Public International Law Digests

Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada,
Rivas, Sarenas
1) COMPAGNIE DE COMMERCE ET DE NAVIGATION DEXTREME ORIENT VS. THE HAMBURG AMERIKA PACKETFACHT ACTIEN GESELLSCHAFT - Anasta !"
#SUPER LONG CASE$$$$) FACTS: - HAMBURG owned a steamship named SAMBIA, which proceeded to the port of Sai on and was ta!in the car o "e#on in to C$M%AG&I'( Apparent#), there were r*mors of impendin war "etween German) and France and other nations of '*rope( The master of the steamship was to#d to ta!e ref* e at a ne*tra# port +"eca*se Sai on was a French port,( So, to stop that, C$M%AG&I' as!ed for comp*#sor) detention of his -esse# to pre-ent its propert) from #ea-in Sai on( Howe-er, the Go-ernor of Sai on ref*sed to iss*e an order "eca*se he had not "een officia##) notified of the dec#aration of the war( - The steamship sai#ed from Sai on, and was "o*nd for Mani#a, "eca*se it was iss*ed a "i## of hea#th ") the US cons*# in Sai on( The steamship sta)ed contin*o*s#) in Mani#a and where it contends it wi## "e compe##ed to sta) *nti# the war ceases( &o attempt on the part of the defendants to transfer and de#i-er the car o to the destinations as stip*#ated in the charter part)( That B'H&, M'.'R and C$M%A&. +a ent of HAMBURG in mani#a, offered to p*rchase the car o from C$M%AG&I', "*t the #atter ne-er recei-ed the ca"#e messa es so the) ne-er answered( +o"-io*s#), - /hen a s*r-e) was done on the ship, it was fo*nd that the car o was 0wee-i#) and heatin 0 +whate-er that means,, so B'H& as!ed for co*rt a*thorit) to se## the car o and the "a#ance to "e d*mped at sea( The proceeds of the sa#e were deposited in the co*rt, waitin for orders as to what to do with it( - B'H& wrote C$M%AG&I' a ain informin the #atter of the disposition which it made *pon the car o( C$M%AG&I' answered that it was sti## waitin for orders as to what to do( - C$M%AG&I' of co*rse wanted a## the proceeds of the sa#e to "e i-en to them +dama es for the defendants1 fai#*re to de#i-er the car o to the destinations 2*n!ir! and Ham"*r ,, whi#e defendants contend that the) ha-e a #ien on the proceeds of the sa#e +amo*nt d*e to them "eca*se of the *p!eep and maintenance of the ship crew and for commissions for the sa#e of the car o,( - The tria# co*rt r*#ed in fa-or of the p#aintiffs( - $n appea#, the defendants made the ff: assi nments on appea# +that the co*rt had no 3*risdiction, that the fear of capt*re was not force ma3e*re, that the co*rt erred in conc#*din that defendant is #ia"#e for dama es for non-de#i-er) of car o, and the -a#*e of the award of dama es, - $n appea#, the p#aintiffs a#so contended that the co*rt erred in not i-in the f*## -a#*e of dama es +!asi "inawas *n e4penses n m a defendants, ISSU': /o& the master of the steamship was 3*stified in ta!in ref* e in Mani#a +therefore "ein the ca*se of the non-de#i-er) of the car o "e#on in to the p#aintiffs, C$M%AG&I' contends that the master sho*#d ha-e in mind the accepted princip#es of p*"#ic internationa# #aw, the esta"#ished practice of nations, and the e4press terms of the Si4th Ha *e Con-ention +5678,, the master sho*#d ha-e confident#) re#ied *pon the French a*thorities at Sai on to permit him to sai# to his port of destination *nder a laissez-passer or safe-cond*ct, which wo*#d ha-e sec*red "oth the -esse# and her car o from a## dan er of capt*re ") an) of the "e##i erents( The SHI%$/&'R contends that the master was 3*stified in dec#inin to #ea-e his -esse# in a sit*ation in which it wo*#d "e e4posed to dan er of sei9*re ") the French a*thorities, sho*#d the) ref*se to "e "o*nd ") the a##e ed r*#e of internationa# #aw(
H':2: - The Co*rt he#d that after e4aminin the terms and conditions of the con-ention that at the o*t"rea! of the present war, there was no s*ch enera# reco nition of the d*t) of a "e##i erent to rant ;da)s of race; and ;safe-cond*cts; to enem) ships in his har"ors, as wo*#d s*stain a r*#in that s*ch a##e ed d*t) was prescri"ed ") an) imperati-e and we## sett#ed r*#e of p*"#ic internationa# #aw, of s*ch "indin force that it was the d*t) of the master of the Sambia to re#) confident#) *pon a comp#iance with its terms ") the French a*thorities in Sai on( - It was nothin "*t a 0pio*s wish0 at #east, adherence to the practice ") an) "e##i erent co*#d not "e demanded ") -irt*e of an) con-ention, tacit or e4press, *ni-ersa##) reco ni9ed ") the mem"ers of the
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas societ) of nations< and that it ma) "e e4pected on#) when the "e##i erent is con-inced that the demand for adherence to the practice inspired ") his own commercia# and po#itica# interests o*twei hs an) ad-anta e he can hope to ain ") a ref*sa# to reco ni9e the practice as "indin *pon him( The Co*rt conc#*ded that *nder the circ*mstances s*rro*ndin the f#i ht of the Sambia from the port of Sai on, her master had no s*ch ass*rances, *nder an) we##-sett#ed and *ni-ersa##) accepted r*#e of p*"#ic internationa# #aw, as to the imm*nit) of his -esse# from sei9*re ") the French a*thorities, as wo*#d 3*stif) *s in ho#din that it was his d*t) to remain in the port of Sai on in the hope that he wo*#d "e a##owed to sai# for the port of destination desi nated in the contract of affrei htment with a laissez-passer or safecond*ct which wo*#d sec*re the safet) of his -esse# and car o en ro*te( The Co*rt a#so he#d that it was the d*t) of the ship-owner to se##, and not to 3*st transship the car o, d*e to the fact of the perisha"#e nat*re of the car o +rice, and that he was 3*stified in the de#a) of actin , so as to ascertain reasona"#) what co*rse of action to ta!e( R': 3*risdiction( It cannot "e raised on appea# for the first time(
VS.
%) COLUMBIA
PERU - Beron
Facts: In 56=6, a %er*-ian po#itica# #eader, >ictor Ra*# Ha)a de #a Torre was i-en as)#*m in the Co#om"ian 'm"ass) #ocated in %er*( The Co#om"ian am"assador re?*ested the o-ernment of %er* to a##ow de #a Torre to #ea-e the co*ntr) on the ro*nd that the Co#om"ian o-ernment ?*a#ified de #a Torre as a po#itica# ref* ee( %er* ref*sed to accept the ri ht of Co#om"ia to characteri9e *ni#atera##) the nat*re of de #a Torre@s offense( Co#om"ia "ased its c#aim on certain internationa# a reements amon :atin-American states and in addition on American internationa# #aw( Iss*e: /An Co#om"ia, on its own, can decide on the character of the offense of de #a Torre, a citi9en of %er*, with s*ch decision "indin *pon the o-ernment of %er*((( He#d: &$( The Co#om"ian o-ernment m*st pro-e that the r*#e +American internationa# #aw more partic*#ar#) re iona# or #oca# c*stom pec*#iar to :atin-American States(((, in-o!ed ") it is accordance with a constant and *niform *sa e practiced ") the States in ?*estion, and that this *sa e is the e4pression of a ri ht appertainin to the State rantin as)#*m and a d*t) inc*m"ent on the territoria# state +in this case, %er*((,( Co#om"ia c#aims that this re iona# c*stoms has "een codified ") the Monte-iedo Con-ention, "*t this ar *ment m*st fai#( The #imited n*m"er of States which ratified this Con-ention re-ea#s the wea!ness of this ar *ment( The Co#om"ian Go-ernment fai#ed to pro-e the e4istence of s*ch c*stoms as in-o!ed ") it( '-en if s*ch c*stoms e4ist, it co*#d not "e in-o!ed a ainst %er* which has rep*diated it ") refrainin from ratif)in the Monte-ideo Con-entions( The co*rt f*rther stated in its decision that the on#) so#*tion to a disp*te "etween states adherin to different set of c*stoms is to o "ac! in histor) to a time when a r*#e accepted ") "oth ro*ps of States e4ist and contin*e to app#) that r*#e(
&) NICARAGUA VS. US - Ca'!n!san (" SC n"t)s Tan*+!'!t

FACTS, In 56=B, the US made a dec#aration containin the fo##owin reser-ation: Cthis dec#aration sha## remain in force for a period of D )ears and thereafter *nti# the e4piration of B months after notice ma) "e i-en to terminate this dec#aration(E
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas In 56F=, the US deposited with the U& Sec Gen a notification referrin to the 56=B dec#aration, statin : Cthe aforesaid dec#aration sha## not app#) to disp*tes with an) Centra# American State or arisin o*t of or re#ated to e-ents in Centra# America, an) of which disp*tes sha## "e sett#ed in s*ch manner as the parties to them ma) a ree(E &icara *a fi#ed a c#aim a ainst the US for dama es in connection with mi#itar) and parami#itar) acti-ities a##e ed#) s*pported ") the US in and a ainst &icara *a( The US ar *es that p*rs*ant to the 56F= reser-ation that it made, the ICG has no 3*risdiction o-er the contro-ers), since it in-o#-es a disp*te with a Centra# American State( &icara *a ar *es that the ICG has 3*risdiction *nder the 56=B dec#aration, which was not terminated ") the s*"se?*ent 56F= dec#aration, since the US ne-er a-e the B-months notice of termination, as re?*ired ") the reser-ation that it had made in 56=B( Accordin to &icara *a, the US concei-ed, created, and or ani9ed a mercenar) arm), the contra force, in &icara *a( The co*rt fo*nd that contra force was not created ") the US, "*t that a n*m"er of the operations were decided and p#anned, if not act*a##) ") the US ad-isers, then at #east in c#ose co##a"oration with them, and on the "asis of the inte##i ence and #o istic s*pport which the US was a"#e to offer( The US a-e assistance to the contra force in the form of #o istic s*pport, the s*pp#) of information on the #ocation and mo-ements of the Sandinista troops, the *se of sophisticated methods of comm*nication, etc( Howe-er, the e-idence does not warrant a findin that the US a-e direct com"at s*pport( ISSUE, /A& the dec#aration is sti## "indin on the US( HELD, The ICG has 3*risdiction( The 56=B dec#aration is sti## "indin on the US( The US cannot dero ate from the time-#imit pro-iso inc#*ded in its 56=B dec#aration( The notion of reciprocit) is concerned with the scope and s*"stance of the commitments entered into, inc#*din reser-ations, and not with forma# conditions of their creation, d*ration, or e4tinction( Reciprocit) cannot "e in-o!ed in order to e4c*se depart*re from the terms of a State1s own dec#aration( &icara *a can in-o!e the si4 months1 notice a ainst the US, not on the "asis of reciprocit), "*t "eca*se it is an *nderta!in which is an inte ra# part of the instr*ment that contains it( The 56F= notification cannot o-erride the o"#i ation of the US to s*"mit to the 3*risdiction of the Co*rt -is-H--is &icara *a( ISSUE, /hether the contras can "e considered as or ans of the US Go-ernment, or as actin on its "eha#f( HELD, &o, the contras are not a ents of the US o-ernment( The e-idence is ins*fficient to demonstrate the tota# dependence of the contras on US aid( A partia# dependenc) ma) "e inferred from the fact that the #eaders were se#ected ") the US, and from other factors s*ch as the or ani9ation, trainin and e?*ippin of the force, p#annin of operations, the choosin of tar ets, and the operationa# s*pport pro-ided( There is, howe-er, no c#ear e-idence that the US act*a##) e4ercised s*ch a de ree of contro# as to 3*stif) treatin the contras as actin on its "eha#f( Therefore, the contras, remain responsi"#e for their own acts, in partic*#ar for a##e ed -io#ations ") them of h*manitarian #aw( For the US to "e #e a##) responsi"#e, it wo*#d ha-e to "e pro-ed that the State had effecti-e contro# of the operations in the co*rse of which the a##e ed -io#ations were committed( -) CORFU CHANNEL #UK V ALBANIA) . F)/nan0)1
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas Facts:
$cto"er 56==, the British &a-) -erified that no mines e4isted thro* h the &orth Corf* Channe# in the territor) of A#"ania( The channe# was a ain chec!ed +one in Gan*ar) and the other in Fe"r*ar) 56=D, and had ne ati-e res*#ts( $cto"er II, 56=B a s?*adron of British warships +the Ma*riti*s, :eander, Sa*mare9, and >o#a e, #eft the port of Corf* and proceeded thro* h the channe#( /hi#e in A#a"anian territoria# waters, two of the warships +Sa*mare9 and >o#a e, str*c! f#oatin mines and s*stained serio*s dama e( == British officers and crew mem"ers died, whi#e =I were in3*red( &o-em"er 56=B, British mine sweepers went thro* h the &orth Corf* Channe#, c*t II moored mines and too! them to Ma#ta for e4amination( B) a Specia# A reement, the British o-ernment instit*ted proceedin s a ainst A#"ania in the Internationa# Co*rt of G*stice +ICG,, demandin compensation for dama e to its ships and for the #oss of #i-es( A#"ania1s contention is that there was no proof that s*ch mines that dama ed the ships were their own( It a#so asserted that coasta# States ha-e a ri ht to re *#ate the passa e of forei n ships thro* h its territoria# waters, and that prior a*thori9ation to pass sho*#d "e ac?*ired( Since Britain did not o"tain prior a*thori9ation, its passa e was not innocent( For this "reach of internationa# #aw, A#"ania demands compensation from Britain(
Iss*e: Sho*#d A#"ania "e he#d responsi"#e for the mines that str*c! the British warshipsJ He#d: .es, A#"ania is responsi"#e *nder internationa# #aw for the dama e and #oss of #i-es, and that it owned a d*t) to pa) compensation to Great Britain( Before and after the incident, the A#"anian Go-ernment1s attit*de showed its intention to !eep a 3ea#o*s watch on its territoria# waters( And when the A#"ania came to !now of the minefie#d, it protested stron #) a ainst the minesweepin cond*cted ") Britain "*t not to the #a)in of mines( It is "*t showin that A#"ania desired the presence of s*ch mines( Moreo-er, the #a)o*t of the minefie#d shows that this co*#d on#) "e accomp#ished ") stationin a #oo!-o*t post near the coasts +that is in A#"ania,( The ine-ita"#e conc#*sion is that the #a)in of the minefie#d co*#d not ha-e "een done witho*t the !now#ed e of A#"ania( It is then its d*t) to notif) and warn ships proceedin thro* h the Strait( Its fai#*re to *nderta!e s*ch constit*tes ne #ect of its internationa# responsi"i#it)( As to the ar *ment on passa e thro* h territoria# waters, the ICG r*#ed that the &orth Corf* Channe# constit*ted a frontier "etween A#"ania and Greece, that a part of it is who##) within the territoria# waters of these I States, and that the Strait is of specia# importance to Greece( Hence, the Channe# "e#on s to a c#ass of internationa# hi hwa)s thro* h which passa e cannot "e prohi"ited ") a coasta# State in time of peace( Moreo-er, the passa e of the British warships thro* h the Channe# was carried o*t in s*ch manner that is consistent with the princip#e of innocent passa eKthe *ns were in a norma# position and not tar eted to the shores( 2) TEMPLE OF PREAH VIHEAR #CAMBODIA V. THAILAND) . Gana Facts: The case arose from an App#ication fi#ed ") the Go-ernment of Cam"odia re ardin territoria# so-erei nt) o-er the Temp#e of %reah >ihear( - Thai#and made two pre#iminar) o"3ections( $ne was re ardin the 3*risdiction of the %ermanent Co*rt of Internationa# G*stice +%CIG, whi#e the other was re ardin the territor) itse#f( First $"3ection: - Cam"odia ar *es that the %CIG has 3*risdiction o-er "oth co*ntries "ased on a dec#aration made ") the Thai o-1t( on Ma) I7, 56D7 cate orica##) admittin the 3*risdiction of the %CIG( - Thai#and, on the other hand, ar *es that "ased on a 56D6 decision of the %CIG, dec#arations of acceptance made after the %CIG ceased to e4ist +on Apri# 56, 56=B, were not "indin ( This was "eca*se Art( LB par( D of the Stat*te of the Co*rt sa)s that acceptances made are on#) "indin as s*ch for the period which the %CIG sti## has to r*n( And since Thai#and "ecame a part) to said stat*te on 2ec( 5B, 56=B, then s*ch
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas acceptance was not an)more "indin ( Iss*e: He#d: /An the 56D7 dec#aration of Thai#and was an acceptance of the 3*risdiction of the %CIG(
The Co*rt said )es( The Co*rt he#d that the 56D6 decision is on#) app#ica"#e to the parties thereto +which were Israe# and B*# aria,( F*rthermore, the Co*rt he#d that Thai#and1s 56D7 dec#aration made its sit*ation different from that of B*# aria( Thai#and1s "ein a part) to the stat*te e4pired on Ma) B, 56D7( Th*s, it1s dec#aration on Ma) I7, 56D7 was a new dec#aration made o*tside the operation of the Stat*te of the Co*rt and conse?*ent#) o*tside the app#ication of Art( LB( Second $"3ection: - Cam"odia "ases its c#aim on the Temp#e of %reah on a map +Anne4 5, made ") a ro*p of peop#e( $n the other hand, Thai#and "ases its c#aim on a treat) si ned ") France +who was then cond*ctin the forei n re#ations of Indo-China, and Siam( - Thai#and ar *es that Anne4 5 was ne-er accepted ") the parties to the treat)( A#so, Thai#and reiterates that the treat) sa)s that the "o*ndar) "etween Thai#and and Cam"odia is "ased on the watershed and the "o*ndar) de#ineated ") Anne4 5 does not conform to this a reement( Iss*e: - /Ac to fo##ow, Anne4 5 or the treat)J He#d: - The Co*rt he#d that Anne4 5 sho*#d "e fo##owed( '-en if it was not accepted ") France, there was an imp#ied acceptance of s*ch map( This can "e seen thro* h the acts of France and Thai#and( In 56L=-56LD a s*r-e) had esta"#ished a di-er ence "etween the map #ine and the tr*e #ine of the watershed, and other maps had "een prod*ced showin the Temp#e as "ein in Thai#and: Thai#and had ne-erthe#ess contin*ed a#so to *se and indeed to p*"#ish maps showin %reah >ihear as #)in in Cam"odia( Moreo-er, in the co*rse of the ne otiations for the 56ID and 56L8 Franco-Siamese Treaties, which confirmed the e4istin frontiers, and in 56=8 in /ashin ton "efore the Franco-Siamese Conci#iation Commission, it wo*#d ha-e "een nat*ra# for Thai#and to raise the matter: she did not do so( - In effect, Cam"odia and Thai#and are now estopped from ?*estionin the -a#idit) of Anne4 5( Th*s, the Temp#e of %reah >ihear "e#on s to Cam"odia( 3) GABC4KOVO-NAG5MAROS #HUNGAR5 VS. SLOVAKIA) #166&) . L"7)1 Facts: The case started from a treat) entered into ") H*n ar) and C9echos#o-a!ia concernin the constr*ction and operation of the Ga"cM!o-o-&a )maros S)stem of :oc!s( The said pro3ect was for the constr*ction of infrastr*ct*re on and aro*nd the 2an*"e Ri-er, which ran in "etween "oth co*ntries, for the more prod*cti-e *se of the waters of the said ri-er( The treat) assi ned the constr*ction of that part of the pro3ect in &a )maros to H*n ar) whi#e that part in Ga"ci!o-o to C9echos#o-a!ia( Both parties had their own responsi"i#ities( 'ach co*ntr) was responsi"#e for certain parts of the pro3ect( /or!s on the pro3ect started in 568F( Howe-er, H*n ar) enco*ntered intense criticism from its citi9ens so it decided to postpone wor!s on the pro3ect startin Ma) 5L, 56F6( '-ent*a##), H*n ar) a"andoned the pro3ect on I8 $cto"er 56F6( 2*rin the s*spension, C9echos#o-a!ia and H*n ar) entered into ne otiations to come *p with an a#ternati-e to the a"andoned pro3ect( $ne a#ternati-e is >ariant C( $n IL G*#) 5665, the S#o-a! Go-ernment decided to "e in, in Septem"er 5665, constr*ction to p*t the Ga"cM!o-o %ro3ect into operation *sin >ariant C( $n 56 Ma) 566I, the H*n arian Go-ernment transmitted to the C9echos#o-a! Go-ernment a &ote >er"a#e terminatin the 5688 Treat) with effect from ID Ma) 566I( &e otiations contin*ed "*t to no a-ai#( Unti#, the fi#in of the instant case(
Iss*e: +a, /hether the Rep*"#ic of H*n ar) was entit#ed to s*spend and s*"se?*ent#) a"andon, in 56F6, the wor!s on the &a )maros %ro3ect and on the part of the Ga"cM!o-o %ro3ect for which the Treat) attri"*ted responsi"i#it) to the Rep*"#ic of H*n ar)(
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas
+", /hether the C9ech and S#o-a! Federa# Rep*"#ic was entit#ed to proceed, in &o-em"er 5665, to the ;pro-isiona# so#*tion; and to p*t into operation from $cto"er 566I this s)stem, descri"ed in the Report of the /or!in Gro*p of Independent '4perts of the Commission of the '*ropean Comm*nities, the Rep*"#ic of H*n ar) and the C9ech and S#o-a! Federa# Rep*"#ic dated IL &o-em"er 566I +dammin *p of the 2an*"e at ri-er !i#ometer 5FD5(8 on C9echos#o-a! territor) and res*#tin conse?*ences on water and na-i ation co*rse,( +c, /hat are the #e a# effects of the notification, on 56 Ma) 566I, of the termination of the Treat) ") the Rep*"#ic of H*n ar)J He#d: +a, The Co*rt sa)s &o( H*n ar) rests the -a#idit) of its action *pon the princip#e of a state of necessit)( The state sa)s that the) had to a"andon the treat) "eca*se of economic and eco#o ica# concerns( The Co*rt en*merated the re?*irements for the app#ication of s*ch a princip#e, to wit: a( it m*st ha-e "een occasioned ") an ;essentia# interest; of the State which is the a*thor of the act conf#ictin with one of its internationa# o"#i ations "( that interest m*st ha-e "een threatened ") a ; ra-e and imminent peri#; c( the act "ein cha##en ed m*st ha-e "een the ;on#) means; of safe *ardin that interest d( that act m*st not ha-e ;serio*s#) impairNedO an essentia# interest; of the State towards which the o"#i ation e4isted e( the State which is the a*thor of that act m*st not ha-e ;contri"*ted to the occ*rrence of the state of necessit); In this case, the Co*rt he#d that there was an essentia# interest, which is the en-ironment( B*t, the co*rt he#d that the peri# to "e ca*sed is not imminent( The f*t*re pro"#ems "ein pointed o*t ") H*n ar) were not impendin eno* h to 3*stif) their a"andonment of the treat) +ie, pro"#em re ardin drin!in water was a #on -term pro"#em,( The Co*rt a#so pointed o*t that there were other means ") which H*n ar) co*#d ha-e a-oided the a##e ed peri#s attached to the contin*ation of the Ga"cM!o-o-&a )maros S)stem of :oc!s +ie, #essenin of the ri-er "ed co*#d ha-e "een so#-ed ") constant refi##in of the "ed with ra-e#,( The Co*rt a#so pointed o*t that H*n ar) he#ped in "rin in a"o*t the state of necessit) ") r*shin the pro3ects witho*t f*##) *nderstandin the effects it wo*#d ha-e in the en-ironment( +", The Co*rt sa)s no( C9echos#o-a!ia rests its c#aim on what it ca##s the ;princip#e of appro4imate app#ication; to 3*stif) the constr*ction and operation of >ariant C( The princip#e states that whene-er a #e a# instr*ment of contin*in -a#idit) cannot "e app#ied #itera##) owin to the cond*ct of one of the parties, it m*st, witho*t a##owin that part) to ta!e ad-anta e of its own cond*ct, "e app#ied in a wa) appro4imatin most c#ose#) to its primar) o"3ect( The Co*rt too! note that the "asic characteristic of the treat) is to pro-ide for the constr*ction of the Ga"cM!o-o-&a )maros S)stem of :oc!s as a 3oint in-estment constit*tin a sin #e and indi-isi"#e operationa# s)stem of wor!s( C#ear#), thro* h >ariant C, C9echos#o-a!ia -io#ated s*ch main o"3ecti-e of the treat)( Thro* h >ariant C, the C9echs wanted to create their own s)stem of wor!s on the Ga"ci!o-o side of the 2an*"e( This is o"-io*s#) an internationa##) wron act for it -io#ated the treat) a reed *pon "etween the parties( The Co*rt considers that C9echos#o-a!ia, ") *ni#atera##) ass*min contro# of a shared reso*rce, and there") depri-in H*n ar) of its ri ht to an e?*ita"#e and reasona"#e share of the nat*ra# reso*rces of the 2an*"e K with the contin*in effects of the di-ersion of these waters on the eco#o ) of the riparian area of the S9i et!P9 K fai#ed to respect the proportiona#it) which is re?*ired ") internationa# #aw( +c, The 56 Ma) 566I dec#aration of H*n ar) did not ha-e an) #e a# effect( It did not terminate the treat) "etween the two states( /hen H*n ar) made s*ch a dec#aration, it did not ha-e an) "asis to terminate the treat)( It was act*a##) the one which -io#ated the treat) ") a"andonin their o"#i ations( There was no fa*#t committed ") the C9echs to 3*stif) what H*n ar) did( In the Co*rt@s -iew, therefore, the notification of termination ") H*n ar) on 56 Ma) 566I was premat*re( &o "reach of the Treat) ") C9echos#o-a!ia had )et ta!en p#ace and conse?*ent#) H*n ar) was not entit#ed to in-o!e an) s*ch "reach of the Treat) as a ro*nd for terminatin it when it did( +d, The Co*rt finds that H*n ar) and S#o-a!ia m*st ne otiate in ood faith in the #i ht of the pre-ai#in sit*ation, and m*st ta!e a## necessar) meas*res to ens*re the achie-ement of the o"3ecti-es of the Treat)( Un#ess the %arties otherwise a ree, a 3oint operationa# rQ ime m*st "e esta"#ished in accordance with the Treat)( A#so, *n#ess the %arties otherwise a ree, H*n ar) sha## compensate S#o-a!ia for the dama e
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas s*stained ") C9echos#o-a!ia and ") S#o-a!ia on acco*nt of the s*spension and a"andonment ") H*n ar) of wor!s for which it was responsi"#e< and S#o-a!ia sha## compensate H*n ar) for the dama e it has s*stained on acco*nt of the p*ttin into operation of the ;pro-isiona# so#*tion; ") C9echos#o-a!ia and its maintenance in ser-ice ") S#o-a!ia( 8, ADVISOR5 OPINION ON THE LEGAL CONSE8UENCES OF THE PALESTINIAN 9ALL . M)n0!"'a Facts: +Facts are rea##) short(, Israe# constr*cted a wa## in the $cc*pied %a#estinian Territor) inc#*din in and aro*nd east Ger*sa#em( The ?*estion on which the ad-isor) opinion of the Co*rt has "een re?*ested is set forth in reso#*tion 'S-57A5= adopted ") the Genera# Assem"#) of the United &ations on F 2ecem"er I77L at its Tenth 'mer enc) Specia# Session( Iss*e: /A& the co*rt has 3*risdiction to iss*e an ad-isor) position( He#d: T:) C"+/t :as ;+/!s0! t!"n. The Co*rt has a#read) indicated that the s*"3ect of the present re?*est for an ad-isor) opinion fa##s within the competence of the Genera# Assem"#) *nder the Charter( '-en if Artic#e 5I, para raph 5, of the Charter pro-ides that: While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation ith regard to that dispute or situation unless the Security Council so re!uests"# a re?*est for an ad-isor) opinion is not in itse#f a CrecommendationE ") the Genera# Assem"#) Cwith re ard to NaO disp*te or sit*ationE( As re ards the practice of the United &ations, "oth the Genera# Assem"#) and the Sec*rit) Co*nci# initia##) interpreted and app#ied Artic#e 5I to the effect that the Assem"#) co*#d not ma!e a recommendation on a ?*estion concernin the maintenance of internationa# peace and sec*rit) whi#e the matter remained on the Sec*rit) Co*nci#1s a enda( Howe-er, this interpretation of Artic#e 5I has e-o#-ed s*"se?*ent#)( Th*s the Genera# Assem"#) deemed itse#f entit#ed in 56B5 to adopt recommendations in the matter of the Con o +reso#*tions 56DD +R>, and 5B77 +R>I,, and in 56BL in respect of the %ort* *ese co#onies +reso#*tion 565L +R>III,, whi#e those cases sti## appeared on the Co*nci#1s a enda, witho*t the Co*nci# ha-in adopted an) recent reso#*tion concernin them(
Iss*e: /A& the Co*rt cannot e4ercise 3*risdiction to iss*e an opinion "eca*se of contentio*s matters "etween Israe# and %a#estine( He#d: T:) C"+/t an )<)/ !s) !ts =+/!s0! t!"n. $ne of the ar *ments is to the effect that the Co*rt sho*#d not e4ercise its 3*risdiction in the present case "eca*se the re?*est concerns a contentio*s matter "etween Israe# and %a#estine, in respect of which Israe# has not consented to the e4ercise of that 3*risdiction( Accordin to this -iew, the s*"3ect-matter of the ?*estion posed ") the Genera# Assem"#) Cis an inte ra# part of the wider Israe#i-%a#estinian disp*te concernin ?*estions of terrorism, sec*rit), "orders, sett#ements, Ger*sa#em and other re#ated mattersE( Israe# has emphasi9ed that it has ne-er consented to the sett#ement of this wider disp*te ") the Co*rt or ") an) other means of comp*#sor) ad3*dication< on the contrar), it contends that the parties repeated#) a reed that these iss*es are to "e sett#ed ") ne otiation, with the possi"i#it) of an a reement that reco*rse co*#d "e had to ar"itration( The Co*rt o"ser-es that the #ac! of consent to the Co*rt1s contentio*s 3*risdiction ") interested States has no "earin on the Co*rt1s 3*risdiction to i-e an ad-isor) opinion( In an Ad-isor) $pinion of 56D7, the Co*rt e4p#ained that: CThe consent of States, parties to a disp*te, is the "asis of the Co*rt1s 3*risdiction in
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas contentio*s cases( The sit*ation is different in re ard to ad-isor) proceedin s( The Co*rt1s rep#) is on#) of an ad-isor) character: as s*ch, it has no "indin force( It fo##ows that no State, whether a Mem"er of the United &ations or not, can pre-ent the i-in of an Ad-isor) $pinion which the United &ations considers to "e desira"#e in order to o"tain en#i htenment as to the co*rse of action it sho*#d ta!e( Iss*e: /A& "*i#din of the wa## -io#ates the ri ht of the %a#estinian peop#e to se#f-determination( He#d: T:) >+!'0!n? "@ t:) Aa'' B!"'at)s t:) s)'@-0)t)/C!nat!"n 0" t/!n). As re ards the princip#e of the ri ht of peop#es to se#f-determination, the Co*rt o"ser-es that the e4istence of a C%a#estinian peop#eE is no #on er in iss*e( S*ch e4istence has moreo-er "een reco ni9ed ") Israe# in the e4chan e of #etters of 6 Septem"er 566L "etween Mr( .asser Arafat, %resident of the %a#estine :i"eration $r ani9ation +%:$, and Mr( .it9ha! Ra"in, Israe#i %rime Minister( In that correspondence, the %resident of the %:$ reco ni9ed Cthe ri ht of the State of Israe# to e4ist in peace and sec*rit)E and made -ario*s other commitments( In rep#), the Israe#i %rime Minister informed him that, in the #i ht of those commitments, Cthe Go-ernment of Israe# has decided to reco ni9e the %:$ as the representati-e of the %a#estinian peop#eE( F, ADVISOR5 OPINION ON THE USE OF NUCLEAR 9EAPONS . M"/a0a Facts: -The /or#d Hea#th $r ani9ation+/H$,, sent to the Re istrar of the Internationa# Co*rt of G*stice+ICG, a decision of the /or#d Hea#th Assem"#) +/HA, to s*"mit a ?*estion to the Co*rt for an ad-isor) opinion( -The re?*est for ad-isor) opinion states, in s*mmar), that: -In -iew of the report of the 2irector-Genera# and the reso#*tions of the /HA on the hea#th and en-ironmenta# effects of n*c#ear weapons< and -Reca##in that primar) pre-ention is the on#) appropriate means to dea# with the hea#th and en-ironmenta# effects of the *se of n*c#ear weapons< -The /HA decides to re?*est the Internationa# Co*rt of G*stice to i-e an ad-isor) opinion on the fo##owin ?*estion: In -iew of the hea#th and en-ironmenta# effects, wo*#d the *se of n*c#ear weapons ") a State in war or other armed conf#ict "e a "reach of its o"#i ation *nder internationa# #aw inc#*din the /H$ Constit*tionJ -/hi#e the ICG has the power to i-e ad-isor) opinions, three conditions m*st "e satisfied in order to fo*nd the 3*risdiction of the Co*rt when a re?*est for an ad-isor) opinion is s*"mitted to it ") a specia#i9ed a enc): 5( the a enc) re?*estin the opinion m*st "e d*#) a*thori9ed, *nder the Charter, to re?*est opinions from the Co*rt< I( The opinion re?*ested m*st "e on a #e a# ?*estion< L( This ?*estion m*st "e one arisin within the scope of the acti-ities of the re?*estin a enc)( Iss*e: /A& the Co*rt has the 3*risdiction to i-e the ad-isor) opinion re?*ested ") /H$( He#d: &$, "eca*se the third re?*isite was not met -There is no ?*estion of comp#iance with re ard to the first two re?*isites since, as re ards the first one, /H$1s Constit*tion and the A reement "etween /H$1s a reement with the United &ations states that the Genera# Assem"#) of the United &ations a*thori9es the /H$ to re?*est ad-isor) opinions of the ICG on #e a# ?*estions arisin within the scope of its competence( -As to the second re?*isite, the iss*e posed is indeed a #e a# ?*estion, since its reso#*tion wo*#d re?*ire the ICG to interpret the r*#es of #aw in-o!ed re ardin the o"#i ations of the States, and assess whether the "eha-io*r in ?*estion conforms to those o"#i ations( The po#itica# nat*re of the moti-es which ma) ha-e inspired the re?*est and the po#itica# imp#ications that the opinion i-en mi ht ha-e are irre#e-ant in the esta"#ishment of 3*risdiction( -/ith re ard to the third re?*isite, the R*#es and the Constit*tion of the or ani9ation m*st "e referred to in order to determine its fie#d of acti-it) or area of competence(
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas -The ICG finds that the acti-ities of /H$ re#ate on#) to the Seffects of the *se of n*c#ear weapons on hea#th,1 "*t not to the Slegality of the *se of s*ch weapons in -iew of their hea#th and en-ironmenta# effects(1 -&one of the f*nction of /H$ has a s*fficient connection with the ?*estion of #e a#it) of the *se of n*c#ear weapons( /hether n*c#ear weapons are *sed #e a##) or i##e a##), their effects on hea#th wo*#d "e the same( -It m*st "e noted that /H$ is a Cspecia#i9ed a enc)E *nder the U& ( Bein a specia#i9ed a enc), it is empowered on#) to ta!e s*ch action for the accomp#ishment of its specific o"3ecti-es, which necessari#) dea# with p*"#ic hea#th( It cannot encroach on the responsi"i#ities of other parts of the United &ations S)stem( -There is no do*"t that ?*estions concernin the *se of force, the re *#ation or armaments and disarmament are within the competence of the United &ations and #ie o*tside that of the specia#i9ed a encies( -The re?*est for an ad-isor) opinion s*"mitted ") the /H$ does not re#ated to a ?*estion which arises Cwithin the scope of the acti-itiesE of /H$( Side iss*es: Iss*e: /A& the reso#*tion of /HA re?*estin for an ad-isor) opinion, ha-in "een adopted ") the re?*isite ma3orit), m*st "e pres*med to ha-e "een -a#id#) adopted( He#d: The mere fact that a ma3orit) of States, in -otin a reso#*tion, ha-e comp#ied with the r*#es of form, cannot s*ffice to remed) the f*ndamenta# defect of s*ch reso#*tion, it "ein ultra $ires( Iss*e: /A& the opinion of the Genera# Assem"#) of U& we#comin the reso#*tion of /H$ to re?*est an ad-isor) opinion rants /H$ the competence to do so( He#d: &$( The Genera# Assem"#) on#) meant to #end its po#itica# s*pport to the action ta!en ") /H$, not to pass *pon /H$1s competence to re?*est an opinion on the ?*estion raised 6, NOTTEBOHM #LIECHTENSTEIN VS. GUATEMALA) . R!Bas FACTS: - &otte"ohm was "orn at Ham"*r and was a German nationa#( - In $cto"er 6, 56L6, a #itt#e more than a month after the openin of the Second /or#d /ar, mar!ed ") German)@s attac! on %o#and, that he app#ied for nat*ra#i9ation in :iechtenstein "*t he contin*ed to ha-e his fi4ed a"ode in G*atema#a where he res*med his *s*a# "*siness acti-ities( - The necessar) conditions for the nat*ra#i9ation of forei ners in :iechtenstein are #aid down ") the :iechtenstein :aw of =th Gan*ar), 56L=( o that the app#icant for nat*ra#i9ation m*st pro-e that acceptance into the Home Corporation %&eimat $erband' of a :iechtenstein comm*ne has "een promised to him in case of ac?*isition of the nationa#it) of the State< o that, s*"3ect to wai-er of this re?*irement *nder stated conditions, he m*st pro-e that he wi## #ose his former nationa#it) as the res*#t of nat*ra#i9ation< o that he has "een resident in the %rincipa#it) for at #east three )ears, a#tho* h this re?*irement can "e dispensed with in circ*mstances deser-in specia# consideration and ") wa) of e4ception< o that he has conc#*ded an a reement concernin #ia"i#it) to ta4ation with the competent a*thorities and has paid a nat*ra#i9ation fee( - The :aw re-ea#s concern that nat*ra#i9ation sho*#d on#) "e ranted with f*## !now#ed e of a## the pertinent facts and adds that the rant of nationa#it) is "arred where circ*mstances are s*ch as to ca*se apprehension that pre3*dice ma) en*re to the State of :iechtenstein( - A 2oc*ment dated 5Dth $cto"er, 56L6 certifies that on that date the citi9enship of Ma*ren had "een conferred *pon him( - $n I7th $cto"er &otte"ohm too! the oath of a##e iance and on ILrd $cto"er an arran ement concernin #ia"i#it) to ta4ation was conc#*ded( A Certificate of &ationa#it) was a#so prod*ced to the effect that &otte"ohm had "een nat*ra#i9ed ") a S*preme Reso#*tion of the %rince of 5Lth $cto"er, 56L6( - &otte"ohm then o"tained a :iechtenstein passport and had it -isa-ed ") the Cons*# Genera# of G*atema#a in T*rich on 5st 2ecem"er, 56L6, and ret*rned to G*atema#a at the "e innin of 56=7, where he res*med his former "*siness acti-ities( - :iechtenstein had fi#ed an App#ication instit*tin proceedin s a ainst G*atema#a, c#aimin : o dama es in respect of -ario*s meas*res which G*atema#a had ta!en a ainst the person and
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas propert) of M( &otte"ohm, in a##e ed contra-ention of internationa# #aw( that the Go-ernment of G*atema#a had acted towards Mr( Friedrich &otte"ohm, a citi9en of :iechtenstein, in a manner contrar) to internationa# #aw( G*atema#a contended that the Co*rt was witho*t 3*risdiction, the principa# ro*nd for its o"3ection "ein that the -a#idit) of its dec#aration of acceptance of the comp*#sor) 3*risdiction of the Co*rt e4pired a few wee!s after the fi#in of the App#ication ") :iechtenstein o
ISSU': - /A& the *ni#atera# act ") :iechtenstein in ma!in M( &otte"ohm its citi9en was one which co*#d "e re#ied *pon a ainst G*atema#a in re ard to the e4ercise of protection( H':2: - &$U &otte"ohm is sti## considered a citi9en of G*atema#a( - /hen two States ha-e conferred their nationa#it) *pon the same indi-id*a# and this sit*ation is no #on er confined within the #imits of the domestic 3*risdiction of one of these States "*t e4tends to the internationa# fie#d, internationa# ar"itrators or the Co*rts of third States which are ca##ed *pon to dea# with this sit*ation wo*#d a##ow the contradiction to s*"sist if the) confined themse#-es to the -iew that nationa#it) is e4c#*si-e#) within the domestic 3*risdiction of the State( - In order to reso#-e the conf#ict the) ha-e, on the contrar), so* ht to ascertain whether nationa#it) has "een conferred in circ*mstances s*ch as to i-e rise to an o"#i ation on the part of the respondent State to reco ni9e the effect of that nationa#it)( - In determinin his nationa#it), different factors are ta!en into consideration, and their importance wi## -ar) from one case to the ne4t: o ha"it*a# residence of the indi-id*a# concerned o the centre of his interests, his fami#) ties, his participation in p*"#ic #ife, o attachment shown ") him for a i-en co*ntr) and inc*#cated in his chi#dren, etc( - Accordin to the practice of States, nationa#it) constit*tes the 3*ridica# e4pression of the fact that an indi-id*a# is more c#ose#) connected with the pop*#ation of a partic*#ar State( - At the time of his nat*ra#i9ation, does &otte"ohm appear to ha-e "een more c#ose#) attached ") his tradition, his esta"#ishment, his interests, his acti-ities, his fami#) ties, his intentions for the near f*t*re, to :iechtenstein than to an) other StateJ - &otte"ohm a#wa)s retained his fami#) and "*siness connections with German) and that there is nothin to indicate that his app#ication for nat*ra#i9ation in :iechtenstein was moti-ated ") an) desire to dissociate himse#f from the Go-ernment of his co*ntr)( - A#so, &otte"ohm had "een sett#ed for L= )ears in G*atema#a, which was the centre of his interests and his "*siness acti-ities( He sta)ed there *nti# his remo-a# as a res*#t of war meas*res in 56=L +remem"er that he "ecame a citi9en of :iechtenstein in 5686,, and comp#ains of G*atema#a@s ref*sa# to readmit him( Mem"ers of &otte"ohm@s fami#) had, moreo-er, asserted his desire to spend his o#d a e in G*atema#a( - There is th*s the a"sence of an) "ond of attachment with :iechtenstein, "*t there is a #on -standin and c#ose connection "etween him and G*atema#a, a #in! which his nat*ra#i9ation in no wa) wea!ened( 1D) OPOSA VS. FACTORAN . Sa/)nas Facts: The petitioners in this case are a## minors represented ") their parents( Factoran was the then secretar) of the 2'&R( The comp#aint was instit*ted as a ta4pa)ers1 c#ass s*it( The minors are sa)in that the) represent their eneration as we## as eneration )et *n"orn( The pra)er is that the secretar) of 2'&R to cance# a## e4istin tim"er #icense a reements and ref*se to accept new ones( Factoran fi#ed a motion to dismiss sa)in that petitioners do not ha-e a ca*se of action and what is in-o#-ed is a po#itica# ?*estion that is for the #e is#ati-e department to reso#-e( The RTC 3*d e appro-ed the motion( %#aintiffs th*s fi#ed the motion for certiorari(
Iss*e: He#d: Iss*e: He#d: Iss*e: He#d: Iss*e: He#d:
/A& petitioners ha-e a ca*se of action
%etitioners indeed ha-e #oc*s standi to fi#e the case( The) can fi#e the case for themse#-es as we## as for the s*cceedin enerations( /A& the petitioners fai#ed to assert a #e a# ri ht
%etitioners ha-e s*ccessf*##) showed that the) ha-e a specific #e a# ri ht( The ri ht to a "a#anced and hea#thf*# eco#o ) +Sec 5B, Art II of the 56F8 Constit*tion, The ri ht to a "a#anced and hea#thf*# eco#o ) carries with it the corre#ati-e d*t) to refrain from impairin the en-ironment( It is the 2'&R1s d*t) to protect s*ch ri ht( A denia# or -io#ation of that ri ht ") the other who has the corre#ati-e d*t) to respect or protect the same i-es ri ht to a ca*se of action( /A& the case in-o#-es a po#itica# ?*estion
&o( /hat is principa##) in-o#-ed is the enforcement of a ri ht -is-H--is po#icies a#read) form*#ated and e4pressed in #e is#ation( /A& the case sho*#d "e dismissed d*e to non-impairment of contracts +referrin to the tim"er #icenses,
The non-impairment c#a*se m*st )ie#d to the po#ice power of the state( A## #icenses ma) "e re-o!ed or rescinded ") e4ec*ti-e action(
2ecision: $rder of dismissa# set aside +I *ess remanded )*n case, 11) EAST TIMOR . Anasta !"
5( The main r*#in of the Co*rt +the ma3orit) opinion, is that it cannot e4ercise 3*risdiction o-er the case notwithstandin the fact that it has "een conferred 3*risdiction thro* h the dec#arations made ") the parties +i(e(, %ort* a# and A*stra#ia, *nder Artic#e LB, para raph I, of its Stat*te( Reasons for the r*#in : a, the Co*rt cannot e4ercise 3*risdiction o-er the case "eca*se Indonesia is not a part) thereto( The co*rt he#d that in order to r*#e on the proceedin s instit*ted ") %ort* a# a ainst A*stra#ia concernin ;certain acti-ities of A*stra#ia with respect to 'ast Timor;, it wo*#d "e necessar) for the co*rt to determine the ri hts and o"#i ations of Indonesia( Specifica##), the co*rt he#d that the -er) s*"3ect-matter of its decision wo*#d necessari#) "e a determination whether, ha-in re ard to the circ*mstances in which Indonesia entered and remained in 'ast Timor, it co*#d or co*#d not ha-e ac?*ired the power to enter into treaties on "eha#f of 'ast Timor re#atin to the reso*rces of its continenta# she#f( The Co*rt co*#d not ma!e s*ch a determination in the a"sence of the consent of Indonesia<
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas ", re ardin the contention that %ort* a# and A*stra#ia ha-e accepted the comp*#sor) 3*risdiction of the Co*rt *nder Artic#e LB, para raph I, of its Stat*te, the co*rt noted that Indonesia did not do so( This, in effect, prec#*des the co*rt from e4ercisin 3*risdiction since were it to r*#e on the case, its decision wo*#d affect, "*t wo*#d not "e "indin on, Indonesia "eca*se of its #ac! of consent to the co*rt1s 3*risdiction< c, whi#e it is tr*e that the ri ht of peop#es to se#f-determination, as it e-o#-ed from the Charter and from United &ations practice, has an erga omnes character, the Co*rt nonethe#ess considers that the erga omnes character of a norm and the r*#e of consent to 3*risdiction are two different thin s( /hate-er the nat*re of the o"#i ations in-o!ed, the Co*rt co*#d not r*#e on the #awf*#ness of the cond*ct of a State when its 3*d ment wo*#d imp#) an e-a#*ation of the #awf*#ness of the cond*ct of another State which is not a part) to the case< d, if the co*rt were to e4ercise 3*risdiction o-er the case and render 3*d ment thereon notwithstandin the #ac! of Indonesia1s consent, s*ch a 3*d ment wo*#d r*n direct#) co*nter to the ;we##-esta"#ished princip#e of internationa# #aw em"odied in the Co*rt@s Stat*te, name#), that the Co*rt can on#) e4ercise 3*risdiction o-er a State with its consent; +(onetary Gold )emo$ed from )ome in *+,-, ."C"/" )eports *+0,, p( LI,( Re the separate opinion of G*d e $da: G*d e $da, whi#e a reein that %ort* a#@s App#ication sho*#d "e dismissed as the Co*rt #ac!s 3*risdiction to entertain it, considers that its dismissa# sho*#d not ha-e "een "ased *pon the a"sence of Indonesia@s consent, as in the Co*rt@s G*d ment, "*t *pon the sole consideration that %ort* a# #ac!ed locus standi( His reasonin appears to "e "ased on his -iew that the centra# iss*e in the case is hether 1ortugal or .ndonesia , as a State #)in opposite to A*stra#ia, was entit#ed to the continenta# she#f in the ;Timor Gap;+ma)"e, this is what is referred to in the Treat) of 55 2ecem"er 56F6 "etween A*stra#ia and Indonesia as an area "etween the Indonesian %ro-ince of 'ast Timor and &orthern A*stra#ia,( ( He notes that on the matter of the de#imitation of the continenta# she#f in the re#e-ant areas, it appears that since the se-enties, Indonesia c#aimed the stat*s of a coasta# State for 'ast Timor and, as s*ch, ne otiated with A*stra#ia whi#e, on the other hand, %ort* a# did not( Had %ort* a# a#so c#aimed that stat*s, it co*#d and sho*#d ha-e initiated a disp*te o-er the correspondin tit#e to the continenta# she#f ith .ndonesia, "*t not with A*stra#ia( 2ot unless and until s*ch time as %ort* a# had "een esta"#ished as ha-in the stat*s of the coasta# State entit#ed to the correspondin continenta# she#f co*#d an) iss*e concernin the sea"ed area of the ;Timor Gap; ha-e "een the s*"3ect matter of a disp*te bet een 1ortugal and Australia Since %ort* a# does not ha-e s*ch stat*s as )et, it has no #oc*s standi and hence, its comp#aint sho*#d "e dismissed on s*ch ro*nd( Re the dissentin opinion of G*d e /eeramantr): G*d e /eeramantr) disa rees with the ma3orit) -iew on the ?*estion as to whether or not the Co*rt #ac!s 3*risdiction on the ro*nd that a decision a ainst A*stra#ia wo*#d in-o#-e a decision concernin the ri hts of Indonesia, a third State, not "efore the Co*rt( G*d e /eeramantr), after ana#)9in the (onetary Gold decision and the prior and s*"se?*ent 3*rispr*dence on the matter, conc#*des that, ha-in re ard to the facts of this case, the (onetary Gold decision is not re#e-ant inasm*ch as the Co*rt co*#d determine the matter "efore it entire#) on the "asis of the o"#i ations and actions of A*stra#ia a#one, witho*t an) need to ma!e an ad3*dication on the cond*ct of Indonesia( He "ases this on the -iew that a centra# princip#e of State responsi"i#it) in internationa# #aw is the indi-id*a# responsi"i#it) of a State for its actions, ?*ite apart from the comp#icit) of another State in those actions( Accordin #), he "e#ie-es that A*stra#ia1s actions, in ne otiatin , conc#*din and initiatin performance of the Timor Gap Treat), and ta!in interna# #e is#ati-e meas*res for its app#ication, are th*s 3*sticia"#e on the "asis of its *ni#atera# cond*ct( Re the dissentin opinion of G*d e S!*"is9ews!i: In his -iew, the co*rt has 3*risdiction "eca*se e-en it finds itse#f witho*t 3*risdiction to ad3*dicate on an)
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas iss*e re#atin to the Timor Gap Treat), it can sti## r*#e on %ort* a#1s first s*"mission, i(e(, with the stat*s of 'ast Timor, the app#ica"i#it) to that territor) of the princip#e of se#f-determination and some other "asic princip#es of internationa# #aw, and the position of %ort* a# as administerin %ower( This is so "eca*se the first s*"mission can "e separated from the other s*"missions which concern e4c#*si-e#) the specific iss*es of the treat)( G*d e S!*"is9ews!i "e#ie-es that the Co*rt can decide on the #awf*#ness of some *ni#atera# acts of A*stra#ia #eadin to the conc#*sion of the Treat)( A decision thereon does not imp#) an) ad3*dication on Indonesia, nor does it in-o#-e an) findin on the -a#idit) of the Treat)( The cond*ct of A*stra#ia can "e assessed in the #i ht of United &ations #aw and reso#*tions( S*ch assessment is not #in!ed to an) passin *pon Indonesia@s acti-ities( F*rther, it is his -iew that %ort* a# has the capacit) to act "efore the Co*rt in this case on "eha#f of 'ast Timor and to -indicate the respect for its position as administerin %ower( The position of %ort* a# as administerin %ower was ?*estioned ") A*stra#ia< the Co*rt sho*#d ha-e c#arified this iss*e( It is within its 3*risdiction( 1%) ISLAND OF PALMAS . B)/"n Facts: The Is#and of %a#mas sits a"o*t ha#fwa) "etween the is#ands of Mindanao in the %hi# and &an*sa of the &ether#ands Indies( It is, howe-er, within the "o*ndaries of the %hi# as defined ") Spain and th*s ceded to the United States +US, in 5F6F ") -irt*e of the Treat) of %aris( In 567B, American Genera# /ood -isited %a#mas and disco-ered that the &ether#ands a#so c#aimed so-erei nt) o-er the is#and( Iss*e: /hether the is#and of %a#mas in its entiret) forms a part of territor) "e#on in to the US or if &ether#ands territor)( He#d: It is within the &ether#ands territor)( Contention of US: It "ases its tit#e on disco-er) and ") -irt*e of which it ac?*ired so-erei nt) o-er the is#ands( It c#aims that this tit#e is f*rther confirmed ") the Treat) of Monster to which Spain and the &ether#ands are themse#-es contractin parties( US c#aims that it is *nnecessar) to esta"#ish facts showin the act*a# disp#a) of so-erei nt) o-er the Is#and of %a#mas, that is mere disco-er) is s*fficient to ac?*ire so-erei nt) o-er a territor)( US a#so "ased its c#aim on the princip#e of conti *it) +i"i sa"hin, !*n !anino "ansa mas ma#apit, !an)a )*n is#and(((, H*"er, the se#ected ar"itrator disa reed with this contention of the US( So-erei nt) o-er a territor) is the ri ht to e4ercise therein, to the e4c#*sion of an) other State, the f*nctions of a State( Contin*o*s and peacef*# disp#a) of territoria# so-erei nt) is as ood as a tit#e( It is reco ni9ed that the US comm*nicated the Treat) of %aris to the &ether#ands, and that no reser-ations or protests were made ") the &ether#ands in respect of the de#imitation of the %hi#ippines which inc#*ded the %a#mas( Howe-er the territoria# so-erei nt) +which as stated a"o-e ser-es as ood tit#e(((, which &ether#ands e4ercised o-er the %a#mas co*#d not "e affected ") the mere si#ence as re ards a treat) which has "een notified( 2isco-er) a#one witho*t s*"se?*ent act cannot at the present time s*ffice to pro-e so-erei nt) o-er the %a#mas( '-en considerin that the US possesses an imperfect tit#e o-er the %a#mas ") -irt*e of the Treat) of %aris, this tit#e cannot pre-ai# o-er the contin*o*s disp#a) of a*thorit) of another state( The princip#e of conti *it) as contention sho*#d a#so fai#( This princip#e itse#f is ") its -er) nat*re so *ncertain and contested that e-en o-ernments of the same state ha-e on different occasions maintained contradictor) opinions( If this princip#e a#one is to "e *sed as "asis for ac?*irin so-erei nt) o-er a territor), this princip#e wo*#d "e in conf#ict with what has "een said a"o*t territoria# so-erei nt)
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas 1&) VFA CASE #LIM VS. EXEC. SEC.) . Ca'!n!san Facts: Be innin Gan*ar) I77I, personne# from the armed forces of the United States of America started arri-in in Mindanao to ta!e part, in con3*nction with the %hi#ippine mi#itar), in ;Ba#i!atan 7I-5(; These so-ca##ed ;Ba#i!atan; e4ercises are the #ar est com"ined trainin operations in-o#-in Fi#ipino and American troops( In theor), the) are a sim*#ation of 3oint mi#itar) mane*-ers p*rs*ant to the M*t*a# 2efense Treat), a "i#atera# defense a reement entered into ") the %hi#ippines and the United States in 56D5( Fe"r*ar) 5, I77I, petitioners Arth*r 2( :im and %a*#ino %( 'rsando fi#ed this petition for certiorari and prohi"ition, attac!in the constit*tiona#it) of the 3oint e4ercise The #ac! of consens*s+a reement, was e-ent*a##) c*red when the two nations conc#*ded the >isitin Forces A reement +>FA, in 5666( Issue: /A& ;Ba#i!atan 7I-5; is co-ered ") the >isitin Forces A reement( /A& American troops ma) act*a##) en a e in com"at in %hi#ippine territor) Held: .es( After st*died ref#ection, it appeared farfetched that the am"i *it) s*rro*ndin the meanin of the word (@acti-ities; arose from accident( In o*r -iew, it was de#i"erate#) made that wa) to i-e "oth parties a certain #eewa) in ne otiation( In this manner, -isitin US forces ma) so3o*rn in %hi#ippine territor) for p*rposes other than mi#itar)( As concei-ed, the 3oint e4ercises ma) inc#*de trainin on new techni?*es of patro# and s*r-ei##ance to protect the nation@s marine reso*rces, sea search-and-resc*e operations to assist -esse#s in distress, disaster re#ief operations, ci-ic action pro3ects s*ch as the "*i#din of schoo# ho*ses, medica# and h*manitarian missions, and the #i!e( The Terms of Reference are e4p#icit eno* h( %ara raph F of section I stip*#ates that US e4ercise participants ma) not en a e in "C>at "except in self-defense"3 /e wr)#) note that this sentiment is admira"#e in the a"stract "*t diffic*#t in imp#ementation( The tar et of ;Ba#i!atan 7I-5 I; the A"* Sa))af, cannot reasona"#) "e e4pected to sit id#) whi#e the "att#e is "ro* ht to their -er) doorstep( The) cannot "e e4pected to pic! and choose their tar ets for the) wi## not ha-e the #*4*r) of doin so( /e state this point if on#) to si nif) o*r awareness that the parties stradd#e a fine #ine, o"ser-in the honored #e a# ma4im 32emo potest facere per alium !uod non potest facere per directum"3 55 The indirect -io#ation is act*a##) petitioners@ worr), that in rea#it), ;Ba#i!atan 7I-5 ; is act*a##) a war principa##) cond*cted ") the United States o-ernment, and that the pro-ision on se#f-defense ser-es on#) as camo*f#a e to concea# the tr*e nat*re of the e4ercise( A c#ear prono*ncement on this matter there") "ecomes cr*cia#(
Notes: The entr) of American troops into %hi#ippine soi# is pro4imate#) rooted in the internationa# anti-terrorism campai n dec#ared ") %resident Geor e /( B*sh in reaction to the tra ic e-ents that occ*rred on Septem"er 55, I775 M+t+a' D)@)ns) T/)atEKas the ;core; of the defense re#ationship "etween the %hi#ippines and its traditiona# a##), the United States( Its aim is to enhance the strate ic and techno#o ica# capa"i#ities of o*r armed forces thro* h 3oint trainin with its American co*nterparts< in re: >FA( V!s!t!n? F"/ )s A?/))C)ntKpro-ides the ;re *#ator) mechanism; ") which ;United States mi#itar) and ci-i#ian personne# Nma) -isitO temporari#) in the %hi#ippines in connection with acti-ities appro-ed ") the %hi#ippine Go-ernment(; It contains pro-isions re#ati-e to entr) and depart*re of American personne#, dri-in and -ehic#e re istration, crimina# 3*risdiction, c#aims, importation and e4portation, mo-ement of -esse#s and aircraft, as we## as the d*ration of the a reement and its termination( Its primar) oa# is to faci#itate the promotion of optima# cooperation "etween American and %hi#ippine mi#itar) forces in the e-ent of an attac! ") a common foe( 1-) 9TO CASE #TAFADA VS. ANGARA) . F)/nan0)1
Facts:
The Rep*"#ic of the %hi#ippines, thro* h 2TI Secretar) &a-arro si ned in the Fina# Act 'm"od)in the Res*#ts of the Ur* *a) Ro*nd of M*#ti#atera# &e otiations( The %hi#ippine Senate, then, recei-ed a #etter from the %resident of the %hi#ippines statin that the Ur* *a) Ro*nd Fina# Act +the A reement esta"#ishin the /or#d Trade $r ani9ation, is s*"mitted to them for their conc*rrence( Another #etter on the same s*"3ect was i-en to the Senate( Senate adopted a reso#*tion e4pressin its conc*rrence in the ratification of the internationa# a reement( Thereafter, the %resident si ned the Instr*ment of Ratification( Howe-er, the /T$ A reement ratified ") the %resident did not contain certain doc*ments contained in the Fina# Act si ned ") the 2TI Secretar)( This action was fi#ed ") Tanada et a# ?*estionin the -a#idit)Aconstit*tiona#it) of the /T$ A reement(
Iss*es: Is the /T$ A reement consistent with the Constit*tionJ 2oes the /T$ A reement *nd*#) #imit and restrict %hi#ippine so-erei nt)J 2oes the conc*rrence made ") the Senate and the %resident, in essence, defecti-e since it did not inc#*de other doc*ments contained in the Fina# Act si ned ") the 2TI Secretar)J He#d: An initia# ?*estion was posed re ardin 3*risdiction( The SC r*#ed that it has 3*risdiction o-er the matter since it has the power to determine whether there was GA2:'G on the part of the Senate and %resident( Howe-er, the SC wi## not re-iew the wisdom of their decisions( The /T$ A reement is not -io#ati-e of the Constit*tion( The re#iance on the prinicip#e of economic nationa#ism espo*sed in Artic#es I+sec 56, and 5I+secs 57 and 5I, of the Constit*tion is misp#aced as these are not se#f-e4ec*tin pro-isions( The) do not em"od) 3*dicia##) enforcea"#e constit*tiona# ri hts "*t are *ide#ines for #e is#ation( These are "road constit*tiona# princip#es that need #e is#ati-e enactments to imp#ement them( Moreo-er, whi#e the Constit*tion indeed mandates a "ias in fa-or of Fi#ipino oods, ser-ices, #a"or and enterprises, at the same time, it reco ni9es the need for "*siness e4chan e with the rest of the wor#d on the "ases of e?*a#it) and reciprocit) and #imits protection of Fi#ipino enterprises on#) a ainst forei n competition and trade practices that are *nfair( The Constit*tion did not intend to promote an iso#ationist po#ic)( In addition, the GATT itse#f has pro-ided "*i#t-in protection from s*ch *nfair forei n competition and trade practices( +the important part, %articipatin in the /T$ A reement did #imit or restrict, to some e4tent, the a"so#*teness of o*r so-erei nt), "*t is not necessari#) reprehensi"#e( /hi#e so-erei nt) has traditiona##) "een deemed a"so#*te and a##-encompassin on the domestic #e-e#, it is howe-er s*"3ect to restrictions and #imitations -o#*ntari#) a reed to ") the %hi#ippines, e4press#) or imp#ied#), as a mem"er of the fami#) of nations( Thro* h the incorporation c#a*se in the Constit*tion, the %hi#ippines is "o*nd ") enera##) accepted princip#es of #aw as the) a*tomatica##) form part of the #aws of the #and( $f reat importance is the princip#e of pacta s*nt ser-anda, which means that internationa# a reements m*st "e performed in ood faith( A state which has contracted -a#id internationa# o"#i ations is "o*nd to ma!e in its #e is#ation s*ch modifications as ma) "e necessar) to ens*re the f*#fi##ment of the o"#i ations *nderta!en( So ") their -o#*ntar) act, nations ma) s*rrender some aspects of their state power in e4chan e for reater "enefits ranted ") or deri-ed from a con-ention or pact( For instance, when the %hi#ippines 3oined the U& and other "i#atera# re#ations with other States, it effecti-e#) #imits its so-erei n powers of ta4ation, eminent domain and po#ice power( It can then "e inferred that a portion of so-erei nt) ma) "e wai-ed witho*t -io#atin the Constit*tion ") -irt*e of the %hi#ippines "ein "o*nd ") enera##) accepted princip#es of #aw( A Fina# Act is not the treat) itse#f( It is 3*st a s*mmar) of the proceedin s that too! p#ace d*rin the ne otiation sta e( In fact, the Senate did what the Fina# Act re?*iredKthe conc*rrence tot the /T$ A reement( B) the ratification of the A reement, the other doc*ments in ?*estion +Ministeria# 2ec#arations etc, were deemed adopted( %#*s, the /T$ A reement itse#f stip*#ated what m*#ti#atera# a reements are deemed inc#*ded(
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas In s*m, there was no GA2:'G on the part of the Senate and the %resident( /hen the /T$ A reement was ratified and made part of the #aw of the #and, the Senate and the %resident was e4ercisin , #e itimate#), its so-erei n d*t) and power( &otwithstandin o"3ections a ainst possi"#e #imitations on nationa# so-erei nt), the /T$ remains as the on#) -ia"#e str*ct*re for m*#ti#atera# tradin and de-e#opment of internationa# trade #aw( 12) CASE CONCERNING MARITIME DELIMITATION IN THE AREA BET9EEN GREENLAND AND ;AN MA5EN #DENMARK VS. NOR9A5) . Gana Facts: -
The case is a disp*te "etween 2enmar! and &orwa) re ardin the territoria# 3*risdiction o-er the part of the At#antic $cean "etween Green#and +part of the Vin dom of 2enmar!, and the is#and of Gan Ma)en +part of the Vin dom of &orwa),( The distance "etween the coast of Green#and and Gan Ma)en is ID7 na*tica# mi#es( The pro"#em arose when 2enmar!, thro* h an '4ec*ti-e $rder, dec#ared the area I77 mi#es from the coast of Green#and as fisher) 9ones of 2enmar!( A#so, &orwa) enacted #e is#ation empowerin their o-ernment to esta"#ish I77-mi#e economic 9ones aro*nd its coast( Th*s, there was an o-er#ap "etween the fisher) 9one of 2enmar! +off the coast of Green#and, and the economic 9one of &orwa) +off the coast of Gan Ma)en,( &orwa) ar *es that "oth parties a#read) came *p with an a reement o-er the o-er#appin 9ones on 2ec( F, 56BD( The said a reement #imited the c#aims of "oth co*ntries *p to a median #ine which was at the center of Green#and and Gan Ma)en( &orwa) a#so "ases its c#aim on the 56DF Gene-a Con-ention on the Continenta# She#f, which a#so so#-es the pro"#em of o-er#appin c#aims ") instit*tin a median #ine which is e?*idistant from the coasts of either state( &orwa) a#so points o*t that ") the cond*ct of 2enmar!, it can "e inferred that the #atter accedes to the idea of a median #ine( &orwa) pointed to a Ro)a# 2ecree, a 2anish Act and dip#omatic notes and #etters as proofs of s*ch( How to di-ide the area "etween Green#and and Gan Ma)enJ The Co*rt he#d that Art( B of the 56DF Gene-a Con-ention on the Continenta# She#f sho*#d "e fo##owed( The said artic#e states that in cases where two or more states ha-e disp*tes of the same sort as the one in this case, there sho*#d "e a median #ine formed e?*idistant from the coasts of the states in-o#-ed( This media# #ine, tho* h, can "e ad3*sted as stated in the Artic#e and affirmed ") se-era# decisions of the Internationa# Co*rt( The ad3*stment wo*#d "e "ased on specia# circ*mstances, at the discretion of the Co*rt( In this case, the Co*rt fo*nd that the respecti-e coasta# #en ths of Green#and and Gan Ma)en can "e considered as a specia# circ*mstance which ca##s for the ad3*stment of the median #ine( This is considered a specia# circ*mstance "eca*se the difference is s*"stantia#( Green#and possesses a m*ch #on er coast#ine, th*s it sho*#d "e afforded a wider c#aim o-er the disp*ted area "ased on the princip#e of proportiona#it)(
Iss*e: He#d: -
13) CASE CONCERNING THE MILITAR5 AND PARAMILITAR5 ACTIVITIES IN AND AGAINST NICARAGUA #NICARAGUA VS. US) . L"7)1 Facts: -
&icara *a is assai#in certain acts of the US as "ein contrar) to c*stomar) internationa# #aw, to wit: o %#acin of mines in the ports of &icara *a< o S*pportin a mi#itar) ro*p ca##ed the contra forces which has committed -io#ations of h*man ri hts of some &icara *ans< and o Attac!in certain p#aces in &icara *a< The US ar *es that it was mere#) doin so in se#f-defense( It pointed o*t that s*ch *se of force in se#fdefense is a##owed ") internationa# #aw( The US was sa)in that &icara *a was attac!in '# Sa#-ador,
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas Costa Rica and Hond*ras and that the US was mere#) actin to defend the said co*ntries( Iss*e: He#d: /An the acts of the US are contrar) to c*stomar) internationa# #aw( The Co*rt said that the acts were contrar) to c*stomar) internationa# #aw( o First, the attac!s on &icara *a were a ainst the princip#e of the non-*se of force in internationa# re#ations( $"-io*s#), ") attac!in &icara *a and p#acin mines in its ports, the US emp#o)ed force a ainst &icara *a( The US ar *es that a## these acts were in se#f-defense( The Co*rt does not a ree with the US( It he#d that there was no act*a# armed attac! on the co*ntries a##e ed#) "ein protected ") the US to warrant the attac! on &icara *a( /hat &icara *a was *i#t) of was the sendin of arms to the opposition in '# Sa#-ador, Costa Rica and Hond*ras( The co*rt he#d that "ased on c*stomar) internationa# #aw, these acts are not considered as armed attac!s to 3*stif) the attac!s made ") the US as "ein in se#f-defense( o The co*rt fo*nd that the acts of the US a#so -io#ated the princip#e of non-interference which respects the so-erei nt) of a state o-er its territor)( B) s*pportin the contra forces in &icara *a, the US was imp#ied#) coercin the o-ernment of &icara *a to do acts in the manner prefera"#e to the US( In short, the US was imp#icit#) interferin in the o-ernance of &icara *a thro* h the *se of force( o The Co*rt a#so finds that the p#acin of mines ") the US in the ports of &icara *a was a -io#ation of the freedom of na-i ation and commerce *aranteed ") Artic#e RIR of the Treat) of Friendship, Commerce and &a-i ation of 56DB( The Co*rt therefore finds that the United States is prima facie in "reach of an o"#i ation not to depri-e the 56DB Treat) of its o"3ect and p*rpose %pacta sunt ser$anda', and has committed acts in contradiction with the terms of the Treat)( o In the end, the Co*rt he#d that the US is *nder an o"#i ation to ma!e reparation to the Rep*"#ic of &icara *a for a## in3*r) ca*sed to &icara *a ") the "reaches of o"#i ations *nder c*stomar) internationa# #aw en*merated a"o-e and ") the "reaches of the Treat) of Friendship, Commerce and &a-i ation(
NICARAGUA VS. US - Ca'!n!san (" SC n"t)s Tan*+!'!t FACTS, In 56=B, the US made a dec#aration containin the fo##owin reser-ation: Cthis dec#aration sha## remain in force for a period of D )ears and thereafter *nti# the e4piration of B months after notice ma) "e i-en to terminate this dec#aration(E In 56F=, the US deposited with the U& Sec Gen a notification referrin to the 56=B dec#aration, statin : Cthe aforesaid dec#aration sha## not app#) to disp*tes with an) Centra# American State or arisin o*t of or re#ated to e-ents in Centra# America, an) of which disp*tes sha## "e sett#ed in s*ch manner as the parties to them ma) a ree(E &icara *a fi#ed a c#aim a ainst the US for dama es in connection with mi#itar) and parami#itar) acti-ities a##e ed#) s*pported ") the US in and a ainst &icara *a( The US ar *es that p*rs*ant to the 56F= reser-ation that it made, the ICG has no 3*risdiction o-er the contro-ers), since it in-o#-es a disp*te with a Centra# American State( &icara *a ar *es that the ICG has 3*risdiction *nder the 56=B dec#aration, which was not terminated ") the s*"se?*ent 56F= dec#aration, since the US ne-er a-e the B-months notice of termination, as re?*ired ") the reser-ation that it had made in 56=B( Accordin to &icara *a, the US concei-ed, created, and or ani9ed a mercenar) arm), the contra force, in &icara *a( The co*rt fo*nd that contra force was not created ") the US, "*t that a n*m"er of the operations were decided and p#anned, if not act*a##) ") the US ad-isers, then at #east in c#ose co##a"oration with them, and on the "asis of the inte##i ence and #o istic s*pport which the US was a"#e to offer( The US a-e assistance to the contra
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas force in the form of #o istic s*pport, the s*pp#) of information on the #ocation and mo-ements of the Sandinista troops, the *se of sophisticated methods of comm*nication, etc( Howe-er, the e-idence does not warrant a findin that the US a-e direct com"at s*pport( ISSUE, /A& the dec#aration is sti## "indin on the US( HELD, The ICG has 3*risdiction( The 56=B dec#aration is sti## "indin on the US( The US cannot dero ate from the time-#imit pro-iso inc#*ded in its 56=B dec#aration( The notion of reciprocit) is concerned with the scope and s*"stance of the commitments entered into, inc#*din reser-ations, and not with forma# conditions of their creation, d*ration, or e4tinction( Reciprocit) cannot "e in-o!ed in order to e4c*se depart*re from the terms of a State1s own dec#aration( &icara *a can in-o!e the si4 months1 notice a ainst the US, not on the "asis of reciprocit), "*t "eca*se it is an *nderta!in which is an inte ra# part of the instr*ment that contains it( The 56F= notification cannot o-erride the o"#i ation of the US to s*"mit to the 3*risdiction of the Co*rt -is-H--is &icara *a( ISSUE, /hether the contras can "e considered as or ans of the US Go-ernment, or as actin on its "eha#f( HELD, &o, the contras are not a ents of the US o-ernment( The e-idence is ins*fficient to demonstrate the tota# dependence of the contras on US aid( A partia# dependenc) ma) "e inferred from the fact that the #eaders were se#ected ") the US, and from other factors s*ch as the or ani9ation, trainin and e?*ippin of the force, p#annin of operations, the choosin of tar ets, and the operationa# s*pport pro-ided( There is, howe-er, no c#ear e-idence that the US act*a##) e4ercised s*ch a de ree of contro# as to 3*stif) treatin the contras as actin on its "eha#f( Therefore, the contras, remain responsi"#e for their own acts, in partic*#ar for a##e ed -io#ations ") them of h*manitarian #aw( For the US to "e #e a##) responsi"#e, it wo*#d ha-e to "e pro-ed that the State had effecti-e contro# of the operations in the co*rse of which the a##e ed -io#ations were committed(
58, Treat) of Antarctica W Mendio#a 5F, %rincipa#it) of Sea#and W Morada Facts: The %rincipa#it) of Sea#and, #ocated on an a"andoned /or#d /ar II anti-aircraft p#atform se-en mi#es +55 !m, off the 'n #ish coast, c#aims that it is a #e itimate independent co*ntr) "*t that@s ?*ite do*"tf*#( In 56B8, retired British Arm) ma3or %add) Ro) Bates occ*pied the a"andoned Ro* h@s Tower in the &orth Sea( He and his wife disc*ssed independence with British attorne)s and s*"se?*ent#) dec#ared independence for the %rincipa#it) of Sea#and on Septem"er I, 568B( Bates ca##ed himse#f %rince Ro) and named his wife %rincess Goan( The) "e an iss*in coins, passports, and stamps for their new co*ntr)( In s*pport of Sea#and@s so-erei nt), %rince Ro) fired warnin shots at a "*o) repair "oat that came c#ose to Sea#and( The %rince was char ed with *n#awf*# possession and dischar e of a firearm ") the British o-ernment( The 'sse4 co*rt proc#aimed that the) didn@t ha-e 3*risdiction o-er the tower and the British o-ernment chose to drop the case d*e to moc!er) ") the media( That case represents Sea#and@s first c#aim to de facto internationa# reco nition as an independent co*ntr)( +The United Vin dom demo#ished the on#) other near") tower #est others et the idea to a#so stri-e for independence(, The second de facto
reco nition was when the 2*tch o-ernment sent a dip#omat to Sea#and to petition the re#ease of its nationa#s who were detained ") %rince Ro) as prisoners of war( Toda), on#) %rince Ro) #i-es on the tower at si4t) feet a"o-e the sea( %rincess Goan@s arthritis isn@t cond*ci-e to #i-in on the &orth Sea and tho* h the ro)a# fami#)@s son, Michae# ta!es care of m*ch of the "*siness for Sea#and, he a#so #i-es onshore( The Bateses a## maintain ;d*a#; citi9enship in the United Vin dom and Sea#and( In I777, Sea#and came into the news "eca*se a compan) ca##ed Ha-en Co :td p#anned on operatin a comp#e4 of Internet ser-ers at Sea#and, o*t of the reach of o-ernmenta# contro#( Ha-enCo a-e the Bateses XID7,777 and stoc! to #ease Ro* h@s Tower and the compan) has the option to p*rchase Sea#and in the f*t*re( This transaction was especia##) satisf)in to the Bateses as the maintenance and s*pport of Sea#and has "een ?*ite e4pensi-e o-er the past LL )ears( Iss*e: /A& Sea#and is an independent State He#d: &$( There are ei ht accepted criteria *sed to determine whether an entit) is an independent co*ntr) or not( 5, Has space or territor) which has internationa##) reco ni9ed "o*ndaries( &o( Sea#and has no #and or "o*ndaries at a##, it@s a tower "*i#t ") the British as an anti-aircraft p#atform d*rin /or#d /ar II( Certain#), the o-ernment of the U(V( can assert that it owns this p#atform( Sea#and a#so #ies within the United Vin dom@s proc#aimed 5I na*tica# mi#e territoria# water #imit( Sea#and c#aims that since it asserted its so-erei nt) "efore the U(V( e4tended its territoria# waters, it concept of "ein ; randfathered in; app#ies( Sea#and a#so c#aims its own 5I(D na*tica# mi#e territoria# water( I, Has peop#e who #i-e there on an on oin "asis( &ot rea##)( As of I777, on#) one person #i-es at Sea#and and he@s oin to mo-e o*t, to "e rep#aced ") temporar) residents wor!in for Ha-en Co( %rince Ro) maintains his U(V( citi9enship and passport, #est he end *p somewhere where Sea#and@s passport isn@t reco ni9ed( L, Has economic acti-it) and an or ani9ed econom)( A State re *#ates forei n and domestic trade and iss*es mone)( &o( Ha-en Co represents Sea#and@s on#) economic acti-it) *p to now( /hi#e Sea#and iss*ed mone), there@s no *se for it "e)ond co##ectors( :i!ewise, Sea#and@s stamps on#) ha-e -a#*e to a phi#ate#ist +stamp co##ector, as Sea#and is not a mem"er of the Uni-ersa# %osta# Union, mai# from Sea#and can@t "e sent e#sewhere +nor is there m*ch sense in mai#in a #etter across the tower itse#f,( =, Has the power of socia# en ineerin , s*ch as ed*cation( %erhaps( If it had an) citi9ens( D, Has a transportation s)stem for mo-in oods and peop#e( &o( B, Has a o-ernment which pro-ides p*"#ic ser-ices and po#ice power( .es, "*t that po#ice power is certain#) not a"so#*te( The United Vin dom can assert its a*thorit) o-er Sea#and ?*ite easi#) with a few po#ice officers( 8, Has so-erei nt)( &o other State sho*#d ha-e power o-er the State@s territor)( &o( The United Vin dom has power o-er Sea#and@s territor)( The British o-ernment was ?*oted in Wired, ;A#tho* h Mr( Bates st)#es the p#atform as the %rincipa#it) of Sea#and, the U(V( o-ernment does not re ard Sea#and as a state(; F, Has e4terna# reco nition( A State has "een ;-oted into the c#*"; ") other States( &o( &o other co*ntr) reco ni9es Sea#and( An officia# from the United States 2epartment of State was ?*oted in Wired, ;There are no independent principa#ities in the &orth Sea( As far as we are concerned, the) are 3*st Crown dependencies of Britain(; The British Home $ffice was ?*oted ") the BBC that the United Vin dom does not reco ni9e Sea#and and, ;/e@-e no reason to "e#ie-e that an)one e#se reco ni9es it either(;
56, /estern Sahara Case W Ri-as
FACTS: /estern Sahara is inha"ited ") or ani9ed "*t nomadic tri"es( Spain, Ma*ritania and A# eria asserts so-erei n ri hts o-er it ISSU': /A& /estern Sahara is terra n*##i*s +territor) which prior to occ*pation "e#on ed to no state or which has "een a"andoned ") a prior occ*pant, H':2: It is not terra n*##i*s Territories inha"ited ") tri"es or peop#e ha-in a socia# and po#itica# or ani9ation were not re arded as terra n*##i*s The co*rt conc#*des that the materia# and information presented to it do not esta"#ish an) tie of territoria# so-erei nt) o-er the /estern Sahara( 2isco-er) of terra n*##i*s is not eno* h to esta"#ish so-erei nt)( It m*st "e accompanied ") effecti-e contro# I7, Ho#) See -s( 2e# Rosario W Sarenas Facts: The Ho#) See e4ercises so-erei nt) o-er the >atican Cit) in Rome and is represented in the %hi#ippines ") the %apa# &*ncio Rosario is the 3*d e of RTC of Ma!ati( %ri-ate respondent is Star"ri ht Sa#es 'nterprises Inc, en a ed in the rea# estate "*siness( Ms r( Ciri#os in "eha#f of the Ho#) See and %hi#ippine Rea#t) Corporation +%RC, so#d to Ramon :ic*p L parce#s of #and in %arana?*e( The a reement was made on the condition that :ic*p i-e %577! as earnest mone) and that the se##ers wi## c#ear the #ots of s?*atters( :ic*p paid the earnest mone) and #ater on transferred his ri hts to Star"ri ht( Star"ri ht demanded from the se##ers that the) c#ear the #ots of s?*atters( Ms r( Ciri#os informed Star"ri ht that this cannot "e done "eca*se the s?*atters ref*se to #ea-e( He then a-e the option that either Star"ri ht c#ear the #ots themse#-esor that the earnest mone) "e ret*rned to them( Star"ri ht then proposed that if the) themse#-es wi## remo-e the s?*atters, the p*rchase price sho*#d "e red*ced( Ms r( Ciri#os ref*sed s*ch offer, ret*rned the earnest mone) and demanded pa)ment of the who#e price( :ater on, Star"ri ht disco-ered that the #ots ha-e "een so#d to Tropicana( Ms r( Ciri#os ca##ed for dismissa# of the case for #ac! of 3*risdiction "ased on so-erei n imm*nit) from s*it( 2FA #ater on inter-ened in the case +the 2FA a#wa)s inter-enes in cases in-o#-in dip#omatic imm*nit), Iss*e: /A& the co*rt has 3*risdiction o-er the Ho#) See He#d: &o, the co*rt has no 3*risdiction o-er the Ho#) See In %I:, when a state or internationa# a enc) wishes to p#ead so-erei n or dip#omatic imm*nit), it re?*ests the Forei n office of the state where it is to con-e) to the co*rt that it is entit#ed to imm*nit)( In the %hi#ippines, the practice is to first sec*re an e4ec*ti-e endorsement of its c#aim of so-erei n or
dip#omatic imm*nit)( See the case for histor) of the so-erei nt) of the >atican +The :ateran Treat) esta"#ished the statehood of the >atican Cit), The %hi#ippines has accorded the Ho#) See the stat*s of forei n so-erei n( It had dip#omatic representations with the co*ntr) since 56D8( Sec I of Artic#e I of the 56F8 Constit*tion adopts princip#es of Internationa# :aw( %rincip#es of Int#( :aw are deemed incorporated as part of the #aw of the #and( /here the p#ea of imm*nit) is reco ni9ed and affirmed ") the e4ec*ti-e "ranch, it is the d*t) of the co*rts to accept this c#aim so as not to em"arrass the e4ec*ti-e arm of the o-ernment( I5, '4penses of the U& W Anastacio II, Tinoco Ar"itration W Beron FACTS: The o-ernment of Costa Rica *nder %res( Gon9a#es was o-erthrown ") Tinoco Tinoco1s o-ernment contin*ed for I )ears fa##in soon after his retirement After the fa## of the Tinoco administration, the o#d constit*tion was restored and e#ections were he#d *nder it The :aw of &*##ities was passed in-a#idatin contracts with the o-ernment d*rin the Tinoco re ime as we## as n*##if)in the iss*e if 5DM Co#ones c*rrenc) notes and the circ*#ation of notes of nomination of 5,777 Co#ones "i##s ") the Tinoco o-ernment( Great Britain are c#aimin Costa Rica1s inde"tedness and concession which "oth had "een ann*##ed ") the :aw of &*##ities Costa Rica on the other hand denies #ia"i#it) for the acts and o"#i ation of the Tinoco o-ernment ISSU': /A& Costa Rica is #ia"#e for the #ia"i#ities of the Tinoco o-ernment H':2: .'SU Under the %rincip#e of Contin*it) of States, the sate is "o*nd ") the en a ements entered into ") o-ernments that ha-e ceased to e4ist( The restores o-ernment is enera##) #ia"#e for the acts of the *s*rper A#so chan es in the o-ernment or the interna# po#ic) do not, as a r*#e, affect its position in the Internationa# :aw( Tho* h the o-ernment chan es, the nation remains, with ri hts and o"#i ations *nimpaired &on-reco nition ") other nations of a o-ernment c#aimin to "e a nationa# persona#it), is *s*a##) appropriate e-idence that it has not attained the independence and contro# entit#in it ") Internationa# :aw to "e c#assified as s*ch( B*t when reco nition of a o-ernment is determined ") in?*ir), not into its de facto so-erei nt) "*t into its i##e itimac) or irre *#arit) of ori in, their non-reco nition #oses e-identia# wei ht W it cannot o*twei h e-idence of the de facto character if a o-ernment( IL, An #o-&orwei ian Fisheries Case W Ca#inisan *sin Fernande91 Boo! Under a 56LD decree, &orwa) de#imited its territoria# waters ") drain "ase#ines from point to point on the is#ands off its coast +Cs!3aer aardE,( Since 5655, British fishin -esse#s had operated within the &orwei ian Coast, disre ardin the decree c#aimin the waters as hi h seas as not of the is#ands were more than L mi#es from each others( '-ent*a##), the British fishin -esse#s were sei9ed and condemned
") norwei ian a*thorities for -io#ation of the re *#ations of the coasta# state ") fishin in the norwei ian territoria# sea( The disp*te was e-ent*a##) "ro* ht to the ICG ") the British Go-ernment in 56=6, on the contention that sei9*re occ*rred more than fo*r mi#es off the &orwei ian Coast( Both parties a reed that fo*r mi#es co*#d "e *sed as the "readth of the territoria# waters, in -iew of the historic &orwei ian c#aim to fo*r mi#es( Upho#din &orwa)1s c#aim to *se strai ht "ase#ines, the Co*rt re3ected the British Contenetions +5, that the o*ter #imits of &owei ian territoria# waters m*st not "e more than fo*r mi#es from some point of the shore< and +I, that with the e4ception of "a)s, the "ase#ine m*st "e the act*a# #ow water mar!( Ta!in co ni9ance of the e4traordinar) eo raphic pec*#iarities of the &orwei ina coast#ine of a"o*t 5I7,777 is#ands, roc!s and reefs, the co*rt in part r*#ed: Some reference m*st "e made to the c#ose dependence of the territoria# sea *pon the #and domain,( It is the #and which confers *pon the coasta# State a ri ht to the waters off its coasts( It fo##ows that whi#e s*ch a State m*st "e a##owed the #atit*de necessar) in order to "e a"#e to adapt its de#imitation to practica# needs an d #oca# rew*irements, the drawin of "ase #ines m*st not depart to an) apprecia"#e e4tent from the enera# direction of the coast( Another f*ndamenta# consideration of partic*#ar importance in this case is the more or #ess c#ose re#ationship e4istin "etween certain sea areas and the #and formations which di-ide or s*rro*nd them( The rea# ?*estion raised in the choice of "ase#ines is in effect whether certain sea areas #i-in within these #ines are s*fficient#) c#ose#) #in!ed to the #and domain to "e s*"3ect to the re ime of interna# waters( This idea, which is at the -asis of the determination of the r*#es re#atin to "a)s, sho*#d "e #i"era##) app#ied in the case of a coast, the eo raphica# confi *ration of which is as *n*s*a# as that of &orwa)( Fina##), there is one consideration not "e o-er#oo!ed, the scope of the which e4tends "e)ond p*re#) eo raphica# factors< that of certain economic interests pec*#iar to a re ionm the rea#it) and importance of which are c#ear#) e-idenced ") a #on *sa e( I=, &orth Sea Continenta# She#f Cases W Fernande9 %4ederal )epublic of Germany $ 5enmark' %4ederal )epublic of Germany $ 2etherlands' Facts: The case is a"o*t the de#imitation of the continenta# she#f "etween German) and 2enmar!, and "etween German) and &ether#ands( +The determination of a State1s continenta# she#f, partic*#ar#) in ad3acent coasta# States, is important in ascertainin 3*risdiction o-er the waters that is C"orderin E them in common, If )o* #oo! at the map of this re ion, German)1s coast#ine on the north +that which faces the &orth Sea, is oin inwards the main#and +"asica##) it1s a conca-e fi *re,( &ether#ands is on one side of German), whi#e 2enmar! is on the other( It is a#so noticea"#e that the coast#ines of 2enmar! and &ether#ands +the ones facin the &orth Sea, are o*tward#) c*r-in ( The case was s*"mitted to the ICG to determine the princip#es or r*#es of internationa# #aw, app#ica"#e, in carr)in o*t the de#imitation of the continenta# she#f( &ether#ands and 2enmar! ar *e that the Ce?*idistance princip#eE in Artic#e B of the Gene-a Con-ention is app#ica"#e( S*ch princip#e essentia##) entai#s that )o*r co*ntr)1s continenta# she#f wi## "e drawn *p to a
certain distance from )o*r shore#ines--fo##owin the conto*rs and indentations( C#ear#) the e?*idistance princip#e is to the disad-anta e of German)Kit ha-in an inward shore#ine( If said princip#e is to "e app#ied to German), then it wo*#d necessari#) #ose 3*risdiction o-er certain portions of the &orth Sea( /hi#e 2enmar! and &ether#ands wo*#d "enefit from a widenin tendenc) on the area of continenta# she#f off that coast( German) contends that a## the parties sho*#d "e i-en a C3*st and e?*ita"#e shareE in proportion to the #en th of its sea-fronta e +essentia##) fo##owin the area facin the &orth sea witho*t re ard to inward or o*tward indentations,( In addition, German) pra)s that the States in-o#-ed "e entit#ed to a continenta# she#f area *p to a centra# point as its median #ine( &ether#ands and 2enmar! ar *e that German) is "o*nd ") Art B of the Gene-a Con-ention, despite the #atter1s non-ratification of said treat), "eca*se that pro-ision has formed part of internationa# c*stom and can e-en "e considered to "e a enera# princip#e of #aw( German) ar *es otherwise( Moreo-er, it ar *es that e-en if the pro-ision has ained the stat*s of c*stom, the confi *ration of German)1s coast constit*ted a specia# circ*mstance +this is simi#ar#) pro-ided in the pro-ision, which wo*#d 3*stif) a depart*re from the e?*idistance princip#e( Iss*e: How sho*#d the de#imitation of the &orth Sea continenta# she#f "e carried o*tJ He#d: It sho*#d "e carried o*t ") a reement "etween the States ta!in into acco*nt eo raphica# e?*ita"#e considerations inc#*din enera# and specia# feat*res of the coasts( The Co*rt decided the case "ased on e?*it) considerations( Since neither treat) nor c*stom is o-ernin , the Co*rt tried to reach an e?*ita"#e conc#*sion( +$n apportionin the continenta# she#f area into 3*st and e?*ita"#e shares, The Co*rt is not tas!ed to apportion the areas concerned, "*t mere#) to de#imit it( The continenta# she#f is a nat*ra# pro#on ation of a State1s #and territor)( Since a State has so-erei nt) o-er its #and territor), it nat*ra##) has a ri ht o-er the pro#on ation of its #andKi(e( the continenta# she#f( For the co*rt to apportion the areas is inconsistent with the "asic concept of continenta# she#f entit#ement( +$n the ar *ment of c*stom, Artic#e B of the Gene-a Con-ention does not em"od) an e4istin c*stomar) norm( The pro-ision cannot "e said to ha-e cr)sta##i9ed into a r*#e of c*stomar) internationa# #aw for se-era# reasons: First, Artic#e B was framed to "e p*re#) contract*a# +S*ffice it to state that the Con-ention was not a treat) of codification "*t p*re#) de #e e ferenda Ncreatin new r*#es "etween the contractin StatesO,< Second, the n*m"er of ratifications and accessions to the treat) was hard#) s*fficient to constit*te a enera# r*#e of internationa# #aw< Third, state practice was neither e4tensi-e eno* h nor -irt*a##) *niform to show a enera# reco nition of an e-o#-in norm< And fo*rth, the treat) itse#f a##ows for reser-ations +in effect, contractin States ma) practice or not practice the e?*idistance princip#e, +$n the ar *ment of treat), German) was not #e a##) "o*nd ") Artic#e B( Tho* h it si ned the Gene-a Con-ention, it has not ratified said treat)( /h) is this case important on the topic of territor) of StatesJ The case i##*strates a mode of sett#in disp*tes on o-er#appin maritime areas( It has "een o"ser-ed that Internationa# co*rts and ar"itration "odies ha-e app#ied e?*ita"#e princip#es instead of traditiona# median #ine or midd#e #ines( U&C:$S III has a#so reco ni9ed s*ch manner of sett#in o-er#appin maritime
areas(
'astern Green#and +&orwa) -s( 2enmar!, W Gana S!)#a" - :ope9 Ah Sin +%eop#e -s( /on Ch*en Min , W Mendio#a Facts: A %A: f#i ht arri-ed in the %hi#ippines which contained the 55 acc*sed in this case W I of which were Hon Von +British, &ationa#s, whi#e the rest were Ma#a)sians( After passin thro* h and o"tainin c#earance from immi ration officers at the &AIA, the to*r ro*p went to the "a a e c#aim area to retrie-e their respecti-e chec!ed-in "a a es( The) p#aced the same in one p*shcart and proceeded to '4press :ane 0 which at that time was manned ") c*stoms e4aminer 2ani#o Gome9( At first, Gome9 paid no mind to the "o4es #a"e#ed CA#pen Cerea#sE which he fo*nd in the first I "a a es( Howe-er, when he fo*nd the same "o4es in the third "a a e, he "ecame s*spicio*s and opened the "o4es( He fo*nd that the) contained a cr)sta##ine s*"stance that was in a p#astic "a ( Gome9 informed an airport officia# of his findin s( As Gome9 p*##ed o*t these "o4es from their respecti-e "a a es, he "*nd#ed said "o4es ") p*ttin mas!in tape aro*nd them and handed them o-er to the airport officia#( Upon receipt of these "*nd#ed "o4es, the officia# ca##ed o*t the names of acc*sed as #isted in the passen ers1 manifest and ordered them to si n on the mas!in tape p#aced on the "o4es a##e ed#) reco-ered from their respecti-e "a a es( Capt( Francisco testified that short#) after a## "o4es of A#pen Cerea#s were reco-ered, he cond*cted a fie#d test on a samp#e of the white cr)sta##ine s*"stance( His test showed that the s*"stance was indeed Csha"*(E Capt( Francisco immediate#) informed the e#e-en +55, acc*sed that the) were *nder arrest( The) were "ro* ht to Camp Crame( At Camp Crame, the) were a#so made to si n the p#astic "a s that contained the sha"*( A## the acc*sed assai# the con-iction of the co*rt "e#ow ") a##e in the e-idence was inadmissi"#e( Iss*e: /A& the e-idence was admissi"#e( He#d: The e-idence is inadmissi"#e( At the o*tset, the Co*rt ho#ds that the si nat*res of acc*sed on the "o4es, as we## as on the p#astic "a s containin Csha"*,E are inadmissi"#e in e-idence( A caref*# st*d) of the records re-ea# that acc*sed were ne-er informed of their f*ndamenta# ri hts d*rin the entire time that the) were *nder in-esti ation( Specifica##), acc*sed were not informed of their Miranda ri hts i(e( that the) had the ri ht to remain si#ent and to co*nse#
and an) statement the) mi ht ma!e co*#d "e *sed a ainst them, when the) were made to affi4 their si nat*res on the "o4es of A#pen Cerea#s whi#e the) were at the &AIA and a ain, on the p#astic "a s when the) were a#read) ta!en in c*stod) at Camp Crame( B) affi4in their si nat*res on the "o4es of A#pen Cerea#s and on the p#astic "a s, acc*sed in effect made a tacit admission of the crime char ed for mere possession of Csha"*E is p*nished ") #aw( These si nat*res of acc*sed are tantamo*nt to an *nco*nse##ed e4tra-3*dicia# confession which is not sanctioned ") the Bi## of Ri hts +Section 5IN5ONLO, Artic#e III, 56F8 Constit*tion,( The) are, therefore, inadmissi"#e as e-idence for an) admission wr*n from the acc*sed in -io#ation of their constit*tiona# ri hts is inadmissi"#e a ainst them( The fact that a## acc*sed are forei n nationa#s does not prec#*de app#ication of the Ce4c#*sionar) r*#eE "eca*se the constit*tiona# *arantees em"odied in the Bi## of Ri hts are i-en and e4tend to a## persons, "oth a#iens and citi9ens( :ot*s Case +T*r!e) -s( France, W Morada Achi##e :a*ro Incident W Ri-as %inochet Case W Sarenas Ado#f 'ichman W Anastacio T*scanino Case W Beron A#-are9-Machain W Ca#inisan
Facts: Respondent, a citizen and resident of Mexico, was forcibly kidnapped from his home and flown by private plane to Texas, where he was arrested for his participation in the kidnapping and murder of a rug !nforcement "dministration # !"$ agent and the agent%s pilot& "fter concluding that !" agents were responsible for the abduction, the istrict 'ourt dismissed the indictment on the ground that it violated the !xtradition Treaty between the (nited )tates and Mexico #!xtradition Treaty or Treaty$, and ordered respondent%s repatriation& The 'ourt of "ppeals affirmed& *ased on one of its prior decisions, the court found that, since the (nited )tates had authorized the abduction and since the Mexican government had protested the Treaty violation, +urisdiction was improper& Issue: W/N the forcible abduction prohibits trial.
Public International Law (Dean Roy): Case Digests Anastacio, Beron, Calinisan, Fernandez, Gana, Lopez, Mendiola, Morada, Rivas, Sarenas Held: The fact of respondent%s forcible abduction does not prohibit his trial in a (nited )tates court for violations of this country%s criminal laws& #a$ " defendant may not be prosecuted in violation of the terms of an extradition treaty& United States v& Rauscher. ,owever, when a treaty has not been invoked, a court may properly exercise +urisdiction even though the defendant%s presence is procured by means of a forcible abduction& Ker v& Illinois. Thus, if the !xtradition Treaty does not prohibit respondent%s abduction, the rule of Ker applies and +urisdiction was proper& #b$ -either the Treaty%s language nor the history of negotiations and practice under it supports the proposition that it prohibits abductions outside of its terms& The Treaty says nothing about either country refraining from forcibly abducting people from the other%s territory or the conse.uences if an abduction occurs& /n addition, although the Mexican government was made aware of theKer doctrine as early as 0123, and language to curtail Ker was drafted as early as 0145, the Treaty%s current version contains no such clause& #c$ 6eneral principles of international law provide no basis for interpreting the Treaty to include an implied term prohibiting international abductions& /t would go beyond established precedent and practice to draw such an inference from the Treaty based on respondent%s argument that abductions are so clearly prohibited in international law that there was no reason to include the prohibition in the Treaty itself& /t was the practice of nations with regard to extradition treaties that formed the basis for this 'ourt%s decision in Rauscher, supra, to imply a term in the extradition treaty between the (nited )tates and !ngland& Respondent%s argument, however, would re.uire a much larger inferential leap with only the most general of international law principles to support it& 7hile respondent may be correct that his abduction was 8shocking8 and in violation of general international law principles, the decision whether he should be returned to Mexico, as a matter outside the Treaty, is a matter for the !xecutive *ranch&
Rep*"#ic of Indonesia -s( >in9on W Fernande9 Facts: Rep*"#ic of Indonesia entered into a Maintenance A reement in A* *st 566D with Games >in9on, owner of >in9on Trade and Ser-ices( In this A reement, >in9on is to maintain certain e?*ipment +aircon *nits, enerators, e#ectrica# faci#ities, water heaters, water p*mps, in the Indonesian 'm"ass) in Mani#a and in Am"assador Soeratmin1s officia# residence here( The a reement sha## "e effecti-e for = )ears and wi## renew itse#f a*tomatica##) *n#ess cance##ed ") either part)( A new Chief of Administration cameKMinister Co*nse##or VasimKhe fo*nd the ser-ices of >in9on *nsatisfactor) and ca##ed for the termination of the a reement( >in9on c#aims that the termination was ar"itrar) and *n#awf*#( >in9on said that Minister Vasim co*#d not ha-e "een dissatisfied of their ser-ices as the #atter e-en re?*ested for an additiona# wor!er in the 'm"ass)( >in9on fi#ed a case a ainst the Rep*"#ic of Indonesia( The Rep*"#ic fi#ed a Motion to 2ismiss on the ro*nd that it is a forei n so-erei n State, has so-erei n imm*nit) from
s*it and cannot "e s*ed as a part)-defendant in the %hi#ippines( '-en Am"assador Soeratmin and Minister Vasim cannot "e s*ed as the) en3o) dip#omatic imm*nit)( >in9on c#aims that the Rep*"#ic of Indonesia a#read) wai-ed its imm*nit) "ased on a pro-ision in the A reement statin that an) #e a# action arisin o*t of the said A reement sha## "e sett#ed accordin to the #aws of the %hi#ippines( He f*rther stated that the two dip#omats can "e he#d #ia"#e in their pri-ate capacities for tortio*s acts done with ma#ice and "ad faith( RTC denied the Motion to 2ismiss( CA affirmed( These co*rts said that the Rep*"#ic of Indonesia a-e its consent to "e s*ed and -o#*ntari#) s*"mitted itse#f to the #aws and 3*risdiction of %hi#ippine co*rts and the dip#omats wai-ed their imm*nit) as we##(
Iss*e: 2id the Rep*"#ic of Indonesia +and its dip#omats, wai-e its imm*nit) from s*itJ He#d: &o, the Rep*"#ic of Indonesia did not wai-e its imm*nit)( The pro-ision in the contract is not necessari#) a wai-er of so-erei n imm*nit) from s*it( S*"mission ") a forei n state to #oca# 3*risdiction m*st "e c#ear and *ne?*i-oca#( It m*st "e i-en e4p#icit#) or ") necessar) imp#ication( There is no s*ch wai-er in this case( A State ma) not "e s*ed witho*t its consent( /hen a State enters into p*re#) commercia# acti-ities the nat*re of the act sho*#d "e determined as to whether it is 3*re imperii +p*"#ic, or 3*re estionis +pri-ate,( If the act is in p*rs*it of a so-erei n acti-it), or an incident thereof, then it is an act 6ure imperii( Conse?*ent#), it is co-ered ") so-erei n imm*nit)( The esta"#ishment of a dip#omatic mission is an act 6ure imperii( And a State ma) enter into contracts with pri-ate entities to maintain the premises, f*rnishin s and e?*ipment of the em"ass) and the #i-in ?*arters of its dip#omatic a ents and officia#s( App#)in it in this case, the Rep*"#ic of Indonesia was actin in p*rs*it of a so-erei n acti-it) when it entered into a contract with >in9on( As to whether or not Am"assador Soeratmin and Minister Vasim ma) "e s*ed in their pri-ate capacities, Artic#e L5 of the >ienna Con-ention on 2ip#omatic Re#ations is c#ear that a dip#omatic a ent en3o)s imm*nit) from the crimina# 3*risdiction of the recei-in State( Tho* h there are e4ceptions +i(e( rea# action re#atin to pri-ate immo-a"#e propert)< action re#atin to s*ccession< action re#atin to an) professiona# or commercia# acti-it) o*tside officia# f*nctions,, the case does not fa## *nder an) of them( The acts of the I dip#omats were incidenta# to the e4ercise of an officia# f*nction( Geffre) :ian -s( %eop#e W Gana FACTS Two crimina# informations for ra-e ora# defamation were fi#ed ") CABA:, a mem"er of the c#erica# staff of the Asian 2e-e#opment Ban! a ainst :IA&G, a Chinese nationa# who
ISSUE HELD
was emp#o)ed as an 'conomist ") the said "an! MTC of Manda#*)on Cit), actin p*rs*ant to an ad-ice from the 2epartment of Forei n Affairs that :IA&G en3o)ed imm*nit) from #e a# processes, dismissed the case $n petition for certiorari and mandam*s, the RTC set aside the order of the MTC Hence, this petition :IA&G ar *es for the dip#omatic imm*nit) of the A2B, its officia#s and staff, from #e a# and 3*dicia# processes in the %hi#ippines 9(N LIANG CAN CLAIM DIPLOMATIC IMMUNIT5 FOR COMPLAINTS AGAINST HIM FOR GRAVE ORAL DEFAMATION NOG SLANDER CANNOT BE SAID TO BE COVERED B5 THE IMMUNIT5 GRANTED TO ADB EMPLO5EES REGARDING ACTS PERFORMED B5 THEM IN THEIR OFFICIAL CAPACIT5 &owhere in the assai#ed decision is dip#omatic imm*nit) denied Howe-er, the iss*e in this case is not rea##) a"o*t dip#omatic imm*nit) "*t whether or not the statements a##e ed#) made ") :IA&G were *ttered whi#e in the performance of his officia# f*nctions, in order for this case to fa## s?*are#) *nder the pro-isions of Section =D +a, of the ;A reement Between the Asian 2e-e#opment Ban! and the Go-ernment of the Rep*"#ic of the %hi#ippines Re ardin the Head?*arters of the Asian 2e-e#opment Ban! ,; to wit: $fficers and staff of the Ban!, inc#*din for the p*rpose of this Artic#e e4perts and cons*#tants performin missions for the Ban!, sha## en3o) the fo##owin pri-i#e es and imm*nities: +a, Imm*nit) from #e a# process with respect to acts performed ") them in their officia# capacit) e4cept when the Ban! wai-es the imm*nit)( After caref*# consideration, the Co*rt he#d that it had no co ent reason to dist*r" its 2ecision of Gan*ar) IF, I777( As the Co*rt has stated therein, the s#ander of a person, ") an) stretch, cannot "e considered as fa##in within the p*r-iew of the imm*nit) ranted to A2B officers and personne#
RATIO
Mi he## -s( S*#tan of Gohore W :ope9 The fifth case, that of Mi he## - S*#tan of Gohore in 5F6= dea#s with a woman who fe## *nder another !ind of spe##, for which there was no #e a# redress( A man she had met in hi h societ), who appeared ent#eman#), wea#th) and p#a*si"#e, and who ca##ed himse#f A#"ert Ba!er, promised her marria e( He promised marria e to her and then rene ed on the promise, so she s*ed him, #i!e %o##) Frost in a rather different socia# mi#ie*, for "reach of promise( The case came on for hearin in the Co*rt of Appea# on &o-em"er I8, 5F6L( The case a ain attracted a wea#th of #e a# ta#ent: :ord 'sher, Master of the Ro##s, and :ords G*stices :opes and Va)( Apparent#) Miss Mi he## !new a#read) that her fiancQ was not A#"ert Ba!er: this was a not -er) ima inati-e pse*don)m for A"* Ba!r, His Serene Hi hness the S*#tan of Gohore( The case
re-ea#ed his secret #ife in the hi h societ) of :ondon, a #on wa) a"sent from his !in dom in the Ma#a) Straits( The stat*s of the defendant was important( Miss Mi he##(s ar *ment was that he had ori ina##) presented himse#f as a pri-ate indi-id*a# and a s*"3ect of the Y*een( This pointed *p of co*rse the d*a#it) of a so-erei n(s stat*s- that the) are "oth p*"#ic and pri-ate persona#ities( A distinction was drawn "etween pri-ate transactions and matters of so-erei n a*thorit)( Had A"* Ba!r, +who dec#ined to appear in co*rt, #ost this pri-i#e e of dip#omatic imm*nit) ") his deceitJ An independent so-erei n is entit#ed to imm*nit) from 3*risdiction, *n#ess he wai-es this pri-i#e e, which A"* Ba!r was not oin to do( 2id his cond*ct amo*nt to wai-erJ %ersisted the #aw)ers for Miss Mi he##( &o, it m*st "e an acti-e wai-er was the *ncompromisin answer( U#timate#), po#itica# considerations and a endas often decide the da)( In 5F6= the British Go-ernment was *nwi##in to offend a friend#) forei n potentate to appease a pri-ate indi-id*a#( In this sense, Miss Mi he## was a -ictim of state po#ic), "*t the pec*#iar nat*re of "reach of promise a#so meant she was a -ictim "eca*se she was a woman( Min*cher -s( CA W Mendio#a Facts: Min*cher is an Iranian nationa#( He came to the %hi#ippines to st*d) in the Uni-ersit) of the %hi#ippines in 568=( In 568B, *nder the re ime of the Shah of Iran, he was appointed :a"or AttachQ for the Iranian 'm"assies in To!)o, Gapan and Mani#a, %hi#ippines( /hen the Shah of Iran was deposed ") A)ato##ah Vhomeini, he "ecame a ref* ee of the United &ations and contin*ed to sta) in the %hi#ippines( Min*cher was introd*ced to Sca#9o, who was an informer of the Inte##i ence Unit of the mi#itar)( $n se-era# occasions, Min*cher and Sca#9o entered into contracts of sa#e wherein Sca#9o "o* ht ca-iar, r* s, etc( from Min*cher( Min*cher e4pressed his desire to ac?*ire a US >isa( Sca#9o to#d Min*cher that he can he#p him in e4chan e for XI!( $ne da), Sca#9o came "ac! a ain to p#aintiff@s ho*se and direct#) proceeded to the #atter@s "edroom, where the #atter and his co*ntr)man, A""as Tora"ian, were p#a)in chess( Min*cher opened his safe in the "edroom and o"tained XI,777(77 from it, a-e it to the defendant for the #atter@s fee in o"tainin a -isa for p#aintiff@s wife( The defendant to#d him that he wo*#d "e #ea-in the %hi#ippines -er) soon and re?*ested him to come o*t of the ho*se for a whi#e so that he can introd*ce him to his co*sin waitin in a ca"( /itho*t m*ch ado, and witho*t p*ttin on his shirt as he was on#) in his pa3ama pants, he fo##owed the defendant where he saw a par!ed ca" opposite the street( To his comp#ete s*rprise, an American 3*mped o*t of the ca" with a drawn hi h-powered *n( He was in the compan) of a"o*t L7 to =7 Fi#ipino so#diers with B Americans, a## armed( He was handc*ffed and after a"o*t I7 min*tes in the street, he was "ro* ht inside the ho*se ") the defendant( He was made to sit down whi#e in handc*ffs whi#e the defendant was inside his "edroom( ( He as!ed for an) warrant, "*t the defendant to#d him to Zsh*t *p(1 He was ne-erthe#ess to#d that he wo*#d "e a"#e to ca## for his #aw)er who can defend him( As a res*#t of the search, the a ents fo*nd heroin inside the ho*se of Min*cher(
Min*cher fi#ed a comp#aint a ainst Sca#9o( The #ower co*rt ad3*d ed Sca#9o to "e #ia"#e to pa) Min*cher dama es( Howe-er, the CA re-ersed sa)in that Sca#9o is a"so#*te#) imm*ne "eca*se he is c#othed with dip#omatic imm*nit) ") -irt*e of the >ienna con-ention( Min*cher fi#es this appea#( Sti##, Sca#9o sti## c#aims that he ma) not "e proceeded a ainst ") Min*cher, "eca*se he is an a ent of the US 2r* s 'nforcement A enc)( Sca#9o, in fact, s*"mitted se-era# doc*ments showin that the %hi#ippines, thro* h the 2FA, reco ni9ed his stat*s as a person with dip#omatic imm*nit)( Iss*e: /A& Sca#9o has dip#omatic imm*nit)( He#d: Sca#9o has imm*nit)( The main )ardstic! in ascertainin whether a person is a dip#omat entit#ed to imm*nit) is the determination of whether or not he performs d*ties of dip#omatic nat*re( A#so, -estin a person with dip#omatic imm*nit) is a prero ati-e of the e4ec*ti-e "ranch of the o-ernment( The consent or imprimatur of the %hi#ippine o-ernment to the acti-ities of the United States 2r* 'nforcement A enc), can "e #eaned from the facts mentioned( The officia# e4chan es of comm*nication "etween a encies of the o-ernment of the two co*ntries, certifications from officia#s of "oth the %hi#ippine 2epartment of Forei n Affairs and the United States 'm"ass), as we## as the participation of mem"ers of the %hi#ippine &arcotics Command in the C"*)-"*st operationE cond*cted at the residence of Min*cher at the "ehest of Sca#9o, ma) "e inade?*ate to s*pport the ;dip#omatic stat*s; of the #atter "*t the) i-e eno* h indication that the %hi#ippine o-ernment has i-en its imprimatur, if not consent, to the acti-ities within %hi#ippine territor) of a ent Sca#9o of the United States 2r* 'nforcement A enc)( The 3o" description of Sca#9o has tas!ed him to cond*ct s*r-ei##ance on s*spected dr* s*pp#iers and, after ha-in ascertained the tar et, to inform #oca# #aw enforcers who wo*#d then "e e4pected to ma!e the arrest( In cond*ctin s*r-ei##ance acti-ities on Min*cher, #ater actin as the pose*r-"*)er d*rin the "*)-"*st operation, and then "ecomin a principa# witness in the crimina# case a ainst Min*cher, Sca#9o hard#) can "e said to ha-e acted "e)ond the scope of his officia# f*nction or d*ties( A## to#d, this Co*rt is constrained to r*#e that respondent Arth*r Sca#9o, an a ent of the United States 2r* 'nforcement A enc) a##owed ") the %hi#ippine o-ernment to cond*ct acti-ities in the co*ntr) to he#p contain the pro"#em on the dr* traffic, is entit#ed to the defense of state imm*nit) from s*it( &(B( It mi ht "e reca##ed that the pri-i#e e is not an imm*nit) from the o"ser-ance of the #aw of the territoria# so-erei n or from ens*in #e a# #ia"i#it)< it is, rather, an imm*nit) from the e4ercise of territoria# 3*risdiction Fisheries Case W Morada &*c#ear Tests Case +A*stra#iaA&ew Tea#and -s( France, W Ri-as
Ca##ado -s( Internationa# Rice Research Instit*te W Sarenas Facts: 'rnesto Ca##ado was emp#o)ed as a dri-er at the IRRI from Apri# 56FL - 2ec( 5667( $n Fe"( 5667, Ca##ado ot into an accident whi#e on an officia# trip to the &AIA( The in-esti ation ") the HR2 of IRRI fo*nd Ca##ado to ha-e "een dri-in *nder the inf#*ence of #i?*or( Ca##ado s*"mitted an answer and defenses( IRRI terminated the ser-ices of Ca##ado( Ca##ado fi#ed an i##e a# dismissa# case a ainst IRRI "efore the :a"or Ar"iter( IRRI in-o!ed imm*nit) from s*it "efore the :a"or Ar"iter( The :a"or Ar"iter too! notice of the contention of IRRI "*t sti## contin*ed with the case( The :a"or Ar"iter maintains that in a## cases of termination, IRRI wai-es its imm*nit)( &:RC re-ersed the decision of the :a"or Ar"iter and dismissed the case( Iss*e: /A& IRRI has wai-ed its imm*nit) from s*it in a disp*te which arose from an emp#o)eremp#o)ee re#ationship He#d: &$U Under %2 5BI7 +Act Grantin to IRRI the pri-i#e es of an internationa# or ani9ation,, the Instit*te sha## en3o) imm*nit) from an) pena#, ci-i# and administrati-e proceedin s( The rant of imm*nit) to IRRI is c#ear and *ne?*i-oca# and an e4press wai-er ") its 2irector-Genera# is the on#) wa) which it ma) re#in?*ish or a"andon this imm*nit)( Tho* h there is a memo re ardin *ide#ines to imp#ementation of %2 5BI7, the memo cannot "e considered as the e4press wai-er ") the 2irector Genera#( It is mere#) an interna# memo( Accordin to the Memo: in cases in-o#-in dismissa# of emp#o)ees, the Instit*te ma) wai-e its imm*nit), si nif)in that s*ch wai-er is discretionar) on its part( I:$ W Anastacio /H$ -s( A?*ino W Beron Chor9ow Factor) +German) -s( %o#and, W Ca#inisan +from SC Tan?*i#it fi#es, 1oland expropriated a factory at Chorzo , contrary to the Gene$a Con$ention of *+77 bet een Germany and 1oland" Germany filed a claim for damages against 1oland caused by the illegal expropriation" HELD: 8he essential principle contained in the notion of an illegal act is that reparation must, as far as possible, ipe out all the conse!uences of the illegal act and re-establish the situation hich ould, in all probability, ha$e existed if that act had not been committed" )estitution in
kind, or if this is not possible, payment of a sum corresponding to the $alue hich a restitution in kind ould bear9 the a ard, if need be, of damages for loss sustained hich ould not be co$ered by restitution in kind or payment in place of it : such are the principles hich should ser$e to determine the amount of compensation due for an act contrary to international la " .n this case, the obligation of 1oland is to restore the factory and, if this be not possible, to pay its $alue at the time of the indemnification, hich $alue is designed to take the place of restitution hich has become impossible" .n addition, 1oland must pay the compensating loss sustained as a result of the seizure" Ma-rommatis %a#estine Concessions W Fernande9 Facts: The Go-ernment of the Gree! Rep*"#ic comes "efore the %ermanent Co*rt of Internationa# G*stice +%CIG, "eca*se of the a##e ed ref*sa# on the part of the Go-ernment of %a#estine, and on the part of Britain1s o-ernment to reco ni9e to their f*## e4tent the ri hts ac?*ired ") M( Ma-rommatis +a Gree!, *nder contracts and a reements conc#*ded ") him with the $ttoman a*thorities in re ard to concessions for certain p*"#ic wor!s to "e constr*cted in %a#estine( These inc#*de e#ectric tramwa) s)stems and s*pp#) of power and water in Ger*sa#em, Gaffa, and '#-Hod3a( The Gree! Rep*"#ic as!s that the British o-ernment, as Mandator) for %a#estine, "e ordered to pa) compensation to Ma-rommatis for the pro3ects in Ger*sa#em and Gaffa( The British o-ernment ?*estioned the 3*risdiction of the Co*rt( It raised, as a defense, that accordin to the pro-isions of the Mandate for %a#estine, the %CIG wi## on#) ha-e 3*risdiction if the disp*te is "etween the Mandator) +in this case Britain, and another mem"er of the :ea *e of &ations +in this case Greece,( Accordin to Britain, the case is not of s*ch nat*re( Iss*e: /hether the case is a disp*te "etween I States so as to -est the %CIG with 3*risdictionJ He#d: .es( It is tr*e that the disp*te was at first "etween a pri-ate person +Ma-rommatis, and a State +Britain,( B*t the Gree! Go-ernment s*"se?*ent#) too! *p the case( The case, then, entered into a new phase: it "ecame a disp*te "etween two States and is co-ered ") internationa# #aw( Referrin to the Mandate of %a#estine, the case is *ndo*"ted#) "etween a Mandator) +Britain, and another mem"er of the :ea *e of &ations +Greece,( /hen Greece too! the case of one of its s*"3ects and resorted to dip#omatic action or internationa# 3*dicia# proceedin s on that person1s "eha#f, a State is in rea#it) assertin its own ri hts( Tho* h the present disp*te ori inated in an in3*r) to a pri-ate interest, s*ch is irre#e-ant now( The fact that the opposin parties are States is s*fficient to comp#) with the %a#estinian Mandate( Bein si nator) to his Mandate, Britain has i-en consent to the %CIG1s 3*risdiction(
The Co*rt1s decision dismissed Britain1s o"3ection with respect to the c#aims in Ger*sa#em( B*t *phe#d the o"3ection as to the c#aims in Gaffa( The co*rt said that the c#aims in Gaffa were not s*"3ect of the Mandate of %a#estine with which Britain s*"mitted 3*risdiction( &eer Case W Gana Ro"erts Case W :ope9 Tafiro Case W Mendio#a Te4aco W Morada

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Isse: He#d: Isse: He#d: Isse: He#d: Isse: He#d:

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