84 REPUBLIC v.
SANDIGANBAYAN FACTS:
G.R. No. 104768 | July 21, 2003 | Carpio, J.
TOPIC: International Human Rights Law
SUMMARY:
On 3 March 1986, five days after the EDSA revolution, the Constabulary raiding team
served at Dimaano’s residence a search warrant captioned “Illegal Possession of
Firearms and Ammunition.” The raiding team seized the items detailed in the seizure
receipt together with other items not included in the search warrant. PCGG argues
that items seized are admissible in evidence since the revolutionary government
effectively withheld the operation of the 1973 Constitution which guaranteed private
respondents’ exclusionary right. This is in connection to the filing of the petition for
forfeiture by the PCGG against Major Gen. Ramas and Dimaano, following
investigation by it through the AFP Anti-Graft Board it constituted, and
recommendation by the latter to file the said petition.
SC held they are inadmissible. Although the Bill of Rights under the 1973 Constitution
was not operative during the interregnum, that is after the actual and effective
takeover of power by the revolutionary government following the cessation of
resistance by loyalist forces up to 24 March 1986 (immediately before the adoption of
the Provisional Constitution), the protection accorded to individuals under the
Covenant on Civil and Political Rights (“Covenant”) and the Universal Declaration of
Human Rights (“Declaration”) and the Declaration remained in effect during the
interregnum.
PROVISIONS APPLICABLE:
International Convention on Civil and Political Rights
● Art. 2(1) – to respect and ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in this Covenant
● Art. 17(1) - the revolutionary government had the duty to insure that “[n]o
one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence.”
Universal Declaration of Human Rights
● Art. 17(2) – no one shall be arbitrarily deprived of his property
DOCTRINE: See highlighted in yellow under issue #2.
● EO 1 created the Presidential Commission on Good Government (PCGG),
tasked with retrieving ill-gotten wealth from Marcos and affiliates. PCGG
then created the AFP Anti-Graft board which investigated Major General
Ramas. The findings are as follows:
○ Ramas’ SALN shows P100k of unexplained wealth. He has 2
properties in La Vista(worth P700k) and in Cebu City.
○ Ramas’ mistress is Elizabeth Dimaano who has no visible means of
income.
○ The Constabulary raiding team served at Dimaano’s residence a
search warrant captioned “Illegal Possession of Firearms and
Ammunition.” Dimaano was not present during the raid but
Dimaano’s cousins witnessed the raid. The raiding team seized the
items detailed in the seizure receipt together with other items not
included in the search warrant.
■ Dimaano has military equipment/items and
communication facilities from Ramas
● one baby armalite rifle with two magazines;
● 40 rounds of 5.56 ammunition;
● one pistol, caliber .45;
● communications equipment;
■ She also has 4 attache cases filled w/ money - P2.8 million
and $50k and jewelry and land titles
● The AFP Anti-Graft Board concludes that prima facie case exists against
respondent for ill-gotten and unexplained wealth. It recommended to
prosecute under RA 3019 “Anti-Graft and Corrupt Practices Act”, RA 1379
“Act for Forfeiture of Unlawfully Acquired Property”
● PCGG files petition for forfeiture against Major Gen. Ramas under RA 1379
and OSG files amended complaint, impleading Dimaano.
○ Complaint claims Ramas as the Commanding General of Phil Army,
while Dimaano a confidential agent, clerk-typist under Ramas
■ Both acquired funds out of proportion from their salary by
taking undue advantage of public office, authority as AFP
and close association w/ Marcos
○ Petitioner’s arguments:
■ That the raiding team conducted the search and seizure
“on March 3, 1986 or five days after the successful EDSA
revolution.
 ■ That a revolutionary government was operative at that
time by virtue of Proclamation No. 1 announcing that
President Aquino and Vice President Laurel were ”taking
power in the name and by the will of the Filipino people.”
■ That the revolutionary government effectively withheld
the operation of the 1973 Constitution which guaranteed
private respondents’ exclusionary right
■ That the exclusionary right arising from an illegal search
applies only beginning 2 February 1987, the date of
ratification of the 1987 Constitution;
■ That all rights under the Bill of Rights had already reverted
to its embryonic stage at the time of the search.
● Therefore, the government may confiscate the
monies and items taken from Dimaano and use
the same in evidence against her since at that
time of their seizure, private respondents did not
enjoy any constitutional right.
○ In their respective Answers:
■ Ramas claims La Vista was his only property, not out of
proportion w/ his salary, denies everything else
■ Dimaano claims sole ownership of equipment & money,
saying they are not from Ramas
● Sandiganbayan issues Resolution dismissing complaint, returning properties
to Dimaano. It remanded the case to the Ombudsman who has primary
jurisdiction of forfeiture cases under RA 1379.
ISSUES/HOLDING/RATIO:
1. W/N PCGG has jurisdiction to investigate private respondents - NO
● Sec. 2, EO 1 has specific rules on who they can investigate:
○ AFP personnel who have ill-gotten wealth during Marcos
administration, being the latter’s immediate family, relative,
subordinate or close associate, taking undue advantage of office,
powers, influence
○ AFP personnel involved in other graft cases provided the President
assign it to PCGG
● Applying ejusdem generis – specific enumerations are not to be constructed
in the widest extent
○ In this case, there is no showing that the President assigned to
PGCC, but PCGG insisted this case fell under the first criterion,
claiming that Ramas is a subordinate of Marcos
■ Republic v Migrino: subordinate ≠ having mere military
position. There must be prima facie showing that the
respondent unlawfully accumulated wealth by virtue of his
close association or relation w/ Marcoses. PCGG must
prove the following:
● Rama’s complicity w/ Marcos in accumulation of
ill-gotten wealth by Marcos
● Marcos’ acquiescence in Rama’s own
accumulation of ill-gotten wealth
■ However, AFP board does not show that wealth was
accumulated in his capacity as a subordinate of Marcos.
There was also no showing that Ramas had a close
relation.
● This omission is fatal because the relationship
w/ Marcos is what vests jurisdiction on PCGG.
● Cruz, Jr v Sandiganbayan: underlines cases in which PCGG has no
jurisdiction since there are vested in the Ombudsman and other duly
authorized agencies
○ Investigation of ill-gotten wealth, which does not fall under the
jurisdiction of PCGG, falls under Ombudsman (RA 6770)
○ Authority to file forfeiture petition falls under Solicitor General
2. [MAIN] W/N the properties confiscated from Dimaano’s house were illegally seized
and therefore inadmissible in evidence -- PARTLY
● SC holds there was a revolution government. During interregnum1,
directives and orders of the revolutionary government were supreme law
since there was no constitution limiting the extent and scope of such
directives and orders, but it is still bound by treaty obligations that the de
jure government assumed under international law.
○ However, the revolutionary government, after installing itself as the
de jure government, assumed responsibility for the State’s good
1
That is after the actual and effective takeover of power by the revolutionary government
following the cessation of resistance by loyalist forces up to 24 March 1986 (immediately before
the adoption of the Provisional Constitution). Start of Aquino administration signaled the point
where the legal system then in effect, had ceased to be obeyed by Filipinos
 faith compliance with the following to which the Philippines is a
signatory:
■ International Convention on Civil and Political Rights
● Art. 2(1) – to respect and ensure to all individuals
within its territory and subject to its jurisdiction
the rights recognized in this Covenant
● Art. 17(1) - the revolutionary government had the
duty to insure that “[n]o one shall be subjected to
arbitrary or unlawful interference with his privacy,
family, home or correspondence.”
■ Universal Declaration of Human Rights
● Art. 17(2) – no one shall be arbitrarily deprived of
his property
○ This is so because although the signatories to the above-
mentioned did not intend them as legally binding documents, the
Court has interpreted the above-mentioned as part of the
generally accepted principles of international law and binding on
the State.
■ The Court likewise considers the above-mentioned as
part of customary international law, and that Filipinos as
human beings are proper subjects of the rules of
international law laid down in them.
○ It is noteworthy to mention that the revolution govt did not
repudiate the Covenant or Declaration during the interregnum.
● Therefore w/ respect to seizures, warrants are valid only w/ respect to items
specifically described in such warrant pursuant to its obligations under
international law, unless these are contraband items per se.
○ In this case, the raiding team exceeded its authority when it seized
the items not provided for by the warrant, which was only for
weapons. The seizure of the items such as money, jewelry and land
titles not in the warrant was therefore void, and unless these items
are contraband per se, and they are not, they must be returned to
the person from whom the raiding seized them.
RULING: Petition is DISMISSED. The records are remanded to the Ombudsman for
appropriate action, and the case is referred to the Bureau of Internal Revenue for
determination of tax liability
Puno J. Separate Opinion
● Concurs with the result and agrees that the ’73 Bill of Rights was not
operative during said seizure
● Disagrees that thus Dimaano has lost and cannot invoke the right against
unreasonable search and seizure and the exclusionary right
● Views that under natural law, respondent maintains this right
● Principle of natural law = good is to be pursued and evil avoided
● Dimaano, regardless of political affiliation, despite there being no
constitution, has natural right to life, liberty and property which she can
exercise
Davide J. Separate Opinion
● The EDSA revolution had no radical changes in government structures.
There is an intention to preserve the provision of ’73 Consti on individual
rights
● W/r to human rights protection, international law sees individuals, being
members of the international community, as capable of invoking rights and
duties against the nation State
● There is nothing irregular w/ issuance of the warrant rather only in the
implementation
Tinga J, Separate Opinion
● Unanimity in of seizure of items not listed in the warrant = null
● Disagreement resides in the juridical basis for voiding the confiscation.
● Carpio – uses positivist approach, Puno –uses natural law doctrine
● No less than the Freedom constitution bestowed uninterrupted operability to
’73 Bill of Right – Proc 3 refers to “the protection of basic rights”, Art 1, Sec1
– Bill of Rights “remains in force and adopted in Provisional Consti”
Vitug, J., Separate Opinion
● Proclamation No. 3 is an acknowledgment by the Aquino government of the
continued existence, subject to its exclusions, of the 1973 Charter.
● The Bill of Rights (under the 1973 Constitution), during the interregnum from
26 February to 24 March 1986 remained in force and effect not only because
it was so recognized by the 1986 People Power but also because the new
government was bound by international law to respect the Universal
Declaration of Human Right.

[85] SECRETARY OF NATIONAL DEFENSE v. MANALO
G.R. No. 180906 | Oct. 7, 2008 | Puno, C.J.
TOPIC: Right to Security
SUMMARY: In 2006, brothers Raymond and Reynaldo Manalo were forcibly taken by
military men (CAFGU) based on suspicion that they were NPA members/supporters.
They were detained and tortured for 18 months. In 2007, they were able to escape.
Thereafter, they filed a petition for prohibition, injunction, TRO and when the Rule on
the Writ of Amparo took effect, they converted their petition to an amparo petition. CA
granted the writ of Amparo. SC affirmed CA. The writ of amparo must be granted
because there was a continuing violation of the Manalos’ right to security even after
they have escaped. This threat to security can be inferred from the fact that the
Manalos did not only implicate their abductors but also those of other desaparecidos
they met while in detention. There is also a violation of the right to security as
protection by the government since it was the government itself that was the
perpetrator. There was also a failure to conduct an effective investigation since the
AFP merely relied on the statements of the implicated CAFGU members.
DOCTRINE: Permutations of the exercise of the right to security: (1) freedom from
fear; (2) guarantee of bodily and psychological integrity or security; and (3) guarantee
of protection of one’s rights by the government.
FACTS
 In 2006, brothers Raymond and Reynaldo Manalo, farmers from San
Ildefonso, Bulacan were abducted by members of the Citizens Armed
Forces Geographical Unit (CAFGU) on suspicion that the brothers were
members or supporters of the New Peoples’ Army (NPA).
 The Manalo brothers were detained in various locations: in Fort Magsaysay,
Nueva Ecija; in Camp Tecson, San Miguel, Bulacan; in Camp Luna, Limay
Bataan; in a house somewhere in Zambales; in a farm in Pangasinan.
 They were also subjected to various forms of torture such as chained and
blind folded, beaten black and blue in different parts of the body, hit in the
stomach with a hard wood, slapped in the forehead by .45 pistol, punched in
the mouth, burned some parts of their bodies with a burning wood, made to
witness the killings of fellow captives; forced to take the pill “alive” which
caused them headaches, and threatened to be executed.
 While in captivity, they met other desaparecidos, including Manuel Merino
and missing UP students Karen Empeño and Sherlyn Cadapan.
 After having been detained and tortured for 18 months, the brothers were
able to escape from their captors and torturers in 2007. Thereafter, the
Manalo brothers filed a Petition for Prohibition, Injunction, and TRO to stop
the military from depriving them of their right to liberty and other basic rights.
 In his statement, Raymond identified Gen. Jovito Palparan and other AFP
officers as having been present or actively taken part in their abduction and
subsequent torture.
 While the petition was pending, the Rule on the Writ of Amparo took effect,
so the Manalo brothers filed a Manifestation and Omnibus Motion to Treat
Existing Petition as Amparo Petition.
 SC favorably granted their petition which was treated as an Amparo Petition.
SC remanded the Amparo petition to the CA and ordered the latter to
conduct a summary hearing thereon.
 CA granted the privilege of the Writ of Amparo to the Manalo brothers relying
on the brothers’ affidavits and testimonies and the medical reports and
testimony of a forensic expert on the scars left by the injuries inflicted on the
brothers. Hence, this petition.
ISSUE & RATIO
1. W/N there is a continuing violation of the respondents’ right to security –
YES
a. While respondents admit that they are no longer in detention and are
physically free, they assert that they are not "free in every sense of the
word" as their "movements continue to be restricted for fear that people
they have named in their Judicial Affidavits and testified against are still
at large and have not been held accountable in any way. These people
 are directly connected to the AFP and are in a position to threaten
respondents' rights to life, liberty and security.
b. Respondents pointed out that the “right to security, in general,” is often
associated with liberty, and is also seen as an “expansion of rights
based on the prohibition against torture and cruel and unusual
punishment. Although the right to security is not expressly mentioned in
the Constitution, they submit that their rights “to be kept free from torture
and from incommunicado detention and solitary detention places fall
under the general coverage of the right to security of person under writ
of Amparo.
c. The right to security or the right to security of person finds a
textual hook in Art. III, Sec. 2 of the Constitution: The right of the
people to be secure in their persons xxx shall be inviolable xxx.
i. At the core of this guarantee is the immunity of one's person,
including the extensions of his/her person – houses, papers,
and effects – against government intrusion. Sec. 2 not only
limits the state's power over a person's home and possessions,
but more importantly, protects the privacy and sanctity of the
person himself.
d. While the right to life under Art. III, Sec. 1 guarantees essentially
the right to be alive, upon which the enjoyment of all other rights is
preconditioned, the right to security of person is a guarantee of the
secure quality of this life.
i. The life to which each person has a right is not a life lived in
fear that his person and property may be unreasonably
violated by a powerful ruler. Rather, it is a life lived with the
assurance that the government he established and consented
to, will protect the security of his person and property.
e. A closer look at the right to security of person would yield various
permutations of the exercise of this right.
i. First, the right to security of person is "freedom from fear."
o In its "whereas" clauses, the Universal Declaration
of Human Rights (UDHR) enunciates that "a world in
which human beings shall enjoy freedom of speech
and belief and freedom from fear and want has been
proclaimed as the highest aspiration of the common
people."
o Art.3 of the UDHR provides that “everyone has the
right to life, liberty and security of person.”
o In furtherance of this right declared in the UDHR, Art.
9(1) of the International Covenant on Civil and
Political Rights (ICCPR) also provides for the right to
security of person: “everyone has the right to liberty
and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived
of his liberty except on such grounds and in
accordance with such procedure as are established
by law.”
o The Philippines is a signatory to both the UDHR
and the ICCPR.
o In the context of Sec. 1 of the Amparo Rule,
"freedom from fear" is the right and any threat to
the rights to life, liberty or security is the
actionable wrong. Fear is a state of mind, a reaction;
threat is a stimulus, a cause of action.
ii. Second, the right to security of person is a guarantee of
bodily and psychological integrity or security.
o Physical torture, force, and violence are a severe
invasion of bodily integrity. When employed to
vitiate the free will such as to force the victim to
admit, reveal or fabricate incriminating
information, it constitutes an invasion of both
bodily and psychological integrity as the dignity
of the human person includes the exercise of free
will.
o Art. III, Sec. 12 of the Constitution proscribes
bodily and psychological invasion: “no torture,
force, violence, threat or intimidation, or any other
means which vitiate the free will shall be used against
him (any person under investigation for the
commission of an offense). Secret detention places,
solitary, incommunicado or other similar forms of
detention are prohibited.”
 Threat and intimidation that vitiate the free
will, although not involving invasion of bodily
integrity, constitute a violation of the right to
security in the sense of "freedom from
threat."
o Art. III, Sec. 12 guarantees freedom from
dehumanizing abuses of persons under investigation
for the commission of an offense. Victims of enforced
disappearances who are not even under such
investigation should all the more be protected from
these degradations.
o U.N. Committee on the Elimination of
Discrimination against Women has also made a
statement that the protection of the bodily integrity
of women may also be related to the right to
security and liberty.
iii. Third, the right to security of a person is a guarantee of
protection of one’s rights by the government.
o It is the policy of state to guarantee full respect for
human rights under Art. II, Sec. 11 of the Constitution.
o As the government is the chief guarantor of order
and security, the Constitutional guarantee of the
rights to life, liberty and security of person is
rendered ineffective if government does not afford
protection to these rights especially when they
are under threat. Protection includes conducting
effective investigations, organization of the
government apparatus to extend protection to victims
 of extralegal killings or enforced disappearances (or ii. Second, on the violation of the right to security as protection by
threats thereof) and/or their families, and bringing the government:
offenders to the bar of justice. o Apart from the failure of military elements to provide
o While the right to security appears in conjunction with protection to respondents by themselves perpetrating
the right to liberty under Art. 9 of ICCPR, the UN the abduction, detention, and torture, they also
Human Rights Committee has ruled that the right to miserably failed in conducting an effective
security of person can exist independently of the investigation of respondents' abduction
right to liberty. o The investigation conducted was very limited,
o Similarly, the European Court of Human Rights superficial, and one-sided. It merely relied on the
(ECHR) has interpreted the “right to security” not Sworn Statements of the implicated CAFGU members
only as prohibiting the State from arbitrarily and civilians. No other witnesses were called to test
depriving liberty, but imposing a positive duty on the alibis given by the CAFGU members, nor were the
the state to afford protection of the right of liberty. family or neighbors of the respondents called. Also,
 In Kurt v. Turkey, ECHR ruled that Art. 5 of the Manalos have not been furnished with the results
European Convention of Human Rights of the “investigation.”
which provides for the right to security of
person must be seen as requiring the RULING: Petition is dismissed. CA decision is affirmed.
authorities to take effective measures to
safeguard against the risk of disappearance
and to conduct a prompt effective
investigation to an arguable claim that a
person has been taken into custody and has
not been seen since.
f. As applied in this case:
i. First, on the violation of the right to security as freedom from
threat to respondents’ life, liberty and security:
o Possibility of respondents being executed stared them
in the eye while they were in detention. With their
escape, this continuing threat to their life is apparent,
moreso now that they have surfaced and implicated
specific officers in the military not only in their own
abduction and torture, but also in those of other
persons known to have disappeared.
o Understandably, since their escape, respondents
have been under concealment and protection by
private citizens because of the threat to their life,
liberty and security. The threat vitiates their free will
as they are forced to limit their movements or
activities. Precisely because respondents are being
shielded from the perpetrators of their abduction, they
cannot be expected to show evidence of overt acts of
threat such as face-to-face intimidation or written
threats to their life, liberty and security.
o Nonetheless, the circumstances of respondents'
abduction, detention, torture and escape reasonably
support a conclusion that there is an apparent threat
that they will again be abducted, tortured, and this
time, even executed. These constitute threats to their
liberty, security, and life, actionable through a petition
for a writ of Amparo.
 TOPIC: International Human Rights
PROVISIONS APPLICABLE:
 UN Declaration on the Protection of All Persons from Enforced
Disappearances.

FACTS:
 This is a Writ of Amparo case following the disappearance of Engineer Morced
N. Tagitis (Tagitis), filed by his wife Mary Jean.
o 04 November 2007 - Tagitis, a consultant for the World Bank and Senior
Honorary Counselor of the IDB, was last seen in Jolo, Sulu.
o His disappearance was reported to the Jolo Police Station.
o 07 November 2007 - His student, who was with him that time, Arsimin
Kunnong executed a sworn affidavit attesting to what he knew of the
circumstances surrounding Tagitis’ disappearance.
o 28 December 2007 – Mary Jean filed a Petition for the Writ of Amparo
with the Court of Appeals against Gen. Razon, et. al. Among the facts
established in the petition were that:
 a couple of burly men believed to be police intelligence
operatives, forcibly took him and boarded the latter on a motor
vehicle then sped away.
 Efforts to locate him did not produce any positive results
except the information from persons in the military who do not
want to be identified that Engr. Tagitis is in the hands of the
uniformed men;”
 That Tagitis was being held against his will in an earnest
attempt of the police to involve and connect Tagitis with the
different terrorist groups;”
 That respondent has exhausted all administrative avenues and
remedies but to no avail, and under the circumstances, has no
other plain, speedy and adequate remedy to protect and get
the release of Tagitis from the illegal clutches of the
[petitioners], their intelligence operatives and the like which are
in total violation of the subject’s human and constitutional
rights, except the issuance of a WRIT OF AMPARO.
o The CA issued the Writ of Amparo on the same day.
 Petitioners, in their respective Verified Returns filed to the CA
claimed that all efforts were made in searching for Tagitis and
denied any alleged abduction or illegal detention of Tagitis.
 Petitioners sought the Writ of amparo filed against them be
dropped and dismissed considering they were exerting their
efforts in the conduct of its intelligence monitoring and
investigation.
o 7 March 2008 - CA issued its decision confirming that the
disappearance of Tagitis was an "enforced disappearance" under the
[86] Gen. Razon, Chief PNP; PCS Castanede, Chief CIDG; PSS Espina, Chief United Nations (UN) Declaration on the Protection of All Persons from
PACER; Gen. Goltiao, Regional Director of ARMM, PNP v. Mary Jean Tagitis Enforced Disappearances.
G.R No. 182498 | Feb 16 2010 | Brion
  The CA ruled that when military intelligence pinpointed the
investigative arm of the PNP (CIDG) to be involved in the
abduction, the missing-person case qualified as an enforced
disappearance.
 The conclusion that the CIDG was involved was based on the
respondent’s testimony, corroborated by her companion, Mrs.
Talbin. The CA noted that the information that the CIDG, as the
police intelligence arm, was involved in Tagitis’ abduction
came from no less than the military – an independent agency
of government.
 It also labeled as "suspect" Col. Kasim’s subsequent and
belated retraction of his statement that the military, the police,
or the CIDG was involved in the abduction of Tagitis.
o Hence, this petition.
ISSUES w/ HOLDING & RATIO
1. W/N the CA erred in extending the privilege of the Writ of Amparo to Tagitis? NO
 The disappearance of Engr. Morced Tagitis is classified as an enforced
disappearance, thus the privilege of the Writ of Amparo applies.
International Law
 From the International Law perspective, involuntary or enforced
disappearance is considered a flagrant violation of human rights. It does not
only violate the right to life, liberty and security of the desaparecido; it affects
their families as well through the denial of their right to information regarding
the circumstances of the disappeared family member.
 In 1992, in response to the reality that the insidious practice of enforced
disappearance had become a global phenomenon, the UN General
Assembly adopted the Declaration on the Protection of All Persons from
Enforced Disappearance (Declaration).
 Fourteen years after (or on December 20, 2006), the UN General Assembly
adopted the International Convention for the Protection of All Persons from
Enforced Disappearance (Convention).
o Article 2 of the Convention defined enforced disappearance as
follows:
o For the purposes of this Convention, "enforced disappearance" is
considered to be the arrest, detention, abduction or any other form
of deprivation of liberty by agents of the State or by persons or
groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge
the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person
outside the protection of the law.
o HOWEVER, to date (of the case) the Philippines is not a signatory
to the Convention. But, being a member of the UN, the Philippines
is bound by its Charter and the various conventions on human
rights, including the Declaration which the UN itself issued. These
fall under generally accepted principles of international law,
which form part of the land.
 This is in line with the right to security of persons.
o The right to security of person in this third sense is a corollary of the
policy that the State "guarantees full respect for human rights"
under Article II, Section 11 of the 1987 Constitution. As the
government is the chief guarantor of order and security, the
Constitutional guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not afford
protection to these rights especially when they are under threat.
Protection includes conducting effective investigations, organization
of the government apparatus to extend protection to victims of
extralegal killings or enforced disappearances (or threats thereof)
and/or their families, and bringing offenders to the bar of justice.
 Under the UN Declaration enforced disappearance as "the arrest, detention,
abduction or any other form of deprivation of liberty by agents of the State or
by persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the
deprivation of liberty or by concealment of the fate or whereabouts of the
disappeared person, which place such a person outside the protection of the
law." Under this definition, the elements that constitute enforced
disappearance are essentially fourfold:
o (a) arrest, detention, abduction or any form of deprivation of liberty;
o (b) carried out by agents of the State or persons or groups of
persons acting with the authorization, support or acquiescence of
the State;
o (c) followed by a refusal to acknowledge the detention, or a
concealment of the fate of the disappeared person;
o (d) placement of the disappeared person outside the protection of
the law.
 A petition for the Writ of Amparo shall be signed and verified and shall
allege, among others (in terms of the portions the petitioners cite):
 (c) The right to life, liberty and security of the aggrieved party violated
or threatened with violation by an unlawful act or omission of the
respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;
 (d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or
individuals, as well as the manner and conduct of the investigation,
together with any report;
 (e) The actions and recourses taken by the petitioner to determine the
fate or whereabouts of the aggrieved party and the identity of the
person responsible for the threat, act or omission.
 Based on these considerations, we conclude that Col. Kasim’s disclosure,
made in an unguarded moment, unequivocally point to some government
 complicity in the disappearance. The consistent but unfounded denials and
the haphazard investigations cannot but point to this conclusion. For why
would the government and its officials engage in their chorus of concealment
if the intent had not been to deny what they already knew of the
disappearance? Would not an in-depth and thorough investigation that at
least credibly determined the fate of Tagitis be a feather in the government’s
cap under the circumstances of the disappearance? From this perspective,
the evidence and developments, particularly the Kasim evidence, already
establish a concrete case of enforced disappearance that the Amparo Rule
covers. From the prism of the UN Declaration, heretofore cited and
quoted,173 the evidence at hand and the developments in this case confirm
the fact of the enforced disappearance and government complicity, under a
background of consistent and unfounded government denials and
haphazard handling. The disappearance as well effectively placed Tagitis
outside the protection of the law – a situation that will subsist unless this
Court acts.
RULING:
WHEREFORE, premises considered, we DENY the petitioners’ petition for review on
certiorari for lack of merit, and AFFIRM the decision of the Court of Appeals dated
March 7, 2008 under the following terms:
a. Recognition that the disappearance of Engineer Morced N. Tagitis is an enforced
disappearance covered by the Rule on the Writ of Amparo;
petitioners and the respondent, with the first report due at the end of the first quarter
counted from the finality of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake their
investigations; the Court of Appeals shall submit its full report for the consideration of
this Court at the end of the 4th quarter counted from the finality of this Decision;
These directives and those of the Court of Appeals’ made pursuant to this Decision
shall be given to, and shall be directly enforceable against, whoever may be the
incumbent Chiefs of the Philippine National Police and its Criminal Investigation and
Detection Group, under pain of contempt from this Court when the initiatives and
efforts at disclosure and investigation constitute less than the extraordinary diligence
that the Rule on the Writ of Amparo and the circumstances of this case demand.
Given the unique nature of Amparo cases and their varying attendant circumstances,
these directives – particularly, the referral back to and monitoring by the CA – are
specific to this case and are not standard remedies that can be applied to every
Amparo situation.
The dismissal of the Amparo petition with respect to General Alexander Yano,
Commanding General, Philippine Army, and General Ruben Rafael, Chief, Anti-
Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED.
SO ORDERED.

b. Without any specific pronouncement on exact authorship and responsibility,

declaring the government (through the PNP and the PNP-CIDG) and Colonel
Julasirim Ahadin Kasim accountable for the enforced disappearance of Engineer
Morced N. Tagitis;

c. Confirmation of the validity of the Writ of Amparo the Court of Appeals issued;

d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its Chief,
directly responsible for the disclosure of material facts known to the government and
to their offices regarding the disappearance of Engineer Morced N. Tagitis, and for
the conduct of proper investigations using extraordinary diligence, with the obligation
to show investigation results acceptable to this Court;

e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding him
accountable with the obligation to disclose information known to him and to his
"assets" in relation with the enforced disappearance of Engineer Morced N. Tagitis;

f. Referring this case back to the Court of Appeals for appropriate proceedings
directed at the monitoring of the PNP and PNP-CIDG investigations, actions and the
validation of their results; the PNP and the PNP-CIDG shall initially present to the
Court of Appeals a plan of action for further investigation, periodically reporting their
results to the Court of Appeals for consideration and action;

g. Requiring the Court of Appeals to submit to this Court a quarterly report with its
recommendations, copy furnished the incumbent PNP and PNP-CIDG Chiefs as
[87] ANG LADLAD LGBT PARTY v. COMMISSION ON ELECTIONS
G.R. No. 190582 | April 08, 2010| Del Castillo, J.

TOPIC: Basic Principles of International Human Rights (IHR)

SUMMARY
Petitioner is a national organization which represents lesbians, gays, bisexuals, and
trans-genders. It filed a petition for accreditation as a party-list organization to public
respondent. However, due to moral grounds, the latter denied the said petition. To
buttress their denial, COMELEC cited certain biblical and quranic passages in their
decision. It also stated that since their ways are immoral and contrary to public policy,
they are considered nuisance. In fact, their acts are even punishable under Art. 201,
RPC. A motion for reconsideration being denied, Petitioner filed this instant Petition
on Certiorari under Rule 65, ROC. Ang Ladlad argued that the denial of accreditation,
insofar as it justified the exclusion by using religious dogma, violated the
constitutional guarantees against the establishment of religion. Petitioner also claimed
that the Assailed Resolutions contravened its constitutional rights to privacy, freedom
of speech and assembly, and equal protection of laws, as well as constituted
violations of the Philippines’ international obligations against discrimination based on
sexual orientation. In its Comment, the COMELEC reiterated that petitioner does not
have a concrete and genuine national political agenda to benefit the nation and that
the petition was validly dismissed on moral grounds. It also argued for the first time
that the LGBT sector is not among the sectors enumerated by the Constitution and
RA 7941, and that petitioner made untruthful statements in its petition when it alleged
its national existence contrary to actual verification reports by COMELEC’s field
personnel. SC held that COMELEC erred in denying Ang Ladlad Partylist’s petition for
registration.

DOCTRINE
The principle of non-discrimination is laid out in Art. 26 of the ICCPR: All persons are
equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination on any
ground such as race, color, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.

In this context, the principle of non-discrimination requires that laws of general

application relating to elections be applied equally to all persons, regardless of sexual
orientation. Although sexual orientation is not specifically enumerated as a status or
ratio for discrimination in Art. 26 of the ICCPR, the ICCPR Human Rights Committee
has opined that the reference to "sex" in Article 26 should be construed to include
"sexual orientation." Additionally, a variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be prohibited under various
international agreements.
FACTS
● Ang Ladlad is an organization composed of men and women who identify
themselves as lesbians, gays, bisexuals, or trans-gendered individuals
(LGBTs).
● Before the COMELEC, petitioner argued that the LGBT community is a
marginalized and under-represented sector that is particularly disadvantaged
because of their sexual orientation and gender identity; that LGBTs are
victims of exclusion, discrimination, and violence; that because of negative
societal attitudes, LGBTs are constrained to hide their sexual orientation;
and that Ang Ladlad complied with the 8-point guidelines enunciated by this
Court in Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections. Ang Ladlad laid out its national membership base consisting of
individual members and organizational supporters, and outlined its platform
of governance.
o November 11, 2009: After admitting the petitioner’s evidence, the
COMELEC (Second Division) dismissed the Petition on moral
grounds, stating that:
▪ This Petition is dismissible on moral grounds. Petitioner
defines the Filipino Lesbian, Gay, Bisexual and
Transgender (LGBT) Community, thus:
▪ x x x a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual
orientation and gender identity.
● ANG LADLAD collides with Art. 695 of the Civil Code which defines
nuisance as ‘Any act, omission, establishment, business, condition of
property, or anything else which (3) shocks, defies; or disregards decency or
morality.
o It also collides with Art. 1306 of the Civil Code: ‘The contracting
parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided they are not
contrary to law, morals, good customs, public order or public policy.
Art 1409 of the Civil Code provides that ‘Contracts whose cause,
object or purpose is contrary to law, morals, good customs, public
order or public policy’ are inexistent and void from the beginning.
o Finally, to safeguard the morality of the Filipino community, the
Revised Penal Code, as amended, penalizes ‘Immoral doctrines,
obscene publications and exhibitions and indecent shows’.
Procedural History
● January 4, 2010: Ang Ladlad filed this Petition, praying that the Court annul
the Assailed Resolutions and direct the COMELEC to grant Ang Ladlad’s
application for accreditation. Ang Ladlad also sought the issuance ex parte
of a preliminary mandatory injunction against the COMELEC, which had
previously announced that it would begin printing the final ballots for the May
2010 elections by January 25, 2010.
● January 6, 2010: The Court ordered the Office of the Solicitor General
(OSG) to file its Comment on behalf of COMELEC not later than 12:00 noon
of January 11, 2010.
o Instead of filing a Comment, however, the OSG filed a Motion for
Extension, requesting that it be given until January 16, 2010 to
Comment. Somewhat surprisingly, the OSG later filed a Comment
in support of petitioner’s application. Thus, in order to give
COMELEC the opportunity to fully ventilate its position, the Court
required it to file its own comment. The COMELEC, through its Law
Department, filed its Comment on February 2, 2010.
o In the meantime, due to the urgency of the petition, the Court
issued a temporary restraining order on January 12, 2010, effective
immediately and continuing until further orders from this Court,
directing the COMELEC to cease and desist from implementing the
Assailed Resolutions.
● January 13, 2010: The Commission on Human Rights (CHR) filed a Motion
to Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-
in-Intervention.
o The CHR opined that the denial of Ang Ladlad’s petition on moral
grounds violated the standards and principles of the Constitution,
the Universal Declaration of Human Rights (UDHR), and the
International Covenant on Civil and Political Rights (ICCPR). On
January 19, 2010, we granted the CHR’s motion to intervene.
● Ang Ladlad argued that the denial of accreditation, insofar as it justified the
exclusion by using religious dogma, violated the constitutional guarantees
against the establishment of religion. Petitioner also claimed that the
Assailed Resolutions contravened its constitutional rights to privacy, freedom
of speech and assembly, and equal protection of laws, as well as constituted
violations of the Philippines’ international obligations against discrimination
based on sexual orientation.
o The OSG concurred with Ang Ladlad’s petition and argued that the
COMELEC erred in denying petitioner’s application for registration
since there was no basis for COMELEC’s allegations of immorality.
It also opined that LGBTs have their own special interests and
concerns which should have been recognized by the COMELEC as
a separate classification.
o However, insofar as the purported violations of petitioner’s freedom
of speech, expression, and assembly were concerned, the OSG
maintained that there had been no restrictions on these rights.
● In its Comment, the COMELEC reiterated that petitioner does not have a
concrete and genuine national political agenda to benefit the nation and that
the petition was validly dismissed on moral grounds. It also argued for the
first time that the LGBT sector is not among the sectors enumerated by the
Constitution and RA 7941, and that petitioner made untruthful statements in
its petition when it alleged its national existence contrary to actual
verification reports by COMELEC’s field personnel.

ISSUE(S)/HELD
W/N COMELEC erred in denying Ang Ladlad Partylist’s petition for registration
– YES.
A. Complied with the Requirements of the Constitution and RA 7941
● As ruled in Ang Bagong Bayani, the enumerated marginalized sectors and
the crucial element is whether the organization complies with the
requirements of the Constitution and RA 7941.
● Ang Ladlad did not misrepresent itself when it claimed it has thousands of
affiliates around the country as it never claimed to be present in each
province. The LGBT community is at least 670,000. It is an LGBT umbrella
organization
B. Religion should not a Basis for Refusal to Accept Ang Ladlad’s Petition
for Registration
● Non-establishment clause of the Constitution (Art. III, Sec. 5) calls for
government neutrality in religious matters.
● Grave violation of non-establishment clause for COMELEC to use Bible and
Koran in justifying Ang Ladlad’s exclusion.
● Estrada v Escritor: The morality referred to in the law is public and
necessarily secular, not religious; government action must have a secular
purpose.
C. Moral Disapproval is not a Sufficient Ground to Deny Ang Ladlad’s
Petition
● COMELEC’s argument that though homosexuality may be religion-based, it
has long been transplanted into generally accepted public morals is
UNTENABLE.
o Homosexuals have borne brunt of societal disapproval, but
homosexuality is not a crime.
o Has not been transplanted into realm of law nor public morals.
● Failed to explain what societal ills are sought to be prevented or why special
protection is required for the youth.
● COMELEC’s use of RPC and CC is flimsy, at best; disingenuous, at worst.
o Violation of RPC needs proof beyond reasonable doubt; allegation
of violation not proof.
o Mere invocation of violation of public morals needs judicial
determination.
● Moral disapproval, without more, is not a sufficient interest to justify
exclusion and only amounts to a statement of dislike and disapproval.
D. Equal Protection
● Article I, Sec III: “nor shall anyone be denied equal protection of the laws.”
● Rational basis test in upholding classifications violating equal protection
clause.
o Asserted state interest – moral disapproval – is not a legitimate
state interest sufficient to satisfy test.
● LGBTs have the same interest with other party-lists in participating in
elections, thus, Ang Ladlad deserves to participate in the party-list system on
the same basis as other marginalized and underrepresented sectors.
E. There has been a Transgression on Freedom of Expression and
Association
● Freedom of expression, one foundation of a democratic society, includes
also those that offend, shock or disturb.
o Restriction must be proportionate to the legitimate aim pursued but
since there is no legitimate aim, to uphold restriction is to impose
views on the populace which courts cannot do.
● Homosexuality is not illegal in the country thus right to form LGBT
association is protected.
● Other (European and UN) jurisdictions have said that public perception on
homosexuality does not justify criminalizing same-sex conduct.
o Although not binding, they have persuasive influence on the SC.
● Some may hold that homosexual conduct is offensive but those who view
homosexuality as favorable must also be respected.
● OSG’s contention that Ang Ladlad’s members have not been deprived of the
right to associate because the latter has not been punished is untenable.
o Ang Ladlad established its qualifications, but was denied by
COMELEC on moral grounds not based on law.
F. Non-Discrimination and International Law
● In an age that has seen international law evolve geometrically in scope
and promise, international human rights law, in particular, has grown
dynamically in its attempt to bring about a more just and humane world
order. For individuals and groups struggling with inadequate structural
and governmental support, international human rights norms are
particularly significant, and should be effectively enforced in domestic
legal systems so that such norms may become actual, rather than ideal,
standards of conduct.
● The Court explicitly recognizes the principle of non-discrimination as it
relates to the right to electoral participation, enunciated in the Universal
Declaration of Human Rights (UDHR) and the International Covenant on
Civil and Political Rights (ICCPR).
o The principle of non-discrimination is laid out in Art. 26 of the
ICCPR: All persons are equal before the law and are entitled
without any discrimination to the equal protection of the law. In
this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against
discrimination on any ground such as race, color, sex,
language, religion, political or other opinion, national or social
origin, property, birth or other status.
o In this context, the principle of non-discrimination requires that
laws of general application relating to elections be applied
equally to all persons, regardless of sexual orientation.
Although sexual orientation is not specifically enumerated as a
status or ratio for discrimination in Art. 26 of the ICCPR, the
ICCPR Human Rights Committee has opined that the
reference to "sex" in Article 26 should be construed to include
"sexual orientation." Additionally, a variety of United Nations
bodies have declared discrimination on the basis of sexual
orientation to be prohibited under various international
agreements.
● The Art. 21 (1) of the UDHR provides that “everyone has the right to take
part in the government of his country, directly or through freely chosen
representatives.”
o Likewise, the Art. 25 of the ICCPR states: Every citizen shall have
the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:
▪ (a) To take part in the conduct of public affairs, directly or
through freely chosen representatives;
▪ (b) To vote and to be elected at genuine periodic elections
which shall be by universal and equal suffrage and shall
be held by secret ballot, guaranteeing the free expression
of the will of the electors;
▪ (c) To have access, on general terms of equality, to public
service in his country.
● As stated by the CHR in its Comment-in-Intervention, the scope of the right
to electoral participation is elaborated by the Human Rights Committee in its
General Comment No. 25 (Participation in Public Affairs and the Right to
Vote) as follows:
o (1) Art. 25 of the Covenant recognizes and protects the right of
every citizen to take part in the conduct of public affairs, the right to
vote and to be elected and the right to have access to public
service. Whatever form of constitution or government is in force, the
Covenant requires States to adopt such legislative and other
measures as may be necessary to ensure that citizens have an
effective opportunity to enjoy the rights it protects. Art. 25 lies at the
core of democratic government based on the consent of the people
and in conformity with the principles of the Covenant.
o (15) The effective implementation of the right and the opportunity to
stand for elective office ensures that persons entitled to vote have a
free choice of candidates. Any restrictions on the right to stand for
election, such as minimum age, must be justifiable on objective and
reasonable criteria. Persons who are otherwise eligible to stand for
election should not be excluded by unreasonable or discriminatory
requirements such as education, residence or descent, or by
reason of political affiliation. No person should suffer discrimination
or disadvantage of any kind because of that person's candidacy.
States parties should indicate and explain the legislative provisions
which exclude any group or category of persons from elective
office.
● However, although this Court stands willing to assume the responsibility of
giving effect to the Philippines’ international law obligations, the blanket
invocation of international law is not the panacea for all social ills. The Court
refers now to the petitioner’s invocation of the Yogyakarta Principles (the
Application of International Human Rights Law In Relation to Sexual
Orientation and Gender Identity), which petitioner declares to reflect binding
principles of international law.
● At this time, we are not prepared to declare that these Yogyakarta
Principles contain norms that are obligatory on the Philippines. There are
declarations and obligations outlined in said Principles which are not
reflective of the current state of international law, and do not find basis in any
of the sources of international law enumerated under Art. 38 (1) of the
Statute of the International Court of Justice.
o Petitioner has not undertaken any objective and rigorous analysis
of these alleged principles of international law to ascertain their true
status.
● The Court also hastens to add that not everything that society – or a certain
segment of society – wants or demands is automatically a human right. This
is not an arbitrary human intervention that may be added to or subtracted
from at will. It is unfortunate that much of what passes for human rights
today is a much broader context of needs that identifies many social desires
as rights in order to further claims that international law obliges states to
sanction these innovations.
o This has the effect of diluting real human rights, and is a result of
the notion that if "wants" are couched in "rights" language, then
they are no longer controversial.
o Using even the most liberal of lenses, these Yogyakarta Principles,
consisting of a declaration formulated by various international law
professors, are – at best – de lege ferenda – and do not constitute
binding obligations on the Philippines.
▪ Indeed, so much of contemporary international law is
characterized by the "soft law" nomenclature, i.e.,
international law is full of principles that promote
international cooperation, harmony, and respect for human
rights, most of which amount to no more than well-
meaning desires, without the support of either State
practice or opinio juris.
DISPOSITIVE: WHEREFORE, the Petition is hereby GRANTED. The Resolutions of
the Commission on Elections dated November 11, 2009 and December 16, 2009 in
SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is
directed to GRANT petitioner’s application for party-list accreditation. SO ORDERED.
DISSENTING OPINON: Corona, J.
● The Court’s pronouncement in Ang Bagong Bayani is limited and qualified,
hence, other sectors that may qualify as marginalized should have a close
connection to the sectors mentioned (ejusdem generis).
o Ang Ladlad is not included in the list of marginalized sectors in Sec
5 RA 7941 or Art VI, Sec. 5 (2), of the Constitution nor does it
establish a close connection with any of the said sectors.
o Mentioned sectors in Sec. 5, RA 7941: labor, peasants, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers, and professionals.
o Mentioned sectors in Art. VI, Sec. 5 (2) of the Constitution: labor,
peasants, urban poor, indigenous cultural communities, women,
youth, and such other sectors as may be provided by law, except
the religious sector.
● Petitioner’s interest, a sector which is the legal recognition of its members’
sexual orientation as a right, can’t be considered as an interest that is
traditionally and historically considered as vital to national interest.
● Petitioner is cut off from the common constitutional thread that runs through
the marginalized and underrepresented sectors under the party-list system.
● Considering history and tradition, considering the promotion of LGBT
agenda and “gay rights” as a national policy as beneficial to the nation as a
whole is debatable at best.

88 Military and Paramilitary Activities in and against Nicaragua

| 27 June 1986 | International Court of Justice

SUMMARY: Nicaragua accuses the United States of intervention of state affairs,

through the following: providing budget “directly or indirectly” for the military and
paramilitary operations of the contras against the Nicaraguan government; staging
attacks on ports, oil installations, and a naval base by persons in the pay of the U.S.
government, and under the direct command and participation of U.S. personnel; and
conducting overflights for intelligence and intimidation. The United States did not deny
some of the acts, countering that what it did was for collective self-defense, as
Nicaragua allegedly supported the guerilla movement against El Salvador, a U.S. ally.
But for the ICJ, those acts were not collective self-defense, as the requisites under
Article 51 of the U.N. Charter were not present.

TOPIC: Use of force

DOCTRINE: When a State claims that it used force in collective self-defense, the ICJ
must ascertain: (a) the circumstances required for the exercise of the right; and (b)
the steps taken by the State as sufficient in standards by international law. Under
international law, these standards include: (a) the State must have been attacked; (b)
State must declare itself victim of the armed attack; (c) for collective self-defense, the
injured State must ask for assistance meaning absent a request, the claim of
collective self-defense cannot hold; and (d) State attacked must not have an Article
51 obligation to report to the Security Council.
PROVISIONS APPLICABLE:
 Article 2(4) of the United Nations Charter: “All Members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations”
 Article 51 of the U.N. Charter: “Nothing in the present Charter shall impair the
inherent right of individual or collective self-defense if an armed attack occurs
against a Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security. Measures
taken by Members in the exercise of this right of self-defense shall be
immediately reported to the Security Council.”
 of non-interference since no such general right of intervention in support of
FACTS:
 In 1979, Nicaraguan dictator Anastacio Somoza stepped down from power and a
“democratic coalition” was installed in his place by the armed opposition group
Frente Sandinista de Liberacion Nacional (FSLN).
 The United States was initially supportive of the new government but withdrew its
support, citing Nicaragua’s involvement with guerillas in El Salvador.
 The 1983 U.S. budget funded “directly or indirectly, military and paramilitary
operations in Nicaragua” for the contras, those fighting against the Nicaraguan
government, and were alleged to have committed acts of killing, torturing, raping,
and kidnapping Nicaraguan. (The ICJ would later rule that while not all the
operations launched by the contras, at every stage of the conflict, reflected
strategy and tactics solely devised by the United States, a number of operations
were decided and planned, if not actually by the U.S. advisers, then at least in
close collaboration with them, and on the basis of the intelligence and logistic
support which the United States was able to offer. Further, U.S. support for the
contras took various forms over the years, such as logistic support, the supply of
information on the location and movements of the Sandinista troops, the use of
sophisticated methods of communication. In other words, while there was no
evidence of direct combat support, a.k.a. direct intervention, there is still direct
logistics and intelligence support, and advise)
 Apart from the support to the contras, Nicaragua claims that there were attacks
on ports, oil installations, and a naval base carried out by persons in the pay of
the U.S. government, and under the direct command and participation of U.S.
personnel, although claimed by the contras, and that U.S. aircraft overflight were
allegedly for intelligence and intimidation. (The ICJ would later rule that 1983-
1984 mining operations were carried on in Nicaragua's territorial or internal
waters or both, citing the fact that they were authorized by the U.S. President,
and that intelligence aircraft overflights were indeed conducted).
 In response, the United States forwarded the claim of collective self-defense, in
favor of El Salvador, an ally, especially with regards to guerillas from Nicaragua.
ISSUES w/ HOLDING & RATIO
2. W/N the United States violated customary international law when it trained,
armed, equipped, and financed the contras or when it aided the military and
paramilitary activities against Nicaragua
 YES. This was contrary to customary international law obligation not to
intervene in the affairs of another State.
 The principle of non-intervention involves the right of every sovereign State
to conduct its affairs without outside interference. The existence in the
opiniojuris of States of the principle of non-intervention is backed by
established and substantial practice. It has moreover been presented as a
corollary of the principle of the sovereign equality of States.
 Tthe Declaration on Principles of International Law concerning Friendly
Relations and Co-operation first laid down the the principle of non-
intervention in matters within the national jurisdiction of States, and which
appeared in many other similar declarations.
 The United States’ financial support, training, and supply of weapons,
intelligence, and logistical support to the contras clearly violates the principle
an opposition in another State exists in contemporary international law even
if a request is placed by the opposition itself. By supporting the contras, the
United States intended to coerce Nicaragua in respect of matters in which
each State is permitted to decide freely, amounting to an intervention when it
supported and assisted contras whose intention was to overthrow
Nicaragua’s government.
3. W/N the United States violated customary international law when it directly
attacked Nicaragua in 1983 and 1984 which resulted in the use of force
 Yes. This was contrary to customary international law obligation not to use
force against another State.
 The prohibition on use of force—as established in Article 2(4) of the U.N.
Charter which states that “all Members shall refrain in their international
relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations”—which include, but not limited to,
military exercises on the border or hostile statements of future invasions.
 The phrase “most grave forms of the use of force” such as an armed attack
was differentiated from the phrase “other less grave forms” such as
organizing, instigating, assisting, or participating in acts of civil strife and
terrorist acts in another State—when the acts referred to involve a threat or
use of force, but not amounting to an armed attack, as in this case.
 The ter armed attack was then defined as: (a) action by regular armed forces
across an international border; and (b) sending by or on behalf of a State of
armed bands, groups, irregulars, or mercenaries which carry out armed
force against another State of such gravity as to amount to inter alia an
actual armed attack conducted by regular forces or its substantial
involvement therein.
 However, mere frontier incidents and assistance to rebels by means of
providing weapons or logistical support do not constitute an armed attack.
Such assistance may be regarded as a threat or use of force, or amount to
intervention in the internal or external affairs of other States.
4. W/N the United States violated customary international law when it ordered
overflight of U.S. planes over Nicaraguan territory and planted mines in the
territorial waters of Nicaragua
 YES. This was contrary to customary international law obligation not to
violate the sovereignty of another State and not to interrupt peaceful
maritime commerce.
  The effects of the principle of respect for territorial sovereignty inevitably
overlap with those of the principles of the prohibition of the useof force and 12-3, US overflights over Nicaragua breached its customary international law
of non-intervention. Thus the assistance to the contras and the direct attacks obligation not to violate the sovereignty of another State;
on Nicaraguan ports, oil installations, not only amount to an unlawful use of
force, but also constitute infringements of the territorial sovereignty of 12-3, US laying of mines in the waters of Nicaragua breached its customary
Nicaragua, and incursions into its territorial and internal waters. Similarly, the international law obligation not to interrupt peaceful maritime commerce;
mining of Nicaraguan ports not only constitute breaches of the principle of
the non-use of force, but also affect Nicaragua's sovereignty over certain 14-1, US breached its Treaty of Friendship, Commerce and Navigation with
maritime expanses. The principle of respect for territorial sovereignty is also Nicaragua;
directly infringed by the unauthorized overflight of a State's territory by
aircraft belonging to or under the control of the government of another State. 14-1, US producing a manual on operations has encouraged contras to
 Wher the vessels of one State enjoy a right of access to ports of another commit acts contrary to general principles of humanitarian law, and such
State, if that right of access is hindered by the laying of mines, this acts are imputable to the US;
constitutes an infringement of the freedom of communications and of
maritime commerce. 12-3, US is enjoined from committing further acts in breach of foregoing
legal obligations;
5. W/N the military and paramilitary activities carried out by the United States can
be justified as collective self-defense 12-3, US must make reparations to Nicaragua;
 NO. The principle of collective self-defense cannot justify the activities by the
United States in and against Nicaragua. 14-1, ICJ must determine amounts of reparation;
 Article 51 of the U.N. Charter provides the requisites on the exercise of self-
defense: “Nothing in the present Charter shall impair the inherent right of Unanimously, both Parties to seek resolution by peaceful means in
individual or collective self-defense if an armed attack occurs against a accordance with international law.
Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security. Measures
taken by Members in the exercise of this right of self-defense shall be
immediately reported to the Security Council.”
 Customary international law allows for exceptions to the prohibition on the
use of force, which includes the right mentioned above.
 When a State claims that it used force in collective self-defense, the ICJ
must ascertain: (a) the circumstances required for the exercise of the right;
[89] Legality of the Threat or Use of Nuclear Weapons
and (b) the steps taken by the State as sufficient in standards by
international law. July 08, 1996 | Advisory Opinion | International Court of Justice
 Under international law, these standards include: (a) the State must have
been attacked; (b) State must declare itself victim of the armed attack; (c) for SUMMARY
collective self-defense, the injured State must ask for assistance The Court found, by 11 votes to 3, that it was not able to give the advisory opinion
meaningabsent a request, the claim of collective self-defense cannot hold; requested by the World Health Organization on the question of the Legality of the Use
and (d) State attacked must not have an Article 51 obligation to report to the by a State of Nuclear Weapons in Armed Conflict. The Court considered that there
Security Council.
are three conditions which must be satisfied in order to found the jurisdiction of the
 In this case, the activities of the United States existed way ahead before El
Court when a request for an advisory opinion is submitted to it by a specialized
Salvador declared itself to be a victim of an armed attack, and asked the
United States for assistance. agency: the agency requesting the opinion must be duly authorized, under the
Charter of the United Nations, to request opinions from the Court; the opinion
RULING: For these reasons, The Court votes by: requested must be on a legal question; and this question must be one arising; within
12-3, justification of collective self-defense rejected the scope of the activities of the requesting agency. The first two conditions had been
met. With regard to the third, however, the Court found that although according to its
12-3, US training and aid to contra forces breached its customary
Constitution the: World Health Organization (WHO) is authorized to deal with the
international law obligation not to intervene in the affairs of another State;
effects to health of the use of nuclear weapons, or of any other hazardous activity,
12-3, US attacks on Nicaraguan territory breached its customary and to take preventive measures aimed at protecting the health of populations in the
international law obligation not to use force against another State; event of such weapons being used or such activities engaged in, the question put to
the Court in the present case relates not to the effects of the use of' nuclear weapons
on health, but to the legality of the use of' such weapons in view of their health and
environmental effects. And the Court pointed out that whatever those effects might
be, the competence of WHO to deal with them is not dependent on the legality of the
acts that caused them. The Court further pointed out that international organizations
do not, unlike States, possess a general competence, but are governed by the
"principle of specialty", that is to say, they are invested by the States which create
them with powers, the limits of which are a function of the common interests whose
promotion those States entrust to them. Besides, the World Health Organization is an
international organization of a particular kind of "specialized agency" forming part of a
system based in the Charter of the United Nations, which is designed to organize
international cooperation in a coherent fashion by bringing the United Nations,
invested with powers of general scope, into relationship with various autonomous and
complementary organizations, invested with sectorial powers. The Court therefore
concluded that the responsibilities of WHO are necessarily restricted to the sphere of
public "health" and cannot encroach on the responsibilities of other parts of the United
Nations system, and that there is no doubt that questions concerning the use of force,
the regulation of armaments and disarmament are within the competence of the
United Nations and lie outside that of the specialized agencies. The request for an
advisory opinion submitted by WHO thus does not relate to a question which arises
"within the scope of [the] activities" of that Organization.
TOPIC:
DOCTRINE
Three conditions which must be satisfied in order to found the jurisdiction of the Court
when a request for an advisory opinion is submitted to it by a specialized agency: (1)
The agency requesting the Opinion must be duly authorized under the Charter to
request opinion from the Court, (2) the opinion requested must be on a legal question,
and (3) this question must be one arising within the scope of the activities of the
[EXTENSIVE] FACTS
requesting agency.
ISSUE w/ HOLDING & RATIO:
1. W/N the World Health Organization, as a specialized agency, is
authorized to deal with the legality of the threat or use of nuclear
weapons – NO.
 Three conditions which must be satisfied in order to found the jurisdiction of
the Court when a request for an advisory opinion is submitted to it by a
specialized agency:
1. The agency requesting the Opinion must be duly authorized
under the Charter to request opinion from the Court;
2. The opinion requested must be on a legal question; and
3. This question must be one arising within the scope of the
activities of the requesting agency.
 The first two conditions had been met. With regard to the third, the Court
found that although according to its Constitution, the World Health
Organization is authorized to deal with the effects on health of the use of
nuclear weapons, or of any other hazardous activity, and to take preventive
measures aimed at protecting the health of populations in the event of such
weapons being used or such activities engaged in, the question put to the
Court in the present case related not to the effects of the use of nuclear
weapons on health, but to the legality of the use of such weapons in
view of their health and environmental effects.
 The Court further pointed out that international organizations do not, unlike
States, possess a general competence, but are governed by the "principle of
specialty" that is to say, they are invested by the States which create them
with powers, the limits of which are a function of the common interests
whose promotion those States entrust to them.
o Besides, the WHO was an international organization of a particular
kind: a “specialized agency” forming a part of a system based in the
Charter of the United Nations, which was designed to organize
international co-operation in a coherent fashion by bringing the
United Nations invested with powers of general scope, into
relationship with various autonomous and complementary
organizations, invested with sectorial powers.
o The Court therefore concluded that the responsibilities of the
WHO were necessarily restricted to the sphere of public
"health" and cannot encroach on the responsibilities of other
parts of the United Nations system.
 Thus, there was no doubt that the questions concerning the use of force, the
regulation of armament and disarmament were within the competence of the
United Nations and lied outside of the competencies of the specialized
agencies.
o The request for an advisory opinion submitted by the WHO
therefore did not relate to a question which arises "within the scope
of the activities" of the organization.
 The Court begins by recalling that by a letter dated 27 August 1993, filed in
the Registry on 3 September 1993, the Director-General of the World Health
Organization officially communicated to the Registrar a decision taken by the
World Health Assembly to submit a question to the Court for an advisory
opinion. The question set forth in resolution officially adopted by the
Assembly on 14 May 1993, reads as follows:
o “In view of the health and environmental effects, would the use of
nuclear weapons by a State in war or other armed conflict be a
breach of its obligations under international law including the WHO
Constitution?”
 Jurisdiction of the Court: The Court begins by observing that, in view of
Article 65, paragraph 1, of its Statute and of Article 96, paragraph 2, of the
Charter, three conditions must be satisfied in order to found the jurisdiction
of the Court when a request for an advisory opinion is submitted to it by a
specialized agency:
 o (1) The agency requesting the opinion must be duly authorized,
under the Charter, to request opinions from the Court; (2) the
opinion requested must be on a legal question; and (3) this
question must be one arising within the scope of the activities of the
requesting agency.
 Authorization of WHO to request advisory opinions: Where WHO is
concerned, the above-mentioned texts are reflected in Article 76 of that
Organization's Constitution, and in paragraph 2 of Article X of the agreement
of 10 July 1948 between the United Nations and WHO, which the Court finds
leave no doubt that WHO has been duly authorized, in accordance with
Article 96, paragraph 2, of the Charter, to request advisory opinions of the
Court.
 “Legal question”: The Court observes that it has already had occasion to
indicate that questions “framed in terms of law and rais[ing] problems of
international law . . . are by their very nature susceptible of a reply based on
law . . . [and] appear. . . to be questions of a legal character” (Western
Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 18, para. 15).
o It finds that the question put to the Court by the World Health
Assembly does in fact constitute a legal question, as in order to rule
on the question submitted to it the Court must identify the
obligations of States under the rules of law invoked, and assess
whether the behavior in question conforms to those obligations,
thus giving an answer to the question posed based on law.
o The fact that this question also has political aspects, as, in the
nature of things, is the case with so many questions which arise in
international life, does not suffice to deprive it of its character as a
"legal question" and to "deprive the Court of a competence
expressly conferred on it by its Statute". Nor are the political nature
of the motives which may be said to have inspired the request or
the political implications that the opinion given might have of
relevance in the establishment of the Court's jurisdiction to give
such an opinion.
 Question arising “within the scope of the activities” of WHO: The Court
observes that in order to delineate the field of activity or the area of
competence of an international organization, one must refer to the relevant
rules of the organization and, in the first place, to its constitution.
o From a formal standpoint, the constituent instruments of
international organizations are multilateral treaties, to which the
well-established rules of treaty interpretation apply. But they are
also treaties of a particular type; their object is to create new
subjects of law endowed with a certain autonomy, to which the
parties entrust the task of realizing common goals.
o Such treaties can raise specific problems of interpretation owing,
inter alia, to their character which is conventional and at the same
time institutional; the very nature of the organization created, the
objectives which have been assigned to it by its founders and the
imperatives associated with the effective performance of its
functions, as well as its own practice, are all elements which may
deserve special attention when the time comes to interpret these
constituent treaties.
 According to the customary rule of interpretation as expressed in Article 31
of the 1969 Vienna Convention on the Law of Treaties, the terms of a treaty
must be interpreted “in their context and in the light of its object and
purpose” and there shall be "taken into account, together with the context:
o (b) any subsequent practice in the application of the treaty which
establishes the agreement. of the parties regarding its
interpretation". The Court has had occasion to apply this rule of
interpretation several times and will also apply it in this case.
 Interpretation of the WHO Constitution: The Court points out that the
functions attributed to WHO are listed in 22 subparagraphs (subparagraphs
(a) to (v)) in Article 2 of its Constitution.
o None of these subparagraphs expressly refers to the legality of any
activity hazardous to health; and none of the functions of WHO is
dependent upon the legality of the situations upon which it must
act. Moreover, it is stated in the introductory sentence of article 2
that the Organization discharges its functions “in order to achieve
its objective”.
o The objective of the Organization is defined in Article 1 as being
"the attainment by all peoples of the highest possible level of
health". Also referring to the preamble to the Constitution, the Court
concludes that, interpreted in accordance with their ordinary
meaning, in their context and in the light of the object and purpose
of the WHO Constitution, as well as of the practice followed by the
Organization, the provisions of its Article 2 may be read as
authorizing the Organization to deal with the effects on health of the
use of nuclear weapons, or of any other hazardous activity, and to
take preventive measures aimed at protecting the health of
populations in the event of such weapons being used or such
activities engaged in.
 It goes on to observe that the question put to the Court in
the present case relates, however, not to the effects of the
use of nuclear weapons on health, but to the legality of the
use of such weapons in view of their health and
environmental effects. And the Court points out that,
whatever those effects might be, the competence of WHO
to deal with them is not dependent on the legality of the
acts that caused them. Accordingly, it does not seem to
the Court that the provisions of Article 2 of the WHO
Constitution, interpreted in accordance with the criteria
referred to above, can be understood as conferring upon
the Organization a competence to address the legality of
the use of nuclear weapons, and thus in turn a
competence to ask the Court about that.
 In the view of the Court, none of the functions referred to in the resolution by
which the Court has been seised of this request for an opinion has a
 sufficient connection with the question before it for that question to be
capable of being considered as arising “within the scope of [the] activities” of
WHO.
o The causes of the deterioration of human health are numerous and
varied; and the legal or illegal character of those causes is
essentially immaterial to the measures which WHO must in any
case take in an attempt to remedy their effects. In particular, the
legality or illegality of the use of nuclear weapons in no way
determines the specific measures, regarding health or otherwise
(studies, plans, procedures, etc.), which could be necessary in
order to seek to prevent or cure some of their effects.
o The reference in the question put to the Court to the health and
environmental effects, which according to WHO the use of a
nuclear weapon will always occasion, does not make the question
one that falls within WHO'S functions.
 The Court goes on to point out that international organizations are subjects
of international law which do not, unlike States, possess a general
competence. International organizations are governed by the “principle of
specialty”, that is to say, they are invested by the States which create them
with powers, the limits of which are a function of the common interests
whose promotion those States entrust to them.
o The powers conferred on international organizations are normally
the subject of an express statement in their constituent instruments.
Nevertheless, the necessities of international life may point to the
need for organizations, in order to achieve their objectives, to
possess subsidiary powers which are not expressly provided for in
the basic instruments that govern their activities.
o It is generally accepted that international organizations can
exercise such powers, known as “implied” powers. The Court is of
the opinion, however, that to ascribe to WHO the competence to
address the legality of the use of nuclear weapons-even in view of
their health and environmental effects-would be tantamount to
disregarding the principle of specialty; for such competence could
not be deemed a necessary implication of the Constitution of the
Organization in the light of the purposes assigned to it by its
member States.
 WHO is, moreover, an international organization of a particular kind. As
indicated in the preamble and confirmed by Article 69 of its Constitution, “the
Organization shall be brought into relation with the United Nations as one of
the specialized agencies referred to in Article 57 of the Charter of the United
Nations”.
o As its Articles 57and 63 demonstrate, the Charter laid the basis of a
“system” designed to organize international cooperation in a
coherent fashion by bringing the United Nations, invested with
powers of general scope, into relationship with various autonomous
and complementary organizations, invested with sectorial powers.
If, according to the rules on which that system is based, WHO has,
by virtue of Article 57 of the Charter, "wide international
responsibilities", those responsibilities are necessarily restricted to
the sphere of public "health" and cannot encroach on the
responsibilities of other parts of the United Nations system.
o And there is no doubt that questions concerning the use of force,
the regulation of armaments and disarmament are within the
competence of the United Nations and lie outside that of the
specialized agencies. For all these reasons, the Court considers
that the question raised in the request for an advisory opinion
submitted to it by WHO does not arise “within the scope of [the]
activities” of that Organization as defined by its Constitution.
 WHO'S practice: A consideration of the practice of WHO bears out these
conclusions. None of the reports and resolutions referred to in the preamble
to World Health Assembly resolution WHA46.40, nor resolution WHA46.40
itself, could be taken to express, or to amount on its own to, a practice
establishing an agreement between the members of the Organization to
interpret its Constitution as empowering it to address the question of the
legality of the use of nuclear weapons, nor can, in the view of the Court,
such a practice be inferred from isolated passages of certain resolutions of
the World Health Assembly cited during the present proceedings.
o The Court further considers that the insertion of the words
“including the WHO Constitution” in the question put to the Court
does not change the fact that WHO is not empowered to seek an
opinion on the interpretation of its Constitution in relation to matters
outside the scope of its functions.
 Other arguments: The Court finally considered that other arguments put
forward in the proceedings to found the jurisdiction of the Court, concerning
the way in which World Health Assembly resolution WHA46.40 had been
adopted and concerning the reference to that resolution in General
Assembly resolution 49/75 K-did not affect the conclusions reached by the
Court concerning the competence of WHO to request an opinion on the
question raised.
o Having arrived at the view that the request for an advisory opinion
submitted by WHO does not relate to a question which arises
“within the scope of [the] activities” of that Organization in
accordance with Article 96, paragraph 2, of the Charter, the Court
finds that an essential condition of founding its jurisdiction in the
present case is absent and that it cannot, accordingly, give the
opinion requested.
RULING: For these reasons, THE COURT, eleven votes to three, finds that it is not
able to give the advisory opinion which was requested of it under World Health
Assembly resolution WHA46.40 dated 14 May 1993.
DISSENT: Weeramantry, J.
 Stated that the question asked by the World Health Organization related to
obligations in three particular areas: (a) State obligations in regard to health;
 (b) State obligations in regard to the environment; and (c) State obligations
under the WHO Constitution.
o The question asked by WHO was substantially different from the
general question of legality of use or threat of use of nuclear
weapons, asked by the General Assembly. However, the Court had
treated it as a question of general illegality, and had not examined
State obligations in the three areas mentioned.
o Had the Court inquired into these three areas, it would have found
that each of them was intimately linked with the legitimate concerns
of WHO and that, in each of these areas, State obligations were
violated by nuclear weapons.
 Judge Weeramantry, in his opinion, examines the health-related and
environmentally related effects of nuclear weapons to show the diametrical
contrast between those effects and the obligations of States, both as
members of the international community, in general, and as subscribing
parties to the WHO Constitution.
o Judge Weeramantry strongly disagreed with the majority of the
Court, who had held that WHO question was outside the scope of
its legitimate sphere of interest. His view, on the other hand, was
that the question asked by WHO was entirely within its legitimate
and constitutional sphere of interest.
 WHO was in fact to be commended for having given its attention to the
question of the legality of the nuclear weapon, which was the greatest man-
made threat to human health thus far devised. WHO was the only health
authority to which the world would have to turn for international assistance if
a country were stricken with a nuclear attack, for its own health services
would have collapsed.
o Moreover, even neutral countries nor involved in the dispute, which
would be affected by the radiation and other effects of nuclear
weapons, would need to turn to WHO for assistance in such an
eventuality. Global health was central to the question; just as global
health was central to the concerns of WHO.
 Planning and prevention were essential ports of the activities of all health
authorities, and this general principle unquestionably applied to WHO, which
needs the legal information requested, for precisely this purpose.

[90] Oil Platforms Case (Iran v. USA)

ICJ Reports (2003)

SUMMARY
Iran submitted a claim to the ICJ, referring to two attacks made by the US on two
occasions, in which 3 Iranian oil platforms were destroyed. Iran felt the US’ actions
breached some provisions within their bilateral Treaty of Amity, Economic Relations,
and Consular Rights (signed in 1955) and they sought reparations for the attacks.
Iran based the court’s jurisdiction to hear the claim from Article XXI, paragraph II, of
the 1955 treaty, which allowed the court to interpret the treaty in the event of a conflict
between parties. US issued a counterclaim regarding Iran’s actions in the Persian
Gulf during 1987-88 citing mining of the waters and other attacks on U.S. flagged
vessels, which the court found to be admissible and used in the proceedings of the
case. There was neither a plaintiff nor a defendant in this case because the court was
asked to review if there was a breach in the 1955 Treaty between Iran and the United
States.
On the issue of whether US actions against the Iranian oil platforms qualify as self-
defense in regards to the international laws on the use of force, the court held that the
actions of the US do not constitute as acts of self-defense under international law.
One aspect of the criteria of necessity and proportionality is the nature of the target of
the force used in self-defense. The requisites were not met in this case.
TOPIC: MODULE 9: Use of Force
DOCTRINE: The principle of the prohibition in international law of the use of force is
qualified by the right of self-defense. A party to the treaty may be justified in taking
certain measures which it considers to be necessary for the protection of its essential
security interests.
FACTS:
[Quick Facts]
 The actions giving rise to both the claim and the counter-claim occurred in the
Persian Gulf between 1980 and 1988, within the context of the armed conflict
that opposed Iran and Iraq.
 Two specific attacks on shipping are relevant to the instant case.
o The Kuwaiti tanker Sea Isle City, reflagged2 to the United States, was hit
by a missile near the Kuwait harbor.
 The US attributed this attack on Iran.
 The US subsequently attacked two Iranian offshore oil production
rigs in the Rostam complex.
o The US Warship Samuel B. Roberts struck a mine in international water
near Bahrain.
 Four days later, the US attacked the Sirri and Sassan complexes.
[Expanded Facts]
 1980-1988: Events arising from the claims took place in the Persian Gulf.
o This is an international commercial route and line of communication of
major importance, in particular the armed conflict between Iran and Iraq.
 1984: Iraq commenced attacks against ships in the Persian Gulf, notably tankers
carrying Iranian oil.
o These were the first incidents of what later became known as the "Tanker
War"
 1984-1988: A number of commercial vessels and warships of various
nationalities, including neutral vessels, were attacked by aircraft, helicopters,
missiles or warships, or struck mines in the waters of the Persian Gulf.
2
Nationality changed
o Naval forces of both belligerent parties (Iran & Iraq) were operating in the
region, but Iran has denied responsibility for any actions other than
incidents involving vessels refusing a proper request for stop and search.
o USA attributes responsibility for certain incidents to Iran, whereas Iran
suggests that Iraq was responsible for them.
 2 specific attacks on shipping are of particular relevance in this case.
 Oct. 16, 1987: Kuwaiti tanker Sea Isle City, reflagged to the US, was hit by a
missile near Kuwait harbour.
o US attributed this attack to Iran.
 Oct. 19, 1987 (3 days later): US attacked 2 Iranian offshore oil production
installations in the Reshadat ("Rostam") complex.
o This complex was also connected by submarine pipeline to another
complex, named Resalat.
o At the time of the US attacks, these complexes were not producing oil due
to damage inflicted by prior Iraqi attacks.
 Apr. 14, 1988: The warship USS Samuel B. Roberts struck a mine in
international waters near Bahrain while returning from an escort mission
 Apr. 18, 1988 (4 days later): US employed its naval forces to attack and destroy
simultaneously the Nasr ("Sirri") and Salman ("Sassan") complexes.
o Iran was pointed as culprit upon discovery of moored mines in the same
area bearing serial numbers matching other Iranian mines.
o Said attacks were conceived and executed as part of a more extensive
operation entitled "Operation Praying Mantis".
 Nov. 2, 1992: Iran filed an Application against the US in respect of a dispute
"arising out of the attack on and destruction of 3 offshore oil production
complexes (oil platforms) located on the Iranian continental shelf, owned and
operated for commercial purposes by the National Iranian Oil Co., by several
warships of the US Navy on Oct. 19, 1987 & Apr. 18, 1988.
o These acts constituted a "fundamental breach" of various provisions of
the Treaty of Amity, Economic Relations and Consular Rights (Treaty
of 1955/Treaty of Amity) signed by US and Iran
 Signed at Tehran on 15 Aug. 1955 and entered into force on 16 June
1957
 US breached its obligations to Iran, under Arts. I, IV (1) and X
(1) of the Treaty of Amity and international law.
o Court has jurisdiction under Article XXI (2) of the Treaty of Amity as
they relate to a dispute between the Parties as to the interpretation or
application of the Treaty of Amity
 Art. XXI, par. 2, of that Treaty: "Any dispute between the High
Contracting Parties as to the interpretation or application of the
present Treaty, not satisfactorily adjusted by diplomacy, shall be
submitted to the ICJ...
 USA made a preliminary objection alleging that ICJ has no jurisdiction since
Iran’s Application bears no relation to the Treaty of 1955
o Iran's claims raise issues relating to the use of force which
"occurred in the context of a long series of attacks by Iranian
military and paramilitary forces on US and other neutral vessels
engaged in peaceful commerce in the Persian Gulf'.
o Also, Treaties of Friendship, Commerce and Navigation like the
Treaty of 1955 which provide protection for property interests are
 wholly commercial and consular provisions.
 ICJ (Dec. 1992): The Court has jurisdiction to entertain and rule on Iran’s claims
pursuant to the Treaty of 1955.
o Treaty of 1955 does not exclude matters relating to use of force
 The Treaty of 1955 contains no provision expressly excluding
certain matters from the jurisdiction of the Court.
 Art. XX, par. 1 (d)3, as decided in Nicaragua v. US, is understood
as affording only a defense on the merits. It does not restrict the
Court’s jurisdiction.
 The Treaty of 1955 imposes on each of the Parties various
obligations on a variety of matters.
 Any action by one of the Parties that is incompatible with those
obligations is unlawful, regardless of the means by which it is
brought about.
 A violation of the rights of one party under the Treaty by
means of the use of force is as unlawful as would be a
violation by administrative decision or by any other means.
 Matters relating to the use of force are therefore not per se
excluded from the reach of the Treaty of 1955.
o Claim needs interpretation of Art. X of the Treaty of 19554
 There exists between the Parties a dispute as to the interpretation
and the application of this provision.
 Iran had not alleged that any military action had affected its freedom
of navigation, so that the only question to be decided was "whether
the actions of the United States complained of by Iran had the
potential to affect “freedom of commerce”
 ICJ agrees with Iran that a natural interpretation of the word
“commerce” in Art. X, par. 1, does not contemplate only
maritime commerce or the immediate act of purchase and sale,
but commerce in general and the ancillary activities related to
commerce (see ratio, must be only bet. US & iran).
 It does not strictly speaking protect “commerce” but freedom of
commerce'
 Iran's oil production, a vital part of that country's economy,
constitutes an important component of its foreign trade.
 If Iran was able to prove that the destruction of the Iranian
oil platforms was capable of having such an effect to
export and, consequently, of having an adverse effect
upon the freedom of commerce as guaranteed by Art. X, par.
1, of the Treaty of 1955, then its claim would be upheld.
 USA filed a Counter-Memorial which included a counter-claim concerning "Iran's
actions in the Gulf during 1987-88 which, among other things, involved mining
and other attacks on U.S.-flag or U.S.-owned vessels".
[Iran’s arguments]
3
Art. XX, par. 1 (d): “The present Treaty shall not preclude the application of measures….necessary to
fulfill the obligations of a High Contracting Party for the maintenance or restoration of international peace and
security, or necessary to protect its essential security interests."
4
Art. X, par. 1, of the Treaty of 1955: "Between the territories of the two High Contracting Parties there
shall be freedom of commerce and navigation."
 In attacking and destroying on 19 Oct. 1987 & 18 Apr. 1988 the oil platforms,
USA breached its obligations to Iran under Art. X, par. 1, of the Treaty of Amity
(freedom of commerce and navigation)
 USA is under an obligation to make full reparation to Iran for the violation of its
international legal obligations
[USA’s arguments]
 USA did not breach its obligations to Iran under Art. X, par. 1, of the 1955 Treaty
 Actions carried out by US forces against Iranian oil installations are justified,
under Art. XX, par. 1 (d), of the 1955 Treaty (see footnote 1), as being
measures necessary to protect the essential security interests of the US 
such actions were merely acts of SELF-DEFENSE
 Even if the Court were to find that its actions do not fall within the scope of the
provision, those actions were not wrongful since they were necessary and
appropriate actions in self-defense.
 ALSO, even assuming that the attacks caused some interference with freedom of
commerce, it did not interfere with freedom of commerce "between the
territories of the two High Contracting Parties
 Prior to Iran’s Application, it gave notice of its action to the Security Council under
Art. 51 of the UN Charter
o Attacks were justified by the existence of a series of offensive attacks
and provocations the Iranian naval forces have taken against neutral
shipping in the international waters of the Persian Gulf including laying
mines in international waters for the purpose of sinking or damaging US
flag ships, and firing on US aircraft without provocation."
o As to attacks on Reshadat ("Rostam") complex: It was justified on
the basis of a missile attack on the Sea Isle City
o As to attacks on Nasr ("Sirri") and Salman ("Sassan") complexes:
Attacks were made as an exercise of their inherent right of self-defense
by taking defensive action in response to an attack by Iran against a US
naval vessel, namely the mining of the USS Samuel B. Roberts;
 With respect to its counter-claim: Iran is under an obligation to make full
reparation to the US for its breach of the 1955 Treaty
o In attacking vessels in the Gulf with mines and missiles and otherwise
engaging in military actions that were dangerous and detrimental to
commerce and navigation between the territories of US and Iran, the
latter breached its obligations to the US under Art. X, par. 1, of the
1955 Treaty.
ISSUES w/ HOLDING & RATIO
6. W/N USA can justify its attacks on the oil platforms as self-defense against
attacks by Iran  NO
[procedural]
Re: Examination of self-defense issues before questions on violation of treaty
 To uphold Iran’s claim, ICJ must be satisfied both that:
o the actions of US, complained of by Iran, infringed the freedom of
commerce between the territories of the Parties
 o such actions were not justified to protect the essential security interests of
the US as contemplated by Article XX, paragraph 1 (d).
 The Court first examines the effect of Art. XX, Par. 1(d), which involves the
principle of the prohibition in international law of the use of force, and the
qualification to it constituted by the right of self-defense.
o Under such provision, a party to the treaty may be justified in taking
certain measures which it considers to be necessary for the protection of
its essential security interests.
o They must not only be such as tend to protect the essential security
of the party taking them but must be necessary for that purpose.
[substantial]
 Actions carried out by US forces against Iranian oil installations on Oct. 19, 1987
& Apr. 18, 1988 cannot be justified, under Art. XX, par. 1 (d), of the 1955 Treaty,
as being measures necessary to protect the essential security interests of the US
 Those actions constituted recourse to armed force not qualifying, under
international law, as acts of self-defense.
Unlawful use of force
 ICJ has jurisdiction under the 1955 Treaty to determine whether action alleged to
be justified under that paragraph was or was not an unlawful use of force, by
reference to international law applicable to this question (ie. provisions of the UN
Charter and customary international law).
o Art. XX, par. 1 (d), of the 1955 Treaty involves the principle of the
prohibition in international law of the use of force, and the
qualification to it constituted by the right of self-defense.
 On the basis of said provision, a party to the Treaty may be
justified in taking certain measures which it considers to be
"necessary" for the protection of its essential security interests.
 In this case, the question whether the measures taken were "necessary"
overlaps with the question of their validity as acts of self-defense.
 USA has never denied that its actions against the Iranian platforms amounted to
a use of armed force.
 However, it still to be determined whether each of these actions met the
conditions of Art. XX, par. 1 (d), as interpreted by reference to the relevant rules
of international law on the use of force in self-defense.
Attack of 19 October 1987 on Reshadat
 USA has not claimed to have been exercising collective self-defense on behalf
of the neutral States engaged in shipping in the Persian Gulf.
 Therefore, in order to establish that it was legally justified in attacking the Iranian
platforms in exercise of the right of individual self-defense, the US has to
show:
o that attacks had been made upon it for which Iran was responsible;
o that those attacks were of such a nature as to be qualified as "armed
attacks” within the meaning of that expression in Art. 51 of the UN
Charter, and as understood in customary law on the use of force.
o that its actions were necessary and proportional to the armed attack
made on it, and
o that the platforms were a legitimate military target open to attack in
the exercise of self-defense.
 IN THIS CASE:
o Evidence indicative of Iranian responsibility for the attack on the Sea
Isle City, is not sufficient to support the contentions of the US.
o The burden of proof of the existence of an armed attack by Iran on the
US, in the form of the missile attack on the Sea Isle City, has not been
discharged.
 While USA has asserted that the Sea Isle City incident was "the latest in a series
of such missile attacks against US flag and other non-belligerent vessels in
Kuwaiti waters in pursuit of peaceful commerce", even taken cumulatively, these
incidents do not seem to constitute an armed attack on the US.
Attacks of 18 April 1988 on Nasr and Salman and "Operation Praying Mantis"
 Attacks on the Salman and Nasr platforms were not an isolated operation, aimed
simply at the oil installations, as had been the case with the attacks of
19 Oct. 1987
 Such attacks formed part of a much more extensive military action, designated
"Operation Praying Mantis", conducted by the US against what it regarded as
"legitimate military targets"
 Armed force was used, and damage done to a number of targets, including the
destruction of 2 Iranian frigates and other Iranian naval vessels and aircraft.
 IN THIS CASE:
o US was also not able to discharge the burden of proof that the USS
Samuel B. Roberts was the victim of a mine laid by Iran.
 Mines were being laid at the time by both belligerents in the
Iran-Iraq war, so that evidence of other mine-laying operations
by Iran is not conclusive as to responsibility of Iran for this
particular mine.
 The discovery of moored mines in the same area bearing serial
numbers matching other Iranian mines is highly suggestive, but
not conclusive.
 No attacks on other US-flagged vessels have been brought to
the Court's attention, other than the mining of the
USS Samuel B. Roberts itself.
o Such incident is not sufficed in itself to justify action in self-defense, as
amounting to an "armed attack".
 There is a possibility that the mining of a single military vessel
might be sufficient to bring into play the "inherent right of self-
defense".
 However, in view of all the circumstances, including the
inconclusiveness of the evidence of Iran's responsibility for the
mining of the USS Samuel B. Roberts, the attacks on the
Salman and Nasr platforms have not been shown to be
justifiably made in response to an "armed attack" on the US by
Iran.
Criteria of necessity and proportionality
 One aspect of the criteria of necessity and proportionality is the nature of the
target of the force used in self-defense.
 AS TO NECESSITY: Such attacks are not necessary
 o The evidence available is not enough to support the US’ contentions as
to the significance of the military presence and activity on the Reshadat
oil platforms
o No such evidence is offered in respect of the Salman and Nasr
complexes.
o Even accepting those contentions, the attacks made on the platforms
could not have been justified as acts of self-defence.
o The attacks on the platforms were not necessary to respond to both
attacks on the Sea Isle City and the mining of the USS Samuel B.
Roberts
 AS TO PROPORTIONALITY:
o As to attack of 19 Oct. 1987: ICJ might consider it proportionate if it
found that it was necessary in response to the Sea Isle City incident as
an armed attack committed by Iran
o As to attacks of 18 April 1988: They were found to be not
proportionate.
 Said attacks were conceived and executed as part of a more
extensive operation entitled "Operation Praying Mantis".
 As a response to the mining, by an unidentified agency, of a
single US warship, which was severely damaged but not
sunk, and without loss of life, neither "Operation Praying
Mantis" as a whole, nor even that part of it that destroyed the
Salman and Nasr platforms, can be regarded as a
proportionate use of force in self-defense.
7. W/N USA violated the Treaty of 1955, particularly Art. X, par. 1, of the 1955
Treaty on freedom of commerce and freedom of navigation  NO
 In the 1996 Judgment, ICJ observed that it did not then have to enter into the
question whether Art. X, par. 1, "is restricted to commerce between' the Parties"
 However, it is now common ground bet. the parties that Art. X, par. 1 is in terms
limited to the protection of freedom of commerce "between the territories of
the two High Contracting Parties".
o It is oil exports from Iran to the US that are relevant to the case, not
such exports in general.
 In destroying the platforms, whose function, taken as a whole, was precisely to
produce and transport oil, the military actions made commerce in oil, at that
time and from that source, impossible, and to that extent prejudiced freedom
of commerce.
 While the oil, when it left the platform complexes, was not yet in a state to be
safely exported, the fact remains that it could be already at that stage destined
for export, and the destruction of the platform prevented further treatment
necessary for export.
 The protection of freedom of commerce under the 1955 Treaty applied to the
platforms attacked by the US, and the attacks thus impeded Iran's freedom of
commerce.
 HOWEVER, at the time of those attacks, no commerce between the
territories of Iran and the US in respect of oil produced by those platforms
was in effect.
o As to Reshadat platforms: Platforms were under repair as a result of
an earlier attack on them by Iraq
 Consequently, they were not engaged in, or contributing to,
commerce between the territories of the Parties.
o As to Salman and Nasr platforms: There was an embargo imposed by
U.S. E.O. 12613 on Oct. 29, 1987 which prohibited the import into the
US of most goods (including oil) and services of Iranian origin.
 As a consequence, no commerce between the territories of the
Parties that could be affected, and consequently no breach of
the Treaty protecting it.
 While petroleum products derived from Iranian crude oil were still reaching the
US during such period, this is still not “commerce” contemplated by the provision.
 What is determinative is the nature of the successive commercial transactions
relating to the oil, rather than the successive technical processes that it
underwent (Iran  West Europe  US).
[re: US’ arguments protection under treaty]
 In order to enjoy the protection provided by that text, the commerce or the
navigation is to be between the territories of US and Iran.
 US bears the burden of proof that the vessels which were attacked were
engaged in commerce or navigation between the territories of the United States
and Iran.
 IN THIS CASE: None of the vessels described by US as being damaged by
Iran's alleged attacks were engaged in commerce or navigation "between
the territories of the two High Contracting Parties".
RULING:
 Actions of USA against Iranian oil platforms on 19 Oct. 1987 and 18 Apr. 1988
cannot be justified as measures necessary to protect the essential security
interests of USA under Art. XX, par. 1 (d), of the 1955 Treaty of Amity, Economic
Relations and Consular Rights between USA and Iran.
 Claim of Iran for reparation also cannot be upheld
o Court cannot uphold the submission of Iran that those actions constitute
a breach of the obligations of USA under Art. X, par. 1, of that Treaty,
regarding freedom of commerce between the territories of the parties,
and that, accordingly, the
 Counter-claim of USA for reparation also cannot be upheld
o Counter-claim of USA concerning the breach of the obligations of the
Iran under Art. X, par. 1, of the above-mentioned 1955 Treaty, regarding
freedom of commerce and navigation between the territories of the
parties, cannot be upheld

[91] LEGAL CONSEQUENCES OF A CONSTRUCTION OF A WALL IN THE
OCCUPIED PALESTINIAN TERRITORY – ADVISORY OPINION (2004) 5
TOPIC: Use of Force
SUMMARY: The UNGA requested an advisory opinion re: Israel’s construction of a
wall within the Occupied Palestinian Territory.
DOCTRINE: ‘The authority of the legitimate power having in fact passed into the
hands of the occupant, the latter shall take all the measures in his power to restore
and ensure, as far as possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country.’
International humanitarian law contains provisions enabling account to be taken of
military exigencies in certain circumstances’ and that ‘the military exigencies
contemplated by these texts may be invoked in occupied territories even after the
general close of the military operations that lead to their occupation.’
FACTS:
● The 10th Emergency Special Session of the UNGA (General Assembly) was
first convened in the aftermath of a rejection by the UN Security Council
(UNSC) of two draft resolutions concerning certain Israeli settlements in the
Occupied Palestinian Territory.
o The emergency special session was requested by a letter from the
Chairman of the Arab group, in order to discuss “illegal Israeli
actions in occupied East Jerusalem and the rest of the
Occupied Palestine Territory, in particular the construction of
settlements in that territory.
o Resolution ES-10/2 was adopted, acceding to the request, and also
condemning the illegal Israeli actions.
● The 10th Emergency Special Session was subsequently adjourned
temporarily.
o In the meantime, the Chairman of the Arab Group also made a
request of the UNSC to weigh in on the issues and take
necessary measures.
o This letter was accompanied by a draft resolution for
consideration by the Council which condemned the
construction of the wall as illegal as it departs from the
Armistice Line of 1949
o The resolution, however, was not adopted due to a negative vote
by one of the permanent members.
5
Original digest by Group 6. Thank you!!
● A resumption of the 10th Emergency Special Session was then requested.
The special session resumed.
● During these special sessions, the UNGA adopted resolution ES-10/13
which demanded that the construction be stopped, and considered the
construction as contradictory to the relevant provisions of
international law.
o The resolution also requested the UN Sec-Gen. to make periodical
reports as to Israel’s compliance with the resolution.
● The special session was once again adjourned temporarily.
o Meanwhile, pursuant to the request, the Sec-Gen filed the report
regarding the matter.
● On the other hand, the UNSC adopted Resolution No. 1515 (2003), also
known as the “Quartet Performance- based Roadmap to a Permanent
Two-State Solution to the Israeli-Palestinian Conflict.”
o Under the resolution, the quartet was composed of representatives
from the US, EU, Russia and the UN.
o It called on all involved parties to fulfill their obligations under the
Roadmap in cooperation with the quartet in order to resolve the
matter.
o It should be noted, however, that the Roadmap did NOT contain
any specific provision regarding the construction of the wall.
● The special session once again resumed, and it was then that the resolution
(ES-10/14) requesting for the advisory opinion from the ICJ was adopted.
The resolution posed the following question for the ICJ‟s advisory opinion:
o What are the legal consequences arising from the construction
of the wall being built by Israel, the occupying Power, in the
Occupied Palestinian Territory, including in and around East
Jerusalem, as described in the report of the Secretary-General,
considering the rules and principles of international law,
including the Fourth Geneva Convention of 1949, and relevant
Security Council and General Assembly resolutions?
ISSUES/HOLDING/RATIONALE:
1. WON the ICJ has jurisdiction (YES)
ULTRA VIRES ACT? Was it acting beyond its authority when UNGA acted given the
active engagement of the UNSC?
● There is no dispute that the subject of the request for an advisory opinion
falls within the competence of the UNGA, as provided in the UN Charter
(Charter for brevity).
● However, Art. 12 Par. 1 of the Charter provides the ff.: “While the Security
Council is exercising in respect of any dispute or situation the functions
assigned to it in the present Charter, the General Assembly shall not make
any recommendation with regard to that dispute or situation unless the
Security Council so requests.”
 ● In this case, it has been argued that the adoption of the resolution ES-10/14
by the UNGA was ultra vires, per Art. 12.
● By the practice of the UN, there are two existing interpretations as to
the limit that Art. 12 imposes on the UNGA vis-à-vis the UNSC.
o Old Interpretation: The UNGA could not make a recommendation
on a question concerning the maintenance of international peace
and security while the matter remained on the UNSC‟s agenda.
o New and Current Interpretation: The words “is exercising the
functions” is now interpreted to mean as “is exercising the functions
at this moment.” Therefore, as long as the UNSC is not currently
acting on the matter, the UNGA is free to make recommendations
as to the matter.
● Given this new, evolved interpretation, it must be held that the UNGA
did not act ultra vires, per Art. 12.
o It must also be noted that the action of the UNGA in special
session was brought about by the UNSC‟s inability to take a
decision on the matter due to negative votes by one of the
permanent members.
o It must also be remembered that during the duration of the
Emergency Special Session, the UNGA can adopt any
resolution falling within the subject matter for which the
special session had been convened, including issuance of a
resolution requesting the Court’s opinion on a matter.
Does the matter raised involve a legal question given the question’s imprecision and
abstract nature? NO.
● It has been contended that in order for the question to properly constitute a
legal question, it must be reasonably specific; otherwise, it would not be
capable of being addressed by a response of the ICJ.
● The question alone, it has been contended, is already susceptible of two
interpretations, and hence deprives the question of a legal character.
o It may first be interpreted as a request for the Court to determine
whether the construction of the wall is illegal or not, and then to
give its opinion on the consequences of such illegality
o The second interpretation is that the Court should already assume
the illegality of the construction and then give its opinion on the
legal consequences.
● It has also been contended that the question is imprecise and abstract, in
that it fails to specify whether the Court is being asked to address the legal
consequences for the UNGA or some other organ of the UN, for the member
States of the UN, Israel, Palestine, or some combination of the above, or
some other different entity.
ICJ: The lack of clarity in crafting the question does not the deprive it of
jurisdiction. It will only require clarification in interpretation, as had been done
in past cases.
● The Court will only have to identify the existing principle and rules,
interpret and apply them, thus offering a reply to the question posed,
based on law.
● The Court does not consider the abstract nature of the question submitted
before it to be one that raises an issue of jurisdiction. In the Legality of
Threat or Use case, the Court has stated that it may give an advisory opinion
on any legal question, abstract or otherwise.
Will the political nature of the matter deprive it of jurisdiction? NO
● The Court does not also accept the view that it is to be deprived of
jurisdiction just because of the “political” character of the question posed.
Such aspect of the question submitted does not suffice to deprive the Court
of a competence expressly conferred upon it by the ICJ Statute.
o Legality of Threat or Use case: “the political nature of the motives
which may be said to have inspired the request and the political
implications that the opinion given might have are of no relevance
in the establishment of its jurisdiction to give such an opinion.
2. WON it is proper for the ICJ to exercise its jurisdiction (YES)
There is NO basis for the ICJ to decline to exercise its jurisdiction.
While Art. 65 of the ICJ Statute provides that “The Court may give an advisory
opinion” (which denotes that the power of the Court is discretionary), in actual
practice, the ICJ has never declined to respond to a request for an advisory
opinion.
● In the rare cases that the Court did decline to exercise jurisdiction, it
was based on actual lack of jurisdiction (Legality of the Use by a State of
Nuclear Weapons in Armed Conflict), or in a special circumstance where the
dispute was already existing, the States involved were non- members of the
League of Nation, and both objected to the proceedings and refused to take
part in any way (PCIJ case of Status of Eastern Carelia Advisory Opinion).
Is it proper given that the request concerns a contentious matter between Israel and
Palestine, and that Israel has not consented to the exercise of jurisdiction?
● ISRAEL: the matter with the construction of the wall is but an integral part of
the wider Israeli-Palestinian dispute.
o Israel has NOT consented to the settlement of this wider dispute by
the Court, nor through any other means of compulsory adjudication.
o On the contrary, it insists that the parties have repeatedly agreed
that the dispute is to be settled with negotiations, with a possible
agreement to have arbitration as a recourse.
● ICJ: The lack of consent to the Court’s contentious jurisdiction by
interested States has NO bearing on the Court’s jurisdiction to give an
Advisory Opinion.
 o This is mainly because of the advisory character of the Court’s
reply, such that it has no binding force
o Given this non-binding nature of the advisory opinion, consent is
not the basis of the Court’s jurisdiction, unlike in contentious cases
where consent IS the basis.
o The Court’s Opinion, moreover, is not given to States but to the
organ entitled to request for it.
o Even differing views on the legal consequences will not deprive the
Court of jurisdiction as it had already stated in the Namibia Advisory
Opinion that “differences of views on legal issues have existed in
practically every advisory proceeding,
▪ As regards the request for an advisory opinion now before
it, the Court acknowledges that Israel and Palestine have
expressed radically divergent views on the legal
consequences of Israel's construction of the wall.
o NOTE: The Court in the Western Sahara Advisory Opinion,
however, clarified that lack of consent may render the giving of an
advisory opinion as incompatible with the Court’s judicial character
Is it improper because it may impede a political and negotiated solution to the
conflict? Will it undermine the UNSC’s Roadmap? NO.
It does not impede the political and negotiated solution, it will only be and
additional point to consider.
● It has been contended by several States that the issuance of the advisory
opinion could impede a possible political and negotiated solution. Moreover,
it may also undermine the scheme that the „Roadmap‟ (issued by the
UNSC) has set out.
● ICJ: In the Legality of Threat or Use case, the Court has stated that it is
aware that no matter what might be its conclusions in any advisory
opinion, such would have relevance for continuing the debate in the
UNGA, and would serve as an additional point to consider in
negotiations. “Beyond that, the effect of the opinion is a matter of
appreciation.”
● As to the Roadmap, the Court notes that while it constitutes a
negotiating framework for Israel and Palestine, it is not clear how the
Court’s reply would influence those negotiations. Even the participants
in the proceedings have expressed differing views on the potential
impact of the ad op. Hence, the Court cannot regard this factor as a
compelling reason to decline an exercise of its jurisdiction.
● Even the fact that the construction of the wall is only a limited aspect of the
wider dispute, and hence cannot be addressed properly in the proceedings
at hand, is not a compelling reason. At the same time, this is the very
question
Does the Court have the requisite facts and evidence to reach its conclusions?
Yes. It has sufficient info.
● ISRAEL: Based on the Advisory Opinion on the Interpretation of Peace
Treaties with Bulgaria, Hungary and Romania, the Court cannot give an
opinion on issues which raise questions of fact that cannot be elucidated
without hearing all parties to the conflict.
o Israel specifically argues that this task to inquire into the matter is
complicated by the fact that Israel alone possesses much of the
necessary information and has stated that it has chosen not to
address the merits.
o Confronted with factual issues that are impossible to clarify, Israel
argues that the Court should decline to exercise its jurisdiction.
● ICJ: The question of sufficiency of evidence is decided in a case-to-
case basis. What is decisive is “whether the Court has sufficient
information and evidence to enable it to arrive at a judicial conclusion
upon any disputed questions of fact.”
o In the present case, the Court has the report of the Sec-Gen,
reports of special rapporteurs, and competent organs of the UN.
o The participants, through the written statements they submitted,
have also included relevant information.
o Hence, the Court finds that it has sufficient information and
evidence to enable it to give the advisory opinion requested by the
General Assembly.
Might it be improper because the advisory opinion lacks any useful purpose?
● Contention: the General Assembly would not need an opinion of the Court
because it has already declared the construction of the wall to be illegal and
has already determined the legal consequences by demanding that Israel
stop and reverse its construction, and further, because the General
Assembly has never made it clear how it intended to use the opinion
● ICJ: Advisory opinions have the purpose of furnishing to the
requesting organs, the elements of law necessary for them in their
action.
o Legality of the Threat or Use of Nuclear Weapons: “It is not for the
Court itself to purport to decide whether or not an advisory opinion
is needed by the UNGA for the performance of its functions. The
UNGA has the right to decide for itself on the usefulness of an
opinion in the light of its own needs.”
o Hence, the Court cannot decline to answer the question submitted,
based on the ground that its opinion would lack any useful purpose.
The Court cannot substitute its assessment of the usefulness of the
opinion requested for that of the organ that seeks such opinion,
namely the General Assembly.
Does it violate the principle of “one must come to Court with clean hands?‟ (since
Palestine was allegedly responsible for violent attacks against Israel and its
population)
 ● ICJ: This principle is inapplicable since it is the UNGA who requested
the advisory opinion, and that such opinion shall be given to it, and not
to any other State or entity.
3. What are the legal consequences of the Israel’s construction of the wall in
the Occupied Palestinian Territory?
Court: Israel, with its construction of the wall, has been in violation of
international law. Citing:
● Humanitarian Provisions of the Fourth Geneva Convention of 1907
o On Applicability: While Israel is not a State party to this convention,
the Court observes that in the International Military Tribunal of
Nuremburg, it has been declared that the rules in the
Convention were “recognized by all civilized nations and were
regarded as being declaratory of the laws and customs of
war.”
▪ That the provisions of the Fourth Hague Convention
has attained the status of customary international law
is a fact recognized by all the participants in the
proceedings before the Court.
▪ Moreover both States involved had already engaged in
acts that recognize the applicability of the Fourth Geneva
Convention:
● For Palestine, it has already made a unilateral
undertaking to apply the said Convention, with
Switzerland as the depositary State.
● As for Israel, it had already made issuances and
committed acts that indicate their assent to the
application of the Convention within the occupied
territories. Israel’s Supreme Court had also
recognized the binding force of the Convention
upon it.
o Legal Consequence: Israel’s construction of the wall and the
creation of settlements are in violation of Art. 49 Par. 6 of the
Convention, which prohibits the transfer of the civilian
population of the Occupying Power into the occupied territory.
▪ While Israel may insist that the construction of the wall is
temporarily and does not constitute an annexation of the
occupied territory, the Court “cannot remain indifferent to
certain fears expressed to it that” the wall will “prejudge
the future frontier between Israel and Palestine.”
▪ The Court considers that the construction of the wall and
its associated régime create a "fait accompli" on the
ground that could well become permanent, in which case,
and notwithstanding the formal characterization of the wall
by Israel, it would be tantamount to de facto annexation.
▪ There is also a risk of further alterations to the
demographic composition of the Occupied Palestinian
Territory resulting from the construction of the wall
inasmuch as it is contributing to the departure of
Palestinian populations from certain areas.
▪ The Court has also found that the acts of Israel has
violated certain provisions of the Convention:
● Art 47 - on deprivation of the benefits of present
Convention
● Art. 49 - on forcible transfers of population
● Art. 52 - right to employment of occupied citizens
Art. 53 - destruction of public and/or private
property in the occupied territory, and
● Art. 59 - provision of relief for occupied citizens
● [RELEVANT] UN Charter:
o On Applicability: The Court recalls the customary principles laid
down in Article 2, par. 4 of the UN Charter, which states: “All
Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any State, or in any other manner
inconsistent with the Purposes of the United Nations.”
o UN General Assembly Resolution 2625 (XXV) also prohibits the
threat or use of force and emphasize the illegality of any
territorial acquisition by such means.
o Nicaragua v. US: the principles as to the use of force
incorporated in the Charter reflect customary international
law; the same is true of its corollary entailing the illegality of
territorial acquisition resulting from the threat or use of force.
o The Court further cited the principle of self-determination of
peoples, as enshrined in the Charter and reaffirmed by
resolution 2625 (XXV).
● International Covenant on Civil and Political Rights
o On Applicability: In the Legality of the Threat or Use case, the
Court rejected the argument that the Covenant applies only in
time of peace, explaining that the protection of the rights
involved (civil and political) under the covenant do not cease
in times of war.
▪ Court considers that the protection offered by human
rights conventions does not cease in case of armed
conflict, Save through the effect of provisions for
derogation of the kind to be found in Article 4 of the
International Covenant on Civil and Political Rights.
▪ The Court considers that the International Covenant on
Civil and Political Rights is applicable in respect of acts
done by a State in the exercise of its jurisdiction outside its
own territory.
o Legal Consequences: Israel’s acts have violated several
provisions of the Covenant:
 ▪ Art. 9 – Right to freedom and security
▪ Art. 17 – Right to freedom from arbitrary or unlawful
interference with one’s privacy
▪ Art. 12 – along with the Mandate for Palestine, this calls
for freedom in movement and in choice of residence. This
also takes into account the holy places present in the
area, which calls for the responsible State to allow
freedom of access, subject only to needs of order and
security.
● International Covenant on Economic, Social and Cultural Rights
o Contains no provision on its scope of application.
o On Applicability:
▪ In the exercise of the powers available to it on this basis,
Israel is bound by the provisions of the International
Covenant on Economic, Social and Cultural Rights.
Furthermore, it is under an obligation not to raise any
obstacle to the exercise of such rights in those fields
where competence has been transferred to Palestinian
authorities.
o Legal Consequences: Israel is found to have impeded the
exercise the Palestinians’ the right to work (Arts. 6 and 7);
protection and assistance accorded to the family and to
children and young persons (Art. 10); the right to an adequate
standard of living, including adequate food, clothing and
housing;, and the right "to be free from hunger" (Art. 11); the
right to health (Art. 12); the right to education (Arts. 13 and 14).
● UN Convention on the Rights of a Child
o On Applicability: Art. 2 of this Convention provides that the
State parties shall respect and ensure the rights set forth to
each child within their jurisdiction. The Convention is
therefore applicable.
o Legal Consequences: (similar provisions with ICESCR; see
consequences above)
● On Validity by Self-Defense
o ICJ: Since Israel does not claim that the attacks against it are
imputable to a foreign State, Art. 51 (self-defense) of the UN
Charter finds no application here.
To sum up, the Court, from the material available to it, is not convinced that the
specific course Israel has chosen for the wall was necessary to attain its
security objectives. The wall, along the route chosen, and its associated régime
gravely infringe a number of rights of Palestinians residing in the territory
occupied by Israel, and the infringements resulting from that route cannot be
justified by military exigencies or by the requirements of national security or
public order. The construction of such a wall accordingly constitutes breaches
by Israel of various of its obligations under the applicable international
humanitarian law and human rights instruments.
4. What are the obligations of Israel
● Comply with the international obligations it has breached by the construction
of the wall in the Occupied Palestinian Territory
● Put an end to the violation of its international obligations flowing from the
construction of the wall in the Occupied Palestinian Territory.
● Cease forthwith the works of construction of the wall being built by it in the
Occupied Palestinian Territory, including in and around East Jerusalem.
● Dismantle forthwith of those parts of that structure situated within the
Occupied Palestinian Territory, including in and around East Jerusalem.
● Repeal or render ineffective all legislative and regulatory acts adopted with a
view to its construction, and to the establishment of its associated régime
except in so far as such acts, by providing for compensation or other forms
of reparation for the Palestinian population, may continue to be relevant for
compliance by lsrael with the obligations.
● Make reparation for the damage caused to all the natural or legal persons
concerned.
● Return the land, orchards, olive groves and other immovable property seized
from any natural or legal person for purposes of construction of the wall in
the Occupied Palestinian Territory.
o In the event that such restitution should prove to be materially
impossible, Israel has an obligation to compensate the persons in
question for the damage suffered.
5. What are the obligations of all States
● Not to recognize the illegal situation resulting from the construction of the
wall in the Occupied Palestinian Territory, including in and around East
Jerusalem.
● Not to render aid or assistance in maintaining the situation created by such
construction.
● To see to it that any impediment, resulting from the construction of the wall,
to the exercise by the Palestinian people of its right to self-determination is
brought to an end.
● All States parties to the Geneva Convention relative to the Protection of
Civilian Persons in Time of War of 12 August 1949 are under an obligation,
while respecting the United Nations Charter and international law, to ensure
compliance by lsrael with international humanitarian law as embodied in that
Convention.
● United Nations, and especially the General Assembly and the Security
Council, should consider what further action is required to bring to an end
the illegal situation resulting from the construction of the wall and the
associated régime, taking due account of the present Advisory Opinion.
RULING:
1. Finds that it has jurisdiction to give the advisory opinion requested;
2. Decides to comply with the request for an advisory opinion;
3. Replies in the following manner to the question put by the General
Assembly:
a. The construction of the wall being built by Israel, the occupying
Power, in the Occupied Palestinian Territory, including in and
around East Jerusalem, and its associated régime, are contrary to
international law ;
b. Israel is under an obligation to terminate its breaches of
international law; it is under an obligation to cease forthwith the
works of construction of the wall being built in the Occupied
Palestinian Territory, including in and around East Jerusalem, to
dismantle forthwith the structure therein situated, and to repeal or
render ineffective forthwith all legislative and regulatory acts
relating thereto, in accordance with paragraph 151 of this Opinion;
c. Israel is under an obligation to make reparation for al1 damage
caused by the construction of the wall in the Occupied Palestinian
Territory, including in and around East Jerusalem;
d. All States are under an obligation not to recognize the illegal
situation resulting from the construction of the wall and not to
render aid or assistance in maintaining the situation created by
such construction; all States parties to the Fourth Geneva
Convention relative to the Protection of Civilian Persons in Time of
War of 12 August 1949 have in addition the obligation. while
respecting the United Nations Charter and international law, to
ensure compliance by Israel with international humanitarian law as
embodied in that Convention;
e. The United Nations, and especially the General Assembly and the
Security Council, should consider what further action is required to
bring to an end the illegal situation resulting from the construction of
the wall and the associated regime, taking due account of the
present Advisory Opinion.

[92] ARMED ACTIVITIES ON THE TERRITORY OF CONGO (DRC v. UGANDA)
ICJ | December 19, 2005
TOPIC: State Responsibility
OFFICIAL SUMMARY:
https://www.icj-cij.org/public/files/case-related/116/116-20051219-JUD-01-00-
EN.pdf
SUMMARY: The Democratic Republic of the Congo (DRC) was involved in a civil war.
Uganda, Rwanda, as well as other countries were all helping various rebel groups
which were fighting to overthrow the DRC's government. At this time, various other
rebel groups were hiding in the DRC and launching attacks at Uganda's governments.
The DRC brought a case to the International Court of Justice (ICJ), with the claim that
Uganda was involving itself an internal DRC conflict. UGANDA made the argument
that they were only protecting themselves from anti-Uganda rebel groups that were
being given safe harbor in the DRC. The argument stated that this would count as
self-defense under Article 51 of the United Nations Charter. [relevant] Also, as
regards the imputation of state responsibility on the part of Uganda, UGANDA
asserts that it should not be held responsible for the violations of its armed forces
because they acted contrary to instructions.
ICJ ruled in favor of the DRC holding that Uganda’s claim of self-defense could not
apply because it failed to meet the requisites, that Uganda violated the principle of
non-intervention and that Uganda is responsible for the acts of its military. [Relevant]
Then, as regards state responsibility, ICJ held that the conduct of any organ of a
State (in this case military forces and its personnel) must be regarded as an act of
that State.
DOCTRINE: On Article 2(4), U.N. Charter — All Members shall refrain in their
international relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.
● The article prohibits not only the use of force, but also the threat of force.
However, the threat may be justified by the right of self-defense. The
lawfulness of the threat derives from an assessment of the envisaged force.
On Right of Self-Defense — Prerequisites of this right:
a. armed attack – there should be a “significant level” of force,
b. the action must be necessary and proportionate – there are no additional or
retaliating actions, only those enough to repel the aggression.
Collective self-defense is explicitly allowed by the U.N. Charter. Although a treaty is
not necessary, a formal request and consent by the state under attack are required.
[Relevant] The conduct of any organ of a State (in this case military forces and its
personnel) must be regarded as an act of that State.
● IN THIS CASE, The ICJ found that massive international human rights law
(IHRL) violations and grave breaches of international humanitarian law
(IHL) were committed by Ugandan forces in DRC and that Uganda was at all
times responsible for all activities of its military forces.
FACTS:
● This case involves the Congo War. Two ethnic tribes, the Hutu and the Tutsi
have been engaged in centuries-long ethnic strife.
● 1960s to 1990s – Zaire (Congo), under the dictator Mobutu, experienced
chronic economic collapse brought about by systemic corruption.
● 1995 – Rwandan genocide by the Tutsi majority pushed Hutu refugees into
Zaire.
● 1996 – Hutu, based in Eastern Zaire, began conducting cross-border raids on
Rwanda.
● Rwanda took this as a violation on their state sovereignty. With active
support from Uganda, Rwanda, and Angola, the Tutsi rebel leader (Zaire)
 Laurent-Desire Kabila launched a large-scale assault which eventually
resulted in the overthrow of the Mobutu government.
● The installment of Kabila as President did not change things. Chaos still
reigned. Kabila turned into the tyrant he had battled for three decades.
Millions have been reported dead as a result of the conflict.
● In 1997 – President Kabila came into power in the DRC, with the help of
Uganda and Rwanda.
● Initially, Ugandan and Rwandan forces were present in the DRC following
DRC’s invitation and consent.
● Then, the DRC’s relations with Uganda and Rwanda deteriorated, and on 28
July 1998, President Kabila announced the withdrawal of the DRC’s consent
to Rwandan military presence in the DRC.
● On 8 August 1998, Kabila accused both Ugandan and Rwandan forces of
invading the DRC. In June 2003, Ugandan forces completely withdrew from
the DRC.
● CONGO charges Uganda of acts of aggression (Article 1, Resolution 3314 of
the UN GA, 1974; ICJ jurisprudence; Article 2, par. 4 of UN Charter), repeated
violations of the Geneva Conventions of 1949, in flagrant disregard of
international humanitarian law in conflict zones, and massive human rights
violations:
1. by engaging in military and paramilitary activities against the DRC
and by occupying DRC territory and actively extending military,
economic and financial support to irregular forces operating in the
DRC, Uganda violated international law governing non-use of force,
peaceful settlement of disputes, respect of sovereignty, and non-
intervention;
2. by committing acts of violence against DRC nationals and
destroying their property, and by failing to prevent such acts by
persons under its control, Uganda violated international legal
obligations to respect human rights, including the obligation to
distinguish between civilian and military objectives during armed
conflict; and
3. by exploiting Congolese natural resources and pillaging DRC
assets and wealth, Uganda violated international law governing
rules of occupation, respect for sovereignty over natural resources,
right to self-determination of peoples, and the principles of non-
interference in domestic matters.
● UGANDA on the other hand made the argument that they were only
protecting themselves from anti-Uganda rebel groups that were being given
safe harbor in the DRC. The argument stated that this would count as self-
defense under Article 51 of the United Nations Charter.
ISSUES w/ HOLDING & RATIO:
[1] W/N Ugandan military operations are justified based on a right of self-defense
against the DRC. — NO.
● The ICJ had to determine if Ugandan military operations in August 1998 and
those from 11 September 1998 to 10 July 1999 could be justified on the
basis of self-defense. It concluded in the negative, and held that Ugandan
military operations since August 7, 1998, lacked the required consent and
amounted to an illegal use of force in DRC territory, which conversely gave
DRC the right of self-defence against Uganda.
● The ICJ held that for a State to rely on self defense, it must meet with the
conditions laid down in Article 51 of the UN Charter. Uganda did not meet
those requirements because:
1. Uganda did not demonstrate that it had been subjected to an
armed attack by the DRC. It had attributed armed attacks by the
ADF (a non-State armed group) to the DRC. The Court concluded
that there was no satisfactory proof of the involvement in these
attacks, direct or indirect, of the DRC.
2. Uganda justified its operations on the basis of “security needs that
are essentially preventative.” The ICJ held that Article 51 did not
permit States to use force to protect “perceived security interests”
beyond the parameters explicitly provided. In the former
circumstances “other means are available to a concerned State,
including, in particular, recourse to the Security Council.”
3. Uganda did not report to the Security Council events that it had
regarded as requiring it to act in self-defense.
[2] W/N Uganda violated the prohibition on non-intervention . — YES.
● The ICJ held that Ugandan military operations is engagement in an “unlawful
military intervention” and it was of “such a magnitude and duration” that this
intervention also constituted “a grave violation” of the prohibition on the use
of force in Article 2 (4) of the UN Charter.
[3] W/N Uganda was responsible for violations by MLC . — NO.
● The ICJ held that the requisite tests were not met for sufficiency of control
of paramilitaries, and therefore, Uganda was not responsible for violations of
the MLC (an armed group operating in the DRC).
 ● This is because the MLC was not:
1. an organ of Uganda;
2. exercising elements of governmental authority on Uganda’s behalf;
or
3. acting on the instructions of, or under the direction or control of
Uganda (See A. 4, 5 and 8 of Articles on Responsibility of States).
● However, Uganda violated international law principles relating to non-
intervention when it provided training and military support to the MLC (over-
all control).

[4 - RELEVANT] W/N Uganda was responsible for violations by its armed forces. —
YES.
● The ICJ found that massive international human rights law (IHRL) violations
and grave breaches of international humanitarian law (IHL) were committed
by Ugandan forces in DRC and that Uganda was at all times responsible for
all activities of its military forces.
○ The ICJ emphasized that the conduct of any organ of a State (in
this case military forces and its personnel) must be regarded as an
act of that State.
● UGANDA had argued it was not responsible for activities of the Ugandan
armed forces because: 1) they acted contrary to the instructions given; or 2)
exceeded their authority; and 3) did not act in the capacity of persons
exercising governmental authority.
○ The ICJ disagreed. It emphasized that under IHL, a party to an
armed conflict is responsible for all acts by persons forming part of
its armed forces.

RULING: UGANDA is responsible for the violations of its armed forces.