Chapter I.docx

ARTICLE VII Executive Department SECTION 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the Government or government-owned and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law. SECTION 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

ARTICLE XVIII Transitory Provisions SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. 1.) Bayan I.

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

THE FACTS

The Republic of the Philippines and the United States of America entered into an agreement called the Visiting Forces Agreement (VFA). The agreement was treated as a treaty by the Philippine government and was ratified by then-President Joseph Estrada with the concurrence of 2/3 of the total membership of the Philippine Senate. The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits, and further defines the rights of the U.S. and the Philippine governments in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies. Petitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987 Constitution, which provides that “foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate . . . and recognized as a treaty by the other contracting State.”

1

II. THE ISSUE Was the VFA unconstitutional? III. THE RULING [The Court DISMISSED the consolidated petitions, held that the petitioners did not commit grave abuse of discretion, and sustained the constitutionality of the VFA.] NO, the VFA is not unconstitutional. Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state. There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution . . . the provision in [in §25, Article XVIII] requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it. xxx

xxx

xxx

This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase. Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use. Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty. xxx

xxx

xxx

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

2

2.) PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINESvs. HEALTH SECRETARY FRANCISCO T. DUQUE III FACTS: On October 28, 1986, Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino by virtue of the legislative powers granted to the president under the Freedom Constitution. The Milk Code states that the law seeks to give effect to Article 112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes. The Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides that State Parties should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society, specially parents and children, are informed of the advantages of breastfeeding. The DOH issued RIRR which was to take effect on July 7, 2006. A petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Revised Implementing Rules and Regulations of The “Milk Code,” assailing that the RIRR was going beyond the provisions of the Milk Code, thereby amending and expanding the coverage of said law. ISSUE: Sub-Issue: W/N the pertinent int’l agreements entered into by the Phil are part of the law of the land and may be implemented by DOH through the RIRR. If yes, W/N the RIRR is in accord with int’l agreements? MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave abuse of discretion amounting to lack of excess of jurisdiction and in violation of the Constitution by promulgating the RIRR. HELD: SUB-ISSUE: Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by transformation (thru constitutional mechanism such as local legislation) or incorporation (mere constitutional declaration i.e treaties) The ICBMS and WHA resolutions were not treaties as they have not been concurred by 2/3 of all members of the Senate as required under Sec, 21, Art 8. However, the ICBMS had been transformed into domestic law through a local legislation such as the Milk Code. The Milk Code is almost a verbatim reproduction of ICBMS. No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions pertinent WHA resolutions are customary int’l law that may be deemed part of the law of 3

the land. For an int’l rule to be considered as customary law, it must be established that such rule is being followed by states because they consider it as obligatory to comply with such rules (opinion juris). The WHO resolutions, although signed by most of the member states, were neither enforced or practiced by at least a majority of member states. Unlike the ICBMS whereby legislature enacted most of the provisions into the law via the Milk Code, the WHA Resolutions (specifically providing for exclusive breastfeeding from 0-6 months, breastfeeding up to 24 Months and absolutely prohibiting ads for breastmilk substitutes) have not been adopted as domestic law nor are they followed in our country as well. The Filipinos have the option of how to take care of their babies as they see fit. WHA Resolutions may be classified as SOFT LAW – non-binding norms, principles and practices that influence state behavior. Soft law is not part of int’l law.

Main issue: Yes. Some parts of the RIRR were not in consonance with the Milk Code such as Sec. 4(f) >advertising, promotions of formula are prohibited, Sec 11 -> prohibitions for advertising breastmilk substitutes intended for infants and young children uo to 24 months And Sec 46 -> sanctions for advertising . These provisions are declared null and void. The DOH and respondents are prohibited from implementing said provisions.

4

3.) THE PROVINCE OF NORTH COTABATO, et al . v . THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES, et al . FACTS: President Gloria Macapagal-Arroyo, in line with the government‘s policy of pursuing peace negotiations with the Moro Islamic Liberation Front (MILF), asked Prime Minister Mahathir Mohammad to convince the MILF to continue negotiating with the government. MILF, thereafter, convened its Central Committee and decided to meet with the Government of the Republic of the Philippines (GRP). Formal peace talks were held in Libya which resulted to the crafting of the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) which consists of three (3) aspects: a.) security aspect; b.) rehabilitation aspect; and c.) ancestral domain aspect. Various negotiations were held which led to the finalization of the Memorandum of Agreement on the Ancestral Domain (MOA-AD). The said memorandum was set to be signed last August 5, 2008. In its body, it grants ―the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro to the Bangsamoro Juridical Entity (BJE). The latter, in addition, has the freedom to enter into any economic cooperation and trade relation with foreign countries. ―The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE. The MOA-AD further provides for the extent of the territory of the Bangsamoro. It describes it as ―the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region. With regard to governance, on the other hand, a shared responsibility and authority between the Central Government and BJE was provided. The relationship was described as ―associative. With the formulation of the MOA-AD, petitioners aver that the negotiation and finalization of the MOA-AD violates constitutional and statutory provisions on public consultation, as mandated by Executive Order No. 3, and right to information. They further contend that it violates the Constitution and laws. Hence, the filing of the petition. The Court issued a TRO enjoining the GRP from signing the same. ISSUE: Whether or not the MOA-AD violates the Constitution and the laws. HELD: 1. Yes, the petitions are ripe for adjudication. The failure of the respondents to consult the local government units or communities affected constitutes a departure by respondents from their mandate under EO No. 3. Moreover, the respondents exceeded their authority by the mere act of

5

guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter for judicial review. As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the Court grants the petitioners, petitioners-in-intervention and intervening respondents the requisite locus standi in keeping with the liberal stance adopted in David v. Macapagal- Arroyo. In Pimentel, Jr. v. Aguirre, this Court held: x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to have ripened into a judicial controversy even without any other overt act . Indeed, even a singular violation of the Constitution and/or the law is enough to awaken judicial duty.x x x x By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously alleged to have infringed the Constitution and the laws x x x settling the dispute becomes the duty and the responsibility of the courts. That the law or act in question is not yet effective does not negate ripeness. 2. Yes. The Court finds that there is a grave violation of the Constitution involved in the matters of public concern (Sec 7 Art III) under a state policy of full disclosure of all its transactions involving public interest (Art 2, Sec 28) including public consultation under RA 7160 (Local Government Code of 1991). (Sec 7 ArtIII) The right to information guarantees the right of the people to demand information, while Sec 28 recognizes the duty of officialdom to give information even if nobody demands. The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable safeguards or limitations as may be provided by law. The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that the right to information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or commercial character of the agreement. E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society. 3. a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political subdivision not recognized by law; Yes. The provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it. The concept of association is not recognized under the present Constitution. No province, city, or municipality, not even the ARMM, is recognized under our laws as having an “associative” relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It 6

also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. The BJE is a far more powerful entity than the autonomous region recognized in the Constitution. It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states. Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it – which has betrayed itself by its use of the concept of association – runs counter to the national sovereignty and territorial integrity of the Republic.

The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared CONTRARY TO LAW AND THE CONSTITUTION.

4.) Bayan Muna vs Romulo G. R. No. 159618, February 01, 2011 FACTS: Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary. Rome Statute of the International Criminal Court Having a key determinative bearing on this case is the Rome Statute establishing the International Criminal Court (ICC) with “the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions.” The serious crimes adverted to cover those considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression. On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome Statute which, by its terms, is “subject to ratification, acceptance or approval” by the signatory states. As of the filing of the instant petition, only 92 out of the 139 signatory countries 7

appear to have completed the ratification, approval and concurrence process. The Philippines is not among the RP-US Non-Surrender Agreement. On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement, hereinafter) between the USA and the RP. Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and put in effect the Agreement with the US government. In esse, the Agreement aims to protect what it refers to and defines as “persons” of the RP and US from frivolous and harassment suits that might be brought against them in international tribunals. It is reflective of the increasing pace of the strategic security and defense partnership between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by and between the US and 33 other countries. The Agreement pertinently provides as follows: 1. For purposes of this Agreement, “persons” are current or former Government officials, employees (including contractors), or military personnel or nationals of one Party. 2. Persons of one Party present in the territory of the other shall not, absent the express consent of the first Party, (a) be surrendered or transferred by any means to any international tribunal for any purpose, unless such tribunal has been established by the UN Security Council, or (b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to any international tribunal, unless such tribunal has been established by the UN Security Council. 3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third country, the [US] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the Republic of the Philippines [GRP]. 4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country, the [GRP] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the [US].

8

5. This Agreement shall remain in force until one year after the date on which one party notifies the other of its intent to terminate the Agreement. The provisions of this Agreement shall continue to apply with respect to any act occurring, or any allegation arising, before the effective date of termination. In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the nonsurrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes constituted a legally binding agreement under international law; and that, under US law, the said agreement did not require the advice and consent of the US Senate. In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as without force and effect. ISSUE: Whether or not the RP-US NON SURRENDER AGREEMENT is void ab initio for contracting obligations that are either immoral or otherwise at variance with universally recognized principles of international law. RULING: The petition is bereft of merit. Validity of the RP-US Non-Surrender Agreement Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement. Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines, practices, and jargons––is untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles of international law and international jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all nations. An exchange of notes falls “into the category of inter-governmental agreements,” which is an internationally accepted form of international agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows: An “exchange of notes” is a record of a routine agreement that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.

9

In another perspective, the terms “exchange of notes” and “executive agreements” have been used interchangeably, exchange of notes being considered a form of executive agreement that becomes binding through executive action. On the other hand, executive agreements concluded by the President “sometimes take the form of exchange of notes and at other times that of more formal documents denominated ‘agreements’ or ‘protocols.’” As former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts: The point where ordinary correspondence between this and other governments ends and agreements – whether denominated executive agreements or exchange of notes or otherwise – begin, may sometimes be difficult of ready ascertainment. x x x It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the NonSurrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be bound––is a recognized mode of concluding a legally binding international written contract among nations. Agreement Not Immoral/Not at Variance with Principles of International Law Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at variance with allegedly universally recognized principles of international law. The immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, “leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; x x x it precludes our country from delivering an American criminal to the [ICC] x x x.”63 The above argument is a kind of recycling of petitioner’s earlier position, which, as already discussed, contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its treaty obligations under the Rome Statute, contrary to international law principles. The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor General, “is an assertion by the Philippines of its desire to try and punish crimes under its national law. x x x The agreement is a recognition of the primacy and competence of the country’s judiciary to try offenses under its national criminal laws and dispense justice fairly and judiciously.” Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and Americans committing high crimes of international concern to escape criminal trial and punishment. This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to the Rome Statute have been met. For perspective, what the Agreement contextually prohibits is the surrender by either party of individuals to 10

international tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the crime under its existing laws. With the view we take of things, there is nothing immoral or violative of international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by both Philippine laws and the Rome Statute.

5.) Mejoff V. Director Of Prisons (1951) FACTS: 

Boris Mejoff, an alien of Russian descent who was brought to this country from Shanghai as a secret operative by the Japanese forces during the latter's regime in these Islands. (The petitioner's entry into the Philippines was not unlawful; he was brought by the armed and belligerent forces of a de facto government whose decrees were law during the occupation.)



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 (1st petition) - 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: W/N the writ of habeas corpus should be granted since he was detained longer than a reasonable time.

11

HELD: YES. 

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



Sec. 3, Art. II of the 1935 Constitution “adopts the generally accepted principles of international law as part of the law of the Nation,” which means that the incorporation doctrine holds sway here



The Universal Declaration Of Human Rights proclaims the right to life and liberty and all other fundamental rights as applied to all human beings, stating that “all human beings are born free and equal in degree and rights” (Art. 1); that “everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other status” (Art. 2); that “every one has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law” (Art. 8); that “no one shall be subjected to arbitrary arrest, detention or exile” (Art. 9 ), etc.



The writ of habeas corpus will issue commanding the respondents to release the petitioner from custody upon these terms: that the petitioner shall be placed under reasonable surveillance c/o 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

6.) Government of Hong Kong Special Administrative Region v. Judge Olalia and Muñoz, G.R. No. 153675, 29 April 2007. FACTS: Private respondent Muñoz was charged before the Hong Kong Court with three (3) counts of the offense of “accepting an advantage as agent,” in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. Petitioner Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of private respondent. After hearing, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high “flight risk.” Judge Bernardo, Jr. inhibited himself from further hearing and the case was raffled off to another judge. Private respondent filed a motion for reconsideration of the Order denying his application for bail. This was granted by respondent judge. Petitioner filed an urgent motion to vacate the above Order, but it was denied. Hence, the instant petition. 12

ISSUE: Whether or not right to bail can be avail in extradition cases. HELD: YES. The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law. On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons, this Court, in granting bail to a prospective deportee, held that under the Constitution, the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process. If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue. Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired.

13

NORTH SEA CONTINENTAL SHELF CASES Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement for the formation of customary international law: (1) State practice (the objective element) and (2) opinio juris (the subjective element). In these cases, the Court explained the criteria necessary to establish State practice – widespread and representative participation. It highlighted that the practices of those States whose interests were specially affected by the custom were especially relevant in the formation of customary law. It also held that uniform and consistent practice was necessary to demonstrate opinio juris – opinio juris is the belief that State practice amounts to a legal obligation. The North Sea Continental Self Cases also dispelled the myth that duration of the practice (i.e. the number of years) was an essential factor in forming customary international law. The case involved the delimitation of the continental shelf areas in the North Sea between Germany and Denmark and Germany and Netherlands beyond the partial boundaries previously agreed upon by these States. The parties requested the Court to decide the principles and rules of international law that are applicable to the above delimitation because the parties disagreed on the applicable principles or rules of delimitation. Netherlands and Denmark relied on the principle of equidistance (the method of determining the boundaries in such a way that every point in the boundary is equidistant from the nearest points of the baselines from which the breath of the territorial sea of each State is measured). Germany sought to get a decision in favour of the notion that the delimitation of the relevant continental shelf was governed by the principle that each coastal state is entitled to a just and equitable share (hereinafter called just and equitable principle/method). Contrary to Denmark and Netherlands, Germany argued that the principle of equidistance was neither a mandatory rule in delimitation of the continental shelf nor a rule of customary international law that was binding on Germany. The Court was not asked to delimit because the parties had already agreed to delimit the continental shelf as between their countries, by agreement, after the determination of the Court on the applicable principles. Facts of the Case: 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.

North Sea Continental Shelf Cases (commons.wikimedia.org) 14

Questions before the Court (as relevant to this post): 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? The Court’s Decision: 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. Relevant Findings of the Court: 1. Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6, binding on Germany? 1. 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). 2. 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). 3. Note: 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 15

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). 4. The Court held that the existence of a situation of estoppel would have allowed Article 6 to become binding on Germany – but held that Germany’s action did not support an argument for estoppel. The Court also held that the mere fact that Germany may not have specifically objected to the equidistance principle as contained in Article 6, is not sufficient to state that the principle is now binding upon it. 5. In conclusion, the Court held that Germany had not acted in any manner so as to incur obligations contained in Article 6 of the Geneva Convention. The equidistance–special circumstances rule was not binding on Germany by way of treaty law. 2. Nature of the customary international law obligation: Is Germany bound by the provisions of Article 6 of the Geneva Convention in so far as they reflect customary international law? 6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of general international law on the subject of continental shelf delimitation’ and that it existed independently of the Convention. Therefore, they argued, Germany is bound by the subject matter of Article 6 by way of customary international law. 7. To decide if the equidistance principle bound Germany by way of customary international law, the Court examined (1) the status of the principle contained in Article 6 as it stood when the Convention was being drawn up; and (2) its status after the Convention came into force. (a) What was the customary law status of Article 6 at the time of drafting the Convention? 8. 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 held: “… Article 6 is one of those in respect of which, under the reservations article of the Convention (Article 12) reservations may be made by any State on signing, ratifying or acceding, – for speaking generally, it is a characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making unilateral reservations may, within certain limits, be admitted; whereas this cannot be so in the case of general or customary law rules and obligations which, by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favor…. The normal inference would therefore 16

be that any articles that do not figure among those excluded from the faculty of reservation under Article 12, were not regarded as declaratory of previously existing or emergent rules of law …” (see para 65 for a counter argument and the Court’s careful differentiation) (b) Did the provisions in Article 6 on the equidistance principle attain the customary law status after the Convention came into force? 9. 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). 10. 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. Widespread and representative participation 11. 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. Duration 12. 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. It held that: “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.” Opinio juris

17

13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case), in so far as those acts or omissions were done following a belief that the said State is obligated by law to act or refrain from acting in a particular way. (For more on opinio juris click here). 14. The Court examined 15 cases where States had delimited their boundaries using the equidistance method, after the Convention came into force (paras. 75 -77). The Court concluded that even if there were some State practice in favour of the equidistance principle, the Court could not deduct the necessary opinio juris from this State practice. The North Sea Continental Shelf Cases confirmed that both State practice (the objective element) and opinio juris (the subjective element) are essential pre-requisites for the formation of a customary law rule. This is consistent with Article 38 (1) (b) of the Statute of the ICJ. The Court explained the concept of opinio jurisand the difference between customs (i.e. habits) and customary law: “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e, the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.” (Para 77). 15. The Court concluded that the equidistance principle was not binding on Germany by way of treaty or customary international law. In the case of the latter, the principle had not attained a customary international law status at the time of the entry into force of the Geneva Convention or thereafter. As such, the Court held that the use of the equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) Date of Judgment: 27 June 1986 On 9 April 1984, Nicaragua filed an Application instituting proceedings against the United States of America concerning a dispute relating to responsibility for military and paramilitary activities in and against Nicaragua. One of the measures required the United States to immediately cease and refrain from any action restricting access to Nicaraguan ports, and, in particular, the laying of mines. On 18 January 1985, the United States announced that it intended not to participate in any further proceedings relating to this case.

In its Judgment of 27 June 1986, the Court rejected the justification of collective self-defence advanced by the United States and stated that it had violated the obligations imposed by 18

customary international law not to intervene in the affairs of another State. The Court also found that the United States had violated certain obligations arising from a bilateral Treaty of Friendship, Commerce and Navigation of 1956 and that it must make reparation for all injury caused. The amount of that reparation was to be fixed in subsequent proceedings. In March 1988, the United States maintained its refusal to take part in the case. In September 1991, Nicaragua informed the Court that it did not wish to continue the proceedings. The case was removed from the Court’s List.

South West Africa Case

Facts After WWII, the Union of South Africa, alleging that the Mandate it had been given by the League of Nations to administer South West Africa had lapsed, sought the recognition of the United Nations to the integration of the Territory in the Union. The UN General Assembly asked the Court to advise on the international status of South West Africa (now Namibia). The Court was asked to determine the meaning of the “sacred trust of civilization” accepted by South Africa under the Mandate.

International Court of Justice Judges President Basdevant, Vice-President Guerro, and Judges Alvarez, Hackworth, Winarski, Zorieic, De Visscher, Klaestad, Badawi Pacha, Krylov, Read, Hsu No, Azevedo, and Sir Arnold McNair Area of law General principles of law, Sources of international law Issue

Issue 1. What is the status of the relationship between South West Africa and South Africa?

Decision South West Africa is a territory under the Mandate and South Africa is not competent to modify the international status of South West Africa.

19

Reasons McNair, in a separate opinion, set out how the Court finds and applies general principles of law. Article 38(I)(c) allows the Court to apply “the general principles of law recognized by civilized nations.” This is done by regarding any features or terminology which are reminiscent of the rules and institutions of private law as an indication of policy and principles rather than as directly importing these rules and institutions. 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. There are three general principles which are common to all these institutions: 1. the control of the trustee over the property is limited in one way or another; he is not in the position of the normal complete owner, who can do what he likes with his own, as he is precluded from administering the property for his own personal benefit; 2. the trustee is under some kind of legal obligation, based on confidence and conscience, to carry out the trust or mission confided to him for the benefit of some other person or for some public purposes; and 3. any attempt by one of these persons to absorb the property entrusted to him into his own patrimony would be illegal and would be prevented by the law. As a result, it would be in violation of the trust to absorb South West Africa into South Africa.

ASYLUM CASE Overview: Colombia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru. Was Colombia entitled to make a unilateral and definitive qualification of the offence (as a political offence) in a manner binding on Peru and was Peru was under a legal obligation to provide safe passage for the Peruvian to leave Peru? Facts of the Case: 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.

20

Questions before the Court: (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? The Court’s Decision: Relevant Findings of the Court: (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? 1. 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 (for example, as a political offence) and the territorial State has the right to give consent to this qualification. In the Torre’s case, Colombia has asserted, as the State granting asylum, that it is competent to qualify the nature of the offence in a unilateral and definitive manner that is binding on Peru. The court had to decide if such a decision was binding on Peru either because of treaty law (in particular the Havana Convention of 1928 and the Montevideo Convention of 1933), other principles of international law or by way of regional or local custom. 2. 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 (p. 12, 13). 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 (p. 15). 3. Colombia also argued that regional or local customs support the qualification. The court held that the burden of proof on the existence of an alleged customary law rests with the party making the allegation: “The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party… (that) it is in accordance with a (1) constant and uniform usage (2) practiced by the States in question, and that this usage is (3) the expression of a right appertaining to the State granting asylum (Colombia) and (4) a duty incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute of the Court, which refers to international custom “as evidence of a general practice accepted as law(text in brackets added).” 4. 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 fluctuations and contradictions in State practice did not allow for the uniform usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of State practice). 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 (see North Sea Continental Shelf Cases and Lotus Case for more on opinio juris): “[T]he Colombian Government has referred to a large number of particular cases in which diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule of unilateral and definitive qualification was invoked or … that it was, apart from conventional stipulations, exercised by the States granting asylum as a

21

right appertaining to them and respected by the territorial States as a duty incumbent on them and not merely for reasons of political expediency. The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence.” 5. The court held that even if Colombia could prove that such a regional custom existed, it would not be binding on Peru, because Peru “far from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offence [as “political” in nature] in matters of diplomatic asylum.” (See in this regard, the lesson on persistent objectors. Similarly in the North Sea Continental Shelf Cases the court held ‘in any event the . . . rule would appear to be inapplicable as against Norway in as much as she had always opposed any attempt to apply it to the Norwegian coast’.) 6. 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. (2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage? 7. The court held that there was no legal obligation on Peru to grant safe passage either because of the Havana Convention or customary law. In the case of the Havana Convention, a plain reading of Article 2 results in an obligation on the territorial state (Peru) to grant safe passage only after it requests the asylum granting State (Colombia) to send the person granted asylum outside its national territory (Peru). In this case the Peruvian government had not asked that Torre leave Peru. On the contrary, it contested the legality of asylum granted to him and refused to grant safe conduct. 8. 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 (see paragraph 4 above). “There exists undoubtedly a practice whereby the diplomatic representative who grants asylum immediately requests a safe conduct without awaiting a request from the territorial state for the departure of the refugee…but this practice does not and cannot mean that the State, to whom such a request for safe-conduct has been addressed, is legally bound to accede to it.” (3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and is the continued maintenance of asylum a violation of the treaty? 9. Article 1 of the Havana Convention states that “It is not permissible for States to grant asylum… to persons accused or condemned for common crimes… (such persons) shall be surrendered upon request of the local government.” 10. In other words, the person-seeking asylum must not be accused of a common crime (for example, murder would constitute a common crime, while a political offence would not).The accusations that are relevant are those made before the granting of asylum. Torre’s accusation related to a military rebellion, which the court concluded was not a common crime and as such the granting of asylum complied with Article 1 of the Convention. 11. Article 2 (2) of the Havana Convention states that “Asylum granted to political offenders in legations, warships, military camps or military aircraft, shall be respected to the extent in which allowed, as a right or through humanitarian toleration, by the usages, the conventions or the laws of the country in which granted and in

22

accordance with the following provisions: First: Asylum may not be granted except in urgent cases and for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety.” 12. 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 (pp. 20 -23). The court held: “In principle, it is inconceivable that the Havana Convention could have intended the term “urgent cases” to include the danger of regular prosecution to which the citizens of any country lay themselves open by attacking the institutions of that country… In principle, asylum cannot be opposed to the operation of justice.” 13. In other words, 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. 14. The court held: “In the case of diplomatic asylum the refugee is within the territory of the State. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognised unless its legal basis is established in each particular case.” 15. As a result, exceptions to this rule are strictly regulated under international law. An exception to this rule (asylum should not be granted to those facing regular prosecutions) can occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims. Asylum protects the political offender against any measures of a manifestly extra-legal character which a Government might take or attempt to take against its political opponents… On the other hand, the safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals. Protection thus understood would authorize the diplomatic agent to obstruct the application of the laws of the country whereas it is his duty to respect them… Such a conception, moreover, would come into conflict with one of the most firmly established traditions of Latin-America, namely, non-intervention [for example, by Colombia into the internal affairs of another State like Peru]…. 16. Asylum may be granted on “humanitarian grounds to protect political prisoners against the violent and disorderly action of irresponsible sections of the population.” (for example during a mob attack where the territorial State is unable to protect the offender). Torre was not in such a situation at the time when he sought refuge in the Colombian Embassy at Lima. 17. 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 (p. 25). “The grant of asylum is not an instantaneous act which terminates with the admission, at a given moment of a refugee to an embassy or a legation. Any grant of asylum results in, and in consequence, logically implies, a state of protection, the asylum is granted as long as the continued presence of the refugee in the embassy prolongs this protection.”

23

Nuclear Tests Case (Australia & New Zealand v. France) Brief Fact Summary. Australia and New Zealand (P) requested France (D) to put an halt to atmospheric nuclear test in the South Pacific.

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

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

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

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

24

The Chorzow Factory Case (1928, Germany v Poland) Principle: It is a general principle of law as well as International law, that any breach of agreement creates an obligation to make reparation. Fact: There was an agreement between Germany and Poland and that bilateral treaty was known as the Geneva Upper Silesia convention 1922. It had been provided in that treaty that on transfer of sovereignty of certain territories from Germany to Poland after the 1st world war, existing proprietary right were to be maintained except that the Polish Government was granted a right of expropriation under certain condition with respects of all property belonging to German nationals in Upper Silesia. The present dispute arose when Poland seized to companies there in breach of its international obligation under the Upper Silesia convention of 1922. The Germany demanded compensation from the Poland. Issues: Whether a state can be held responsible for expropriation of alien property. Whether a state can be made responsible at International Law, for acts of Government organs or officers Whether it is a basic rule of international law that reparation is to be made for violations of international law Decision: The reparation of wrong may consist in an indemnity corresponding to the damage which is contrary of International Law. Right or interests of an individual the violation of which rights cause damages are always in a different plain to rights belonging to a state, which rights may also be infringed by the same act. Reasoning: The action of Poland was not expropriation in its real sense, it was rather a seizure of property, right and interest which could not be expropriated even against compensation, save under the special conditions fixed by Art. 7 of the Upper Silesia convention of 1922. in doing so, therefore, Poland acted contrary to its obligations. It is general principle of international law and even a general concept of law that a breach of an agreement involves a duty to make reparation. Reparation is the expendable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself. This case is one of an unlawful expropriation and in such cases expropriating sates must in addition to paying the compensation due in respect of lawful expropriation, pay also damages for any loss continued by the injured party.

25

CORFU CHANNEL CASE https://www.iilj.org/wp-content/uploads/2016/08/Summary-of-and-extract-from-Corfu-ChannelCase-United-Kingdom-v.-Albania.pdf

Barcelona Traction, Light and Power Company Ltd, (Belgium v. Spain) Brief Fact Summary. Belgium (P) claimed Spain (D) should be held accountable for the injury to a Canadian corporation operating in Spain.

Synopsis of Rule of Law. 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.

Facts. On behalf of Belgian nationals (P) who had invested in a Canadian corporation, Belgium (P) sued Spain (D) on the premise that Spain (D) was responsible for acts in violation of international law that had caused injury to the Canadian corporation and its Belgian shareholders (P). -------- LONG BRIEF WITH HIGHLIGHTED CAUSE OF ACTION -----------FACTS: • The Barcelona Traction, Light and Power Company (BLTPC) was incorporated in Toronto, Canada for the purpose of creating and developing an electric power production and distribution system in Catalonia, Spain. • It formed a number of concession-holding subsidiary companies, of which some had their registered offices in Canada and the others in Spain. • Some years after the first world war, the BLTPC’s share capital came to be very largely held by Belgian nationals. • However, the servicing of the BLTPC bonds was suspended on account of the Spanish civil war. 26

• 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. • Eventually, the company was declared bankrupt. • Belgium then filed an Application with the ICJ against the Spanish government seeking reparation for damages claimed to have been caused to the Belgian national shareholders of the company. • Later however, Belgium gave notice of discontinuance of the proceedings, with a view to negotiations between the representatives of the private interests concerned, and the case was removed from the Court's General List. • The negotiations having failed, the Belgian Government submitted to the Court a new Application 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? Held. 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.

Discussion. The basic right of all human persons was mentioned by the Court to be protected against slavery and racial discrimination as deriving from basic general international law. Such rights may derive from international instruments of a universal or quasi-universal character. Such obligations are obligations erga omnes, that is, all states have a legal interest in their protection.

27