Public International Law Digests

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

1) COMPAGNIE DE COMMERCE ET DE NAVIGATION D’EXTREME ORIENT VS. THE HAMBURG AMERIKA PACKETFACHT ACTIEN GESELLSCHAFT - Anastacio (SUPER LONG CASE!!!!) FACTS: - HAMBURG owned a steamship named SAMBIA, which proceeded to the port of Saigon and was taking the cargo belonging to COMPAGNIE. Apparently, there were rumors of impending war between Germany and France and other nations of Europe. The master of the steamship was told to take refuge at a neutral port (because Saigon was a French port). So, to stop that, COMPAGNIE asked for compulsory detention of his vessel to prevent its property from leaving Saigon. However, the Governor of Saigon refused to issue an order because he had not been officially notified of the declaration of the war. - The steamship sailed from Saigon, and was bound for Manila, because it was issued a bill of health by the US consul in Saigon. The steamship stayed continuously in Manila and where it contends it will be compelled to stay until the war ceases. No attempt on the part of the defendants to transfer and deliver the cargo to the destinations as stipulated in the charter party. That BEHN, MEYER and COMPANY (agent of HAMBURG in manila) offered to purchase the cargo from COMPAGNIE, but the latter never received the cable messages so they never answered. (obviously) - When a survey was done on the ship, it was found that the cargo was *weevily and heating* (whatever that means), so BEHN asked for court authority to sell the cargo and the balance to be dumped at sea. The proceeds of the sale were deposited in the court, waiting for orders as to what to do with it. - BEHN wrote COMPAGNIE again informing the latter of the disposition which it made upon the cargo. COMPAGNIE answered that it was still waiting for orders as to what to do. - COMPAGNIE of course wanted all the proceeds of the sale to be given to them (damages for the defendants’ failure to deliver the cargo to the destinations Dunkirk and Hamburg), while defendants contend that they have a lien on the proceeds of the sale (amount due to them because of the upkeep and maintenance of the ship crew and for commissions for the sale of the cargo). - The trial court ruled in favor of the plaintiffs. - On appeal, the defendants made the ff: assignments on appeal (that the court had no jurisdiction, that the fear of capture was not force majeure, that the court erred in concluding that defendant is liable for damages for non-delivery of cargo, and the value of the award of damages) - On appeal, the plaintiffs also contended that the court erred in not giving the full value of damages (kasi binawas un expenses ng mga defendants) ISSUE: WoN the master of the steamship was justified in taking refuge in Manila (therefore being the cause of the non-delivery of the cargo belonging to the plaintiffs)

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COMPAGNIE contends that the master should have in mind the accepted principles of public international law, the established practice of nations, and the express terms of the Sixth Hague Convention (1907), the master should have confidently relied upon the French authorities at Saigon to permit him to sail to his port of destination under a laissez-passer or safe-conduct, which would have secured both the vessel and her cargo from all danger of capture by any of the belligerents. The SHIPOWNER contends that the master was justified in declining to leave his vessel in a situation in which it would be exposed to danger of seizure by the French authorities, should they refuse to be bound by the alleged rule of international law.

HELD:

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The Court held that after examining the terms and conditions of the convention that at the outbreak of the present war, there was no such general recognition of the duty of a belligerent to grant "days of grace" and "safe-conducts" to enemy ships in his harbors, as would sustain a ruling that such alleged duty was prescribed by any imperative and well settled rule of public international law, of such binding force that it was the duty of the master of the Sambia to rely confidently upon a compliance with its terms by the French authorities in Saigon. It was nothing but a *pious wish* at least, adherence to the practice by any belligerent could not be demanded by virtue of any convention, tacit or express, universally recognized by the members of the

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

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society of nations; and that it may be expected only when the belligerent is convinced that the demand for adherence to the practice inspired by his own commercial and political interests outweighs any advantage he can hope to gain by a refusal to recognize the practice as binding upon him. The Court concluded that under the circumstances surrounding the flight of the Sambia from the port of Saigon, her master had no such assurances, under any well-settled and universally accepted rule of public international law, as to the immunity of his vessel from seizure by the French authorities, as would justify us in holding that it was his duty to remain in the port of Saigon in the hope that he would be allowed to sail for the port of destination designated in the contract of affreightment with a laissez-passer or safeconduct which would secure the safety of his vessel and cargo en route. The Court also held that it was the duty of the ship-owner to sell, and not to just transship the cargo, due to the fact of the perishable nature of the cargo (rice) and that he was justified in the delay of acting, so as to ascertain reasonably what course of action to take. RE: jurisdiction. It cannot be raised on appeal for the first time.

2) COLUMBIA VS. PERU - Beron Facts: In 1949, a Peruvian political leader, Victor Raul Haya de la Torre was given asylum in the Colombian Embassy located in Peru. The Colombian ambassador requested the government of Peru to allow de la Torre to leave the country on the ground that the Colombian government qualified de la Torre as a political refugee. Peru refused to accept the right of Colombia to characterize unilaterally the nature of de la Torre's offense. Colombia based its claim on certain international agreements among Latin-American states and in addition on American international law. Issue: W/n Colombia, on its own, can decide on the character of the offense of de la Torre, a citizen of Peru, with such decision binding upon the government of Peru... Held: NO. The Colombian government must prove that the rule (American international law more particularly regional or local custom peculiar to Latin-American States...) invoked by it is accordance with a constant and uniform usage practiced by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial state (in this case, Peru..). Colombia claims that this regional customs has been codified by the Monteviedo Convention, but this argument must fail. The limited number of States which ratified this Convention reveals the weakness of this argument. The Colombian Government failed to prove the existence of such customs as invoked by it. Even if such customs exist, it could not be invoked against Peru which has repudiated it by refraining from ratifying the Montevideo Conventions. The court further stated in its decision that the only solution to a dispute between states adhering to different set of customs is to go back in history to a time when a rule accepted by both groups of States exist and continue to apply that rule.

3) NICARAGUA VS. US - Calinisan c/o SC notes Tanquilit FACTS: In 1946, the US made a declaration containing the following reservation: “this declaration shall remain in force for a period of 5 years and thereafter until the expiration of 6 months after notice may be given to terminate this declaration.”

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas In 1984, the US deposited with the UN Sec Gen a notification referring to the 1946 declaration, stating: “the aforesaid declaration shall not apply to disputes with any Central American State or arising out of or related to events in Central America, any of which disputes shall be settled in such manner as the parties to them may agree.” Nicaragua filed a claim against the US for damages in connection with military and paramilitary activities allegedly supported by the US in and against Nicaragua. The US argues that pursuant to the 1984 reservation that it made, the ICJ has no jurisdiction over the controversy, since it involves a dispute with a Central American State. Nicaragua argues that the ICJ has jurisdiction under the 1946 declaration, which was not terminated by the subsequent 1984 declaration, since the US never gave the 6-months notice of termination, as required by the reservation that it had made in 1946. According to Nicaragua, the US conceived, created, and organized a mercenary army, the contra force, in Nicaragua. The court found that contra force was not created by the US, but that a number of the operations were decided and planned, if not actually by the US advisers, then at least in close collaboration with them, and on the basis of the intelligence and logistic support which the US was able to offer. The US gave assistance to the contra force in the form of logistic support, the supply of information on the location and movements of the Sandinista troops, the use of sophisticated methods of communication, etc. However, the evidence does not warrant a finding that the US gave direct combat support. ISSUE: W/N the declaration is still binding on the US. HELD: The ICJ has jurisdiction. The 1946 declaration is still binding on the US. The US cannot derogate from the time-limit proviso included in its 1946 declaration. The notion of reciprocity is concerned with the scope and substance of the commitments entered into, including reservations, and not with formal conditions of their creation, duration, or extinction. Reciprocity cannot be invoked in order to excuse departure from the terms of a State’s own declaration. Nicaragua can invoke the six months’ notice against the US, not on the basis of reciprocity, but because it is an undertaking which is an integral part of the instrument that contains it. The 1984 notification cannot override the obligation of the US to submit to the jurisdiction of the Court vis-à-vis Nicaragua. ISSUE: Whether the contras can be considered as organs of the US Government, or as acting on its behalf. HELD: No, the contras are not agents of the US government. The evidence is insufficient to demonstrate the total dependence of the contras on US aid. A partial dependency may be inferred from the fact that the leaders were selected by the US, and from other factors such as the organization, training and equipping of the force, planning of operations, the choosing of targets, and the operational support provided. There is, however, no clear evidence that the US actually exercised such a degree of control as to justify treating the contras as acting on its behalf. Therefore, the contras, remain responsible for their own acts, in particular for alleged violations by them of humanitarian law. For the US to be legally responsible, it would have to be proved that the State had effective control of the operations in the course of which the alleged violations were committed. 4) CORFU CHANNEL (UK V ALBANIA) – Fernandez

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas Facts: • • • • • •

October 1944, the British Navy verified that no mines existed through the North Corfu Channel in the territory of Albania. The channel was again checked (one in January and the other in February 1945) and had negative results. October 22, 1946 a squadron of British warships (the Mauritius, Leander, Saumarez, and Volage) left the port of Corfu and proceeded through the channel. While in Alabanian territorial waters, two of the warships (Saumarez and Volage) struck floating mines and sustained serious damage. 44 British officers and crew members died, while 42 were injured. November 1946, British mine sweepers went through the North Corfu Channel, cut 22 moored mines and took them to Malta for examination. By a Special Agreement, the British government instituted proceedings against Albania in the International Court of Justice (ICJ), demanding compensation for damage to its ships and for the loss of lives. Albania’s contention is that there was no proof that such mines that damaged the ships were their own. It also asserted that coastal States have a right to regulate the passage of foreign ships through its territorial waters, and that prior authorization to pass should be acquired. Since Britain did not obtain prior authorization, its passage was not innocent. For this breach of international law, Albania demands compensation from Britain.

Issue: Should Albania be held responsible for the mines that struck the British warships? Held: Yes, Albania is responsible under international law for the damage and loss of lives, and that it owned a duty to pay compensation to Great Britain. Before and after the incident, the Albanian Government’s attitude showed its intention to keep a jealous watch on its territorial waters. And when the Albania came to know of the minefield, it protested strongly against the minesweeping conducted by Britain but not to the laying of mines. It is but showing that Albania desired the presence of such mines. Moreover, the layout of the minefield shows that this could only be accomplished by stationing a look-out post near the coasts (that is in Albania). The inevitable conclusion is that the laying of the minefield could not have been done without the knowledge of Albania. It is then its duty to notify and warn ships proceeding through the Strait. Its failure to undertake such constitutes neglect of its international responsibility. As to the argument on passage through territorial waters, the ICJ ruled that the North Corfu Channel constituted a frontier between Albania and Greece, that a part of it is wholly within the territorial waters of these 2 States, and that the Strait is of special importance to Greece. Hence, the Channel belongs to a class of international highways through which passage cannot be prohibited by a coastal State in time of peace. Moreover, the passage of the British warships through the Channel was carried out in such manner that is consistent with the principle of innocent passage—the guns were in a normal position and not targeted to the shores. 5) TEMPLE OF PREAH VIHEAR (CAMBODIA V. THAILAND) – Gana Facts: -

The case arose from an Application filed by the Government of Cambodia regarding territorial sovereignty over the Temple of Preah Vihear. - Thailand made two preliminary objections. One was regarding the jurisdiction of the Permanent Court of International Justice (PCIJ) while the other was regarding the territory itself. First Objection: - Cambodia argues that the PCIJ has jurisdiction over both countries based on a declaration made by the Thai gov’t. on May 20, 1950 categorically admitting the jurisdiction of the PCIJ. - Thailand, on the other hand, argues that based on a 1959 decision of the PCIJ, declarations of acceptance made after the PCIJ ceased to exist (on April 19, 1946) were not binding. This was because Art. 36 par. 5 of the Statute of the Court says that acceptances made are only binding as such for the period which the PCIJ still has to run. And since Thailand became a party to said statute on Dec. 16, 1946, then such

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas acceptance was not anymore binding. Issue: Held: -

W/n the 1950 declaration of Thailand was an acceptance of the jurisdiction of the PCIJ.

The Court said yes. The Court held that the 1959 decision is only applicable to the parties thereto (which were Israel and Bulgaria). Furthermore, the Court held that Thailand’s 1950 declaration made its situation different from that of Bulgaria. Thailand’s being a party to the statute expired on May 6, 1950. Thus, it’s declaration on May 20, 1950 was a new declaration made outside the operation of the Statute of the Court and consequently outside the application of Art. 36. Second Objection: - Cambodia bases its claim on the Temple of Preah on a map (Annex 1) made by a group of people. On the other hand, Thailand bases its claim on a treaty signed by France (who was then conducting the foreign relations of Indo-China) and Siam. - Thailand argues that Annex 1 was never accepted by the parties to the treaty. Also, Thailand reiterates that the treaty says that the boundary between Thailand and Cambodia is based on the watershed and the boundary delineated by Annex 1 does not conform to this agreement. Issue: - W/c to follow, Annex 1 or the treaty? Held: - The Court held that Annex 1 should be followed. Even if it was not accepted by France, there was an implied acceptance of such map. This can be seen through the acts of France and Thailand. In 1934-1935 a survey had established a divergence between the map line and the true line of the watershed, and other maps had been produced showing the Temple as being in Thailand: Thailand had nevertheless continued also to use and indeed to publish maps showing Preah Vihear as lying in Cambodia. Moreover, in the course of the negotiations for the 1925 and 1937 Franco-Siamese Treaties, which confirmed the existing frontiers, and in 1947 in Washington before the Franco-Siamese Conciliation Commission, it would have been natural for Thailand to raise the matter: she did not do so. - In effect, Cambodia and Thailand are now estopped from questioning the validity of Annex 1. Thus, the Temple of Preah Vihear belongs to Cambodia. 6) GABCÍKOVO-NAGYMAROS (HUNGARY VS. SLOVAKIA) (1993) – Lopez Facts: -

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The case started from a treaty entered into by Hungary and Czechoslovakia concerning the construction and operation of the Gabcíkovo-Nagymaros System of Locks. The said project was for the construction of infrastructure on and around the Danube River, which ran in between both countries, for the more productive use of the waters of the said river. The treaty assigned the construction of that part of the project in Nagymaros to Hungary while that part in Gabcikovo to Czechoslovakia. Both parties had their own responsibilities. Each country was responsible for certain parts of the project. Works on the project started in 1978. However, Hungary encountered intense criticism from its citizens so it decided to postpone works on the project starting May 13, 1989. Eventually, Hungary abandoned the project on 27 October 1989. During the suspension, Czechoslovakia and Hungary entered into negotiations to come up with an alternative to the abandoned project. One alternative is Variant C. On 23 July 1991, the Slovak Government decided to begin, in September 1991, construction to put the Gabcíkovo Project into operation using Variant C. On 19 May 1992, the Hungarian Government transmitted to the Czechoslovak Government a Note Verbale terminating the 1977 Treaty with effect from 25 May 1992. Negotiations continued but to no avail. Until, the filing of the instant case.

Issue: (a) Whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabcíkovo Project for which the Treaty attributed responsibility to the Republic of Hungary.

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

(b) Whether the Czech and Slovak Federal Republic was entitled to proceed, in November 1991, to the "provisional solution" and to put into operation from October 1992 this system, described in the Report of the Working Group of Independent Experts of the Commission of the European Communities, the Republic of Hungary and the Czech and Slovak Federal Republic dated 23 November 1992 (damming up of the Danube at river kilometer 1851.7 on Czechoslovak territory and resulting consequences on water and navigation course). (c) What are the legal effects of the notification, on 19 May 1992, of the termination of the Treaty by the Republic of Hungary? Held: (a) The Court says No. Hungary rests the validity of its action upon the principle of a state of necessity. The state says that they had to abandon the treaty because of economic and ecological concerns. The Court enumerated the requirements for the application of such a principle, to wit: a. it must have been occasioned by an "essential interest" of the State which is the author of the act conflicting with one of its international obligations b. that interest must have been threatened by a "grave and imminent peril" c. the act being challenged must have been the "only means" of safeguarding that interest d. that act must not have "seriously impair[ed] an essential interest" of the State towards which the obligation existed e. the State which is the author of that act must not have "contributed to the occurrence of the state of necessity" In this case, the Court held that there was an essential interest, which is the environment. But, the court held that the peril to be caused is not imminent. The future problems being pointed out by Hungary were not impending enough to justify their abandonment of the treaty (ie, problem regarding drinking water was a long-term problem). The Court also pointed out that there were other means by which Hungary could have avoided the alleged perils attached to the continuation of the Gabcíkovo-Nagymaros System of Locks (ie, lessening of the river bed could have been solved by constant refilling of the bed with gravel). The Court also pointed out that Hungary helped in bringing about the state of necessity by rushing the projects without fully understanding the effects it would have in the environment. (b) The Court says no. Czechoslovakia rests its claim on what it calls the "principle of approximate application" to justify the construction and operation of Variant C. The principle states that whenever a legal instrument of continuing validity cannot be applied literally owing to the conduct of one of the parties, it must, without allowing that party to take advantage of its own conduct, be applied in a way approximating most closely to its primary object. The Court took note that the basic characteristic of the treaty is to provide for the construction of the Gabcíkovo-Nagymaros System of Locks as a joint investment constituting a single and indivisible operational system of works. Clearly, through Variant C, Czechoslovakia violated such main objective of the treaty. Through Variant C, the Czechs wanted to create their own system of works on the Gabcikovo side of the Danube. This is obviously an internationally wrong act for it violated the treaty agreed upon between the parties. The Court considers that Czechoslovakia, by unilaterally assuming control of a shared resource, and thereby depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube — with the continuing effects of the diversion of these waters on the ecology of the riparian area of the Szigetköz — failed to respect the proportionality which is required by international law. (c) The 19 May 1992 declaration of Hungary did not have any legal effect. It did not terminate the treaty between the two states. When Hungary made such a declaration, it did not have any basis to terminate the treaty. It was actually the one which violated the treaty by abandoning their obligations. There was no fault committed by the Czechs to justify what Hungary did. In the Court's view, therefore, the notification of termination by Hungary on 19 May 1992 was premature. No breach of the Treaty by Czechoslovakia had yet taken place and consequently Hungary was not entitled to invoke any such breach of the Treaty as a ground for terminating it when it did. (d) The Court finds that Hungary and Slovakia must negotiate in good faith in the light of the prevailing situation, and must take all necessary measures to ensure the achievement of the objectives of the Treaty. Unless the Parties otherwise agree, a joint operational régime must be established in accordance with the

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas Treaty. Also, unless the Parties otherwise agree, Hungary shall compensate Slovakia for the damage sustained by Czechoslovakia and by Slovakia on account of the suspension and abandonment by Hungary of works for which it was responsible; and Slovakia shall compensate Hungary for the damage it has sustained on account of the putting into operation of the "provisional solution" by Czechoslovakia and its maintenance in service by Slovakia. 7) ADVISORY OPINION ON THE LEGAL CONSEQUENCES OF THE PALESTINIAN WALL – Mendiola Facts: (Facts are really short.) Israel constructed a wall in the Occupied Palestinian Territory including in and around east Jerusalem. The question on which the advisory opinion of the Court has been requested is set forth in resolution ES-10/14 adopted by the General Assembly of the United Nations on 8 December 2003 at its Tenth Emergency Special Session. Issue: W/N the court has jurisdiction to issue an advisory position. Held: The Court has Jurisdiction. The Court has already indicated that the subject of the present request for an advisory opinion falls within the competence of the General Assembly under the Charter. Even if Article 12, paragraph 1, of the Charter provides that: “While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.” a request for an advisory opinion is not in itself a “recommendation” by the General Assembly “with regard to [a] dispute or situation”. As regards the practice of the United Nations, both the General Assembly and the Security Council initially interpreted and applied Article 12 to the effect that the Assembly could not make a recommendation on a question concerning the maintenance of international peace and security while the matter remained on the Security Council’s agenda. However, this interpretation of Article 12 has evolved subsequently. Thus the General Assembly deemed itself entitled in 1961 to adopt recommendations in the matter of the Congo (resolutions 1955 (XV) and 1600 (XVI)) and in 1963 in respect of the Portuguese colonies (resolution 1913 (XVIII)) while those cases still appeared on the Council’s agenda, without the Council having adopted any recent resolution concerning them.

Issue: W/N the Court cannot exercise jurisdiction to issue an opinion because of contentious matters between Israel and Palestine. Held: The Court can exercise its jurisdiction. One of the arguments is to the effect that the Court should not exercise its jurisdiction in the present case because the request concerns a contentious matter between Israel and Palestine, in respect of which Israel has not consented to the exercise of that jurisdiction. According to this view, the subject-matter of the question posed by the General Assembly “is an integral part of the wider Israeli-Palestinian dispute concerning questions of terrorism, security, borders, settlements, Jerusalem and other related matters”. Israel has emphasized that it has never consented to the settlement of this wider dispute by the Court or by any other means of compulsory adjudication; on the contrary, it contends that the parties repeatedly agreed that these issues are to be settled by negotiation, with the possibility of an agreement that recourse could be had to arbitration. The Court observes that the lack of consent to the Court’s contentious jurisdiction by interested States has no bearing on the Court’s jurisdiction to give an advisory opinion. In an Advisory Opinion of 1950, the Court explained that:

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas “The consent of States, parties to a dispute, is the basis of the Court’s jurisdiction in contentious cases. The situation is different in regard to advisory proceedings. The Court’s reply is only of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. Issue: W/N building of the wall violates the right of the Palestinian people to self-determination. Held: The building of the wall violates the self-determination doctrine. As regards the principle of the right of peoples to self-determination, the Court observes that the existence of a “Palestinian people” is no longer in issue. Such existence has moreover been recognized by Israel in the exchange of letters of 9 September 1993 between Mr. Yasser Arafat, President of the Palestine Liberation Organization (PLO) and Mr. Yitzhak Rabin, Israeli Prime Minister. In that correspondence, the President of the PLO recognized “the right of the State of Israel to exist in peace and security” and made various other commitments. In reply, the Israeli Prime Minister informed him that, in the light of those commitments, “the Government of Israel has decided to recognize the PLO as the representative of the Palestinian people”. 8) ADVISORY OPINION ON THE USE OF NUCLEAR WEAPONS – Morada Facts: -The World Health Organization(WHO), sent to the Registrar of the International Court of Justice(ICJ) a decision of the World Health Assembly (WHA) to submit a question to the Court for an advisory opinion. -The request for advisory opinion states, in summary, that: -In view of the report of the Director-General and the resolutions of the WHA on the health and environmental effects of nuclear weapons; and -Recalling that primary prevention is the only appropriate means to deal with the health and environmental effects of the use of nuclear weapons; -The WHA decides to request the International Court of Justice to give an advisory opinion on the following question: In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligation under international law including the WHO Constitution? -While the ICJ has the power to give advisory opinions, three conditions 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: 1. the agency requesting the opinion must be duly authorized, under the Charter, to request opinions from the Court; 2. The opinion requested must be on a legal question; 3. This question must be one arising within the scope of the activities of the requesting agency. Issue: W/N the Court has the jurisdiction to give the advisory opinion requested by WHO. Held: NO, because the third requisite was not met -There is no question of compliance with regard to the first two requisites since, as regards the first one, WHO’s Constitution and the Agreement between WHO’s agreement with the United Nations states that the General Assembly of the United Nations authorizes the WHO to request advisory opinions of the ICJ on legal questions arising within the scope of its competence. -As to the second requisite, the issue posed is indeed a legal question, since its resolution would require the ICJ to interpret the rules of law invoked regarding the obligations of the States, and assess whether the behaviour in question conforms to those obligations. The political nature of the motives which may have inspired the request and the political implications that the opinion given might have are irrelevant in the establishment of jurisdiction. -With regard to the third requisite, the Rules and the Constitution of the organization must be referred to in order to

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas determine its field of activity or area of competence. -The ICJ finds that the activities of WHO relate only to the ‘effects of the use of nuclear weapons on health,’ but not to the ‘legality of the use of such weapons in view of their health and environmental effects.’ -None of the function of WHO has a sufficient connection with the question of legality of the use of nuclear weapons. Whether nuclear weapons are used legally or illegally, their effects on health would be the same. -It must be noted that WHO is a “specialized agency” under the UN . Being a specialized agency, it is empowered only to take such action for the accomplishment of its specific objectives, which necessarily deal with public health. It cannot encroach on the responsibilities of other parts of the United Nations System. -There is no doubt that questions concerning the use of force, the regulation or 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 does not related to a question which arises “within the scope of the activities” of WHO. Side issues: Issue: W/N the resolution of WHA requesting for an advisory opinion, having been adopted by the requisite majority, must be presumed to have been validly adopted. Held: The mere fact that a majority of States, in voting a resolution, have complied with the rules of form, cannot suffice to remedy the fundamental defect of such resolution, it being ultra vires. Issue: W/N the opinion of the General Assembly of UN welcoming the resolution of WHO to request an advisory opinion grants WHO the competence to do so. Held: NO. The General Assembly only meant to lend its political support to the action taken by WHO, not to pass upon WHO’s competence to request an opinion on the question raised 9) NOTTEBOHM (LIECHTENSTEIN VS. GUATEMALA) – Rivas FACTS: - Nottebohm was born at Hamburg and was a German national. - In October 9, 1939, a little more than a month after the opening of the Second World War, marked by Germany's attack on Poland, that he applied for naturalization in Liechtenstein but he continued to have his fixed abode in Guatemala where he resumed his usual business activities. - The necessary conditions for the naturalization of foreigners in Liechtenstein are laid down by the Liechtenstein Law of 4th January, 1934. o that the applicant for naturalization must prove that acceptance into the Home Corporation (Heimat verband) of a Liechtenstein commune has been promised to him in case of acquisition of the nationality of the State; o that, subject to waiver of this requirement under stated conditions, he must prove that he will lose his former nationality as the result of naturalization; o that he has been resident in the Principality for at least three years, although this requirement can be dispensed with in circumstances deserving special consideration and by way of exception; o that he has concluded an agreement concerning liability to taxation with the competent authorities and has paid a naturalization fee. - The Law reveals concern that naturalization should only be granted with full knowledge of all the pertinent facts and adds that the grant of nationality is barred where circumstances are such as to cause apprehension that prejudice may enure to the State of Liechtenstein. - A Document dated 15th October, 1939 certifies that on that date the citizenship of Mauren had been conferred upon him. - On 20th October Nottebohm took the oath of allegiance and on 23rd October an arrangement concerning liability to taxation was concluded. A Certificate of Nationality was also produced to the effect that Nottebohm had been naturalized by a Supreme Resolution of the Prince of 13th October, 1939. - Nottebohm then obtained a Liechtenstein passport and had it visa-ed by the Consul General of Guatemala in Zurich on 1st December, 1939, and returned to Guatemala at the beginning of 1940, where he resumed his former business activities. - Liechtenstein had filed an Application instituting proceedings against Guatemala, claiming:

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas damages in respect of various measures which Guatemala had taken against the person and property of M. Nottebohm, in alleged contravention of international law. o that the Government of Guatemala had acted towards Mr. Friedrich Nottebohm, a citizen of Liechtenstein, in a manner contrary to international law. Guatemala contended that the Court was without jurisdiction, the principal ground for its objection being that the validity of its declaration of acceptance of the compulsory jurisdiction of the Court expired a few weeks after the filing of the Application by Liechtenstein o

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ISSUE: - W/N the unilateral act by Liechtenstein in making M. Nottebohm its citizen was one which could be relied upon against Guatemala in regard to the exercise of protection. HELD: - NO! Nottebohm is still considered a citizen of Guatemala. - When two States have conferred their nationality upon the same individual and this situation is no longer confined within the limits of the domestic jurisdiction of one of these States but extends to the international field, international arbitrators or the Courts of third States which are called upon to deal with this situation would allow the contradiction to subsist if they confined themselves to the view that nationality is exclusively within the domestic jurisdiction of the State. - In order to resolve the conflict they have, on the contrary, sought to ascertain whether nationality has been conferred in circumstances such as to give rise to an obligation on the part of the respondent State to recognize the effect of that nationality. - In determining his nationality, different factors are taken into consideration, and their importance will vary from one case to the next: o habitual residence of the individual concerned o the centre of his interests, his family ties, his participation in public life, o attachment shown by him for a given country and inculcated in his children, etc. - According to the practice of States, nationality constitutes the juridical expression of the fact that an individual is more closely connected with the population of a particular State. - At the time of his naturalization, does Nottebohm appear to have been more closely attached by his tradition, his establishment, his interests, his activities, his family ties, his intentions for the near future, to Liechtenstein than to any other State? - Nottebohm always retained his family and business connections with Germany and that there is nothing to indicate that his application for naturalization in Liechtenstein was motivated by any desire to dissociate himself from the Government of his country. - Also, Nottebohm had been settled for 34 years in Guatemala, which was the centre of his interests and his business activities. He stayed there until his removal as a result of war measures in 1943 (remember that he became a citizen of Liechtenstein in 1979), and complains of Guatemala's refusal to readmit him. Members of Nottebohm's family had, moreover, asserted his desire to spend his old age in Guatemala. - There is thus the absence of any bond of attachment with Liechtenstein, but there is a long-standing and close connection between him and Guatemala, a link which his naturalization in no way weakened. 10) OPOSA VS. FACTORAN – Sarenas Facts: • • • •

The petitioners in this case are all minors represented by their parents. Factoran was the then secretary of the DENR. The complaint was instituted as a taxpayers’ class suit. The minors are saying that they represent their generation as well as generation yet unborn. The prayer is that the secretary of DENR to cancel all existing timber license agreements and refuse to accept new ones. Factoran filed a motion to dismiss saying that petitioners do not have a cause of action and what is involved is a political question that is for the legislative department to resolve. The RTC judge approved the motion.

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas • Issue: • Held: • Issue: • Held: • • • Issue: • Held: • Issue: • Held: •

Plaintiffs thus filed the motion for certiorari.

W/N petitioners have a cause of action

Petitioners indeed have locus standi to file the case. They can file the case for themselves as well as for the succeeding generations. W/N the petitioners failed to assert a legal right

Petitioners have successfully showed that they have a specific legal right. The right to a balanced and healthful ecology (Sec 16, Art II of the 1987 Constitution) The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. It is the DENR’s duty to protect such right. A denial or violation of that right by the other who has the correlative duty to respect or protect the same gives right to a cause of action. W/N the case involves a political question

No. What is principally involved is the enforcement of a right vis-à-vis policies already formulated and expressed in legislation. W/N the case should be dismissed due to non-impairment of contracts (referring to the timber licenses)

The non-impairment clause must yield to the police power of the state. All licenses may be revoked or rescinded by executive action.

Decision: Order of dismissal set aside (I guess remanded yung case) 11) EAST TIMOR – Anastacio

1. The main ruling of the Court (the majority opinion) is that it cannot exercise jurisdiction over the case notwithstanding the fact that it has been conferred jurisdiction through the declarations made by the parties (i.e., Portugal and Australia) under Article 36, paragraph 2, of its Statute. Reasons for the ruling:

a) the Court cannot exercise jurisdiction over the case because Indonesia is not a party thereto. The court held that in order to rule on the proceedings instituted by Portugal against Australia concerning "certain activities of Australia with respect to East Timor", it would be necessary for the court to determine the rights and obligations of Indonesia. Specifically, the court held that the very subject-matter of its decision would necessarily be a determination whether, having regard to the circumstances in which Indonesia entered and remained in East Timor, it could or could not have acquired the power to enter into treaties on

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas behalf of East Timor relating to the resources of its continental shelf. The Court could not make such a determination in the absence of the consent of Indonesia; b) regarding the contention that Portugal and Australia have accepted the compulsory jurisdiction of the Court under Article 36, paragraph 2, of its Statute, the court noted that Indonesia did not do so. This, in effect, precludes the court from exercising jurisdiction since were it to rule on the case, its decision would affect, but would not be binding on, Indonesia because of its lack of consent to the court’s jurisdiction; c) while it is true that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, the Court nonetheless considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case; d) if the court were to exercise jurisdiction over the case and render judgment thereon notwithstanding the lack of Indonesia’s consent, such a judgment would run directly counter to the "well-established principle of international law embodied in the Court's Statute, namely, that the Court can only exercise jurisdiction over a State with its consent" (Monetary Gold Removed from Rome in 1943, I.C.J. Reports 1954, p. 32). Re the separate opinion of Judge Oda: Judge Oda, while agreeing that Portugal's Application should be dismissed as the Court lacks jurisdiction to entertain it, considers that its dismissal should not have been based upon the absence of Indonesia's consent, as in the Court's Judgment, but upon the sole consideration that Portugal lacked locus standi. His reasoning appears to be based on his view that the central issue in the case is whether Portugal or Indonesia, as a State lying opposite to Australia, was entitled to the continental shelf in the "Timor Gap"(maybe, this is what is referred to in the Treaty of 11 December 1989 between Australia and Indonesia as an area between the Indonesian Province of East Timor and Northern Australia). . He notes that on the matter of the delimitation of the continental shelf in the relevant areas, it appears that since the seventies, Indonesia claimed the status of a coastal State for East Timor and, as such, negotiated with Australia while, on the other hand, Portugal did not. Had Portugal also claimed that status, it could and should have initiated a dispute over the corresponding title to the continental shelf with Indonesia, but not with Australia. Not unless and until such time as Portugal had been established as having the status of the coastal State entitled to the corresponding continental shelf could any issue concerning the seabed area of the "Timor Gap" have been the subject matter of a dispute between Portugal and Australia Since Portugal does not have such status as yet, it has no locus standi and hence, its complaint should be dismissed on such ground. Re the dissenting opinion of Judge Weeramantry: Judge Weeramantry disagrees with the majority view on the question as to whether or not the Court lacks jurisdiction on the ground that a decision against Australia would involve a decision concerning the rights of Indonesia, a third State, not before the Court. Judge Weeramantry, after analyzing the Monetary Gold decision and the prior and subsequent jurisprudence on the matter, concludes that, having regard to the facts of this case, the Monetary Gold decision is not relevant inasmuch as the Court could determine the matter before it entirely on the basis of the obligations and actions of Australia alone, without any need to make an adjudication on the conduct of Indonesia. He bases this on the view that a central principle of State responsibility in international law is the individual responsibility of a State for its actions, quite apart from the complicity of another State in those actions. Accordingly, he believes that Australia’s actions, in negotiating, concluding and initiating performance of the Timor Gap Treaty, and taking internal legislative measures for its application, are thus justiciable on the basis of its unilateral conduct. Re the dissenting opinion of Judge Skubiszewski:

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas In his view, the court has jurisdiction because even it finds itself without jurisdiction to adjudicate on any issue relating to the Timor Gap Treaty, it can still rule on Portugal’s first submission, i.e., with the status of East Timor, the applicability to that territory of the principle of self-determination and some other basic principles of international law, and the position of Portugal as administering Power. This is so because the first submission can be separated from the other submissions which concern exclusively the specific issues of the treaty. Judge Skubiszewski believes that the Court can decide on the lawfulness of some unilateral acts of Australia leading to the conclusion of the Treaty. A decision thereon does not imply any adjudication on Indonesia, nor does it involve any finding on the validity of the Treaty. The conduct of Australia can be assessed in the light of United Nations law and resolutions. Such assessment is not linked to any passing upon Indonesia's activities. Further, it is his view that Portugal has the capacity to act before the Court in this case on behalf of East Timor and to vindicate the respect for its position as administering Power. The position of Portugal as administering Power was questioned by Australia; the Court should have clarified this issue. It is within its jurisdiction. 12) ISLAND OF PALMAS – Beron Facts: The Island of Palmas sits about halfway between the islands of Mindanao in the Phil and Nanusa of the Netherlands Indies. It is, however, within the boundaries of the Phil as defined by Spain and thus ceded to the United States (US) in 1898 by virtue of the Treaty of Paris. In 1906, American General Wood visited Palmas and discovered that the Netherlands also claimed sovereignty over the island. Issue: Whether the island of Palmas in its entirety forms a part of territory belonging to the US or if Netherlands territory. Held: It is within the Netherlands territory. Contention of US: It bases its title on discovery and by virtue of which it acquired sovereignty over the islands. It claims that this title is further confirmed by the Treaty of Monster to which Spain and the Netherlands are themselves contracting parties. US claims that it is unnecessary to establish facts showing the actual display of sovereignty over the Island of Palmas, that is mere discovery is sufficient to acquire sovereignty over a territory. US also based its claim on the principle of contiguity (ibig sabhin, kung kanino bansa mas malapit, kanya yung island...) Huber, the selected arbitrator disagreed with this contention of the US. Sovereignty over a territory is the right to exercise therein, to the exclusion of any other State, the functions of a State. Continuous and peaceful display of territorial sovereignty is as good as a title. It is recognized that the US communicated the Treaty of Paris to the Netherlands, and that no reservations or protests were made by the Netherlands in respect of the delimitation of the Philippines which included the Palmas. However the territorial sovereignty (which as stated above serves as good title...) which Netherlands exercised over the Palmas could not be affected by the mere silence as regards a treaty which has been notified. Discovery alone without subsequent act cannot at the present time suffice to prove sovereignty over the Palmas. Even considering that the US possesses an imperfect title over the Palmas by virtue of the Treaty of Paris, this title cannot prevail over the continuous display of authority of another state. The principle of contiguity as contention should also fail. This principle itself is by its very nature so uncertain and contested that even governments of the same state have on different occasions maintained contradictory opinions. If this principle alone is to be used as basis for acquiring sovereignty over a territory, this principle would be in conflict with what has been said about territorial sovereignty

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

13) VFA CASE (LIM VS. EXEC. SEC.) – Calinisan Facts: • Beginning January 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. • 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 • The lack of consensus(agreement) was eventually cured when the two nations concluded the Visiting Forces Agreement (VFA) in 1999. Issue: • W/N "Balikatan 02-1" is covered by the Visiting Forces Agreement. • W/N American troops may actually engage in combat in Philippine territory Held: •

•

•

Yes. After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word .'activities" arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nation's marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like. The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat "except in self-defense." We wryly note that this sentiment is admirable in the abstract but difficult in implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very doorstep. They cannot be expected to pick and choose their targets for they will not have the luxury of doing so. We state this point if only to signify our awareness that the parties straddle a fine line, observing the honored legal maxim "Nemo potest facere per alium quod non potest facere per directum."11 The indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1 " is actually a war principally conducted by the United States government, and that the provision on self-defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial.

Notes: • 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 • Mutual Defense Treaty—as the "core" of the defense relationship between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts; in re: VFA. • Visiting Forces Agreement—provides the "regulatory mechanism" by which "United States military and civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine Government." It contains provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. Its primary goal is to facilitate the promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a common foe.

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

14) WTO CASE (TAÑADA VS. ANGARA) – Fernandez Facts: • • • •

The Republic of the Philippines, through DTI Secretary Navarro signed in the Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations. The Philippine Senate, then, received a letter from the President of the Philippines stating that the Uruguay Round Final Act (the Agreement establishing the World Trade Organization) is submitted to them for their concurrence. Another letter on the same subject was given to the Senate. Senate adopted a resolution expressing its concurrence in the ratification of the international agreement. Thereafter, the President signed the Instrument of Ratification. However, the WTO Agreement ratified by the President did not contain certain documents contained in the Final Act signed by the DTI Secretary. This action was filed by Tanada et al questioning the validity/constitutionality of the WTO Agreement.

Issues: Is the WTO Agreement consistent with the Constitution? Does the WTO Agreement unduly limit and restrict Philippine sovereignty? Does the concurrence made by the Senate and the President, in essence, defective since it did not include other documents contained in the Final Act signed by the DTI Secretary? Held: An initial question was posed regarding jurisdiction. The SC ruled that it has jurisdiction over the matter since it has the power to determine whether there was GADLEJ on the part of the Senate and President. However, the SC will not review the wisdom of their decisions. The WTO Agreement is not violative of the Constitution. The reliance on the priniciple of economic nationalism espoused in Articles 2(sec 19) and 12(secs 10 and 12) of the Constitution is misplaced as these are not self-executing provisions. They do not embody judicially enforceable constitutional rights but are guidelines for legislation. These are broad constitutional principles that need legislative enactments to implement them. Moreover, 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. The Constitution did not intend to promote an isolationist policy. In addition, the GATT itself has provided built-in protection from such unfair foreign competition and trade practices. (the important part) Participating in the WTO Agreement did limit or restrict, to some extent, the absoluteness of our sovereignty, but is not necessarily reprehensible. While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. Through the incorporation clause in the Constitution, the Philippines is bound by generally accepted principles of law as they automatically form part of the laws of the land. Of great importance is the principle of pacta sunt servanda, which means that international agreements must be performed in good faith. A state which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken. So by their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. For instance, when the Philippines joined the UN and other bilateral relations with other States, it effectively limits its sovereign powers of taxation, eminent domain and police power. It can then be inferred that a portion of sovereignty may be waived without violating the Constitution by virtue of the Philippines being bound by generally accepted principles of law. A Final Act is not the treaty itself. It is just a summary of the proceedings that took place during the negotiation stage. In fact, the Senate did what the Final Act required—the concurrence tot the WTO Agreement. By the ratification of the Agreement, the other documents in question (Ministerial Declarations etc) were deemed adopted.

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas Plus, the WTO Agreement itself stipulated what multilateral agreements are deemed included. In sum, there was no GADLEJ on the part of the Senate and the President. When the WTO Agreement was ratified and made part of the law of the land, the Senate and the President was exercising, legitimately, its sovereign duty and power. Notwithstanding objections against possible limitations on national sovereignty, the WTO remains as the only viable structure for multilateral trading and development of international trade law. 15) CASE CONCERNING MARITIME DELIMITATION IN THE AREA BETWEEN GREENLAND AND JAN MAYEN (DENMARK VS. NORWAY) – Gana Facts: -

-

Issue: Held: -

-

The case is a dispute between Denmark and Norway regarding the territorial jurisdiction over the part of the Atlantic Ocean between Greenland (part of the Kingdom of Denmark) and the island of Jan Mayen (part of the Kingdom of Norway). The distance between the coast of Greenland and Jan Mayen is 250 nautical miles. The problem arose when Denmark, through an Executive Order, declared the area 200 miles from the coast of Greenland as fishery zones of Denmark. Also, Norway enacted legislation empowering their government to establish 200-mile economic zones around its coast. Thus, there was an overlap between the fishery zone of Denmark (off the coast of Greenland) and the economic zone of Norway (off the coast of Jan Mayen). Norway argues that both parties already came up with an agreement over the overlapping zones on Dec. 8, 1965. The said agreement limited the claims of both countries up to a median line which was at the center of Greenland and Jan Mayen. Norway also bases its claim on the 1958 Geneva Convention on the Continental Shelf, which also solves the problem of overlapping claims by instituting a median line which is equidistant from the coasts of either state. Norway also points out that by the conduct of Denmark, it can be inferred that the latter accedes to the idea of a median line. Norway pointed to a Royal Decree, a Danish Act and diplomatic notes and letters as proofs of such. How to divide the area between Greenland and Jan Mayen? The Court held that Art. 6 of the 1958 Geneva Convention on the Continental Shelf should be followed. The said article states that in cases where two or more states have disputes of the same sort as the one in this case, there should be a median line formed equidistant from the coasts of the states involved. This medial line, though, can be adjusted as stated in the Article and affirmed by several decisions of the International Court. The adjustment would be based on special circumstances, at the discretion of the Court. In this case, the Court found that the respective coastal lengths of Greenland and Jan Mayen can be considered as a special circumstance which calls for the adjustment of the median line. This is considered a special circumstance because the difference is substantial. Greenland possesses a much longer coastline, thus it should be afforded a wider claim over the disputed area based on the principle of proportionality.

16) CASE CONCERNING THE MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA VS. US) – Lopez Facts: -

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Nicaragua is assailing certain acts of the US as being contrary to customary international law, to wit: o Placing of mines in the ports of Nicaragua; o Supporting a military group called the contra forces which has committed violations of human rights of some Nicaraguans; and o Attacking certain places in Nicaragua; The US argues that it was merely doing so in self-defense. It pointed out that such use of force in self-

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas defense is allowed by international law. The US was saying that Nicaragua was attacking El Salvador, Costa Rica and Honduras and that the US was merely acting to defend the said countries. Issue: Held: -

W/n the acts of the US are contrary to customary international law. The Court said that the acts were contrary to customary international law. o First, the attacks on Nicaragua were against the principle of the non-use of force in international relations. Obviously, by attacking Nicaragua and placing mines in its ports, the US employed force against Nicaragua. The US argues that all these acts were in self-defense. The Court does not agree with the US. It held that there was no actual armed attack on the countries allegedly being protected by the US to warrant the attack on Nicaragua. What Nicaragua was guilty of was the sending of arms to the opposition in El Salvador, Costa Rica and Honduras. The court held that based on customary international law, these acts are not considered as armed attacks to justify the attacks made by the US as being in self-defense. o The court found that the acts of the US also violated the principle of non-interference which respects the sovereignty of a state over its territory. By supporting the contra forces in Nicaragua, the US was impliedly coercing the government of Nicaragua to do acts in the manner preferable to the US. In short, the US was implicitly interfering in the governance of Nicaragua through the use of force. o The Court also finds that the placing of mines by the US in the ports of Nicaragua was a violation of the freedom of navigation and commerce guaranteed by Article XIX of the Treaty of Friendship, Commerce and Navigation of 1956. The Court therefore finds that the United States is prima facie in breach of an obligation not to deprive the 1956 Treaty of its object and purpose (pacta sunt servanda), and has committed acts in contradiction with the terms of the Treaty. o In the end, the Court held that the US is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of obligations under customary international law enumerated above and by the breaches of the Treaty of Friendship, Commerce and Navigation.

NICARAGUA VS. US - Calinisan c/o SC notes Tanquilit FACTS: In 1946, the US made a declaration containing the following reservation: “this declaration shall remain in force for a period of 5 years and thereafter until the expiration of 6 months after notice may be given to terminate this declaration.” In 1984, the US deposited with the UN Sec Gen a notification referring to the 1946 declaration, stating: “the aforesaid declaration shall not apply to disputes with any Central American State or arising out of or related to events in Central America, any of which disputes shall be settled in such manner as the parties to them may agree.” Nicaragua filed a claim against the US for damages in connection with military and paramilitary activities allegedly supported by the US in and against Nicaragua. The US argues that pursuant to the 1984 reservation that it made, the ICJ has no jurisdiction over the controversy, since it involves a dispute with a Central American State. Nicaragua argues that the ICJ has jurisdiction under the 1946 declaration, which was not terminated by the subsequent 1984 declaration, since the US never gave the 6-months notice of termination, as required by the reservation that it had made in 1946. According to Nicaragua, the US conceived, created, and organized a mercenary army, the contra force, in Nicaragua. The court found that contra force was not created by the US, but that a number of the operations were decided and

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas planned, if not actually by the US advisers, then at least in close collaboration with them, and on the basis of the intelligence and logistic support which the US was able to offer. The US gave assistance to the contra force in the form of logistic support, the supply of information on the location and movements of the Sandinista troops, the use of sophisticated methods of communication, etc. However, the evidence does not warrant a finding that the US gave direct combat support. ISSUE: W/N the declaration is still binding on the US. HELD: The ICJ has jurisdiction. The 1946 declaration is still binding on the US. The US cannot derogate from the time-limit proviso included in its 1946 declaration. The notion of reciprocity is concerned with the scope and substance of the commitments entered into, including reservations, and not with formal conditions of their creation, duration, or extinction. Reciprocity cannot be invoked in order to excuse departure from the terms of a State’s own declaration. Nicaragua can invoke the six months’ notice against the US, not on the basis of reciprocity, but because it is an undertaking which is an integral part of the instrument that contains it. The 1984 notification cannot override the obligation of the US to submit to the jurisdiction of the Court vis-à-vis Nicaragua. ISSUE: Whether the contras can be considered as organs of the US Government, or as acting on its behalf. HELD: No, the contras are not agents of the US government. The evidence is insufficient to demonstrate the total dependence of the contras on US aid. A partial dependency may be inferred from the fact that the leaders were selected by the US, and from other factors such as the organization, training and equipping of the force, planning of operations, the choosing of targets, and the operational support provided. There is, however, no clear evidence that the US actually exercised such a degree of control as to justify treating the contras as acting on its behalf. Therefore, the contras, remain responsible for their own acts, in particular for alleged violations by them of humanitarian law. For the US to be legally responsible, it would have to be proved that the State had effective control of the operations in the course of which the alleged violations were committed.

17) Treaty of Antarctica – Mendiola 18) Principality of Sealand – Morada Facts: The Principality of Sealand, located on an abandoned World War II anti-aircraft platform seven miles (11 km) off the English coast, claims that it is a legitimate independent country but that's quite doubtful. In 1967, retired British Army major Paddy Roy Bates occupied the abandoned Rough's Tower in the North Sea. He and his wife discussed independence with British attorneys and subsequently declared independence for the Principality of Sealand on September 2, 1976. Bates called himself Prince Roy and named his wife Princess Joan. They began issuing coins, passports, and stamps for their new country. In support of Sealand's sovereignty, Prince Roy fired warning shots at a buoy repair boat that came close to Sealand. The Prince was charged with unlawful possession and discharge of a firearm by the British government. The Essex court proclaimed that they didn't have jurisdiction over the tower and the British government chose to drop the case due to mockery by the media. That case represents Sealand's first

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

claim to de facto international recognition as an independent country. (The United Kingdom demolished the only other nearby tower lest others get the idea to also strive for independence.) The second de facto recognition was when the Dutch government sent a diplomat to Sealand to petition the release of its nationals who were detained by Prince Roy as prisoners of war. Today, only Prince Roy lives on the tower at sixty feet above the sea. Princess Joan's arthritis isn't conducive to living on the North Sea and though the royal family's son, Michael takes care of much of the business for Sealand, he also lives onshore. The Bateses all maintain "dual" citizenship in the United Kingdom and Sealand. In 2000, Sealand came into the news because a company called Haven Co Ltd planned on operating a complex of Internet servers at Sealand, out of the reach of governmental control. HavenCo gave the Bateses $250,000 and stock to lease Rough's Tower and the company has the option to purchase Sealand in the future. This transaction was especially satisfying to the Bateses as the maintenance and support of Sealand has been quite expensive over the past 33 years. Issue: W/N Sealand is an independent State Held: NO. There are eight accepted criteria used to determine whether an entity is an independent country or not. 1) Has space or territory which has internationally recognized boundaries. No. Sealand has no land or boundaries at all, it's a tower built by the British as an anti-aircraft platform during World War II. Certainly, the government of the U.K. can assert that it owns this platform. Sealand also lies within the United Kingdom's proclaimed 12 nautical mile territorial water limit. Sealand claims that since it asserted its sovereignty before the U.K. extended its territorial waters, it concept of being "grandfathered in" applies. Sealand also claims its own 12.5 nautical mile territorial water. 2) Has people who live there on an ongoing basis. Not really. As of 2000, only one person lives at Sealand and he's going to move out, to be replaced by temporary residents working for Haven Co. Prince Roy maintains his U.K. citizenship and passport, lest he end up somewhere where Sealand's passport isn't recognized. 3) Has economic activity and an organized economy. A State regulates foreign and domestic trade and issues money. No. Haven Co represents Sealand's only economic activity up to now. While Sealand issued money, there's no use for it beyond collectors. Likewise, Sealand's stamps only have value to a philatelist (stamp collector) as Sealand is not a member of the Universal Postal Union, mail from Sealand can't be sent elsewhere (nor is there much sense in mailing a letter across the tower itself). 4) Has the power of social engineering, such as education. Perhaps. If it had any citizens. 5) Has a transportation system for moving goods and people. No. 6) Has a government which provides public services and police power. Yes, but that police power is certainly not absolute. The United Kingdom can assert its authority over Sealand quite easily with a few police officers. 7) Has sovereignty. No other State should have power over the State's territory. No. The United Kingdom has power over Sealand's territory. The British government was quoted in Wired, "Although Mr. Bates styles the platform as the Principality of Sealand, the U.K. government does not regard Sealand as a state." 8) Has external recognition. A State has been "voted into the club" by other States. No. No other country recognizes Sealand. An official from the United States Department of State was quoted in Wired, "There are no independent principalities in the North Sea. As far as we are concerned, they are just Crown dependencies of Britain." The British Home Office was quoted by the BBC that the United Kingdom does not recognize Sealand and, "We've no reason to believe that anyone else recognizes it either."

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

19) Western Sahara Case – Rivas FACTS: Western Sahara is inhabited by organized but nomadic tribes. Spain, Mauritania and Algeria asserts sovereign rights over it ISSUE: W/N Western Sahara is terra nullius (territory which prior to occupation belonged to no state or which has been abandoned by a prior occupant) HELD: It is not terra nullius Territories inhabited by tribes or people having a social and political organization were not regarded as terra nullius The court concludes that the material and information presented to it do not establish any tie of territorial sovereignty over the Western Sahara. Discovery of terra nullius is not enough to establish sovereignty. It must be accompanied by effective control 20) Holy See vs. Del Rosario – Sarenas Facts: The Holy See exercises sovereignty over the Vatican City in Rome and is represented in the Philippines by the Papal Nuncio Rosario is the judge of RTC of Makati. Private respondent is Starbright Sales Enterprises Inc, engaged in the real estate business. Msgr. Cirilos in behalf of the Holy See and Philippine Realty Corporation (PRC) sold to Ramon Licup 3 parcels of land in Paranaque. The agreement was made on the condition that Licup give P100k as earnest money and that the sellers will clear the lots of squatters. Licup paid the earnest money and later on transferred his rights to Starbright. Starbright demanded from the sellers that they clear the lots of squatters. Msgr. Cirilos informed Starbright that this cannot be done because the squatters refuse to leave. He then gave the option that either Starbright clear the lots themselvesor that the earnest money be returned to them. Starbright then proposed that if they themselves will remove the squatters, the purchase price should be reduced. Msgr. Cirilos refused such offer, returned the earnest money and demanded payment of the whole price. Later on, Starbright discovered that the lots have been sold to Tropicana. Msgr. Cirilos called for dismissal of the case for lack of jurisdiction based on sovereign immunity from suit. DFA later on intervened in the case (the DFA always intervenes in cases involving diplomatic immunity) Issue: W/N the court has jurisdiction over the Holy See Held: No, the court has no jurisdiction over the Holy See In PIL, when a state or international agency wishes to plead sovereign or diplomatic immunity, it requests

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

the Foreign office of the state where it is to convey to the court that it is entitled to immunity. In the Philippines, the practice is to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. See the case for history of the sovereignty of the Vatican (The Lateran Treaty established the statehood of the Vatican City) The Philippines has accorded the Holy See the status of foreign sovereign. It had diplomatic representations with the country since 1957. Sec 2 of Article 2 of the 1987 Constitution adopts principles of International Law. Principles of Intl. Law are deemed incorporated as part of the law of the land. Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government. 21) Expenses of the UN – Anastacio 22) Tinoco Arbitration – Beron FACTS: The government of Costa Rica under Pres. Gonzales was overthrown by Tinoco Tinoco’s government continued for 2 years falling soon after his retirement After the fall of the Tinoco administration, the old constitution was restored and elections were held under it The Law of Nullities was passed invalidating contracts with the government during the Tinoco regime as well as nullifying the issue if 15M Colones currency notes and the circulation of notes of nomination of 1,000 Colones bills by the Tinoco government. Great Britain are claiming Costa Rica’s indebtedness and concession which both had been annulled by the Law of Nullities Costa Rica on the other hand denies liability for the acts and obligation of the Tinoco government ISSUE: W/N Costa Rica is liable for the liabilities of the Tinoco government HELD: YES! Under the Principle of Continuity of States, the sate is bound by the engagements entered into by governments that have ceased to exist. The restores government is generally liable for the acts of the usurper Also changes in the government or the internal policy do not, as a rule, affect its position in the International Law. Though the government changes, the nation remains, with rights and obligations unimpaired 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 classified as such. But when recognition of a government is determined by inquiry, not into its de facto sovereignty but into its illegitimacy or irregularity of origin, their non-recognition loses evidential weight – it cannot outweigh evidence of the de facto character if a government. 23) Anglo-Norweigian Fisheries Case – Calinisan using Fernandez’ Book Under a 1935 decree, Norway delimited its territorial waters by draing baselines from point to point on the islands off its coast (“skjaergaard”). Since 1911, British fishing vessels had operated within the

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

Norweigian Coast, disregarding the decree claiming the waters as high seas as not of the islands were more than 3 miles from each others. Eventually, the British fishing vessels were seized and condemned by norweigian authorities for violation of the regulations of the coastal state by fishing in the norweigian territorial sea. The dispute was eventually brought to the ICJ by the British Government in 1949, on the contention that seizure occurred more than four miles off the Norweigian Coast. Both parties agreed that four miles could be used as the breadth of the territorial waters, in view of the historic Norweigian claim to four miles. Upholding Norway’s claim to use straight baselines, the Court rejected the British Contenetions (1) that the outer limits of Noweigian territorial waters must not be more than four miles from some point of the shore; and (2) that with the exception of bays, the baseline must be the actual low water mark. Taking cognizance of the extraordinary geographic peculiarities of the Norweigina coastline of about 120,000 islands, rocks and reefs, the court in part ruled: Some reference must be made to the close dependence of the territorial sea upon the land domain,. It is the land which confers upon the coastal State a right to the waters off its coasts. It follows that while such a State must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs an d local rewuirements, the drawing of base lines must not depart to any appreciable extent from the general direction of the coast. Another fundamental consideration of particular importance in this case is the more or less close relationship existing between certain sea areas and the land formations which divide or surround them. The real question raised in the choice of baselines is in effect whether certain sea areas living within these lines are sufficiently closely linked to the land domain to be subject to the regime of internal waters. This idea, which is at the vasis of the determination of the rules relating to bays, should be liberally applied in the case of a coast, the geographical configuration of which is as unusual as that of Norway. Finally, there is one consideration not be overlooked, the scope of the which extends beyond purely geographical factors; that of certain economic interests peculiar to a regionm the reality and importance of which are clearly evidenced by a long usage. 24) North Sea Continental Shelf Cases – Fernandez (Federal Republic of Germany v Denmark) (Federal Republic of Germany v Netherlands) Facts: The case is about the delimitation of the continental shelf between Germany and Denmark, and between Germany and Netherlands. (The determination of a State’s continental shelf, particularly in adjacent coastal States, is important in ascertaining jurisdiction over the waters that is “bordering” them in common) If you look at the map of this region, Germany’s coastline on the north (that which faces the North Sea) is going inwards the mainland (basically it’s a concave figure). Netherlands is on one side of Germany, while Denmark is on the other. It is also noticeable that the coastlines of Denmark and Netherlands (the ones facing the North Sea) are outwardly curving. The case was submitted to the ICJ to determine the principles or rules of international law, applicable, in carrying out the delimitation of the continental shelf.

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

Netherlands and Denmark argue that the “equidistance principle” in Article 6 of the Geneva Convention is applicable. Such principle essentially entails that your country’s continental shelf will be drawn up to a certain distance from your shorelines--following the contours and indentations. Clearly the equidistance principle is to the disadvantage of Germany—it having an inward shoreline. If said principle is to be applied to Germany, then it would necessarily lose jurisdiction over certain portions of the North Sea. While Denmark and Netherlands would benefit from a widening tendency on the area of continental shelf off that coast. Germany contends that all the parties should be given a “just and equitable share” in proportion to the length of its sea-frontage (essentially following the area facing the North sea without regard to inward or outward indentations). In addition, Germany prays that the States involved be entitled to a continental shelf area up to a central point as its median line. Netherlands and Denmark argue that Germany is bound by Art 6 of the Geneva Convention, despite the latter’s non-ratification of said treaty, because that provision has formed part of international custom and can even be considered to be a general principle of law. Germany argues otherwise. Moreover, it argues that even if the provision has gained the status of custom, the configuration of Germany’s coast constituted a special circumstance (this is similarly provided in the provision) which would justify a departure from the equidistance principle. Issue: How should the delimitation of the North Sea continental shelf be carried out? Held: It should be carried out by agreement between the States taking into account geographical equitable considerations including general and special features of the coasts. The Court decided the case based on equity considerations. Since neither treaty nor custom is governing, the Court tried to reach an equitable conclusion. (On apportioning the continental shelf area into just and equitable shares) The Court is not tasked to apportion the areas concerned, but merely to delimit it. The continental shelf is a natural prolongation of a State’s land territory. Since a State has sovereignty over its land territory, it naturally has a right over the prolongation of its land—i.e. the continental shelf. For the court to apportion the areas is inconsistent with the basic concept of continental shelf entitlement. (On the argument of custom) Article 6 of the Geneva Convention does not embody an existing customary norm. The provision cannot be said to have crystallized into a rule of customary international law for several reasons: First, Article 6 was framed to be purely contractual (Suffice it to state that the Convention was not a treaty of codification but purely de lege ferenda [creating new rules between the contracting States]); Second, the number of ratifications and accessions to the treaty was hardly sufficient to constitute a general rule of international law; Third, state practice was neither extensive enough nor virtually uniform to show a general recognition of an evolving norm; And fourth, the treaty itself allows for reservations (in effect, contracting States may practice or not practice the equidistance principle) (On the argument of treaty) Germany was not legally bound by Article 6. Though it signed the Geneva Convention, it has not ratified said treaty. Why is this case important on the topic of territory of States? The case illustrates a mode of settling disputes on overlapping maritime areas. It has been observed that

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

International courts and arbitration bodies have applied equitable principles instead of traditional median line or middle lines. UNCLOS III has also recognized such manner of settling overlapping maritime areas.

Eastern Greenland (Norway vs. Denmark) – Gana Skylab - Lopez Ah Sing (People vs. Wong Chuen Ming) – Mendiola Facts: A PAL flight arrived in the Philippines which contained the 11 accused in this case – 2 of which were Hong Kong (British) Nationals, while the rest were Malaysians. After passing through and obtaining clearance from immigration officers at the NAIA, the tour group went to the baggage claim area to retrieve their respective checked-in baggages. They placed the same in one pushcart and proceeded to Express Lane 5 which at that time was manned by customs examiner Danilo Gomez. At first, Gomez paid no mind to the boxes labeled “Alpen Cereals” which he found in the first 2 baggages. However, when he found the same boxes in the third baggage, he became suspicious and opened the boxes. He found that they contained a crystalline substance that was in a plastic bag. Gomez informed an airport official of his findings. As Gomez pulled out these boxes from their respective baggages, he bundled said boxes by putting masking tape around them and handed them over to the airport official. Upon receipt of these bundled boxes, the official called out the names of accused as listed in the passengers’ manifest and ordered them to sign on the masking tape placed on the boxes allegedly recovered from their respective baggages. Capt. Francisco testified that shortly after all boxes of Alpen Cereals were recovered, he conducted a field test on a sample of the white crystalline substance. His test showed that the substance was indeed “shabu.” Capt. Francisco immediately informed the eleven (11) accused that they were under arrest. They were brought to Camp Crame. At Camp Crame, they were also made to sign the plastic bags that contained the shabu. All the accused assail the conviction of the court below by alleging the evidence was inadmissible. Issue: W/N the evidence was admissible. Held: The evidence is inadmissible. At the outset, the Court holds that the signatures of accused on the boxes, as well as on the plastic bags containing “shabu,” are inadmissible in evidence. A careful study of the records reveal that accused were never informed of their fundamental rights during the

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

entire time that they were under investigation. Specifically, accused were not informed of their Miranda rights i.e. that they had the right to remain silent and to counsel and any statement they might make could be used against them, when they were made to affix their signatures on the boxes of Alpen Cereals while they were at the NAIA and again, on the plastic bags when they were already taken in custody at Camp Crame. By affixing their signatures on the boxes of Alpen Cereals and on the plastic bags, accused in effect made a tacit admission of the crime charged for mere possession of “shabu” is punished by law. These signatures of accused are tantamount to an uncounselled extra-judicial confession which is not sanctioned by the Bill of Rights (Section 12[1][3], Article III, 1987 Constitution). They are, therefore, inadmissible as evidence for any admission wrung from the accused in violation of their constitutional rights is inadmissible against them. The fact that all accused are foreign nationals does not preclude application of the “exclusionary rule” because the constitutional guarantees embodied in the Bill of Rights are given and extend to all persons, both aliens and citizens. Lotus Case (Turkey vs. France) – Morada Achille Lauro Incident – Rivas Pinochet Case – Sarenas Adolf Eichman – Anastacio Tuscanino Case – Beron Alvarez-Machain – Calinisan Facts: Respondent, a citizen and resident of Mexico, was forcibly kidnapped from his home and flown by private plane to Texas, where he was arrested for his participation in the kidnapping and murder of a Drug Enforcement Administration (DEA) agent and the agent's pilot. After concluding that DEA agents were responsible for the abduction, the District Court dismissed the indictment on the ground that it violated the Extradition Treaty between the United States and Mexico (Extradition Treaty or Treaty), and ordered respondent's repatriation. The Court of Appeals affirmed. Based on one of its prior decisions, the court found that, since the United States had authorized the abduction and since the Mexican government had protested the Treaty violation, jurisdiction was improper. Issue: W/N the forcible abduction prohibits trial.

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

Held: The fact of respondent's forcible abduction does not prohibit his trial in a United States court for violations of this country's criminal laws. (a) A defendant may not be prosecuted in violation of the terms of an extradition treaty. United States v. Rauscher. However, when a treaty has not been invoked, a court may properly exercise jurisdiction even though the defendant's presence is procured by means of a forcible abduction. Ker v. Illinois. Thus, if the Extradition Treaty does not prohibit respondent's abduction, the rule of Ker applies and jurisdiction was proper. (b) Neither the Treaty's language nor the history of negotiations and practice under it supports the proposition that it prohibits abductions outside of its terms. The Treaty says nothing about either country refraining from forcibly abducting people from the other's territory or the consequences if an abduction occurs. In addition, although the Mexican government was made aware of theKer doctrine as early as 1906, and language to curtail Ker was drafted as early as 1935, the Treaty's current version contains no such clause. (c) General principles of international law provide no basis for interpreting the Treaty to include an implied term prohibiting international abductions. It would go beyond established precedent and practice to draw such an inference from the Treaty based on respondent's argument that abductions are so clearly prohibited in international law that there was no reason to include the prohibition in the Treaty itself. It was the practice of nations with regard to extradition treaties that formed the basis for this Court's decision in Rauscher, supra, to imply a term in the extradition treaty between the United States and England. Respondent's argument, however, would require a much larger inferential leap with only the most general of international law principles to support it. While respondent may be correct that his abduction was "shocking" and in violation of general international law principles, the decision whether he should be returned to Mexico, as a matter outside the Treaty, is a matter for the Executive Branch.

Republic of Indonesia vs. Vinzon – Fernandez Facts: • Republic of Indonesia entered into a Maintenance Agreement in August 1995 with James Vinzon, owner of Vinzon Trade and Services. In this Agreement, Vinzon is to maintain certain equipment (aircon units, generators, electrical facilities, water heaters, water pumps) in the Indonesian Embassy in Manila and in Ambassador Soeratmin’s official residence here. The agreement shall be effective for 4 years and will renew itself automatically unless cancelled by either party. • A new Chief of Administration came—Minister Counsellor Kasim—he found the services of Vinzon unsatisfactory and called for the termination of the agreement. • Vinzon claims that the termination was arbitrary and unlawful. Vinzon said that Minister Kasim could not have been dissatisfied of their services as the latter even requested for an additional worker in the Embassy.

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

•

•

•

Vinzon filed a case against the Republic of Indonesia. The Republic filed a Motion to Dismiss on the ground that it is a foreign sovereign State, has sovereign immunity from suit and cannot be sued as a party-defendant in the Philippines. Even Ambassador Soeratmin and Minister Kasim cannot be sued as they enjoy diplomatic immunity. Vinzon claims that the Republic of Indonesia already waived its immunity based on a provision in the Agreement stating that any legal action arising out of the said Agreement shall be settled according to the laws of the Philippines. He further stated that the two diplomats can be held liable in their private capacities for tortious acts done with malice and bad faith. RTC denied the Motion to Dismiss. CA affirmed. These courts said that the Republic of Indonesia gave its consent to be sued and voluntarily submitted itself to the laws and jurisdiction of Philippine courts and the diplomats waived their immunity as well.

Issue: Did the Republic of Indonesia (and its diplomats) waive its immunity from suit? Held: No, the Republic of Indonesia did not waive its immunity. The provision in the contract is not necessarily a waiver of sovereign immunity from suit. Submission by a foreign state to local jurisdiction must be clear and unequivocal. It must be given explicitly or by necessary implication. There is no such waiver in this case. A State may not be sued without its consent. When a State enters into purely commercial activities the nature of the act should be determined as to whether it is jure imperii (public) or jure gestionis (private). If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii. Consequently, it is covered by sovereign immunity. The establishment of a diplomatic mission is an act jure imperii. And a State may enter into contracts with private entities to maintain the premises, furnishings and equipment of the embassy and the living quarters of its diplomatic agents and officials. Applying it in this case, the Republic of Indonesia was acting in pursuit of a sovereign activity when it entered into a contract with Vinzon. As to whether or not Ambassador Soeratmin and Minister Kasim may be sued in their private capacities, Article 31 of the Vienna Convention on Diplomatic Relations is clear that a diplomatic agent enjoys immunity from the criminal jurisdiction of the receiving State. Though there are exceptions (i.e. real action relating to private immovable property; action relating to succession; action relating to any professional or commercial activity outside official functions), the case does not fall under any of them. The acts of the 2 diplomats were incidental to the exercise of an official function. Jeffrey Liang vs. People – Gana FACTS

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

• • • • •

Two criminal informations for grave oral defamation were filed by CABAL, a member of the clerical staff of the Asian Development Bank against LIANG, a Chinese national who was employed as an Economist by the said bank MTC of Mandaluyong City, acting pursuant to an advice from the Department of Foreign Affairs that LIANG enjoyed immunity from legal processes, dismissed the case On petition for certiorari and mandamus, the RTC set aside the order of the MTC Hence, this petition LIANG argues for the diplomatic immunity of the ADB, its officials and staff, from legal and judicial processes in the Philippines

ISSUE

W/N LIANG CAN CLAIM DIPLOMATIC IMMUNITY FOR COMPLAINTS AGAINST HIM FOR GRAVE ORAL DEFAMATION

HELD

NO, SLANDER CANNOT BE SAID TO BE COVERED BY THE IMMUNITY GRANTED TO ADB EMPLOYEES REGARDING ACTS PERFORMED BY THEM IN THEIR OFFICIAL CAPACITY

RATIO • •

•

Nowhere in the assailed decision is diplomatic immunity denied However, the issue in this case is not really about diplomatic immunity but whether or not the statements allegedly made by LIANG were uttered while in the performance of his official functions, in order for this case to fall squarely under the provisions of Section 45 (a) of the "Agreement Between the Asian Development Bank and the Government of the Republic of the Philippines Regarding the Headquarters of the Asian Development Bank ," to wit: Officers and staff of the Bank, including for the purpose of this Article experts and consultants performing missions for the Bank, shall enjoy the following privileges and immunities: (a) Immunity from legal process with respect to acts performed by them in their official capacity except when the Bank waives the immunity. After careful consideration, the Court held that it had no cogent reason to disturb its Decision of January 28, 2000. As the Court has stated therein, the slander of a person, by any stretch, cannot be considered as falling within the purview of the immunity granted to ADB officers and personnel

Mighell vs. Sultan of Johore – Lopez The fifth case, that of Mighell v Sultan of Johore in 1894 deals with a woman who fell under another kind of spell, for which there was no legal redress. A man she had met in high society, who appeared gentlemanly, wealthy and plausible, and who called himself Albert Baker, promised her marriage. He promised marriage to her and then reneged on the promise, so she sued him, like Polly Frost in a rather different social milieu, for breach of promise. The case came on for hearing in the Court of Appeal on November 27, 1893. The case again attracted a wealth of legal talent: Lord Esher, Master of the Rolls, and Lords Justices Lopes and Kay.

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

Apparently Miss Mighell knew already that her fiancé was not Albert Baker: this was a not very imaginative pseudonym for Abu Bakr, His Serene Highness the Sultan of Johore. The case revealed his secret life in the high society of London, a long way absent from his kingdom in the Malay Straits. The status of the defendant was important. Miss Mighell.s argument was that he had originally presented himself as a private individual and a subject of the Queen. This pointed up of course the duality of a sovereign.s status- that they are both public and private personalities. A distinction was drawn between private transactions and matters of sovereign authority. Had Abu Bakr, (who declined to appear in court) lost this privilege of diplomatic immunity by his deceit? An independent sovereign is entitled to immunity from jurisdiction, unless he waives this privilege, which Abu Bakr was not going to do. Did his conduct amount to waiver? Persisted the lawyers for Miss Mighell. No, it must be an active waiver was the uncompromising answer. Ultimately, political considerations and agendas often decide the day. In 1894 the British Government was unwilling to offend a friendly foreign potentate to appease a private individual. In this sense, Miss Mighell was a victim of state policy, but the peculiar nature of breach of promise also meant she was a victim because she was a woman. Minucher vs. CA – Mendiola Facts: Minucher is an Iranian national. He came to the Philippines to study in the University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he was appointed Labor Attaché for the Iranian Embassies in Tokyo, Japan and Manila, Philippines. When the Shah of Iran was deposed by Ayatollah Khomeini, he became a refugee of the United Nations and continued to stay in the Philippines. Minucher was introduced to Scalzo, who was an informer of the Intelligence Unit of the military. On several occasions, Minucher and Scalzo entered into contracts of sale wherein Scalzo bought caviar, rugs, etc. from Minucher. Minucher expressed his desire to acquire a US Visa. Scalzo told Minucher that he can help him in exchange for $2k. One day, Scalzo came back again to plaintiff's house and directly proceeded to the latter's bedroom, where the latter and his countryman, Abbas Torabian, were playing chess. Minucher opened his safe in the bedroom and obtained $2,000.00 from it, gave it to the defendant for the latter's fee in obtaining a visa for plaintiff's wife. The defendant told him that he would be leaving the Philippines very soon and requested him to come out of the house for a while so that he can introduce him to his cousin waiting in a cab. Without much ado, and without putting on his shirt as he was only in his pajama pants, he followed the defendant where he saw a parked cab opposite the street. To his complete surprise, an American jumped out of the cab with a drawn high-powered gun. He was in the company of about 30 to 40 Filipino soldiers with 6 Americans, all armed. He was handcuffed and after about 20 minutes in the street, he was brought inside the house by the defendant. He was made to sit down while in handcuffs while the defendant was inside his bedroom. . He asked for any warrant, but the defendant told him to `shut up.’ He was nevertheless told that he would be able to call for his lawyer

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

who can defend him. As a result of the search, the agents found heroin inside the house of Minucher. Minucher filed a complaint against Scalzo. The lower court adjudged Scalzo to be liable to pay Minucher damages. However, the CA reversed saying that Scalzo is absolutely immune because he is clothed with diplomatic immunity by virtue of the Vienna convention. Minucher files this appeal. Still, Scalzo still claims that he may not be proceeded against by Minucher, because he is an agent of the US Drugs Enforcement Agency. Scalzo, in fact, submitted several documents showing that the Philippines, through the DFA, recognized his status as a person with diplomatic immunity. Issue: W/N Scalzo has diplomatic immunity. Held: Scalzo has immunity. The main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the determination of whether or not he performs duties of diplomatic nature. Also, vesting a person with diplomatic immunity is a prerogative of the executive branch of the government. The consent or imprimatur of the Philippine government to the activities of the United States Drug Enforcement Agency, can be gleaned from the facts mentioned. The official exchanges of communication between agencies of the government of the two countries, certifications from officials of both the Philippine Department of Foreign Affairs and the United States Embassy, as well as the participation of members of the Philippine Narcotics Command in the “buy-bust operation” conducted at the residence of Minucher at the behest of Scalzo, may be inadequate to support the "diplomatic status" of the latter but they give enough indication that the Philippine government has given its imprimatur, if not consent, to the activities within Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. The job description of Scalzo has tasked him to conduct surveillance on suspected drug suppliers and, after having ascertained the target, to inform local law enforcers who would then be expected to make the arrest. In conducting surveillance activities on Minucher, later acting as the poseur-buyer during the buy-bust operation, and then becoming a principal witness in the criminal case against Minucher, Scalzo hardly can be said to have acted beyond the scope of his official function or duties. All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States Drug Enforcement Agency allowed by the Philippine government to conduct activities in the country to help contain the problem on the drug traffic, is entitled to the defense of state immunity from suit. N.B. It might be recalled that the privilege is not an immunity from the observance of the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction Fisheries Case – Morada

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

Nuclear Tests Case (Australia/New Zealand vs. France) – Rivas Callado vs. International Rice Research Institute – Sarenas Facts: •Ernesto Callado was employed as a driver at the IRRI from April 1983 - Dec. 1990. On Feb. 1990, Callado got into an accident while on an official trip to the NAIA. •The investigation by the HRD of IRRI found Callado to have been driving under the influence of liquor. Callado submitted an answer and defenses. •IRRI terminated the services of Callado. Callado filed an illegal dismissal case against IRRI before the Labor Arbiter. •IRRI invoked immunity from suit before the Labor Arbiter. •The Labor Arbiter took notice of the contention of IRRI but still continued with the case. The Labor Arbiter maintains that in all cases of termination, IRRI waives its immunity. •NLRC reversed the decision of the Labor Arbiter and dismissed the case. Issue: •W/N IRRI has waived its immunity from suit in a dispute which arose from an employeremployee relationship Held: •NO! •Under PD 1620 (Act Granting to IRRI the privileges of an international organization), the Institute shall enjoy immunity from any penal, civil and administrative proceedings. •The grant of immunity to IRRI is clear and unequivocal and an express waiver by its DirectorGeneral is the only way which it may relinquish or abandon this immunity. •Though there is a memo regarding guidelines to implementation of PD 1620, the memo cannot be considered as the express waiver by the Director General. It is merely an internal memo. •According to the Memo: in cases involving dismissal of employees, the Institute may waive its immunity, signifying that such waiver is discretionary on its part. ILO – Anastacio WHO vs. Aquino – Beron Chorzow Factory (Germany vs. Poland) – Calinisan (from SC Tanquilit files) Poland expropriated a factory at Chorzow, contrary to the Geneva Convention of 1922 between Germany and Poland. Germany filed a claim for damages against Poland caused by the illegal expropriation. HELD: The essential principle contained in the notion of an illegal act is that reparation must,

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. In this case, the obligation of Poland is to restore the factory and, if this be not possible, to pay its value at the time of the indemnification, which value is designed to take the place of restitution which has become impossible. In addition, Poland must pay the compensating loss sustained as a result of the seizure. Mavrommatis Palestine Concessions – Fernandez Facts: • The Government of the Greek Republic comes before the Permanent Court of International Justice (PCIJ) because of the alleged refusal on the part of the Government of Palestine, and on the part of Britain’s government to recognize to their full extent the rights acquired by M. Mavrommatis (a Greek) under contracts and agreements concluded by him with the Ottoman authorities in regard to concessions for certain public works to be constructed in Palestine. These include electric tramway systems and supply of power and water in Jerusalem, Jaffa, and El-Hodja. • The Greek Republic asks that the British government, as Mandatory for Palestine, be ordered to pay compensation to Mavrommatis for the projects in Jerusalem and Jaffa. • The British government questioned the jurisdiction of the Court. It raised, as a defense, that according to the provisions of the Mandate for Palestine, the PCIJ will only have jurisdiction if the dispute is between the Mandatory (in this case Britain) and another member of the League of Nations (in this case Greece). According to Britain, the case is not of such nature. Issue: Whether the case is a dispute between 2 States so as to vest the PCIJ with jurisdiction? Held: Yes. It is true that the dispute was at first between a private person (Mavrommatis) and a State (Britain). But the Greek Government subsequently took up the case. The case, then, entered into a new phase: it became a dispute between two States and is covered by international law. Referring to the Mandate of Palestine, the case is undoubtedly between a Mandatory (Britain) and another member of the League of Nations (Greece). When Greece took the case of one of its subjects and resorted to diplomatic action or international judicial proceedings on that person’s behalf, a State is in reality asserting its own rights. Though the present dispute originated in an injury to a private interest, such is irrelevant now. The fact that the opposing parties are States is sufficient to comply with the Palestinian Mandate. Being signatory to his Mandate, Britain has

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana,  Lopez, Mendiola, Morada, Rivas, Sarenas

given consent to the PCIJ’s jurisdiction. The Court’s decision dismissed Britain’s objection with respect to the claims in Jerusalem. But upheld the objection as to the claims in Jaffa. The court said that the claims in Jaffa were not subject of the Mandate of Palestine with which Britain submitted jurisdiction. Neer Case – Gana Roberts Case – Lopez Zafiro Case – Mendiola Texaco – Morada