saudi Traction, Light and Power Company, Limited (Belgium v.

Spain) (New Application: 1962)

OVERVIEW OF THE CASE

Belgium had ceased pursuing the aforementioned case on account of efforts to negotiate a friendly settlement.
The negotiations broke down, however, and Belgium filed a new Application on 19 June 1962. The following
March, Spain filed four preliminary objections to the Court’s jurisdiction, and on 24 July 1964 the Court delivered
a Judgment dismissing the first two but joining the others to the merits. After the filing, within the time-limits
requested by the Parties, of the pleadings on the merits and on the objections joined thereto, hearings were held
from 15 April to 22 July 1969. Belgium sought compensation for the damage claimed to have been caused to its
nationals, shareholders in the Barcelona Traction, Light and Power Company, Ltd., as the result of acts contrary to
international law said to have been committed by organs of the Spanish State. Spain, on the other hand,
submitted that the Belgian claim should be declared inadmissible or unfounded. In a Judgment delivered on 5
February 1970, the Court found that Belgium had no legal standing to exercise diplomatic protection of
shareholders in a Canadian company in respect of measures taken against that company in Spain. It also pointed
out that the adoption of the theory of diplomatic protection of shareholders as such would open the door to
competing claims on the part of different States, which could create an atmosphere of insecurity in international
economic relations. Accordingly, and in so far as the company’s national State (Canada) was able to act, the Court
was not of the opinion that jus standi was conferred on the Belgian Government by considerations of equity. The
Court accordingly rejected Belgium’s claim.

Barcelona Traction, Light and Power Company was a Canadian company, created in 1911 and that operated and
provided light and power utilities in Spain. Its headquarters were in Toronto, Canada, it operated in Spain but was
owned mostly by Belgian holding companies. The company Barcelona Traction managed to survive the Spanish
Civil War without many damages and was still quite profitable. Because of its foreign investors, the company
issued several series of bonds, principally in sterling. However, in the idea of Spain’s financial recovery after the
civil war, the government banned the transfer of foreign currency from Spain.

As a result of a financial maneuver led by Juan March in order to take control over the society, the Court of Spain
declared Barcelona Traction Company bankrupt on February 12 of 1948. Belgium, in order to protect its nationals
and their interests, sought reparation for damage claimed to have been caused to Belgians nationals who were
shareholders in the company. A first round of diplomatic negotiations started involving a few governments, such
as Belgium, Canada, the United Kingdom, and the United States of America. As it was a society ruled by Canadian
law, Canada proposed to settle the matter with arbitration which the Spanish government refused but agreed to
form a committee of experts to study the dispute. Because the diplomatic negotiations were unsuccessful, the
Belgian government filed a first request before the International Court of Justice on September 23, 1958, which
was in 1961 interrupted as new negotiations took place. Understanding that these negotiations would go
nowhere, Belgium filed a new request before the International Court of Justice on June 19, 1962.

Regarding the jurisdiction of the Court, Belgium and Spain are both parties to the Statute of the Court meaning
that the Court is qualified and has jurisdiction to hear and to resolve the dispute, in which Belgium is using its
diplomatic protection for the benefit of its foreign nationals and supports that Spain broke the international law
rules concerning the way foreigners are treated. In 1963, Spain raised four preliminary objections to the Belgian
complaint. In a judgement of July 24, 1964, the Court rejected the first two preliminary objections and joined the
second two together. In the decision of February 5, 1970, the main question revolved around the thematic of
diplomatic protection: does Belgium have the right to use its diplomatic protection for the Belgian shareholders of
a Canadian company and therefore stand before the International Court of Justice or not?

In this case, the Court made a distinction between two separate entities: the company and the shareholder, which
are ruled by different law. The company was Canadian and the shareholders were Belgians. The Court emphasized
the fact that the harmful acts attributable to Spain aimed at the company’s rights and not at the shareholders’
own rights. A clear distinction has been made between a violation of a company’s right and the mere prejudice
towards the shareholders’ interests. Thus, in its judgement of 1970, the International Court of Justice rejected the
request of the Belgian government and declared Belgium as not qualified to stand before the Court as it did not
have jus standi, or recognized rights, to exercise diplomatic protection for its nationals. The Nationality State of
shareholders cannot sue diplomatic protection. Moreover, the Court stated that Belgium couldn’t sue Spain by
itself as the Barcelona Company was ruled by Canadian law. There was no legal interest in the matter for Belgium
to bring a claim. What also emerges from this judgment is the question of the obligation to treat foreign nationals
in a certain way. Belgium thought that it could use this mean to support its claim.

One of the main benefit of this judgement is the recognition of the concept “erga omnes”. It’s a Latin locution
which means “towards all” or “towards everyone”. For the legal domain, it means that a judicial decision is
binding towards everyone, rights and obligations are owed towards all. These norms are imperative. Maurizio
Ragazzi explained in his book, The Concept of International Obligations Erga Omnes, that “In the Barcelona
Traction case, the International Court of Justice identified a category of international obligations called erga
omnes, namely obligations owed by states to the international community as a whole, intended to protect and
promote the basic values and common interests of all”.

The judgement of 1970 is a fundamental one in the way that it expressed this notion of erga omnes that is now
considered as one of the pillar of the international law. It expanded this notion in the international community.
The notion of erga omnes is associated with the notion of jus cogens which corresponds to a fundamental
principle of international, accepted by the international community, considered as universal and superior to which
no derogation can be granted. The notion of jus cogens was established by the Vienna Convention on the Law of
Treaties of 1969.

The case Barcelona Traction, Light and Power Limited Company is of the greatest importance and value in the field
of International Law, and more particularly for diplomatic protection and the promotion of the concept of erga
omnes norms and rights. Jean Charpentier explained in his analysis of the case, the relations between the states
are rigid which does not facilitate the flexibility at the base of multinational companies. He then explained that
the only solution would be to ask the State to which they invest a right of direct access to ad hoc arbitral bodies.

CASE DIGEST

Facts.

Barcelona Traction, Light and Power Company was a Canadian company that operated and provided light and
power utilities in Spain but was owned mostly by Belgian holding companies. On behalf of Belgian nationals (P)
who had invested in the company, Belgium (P) sued Spain (D) on the premise that Spain (D) was responsible for
acts in violation of international law that had caused injury to the corporation and its Belgian shareholders (P).

What happened was that, since Barcelona Traction Light had foreign investors, the company issued several series
of bonds, principally in sterling. However, the Spanish Government later banned the transfer of foreign currency
from Spain, which led to the bankruptcy of the company in 1948.

Issue.

Does Belgium have the right to use its diplomatic protection for the Belgian shareholders of a Canadian company
and therefore stand before the ICJ.

Held.

In this case, the Court made a distinction between two separate entities: the company and the shareholder, which
are ruled by different law. The company was Canadian and the shareholders were Belgians. The Court emphasized
the fact that the harmful acts attributable to Spain aimed at the company’s rights and not at the shareholders’
own rights.

Thus, in its judgement of 1970, the International Court of Justice rejected the request of the Belgian government
and declared Belgium as not qualified to stand before the Court as it did not have jus standi, or recognized rights,
to exercise diplomatic protection for its nationals. The Nationality State of shareholders cannot sue diplomatic
protection.
Bayan v. Zamora, G.R. No. 138570, October 10, 2000

FACTS

The Republic of the Philippines and the United States of America entered into an agreement called the Visiting
Forces Agreement (VFA). The agreement was treated as a treaty by the Philippine government and was ratified by
then-President Joseph Estrada with the concurrence of 2/3 of the total membership of the Philippine Senate.

The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It provides for the guidelines
to govern such visits, and further defines the rights of the U.S. and the Philippine governments in the matter of
criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and
supplies.

Petitioners argued, inter alia, that the mede

ISSUE

Was the VFA unconstitutional?

RULING

[The Court DISMISSED the consolidated petitions, held that the petitioners did not commit grave abuse of
discretion, and sustained the constitutionality of the VFA.]

NO, the VFA is not unconstitutional.

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following
conditions are sufficiently met, viz:
(a) it must be under a treaty;
(b) the treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a majority of
the votes cast by the people in a national referendum; and
(c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA . The concurrence handed
by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution . . . the provision
in [in §25, Article XVIII] requiring ratification by a majority of the votes cast in a national referendum being
unnecessary since Congress has not required it.

As to the third requisite, the Court is of the firm view that the phrase “recognized as a treaty” means that the
other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting
state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence
pursuant to its Constitution, is to accord strict meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning
except where technical terms are employed, in which case the significance thus attached to them prevails. Its
language should be understood in the sense they have in common use.

Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement
because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA
possesses the elements of an agreement under international law, the said agreement is to be taken equally as a
treaty.

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that
the United States government has fully committed to living up to the terms of the VFA. For as long as the United
States of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its
obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution.
Case concerning East Timor (Portugal v. Australia), ICJ Reports, 30 June 1995

On 22 February 1991, Portugal filed an Application instituting proceedings against Australia concerning “certain
activities of Australia with respect to East Timor”, in relation to the conclusion, on 11 December 1989, of a treaty
between Australia and Indonesia which created a Zone of Co-operation in a maritime area between “the
Indonesian Province of East Timor and Northern Australia”. According to the Application, Australia had by its
conduct failed to observe the obligation to respect the duties and powers of Portugal as the Administering Power
of East Timor and the right of the people of East Timor to self-determination. In consequence, according to the
Application, Australia had incurred international responsibility vis-à-vis the people of both East Timor and
Portugal. As the basis for the jurisdiction of the Court, the Application referred to the declarations by which the
two States had accepted the compulsory jurisdiction of the Court under Article 36, paragraph 2, of its Statute. In
its Counter-Memorial, Australia raised questions concerning the jurisdiction of the Court and the admissibility of
the Application.

The Court delivered its Judgment on 30 June 1995. It began by considering Australia’s objection that there was in
reality no dispute between itself and Portugal. Australia contended that the case as presented by Portugal was
artificially limited to the question of the lawfulness of Australia’s conduct, and that the true respondent was
Indonesia, not Australia, observing that Portugal and itself had accepted the compulsory jurisdiction of the Court
under Article 36, paragraph 2, of the Statute, but that Indonesia had not. The Court found in that respect that
there was a legal dispute between the two States. The Court then considered Australia's principal objection, to
the effect that Portugal’s Application would require the Court to determine the rights and obligations of
Indonesia. Australia contended that the Court would not be able to act if, in order to do so, it were required to
rule on the lawfulness of Indonesia’s entry into and continuing presence in East Timor, on the validity of the 1989
Treaty between Australia and Indonesia, or on the rights and obligations of Indonesia under that Treaty, even if
the Court did not have to determine its validity. In support of its argument, Australia referred to the Court’s
Judgment in the case concerning Monetary Gold Removed from Rome in 1943.

After having carefully considered the arguments advanced by Portugal which sought to separate Australia’s
behaviour from that of Indonesia, the Court concluded that Australia’s behaviour could not be assessed without
first entering into the question why it was that Indonesia could not lawfully have concluded the 1989 Treaty, while
Portugal allegedly could have done so ; the very subject-matter of the Court’s decision would necessarily be a
determination whether, having regard to the circumstances in which Indonesia entered and remained in East
Timor, it could or could not have acquired the power to enter into treaties on behalf of East Timor relating to the
resources of the continental shelf. The Court took the view that it could not make such a determination in the
absence of the consent of Indonesia.

The Court then rejected Portugal’s additional argument that the rights which Australia allegedly breached were
rights erga omnes and that accordingly Portugal could require it, individually, to respect them. In the Court’s view,
Portugal’s assertion that the right of peoples to self-determination had an erga omnes character, was
irreproachable, and the principle of self-determination of peoples had been recognized by the Charter of the
United Nations and in the jurisprudence of the Court, and was one of the essential principles of contemporary
international law. However, the Court considered that the erga omnes character of a norm and the rule of
consent to jurisdiction were two different things, and that it could not in any event rule on the lawfulness of the
conduct of a State when its judgment would imply an evaluation of the lawfulness of another State which was not
a party to the case.

The Court then considered another argument of Portugal which rested on the premise that the United Nations
resolutions, and in particular those of the Security Council, could be read as imposing an obligation on States not
to recognize any authority on the part of Indonesia over East Timor and, where the latter is concerned, to deal
only with Portugal. Portugal maintained that those resolutions would constitute “givens” on the content of which
the Court would not have to decide de novo. The Court took note, in particular, of the fact that for the two
Parties, the territory of East Timor remained a non-self-governing territory and its people had the right to self-
determination, but considered that the resolutions could not be regarded as “givens” constituting a sufficient
basis for determining the dispute between the Parties. It followed from all the foregoing considerations that the
Court would necessarily first have to rule upon the lawfulness of Indonesia’s conduct. Indonesia’s rights and
obligations would thus constitute the very subject-matter of such a judgment made in the absence of that State’s
consent, which would run directly counter to the principle according to which “the Court can only exercise
jurisdiction over a State with its consent”. The Court accordingly found that it was not required to consider
Australia’s other objections and that it could not rule on Portugal’s claims on the merits.
FACTS
 Portugal administered East Timor as a non-self-governing territory under United Nation Chapter XI.
 Later, due to internal disturbances caused by factions calling for self-determination, Portugal withdrew from
East Timor.
 Soon after its departure, Indonesia invaded and incorporated East Timor as part of its territorial dominion.
 Later, Australia acknowledged de facto Indonesia's annexation of East Timor which was then followed by de
jure recognition in the following year.
 A number of talks took place between Portugal and Australia to resolve the issue concerning undefined
continental shelf between Indonesia and Australia known as the 'Timor Gap'.
 However, failure to resolve the matter completely resulted in a treaty between the two countries for
exploration and exploitation of natural resources known as the ‘Treaty between Australia and the Republic of
Indonesia on the zone of cooperation in an area between the Indonesian province of East Timor and Northern
Australia.”

ISSUE
Whether the treaty over the continental shelf between Australia and Indonesia was lawful or not.

RULING

 This is the issue of principle of self-determination, which literally means the right to control one's own destiny.
 By virtue of the principle of equal rights and self-determination of people enshrined in the Charter of the
United Nations, all people have the right to determine, without external interference, their political statute
and to pursue their economic, social and cultural development.
 Portugal had not officially relinquished its powers over East Timor, withdrawal of Portugal from East Timor
signalled the call for self-determination by the people of East Timor.
 East Timor remained a non-self governing territory until force occupation by Indonesia.
 Portugal reiterated that East Timor's call for self-determination arose from UN Charters and that it needed to
be respected.
 The treaty by Australia with Indonesia had also denied sovereignty over natural resources to people East
Timor.
 On the other hand, Portugal is meddling in the internal affairs of Indonesia because as at the time when the
treaty of ‘Continental Shelf' was entered into by Australia and Indonesia, Portugal had effectively withdrawn
its control and administration over East Timor. Indonesia, had therefore maintained effective control of East
Timor firstly through effective occupation and the subsequent request by the ‘Peoples Assembly', a
representative body of East Timor to be integrated into Indonesia as its 47th province.
 Furthermore, it would be a violation of the Art 36 (1) to bring proceedings where a state had not consented
to the jurisdiction of ICJ in the subject matter.
 Portugal cannot dictate to two sovereign states that had legitimately entered into a treaty that such
conduct was not valid.
Case concerning Preah Vihear Temple (Cambodia v. Thailand), ICJ Reports, 15 June 1962

Cambodia complained that Thailand had occupied a piece of its territory surrounding the ruins of the Temple of
Preah Vihear, a place of pilgrimage and worship for Cambodians, and asked the Court to declare that territorial
sovereignty over the Temple belonged to it and that Thailand was under an obligation to withdraw the armed
detachment stationed there since 1954.

Thailand filed preliminary objections to the Court’s jurisdiction, which were rejected in a Judgment given on 26
May 1961.

In its Judgment on the merits, rendered on 15 June 1962, the Court noted that a Franco-Siamese Treaty of 1904
provided that, in the area under consideration, the frontier was to follow the watershed line, and that a map
based on the work of a Mixed Delimitation Commission showed the Temple on the Cambodian side of the
boundary. Thailand asserted various arguments aimed at showing that the map had no binding character. One of
its contentions was that the map had never been accepted by Thailand or, alternatively, that if Thailand had
accepted it, it had done so only because of a mistaken belief that the frontier indicated corresponded to the
watershed line. The Court found that Thailand had indeed accepted the map and concluded that the Temple was
situated on Cambodian territory. It also held that Thailand was under an obligation to withdraw any military or
police force stationed there and to restore to Cambodia any objects removed from the ruins since 1954.

Principle:
- Principle of acquiescence
- International law uses of principle of equity, which is a principle of law used in civilized nation and
international law adopted the same.

Fact:
 Preah temple was an ancient and significant temple due to its cultural and historical value. It was situated
on the border of Thailand and Cambodia.
 Though Thailand was the historical owner of that area, Cambodia (when it was still a colony of France)
came to an agreement with Thailand to divide the border according to the watershed under the Franco-
Siamese Treaty of 1904, wherein in the area under consideration, the frontier was to follow the
watershed line, and that a map based on the work of a Mixed Delimitation Commission showed the
Temple on the Cambodian side of the boundary.
 Since Thailand was occupying the area, Cambodia asked the court to declare that territorial sovereignty
over the temple belonged to it and that Thailand has to withdraw the armed detachment stationed there.
 Thailand asserted various arguments aimed at showing that the map had no binding character. One of its
contentions was that the map had never been accepted by Thailand or, alternatively, that if Thailand had
accepted it, it had done so only because of a mistaken belief that the frontier indicated corresponded to
the watershed line.

Issue: Whether Cambodia had sovereignty over the territory of preah temple?

Decision:
 The Court found that Thailand had indeed accepted the map and concluded that the Temple was situated
on Cambodian territory.
 Since the commission that marked the map was a joint commission from both parties and was adopted by
them without any objection, and it very clearly marked the temple as part of Cambodia, Cambodia had
sovereignty over that area according to their treaty.
 It also held that Thailand was under an obligation to withdraw any military or police force stationed there
and to restore to Cambodia any objects removed from the ruins.
Case concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), ICJ Reports,
27 June 1986

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 that said 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, Nicaragua’s 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 it 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, 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.
Case concerning the Right of Passage Over Indian Territory (Portugal v. India), ICJ Reports, 12 April 1960

Facts
 The Portuguese possessions in India included the two enclaves of Dadra and Nagar-Aveli which, in mid-1954,
had passed under an autonomous local administration. Portugal claimed that it had a right of passage to those
enclaves and between one enclave and the other to the extent necessary for the exercise of its sovereignty
and subject to the regulation and control of India; it also claimed that, in July 1954, contrary to the practice
previously followed, India had prevented it from exercising that right and that that situation should be
redressed.

India argued before the Court that practice between only two states was not sufficient to form a local custom.

Issue
Does Portugal have a right to free passage over Indian territory to access its enclaves?

Decision
A right of passage for non-military civilians exists as a rule of regional customary international law between India
and Portugal.

The Court rejected India’s reasoning, finding no reason why a century and a quarter of practice based on mutual
rights and obligations was insufficient for local custom to arise. This local practice, thus, prevailed over any
general
rules.

Chorzów Factory Case (Germany v. Poland) 1928 PCIJ Ser. A, No. 17

Principle:
It is a general principle of law as well as International law, that any breach of agreement creates an obligation to
make reparation.

Fact:
 There was an agreement between Germany and Poland known as the “Geneva Upper Silesia convention of
1922” which provided that on transfer of sovereignty of certain territories from Germany to Poland after the
1st world war, existing proprietary right were to be maintained except that the Polish Government was
granted a right of expropriation under certain condition with respects of all property belonging to German
nationals in Upper Silesia.
 The present dispute arose when Poland seized companies in the area, in breach of its international obligation
under the Upper Silesia convention of 1922. Germany demanded compensation from Poland.

Issues:
1. Whether a state can be held responsible for expropriation of alien property.
2. Whether it is a basic rule of international law that reparation is to be made for violations of international
law

Decision:
The reparation of wrong may consist in an indemnity corresponding to the damage which is contrary of
International Law. Right or interests of an individual the violation of which rights cause damages are always in a
different plain to rights belonging to a state, which rights may also be infringed by the same act.

Reasoning:
1. The action of Poland was not expropriation in its real sense, it was rather a seizure of property, right and
interest which could not be expropriated even against compensation, save under the special conditions
fixed by Art. 7 of the Upper Silesia convention of 1922. In doing so, therefore, Poland acted contrary to its
obligations.
2. It is general principle of international law and even a general concept of law that a breach of an
agreement involves a duty to make reparation. Reparation is the expendable complement of a failure to
apply a convention and there is no necessity for this to be stated in the convention itself. This case is one
of an unlawful expropriation and in such cases expropriating states must in addition to paying the
compensation due in respect of lawful expropriation, pay also damages for any loss continued by the
injured party.
Corfu Channel Case (UK v. Albania). ICJ Reports

Brief Fact Summary:

The fact that the Albanian (P) authorities did not make the presence of mines in its waters was the basis of the
United Kingdom (D) claim against them.

Synopsis of Rule of Law:

International obligations in peace time are created through elementary consideration.

Facts:
The explosion of mines in the Albanian (P) waters resulted in the death of a British naval personnel. It was on this
basis that the United Kingdom (D) claimed that Albania (P) was internationally responsible for damages.

 There were explosions of mines by which some British warships suffered damage while passing through the
Corfu Channel in 1946, in a part of the Albanian waters which had been previously swept.
 The ships were severely damaged and members of the crew were killed.
 The United Kingdom seized the Court of the dispute and accused Albania of having laid or allowed a third
State to lay the mines after mine-clearing operations had been carried out by the Allied naval authorities.
 The case had previously been brought before the United Nations and, in consequence of a recommendation
by the Security Council, had been referred to the Court.

Issue:
Are international obligations in time of peace created through elementary consideration?

Held:
 Yes. International obligations in peace time are created through elementary consideration. Every state has an
obligation not to knowingly allow its territory to be used for acts contrary to the rights of other states.
 International decisions recognized circumstantial evidence, and such evidence in this case indicated that the
laying of the minefield which caused the explosions could not have been accomplished without the
knowledge of the Albanian government.
 Albania had the responsibility to warn British warships of the danger the minefields exposed them to. This
responsibility flowed from well-recognized principles of humanity which were even more exacting in time of
peace than in war, from the principle of freedom of maritime communication, and from the obligation of all
states not to knowingly allow their territory to be used contrary to the rights of other states.
 The Court also decided that the United Kingdom did not violate the sovereignty of Albania when it passed
through Albanian waters during that time.
 In times of peace, states had the right to send their warships through straits used for international navigation
between two parts of the high seas without the previous authorization of a coastal state, provided the
passage was innocent.
 However, when the Royal Navy swept for mines, it violated the sovereignty of Albania. This operation did not
have the consent of international mine clearance organisations, could not be justified as the exercise of a right
of innocent passage, and international law did not allow a state to assemble a large number of warships in the
territorial waters of another state and to carry out mine-sweeping in those waters.
 The United Kingdom’s arguments regarding intervention and self-protection were not persuasive.

In May 1946 British warships passed through the Corfu Channel, in Albanian territorial waters, and were fired
upon by Albanian coastal batteries. In October 1946, when two British warships passed through the Corfu Channel
the ships struck mines and were damaged. In November 1946 the British Royal Navy swept for mines in the Corfu
Channel in Albanian waters without Albanian consent. The Court held that Albania was responsible for the
October 1946 explosion in Albanian waters, and for the damage and loss of human life that resulted. A decision
regarding the amount of compensation was reserved for further consideration.

International decisions recognized circumstantial evidence, and such evidence in this case indicated that the
laying of the minefield which caused the explosions in October 1946 could not have been accomplished without
the knowledge of the Albanian government. Albania had the responsibility to warn British warships of the danger
the minefields exposed them to. This responsibility flowed from well-recognized principles of humanity which
were even more exacting in time of peace than in war, from the principle of freedom of maritime communication,
and from the obligation of all states not to knowingly allow their territory to be used contrary to the rights of
other states.

The Court decided that the United Kingdom did not violate the sovereignty of Albania when it passed through
Albanian waters in October 1946. In times of peace, states had the right to send their warships through straits
used for international navigation between two parts of the high seas without the previous authorization of a
coastal state, provided the passage was innocent. However, when the Royal Navy swept for mines in November
1946, it violated the sovereignty of Albania. This operation did not have the consent of international mine
clearance organisations, could not be justified as the exercise of a right of innocent passage, and international law
did not allow a state to assemble a large number of warships in the territorial waters of another state and to carry
out mine-sweeping in those waters. The United Kingdom’s arguments regarding intervention and self-protection
were not persuasive.
Kuroda v. Jalandoni, G.R. No. L-2662, 26 March 1949

Facts
 Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of
the Japanese Imperial Forces in The Philippines, was charged before a military Commission convened by the
Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and failed "to
discharge his duties as such command, permitting them to commit brutal atrocities and other high crimes
against noncombatant civilians and prisoners of the Imperial Japanese Forces in violation of the laws and
customs of war"
 He went to ICJ seeking to establish the illegality of Executive Order No. 68 of the President of the Philippines:
to enjoin and prohibit respondents Melville S. Hussey and Robert Port from participating in the prosecution of
petitioner's case before the Military Commission and to permanently prohibit respondents from proceeding
with the case of petitioners.

ISSUES:
1) Whether or not E.O. 68 is Constitutional
2) Whether or not the Military Commission has no Jurisdiction to try petitioner for acts committed in violation of
the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and
signed the second only in 1947
3) Whether or not Attorneys Hussey and Port have no personality as prosecution United State not being a party in
interest in the case.

Held:
1) The promulgation of said executive order is an exercise by the President of his power as Commander in chief of
all our armed forces. An importance incident to a conduct of war is the adoption of measure by the military
command not only to repel and defeat the enemies but to seize and subject to disciplinary measure those
enemies who in their attempt to thwart or impede our military effort have violated the law of war. The President
as Commander in Chief is fully empowered to consummate this unfinished aspect of war namely the trial and
punishment of war criminal through the issuance and enforcement of Executive Order No. 68

2)

Generally accepted policies of international law form part of the Constitution pursuant to the incorporation clause
stipulated in Section 2, Article II of the Constitution. The rules and regulation of Hague Convention form part of
and are wholly based on generally accepted principles of international law. Such rules and regulations, therefore,
form part of the law of the Philippines regardless of whether or not it was a signatory to the same. Thus, Kuroda
may be charged for violation of its rules and regulations.

3) Military Commission is a special military tribunal governed by a special law and not by the Rules of court which
govern ordinary civil court. The appointment of the two American attorneys is not violative of our nation
sovereignty. It is only fair and proper that United States, which has submitted the vindication of crimes against her
government and her people to a tribunal of our nation should be allowed representation in the trial of those very
crimes. It is of common knowledge that the United State and its people have been equally if not more greatly
aggrieved by the crimes with which petitioner stands charged before the Military Commission. It can be
considered a privilege for our Republic that a leader nation should submit the vindication of the honor of its
citizens and its government to a military tribunal of our country.
Legality of the Use by a State of j Weapons in Armed Conflict (Advisory Opinion)

Brief Fact Summary.

An advisory opinion as to whether states are permitted to use nuclear weapons under international law was
placed before the International Court of Justice by the U.N. General Assembly.

Synopsis of Rule of Law.

Under certain circumstance, threat or use of nuclear weapons is permitted under international law.

Facts.
A request for an advisory opinion as to whether states are permitted to use nuclear weapons under international
law was laid on the table of the International Court of Justice by the U.N. General Assembly.

Issue.
Under certain circumstances, are threats or use of nuclear weapons permitted under international law?

Held.
Yes. Under certain circumstance, threat or use of nuclear weapons are permitted under international law. The
threat or use of nuclear weapons in all circumstances is not authorized or prohibited by either the customary or
conventional international nuclear law.

Under the U.N. Charter, the threat or use of nuclear weapons would be considered legal if all requirements of
Article 51 which deals with state’s rights to self-defense are met. However, in whatever the situation can be, a
state obligation exists to pursue in good faith and bring to a conclusion negotiations leading to nuclear
disarmament in all its aspect under strict and effective international control.

Discussion.
The idea that despite steps taken by a very large part of the international community towards complete nuclear
disarmament, in which no customary rule specifically proscribe the threat or use of nuclear weapons that exists is
illustrated by this case. Reservations about the notion that there are no imaginable circumstances warranting
their use have been expressed by too many dissenters.
Medellin v. Texas, 552 U.S. 491 (2008)

RULE:
Not all international law obligations automatically constitute binding federal law enforceable in United States
courts. A distinction is recognized between treaties that automatically have effect as domestic law, and those
that--while they constitute international law commitments--do not by themselves function as binding federal law.
A treaty is equivalent to an act of the legislature, and hence self-executing, when it operates of itself without the
aid of any legislative provision. When, in contrast, treaty stipulations are not self-executing they can only be
enforced pursuant to legislation to carry them into effect. In sum, while treaties may comprise international
commitments, they are not domestic law unless Congress has either enacted implementing statutes or the treaty
itself conveys an intention that it be "self-executing" and is ratified on those terms. What is meant by "self-
executing" is that the treaty has automatic domestic effect as federal law upon ratification. Conversely, a "non-
self-executing" treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty
has domestic effect depends upon implementing legislation passed by Congress.

FACTS:
Jose Medellin (D), a Mexican national was found guilty for being part of the gang rape and murder of two teenage
girls in Houston. He argued that the state had violated his rights under the Vienna Convention in which the United
States is a party. Under the Vienna Convention, any foreign national detained for any crime has a right to contact
his consulate.

Though his appeal was dismissed by the Supreme Court, the Court took up his case again and Medellin (D)
argument rested in part on a holding by the International Court of Justice in Case Concerning Avena and Other
Mexican Nationals (Mex v U.S.), 2004 I.C.J. 12 that the U.S. had violated the Vienna Convention rights of 51
Mexican national (including Medellin (D) and that their state-court convictions must be reconsidered, regardless
of any forfeiture of the right to raise the Vienna Convention claims because of a failure to follow state rules
governing criminal convictions.

Based on these, Medellin (D) argued that the Vienna Convention granted him an individual right that state courts
must respect. A memorandum from the U.S. President that instructed state courts to comply with the I.C.J’s
rulings by rehearsing the cases was also cited by Medellin (D). He further argued that the Constitution gives the
President broad power to ensure that treaties are enforced, and that this power extends to the treatment of
treaties in state court proceedings.

ISSUE:
(1) Are state courts required under the U.S. Constitution to honor a treaty obligation of the United States by
enforcing a decision of the International Court of Justice?

(2) Are states courts required by the U.S. Constitution to provide review and reconsideration of a conviction
without regard to state procedural default rules as required by a memorandum by the President?

ANSWER:
(1). No. States courts are not required under the U.S. Constitution to honor a treaty obligation of the United
States by enforcing a decision of the International Court of Justice. What the Vienna Convention stipulate is that if
a person detained by a foreign country asks, the authorities of the detaining national must, without delay, inform
the consular post of the detainee of the detention.

(2). State courts are not required by the U.S. Constitution to provide review and reconsideration of a conviction
without regard to state procedural default rules as required by a Memorandum by the President. The presidential
memorandum was an attempt by the Executive Branch to enforce a non-self-executing treaty without the
necessary congressional action, giving it no binding authority on state courts.
Mijares v. Ranada, G.R. No. 139325, April 12, 2005

FACTS:
Petitioners Mijares, et al.*, all of whom suffered human rights violations during the Marcos era have chosen to do
battle with the Marcos estate. They obtained a final judgment in their favor against the Estate of the late
Ferdinand Marcos. The US District Court, presided by Judge Manuel L. Real, awarded the plaintiff class a total of
amount of roughly 1.9 Billion U.S. dollars in compensatory and exemplary damages for tortuous violations of
international law in the US District Court of Hawaii. This final judgment was affirmed by the US Court of Appeals.
As a consequence to the enforcement, petitioners filed a complaint with the Regional Trial Court of Makati, paying
Php 410.00 as docket and filing fees based on Rule 141, Section 7(b) where the value of the subject matter is
incapable of pecuniary estimation. However, the Estate of Marcos filed a motion to dismiss alleging the non-
payment of the correct filing fees. The Marcos Estate cited the Supreme Circular No. 7 pertaining to the proper
computation and payment of docket fees. The Regional Trial Court of Makati dismissed complaint filed by the
petitioners stating that the subject matter was capable of pecuniary estimation as it involved a judgment
rendered by a foreign court ordering the payment of a definite sum of money allowing for the easy determination
of the value of the foreign judgment. As such, the proper filing fee was P472 Million, in order that they be able to
enforce a judgment awarded them by a foreign court.

ISSUES:
Whether or not a foreign judgment can be recognized in the Philippines

RULING:
YES. There is no obligatory rule derived from treaties or conventions that requires the Philippines to recognize
foreign judgments, or allow a procedure for the enforcement thereof. By virtue of the incorporation clause of the
Constitution, generally accepted principles of international law form part of the laws of the land even if they do
not derive from treaty obligations. The classical formulation in international law sees those customary rules
accepted as binding result from the combination two elements: the established, widespread, and consistent
practice on the part of States; and a psychological element known as the opinion juris sive necessitatis (opinion as
to law or necessity) as a belief that the practice in question is rendered obligatory by the existence of a rule of law
requiring it.

Even there’s no applicable theory behind the recognition and enforcement of foreign judgments or a universal
treaty rendering it obligatory force, there is consensus that the viability of such recognition and enforcement is
essential. In addition, the rules of comity, utility and convenience of nations have established a usage among
civilized states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected and
rendered efficacious under certain conditions that may vary in different countries.
North Sea Continental Shelf Cases, ICJ Reports, 20 February 1969

Facts of the Case:

Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle (A-B and C-D). An
agreement on further prolongation of the boundary proved difficult because Denmark and Netherlands wanted
this prolongation to take place based on the equidistance principle (B-E and D-E) where as Germany was of the
view that, together, these two boundaries would produce an inequitable result for her. Germany stated that due
to its concave coastline, such a line would result in her loosing out on her share of the continental shelf based on
proportionality to the length of its North Sea coastline. The Court had to decide the principles and rules of
international law applicable to this delimitation. In doing so, the Court had to decide if the principles espoused by
the parties were binding on the parties either through treaty law or customary international law.

Questions before the Court (as relevant to this post):

Is Germany under a legal obligation to accept the equidistance-special circumstances principle, contained in
Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a customary international law rule
or on the basis of the Geneva Convention?

The Court’s Decision:

No. The use of the equidistance method had not crystallised into customary law and the method was not
obligatory for the delimitation of the areas in the North Sea related to the present proceedings.

For a customary rule to emerge the Court held that it needed: (1) very widespread and representative
participation in the Convention, including States whose interests were specially affected (in this case, they were
coastal States) (i.e. generality); and (2) virtually uniform practice (i.e. consistent and uniform usage) undertaken in
a manner that demonstrates (3) a general recognition of the rule of law or legal obligation (i.e. opinio juries). In
the North Sea Continental Shelf cases the court held that the passage of a considerable period of time was
unnecessary (i.e. duration) for the formation of a customary law.

The Court held that the first criteria was not met. The number of ratifications and accessions to the Convention
(39 States) were not adequately representative or widespread. It emphasized that the duration taken for a
customary law rule to emerge is not as important as widespread and representative participation, uniform usage,
and the existence of an opinio juris.
Nuclear Tests Case (Australia & New Zealand v. France)

Brief Fact Summary.

Australia and New Zealand (P) requested France (D) to put a halt to atmospheric nuclear test in the South Pacific.

Synopsis of Rule of Law.

Declaration made through unilateral acts may have the effect of creating legal obligations.

Facts.
A series of nuclear tests was completed by France (D) in the South Pacific. This action made Australia and New
Zealand (P) to apply to the I.C.J. demanding that France (D) cease testing immediately. Before the case could be
completed, France (D) announced it had completed the test and did not plan any further test. So France (D)
moved for the dismissal of the application.
Issue. May declaration made through unilateral act has effect of creating legal obligations?

Held.
Yes. Declaration made through unilateral acts may have the effect of creating legal obligations. In this case, the
statement made by the President of France must be held to constitute an engagement of the State in regard to
the circumstances and intention with which they were made. Therefore, these statement made by the France (D)
are relevant and legally binding. Application was dismissed.

Discussion.
The unilateral statements made by French authorities were first relayed to the government of Australia. There
was no need for the statements to be directed to any particular state for it to have legal effect. The general nature
and characteristics of the statements alone were relevant for evaluation of their legal implications.
101. REQUEST FOR AN EXAMINATION OF THE SITUATION IN ACCORDANCE WITH PARAGRAPH 63 OF THE
COURT'S JUDGMENT OF 20 DECEMBER 1974 IN THE NUCLEAR TESTS (NEW ZEALAND v. FRANCE) CASE

Order of 22 September 1995

The Court handed down its decision that New Zealand's Request for an Examination of the Situation in accordance
with Paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests Case (New Zealand v. France), made on 21
August 1995, "does not fall within the provisions of the said paragraph 63 and must consequently be dismissed."

Consequently, New Zealand's request for provisional measures and the applications for permission to intervene
submitted by Australia, Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia as
well as the declarations of intervention made by the last four States, all of which are proceedings incidental to
New Zealand's main request, likewise had to be dismissed.

The Court limited the present proceedings to the examination of the following question: "Do the Requests
submitted to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of
paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New
Zealand v. France)?". In the Court's view that question has two elements. The first element concerns the courses
of procedure envisaged by the Court in paragraph 63 of its 1974 Judgment, when it stated that "the Applicant
could request an examination of the situation in accordance with the provisions of the Statute"; the other
concerns the question whether the "basis" of that Judgment has been "affected" within the meaning of paragraph
63 thereof.

In its examination of that question the Court found in the first place that by inserting in paragraph 63 the above-
mentioned phrase, the Court did not exclude a special procedure for access to it (unlike those mentioned in the
Court's Statute, like the filing of a new application, or a request for interpretation or revision, which would have
been open to the Applicant in any event). Secondly, however, the Court found that that special procedure would
only be available to the Applicant if circumstances were to arise which affected the basis of the 1974 Judgment.
And that, it found, was not the case, as the basis of that Judgment was France's undertaking not to conduct any
further atmospheric nuclear tests and only a resumption of nuclear tests in the atmosphere would therefore have
affected it.

The decision was taken by 12 votes to 3. Three declarations, one separate opinion and three dissenting opinions
were appended to the Order.

Summary of the Order

In its Order the Court recalls that on 21 August 1995 New Zealand filed a "Request for an Examination of the
Situation" in accordance with paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests Case (New Zealand
v. France); it is indicated in the Request that it "aris[es] out of a proposed action announced by France which will,
if carried out, affect the basis of the Judgment rendered by the Court on 20 December 1974 in the Nuclear Tests
Case (New Zealand v. France)"; and that "the immediate circumstance giving rise to the present phase of the Case
is a decision announced by France in a media statement of 13 June 1995" by the President of the French Republic,
according to which "France would conduct a final series of eight nuclear weapons tests in the South Pacific
starting in September 1995". New Zealand expressly founds its "Request for an Examination of the Situation" on
paragraph 63 of the Judgment of 20 December 1974 (cited below). At the end of its Request, New Zealand states
that the rights for which it seeks protection all fall within the scope of the rights invoked in paragraph 28 of its
Application of 1973, but that, at the present time, it seeks recognition only of those rights that would be adversely
affected by entry into the marine environment of radioactive material as a result of the further tests to be carried
out at Mururoa or Fangataufa Atolls, and of its entitlement to protection and to the benefit of a properly
conducted Environmental Impact Assessment; within these limits, New Zealand asks the Court to adjudge and
declare:

"(i)that the conduct of the proposed nuclear tests will constitute a violation of the rights under international law
of New Zealand, as well as of other States; further or in the alternative;

(ii)that it is unlawful for France to conduct such nuclear tests before it has undertaken an Environmental Impact
Assessment according to accepted international standards. Unless such an assessment establishes that the tests
will not give rise, directly or indirectly, to radioactive contamination of the marine environment the rights under
international law of New Zealand, as well as the rights of other States, will be violated."

The Court further recalls that on the same day New Zealand filed a request for the following provisional measures:

"(1) that France refrain from conducting any further nuclear tests at Mururoa and Fangataufa Atolls;
(2)that France undertake an environmental impact assessment of the proposed nuclear tests according to
accepted international standards and that, unless the assessment establishes that the tests will not give rise to
radioactive contamination of the marine environment, France refrain from conducting the tests;

(3)that France and New Zealand ensure that no action of any kind is taken which might aggravate or extend the
dispute submitted to the Court or prejudice the rights of the other Party in respect of the carrying out of whatever
decisions the Court may give in this case".

The Court also refers to the submission of Applications for Permission to Intervene by Australia, Samoa, Solomon
Islands, the Marshall Islands and the Federated States of Micronesia, as well as to the declarations on intervention
made by the last four States. It then refers to the presentation, at the invitation of the President of the Court, of
informal aides-m‚moire by New Zealand and France and to the public sittings held on 11 and 12 September 1995.
The Court then summarizes the views expressed by the two States in the course of the proceedings.

The Court finally observes that New Zealand's "Request for an Examination of the Situation" submitted under
paragraph 63 of the 1974 Judgment, even if it is disputed in limine whether it fulfils the conditions set in that
paragraph, must nonetheless be the object of entry in the General List of the Court for the sole purpose of
enabling the latter to determine whether those conditions are fulfilled; and that it has accordingly instructed the
Registrar.

*
The Court begins by citing paragraph 63 of the Judgment of 20 December 1974, which provides: "Once the Court
has found that a State has entered into a commitment concerning its future conduct it is not the Court's function
to contemplate that it will not comply with it. However, the Court observes that if the basis of this Judgment were
to be affected, the Applicant could request an examination of the situation in accordance with the provisions of
the Statute; the denunciation by France, by letter dated 2 January 1974, of the General Act for the Pacific
Settlement of International Disputes, which is relied on as a basis of jurisdiction in the present case, cannot
constitute by itself an obstacle to the presentation of such a request."

It then indicates that the following question has to be answered in limine: "Do the Requests submitted to the
Court by the Government of New Zealand on 21 August 1995 fall within the provisions of paragraph 63 of the
Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealand v. France)?"; and
that the present proceedings have consequently been limited to that question. The question has two elements;
one concerns the courses of procedure envisaged by the Court in paragraph 63 of its 1974 Judgment, when it
stated that "the Applicant could request an examination of the situation in accordance with the provisions of the
Statute"; the other concerns the question whether the "basis" of that Judgment has been "affected" within the
meaning of paragraph 63 thereof.

As to the first element of the question before it, the Court recalls that New Zealand expresses the following view:
"paragraph 63 is a mechanism enabling the continuation or the resumption of the proceedings of 1973 and 1974.
They were not fully determined. The Court foresaw that the course of future events might in justice require that
New Zealand should have that opportunity to continue its case, the progress of which was stopped in 1974. And
to this end in paragraph 63 the Court authorized these derivative proceedings. ... the presentation of a Request
for such an examination is to be part of the same case and not of a new one." New Zealand adds that paragraph
63 could only refer to the procedure applicable to the examination of the situation once the Request was
admitted; it furthermore explicitly states that it is not seeking an interpretation of the 1974 Judgment under
Article 60 of the Statute, nor a revision of that Judgment under Article 61.

France, for its part, stated as follows: "As the Court itself has expressly stated, the possible steps to which it
alludes are subject to compliance with the 'provisions of the Statute' ... The French Government incidentally
further observes that, even had the Court not so specified, the principle would nevertheless apply: any activity of
the Court is governed by the Statute, which circumscribes the powers of the Court and prescribes the conduct
that States must observe without it being possible for them to depart therefrom, even by agreement ...; as a
result and a fortiori, a State cannot act unilaterally before the Court in the absence of any basis in the Statute.
Now New Zealand does not invoke any provision of the Statute and could not invoke any that would be capable of
justifying its procedure in law. It is not a request for interpretation or revision (a), nor a new Application, whose
entry in the General List would, for that matter, be quite out of the question (b)".

The Court observes that in expressly laying down, in paragraph 63 of its Judgment of 20 December 1974, that, in
the circumstances set out therein, "the Applicant could request an examination of the situation in accordance
with the provisions of the Statute", the Court cannot have intended to limit the Applicant's access to legal
procedures such as the filing of a new application (Statute, Art. 40, para. 1), a request for interpretation (Statute,
Art. 60) or a request for revision (Statute, Art. 61), which would have been open to it in any event; by inserting the
above-mentioned words in paragraph 63 of its Judgment, the Court did not exclude a special procedure, in the
event that the circumstances defined in that paragraph were to arise, in other words, circumstances which
"affected" the "basis" of the Judgment. The Court goes on to point out that such a procedure appears to be
indissociably linked, under that paragraph, to the existence of those circumstances; and that if the circumstances
in question do not arise, that special procedure is not available.

*
The Court then considers that it must determine the second element of the question raised, namely whether the
basis of its Judgment of 20 December 1974 has been affected by the facts to which New Zealand refers and
whether the Court may consequently proceed to examine the situation as contemplated by paragraph 63 of that
Judgment; to that end, it must first define the basis of that Judgment by an analysis of its text. The Court observes
that, in 1974, it took as the point of departure of its reasoning the Application filed by New Zealand in 1973; that
in its Judgment of 20 December 1974 it affirmed that "in the circumstances of the present case, as already
mentioned, the Court must ascertain the true subject of the dispute, the object and purpose of the claim ... In
doing so it must take into account not only the submission, but the Application as a whole, the arguments of the
Applicant before the Court, and other documents referred to ..." (I.C.J. Reports 1974, p. 467, para. 31). Referring,
among other things, to a statement made by the Prime Minister of New Zealand, the Court found that "for
purposes of the Application, the New Zealand claim is to be interpreted as applying only to atmospheric tests, not
to any other form of testing, and as applying only to atmospheric tests so conducted as to give rise to radio-active
fall-out on New Zealand territory" (I.C.J. Reports 1974, p. 466, para. 29). In making, in 1974, this finding and the
one in the Nuclear Tests Case (Australia v. France) (for the Court, the two cases appeared identical as to their
subject-matter which concerned exclusively atmospheric tests), the Court had addressed the question whether
New Zealand, when filing its 1973 Application might have had broader objectives than the cessation of
atmospheric nuclear tests - the "primary concern" of the Government of New Zealand, as it now puts it. The Court
concludes that it cannot now reopen this question since its current task is limited to an analysis of the Judgment
of 1974.

The Court recalls that moreover it took note, at that time, of the communiqu‚ issued by the Office of the President
of the French Republic on 8 June 1974, stating that "in view of the stage reached in carrying out the French
nuclear defence programme France will be in a position to pass on to the stage of underground explosions as soon
as the series of tests planned for this summer is completed" (I.C.J. Reports 1974, p. 469, para. 35); and to other
official declarations of the French authorities on the same subject, made publicly outside the Court and erga
omnes, and expressing the French Government's intention to put an end to its atmospheric tests; that, comparing
the undertaking entered into by France with the claim asserted by New Zealand, it found that it faced "a situation
in which the objective of the Applicant [had] in effect been accomplished" (I.C.J. Reports 1974, p. 475, para. 55)
and accordingly indicated that "the object of the claim having clearly disappeared, there is nothing on which to
give judgment" (I.C.J. Reports 1974, p. 477, para. 62). The Court concludes that the basis of the 1974 Judgment
was consequently France's undertaking not to conduct any further atmospheric nuclear tests; that it was only,
therefore, in the event of a resumption of nuclear tests in the atmosphere that that basis of the Judgment would
have been affected; and that that hypothesis has not materialized.

The Court observes further that in analysing its Judgment of 1974, it reached the conclusion that that Judgment
dealt exclusively with atmospheric nuclear tests; that consequently, it is not possible for the Court now to take
into consideration questions relating to underground nuclear tests; and that the Court cannot, therefore, take
account of the arguments derived by New Zealand, on the one hand from the conditions in which France has
conducted underground nuclear tests since 1974, and on the other from the development of international law in
recent decades - and particularly the conclusion, on 25 November 1986, of the Noumea Convention - any more
than of the arguments derived by France from the conduct of the New Zealand Government since 1974. It finally
observes that its Order is without prejudice to the obligations of States to respect and protect the natural
environment, obligations to which both New Zealand and France have in the present instance reaffirmed their
commitment.

The Court therefore finds that the basis of the 1974 Judgment has not been affected; that New Zealand's Request
does not therefore fall within the provisions of paragraph 63 of that Judgment; and that that Request must
consequently be dismissed. It also points out that following its Order, the Court has instructed the Registrar to
remove that Request from the General List as of 22 September 1995.

*
Finally the Court indicates that it must likewise dismiss New Zealand's "Further Request for the Indication of
Provisional Measures" as well as the applications for permission to intervene submitted by Australia, Samoa,
Solomon Islands, the Marshall Islands and the Federated States of Micronesia and the declarations of intervention
made by the last four States - all of which are proceedings incidental to New Zealand's main request.
Pharmaceutical & Health Care Assn. of the Phil. v. Health Secretary Duque, et al., G.R. No. 173034, October 19,
2007

FACTS
Petition for certiorari seeking to nullify the Revised Implementing Rules and Regulations (RIRR) of E.O. 51 (Milk
Code). Petitioner claims that the RIRR is not valid as it contains provisions that are not constitutional and go
beyond what it is supposed to implement. Milk Code was issued by President Cory Aquino under the Freedom
Constitution on Oct.1986. One of the preambular clauses of the Milk Code states that the law seeks to give effect
to Art 11 of the Int’l Code of Marketing and Breastmilk Substitutes(ICBMS), a code adopted by the World Health
Assembly(WHA). From 1982-2006, The WHA also adopted severe resolutions to the effect that breastfeeding
should be supported, hence, it should be ensured that nutrition and health claims are not permitted for
breastmilk substitutes. In 2006, the DOH issued the assailed RIRR.

ISSUE
Sub-Issue: W/N the pertinent int’l agreements entered into by the Phil are part of the law of the land and may be
implemented by DOH through the RIRR. If yes, W/N the RIRR is in accord with int’l agreements

Main Issue: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave abuse of discretion amounting
to lack of excess of jurisdiction and in violation of the Constitution by promulgating the RIRR.

HELD

Sub-issue:
Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by transformation (thru constitutional
mechanism such as local legislation) or incorporation (mere constitutional declaration i.e treaties) The ICBMS and
WHA resolutions were not treaties as they have not been concurred by 2/3 of all members of the Senate as
required under Sec, 21, Art 8. However, the ICBMS had been transformed into domestic law through a local
legislation such as the Milk Code. The Milk Code is almost a verbatim reproduction of ICBMS.

No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions pertinent WHA
resolutions are customary int’l law that may be deemed part of the law of the land. For an int’l rule to be
considered as customary law, it must be established that such rule is being followed by states because they
consider it as obligatory to comply with such rules (opinion juris). The WHO resolutions, although signed by most
of the member states, were enforced or practiced by at least a majority of member states. Unlike the ICBMS
whereby legislature enacted most of the provisions into the law via the Milk Code, the WHA Resolutions
(specifically providing for exclusive breastfeeding from 0-6 months, breastfeeding up to 24 Months and absolutely
prohibiting ads for breastmilk substitutes) have not been adopted as domestic law nor are they followed in our
country as well. The Filipinos have the option of how to take care of their babies as they see fit. WHA Resolutions
may be classified as SOFT LAW – non-binding norms, principles and practices that influence state behavior. Soft
law is not part of int’l law.

Main issue:
Yes. Some parts of the RIRR were not in consonance with the Milk Code such as Sec. 4(f) ->advertising, promotions
of formula are prohibited,
Sec 11 -> prohibitions for advertising breastmilk substitutes intended for infants and young children uo to 24
months
And Sec 46 -> sanctions for advertising .
These provisions are declared null and void. The DOH and respondents are prohibited from implementing said
provisions.
Salonga v. Executive Secretary, G.R No. 176051, 11 February 2009

FACTS:
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the US Armed Forces. He was charged with the
crime of rape committed against a Filipina, petitioner herein, sometime on November 1, 2005. Pursuant to the
Visiting Forces Agreement (VFA) between the Republic of the Philippines and the US entered into, the US, at its
request, was granted custody of Smith. The RTC of Makati rendered a decision finding defendant Smith guilty due
to sufficient evidence.
Defendant Smith was taken out of the Makati jail by a contingent of Philippine law enforcement agents,
purportedly acting under orders of the DILG and brought to a facility for detention under the control of the US
government under the new agreements between the Philippines and the US, referred to as the Romulo-Kenney
Agreement.
Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because, first of all, the
VFA is void and unconstitutional.

ISSUE: WON the VFA is void and unconstitutional.

HELD:
NO.

Art. XVIII, Sec. 25 states:

Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except
under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other
contracting State.

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the presence of
the US Armed Forces through the VFA is a presence “allowed under” the RP-US Mutual Defense Treaty. Since the
RP-US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the US
Senate, there is no violation of the Constitutional provision resulting from such presence.

The VFA being a valid and binding agreement, the parties are required as a matter of international law to abide by
its terms and provisions.

Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes to
detention as against custody. “Art. V, Sec. 10. The confinement or detention by Philippine authorities of United
States personnel shall be carried out in facilities agreed on by appropriate Philippines and US authorities.”
Therefore, the Romulo-Kenney Agreements of December 19 and 22, 2006, which are agreements on the
detention of the accused in the United States Embassy, are not in accord with the VFA itself because such
detention is not “by Philippine authorities.” Respondents should therefore comply with the VFA and negotiate
with representatives of the United States towards an agreement on detention facilities under Philippine
authorities as mandated by Art. V, Sec. 10 of the VFA.
Saudi Arabia v. Arabian American Oil Company, 27 ILR 117 (1963)
Texaco v. Libya, 17 ILM 1 (1978)

Facts.

A decree to nationalize all Texaco’s (P) rights, interest and property in Libya was promulgated by Libya (D). This
action of the Libyan Government led Texaco (P) to request for arbitration, but it was refused by Libya (D). A sole
arbitrator was however appointed by the International Court of Justice on Texaco’s request, and Libya (D) was
found to have breached its obligations under the Deeds of Concessions and was also legally bound to perform in
accordance with their terms.

Issue.

Whenever reference is being made to general principles of law in the International arbitration context, can this be
held to be a sufficient criterion for the internationalization of a contract?

Held.

Yes. Whenever reference is been made to general principles of law in the international arbitration context, it is
always held to be a sufficient criterion for the internationalization of a contract. The lack of adequate law in the
state considered and the need to protect the private contracting party against unilateral and abrupt modifications
of law in the contracting state is a justification to the recourse to general principles. Though international law
involves subjects of a diversified nature, legal international capacity is not solely attributable to a state. A private
contracting party, unlike a state, has only a limited capacity and is limited to invoke only those rights that he
derives from his contract.

Discussion.

Applying Libyan law or international law in the arbitration proceedings was a conflict encountered by in this case.
Though the contract itself deferred to Libyan law, the court noted that Libyan law does not preclude the
application of international law, but that the two must be combined in order to verify that Libyan law complies
with international law. Even though the right of a state to nationalize is recognized by international law, this right
in itself is not a sufficient justification not to regard its contractual obligations
The Paquete Habana; The Lola, 175 U.S. 677 (1900)

RULE:

International law is part of American 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 juricial
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, who by years of labor, research and experience, have made themselves
peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals,
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:

The United States imposed a blockade of Cuba and declared war against Spain. While they were out to sea, fishing
along the coast of Cuba and near Yucatan, two Spanish vessels engaged in fishing off the coast of Cuba were
captured by blockading squadrons. Until stopped by the blockading squadron, the fishing vessels had no
knowledge of the existence of the war, or of any blockade. They had no arms or ammunition on board, and made
no attempt to run the blockade after they knew of its existence, nor any resistance at the time of the capture.
When the vessels returned with their catches of fresh fish, they were seized and a libel of condemnation of each
vessel as a prize of war was filed against the vessel in court. The district court entered a final decree of
condemnation and public sale at auction. Claimants appealed.

ISSUE:

Was it proper for the court to issue a decree of condemnation and auction the fishing vessels?

ANSWER:

No

CONCLUSION:

The Supreme Court ruled that, under the law of nations, in each case the capture was unlawful and without
probable cause. It was a rule of international law that coast fishing vessels, pursuing their vocation of catching and
bringing in fresh fish, were exempt, with their cargoes and crews, from capture as prize of war. Although not
reduced to treaty or statutory law, courts were obligated to take notice of and give effect to that rule. Thus, the
decrees condemning the vessels were reversed and, in each case, it was ordered that the proceeds of the sales of
each vessel and cargo be restored to the respective claimant, with compensatory damages and costs. The Court
also noted that it had appellate jurisdiction over the controversy without regard to the amount in dispute and
without certification from the district court, as required by prior statutory law.
Yamashita v. Styer, G.R. No. L-129, 19 December 1945

Facts:

Petitioner Tomoyuki Yamashita, the commanding general of the 14th army group of the bare Imperial Army in the
Philippines, after his surrender became a prisoner of war of the United States of America but was later removed
from such status and placed in confinement as an accused war criminal charged before an American Military
Commission constituted by respondent Lieutenant General Styer, Commanding General of the United States Army
Forces, Western Pacific.

Filing for habeas corpus and prohibition against respondent, he asks that he be reinstated to his former status as
prisoner of war, and that the Military Commission be prohibited from further trying him. He questions, among
others, the jurisdiction of said Military Commission.

Issue/s:

1. Should the petitions for habeas corpus and prohibition be granted in this case?

2. Was the Military Commission validly constituted by respondent, therefore having jurisdiction over the war
crimes?

Ruling:

1. No. A petition for habeas corpus is improper when release of petitioner is not sought. It seeks no discharge of
petitioner from confinement but merely his restoration to his former status as a prisoner of war, to be interned,
not confined. The relative difference as to the degree of confinement in such cases is a matter of military
measure, disciplinary in character, beyond the jurisdiction of civil courts. Prohibition cannot issue against one not
made party respondent. Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The
Military Commission is not made party respondent in this case, and although it may be acting, as alleged, without
jurisdiction, no order may be issued in these case proceedings requiring it to refrain from trying the petitioner.

The Court further ruled that it has no jurisdiction to entertain the petition even if the commission be joined as
respondent. As it has said, in Raquiza vs. Bradford (pp. 50, 61, ante), “. . . an attempt of our civil courts to exercise
jurisdiction over the United States Army before such period (state of war) expires, would be considered as a
violation of this country’s faith, which this Court should not be the last to keep and uphold.”

2. Yes. Under the laws of war, a military commander has an implied power to appoint and convene a military
commission. This is upon the theory that since the power to create a military commission is an aspect of waging
war, military commanders have that power unless expressly withdrawn from them.

By the Articles of War, and especially Article 15, the Congress of the United States has explicitly provided, so far as
it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the
laws of war in appropriate cases.