefore of the existence of international agreement.

2. Jurisdiction and admissibility

Court found that it had jurisdiction to adjudicate upon the dispute submitted to it between Qatar and Bahrain, and
that the Application of Qatar, as formulated on 30 November 1994, was admissible. The Court, having proceeded to
an examination of the two paragraphs constituting the Doha Agreement, found that, in that Agreement, the Parties

21
had reasserted their consent to its jurisdiction and had defined the object of the dispute in accordance with the
Bahraini formula

3. Maritime delimitation

The Court then turned to the question of the maritime delimitation. It recalled that international customary law was
the applicable law in the case and that the Parties had requested it to draw a single maritime boundary. In the
southern part, the Court had to draw a boundary delimiting the territorial seas of the Parties, areas over which they
enjoyed territorial sovereignty (including sea -bed, superjacent waters and superjacent aerial space). In the northern
part, the Court had to make a delimitation between areas in which the Parties had only sovereign rights and functional
jurisdiction (continental shelf, exclusive economic zone).

With respect to the territorial seas, the Court considered that it had to draw provisionally an equidistance lin e (a line
every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial
sea of each of the two States is measured) and then to consider whether that line must be adjusted in the light of
any special circumstances. As the Parties had not specified the baselines to be used, the Court recalled that, under
the applicable rules of law, the normal baseline for measuring the breadth of the territorial sea was the low -water
line along the coast. It observed t hat Bahrain had not included a claim to the status of archipelagic State in its formal
submissions and that the Court was therefore not requested to take a position on that issue. In order to determine
what constituted the Parties’ relevant coasts, the Cou rt first had to establish which islands came under their
sovereignty.

With regard to low-tide elevations, the Court, after noting that international treaty law was silent on the question
whether those elevations should be regarded as “territory”, found th at low-tide elevations situated in the overlapping
area of the territorial seas of both States could not be taken into consideration for the purposes of drawing the
equidistance line. That was true of Fasht ad Dibal, which both Parties regarded as a low -tide elevation.

13. Danube Dam Case (Hungary v. Slovakia), 37 ILM 162 (1998)

Gabčikovo-Nagymaros Project (Hungary / Slovakia)

Facts:

On 16 September 1977, by the Hungarian People's Republic and the Czechoslovak People's Republic entered into a
treaty (Budapest Treaty of 1977) concerning the construction and operation of the Gabcíkovo-Nagymaros system of
locks in order to further the utilization of the natural resources of the Bratislava -Budapest section of the Danube
river. A “PROTOCOL OF AGREEMENT” was signed by the parties. The project was essentially aimed at the production
of hydroelectricity, the improvement of navigation on the relevant section of the Danube and the protection of the
areas along the banks against flooding. It provided for the buil ding of two series of locks, one at Gabcíkovo (in
Czechoslovak territory) and the other at Nagymaros (in Hungarian territory), to constitute a single and indivisible
operational system of works.

As a result of intense criticism which the project had generated in Hungary, the Hungarian Government decided on
13 May 1989 to suspend the works at Nagymaros pending the completion of various studies. In October 1989, Hungary
decided to not continue the work any further.

During this period, negotiations took place between the parties. Czechoslovakia also started investigating alternative
solutions. One of them, an alternative solution subsequently known as " Variant C", entailed a unilateral diversion of
the Danube by Czechoslovakia on its territory. On 23 July 1991 , the Slovak Government decided to begin construction
to put the Gabcíkovo Project into operation by the above -mentioned alternative solution.

On 19 May 1992, the Hungarian Government transmitted to the Czechoslovak Government a note verbale unilaterally
terminating the 1977 Treaty with effect from 25 May 1992. On 15 October 1992, Czechoslovakia began work to enable
the Danube to be closed and, starting on 23 October, proceeded to the damming of the river, before Slovakia became
an independent State on 1 January 1993.
22
Slovakia and Hungary then concluded in April 1993 a compromise, inter alia requesting the Court to decide whether
the Republic of Hungary had been entitled to suspend and subsequently abandon, in 1989, the works on the project.

ISSUES:

1. Whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works on
the Nagymaros project and on that part of the Gabčíkovo project for which the Treaty attributed responsibility to the
Republic of Hungary

2. Whether the Czech and Slovak Federal Republic was entitled to proceed, in November 1991, to the
“provisional solution” and to put into operation from October 1992 this system (the damming up of the Danube at
river kilometre 1,851.7 on Czechoslovak territory and the r esulting consequences for the water and navigation course)

3. What were the legal effects of the notification, on 19 May 1992, of the termination of the Treaty by the
Republic of Hungary. The Court was also requested to determine the legal consequences, in cluding the rights and
obligations for the Parties, arising from its Judgment on the above -mentioned questions. Each of the Parties filed a
Memorial, a Counter Memorial and a Reply accompanied by a large number of annexes.

RULING:

1. NO. The Court asserted that Hungary was not entitled to suspend and subsequently abandon in 1989, the
works on the Nagymaros project and on the part of the Gabčíkovo project for which it was responsible, and that
Czechoslovakia was entitled to proceed, in November 1991, to the “provisional solution” as described by the terms
of the Special Agreement but not the “Variable C” that they subsequently decided upon.

2. NO. The Court stated that Czechoslovakia was not entitled to put into operation , from October 1992, the
barrage system in question and that Slovakia, as successor to Czechoslovakia, had become Party to the Treaty of 16
September 1977 as from 1 January 1993. The Court also decided that Hungary and Slovakia must negotiate in good
faith in the light of the prevailing sit uation and must take all necessary measures to ensure the achievement of the
objectives of the said Treaty, in accordance with such modalities as they might agree upon.

While reiterating that Czechoslovakia had violated the treaty when it diverted the wat ers of the Danube, the Court
found that it had not yet done so when constructing the works which eventually led to the putting into operation of
Variant C. In the Court's view, therefore, the notification of termination by Hungary on 19 May 1992 had been
premature and Hungary had thus not been entitled to invoke any such breach of the treaty as a ground for terminating
it when it did.

3. The Court observed that the 1977 Treaty was still in force and consequently primarily governed the
relationship between the Parties. Taking into account the fact, however, that the Treaty had not been fully
implemented by either party for years, it considered that the factual situation as it had developed since 1989 was to
be placed within the context of the preserved and de veloping treaty relationship, in order to achieve its object and
purpose in so far as that is feasible.

In its judgment of 25 September 1997, the Court started by taking the view that in many respects the provisions of
the Vienna Convention concerning the termination and the suspension of the operation of treaties, set forth in its
Articles 60 to 62, are to be considered as a codification of customary international law. It then found that in
suspending and subsequently abandoning the works for which it was still responsible Hungary had expressed its
unwillingness to comply with at least some of the provisions of the Treaty of 1977, the effect of which was to render
impossible the accomplishment of the system of works that the Treaty expressly described as si ngle and indivisible.

The Court further considered that the state of necessity is a ground recognized by customary international law for
precluding the wrongfulness of an act not in conformity with an international obligation. It also considered,
moreover, that such ground for precluding wrongfulness can only be accepted on an exceptional basis. It
acknowledged that the concerns expressed by Hungary for its natural environment in the region related to an
essential interest, but that the perils invoked by Hu ngary, without prejudging their possible gravity, were not
23
sufficiently established in 1989, nor had they been imminent; and that Hungary had had available to it at that time
means of responding to these perceived perils other than the suspension and aband onment of works with which it
had been entrusted.

The Court also noted that Hungary - when it decided to conclude the 1977 Treaty – had been presumably aware of
the situation as then known; and that the need to ensure the protection of the environment had not escaped the
parties. The Court therefore concluded that, even if it had been established that there was, in 1989, a state of
necessity linked to the performance of the 1977 Treaty, Hungary would not have been permitted to rely upon that
state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped to bring it about.
In the light of the conclusions reached above, the Court found that Hungary had not been entitled to suspend and
subsequently abandon the works for which it was responsible.

As to the legal effects of the notification of the termination of the Treaty by the Republic of Hungary, the Court
first observed that, even if a state of necessity is found to exist, it is not a ground for the termination of a treaty
but may be only invoked to exonerate from its responsibility a State which has failed to implement a treaty.

The Court found that the notification of termination by Hungary of 19 May 1992 did not have the legal effect of
terminating the 1977 Treaty.

As to the question whether Slovakia had become a party to the 1977 Treaty as a successor State of Czechoslovakia,
the Court referred to the principle that treaties of a territorial character remain unaffected by a succession of States,
a principle which, according to the Court, is part of customary international law. The Court accordingly concluded
that the Treaty itself had not been affected by a succession of States and had thus become binding upon Slovakia on
1 January 1993.

On 3 September 1998, Slovakia filed in the Registry of the Court a request for an additional Judgment in the case.
Slovakia considered such a Judgment necessary because of the unwillingness of Hungary to implement the Judgment
delivered by the Court on 25 September 1997. In its requ est, Slovakia stated that the Parties had conducted a series
of negotiations of the modalities for executing the 1997 Judgment and had initialled a draft Framework Agreement,
which had been approved by the Slovak Government. However, according to the latte r, Hungary had decided to
postpone its approval and had even disavowed it when the new Hungarian Government had come into office. Slovakia
requested the Court to determine the modalities for executing the Judgment, and, as the basis for its request, invoke d
the Special Agreement signed at Brussels on 7 April 1993 by itself and Hungary. After the filing by Hungary of a
statement of its position on Slovakia’s request, the Parties resumed negotiations and informed the Court on a regular
basis of the progress in them.

14. The Tinoco Arbitration (Great Britain v. Costa Rica), 1923

Doctrine: The principle of continuity of states

“Changes in the government or the internal policy of a state do not as a rule affect its position in international
law...The state is bound by engagements entered into by governments that have ceased to exist; the restored
government is generally liable for the acts of the usurper*.”(Dr. John Bassett Moore. Justice -Permanent Court of
International Justice. Quoted from his work: Digest of International Law).

FACTS: In this case, Great Britain entered with the Tinoco Government, a contract known as the "Amory concession",
which contemplated a right granted to Great Britain, 12 years to prospect or cause to prospect territories of 8
provinces of Costa Rica, to find deposits of petroleum, carbon, and allied substances. The concession is now owned
by Central Costa Rica Petroleum Company of Canada, and all its stock is owned by the British Controlled Oil Fields,
Ltd.

This Tinoco Government actually overthrew the de jure government of Costa Rica and lasted from January 27, 1917 -
September 2, 1919. Eventually, the de jure government of Costa Rica was restored and on August 22, 1922 (*please
see details below), this government passed a law, “Law of Nullities No. 41”, which nullified and invalidated all
contracts made by the Tinoco government and private persons.
24
Aggrieved, Great Britain submitted this case for arbitration, wherein William H. Taft was the Sole Arbitrator.

Arguments of Great Britain

1. The Tinoco government was the onlygovernment of Costa Rica de facto and de jure for two years and nine
months; that during that time there is no other government disputing its sovereignty, and that it was in peaceful
administration.

2. the succeeding government (i.e. the restored government) could not by legislative decree avoid responsibility
for acts of that government affecting British subjects,or appropriate or confiscate rights and property by that
government except in violation of international law

3. that the Law of Nullities No. 41 pertains to British interests, and because of this, is itself a nullity and to be
disregarded, with the consequence that the contracts validly made with the Tinoco government must be performed
by the present Costa Rican Government, and that the property which has been invaded or the rights nullified must
be restored.

Replies of the Costa Rican Government

1. The Tinoco government cannot be recognized as de facto nor de jure because it did not conform to the
Constitution of the legit Government of Costa Rica.

2. Great Britain is estopped from enforcing the contract because it did not recognize the Tinoco regime.

ISSUE 1: How does a provisional government attain force and effect? Is it material that for a provisional governme nt
to have effect, other states should recognize it first? NO.

TAFT’S DECISION:

Countries that recognized Tinoco were Bolivia, Argentina, Chile, Haiti, Guatemala, Switzerland,the Vatican, and so
on. However, the US did not recognize them perhaps because th e US was an ally of Great Britain during the first world
war.

With these circumstances, although recognition by other nations is usually appropriate evidence of national
personality, it loses evidential weight on the issue with which those applying the rul es of international law are
concerned (i.e. continuity principle).

ISSUE 2: Can Tinoco’s government be considered a link in the continuity of the Government of Costa Rica? YES.

TAFT'S DECISION: Taft held from the evidence

that the Tinoco government was an actual sovereign government** (criteria: government which establishes itself and
maintains a peaceful administration, with the acquiescence of the people for a substantial period of time).

ISSUE 3: Should Great Britain be estopped from enforcing the contra ct since it did not recognize the Tinoco
government in its incumbency?

TAFT'S DECISION: NO. The continuity principle prevails.

*In January, 1917, the Government of Costa Rica, under President Alfredo Gonzalez, was overthrown by Frederico
Tinoco, the Secretary of War. Gonzalez fled. Tinoco assumed power, called an election, and established a new
constitution in June, 1917. His government continued until August, 1919, when Tinoco retired, and left the country.
His government fell in September following. After a provisional government under one Barquero, the old constitution
was restored and elections held under it. The restored government is a signatory to this treaty of arbitration.

**Frederico A. Tinoco was Secretary of War under Alfredo Gonzalez, the then President of Costa Rica. On the ground
that Gonzalez was seeking reelection as President in violation of a constitutional limitation, Tinoco used the army
and navy to seize the government, assume the provisional headship of the Republic and become Commander -in-Chief
25
of the army. Gonzalez took refuge in the American Legation, thence escaping to the United States. Tinoco constituted
a provisional government at once and summoned the people to an election for deputies to a constituent assembly on
the first of May, 1917. At the same time he directed an election to take place for the Presidency and himself became
a candidate. An election was held. Some 61,000 votes were cast for Tinoco and 259 for another candidate. Tinoco
then was inaugurated as the President to a dminister his powers under the former constitution until the creation of
a new one. A new constitution was adopted June 8,1917, supplanting the constitution of 1871. For a full two years
Tinoco and the legislative assembly under him peaceably administered the affairs of the Government of Costa Rica,
and there was no disorder of a revolutionary character during that interval. No other government of any kind asserted
power in the country. The courts sat, Congress legislated, and the government was duly admini stered. Its power was
fully established and peaceably exercised. The people seemed to have accepted Tinoco's government with great good
will when it came in, and to have welcomed the change.

15. Upright v. Mercury Business Machines Co., 1961

FACTS:

- Plaintiff, Walter Upright, an American citizen. He is suing before the US Supreme Court as the assignee for
value and of a trade acceptance drawn on and accepted by defendant, Mercury Business Machines, a New York
corporation.

- Plaintiff sues as the assignee of a trade acceptance drawn on and accepted by defendant Mercury in payment
for business typewriters sold and delivered to it by Polygraph Export GmbH

- Mercury´s counsel had been advised that Polygraph was a ¨state -controlled enterprise of the so-called
German Democratic Republic¨ (GDC)

- Defendant argues that:

- Upright lacked capacity to sue since GDC was not recognized by the United States

- It is an instrumentality of the government

- Upright, as its assignee, has no greater right to maintain the a ction than his assignor

- Trial court ruled that the defense was valid and upheld the well -established rule that an unrecognized
government could not sue, therefore the assignee of said unrecognized government could likewise not sue

ISSUE:

- W/N TC erred in ruling that Upright could not be sue based solely on unrecognition

- W/N the transaction entered into was illegal or violative of public policy

RULING:

- Yes, the TC erred. The “political” decision not to recognize a government does not deprive it of a juridically
cognizable de facto existence. A foreign government, although not recognized by the political arm of the United
States government, may nevertheless have a de facto existence which is juridically cognizable. The acts of such a de
facto government may affect private rights and obligations arising either as a result of activity in, or with persons or
corporations within, the territory controlled by such de facto government. The lack of jural status for such
government or its creature corporation is not determinative of whether transactions with it will be denied
enforcement in American courts, so long as the government is not the suitor. Since nonrecognition itself neither
prevents private transactions nor bars the courts from considering them, such transactions are unenforceable only if
they violate a public policy.

- No. The defendant, however, had not alleged that its transaction with the East German Corporation or the
assignment to Upright of the trade acceptance was illegal or violative of publi c policy. In order for such transaction
26
or the assignment to violate national or public policy, it must be shown either to violate our laws or some definite
policy. Indeed, during the argument of the case, it was stated that the typewriters had been shippe d openly and
passed regularly through the US Customs. Defendants was obviously hard put to find a policy that forbade suit or
recovery against him if the transaction was both permitted and facilitated by the federal government; without
alleging such a policy, however, he could not prevail.

ASSIGNMENT SHEET 3

1. Vienna Convention on the Law on Treaties 1969

2. Vienna Convention on the Law on Diplomatic Relations 1961: Arts. 9, 22, 24, 27, 29 - 32, 39, 41 - 42

3. Vienna Convention on the Law on Consular Relat ions

4. Restoration of the lawful rights of the People’s Republic of China in the United Nations, U.N. General
Assembly Resolution 2758

5. The Alma-Alta Declaration (December 21, 1991)

6. World Health Organization v. Aquino, G.R. No. L -35131, November 29, 1972

FACTS:

On June 6, 1972 a restraining order enjoining respondent from executing the search warrant in question was issued
by the Court upon the filing of a petition. Respondents COSAC officers filed their answer joining issue against
petitioners and seeking to justify their act of applying for and securing from respondent judge the warrant for the
search and seizure of ten crates consigned to petitioner Verstuyft and stored at the Eternit Corporation warehouse
on the ground that they "contain large quan tities of highly dutiable goods" beyond the official needs of said petitioner
"and the only lawful way to reach these articles and effects for purposes of taxation is through a search warrant.

It is undisputed in the record that petitioner Dr. Leonce Verst uyft, who was assigned by the WHO to the Regional
Office in Manila as Acting Assistant Director of Health Services, is entitled to diplomatic immunity, pursuant to the
Host Agreement between the Philippine Government and the World Health Organization. Such diplomatic immunity
carries with it, among other diplomatic privileges and immunities, personal inviolability, inviolability of the official's
properties, exemption from local jurisdiction, and exemption from taxation and customs duties.

When petitioner Verstuyft's personal effects contained in twelve (12) crates entered the Philippines as
unaccompanied baggage, they were accordingly allowed free entry from duties and taxes. The crates were directly
stored at the Eternit Corporation's warehouse at Mandaluy ong, Rizal, "pending his relocation into permanent
quarters upon the offer of Mr. Berg, Vice President of Eternit who was once a patient of Dr. Verstuyft in the Congo.

Nevertheless, respondent judge issued upon application on the same date of respondents C OSAC officers search
warrant for alleged violation of Republic Act 4712 amending section 3601 of the Tariff and Customs Code directing
the search and seizure of the dutiable items in said crates.

Upon protest of Dr. Francisco Dy, WHO Regional Director for the Western Pacific with station in Manila, Secretary of
Foreign Affairs Carlos P. Romulo, personally wired on the same date respondent Judge advising that "Dr. Verstuyft is
entitled to immunity from search in respect of his personal baggage as accorded to members of diplomatic missions"
pursuant to the Host Agreement and requesting suspension of the search warrant order "pending clarification of the
matter from the ASAC." but the respondent judge issued his order of the same date maintaining the effectivit y of the
search warrant issued by him, unless restrained by a higher court.

At the hearing thereof, the Office of the Solicitor General appeared and filed an extended comment stating the official
position of the executive branch of the Philippine Governmen t that petitioner Verstuyft is entitled to diplomatic
immunity, he did not abuse his diplomatic immunity, and that court proceedings in the receiving or host State are

27
not the proper remedy in the case of abuse of diplomatic immunity and thereby accordingl y joined Petitioner Dr.
Verstuyft’s prayer for the quashal of the search warrant.

Petitioner Verstuyft has in this Court been joined by the World Health Organization (WHO) itself in full assertion of
petitioner Verstuyft's being entitled "to all privilege s and immunities, exemptions and facilities accorded to
diplomatic envoys in accordance with international law" under section 24 of the Host Agreement.

ISSUE:

WON the Petitioner, under Sec. 24 of the Host Agreement between the Philippines and WHO is entitl ed to all
privileges and immunities, exemptions and facilities accorded to diplomatic envoys in accordance with international
law and thereby exempted from search and seizure?

HELD:

Yes. The executive branch of the Philippine Government has expressly recog nized that petitioner Verstuyft is entitled
to diplomatic immunity, pursuant to the provisions of the Host Agreement. The Department of Foreign Affairs
formally advised respondent judge of the Philippine Government's official position that "Dr. Verstuyft c annot be the
subject of a Philippine court summons without violating an obligation in international law of the Philippine
Government" and asked for the quashal of the search warrant, since his personal effects and baggages after having
been allowed free entry from all customs duties and taxes, may not be baselessly claimed to have been "unlawfully
imported" in violation of the tariff and customs code as claimed by respondents COSAC officers. The Solicitor -General,
as principal law officer of the Government, likewise expressly affirmed said petitioner's right to diplomatic immunity
and asked for the quashal of the search warrant.

It is a recognized principle of international law and under our system of separation of powers that diplomatic
immunity is essentially a political question and courts should refuse to look beyond a determination by the executive
branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive
branch of the government as in the case at bar , it is then the duty of the courts to accept the claim of immunity upon
appropriate suggestion by the principal law officer of the government, the Solicitor General in this case, or other
officer acting under his direction.

Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention
of property, as to embarrass the executive arm of the government in conducting foreign relations, it is accepted
doctrine that "in such cases the judicial department of (this) government follows the action of the political branch
and will not embarrass the latter by assuming an antagonistic jurisdiction."

the Philippine Government is bound by the procedure laid down in Article VII of the Convention on the Privileges and
Immunities of the Specialized Agencies of the United Nations for consultations between the Host State and the United
Nations agency concerned to determine, in the first instance the fact of occurrence of the abuse alleged, and if so,
to ensure that no repetition occurs and for other recourses. This is a treaty commitment voluntarily assumed by the
Philippine Government and as such, has the force and effect of law.

The seriousness of the matter is underscored when the provisions of Republic Act 75 enacte d since October 21, 1946
to safeguard the jurisdictional immunity of diplomatic officials in the Philippines are taken into account. Said Act
declares as null and void writs or processes sued out or prosecuted whereby inter alia the person of an ambassador
or public minister is arrested or imprisoned or his goods or chattels are seized or attached and makes it a penal
offense for "every person by whom the same is obtained or prosecuted, whether as party or as attorney, and every
officer concerned in executing it" to obtain or enforce such writ or process.

The Court, therefore, holds that respondent judge acted without jurisdiction and with grave abuse of discretion in
not ordering the quashal of the search warrant issued by him in disregard of the diplomati c immunity of petitioner
Verstuyft.

7. Liang v. People of the Philippines, G.R. No. 125865, January 28, 2000
28
Facts: Jeffrey Liang (Huefeng) is an economist working in Asian Development Bank (ADB). Sometime in 1994, he was
charged before the MeTC of Mandaluyong City with two counts of grave oral defamation for allegedly uttering
defamatory words against his co-worker, Joyce Cabal. After being arrested by virtue of a legally issued warrant, he
posted bail at P2,400 per criminal charge, and was rele ased to the custody of the Security Officer of ADB.

The next day, the MeTC judge received an "office of protocol" from the DFA stating that petitioner is covered by
immunity from legal process under Section 45 of the Agreement between the ADB and the Phil ippine Government
regarding the Headquarters of the ADB in the country. The MeTC judge, without notice to the prosecution, dismissed
the two criminal cases.

The prosecution then filed a MR which was opposed by the DFA. When the said MR was denied, the pro secution filed
a Petition for Certiorari and Mandamus with the RTC of Pasig City. The said RTC set aside the MeTC rulings and
ordered the latter court to enforce the warrant of arrest it earlier issued.

Subsequently, the petitioner elevated the case to th e Supreme Court through a Petition for Review arguing that he
is covered by immunity under the said agreement and that no preliminary investigation was held before the criminal
cases were filed in court.

Issue: Whether or not the petitioner is covered by t he immunity under the agreement

Held: NO. The courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is
covered by any immunity. The DFA's determination that a certain person is covered by immunity is only prelimin ary
which has no binding effect in courts.

It has been ruled that the mere invocation of the immunity clause does not result in the dropping of the charges.
Under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this Article experts and consultants performing
missions for the Bank shall enjoy the following privileges and immunities:

a.) immunity from legal process with respect to acts performed by them in their official capacity except when
the Bank waives the immunity.

The immunity mentioned therein is not absolute, but subject to the exception that the acts was done in "official
capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of Section 45(a). Thus, the
prosecution should have been given the chance to rebut the DFA protocol and it must be accorded the opportunity
to present its controverting evidence, should it so desire.

Under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petit ioner is such, enjoys
immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any professional
or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions . As
already mentioned above, the commission of a crime is not part of official duty.

Hence, the Supreme Court denied the Petition for Review.

8. United States v. Tehran, ICJ Rep. 1980

9. Radwan v. Radwan, [1972] 3 All ER 967, Family Division

AUTHOR’S NOTE: Mr. Radwan was an Egyptian national who entered into a polygamous marriage with an English
woman in the Egyptian consulate in Paris.

Mr. Radwan subsequently moved to London. He entered the Egyptian consulate there, for the purpose of divorcing
his English (second) wife. He thus employed the “talaq” procedure. In her absence, he orally decreed, three times,
that they were divorced. This talaq procedure constituted a valid divorce under the laws of Egypt —but not under
English law.

29
Several years later, his English wife filed her own divorce suit in the English courts, anticipating a more favorable
divorce decree under English law than under Egyptian law. Her English lawyer argued that the talaq “divorce,” while
performed within the Egyptian consulate in London, w as not entitled to recognition under English law. It should not
be recognized as a divorce performed “outside of ” England. Mr. Radwan, hoping to avoid a comparatively unfavorable
English divorce decree, responded to this “wife’s” suit on the basis that he had already obtained a valid divorce. Thus,
he argued, his prior talaq divorce was effective, because it was legally performed on “Egyptian territory” (i.e., in
Egypt’s consulate in London).

The court’s footnotes are omitted.

COURT’S OPINION:

I have read the relevant subparagraph of the petition whereby the talaq divorce is pleaded. The husband put in
evidence the affidavit of Mustapha Kamil Abdul Fata, Deputy Consul General of the Consulate General of the United
Arab Republic of Egypt in Kensington Palace Gardens in London. In it he swore [in his capacity as an expert on Egyptian
law] as follows:

(1) The Egyptian Consulate in London is regarded as being Egyptian territory on Egyptian soil.

(2) The divorce … registered in Cairo … is valid and recognised by Egyptian law. …

I also received the affidavit of Jamil Nasir, a person qualified in Egyptian law. In that affidavit he says that … under
Egyptian law the Consulate General of the United Arab Republic in London is regarded as Egyptian territory. He does
not give any reasons for that opinion, but I note that it corresponds with the [above quoted] statement of the deputy
consul of the Consulate General in London. …

The facts are as follows. The husband was born in Cairo. He is and at all material times was a Mohammedan. He was
and remains a subject of the United Arab Republic. … On 1st [of ] April 1970 he entered the Egyptian Consulate in
London; the procedure stated in the affidavit of the deputy consul of the Consulate General was followed. The
husband three times declared the prescribed [talaq] form of divorce in the presence of two witnesses. All the steps
were carried out in accordance with Egyptian law. After the prescribed 90 days the divorce was finalised in accordance
with Egyptian law, and in accordance with that law it was no impediment to the efficacy of the proceedings that the
wife knew nothing about it at all.

The question for my decision is whether by English law the Consulate General of the United Arab Republic is part of
a country outside the British Isles within the meaning of the Recognition of Divorces and Legal Separations Act of
1971. By that Act the relevant sections providing for recognition will have effect in respect of overseas divorces if
they have been obtained by means of judicia l or other proceedings in any country outside the British Isles, and it is
necessary for the efficacy of the talaq divorce that it should have been obtained outside the British Isles by reason
of the fact that at the material time the husband had acquired English domicile [emphasis supplied by author].

Curiously, the question has not arisen for decision in England before, that is, the question whether the premises of
an embassy or consulate are part of the territory of the sending state as compared to the t erritory of the receiving
state.

I quote and adopt the observations of [legal commentator] Mr J E S Fawcett:

There are two popular myths about diplomats and their immunities which we must clear away: one is that an embassy
is foreign territory, and the oth er is that a diplomat can incur no legal liabilities in the country in which he is serving.
The first is a confusion between territory or property and jurisdiction over it, and it is important to clarify it for it
has sometimes arisen over ships and aircra ft. The building occupied by a foreign embassy and the land on which it
stands are part of the territory of what we call the receiving state: it is therefore under the jurisdiction of that state.
But the members of the mission and their activities in the e mbassy are primarily under the control and jurisdiction
of the sending state. International law avoids conflict between these jurisdictions by laying down rules to cover the
whole field of diplomatic relations. These rules have been embodied in the Vienna Convention [on Diplomatic
30
Relations of ] 1961, which may be taken as reflecting existing law and practice. This Convention, and that on Consular
Relations drawn up in 1963, are among the first steps … in the successful codification of international law. Th e
premises of a mission are inviolable, and the local authorities may enter them only with the consent of the head of
the mission. But this does not make the premises foreign territory or take them out of the reach of the local law for
many purposes: for example, a commercial transaction in an embassy may be governed by the local law, particularly
tax law; marriages may be celebrated there only if conditions laid down by the local law are met; and a child born in
it [the diplomatic premises] will, unless hi s father has diplomatic status, acquire the local nationality.

Judge Cummins then considered similar cases involving this issue arising in other countries. This is a useful illustration
of how a decision maker resorts to customary State practice as a basis for ascertaining the content of International
Law.

RADWAN v RADWAN

· FOC : Facts: The husband, a Moslem Egyptian national who was domiciled in Egypt, married the wife, a British
national with an English domicile, in a Moslem ceremony in the Egyptian Consu late in Paris in 1951. The husband
subsequently acquired a domicile in England, and in 1970 obtained a talaq divorce at the Consulate General of the
United Arab Republic in London which complied with the procedure required by Egyptian law. The wife then fi led a
petition for divorce in the Family Division of the High Court, and the husband cross -petitioned.

· ISSUE : Did the marriage valid which will rationale the divorce’s petition?

· PRINCIPLE : The marriage is valid as per the test of Intended Matrimonial Home test. Here, according to the
Egyptian law, a country where the couple intended to have their matrimonial home, the polygamous marriage is valid.
Thus, divorce is claimable.

1.6 A foreign embassy or consulate cannot be regarded as a part of a country outside the British Isles for the purposes
of s.45 of the Family Law Act 1986. A divorce obtained at a foreign embassy or consulate in England cannot therefore
be regarded as valid in English law. The court case of Radwan -v- Radwan, in which a Talaq divorce was obtained at
the United Arab Republic Consulate -General in this country, led to this decision. However, where the hearing has
taken place in another country and the embassy has merely acted as a Registry Office in issuing the divorce document,
the divorce may be regarded as valid.

10. Art. 2(4) and Art. 51 of the U.N. Charter

ASSIGNMENT SHEET 4

1. Articles 1 and 2 of the U.N. Charter

2. Article IV of the 1987 Philippine Constitution

3. Republic Act No. 9225

4. 1954 Convention on the Status of Statele ss Persons

5. 1961 Convention on the Reduction of Statelessness

6. UN Convention on the Rights of the Child

7. Oetjen v. Central Leather Co., 246 U.S. 297

DOCTRINE: Retroactive Effect of Recognition

The principles of international law that when a governmen t which originates in revolution or revolt is recognized by
the political department of our government as the de jure government of the country in which it is established, such

31
recognition is retroactive in effect and validates all the actions and conduct of the government so recognized from
the commencement of its existence.

Facts:

They are suits in replevin and involve the title to two large consignments of hides, which the plaintiff in error claims
to own as assignee of Martinez & Co., a partnership engaged in business in the city of Torreon, Mexico, but which
the defendant in error claims to own by purchase from the Finnegan -Brown Company, a Texas corporation which it
is alleged purchased the hides in Mexico from General Francisco Villa on January 3, 1914.

February 23, 1913- Madero, President of the Republic of Mexico, was assassinated; that immediately thereafter
General Huerta declared himself Provisional President of the Republic and took the oath of office as such; that on
the 26th day of March following General Carranza, who was then governor of the state of Coahuila, inaugurated a
revolution against the claimed authority of Huerta and in a 'Manifesto Addressed to the Mexican Nation' proclaimed
the organization of a constitutional government under 'the plan of Guadalupe,' and that civil war was at once entered
upon between the followers and forces of the two leaders. When General Carranza assumed the leadership of what
were called the Constitutionalist forces, he commissioned General Villa his repr esentative, as 'Commander of the
North,' and assigned him to an independent command in that part of the country.

Such progress was made by the Carranza forces that in the autumn of 1913 they were in military possession, as the
record shows, of approximately two-thirds of the area of the entire country, with the exception of a few scattered
towns and cities, and after a battle lasting several days the city of Torreon in the state of Coahuila was captured by
General Villa on October 1 of that year.

Immediately after the capture of Torreon, Villa proposed levying a military contribution on the inhabitants, for the
support of his army, and thereupon influential citizens, preferring to provide the required money by an assessment
upon the community, to having th eir property forcibly seized, called together a largely attended meeting and after
negotiations with General Villa as to the amount to be paid, an assessment was made on the men of property of the
city, which was in large part promptly paid.

Martinez, the owner from whom the plaintiff in error claims title to the property involved in this case, was a wealthy
resident of Torreon and was a dealer in hides in a large way. Being an adherent of Huerta, when Torreon was captured
Martinez fled the city and failed to pay the assessment imposed upon him, and it was to satisfy this assessment that,
by order of General Villa, the hides in controversy were seized and on January 3, 1914, were sold in Mexico to the
Finnegan- Brown Company. They were paid for in Mexico, a nd were thereafter shipped into the United States and
were replevied, as stated.

They are brought to this court on the theory that the claim of title to the hides by the defendant in error is invalid
because based upon a purchase from General Villa, who, i t is urged, confiscated them contrary to the provisions of
the Hague Convention of 1907 respecting the laws and customs of war on land; that the judgment of the state court
denied to the plaintiff in error this right which he 'set up and claimed' under the Hague Convention or treaty; and
that this denial gives him the right of review in this court.

Moreover, these hides were seized by the Carranza government, then engaged in Civil War and sold to an American
firm which brought then to New Jersey. The petiti oner claims that the seizure was invalid. However, at the time of
the seizure, the Carranza government controlled about two -thirds of Mexico but there was no government in that
country recognized by US. On October 19, 1915, the government of the United Sta tes recognized the government of
Carranza as the de facto government of the Republic of Mexico, and as the de jure government on August 31, 1917.

Issue: WON the seizure is valid provided that the government is a de jure government?

Held:

• The principles of international law that when a government which originates in revolution or revolt is
recognized by the political department of our government as the de jure government of the country in which it is
32
established, such recognition is retroac tive in effect and validates all the actions and conduct of the government so
recognized from the commencement of its existence.

• Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of
one country will not sit in judgment on the acts of the government of another done within its own territory. Redress
of grievances by reason of such acts must be obtained through the means open to be available of by sovereign powers
as between themselves.

• In the case at bar, we have a duly commissioned military commander of what must be accepted as the
legitimate government of Mexico, in the progress of a revolution, and when conducting active independent
operations, seizing and selling in Mexico, as a military contribu tion, the property in controversy, at the time owned
and in the possession of a citizen of Mexico, the assignor of the plaintiff in error. Plainly this was the action, in
Mexico, of the legitimate Mexican government when dealing with a Mexican citizen, and , as we have seen, for the
soundest reasons, and upon repeated decisions of this court such action is not subject to re -examination and
modification by the courts of this country.

• To permit the validity of the acts of one sovereign state to be reexamined and perhaps condemned by the
courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of
nations.

• It is not necessary to consider, as the New Jersey court did, the validity of the levy of the contribut ion made
by the Mexican commanding general, under rules of international law applicable to the situation, since the subject is
not open to re-examination by this or any other American court.

8. Poe-Llamanzares v. Comelec, G.R. No. 221697, March 8, 2016

FACTS OF THE CASE:

Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn

September 3, 1968 infant in the Parish Church of Jaro, Iloilo by a certain Edgardo Militar. Custody over
petitioner was passed on by Edgardo to his relati ves, Emiliano Militar and his wife.

Emiliano Militar reported and registered petitioner as a foundling with the Office of the
September 6, 1968
Civil Registrar of Iloilo City (OCR -Iloilo).

When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a.
1973 Fenando Poe, Jr.) and Jesusa Sonora Poe (Susan Roces) filed a petition for her adoption with
the Municipal Trial Court (MTC) of San Juan City.

The Poe spouses’ petition for adoption was granted by the trial court and ordered that
May 13, 1974 petitioner's name be changed from "Mary Grace Natividad Contreras Militar" to "Mary
Grace Natividad Sonora Poe."

Having reached the age of 18, petitio ner registered as a voter with the local COMELEC Office
December 13, 1986
in San Juan City.

Petitioner applied for and was issued Philippine Passport No. F9272876 by the Department
April 4, 1988
of Foreign Affairs

Initially, the petitioner enrolled and pursued a degree in Development Studies at the
1988-1991 University of the Philippines but opted to continue her studies abroad and left for the U.S.
in 1988.

Petitioner graduated in 1991 from Boston College in Chestnuts Hill

33
 Petitioner married Teodoro Misael Daniel V. Llamanzares, a citizen of both the Philippines
July 27, 1991
and the U.S., at Sanctuario de San Jose Parish in San Juan City.

Desirous of being with her husband who was then based in the U.S., the couple flew back
July 29, 1991
to the U.S.

April 16, 1992 Petitioner gave birth to her eldest child Brian Daniel

April 5, 1993 Renewed her Philippines passport.

May 19, 1998 Renewed her Philippines passport.

July 10, 1998 Petitioner gave birth to daughter Hanna MacKenzie.

October 18, 2001 Petitioner became a naturalized American citizen

Petitioner came back to the Philippines together with Hanna to support her father's
April 8, 2004 – July
candidacy for President in the May 2004 elections. It was during this time t hat she gave
8, 2004
birth to her youngest daughter Anika.

December 13, 2004 Petitioner rushed back to the Philippines upon learning of her father's deteriorating medical
– February 3, 2005 condition who died shortly.

Petitioner and husband began preparing for their resettlement including notification of
June 27, 1905
their children's schools that they will be transferring to Philippine schools

Petitioner came home to the Philippines and without delay, secured a Tax Identification
May 24, 2005
Number from the Bureau of Internal Revenue.

The petitioner's husband officially informed the U.S. Postal Service of the family's change
March 2006 and abandonment of their address in the U.S. petitioner and her husband acquired a 509 -
square meter lot in Corinthian Hills, Quezon City where they built their family home.

Petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to
July 7, 2006
Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re -acquisition Act of 2003.

The Bureau of Immigration acted favorably on petitioner's petitions and declared that she
July 18, 2006
is deemed to have reacquired her Philippine citizenship.

Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City. She also
August 31, 2006
secured from the DFA a new Philippine Passport bearing the No. XX4731999.

President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie and
October 6, 2010
Television Review and Classification Board (MTRCB).

Before assuming her post, petitioner executed an "Affidavit of Renunciation of Allegiance

October 20, 2010 to the United States of America and Renunciation of American Citizenship" before a notary
public in Pasig City.

Petitioner submitted the said affidavit to the Bureau of Immigration and took her oath of
October 21, 2010 office as Chairperson of the MTRCB. From then on, petitioner stopped using her American
passport.

34
 The petitioner executed before the Vice Consul of the U.S. Embassy in Manila an
July 12, 2011 "Oath/Affirmation of Renunciation of Nationality of the United States" and stated that she
in the Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to present.

The U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality of the United
December 9, 2011
States" effective 21 October 2010.

The petitioner filed with the COMELEC her Certificate of Candidacy (COC) for Senator for
October 2, 2012 the 2013 Elections wherein she answered "6 years and 6 months" to the question "Period
of residence in the Philippines before May 13, 2013."

October 15, 2015 Petitioner filed her COC for the Presidency for the May 2016 Elections.

In her COC, the petitioner declared that she is a natural -born citizen and that her residence
in the Philippines up to the day before 9 May 2016 would be ten (10) years and eleven (11)
months counted from 24 May 2005.

Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several COMELEC cases
against her which were the subject of these consolidated cases.

ISSUES: With regard to: a) being a foundling. YES.

RATIONALE: As a matter of law, foundlings are as a class, natural -born citizens.

The Family Code of the Philippines has a whole chapter on Paternity and Filiat ion. That said, there is more than
sufficient evidence that petitioner has Filipino parents and is therefore a natural -born Filipino.

The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether such parents
are Filipinos. Under Section 4, Rule 128:

Sec. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to induce
belief in its existence or non -existence. Evidence on collateral matters shall not be allowed, except when i t
tends in any reasonable degree to establish the probability of improbability of the fact in issue.

Parenthetically, the burden of proof was on private respondents to show that petitioner is not a Filipino citizen. The
private respondents should have show n that both of petitioner's parents were aliens. Her admission that she is a
foundling did not shift the burden to her because such status did not exclude the possibility that her parents were
Filipinos, especially as in this case where there is a high pro bability, if not certainty, that her parents are Filipinos.

The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA) that from 1965 to 1975,
the total number of foreigners born in the Philippines was 15,986 while the total number of Filipinos born in the
country was 10,558,278. The statistical probability that any child born in the Philippines in that decade is natural -
born Filipino was 99.83%.

Domestic laws on adoption also support the principle that foundlings are F ilipinos. These laws do not provide that
adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in the first place to be adopted.

Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was abandoned as an
infant in a Roman Catholic Church in Iloilo City. She also has typical Filipino features: height, flat nasal bridge, straight
black hair, almond-shaped eyes and an oval face.

Foundlings are likewise citizens under international law.

35
The Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the generally
accepted principles of international law and binding on the State.

Universal Declaration of Human Rights Article 15:

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 24
thereof provide for the right of every child "to acquire a nationality:"

To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a theoretical
chance that one among the thousands of these foundlings might be the child of not ju st one, but two, foreigners is
downright discriminatory, irrational, and unjust. It just doesn't make any sense. Given the statistical certainty - 99.9%
- that any child born in the Philippines would be a natural born citizen, a decision denying foundlings such status is
effectively a denial of their birthright. There is no reason to sacrifice the fundamental political rights of an entire
class of human beings.

While the 1935 Constitution's enumeration is silent as to foundlings, there is no restrictive lan guage which would
definitely exclude foundlings either.

9. United States (Alexander Tellech) v. Austria and Hungary

This claim is put forward by the United States on behalf of Alexander Tellech.

FACTS:

Tellech was born in the United States of Austrian parents on May 14, 1895. Under the Constitution and laws of the
United States he was by birth an American national. Under the laws of Austria he also possessed Austrian nationality
by parentage. This created a con flict in citizenship, frequently described as "dual nationality".

In August, 1914, the claimant, while residing in Austria a short distance from the Russian border, was subjected to
preventive arrest as an agitator engaged in propaganda in favor of Russia. He was interned and confined in internment
camps for 16 months. He then took the oath of allegiance to the Emperor of Austria and King of Hungary and was
impressed into service in the Austro -Hungarian army. A decision of the sharply controverted claim tha t this oath was
taken under duress and that he protested that he was an American citizen.

ISSUE: WON Tellech is entitled to a compensation for the time lost and for alleged suffering and privation to which
he was subjected, first through internment in Aust ria, and then through enforced military service in the Austro -
Hungarian army.

HELD: Citizenship is determined by rules prescribed by municipal law. Under the law of Austria, to which claimant
had voluntarily subjected himself, he was an Austrian citizen. T he Austrian and the Austro-Hungarian authorities were
well within their rights in dealing with him as such. Possessing as he did dual nationality, he voluntarily took the risk
incident to residing in Austrian territory and subjecting himself to the duties and obligations of an Austrian citizen
arising under the municipal laws of Austria.

Under the Treaty of Vienna and the Treaty of Budapest the Government of Austria and the Government of Hungary
are not obligated to pay to the Government of the United Stat es any amount on behalf of the claimant herein.

10. The Nottebohm Case (Liechtenstein v. Guatemala)

Doctrine:

36
Doctrine of active or effective nationality wherein, The courts of third States, when they have before them an
individual whom two other States h old to be their national, seek to resolve the conflict by having recourse to
international criteria and their prevailing tendency is to prefer the real and effective nationality.

Facts:

Nottebohm was born at Hamburg on September 16th, 1881. He was German by birth, and then he applied for
naturalization in Liechtenstein. In 1905 he went to Guatemala. He took up residence there and made that country
the headquarters of his business activities. these activities developed in the field of commerce, banking and
plantations. Having been an employee in the firm of Nottebohm Hermanos, which had been founded by his brothers
Juan and Arturo, he became their partner and later was made head of the firm. After 1905 he sometimes went to
Germany on business and to other co untries for holidays. He continued to have business connections in Germany. He
paid a few visits to a brother who had lived in Liechtenstein since 1931. Some of his other brothers, relatives and
friends were in Germany, others in Guatemala. He himself cont inued to have his fixed abode in Guatemala until 1943,

In 1939, after having provided for the safeguarding of his interests in Guatemala by a power of attorney given to the
firm of Nottebohm Hermanos, he left that country at a date fixed by Counsel for Lie chtenstein as at approximately
Between March and April, when he seems to have gone to Hamburg, and later to have paid a few brief visits to Vaduz
[the capital city of Liechtenstein] It was then, a little more than a month after the opening of the second Wo rld War
marked by Germany's attack on Poland, that his attorney, Dr. Marxer, submitted an application for naturalization on
behalf of Nottebohm.

(additional info)

On 1939, Nottebohm, “resident in Guatemala since 1905 (at present residing as a visitor with his brother, Hermann
Nottebohm, in Vaduz),” applied for admission as a national of Liechtenstein and, at the same time, for the previous
conferment of citizenship in the Commune of Mauren. He sought dispensation from the condition of three years’
residence as prescribed by law. He submitted a statement of the Credit Suisse in Zurich concerning his assets, and
undertook to pay 25,000 Swiss francs to the Commune of Mauren, 12,500 Swiss francs to the State, to which was to
be added the payment of dues in con nection with the proceedings. He further stated that he had made “arrangements
with the Revenue Authorities of the Government of Liechtenstein for the conclusion of a formal agreement to the
effect that he will pay an annual tax of naturalization (Swiss fr ancs 1,000), of which Swiss francs 600 are payable to
the Commune of Mauren and Swiss francs 400 are payable to the Principality of Liechtenstein, He further undertook
to deposit as security a sum of 30,000 Swiss francs. He also gave certain general inform ation as to his financial
position and indicated that he would never become a burden to the Commune whose citizenship he was seeking.
Lastly, he requested "that naturalization proceedings be initiated and concluded before the Government of the
Principality and before the Commune of Mauren without delay, that the application be then placed before the Diet
with a favorable recommendation and, finally, that it be submitted with all necessary expedition to His Highness the
Reigning Prince.''

On October 20th, 1939, Mr. Nottebohm took the oath of allegiance and a final arrangement concerning liability to
taxation was concluded on October 23rd. A certificate of nationality has also been produced, signed on behalf of the
Government of the Principality to the effect that Nottebohm was naturalized by Supreme Resolution of the Reigning
Prince dated October 13th, 1939.

Having obtained a Liechtenstein passport, Nottebohm had it visa -ed by the Consul General of Guatemala in Zurich
and returned to Guatemala at the beginnin g of 1940, where he resumed his former business activities and in particular
the management of the firm of Nottebohm Hermanos.

ISSUE: whether the nationality conferred on Nottebohm by Liechtenstein by means of a naturalization can be validly
invoked as against Guatemala, so that Liechtenstein is thereby entitled to exercise its protection in favor of
Nottebohm against Guatemala and therefore entitles it to seize the Court of a claim relating to him.

37
HELD: No, Guatemala is under no obligation to recognize a nationality granted in such circumstances. Liechtenstein
consequently is not entitled to extend its protection to Nottebohm vis -a-vis Guatemala and its claim must, for this
reason, be held to be inadmissible. the change of nationality was merely a subter fuge mandated by the war.
Naturalization was asked for not so much for the purpose of obtaining a legal recognition of Nottebohm’s membership
in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a national of a
belligerent State that of a national of a neutral State, with the sole aim of thus coming within the protection of
Liechtenstein but not of becoming wedded to its traditions, its interests, its way of life or of assuming the
obligations—other than fiscal obligations—and exercising the rights pertaining to the status thus acquired.

When Nottebohm thus presented himself before the Guatemalan authorities informing the Ministry of External
Affairs in Guatemala that he had adopted the nationality of Liechtenst ein, the latter had before them a private
individual: there did not thus come into being any relationship between governments. There was nothing in all this
to show that Guatemala then recognized that the naturalization conferred upon Nottebohm gave Liecht enstein any
title to the exercise of protection.

the Court must consider whether such an act of granting nationality by Liechtenstein directly entails an obligation on
the part of Guatemala to recognize its effect, namely, Liechtenstein's right to exercise its protection. Nationality has
its most immediate, its most far-reaching and, for most people, its only effects within the legal system of the State
conferring it. The naturalization of Nottebohm was an act performed by Liechtenstein in the exercise of i ts domestic
jurisdiction.

a State cannot claim that the rules it has thus laid down are entitled to recognition by another State unless it has
acted in conformity with this general aim of making the legal bond of nationality accord with the individual's g enuine
connection with the State which assumes the defense of its citizens by means of protection as against other States.

Naturalization is not a matter to be taken lightly. It involves his breaking of a bond of allegiance and his establishment
of a new bond of allegiance. In order to appraise its international effect, it is impossible to disregard the
circumstances in which it was conferred, the serious character which attaches to it, the real and effective, and not
merely the verbal preference of the individual seeking it for the country which grants it to him.

The essential facts that there’s no attachment between Liechten stein and nottebohm. (super summary)

At the date when he applied for naturalization, Nottebohm had been a German national from the time of his birth.
He had always retained his connections with members of his family who had remained in Germany and he had always
had business connections with that country. His country had been at war for more than a month, and there is nothing
to indicate that the application for naturalization then made by Nottebohm was motivated by any desire to dissociate
himself from the Government of his country.

He had been settled in Guatemala for 34 years. He had carried on his activities there. It was the main seat of his
interests. He returned there shortly after his naturalization, and it remained the center of his interests and of his
business activities. He stayed there until his removal as a result of war measures in 1943. He subsequently attempted
to return there, and he now complains of Guatemala's refusal to admit him. There, too, were several members of his
family who sought to safeguard his interests.

In contrast, his actual connections with Liechtenstein were extremely tenuous. No settled abode, no prolonged
residence in that country at the time of his application for naturalization: the application indicates that he was pay ing
a visit there and confirms the transient character of this visit by its request that the naturalization proceedings should
be initiated and concluded without delay. No intention of settling there was shown at that time or realized in the
ensuing weeks, months or years—on the contrary, he returned to Guatemala very shortly after his naturalization and
showed every intention of remaining there. If Nottebohm went to Liechtenstein in 1946, this was because of the
refusal of Guatemala to admit him. No indica tion is given of the grounds warranting the waiver of the condition of
residence, required by the 1934 Nationality Law, which waiver was implicitly granted to him. There is no allegation
of any economic interests or of any activities exercised or to be exe rcised in Liechtenstein, and no manifestation of
any intention whatsoever to transfer all or some of his interests and his business activities to Liechtenstein. It is
38
unnecessary in this connection to attribute much importance to the promise to pay the tax es levied at the time of
his naturalization.

The only links to be discovered between the Principality and Nottebohm are the short sojourns already referred to
and the presence in Vaduz of one of his brothers: but his brother's presence is referred to in hi s application for
naturalization only as a reference to his good conduct.

These facts clearly establish, on the one hand, the absence of any bond of attachment between Nottebohm and
Liechtenstein and, on the other hand, the existence of a long -standing and close connection between him and
Guatemala, a link which his naturalization in no way weakened. That naturalization was not based on any real prior
connection with Liechtenstein. In both respects, it was lacking in the genuineness requisite to an act of such
importance, if it is to be entitled to be respected by a State in the position of Guatemala. It was granted without
regard to the concept of nationality adopted in international relations.

11. The Canevaro Case

FACTS: Italy filed a diplomatic claim against Peru on behalf of Rafael Canevaro, who is a national of both states under
their municipal laws. Italy claimed that Rafael Canevaro was an Italian claimant to a debt owed by the Peruvian
government to the Jose Canevaro & Sons firm established in Lima, Peru and owned by Peruvians Jose Francisco
Canevaro and Cesar Canevaro, and Raphael Canevaro whose nationality was in question.

Rafael Canevaro was born in Peruvian territory, following the principle of nationality in art 34 of the Peruvian
Constitution wherein citizenship is determined by the place of birth, it follows that he is Peruvian. However, his
father was Italian and, following the principle of nationality in art 4 of the Italian Civil Code wherein citizenship is
determined by the nationality of the father, it follows that he is Italian. There now arises a conflict from divergent
municipal laws on nationality.

ISSUE: Whether or not Rafael Canevaro was an Italian claimant.

HELD: NO, the court held that Rafael Canevar o was not an Italian claimant.

He was of Peruvian nationality because there were several instances where he recognized and acted as a citizen of
said state:

a. He ran as a candidate for the Peruvian Senate which was granted exclusively for its nationals on ly and where
he succeeded in defending his election.

b. He accepted the office of Consul-General for the Netherlands which requires authorization by the Peruvian
Government and the Peruvian Congress.

The Court held that under these circumstances, whatever Rafael’s status as a national may be in Italy, the Government
of Peru has a right to consider him a Peruvian citizen and deny his status as an Italian claimant.

ASSIGNMENT SHEET 5

1. The Corfu Channel Case (U.K. v. Albania)

FACTS:

May 15th. 1946- Two British ships passed through Albania’s North Corfu Channel where Albanian’s fired at them. This
led to diplomatic discussions about the right of British ships to pass peacefully through Albanian waters.

October 22nd, 1946- a squadron of British warships (two cruisers and two destroyers), left the port of Corfu and
proceeded northward through a channel previously swept for mines in the North Corfu Strait.

Both destroyers were struck by mine and were heavily damaged. This incident resulted also in many deaths. The two
ships were mined in Albanian territorial waters in a previously swept and check -swept channel.

39
After the explosions of October 22nd, the United Kingdom Government sent a note to the Albanian Government, in
which it announced its intention to sweep the Corfu Channel shortly. The Albanian reply, which was received in
London on October 31st, stated that the Albanian Government would not give its consent to this unless the operation
in question took place outside Albanian territorial waters. Meanwhile , at the United Kingdom Government's request,
the International Central Mine Clearance Board decided, in a resolution of November 1st, 1946, that there should be
a further sweep of the Channel, subject to Albania's consent. The United Kingdom Government h aving informed the
Albanian Government, in a communication of November 10th, that the proposed sweep would take place on
November 12th, the Albanian Government replied on the 11th, protesting against this 'unilateral decision of His
Majesty's Government'. It said it did not consider it inconvenient that the British fleet should undertake the sweeping
of the channel of navigation, but added that, before sweeping was carried out, it considered it indispensable to
decide what area of the sea should be deemed to constitute this channel, and proposed the establishment of a Mixed
Commission for the purpose.

It ended by saying that any sweeping undertaken without the consent of the Albanian Government outside the
channel thus constituted, i.e., inside Albanian t erritorial waters where foreign warships have no reason to sail, could
only be considered as a deliberate violation of Albanian territory and sovereignty. After this exchange of notes,
'Operation Retail' took place on November 12th and 13th.

One fact of particular importance is that the North Corfu Channel constitutes a frontier between Albania and Greece,
that a part of it is wholly within the territorial waters of these States, and that the Strait is of special importance to
Greece by reason of the traffic to and from the port of Corfu.

The British government claimed the minefield which caused the explosions was laid between May 15th, 1946, and
October 22nd, 1946, by or with the approval or knowledge of the Albanian Government. Thus, Albania was responsible
for the explosions and loss of life and had to compensate the UK government.

In addition to the passage of the United Kingdom warships on October 22nd, 1946, the second question in the Special
Agreement relates to the acts of the Royal Navy in Albanian waters on November 12th and 13th, 1946 when the
British government carried out a minesweeping operation called 'Operation Retail' without the consent of Albania.

UK held the opinion the passage on October 22nd, 1946 was innocent and that accordi ng to rules of international law
it had the right to innocent passage through the North Corfu Channel as it is considered part of international highways
and does not need a previous approval of the territorial state.

The Albanian Government does not disp ute that the North Corfu Channel is a strait in the geographical sense; but it
denies that this Channel belongs to the class of international highways through which a right of passage exists, on
the grounds that it is only of secondary importance and not e ven a necessary route between two parts of the high
seas, and that it is used almost exclusively for local traffic to and from the ports of Corfu. Thus, a previous approval
of the territorial state is necessary.

ISSUES:

1. WON the North Corfu Channel should be considered part of international highways?

2. WON Albania is responsible under international law for the explosions which occurred on the 22nd October
1946 in Albanian waters and for the damage and loss of human life which resulted from them and is ther e
any duty to pay compensation?'

HELD:

1. Yes. The court analyses the geographical situation of the channel connects two parts of the high seas and in
fact, frequently being used for international navigation. Taking into account these various considerations, the
Court concludes that the North Corfu Channel should be considered as belonging to the class of international
40
 highways through which an innocent passage does not need special approval and cannot be prohibited by a
coastal State in time of peace.

2. Yes. The UK government claims that on October 22nd, 1946, Albania neither notified the existence of the
minefield, nor warned the British warships of the danger they were approaching. According to the principle
of state responsibility, they should have done all necessary steps immediately to warn ships near the danger
zone, more especially those that were approaching that zone. In fact, nothing was attempted by the Albanian
authorities to prevent the disaster. These grave omissions involve the international resp onsibility of Albania.

But Albania's obligation to notify shipping of the existence of mines in her waters depends on her having
obtained knowledge of that fact in sufficient time before October 22nd; and the duty of the Albanian coastal
authorities to warn the British ships depends on the time that elapsed between the moment that these ships
were reported and the moment of the first explosion. The Court therefore reaches the conclusion that Albania
is responsible under international law for the explosio ns which occurred on October 22nd, 1946, in Albanian
waters, and for the damage and loss of human life which resulted from them, and that there is a duty upon
Albania to pay compensation to the United Kingdom.

In the second part of the Special Agreement, the following question is submitted to the Court:

1. Has the United Kingdom under international law violated the sovereignty of the Albanian People's Republic
by reason of the acts of the Royal Navy in Albanian waters on the 22nd October and on the 12th and 13th
November 1946 and is there any duty to give satisfaction?

No. Albania was in fact in war with Greece which means that the coastal state was not in time of peace. UK had not
an innocent passage due to the way it was carried out. The court assessed th e manner of UK warships after they had
been shot at May 15th. Having thus examined the various contentions of the Albanian Government in so far as they
appear to be relevant, the Court has arrived at the conclusion that the United Kingdom did not violate t he sovereignty
of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946.

The United Kingdom Government does not dispute that 'Operation Retail' was carried out against the clearly
expressed wish of the Albanian Governm ent. It recognizes that the operation had not the consent of the international
mine clearance organizations, that it could not be justified as the exercise of a right of innocent passage, and lastly
that, in principle, international law does not allow a S tate to assemble a large number of warships in the territorial
waters of another State and to carry out minesweeping in those waters. The United Kingdom Government states that
the operation was one of extreme urgency, and that it considered itself entitle d to carry it out without anybody's
consent.

The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in
the past, given rise to most serious abuses and such as cannot, whatever be the present defe cts in international
organization, The United Kingdom Agent, in his speech in reply, has further classified 'Operation Retail' among
methods of self-protection or self-help. The Court cannot accept this defense either find a place in international law.

FUN FACT: The Corfu Channel case was the first dispute to be brought before the newly established International
Court of Justice - the successor to the Permanent Court of International Justice.

2. Western Sahara Case, 1975 ICJ (Advisory Opinion)

Facts: On December 17, 1974, the UN General Assembly by Resolution 3292 requested the ICJ to give an advisory
opinion on the following questions:

1. Was Western Sahara (Rio de Oro and Sakiet el Hamra) at the time of colonization by Spain a territory
belonging to no one? (terra nullius)

If the answer to the first question is in the negative,

41
2. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritian entity?

This request took place in the context of decolonization of Western Sahara , formerly a protectorate of Spain.
Morocco and Mauritania are rival claimants, both arguing that portions of the disputed area formed part of their
pre-colonial territories and seeking to have the former colony re -integrated to their respective national t erritories.

Held:1. Western Sahara at the time of colonization by Spain was not terra nullius.

2. [There are] legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory
of Western Sahara. [There are also] legal t ies between the Mauritanian entity … and the territory of Western
Sahara. [However, such] do not establish any tie of territorial sovereignty between the territory of Western Sahara
and the Kingdom of Morocco or the Mauritanian entity.

CASE EXERPTS

“Turning to Question I, the Court observes that the request specifically locates the question in the context of ‘the
time of colonization by Spain’, and it therefore seems clear that the [question has] to be interpreted by reference
to the law in force at that period.” According to State practice of that period, “territories inhabited by tribes or
peoples having a social and political organization were not regarded as terrae nullius. [I]n the case of such
territories the acquisition of sovereignty was not gen erally considered as effected unilaterally through "occupation"
of terra nullius by original title but through agreements concluded with local rulers.”

“In the present instance, the information furnished to the Court shows that at the time of colonizatio n Western
Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under
chiefs competent to represent them. It also shows that, in colonizing Western Sahara, Spain did not proceed on the
basis that it was establishing its sovereignty over terrae nullius.”

“The Court's answer to Question 1 is, therefore, in the negative and, in accordance with the terms of the request, it
will now turn to Question II.”

“Question II asks the Court to state ‘what were the le gal ties between this territory’—that is, Western Sahara—‘and
the Kingdom of Morocco and the Mauritanian entity’. The scope of this question depends upon the meaning to be
attached to the expression ‘legal ties’ in the context of the time of the colonizati on of the territory by Spain… It
appears to the Court that in Question II the words ‘legal ties’… must be understood as referring to such ‘legal ties’
as may affect the policy to be followed in the decolonization of Western Sahara.”

“Morocco's claim to ‘legal ties’ with Western Sahara … has been put to the Court as a claim to ties of sovereignty
on the ground of an alleged immemorial possession of the territory. This immemorial possession, it maintains, was
based not on an isolated act of occupation but on the public display of sovereignty, uninterrupted and uncontested,
for centuries… In support of this claim Morocco refers to a series of events stretching back to the Arab conquest of
North Africa in the seventh century A.D… [It invokes] inter alia the de cision of the Permanent Court of
International Justice in the Legal Status of Eastern Greenland case (P.C.I.J., Series A/B, No. 53), [maintaining] that
the historical material suffices to establish Morocco's claim to a title based ‘upon continued display o f authority.’”

“In the view of the Court, however, what must be of decisive importance in determining its answer to Question II is
not indirect inferences drawn from events in past history but evidence directly relating to effective display of
authority in Western Sahara at the time of its colonization by Spain and in the period immediately preceding that
time (cf. Minquiers and Ecrehos, Judgment, I.C.J. Reports 1953, p. 57).” (emphasis supplied)

In appreciating the evidence presented by Morocco, the Court took into account the special structure of the
Sherifian State, saying that “where sovereignty over territory is claimed, the particular structure of a State may be
a relevant element in appreciating the reality or otherwise of a display of State activity adduced as evidence of that
sovereignty.”

42
“[T]he Sherifian State at the time of the Spanish colonization of Western Sahara was a State of a special character...
Its special character consisted in the fact that it was founded on the common religious bond of Islam existing
among the peoples and on the allegiance of various tribes to the Sultan, through their caids or sheikhs, rather than
on the notion of territory.”

“As evidence of its display of sovereignty in Western Sahara, Morocco has invoked alleged acts of internal display
of Moroccan authority and also certain international acts said to constitute recognition by other states of its
sovereignty over the whole or part of the territory. The pr incipal indications of “internal” display of authority
invoked by Morocco consists of evidence alleged to show the allegiance of Saharan caids to the Sultan, … the
alleged imposition of Koranic and other taxes, and what were referred to as ‘military decisi ons’ said to constitute
acts of resistance to foreign penetration of the territories… Emphasis is also placed by Morocco on two visits of
Sultan Hassan I in person to the southern area of the Souss in 1882 and 1886 to maintain and strengthen his
authority in the Southern part of the realm, and on the dispatch of arms by the Sultan to … the south to reinforce
their resistance to foreign penetration.”

Having considered this evidence and the observations of the other States which took part in the proceedings, the
Court finds that neither the internal nor the international acts relied upon by Morocco indicate the existence at the
relevant period of either the existence or the international recognition of legal ties of territorial sovereignty
between Western Sahara and the Moroccan State. “Even taking account of the specific structure of the Sherifian
State, the material so far examined does not establish any tie of territorial sovereignty between Western Sahara
and that State. It does not show that Morocco disp layed effective and exclusive State activity in Western Sahara. It
does however provide indications that a legal tie of allegiance had existed at the relevant period between the
Sultan and some, but only some, of the nomadic peoples of the territory.” (em phasis supplied)

As to the various international agreements presented by Morocco claiming external recognition of the Sultan’s
alleged territorial sovereignty in Western Sahara, the Court ruled that “[the] agreements … are of limited value in
this regard; for it was not their purpose either to recognize an existing sovereignty over a territory or to deny its
existence. Their purpose, in their different contexts, was rather to recognize or reserve for one or both parties a
‘sphere of influence’ as understood in the practice of that time.”

The Court thereafter took up the question of what were the legal ties which existed between Western Sahara, at
the time of its colonization by Spain, and the Mauritanian entity. The term ‘Mauritanian entity’ was first def ined as
a term “used by the General Assembly to denote the cultural, geographical and social entity which existed at the
time in the region of Western Sahara and within which the Islamic Republic of Mauritania was later to be created.”
According to Mauritania, that entity, at the relevant period, was the Bilad Shinguitti or Shinguitti country, a distinct
human unit, characterized by a common language, way of life, religion and system of laws, featuring two types of
political authority: emirates and tribal groups. Recognizing that this entity did not constitute a State, Mauritania
nevertheless claims that the Bilad Shinguitti “was a community having its own cohesion, its own special
characteristics, and a common Saharan law concerning the use of water -holes, grazing lands and agricultural lands,
the regulation of inter-tribal hostilities and the settlement of disputes.” Mauritania suggests the concept of
“nation” and of “people” to explain the position of the Shinguitti people at the time of colonization.

“As to the legal ties between Western Sahara and [this entity] the views of Mauritania are as follows: At the time of
Spanish colonization, the Mauritanian entity extended from the Senegal River to the Wad Sakiet El Hamra. That
being so, the part of the territories now under Spanish administration which lie ‘to the south of the Wad Sakiet El
Hamra was an integral part of the Mauritanian entity’. The legal relation between the part under Spanish
administration and the Mauritanian entity was, therefore, ‘the simple one of inclusion’... That part and the present
territory of the Islamic Republic of Mauritania together constitute "the indissociable parts of the Mauritanian
entity".

“In the present case, the information before the Court discloses that, at the t ime of the Spanish colonization, there
existed many ties of a racial, linguistic, religious, cultural and economic nature between various tribes and emirates
whose peoples dwelt in the Saharan region which today is comprised within the Territory of Western Sahara and
43
the Islamic Republic of Mauritania. It also discloses, however, the independence of the emirates and many of the
tribes in relation to one another and, despite some forms of common activity, the absence among them of any
common institutions or organs, even of a quite minimal character. Accordingly, the Court is unable to find that the
information before it provides any basis for considering the emirates and tribes which existed in the region to have
constituted, in another phrase used by the Cou rt in the Reparation case, "an entity capable of availing itself of
obligations incumbent upon its Members" (ibid.). Whether the Mauritanian entity is described as the Bilad
Shinguitti, or as the Shinguitti "nation", as Mauritania suggests … the difficulty remains that it did not have the
character of a personality or corporate entity distinct from the several emirates and tribes which composed it .
The proposition, therefore, that the Bilad Shinguitti should be considered as having been a Mauritanian "enti ty"
enjoying some form of sovereignty in Western Sahara is not one that can be sustained.” (emphasis supplied)

Nevertheless, the General Assembly does not appear to have so framed Question II as to confine the question
exclusively to those legal ties whic h imply territorial sovereignty, which would be to disregard the possible
relevance of other legal ties to the decolonization process. “Accordingly, although the Bilad Shinguitti has not been
shown to have existed as a legal entity, the nomadic peoples of the Shinguitti country should , in the view of the
Court, be considered as having in the relevant period possessed rights, including some rights relating to the lands
through which they migrated. These rights … constituted legal ties between the territory of Western Sahara and the
‘Mauritanian entity.’”

Thus the Court, being mindful of the purpose for which the Advisory Opinion was sought, held in its penultimate
paragraph: “The materials and information presented to the Court show the existence, at the time of Spanish
colonization, of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory
of Western Sahara. They equally show the existence of rights, including some rights relating to the land, which
constituted legal ties between the Mauritanian entity, as understood by the Court, and the territory of Western
Sahara. On the other hand, the Court's conclusion is that the materials and information presented to it do not
establish any tie of territorial sovereign ty between the territory of Western Sahara and the Kingdom of Morocco or
the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of
resolution 1514 (XV) in the decolonization of Western Sahara and, i n particular, of the principle of self -
determination through the free and genuine expression of the will of the peoples of the Territory.”

3. The Island of Palmas Case (U.S. v. Netherlands), 2 R.I.A.A. 829 (Award of April 4, 1928)

Background

Palmas (Miangas) is an island of little economic value or strategic location. It located is 2.6 km in north –south length
and 1.0 km in east–west width. It had a population of about 750 in 1932, when the case was decided. The island is
located approximately 100 miles ESE of General Santos City, Philippines and 400 miles North of the Talaud Islands,
the next-northernmost part of Indonesia.

In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898) and Palmas is located within
the boundaries of that cession. In 1906, the United States discovered that the Netherlands also claimed sovereignty
over the island, and the two parties agreed to submit to binding arbitration by the Permanent Court of Arbitration.
On 23 January 1925, the two governments signed an agreement to that effect. Ratifications were exchanged in
Washington, D.C. on 1 April 1925. The agreement was registered in League of Nations Treaty Series on 19 May 1925.
The arbitrator in the case was Max Huber, a Swiss lawyer.

The question before the arbitrator was whether the Island of Palmas (Miangas) formed part of United States territory
(referring to what is now the Philippines) or Dutch territory (referring to what is now Indonesia).

US arguments

Right by discovery

44
On 1 January 1906, General Leonard Wood, Governor of Moro Province, Philippines, visited Palmas. According to the
Counter-Memorandum filed in the case by the United States, he had already visited the island in "about 1903". The
report of Wood to the Military Secretary, Unit ed States Army, on 26 January 1906, and the certificate delivered on
21 January by First Lieutenant Gordon Johnston to the native interrogated by the controller of the Sangi (Sanghi) and
Talauer (Talaut) Islands clearly show that the 21 January visit relat es to the island in dispute. The visit led to the US
statement that the Island of Palmas, undoubtedly included in the "archipelago known as the Philippine Islands," as
delimited by Article III of the Treaty of Peace between the United States and Spain, als o called "Treaty of Paris," and
ceded in virtue of the said article to the United States, was considered by the Netherlands as forming part of the
territory of its possessions in the East Indies.

The United States, as the successor to the rights of Spain o ver the Philippines, based its title in the first place on
discovery. The existence of sovereignty thus acquired was not merely confirmed by the most reliable cartographers
and authors and even by treaty, particularly the Treaty of Münster of 1648, which w as agreed to by Spain and the
Netherlands. According to the same argument, nothing had occurred of a nature to cause the acquired title to
disappear in international law. The United States argued the latter title at the moment when Spain ceded its title to
the Philippines by the Treaty of Paris in 1898. Thus, it was unnecessary to establish facts showing the actual display
of sovereignty precisely over the Island of Palmas.

Principle of contiguity

The American government finally maintained that Palmas forms a geographical part of the Philippine group and is
closer to the Philippines than to the Dutch East Indies. Thus, the principle of contiguity substantiated the claim that
it belongs to the power with sovereignty over the Philippines.

Dutch arguments

The Netherlands considered that the fact of discovery by Spain was not proved, and the same held for any other form
of acquisition. Even if Spain had ever the title, it had been lost. The principle of contiguity was contested.

The main argument was that the Net herlands, represented by the East India Company, possessed and exercised rights
of sovereignty from 1677 or even prior to 1648. Sovereignty arose out of conventions entered into with native princes
of Sangi (the main island of the Talautse Isles) to stabil ize the sovereignty of the Netherlands over the territories of
the princes, including Palmas (or Miangas). That state of affairs set up was claimed to be validated by international
treaties.

Issues

Huber had to determine "whether the Island of Palmas (or M iangas) in its entirety forms a part of territory belonging
to the United States of America or of Netherlands territory." Based on the arguments made by both states, there
were two main issues:

Did the inchoate title claimed by the United States prevail over a continuous and peaceful display of sovereignty
exercised by the Netherlands?

Did a title of contiguity have foundation in international law?

Decision

Huber ruled for the Netherlands:

For these reasons

The Arbitrator in conformity with Article I of the Special Agreement of 23 January 1925 DECIDES that : THE
ISLAND OF PALMAS (or MIANGAS) forms in its entirety a part of the Netherlands territory. done at The Hague,
this fourth day of April 1928. Max Huber, Arbitrator
45
 Michiels van Verduynen, Secretary -General.

Right by discovery

The United States argued that it held the island because it had received actual title by legitimate treaties from the
original discoverer of the island, Spain. The United States argued that Spain acquired title to Palmas when Spa in
discovered the island and the island was terra nullius. Spain's title to the island, because it was a part of the
Philippines, was then ceded to the United States under the Treaty of Paris (1898) after Spain's defeat in the Spanish –
American War. The arbitrator noted that no new international law invalidated the legal transfer of territory via
cession.

However, the arbitrator noted that Spain could not legally grant what it did not hold and the Treaty of Paris could
not grant Palmas to the United States i f Spain had no actual title to it. The arbitrator concluded that Spain held an
inchoate [1] title when Spain "discovered" Palmas. However, for a sovereign to maintain its initial title via discovery,
the arbitrator said that the discoverer had to actually exercise authority even by as simple an act as planting a flag
on the beach. Spain did not exercise authority over the island after making an initial claim after discovery and so the
American claim was based on relatively weak grounds.

Contiguity

The United States argued that Palmas was American territory because the island was closer to the Philippines than
to the Netherlands East Indies. The arbitrator said that there was no positive international law for the American view
of terra firma in which the nearest continent or island of considerable size gives title to the land in dispute. The
arbitrator held that mere proximity was not an adequate claim to land and noted that if the international community
followed the proposed American approach, that would lea d to arbitrary results.

Continuous and peaceful display of sovereignty

The Netherlands' primary contention was that it held actual title because the Netherlands had exercised authority
on the island since 1677. The arbitrator noted that the United States h ad failed to show documentation proving
Spanish sovereignty on the island except the documents that specifically mentioned the island's discovery.
Additionally, there was no evidence that Palmas was a part of the judicial or administrative organization of the
Spanish government of the Philippines. However, the Netherlands showed that the Dutch East India Company had
negotiated treaties with the local princes of the island since the 17th century and had exercised sovereignty, including
a requirement of Protestantism and the denial of other nationals on the island. The arbitrator pointed out that if
Spain had actually exercised authority, there would have been conflicts between the two countries, but none is
provided in the evidence.

Thus, a title that is inchoate cannot prevail over a definite title found on the continuous and peaceful display of
sovereignty. Peaceful and continuous display of territorial sovereignty is as good as title. However, discovery alone,
without a subsequent act, cannot suffice to pro ve sovereignty over the island. The territorial sovereignty of the
defendant, Netherlands, was not contested by anyone from 1700 to 1906 so the title of discovery at best an inchoate
title and does not prevail over the Netherlands claims of sovereignty.

4. Legal Status of Eastern Greenland Case (Denmark v. Norway), 1933 P.C.I.J. (Ser. A/B) No. 53

Doctrine: The Court considers it beyond all dispute that a reply of this nature given by the Minister for Foreign
Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in
regard to a question falling within his province, is binding upon the country to which the Minister belongs.

FACTS: The Royal Danish Government brought before the Permanent Court of International Justice a suit against the
Royal Norwegian Government on the ground that the latter Government had, on July 10th, 1931, published a
proclamation declaring that it had proceeded to occupy certain territories in Eastern Greenland, which, in the
contention of the Danish Government, were subject to the sovereignty of the Crown of Denmark . The Application,
after thus indicating the subject of the dispute, proceeds, subject to the subsequent presentation of any ca ses,
46
counter-cases and any other documents or evidence, to formulate the claim by asking the Court for judgment to the
effect that "the promulgation of the above -mentioned declaration of occupation and any steps taken in this respect
by the Norwegian Government constitute a violation of the existing legal situation and are accordingly unlawful and
invalid".

According to the royal Norwegian proclamation of July 10th, 1931, which gave rise to the present dispute, the
"country" the "taking possession" of which "is officially confirmed" and which is "placed under Norwegian
sovereignty" is "situated between Carlsberg Fjord on the South and Bessel Fjord on the North, in Eastern Greenland",
and extends from latitude 71° 30' to 75° 40' N. By "Eastern Greenland" is m eant the eastern coast of Greenland.

Established Facts of the Case as per the submissions of the Parties before the Court are as follows:

It is established that Greenland was discovered around 900 A.D. It was colonized 100 years later. Eric the Red of the
Norwegian origin was the best know colonist. At that time two settlements called Eystribygd and Vestribygd existed
as an independent State for some time; however, latter they became tributary to the kingdom of Norway in the 13th
century. These settlements disappeared before 1500.

From 1814 to 1380 the Kingdoms of Norway and Denmark were united by the same Crown. Despite disappearance of
the early settlements the sovereignty of the Crown was not doubted. Treaty of Lund of September 27th, 1697 where
Sweden recognized the rights of ancient rights and claims of the King of Denmark over Greenland is an apt example.

An autonomous “Board” was constituted by the King in 1774 to administer the trade activities in Greenland. The State
of Denmark had monopoly over the trade activities in Greenland. This resulted in establishing colonies, factories or
stations along the West coast latter efforts to reach the East coast were not successful. Norway contented that
Greenland in general mean the colonized part of the West co ast and where as Denmark viewed Greenland as
encompassing whole island of Greenland.

After a war that broke out between Denmark and Sweden and her allies, Denmark was made to sign the Peace Treaty
of Kiel in 1814 according to which the Kingdom of Norway, e xcluding Greenland, the Faeroe Isles and Iceland, was
seceded to Sweden. In the 19th century Greenland witnessed lot of Danish expeditions. Danish Government was
approached for permission to carryon trade or establish stations etc. In 1905 the Danish Minis ter issued a decree
specifying the limits of the territorial waters around Greenland. Denmark promulgated a law concerning the
administration of Greenland in 1908 and colonies on the West coast were divided into Northern and Southern
districts. On December 27th, 1915 the United States as a quid pro quo to Denmark’s cession of West Indian Islands
declared that it would not object to the Danish Government extending their political and economic interests to the
whole of Greenland. The Danish government in bila teral or multilateral commercial conventions relating to economic
questions had excluded Greenland from the operation of such conventions to secure the insertion of a stipulation.

Meanwhile Norway in apart from expeditions to the East coast from 1889 onwards, an expedition in 1922 resulted in
establishing a provisional wireless station at Mygg -Bukta to which Denmark lodged it protect immediately against
such erection. Later, large number of houses and cabins of Norwegian origin were built.

On July 10th, 1931 by a Norwegian Royal Resolution the King of Norway declared the occupation of the country in
Eastern Greenland between Carlsberg Fjord on the south and Bessel Fjord on the north.

Danish Government placed reliance on Palmas Island decision of the Permanent Court of Arbitration which stated
that a title “founded on the peaceful and continuous display of State authority over the island”. It stressed on various
conventions and treaties ratified by the Denmark with other countries where a stipulation for non -application of such
convention over Greenland was inserted to demonstrate that other nations admitted that Denmark has right to
exclude Greenland. These treaties are sufficient to e stablish Denmark’s will and intention to act exercise sovereignty.
From the facts stated above i.e. legislations on Greenland for administration, various treaties ratified, concessions
granted for erection of telegraph lines, fixing limits on territorial w aters, etc. are manifestations of the exercise of
sovereign authority.

47
Regarding uncertainty over sovereignty during 1814 to 1915, the Court said that taking into account the above facts
and circumstances Denmark should be regarded as having displayed her sovereign authority. Despite considering just
the period from 1921 to 1931 the Court concluded that Denmark regarded itself as possessing sovereignty over
Greenland.

The PCIJ after it was satisfied about the valid title to the sovereignty over Greenland at the critical date adjudged the
contention in favour of the Danish Government. It said having regard to a pattern of activity between 1921 and 1931,
including the enforcement by legislation of a state trade monopoly, the granting of trading, mining, and ot her
concessions, the exercise of governmental functions and administration, and the making of numerous treaties in the
terms of which Danish rights over Greenland were explicit. The Norwegian occupation was illegal and invalid, since
Denmark, at the very least in the 10 years previous to the Norwegian occupation, had ‘displayed and exercised her
sovereign rights to an extent sufficient to constitute a valid title to sovereignty.

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

1. After termination of the Union between Denmark and Norway in 1814, the latter undertook not to contend
the Danish claim of sovereignty over Greenland. PCIJ held that as a result of various undertaking r esulting
from the separation and culminating in Article 9 of the convention of September 1st, 1819, concluded that
Norway acknowledged Danish sovereignty and consequently it cannot occupy of any part thereof.
2. International Agreements: In many bilateral and multilateral agreements concluded between Denmark and
other countries including Norway, Greenland was described as part of Denmark and has been excluded at the
instance of the latter from operation of the agreements. By ratifying such agreements, it is fo llowed that
Norway recognized whole of Greenland as part of Denmark.
3. Ihlen Declaration: One of the bases for the Denmark’s claim was the statement made by Foreign Minister of
Norway Mr. Ihlen in July, 1919 would render their claim for sovereignty futile. N orway contented that his
statement would not bind the Norwegian Government as it lacked requisite authority.

The Danish Minister at Chirstiania under the instruction of Danish Minister for Foreign Affairs on July 12th, 1919
renewed before a Committee const ituted at the Peace Conference “for the purpose of considering the claims that
may be put forward by different countries to Spitzbergen” the unofficial assurance given to the Norwegian
Government on April 2nd, 1919 stating that Denmark has no special inter ests at stake in Spitzbergen and they would
not raise any objections to its claims. At this occasion the Minister took the liberty and stated that recognition of
Denmark’s political and economic interest to the whole of Greenland “would not encounter any d ifficulties on the
part of the Norwegian Government”. To this Mr. Ihlen, replied by stating that the Plans of the Royal [Danish]
Government respecting Danish sovereignty over the whole of Greenland… would meet with no difficulties on the
part of Norway”.

Denmark contented relying on this declaration claimed recognition of an existing Danish sovereignty.

Norway contented that Mr. Ihlen was in error as to the effect of his statement and the consent was therefore invalid.
Norway maintained that Mr. Ihlen had t he knowledge of the consequences of extension of Danish sovereignty i.e.,
elimination of Norwegian right over fishing and hunting. Therefore, Mr. Ilhen has not consented to such declaration.
The Court did not entertain this argument as Mr. Ihlen’s in abili ty to foresee the consequences of his actions cannot
be a valid ground.

Following are the arguments of Norway :

4. Ihlen’s declaration is a mere diplomatic assurance of the benevolent attitude of the Norwegian Government
in the event of subsequent negotiations concerning a definitive settlement; that

48
 5. A verbal declaration is not internationally binding, especially when it would involve the renunciation of
important national interests; that
6. Ihlen could not bind Norway by such a statement, since international law attaches legal force only to those
acts of a foreign minister which fall within his constitutional competence; and that
7. The Danish recognition of Norwegian sovereignty over Spitzbergen did not constitute a quid pro quo, in that
Denmark did not possess in Spitzbergen interests comparable to those of Norway in East Greenland.

ISSUE: W/N the reply of Mr. Ihlen (Ihlen Declaration) by the Norwegian Government is binding with the Danish
Government?

RULING: YES.

PCIJ rejected the argument of Denmark that the declaration is recognition of existing Danish sovereignty. On careful
examination of the circumstances and the words used it cannot be inferred that the declaration is a definitive
recognition of its sovereignty. However, the Court based on the relevant material concluded that the Norwegian
attitude in Greenland and Danish attitude in the Spitzbergen are interdependent. The affirmative reply by the
Minister had the ability of creating a bilateral engagement. Ev en if there is no such engagement, what Norway desired
from Denmark regarding Spitzbegen is similar to Denmark’s wish from Norway. Hence the reply by Mr. Ihlen on July
22nd, 1919 is definitely affirmative.

The PCIJ made the reply of Mr. Ihlen binding on the Norwegian Government by stating that: “The Court considers it
beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs on behalf of his Government
in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within
his province, is binding upon the country to which the Minister belongs.”

PCIJ by twelve votes to two adjudged that the promulgation by the Norwegian Government on July 10th, 1931 on
occupation over Greenland and any steps in furtherance of the declaration would amount to violation of existing
legal situation and are accordingly unlawful and invalid. To ascertain the legal status of Eastern Greenland, the PCJ
relied on the following premises:

The continuous and peaceful exercise of sovereignty over Greenland resulted in the title towards Denmark.

The Court made the Ihlen declaration binding thereby conferring the sovereignty to Denmark.

The Eastern Greenland case has reiterated the principles of Interna tional law laid down in Clipperton Island
arbitration and Island of Palmas/Miangas arbitration. Furthermore this has influenced the decision in the recent case
concerning sovereignty over Pulau ligitan and Pulau sipadan, a contentious case between Indonesi a and Malaysia
where in the Court ruled in favour of the latter after relying on the decision and reasoning of the Eastern Greenland
case.

Dissenting Opinion Of Judge Anzilotti

He observed that the international competence of a Minister for Foreign Affairs has neither brought to the knowledge
of the Court previously nor there are any settled legal authorities. Minister of Foreign Affairs is direct agent of the
chief of the State authorised to represent the State. Statement made his authority is binding upon the State. Any
mistake pleaded should be of an excusable character. “But even accepting for a moment, the supposition that Mr.
Ihlen was mistaken as to the results which might ensue from an extension of Danish sovereignty it must be admitted
that this mistake was not such as to entail the nullity of the agreement. If a mistake is pleaded it must be of an
excusable character; and one can scarcely believe that a government could be ignorant of the legitimate
consequences following upon the extension of sover eignty… Norway was the least likely to be ignorant of the Danish
methods of administration in Greenland, or of the part played therein by the monopoly system.”

5. The Lotus Case (France v. Turkey), 1927 P.C.I.J. (Ser. A) No. 10

49
Overview: A collision occurred on the high seas between a French vessel and a Turkish vessel. Victims were Turkish
nationals and the alleged offender was French. Could Turkey exercise its jurisdiction over this French national under
international law?

Facts of the Case:

A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel – Boz-Kourt. The Boz-
Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10 survivors of the Boz -Kourt (including
its captain) were taken to Turkey on board the Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the
captain of the Turkish ship were charged with manslaughter. Demons, a French national, was sentenced to 80 days
of imprisonment and a fine. The French government protested, demanding the release of Demons or the transfer of
his case to the French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent
Court of International Justice (PCIJ).

Questions before the Court:

Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by a French
national, outside Turkey? If yes, should Turkey pay compensation to France?

The Court’s Decision:

Turkey, by instituting criminal proceedings against Demons, did no t violate international law.

Relevant Findings of the Court:

Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an existing rule of
international law or is the mere absence of a prohibition preventing the exercise of jurisdiction enough?

The first principle of the Lotus Case: A State cannot exercise its jurisdiction outside its territory unless an
international treaty or customary law permits it to do so. This is what we called the first principle of the Lotus Case.
The Court held that:

“Now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a
permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In thi s
sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a
permissive rule derived from international custom or from a convention.” (para 45)

The second principle of the Lotus Case: Within i ts territory, a State may exercise its jurisdiction, in any matter, even
if there is no specific rule of international law permitting it to do so. In these instances, States have a wide measure
of discretion, which is only limited by the prohibitive rules of international law.The Court held that:

“It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory,
in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some
permissive rule of international law. Such a view would only be tenable if international law contained a general
prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property
and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain
specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down
a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of
their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of
discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free
to adopt the principles which it regards as best and most suitable. This discretion left to States by international law
explains the great variety of rules which they ha ve been able to adopt without objections or complaints on the part
of other States …In these circumstances all that can be required of a State is that it should not overstep the limits
which international law places upon its jurisdiction; within these limi ts, its title to exercise jurisdiction rests in its
sovereignty.” (paras 46 and 47)

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This applied to civil and criminal cases. If the existence of a specific rule was a pre -requisite to exercise jurisdiction,
the Court argued, then “it would…in many cases r esult in paralysing the action of the courts, owing to the impossibility
of citing a universally accepted rule on which to support the exercise of their [States’] jurisdiction” (para 48).

The Court based this finding on the sovereign will of States. It hel d that:

“International law governs relations between independent States. The rules of law binding upon States therefor
emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles
of law and established in order to regulate the relations between these co -existing independent communities or with
a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be
presumed”

[Note: This was one of the more debated as pects of the judgement. Some argued that the Court placed too much
emphasis on sovereignty and consent of States (i.e. took a strong positivist view)].

Criminal Jurisdiction: Territorial Jurisdiction

France alleged that the flag State of a vessel has exclu sive jurisdiction over offences committed on board the ship in
high seas. The Court disagreed. It held that France, as the flag State, did not enjoy exclusive territorial jurisdiction in
the high seas in respect of a collision with a vessel carrying the fl ag of another State (paras 71 – 84). The Court held
that Turkey and France both have jurisdiction in respect of the whole incident: in other words, there was concurrent
jurisdiction.

The Court held that a ship in the high seas is assimilated to the territory of the flag State. This State may exercise its
jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land, to the exclusion of all other
States. In this case, the Court equated the Turkish vessel to Turkish territo ry. The Court held that the “… offence
produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the
application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners.”
The Court concluded that Turkey had jurisdiction over this case. It further said:

“If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign
territory, the same principles mu st be applied as if the territories of two different States were concerned, and the
conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship
on which the effects of the offence have taken place b elongs, from regarding the offence as having been committed
in its territory and prosecuting, accordingly, the delinquent.”

The Lotus Case is also significant in that the Court said that a State would have territorial jurisdiction, even if the
crime was committed outside its territory, so long as a constitutive element of the crime was committed in that State.
Today, we call this subjective territorial jurisdiction. In order for subjective territorial jurisdiction to be established,
one must prove that the element of the crime and the actual crime are entirely inseparable: in other words, if the
constituent element was absent – the crime would not have happened. The Court said:

“The offence for which Lieutenant Demons appears to have been prosecuted was an a ct – of negligence or imprudence
– having its origin on board the Lotus, whilst its effects made themselves felt on board the Boz -Kourt. These two
elements are, legally, entirely inseparable, so much so that their separation renders the offence non -existent… It is
only natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is
therefore a case of concurrent jurisdiction.”

Customary International Law

The Lotus case gave an important dictum on creating customary international law. France had alleged that
jurisdictional questions on collision cases are rarely heard in criminal cases, because States tend to prosecute only
before the flag State. France argued that this absence of prosecutions points to a po sitive rule in customary law on
collisions. The Court disagreed and held that, this:

51
 “…would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not
that they recognized themselves as being obliged to do so ; for only if such abstention were based on their being
conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does
not allow one to infer that States have been conscious of having such a duty; on t he other hand, as will presently be
seen, there are other circumstances calculated to show that the contrary is true.”

In other words, opinio juris is reflected not only in acts of States (Nicaragua Case), but also in omissions when those
omissions are made following a belief that the said State is obligated by law to refrain from acting in a particular
way. (For more on opinio juris click here)

6. Trail Smelter Arbitration (U.S. v. Canada), [1938, 1941]

DOCTRINE: The duty to protect other states against harmful acts by individuals from within its jurisdiction at all
times is the responsibility of a state.

FACTS: The Columbia River rises in Canada and flows past a lead and zinc smelter located at Trail, in British Columbia
(Canada). The smelter company was alleged to cause damage to trees, crops and land in the American States of
Washington. The climate from beyond Trail on the United States boundary is dry, but not arid. The smelter was built
under U.S. auspices, but had been taken over. In 1906, the Conso lidated Mining and Smelting Company of Canada
Limited acquired the smelter plant at Trail. Since that time, the Canadian company, without interruption, has
operated the Smelter, and from time to time has greatly added to the plant until it has become one o f the best and
largest equipped smelting plants on the American continent.

In 1925 and 1927, stacks, 409 feet high, were erected and the smelter increased its output, resulting in more sulfur
dioxide fumes. The higher stacks increased the area of damage in the United States. From 1925 to 1931, damage had
been caused in the State of Washington by the sulfur dioxide coming from the Trail Smelter, and the International
Joint Commission recommended payment of $350,000 in respect of damage to 1 January, 1932. Th e United States
informed Canada that the conditions were still unsatisfactory and the Tribunal was set up to "finally decide" whether
further damage had been caused in Washington and the indemnity due, whether the smelter should be required to
cease operation; the measures to be adopted to this end; and compensation due.

The Tribunal was directed to apply the law and practice of the United States as well as international law and practice.
On February 17, 1933, the United States Government signified to the Canadian Government that the existing
conditions were entirely unsatisfactory and that damage was still occurring and diplomatic negotiations were entered
into, which resulted in the signing of the present convention. The Court held Canada responsible for the conduct of
the Trail Smelter and enjoined it to pay compensation to United States. The court also provided for future monitoring
of the effects of the factory's activities on the environment, to prevent possible future damages to the United States
environment.

The subsequent diplomatic negotiations led to the United States and Canada signing and ratifying a Convention in
1935. Through the Convention, the two countries agreed to refer the matter to a three -member arbitration tribunal
composed of an American, a Canadian, and an independent chairman (a Belgian national was ultimately appointed).
The arbitration tribunal was charged with determining whether damages caused by Trail Smelter continued to occur
after January 1, 1932 and, if so, what indemnity sh ould be paid. Under the Convention, Canada had already agreed
to pay the United States $ 350,000 for damages prior to 1932, based on the findings of the IJC. The arbitration tribunal
addressed this first question in this context of the case determining tha t the damages caused by the Canadian smelter
to properties in Washington State from 1932 to 1937 amounted to $ 78,000 (equivalent to approximately $ 1.1 million
in 2006).

The arbitration tribunal's more difficult, and ultimately more significant charge, wa s to decide whether the Canadian
smelter should be required to refrain from causing damage in the State of Washington in the future, and what
measures or regime, if any, should be adopted or maintained by the smelter, in addition to future "indemnity or
compensation."

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ISSUE: WON it is the responsibility of the State to protect other states against harmful acts by individuals from within
its jurisdiction at all times

HELD: Yes. It is the responsibility of the State to protect other states against harmful act by individuals from within
its jurisdiction at all times. No state has the right to use or permit the use of the territory in a manner as to cause
injury by fumes in or to the territory of another or the properties or persons therein as stipulated under t he United
States (P) laws and the principles of international law.

By looking at the facts contained in this case, the arbitration held that Canada is responsible in international law for
the conduct of the Trail Smelter Company. Hence, the onus lies on th e Canadian government to see to it that Trail
Smelter’s conduct should be in line with the obligations of Canada as it has been confirmed by International law. The
Trail Smelter Company will therefore be required from causing any damage through fumes as lo ng as the present
conditions of air pollution exist in Washington. So, in pursuant of the Article III of the Convention existing between
the two nations, the indemnity for damages should be determined by both governments. Finally, a regime or measure
of control shall be applied to the operations of the smelter since it is probable in the opinion of the tribunal that
damage may occur in the future from the operations of the smelter unless they are curtailed.

The court has come up with the two general princi ples evolved from the case at bar – (1) The first and more general
one is that enjoying every State not to allow its territory to be used in such a way as to damage the environment of
other States or of areas beyond the limits of national jurisdiction. Thi s principle was first set out by the Arbitral
Courts in the Smelter case. This principle is substantially based on an even more general obligation, enunciated in
the Corfu Channel case where the principle laid down that every State is under the obligation not to allow knowingly
its territory to be used for acts contrary to the rights of the other States.

(2) The second general principle attested to by the general and increasing concern of the States about the
environment and borne out by the great number of treaties concluded that imposing Canada to see to it that this
conduct should be in conformity with the obligation of the Dominion under international law as herein determined.
Therefore, so long as the present conditions in the Columbia River Valley prev ail, the Trail Smelter shall be required
to refrain from causing any damage through fumes in the State of Washington; the damage herein referred to and its
extent being such as would be recoverable under the decisions of the courts of the United States in suits between
private individuals. The indemnity for such damage should be fixed in such a manner as the Governments should
agree upon.

7. Blackmer v. U.S., 284 U.S. 421 (1932)

FACTS:

Harry M. Blackmer (defendant) is a United States citizen but a resident of Paris, France. The United States government
(plaintiff) issued two subpoenas requesting Blackmer appear as a witness on its behalf at a criminal trial. Blackmer
failed to appear, and two separate contempt actions were instituted against him in the Supreme Court of the District
of Columbia. The contempt actions were based on a United States statute which provides that “whenever the
attendance at the trial of a criminal action of a witness abroad, who is a citizen of the United States or domiciled
therein, is desired by the Attorney general, or any assistant or district attorney acting under him, the judge of the
court in which the action is pending may order a subpoena to issue, to be addressed to a consul of the United States
and to be served by him personally upon the witness with a tender of traveling expenses.” Additionally, upon
issuance of the subpoena and failure of the witness to appear, the court may issue an order requiring the witness to
show cause why he should not be punished for contempt. Blackmer was found guilty of contempt on both counts,
and a fine of $30,000 was imposed in both cases. The fine was to be satisfied out of Blackmer’s property which had
been seized by the court. On appeal, Blackmer objected to the statute supporting his contempt convictions on the
ground that it violated the Fifth Amendment to the United States Constitution. He argued that the statute did not
comply with due process requirements under the United States Constitution.

These contentions are:

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1) That the ´Congress has no power to authorize United States consuls to serve process except as permitted by
treaty´

2) That the act does not provide ´a valid method of acquiring judicial jurisdiction to render personal judgment
against defendant and judgment against his p roperty

3) That the act ´does not require actual or any other notice to defendant of the offense or of the Government´s
claim against his property

4) That the provisions ´for hearing and judgment in the entire absence of the accused and without his consent´
are invalid

5) That the act is ´arbitrary, capricious and unreasonable´

The CA affirmed the contempt decrees, and the United States Supreme Court granted certiorari.

ISSUE: Must there be due process for the exercise of judicial jurisdiction in per sonam?

RULING: Yes. With respect to such exercise of authority, there is no question of international law, but solely of the
purport of the municipal law which establishes the duties of the citizen in relation to his own government. While the
legislation of the Congress, unless the contrary intent appears, is construed to apply only within the territorial
jurisdiction of the United States, the question of its application, so far as citizens of the United States in foreign
countries are concerned, is one of construction, not of legislative power. The jurisdiction of the United States over
its absent citizen, so far as the binding effect of its legislation is concerned, is a jurisdiction in personam, as he is
personally bound to take notice of the laws that ar e applicable to him and to obey them. But for the exercise of
judicial jurisdiction in personam, there must be due process, which requires appropriate notice of the judicial action
and an opportunity to be heard. For this notice and opportunity the statute provides. The court may adjudge the
witness guity of contempt if the witness fails to comply with the court order. Congress acted pursuant to its authority
in enacting the statute and it could prescribe a penalty to enforce it.

8. Filartiga v. Peña-Irala, 630 F.2d 876 (1980)

Facts: The Filartigas are citizens of Paraguay. Dr, Joel Filartiga was a known opposer of the standing government in
Paraguay at that time. They claim that in March 1976, their son was kidnapped by the police in Paraguay as a
retaliation to Joel Filartiga. They later on found him dead. Autopsy showed that he died because of torture. They
filed a a case against Pena who was the Inspector General of Police. However, the case did not prosper. Instead, the
lawyer they hired was arrested and disbarred without just cause.

The Filartigas moved to U.S. They then found out that Pena was also in the country. They filed a case against him.
Pena claimed that the defense of forum non convenience. He claimed that since the crime happened i n Paraguay,
and that their country offers adequate remedies with regard to the allegation, then he should be tried in Paraguay.

Issue: Whether or not he could be tried in U.S.

Ruling: Yes. The Universality principle dictates that every States has jurisdict ion to crimes which are considered
universal in nature. These crimes are universal because of their nature – they are abhorrent and shocking to the
senses that the whole international community regard them as a crime; one of which is torture. The prohibiti on
against torture has become part of customary international law. Various United Nations declarations such as the
Universal Declaration of Human Rights and the 1975 Declaration on the Protection of All Persons from Torture further
portrays the fact that prohibition against torture has become part of customary international law. Torture has been
officially renounced in the vast majority of nations and this is the reason why this court concluded that torture
violates the law of nations.

9. Attorney General of Israel v. Eichmann, 36 Intl. L. Rep. 5 (Israel, Dist. Ct. Jerusalem 1961)

54
Fact: Adolf Eichmann, was an Austrian by birth who worked as the Head of Section for Jewish Affairs charged of the
Final Solution to the Jewish Question. In this capacity, he kill ed more than 4200000 Jewish people and the transfer
of money from evacuated Jews to the State and was responsible for the administration of the Torture camps.

Later, he was captured by Israeli Security Forces in Argentina, where he reached after traveling many European
country then having a fake identity of Red Cross as being Ricardo Klement. After that ISF handed over to the District
Court of Jerusalem to stand trial for war crimes, crimes against humanity and crimes against the Jewish people.

Issue: whether Israel had the authority to put him in the trial or not?

Decision: He was convicted of all 15 counts and sentenced to death.

Reasoning: His crimes were crimes against humanity, he violated the principal of jus cogence so every country has
the right to try that type of crime.

Principle: The universal principle of Jurisdiction. It recognizes that a sovereign can adopt criminal laws that apply to
the person who has committed any crime of universal nature such as war crimes and crimes against humanity (Jus
Cogence, War Crime, Mass Killing etc.) Anywhere in the world when the conduct is recognized by nations as being of
universal concern.

10. U.S. v. Alvarez-Machain, 504 U.S. 655 (1992)

Facts: In 1985, Special Agent Enrique Camarena -Salazar of the U.S. Drug Enforcement Administration was abducted,
tortured and murdered by drug dealers in Mexico. The DEA has gone to great lengths to bring the murderers to
justice, and resorted to kidnapping, from Mexico, some of those believed to be responsible for Camarena’s death so
that they may be prosecuted in United States courts. Mexico has officially protested the kidnappings. The Supreme
Court has now ruled that those abductions did not violate the Extradition Treaty between the United States and
Mexico, and that the Treaty therefore provides no basis for a U.S. court to divest itself of jurisdiction over the
abductees.

On April 2, 1990, Dr. Humberto Alvarez Machain, a physician and Mexican citizen, was abducted from his office in
Guadalajara, Mexico, by several armed men, and flown by private plane to the United States , where he was arrested
by the DEA. Alvarez was accused of having participated in Special Agent Camarena’s murder in a particularly grisly
fashion: he allegedly used his medical skills to prolong Camarena ’s life under torture so that other members of the
drug ring could continue to interrogate him in an effort to learn what he knew about their operation.

Following Alvarez’s abduction, the Government of Mexico presented a series of diplomatic notes to the D epartment
of State. The notes accused the United States of having had knowledge of the abduction, contended that the
abduction violated the Treaty, and demanded that Alvarez be returned to Mexico.

Alvarez was arraigned in the U.S. district court in Los Ang eles, and moved to dismiss his indictment. He argued, inter
alia, that the court lacked personal jurisdiction over him because his abduction had been orchestrated by the DEA
without the consent of the Mexican Government and therefore violated the Treaty.

After concluding that DEA agents were responsible for the abduction, the District Court dismissed the indictment on
the ground that it violated the Extradition Treaty between the United States and Mexico (Extradition Treaty or
Treaty), and ordered responden t's repatriation. The Court of Appeals affirmed. Based on one of its prior decisions,
the court found that, since the United States had authorized the abduction and since the Mexican Government had
protested the Treaty violation, jurisdiction was improper.

Held: The fact of respondent's forcible abduction does not prohibit his trial in a United States court for violations of
this country's criminal laws.

(a) A defendant may not be prosecuted in violation of the terms of an extradition treaty. United States v.
Rauscher, 119 U. S. 407. However, when a treaty has not been invoked, a court may properly exercise jurisdiction
even though the defendant's presence is procured by means of a forcible abduction. Ker v. Illinois, 119 U. S. 436.
55
Thus, if the Extradition Treaty does not prohibit respondent's abduction, the rule of Ker applies and jurisdiction was
proper.

(b) Neither the Treaty's language nor the history of negotiations and practice under it supports the proposition
that it prohibits abductions outside of i ts terms. The Treaty says nothing about either country refraining from forcibly
abducting people from the other's territory or the consequences if an abduction occurs. In addition, although the
Mexican Government was made aware of the Ker doctrine as early as 1906, and language to curtail Ker was drafted
as early as 1935, the Treaty's current version contains no such clause.

(c) General principles of international law provide no basis for interpreting the Treaty to include an implied term
prohibiting international abductions. It would go beyond established precedent and practice to draw such an
inference from the Treaty based on respondent's argument that abductions are so clearly prohibited in international
law that there was no reason to include the prohibition in the Treaty itself. It was the practice of nations with regard
to extradition treaties that formed the basis for this Court's decision in Rauscher, supra, to imply a term in the
extradition treaty between the United States and England. Respon dent's argument, however, would require a much
larger inferential leap with only the most general of international law principles to support it. While respondent may
be correct that his abduction was "shocking" and in violation of general international law principles, the decision
whether he should be returned to Mexico, as a matter outside the Treaty, is a matter for the Executive Branch.

11. Secretary of Justice v. Lantion, G.R. No. 139465, October 17, 2000

Facts: On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the
Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is founded
on: the doctrine of incorporation under the Constitution; the mutual co ncern for the suppression of crime both in
the state where it was committed and the state where the criminal may have escaped; the extradition treaty with
the Republic of Indonesia and the intention of the Philippines to enter into similar treaties with ot her interested
countries; and the need for rules to guide the executive department and the courts in the proper implementation of
said treaties.

On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of
the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines
and the Government of the United States of America" (hereinafter referred to as the RP -US Extradition Treaty). The
Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed its
concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the
documents accompanying an extradition reques t upon certification by the principal diplomatic or consular officer of
the requested state resident in the Requesting State).

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale No.
0522 containing a request for the extradition of private respondent Mark Jimenez to the United States. Attached to
the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern
District of Florida, and other supporting documents for said extradition. Based on the papers submitted, private
respondent appears to be charged in the United States with violation of the following provisions of the United States
Code (USC): (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum Penalty — 5
years on each count), (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty — 5 years on each count),
(Fraud by wire, radio, or television; two [2] counts; Maximum Penalty — 5 years on each count), False statement or
entries; six [6] counts; Maximum Penalty — 5 years on each count); (Election contributions in name of another; thirty -
three [33] counts; Maximum Penalty — less than one year).

On the same day, petitioner issued Department Order No. 249 de signating and authorizing a panel of attorneys to
take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the
panel began with the "technical evaluation and assessment" of the extradition request and the documents in support
thereof. The panel found that the "official English translation of some documents in Spanish were not attached to
the request and that there are some other matters that needed to be addressed" (p. 15, Rollo).

56
Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter
dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from the U.S.
Government, as well as all documents and papers submitted therewith; and that he be given ample time to comment
on the request after he shall have received copies of the requested papers. Private respondent also requested that
the proceedings on the matter be held in abeyance in the meantime.

After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf,
moved that he be given ample time to file a memorandum, but the same was denied.

On August 10, 1999, respondent judge issued an order dated the previous day, di sposing:

WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of Foreign
Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives to maintain the
status quo by refraining from committing the acts complained of; from conducting further proceedings in connection
with the request of the United States Government for the extradition of the petitioner; from filing the corresponding
Petition with a Regional Trial court; an d from performing any act directed to the extradition of the petitioner to the
United States, for a period of twenty (20) days from service on respondents of this Order, pursuant to Section 5, Rule
58 of the 1997 Rules of Court.

The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the counsels for
the parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. The respondents are, likewise, ordered
to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date.

SO ORDERED.

ISSUE: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due
process rights of notice and hearing?

Held: Yes. To be sure, the issues call for a review of the extradition procedure. The RP -US Extradition Treaty which
was executed only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree No.
1069, also called as the Philippine Extradi tion Law. Section 2(a) thereof defines extradition as "the removal of an
accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the
requesting state or government to hold him in connection with any crim inal investigation directed against him or the
execution of a penalty imposed on him under the penal or criminal law of the requesting state or government."

In accordance with Paragraphs 2 and 3, Article 7 of the RP -US Extradition Treaty, the executive aut hority (Secretary
of Foreign Affairs) must also see to it that the accompanying documents received in support of the request had been
certified by the principal diplomatic or consular officer of the Requested State resident in the Requesting State
(Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs).

In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive
authority of the Requested State deter mines that the request is politically motivated, or that the offense is a military
offense which is not punishable under non -military penal legislation."

However, looking at the factual milieu of the case before us, it would appear that there was failure t o abide by the
provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the
Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of
Justice received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly
evaluating the same and its accompanying documents. The statement of an assistant secretary at the Department of
Foreign Affairs that his Department, i n this regard, is merely acting as a post office, for which reason he simply
forwarded the request to the Department of Justice, indicates the magnitude of the error of the Department of
Foreign Affairs in taking lightly its responsibilities. Thereafter, t he Department of Justice took it upon itself to
determine the completeness of the documents and to evaluate the same to find out whether they comply with the
requirements laid down in the Extradition Law and the RP -US Extradition Treaty. Petitioner ratioci nates in this
connection that although the Department of Justice had no obligation to evaluate the extradition documents, the
57
Department also had to go over them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp.
24-25). Notably, it was also at this stage where private respondent insisted on the following; (1) the right to be
furnished the request and the supporting papers; (2) the right to be heard which consists in having a reasonable
period of time to oppose the request, and t o present evidence in support of the opposition; and (3) that the
evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the request.

It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by
certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result
in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First,
the provisional arrest of the prospective extraditee pending the submission of the request. This is so because the
Treaty provides that in case of urgency, a contracting party may request the provisional arrest of the person sought
pending presentation of the request (Paragraph [1], Article 9, RP -US Extradition Treaty), but he shall be
automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069
provides for a shorter period of 20 days aft er which the arrested person could be discharged (Section 20[d]).
Logically, although the Extradition Law is silent on this respect, the provisions only mean that once a request is
forwarded to the Requested State, the prospective extraditee may be continu ously detained, or if not,
subsequently rearrested (Paragraph [5], Article 9, RP -US Extradition Treaty), for he will only be discharged if no
request is submitted. Practically, the purpose of this detention is to prevent his possible flight from the Reques ted
State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition
in court (Section 6, Presidential Decree No. 1069).

Clearly, there is an impending threat to a prospective extraditee's liberty as early a s during the evaluation stage. It
is not only an imagined threat to his liberty, but a very imminent one.

Because of these possible consequences, we conclude that the evaluation process is akin to an administrative
agency conducting an investigative procee ding, the consequences of which are essentially criminal since such
technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a
prospective extraditee. As described by petitioner himself, this is a "tool" f or criminal law enforcement (p. 78,
Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a number
of cases, we had occasion to make available to a respondent in an administrative case or investigation certain
constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr.
Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage that had been
advanced to an earlier stage in the proceedings, such as the right to counsel and the right against self -incrimination
(tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon

From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity — the
Department of State — which has the power to evaluate the request and the extradition documents in the beginning,
and, in the person of the Secretary of State, the power to act or not to act on the court's determinatio n of
extraditability. In the Philippine setting, it is the Department of Foreign Affairs which should make the initial
evaluation of the request, and having satisfied itself on the points earlier mentioned (see pp. 10 -12), then forwards
the request to the Department of Justice for the preparation and filing of the petition for extradition. Sadly, however,
the Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the Department of
Justice which has taken over the task o f evaluating the request as well as thereafter, if so warranted, preparing,
filing, and prosecuting the petition for extradition.

The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after
the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional
arrest allowed under the treaty and the implementing law. The prejudice to the "accused" is thus blatant and
manifest.

Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved
aside.

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In the case at bar, private respondent does not only face a clear and present danger of loss of property or
employment, but of liberty itself, which may eventua lly lead to his forcible banishment to a foreign land. The
convergence of petitioner's favorable action on the extradition request and the deprivation of private respondent's
liberty is easily comprehensible.

WHEREFORE, in view of the foregoing premises, t he instant petition is hereby DISMISSED for lack of merit. Petitioner
is ordered to furnish private respondent copies of the extradition request and its supporting papers, and to grant
him a reasonable period within which to file his comment with supportin g evidence. The incidents in Civil Case No.
99-94684 having been rendered moot and academic by this decision, the same is hereby ordered dismissed.

12. The Pinochet Case, November 25, 1998, House of Lords

Doctrine: A former head of state only has immunity with regard to his acts as a head of state but not with regard to
acts which fall outside his role as head of state. A head of state may be treated as the state itself and entitled to the
same immunities.

Facts: On 11 September 1973, General Augusto Pinoch et Ugarte assumed power in Chile as a result of a military
coup that overthrew the then government of President Allende. Pinochet was the Commander in Chief of the Chilean
Army until 1974 when he assumed the title of President of the Republic. His presiden cy lasted until 1990 and his role
as Commander in Chief until 1998. His regime was known for its systematic and widespread violations of human
rights, with allegations of murder, torture and hostage taking of political opponents.

On September 1997 general Pinochet entered UK, just before his return in Chile, after undertaking surgery in London.
Which UK magistrates arrested Gen. Augusto Pinochet. They were acting on a 2 Spanish warrant charging the former
dictator with human rights crimes committed in Chile during his seventeen-year rule such as acts of torture and
hostage taking

pursuant to the European Convention on Extradition. Gen. Pinochet’s counsel immediately moved to have the 2 arrest
warrants quashed by the high court. Divisional Court of the Queen’ s Bench Division ruled that the first arrest was bad
as the crimes for which extradition had been requested by Spain were not extradition crimes under UK Extradition
Act. As to the 2nd arrest warrant, Lord Chief Justice held that Gen. Pinochet was immune f rom jurisdiction as the acts
that he had allegedly committed were official acts performed in the exercise of his functions of head of state.

Issue: WON the Respondent is entitled to immunity either by virtue of State immunity or Head of State immunity

HELD: No, Gen. Pinochet was not immune for torture and conspiracy to commit torture as former head of state and
could be extradited to Spain. the continued immunity for ex -heads of states is inconsistent with the provisions of the
Torture Convention and that torture as defined in the Convention, cannot be a state function. Therefore, starting
from the moment in which the UK became party to the convention, Spain and Chile having already ratified it, all
parties involved had agree to exercise extraterritorial jur isdiction over acts of torture committed by or with the
acquiescence of state officials.

“When the functions of a person enjoying privileges and immunities have come to an end, such privileges and
immunities shall normally cease at the moment when he leave s the country, or on expiry of a reasonable period in
which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts
performed by such a person in the exercise of his functions as a member of the mission, i mmunity shall continue to
subsist.”

It was also held that Chile had lost its right to object to the extraterritorial jurisdiction of UK upon its ratification of
the convention, which would prevent the parties from invoking immunity “ratione materiae” in th e event of
allegations of systematic or widespread torture. It was also found that acts of torture, already outlawed by
international law at the time of adoption of torture convention, are not amenable within the functions of a head of
state and that there’s no waiver issue as the immunity to which Pinochet is entitled as a former head of state does
not arise in relation to, and does not attach to acts of torture. Finally, that crimes of such gravity as to schock the
consciousness of mankind cannot be toler ated by the international community and that state immunity ratione
59
materiae cannot coexist with international crimes and the right of states to exercise extraterritorial jurisdiction over
them.

Personal immunity, section 20 of the 1978 State Immunity Act confers immunity from criminal proceedings upon
Heads of State. Following an interpretation of Article 39(2) of 1961 Vienna Convention on Diplomatic Relations,
incorporated by reference, this immunity extends to former Heads of State in respect of official acts. Official acts are
those recognized by international law as functions of a Head of State, irrespective of the terms of individual’s
domestic constitution. Accordingly, acts of torture and hostage taking are not functions of a Head of State and
therefore no immunity can attach to them in respect of criminal proceedings.

By a majority of 3:2 (Lords Hoffman, Nicholls and Steyn), their Lordships allowed the appeal and held that the
Respondent was not entitled to immunity.

ASSIGNMENT SHEET 6

1. The Corfu Channel Case (U.K. v. Albania), 1949 I.C.J. 4

FACTS:

May 15th. 1946- Two British ships passed through Albania’s North Corfu Channel where Albanian’s fired at them. This
led to diplomatic discussions about the right of British ships to pass peacefully thro ugh Albanian waters.

October 22nd, 1946- a squadron of British warships (two cruisers and two destroyers), left the port of Corfu and
proceeded northward through a channel previously swept for mines in the North Corfu Strait.

Both destroyers were struck by mine and were heavily damaged. This incident resulted also in many deaths. The two
ships were mined in Albanian territorial waters in a previously swept and check -swept channel.

After the explosions of October 22nd, the United Kingdom Government sent a note to the Albanian Government, in
which it announced its intention to sweep the Corfu Channel shortly. The Albanian reply, which was received in
London on October 31st, stated that the Albanian Government would not give its consent to this unless the o peration
in question took place outside Albanian territorial waters. Meanwhile, at the United Kingdom Government's request,
the International Central Mine Clearance Board decided, in a resolution of November 1st, 1946, that there should be
a further sweep of the Channel, subject to Albania's consent. The United Kingdom Government having informed the
Albanian Government, in a communication of November 10th, that the proposed sweep would take place on
November 12th, the Albanian Government replied on the 11 th, protesting against this 'unilateral decision of His
Majesty's Government'. It said it did not consider it inconvenient that the British fleet should undertake the sweeping
of the channel of navigation, but added that, before sweeping was carried out, it considered it indispensable to
decide what area of the sea should be deemed to constitute this channel, and proposed the establishment of a Mixed
Commission for the purpose.

It ended by saying that any sweeping undertaken without the consent of the Al banian Government outside the
channel thus constituted, i.e., inside Albanian territorial waters where foreign warships have no reason to sail, could
only be considered as a deliberate violation of Albanian territory and sovereignty. After this exchange of notes,
'Operation Retail' took place on November 12th and 13th.

One fact of particular importance is that the North Corfu Channel constitutes a frontier between Albania and Greece,
that a part of it is wholly within the territorial waters of these States, and that the Strait is of special importance to
Greece by reason of the traffic to and from the port of Corfu.

The British government claimed the minefield which caused the explosions was laid between May 15th, 1946, and
October 22nd, 1946, by or with the approval or knowledge of the Albanian Government. Thus, Albania was responsible
for the explosions and loss of life and had to compensate the UK government.

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In addition to the passage of the United Kingdom warships on October 22nd, 1946, the second questi on in the Special
Agreement relates to the acts of the Royal Navy in Albanian waters on November 12th and 13th, 1946 when the
British government carried out a minesweeping operation called 'Operation Retail' without the consent of Albania.

UK held the opinion the passage on October 22nd, 1946 was innocent and that according to rules of international law
it had the right to innocent passage through the North Corfu Channel as it is considered part of international highways
and does not need a previous appro val of the territorial state.

The Albanian Government does not dispute that the North Corfu Channel is a strait in the geographical sense; but it
denies that this Channel belongs to the class of international highways through which a right of passage exists, on
the grounds that it is only of secondary importance and not even a necessary route between two parts of the high
seas, and that it is used almost exclusively for local traffic to and from the ports of Corfu. Thus, a previous approval
of the territorial state is necessary.

ISSUES:

3. WON the North Corfu Channel should be considered part of international highways?

4. WON Albania is responsible under international law for the explosions which occurred on the 22nd October
1946 in Albanian waters and for the damage and loss of human life which resulted from them and is there
any duty to pay compensation?'

HELD:

3. Yes. The court analyses the geographical situation of the channel connects two parts of the high seas and in
fact, frequently being used for international navigation. Taking into account these various considerations, the
Court concludes that the North Corfu Channel should be considered as belonging to the class of international
highways through which an innocent passage does not need s pecial approval and cannot be prohibited by a
coastal State in time of peace.

4. Yes. The UK government claims that on October 22nd, 1946, Albania neither notified the existence of the
minefield, nor warned the British warships of the danger they were approa ching. According to the principle
of state responsibility, they should have done all necessary steps immediately to warn ships near the danger
zone, more especially those that were approaching that zone. In fact, nothing was attempted by the Albanian
authorities to prevent the disaster. These grave omissions involve the international responsibility of Albania.

But Albania's obligation to notify shipping of the existence of mines in her waters depends on her having
obtained knowledge of that fact in suffici ent time before October 22nd; and the duty of the Albanian coastal
authorities to warn the British ships depends on the time that elapsed between the moment that these ships
were reported and the moment of the first explosion. The Court therefore reaches t he conclusion that Albania
is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian
waters, and for the damage and loss of human life which resulted from them, and that there is a duty upon
Albania to pay compensation to the United Kingdom.

In the second part of the Special Agreement, the following question is submitted to the Court:

2. Has the United Kingdom under international law violated the sovereignty of the Albanian People's Republic
by reason of the acts of the Royal Navy in Albanian waters on the 22nd October and on the 12th and 13th
November 1946 and is there any duty to give satisfaction?

No. Albania was in fact in war with Greece which means that the coastal state was not in time of peace. UK had not
an innocent passage due to the way it was carried out. The court assessed the manner of UK warships after they had

61
been shot at May 15th. Having thus examined the various contentions of the Albanian Government in so far as they
appear to be relevant, the Court has arrived at the conclusion that the United Kingdom did not violate the sovereignty
of Albania by reason of the acts of the British Na vy in Albanian waters on October 22nd, 1946.

The United Kingdom Government does not dispute that 'Operation Retail' was carried out against the clearly
expressed wish of the Albanian Government. It recognizes that the operation had not the consent of the international
mine clearance organizations, that it could not be justified as the exercise of a right of innocent passage, and lastly
that, in principle, international law does not allow a State to assemble a large number of warships in the territorial
waters of another State and to carry out minesweeping in those waters. The United Kingdom Government states that
the operation was one of extreme urgency, and that it considered itself entitled to carry it out without anybody's
consent.

The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in
the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international
organization, The United Kingdom Agent, in h is speech in reply, has further classified 'Operation Retail' among
methods of self-protection or self-help. The Court cannot accept this defense either find a place in international law.

FUN FACT: The Corfu Channel case was the first dispute to be brough t before the newly established International
Court of Justice - the successor to the Permanent Court of International Justice.

2. Caire Claim (France v. Mexico), 1929 RIAA v. 516

FACTS: On the 11th of December 1914, Jean -Baptiste Caire, a French national, was unlawfully shot and killed at an
army barracks in Mexico by two Mexican army officers, a major and a captain aided by a few privates, after Caire
refused a demand by one of the officers to pay a sum of money. This prompted Caire’s widow to sue Mexico f or
indemnity. France successfully pursued a claim against the Mexican government that was heard by the French -
Mexican Claims Commission which concluded Mexico liable.

ISSUE: WON Mexico is responsible for the actions of individual military personnel acting without orders or against
the wishes of their commanding officers.

HELD: YES. The French-Mexican Claims Commission held that Mexico was internationally responsible for the conduct
of the army officers. In this regard, Presiding Commissioner Verzijil obser ved that, under the doctrine of objective
responsibility (state responsibility for the acts of state officials or state organs even in the absence of “fault” on the
part of the state), a state is internationally responsible for acts committed by its offici als or organs outside their
competence if the officials or organs “acted at least to all appearances as competent officials or organs, or used
powers or methods appropriate to their official capacity.”

Here, the officers in question consistently conducted themselves as officers. In this capacity, they began exacting the
remittance of certain sums of money, they continued by having the victim taken to a barracks of the occupying troops;
and it was clearly because of the refusal of Caire to meet their repeate d demands that they finally shot him. Under
these circumstances, there remains no doubt that, even if they are to be regarded as having acted outside their
competence, which is by no means certain, and even if their superior officers issued a counter -order, these two
officers have involved the responsibility of the State, in view of the fact that they acted in their capacity of officers
and used the means placed at their disposition by virtue of that capacity.

3. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), 186 I.C.J. 14

4. United States v. Iran, 1980 ICJ Rep.

5. Home Missionary Society Claim (U.S. v. Great Britain), 1920 RIAA vi. 42

6. Short v. Iran (U.S. v. Iran), 1987

62
Facts: Short is an American citizen working for Lockheed Aircraft Service in Iran. A revolution erupted in Iran which
was especially hostile against the Americans because of their belief that the U.S is responsible for keeping the Shah
in power. Americans were threatened, harassed, beaten, and murdered. Lockheed, employer of Short, told him that
he would be evacuated, and on 8 February 1979, the U.S Air Force evacuated Short out of Iran. This caused the
termination of Short’s employment. Further, Short was not abl e to find employment until 1981. Short claims that
he should be reimbursed by the Iranian government for the salary that he should have received, considering the his
forced expulsion out of Iran was the fault of the government.

Issue: WON Iran is liable

Ruling: NO. The tribunal had to decide on the question whether the facts invoked by the claimant were attributable
directly or indirectly – as a result of lack of due diligence or of deliberate policies – to the new government of iran.
It first addressed the question of the causes for expulsions. Even though some causes are attributable to a state, the
tribunal claimed that when foreigners leave a country on the grounds of political turmoil, no assumption could be
made that this always constitute cases of wr ongful expulsion. The tribunal stated that although conduct by an
insurrectional movement in name of continuity can be attributable to the new government after a successful
revolution, the claimant had in this case not identified any agent of the revolutio nary movement whose actions
compelled him to leave iran. The claimant had left the country on February 8, three days before the proclamation of
the Islamic revolution. The tribunal considered the revolutionary movement at that time not capable of establish ing
control over any part of the Iranian territory. The tribunal further stated that acts of supported of a revolution cannot
be attributed to the government following a successful revolution. This, in accordance with the fact that conduct by
government supporters cannot be attributed to a government. This was recalled in the US Diplomatic and Consular
Staff in Teheran. The claimant’s reliance on the declarations made by the revolutionary leader lacked the ingredient
of being the cause for the claimant’s ex pulsion. The case was therefore dismissed because of the claimant’s failure
to prove that his departure from iran was attributable to the wrongful conduct of iran.

7. Chorzow Factory Case (Germany v. Poland), 1928 P.C.I.J. (Ser. A) No. 17

1 3 Sep t. 1 9 2 8 1 9 2 8 P.C.I.J. (ser. A) No. 1 7 TOPIC: C a s e s on Gen e r al Principles of Law
SUMMARY: G e r m a n y s u e d Poland for the latter’s act of takin g poss essi on of the nitrate factory in
Chorzów, Upper Sile si a (now part of Poland), a n d the co n seq u en t d a m a g e s suffe red b y the 2 G e rm a n
co mp an i e s, the Ob er sch lesisch e a n d the Bay e ri s c h e . T h e Court ruled that compen sa tion was
in d ee d owing to th es e c o mp a n i e s , but a n expert enq u iry was n e e d e d in order to de te rmine the exten t
of the award.

FA C T S :

 Mar. 1 9 1 5 - T h e G e r m a n Re i c h ( “G e rm a n y ” ) ente red into a contract with B a y e r i s c h e

Stickstoffwerke A.-G. (“B a y e r i sc h e ”) for, a m o n g others, the construction of a nitrate factory in
Chorzów, Upper Silesia.

 D e c . 1 9 1 9 - Another c o m p a n y , Ob ersch les isc h e Stickstoffwerke A.-G. (“Ob ersc h lesisch e”), was
formed. Obe r sch le sis ch e would own the lan d a n d imp rovem en ts of the factory while B a y e r i s c h e
would continue h an d l i n g the m a n a g e m e n t a n d operations. Ob e rsch l es isch e was d u l y entered in
the l an d register a s owner of the property constituting the nitrate factory.

 July 1 9 2 2 - T h e Polish Court of Hu ta Krolewska nullified the registration of Ob e r sch le sis ch e a s

owner of the factory, a n d restored the right of ownership to the n a m e of the Polish Treasu ry.

o Court’s b a si s : S i n c e the G e rm a n Go v e rn men t owned all of the sh a re s of the

Ob ersch lesisch e, what h a p p e n e d was me re l y a transformation of a n ordinary State
enterprise into a State enterprise with a sh a re capital, a n d this falls within the
catego ry of “property a n d p osse ssi on s b elon g i n g to the E mp i re ” ac qu ire d b y Poland u nder
Art. 2 5 6 of the Treaty of Ve rsaille s.

 M. I g n a c y Moscicki was d ele g a t e d b y the Polish govern men t with full powers to take c h a rg e of
the factory. H e took possession of the i m m o va b l e a n d mo v ab l e property (lic en s es, paten ts,
63
 etc.) therein.

 Ob er sch l esisch e a n d B a y e r i s c h e brought sep a ra te actions to recover p o ssessi on of the factory

before the German -Polish Mixed Arbitral Trib unal at Paris, but both later withdrew.
Ob er scl en sis ch e then brought a n action for the recovery of the m o v a b le property, but this led
to no decision on the merits.

 G e rm a n y initiated direct negotiations with Poland. G e rm a n y saw the imp racticability of

restoring the factory, a n d opted to d e m a n d reparations. However, negotiations were
u n su c ce s sf u l b e c a u s e , a m o n g others, Poland b e lie ve d that s o m e of its c l a i m s ag a i n s t
G e rm a n y should b e con sid ered in offsetting the ind emn ity to b e awarded to the latter.

 G e rm a n y submit ted a suit to the Perman ent Court of International Justice (PCIJ) d e m a n d i n g
reparation from the Polish Gove rn ment, c l a i m i n g that accordin g to PCIJ Ju d g men t No. 7,
Poland’s acts contradicted Art. 6 of the G e n e v a Convention. On receipt of G e r m a n y ’ s
complaint, Poland d e n i e d the PCIJ’s jurisdiction, a n d sub mitted that the Court should d ecla re that
it h a d no jurisdiction. Th is was overruled.

G E R M A N Y A R G U E S : Poland should p a y the two co m p a n i e s the c o m p e n s a t i o n d u e for the takin g

p o ssessi on of the working capital of the factory from July 3 , 1 9 2 2 , to the d ate of j u dgmen t.
However, this is n o t a n o r d i n a r y a c t i o n f o r d a m a g e s b u t a d i s p u t e b e t w e e n
g o v e r n m e n t s ; the G e rm a n Gove rn men t h a s not brought this suit a s rep resentative of the
ind ivi duals who h a v e suffered injury, but it m a y estima te the d a m a g e for which it c l a i m s
reparation o n i t s o w n b e h a l f , accordin g to the m e a s u re provided b y the losses suffered b y the
co m p a n ie s whose c a s e it h a s taken u p . Fin ally, Poland should not b e allowed to d e m a n d a set-off of
cl a im s .
P O L A N D A R G U E S : G e rm a n y is mod ify ing the subject of the disp ute; the G e r m a n c l a i m a s s u m e d
another a sp e c t if it was no longer a question of c om p e n sa tin g the c om p an i e s, but of
c o m p e n sa ti n g the State for the injury suffered b y it. Poland ad m it s the e xi s ten c e of injury to
Bay e ri s c h e , but d e n i e s the ex is t e n c e of a n y injurty to Ob er sch lesisch e ( si n c e its ownership was null
a n d void) a n d con sequ en tly su b mit s that G e r m a n y ' s c l a i m sh ould b e d is mi s s e d .

[ P r e l i m i n a r y ] W/N G e r m a n y a l t e r e d t h e s u b j e c t o f t h e d i s p u t e b y c l a i m i n g o n i t s o w n
b e h a l f ⇒ N O.

 It is a principle of IL that the reparation of a wrong m a y consist in a n in d emnit y

corresponding to the d a m a g e which the nationals of the injured State h a v e suffered a s a result
of the act which is contrary to IL. Th i s is e v e n the most u s u a l form of reparation; it is the form
selec t ed b y G e rm a n y in this c a s e a n d the ad missib ility of it h a s not b e e n disputed.

 T h e rules of law g ov e rn in g the reparation are the rules of IL in force between the two Sta te s
con ce rned, not the law gov ern in g relations between the Sta te a n d the individu al. However, rights
or interests of a n ind ividu al are always in a different p la n e to rights b elon gin g to a State. T h e
d a m a g e suffered b y a n ind ividu al is n eve r identical in kin d with that which will b e suffered b y a
State; it c a n only afford a con ven ient s c a l e for the calculation of the reparation d u e to the State.

 IL does not preven t one State from gran tin g to another the right to h a v e recourse to
international arbitral tribunals in order to obtain the direct award to nationals of the latter State
of comp ensation for d a m a g e suffered b y th e m a s a result of infractions of IL b y the first State.

 G e rm a n y h a s b e e n consistent in its su b mis si o n s; the in d emn ities were al ways p a y a b l e to the

G e rm a n Gove rn ment. T h e request to p a y to the accou nt of the 2 co m p a n i e s with the
D e u t s c h e B a n k at Berlin rela tes only to the locus solutionis ("law of the p l a c e where
performance occurs").

64
Substantive Issues:
(1 ) W/N there exist s a n o b l i g a t i o n to m a k e reparation ( a n d if y e s , W/N Poland committed a
breach)
(2 ) W/N there exis ts d a m a g e which mu s t se r ve a s a b a s i s for the calculation of the in d emn ity. (3 )
What is the e x t e n t of this d a m a g e ?

W/N t h e r e e x i s t s a n ob li gatio n to m a k e re pa r a t io n ⇒Y ES.

 T h e Court ob se rv es that i t i s a p r i n c i p l e o f I L , a n d e v e n a g e n e r a l c o n c e p t i o n o f l a w, t h a t
a n y b r e a c h o f a n e n g a g e m e n t i n v o l v e s a n o b l i g a t i o n t o m a k e r e p a r a t i o n . In Ju d gme n t
No. 8, the Court h a s al read y said that reparation is the in d i sp en sa b l e c o mp le m en t of a failure to
a p p l y a convention, there is n o n e c e s s i t y f o r t h i s t o b e s t a t e d i n t h e c o n v e n t i o n i t s e l f .
Th is obligation to m a ke reparation h a s b e e n rec ogn ized a s a n ele men t of po sitive IL.

 On Poland’s b reac h of a n international e n g a g e m e n t : r e s judicata ap p lies. T h e nonconformity of

Poland's attitude in resp ect of the two C o m p a n i e s with Art. 6 a n d the following articles of the
G e n e v a Convention is e stab l ish ed b y No. 2 of the operative provisions of Ju d gm en t No. 7.

W/N t h e r e e x i s t s d a m a g e w h ic h m u s t s e r v e a s a b a s is for t h e ca lcu lat ion of t h e

indemnity ⇒YES.

 In Ju d g men t No. 7, the PCIJ p a s s e d ruled upon the validity of the transactions through which
ownership p a s s e d to the Ob ersch lesisch e, a n d it found that th ey were g e n u i n e a n d bona fide.
Also, Poland’s reliance on the provisions of the Trea ty of Ve rsailles is not well-founded.

 T h e essen tial principle con tained in the actu al notion of a n illegal act – a principle which
s e e m s to b e es tab lish ed b y international practice a n d in particular b y the decision s of
arbitral tribunals – is that reparation mu s t, a s far a s possible, wipe out all the c o n s e q u e n c e s of
the illegal act a n d re-establish the situation which would, in all probability, h a v e exi st ed if that
act h a d not b e e n committed. R e s t i t u t i o n in kind , or, if this is not p ossib le, p a y m e n t o f a s u m
corresponding to the v a l u e which a restitution in kind would bea r; the award, if n e e d b e, of
d a m a g e s for loss su s t ai n ed which would not b e cove red b y restitution in kin d or p a y m e n t in
p l a c e of it – s u c h are the p r i n c i p l e s w h i c h s h o u l d s e r v e t o d e t e r m i n e t h e a m o u n t o f
c o m p e n s a t i o n d u e for a n a c t c o n tr a r y to IL .

Wh at is the extent of the d am a g e ? ⇒ Data is insuficient .

 T h e whole d a m a g e suffered b y the one or the other C o m p a n y a s the result of d isp ossession is
d etermin ed b y the v a l u e of the u n d er takin g a s s u c h . T h e l e gal relationship between the 2
C o m p a n i e s in no way con cerns the international p roceed in gs a n d cannot hinder the Court

rom adopting the s y s t e m of a l u m p s u m corresponding to the v a l u e of the u nd ertaking, if, a s is

the Court's opinion, s u c h a calculation is simpl er a n d g i v e s greater g u a ra n te e s that it will arrive
at a just appreciation of the amoun t, a n d avoid awarding double d a m a g e s .

 T h e Court con siders that it cannot b e satisfied with the d ata for a s s e s s m e n t su p p lied b y the Parties
(e. g. the cost of construction of a factory m a y not correspond to the v a l u e which that factory will
h a v e when built). In order to obtain further enli gh ten men t in the matter, the Court, before
g i v i n g a n y decisi on a s to the co mpensa ti on to b e p ai d b y the Polish Gove rnment to the
G e r m a n Gove rn men t, will arran ge for the h olding of a n e x p e r t e n q u i r y .

W/N P o la n d is entit le d to a set-off of c la i m s ⇒ T h e C o ur t m u s t a b s t a in fr o m p a s s i n g u p o n this.

 S i n c e there is no a g re e m e n t between the Parties to su b mit this question to the Court (only

65
 G e rm a n y raised this in its su b mi ssi on ), it re m ai n s to b e con sid ered whether the Court h a s
jurisdiction to p a s s j u d g men t on it. T h e Court con siders that this arg u me n t mu s t b e interpreted
in the s e n s e that the prohibition of set-off is a s ke d for in order to en su re that in the p resent c a s e
reparation sh all b e really effective.

 Although in the n e g o t i a t i o n s , Poland h a d put forward a cl a i m to set off a part of the

ind emn ity ag ai n s t the c l a i m which s h e put forward in rega rd to social in s u r an ce s in Upper Sil es ia.
But the Court h a s alrea d y h a d occasion to state that i t c a n t a ke no a c c o un t of declar ation s,
ad m is s io n s or p rop osa ls which the Parties m ay h a ve m a d e during direct negotiations
between th em.

ASSIGNM ENT SHEET 7

1. Chapters I, VI, an d XIV of the U.N. Char ter

2. Ar ticles 2 - 3, 26 – 27, 31, and 65 of th e Statute of th e Intern ational Cour t of Justice

3. U.S. v. Bu lgar ia (Aer ial In ciden t o f Ju ly 27, 1955), 1960 I.C.J. 146

Th is case arose out of the in cid ent which was th e su bject of th e proceedin gs in th e case con cern in g th e Aerial
In cid ent of 27 Ju ly 1955 (Israel v. Bu lgaria).

Th is case (Israel v. Bu lgaria) arose ou t of th e destru ction b y Bu lgarian anti -aircraft d efen ce forces of
an aircraft b elon gin g to an Israeli air lin e. Israel in stituted p roceed in gs before th e Court by means of
an App lication in October 1957. Bulgaria havin g ch allen ged th e Cou rt’s jurisd iction to d eal with th e
claim, Israel con tend ed that, sin ce Bulgaria h ad in 1921 accepted th e compu lsory jurisd ict ion of th e
Perman en t Court of International Ju stice for an u nlimited p eriod, th at acceptan ce b ecame app licab le,
wh en Bulgaria was ad mitted to th e Un ited Nation s in 1955, to th e jurisd iction of th e International
Court of Ju stice by virtue of Article 36, p ar agrap h 5, of th e p resent Cou rt’s Statute, wh ich p rovid es
that d eclaration s mad e u nd er th e Statute of th e PCIJ and wh ich are still in force shall b e d eemed , as
b etween th e p arties to th e p resent Court’s Statute, to b e acceptan ces app licab le to th e Internati onal
Court of Ju stice for the p eriod wh ich th ey still have to run an d in accordance with th eir terms. In its
Ju dgment on th e prelimin ary ob jection s, d elivered on 26 May 1959, th e Cou rt found th at it was with out
jurisd iction on th e groun d th at Article 36, p aragrap h 5, was in tend ed to p reserve on ly d eclaration s in
force as b etween States signatories of th e Un ited Nation s Charter, and n ot su b sequ ently to revive
u nd ertakings wh ich h ad lap sed on th e d issolution of th e PCIJ.

Th e aircraft d estroy ed by Bu lgarian an ti-aircraft d efen ce forces was carryin g several Un ited States n ation als,
wh o all lost th eir lives. Th eir Govern men t asked th e Cou rt to fin d Bulgaria liab le for th e losses th ereby cau sed
and to award damages. Bu lgaria filed preliminary ob jection s to the Cou rt’s jurisd iction, b ut, b efore h earin gs
were d ue to op en, the Un ited States in formed th e Court of its d ecision, after furth er con sid eration, not to
p roceed with its application .

Issu e: Wh ether to remove from th e list th e Un ited States' claim for rep aration by Bu lgaria for damage cau sed
b y th e Bulgarian military 's d estru ction , on 27 Ju ly 1955, of an aircraft b elongin g to E l Al Israel Airlin es Ltd,
con sid erin g th e Un ited States' req u est to d iscon tinu e with th e proceedings.
Accord in gly, th e case was removed fr om th e List b y an Ord er of 30 May 1960.

4. El Salvador v. Hond uras (Nicar agua Inter ven tion), 1992 I.C.J. Rep .

5. Por tu gal v. Au str alia (Case Co ncern in g East Timor ), 1995 I.C.J. 90
6. Yu goslavia v. U.S. (Case Con cern in g Legality of Use of For ce), 1999 I.C.J . Rep .

7. The Secretar y -Gener al’s Ro le in Con flict Resolution : Past, Pr esen t and Pur e Con jecture b y Thomas
M . Fr an ck, Lin k: http://www.ejil.or g/p d fs/6/1/1302.pd f

8. Gon zales v. Hech ano va, G.R. No. L -21897, October 22, 1963.
Facts:
66
E xecutive Secretary Hech anova auth orized th e importation of foreign rice to b e pu rchased from private
sources. Gonzales, a rice p lanter, an d p resid ent of th e Iloilo Palay and Corn Plan ters Association, filed a
p etition q u estionin g said act b ecau se Repub lic Act No. 3452 which alle ged ly rep eals or amend s Repu blic Act
N o. 2207 — exp licitly prohibits th e importation of foreign rice by th e Rice and Corn Ad min istration or an y
oth er govern men t agency .

Hech an ova coun tered that th e imp ortation is auth orized b y th e Presid ent for military st ock p ile pu rp oses (th e
p resid ent is du ty -b oun d to p rep are for th e challen ge of threats of war or emergency with out waiting for sp ecial
auth ority). He also conten d s th at th ere is n o prohib ition on importation mad e by th e “Govern men t itself”. He
also fu rth er that th e Govern men t h as alread y en tered into 2 con tracts with Vietnam an d Bu rma; th at th ese
con tracts con stitu te valid executive agreements u nd er in tern ational law; and, that su ch agreemen ts b ecame
b ind in g and effective upon signing th ereof by the rep rese ntatives of both parties. Hechanova also maintain s
that th e statu s of p etition er as a rice p lanter does n ot give h im su fficient in terest to file th e p etition h erein
and secu re th e relief therein p ray ed for and that Gonzales has n ot exhau sted all ad min istra tive remed ies
availab le to h im b efore comin g to court".
Issu es:

1. Does Gonzales h ave su fficien t interest to file th e case?

2. Wh eth er exhau stion of ad min istrative remed ies is req uired in th is case
3. What is th e natu re of th e govern men t contracts with Vie tn am and Burma? Are th ey valid ?

4. May an in ternational agreement b e in valid ated by ou r courts?

Held :

1. Yes. Ap art from prohib itin g th e importation of rice an d corn , RA 3452 d eclares th at "th e policy of th e
Govern ment" is to "en gage in th e pu rchase of th e se b asic food s d irectly from th ose tenan ts, farmers, growers,
p rodu cers and lan downers in th e Ph ilipp in es who wish to d ispose of their p rodu cts at a p rice that will afford
th em a fair an d ju st return for th eir labor an d cap ital in vestment. ... ." Pu rsu ant to th is provision, p etition er,
as a p lan ter with a rice land of sub stan tial p roportion , is en titled to a chance to sell to th e Govern men t th e
rice it n ow seeks to b uy abroad . Moreover, sin ce th e purch ase of said commodity will have to b e effected with
p ublic fu nd s mainly raised by taxation, an d as a rice p rodu cer an d lan down er p etition er mu st n ecessarily b e a
taxpayer, it follows th at h e h as sufficient p erson ality and in terest to seek ju dicial assistance with a view to
restrain in g wh at h e b elieves to b e an attempt to un lawfu lly d isb urse said fund s.

2. No. Th e prin cip le requirin g th e p reviou s exh austion of ad min istrative remed ies is n ot ap plicab le wh ere th e
q u estion in d ispu te is purely a legal on e", or where th e con troverted act is "patently illegal" or was p erformed
with ou t ju risd iction or in excess of ju risdiction, or wh ere th e respond en t is a departmen t secretary, wh ose
acts as an alter -ego of th e Presid ent b ear th e imp lied or assu med ap proval of th e latter, un less actually
d isapp roved by him, or wh ere th e re are circu mstan ces ind icating th e urgen cy of jud icial in tervention. Th e case
at b ar fails un d er each on e of th e foregoin g excep tion s to th e gen eral ru le.

3. Th e parties to said con tracts d o not app ear to h ave regard ed th e same as executive agreemen ts. But, even
assu min g that said con tracts may p rop erly con sidered as executive agreemen ts, th e same are un lawful, as well
as nu ll and void, from a con stitu tion al viewp oint, said agreemen ts b eing incon sistent with th e p rovision s of
Repu blic Acts Nos. 2207 an d 3452. Alth ou gh the Presid ent may, und er th e American con stitu tional system
en ter into executive agreemen ts withou t previou s legislative au th ority, h e may n ot, by executive agreemen t,
en ter in to a tran saction wh ich is p rohibited b y statutes en acted prior th ereto. Und er th e Con stitu tion, th e
main fun ction of th e Executive is to enforce laws enacted by Con gress. Th e former may not in terfere in th e
p erformance of th e legislative p owers of th e latter, except in th e exercise of his veto p ower. He may n ot
d efeat l egislative en actmen ts that h ave acqu ired th e statu s of law, by in directly rep ealin g th e same throu gh
an executive agreement p rovid in g for th e p erforman ce of th e very act p rohibited by said laws.

Un d er Common wealth Act No. 138, in all pu rchases by th e Gover n men t, in cluding th ose mad e by and /or for
th e armed forces, preferen ce shall b e given to materials p rodu ced in th e Ph ilip pin es. Th e imp ortation in volved

67
in th e case at b ar violates th is gen eral p olicy of ou r Govern men t, asid e from th e p rovision s of Rep ubli c Acts
N os. 2207 and 3452.

4. Yes. Th e Con stitu tion of th e Ph ilippin es has clearly settled it in th e affirmative, by providing, in Section 2
of Article VIII th ereof, th at th e Sup reme Cou rt may not b e d eprived "of its ju risdiction to review, revise,
reverse, modify, or affirm on ap p eal, certiorari, or writ of error as th e law or th e ru les of cou rt may p rovide,
final ju dgments and d ecrees of in ferior courts in — (1) All cases in which the con stitution ality or valid ity of
any treaty, law, ordinance, or execu t ive ord er or regu lation is in q u estion ". In oth er word s, our Con stitu tion
auth orizes th e nu llification of a treaty , not only wh en it con flicts with the fund amen tal law, but, also, wh en
it ru n s cou nter to an act of Congress.

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