Kurado vs Jalandoni

Doctrine of Incorporation
KURADO VS JALANDONI
Facts:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in The Philippines during Second World War. He was
charged before a military commission convened by the Chief of Staff of the Armed forces of the
Philippines with having unlawfully disregarded and failed to discharge his duties as such command,
permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and
prisoners of the Imperial Japanese Forces in violation of the laws and customs of war”. The said
military commission was empaneled under the authority of Executive Order 68 of the President of the
Philippines.

Kuroda challenged the validity of Executive Order 68. His arguments, were as follows:
(1) Executive Order 68 is illegal on the ground that it violates not only the provisions of our
constitutional law but also our local laws.
(2) Military Commission has no Jurisdiction to try him for acts committed in violation of the Hague
Convention and the Geneva Convention because the Philippines is not a signatory to the first and
signed the second only in 1947 and, therefore, he is charged with “crime” not based on law, national
or international
(3) Hussey and Port have no personality as prosecutors in this case because they are not qualified to
practice law in Philippines in accordance with our Rules of court and the appointment of said
attorneys as prosecutors is violative of our national sovereignty.

Issue/s:
Whether or not Executive Order 68 had violated the provisions of our constitutional law

Discussions:
The provision of Article 2 Sec 3 states that “The Philippines renounces war as an instrument of
national policy, adopts generally accepted principles of international law as part of the law of the land,
and adheres to the policy of peace, equality, justice freedom, cooperation and amity with all nations”.
Every State is, by reason of its membership in the family of nations, bound by the generally accepted
principles of international law, which are considered to be automatically part of its own laws.

Ruling/s:
No. Executive Order 68 has not violated the provision of our constitutional law. The tribunal has
jurisdiction to try Kuroda. This executive order is in accordance with Article 2 Sec 3, of Constitution. It
is in accordance with generally accepted principles of international law including the Hague
Convention and Geneva Convention, and other international jurisprudence established by the UN,
including the principle that all persons (military or civilian) guilty of plan, preparing, waging a war of
aggression and other offenses in violation of laws and customs of war.

The Philippines may not be a signatory to the 2 conventions at that time but the rules and regulations
of both are wholly based on the generally accepted principles of international law. They were
accepted even by the 2 belligerent nations (US and Japan)
Furthermore, the Phil. Military Commission is a special military tribunal and rules as to parties and
representation are not governed by the rules of court but the provision of this special law.

North Sea Continental Shelf Cases (Federal Republic of Germany v.

Denmark; Federal Republic of Germany v. Netherlands)
Brief Fact Summary. The view that customary rules of international law determined the boundaries
of areas located on the continental shelf between their countries and the Federal Republic of
Germany (D) was contended by Denmark (P) and the Netherlands (P).

Synopsis of Rule of Law. For a custom to become binding as international law, it must amount to a
settled practice and must be rendered obligatory by a rule requiring it.

Facts. That the boundaries between their respective areas of the continental shelf in the North Sea
and the area claimed by the Federal Republic of Germany (D), should be determined by the
application of the principle of equidistance as set forth in Article 6 of the Geneva Convention of 1958
on the Continental Shelf, which by January 1, 1969 had been ratified or acceded to by 39 states but
to which Germany was not a party, was the basis of Denmark’s (D) and the Netherland’s (P)
contention.
Because the use of the delimitation method was not merely a conventional obligation, but a rule that
was part of the corpus of general international law and like other rules of general or customary
international law, which was binding automatically on Germany (D), independent of any specific
assent, direct or indirect, given by Germany (D), Denmark (P) and the Netherland’s (P) contended
that Germany (D) was bound to accept the delimitation on an equidistance basis.

Issue. Must delimitation be the object of an equitable agreement between the states involved?

Held. Yes. Delimitation must be the object of an equitable agreement between the states involved. As
stipulated in Article 6 of the Geneva Convention, equidistance principle is not part of customary
international law. Article 6 makes the obligation to use the equidistance method a secondary one
which comes into play only when agreements between the parties are absent. Although the principle
of equidistance is not given a fundamental norm-creating character by Article 6, which is necessary to
the formation of a general rule of law.
In this case, after taking into consideration all relevant circumstances, the delimitation here is to be
excused by equitable agreement.

Dissent. (Lachs, J.) not only the states who are parties to the Convention on the Continental Shelf
have accepted the principles and rules enshrined in the Convention including the equidistance rule,
but by other states who that have subsequently followed it in agreements, or in their legislation, or
have acquiesced in it when faced with legislative acts of other affecting them. This can be seen as
evidence of a practice widespread enough to satisfy the criteria for a general rule of law.

Discussion. The concept of opinion juris analyzed by the dissent is in consonance with the position
taken by some legal scholars who maintain that opinio juris may be presumed from uniformities of
practice regarding matters viewed normally as involving legal rights and obligations. A contrary
position maintains that the practice of states must be accompanied by or consist of statements that
something is law before it can become

ANGLO NORWEGIAN FISHERIES CASE (SUMMARY ON CUSTOMARY

INTERNATIONAL LAW)
International Court of Justice, Contentious Case: Anglo Norwegian Fisheries Case (UK vs
Norway)
Year of Decision: 1951.

The Court was asked to decide, amongst others, the validity, under international law, of the methods
used to delimit Norway’s territorial sea/ fisheries zone. We will not discuss the technical aspects of
the judgment relating to the delimitation, but focus on the Court’s conclusions relating to customary
international law.

Background to the case

The United Kingdom requested the court to decide if Norway had used a legally acceptable method
in drawing the baseline from which it measured its territorial sea. The United Kingdom argued that
customary international law did not allow the length of a baseline drawn across a bay to be longer
than ten miles. Norway argued that its delimitation method was consistent with general principles of
international law.

Findings of the Court

1. The formation of customary law

The Court referred to (1) positive State practice and (2) lack of contrary State practice as a
confirmation of an existing rule of customary international law (see p. 17 and 18). There was no
mention of opinio juris in this early judgment.

In the following passage, the Court considered expressed dissent by States regarding a particular
practice to be detrimental to the existence of an alleged general rule. Yet, the Court did not examine
further whether these States adopted a contrary practice because, for example, (1) they were
claiming an exception to the rule (see the Nicaragua jurisprudence) or (2) because they believed that
the said rule did not possess the character of customary law.

“In these circumstances the Court deems it necessary to point out that although the ten-mile rule has
been adopted by certain States both in their national law and in their treaties and conventions, and
although certain arbitral decisions have applied it as between these States, other States have
adopted a different limit. Consequently, the ten-mile rule has not acquired the authority of a general
rule of international law.”

1.1. The persistent objector

The Court in its judgment held that even if a customary law rule existed on the aforementioned ten-
mile rule,

“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always
opposed any attempt to apply it to the Norwegian coast.”

In this case, the Court appears to support the idea that an existing customary law rule would not
apply to a State if (1) it objected to the application of the rule to itself (2) at the initial stages and (3) in
a consistent manner. The Anglo Norwegian Fisheries Case, thus, supports the Asylum Case (Peru vs
Colombia) in articulating what we now call the persistent objector rule.
a. Initial objection

The Court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that, “in spite of
the adoption in some treaties of the quite arbitrary distance of 10 sea miles, this distance would not
appear to me to have acquired the force of international law. Still less would it appear to have any
foundation in reality…”

The Court held that “Language of this kind can only be construed as the considered expression of a
legal conception regarded by the Norwegian Government as compatible with international law”. Thus,
the Court held that Norway had refused to accept the rule as regards to it in 1870.

b. Sustained objection

The Court also went on to hold that Norway had followed the principles of delimitation that it
considered a part of its system in a consistent and uninterrupted manner from 1869 until the time of
the dispute.

In establishing consistent practice, the Court held that “…too much importance need not be attached
to the few uncertainties or contradictions, real or apparent, which the United Kingdom Government
claims to have discovered in Norwegian practice.”

c. No objection by other States

The Court held that the 10-mile rule did not form a part of the general law and, in any event, could not
bind Norway because of the latter’s objections. Next, the Court inquired whether the Norwegian
system of delimitation was nevertheless contrary to international law. To do so, the Court relied on
state practice once more.

“The general toleration of foreign States with regard to the Norwegian practice is an unchallenged
fact. For a period of more than sixty years the United Kingdom Government itself in no way contested
it… The Court notes that in respect of a situation which could only be strengthened with the passage
of time, the United Kingdom Government refrained from formulating reservations.”

1.2. Contrary State practice of Norway?

In this case, Norway adopted a contrary practice – a practice that was the subject of litigation.

However, interestingly, Norway was clear that it was not claiming an exception to the rule (i.e. that its
practice was not contrary to international law). It emphasized that its practice – even if it was a
deviation from the general practice – was in conformity with international law (see page 21).

“In its (Norway’s) view, these rules of international law take into account the diversity of facts and,
therefore, concede that the drawing of base-lines must be adapted to the special conditions obtaining
in different regions. In its view, the system of delimitation applied in 1935, a system characterized by
the use of straight lines, does not therefore infringe the general law; it is an adaptation rendered
necessary by local conditions. ”
The Court held that the fact that this consistent and sufficiently long practice took place without any
objection to the practice from other States (until the time of dispute) indicated that these States did
not consider the Norwegian system to be “contrary to international law”.

“The notoriety of the facts, the general toleration of the international community, Great Britain’s
position in the North Sea, her own interest in the question, and her prolonged abstention would in any
case warrant Norway’s enforcement of her system against the United Kingdom. The Court is thus led
to conclude that the method of straight lines, established in the Norwegian system, was imposed by
the peculiar geography of the Norwegian coast; that even before the dispute arose, this method had
been consolidated by a consistent and sufficiently long practice, in the face of which the attitude of
governments bears witness to the fact that they did not consider it to be contrary to international law.”

2. Relationship between international and national law

The Court alluded to the relationship between national and international law in delimitation of
maritime boundaries. In delimitation cases, States “must be allowed the latitude necessary in order to
be able to adapt its delimitation to practical needs and local requirements…” The Court would also
consider “…certain economic interests peculiar to a region, the reality and importance of which are
clearly evidenced by a long usage.” However, while the act of delimitation can be undertaken by the
State, its legal validity depends on international law.

“The delimitation of sea areas has always an international aspect; it cannot be dependent merely
upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of
delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake
it, the validity of the delimitation with regard to other States depends upon international law. (p. 20)”

Further reading:

T. Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in
International Law’, 26 Harvard International Law Journal, 1985, p. 457,

J. Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’, 56
BYIL, 1985, p. 1.

“In fact, the two international court of justice cases which appear to support the persistent objector
rule both arose in circumstances where the new rule itself was in substantial doubt. Thus, it was
significantly easier for the objector to maintain its status. No case is cited for a circumstance in which
the objector effectively maintained its status after the rule became well accepted in international law.
In fact, it is unlikely that such a status can be maintained din light of the realities of the international
legal system. This is certainly the plight that befell the US, The UK and Japan in the law of the sea.
Their objections to expanded coastal state jurisdiction were ultimately to no avail, and they have been
forced to accede to 12-mile territorial seas and the 200-mile exclusive economic zone. “

Curtis A. Bradley & Mitu Gulati, ‘Withdrawing from International Custom‘, see also pp. 236 – 239.

“The Fisheries Case, decided a year later, pitted the United Kingdom against Norway. At issue was
whether Norway had used a legally acceptable method in drawing the baseline from which it
measured its territorial sea. The United Kingdom argued that CIL did not allow the length of a
baseline drawn across a bay to be longer than ten miles. Again, as with the Asylum Case, the primary
holding of the case was that the alleged CIL rule did not exist. In the alternative, the court briefly
remarked that, had the rule existed, it would not have applied against Norway because Norway had
“always opposed any attempt to apply it to the Norwegian coast.”This language is often cited in
support of the persistent objector doctrine, but it could just as easily be read to support the Default
View of CIL, since there is nothing in this language that suggests that Norway’s opposition must have
occurred prior to the establishment of the alleged rule of CIL. The arguments of the parties do not
resolve this uncertainty: although the United Kingdom appears to have supported something like the
modern persistent objector doctrine, at least for rights historically exercised by a state (while asserting
that Norway had not met its requirements),Norway (which prevailed in the case) appears to have
supported something closer to the Default View.

The Asylum and Fisheries decisions provide no more than passing and ambiguous support for the
doctrine. State practice since those decisions is also relatively unhelpful, since there have been
essentially no instances in which states have invoked the doctrine. As Professor Stein reported in a
1985 article, his research had “failed to turn up any case where an author provided even one instance
of a state claiming or granting an exemption from a rule on the basis of the persistent objector
principle—excepting of course the Asylum and Fisheries cases themselves.”