Brief Fact Summary.

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

Synopsis of Rule of Law. Declaration made through unilateral acts may have the effect of
creating legal obligations.

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

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

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

Discussion. The unilateral statements made by French authorities were first relayed to the
government of Australia. There was no need for the statements to be directed to any particular
state for it to have legal effect. The general nature and characteristics of the statements alone
were relevant for evaluation of their legal implications.

NUCLEAR TESTS CASES: AUSTRALIA v FRANCE, NEW ZEALAND v FRANCE

JUDGMENT OF 20 DECEMBER 1974

INTERNATIONAL COURT OF JUSTICE

Facts:

France was a signatory to the Nuclear Test Ban Treaty and thus continued to conduct tests in the
South Pacific until 1973. The test conducted led to the filing of protests by Australia and New
Zealand.

By a letter of 9 May 1973, received in the Registry of the Court, the Ambassador of Australia to
the Netherlands transmitted to the Registrar 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.

The Application was at once communicated to the French Government and all other States
entitled to appear before the Court was notified of the Application. The French Government
stated that, it considered that the Court was manifestly not competent in the case, and that it
could not accept the Court's jurisdiction.
The Memorial of the Government of Australia was filed and was communicated to the French
Government. No Counter-Memorial was filed by the French Government.

In the course of the written proceedings, the following submissions were presented in the
Application:"The Government of Australia asks the Court to adjudge and declare that, for the
above-mentioned reasons or any of them or for any other reason that the Court deems to be
relevant, the carrying out of further atmospheric nuclear weapon tests in the South Pacific Ocean
is not consistent with applicable rules of international law. And to Order that the French
Republic shall not carry out any further such tests."

It is asserted by Australia and New Zealand that the French atmospheric tests have caused some
fall-out of this kind to be deposited on within their territory. France has maintained in particular
that the radio-active matter produced by its tests has been so infinitely small that it may be
regarded as negligible, and that such fall-out does not constitute a danger to the health of the
people.

Issue:

Whether or not a dispute still exist between New Zealand, Australia and France that the Court
can adjudicate.

Held:

The Court finds that France made public its intention to cease the conduct of atmospheric nuclear
tests following the conclusion of the 1974 series of tests. It is well recognized that declarations
made by way of unilateral acts, concerning legal or factual situations, may have the effect
of creating legal obligations. Declarations of this kind may be, and often are, very specific.
When it is the intention of the State making the declaration that it should become bound
according to its terms, that intention confers on the declaration the character of a legal
undertaking, the State being thenceforth legally required to follow a course of conduct
consistent with the declaration. An undertaking of this kind, if given publicly, and with an
intent to be bound, even though not made within the context of international negotiations,
is binding. In these circumstances, no subsequent acceptance of the declaration, nor even any
reply or reaction from other States, is required for the declaration to take effect, since such a
requirement would be inconsistent with the strictly unilateral nature of the juridical act by which
the pronouncement by the state was made.

As was observed above, to have legal effect, there was no need for these statements to be
addressed to a particular State, nor was acceptance by any other State required. The objects of
these statements are clear and they were addressed to the international community as a whole,
and the Court holds that they constitute an undertaking possessing legal effect.

The Court, as a court of law, is called upon to resolve existing disputes between States. Thus the
existence of a dispute is the primary condition for the Court to exercise its judicial function; it is
not sufficient for one party to assert that there is a dispute, since "whether there exists an
international dispute is a matter for objective determination" by the Court.

The dispute brought before it must therefore continue to exist at the time when the Court makes
its decision. It must not fail to take cognizance of a situation in which the dispute has
disappeared because the object of the claim has been achieved by other means. If the declarations
of France concerning the effective cessation of the nuclear tests have the significance described
by the Court that is to say if they have caused the dispute to disappear, all the necessary
consequences must be drawn from this finding.

Thus the Court concludes that, the dispute having disappeared, the claim advanced by Australia
and New Zealand no longer has any object. The Court therefore sees no reason to allow the
continuance of proceedings which it knows are bound to be fruitless. While judicial settlement
may provide a path to international harmony in circumstances of conflict, it is none the less true
that the needless continuance of litigation is an obstacle to such harmony.

Brief Fact Summary. The argument of the fishermen whose vessels was seized by the U.S (P)
officials was that international law exempted coastal fishermen from capture as prizes of war.

Synopsis of Rule of Law. The argument of the fishermen whose vessels was seized by the U.S
(P) officials was that international law exempted coastal fishermen from capture as prizes of war.

Facts. This appeal of a district court decree, which condemned two fishing vessels and their
cargoes as prizes of war, was brought by the owners (D) of two separate fishing vessels. Each of
the vessel running in and out of Havana and sailing under the Spanish flag was a fishing smack
which regularly engaged in fishing on the coast of Cuba. Inside the vessels were fresh fish which
the crew had caught.
The owners of the vessels were not aware of the existence of a war until they were stopped by
U.S. (P) squadron. No incriminating material like arms were found on the fishermen and they did
not make any attempt to run the blockade after learning of its existence not did they resist their
arrest. When the owners (D) appealed, they argued that both customary international law and
writings of leading international scholars recognized an exemption from seizure at wartime of
coastal fishing vessels.

Issue. Are coastal fishing vessels with their cargoes and crews excluded from prizes of war?

Held. (Gray, J.). Yes. Coastal fishing vessels with their cargoes and crews are excluded from
prizes of war. The doctrine that exempts coastal fishermen with their vessels and crews from
capture as prizes of war has been known by the U.S. (P) from the time of the War of
Independence and has been recognized explicitly by the French and British governments. It is an
established rule of international law that coastal fishing vessels with their equipment and
supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching
and bringing in fish are exempt from capture as prizes of war. Reversed.

Discussion. Chief Justice Fuller who had a dissenting opinion which was not published in this
casebook argued that the captured vessels were of such a size and range as to not fall within the
exemption. He further argued that the exemption in any case had not become a customary rule of
international law, but was only an act of grace that had not been authorized by the President

he Paquete Habana – Case Brief 175 U.S. 677

Facts: Two fishing vessels that were fishing out of Havana, Cuba, sailed under a Spanish flag
were fishing off the Cuba coast. They were owned a Spanish subject that was born in Cuba and
living in Havana. The vessels were commanded by a subject of Spain, also residing in Havana.
Their cargo consisted of fresh fish, caught by their crew. The fish were kept alive to be sold
alive. Until stopped by the blockading squadron they had no knowledge of the existence of the
war or of any blockade. She had no arms or ammunition on board, and made no attempt to run
the blockade after she knew of its existence, nor any resistance at the time of the capture.
Procedural History: DC for the Southern District of Florida condemned the two fishing vessels
and their cargos as prizes of war.

Issues: Whether a court may look to established rules of other nations when their own nation
lacks any treaty, legislation, proclamation, or instruction that is on point for a particular matter?
Analysis: By an ancient usage among civilized nations, beginning centuries ago, and gradually
ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching
and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from
capture as prize of war.

Discussion: In 1403 and 1406 Henry IV ordered that fisherman of foreign nations become under
his special protection so that the fisherman in the course of their duty would not be hindered,
interfered, or molested by any of his subjects. The doctrine which exempts coast fishermen, with
their vessels and cargoes, from capture as prize of war, has been familiar to the United States
from the time of the War of Independence. On June 5, 1779, Louis XVI., our ally in that war,
addressed a letter to his admiral, informing him that the wish he had always had of alleviating, as
far as he could, the hardships of war, had directed his attention to that class of his subjects which
devoted itself to the trade of fishing, and had no other means of livelihood; that he had thought
that the example which he should give to his enemies, would determine them to allow to
fishermen the same facilities which he should consent to grant; and that he had therefore given
orders to the commanders of all his ships not to disturb English fishermen, nor to arrest their
vessels laden with fresh fish, provided they had no offensive arms, and were not proved to have
made any signals creating a suspicion of intelligence with the enemy; and the admiral was
directed to communicate the King’s intentions to all officers under his control.
Among the standing orders made by Sir James Marriott, Judge of the English High Court of
Admiralty, was one of April 11, 1780, by which it was ‘ordered that all causes of prize of fishing
boats or vessels taken from the enemy may be consolidated in one monition, and one sentence or
interlocutory, if under 50 tons burthen, and not more than 6 in number.’ But by the statements of
his successor, and of both French and English writers, it apears that England, as well as France,
during the American Revolutionary War, abstained from interfering with the coast fisheries.
In the treaty of 1785 between the United States and Prussia, provided that, if war should arise
between the contracting parties, ‘all women and children, scholars of every faculty, cultivators of
the earth, artisans, manufacturers, and fishermen, unarmed and inhabiting unfortified towns,
villages, or places, and in general all others whose occupations are for the common subsistence
and benefit of mankind, shall be allowed to continue their respective employments, and shall not
be molested in their persons, nor shall their houses or goods be burnt or otherwise destroyed, nor
their fields wasted by the armed force of the enemy, into whose power, by the events of war,
they may happen to fall; but if anything is necessary to be taken from them for the use of such
armed force, the same shall be paid for at a reasonable price.’ Here was the clearest exemption
from hostile molestation or seizure of the persons, occupations, houses, and goods of unarmed
fishermen inhabiting unfortified places.
Wheaton’s International Laws, says: ‘In many treaties and decrees, fishermen catching fish as an
article of food are added to the class of persons whose occupation is not to be disturbed in war.’
The English government, soon afterwards, more than once unqualifiedly prohibited the
molestation of fishing vessels employed in catching and bringing to market fresh fish. On May
23, 1806, it was ‘ordered in council that all fishing vessels under Prussian and other colors, and
engaged for the purpose of catching fish and conveying them fresh to market, with their crews,
cargoes, and stores, shall not be molested on their fishing voyages and bringing the same to
market.
In the war with Mexico, in 1846, the United States recognized the exemption of coast fishing
boats from capture. It appears that Commodore Conner, commanding the Home Squadron
blockading the east coast of Mexico, on May 14, 1846, wrote a letter to Mr. Bancroft, the
Secretary of the Navy, inclosing a copy of the commodore’s ‘instructions to the commanders of
the vessels of the Home Squadron, showing the principles to be observed in the blockade of the
Mexican ports,’ one of which was that ‘Mexican boats engaged in fishing on any part of the
coast will be allowed to pursue their labors unmolested;’ and that on June 10, 1846, those
instructions were approved by the Navy Department.
In the treaty of peace between the United States and Mexico, in 1848, were inserted the very
words of the earlier treaties with Prussia, already quoted, forbidding the hostile molestation or
seizure in time of war of the persons, occupations, houses, or goods of fishermen.
France in the Crimean war in 1854, and in her wars with Italy in 1859 and with Germany in
1870, by general orders, forbade her cruisers to trouble the coast fisheries, or to seize any vessel
or boat engaged therein, unless naval or military operations should make it necessary.
Since the English orders in council of 1806 and 1810, before quoted, in favor of fishing vessels
employed in catching and bringing to market fresh fish, no instance has been found in which the
exemption from capture of private coast fishing vessels honestly pursuing their peaceful industry
has been denied by England or by any other nation. And the Empire of Japan by an ordinance
promulgated at the beginning of its war with China in August, 1894, established prize courts, and
ordained that ‘the following enemy’s vessels are exempt from detention,’ including in the
exemption ‘boats engaged in coast fisheries,’ as well as ‘ships engaged exclusively on a voyage
of scientific discovery, philanthrophy, or religious mission.’
Wheaton observes: ‘Without wishing to exaggerate the importance of these writers, or to
substitute, in any case, their authority for the principles of reason, it may be affirmed that they
are generally impartial in their judgment. They are witnesses of the sentiments and usages of
civilized nations, and the weight of their testimony increases every time that their authority is
invoked by statesmen, and every year that passes without the rules laid down in their works
being impugned by the avowal of contrary principles.’
Chancellor Kent says: ‘In the absence of higher and more authoritative sanctions, the ordinances
of foreign states, the opinions of eminent statesmen, and the writings of distinguished jurists, are
regarded as of great consideration on questions not settled by conventional law. In cases where
the principal jurists agree, the presumption will be very great in favor of the solidity of their
maxims; and no civilized nation that does not arrogantly set all ordinary law and justice at
defiance will venture to disregard the uniform sense of the established writers on international
law.’
This review of the precedents and authorities on the subject appears to us abundantly to
demonstrate that at the present day, by the general consent of the civilized nations of the world,
and independently of any express treaty or other public act, it is an established rule of
international law, founded on considerations of humanity to a poor and industrious order of men,
and of the mutual convenience of belligerent states, that coast fishing vessels, with their
implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful
calling of catching and bringing in fresh fish, are exempt from capture as prize of war.
This rule of international law is one which prize courts administering the law of nations are
bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public
act of their own government in relation to the matter.
Holding: Yes
Judgment: Ordered, that the decree of the District Court be reversed, and the proceeds of the sale
of the vessel, together with the proceeds of any sale of her cargo, be restored to the claimant,
with damages and costs.
Rule: A court may look to established rules of other nations when their own nation lacks any
treaty, legislation, proclamation, or instruction that is on point for a particular matter.
Where there is no treaty and no controlling executive or legislative act or judicial decision, resort
must be had to the customs and usages of civilized nations, and, as evidence of these, to the
works of jurists and commentators who by years of labor, research, and experience have made
themselves peculiarly well acquainted with the subjects of which they treat.

Asylum Case: Columbia v Peru 1950 ICJ Rep. 266 Case Summary.
Facts Victor Raul Haya de la Torre was a Peruvian national. In Oct 3rd, 1948 one military
rebellion broke out in Peru which is organized and directed by the American People’s
Revolutionary Alliance led by Haya de la Torre. The rebellion was unsuccessful. The Peruvian
Government issued a warrant for his arrest on criminal charges related to this political uprising.
He fled to the Columbian embassy in Lima seeking for asylum from them. Columbia the
requested permission from Peru for Haya de la Torre’s safe passage from the Columbian
embassy, through Peru, goes to Columbia. Peru refused to give such permission. Columbia then
brought this suit against Peru in the International Court of Justice, based on the agreement made
by both named Act of Lima.

These are the submissions made by the two parties: 1) The Columbian had pleaded for the court
to declare that Columbia had properly granted asylum based on 2 submissions:- a. They are
competent to qualify the offence for the purpose of the said asylum. b. That Peru is bound to give
the guarantees necessary for the departure of the Haya de la Torre, from the country, with due
regard to the inviolability of his person.

2) Counter-claim by Peru is that for the court to declare that the grant of asylum made by the
Columbian Ambassador to Haya de la Torre was made in violation of the Convention on
Asylum. Argument Plaintiff (Columbian) arguments based on the Convention in force which are
the Bolivarian Agreement 1911 on Extradition, the Havana Convention 1928 on Asylum, the
Montevideo Convention 1933 on Political Asylum and American International Law.

The Defendant (Peru) counter-claim relied on the rules of Havana Convention first, Haya de la
Torre was accused, not a political offense but of a common crime and second, because the
urgency which was required under the Havana Convention in order to justify asylum was absent
in that case.

Issue 1. Whether or not Columbia is competent in granting asylum to qualify the offence as
based on conventions, which in force between both countries, and in general from American
international law.

2. Whether or not Peru is bound to give the guarantees necessary for the departure of the
refugees from the country, with due regard to the inviolability of his person?

Decision 1) Columbia was not competent to qualify the nature of the offence by a unilateral and
definitive decision binding on Peru.

2) Columbia was not entitled to claim that the Peru was bound to gives guarantees necessary for
the departure of Haya de la Torre, with due regard to the inviolability of his person.

3) Peru counter-claim that Haya de la Torre was an accused of a common crime was rejected.
Therefore it was not in accordance with Article I, Paragraph I of the Havana convention

4) Peru Counter-claim that the grant of asylum by the Columbian government to Haya de la
Torre Torre was made in violation of Article 2, Paragraph 2 of the Havana Convention was
approved by the court.

Ratio Decidendi 1) The court reject the Columbian argument based on Bolivarian Agreement on
the reason that the principle of International Law did not recognize any rule of unilateral and
definitive qualification by the state granting diplomatic asylum. On the other hand, the
Bolivarian Agreement laid down rules on extradition and it was not possible to deduce from
them conclusions concerning diplomatic asylum as it was different in the meaning. The court
also rejected the Havana Convention invoke by the Columbian as the convention did not
recognize the right of unilateral qualification. And the third convention, Convention of
Montevideo, had not been ratified by Peru and could not be invoked against it. As for the
American international law, Columbia had failed to prove that it had constant and uniform
practice of unilateral qualification as a right of the State of refuge and an obligation upon the
territorial state. The fact submitted to the court disclosed too much contradiction and fluctuation,
shows that therein a usage peculiar to Latin America and accepted as law.
2) The court also rejected the Columbian claim based on Havana Convention that the Peru was
bound to gives guarantees necessary for the departure of Haya de la Torre, on the reason that the
convention only applicable if the territorial State demanded the departure of the refugee from its
territory. It was only after such demand that the diplomatic Agent who granted asylum could
require safe-conduct.

3) Peru counter-claim that Haya de la Torre was an accused of a common crime was rejected on
the reason that the refugee was charged for military rebellion, which was not a common crime as
needed under the Havana Convention.

4) The court came into conclusion on Peru Counter-claim that the grant of asylum by the
Columbian government to Haya de la Torre Torre was made in violation of Article 2, Paragraph
2 of the Havana Convention was on the reason that the absent of element of urgency needed to
justify the asylum, in order to protect the person from danger. In this case the danger that only
faced by Haya de la Torre is legal preceding that will be imposed on him, not a deprivation of his
right. The Havana Convention according to the court was not intended to protect a citizen who
had plotted against the institutions of his country from regular legal proceedings. Asylum could
only intervene against the action of justice in cases where arbitrary action was substituted for the
rule of law.

Rationale 1) Before a convention can be accepted to be used as the law under Article 38 of
Statute of International Court of Justice, it must be ratified by the contesting state. – This has
been shown by the reluctance of the court to used certain provision in the convention as had not
been ratified by the party country. – Ie: see rules on Montevideo Convention.

2) The principle of International Law that are not recognizing the rules of unilateral treaty.

3) This decision also shows us that in order for the custom to be international custom it must be
a general practice.

Right of Passage over Indian Territory (Merits)Court of Justice, I.C.J. Reports, 1960, p. 6
21. Portugal claimed before the International Court that she had a right of passage through
intervening Indian territory to the extent necessary for the exercise of her sovereignty over two
small enclaves and that India had refused to recognize the obligations imposed by this right.
22. In support of her claim Portugal relied in part on certain agreements concluded in the 18th
century between Portugal and the local Maratha ruler. Although the Court found that the
agreements concerned amounted only to a revenue grant, and not to a grant of sovereignty
together with a right of passage, it appears to have assumed that any such rights granted would
have been binding on successor States.16
The Court found, however, that:
” . . . the situation underwent a change with the advent of the British as sovereign of that part of
the country in place of the Marathas. The British found the Portuguese in occupation of the
villages and exercising full and exclusive administrative authority over them. They accepted the
situation as they found it and left the Portuguese in occupation of and in exercise of exclusive
authority over, the villages.
The Portuguese held themselves out as sovereign over the villages. The British did not, as
successors of the Marathas, themselves claim sovereignty, nor did they accord express
recognition of Portuguese sovereignty, over them. The exclusive authority of the Portuguese over
the villages was never brought in question. Thus Portuguese sovereignty over the villages was
recognized by the British in fact and by implication and-was subsequently recognized by India.
As a consequence the villages comprised in the Maratha grant acquired the character of
Portuguese enclaves within Indian territory.”17
23. Concerning the right of passage, the Court reached the conclusion that:
” . . . with regard to private persons, civil officials and goods in general there existed during the
British and post-British periods a constant and uniform practice allowing free passage between
Daman and the enclaves. This practice having continued over a period extending beyond a
century and a quarter unaffected by the change of regime in respect of the intervening territory
which occurred when India became independent, the Court is, in view of all the circumstances of
the case, satisfied that that practice was accepted as law by the Parties and has given rise to a
right and a correlative obligation/’18
In the case of armed forces and armed police, the Court found that their passage had been
dependent on the discretionary power of the territorial sovereign and that no right of passage as
such existed in favour of Portugal.
“The course of dealings established between the Portuguese and the British authorities with
respect to the passage of these categories excludes the existence of any such right. The practice
that was established shows that, with regard to these categories, it was well understood that
passage could take place only by permission of the British authorities. This
situation continued during the post-British period.”19
24. The Court held that India had not acted contrary to its obligations regarding the passage of
private persons, since such passage was subject at all times to India’s power of regulation and
control. the Permanent Court of International Justice held that obligations in the nature of real
rights had been created, which attached to the District of St. Gingolph and remained binding
upon the successor State after sovereignty had passed from Sardinia to France.

Mijares v. Ranada
Facts:
Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom suffered human rights
violations during the Marcos era, obtained a Final Judgment in their favor against the Estate of
the late Ferdinand Marcos amounting to roughly $1.9B in compensatory and exemplary damages
for tortuous violations of international law in the US District Court of Hawaii. This Final
Judgment was affirmed by the US Court of Appeals.
As a consequence, Petitioners filed a Complaint with the RTC Makati for the enforcement of the
Final Judgment, paying P410 as docket and filing fees based on Rule 141, §7(b) where the value
of the subject matter is incapable of pecuniary estimation. The Estate of Marcos however, filed a
MTD alleging the non-payment of the correct filing fees. RTC Makati dismissed the Complaint
stating that the subject matter was capable of pecuniary estimation as it involved a judgment
rendered by a foreign court ordering the payment of a definite sum of money allowing for the
easy determination of the value of the foreign judgment. As such, the proper filing fee was
P472M, which Petitioners had not paid.
Issue: Whether or not the amount paid by the Petitioners is the proper filing fee.
Held: Yes, but on a different basis—amount merely corresponds to the same amount required for
“other actions not involving property”. RTC Makati erred in concluding that the filing fee should
be computed on the basis of the total sum claimed or the stated value of the property in litigation.
The Petitioner’s Complaint was lodged against the Estate of Marcos but it is clearly based on a
judgment, the Final Judgment of the US District Court. However, the Petitioners err in stating
that the Final Judgment is incapable of pecuniary estimation because it is so capable. On this
point, Petitioners state that this might lead to an instance wherein a first level court (MTC,
MeTC, etc.) would have jurisdiction to enforce a foreign judgment. Under the B.P.129, such
courts are not vested with such jurisdiction. §33 of B.P.129 refers to instances wherein the cause
of action or subject matter pertains to an assertion of rights over property or a sum of money. But
here, the subject matter is the foreign judgment itself. §16 of B.P.129 reveals that the complaint
for enforcement of judgment even if capable of pecuniary estimation would fall under the
jurisdiction of the RTCs. Thus, the Complaint to enforce the US District Court judgment is one
capable of pecuniary estimations but at the same time, it is also an action based on judgment
against an estate, thus placing it beyond the ambit of §7(a) of Rule 141. What governs the proper
computation of the filing fees over Complaints for the enforcement of foreign judgments is
§7(b)(3), involving “other actions not involving property.”