University of Santo Tomas

Faculty of Civil Law

AY 2019-2020

Case Digest in Public International Law

(The Nature and Sources of International law; Subjects of International Law)

By: Machgielis Aaron R. Depano

Cianel Paulyn M. Dioneda

Juan Gabriel M. Literal

Mary Jo S. Reyes

Alexandra Nicole D. Sugay

2AA
SHIGENORI KURODA, petitioner, vs. Major General RAFAEL JALANDONI, Brigadier
General CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO
BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS,
MELVILLE S. HUSSEY and ROBERT PORT, respondents.
G.R. No. L-2662, EN BANC, March 26, 1949, MORAN, C.J.:
FACTS:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and
Commanding General of the Japanese Imperial Forces in The Philippines comes before this Court
seeking to establish the illegality of Executive Order No. 68 of the President of the Philippines: to
enjoin and prohibit respondents Melville S. Hussey and Robert Port from participating in the
prosecution of petitioner's case before the Military Commission and to permanently prohibit
respondents from proceeding with the case of petitioners.
In support of his case Kuroda tenders the following principal argument:
That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our
constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a
signatory nor an adherent to The Hague Convention on Rules and Regulations covering Land
Warfare and therefore petitioners is charged of 'crimes' not based on law, national and
international."
ISSUE: Whether or not Executive Order 68 had violated the provisions of our constitutional law.
RULING:
No, petition is denied
In accordance with the generally accepted principle of international law of the present day
including the Hague Convention the Geneva Convention and significant precedents of
international jurisprudence established by the United Nation all those person military or civilian
who have been guilty of planning preparing or waging a war of aggression and of the commission
of crimes and offenses consequential and incidental thereto in violation of the laws and customs
of war, of humanity and civilization are RULING: accountable therefor. Consequently, in the
promulgation and enforcement of Execution Order No. 68 the President of the Philippines has
acted in conformity with the generally accepted and policies of international law which are part of
our Constitution.
The promulgation of said executive order is an exercise by the President of his power as
Commander in chief of all our armed forces as upRULING: by this Court in the case of
Yamashita vs. Styer.
The President as Commander in Chief is fully empowered to consummate this unfinished aspect
of war namely the trial and punishment of war criminal through the issuance and enforcement of
Executive Order No. 68.
 It cannot be denied that the rules and regulation of The Hague and Geneva conventions form, part
of and are wholly based on the generally accepted principals of international law. In FACTS these
rules and principles were accepted by the two belligerent nation the United State and Japan who
were signatories to the two Convention, Such rule and principles therefore form part of the law of
our nation even if the Philippines was not a signatory to the conventions embodying them for our
Constitution has been deliberately general and extensive in its scope and is not confined to the
recognition of rule and principle of international law as continued inn treaties to which our
government may have been or shall be a signatory.

CO KIM CHAM (alias CO KIM CHAM), petitioner, vs. EUSEBIO VALDEZ TAN KEH
and ARSENIO P. DIZON, Judge of First Instance of Manila, respondents.
FACTS:

This petition for mandamus in which petitioner prays that the respondent judge of the lower court
be ordered to continue the proceedings in civil case No. 3012 of said court, which were initiated
under the regime of the so-called Republic of the Philippines established during the Japanese
military occupation of these Islands.

The respondent judge refused to take cognizance of and continue the proceedings in said case on
the ground that the proclamation issued on October 23, 1944, by General Douglas MacArthur had
the effect of invalidating and nullifying all judicial proceedings and judgements of the court of the
Philippines under the Philippine Executive Commission and the Republic of the Philippines
established during the Japanese military occupation, and that, furthermore, the lower courts have
no jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of
the defunct Republic of the Philippines in the absence of an enabling law granting such authority.
And the same respondent, in his answer and memorandum filed in this Court, contends that the
government established in the Philippines during the Japanese occupation were no de
facto governments.

ISSUE:
Whether the judicial acts and proceedings of the court existing in the Philippines under the
Philippine Executive Commission and the Republic of the Philippines were good and valid and
remained so even after the liberation or reoccupation of the Philippines by the United States and
Filipino forces
RULING:

It is a legal truism in political and international law that all acts and proceedings of the legislative,
executive, and judicial departments of a de facto government are good and valid. The question to
be determined is whether or not the governments established in these Islands under the names of
the Philippine Executive Commission and Republic of the Philippines during the Japanese military
occupation or regime were de facto governments. If they were, the judicial acts and proceedings
of those governments remain good and valid even after the liberation or reoccupation of the
Philippines by the American and Filipino forces.

There are several kinds of de facto governments. The first, or government de facto in a proper legal
sense, is that government that gets possession and control of, or usurps, by force or by the voice
of the majority, the rightful legal governments and maintains itself against the will of the latter,
such as the government of England under the Commonwealth, first by Parliament and later by
Cromwell as Protector. The second is that which is established and maintained by military forces
who invade and occupy a territory of the enemy in the course of war, and which is denominated a
government of paramount force, as the cases of Castine, in Maine, which was reduced to British
possession in the war of 1812, and Tampico, Mexico, occupied during the war with Mexico, by
the troops of the United States. And the third is that established as an independent government by
the inhabitants of a country who rise in insurrection against the parent state of such as the
government of the Southern Confederacy in revolt not concerned in the present case with the first
kind, but only with the second and third kinds of de facto governments.

The powers and duties of de facto governments of this description are regulated in Section III of
the Hague Conventions of 1907, which is a revision of the provisions of the Hague Conventions
of 1899 on the same subject of said Section III provides "the authority of the legislative power
having actually passed into the hands of the occupant, the latter shall take steps in his power to
reestablish and insure, as far as possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country."
In view of the foregoing, it is evident that the Philippine Executive Commission, which was
organized by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese forces,
was a civil government established by the military forces of occupation and therefore a de
facto government of the second kind. It was not different from the government established by the
British in Castine, Maine, or by the United States in Tampico, Mexico. As Halleck says, "The
government established over an enemy's territory during the military occupation may exercise all
the powers given by the laws of war to the conqueror over the conquered, and is subject to all
restrictions which that code imposes. It is of little consequence whether such government be called
a military or civil government. Its character is the same and the source of its authority the same.
In either case it is a government imposed by the laws of war, and so far it concerns the inhabitants
of such territory or the rest of the world, those laws alone determine the legality or illegality of its
acts." (Vol. 2, p. 466.) The fact that the Philippine Executive Commission was a civil and not a
military government and was run by Filipinos and not by Japanese nationals, is of no consequence.
In 1806, when Napoleon occupied the greater part of Prussia, he retained the existing
administration under the general direction of a french official (Langfrey History of Napoleon, 1,
IV, 25); and, in the same way, the Duke of Willington, on invading France, authorized the local
authorities to continue the exercise of their functions, apparently without appointing an English
superior. (Wellington Despatches, XI, 307.). The Germans, on the other hand, when they invaded
France in 1870, appointed their own officials, at least in Alsace and Lorraine, in every department
of administration and of every rank. (Calvo, pars. 2186-93; Hall, International Law, 7th ed., p.
505, note 2.)
The so-called Republic of the Philippines, apparently established and organized as a sovereign
state independent from any other government by the Filipino people, was, in truth and reality, a
government established by the belligerent occupant or the Japanese forces of occupation. It was of
the same character as the Philippine Executive Commission, and the ultimate source of its authority
was the same — the Japanese military authority and government. As General MacArthur stated in
his proclamation of October 23, 1944, a portion of which has been already quoted, "under enemy
duress, a so-called government styled as the 'Republic of the Philippines' was established on
October 14, 1943, based upon neither the free expression of the people's will nor the sanction of
the Government of the United States." Japan had no legal power to grant independence to the
Philippines or transfer the sovereignty of the United States to, or recognize the latent sovereignty
of, the Filipino people, before its military occupation and possession of the Islands had matured
into an absolute and permanent dominion or sovereignty by a treaty of peace or other means
recognized in the law of nations. For it is a well-established doctrine in International Law,
recognized in Article 45 of the Hauge Conventions of 1907 (which prohibits compulsion of the
population of the occupied territory to swear allegiance to the hostile power), the belligerent
occupation, being essentially provisional, does not serve to transfer sovereignty over the territory
controlled although the de jure government is during the period of occupancy deprived of the
power to exercise its rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United
States vs. Rice, 4 Wheat., 246; Fleming vs. Page, 9 Howard, 603; Downes vs. Bidwell, 182 U. S.,
345.) The formation of the Republic of the Philippines was a scheme contrived by Japan to delude
the Filipino people into believing in the apparent magnanimity of the Japanese gesture of
transferring or turning over the rights of government into the hands of Filipinos. It was established
under the mistaken belief that by doing so, Japan would secure the cooperation or at least the
neutrality of the Filipino people in her war against the United States and other allied nations.

BORIS MEJOFF v. THE DIRECTOR OF PRISONS

G.R. No. L-4254, September 26, 1951
Tuason, J.

FACTS:

Boris Mejoff, a Russian, was captured as a Japanese spy by the US Army Counter
Intelligence Corps on March 18, 1948. He was turned over to the Phil Commonwealth Government
for appropriate disposition. His case was decided on by the Board of Commissioners of
Immigration who declared him as an illegal alien. The Board ordered his immediate deportation.
In the meantime, we was placed in prison awaiting the ship that will take him back home to Russia.
Two Russian boats have been requested to bring him back to Russia but the masters refused as
they had no authority to do so. Two years passed and Mejoff is still under detention awaiting the
ship that will take him home. This case is a petition for habeas corpus. However, the Director of
Prisons RULING: that the Mejoff should stay in temporary detention as it is a necessary step in
the process of exclusion or expulsion of undesirable aliens. It further states that is has the right to
do so for a reasonable length of time.
ISSUE: Whether or not Mejoff should be released from prison awaiting his deportation.

RULING:

The Supreme Court decided that Mejoff be released from custody but be placed under
reasonable surveillance of the immigration authorities to insure that he keep peace and be available
when the Government is ready to deport him. In the doctrine of incorporation, the Philippines in
its constitution adopts the Generally Accepted Principles of International Law as part of the Law
of Nations. Also, the Philippines has joined the United Nations in its Resolution entitled “Universal
Declaration of Human Rights” in proclaiming that life and liberty and all other fundamental rights
shall be applied to all human beings. The contention that he remains a threat of to the security of
the country is unfounded as Japan and the US or the Philippines are no longer at war.

DONALD BAER, Commander U.S. Naval Base, Subic Bay, Olongapo, Zambales vs. HON.
TITO V. TIZON, as Presiding Judge of the Court of First Instance of Bataan and
EDGARDO GENER
G.R. No. L-24294

May 3, 1974

FACTS:

On November 17, 1964, respondent Edgardo Gener, as plaintiff, led a complaint for
injunction with the Court of First Instance of Bataan against petitioner, Donald Baer, Commander
of the United States Naval Base in Olongapo. He alleged that he was engaged in the business of
logging in an area situated in Barrio Mabayo, Municipality of Morong, Bataan and that the
American Naval Base authorities stopped his logging operations. He prayed for a writ of
preliminary injunction restraining petitioner from interfering with his logging operations. A
restraining order was issued by respondent Judge. Counsel for petitioner, upon instructions of the
American Ambassador to the Philippines, entered their appearance for the purpose of contesting
the jurisdiction of respondent Judge on the ground that the suit was one against a foreign sovereign
without its consent. Then, on December 12, 1964, petitioner led a motion to dismiss, wherein such
ground was reiterated. It was therein pointed out that he is the chief or head of an agency or
instrumentality of the United States of America, with the subject matter of the action being official
acts done by him for and in behalf of the United States of America. It was added that in directing
the cessation of logging operations by respondent Gener within the Naval Base, petitioner was
entirely within the scope of his authority and official duty, the maintenance of the security of the
Naval Base and of the installations therein being the first concern and most important duty of the
Commander of the Base.
 The respondent Judge, on January 12, 1965, issued an order granting respondent Gener's
application for the issuance of a writ of preliminary injunction and denying petitioner's motion to
dismiss the opposition to the application for a writ of preliminary injunction. A motion for
reconsideration having proved futile, this petition for certiorari was led with this Court.

Issue:

WHETHER OR NOT the doctrine of immunity from suit without consent is applicable.

RULING:

YES. It is well settled that a foreign army, permitted to march through a friendly country
or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and
criminal jurisdiction of the place.
In Parreño v. McGranery, as the following excerpt from the opinion of Justice Tuason
clearly shows: "It is a widely accepted principle of international law, which is made a part of the
law of the land (Article II, Section 3 of the Constitution), that a foreign state may not be brought
to suit before the courts of another state or its own courts without its consent."

The solidity of the stand of petitioner is therefore evident. What was sought by private
respondent and what was granted by respondent Judge amounted to an interference with the
performance of the duties of petitioner in the base area in accordance with the powers possessed
by him under the Philippine-American Military Bases Agreement.

WIGBERTO E. TAÑADA et al, in representation of various taxpayers and as non-

governmental organizations, petitioners, vs. EDGARDO ANGARA, et al, respondents.

FACTS:
After the concurrence of the Senate, then President Fidel V. Ramos ratified the World
Trade Organization with the goal of improving "Philippine access to foreign markets, especially
its major trading partners, through the reduction of tariffs on its exports, particularly agricultural
and industrial products."
Then, Sen. Wigberto Tanada, with other lawmakers, taxpayers, and various NGOs
instituted a petition to nullify the Philippine ratification of the World Trade Organization (WTO)
Agreement. They argued that this will be detrimental to the growth of the National Economy and
will run contrary to the “Filipino First” policy. More so, The WTO opens access to foreign markets,
especially its major trading partners, through the reduction of tariffs on its exports, particularly
agricultural and industrial products. Thus, provides new opportunities for the service sector cost
and uncertainty associated with exporting and more investment in the country.
 Petitioners also contends that it conflicts with the provisions of the 1987 Constitution,
because the said Agreement is an assault on the sovereign powers of the Philippines. It hindered
Congress to pass legislation that would be good for national interest and general welfare if such
legislation would not conform to the WTO Agreement.

ISSUE: Whether or not the provisions of the WTO cited by petitioners directly contravene the
Constitution. (NO)

RULING:
In its Declaration of Principles and State Policies, the Constitution adopts the generally
accepted principles of international law as part of the law of the land, and adheres to the policy of
peace, equality, justice, freedom, cooperation and amity, with all nations. By the doctrine of
incorporation, the country is bound by generally accepted principles of international law, which
are considered to be automatically part of our own laws. A state which has contracted valid
international obligations is bound to make in its legislations such modifications as may be
necessary to ensure the fulfillment of the obligations undertaken.
By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By
their voluntary act, nations may surrender some aspects of their state power in exchange for greater
benefits granted by or derived from a convention or pact. After all, states, like individuals, live
with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly
agree to limit the exercise of their otherwise absolute rights. As shown by the foregoing treaties
Philippines has entered, a portion of sovereignty may be waived without violating the Constitution,
based on the rationale that the Philippines “adopts the generally accepted principles of international
law as part of the law of the land and adheres to the policy of cooperation and amity with all
nations.”
While the Constitution indeed mandates a bias in favor of Filipino goods, services, labor
and enterprises, at the same time, it recognizes the need for business exchange with the rest of the
world on the bases of equality and reciprocity and limits protection of Filipino enterprises only
against foreign competition and trade practices that are unfair. In other words, the Constitution did
not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and
services in the development of the Philippine economy. While the Constitution does not encourage
the unlimited entry of foreign goods, services and investments into the country, it does not prohibit
them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only
on foreign competition that is unfair.

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners, vs. HONORABLE

EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY GLORIA
 MACAPAGAL-ARROYO, and HONORABLE ANGELO REYES in his capacity as
Secretary of National Defense, respondents.
G.R. No. 151445, EN BANC, April 11, 2002, DE LEON, JR., J.:
FACTS:
Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed forces
of the United States of America started arriving in Mindanao to take part in "Balikatan 02-1” on
January 2002.
On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for
certiorari and prohibition, attacking the constitutionality of the joint exercise. They were joined
subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-Iist
organizations, who filed a petition-in-intervention on February 11, 2002.
The Solicitor General comments that hat there is actually no question of constitutionality involved.
The true object of the instant suit, it is said, is to obtain an interpretation of the V FA. The Solicitor
General asks that we accord due deference to the executive determination that "Balikatan 02-1" is
covered by the VFA, considering the President's monopoly in the field of foreign relations and her
role as commander-in-chief of the Philippine armed forces.
ISSUE: Whether "Balikatan 02-1" is covered by the Visiting Forces Agreement.
RULING:
Yes, petition is dismissed.
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.
From the perspective of public international law, a treaty is favored over municipal law pursuant
to the principle of pacta sunt servanda. Hence, "every treaty in force is binding upon the parties
to it and must be performed by them in good faith." Further, a party to a treaty is not allowed to
"invoke the provisions of its internal law as justification for its failure to perform a treaty."
Under the expanded concept of judicial power under the Constitution, courts are charged with the
duty "to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government.” From the
FACTS obtaining, we find that the holding of "Balikatan 02-1" joint military exercise has not
intruded into that penumbra of error that would otherwise call for correction on our part. In other
words, respondents in the case at bar have not committed grave abuse of discretion amounting to
lack or excess of jurisdiction.

TOMOYUKI YAMASHITA, petitioner, vs. WILHELM D. STYER, Commanding General,

United States Army Forces, Western Pacific, respondent.

FACTS:
Tomoyuki Yamashita, erstwhile commanding general of the 14th army group of the Japanese
Imperial Army in the Philippines, and now charged before an American Military Commission with
the most monstrous crimes ever committed against the American and Filipino peoples, comes to
this Court with a petition for habeas corpus and prohibition against Lt. Gen. Wilhelm D. Styer,
Commanding General of the United States Army Forces, Western Pacific. It is alleged therein that
petitioner after his surrender became a prisoner of war of the United States of America but was
later removed from such status and placed in confinement as an accused war criminal charged
before an American Military Commission constituted by respondent Lieutenant General Styer; and
he now asks that he be reinstated to his former status as prisoner of war, and that the Military
Commission be prohibited from further trying him, upon the following grounds:

(1) That the Military Commission was not duly constituted, and, therefore, it is without
jurisdiction;

(2) That the Philippines cannot be considered as an occupied territory, and the Military
Commission cannot exercise jurisdiction therein;

(3) That Spain, the "protecting power" of Japan, has not been given notice of the implementing
trial against petitioner, contrary to the provisions of the Geneva Convention of July 27, 1892, and
therefore, the Military Commission has no jurisdiction to try the petitioner;

(4) That there is against the petitioner no charge of an offense against the laws of war; and

(5) That the rules of procedure and evidence under which the Military Commission purports to be
acting denied the petitioner a fair trial.

ISSUE:

Whether the petition for habeas corpus maybe granted.

RULING:

We believe and so hold that the petition for habeas corpus is untenable. It seeks no discharge of
petitioner from confinement but merely his restoration to his former status as a prisoner of war, to
be interned, not confined. The relative difference as to the degree of confinement in such cases is
a matter of military measure, disciplinary in character, beyond the jurisdiction of civil courts.

Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The military
Commission is not made party respondent in this case, and although it may be acting, as alleged,
without jurisdiction, no order may be issued in these case proceedings requiring it to refrain from
trying the petitioner.

Furthermore, this Court has no jurisdiction to entertain the petition even if the commission be
joined as respondent. As we have said in Raquiza vs. Bradford (pp. 50, 61, ante), ". . . an attempt
of our civil courts to exercise jurisdiction over the United States Army before such period (state
of war) expires, would be considered as a violation of this country's faith, which this Court should
not be the last to keep and uphold." (Emphasis supplied) We have said this in a case where Filipino
citizens were under confinement, and we can say no less in a case where the person confined is an
enemy charged with the most heinous atrocities committed against the American and Filipino
peoples.

The Commission has been validly constituted by Lieutenant General Styer duly issued by General
Douglas MacArthur, Commander in Chief, United States Army Force Pacific, in accordance in
authority vested in him and with radio communication from the Joint Chiefs of Staff, as shown by
Exhibits C, E, G, and H, attached by petition. Under paragraph 356 of the Rules of the Land
Welfare a Military Commission for the trial and punishment of the war criminals must be
designated by the belligerent. And the belligerent's representative in the present case is none other
than the Commander in Chief of the United States Army in the Pacific. According to the
Regulations Governing the Trial of the War Criminals in the Pacific, attached as Exhibit F to the
petition, the "trial of persons, units and organizations accused as a war criminals will be the
Military Commissions to be convened by or under the authority of the Commander in Chief, United
States Army Forces, Pacific." Articles of War Nos. 12 and 15 recognized the "Military
Commission" appointed by military command as an appropriate tribunal for the trial and
punishment of offenses against the law of the war not ordinarily tried by court martial. (Ex
parte Quirin, supra.) And this has always been the United States military practice at since the
Mexican War of 1847 when General Winfield Scott took the position that, under the laws of war,
a military commander has an implied power to appoint and convene a Military Commission. This
is upon the theory that since the power to create a Military Commission is an aspect of waging
war, Military Commanders have that power unless expressly withdrawn from them.

The Military Commission thus duly constituted has jurisdiction both over the person of the
petitioner and over the offenses with which he is charged. It has jurisdiction over the person of the
petitioner by reason of his having fallen into the hands of the United States Army Forces. Under
paragraph 347 of the Rules of the Land Warfare, "the commanders ordering the commission of
such acts, or under whose authority they are committed by their troops, may be punished by the
belligerent into whose hands they may fall."

As to the jurisdiction of the Military Commission over war crimes, the Supreme Court of the
United States said:

From the very beginning of its history this Court has recognized and applied the law of war
as including that part of the law of nations which prescribes, for the conduct of war, the
status rights and duties and of enemy nations as well as of enemy individuals. By the
Articles of War, and especially Article 15, Congress has explicitly provided, so far as it
may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or
offenses against the law of war in appropriate cases. Congress, in addition to making rules
for the government of our Armed Forces, has thus exercised its authority to define and
punish offenses against the law of nations by sanctioning, within constitutional limitations,
the jurisdiction of military commissions to try persons and offenses which, according to
the rules and precepts of the law of nations, and more particularly the law of war, are
cognizable by such tribunals. (Ex parte Quirin, 317 U.S. 1, 27-28; 63 Sup. Ct., 2.)
Petitioner is charged before the Military Commission sitting at Manila with having permitted
members of his command "to commit brutal atrocities and other high crimes against the people of
the United States and of its allies and dependencies, particularly the Philippines," crimes and
atrocities which in the bills of particulars, are described as massacre and extermination of thousand
and thousands of unarmed noncombatant civilians by cruel and brutal means, including bayoneting
of children and raping of young girls, as well as devastation and destruction of public, or private,
and religious property for no other motive than pillage and hatred. These are offenses against the
laws of the war as described in paragraph 347 of the Rules of Land Warfare.

EREMES KOOKOORITCHKIN v. THE SOLICITOR GENERAL

G.R. No. L-1812, August 27, 1948
Perfecto, J.

FACTS:
Kookooritchkin, a former Russian citizen, filed a petition for naturalization, accompanied
with supporting affidavits of 2 citizens, copy of a sworn declaration of intention and proper notice
of the hearing. He grew up as a citizen of the defunct Imperial Russian Government under the
Czars. World War I found him in the military service of this Government. When revolution broke
out, he refused to join the regime and fled by sea from to Shanghai and from this Chinese port he
found his way to Manila then moved to Olongapo and from this place he went to Iriga, Camarines
Sur, where he established his permanent residence. The applicant is married to a Filipino woman
with whom he has one son. Although a Russian by birth he is not a citizen of Soviet Russia. He
disclaims allegiance to the present Communist Government of Russia. He is, therefore, a stateless
refugee in this country, belonging to no State, much less to the present Government of the land of
his birth to which he is uncompromisingly opposed. Due to Japanese invasion, the case was
suspended and the documents presented were destroyed. The case was reconstituted after the war
and a resolution was eventually issued granting the petition. Hence this appeal.

ISSUE: Whether or not the lower court erred in finding appellee stateless and not a Russian citizen
and in not finding that he has failed to establish that he is not disqualified for Philippine citizenship
under section 4 (h) of the Revised Naturalization Law.

RULING: It is contended that petitioner failed to show that under the laws of Russia,
appellee has lost his Russian citizenship and failed to show that Russia grants to Filipinos the right
to become naturalized citizens or subjects thereof. The controversy centers on the question as to
whether petitioner is a Russian citizen or is stateless. We do not believe that the lower court erred
in pronouncing appellee stateless. Appellee's testimony, besides being uncontradicted, is supported
by the well-known fact that the ruthlessness of modern dictatorship has scattered throughout the
world a large number of stateless refugees or displaced persons, without country and without flag.
The tyrannical intolerance of said dictatorships toward all opposition induced them to resort to
beastly oppression, concentration camps and blood purges, and it is only natural that the not-so-
fortunate ones who were able to escape to foreign countries should feel the loss of all bonds of
attachment to the hells which were formerly their fatherland's. Petitioner belongs to that group of
stateless refugees.

North Sea Continental Shelf Case

ICJ Reports 1969

FACTS:
The dispute is related to the delimitation of the continental shelf between the Federal
Republic of Germany and Denmark on the one hand, and between the Federal Republic of
Germany and the Netherlands on the other. The Parties asked the Court to state the principles and
rules of International Law applicable, and undertook thereafter to carry out the delimitations on
that basis.

The Court rejected the contention of Denmark and the Netherlands to the effect that the
delimitations in question had to be carried out in accordance with the principle of equidistance as
defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf.

Issue: WHETHER OR NOT through positive law processes, the equidistance principal must be
regarded as a rule of Customary International Law.

RULING:

NO. The court considered that the principle of equidistance, had not been proposed by the
International Law Commission as an emerging rule of customary international law. This was
confirmed by the fact that any State might make reservations in respect of Art. 6.

In order for this process to occur it was necessary that Art. 6 of the Convention should, at
all events potentially, be of a norm-creating character. Art. 6 was so framed, however, as to put
the obligation to make use of the equidistance method after a primary obligation to effect
delimitation by agreement. Furthermore, the part played by the notion of special circumstances in
relation to the principle, the controversies as to the exact meaning and scope of that notion, and
the faculty of making reservations to Art. 6 must all raise doubts as to the potentially norm-creating
character of that Article.

Furthermore, while a very widespread and representative participation in a convention

might show that a conventional rule had become a general rule of international law, in the present
case the number of ratifications and accessions so far was hardly sufficient. As regards the time
element, although the passage of only a short period of time was not necessarily a bar to the
formation of a new rule of customary international law on the basis of what was originally a purely
conventional rule, it was indispensable that State practice during that period, including that of
States whose interests were specially affected, should have been both extensive and virtually
uniform in the sense of the provision invoked and should have occurred in such a way as to show
a general recognition that a rule of law was involved. Some 15cases had been cited in which the
States concerned had agreed to draw or had drawn the boundaries concerned according to the
principle of equidistance, but there was no evidence that they had so acted because they had felt
legally compelled to draw them in that way by reason of a rule of customary law. The cases cited
were inconclusive and insufficient evidence of a settled practice.

South-West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa); Second
Phase, International Court of Justice (ICJ), 18 July 1966

FACTS:
The Applicants, acting in the capacity of States which were members of the former League
of Nations, put forward various allegations of contraventions of the League of Nations Mandate
for South West Africa by the Republic of South Africa.
The contentions of the Parties covered, among others, the following issues: whether the
Mandate for South West Africa was still in force and, if so, whether the Mandatory's obligation to
furnish annual reports on its administration to the Council of the League of Nations had become
transformed into an obligation so to report to the General Assembly of the United Nations; whether
the Respondent had, in accordance with the Mandate, promoted to the utmost the material and
moral well-being and the social progress of the inhabitants of the territory, whether the Mandatory
had contravened the prohibition in the Mandate of the "military training of the natives" and the
establishment of military or naval bases or the erection of fortifications in the territory; and whether
South Africa had contravened the provision in the Mandate that it (the Mandate) can only be
modified with the consent of the Council of the League of Nations, by attempting to modify the
Mandate without the consent of the United Nations General Assembly, which, it was contended
by the Applicants, had replaced the Council of the League for this and other purposes.
ISSUE: Whether or not the Mandate skill subsisted at all and the other was the question of the
Applicants' standing in this phase of the proceedings - i.e. their legal right or interest regarding the
subject matter of their claims (NO)

RULING:
Attention must be paid to the juridical character and structure of the institution, the League
of Nations, within the framework of which the mandates system was organized. A fundamental
element was that Article 2 of the Covenant provided that the "action of the League under this
Covenant shall be effected through the instrumentality of an Assembly and of a Council, with a
permanent Secretariat". Individual member States could not themselves act differently relative to
League matters unless it was otherwise specially so provided by some article of the Covenant.
Individual member States of the League could take part in the administrative process only
through their participation in the activities of the organs by means of which the League was entitled
to function. They had no right of direct intervention relative to the mandatories: this was the
prerogative of the League organs.
It might be said that in so far as the Court's view led to the conclusion that there was now
no entity entitled to claim the due performance of the Mandate, it must be unacceptable, but if a
correct legal reading of a given situation showed certain alleged rights to be non-existent, the
consequences of this must be accepted. To postulate the existence of such rights in order to avert
those consequences would be to engage in an essentially legislative task, in the service of political
ends.
ASYLUM CASE, ICJ REPORTS, 1950
FACTS:
On October 3rd. 1948, a military rebellion broke out in Peru; it was suppressed the same day. On
the following day, a decree was published charging a political party, the American People's
Revolutionary Party, with having prepared and directed the rebellion.
The head of the Party, Victor Ratil Maya de la Torre, was denounced as being responsible. On
January 3rd. 1949, he was granted asylum in the Colombian Embassy in Lima.
On January 4th, 1949, the Colombian Ambassador in Lima informed the Peruvian Government of
the asylum granted to Haya de la Tom; at the same time, he asked that a safe-conduct be issued to
enable the refugee to leave the country. On January 14th, he further stated that the refugee had
been qualified as a political refugee. The Peruvian Government disputed this qualification and
refused to grant a safe-conduct.
ISSUES:
1. Whether Colombia is competent, as the country that grants asylum, to unilaterally qualify
the offence for the purpose of asylum under treaty law and international law?
 2. Whether or not Peru is bound to give safe passage
3. Whether or not Columbia violated Article 1 and 2 (2) of the Convention on Asylum of
1928 (hereinafter called the Havana Convention) when it granted asylum and is
the continued maintenance of asylum a violation of the treaty?
RULING:
As to the first issue:
The court RULING: that there was no expressed or implied right of unilateral and definitive
qualification of the State that grants asylum under the Havana Convention or relevant principles
of international law. The Montevideo Convention of 1933, which accepts the right of unilateral
qualification, and on which Colombia relied to justify its unilateral qualification, was not ratified
by Peru. The Convention, per say, was not binding on Peru and considering the low numbers of
ratifications the provisions of the latter Convention cannot be said to reflect customary
international law.
The court RULING: that Colombia did not establish the existence of a regional custom because it
failed to prove consistent and uniform usage of the alleged custom by relevant States. The court
RULING: that even if Colombia could prove that such a regional custom existed, it would not be
binding on Peru, because Peru “far from having by its attitude adhered to it, has, on the contrary,
repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which
were the first to include a rule concerning the qualification of the offence [as “political” in nature]
in matters of diplomatic asylum.”
On to the second issue:
The court RULING: that there was no legal obligation on Peru to grant safe passage either because
of the Havana Convention or customary law. In the case of the Havana Convention, a plain reading
of Article 2 results in an obligation on the territorial state (Peru) to grant safe passage only after it
requests the asylum granting State (Colombia) to send the person granted asylum outside its
national territory (Peru). In this case the Peruvian government had not asked that Torre leave Peru.
On the contrary, it contested the legality of asylum granted to him and refused to grant safe
conduct.
Finally, the third issue:
Article 2 (2) of the Havana Convention states that “Asylum granted to political offenders in
legations, warships, military camps or military aircraft, shall be respected to the extent in which
allowed, as a right or through humanitarian toleration, by the usages, the conventions or the laws
of the country in which granted and in accordance with the following provisions: First: Asylum
may not be granted except in urgent cases and for the period of time strictly indispensable for the
person who has sought asylum to ensure in some other way his safety.
Torre was accused of a crime but he could not be tried in a court because Colombia granted him
asylum. The court RULING: that “protection from the operation of regular legal proceedings” was
not justified under diplomatic asylum.
Asylum may be granted on “humanitarian grounds to protect political prisoners against the violent
and disorderly action of irresponsible sections of the population.” (for example during a mob attack
where the territorial State is unable to protect the offender). Torre was not in such a situation at
the time when he sought refuge in the Colombian Embassy at Lima.
Finally, the court concluded that the grant of asylum and reasons for its prolongation were not in
conformity with Article 2(2) of the Havana Convention

NUCLEAR TEST CASES, ICJ Reports

NEW ZEALAND VS. FRANCE

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

ISSUE:

May declaration made through unilateral act has effect of creating legal obligations?

RULING:

Yes. Declaration made through unilateral acts may have the effect of creating legal obligations. In
this case, the statement made by the President of France must be RULING: to constitute an
engagement of the State in regard to the circumstances and intention with which they were made.
Therefore, these statement made by the France (D) are relevant and legally binding. Application
was dismissed. The unilateral statements made by French authorities were first relayed to the
government of Australia. There was no need for the statements to be directed to any particular
state for it to have legal effect. The general nature and characteristics of the statements alone were
relevant for evaluation of their legal implications.

AUSTRALIA VS. FRANCE

On 9 May 1973, Australia and New Zealand each instituted proceedings against France concerning
tests of nuclear weapons which France proposed to carry out in the atmosphere in the South Pacific
region. France stated that it considered the Court manifestly to lack jurisdiction and refrained from
appearing at the public hearings or filing any pleadings. By two Orders of 22 June 1973, the Court,
at the request of Australia and New Zealand, indicated provisional measures to the effect, inter
alia , that pending judgment France should avoid nuclear tests causing radioactive fall-out on
Australian or New Zealand territory. By two Judgments delivered on 20 December 1974, the Court
found that the Applications of Australia and New Zealand no longer had any object and that it was
therefore not called upon to give any decision thereon. In so doing the Court based itself on the
conclusion that the objective of Australia and New Zealand had been achieved inasmuch as France,
in various public statements, had announced its intention of carrying out no further atmospheric
nuclear tests on the completion of the 1974 series.

ISSUE: Whether the countries are entitled to relief.

RULING:

The International Court of Justice delivered judgment in the case concerning Nuclear Tests
(New Zealand v. France). By 9 votes to 6, the court found that the claim of New Zealand no longer
had any object and the court was therefore not called upon to give a decision thereon. In the
reasoning of its Judgment, the court adduced, inter alia the following considerations: Even before
turning to the questions of jurisdiction and admissibility, the Court had first to consider the
essentially preliminary question as to whether a dispute existed and to analyze the claim submitted
to it (paras. 22-24 of Judgment); the proceedings instituted before the Court on May 1973
concerned the legality of atmospheric nuclear tests conducted by France in the South Pacific (par.
16 of Judgment); the original and ultimate objective of New Zealand was to obtain a termination
of those tests (paras. 25-31 of Judgment); France, by various public statements made in 1974,
announced its intention following the completion of the 1974 series of atmospheric tests, to cease
the conduct of such tests (paras. 33-44 of Judgment); the Court found that the objective of New
Zealand had in effect been accomplished, inasmuch as France had undertaken the obligation to
hold no further nuclear tests in the atmosphere in the South Pacific (paras. 50-55 of Judgment);
the dispute having thus disappeared, the claim no longer had any object and there was nothing on
which to give judgment (paras. 58-62 of Judgment).

REQUEST FOR AN EXAMINATION OF THE SITUATION IN ACCORDANCE WITH

PARAGRAPH 63 OF THE COURT’S JUDGMENT OF THE 20 DECEMBER 1974

FACTS:

On 21 August 1995, the New Zealand Government filed in the Registry a document entitled
“Request for an Examination of the Situation” in which reference was made to a “proposed action
announced by France which will, if carried out, affect the basis of the Judgment rendered by the
Court on 20 December 1974 in the Nuclear Tests (New Zealand v. France) case”, namely “a
decision announced by France in a media statement of 13 June 1995” by the President of the French
Republic, according to which “France would conduct a final series of eight nuclear weapons tests
in the South Pacific starting in September 1995”. In that Request, the Court was reminded that, at
the end of its 1974 Judgment, it had found that it was not called upon to give a decision on the
claim submitted by New Zealand in 1973, that claim no longer having any object, by virtue of the
declarations by which France had undertaken not to carry out further atmospheric nuclear tests.
That Judgment contained a paragraph 63 worded as follows

“Once the Court has found that a State has entered into a commitment concerning its future conduct
it is not the Court’s function to contemplate that it will not comply with it. However, the Court
observes that if the basis of this Judgment were to be affected, the Applicant could request an
examination of the situation in accordance with the provisions of the Statute . . .”

New Zealand asserted that this paragraph gave it the “right”, in such circumstances, to request “the
resumption of the case begun by application on 9 May 1973”, and observed that the operative part
of the Judgment concerned could not be construed as showing any intention on the part of the
Court definitively to close the case. On the same day, the New Zealand Government also filed in
the Registry a “Further Request for the Indication of Provisional Measures” in which reference
was made, inter alia, to the Order for the indication of provisional measures made by the Court on
22 June 1973, which was principally aimed at ensuring that France would refrain from conducting
any further nuclear tests at Mururoa and Fangataufa Atolls.

ISSUE: Whether or not the request of New Zealand should be granted.

RULING:
After holding public hearings on 11 and 12 September 1995, the Court made its Order on 22
September 1995. The Court found that, when inserting into paragraph 63 the sentence “the
Applicant could request an examination of the situation in accordance with the provisions of the
Statute”, it had not excluded a special procedure for access to it (unlike those mentioned in the
Court’s Statute, such as the filing of a new application, or a request for interpretation or revision,
which would have been open to the Applicant in any event) ; however, it found that that special
procedure would only be available to the Applicant if circumstances were to arise which affected
the basis of the 1974 Judgment. And that, it found, was not the case, as the decision announced by
France in 1995 had related to a series of underground tests, whereas the basis of the Judgment of
1974 was France’s undertaking not to conduct any further atmospheric nuclear tests.
Consequently, New Zealand’s Request for provisional measures and the Applications for
permission to intervene submitted by Australia, Samoa, Solomon Islands, the Marshall Islands and
the Federated States of Micronesia as well as the Declarations of Intervention made by the last
four States, all of which were proceedings incidental to New Zealand’s main request, likewise had
to be dismissed.

LEGALITY OF THE USE BY A STATE OF NUCLEAR WEAPONS

ICJ Reports, July 8, 1996

FACTS: An advisory opinion on this issue was originally requested by the World Health
Organization (WHO) on 3 September 1993 asking “In view of the health and environmental
effects, would the use of nuclear weapons by a state in war or other armed conflict be a breach of
its obligations under international law including the WHO Constitution?”. The ICJ considered the
WHO's request, in a case known as the Legality of the Use by a State of Nuclear Weapons in
Armed Conflict (General List No. 93), and also known as the WHO Nuclear Weapons case,
between 1993 and 1996. After considering the case the Court refused to give an advisory opinion
on the WHO question. On 8 July 1996 it RULING: that the question did not fall within the scope
of WHO's activities, as is required by Article 96(2) of the UN Charter. By a letter dated 19
December 1994, the Secretary-General of the United Nations officially communicated to the
Registry a decision taken by the General Assembly, reiterating the concern of WHO regarding the
threat or use of nuclear weapons by a State.

ISSUE: Is the threat or use of nuclear weapons in any circumstance permitted under international
law ?

RULING: The ICJ considered the question of the legality or illegality of the use of nuclear
weapons in the light of the provisions of the United Nations Charter relating to the threat or use of
force. It observed, inter alia, that those provisions applied to any use of force, regardless of the
weapons employed. In addition it stated that the principle of proportionality might not in itself
exclude the use of nuclear weapons in self-defence in all circumstances. However at the same time,
a use of force that was proportionate under the law of self-defence had, in order to be lawful, to
meet the requirements of the law applicable in armed conflict, including, in particular, the
principles and rules of humanitarian law. It pointed out that the notions of a “threat” and “use” of
force within the meaning of Article 2, paragraph 4, of the Charter stood together in the sense that
if the use of force itself in a given case was illegal — for whatever reason — the threat to use such
force would likewise be illegal. The ICJ then turned to the law applicable in situations of armed
conflict. From a consideration of customary and conventional law, it concluded that the use of
nuclear weapons could not be seen as specifically prohibited on the basis of that law, nor did it
find any specific prohibition of the use of nuclear weapons in the treaties that expressly prohibited
the use of certain weapons of mass destruction. The ICJ then dealt with the question whether
recourse to nuclear weapons ought to be considered as illegal in the light of the principles and rules
of international humanitarian law applicable in armed conflict and of the law of neutrality. It laid
emphasis on two cardinal principles : (a) the first being aimed at the distinction between
combatants and non-combatants; States must never make civilians the object of attack and must
consequently never use weapons that are incapable of distinguishing between civilian and military
targets while (b) according to the second of those principles, unnecessary suffering should not be
caused to combatants. It follows that States do not have unlimited freedom of choice in the
weapons they use. The ICJ also referred to the Martens Clause, according to which civilians and
combatants remained under the protection and authority of the principles of international law
derived from established custom, the principles of humanity and the dictates of public conscience.
pointed out that, in view of the unique characteristics of nuclear weapons, the use of such weapons
seemed scarcely reconcilable with respect for the requirements of the law applicable in armed
conflict. In view of the current state of international law and of the elements of fact at its disposal,
the ICJ cannot conclude definitively whether the threat or use of nuclear weapons would be lawful
or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would
be at stake.
Paquete Habana CASE
175 US 677
1900

FACTS:
Two fishing vessels were captured by the US Navy during the Spanish-American War,
reasoning that these were manned by excellent seamen who are valuable to Spain as artillerymen
and should thus be detained as prisoners of war. The Paquete Habana and the Lola were regularly
engaged in fishing on the coast of Cuba, sailing under the Spanish flag.
The Paquete Habana was a sloop with a crew of three Cubans, having a fishing license
from the Spanish government. It fished for 25 days within the Spanish territorial waters. While
heading back to Havana, it was captured by the United States gunboat Castin.
On the other hand, The Lola was a schooner with a crew of six Cubans. While heading
back to Havana, it was captured by the United States steamship, and was directed to proceed to
Bahia Honda, where it would be given permission to dock. On the way to its destination, it was
captured again by another United States steamship.
After the capture of the two fishing vessels, Admiral Sampson telegraphed to the Secretary
of the Navy that he noticed a lot of schooners trying to get into Havana. However, the ships were
brought to Key West. The court approved the condemnation of the vessels and their cargo as prizes
of war, stating that “the court not being satisfied that as a matter of law, without any ordinance,
treaty, or proclamation, fishing vessels of this class are exempt from seizure.”

Upon the entry of the final decree of condemnation and sale, the two vessels were sold
through public auction. The Paquete Habana for $490, the Lola for $800.
The owners of the ships appeal the decision.

Issue: WHETHER OR NOT fishing vessels with their cargoes and crews are excluded from prizes
of war.

RULING:

YES. The doctrine that exempts coastal fishermen with their vessels and crews from
capture as prizes of war has been known by the United States from the time of the War of
Independence and has been recognized explicitly by the French and British governments. It is an
established rule of international law that coastal fishing vessels with their equipment and supplies,
cargoes, and crews, unarmed and pursuing their peaceful calling of catching and bringing in fish
are exempt from capture as prizes of war. The exemption does not apply to cast fishermen or their
vessels if employed for a warlike purpose.
This rule of international law is one which prize courts administering the law of nations are bound
to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of
their own government in relation to the matter.

Temple of Preah Vihear (Cambodia v. Thailand, 1962, ICJ)

FACTS:
Preah temple was an ancient and significant temple due to its cultural and historical value.
It was situated on the border of Thailand and Cambodia. Though Thailand was the historical owner
of that area in 1904 when Cambodia was a colony of France, they came to an agreement with
Thailand where they agreed to divide the border according to the watershed.
Subsequently, A French – Siamiz (now known as Thailand) Commission drew a detailed
map of the border were, though by mistake, but clearly marked the Preah Vihear in the territory of
Cambodia. The Thai Government never objected after officially receiving that map. After several
years when the Thai Prince went to visit that Temple, he saw the French Flag over the temple but
did not raise any objection.
 The main objection came by Thailand when UNESCO declared The Preah Vihear as a
world heritage and thus received a million-dollar project to save it. They demanded it as their land
and put some military personnel. On the other hand, Cambodia rejected that claim.

ISSUE: Whether or not Cambodia had sovereignty over the territory of Preah Vihear (YES)

RULING:

Cambodia had sovereignty over the whole territory of the promontory of Preah Vihear and
that, in consequence, Thailand was under an obligation to withdraw from that territory the Thai
military or police forces.

The commission that marked the map finally was a joint commission form both party and
both of the party adopted the same without any objection, therefore, Cambodia had sovereignty
over that area according to their treaty.

CASE CONCERNING RIGHT OF PASSAGE OVER INDIAN TERRITORY

(PORTUGAL V. INDIA)
FACTS:
The Government of Portugal stated that its territory in the Indian Peninsula included two enclaves
surrounded by the Territory of India, Dadra and Nagar-Aveli.
The Application filed on December 22, 1955 stated that in July 1954 the Government of India
prevented Portugal from exercising that right of passage and that Portugal was thus placed in a
position in which it became impossible for it to exercise its rights of sovereignty over the enclaves.
ISSUE:
1. Whether or not the right of passage claimed by Portugal was too vague and contradictory
to enable the Court to pass judgment upon it.
2. Whether or not the right of passage of military personnel and arms should have the same
right of passage over Indian territory as that of private persons.
RULING:
For the first issue the court ruled that:
It was common ground between the Parties that during the British and post-British periods the
passage of private persons and civil officials had not been subject to any restrictions beyond routine
control. Merchandise other than arms and ammunition had also passed freely subject only, at
certain times, to customs regulations and such regulation and control as were necessitated by
considerations of security or revenue. The Court therefore concluded that, with regard to private
persons, civil officials and goods in general there had existed a constant and uniform practice
allowing free passage between Daman and the enclaves, it was, in view of all the circumstances of
the case, satisfied that that practice had been accepted as law by the Parties and had given rise to
a right and a correlative obligation.
To the second issue the position is different the court stated that:
The requirement of a formal request before passage of armed forces could take place had been
repeated in an agreement of 1913. With regard to armed police, the Treaty of 1878 and the
Agreement of 1913 had regulated passage on the basis of reciprocity, and an agreement of 1920
had provided that armed police below a certain rank should not enter the- territory of the other
party without consent previously obtained; finally, an agreement of 1940 concerning passage of
Portuguese armed police over the road from Daman to Nagar-Aveli had provided that, if the party
did not exceed ten in number, intimation of its passage should be given to the British authorities
within twenty-four hours, but that, in other cases, "the existing practice should followed and
concurrence of the British authorities should be obtained by prior notice as heretofore."
The finding of the Court that the practice established between the Parties had required for the
passage of armed forces, armed police and arms and ammunition the permission of the British or
Indian authorities rendered it unnecessary for the Court to' determine whether or not, in the absence
of the practice that actually prevailed, general international custom or general principles of law
recognized by civilized nations, which had. also been invoked by Portugal, could have been relied
upon by Portugal in support of its claim to a right of passage in respect of these categories. The
Court was dealing with a concrete case having special features: historically the case went back to
a period when, and related to a region in which, the relations between neighbouring States were
not regulated by precisely formulated rules but were governed largely by practice: finding a
practice clearly established between two States, which was accepted by the Parties as governing
the relations between them, the Court must attribute decisive effect to that practice. The Court was,
therefore, of the view that no right of passage in favour of Portugal involving al correlative
obligation on India had been established in respect of armed forces, armed police and arms and
ammunition.

CORFU CHANNEL (UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN

IRELAND V. ALBANIA)
FACTS:

This dispute gave rise to three Judgments by the Court. It arose out of the explosions of mines by
which some British warships suffered damage while passing through the Corfu Channel in 1946,
in a part of the Albanian waters which had been previously swept. The ships were severely
damaged and members of the crew were killed. The United Kingdom seised the Court of the
dispute by an Application filed on 22 May 1947 and accused Albania of having laid or allowed a
third State to lay the mines after mine-clearing operations had been carried out by the Allied naval
authorities. The case had previously been brought before the United Nations and, in consequence
of a recommendation by the Security Council, had been referred to the Court.
ISSUE:

Whether or not Albania is responsible for such explosions.

RULING:

In a first Judgment, rendered on 25 March 1948, the Court dealt with the question of its jurisdiction
and the admissibility of the Application, which Albania had raised. The Court found, inter alia,
that a communication dated 2 July 1947, addressed to it by the Government of Albania, constituted
a voluntary acceptance of its jurisdiction. It recalled on that occasion that the consent of the parties
to the exercise of its jurisdiction was not subject to any particular conditions of form and stated
that, at that juncture, it could not hold to be irregular a proceeding not precluded by any provision
in those texts.

A second Judgment, rendered on 9 April 1949, related to the merits of the dispute. The Court found
that Albania was responsible under international law for the explosions that had taken place in
Albanian waters and for the damage and loss of life which had ensued. It did not accept the view
that Albania had itself laid the mines or the purported connivance of Albania with a mine-laying
operation carried out by the Yugoslav Navy at the request of Albania. On the other hand, it
RULING: that the mines could not have been laid without the knowledge of the Albanian
Government. On that occasion, it indicated in particular that the exclusive control exercised by a
State within its frontiers might make it impossible to furnish direct proof of FACTS incurring its
international responsibility. The State which is the victim must, in that case, be allowed a more
liberal recourse to inferences of fact and circumstantial evidence ; such indirect evidence must be
regarded as of especial weight when based on a series of FACTS, linked together and leading
logically to a single conclusion. Albania, for its part, had submitted a counter-claim against the
United Kingdom. It accused the latter of having violated Albanian sovereignty by sending
warships into Albanian territorial waters and of carrying out minesweeping operations in Albanian
waters after the explosions. The Court did not accept the first of these complaints but found that
the United Kingdom had exercised the right of innocent passage through international straits. On
the other hand, it found that the minesweeping had violated Albanian sovereignty, because it had
been carried out against the will of the Albanian Government. In particular, it did not accept the
notion of “self-help” asserted by the United Kingdom to justify its intervention.

In a third Judgment, rendered on 15 December 1949, the Court assessed the amount of reparation
owed to the United Kingdom and ordered Albania to pay £844,000.
 THE FACTORY AT CHORZOW (GERMANY v. POLAND)

1928 P.C.I.J. (Ser. A) No. 17, September 13, 1928

Permanent Court of International Justice

FACTS: On March 1915, the German Reich (“Germany”) entered into a contract with Bayerische
Stickstoffwerke A.-G. (“Bayerische”) for, among others, the construction of a nitrate factory in
Chorzów, Upper Silesia. During 1919, another company, Oberschlesische Stickstoffwerke A.-G.
(“Oberschlesische”), was formed. Oberschlesische would own the land and improvements of the
factory while Bayerische would continue handling the management and operations.
Oberschlesische was duly entered in the land register as owner of the property constituting the
nitrate factory. In July 1922, the Polish Court of Huta Krolewska nullified the registration of
Oberschlesische as owner of the factory, and restored the right of ownership to the name of the
Polish Treasury stating that since the German Government owned all of the shares of the
Oberschlesische, what happened was merely a transformation of an ordinary State enterprise into
a State enterprise with a share capital, and this falls within the category of “property and
possessions belonging to the Empire” acquired by Poland under Art. 256 of the Treaty of
Versailles. M. Ignacy Moscicki was delegated by the Polish government with full powers to take
charge of the factory. He took possession of the immovable and movable property (licenses,
patents, etc.) therein. Oberschlesische and Bayerische brought separate actions to recover
possession of the factory before the German-Polish Mixed Arbitral Tribunal at Paris, but both later
withdrew. Obersclensische then brought an action for the recovery of the movable property, but
this led to no decision on the merits. Germany initiated direct negotiations with Poland. Germany
saw the impracticability of restoring the factory, and opted to demand reparations. However,
negotiations were unsuccessful because, among others, Poland believed that some of its claims
against Germany should be considered in offsetting the indemnity to be awarded to the latter.
Germany submitted a suit to the Permanent Court of International Justice (PCIJ) demanding
reparation from the Polish Government, claiming that according to PCIJ Judgment No. 7, Poland’s
acts contradicted Art. 6 of the Geneva Convention. On receipt of Germany’s complaint, Poland
denied the PCIJ’s jurisdiction, and submitted that the Court should declare that it had no
jurisdiction. This was overruled.

ISSUE: Whether or not there exists an obligation to make reparation?

RULING: Yes. The PCIJ stated that it is a principle of IL, and even a general conception of law,
that any breach of an engagement involves an obligation to make reparation. In Judgment No. 8,
the Court has already said that reparation is the indispensable complement of a failure to apply a
convention, there is no necessity for this to be stated in the convention itself. This obligation to
make reparation has been recognized as an element of positive International Law. On Poland’s
breach of an international engagement: res judicata applies. The nonconformity of Poland's attitude
in respect of the two Companies with Art. 6 and the following articles of the Geneva Convention
is established by No. 2 of the operative provisions of Judgment No. 7.

Barcelona Traction, Light and Power Company Case

ICJ Reports
1970
FACTS:

The Barcelona Traction, Light and Power Company, Limited, was incorporated in 1911 in
Toronto, Canada, where it has its head office. For the purpose of creating and developing an
electric power production and distribution system in Catalonia, Spain it formed a number of
subsidiary companies, of which some had their registered offices in Canada and the others in Spain.
According to the Belgian Government, Barcelona Traction share capital came to be very largely
RULING: by Belgian nationals, but the Spanish Government contends that the Belgian nationality
of the shareholders is not proven.
In 1936 the servicing of Barcelona Traction bonds was suspended on account of the
Spanish civil war. After that war the Spanish exchange control authorities refused to authorize the
transfer of the foreign currency necessary for the resumption of the servicing of the sterling bonds.
subsequently, when the Belgian Government complained of this, the Spanish Government stated
that the transfers could not be authorized unless it were shown that the foreign currency was to be
used to repay debts arising from the genuine importation of foreign capital into Spain, ant that this
had not been established.
On February 12, 1948 a judgment was given declaring the company bankrupt and ordering
the seizure of the assets of Barcelona Traction and of two of its subsidiary companies. In June 15,
1959, the Belgian Government asked the International Court of Justice to decide that the behavior
of the organs of the Spanish State in declaring the Barcelona Traction Company in bankruptcy and
seizing then liquidated its assets was contrary to international law, and that the Spanish State was
responsible for the resulting injury.

Issue:

WHETHER OR NOT International Law overrides Municipal Law in this case.

RULING:

NO. The Court observed that, when a State admitted into its territory foreign investments
or foreign nationals it was bound to extend to them the protection of the law and assumed
obligations concerning the treatment to be afforded them. But such obligations were not absolute.
In order to bring a claim in respect of the breach of such an obligation, a State must first establish
its right to do so.
In the field of diplomatic protection, international law was in continuous evolution and was
called upon to recognize institutions of municipal law. In municipal law, the concept of the
company was founded on a firm distinction between the rights of the company and those of the
shareholder. Only the company, which was endowed with legal personality, could take action in
respect of matters that were of a corporate character. A wrong done to the company frequently
caused prejudice to its shareholders, but this did not imply that both were entitled to claim
compensation. Whenever a shareholder's interests were harmed by an act done to the company, it
was to the latter that he had to, look to institute appropriate action. An act infringing only the
company's rights did not involve responsibility towards the shareholders, even if their interests
where affected. In order for the situation to be different, the act complained of must be aimed at
the direct rights of the shareholders such (which was not the case here since the Belgian
Government had itself admitted that it had not based its claim on an infringement of the direct
rights of the shareholders).

Texaco Overseas Petroleum Co. v. Libya

FACTS:
On September 1, 1973 and February 11, 1974, Libya issued several decrees nationalizing
all of the rights, interests, and property of the Texaco Overseas Petroleum Company (TOPCO) and
California Asiatic Oil Company (CAOC) in Libya that had been granted to them jointly by the
Libyan government under 14 deeds of concession. TOPCO and CAOC requested arbitration and
appointed an arbitrator. However, Libya refused to submit to arbitration and did not appoint an
arbitrator. The 14 deeds of concession provided by Libya to the two companies permitted the
President of the International Court of Justice (ICJ) to appoint a sole arbitrator to hear and
determine the disputes. The Libyan government opposed this practice and argued that the disputes
were not subject to arbitration because they involved sovereign acts by Libya. The President of the
ICJ rejected these arguments and appointed Professor Rene-Jean Dupuy as the sole arbitrator.
The Libyan government refused to participate in the subsequent arbitration proceedings.
On January 19, 1977, Professor Dupuy issued an award on the merits in favor of TOPCO and
CAOC. The deeds of concession contained a provision stating that the concession would be
governed by principles of Libyan law common to principles of international law, and that in the
absence of such common principles, then they would be governed by and in accordance with the
general principles of law, including those which have been applied by international tribunals. The
arbitrator concluded that the nature of the deeds of concession agreement made it an
internationalized contract. He then considered the effect and consequences of an internationalized
contract on the rights of the parties.

ISSUE: Whether or not reference to general principles of law in the International arbitration
context, can be made to be a sufficient criterion for the internationalization of a contract? (YES)
RULING:
Whenever reference is been made to general principles of law in the international
arbitration context, it is always RULING: to be a sufficient criterion for the internationalization of
a contract. The lack of adequate law in the state considered and the need to protect the private
contracting party against unilateral and abrupt modifications of law in the contracting state is a
justification to the recourse to general principles. Though international law involves subjects of a
diversified nature, legal international capacity is not solely attributable to a state. A private
contracting party, unlike a state, has only a limited capacity and is limited to invoke only those
rights that he derives from his contract.
Applying Libyan law or international law in the arbitration proceedings was a conflict
encountered by in this case. Though the contract itself deferred to Libyan law, the court noted that
Libyan law does not preclude the application of international law, but that the two must be
combined in order to verify that Libyan law complies with international law. Even though the right
of a state to nationalize is recognized by international law, this right in itself is not a sufficient
justification not to regard its contractual obligations

BP VS LIBYA 53 I.L.R. 297

FACTS:
On 18 December 1957 the Petroleum Commission of the Government of Libya, acting in
implementation of the Libyan Petroleum Law of 1955, granted Concession 65 to Mr Hunt, a citizen
of the United States. In 1960 the Claimant company, BP Exploration Company (Libya) Limited,
acquired from Mr Hunt an undivided one half interest in Concession 65. The Concession contained
a grant of an exclusive right for 50 years to search for and extract petroleum in a designated area
of Libya, and to sell the oil thus produced.
On 7 December 1971 the Libyan Government passed a law nationalizing the activities of the
Claimant in respect of Concession 65. This was said by the Libyan Government to be in retaliation
for certain actions by the British Government in the Gulf. The Law provided that the State should
pay compensation to be determined within three months by a committee to be appointed by the
Minister of Petroleum. The Committee did not report within that period.
The Claimant started arbitration proceedings on 11 December 1971, contending that the
nationalization amounted to a unilateral and unacceptable repudiation of the Concession.
ISSUE:
Whether or not the law governing the BP concession is public international law.
RULING:
No.
Paragraph 7 of Clause 28 of the BP Concession, quoted in Part I above, stipulates which law is to
govern the agreement. While the provision generates practical difficulties in its implementation, it
offers guidance in a negative sense by excluding the relevance of any single municipal legal system
as such. To the extent possible, the Tribunal will apply the clause according to its clear and
apparent meaning. Natural as this would be in any event, such an interpretation is the more
compelling as the contractual document is of a standardised type prescribed by the Respondent.
The governing law clause moreover was the final product of successive changes made in the
Libyan petroleum legislation in the decade between 1955 and 1965 by which the relevance of
Libyan law was progressively reduced.

In paragraph 7 of Clause 28, reference is made to the principles of law of Libya common to the
principles of international law, and only if such common principles do not exist with respect to a
particular matter, to the general principles of law. The Claimant argues, in the first of three
alternative submissions, that international law alone is applicable.
Secondly, the Claimant argues that since the Parties have expressly excluded the direct and sole
application of Libyan law, but have made reference to the general principles of law, and since "a"
system must govern, "the only system that is left is public international law".
The Tribunal cannot accept the submission that public international law applies, for paragraph 7
of Clause 28 does not so stipulate. Nor does the BP Concession itself constitute the sole source of
law controlling the relationship between the Parties. The governing system of law is what that
clause expressly provides, viz. in the absence of principles common to the law of Libya and
international law, the general principles of law, including such of those principles as may have
been applied by international tribunals.

SAUDI ARABIA vs ARABIAN AMERICAL OIL COMPANY (ARAMCO)

FACTS:
This was an arbitration relating to the Interpretation of a concession agreement made on May 29,
1933, between the Government of the State of Saudi Arabia and the Standard Oil Company of
California. The agreement was subsequently assigned to the California Arabian Standard Oil
Company, which later changed its name to the Arabian American Oil Company (Aramco). Art. 1
of the Concession Agreement of 1933, as amended, provided that the company had ‘the exclusive
right … to explore, prospect, drill for, extract, treat, manufacture, transport, deal with, carry away
and export petroleum… .’ Aramco entered into agreements with regular purchasers whereby the
purchasers could themselves transport oil from certain Arabian outlets. On January 20, 1954, the
Government of Saudi Arabia concluded an agreement with Mr. A. S. Onassis and his company,
Saudi Arabian Maritime Tankers Ltd. (Satco). Articles IV and XV of which the Company was
given a thirty years “right of priority“ for the transport of Saudi Arab oil. ARAMCO objected to
SATCO tankers receiving priority in transporting oil, and invoked the arbitration provision of Art.
31 of the Concession Agreement.

ISSUE:
Whether a Concession Contract can constitute State legislative enactment

RULING:
Yes. In its capacity as first concessionaire, Aramco enjoys indeed exclusive rights which have the
character of acquired or ' vested ' rights and which cannot be taken away from it by the Government
by means of a contract concluded with a second concessionaire, even if that contract were equal
to its own contract from a legal point of view. The principle of respect for acquired rights is one
of the fundamental principles both of public international law and of the municipal law of most
civilized States.

In the Hanbali School of Islamic law, respect for previously acquired private rights, and especially
for contractual rights, is a principle just as fundamental as it is in the other legal Systems of
civilized States. This follows from the fact that valid contracts bind both Parties and must be
performed, for rights resulting from agreements concluded for due consideration are absolutely
secure; when one party has granted certain rights to the other contracting party, it can no longer
dispose of the same rights, totally or partially, in favour of another party.

Arbitration Tribunal finds that the Agreements concluded by the Government with Aramco an the
one hand, and which Mr. Onassis on the other, have a purely contractual nature, since this is in
accordance with the legal nature of concessions in Saudi Arabian law where the King's intervention
is needed merely to make the contract perfect. Furthermore, the Onassis Agreement does not lay
down norms of a general and impersonal application, but it establishes an individual situation to
the advantage of Mr. Onassis and the companies he represents.

THE HOLY SEE v. HON. ERIBERTO U. ROSARIO, JR.

G.R. No. 101949, December 1, 1994.
Quiason, J.

FACTS: On, April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner (also agent of the sellers)
and the Philippine Realty Corporation (PRC), agreed to sell to Ramon Licup lots in Parañaque
registered in the name of petitioner. The agreement was to sell was made on the condition that
earnest money of Php 100,000.00 be paid by Licup to the sellers, and that the sellers clear the said
lots of squatters who where then occupying the said lots. Licup paid and assigned his rights over
the property to private respondent, Starbright Sales Enterprises, Inc. Thereafter, private respondent
demanded that the sellers clear the property of squatter, Msgr. Cirilos informed them that the
squatters’ refuse to and propose instead either that private respondent undertake the eviction or
that the earnest money be returned. The private respondent counter proposed and said that if they
would undertake the eviction the purchase price must be reduced. Msgr. Cirilos returned the
earnest money and wrote private respondent giving it seven days from receipt of the letter to pay
the original purchase price in cash. Private respondent sent back the money but later found out that
on March 30, 1989, petitioner and the PRC, without notice sold the lots to Topicana. Respondent
then filed a petition praying for the annulment of the Deeds of Sale, reconveyance of the lots,
specific performance of the agreement and payment for damages. Petitioner moved to dismiss the
claim and invoked sovereign immunity from suit. Respondent on opposed this and said that it
“shed off its sovereign immunity by entering into the business contract in question.” And
correspondingly, petitioner moved for reconsideration. On October 1, 1991, trial court deferred
the motion, then petitioner elevated the matter to the Supreme Court. On,December 9, 1991, the
Department of Foreign Affairs filed a Motion for Intervention.

ISSUE: Whether or not the Holy See can invoke sovereign immunity despite it entering
into a commercial contract?

RULING: Yes, the Holy See can still invoke sovereign immunity. Under the Section 2 of Article
II of the 1987 Constitution, the Philippines have adopted the generally accepted principles of
International Law and the Philippines has accorded the Holy See the status of a foreign sovereign.

Barcelona Traction, Light and Power Company Case

ICJ Reports
1970
FACTS:
The Barcelona Traction, Light and Power Company, Limited, was incorporated in 1911 in
Toronto, Canada, where it has its head office. For the purpose of creating and developing an
electric power production and distribution system in Catalonia, Spain it formed a number of
subsidiary companies, of which some had their registered offices in Canada and the others in Spain.
According to the Belgian Government, Barcelona Traction share capital came to be very largely
RULING: by Belgian nationals, but the Spanish Government contends that the Belgian nationality
of the shareholders is not proven.

In 1936 the servicing of Barcelona Traction bonds was suspended on account of the
Spanish civil war. After that war the Spanish exchange control authorities refused to authorize the
transfer of the foreign currency necessary for the resumption of the servicing of the sterling bonds.
subsequently, when the Belgian Government complained of this, the Spanish Government stated
that the transfers could not be authorized unless it were shown that the foreign currency was to be
used to repay debts arising from the genuine importation of foreign capital into Spain, ant that this
had not been established.
On February 12, 1948 a judgment was given declaring the company bankrupt and ordering
the seizure of the assets of Barcelona Traction and of two of its subsidiary companies. In June 15,
1959, the Belgian Government asked the International Court of Justice to decide that the behavior
of the organs of the Spanish State in declaring the Barcelona Traction Company in bankruptcy and
seizing then liquidated its assets was contrary to international law, and that the Spanish State was
responsible for the resulting injury.

Issue: WHETHER OR NOT the State of the shareholders of a company have a right of diplomatic
protection if the State whose responsibility is invokes is not the national state of the company.

RULING:
NO. The Court found that Belgium lacked jus standi to exercise diplomatic protection of
shareholders in a Canadian company with respect to measures taken against that company in Spain.
The Court observed that when a State admitted into its territory foreign investments or foreign
nationals it was bound to extend to them the protection of the law and assumed obligations
concerning the treatment to be afforded them. The court considers that in the field of diplomatic
protection as in all other fields and international law, it is necessary that the law be applied
reasonably. It has been suggested that if in a given case, it is not possible to apply the general rule
that the right of diplomatic protection of a company belongs to its national state, considerations of
equity might call for the possibility of protection of the shareholders in question by their own
national state. The Court has to decide the case in disregard of the relevant institutions of municipal
law; it would without justification, invite serious legal difficulties. It is to rules generally accepted
by municipal systems and not to the municipal law of a particular State, that international law
refers.

MAVROMMATIS CASE, PCIJ, SER. A, NO. 2 1924

FACTS:
The Government of the Greek Republic, by an application instituting proceedings filed with the
Registry of the Court on May 13th, 1924, in conformity with Article 40 of the Statute and Article
35 of the Rules of Court, has submitted to the Permanent Court of International Justice a suit
arising out of the alleged refusal on the part of the Government of Palestine, and consequently also
on the part of His Britannic Majesty's Government, since the year 1921 to recognise to their full
extent the rights acquired by M. Mavrommatis, a Greek subject, under contracts and agreements
concluded by him with the Ottoman authorities in regard to concessions for certain public works
to be constructed in Palestine.
This application concludes with a request that the Court may be pleased to give judgment to the
effect that the Government of Palestine and consequently also the Government of His Britannic
Majesty, have, since 1921, wrongfully refused to recognise to their full extent the rights acquired
by M. Mavrommatis under the contracts and agreements concluded by him with the Ottoman
authorities in regard to the works specified above, and that the Government of His Britannic
Majesty shall make reparation for the consequent loss incurred by the said Greek subject, a loss
which is estimated at £234,339 together with interest at six per cent as from July 20th, 1923, the
date on which this estimate was made.
Before entering on the proceedings in the case of the Mavrommatis concessions, the Permanent
Court of International Justice has been made cognisant of an objection taken by His Britannic
Majesty's Government to the effect that the Court cannot entertain the proceedings.
ISSUE:
Whether or not the nature and subject of the dispute laid before the Court are such that the Court
derives from them jurisdiction to entertain it.
RULING:
Yes
In the case of the Mavrommatis concessions it is true that the dispute was at first between a private
person and a State -i.e. between M. Mavrommatis and Great Britain. Subsequently, the Greek
Government took up the case. The dispute then entered upon a new phase; it entered the domain
of international law, and became a dispute between two States. Henceforward therefore it is a
dispute which may or may not fall under the jurisdiction of the Permanent Court of International
Justice.
Article 26 of the Mandate, in giving jurisdiction to the Permanent Court of International Justice
does not, in fact, merely lay down that there must be a dispute which requires to be settled. It goes
on to say that the dispute must be between the Mandatory and another Member of the League of
Nations. This is undoubtedly the case in the present suit, since the claimant State Greece, like Great
Britain, has from the outset belonged to the League of Nations. It is an elementary principle of
international law that a State is entitled to protect its subjects, when injured by acts contrary to
international law committed by another State, from whom they have been unable to obtain
satisfaction through the ordinary channels. By taking up the case of one of its subjects and by
resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality
asserting its own rights -its right to ensure, in the person of its subjects, respect for the rules of
international law.
The question, therefore, whether the present dispute originates in an injury to a private interest,
which in point of fact is the case in many international disputes, is irrelevant from this standpoint.
Once a State has taken up a case on behalf of one of its subjects before an international tribunal,
in the eyes of the latter the State is sole claimant. The fact that Great Britain and Greece are the
opposing Parties to the dispute arising out of the Mavrommatis concessions is sufficient to make
it a dispute between two States within the meaning of Article 26 of the Palestine Mandate.

CERTAIN EXPENSES OF THE UNITED NATIONS, ICJ REPORTS, 1962

FACTS:
The request which laid the matter before the Court was formulated in a letter dated 21 December
1961 from the Acting Secretary-General of the United Nations to the President of the Court,
received in the Registry on 27 December. In that letter the Acting Secretary-General informed the
President of the Court that the General Assembly, by a resolution adopted on 20 December 1961,
had decided to request the International Court of Justice to give an advisory opinion on the
following question:
"Do the expenditures authorized in General Assembly resolutions 1583 (XV) and 1590 (XV) of
20 December 1960, 1595 (XV) of 3 April 1961, 1619 (XV) of 21 April 1961 and 1633 (XVI) of
30 October 1961 relating to the United Nations operations in the Congo undertaken in pursuance
of the Security Council resolutions of 14 July, 22 July and 9 August 1960, and 21 February and
24 November 1961, and General Assembly resolutions 1474 (ES-IV) of 20 September 1960 and
1599 (XV), 1600 (XV) and 1601 (XV) of 15 April1961, and the expenditures authorized in General
Assembly resolutions 1122 (XI) of 26 November 1956, 1089 (XI) of 21 December 1956, 1090
(XI) of 27 February 1957, 1151 (XII) of 22 November 1957, 1204 (XII) of 13 December 1957,
1337 (XIII) of 13 December 1958, 14.41 (XIV) of 5 December 1959 and 1575 (XV) of 20
December 1960 relating to the operations of the United Nations Emergency Force undertaken in
pursuance of General Assembly resolutions 997 (ES-1) of 2 November 1956, 998 (ES-1) and 999
(ES-1) of 4 November 1956, 1000 (ES-1) of 5 November 1956, 1001 (ES-1) of 7 November 1956,
1121 (XI) of 24 November 1956 and 1263 (XIII) of 14 November 1958, constitute 'expenses of
the Organization' within the meaning of Article 17, paragraph 2, of the Charter of the United
Nations?"
In the Acting Secretary-General's letter was enclosed a certified copy of the aforementioned
resolution of the General Assembly. At the same time the Acting Secretary-General announced
that he would transmit to the Court, in accordance with Article 65 of the Statute, all documents
likely to throw light upon the question.
ISSUE:
Whether certain expenditures authorized by the General Assembly "constitute 'expenses of the
Organization' within the meaning of Article 17, paragraph 2, of the Charter of the United Nations".
RULING:
The general purposes of Article 17 are the vesting of control over the finances of the Organization,
and the levying of apportioned amounts of the expenses of the Organization in order to enable it
to carry out the functions of the Organization as a whole acting through its principal organs and
such subsidiary organs as may be established under the authority of Article 22 or Article 29.
Article 17 is the only article in the Charter which refers to budgetary authority or to the power to
apportion expenses, or otherwise to raise revenue, except for Articles 33 and 35, paragraph 3, of
the Statute of the Court which have no bearing on the point here under discussion. Nevertheless,
it has been argued before the Court that one type of expenses, namely those resulting from
operations for the maintenance of international peace and security, are not "expenses of the
Organization" within the meaning of Article 17, paragraph 2, of the Charter, inasmuch as they fa11
to be dealt with exclusively by the Security Council, and more especially through agreements
negotiated in accordance with Article 43 of the Charter. The argument rests in part upon the view
that when the maintenance of international peace and security is involved, it is only the Security
Council which is authorized to decide on any action relative thereto. It is argued further that since
the General Assembly's power is limited to discussing, considering, studying and recommending,
it cannot impose an obligation to pay the expenses which result from the implementation of its
recommendations.
By Article 17, paragraph 1, the General Assembly is given the power not only to "consider" the
budget of the Organization, but also to "approve" it. The decision to "approve" the budget has a
close connection with paragraph 2 of Article 17, since thereunder the General Assembly is also
given the power to apportion the expenses among the Members and the exercise of the power of
apportionment creates the obligation, specifically stated in Article 17, paragraph 2, of each
Member to bear that part of the expenses which is apportioned to it by the General Assembly.
When those expenses include expenditures for the maintenance of peace and security, which are
not otherwise provided for, it is the General Assembly which has the authority to apportion the
latter amounts among the Members. The provisions of the Charter which distribute functions and
powers to the Security Council and to the General Assembly give no support to the view that such
distribution excludes from the powers of the General Assembly the power to provide for the
financing of measures designed to maintain peace and security .
The argument supporting a limitation on the budgetary authority of the General Assembly with
respect to the maintenance of international peace and security relies especially on the reference to
"action" in the last sentence of Article II, paragraph 2.
The Court considers that the kind of action referred to in Article II, paragraph 2, is coercive or
enforcement action. This paragraph, which applies not merely to general questions relating to
peace and security, but also to specific cases brought before the General Assembly by a State under
Article 35, in its first sentence empowers the General Assembly, by means of recommendations to
States or to the Security Council, or to both, to organize peacekeeping operations, at the request,
or with the consent, of the States concerned. This power of the General Assembly is a special
power which in no way derogates from its general powers under Article 10 or Article 14, except
as limited by the last sentence of Article II, paragraph 2. This last sentence says that when "action"
is necessary the General Assembly shall refer the question to the Security Council. The word
"action" must mean such action as is solely within the province of the Security Council. It cannot
refer to recommendations which the Security Council might make, as for instance under Article
38, because the General Assembly under Article II has a comparable power. The "action" which
is solely within the province of the Security Council is that which is indicated by the title of Chapter
VI1 of the Charter, namely "Action with respect to threats to the peace, breaches of the peace, and
acts of aggression". If the word "action" in Article II, paragraph 2, were interpreted to mean that
the General Assembly could make recommendations only of a general character affecting peace
and security in the abstract, and not in relation to specific cases, the paragraph would not have
provided that the General Assembly may make recommendations on questions brought before it
by States or by the Security Council. Accordingly, the last sentence of Article II, paragraph 2, has
no application where the necessary action is not enforcement action.

NICARAGUA v. UNITED STATES

1984 I.C.J. 39, June 27, 1986
International Court of Justice

FACTS:
The United States challenged the jurisdiction of the ICJ when it was RULING: responsible for
illegal military and paramilitary activities in and against Nicaragua in the suit the plaintiff brought
against the defendant in 1984. Though a declaration accepting the mandatory jurisdiction of the
Court was deposited by the United States in a 1946, it tried to justify the declaration in a 1984
notification by referring to the 1946 declaration and stating in part that the declaration “shall not
apply to disputes with any Central American State.” Apart from maintaining the ground that the
ICJ lacked jurisdiction, the States also argued that Nicaragua failed to deposit a similar declaration
to the Court. On the other hand, Nicaragua based its argument on its reliance on the 1946
declaration made by the United States due to the fact that it was a “state accepting the same
obligation” as the United States when it filed charges in the ICJ against the United States. Also,
the plaintiff intent to submit to the compulsory jurisdiction of the ICJ was pointed out by the valid
declaration it made in 1929 with the I.C.J’s predecessor, which was the Permanent Court of
International Justice, even though Nicaragua had failed to deposit it with that court. The
admissibility of Nicaragua’s application to the ICJ was also challenged by the United States.

ISSUE:
(1) Is the jurisdiction to entertain a dispute between two states, if they both accept the Court’s
jurisdiction, within the jurisdiction of the International Court of Justice?
(2) Where no grounds exist to exclude the application of a state, is the application of such a state
to the International Court of Justice admissible?
RULING:

(1) Yes. The jurisdiction of the Court to entertain a dispute between two states if each of the States
accepted the Court’s jurisdiction is within the jurisdiction of the International Court of Justice.
Even though Nicaragua declaration of 1929 was not deposited with the Permanent Court, because
of the potential effect it had that it would last for many years, it was valid. Thus, it maintained its
effect when Nicaragua became a party to the Statute of the ICJ because the declaration was made
unconditionally and was valid for an unlimited period. The intention of the current drafters of the
current Statute was to maintain the greatest possible continuity between it and the Permanent
Court. Thus, when Nicaragua accepted the Statute, this would have been deemed that the plaintiff
had given its consent to the transfer of its declaration to the ICJ.

(2) Yes. When no grounds exist to exclude the application of a state, the application of such a state
to the International Court of Justice is admissible. The five grounds upon which the United States
challenged the admissibility of Nicaragua’s application were that the plaintiff failed because there
is no “indispensable parties” rule when it could not bring forth necessary parties, Nicaragua’s
request of the Court to consider the possibility of a threat to peace which is the exclusive province
of the Security Council, failed due to the fact that ICJ can exercise jurisdiction which is concurrent
with that of the Security Council, that the ICJ is unable to deal with situations involving ongoing
armed conflict and that there is nothing compelling the ICJ to decline to consider one aspect of a
dispute just because the dispute has other aspects due to the fact that the case is incompatible with
the Contadora process to which Nicaragua is a party.

Armed Activities on the Territory of the Congo

DRC vs Uganda
2005 ICJ 116

FACTS:

On 23 June 1999, the Democratic Republic of the Congo (DRC) filed in the Registry of
the Court Applications instituting proceedings against Burundi, Uganda and Rwanda “for acts of
armed aggression committed . . . in flagrant breach of the United Nations Charter and of the Charter
of the Organization of African Unity”. In addition to the cessation of the alleged acts, Congo sought
reparation for acts of intentional destruction and looting and the restitution of national property
and resources appropriated for the benefit of the respective respondent States.
In its Applications instituting proceedings against Burundi and Rwanda, the DRC referred,
as bases for the Court’s jurisdiction, to Article 36, paragraph 1, of the Statute, the New York
Convention of 10 December 1984 against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, the Montreal Convention of 23 September 1971 for the Suppression of
Unlawful Acts against the Safety of Civil Aviation and, lastly, Article 38, paragraph 5, of the Rules
of Court. However, the Government of the DRC informed the Court on 15 January 2001 that it
intended to discontinue the proceedings instituted against Burundi and Rwanda, stating that it
reserved the right to invoke subsequently new grounds of jurisdiction of the Court. The two cases
were therefore removed from the List on 30 January 2001.
In the case concerning Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), the DRC founded the jurisdiction of the Court on the
declarations of acceptance of the compulsory jurisdiction of the Court made by the two States. On
19 June 2000, the DRC filed a request for the indication of provisional measures to put a stop to
all military activity and violations of human rights and of the sovereignty of the DRC by Uganda.
On 1 July 2000, the Court ordered each of the two Parties to prevent and refrain from any armed
action which might prejudice the rights of the other Party or aggravate the dispute, to take all
measures necessary to comply with all of their obligations under international law and also to
ensure full respect for fundamental human rights and for the applicable provisions of humanitarian
law.

Issue:

WHETHER OR NOT Uganda is an occupying power in the parts of the Congolese territory where
its troops were present.

RULING:

The Court observes that, under customary international law, as reflected in Article 42 of
The Hague Regulations of 1907, territory is considered to be occupied when it is actually placed
under the authority of the hostile army, and the occupation extends only to the territory where such
authority has been established and can be exercised.
 The Court states that it is not disputed between the Parties that General Kazini, commander
of the Ugandan forces in the DRC, created the new “province of Kibali-Ituri” in June 1999. It
considers that, regardless of whether or not General Kazini acted in violation of orders and was
punished as a result, his conduct is clear evidence of the fact that Uganda established and exercised
authority in Ituri as an occupying Power. The Court however observes that the DRC does not
provide any specific evidence to show that authority was exercised by the Ugandan armed forces
in any areas other than in Ituri district.
Having concluded that Uganda was the occupying Power in Ituri at the relevant time, the
Court states that, as such, it was under an obligation, according to Article 43 of The Hague
Regulations, to take all measures in its power to restore, and ensure, as far as possible, public order
and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in
the DRC. This obligation comprised the duty to secure respect for the applicable rules of
international human rights law and international humanitarian law, to protect the inhabitants of the
occupied territory against acts of violence, and not to tolerate such violence by any third party.

The Court finds that Uganda’s responsibility is engaged both for any acts of its military that
violated its international obligations and for any lack of vigilance in preventing violations of
human rights and international humanitarian law by other actors present in the occupied territory,
including rebel groups acting on their own account. It notes that Uganda at all times has
responsibility for all actions and omissions of its own military forces in the territory of the DRC
in breach of its obligations under the rules of international human rights law and international
humanitarian law which are relevant and applicable in the specific situation.

SAUDI ARABIA et al. v. NELSON et ux.

FACTS:

The respondents Nelson, a married couple, filed this action for damages against petitioners,
the Kingdom of Saudi Arabia, a Saudi hospital, and the hospital's purchasing agent in the United
States. They alleged, among other things, that respondent husband suffered personal injuries as a
result of the Saudi Government's unlawful detention and torture of him and petitioners' negligent
failure to warn him of the possibility of severe retaliatory action if he attempted to report on the
job hazards. The Nelsons asserted jurisdiction under the Foreign Sovereign Immunities Act of
1976, which confers jurisdiction where an action is "based upon a commercial activity carried on
in the United States by the foreign state."

The District Court dismissed for lack of subject matter jurisdiction. The Court of Appeals
reversed, concluding that respondent husband's recruitment and hiring were "commercial
activities" upon which the Nelsons' action was "based" for purposes of §1605(a)(2).

ISSUE: Whether or not recruitment and hiring were "commercial activities" upon which the
Nelsons' action was based (NO)
RULING:

This action is not "based upon" a commercial activity. Although the Act does not define
"based upon," the phrase is most naturally read to mean those elements of a claim that, if proven,
would entitle a plaintiff to relief under his theory of the case, and the statutory context confirms
that the phrase requires something more than a mere connection with, or relation to, commercial
activity. Even taking the Nelsons' allegations about respondent husband's recruitment and
employment as true, those FACTS alone entitle the Nelsons to nothing under their theory of the
case. While thesearguably commercial activities may have led to the commission of the torts that
allegedly injured the Nelsons, it is only those torts upon which their action is "based" for purposes
of the Act.

Petitioners' tortious conduct fails to qualify as "commercial activity" within the meaning
of the Act. This Court has ruled that the Act largely codifies the so called "restrictive" theory of
foreign sovereign immunity, and that a state engages in commercial activity under that theory
where it exercises only those powers that can also be exercised by private citizens, rather than
those powers peculiar to sovereigns. The intentional conduct alleged here (the Saudi Government's
wrongful arrest, imprisonment, and torture of Nelson) boils down to abuse of the power of the
police. However monstrous such abuse undoubtedly may be, a foreign state's exercise of that
power has long been understood for purposes of the restrictive theory as peculiarly sovereign in
nature. The Nelsons' argument that respondent husband's mistreatment constituted retaliation for
his reporting of safety violations, and was therefore commercial in character, does not alter the
fact that the powers allegedly abused were those of police and penal officers.

TINOCO CLAIMS ARBITRATION (GREAT BRITAIN V. COSTA RICA) 1 U.N. REP

INT’L ARB AWARDS 369 (1923)
FACTS:
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 RULING: under it. The restored government is a signatory to this treaty of
arbitration.
After Tenneco’s retirement the old constitution was restored and a Law of Nullities was passed
annulling the contracts concluded during the Tenneco regime.
Great Britain made claims on the basis of the injuries done to its nationals caused by the
annulments.
ISSUES:
1. Whether or not the Tinoco government was recognized internationally. (Yes)
 2. Whether or not Great Britain is estopped from pursuing its claims because it never
recognized the Tinoco Government (No)
RULING:
The non-recognition by other nations of a government claiming to be a national personality, is
usually appropriate evidence that it has not attained the independence and control entitling it by
international law to be classed as such. But when recognition of a government is by such nations
determined by inquiry, not into its de facto sovereignty and complete governmental control, but
into its illegitimacy or irregularity of origin, their non-recognition loses something of evidential
weight it cannot outweigh the evidence disclosed by this record before me as to the de facto
character of Tinoco’s government.
To hold that a government does not become a de facto government unless it conforms to a previous
constitution would be to hold that within the rules of international law a revolution contrary to the
fundamental law of the existing government cannot establish a new government.
Great Britain takes the position that the Tinoco government which it did not recognize, was
nevertheless a de facto government that could create rights in British subjects which it now seeks
to protect. Non- recognition may have aided the succeeding government to come into power; but
subsequent presentation of claims based on the de facto existence of the previous government ...
does not work an injury to the succeeding government in the nature of a fraud or breach of good
faith.