I.

Nature and Sources

of International Law
II. Subjects of
International Law
Submitted By:

Ablola, Thea Samantha

Hermoso, Enna May
Malabanan, Nadine
Pangandaman, Isnihayah
Uylengco, Angelica Leila

2AA
 I. NATURE AND SOURCES OF INTERNATIONAL LAW
SHIGENORI KURODA vs. Major General RAFAEL JALANDONI, Brigadier General
CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO
BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS,
MELVILLE S. HUSSEY and ROBERT PORT
G.R. No. L-2662 83 Phil 171 March 26, 1949
Facts:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and
Commanding General of the Japanese Imperial Forces in The Philippines during Second World
War. He was charged before a military commission convened by the Chief of Staff of the Armed
forces of the Philippines 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.” The said military commission was empaneled under the authority of Executive
Order 68 of the President of the Philippines.
Kuroda challenged the validity of Executive Order 68. His arguments, were as follows:
(1) Executive Order 68 is illegal on the ground that it violates not only the provisions of
our constitutional law but also our local laws.
(2) Military Commission has no Jurisdiction to try him for acts committed in violation of
the Hague Convention and the Geneva Convention because the Philippines is not a
signatory to the first and signed the second only in 1947 and, therefore, he is charged with
“crime” not based on law, national or international
(3) Hussey and Port have no personality as prosecutors in this case because they are not
qualified to practice law in Philippines in accordance with our Rules of court and the
appointment of said attorneys as prosecutors is violative of our national sovereignty.
Issue/s:
Whether or not Executive Order 68 had violated the provisions of our constitutional law
Ruling/s:
No. Executive Order 68 has not violated the provision of our constitutional law. The
tribunal has jurisdiction to try Kuroda. This executive order is in accordance with Article 2 Sec 3,
of Constitution. It is in accordance with generally accepted principles of international law
including the Hague Convention and Geneva Convention, and other international jurisprudence
established by the UN, including the principle that all persons (military or civilian) guilty of plan,
preparing, waging a war of aggression and other offenses in violation of laws and customs of war.
 The Philippines may not be a signatory to the 2 conventions at that time but the rules and
regulations of both are wholly based on the generally accepted principles of international law.
They were accepted even by the 2 belligerent nations (US and Japan).
 CO KIM CHAM vs. EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of
First Instance of Manila
G.R. No. L-5, September 17, 1945
Facts:
The petitioner Co Kim Cham filed for a petition for mandamus in which he prays that the
respondent judge of the trial court be ordered to continue the proceedings of a civil case in the said
court, which were initiated during the Japanese occupation.
The respondent refused to take cognizance of the said case. It asserted that the proclamation
issued by General MacArthur 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” had the effect of invalidating and
nullifying all judicial proceedings and judgments of the court of the Philippines during the
Japanese military occupation. Respondent also stated that the lower courts have no jurisdiction to
take cognizance of and continue judicial proceedings pending in the courts of the defunct Republic
of the Philippines in the absence of an enabling law granting such authority. Respondent,
additionally contended that the government established during the Japanese occupation were no
de facto government.
Issue:
Whether or not judicial acts and proceedings of the court made during the Japanese
occupation were valid and remained valid even after the liberation or reoccupation of the
Philippines by the United States and Filipino forces.
Ruling:
YES. The judicial acts and proceedings of the court were good and valid.
The Philippine Executive Commission and the Republic of the Philippines under the
Japanese occupation may be considered de facto governments, supported by the military force and
deriving their authority from the laws of war. The doctrine upon this subject is thus summed up
by Halleck, in his work on International Law (Vol. 2, p. 444):
“The right of one belligerent to occupy and govern the territory of the enemy while in its
military possession, is one of the incidents of war, and flows directly from the right to
conquer. We, therefore, do not look to the Constitution or political institutions of the
conqueror, for authority to establish a government for the territory of the enemy in his
possession, during its military occupation, nor for the rules by which the powers of such
government are regulated and limited. Such authority and such rules are derived directly
from the laws war, as established by the usage of the world, and confirmed by the writings
of publicists and decisions of courts — in fine, from the law of nations. . . . The municipal
laws of a conquered territory, or the laws which regulate private rights, continue in force
during military occupation, excepts so far as they are suspended or changed by the acts of
 conqueror. . . . He, nevertheless, has all the powers of a de facto government, and can at
his pleasure either change the existing laws or make new ones.”
In this case, 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 court of justice of those
governments, which are not of a political complexion, were good and valid. Those not only judicial
but also legislative acts of de facto government, which are not of a political complexion, 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.
 MEJOFF vs. DIRECTOR OF PRISONS
90 Phil 70, September 26, 1951

Facts:

Boris Mejoff was a Russian who as captured by the US Army Counter Intelligence Corps
because he was purportedly acting as a spy for the Japanese. He was handed over to the Philippine
Commonwealth Government for the appropriate disposition. He was arrested on March 18, 1948
as a Japanese spy, by U. S. Army Counter Intelligence Corps. and later there was an order for his
release. But on April 5, 1948, the Board of Commissioners of Immigration declared that Mejoff
had entered the Philippines illegally in 1944 and ordered that he be deported on the first available
transportation to Russia.

He was transferred to Cebu Provincial Jail and then Bilibid Prison at Muntinlupa on
October, 1948. He then filed a petition for writ of habeas corpus on the basis that too long a
detention may justify the issuance of a writ of habeas corpus - denied

Over two years having elapsed since the decision aforesaid was promulgated, the
Government has not found way and means of removing the petitioner out of the country, and none
are in sight, although it should be said in justice to the deportation authorities, it was through no
fault of theirs that no ship or country would take the petitioner. This is his 2nd petition for writ of
habeas corpus

Issue:

Whether or not Mejoff should be released from prison awaiting his deportation

Ruling:

The Supreme Court held that Mejoff should be released from custody and to be instituted
under reasonable surveillance of the immigration in order to make sure that he intends to keep
peace and be available when the Government is set to finally deport him. Under the Doctrine of
Incorporation, the Philippine adopts the generally accepted principles of international law, forming
it as part of the law of the land, without needing any machinery to convert it to domestic law.
Moreover, the Philippines is a member of the United Nations in its Resolution entitled “Universal
Declaration of Human Rights” in proclaiming that life and liberty and all other fundamental rights
shall be applied to all human beings. The argument or the stand that Mejoff is a threat to the
security of the country is no longer apparent since the Japan is no longer at war with the United
States of America or the Philippines.

Writ will issue commanding the respondents to release the petitioner from custody upon
these terms: The petitioner shall be placed under the surveillance of the immigration authorities or
their agents in such form and manner as may be deemed adequate to insure that he keep peace and
be available when the Government is ready to deport him. The surveillance shall be reasonable
and the question of reasonableness shall be submitted to this Court or to the Court of First Instance
of Manila for decision in case of abuse. He shall also put up a bond for the above purpose in the
amount of P5,000 with sufficient surety or sureties, which bond the Commissioner of Immigration
is authorized to exact by section 40 of Commonwealth Act No. 613.

Aliens illegally staying in the Philippines have no right of asylum therein even if they are
"stateless," which the petitioner claims to be. 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.

Imprisonment to protect society from predicted but unconsummated offenses is so

unprecedented in this country and so fraught with danger of excesses and injustice that I am loath
to resort it, even as a discretionary judicial technique to supplement conviction of such offenses as
those of which defendants stand convicted.

If that case is not comparable with ours on the issues presented, its underlying principle is
of universal application. As already noted, not only are there no charges pending against the
petitioner, but the prospects of bringing any against him are slim and remote.
 Baer v. Tizon
57 SCRA 1
Facts:
Petitioner Donald Baer, then Commander of the United States Naval Base, Subic Bay,
Olongapo, Zambales, seeking to nullify the orders of respondent Judge 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.
Respondent Edgardo Gener, as plaintiff, filed a complaint for injunction with the Court of
First Instance of Bataan against petitioner, Donald Baer, Commander of the United States Naval
Base in Olongapo. He alleged that he was engaged in the business of logging in an area situated in
Bataan and that the American Naval Base authorities stopped his logging operations. He prayed
for a writ of preliminary injunction restraining petitioner from interfering his logging
operations. A restraining order was issued by respondent Judge. Petitioner contested the
jurisdiction of respondent Judge on the ground that the suit was one against a foreign sovereign
without its consent.
The petitioner then filed a motion to dismiss. It was therein pointed out that he is the head
of an agency or instrumentality of the United States of America, with the subject matter of the
action being official acts done by him for and in behalf of the United States of America. It was
added that in directing the cessation of logging operations by respondent Gener within the Naval
Base, petitioner was entirely within the scope of his authority and official duty, the maintenance
of the security of the Naval Base and of the installations therein being the first concern and most
important duty of the Commander of the Base.
Respondent Judge issued an order granting respondent Gener's application for the issuance
of a writ of preliminary injunction and denying petitioner's motion to dismiss the opposition to the
application for a writ of preliminary injunction. A motion for reconsideration having proved futile,
this petition for certiorari was filed with this Court.
Issues:
Whether or not the doctrine of immunity from suit without consent is applicable.
Ruling:
The invocation of the doctrine of immunity from suit of a foreign state without its consent
is appropriate. What was sought by private respondent and what was granted by respondent Judge
amounted to an interference with the performance of the duties of petitioner in the base area in
accordance with the powers possessed by him under the Philippine-American Military Bases
Agreement.
This point was made clear in these words: "Assuming, for purposes of argument, that the
Philippine Government, through the Bureau of Forestry, possesses the 'authority to issue a Timber
License... to cut logs' inside a military base, the Bases Agreement subjects the exercise of rights
under a timber license issued by the Philippine Government to the exercise by the United States
of its rights, power and authority of control within the bases; and the findings of the Mutual
Defense Board, an agency of both the Philippine and United States Governments, that continued
logging operation by Mr. Gener within the boundaries of the U.S. Naval Base would not be
consistent with the security and operation of the Base.
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.” He insuperable obstacle to the jurisdiction of respondent
Judge is that a foreign sovereign without its consent is hauled into court in connection with acts
performed by it pursuant to... treaty provisions and thus impressed with a governmental character.
 TAÑADA vs. ANGARA
G.R. No. 118295, May 2, 1997
Facts:
This is a case petition by Sen. Wigberto Tanada, together with other lawmakers, taxpayers,
and various NGO’s to nullify the Philippine ratification of the World Trade Organization (WTO)
Agreement.
Petitioners contended that the WTO Agreement will be detrimental to the growth of our
National Economy and against to the “Filipino First” policy. The WTO opens access to foreign
markets, especially its major trading partners, through the reduction of tariffs on its exports,
particularly agricultural and industrial products. Thus, it provides new opportunities for the service
sector cost and uncertainty associated with exporting and more investment in the country. These
are the predicted benefits as reflected in the agreement and as viewed by the signatory Senators, a
“free market” espoused by WTO.
Petitioners also asserted that it is in conflict with the provisions of our constitution, since
the said Agreement is an assault on the sovereign powers of the Philippines because it meant that
Congress could not pass legislation that would be good for national interest and general welfare if
such legislation would not conform to the WTO Agreement.
Issue:
Whether or not the WTO Agreement is constitutional.
Ruling:
YES. The Supreme Court ruled the Resolution No. 97 is constitutional.
While the Constitution mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the rest of the
world on the bases of equality and reciprocity and limits protection of Filipino interests only
against foreign competition and trade practices that are unfair. In other words, the Constitution did
not intend to pursue an isolationalist policy. Furthermore, the constitutional policy of a “self-reliant
and independent national economy” does not necessarily rule out the entry of foreign investments,
goods and services. It contemplates neither “economic seclusion” nor “mendicancy in the
international community.”
The Senate, after deliberation and voting, gave its consent to the WTO Agreement thereby
making it “a part of the law of the land”. The Supreme Court gave due respect to an equal
department in government. It presumes its actions as regular and done in good faith unless there is
convincing proof and persuasive agreements to the contrary. As a result, the ratification of the
WTO Agreement limits or restricts the absoluteness of sovereignty. A treaty engagement is not a
mere obligation but creates a legally binding obligation on the parties. A state which has contracted
valid international obligations is bound to make its legislations such modifications as may be
necessary to ensure the fulfillment of the obligations undertaken.
 The 1987 Constitution does not prohibit our country from participating in worldwide trade
liberalization and economic globalization and from integrating into a global economy that is
liberalized, deregulated and privatized. While the Constitution indeed mandates a bias in favor of
Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business
exchange with the rest of the world on the bases of equality and reciprocity and limits protection
of Filipino enterprises only against foreign competition and trade practices that are unfair. In other
words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of the Philippine economy. While the
Constitution does not encourage the unlimited entry of foreign goods, services and investments
into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition that is unfair.
The constitutional policy of a “self-reliant and independent national economy” does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates neither
“economic seclusion” nor “mendicancy in the international community.” As explained by
Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly aware
qof overdependence on external assistance for even its most basic needs. It does not mean
autarky or economic seclusion; rather, it means avoiding mendicancy in the international
community. Independence refers to the freedom from undue foreign control of the national
economy, especially in such strategic industries as in the development of natural resources
and public utilities.
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.
It is true, as alleged by petitioners, that broad constitutional principles require the State to
develop an independent national economy effectively controlled by Filipinos; and to protect and/or
prefer Filipino labor, products, domestic materials and locally produced goods. But it is equally
true that such principles — while serving as judicial and legislative guides — are not in themselves
sources of causes of action. Moreover, there are other equally fundamental constitutional
principles relied upon by the Senate which mandate the pursuit of a “trade policy that serves the
general welfare and utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity” and the promotion of industries “which are competitive in both domestic and foreign
markets,” thereby justifying its acceptance of said treaty. So too, the alleged impairment of
sovereignty in the exercise of legislative and judicial powers is balanced by the adoption of the
generally accepted principles of international law as part of the law of the land and the adherence
of the Constitution to the policy of cooperation and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its
consent to the WTO Agreement thereby making it “a part of the law of the land” is a legitimate
exercise of its sovereign duty and power. We find no “patent and gross” arbitrariness or despotism
“by reason of passion or personal hostility” in such exercise. It is not impossible to surmise that
this Court, or at least some of its members, may even agree with petitioners that it is more
advantageous to the national interest to strike down Senate Resolution No. 97. But that is not a
legal reason to attribute grave abuse of discretion to the Senate and to nullify its decision. To do
so would constitute grave abuse in the exercise of our own judicial power and duty.
Ineludibly, what the Senate did was a valid exercise of its authority. As to whether such exercise
was wise, beneficial or viable is outside the realm of judicial inquiry and review. That is a matter
between the elected policy makers and the people. As to whether the nation should join the
worldwide march toward trade liberalization and economic globalization is a matter that our people
should determine in electing their policy makers. After all, the WTO Agreement allows withdrawal
of membership, should this be the political desire of a member.
 ARTHUR D. LIM v. EXECUTIVE SECRETARY
GR No. 151445, 2002-04-11
Facts:
Beginning January of 2002, personnel from the armed forces of the United States of
America started arriving in Mindanao to take part, in conjunction with the Philippine military, in
"Balikatan 02-1." 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, 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 (V FA) in 1999.
The entry of American troops into Philippine soil is proximately rooted in the international
anti-terrorism campaign declared by President George W. Bush in reaction to the tragic events that
occurred on September 11, 2001. On February 1, 2002, petitioners Arthur D. Lim and Paulino P.
Ersando filed this petition for certiorari and prohibition, attacking the constitutionality of the joint
exercise.
Issue:
Whether "Balikatan 02-1" is covered by the Visiting Forces Agreement
Ruling:
Yes. To resolve this, it is necessary to refer to the VFA itself: Not much help can be had
therefrom, unfortunately, since the terminology employed is itself the source of the problem. The
82 VFA permits United States personnel to engage, on an impermanent basis, in "activities," the
exact meaning of which was left undefined.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is
only logical to assume that.’Balikatan 02-1," a "mutual anti- terrorism advising, assisting and
training exercise," falls under the umbrella of sanctioned or allowable activities in the context of
the agreement. Both the history and intent of the Mutual Defense Treaty and the V FA support the
conclusion that combat-related activities -as opposed to combat itself -such as the one subject of
the instant petition, are indeed authorized.
TOMOYUKI YAMASHITA, petitioner, vs. WILHELM D. STYER, Commanding General,
United States Army Forces, Western Pacific, respondent.

G.R. No. L-129 December 19, 1945

Facts:

Petitioner Tomoyuki Yamashita, the commanding general of the 14th army group of the
Japanese Imperial Army in the Philippines, after his surrender became a prisoner of war of the
United States of America but was later removed from such status and placed in confinement as an
accused war criminal charged before an American Military Commission constituted by respondent
Lieutenant General Styer, Commanding General of the United States Army Forces, Western
Pacific.

Filing for habeas corpus and prohibition against respondent, he asks that he be reinstated
to his former status as prisoner of war, and that the Military Commission be prohibited from further
trying him. He questions, among others, the jurisdiction of said Military Commission.
Issues:
Whether or not the Military Commission was not duly constituted, and, therefore, it is
without jurisdiction;
Ruling:
YES.
The military commission was lawfully created in conformity with an act of Congress
sanctioning the creation of such tribunals. The laws of war imposes 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.
Habeas corpus is untenable 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. The petition for prohibition against the respondent
will also not life since the military commission is not made a party respondent in the case. As such,
no order may be issued requiring it to refrain from trying the petitioner.
 ERMES KOOKOORIYCHKIN vs. THE SOLICITOR GENERAL
G.R. No. L-1812, August 27, 1948
Facts:
In August 1941, Eremes Kookooritchkin (Kookooritchkin) filed for a petition for
naturalization. His petition was accompanied with supporting affidavits, a Kookooritchkin
declaration of intention, and a proper notice of hearing. Based on the records, Kookooritchkin was
a native born in Russia. He was enlisted in the military government and sent to the Navy Aviation
School. Later on, he found himself in Manila. He established his permanent residence in Iriga,
Camarines Sur. He married a Filipino spouse with whom he has one son. The applicant in his own
volition chose to cast his lot with the guerrilla movement and fought the enemy in several
encounters in Camarines Sur. He disclaimed his allegiance to the Communist Government of
Russia.
The trial court granted the petition of naturalization. It made findings of the establishment
of his family, employment, social life, ability to speak and write English and Bicol. The trial court
also noted his good moral character, adherence to the underlying principles of the Philippine
Constitution, and being a stateless refugee to no State. Thereafter, the appellant Solicitor General
filed an opposition to the Supreme Court. It claimed that Kookooritchkin failed to show that he
lost his Russian citizenship.
Issue:
Whether or not the Kookooritchkin is a stateless refugee.
Ruling:
YES. The Court affirmed the lower court in pronouncing Kookooritchkin stateless.
Kookooritchkin testified categorically that he is not a Russian citizen and that he has no
citizenship. His testimony supports the lower court's pronouncement that Kookooritchkin is a
stateless refugee in this country. Appellant points out that Kookooritchkin stated in his petition for
naturalization that he is citizen or subject of the Empire of Russia, but the Empire of Russia has
ceased to exist since the Czars were overthrown in 1917 by the Bolshevists, and the
Kookooritchkin disclaims allegiance or connection with the Soviet Government established after
the overthrow of the Czarist Government.
Kookooritchkin's testimony, besides being uncontradicted, was supported by the well-
known fact that the ruthlessness of modern dictatorship has scattered throughout the world a large
number of stateless refugees or displaced persons, without country and without flag. The tyrannical
intolerance of said dictatorships toward all opposition induced them to resort to beastly oppression,
concentration camps and blood purges, and it is only natural that the not-so-fortunate ones who
were able to escape to foreign countries should feel the loss of all bonds of attachment to the hells
which were formerly their fatherland's. Kookooritchkin belongs to that group of stateless refugees.
 Knowing, as all cultured persons all over the world ought to know, the history, nature and
character of the Soviet dictatorship, presently the greatest menace to humanity and civilization, it
would be technically fastidious to require further evidence of Kookooritchkin 's claim that he is
stateless than his testimony that he owes no allegiance to the Russian Communist Government
and, is because he has been at war with it, he fled from Russia to permanently reside in the
Philippines. After finding in this country economic security in a remunerative job, establishing a
family by marrying a Filipina with whom he has a son, and enjoying for 25 years the freedoms and
blessings of our democratic way of life, and after showing his resolution to retain the happiness he
found in our political system to the extent of refusing to claim Russian citizenship even to secure
his release from the Japanese and of casting his lot with that of our people by joining the fortunes
and misfortunes of our guerrillas, it would be beyond comprehension to support that the
Kookooritchkin could feel any bond of attachment to the Soviet dictatorship.
 NORTH SEA CONTINENTAL SHELF CASES
Facts:
Netherlands and Denmark had drawn partial boundary lines based on the equidistance
principle (A-B and C-D). An agreement on further prolongation of the boundary proved difficult
because Denmark and Netherlands wanted this prolongation to take place based on the
equidistance principle (B-E and D-E) where as Germany was of the view that, together, these two
boundaries would produce an inequitable result for her. Germany stated that due to its concave
coastline, such a line would result in her loosing out on her share of the continental shelf based on
proportionality to the length of its North Sea coastline. The Court had to decide the principles and
rules of international law applicable to this delimitation. In doing so, the Court had to decide if the
principles espoused by the parties were binding on the parties either through treaty law or
customary international law.
Issue:
Is Germany under a legal obligation to accept the equidistance-special circumstances
principle, contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either
as a customary international law rule or on the basis of the Geneva Convention?
Ruling:
The use of the equidistance method had not crystallised into customary law and the method
was not obligatory for the delimitation of the areas in the North Sea related to the present
proceedings.
Article 6 of the Geneva Convention stated that unless the parties had already agreed on a
method for delimitation or unless special circumstances exist, the equidistance method would
apply. Germany had signed, but not ratified, the Geneva Convention, while Netherlands and
Denmark were parties to the Convention. The latter two States argued that while Germany is not
a party to the Convention (not having ratified it), she was still bound by Article 6 of the Convention
because:
“…(1) by conduct, by public statements and proclamations, and in other ways, the
Republic has unilaterally assumed the obligations of the Convention; or has manifested
its acceptance of the conventional regime; or has recognized it as being generally
applicable to the delimitation of continental shelf areas…
(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in
such a manner as to cause other States, and in particular Denmark and the Netherlands, to
rely on the attitude thus taken up” (the latter is called the principle of estoppel).
The Court rejected the first argument. It said that only a ‘very definite very consistent
course of conduct on the part of a State would allow the Court to presume that the State had
somehow become bound by a treaty (by a means other than in the formal manner: i.e. ratification)
when the State was ‘at all times fully able and entitled to…’ accept the treaty commitments in a
formal manner. The Court held that Germany had not unilaterally assumed obligations under the
Convention. The court also took notice of the fact that even if Germany ratified the treaty, she had
the option of entering into a reservation on Article 6, following which that particular article would
no longer be applicable to Germany (in other words, even if one were to assume that Germany had
intended to become a party to the Convention, it does not presuppose that it would have also
undertaken those obligations contained in Article 6).
The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in
1980, discusses in more detail treaty obligations of third States (those States who are not parties to
the treaty). It clearly stipulates that obligations arise for third States from a provision of a treaty
only if (1) the actual parties to the treaty intended the provision to create obligations for third
States; and (2) third State expressly accept those obligations in writing (Article 35 of the VCLT).
The VCLT was not in force when the Court deliberated on this case. However, as seen above, the
Court’s position is consistent the VCLT. (See the relevant provisions of the Vienna Convention
on the Law of Treaties).
The Court held that the principle of equidistance, as contained in Article 6 did not form a
part of existing or emerging customary international law at the time of drafting the Convention.
The Court supported this finding based on (1) the hesitation expressed by the drafters of the
Convention, the International Law Commission, on the inclusion of Article 6 into the Convention
and (2) the fact that reservations to Article 6 was permissible under the Convention.
The Court then examined whether the rule contained in Article 6 had become customary
international law after the Convention entered into force – either due the Convention itself (i.e., if
enough States had ratified the Convention in a manner so as to fulfil the criteria specified below),
or because of subsequent State practice (i.e. even if an adequate number of States had not ratified
the Convention, one could find sufficient State practice to meet the criteria below). The Court held
that Article 6 of the Convention had not attained a customary law status. (Compare the 1958
Geneva Convention with the four Geneva Conventions on 1949 relating to international
humanitarian law in terms of the latter’s authority as a pronouncement of customary international
law).
For a customary rule to emerge the Court held that it needed: (1) very widespread and
representative participation in the Convention, including States whose interests were specially
affected (in this case, they were coastal States) (i.e. generality); and (2) virtually uniform practice
(i.e. consistent and uniform usage) undertaken in a manner that demonstrates (3) a general
recognition of the rule of law or legal obligation (i.e. opinio juries). In the North Sea Continental
Shelf cases the court held that the passage of a considerable period of time was unnecessary (i.e.
duration) for the formation of a customary law.
The Court held that the first criteria was not met. The number of ratifications and accessions
to the Convention (39 States) were not adequately representative or widespread. The Court held
that the duration taken for a customary law rule to emerge is not as important as widespread and
representative participation, uniform usage, and the existence of an opinio juris. Although the
passage of only a short period of time (in this case, 3 – 5 years) is not necessarily, or of itself, a
bar to the formation of a new rule of customary international law on the basis of what was
originally a purely conventional rule, an indispensable requirement would be that within the period
in question, short though it might be, State practice, including that of States whose interests are
specially affected, should have been both extensive and virtually uniform in the sense of the
provision invoked and should moreover have occurred in such a way as to show a general
recognition that a rule of law or legal obligation is involved.”
 SOUTH-WEST AFRICA CASES (Ethiopia v. South Africa; Liberia v. South Africa);
SECOND PHASE
July 18, 1966

Facts:

The South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), which
relate to the continued existence of the Mandate for South West Africa and the duties and
performance of South Africa as Mandatory thereunder, were instituted by Applications of the
Governments of Ethiopia and Liberia filed in the Registry on 4 November 1960. By an Order of
20 May 1961 the Court joined the proceedings in the two cases. The Government of South Africa
raised preliminary objections to the Court's proceeding to hear the merits of the case, but these
were dismissed by the Court on 21 December 1962, the Court finding that it had jurisdiction to
adjudicate upon the merits of the dispute.

In its Judgment on the second phase of the cases the Court, by the President's casting vote,
the votes being equally divided (seven-seven), found that the Applicant States could not be
considered to have established any legal right or interest in the subject matter of their claims and
accordingly decided to reject them.

The Applicants, acting in the capacity of States which were members of the former League
of Nations, put forward various allegations of contraventions of the League of Nations Mandate
for South West Africa by the Republic of South Africa.

The contentions of the Parties covered, inter alia, the following issues: whether the
Mandate for South West Africa was still in force and, if so, whether the Mandatory's obligation to
furnish annual reports on its administration to the Council of the League of Nations had become
transformed into an obligation so to report to the General Assembly of the United Nations; whether
the Respondent had, in accordance with the Mandate, promoted to the utmost the material and
moral well-being and the social progress of the inhabitants of the territory, whether the Mandatory
had contravened the prohibition in the Mandate of the "military training of the natives" and the
establishment of military or naval bases or the erection of fortifications in the territory; and whether
South Africa had contravened the provision in the Mandate that it (the Mandate) can only be
modified with the consent of the Council of the League of Nations, by attempting to modify the
Mandate without the consent of the United Nations General Assembly, which, it was contended
by the Applicants, had replaced the Council of the League for this and other purposes.

Issue:

Whether or not the Mandate for South West Africa was still in force
Ruling:

The Court recalled that the mandates system was instituted by Article 22 of the Covenant
of the League of Nations. The principal element of each instrument of mandate consisted of the
articles defining the mandatory's powers and its obligations in respect of the inhabitants of the
territory and towards the League and its organs. The Court referred to these as the "conduct"
provisions. In addition, each instrument of mandate contained articles conferring certain rights
relative to the mandated territory directly upon the members of the League as individual States, or
in favour of their nationals. The Court referred to rights of this kind as "special interests", embodied
in the "special interests" provisions of the mandates.

In addition, every mandate contained a jurisdictional clause, which, with a single

exception, was in identical terms, providing for a reference of disputes to the Permanent Court of
International Justice, which, the Court had found in the first phase of the proceedings, was now,
by virtue of Article 37 of the Court's Statute, to be construed as a reference to the present Court.

Applying this to the case at bar, the Court was tasked with interpreting "sacred trust of
civilization”. The historical basis of the legal enforcement of the English trust was that it was
binding upon the conscience of the trustee and thus should be enforceable in law. Nearly every
legal system possesses some institution whereby the property and sometimes the person of those
who are not sui juris, such as a minor or disabled person, can be entrusted to some responsible
person as a trustee; the trust has been used to protect the weak and the dependent.
 ASYLUM CASE (COLOMBIA/PERU)

YEAR OF THE DECISION: 1950; ICJ.

Facts:

Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the crime
of military rebellion” which took place on October 3, 1949, in Peru. 3 months after the rebellion,
Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that
Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention
on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the
Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the
same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification and
refused to grant safe passage.

Issue/s:

1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the
offence for the purpose of asylum under treaty law and international law?

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?

(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928
(hereinafter called the Havana Convention) when it granted asylum and is the continued
maintenance of asylum a violation of the treaty?

Ruling:

The court stated that in the normal course of granting diplomatic asylum a diplomatic
representative has the competence to make a provisional qualification of the offence and the
territorial State has the right to give consent to this qualification. The court held that there was no
expressed or implied right of unilateral and definitive qualification of the State that grants asylum
under the Havana Convention or relevant principles of international law. The Montevideo
Convention of 1933, which accepts the right of unilateral qualification, and on which Colombia
relied to justify its unilateral qualification, was not ratified by Peru. The Convention, per say, was
not binding on Peru and considering the low numbers of ratifications the provisions of the latter
Convention cannot be said to reflect customary international law. The court held that Colombia
did not establish the existence of a regional custom because it failed to prove consistent and
uniform usage of the alleged custom by relevant States. The court also reiterated that the fact that
a particular State practice was followed because of political expediency and not because of a belief
that the said practice is binding on the State by way of a legal obligation (opinio juris) is detrimental
to the formation of a customary law. The court concluded that Colombia, as the State granting
asylum, is not competent to qualify the offence by a unilateral and definitive decision, binding on
Peru.
 The court held that there was no legal obligation on Peru to grant safe passage either
because of the Havana Convention or customary law. The court looked at the possibility of a
customary law emerging from State practice where diplomatic agents have requested and been
granted safe passage for asylum seekers, before the territorial State could request for his departure.
Once more, the court held that these practices were a result of a need for expediency and other
practice considerations over an existence of a belief that the act amounts to a legal obligation.

An essential pre-requisite for the granting of asylum is the urgency or, in other words, the
presence of “an imminent or persistence of a danger for the person of the refugee”. The court held
that the facts of the case, including the 3 months that passed between the rebellion and the time
when asylum was sought, did not establish the urgency criteria in this case. Torre was accused of
a crime but he could not be tried in a court because Colombia granted him asylum. The court held
that “protection from the operation of regular legal proceedings” was not justified under diplomatic
asylum.Asylum may be granted on “humanitarian grounds to protect political prisoners against the
violent and disorderly action of irresponsible sections of the population. Torre was not in such a
situation at the time when he sought refuge in the Colombian Embassy at Lima.The court
concluded that the grant of asylum and reasons for its prolongation were not in conformity with
Article 2(2) of the Havana Convention.
 New Zealand v. France
Order of 22 September 1995
Facts:
In a press release of June 3, 1995, the French President Chirac announced that France
would conduct a final series of nuclear underground tests in the South Pacific region beginning
September 1995. To prevent these tests, New Zealand filed a "Request for an Examination of the
Situation" together with a request for the indicaton of provisional measures in accordance with
paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests Case (New Zealand v. France).
This unusual attempt at seizing the Court resulted from two facts. Firstly, there no longer existed
a jurisdictional link between New Zealand and France and, secondly, the Court in its Judgment of
1974 which declared an earlier case involving French nuclear tests moot owing to the unilateral
declaration of France announcing its intent to cease all atmospheric nuclear tests, opened the way
to come back to the Court if France would not comply with that commitment. Paragraph 63 of the
1974 Judgment expressly empowered the Applicant "to request an examination of the situation in
accordance with the provisions of the Statute, “if the basis of this Judgment were to be affected."
Issue:
May declaration made through unilateral act has effect of creating legal obligations?
Rulings:
The Court, had to examine whether the request of New Zealand fell within the provisions
of paragraph 63 of the 1974 Judgment. The main question was whether the basis of the 1974
Judgment would be affected by the French tests announced for 1995. According to the Court, the
application of New Zealand which led to the 1974 Judgment concerned the question of
atmospheric tests exclusively, and not all testing that might result in radio-active fall-out on New
Zealand territory. Since the commitment given by France in 1974 concerned only the cessation of
atmospheric tests, the Court could not find that the basis of the 1974 Judgment would be affected
by the new series of underground testing.
Due to the unambiguous wording of the French commitment, the Court could not even take
into account the developments of international environmental law and the undisputed possibility
of radio-active fall-out originating from underground testing.
Accordingly, the Court had to dismiss the request of New Zealand as well as the
applications to intervene filed by Australia, Samoa, the Solomon Islands, the Marshall Islands as
well as the Federated States of Micronesia. Three Judges, Judges Weeramantry, Koroma and ad
hoc judge Sir Geoffrey Palmer dissented.
They relied on the developments in international environmental law and focused on that
part of paragraph 63 of the 1974 Judgment which concerned the causing of radio-active fall-out
without, however, taking account of the express reference made to the atmospheric origin of the
fall-out in the 1974 Judgment. Their dissents reflect, in particular, a concern for the protection of
the environment, a view shared by the Court which had underlined expressly the obligations of
States to respect and protect the natural environment.
 AUSTRALIA vs. FRANCE
1974
Facts:
On June 13, 1995, the recently elected President of France, President Jacques Chirac,
announced that France would conduct a final series of eight nuclear weapons tests in the South
Pacific starting in September. President Chirac's announcement broke the moratorium on nuclear
testing observed by France and most other nuclear weapon states ("nuclear powers") for the past
three years. It came just a month after the decision of the parties to the Nuclear Non-Proliferation
Treaty' ("NPT") to extend the treaty indefinitely. As part of that outcome, the nuclear powers had
agreed to exercise the "utmost restraint" in nuclear testing pending the entry into force of a
Comprehensive Nuclear Test Ban Treaty.
New Zealand & Australia asserted separate claims condemning any resumption of' French
nuclear testing in the South Pacific. It asserted a nuclear fall-out that had been detected on their
respective territories. Although France contended that the measure of nuclear fall-out was not
enough to cause a public health concern, a series of statements from the French government
implied that no further testing would occur, despite several subsequent tests taking place. France
moved for the dismissal of the application.
Issue:
Whether or not a declaration made through unilateral act has effect of creating legal
obligations.
Ruling:
YES. Declaration made through unilateral acts may have the effect of creating legal
obligations.
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,
nothing in the nature of a quid pro quo nor any 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.
In announcing that the 1974 series of atmospheric tests would be the last, the French
Government conveyed to the world at large its intention effectively to terminate these tests. It was
bound to assume that other States might take note of these statements and rely on their being
effective. The validity of these statements and their legal consequences must be considered within
the general frame-work of the security of international intercourse, and the confidence and trust
which are so essential in the relations among States. It is from the actual substance of these
statements, and from the circumstances attending their making, that the legal implications of the
unilateral act must be deduced.
The objects of these statements are clear and they were addressed to the international
community as a whole, and the Court ruled that they constituted an undertaking possessing legal
effect. The Court found that the unilateral undertaking resulting from these statements cannot be
interpreted as having been made in implicit reliance on an arbitrary power of reconsideration. The
Court found further that the French Government has undertaken an obligation the precise nature
and limits of which must be understood in accordance with the actual terms in which they have
been publicly expressed.
 Request for an Examination of the Situation in accordance with Paragraph 63 of the
Court's 1974 Judgment in the Nuclear Tests Case (New Zealand v. France), made on 21
August 1995, (NEW ZEALAND v. FRANCE)
August 21, 1995
Facts:

In its Order the Court recalls that on 21 August 1995 New Zealand filed a "Request for an
Examination of the Situation" in accordance with paragraph 63 of the Court's 1974 Judgment in
the Nuclear Tests Case (New Zealand v. France); it is indicated in the Request that it "arises out
of a proposed action announced by France which will, if carried out, affect the basis of the
Judgment rendered by the Court on 20 December 1974 in the Nuclear Tests Case (New Zealand
v. France)"; and that "the immediate circumstance giving rise to the present phase of the Case is a
decision announced by France in a media statement of 13 June 1995" by the President of the French
Republic, according to which "France would conduct a final series of eight nuclear weapons tests
in the South Pacific starting in September 1995".

At the end of its Request, New Zealand states that the rights for which it seeks protection
all fall within the scope of the rights invoked in paragraph 28 of its Application of 1973, but that,
at the present time, it seeks recognition only of those rights that would be adversely affected by
entry into the marine environment of radioactive material as a result of the further tests to be carried
out at Mururoa or Fangataufa Atolls, and of its entitlement to protection and to the benefit of a
properly conducted Environmental Impact Assessment; within these limits, New Zealand asks the
Court to adjudge and declare:

"(i)that the conduct of the proposed nuclear tests will constitute a violation of the rights
under international law of New Zealand, as well as of other States; further or in the
alternative;

(ii)that it is unlawful for France to conduct such nuclear tests before it has undertaken an
Environmental Impact Assessment according to accepted international standards. Unless
such an assessment establishes that the tests will not give rise, directly or indirectly, to
radioactive contamination of the marine environment the rights under international law of
New Zealand, as well as the rights of other States, will be violated."

The Court further recalls that on the same day New Zealand filed a request for the following
provisional measures:

"(1) that France refrain from conducting any further nuclear tests at Mururoa and
Fangataufa Atolls;

(2) that France undertake an environmental impact assessment of the proposed nuclear tests
according to accepted international standards and that, unless the assessment establishes
 that the tests will not give rise to radioactive contamination of the marine environment,
France refrain from conducting the tests;

(3) that France and New Zealand ensure that no action of any kind is taken which might
aggravate or extend the dispute submitted to the Court or prejudice the rights of the other
Party in respect of the carrying out of whatever decisions the Court may give in this case".

The Court finally observes that New Zealand's "Request for an Examination of the
Situation" submitted under paragraph 63 of the 1974 Judgment, even if it is disputed in limine
whether it fulfils the conditions set in that paragraph, must nonetheless be the object of entry in
the General List of the Court for the sole purpose of enabling the latter to determine whether those
conditions are fulfilled; and that it has accordingly instructed the Registrar.

Issue:
Whether or not the Applicant could request an examination of the situation in accordance
with the provisions of the Statute

Ruling:
The Court recalls that New Zealand expresses the following view: "paragraph 63 is a
mechanism enabling the continuation or the resumption of the proceedings of 1973 and 1974. They
were not fully determined. The Court foresaw that the course of future events might in justice
require that New Zealand should have that opportunity to continue its case, the progress of which
was stopped in 1974. And to this end in paragraph 63 the Court authorized these derivative
proceedings. ...the presentation of a Request for such an examination is to be part of the same case
and not of a new one." New Zealand adds that paragraph 63 could only refer to the procedure
applicable to the examination of the situation once the Request was admitted; it furthermore
explicitly states that it is not seeking an interpretation of the 1974 Judgment under Article 60 of
the Statute, nor a revision of that Judgment under Article 61.

France, for its part, stated as follows: "As the Court itself has expressly stated, the possible
steps to which it alludes are subject to compliance with the 'provisions of the Statute' ... The French
Government incidentally further observes that, even had the Court not so specified, the principle
would nevertheless apply: any activity of the Court is governed by the Statute, which circumscribes
the powers of the Court and prescribes the conduct that States must observe without it being
possible for them to depart therefrom, even by agreement ...; as a result and a fortiori, a State
cannot act unilaterally before the Court in the absence of any basis in the Statute. Now New
Zealand does not invoke any provision of the Statute and could not invoke any that would be
capable of justifying its procedure in law. It is not a request for interpretation or revision (a), nor
a new Application, whose entry in the General List would, for that matter, be quite out of the
question (b)".

The Court observes that in expressly laying down, in paragraph 63 of its Judgment of 20
December 1974, that, in the circumstances set out therein, "the Applicant could request an
examination of the situation in accordance with the provisions of the Statute", the Court cannot
have intended to limit the Applicant's access to legal procedures such as the filing of a new
application (Statute, Art. 40, para. 1), a request for interpretation (Statute, Art. 60) or a request for
revision (Statute, Art. 61), which would have been open to it in any event; by inserting the above-
mentioned words in paragraph 63 of its Judgment, the Court did not exclude a special procedure,
in the event that the circumstances defined in that paragraph were to arise, in other words,
circumstances which "affected" the "basis" of the Judgment. The Court goes on to point out that
such a procedure appears to be inextricably linked, under that paragraph, to the existence of those
circumstances; and that if the circumstances in question do not arise, the special procedure is not
available.

Finally the Court indicates that it must likewise dismiss New Zealand's "Further Request
for the Indication of Provisional Measures" as well as the applications for permission to intervene
submitted by Australia, Samoa, Solomon Islands, the Marshall Islands and the Federated States of
Micronesia and the declarations of intervention made by the last four States - all of which are
proceedings incidental to New Zealand's main request.
 LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPON (ADVISORY
OPINION)
Facts:
In August 1993, the Director-General of the World Health Organization (WHO) officially
communicated to the Court a decision taken by the World Health Assembly to submit a question
for an advisory opinion.
In its advisory opinion in response to this request, the Court considered that there are three
conditions which must be satisfied in order to found 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, 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.
Issue:
Under certain circumstances, are threats or use of nuclear weapons permitted under
international law?
Ruling:
Yes. Under certain circumstance, threat or use of nuclear weapons are permitted under
international law. The threat or use of nuclear weapons in all circumstances is not authorized or
prohibited by either the customary or conventional international nuclear law.
Under the U.N. Charter, the threat or use of nuclear weapons would be considered legal if all
requirements of Article 51 which deals with state’s rights to self-defense are met. However, in
whatever the situation can be, a state obligation exists to pursue in good faith and bring to a
conclusion negotiations leading to nuclear disarmament in all its aspect under strict and effective
international control.
The first two conditions had been met. With regard to the third, however, the Court found
that although according to its Constitution the World Health Organization 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 at 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. And the Court pointed out that
whatever those effects might be, the competence of the WHO to deal with them is not dependent
on the legality of the acts that caused them.
The Court further pointed out that international organizations do not, unlike States, possess
a general competence, but are governed by the "principle of speciality", that is to say, they are
invested by the States which create them with powers, the limits of which are a function of the
common interests whose promotion those States entrust to them. Besides, the World Health
Organization is an international organization of a particular kind - a "specialized agency" forming
part of a system based in the Charter of the United Nations, which is designed to organize
international co-operation in a coherent fashion by bringing the United Nations, invested with
powers of general scope, into relationship with various autonomous and complementary
organizations, invested with sectorial powers. The Court therefore concluded that the
responsibilities of the WHO are necessarily restricted to the sphere of public "health" and cannot
encroach on the responsibilities of other parts of the United Nations system. And that there is no
doubt that questions concerning the use of force, the regulation of armaments and disarmament are
within the competence of the United Nations and lie outside that of the specialized agencies. The
request for an advisory opinion submitted by the WHO thus does not relate to a question which
arises "within the scope of [the] activities" of that Organization.
 THE PAQUETE HABANA

Facts:

The United States imposed a blockade of Cuba and declared war against Spain. While they
were out to sea, fishing along the coast of Cuba and near Yucatan, two Spanish vessels engaged in
fishing off the coast of Cuba were captured by blockading squadrons. Until stopped by the
blockading squadron, the fishing vessels had no knowledge of the existence of the war, or of any
blockade. They had no arms or ammunition on board, and made no attempt to run the blockade
after they knew of its existence, nor any resistance at the time of the capture. When the vessels
returned with their catches of fresh fish, they were seized and a libel of condemnation of each
vessel as a prize of war was filed against the vessel in court. The district court entered a final decree
of condemnation and public sale at auction. Claimants appealed.

Issue:

Whether or not it is proper for the court to issue a decree of condemnation and auction the
fishing vessels?

Ruling:

No. The Supreme Court ruled that, under the law of nations, in each case the capture was
unlawful and without probable cause. It was a rule of international law that coast fishing vessels,
pursuing their vocation of catching and bringing in fresh fish, were exempt, with their cargoes and
crews, from capture as prize of war. Although not reduced to treaty or statutory law, courts were
obligated to take notice of and give effect to that rule. Thus, the decrees condemning the vessels
were reversed and, in each case, it was ordered that the proceeds of the sales of each vessel and
cargo be restored to the respective claimant, with compensatory damages and costs. The Court
also noted that it had appellate jurisdiction over the controversy without regard to the amount in
dispute and without certification from the district court, as required by prior statutory law.
 TEMPLE OF PREAH VIHEAR, CAMBODIA V. THAILAND
JUDGMENT, [1962] ICJ REP 6, ICGJ 160 (ICJ 1962), 15TH JUNE 1962
Facts:
The Temple of Preah Vihear is a significant and ancient temple situated at the border of
Thailand and Cambodia. Historically, it belonged to Thailand since that area was within their
previous territorial sovereignty. However, in 1904, when Cambodia was under the rule of the
French, they have come into an agreement with Thailand to divide the border according to the
watershed placed in that area. Thusly, a French- Siamese (now known as Thailand) commission
drew a detailed map of the said border where thought by mistake but obviously marked the Preah
Vihear in the Cambodian territory.
After receiving the map, Thailand never objected to the stipulations. After several years,
the prince of Thailand visited the said temple and he saw that the French Flag over the temple but
did not raise any objection. From the time UNESCO declared Preah Vihear temple a world heritage
site, Thailand began to demand the temple as falling within their territory and even put military
personnel on the temple. Thus, leading Cambodia to file a case against them for breaching into
their territory, presenting the French-Siamese commission’s map as proof of their right over the
temple.
Thailand then asserted multiple views according that the map has no binding character. In
addition, they claim to have never accepted the map, or even if they did, it was on a mistaken belief
that the frontier indicated the watershed line.
Issue:
Whether or not Cambodia had sovereignty over the territory
Ruling:
Yes.
The Court ruled in favor of Cambodia. The commission which marked the map up until its
finality involved both Thailand and France (under which Cambodia is a colony) adopting the same
stipulations without any objections. Whatever mistake that Thailand claims they have made has
no bearing, since the map has been deemed through a joint commission to be binding between the
parties: especially since it detailed the markings of the territorial boundaries between the two
states. This can be considered as a treaty, and Thailand, having free consent and approved the
bilateral agreement on territorial divisions, would have the binding force and effect between them
and Cambodia.
In simpler words, the ICJ found that Thailand had indeed accepted the map freely and with
consent; and that Thailand was under an obligation to withdraw any military or police force placed
and stationed therein, restoring to Cambodia any objects removed from the ruins since their
unlawful occupation.
 PORTUGAL v. INDIA
CASE CONCERNING RIGHT OF PASSAGE OVER: INDIAN TERRITORY (MERITS)
Judgment of 12 April 1960
Facts:
The Government of Portugal stated that its territory in the Indian Peninsula included two
enclaves surrounded by the Territory of India, Dadra and Nagar-Aveli. It was in respect of the
communications between those enclaves and the coastal district of Daman, and between each
other, that the question arose of a right of passage in favour of Portugal through Indian territory
and of a correlative obligation binding upon India. It further stated that the Government of India
prevented Portugal from exercising that right of passage and that Portugal was thus placed in a
position in which it became impossible for it to exercise its rights of sovereignty over the enclaves.
Following upon the Application, the Court was seized of six preliminary objections raised by the
Government of India.
Issue:
Whether Portugal have a customary right over Indian territory
Ruling:
A right of passage does exist in regional custom. India argued before the Court that practice
between only two states was not sufficient to form a local custom. The Court rejected this
reasoning, finding no reason why a century and a quarter of practice based on mutual rights and
obligations was insufficient for local custom to arise. This local practice, thus, prevailed over any
general rules.
The court came to a decisive conclusion which was more balanced one. It laid that the
territory was used by both the parties and was mutually used by both the countries without any
kind of restriction. As regards to the perishable goods the court said that there was regular passage
of goods with any hindrance by the Indian Government over that period of time expect on some
occasion where they were subject to certain customary revenue taxes. The court said that the
occasion were certain restriction were put at the time of Second World War and the stoppage of
transit of salt were reasonable in nature and were not something to be vary of. No special taxes
were imposed on the transit which could signify that there was restriction from the beginning and
which could justify this unreasonable restriction put by Indian Government.
The court concluded by saying that with regard to individuals, other civil bodies and
adopted methods especially during the time of British are to remain same and any restriction
imposed on it will be regarded as unreasonable and unjustified. The court viewed all this as a
practice which has been established as a law between countries and have bind the parties together.
It laid that the Portugal’s right to passage of Indian territory exists however the question related to
armed forces and personals along with the police were discussed separately and while looking at
the instances of various tensions that grew over the period of 1954, the court said that though there
were instances where such armed forces were allowed, but that was a period when India was not
ruled by its own government and by looking at the present situations the court concludes that India
subject to its powers and under reasonable behaviour applied these restriction and it is justified
according to the law to do so as the right of prevention of one’s own territory is provided to all the
countries around the world and India is no exception to it.
 CORFU CHANNEL CASE
International Courts of Justice, 1949
Facts:
On October 22nd of 1946, a squadron of British warships left the Corfu Channel which is a
part of the Albanian waters that had been previously swept. The ships proceeded northward
through a channel previously swept for mines in North Corfu Strait. One of the ships struck a mine
and was heavily damaged. While another ship towed the damaged ship, it struck another mine and
was much damaged. The ships were severely damaged and members of the crew were killed.
The United Kingdom seized the Court of the dispute by an Application filed on 22 May
1947 and accused Albania of having laid or allowed a third State to lay the mines after mine-
clearing operations had been carried out by the Allied naval authorities. It claimed that Albania
was internationally responsible for damages. The case had previously been brought before the
United Nations and, in consequence of a recommendation by the Security Council, had been
referred to the Court.
Issue:
Whether or not Albania is liable for damages due to the mine explosions.
Ruling:
YES. The Court ruled that the laying of the minefield which caused the explosions on
October 22nd of 1946, could not have been accomplished without the knowledge of the Albanian
Government.
The obligations incumbent upon the Albanian authorities consisted in notifying, for the
benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in
warning the approaching British warships of the imminent danger to which the minefield exposed
them. Such obligations are based, not on the Hague Convention of 1907, No. VTII, which is
applicable in time of war, but on certain general and well-recognized principles, namely:
elementary considerations of humanity, even more exacting in peace than in war ; the principle of
the freedom of maritime communication ; and every State's obligation not to allow knowingly its
territory to be used for acts contrary to the rights of other States.
In fact, Albania neither notified the existence of the minefield, nor warned the British
warships of the danger they were approaching. But Albania's obligation to notify shipping of the
existence of mines in her waters depends on her having obtained knowledge of that fact in
sufficient time before October 22; and the duty of the Albanian coastal authorities to warn the
British ships depends on the time' that elapsed between the moment that these ships were reported
and the moment of the first explosion. The Court reached the conclusion that Albania is responsible
under international law for the explosions which occurred on October 22nd of 1946, in Albanian
waters, and for the damage and loss of human life which resulted from them, and that there is a
duty upon Albania to pay compensation to the United Kingdom.
 THE CHOZROW FACTORY (Germany vs. Poland, 1928)
September 13, 1928

Facts:

After the First World War, Germany agreed to transfer the control of a region named
Upper Silesia area to Poland. Germany and Poland agreed to a bipartite agreement named
Germano-Polish Convention on Upper Silesia (Geneva Convention). Under the agreement, both
contracting parties agreed that Poland would not forfeit any property of Germany. However,
Poland forfeited two of German Companies situated at that area.

On March 1915, the German Reich (Germany) entered into a contract with Bayerische
Stickstoffwerke (Bayerische) for, among others, the construction of a nitrate factory in Chozrow,
Upper Silesia. Come Dec 1919, another company Oberschlesische Stickstoffwerke
(Oberschlesische) was formed. Oberschlesische would own the land and improvements of the
factory while Bayerische would continue handling the management and operations.
Oberschlesische was duly entered in the land register as owner of the property constituting nitrate
factory. The Polish Court nullified the registration of Oberschlesische as owner of the factory, and
restored the right of ownership to the name of the Polish Treasury. M. Ignacy Moscicki was
delegated by the Polish government with full powers to take charge of the factory. He took
possession of the immovable and movable property therein.

Oberschlesische and Bayerische brought separate actions to recover possession of the

factory before the German-Polish Mixed Arbitral Tribunal at Paris, but both later withdrew.
Oberschlesische then brought an action for the recovery of the movable property, but this led to
no decision on the merits. Germany initiated direct negotiations with Poland. Germany saw the
impracticability of restoring the factory, and opted to demand reparations. However, negotiations
were unsuccessful because, among others, Poland believed that some of its claims against
Germany should be considered in offsetting the indemnity to be awarded to the latter.

Germany submitted a suit to the Permanent Court of International Justice (PCIJ)

demanding reparation from the Polish Government, claiming that according to PCIJ Judgment No.
7, Poland’s acts contradicted Art. 6 of the Geneva Convention. On receipt of Germany’s complaint,
Poland denied the PCIJ’s jurisdiction, and submitted that the Court should declare that it had no
jurisdiction. This was overruled.

Germany argues that Poland should pay the two companies the compensation due for the
taking possession of the working capital of the factory from July 3, 1992, to the date of judgment.
However, this is not an ordinary action for damages but a dispute between governments; the
German Government has not brought this suit as representative of the individuals who have
suffered injury, but it may estimate the damage for which it claims reparation on its own behalf,
according to the measure provided by the losses suffered by the companies whose case it has taken
up. Finally, Poland should not be allowed to demand a set-off claim.
 Poland, on the other hand, argues that Germany is modifying the subject of the dispute; the
German claim assumed another aspect if it was no longer a question of compensating the
companies, but of compensating the State for the injury suffered by it. Poland admits the existence
of injury to Bayerische, but denies the existence of any injury to Oberschlesische (since its
ownership was null and void) and consequently submits that Germany’s claim should be
dismissed.

ISSUES:
1. Whether or not the court has its jurisdiction over the matter or not
2. Whether or not there was any violation of the agreement between Germany and Poland or
not
3. Whether or not there was any international obligation on Poland due to the breach of
bipartite agreement between Germany and Poland

RULING:
1. The Permanent Court of International Justice has its jurisdiction to try the case.
2. Poland had violated the international agreement between Germany and Poland.
3. Poland would be liable to repair any loss suffered by the Germany due to the forfeit of that
two company as they violated that international agreement.

The Tribunal justified its jurisdiction by virtue of Article 36 PCIJ statute, which states that
the Parties under such Convention could go to the PCIJ in all or any of the classes of legal dispute
concerning (a) interpretation of a Treaty, (b) the existence of any fact which if established would
constitute as an international obligation, and (c) nature or extent of the reparation to be made for
the breach of an international obligation. The Tribunal held that Poland had violated Article 7 of
the Geneva Convention and unlawfully expropriated two German factories. Subsequently,
it ordered Poland to give compensation for damages because under the general principle of
international law, reparation of a wrongful act under international law may consist in
compensation corresponding to the damage which the nationals of the injured State have suffered,
as a result of the act.

Under Article 23 Geneva Convention, Germany is entitled to claim damages in this case.
For that reason, Poland then was made liable to give compensation to Germany.

The rule of Permanent Court of International Justice was very appropriate, which was given
in favour of Germany as the attitude of Polish Government towards two German companies was
not in conformity with the articles of Convention concerning Upper Silesia, concluded at Geneva
on May 15th, 1922 (Geneva Convention), thus violating the international agreement by unlawful
expropriation of the said companies and that infers the state responsibility on Poland for reparation
for such violation.
 It is a general principal of International law that every violation of an engagement involves
an obligation to make reparation adopted form municipal law, which is applied in this case along
with the principal of state responsibility as a state is considered as an individual entity when come
to an international dispute and it was accepted by all, repetition of which confirms that the decision
is conform to existing law. A recent initiative of International Law Commission at its fifty-third
session, in 2001 gave the state responsibility a more precise scope for the application of the
principal of state responsibility. Observation of similar cases undertook by Permanent Court of
International justice. If compared with the reasoning with this case would be quite new to that
time, therefore it is highly unlikely that any consistent previous reasoning could be found in similar
cases.

The appropriate interpretation was made by PCIJ in every point, such as the interpretation
of Article 36 of the Statute of the Court to justify its jurisdiction. The Article said the parties can
go to the court in all or any of the classes of legal dispute concerning a) the interpretation of a
Treaty; c) the existence of any fact which, if established, would constitute a breach of an
international obligation d) the nature or extent of the reparation to be made for the breach of an
international obligation. It brings the general concept of law that every violation of an engagement
involves an obligation reparation. And the violation was clarified as the Poland violated the Article
7 of Geneva convention and illegally expropriate two of German factories. In this case, the court
further interpreted that the expropriating state must, in addition to paying the compensation due in
respect of a lawful expropriation, pay also damages for any loss sustained by the injured party.

The reasoning that the PCIJ has given is logical and consistent to me. First of all, the court
acted interpreting the Geneva Convention, where the parties agreed to come before the court on
any violation of the convention. Secondly, as one party denied the jurisdiction of the court citing
the concerning law, the court clear the ambiguity of that matter and the shadow over the
jurisdiction became clear. Thirdly, when the court saw the violation of Geneva convention Articles
6 -22, the court ordered indemnity referring the principal of international law, as mentioned by the
court, “It is a principle of international law that the reparation of a wrong may consist in an
indemnity corresponding to the damage which the nationals of the injured State have suffered as a
result of the act which is contrary to international law.” Fourthly, It was a question who would
indemnify as therefore the court held, in a different plane” to private law, with the claimant State
being the one entitled to claim damages. Id. It also noted that it was open for states to create private
tribunals to adjudicate private claimants’ claims for breach of international law, but that nothing
in Article 23 of the Geneva Convention affected Germany’s entitlement to claim damages in this
case”. So the state (Poland) was made liable to indemnify Germany.
 Barcelona Traction, Light and Power Company Ltd, (Belgium v. Spain)
Facts:
The Barcelona Traction, Light and Power Company, Limited, was incorporated in 1911 in
Toronto (Canada), where it has its head office. For the purpose of creating and developing an
electric power production and distribution system in Catalonia (Spain) it formed a number of
subsidiary companies, of which some had their registered offices in Canada and the others in Spain.
In 1936 the subsidiary companies supplied the major part of Catalonia’s electricity requirements.
According to the Belgian Government some years after the first world war Barcelona Traction’s
share capital came to be very largely held by Belgian nationals but this contention was denied by
the Spanish Government.
Barcelona Traction issued several series of bonds, principally in sterling. The sterling
bonds were serviced out of transfers to Barcelona Traction effected by the subsidiary companies
operating in Spain. In 1936 the servicing of the Barcelona traction bonds was suspended on account
of the Spanish civil war. After that war, the Spanish exchange control authorities refused to
authorize the transfer of the foreign currency necessary for the resumption of the servicing of the
sterling bonds. Subsequently, when the Belgian Government complained of this, the Spanish
Government stated that the transfers could not be authorized unless it, were shown that the foreign
currency was to be used to repay debts arising from the genuine importation of foreign capital into
Spain, and that this had not been established.
In 1948 three Spanish holders of recently acquired Barcelona Traction sterling bonds
petitioned that court of Reus (Province of Tarragona) for a declaration adjudging the company
bankrupt, on account of failure to pay the interest on the bonds. On 12 February 1948, a judgment
was given declaring the company bankrupt and ordering the seizure of the assets of Barcelona
Traction and of two of its subsidiary companies.
Pursuant to this judgment, the principal management personnel of the two companies were
dismissed and Spanish directors appointed. Shortly afterward, these measures were extended to
the other subsidiary companies. New shares of the subsidiary companies were created, which were
sold by public auction in 1952 to a newly-formed company, Fuerzas Electricas ~de Cataluina, S.A.
(Fecsa), which thereupon acquired complete control of the undertaking in Spain.
Proceedings were brought without success in the Spanish courts by various companies or
persons. According to the Spanish Government, 2,736 orders were made in the case and 494
judgments given by lower and 37 by higher courts before it was submitted to the International
Court of Justice. The Court found that in 1948 Barcelona Traction, which had not received a
judicial notice of the bankruptcy proceedings, and was not represented before the Reus court, took
no proceedings in the Spanish courts until 18th June and thus did not enter a plea of opposition
against the bankruptcy judgment within the time-limit of eight days from the date of publication
of the judgment laid down in Spanish legislation. The Belgian Government contends, however,
that the notification and publication did not comply with the relevant legal requirements and that
the eight-day time-limit never began to run.
 Representations were made to the Spanish Government by the British, Canadian, United
States and Belgian Governments as from 19481 or 1949. The interposition of the Canadian
Government ceased entirely in 1955..
Issue:
Does a state assumes an obligation concerning the treatment of foreign investments based
on general international law, once the state admits foreign investments or foreign nationals into its
territory?
Ruling:
Yes. A state assumes an obligation concerning the treatment of foreign investments based
on general international law, once the state admits foreign investments or foreign nationals into its
territory. It is highly imperative to draw a distinction between those obligations of a state toward
the international community as a whole and those arising from the field of diplomatic protection.
It is only the party to whom an international obligation is due can bring a claim if a breach of an
obligation that is the subject of diplomatic protection occurs.

The Court took cognizance of the great amount of documentary and other evidence
submitted by the Parties and fully appreciated the importance of the legal problems raised by the
allegation which was at the root of the Belgian claim and which concerned denials of justice
allegedly committed by organs of the Spanish State. However, the possession by the Belgian
Government of a right of protection was a prerequisite for the examination of such problems. Since
no jus standi before the Court had been established, it was not for the Court to pronounce upon
any other aspect of the case.

The Court observed that when a State admitted into its territory foreign investments or
foreign nationals it was bound to extend to them the protection of the law and assumed obligations
concerning the treatment to be afforded them. But such obligations were not absolute. In order to
bring a claim in respect of the breach of such an obligation, a State must first establish its right to
do so.

In the field of diplomatic protection, international law was in continuous evolution and was
called upon to recognize institutions of municipal law. In municipal law, the concept of the
company was founded on a firm distinction between the rights of the company and those of the
shareholder. Only the company, which was endowed with legal personality, could take action in
respect of matters that were of a corporate character.

A wrong done to the company frequently caused prejudice to its shareholders, but this did
not imply that both were entitled to claim compensation. Whenever a shareholder’s interests were
harmed by an act done to the company, it was to the latter that he had to look to institute appropriate
action. An act infringing only the company’s rights did not involve responsibility towards the
shareholders, even if their interests were affected. International law had to refer to those rules
generally accepted by municipal legal systems. An injury to the shareholder’s interests resulting
from an injury to the rights of the company was insufficient to found a claim.
 Where it was a question of an unlawful act committed against a company representing
foreign capital, the general rule of international law authorized the national State of the company
alone to exercise diplomatic protection for the purpose of seeking redress. No rule of international
law expressly conferred such a right on the shareholder’s national State.

The Court considered whether there might not be, in the present case, special circumstances
for which the general rule might not take effect. Two situations need to be studied: (a) the case of
the company having ceased to exist, and (b) the case of the protecting State of the company lacking
the capacity to take action.
 TEXACO OVERSEAS PEROLEUM CO. V LIBYA
17 I.L.M. 1; (1978)
Facts:
A decree to nationalize all Texaco’s rights, interest and property in Libya was promulgated
by Libya. This action by the Libyan Government led Texaco to request for arbritation, but it was
refused. A sole arbritator was appointed by the International Court of Justice upon the request of
Texaco. Libya was found to have breach its obligation under the Deeds of Concession and was
legally bound to perform in accordance with the terms given.
Issue:
Whether or not the general principle of law in the International arbitration context, can be
held to be sufficient criterion for the internationalization of a contract.
Ruling:
Yes. Whenever reference has been made to the general principles of law in the International
arbitration context, it is always held to be a sufficient criterion for the internationalisation of a
contract. The lack of adequate law in the state is considered and the need to protect the private
contracting party against unilateral and abrupt modifications of law in the contracting state is a
justification to the recourse to general principles. Though international law involves subjects of a
diversified nature, legal international capacity is not solely attributed to a state. A private
contracting party, unlike a state, has only limited capacity and is limited to invoke only those rights
that he derives from his contract.
 BP Exploration Company (Libya) Limited v. Government of the Libyan Arab Republic
Facts:
On 7 December 1971, the Respondent passed the BP Nationalisation Law which
nationalised the operations of the Claimant in Concession 65. The BP Nationalisation Law claimed
to restore to the State and then to transfer to a new company, the Arabian Gulf Exploration
Company, ownership of all properties, rights, assets and shares relating to the above-mentioned
operations.
The BP Nationalisation Law provided that the State should pay compensation to the
Claimant. The amount of compensation was to be determined by a committee to be established by
the Minister of Petroleum. The decision of the committee was to be documented and final, to admit
of no appeal by any means, and to be communicated to the Minister of Petroleum who was to
notify the Claimant of it within thirty days of its issue.
In the aspects unrelated to compensation, the BP Nationalisation Law was rapidly
implemented. The Claimant's operations in Concession 65 were brought to a complete halt: its
staff were immediately excluded from its premises and from its production and transportation
facilities. These were then taken over by the Arabian Gulf Exploration Company.
Issue:
Whether or not the nationalisation by the Respondent constituted a breach of the
contractual relationship allegedly existing between the Claimant and the Respondent.
Whether or not the legal effects of the nationalisation by the Respondent which in the
Claimant's submission constitutes a breach of contract.
Ruling:
While the provision generates practical difficulties in its implementation, it offers guidance
in a negative sense by excluding the relevance of any single municipal legal system as such. To
the extent possible, the Tribunal will apply the clause according to its clear and apparent meaning.
Natural as this would be in any event, such an interpretation is the more compelling as the
contractual document is of a standardised type prescribed by the Respondent. The governing law
clause moreover was the final product of successive changes made in the Libyan petroleum
legislation in the decade between 1955 and 1965 by which the relevance of Libyan law was
progressively reduced.
The BP Nationalisation Law, and the actions taken thereunder by the Respondent, do
constitute a fundamental breach of the BP Concession as they amount to a total repudiation of the
agreement and the obligations of the Respondent thereunder, and, on the basis of rules of
applicable systems of law too elementary and voluminous to require or permit citation, the
Tribunal so holds. Further, the taking by the Respondent of the property, rights and interests of the
Claimant clearly violates public international law as it was made for purely extraneous political
reasons and was arbitrary and discriminatory in character. Nearly two years have now passed since
the nationalisation, and the fact that no offer of compensation has been made indicates that the
taking was also confiscatory.
The Tribunal having held that the Respondent has committed a fundamental breach of
contract, only one issue remains to be considered, i.e. the effect in law of this breach, the resulting
legal obligations of the Respondent and the remedies available to the Claimant, all to the extent
that these questions can and need be answered for the purpose of ruling upon the Declarations
which the Claimant now asks the Tribunal to make.
 SAUDI ARABIA vs. ARABIAN AMERICAN OIL COMPANY (ARAMCO)
Facts:
This was an arbitration relating to the Interpretation of a concession agreement made on
May 29, 1933, between the Government of the State of Saudi Arabia and the Standard Oil
Company of California. The agreement was subsequently assigned to the California Arabian
Standard Oil Company, which later changed its name to the Arabian American Oil Company (for
convenience118called "Aramco "). 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. (for convenience called " Satco "), 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.
Issue:
What rights were conferred upon the Company by the Aramco Concession Agreement
Ruling:
Although the Concession Agreement is connected which the Hanbali school of Moslem
law, as applied in Saudi Arabia-from which it derives its validity and effectiveness-the
Interpretation of this Agreement should not be based on that law alone. The Interpretation of
contracts is not governed by rigid rules; it is rather an art, governed by principles of logic and
common Sense, which purports to lead to an adaptation, as reasonable as possible, of the provisions
of a contract to the facts of a dispute.
The Interpretation of juridical acts is not made according to the same methods as the
interpretation of Statutes and is more difficult, for it does not aim merely at specifying the meaning
of general and abstract principles laid down by the legislator, but at ascertaining what was the
common Intention of the Parties at the time their agreement was signed; this is done by an
examination of the terms they used and also of their conduct which in Business practices equivalent
to a manifestation of will, and even sometimes of their silence. It should also be kept in mind that
declarations of will seldom specify completely what legal effects the agreement is supposed to
have. They are left for the Judge to discover; he must determine the exact scope of the contractual
Situation of the Parties. Experience shows that, in Business, the exhaustive character of the
provisions of a contract is always sacrificed to the practical and immediate necessities
contemplated by the Parties.
The starting point of any process of Interpretation is the text agreed upon by the Parties.
Obviously, the essence of a contract is to be found in the concordant will of the Parties; without
such harmony in the terms, no rights, no obligations could result. In the art of Interpretation of
texts, the written word comes first. It must be consulted and accepted in the first place, and the
words used by the Parties must be given their natural meaning. As was pointed out by Vattel, '
when an act is conceived in clear and precise terms, when its meaning is manifest and does not
lead to any absurd result, there is no reason to reject the natural meaning of the text. To look
elsewhere for conjectures in Order to restrict or to extend this meaning, is tantamount to evading
it'.
The Government did not fail to question the exactitude of this maxim, pointing out that it
rests upon a petitio principii since, before deciding that no Interpretation should be made, one must
first demonstrate that no Interpretation is necessary. Such criticism is obviously baseless whenever
one of the Parties, confronted with a clear text, alleges that it is ambiguous simply because it is
embarrassing, and seeks to have it say what it does not. If, on the other hand, each Party is
convinced, in good faith, that the Interpretation suggested by the other is not exact, Vattel's maxim
does no longer suffice for the solution of the dispute, and recourse must be had to all the means of
Interpretation of legal acts. Such is particularly the case when the contracting Parties did not
contemplate, at the time of concluding the agreement, some question which arose at a later date.
In the dispute under consideration, the Tribunal has pleasure in noting that the good faith
of both Parties is unquestioned; this results from the 6th ' Whereas ' clause of the Preamble of the
Arbitration Agreement, where the Parties recognize the full validity of the 1933 Concession
Agreement, and from the oral hearings where it was repeatedly stated an behalf of the Government
that H.M. the King mainly expected this Tribunal to give such directions as were necessary for His
Government to act rightly and justly. The apparent or supposed clearness of the provisions of the
Concession Agreement is therefore no reason to refrain from resorting to legal interpretation in
order to ascertain the exact meaning of the true scope of the terms used by the Parties.
 II. SUBJECTS OF INTERNATIONAL LAW

HOLY SEE vs. ROSARIO

December 1, 1994

Facts:

Petition arose from a controversy over a parcel of land. Lot 5-A, registered under the name
Holy See, was contiguous to Lot 5-B and 5-D under the name of Philippine Realty Corporation
(PRC). The land was donated by the Archdiocese of Manila to the Papal Nuncio, which represents
the Holy See, who exercises sovereignty over the Vatican City, Rome, Italy, for his residence. Said
lots were sold through an agent to Ramon Licup who assigned his rights to respondents Starbright
Sales Enterprises, Inc.

When the squatters refuse to vacate the lots, a dispute arose between the two parties because
both were unsure whose responsibility was it to evict the squatters from said lots. Respondent
Starbright Sales Enterprises Inc. insists that Holy See should clear the property while Holy See
says that Respondent Corporation should do it or the earnest money will be returned. With this,
Msgr. Cirilios, the agent, subsequently returned the P100, 000 earnest money.

The private respondent filed a complaint before the RTC of Makati against the petitioner
and three other defendants: Msgr. Domingo Cirilos, who acted as agent to the sellers, the PRC and
Tropicana. It prayed for: 1) annulment of the Deeds of Sale between petitioner and the PRC on the
one hand and Tropicana on the other; 2) the reconveyance of the lots in question; 3) specific
performance of the agreement to sell between it and the owners of the lots and; 4) damages. The
petitioners and Cirilos separately moved to dimiss the complaint: petitioners for lack of jurisdiction
based on soverign immunity from suit and Cirilos for being an improper party. An opposition to
the motion was filed by private respondent.

The trial court issued an order denying the petitioner’s motion to dismiss, reason being that
the petitioner can no longer be immune as they entered into a business contract. Petitioner moved
for reconsideration. They then filed a “Motion for Hearing for the Sole Purpose of Establishing
Factual Allegation for Claim of Immunity as a Jurisdictional Defense,” to facilitate the hearing in
its defense of sovereign immunity. Private repondents opposed the motion as well as the motion
for reconsideration. The trial court ordered the resolution be suspended until after trial on the marits
and directing the petitioner to file its answer. Petitioner elevated the matter to the Supreme Court.
The petitioner invoked its privilege of sovereign immunity only on its behalf and on behalf of its
official representatives, the Papal Nuncio. Eventually, the Department of Foreign Affairs filed for
a Motion of Intervention caliming its legal interest on the outcome of the case concerning the
diplomatic immunity of the petitioner. It stated its adoption upon the claim of the petitioner with
regard to its claim for soeverign immunity from suit. This was opposed by the private respondent.
Issue:

Whether or not Holy See can invoke sovereign immunity

Ruling:

The Court held that Holy See may properly invoke sovereign immunity for its non-
suability. As expressed in Sec. 2 Art II of the 1987 Constitution, generally accepted principles of
International Law are adopted by our Courts and thus shall form part of the laws of the land as a
condition and consequence of our admission in the society of nations.

It was noted in Article 31(A) of the 1961 Vienna Convention on Diplomatic Relations that
diplomatic envoy shall be granted immunity from civil and administrative jurisdiction of the
receiving state over any real action relating to private immovable property. The Department of
Foreign Affairs (DFA) certified that the Embassy of the Holy See is a duly accredited diplomatic
missionary to the Republic of the Philippines and is thus exempted from local jurisdiction and is
entitled to the immunity rights of a diplomatic mission or embassy in this Court. Furthermore, it
shall be understood that in the case at bar, the petitioner has bought and sold lands in the ordinary
course of real estate business, surely, the said transaction can be categorized as an act jure
gestionis. However, petitioner has denied that the acquisition and subsequent disposal of the lot
were made for profit but claimed that it acquired said property for the site of its mission or the
Apostolic Nunciature in the Philippines.

The Holy See is immune from suit because the act of selling the lot of concern is non-
propriety in nature. The lot was acquired through a donation from the Archdiocese of Manila, not
for a commercial purpose, but for the use of petitioner to construct the official place of residence
of the Papal Nuncio thereof. The transfer of the property and its subsequent disposal are likewise
clothed with a governmental (non-proprietal) character as petitioner sold the lot not for profit or
gain rather because it merely cannot evict the squatters living in said property. Generally, there are
two accepted concepts of sovereignty: a) classical or absolute theory, wherein a sovereign cannot
be made as respondent to courts of another sovereign without its consent and; b) restrictive theory,
which puts conditions on when to recognize immunity. Under the restrictive theory, sovereign
immunity is only recognized with regard to public acts or acts jure imperii (or those in pursuant to
governmental functions) . If the act is private or acts jure gestionis (those that are for profit), then
immunity cannot be invoked.

In this case, the petitioner had denied that the acquisition and subsequent disposal of the
Lot 5-A were made for profit. It claimed that it acquired the property for its mission or the
Apostolic Nunciature in the Philippines. The lot, allegedly, was acquired by donation from the
Archdiocese of Manila for the purpose of building official residence of Papal Nuncio. However,
when the informal settlers refused to leave the property, the petitioner decided to dispose the
property, not for commercial purpose. The DFA intervened as they established in a Memorandum
and Certification the privilege of sovereign immunity of the petitioner, stating that they are a duly
accredited diplomatic mission to the Philippines exempt from local jurisdiction and has title to all
rights, privileges and immunities of a diplomatic mission or embassy in the country. When the
plea of immunity has been recognized by the executive department, such shall be conclusive to
courts.
 BARCELONA TRACTION, LIGHT AND POWER COMPANY LTD, (BELGIUM V.
SPAIN)
Facts:
The Barcelona Traction, Light and Power Company, Limited, was incorporated in 1911 in
Toronto (Canada), where it has its head office. For the purpose of creating and developing an
electric power production and distribution system in Catalonia (Spain) it formed a number of
subsidiary companies, of which some had their registered offices in Canada and the others in Spain.
In 1936 the subsidiary companies supplied the major part of Catalonia’s electricity requirements.
According to the Belgian Government some years after the first world war Barcelona Traction’s
share capital came to be very largely held by Belgian nationals but this contention was denied by
the Spanish Government.
Barcelona Traction issued several series of bonds, principally in sterling. The sterling
bonds were serviced out of transfers to Barcelona Traction effected by the subsidiary companies
operating in Spain. In 1936 the servicing of the Barcelona traction bonds was suspended on account
of the Spanish civil war. After that war, the Spanish exchange control authorities refused to
authorize the transfer of the foreign currency necessary for the resumption of the servicing of the
sterling bonds. Subsequently, when the Belgian Government complained of this, the Spanish
Government stated that the transfers could not be authorized unless it, were shown that the foreign
currency was to be used to repay debts arising from the genuine importation of foreign capital into
Spain, and that this had not been established.
In 1948 three Spanish holders of recently acquired Barcelona Traction sterling bonds
petitioned that court of Reus (Province of Tarragona) for a declaration adjudging the company
bankrupt, on account of failure to pay the interest on the bonds. On 12 February 1948, a judgment
was given declaring the company bankrupt and ordering the seizure of the assets of Barcelona
Traction and of two of its subsidiary companies.
Pursuant to this judgment, the principal management personnel of the two companies were
dismissed and Spanish directors appointed. Shortly afterward, these measures were extended to
the other subsidiary companies. New shares of the subsidiary companies were created, which were
sold by public auction in 1952 to a newly-formed company, Fuerzas Electricas ~de Cataluina, S.A.
(Fecsa), which thereupon acquired complete control of the undertaking in Spain.
Proceedings were brought without success in the Spanish courts by various companies or
persons. According to the Spanish Government, 2,736 orders were made in the case and 494
judgments given by lower and 37 by higher courts before it was submitted to the International
Court of Justice. The Court found that in 1948 Barcelona Traction, which had not received a
judicial notice of the bankruptcy proceedings, and was not represented before the Reus court, took
no proceedings in the Spanish courts until 18th June and thus did not enter a plea of opposition
against the bankruptcy judgment within the time-limit of eight days from the date of publication
of the judgment laid down in Spanish legislation. The Belgian Government contends, however,
that the notification and publication did not comply with the relevant legal requirements and that
the eight-day time-limit never began to run.
 Representations were made to the Spanish Government by the British, Canadian, United
States and Belgian Governments as from 19481 or 1949. The interposition of the Canadian
Government ceased entirely in 1955.
Ruling:
Does a state assume an obligation concerning the treatment of foreign investments based
on general international law, once the state admits foreign investments or foreign nationals into its
territory?
Ruling:
Yes. A state assumes an obligation concerning the treatment of foreign investments based
on general international law, once the state admits foreign investments or foreign nationals into its
territory. It is highly imperative to draw a distinction between those obligations of a state toward
the international community as a whole and those arising from the field of diplomatic protection.
It is only the party to whom an international obligation is due can bring a claim if a breach of an
obligation that is the subject of diplomatic protection occurs.

The Court took cognizance of the great amount of documentary and other evidence
submitted by the Parties and fully appreciated the importance of the legal problems raised by the
allegation which was at the root of the Belgian claim and which concerned denials of justice
allegedly committed by organs of the Spanish State. However, the possession by the Belgian
Government of a right of protection was a prerequisite for the examination of such problems. Since
no jus standi before the Court had been established, it was not for the Court to pronounce upon
any other aspect of the case.

The Court observed that when a State admitted into its territory foreign investments or
foreign nationals it was bound to extend to them the protection of the law and assumed obligations
concerning the treatment to be afforded them. But such obligations were not absolute. In order to
bring a claim in respect of the breach of such an obligation, a State must first establish its right to
do so.

In the field of diplomatic protection, international law was in continuous evolution and was
called upon to recognize institutions of municipal law. In municipal law, the concept of the
company was founded on a firm distinction between the rights of the company and those of the
shareholder. Only the company, which was endowed with legal personality, could take action in
respect of matters that were of a corporate character.

A wrong done to the company frequently caused prejudice to its shareholders, but this did
not imply that both were entitled to claim compensation. Whenever a shareholder’s interests were
harmed by an act done to the company, it was to the latter that he had to look to institute appropriate
action. An act infringing only the company’s rights did not involve responsibility towards the
shareholders, even if their interests were affected. International law had to refer to those rules
generally accepted by municipal legal systems. An injury to the shareholder’s interests resulting
from an injury to the rights of the company was insufficient to found a claim.
 Where it was a question of an unlawful act committed against a company representing
foreign capital, the general rule of international law authorized the national State of the company
alone to exercise diplomatic protection for the purpose of seeking redress. No rule of international
law expressly conferred such a right on the shareholder’s national State.

The Court considered whether there might not be, in the present case, special circumstances
for which the general rule might not take effect. Two situations need to be studied: (a) the case of
the company having ceased to exist, and (b) the case of the protecting State of the company lacking
the capacity to take action.
 REPARATIONS FOR THE INJURIES SUFFERED IN THE SERVICE OF THE UN
1970
Facts:
As a consequence of the assassination in September 1948, in Jerusalem, of Count Folke
Bernadotte, the United Nations (UN) requested an advisory opinion from the International Court
of Justice. It asked the Court whether the United Nations had the capacity to bring an international
claim against the State responsible with a view to obtaining reparation for damage caused to the
Organization and to the victim. If this question were answered in the affirmative, it was further
asked in what manner the action taken by the United Nations could be reconciled with such rights
as might be possessed by the State of which the victim was a national.
Issue:
Whether or not the United Nations has the capacity of to bring a claim against a State.
Ruling:
YES. The Court held that the Organization was intended to exercise functions and rights
which could only be explained on the basis of the possession of a large measure of international
personality and the capacity to operate upon the international plane. It followed that the
Organization had the capacity to bring a claim and to give it the character of an international action
for reparation for the damage that had been caused to it. It must be acknowledged that its Members,
by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it
with the competence required to enable those functions to be effectively discharged.
Accordingly, the Court ruled that the Organization is an international person. That is not
the same thing as saying that it is a State, which it certainly is not, or that its legal personality and
rights and duties are the same as those of a State. It does not even imply that all its rights and duties
must be upon the international plane, any more than all the rights and duties of a State must be
upon that plane. What it does mean is that it is a subject of international law and capable of
possessing international rights and duties, and that it has capacity to maintain its rights by bringing
international claims.
Although, according to the traditional rule, diplomatic protection had to be exercised by
the national State, the Organization should be regarded in international law as possessing the
powers which, even if they are not expressly stated in the Charter, are conferred upon the
Organization as being essential to the discharge of its functions. The Organization may require to
entrust its agents with important missions in disturbed parts of the world. In such cases, it is
necessary that the agents should receive suitable support and protection.
The Court therefore found that the Organization has the capacity to claim appropriate
reparation, including also reparation for damage suffered by the victim or by persons entitled
through him. The risk of possible competition between the Organization and the victim’s national
State could be eliminated either by means of a general convention or by a particular agreement in
any individual case.
 MAVROMMATIS CASE (GREECE vs. BRITAIN)
August 30, 1924

Facts:

Mavrommatis, a Greek national, was in 1914 granted concessions by the Ottoman

authorities for certain public works in what later became the British mandated territory of
Palestine. The concessions were related to constructions and working of electric tramway systems
and supply of light power and electric power in Jerusalem and Jaffa, as well as irrigation systems.
Mavrommatis tried to claim from the concessions granted via ordinary channels, but such claims
were unheeded. Britain refused to recognize Mavrommatis’ rights.

Ordinary channels resorted to by Mavrommatis: In long correspondence, Mavrommatis

and his solicitors urged his rights with respect to these concessions in the British Colonial Office.
He also got friends to write privately to persons in the British Foreign Office upon the subject. The
dispute was initially between a private person (Mavrommatis) and a State (Britain).

Greece took up Mavrommatis’ case because the latter is a Greek subject. Greece filed a
case before the PCIJ alleging that Great Britain, through the Palestine Government, had refused to
recognize the concession in Jerusalem and Jaffa, principally by having granted to a Mr. Rutenberg
concessions partially overlapping those enjoyed by Mavrommatis, and accordingly sought
compensation.

Britain imposed its preliminary objection and argued that Greece had no standing in this
case. Greece argued that it is entitled to protect its subjects such as Mavrommatis when they have
been injured by acts contrary to international law by another state.

Issue:
Whether or not there was a dispute

Ruling:

Yes. A dispute is a disagreement on a point of law or fact, a conflict of legal views or of

interests between two persons. There is a dispute because Greece is asserting its own rights by
claiming from Britain indemnity on the ground that Mavrommatis, one of its subjects, has been
treated by Palestine or British authorities in a manner incompatible with certain international
obligations which they were bound to observe.

Art 26 of the Mandate of Palestine (legal document which formalized the creation of 2
British protectorates– Palestine, to include a national home for the Jewish people, and Transjordan;
took effect in 1923, following the ratification of The Treaty of Lausanne) provides that the dispute
must be between the Mandatory and another member of the League of Nations. Although at first,
the dispute was between a private person (Mavrommatis) and a State (Britain), the Greek
government took up the case. The dispute entered into a new phase; it entered the domain of
international law, and became a dispute between the 2 States.
The dispute could not, in the circumstances of the case, be settled by negotiation.
For the case to come under PCIJ jurisdiction, it must be that the dispute cannot be settled by
negotiation.

The Court recognized that the State does not substitute itself for the subject; it is asserting
its own rights and, consequently, factors foreign to the previous discussions between the individual
and the competent authorities may enter into the diplomatic negotiations. But it recognized that
the character of the dispute may render unnecessary the renewed discussion on opposing
contentions from which the original dispute arose. It is a matter of consideration in each case. The
Court said that it isn’t necessary to have lengthy correspondences to prove that negotiation can no
longer be had. In the case, it looked at the correspondences which evidenced the unwillingness of
the British government to negotiate and meet the claims of Mavrommatis.

The Court begins by defining the question before it. It considers that the problem to be
decided is not merely whether the nature and subject of the dispute are such that the Court derives
from them jurisdiction to entertain it, but also whether the conditions upon which the exercise of
this jurisdiction is dependent are all fulfilled. These conditions are: (a) that the question must
constitute a dispute between the Mandatory and another Member of the League of Nations; (b)
that this dispute cannot be settled by negotiation, and (c) that it relates to the interpretation or
application of the clauses of the Mandate for Palestine (Article 26).

As regards point (a), the Court is satisfied that there exists a dispute and that Greece is a
Member of the League of Nations. In the next place, it considers that, though the dispute originated
in an injury to a private interest, Greece is asserting a right of its own, namely the right to ensure
that the rules of international law are respected as regards its subjects. Moreover, once a State has
taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the
latter, the State is sole claimant. For these reasons the Court regards the first condition as fulfilled.
 CERTAIN EXPENSES OF THE UNITED NATIONS

Facts:

Two United Nations programs, ONUC and UNEF, were challenged in the International
Court of Justice (ICJ) as improper expenditures of United Nations funds on the ground that they
were performed by the wrong organs of the United Nations, or that they did not further a required
purpose of the organization. Opponents of the programs argued that they were coercive in nature
and should be performed by the United Nations Security Council, rather than the General
Assembly which was carrying them out.

Issue:

Do the expenditures authorized in certain General Assembly resolutions constitute

expenses of the Organization' within the meaning of Article 17, paragraph 2, of the Charter of the
United Nations?"

Ruling:

By nine votes to five the Court declared that the 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.
The Court found that the distinction between "administrative budgets" and "operational budgets"
had not been absent from the minds of the drafters of the Charter since it was provided in paragraph
3 of the same Article that the General Assembly "shall examine the administrative budgets" of the
specialized agencies: if the drafters had intended that paragraph 1 should be limited to the
administrative budget of the United Nations organization itself, the word "administrative" would
have been inserted in paragraph 1 as it had been in paragraph 3. Actually, the practice of the
Organization had been from the outset to include in the. budget items which would not fall within
my of the definitions of "administrative budget" which hail been advanced.

Every year from 1947 through 1959 the resolutions on these unforeseen and extraordinary
expenses have been adopted without a dissenting vote, except for 1952.1953 and 1954, owing to
the fact that in those years the resolution included the specification of controversial item-United
Nations Korean war decorations. Finally, in 1961, the report of the Working Group of Fiftieth on
the Examination of the Administrative and Budgetary Procedures d the United Nations had
recorded the adoption without opposition of a statement that "investigations and observation
operations undertaken by the Organization to prevent possible aggression should be financed as
part of the regular budget of the United Nations." Taking these: facts into consideration, the Court
concluded that there was no justification for reading into the text of Article 17, paragraph 1, any
limiting or qualifying word before the word "budget.”
 NICARAGUA vs. US
Facts:

The United States challenged the jurisdiction of the I.C.J when it was held responsible for
illegal military and paramilitary activities in and against Nicaragua in the suit the plaintiff brought
against the defendant in 1984. Though a declaration accepting the mandatory jurisdiction of the
Court was deposited by the United States in a 1946, it tried to justify the declaration in a 1984
notification by referring to the 1946 declaration and stating in part that the declaration “shall not
apply to disputes with any Central American State.”

Apart from maintaining the ground that the 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 the jurisdiction to entertain a dispute between two states, if they both accept the
Court’s jurisdiction, within the jurisdiction of the International Court of Justice? Where no grounds
exist to exclude the application of a state, is the application of such a state to the International
Court of Justice admissible?

Ruling:

Yes. The jurisdiction of the Court to entertain a dispute between two states if each of the
States accepted the Court’s jurisdiction is within the jurisdiction of the International Court of
Justice. Even though Nicaragua declaration of 1929 was not deposited with the Permanent Court,
because of the potential effect it had that it would last for many years, it was valid. Thus, it
maintained its effect when Nicaragua became a party to the Statute of the 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 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.

Yes. When no grounds exist to exclude the application of a state, the application of such a
state to the International Court of Justice is admissible. The five grounds upon which the United
States challenged the admissibility of Nicaragua’s application were that the plaintiff failed because
there is no “indispensable parties” rule when it could not bring forth necessary parties, Nicaragua’s
request of the Court to consider the possibility of a threat to peace which is the exclusive province
of the Security Council, failed due to the fact that 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 is a party.

Although the questions of jurisdiction and admissibility are primarily based on the
principle that the I.C.J. has only as much power as that agreed to by the parties, these can be quite
complicated. The 1946 declaration of the United States and the 1929 declaration of Nicaragua was
the main focus of the case on declaration and each of these declarations pointed out the respective
parties’ intent as it related to the I.C.J’s jurisdiction.
 Armed Activities on the Territory of the Congo
(Democratic Republic of Congo vs Uganda)
Year of decision: 2005; ICJ

Facts:

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.

Issue:

1. Whether or not Uganda an occupying power in the DRC?

2. Did Uganda violate principles prohibiting intervention and use of force though its
occupation?
3. 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?

Ruling:

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 and scope. 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.
 SAUDI ARABIA V. NELSON

Facts:

Nelson, a monitoring system engineer at a hospital in Riyadh, Saudi Arabia, was recruited
in the United States for employment. Upon discovery of safety defects in the hospital’s oxygen
and nitrous oxide lines, Nelson disclosed this to the hospital officials as well as the Saudi
government commission. Several months after Nelson was told by the hospital officers to ignore
the problems, he was called into the hospital’s security office and arrested.

He was summarily transported to a jail cell where he was chained, beaten, tortured and kept
without food for four days. Nelson was released after he had spent thirty-nine days in prison and
was allowed to leave the country. Upon his arrival in the United States, the Nelson’s filed suit
against Saudi Arabia seeking damages for personal injury. The Nelsons’ also claimed a basis of
recovery in Saudi Arabia for its failure to inform him about the hidden dangers associated with his
employment. This judgment was however appealed by Saudi Arabia.

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?

Ruling:

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.

The hospital’s employment practices and its disciplinary procedures have no clear
connection to the country. The Act does not grant the Nelsons access to the U.S. courts because of
the absent nexus to the United States. When comparing restrictive to absolute theory of foreign
sovereign immunity, 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.
 THE TINOCO ARBITRATION (Great Britain v. Costa Rica)
1923

Facts:

The former government Costa Rica was the Tinoco regime. Under the said regime, it
concluded certain contracts with British Corporations. After the retirement of Frederico Tenneco,
the old constitution was restored. The Law of Nullities was passed. It annulled the contracts
concluded during the Tinoco regime.

However, 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. It 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. On the other hand, the Costa Rica
claimed that Great Britain was estopped from enforcing the contract by its earlier nonrecognition
of the Tinoco regime.

Issue:

Whether or not the nonrecognition of a new government by other governments destroy the
de facto status of the government.

Ruling:

NO. The arbitrator ruled in favor of Great Britain.

A government that establishes itself and maintains a peaceful de facto administration need
not to conform to previous constitution. The nonrecognition of the government by other
governments does not destroy the de facto status of the government.

The non-recognition by other nations of a government claiming to be a national personality,

is usually appropriate evidence that it has not attained the independence and control entitling it by
international law to be classed as such. But when recognition of a government is by such nations
determined by inquiry, not into its de facto sovereignty and complete governmental control, but
into its illegitimacy or irregularity of origin, their non-recognition loses something of evidential
weight on the issue with which those applying the rules of international law are alone concerned.
The non-recognition for any reason, however, cannot outweigh the evidence disclosed by this
record as to the de facto character of Tinoco's government, according to the standard set by
international law. Thus, unrecognized governments thus may have the power to form valid
contracts.
 2005 World Summit Outcome Report, UNGA Resolution 60/1, A/RES/60/1
October 24, 2005

Facts:

The 2005 World Summit Outcome (General Assembly resolution 60/1) has set a new work
plan for the international community including the United Nations system by reaffirming the
centrality and the global partnership required to achieve those goals. It also renewed commitments
to the outcomes of the other UN conferences and summits, and address the current
"implementation gaps". The Summit Outcome as a whole provides comprehensive policy guidance
for the ongoing work of the UN Secretariat and the wider UN system in four broad areas, namely
development, including meeting the special needs of Africa; peace and security; human rights and
the rule of law; and strengthening of the United Nations. All UN entities including the regional
commissions have been requested to review their programme of work in light of this guidance.

As regards Africa, the Summit Outcome highlighted several issues including the need for
special measures to address the challenges of poverty reduction and sustainable development by
promoting a comprehensive and sustainable solution to the external debt problems of African
countries, building trade capacity to accelerate Africa's integration into the international trading
system, implementation of the NEPAD Comprehensive African Agricultural Development Plan;
building peacekeeping capacity further, in cooperation with regional organizations; and providing
assistance to strengthen the capacity of African countries in addressing HIV/AIDS and other
infectious diseases.

In his report to the General Assembly entitled, Implementation of decisions from the 2005
World Summit Outcome for action by the Secretary-General (A/60/430 of 25 October 2005), the
Secretary-General outlined a range of follow-up actions to be implemented by UN departments or
entities. As an integral part of the United Nations Secretariat, ECA has been closely involved in a
number of follow-up actions involving global coordination. These efforts have, in particular,
focused on (i) the provision of inputs for the comprehensive review of mandates to be undertaken
by the General Assembly (GA); (ii) close involvement, as part of the group of regional
commissions, in the work of the Executive Committee of Economic and Social Affairs (EC-ESA)
in response to the Summit Outcome; and (iii) provision of inputs to facilitate the work of the
Secretary-General's Panel on system-wide Coherence.

In addition to its involvement in follow-up efforts at the global level, the ECA secretariat
has launched some policy initiatives of its own in order to reorient and reposition itself and improve
on the delivery of its services to member States. In this connection, the Executive Secretary has
established a Change Management TaskForce to help redefine ECA's priorities, improve cost-
effectiveness, and identify key actions for strengthening management and other organizational
processes. The objectives and expected outcomes of the Task Force is contained in a separate note
to be presented to this session of the Commission.

SUMMARY:

The 2005 World Summit Outcome Document is the resolution in which UN member states
set out the parameters for the Responsibility to Protect populations from genocide, war crimes,
crimes against humanity and ethnic cleansing during the UN General Assembly’s 60th session in
2005.

The relevant paragraphs are as follows:

• Each individual State has the responsibility to protect its populations from
genocide, war crimes, ethnic cleansing and crimes against humanity. This
responsibility entails the prevention of such crimes, including their incitement,
through appropriate and necessary means. We accept that responsibility and will
act in accordance with it. The international community should, as appropriate,
encourage and help States to exercise this responsibility and support the United
Nations in establishing an early warning capability.

• The international community, through the United Nations, also has the
responsibility to use appropriate diplomatic, humanitarian and other peaceful
means, in accordance with Chapters VI and VIII of the Charter, to help protect
populations from genocide, war crimes, ethnic cleansing and crimes against
humanity. In this context, we are prepared to take collective action, in a timely and
decisive manner, through the Security Council, in accordance with the Charter,
including Chapter VII, on a case-by-case basis and in cooperation with relevant
regional organizations as appropriate, should peaceful means be inadequate and
national authorities manifestly fail to protect their populations from genocide, war
crimes, ethnic cleansing and crimes against humanity. We stress the need for the
General Assembly to continue consideration of the responsibility to protect
populations from genocide, war crimes, ethnic cleansing and crimes against
humanity and its implications, bearing in mind the principles of the Charter and
international law. We also intend to commit ourselves, as necessary and
appropriate, to helping States build capacity to protect their populations from
genocide, war crimes, ethnic cleansing and crimes against humanity and to
assisting those which are under stress before crises and conflicts break out.

The implications of the World Summit Outcome for the UN are many. Besides requiring
that UN organizations adjust their priorities and programmes to carry forward the new
commitments, the Summit demands stronger system-wide coherence across the various
development-related agencies, funds and programmes of the UN. In response to this request, the
Secretary-General commissioned a high-level panel of prominent and experienced international
figures from within and outside the UN system, to develop concrete and comprehensive analysis
in this regard. The panel is expected to complete its work by June 2006, to allow for formal
presentation of its recommendations to the next session of the General Assembly in September
2006 and possible implementation in 2007.

The overarching objective of the study is to examine options for the rationalization of UN
operational activities to maximize available resources for relief and development and minimize
costs. As such, the study will explore ways of fully exploiting synergies between work and the
operational activities of the system. It will also address how the UN system works and can best
exercise its comparative advantage with other partners such as the Bretton Woods institutions, the
European Union and other regional actors, donors, civil society and the private sector. While the
primary focus of the study is to increase impact at the country level, in making proposals for
improved management, coordination and effectiveness, the study will also make recommendations
with regard to linkages in the work of the UN at the global, regional and country levels. The work
of the panel is intended to lay the groundwork for a fundamental restructuring of UN operational
activities in the environmental, humanitarian and development fields.

The core UN entities in the economic and social fields have provided inputs and
suggestions to the panel and its secretariat in support of their work. The five regional commissions
including ECA have also come together to adopt a common strategic approach in responding to
concerns about their future role in a reformed architecture of development cooperation, particularly
as it relates to their technical cooperation activities.