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1.

ASYLUM CASE (SUMMARY)

Name of the Case: Asylum Case (Columbia/Peru); Year of the decision: 1950; and Court:
ICJ.

Overview:

Columbia granted asylum to a Peruvian, accused of taking part in a military rebellion in


Peru. Was Columbia entitled to make a unilateral and definitive qualification of the
offence (as a political offence) in a manner binding on Peru and was Peru was under a
legal obligation to provide safe passage for the Peruvian to leave Peru?

Facts of the Case:

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

Questions before the Court:

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

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

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

The Courts Decision:

Relevant Findings of the Court:

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

1. The court stated that in the normal course of granting diplomatic asylum a diplomatic
representative has the competence to make a provisional qualification of the offence (for
example, as a political offence) and the territorial State has the right to give consent to
this qualification. In the Torres case, Colombia has asserted, as the State granting
asylum, that it is competent to qualify the nature of the offence in a unilateral and
definitive manner that is binding on Peru. The court had to decide if such a decision was
binding on Peru either because of treaty law (in particular the Havana Convention of
1928 and the Montevideo Convention of 1933), other principles of international law or by
way of regional or local custom.

2. The court held that there was no expressed or implied right of unilateral and definitive
qualification of the State that grants asylum under the Havana Convention or relevant
principles of international law (p. 12, 13). The Montevideo Convention of 1933, which
accepts the right of unilateral qualification, and on which Colombia relied to justify its
unilateral qualification, was not ratified by Peru. The Convention, per say, was not
binding on Peru and considering the low numbers of ratifications the provisions of the
latter Convention cannot be said to reflect customary international law (p. 15).

3. Colombia also argued that regional or local customs support the qualification. The
court held that the burden of proof on the existence of an alleged customary law rests
with the party making the allegation:

The Party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other Party (that) it is
in accordance with a (1) constant and uniform usage (2) practiced by the States in
question, and that this usage is (3) the expression of a right appertaining to the State
granting asylum (Columbia) and (4) a duty incumbent on the territorial State (in this
case, Peru). This follows from Article 38 of the Statute of the Court, which refers to
international custom as evidence of a general practice accepted as law(text in brackets
added).

4. The court held that Columbia did not establish the existence of a regional custom
because it failed to prove consistent and uniform usage of the alleged custom by
relevant States. The fluctuations and contradictions in State practice did not allow for the
uniform usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98, the legal
impact of fluctuations of State practice). The court also reiterated that the fact that a
particular State practice was followed because of political expediency and not because of
a belief that the said practice is binding on the State by way of a legal obligation (opinio
juris) is detrimental to the formation of a customary law (see North Sea Continental Shelf
Cases and Lotus Case for more on opinio juris):

[T]he Colombian Government has referred to a large number of particular cases in


which diplomatic asylum was in fact granted and respected. But it has not shown that
the alleged rule of unilateral and definitive qualification was invoked or that it was,
apart from conventional stipulations, exercised by the States granting asylum as a right
appertaining to them and respected by the territorial States as a duty incumbent on
them and not merely for reasons of political expediency. The facts brought to the
knowledge of the Court disclose so much uncertainty and contradiction, so much
fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views
expressed on various occasions, there has been so much inconsistency in the rapid
succession of conventions on asylum, ratified by some States and rejected by others,
and the practice has been so much influenced by considerations of political expediency
in the various cases, that it is not possible to discern in all this any constant and uniform
usage, mutually accepted as law, with regard to the alleged rule of unilateral and
definitive qualification of the offence.

5. The court held that even if Colombia could prove that such a regional custom existed,
it would not be binding on Peru, because Peru far from having by its attitude adhered to
it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo
Conventions of 1933 and 1939, which were the first to include a rule concerning the
qualification of the offence [as political in nature] in matters of diplomatic asylum.
(See in this regard, the lesson on persistent objectors. Similarly in the North Sea
Continental Shelf Cases the court held in any event the . . . rule would appear to be
inapplicable as against Norway in as much as she had always opposed any attempt to
apply it to the Norwegian coast.)

6. The court concluded that Columbia, as the State granting asylum, is not competent to
qualify the offence by a unilateral and definitive decision, binding on Peru.

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of
safe passage?
7. The court held that there was no legal obligation on Peru to grant safe passage either
because of the Havana Convention or customary law. In the case of the Havana
Convention, a plain reading of Article 2 results in an obligation on the territorial state
(Peru) to grant safe passage only after it requests the asylum granting State (Columbia)
to send the person granted asylum outside its national territory (Peru). In this case the
Peruvian government had not asked that Torre leave Peru. On the contrary, it contested
the legality of asylum granted to him and refused to grant safe conduct.

8. The court looked at the possibility of a customary law emerging from State practice
where diplomatic agents have requested and been granted safe passage for asylum
seekers, before the territorial State could request for his departure. Once more, the court
held that these practices were a result of a need for expediency and other practice
considerations over an existence of a belief that the act amounts to a legal obligation
(see paragraph 4 above).

There exists undoubtedly a practice whereby the diplomatic representative who grants
asylum immediately requests a safe conduct without awaiting a request from the
territorial state for the departure of the refugeebut this practice does not and cannot
mean that the State, to whom such a request for safe-conduct has been addressed, is
legally bound to accede to it.

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

9. Article 1 of the Havana Convention states that It is not permissible for States to grant
asylum to persons accused or condemned for common crimes (such persons) shall
be surrendered upon request of the local government.

10. In other words, the person-seeking asylum must not be accused of a common crime
(for example, murder would constitute a common crime, while a political offence would
not).The accusations that are relevant are those made before the granting of
asylum. Torres accusation related to a military rebellion, which the court concluded was
not a common crime and as such the granting of asylum complied with Article 1 of the
Convention.

11. Article 2 (2) of the Havana Convention states that Asylum granted to political
offenders in legations, warships, military camps or military aircraft, shall be respected to
the extent in which allowed, as a right or through humanitarian toleration, by the usages,
the conventions or the laws of the country in which granted and in accordance with the
following provisions: First: Asylum may not be granted except in urgent cases and for the
period of time strictly indispensable for the person who has sought asylum to ensure in
some other way his safety.

12. An essential pre-requisite for the granting of asylum is the urgency or, in other words,
the presence of an imminent or persistence of a danger for the person of the refugee.
The court held that the facts of the case, including the 3 months that passed
between the rebellion and the time when asylum was sought, did not establish the
urgency criteria in this case (pp. 20 -23). The court held:

In principle, it is inconceivable that the Havana Convention could have intended the
term urgent cases to include the danger of regular prosecution to which the citizens of
any country lay themselves open by attacking the institutions of that country In
principle, asylum cannot be opposed to the operation of justice.

13. In other words, Torre was accused of a crime but he could not be tried in a court
because Colombia granted him asylum. The court held that protection from the
operation of regular legal proceedings was not justified under diplomatic asylum.
14. The court held:

In the case of diplomatic asylum the refugee is within the territory of the State. A
decision to grant diplomatic asylum involves a derogation from the sovereignty of that
State. It withdraws the offender from the jurisdiction of the territorial State and
constitutes an intervention in matters which are exclusively within the competence of
that State. Such a derogation from territorial sovereignty cannot be recognised unless its
legal basis is established in each particular case.

15. As a result, exceptions to this rule are strictly regulated under international law.

An exception to this rule (asylum should not be granted to those facing regular
prosecutions) can occur only if, in the guise of justice, arbitrary action is substituted for
the rule of law. Such would be the case if the administration of justice were corrupted by
measures clearly prompted by political aims. Asylum protects the political offender
against any measures of a manifestly extra-legal character which a Government might
take or attempt to take against its political opponents On the other hand, the safety
which arises out of asylum cannot be construed as a protection against the regular
application of the laws and against the jurisdiction of legally constituted tribunals.
Protection thus understood would authorize the diplomatic agent to obstruct the
application of the laws of the country whereas it is his duty to respect them Such a
conception, moreover, would come into conflict with one of the most firmly established
traditions of Latin-America, namely, non-intervention [for example, by Colombia into the
internal affairs of another State like Peru].

16. Asylum may be granted on humanitarian grounds to protect political prisoners


against the violent and disorderly action of irresponsible sections of the population. (for
example during a mob attack where the territorial State is unable to protect the
offender). Torre was not in such a situation at the time when he sought refuge in the
Colombian Embassy at Lima.

17. The court concluded that the grant of asylum and reasons for its prolongation were
not in conformity with Article 2(2) of the Havana Convention (p. 25).

The grant of asylum is not an instantaneous act which terminates with the admission, at
a given moment of a refugee to an embassy or a legation. Any grant of asylum results in,
and in consequence, logically implies, a state of protection, the asylum is granted as long
as the continued presence of the refugee in the embassy prolongs this protection.

NB: The court also discussed the difference between extradition and granting of asylum
you can read more on this in pp. 12 13 of the judgment. The discussions on the
admissibility of the counter claim of Peru are set out in pp. 18 19.
2. LOTUS CASE (SUMMARY)

Name of the Case: The Lotus Case (France vs Turkey); Year of the decision: 1927; and
Court: PCIJ.

Overview: A collision occurred on the high seas between a French vessel and a Turkish
vessel. Victims were Turkish nationals and the alleged offender was French.
Could Turkey exercise its jurisdiction over the French national under international law?

Facts of the Case:

A collision occurred on the high seas between a French vessel Lotus and a Turkish
vessel Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the
Turkish vessel. The 10 survivors of the Boz-Kourt (including its captain) were taken to
Turkey on board the Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the
captain of the Turkish ship were charged with manslaughter. Demons, a French national,
was sentenced to 80 days of imprisonment and a fine. The French government protested,
demanding the release of Demons or the transfer of his case to the French Courts. Turkey
and France agreed to refer this dispute on the jurisdiction to the Permanent Court of
International Justice (PCIJ).

Questions before the Court:

Did Turkey violate international law when Turkish courts exercised jurisdiction over a
crime committed by a French national, outside Turkey? If yes, should Turkey pay
compensation to France?

The Courts Decision:

Turkey, by instituting criminal proceedings against Demons, did not violate international
law.

Relevant Findings of the Court:

Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an
existing rule of international law or is the mere absence of a prohibition preventing the
exercise of jurisdiction enough?

The first principle of the Lotus case said that jurisdiction is territorial: A State cannot
exercise its jurisdiction outside its territory unless an international treaty or customary
law permits it to do so. This is what we called the first Lotus Principle.

Now the first and foremost restriction imposed by international law upon a State is that
failing the existence of a permissive rule to the contrary it may not exercise its power
in any form in the territory of another State. In this sense jurisdiction is certainly
territorial; it cannot be exercised by a State outside its territory except by virtue of a
permissive rule derived from international custom or from a convention. (para 45)

The second principle of the Lotus case: Within its territory, a State may exercise its
jurisdiction, on any matter, even if there is no specific rule of international law permitting
it to do so. In these instances, States have a wide measure of discretion, which is only
limited by the prohibitive rules of international law.

It does not, however, follow that international law prohibits a State from exercising
jurisdiction in its own territory, in respect of any case which relates to acts which have
taken place abroad, and in which it cannot rely on some permissive rule of international
law. Such a view would only be tenable if international law contained a general
prohibition to States to extend the application of their laws and the jurisdiction of their
courts to persons, property and acts outside their territory, and if, as an exception to this
general prohibition, it allowed States to do so in certain specific cases. But this is
certainly not the case under international law as it stands at present. Far from laying
down a general prohibition to the effect that States may not extend the application
of their laws and the jurisdiction of their courts to persons, property and acts outside
their territory, it leaves them in this respect a wide measure of discretion, which is only
limited in certain cases by prohibitive rules; as regards other cases, every State remains
free to adopt the principles which it regards as best and most suitable. This discretion left
to States by international law explains the great variety of rules which they have been
able to adopt without objections or complaints on the part of other States In these
circumstances all that can be required of a State is that it should not overstep the limits
which international law places upon its jurisdiction; within these limits, its title to exercise
jurisdiction rests in its sovereignty. (paras 46 and 47)

This applied to civil and criminal cases. If the existence of a specific rule was a pre-
requisite to exercise jurisdiction, PCIJ argued, then it wouldin many cases result in
paralysing the action of the courts, owing to the impossibility of citing a universally
accepted rule on which to support the exercise of their [States] jurisdiction (para 48).

The PCIJ based this finding on the sovereign will of States.

International law governs relations between independent States. The rules of law
binding upon States therefor emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of law and
established in order to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims. Restrictions upon the
independence of States cannot therefore be presumed

[NB: This was one of the more debated aspects of the judgement. Some argued that the
Court placed too much emphasis on sovereignty and consent of States (i.e. took a strong
positivist view)].

Criminal Jurisdiction: Territorial Jurisdiction

France alleged that the flag State of a vessel would have exclusive jurisdiction over
offences committed on board the ship in high seas. The PCIJ disagreed. It held that
France, as the flag State, did not enjoy exclusive territorial jurisdiction in the high seas in
respect of a collision with a vessel carrying the flag of another State (paras 71 84). The
Court held that Turkey and France both have jurisdiction in respect of the whole incident:
i.e. there is concurrent jurisdiction.

The PCIJ held that a ship in the high seas is assimilated to the territory of the flag State.
This State may exercise its jurisdiction over the ship, in the same way as it exercises its
jurisdiction over its land, to the exclusion of all other States. In this case, the Court
equated the Turkish vessel to Turkish territory. In this case, the PCIJ held that the
offence produced its effects on the Turkish vessel and consequently in a place
assimilated to Turkish territory in which the application of Turkish criminal law cannot be
challenged, even in regard to offences committed there by foreigners. Turkey had
jurisdiction over this case.

If, therefore, a guilty act committed on the high seas produces its effects on a vessel
flying another flag or in foreign territory, the same principles must be applied as if the
territories of two different States were concerned, and the conclusion must therefore be
drawn that there is no rule of international law prohibiting the State to which the ship on
which the effects of the offence have taken place belongs, from regarding the offence as
having been committed in its territory and prosecuting, accordingly, the delinquent.

The Lotus Case was also significant in that the PCIJ said that a State would have
territorial jurisdiction, even if the crime was committed outside its territory, so long as a
constitutive element of the crime was committed in that State. Today, we call this
subjective territorial jurisdiction. In order for subjective territorial jurisdiction to be
established, one must prove that the element of the crime and the actual crime are
entirely inseparable; i.e., if the constituent element was absent the crime would not
have happened.

The offence for which Lieutenant Demons appears to have been prosecuted was an act
of negligence or imprudence having its origin on board the Lotus, whilst its effects
made themselves felt on board the Boz-Kourt. These two elements are, legally, entirely
inseparable, so much so that their separation renders the offence non-existent It is only
natural that each should be able to exercise jurisdiction and to do so in respect of the
incident as a whole. It is therefore a case of concurrent jurisdiction.

Customary International Law

The Lotus case gives an important dictum on creating customary international law.
France alleged that jurisdictional questions on collision cases are rarely heard in criminal
cases because States tend to prosecute only before the flag State. France argued that
this absence of prosecutions points to a positive rule in customary
law on collisions.The Court held that this would merely show that States had often, in
practice, abstained from instituting criminal proceedings, and not that they recognized
themselves as being obliged to do so; for only if such abstention were based on their
being conscious of having a duty to abstain would it be possible to speak of an
international custom. The alleged fact does not allow one to infer that States have been
conscious of having such a duty; on the other hand, as will presently be seen, there are
other circumstances calculated to show that the contrary is true. In other words,
opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case) in
so far as those acts or omissions are done following a belief that the said State is
obligated by law to act or refrain from acting in a particular way. (For more on opinio
juris click here)

Subsequent ICJ Decisions and Separate Opinions That Referred to Principles of


the Lotus Case

1. Advisory Opinion on the Unilateral Declaration of Kosovo (2010)


In the Kosovo Advisory Opinion the Court had to decide if the unilateral declaration of
Kosovo of February 2008 was in accordance with international law. The Court inquired
and concluded that the applicable international law did not prohibit an unilateral
declaration of independence. Based on this finding, the Court decided that the adoption
of the declaration of independence did not violate any applicable rule of international
law.

Judge Simma disagrees, inter alia, with Courts methodology in arriving at this
conclusion. He imputes the method to the principle established in the Lotus case: that
which is not prohibited is permitted under international law. He criticises the Lotus
dictum as an out dated, 19th century positivist approach that is excessively differential
towards State consent. He says that the Court should have considered the possibility that
international law can be deliberately neutral or silent on the international lawfulness of
certain acts. Instead of concluding that an the absence of prohibition ipso facto meant
that a unilateral declaration of independence is permitted under international law, the
court should have inquired whether under certain conditions international law permits or
tolerates unilateral declarations of independence.

n the Kosovo Advisory Opinion the ICJ had to decide if the unilateral declaration of Kosovo
of February 2008 was in accordance with international law. The Court inquired and
concluded that the applicable international law did not prohibit an unilateral declaration
of independence. Based exclusively on this finding of a lack of prohibition, the Court
decided that the adoption of the declaration of independence did not violate any
applicable rule of international law.

Judge Simma in his declaration on the Kosovo Advisory Opinion disagreed, inter alia, with
Courts methodology in arriving at this conclusion. He imputed it to the principle
established in the Lotus case: that which is not prohibited is permitted under
international law.

Simma questioned the wisdom of the ICJs continued reliance of the dictum of
the Lotus case that restrictions on the independence of States cannot be presumed
because of the consensual nature of the international legal order. Simma argued that
this strict binary approach of what is not prohibited is permitted stems from an out
dated, 19th century positivist approach that is excessively differential towards State
consent. Simma criticised that in determining if the unilateral declaration was in
accordance with applicable international law, the court:

(1) Equated an absence of a prohibition with the existence of a permissive rule it held
that what is not prohibited is ipso facto permitted.

(2) Did not search for permissive rules i.e. the court did not assess if unilateral
declarations of independence could be tolerated or permitted under international law in
certain circumstances. He said:

The relevance of self-determination and/or remedial secession remains an important


question in terms of resolving the broader dispute in Kosovo and in comprehensively
addressing all aspects of the accordance with international law of the declaration of
independenceIn this light, I believe that the General Assemblys request deserves a
more comprehensive answer, assessing both permissive and prohibitive rules of
international law.. To treat these questions more extensively would have demonstrated
the Courts awareness of the present architecture of international law (paras 5 -7).
(3) Did not consider the possibility that international law can be deliberately neutral or
silent on the international lawfulness of certain acts. Simma argued that the court did not
consider the possibility that an act might be tolerated. Tolerated does not mean that the
act is legal, but rather that it is not illegal. For the court, argued Simma, everything
which is not expressly prohibited carries with it the same color of legality; it ignores the
possible degrees of non-prohibition, ranging from tolerated to permissible to
desirable Simma did not give examples of areas of neutrality of international law. He
criticised the Courts refusal to do so as follows:

In this sense, I am concerned that the narrowness of the Courts approach might
constitute a weakness, going forward, in its ability to deal with the great shades of
nuance that permeate international law. Furthermore, that the international legal order
might be consciously silent or neutral on a specific fact or act has nothing to do with non
liquet, which concerns a judicial institution being unable to pronounce itself on a point of
law because it concludes that the law is not clear. The neutrality of international law on a
certain point simply suggests that there are areas where international law has not yet
come to regulate, or indeed, will never come to regulate. There would be no wider
conceptual problem relating to the coherence of the international legal order (para 9).
3. Kuroda vs Jalandoni 83 Phil 171
Facts
Shinegori Kuroda, a former Lieutenant-General of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in the Philippines was charged before the Philippine Military
Commission for war crimes. As he was the commanding general during such period of war, he was
tried for failure to discharge his duties and permitting the brutal atrocities and other high crimes
committed by his men against noncombatant civilians and prisoners of the Japanese forces, in
violation of of the laws and customs of war.
Kuroda, in his petition, argues that the Military Commission is not a valid court because the law that
created it, Executive Order No. 68, is unconstitutional. He further contends that using as basis the
Hague Conventions Rules and Regulations covering Land Warfare for the war crime committed
cannot stand ground as the Philippines was not a signatory of such rules in such convention.
Furthermore, he alleges that the United States is not a party of interest in the case and that the two
US prosecutors cannot practice law in the Philippines.

Issue
1.Whether or not Executive Order No. 68 is constitutional
2.Whether or not the US is a party of interest to this case

Ruling
The Supreme Court ruled that Executive Order No. 68, creating the National War Crimes Office and
prescribing rules on the trial of accused war criminals, is constitutional as it is aligned with Sec
3,Article 2 of the Constitution which states that The Philippines renounces war as an instrument of
national policy and adopts the generally accepted principles of international law as part of the law of
the nation. The generally accepted principles of international law includes those formed during the
Hague Convention, the Geneva Convention and other international jurisprudence established by
United Nations. These include the principle that all persons, military or civilian, who have been guilty
of planning, preparing or waging a war of aggression and of the commission of crimes and offenses in
violation of laws and customs of war, are to be held accountable. In the doctrine of incorporation, the
Philippines abides by these principles and therefore has a right to try persons that commit such
crimes and most especially when it is committed againsts its citizens. It abides with it even if it was not
a signatory to these conventions by the mere incorporation of such principles in the constitution.
The United States is a party of interest because the country and its people have been equally, if not
more greatly, aggrieved by the crimes with which the petitioner is charged for. By virtue of Executive
Order No. 68, the Military Commission is a special military tribunal and that the rules as to parties and
representation are not governed by the rules of court but by the very provisions of this special law.
4. TOMOYUKI YAMASHITA, petitioner,

vs.

WILHELM D. STYER, Commanding General, United States Army


Forces, Western Pacific, respondent.

Col. Harry E. Clarke and Lt. Col. Walter C. Hendrix for petitioner.

Maj. Robert M. Kerr for respondent.

Delgado, Dizon, Flores and Rodrigo appeared as amici curiae.

Facts:

Tomoyuki Yamashita was an erstwhile commanding general of the 14th army group of the
Japanese Imperial Army in the Philippines. He was charged before an American Military
Commission with the most monstrous crimes ever committed against the American and
Filipino peoples. Filed before the Court were petition for habeas corpus and prohibition
against Lt. Gen. Wilhelm D. Styer, Commanding General of the United States Army
Forces, Western Pacific. It was alleged that General Yamashita, after his surrender,
became a prisoner of war of the US but was later removed from such status and placed in
confinement as an accused charged for war crimes before an American Military
Commission constituted by respondent Lieutenant General Styer. Petitioner wanted to be
reinstated to his former status as prisoner of war, and that the Military Commission be
prohibited from further trying him.

Issues:

(1) That the Military Commission was not duly constituted, and, therefore, it is without
jurisdiction;

(2) That the Philippines cannot be considered as an occupied territory, and the Military
Commission cannot exercise jurisdiction therein;

(3) That Spain, the "protecting power" of Japan, has not been given notice of the
implementing trial against petitioner, contrary to the provisions of the Geneva
Convention of July 27, 1892, and therefore, the Military Commission has no jurisdiction to
try the petitioner;

(4) That there is against the petitioner no charge of an offense against the laws of war;
and

(5) That the rules of procedure and evidence under which the Military Commission
purports to be acting denied the petitioner a fair trial.
Held:

The Court deemed that petition for habeas corpus is untenable.

The relative difference as to the degree of confinement in such cases is a matter of


military measure, disciplinary in character, beyond the jurisdiction of civil courts.

Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The
military Commission is not made party respondent in this case, and although it may be
acting, as alleged, without jurisdiction, no order may be issued in these case proceedings
requiring it to refrain from trying the petitioner.

Constitutionality of the Military Commission

The Commission has been validly constituted by Lieutenant General Styer duly issued by
General Douglas MacArthur, Commander in Chief, United States Army Force Pacific, in
accordance in authority vested in him and with radio communication from the Joint Chiefs
of Staff.

Under paragraph 356 of the Rules of the Land Welfare a Military Commission for the trial
and punishment of the war criminals must be designated by the belligerent. And the
belligerent's representative in the present case is none other than the Commander in
Chief of the United States Army in the Pacific.

The Military Commission thus duly constituted has jurisdiction both over the person of
the petitioner and over the offenses with which he is charged. It has jurisdiction over the
person of the petitioner by reason of his having fallen into the hands of the United States
Army Forces. Under paragraph 347 of the Rules of the Land Warfare, "the commanders
ordering the commission of such acts, or under whose authority they are committed by
their troops, may be punished by the belligerent into whose hands they may fall."

As to the jurisdiction of the Military Commission over war crimes, the Supreme Court of
the United States said:

From the very beginning of its history this Court has recognized and applied the law of
war as including that part of the law of nations which prescribes, for the conduct of war,
the status rights and duties and of enemy nations as well as of enemy individuals. By the
Articles of War, and especially Article 15, Congress has explicitly provided, so far as it
may constitutionally do so, that military tribunals shall have jurisdiction to try offenders
or offenses against the law of war in appropriate cases. Congress, in addition to making
rules for the government of our Armed Forces, has thus exercised its authority to define
and punish offenses against the law of nations by sanctioning, within constitutional
limitations, the jurisdiction of military commissions to try persons and offenses which,
according to the rules and precepts of the law of nations, and more particularly the law of
war, are cognizable by such tribunals. (Ex parte Quirin, 317 U.S. 1, 27-28; 63 Sup. Ct., 2.)

Philippine jurisdiction to the case

Petitioner is charged before the Military Commission sitting at Manila with having
permitted members of his command "to commit brutal atrocities and other high crimes
against the people of the United States and of its allies and dependencies, particularly
the Philippines," crimes and atrocities which in the bills of particulars, are described as
massacre and extermination of thousand and thousands of unarmed noncombatant
civilians by cruel and brutal means, including bayoneting of children and raping of young
girls, as well as devastation and destruction of public, or private, and religious property
for no other motive than pillage and hatred. These are offenses against the laws of the
war as described in paragraph 347 of the Rules of Land Warfare.

It is maintained, however, that, according to the Regulations Governing the Trial of War
Criminals in the Pacific. "the Military Commission . . . shall have jurisdiction over all of
Japan and other areas occupied by the armed forces commanded by the Commander in
Chief, United States Army Forces, Pacific" (emphasis supplied), and the Philippines is not
an occupied territory. The American Forces have occupied the Philippines for the purpose
of liberating the Filipino people from the shackles of Japanese tyranny, and the creation
of a Military Commission for the trial and punishment of Japanese war criminals is an
incident of such war of liberation.

Third Issue Spain as protecting power of Japan

It is maintained that Spain, the "protecting power" of Japan, has not been given notice
before trial was begun against petitioner, contrary to the provisions of the Geneva
Convention of July 27, 1929. But there is nothing in that Convention showing that notice
is a prerequisite to the jurisdiction of Military Commissions appointed by victorious
belligerent. Upon the other hand, the unconditional surrender of Japan and her
acceptance of the terms of the Potsdam Ultimatum are a clear waiver of such a notice. It
may be stated, furthermore, that Spain has severed her diplomatic relation of Japan
because of atrocities committed by the Japanese troops against Spaniards in the
Philippines. Apparently, therefore, Spain has ceased to be the protecting power of Japan.

Dismissal of the petition

And, lastly, it is alleged that the rules of procedure and evidence being followed by the
Military Commission in the admission of allegedly immaterial or hearsay evidence,
cannot divest the commission of its jurisdiction and cannot be reviewed in a petition for
the habeas corpus. (25 Am. Jur., 218; Collins vs. McDonald, 258 U. S. 416; 66 Law. ed.,
692; 42 Sup. Ct., 326).

5. NICARAGUA VS UNITED STATES: AN ANALYSIS OF JURISPRUDENCE ON


CUSTOMARY INTERNATIONAL LAW

Case: Case Concerning the Military and Paramilitary Activities In and


Against Nicaragua (Nicaragua vs United States)

Year of Decision: 1986. Court: ICJ.

Overview: The case involved military and paramilitary activities conducted by, or with
the assistance of, the United States against Nicaragua from 1981 to 1984. Due to a
multilateral treaty reservation of the United States (hereinafter called the
Vandenberg reservation), the Court was compelled to base its findings only on customary
and general principles of international law. As a result, the Nicaragua case developed
significant jurisprudence on clarifying customary international law on the use of force
and non-intervention, elements necessary to form customary international law and the
relationship between the latter and treaty law. Controversial aspects of the decision
included the courts methodology used to determine that the principle of non-
intervention had attained customary law status, the courts reliance on UN resolutions as
a source of opinio juris and the courts reliance on multilateral treaties to determine
customary international law in face of the Vandenberg reservation.

Recommendation: The Nicaragua case contains in-depth discussions on the


relationship between treaty and customary international law. Students may wish to read
this post on the relationship before reading the synopsis of the case.

In the Nicaragua case, the ICJ discussed:

The competence of the ICJ to give its determination based on customary


international law in the face of the Vandenberg reservation of the United States.

The relationship between treaty law and customary international law.

Elements of customary international law.

The prohibition on the use of force as a jus cogens norm.

Customary international law status of the principle of non-intervention.

The competence of the ICJ to give its determination based on customary international law
1. The United States when accepting the compulsory jurisdiction of the ICJ (under Article
36(2) of the ICJ Statute) entered into the Vandenberg reservation. This reservation
barred the ICJ from using certain multilateral treaties in the adjudication of the dispute.

2. The United States held that this reservation barred the Court from determining the
case even on the basis of customary and general principles of international law because
customary law provisions, on which Nicaragua relied on, were identical to provisions in
treaties sought to be excluded. Because of the identical content, the United States
argued, treaty provisions supervene and subsume the parallel customary law provision
(see below).

3. The Court disagreed. It held that multilateral treaty reservations could not preclude the
Court from determining cases relying customary international law because the latter
exists independently of treaty law.

NB: The United States disagreed with the Courts determination to proceed with the case
and refused to participate further, including at the merits stage (see the declaration
made by the United States in this regard). Although the Court was barred from resorting
to multilateral treaties, it referred to the latter, including the UN Charter, to identify the
existence, nature and scope of various customary law principles.
Commentators criticised the Court for circumventing the multilateral reservation in this
manner.
Relationship between treaty law and customary international law
4. As we noted before, the United States argued that when customary international law
and treaty law contain the same content; the treaty law subsumes and supervenes
customary international law. In other words, the existence of principles in the United
Nations Charter precludes the possibility that similar rules might exist independently in
customary international law, either because existing customary rules had been
incorporated into the Charter, or because the Charter influenced the later adoption of
customary rules with a corresponding content (para 174).

5. In its response, the Court distinguished two situations:

(a) Situations where the customary law principles were identical to treaty provisions;
and

(b) Situations where customary law and treaty law rights and obligations differed in
respect of the same subject matter.

6. In situations where customary law principles were identical to treaty provisions


(reflected as (a) above), the Court, quite correctly, disagreed with the view of the United
States. It held that even if principles of customary international law are codified into
treaties, the former continues to exist side by side with the latter. For treaty parties, both
customary and treaty law apply and if, for some reason, the treaty ceases to apply the
identical customary law provision continues to apply between them unaffected (see more
on para 178).

7. The fact that customary international law exists alongside treaty law was an argument
brought by Norway and Denmark in the North Sea Continental Shelf Cases. In these
cases, the two countries having failed to attribute an obligation under Article 6 of the
Geneva Conventions of 1958 to Germany, sought to bind Germany via customary
international law. In this case the Court determined that Article 6 neither reflected
customary law at the time of the codification, nor had it attained that status at the time
of the determination. In the Nicaragua case, the Court relied on the North Sea
Continental Shelf Cases to support the assertion that principles of customary
international law can exist side by side with identical treaty law provisions and the latter
does not supervene the former in a manner where the former ceases to exist (para 177).

8. The Court also relied on Article 51 of the UN Charter to show that a treaty itself can
recognise the existence of customary international law on the same subject matter. The
term inherent in Article 51 recognised that customary law rights of self-defense existed
alongside treaty provisions.

9. Rules containing the same content could be treated differently in customary


international law and in treaty law. For example, treaty law may contain institutions or
mechanisms to ensure the effective implementation of its provisions, including those that
reflect customary law. One could take the Courts reading of Article 51 as an example. A
State that exercises the right of self-defence under Article 51, according to the UN
Charter, has an obligation to report the use of force immediately to the Security Council.
The Court held that this was a treaty requirement and one that did not exist under
customary law. Interestingly, although the failure to report did not result in a breach of
customary international law, the Court indicated that the United States failure to observe
this requirement contradicted her claim to be acting in self defence (see paras 200, 235).
10. The Court discussed situations where customary international law and treaty law
provisions were not identical (see point (b) above). For example, the Court referred to the
fact that concepts such and necessity and proportionality, or the definition of what
constitutes an armed attack, are not found under Article 51, or the UN Charter, but in
customary law. The Court concluded that (1) this proves that customary international law
continues to exist alongside treaty law and that (2) areas governed by the two sources of
law do not (always) overlap and the rules do not (always) have the same content.

the Charter, having itself recognized the existence of this right (inherent customary
law right of self-defence under A. 51 of the UN Charter), does not go on to regulate
directly all aspects of its content. For example, it does not contain any specific rule
whereby self-defence would warrant only measures which are proportional to the armed
attack and necessary to respond to it, a rule well established in customary international
law. Moreover, a definition of the armed attack which, if found to exist, authorises the
exercise of the inherent right of self-defence, is not provided in the Charter, and is not
part of treaty law. It cannot therefore be held that Article 51 is a provision which
subsumes and supervenes customary international law.

11. In case of a divergence between treaty law and customary international law, for the
parties to the treaty, amongst themselves, the treaty provisions apply as lex specialis.
The courts support for this principle can be found in paras 180 and 181. The Court, in
conclusion, explained the relationship between the UN Charter and customary
international law in the following manner:

However, so far from having constituted a marked departure from a customary


international law which still exists unmodified, the Charter gave expression in this field
(on the use of force and self defence) to principles already present in customary
international law, and that law has in the subsequent four decades developed under the
influence of the Charter, to such an extent that a number of rules contained in the
Charter have acquired a status independent of it. The essential consideration is that both
the Charter and the customary international law flow from a common fundamental
principle outlawing the use of force in international relations. The differences which may
exist between the specific content of each are not, in the Courts view, such as to cause a
judgment confined to the field of customary international law to be ineffective or
inappropriate (to the parties of the Charter who are bound by the Charter) (text in
brackets added)(para 181).

The relationship between customary international law and jus cogens


13. The court cited material presented by Nicaragua, the United States and the
International Law Commission to argue that the prohibition on the use of force contained
in Article 2(4) of the UN Charter has attained the status of a jus cogens norm. The Court
found this to be A further confirmation of the validity as customary international law of
the principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of
the Charter of the United Nations (para 190).

The necessary elements to determine the existence of customary international law


14. The Court, similar to the North Sea Continental Shelf Case, considered both the
subjective element (opinio juris) and the objective element (State practice) as essential
pre-requisites to the formation and elucidation of a customary international law norm
(para 207). The jurisprudence of the Nicaragua case contained an important clarification
inconsistent State practice does not affect the formation or continued existence of a
customary principle so long as the inconsistency is justified as a breach of the rule.

It is not to be expected that in the practice of States the application of the rules in
question should have been perfect, in the sense that States should have refrained, with
complete consistency, from the use of force or from intervention in each others internal
affairs.

The Court does not consider that, for a rule to be established as customary, the
corresponding practice must be in absolutely rigorous conformity with the rule. In order
to deduce the existence of customary rules, the Court deems it sufficient that the
conduct of States should, in general, be consistent with such rules, and that instances of
State conduct inconsistent with a given rule should generally have been treated as
breaches of that rule, not as indications of the recognition of a new rule.

If a State acts in a way prima facie incompatible with a recognized rule, but defends its
conduct by appealing to exceptions or justifications contained within the rule itself, then
whether or not the States conduct is in fact justifiable on that basis, the significance of
that attitude is to confirm rather than to weaken the rule. (para 186)

15. The Nicaragua jurisprudence explained how one could deduct opinio juris from acts of
State. The Court held that opinio juris could be deduced from:

the attitude of States towards certain General Assembly resolutions. For example, the
Declaration on Principles of International Law concerning Friendly Relations (hereafter
called the Declaration on Friendly Relations). The Court held that:

The effect of consent to the text of such resolutions cannot be understood as merely
that of a reiteration or elucidation of the treaty commitment undertaken in the Charter.
On the contrary, it may be understood as an acceptance of the validity of the rule or set
of rules declared by the resolution by themselvesIt would therefore seem apparent that
the attitude referred to expresses an opinio juris respecting such rule (or set of rules), to
be thenceforth treated separately from the provisions, especially those of an institutional
kind, to which it is subject on the treaty-law plane of the Charter

Statements by State representatives.

Obligations undertaken by participating States in international forums (the Court


provided the example of the Conference on Security and Co-operation in Europe,
Helsinki)

The International Law Commissions findings that a concept amounts to a customary


law principle.

Multilateral conventions.

NB: The fact that the Court relied on resolutions of the United Nations to deduct opinio
juris was subject to criticism. As you know, opinio juris is the subjective element
necessary to form customary law. Opinio juris is reflected in instances where the
State undertakes a particular practice because it believes that it is legally bound to do
so. Voting patterns in the United Nations are often guided by policy considerations over
legal merits. The General Assemblys subject matter is more policy oriented than legal
(for which we have the 6th Committee). For example, when the United States voted for
the Friendly Relations Declaration it stated on record its belief that the Declaration
was only a statement of political intention and not an expression of the law. This is not
to say that provisions on General Assembly Resolutions that guide the international
community to act in a certain way may not eventually become binding international law
(either by attaining customary law status or becoming codified into treaty law). It can, if
there is adequate State practice and opinio juris. The argument is that opinio juris cannot
be said to exist based merely on a vote in favour of a non-binding resolution in the
absence of an examination of subsequent consistent and general State practice (which,
in turn, reflects or confirms opinio juris).

Customary international law relating to principles of non-intervention


16. The Court held that Principles such as those of the non-use of force (para 191), non-
intervention (para 192), respect for the independence and territorial integrity of States,
right of collective self defence (para 193) and the freedom of navigation, continue to be
binding as part of customary international law, despite the operation of provisions of
conventional law in which they have been incorporated (text in brackets added).

17. The Courts finding that principle of non-intervention formed a part of customary
international law invited criticism from commentators, partly because they disagreed
that the principle formed customary international law and partly because of the Courts
own contradictions in coming to its conclusions and inadequacy of analysis (see below).
The Courts contradiction stems from this statement: The principle of non-intervention
involves the right of every sovereign State to conduct its affairs without outside
interference; though examples of trespass against this principle are not
infrequent, the Court considers that it is part and parcel of customary
international law(emphasis added. Para 202).

18. The Court began its analysis with two questions: Notwithstanding the multiplicity of
declarations by States accepting the principle of non-intervention, there remain two
questions: first, what is the exact content of the principle so accepted, and secondly, is
the practice sufficiently in conformity with it for this to be a rule of customary
international law? The first question was discussed in a previous post and will not be
discussed here.

18. Although the question seemed to direct the Court towards identifying an existing
custom, in its response the Court seemed to have already determined that the customary
law prohibition of non-intervention existed. In the following passage the Court deliberates
if, in contrast, a customary law right to intervention had evolved.

There have been in recent years a number of instances of foreign intervention for the
benefit of forces opposed to the government of another State. The Court is not here
concerned with the process of decolonisation It has to consider whether there might be
indications of a practice illustrative of belief in a kind of general right for States to
intervene, directly or indirectly, with or without armed force, in support of an internal
opposition in another State, whose cause appeared particularly worthy by reason of the
political and moral values with which it was identified. For such a general right to come
into existence would involve a fundamental modification of the customary law principle
of non-intervention. (paras 206, 207).
19. The Court went on to hold, as before, that for a new customary rule to be formed, not
only must the acts concerned amount to a settled practice, but they must be
accompanied by the opinio juris sive necessitates.

The significance for the Court of cases of State conduct prima facie inconsistent with the
principle of non-intervention lies in the nature of the ground offered as
justification. Reliance by a State on a novel right or an unprecedented exception to the
principle might, if shared in principle by other States, tend towards a modification of
customary international law. In fact however the Court finds that States have not justified
their conduct by reference to a new right of intervention or a new exception to the
principle of its prohibition. The United States authorities have on some occasions clearly
stated their grounds for intervening in the affairs of a foreign State for reasons connected
with, for example, the domestic policies of that country, its ideology, the level of its
armaments, or the direction of its foreign policy. But these were statements of
international policy, and not an assertion of rules of existing international law.

20. The Court also noted that the United States has not sought to justify its intervention
in Nicaragua on legal grounds, but had only justified it at a political level. The United
States had not asserted for itself legal right of intervention in these circumstances. The
Court, without further analysis into State practice, almost immediately proceeded to find
that no such general right of intervention, in support of an opposition within another
State, exists in contemporary international law. The Court concludes that acts
constituting a breach of the customary principle of non-intervention will also, if they
directly or indirectly involve the use of force, constitute a breach of the principle of non-
use of force in international relations (para 209).

Development of a parallel customary international law?


In addition to the comments made above in italics, another interesting aspect of the
judgment is that it sought to divorce customary international law obligation from the
identical treaty obligation because of the jurisdictional bar to consider multilateral
treaties. In its consideration of customary international law it developed certain principles
independently of the treaty. For example, Article 2(4) of the UN Charter prohibits the
threat or use of force against another State. The Court held that the same prohibition on
the use of force could be found under customary international law and as a jus
cogens norm. The Court then went on to categorize the use of force under customary law
as either a grave use of force (i.e. use of force amounting to an armed attack) or a
less grave use of force (i.e. use of force that falls short of an armed attack for
example, the threat to use force). The Court, then, restricted the right of self-defense to a
situation where there had been a grave use of force (or an armed attack, as defined by
the Court). If one were to hold that the relevant Charter principles were clear, precise and
unambiguous, one could say this divorced interpretation could result in customary law
developing in a manner that is not in line with the Charter and thereby creating separate
rights/ regimes of law that govern the same subject matter. This is because, then, the
two regimes would be irreconcilable. However, the fact remains that the Charter does
leave room for interpretation for example, on the definition of an armed attack or on
the use of force. In cases of ambiguity, Article 31 of the Vienna Convention on the Law of
Treaties directs us to look at, inter alia, subsequent practice and any relevant rules of
international law that maybe applicable. In other words, a treaty can be interpreted with
the assistance of customary and general principles of international law. In this case, the
development of customary law would also mean a potential development of ambiguous
treaty law and a reconciliation of treaty and customary law provisions.
6. EREMES KOOKOORITCHKIN, petitioner,
vs.
THE SOLICITOR GENERAL, oppositor.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Florencio Villamor for appellant.
L. D. Lockwood and Manuel O. Chan for appellee.

PERFECTO, J.:

In August, 1941, appellee filed with the lower court a petition for naturalization, accompanied with
supporting affidavits of two citizens, copy of a declaration of intention sworn in July, 1940, and proper
notice of the hearing. The petition was finally set for hearing on December 18, 1941, but it was held
on that date because the province was invaded by the Japanese forces on December 14, and the
case remained pending until the records were destroyed during the military operations for liberation in
March, 1945. The case was declared reconstituted on May 10, 1947, and the evidence was presented
on August 28 and September 30, 1947. On the same day resolution was issued granting the petition.

Although appellant was represented at the hearing and cross-examined the witnesses for the
petitioner, he did not file an opposition or presented any evidence.

The lower court made the findings of fact in the following paragraphs of its resolution:

Eremes Kookooritchkin applies for Philippine citizenship naturalization under the provisions of
Commonwealth Act 473, as amended by Act 535.

The records shows that in August, 1941, he filed his petition for naturalization supported by
the affidavits of ex-Judge Jaime M. Reyes and Dr. Salvador Mariano, both residents of
Camarines Sur. In the preceding year, in July, 1940 to be precise, he filed his declaration of
intention to become a citizen of this country. Notice of the hearing was published as required
by law.

It was established at the hearing that the petitioner is a native-born Russian, having first seen
the light of day on November 4, 1897 in the old City of St. Petersburg, Russia. He grew up as
a citizen of the defunct Imperial Russian Government under the Czars. World War I found him
in the military service of this Government. In 1915 he volunteered for the Imperial Russian
navy and was sent to the Navy Aviation School. He fought with the Allies in the Baltic Sea,
was later transferred to the eastern front in Poland, and much later was sent as a navy flier to
Asia Minor. In the latter part of the war, but before the Russian capitulation, he was
transferred to the British Air Force under which he served for fourteen months. When the
revolution broke out in Russia in 1917, he joined the White Russian Army at Vladivostok and
fought against the Bolsheviks until 1922 when the White Russian Army was overwhelmed by
the Bolsheviks. As he refused to join the Bolshevik regime, he fled by sea from Vladivostok to
Shanghai and from this Chinese port he found his way to Manila, arriving at this port as a
member of a group of White Russians under Admiral Stark in March, 1923. He stayed in
Manila for about seven months, then moved to Olongapo, Zambales, where he resided for
about a year, and from this place he went to Iriga, Camarines Sur, where he established his
permanent residence since May, 1925. He has remained a resident of this municipality,
except for a brief period from 1942 to July, 1945, when by reason of his underground activities
he roamed mountains of Caramoan as a guerrilla officer. After liberation he returned to Iriga
where again he resides up to the present time.

The applicant is married to a Filipino by the name of Concepcion Segovia, with whom he has
one son named Ronald Kookooritchkin. He is at present studying in Saint Agnes Academy, at
Legaspi, Albay, a school duly recognized by the Government.

The applicant is shop superintendent of A. L. Ammen Transportation Company, with about


eighty Filipino employees working under him. He receives an annual salary of P13,200 with
free quarters and house allowance. He also owns stocks and bonds of this and other
companies.

The applicant speaks and writes English and the Bicol dialect. Socially he intermingles with
the Filipinos, attending parties, dances and other social functions with his wife. He has a good
moral character and believes in the principles underlying the Philippine Constitution. He has
never been accused of any crime. On the other hand, he has always conducted himself in a
proper and irreproachable manner during his entire period of residence in Camarines Sur, in
his relations with the constituted authorities as well as with the community.

Although he could have lived in ease by maintaining good relations with the enemy by reason
of his being Russian-born during the years preceding the declaration of war by Russia against
Japan, the applicant of his own volition chose to cast his lot with the guerrilla movement and
fought the enemy in several encounters in the Province of Camarines Sur. He belonged to the
guerrilla outfit of Colonel Padua with rank of major. Upon the arrival of the forces of liberation
he was attached to the American Army from April to June, 1945.

Although a Russian by birth he is not a citizen of Soviet Russia. He disclaims allegiance to the
present Communist Government of Russia. He is, therefore, a stateless refugee in this
country, belonging to no State, much less to the present Government of the land of his birth to
which he is uncompromisingly opposed. He is not against organized government or affiliated
with any association which upholds and teaches doctrine opposing all organized
governments. He does not believe in the necessity or propriety of violence, personal assault
or assassination for the success or predominance of his ideas. Neither is he a polygamist or a
believer in the practice of polygamy. He is not suffering from any mental alienation or
incurable contagious disease.

Appellant assigns four errors in the appealed resolution. We will consider them separately.

Appellant claims that the lower court erred in not finding that the declaration of intention to become a
Filipino citizen filed by appellee is invalid and insufficient as a basis for the petition of naturalization.
The question calls for the application of the following provision of section 5 of the Revised
Naturalization Law:

No declaration shall be valid until entry for permanent residence has been established and a
certificate showing the date, place and manner of his arrival has been issued.

Appellant alleges that no documentary or testimonial evidence was introduced to establish the fact
that appellee had lawfully been admitted into the Philippines for permanent residence.

In the reconstituted declaration (page 11, record on appeal) the following can be read:

I arrived at the Port of Manila on or about the first day of March, 1923, as shown by the
attached certificate of arrival or landing certificate of residence.

The records of the Bureau of Justice, where the declarations of intention to become a Filipino citizen
were filed, had been lost or destroyed during the battle for the liberation of Manila, and the certificate
alluded to has not been reconstituted.

Appellant's contention that attachment of the certificate of arrival is essential to the validity of a
declaration finds no support in the wordings of the law, as the above-quoted section 5 of
Commonwealth Act no. 473 uses the words "has been issued.

Appellee suggests that we would not consider the question here raised by appellant, the latter having
failed to raise it in lower court and points out that there is testimonial evidence showing appellee's
arrival March, 1923, and that he was lawfully admitted for permanent residence, and the testimony of
petitioner has not been refuted. Appellee's alleges that the office of the President has certified that it is
a matter of record that petitioner was one of the Russian refugees who entered the Philippines under
the command of Admiral Stark, the facts regarding arrival of the latter fleet being a matter of common
knowledge, widely publicized in the newspapers at the time, of which this Court may properly take
judicial notice under section 5 of Rule 123. When the fleet entered the Philippine waters, it was met by
a Governor General Wood who, later, took the matter up with the authorities in Washington in lengthy
correspondence, and the 1,200 persons manning the fleet were allowed to land and to remain in the
Philippines or proceed to other countries, except about 800 who were allowed to go to the United
States and given free transportation on the naval transport "Merritt." The ships of the fleet were sold in
the Philippines.

The undisputed fact that the petitioner has been continuously residing in the Philippines for about 25
years, without having been molested by the authorities, who are presumed to have been regularly
performing their duties and would have arrested petitioner if his residence is illegal, as rightly
contended by appellee, can be taken as evidence that he is enjoying permanent residence legally.
That a certificate of arrival has been issued is a fact that should be accepted upon the petitioner's
undisputed statement in his declaration of July, 1940, that the certificate cannot be supposed that the
receiving official would have accepted the declaration without the certificate mentioned therein as
attached thereto.

We conclude that petitioner's declaration is valid under section 5 of the Naturalization Law, failure to
reconstitute the certificate of arrival notwithstanding. What an unreconstituted document intended to
prove may be shown by other competent evidence.

II

The second assignment of error touches upon two questions, that the lower court erred (1) in not
finding that appellee has not established a legal residence in the Philippines, and (2) in not finding that
he cannot speak and write any of the principal Philippine languages.

The first question has already been disposed of in the above discussion. Perusal of the testimonies on
record leads to the conclusion that petitioner has shown legal residence in the Philippines for a
continuous period of not less than ten years as required by section 2 of Commonwealth Act No. 473.

As to the next question, appellant alleges that in the oral test at the hearing, it was demonstrated that
petitioner has only a smattering of Bicol, the Filipino language that petitioner alleges to know, and he
cannot speak it as he was not able to translate from English to Bicol questions asked by the court and
the provincial fiscal, although, in the continuation of the hearing on September 30, 1947, "surprisingly
enough, he succeeded answering correctly in Bicol the questions propounded by his counsel,
however, he fumbled and failed to give the translation of such a common word as 'love' which the
fiscal asked of him.

The lower court made the finding of fact that applicant speaks and writes English and Bicol and there
seems to be no question about the competency of the judge who made the pronouncement, because
he has shown by the appealed resolution and by his questions propounded to appellee, that he has
command of both English and Bicol.

The law has not set a specific standard of the principal Philippine languages. A great number of
standards can be set. There are experts in English who say that Shakespeare has used in his works
15,000 different English words, and the King's Bible about 10,000, while about 5,000 are used by the
better educated persons and about 3,000 by the average individual. While there may be persons
ambitious enough to have a command of the about 600,000 words recorded in the Webster's
International Dictionary, there are authorities who would reduce basic English to a few hundred words.
Perhaps less than one hundred well selected words will be enough for the ordinary purposes of daily
life.
There is a reason to believe that the lower court's pronouncement is well taken considering the fact
that, after he was liberated in 1942 from the Japanese in the Naga prison, petitioner joined the
guerrilla in the Bicol region, took part in encounters and skirmishes against the Japanese, and
remained with the guerrilla until the Americans liberated the Bicol provinces. If appellee with his
smattering of Bicol was able to get along with his Bicol comrades in the hazardous life of the
resistance movement, we believe that his knowledge of the language satisfies the requirement of the
law.

But appellant contends that there is no piece of positive evidence to support petitioner's allegation that
he can write too in the Bicol language. There, is, however, on record circumstantial evidence from
which it can be concluded that petitioner ought to know also how to write Bicol. We know that Bicol, as
all the important Philippine languages, uses the same alphabet used in English, and it is much easier
to write Bicol than English, because it is phonetic. Vowels and consonants have in them single and
not interchangeable phonetic values, while English words deviate very often from the basic sounds of
the alphabet. The ability to write cannot be denied to a person like petitioner, who has undergone the
exacting technical training to be able to render services as flier in the Russian Naval Squadron in the
Baltic Sea and in the British Air Forces during the first World War. The difference between the Cyrillic
alphabet, as now used by Russians, and our Roman alphabet, cannot weigh much to deny petitioner
the ability to use the latter. A person who has shown the command of English which can be seen in his
testimony on record can easily make use of an alphabet of twenty or more letters universally used in
this country where he has been residing continuously for 25 years.

III

Appellant contends that the lower court erred in finding appellee stateless and not a Russian citizen
and in not finding that he has failed to establish that he is not disqualified for Philippine citizenship
under section 4 (h) of the Revised Naturalization Law.

It is contended that petitioner failed to show that under the laws of Russia, appellee has lost his
Russian citizenship and failed to show that Russia grants to Filipinos the right to become a naturalized
citizens or subjects thereof. The controversy centers on the question as to whether petitioner is a
Russian citizen or is stateless.

Petitioner testified categorically that he is not a Russian citizen and that he has no citizenship. His
testimony supports the lower court's pronouncement that petitioner is a stateless refugee in this
country.

Appellant points out that petitioner stated in his petition for naturalization that he is citizen or subject of
the Empire of Russia, but the Empire of Russia has ceased to exist since the Czars were overthrown
in 1917 by the Bolshevists, and the petitioner disclaims allegiance or connection with the Soviet
Government established after the overthrow of the Czarist Government.

We do not believe that the lower court erred in pronouncing appellee stateless. Appellee's testimony,
besides being uncontradicted, is supported by the well-known fact that the ruthlessness of modern
dictatorship has scattered throughout the world a large number of stateless refugees or displaced
persons, without country and without flag. The tyrannical intolerance of said dictatorships toward all
opposition induced them to resort to beastly oppression, concentration camps and blood purges, and
it is only natural that the not-so-fortunate ones who were able to escape to foreign countries should
feel the loss of all bonds of attachment to the hells which were formerly their fatherland's. Petitioner
belongs to that group of stateless refugees.

Knowing, as all cultured persons all over the world ought to know, the history, nature and character of
the Soviet dictatorship, presently the greatest menace to humanity and civilization, it would be
technically fastidious to require further evidence of petitioner's claim that he is stateless than his
testimony that he owes no allegiance to the Russian Communist Government and, is because he has
been at war with it, he fled from Russia to permanently reside in the Philippines. After finding in this
country economic security in a remunerative job, establishing a family by marrying a Filipina with
whom he has a son, and enjoying for 25 years the freedoms and blessings of our democratic way of
life, and after showing his resolution to retain the happiness he found in our political system to the
extent of refusing to claim Russian citizenship even to secure his release from the Japanese and of
casting his lot with that of our people by joining the fortunes and misfortunes of our guerrillas, it would
be beyond comprehension to support that the petitioner could feel any bond of attachment to the
Soviet dictatorship.

IV

The fourth and last assignment of error need not be discussed, it being only a sequel of the other
assignments and has necessarily been disposed of in their discussion.

The appealed resolution is affirmed.

7. REQUEST FOR AN EXAMINATION OF THE SITUATION


IN ACCORDANCE WITH PARAGRAPH 63 OF THE COURT'S JUDGMENT
OF 20 DECEMBER 1974 IN THE NUCLEAR TESTS
(NEW ZEALAND v. FRANCE) CASE

Order of 22 September 1995

The Court handed down its decision that New Zealand's Request for an Examination of the Situation in
accordance with Paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests Case (New Zealand v. France),
made on 21 August 1995, "does not fall within the provisions of the said paragraph 63 and must consequently be
dismissed."

Consequently, New Zealand's request for provisional measures and the applications for permission to intervene
submitted by Australia, Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia as
well as the declarations of intervention made by the last four States, all of which are proceedings incidental to
New Zealand's main request, likewise had to be dismissed.

The Court limited the present proceedings to the examination of the following question: "Do the Requests
submitted to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of
paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New
Zealand v. France)?". In the Court's view that question has two elements. The first element concerns the courses
of procedure envisaged by the Court in paragraph 63 of its 1974 Judgment, when it stated that "the Applicant
could request an examination of the situation in accordance with the provisions of the Statute"; the other
concerns the question whether the "basis" of that Judgment has been "affected" within the meaning of paragraph
63 thereof.

In its examination of that question the Court found in the first place that by inserting in paragraph 63 the above-
mentioned phrase, the Court did not exclude a special procedure for access to it (unlike those mentioned in the
Court's Statute, like the filing of a new application, or a request for interpretation or revision, which would have
been open to the Applicant in any event). Secondly, however, the Court found that that special procedure would
only be available to the Applicant if circumstances were to arise which affected the basis of the 1974 Judgment.
And that, it found, was not the case, as the basis of that Judgment was France's undertaking not to conduct any
further atmospheric nuclear tests and only a resumption of nuclear tests in the atmosphere would therefore have
affected it.

The decision was taken by 12 votes to 3. Three declarations, one separate opinion and three dissenting opinions
were appended to the Order.

Summary of the Order


In its Order the Court recalls that on 21 August 1995 New Zealand filed a "Request for an Examination of the
Situation" in accordance with paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests Case (New
Zealand v. France); it is indicated in the Request that it "aris[es] out of a proposed action announced by France
which will, if carried out, affect the basis of the Judgment rendered by the Court on 20 December 1974 in the
Nuclear Tests Case (New Zealand v. France)"; and that "the immediate circumstance giving rise to the present
phase of the Case is a decision announced by France in a media statement of 13 June 1995" by the President of
the French Republic, according to which "France would conduct a final series of eight nuclear weapons tests in
the South Pacific starting in September 1995". New Zealand expressly founds its "Request for an Examination
of the Situation" on paragraph 63 of the Judgment of 20 December 1974 (cited below). At the end of its Request,
New Zealand states that the rights for which it seeks protection all fall within the scope of the rights invoked in
paragraph 28 of its Application of 1973, but that, at the present time, it seeks recognition only of those rights
that would be adversely affected by entry into the marine environment of radioactive material as a result of the
further tests to be carried out at Mururoa or Fangataufa Atolls, and of its entitlement to protection and to the
benefit of a properly conducted Environmental Impact Assessment; within these limits, New Zealand asks the
Court to adjudge and declare:

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

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

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

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

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

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

The Court also refers to the submission of Applications for Permission to Intervene by Australia, Samoa,
Solomon Islands, the Marshall Islands and the Federated States of Micronesia, as well as to the declarations on
intervention made by the last four States. It then refers to the presentation, at the invitation of the President of
the Court, of informal aides-mmoire by New Zealand and France and to the public sittings held on 11 and 12
September 1995. The Court then summarizes the views expressed by the two States in the course of the
proceedings.

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

The Court begins by citing paragraph 63 of the Judgment of 20 December 1974, which provides: "Once the
Court has found that a State has entered into a commitment concerning its future conduct it is not the Court's
function to contemplate that it will not comply with it. However, the Court observes that if the basis of this
Judgment were to be affected, the Applicant could request an examination of the situation in accordance with
the provisions of the Statute; the denunciation by France, by letter dated 2 January 1974, of the General Act for
the Pacific Settlement of International Disputes, which is relied on as a basis of jurisdiction in the present case,
cannot constitute by itself an obstacle to the presentation of such a request."

It then indicates that the following question has to be answered in limine: "Do the Requests submitted to the
Court by the Government of New Zealand on 21 August 1995 fall within the provisions of paragraph 63 of the
Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealand v. France)?";
and that the present proceedings have consequently been limited to that question. The question has two
elements; one concerns the courses of procedure envisaged by the Court in paragraph 63 of its 1974 Judgment,
when it stated that "the Applicant could request an examination of the situation in accordance with the
provisions of the Statute"; the other concerns the question whether the "basis" of that Judgment has been
"affected" within the meaning of paragraph 63 thereof.

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

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

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

The Court then considers that it must determine the second element of the question raised, namely whether the
basis of its Judgment of 20 December 1974 has been affected by the facts to which New Zealand refers and
whether the Court may consequently proceed to examine the situation as contemplated by paragraph 63 of that
Judgment; to that end, it must first define the basis of that Judgment by an analysis of its text. The Court
observes that, in 1974, it took as the point of departure of its reasoning the Application filed by New Zealand in
1973; that in its Judgment of 20 December 1974 it affirmed that "in the circumstances of the present case, as
already mentioned, the Court must ascertain the true subject of the dispute, the object and purpose of the
claim ... In doing so it must take into account not only the submission, but the Application as a whole, the
arguments of the Applicant before the Court, and other documents referred to ..." (I.C.J. Reports 1974, p. 467,
para. 31). Referring, among other things, to a statement made by the Prime Minister of New Zealand, the Court
found that "for purposes of the Application, the New Zealand claim is to be interpreted as applying only to
atmospheric tests, not to any other form of testing, and as applying only to atmospheric tests so conducted as to
give rise to radio-active fall-out on New Zealand territory" (I.C.J. Reports 1974, p. 466, para. 29). In making, in
1974, this finding and the one in the Nuclear Tests Case (Australia v. France) (for the Court, the two cases
appeared identical as to their subject-matter which concerned exclusively atmospheric tests), the Court had
addressed the question whether New Zealand, when filing its 1973 Application might have had broader
objectives than the cessation of atmospheric nuclear tests - the "primary concern" of the Government of New
Zealand, as it now puts it. The Court concludes that it cannot now reopen this question since its current task is
limited to an analysis of the Judgment of 1974.

The Court recalls that moreover it took note, at that time, of the communiqu issued by the Office of the
President of the French Republic on 8 June 1974, stating that "in view of the stage reached in carrying out the
French nuclear defence programme France will be in a position to pass on to the stage of underground
explosions as soon as the series of tests planned for this summer is completed" (I.C.J. Reports 1974, p. 469,
para. 35); and to other official declarations of the French authorities on the same subject, made publicly outside
the Court and erga omnes, and expressing the French Government's intention to put an end to its atmospheric
tests; that, comparing the undertaking entered into by France with the claim asserted by New Zealand, it found
that it faced "a situation in which the objective of the Applicant [had] in effect been accomplished" (I.C.J.
Reports 1974, p. 475, para. 55) and accordingly indicated that "the object of the claim having clearly
disappeared, there is nothing on which to give judgment" (I.C.J. Reports 1974, p. 477, para. 62). The Court
concludes that the basis of the 1974 Judgment was consequently France's undertaking not to conduct any further
atmospheric nuclear tests; that it was only, therefore, in the event of a resumption of nuclear tests in the
atmosphere that that basis of the Judgment would have been affected; and that that hypothesis has not
materialized.

The Court observes further that in analysing its Judgment of 1974, it reached the conclusion that that Judgment
dealt exclusively with atmospheric nuclear tests; that consequently, it is not possible for the Court now to take
into consideration questions relating to underground nuclear tests; and that the Court cannot, therefore, take
account of the arguments derived by New Zealand, on the one hand from the conditions in which France has
conducted underground nuclear tests since 1974, and on the other from the development of international law in
recent decades - and particularly the conclusion, on 25 November 1986, of the Noumea Convention - any more
than of the arguments derived by France from the conduct of the New Zealand Government since 1974. It
finally observes that its Order is without prejudice to the obligations of States to respect and protect the natural
environment, obligations to which both New Zealand and France have in the present instance reaffirmed their
commitment.

The Court therefore finds that the basis of the 1974 Judgment has not been affected; that New Zealand's Request
does not therefore fall within the provisions of paragraph 63 of that Judgment; and that that Request must
consequently be dismissed. It also points out that following its Order, the Court has instructed the Registrar to
remove that Request from the General List as of 22 September 1995.

Finally the Court indicates that it must likewise dismiss New Zealand's "Further Request for the Indication of
Provisional Measures" as well as the applications for permission to intervene submitted by Australia, Samoa,
Solomon Islands, the Marshall Islands and the Federated States of Micronesia and the declarations of
intervention made by the last four States - all of which are proceedings incidental to New Zealand's main
request.

The full text of the operative paragraph reads as follows:

"68. Accordingly,

THE COURT,

(1) By twelve votes to three,

Finds that the "Request for an Examination of the Situation" in accordance with paragraph 63 of the Judgment
of the Court of 20 December 1974 in the Nuclear Tests Case (New Zealand v. France), submitted by New
Zealand on 21 August 1995, does not fall within the provisions of the said paragraph 63 and must consequently
be dismissed;

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Ranjeva,
Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;

AGAINST: Judges Weeramantry, Koroma; Judge ad hoc Sir Geoffrey Palmer;

(2) By twelve votes to three,

Finds that the "Further Request for the Indication of Provisional Measures" submitted by New Zealand on the
same date must be dismissed;

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Ranjeva,
Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;

AGAINST: Judges Weeramantry, Koroma; Judge ad hoc Sir Geoffrey Palmer;

(3) By twelve votes to three,

Finds that the "Application for Permission to Intervene" submitted by Australia on 23 August 1995, and the
"Applications for Permission to Intervene" and "Declarations of Intervention" submitted by Samoa and Solomon
Islands on 24 August 1995, and by the Marshall Islands and the Federated States of Micronesia on 25 August
1995, must likewise be dismissed.

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Ranjeva,
Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;

AGAINST: Judges Weeramantry, Koroma; Judge ad hoc Sir Geoffrey Palmer."

Vice-President Schwebel and Judges Oda and Ranjeva appended declarations to the Order of the Court. Judge
Shahabuddeen appended a separate opinion; and Judges Weeramantry, Koroma and Judge ad hoc Sir Geoffrey
Palmer appended dissenting opinions to the Order.

Declaration of Vice-President Schwebel

Vice-President Schwebel, in a Declaration, maintained that France's objections to the maintenance by New
Zealand of its Requests were tantamount to an objection to admissibility, and should have been treated
accordingly pursuant to the Rules of Court.

Declaration of Judge Oda

In his declaration, Judge Oda fully supported the Order which dismisses New Zealand's request to re-open the
Nuclear Tests Case (New Zealand v. France) of 1973/1974, as he shared the reasoning with regard to the matters
of procedure leading to the refusal of that request. But, as the Member of the Court from the only country which
has suffered the devastating effects of nuclear weapons, he felt bound to express his personal hope that no
further tests of any kind of nuclear weapons would be carried out under any circumstances in future.
Declaration of Judge Ranjeva

In his declaration, Judge Ranjeva expressed regret that the Court had overemphasized procedural formalism
while not adhering to the structure of the reasoning adopted in paragraph 63 of the 1974 Judgment. As he saw it,
dealing first with the question of the basis of that Judgment and the conclusions reached in the Order rendered
the developments devoted to procedural questions without object.

Separate opinion of Judge Shahabuddeen

In his Separate Opinion, Judge Shahabuddeen said that the growing recognition of the need to protect the natural
environment was striking. He understood New Zealand's concerns and agreed with its case on several points. He
agreed that New Zealand was entitled to come to the Court, entitled to a hearing, entitled to a Judge ad hoc, and
that it was not shut out by the words in paragraph 63 of the 1974 Judgment, "in accordance with the provisions
of the Statute".

Judge Shahabuddeen also accepted that New Zealand was opposed to nuclear contamination arising from
nuclear testing of any kind. The question was how far was this general opposition to contamination from nuclear
testing of any kind made the subject of the specific dispute presented in the particular case which New Zealand
brought against France in 1973.

The question was important because New Zealand was seeking to link its present Request to the 1973 case.
France contended that there could be no linkage because, in its view, the 1973 case concerned atmospheric
nuclear tests, whereas New Zealand's present Request concerned a different question of underground nuclear
tests. New Zealand's view was that the 1973 case concerned the general subject of nuclear contamination by
nuclear testing of any kind, and was therefore wide enough to include nuclear contamination by underground
tests.

On this crucial issue, Judge Shahabuddeen noted that, after references in New Zealand's 1973 Application to
discussions between the New Zealand and France, paragraph 8 of that Application stated:

"The French Government ... made it plain that it did not accept the contention that its programme of atmospheric
nuclear testing in the South Pacific involved a violation of international law. There is, accordingly, a dispute
between the Government of New Zealand and the French Government as to the legality of atmospheric nuclear
tests in the South Pacific region."

That passage fell under the heading "The Subject of the Dispute". Paragraph 10 of the Application, falling under
the same heading, added:

"Having failed to resolve through diplomatic means the dispute that exists between it and the French
Government, the New Zealand Government is compelled to refer the dispute to the International Court of
Justice."

Thus, the dispute which was referred by New Zealand to the Court in 1973 was one "as to the legality of
atmospheric nuclear tests"; it was not one concerning the wider subject of nuclear contamination by nuclear
testing of any kind. The subject of the 1973 case being different from the subject of the New Zealand's present
Request, it followed that the latter could not be linked to the former.

In the circumstances, although agreeing with New Zealand on several points, Judge Shahabuddeen felt
prevented by substantial legal obstacles from agreeing with it on the remainder of its case.

Dissenting opinion of Judge Weeramantry


Judge Weeramantry, in his Opinion, stated that the Court in 1974 had devised a special procedure, distinct from
procedures for revision or interpretation of its Judgment, enabling New Zealand to approach the Court if the
"basis" of the Judgment was "affected". The Court laid down no limits of time for this purpose.

A situation has now arisen, not contemplated then, of a continuance of the same sort of radioactive
contamination as brought New Zealand to the Court in 1973.

The Court would not have considered the shift of venue to underground tests as having brought New Zealand's
dispute to an end had the knowledge available today been available to the Court then. Had it possessed that
knowledge, it would have been strange if the Court had been prepared to commit New Zealand to the dangers
now complained of and, at the same time, viewed New Zealand's grievances as having come to an end in
consequence of the shifting of the venue of the explosions.

New Zealand's complaint in 1973 was that damage was caused by French nuclear explosions in the Pacific. New
Zealand's complaint today is the same. The cause is the same, namely, French nuclear tests in the Pacific. The
damage is the same, namely, radioactive contamination. The only difference is that the weapons are detonated
underground.

Judge Weeramantry's Opinion states that New Zealand has made out a prima facie case of danger from French
nuclear tests, on the basis of which, in the absence of rebutting evidence by France, New Zealand had shown
that the "basis" of the 1974 Judgment is now "affected". This gives New Zealand a right to request an
examination of the situation, and places the Court under a duty to consider that request and the interim measures
following from it. It also places on the Court the duty to consider the applications for permission to intervene of
Australia, Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia.

Judge Weeramantry also pointed out that important principles of environmental law are involved in this case,
such as the precautionary principle, the principle that the burden of proving safety lies on the author of the act
complained of, and the intergenerational principle relating to the rights of future generations. Judge
Weeramantry regretted that the Court had not availed itself of the opportunity to consider these principles.

Dissenting opinion of Judge Koroma

In his dissenting opinion, Judge Koroma stated that he was unable to support either the Order of the Court, or
most of its reasoning.

Judge Koroma pointed out that New Zealand had established that its Requests fall under the provisions of
paragraph 63 of the Court's Judgment rendered in 1974 in the Nuclear Tests Case (New Zealand v. France).

He recalled that that Judgment had dealt with the effects of radioactive fall-out resulting from atmospheric tests,
whereas New Zealand's Application then related to nuclear tests in the South Pacific region, and, to the extent
that new scientific evidence now suggests that radioactive fall-out could result from underground tests, in the
region, the basis of the Judgment has been affected.

He also stated that the Court should have taken cognizance of the legal trend prohibiting nuclear tests with
radioactive effect on the environment, and should have proceeded to examine the Request submitted by New
Zealand.

Dissenting opinion of Judge ad hoc Sir Geoffrey Palmer

Judge ad hoc Sir Geoffrey Palmer's dissenting opinion reaches a different conclusion from that of the Court. In
his view paragraph 63 of the 1974 Judgment is wide enough to provide grounds for the Court to entertain the
present Application and in the circumstances it should do so. The fundamental issue in the case in the view of
the majority turns on the distinction between atmospheric and underground testing. In Judge Palmer's opinion
both involve nuclear contamination and that is sufficient in the particular circumstances that have occurred to
provide grounds for the Court to examine the situation and proceed to the next stage of the case.

8. Advisory Opinions of the World Court on the Legality of Nuclear Weapons

On July 8, 1996, the International Court of Justice (ICJ), popularly known as the World Court,
delivered two advisory opinions on separate requests received from the World Health Organization
and the General Assembly of the United Nations, respectively, relating to the legality of nuclear
weapons under international law. The principal judicial organ of the United Nations, whose Statute
forms an integral part of the UN Charter, consists of 15 judges representing the different regions and
principal legal systems of the world. In addition to the Court's function of delivering judgments in
contentions cases submitted to it by states, it may issue non-binding advisory opinions at the request
of certain UN organs and agencies.

Legality of the Threat or Use of Nuclear Weapons

On December 20, 1994, the UN General Assembly requested the ICJ to give an advisory opinion on
the question: "Is the threat or use of nuclear weapons in any circumstance permitted under
international law?"

At the outset, the ICJ confirmed the Assembly's broad competence to make such a request, deriving
from the UN Charter and the Assembly's longstanding activities regarding disarmament and nuclear
weapons. The Court also found that the request related to a legal question within the meaning of the
ICJ Statute and the UN Charter and that there were no compelling reasons to refuse the request, even
though the question put to it did not relate to a specific dispute and was couched in abstract terms.

In determining the legality or illegality of the threat or external use of nuclear weapons, the ICJ
decided that the most directly relevant applicable law governing the Assembly's question consisted of
(1) the provisions of the UN Charter relating to the threat or use of force, (2) the principles and rules of
international humanitarian law that form part of the law applicable in armed conflict and the law of
neutrality, and (3) any relevant specific treaties on nuclear weapons. In applying this law, the Court
considered it imperative to take into account certain unique characteristics of nuclear weapons, in
particular their destructive capacity that can cause untold human suffering for generations to come.

The Court first considered the provisions of the UN Charter relating to the threat or use of force.
Although Article 2(4) (generally prohibiting the threat or use of force), Article 51 (recognizing every
state's inherent right of individual or collective self-defense if an armed attack occurs) and Article 42
(authorizing the Security Council to take military enforcement measures) do not refer to specific
weapons, the Court held that they apply to any use of force, regardless of the type of weapon
employed. The Court noted that the UN Charter neither expressly prohibits, nor permits, the use of
any specific weapon (including nuclear weapons) and that a weapon that is already unlawful per se by
treaty or custom does not become lawful by reason of its being used for a legitimate purpose under
the Charter. Whatever the means of force used in self-defense, the dual customary condition of
necessity and proportionality and the law applicable in armed conflict apply, including such further
considerations as the very nature of nuclear weapons and the profound risks associated with their
use.
The ICJ also considered the question whether a signalled intention to use force if certain events occur
qualifies as an unlawful "threat" under Article 2(4) of the UN Charter. According to the Court, the
notions of "threat" or "use" of force under Article 2(4) work in tandem in that the illegal use of force in a
given case will likewise make the threat to use such force unlawful. The Court pointed out that the
mere possession of nuclear weapons would not constitute an unlawful "threat" to use force contrary to
Article 2(4), unless the particular use of force envisaged would be directed against the territorial
integrity or political independence of a state or would be inconsistent with the purposes of the United
Nations or, in the event that it were intended as a means of defense, such envisaged use of force
would violate the principles of necessity and proportionality.

The Court next examined the law applicable in situations of armed conflict by addressing two
questions: (1) are there specific rules in international law regulating the legality or illegality of recourse
to nuclear weapons per se, and (2) what are the implications of the principles and rules of
humanitarian law applicable in armed conflict and the law of neutrality?

The ICJ noted that international customary and treaty law do not contain any specific prescription
authorizing the threat or use of nuclear weapons or any other weapon in general or in certain
circumstances, in particular those of the exercise of legitimate self-defense. Nor, however, is there any
principle or rule of international law that would make the legality of the threat or use of nuclear
weapons or of any other weapons dependent on a specific authorization. State practice shows that
the illegality of the use of certain weapons as such does not result from an absence of authorization
but is rather formulated in terms of prohibition.

The Court examined whether any such prohibition of recourse to nuclear weapons can be found in
treaty law. With regard to certain specific treaties dealing with the acquisition, manufacture,
possession, deployment and testing of nuclear weapons, the Court noted that these treaties "point to
an increasing concern in the international community" with regard to nuclear weapons, and concluded
that they "could therefore be seen as foreshadowing a future general prohibition of the use of such
weapons, but they do not constitute such a prohibition by themselves." As to those treaties that
address the issue of recourse to nuclear weapons, the Court observed that they "testify to a growing
awareness of the need to liberate the community of States and the international public from the
dangers resulting from the existence of nuclear weapons," but that these treaties also do not amount
to a comprehensive and universal conventional prohibition on the threat or use of nuclear weapons as
such.

The Court then examined customary international law. First, it determined that the non-use of nuclear
weapons does not amount to a customary prohibition, because the world community is profoundly
divided on the issue. Second, the Court examined whether certain General Assembly resolutions that
deal with nuclear weapons signify the existence of a rule of customary international law prohibiting
recourse to nuclear weapons. In the Court's view, although these resolutions are "a clear sign of deep
concern regarding the problem of nuclear weapons" and "reveal the desire of a very large section of
the international community to take, by a specific and express prohibition of the use of nuclear
weapons, a significant step forward along the road to complete nuclear disarmament," they fall short
of a customary rule specifically prohibiting the use of nuclear weapons as such.

The ICJ next considered whether recourse to nuclear weapons must be considered as illegal in the
light of the principles and rules of international humanitarian law applicable in armed conflict and of
the law of neutrality. The Court stated that the cardinal principles of international humanitarian law
prescribing the conduct of military operations are: (1) the protection of the civilian population and
civilian objects and the prohibition of the use of weapons incapable of distinguishing between
combatants and non-combatants, and (2) the prohibition on causing unnecessary suffering to
combatants by using certain weapons. According to the Court, the fundamental rules of humanitarian
law applicable in armed conflict must be observed by all states whether or not they have ratified the
conventions that contain them, because they constitute intransgressible principles of international
customary law. The ICJ agreed with the vast majority of states as well as writers that there can be no
doubt as to the applicability of the principles and rules of humanitarian law in armed conflict to a
possible threat or use of nuclear weapons, despite the fact that these principles and rules had evolved
prior to the invention of nuclear weapons. It also found that the customary principle of neutrality is
applicable, subject to the relevant provisions of the UN Charter, to all international armed conflict,
whatever type of weapons might be used (although the principle of neutrality is not well defined, and
the ICJ left its content undefined here, it is generally regarded as requiring at least that no attack be
made on a state that has declared itself a neutral and is conducting itself accordingly).

Despite the undisputed applicability of the principles and rules of humanitarian law and of the law of
neutrality to nuclear weapons, the ICJ found that the conclusions to be drawn from this applicability
were controversial. The Court admitted that, in view of the unique characteristics of nuclear weapons,
their use "in fact seems scarcely reconcilable" with the strict requirements dictated by the law
applicable in armed conflict. The judges being evenly divided, ICJ President Mohammed Bedjaoui
used his casting vote to hold that the threat or use of nuclear weapons would generally be contrary to
the rules of international law applicable in armed conflict. At the same time, the ICJ held that it did not
have a sufficient basis for a definitive conclusion as to whether the use of nuclear weapons would or
would not be at variance with the principles and rules of law applicable in armed conflict in an extreme
circumstance of self-defense, in which a state's very survival is at stake.

Finally, the Court examined the obligation to negotiate in good faith a complete nuclear disarmament,
recognized in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of 1968. The ICJ
judges held unanimously that the obligation enshrined in Article VI involves "an obligation to achieve a
precise result-nuclear disarmament in all its aspects-by adopting a particular course of conduct,
namely, the pursuit of negotiations on the matter in good faith." The Court noted that this twofold
obligation to pursue and conclude negotiations in accordance with the basic principle of good faith
formally concerns the 182 states parties to the Treaty on the Non-Proliferation of Nuclear Weapons,
constituting the vast majority of the international community.

Legality of the Use by a State of Nuclear Weapons in Armed Conflict

On July 8, 1996, the ICJ ruled also that it was unable to comply with a request received on September
1993 from the World Health Organization (WHO) to give an advisory opinion on the following
question: "In view of the health and environmental effects, would the use of nuclear weapons by a
State in war or other armed conflict be a breach of its obligations under international law including the
WHO Constitution?" The Court ruled, 11-3, that although the WHO is duly authorized under the UN
Charter to request advisory opinions from the ICJ and the opinion requested concerned a legal
question, the request submitted by the WHO did not relate to a question arising within the scope of the
activities of that organization as required by Article 96(2) of the UN Charter.

The Court pointed out that its jurisdiction to provide an advisory opinion in response to a request by a
specialized agency requires that: (1) the specialized agency requesting the opinion must be duly
authorized, under the UN Charter, to request advisory opinions from the ICJ, (2) the opinion requested
must relate to a "legal question" within the meaning of the ICJ Statute and the UN Charter, and (3) the
opinion requested must relate to a question that arises within the scope of the activities of the
specialized agency requesting the opinion.

Regarding the third condition, the Court emphasized the importance of the relevant rules, and in
particular the constituent instrument, of the WHO in determining the scope of its activities against the
background of the question it posed. In interpreting the constituent instrument of an international
organization, the character of which is conventional and at the same time institutional (being a treaty
establishing an international organization), the Court observed that the following elements deserve
special attention: (i) the nature of the international organization, (ii) the objectives assigned to the
organization by its founders, (iii) the imperatives associated with the effective performance of the
functions of the organization, and (iv) the organization's own practice.

The ICJ observed that none of the 22 functions listed in the WHO Constitution expressly refers to the
legality of any activity hazardous to health, or depends upon the legality of the situations in which that
organization must act. Article 2 states that the WHO discharges its functions "to achieve its objective,"
which Article 1 defines as "the attainment by all peoples of the highest possible level of health."
According to the Court, the functions listed in Article 2 authorize the WHO to deal with the effects on
health of the use of nuclear weapons, or any other hazardous activity, and to take preventive
measures that are aimed at protecting the health of populations in the event of such weapons being
used or such activities engaged in.

Having found the request to relate not to the effects of the use of nuclear weapons on health, but
rather the legality of the use of such weapons in view of their health and environmental effects, the
Court concluded that there was insufficient connection between the request and the functions of the
WHO to support the Court's jurisdiction. According to the ICJ: "the legality or illegality of the use of
nuclear weapons in no way determines the specific measures, regarding health or otherwise (studies,
plans, procedures, etc.), which could be necessary in order to prevent or cure some of their effects."

The Court acknowledged that international organizations can exercise subsidiary or "implied" powers
not expressly provided for in the basic instruments that govern their activities. However, it held that the
competence to address the legality of the use of nuclear weapons could not be deemed a necessary
implication of the WHO Constitution in the light of the purposes member states had assigned to it. To
hold otherwise would be tantamount to disregarding the principle of speciality according to which
international organizations operate in limited fields.

The ICJ explained that the logic of the UN Charter system demonstrates that the United Nations was
invested with powers of general scope and that specialized agencies such as the WHO were invested
with sectorial powers. The responsibilities of the WHO are necessarily restricted to the sphere of
public health, and cannot encroach on the responsibilities of other parts of the UN system. More
specifically, questions concerning the use of force, the regulation of armaments, and disarmament are
within the competence of the United Nations and outside that of the specialized agencies.

Finally, the Court pointed out that none of the WHO's reports and resolutions was in the nature of a
practice of the WHO concerning the legality of the threat or use of nuclear weapons. It held that in
general the WHO is not empowered to seek an opinion on the interpretation of its Constitution in
relation to matters outside the scope of its functions.
******
These advisory opinions of the World Court are of considerable significance to the development of the
law of nuclear weapons and international organizations. Although the Court concluded that it was
unable to hold definitively whether the threat or use of nuclear weapons would be lawful or unlawful in
an extreme circumstance of self-defense in which the very survival of a state would be at stake
(thereby leaving the door to legality open) and it could not give the opinion requested by the WHO, the
legal reasoning leading to these conclusions reflects the Court's authoritative views on important
issues of international law. Although the opinions are non-binding, in preparing them the Court follows
the same rules and procedures that govern its binding judgments delivered in contentious cases
submitted to it by sovereign states.

9. THE PAQUETE HABANA, 175 U.S. 677


(1900)
Facts:
These are two appeals from decrees of the district court of the United States for the southern district
of Florida condemning two fishing vessels and their cargoes as prize of war.

Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in fishing on
the coast of Cuba. It sailed under the Spanish flag and was owned by a Spanish subject of Cuban
birth, living in the city of Havana. It was commanded by a subject of Spain, also residing in Havana.
Her master and crew had no interest in the vessel, but were entitled to share her catch.

Her cargo consisted of fresh fish, caught by her crew from the sea, put on board as they were caught,
and kept and sold alive. Until stopped by the blockading squadron she had no knowledge of the
existence of the war or of any blockade. She had no arms or ammunition on board, and made on
attempt to run the blockade after she knew of its existence, nor any resistance at the time of the
capture.

The Paquete Habana (1st vessel) was a sloop and had a crew of three Cubans, including the master,
who had a fishing license from the Spanish government, and no other commission or license. She left
Havana and was captured by the United States gunboat Castine.

The Lola (2nd vessel) was a schooner and had a crew of six Cubans, including the master, and no
commission or license. She was stopped by the United States steamship Cincinnati, and was warned
not to go into Havana, but was told that she would be allowed to land at Bahia Honda. She then set
for Bahia Honda, but on the next morning, when near that port, was captured by the United States
steamship Dolphin.

Both the fishing vessels were brought by their captors into Key West. A libel for the condemnation of
each vessel and her cargo as prize of war was filed. Each vessel was sold by auction (the Paquete
Habana for the sum of $490 and the Lola for the sum of $800). There was no other evidence in the
record of the value of either vessel or of her cargo.

Issue:

Whether or not the fishing smacks were subject to capture during the war with Spain.

Held:
No. By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into
a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in
fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of
war. (The case then discussed instances throughout history where fishing vessels were captured.)

It will be convenient to refer to some leading French treatises on international law as determined by
the general consent of civilized nations.

'Enemy ships,' say Pistoye and Duverdy, in their Treatise on Maritime Prizes, published in 1855, 'are
good prize. Not all, however; for it results from the unanimous accord of the maritime powers that an
exception should be made in favor of coast fishermen. Such fishermen are respected by the enemy
so long as they devote themselves exclusively to fishing.'
De Cussy, in his work on the Phases and Leading Cases of the Maritime Law of Nations, affirms in
the clearest language the exemption from capture of fishing boats, saying, that 'in time of war the
freedom of fishing is respected by belligerents; fishing boats are considered as neutral; in law, as in
principle, they are not subject either to capture or to confiscation.

Ortolan, in the fourth edition of his Regles Internationales et Diplomatie de la Mer, after stating the
general rule that the vessels and cargoes of subjects of the enemy are lawful prize, says:
'Nevertheless, custom admits an exception in favor of boats engaged in the coast fishery; these
boats, as well as their crews, are free from capture and exempt from all hostilities. The coast-fishing
industry is, in truth, wholly pacific, and of much less importance in regard to the national wealth that it
may produce than maritime commerce or the great fisheries. Peaceful and wholly inoffensive, those
who carry it on, may be called the harvesters of the territorial seas, since they confine themselves to
gathering in the products thereof; they are for the most part poor families who seek in this calling
hardly more than the means of gaining their livelihood.' Again, after observing that there are very few
solemn public treaties which make mention of the immunity of fishing boats in time of war, he says:
'From another point of view the custom which sanctions this immunity is not so general that it can be
considered as making an absolute international rule; but it has been so often put in practice, and,
besides, it accords so well with the rule in use in wars on land, in regard to peasants and
husbandmen, to whom coast fishermen may be likened, that it will doubtless continue to be followed
in maritime wars to come.

This review of the precedents and authorities on the subject appears to us abundantly to demonstrate
that at the present day, by the general consent of the civilized nations of the world, and independently
of any express treaty or other public act, it is an established rule of international law, founded on
considerations of humanity to a poor and industrious order of men, and of the mutual convenience of
belligerent states, that coast fishing vessels, with their implements and supplies, cargoes and crews,
unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are
exempt from capture as prize of war.

The exemption, of course, does not apply to coast fishermen or their vessels if employed for a warlike
purpose, or in such a way as to give aid or information to the enemy; nor when military or naval
operations create a necessity to which all private interests must give way.

Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales
or seals or cod or other fish which are not brought fresh to market, but are salted or otherwise cured
and made a regular article of commerce.

This rule of international law is one which prize courts administering the law of nations are bound to
take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own
government in relation to the matter.
By the practice of all civilized nations, vessels employed only for the purposes of discovery or science
are considered as exempt from the contingencies of war, and therefore not subject to capture. It has
been usual for the government sending out such an expedition to give notice to other powers; but it is
not essential.

To this subject in more than one aspect are singularly applicable the words uttered by Mr. Justice
Strong, speaking for this court: 'Undoubtedly no single nation can change the law of the sea. The law
is of universal obligation and no statute of one or two nations can create obligations for the world. Like
all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not
because it was prescribed by any superior power, but because it has been generally accepted as a
rule of conduct. Whatever may have been its origin, whether in the usages of navigation, or in the
ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent
sanction of those nations who may be said to constitute the commercial world. Many of the usages
which prevail, and which have the force of law, doubtless originated in the positive prescriptions of
some single state, which were at first of limited effect, but which, when generally accepted, became of
universal obligation.'

In the case, each vessel was of a moderate size, such as is not unusual in coast fishing smacks, and
was regularly engaged in fishing on the coast of Cuba. The crew of each were few in number, had no
interest in the vessel, and received, in return for their toil and enterprise, two thirds of her catch, the
other third going to her owner by way of compensation for her use. Each vessel went out from Havana
to her fishing ground, and was captured when returning along the coast of Cuba. The cargo of each
consisted of fresh fish, caught by her crew from the sea, and kept alive on board. Although one of the
vessels extended her fishing trip, we cannot doubt that each was engaged in the coast fishery, and
not in a commercial adventure, within the rule of international law.

The case was adjudged that the capture was unlawful and without probable cause ordered that the
proceeds of the sale of the vessel, together with the proceeds of any sale of her cargo, be restored to
the claimant, with damages and costs.