The Paquete Habana; the Lola ISSUE: Whether or not fishing vessels are exempt from seizure as
By: Isabelle Oca prize of war.
International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction as
often as questions of right depending upon it are duly presented for
their determination. For this purpose, where there is no treaty and
no controlling executive or legislative act or judicial decision, resort
must be had to the customs and usages of civilized nations, and, as
evidence of these, to the works of jurists and commentators, not for
the speculations of their authors concerning what the law ought to
be, but for trustworthy evidence of what the law really is.
FACTS: Each vessel was a fishing smack, fishing in and out of the
coast of Havana, sailed under the Spanish flag and was owned by a
Spanish subject of Cuban birth. The vessels caught fresh fish, put on
board as they are caught, kept and sold alive. They both contained
no ammunition, had no knowledge of the war or of any blockade.
The Paquete Habana left Havana on March 28, 1898 fished on Cape
San Antonio for 25 days and started to sail back to Havana,
containing 40 quintals of live fish. The vessel was captured by United
States gunboat Castine on April 25, 1898. The Lola left Havana on
April 11, 1898, stayed in Yucatan, fished there for 8 days, started
back to Havana with 10,000 lbs of fish. On April 26, 1898, she was
stopped by the US steamship Cincinnati, and warned not to go to
Havana, but was allowed to land in Bahia Honda which caused the
change in its route; however, the next morning, she was caught by
the US steamship Dolphin. Both vessels were brought by their
captors in the Key West, a libel for condemnation and her cargo as
prize of war were filed on April 27, 1898 and on May 30, 1898, a
final decree of condemnation and sale was entered, the Court not
being satisfied that as a matter of law, without ordinance, treaty of
proclamation, that fishing vessels of this kind were exempt from
seizure. Each vessel was sold by auction.
HELD: The US Supreme Court, speaking through Justice Gray ruled in
the affirmative. In arriving with the decision, the Court looked back
in the ancient usage of the among civilized nations, beginning
centuries ago, gradually ripening into a rule of international law that
coast fishing vessels, pursuing vocation of catching and bringing in
fresh fish, have been recognized as exempt from capture as prize of
war. The earliest acts of the government on the subject mentioned
in the books are in 1403 and 1406 by Henry IV. Pursuant to a treaty
between him and the King of France. The treaty made on October 2,
1521 between Emperor Charles V and Francis I also reflected the
protection granted by the government on fishing vessels. France has
set an example of alleviating the evils of war in favor of all coast
fishermen.
The same doctrine has been familiar with the United States since
the War of Independence. In the treaty of 1785, between the US
and Prussia, Art 23 thereof stated that "all women and children,
scholars of every faculty, cultivators of the earth, artisans,
manufacturers, and fishermen, unarmed and inhabiting unfortified
towns, villages, or places, and in general all others whose
occupations are for the common subsistence and benefit of
mankind, shall be allowed to continue their respective
employments, and shall not be molested in their persons, nor shall
their houses or goods be burnt or otherwise destroyed, nor their
fields wasted by the armed force of the enemy, into whose power,
by the events of war, they may happen to fall; but if anything is
necessary to be taken from them for the use of such armed force,
the same shall be paid for at a reasonable price."
This review of the precedents and authorities on the subject
demonstrate that at the present day, by the general consent of the
civilized nations of the world, and independently of any express
treaty or other public act, it is an established rule of international
law, founded on considerations of humanity to a poor and
industrious order of men, and of the mutual convenience of
belligerent states, that coast fishing vessels, with their implements
and supplies, cargoes and crews, unarmed and honestly pursuing
their peaceful calling of catching and bringing in fresh fish, are
exempt from capture as prize of war.
The exemption, of course, does not apply to coast fishermen or their
vessels if employed for a warlike purpose, or in such a way as to give
aid or information to the enemy; nor when military or naval
operations create a necessity to which all private interests must give
way. Nor has the exemption been extended to ships or vessels
employed on the high sea in taking whales or seals or cod or other
fish which are not brought fresh to market, but are salted or
otherwise cured and made a regular article of commerce
This rule of international law is one which prize courts administering
the law of nations are bound to take judicial notice of, and to give
effect to, in the absence of any treaty or other public act of their
own government in relation to the matter.
By the practice of all civilized nations, vessels employed only for the
purposes of discovery or science are considered as exempt from the
contingencies of war, and therefore not subject to capture. It has
been usual for the government sending out such an expedition to
give notice to other powers; but it is not essential.
NORTH SEA CONTINENTAL SHELF CASES
(Federal Republic of Germany v. Denmark; Federal Republic of
Germany v. Netherlands) International Court of Justice 1969 I.C.J.
3
By: Jesse Dario Razon
Public International Law; Principle of Non-Intervention- requires that
every State has a right to conduct its affairs without outside
interference. In other words, the principle “…forbids States or groups
of States to intervene directly or indirectly in internal or external
affairs of other States.” This is a corollary of the principle of
sovereign equality of States. The Court held that: “A prohibited
intervention must accordingly be one bearing on matters in which
each State is permitted, by the principle of State sovereignty to
decide freely. One of these is the choice of a political, economic,
social and cultural system, and the formulation of foreign policy.
Intervention is wrongful when it uses methods of coercion in regard
to such choices, which must remain free ones. The element of
coercion, which defines, and indeed forms the very essence of,
prohibited intervention, is particularly obvious in the case of an
intervention which uses force, either in the direct form of military
action, or in the indirect form of support for subversive or terrorist
armed activities within another State”.
The case involved the delimitation of the continental shelf areas in
the North Sea between Germany and Denmark and Germany and
Netherlands beyond the partial boundaries previously agreed upon
by these States. The parties requested the ICJ to decide the
principles and rules of international law that are applicable to the
above delimitation. The parties disagreed on the applicable
principles or rules of delimitation – Netherlands and Denmark relied
on the principle of equidistance (the method of determining the
boundaries in such a way that every point in the boundary is
equidistant from the nearest points of the baselines from which the
breath of the territorial sea of each State is measured). Germany
sought to get a decision in favor of the notion that the delimitation
of the relevant continental shelf is governed by the principle that
each coastal state is entitled to a just and equitable share
(hereinafter called just and equitable principle/method). Contrary to
Denmark and Netherlands, Germany argued that the principle of
equidistance was neither a mandatory rule in delimitation of the
continental shelf nor a rule of customary international law that was
not binding on Germany. The court was not asked to delimit – the
parties agreed to delimit the continental shelf as between their
countries, by agreement, after the determination of the ICJ on the
applicable principles.
FACTS: Denmark, the Netherlands, and Germany all had a dispute
over the boundaries of a shared continental shelf. Denmark and the
Netherlands both argued that the dispute should be resolved
according to principles of Article 6 of the Geneva Convention of
1958 on the Continental Shelf, which provided that in the absence
of agreement or special circumstances, a boundary line should be
determined by application of the “principle of equidistance.”
Germany was not a party to this Convention, but Denmark and the
Netherlands argued that the principle of equidistance still applied
because it was part of general international law, and particularly
customary international law.
ISSUES:
1. Did the United States violate its customary international law
obligation not to use force against another State, when it directly
attacked Nicaragua in 1983 and 1984 and when its activities resulted
in the use of force?
2. Did the United States breach its customary international law
obligation not to violate the sovereignty of another State, when it
directed or authorized its aircrafts to fly over the territory of
Nicaragua and because of acts?
HELD: As to the first issue, the United States violated its customary
international law obligation not to use force against another State
when it directly attacked Nicaragua in 1983 and 1984.
The Court held that an armed attack included:
(1) action by regular armed forces across an international
border; and
(2) “the sending by or on behalf of a State of armed bands,
groups, irregulars or mercenaries, which carry out acts of (sic)
armed force against another State of such gravity as to amount to
(inter alia) an actual armed attack conducted by regular forces, or its
(the State’s) substantial involvement therein”.
Note also that that he second point somewhat resembles Article
3(g) of the UNGA Resolution 3314 (XXIX) on the Definition of
Aggression.
The Court further held that:
Mere frontier incidents will not considered as armed attacks, unless,
because of its scale and effects, it would have been classified as an
armed attack had it been carried out by regular forces.
Assistance to rebels by providing weapons or logistical support did
not constitute an armed attack. Instead, it can be regarded as a
threat or use of force or an intervention in the internal or external
affairs of other States.
Under Article 51 of the UN Charter and under CIL – self-defence is
only available against a use of force that amounts to an armed
attack.
The ICJ confirmed the definition of an “armed attack” as proposed
in the Nicaragua case. Draft Articles on State Responsibility,
prepared by the International Law Commission, provides significant
guidance as to when acts of non-State actors may be attributed to
States. These articles, together with recent State practice relating
attacks on terrorists operating from other countries may have
widened the scope of an armed attack, and consequently, the right
of self-defence, envisaged by the ICJ.
As to the second issue, The Court held that the United States
breached its CIL obligation not to intervene in the affairs of another
State, when it trained, armed, equipped and financed the contra
forces or encouraged, supported and aided the military and
paramilitary activities against Nicaragua.
The Court held that:
The principle of non-intervention requires that every State has a
right to conduct its affairs without outside interference. In other
words, the principle “…forbids States or groups of States to
intervene directly or indirectly in internal or external affairs of other
States.” This is a corollary of the principle of sovereign equality of
States. The Court held that:
the economy and to weaken the political system with the aim to
coerce the Government of Nicaragua to accept various political
demands of the United States. The Court concluded that:
“…first, that the United States intended, by its support of
the contras, to coerce the Government of Nicaragua in respect of
matters in which each State is permitted, by the principle of State
sovereignty, to decide freely (see paragraph 205 above) ; and
secondly that the intention of the contras themselves was to
overthrow the present Government of Nicaragua… The Court
considers that in international law, if one State, with a view to the
coercion of another State, supports and assists armed bands in that
State whose purpose is to overthrow the government of that State,
that amounts to an intervention by the one State in the internal
affairs of the other, whether or not the political objective of the
State giving such support and assistance is equally far reaching.

“A prohibited intervention must accordingly be one bearing

on matters in which each State is permitted, by the principle of
State sovereignty to decide freely. One of these is the choice of a
political, economic, social and cultural system, and the formulation
of foreign policy. Intervention is wrongful when it uses methods of
coercion in regard to such choices, which must remain free ones.
The element of coercion, which defines, and indeed forms the very
essence of, prohibited intervention, is particularly obvious in the
case of an intervention which uses force, either in the direct form of
military action, or in the indirect form of support for subversive or
terrorist armed activities within another State”.

Nicaragua stated that the activities of the United States were aimed
to overthrow the government of Nicaragua, to substantially damage
The financial support, training, supply of weapons, intelligence and logistic contras in the course of their military or paramilitary operations in
support given by the United States to the contras violated the principle of Nicaragua. All the forms of United States participation mentioned above,
non-interference. “…(N)o such general right of intervention, in support of an and even the general control by the respondent State over a force with a
opposition within another State, exists in contemporary international law”, high degree of dependency on it, would not in themselves mean, without
even if such a request for assistance is made by an opposition group of that
further evidence, that the United States directed or enforced the
State”.
perpetration of the acts contrary to human rights and humanitarian law
The Court held that the United States did not devise the strategy, direct the alleged by the applicant State. Such acts could well be committed by
tactics of the contras or exercise control on them in manner so as to make members of the contras without the control of the United States. For this
their acts committed in violation of international law imputable to the conduct to give rise to legal responsibility of the United States, it would in
United States (see in this respect “Determining US responsibility for contra principle have to be proved that that State had effective control of the
operations under international law” 81 AMJIL 86). The Court concluded that military or paramilitary.”
“a number of military and paramilitary operations of the contras were
decided and planned, if not actually by United States advisers, then at least
in close collaboration with them, and on the basis of the intelligence and
logistic support which the United States was able to offer, particularly the
supply aircraft provided to the contras by the United States” but not all
contra operations reflected strategy and tactics wholly devised by the
United States.

“…the various forms of assistance provided to the contras by the United

States have been crucial to the pursuit of their activities, but is insufficient
to demonstrate their complete dependence on United States aid. On the
other hand, it indicates that in the initial years of United States assistance
the contra force was so dependent. However, whether the United States
Government at any stage devised the strategy and directed the tactics of
the contras depends on the extent to which the United States made use of
the potential for control inherent in that dependence. The Court already
indicated that it has insufficient evidence to reach a finding on this point. It
is a fortiori unable to determine that the contra force may be equated for
legal purposes with the forces of the United States…The Court has taken the
view (paragraph 110 above) that United States participation, even if
preponderant or decisive, in the financing, organizing, training, supplying
and equipping of the contras, the selection of its military or paramilitary
targets, and the planning of the whole of its operation, is still insufficient in
itself, on the basis of the evidence in the possession of the Court, for the
purpose of attributing to the United States the acts committed by the
I.C.J. Reports 1950, p. 266 November 20, 1950 Colombian-Peruvian Asylum already repudiated said convention by not ratifying. Lastly, the other basis
Case of the Colombian Government does not entail unilateral qualification.

Public International Law; Diplomatic Asylum; Right of qualification of the

nature of the offense as political or ordinary: claim to unilateral and
definitive qualification by the State granting Asylum—Lack of foundation of
such a claim in the absence of an agreement or of a customary rule to justify
it.

FACTS: On October 3, 1948, a military rebellion broke out in Peru. The

President issued a decree, in the recitals of which a political party, the
American People’s Revolutionary Alliance, was charged for organizing and
directing rebellion. The Head of the Judicial Department of Navy issued an
order requiring the Examining Magistrate to open an inquiry as to the facts
of constituting military rebellion. Thereafter, the Examining Magistrate
issued an order for opening a judicial proceeding against Haya de la Torre
and others. Haya de la Torre was prosecuted for the charge of rebellion.
Summons was published ordering him to appear. On January 3, 1949, he
sought asylum in the Columbian embassy of Lima. The following day,
Colombian Ambassador in Lima informed the Peruvian Government that an
asylum was granted in favor of Haya de la Torre and requested for a safe
conduct to enable the refugee to leave the country. The Peruvian
Government disputed the qualification and refused the safe conduct.
Colombian Government maintained that Bolivarian Agreement of 1911 on
Extradition, Havana Convention of 1928 on Asylum, Montevideo Convention
of 1993 on Political Asylum, and American International Law entitled it to
qualify the nature of the offense for the purpose of Asylum. And that the
Montevideo Convention specifically granted the Colombian Government to
grant unilateral qualification of asylum.

ISSUE: Whether or not the Colombian Government can unilaterally grant

Asylum.

RULING: NEGATIVE. The Montevideo Convention accepts the right of

unilateral qualification of a state. However, it was notratified by Peru. It
cannot also be reflected as customary international law by reason of its
low number of ratification. Likewise, the Peruvian Government has
Nicaragua v. United States
CitationI.C.J. 1984 I.C.J. 39
Brief Fact Summary. Nicaragua (P) brought a suit against the United States
(D) on the ground that the United States (D) was responsible for illegal
military and paramilitary activities in and against Nicaragua. The jurisdiction
of the International Court of Justice to entertain the case as well as the
admissibility of Nicaragua’s (P) application to the I.C.J. was challenged by
the United States (D).
Synopsis of Rule of Law. Nicaragua (P) brought a suit against the United
States (D) on the ground that the United States (D) was responsible for
illegal military and paramilitary activities in and against Nicaragua. The
jurisdiction of the International Court of Justice to entertain the case as well
as the admissibility of Nicaragua’s (P) application to the I.C.J. was challenged
by the United States (D).
Facts. The United States (D) challenged the jurisdiction of the I.C.J when it
was held responsible for illegal military and paramilitary activities in and
against Nicaragua (P) in the suit the plaintiff brought against the defendant
in 1984. Though a declaration accepting the mandatory jurisdiction of the
Court was deposited by the United States (D) in a 1946, it tried to justify the
declaration in a 1984 notification by referring to the 1946 declaration and
stating in part that the declaration “shall not apply to disputes with any
Central American State….”
Apart from maintaining the ground that the I.C.J lacked jurisdiction, the
States (D) also argued that Nicaragua (P) failed to deposit a similar
declaration to the Court. On the other hand, Nicaragua (P) based its
argument on its reliance on the 1946 declaration made by the United states
(D) due to the fact that it was a “state accepting the same obligation” as the
United States (D) when it filed charges in the I.C.J. against the United States
(D). Also, the plaintiff intent to submit to the compulsory jurisdiction of the
I.C.J. was pointed out by the valid declaration it made in 1929 with the I.C.J’s
predecessor, which was the Permanent Court of International Justice, even
though Nicaragua had failed to deposit it with that court. The admissibility
of Nicaragua’s (P) application to the I.C.J. was also challenged by the United
States (D).
Issue. (1) Is the jurisdiction to entertain a dispute between two states, if
they both accept the Court’s jurisdiction, within the jurisdiction of the
International Court of Justice?
(2) Where no grounds exist to exclude the application of a state, is the
application of such a state to the International Court of Justice admissible?
Held. (1) Yes. The jurisdiction of the Court to entertain a dispute between
two states if each of the States accepted the Court’s jurisdiction is within
the jurisdiction of the International Court of Justice. Even though Nicaragua
(P) declaration of 1929 was not deposited with the Permanent Court,
because of the potential effect it had that it would last for many years, it
was valid.
Thus, it maintained its effect when Nicaragua became a party to the Statute
of the I.C.J because the declaration was made unconditionally and was valid
for an unlimited period. The intention of the current drafters of the current
Statute was to maintain the greatest possible continuity between it and the
Permanent Court. Thus, when Nicaragua (P) accepted the Statute, this
would have been deemed that the plaintiff had given its consent to the
transfer of its declaration to the I.C.J.
(2) Yes. When no grounds exist to exclude the application of a state, the
application of such a state to the International Court of Justice is admissible.
The five grounds upon which the United States (D) challenged the
admissibility of Nicaragua’s (P) application were that the plaintiff failed
because there is no “indispensable parties” rule when it could not bring
forth necessary parties, Nicaragua’s (P) request of the Court to consider the
possibility of a threat to peace which is the exclusive province of the
Security Council, failed due to the fact that I.C.J. can exercise
jurisdiction which is concurrent with that of the Security Council, that the
I.C.J. is unable to deal with situations involving ongoing armed conflict and
that there is nothing compelling the I.C.J. to decline to consider one aspect
of a dispute just because the dispute has other aspects due to the fact that
the case is incompatible with the Contadora process to which Nicaragua (P)
is a party.
Discussion. Although the questions of jurisdiction and admissibility are
primarily based on the principle that the I.C.J. has only as much power as
that agreed to by the parties, these can be quite complicated. The 1946
declaration of the United States and the 1929 declaration of Nicaragua was
the main focus of the case on declaration and each of these declarations
pointed out the respective parties’ intent as it related to the I.C.J’s
jurisdiction.
I.C.J. Reports, Page 6, June 12, 1960 PORTUGAL, petitioner v. INDIA,
respondent CASE CONCERNING RIGHT OF PASSAGE OVER: INDIAN
TERRITORY (MERITS)
By: John Paulo Blay
Public International Law; Customary Law; a local custom may be established
between two states on the basis of long practice, which is prevailing over
general rule. Citing the elements laid down in the Case of North Sea
Continental Shelf Case that both state practice which is the objective
element and Opinio Juris which is the subjective element are the pre-
requisites for the formation of customary law rule.
FACTS: Portugal claimed its right subject to which it will be allowed to move
from Daman to and its enclaves and that won’t be counted as interference
with the territory of India. It also claimed that India has the right to hold its
territory subject to the duty that it will respect the integrity and sovereignty
of Portuguese government. India contended that the admission by
Portuguese government in itself suggests that it understands that the
territory it is demanding is under the control of Indian Government and
there is no immunity whatsoever to the Portuguese Government.
Portugal contention was also based on two treaties mainly the Treaty of
Poona which was signed in 1779 and the decrees which were issued by the
then Maratha king in the period of 1783 and 1785. India was however of a
different view, it said that the Treaty of 1779 was not of conclusive in nature
and was never obligated as a law by the Marathas. It said that the question
which really in discussion was whether the armed forces of Portuguese be
allowedto move to be its enclaves while risking the territory of India. It
stated that even if the treaty took effect it can’t be obligated as the practice
or the custom to move started after a long time after the treaty actually
took place.
CONTENTION BY BOTH THE PARTIES: Portugal contended that the Maratha
obligated themselves with the treaty of 1779, they had afree will while
entering into this treaty and were never forced to obligate themselves with
the conditions of the treaty. India contended that Treaty of Poona and the
two decrees which were signed by the Maratha ruler did not confer the
right of transfer of the territory in favour of Portuguese government, the
basic motto behind the treaty was just the revenue grant up to rupees
12000 and it was never meant to transfer its sovereignty over the assigned
village to the Portuguese government.
Against this Portugal contended that Article 17 of the Treaty was explicit in
its opinion that there is a transfer of immunity in favour of the Portuguese
government, They said there were lot of instances where the words used in
the treaty were as “perpetuity” and “in perpetual sovereignty” which means
indirectly means that the power was conferred on Portuguese government.
The court however came to a conclusion that the sovereignty has not
passed to the Portuguese just by the sake of a treaty. However the court
also looked at the fact that the position of Portuguese right changed
between pre and post British times.
As successors of the Marathas they never gave express immunity or
exercised any control over that part, as a conclusion the territory was under
the rule of the Portuguese government even after the British left India. It
has been contended by the Portugal that over the period of time they have
formed a local custom between the
two nation and India should follow the principle of International Law that
“customary international law prevails over general law” but the court
founded no merit in this regard and concluded that just because there has a
long prevailing practice, the thing needs to be converted into a customary
law which obligates both the parties and creates mutual rights and liabilities
over the states .
ISSUE: Whether or not Portugal has customary right over Indian Territory
when it comes to right of innocent passage
HELD: AFFIRMATIVE. The ICJ ruled that, the local custom may be established
between two states on the basis of long practice, which is prevailing over
general rule. Citing the elements laid down in the Case of North Sea
Continental Shelf Case that both state practice which is the objective
element and Opinio Juris which is the subjective element are the pre-
requisites for the formation of customary law rule.
While considering the question of law the court expressly directed that no
local custom can obligate any party if it never wished to create it, now
discussing the question that whether Portugal could actually claim the right
over the territory of India and can it be said that the Portuguese
government had control over the territory of India the court had a brief
looking at the claims of both the parties and discussion were held as to right
with respect to armed forces, police officials, other governmental and non-
governmental functionaries civil servants and goods in general.

The court came to a decisive conclusion which was more balanced one. It
laid that the territory was used by both the parties and was mutually used
by both the countries without any kind of restriction. As regards to the
perishable goods the court said that there was

regular passage of goods with any hindrance by the Indian Government over
that period of time expect on some occasion where they were subject to
certain customary revenue taxes. The court said that the occasion were
certain restriction were put at the time of Second World War and the
stoppage of transit of salt were reasonable in nature and were not
something to be vary of. No special taxes were imposed on the transit which
could signify that there was restriction from the beginning and which could
justify this unreasonable restriction put by Indian Government.

The court concluded by saying that with regard to individuals, other civil
bodies and adopted methods especially during the time of British are to
remain same and any restriction imposed on it will be regarded as
unreasonable and unjustified. The court viewed all this as a practice which
has been established as a law between countries and have bind the parties
together. It laid that the Portugal’s right to passage of Indian Territory exists
however the question related to armed forces and personals along with the
police were discussed separately and while looking at the instances of
various tensions that grew over the period of 1954, the court said that
though there were instances where such armed forces were allowed, but
that was a period when India was not ruled by its own government and by
looking at the present situations the court concludes that India subject to its
powers and under reasonable behaviour applied these restriction and it is
justified according to the law to do so as the right of prevention of one’s
own territory is provided to all the countries around the world and India is
no exception to it
ANGLO-NORWEGIAN FISHERIES CASE-
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Legality of the Threat or Use of Nuclear Weapons
OVERVIEW OF THE CASE
By a letter dated 19 December 1994, filed in the Registry on 6 January 1995,
the Secretary-General of the United Nations officially communicated to the
Registry a decision taken by the General Assembly, by its resolution 49/75 K
adopted on 15 December 1994, to submit to the Court, for advisory opinion,
the following question : “Is the threat or use of nuclear weapons in any
circumstance permitted under international law ?” The resolution asked the
Court to render its advisory opinion “urgently”. Written statements were
filed by 28 States, and subsequently written observations on those
statements were presented by two States. In the course of the oral
proceedings, which took place in October and November 1995, 22 States
presented oral statements.
On 8 July 1996, the Court rendered its Advisory Opinion. Having concluded
that it had jurisdiction to render an opinion on the question put to it and
that there was no compelling reason to exercise its discretion not to render
an opinion, the Court found that the most directly relevant applicable law
was that relating to the use of force, as enshrined in the United Nations
Charter, and the law applicable in armed conflict, together with any specific
treaties on nuclear weapons that the Court might find relevant.
The Court then considered the question of the legality or illegality of the use
of nuclear weapons in the light of the provisions of the Charter relating to
the threat or use of force. It observed, inter alia, that those provisions
applied to any use of force, regardless of the weapons employed. In
addition it stated that the principle of proportionality might not in itself
exclude the use of nuclear weapons in self-defence in all circumstances.
However at the same time, a use of force that was proportionate under the
law of self-defence had, in order to be lawful, to meet the requirements of
the law applicable in armed conflict, including, in particular, the principles
and rules of humanitarian law. It pointed out that the notions of a “threat”
and “use” of force within the meaning of Article 2, paragraph 4, of the
Charter stood together in the sense that if the use of force itself in a given
case was illegal — for whatever reason — the threat to use such force
would likewise be illegal.
The Court then turned to the law applicable in situations of armed conflict.
From a consideration of customary and conventional law, it concluded that
the use of nuclear weapons could not be seen as specifically prohibited on
the basis of that law, nor did it find any specific prohibition of the use of
nuclear weapons in the treaties that expressly prohibited the use of certain
weapons of mass destruction. The Court then turned to an examination of
customary international law to determine whether a prohibition of the
threat or use of nuclear weapons as such flowed from that source of law.
Noting that the members of the international community were profoundly
divided on the matter of whether non-recourse to nuclear weapons over
the past 50 years constituted the expression of an opinio juris, it did not
consider itself able to find that there was such an opinio juris. The
emergence, as lex lata, of a customary rule specifically prohibiting the use of
nuclear weapons as such was hampered by the continuing tensions
between the nascent opinio juris on the one hand, and the still strong
adherence to the doctrine of deterrence on the other. The Court then dealt
with the question whether recourse to nuclear weapons ought to be
considered as illegal in the light of the principles and rules of international
humanitarian law applicable in armed conflict and of the law of neutrality. It
laid emphasis on two cardinal principles : (a) the first being aimed at the
distinction between combatants and non-combatants ; States must never
make civilians the object of attack and must consequently never use
weapons that are incapable of distinguishing between civilian and military
targets while (b) according to the second of those principles, unnecessary
suffering should not be caused to combatants. It follows that States do not
have unlimited freedom of choice in the weapons they use. The Court also
referred to the Martens Clause, according to which civilians and combatants
remained under the protection and authority of the principles of
international law derived from established custom, the principles of
humanity and the dictates of public conscience.
The Court indicated that, although the applicability to nuclear weapons of
the principles and rules of humanitarian law and of the principle of
neutrality was not disputed, the conclusions to be drawn from it were, on
the other hand, controversial. It pointed out that, in view of the unique
characteristics of nuclear weapons, the use of such weapons seemed
scarcely reconcilable with respect for the requirements of the law applicable
in armed conflict. The Court was led to observe that “in view of the current
state of international law and of the elements of fact at its disposal, [it]
cannot conclude definitively whether the threat or use of nuclear weapons
would be lawful or unlawful in an extreme circumstance of self-defence, in
which the very survival of a State would be at stake”. The Court added,
lastly, that there was an obligation to pursue in good faith and to conclude
negotiations leading to nuclear disarmament in all its aspects under strict
and effective international control.
S.S. “WIMBLEDON” Judgment of 17 August 1923 (
History of the case.
An English steamship, the “Wimbledon”, time-chartered by the French
Company Les Affréteurs réunis, had been loaded at Salonica, in March 1921,
with a cargo of munitions and artillery stores consigned to the Polish Naval
Base at Danzig. When the vessel arrived in the course of its voyage at the
entrance to the Kiel Canal, it was refused permission to pass through by the
Director of Canal Traffic, who based his action on the German neutrality
orders issued in connection with the Russo-Polish war and on instructions
received by him. The French Ambassador at Berlin requested the German
Government to withdraw this prohibition and to allow the S.S. “Wimbledon”
to pass through the Canal, in conformity with Article 380 of the Treaty of
Versailles. In reply, he was informed that the German Government was
unable to allow a vessel loaded with munitions and artillery stores
consigned to the Polish Military Mission at Danzig, to pass through the
Canal, because the German neutrality orders of July 25th and 30th, 1920,
prohibited the transit of cargoes of this kind destined for Poland or Russia,
and Article 380 of the Treaty of Versailles was not an obstacle to the
application of these orders to the Kiel Canal. Without waiting any longer,
the Société des Affréteurs réunis telegraphed to the captain of the
“Wimbledon” ordering him to continue his voyage by the Danish Straits. The
vessel weighed anchor on April 1st and, proceeding by Skagen, reached
Danzig, its port of destination, on April 6th; it had thus been detained for
eleven days, to which must be added two days for deviation. Application
instituting proceedings. In the meantime, the incident had given rise to
negotiations between the Conference of Ambassadors and the Berlin
Government; but these negotiations, in the course of which the contrast
between the opposing standpoints had become apparent and the Allied
Powers’ protest had been met by a statement of Germany’s alleged rights
and obligations as a neutral in the war between Russia and Poland, led to no
result; whereupon the British, French, Italian and Japanese Governments—
thereby adopting a course suggested by the German Government itself—
decided to bring the matter which had given rise to the negotiations before
the jurisdiction instituted by the League of Nations to deal, amongst other
matters, with any violation of Articles 380 to 386 of the Treaty of Versailles
or any dispute as to their interpretation, viz. the Permanent Court of
International Justice. By the application of these Powers, dated January
16th, 1923, it was submitted that the German authorities were wrong in
refusing to the S.S. “Wimbledon” free access to the Kiel Canal, and that the
German Government was under an obligation to make good the prejudice
sustained as a result of this action by the said vessel, viz.: 174,084 francs 86
centimes, with interest at 6 per cent. per annum fromMarch 20th, 1921; in
the event of payment not being effected within the period fixed, interim
interest was claimed.
Application for permission to intervene.
The application was communicated to the German Government, to the
Members of the League of Nations and to signatories of the Treaty of
Versailles, the interpretation of which was involved.1 The four applicant
Governments filed, within the times fixed by the Court, a case and a reply,
which were respectively answered by a counter-case and rejoinder filed by
the respondent. Furthermore, the Polish Government, basing its claim in the
last resort on Article 63 of the Statute, which provides that whenever the
construction of a convention to which States other than those concerned in
the case are Parties is in question, such States have the right to intervene in
the proceedings, filed in May an application for permission to intervene. The
“Wimbledon” case was placed on the list for the third (ordinary) Session of
the Court, which opened on June 15th and terminated on September 15th,
1923. The following judges were present: MM. Loder, President, Weiss,
Vice-President, Lord Finlay, MM. Nyholm, Moore, de Bustamante, Altamira,
Oda, Anzilotti, Huber, Wang. With the members of the Court sat Professor
Schücking, whom Germany, being a Party to the suit and making use of her
right to choose a judge of her nationality,2 had appointed for this purpose.
Interlocutory judgment on the application for permission to intervene.
The Court first of all had to consider Poland’s application to intervene. On
June 28th, 1923, after hearing the observations and conclusions of the
applicants, respondent and intervener, and having affirmed that the
interpretation of certain clauses of the Treaty of Versailles was in fact
involved in the suit and that Poland was one of the States which were
Parties to that Treaty, the Court allowed the application. Passing next to the
suit itself, it heard the statements of the Agents of the Governments
concerned and, on August 17th, 1923, delivered judgment. * * *
The Court’s judgment (analysis).
In the judgment, the Court states, in the first place, that it can take
cognizance of the suit in spite of the fact that the applicants cannot all
adduce a prejudice to some pecuniary interest; for they have a clear interest
in the execution of the provisions of the Treaty of Versailles relating to the
Kiel Canal.
Turning next to the merits of the case, the Court, after analysing these
provisions, arrives at the conclusion that the terms of Article 380 give rise to
no doubt. It follows that the Canal has ceased to be an internal navigable
waterway the use of which by the vessels of States other than the riparian
State is left entirely to the discretion of that State. This rule also holds good
in the event of Germany’s neutrality. For the reservation made in Article
380 to the effect that a vessel must, in order to benefit by the rights of
access, fly the flag of a nation at peace with Germany, shows that the
authors of the Treaty contemplated the contingency of Germany being in
the position of a belligerent. If the conditions of access to the Canal were
also to be modified in the event of a conflict between two Powers remaining
at peace with Germany, the Treaty would not have failed to say so. But it
has not said so and this omission was no doubt intentional. It follows
therefore that the general rule establishing free passage is also applicable in
the case of Germany’s neutrality. Again, the fact that a special section of the
Treaty is devoted to the Kiel Canal, and that in this section certain clauses
which concern the inland navigable waterways of Germany are repeated,
shows that the provisions relating to this Canal are self-contained, and that
principles drawn from other articles of the Treaty, relating for instance to
the conditions governing inland waterways in the case of the neutrality of
the riparian State, are not intended to be applied to it. There is no doubt
that the clause under consideration places an important limitation on the
exercise by Germany of sovereign rights over the Canal, in particular as
regards the rights of a neutral power in time of war. The Court
acknowledges that this fact constitutes a sufficient reason for the restrictive
interpretation of the clause, in case of doubt. But this restrictive
interpretation cannot be carried so far as to contradict the plain terms of
the article. Furthermore, the abandonment of the rights in question cannot
be regarded as inadmissible for reasons connected with Germany’s
sovereignty; for the Court declines to see in the conclusion of any treaty by
which a State undertakes to perform or refrain from performing a particular
act, an abandonment of its sovereignty; on the contrary, the right of
entering into international engagements is an attribute of State sovereignty.
Again, the Court sees in the analogy which it establishes between the new
regime of the Kiel Canal and those applicable to artificial waterways joining
two open seas which are assimilated to natural straits, proof that even the ANGLO-FRENCH CONTINENTAL SHELF
passage of war vessels of belligerents does not compromise the neutrality
of the sovereign State under whose jurisdiction the Kiel Canal lies.
Moreover, the President of the German Delegation expressly admitted this,
when he stated in a note to the President of the Conference of
Ambassadors that the German Government claimed to apply its neutrality
orders only to vessels of commerce and not to war vessels; it follows a
fortiori that the passage of neutral vessels carrying contraband of war
cannot constitute a failure on the part of Germany to fulfil her duties as a
neutral. The Court holds that Germany was perfectly free to regulate her
neutrality in the Russo-Polish war, but subject to the condition that she
respected and maintained intact her contractual obligations, viz., in this
case, those entered into by her at Versailles on June 28th, 1919. These
obligations involved the definite duty of allowing the passage of the
“Wimbledon” through the Kiel Canal, and her duties as a neutral did not
oblige her to prohibit it. As regards the obligation to pay compensation
resulting from the conclusion thus reached, the Court gives judgment in
favour of the applicants, except as regards certain points. In the first place,
the claim for the share of the vessel in the general expenses of the Company
which had chartered it, is disallowed. Secondly, the Court considers that
interest should run, not from the time of the arrival of the “Wimbledon” at
the entrance of the Kiel Canal, but from the date of the judgment
establishing Germany’s obligation to pay. Lastly, the Court does not award
interim interest at a higher rate in the event of the judgment remaining
uncomplied with: it neither can nor should contemplate such a contingency.
PERMANENT COURT OF INTERNATIONAL JUSTICE
Case Concerning the Factory at Chorzów (Germany v.
Poland)
By: Shanell Escalona
It is a general principle of International law that every violation of an
engagement involves an obligation to make reparation, adopted form
municipal law, which is applied in this case along with the principle of state
responsibility as a state is considered as an individual entity when comes to
an international dispute and it was accepted by all, repetition of which
confirms that the decision is conform to existing law.
FACTS: After the First World War due to a bipartite agreement between
Germany and Poland, Germany agreed to transfer the control of Upper
Silesia area to Poland. On an agreement that Poland would not forfeit any
property of Germany, but thereafter Poland forfeited two of German
Companies situated at that area.
On March 1915, The German Reich (“Germany”) entered into a contract
with Bayerische Stickstofwerke A.-G. (“Bayerische”) for, among others, the
construction of a nitrate factory in Chorzów, Upper Silesia. On Decmber
1919, another company, Oberschlesische Stickstofwerke A.-G.
(“Oberschlesische”), was formed. Oberschlesische would own the land and
improvements of the factory while Bayerische would continue handling the
management and operations. Oberschlesische was duly entered in the land
register as owner of the property constituting the nitrate factory.
Oberschlesische and Bayerische brought separate actions to recover
possession of the factory before the German-Polish Mixed
Arbitral Tribunal at Paris, but both later withdrew. Germany submitted a
suit to the Permanent Court of International Justice (PCIJ) demanding
reparation from the Polish Government, claiming that according to PCIJ
Judgment No. 7, Poland’s acts contradicted Art. 6 of the Geneva
Convention. On receipt of Germany’s complaint, Poland denied the PCIJ’s
jurisdiction, and submitted that the Court should declare that it had no
jurisdiction. This was overruled.
ISSUE: Whether there exists an obligation to make reparation and if yes,
whether or not Poland committed a breach.
HELD: AFFIRMATIVE. The Court observes that it is a principle of International
Law, and even a general conception of law, that any breach of an
engagement involves an obligation to make reparation. In Judgment No. 8,
the Court has already said that reparation is the indispensable complement
of a failure to apply a convention, there is no necessity for this to be stated
in the convention itself. This obligation to make reparation has been
recognized as an element of positive International Law.
On Poland’s breach of an international engagement: res judicata applies.
The nonconformity of Poland's attitude in respect of the two Companies
with Art. 6 and the following articles of the Geneva Convention is
established by No. 2 of the operative provisions of Judgment No. 7
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain);
Preliminary Objections
Judgment of 24 July 1964
Proceedings in the case concerning the Barcelona Traction, Light and Power
Company, Limited (Belgium v. Spain) were instituted by an Application of 19
June 1962 in which the Belgian Government sought reparation for damage
claimed to have been caused to Belgian nationals, shareholders in the
Canadian Barcelona Traction Company, by the conduct of various organs of
the Spanish State. The Spanish Government raised four Preliminary
Objections.
The Court rejected the first Preliminary Objection by 12 votes to 4, and the
second by 10 votes to 6. It joined the third Objection to the merits by 9
votes to 7 and the fourth by 10 votes to 6.
President Sir Percy Spender and Judges Spiropoulos, Koretsky and Jessup
appended Declarations to the Judgment.
Vice-President Wellington Koo and Judges Tanaka and Bustamante y Rivero
appended Separate Opinions.
Judge Morelli and Judge ad hoc Armand-Ugon appended Dissenting
Opinions.
***
First Preliminary Objection
In its Judgment, the Court recalled that Belgium had on 23 September
1958filed with the Court an earlier Application against Spain in respect of
the same facts, and Spain had then raised three Preliminary Objections. On
23 March 1961 the Applicant, availing itself of the right conferred upon it by
Article 69, paragraph 2, of the Rules of Court, had informed the Court that it
was not going on with the proceedings; notification having been received
from the Respondent that it had no objection, the Court had removed the
case from its List (10 April 1961). In its first Preliminary Objection, the
Respondent contended that this discontinuance precluded the Applicant
from bringing the present proceedings and advanced five arguments in
support of its contention.
The Court accepted the first argument, to the effect that discontinuance is a
purely procedural act the real significance of which must be sought in the
attendant circumstances.
On the other hand, the Court was unable to accept the second argument
namely that a discontinuance must always be taken as signifying a
renunciation of any further right of action unless the right to start new
proceedings is expressly reserved. As the Applicant's notice of
discontinuance contained no motivation and was very clearly confined to
the proceedings instituted by the first Application, the Court considered
that the onus of establishing that the discontinuance meant something
more than a decision to terminate those proceedings was placed upon the
Respondent.
The Respondent, as its third argument, asserted that there had been an
understanding between the Parties; it recalled that the representatives of
the private Belgian interests concerned had made an approach with a view
to opening negotiations and that the representatives of the Spanish
interests had laid down as a prior condition the final withdrawal of the
claim. According to the Respondent what was meant by this was that the
discontinuance would put an end to any further right of action, but the
Applicant denied that anything more was intended than the termination of
the then current proceedings. The Court was unable to find at the
governmental level any evidence of any such understanding as was alleged
by the Respondent; it seemed that the problem had been deliberately
avoided lest the foundation of the interchanges be shattered. Nor had the
Respondent, on whomlay the onus of making its position clear, expressed
any condition when it indicated that it did not object to the discontinuance.
The Respondent Government then advanced a fourth argument, having the
character of a plea of estoppel, to the effect that, independently of the
existence of any understanding, the Applicant had by its conduct misled the
Respondent about the import of the discontinuance, but for which the
Respondent would not have agreed to it, and would not thereby have
suffered prejudice. The Court did not consider that the alleged misleading
Belgian misrepresentations had been established and could not see what
the Respondent stood to lose by agreeing to negotiate on the basis of a
simple discontinuance; if it had not agreed to the discontinuance, the
previous proceedings would simply have continued, whereas negotiations
offered a possibility of finally settling the dispute. Moreover, if the
negotiations were not successful and the case started again, it would still be
possible once more to put forward the previous Preliminary Objections.
Certainly the Applicant had framed its second Application with a
foreknowledge of the probable nature of the Respondent's reply and taking
it into account but, if the original proceedings had continued, the Applicant
could likewise always have modified its submissions.
The final argument was of a different order. The Respondent alleged that
the present proceedings were contrary to the spirit of the Hispano-Belgian
Treaty of Conciliation, Judicial Settlement and Arbitration of 19 July
1927 which, according to the Applicant, conferred competence on the
Court. The preliminary stages provided for by the Treaty having already
been gone through in connection with the original proceedings, the Treaty
could not be invoked a second time to seise the Court of the same
complaints. The Court considered that the Treaty processes could not be
regarded as exhausted so long as the right to bring new proceedings
otherwise existed and until the case had been prosecuted to judgment.
For these reasons, the Court rejected the first Preliminary Objection.
Second Preliminary Objection
To found the jurisdiction of the Court the Applicant relied on the combined
effect of Article 17 (4) of the 1927 Treaty between Belgium and Spain,
according to which if the other methods of settlement provided for in that
Treaty failed either party could bring any dispute of a legal nature before
the Permanent Court of International Justice, and Article 37 of the Statute
of the International Court of Justice, which reads as follows:
"Whenever a treaty or convention in force provides for reference of
a matter . . . to the Permanent Court of International Justice, the matter
shall, as between the parties to the present Statute, be referred to the
International Court of Justice."
As the principal aspect of its objection, the Respondent maintained that
although the 1927 Treaty might still be in force, Article 17 (4) had lapsed in
April 1946 on the dissolution of the Permanent Court to which that article
referred. No substitution of the present for the former Court had been
effected in that article before the dissolution, Spain not being then a party
to the Statute; in consequence, the 1927 Treaty had ceased to contain any
valid jurisdictional clause when Spain was admitted to the United Nations
and became ipso facto a party to the Statute (December 1955). In other
words Article 37 applied only between States which had become parties to
the Statute previous to the dissolution of the Permanent Court, and that
dissolution had brought about the extinction of jurisdictional clauses
providing for recourse to the Permanent Court unless they had previously
been transformed by the operation of Article 37 into clauses providing for
recourse to the present Court.
The Court found that this line of reasoning had first been advanced by the
Respondent after the decision given by the Court on 26 May 1959 in the
case concerning the Aerial Incident of 27 July 1955(Israel v. Bulgaria). But
that case had been concerned with a unilateral declaration in acceptance of
the compulsory jurisdiction of the Permanent Court and not with a treaty. It
thus had reference not to Article 37 but to Article 36, paragraph 5, of the
Statute.
As regards Article 37, the Court recalled that in 1945 its drafters had
intended to preserve as many jurisdictional clauses as possible from
becoming inoperative by reason of the prospective dissolution of the
Permanent Court. It was thus difficult to suppose that they would willingly
have contemplated that the nullification of the jurisdictional clauses whose
continuation it was desired to preserve would be brought about by the very
event the effects of which Article 37 was intended to parry.
Only three conditions were actually stated in Article 37. They were that
there should be a treaty in force; that it should contain a provision for the
reference of a matter to the Permanent Court; and that the dispute should
be between States parties to the Statute. In the present case the conclusion
must be that the 1927 Treaty being in force and containing a provision for
reference to the Permanent Court, and the parties to the dispute being
parties to the Statute, the matter was one to be referred to the
International Court of Justice, which was the competent forum.
It was objected that this view led to a situation in which the jurisdictional
clause concerned was inoperative and then after a gap of years became
operative again, and it was asked whether in those circumstances any true
consent could have been given by the Respondent to the Court's
jurisdiction. The Court observed that the notion of rights and obligations
that are in abeyance but not extinguished was common; States becoming
parties to the Statute after the dissolution of the Permanent Court must be
taken to have known that one of the results of their admission would be the
reactivation by reason of Article 37 of certain jurisdictional clauses. The
contrary position maintained by the Respondent would create
discrimination between States according as to whether they became parties
to the Statute before or after the dissolution of the Permanent Court.
As regards Article 17 (4) more particularly, the Court considered that it was
an integral part of the 1927 Treaty. It would be difficult to assert that the
basic obligation to submit to compulsory adjudication provided for in the
Treaty was exclusively dependent on the existence of a particular forum. If it
happened that the forum went out of existence, the obligation became
inoperative but remained substantively in existence and could be rendered
operative once more if a new tribunal was supplied by the automatic
operation of some other instrument. Article 37 of the Statute had precisely
that effect. Accordingly, "International Court of Justice" must now be read
for "Permanent Court of International Justice".
As a subsidiary plea, the Respondent contended that if Article 37 of the
Statute operated to reactivate Article 17 (4) of the Treaty in December
1955, what came into existence at that date was a new obligation between
the Parties; and that just as the original applied only to disputes arising after The foregoing considerations applied a fortiori to the fourth Preliminary
the Treaty date, so the new obligation could apply only to disputes arising Objection, wherein the Respondent alleged failure to exhaust local
after December 1955. The dispute was accordingly not covered since it had remedies. This allegation was in fact inextricably interwoven with the issues
arisen previous to December 1955. In the opinion of the Court, when the of denial of justice which constituted the major part of the merits of the
obligation to submit to compulsory adjudication was revived as to its case.
operation, it could only function in accordance with the Treaty providing for Accordingly, the Court joined the third and fourth Preliminary Objections to
it and it continued to relate to any disputes arising after the Treaty date. the merits.
For these reasons the Court rejected the second Preliminary Objection both
in its principal and in its subsidiary aspects.
Third and Fourth Preliminary Objections
The Respondent's third and fourth Preliminary Objections involved the
question of whether the claim was admissible. The Applicant had submitted
alternative pleas that these objections, unless rejected by the Court, should
be joined to the merits.
By its third Preliminary Objection the Respondent denied the legal capacity
of the Applicant to protect the Belgian interests on behalf of which it had
submitted its claim. The acts complained of had taken place not in relation
to any Belgian natural or juristic person but in relation to the Barcelona
Traction Company, a juristic entity registered in Canada, the Belgian
interests concerned being in the nature of shareholding interests in that
company. The Respondent contended that international law does not
recognize, in respect of injury caused by a State to the foreign company, any
diplomatic protection of shareholders exercised by a State other than the
national State of the company. The Applicant contested this view.
The Court found that the question of the jusstandi of a government to
protect the interests of shareholders raised an antecedent question of what
was the juridical situation in respect of shareholding interests, as recognized
by international law. The Applicant thus necessarily invoked rights which, so
it contended, were conferred on it in respect of its nationals by the rules of
international law concerning the treatment of foreigners. Hence a finding by
the Court that it had no jusstandi would be tantamount to a finding that
those rights did not exist and that the claim was not well-founded in
substance.
The third Objection had certain aspects which were of a preliminary
character, but involved a number of closely interwoven strands of mixed
law, fact and status to a degree such that the Court could not pronounce
upon it at the present stage in full confidence that it was in possession of all
the elements that might have a bearing on its decisions. The proceedings on
the merits would thus place the Court in a better position to adjudicate with
a full knowledge of the facts.
Diversion of Water from the Meuse (Netherlands v. Belgium) Exchange of Greek and Turkish Population Case, PCIJ 1925 Advisory
Brief Fact Summary. The building of certain canals was the ground upon Opinion
which the Netherlands (P) asserted that Belgium (D) had violated an
agreement. Summary:

Synopsis of Rule of Law. Principles of equity forms part of International law.

Facts. The construction of certain canals by Belgium (D) did not go down
well with the Netherlands (P) because the construction could alter the
water level of the Meuse River in violation of an earlier agreement. Belgium Brazilian Loans
(D) counterclaimed on the grounds of the construction of a lock by Summary:
Netherlands (P) at an earlier date. The claims of both countries were
rejected by the Court.

Issue. Do principles of equity form a part of international law?

Concurrence. (Hudson, J) Yes. The principles of equity form a part of

international law. Under Article 38 and independently of that statute, this
Court has some freedom to consider principles of equity. The maxim “He
who seeks equity must do equity” is derived from Anglo-American law.

Discussion. The Court also referred to Roman law. In Roman law, a similar
principle made the obligations of a vendor and a vendee concurrent.
Neither could compel the other to perform unless he had done, or tendered
his own
Human Rights Law Case Digest: Mejoff V. Director Of Prisons (1951)
Commonwealth Act No. 613.
FACTS:
 Boris Mejoff, an alien of Russian descent who was brought to this
country from Shanghai as a secret operative by the Japanese forces
during the latter's regime in these Islands. (The petitioner's entry
into the Philippines was not unlawful; he was brought by the armed
and belligerent forces of a de facto government whose decrees
were law furing the occupation.)
 He was arrested on March 18, 1948 as a Japanese spy, by U. S. Army
Counter Intelligence Corps. and later there was an order for his
release.
 But on April 5, 1948, the Board of Commissioners of Immigration
declared that Mejoff had entered the Philippines illegally in 1944
and ordered that he be deported on the first available
transportation to Russia.
 He was transferred to Cebu Provincial Jail and then Bilibid Prison at
Muntinlupa on October, 1948.
 He then filed a petition for writ of habeas corpus on the basis that
too long a detention may justify the issuance of a writ of habeas
corpus - denied
 Over two years having elapsed since the decision aforesaid was
promulgated, the Government has not found way and means of
removing the petitioner out of the country, and none are in sight,
although it should be said in justice to the deportation authorities, it
was through no fault of theirs that no ship or country would take
the petitioner.
 This is his 2nd petition for writ of habeas corpus
ISSUE: W/N the writ of habeas corpus should be granted since he was
detained longer than a reasonable time
HELD: YES. writ will issue commanding the respondents to release the
petitioner from custody upon these terms: The petitioner shall be placed
under the surveillance of the immigration authorities or their agents in such
form and manner as may be deemed adequate to insure that he keep peace
and be available when the Government is ready to deport him. The
surveillance shall be reasonable and the question of reasonableness shall be
submitted to this Court or to the Court of First Instance of Manila for
decision in case of abuse. He shall also put up a bond for the above purpose
in the amount of P5,000 with sufficient surety or sureties, which bond the
Commissioner of Immigration is authorized to exact by section 40 of
 Aliens illegally staying in the Philippines have no right of asylum
therein even if they are "stateless," which the petitioner claims to
be.
 The protection against deprivation of liberty without due process of
law and except for crimes committed against the laws of the land is
not limited to Philippine citizens but extends to all residents, except
enemy aliens, regardless of nationality.
 Moreover, by its Constitution (Art. II, Sec. 3) the Philippines
"adopts the generally accepted principles of international
law as part of the law of Nation." And in a resolution
entitled "Universal Declaration of Human Rights" and
approved by the General Assembly of the United Nations of
which the Philippines is a member, at its plenary meeting on
December 10, 1948, the right to life and liberty and all other
fundamental rights as applied to all human beings were
proclaimed. It was there resolved that "All human beings
are born free and equal in degree and rights" (Art. 1); that
"Everyone is entitled to all the rights and freedom set forth
in this Declaration, without distinction of any kind, such as
race, colour, sex, language, religion, political or other
opinion, nationality or social origin, property, birth, or other
status" (Art. 2): that "Every one has the right to an effective
remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the
Constitution or by law" (Art. 8); that "No one shall be
subjected to arbitrary arrest, detention or exile" (Art. 9);
etc.
 petitioner's unduly prolonged detention would be unwarranted by
law and the Constitution, if the only purpose of the detention be to
eliminate a danger that is by no means actual, present, or
uncontrollable
 Imprisonment to protect society from predicted but
unconsummated offenses is so unprecedented in this country and
so fraught with danger of excesses and injustice that I am loath to
resort it, even as a discretionary judicial technique to supplement
conviction of such offenses as those of which defendants stand
convicted.
 If that case is not comparable with ours on the issues presented, its
underlying principle is of universal application.
 As already noted, not only are there no charges pending against the
petitioner, but the prospects of bringing any against him are slim
and remote.
SHIGENORI KURODA, petitioner, vs. Major General RAFAEL JALANDONI,
Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA,
Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major
FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents.
G.R. No. L-2662 March 26, 1949
Nature of the Action: Petition assailing the constitutionality of Executive
Order 68, establishing the National War Crimes Office
Facts: Petitioner Kuroda was the former Lieutenant-General of the Japanese
Imperial Army and Commanding General of the Japanese Imperial Forces in
the Philippines, and was charged for committing war crimes and other
atrocities against the military and civilians. The case was then tried before
the Military Commission, as established by E0 68, to which petitioner
argued that said EO was unconstitutional; therefore, it lacked jurisdiction to
try said case.
Issue: Is the establishment of the Military Commission valid, and thus,
acquiring jurisdiction over the present case?
Ruling: For all the foregoing the petition is denied with costs de oficio.
Ratio Decidendi: Yes. The Supreme Court upheld the validity of EO 68 in
that, “The Philippines renounces war as an instrument of national policy and
adopts the generally accepted principles of international law as part of the
of the nation”; that its promulgation is an exercise of the president of his
power as Commander-in-Chief of the armed forces; and that he is fully
empowered to consummate this unfinished aspect of war, namely the trial
and punishment of war crimes through the issuance and enforcement of the
said order. Thus, the Military Commission, as having been convened by
virtue of a valid law, has jurisdiction over crimes which fall under the
provisions of EO 68 such as in the instant case.
Agustin v Edu (1979) 88 SCRA 195
Facts:
Leovillo Agustin, the owner of a Beetle, challenged the constitutionality of
Letter of Instruction 229 and its implementing order No. 1 issued by LTO
Commissioner Romeo Edu. His car already had warning lights and did not
want to use this.
The letter was promulgation for the requirement of an early warning device
installed on a vehicle to reduce accidents between moving vehicles and
parked cars.
The LTO was the issuer of the device at the rate of not more than 15% of
the acquisition cost.
The triangular reflector plates were set when the car parked on any street
or highway for 30 minutes. It was mandatory.
Petitioner: 1. LOI violated the provisions and delegation of police power,
equal protection, and due process/
2. It was oppressive because the make manufacturers and car
dealers millionaires at the expense f car owners at 56-72 pesos per set.
Hence the petition.
The OSG denied the allegations in par X and XI of the petition with regard to
the unconstitutionality and undue delegation of police power to such acts.
The Philippines was also a member of the 1968 Vienna convention of UN on
road signs as a regulation. To the petitioner, this was still an unlawful
delegation of police power.
Issue:
Is the LOI constitutional? If it is, is it a valid delegation of police power?
Held: Yes on both. Petition dismissed.
Ratio:
Police power, according to the case of Edu v Ericta, which cited J. Taney, is
nothing more or less than the power of government inherent in every
sovereignty.
The case also says that police power is state authority to enact legislation
that may interfere with personal liberty or property to promote the general
welfare.
Primicias v Fulgoso- It is the power to describe regulations to promote the
health, morals, peace, education, good order, and general welfare of the
people.
J. Carazo- government limitations to protect constitutional rights did not
also intend to enable a citizen to obstruct unreasonable the enactment of
measures calculated to insure communal peace.
There was no factual foundation on petitioner to refute validity.
Ermita Malate Hotel-The presumption of constitutionality must prevail in
the absence of factual record in over throwing the statute.
Brandeis- constitutionality must prevail in the absence of some factual
foundation in overthrowing the statute.
Even if the car had blinking lights, he must still buy reflectors. His claims that
the statute was oppressive was fantastic because the reflectors were not
expensive.
SC- blinking lights may lead to confusion whether the nature and purpose of
the driver is concerned.
Unlike the triangular reflectors, whose nature is evident because it’s
installed when parked for 30 minutes and placed from 400 meters from the
car allowing drivers to see clearly.
There was no constitutional basis for petitioner because the law doesn’t
violate any constitutional provision.
LOI 229 doesn’t force motor vehicle owners to purchase the reflector from
the LTO. It only prescribes rge requirement from any source.
The objective is public safety.
The Vienna convention on road rights and PD 207 both recommended
enforcement for installation of ewd’s. Bother possess relevance in applying
rules with the decvlaration of principles in the Constitution.
On the unlawful delegation of legislative power, the petitioners have no
settled legal doctrines.
.B.L. Reyes vs Bagatsing GR No. 65366 October 25, 1983
Facts
Retired Justice Jose B.L. Reyes, in behalf of the Anti-Bases Coalition, sought
for a permit from the City of Manila to hold a peaceful march and rally on
October 26, 1983 starting from Luneta to the gates of the United States
embassy. The objective of the rally was to peacefully protest the removal of
all foreign military bases and to present a petition containing such to a
representative of the Embassy so it may be delivered to the United States
Ambassador. This petition was to initially compel the Mayor of the City of
Manila to make a decision on the application for a permit but it was
discovered that a denial has already been sent through mail. It also included
a provision that if it be held somewhere else, permit may be issued. The
respondent mayor alleges that holding the rally in front of the US Embassy is
a violation of the resolutions during the Vienna Convention on Diplomatic
Relations adopted in 1961 and of which the Philippines is a signatory. In the
doctrine of incorporation, the Philippines has to comply with such generally
accepted principles of international law as part of the law of the land. The
petitioner, on the other hand, contends that the denial of the permit is a
violation of the constitutional right of the freedom of speech and
expression.
Issue
Whether or not the Anti-Bases Coalition should be allowed to hold a
peaceful protest rally in front of the US Embassy
Ruling
The Supreme Court ruled to allow the rally in front of the US Embassy to
protect the exercise of the rights to free speech and peaceful assembly and
on the ground that there was no showing of the existence of a clear and
present danger of a substantive evil that could justify the denial of the
permit. These rights are not only assured by our constitution but also
provided for in the Universal Declaration of Human Rights. Between the two
generally accepted principles of diplomatic relations and human rights, the
former takes higher ground. The right of the freedom of expression and
peaceful assembly is highly ranked in the scheme of constitutional values.
RAQUIZA v BRADFORD 75 Phil. 50 (1945)
Characteristics of Philippine Criminal Law – General – Exceptions
FACTS:
Petitioners, invoking the writ of habeas corpus were arrested by the United
States Army and have since then been detained under the custody of the
respondents by virtue of a proclamation issued by General MacArthur
providing military measures for the apprehension of Filipino citizens who
have voluntarily collaborated with the enemy. Petitioners have not been
informed of the nature of the accusation against them; no complaint with
any specific offense has been filed against them, and has not been given
even a summary hearin
ISSUE:
Whether or not the Supreme Court has jurisdiction to afford relief to the
petitioners?
RULING:
Yes.
RATIO:
The affirmative and dissenting vote is based on the following
considerations. First, the right to due process of law is an immanent and
alienable right of every person which cannot be dispensed either in time of
war or in time of peace. Second, the assailed proclamation is either a bill of
attainder or a military order that apprehends and held in restraint violators
without a trial by a military tribunal. Third, the petitioners being illegally
confined without due process are entitled to be discharge underhabeas
corpus (Sec 1, Rule 102 of the Rules of Court). Petition was dismissed. (Six
members of the Court voted for the negative and three for the
affirmative).
DONALD BAER, Commander U.S. Naval Base, Subic Bay, Olongapo, issued by the Philippine Government to the exercise by the United States of
Zambales, petitioner, its rights, power and authority of control within the bases; and the findings
vs. of the Mutual Defense Board, an agency of both the Philippine and United
HON. TITO V. TIZON, as Presiding Judge of the Court of First Instance of States Governments, that "continued logging operation by Mr. Gener within
Bataan, and EDGARDO GENER, respondents. the boundaries of the U.S. Naval Base would not be consistent with the
security and operation of the Base," is conclusive upon the respondent
Judge.
Facts:
Edgardo Gener was engaged in the business of logging in an area situated in
Barrio Mabayo, Bataan. His logging operations was, however, stopped by
American Naval Base authorities - who were headed by Donald Baer, the
Commander of the US Naval Base in Olongapo.

Gener filed a complaint in the CFI [RTC] of Bataan praying for a writ of
preliminary injunction with restraining order against Baer for interfering
with his logging operations.

Baer, on the otherhand, contested the jurisdiction of the CFI [RTC] of Bataan
and invoked the doctrine of state immunity from suit. He claimed that
cessation of the logging operations within the Naval Base is within the scope
of his authority and official duty. Thus, a suit filed against him is one against
a foreign sovereign.

Issue:
Whether Baer may invoke the doctrine of state immunity, thus, he is
outside the jurisdiction of the CFI [RTC] of Bataan?

Ruling:
Yes. Baer may validly invoke the doctrine of state immunity, thus, the suit
against him will not prosper.

What was sought by Gener and what was granted by the respondent Judge
amounted to an interference with the performance of the duties of Baer in
the base area in accordance with the powers possessed by him under the
Philippine-American Military Bases Agreement.

His point has been made clear, "Assuming, for purposes of argument, that
the Philippine Government, through the Bureau of Forestry, possesses the
"authority to issue a Timber License to cut logs" inside a military base, the
Bases Agreement subjects the exercise of rights under a timber license