Peru issued an arrest warrant against Haya dela Torre in respect of the crime of military rebellion which happened

in The Party which relies on a custom of this kind

Peru. Three months after the rebellion, Torree fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador must prove that this
confirmed that Torre was granted diplomatic asylum and requested safe passage for Torre to leave Peru. However, Peru custom is established in such a manner that it has
refused to accept the unilateral qualification and refused to grant safe passage. The Colombian government claims that it become binding on the other Party
had right to grant asylum under agreements between the states and the regional custom in the Latin American States.

The issue is WoN the Colombian government can grant asylum under regional
01 THE ASYLUM CASE custom – NO.
(COLOMBIA v. PERU) 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). Furthermore, very few states had
ratified the conventions which Colombia relied on and there was significant discrepancy in the practice of asylum. Even
if Colombia could prove that such a regional custom existed, it would not be binding on Peru, because Peru 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 in matters of diplomatic asylum.
This case involves a dispute between Germany and Denmark, and Germany and Netherlands. The said parties wish to Test to determine the existence of Opinio Juris:
delimit the north sea continental shelf but are in disagreement as to what principle of international law to apply. Hence, a. It must be of a fundamentally norm-creating
this case. According to Denmark and Netherlands, the equidistant-special circumstances principle (see footnote 1 for the character such as one regarded as forming the basis
definition) in Art. 6(2) of the Geneva Convention should be applied. The effect of this is that Germany would get a smaller of a general rule of law,
portion. Meanwhile, Germany argues that what should be applied is the doctrine of just and equitable share where each b. The States must conform to it because they feel a
of the States concerned would have a “just and equitable share” in the available continental shelf, in proportion to the legal obligation to do so, and
length of its sea-frontage. It argues that the equidistant principle cannot apply because of the existence of a special c. Time
NORTH SEA CONTINENTAL circumstance negating its application. The ICJ ruled in favor of Denmark and Netherlands, but it emphasized that the
SHELF CASE equidistant principle is only customary international law.
GERMANY vs. DENMARK
AND NETHERLANDS ISSUE: WON the equidistant principle applies—YES.
WON the equidistant principle is customary international law—YES.
RULING: The equidistant principle applies only in the absence of a delimitation agreement between the parties. The
contract between them shall always be the primordial consideration for effecting delimitation. It is only in the absence of
such agreement can the equidistant method come in. In this case, there was no such agreement as to the delimitation of
the continental shelf. As to the principle being customary international law: Even though the equidistant principle isn’t
binding as international law, it is, nevertheless, part of customary law—it came about partly because of subsequent State
practice, and eventually became binding upon countries, even those not part of the Geneva Convention.
Paquete Habana & Lola were Spanish fishing vessels who would leave Havana ports in order to fish. The 2 vessels were Under international law, coastal fishing vessels
eventually captured as prizes of war by US merchant vessels as part of Admiral William Sampson’s (Sampson) blockade pursuing their vocation of catching & bringing in
of Cuba who was ordered to execute the blockade in pursuance of the laws of the US & the law of the nations applicable fresh fish have been recognized as exempt with
to such cases. The vessels were placed within Cuba’s territorial waters at the onset of the Spanish-American War & then their cargoes & crews from capture as prize of war.
taken to Key West where both vessels were eventually auctioned by the district court as prize of war. They were not International Law is part of the law of the US ad
treated as exempt to be seized to be treated as prizes of war. must be ascertained & administered by the courts
The owners of the vessels however made an appeal to the circuit courts, citing a long held tradition by nations of of justice of appropriate jurisdiction as often as
Paquete Habana v. US
exempting fishing vessels from prize capture in times of war. At the time of capture both vessels had no evidence of questions of right depending upon it are duly
aiding the enemy, and were unaware of the US naval blockade. No arms were found on board, and no attempts were presented for their determination.
made to either run the blockade or resist capture. The US SC held that there are no treaties of the US to the contrary of
what is stated in International Law. International Law is part of the law of the US and must be ascertained &
administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly
presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative
act or judicial decision, resort must be had to the customs and usages of civilized nations.
On the way to Constantinople, while it was sailing the High Seas (no nation has criminal jurisdiction over this territory) Opinio juris is not only reflected by acts of States,
the French mail steamer Lotus and the Turkish collier “Boz-Kourt” collided with each other. The Boz Kourt was cut in but also by its omissions
two, sank, and eight Turkish nationals died. Upon arriving in Constantinople, the Turkish authorities held an inquiry into (simply: custom is shown by both what you do, and
the collision, and instituted joint criminal proceedings in accordance with Turkish law against the captain of the Boz what you don’t do)
The Case of the S.S. Lotus
Kourt and the officer on watch on board the Lotus, Lietenant Demons (French citizen).
The Court found that Turkish jurisdiction was justifiable not because of the nationality of the victims but because the
effects of the offence were produced on a Turkish ship, and consequently, in a place "assimilated to Turkish territory in
which the application of Turkish criminal law cannot be challenged". Once it was admitted that the effects of the offence
1
 were produced on the Turkish vessel, it became impossible to hold that there was a rule of international law that
prohibited Turkey from prosecuting Lieutenant Demons simply because the author of the offence was on board the
French ship.
Portugal claims a right of passage between Daman and the enclaves, and between the enclaves, across intervening Indian Customs or Practices between countries can be a
territory, to the extent necessary for the exercise of its sovereignty. The extent of the right of passage includes private source of International Law.
persons, civil official, general goods, armed forces, armed police and arms and ammunitions. Portugal hinges its claim
based on the Treart of Poona of 1779 and on 2 sanads (decrees) stating that these conferred sovereignty to Portugal
over the enclaves with the right of passage to them. India objects on the ground that the Treaty of 1779 was not validly
entered into and never became a treaty. Furthermore, the sanads didn’t conferred sovereignty over the enclaves but it
was only a revenue grant to Portugal. Court ruled that indeed, the Treaty of 1779 and the sanads didn’t gave Portugal
sovereignty over the enclaves but the situation changed when the British came in. Because of this, the court examined
CASE CONCERNING RIGHT the Portugal’s claim based on the practices which prevailed during the British and post-British periods.
TO PASSAGE OVER INDIAN The issue in this case is WoN the Government of Portugal can claim right of passage over the enclaves – YES
TERRITORY BUT THE RIGHT ONLY APPLIES TO PRIVATE PERSONS, CIVIL OFFICIALS AND GOODS IN GENERAL
PORTUGAL V. INDIA The Court said that there exists a common ground between the Portugal and Great Britain that the passage of private
persons and civil officials was not subject to any restriction beyond routine control during/post British Period. The
same is true for general goods which also passed freely during the periods in question. However, it was different for the
passage of armed forces, armed police and arms and ammunitions. With regard to armed forces, Par 3 of Art XVIII of the
Treaty of Commerce and Extradition provides that armed forces of the Government of Great Britain and Portugal should
not enter the Indian dominions of the other expect for certain situations (See Ratio #6). Regarding armed police, it is in
the same position as that of the armed forces, passage of which is based on reciprocity and not a right. Exportation of
arms and ammunition is also prohibited as stated in the same Treaty (Same Treaty pertaining to armed forces and
armed police)
In these two cases, Australia and New Zealand applied to the ICJ to enjoin France from conducting nuclear tests at the A declaration made through unilateral acts may
NEW ZEALAND VS. South Pacific region. Before the case could be completed, France made open declarations that it will cease to conduct have the effect of creating legal obligations.
FRANCE; AUSTRALIA VS. nuclear tests, so it moved for the dismissal of the case. The Court held in this case that since France has already made a
FRANCE [NUCLEAR unilateral declaration of not conducting nuclear tests anymore, the dispute has already disappeared so there is no more
TESTS] need for a judgment. Moreover, once the Court has found that a State has entered into a commitment concerning a future
conduct, it is not the Court’s function to contemplate that it will not comply with it
The US was initially supportive of the new government in Somoza but this changed. The US decided to plan and If one State, with a view to the coercion of another
undertake activities directed against Nicaragua. State, supports and assists armed bands in that
The issue is WoN the United States breached its customary international law obligation, which is not to intervene in the State whose purpose is to overthrow the
affairs of another State? Yes it violated its international obligation by attacking Nicaragua, directed or authorized its government of that State, that amounts to an
Nicaragua vs. US
aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its territorial sea. 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 PCGG created the AFP Anti-Graft Board to investigate reports of unexplained wealth and corrupt practices by AFP The Court considers the Declaration as part of
personnel. Among those investigated was Major General Ramas. After investigation, a complaint was filed against Ramas customary
and Elizabeth Dimaano, an alleged confidential agent of the Philippine Army. Earlier, or on March 3, 1986, a raiding team international law, and that Filipinos as human
conducted a search of Dimaano’s residence. Although the search warrant was only for the seizure of illegally possessed beings are proper subjects of the
firearms, the raiding team also seized communications equipment, jewelries, monies, and land titles. The petitioners rules of international law laid down in the Covenant
argued that Dimaano could not pray for the exclusion of the alleged illegally seized items because the exclusionary right since the revolutionary
under the Bill of Rights of the 1973 Constitution with respect to the seizure conducted on March 3, 1986 was not in government did not repudiate the Covenant or the
effect. Declaration during the
The issues in this case are WoN the revolutionary government was bound by the Bill of Rights of the 1973 Constitution interregnum.
Republic vs. Sandiganbayan
during the interregnum and WoN the protection accorded to individuals under the International Covenant on Civil
and Political Rights (“Covenant”) and the Universal Declaration of Human Rights (“Declaration”) remained in effect
during the interregnum.
For the first issue, the SC held that Bill of Rights under the 1987 Constitution was not operative during the interregnum.
The government in power was concededly a revolutionary government bound by no constitution. Thus, no one could
validly question the sequestration orders as violative of the Bill of Rights because there was no Bill of Rights during the
interregnum.
For the second issue, the SC held that even during the interregnum the Filipino people continued to enjoy, under the
Covenant and the Declaration, almost the same rights found in the Bill of Rights of the 1973 Constitution. The Court has

2
 interpreted the Declaration as part of the generally accepted principles of international law and binding on the State.
Thus, the revolutionary government was also obligated under international law to observe the rights of individuals
under the Declaration.
Denmark filed a suit against Norway in the Permanent Court of International Justice because Norway declared that it will A claim to sovereignty is based not upon some
occupy certain territories (Eirik Raudes Land) in Greenland which belonged to Denmark. Denmark alleged that the particular act or title such as a treaty of cession but
declaration of occupation of Norway is invalid because at the time of the declaration, Greenland was already under the merely upon continued display of authority.
sovereignty of Denmark. Norway, on the other hand, alleges that it acquired sovereignty over the Eirik Raudes land
001 LEGAL STATUS OF because the area lay outside the limits of the Danish colonies in Greenland.
EASTERN GREENLAND According to the court, for a claim of sovereignty, two elements must concur: first, that the country has intention and will
(DENMARK V. NORWAY, to act as sovereign, and second, that there is some actual exercise or display of such authority.
PCIJ REPORTS, SERIES A/B, (in re: 2nd element) In this case, Denmark is said to have conferred a valid title of sovereignty in Greenland because of
NO. 53) various things taken into consideration, one of which is the numerous treaties in which Denmark provided for the
nonapplication of the treaty to Greenland. By expressly excluding Greenland in these treaties with other countries, it
shows that Greenland is subject to the Danish government.
(in re: 1st element) These treaties may also be regarded as demonstrating sufficiently Denmark's will and intention to
exercise sovereignty over Greenland.
Australia and New Zealand demanded that France cease atmospheric nuclear tests in the South Pacific. France Declaration made through unilateral acts may have
completed a series of nuclear tests in the South Pacific. Australia and New Zealand applied to the ICJ demanding that the effect of creating legal obligations.
France cease testing immediately. While the case was pending, France announced the series of tests was complete and
that it did not plan any further such tests. France moved to dismiss the applications.
The issue is WoN declaration made by way of unilateral acts have the effect of creating legal obligations – YES.
The unilateral statements made by French authorities were first communicated to the government of Australia. To have
NEW ZEALAND; AUSTRALIA
legal effect there was no need tor the statements to be directed to any particular state. The general nature and
v. FRANCE
characteristics of the statements alone were relevant for evaluation of their legal implications. The sole relevant
question is whether the language employed in any given declaration reveals a clear intention. One of the basic principles
governing the creation and performance of legal obligations is the principle of good faith. The statements made by the
President of the French Republic must be held to constitute an engagement of the State in regard to the circumstances
and intention with which they were made. The statements made by the French authorities are therefore relevant and
legally binding. Applications dismissed.
This case concerned the procedure to be adopted in regard to the settlement of (human rights) disputes between the One could not remedy the breach of a Treaty
States signatories of the Peace Treaties of 1947 (Bulgaria, Hungary, Romania, on the one hand, and the obligation by creating a Commission which was not
Allied States, on the other). the kind of Commission contemplated by the
In the first Advisory Opinion (30 March 1950), the Court stated that the countries, which had signed a Treaty providing Treaties. It was the Court's duty to interpret
an arbitral procedure for the settlement of disputes relating to the interpretation or application of the Treaty, Treaties, not to revise them.
were under an obligation to appoint their representatives to the arbitration commissions prescribed by the Treaty.
012 INTERPRETATION OF Notwithstanding this Advisory Opinion, the three States, which had declined to appoint their representatives on the
PEACE TREATIES CASE arbitration commissions, failed to modify their attitude. A time-limit was given to them within which to comply with the
SECOND obligation laid down in the Treaties as they had been interpreted by the Court.
PHASE ADVISORY OPINION After the expiry of the time-limit, the Court was requested to say whether the Secretary-General, who, by the terms of
the Treaties, was authorized to appoint the third member of the arbitration commission in the absence of agreement
between the parties in respect of this appointment, could proceed to make this appointment, even if one of the parties
had failed to appoint its representative.
In a further Advisory Opinion of 18 July 1950, the Court replied that this method could not be adopted since it would
result in creating a commission of two members, whereas the Treaty provided for a commission of three members,
reaching its decision by a majority.
During the General Assembly of the UN, several questions and reservations were raised regarding the CPPCG. The In treaty relations, a state cannot be bound without
questions and answers of the ICJ are as follows: its consent, hence a State
QI: Can the reserving State be regarded as being a party to the Convention while still maintaining its reservation if the could not be bound by a reservation to which it has
RESERVATIONS TO THE
reservation is objected to by one or more of the parties to the Convention but not by others? A: A state which has made not consented. Every State is free to
CONVENTION ON THE
and maintained a reservation which has been objected to by one or more of the parties but not by others can be decide for itself whether the state which formulated
PREVENTION AND
regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the the reservation was or was not a party to
PUNISHMENT OF THE
convention; otherwise, State can’t be regarded as being a party to the convention.
CRIME OF GENOCIDE
QII (a): What is the effect of the reservation between the reserving State and the parties which object to the reservation?
A: If a party to the convention objects to a reservation which it considers to be incompatible with the object and purpose
of the Convention, it can in fact consider that the reserving State is not a party to the convention;

3
 QII (b): What is the effect of the reservation between the reserving State and those who accept it? A: If a party accepts
the reservation as being compatible with the object and purpose of the convention, it can in fact consider that the
reserving State is a party to the convention.
QIII (a): What would be the legal effect if an objection to a reservation is made by a signatory which has not yet ratified?
A: It can have the legal effect indicated in QI only upon ratification. Until that moment, it merely serves as a notice to the
other State of the eventual attitude of the signatory State.
QIII (b): What would be the legal effect if an objection to a reservation is made by a state entitled to sign or accede but
which has not yet done so? A: It is without legal effect.
SUMMARY: An advice is sought before the Court with regard to the legal consequences of the continued presence of South Africa in Namibia. The first issue in this case.
a) Member states are under obligation to abstain from entering into treaty relations with South Africa, which involve intergovernmental co-operation, in all cases in which the
Government of Africa purports to act on behalf of or concerning Namibia. Wrt multilateral treaties, the same rule cannot be applied to certain general conventions such as those
with humanitarian character, the nonperformance of which may adversely affect the people of Namibia: it will be for the competent international organs to take specific
measures
LEGAL CONSEQUENCES b) Member states are under obligation to abstain from sending diplomatic or special missions to South Africa including in their jurisdiction the territory of Namibia, to abstain
FOR STATES OF THE from sending consular agents to Namibia, and to withdraw any such agents already there; and to withdraw any such agents already there; and to make it clear to South Africa
CONTINUED that the maintenance of diplomatic or consular relations does not imply any recognition of its authority wrt Namibia
PRESENCE OF SOUTH c) Member states are under obligation to abstain from entering into economic and other forms of relations with South Africa on behalf of or concerning Namibia which may
AFRICA IN NAMIBIA entrench its authority over the territory
d) However, non-recognition should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, the illegality or
invalidity of acts performed by the Gov’t of South Africa on behalf of or concerning Namibia after the termination of the Mandate cannot be extended to such acts as the
registration of births, deaths, marriages As to States not members of the UN, although they are not bound by Articles 24 and 25 of the Charter, they have been called upon by
resolution 276 (1970) to give assistance in the action which has been taken by the UN with regard to Namibia. No state which enters into relations with South Africa concerning
Namibia may expect the UN or its Members to recognize the validity or effects of any such relationship.
President Jimmy Carter terminated a treaty with Taiwan and a few Congressional members felt that this deprived them The Supreme Court left the question of the
of their Constitutional function (they approve actions of the President involving treaties). However, no Congressional constitutionality of the
action was taken other than a Resolution that would require the President to get Senate approval but which had no final President Carter's action open. Article II, Section II
vote so nothing happened. of the Constitution merely states
Issue: WoN President’s termination of a treaty without congressional approval is a non-justiciable political decision - that the President cannot make treaties without a
Goldwater v. Carter YES Senate majority two-thirds vote. As
Had the President and Congress reached irreconcilable positions, then it would have eliminated multiple constitutional it stands now, there is no official ruling on whether
interpretations. However, the case stood simply as a dispute among unsettled competing political forces between the the President has the power to
Legislative and Executive hence political in nature. While the Constitution is express as to the manner in which the break a treaty without the approval of Congress.
Senate shall participate in the ratification of a treaty, it is silent as to that body's participation in the abrogation of a
treaty. It also involves foreign relations which the court finds justification in ruling that this case is political in nature.
Main gist of the case: because some circumstances changed, Iceland claimed that a fishing treaty it had with the United Iceland argued that the 1961 Exchanges of Notes
Kingdom was no longer applicable. took place when the British Navy had been using
SUMMARY: An application was filed before the I.C.J. when Iceland proposed to extend its exclusive fisheries jurisdiction force to oppose the 12-mile fishery limit of Iceland
from 12 to 50 miles around its shores in 1972. Iceland attempted to extend its exclusive fishing rights to 50 nautical and that they were void ab initio. The Court
miles from the baseline, over its 12-mile allowance. However, Iceland and the United Kingdom reached an agreement in rejected the argument because there was no
1961 stating that the United Kingdom would recognize the 12-mile fishery zone. Iceland terminated this agreement in concrete evidence of use of force and stated: “The
1971 in which it set up its new fishery zone. The UK challenged this extension of jurisdiction and sought to submit the 1961 Exchange of Notes were freely negotiated by
case to the International Court of Justice (ICJ.) The UK relied upon an earlier treaty agreement between the parties the interested parties on the basis of perfect
where the UK agreed to recognize Iceland’s twelve-mile exclusive fisheries jurisdiction in exchange for Iceland’s equality and freedom of decision on both sides.
agreement to submit all disputes over fisheries jurisdiction to the ICJ. Iceland argued that it was not bound by this In order that a change of circumstances may give
016 Fisheries Jurisdiction
agreement to submit all disputes to the ICJ, however, because of changing legal circumstances in international law. rise to the premise calling for the termination of a
Case (United Kingdom v.
Iceland argued that the standard, default limit for exclusive fisheries jurisdiction for states was typically now twelve treaty, it is necessary that it has resulted in a radical
Iceland)
miles. transformation of the extent of the obligations still
This was not the case when Iceland first signed its agreement with the UK, however, and the agreement to a twelve-mile to be performed.
limit then constituted a compromise for Iceland. Due to changing trends in international law, Iceland argued that its Recourse to the I.C.J. in the event of a dispute was
previous agreement to the twelve-mile compromise in exchange for ICJ jurisdiction was now void for lack of the original agreement between the parties.
consideration on the UK’s part. Iceland stood to argue that the previous agreement with UK is not valid anymore due to
these changes in circumstances. United Kingdom has been fishing in this region for many years and brought this issue to
the ICJ when Iceland set up its new parameters. The ICJ found that it had jurisdiction in this matter. M.I.A! - Iceland
failed to take part in the proceedings.
ISSUES: 1. In order that a change of circumstances may give rise to a ground for invoking the termination of a treaty, is it
necessary that it has resulted in a radical transformation of the extent of the obligation still to be performed? Yes. In
4
 order that a change of circumstances may give rise to the premise calling for the termination of a treaty, it is necessary
that it has resulted in a radical transformation of the extent of the obligations still to be performed.
The change of circumstances alleged by Iceland cannot be said to have transformed radically the extent of the
jurisdictional obligation that was imposed in the 1961 Exchange of Notes.
2. Does Iceland have the right to extend its fishery zone from 12 miles to 50 miles? No, Iceland doesn’t have the right to
extend its fishery zone from 12 to 50 miles (bawal sobra greedy much). A fishery zone, “between the territorial sea and
the high seas, within the coastal State could claim exclusive fisheries jurisdiction.” This area has been accepted to be 12
miles from its baseline. In international law, if a general practice is accepted by states and is practiced, then this concept
is law.
3. What role does the agreement between Iceland and United Kingdom play within the court’s decision? A signed
agreement/treaty between two nations is binding agreement that must be upheld between nations. This agreement
also proves and shows that Iceland accepted the 12-mile fishery zone jurisdiction and was content with it. Thus, the UK
has 2 factors that play favorably in the courts eyes; the facts of the case line up with International Law and an agreement
was struck between both nations that lined up with what International Law would allow. ICELAND DIDN’T FOLLOW
THE SIGNED AGREEMENT WITH UK.
4. What is the law of the high seas and has it been established? Can it be enforced? According to the United Nations
Conference on the Law of the Sea it declared freedom of the high seas and this freedom is to be exercised by all states.
However, nothing arouses from these conferences concerning fishery jurisdiction and where it stops. A zone between
the territorial zone and the high sea is where fishery jurisdiction stops. Although it was not established in a treaty, states
accepted this general rule of a 12-mile fishery zone and given that Iceland did not protest this rule it thus gave consent to
it.
In its Judgment in the case concerning Gabcikovo-Nagymaros Project (Hungary/Slovakia), the Court found that Hungary The Court observes, first of all, that the state of
was not entitled to suspend and subsequently abandon, in 1989, its part of the works in the dam project, as laid down in necessity is a ground recognized by customary
the treaty signed in 1977 by Hungary and Czechoslovakia and related instruments. It also found that Czechoslovakia was international law for precluding the wrongfulness
entitled to start, in November 1991, preparation of an alternative provisional solution (called "Variant C"), but not to put of an act not in conformity with an international
that solution into operation in October 1992 as a unilateral measure. Furthermore, the Court found that Hungary's obligation. It considers moreover that such ground
notification of termination of the 1977 Treaty and related instruments on 19 May 1992 did not legally terminate them for precluding wrongfulness can only be accepted
(and that they are consequently still in force and govern the relationship between the Parties). Lastly, that Slovakia, as on an exceptional basis.
successor to Czechoslovakia became a party to the Treaty of 1977. The following basic conditions set forth in Article
As to the future conduct of the Parties, the Court found that Hungary and Slovakia must negotiate in good faith in the 33 of the Draft Article on the International
light of the prevailing situation and must take all necessary measures to ensure the achievement of the objectives of Responsibility of States by the International Law
the 1977 Treaty. Unless the Parties agree otherwise, a joint operational regime for the dam on Slovak territory must be Commission are relevant in the present case:
estab1ished in accordance with the Treaty of 1977 and each Party must compensate the other Party for the damage 1. It must have been occasioned by an "essential
HUNGARY v SLOVAKIA
caused by its conduct. The accounts for the construction and operation of the works must also be settled in accordance interest" of the State which is the author of the act
with the relevant provisions of the 1977 Treaty and its related instruments. The Court also held that newly developed conflicting with one of its international obligations;
norms of environmental law are relevant for the implementation of the Treaty and that the Parties could, by agreement, 2. That interest must have been threatened by a
incorporate them through the application of several of its articles. It found that the Parties, in order to reconcile "grave and imminent peril";
economic development with protection of the environment, "should look afresh at the effects on the environment of the 3. The act being challenged must have been the
operation of the Gabcikovo power plant. In particular, they must find a satisfactory solution for the vo1ume of water to "only means" of safeguarding that interest;
be released into the old bed of the Danube and into the side-arms of the river. 4. That act must not have "seriously impaired an
essential interest" of the State towards which the
obligation existed;
5. The State which is the author of that act must not
have "contributed to the occurrence of the state of
necessity".
A Japanese alien assails the judgment of the lower court. The judgment declared that certain land purchased by him in A treaty does not automatically supersede local
1948 had escheated to the State based on the Californian Alien Law which prohibits ineligible aliens from owning land. laws which are inconsistent with it unless the
Plaintiff contends that the land law had been invalidated by the provisions of the UN Charter because the member treaty provisions are self-executing. As said by CJ
nations pledged to promote the observance of human rights and fundamental freedoms without distinction as to race. He Marshall: A treaty is “to be regarded in courts of
also contends that the law is violates the due process and equal protection clauses. The relevant issue is whether the justice as equivalent to an act of Legislature,
SEI FUJII v. STATE OF
provisions of UN Charter superseded the domestic legislation. The Court ruled in the negative and distinguished whenever it operates of itself, without the aid of
CALIFORNIA
between a self-executing treaty and a non-selfexecuting treaty. In determining whether a treaty is self-executing, courts any legislative provision.
look at the intent of the signatory parties as manifested by the language of the instrument. If the instrument is uncertain, But when the terms of the stipulation import a
and intent cannot be easily determined, the circumstances surrounding the execution should be considered. A treaty is contract – when either parties engages to perform a
self-executing (meaning, no implementing legislation needed) when its provisions prescribe in detail the rules governing particular act, the treaty addresses itself to the
political, not the judicial department and the
5
 the rights and obligations of individuals. The Court ruled that the provisions relied on by plaintiff (preamble, Article 55, Legislature must execute the contract, before it can
and 56) are non-self-executing (see Fact 4a and 4b). Moreover, there are certain provisions in the UN Charter that are become a rule for the court.”
self-executing. Meaning, when the framers of the Charter intended to make certain provision effective without the aid of
implementing legislation, they employed language which is clear and definite and manifests that intention (See Fact 6a
and 6b). The preamble, Article 55, and 56 are framed as a promise of future action by the member nations. Hence, the
charter provisions relied on by plaintiff were not intended to supersede existing domestic legislation, and the court
cannot hold that they operate to invalidate the Alien Land Law. However, the Court invalidate the Alien Land Law for
violating the due process and equal protection clauses of the Constitution.
The United States and the Philippines entered into a Visiting Forces Agreement which was approved by President Ramos In international law, there is no difference between
and subsequently ratified by President Estrada. The required concurrence from the Senate was handed through its treaties and executive agreements in their binding
Resolution No. 18. Thus, the VFA was officially entered into force. However, the constitutionality of the VFA was assailed effect upon states concerned, as long as the
by the petitioners and argued that the VFA violates Sec. 25, Article 18 of the 1987 Constitution, which provides that negotiating functionaries have remained within
“foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred their powers. International law continues to make
in by the Senate…. and recognized as a treaty by the other contracting State.” The issue is WoN the VFA is constitutional. no distinction between treaties and executive
The court held that it is constitutional. Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the agreements: they are equally binding obligations
country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be upon nations.
duly concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast by the people
in a national referendum; and (c) recognized as a treaty by the other contracting state. The first two requirements were
BAYAN v. ZAMORA present. The concurrence was handed down by the Senate through its Resolution No. 18 which was compliant with
regard the manner of voting as provided by the Constitution (16 is the minimum, which is 2/3 of the ALL the members of
Senate, while the actual vote was 23 which was clearly in compliance). With regard to the last requirement, the Court is
of the firm view that the phrase recognized as a treaty means that the other contracting party accepts or acknowledges
the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the
VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.
Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under
international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements
of an agreement under international law, the said agreement is to be taken equally as a treaty. Furthermore,
International law continues to make no distinction between treaties and executive agreements: they are equally binding
obligations upon nations
Lance Corporal (L/CPL) Daniel Smith (Smith), along with several others, is a member of the US Armed Forces charged It was not the intention of the framers of the 1987
with the crime of rape committed against a Filipina, Suzette Nicolas (Suzette). Pursuant to the Visiting Forces Agreement Constitution, in adopting Article XVIII, Sec. 25, to
(VFA), US was granted custody of Smith. He was consequently found guity and was detained at Makati City Jail. However, require the other contracting State to convert their
Smith was transferred to a detention facility under the custody of the U.S. gov’t pursuant to the Romulo-Keneddy system to achieve alignment and parity with ours. It
Agreement. Petitions, thereafter, contest the transfer by alleging that the Philippines should have custody over Smith was simply required that the treaty be recognized
because the VFA is void and unconstitutional. The issue is whether or not the VFA is void and the SC upheld the as a treaty by the other contracting State. With
constitutionality of the VFA. Laws of one state do not extend or apply except to the extent agreed upon to subjects of that, it becomes for both parties a binding
NICOLAS v. ROMULO another state due to the recognition of extraterritorial immunity given to such bodies like visiting foreign armed forces. international obligation and the enforcement of
It was simply required that the treaty be recognized as a treaty by the other contracting State. With that, it becomes for that obligation is left to the normal recourse and
both parties a binding international obligation and the enforcement of that obligation is left to the normal recourse and processes under international law.
processes under international law. In this case, Court finds that there is a different treatment in the issue of detention as *sidenote: Customary law can develop to bind only
against custody. Hence, after conviction, the rule that governs is Section 10 of the VFA. Secretary of Foreign Affairs is two or a few states, but the state claiming it must
hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on prove that it is also binding on the other
detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA party/parties, as was proved by Portugal in the
Right of Passage over Indian Territory (ICJ).
Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed forces of the United States of from the perspective of public international law, a
America started arriving in Mindanao to take partin "Balikatan 02-1” on January 2002. The Balikatan 02-1 exercises treaty is favored
involves the simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense over municipal law pursuant to the principle of
agreement entered into by the Philippines and the United States in 1951. The exercise is rooted from the international pacta sunt servanda. Hence, "[e]very
anti-terrorism campaign declared by President George W. Bush in reaction to the 3 commercial aircrafts hijacking that treaty in force is binding upon the parties to it and
Lim v. Executive Secretary smashed into twin towers of the World Trade Center in New York City and the Pentagon building in Washington, D.C. must be performed by them in
allegedly by the al-Qaeda headed by the Osama bin Laden that occurred on September 11, 2001. Arthur D. Lim and good faith." Further, a party to a treaty is not
Paulino P. Ersando as citizens, lawyers and taxpayers filed a petition for certiorari and prohibition attacking the allowed to "invoke the provisions of its
constitutionality of the joint exercise. The issue is whether the VFA allows war to be started by the US Troops in the internal law as justification for its failure to
Philippines against the Abu Sayyaf. The SC held in the negative, using cardinal interpretation rules provided by the perform a treaty."
Vienna Convention. The VFA was not a camouflage for war.

6
 The Petitioners, each claiming to have the requisite locus standi to file this petition for the issuance of a writ of The transmittal of a signed treaty to the Senate by
mandamus, all seek to compel the President to transmit the Rome Statute, which establishes the International Criminal the President is
Court, to the Senate for ratification, in compliance with the State’s alleged ministerial duty to ratify the Rome Statute discretionary. The President is the sole organ of
under treaty law and customary international law. The Rome Statute was signed by the Philippines on Dec. 28, 2000. The international relations.
issues are: (1) Whether the Petitioners have locus standi, and
(2) whether the transmittal to the Senate for concurrence is a ministerial duty of the President, thus compellable by
mandamus.
The Court held that only Sentaro Pimentel had standing to sue on the ground that, to the extent the powers of Congress
are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the
PIMENTEL v. EXECUTIVE
powers of that institution.
SECRETARY
Further, the Court held that the transmittal of documents is discretionary on the part of the President, he being the sole
organ and authority in external relations and is the contry’s sole representative with foreign nations. The steps in treaty-
making process are: negotitation, signing, ratification, and exchange of instruments. The signing does not signify the final
consent of the State to the treaty. After the treaty is signed by the states representative, the President, being accountable
to the people, is burdened with the responsibility and duty to carefully study the contents of the treaty and ensure
that they are not inimical to the interest of the state and its people. Thus, the President has discretion even after signing
of the treaty on the matter of ratification.
There is no legal obligation to ratify a treaty, but refusal must be based on substantial grounds. The role of the Senate is
limited only to concurrence to the ratification. Refusal to ratify is within the competence of the President alone.
The Aquino regime came up w/ a scheme to reduce the country’s external debt. Their solution was to incur foreign The heads of the executive departments occupy
debts. Three restructuring programs were sought to initiate the program for foreign debts – they are basically buyback political positions and hold office in an advisory
programs & bond-conversion programs). Renato claims that the buyback and bondconversion schemes are onerous and capacity, "are subject to the direction of the
they do not constitute the loan “contract” or “guarantee” contemplated in Sec. 20, Art. 7 of the Constitution and the President."
power to incur foreign debts is expressly reserved by the Constitution in the person of the President alone. The issue is Without minimizing the importance of the heads of
WoN the president has a borrowing power and if she can delegate it to Rosario. SC held that there is no question that the the various departments, their personality is in
RENATO v. ROSARIO president has borrowing powers and that the president may contract or guarantee foreign loans in behalf of this reality but the projection of that of the President.
country. Also the president can delegate this power to her direct subordinates. SC also held that the Secretary of Finance "each head of a department is, and must be, the
has the expertise to execute the debt-relief contracts and executing a strategy for managing the government’s President's alter ego in the matters of that
debt and that R.A. No. 245. Section 1 empowers the Secretary of Finance with the approval of the President to borrow department where the President is required by law
from time to time on the credit of the Republic of the Philippines such sum or sums as in his judgment may be necessary. to exercise authority
SC also noted that there are certain acts which, by their very nature, must be done by the President alone like the power
to suspend the writ of habeas corpus and proclaim martial law and the exercise of prerogative of pardon (mercy)
Cory issued E.O. 51, also known as the Milk Code, under her legislative powers granted by the Freedom Constitution. The Treaties become part of the law of the land through
purpose was to give effect to the International Code of Marketing Breastmilk Substitutes (ICMBS) which was adopted by transformation
the World Health Assembly (WHA). The WHA issued several resolutions from 1986 onwards which did not permit pursuant to Article VII, Section 21 of the
breastmilk substitutes to claim nutrition or health benefits. In 2006, DOH issued the Rules and Regulations of E.O. 51, Constitution. Thus, treaties or conventional
Relevant International Agreements, Penalizing Violations thereof and for other purposes (RIRR). The RIRR was meant to international law must go through a process
implement E.O. 51 plus the WHA resolutions. The RIRR had provisions which mandated exclusive breastfeeding from prescribed by the Constitution for it to
0-6 months, continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and promotions of be transformed into municipal law that can be
breastmilk substitutes. The said provisions were not in the Milk Code and were based on the WHA resolutions. The applied to domestic conflicts.
Pharmaceutical and Health Care Association of the Philippines filed a Petition for Certiorari under Rule 65, assailing that The ICMBS and WHA Resolutions are not treaties as
the RIRR was unconstitutional and went beyond the law it was supposed to implement (E.O.51). they have not been concurred
ISSUE WoN the pertinent international agreements entered into by the Philippines are part of the law of the land and in by at least two-thirds of all members of the
PHARMACEUTICAL v. DOH may be implemented by the DOH through the RIRR. YES, but only the ICBMS became part of the law of the land. The Senate as required under Section 21,
ICMBS is part of domestic law by transformation—by virtue of a local legislative act, which is the Milk Code. However, Article VII of the 1987 Constitution.
the SC held that the WHA resolutions were only soft law, thus not binding/obligatory. As defined by Father Bernas:
Custom or customary international law means “a general and consistent practice of states followed by them from a sense
of legal obligation [opinio juris ].” This statement contains the two basic elements of custom:
(1) the material factor, that is, how states behave—includes elements of duration, consistency and generality of the
practice of states. The required duration can either be long or short. The more important element is consistency and
generality of practice.
(2) the psychological or subjective factor, that is, why they behave the way they do—It is important to determine this; do
they behave out of obligation or courtesy? It is the belief that a certain form of behavior is obligatory (opinion juris)
that makes practice international rule. DOH was not able to prove that the WHA resolutions have the basic elements of
customary law. The DOH therefore could not implement a resolution that is not part of the law of the land. Therefore, the

7
 provisions that relate to the WHA resolutions and those that are outside the Milk Code cannot be enforced since it is not
anchored on any domestic legislation.
Based on the Exchange of Notes of the Japanese and Philippine Governments through their respective representatives, Significantly, an exchange of notes is considered a
Japanese loans would be extended to the Philippines for the promotion of the country’s economic form of an
stabilization through Japan Bank International Cooperation (JBIC) as provided executive agreement , which becomes binding
in the Loan Agreement. Proceeds of the loan would be used to finance the through executive action without
development project, of which the Catanduanes Circumstantial Road was part the need of a vote by the Senate or Congress.
of. The road was divided into four contract packages; CP I, II, III and IV. Agreements concluded by the
DPWH, as the agency assigned to implement the project, held a bid and after President which fall short of treaties are commonly
evaluation, the project manager recommended the award of the contract to referred to as executive
China Road and Bridge Corporation. A contract of Agreement was entered into agreements and are no less common in our scheme
by DPWH and China Road for the implementation of the CP I project. of government than are the
Petitioners maintain that the reward of the contract to China Road violates RA more formal instruments – treaties and
9184 which provides for the ceiling for bid prices. hey claim that because the conventions.
Abaya v. Ebdane
Loan Agreement entered into by JBIC and the Philippines is neither a treaty,
international nor executive agreement, it falls under this law. Issue is WoN
Contract Agreement executed by and between the Republic of the Philippines,
through DPWH, and the China Road & Bridge Corporation, for the
implementation of civil works for CP I under JBIC Loan Agreement is void ab
initio. Court ruled that it is valid. EO 40 is applicable. The Court also holds that
Loan Agreement taken in conjunction with the Exchange of Notes between the
Japanese Government and the Philippine Government is an executive
agreement. BIC may well be considered an adjunct of the Japanese
Government. Further, Loan Agreement is indubitably an integral part of the
Exchange of Notes. It forms part of the Exchange of Notes such that it cannot be
properly taken independent thereof.
The Philippine Government and the MILF were scheduled to sign a The MOA-AD cannot be reconciled with the present
Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the Constitution and
GRP-MILF Tripoli Agreement on Peace of 2001 in Malaysia. Howevever, laws. Not only its specific provisions but the very
respondent GRP was enjoined from fomally signing it by virtue of a TRO issued by concept underlying them, namely,
the Court at the issuance of the petitioners prior to the scheduled signing of the the associative relationship envisioned between the
MOA-AD. There was a long process of negation and agreements between the two GRP and the BJE, are
parties. The GRP and MILF Peace Panels signed the Agreement on General unconstitutional, for the concept presupposes that
Cessation of Hostilities. Then, they signed the General Framework of Agreement of the associated entity is a state and
Intent. However, the MILF attacked a number of municipalities in Central Mindanao implies that the same is on its way to independence.
and took control of the town hall of Kauswagan, Lanao del Norte. In response, then
President Estrada declared and carried out an all-out-war against the MILF. When
President GMA assumed office, the military offensive against the MILF was
suspended and the government sought a resumption of the peace talks. Formal peace
talks were held in Libya which resulted to the crafting of the GRP-MILF Tripoli
THE PROVINCE OF NORTH
Agreement on Peace (Tripoli Agreement 2001) which consists of three (3) aspects:
COTABATO vs. GRP PEACE
a.) security aspect; b.) rehabilitation aspect; and c.) ancestral domain aspect.
PANEL
Various negotiations were held which led to the finalization of the Memorandum of
Agreement on the Ancestral Domain (MOA-AD). The said memorandum was set to
be signed last August 5, 2008.
In its body, it grants ― the authority and jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro to the Bangsamoro Juridical Entity (BJE). The
latter, in addition, has the freedom to enter into any economic cooperation and
traderelation with foreign countries. ― The sharing between the Central Government
and the BJE of total production pertaining to natural resources is to be 75:25 in favor
of the BJE.
The MOA-AD further provides for the extent of the territory of the Bangsamoro. It
describes it as ― the land mass as well as the maritime, terrestrial, fluvial and alluvial
domains, including the aerial domain and the atmospheric space above it, embracing
the Mindanao-Sulu-Palawan geographic region. With regard to governance, on the
other hand, a shared responsibility and authority between the Central Government
8
 and BJE was provided. The relationship was described as ― associativeǁ .
With the formulation of the MOA-AD, petitioners aver that the negotiation and
finalization of the MOA-AD violates constitutional and statutory provisions on
public consultation, as mandated by Executive Order No. 3, and right to information.
They further contend that it violates the Constitution and laws. Hence, the filing of
the petition.
The issues are:
PROCEDURAL: 1) W/N the case if ripe for adjudication? – Yes. The case was ripe
for adjudication for it was held that any alleged violation of the Constitution by any
branch of the government is a proper matter for judicial review. 2) W/N the petitions
have become moot and academic? – No, the controversy was an exception to the
“moot and academic” principle due to tis nature.
SUBSTANTIVE: 1) WoN the respondents violated constitututional and statutory
provisions on public consultation and right to information when they negotiated and
later initiated the MOA-AD – Yes. 2) W/N the signing of the MOA, the Government
of the Republic of the Philippines would be binding itself a) to create and recognize
the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or
political subdivision not recognized by law; - Yes. b) to revise or amend the
Constitution and existing laws to conform to the MOA; - Yes. c) to concede to or
recognize the claim of the Moro Islamic Liberation Front for ancestral domain in
violation of Republic Act No. 8371.
Bayan Muna through its representatives is assailing the validity of An exchange of notes falls into the category of
the RP-US non surrender agreement because it was said that the said agreement intergovernmental
were just mere exchange of notes by the Ambassador of US and the DFA agreements, which is an internationally accepted
secretary. Basically, the RP-US agreement talks about protection of Filipino and form of
American national from harassment suits. Petitioners are claiming that it is in international agreement.
contravention to the existing international law principles, treaties, the Rome It is fairly clear from the foregoing disquisition that
BAYAN MUNA V. ROMULO
statute and most importantly the constitution for it failed to undergo Senate the Non-Surrender
concurrence for ratification. The main issue is whether or not the agreement is Agreement itself, or as an integral instrument of
valid and the Supreme Court ruled on various issues but to sum it up it said that acceptance thereof or as consent
the Agreement is valid as an Executive agreement which does not need to be bound is a recognized mode of concluding a
ratification and it does not violate principles of international law. legally binding international
written contract among nations.
CNMEG entered into a Memorandum of Understanding with An executive agreement is similar to a treaty,
Northrail for the conduct of a feasibility study on a possible railway line from Manila except that the former (a)
to San Fernando, La Union (the Northrail Project). Thereafter, they executed a does not require legislative concurrence; (b) is
Contract Agreement for the construction of Section I, Phase I of the North Luzon usually less formal; and (c) deals with a
Railway System from Caloocan to Malolos on a turnkey basis for USD 421,050,000. narrower range of subject matters. Despite these
Then, the Philippine government and EXIM Bank entered into a counterpart differences, to be considered an
China Nationality Machinery
financial agreement Buyer Credit Loan Agreement. The respondents filed complaint executive agreement, the following three requisites
v. Santamaria
with regard to the Contract Agreement and the Loan Agreement. The issue in the provided under the Vienna
case is WoN the Contract Agreement is an executive agreement, such that it Convention must nevertheless concur: (a) the
cannot be questioned by or before a local court. The SC ruled in the negative. The agreement must be between states; (b) it
1st and 3rd requisite to be considered an executive agreement. CNMEG is not a must be written; and (c) it must governed by
government nor a government agency and the Contract Agreement is governmenrd international law.
by the Philippine Law.
Deutsche Bank AG Manila Branch paid 15% of the gross amount of The time-honored international principle of pacta
the profits it remitted to Deutsche Germany to the BIR. Claiming that it overpaid, it sunt servanda
filed with the BIR an administrative claim for refund and later a confirmation with demands the performance in good faith of treaty
BIR-ITAD of its entitlement of 10% preferential tax under the RP-Germany Tax obligations on the part of the states
Treaty. Due to the inaction of BIR, it filed a petition for review with the CTA. The that enter into the agreement. Tax treaties are
DEUTSCHE BANK v. CIR
CTA 2nd Division ruled that Deutsche violated the 15-day period provided for RMO entered into to reconcile the national
No. 1-2000 and that it should have first filed with ITAD prior to the payment of of fiscal legislations of the contracting parties and in
its BPRT and remittance of its profits to Germany OR prior to its availment of the turn, help the taxpayer avoid
preferential tax rate of 10% under the RP-Germany Tax Treaty. The CTA En Banc simultaneous taxations in two different
affirmed this also citing the Mirant case which held that a prior ruling of ITAD must jurisdictions. Thus, laws and issuances must
9
 be secured first before the availment of a preferential tax rate. On appeal to the ensure that reliefs granted under tax treaties are
Supreme Court the high court ruled that first, the Mirant case is not a binding accorded to the parties entitled
precedent because it was a minute resolution. With respect to the same subject matter thereto.
and same issues concerning the same parties it constitutes res judicata but if other
parties or another subject matter (even with the same parties and same issues) is
involved, the minute resolution is not binding precendent. There are differences in
parties, taxes, taxable periods, and treaties involved. Furthermore, the generally
accepted principle of pacta sunt servanda provides the performance in good faith of
treaty obligations on the part of the states that enter into the agreement. Every treaty
in force is binding upon the parties, and the obligations under the treaty must be
performed by them in good faith. Tax treaties are drafted for the apparent rationale
for doing away with double taxation is to encourage the free flow of goods and
services and the movement of capital, technology and persons between countries,
conditions deemed vital in creating robust and dynamic economies. The period of
application for availment of tax treaty relief should not operate to divest entitlement
to the relief as it would constitute a violation of the duty required by good faith in
complying with a tax treaty.
Petitioners are arguing that EDCA should have been in the form of a The President may generally enter into executive
treaty concurred in by the Senate, not an executive agreement. The Court agreements subject
distinguished between treaties, which are formal documents that require ratification to limitations defined by the Constitution and may
with the approval of two-thirds of the Senate, and executive be in furtherance of a treaty
Saguisag v. Executive agreements become binding through executive action without the need of a vote by already concurred in by the Senate.
Secretary( the Senate or by Congress. The SC basically ruled that the President may enter into
the EDCA as an executive agreement because it was necessary to implement the
existing provisions of the Visiting Forces Agreement and the Mutual Defense Treaty
between the Philippines and the United States. Hence, there was no need for a treaty
that required ratification.
GENERAL PRINCIPLES
After the end of WWII, the Union Gov’t of South Africa is seeking This Anglo-American Trust is akin to the Mandates
to integrate South-West Africa after the dissolution of the League (w/c was System -
responsible for the administration of the SW Africa). Accdg to the Union, the trustees are vested with the property and its
dissolution of the League brought with it the extinguishment of all international management in order that the public or
legal rights and obligation under the Mandates System. Hence, the Union would some class of the public may derive benefit or that
then be free to regulate the status of South-West Africa as a domestic matter. UN some public purpose may be
General Assembly (UN GA) asked the International Court of Justice (ICJ) to advise served. It would be in violation of the trust to
on the international status of SW Africa. ICJ said that SW Africa cannot be absorb South West Africa into South
integrated with the Union. SW Africa’s administration is under the UN, not the Africa. International status created for South-West
Union Gov’t of South Africa. The dissolution of the League of Nations and its Africa subsists. Although there
supervisory machinery had not entailed the lapse of the Mandate, and that the is no longer any League to supervise the exercise of
INTERNATIONAL STATUS
mandatory power was still under an obligation to give an account of its the Mandate, it would be an
OF SOUTH WEST AFRICA
administration to UN. error to think that there is no control over the
McNair, in his opinion, explained that it is akin to a “Trust System” and it would Mandatory
be in violation of the trust to absorb SW into South Africa. The Mandatory created
a status for SW Africa. This status –valid in rem – gives the element of permanence
which would enable the legal condition of SW to survive the disappearance of the
League. This is still true even if there were no surviving personal obligation bet.
The Union and former members of the League. Hence, the dissolution of the
League did not transfer its functions to the United Nations with regard to the
administration of the territory. The continuing international obligations of the
Union of South Africa under the Mandate for SW do not include the obligation to
accept the administrative supervision of UN.
Pena tortured and killed Joselito, the son of Dr. Joel. When Dolly, An act of torture committed by a state official
daughter of Dr. Joel found out that Pena and his partner, Villalaba, is living in the against one held in
Filartiga v. Pena-Irala US, she informed the Immigration and Naturalization Service which, later on, detention violates established norms of the
arrested them for staying beyond what is allowed in his visa. Dolly caused Pena to be international law of human rights, and
served with a summons and civil complaint at the Brooklyn Navy Yard, where he hence the law of nations.
10
 was being held pending deportation. Dolly’s Complaint contained the fact that Pena
had caused Joelito’s death by torture and sought (1) compensatory and punitive
damages of $10m and (2) to enjoin Pena’s deportation to ensure his availability for
testimony at trial. However, Judge Nickerson dismissed the complaint on
jurisdictional grounds. The issue in this case is whether or not deliberate torture
perpetrated under color of official authority violates universally accepted norms of
the international law of human rights, regardless of the nationality of the parties. The
court ruled that prohibition not only was part of Customary International Law, but
was also part of the Universal Declaration of Human Rights. Members of the UN
cannot claim ignorance of what human rights they promised the Charter. The UDHR
is an authoritative statement of the international community. It creates an expectation
of adherence. The international consensus surrounding torture has been manifested in
numerous treaties and is also reflected in modern municipal law. Torture is
prohibited in the constitutions of over 55 nations including the US and Paraguay.
The Central Bank of Nigeria issued a letter of credit drawn on the Applying the generally accepted principle of
Midland Bank in London in favour of Trendtex Trading Corporation, a Swiss restrictive immunity,
company. It was to pay for a large quantity of cement sold by Trendtex to an English (because the international community has now
company. The bank assured Trendtex by letter that there was no need to get the letter departed from absolute immunity), it
of credit confirmed by another bank: the money would be available. So Trendtex states that if a certain act is jure impreii, it gives
went ahead, bought the cement from a German company, sold it to the English immunity to acts of a governmental
company, and shipped it to Nigeria. Now the bank refuses to pay and treats the letter nature, but no immunity to acts of a commercial
of credit as a scrap of paper. The cement was bought by the English company to nature, jure gestionis.
build barracks for the Ministry of Defence of the Government of Nigeria, which had
agreed to buy it from the English company. The bank claims to be an arm or
department of that government and to have performed an act of government in
granting Trendtex this letter of credit. Whether the grant was a public act of
government or a private commercial transaction, it would offend against the dignity
of the sovereign state of Nigeria and the comity of civilised nations if the bank had to
defend Trendtex’s claim to payment in accordance with the letter of credit in the
courts of this country against the Nigerian Government’s will; and it would be a
breach of international law if the High Court of Justice in England were to compel
the bank to defend the claim. We have to consider whether that was rightly done or
Trendtex v. Central Bank of
whether he should have held that he was not required by international law to uphold
Nigeria
the plea of sovereign immunity in respect of an act done by the bank in the ordinary
course of banking business in connection with an ordinary commercial transaction
and should have allowed the action to go on. The court held that the restrictive
immunity must be applied in this case and plea of sovereign immunity, does not
avail the Central Bank of Nigeria . There is no doubt that in the last 20 years the
restrictive theory has steadily gained ground. According to a list compiled by
reference to the various textbooks on international law and put before their
Lordships by agreement between the parties there are now comparatively few
countries outside the Commonwealth which can be counted adherents of the
absolute theory. Many countries have now departed from the rule of absolute
immunity . So many have departed from it that it can no longer be considered a
rule of international law. It has been replaced by a doctrine of restrictive
immunity. This doctrine gives immunity to acts of a governmental nature, as jure
imperii , but no immunity to acts of a commercial nature, jure gestionis . And in this
case, if a government department goes into the market places of the world and
buys boots or cement – as a commercial transaction – that government
department should be subject to all the rules of the market place. The seller is
not concerned with the purpose to which the purchaser intends to put the goods.
This is a petition seeking to nullify the Philippine ratification of The alleged impairment of sovereignty in the
the World Trade Organization (WTO) Agreement. Petitioners question the exercise of
TANADA v. ANGARA concurrence of herein respondents acting in their capacities as Senators via legislative and judicial powers is balanced by the
signing the said agreement. The WTO opens access to foreign markets, adoption of the generally
especially its major trading partners, through the reduction of tariffs on its
11
 exports, particularly agricultural and industrial products. Thus, provides new accepted principles of international law as part of
opportunities for the service sector cost and uncertainty associated with the law of the land and the
exporting and more investment in the country. These are the predicted benefits adherence of the Constitution to the policy of
as reflected in the agreement and as viewed by the signatory Senators, a “free cooperation and amity with all
market” espoused by WTO. Petitioners on the other hand viewed the WTO nations. The Senate, after deliberation and voting,
agreement as one that limits, restricts and impair Philippine economic voluntarily and
sovereignty and legislative power. That the Filipino First policy of the overwhelmingly gave its consent to the WTO
Constitution was taken for granted as it gives foreign trading intervention. The Agreement thereby making it “a
issue in this case is whether or not there has been a grave abuse of discretion part of the law of the land” is a legitimate exercise
amounting to lack or excess of jurisdiction on the part of the Senate in giving its of its sovereign duty and
concurrence of the said WTO agreement. power.
In its Declaration of Principles and state policies, the Constitution “adopts the By the doctrine of incorporation, the country is
generally accepted principles of international law as part of the law of the land, bound by generally accepted
and adheres to the policy of peace, equality, justice, freedom, cooperation and principles of international law, which are
amity, with all nations. By the doctrine of incorporation, the country is bound by considered to be automatically part of
generally accepted principles of international law, which are considered our own laws. One of the oldest and most
automatically part of our own laws. Pacta sunt servanda – international fundamental rules in international law
agreements must be performed in good faith. A treaty is not a mere moral is pacta sunt servanda -- international agreements
obligation but creates a legally binding obligation on the parties. must be performed in good
Through WTO the sovereignty of the state cannot in fact and reality be faith. A treaty engagement is not a mere moral
considered as absolute because it is a regulation of commercial relations among obligation but creates a legally
nations. Such as when Philippines joined the United Nations (UN) it consented binding obligation on the parties. A state which has
to restrict its sovereignty right under the “concept of sovereignty as contracted valid
autolimitation.” What Senate did was a valid exercise of authority. As to international obligations is bound to make in its
determine whether such exercise is wise, beneficial or viable is outside the realm legislations such modifications
of judicial inquiry and review. The act of signing the said agreement is not a as may be necessary to ensure the fulfillment of the
legislative restriction as WTO allows withdrawal of membership should this be obligations undertaken.
the political desire of a member. Also, it should not be viewed as a limitation of
economic sovereignty. WTO remains as the only viable structure for multilateral
trading and the veritable forum for the development of international trade law.
Its alternative is isolation, stagnation if not economic self-destruction. Thus, the
people be allowed, through their duly elected officers, make their free choice.
Mijares et al., (petitioners), are prominent victims of human rights during There is no obligatory rule derived from treaties or
the Marcos regime. They filed a civil case in the RTC of Makati enforing a judgment of conventions that
the US District Court in Hawaii awarding the plaintiffs in that case (it was a class suit) requires the Philippines to recognize foreign
around $1.9Billion (but later in the facts it stated that what they sought to enforce was judgments, or allow a procedure for the
$2.25Billion na). enforcement thereof. However, generally accepted
The Marcos Estate filed a motion to dismiss on the ground that Mijares et al. did not pay principles of international law, by
the proper filing fees (they paid P410 only, on the ground that the action is incapable of virtue of the incorporation clause of the
pecuniary estimation as it is an action enforcing a foreign judgment, while the Marcos Constitution, form part of the laws of the land
Estate believes they should pay P472M since it’s an enforcement of a monetary claim even if they do not derive from treaty obligations.
which is capable of pecuniary estimation). Judge Ranada then dismissed the case and
denied Mijares et al’s MR. The case was then elevated to the Supreme Court.
The Court ruled that perhaps in theory, such an action is primarily for the enforcement of
MIJARES v. RANADA
the foreign judgment, but there is a certain obtuseness to that sort of argument since there
is no denying that the enforcement of the foreign judgment will necessarily result in the
award of a definite sum of money. The complaint to enforce the US District Court
judgment is one capable of pecuniary estimation. But at the same time, it is also an action
based on judgment against an estate, thus placing it beyond the ambit of Section 7(a) of
Rule 141. Hence the applicable rule would be Rule 141 Section 7(b)(3) because it is an
action not involving property. The amount paid as docket fees by Mijares et al. on the
premise that it was an action incapable of pecuniary estimation corresponds to the same
amount required for other actions not involving property.
The Court also discussed enforcement of foreign judgments in local courts. There is no
hard and fast rule and states have different procedures for such. But although there is no
express rule discussing the procedure to be taken, relative to the enforcement of foreign
12
 judgments in the Philippines, it emerges that there is a general right recognized within our
body of laws, and affirmed by the Constitution, to seek recognition and enforcement of
foreign judgments, as well as a right to defend against such enforcement on the grounds
of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of
law or fact.
Medellin together with his gang, raped 2 girls. He was arrested and There are various kinds of treaties. Some have
was convicted of murder and sentenced to death. Upon his arrest, the officers failed automatic effect of
to inform him of his right under the Vienna Convention to notify the Mexican becoming domestic law while others do not. The
consulate of his detention. He only raised this on appeal but the state trial court held Vienna Convention is not selfexecutory
that the claim was procedurally defaulted because he had failed to raise it at trial or and does not convert ICJ decision into domestic law
on direct review. Pending his appeal, the ICJ decided on the case (Avena case) and automatically.
ruled that his right under the convention was violated but the domestic courts still
MEDELLIN vs. TEXAS
refused to apply the ICJ decision. The issue is WoN the ICJ decision on Avena has
automatic domestic legal effect.-NO because not all treaties are self-executory and
becomes domestic law automatically. The SC held that Article 94 of the convention
does not provide that the US “shall” or “must” comply with an ICJ decision, nor
indicate that the Senate that ratified the U. N. Charter intended to vest ICJ decisions
with immediate legal effect in domestic courts. Instead, “[t]he words of Article 94 . .
. call upon governments to take certain action.
WRITINGS AND OTHER SOURCES
A suit was instituted before the Permanent Court of International Treaties constitute evidence of recognition of
Justice (PCIJ) by Royal Danish Government against the Royal Norwegian Gov’t sovereignty
over the legal status of certain territories in Eastern Greenland. The Norwegian
Minister for Foreign Affairs to the Danish Minister at Oslo, the Norwegian
Government stated in its Royal Resolution (July 10th, 1931) that the occupation
in the Eastern Greenland is officially confirmed and is placed under
Norwegian sovereignty. The Danish Government informed the Norwegian
Government that it had submitted the question on the same day to the Permanent
Court of International Justice. The Danish Gov’t contends that (1) Denmark had
enjoyed and had peacefully and continuously exercised an uncontested sovereignty
over Greenland for a long time (up till 1921, no Power disputed the Danish claim to
sovereignty) (2) Norway had recognized Danish sovereignty over the whole
Greenland (through conventions and treaties) and (3) that the Norway is bound by
the Ihlen Declaration (Fact#16 but this basically talks about how the Norwegian
Minister bound Norway by saying that the Danish sovereignty over the whole of
Greenland would meet with no difficulties on the part of Norway). Norway counters
LEGAL STATUS OF that Denmark possessed no sovereignty over the area which Norway occupied
EASTERN GREENLAND because the word "Greenland" is not used in the geographical sense, but means only
CASE (DENMARK v. the colonies or the colonized area on the West coast and that at the time of the
NORWAY) occupation the area was terra nullius (nobody’s island).
Issue is WoN Eastern Greenland belongs to Norway? The Court ruled that Eastern
Greenland rightfully belongs to Denmark.
The importance of these treaties is that they show a willingness on the part of
the States with which Denmark has contracted to admit her right to exclude
Greenland. To some of these treaties, Norway has herself been a Party, and these
must be dealt with later because they are relied on by Denmark as constituting
binding admissions by Norway that Greenland is subject to Danish sovereignty.
Denmark possesses sovereignty over Greenland as a whole and to the extent that
these treaties constitute evidence of recognition of her sovereignty over Greenland
in general Denmark is entitled to rely upon them.
Norway is now estopped from claiming Greenland because until 1931 there was no
claim by ANY STATE other than Denmark to Greenland, Norwegian government
as undertakings which recognized DANISH over all GREENLAND as evidenced
by hey entered Bilateral and multilateral agreements (Norway and Denmark have
enetered agrrements wherein Greenland was described as Denmark’s colony) and
the existence of the Ihlen Declaration (Norway debarred herself or under obligation
13
 to refrain from contesting a historic Danish sovereignty)
Australia instituted a dispute proceeding against France concerning tests of nuclear One of the basic principles governing the creation
weapons conducted in the South Pacific region. France stated that it considered the and performance of
court manifestly lack jurisdiction and refrained from appearing at the public hearings legal obligations, whatever their source, is the
and from filing any pleadings. However, there was an announcement made by the principle of good faith. Trust and
French government in 1974 hat it had finished the nuclear atmospheric tests. Such confidence are inherent in international co-
being the case, the court by 9 votes to 6, has found that the claim of Australia no operation, in particular in an age when
longer had any object and that the Court was therefore not called upon to give a this co-operation in many fields is becoming
decision thereon. In the reasoning of its Judgment, the Court adduces the following increasingly essential. Just as the very
considerations: rule of pacta sunt servanda in the law of treaties is
• Even before turning to the questions of jurisdiction and admissibility, the Court has based on good faith, so also is the
first to consider the essentially preliminary question as to whether a dispute exists binding character of an international obligation
and to analyse the claim submitted to it; assumed by unilateral declaration.
NUCLEAR TESTS CASE • the original and ultimate objective of Australia is to obtain a termination of those Thus interested States may take cognizance of
(AUSTRALIA V. FRANCE) tests; unilateral declarations and place
• France, by various public statements made in 1974, has announced its intention, confidence in them, and are entitled to require that
following the completion of the 1974 series of atmospheric tests, to cease the the obligation thus created be
conduct of such tests; respected.
• Court finds that the objective of Australia has in effect been accomplished,
inasmuch as France has undertaken the obligation to hold no further nuclear tests in
the atmosphere in the South Pacific;
• the dispute having thus disappeared, the claim no longer has any object and there is
nothing on which to give judgment
Thus the Court finds that no further pronouncement is required in the present case. It does not
enter into the adjudicatory functions of the Court to deal with issues in abstract, once it has
reached the conclusion that the merits of the case no longer fall to be determined. The object
of the claim having clearly disappeared, there is nothing on which to give judgment
The Montevideo Convention on the Rights and Duties of
States is a treaty signed at Montevideo, Uruguay, on December 26, 1933,
during the Seventh International Conference of American States. The
Convention codifies the declarative theory of statehood as accepted as part of
customary international law. At the conference, United States President Franklin
D. Roosevelt and Secretary of State Cordell Hull declared the Good Neighbor
Montevideo Convention on
Policy , which opposed U.S. armed intervention in inter-American affairs. The
Rights and Duties of States
convention was signed by 19 states. The acceptance of three of the signatories
(1934)
was subject to minor reservations. Those states were Brazil, Peru and the United
States.
As a restatement of customary international law, the Montevideo Convention
merely codified existing legal norms and its principles and therefore does not
apply merely to the signatories, but to all subjects of international law as a
whole.
Declaration on Granting the
Independence To Colonial
Countries
and Peoples
AUSTRO-GERMAN
CUSTOMS UNION CASE,
ADVISORY OPINION,
France paid the US compensation to be distributed among US (from the notes of the Commission) Independence
nationals in respect of certain damage caused during the Napoleonic Wars. as a requirement of statehood means, to some
Some claims were made that related to injuries apparently caused by Holland extent, factual, as
FRENCH INDEMNITY OF and Denmark and the question arose whether France was responsible for them. well as legal, independence from other states.
1831 The report of the US Commission that distributed the compensation was Although it is
supplemented by notes of Commissioner Kane indicating the general principles accepted that states may influence the policies and
upon which the Commission had relied. The issue is WON France was liable conduct of
for the injuries caused by Holland and Denmark? YES for Holland, NO for
14
 Denmark. another state, there may come a point, where
France was liable for injuries caused by Holland because Holland was factual dependence
already a dependent kingdom (to France) and King Louis was merely a by one state upon another is so great that it is really
sovereign existing only by name. It was noted that Holland after some 10 years no more than a
of political changes during which, though nominally independent, she was “puppet” state and will not be treated as meeting
tributary to all the projects of France and had received King Louis, a king of the the requirement
Napoleon family. Although King Louis had sovereignty over Holland, he was of independence.
reminded that the country was a French Conquest and that his highest and
imprescriptible duties were to the imperial crown, France. His submission was
seen in the French-Dutch Treaty of March 16, 1810 where King Louis had no
choice but to yield as he was a prisoner at the time at Paris.
France was not liable for the injuries caused by Denmark because
Denmark was an actual sovereign state. The question that was raised before
the Commission pertained to France and not Denmark. One cannot be charged
with the acts of the other; for neither was dependent. The conduct of King
Frederic (King of Denmark) was an act of his own; the Kingdom of Denmark
was then, as now, independent.
Commissioner Kane explained that the broad distinction between the cases of
Holland and Denmark which mainly referred to independence as a requirement
of statehood. Holland was a nominal sovereignty (sovereign only by name) and
Denmark was an actual sovereignty.
Here, the U.S. is questioning several provisions revolving he question now is whether or not France is also
around the question of US imports without official allocation of currency in bound by
the French Zone of Morocco were subject to licensing control, the extent of this principle of equality, and thus making it
consular jurisdiction of the U.S. in the same area, and whether or not U.S. improper for France to put itself
nationals are subject to taxation. in a more favored position than the other States. It
As regards the regulation of imports, the ICJ held that the General Act of is not disputed that
Algeciras guarantees economic liberty to all participating countries. At the Morocco, even under the protection of the French
time this case was decided, Morocco was still under the Protectorate of Government, has
France. The U.S. now argues that several provisions of a residential decree RETAINED ITS PERSONALITY AS A STATE UNDER
issued which states that all imports without official allocation of currency INTERNATIONAL LAW. The rights of France in
were subject to a licensing system, except for imports coming from Morocco are defined by
France/French Union. The ICJ held that Morocco, being under the the Protectorate Treaty of 1912, and therefore,
Protectorate of France, did not cede its personality as a State under France is not accorded a
CASE CONCERNING RIGHTS international law. Therefore, following the principle of economic equality, privileged position even in Morocco, the state it
OF NATIONALS OF THE France cannot now give itself advantages over other states with mostfavored- protects.
UNITED nation clauses such as the U.S.
STATES OF AMERICA IN As regards the extent of consular jurisdiction, the ICJ held that the U.S.
MOROCCO exercises consular jurisdiction in the French Zone of Morocco because
several Conventions such as the one between France and Great Britain,
presuppose that the U.S. was already exercising consular jurisdiction at the
time. Therefore, U.S.’ consular jurisdiction is only to the extent that these
provisions will be put into effect.
Lastly, the ICJ held that the U.S. is bound by Moroccan laws even if it does
not give its prior assent. The right of assent that the U.S. is trying to invoke
only pertains to the need for U.S.’ assent before its own consular court in
Morocco can apply Moroccan law to its nationals. This does not mean that
the consular courts have the power to completely prohibit the application of
Moroccan laws to their nationals. As for taxation, the exemption granted is
only for proteges – people in the diplomatic service – and that the blanket
exemption has been abrogated when Spain and Britain abrogated the same
rights because this is what U.S. was trying to invoke.
The Principality of Lichtenstein sought admission to the League
REPORT OF THE FIFTH
of Nations. In order to be admitted to the membership, it required that any fully
COMMITTEE OF FIRST
governing state, Dominion or Colony should be able to observe and guarantee
ASSEMBLY
the fulfillment of international obligations and such regulations imposed under
15
 OF THE LEAGUE OF the covenant, with regard to its military, naval and air forces and armaments
NATIONS, WITH (military weapons and equipment). However, although the application was in
REFERENCE TO order, the Commission rejected the application of Lichtenstein for the ultimate
ADMISSION TO THE reason that the Principality of Lichtenstein will not be able to discharge al the
LEAGUE OF LICHTENSTIEN international obligations that may be prescribed.
The Principality of Lichtenstein has been recognized as a de jure government, as
proven by the treaties it has concluded and that it possesses a stable government
and fixed frontiers, there is no doubt that it is a sovereign state. However, by
reason of its limited area, small population, and geographical position, it had to
delegate certain aspects of its sovereignty. It even had diplomatic
representations from other countries, and had to rely on such for decisions in
certain judicial cases. Furthermore, the Principality of Lichtenstein has no army.
Thus, it would be difficult for Lichtenstein to comply with the international
obligations that may be set in accordance with the Covenant.
However, the League of Nations sought the special committee to look for other
means to allow these kind of sovereign states to be admitted, although not as
ordinary members.
Tinoco, then Secretary of War under Pres. Gonzalez, used the Non-recognition may have aided the succeeding
army and the navy to seize the government and become the commander-in-chief. government to
He constituted a provisional government at once and summoned the people to an come into power; but subsequent presentation of
election for deputies to a constituent assembly on the first of May, 1917. Tinoco claims based on the de facto
then was inaugurated as the President to administer his powers under the former existence of the previous government and its
constitution until the creation of a new one. A new constitution was adopted dealings does not work an injury to
June 8, 1917, supplanting the constitution of 1871. For a full two years Tinoco the succeeding government in the nature of a fraud
and the legislative assembly under him peaceably administered the affairs of the or breach of faith.
Government of Costa Rica, and there was no disorder of a revolutionary
character during that interval. However, he renounced his presidency because of
his health. Under the government of Barquero, the old constitution was restored.
Subsequently, Congress passed a Law of Nullities which invalidated all contracts
between the executive power and private persons, made with or without approval
TINOCO ARBITRATION of the legislative power covering the period of the Tinoco government. Because
of this, Great Britain made claims on the basis done to its nationals caused by the
annulments. Costa Rica denies its liability and argued that since Great Britain
did not recognize the Tinoco government, it is now estopped from claiming.
W/N Great Britain was estopped from its claim because of its non-recognition of
the Tinoco Regime? NO, the failure to recognize the de facto government did
not lead the succeeding government to change its position in any way upon the
faith of it. Non-recognition may have aided the succeeding government to come
into power; but subsequent presentation of claims based on the de facto
existence of the previous government and its dealings does not work an injury to
the succeeding government in the nature of a fraud or breach of faith. The nonrecognition
of the Tinoco regime by Great Britain did not dispute the de facto
existence of that regime. There is no estoppel since the successor government
had not been led by British non-recognition to change its position.
In question are the legal ties and the existence of the Sultan of Morroco and Legal ties must be understood as the legal ties as
some of the tribes in Western Sahara. Back then, the tribes consisted of nomadic may affect the policy to be
people who transferred from one portion of land to another. This fact was taken followed in the decolonization of Western Sahara.
into consideration by the Courts in arriving at a conclusion for the advisory The court cannot consider
opinion. The court couldn’t limit themselves to the question of legal ties in the view that the ties could be limited to ties
relation to territory alone. established directly with the
Western Sahara Case
According to the Court, there are legal ties between the (1)Western Sahara and territory. It must also consider the ties with its
the Kingdom of Morocco and the legal ties between(2) Western Sahara and the population.
Mauritian entity.
As for the first pair, the court says that even considering the special structure of
Morocco which claims its authority over the tribes via religion and not territory,
there are no legal ties in relation to sovereignty over territory. But there are legal
16
 ties between Western Sahara and the Kingdom of Morocco because of allegiance
to the Sultan of Morocco. The Sultan, in some of the tribes, was recognized by
some of the tribes as one who has authority and influence over them.
As for the second pair, the court said that even though there existed between the
two linguistic, religious etc ties, there was no common institution or organ.
The court cannot consider Mauritanian entity as a character of personality or
corporate entity distinct from the several emirates or tribes which composed it.
Therefore, there was no legal tie of allegiance or sovereignity. BUT! The court
did consider that because of the nature of the nomadic tribes that migrated, there
are rights over the lands that the nomadic tribes migrated through. This
constituted the legal ties between the two states.
An action for damages was instituted by the Commonwealth The High Court has jurisdiction to entertain an
against the State of New South Wales because of a collision which took place in action for a tort
Port Jackson. The defendant (New South Wales) argued that the High Court has brought by the Commonwealth against a State
no jurisdiction to entertain an action brought by the Commonwealth against the without the consent of that State.
State of New South Wales without the consent of that State. The case was In this case, the State of New South Wales is not a
brought before the Full Court. The issue is WON the High Court has “sovereign State” which is
jurisdiction to try cases filed against the State of New South Wales without its protected by the principle of international comity.
consent. The Court ruled in the affirmative saying that the Australian
Commonwealth of South Constitution conferred jurisdiction to it. More importantly (and in relation to our
Australia v. State of New topic), the State of New South Wales cannot argue that the Commonwealth sued
South Wales it without its consent. As a consequence of the absolute independence of every
sovereign authority and of the international comity which induces every
sovereign State to respect the independence of every other sovereign State, each
State declines to exercise by means of any of its Courts any of its territorial
jurisdiction. There is nothing in the Constitution to prevent the Court from
observing in a proper case the respect due to the independence and dignity of
foreign nations on the principle of international comity. In this case, however,
the State of New South Wales, as an Australian State, cannot be regarded as a
sovereign State. It is not a foreign country as regards the Commonwealth.
After the war of 1914-1918, South-West Africa ws placed under a The international status of the Territory results
Mandate conferred upon the Union of South Africa. The Union was to have full from the
power of administration and legislation over the territory. After WW II, the international rules regulating the rights, powers
Union alleged that the Mandate System has lapsed and sought recognition from and obligations relating to the
the UN to integrate South-West Africa to the Union. The UN declined and administration of the Territory and the supervision
instead suggested that South-West Africe be placed under Trusteeship of the of that administration. The
Union. The Union refused, hence the GA went to the ICJ for advisory opinion. Mandatory (the Union herein) has no competence
INT’L STATUS OF SOUTH-
The ICJ held that the Union cannot unilaterally modify the international status of to modify unilaterally the
WEST AFRICA
the Territory under it, or any other international rules. The consent of the international status of the Territory or any of these
Council of the League, now the GA of the UN, is required for any medication. international rules. Art. 7 of
The ICJ also held that putting the territories is not in fact mandatory for the the Mandate expressly provides that the consent of
Union to do, but that the Mandatory (Union) was still under an obligation to give the Council of the League of
an account of its administration to the UN, which was legally qualified to Nations (now UN GA) is required for any
discharge the supervisory functions formerly exercised by the League of modification of the terms of the
Nations. Mandate.
The Mandate for South West Africa was terminated. This In the view of the Court, the termination of the
LEGAL CONSEQUENCES Mandate was created by the League of Nations to aid humanity as a sacred trust Mandate and the
FOR STATES OF THE of civilisation. The concept of sacred trust was given to all territories that have declaration of the illegality of South Africa’s
CONTINUED not yet attained self-government. The Mandate gave South Africa the right to presence in Namibia are opposable
PRESENCE OF SOUTH administer Namibia. But, due to several reasons, the General Assembly to all States in the sense of barring erga omnes the
AFRICA IN NAMIBIA terminated such mandate. Security Council declared that the continued presence legality of the situation which
(SOUTH-WEST AFRICA) of the South African authorities in Namibia was illegal and that all acts taken by is in violation of international law.
NOTWITHSTANDING SE- the South African Government on behalf of or concerning Namibia after the
CURITY COUNCIL termination of the Mandate were illegal and invalid. Security Council decided to
RESOLUTION request of the Court an advisory opinion on the legal consequences for States of
the continued presence of South Africa in Namibia. Hence, this document. Read
17
 Ratio for the consequences.
The ICJ was requested by the UN General Assembly to give its
Advisory Opinion on whether or not the declaration of the independence of
Kosovo in 17 February 2008 by the persons who acted together in their capacity
as representatives of the people of Kosovo outside the framework of the interim
administration violated general international law.
The Court first notes that during the second half of the twentieth century, the
international law of self-determination developed in such a way as to create a
right to independence for the peoples of non-self-governing territories and
peoples subject to alien subjugation, domination and exploitation. A great many
new States have come into existence as a result of the exercise of this right.
There were, however, also instances of declarations of independence outside
this context. The practice of States in these latter cases does not point to the
emergence in international law of a new rule prohibiting the making of a
declaration of independence in such cases.
The Court observes, however, that while the Security Council has condemned
Accordance with particular declarations of independence, in all of those instances it was making a
International Law of the determination as regards the concrete situation existing at the time that those
Unilateral Declaration of declarations of independence were made; it states that “the illegality attached to
Independence in Respect of the declarations of independence thus stemmed not from the unilateral character
Kosovo, of these declarations as such, but from the fact that they were, or would have
been, connected with the unlawful use of force or other egregious violations of
norms of general international law, in particular those of a peremptory character
(jus cogens)”.
For the reasons already given, the Court considers that general international law
contains no applicable prohibition of declarations of independence.
Accordingly, it concludes that the declaration of independence of 17 February
2008 did not violate general international law.
The Court further arrives at the conclusion, the authors of the declaration of
independence of 17 February 2008 did not act as one of the Provisional
Institutions of Self-Government within the Constitutional Framework created by
the United Nations, but rather as persons who acted together in their capacity as
representatives of the people of Kosovo outside the framework of the interim
administration. Or in other words, the actors disregarded the framework set up
by the UN Security Council, but instead declared independence on its own
terms.
Following the close referendum result in the 1995 referendum, Government of Canada initiated a reference to the Supreme Self-determination is about nations, and not specific
Court to question the legal issues surrounding the unilateral secession of Quebec. people inside the nation unless they are subjugated
The Quebec government chose not to participate in the decision, so André Jolicoeur was assigned as an amicus curiae by or oppressed.
In Re Seccession of Quebec
the Court. He argued that the matter was purely a matter of international law that the Supreme Court of Canada has no
jurisdiction over, and that the matter was entirely a political question and not justiciable
Canada wins. Quebec can’t just leave.
Petitioners, the Province of Cotabato, comprised of several The MOA-AD contains many provisions which are
groups, challenges the constitutionality of the MOA- AD (Memorandum of consistent
Agreement in the Ancestral Domain) entered into between the Government of with the international legal concept of association,
the Republic of the Philippines (GRP) and the MILF. On August 2, 2008, the specifically the following: (a)
GRP and MILF were scheduled to sign the MOA-AD in Kuala Lumpur, the BJE’s capacity to enter into economic and trade
Malaysia. However, upon the initiative of several groups, the SC issued a relations with foreign
Province of North Cotabato Temporary Restraining Order Enjoining the GRP from signing the same. The countries, (b) the commitment of the Central
v. GRP Peace Panel MOA- AD is challenge on several grounds, among which is the creating of a Government to ensure the BJE’s
“Bangsamoro Juridical Entity” (BJE) to which it grants the authority and participation in meetings and events in the ASEAN
jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro and the specialized UN
people. The MOA-AD seeks to introduce the concept of an “associative agencies, and (c) the continuing responsibility of
relationship” between the BJE and the Central Government. Issue are: (1) WoN the Central Government over
the MOA-AD is inconsistent with the Constitution and laws; (2 ) W/N the external defense, etc. These provisions of the MOA
signing of the MOA-AD, the Government of the Republic of the Philippines indicate that the Parties
18
 would be binding itself: (a) to create and recognize the Bangsamoro Juridical aimed to vest in the BJE the status of an associated
Entity (BJE) as a separate state, or a juridical, territorial or political subdivision state or, at any rate, a status
not recognized by law; (b) to revise or amend the Constitution and existing laws closely approximating it. This cannot be since the
to conform to the MOA. The court held that MOA-AD is inconsistent with the Constitution provides that, No
constitution and laws because it would have included foreign dignitaries as province, city, or municipality, not even the ARMM,
signatories. The mere fact that in addition to the parties to the conflict, the peace is recognized under our
settlement is signed by representatives of states and international organizations laws as having an “associative” relationship with
does not mean that the agreement is internationalized so as to create obligations the national government. The
in international law. SC held further that the signing of the MOA-AD, the concept implies powers that go beyond anything
Government of the Republic of the Philippines would be binding itself to create granted by the Constitution to
and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a any local or regional government.
juridical, territorial or political subdivision not recognized by law MOA-AD The Constitution does not contemplate any state in
contains many provisions which are consistent with the international legal this jurisdiction other than
concept of association. These provisions of the MOA indicate that the Parties the Philippine State, much less does it provide for a
aimed to vest in the BJE the status of an associated state or, at any rate, a status transitory status that aims to
closely approximating it. prepare any part of Philippine territory for
independence.
Positive International law does not recognize the
right of national groups, as
such, to separate themselves from the State of
which they form part by the
simple expression of a wish. The grant or refusal of
the right to a portion of tits
population of determining its own political fate by
plebiscite or by some other
method, is, exclusively, an attribute of the
sovereignty of every State.
INTERNATIONAL ORGANIZATIONS
On 17 July 1998, 120 States gathered in Rome for the Rome
Diplomatic Conference to adopt the Statute for the Establishment of the
International Criminal Court . The International Criminal Court (ICC) has
jurisdiction to try individuals for the most serious crimes of international
concern. It is permanent in character and not limited by geographical
boundaries.
Historical Background
The genesis of the ICC began in 1946 with the realization that important
principles and precedents should serve as basis for further codification of
international law. UN Security Council established ad hoc tribunal for such
crimes, which led to the realization that there was no mechanism to punish
perpetrators of heinous crimes when national systems failed or were unwilling to
take action against them.
Ebdalin: “The International
Statute in Brief
Criminal Court: An
Established as a permanent institution, has the power to exercise jurisdiction
Overview
over persons for the most serious crimes of international concern and
complementary to national criminal jurisdictions. Crimes covered are genocide,
crimes against humanity, war crimes, and the crime of aggression
Philippine Position
Philippines was for the establishment of an effective and efficient ICC. In order
for it to be effective and efficient, the Philippines submitted that the ICC should
have its own international legal personality
Salient Issues
Crime of aggression remains undefined and will not come within the
jurisdiction of the Court until a definition is adopted.
Article 17 of the Statute – Standards to determine whether a State is unwilling or
unable to carry out the case.
Role of the Security Council in the ICC
19
 After the assassination of Count Folke Bernadotte (United Nations UN can claim reparation not only in respect of
Mediator in Palestine) and other members of the United Nations during a damage caused to
Mission in Palestine, Jerusalem on September 1948, the General Assembly itself, but also in respect of damage suffered by the
sought the opinion of the ICJ on whether UN had the capacity to bring an victim or persons entitled
international claim against the State responsible with a view to obtaining through him. Although, according to the traditional
reparation for damage caused to the UN and to the victim and the manner the rule, diplomatic protection
reparation could be reconciled with the State which the victim is a national. In had to be exercised by the national State, the UN
the ICJ’s Advisory Opinion of 11 April 1949, it held that the UN can claim should be regarded in
reparation not only in respect of damage caused to itself, but also in respect of international law as possessing the powers which,
damage suffered by the victim or persons entitled through him. The capacity to even if they are not expressly
REPARATION FOR INJURIES claim reparation caused to itself is based on the UN’s intended functions and stated in the Charter, are conferred upon the UN as
SUFFERED IN THE SERVICE rights which could only be explained on its possession of a large measure of being essential to the
OF THE UNITED NATIONS international personality and the capacity to operate upon the international plane. discharge of its functions.
Although, according to the traditional rule, diplomatic protection had to be
exercised by the national State, the UN should be regarded in international law
as possessing the powers which, even if they are not expressly stated in the
Charter, are conferred upon the UN as being essential to the discharge of its
functions. Therefore, the capacity to claim damage done to its agents stems from
necessity of supporting and protecting its agents when they are carrying out the
duties entrusted to them by the UN in the most disturbed parts of the world. In
resolving the risk of possible competition between the UN and the victim’s
national State, ICJ held that it could be eliminated either by means of a general
convention or by a particular agreement in any individual case.
INDIVIDUALS AND CORPORATIONS
Abstract: Summary:
International law today addresses the conduct of private corporations in a variety of It is unlikely that states will agree to a wholesale
areas. With very few exceptions, however, international law regulates corporate extension of current human rights
conduct indirectly – that is, by requiring states to enact and enforce regulations obligations to private corporations backed by an
applicable to corporations and other non-state actors. Only a small number of international enforcement
international legal norms - primarily those relating to war crimes, crimes against mechanism, and if the creation of such obligations
humanity, and forced labor – apply directly to non-state actors. Scholars have argued without an enforcement
forcefully that international law should move in the direction of directly imposing mechanism would do little for human rights, a
obligations on corporations. These arguments overlook important aspects of the number of other legal strategies
problem. If international legal norms were extended to corporations and backed by remain for protecting the interests of those
effective enforcement mechanisms, states would lose control over compliance with adversely affected by corporate conduct.
norms. If not accompanied by an effective enforcement mechanism, the norms would One possibility would be an agreement imposing
probably be widely disregarded. The first option is likely to be strongly resisted by discrete human rights obligations
states; the second option would do little for the interests sought to be protected and on private corporations, such as the obligation to
Direct v. Indirect
would be bad for international law. refrain from torture. Whether states
Obligations of Corporations
would be willing to extend certain human rights
Under International
obligations directly to non-state
Law
actors will likely depend in large part on the
strength of their conviction that
violations of the obligation should never be
condoned. Another possibility would be
to impose more significant obligations on private
corporations indirectly that is, by
requiring states to enact and enforce such
obligations.
Whether agreements of either type would be
feasible or wise are entirely separate
questions. As noted above, those concerned about
corporate conduct in developing
countries that impinges upon human rights have
turned their attention to international

20
 law because of the perceived unwillingness or
inability of the governments of those
countries to control the large multinationals that
are harming their citizens. Although
few would shed tears over the circumvention of
governments unwilling to protect
their own citizens, such circumvention is not
entirely unproblematic and is likely to
be resisted. An alternative would be to focus on
eliminating corruption and
promoting democratic governance. The
international community has taken steps in
both areas; undoubtedly much more should be
done. But even if bad governments
were made good, there would remain in
discrepancy in enonomic power between
large corporations and small governments, and the
feared race to the bottom. A race
to the bottom is, of course, a collective action
problem, and an obvious solution to a
collective action problem is an international
agreement. But is a global convention
imposing human rights obligations on corporations
the answer? The states facing the
collective action problem are the developing
countries confronting large
multinationals. Perhaps the best solution would be
an agreement by developing
countries regarding standards for multinationals
operating in their territory
The case brings under the prosecution various individuals and Crimes against International Law are committed by
organizations involved who were active during WWII, particularly those who men, not by abstract entities, and only by
were connected to the Nazi regime. The indictment charges the defendants with punishing individuals who commit such crimes
Crimes Against Peace, with War Crimes, Crimes Against Humanity, and with can the provisions of International Law be
participating in the formulation or execution of a common Plan or Conspiracy to enforced.
Commit all these Crimes. Defendant Robert Ley committed suicide while in
detention, while Defendant Martin Bormann was tried in absentia. To this end,
the Prosecution presented a voluminous body of evidence pointing to the Nazi’s
planning or aggressive war, which resulted in the invasion of Austria, the
seizure of Czecchoslovakia, the aggression against Poland, the invasion of
Denmark and Norway, the invasion of Belgium, the Netherlands, and
JUDGMENT OF THE Luxemburg, the aggression against Yugoslavia and Greece, the aggressive war
NUREMBERG against the Union of Soviet Socialist Republics, violations of the Hague
INTERNATIONAL Conventions, the Versailles Treaty, Treaties of Mutual Guarantee, Arbitration,
MILITARY TRIBUNAL and Non-Aggression, and the Kellogg-Briand Pact. The Prosecution also
presented evidence on the war crimes and crimes against humanity alleged to
have been committed by the defendants, to wit: Murder and Ill-treatment of
prisoners of war, murder and ill-treatment of civilian population, slave labour
policy, and the persecution of the Jews. The issue before the Tribunal is whether
it has jurisdiction over the persons and organizations charged with the above
crimes. The Tribunal held that they did. It held that it is bound by the Charter or
the League of Nations, granting it jurisdiction over Crimes Against Peace, War
Crimes, and Crimes Against Humanity. It held further that war is essentially an
evil thing. Its consequences are not confined to the belligerent States alone, but
affect the whole world. To initiate a war of aggression, therefore, is not only an
international crime; it is the supreme international crime differing only from
21
other war crimes in that it contains within itself the accumulated evil of the
whole. The Charter makes the planning or waging of a war of aggression or a
war in violation of international treaties a crime; and it is therefore not strictly
necessary to consider whether and to what extent aggressive war was a crime
before the execution of the London Agreement. It was urged on behalf of the
defendants that a fundamental principle of all law — international and
domestic - is that there can be no punishment of crime without a pre-existing
law. "Nullum crimen sine lege, nulla poena sine lege." To assert that it is unjust
to punish those who in defiance of treaties and assurances have attacked
neighbouring States without warning is obviously untrue, for in such
circumstances the attacker must know that he is doing wrong, and so far from it
being unjust to punish him, it would be unjust if his wrong were allowed to go
unpunished. Occupying the positions they did in the Government of Germany,
the defendants, or at least some of them, must have known of the treaties signed
by Germany, outlawing recourse to war for the settlement of international
disputes; they must have known that they were acting in defiance of all
International Law when in complete deliberation they carried out their designs
of invasion and aggression. It was submitted that International Law is concerned
with the actions of sovereign States and provides no punishment for individuals;
and further, that where the act in question is ad act of State, those who carry it
out are not personally responsible, but are protected by the doctrine of the
sovereignty of the State. In the opinion of the Tribunal, both these submissions
must be rejected. That International Law imposes duties and liabilities upon
individuals as well as upon States has long been recognized. Crimes against
International Law are committed by men, not by abstract entities, and only by
punishing individuals who commit such crimes can the provisions of
International Law be enforced. the very essence of the Charter is that individuals
have international duties which transcend the national obligations of obedience
imposed by the individual State. He who violates the laws of war cannot obtain
immunity while acting in pursuance of the authority of the State if the State in
authorizing action moves outside its competence under International Law. The
true test, which is found in varying degrees in the criminal law of most nations,
is not the existence of the order, but whether moral choice was in fact possible.
Planning and preparation are essential to the making of war. In the opinion of
the Tribunal aggressive war is a crime under International Law. The Charter
defines this offence as planning, preparation, initiation, or waging of a war of
aggression "or participation in a common plan or conspiracy for the
accomplishment . . . of the foregoing." Conspiracy is not defined in the Charter.
But in the opinion of the Tribunal the conspiracy must be clearly outlined in its
criminal purpose. It must not be too far removed from the time of decision and
of action. The planning, to be criminal, must not rest merely on the declarations
of a Party programme, such as are found in the twenty-five points of the Nazi
Party, announced in 1920, or the political affirmations expressed in Mein
Kampf in later years. The Tribunal must examine whether a concrete plan to
wage war existed, and determine the participants in that concrete plan. the
evidence establishes the common planning to prepare and wage war by certain
of the defendants. It is immaterial to consider whether a single conspiracy to the
extent and over the time set out in the Indictment has been conclusively proved.
Continued planning, with aggressive war as the objective, has been established
beyond doubt. But the Charter does not define as a separate crime any
conspiracy except the one to commit acts of aggressive war. Article 10 of the
Charter makes clear that the declaration of criminality against an accused
organization is final, and cannot be challenged in any subsequent criminal
proceeding against a member of the organization. In effect, therefore, a member
of an organization which the Tribunal has declared to be criminal may be
subsequently convicted of the crime of membership and be punished for that
22
 crime by death. Article 9, it should be noted, uses the words "The Tribunal may
declare," so that the Tribunal is vested with discretion as to whether it will
declare any organization criminal. This discretion is a judicial one and does not
permit arbitrary action, but should be exercised in accordance with well-settled
legal principles, one of the most important of which is that criminal guilt is
personal, and that mass punishments should be avoided. If satisfied of the
criminal guilt of any organization or group, this Tribunal should not hesitate to
declare it to be criminal because the theory of "group criminality" is new, or
because it might be unjustly applied by some subsequent tribunals. On the other
hand, the Tribunal should make such declaration of criminality so far as
possible in a manner to ensure that innocent persons will not be punished. A
criminal organization is analogous to a criminal conspiracy in that the essence
of both is co-operation for criminal purposes. There must be a group bound
together and organized for a common purpose. The group must be formed or
used in connection with the commission of crimes denounced by the Charter.
Since the declaration with respect to the organizations and groups will, as has
been pointed out, fix the criminality of its members, that definition should
exclude persons who had no knowledge of the criminal purposes or acts of the
organization and those who were drafted by the State for membership, unless
they were personally implicated in the commission of acts declared criminal by
Article 6 of the Charter as members of the organization. Membership alone is
not enough to come within the scope of these declarations. Since declarations d
criminality which the Tribunal makes will be used by other courts in the trial of
persons on account of their membership in the organizations found to be
criminal, the Tribunal feels it appropriate to make the following
recommendations:
1. That so far as possible throughout the four zones of occupation in Germany
the classifications, sanctions and penalties be standardized. Uniformity of
treatment so far as practicable should be a basic principle. This does not, of
course, mean that discretion in sentencing should not be vested in the court; but
the discretion should be within fixed limits appropriate to the nature of the
crime.
2. Law No. 10, to which reference has already been made, leaves punishment
entirely at the discretion of the trial court even to the extent of inflicting the
death penalty. The De-Nazification Law of 5th March, 1946, however, passed
for Bavaria, Greater Hesse, and Wü rttemberg-Baden, provides definite
sentences for punishment in each type of offence. The Tribunal recommends
that in no case should punishment imposed under Law No. 10 upon any
members of an organization or group declared by the Tribunal to be criminal
exceed the punishment fixed by the De-Nazification Law. No person should be
punished under both laws.
3. The Tribunal recommends to the Control Council that Law No. 10 be
amended to prescribe limitations on the punishment which may be imposed for
membership in a criminal group or organization, so that such punishment shall
not exceed the punishment prescribed by the De- Nazification Law. The
Indictment asks that the Tribunal declare to be criminal the following
organizations: The Leadership Corps of the Nazi Party; the Gestapo; the SD; the
SS; the SA; the Reich Cabinet, and the General Staff and High Command of the
German Armed Forces.
A decree to nationalize all Texaco’s rights, interest and property in Though international law involves subjects of a
Libya was promulgated by Libya. This action of the Libyan Government led Texaco diversified nature, legal international
to request for arbitration, but it was refused by Libya. A sole arbitrator was capacity is not solely attributable to a state. A
TEXACO v. LIBYA appointed by the International Court of Justice on Texaco’s request. Libya contests private contracting party, unlike a
that its acts were functions of their sovereignty. The issue in this case is WoN state, has only a limited capacity and is limited to
international law applies to contracts entered into by States and private companies. invoke only those rights that he
The tribunal used the agreement between the two parties to decide the case saying derives from his contract.
23
 that the principle of international law on contracts is applicable. The tribunal found
Libya to have breached its obligations under the Deeds of Concessions and was also
legally bound to perform in accordance with their terms.
By a petition Mattia Count Pace asked the Lieutenant of the As as sovereign under International Law, the
Sovereign Order of Jerusalem and Malta for permission to endow, an Sovereign Military
ecclesiastical benefice in favour of the family. The request was granted and by a Order of Malta enjoyed independence from the
deed executed in Rome the Church of S. Rocco was endowed for the domestic legislation of Italy and
maintenance of an incumbency which was to descend in the founder’s family in every other state.
the mail line according to primogeniture and when the line became extinct, was
to pass to the Order. Mattia Pace was succeeded by his son, Annibale, who sold
part of the land on which the Church stood to several persons, including the
petitioners. Annibale died in 1921. The Council of the Sovereign Order of Malta
granted investiture of the benefice to the eldest son, Guisseppe Pace, subject to
the condition that he recovered the part of the property sold by his father.
However, the Tribunal of Avezzano made a declaration that the acts by which
the benefice was endowed were null and void on the ground that State
authorization had not been obtained for the acquisition of the property under the
Law of June 5, 1980. The petititioners argued that the endowment of the
benefice was a nullity because the approval required by a Neopolitan Law of
1819 had not been obtained and because the Church was at the material date in
NANNI v. PACE AND THE Neopolitan Territory. They argued also that the Order must be regarded as a
SOVEREIGN ORDER OF religious institution in the canonical sense, and that a gift or endowment in
MALTA favour of the Order required State authorization by the Law of June 5, 1980.
*Note: However, a higher court ordered the restitution, hence, this petition by
Nanni and Others. Issue: WoN restitution of the properties is proper. YES,
because the Sovereign Order of Malta enjoyed independence from domestic
legislation of Italy. The court dealt at some length with the legal character of the
endowment according to Italian law; it rejected, in particular, the suggestion that
the founder had created a fideicommissum. The Court also rejected the
proposition that the Order was a moral entity in Italian Law. Such a proposition
was entirely refuted by the essential juridical charater of the Sovereign Order of
Jerusalem and Malta resulting from its origins, its historical development and the
position actually held by it in the international legal community. It was inexact
to regard the Order as a religious institution in the canonical sense. The Court
pointed out that although the Order had adopted a monastic rule “such monastic
constitution had not in any way brought about a substatntial transformation of
the community… which preserved entirely unaltered its characted as a
community of hospitallers.” Just as the Order had a special legal character, so
had the endowment which, for reasons stated by the Court, did not require the
State authorization as contented by the petitioners.
Formal peace talks between the GRP and MILF were held in Public statements of a state representative may be
Tripoli, the outcome of which was the GRP-MILF Tripoli Agreement on Peace construed as a
containing the basic principles on the following aspects of negotiation: Security, unilateral declaration only when the following
Rehabilitation and Ancestral Domain. Talks were held between the parties in conditions are present: the
Kuala Lumpur, eventually leading to the crafting of the draft MOA-AD in its statements were clearly addressed to the
final form, which was set to be signed last August 5, 2008 by the GRP and international community, the state
MILF. The main body of the MOA-AD is divided into four strands: Concepts intended to be bound to that community by its
Province of North Cotabato and Principles, Territory, Resources and Governance. Under Concepts and statements, and that not to give
v. GRP Peace Panel Principles, MOA-AD mentions the “Bangsamoro Juridical Entity” (BJE) to legal effect to those statements would be
which it grants the authority and jurisdiction over the Ancestral Domain and detrimental to the security of
Ancestral Lands of the Bangsamoro. The Bangsamoro people are acknowledged international intercourse.
as having the right to self-governance, which right is said to be rooted on
ancestral territoriality. The signing of the MOA-AD between the GRP and the
MILF did not materialize because the Court issued a TRO due to petitions filed
to declare the MOA-AD unconstitutional. Issue is WoN the MOA-AD is
inconsistent with the Constitution and laws. The Court held that the MOA-AD
24
 was inconsistent with laws and the Constitution. The MOA-AD would have
included foreign dignitaries as signatories. Representatives of other nations were
invited to witness its signing in Kuala Lumpur. These circumstances readily
lead one to surmise that the MOA-AD would have had the status of a binding
international agreement had it been signed. Assessing the MOA-AD in light of
this, it would not have amounted to a unilateral declaration on the part of the
Philippine State to the international community. The Philippine panel did not
draft the same with the clear intention of being bound thereby to the
international community as a whole or to any State, but only to the MILF.
While there were States and international organizations involved, one way or
another, in the negotiation and projected signing of the MOA-AD, they
participated merely as witnesses or, in the case of Malaysia, as facilitator. The
mere fact that in addition to the parties to the conflict, the peace settlement is
signed by representatives of states and international organizations does not
mean that the agreement is internationalized so as to create obligations in
international law.
The United States and the Netherlands submitted to the Permanent Discovery is not enough to establish sovereignty; it
Court of Arbitration the question of which State owned the Island of Palmas is at most an
(Palmas). Palmas is located within the boundary of the Philippines (territory ’inchoate’, or incomplete title. A state must actually
ceded to the United States from Spain as of the 1898 Treaty of Paris). Spain first exercise sovereignty over
discovered Palmas in the early seventeenth century and thus claimed title to it. that discovered territory. It must be accompanied
However, Palmas was also considered by the Netherlands to be a part of its by effective control.
territory since it began peacefully and continuously possessing the area in 1677
or before.
The US argued that it could claim sovereignty based on the fact that Spain had
ceded its title to the US. Spain could do so because Spain’s title to the island was
based on either the discovery of the island, the 1648 Treaty of Munster, or the
geographical unity with other islands (contiguity). The Netherlands argued that it
had possessed and exercised sovereignty even before 1648, and which was
reinforced by subsequent treaties. These treaties included treaties with native
states that established Dutch suzerainty over them.
The sole arbitrator was asked to determine whether the Island of Palmas (or
Miangas) in its entirety formed a part of the territory belonging to the US or of
the territory of the Netherlands. In his award, the sole arbitrator attached limited
significance to discovery as a basis of title and elaborated on the legal effect of
ISLAND OF PALMAS CASE the peaceful and continuous display of state authority over territory.
(NETHERLANDS v. US) Issue: WoN an inchoate title can prevail over a definite title founded on
continuous and peaceful display of sovereignty. – No. An inchoate title cannot
prevail. The Netherland’s title of sovereignty holds good over the inchoate title
of the US. The latter’s title cannot prevail over a definite title founded on
continuous and peaceful display of sovereignty. Further, Spain could not transfer
more rights than she herself possessed.
The arbitrator found that the establishment of Dutch authority had already
reached such a degree of development, that the importance of maintaining this
state of things ought to be considered as prevailing over a claim, possibly based
either on discovery in very distant times and unsupported by occupation or mere
geographical position. For these reasons, the arbitrator held that the Island of
Palmas (or Miangas) formed in its entirety a part of Netherlands territory.
An inchoate title cannot prevail over a definite title founded on continuous and
peaceful display of sovereignty. The continuous and peaceful display of
territorial sovereignty is as good as title. Discovery alone, without any
subsequent act, cannot suffice to prove sovereignty over the island.
There is no positive rule of international law that islands situated outside
territorial waters should belong to a state whose territory forms the nearest
continent or large island. No one contested the exercise of territorial rights by the
Netherlands from 1700 to 1906. The title of discovery, at best an inchoate title,
25
 does not prevail over the Netherlands, claim of sovereignty.
Lt. Victor Le Coat de Kerweguen of the French Navy, commissioner Thus, if a terrirtory by virtue of the fact that it was
of the French Government, while cruising about one-half mile off Cliipperton, completely
proclaimed and declared that the sovereignty of the said island beginning from that uninhabited and from the first moment when the
date belonged to his majesty, Emperor Napoleon III and to his heirs and successors. occupying state makes its
As the expedition left the island, no mark of sovereignty was then left. Thereafter appearance, at the absolute and undisputed
until the end of 1887, no positive and apparent act of sovereignty can be recalled disposition, from that moment the taking
either on the part of France or any other powers. The island remained without and possession must be considered accomplished
CLIPPERTON ISLAND CASE:
population, at least stable and no administration that was organized. Later on, The and occupation completed.
FRANCE v. MEXICO
French navy took a close surveillance of the island and it discovered that there are
three persons who resided on the island and Mexico was claiming that it is has the
superior right to exercise sovereignty over the said island. Both countries agreed to
submit the said case to arbitration. The Court ruled in favor of France by saying that
Mexico failed to substantiate its claim that it succeeded the rights of the Spanish
explorers in Clipperton island. Furthermore, France by occupying an uninhabited
land was able to make its possession and occupation complete.
The Minquiers and Ecrehos are two groups of islets situated The exercise of ordinary local administration in
between the British island of Jersey and the coast of France. Under a Special respect to a
Agreement between France and the United Kingdom, the Court was asked to territory for a long period of time as well as the
determine which of the Parties had produced the more convincing proof of title exercise of State functions are
to these groups of islets. important indications of which country has
In its Judgment, the Court considered that what was of decisive importance was sovereignty over the particular
direct evidence of possession and the actual exercise of sovereignty. After territory.
considering this evidence, the Court arrived at the conclusion that the
sovereignty over the Minquiers and Ecrehos belonged to the United Kingdom.
With regard to the Ecrehos in particular, the Court held the view that the King
of England exercised his justice and levied his rights in these islets. The Court
Minquiers and Ecrehos Case attached probative value to various acts relating to the exercise by Jersey (a
(France v. UK), region part of England ) of jurisdiction and local administration and to
legislation, such as criminal proceedings concerning the Ecrehos, the levying of
taxes on habitable houses or huts built in the islets since 1889, the registration in
Jersey of contracts dealing with real estate on the Ecrehos. With regard to the
Minquiers, the Court noted that in 1615, 1616, 1617 and 1692, the Manorial
court of the fief of Noirmont in Jersey exercised its jurisdiction in the case of
wrecks found at the Minquiers, because of the territorial character of that
jurisdiction. Other evidence concerning the end of the eighteenth century, the
nineteenth and the twentieth centuries pertained to, the erection on the islets of
habitable houses or huts by persons from Jersey who paid property taxes on that
account, the registration in Jersey of contracts of sale relating to real property in
the Minquiers.
A suit was instituted before the Permanent Court of International The basic requirements for the establishment of
Justice (PCIJ) by Royal Danish Government against the Royal Norwegian Gov’t sovereignty are (a)
over the legal status of certain territories in Eastern Greenland. The Norwegian There must be the intention and will to act as
Minister for Foreign Affairs to the Danish Minister at Oslo, the Norwegian sovereign, and some actual exercise
Government stated in its Royal Resolution (July 10th, 1931) that the occupation or display of such authority (although very little
in the Eastern Greenland is officially confirmed and is placed under actual exercise of authority was
LEGAL STATUS OF Norwegian sovereignty. The Danish Government informed the Norwegian necessary, especially in thinly populated or
EASTERN GREENLAND Government that it had submitted the question on the same day to the Permanent unsettled areas) and (b)There must be
CASE (DENMARK v. Court of International Justice. The Danish Gov’t contends that (1) Denmark had no competing or stronger claim to sovereignty.
NORWAY) ( enjoyed and had peacefully and continuously exercised an uncontested sovereignty Claim to sovereignty is not based
over Greenland for a long time (up till 1921, no Power disputed the Danish claim to upon some particular act or title such as a treaty of
sovereignty) (2) Norway had recognized Danish sovereignty over the whole cession but merely upon
Greenland (through conventions and treaties) and (3) that the Norway is bound by continued display of authority, involves these two
the Ihlen Declaration (Fact#16 but this basically talks about how the Norwegian elements.
Minister bound Norway by saying that the Danish sovereignty over the whole of
Greenland would meet with no difficulties on the part of Norway). Norway
26
 counters that Denmark possessed no sovereignty over the area which Norway
occupied because the word "Greenland" is not used in the geographical sense, but
means only the colonies or the colonized area on the West coast and that at the time
of the occupation the area was terra nullius (nobody’s island). Issue is WoN
Eastern Greenland belongs to Norway? The Court ruled that Eastern Greenland
rightfully belongs to Denmark. Denmark had enjoyed and had peacefully and
continuously exercised an uncontested sovereignty over Greenland for a long
time. The date at which such Danish sovereignty must have existed in order to
render the Norwegian occupation invalid is the date at which the occupation took
place, viz., July 10th, 1931. According to the Palmas Case the basic requirements
for the establishment of such a title are (a) There must be the intention and will to
act as sovereign, and some actual exercise or display of such authority (although
very little actual exercise of authority was necessary, especially in thinly populated
or unsettled areas) and (b)There must be no competing or stronger claim to
sovereignty. Court mentioned that claim to sovereignty based not upon some
particular act or title such as a treaty of cession but merely upon continued display
of authority, involves these two elements. One of the peculiar features of the
present case is that up to 1931 there was no claim by any Power other than
Denmark to the sovereignty over Greenland. After the founding of Hans Egede's
colonies in 1721, there is in part at least of Greenland a manifestation and exercise
of sovereign rights. Consequently, both the elements necessary to establish a valid
title to sovereignty - the intention and the exercise - were present. The importance
of these treaties is that they show a willingness on the part of the States with
which Denmark has contracted to admit her right to exclude Greenland. To
some of these treaties, Norway has herself been a Party, and these must be dealt
with later because they are relied on by Denmark as constituting binding
admissions by Norway that Greenland is subject to Danish sovereignty. Denmark
possesses sovereignty over Greenland as a whole and to the extent that these
treaties constitute evidence of recognition of her sovereignty over Greenland in
general Denmark is entitled to rely upon them. Norway is now estopped from
claiming Greenland because until 1931 there was no claim by ANY STATE other
than Denmark to Greenland, Norwegian government as undertakings which
recognized DANISH over all GREENLAND as evidenced by hey entered Bilateral
and multilateral agreements (Norway and Denmark have entered agreements
wherein Greenland was described as Denmark’s colony) and the existence of the
Ihlen Declaration (Norway debarred herself or under obligation to refrain from
contesting a historic Danish sovereignty)
The Secretary General of the United Nations sent a letter to the In law, "occupation" was a means of peaceably
President of the Court for an advisory opinion on Resolution 3292 on the status acquiring
of Western Sahara’s status as a territory at the time of its colonization by Spain sovereignty over territory otherwise than by
and its legal ties with Kingdom of Morocco and the Mauritanian entitity. The cession or succession; it was a
Court’s opinion states that Westerns Sahara (Rio de Oro and Sakiet El Hamra) at cardinal condition of a valid "occupation" that the
the time of Colonization by Spain was not a territory belonging to no one. The territory should be terra
information furnished to the Court shows that at the time of colonization nullius. The acquisition of sovereignty over
Western Sahara was inhabited by peoples which, if nomadic, were socially and territories inhabited by peoples
politically organized into tribes and under chiefs competent to represent them. which, if nomadic, were socially and politically
Western Sahara Case,
The State practice of the relevant period indicates that territories inhabited by organized in tribes and
Advisory Opinion,
tribes or peoples having a social and political organization were not regarded as under chiefs competent to represent them were
terra nullius. It shows that in the case of such territories the acquisition of effected through agreements
sovereignty was not generally considered as effected unilaterally through concluded with local rulers and not through
“occupation” of terra nullius by original title but through agreements concluded “occupation” of terra nullius by
with local rulers. On occasion, it is true, the word “occupation” was used in a original title.
non-technical sense denoting simply acquisition of sovereignty; but that did not
signify that the acquisition of sovereignty through such agreements with
authorities of the country was regarded as an “occupation” of a “terra nullius”
in the proper sense of these terms. On the contrary, such agreements with local
27
 rulers, whether or not considered as an actual “cession” of the territory, were
regarded as derivative roots of title, and not original titles obtained by
occupation of terra nullius.
The Mexican-American War had just ended, with both governments The International Boundary Commission confirmed
entering into the Treaty of Guadalupe and the Convention of 1884 to establish the two international
boundaries between the two states. The border was established along the Rio Grande laws regarding the Rio Grande and its shifting
river, between El Paso, Texas, and Ciudad Juarez, Chihuahua. Before the Convention course. First, if the river shifted
of 1884, there were instances of gradual erosion and deposit of alluvion that formed a gradually and slowly, then the international
new piece of land called the Chamizal tract, which was occupied by Mexico. Decades boundary shifted with the river. Second, if
The Chamizal Case
later, there was also a flood that changed a few changes in the land. There was a the river changed course quickly, like in a flood for
boundary dispute that was brought to the International Boundary Commission. The example, then the international
issue was WoN the Chamizal tract was supposed to belong to the US as a result of the boundary would not change.
changes in the course of the river. The commissioners ruled in favor of the Mexican
Government and stated that the creation of the Chamizal tract was a result of slow and
gradual erosion and slow alluvion.
Since 1911 British trawlers had been seized and condemned for Delimitation of seaareas has always an
violating measures taken by the Norwegian Government specifying the limits international aspect since
within which fishing was prohibited to foreigners. In 1935, a Decree was it interests States other than the coastal State;
adopted establishing the lines of delimitation of the Norwegian fisheries zone. consequently, it cannot be
On 28 September 1949, the Government of the United Kingdom filed with the dependent merely upon the will of the latter.
Registry of the ICJ an application instituting proceedings against Norway. The Certain basic considerations
subject of the proceedings was the validity, under international law, of the lines inherent in the nature of the territorial sea bring to
of delimitation of the Norwegian fisheries zone as set forth in a Decree of 12 light the following criteria
July 1935. The question at issue was whether this decree, which laid down a which can provide guidance to the Courts: since the
method for drawing the baselines from which the width of the Norwegian territorial sea is closely
territorial waters had to be calculated, was valid international law. This question dependent upon the land domain, the baseline must
was rendered particularly delicate by the intricacies of the Norwegian coastal not depart to any appreciable
zone, with its many bays, islands, islets and reefs. The United Kingdom extent from the general direction of the coast;
contended, inter alia, that some of the baselines fixed by the decree did not certain waters are particularly
accord with the general direction of the coast and were not drawn in a reasonable closely linked to the land formations which divide
UNITED KINGDOM v.
manner. In its Judgment of 18 December 1951, the Court found that, contrary to and surround them (an idea
NORWAY
the submissions of the United Kingdom, neither the method nor the actual that should be liberally applied in view of the
baselines stipulated by the 1935 Decree were contrary to international law. configuration of the coast. It may
Norway puts forward the 1935 decree as the application of a traditional system be necessary to have regard to certain economic
of delimitation in accordance with international law. In its view, international interests peculiar to a region
law takes into account the diversity of facts and concedes that delimitation must when their reality and importance are clearly
be adapted to the special conditions obtaining in different reguons. The evidenced by a long usage.
Judgment notes that a Norwegian Decree of 1812, as well as a number of
subsequent texts (Decrees, Reports, diplomatic correspondence) show that the
method of straight lines, imposed by geography, has been established in the
Norwegian system and consolidated by a constant and sufficiently long practice.
The application of this system encountered no opposition from other States.
Even the United Kingdom did not contest it for many years: it was only in 1933
that the United Kingdom made a formal and definite protest. And yet, concerned
with maritime questions, it could not have been ignorant of the reiterated
manifestations of Norwegian practice, which was so well- known.
Two British destroyers were severly damaged while crossing the Territorial sovereignty extends to a State’s waters.
North Corfu Channel, which was within Albanian territory. Lives were lost and Such sovereignty must be
the United Kingdom Government sought after compensation against Albania for respected by other States and may not commit
(The Corfu Channel Case)
damages. There are three issues: certain acts that represent
UNITED KINGDOM OF
1. WoN Albania is liable for the loss of lives and damage of the destroyers. disrespect or mocks the sovereignty of the State
GREAT
The Court ruled that Albania is liable because it did not matter who laid the inside their territory. Though
BRITAIN & NORTHEN
mines when the ships crossed. What was important was the obligation of the there are exceptions to these acts, such as the safe
IRELAND v. ALBANIA
Albanian Government to warn the ships that there were mines laid out. passage of warships during
Considering that two hours had lapsed between the time the coastal defense times of peace between States, so long as it is
spotted the ships entering until the explosion, there was enough time to warn the considered as innocent passage.
28
 British ships. The Court ruled that Albania had the obligation to warn them
because it would have been easy coastal defense to spot whoever would lay
mines on the waters. Such omission of warning led to the grave damage of the
ships and the loss of lives.
2. WoN the United Kingdom violated the sovereignty of Albania by crossing the
Corfu Channel on Oct. 22, 1946.
This is the envoy that crossed the Corfu Channel on Oct. 22, 1946 and the two
destroyers exploded. The envoy was meant to send a message to the Albanian
Government to invite them to have diplomatic relations. The Court ruled that the
United Kingdom did not violate the sovereignty of Albania. It was ruled that the
Corfu Channel was an international highway. It is accepted as international
custom that straits, including this Channel, are accessible to warships innocently
passing through during times of peace between the States.
3. WoN the United Kingdom violated the sovereignty of Albania by their acts in
Albanian waters on November 12 & 13, 1946.
After the explosion, the United Kingdom Government sent ships to Albanian
waters to create a main line of defense and to protect the mines laid in the
waters. They wanted to protect the mines because the author of the mine-laying
could have come and taken the mines away, thus removing evidence of what
happened. The Court ruled that their acts violated such sovereignty. The
justifications of the United Kingdom in sending their warships in Albanian
territory, and not just passing through the Corfu Channel, amounted to the
violation of Albania’s territory. This is evident by the constant refusal of the
British ships in Albanian waters by the Albanian Government. The sovereignty
of a State over its waters is one of the principles of international law, and must
be respected by other States. The Court ruled that sending warships to another’s
territory without its consent and constant refusal is a sign of disrespect towards
that sovereignty. It was also noted that intervention by a State, even to protect
the corpus delicti of the crime to be complained about, is reserved as an extreme
measure because history has shown that this tends to lead to grave abuse and
exploitation.
Great Britain and the US entered into a Treaty which stipulated A servitude in International law predicates an
that inhabitants of the US can fish and cure, perpetually, from the Southern coast express grant of a
of Newfoundland. Differences arose as to the scope and meaning of Article 1 of sovereign right and involves an analogy to the
said Treaty, hence they submitted the matter to the Permanent Court of relation of a praedium dominans
Arbitration at the Hague. and a praedium serviens; whereas by the Treaty of
The US alleges that Great Britain, being able to regulate their fishing through 1818 one State grants a liberty
NORTH ATLANTIC municipal laws amounted to international servitude. However, the Tribunal ruled to fish, which is not a sovereign right, but a purely
FISHERIES ARBITRATION that there was no international servitude. This is because a servitude in IL economic right, to the
(US v. predicates an express grant of sovereign right. The Treaty involves the grant of inhabitants of another State.
BRITAIN) liberty to fish, which is NOT a sovereign right but a purely economic right. The
doctrine of international servitude has found no support from modern publicists.
Also, even if the liberties of fishery constituted an International servitude, the
servitude would derogate from the sovereignty of the servient state only insofar as
the exercise of the rights of sovereignty by the servient State would be contrary to
the exercise of the servitude right by the dominant State. The fishery to which the
US inhabitants were granted was also a regulated fishery.
India prevented Portgual from exercising Portugal’s alleged right of During the British and post-British periods, the
passage over the enclaves in the Indian Peninsula. Portugal thus requested the ICJ to passage of private
declare that a right of passage was possessed by Portugal and must be respected by persons and civil officials had not been subject to
India. Portugal invokes this right only to the extent necessary for the exercise of its any restrictions beyond routine
Right of Passage case
sovereignty, subject to the regulation and control of India. India, on the other hand, control. Merchandise other than arms and
(Portugal v. India)
argues that the right of passage claimed by Portugal was too vague and ammunition had also passed freely subject
contradictory. only, at certain times, to customs regulations and
The is WoN Portugal possessed the right of passage over the territory of India to the such regulation and control as were
extent necessary for the exercise of Portuguese sovereignty over the enclaves, which
29
 right was subject to the regulation and control of India – YES, but only with regard necessitated by considerations of security or
to private persons, civil officials and goods in general. This does not extend to armed revenue. However, as regards armed
forces, armed police, and arms and ammunition. This right of passage was forces, armed police and arms and ammunition,
established as a custom. during the British and post-British
periods, Portuguese armed forces and armed police
had not passed between Daman
and the enclaves as of right.
There was a war going on between Poland and Russia. S.S. Wimbledon, a A neutrality order issued by an individual state
steamship, was used to deliver munitions and supplies to Poland. When it was cannot hold more power than the
about to pass the Kiel Canal in Germany, it was refused passage because provisions of an international treaty of peace.
Germany issued neutrality orders wherein it wished not to support either Russia
or Poland. The French Ambassador at Berlin requested the German government
to withdraw the prohibition and to allow S.S. Wimbledon to pass through the
Kiel Canal, in conformity with Article 380 of the Treaty of Versailles. However,
the German government still refused. They argued that Article 380 of the Treaty
of Versailles did not have the effect of limiting their sovereignty over their land.
Because of Germany’s refusal to let S.S. Wimbledon to pass through the Kiel
Canal, there was a delay in the delivery of the shipment (the boat was detained
for eleven days and it took two extra days to find another route). The plaintiffs
(“British et. al governments”) thus filed this case with the Permanent Court of
International Justice (“PCIJ”). They claim that Germany violated the Treaty of
Versailles. They also claimed damages for the lost time and money in the
transport of the goods. ISSUE: WoN a state is obligated to allow free passage
based on a treaty even if it would violate its right to neutrality in times of war—
The Case of S.S. Wimbledon
YES, GERMANY SHOULD HAVE ALLOWED PASSAGE BASED ON
THEIR TREATY. IT IS CLEAR FROM ART. 380 THAT THE
PROHIBITION ON PASSAGE APPLIES ONLY TO STATE VESSELS WHO
ARE AT WAR WITH GERMANY. BRITISH ET. AL GOVERNMENT, NOT
BEING AT WAR WITH GERMANY, SHOULD HAVE BEEN ALLOWED
PASSAGE. RULING: It is clear from Art. 380 of the Treaty that Germany is
obligated to allow free passage to all vessels, without distinction as to the nature
of their cargo or their destination. The only vessels which cannot pass through
are those belonging to nations at war with Germany. In this case, British et. al
governments were not at war with Germany. If free access to the Kiel Canal
could be modified in the event of German neutrality, then the Treaty should
have said so. Its omission should thus be construed as an intentional exclusion.
Also, the German neutrality orders could not preempt the provisions of the
Treaty of Versailles because Article 380 explicitly authorized passage of the
Wimbledon. Allowing the ship to pass cannot be imputed to Germany as a
failure to fulfill its duties as a neutral, for Germany's neutrality would have
remained intact and irreproachable.
In March 2009, Republic Act 9522, an act defining the Far from surrendering the Philippines’ claim over
archipelagic baselines of the Philippines was enacted – the law is also known as the KIG and the
the Baselines Law. This law was meant to comply with the terms of the third Scarborough Shoal, Congress’ decision to classify
United Nations Convention on the Law of the Sea (UNCLOS III), ratified by the the KIG and the Scarborough
Philippines in February 1984.Professor Merlin Magallona et al questioned the Shoal as "‘Regime[s] of Islands’ under the Republic
validity of RA 9522 as they contend, among others, that the law decreased the of the Philippines consistent
national territory of the Philippines hence the law is unconstitutional. Some of with Article 121" of UNCLOS III manifests the
Magallona v Executive
their particular arguments are as follows: (a) the law abandoned the demarcation Philippine State’s responsible
Secretary
set by the Treaty of Paris and other ancillary treaties-this also resulted to the observance of its pacta sunt servanda obligation
exclusion of our claim over Sabah; (b) the law, as well as UNCLOS itself, under UNCLOS III. Under
describes the Philippine waters as “archipelagic” waters which, in international Article 121 of UNCLOS III, any "naturally formed
law, opens our waters landward of the baselines to maritime passage by all area of land, surrounded by
vessels (innocent passage) and aircrafts (overflight), undermining Philippine water, which is above water at high tide," such as
sovereignty and national security, contravening the country’s nuclear-free portions of the KIG, qualifies
policy, and damaging marine resources, in violation of relevant constitutional
30
 provisions; (c) the classification of the Kalayaan Island Group (KIG), as well as under the category of "regime of islands," whose
the Scarborough Shoal (bajo de masinloc), as a “regime of islands” pursuant to islands generate their own
UNCLOS results in the loss of a large maritime area but also prejudices the applicable maritime zones.
livelihood of subsistence fishermen. The issue is WoN RA 9522 is
unconstitutional?- NO because it allows an internationally-recognized
delimitation of the breadth of the Philippines’ maritime zones and continental
shelf.
The Court held that RA 9522, or UNCLOS, itself is not a means to acquire, or
lose, territory. The treaty and the baseline law has nothing to do with the
acquisition, enlargement, or diminution of the Philippine territory. What controls
when it comes to acquisition or loss of territory is the international law principle
on occupation, accretion, cession and prescription and NOT the execution
of multilateral treaties on the regulations of sea-use rights or enacting statutes to
comply with the treaty’s terms to delimit maritime zones and continental
shelves.The law did not decrease the demarcation of our territory. In fact it
increased it. Under the old law amended by RA 9522 (RA 3046), we adhered
with the rectangular lines enclosing the Philippines. The area that it covered was
440,994 square nautical miles (sq. na. mi.). But under 9522, and with the
inclusion of the exclusive economic zone, the extent of our maritime was
increased to 586,210 sq. na. mi. The law did not abandon the Sabah claim. This
is evident on the provision of Section 2 of RA 9522. UNCLOS may term our
waters as “archipelagic waters” and that we may term it as our “internal waters”,
but the bottom line is that our country exercises sovereignty over these waters
and UNCLOS itself recognizes that. However, due to our observance of
international law, we allow the exercise of others of their right of innocent
passage. No modern State can validly invoke its sovereignty to absolutely forbid
innocent passage that is exercised in accordance with customary international
law without risking retaliatory measures from the international community.
The classification of the KIG (or the Spratly’s), as well as the Scarborough
Shoal, as a regime of islands did not diminish our maritime area. Under
UNCLOS and under the baselines law, since they are regimes of islands, they
generate their own maritime zones – in short, they are not to be enclosed within
the baselines of the main archipelago (which is the Philippine Island group). This
is because if we do that, then we will be enclosing a larger area which would
already depart from the provisions of UNCLOS – that the demarcation should
follow the natural contour of the archipelago. Nevertheless, we still continue to
lay claim over the KIG and the Scarborough Shoal through effective occupation.
Germany, Denmark, and the Netherlands failed to reach an Equidistance rule is not customary international
agreement on how to delimit their continental shelves in the North Sea. Denmark law, and the
and the Netherlands both contended that the delimitation of their continental continental shelf must be delimited according to
shelves should be determined in accordance with the principle of equidistance. agreement of the three States.
The delimitation of the boundaries near the coast had been made on the basis of The Continental shelf is an extension of the
this principle. However, Germany considered that such an arrangement would territory of a coastal state seaward
result in an inequitable delimitation for them. Thus, the three states agreed to because it is an extension of soil and subsoil.
submit the matter to the ICJ to determine whether or not the equidistance rule
North Sea Continental Shelf should be applied in delimiting their continental shelves. The ICJ ruled that
Cases (Germany v. equidistance rule should not be applied, because (1) it is not customary IL and
Denmark/Holland) (2) to apply the rule would result to an inequity since Germany has a shorter
coastline compared to Denmark and the Netherlands. Delimitation is to be
effected by agreement in accordance with equitable principles , and taking
account of all relevant circumstances, in such a way as to leave as much as
possible to each Party all those parts of the continental shelf that constitute
a natural prolongation of its land territory into and under the sea, without
encroachment on the natural prolongation of the land territory of the other;
If, in the application of this method, the delimitation left to the Parties areas that
overlap, these are to be divided between them in agreed proportions or, failing
31
 agreement, equally, unless they decide on a regime of joint jurisdiction, user, or
exploitation for the zones of overlap or any or part of them.
The Court also discussed why delimiting the continental shelf is important, and
stated that the continental shelf is an area physically extending the territory of
most coastal States into a species of platform. Since the land is the legal source
of the power which a State may exercise over territorial extensions to seaward, it
must first be clearly established what features do in fact constitute such
extensions.
The dispute originated from the 1960’s where petroleum Delimitation of Continental Shelves and Fisheries
exploration had begun. The dispute involves the delimitation of the Gulf of Zone must be
Maine specially that of the Georges Bank, because of its resources and natural based on the agreement of the parties involve. In
importance. Both USA and Canada have been in a long negotiation to find an case the agreement fails, the
amicable agreement between them however, such failed, and now the dispute is delimitation must be based on the equitable rules
submitted before the ICJ. Both of them agree that the delimitation must be made and principles of international
in accordance with the equitable rules and principles of international law. law.
However, they have different views on how it would apply. Canada believes that
the geographic adjacency constituted the basis of the title of the coastal State to
the continental shelves. USA on the other hand provided that the coasts must be
differentiated between a primary coast and secondary coast. Primary coasts are
CASE CONCERNING those which follow the mainland coast while the seconday coasts diviates from
DELIMITATION OF THE it. The issue before the court is What rules and principles of international law
MARITIME applies in the delimitation. The ICJ opposed the views of both Canada and USA.
BOUNDARY IN THE GULF With regard to the contention of Canada, ICJ stated that it is not necessarily the
OF MAIN AREA adjancency of the continental shelves to the coastal State which gives the State
CANADA V. UNITED STATES jurisdiction over it. It is international law which gives the State a legal title over
OF AMERICA an adjacent continental shelf. With regard to the USA, the ICJ stated that such
distinction cannot be appretiated as it only provides for assertions without giving
any convincing evidence to show the international rule which was applied.
Therefore, following customary international law which states that
delimitation of Continental Shelves must be based on the agreement of the
parties involve and in case the agreement fails, the delimitation must be
based on the equitable rules and principles of international law , the ICJ did
not follow the proposal of the two parties and made its own independent
method of delimitation. The ICJ applied a more neutral approach and turned the
case to a criterion especially derived from geography with the aim of an equal
division of the areas where the maritime projections of the coasts of the
States between which delimilitation is to be effected converge and overlap
Libya and Malta wanted to settle the dispute between them The delimitation is to be effected in accordance
concerning the delimitation of their continental shelves. Libya posited the view with equitable
that the delimitation should start from the rift zone, while Malta claimed that the principles.
starting point of the delimitation process should be the equidistance line. The
Court rejected both views. As to Libya’s claim, the Court said that the law only
enables a State to claim a continental shelf of 200 miles or more from its coast
and in this case, the distance between the coasts of both parties is less than 400
miles, which means that no geophysical feature can lie more than 200 miles
LIBYA/MALTA
from each of their coasts. For Malta’s argument that the equidistance line should
CONTINENTAL SHELF CASE
be the starting point, the Court held that the equidistance principle is not the
only method that can be used. The Court also cannot consider Malta’s view that
a delimitation should be influenced by the relative economic position of the two
States in question. In order to apply the equitable principles which were elicited
by the taking account of the relevant circumstances, the Court proceeds by
stages; it begins by making a provisional delimitation, which it then compares
with the requirements derived from other criteria. (Please see page 3 for the
summary of the Court’s conclusions.)
Fisheries Jurisdiction Case Iceland sought to extend its exclusive fisheries jurisdiction from 12 to The validity of delimitations depends upon
[UK v. Iceland] 50 miles around its shores. The United Kingdom challenged this extension of International Law. The
32
 jurisdiction, wherein UK relied upon an earlier treaty agreement between the parties freedom of the high seas is made subject to the
where the UK agreed to recognize Iceland’s twelve-mile exclusive fisheries consideration that its utilization shall
jurisdiction in exchange for Iceland’s agreement to submit all disputes over fisheries be with reasonable regard to the interest of other
jurisdiction to the ICJ. Iceland argued that it was not bound by this agreement to states. Both concepts of “fishery
submit all disputes to the ICJ because of changing legal circumstances in zone” and “preferential right” are crystallized into
international law. Iceland argued that the standard, default limit for exclusive customary law. However,
fisheries jurisdiction for states was typically now twelve miles. This was not the case preferential rights are implemented by agreement
when Iceland first signed its agreement with the UK, however, and the agreement to between states concerned, and it is
a twelve-mile limit then constituted a compromise for Iceland. Due to changing wholly inconsistent with the idea of excluding
trends in international law, Iceland argued that its previous agreement to the twelvemile fishing activities of all other states
compromise in exchange for ICJ jurisdiction was now void for lack of
consideration on the UK’s part.
The issues in this case are: WoN Iceland can extend its fishery zone from 12 to 50
miles – NO; WoN the agreement between Iceland and the UK play within the court’s
decision – YES; WoN the law of the high seas can be enforced in this case – YES
For the first issue, Iceland’s extension of its fishery zone is not permissible. A
fishery zone has been accepted to be 12 miles from its baseline and is treated as a
general practice accepted by the states. Although Iceland has preferential rights over
the fishery zone, it must reconcile it with the interests of the UK. For the second
issue, agreement between Iceland and UK, being signed is binding on both nations,
and also proves that Iceland accepted the 12-mile fishery jurisdiction and was
content with it. For the third issue, according to the UNCLOS, the freedom of the
high seas is to be exercised by all states. Although it was not established in a treaty,
states accepted this general rule of a 12 nautical mile fishery zone and given that
Iceland did not protest this rule, it thus gave its silent consent, making it law.
M/T Tabangao is a cargo vessel owned by PNOC Shipping and Piracy is a reprehensible crime against the whole
Transport Corporation and it was loaded with barrels of kerosene, gasoline, and world. It falls
diesel oil. As it was sailing off the coast of Mindoro near Silonay Island, the under Title One of Book Two of the Revised Penal
vessel was suddenly boarded by 7 fully armed pirates led by Emilio Changco. Code. As such, it is an
The name M/T Tabangao was painted over with black paint with the name exception to the rule on territoriality in criminal
Galilee. The crew was forced to sail to Singapore, while sending misleading law.
radio messages to PNOC that the ship was undergoing repairs. It anchored about
10-18 nautical miles from Singapore’s shoreline where another vessel called
“Navi Pride” anchored beside it. Emilio Changco ordered the crew to transfer the
cargo to Navi Pride while Cheong San Hiong supervised the crew of Navi Pride
in receiving the cargo. Once the transaction was complete, the vessel went back
to the Philippines. It arrived at Batangas and the members of the crew were
released in 3 batches, with the stern warning not to report the incident to
government authorities for a period of 2 days, otherwise they would be killed.
The Chief Engineer, accompanied by the members of the crew, called the office
PEOPLE v. TULIN of PNOC to report the incident. A series of arrests were made and soon after, an
information was filed charging against them qualified piracy or violation of PD
532. They pleaded not guity to the charge. Tulin, Infante, Loyola, and Changco
gave a defense of denial. Hiong on the other hand claimed that he did not know
that M/T Tabangao was raided by pirates. He maintained that his company was
then dealing with a certain Paul Gan who offered to sell to them bunker oil, and
was just asked to supervise the ship-to-ship transfer. The trial court convicted
Tulin, Loyola, Infante and Changco as principals, and Hiong as accomplice, to
the said crime. The matter was then elevated to the Supreme Court. Hiong argues
that PD 532 refers to Philippine Waters and that he was convicted for acts done
outside Philippine waters or territory. The issue is WoN Hiong can be convicted
of the crime of piracy even if the acts allegedly committed were done outside
Philippine waters and territory? – YES. The attack on and seizure of "M/T
Tabangao" and its cargo were committed in Philippine waters. PD 532
requires that the attack and seizure of the vessel and its cargo be committed
in Philippine waters. The disposition by the pirates of the vessel and its cargo is
33
 still deemed part of the act of piracy, hence, the same need not be committed in
Philippine waters.
A collision occurred on the high seas between a French mail steamer First, a State cannot exercise its jurisdiction outside
(Lotus) and a Turkish collier (Boz-Kourt). Basically they’re both steamships. Boz-Kourt its territory unless an international
sank, and 8 Turkish nationals on board were killed. The 10 survivors of the Boz-Kourt, treaty or customary law permits it to do so.
including its captain, were taken to Constantinople (Turkey) on board the Lotus. In Second, within its territory, a State may exercise its
Turkey, M. Demons, the officer on watch of the Lotus who is a French national, and the jurisdiction, in any matter, even if
captain of the Boz-Kourt, Hassan Bey, were charged with manslaughter by a Turkish there is no specific rule of international law
court. M. Demons was sentenced to 80 days of imprisonment and a fine of 22 Turkish permitting it to do so. In these instances,
pounds. France protested this, demanding the release of M. Demons or the transfer of his States have a wide measure of discretion, which is
case to the French Courts. only limited by the prohibitive
Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent Court rules of international law. This applies to civil and
of International Justice (PCIJ). According to France, the convention of Lausanne does not criminal cases.
allow Turkish courts to take cognisance of criminal proceedings directed against a French (Basically this means that under international law,
citizen for crimes committed outside Turkey. Moreover that International law states that a if its a collision in the high seas
State is not entitled to extend the jurisdiction of their courts to crimes that happened between 2 vessels of different nationalities, both
abroad even if the victim is a citizen of their State UNLESS stipulated in a special have concurrent jurisdiction since the
agreement. Meanwhile Turkey contends that it has jurisdiction over the case. vessel is basically an extension of their territory --
The PCIJ ruled that first, a State cannot exercise its jurisdiction outside its territory unless under the second doctrine-- UNLESS
an international treaty or customary law permits it to do so. Second, within its territory, a there is an international law which prohibits such)
State may exercise its jurisdiction, in 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. This
THE LOTUS CASE: FRANCE applies to civil and criminal cases. In this case, the incident happened between 2 vessels.
V. TURKEY While the principle of the freedom of the seas says that in the absence of any territorial
sovereignty upon the high seas, no State may exercise any kind of jurisdiction over foreign
vessels upon them, a corollary of this principle states that a ship on the high seas is
assimilated to the territory of the State the flag of which it flies, for, just as in its own
territory, that State exercises its authority upon it, and no other State may do so. Since,
there no rule of international law in regard to collision cases to the effect that criminal
proceedings are exclusively within the jurisdiction of the State whose flag is flown, both
France and Turkey have concurrent jurisdiction over the case. 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. Neither the exclusive jurisdiction of
either State, nor the limitations of the jurisdiction of each to the occurrences which took
place on the respective ships would appear calculated to satisfy the requirements of justice
and effectively to protect the interests of the two States. It is only natural that each should
be able to exercise jurisdiction and to do so in respect of the incident as a whole.
There is no principle of international law, within the meaning of Article 15 of the
Convention of Lausanne which precludes the institution of the criminal proceedings under
consideration. Consequently, Turkey, by instituting, in virtue of the discretion which
international law leaves to every sovereign State, the criminal proceedings in question, has
not, in the absence of such principles, acted in a manner contrary to the principles of
international law within the meaning of the special agreement.
Eichmann (one of Hitler’s high ranking generals) was tried before an The universal principle of jurisdiction recognizes
Israel Court for war crimes he allegedly committed during the Second World War – that a sovereign can
more particularly genocide against he Jewish Race. The issue is WoN the Israel adopt criminal laws that apply to the person who
ATTORNEY GENERAL OF Court have jurisdiction even if the acts were committed elsewhere? YES. When has committed any crime of
THE GOVERNMENT OF a person commits a crime against the law of nations such as piracy (or in this case universal nature (jus cogens, war crime, mass
ISRAEL v. genocide), he becomes an enemy to all mankind – a hostis humani generis. He places killing, etc) anywhere in the world
EICHMANN himself beyond the protection of any state. It is in fact the moral duty of every state when the conduct is recognized by nations as being
to enforce the natural right to punish such criminals guilty of the most extreme of universal concern.
violations of the laws of nature so detrimental to the welfare of the international
community.
34
 Thus, while as a general rule, criminal jurisdiction is territorial, the jurisdiction of a
state may extend to punishment of offenses against the laws of nations. Genocide has
already been recognized as such under various conventions – such as the Charter of
the Nuremberg Trial, the Convention on the Prevention of the Crime of Genocide
(under the UN), and various affirmations of the UN General Assembly. The
punishment of genocide is a matter if international concern condemned by all of the
civilized world. The same would apply to slavery, crimes against peace, and torture.
Belgium issued a warrant of arrest against Mr. Abdulaye Yerodia The functions exercised by a Minister for Foreign
Ndomasi , then Congo’s Minister for Foreign Affairs for violations of Affairs were
international humanitarian law. Congo filed an application before the ICJ to such that, throughout the duration of his or her
have the warrant discharged. office, a Minister for Foreign
The ICJ ruled that the issuance of the warrant was a violation of customary Affairs when abroad enjoyed full immunity from
international law. Incumbent foreign ministers enjoy inviolability and immunity criminal jurisdiction and
ARREST WARRANT CASE
from criminal prosecution in the performance of their official function.It must inviolability.
CONGO v. BELGIUM
be noted that the immunities accorded to Ministers for Foreign Affairs are not
granted for their personal benefit, but to ensure the effective performance of
their functions on behalf of their respective States.
(As to the allegation that the minister violated human rights, the alleged crimes
are not exonerated. What Belgium only violated is that it issued the warrant
WHILE the minister is INCUMBENT. He may still be made liable)
Blackmer was a citizen of the US residing in France. He was found guilty The nationality principle provides that every state
of contempt by the SC of the District of Columbia for failure to respond to subpoenas has jurisdiction over its
served upon him in France because he was being asked to appear as a witness on behalf of nationals even when those nationals are outside the
the US at a criminal trial. The statute on the basis of such provided that whenever the state.
attendance of a witness abroad is desired, the judge may order a subpoena to be issued
and served to that witness personally and failure of the witness to show up, they may be
punished for contempt. Hence, this petition. The issue in this case is whether or not the
US has jurisdiction over Blackmer despite Blackmer being outside the State. The Court
BLACKMER v. US here held in the affirmative. This is because Blackmer continued to be a citizen of the US.
He continued to owe allegiance to the the US and by virtue of the obligations of
citizenship, the US retained its authority over him. He was bound by its laws made
applicable to him in the foreign country. And although he was a resident abroad, he
remained to be in the taxing power of the US. US possesses the power inherent in
sovereignty to require the return to this country of a citizen, resident elsewhere, whenever
the public interest requires it, and to penalize him in case of refusal. This is based on the
nationality principle which provides that every state has jurisdiction over its nationals
even when those nationals are outside the state.
M/T Tabangao is a cargo vessel owned by PNOC Shipping and Although Presidential Decree No. 532 requires that
Transport Corporation and it was loaded with barrels of kerosene, gasoline, and the attack and
diesel oil. As it was sailing off the coast of Mindoro near Silonay Island, the seizure of the vessel and its cargo be committed in
vessel was suddenly boarded by 7 fully armed pirates led by Emilio Changco. Philippine waters, the
The name M/T Tabangao was painted over with black paint with the name disposition by the pirates of the vessel and its cargo
Galilee. The crew was forced to sail to Singapore, while sending misleading is still deemed part of
radio messages to PNOC that the ship was undergoing repairs. It anchored about the act of piracy, hence, the same need not be
10-18 nautical miles from Singapore’s shoreline where another vessel called committed in Philippine
“Navi Pride” anchored beside it. Emilio Changco ordered the crew to transfer the waters.
People v. Tulin cargo to Navi Pride while Cheong San Hiong supervised the crew of Navi Pride Republic Act No. 7659 neither superseded nor
in receiving the cargo. Once the transaction was complete, the vessel went back amended the provisions on piracy
to the Philippines. It arrived at Batangas and the members of the crew were under Presidential Decree No. 532. There is no
released in 3 batches, with the stern warning not to report the incident to contradiction between the two
government authorities for a period of 2 days, otherwise they would be killed. laws. There is likewise no ambiguity and hence,
The Chief Engineer, accompanied by the members of the crew, called the office there is no need to construe or
of PNOC to report the incident. A series of arrests were made and soon after, an interpret the law. All the presidential decree did
information was filed charging against them qualified piracy or violation of PD was to widen the coverage of the
532. They pleaded not guity to the charge. Tulin, Infante, Loyola, and Changco law, in keeping with the intent to protect the
gave a defense of denial. Hiong on the other hand claimed that he did not know citizenry as well as neighboring
35
 that M/T Tabangao was raided by pirates. He maintained that his company was states from crimes against the law of nations. As
then dealing with a certain Paul Gan who offered to sell to them bunker oil, and expressed in one of the
was just asked to supervise the ship-to-ship transfer. The trial court convicted "whereas" clauses of Presidential Decree No. 532,
Tulin, Loyola, Infante and Changco as principals, and Hiong as accomplice, to piracy is "among the highest
the said crime. The matter was then elevated to the Supreme Court. Hiong argues forms of lawlessness condemned by the penal
that PD 532 refers to Philippine Waters and that he was convicted for acts done statutes of all countries." For
outside Philippine waters or territory. The issue is WoN the Philippines has this reason, piracy under the Article 122, as
jurisdiction to try a crime committed outside the Philippine waters and territory. amended, and piracy under
SC held in the affirmative, As regards the contention that the trial court did not Presidential Decree No. 532 exist harmoniously as
acquire jurisdiction over the person of accused-appellant Hiong since the crime separate laws.
was committed outside Philippine waters, suffice it to state that unquestionably,
the attack on and seizure of "M/T Tabangao" and its cargo were committed in
Philippine waters, although the captive vessel was later brought by the pirates to
Singapore where its cargo was off-loaded, transferred, and sold. And such
transfer was done under accused-appellant Hiong's direct supervision. Although
Presidential Decree No. 532 requires that the attack and seizure of the vessel and
its cargo be committed in Philippine waters, the disposition by the pirates of the
vessel and its cargo is still deemed part of the act of piracy, hence the same need
not be committed in Philippine water.
Kuroda was a former Lt. Gen. and Commanding Gen. of the War crimes committed against our people and our
Japanese Imperial Army from 1943-1944. He is now charged before the Military government
Commission for having unlawfully disregarded and failed to control the while we are a Commonwealth, are triable and
operations of his command and allowing them to commit brutal atrocities and punishable by our present
other high crimes against noncombatant civilians and prisoners. EO No. 68 Republic. Military Commission is a special military
established a National War Crimes Office and prescribed rules and regulations tribunal governed by a
governing the trial of accused war criminals. His arguments are: (1) EO 68 is special law and not by the Rules of Court which
illegal, (2) enjoin and prohibit Hussey and Port from participating in the govern ordinary civil courts.
KURODA v. JALANDONI
prosecution, (3) permanently prohibiting respondents from proceeding. The issue The Military Commission having been convened by
is WoN EO 68 is constititutional. SC said yes, because the Military Commission virtue of a valid law, with
was convened by virtue of a valid law, with jurisdiction over the crimes charged jurisdiction over the crimes charged which fall
which fall under the provisions of EO No. 68, and having jurisdiction over under the provisions of Executive
Karudo by having him in its custody. President exercised his power as Order No. 68, SC will not interfere with the due
Commander in Chief in the issuance of the EO. Also, the Military Commission processes of such Military
was established by a special law, which does not require that the counsel must be Commission.
those duly qualified to practice law in the Phil.
Doherty is a member of the provisional Irish Republican Army The political offense exception is not limited to
(PIRA) and, with his group, took over a house in 371 Antrim Road, Belfast, actual armed
Ireland to engage and attack a convoy of British soldiers. A shootout ensued insurrections or more traditional and overt military
between Doherty’s group and members of the Special Air Service (SAS) of the hostilities. (See Ratio 6
British army and resulted to the death of Captain Herbert Westmactott and subcategories for reasoning).
Doherty’s arrest. He was held in Crumlin Road prison pending trial. After trial Factors which the Court must assess in determining
completed, Doherty and 7 others escaped the prison. He was conviceted in political offense doctrine:
In the Matter of the absentia for murder, attempted murder, and illegal possession of firearms and a. the nature of the act
Requested Extradition of ammunition, and other offenses allegedly commited in the course of his escape b. the context in which it is committed
Joseph Patrick from prison. (he was caught by US authorities after his escape from prison) c. the status of the party committing the act
Thomas Doherty by the Govt Pursuant to Art. IX of the Treaty of Extradition between the UK and d. the nature of the organization on whose behalf it
of the United Kingdom of Northern Ireland , the US acts on behalf of UK and Northern Ireland to is committed
Great Britain extradite Doherty ot the UK because of his prior conviction in absentia. Doherty e. the particularized circumstances of the place
and Northern Ireland argues that Art V(1)(c)(i) of the Treaty justifies denial of his extradition to UK where the act takes place.
since what he committed was a political offense.
Issue: WoN Doherty may be extradited – NO
This case involves the application of the political offense doctrine in relation to
the Treaty of Extradition between US UK and Northern Ireland.
This case presents the assertion of the political offense exception in its most
classic form. The death of Captain Westmacott, while a most tragic event,
occurred in the context of an attempted ambush of a British army patrol. The
36
 British Army’s response gave rise to Captain Westmacott’s death. Had this
conduct occurred during the course of more traditional military hostilities there
could be little doubt that it would fall within the political offense exception.
The Court is not persuaded by the argument that Doherty’s offense must or
should be regarded as political merely because the UK has recognized the
necessity to enact special legislation and to create special courts to deal with
problems created by the escalating violence between Republicans and Unionitsts
in Northern Ireland.
Nevertheless , the fairness of the administration of justice in those courts does
not and cannot deprive Doherty’s offenses of their essentially political
character . (see Ratio 14 for full explanation) Having political character, the
request for Doherty to be extradited to UK must be denied.
Agents of the DEA abducted Alvarez-Machain from his The presence of an extradition treaty between the
office in Mexico because he was wanted in the U.S. for alleged complicity United
in the torture-murder of a DEA agent. But by contending that his abduction States and another country does not necessarily
violated a U.S.-Mexico extradition treaty, Alvarez sought to dismiss the preclude obtaining a citizen
indictment. His prayer was granted by the district court and the indictment of that nation through abduction.
was dismissed. The court of appeals affirmed while the U.S. Supreme Court
granted review. Issue: Does the presence of an extradition treaty between
the United States and another country does not necessarily preclude
obtaining a citizen of that nation through abduction? The presence of an
extradition treaty between the United States and another country does not
necessarily preclude obtaining a citizen of that nation through abduction. It
has been established that abduction, in and of itself, does not invalidate
prosecution against a foreign national. The only question to be answered is
whether the abduction violates any extradition treaty that may be in effect
between the U.S. and the nation in which the abductee was to be found. The
international law applies only to situations where no extradition treaty
exists, so it is irrelevant here. Since the extradition treaty does not prohibit
an abduction as it occurred in this case, then it is not illegal. The fact of
respondent's forcible abduction does not prohibit his trial in a United States
court for violations of this country's criminal laws. (a) A defendant may not
be prosecuted in violation of the terms of an extradition treaty. However,
when a treaty has not been invoked, a court may properly exercise
U.S. v. Alvarez-Machain
jurisdiction even though the defendant's presence is procured by means of a
forcible abduction. Thus, if the Extradition Treaty does not prohibit
respondent's abduction, the rule of Ker case applies and jurisdiction was
proper. (b) Neither the Treaty's language nor the history of negotiations and
practice under it supports the proposition that it prohibits abductions outside
of its terms. The Treaty says nothing about either country refraining from
forcibly abducting people from the other's territory or the consequences if an
abduction occurs. In addition, although the Mexican government was made
aware of the Ker doctrine as early as 1906, and language to curtail Ker was
drafted as early as 1935, the Treaty's current version contains no such
clause. (c) General principles of international law provide no basis for
interpreting the Treaty to include an implied term prohibiting international
abductions. It would go beyond established precedent and practice to draw
such an inference from the Treaty based on respondent's argument that
abductions are so clearly prohibited in international law that there was no
reason to include the prohibition in the Treaty itself. It was the practice of
nations with regard to extradition treaties that formed the basis for this
Court's decision in Rauscher, supra, to imply a term in the extradition treaty
between the United States and England. Respondent's argument, however,
would require a much larger inferential leap with only the most general of
international law principles to support it. While respondent may be correct
that his abduction was "shocking" and in violation of general international
37
 law principles, the decision whether he should be returned to Mexico, as a
matter outside the Treaty, is a matter for the Executive Branch.
On 13 January 1977, An extradition proceeding is sui generis. It is not a
then President Ferdinand E. Marcos issued Presidential Decree 1069 criminal
"Prescribing the Procedure for the Extradition of Persons Who Have Committed proceeding which will call into operation all the
Crimes in a Foreign Country". On 13 November 1994, then Secretary of Justice rights of an accused as
Franklin M. Drilon, representing the Government of the Republic of the guaranteed by the Bill of Rights. To begin with, the
Philippines, signed in Manila the "Extradition Treaty Between the Government process of extradition does
of the Republic of the Philippines and the Government of the United States of not involve the determination of the guilt or
America. "The Senate, by way of Resolution 11, expressed its concurrence in the innocence of an accused. His guilt
ratification of said treaty. On 18 June 1999, the Department of Justice received or innocence will be adjudged in the court of the
from the Department of Foreign Affairs U. S. Note Verbale 0522 containing a state where he will be
request for the extradition of Mark Jimenez to the United States. Jimenez was extradited. Hence, as a rule, constitutional rights
charged in the United States for several violations. Pending evaluation of the that are only relevant to
aforestated extradition documents, Jimenez requested copies of the official determine the guilt or innocence of an accused
extradition request from the US Government, as well as all documents and cannot be invoked by an
papers submitted therewith, and that he be given ample time to comment on the extraditee especially by one whose extradition
request after he shall have received copies of the requested papers. The Secretary papers are still undergoing
denied the request. Jimenez filed with the RTC a petition against the Secretary of evaluation.
Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau
of Investigation, for mandamus, certiorari, prohibition, and to enjoin the
Secretary of Foreign Affairs and the Director of the NBI from performing any
act directed to the extradition of Jimenez to the United States, with an
SECRETARY OF JUSTICE vs.
application for the issuance of a temporary restraining order and a writ of
LANTION RESOLUTION
preliminary injunction. The trial court ruled in favor of Jimenez. The Secretary
filed a petition for certiorari before the Supreme Court. On January 18, 2000, by
a vote of 9-6, the SC dismissed the petition and ordered the Justice Secretary to
furnish Jimenez copies of the, extradition request and its supporting papers and
to grant him a reasonable period within which to file his comment with
supporting evidence. Hence, this petition by the Secretary of Justice. The issue is
WoN Jimenez had the right to notice and hearing during the evaluation stage of
an extradition process? The SC held that he did not. There is no provision in the
Treaty and in PD 1069 which gives an extraditee the right to demand from the
Justice Secretary copies of the extradition request from the US government and
its supporting documents and to comment thereon while the request is still
undergoing evaluation. The DFA and the DOJ, as well as the US government,
maintained that the Treaty and PD 1069 do not grant the extraditee a right to
notice and hearing during the evaluation stage of an extradition process. It is
neither an international practice to afford a potential extraditee with a copy of the
extradition papers during the evaluation stage of the extradition process. Jimenez
is, thus, bereft of the right to notice and hearing during the extradition process’
evaluation stage. Further, as an extradition proceeding is not criminal in
character and the evaluation stage in an extradition proceeding is not akin to a
preliminary investigation, the due process safeguards in the latter do not
necessarily apply to the former.
On 13 January 1977, then President Ferdinand E. Marcos issued The papers by Jimenez pertain to official
Presidential Decree 1069 "Prescribing the Procedure for the Extradition of government action from
Persons Who Have Committed Crimes in a Foreign Country". On 13 November the US government. However, no official action
1994, then Secretary of Justice Franklin M. Drilon, representing the Government from the Philippines has yet
of the Republic of the Philippines, signed in Manila the "Extradition Treaty been taken. Also, the papers have some relation to
SECRETARY OF JUSTICE vs.
Between the Government of the Republic of the Philippines and the Government matters of foreign relations
LANTION MAIN DECISION
of the United States of America. "The Senate, by way of Resolution 11, with the US Government. During the evaluation
expressed its concurrence in the ratification of said treaty. On 18 June 1999, the procedure, no official
Department of Justice received from the Department of Foreign Affairs U. S. governmental action of our government has as yet
Note Verbale 0522 containing a request for the extradition of Mark Jimenez to been done; hence, the
the United States. Jimenez was charged in the United States for several
38
 violations. Pending evaluation of the aforestated extradition documents, Jimenez invocation of the right is premature. However, later,
requested copies of the official extradition request from the US Government, as records of the extradition
well as all documents and papers submitted therewith, and that he be given hearing would already fall under matters of public
ample time to comment on the request after he shall have received copies of the concern because of our
requested papers. The Secretary denied the request. Jimenez filed with the RTC government by then shall have already made an
a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and official decision to grant the
the Director of the National Bureau of Investigation, for mandamus, certiorari, extradition request.
prohibition, and to enjoin the Secretary of Foreign Affairs and the Director of the
NBI from performing any act directed to the extradition of Jimenez to the United
States, with an application for the issuance of a temporary restraining order and a
writ of preliminary injunction. The trial court ruled in favor of Jimenez. The
Secretary filed a petition for certiorari before the Supreme Court. The issues are
WoN during the evaluation stage of the extradition proceedings, Mark B.
Jimenez is entitlted to the basic due process rights of notice and hearing and
WoN the entitlement of basic due process rights at the evaluation stage of the
extradition proceedings would constitute a rbeach of the legal commitments and
obligations of the Philippine government under the RP-US Extradition Treaty.
For the first issue, the SC held YES, because in the absence of a law or principle
of law, we must apply the rules of fair play. The basic rights of notice and
hearing pervade not only in criminal and civil proceedings, but in administrative
proceedings as well. Non-observance of these rights will invalidate the
proceedings. Individuals are entitled to be notified of any pending case affecting
their interests, and upon notice, they may claim the right to appear therein and
present their side and to refute the position of the opposing parties. As for the
second issue, the SC held NO, because an application of the basic twin due
process rights of notice and hearing will not go against the treaty or the
implementing law. Neither the Treaty nor the Extradition Law precludes these
rights from a prospective extraditee. Nothing is written in the the RP-US
Extradition Treaty, the Extradition Law, as well as American jurisprudence and
procedures on extradition, regarding any prohibition against the conferment of
the two basic due process rights of notice and hearing during the evaluation stage
of the extradition proceedings.
Hong Kong Magistrate’s Court issued a warrant for the arrest of The process of preparing a formal request for
Muñoz for seven counts of accepting an advantage as an agent contrary to the extradition and its
Prevention of Bribery Ordinance, Cap. 201 of Hong Kong and seven counts of accompanying documents, and transmitting them
conspiracy to defraud, contrary to the common law of Hong Kong. Philippine through diplomatic channels, is
DOJ then received a request for the provisional arrest of Muñoz from HK DOJ not only time consuming but also leakage-prone.
pursuant to the RP-Hong Kong Extradition Agreement. RTC Manila then issued There is naturally a great
an order granting the application for provisional arrest and issuing the likelihood of flight by criminals who get an
corresponding Order of Arrest. Muñoz was arrested and detained at the NBI intimation of the pending request for
detention cell. Muñoz filed with the CA assailing the validity of the Order of their extradition. To solve this problem, speedier
Arrest. CA declared the Order of Arrest null and void on the ground that there initial steps in the form of
was no urgency, the request for provisional arrest and the accompanying warrant treaty stipulations for provisional arrest were
Secretary of Justice v. of arrest and summary of facts were unauthenticated, the requirement of dual formulated.
Muñoz criminality was not satisfied, among others. Thus, the Secretary of Justice filed
the instant petition assailing the decision of CA. Muñoz filed an Urgent Motion
for Release Pending Appeal contending that since PD 1069 sets the maximum of
provisional arrest at 20 days, and he has been detained beyond the said period,
without both a request for extradition having been received by the Philippine
DOJ and the corresponding petition for extradition having been filed in the
proper RTC, he should be released from detention. The issue is whether the
order of arrest issued by the RTC is valid. The SC ruled in the affirmative and
addressed each contention of respondent. The Court ruled that there was urgency
for the provisional arrest of respondent. Second, Second, 12 days after
respondent was provisionally arrested, the Philippine DOJ received from the HK
DOJ a request for the surrender or extradition of respondent which is in
39
 conformity with the provisions of the extradition agreement and the extradition
law. The crucial event which tolls the provisional detention period is the
transmittal of the request for the extradition or surrender of the extradite. On the
contention that his incarceration cannot continue beyond the 20-day period
without a petition for his extradition having been filed in court, Court ruled that
from the provisions of the extradition agreement and PD 1069, for the
provisional arrest of an accused to continue, the formal request for extradition is
not required to be filed in court. It only need be received by the requested state
within the periods provided in the agreement and in the law. Also, the request for
provisional arrest of respondent and its accompanying documents are valid
despite lack of authentication. Lastly, there was sufficient factual and legal basis
for the determination of probable cause as a requisite for the issuance of the
Order of Arrest.
Mark Jimenez aka. Mario Batacan Crespo is the subject of a Petition Extradition is different from an ordinary criminal
for Extradition applied for by the US Gov’t. US Gov’t. filed this Petition for proceeding.
Certiorari assailing the procedure adopted by RTC of hearing first a potential Extradition is basically an executive responsibility
extraditee, Mark Jimenez, before issuing a warrant for his arrest under Sec. 6 of PD arising from the presidential
No. 1069 (PH Extradition Law). US Gov’t. contended that the procedure gives power to conduct foreign relations. In its barest
Jimenez notice to escape and to avoid extradition. It also assailed the RTC’s concept, it partakes of the nature of
granting of Jimenez's prayer for bail, which allows him to go on provisional liberty police assistance amongst states w/c is not
while extradition proceedings are pending. Issues are WON Jimenez, as an normally a judicial prerogative.
extraditee, is entitled to notice and hearing before a warrant for his arrest can be
issued, and WON he is entitled to bail and provisional liberty while the extradition
proceedings are pending. SC held NO on both issues. SC held that the present
extradition case validates the premise that persons sought to be extradited have a
propensity to flee. Prior acts of Jimenz clearly speak of his aversion to the
processes in the requesting state, as well as his predisposition to avoid them at all
costs.
GOV’T. OF USA v. HON. Thus, first, it was grave abuse of discretion on the part of the RTC judge Purganan
PURGANAN to set the hearing for the issuance of the warrant of arrest when it was already
evident from the Petition for Extradition itself and its supporting documents that a
prima facie finding did exist and he may issue a warrant for the immediate arrest of
the accused. Second, there is no requirement to notify and to hear Jimenez
(accused) before the issuance of a warrant of arrest under the Constitution which
requires only an examination under oath or affirmation of complainants and the
witnesses they may produce. Third, since Jimenez was allowed by the RTC to be
heard and to present evidence at this early stage, it could convert the determination
of a prima facie case into a full-blown trial, which is contrary to the summary
nature of the proceedings and to the ultimate purpose of extradition proceedings i.e.
to determine whether the extradition request complies with the Extradition Treaty,
and whether the person sought is extraditable.
SC also held that Jimenez’s immediate detention prior to his being heard does not
violate the due process clause; that the right to bail applies only in ordinary
criminal proceedings; but that in extradition proceedings, after a potential
extraditee has been arrested, bail may be applied for and granted as an exception.
Philippines and Hongkong have an extradition treaty in effect. Clearly, the right of a prospective extraditee to
Private respondent Munoz was charged before the Hong Kong Court of a crime apply for bail
in violation of the Bribery laws of Hongkong. Munoz is in the Philippines and in this jurisdiction must be viewed in the light of
thus, the Hong Kong government requested to the DOJ for the arrest of Munoz. the various treaty
Hong Kong also filed a petition for the extradition of Munoz. Munoz was obligations of the Philippines concerning respect
Gov’t of Hongkong v. Olalia arrested and applied for bail. The bail was granted. Hence, Gov’t of Hong Kong for the promotion and
appealed such grant. The Court held that while the current jurisprudence does protection of human rights. Under these treaties,
not allow bail for extradition cases because it is not a criminal proceeding, the the presumption lies in
current trends on international law warrants a shift towards upholding human favor of human liberty. Thus, the Philippines should
rights. The modern trend in public international law is the primacy placed on the see to it that the right
worth of the individual person and the sanctity of human rights. Slowly, the to liberty of every individual is not impaired.
40
 recognition that the individual person may properly be a subject of international
law is now taking root. The United Nations General Assembly adopted the
Universal Declaration of Human Rights in which the right to life, liberty and all
the other fundamental rights of every person were proclaimed. While not a
treaty, the principles contained in the said Declaration are now recognized as
customarily binding upon the members of the international community.
Furthermore, our jurisprudence had already allowed bail for deportation
proceedings. The court sees no reason why the same should not apply to
extradition proceedings. Clearly, the right of a prospective extraditee to apply
for bail in this jurisdiction must be viewed in the light of the various treaty
obligations of the Philippines concerning respect for the promotion and
protection of human rights. Under these treaties, the presumption lies in
favor of human liberty. Thus, the Philippines should see to it that the right
to liberty of every individual is not impaired. Obviously, an extradition
proceeding, while ostensibly administrative, bears all earmarks of a criminal
process. A potential extraditee may be subjected to arrest, to a prolonged
restraint of liberty, and forced to transfer to the demanding state following the
proceedings. While there is a treaty between the Philippines and Hong Kong, it
does not necessarily mean that in keeping with its treaty obligations, the
Philippines should diminish a potential extraditee's rights to life, liberty, and due
process.
The schooner Exchange, owned by John McFaddon and William It is a principle of public law that national ships of
Greetham, sailed from Baltimore, Maryland for San Sebastián, Spain. war entering
The Exchange was seized by order of Emperor Napoleon Bonaparte. the port of a friendly power open for their
The Exchange was then armed and commissioned as a French warship under the reception are to be considered as
name of Balaou . When the vessel later docked in Philadelphia due to storm exempted by the consent of that power from its
damage, McFaddon and Greetham filed an action in the district court to seize the jurisdiction.
vessel, claiming that it had been taken illegally. The district court found that it A sovereign is at times, understood to have waived
did not have jurisdiction over the dispute. On appeal, the circuit court reversed the exercise of a part of that
the decision of the district court, and ordered the district court to proceed to the complete exclusive territorial jurisdiction which
THE EXCHANGE v.
merits of the case. The issue in this case wi WoN national ships of war is viewed has been stated to be the
MCFADDON
as been exempted by the consent of the power of the friendly jurisdiction whose attribute of every nation. As in the following: (1)
port the ship enters? -YES. The Supreme Court ruled that they had no the exemption of the person of
jurisdiction since the ship was a public armed ship under the control and the sovereign from arrest or detention within a
supervision of France, who at that time was at peace with the US. the ship is foreign territory. (2) immunity
deemed to have entered the US territory under an implied promise that while in which all civilized nations allow to foreign
such environment, it would be exempt from US jurisdiction. ministers. (3) where a soveriegn is
understood to cede a portion of his territorial
jurisdiction by allowing the troops
of a foreign prince to pass through his dominions.
Victory Transport chartered a ship to Comisaria General Immunity is in derogation from the normal exercise
(Spain) to carry surplus wheat purchased by the Spanish Government of
under an Agricultural Commodities Agreement w/ the US. There was an jurisdiction and should be granted only in clear
arbitration clause. The ship was damaged while in the ports of Spain w/c cases – such as:
were allegedly unsafe for large vessels. Comisaria refused to arbitrate; (1) internal administrative acts, (2) legislative acts,
thus Victory brought an action to compel the same to submit to arbitration. (3) armed forces, (4)
Victory Transport Inc. v. Comisaria invokes state immunity. diplomatic activity, and (5) public loans.
Comisaria General de Issue is WoN state immunity applies in this case – NO, Immunity cannot
Abastecimientos y apply in this case. The transaction was a commercial act (jure gestionis) –
Transportes not a strictly political or sovereign act. There was even an arbitration
clause. The US Court in this case made reference to the case of National
City Bank of New York v. Republic of China which discussed the Tate
Letter and stated that the US now adheres to the restrictive theory. "Tate
Letter" is representative of the present policy of the State Department,
suggests that the transaction giving rise to petitioner's claim was a
sovereign or public act as distinguished from a private or commercial
41
 transaction. The "Tate Letter" suggested immunity in the former case
(sovereign/public act) and none in the latter (commercial transactions).
The argument is based on the fact that the cargo of wheat aboard the S.S.
Hudson was being shipped pursuant to the Surplus Agricultural
Commodities Agreement between the United States and Spain. We have
no doubt that this is true but very simply put, petitioner's claim does not
arise out of that agreement but out of the charter party between it and
respondent.
The purpose of the restrictive theory is to accommodate the interests of
private individuals doing business w/ foreign governments, while at the
same time permitting the foreign states to do political acts w/o being
subjected to the embarrassment of defending the propriety of its acts in
foreign courts.
Venne, an architect, claimed to have been hired by the Government of Congo for Theory of sovereign immunity recognizes the
making preliminary studies and preparing sketches in relation to the national classical doctrine
pavilion which the appellant proposed to build at Expo 67. However, Congo that a foreign sovereign cannot, without his
decided not to proceed with the pavilion. Respondent Venne prepared a bill of consent, be impleaded in the courts
$20,000for services rendered which was not paid. Congo filed a declinatory of another state, whereas according to the theory of
exception whereby it claimed that, by reason of it’s status as a sovereign state, it restrictive sovereign
could not be impleaded in the Quebec Courts. The material before the Courts immunity, which has been accepted by United
consisted of the declaration or claim, the declinatory exception and 2 formal Staates Stated Department and
admissions: 1) that the appellant (Congo) had accredited its charge d’affaires as consequently by the courts of that country,
its commissioner general to the exhibition and also that 2) the Democratic immunity of the foreign sovereign is
Republic of Congo is a sovereign State. The exception was dismissed by the trail recognized only with regard to sovereign or public
Government of the judge and this was upheld also by the CA. The Government of Congo appealed o acts (jure imperii) but not
Democratic Republic of this Court. Issue: Whether the appeal should be allowed, therefore, the exception with respect to private acts (jure gestionis)
Congdo v Venne be granted. Held: Yes, the appeal should be allowed. The request for the In determining whether the act of a foreign
respondent’s services was made not only by the duly accredited diplomatic sovereign is public or private, the
representatives of the Congo who were Commissioners General of the burden of proof lies upon the sovereign to show
Exhibition but also representative of the Department of the Foreign Affairs. This that the act was a public one if it
makes it plain that in preparing for the construction of its national pavilion, a is to be granted sovereign immunity.
department of the Government of a foreign state, together with its duly
accredited diplomatic representatives were engaged in the performance of a
public sovereign act of state on behalf of their country and that the employment
of the respondent was a step taken in the performance of that sovereign act.
Therefore, it is the view of the Court that Congo could not be impleaded in the
courts of Canada even if the doctrine of restrictive sovereign immunity had been
adopted in Canada’s courts.
Cubazucar, a Cuban state-owned enterprise with independent Whether state immunity should be granted or not,
legal personality, contracted to supply sugar to a Chilean enterprise, Iansa. the court must consider the whole context in which
Delivery of the sugar was to take place in regular instalments. In August 1973, the claim
two ships, the Playa Larga and the Marble Islands, were dispatched with one against the state is made, with a view to deciding
instalment of sugar. The Playa Larga was owned by the Cuban government but whether the
chartered to Mambisa, another Cuban state-owned enterprise possessing relevant acts on which the claim is based should, in
independent legal personality, which operated all Cuban merchant shipping. that context, be
Mambisa then sub- chartered the vessel to Cubazucar for the voyage to Chile. considered as fairly within an area of activity: (1)
Congreso del Partido- Cuban The Marble Islands, however, was owned by a Liechtensteinian company which trading or
Sugar Trade had chartered her on a demise charter to Mambisa which again sub- chartered commercial or otherwise of a private law character
her to Cubazucar for the voyage. in which the
In September 1973, while the Playa Larga was discharging her cargo in state has chosen to engage; or (2) whether the
Valparaiso, the Allende government, with whom the Cubans had been on relevant acts should
friendly terms, was overthrown in a coup d'etat led by General Pinochet. The be considered as having been done outside that
Cubans found the new government to be politically repugnant and therefore area and within the
severed diplomatic relations with Chile. Laws were also passed by the Cuban sphere of governmental or sovereign activity.
government forbidding any commercial dealings with Chile. The Playa Larga
which had not completed discharging her cargo was ordered by the Cuban
42
 government to return to Cuba, which she did carrying the remainder of her
undischarged cargo. The Marble Islands, which was still at sea when these
events occurred, sailed for Vietnam where her cargo of sugar was unloaded and
a gift of it made to the Vietnamese people. While the Marble Islands was sailing
for Vietnam, her ownership was transferred from the Liechtensteinian company
to the government of Cuba.
Iansa commenced arbitration proceedings in London, during the course of which
it was discovered that Mambisa, acting on behalf of the Republic of Cuba, had
taken delivery of a new ship, I Congreso, from a British yard. Iansa therefore
issued a writ in rem against I Congreso claiming that the Republic of Cuba, as
beneficial owner of the ship, was liable in personam for breach of contract and
conversion of the sugar. Although the dispute was transferred from the Playa
Larga and the Marble Islands to I Congreso and subsequently to guaranteed
funds, there were still in effect two separate actions against these ships.
The issue is WON a plea of state immunity can be raised as to
deny jurisdiction of courts of other states as to:
As to Playa Larga- No. Generally, the basis on which one state is
considered immune from territorial jurisdiction of courts of another
state is “par in parem” which means that the sovereign or
governmental acts of one state are not matters on which the courts
of other states will adjudicate. However, exception to this is the
restrictive theory, which arises from the willingness of states to
enter into commercial or other private law transactions with
individuals. It was shown that Playa Larga was engaged in trade
with the consent, if not with the active participation of the Republic
of Cuba. Thus, they were doing business with a foreign
government
As to Marble islands – Yes. The acts of the Republic of Cuba were and
remained in their nature purely governmental. There was no purely commercial
obligation involved and the vessel never entered the trading area (remained at
sea) and never entered into commercial relations. Thus the general rule applies
which states that sovereign or governmental acts of one state are not matters on
which the courts of other states will adjudicate.
Dr. Holland, a U.S. Citizen and a professor at Troy State State immunity is a rule of customary international
University in Alabama, was sent to Menwith Hill, a military base in the U.K., law - one
where she taught courses in International Relations. Lampen-Wolf, an state cannot be sued in courts for acts performed
American educational services officer also in Menwith Hill, then wrote a jure imperii (public acts of a
memorandum which criticized Dr. Holland’s performance and it questioned state’s government). This is derived from the
her professional competence. It also requested that Holland be replaced by sovereign nature of the state’s
another professor. Dr. Holland then filed a case for damages, arguing that the exercise of its powers and is recognized by the
memorandum is untrue and is defamatory. Lampen-Wolf argues that he is principle of equality (all states
protected due to the doctrine of state immunity. The issue is now whether or are equal). It is a subject-matter immunity, and it
not Lampen-Wolf’s action is supposed to be protected by state immunity? Yes operates to prevent official
because it was done pursuant to his official function. There is a need to and governmental acts of one state from being
HOLLAND v. LAMPEN-
distinguish between jure imperii (public act of the government) or jure called into question in
WOLF
gestionis (commercial activities of the state). This can only be done by looking procedings before the ocurts of another.
at the context of the case. As argued by Lampen-Wolf, the term “armed
forces” covers also individuals who are not military personnel in a technical
sense (aka ‘di kailangang soldier who actually shoots people on the field).
Being a civilian educational services officer may not be traditionally seen as a
normal act under jure imperii , the circumstances show that it happened in a
U.S. military base and involved only U.S. citizens. More importantly, he is
covered by State immunity because the memorandum was concerned with his
duty – to supervise and monitor the quality of educational services given to
the armed forces . Each state can decide how best to organize its own forces
and the services related thereto. This can involve services which are not
43
 military in the strict sense – e.g. services to sustain morale or promote physical
and mental well-being. In this case, the educational services had a grave
impact on the promotion of the armed forces and in their assignments in
various countries and missions. Therefore, the act was clearly under jure
imperii .
The Ministry of Defense of Nigeria entered into a contract with A foreign sovereign has no immunity when it enters
Pan-African for the shipment of Portland Cement. In order for payment to be into a
done, the Central Bank of Nigeria opened a letter of credit in favor of Pan- commercial transaction with a trader here and a
African. Payment was then coursed through the Central Banks correspondent, dispute arises which is properly
Midland Bank. In order to comply with its contract, Pan-African ordered the within the territorial jurisdiction of our courts. If a
cement from Trendtex, to which letter of credit was subsequently transferred to foreign government
it. After shipment of the first four cements, Trendtex was paid by Midland; incorporates a legal entity which buys commodities
however as to the additional two shipments (a total of 6), Trendtex was no on the London market; or if
longer paid based on the Central Banks order apparently due to the crisis in the it has a state department which charters ships on
port. This prompted Trendtex to file an action for collection of damages against the Baltic Exchange: it thereby
the Central Bank of Nigeria, but the High Court ruled in Central Banks favor enters into the market places of the world: and
TRENDTEX v. CENTRAL declaring it immune from suit. Hence this appeal, whether or not Central Bank international comity requires that
BANK OF NIGERIA is immune. it should abide by the rules of the market.
The Court held that the Central Bank of Nigeria is not immune from suit. The
Court took note of the prevailing changes in international law when it comes to
the doctrine of sovereign immunity, and applied the doctrine of incorporation.
This doctrine of incorporation basically states that international law is
automatically adopted by the country except when it conflicts with an Act of
Parliament. In this case, the modern rule as to immunity is the restrictive
immunity. And as such, when a foreign sovereign or government enters into
commercial transactions or in its proprietary function, they cannot claim
sovereign immunity. Moreover, the Central bank of Nigeria in particular is not
an emanation of the state that can claim immunity thus it was bound to the suit
filed against it by Trendtex.
Rossi and Wyers are both employed as gameroom attendants in In the case of foreign states, the rule is derived from
the special services department of the NAVSTA. Their employment had been the principle
converted from permanent full-time to permanent part-time so they instituted of the sovereign equality of states which wisely
grievance proceedings. The recommendation from the hearing officer was to admonishes that par in parem
reinstate the two to permanent full-time status plus backwages. Sanders, the non habet imperium and that a contrary attitude
special services director of NAVSTA, sent a letter to Moreau, the commanding would "unduly vex the peace of
officer of the base which includes the same station, disagreeing to the nations." Our adherence to this precept is formally
recommendation. Before the start of the grievance proceedings, Moreau sent a expressed in Article II,
letter to the Chief of Naval Personnel explaining the change of the employment Section 2, of our Constitution, where we reiterate
status and requesting concurrence therewith. Because of this, Rossi and Wyers from our previous charters that
filed a complaint for damages against Sanders and Moreau and made it clear that the Philippines "adopts the generally accepted
they were being sued in their personal capacity. Sanders and Moreau argued that principles of international law as
the case should be dismissed because they performed the duties in their official part of the law of the land.
SANDERS v. VERIDIANO capacities and therefore, CFI had no jurisdiction over them under the doctrine of
state immunity. CFI ruled in favor of Rossi and Wyers. W/N Sanders and
Moreau should be liable in their personal capacity – NO, the acts for which the
Sanders and Moreau are being called to account were performed by them in the
discharge of their official duties. Sanders has supervision over NAVSTA’s
personnel while Moreau was the superior of Sanders and directly answerable to
Naval Personnel in matters involving the special services department of
NAVSTA. As they have acted on behalf of the US government, and within the
scope of their authority, it is that government, and not Sanders and Moreau
personally, that is responsible for their acts. There should be no question by now
that such complaint cannot prosper unless the government sought to be held
ultimately liable has given its consent to be sued. The doctrine of state immunity
is applicable not only to our own government but also to foreign states sought to
be subjected to the jurisdiction of our courts. Because it is the US government
44
 that must be answerable to the reliefs prayed for by Rossi and Wyers, the case
must be dismissed for lack of jurisdiction.
Pinochet was General and Commander in Chief in Chile until he organized a A former head of state had immunity from UK
coup and assumed the position as President of Chile. While the President, criminal jurisdiction for acts done
Pinochet committed several Human rights violations which included hostage in official capacity as head of state but not for
taking, torture, and murder of his political opponents. Pinochet after some years crimes of torture or conspiracy to
resigned as President. He travelled to London for medical treatment. That was torture after ratification of international convention
when he was issued a warrant and was arrested. The warrant originated in Spain relating thereto.
and the Metropolitan Magistrate issued a provisional warrant to arrest Pinochet.
Pinochet argued that as a Head of State, he is immune from criminal charges.
R v. Bow Street
The issue is whether or not Pinochet, a former head of state, is immune from
Metropolitan Stipendiary
criminal charges that he committed as President of Chile.
Magistrate, ex parte
The Court vehemently said that Pinochet is not immune. The court explained
Pinochet
that while in position, a head of state enjoys immunity ratineo personae which
attaches to his person as the head of the state. But the same cannot be said to a
former head of state. Since Pinochet is not the current head of state, he merits no
immunity as a person. He can be considered immune based on the actions he
committed. The court said that to be immune rationae materiae the acts done
must be from functions of a head of state. In this case, murder, torture, and
hostage taking cannot be considered as functions of the head of state. Hence,
Pinochet is not immune.
The applicant Al Adsani went to Kuwait served as a pilot in the Kuwaiti Air The right of access to a court is not absolute and
Force during the Gulf War and remained in Kuwait after the Iraqi invasion. He came into may be subject to limitations
possession of sexual video tapes involving a Sheikh related to the Emir of Kuwait. According that pursue a legitimate aim and which ensure that
to the applicant, the sheikh, who held him responsible for the tapes entering general there is reasonable relationship of
circulation, gained entry to his house along with two others, beat him and took him at proportionality between the means employed and
gunpoint to the State Security Prison, where he was detained for several days and repeatedly the aim sought to be achieved. Applying
beaten by guards. He was later taken at gunpoint to a palace where he was repeatedly held this test to the application of state immunity laws,
under water in a swimming pool before being taken to a small room where the sheikh set fire the European Court has made clear its view
to mattresses soaked in petrol, as a result of which the applicant sustained serious burns. After that the grant of sovereign immunity to a State in
returning to the United Kingdom, the applicant instituted civil proceedings against the sheikh civil proceedings does pursue the legitimate
and the Government of Kuwait. He obtained a default judgment against the sheikh and was aim of complying with international law to promote
subsequently granted leave to serve proceedings on two named individuals. However, he was comity and good relations between States
refused leave to serve the writ on the Kuwaiti Government. On appeal, the Court of Appeal through the respect of another State’s sovereignty.
concluded that leave should be granted and the writ was served, but on the application of the
Kuwaiti Government the High Court ordered that the proceedings be struck out on the ground
that the Kuwaiti Government was entitled to state immunity. The applicant's appeal was
dismissed by the Court of Appeal and leave to appeal to the House of Lords was refused. The
CASE OF AL-ADSANI v. THE
issue in this case is WON the Kuwaiti Government must be granted State Immunity. The
UNITED KINGDOM
Court said that it is entitled to State Immunity because in the present case, the applicant did
not contend that the alleged torture took place within the jurisdiction of the United Kingdom
or that the United Kingdom authorities had any causal connection with its occurrence. Thus, it
could not be said that the State was under a duty to provide a civil remedy in respect of
torture allegedly carried out by the Kuwaiti authorities. Moreover, the applicant contended
that the prohibition of torture had acquired the status of jus cogens, taking precedence over
treaty law and other rules of international law. While his allegations had never been proved,
the alleged ill- treatment could properly be categorised as torture within the meaning of
Article 3 of the Convention. The right enshrined in that provision is absolute and several other
international treaties also prohibit torture; in addition, a number of judicial statements have
been made to the effect that the prohibition of torture has attained the status of a peremptory
norm or jus cogens, which the Court accepted. However, the present case did not concern the
criminal liability of an individual but the immunity of a State in civil proceedings and there
was no firm basis in international instruments, judicial authorities or other materials for
concluding that, as a matter of international law, a State no longer enjoys immunity from civil
suit in the courts of another State in respect of alleged torture. Consequently, the United
Kingdom statute was not inconsistent with those limitations generally accepted by the
45
 community of nations as part of the doctrine of State immunity and the application of its
provisions could not be said to have amounted to an unjustified restriction on the applicant's
access to court.
Germany instituted proceedings against the Italian Republic, Under customary international law as it presently
requesting the Court to declare that Italy had failed to respect the jurisdictional stood, a State
immunity which Germany enjoys under international law. Greece stated that it was not deprived of immunity by reason of the fact
wished to intervene in the aspect of the procedure relating to judgments rendered that it was accused of serious
by its own courts on the Distomo massacre and enforced (exequatur) by the violations of international human rights law or the
Italian courts. international law of armed
On whether Italy had violated Germany’s jurisdictional immunity by allowing conflict.
civil claims to be brought against Germany in the Italian courts for reparations The rules of State immunity were confined to
for injuries caused by the Third Reich during the WWII: the Court held that (1) a determining whether or not the
state is not deprived of immunity by reason of fact that it was accused of serious courts of one State could exercise jurisdiction in
violations of international human rights or armed conflict, (2) the principle of respect of another State. They
state immunity does not conflict with jus cogens norms because state immunity did not bear upon the question whether or not the
Jurisdictional Immunities of
is confined to the exercise of jurisdiction of one state in respect of another’s, and conduct in respect of which the
the State (Germany v. Italy,
not whether conduct is lawful or unlawful, and (3) state immunity is not proceedings were brought was lawful or unlawful;
Greece Intervening)
dependent on alternative means to secure redress. hence, not in conflict with jus
On whether a measure of constraint taken against property belonging to cogens norms.
Germany located on Italian territory constituted a breach by Italy of Germany’s
immunity: Germany had in no way consented to the registration of the legal
charge in question, nor allocated Villa Vigoni for the satisfaction of the judicial
claims against it. Since the conditions permitting a measure of constraint to be
taken against property belonging to a foreign State had not been met, Italy had
violated its obligation to respect Germany’s immunity.
On whether Italy had violated Germany’s immunity by declaring enforceable in
Italy civil judgments rendered by Greek courts against Germany in proceedings
arising out of the massacre committed in the Greek village of Distomo: the Court
held that it was also a violation of Germany’s state immunity.
An investigating judge of Brussel issued an international arrest In customary international law, the immunities
warrant in absentia against Mr. Abdulaye Yerodia Ndombasi, Minister of accorded to
Foreign Affairs of Congo, charging him as perpetrator or co-perpetrator of Ministers for Foreign Affairs are not granted for
offenses constituting grave breaches of Geneva Conventions of 1949 and of their personal benefit, but to
Additional Protocols, and with crimes against humanity. Congo instituted ensure the effective performance of their functions
proceedings before ICJ, requesting Belgium to annul the arrest warrant. Congo’s on behalf of their respective
arguments include that this constituted a violation of the principle of States.
ARREST WARRANT OF 11
sovereignty, violation of diplomatic immunity of the Minister of Foreign The iminunity and that inviolability protect the
APRIL 2000 (DEMOCRATIC
Aggairs, and violation of immunity from criminal process under customary individual concerned against any
REPUBLIC
international law. WoN Mr. Abdulaye Yerodia Ndombasi was immune from act of authority of another State that would hinder
OF THE CONGO v.
criminal prosecution? Yes because Ndombasi enjoys immunity under customary him or her in the perfomance
BELGIUM)
international law. The Court finds that the cited Conventions provide useful of his or her duties.
guidance on certain aspects of the question of immunities, but that they do not The Court emphasizes, however, that the immunity
contain any provision specifically defining the immunities enjoyed by Ministers from jurisdiction enjoyed by
for Foreign Affairs. After an examination of Minister of Foreign Affairs’ incumbent Ministers for Foreign Affairs does not
functions, the Court concludes that they are such that, throughout the duration of mean that they enjoy impunity
his or her office, a Minister for Foreign Affairs when abroad enjoys full in respect of any crimes they might have
immunity from criminal jurisdiction and inviolability. committed, irrespective of their gravity.
ETC learned of an anomalous transaction on the award of the The Act of State Doctrine has no application when
construction of the Kaduna Air Force Base to Kirkpatrick – that Harry Carpenter the case has no
(Kirkpatrick’s Chairman), entered into an agreement with Benson Akindele (a issue on the validity of a foreign sovereign act. The
KIRKPATRICK v. Nigerian citizen) wherein the latter will secure the award of the contract to the doctrine does not establish
ENVIRONMENTAL former, so that Kirkpatrick will pay 20% commission of the contract price to an exception for cases and controversies that may
TECTONICS Panamanian entities controlled by Akindele, which would be given as a bribe to embarrass foreign
Nigerian officials. ETC informed the US Attorney for the District of New Jersey, governments, but merely requires that, in the
which filed charges against Carpenter and Kirkpatrick for violation of the process of deciding, the acts of
Foreign Corrupt Practices Act – both pleaded GUILTY. Hence, ETC filed this
46
 civil complaint for damages pursuant to the Anti-Roecketeering Act, etc. foreign sovereigns taken within their own
Kirkpatrick filed a motion to dismiss on the ground that the action was barred by jurisdictions shall be deemed valid.
the Act of State Doctrine (every sovereign state is bound to respect the o Exceptions: (1) Commercial transactions; (2)
independence of every other sovereign state, and the courts will not sit in When the executive
judgment of another government's acts done within its own territory ). The branch has no objection to denying validity to the
district court treated the motion as a summary judgment and granted the motion foreign sovereign act.
on the ground that it would result in embarrassment to the sovereign or constitute
interference in the conduct of foreign policy of the US. The CA reversed on the
ground that judicial inquiry into the purpose behind the act of a foreign
sovereign would not produce the unique embarrassment and interference with
the conduct of foreign affairs that may result from the judicial termination that a
foreign sovereign’s acts are invalid.
The issue is whether the Act of State Doctrine bars the instant case.
The Court ruled in the negative. For the doctrine to apply, the relief sought
would have required a court in the US to declare invalid the official act of a
foreign sovereign performed within its own territory. Neither the claim nor any
asserted defense requires a determination that Nigeria's Kaduna contract with
Kirkpatrick was, or was not, effective, but whether ETC is entitled to damages –
its legality is simply not a question to be decided in the present suit, and there is
thus no occasion to apply the rule of decision that the act of state doctrine
requires – the issue is actually whether the alleged acts occured.
These are cases that have been consolidated because they all The rule that a State may not be sued without its
involve the doctrine of state immunity. The United States of America was not consent is one
impleaded in the case at bar but has moved to dismiss on the ground that they are of the generally accepted principles of international
in effect suits against it to which it has not consented. The issue in these cases is law that were have
WoN the private defendants were also immune from suit for acts done by them adopted as part of the law of our land. While the
in the performance of their official duties. The Court held in the affirmative. doctrine appears to prohibit
only suits against the state without its consent, it is
also applicable to
complaints filed against officials of the states for
acts allegedly performed
by them in the discharge of their duties. Moreover,
when the government
enters into a contract, it is deemed to have
descended to the level of the
United States of America vs.
other contracting party and divested of its
Guinto
sovereign immunity from suit with
its implied consent. In the case of US, the customary
law of international law on
state immunity is expressed with more specificity
in the RP-US Bases Treaty.
There is no question that the US, like any other
state, will be deemed to have
impliedly waived its non-suability if it has entered
into a contract in its
proprietory or private capacity (commercial acts).
It is only when the contract
involves its sovereign or governmental capacity
(governmental acts) that no such
waiver may be implied.
During the Marcos regime, Vicente Chuidian (Chuidian), as a (it was not really stated in the case, however, this is
favored business associate of the Marcoses, was able to induce Philippine Export just my
and Foreign Loan Guarantee Corporation (PHILGUARANTEE), the Board of interpretation in relation sa topic sa syllabus – that
Chuidian v. Sandiganbayan
Investment (BOI) and the Central Bank to issue a loan (US$25M) in favor of the state may not be sued
Asian Reliability Company, Incorporated (ARCI), a corporation which is 98% without its consent ) Foreign judgments should not
allegedly owned by Chuidian. However, while the loan proceed was represented be recognized, if the action
47
 to be used for five inter-related projects in the Philippines, Chuidian reneged on would amount to a legal action against the State
the approved business plan and instead invested the proceeds in corporations without the latter’s consent. In
operating in the US. Subsequently, ARCI defaulted in the payments of the loan this case, if the foreign judgment was to be
compelling PHILGUARANTEE to pay for the same. This prompted enforced, ASSUMING that PNB was
PHILGUARANTEE to sue Chuidian before the Santa Clara County Superior ordered to pay the L/C, then it would amount to
Court. But PHILGUARANTEE and Chuidian decided to enter into a legal proceedings without the
compromise agreement where it was agreed that Chuidian shall assign and State’s consent because the L/C was already
surrender title to all his companies in favor of the PH government and in return, sequestered in favor of the
PHILGUARANTEE shall desist from any legal action that will make Chuidian government. Therefore, allowing the foreign
civilly and criminally liable. It was also agreed that instead of Chuidian judgment as a basis for the payment
reimbursing the payments made by PHILGUARANTEE arising from Chuidian’s to Chuidian and the lifting of the attachment would
default, the PH government should pay Chuidian the amount of US$5.3M. Initial essentially amount to an
payments were made and the balance was to be paid through an irrevocable abdication of the jurisdiction of the Sandiganbayan
Letter of Credit (L/C) to be issued by the PNB. to hear and decide the ill
Later, with the advent of the Aquino administration, the PCGG was established gotten wealth cases lodged before it in deference to
and the properties of Chuidian were among those assets that were sequestered. the judgment of foreign
Philguarantee filed a motion before the Superior Court of Santa Clara County of courts.
seeking to vacate the compromise agreement containing the settlement between
Philguarantee and Chuidian but it was denied. Chuidian also filed an action
before the United States District Court, Central District of California, an action
against PNB seeking, among others, to compel PNB to pay the proceeds of the
L/C. PNB countered that it cannot be held liable for a breach of contract under
principles of illegality, international comity and act of state, and thus it is
excused from payment of the L/C. Philguarantee intervened in said action,
raising the same issues and arguments it had earlier raised in the action before
the Santa Clara Superior Court, alleging that PNB was excused from making
payments on the L/C since the settlement was void due to illegality, duress and
fraud. The Federal Court rendered judgment ruling in favor of PNB excusing the
said bank from making payment on the L/C, and in Chuidian’s favor by denying
intervenor Philguarantees action to set aside the compromise agreement.
The Republic of the Philippines (RP) filed before the Sandiganbayan civil cases
against Chuidian who was alleged to be in conspirary with the Marcoses. While
the case was pending, the RP filed a motion for writ of attachment against L/C
for the satisfaction of judgment which was granted by the Sandiganbayan.
Chuidian’s contention hinged on the fact that he was given a favorable judgment
by the foreign court when the latter uphold the compromise agreement between
PHILGUARANTEE and Chuidian. Issue is WoN the foreign judgment can be
the basis to claim for payment and to lift the attachment. The court held in the
negative. The court held that Chuidian’s own evidence which is the foreign
judgment merely strengthen the position of the PH government because although
it was admitted in the judgment that Chuidian got a favorable decision, it was
also stated that PNB is excused from the payment of the L/C as long as the
sequestration order remains in effect. Furthermore, the foreign judgment
recognizes the validity of the sequestration and freeze orders as an act of the
state, and therefore, if PNB would pay the L/C, then it would be illegal under the
PH laws because it is an act of defiance against a valid order from the state.
SOH Romualdez Jr issued AO 27, s. of 1998 providing for the The rule that a state may not be sued without its
guidelines and procedures on the accreditation of government suppliers for consent , now
pharmaceutical products. This was later amended by AO 10, s. of 2000, embodied in Section 3, Article XVI of the 1987
providing for additional guidlelines that only qualified bidders can transact Constitution , is one of the
DAYRIT v. PHIL business with DOH, particularly only products accredited by the Committee generally accepted principles of international law ,
PHARMAWEALTH shall be allowed to be procured by the DOH. Pharmawealth submitted to DOH a which we have now adopted
request for the inclusion of additional items in its list of accredited drug as part of the law of the lan.
products, including the antibiotic "Penicillin G Benzathine”, but it was not An action at law or suit in equity against a State
timely accredited by the time of invitation for bids of DOH for the procurement officer or the director of a State
of 1.2 million units vials of Penicillin G Benzathine (Penicillin contract). But
48
 Pharmawealth still participated, despite lack of accreditation of its penicillin department was claiming to act for the State but,
product from DOH. There were only two bidders: Pharmawealth and YSS actually, violates or invades the
Laboratories’, in which Pharmawealth submitted the lower bid (₱82.24 per unit; personal and property rights of the plaintiff, under
YSS - ₱95.00 per unit). However, the contract was awarded to YSS due to nonaccreditation an unconstitutional act or
of Pharmawealth’s penicillin products. Pharmawealth, then, filed a under an assumption of authority which he does
complaint against SOH Dayrit (succeeded Romualdez), USec Galon and Usec not have, is not a suit against
Lopez for the nullification of the award to YSS and for the same to be awarded the State within the constitutional provision that
to Pharmawealth, and to adjudge Dayrit et al to be jointly and severally liable for the State may not be sued
specific damages. Dayrit et al filed a motion to dismiss based on doctrine of without its consent. The rationale for this ruling is
state immunity. RTC denied the motion to dismiss and their MR. On appeal to that the doctrine of state
CA, CA affirmed RTC and subsequently denied their MR. Hence, this instant immunity cannot be used as an instrument for
petition for review. perpetrating an injustice.
Issue before the SC is whether or not CA erred in upholding the denial of motion
to dismiss.
The SC upheld the CA’s ruling. SC held that there is merit in Pharmawealth’s
argument. While the doctrine of state immunity appears to prohibit only suits
against the state without its consent, it is also applicable to complaints filed
against officials of the state for acts allegedly performed by them in the
discharge of their duties. The rule, however, is not so all-encompassing as to be
applicable under all circumstances. The rule does not apply where the public
official is charged in his official capacity for acts that are unauthorized or
unlawful and injurious to the rights of others. Neither does it apply where the
public official is clearly being sued not in his official capacity but in his personal
capacity, although the acts complained of may have been committed while he
occupied a public position. SC noted that Dayrit et al are being sued in their
personal capacities for damages in connection with their alleged act of "illegally
abusing their official positions to make sure that Pharmawealth would not be
awarded the Benzathine contract which act was done in bad faith and with full
knowledge of the limits and breadth of their powers given by law". However, the
mere allegation that a government official is being sued in his personal capacity
does not automatically remove the same from the protection of the doctrine of
state immunity. These are matters of evidence which should be presented and
proven at the trial.
PROVI entered into an agreement with TESDA which sprang A continued adherence to the doctrine of non-
from a failed public bidding conducted by the latter in which the parties agreed suability is not to be
that PROVI will provide goods and services in relation to the printing and deplored for as against the inconvenience that may
encoding of PVC cards. During the performance of the contract, PROVI alleged be caused private parties, the
that TESDA had an outstanding balance of ~P35M, which prompted the former loss of governmental efficiency and the obstacle to
to file a collection case with prayer of attachment. TESDA countered that the performance of its
attachment should not issue since garnishment involved public funds. RTC multifarious functions are far greater if such a
denied, CA reversed. The issue is whether attachment and the claim may fundamental principle were
Professional Video v. TESDA prosper. The SC held in the negative, ruling that TESDA is acting in its abandoned and the availability of judicial remedy
governmental capacity, and the mere fact that it will sell the PVC cards to its were not thus restricted. With
trainees does not amount to an action of a proprietary character since it is the well known propensity on the part of our
implied from the law creating TESDA that it has the power to identify its people to go to court, at the least
trainees. The Court further held that even assuming that TESDA is acting in a provocation, the loss of time and energy required to
proprietary capacity, the funds for the collection suit may not be attached since it defend against law suits, in
is in the character of public funds. the absence of such a basic principle that
constitutes such an effective obstacle,
could very well be imagined.
Josefina was hired by ACTI on behalf of the Minsitry of Public Health The foreign law is treated as a question of fact to be
of Kuwait as medical technologist under a two-year contract. Josefina was put under properly pleaded
ACTI OVERSEAS probation for one year following Kuwait law. Before the end of the one-year period, and proved as the judge or LA cannot take judicial
CORPORATION v ECHIN Josefina was terminated. She returned to the Philippines and filed a, illegal dismissal notice of a foreign law. Where a
case. The LA, NLRC, and CA held that ACTI and its offier, Ikdal is liable for foreign law is not pleaded, or even if not pleaded, is
illegally dismissing Josefina. Hence this petition. The issues are: (a) Whether ACTI not proven, the presumption is
49
 can plead the immunity of the Ministry to escape liability, and (b) Whether ACTI that the foreign law is the same as ours
can invoke the application of Kuwaiti law as provided in the MOA. The Court voted
in the negative on both counts. First, the obligations covenanted in the recruitment
agreenet entered into by and between the local agent and its foreign principal are not
coterminous with the term of such agreement. The imposition of joint and solidary
liability is in line with the policy of the state to protect and alleviate the plight of the
working class. Second, did not submit a copy of the pertinent Kuwaiti labor laws
duly authenticated and translated by Embassy officials thereat, as required under the
Rules. The party invoking the application of a foreign law has the burden of proving
the law, under the doctrine of processual presumption. Hence, Philippine laws are
applied in the case.
The OSG asked help from the Government of Switzerland to Every sovereign state is bound to respect the
investigate the illgotten wealth of the Marcoses, in lie with this Switzerland freezed independence of every other state, and
some accounts that were provided by the OSG in a list. Officeco was in that list and the courts of one country will not sit in judgment on
they now question the propriety of their accounts being frozen. They went to the the acts of the government of
Sandiganbayan and prayed that the PCGG to advise the Swiss government to another, done within its territory. Redress of
unfreeze their accounts. PCGG filed a motion to dismiss on 4 grounds but it was grievances by reason of such acts must
dismissed by the Sandiganbayan. be obtained through the means open to be availed
The issues are WoN the Sandiganbayan erred in not dismissing Civil Case No. 0164 of by sovereign powers as between
on the grounds of: themselves.
(1) res judicata
SC held that res judicata does not apply since the subject matter and the interest of
the parties are not identical. The Swiss are interested only in the propriety of giving
GUNIGINDO v.
legal assistance to the Philippines, and the PCGG is interested in resolving issues
SANDIGANBAYAN
regarding ill-gotten wealth wherever it may be located.
(2) lack of jurisdiction on account of the act of state doctrine
SC held that this doctrine would not apply because the Sandiganbayan will not
examine and review the freeze orders of the concerned Swiss officials. They will
only examine the position of PCGG in not advising the Swiss officials to unfreeze
the accounts of Officeco
(3) failure to exhaust administrative remedies
SC held that the administrative remedies are only available the freeze orders made in
the Philippines and not to those issued by other countries.
(4) lack of cause of action
SC held that there is a cause of action because the allegations presented need to be
backed by evidence. (see ratio no. 6 under cause of action)
On November 4, 1979, Iranian students seized the US Embassy in The Iranian state was under obligation to protect
Tehran and a number of consulates in outlying cities. The Iranian authorities the premises of
failed to protect the Embassy and later appeared to adopt the students’ actions. the mission, and breached the same in failing to
Over 50 US nationals (mostly diplomatic and consular staff) were held for 444 protect and secure the premises
days. The ICJ had indicated provisional measures against Iran (ICJ Rep 1979 7), and for even tolerating the actions of the student
and in this case the US sought a declaration, inter alia, that Iran had violated the militants. Instead, expressions
two Vienna Conventions, and calling for the release of the hostages and the of approval for the attacks were made by Ayatollah
vacation of the Embassy and consulates. ISSUE: WoN the initial attack by the and Iranian officers. The
U.S. DIPLOMATIC AND students could be attributed to the Iranian Government and whether Iran was Iranian government gave its consent to the attack
CONSULAR STAFF IN therefore in violation of its international obligations. YES, because for the upon the diplomatic premises,
TEHRAN (U.S. FIRST PHASE of events, the Iranian authorities: were fully aware of their violation of its dignity, and the detention of
v. IRAN) obligations under the conventions in force to take appropriate steps to protect the diplomats; thus the perpetrators in
premises of the United States Embassy and its diplomatic and consular staff effect became “agents” of the Iranian Government.
from any attack and from any infringement of their inviolability, and to ensure Iran is therefore
the security of such other persons as might be present on the said premises; were internationally responsible.
fully aware, as a result of the appeals for help made by the United States
Embassy, of the urgent need for action on their part; had the means at their
disposal to perform their obligations; completely failed to comply with these
obligations. were equally aware of their obligations to protect the United States
Consulates at Tabriz and Shiraz, and of the need for action on their part, and
50
 similarly failed to use the means which were at their disposal to comply with
their obligations. For the SECOND PHASE, the occupation having taken place
and the diplomatic and consular personnel of the United States’ mission having
been taken hostages, the action required of the Iranian Government by the
Vienna Conventions and by general international law manifest its plain duty was
at once to make every effort, and to take every appropriate step, to bring these
flagrant infringements of the inviolability of the premises, archives and
diplomatic and consular staff of the United States Embassy to a speedy end, to
restore the Consulates at Tabriz and Shiraz to United States control, and in
general to re-establish the status quo and to offer reparation for the damage. The
Iranian authorities’ decision to continue the subjection of the premises of the
United States Embassy to occupation by militants and of the Embassy staff to
detention as hostages, clearly gave rise to repeated and multiple breaches of the
applicable provisions of the Vienna Conventions even more serious than those
which arose from their failure to take any steps to prevent the attacks on the
inviolability of these premises and staff. The Iranian Government did not break
off diplomatic relations with the United States; and in response to a question put
to him by a Member of the Court, the United States Agent informed the Court
that at no time before the events of November 4, 1979 had the Iranian
Government declared, or indicated any intention to declare, any member of the
United States diplomatic or consular staff in Tehran persona non grata. The
Iranian Government did not, therefore, employ the remedies placed at its
disposal by diplomatic law specifically for dealing with activities of the kind of
which it now complains. Instead, it allowed a group of militants to attack and
occupy the United States Embassy by force, and to seize the diplomatic and
consular staff as hostages; instead, it has endorsed that action of those militants
and has deliberately maintained their occupation of the Embassy and detention
of its staff as a means of coercing the sending State. It has, at the same time,
refused altogether to discuss this situation with representatives of the United
States. The Court, therefore, can only conclude that Iran did not have recourse to
the normal and efficacious means at its disposal, but resorted to coercive action
against the United States Embassy and its staff.
A member of the Nicaraguan diplomatic staff was charged of Diplomatic immunity ceases to be enjoyed at the
possession of drugs as well as prohibited weapons (2 revolvers and a mace), as moment the
well as careless storage ammunition. He left the country (Canada) temporarily diplomat leaves the country, or on expiry of a
for a trip to the US. When he returned, he was arrested and charged therefor. reasonable period in w/c to do so.
The issue is WoN Palacios is protected by diplomatic immunity. The Court
ruled in the affirmative. True that diplomatic immunity ceases from the
moment a diplomat leaves the country, or after the expiry of a reasonable
Regina v. Palacios period for him to do so after the termination of his functions. This allows
him to wind up his affairs without being “pounced on” by the authorities of the
host state. However, when the Vienna Convention on Diplomatic Relations
makes use of the words “leaves the country” it should be understood to
mean permanently, not temporarily. It would require the clearest possible
language in the Convention to diminish the rights of diplomats. That being the
case, the diplomat’s visit to the US could not have deprived him of his
immunity.
The Holy See, who exercises sovereignty over the Vatican City, The right of a foreign sovereign to acquire property,
and is represented in the Philippines by the Papal Nuncio, sold its parcel of land real or
in Paranaque to a Philippine national who then assigned his rights to a Philippine personal, in a receiving state, necessary for the
Corporation. The squatters on the land refused to vacate, so a dispute arose as to creation and maintenance of its
HOLY SEE v. ROSARIO which of the parties had the responsibility of clearing the land. What diplomatic mission, is recognized in the 1961
complicated this more was that the Holy See again sold the land to another party. Vienna Convention on Diplomatic
WON The Holy See was in fact a sovereign state. Yes. The Court ruled that Relations (Arts. 2022). The Holy See is immune
indeed it is a sovereign state. The Court cited seven separate publicists and from suit because the act of
concluded that this appears to be the universal practice in international relations.
51
 WON The Holy See deserved the benefit of sovereign immunity in this case. - selling the lot of concern is non-proprietary in
Yes.s The Court summarized the current state of the law, invoking the nature. The act of transferring the
Incorporation clause, that we have adopted the generally accepted principles of property was clothed with governmental character,
international law. This is not only in our Constitution but also is a condition and not for profit or gain but
consequence of our admission in the society of nations. It is well established that because the land was impossible to use as an
a sovereign cannot be sued without its consent with regard to its public acts. The official residence.
Court also applied the restrictive theory in the Philippines, since there was no Procedure for state claiming sovereign immunity:
legislation on the matter, the Court tried to absorb State practice and customary when a state or international
principles. The Court held that the Holy See was entitled to sovereign immunity, agency wishes to plead immunity in a foreign court,
for its act of transferring the property was clothed with governmental character, it requests the Foreign
not for profit or gain but because the land was impossible to use as an official Office of the state where it is sued to convey to the
residence. court that the defendant is
entitled to immunity in the Philippines, the practice
is for the foreign
government or the international organisation to
first secure an executive
endorsement of its claim of immunity.
Minucher is an Iranian national who came to study in UP in 1974 If the acts giving rise to a suit are those of a foreign
and was appointed Labor Attache for the Iranian Embassies in Tokyo and government
Manila; he continued to stay in the Philippines when the Shah of Iran was done by its foreign agent, although not necessarily a
deposed by Khomeini, he became a refugee of the UN and he headed the Iranian diplomatic personage,
National Resistance Movement in the Philippines. On the other hand, Scalzo was but acting in his official capacity, the complaint
a special agent of the US Drugs Enforcement Agency. He conducts surveillance could be barred by the
operations on suspected drug dealers in the Philippines believed to be the source immunity of the foreign sovereign from suit
of prohibited drugs shipped to the US and make the actual arrest without its consent. Suing a
Minucher and one Abbas Torabian was charged for a violation of Act. 6425 representative of a state is believed to be, in effect,
(Dangerous Drugs Act of 1972) before the Pasig RTC, such criminal charge was suing the state itself. The
followed by a buy-bust operation conducted by the Philippine police narcotic proscription is not accorded for the benefit of an
agents to which Scalzo was a witness for the prosecution. They were acquitted individual but for the State, in
Later on, Minucher filed a complaint for damages against Scalzo. It was said that whose service he is.
Minucher and Scalzo came to know of each other thru Jose Iñigo; they (In this case though Scalzo was not part of those
conducted some business i.e. the former sold to the latter some caviar and listed in the convention as
Persian carpets. Scalzo then represented himself as a special agent of the Drug immune from suit as a member of a diplomatic
Enforcement Administration, DOJ of US. Minucher expressed his desire to mission, he is nevertheless
obtain a US Visa for him and his Abbas wife. Scalzo told him that he could help immune on the basis of state immunity from suit
him for a$2,000 fee per visa. After a series of business transactions between the because he is acting as a
MINUCHER v. CA two, when Scalzo came to deliver the visas to Minuchers house, he told the latter representative of the US government)
that he would be leaving the Philippines soon and requested him to come out of As to other doctrine for immunities which I find
the house so he can introduce him to his cousin waiting in the cab. To his also relevant:
surprise, 30-40 armed Filipino soldiers came to arrest him • Vesting a person with diplomatic immunity is a
In his complaint for damages, he said that some of his properties were missing prerogative of the
like Persian carpets, a painting together with his TV and betamax sets. There was executive branch of the government.
nothing left in his house. He averred that the said arrest was merely staged by • The main yardstick in ascertaining whether a
Scalzo. In his defense, Scalzo asserted his diplomatic immunity as evidenced by person is a diplomat
a Diplomatic Note. He contended that it was recognized by the US Government entitled to immunity is the determination of
pursuant to the Vienna Convention on Diplomatic Relations and the Philippine whether or not he
government itself thru its Executive Department and DFA. The issue is WoN performs duties of diplomatic nature.
despite not being part of the enumerated list on Vienna convention on diplomatic • It might be recalled that the privilege is not an
relations, is Scalzo immune from suit- Yes, he is immune from suit but on the immunity from the
basis of “State immunity from suit” he was acting as a representative of the state observance of the law of the territorial sovereign or
when he performs his duty as agent, hence he cannot be sued. The court also from ensuing legal
discussed about who grants the immunity, the nature of international immunities, liability; it is, rather, an immunity from the exercise
and the need of consent of the receiving state as to the grant of immunity. of territorial
jurisdiction
• The Convention lists the classes of heads of
diplomatic missions to
52
 include
a. ambassadors or nuncios accredited to the heads
of state
b. envoys, ministers or internuncios accredited to
the heads of
states
c. charges d' affairs accredited to the ministers of
foreign affairs.
Petitioner, Republic of Indonesia, entered into a Maintenance The mere entering into a contract by a foreign State
Agreement in August 1995 with respondent James Vinzon, sole proprietor of with a
Vinzon Trade and Services. Indonesia later on terminated the MoA with private party cannot be construed as the ultimate
Vinzon. Respondent Vinzon then filed a complaint against Petitioners test of whether or not it is an
Indonesia. Indonesia filed a motion to dismiss, claiming it has sovereign act jure imperii or jure gestionis. Hence, the
immunity from suits. Respondent Vinzon claims that Indonesia waived its existence alone of a paragraph in a
immunity from suit from a provision in the MoA. contract stating that any legal action arising out of
Indonesia v. Vinzon Issue: W/N Indonesia waived its immunity from suit. No. the agreement shall be settled
There is no dispute that the establishment of a diplomatic mission is an act jure according to the laws of the Philippines and by a
imperii (public act). It is therefore clear that petitioner Republic of Indonesia specified court of the
was acting in pursuit of a sovereign activity when it entered into a contract with Philippines is not necessarily a waiver of sovereign
respondent for the upkeep or maintenance of the air conditioning units, immunity from suit. The
generator sets, electrical facilities, water heaters, and water motor pumps of the aforesaid provision contains language not
Indonesian Embassy and the official residence of the Indonesian ambassador. necessarily inconsistent with
sovereign immunity.
L/CPL Daniel Smith was accused of raping Suzette Nicolas. The rule in international law is that foreign armed
During the trial his custody was transferred to the US Embassy pursuant to the forces allowed
Kenney-Romulo Agreements of Dec. 19 and 22, 2006. The Agreements were to enter one’s territory is immune from local
supposedly pursuant to the VFA. L/CPL was then convicted of rape and was jurisdiction, except to the extent
continually detained in the US Embassy. Nicolas questioned the transfer of agreed upon. The Status of Froces Agreements
custody by assailing the constitutionality of the VFA agreement, specifically involving foreign military units
citing Art.V Sec. 10 as being violative of the Supreme Court’s exclusive power around the world vary in terms and conditions,
to adopt rules of procedure for all courts in the Philippines. The issue is WoN the according to the situation of the
transfer of L/CPL Daniel Smith was violative of the Supreme Court’s exclusive parties involved, and reflect their bargaining
power to adopt rules of procedure for all courts in the Philippines. The Supreme power.
Court held NO, under international law, foreign armed forces allowed to enter Note: The case was 70 pages long - including the
one’s territory is immune from local jurisdiction, except to the extent agreed dissenting opinions (none of
upon. The receiving State can exercise jurisdiction over the forces of the sending which talked about immunity) - but the majority of
State only to the extent agreed upon by the parties. The situation involved is not the case talked about the
one in which the power of the Supreme Court to adopt rules of procedure is constitutionality of the VFA in the context of Senate
curtailed or violated, but rather one in which, as is normally encountered around concurrence as well as the
Nicolas v. Romulo the world, the laws (including rules) of one State do not extend or apply to the US’ obligation under the VFA, how it’s binding
subjects of another State due to the recognition of extraterritorial immunity given etc. Only a limited portion of
to such bodies as visiting foreign armed forces. Nothing in the Constitution the case discussed immunity.
prohibits recognition of immunity from jurisdiction or some aspects of
jurisdiction (such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomates and members of the armed forces
contingents of a foreign State allowed to enter another State’s territory. On the
contrary, the Constitution states that the Philippines adopts the generally
accepted principles of international law as part of the law of the land.
However, applying the provisions of VFA, the Supreme Court found that there is
a different treatment when it comes to detention as against custody. The moment
the accused has to be detained e.g. after conviction, Art. V Sec. 10 of the VFA
provides that: “The confinement or detention by the Philippine authorities of the
US personnel shall be carried out in facilities agreed by appropriate Philippines
and US authorities. US personnel serving sentences in the Philippines shall have
the rights to visits and material assistance.” It is clear that the VFA recognized
the difference between custody during trial and detention after conviction. The
53
 specific arrangement clearly states not only that the detention shall be carried out
in facilities agreed on by authorities of both parties, but also that the detention
shall be “by Philippine authorities.” Therefore, the Romulo-Kenney Agreements
which are agreements on the detention of L/CPL Daniel Smith in the US
Embassy are not in accordance with the VFA.
The Philippine government, through then Foreign Affairs In Public International Law, when a state or
Secretary Domingo Siazon, and the German government, agreed to an international
Arrangement in furtherance of the 1971 Agreement. This Arrangement affirmed agency wishes to plead sovereign or diplomatic
the common commitment of both governments to promote jointly a project immunity in a foreign court,
called, Social Health Insurance—Networking and Empowerment (SHINE), it requests the Foreign Office of the state where it is
which was designed to "enable Philippine families–especially poor ones–to sued to convey to the
maintain their health and secure health care of sustainable quality." The court that said defendant is entitled to immunity.
Philippines named the Department of Health (DOH) and the Philippine Health In the Philippines, the
Insurance Corporation (Philhealth) as its respective implementing organizations practice is for the foreign government or the
for SHINE while the German government - the Deustche Gesellschaft fü r international organization to
Technische Zusammenarbeit (GTZ) GmbH, Eschborn, with the implementation first secure an executive endorsement of its claim of
of its contributions." Private respondents were engaged as contract employees sovereign or diplomatic
hired by GTZ to work for SHINE on various dates between December of 1998 to immunity
September of 1999. However, when Nicolay assumed the post of SHINE Project
Manager, Disagreements eventually arose between Nicolay and private
respondents in matters such as proposed salary adjustments, and the course
Nicolay was taking in the implementation of SHINE different from her
predecessors. Negotiations through letters ensued but lead to the dismissal of the
DEUTSCHE v. CA
private respondents. The private respondents filed a complaint for illegal
dismissal with the NLRC GTZ, through counsel, filed a Motion to Dismiss, on
the ground that the Labor Arbiter had no jurisdiction over the case, as its acts
were undertaken in the discharge of the governmental functions and sovereign
acts of the Government of the Federal Republic of Germany. The issue in this
case is WoN the complaint for illegal dismissal should have been dismissed
for lack of jurisdiction on account of GTZ’s insistence that it enjoys
immunity from suit. The SC ruled in the negative because GTZ consistently
has been unable to establish with satisfaction that it enjoys the immunity
from suit generally enjoyed by its parent country, the Federal Republic of
Germany. The requirement to secure from the Department of Foreign Affairs "a
certification of respondents’ diplomatic status and entitlement to diplomatic
privileges including immunity from suits” might not necessarily be imperative.
However, had GTZ obtained such certification from the DFA, it would have
provided factual basis for its claim of immunity that would, at the very least,
establish a disputable evidentiary presumption that the foreign party is indeed
immune which the opposing party will have to overcome with its own factual
evidence.
Jose Magnayi was an employee of the ADB who claimed that he was The Asian Development Bank, being an
illegally dismissed and that ADB violated municipal labor laws. He filed a complaint international organization
with the Labor Arbiter who then sent summons to the ADB and the DFA. The ADB that has been extended a diplomatic status, is
notified the Labor Arbiter of its diplomatic immunity as an international organization. independent of the municipal law, based
Magnayi argued that by entering into service contracts with different private parties, on its Charter and the Headquarter's agreement. Its
ADB has descended to the level of an ordinary party to a commercial transaction service contracts with its
giving rise to a waiver of its immunity from suit. The Labor Arbiter ruled in favor of employees are acts jure imperii or sovereign acts
DFA v. NLRC Magnayi as a regular employee and ordered reinstatement. ADB did not appeal and that are covered under their
the DFA referred the decision to the NLRC which did not overturn the decision of the diplomatic immunity. The petition of DFA on behalf
Labor Arbiter. The DFA brought the matter to the SC. The issues before the court of the ADB is an affirmation of
were the proper invocation of diplomatic immunity by ADB, and the propriety of the government's own recognition of ADB's
DFA acting on ADB's behalf. The SC granted the petition of the DFA on the clear immunity.
stipulations of the Charter and Headquarters Agreement of the ADB. The SC cited
the Holy See case which distinguished public acts or acts jure imperii, which have
sovereign immunity, from private acts or acts gestionis, which are not covered by
54
 such immunity. Magnayi is then mistaken, as the service contracts he is referring to
have not been intended by the ADB for profit or gain but are official acts over which
a waiver of immunity would not attach. Therefore they are acts jure imperii. That
Court also recognized that the DFA makes the determination of persons and
institutions covered by diplomatic immunities. The DFA then, must be allowed to
plead its case before the courts whenever necessary or advisable to enable it to help
keep the credibility of the Philippine government before the international
community. When international agreements are concluded, the parties thereto are
deemed to have likewise accepted the responsibility of seeing to it that their
agreements are duly regarded.
Petitioners, Lasco et. al., were dismissed from their employment Immunity is necessary to assure unimpeded
with private respondent, the United Nations Revolving Fund for Natural performance of their
Resources Exploration (UNRFNRE), which is a special fund and subsidiary functions. The purpose is "to shield the affairs of
organ of the United Nations. The UNRFNRE is involved in a joint project of the international organizations, in
Philippine Government and the United Nations for exploration work in Dinagat accordance with international practice, from
Island. Lasco, et. al., are the complainants for illegal dismissal and damages. political pressure or control by the
UNRFNRE alleged that respondent Labor Arbiter had no jurisdiction over its host country to the prejudice of member States of
personality since it enjoyed diplomatic immunity. The issue in this case is the organization, and to ensure
whether or not specialized agencies such as the UNRFNRE enjoy diplomatic the unhampered performance of their functions.”
immunity. The court rules yes. In this case, UNRFNRE is not engaged in a It is a recognized principle of international law and
commercial venture in the Philippines. Its presence is by virtue of a joint project under our system of
LASCO v. UNITED NATIONS entered into by the Philippine Government and theUnited Nations for mineral separation of powers that diplomatic immunity is
exploration in Dinagat Island. Furthermore, the diplomatic immunity of private essentially a political question
respondent was sufficiently established by the letter of the Department of and courts should refuse to look beyond a
Foreign Affairs, recognizing and confirming the immunity of UNRFNRE in determination by the executive branch
accordance with the 1946 Convention on Privileges and Immunities of the of the government, and where the plea of
United Nations where the Philippine Government was a party. The issue whether diplomatic immunity is recognized and
an international organization is entitled to diplomatic immunity is a "political affirmed by the executive branch of the government
question" and such determination by the executive branch is conclusive on the as in the case at bar, it is
courts and quasi-judicial agencies. then the duty of the courts to accept the claim of
immunity upon appropriate
suggestion by the principal law officer of the
government
Dr. Leonce Verstuyft was assigned by WHO to its regional office 1. Diplomatic immunity may be recognized under
in Manila as Acting Assistant Director of Health Services. His personal effects, Host
contained in 12 crates, were allowed free entry from duties Agreements.
and taxes. Constabulary Offshore Action Center (COSAC) suspected that the 2. Declarations of the Executive branch upon the
crates “contain large quantities of highly dutiable goods” beyond the official status of a person in relation to
needs of Verstuyft. Upon application of the COSAC officers, Judge Aquino his diplomatic immunity may not be assailed or
issued a search warrant for the search and seizure of the personal effects ignored by the other branches of
of Verstuyft. government. This is based on the principle that
Secretary of Foreign Affairs Carlos P. Romulo advised Judge Aquino that Dr. determination of diplomatic
Verstuyft is entitled to immunity from search in respect for his personal baggage immunity is a political question, and is supported
as accorded to members of diplomatic missions pursuant to the Host Agreement by the separation of powers of
WHO v. AQUINO and requested that the search warrant be suspended. The Solicitor General the branches of government.
accordingly joined Verstuyft for the quashal of the search warrant but
respondent judge nevertheless summarily denied the quashal. Verstuyft, thus,
filed a petition for certiorari and prohibition with the SC. WHO joined Verstuyft
in asserting diplomatic immunity.
The issue is WoN Dr. Verstuyft enjoys diplomatic immunity.
The SC held that yes, he does enjoy diplomatic immunity. The Executive branch
expressly, through the Solicitor General as the principal law officer, recognized
Dr. Verstuyft’s diplomatic immunity and this may not be assailed or ignored by
the Judiciary. This is because diplomatic immunity is a political question and
may only be recognized and affirmed by the Executive branch. Therefore, Judge
Aquino’s continuation of the search and seizure procedure was beyond his
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 jurisdiction. The search and seizure warrant is quashed.
The ICMC is an international organization rendering voluntary and The raison d'etre for the immunities is the
humanitarian services in the Philippines which is supposed to take charge of the assurance of unimpeded
refugee center for the Southern Vietnamese in Bataan. The Trade Unions of the performance of their functions by the agencies
Philipppines and Allied Services (TUPAS) filed with the Ministry of Labor & concerned. The grant of immunity
Employment a Petition for Certification Election among the rank and file members from local jurisdiction to ICMC and IRRI is clearly
employed by the ICMC. This was opposed by ICMC as it believes it enjoys necessitated by their
diplomatic immunity. The Bureau of Labor Relations Director Calleja reversed the international character and respective purposes.
decision of the Med-Arbiter and granted TUPAS’ petition. Hence, the case was The objective is to avoid the danger
raised to the SC of partiality and interference by the host country in
Another case was filed before the SC posing a similar issue. The Philippine their internal workings.
Government and the Ford and Rockefeller Foundations signed a Memorandum of
Understanding establishing the International Rice Research Institute (IRRI) at Los
Banos, Laguna. The IRRI was organized and registered with the SEC as a private
corporation but PD 1620 granted it the status of an international organization. The
Organized Labor Association in Line Industries and Agriculture (OLALIA), is a
ICMC v. CALLEJA
legitimate labor organization with an existing local union, the Kapisanan ng
Manggagawa at TAC sa IRRI (Kapisanan, for short) in respondent IRRI The
Kapisanan filed a Petition for Direct Certification Election with Region IV, Regional
Office of the Department of Labor and Employment (DOLE). IRRI opposed the
petition citing PD 1620. Director Calleja also granted its petition, and the matter was
raised to the SC.
ISSUE: WoN the grant of diplomatic privileges and ummunities to ICMC extends to
immunity from the application of Philippine labor laws – YES… [see doctrine]
ISSUE: WoN the Secretary of Labor committed grave abuse of discretion in dismissing
the Petition for Certification Election filed by Kapisanan – NO… [see doctrine]
The exercise of jurisdiction by the Department of Labor in these instances would
defeat the very purpose of immunity, which is to shield the affairs of international
organizations, in accordance with international practice, from political pressure or
control by the host country to the prejudice of member States of the organization,
and to ensure the unhampered performance of their functions.
Liang is an economist working with ADB. He allegedly uttered The immunity cannot cover the commission of a
defamatory words against fellow ADB worker. He was charged before MeTC with crime such as
two counts of oral defamation. He was then arrested but he was subsequently slander or oral defamation in the name of official
released to custody of ADB Security Officer after posting bail. The following day, duty.
MeTC judge received an office of protocol from DFA stating that Liang is covered
by immunity from legal process per agreement between ADB and Philippine
Government. MeTC without notice to prosecution dismissed the two criminal cases.
RTC reversed the MeTC ruling and ordered MeTC to enforce the warrant of arrest.
Liang now argues before the SC that he is covered by immunity under the
Liang v. People
agreement.
The issue is WoN Liang can be held liable for alleged offense despite alleged
immunity. Yes. Under the Vienna Convention on Diplomatic Relations, a diplomatic
agent, assuming Liang is such, enjoys immunity from criminal jurisdiction of the
receiving state except in the case of an action relating to any professional or
commercial activity exercised by the diplomatic agent in the receiving state outside
his official functions. Slandering a person could not possibly be covered by the
immunity agreement because our laws do not allow the commission of a crime, such
as defamation, in the name of official duty.
Lacierda et al. are employees of SEAFDEC, an international agency that is Being an action against SEAFDEC, an international
immune from suits because it was clothed with diplomatic immunity and enjoys agency immune from suit,
functional independence and freedom from control of the state in whose Lacierda et al’s case cannot prosper.
SPS. Lacierda
territory its office is located. Meanwhile, respondents Platon et al. are officers
and working with the management of SEAFDEC, ACQ.
Sometime in 2000, JICA and SEAFDEC entered into a MOA whereby the
former considered the Department of Agriculture as qualified in providing the
56
necessary services in implementing JICA’s training program.
Lacierda et. al were selected by SEAFDEC to take part in JICA’s training
program. Since the program required them to go to different places, they were
given a cash advance, which is subject to liquidation (that is, they have to
provide receipts for all their expenses, and any excess will be given back to
JICA). Upon the conclusion of the training program, Lacierda, et al. submitted
to SEAFDEC documents in support of their liquidation of cash advances and
claim for reimbursement of expenses. However, an audit of the same showed
that the “hotel receipts submitted were much higher that the actual amount that
they paid on accommodation.” Thus, Lacierda, et al. were terminated for
misrepresentation or false statements with intent to gain or take advantage and
fraudulent machination for financial gain.
More than a year later, Lacierda, et al. filed a complaint against Platon, et al.
They claim that the immunity of suit of SEAFDEC is irrelevant since they
(Lacierda et al) are suing Platon et al. in their individual and personal capacities
for their commission of malicious, oppressive and inequitable actionable acts.
They also prayed to be restored and returned to their respective work/positions
in SEAFDEC; to be given the salaries, benefits and other privileges; to be
awarded actual damages by reason of the deprivation of the salaries
and benefits they should have received; and to be paid moral damages.
The complaint was dismissed by the RTC Iloilo for want of jurisdiction over the
subject matter and also for lack of jurisdiction over the person of Platon, et al.
ISSUE: WoN the suit is one against Platon et. al—NO, THE SUIT IS REALLY
ONE AGAINST SEAFDEC BECAUSE THE RELIEF SOUGHT FOR
CANNOT BE GRANTED BY PLATON ET AL IN THEIR PERSONAL
CAPACITIES. RULING: A perusal of the complaint would show that nothing
in the averments would indicate that Platon et al. acted in their personal
capacities or beyond the scope of their official functions. Lacierda et al. merely
made general allegations to that effect. In reality, their allegations pertain to acts
performed by Platon et al in their official capacity; acts which could not have
been done had they acted in their personal capacities. At most it is mere lapses
in investigation but still their actions were work related and within the scope of
their functions as officials of SEAFDEC. As such, the suit against them is, in
reality, a suit directed against SEAFDEC. The reliefs sought for by the Lacierda
et al is directed at the SEAFDEC and not to the defendants who cannot perform
the same in their personal capacity.

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