Case Digests On Public International Law: Chapter 1 and 2

Chapter 1 and 2
1 Case Digests on Public International Law
Case Digests on Public International Law by BASA, LACAP, MAGSINO, MEDES, RAMIREZ
Faculty of Civil Law | University of Sto. Tomas
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I.The Nature and Sources of International Law
SHIGENORI KURODA V. MAJOR GEN. RAFAEL JALANDONI, ET AL.

FACTS:
Kuroda, a former Commanding General of the Japanese Imperial Forces in the
Philippines was charged before a Military Commission convened by the Chief of Staff of
the Armed Forces of the Philippines (AFP) with unlawfully failing to discharge his duties
such as permitting them to commit brutal atrocities and other high crimes against non
combatant civilians and prisoners of the Imperial Japanese Forces in violation of the
laws and customs of war. He comes before the Supreme Court (SC) seeking to (a)
establish the illegality of Executive Order (E.O.) No. 68, (b) enjoin respondents Hussey
and Port from participating in the prosecution of petitioner’s case; and (c) to
permanently prohibit respondents from proceeding with the case of petitioners.
Petitioner argues that said E.O. was illegal as the Philippines is not a signatory
nor an adherent to The Hague Convention on Land Warfare and therefore, he was
charged of crimes not based on national nor international law. He further contends that
the participation in the prosecution of the case against him in behalf of the USA of
attorneys Hussey and Port who are not attorneys authorized by the SC to practice law
in the Philippines is a diminution of our country’s personality as an independent state
and they are not qualified to practice law in the Philippines.
ISSUE:
Whether or not E.O. No. 68, establishing a National War Crimes Office prescribing rule
and regulation governing the trial of accused war criminals is valid and constitutional.
RULING:
Yes. Art. 2, Sec. 3 of the Constitution provides that the Philippines renounces
war as an instrument of national policy and adopts the generally accepted principles of
international law as part of the nation. In accordance with the generally accepted
principle of international law, all those person military or civilian who have been guilty of
planning preparing or waging a war of aggression and of the commission of crimes and
offenses consequential and incidental thereto in violation of the laws and customs of
war, of humanity and civilization are held accountable therefor. The promulgation of said
E.O. is an exercise by the President of his power as Commander-in-Chief of all our
armed forces. When the crimes charged against petitioner were allegedly committed,
the Philippines was under the sovereignty of USA and thus we were equally bound
together with the USA and with Japan to the right and obligation contained in the
treaties between the belligerent countries. The change of our form government from
Commonwealth to Republic does not affect the prosecution of those charged with the
crime of treason committed during then Commonwealth because it is an offense against
the same sovereign people. The Military Commission is a special military tribunal
governed by a special law and not by the Rules of court which govern ordinary civil
court, and having been convened by virtue of a valid law, the Court will not interfere with
their due process.
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CO KIM CHAM VS EUSEBIO VALDEZ TAN KEH AND ARSENIO P. DIZON

FACTS:
Respondent Judge refused to take cognizance of and continue the proceedings
in petitioner’s civil case on the ground that the proclamation issued on October 23,
1944, by General Douglas MacArthur had the effect of invalidating and nullifying all
judicial proceedings and judgments of the court of the Philippines under the Philippine
Executive Commission and the Republic of the Philippines established during the
Japanese military occupation, and that, furthermore, the lower courts have no
jurisdiction to take cognizance of and continue judicial proceedings pending in the
courts of the defunct Republic of the Philippines in the absence of an enabling law
granting such authority.
Initiated during the Japanese occupation, with the Court of First Instance of
Manila. After the Liberation of the Manila and the American occupation, Judge Arsenio
Dizon refused to continue hearings on the case, saying that a proclamation issued by
General Douglas MacArthur had invalidated and nullified all judicial proceedings and
judgments of the courts of the Philippines and, without an enabling law, lower courts
have no jurisdiction to take cognizance of and continue judicial proceedings pending in
the courts of the defunct Republic of the Philippines (the Philippine government under
the Japanese)
ISSUES:
Whether the judicial acts and proceedings of the court existing in the Philippines
under the Philippine Executive Commission and the Republic of the Philippines were
good and valid and remained so even after the liberation or reoccupation of the
Philippines by the United States and Filipino forces;
Whether the proclamation issued on October 23, 1944, by General Douglas
MacArthur, Commander in Chief of the United States Army, in which he declared “that
all laws, regulations and processes of any of the government in the Philippines than that
of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control,” has invalidated all judgments and
judicial acts and proceedings of the said courts; and
If the said judicial acts and proceedings have not been invalidated by said
proclamation, whether the present courts of the Commonwealth, which were the same
court existing prior to, and continued during, the Japanese military occupation of the
Philippines, may continue those proceedings pending in said courts at the time the
Philippines were reoccupied and liberated by the United States and Filipino forces, and
the Commonwealth of the Philippines were reestablished in the Islands
RULING:
Yes. It is a legal truism in political and international law that all acts and
proceedings of the legislative, executive, and judicial departments of a de facto
government are good and valid. The question to be determined is whether the
governments established in these Islands under the names of the Philippine Executive
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Commission and Republic of the Philippines during the Japanese military occupation or
regime were de facto governments. If they were, the judicial acts and proceedings of
those governments remain good and valid even after the liberation or reoccupation of
the Philippines by the American and Filipino forces.
No. The proclamation of General MacArthur of October 23, 1944, which declared
that “all laws, regulations and processes of any other government in the Philippines than
that of the said Commonwealth are null and void without legal effect in areas of the
Philippines free of enemy occupation and control,” has not invalidated the judicial acts
and proceedings, which are not a political complexion, of the courts of justice in the
Philippines that were continued by the Philippine Executive Commission and the
Republic of the Philippines during the Japanese military occupation, and that said
judicial acts and proceedings were good and valid before and now good and valid after
the reoccupation of liberation of the Philippines by the American and Filipino forces.
Yes. It is a legal maxim, that excepting that of a political nature, “Law once
established continues until changed by some competent legislative power. It is not
changed merely by change of sovereignty.” (Joseph H. Beale, Cases on Conflict of
Laws, III, Summary Section 9, citing Commonwealth vs. Chapman, 13 Met., 68.) As the
same author says, in his Treatise on the Conflict on Laws (Cambridge, 1916, Section
131): “There can no break or interregnum in law. From the time the law comes into
existence with the first-felt corporateness of a primitive people it must last until the final
disappearance of human society. Once created, it persists until a change take place,
and when changed it continues in such changed condition until the next change, and so
forever. Conquest or colonization is impotent to bring law to an end; despite change of
constitution, the law continues unchanged until the new sovereign by legislative acts
creates a change.”
It is, therefore, obvious that the present courts have jurisdiction to continue, to
final judgment, the proceedings in cases, not of political complexion, pending therein at
the time of the restoration of the Commonwealth Government.
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BORIS MEJOFF V. THE DIRECTOR OF PRISONS

FACTS:
Petitioner Boris Mejoff is an alien of Russian descent who was brought to this
country from Shanghai as a secret operative by the Japanese forces during the latter's
regime in these Islands. Upon liberation he was arrested as a Japanese spy, by U.S.
Army Counter Intelligence Corps. Later he was handed to the Commonwealth
Government for disposition in accordance with Commonwealth Act No. 682. Thereafter,
the People's Court ordered his release. But the deportation Board taking his case up,
found that having no travel documents Mejoff was illegally in this country, and
consequently referred the matter to the immigration authorities. After the corresponding
investigation, the Board of commissioners of Immigration on April 5, 1948, declared that
Mejoff had entered the Philippines illegally in 1944, without inspection and admission by
the immigration officials at a designation port of entry and, therefore, it ordered that he
be deported on the first available transportation to Russia. The petitioner was then
under custody, he having been arrested on March 18, 1948. In May 1948 he was
transferred to the Cebu Provincial Jail together with three other Russians to await the
arrival of some Russian vessels. In July and August of that year two boats of Russian
nationality called at the Cebu Port. But their masters refused to take petitioner and his
companions alleging lack of authority to do so. In October 1948 after repeated failures
to ship this deportee abroad, the authorities removed him to Bilibid Prison at Muntinlupa
where he has been confined up to the present time, inasmuch as the Commissioner of
Immigration believes it is for the best interests of the country to keep him under
detention while arrangements for his departure are being made.
ISSUE:
Whether or not Mejoff should be released from prison awaiting his deportation.
RULING:
Yes. The Supreme court held that Mejoff should be released from custody and to
be instituted under reasonable surveillance of the immigration in order to make sure that
he intends to keep peace and be available when the Government is set to finally deport
him. Under the Doctrine of Incorporation, the Philippine adopts the generally accepted
principles of international law, forming it as part of the law of the land, without needing
any machinery to convert it to domestic law. Moreover, the Philippines is a member of
the United Nations in its Resolution entitled “Universal Declaration of Human Rights” in
proclaiming that life and liberty and all other fundamental rights shall be applied to all
human beings. The argument or the stand that Mejoff is a threat to the security of the
country is no longer apparent since the Japan is no longer at war with the United States
of America or the Philippines.
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DONALD BAER, COMMANDER U.S. NAVAL BASE, SUBIC BAY, OLONGAPO,

ZAMBALES VS. HON. TITO V. TIZON, AS PRESIDING JUDGE OF THE COURT OF
FIRST INSTANCE OF BATAAN, AND EDGARDO GENER, RESPONDENTS.
FACTS:
Edgardo Gener was engaged in the business of logging in an area situated in
Barrio Mabayo, Bataan. His logging operations was, however, stopped by American
Naval Base authorities - who were headed by Donald Baer, the Commander of the US
Naval Base in Olongapo. Gener filed a complaint in the CFI [RTC] of Bataan praying for
a writ of preliminary injunction with restraining order against Baer for interfering with his
logging operations. Baer, on the other hand, contested the jurisdiction of the CFI [RTC]
of Bataan and invoked the doctrine of state immunity from suit. He claimed that
cessation of the logging operations within the Naval Base is within the scope of his
authority and official duty. Thus, a suit filed against him is one against a foreign
sovereign.
A clarification of the decision of this Court of May 3, 1974 is sought in a motion filed by
petitioner. Its avowed objective is to remove what for him could be a doubt as to the
effect of our decision on Civil Case No. 2984 of the Court of First Instance of Bataan.
Since a fair reading thereof - as a matter of fact even one cursory in character could
yield no other conclusion except that such pending suit in the lower court should be
dismissed, it would appear that any misgiving entertained as to any lurking ambiguity
therein is more fanciful than real. The Motion for clarification is thus denied.
ISSUE:
Whether Baer may invoke the doctrine of state immunity, thus, he is outside the
jurisdiction of the CFI [RTC] of Bataan?
Ruling:
Yes. Baer may validly invoke the doctrine of state immunity, thus, the suit against
him will not prosper. What was sought by Gener and what was granted by the
respondent Judge amounted to an interference with the performance of the duties of
Baer in the base area in accordance with the powers possessed by him under the
Philippine-American Military Bases Agreement.
His point has been made clear, "Assuming, for purposes of argument, that the
Philippine Government, through the Bureau of Forestry, possesses the "authority to
issue a Timber License to cut logs" inside a military base, the Bases Agreement
subjects the exercise of rights under a timber license issued by the Philippine
Government to the exercise by the United States of its rights, power and authority of
control within the bases; and the findings of the Mutual Defense Board, an agency of
both the Philippine and United States Governments, that "continued logging operation
by Mr. Gener within the boundaries of the U.S. Naval Base would not be consistent with
the security and operation of the Base," is conclusive upon the respondent Judge.
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TAÑADA V. ANGARA
FACTS:
Secretary Rizalino Navarro, then Secretary of DTI, signed in Marrakesh Morocco
the Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations.
By signing, Secretary Navarro, on behalf of the Philippines agreed: (1) to submit, as
appropriate the WTO Agreement for the consideration of their respective competent
authorities, with a view to seeking approval of the Agreement in accordance with their
procedures; and (2) to adopt the Ministerial Declarations and Decisions.
Thereafter, the members of the Philippine Senate received a letter from the
President of the Philippines, stating among others that "the Uruguay Round Final Act is
hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII of
the Constitution.” On a later date, they received another letter from the President of the
Philippines which stated among others that "the Uruguay Round Final Act, the
Agreement Establishing the World Trade Organization, the Ministerial Declarations and
Decisions, and the Understanding on Commitments in Financial Services are hereby
submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the
Constitution." The President of the Philippines certified the necessity of the immediate
adoption of P.S. 1083 entitled “Concurring in the Ratification of the Agreement
Establishing the World Trade Organization.” The Philippine Senate adopted Resolution
No. 97 which states its concurrence in the ratification by the President of the Philippines
of the Agreement Establishing the World Trade Organization.
Several days after the concurrence of the Philippine Senate, the present petition
was filed seeking, among others, the nullification, on constitutional grounds, of the
concurrence of the Philippine Senate in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade Organization.
ISSUE:
Whether or not the provisions of the Agreement Establishing the World Trade
Organization unduly limit, restrict and impair Philippine sovereignty specifically the
legislative power which, under Sec. 2, Article VI, 1987 Philippine Constitution is "vested
in the Congress of the Philippines
RULING:
No. While sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is however subject to restrictions and limitations
voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the
family of nations. Unquestionably, the Constitution did not envision a hermit-type
isolation of the country from the rest of the world. In its Declaration of Principles and
State Policies, the Constitution "adopts the generally accepted principles of international
law as part of the law of the land, and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity, with all nations." By the doctrine of incorporation, the
country is bound by generally accepted principles of international law, which are
considered to be automatically part of our own laws. One of the oldest and most
fundamental rules in international law is pacta sunt servanda — international
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agreements must be performed in good faith. "A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on the parties . . . A state which has
contracted valid international obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of the obligations
undertaken."
By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of their state
power in exchange for greater benefits granted by or derived from a convention or pact.
The sovereignty of a state therefore cannot in fact and in reality, be considered
absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very
nature of membership in the family of nations and (2) limitations imposed by treaty
stipulations.
Apart from the UN Treaty, the Philippines has entered into many other
international pacts — both bilateral and multilateral — that involve limitations on
Philippine sovereignty. In the said treaties, the Philippines has effectively agreed to limit
the exercise of its sovereign powers of taxation, eminent domain and police power. The
underlying consideration in this partial surrender of sovereignty is the reciprocal
commitment of the other contracting states in granting the same privilege and
immunities to the Philippines, its officials and its citizens. The same reciprocity
characterizes the Philippine commitments under WTO-GATT.
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ARTHUR LIM, ET AL. V. EXECUTIVE SECRETARY

FACTS:
In 2002, personnel from the USA Armed Forces began to arrive in Mindanao to
take part in the “Balikatan 02-1”, a simulation of joint military maneuvers pursuant to the
Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines
and the USA in 1951 as well as pursuant to the Visiting Forces Agreement (VFA)
executed in 1999. This was pursuant to the international anti-terrorism campaign
declared by them President Bush in reaction to the 3 commercial aircrafts hijacking that
smashed into the twin towers of the World Trade Center in New York City. Petitioners
filed the petition for certiorari and prohibition as citizens and lawyers attacking the
constitutionality of the joint exercise. The Solicitor General (OSG) asks that the
executive determination that the “Balikatan” exercise is covered by the VFA be given
deference, considering the role of then President Arroyo’s role as Commander-in-Chief
of the AFP, and that the action was premature as it was based merely on a fear of
future violation of the terms of reference. Furthermore, that there is lack of locus standi
because it does not involve spending of taxes and there being no proof of direct injury.
ISSUE:
Whether or not American troops may actively engage in combat in the Philippine
territory alongside Filipino soldiers under the guise of training and assistance exercise
RULING:
Yes. The Mutual Defense Treaty (MDT) is the first among many treaties whereby
the Philippines is bound. In 1992, the US-Philippine Bases Agreement lapsed and was
replaced by the VFA, the latter being upheld by the Court. VFA provides continued
relevance to the MDT all these years and 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. The VFA permits the USA personnel to engage, on an
impermanent basis, in certain “activities”, the definition of which remains undefined,
making it subject to ambiguous and wide scope of undertakings. The Vienna
Convention on the Law of Treaties which contains provisions governing interpretation of
international agreements provide that the cardinal rule of interpretation must involve an
examination of the text, which is presumed to verbalize the parties’ intentions. The
meaning of the word “activities" was deliberately made that way to give both parties a
certain leeway in negotiation. Thus, the VFA gives legitimacy to the current “Balikatan”
exercises. Both the history and intent of the MDT and the VFA support the conclusion
that combat-related activities such as the one subject of the instant petition, are indeed
authorized. The Terms of Reference are explicit enough. Par. 8 of Sec. 1 stipulates that
US exercise participants may not engage in combat "except in self-defense." The
indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1" is actually
a war principally conducted by the US government, and that the provision on self-
defense serves only as camouflage to conceal the true nature of the exercise. Neither
the MDT nor the VFA allow foreign troops to engage in an offensive war on Philippine
territory.
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TOMOYUKI YAMASHITA VS. WILHELM D. STYER COMMANDING GENERAL

UNITED STATES ARMY FORCES WESTERN PACIFIC
FACTS:
Petitioner Tomoyuki Yamashita, the commanding general of the 14th army group
of the Japanese Imperial Army in the Philippines, after his surrender became a prisoner
of war of the United States of America but was later removed from such status and
placed in confinement as an accused war criminal charged before an American Military
Commission constituted by respondent Lieutenant General Styer, Commanding General
of the United States Army Forces, Western Pacific.
Filing for habeas corpus and prohibition against respondent, he asks that he be
reinstated to his former status as prisoner of war, and that the Military Commission be
prohibited from further trying him. He questions, among others, the jurisdiction of said
Military Commission. The United States Supreme Court denied the application of
General Tomoyuki Yamashita, the commanding officer of the Japanese forces in the
Philippines, who was also military governor of the Philippines, for leave to file a petition
for writ of habeas corpus and the writ of prohibition. Based upon Congress's war power,
a military commission appointed by Commander of the United States Armed Forces,
Western Pacific, which command included the Philippine Islands, had jurisdiction to try
the General as an "enemy belligerent" on a charge of violating the law of war. In this
case there was no "termination of war" and peace had not been agreed upon, even
though actual hostilities in the field had ended. The Japanese General had failed to
meet his affirmative duty to take appropriate steps within his power to protect prisoners
of war and the civilian population from violations of the law of war during the time
Japanese forces occupied the Philippines
ISSUE:
Should the petitions for habeas corpus and prohibition be granted in this case?
Was the Military Commission validly constituted by respondent, therefore having
jurisdiction over the war crimes?
RULING:
A petition for habeas corpus is improper when release of petitioner is not sought.
It seeks no discharge of petitioner from confinement but merely his restoration to his
former status as a prisoner of war, to be interned, not confined. The relative difference
as to the degree of confinement in such cases is a matter of military measure,
disciplinary in character, beyond the jurisdiction of civil courts. Prohibition cannot issue
against one not made party respondent. Neither may the petition for prohibition prosper
against Lt. Gen. Wilhelm D. Styer. The Military Commission is not made party
respondent in this case, and although it may be acting, as alleged, without jurisdiction,
no order may be issued in these case proceedings requiring it to refrain from trying the
petitioner.
The Court further ruled that it has no jurisdiction to entertain the petition even if
the commission be joined as respondent. As it has said, in Raquiza vs. Bradford (pp.
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50, 61, ante), “. . . an attempt of our civil courts to exercise jurisdiction over the United
States Army before such period (state of war) expires, would be considered as a
violation of this country’s faith, which this Court should not be the last to keep and
uphold.”
Under the laws of war, a military commander has an implied power to appoint
and convene a military commission. This is upon the theory that since the power to
create a military commission is an aspect of waging war, military commanders have that
power unless expressly withdrawn from them.
By the Articles of War, and especially Article 15, the Congress of the United States has
explicitly provided, so far as it may constitutionally do so, that military tribunals shall
have jurisdiction to try offenders or offenses against the laws of war in appropriate
cases.
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EREMES KOOKOORITCHKIN V. THE SOLICITOR GENERAL

FACTS:
Eremes Kookooritchkin applies for Philippine citizenship naturalization under the
provisions of Commonwealth Act 473, as amended by Act 535. He filed his petition for
naturalization accompanied with supporting affidavits of two citizens, copy of a
declaration of intention sworn in July, 1940, and proper notice of the hearing. It was
established at the hearing that the petitioner is a native-born Russian.The petition was
finally set for hearing on December 18, 1941, but it was held on that date because the
province was invaded by the Japanese forces on December 14, and the case remained
pending until the records were destroyed during the military operations for liberation in
March, 1945. The case was declared reconstituted on May 10, 1947, and the evidence
was presented on August 28 and September 30, 1947. On the same day resolution was
issued granting the petition.
Appellant claims that the lower court erred in not finding that the declaration of
intention to become a Filipino citizen filed by appellee is invalid and insufficient as a
basis for the petition of naturalization. The question calls for the application of the
following provision of section 5 of the Revised Naturalization Law that “no declaration
shall be valid until entry for permanent residence has been established and a certificate
showing the date, place and manner of his arrival has been issued.” Appellant alleges
that no documentary or testimonial evidence was introduced to establish the fact that
appellee had lawfully been admitted into the Philippines for permanent residence.
Appellant further alleges that in the oral test at the hearing, it was demonstrated
that petitioner has only a smattering of Bicol, the Filipino language that petitioner alleges
to know, and he cannot speak it as he was not able to translate from English to Bicol
questions asked by the court and the provincial fiscal, although, in the continuation of
the hearing on September 30, 1947, "surprisingly enough, he succeeded answering
correctly in Bicol the questions propounded by his counsel, however, he fumbled and
failed to give the translation of such a common word as 'love' which the fiscal asked of
him.
ISSUE:
Whether or not the naturalization of the petitioner was invalid.
RULING:
No. The undisputed fact that the petitioner has been continuously residing in the
Philippines for about 25 years, without having been molested by the authorities, who are
presumed to have been regularly performing their duties and would have arrested
petitioner if his residence is illegal, as rightly contended by appellee, can be taken as
evidence that he is enjoying permanent residence legally. The Court concluded that
petitioner's declaration is valid under section 5 of the Naturalization Law, failure to
reconstitute the certificate of arrival notwithstanding. What an unreconstituted document
intended to prove may be shown by other competent evidence.
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Furthermore, the law has not set a specific standard of the principal Philippine
languages. A great number of standards can be set. There is a reason to believe that
the lower court's pronouncement is well taken considering the fact that, after he was
liberated in 1942 from the Japanese in the Naga prison, petitioner joined the guerrilla in
the Bicol region, took part in encounters and skirmishes against the Japanese, and
remained with the guerrilla until the Americans liberated the Bicol provinces. If appellee
with his smattering of Bicol was able to get along with his Bicol comrades in the
hazardous life of the resistance movement, the Court believes that his knowledge of the
language satisfies the requirement of the law.
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NORTH SEA CONTINENTAL SHELF CASES FEDERAL REPUBLIC OF GERMANY

V. DENMARK; FEDERAL REPUBLIC OF GERMANY V. NETHERLANDS
JUDGMENT OF 20 FEBRUARY 1969
FACTS:
That the boundaries between their respective areas of the continental shelf in the
North Sea and the area claimed by the Federal Republic of Germany, should be
determined by the application of the principle of equidistance as set forth in Article 6 of
the Geneva Convention of 1958 on the Continental Shelf, which by January 1, 1969 had
been ratified or acceded to by 39 states but to which Germany was not a party, was the
basis of Denmark’s and the Netherland’s contention.
Because the use of the delimitation method was not merely a conventional
obligation, but a rule that was part of the corpus of general international law and like
other rules of general or customary international law, which was binding automatically
on Germany, independent of any specific assent, direct or indirect, given by Germany,
Denmark and the Netherland’s contended that Germany was bound to accept the
delimitation on an equidistance basis.
The view that customary rules of international law determined the boundaries of
areas located on the continental shelf between their countries and the Federal Republic
of Germany was contended by Denmark and the Netherlands.
ISSUE:
WON delimitation be the object of an equitable agreement between the states
involved?
RULING:
Yes. Delimitation must be the object of an equitable agreement between the
states involved. As stipulated in Article 6 of the Geneva Convention, equidistance
principle is not part of customary international law. Article 6 makes the obligation to use
the equidistance method a secondary one which comes into play only when agreements
between the parties are absent. Although the principle of equidistance is not given a
fundamental norm-creating character by Article 6, which is necessary to the formation of
a general rule of law.
In this case, after taking into consideration all relevant circumstances, the
delimitation here is to be excused by equitable agreement.
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SOUTH WEST AFRICA CASE

LIBERIA V. SOUTH AFRICA (2ND PHASE) | 1966 | ICJ
FACTS:
On November 4, 1960, Ethiopia and Liberia, as former States Members of the
League of Nations, instituted separate proceedings against South Africa in a case
concerning the continued existence of the League of Nations Mandate for South West
Africa and the duties and performance of South Africa as mandatory Power. The Court
was requested to make declarations to the effect that South West Africa remained a
territory under a Mandate, that South Africa had been in breach of its obligations under
that Mandate, and that the Mandate and hence the mandatory authority were subject to
the supervision of the United Nations. On May 20, 1961, the Court made an Order
finding Ethiopia and Liberia to be in the same interest and joining the proceedings each
had instituted. South Africa filed four preliminary objections to the Court’s jurisdiction. In
a Judgment of December 21, 1962, the Court rejected these and upheld its jurisdiction.
After pleadings on the merits had been filed within the time-limits fixed at the request of
the Parties, the Court held public sittings from March 15 to November 29, 1965 in order
to hear oral arguments and testimony, and judgment in the second phase was given on
July 18, 1966. By the casting vote of the President — the votes having been equally
divided (7-7) — the Court found that Ethiopia and Liberia could not be considered to
have established any legal right or interest appertaining to them in the subject-matter of
their claims, and accordingly decided to reject those claims.
ISSUE:
Whether or not any legal interest was vested in individual members of the
League of Nations as regards the ‘conduct’ clauses of the Mandate or whether the
obligation was owed to the members of the League of Nations generally.
RULING:
No. Individual member States of the League could take part in the administrative
process only through their participation in the activities of the organs by means of which
the League was entitled to function. They had no right of direct intervention relative to
the mandatories; this was the prerogative of the League organs. The manner in which
the mandate instruments were drafted only lends emphasis to the view that the
members of the League generally were not considered as having any direct concern
with the setting up of the various mandates. Furthermore, while the consent of the
Council of the League was required for any modification of the terms of the mandate, it
was not stated that the consent of individual members of the League was additionally
required. Individual members of the League were not parties to the various instruments
of mandate, though they did, to a limited extent, and in certain respects only, derive
rights from them. They could draw from the instruments only such rights as these
unequivocally conferred.
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ASYLUM CASE, INTERNATIONAL COURT OF JUSTICE (1950)

FACTS:
In 1949, a military rebellion broke out and Peru and was suppressed the same
day. The following day, a decree was published charging a political party, the American
People’s Revolutionary Party, with having directed the rebellion. De la Torre, the head
of the party was denounced as being responsible and was summoned. He was granted
asylum in the Colombian Embassy in Lima as a political refugee and was disputed by
the Peruvian Government who refused to grant a safe-conduct to enable Dela Torre to
leave the country. It appears that Colombia claimed the right of unilateral and definitive
qualification of the nature of the offense binding upon Peru.
ISSUES:
1. Whether or not Colombia has the right of unilateral qualification;
2. Whether or not Peru was under the obligation to issue a safe-conduct to enable the
refugee to leave the country in safety; and
3. Whether or not the asylum had been granted to de la Torre in violation of the
Havana Convention which provides that asylum shall not be granted to persons
accused of common crimes; and
4. Whether or not the urgency required under the Havana Convention to justify the
asylum was absent.
RULING:
1. No. The Bolivian Agreement or the treaty on extradition, as cited by Colombia
merely recognizes the institution of asylum in accordance with international law.
When it laid down the rules for extradition, it was not possible to deduce from them
conclusions concerning diplomatic asylum. The second treaty, The Havana
Convention, did not entail the right of unilateral qualification as a right of State of
refuge and an obligation upon the territorial State. Therefore, Colombia, as the State
granting asylum, was not competent to qualify the nature of offense by a unilateral
and definitive decision binding on Peru.
2. No. The clause in the Havana Convention which provided guaranties for the refugee
was applicable solely to a case where the territorial State demanded the departure
of the refugee from its territory. It was only after such a demand that the diplomatic
agent who granted asylum could, in turn, require a safe-conduct. Peru had not
demanded the departure of the refugee and was therefore not bound to deliver a
safe-conduct.
3. No. The only charge against the refugee was that of military rebellion, which was not
a common crime. The argument is ill-founded.
4. Yes. The danger which confronted de la Torre was that of having to face legal
proceedings. The Havana Convention was not intended to protect a citizen who had
plotted against the institutions of his country from regular legal proceedings. It was
not sufficient to be accused of a political offense to be entitled to receive asylum;
asylum could only intervene against the action of justice in cases where arbitrary
action was substituted for the rule of law which has not been proven here.
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NUCLEAR TESTS CASES, ICJ REPORTS

NEW ZEALAND V. FRANCE, 1974
FACTS:
On 13 February 1960 the French Government conducted the first of a series of
nuclear tests in the atmosphere at the Reggane Firing Ground in the Sahara Desert.
Sometime in the course of 1963 the decision was taken by the French Government to
move the test centre to Mururoa Atoll in the Tuamotu Archipelago. Mururoa is located
approximately 2,500 nautical miles from the nearest point of the North Island of New
Zealand and approximately 1,050 nautical miles from the nearest point of the Cook
Islands, a self-governing State linked in free association with New Zealand. The first
series of French nuclear tests in the atmosphere centered on Mururoa took place
between 2 July and 4 October 1966. Subsequent atmospheric tests in the area took
place. The conduct of atmospheric nuclear tests in the South Pacific region has given
rise to concern and apprehension on the part of the people and Government of New
Zealand and of the peoples and Governments of the State (the Cook Islands) and the
territories (Niue and the Tokelau Islands) associated with New Zealand. As soon as it
became known that the French Government had the intention to carry out these tests in
the South Pacific, the New Zealand Government made a strong protest in a note of 22
May 1963 from the New Zealand Embassy to the French Ministry of Foreign Affairs.
On May 4, 1973, the Prime Minister wrote to the French President telling him that
New Zealand was submitting the dispute to the International Court, and this was
followed on May 9, 1973, by the lodging of a New Zealand Application instituting
proceedings. Subsequently, on May 14th, a Request by New Zealand for Interim
Measures of Protection was lodged with the Court. Australia and New Zealand each
instituted proceeding against France concerning tests of nuclear weapons which France
proposed to carry out in the atmosphere in the South Pacific region. France stated that
it considered the Court manifestly to lack jurisdiction and refrained from appearing at the
public hearings or filing any pleadings.
New Zealand Application asked the Court to declare that the conduct by the
French Government of nuclear tests in South Pacific region that gave rise to radioactive
fallout constituted a violation of New Zealand's rights under international law, and that
these rights would be violated by any further such tests. The rights for which New
Zealand sought protection included rights owed erga omnes and rights owed specifically
to New Zealand. They were the right that no nuclear tests that gave rise to radioactive
fallout be conducted; the right to preservation from unjustified artificial radioactive
contamination of the terrestrial, maritime, and aerial environment; the right that no
radioactive material enter the territory of New Zealand, the Cook Islands, Niue, or the
Tokelau Islands, including their airspace and territorial waters (collectively "the
Territory"), as a result of nuclear testing; the right that no radioactive material, having
entered the Territory cause harm including apprehension, anxiety and concern to their
people and Government; and the right to freedom of the high seas, without interference
or detriment resulting from nuclear testing. These rights had their genesis in principles
of, respectively, the Partial Test Ban Treaty, the Stockholm Declaration," territorial
sovereignty, the Trail Smelter and like cases, and the law of the sea.
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A series of nuclear tests was completed by France (D) in the South Pacific. This
action made Australia and New Zealand (P) to apply to the I.C.J. demanding that
France (D) cease testing immediately. Before the case could be completed, France (D)
announced it had completed the test and did not plan any further test. So France (D)
moved for the dismissal of the application.
Court, by 8 votes to 6, indicated measures of protection, ordering inter alia that
the French Government should avoid nuclear tests causing the deposit of radioactive
fallout on the Territory. A similar Order was made in the Australian case. The Court also
decided that the next phase of the cases should be concerned with the questions of
jurisdiction and admissibility. Following the filing of Memorials by New Zealand and
Australia, the Court held oral hearings on both cases on July 10 and 11, 1974.
ISSUE:
Whether or not the French Government shall be ordered to stop the nuclear
testing.
Whether declaration made through unilateral act has effect of creating legal
obligations?
RULING:
No. By two Orders of 22 June 1973, the Court, at the request of Australia and
New Zealand, indicated provisional measures to the effect, inter alia, that pending
judgment France should avoid nuclear tests causing radioactive fall-out on Australian or
New Zealand territory. By two Judgments delivered on 20 December 1974, the Court
found that the Applications of Australia and New Zealand no longer had any object and
that it was therefore not called upon to give any decision thereon. In so doing the Court
based itself on the conclusion that the objective of Australia and New Zealand had been
achieved inasmuch as France, in various public statements, had announced its intention
of carrying out no further atmospheric nuclear tests on the completion of the 1974
series.
Yes. Court, at the request of Australia and New Zealand, indicated provisional
measures to the effect, inter alia, that pending judgment France should avoid nuclear
tests causing radioactive fall-out on Australian or New Zealand territory. By two
Judgments delivered on 20 December 1974, the Court found that the Applications of
Australia and New Zealand no longer had any object and that it was therefore not called
upon to give any decision thereon. In so doing the Court based itself on the conclusion
that the objective of Australia and New Zealand had been achieved inasmuch as
France, in various public statements, had announced its intention of carrying out no
further atmospheric nuclear tests on the completion of the 1974 series.
Declaration made through unilateral acts may have the effect of creating legal
obligations. In this case, the statement made by the President of France must be held to
constitute an engagement of the State in regard to the circumstances and intention with
which they were made. Therefore, these statements made by the France (D) are
relevant and legally binding. Application was dismissed.
The unilateral statements made by French authorities were first relayed to the
government of Australia. There was no need for the statements to be directed to any
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particular state for it to have legal effect. The general nature and characteristics of the
statements alone were relevant for evaluation of their legal implications.
By a vote of 9 to 6 the Court found that New Zealand's claim no longer had any
object and that it was therefore not called upon to give a decision on it. This conclusion
was based on a number of official statements made publicly by France in the course of
1974, which the Court decided evidenced an intention to cease conducting nuclear tests
in the atmosphere following the completion of the 1974 series. On this basis, the Court
found that the objective of New Zealand had, in effect been accomplished "in as much
as the Court finds that France has undertaken the obligation to hold no further tests in
atmosphere in the South Pacific." The dispute between New Zealand and France
having disappeared in the Court's view, New Zealand claim no longer had any object
and there was nothing on which to give judgment.'
Upon the delivery of the Judgment, the order of 22 June 1973 indicating
interim measures of protection ceased to be operative and the measures in question
lapsed.
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AUSTRALIA VS. FRANCE
I.C.J. 1974 I.C.J. 253, 457.
FACTS:
A series of nuclear tests was completed by France in the South Pacific in the
years 1966, 1067, 1968, 1970, 1971 and 1972. The main firing site used has been
Muroroa a toll some 6,000 kilometers to the east of Australian mainland. This action
made Australia and New Zealand to apply to the I.C.J. demanding that France cease
testing immediately. Before the case could be completed, France announced it had
completed the test and did not plan any further test. So, France moved for the dismissal
of the application.
On 9 May 1973, Australia and New Zealand each instituted proceeding against
France concerning tests of nuclear weapons which France proposed to carry out in the
atmosphere in the South Pacific region. France stated that it considered the Court
manifestly to lack jurisdiction and refrained from appearing at the public hearings or
filing any pleadings. The Application founds the jurisdiction of the Court on basis that
Article 17 of the General Act for the Pacific Settlement of International Disputes, 1928
with Articles 36(1) and 37 of the Statutes of Court. Australia and the French Republic
both acceded to the General Act on 21 May 1931. And, alternatively, Article 36(2) of the
Statute of the Court, where both countries have made declarations thereunder.
By two Orders of 22 June 1973, the Court, at the request of Australia and New
Zealand, indicated provisional measures to the effect, inter alia, that pending judgment
France should avoid nuclear tests causing radioactive fall-out on Australian or New
Zealand territory. By two Judgments delivered on 20 December 1974, the Court found
that the Applications of Australia and New Zealand no longer had any object and that it
was therefore not called upon to give any decision thereon. In so doing the Court based
itself on the conclusion that the objective of Australia and New Zealand had been
achieved inasmuch as France, in various public statements, had announced its intention
of carrying out no further atmospheric nuclear tests on the completion of the 1974
series.
ISSUE:
Whether a declaration made through unilateral act has effect of creating legal
obligations.
RULING:
Yes. It is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of creating legal obligations.
Declarations of this kind may be, and often are, very specific. When it is the intention of
the State making the declaration that it should become bound according to its terms,
that intention confers on the declaration the character of a legal undertaking, the State
being thenceforth legally required to follow a course of conduct consistent with the
declaration. An undertaking of this kind, if given publicly, and with an intent to be bound,
even though not made within the context of international negotiations, is binding. In
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these circumstances, nothing in the nature of a quid pro quo nor any subsequent
acceptance of the declaration, nor even any reply or reaction from other States, is
required for the declaration to take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the juridical act by which the
pronouncement by the state was made. Of course, not all unilateral acts imply
obligation; but a State may choose to take up a certain position in relation to a particular
matter with the intention of being bound-the intention is to be ascertained by
interpretation of the act. When States make statements by which their freedom of action
is to be limited, a restrictive interpretation is called for. Whether a statement is made
orally or in writing makes no essential difference, for such statements made in particular
circumstances may create commitments in international law, which does not require that
they should be couched in written form.
The unilateral statements of the French authorities were made outside the Court,
publicly and erga omnes, even though the first of them was communicated to the
Government of Australia. As was observed above, to have legal effect, there was no
need for these statements to be addressed to a particular State, nor was acceptance by
any other State required. The general nature and characteristics of these statements
are decisive for the evaluation of the legal implications, and it is to the interpretation of
the statements that the Court must now proceed. The Court is entitled to presume, at
the outset, that these statements were not made in vacuo, but in relation to the tests
which constitute the very object of the present proceedings, although France has not
appeared in the case.
The unilateral statements made by French authorities were first relayed to the
government of Australia. There was no need for the statements to be directed to any
state for it to have legal effect. The general nature and characteristics of the statements
alone were relevant for evaluation of their legal implications. It is from the actual
substance of these statements, and from the circumstances attending their making, that
the legal implications of the unilateral act must be deduced. The objects of these
statements are clear and they were addressed to the international community as a
whole, and the Court holds that they constitute an undertaking possessing legal effect.
Court finds that the unilateral undertaking resulting from these statements cannot be
interpreted as having been made in implicit reliance on an arbitrary power of
reconsideration. The Court finds further that the French Government has undertaken an
obligation the precise nature and limits of which must be understood in accordance with
the actual terms in which they have been publicly expressed. Court finds that France
has undertaken the obligation to hold no further nuclear tests in the atmosphere in the
South Pacific.
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NEW ZEALAND V. FRANCE, 1995
FACTS:
On June 13, 1995, the recently elected President of France, President Jacques
Chirac, announced that France would conduct a final series of eight nuclear weapons
tests in the South Pacific starting in September. President Chirac's announcement
broke the moratorium on nuclear testing observed by France and most other nuclear
weapon states ("nuclear powers") for the past three years. It came just a month after the
decision of the parties to the Nuclear Non-Proliferation Treaty' ("NPT") to extend treaty
indefinitely. As part of that outcome, the nuclear powers had agreed to exercise the
"utmost restraint" in nuclear testing pending the entry into force of a Comprehensive
Nuclear Test Ban Treaty. New Zealand initiated a series of intensive bilateral
representations to the French Government urging it to reconsider. New Zealand Prime
Minister wrote to the French President calling attention to the strong public reaction in
New Zealand, and indicating that the French decision had cast a cloud over relationship
between the two countries that would last as long as the nuclear tests continued.
France then responded to the New Zealand documents which had been
forwarded to it by the Court. By letter of August 28, 1995, the French Ambassador in
The Hague informed the Court that, in the view of his Government, there was no basis
upon which the Court might find, even prima facie, the jurisdiction to entertain New
Zealand's Requests. The 1974 case had related exclusively to atmospheric tests, as the
Court itself had found. As the Court manifestly lacked jurisdiction in the absence of the
consent of France, neither the question of the choice of a judge ad hoc, nor that of the
indication of provisional measures arose, and the case should be removed from the
General List.
To prevent these tests, New Zealand filed a "Request for an Examination of the
Situation" together with a request for the indication of provisional measures in
accordance with paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests Case
(New Zealand v. France). This unusual attempt at seizing the Court resulted from two
facts. Firstly, there no longer existed a jurisdictional link between New Zealand and
France and, secondly, the Court in its Judgment of 1974 which declared an earlier case
involving French nuclear tests moot owing to the unilateral declaration of France
announcing its intent to cease all atmospheric nuclear tests, opened the way to come
back to the Court if France would not comply with that commitment. Paragraph 63 of the
1974 Judgment expressly empowered the Applicant "to request an examination of the
situation in accordance with the provisions of the Statute, ... if the basis of this
Judgment were to be affected".
ISSUE:
Whether the basis of the 1974 Judgment would be affected by the French tests
announced for 1995.
RULING:
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Yes. Court found by a majority of 12 to 3, that the basis of the Judgment was
France's undertaking not to conduct any further atmospheric- nuclear tests, and it was
only in the event of a resumption of atmospheric tests that basis of the Judgment would
have been affected. The Court said that, having taken the position that its 1974
Judgment dealt exclusively with atmospheric nuclear tests, it could not now take
account of New Zealand's arguments relating to the conditions in which France
conducted its underground nuclear tests since 1974 or the development of international
law in recent decades. On the same basis, the Court held that it had to dismiss the
"Application for Permission to Intervene" submitted by Australia and the similar
applications submitted by Samoa, Solomon Islands, the Marshall Islands, and
Federated States of Micronesia, all of which were proceedings incidental to the New
Zealand Request.
In giving its Order, the Court was not taking any position on the legality of
France's nuclear tests or the conditions in which it conducted them. Indeed, the Court
specifically said that its Order was "without prejudice to the obligations of States to
respect and protect the natural environment, obligations to which both New Zealand and
France have in the present instance reaffirmed their commitment."
According to the Court, the application of New Zealand which led to the 1974
Judgment concerned the question of atmospheric tests exclusively, and not all testing
that might result in radio-active fall-out on New Zealand territory. Since the commitment
given by France in 1974 concerned only the cessation of atmospheric tests, the Court
could not find that the basis of the 1974 Judgment would be affected by the new series
of underground testing. Due to the unambiguous wording of the French commitment,
the Court could not even take into account the developments of international
environmental law and the undisputed possibility of radio-active fall-out originating from
underground testing. Accordingly, the Court had to dismiss the request of New Zealand
as well as the applications to intervene filed by Australia, Samoa, the Solomon Islands,
the Marshall Islands as well as the Federated States of Micronesia. Three Judges,
Judges Weeramantry, Koroma and ad hoc judge Sir Geoffrey Palmer dissented. They
relied on the developments in international environmental law and focused on that part
of paragraph 63 of the 1974 Judgment which concerned the causing of radio-active fall-
out without, however, taking account of the express reference made to the atmospheric
origin of the fall-out in the 1974 Judgment. Their dissents reflect, in particular, a concern
for the protection of the environment, a view shared by the Court which had underlined
expressly the obligations of States to respect and protect the natural environment.
Court ruled that "once the Court has found that a State has entered into a
commitment concerning its future conduct it is not the Court's function to contemplate
that it will not comply with it. However, the Court observes that if the basis of this
Judgment were to be affected, the Applicant could request an examination of the
situation in accordance with the provisions of the Statute; the denunciation by France,
by letter dated 2 January 1974, of the General Act for the Pacific Settlement of
International Disputes, which is relied on as a basis of jurisdiction in the present case,
cannot constitute by itself an obstacle to the presentation of such a request". The Court
used its undoubted powers of regulating its own procedure to devise a procedure sui
generis.
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LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS | 1996 | ICJ

FACTS:
By a letter dated 19 December 1994, filed in the Registry on 6 January 1995, the
Secretary-General of the United Nations officially communicated to the Registry a
decision taken by the General Assembly, by its resolution 49/75 K adopted on 15
December 1994, to submit to the Court, for advisory opinion, the following question: “Is
the threat or use of nuclear weapons in any circumstance permitted under international
law?” The resolution asked the Court to render its advisory opinion “urgently”. Written
statements were filed by 28 States, and subsequently written observations on those
statements were presented by two States. In the course of the oral proceedings, which
took place in October and November 1995, 22 States presented oral statements.
On July 8, 1996, the Court rendered its Advisory Opinion. Having concluded that
it had jurisdiction to render an opinion on the question put to it and that there was no
compelling reason to exercise its discretion not to render an opinion, the Court found
that the most directly relevant applicable law was that relating to the use of force, as
enshrined in the United Nations Charter, and the law applicable in armed conflict,
together with any specific treaties on nuclear weapons that the Court might find
relevant.
ISSUE:
Whether or not the threat or use of nuclear weapons in any circumstance is
permitted under international law
RULING:
Yes. From a consideration of customary and conventional law, it concluded that
the use of nuclear weapons could not be seen as specifically prohibited on the basis of
that law, nor did it find any specific prohibition of the use of nuclear weapons in the
treaties that expressly prohibited the use of certain weapons of mass destruction.
The Court laid emphasis on two cardinal principles and rules of international
humanitarian law applicable in armed conflict and of the law of neutrality: (a) the first
being aimed at the distinction between combatants and non-combatants; States must
never make civilians the object of attack and must consequently never use weapons
that are incapable of distinguishing between civilian and military targets while (b)
according to the second of those principles, unnecessary suffering should not be
caused to combatants. It follows that States do not have unlimited freedom of choice in
the weapons they use. The Court also referred to the Martens Clause, according to
which civilians and combatants remained under the protection and authority of the
principles of international law derived from established custom, the principles of
humanity and the dictates of public conscience.
The Court was led to observe that “in view of the current state of international law
and of the elements of fact at its disposal, [it] cannot conclude definitively whether the
threat or use of nuclear weapons would be lawful or unlawful in an extreme
circumstance of self-defence, in which the very survival of a State would be at stake”.
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PAQUETTE HABANA 175 US 677 1990

FACTS:
Owners of two separate fishing vessels namely Paquette Habana and Lola
appeal the decree of a district court of the USA which condemned two fishing vessels
and its cargoes as prizes of war. The vessels were regularly engaged in fishing on the
Cuban coast and were sailing in and out of Havana and under the Spanish flag. The
owners were not aware of the existence of a war until they were stopped by US
squadron. No incriminating materials were found and they did not make any attempt to
resist their arrest. Each vessel was sold by auction – the Paquete Habana for $490, and
the Lola for $800. There was no evidence in record for the value of either vessel or
cargo. The owners appealed, arguing that both customary law and writings of leading
international scholars recognized an exemption from seizure at wartime of coastal
fishing vessels.
ISSUES:
Whether or not coastal fishing vessels with their cargoes and crews are excluded
from prizes of war.
RULING:
Yes. From the time of the War of Independence, the doctrine that coastal
fishermen, together with their vessels and crews are exempted from capture as prizes
of war, was explicitly recognized by the British and French governments. It is an
established rule in international law that coastal fishing vessels with their equipment and
supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of
catching and bringing in fish are exempt from capture as prizes of war. Although not
reduced into treaties or statutory laws, courts were obliged to take judicial notice and
give effect to said rule. Decrees condemning the vessels are reversed and the proceeds
of the sale of each vessel were ordered to be restored to the respective claimant, with
compensatory damage and costs.
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PREAH VIHEAR TEMPLE CASE

CAMBODIA VS. THAILAND
ICJ REPORTS, 1962
FACTS
Preah temple was an ancient and significant temple due to its cultural and
historical value. It was situated on the border of Thailand and Cambodia. Though
Thailand was the historical owner of that area in 1904 when Cambodia was a colony of
French they came to an agreement with Thailand; they agreed to divide the border
according to the watershed. After that, A French – Siamiz (now known as Thailand)
commission they drew a detailed map of the border where thought by mistake but very
clearly marked the Preah Vihear in the territory of Cambodia, Thai Government never
object after officially receiving that map. Later, after several years when Thai Prince
went to visit that Temple, he sow the French Flag over the temple but did not raise any
objection. Cambodia complained that Thailand had occupied a piece of its territory
surrounding the ruins of the Temple of Preah Vihear, a place of pilgrimage and worship
for Cambodians, and asked the Court to declare that territorial sovereignty over the
Temple belonged to it and that Thailand was under an obligation to withdraw the armed
detachment stationed there since 1954. Thailand filed preliminary objections to the
Court’s jurisdiction, which were rejected in a Judgment given on 26 May 1961.
The main objection came by Thailand when UNESCO declared The Preah
Vihear as a world heritage and thus take million dollar project to save it, they demanded
it as their land and put some military personnel, on the other hand, Cambodia rejected
that claim. On gradual dispute, it went to International Court of Justice.
ISSUE:
Whether Cambodia had sovereignty over the territory of Preah Vihear?
RULING:
Yes. Cambodia had sovereignty over whole territory of the promontory of Preah
Vihear and that, in consequence, Thailand was under an obligation to withdraw from
that territory the Thai military or police forces. The commission that marked the map
finally was a joint commission form both party and both of the party adopted the same
without any objection, therefore, Cambodia had sovereignty over that area according to
their treaty.
Court noted that a Franco-Siamese Treaty of 1904 provided that, in the area
under consideration, the frontier was to follow the watershed line, and that a map based
on the work of a Mixed Delimitation Commission showed the Temple on the Cambodian
side of the boundary. Thailand asserted various arguments aimed at showing that the
map had no binding character. One of its contentions was that the map had never been
accepted by Thailand or, alternatively, that if Thailand had accepted it, it had done so
only because of a mistaken belief that the frontier indicated corresponded to the
watershed line. The Court found that Thailand had indeed accepted the map and
concluded that the Temple was situated on Cambodian territory. It also held that
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Thailand was under an obligation to withdraw any military or police force stationed there
and to restore to Cambodia any objects removed from the ruins since 1954.
Also, as is generally the case in international law, which places the principal
emphasis on the intentions of the parties, the law prescribes no particular form, parties
are free to choose what form they please provided their intention clearly results from it,
as the sole relevant question is whether the language employed in any given
declaration does reveal a clear intention.
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RIGHT OF PASSAGE OVER INDIAN TERRITORY (PORTUGAL V. INDIA)

FACTS:
The case concerning right of passage over Indian territory (Preliminary
Objections) between Portugal and India was submitted by Application CIE the
Portuguese Government requesting the Court to recognize and declare that Portugal
was the holder or beneficiary of a right of passage between its territory of Damao
(littoral Damao) and its enclaves of Dadra and Nagar-Aveli and between each of the
1at.ter and that this right comprises the faculty of transit for persons and goods,
including armed forces, without restrictions or difficulties and in the manner and to the
extent required by the effective exercise of Portuguese sovereignty in the said
territories, that India has prevented and continues to prevent the exercise of the right in
question, thus committing an offence to the detriment of Portuguese Sovereignty over
the enclaves and violating its international obligations and to adjudge that India should
put an immediate end to this situation by allowing Portugal to exercise the right of
passage thus claimed. The Application expressly referred to Article 36, paragraph 2, of
the Statute and to the Declarations by which Portugal and India have accepted the
compulsory jurisdiction of the Court.
The Government of India for its part raised six Preliminary Objections to the
jurisdiction of the Court which were based on the following grounds: The First
Preliminary Objection was to the effect that a condition in the Portuguese Declaration of
December 19th, 1955, accepting the jurisdiction of the Court reversed for that
Government "the right to exclude from the scope of the present Declaration at any time
during its validity any given category or categories of disputes by notifying the Secretary
General of the United Nations and with effect from the moment of such notification" and
was incompatible with the object and purpose of the Optional Clause, with the result
that the Declaration of Acceptance was invalid. The Second Preliminary Objection was
based on the allegation that the Portuguese Application of December 22nd, 1955, was
filed before a copy of the Declaration of Portugal accepting the compulsory jurisdiction
of the Court could be transmitted to other parties to the Statute by the Secretary
General in compliance with Article 36, paragraph 4, of the Statute. The filing of the
Application had thus violated the equality, mutuality and reciprocity to which India was
entitled under the Optional Clause and under the express condition of reciprocity
contained in its Declaration of February 28th, 1940, accepting the compulsory
jurisdiction of the Court. The Third Preliminary Objection was based on the absence,
prior to the filing of the Application, of diplomatic negotiations which would have made it
possible to define the subject matter of the claim. The Fourth Preliminary Objection
requested the Court to declare that since India had ignored the Portuguese Declaration
before the Application was filed, India had been unable to avail itself on the basis of
reciprocity of the condition in the Portuguese Declaration enabling it to exclude: from the
jurisdiction of the Court the dispute which was the subject matter of the Application. The
Fifth Preliminary Objection was based on the reservation in the Indian Declaration of
Acceptance 'which excludes from the jurisdiction of the Court disputes in regard to
questions which by international law fall exclusively within the jurisdiction of the
Government of India. That Government asserted that the facts and the legal
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considerations adduced before the Court did not permit the conclusion that there was a
reasonably arguable case for the contention that the subject matter of the dispute was
outside its domestic jurisdiction. Finally, in The Sixth Preliminary Objection, the
Government of India contended that the Court was without jurisdiction on the ground
that India's Declaration of Acceptance was limited to "disputes arising after February 5th
1930 with regard to situations or facts subsequent to the same date." The Government
of India argued: first, that the dispute submitted to the Court by Portugal did not arise
after February 5th, 1930 and, secondly, that in any case, it was a dispute with regard to
situations and facts prior to that date.
ISSUE:
Whether or not the six Preliminary Objections should be given due course.
RULING
The Court rejected four of the preliminary objections raised by India and joined
the other two to the merits. In a second Judgment, delivered on 12 April 1960, after
rejecting the two remaining preliminary objections, the Court gave its decision on the
claims of Portugal, which India maintained were unfounded. The Court found that
Portugal had in 1954 the right of passage claimed by it but that such right did not extend
to armed forces, armed police, arms and ammunition, and that India had not acted
contrary to the obligations imposed on it by the existence of that right.
With regard to the First Preliminary Objection to the effect that the Portuguese
Declaration was invalid for the reason that the condition enabling Portugal to exclude at
any time from the scope of that Declaration any given categories of disputes by mere
notification to the Secretary-General, the Court said that the words used in the
condition, construed in their ordinary sense, meant simply that a notification under that
condition applied only to disputes brought before the Court after the date of the
notification. No retroactive effect could thus be imputed to such a notification. In this
connection the Court referred to the principle which it had laid down in the Nottebohm
case in the following words: "An extrinsic fact such as the lapse of the Declaration by
reason of the expiry of the period or of denunciation cannot deprive the Court of the
jurisdiction already established." The Court added that this principle applied both to total
denunciation, and to partial denunciation as contemplated in the impugned condition of
the Portuguese Declaration. The Court then dealt with the Second Objection based on
the allegation that as the Application was filed before Portugal's acceptance of the
Cour1:'s jurisdiction could be notified by the Secretary-General to 'the other Signatories,
the filing of the Application violated the equality, mutuality and reciprocity to which India
was entitled under the Optional Clause and under the express condition contained in its
Declaration. The Court noted that two questions had to be considered: first, in filing its
Application on the day following the deposit of its Declaration of Acceptance, did
Portugal act in a manner contrary to the Statute; second, if not, did it thereby violate any
right of India under the Statute or under its Declaration. On the Third Preliminary
Objection which invoked the absence of diplomatic negotiations prior to the filing of the
Application, the Court held that a substantial part of the exchanges or views between
the Parties prior to the filing of the Application was devoted to the question of access to
the enclaves, that the correspondence and notes laid before the Court revealed the
Chapter 1 and 2
repeated complaints of Portugal on account of denial of transit facilities, and that the
correspondence :showed that negotiations had reached a deadlock. Assuming that
Article 36, paragraph 2, of the Statute by referring to legal disputes, did require a
definition of the dispute through negotiations, the condition had been complied with.
The Court then dealt with the Fourth Preliminary Objection which was also
concerned with the manner in which the Application was filed. The Court merely
recalled what it had said in dealing with the Second Objection, in particular that the
Statute did not prescribe 'my interval between the deposit of a Declaration of
Acceptance and the filing of an Application. In its Fifth Objection, India relied on a
reservation in its own Declaration of Acceptance which excludes from the jurisdiction of
the Court disputes with regard to questions which by international law fall exclusively
within the jurisdiction of the Government of India, and asserted that the facts and the
legal considerations adduced before the Court did not permit the conclusion that there
was a reasonably arguable case for the contention that the subject matter of the dispute
was outside the exclusive domestic jurisdiction of India. The Court noted that the facts
on which the Submissions of India were based were not admitted by Portugal and that
elucidation of those facts and their legal consequences would involve an examination of
the practice of the British. Indian and Portuguese authorities in the matter of the right of
passage, in particular to determine whether this practice showed that the Parties had
envisaged this right as a question which according to international law was exclusively
within the jurisdiction of the territorial sovereign. All these and similar questions could
not be examined at this preliminary stage without prejudging the merits. Accordingly, the
Court decided to join the Fifth Objection to the merits. Finally, in dealing with the Sixth
Objection based on the reservation ratione temporis in the Indian Declaration limiting
the Declaration to disputes arising after February 5th, 1930, with regard IO situations or
facts subsequent to that date, the Court noted that to ascertain the date on which the
dispute had arisen it was necessary to examine whether or not the dispute was only a
continuation of a dispute on the right of passage which had arisen before 1930. The
Court having heard conflicting arguments regarding the nature of the passage formerly
exercised was not in a position to determine these two questions at this stage.
Chapter 1 and 2
CORFU CHANNEL CASE UNITED KINGDOM V. ALBANIA

JUDGMENT OF 9 APRIL 1949
FACTS:
Albanian (D) forces fired at British warships which were sailing though the North
Corfu Channel. The Albanian government maintained that foreign ships had no right to
pass through Albanian territorial waters without prior notification and permission from its
authorities when the United Kingdom protested the actions of the Albanian forces. The
argument United Kingdom put forward was that states could send their ships for
innocent purposes through straits used for international navigation but the Albanian
refuted this on the ground that the channel did not belong to the class f international
highways through which a right of passage exists because it was exclusively for local
traffic. This channel has also been a subject of territorial disputes between Greece and
Albania, though Albania was afraid of Greek incursions.
The Corfu Channel case was the first public international law case heard before
the International Court of Justice between 1947 and 1949, concerning state
responsibility for damages at sea, as well as the doctrine of innocent passage.
ISSUE:
WON the geographical situation connecting two parts of the highs sea and not
the fact of its being used for the international navigation, be a test of whether a channel
can be considered as belonging to the class of international highways through which
passage cannot be prohibited by a coastal state in a time of peace?
RULING:
Yes. The geographical situation connecting two parts of the high seas and not
the fact of its being used for international navigation is the test of whether a channel
should be considered as belonging to the class of international highways through which
passage cannot be prohibited by a coastal state in time of peace. The North Corfu
Channel can be categorized to the class of international highways through which
passage cannot be prohibited by a coastal state in time of peace. If Albania had issued
such regulation considering the state of war with Greece, then Albania would have been
justified in issuing regulations in respect of the passage of warships through the strait.
In 1982, the U.N. Convention on the Law of the Sea was passed. It stipulates
that whether coastal or landlocked, states can enjoy the right of innocent passage
through territorial sea. But 12 nautical miles from the coast was the maximum limit of
which the territorial sea was held to exist
Chapter 1 and 2
CHORZOW FACTORY CASE

GERMANY V. POLAND | 1928 | PCIJ
FACTS:
After the World War I, Germany agreed to transfer the control of Upper Silesia
area to Poland. They embodied their agreement in the Geneva Convention. Under the
agreement, both contracting parties agreed that Poland would not forfeit any property of
Germany. In March 1915, The German Reich (“Germany”) entered into a contract with
Bayerische Stickstoffwerke A.-G. (“Bayerische”) for, among others, the construction of a
nitrate factory in Chorzów, Upper Silesia. In December 1919, another company,
Oberschlesische Stickstoffwerke A.-G. (“Oberschlesische”), was formed.
Oberschlesische would own the land and improvements of the factory while Bayerische
would continue handling the management and operations. Oberschlesische was duly
entered in the land register as owner of the property constituting the nitrate factory.
Subsequently, The Polish Court of Huta Krolewska nullified the registration of
Oberschlesische as owner of the factory, and restored the right of ownership to the
name of the Polish Treasury. Subsequently, M. Ignacy Moscicki was delegated by the
Polish government with full powers to take charge of the factory. He took possession of
the immovable and movable properties (licenses, patents, etc.) therein.
Germany initiated direct negotiations with Poland. It saw the impracticability of
restoring the factory and opted to demand reparations. However, negotiations were
unsuccessful because, among others, Poland believed that some of its claims against
Germany should be considered in offsetting the indemnity to be awarded to the latter.
Germany submitted a suit to the Permanent Court of International Justice (PCIJ)
demanding reparation from the Polish Government, claiming that according to PCIJ
Judgment No. 7, Poland’s acts contradicted the Geneva Convention.
ISSUE:
Whether or not there was a breach of the Geneva Convention entered into by the
States, thus, there exists an obligation on the part of Poland to make reparations
RULING:
Yes. The act of Poland in taking possession of the property, rights and interests
therein is clearly contrary to its obligations in the Geneva Convention. The PCIJ ruled
that it is a principle of international law and even a general conception of law that any
breach of an engagement involves an obligation to make reparation. The PCIJ ruled
that reparation is the indispensable complement of a failure to apply a convention and
there is no necessity of stating such in the convention itself. This obligation has been
recognized as an element of a positive international law. In this case, Poland’s act of
unlawful expropriation warrants not only reparations but also indemnity for damages
sustained by Germany.
Chapter 1 and 2
BARCELONA TRACTION, LIGHT AND POWER COMPANY, ICJ REPORTS, 1970

FACTS:
Barcelona Traction, Light and Power Co., Ltd. (BT), was incorporated in Canada.
It formed subsidiary companies to create electric power production in Catalonia, Spain.
According to the Belgian Government, BT’s share capital came to be very largely held
by Belgian nationals but this was denied by the Spanish Government. Servicing of the
sterling bonds issued by BT was suspended on account of the Spanish civil war.
Thereafter, the Spanish authorities refused to authorize the transfer of the foreign
currency necessary for the resumption of the servicing of the bonds and stated that the
transfers could not be authorized unless it is shown that the foreign currency was to be
used to repay debts arising from the genuine importation of foreign capital into Spain.
The company was adjudged bankrupt and BT’s assets were seized. New shares of the
subsidiary companies were created and sold by public auction to Fuerzas Electricas.
The ICJ found that in BT had not received a judicial notice of the bankruptcy
proceedings, and was not represented and took no proceedings in the Spanish courts
until June of the same year and thus did not enter a plea of opposition against the
bankruptcy judgment. In 1958, the Belgian Government filed an application with the ICJ
against the Spanish government. In 1961, it gave notice of discontinuance of the
proceedings and on 1962, submitted a new application after the negotiations failed. In
1963, the Spanish Government raised objections to the application.
ISSUES:
1. Whether or not Belguim has the jus standi to exercise diplomatic protection of
shareholders in a Canadian company; and
2. Whether or not Belgium has the right and jurisdiction to bring Spain to court for
the actions of a Canadian company.
RULING:
1. No. The general rule of international law authorizes the national state of the
company alone to exercise diplomatic protection to seek redress – no such rule
conferred such a right on the shareholder’s national state. Although BT lost all its
asset in Spain and was placed in receivership in Canada, the corporate entity of
the company ceased to exist. The company was incorporated in Canada, where
its registered office is located. While the Canadian government ceased to act on
behalf of BT, it retained its capacity to do so. Its inaction could not justify the
exercise of diplomatic protection by another government. No treaty or special
agreement was in force between Spain and Canada to have their respective
nationals’ investments enjoy certain treatments. Such a right could only stem
from a treaty or agreement, which was not initiated by both of the parties,
Belgium and Spain. Where the company’s national state was able to act, jus
standi was not conferred on the Belgian government.
2. No. The possession by the Belgian government of a right of protection was a
prerequisite to examine the second issue. Since Belgium’s jus standi has not
been established, there is no need to pronounce upon this aspect.
Chapter 1 and 2
TEXACO OVERSEAS PETROLEUM COMPANY V LIBYAN ARAB

REPUBLIC 53 ILR 387 1977
FACTS:
A decree to nationalize all Texaco’s rights, interest and property in Libya was
promulgated by Libya. This action of the Libyan Government led Texaco to request for
arbitration, but it was refused by Libya. A sole arbitrator was however appointed by the
International Court of Justice on Texaco’s request, and Libya was found to have
breached its obligations under the Deeds of Concessions and was also legally bound to
perform in accordance with their terms.
A degree to nationalize all Texaco’s right, interest and property in Libya was
promulgated by Libya. This action of the Libyan government led Texaco to request for
arbitration, but it was refused by Libya. A sole arbitrator was however appointed by the
international court of justice on Texaco’s request and Libya was found to have breached
its obligations under the deeds of concessions and was also legally bound to perform in
accordance with their terms.
ISSUE:
Whenever reference is being made to general principles of law in the
International arbitration context, can this be held to be a enough criterion for the
internationalization of a contract?
RULING:
Yes. Whenever reference is made to general principles of law in the international
arbitration context, it is always held to be a enough criterion for the internationalization
of a contract. The lack of adequate law in the state considered and the need to protect
the private contracting party against unilateral and abrupt modifications of law in the
contracting state is a justification to the recourse to general principles. Though
international law involves subjects of a diversified nature, legal international capacity is
not solely attributable to a state. A private contracting party, unlike a state, has only a
limited capacity and is limited to invoke only those rights that he derives from his
contract.
Applying Libyan law or international law in the arbitration proceedings was a
conflict encountered in this case. Though the contract itself deferred to Libyan law, the
court noted that Libyan law does not preclude the application of international law, but
that the two must be combined in order to verify that Libyan law complies with
international law. Even though the right of a state to nationalize is recognized by
international law, this right is not a enough justification not to regard its contractual
obligations.
Chapter 1 and 2
BP VS. LIBYA | 53 ILR 297

FACTS:
On 18 December 1957 the Petroleum Commission of the Government of Libya,
acting in implementation of the Libyan Petroleum Law of 1955, granted Concession 65
to Mr. Hunt, a citizen of the United States. In 1960 the Claimant company, BP
Exploration Company (Libya) Limited, acquired from Mr. Hunt an undivided one half
interest in Concession 65. The Concession contained a grant of an exclusive right for 50
years to search for and extract petroleum in a designated area of Libya, and to sell the
oil thus produced. Clause 16 of the Concession provided inter alia that the contractual
rights expressly created by this concession shall not be altered except by mutual
consent of the parties. Clause 28 of the Concession provided for the settlement of
disputes by arbitration and stated that the Concession shall be governed by and
interpreted in accordance with the principles of law of Libya common to the principles of
international law and in the absence of such common principles then by and in
accordance with the general principles of law, including such of those principles as may
have been applied by international tribunals. On 7 December 1971 the Libyan
Government passed a law nationalizing the activities of the Claimant in respect of
Concession 65. This was said by the Libyan Government to be in retaliation for certain
actions by the British Government in the Gulf. The Law provided that the State should
pay compensation to be determined within three months by a committee to be
appointed by the Minister of Petroleum. The Committee did not report within that period.
The Claimant started arbitration proceedings on 11 December 1971, contending that the
nationalization amounted to a unilateral and unacceptable repudiation of the
Concession. As the Libyan Government did not respond, the Claimants applied to the
President of the International Court of Justice for the appointment of a sole arbitrator
pursuant to the arbitration clause. The Claimant contended that in holding that the
Libyan Nationalization Law was effective to terminate the Concession the Tribunal had
made the error of permitting a party to a contract by its own breach to put an end to the
contract. This, the Claimant asserted, was contrary to the principles of Libyan law and of
international law as well as to general principles of law. The Claimant also alleged
certain procedural defects in the Award. To cure these defects the Claimant urged the
Tribunal to re-open and continue the proceedings on the merits. The Claimant invoked
Danish law—as the law governing the procedure of the arbitration—in support of its
contention that the Tribunal might and should re-open the proceedings.
ISSUE:
Whether or not there was a breach of obligations between parties.
RULING:
Yes. The BP Nationalisation Law and the subsequent implementation thereof
were each a breach of the obligations of the Respondent owed to the Claimant under
the BP Concession. The BP Nationalisation Law was effective to terminate the BP
Concession except in the sense that the BP Concession forms the basis of the
jurisdiction of the Tribunal and of the right of the Claimant to claim damages from the
Respondent before the Tribunal. The Claimant is entitled to damages arising from the
wrongful act of the Respondent, to be assessed by this Tribunal in subsequent
proceedings.
Chapter 1 and 2
SAUDI ARABIA VS. ARABIAN AMERICAN OIL COMPANY

FACTS:
Article 1 of the 1933 concession agreement provided that “the government herby
grants to the company the terms and conditions hereinafter mentioned and with respect
to the are defined below, the exclusive right for the period of 60 years from the effective
date hereof to explore prospect drill, extract, treat, manufacture, transfer, deal with carry
away and export petroleum, thus, under concession, Aramco has the exclusive right
1. To search for petroleum (explore and prospect)
2. To extract oil (drill for and extract)
3. To refine petroleum and produce its derivatives (treat and
manufacture)
4. To transport petroleum, to sell it abroad, and to dispose of it
commercially (transport, deal with carry away and export)
Article 22 of the 1933 concession agreement provides that “it is understood of
course that the company has thigh to use all means and facilities it may deem
necessary of advisable in order to exercise the rights granted under this contact so as to
carry out the purpose of this enterprise.
Subsequently, in 1954, the government concluded the Onassis agreement which
gave the Saudi Arabian maritime tankers LTD (SATCO) 30 years right of priority for the
transport of Saudi Arab oil.
The central point in dispute summitted to the arbitration tribunal is to determine
what rights were conferred upon Aramco by the concession agreement particularly as
regards the transport of Saudi Arab oil by Aramco
Government argument, the concession agreement purports to authorize Aramco
to explore areas supposed to contain oil deposits and in case of discovery to extract
and produce ill but not to transport by sea. The term “transport” in article 1 only
contemplated the internal transport from the side of the extraction to the port of loading
or the ras Tanura refinery for manufacture. It cannot mean external transport outside the
limits of Saudi Arabia. The exclusive right of transport by sea was not included within
the expectations of the parties as no express stipulation to this effect as included in the
agreement.
The present case is an arbitration relating to the interpretation of the 1933
Concession Agreement between the Government of the State of Saudi Arabia
(Government) and Aramco giving Aramco exclusive rights to transport oil extracted from
its concession in Saudi Arabia
ISSUE:
WON Aramco has the right to transport oil by sea.
RULING:
Yes. The exclusive right to export granted to Aramco necessarily implies the right to
transport oil by sea.
Chapter 1 and 2
• The Arbitration Tribunal cannot adopt the argument of the government without
straining the meaning of the texts
• The terms used in Article 1 of the Concession Agreement to indicate the content
of Aramco’s exclusive right must be understood in their plain, ordinary and usual
sense which is the sense accepted in the oil industry.
In its capacity as first concessionaire, Aramco enjoys indeed exclusive rights which
have the character of acquired or vested rights and which cannot be taken away from it
by the Government by means of a contract concluded with a second concessionaire,
even if that contract were equal to its own contract from a legal point of view. The
principle of respect for acquired rights is one of the fundamental principles both of public
international law and of the municipal law of most civilized States.
“To transport” means to carry beyond persons or things i.e. from one place to
another, whatever the distance between them. It does not imply and special means of
transportation. Consequently, it can apply to land, water, or sea transport. In connection
with the oil business, the methods adopted by the oil industry cannot be ignored.
• ·According to principles in interpreting concessions, any restriction on the rights
granted by a general clause must be expressed in a clear and unequivocal
manner if it is to be invoked against the concessionaire. In Article 22, only the
transportation by air was expressly excluded. The mere absence of the words
“seatransport” cannot mean its exclusion.
Chapter 1 and 2
II. Subjects of International Law

HOLY SEE V. ROSARIO, JR.
FACTS:
Petitioner is the Holy See who exercises sovereignty over the Vatican City in
Rome, Italy, and is represented in the Philippines by the Papal Nuncio while the private
respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the
real estate business. This petition arose from a controversy over a parcel of land
consisting of 6,000 sqm (Lot 5-A) registered in the name of petitioner. Said Lot 5-A is
contiguous to Lots 5-B and 5-D which are registered in the name of the Philippine
Realty Corporation (PRC). These lots were the subject of a contract to sell entered into
by Msgr. Cirilos, Jr., on behalf of petitioner and the PRC, and Ramon Licup. The parties
agreed that earnest money of P100,000 will be paid by Licup and the sellers will in turn
clear the said lots of squatters who were then occupying the same. Licup paid the
earnest money and assigned his rights over herein private respondent. Thereafter,
private respondent demanded from Msgr. Cirilos the fulfillment of the obligation of the
sellers to clear the property of squatters but such was unheeded since the squatters
refuse to vacate the lots. Msgr. Cirilos informed private respondent to undertake the
eviction himself but he counter-offered to reduce the price of the lots. Hence, the
earnest money was returned instead. Later on, private respondent discovered that
petitioner and the PRC, without notice to him, sold the lots to Tropicana.
Private respondent filed a complaint with the RTC Br. 61 of Makati City for
annulment of the sale of the 3 parcels of land, specific performance and damages
against petitioner and three other defendants: Msgr. Domingo Cirilos, Jr., the PRC and
Tropicana. Petitioner and Msgr. Cirilos separately moved to dismiss the complaint.
Petitioner, on the ground of lack of jurisdiction based on sovereign immunity from suit,
and Msgr. Cirilos, for being an improper party. The trial court denied the petitioner’s
motion to dismiss after finding that petitioner shed off its sovereign immunity by entering
into the business contract in question. Petitioner elevated the matter to the SC invoking
the privilege of sovereign immunity only on its own behalf and on behalf of its official
representative, the Papal Nuncio. Subsequently, a Motion for Intervention was filed by
the DFA adopting the allegations in the petitioner relative to its claim of sovereign
immunity from suit.
ISSUE:
Whether or not the petitioners validly invoked the privilege of sovereign immunity
RULING:
Yes. The restrictive theory of sovereign immunity provides that the immunity of
the sovereign is recognized only with regard to public acts or acts jure imperii of a state
but not with regard to private acts or acts jure gestionis. Some states passed legislation
to serve as guidelines for the executive or judicial determination when an act may be
considered as jure gestionis. In the absence of legislation defining what activities and
transactions shall be considered "commercial" and as constituting acts jure gestionis,
the logical question is whether the foreign state is engaged in the activity in the regular
course of business. If the foreign state is not engaged regularly in a business or trade,
Chapter 1 and 2
the particular act or transaction must then be tested by its nature. If the act is in pursuit
of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially
when it is not undertaken for gain or profit.
In the case at bench, petitioner has denied that the acquisition and subsequent
disposal of Lot 5-A were made for profit but claimed that it acquired said property for the
site of its mission or the Apostolic Nunciature in the Philippines. Private respondent
failed to dispute said claim. Lot 5-A was acquired by petitioner as a donation from the
Archdiocese of Manila. The donation was made not for commercial purpose, but for the
use of petitioner to construct thereon the official place of residence of the Papal Nuncio.
The decision to transfer the property and the subsequent disposal thereof are likewise
clothed with a governmental character. Petitioner did not sell Lot 5-A for profit or gain. It
merely wanted to dispose off the same because the squatters living thereon made it
almost impossible for petitioner to use it for the purpose of the donation.
Moreover, the privilege of sovereign immunity in this case was sufficiently
established by the Memorandum and Certification of the DFA. The DFA has formally
intervened in this case and officially certified that the Embassy of the Holy See is a duly
accredited diplomatic mission to the Republic of the Philippines exempt from local
jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic
mission or embassy in this country.
Chapter 1 and 2
BARCELONA TRACTION, LIGHT AND POWER COMPANY, ICJ REPORTS, 1970

FACTS:
Barcelona Traction, Light and Power Co., Ltd. (BT), was incorporated in Canada.
It formed subsidiary companies to create electric power production in Catalonia, Spain.
According to the Belgian Government, BT’s share capital came to be very largely held
by Belgian nationals but this was denied by the Spanish Government. Servicing of the
sterling bonds issued by BT was suspended on account of the Spanish civil war.
Thereafter, the Spanish authorities refused to authorize the transfer of the foreign
currency necessary for the resumption of the servicing of the bonds and stated that the
transfers could not be authorized unless it is shown that the foreign currency was to be
used to repay debts arising from the genuine importation of foreign capital into Spain.
The company was adjudged bankrupt and BT’s assets were seized. New shares of the
subsidiary companies were created and sold by public auction to Fuerzas Electricas.
The ICJ found that in BT had not received a judicial notice of the bankruptcy
proceedings, and was not represented and took no proceedings in the Spanish courts
until June of the same year and thus did not enter a plea of opposition against the
bankruptcy judgment. In 1958, the Belgian Government filed an application with the ICJ
against the Spanish government. In 1961, it gave notice of discontinuance of the
proceedings and on 1962, submitted a new application after the negotiations failed. In
1963, the Spanish Government raised objections to the application.
ISSUES:
Whether or not Belguim has the jus standi to exercise diplomatic protection of
shareholders in a Canadian company; and
Whether or not Belgium has the right and jurisdiction to bring Spain to court for the
actions of a Canadian company.
RULING:
No. The general rule of international law authorizes the national state of the
company alone to exercise diplomatic protection to seek redress – no such rule
conferred such a right on the shareholder’s national state. Although BT lost all its asset
in Spain and was placed in receivership in Canada, the corporate entity of the company
ceased to exist. The company was incorporated in Canada, where its registered office is
located. While the Canadian government ceased to act on behalf of BT, it retained its
capacity to do so. Its inaction could not justify the exercise of diplomatic protection by
another government. No treaty or special agreement was in force between Spain and
Canada to have their respective nationals’ investments enjoy certain treatments. Such a
right could only stem from a treaty or agreement, which was not initiated by both of the
parties, Belgium and Spain. Where the company’s national state was able to act, jus
standi was not conferred on the Belgian government.
No. The possession by the Belgian government of a right of protection was a
prerequisite to examine the second issue. Since Belgium’s jus standi has not been
established, there is no need to pronounce upon this aspect.
Chapter 1 and 2
REPARATION FOR INJURIES SUFFERED IN SERVICE OF THE UNITED NATIONS

1949 I.C.J. 174
FACTS:
The United Nations (UN) requested an advisory opinion from the International
Court of Justice (ICJ) on two primary questions. First, it asked whether, when an agent
of the UN is injured while performing duties relating to an individual State, the UN may
bring an international claim against the State’s government for damages caused to
either the UN or to the victim. In the event of an affirmative answer to the first question,
the UN also requested an answer on the following question: when both the UN and an
individual State have an interest in the same international claim, does the UN’s interest
in bringing the claim outweigh the State’s interest in either providing diplomatic
protection for its offending national, or bringing the claim itself, depending on the factual
circumstances present.
As a consequence of the assassination in September 1948, in Jerusalem, of
Count Folke Bernadotte, the United Nations Mediator in Palestine, and other members
of the United Nations Mission to Palestine, the General Assembly asked the Court
whether the United Nations had the capacity to bring an international claim against the
State responsible with a view to obtaining reparation for damage caused to the
Organization and to the victim. If this question were answered in the affirmative, it was
further asked in what manner the action taken by the United Nations could be
reconciled with such rights as might be possessed by the State of which the victim was
a national.
ISSUE:
Whether the sum of the international rights of the Organization comprises the
right to bring an International Claim to obtain reparation from a state in respect of the
damage caused by the injury of an agent of the organization in the Course of the
performance of his duties.
RULING:
Yes. On the first point, I (a), of the Request for Opinion the Court unanimously
reaches the conclusion that the Organization has the capacity to bring an international
claim against a State (whether a Member or non-member) for damage resulting from a
breach by that State of its obligations towards the Organization. The Court points out
that it is not called upon to determine the precise extent of the reparation which the
Organization would be entitled to recover; the measure of the reparation should depend
upon a number of factors which the Court gives as examples.
Court proceeds to examine question I (b), namely, whether the United Nations,
as an Organization, has capacity to bring an international claim with a view to obtaining
the reparation due in respect of the damage caused, not to the Organization itself, but to
the victim or to persons entitled through him. In dealing with this point the Court
analyses the question of diplomatic protection of nationals. The Court points out in this
connection that really only the Organization has the capacity to present a claim in the
circumstances referred to, inasmuch as at the basis of any international claim there
must be a breach by the defendant State of an obligation towards the Organization. In
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the present case the State of which the victim is a national could not complain of a
breach of an obligation towards itself. Here the obligation is assumed in favor of the
Organization. However, the Court admits that analogy of the traditional rule of
diplomatic protection of nationals abroad does not in itself justify an affirmative reply. In
fact, there exists no link of nationality between the Organization and its agents. This is a
new situation and it must be analyzed. Do the provisions of the Charter relating to the
functions of the Organization imply that the latter is empowered to assure its agents
limited protection?
These powers, which are essential to the performance of the functions of the
Organization, must be regarded as a necessary implication arising from the Charter. In
discharging its functions, the Organization may find it necessary to entrust its agents
with important missions to be performed in disturbed parts of the world. These agents
must be ensured of effective protection. It is only in this way that the agent will be able
to carry out his duties satisfactorily. The Court therefore reaches the conclusion that the
Organization has the capacity to exercise functional protection in respect of its agents.
The situation is comparatively simple: in the case of Member States, for these have
assumed various obligations towards the Organization.
Question No. I1 of the General Assembly refers to the reconciliation of action by
the United Nations with such rights as may be possessed by the State of which the
victim is a national. In other words, what is involved is possible competition between the
rights of diplomatic protection on the one hand md functional protection on the other.
The Court does not sate here which of these two categories of protection should have
priority and in the case of Member States it stresses their duty to render every
assistance provided by Article 2 of the Charter. It adds that the risk of competition
between the Organization and the national State can be reduced or eliminated either by
a general convention or by agreements entered into in each particular case, and it
refers further to cases that have already arisen in which a practical solution has already
been found. Finally, the Court examines the case in which the agent bears the
nationality of the defendant State. Since the claim brought by the Organization is not
based upon the nationality of the victim but rather upon his status a!; an agent of the
Organization, it does not matter whether or not the State to which the claim is
addressed regards him as its own national. The legal situation is not modified thereby.
The Court further declared that the Organization can claim reparation not only in
respect of damage caused to itself, but also in respect of damage suffered by the victim
or persons entitled through him. Although, according to the traditional rule, diplomatic
protection had to be exercised by the national State, the Organization should be
regarded in international law as possessing the powers which, even if they are not
expressly stated in the Charter, are conferred upon the Organization as being essential
to the discharge of its functions. The Organization may require entrusting its agents with
important missions in disturbed parts of the world. In such cases, it is necessary that the
agents should receive suitable support and protection. The Court therefore found that
the Organization has the capacity to claim appropriate reparation, including also
reparation for damage suffered by the victim or by persons entitled through him. The
risk of possible competition between the Organization and the victim’s national State
could be eliminated either by means of a general convention or by an agreement in any
individual case.
Chapter 1 and 2
MAVROMMATIS CASE | PCJJ, SER. A, NO. 2, 1924

FACTS:
In 1914, shortly prior to the outbreak of the First World War, Mavrommatis, a
Greek national and public works contractor resident in the Ottoman Empire, obtained
from the Ottoman authorities two sets of concessions to undertake various public works
in Palestine in the cities of Jerusalem, Jaffa, and Jordan. The first set of two
concessions, provided under contracts dated 27 January 1914, allowed, first, the
construction and working of a system of electric tramways and, second, the distribution
of electric light and power and of drinking water in the city of Jerusalem. In August 1914,
due to the outbreak of World War I, the parties postponed the execution of these
concessions by mutual agreement until the restoration of peace. After World War I,
Mavrommatis obtained renewed promises of support from his earlier backers before
submitting his pre-existing concessionary claims to the Palestine administration, which
forwarded them to the Colonial Office. In September 1921, Britain granted two
concessions for supplying and selling electricity throughout Palestine to Pinhas
Rutenberg, a Russian–Jewish engineer and businessman. The second, larger scheme
afforded him exclusive rights to exploit the waters of the Jordan River to allow a
hydroelectric and irrigation scheme. It further granted Rutenberg complete rights over
the supply of electric power throughout Mandatory Palestine, save for Jerusalem
itself. Mavrommatis, who had intended to resume work at the conclusion of the
hostilities, protested vociferously on learning of Rutenberg’s conflicting concessions.
Efforts to reach a compromise ultimately proved fruitless. Mavrommatis ‘sought
assistance from every possible source in order to further his claim’, contacting the
British press and Members of Parliament who were sympathetic to his cause. Finally, in
1924, Mavrommatis approached the Greek government to apply on his behalf to the
Permanent Court of International Court (PCIJ). The Greek government accepted to
exercise diplomatic protection. Greece’s initial submissions were two-fold: first, the
British government lacked the authority to grant the Rutenberg concessions and by
doing so had infringed Mavrommatis’ rights; and, second, according to the Treaty of
Lausanne, the British government had taken on responsibility for all of Turkey’s
obligations, which included the concessions granted to Mavrommatis by the Ottoman
authorities
ISSUE:
Whether or not British government lacked the authority to grant the Rutenberg
concessions and by doing so had infringed Mavrommatis’ rights.
RULING:
No. Unlike Article 311 of the Treaty of Sèvres which had preceded it, Protocol
XII to the Treaty of Lausanne maintained pre-existing concessions and gave no right to
expropriate them. Britain had conceded if Rutenberg’s concession granted
unconditionally an exclusive right to supply electric energy to Palestine, it would
constitute an expropriation of Mavrommatis’ concession, but stressed that Rutenberg
concession does nothing of this kind. In the UK’s view, it was particularly telling that
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Mavrommatis himself did not appear to consider his concessions to be alive. However,
the majority was of the view that Rutenberg’s ability to request the expropriation of pre-
existing concessions by the Palestine administration sufficed to constitute an
interference with the rights of Mavrommatis in breach of Protocol XII. This was true until,
in May 1924, Rutenberg ‘categorically declared’ that he was renouncing his right to
request expropriation, leaving the Mavrommatis concessions free from potential
interference. The UK addressed the Greek concerns as to Rutenberg’s good faith in
disclaiming his right to expropriate the concessions belonging to Mavrommatis, with Mr
Hogg claiming the ‘clear and unequivocal disclaimer’ was prompted directly by these
Greek doubts. The UK reminded the Court that ‘it is not really a question solely of Mr
Rutenberg’s intention; it is a question of the British Government’s intentions’, which
were firmly opposed to expropriation. This seemed to convince the Court, which found
that, while there had previously been a clear breach of Protocol XII, this breach had
occurred only between the years of 1921 and 1924, after which Rutenberg renounced
the right to request expropriation. It was therefore left for the Court to determine the
extent of any compensation due to Mavrommatis during this time. Yet the Court found
that Mavrommatis had suffered no loss. Rather, the Court recognised that, while it had
been a theoretical possibility during the time, expropriation itself had never taken place.
Despite his financial difficulties, the Court found Mavrommatis had not been inhibited in
any efforts to execute his concessions, and nor was he deprived of any tangible benefit
attributable to the grant of concessions to Rutenberg. The Court emphasised that ‘the
sole subject of inquiry was the extent, if any, to which the grant of the Rutenberg
concession had violated the international obligations of the Mandatory, and the losses, if
any, that Mavrommatis thereby sustained’. The Court agreed with British submissions
that unconnected losses, or deteriorations in value attributable to the political
instabilities of Palestine, fell outside the court’s jurisdiction under Article 26. With
particular reference to Mavrommatis’ accusation that the British government had caused
the withdrawal of his financiers, the Court found wanting any evidence of any causal link
between the two, opining instead that ‘the withdrawal of his banking support was
caused by many other factors, notably the uncertainty of the whole political situation due
to the absence of treaty relations, and not merely by the grant of the Rutenberg
concession’. Therefore, despite ruling in favour of Mavrommatis, the Permanent Court
turned down his claim for compensation, and thus specifically awarded only declaratory
rather than pecuniary relief, on the grounds that he had not suffered any monetary loss.
Chapter 1 and 2
CERTAIN EXPENSES OF THE UNITED NATIONS

INTERNATIONAL COURT OF JUSTICE
1962 I.C.J. 151, 167-68
Two United Nations programs, ONUC and UNEF, were challenged in the
International Court of Justice (ICJ) as improper expenditures of United Nations funds on
the ground that they were performed by the wrong organs of the United Nations, or that
they did not further a required purpose of the organization. Opponents of the programs
argued that they were coercive in nature and should be performed by the United
Nations Security Council, rather than the General Assembly which was carrying them
out.
Article 17, paragraph 2, of the Charter of the United Nations provides that: “The
expenses of the Organization shall be borne by the Members as apportioned by the
General Assembly.” On 20 December 1961, the General Assembly adopted a resolution
requesting an advisory opinion on whether the expenditures authorized by it relating to
United Nations operations in the Congo and to the operations of the United Nations
Emergency Force in the Middle East constituted “expenses of the Organization” within
the meaning of this Article of the Charter. The Court, in its Advisory Opinion of 20 July
1962, replied in the affirmative that these expenditures were expenses of the United
Nations. The Court pointed out that under Article 17, paragraph 2, of the Charter, the
“expenses of the Organization” are the amounts paid out to defray the costs of carrying
out the purposes of the Organization. After examining the resolutions authorizing the
expenditures in question, the Court concluded that they were so incurred. The Court
also analyzed the principal arguments which had been advanced against the conclusion
that these expenditures should be considered as “expenses of the Organization” and
found these arguments to be unfounded.
Chapter 1 and 2
MILITARY & PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA

NICARAGUA V. US | 1986 | ICJ
FACTS:
In July 1979, the Government of President Somoza was replaced by a
government installed by Frente Sandinista de Liberacion Nacional (FSLN). Supporters
of the former Somoza Government and former members of the National Guard opposed
the new government. The US – initially supportive of the new government – changed its
attitude when it found that Nicaragua was providing logistical support and weapons to
guerrillas in El Salvador. In April 1981 the United States stopped its aid to Nicaragua
and in September 1981, according to Nicaragua, the United States “decided to plan and
undertake activities directed against Nicaragua”.
The armed activities against the new Government was carried out mainly by (1)
Fuerza Democratica Nicaragüense (FDN), which operated along the border with
Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated along
the border with Costa Rica. Initial US support to these groups fighting against the
Nicaraguan Government (called “contras”) was covert. Later, the United States officially
acknowledged its support. In 1983, the budgetary legislation enacted by the United
States Congress made specific provision for funds to be used by United States
intelligence agencies for supporting “directly or indirectly military or paramilitary
operations in Nicaragua.”
Nicaragua also alleged that the United States is effectively in control of the
contras, the United States devised their strategy and directed their tactics, and that the
contras were paid for and directly controlled by the United States. Nicaragua also
alleged that some attacks against Nicaragua were carried out, directly, by the United
States military – with the aim to overthrow the Government of Nicaragua. Attacks
against Nicaragua included the mining of Nicaraguan ports, and other attacks on ports,
oil installations, and a naval base. Nicaragua alleged that aircrafts belonging to the
United States flew over Nicaraguan territory to gather intelligence, supply to the contras
in the field, and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after
refusing to accept the ICJ’s jurisdiction to decide the case. The United States at the
jurisdictional phase of the hearing, however, stated that it relied on an inherent right of
collective self-defence guaranteed in Art. 51 of the UN Charter when it provided “upon
request proportionate and appropriate assistance…” to Costa Rica, Honduras, and El
Salvador in response to Nicaragua’s acts of aggression against those countries.
ISSUE:
Whether or not the United States violated its customary international law
obligation
RULING:
Yes. First, the United States violated its customary international law obligation
not to use force against another State when its activities with the contras resulted in the
threat or use of force and when it directly attacked Nicaragua in 1983 and 1984. The
Chapter 1 and 2
prohibition on the use of force is found both in Article 2(4) of the Charter of the United
Nations (UN Charter) and in customary international law. The United States violated the
customary international law prohibition on the use of force when it laid mines in
Nicaraguan ports, attacked Nicaraguan ports, oil installations, and a naval base,
assisted the contras by “organizing or encouraging the organization of irregular forces
and armed bands… for incursion into the territory of another state” and participated “in
acts of civil strife…in another State.”
Second, the United States violated its customary international law obligation not
to intervene in the affairs of another State, when it trained, armed, equipped and
financed the contra forces or encouraged, supported and aided the military and
paramilitary activities against Nicaragua. The principle of non-intervention requires that
every State has a right to conduct its affairs without outside interference. In other words,
the principle “…forbids States or groups of States to intervene directly or indirectly in
internal or external affairs of other States.” This is a corollary of the principle of
sovereign equality of States. Nicaragua stated that the activities of the United States
were aimed to overthrow the government of Nicaragua, to substantially damage the
economy and to weaken the political system with the aim to coerce the Government of
Nicaragua to accept various political demands of the United States. The financial
support, training, supply of weapons, intelligence and logistic support given by the
United States to the contras violated the principle of non-interference. “…(N)o such
general right of intervention, in support of an opposition within another State, exists in
contemporary international law”, even if such a request for assistance is made by an
opposition group of that State.
Lastly, the United States violated its customary international law obligation not to
violate the sovereignty of another State, when it directed or authorized its aircrafts to fly
over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and
its territorial sea. The Court examined evidence and found that in early 1984 mines
were laid in or close to ports of the territorial sea or internal waters of Nicaragua “by
persons in the pay or acting on the instructions” of the United States and acting under
its supervision with its logistical support. The United States did not issue any warning
on the location or existence of mines and this resulted in injuries and increases in
maritime insurance rates. The Court found that the United States also carried out high-
altitude reconnaissance flights over Nicaraguan territory and certain low-altitude flights,
complained of as causing sonic booms. It held that a State’s sovereignty extends to its
internal waters, its territorial sea, and the airspace above its territory.
Chapter 1 and 2
ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO (DEMOCRATIC

REPUBLIC OF THE CONGO V. UGANDA) 2005, ICJ 116
FACTS:
DRC alleged that there have been military and parliamentary activities by
Uganda for a year beginning 1997. Uganda alleges, however, that it was present therein
with the latter’s consent and asserts that DRC’s consent to the presence of Ugandan
forces was renewed in 1999 by virtue of the Lusaka Agreement and has been extended
since. Kabila and the Ugandan Government had close relations and there was a
common interest in controlling anti-government rebels who were operating on the
Congo-Uganda border carrying attacks against the latter. Uganda was then allowed to
engage in military action against anti-Ugandan rebels in the Congolese territory. DRC
acknowledged that Ugandan troops were present on their territory with the consent of
the government. A series of meetings culminated in a Security Protocol along the
common border, with the desire to put an end to the existence of rebel groups, and
agreed that they would cooperate to maintain peace and security along the border. DRC
contends that this was not an invitation or acceptance by either parties to send an army
into the other’s territory.
ISSUES:
1. Whether or not there was an invasion of the DRC by Uganda;
2. Whether or not the Ugandan military presence and action on the border of Congo
was an act of self-defense and was consented to by DRC, or was an unlawful
military intervention;
3. Whether or not Uganda was an occupying power within areas of the DRC, and if
so, what obligations attached to Uganda as an occupying power;
4. Whether or not Uganda was responsible for international human rights and
humanitarian law violations and illegal exploitation of natural resources during its
military presence within the DRC;
RULING:
1. Yes. DRC had not objected to the presence or activities of Ugandan troops in its
border. The two countries had agreed that their respective armies would
“cooperate in order to insure security and peace along the common border”.
However, the consent given to Uganda to place its forces in the DRC, and to
engage in military operations, was not an open-ended consent. It was limited to
actions directed at stopping the rebels who were operating across the common
border. It did not constitute a consent to all that was to follow. None of the
treaties constituted consent by the DRC to the presence of Ugandan troops on its
territory.
2. No. The preconditions for self-defense did not exist. The unlawful military
intervention by Uganda was of such magnitude and duration that constitutes a
grave violation of the prohibition on the use of force expressed in Art. 2(4) of the
UN Charter. Moreover, by extending military, logistic, economic and financial
support to irregular forces operating on the territory of the DRC, Uganda violated
Chapter 1 and 2
the principle of non-use of force in international relations and the principle of non-
intervention.
3. Yes. Under customary international law, per Art. 42 of The Hague Regulations of
1907, territory is considered to be occupied when it is actually placed under the
authority of the hostile army, and the occupation extends only to the territory
where such authority has been established and can be exercised. Since Uganda
was the occupying power in Ituri at that time, it was under an obligation, per Art.
43 of The Hague Regulations, to take all measures in its power to restore and
ensure public order and safety in the occupied area, while respecting the laws in
force in the DRC – which was not accomplished. This had not been done. There
was credible evidence sufficient to conclude that the troops of Uganda Peoples’
Defence Forces (UPDF) committed violations of international humanitarian law
and human rights law. These violations were attributable to Uganda.
4. Yes. There was credible and persuasive evidence to conclude that officers and
soldiers of the UPDF were involved in the looting, plundering and exploitation of
the DRC’s natural resources and that the military authorities had not taken any
measures to put an end to these acts. Uganda was responsible both for the
conduct of the UPDF as a whole and for the conduct of individual soldiers and
officers of the UPDF in the DRC.
Chapter 1 and 2
SAUDI ARABIA V. NELSON (1993)

NO. 91-522
ARGUED: NOVEMBER 30, 1992 DECIDED: MARCH 23, 1993
FACTS:
Nelson a monitoring system engineer at a hospital in Riyadh, Saudi Arabia, was
recruited in the United States for employment. Upon discovery of safety defects in the
hospital’s oxygen and nitrous oxide lines, Nelson disclosed this to the hospital officials
as well as the Saudi government commission. Several months after Nelson (P) was told
by the hospital officers to ignore the problems, he was called into the hospital’s security
office and arrested. He was summarily transported to a jail cell where he was chained,
beaten, tortured and kept without food for four days. Nelson was released after he had
spent thirty-nine days in prison and could leave the country. Upon his arrival in the
United States, the Nelson’s filed suit against Saudi Arabia seeking damages for
personal injury. The Nelsons also claimed a basis of recovery in Saudi Arabia for its
failure to inform him about the hidden dangers associated with his employment. This
judgment was however appealed by Saudi Arabia.
The respondents Nelson, a married couple, filed this action for damages against
petitioners, the Kingdom of Saudi Arabia, a Saudi hospital, and the hospital's
purchasing agent in the United States. They alleged, among other things, that
respondent husband suffered personal injuries as a result of the Saudi Government's
unlawful detention and torture of him and petitioners' negligent failure to warn him of the
possibility of severe retaliatory action if he attempted to report on-the-job hazards. The
Nelsons asserted jurisdiction under the Foreign Sovereign Immunities Act of 1976, 28
U.S.C. 1605, which confers jurisdiction where an action is "based upon a commercial
activity carried on in the United States by the foreign state." The District Court dismissed
for lack of subject matter jurisdiction. The Court of Appeals reversed, concluding that
respondent husband's recruitment and hiring were "commercial activities" upon which
the Nelsons' action was "based" for purposes of 1605.
ISSUE:
Whether foreign states entitled to immunity from the jurisdiction of courts in the
United States if the action is based upon a commercial activity in the manner of a
private player within the market?
RULING:
Yes. Unless the action is based upon a commercial activity in the manner of a
private player within the market, foreign states are entitled to immunity from the
jurisdiction of courts in the United States. Hence, the torture allegation which was levied
against Saudi Arabia does not fall under the purview of the definition of commercial
activity as contained in the Foreign Sovereign Immunities Act of 1976.
On the part of Nelson his claim about not being warned of the peril attached to
his job does not have any merit because sovereign nations have no duty to warn of their
propensity for tortuous conducts. Since the action of the plaintiff is not in consonance
with commercial activity as defined in the Act, it is therefore outside the subject-matter
Chapter 1 and 2
jurisdiction of the federal courts. The prayer of Saudi Arabia dismissal was thereby
granted. Reversed.
The Nelsons' action is not "based upon a commercial activity" within the meaning
of the first clause of 1605(a)(2), and the Act therefore confers no jurisdiction over their
suit.
(a) This action is not "based upon" a commercial activity. Although the Act does
not define "based upon," the phrase is most naturally read to mean those
elements of a claim that, if proven, would entitle a plaintiff to relief under his
theory of the case, and the statutory context confirms that the phrase requires
something more than a mere connection with, or relation to, commercial activity.
Even taking the Nelsons' allegations about respondent husband's recruitment
and employment as true, those facts alone entitle the Nelsons to nothing under
their theory of the case. While these arguably commercial activities may have
led to the commission of the torts that allegedly injured the Nelsons, it is only
those torts upon which their action is "based" for purposes of the Act
(b) Petitioners' tortious conduct fails to qualify as "commercial activity" within
the meaning of the Act. This Court has ruled that the Act largely codifies the so-
called "restrictive" theory of foreign sovereign immunity, Republic of Argentina v.
Welt over, Inc, and that a state engages in commercial activity under that theory
where it exercises only those powers that can also be exercised by private
citizens, rather than those powers peculiar to sovereigns, id., at 614. The
intentional conduct alleged here (the Saudi Government's wrongful arrest,
imprisonment, and torture of Nelson) boils down to abuse of the power of the
police. However monstrous such abuse undoubtedly may be, a foreign state's
exercise of that power has long been understood for purposes of the restrictive
theory as peculiarly sovereign in nature. The Nelsons' argument that respondent
husband's mistreatment constituted retaliation for his reporting of safety
violations, and was therefore commercial in character, does not alter the fact
that the powers allegedly abused were those of police and penal officers. In any
event, that argument goes to the purpose of petitioners' conduct, which the Act
explicitly renders irrelevant to the determination of an activity's commercial
character.
(c) The Nelsons' attempt to claim failure to warn is merely a semantic ploy. A
plaintiff could recast virtually any claim of intentional tort committed by sovereign
act as a claim of failure to warn. To give jurisdictional significance to this feint of
language would effectively thwart the Act's manifest purpose to codify the
restrictive theory of foreign sovereign immunity.
Chapter 1 and 2
TINOCO CLAIMS ARBITRATION (GREAT BRITAIN V. COSTA RICA)

FACTS:
The Tinoco regime, which was the former government of Costa Rica, was
alleged by Great Britain to have granted oil concessions to a British company that had
to be honored by the present regime. The Tinoco regime that had seized power in
Costa Rica by coup was not recognized by Great Britain and the United States. When
the regime was removed, the new government nullified all Tinoco’s contracts including
an oil concession to a British company. The claim of Great Britain was that the contract
could not be repudiated because the Tinoco government was the only government in
existence at the time the contract was signed. This view was not shared by Costa Rica
(D) who claimed that Great Britain was estopped from enforcing the contract by its non-
recognition of the Tinoco regime. The matter was sent for arbitration.
ISSUE:
Whether or not a government need to conform to a previous constitution if the
government had established itself and maintained a peaceful de facto administration
and does non-recognition of the government by other government destroy the de facto
status of the government.
RULING:
No. A government need not conform to a previous constitution if the government
had established itself and maintained a peaceful de facto administration and non-
recognition of the government by other government does not destroy the de facto status
of the government. The non-recognition of the Tinoco regime by Great Britain did not
dispute the de facto existence of that regime. There is no estoppel since the successor
government had not been led by British non-recognition to change its position. Estoppel
was not found by the arbitrator. The evidence of the de facto status of the Tinoco’s
regime was not outweighed by the evidence of non-recognition. This implies that valid
contracts may be formed by an unrecognized government.
Chapter 1 and 2
2005 WORLD SUMMIT OUTCOME

14–16 SEPTEMBER 20
DEVELOPMENT
Strong and unambiguous commitment by all governments, in donor and developing
nations alike, to achieve the Millennium Development Goals by 2015.
Additional $50 billion a year by 2010 for fighting poverty.
Commitment by all developing countries to adopt national plans for achieving the
Millennium Development Goals by 2006.Agreement to provide immediate support for
quick impact initiatives to support anti-malaria efforts, education, and healthcare.
Commitment to innovative sources of financing for development, including efforts by
groups of countries to implement an International Finance Facility and other initiatives to
finance development projects in the health sector.
Agreement to consider additional measures to ensure long-term debt sustainability
through increased grant-based financing, cancellation of 100 per cent of the official
multilateral and bilateral debt of heavily indebted poor countries (HIPCs). Where
appropriate, to consider significant debt relief or restructuring for low- and middle-
income developing countries with unsustainable debt burdens that are not part of the
HIPC initiative. » Commitment to trade liberalization and expeditious work towards
implementing the development dimensions of the Doha work programmed.
The world’s leaders, meeting at United Nations Headquarters in New York from 14 to 16
September agreed to act on a range of global challenges.
TERRORISM
Clear and unqualified condemnation—by all governments, for the first time—of
terrorism “in all its forms and manifestations, committed by whomever, wherever and for
whatever purposes.”
Strong political push for a comprehensive convention against terrorism within a year.
Support for early entry into force of the Nuclear Terrorism Convention. All states are
encouraged to join and implement it as well as the 12 other antiterrorism conventions.
Agreement to fashion a strategy to fight terrorism in a way that makes the international
community stronger and terrorists weaker.
PEACEBUILDING, PEACEKEEPING, AND PEACEMAKING

Decision to create a Peacebuilding Commission to help countries transitio from
war to peace, backed by a support office and a standing fund.
New standing police capacity for UN peacekeeping operations. Agreement to
strengthen the Secretary-General’s capacity for mediation and good offices
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RESPONSIBILITY TO PROTECT
Clear and unambiguous acceptance by all governments of the collective
international responsibility to protect populations from genocide, war crimes, ethnic
cleansing and crimes against humanity. Willingness to take timely and decisive
collective action for this purpose, through the Security Council, when peaceful means
prove inadequate and national authorities are manifestly failing to do it.
HUMAN RIGHTS, DEMOCRACY AND RULE OF LAW

Decisive steps to strengthen the UN human rights machinery, backing the action
plan and doubling the budget of the High Commissioner.
Agreement to establish a UN Human Rights Council during the coming year.
Reaffirmation of democracy as a universal value, and welcome for new Democracy
Fund which has already received pledges of $32 million from 13 countries.
Commitment to eliminate pervasive gender discrimination, such as inequalities in
education and ownership of property, violence against women and girls and to end
impunity for such violence.
Ratification action taken during the Summit triggered the entry into force of the
Convention Against Corruption.
MANAGEMENT REFORM
Broad strengthening of the UN’s oversight capacity, including the Office of
Internal Oversight Services, expanding oversight services to additional agencies, calling
for developing an independent oversight advisory committee, and further developing a
new ethics office.
Update the UN by reviewing all mandates older than five years, so that obsolete ones
can be dropped to make room for new priorities.
Commitment to overhauling rules and policies on budget, finance and human resources
so the Organization can better respond to current needs; and a one-time staff buy-out to
ensure that the UN has the appropriate staff for today’s challenges.
ENVIRONMENT
Recognition of the serious challenge posed by climate change and a commitment
to act through the UN Framework Convention on Climate Change. Assistance will be
provided to those most vulnerable, like small island developing states.
Agreement to create a worldwide early warning system for all-natural hazards.
INTERNATIONAL HEALTH
Chapter 1 and 2
A scaling up of responses to HIV/AIDS, TB, and malaria, through prevention,

care, treatment and support, and the mobilization of additional resources from national,
bilateral, multilateral and private sources.
Commitment to fight infectious diseases, including a commitment to ensure full
implementation of the new International Health Regulations, and support for the Global
Outbreak Alert and Response Network of the World Health Organization.
HUMANITARIAN ASSISTANCE
Improved Central Emergency Revolving Fund to ensure that relief arrives reliably
and immediately when disasters happen.
Recognition of the Guiding Principles on Internal Displacement as an important
international framework for the protection of internally displaced persons.
UPDATING THE UN CHARTER

A decision to revise and update the Charter by:
Winding up the Trusteeship Council, marking completion of UN’s historic decolonization
role
Deleting anachronistic references to “enemy states” in the Charter.
THE DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW CONCERNING

FRIENDLY RELATIONS AND COOPERATION AMONG STATES
UNGA RESOLUTION 2625 | OCTOBER 24, 1970
1. The principle that States shall refrain in their international relations from the
threat or use of force against the territorial integrity of political independence of
any State, or in any other manner inconsistent with the purposes of the United
Nations.
2. The principle that States shall settle their international disputes by peaceful
means in such a manger that international peace and security and justice are not
endangered.
3. The duty not to intervene in matters within the domestic jurisdiction of any State,
in accordance with the Charter.
4. The duty of States to cooperate with one another in accordance with the Charter.
5. The principle of equal rights and self-determination of peoples.
6. The principle of sovereign equality of States.
7. The principle that States shall fulfill in good faith the obligations assumed by
them in accordance with the Charter.

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Chapter 1 and 2

1 Case Digests on Public International Law

I.The Nature and Sources of International Law

SHIGENORI KURODA V. MAJOR GEN. RAFAEL JALANDONI, ET AL.

CO KIM CHAM VS EUSEBIO VALDEZ TAN KEH AND ARSENIO P. DIZON

BORIS MEJOFF V. THE DIRECTOR OF PRISONS

DONALD BAER, COMMANDER U.S. NAVAL BASE, SUBIC BAY, OLONGAPO,

ARTHUR LIM, ET AL. V. EXECUTIVE SECRETARY

TOMOYUKI YAMASHITA VS. WILHELM D. STYER COMMANDING GENERAL

EREMES KOOKOORITCHKIN V. THE SOLICITOR GENERAL

NORTH SEA CONTINENTAL SHELF CASES FEDERAL REPUBLIC OF GERMANY

SOUTH WEST AFRICA CASE

ASYLUM CASE, INTERNATIONAL COURT OF JUSTICE (1950)

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