DIGEST P.I.L Set 1 Held. (Gray, J.). Yes.
Held. (Gray, J.). Yes. Coastal fishing vessels with their cargoes and crews
1. Ware vs Hylton
Facts of the case
This case involved the Treaty of Paris, which established peace in 1783. A
Virginian owed a debt to a British subject. A Virginia law provided for the
confiscation of such debts on the ground the the debt was owed to an
alien enemy. The British subject (actually, his administrator) sued in a
federal court to recover on the bond. The administrator argued that the
Treaty of Paris ensured the collection of such debts.
Question
Does the Treaty of Paris override an otherwise valid state law?
Conclusion
Four of the five justices wrote opinions. It was the practice of the day for
the Court to issue opinions seriatim, or one after another. There was no
"opinion for the Court." Collectively, the justices held that federal courts
had the power to determine the constitutionality of state laws. They
invalidated the Virginia law under the supremacy clause and, in the words
of a distinguished scholar of the period, "established for all time [the
Supreme Court's] power of judicial review of state laws."
2. Paquete Habana
Brief Fact Summary. The argument of the fishermen whose vessels was
seized by the U.S (P) officials was that international law exempted coastal
fishermen from capture as prizes of war.
Synopsis of Rule of Law. The argument of the fishermen whose vessels
was seized by the U.S (P) officials was that international law exempted
coastal fishermen from capture as prizes of war.
Facts. This appeal of a district court decree, which condemned two fishing
vessels and their cargoes as prizes of war, was brought by the owners (D)
of two separate fishing vessels. Each of the vessel running in and out of
Havana and sailing under the Spanish flag was a fishing smack which
regularly engaged in fishing on the coast of Cuba. Inside the vessels were
fresh fish which the crew had caught.
The owners of the vessels were not aware of the existence of a war until
they were stopped by U.S. (P) squadron. No incriminating material like
arms were found on the fishermen and they did not make any attempt to
run the blockade after learning of its existence not did they resist their
arrest. When the owners (D) appealed, they argued that both customary
international law and writings of leading international scholars recognized
an exemption from seizure at wartime of coastal fishing vessels.
Issue. Are coastal fishing vessels with their cargoes and crews excluded
from prizes of war?
4. Co Kim Chan v Valdez Tan Keh
are excluded from prizes of war. The doctrine that exempts coastal
fishermen with their vessels and crews from capture as prizes of war has
been known by the U.S. (P) from the time of the War of Independence
and has been recognized explicitly by the French and British governments.
It is an established rule of international law that coastal fishing vessels
with their equipment and supplies, cargoes and crews, unarmed and
honestly pursuing their peaceful calling of catching and bringing in fish are
exempt from capture as prizes of war. Reversed.
Discussion. Chief Justice Fuller who had a dissenting opinion which was
not published in this casebook argued that the captured vessels were of
such a size and range as to not fall within the exemption. He further
argued that the exemption in any case had not become a customary rule
of international law, but was only an act of grace that had not been
authorized by the President.
3. Kuroda vs. Jalandoni
G.R. L-2662, March 26, 1949
Ponente: Moran, C.J.
Facts:
1. Petitioner Sheginori Kuroda was the former Lt. General of the Japanese
Army and commanding general of the Japanese forces during the
occupation (WWII) in the country. He was tried before the Philippine
Military Commission for War Crimes and other atrocities committed
against military and civilians. The military commission was establish under
Executive Order 68.
2. Petitioner assails the validity of EO 68 arguing it is unconstitutional and
hence the military commission did not have the jurisdiction to try him on
the following grounds:
- that the Philippines is not a signatory to the Hague Convention (War
Crimes)
3. Petitioner likewise assails that the US is not a party of interest in the
case hence the 2 US prosecutors cannot practice law in the Philippines.
Issue: Whether or not EO 68 is constitutional thus the military
tribunal jurisdiction is valid
HELD:
1. EO 68 is constitutional hence the tribunal has jurisdiction to try Kuroda.
EO 68 was enacted by the President and was in accordance with Sec. 3,
Art. 2 of Constitution which renounces war as an instrument of national
policy. Hence it is in accordance with generally accepted principles of
international law including the Hague Convention and Geneva Convention,
and other international jurisprudence established by the UN, including the
principle that all persons (military or civilian) guilty of plan, preparing,
waging a war of aggression and other offenses in violation of laws and
customs of war. The Philippines may not be a signatory to the 2
conventions at that time but the rules and regulations of both are wholly
based on the generally accepted principles of international law. They were
accepted even by the 2 belligerent nations (US and Japan)
2. As to the participation of the 2 US prosecutors in the case, the US is a
party of interest because its country and people have greatly aggrieved by
the crimes which petitioner was being charged of.
3. Moreover, the Phil. Military Commission is a special military tribunal
and rules as to parties and representation are not governed by the rules
of court but the provision of this special law.
Facts of the case: Co Kim Chan had a pending civil case, initiated during
the Japanese occupation, with the Court of First Instance of Manila. After
the Liberation of the Manila and the American occupation, Judge Arsenio
Dizon refused to continue hearings on the case, saying that a
proclamation issued by General Douglas MacArthur had invalidated and
nullified all judicial proceedings and judgments of the courts of the
Philippines and, without an enabling law, lower courts have no jurisdiction
to take cognizance of and continue judicial proceedings pending in the
courts of the defunct Republic of the Philippines (the Philippine
government under the Japanese).
The court resolved three issues:
1. Whether or not judicial proceedings and decisions made during the
Japanese occupation were valid and remained valid even after the
American occupation;
2. Whether or not the October 23, 1944 proclamation MacArthur issued in
which he declared that “all laws, regulations and processes of any other
government in the Philippines than that of the said Commonwealth are
null and void and without legal effect in areas of the Philippines free of
enemy occupation and control” invalidated all judgments and judicial acts
and proceedings of the courts;
3. And whether or not if they were not invalidated by MacArthur’s
proclamation, those courts could continue hearing the cases pending
before them.
Ratio: Political and international law recognizes that all acts and
proceedings of a de facto government are good and valid. The Philippine
Executive Commission and the Republic of the Philippines under the
Japanese occupation may be considered de facto governments, supported
by the military force and deriving their authority from the laws of war.
Municipal laws and private laws, however, usually remain in force unless
suspended or changed by the conqueror. Civil obedience is expected even
during war, for “the existence of a state of insurrection and war did not
loosen the bonds of society, or do away with civil government or the
regular administration of the laws. And if they were not valid, then it
would not have been necessary for MacArthur to come out with a
proclamation abrogating them.
The second question, the court said, hinges on the interpretation of the
phrase “processes of any other government” and whether or not he
intended it to annul all other judgments and judicial proceedings of courts
during the Japanese military occupation.
IF, according to international law, non-political judgments and judicial
proceedings of de facto governments are valid and remain valid even after
the occupied territory has been liberated, then it could not have been
MacArthur’s intention to refer to judicial processes, which would be in
violation of international law.
A well-known rule of statutory construction is: “A statute ought never to
be construed to violate the law of nations if any other possible
construction remains.”
Another is that “where great inconvenience will result from a particular
construction, or great mischief done, such construction is to be avoided,
or the court ought to presume that such construction was not intended by
the makers of the law, unless required by clear and unequivocal words.”
Annulling judgments of courts made during the Japanese occupation
would clog the dockets and violate international law, therefore what
MacArthur said should not be construed to mean that judicial proceedings
are included in the phrase “processes of any other governments.”
In the case of US vs Reiter, the court said that if such laws and
institutions are continued in use by the occupant, they become his and
derive their force from him. The laws and courts of the Philippines did not
become, by being continued as required by the law of nations, laws and
courts of Japan.
It is a legal maxim that, excepting of a political nature, “law once
established continues until changed by some competent legislative power.
IT IS NOT CHANGED MERELY BY CHANGE OF SOVEREIGNTY.” Until, of
course, the new sovereign by legislative act creates a change.
Therefore, even assuming that Japan legally acquired sovereignty over the
Philippines, and the laws and courts of the Philippines had become courts
of Japan, as the said courts and laws creating and conferring jurisdiction
upon them have continued in force until now, it follows that the same
courts may continue exercising the same jurisdiction over cases pending
therein before the restoration of the Commonwealth Government, until
abolished or the laws creating and conferring jurisdiction upon them are
repealed by the said government.
DECISION: Writ of mandamus issued to the judge of the Court of First
Instance of Manila, ordering him to take cognizance of and continue to
final judgment the proceedings in civil case no. 3012.
Summary of ratio:
1. International law says the acts of a de facto government are valid and
civil laws continue even during occupation unless repealed.
2. MacArthur annulled proceedings of other governments, but this cannot
be applied on judicial proceedings because such a construction would
violate the law of nations.
3. Since the laws remain valid, the court must continue hearing the case
pending before it.
***3 kinds of de facto government: one established through rebellion
(govt gets possession and control through force or the voice of the
majority and maintains itself against the will of the rightful government)
through occupation (established and maintained by military forces who
invade and occupy a territory of the enemy in the course of war; denoted
as a government of paramount force)
through insurrection (established as an independent government by the
inhabitants of a country who rise in insurrection against the parent state)
CO KIM CHAM VS VALDEZ TAN KEH
G.R. No. L-5 75 Phil 113, 122 September 17, 1945
CO KIM CHAM (alias CO KIM CHAM), petitioner,
vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First
Instance of Manila, respondents.
Facts:
Petitioner Co Kim Cham had a pending Civil Case with the Court of First
Instance of Manila initiated during the time of the Japanese occupation.
The respondent judge, Judge Arsenio Dizon, refused to continue hearings
on the case which were initiated during the Japanese military occupation
on the ground that the proclamation issued by General MacArthur that “all
laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and
without legal effect in areas of the Philippines free of enemy occupation
and control” had the effect of invalidating and nullifying all judicial
proceedings and judgments of the court of the Philippines during the
Japanese military occupation, and that the lower courts have no
jurisdiction to take cognizance of and continue judicial proceedings
pending in the courts of the defunct Republic of the Philippines in the
absence of an enabling law granting such authority.
Respondent, additionally contends that the government established during
the Japanese occupation were no de facto government.
Issues:
1. Whether or not judicial acts and proceedings of the court made
during the Japanese occupation were valid and remained valid even
after the liberation or reoccupation of the Philippines by the United
States and Filipino forces.
2. Whether or not the October 23, 1944 proclamation issued by General
MacArthur declaring that “all laws, regulations and processes of any
other government in the Philippines than that of the said
Commonwealth are null and void and without legal effect in areas of
the Philippines free of enemy occupation and control” has invalidated
all judgments and judicial acts and proceedings of the courts.
3. Whether or not those courts could continue hearing the cases
pending before them, if the said judicial acts and proceedings were
not invalidated by MacArthur’s proclamation.
Discussions:
 Political and international law recognizes that all acts and
proceedings of a de facto government are good and valid. The
Philippine Executive Commission and the Republic of the Philippines
under the Japanese occupation may be considered de facto
governments, supported by the military force and deriving their
authority from the laws of war. The doctrine upon this subject is thus
summed up by Halleck, in his work on International Law (Vol. 2, p.
444): “The right of one belligerent to occupy and govern the territory
of the enemy while in its military possession, is one of the incidents
of war, and flows directly from the right to conquer. We, therefore,
do not look to the Constitution or political institutions of the
conqueror, for authority to establish a government for the territory
of the enemy in his possession, during its military occupation, nor for
the rules by which the powers of such government are regulated and
limited. Such authority and such rules are derived directly from the
laws war, as established by the usage of the world, and confirmed by
the writings of publicists and decisions of courts — in fine, from the
law of nations. . . . The municipal laws of a conquered territory, or
the laws which regulate private rights, continue in force during
military occupation, excepts so far as they are suspended or changed
by the acts of conqueror. . . . He, nevertheless, has all the powers of
a de facto government, and can at his pleasure either change the
existing laws or make new ones.”
 General MacArthur annulled proceedings of other governments in his
proclamation October 23, 1944, but this cannot be applied on judicial
proceedings because such a construction would violate the law of
nations.
 If the proceedings pending in the different courts of the Islands prior
to the Japanese military occupation had been continued during the
Japanese military administration, the Philippine Executive
Commission, and the so-called Republic of the Philippines, it stands
to reason that the same courts, which had become re-established
and conceived of as having in continued existence upon the
reoccupation and liberation of the Philippines by virtue of the
principle of postliminy (Hall, International Law, 7th ed., p. 516), may
continue the proceedings in cases then pending in said courts,
without necessity of enacting a law conferring jurisdiction upon them
to continue said proceedings. As Taylor graphically points out in
speaking of said principles “a state or other governmental entity,
upon the removal of a foreign military force, resumes its old place
with its right and duties substantially unimpaired. . . . Such political
resurrection is the result of a law analogous to that which enables
elastic bodies to regain their original shape upon removal of the
external force, — and subject to the same exception in case of
absolute crushing of the whole fibre and content.”
Rulings:
1. The judicial acts and proceedings of the court were good and valid.
The governments by the Philippine Executive Commission and the
Republic of the Philippines during the Japanese military occupation
being de facto governments, it necessarily follows that the judicial
acts and proceedings of the court of justice of those governments,
which are not of a political complexion, were good and valid. Those
not only judicial but also legislative acts of de facto government,
which are not of a political complexion, remained good and valid
after the liberation or reoccupation of the Philippines by the
American and Filipino forces under the leadership of General Douglas
MacArthur.
2. The phrase “processes of any other government” is broad and may
refer not only to the judicial processes, but also to administrative or
legislative, as well as constitutional, processes of the Republic of the
Philippines or other governmental agencies established in the Islands
during the Japanese occupation. Taking into consideration the fact
that, as above indicated, according to the well-known principles of
international law all judgements and judicial proceedings, which are
not of a political complexion, of the de facto governments during the
Japanese military occupation were good and valid before and
remained so after the occupied territory had come again into the
power of the titular sovereign, it should be presumed that it was not,
and could not have been, the intention of General Douglas
MacArthur, in using the phrase “processes of any other government”
in said proclamation, to refer to judicial processes, in violation of said
principles of international law.
3. Although in theory the authority of the local civil and judicial
administration is suspended as a matter of course as soon as military
occupation takes place, in practice the invader does not usually take
the administration of justice into his own hands, but continues the
ordinary courts or tribunals to administer the laws of the country
which he is enjoined, unless absolutely prevented, to respect. An
Executive Order of President McKinley to the Secretary of War states
that “in practice, they (the municipal laws) are not usually abrogated
but are allowed to remain in force and to be administered by the
ordinary tribunals substantially as they were before the occupation.
This enlightened practice is, so far as possible, to be adhered to on
the present occasion.” And Taylor in this connection says: “From a
theoretical point of view it may be said that the conqueror is armed
with the right to substitute his arbitrary will for all pre-existing forms
of government, legislative, executive and judicial. From the stand-
point of actual practice such arbitrary will is restrained by the
provision of the law of nations which compels the conqueror to
continue local laws and institution so far as military necessity will
 permit.” Undoubtedly, this practice has been adopted in order that
the ordinary pursuits and business of society may not be
unnecessarily deranged, inasmuch as belligerent occupation is
essentially provisional, and the government established by the
occupant of transient character.
5. Ichong vs Hernandez
FACTS:
The Legislature passed R.A. 1180 (An Act to Regulate the Retail
Business). Its purpose was to prevent persons who are not citizens of the
Phil. from having a stranglehold upon the people’s economic life.
• a prohibition against aliens and against associations, partnerships, or
corporations the capital of which are not wholly owned by
Filipinos, from engaging directly or indirectly in the retail trade
• aliens actually engaged in the retail business on May 15, 1954 are
allowed to continue their business, unless their licenses are
forfeited in accordance with law, until their death or voluntary
retirement. In case of juridical persons, ten years after the
approval of the Act or until the expiration of term.
Citizens and juridical entities of the United States were exempted from
this Act.
• provision for the forfeiture of licenses to engage in the retail business
for violation of the laws on nationalization, economic control
weights and measures and labor and other laws relating to
trade, commerce and industry.
• provision against the establishment or opening by aliens actually
engaged in the retail business of additional stores or branches
of retail business
Lao Ichong, in his own behalf and behalf of other alien residents,
corporations and partnerships affected by the Act, filed an action to
declare it unconstitutional for the ff: reasons:
1. it denies to alien residents the equal protection of the laws and
deprives them of their liberty and property without due process
2. the subject of the Act is not expressed in the title
3. the Act violates international and treaty obligations
4. the provisions of the Act against the transmission by aliens of their
retail business thru hereditary succession
ISSUE: WON the Act deprives the aliens of the equal protection of the
laws.
HELD: The law is a valid exercise of police power and it does not deny the
aliens the equal protection of the laws. There are real and actual, positive
and fundamental differences between an alien and a citizen, which fully
justify the legislative classification adopted.
RATIO:
The equal protection clause does not demand absolute equality among
residents. It merely requires that all persons shall be treated alike, under
like circumstances and conditions both as to privileges conferred and
liabilities enforced.
The classification is actual, real and reasonable, and all persons of one
class are treated alike.
The difference in status between citizens and aliens constitutes a basis for
reasonable classification in the exercise of police power.
Official statistics point out to the ever-increasing dominance and control
by alien of the retail trade. It is this domination and control that is the
legislature’s target in the enactment of the Act.
The mere fact of alienage is the root cause of the distinction between the
alien and the national as a trader. The alien is naturally lacking in that
spirit of loyalty and enthusiasm for the Phil. where he temporarily stays
and makes his living. The alien owes no allegiance or loyalty to the State,
and the State cannot rely on him/her in times of crisis or emergency.
While the citizen holds his life, his person and his property subject to the
needs of the country, the alien may become the potential enemy of the
State.
The alien retailer has shown such utter disregard for his customers and
the people on whom he makes his profit. Through the illegitimate use of
pernicious designs and practices, the alien now enjoys a monopolistic
control on the nation’s economy endangering the national security in
times of crisis and emergency.
6. Gonzales vs Hechanova
FACTS:
Exec. Secretary Hechanova authorised the importation of foreign rice to
be purchased from private sources. Gonzales filed a petition opposing the
said implementation because RA No. 3542 which allegedly repeals or
amends RA No. 2207, prohibits the importation of rice and corn "by the
Rice and Corn Administration or any other government agency."
Respondents alleged that the importation permitted in RA 2207 is to be
authorized by the President of the Philippines, and by or on behalf of the
Government of the Philippines. They add that after enjoining the Rice and
Corn administration and any other government agency from importing rice
and corn, S. 10 of RA 3542 indicates that only private parties may import
rice under its provisions. They contended that the government has already
constitute valid executive agreements with Vietnam and Burma, that in
case of conflict between RA 2207 and 3542, the latter should prevail and
the conflict be resolved under the American jurisprudence.
ISSUE:
W/N the executive agreements may be validated in our courts.
RULING:
No. The Court is not satisfied that the status of said tracts as alleged
executive agreements has been sufficiently established. Even assuming
that said contracts may properly considered as executive agreements, the
same are unlawful, as well as null and void, from a constitutional
viewpoint, said agreements being inconsistent with the provisions of
Republic Acts Nos. 2207 and 3452. Although the President may, under the
American constitutional system enter into executive agreements without
previous legislative authority, he may not, by executive agreement, enter
into a transaction which is prohibited by statutes enacted prior thereto.
Under the Constitution, the main function of the Executive is to enforce
laws enacted by Congress. He may not interfere in the performance of the
legislative powers of the latter, except in the exercise of his veto power.
He may not defeat legislative enactments that have acquired the status of
law, by indirectly repealing the same through an executive agreement
providing for the performance of the very act prohibited by said laws.
7. North Atlantic Fisheries Arbitration
8. North Sea Continental Shelf Cases
9. Asylum Case
Overview:
Colombia granted asylum to a Peruvian, accused of taking part in a
military rebellion in Peru. Was Colombia entitled to make a unilateral and
definitive qualification of the offence (as a political offence) in a manner
binding on Peru and was Peru was under a legal obligation to provide safe
passage for the Peruvian to leave Peru?
Facts of the Case:
Peru issued an arrest warrant against Victor Raul Haya de la Torre “in
respect of the crime of military rebellion” which took place on October 3,
1949, in Peru. 3 months after the rebellion, Torre fled to the Colombian
Embassy in Lima, Peru. The Colombian Ambassador confirmed that Torre
was granted diplomatic asylum in accordance with Article 2(2) of the
Havana Convention on Asylum of 1928 and requested safe passage for
Torre to leave Peru. Subsequently, the Ambassador also stated Colombia
had qualified Torre as a political refugee in accordance with Article 2
Montevideo Convention on Political Asylum of 1933 (note the term refugee
is not the same as the Refugee Convention of 1951). Peru refused to
accept the unilateral qualification and refused to grant safe passage.
Questions before the Court:
(1) Is Colombia competent, as the country that grants asylum, to
unilaterally qualify the offence for the purpose of asylum under treaty law
and international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a
guarantee of safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum
of 1928 (hereinafter called the Havana Convention) when it granted
asylum and is the continued maintenance of asylum a violation of the
treaty?
The Court’s Decision:
Relevant Findings of the Court:
(1) Is Colombia competent, as the country that grants asylum, to
unilaterally qualify the offence for the purpose of asylum under treaty law
and international law?
1. The court stated that in the normal course of granting diplomatic
asylum a diplomatic representative has the competence to make
a provisional qualification of the offence (for example, as a political
offence) and the territorial State has the right to give consent to this
qualification. In the Torre’s case, Colombia has asserted, as the State
granting asylum, that it is competent to qualify the nature of the offence
in a unilateral and definitive manner that is binding on Peru. The court had
to decide if such a decision was binding on Peru either because of treaty
law (in particular the Havana Convention of 1928 and the Montevideo
Convention of 1933), other principles of international law or by way of
regional or local custom.
2. The court held that there was no expressed or implied right of unilateral
and definitive qualification of the State that grants asylum under the
Havana Convention or relevant principles of international law (p. 12, 13).
The Montevideo Convention of 1933, which accepts the right of unilateral
qualification, and on which Colombia relied to justify its unilateral
qualification, was not ratified by Peru. The Convention, per say, was not
binding on Peru and considering the low numbers of ratifications the
provisions of the latter Convention cannot be said to reflect customary
international law (p. 15).
3. Colombia also argued that regional or local customs support the
qualification. The court held that the burden of proof on the existence of
an alleged customary law rests with the party making the allegation:
“The Party which relies on a custom of this kind must prove that this
custom is established in such a manner that it has become binding on the
other Party… (that) it is in accordance with a (1) constant and uniform
usage (2) practiced by the States in question, and that this usage is (3)
the expression of a right appertaining to the State granting asylum
(Colombia) and (4) a duty incumbent on the territorial State (in this case,
Peru). This follows from Article 38 of the Statute of the Court, which refers
to international custom “as evidence of a general practice accepted as
law(text in brackets added).”
4. The court held that Colombia did not establish the existence of a
regional custom because it failed to prove consistent and uniform usage of
the alleged custom by relevant States. The fluctuations and contradictions
in State practice did not allow for the uniform usage (see also Mendelson,
1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations
of State practice). The court also reiterated that the fact that a particular
State practice was followed because of political expediency and not
because of a belief that the said practice is binding on the State by way of
a legal obligation (opinio juris) is detrimental to the formation of a
customary law (see North Sea Continental Shelf Cases and Lotus Case for
more on opinio juris):
“[T]he Colombian Government has referred to a large number of
particular cases in which diplomatic asylum was in fact granted and
respected. But it has not shown that the alleged rule of unilateral and
definitive qualification was invoked or … that it was, apart from
conventional stipulations, exercised by the States granting asylum as a
right appertaining to them and respected by the territorial States as a
duty incumbent on them and not merely for reasons of political
expediency. The facts brought to the knowledge of the Court disclose so
much uncertainty and contradiction, so much fluctuation and discrepancy
in the exercise of diplomatic asylum and in the official views expressed on
various occasions, there has been so much inconsistency in the rapid
succession of conventions on asylum, ratified by some States and rejected
by others, and the practice has been so much influenced by considerations
of political expediency in the various cases, that it is not possible to
discern in all this any constant and uniform usage, mutually accepted as
law, with regard to the alleged rule of unilateral and definitive qualification
of the offence.”
5. The court held that even if Colombia could prove that such a regional
custom existed, it would not be binding on Peru, because Peru “far from
having by its attitude adhered to it, has, on the contrary, repudiated it by
refraining from ratifying the Montevideo Conventions of 1933 and 1939,
which were the first to include a rule concerning the qualification of the
offence [as “political” in nature] in matters of diplomatic asylum.” (See in
this regard, the lesson on persistent objectors. Similarly in the North Sea
Continental Shelf Cases the court held ‘in any event the . . . rule would
appear to be inapplicable as against Norway in as much as she had always
opposed any attempt to apply it to the Norwegian coast’.)
6. The court concluded that Colombia, as the State granting asylum, is not
competent to qualify the offence by a unilateral and definitive decision,
binding on Peru.
(2) In this specific case, was Peru, as the territorial State, bound to give a
guarantee of safe passage?
7. The court held that there was no legal obligation on Peru to grant safe
passage either because of the Havana Convention or customary law. In
the case of the Havana Convention, a plain reading of Article 2 results in
an obligation on the territorial state (Peru) to grant safe passage only
after it requests the asylum granting State (Colombia) to send the person
granted asylum outside its national territory (Peru). In this case the
Peruvian government had not asked that Torre leave Peru. On the
contrary, it contested the legality of asylum granted to him and refused to
grant safe conduct.
8. The court looked at the possibility of a customary law emerging from
State practice where diplomatic agents have requested and been granted
safe passage for asylum seekers, before the territorial State could request
for his departure. Once more, the court held that these practices were a
result of a need for expediency and other practice considerations over an
existence of a belief that the act amounts to a legal obligation (see
paragraph 4 above).
“There exists undoubtedly a practice whereby the diplomatic
representative who grants asylum immediately requests a safe conduct
without awaiting a request from the territorial state for the departure of
the refugee…but this practice does not and cannot mean that the State, to
whom such a request for safe-conduct has been addressed, is legally
bound to accede to it.”
(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention
when it granted asylum and is the continued maintenance of asylum a
violation of the treaty?
9. Article 1 of the Havana Convention states that “It is not permissible for
States to grant asylum… to persons accused or condemned for common
crimes… (such persons) shall be surrendered upon request of the local
government.”
10. In other words, the person-seeking asylum must not be accused of a
common crime (for example, murder would constitute a common crime,
while a political offence would not).The accusations that are relevant are
those made before the granting of asylum. Torre’s accusation related to a
military rebellion, which the court concluded was not a common crime and
as such the granting of asylum complied with Article 1 of the Convention.
11. Article 2 (2) of the Havana Convention states that “Asylum granted to
political offenders in legations, warships, military camps or military
aircraft, shall be respected to the extent in which allowed, as a right or
through humanitarian toleration, by the usages, the conventions or the
laws of the country in which granted and in 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.
10. Nicaragua vs US
Year of Decision: 1986.
Note: This post will discuss the International Court of Justice’s (ICJ)
discussions on the use of force and self-defence. If you would like to read
about the impact of the Nicaragua judgement on customary international
law or about the Court’s discussions relating to the multilateral treaty
reservation of the United States please click here.
For a short-chart on some of the points discussed here, click here, but
please note that this short-chart must be used in conjunction with the
blog. Nucaragua vs United States (Full diagram in PDF)
Overview:
The case involved military and paramilitary activities carried out by the
United States against Nicaragua from 1981 to 1984. Nicaragua asked the
Court to find that these activities violated international law.
Facts of the Case:
In July 1979, the Government of President Somoza was replaced by a
government installed by Frente Sandinista de Liberacion Nacional (FSLN).
Supporters of the former Somoza Government and former members of
the National Guard opposed the new government. The US – initially
supportive of the new government – changed its attitude when, according
to the United States, it found that Nicaragua was providing logistical
support and weapons to guerrillas in El Salvador. In April 1981 the United
States stopped its aid to Nicaragua and in September 1981, according to
Nicaragua, the United States “decided to plan and undertake activities
directed against Nicaragua”.
The armed activities against the new Government was carried out mainly
by (1) Fuerza Democratica Nicaragüense (FDN), which operated along the
border with Honduras, and (2)Alianza Revolucionaria Democratica (ARDE),
which operated along the border with Costa Rica.Initial US support to
these groups fighting against the Nicaraguan Government (called
“contras”) was covert. Later, the United States officially acknowledged its
support (for example: In 1983 budgetary legislation enacted by the United
States Congress made specific provision for funds to be used by United
States intelligence agencies for supporting “directly or indirectly military
or paramilitary operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in control of
the contras, the United States devised their strategy and directed their
tactics, and that the contras were paid for and directly controlled by the
United States. Nicaragua also alleged that some attacks against Nicaragua
were carried out, directly, by the United States military – with the aim to
overthrow the Government of Nicaragua. Attacks against Nicaragua
included the mining of Nicaraguan ports, and other attacks on ports, oil
installations, and a naval base. Nicaragua alleged that aircrafts belonging
to the United States flew over Nicaraguan territory to gather intelligence,
supply to the contras in the field, and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after
refusing to accept the ICJ’s jurisdiction to decide the case. The United
States at the jurisdictional phase of the hearing, however, stated that it
relied on an inherent right of collective self-defence guaranteed in A. 51 of
the UN Charter when it provided “upon request proportionate and
appropriate assistance…” to Costa Rica, Honduras, and El Salvador in
response to Nicaragua’s acts of aggression against those countries (paras
126, 128).
F1: Map of Nicaragua, Costa Rica, Honduras and El Salvador. Source:
Google Earth
Questions before the Court:
1. Did the United States violate its customary international law
obligation not to intervene in the affairs of another State, when
it trained, armed, equipped, and financed the contra forces or
when it encouraged, supported, and aided the military and
paramilitary activities against Nicaragua?
2. Did the United States violate its customary international law
obligation not to use force against another State, when it
directly attacked Nicaragua in 1983 and 1984 and when its
activities in point (1) above resulted in the use of force?
3. Can the military and paramilitary activities that the United
States undertook in and against Nicaragua be justified as
collective self-defence?
4. Did the United States breach its customary international law
obligation not to violate the sovereignty of another State, when
it directed or authorized its aircrafts to fly over the territory of
Nicaragua and because of acts referred to in (2) above?
5. Did the United States breach its customary international law
obligations not to violate the sovereignty of another State, not
to intervene in its affairs, not to use force against another State
and not to interrupt peaceful maritime commerce, when it laid
mines in the internal waters and in the territorial sea of
Nicaragua?
The Court’s Decision:
The United States violated customary international law in relation to (1),
(2), (4) and (5) above. On (3), the Court found that the United States
could not rely on collective self-defence to justify its use of force against
Nicaragua.
Relevant Findings of the Court:
1. The Court held that the United States violated its customary
international law obligation not to use force against another State
when its activities with the contras resulted in the threat or use of
force (see paras 191-201).
The Court held that:
 The prohibition on the use of force is found both in Article 2(4)
of the Charter of the United Nations (UN Charter) and in
customary international law.
 In a controversial finding the Court sub-classified the use of
force as:
(1) “most grave forms of the use of force” (i.e. those that constitute an
armed attack); and
(2) “other less grave forms” of the use of force (i.e. organizing,
instigating, assisting, or participating in acts of civil strife and terrorist
acts in another State – when the acts referred to involve a threat or use of
force, but not amounting to an armed attack). (Para 191),
 The United States violated the customary international law
prohibition on the use of force when it laid mines in Nicaraguan
ports. It also violated this prohibition when it attacked
Nicaraguan ports, oil installations, and a naval base (see
below). The United States could only justify its action on the
basis of collective self-defence, if certain criteria were met
(these criteria are discussed below).
 The United States violated the customary international law
prohibition on the use of force when it assisted the contras by
“organizing or encouraging the organization of irregular forces
and armed bands… for incursion into the territory of another
state” and participated “in acts of civil strife…in another
State” and when these acts involved the threat or use of force.
 The supply of funds to the contras did not violate the prohibition
on the use of force. On the contrary, Nicaragua had previously
argued before the Court that the United States determined the
timing of offensives against Nicaragua when it provided funds to
thecontras. The Court held that “…it does not follow that each
provision of funds by the United States was made to set in
motion a particular offensive, and that that offensive was
planned by the United States.” The Court held further that the
arming and training of the contras and the supply of funds, in
itself, only amounted to acts of intervention in the internal
affairs of Nicaragua and did not violate the prohibition on the
use of force (para 227) (again, this aspect will be discussed in
detail below).
2. The Court held that the United States violated its customary
international law obligation not to use force against another State
when it directly attacked Nicaragua in 1983 and 1984(see paras 187
– 201).
Note: A controversial but interesting aspect of the Court’s judgement was
its definition of an armed attack. The Court held that an armed attack
included:
(1) action by regular armed forces across an international border; and
(2) “the sending by or on behalf of a State of armed bands, groups,
irregulars or mercenaries, which carry out acts of (sic) armed force
against another State of such gravity as to amount to (inter alia) an actual
armed attack conducted by regular forces, or its (the State’s)
substantial involvement therein”.
Note also that that he second point somewhat resembles Article 3(g) of
the UNGA Resolution 3314 (XXIX) on the Definition of Aggression.
The Court further held that:
 Mere frontier incidents will not considered as armed attacks,
unless, because of its scale and effects, it would have been
classified as an armed attack had it been carried out by regular
forces.
 Assistance to rebels by providing weapons or logistical support
did not constitute an armed attack. Instead, it can be regarded
as a threat or use of force or an intervention in the internal or
external affairs of other States (see paras 195, 230).
 Under Article 51 of the UN Charter and under CIL – self-defence
is only available against a use of force that amounts to an
armed attack (para 211).
Note: In in the ICJ’s Case Concerning Oil Platforms and the ICJ’s
Advisory Opinion on the Legal Consequences of of the Construction of a
Wall in the Occupied Palestinian Territory (hereinafter called the Palestine
wall case) the ICJ confirmed the definition of an “armed attack” as
proposed in the Nicaragua case. Draft Articles on State
Responsibility, prepared by the International Law Commission, provides
significant guidance as to when acts of non-State actors may be attributed
to States. These articles, together with recent State practice relating
attacks on terrorists operating from other countries may have widened the
scope of an armed attack, and consequently, the right of self defence,
envisaged by the ICJ. (for example, see discussion surrounding the United
States’ attacks in Afghanistan and Iraq) See also a paper by Max Plank
Institute on this topic (2017).
F 2. The most serious use of force and its consequences. Full diagram is
here.
3. The Court held that the United States could not justify its
military and paramilitary activities on the basis of collective self-
defence.
Note that Article 51 of the UN Charter sets out the treaty based
requirements on the exercise of the right of self-defense. It states:
“Nothing in the present Charter shall impair the inherent
right of individual or collectiveself-defence if an armed
attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain
international peace and security. Measures taken by Members in the
exercise of this right of self-defence shall be immediately reported to
the Security Council.”
The Court held that:
 Customary international law allows for exceptions to the
prohibition on the use of force, which includes the right to
individual or collective self-defence (see here for a difference
between individual and collective self defense). The United
States, at an earlier stage of the proceedings, had
also agreed that the UN Charter acknowledges the existence of
this customary international law right when it talks of
the “inherent” right under Article 51 of the Charter (para.193).
 When a State claims that it used force in collective self-defence,
the Court would examine the following:
(1) Whether the circumstances required for the exercise of self-defence
existed; and
(2) Whether the steps taken by the State, which was acting in self-
defence, corresponds to the requirements of international law.
 Under international law, several requirements must be met for a
State to exercise the right of individual or collective self-
defence:
(1) A State must have been the victim of an armed attack;
(2) That State must declare itself as a victim of an armed attack. The
assessment on whether an armed attack had taken place or not, is done
by the State who was subjected to the attack. A third State cannot
exercise a right of collective self-defence based that third State’s own
assessment;
(3) In the case of collective self-defence, the victim State must
request for assistance. The Court held that “there is no rule permitting the
exercise of collective self-defence in the absence of a request by the State
which regards itself as the victim of an armed attack”;
(4) A State that is attacked, does not, under customary international law,
have the same obligation as under Article 51 of the UN Charter to report
to the Security Council that an armed attack happened – but the Court
held that “the absence of a report may be one of the factors indicating
whether the State in question was itself convinced that it was acting in
self-defence” (see paras 200, 232 -236).
“…Whatever influence the Charter may have had on customary
international law in these matters, it is clear that in customary
international law it is not a condition of the lawfulness of the use of force
in self-defence that a procedure so closely dependent on the content of a
treaty commitment and of the institutions established by it, should have
been followed. On the other hand, if self-defence is advanced as a
justification for measures which would otherwise be in breach both of the
principle of customary international law and of that contained in the
Charter, it is to be expected that the conditions of the Charter should
be respected. Thus for the purpose of enquiry into the customary law
position, the absence of a report may be one of the factors indicating
whether the State in question was itself convinced that it was acting in
self-defence (See paras 200, 232 -236)”.
 The Court, then, looked extensively into the conduct of
Nicaragua, El Salvador, Costa Rica, and Honduras to
determine if (1) an armed attack was undertaken by Nicaragua
against the three countries, which in turn would (2) necessitate
those countries to act in self-defence against Nicaragua (paras
230 – 236). The Court noted that (1) none of the countries who
were allegedly subject to an armed attack by Nicaragua
declared themselves as victims of an armed attack; (2) they did
not request assistance from the United States to exercise its
right of self-defence; (3) the United States did not claim that
when it used force, it was acting under Article 51 of the UN
Charter; and (4) the United States did not report that it was
acting in self-defense to the Security Council. The Court
concluded that, based on the above, the United States cannot
justify its use of force as collective self-defence.
 In any event, the Court held that the criteria relating to
necessity and proportionality, that is required to be met when
using force in self-defence – were also not fulfilled (para 237).
4. The Court held that the United States breached its CIL
obligation not to intervene in the affairs of another State, when it
trained, armed, equipped and financed the contra forces or
encouraged, supported and aided the military and paramilitary
activities against Nicaragua.
The Court held that:
 The principle of non-intervention requires that every State has a
right to conduct its affairs without outside interference. In other
words, the principle “…forbids States or groups of States to
intervene directly or indirectly in internal or external affairs of
other States.” This is a corollary of the principle of sovereign
equality of States. The Court held that:
“A prohibited intervention must accordingly be one bearing on matters in
which each State is permitted, by the principle of State sovereignty to
decide freely. One of these is the choice of a political, economic, social
and cultural system, and the formulation of foreign policy. Intervention is
wrongful when it uses methods of coercion in regard to such choices,
which must remain free ones. The element of coercion, which defines, and
indeed forms the very essence of, prohibited intervention, is particularly
obvious in the case of an intervention which uses force, either in the direct
form of military action, or in the indirect form of support for subversive or
terrorist armed activities within another State (para 205).”
 Nicaragua stated that the activities of the United States were
aimed to overthrow the government of Nicaragua, to
substantially damage the economy and to weaken the political
system with the aim to coerce the Government of Nicaragua to
accept various political demands of the United States. The Court
concluded that:
“…first, that the United States intended, by its support of the contras, to
coerce the Government of Nicaragua in respect of matters in which each
State is permitted, by the principle of State sovereignty, to decide freely
(see paragraph 205 above) ; and secondly that the intention of the
contras themselves was to overthrow the present Government of
Nicaragua… The Court considers that in international law, if one State,
with a view to the coercion of another State, supports and assists armed
bands in that State whose purpose is to overthrow the government of that
State, that amounts to an intervention by the one State in the internal
affairs of the other, whether or not the political objective of the State
giving such support and assistance is equally far reaching.”
 The financial support, training, supply of weapons, intelligence
and logistic support given by the United States to the contras
violated the principle of non-interference. “…(N)o such general
right of intervention, in support of an opposition within another
State, exists in contemporary international law”, even if such a
request for assistance is made by an opposition group of that
State (see para 246 for more).
F 3. The prohibition on non intervention. For full diagram, click here.
 However, in a controversial finding, the Court held that the
United States did not devise the strategy, direct the tactics of
the contras or exercise control on them in manner so as to
make their acts committed in violation of international law
imputable to the United States (see in this respect “Determining
US responsibility for contra operations under international law”
81 AMJIL 86). The Court concluded that “a number of military
and paramilitary operations of the contras were decided and
planned, if not actually by United States advisers, then at least
in close collaboration with them, and on the basis of the
intelligence and logistic support which the United States was
able to offer, particularly the supply aircraft provided to the
contras by the United States” but not all contra operations
reflected strategy and tactics wholly devised by the United
States.
“…the various forms of assistance provided to the contras by the United
States have been crucial to the pursuit of their activities, but is insufficient
to demonstrate their complete dependence on United States aid. On the
other hand, it indicates that in the initial years of United States assistance
the contra force was so dependent. However, whether the United States
Government at any stage devised the strategy and directed the tactics of
the contras depends on the extent to which the United States made use of
the potential for control inherent in that dependence. The Court already
indicated that it has insufficient evidence to reach a finding on this point.
It is a fortiori unable to determine that the contra force may be equated
for legal purposes with the forces of the United States…The Court has
taken the view (paragraph 110 above) that United States participation,
even if preponderant or decisive, in the financing, organizing, training,
supplying and equipping of the contras, the selection of its military or
paramilitary targets, and the planning of the whole of its operation, is still
insufficient in itself, on the basis of the evidence in the possession of the
Court, for the purpose of attributing to the United States the acts
committed by the contras in the course of their military or paramilitary
operations in Nicaragua. All the forms of United States participation
mentioned above, and even the general control by the respondent State
over a force with a high degree of dependency on it, would not in
themselves mean, without further evidence, that the United States
directed or enforced the perpetration of the acts contrary to human rights
and humanitarian law alleged by the applicant State. Such acts could well
be committed by members of the contras without the control of the United
States. For this conduct to give rise to legal responsibility of the United
States, it would in principle have to be proved that that State had
effective control of the military or paramilitary.”
 Interesting, however, the Court also held that providing
“…humanitarian aid to persons or forces in another country,
whatever their political affiliations or objectives, cannot be
regarded as unlawful intervention, or as in any other way
contrary to international law” (para 242).
 In the event one State intervenes in the affairs of another
State, the victim State has a right to intervene in a manner that
is short of an armed attack (210).
“While an armed attack would give rise to an entitlement to collective self-
defence, a use of force of a lesser degree of gravity cannot as the Court
has already observed (paragraph 211 above) produce any entitlement to
take collective countermeasures involving the use of force. The acts of
which Nicaragua is accused, even assuming them to have been
established and imputable to that State, could only have justified
proportionate counter-measures on the part of the State which had been
the victim of these acts, namely El Salvador, Honduras or Costa Rica.
They could not justify counter-measures taken by a third State, the United
States, and particularly could not justify intervention involving the use of
force.”
F 4. The less grave forms of use of force and its consequences. Full
diagram is here.
5. The United States violated its customary international law
obligation not to violate the sovereignty of another State, when it
directed or authorized its aircrafts to fly over Nicaraguan territory
and when it laid mines in the internal waters of Nicaragua and its
territorial sea.
 The Court examined evidence and found that in early 1984
mines were laid in or close to ports of the territorial sea or
internal waters of Nicaragua “by persons in the pay or acting ion
the instructions” of the United States and acting under its
supervision with its logistical support. The United States did not
issue any warning on the location or existence of mines and this
resulted in injuries and increases in maritime insurance rates.
 The Court found that the United States also carried
out high-altitude reconnaissance flights over Nicaraguan
territory and certain low-altitude flights, complained of as
causing sonic booms. It held that a State’s sovereignty extends
to its internal waters, its territorial sea, and the airspace above
its territory. The United States violated customary international
law when it laid mines in the territorial sea and internal waters
of Nicaragua and when it carried out unauthorised overflights
over Nicaraguan airspace by aircrafts that belong to or was
under the control of the United States..
11. RIGHT OF PASSAGE OVER INDIAN TERRITORY
12. ANGLO-NORWEGIAN FISHERIES CASE
13. WIMBLEDON CASE – (PLUS PDF)
The case of the S.S. Wimbledon is all about sovereignty.
The Facts
In 1923, the situation in international law (particularly as regards
international treaty making) was struggling to come to terms with the
concept of state sovereignty. How could a state be completely
sovereign, yet remain bound to some higher “authority” in the
form of a treaty signed with another sovereign state?
The situation in this case regards the Treaty of Versailles (1919) and
German sovereignty. The British ship, the S.S. Wimbledon (owned by a
French company) attempted to carry munitions and supplies to Poland as
they fought a war with Russia. Germany refused the boat access through
the Kiel Canal. The canal is in German territory. Germany was a neutral
party in the war and it did not wish to support either side. The
application was made to the Permanent Court of International Justice
(PCIJ) to gain damages for lost time and money in the transport of the
goods.
The Applicants
How can one possibly argue against Article 380? The applicants
submitted the request before the PCIJ on the grounds of wrongfulness by
German authorities when they refused access to the ship. The Neutrality
Orders issued by Germany, were defined as inconsistant with Article 380
of the Treaty of Versailles. “The Kiel Canal and its approaches shall
be maintained free and open to the vessels of commerce and war
of all nations at peace with Germany on terms of entire equality.”
This article has an uncomprimising tone, The boat was surely allowed
to pass on this basis?
The respondents
Surely the sovereignty of Germany would allow her to protect her
neutrality? The agent for Germany argued that Germany was
sovereign over her own lands. The Article should not compromise her
sovereignty or her sovereign right to neutrality. Boats could be refused
access on many grounds, neutrality should be one.
Jurisprudence
As we can see, sovereignty is at the heart of the case. The judgement in
the “Wimbledon” case was made in 1923 and has been used as precedent
ever since.
Howcan we apply the principle of sovereignty to our modern world
(with international organisations etc)?
Is the case out of date?
Should a state only be bound by a treaty only while the treaty
provides fruitful results (or until circumstances fundamentally
change)?
We wish to prompt questions in this summary.
The judgement – the court ruled in favour of the applicants. Treaty
making is an attribute of sovereignty, Germany (and all states), although
sovereign are without doubt bound to the treaties they sign.
14. BARCELONA TRACTION CASE (PLUS PDF)
FACTS
Par. 1: In 1958, the Belgian government filed with the ICJ an Application
against the Spanish government seeking reparation for damage allegedly
caused to the Barcelona Traction, Light and Power Company, Limited, on
account of acts said to be contrary to international law committed by
organs of the Spanish state.
Par. 2: On March 15, 1963, the Spanish Government raised four
preliminary objections to the Belgian Application.
Par. 3: a. The discontinuance, under Art. 69, par. 2, of the Court’s Rules,
of previous proceedings relative to the same events in Spain, disentitled
the Belgian government from bringing the present proceedings.
b. even if this was not the case, the Court was not competent,
because the necessary jurisdictional basis requiring Spain to
submit to the jurisdiction of the Court did not eist.
c. the claim is inadmissible because the Belgian Government
lacks any jus standi to intervene or make a judicial claim on
behalf of Belgian interests in a Canadian company, assuming
that the Belgian character of such interests were established,
which is denied by the Spanish government.
d. even if the Belgian Government has the necessary jus standi,
the claim still remains inadmissible because local remedies in
respect of the acts complained were not exhausted.
Par. 8: the Barcelona Traction, Light and Power Company, Limited, is a
holding company incorporated in 1911 in Toronto (Canada), where it has
its head office.
Par. 9: According to the Belgian Government, some years after the First
World War Barcelona Traction’s share capital came to be very largely held
by Belgian nationals- natural or juristic persons – and a very high
percentage of shares has since then continuously belonged to Belgian
nationals.
Par. 11: In 193, the servicing of the Barcelona Traction bonds was
suspended on account of the Spanish Civil War.
Par. 12: In 1945, Barcelona Traction proposed a plan of compromise
which provided for the reimbursement of the sterling debt.
Par. 13: On 9 February 1948 three Spanish holders of recently acquired
Barcelona Traction sterling bonds petitioned the court of Reus (Province of
Tarragona) for a declaration adjudging the company bankrupt, on account
of failure to pay the interest on the bonds.
Par. 15: .
Par. 15: Proceedings in Spain to contest the bankruptcy judgment and the
related decisions were instituted by Barcelona Traction, National Trust, the
subsidiary companies and their directors or management personnel.
Par. 17: In June 1949, on an application by the Namel company, with the
intervention of the Genora company, the Barcelona court of appeal gave a
judgment making it possible for the meeting of creditors to be convened
for the election of the trustees in bankruptcy, by excluding the necessary
procedure from the suspensive effect of the motion contesting jurisdiction
Par. 19: After the bankruptcy declaration, representations were made to
the Spanish Government by the British, Canadian, United States and
Belgian Governments.
Par. 22: The United States Government made representations to the
Spanish Government on behalf of Barcelona Traction in a note of 22 July
1949, in support of a note submitted by the Canadian Government the
previous day.
Par. 22: The Belgian Government considers that the United States
Government was motivated by a more general concern to secure equitable
treatment of foreign investments in Spain.
Par. 24: The Belgian government continued its diplomatic intervention
until the rejection by the Spanish Government of a Belgian proposa1 for
submission to arbitration (end of 1951).
Par. 25 (p. 12-14): Belgian government application
Par. 25 (P. 14-15): Spanish government counter-memorial
Page 16: Side of the Belgian Government
RULING:
Par. 30: The States which the present case principally concerns are
Belgium, the national State of the alleged shareholders, Spain, the State
whose organs are alleged to have committed the unlawful acts complained
of, and Canada, the State under whose laws Barcelona Traction was
incorporated and in whose territory it has its registered office ("head
office" in the terms of the by-laws of Barcelona Traction).
Par. 32: it is logical that the Court should first address itself to what was
originally presented as the subject-matter of the third preliminary
objection: namely the question of the right of Belgium to exercise
diplomatic protection of Belgian shareholders in a company which is a
juristic entity incorporated in Canada, the measures complained of having
been taken in relation not to any Belgian national but to the company
itself.
33. When a State admits into its territory foreign investments or foreign
nationals, whether natural or juristic persons, it is bound to extend to
them the protection of the law and assumes obligations concerning the
treatment to be afforded them. These obligations, however, are neither
absolute nor unqualified. In particular, an essential distinction should be
drawn between the obligations of a State towards the international
community as a whole, and those arising vis-à-vis another State in the
field of diplomatic protection. By their very nature the former are the
concern of al1 States. In view of the importance of the rights involved, al1
States can be held to have a legal interest in their protection; they are
obligations erga omnes.
34. Such obligations derive, for example, in contemporary international
law, from the outlawing of acts of aggression, and of genocide, as also
from the principles and rules concerning the basic rights of the human
person, including protection from slavery and racial discrimination. Some
of the corresponding rights of protection have entered into the body of
general international law (Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23); others are conferred by international
instruments of a universal or quasi-universal character.
Par. 36: It follows that the same question is determinant in respect of
Spain's responsibility towards Belgium. Responsibility is the necessary
corollary of a right. In the absence of any treaty on the subject between
the Parties, this essential issue has to be decided in the light of the
general rules of diplomatic protection.
Par. 38: International law has had to recognize the corporate entity as an
institution created by States in a domain essentially within their domestic
jurisdiction.
15. DIVERSION OF WATER FROM THE MEUSE PARTIES
The Netherlands- Belgium.
DOCUMENT INSTITUTING PROCEEDINGS
Application of the Netherlands' Government, filed with the Registry on
August 1st, 1936, based on Article 36, paragraph 2 of the Statute.
AGENTS AND COUNSEL
MM. Telders (Netherlands), de Ruelle, Delmer, Marcq (Belgium).
COMPOSITION OF THE COURT
M. Guerrero, President; Sir Cecil Hurst, Vice-President; Count
Rostworowski, MM. Fromageot, de Bustamante, Altamira, Anzilotti,
Negulesco, Jonkheer van Eysinga, MM. Nagaoka, Cheng, Hudson, De
Visscher, Judges.
The judgment was given by ten votes to three.
POINTS OF LAW
Interpretation of treaties (clear text; treaty as a whole, purpose, intention
of the Parties, priority of object and intent over literal meaning) - Law
applicable (lex specialis derogat generali) - Treaties (effects, equality of
the Parties; obligation to implement; control of implementation) -General
principles of law (equity; inadimplenti non est adimplendum) -Equity -
Counter-claim - Damages - Judicial inspection.
Facts
On May l2th, 1863, Belgium and the Netherlands concluded a Treaty the
purpose of which was "to settle permanently and definitively the regime
governing diversions of water from the Meuse for the feeding of
navigation canals and irrigation channels.(1) Article I of this Treaty
provided for the construction below Maestricht, in Netherlands territory, of
a new intake which would constitute "the feeding conduit for all canals
situated below that town and for irrigation in the Campine and in the
Netherlands.(2)
The Belgian Government accepted the Treaty not without reluctance, in
view of the fact that it provided for only one intake and that to be situated
in foreign territory.
When the economic development of the Belgian and Netherlands
provinces of Limburg necessitated the enlargement of certain canals and
the construction of new works, the two States signed in 1925 a new
agreement designed to settle the differences which had arisen in respect
of the construction programmes. After the rejection of this agreement by
the Netherlands First Chamber, the Netherlands proceeded to construct
and complete the Juliana Canal, the Bosscheveld Lock and the Borgharen
barrage. On its part, Belgium began the construction of the Albert Canal,
unfinished at the time of the judgment, a barrage at Monsin and a lock at
Neerhaeren.
As no further progress could be made in the settlement of the points at
issue between the two States, the Netherlands initiated proceedings in the
Court by means of a unilateral application, based on the declarations
made by both the Netherlands and Belgium in which they accepted the
compulsory jurisdiction of the Court under Article 36 (a) of the Statute.
Belgium, on its part, made a counter-claim.
In the course of the proceedings and at the suggestion of the Belgian
Agent, which the Netherlands Agent did not oppose, the Court visited the
locality in order to see on the spot the installations, canals and waterways
to which the dispute related and to witness practical demonstrations of
the operations of locks and installations connected therewith.
Submissions of the Parties
The Netherlands ask the Court in the main to adjudge and declare that the
works already carried out by Belgium were contrary to the Treaty of 1863,
that the proposed works would be contrary to it and, consequently, to
"order Belgium a) to discontinue all the works" listed in the Netherlands'
submissions and "to restore to a condition consistent with the Treaty of
1863 all works constructed in breach of that Treaty; b) to discontinue any
feeding held to be contrary to the said Treaty and to refrain from any
further such feeding.(3)
On its part, Belgium asks the Court to declare the Netherlands'
submissions ill-founded, as well as to adjudge and declare, in respect of
the counter-claim, that the Borgharen barrage was constructed in breach
of the stipulations of the Treaty of 1863, that the Juliana Canal is subject
to the provisions of the Treaty and, finally, to reserve the rights accruing
to Belgium from the breaches so committed.
Summary of the Judgment
Since the questions at issue are governed by the Treaty of 1863, the
Court at the outset discards the application to the dispute of the general
rules of international river law in favour of the interpretation and
application of the Treaty.
The Netherlands maintain that Article I of the Treaty, (4) which provides for
a single feeder, situated in Netherlands territory, gives them the right to
supervise and control all the intakes, situated not only in their own
territory, but also in Belgian territory. This contention necessarily implies
that "the Treaty of 1863 intended to place the Parties in a situation of
legal inequality by conferring on the Nether-lands a right of control to
which Belgium could not lay claim. (5) But, in order to allow the existence
of such inequality between the Parties to a treaty freely concluded, the
text of the treaty must say so in precise terms. In the absence of such
terms, the Court rejects the Netherlands' submission.
While criticizing the construction by Belgium of the Neerhaeren Lock, the
Netherlands do not invoke a specific provision of the Treaty. The Court
grants that the Treaty has brought into existence a certain régime which
results from all its provisions taken together and that, accordingly, it
forms a complete whole, the different provisions of which cannot be
dissociated from the others and considered in isolation. This is equally the
case with Article I which must be interpreted together with the other
Articles. In the light of this Article, thus interpreted, neither the
Netherlands' contention regarding the Neerhaeren Lock, nor the Belgian
reply, can be accepted in its entirety. Furthermore, the Court, after
mentioning the construction by the Netherlands of the Bosscheveld Lock,
refuses to admit the Netherlands' complaint about the construction and
operation of a lock of which they themselves set an example in the past.
With regard to the supply by Belgium to a section of the Albert Canal of
water taken from the Meuse elsewhere than at Maestricht, the Court
considers that the origin of the water is irrelevant. Nothing prevents either
Belgium or the Netherlands from making such use as they may see fit of
the canals covered by the Treaty, when the canals do not leave their own
territory. Each of the two States is at liberty in its own territory to modify
such canals, to enlarge them, to trans-form them, to fill them in and even
to increase the volume of water in them, provided that the diversion of
water at the feeder mentioned in the Treaty and the volume of water to
be discharged therefrom is not affected. The same reasoning applies to
the Netherlands' criticism of the proposed supply by Belgium to a section
of another canal of water taken from the Meuse elsewhere than at
Maestricht.`
Having thus rejected all the Netherlands' submissions, the Court proceeds
to deal with the Belgian counter-claims, the first of which concerns the
Borgharen barrage. The Court finds that the Treaty does not forbid the
Netherlands from altering the depth of water in the Meuse at Maestricht
without the consent of Belgium, provided that neither the discharge of
water through the feeder, nor the volume of water which it must supply,
nor the current in the Zuid-Willemsvaart is thereby affected. It is subject
to this condition, and not at their arbitrary discretion, that the Netherlands
are entitled, under the Treaty, to dispose of the waters of the Meuse at
Maestricht. With regard to the alleged interference, by the criticized
construction, with the navigability of that part of the Meuse common to
both States, the Court considers that Belgium has not produced any proof
of it. In reply to the second Belgian submission, which relates to the
Juliana Canal, the Court finds that the Treaty was designed to regulate the
supply of water to the canals situated on the left bank of the Meuse only.
Thus, canals situated on the right bank, such as the Juliana Canal, do not
come under the regime of water supply provided for by the Treaty.
For these reasons, the Court rejects both the Netherlands' submissions
and the submissions contained in the Belgian counter-claim.
Declaration of M. De visscher
M. De Visscher declares that he is unable to concur in the findings of the
Court with regard to the Belgian counter-claim.
Dissenting Opinion of Sir Cecil Hurst
Sir Cecil Hurst criticizes the rejection by the Court of the Belgian counter-
claim. From the purpose of the Treaty and the intention of its framers, he
draws the conclusion that the quantity of water permitted to be taken
from the Meuse depended on a minimum depth of water in the river below
Maestricht. This minimum depth of water was to safeguard navigation
between Maestricht and Venlo. The construction by the Netherlands of the
Borgharen barrage has altered this state of things, thus rendering
inapplicable a provision of the Treaty.
With regard to the Juliana Canal, the Court has considered that the Treaty
of 1863 applied only to withdrawals of water on the left bank of the
Meuse. According to Sir Cecil, it is not because in 1863 there was no canal
on the right bank that the intention of the Treaty was not to apply the
prohibition contained in Article I to a canal situated on the right bank. If in
1863 navigation on the river below Maestricht was important, and if the
purpose of the Treaty was to regulate withdrawals of water with the view
to maintain a certain depth of water, the intention could not have been to
restrict the effect of the Treaty to the left bank. The clear terms of the
Treaty ("pour tous les canaux situés en aval de cette ville") are broad
enough to cover canals on the right bank.
Dissenting Opinion of M. Altamira
An interpretation of the Treaty of 1863, different from that taken by the
Court, leads M. Altamira to dissent from the judgment with respect to the
Neerhaeren Lock.
M. Altamira admits that the obligations contained in the Treaty are
"somewhat restrictive," having regard to circumstances which have
developed since 1863. But this is not a question for the Court. The Treaty
must be observed as it stands, as long as it remains in force. It cannot be
adapted to circumstances. Should the latter prove to be of a compelling
nature, they would have to be provided for by another legal instrument.
Dissenting Opinion of M. Anzilotti
M. Anzilotti is unable to agree with the rejection by the Court of the
Netherlands' submission relating to the Neerhaeren Lock and the
Belgian submission concerning the Borgharen barrage.
In a suit the main object of which is the interpretation of a Treaty by
reference to certain concrete facts, and in which each of the Parties
presented submissions based on a different interpretation, the Court
should not have confined itself to a mere rejection of the submissions of
the Applicant without at the same time expressing its opinion on those of
the Respondent; in any ease, it should have declared whet it considered
to be the correct interpretation of the Treaty.
In order to determine whether the construction of the Neerhaeren Lock
was or was not in violation of Article I of the Treaty, M. Anzilotti proceeds
to interpret this Article. He considers that the object and intent of the
Treaty must be given priority over its text; "it is always dangerous to be
guided by the literal sense of the words before one is clear as to the
object and intent of the Treaty; for it is only in this Treaty, and with
reference to this Treaty, that these words - which have no value except in
so far as they express the intention of the Parties - assume their true
significance.(6)
The fundamental object of the Treaty is to allow the withdrawal from the
Meuse of a certain quantity of water, fixed with reference to the level of
the river. Another object is to establish a regime for the Meuse capable of
maintaining and improving its navigability in spite of the quantity of water
which would be extracted from the river.
In the light of these objects, the purpose of Article I cannot be to exclude
other feeders. Its object is rather to exclude the supply of water to the
canals by water withdrawn elsewhere than at the feeder provided for in
the Treaty. Consequently, the functioning of the Neerhaeren Lock, which
discharges into a canal water diverted at Monsin in excess of the quantity
laid down in the Treaty, is contrary to the Treaty.
With regard to the alternative submission of Belgium, claiming that "by
constructing certain works contrary to the terms of the Treaty, the
Applicant has forfeited the right to invoke the Treaty against the
Respondent,(7) M. Anzilotti is "convinced that the principle underlying this
submission (inadimplenti non est adimplendum) is so just, so equitable,
so universally recognized, that it must be applied in international relations
also. In any case, it is one of these 'general principles of law recognized
by civilized nations' which the Court applies in virtue of Article 38 of its
Statute.(8)
Still applying the same interpretation of the Treaty of 1863, M. Anzilotti
concludes that the barrage at Borgharen is equally contrary to this Treaty.
It remains to be seen whether the fact that Belgium has not suffered any
injury as a result of it can defeat the Belgian claim. According to M.
Anzilotti, the existence of an injury would be relevant if Belgium had made
a claim for damages, but not when it simply asks for the interpretation of
the Treaty. The circumstances might have changed since 1863 but the
Treaty is still in force and none of the Parties to it is entitled to prevent its
execution without the consent of the other Party.

Separate Opinion of Jonkheer Van Eysinga

The dispute submitted to the Court is solely concerned with the
interpretation of the Treaty of 1863. This Treaty derogates from the
normal state of affairs, according to which the discharge of an
international river belongs to that river. The compromise established by
the Treaty consists in the withdrawal of large quantities of water from the
Meuse for the benefit of Belgium, on the one hand, and the measures to
offset the undesirable consequences of that withdrawal, on the other
hand.

With regard to the control of such an arrangement, Jonkheer van Eysinga

does not admit an alleged unilateral right on the part of the Netherlands,
for the right of control "is mutual wherever the convention is
mutual.(9) However, the Netherlands have never claimed for this right of
control a scope as wide as that attributed to it by the Belgian argument.
Turning to the specific contentions of the Parties, Jonkheer van Eysinga
considers as justified the Netherlands' submissions to the effect that the
works already carried out by Belgium are not in conformity with the
Treaty. He takes a more qualified attitude towards the Netherlands'
submissions concerning the Belgian works in course of completion.

With regard to the Belgian counter-claim, he is of opinion that by

establishing the barrage at Borgharen the Netherlands have certainly not
violated the Treaty and that the Juliana Canal is situated outside the
territorial ambit of the Treaty.

Individual Opinion of Hudson

While he concurs in the judgment of the Court, Mr. Hudson considers that
there is room to apply here the principle of equity. "A sharp division
between law and equity, such as prevails in the administration of justice in
some States, should find no place in international jurisprudence. (10) The
question here is of a general principle of law re-cognized by civilized
nations in the sense of Article 38 of the Statute, and the Court's
recognition of equity as part of international law is in no way restricted by
the special power conferred on it to decide a case ex aequo et bono if the
Parties so agree. "It would seem to be an important principle of equity
that where two parties have assumed an identical or a reciprocal
obligation; one party which is engaged in a continuing non-performance of
that obligation should not be permitted to take advantage of a similar
non-performance of that obligation by the other party.(11) A tribunal,
bound by international law, ought not to shrink from applying a principle
of such obvious fairness. In equity, the Netherlands cannot ask Belgium to
discontinue the operation of the Neerhaeren Lock when the Netherlands
remain free to continue the operation of the Bosscheveld Lock. Neither of
these two requests should be granted where the circumstances are such
that the judgment would disturb that equality which is equity. If it
preserves the equality between the Parties, the judgment may better
serve to facilitate their negotiations on the conclusion of a new treaty to
replace that of 1863.