PUBLIC INTERNATIONAL LAW Case Digests

GROUP 8
DE GUZMAN, Jeam
DELA CRUZ, Faye
DELA TORRE, John Rey
GERONA, Bill Warren
RAMOS, Felix Angelo

KURODA vs. JALANDONI

DOCTRINE:
Article 2, Section 3 of the Philippine Constitution: “The Philippines renounces war as an instrument of
national policy and adopts the generally accepted principles of international law as part of the law of the
nation.”
FACTS:
Shigenori Kuroda, a Lieutenant General of the Japanese Imperial Army and Commanding General of the
Japanese Imperial Forces in the Philippines from 1943-1944, was prosecuted for war crimes specifically
with having unlawfully disregarded and failed "to discharge his duties as such command, permitting
them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of
the Imperial Japanese Forces in violation of the laws and customs of war" before the Military
Commission which was set up by Executive Order No.68.
Kuroda sought to establish the illegality of the said E.O. primarily 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 the Military Commission established by virtue of E.O. No.68 was illegal and
unconstitutional.
HELD:
NO. The Military Commission established by virtue of E.O. No.68 was legal and constitutional. Based on
Article 2, Section 3 of the Philippine Constitution in effect back then, “the Philippines renounces war as
an instrument of national policy and adopts the generally accepted principles of international law as
part of the law of the nation.”
According to the Hague Convention, the Geneva Convention, and precedents of international
jurisprudence, which are all generally accepted principles of international law, “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 held accountable therefor.”
It cannot be denied that the rules and regulations of the Hague and Geneva conventions form, part of
and are wholly based on the generally accepted principals of international law. In fact. these rules and
principles were accepted by the United States and Japan who were signatories to the two Convention.
Such rules 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 in treaties to which our government may have been or shall be a signatory.
 CO KIM CHAM vs. VALDEZ TAN KEH
DOCTRINE:
Postliminy is a well-known principle in international law wherein the fact that a territory which has been
occupied by an enemy comes again into the power of its legitimate government of sovereignty, "does
not, except in a very few cases, wipe out the effects of acts done by an invader, which for one reason or
another it is within his competence to do.
FACTS:
Co Kim Cham filed a petition for mandamus with a prayer that respondent-judge Valdez Tan Keh of the
CFI of Manila be ordered to continue the proceedings in the Civil Case which was 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 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 were invalidated and nullified by the Proclamation of Gen. Douglas McArthur. Respondent
judge also contended that the government established in the Philippines during the Japanese
occupation were no de facto governments.
Following the occupation of the City of Manila by the Imperial Japanese Forces on January 1942, it was
proclaimed that “all the laws now in force in the Commonwealth, as well as executive and judicial
institutions, shall continue to be effective for the time being as in the past," and "all public officials shall
remain in their present posts and carry on faithfully their duties as before."
A civil government or central administration organization under the name of "Philippine Executive
Commission was organized by Order No. 1 issued on January 23, 1942, by the Commander in Chief of
the Japanese Forces in the Philippines, and Jorge B. Vargas, who was appointed Chairman thereof, was
instructed to proceed to the immediate coordination of the existing central administrative organs and
judicial courts, based upon what had existed therefore, with approval of the said Commander in Chief,
who was to exercise jurisdiction over judicial courts.
On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no substantial
change was effected thereby in the organization and jurisdiction of the different courts that functioned
during the Philippine Executive Commission, and in the laws they administered and enforced. In General
Douglas MacArthur proclamation to the People of the Philippines, among others, it declared, among
others: “That all laws, regulations and processes of any other government in the Philippines than that of
the said Commonwealth are null and void and without legal effect in areas of the Philippines free of
enemy occupation and control.”
ISSUE:
Whether or not the Philippine Executive Commission and Republic of the Philippines during the
Japanese military occupation or regime were de facto governments.
HELD:
YES. The Philippine Executive Commission, which was organized by Order No. 1 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. 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.
The second kind of de facto government 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. 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.
Although in theory, the authority of the local civil and judicial administration is suspended as a matter of
course as soon as military occupation takes place, in practice the invader does not usually take the
administration of justice into his own hands, but continues the ordinary courts or tribunals to administer
the laws of the country which he is enjoined, unless absolutely prevented, to respect.
The governments by the Philippine Executive Commission and the Republic of the Philippines during the
Japanese military occupation being de facto governments, it necessarily follows that the judicial acts and
proceedings of the courts of justice of those governments, which are not of a political complexion, were
good and valid, and, by virtue of the well-known principle of postliminy (postliminium) in international
law, remained good and valid after the liberation or reoccupation of the Philippines by the American and
Filipino forces under the leadership of General Douglas MacArthur.
According to that well-known principle in international law, the fact that a territory which has been
occupied by an enemy comes again into the power of its legitimate government of sovereignty, "does
not, except in a very few cases, wipe out the effects of acts done by an invader, which for one reason or
another it is within his competence to do. Thus judicial acts done under his control, when they are not of
a political complexion, administrative acts so done, to the extent that they take effect during the
continuance of his control, and the various acts done during the same time by private persons under the
sanction of municipal law, remain good.”
Though the powers of the military occupant are absolute and supreme, and immediately operate upon
the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect
private rights of person and property and provide for the punishment of crime, are considered as
continuing in force, so far as they are compatible with the new order of things, until they are suspended
or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are
allowed to remain in force and to be administered by the ordinary tribunals, substantially as they were
before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present
occasion. The judges and the other officials connected with the administration of justice may, if they
accept the authority of the United States, continue to administer the ordinary law of the land as
between man and man under the supervision of the American Commander in Chief.
 MEJOFF vs DIRECTOR OF PRISONS
DOCTRINE:
Aliens illegally staying in the Philippines have no right of asylum therein even if they are "stateless.”
However, foreign nationals, not enemy against whom no charge has been made other than that their
permission to stay has expired, may not indefinitely be kept in detention.
FACTS:
Mejoff, an alien of Russian descent who claims to be stateless, was brought in the Philippines from
Shanghai as a secret operative by the Japanese Forces during the latter's regime in the country. Upon
liberation, he was arrested by the US Army Counter Intelligence Corps. He was handed to the
Commonwealth Governement for disposition but was later ordered to be released. Thereafter, he was
referred to the Board of Commissioners of Immigration and after the latter's investigation, Mejoff was
declared to have entered the country illegally and was ordered that he be deported on the first available
transportation to Russia. He was then transferred to Cebu Provincial Jail to await for the arrival of some
Russian vessels.
Thereafter, two boats of Russian nationality called at the Cebu port but their masters refused to take
Mejoff alleging lack of authority to do so. The Commissioner of Immigration believes that it is for the
best interest of the country to keep him under detention while arrangements for his departure are being
made. However, over 2 years have elapsed since the decision without Mejoff being deported to Russia.
This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a decision of
the SC.
ISSUE:
Whether or not an alien who entered the country in violation of immigration laws may be detained for
as long as the Government is unable to deport him.
HELD:
NO. In Sowapadji vs. Wixon, it was held that aliens illegally staying in the Philippines have no right of
asylum therein even if they are "stateless.” However, foreign nationals, not enemy against whom no
charge has been made other than that their permission to stay has expired, may not indefinitely be kept
in detention. The protection against deprivation of liberty without due process of law and except for
crimes committed against the laws of the land is not limited to Philippine citizens but extends to all
residents, except enemy aliens, regardless of nationality. Whether an alien who entered the country in
violation of its immigration laws may be detained for as long as the Government is unable to deport him,
is a point we need not decide. The petitioner's entry into the Philippines was not unlawful; he was
brought by the armed and belligerent forces of a de facto government whose decrees were law during
the occupation.
Art II, Sec.3 of the Constitution provides that the Philippines "adopts the generally accepted principles of
international law as part of the law of Nation." Moreover, the "Universal Declaration of Human Rights"
which was approved by the General Assembly of the United Nations of which the Philippines is a
member states, the right to life and liberty and all other fundamental rights as applied to all human
beings were proclaimed. It states the following: that "All human beings are born free and equal in
degree and rights" (Art. 1); that "Everyone is entitled to all the rights and freedom set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or
other opinion, nationality or social origin, property, birth, or other status" (Art. 2): that "Every one has
the right to an effective remedy by the competent national tribunals for acts violating the fundamental
rights granted him by the Constitution or by law" (Art. 8); that "No one shall be subjected to arbitrary
arrest, detention or exile" (Art. 9); etc.
Although not binding upon this Court as a precedent, the Court deemed it proper to apply the case of
Staniszewski vs. Watkins because affords a happy solution to the quandry in which the parties here finds
themselves, solution which we think is sensible, sound and compatible with law and the Constitution. To
wit:
“a stateless person who is a resident in the US was ordered to be excluded from the US on the
ground of not having a passport or immigration visa. There is no other country that would take
him without proper documents. The court ruled that the petitioner in the said case should be
released from custody on proper terms.”
Such solution is applicable with Mejoff's case as such is sensible, sound and compatible with law and the
Constitution. The Court ordered that Mejoff shall be released and placed under surveillance of the
immigration authorities in such form and manner adequate to insure that he keep peace and be
available when the government is ready to deport him.
 BAER vs TIZON
DOCTRINE:
“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 or country.”
FACTS:
Donald Baer was the Commander of the US Naval Base in Subic Bay, Zambales, who sought to nullify the
orders of respondent Judge Tizon denying his motion to dismiss a complaint filed against him by the
private respondent, Edgardo Gener, on the ground of sovereign immunity of a foreign power, his
contention being that it was in effect a suit against the United States, which had not given its consent.
Edgardo Gener filed a complaint for injunction with CFI of Bataan against Donald Baer. Gener alleged
that he was engaged in the business of logging and that the American Naval Base authorities stopped his
logging operations. Gener based his complaint on the legal proposition “that a private citizen claiming
title and and right of possession of a certain property may, recover the same, sue as individual officers
and agents of the government alleged to be illegally withholding such property even if there is an
assertion on their part that they are acting for the government.” Donald Baer filed a motion to dismiss.
Baer pointed out that he is the chief or head of an 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 and that it was within entirely the scope of his authority and official duty the maintenance of
the security of the naval base and of the installations therein, therefore he cannot be sued as an
individual acting in the interest of his own country.
ISSUE:
Whether or not the doctrine of state immunity from suit applies.
HELD:
YES. The invocation of the doctrine of immunity from suit of a foreign state without its consent is
applicable in this case. In Coleman v. Tennessee, it was held that “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 or country.”
Accuracy demands the clarification that after the conclusion of the Philippine-American Military Bases
Agreement, the treaty provisions should control on such matter, the assumption being that there was a
manifestation of the submission to jurisdiction on the part if the foreign power whenever appropriate.
The doctrine of state immunity is not limited to cases which would result in a pecuniary charge against
the sovereign or would require the doing of an affirmative act by it. Prevention of a sovereign from
doing an affirmative act pertaining directly and immediately to the most important public function of
any government – the defense of the state – is equally as untenable as requiring it to do an affirmative
act.
 TANADA vs ANGARA
DOCTRINE:
“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.”
FACTS:
Petitioners prayed for the nullification of the concurrence of the Philippine Senate in the ratification by
the President of the Philippines of the Agreement Establishing the World Trade Organization (WTO
Agreement) and for the prohibition of its implementation and enforcement through the release and
utilization of public funds, the assignment of public officials and employees, as well as the use of
government properties and resources by respondent-heads of various executive offices concerned
therewith.
They contended that WTO agreement violates the mandate of the 1987 Constitution to “develop a self-
reliant and independent national economy effectively controlled by Filipinos x x x (to) give preference to
qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally
produced goods” as (1) the WTO requires the Philippines “to place nationals and products of member-
countries on the same footing as Filipinos and local products” and (2) that the WTO “intrudes, limits
and/or impairs” the constitutional powers of both Congress and the Supreme Court.
Brief Historical Background of the Philippines’ involvement with the WTO:
To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the
establishment of three multilateral institutions — inspired by that grand political body, the United
Nations — were discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB)
which was to address the rehabilitation and reconstruction of war-ravaged and later developing
countries; the second, the International Monetary Fund (IMF) which was to deal with currency
problems; and the third, the International Trade Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral protectionist policies that invite challenge, even
retaliation, from other states. However, for a variety of reasons, including its non-ratification by the
United States, the ITO, unlike the IMF and WB, never took off. What remained was only GATT — the
General Agreement on Tariffs and Trade. GATT was a collection of treaties governing access to the
economies of treaty adherents with no institutionalized body administering the agreements or
dependable system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the
Tokyo Round and the Uruguay Round, the world finally gave birth to that administering body — the
World Trade Organization — with the signing of the "Final Act" in Marrakesh, Morocco and the
ratification of the WTO Agreement by its members.
Like many other developing countries, the Philippines joined WTO as a founding member with the goal,
as articulated by President Fidel V. Ramos in two letters to the Senate (infra), 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." The President also saw in the WTO the
opening of "new opportunities for the services sector . . . , (the reduction of) costs and uncertainty
associated with exporting . . . , and (the attraction of) more investments into the country." Although the
Chief Executive did not expressly mention it in his letter, the Philippines — and this is of special interest
to the legal profession — will benefit from the WTO system of dispute settlement by judicial
adjudication through the independent WTO settlement bodies called (1) Dispute Settlement Panels and
(2) Appellate Tribunal. Heretofore, trade disputes were settled mainly through negotiations where
solutions were arrived at frequently on the basis of relative bargaining strengths, and where naturally,
weak and underdeveloped countries were at a disadvantage.
ISSUE:
Whether or not the WTO Agreement is unconstitutional for it unduly limits, restricts, and impairs
Philippine sovereignty.
HELD:
NO. The WTO Agreement is constitutional. While sovereignty has traditionally been deemed absolute
and all-encompassing on the domestic level, it is however subject to restrictions and limitations
voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations.
Unquestionably, the Constitution did not envision a hermit-type isolation of the country from the rest of
the world. 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. One of the oldest and most fundamental rules in
international law is pacta sunt servanda — international agreements must be performed in good faith.
“A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the
parties x x x. 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. Thus, treaties have been used to record agreements
between States concerning such widely diverse matters as, for example, the lease of naval bases, the
sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation
of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules
governing conduct in peace and the establishment of international organizations. The sovereignty of a
state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the
picture: (1) limitations imposed by the very nature of membership in the family of nations and (2)
limitations imposed by treaty stipulations. As aptly put by John F. Kennedy, “Today, no nation can build
its destiny alone. The age of self-sufficient nationalism is over. The age of interdependence is here.”
The WTO reliance on “most favored nation,” “national treatment,” and “trade without discrimination”
cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply
to all WTO members. Aside from envisioning a trade policy based on “equality and reciprocity,” the
fundamental law encourages industries that are “competitive in both domestic and foreign markets,”
thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor
of the gradual development of robust industries that can compete with the best in the foreign markets.
Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to compete
internationally. And given a free trade environment, Filipino entrepreneurs and managers in Hongkong
have demonstrated the Filipino capacity to grow and to prosper against the best offered under a policy
of laissez faire.
 ARTHUR LIM et. al. vs. EXECUTIVE SECRETARY
DOCTRINE:
“The fact that international law has been made part of the law of the land does not by any means imply
the primacy of international law over national law in the municipal sphere. Under the doctrine of
incorporation as applied in most countries, rules of international law are given a standing equal, not
superior, to national legislation.”
FACTS:
This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, praying
that respondents (Arroyo administration) be restrained from proceeding with the so-called "Balikatan
02-1" and that after due notice and hearing, that judgment be rendered issuing a permanent writ of
injunction and/or prohibition against the deployment of U.S. troops in Basilan and Mindanao for being
illegal and in violation of the Constitution.
These so-called "Balikatan" exercises are the largest combined training operations involving Filipino and
American troops. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual
Defense Treaty,1 a bilateral defense agreement entered into by the Philippines and the United States in
1951.
Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of any formal
agreement relative to the treatment of United States personnel visiting the Philippines. In the
meantime, the respective governments of the two countries agreed to hold joint exercises on a reduced
scale. The lack of consensus was eventually cured when the two nations concluded the Visiting Forces
Agreement (VFA) in 1999.
ISSUE:
Whether or not the “Balikatan 02-1” is covered by the VFA.
HELD:
YES. The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the
exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of
undertakings subject only to the approval of the Philippine government. The sole encumbrance placed
on its definition is couched in the negative, in that United States personnel must "abstain from any
activity inconsistent with the spirit of this agreement, and in particular, from any political activity." All
other activities, in other words, are fair game.
The Vienna Convention on the Law of Treaties Article 31 SECTION 3 and Article 32 contains provisos
governing interpretations of international agreements. It is clear from the foregoing that the cardinal
rule of interpretation must involve an examination of the text, which is presumed to verbalize the
parties' intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of
terms, which it refers to as the context of the treaty, as well as other elements may be taken into
account alongside the aforesaid context. According to Professor Briggs, writer on the Convention, the
distinction between the general rule of interpretation and the supplementary means of interpretation is
intended rather to ensure that the supplementary means do not constitute an alternative, autonomous
method of interpretation divorced from the general rule.
The meaning of the word “activities" was deliberately made that way to give both parties a certain
leeway in negotiation. Thus, the VFA gives legitimacy to the current Balikatan exercises. Both the history
and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related
activities -as opposed to combat itself -such as the one subject of the instant petition, are indeed
authorized.
Philip Morris, Inc. v. Court of Appeals:
“Withal, the fact that international law has been made part of the law of the land does not by
any means imply the primacy of international law over national law in the municipal sphere.
 Under the doctrine of incorporation as applied in most countries, rules of international law are
given a standing equal, not superior, to national legislation.”
From the perspective of public international law, a treaty is favored over municipal law pursuant to the
principle of pacta sunt servanda. Hence, "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."
 YAMASHITA vs STYER
DOCTRINE:
“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.”
FACTS:
Tomoyuki Yamashita, the commanding general of the Japanese Imperial Army in the Philippines, filed a
petition for habeas corpus and prohibition against Lt. Gen. Wilhelm Styer.
Lt. Gen .Styer, commanding general of the United States Army Forces, charged Yamashita before an
American Military Commission with the most monstrous crimes ever committed against the American
and Filipino people.
It is alleged therein that Yamashita, 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 Lt. Gen. 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 or not the military commission has jurisdiction over Yamashita.
HELD:
YES. The military commission was lawfully created in conformity with an act of Congress sanctioning the
creation of such tribunals. The laws of war impose upon a commander the duty to take any appropriate
measures within his powers to control the troops under his command to prevent acts which constitute
violation of the laws of war. Hence, petitioner could be legitimately charged with personal responsibility
arising from his failure to take such measure. In this regard the SC invoked Art. 1 of the Hague
Convention No. IV of 1907, as well as Art. 19 of Hague Convention No. X, Art. 26 of 1929 Geneva
Convention among others.
The issuance of a writ of habeas corpus is without merit since the petitioner merely sought for
restoration to his former status as prisoner of war and not a discharge from confinement. This is a
matter of military measure and not within the jurisdiction of the courts.
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.
By the Articles of War, and especially Article 15, the Congress of the United States has explicitly
provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try
offenders or offenses against the laws of war in appropriate cases.
 G.R. No. L-1812 August 27, 1948
EREMES KOOKOORITCHKIN, petitioner, vs. THE SOLICITOR GENERAL, oppositor.
PERFECTO, J. :

Facts:
● Kookooritchkin was born in Russia but he disclaimed allegiance to the Communist Government of
Russia, identifying himself as stateless. He married a Filipino woman and resided in the Philippines.
● In August, 1941, Kookooritchkin filed for a petition for naturalization with the lower court under the
provisions of Commonwealth Act 473, as amended by Act 535. He also submitted supporting affidavits
of two citizens, a copy of a declaration of intention sworn in July, 1940, and proper notice of the hearing.
● The hearing was scheduled to be held on December 18, 1941. However the hearing remained pending
as the town was destroyed by the Japanese invasion on December 14, 1941.
● The case was declared reconstituted on May 10, 1947, and the evidence was presented on August 28
and September 30, 1947.
● The lower court did not grant the petition for naturalization for the reason that the declaration of
intention to become a Filipino citizen filed by Kookooritchkin was invalid and insufficient as a basis for
the petition of naturalization. It was also found that the lack of documentary or testimonial evidence did
not establish the fact that Kookooritchkin had lawfully been admitted into the Philippines for permanent
residence.

Issue:
Whether or not the lower court erred in finding Kookooritchkin 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:
The Court ruled that Kookooritchkin was indeed stateless. The testimony of Kookooritchkin was
uncontradicted and was supported by historical facts such as the fall of the Empire of Russia to the
Communist Bolsheviks in 1917. It was held that Kookooritchkin owed no allegiance to the Russian
Communist Government and, instead, was at war with it, so he fled from Russia to permanently reside
in the Philippines. The Court stated that it would be beyond comprehension to support that
Kookooritchkin could feel any bond of attachment to the Soviet dictatorship, hence he should be
classified as stateless.
 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal
Republic of Germany v. Netherlands)

Facts:
● These cases were concerned with the delimitation of the continental shelf of the North Sea as
between Denmark and the Federal Republic of Germany, and between the Netherlands and the Federal
Republic. These were submitted to the Court by Special Agreement.
● The Court was requested to state the principles and rules of international law applicable, and
undertook thereafter to carry out the delimitations on that basis.
● The principle brought to light was the principle of equidistance which was provided in Article 6 of the
Geneva Convention of 1958 on the Continental Shelf, which was ratified or acceded to by 39 states. This
became the basis of Denmark and the Netherlands’ contention despite Germany not being a party to
the aforementioned Convention.
● On 26 April 1968 the Court issued an Order because Denmark and the Netherlands had the same
interest, joining the proceedings in the two cases.
● On 20 February 1969, a Judgment was delivered, stating that the boundary lines in question were to
be drawn by agreement between the Parties and in accordance with equitable principles so that each
Party, whose areas of the continental shelf constituted the natural prolongation of its land territory
under the sea were taken into consideration.
● The Court rejected the contention that the delimitations in question had to be carried out in
accordance with the principle of equidistance as defined in the 1958 Geneva Convention on the
Continental Shelf.
● The Court took account of the fact that the Federal Republic had not ratified that Convention, and
held that the equidistance principle was not inherent in the basic concept of continental shelf rights, and
that this principle was not a rule of customary international law.

Issue:
Whether or not delimitation must be the object of an equitable agreement between the states involved.

Ruling:
The Court ruled that delimitation must be the object of an equitable agreement between the states
involved. According to Article 6 of the Geneva Convention, equidistance principle is not part of
customary international law. Therefore, in accordance to the Convention, the obligation to use the
equidistance method is merely a secondary one which is only relevant when there is no agreement
between the Parties. Even though the principle of equidistance does not fundamentally create a norm, it
is necessary to the formation of a general rule of law. It was then ruled that the delimitation in these
cases should be excused by equitable agreement.
 SOUTH-WEST AFRICA CASES (SECOND PHASE)

Facts:
● The Territory of South West Africa, was formerly a German colony before the First World War. It was
entrusted to South Africa under the Mandate of December 17, 1920, which was confirmed by the
League of Nations Covenant and accepted by His Brittanic Majesty on behalf of the Union of South
Africa.
● The Mandate System was composed of certain colonies which ceased to exist under the sovereignty of
the states defeated in the war.
● Ethiopia and Liberia’s claims were on the said Mandate, so they asserted on its enforcement. The
Court ruled that Ethiopia and Liberia had no legal rights or interests, hence, there was no
pronouncement regarding the question of whether or not the Mandate was still in force.
● Citing Article 22 of the Covenant of the League of Nations, the Court stated that there were three
categories of mandates, 'A', 'B' and 'C' in the aforementioned Mandate System. The principal element of
each instrument of mandate consisted of conduct provisions, which were the articles defining the
mandatory powers and obligations in respect to the inhabitants of the territory and towards the League
and its organs.
● Additionally, each instrument of mandate contained articles conferring special rights relative to the
mandated territory directly upon the members of the League as individual
States, or in favor of their nationals.
● According to the Court, the dispute was exclusively regarding the conduct provisions, raising the
question of whether or not the members of the League of Nations individually possess special rights
under the conduct provisions.

Issue:
Whether or not the members of the League of Nations individually possessed special rights under the
conduct provisions.

Ruling:
The Court rejected the claims of Ethiopia and Liberia. Ethiopia and Liberia appeared before the Court in
their capacity as former members of the League of Nations. Therefore, the rights they claimed were the
same rights vested in the members of the League during their time in the League. Due to the juridical
character and structure of the institution, individual states cannot act differently regarding League
matters unless specifically provided for by any article of the Covenant. The manner in which the
mandates were drafted, established that the members of the League were not directly concerned with
the creation of the said mandates. Additionally, the consent of the individual members was not required
as they were not considered parties to the instruments of the mandates. The Court also took into
consideration the jurisdictional clauses of minorities treaties signed by the members of the League
Council after World War I. In the case of the mandates, the jurisdictional clauses were for the purpose of
protecting the special rights of the minority populations of the Members of the Council. The
jurisdictional clause of the mandates gave no legal rights or interests to the Members of the Council as
opposed to the provision of legal rights or interests for the minority’s treaties.
 ASYLUM CASE
Judgment of 20 November 1950

Facts:
● The Comombian Ambassador in Lima granted asylum to Victor Raul Haya de la Torre, the Peruvian
leader of the American People’s Revolutionary Alliance on January 3, 1949.
● On October 3, 1948, a military rebellion broke out in Peru. This led to the institution of the
proceedings against Haya de la Torre for instigation and direction of the rebellion. Since the Colombian
Ambassador in Lima granted him asylum, he was able to leave Peru as a political offender. The reasoning
was that the Pan-American Havana Convention on Asylum (1928) laid down that, subject to certain
conditions, asylum could be granted in a foreign embassy to a political refugee who was a national of
the territorial State.
● Peru dissented, stating that Haya de la Torre was only guilty of common crimes, therefore, he was not
to enjoy the benefits of asylum.

Issues:
1. Whether or not Colombia was entitled to unilaterally qualify the nature of the offense so as to bind
Peru to deliver a safe-conduct to Haya de la Torre
2. Whether or not the offense of military rebellion was a common crime

Ruling:
1. The Court ruled that Colombia was not entitled to unilaterally qualify the nature of the offense so as
to bind Peru to deliver a safe-conduct to Haya de la Torre. The Court ruled that in connection to the
Havana Convention, the treaty did not recognize the right of unilateral qualification either explicitly or
implicitly. According to the Havana Convention, guaranties for the refugee were applicable solely to a
case if the territorial State demanded the departure of the refugee from its territory: it was only after
such a demand that the diplomatic Agent who granted asylum could, in turn, require a safe-conduct.
Peru was not bound to deliver a safe-conduct because there was no demand for the departure of Haya
de la Torre.

2. The Court ruled that the offense of military rebellion was not in itself, a common crime. Peru had not
proven Haya de la Torre was merely a common criminal.
 NUCLEAR TESTS CASE
(NEW ZEALAND v. FRANCE)
JUDGMENT OF 20 DECEMBER 1974
Facts:
● The French Government conducted atmospheric tests of nuclear devices at its Centre
d'expérimentations du Pacifique in the territory of French Polynesia, in the years 1966, 1967, 1968,
1970, 1971 and 1972. The main site of the tests was Mururoa atoll, located about 2,500 nautical miles
from New Zealand and about 1,050 nautical miles from the Cook Islands.
● Over the course of the tests, the French Government established “prohibited zones” for aircrafts and
“dangerous zones” for aircrafts and shipping. Due to the tests New Zealand asserted that the tests
caused a nuclear fall-out in their territory. The French Government then said that the radioactive matter
was infinitesimal and will not endanger the health of the New Zealand population. Despite New
Zealand’s requests for the nuclear tests to be stopped, France refused, prompting New Zealand to take
the matter to the International Court of Justice.
● On 9 May 1973, the Registry of the Court received an “Application instituting proceedings against
France in respect of a dispute concerning the holding of atmospheric tests of nuclear weapons by the
French Government in the Pacific Ocean” from the Ambassador of Australia to the Netherlands. The
legal basis used was Article 17 of the General Act for the Pacific Settlement of International Disputes,
Articles 36, paragraph 1, and 37 of the Statute of the Court, and alternatively, Article 36, paragraph 2, of
the Statute of the Court.
● On May 16, 1973, the Ambassador of France to the Netherlands sent a letter to the Registry of the
Court, containing the French Government’s opinion that the Court was manifestly incompetent for the
case at hand and that the case was outside of the Court’s jurisdiction.
● On June 11, 1974, diplomatic correspondence from France was received by New Zealand, the contents
of which were construed to be an unqualified assurance of the French Government’s intent to cease the
atmospheric testing in the South Pacific region in 1974.
● Upon analyzing the Prime Minister of New Zealand’s declaration on November 1, 1974, regarding the
indications of France’s intention to put an end to the nuclear testing in the Pacific, the Court understood
the declaration to mean that the atmospheric testing was “finished for good.”

Issue:
Whether or not unilateral declarations are legally binding under international law.

Ruling:
The Court ruled that the unilateral declarations have legal effect, even without the statements being
said in court, addressed to any State, nor accepted by any State. Therefore, the Court found that the
French Government truly intended to convey that there be no more atmospheric tests. Considering that
New Zealand received the assurance it required, the dispute is no more and the proceedings are
discontinued. Because of this, the Court ruled that New Zealand has no more object to push through
with the case, thus, the Court need not render a Decision anymore. The Court ruled that States may
choose to take their own stand in certain matters with the intention of binding themselves to an
obligation. When States make declarations restricting their own freedom, a strict interpretation must be
employed. Such declarations may imply legally binding obligations between States. In any obligation it
must also be considered that a basic principle is the observance of “good faith.” The Court stated “just
as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding
character of an international obligation assumed by unilateral declaration.” Hence, States may take
cognizance of unilateral declarations binding themselves to the obligations created by such declarations
out of respect for the trust and confidence these declarations are imbued with.
 LEGALITY OF THE USE BY A STATE OF NUCLEAR WEAPONS
IN ARMED CONFLICT
Advisory Opinion of 8 July 1996

Facts:
● In a letter dated 27 August 1993, the World Health Organization raised the following question: “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 Court identified three conditions which must be satisfied in order to determine the jurisdiction of
the Court when a request for an advisory opinion is submitted to it by a specialized agency: the agency
requesting the opinion must be duly authorized under the Charter of the United Nations to request
opinions from the Court; the opinion requested must be on a legal question; and this question must be
one arising; within the scope of the activities of' the requesting agency
● Since the third condition was not met, it was decided that the World Health Organization (WHO) is
authorized to deal with the effects on health of the use of nuclear weapons, or of any other hazardous
activity, and to take preventive measures aimed al: protecting the health of populations in the event of
such weapons being used or such activities engaged in, the question put to the Court in the present case
relates not to the effects of the use of nuclear weapons on health, but to the legality of the use of such
weapons in view of their health and environmental effects.

Issue:
Whether or not the World Health Organization was authorized to request an advisory opinion regarding
the legality and effect of the usage of nuclear weapons by the States

Ruling:
The Court ruled that the World Health Organization was not authorized to request such advisory. This is
because the question raised about the regulation of armaments and disarmament were within the
United Nations’ competence and outside of the competence of specialized agencies such as the World
Health Organization. According to the United Nations Charter, the World Health Organization’s
responsibilities are necessarily restricted to the sphere of public "health" and cannot encroach on the
responsibilities of other parts of the United Nations system. The Court further stated that international
organizations do not possess a general competence, unlike States, but are instead governed by the
"principle of speciality", which means that they are invested by the States with powers, the limits of
which, were the functions of the common interests whose promotion those States entrusted to them.
 PAQUETE HABANA (175 US 677) 1900

FACTS:
During the Spanish-American War, 2 fishing vessels using the flag of Spain were caught during the Cuban
blockade made by the US Navy at the coast of Cuba and was considered as prizes of war. It was claimed
that the vessels did not know there was a blockade nor was there a war between the Spaniards and the
Americans. It had no arms, ammunitions, nor made an attempt to flee the blockade nor resisted
capture.

The 1st vessel, Paquete Habana, was a sloop and had 3 Cuban crew, which have a fishing license from
Spain while the 2nd, Lola, was a schooner and had 6 Cuban crew, which did not have any fishing license.
Both vessels were brought to Key West and a libel for condemnation was filed and then was sold by
auction together with its cargo for 490 and 800USD respectively.

Owner claims that it is a tradition that fishing vessels together with their crew and cargo are exempted
from the spoils of war.

ISSUE/S:
Whether or not fishing vessels are exempted from capture as prizes of war

RULING:
YES. Since ancient civilized nations until gradually becoming a rule in international law, fishing vessel are
exempt, together with its crew and cargo, from capture as prizes of war.

According to multiple treaties and respected publicists, it is an established rule of international law,
founded on considerations of humanity to poor and industrious order of men, and of the mutual
convenience of belligerent states, that coasting fishing vessels, with their implements and supplies,
cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in
fresh fish, are exempt from capture as prize of war.

The exemption of course does not apply to coast fishermen or their vessels if employed for a warlike
purpose, or in such a way as to give aid or information to the enemy; nor when military or naval
operations create a necessity to which all private interest must give way.
Nor has the exemption been extended to ships or vessels employed in the high sea in taking whales or
seals or cod or other fish not brought fresh to the market, but are salted or otherwise cured and made a
regular article of commerce
 TEMPLE OF PREAH VIHEAR
[CAMBODIA V. THAILAND] (ICJ REPORTS) 1962

FACTS:
The Temple of Preah Vihear is an ancient shrine located at the borders between Cambodia and Thailand.
The boundary is the result of treaties which were negotiated in 1904-07, which determined the line to
follow a watershed in the area, a natural phenomenon which enclosed the temple within Thailand.
However, the maps were later produced a French firm at the request of Siamese Government, deviated
from the previous watershed line so the Temple of Preah Vihear is now in Cambodia. The map was
never formally approved by the Mixed Commission as it ceased its function before the creation of the
map. Since then, the Siamese Government did not react nor contested the boundary issue.

In 1949, the French Government protested the occupation but without an answer. In 1953, Cambodia
became independent thus preceded the complaint. Cambodia complained that Thailand militarily
occupied a part of its territory at the Temple of Preah Vihear and asked the Court to declare that the
territory belongs to Cambodia.
Thailand argues that the map has no binding effect since the Mixed Commission did not agree.

ISSUE/S:
Whether or not Thailand may claim that the Temple is within their territory

RULING:
NO. Although Thailand did not expressly recognize the validity of the maps, it is its obligation to inspect
the maps, and failure to do so is taken as a tacit adoption.

Under the concept of “Acquiescence” it protects a country having taken a position adverse to the
interest of another, where the other fails to protest within a reasonable time. the latter is estopped to
contest in a later time.
However, for “Acquiescence” to apply, it must be under circumstances from which consent on the
adverse party could reasonably inferred.
In this case, Thailand’s duty is to inspect the maps and to detect error. A plea of error will not be allowed
in international law where the parties could have avoided it.
Furthermore, both countries adopted the alleged map and published their maps according to it. Thus,
the Court found it is not necessary to develop the Preclusion Theory.
“Preclusion” in international law is the process by which one nation acquires sovereignty over an area by
long possession adverse to real sovereign.
 CASE CONCERNING RIGHT OF PASSAGE OVER INDIAN TERRITORY
[PORTUGAL V. INDIA] (ICJ REPORTS) 1960

FACTS:
Portuguese territory at the Indian peninsula is divided into 3 districts (Goa, Damão and Diu) forming as
the “Portuguese State of India”. In Damão, it includes the area of Dadrá and Nagar-Aveli, which is inside
the territory of now India, thus exclaves of Portugal. Portugal exercises its right of passage to these
exclaves based on a treaty in 1779 between Portugal and the sovereign of Punem, which formerly had
dominion over Dadrá and Nagar-Avelu. Since then even until the British occupation of India, Portugal
exercised its right of passage. However, on 1954, the Indian Government began to prevent Portugal’s
exercise of its right of passage and then armed bands from Indian territory attacked the enclaves. The
Portuguese Government attempted to help the exclaves but did not want to dispatch without first
notifying the Indian Government. Hence, demanded from the latter for it to allow Portuguese officials
and armed forces to cross the Indian territory in order to help its exclaves. However, was prevented thus
the exclaves are now isolated from their mother country.

ISSUE/S:
Whether or not Portugal has the right of passage into its exclave territory

RULING:
YES. Portugal had a right of passage in respect of private persons, civil officials and goods in general.
However, not to armed personnel.

Based on the Treaty being invoked by Portugal, the Court cannot conclude from an examination of the
texts of the Treaty that the language employed therein was intended to transfer sovereignty, what is
established is that Portugal was granted only a revenue tenure called jagir or saranjam. Hence, there
could be no question of any exclave or any right of passage. However, when the British colonized the
area, it acknowledged the right of passage of Portugal. As a consequence, the villages became indeed an
exclave of Portugal. This was thus, tacitly recognized by the now Indian Government.

In a treaty between Britain and Portugal made on 1878, armed forces of the 2 Governments should not
enter the Indian dominions of the other, except in specified cases or in consequence of a formal request
made by either party; which was eventually passed on the successive Indian Government.

Hence, it is unnecessary for the Court to determine whether or not general international custom or
general principles of law recognized by civilized nations could be invoked by Portugal since there is
already a practice being followed by both parties and its process of implementation.

Furthermore, the Court found that the events at the exclaves which led to the overthrow of Portuguese
authority created tension in the surrounding Indian district. Hence, India’s refusal of passage was
covered by its power of regulation and control of the right of passage of Portugal.
 CORFU CHANNEL CASE
[UNITED KINGDOM V. ALBANIA] (ICJ REPORTS) 1949

FACTS:
After the Greek Civil War, thousands of mines were left at the Corfu Channel so the governments of UK,
US, USSR and France sought to clear the mines. Britain was tasked to clean the Albanian territorial
waters.
On 15 May 1945, Cruisers Orion and Superb were fired upon by Albanian cannons but luckily did not hit
the warships. UK protested such violation of international maritime custom and demanded public
apology. Albania argued that the vessels violated Albanian territorial waters and passage requires
Albanian permission.
On 22 October 1945, Cruisers Mauritius & Leander and Destroyers Saumarez & Volage went into the
channel. Saumarez struck a mine killing 36 persons, Volage also struck a mine killing 8 persons.
On November, the Royal Navy undertook a mine clearing operation at the channel without notice from
Albania thus the latter complained it as incursion into Albanian waters. UK concluded Albania laid the
mines or knows the area but did not notify the danger zones to the Governments of all countries and
demanded reparations from Albania while the latter denied laying of the mines and blamed Greece
instead.
UK filed a complaint to the newly created ICJ

ISSUE/S:
Whether or not Albania has the obligation to inform Britain of the mines.

RULING:
YES. Since the channel is used for innocent passage of ships, Albania has the duty to inform those
passing.

It is a rule in international law that in times of peace, both warships and merchant vessels have a right of
innocent passage through straits forming highways of international maritime traffic. Hence, Albania has
the obligation to inform ships passing through.

The Court stated that it did not need to determine who had placed the mines: given that they were in
Albanian territorial waters, and that the evidence placed the minelaying activity at a recent time, during
which Albania was known to have high levels of security. Thus, the Albanian government would have
had knowledge of any minelaying operations in the Corfu Channel, and as such, had a responsibility to
notify other states of the navigational hazard they present.

However, the ICJ said UK may not mine sweep the channel since mine sweeping is outside the definition
of innocent passage and its contention that Albania mined the area is untenable for lack of basis.
 CHORZOW FACTORY CASE
[GERMANY V. POLAND] (PCIJ SER.A, NO.17) 1928

FACTS:
The German Reich entered into a contract with Bayerische Stickstoffwerke A.-G. (Bayerische) for the
construction of a nitrate factory in Chorzów, Upper Silesia. Sometime later, another company,
Oberschlesische Stickstoffwerke A.-G. (Oberschlesische) was formed. It would own the land and the
factory previously owned by Germany while Bayer would handle the management and operations.
However, on 1922, following the Upper Silesia plebiscite, the area became a Polish territory. Sometime
after, the Polish Court cancelled the ownership of Oberschlesische as the owner of the land and the
factory and gave it to the Polish Government. Poland delegated full power to Ignatz Moscicki to take
possession of the factory and its management.
Oberschlesische and Bayerische filed actions to recover possession of the factory before the German-
Polish Mixed Arbitral Tribunal but to no avail. Germany personally initiated negotiations with Poland
demanding reparations since it was impractical to return the properties but also to no avail.
Germany filed a suit to PCIJ demanding reparation from Poland, claiming it violated the Treaty of
Versailles by liquidating the properties. Under Article 92 of the treaty, property, rights and interests of
German nationals shall not be liquidate by the Polish Government, except on condition (1) that the
proceeds shall be paid directly to the owner and (2) if the Mixed Tribunal or an arbitrator is satisfied that
the sale by Poland outside its general legislation were unfairly prejudicial to the price obtained, they
shall have discretion to award to the owner equitable compensation.
However, Poland replied that the Court (1) has no jurisdiction or (2) the application could not be
entertained until the German-Polish Mixed Arbitral Tribunal had given judgement.

ISSUE/S:
Whether or not Poland should pay Germany

RULING:
YES. The Court ruled that it is a principle of international law that any breach of an engagement creates
an obligation to make reparation.
Under Article 23 of the Geneva Convention, reparation is the indispensable complement of a failure to
apply a convention, and there is no necessity for this to be stated in the convention itself and such
reparation must, as far as possible, wipe out all the consequences of the illegal act.
If Restitution is no longer possible, Indemnity corresponding to the damage caused
 BARCELONA TRACTION, LIGHT AND POWER COMPANY CASE
[BELGIUM v. SPAIN] (ICJ REPORTS) 1970

FACTS:
Barcelona Traction, Light and Power Company was incorporated in Toronto, Canada for the purpose of
creating and developing an electric power production and distribution system at Catalonia, Spain. After
the First World War its share capital was mostly held by Belgian nationals but Spain contends this was
not proven. After the Spanish Civil War, it was declared bankrupt by the Spanish Court and its assets
were seized.
Belgium filed a case with the International Court against Spain for reparation of damages allegedly
caused to those Belgian shareholders of Barcelona Traction due to the Spanish expropriation of the
corporation.
Spain raised 4 objections, the 1 st and 2nd concerning about the jurisdiction of the Court was scrapped,
while the 3rd questions the legal capacity of Belgium and the 4 th claims that local remedies in Spain had
not been exhausted yet.

ISSUE/S:
Whether or not Belgium have a right of diplomatic protection to its citizens shareholders.
RULING:
NO. The state of shareholders of a company have no right of diplomatic protection if it is not the
national state of the company.

The Court observed that when a State admits into its territory foreign investments or foreign nationals,
it was bound to extend 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, a State must first establish its right to do so.

In this case, there is no showing that Belgium and Spain had a treaty or a special agreement. Hence, only
the company endowed with legal personality could take action. A wrong done to the company usually
cause prejudice to its shareholders but this does not imply that both were entitled to claim
compensation.

The general rule of international law authorized the national State of the company alone to exercise
diplomatic protection for the purpose of seeking redress. No rule of international law confers right on
the shareholder’s national State.

Hence, Belgium has no legal standing to bring this action.

 TEXACO v. LIBYA (53 ILR 389) 1978

FACTS:
Several oil companies were operating under 14 different concession agreements in line with the
amended Libyan Petroleum Laws. However, Libya issued decrees which nationalized all of the rights,
interests and property of Texaco Overseas Petroleum Company and California Asiatic Oil Company
(claimants) and 7 other oil companies. It is said that the claimants were responsible for the debts
accrued pursuant to their actions.
Claimants argue that under Clause 16, the authorities shall take steps necessary to ensure that the
companies enjoy all the rights conferred upon it by the concession and the contractual rights expressly
provided may not be infringed except by agreement of both parties. Also, under Clause 28, the
concession shall be governed by and interpreted in accordance with the principles of the Law of Libya
common to the principles of international law and in the absence of such common principles then by
and in accordance with the general principles of law, including those applied by international tribunals.
Claimants requested designation of an arbitrator but the Libyan Government did not. Thus, they filed
with the International Court of Justice, which in turn appointed a French Law Professor, René-Jean
Dupuy.
The arbitrator fixed Geneva as the place of arbitration. However, despite multiple notices and extension
to the Libyan Government, it did not participate in the proceedings. Nonetheless, Arbitrator still
informed Libya what occurred in all stages of the proceedings. Finally, Arbitrator decided that the
Concessions are binding to the parties and Libya breached its obligations under the contracts when it
nationalized the oil companies.

Libya argues with respect to nationalization, municipal law must govern and not international law.
Claimants invoke UN General Arbitration resolutions pursuant to Clause 28 of the concessions.

ISSUE/S:
Whether or not reference made to general principles of law in the International arbitration context a
sufficient criterion for the internationalization of a contract

RULING:
YES. Whenever reference is made to general principles of law in the international arbitration context, it
is always held to be a sufficient criterion for the internalization 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.

Although 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.
 BP EXPLORATION COMPANY v. LIBYA (53 ILR 297) 1973

FACTS:
In 1957, the Petroleum Commission of the Government of Libya, pursuant to Libyan Petroleum Law
granted Concession 65 to Mr. Hunt, US citizen. In 1960, BP Exploration Company (BPEC) acquired from
Mr. Hunt an undivided one-half interest in Concession 65, which grants an exclusive right for 50 years to
search for and extract petroleum at Libya and then so sell such oil. Under Clause 16 of the Concession,
the rights created may not be altered except by mutual consent. Under Clause 28 of the Concession,
disputes are settled in accordance to Libyan law common to the principles of international law, and in
the absence of common principles then by general principles of law.

In 1971, the Libyan Government enacted a law nationalizing the activities of BPEC as retaliation against
the British Government. BPEC contested that the act is tantamount to unilateral and unacceptable
repudiation of the Concession. The Libyan Government did not respond thus prompting BPEC to go to
the International Court of Justice (ICJ). According to ICJ Arbitrator:
1. the Libyan Government violated the Concession;
2. the violation is tantamount to termination of the Concession;
3. BPEC is entitled to the rights granted by the Concession;
4. BPEC is the owner of its share of any oil pursuant to the Concession;
5. BPEC is entitled to damages.

ISSUE/S:
1. Whether or not the nature of Concession No. 65 is a contractual instrument
2. Whether or not the Libyan law is excluded as governing law
3. Whether or not there was a breach of contract
4. Whether or not the breach of contract is tantamount to extinguishment

RULING:
1. YES. Under Concession 65, the arrangements between respondent, BPEC and Mr. Hunt
constitutes a direct contractual link.
2. NO. Under Concession 65, only in case where the Libyan law is in conflict or absent then
general principles of international law will apply.
3. YES. The BP Nationalization Law, and the actions taken by the respondent Government is a
fundamental breach of the BP Concession as they amount to a total repudiation of the
agreement.
4. NO. Under the Vienna Convention, a material breach of a bilateral treaty by one of the
parties entitles the other to invoke the breach as a ground for terminating or suspending its
operation in whole in part. Hence, it depends on the winning party.
 SAUDI ARABIA v. ARABIAN AMERICAN OIL COMPANY (ARAMCO)
27 ILR 117. 1963

FACTS: 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
known as the Arabian Oil company). 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., by Articles IV
and XV of which the Company was given a thirty years’ “right of priority” for the transport of Saudi Arab
oil. Briefly, the point at issue in the present dispute was the conflict between those provisions and the
agreement with Aramco, which gave the latter the exclusive right to transport the oil which it had
extracted from its concession area in Saudi Arabia.

ISSUES: (a) Whether or not a ARAMCO enjoys an exclusive right to transport, not only within the
territorial waters but also across the boundary which separates these waters from the high seas?
(b) Whether or not the rights of a private person, who entered a contract with a State, must be
interpreted restrictively?

RULING: (a) Yes. Article 1 of the Concession Agreement of 1933 reads as follows:

“The Government hereby grants to the Company an the terms and conditions hereinafter
mentioned, and with respect to the area defined below, the exclusive right, for a period of sixty
years from the effective date hereof to explore, prospect, drill for, extract, treat, manufacture,
transport, deal with carry away and export Petroleum asphalt, naphtha natural greases,
ozokerite and other hydrocarbons and the derivatives of all such products.
As expressly stated from the 7948 Offshore Agreement, Aramco enjoys an exclusive right to transport,
not only within the territorial waters, but also across the boundary which separates these waters from
the high seas. Several proofs of this conclusion can be found in the documents submitted to the
Tribunal. 

However, the Government argued that it has negotiated with an oil company and not with a maritime
transport company. It notes, further, that, as Aramco never owned a fleet of tankships, the Government
cannot have intended to grant to that Company an exclusive right which the latter was unable to
exercise itself. In contrary to the Government’s contentions, the Arbitration Tribunal is bound to observe
that, as soon as oil in commercial quantities was discovered, the question of its transport by sea by
Aramco imperatively arose. Consequently, this question had necessarily to be taken into account when
the 1933 Concession Agreement was concluded. At that time Saudi Arabia did not possess any tankships
and no tankers company existed in the Persian Gulf which could be entrusted by Aramco with the task
of transporting petroleum, if discovered. The responsibility of maritime transport could only be
Aramco's. To this end, Aramco first acquired or chartered a few vessels, barges and tugs in order to
transport its productions to Bahrein across the high seas.

(b) No. The Arbitration Tribunal cannot accept the contention that, for the sole reason that a State is a
Party to a contract with a private Person, the rights of the latter must be interpreted restrictively, In its
opinion, the rights of the Parties must be evaluated and examined in a spirit of complete equality. This is
because the rights of one Party are increased as a result of restrictive Interpretation to the extent that
the rights of the other Party are restricted. This result cannot be founded only upon the quality of the
subjects involved in a contractual relationship. It is only when the exact meaning of such a contract is
impossible to determine that the Interpretation most favourable to the freedom of the State may be
adopted. This was held, with respect to inter-State relations; by the Permanent Court of International
Justice. Moreover, the judicial solution just quoted could not be applied automatically, even if the State
considered that some interests involving its sovereignty are concerned. The restrictions of its powers,
which a State accepts by contract, are a manifestation of its sovereignty and States are bound to fulfil
their obligations to the same extent as private persons. Restrictive interpretation may only be justified
when the sovereign rights invoked by the State concern interests of a general nature which cannot be
defended otherwise than by disregarding the doubtful clauses of a contract.

Having considered that Aramco's exclusive right to transport by sea was proved beyond all question, the
Arbitration Tribunal has no hesitancy in finding that the company is legally protected by this principle of
acquired rights. It holds that Aramco is justified in resisting any infringement of the rights granted to it.
 HOLY SEE v. HON. ERIBERTO ROSARIO JR.
G.R. No. 101949. December 1, 1994

FACTS: Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is
represented in the Philippines by the Papal Nuncio. Private respondent, Starbright Sales Enterpresis,
Inc., is a domestic corporation engaged in the real estate business. This petition arose from a
controversy over a parcel of land consisting of 6,000 square meters located in the Municipality of
Paranaque and registered in the name of petitioner. Said lots are covered by TCTs and registered in the
name of Philippine Realty Corporation. The three lots were sold to Ramon Licup, subsequently he
assigned his rights to the sale to private respondent. In view of the refusal of the squatters to cavate the
lots sold to private respondent, a dispute arose as to who of the parties has the responsibility of evicting
and clearing the land of squatters. Complicating the relations of the parties was the sale by petitioner of
one of the lots to Tropicana Properties and Development Corporation.

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

RULING: Yes. As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the
generally accepted principles of International law and the Philippines has accorded the Holy See the
status of a sovereign. According to the restrictive theory, the immunity of the sovereign is recognized
only with regard to public acts (jure imperii) of a state, but not with regard to private acts (jure
gestionis). In the case at bar, Lot 5-A was acquired by petitioner as a donation from the Archdiocese of
manila. The donation was made not for commercial purpose, but for the use of petitioner to construct
thereon the official place of residence of the Papal Nuncio. Furthermore, the decision to transfer the
property and the subsequent disposal thereof are likewise clothed with governmental character.
Petitioner did not sell lot for profit or gain It merely wanted to dispose of the same because the
squatters living thereon made it impossible for petitioner to use it for the purpose of the donation.

Ultimately, private respondent is not left without any legal remedy for the redress of its grievances.
Under both Public International Law and Transnational Law, a person who feels aggrieved by the acts of
a foreign sovereign can ask his own government to espouse his cause through diplomatic channels.
 BARCELONA TRACTION, LIGHT AND POWER COMPANY CASE (Belgium V. Spain)
ICJ Reports. 1970

FACTS: Proceedings in the case concerning the Barcelona Traction, Light and Power Company, Limited
(Belgium v. Spain) were instituted by an Application of 19 June 1962. The claim arose out of the
adjudication in bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada The the
Belgian Government sought reparation for damage claimed to have been caused to Belgian nationals,
shareholders in the Canadian Barcelona Traction company, by the conduct of various organs of the
Spanish State.

ISSUE: Whether or not the Belgian Government has the right to exercise diplomatic protection of
Belgian shareholders in a company incorporated in Canada

RULING: No. The Court observed that a 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 afforded them. But such obligations, said the Court, 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.

Further, the Court found that the question of the jus standi of a government to protect the interests of
shareholders raised an antecedent question of what was the juridical situation in respect of
shareholding interests, as recognized by international law. A finding by the Court that it had no jus
standi would be tantamount to a finding that those rights did not exist and that the claim was not well-
founded in substance. It had been maintained that a State could make a claim when investments by its
nationals abroad, such investments being part of a national economic resources, were prejudicially
affected in violation of the right of the State itself to have its nationals enjoy a certain treatment. But, in
the present state of affairs, such a right could only result from a treaty or special agreement. And no
instrument of such a kind was in force between Belgium and Spain.

It had also been maintained that, for reasons of equity, a State should be able, in certain cases, to take
up the protection of its nationals, in a company which had been the victim of a violation of international
law. The Court considered that the adoption of the theory of diplomatic protection of shareholders as
such would open the door to competing claims on the part of different States, which could create an
atmosphere of insecurity in international economic relations. In the particular circumstances of the
present case, where the company's national State was able to act, the Court was not of the opinion that
jus standi was conferred on the Belgian Government by considerations of equity. Since no jus standi
before the Court had been established, it was not for the Court to pronounce upon any other aspect of
the case Accordingly, the Court rejected the Belgian Government's claim by 15 votes to 1, 12 votes of
the majority being based on the reasons set out above.
 REPARATIONS FOR INJURIES SUFFERED IN THE SERVICE OF UNITED NATIONS
ICJ Reports. 1949.

FACTS: On December 3, 1948, the General Assembly of the United Nations adopted the following
Resolution :

"Whereas the series of tragic events which have lately befallen agents of the United Nations
engaged in the performance of their duties raises, with greater urgency than ever, the question
of the arrangements to be made by the United Nations with a view to ensuring to its agents the
fullest Measure of protection in the future and ensuring that reparation be made for the injuries
suffered
Whereas it is highly desirable that the Secretary-General should be able to act without question
as efficaciously as possible with a view to obtaining any reparation due ; therefore

Thus, the Generally Assembly decides to submit the following legal questions to the International Court
of Justice for an advisory opinion:
ISSUE: Whether or not the UN has the capacity to bring an international claim against the responsible de
jure or de facto government with a view to obtaining the reparation due in respect of the damage cause
(a) to the UN, (b) to the victim or persons entitled to him

RULING: The Court has come to the conclusion that the Organization is an international person, that is
not the same thing as saying that it is a state, which means that it is a subject of international law and
capable of possessing international rights and duties, and capacity to maintain its rights by bringing
international claims.

(a) Yes. It cannot be doubted that the Organization has the capacity to bring an international claim
against one of its Members which has caused injury to it be a breach of its international obligations
towards it. The damage specified herein means exclusively damage caused to the interests of the
Organization itself, to its administrative machine, to its property and assets, and to the interests of
which it is the guardian. It is clear that the Organization has the capacity to bring a claim for this
damage. As the claim is based on the breach of an international obligation on the part of the Member
held responsible by the Organization, the Member cannot contend that this obligation is governed by
municipal law, and the Organization is justified in giving its claim the character of an international claim.
However, the Court is not called upon to determine the precise extent of the reparation which the
Organization would be entitled to recover. It may be said that the measure of the reparation should
depend upon the amount of the damage which the Organization has suffered as the result of the
wrongful act or omission of the defendant State and should be calculated in accordance with the rules
of international law.

(b) Yes. The capacity or obligation of the Organization to exercise a measure of functional protection of
its agents arises by necessary intendment out of the Charter. Thus, the obligations entered into by
States to enable the agents of the Organization to perform their duties are undertaken not in the
interest of the agents, but in that of the Organization. When it claims redress for a breach of these
obligations, the Organization is invoking its own right, the right that the obligations due to it should be
respected. On this ground, it asks for reparation of the injury suffered, for "it is a principle of
international law that the breach of an engagement involves an obligation to make reparation in an
adequate form", as stated by the Permanent Court in its Judgment No. 8. Therefore, in claiming
reparation based on the injury suffered by its agent, the Organization does not represent the agent, but
is asserting its own right, the right to secure respect for undertakings entered into towards the
Organization.
 THE MAVROMMATIS PALESTINE CONCESSIONS (Greece v. Britain)
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 13, 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.  

ISSUE: Whether or not the Permanent Court of International Justice has jurisdiction over the case which
deals with a dispute one of the parties to which is an individual

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.

The general basis of the jurisdiction given to the Permanent Court of International Justice is set down in
Articles 34 and 36 of the Statute, according to which, in the first place, only States. or Members of the
League of Nations may appear before it and, in the second place, it has jurisdiction to hear and
determine "all cases which the Parties refer to it and all matters specially provided for in Treaties and
Conventions in force". 

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 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 question of certain expenses of the United Nations (Article17, paragraph 2, of the Charter)
has been put to the Court for an advisory opinion by a resolution adopted by the General Assembly of
the United Nations of 20 December 1961.

Expenditures authorized in certain General Assembly resolutions enumerated in the request for opinion,
relating to the United Nations operations in the Congo and in the Middle East undertaken in pursuance
of Security Council and General Assembly resolutions likewise enumerated in the request were
"expenses of the Organization" within the meaning of Article 17, paragraph 2, of the Charter of the
United Nations.

ISSUE: Whether or not the expenditures in question should be considered as expenses of the
Organization?

RULING: Yes. The text of Article 17, paragraph 2, referred to "the expenses of the Organization" without
any further explicit definition. The interpretation of the word "expenses" had been linked with the word
"budget" in paragraph1of that Article and it had been contended that in both cases the qualifying
adjective "regular" or "administrative" should be understood to be implied.

Under paragraph 2 of Article 17, the General Assembly was given the power to apportion the expenses
among the Members, which created the obligation of each to bear that part of the expenses which was
apportioned to it. When those expenses included expenditures for the maintenance of peace and
security which were no otherwise provided for, it was the General Assembly which had the authority to
apportion the latter amounts among the Members.

In relation to the financing of the operations in the Congo, the Court, recalling the General Assembly
resolutions contemplating the apportionment of the expenses in accordance with the scale of
assessment for the regular budget, concluded therefrom that the General Assembly had twice decided
that even though certain expenses were "extraordinary" and "essentially different" from those under
the "regular budget", they were none the less "expenses of the Organization” to be apportioned in
accordance with the power granted to the General Assembly by Article 17, paragraph 2.

Having thus pointed out on the one hand that the text of Article 17, paragraph 2 of the Charter could
lead to the conclusion that the expenses of the Organization were the amounts paid out to defray the
costs of carrying out the purposes of the 0rganization and on the other hand that the examination of the
resolutions authorizing the expenditures referred to in the request for the advisory opinion had led to
the finding that they had been incurred with that end in view. The Court arrived at the conclusion that
the question submitted to it by the General Assembly must be answered in the affirmative.
 MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA V. USA)
JUDGMENT OF THE COURT OF JUNE 27,1986

FACTS: On April 9,1984, Nicaragua had initiated proceedings against the United States of America in the
International Court of Justice. The action was based on the allegation that the United States had
supported by its policy and actions a mercenary army, the contras, in launching attacks on the territory
of Nicaragua, with the purpose of overthrowing the (Sandinista) Government of Nicaragua. On April
9,1984, Nicaragua had initiated proceedings against the United States of America in the International
Court of Justice. The action was based on the allegation that the United States had supported by its
policy and actions a mercenary army, the contras, in in violation of the international obligations of the
United States under general international law as well as under the United Nations Charter, the OAS
Charter and the bilateral United States-Nicaragua Treaty of Friendship and Commerce. In particular, it
was submitted by Nicaragua that the United States was violating the prohibition of the use of force in
international relations and the parallel rule on prohibition of intervention. The United States (D)
challenged the jurisdiction of the I.C.J when it was held responsible for illegal military and paramilitary
activities in and against Nicaragua (P) in the suit the plaintiff brought against the defendant in 1984.
Though a declaration accepting the mandatory jurisdiction of the Court was deposited by the United
States (D) in a 1946, it tried to justify the declaration in a 1984 notification by referring to the 1946
declaration and stating in part that the declaration “shall not apply to disputes with any Central
American State”. At the end of the first phase, the Court finally had decided in its judgment on
jurisdiction and admissibility of 26 November 1984 that it had jurisdiction under Article 26 para. 2 of the
Statute. Having lost in the jurisdiction and admissibility phase, however, the United States did not cease
to continue in contesting the Court's jurisdiction and decided not to appear before the Court in the
proceedings on the merits. That decision made the dispute even more complicated to resolve for the
Court, but the Court came to the conclusion that the United States' non-appearance did not prevent it
from giving a decision in the case. The Court has to satisfy itself that the claim of the party appearing is
well founded in fact and law . There exists no possibility of a judgment automatically in favor of the
applicant State, but the Court also has to ensure that the party which declines to appear should not be
permitted to profit from its absence.

Apart from maintaining the ground that the I.C.J 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 I.C.J. against the
United States. Also, the plaintiff intent to submit to the compulsory jurisdiction of the I.C.J. was pointed
out by the valid declaration it made in 1929 with the I.C.J’s predecessor, which was the Permanent Court
of International Justice, even though Nicaragua had failed to deposit it with that court. The admissibility
of Nicaragua’s application to the I.C.J. was also challenged by the United States.

ISSUE: Whether or not there is 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? And whether
or not if there is no grounds exist to exclude the application of a state, is the application of such a state
to the International Court of Justice admissible?

HELD: Yes. The jurisdiction of the Court to entertain a dispute between two states if each of the States
accepted the Court’s jurisdiction is within the jurisdiction of the International Court of Justice. Even
though Nicaragua (P) declaration of 1929 was not deposited with the Permanent Court, because of the
potential effect it had that it would last for many years, it was valid.
Thus, it maintained its effect when Nicaragua became a party to the Statute of the I.C.J because the
declaration was made unconditionally and was valid for an unlimited period.

The intention of the current drafters of the current Statute was to maintain the greatest possible
continuity between it and the Permanent Court. Thus, when Nicaragua (P) accepted the Statute, this
would have been deemed that the plaintiff had given its consent to the transfer of its declaration to the
I.C.J. When no grounds exist to exclude the application of a state, the application of such a state to the
International Court of Justice is admissible. The five grounds upon which the United States (D)
challenged the admissibility of Nicaragua’s (P) application were that the plaintiff failed because there is
no “indispensable parties” rule when it could not bring forth necessary parties, Nicaragua’s (P) request
of the Court to consider the possibility of a threat to peace which is the exclusive province of the
Security Council, failed due to the fact that I.C.J. can exercise jurisdiction which is concurrent with that
of the Security Council, that the I.C.J. is unable to deal with situations involving ongoing armed conflict
and that there is nothing compelling the I.C.J. to decline to consider one aspect of a dispute just because
the dispute has other aspects due to the fact that the case is incompatible with the Contadora process
to which Nicaragua (P) is a party. Concerning the United States' preliminary objection that the questions
of the use of force and collective self-defence raised in the case were not justiciable, the Court argued
that as a "legal dispute" the case did not necessarily involve it in evaluation of political or military
matters, but that the issues raised of collective self-defence were legal questions which it had
competence to determine. The multilateral treaty reservation invoked by the United States, however,
was confirmed by the Court to be a relevant obstacle to further exercise of its jurisdiction, at least in
part. In the first (procedural) phase the Court had declared that the objection to jurisdiction based on
the reservation did "not possess, in the circumstances of the case, an exclusively preliminary character"
since it contained both preliminary aspects and other aspects relating to the merits and that,
accordingly, it had to be dealt with at the stage of the merits. The reservation had excluded from the
jurisdiction of the Court all "disputes arising under a multilateral treaty" which could affect third States
which are parties to the treaty but which are not participating in the proceedings before the Court.

Therefore, the jurisdiction conferred on the Court by the United States declaration under Article 36
para. 2 of the Statute did not permit the Court to entertain the claims based on violations of multilateral
treaties such as the United Nations Charter and the OAS Charter.
 ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO (DEMOCRATIC REPUBLIC
OF THE CONGO V. UGANDA)

FACTS: The Democratic Republic of Congo (DRC) asked the Court to decide that, starting from 02 August
1998, Uganda had engaged in “armed aggression” in the DRC. It argued 1) that Uganda (a) engaged in
military and paramilitary activities against the DRC, (b) occupied DRC territory, and (c) provided military,
logistic, financial and economic support to armed groups in the DRC who operated against the
government; 2) that Uganda committed and failed to prevent violations of human rights and
humanitarian law; and 3) that Uganda engaged in and failed to prevent the illegal exploitation of
Congolese natural resources. The DRC sought remedies, for example, the cessation of internationally
wrongful acts, reparation, and guarantees of non-repetition.
In 1997, President Kabila came into power in the DRC, with the help of Uganda and Rwanda. Initially,
Ugandan and Rwandan forces were present in the DRC following DRC’s invitation and consent. Then, the
DRC’s relations with Uganda and Rwanda deteriorated, and on 28 July 1998, President Kabila announced
the withdrawal of the DRC’s consent to Rwandan military presence in the DRC. On 8 August 1998, Kabila
accused both Ugandan and Rwandan forces of invading the DRC. In June 2003, Ugandan forces
completely withdrew from the DRC. DRC argued that Uganda occupied DRC territory, while Uganda
argued its presence in the DRC was justified:1) until 11 September 1998, based on DRC’s invitation; 2)
from 11 September 1998 until 10 July 1999, based on self-defense; and, 3) from July 1999 until June
2003, based on DRC’s consent.

ISSUES: Was Uganda an occupying power in the DRC? Did Uganda violate principles prohibiting
intervention and use of force though its occupation?Did Uganda as an occupying Power, fail to take
measures to respect and ensure respect for, or violate, human rights (IHRL) and international
humanitarian law (IHL) in occupied areas?

HELD: Uganda argued that its military presence and activities in the DRC were, for most part, based on
an invitation by the DRC and was authorized by/ consented to by the DRC. The Court held that consent
provided by one State to another is limited both in duration (i.e. until the consent is withdrawn) and
scope (i.e. to rely on consent, foreign forces must act within the limits specified in the invitation). The
Court concluded that DRC’s consent was certainly withdrawn by 8 August 1998 and, irrespective of
withdrawal, some Ugandan military activities fell outside the scope of authorization provided by the
DRC. These actions can be justified, if at all, by self-defense. The Court also concluded that Uganda had
occupied the Ituri Province and, in Ituri, it failed to take measures to respect and ensure respect for IHRL
and IHL.

Prior to August 1998 the DRC did not object to Ugandan military presence and activities in its eastern
border. Parties disagreed as to when consent was withdrawn.
For the DRC: Consent withdrawn on 28 June 1998, when the DRC issued a statement terminating” with
effect from this Monday 27 July 1998, the Rwandan military presence. This marks the end of the
presence of all foreign military forces in the Congo.” The DRC argued that even if Uganda was not
mentioned by name, the final phrase meant that consent was withdrawn for Ugandan troops.
For Uganda: Consent was not withdrawn on 27 June 1998 because: 1) the DRC statement only referred
to Rwanda; and 2) any withdrawal of consent required a formal denunciation of the 1998 Security
Protocol. In the 1998 Security Protocol, the DRC and Uganda agreed to co-operate to ensure security
and peace along the common border.
The ICJ could not conclude if the 28 July 1998 statement withdrew consent also for Ugandan presence in
the DRC (the statement mentions only Rwandan troops).
The Security Protocol had not provided the legal basis (authorization/ consent) for the presence of
Ugandan troops, but reaffirmed authorization/ consent. The source of authorization/consent antedated
the Protocol. Thus, the withdrawal of consent did not require a formal denunciation of the 1998 Security
Protocol. Thus, the DRC could withdraw its consent at any time, without any formalities being necessary.
The Court concluded that prior to August 1998 the DRC did not object to Ugandan military presence and
activities in its eastern border and had, sometimes, provided specific authorization for the movement of
troops into the DRC.

However, consent was certainly withdrawn by 8 August 1998 when Kabila accused Uganda of invading
the DRC. Uganda argued that between 1999 to 2003, the DRC, once again, consented to Ugandan
presence. The ICJ held that the four agreements in 1999 and 2000 relied on by Uganda did not alter the
legal status of its presence. These agreements stipulated arrangements made to progress towards
withdrawal of foreign troops. In accepting these modalities, the DRC neither consented to troop
presence nor recognized “…the situation on the ground as legal” either before the agreement or in the
period that would pass until the fulfilment of its terms. This status was not changed even when another
agreement authorized the temporary presence of Uganda troops in the border region of Ruwenzori
Mountains in the DRC, until appropriate security mechanisms had been put in place. The ICJ held that
“this reflects the acknowledgment by both Parties of Uganda’s security needs in the area, without
pronouncing upon the legality of prior Ugandan military actions there or elsewhere.”

The ICJ held that the consent/ authorization provided by the DRC was not an “open-ended consent” and
was restricted in terms of “geographic location and objectives.” Initially, the DRC had accepted that
Uganda could act, or assist in acting against the rebels in the eastern border and to prevent them from
acting across the common border. Thus, Ugandan military operations 1) against rebels and 2) in eastern
border towns were covered under the invitation. However, the nature and extent of those Ugandan
military operations in August 1998, in the three border towns that resulted in Uganda taking control of
these towns and their airports (paragraph 110) were “quite outside any mutual understanding between
the Parties as to Uganda’s presence on Congolese territory”.

Thus, even if the DRC had not withdrawn consent, these activities will fall outside the authorization
provided by the DRC.
 SAUDI ARABIA V. NELSON

FACTS: A U.S. citizen Nelson filed suit against Saudi Arabia for alleged abuse and torture suffered while
under arrest in Saudi Arabia. A married couple of United States citizenry filed a tort action against the
Kingdom of Saudi Arabia, King Faisal Specialist Hospital in Riyadh owned by the Saudi government, and
the hospital's corporate agent in the US, Royspec Purchasing Services. The tort claim against these three
entities, collectively referred to as the Saudi government, alleged that Mr. Nelson, a hospital engineer in
Riyadh, was subjected to illicit incarceration, routine torture spanning a four-day period, and failure to
admonish him as to the potential risks incurred by whistle-blowing. Based on the Saudi government's
alleged wrongful actions, Mr. Nelson believed the US Foreign Sovereign Immunities Act of 1976 (FSIA)
authorized the court jurisdiction to hear the case. The Hospital Corporation of America, Ltd. (HCA), a
career recruiting firm based in the US, placed ads in various media outlets for the position of monitoring
systems engineer at the King Faisal Specialist Hospital in Riyadh. Mr. Nelson interviewed for the job in
Riyadh, Saudi Arabia and later entered into an employment contract with the hospital through HCA. Mr.
Nelson's family was informed Royspec Purchasing Services, based in the US, was the designated agent
through which to contact Mr. Nelson in an emergency.

Mr Nelson began his new job in December 1983, which entailed monitoring “facilities, equipment,
utilities, and maintenance systems to insure the safety of patients, hospital staff, and others” (Saudi
Arabia v. Nelson). Shortly after employment began he discovered numerous safety violations and
defects throughout the hospital, of which he promptly informed his superiors and a Saudi government
commission of the infractions. He was asked to ignore the problems by the hospital, but he persisted.
On September 27, 1984, Mr Nelson was detained and subsequently tortured until signing a coerced
statement, of which was in Arabic, a language he did not understand. Two days later he was imprisoned
at Al Penitentiary without being charged of a crime. Mr Nelson's wife was informed of her husband's
whereabouts several days later but could not condition a release. On November 5, 1984, Mr. Nelson was
released from prison through the plea of US senator and left the country shortly thereafter through the
permission of the Saudi Government. Mr. Nelson's employment contract was shortly terminated
thereafter.

The plaintiff, Mr. Nelson, asserted the defendant, Saudi Arabia, was not immune to prosecution under
the FSIA, which enumerates exceptions of which any must exist in order to deny a sovereigns’ foreign
immunity. The list of exceptions refer to a State's conduct only. A State is denied sovereign foreign
immunity if the State's conduct is private not public, private not sovereign, commercial not non-
commercial or trade-related not political (Slomanson, 100). Specifically, the commercial activity
immunity exception was used by Mr. Nelson. The plaintiff asserted job recruitment, contract of
employment, and employment itself constituted the commercial activity that led to and associates the
wrongful injury claim with the Saudi Government's commercial activity. Therefore, the plaintiff claims
that the process of recruiting, hiring, and subsequent employment led to or indirectly are associated
with his tortious injuries.

ISSUE: Unless the action is based upon a commercial activity in the manner of a private player within the
market, are foreign states entitled to immunity from the jurisdiction of courts in the United States?
HELD: Yes. Unless the action is based upon a commercial activity in the manner of a private player
within the market, foreign states are entitled to immunity from the jurisdiction of courts in the United
States. Hence, the torture allegation which was levied against Saudi Arabia does not fall under the
purview of the definition of a commercial activity as contained in the Foreign Sovereign Immunities Act
of 1976.
 The Court of Appeals judgment was thereby reversed, thus restoring the trial courts dismissal based
upon a “lack of subject-matter jurisdiction”.

The court reasoned that the tortious acts of the defendant were not “based upon a commercial
activity”, therefore not in violation of the Foreign Sovereign Immunities Act of 1976. The defendant's
conduct, however heinous, could not be classified as being “based upon a commercial activity”. The
tortious conduct rather is a gross abuse of state police power, which is an act only performed by
sovereign states. Only States perform acts such as unlawful detention of private citizens, torture,
conduct foreign engagements and diplomatic relations. Private citizens cannot participate in acts of
State.

On the part of Nelson, his claim about not being warned of the peril attached to his job does not have
any merit because sovereign nations have no duty to warn of their propensity for tortuous conducts.
Since the action of the plaintiff is not in consonance with commercial activity as defined in the Act, it is
therefore outside the subject-matter jurisdiction of the federal courts. The prayer of Saudi Arabia's
dismissal was thereby granted.

A state is immune from the jurisdiction of foreign courts as to its sovereign or public acts but not as to
those that are private or commercial in character. Where a state exercises only those powers that can
also be exercised by private citizens, as distinct from those powers peculiar to sovereigns, such state is
said to be engaging in commercial activity under the restrictive theory. The Act unmistakable commands
to observe the distinction between the purpose of a conduct and its nature is recognized by the Court.
 TINOCO CLAIMS ARBITRATION (GREAT BRITAIN V. COSTA RICA)

Facts: The “Tinoco regime” came to power through a coup in Costa Rica in 1917. It lasted for two years.
During this time, the Tinoco regime was recognized as legitimate by some States, but not large powers
such as Great Britain (plaintiff). The Tinoco regime that had seized power in Costa Rica by coup was not
recognized by Great Britain and the United States. During its time in power, the Tinoco regime entered
into several contracts (including an oil concession) with the British government. When the regime fell in
1919, Great Britain brought suit against Costa Rica (defendant) to enforce the contracts and collect on
the Tinoco regime’s liabilities, the new government nullified all Tinoco's contracts including an oil
concession to a British company. The claim of Great Britain was that the contract could not be
repudiated because the Tinoco government was the only government in existence at the time the
contract was signed. This view was not shared by Costa Rica who claimed that Great Britain was
estopped from enforcing the contract by its non-recognition of the Tinoco regime. The matter was sent
for arbitration

Great Britain claimed that the former government of Costa Rica , the Tinoco regime, had granted oil
concessions to a British company that had to be honored by the present regime. The Tinoco regime had
seized power in Costa Rica by coup. Great Britain and the United States never recognized the Tinoco
regime. When the Tinoco regime fell, the restored government nullified all Tinoco contracts, including
an oil concession to a British company. Great Britain claimed that the Tinoco government was the only
government in existence at the time the contract was signed and its acts could not be repudiated. Costa
Rica claimed that Great Britain was estopped from enforcing the contract by its nonrecognition of the
Tinoco regime. The matter was sent for arbitration.

Issue: Does a government need to conform to a previous constitution if the government had established
itself and maintained a peaceful de facto administration and does non-recognition of the government by
other government destroy the de facto status of the government?
Does nonrecognition of a new government by other governments destroy the de facto status of the
government?

No. A government need not conform to a previous constitution if the government had established itself
and maintained a peaceful de facto administration and non-recognition of the government by other
government does not destroy the de facto status of the government. The non-recognition of the Tinoco
regime by Great Britain did not dispute the de facto existence of that regime. There is no estoppel since
the successor government had not been led by British non-recognition to change its position.

A government that establishes itself and maintains a peaceful de facto administration need not to
conform to previous constitution and nonrecognition of the govt. by other govt.’s does not destroy the
de facto status of the government.
 60/1. 2005 WORLD SUMMIT OUTCOME

The 2005 World Summit, held between 14 and 16 September 2005, was a follow-up summit meeting to
the United Nations' 2000 Millennium Summit, which had led to the Millennium Declaration of the
Millennium Development Goals (MDGs). Representatives (including nearly 200 leaders) of the then 191
member states met in New York City for what the United Nations described as "a once-in-a-generation
opportunity to take bold decisions in the areas of development, security, human rights and reform of
the United Nations."

The summit was billed as the "largest gathering of world leaders in history," and featured appearances
of numerous heads of state and heads of government. According to the organizers, about 170 leaders
were present. The majority of those present addressed the U. N. General Assembly (UNGA) and gave
speeches reflecting on the U. N.'s past successes and future challenges. All 191 of the then member
states gave an address in some form—if the head of state or government was not present, the nation's
foreign minister, vice president, or deputy prime minister usually spoke. The meetings were presided
over by the Prime Minister of Sweden, Göran Persson, since Swedish Jan Eliasson was President of the
60th UNGA. Negotiations for the World Summit Outcome Document had been under the watchful eye
of the President of the 59th UNGA, Mr. Jean Ping of Gabon.

The pre-summit negotiations were blown sharply off course by the appearance in early August at the U.
N. of United States Ambassador to the U. N. John Bolton, appointed as a recess appointment by U.S.
President George W. Bush. Bolton swiftly issued a list of new demands(including dropping the use of
the words "Millennium Development Goals"), which days before the summit had still not been settled.

As well as discussing progress on the Millennium Development Goals and re-iterating the world's
commitment to them, the summit was convened to address the possible reform of the United Nations;
much of this was eventually postponed to a later date. An exception was the endorsement of the
"responsibility to protect" (known by the acronyms RtoP and R2P), a formulation of the "right of
humanitarian intervention" developed by a U.N. commission and proposed by Kofi Annan as part of his
In Larger Freedom reform package. The "Responsibility to Protect" gives the world community the right
to intervene in the case of "national authorities manifestly failing to protect their populations from
genocide, war crimes, ethnic cleansing and crimes against humanity."

There was also broad agreement at the summit to set up a new Human Rights Council. During the
summit, the United Nations Convention Against Corruption received its thirtieth ratification, and as a
result entered into force in December 2005. The inaugural session of the Clinton Global Initiative,
organized by the family of Mr William J. Clinton (former 42nd President of the USA), was held in New
York City to coincide with the 2005 World Summit. This event attracted as many of the same world
leaders as the main summit. During his presidency, Mr Clinton has twice hosted more than 150 world
leaders during an UN summit, in 1995 and 2000.
 THE UNITED NATIONS GENERAL ASSEMBLY RESOLUTION 2625

The United Nations General Assembly Resolution 2625, "The Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States" was adopted by the General
Assembly on 24 October 1970, during a commemorative session to celebrate the twenty-fifth
anniversary of the United Nations. The Declaration worked out the most authoritative and
comprehensive formulation so far of the principle of self-determination.
According to this document "the principle of equal rights and self-determination of peoples enshrined in
the Charter of the United Nations" embraces the right of all peoples "freely to determine, without
external interference, their political status and to pursue their economic, social and cultural
development" as well as the duty of every State "to respect this right in accordance with the provisions
of the Charter". It further added that "the establishment of a sovereign and independent State, the free
association or integration with an independent State, or the emergence into any other political status
freely determined by a people constitute modes of implementing the right of self-determination", thus
stressing, as the critical issue, the methods of reaching the decision and not the result.

PREAMBLE

The General Assembly, Reaffirming in the terms of the Charter of the United Nations that the
maintenance of international peace and security and the development of friendly relations and
cooperation between nations are among the fundamental purposes of the United Nations,
Recalling that the peoples of the United Nations are determined to practise tolerance and live together
in peace with one another as good neighbours, Bearing in mind the importance of maintaining and
strengthening international peace founded upon freedom, equality, justice and respect for fundamental
human rights and of developing friendly relations among nations irrespective of their political, economic
and social systems or the levels of their development,
Bearing in mind also the paramount importance of the Charter of the United Nations in the promotion
of the rule of law among nations,

Considering that the faithful observance of the principles of international law concerning friendly
relations and cooperation among States and the fulfillment in good faith of the obligations assumed by
States, in accordance with the Charter, is of the greatest importance for the maintenance of
international peace and security and for the implementation of the other purposes of the United
Nations, Noting that the great political, economic and social changes and scientific progress which have
taken place in the world since the adoption of the Charter give increased importance to these principles
and to the need for their more effective application in the conduct of States wherever carried on,

Recalling the established principle that outer space, including the Moon and other celestial bodies, is not
subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any
other means, and mindful of the fact that consideration is being given in the United Nations to the
question of establishing other appropriate provisions similarly inspired,
Convinced that the strict observance by States of the obligation not to intervene in the affairs of any
other State is an essential condition to ensure that nations live together in peace with one another,
since the practice of any form of intervention not only violates the spirit and letter of the Charter, but
also leads to the creation of situations which threaten international peace and security, Recalling the
duty of States to refrain in their international relations from military, political, economic or any other
form of coercion aimed against the political independence or territorial integrity of any State,
Considering it essential that all States shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any State, or in any other manner
inconsistent with the purposes of the United Nations, Considering it equally essential that all States shall
settle their international disputes by peaceful means in accordance with the Charter, Reaffirming, in
accordance with the Charter, the basic importance of sovereign equality and stressing that the purposes
of the United Nations can be implemented only if States enjoy sovereign equality and comply fully with
the requirements of this principle in their international relations,

Convinced that the subjection of peoples to alien subjugation, domination and exploitation constitutes a
major obstacle to the promotion of international peace and security, Convinced that the principle of
equal rights and self-determination of peoples constitutes a significant contribution to contemporary
international law, and that its effective application is of paramount importance for the promotion of
friendly relations among States, based on respect for the principle of sovereign equality, Convinced in
consequence that any attempt aimed at the partial or total disruption of the national unity and
territorial integrity of a State or country or at its political independence is incompatible with the
purposes and principles of the Charter, Considering the provisions of the Charter as a whole and taking
into account the role of relevant resolutions adopted by the competent organs of the United Nations
relating to
the content of the principles,

Considering that the progressive development and codification of the following principles:
(a) The principle that States shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any State, or in any other manner
inconsistent with the purposes of the United Nations, (b) The principle that States shall settle their
international disputes by peaceful means in such a manner that international peace and security and
justice are not endangered, (c) The duty not to intervene in matters within the domestic jurisdiction of
any State, in accordance with the Charter, (d) The duty of States to cooperate with one another in
accordance with the Charter, (e) The principle of equal rights and self-determination of peoples, (f) The
principle of sovereign equality of States, (g) The principle that States shall fulfil in good faith the
obligations assumed by them in accordance with the Charter, so as to secure their more effective
application within the international community, would promote the realization of the purposes of the
United Nations, Having considered the principles of international law relating to friendly relations and
co-operation among States