PUBLIC INTERNATIONAL LAW

CASE DIGESTS

Prepared by:
Group V

ASUNCION, LOVELI JOAN M.

Mijares vs Ranada • Del monte vs CA • Lim vs Capitol

IQUIÑA, MARIA KARLA I.

Frabelle vs Phil Am Life • Tech vs Hughes • Filipinas vs Christern

MONTICODE, FRANDE C. – no digest

Haw Pia vs China Bank • Republic vs Lara • Prosecutor vs Al Mahdi

PALACTAO, MARILOU G.
Nicaragua vs US • Lockerie Case • ELSI case

SIAZON, PATRICK YVES C.

Nauru vs Australia • Portugal vs Australia • Bosnia vs Serbia

LOPEZ, PRINCE
Admission Case • Free zones Case • UN HQ Advisory Opinion

JOHNSON, ROB
Yugoslavia vs US • Legality of the use of nuclear weapon • MW Reisman

CERNECHEZ, KRIZZA S.
US vs Iran • Congo vs Uganda • Commanding General vs Dizon
 PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B. NARCISO, SR. MARIANI
DIMARANAN, SFIC, and JOEL C. LAMANGAN in their behalf and on behalf of the Class
Plaintiffs in Class Action No. MDL 840, United States District Court of Hawaii, Petitioner, v.
HON. SANTIAGO JAVIER RANADA, in his capacity as Presiding Judge of Branch 137, Regional
Trial Court, Makati City, and the ESTATE OF FERDINAND E. MARCOS, through its court
appointed legal representatives in Class Action MDL 840, United States District Court of
Hawaii, namely: Imelda R. Marcos and Ferdinand Marcos, Jr., Respondents.
G.R. NO. 139325 : April 12, 2005

FACTS:

On 1991, 10 Filipino brought a class action suit on behalf of 10,000 individuals who allegedly
suffered human rights abuses under the military groups during the Marcos regime. The case
was filed at US District Court of Hawaii, against the Estate of former Philippine President
Ferdinand E. Marcos invoking the Alien Tort Act as it involved a suit by aliens for tortious
violations of international law. Subsequently, US District Court awarded the plaintiffs the
US$2.25 Billion indenity which was affirmed by the US Court of Appeals.

On 1997, the present petitioners filed at Makati RTC for the enforcement of the Final
Judgment rendered by the US Court alleging that they are members of the plaintiff class and
further argued that since the Marcos Estate failed to file a petition for certiorari with the US
Supreme Court after the US Court of Appeals had affirmed the Final Judgment, the decision
of the US District Court had become final and executory, hence enforceable in the Philippines.

On 1998, the Marcos Estate filed a motion to dismiss alleging that petitioners had only paid
less in a docket and filing fees, notwithstanding the fact that they sought to enforce a
monetary amount of damages amounting to US$2.25 Billion. In response, the petitioners
claimed that an action for the enforcement of a foreign judgment is not capable of pecuniary
estimation. Respondent Judge Santiago Javier Ranada of the Makati RTC dismissed the
complaint on the ground that the complaint was capable of pecuniary estimation as it
involved a judgment rendered by a foreign court ordering the payment of definite sums of
money.

Petitioners invoked that their action is incapable of pecuniary estimation as the subject
matter of the suit is the enforcement of a foreign judgment, and not an action for the
collection of a sum of money or recovery of damages. Petitioners further invoke Section 11,
Article III of the Bill of Rights of the Constitution, which provides that "Free access to the
courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any
person by reason of poverty," a mandate which is essentially defeated by the required
exorbitant filing fee.

Meanwhile, CHR intervened and urged that the judgment of the US District Court be enforced.
It further argued that the Makati RTC erred in interpreting the action for the execution of a
foreign judgment as a new case, in violation of the principle that once a case has been decided
between the same parties in one country on the same issue with finality, it can no longer be
relitigated again in another country. CHR likewise invokes the principle of comity, and of
vested rights.
ISSUE:

Whether or not foreign judgment 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. However, generally accepted principles of
international law, by virtue of the incorporation clause of the Constitution, 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 necessitates (opinion
as to law or necessity). Implicit in the latter element is a belief that the practice in question is
rendered obligatory by the existence of a rule of law requiring it.

Moreover, 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

As required by the Philippines for recognition and enforcement of a foreign judgment, Sec 48
of Rules of Court states that:

SEC. 48. Effect of foreign judgments. The effect of a judgment of a tribunal of a foreign
country, having jurisdiction to pronounce the judgment is as follows:

(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment is presumptive evidence of a right as
between the parties and their successors in interest by a subsequent title;

In this case, the foreign court ordered the defendant to pay plaintiffs definite sums of money
for compensatory damages. While the subject matter of the action is undoubtedly the
enforcement of a foreign judgment, the effect of a providential award would be the
adjudication of a sum of money. However, under BP 129 defining the jurisdiction of first level
courts, such courts are not vested with jurisdiction over actions for the enforcement of
foreign judgments.

An examination of Section 19(6), B.P. 129 reveals that the instant complaint for enforcement
of a foreign judgment, even if capable of pecuniary estimation, would fall under the
jurisdiction of the Regional Trial Courts, thus negating the fears of the petitioners. For this
case and other similarly situated instances, we find that it is covered by Section 7(b)(3),
involving as it does, "other actions not involving property." The petitioners thus paid the
correct amount of filing fees, and the respondent judge erred when he applied instead a
clearly inapplicable rule and dismissed the complaint.
DEL MONTE CORPORATION-USA, PAUL E. DERBY, JR., DANIEL COLLINS and LUIS HIDALGO,
petitioners, vs. COURT OF APPEALS, JUDGE BIENVENIDO L. REYES in his capacity as
Presiding Judge, RTC-Br. 74, Malabon, Metro Manila, MONTEBUENO MARKETING, INC.,
LIONG LIONG C. SY and SABROSA FOODS, INC., respondents.

351 SCRA 373, G.R. No. 136154 February 7, 2001

FACTS:

On 1994, Del Monte Corporation-USA appointed private respondent Montebueno Marketing,

Inc. as the sole and exclusive distributor of its Del Monte products in the Philippines for a
period of five (5) years, renewable for two (2) consecutive five (5) year periods with the
consent of the parties. The Distributorship Agreement provided an arbitration clause which
states that it shall be governed by the laws of the State of California and/or, if applicable, the
United States of America and shall be resolved by under the Rules of the American Arbitration
Association.

Immediately after its appointment, private respondent MMI appointed Sabrosa Foods, Inc.
(SFI), with the approval of petitioner DMC-USA, as MMI’s marketing arm. On 1996 private
respondents filed a Complaint against DMC-USA alleging that DMC-USA products which are
either aged, damaged, fake or counterfeit was continuously brought into the country by
parallel importers despite the appointment of MMI as the sole and exclusive distributor.

DMC-USA filed a Motion to Suspend Proceedings invoking the arbitration clause in their
Agreement with private respondents. In a Resolution, the trial court deferred petitioners’
Motion to Suspend Proceedings as the grounds alleged therein did not constitute the
suspension of the proceedings considering that the action was for damages with prayer for
the issuance of Writ of Preliminary Attachment and not on the Distributorship Agreement.

On appeal, the Court of Appeals affirmed the decision of the trial court. It held that the alleged
damaging acts recited in the Complaint, constituting petitioners’ causes of action, required
the interpretation of Art. 21 of the Civil Code 16 and that in determining whether petitioners
had violated it "would require a full blown trial" making arbitration "out of the question."

Petitioners contend that the subject matter of private respondents’ causes of action arises
out of the Agreement between petitioners and private respondents.

Private respondents claim that their causes of action are rooted in Arts. 20, 21 and 23 of the
Civil Code, the determination of which demands a full blown trial, as held by the Court of
Appeals. Private respondents further contend that the arbitration clause centers more on
venue rather than on arbitration.

ISSUE:

Whether the dispute between the parties warrants an order compelling them to submit to
arbitration.
RULING:

The arbitration is valid and constitutional. Even before the enactment of RA 876, Supreme
Court has allowed the settlement of disputes through arbitration. Unless the agreement is
such as absolutely to close the doors of the courts against the parties, which agreement would
be void, the courts will look with favor upon. Moreover, as RA 876 expressly authorizes
arbitration of domestic disputes, foreign arbitration as a system of settling commercial
disputes was likewise recognized when the Philippines adhered to the United Nations
"Convention on the Recognition and the Enforcement of Foreign Arbitral Awards of 1958"
under the Resolution No. 71 of the Philippine Senate, giving reciprocal recognition and
allowing enforcement of international arbitration agreements between parties of different
nationalities within a contracting state. Thus, the arbitration clause in the Distributorship
Agreement between petitioner DMC-USA and private respondent MMI is valid and the
dispute between the parties is arbitrable.

However, the Agreement between DMC-USA and MMI is a contract. The provision to submit
to arbitration any dispute arising therefrom and the relationship of the parties is part of that
contract and is itself a contract. As a rule, contracts are respected as the law between the
contracting parties and produce effect as between them, their assigns and heirs. Hence, only
DMC-USA and MMI are bound by the Agreement and its arbitration clause as they are the
only signatories thereto. Petitioners Daniel Collins and Luis Hidalgo, and private respondent
SFI, not parties to the Agreement and cannot be considered assigns or heirs of the parties,
are not bound by the Agreement and the arbitration clause therein. Consequently, referral to
arbitration in the State of California pursuant to the arbitration clause and the suspension of
the proceedings in civil case pending the return of the arbitral award could be called for but
only as to DMC-USA and MMI, and not as to the other parties.

The object of arbitration is to allow the expeditious determination of a dispute. Clearly, the
issue could not be speedily and efficiently resolved in its entirety if we allow simultaneous
arbitration proceedings and trial, or suspension of trial pending arbitration.
 LM POWER ENGINEERING CORPORATION, Petitioner,
vs. CAPITOL INDUSTRIAL CONSTRUCTION GROUPS, INC., Respondent.
G. R. No. 141833 - March 26, 2003

FACTS:

On 1983, LM Power Engineering Corporation and Capitol Industrial Construction Groups Inc.
entered into a "Subcontract Agreement" involving electrical work at the Third Port of
Zamboanga. On 1985, respondent took over some of the work contracted because the
petitioner failed to finish the construction due to its inability to procure materials. Upon
completion, petitioner billed respondent but the latter refused to pay contesting the accuracy
of the amount payable and invoking the termination clause of the Agreement. Petitioner filed
with the RTC Makati for the collection of the amount due under the subcontract however, the
respondent filed a Motion to Dismiss alleging that the complaint was premature, because
there was no prior recourse to arbitration.

RTC denied the Motion on the ground that the dispute did not involve the interpretation or
the implementation of the Agreement and was, therefore, not covered by the arbitral clause.
RTC further ruled that the take-over of some work items by respondent was not equivalent
to a termination, but a mere modification, of the Subcontract hence respondent was ordered
to pay petitioner. CA reversed the RTC and ordered the referral of the case to arbitration.

ISSUE:

Whether or not dispute is arbitrable

RULING:

Yes. The case involves technical discrepancies that are better left to an arbitral body that has
expertise in those areas. However, the inclusion of an arbitration clause in a contract does
not ipso facto divest the courts of jurisdiction to pass upon the findings of arbitral bodies,
because the awards are still judicially reviewable under certain conditions.

Within the scope of the arbitration clause are discrepancies as to the amount of advances and
billable accomplishments, the application of the provision on termination, and the
consequent set-off of expenses. The resolution of the foregoing issues lies in the
interpretation of the provisions of the Agreement.

Arbitration, being an inexpensive, speedy and amicable method of settling disputes is

encouraged by the Supreme Court. Aside from unclogging judicial dockets, arbitration also
hastens the resolution of disputes, especially of the commercial kind. Thus the courts should
liberally construe arbitration clauses. Provided, such clause is susceptible of an interpretation
that covers the asserted dispute, an order to arbitrate should be granted.
 G.R. No. 158560; August 17, 2007
FRABELLE FISHING CORPORATION vs. THE PHILIPPINE AMERICAN LIFE INSURANCE
COMPANY, PHILAM PROPERTIES CORPORATION and PERF REALTY CORPORATION

FACTS:
Respondents Philam Properties Corporation, Philippine American Life Insurance Company,
and PERF Realty Corporation, entered into a Memorandum of Agreement (MOA) wherein
each agreed to contribute cash, property, and services for the construction and development
of Philamlife Tower, a 45-storey office condominium along Paseo de Roxas, Makati City. On
December 6, 1996, respondents executed a Deed of Assignment (1996 DOA) wherein they
assigned to Frabelle Properties Corporation (Frabelle) their rights and obligations under the
1996 MOA with respect to the construction, development, and subsequent ownership of Unit
No. 38-B located at the 38th floor of Philamlife Tower. The parties also stipulated that the
assignee shall be deemed as a co-developer of the construction project with respect to Unit
No. 38-B. Frabelle, in turn, assigned to Frabelle Fishing Corporation (Frabelle Fishing),
petitioner herein, its rights, obligations and interests over Unit No. 38-B. Petitioner Frabelle
Fishing and respondents executed a Memorandum of Agreement (1998 MOA) to fund the
construction of designated office floors in Philamlife Tower.

Petitioner found material concealment on the part of respondents regarding certain details
in the 1996 DOA and 1998 MOA and their gross violation of their contractual obligations as
condominium developers. These violations are: (a) the non-construction of a partition wall
between Unit No. 38-B and the rest of the floor area; and (b) the reduction of the net usable
floor area from four hundred sixty eight (468) square meters to only three hundred fifteen
(315) square meters. Dissatisfied with its existing arrangement with respondents, petitioner,
on October 22, 2001, referred the matter to the Philippine Dispute Resolution Center, Inc.
(PDRCI) for arbitration. However, in a letter dated November 7, 2001, respondents
manifested their refusal to submit to PDRCI’s jurisdiction. On February 11, 2002, petitioner
filed with the Housing and Land Use Regulatory Board (HLURB), Expanded National Capital
Region Field Office a complaint for reformation of instrument, specific performance and
damages against respondents, docketed as HLURB Case No. REM-021102-11791. Petitioner
alleged, among others, that the contracts do not reflect the true intention of the parties; and
that it is a mere buyer and not co-developer and/or co-owner of the condominium unit.

ISSUE:
Whether the parties should initially resort to arbitration.

RULING:
Paragraph 4.2 of the 1998 MOA mandates that any dispute between or among the
parties "shall finally be settled by arbitration conducted in accordance with the Rules of
Conciliation and Arbitration of the International Chamber of Commerce." Petitioner referred
the dispute to the PDRCI but respondents refused to submit to its jurisdiction. It bears
stressing that such arbitration agreement is the law between the parties. They are, therefore,
expected to abide by it in good faith. This Court has previously held that arbitration is one of
the alternative methods of dispute resolution that is now rightfully vaunted as "the wave of
the future" in international relations, and is recognized worldwide. To brush aside a
contractual agreement calling for arbitration in case of disagreement between the parties
would therefore be a step backward.
WHEREFORE, we DENY the petition. The challenged Decision and Resolution of the Court of
Appeals in CA-G.R. SP No. 71389 are AFFIRMED.

Costs against petitioner.

 Techt v. Hughes. US, CA of NY, 1920; 229 NY 222

FACTS:
Techt’s father was an American citizen and died intestate in New York. His daughter, had
married an Austro-Hungurian citizen and under federal law at that time she had lost her
United States citizenship. The New York law allowed Techt to take as inheritance if she were
to be an alien friend. When the court established this fact and could claim half the inheritance,
her sibling appealed stating that Techt is an alien enemy. The Court of appeals found Techt to
be an aliend enemy because of the US and Austria-Hungary war. Techt however argued that
on the terms of the Treaty of 1848 between the U.S. and Austria nationals of either state
could take real property by descent.

ISSUE:
Whether the provision involved in a controversy is inconsistent with national policy or safety
in a situation whereby a treaty between belligerents at war has not been denounced?

RULING:
Yes. The court must decide whether the provision involved in a controversy is inconsistent
with national policy or safety in a situation whereby a treaty between belligerents at war has
not been denounced. If a treaty is in force, it implies that it is the supreme law of the land.
There is nothing incompatible with the policy of the government, safety of the nation, or the
maintenance of the war in the enforcement of this treaty, so as to sustain Techt’s title.
Affirmed.
 G.R. No. L-2294; May 25, 1951
FILIPINAS COMPAÑIA DE SEGUROS, vs.CHRISTERN, HUENEFELD and CO., INC.,

FACTS:
Respondent corporation Christern Huenefeld and Co., Inc., after payment of corresponding
premium, obtained from the petitioner, Filipinas Cia de Seguros fire policy covering
merchandise contained in a building located at Binondo, Manila. On February 27, 1942 or
during the Japanese military occupation, the building and insured merchandise were burned.
Respondent submitted to the petitioner its claim but however petitioner refused to pay the
claim stating that policy in favor of the respondent ceased to to be of force the time the
United States declared war against Germany. The claim of the petitioner is that the policy
issued in 1941 had ceased to be effective because of the outbreak of war and that the
payment made during Japanese military occupation was under pressure.

ISSUE:
Whether or not the respondent corporation is a corporation of public enemy.

RULING:
There is no question that majority of the stockholders of the respondent corporation were
German subjects. This being so, we have to rule that said respondent became an enemy
corporation upon the outbreak of the war between the United States and Germany.

The Philippine Insurance Law (Act No. 2427, as amended,) in section 8, provides that "anyone
except a public enemy may be insured." It stands to reason that an insurance policy ceases to
be allowable as soon as an insured becomes a public enemy.

The respondent having become an enemy corporation on December 10, 1941, the insurance
policy issued in its favor on October 1, 1941, by the petitioner (a Philippine corporation) had
ceased to be valid and enforcible, and since the insured goods were burned after December
10, 1941, and during the war, the respondent was not entitled to any indemnity under said
policy from the petitioner. However, elementary rules of justice (in the absence of specific
provision in the Insurance Law) require that the premium paid by the respondent for the
period covered by its policy from December 11, 1941, should be returned by the petitioner.

Petitioner is entitled to recover what paid to the respondent under the circumstances on
this case. However, the petitioner will be entitled to recover only the equivalent, in actual
Philippines currency of P92,650 paid on April 19, 1943, in accordance with the rate fixed in
the Ballantyne scale.

Wherefore, the appealed decision is hereby reversed and the respondent corporation is
ordered to pay to the petitioner the sum of P77,208.33, Philippine currency, less the
amount of the premium, in Philippine currency, that should be returned by the petitioner
for the unexpired term of the policy in question, beginning December 11, 1941. Without
costs. So ordered.
 Nicaragua vs United States

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).

Issues. (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.
 The Lockerbie Cases before the International Court of Justice

Principle: No country is bound to extradite. Special Extradition can be made on special

circumstances. Extradition is a matter of bilateral treaty.

On 10 September 2003, after more than ten years of proceedings before the International
Court of Justice (ICJ), the disputes between Libya and both the United Kingdom and the United
States concerning the extradition of two Libyan citizens were removed from the Court’s List
following the Parties’ withdrawal from the proceedings. On 3 March 1992, Libya filed in the
Registry of the ICJ two separate Applications instituting proceedings against the US and the
UK Governments, in respect of a dispute over the interpretation of the Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation signed in Montreal on 23
September 1971. This filing followed the explosion of a bomb in the Pan Am Flight 103 over
the town of

Lockerbie, Scotland, on 21 December 1988, which killed all 259 passengers and crew, as well
as eleven residents of the town of Lockerbie. The Lord Advocate of Scotland and a Grand Jury
of the US respectively accused two Libyan citizens, Abdelbaset Ali Mohmed Al Megrahi and
Ali Amin Khalifa Fhimah, of this bombing.

Consequently, the UK and US Governments requested Libya to extradite the accused so that
they could be prosecuted in Scotland or in the US. The United Nations Security Council
adopted three resolutions (Resolutions 731, 748 in 1992 and Resolution 883 in 1993),
ordering Libya to “give a full and efficient answer” to the demands made by UK and the US
“in order to contribute to the clearance of international terrorism”.

Before the ICJ, Libya claimed that it had not signed any extradition treaty with the UK and the
US, and that, subsequently and in conformity with the 1971 Montreal Convention (Articles 5
and 7), which requires a State to establish its own jurisdiction over alleged offenders present
in its territory an the event of their non-extradition, only Libyan authorities had jurisdiction
to try their own citizens.

February 1998: The International Court of Justice has jurisdiction

When bringing its claim in front of the ICJ, Libya pointed out that the alleged acts constituted
an offence with the meaning of Article 1 of the Montreal Convention. Thus, it asserted that
the ICJ had jurisdiction to hear disputes between Libya and the respondent States concerning
the interpretation or application of the provisions of the Convention.

1 The cases are officially called ‘Questions of Interpretation & Application of the 1971
Montreal Convention (Aerial Incident at Lockerbie) (Libya v. UK)’ and ‘Questions of
Interpretation & Application of the 1971 Montreal Convention (Aerial Incident at Lockerbie)
(Libya v. USA)’.

2 Following Libya’s Applications, the US and the UK filed certain preliminary objections to the
jurisdiction of the Court and to the admissibility of the claims. On 27 February 1998, the ICJ,
the main judicial body of the United Nations, dismissed the Respondents’ objections. It
declared that it had jurisdiction on the basis of Article 14, paragraph 1 of the Montreal
Convention, to hear the disputes between Libya and the respondent States concerning the
interpretation of the Convention in relation to the incident that occurred in Lockerbie. It
further declared the claims admissible. Continuation of the proceedings There are two stages
in the proceedings before the ICJ, one in writing, the second in oral. During the writing stage,
exhibits are exchanged. At the end of this phase, public hearings take place where the Parties
present the remaining points that oppose them. The Court renders a judgment on the merits
once the oral proceedings are completed. The US and the UK filed a Brief in response in the
beginning of 2009. In June 2009, the Court authorized Libya to submit a Reply, and the UK and
the US to file Rejoinders.

Cases removed from the Court’s List at the joint request of the Parties While the pleadings
were filed by the Parties within the time-limits laid down by the Court, the two cases brought
before ICJ were removed from the Court’s List on 10 September 2003, at the joint request of
the Parties.

By two letters of 9 September 2003, the Governments of Libya and the United Kingdom on
the one hand, and of Libya and the United States of America on the other, notified the Court
that they had "agreed to discontinue with prejudice the proceedings".

Following those notifications, on 10 September 2003 the President of the Court, Judge Shi,
made an Order in each case placing on record the discontinuance of the proceedings with
prejudice, by agreement of the Parties, and directing the removal of the case from the Court’s
List.

In the meantime, Libya had agreed that the two accused, Abdelbaset Ali Mohmed Al Megrahi
and Ali Amin Khalifa Fhimah, be tried by five Scottish Judges sitting in a neutral Court, in the
Netherlands. Abdelbaset Ali Mohmed Al Megrahi was found guilty on 31 January 2001. He
was convicted of 270 counts of murder for his part in the bombing of Pan Am Flight 103 and
sentenced to life imprisonment. His co-accused, Al Amin Khalifa Fhimah was found not guilty
and released. Al Megrahi is serving his sentence in Greenock Prison, near Glasgow, where he
continues to profess his innocence. The appeal judgment should be delivered by a fiveJudge
panel in 2008 although no date has been set yet. Whether a definitive judgment will be
delivered in the case before the twentieth anniversary of the Lockerbie bombing on 21
December 2008 remains to be seen.

On December 21, 1988, a bomb exploded in the cargo hold of Pan Am Flight 103, killing all
259 passengers and crew, as well as eleven residents of the town of Lockerbie where the
wreckage of the Boeing 747 crashed 31,000 feet below. After years of negotiations and
diplomatic maneuvering, in April 1999, Libya surrendered the two Libyan officials accused of
the bombing (Abdelbasset Ali Ahmed Al-Megrahi and Ali Amin Khalifa Fhimah) for trial in the
Netherlands before a panel of Scottish judges at a former U.S. military base known as Camp
Zeist. The trial is set to begin on May 3, 2000. It scheduled to last a year, with as many as
1,000 witnesses testifying.

Events Leading to the Trial

Though neither country had an extradition treaty with Libya, the United States and United
Kingdom both demanded that Libya immediately surrender Al-Meghrahi and Fhimah to them
for trial. Citing the "lynch mob atmosphere" prevailing in the United States and United
Kingdom concerning this case, as well as its right to undertake its own prosecution of the
accused under the Montreal Aircraft Sabotage Convention of 1971, Libya refused to comply
with the United States and United Kingdom demands.

In 1992, the UN Security Council responded to Libya's refusal by adopting Resolution 748,
which imposes sanctions on Libya until it hands over the two accused for trial, makes
compensation to the victims' families, and demonstrates with concrete actions its
renunciation of terrorism. As expanded in 1993 with the adoption of Security Council
Resolution 883, the sanctions required the members of the United Nations to freeze Libyan
government funds in their banks, impose an embargo on military and oil production
equipment on Libya, and prohibit flights arriving from or destined for Libya.

Libya responded by offering to extradite Al-Meghrahi and Fhimah to Malta, where their acts
allegedly took place. However, the United States and United Kingdom rejected the offer on
the ground that Malta was so close geographically to Libya that its judiciary would be
susceptible to improper influence. As an alternative, in 1994, Libya proposed trial before a
Scottish court, provided it sat in a neutral country such as the Netherlands. At first, the United
States and United Kingdom rejected the offer, believing it to be merely a propaganda ploy.
During the next few years, however, it became increasingly clear that, despite sanctions, the
two Libyans would not be surrendered for trial. Meanwhile, a growing number of countries
were expressing their opposition to the sanctions, and enforcement of the sanctions began
to erode. Finally, in August 1998, the British Government of Tony Blair persuaded the United
States to agree to Libya's plan.

The final deal with Libya contained the following elements: (1) The Security Council imposed
sanctions would be suspended when Libya surrendered Al-Megrahi and Fhimah to the
Netherlands for trial before a Scottish panel of judges at Camp Zeist, part of the
decommissioned U.S. Soesterberg air base outside of Utricht; (2) Al-Megrahi and Fhimah
would be permitted to fly on a non-stop flight from Libya to the Netherlands so that they
would not be susceptible to arrest in a third country; (3) While in the Netherlands, Al-Megrahi
and Fhimah would stand trial only for the Pan Am 103 case, and if acquitted, would be
returned directly to Libya; (4) If Al-Megrahi and Fhima are convicted, U.N. monitors would be
permanently stationed inside "Barlinnie Prison" in Scotland where the two would serve
sentence; and (5) The United Kingdom would permit Libya to establish a consulate in
Edinburgh to watch over Al-Megrahi and Fhima's interests, despite the absence of diplomatic
relations between the United Kingdom and Libya. In addition to these five conditions, press
reports indicated that the United Kingdom had agreed that no senior Libyan intelligence
officers would be required to testify at the trial and that the prosecution would not try to
trace the orders for the bombing to Khaddafi himself. Scottish prosecutors have insisted that
no such deal concerning senior Libyan intelligence officials has been made.

On April 6, 1999, Al-Megrahi and Fhimah arrived at in the Netherlands. Later that day,
pursuant to Security Council Resolution 1192 (1998), the U.N. sanctions were suspended
when Secretary-General Kofi Annan communicated formally to the Security Council the
successful handover of the two accused.

The Scottish Legal Procedures

The Scottish rules of evidence and procedures that will govern the Pan Am 103 trial differ
from the U.S. rules in several notable respects that may affect the outcome of the trial.

Under the Scottish rules, for example, there is no requirement that probable cause be
confirmed at a preliminary hearing to test the sufficiency of the Prosecutor's case prior to
trial. In contrast, had the case been tried in the United States, a magistrate would have to
independently determine through an open and adversary hearing that there are substantial
grounds upon which a prosecution may be based. This U.S. screening process is said to
prevent hasty, improvident or improper prosecutions.

It is a peculiarity of the Scottish system that no one may be convicted without corroboration.
This requires that, for every element of the crime, there must be credible evidence from more
than one source. A single piece of evidence of guilt, no matter how compelling, cannot
support a conviction. This corroboration requirement will make it more difficult to obtain a
conviction in the Lockerbie court than if the case had been tried in the United States.

At the request of the defense, the Lockerbie court will be composed of a panel of three judges,
rather than a fifteen-member Scottish jury. Yet, as with a Scottish jury, the three-judge panel
can rule by a simple majority. This is to be contrasted with the U.S. practice of requiring a
determination of guilt by a "substantial majority" (a minimum of 9 out of 12 jurors) in a federal
felony case. In countervailance to the strict corroboration requirement, this will make it
somewhat easier to obtain a conviction in the Lockerbie court than if the case were tried in
the United States.

Perhaps the greatest difference between the Lockerbie court and a U.S. court concerns the
range of verdicts that are possible. Where the United States only has "guilty" and "not guilty,"
the Scottish court can issue three possible verdicts: "proven," "not proven," and "not guilty."
"Not proven" in Scotland usually means that the jury thinks the defendant is guilty, but that
the proof of guilt was not beyond a reasonable doubt. The existence of this third option may
make it easier for the judges to acquit Al-Megrahi and Fhimah, because they can do so while
simultaneously explaining in their written judgment that they nonetheless thought the
defendants were guilty.
If the defendants are convicted, they cannot be subject to the death penalty, which has been
outlawed in the United Kingdom. The sentence for murder is a mandatory life imprisonment,
with no possibility for a reduction of sentence in light of mitigating factors. There is no
prescribed sentence for a conspiracy conviction, which would be up to the discretion of the
judges.

Finally, in contrast to the U.S. double jeopardy principle, the Scottish prosecutors can appeal
an acquittal on a legal point. The appeal is to the High Court (a panel of five Scottish judges in
Edinburgh), which can order a new trial if it concludes that the verdict rested on an error of
law.

A Preview of the Prosecution's Case

From the indictment and the discovery proceedings in the civil case against Libya, one can
glean what the prosecution's key evidence will likely be in this case.

One of the most important pieces of evidence was the discovery in the Pan Am 103 wreckage
of an unaccompanied suitcase, containing clothing that was traced to a shop called "Mary's
House" in Malta. The owner of the shop, Tony Gauci, has identified Al-Megrahi as the person
who purchased the items in question. The Prosecutor will argue that Al-Meghrahi filled the
suitcase with this clothing, in addition to the Toshiba radio-bomb, so that it would not appear
suspicious to airport security personnel.

After months of searching through the debris of some 10,000 items spread over 850 square
miles, the Lockerbie investigators found the most important piece of evidence of all -- a small
fragment of a circuit board from the electronic timer that had triggered the bomb. The FBI
Lab, headed by Thomas Thurman, matched the fragment, which was smaller than a thumb
nail, to a timer seized earlier from Libyan agents in west Africa. That timer was traced to an
electronics company in Zurich Switzerland called Mebo, which admitted that it had sold 20
such timers to the Libyans in 1985.

Finally, the Prosecution will present its star witness -- a Libyan defector, presently in the U.S.
witness protection program, who used to work for Libyan Arab airlines in Malta. He is
expected to testify that early on the day of the Pan Am 103 bombing, he saw Fhimah put the
suitcase containing the bomb aboard the Air Malta Flight to Frankfurt.

A Preview of the Defense Case

In response, the Defense will likely suggest that Pan Am 103 was blown up not by Libya, but
by Iran or the Popular Front for the Liberation of Palestine - General Command (PFLP-GC),
terrorist group that operated out of Syria, as the criminal investigators originally suspected.
The defense point out that two months before the Pan Am 103 bombing, German police
raided an apartment in Frankfurt, Germany, belonging to members of the PFLP-GC. The raid
disclosed an arsenal of terrorist weapons, including a Toshiba radio cassette player converted
into a bomb, like the one that was later discovered in the wreckage of Pan Am 103.
Under Scottish law, this is the special defense of "incrimination." It is permissible to blame
"persons unknown" in Scottish law. A special defense is special only in the sense that it must
be announced prior to trial. It does not shift the burden of proof to the defense.

But if Libya was not behind the bombing, how will the Defense deal with the circuit board,
which had been sold by Mebo to the Libyan Government? The Defense is likely to call Edwin
Bollier, the director of Mebo, who will testify that the fragment found in the Pan Am 103
wreckage does not in fact match the timers that his company sold the Libyans in 1985. Bollier
told CBS "60 Minutes" in April 1999 that investigators had shown him a photograph of the
Lockerbie fragment. In contrast to the circuit boards that he sold to Libya, which were
smoothly printed by machine, that photograph shows clearly that the Lockerbie fragment was
roughly soldered as if made by hand.

In addition, Bollier has publicly stated that he had previously sold roughly soldered handmade
timers similar to the one used in the Lockerbie bomb to the Stasi, the East German secret
police. And the Stasi was known to have supplied weapons and explosives to Palestinian
terrorist groups including the PFLP-GC, the original Lockerbie suspects. Bollier has also said
that a few months before the Lockerbie bombing in 1988 he reported a break in at his
company in which a photographic blueprint for a circuit board like the one used to blow up
Pan Am 103 was stolen. Whoever had that blueprint was in a position to make the Lockerbie
circuit board and timer. Thus, the Defense has ammunition to argue that the necessary
connection between the Lockerbie circuit board and Libya is broken. And to bolster its case,
the defense may point out that Thomas Thurman, the FBI forensic expert responsible for the
Pan Am 103 investigation, was forced out of the FBI after a Justice Department inquiry found
that he had allowed examiners in his explosives unit to overstate conclusions in favor of the
prosecution in several cases.

On the other hand, there seems to be little doubt that the clothes in the suitcase containing
the bomb were bought at Mary's House in Malta. But Tony Gauci, the eyewitness who links
Al-Megrahi to the mysterious suitcase, identified Al-Megrahi from a photo a year after the
bombing. Prior to the photo ID, Gauci said the person who purchased the clothing was 50
years old, six feet tall and heavily built. Al-Megrahi was then only 36, just five foot eight, and
slight of build. And after the ID, Gauci later identified the person who purchased the clothing
as Mohammed Abu Talb, a PFLP-GC terrorist who was in Malta at the time in question and is
now serving a life-sentence in jail in Sweden.

Finally, the Defense will try to impeach the Libyan defector by pointing out that he stands to
gain $4 million, which is the reward that has been put up by the US and Air Pilots Association
for evidence which leads to a conviction of Megrahi and Fhima.

Decision: In 2001, Libyan intelligence officer Abdelbaset al-Megrahi was jailed for life after
being found guilty of 270 counts of murder but In August 2009, he was released by the
Scottish government for his cancer.
Issue: Whether US compel Libya to surrender its two accused national in absence of any
extradition treaty between them?

Decision: Without Going into the merit of the case, the court advised Libya to follow the
negotiation with UN. Libya had no extradition treaty with US but due to pressure of UN, Libya
come to an agreement to send the accused for trial under certain condition.

Conclusion

Faced with no trial, or this trial, perhaps this was the best possible solution. The families of
the victims of the bombing will finally see some sort of closure, but given the peculiarities of
the Scottish procedures and the problems with the prosecution's case that are mentioned
above, it may be very difficult for the prosecution to obtain a conviction in the Lockerbie case.
 USA Versus Italy: The Elettronica Sicula Case

FACTS OF THE CASE

A. The investment

In 1952, Raytheon Company — a United States manufacturer of electronics equipment —

entered into a licensing and technical assistance agreement with an Italian company. This
relationship eventually led Raytheon to become a partial shareholder in a relatively new
company, Elettronica Sicula S.p.A. (ELSI), located in Palermo, Sicily. From 1956 through 1967,
Raytheon invested some 7.42 billion lire in ELSI, ultimately acquiring over ninety-nine percent
of its shares. In addition, Raytheon guaranteed more than five billion lire worth of loans to
ELSI from various Italian banks. In April 1967, Machlett Laboratories, a wholly-owned
subsidiary of Raytheon, acquired ELSI’s remaining shares.

ELSI manufactured sophisticated electronic components and equipment, based largely on

patents, licenses, and technical assistance provided by Raytheon. While ELSI sold its products
throughout the world (sales in 1965 and 1966 exceeded eight billion lire), the company never
became economically self-sufficient. During fiscal years 1964 through 1966, ELSI earned an
operating profit, but this profit was insufficient to offset its debt expenses and accumulated
losses. ELSI never paid any dividends to its shareholders.

B. The Decision to Liquidate

By 1968, however, the causes of ELSI’s condition were less germane than the rights and
obligations of the United States and Italy under the FCN Treaty. Raytheon had decided not to
infuse additional capital into ELSI, and since no further capital was forthcoming from an Italian
partner, Raytheon developed a plan to close and liquidate ELSI to minimize Raytheon’s losses.
Under this plan, ELSI would maintain limited operations to complete work-in-progress and to
fill existing purchase orders. This action would preserve ELSI as a going concern and make it
more attractive to potential purchasers, who would have the chance to acquire ELSI’s
established name and reputation, its customer and supplier relationships, and the necessary
patent and trademark licenses and technical assistance from Raytheon. Raytheon planned at
that time to offer ELSI for sale both as a total package and separately by product lines in order
to maximize the liquidation price.

On March 16, 1968, ELSI’s Board of Directors voted to cease full-scale production by March
29 and to liquidate ELSI. The company’s shareholders voted to affirm this decision on March
28. On March 29, ELSI sent dismissal letters to those employees deemed unnecessary to fulfill
the liquidation plan.

C. The Requisition by the Italian Government

On April 1, 1968, the Mayor of Palermo issued an order requisitioning ELSI’s plant and related
tangible assets for six months. The order was based on an 1865 law that provided Italian
administrative authorities with the power to “dispose of private property” for reasons of
“grave public necessity.” The requisition noted that ELSI’s decision to close its plant gave rise
“to strikes (both general and sectional),” aggravated the difficulties of the region, which had
been “severely tried” by recent earthquakes, and created a “touchy” situation in which
“unforeseeable disturbances of public order could take place.” The order also stated that
ELSI’s plan spurred a public reaction that “strongly stigmatized” the action and caused the
local press to be “very critical toward the authorities” and to accuse them of “indifference.”
These conditions, according to the Mayor, created a “grave public necessity and [an] urgency
to protect the general economic public interest.”

On April 2, 1968, ELSI’s management surrendered control of the plant and assets to the Mayor
of Palermo. Surprisingly, the Mayor did not then keep the plant open and regularly operating.
Workers were allowed to enter the plant premises, but production largely remained at a
standstill. On April 9, ELSI’s management petitioned the Mayor to lift his order, arguing that
the requisition was illegal. On April 12, the company again invited the Mayor to revoke his
order. When it received no response from the Mayor, ELSI’s management appealed the order
to the Prefect of Palermo, the Mayor’s administrative superior.Again, ELSI’s management
argued that the requisition was illegal, arbitrary, and ultra vires. However, the Prefect did not
rule on this appeal for sixteen months.

D. The Bankruptcy

On April 25, 1968, ELSI’s Board of Directors voted to file a voluntary petition in bankruptcy.
The Civil and Criminal Tribunal of Palermo adjudged ELSI bankrupt on May 16, 1968, and
designated a trustee to represent the creditors’ interests in ELSI’s assets. The dispute between
the United States and Italy over the reason for the bankruptcy became the focal issue on
which the ELSI decision turned. The United States argued that Raytheon quickly recognized
that it would not be permitted to place ELSI through an orderly liquidation. Without the
constant infusion of funds from Raytheon, ELSI could no longer meet its financial obligations
as they came due, and unless ELSI’s board of directors was willing to incur possible personal
liability for ELSI’s debts, ELSI had no choice under Italian law but to declare bankruptcy.

Italy argued that immediately prior to the time of the requisition, ELSI’s financial condition
was so grave that the company should have been placed in bankruptcy under Italian law.
Consequently, the requisition did not cause the bankruptcy. Even if the bankruptcy had been
related to the requisition, Italy argued, ELSI’s shareholders did not lose anything since by April
1 the corporation’s liabilities exceeded its assets.

The requisition began on April 1 and lasted through September 1968. On July 25, 1968 — long
before the bankruptcy court held any auction of ELSI’s assets — the Italian Minister of
Industry, Commerce and Crafts announced to the Parliament that the Italian government
intended to take over ELSI’s plant through a subsidiary of the government-owned
conglomerate, Istituto per la Ricostruzione Industriale (IRI). On November 13, 1968, the
government stated that an entity of IRI would acquire ELSI’s plant. The following month, IRI
formed a new subsidiary, Industria Elettronica Telecommunicazioni S.p.A. (ELTEL), to take
over ELSI’s plant and assets.

The bankruptcy court began its efforts to liquidate ELSI soon after the formation of ELTEL. The
first auction of ELSI’s plant and equipment occurred on January 18, 1969, with a minimum bid
of five billion lire (U.S. $8,000,000). No buyers appeared at the auction. On March 22, the
bankruptcy court held a second auction, adding ELSI’s inventory to the assets for sale and
setting a minimum bid of approximately 6.2 billion lire (U.S. $ 9,957,000). Again, no buyers
appeared. Shortly after this auction, ELTEL proposed to the trustee that it be allowed to lease
and reopen the plant for eighteen months. The trustee recommended this course of action,
and the judge agreed to grant ELTEL the lease. In April 1969, ELTEL proposed to the trustee
that it be allowed to buy ELSI’s work-in-progress — material left on the production lines —
for 105 million lire (U.S. $168,000). The bankruptcy court approved the sale. On May 3, the
bankruptcy court held the third auction of ELSI’s plant, equipment, and inventory for the same
price as the first auction. For a third time, no buyers appeared. On May 27, ELTEL offered to
buy the remaining plant, equipment, and supplies for four billion lire (U.S. $6,400,000). With
the approval of the creditors’ committee, the bankruptcy court scheduled a fourth auction on
these terms, and the sale was consummated.

Not surprisingly, the United States and Italy had two very different views of what was going
on during the bankruptcy process. The United States asserted that by its acts — delaying the
bankruptcy sale by imposing a six-month requisition, allowing the local work force to occupy
the plant, and announcing its intention to take over the plant — Italy had essentially scared
off potential buyers, producing a bankruptcy sale that greatly benefitted Italy’s own corporate
entity. The United States presented evidence, particularly during the oral proceedings,
regarding the likelihood of a European company purchasing ELSI’s product lines either
together or individually. Italy countered that the United States was advancing an absurd
conspiracy theory, envisioning a coordinated effort by numerous central and local
government officials over a protracted period. Italy contended that the lack of participation
in the bankruptcy auctions proved the low value of ELSI, implying that only the Italian
government’s willingness to purchase ELSI permitted any recovery in the bankruptcy process
at all.

E. Administrative and Judicial Remedies

Forty days after ELTEL purchased ELSI’s plant and equipment, the Prefect of Palermo ruled on
the appeal of the Mayor’s decision to requisition the plant. The Prefect declared the
requisition illegal, as it could not have achieved its stated purposes, such as preventing labor
unrest by keeping the plant operating. This ruling later formed a cornerstone of the United
States case, inasmuch as the principal standards in judging adherence to the treaty obligations
discussed below turned in part on whether the Mayor had arbitrarily interfered with property
interests. The United States saw the Prefect’s decision as an admission of the arbitrary nature
of the requisition by an official of the Italian government.
The Mayor appealed the Prefect’s decision to both the Italian Council of State and the
President of Italy. This appeal was dismissed on the ground that the Mayor lacked standing
to appeal a decision of the Prefect. Based on the Prefect’s decision, ELSI’s trustee brought suit
in the Court of Palermo against the local and national Italian governments. The trustee sought
damages for the injuries that the requisition caused to ELSI and to its creditors. The alleged
injuries arose from the decrease in the value of ELSI’s plant and equipment during the
requisition period, and from ELSI’s inability to dispose of the plant and equipment during that
period.

The District Court of Palermo denied the trustee’s claim for compensation. On appeal,
however, the Court of Appeal of Palermo awarded compensation of 114 million lire (U.S.
$171,000) for the lost use and possession of ELSI’s plant and assets during the six-month
requisition period. Often referred to by the United States as a “rental” payment, this
compensation made no provision for the decline in value due to the inability to dispose of
ELSI’s plant and equipment during the requisition period. The Supreme Court of Appeals, the
highest competent Italian court, upheld this decision on appeal.

F. Intervention by the United States

As the appeals were reaching their unsuccessful conclusion, Raytheon sought help from the
United States government in “espousing” the claim as an injury to the United States under
international law. On February 7, 1974, the United States presented Italy with a diplomatic
note advancing a claim “based upon the illegal actions and interferences by Italian authorities
contrary to treaty provisions, Italian law, and international law which precluded an orderly
liquidation under the laws of Italy of ELSI, S.p.A.” Although some limited discussions took
place between United States and Italian officials from 1974 to 1978, Italy did not respond
formally to this diplomatic note until the summer of 1978. By an aide-mémoire of June 13,
1978, Italy rejected the claim as groundless, stating, “The records show that the order of
seizure, even though unlawful, did not cause damage to the shareholders.” The United States
continued its efforts to resolve the claim through diplomatic communications, including
unsuccessful discussions held during a May 1979 meeting in Rome between United States
Secretary of State Vance and Italian Foreign Minister Forlani. Ultimately, the United States
determined to resolve the dispute through a third-party dispute settlement mechanism. From
1981 to 1985, the United States presented diplomatic notes to Italy seeking to submit the
claim to binding arbitration.

In 1985, the parties met in Rome and agreed that instead of arbitration, the United States
would submit the dispute to the ICJ. On October 7, 1985, the United States announced that it
had agreed with Italy to bring the dispute before “a special chamber as provided by the
Court’s Statute and rules of procedure, subject to mutually satisfactory resolution of
implementing arrangements.” On February 6, 1987, the United States filed its application
instituting proceedings before the ICJ. The parties subsequently filed two rounds of pleadings:
the United States Memorial (May 15, 1987), the Italian Counter–Memorial (November 16,
1987), the United States Reply (March 19, 1988), and the Italian Rejoinder (July 18, 1988).
Upon considering the views of the parties, the ICJ formed a Chamber of five judges to hear
the case: Judge Roberto Ago (Italy), Judge Sir Robert Jennings (United Kingdom), Judge
Shigeru Oda (Japan), Judge Steven Schwebel (United States), and President Nagendra Singh
(India), who was replaced by President José María Ruda (Argentina) upon Judge Singh’s death
in December 1988. The Chamber held a hearing in The Hague from February 13 to March 3,
1989.

JURISDICTION AND ISSUES IN THE CASE

The cause of action arose from the convergence of three events:

The Mayor of Palermo’s requisition of ELSI,

The Italian subsidiary of Raytheon and Machlett; ELSI’s bankruptcy;

The acquisition of ELSI by an Italian state-owned entity.

The United States charged Italy with the following violations:

Impairing Raytheon and Machlett’s right to manage and control under article III(2) of the 1948
FCN; failure to provide the full protection and security dictated by treaty and international
law under article V(1) and (3);

A taking by the Italian government without just compensation under article V(2); denial of the
right to dispose of property interests on terms no less favorable than those to which Italian
companies were entitled on a reciprocal basis under article VII;

Discriminatory treatment of Raytheon and Machlett under article I of the supplement.

Jurisdictional issue

Before adjudicating the dispute on the merits, the World Court addressed the question of its
jurisdiction. Article XXVI of the FCN Treaty explicitly confers jurisdiction upon the World Court
with respect to questions of interpretation and application of the treaty and its supplement.

ARGUMENT RAISED BEFORE THE CHAMBER.

ARGUMENT RAISED BY UNITED STATES

The United States argued before the Chamber that Raytheon undertook extensive efforts to
improve ELSI’s financial performance by enhancing its administrative efficiency and by
upgrading the plant facilities. Nevertheless, according to the United States, the real key to
making ELSI successful lay in overcoming an inherent competitive disadvantage vis-à-vis
Italian-owned company by securing an Italian investment partner with economic power and
political influence. In doing so, ELSI would gain the support of the national and regional
governments, which granted certain benefits to businesses operating in southern Italy. The
United States argued that when Raytheon’s efforts to obtain such an Italian partner failed,
ELSI lost all ability to provide a return.
The United States argued that the requisition was an unlawful, arbitrary act taken by political
authorities to appease public opinion. The United States noted that on March 31, 1968, the
President of the Sicilian Region had met with ELSI’s Managing Director to inform him that the
Italian government would not allow ELSI to close, since a closure would produce significant
unemployment just before the national elections of May 1968. Furthermore, the United
States introduced as evidence several comments made by officials of the Italian government
before and after the requisition stating that the government wished to take over ELSI itself
rather than allow its liquidation.

The United States argued that Raytheon quickly recognized that it would not be permitted to
place ELSI through an orderly liquidation. Without the constant infusion of funds from
Raytheon, ELSI could no longer meet its financial obligations as they came due, and unless
ELSI’s board of directors was willing to incur possible personal liability for ELSI’s debts, ELSI
had no choice under Italian law but to declare bankruptcy.

ARGUMENT RAISED BY THE GOVERNMENT OF ITALY

Italy countered that Raytheon essentially caused ELSI’s demise with bad management,
including poor product selection, poor choice of location, poor labor relations, and exorbitant
charges for technical assistance. Italy further argued that it had given ELSI considerable
financial assistance and that the success of non-Italian competitors during this period showed
that ELSI’s problems did not derive from its foreign ownership. Italy admitted that ELSI had
approached it for help, but stated that the financial contributions requested by ELSIexceeded
the government’s resources.

The Italian government responded that the United States was accusing it of a grand
conspiracy to take over a relatively worthless company. Italy argued that the Mayor of
Palermo had acted as he thought necessary, given the labor unrest that could have resulted
had the government remained silent. Even if the Mayor had made a mistake in requisitioning
the plant, Italy contended, he nevertheless had still exercised a police power granted to him
by Italian law, and therefore had not acted improperly.

Italy argued that immediately prior to the time of the requisition, ELSI’s financial condition
was so grave that the company should have been placed in bankruptcy under Italian law.
Consequently, the requisition did not cause the bankruptcy. Even if the bankruptcy had been
related to the requisition, Italy argued, ELSI’s shareholders did not lose anything since by April
1 the corporation’s liabilities exceeded its assets.

JUDGMENT BY THE INTERNATIONAL COURT OF JUSTICE

DECISION ON PRELIMINARY ISSUE OF JURISDICTION

The court’s jurisdictional analysis considered Italy’s challenge that the United States had not
complied with the requirement of local exhaustion. The court dismissed the U.S. suggestion
that the exhaustion-of-local-remedies rule did not apply absent explicit mention in the treaty.
On the contrary, the court held the exhaustion-of-local-remedies requirement to be a
principle of customary international law, applicable unless explicitly waived. Furthermore, the
court found that Italy’s failure to allege a lack of compliance with local exhaustion
requirements in its diplomatic exchanges with the United States did not constitute an
estoppel. In the end the court determined that the United States fulfilled its obligation under
the local-exhaustion rule.

DECISION RELATING TO THE ISSUES AND CAUSE OF ACTION

In a complex opinion, the I.C.J. held that Italy had not violated the FCN Treaty. Despite the
court’s broad interpretation of the treaty, the court found that the United States failed to
state a claim absent a direct causal link between the mayor’s requisition order and ELSI’s
bankruptcy. The court determined that the core claim was found in article III of the treaty:
impairment of the right to manage and control. Although the Italian courts found the
requisition order unjustifiable, the I.C.J. was left to determine the financial position of ELSI. If
ELSI’s position was so precarious that Raytheon and Machlett would not have been able to
manage and control it before the requisition order, then ELSI was already deprived of the
rights allegedly impaired by the order. The court also considered whether the orderly
liquidation plan was still feasible as of March 31, 1968, after the dismissal of ELSI’s employees,
and found that the United States had failed to establish the feasibility of liquidation. Based
on the court’s answers to these questions, Italy’s actions or omissions were found not to have
directly impaired the management and control of ELSI, thereby leaving no cause of action.

The court enumerated the factors that rendered the potential success of the liquidation plan
questionable. In order for the plan to have worked, the court reasoned, ELSI’s major creditors
must have been willing to wait for payment, which was unlikely. The court found that ELSI’s
twin aims of speed and maximum price were potentially incompatible and pointed out that
ELSI had been warned that sending dismissal letters to its employees might result in
requisition. The court held that the United States had not demonstrated the feasibility of an
orderly liquidation, and therefore no violation of article III (2) of the FCN Treaty existed

The court then considered the U.S. claims under article V of the treaty, the first of which
concerned the protection and security of nationals, in this case, U.S. investors and their
property in Italy. The United States argued that the occupation by the workers diminished the
plant’s value, both because it caused the plant to deteriorate, and because it impeded efforts
by the bankruptcy trustee to dispose of the plant. The treaty provides for application of a
national standard; in the court’s judgment, the United States failed to demonstrate any
departure from a national standard. The court also pointed out that ELSI’s management was
aware that sending dismissal letters was likely to result in worker unrest. Neither party
contested the fact that there had been many requisitions of Italian companies in similar
situations. The United States also argued that the Prefect’s sixteen-month delay in ruling on
ELSI’s appeal of the requisition order violated Italy’s obligations under article V. However, the
I.C.J. did not find that the delay fell below either the minimum international or the national
standard.

The second U.S. claim under article V alleged that the requisition and sale of assets
constituted a taking without due process and without just and effective compensation under
article V (2). The U.S. charge included not just the requisition of the plant but also the
subsequent acquisition of ELSI’s assets for a sum far below market value; essentially, Italy’s
conduct amounted to disguised expropriation. Declining to resolve the controversy over
textual interpretation, the court found that Italy’s acts or omissions could not constitute a
taking unless Raytheon and Machlett were significantly deprived of their interests. In light of
the attitude of local authorities, the Italian bankruptcy laws, the attitude of the various
creditors, and the attitude of its workers, both ELSI’s financial woes and the pending closure
made bankruptcy inevitable. The court did not find that the Italian government’s conduct in
any way precipitated the bankruptcy, nor amounted to a taking.

The court dismissed the claim under article I of the supplement, which protects against
arbitrary and discriminatory measures. For the reasons enumerated above, the court found
no causal connection between the requisition of the plant and the failure of the orderly
liquidation plan. Although the requisition alone may not necessarily have produced adverse
results, the court found it necessary to consider whether the requisition order was arbitrary
and discriminatory. The court found the requisition unlawful, but its status under municipal
law is not determinative of its status under international law. In order for an action to be
arbitrary, it is not enough that it be against a rule of law; it must be against “the rule of law.”
In other words, it was not sufficient for an action to be illegal–it must have flouted the very
concept of a legal system. The I.C.J. chamber did not find the mayor’s actions against the rule
of law.

The final claim rested upon article VII of the FCN Treaty, which provides for the right to
acquire, own, and dispose of immovable property within Italy. The court found that the
provision had not been violated, and that qualification (a), referring to the rights of Italian
nationals in the United States, did not apply. The court also found that the treatment of ELSI
had not been less favourable than that which had been accorded Italy’s own nationals in
similar situations. Italy demonstrated, and the United States did not dispute, that similar
requisitions of Italian companies occurred frequently. In addition, the difficulty of finding a
causal connection between the requisition and the bankruptcy given ELSI’s precarious
financial situation led the court to find no violation of article VII.
 Nauru vs. Australia, ICJ Reports, 1992

FACTS:

The Republic of Nauru on 1989 filed before the Registry of Court an application instituting
proceedings against the Commonwealth of Australia, concerning on the dispute on
rehabilitation of certain phosphate land minds under Australian administration before
Nauru’s independence. The Republic of Nauru claimed of legal entitlement to the Australian
allocation of the overseas assets of the British Phosphate Commissioners which were
marshalled and disposed of in accordance with the trilateral Agreement on 1987, and
Australia breaches its legal obligation. On the other hand, Australia contends that the
Application by Nauru is inadmissible and that the Court lacks jurisdiction to hear the claims.
On 1967 the parties recognized an Agreement which laid down the conditions under which
the property in the capital assets and the ways in which the phosphate would, in future, be
worked and sold, also the Agreement did not contain any express provision relating to the
rehabilitation of the phosphate lands. In addition, Australia stresses that Nauru achieved
independence on 1968 and that, as regards rehabilitation of the lands, it was not until 1988.

ISSUE:

Whether or not the application is admissible?

RULING:

The Court held that, it recognized even in the absence of any applicable treaty provision, delay
on the part of a claimant State may render an application inadmissible. It notes, however,
that an international law does not lay down any specific time-limit in that regard. It is
therefore the Court to determine in the light of circumstances of each case whether the
passage of time renders an application inadmissible. In the present case there is no evidence
presented with regards to the agreement of rehabilitation between the disputed parties
which was claimed by the Republic of Nauru. The Court ruled that, the issue raise by Nauru in
its application is a new claim and inadmissible as it was raised for the first time. However, the
parties entered into settlement and the case was terminated.
 Portugal vs. Australia, ICJ Reports, 1995.

FACTS:

On 1989, a treaty between Indonesia and Australia was created for the Zone of Co-operation
in a maritime area between the East Timor and Australia. Portugal filed an Application
instituting proceedings against Australia with regards to the activities of Australia to East
Timor. Portugal claimed that Australia 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. Also, Portugal added that Australia
had incurred international responsibility to the people both of East Timor and Portugal.
Australia contends that there was no dispute between itself and Portugal, that the true
respondent was Indonesia.

ISSUE:

Whether or not Australia’s contention is valid?

RULING:

Yes. The Court ruled based on the United Nations Resolutions, and in particular those of the
Security Council, 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.
The court added that it would necessarily first have to rule upon the lawfulness of Indonesia’s
conduct.
 Bosnia and Herzegovina vs. Yugoslavia (Serbia and Montenegro)

FACTS:

On 1993, Republic of Bosnia and Herzegovina instituted proceedings against the Federal
Republic of Yugoslavia with regards to the alleged violations of the Convention on the
Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of
the United Nations on 1948. Republic of Bosnia and Herzegovina invokes that Yugoslavia
violated and is continuing to violate its legal obligations toward the people and State of Bosnia
and Herzegovina under the four Geneva Conventions on 1949, in breach of its obligations
under general and customary international law, has killed, murdered, wounded, raped,
robbed, tortured, kidnapped, illegally detained and exterminated the citizens of Bosnia and
Herzegovina and continuing to do so. That under the circumstances set forth, Bosnia and
Herzegovina has the sovereign right under the Charter and Customary International Law to
request immediate assistance of any State to come to its defence, including military means.
Meanwhile, Yugoslavia recommended that the Court shall instruct authorities controlled by
the president of Bosnia and Herzegovina to comply strictly on cease-fire; and to close
immediately and disband all prisons and detention camps in the Republic of Bosnia and
Herzegovina in which the Serbs are being detained because of their ethnic origin and
subjected to acts of torture.

ISSUE:

Whether or not the Court has jurisdiction over the dispute?

RULING:

The Court ruled that, considering the proceedings may validly institute by a State against a
State which is a party to such a special provision in a treaty in force, but is not party to the
Statute, and independently of the conditions laid down by the Security Council; that a
compromissory clause in a multilateral convention, such as article IX of the Genocide
Convention, relied on by Bosnia and Herzegovina in the present case, in the view of the Court,
can be regarded prima facie as such a “special provision”; that accordingly if Bosnia and
Herzegovina and Yugoslavia are both parties to the Genocide Convention, disputes to which
article IX applies in any event prima facie within the jurisdiction of the Court. The Court
observes that the former Socialist Federal Republic of Yugoslavia signed the Genocide
Convention on 1948 and that both parties to the present case correspond to parts of the
territory of the former Socialist Federal of Yugoslavia.
 CONDITIONS 01F ADMISSION OF A STATE TO MEMBERSHIP IN THE UNITED NATIONS
(ARTICLE 4 OF CHARTER) Advisory Opinion of 28 May 1948

FACTS:

From the creation of the United Nations some 12 States had unsuccessfully applied for
admission. Their applications were rejected by the Security Council in consequence of a veto
imposed by one or other of the States which are permanent members of the Council. A
proposal was then made for the admission of all the candidates at the same time. The General
Assembly of the United Nations asked the Court to give an advisory opinion on the question
concerning the conditions of admission of a State to membership in the United Nations
(Article 4 of the Charter).

ISSUE:

"Is a Member of the United Nations which is called upon, in virtue of Article 4 of the Charter,
to pronounce itself by its vote, either in the Security Council or in the General Assembly, on
the admission of a State to membership in the United Nations, juridically entitled to make its
consent to the admission dependent on conditions not expressly provided by paragraph 1 of
the said Article? In particular, can such a Member, while it recognizes the conditions set forth
in that provision to be fulfilled by the State concerned, subject its affirmative vote to the
additional condition that other States be admitted to membership in the United Nations
together with that State?"

Advisory opinion:

The Court then makes a few preliminary observations on the question itself. Although the
Members are bound to conform to the requirements of Article 4 in giving their votes, the
question does not relate to the actual vote, the reasons for which are a matter of individual
judgment and are clearly subject to no control, but to the statements made by a Member
concerning the vote it proposes to give. The Court is not called upon to define the meaning
and scope of the conditions in Article 4 of the Charter, on which admission is made
dependent. It must merely state whether these conditions are exhaustive. If they are, a
Member is not legally entitled to make admission depend on conditions not expressly
provided in the article. The meaning of a treaty provision has thus to be determined, which is
a problem of interpretation.

The Court then analyses Article 4, paragraph 1, of the Charter. The condition therein
enumerated are five: a candidate must be (1) a State; (2) peace-loving; (3) must accept the
obligations of the Charter; (4) must be able to carry out these obligations; (5) must be willing
to do so. All these conditions are subject to the judgment of the Organization, i.e., of the
Security Council and of the General Assembly and, in the last resort, of the Members of the
Organization. As the question relates, not to the vote, but to the reasons which a Member
gives before voting, it is concerned with the individual attitude of each Member called upon
to pronounce itself on the question of admission.
It was argued that these conditions represented an indispensable minimum in the sense that
political considerations could be superimposed on them, and form an obstacle to admission.
This interpretation is inconsistent with paragraph 2 of the Article, which provides for "the
admission of any such State." It would lead to conferring on Members an indefinite and
practically unlimited power to impose new conditions; such a power could not be reconciled
with the character of a rule which establishes a close connection between membership and
the observance of the principles and obligations of the Charter, and thus clearly constitutes a
legal regulation of the question of admission. If the authors of the Charter had meant to leave
Member free to import into the application of this provision considerations extraneous to the
principles and obligations of the Charter, they would undoubtedly have adopted a different
wording. The Court considers the provision sufficient clear; consequently, it follows the
constant practice of' the Permanent Court of International Justice and holds that there is no
occasion to resort to preparatory work 'to interpret its meaning. Moreover, the interpretation
given by the Court had already been adopted by the Security Council, as is shown in Article
60 of the Council's Rules of Procedure.

The Court then passes to the second part of the question, namely, whether a State, while it
recognizes that the conditions set forth in Article 4 are fulfilled by candidate, can subordinate
its affirmative vote to the simultaneous admission of other States. Judged on the basis of the
rule which the Court adopts in its interpretation of Article 4, such a demand constitutes a new
condition; for it is entirely unconnected with those prescribed in Article 4. It is also in an
entirely different category, since it makes admission dependent not on the conditions
required of applicants, but on extraneous considerations concerning other States. It would,
moreover, prevent each application for admission from being examined and voted on
separately and on its own merits. This would be contrary to the letter and spirit of the Charter.
For these reasons, the Court answered the question put to it in the negative.
 Freezone case

FACTS:

By virtue of international treaties and agreements, the Gex district, although situated in
territory under French sovereignty, is for customs purposes a free zone. When the Congress
of Vienna in 1815 rectified the frontiers of France and Switzerland, it allowed the Gex district
to continue to enjoy the exemption from Customs duties which had been granted it under
the Old Régime by an edict of 22 December 1775. The free zone of Upper Savoy was created
by an imperial decree of the French Government on 12 June 1860, under which, in accordance
with the referendum held to decide whether Savoy should return to France, the French
customs were withdrawn to the boundary of the area covered by the plebiscite. A clear
distinction should be drawn between these “free zones of Upper Savoy and the Gex district”
and the “free zones” found in a number of sea-ports.

ISSUE:

The issue at the core of the judgment of 7 June 1932 of the Permanent Court of International
Justice (PCIJ) in the controversy between France and Switzerland was whether a State can get
rid of an obligation assumed towards a State through a later treaty concluded with other
States.

RULING:

It is contended that the powers of the Court cannot be so wide as those of the Parties,
because it would have been useless for the Parties to have asked for a determination by the
Court, under Article i of the Special Agreement, of the question whether the old treaties and
other acts which are the basis of the Swiss rights have been abrogated, if the Court is to be at
liberty, in deciding the questions involved in the execution of Article 435, to set those rights
aside. It is admitted that Switzerland herself, in making the new agreement foreshadowed in
Article 435, could agree to the suppression, but it is urged that the powers of the Court under
Article 2, paragraph 1, of the Special Agreement, cannot be equally wide, because the Court
must respect the rights which it has itself recognized.

The parties to the present opinion can see no sound reason why the liberty enjoyed by the
Court in settling every question involved in the execution of Article 435, paragraph 2, is more
restricted than that which the Parties themselves would have enjoyed in determining the
effect of "present conditions" upon the stipulations of the treaties of 1815 and 1816. If that
proposition is correct, it follows that the Court is not [p28] prevented, in carrying out its task
under Article 2, paragraph 1, of the Special Agreement, from placing the French customs line
at the political frontier, if satisfied that this would be the regime most in conformity with
present day requirements.
Applicability of the Obligation to Arbitrate under Section 21 of the United Nations
Headquarters Agreement of 26 June 1947

On 2 March 1988, the General Assembly of the United Nations adopted a resolution whereby
it requested the Court to give an advisory opinion on the question of whether the United
States of America, as a party to the Agreement between the United Nations and the United
States of America regarding the Headquarters of the United Nations, was under an obligation
to enter into arbitration in accordance with Section 21 of the Agreement. That resolution had
been adopted in the wake of the signature and imminent entry into force of a law of the
United States, entitled Foreign Relations Authorization Act, Title X of which established
certain prohibitions regarding the Palestine Liberation Organization (PLO), inter alia, a
prohibition

“to establish or maintain an office, headquarters, premises or other facilities or

establishments within the jurisdiction of the United States at the behest or direction of, or
with funds provided by the Palestine Liberation Organization”.

The PLO, in accordance with the Headquarters Agreement, had a Permanent Mission to the
United Nations. The Secretary-General of the United Nations invoked the dispute settlement
procedure set out in Section 21 of the Agreement and proposed that the negotiations phase
of the procedure commence on 20 January 1988. The United States, for its part, informed the
United Nations that it was not in a position and was not willing to enter formally into that
dispute settlement procedure, in that it was still evaluating the situation and as the Secretary-
General had sought assurances that the arrangements in force at the time for the Permanent
Observer Mission of the Palestine Liberation Organization would not be curtailed or otherwise
affected. On 11 February 1988, the United Nations informed the Department of State that it
had chosen its arbitrator and pressed the United States to do the same. The Court, having
regard to the fact that the decision to request an advisory opinion had been made “taking
into account the time constraint”, accelerated its procedure. Written statements were filed,
within the time-limits fixed, by the United Nations, the United States of America, the German
Democratic Republic and the Syrian Arab Republic, and on 11 and 12 April 1988 the Court
held hearings at which the United Nations Legal Counsel took part. The Court rendered its
Advisory Opinion on 26 April 1988. It began by engaging in a detailed review of the events
that took place before and after the filing of the request for an advisory opinion, in order to
determine whether there was, between the United Nations and the United States, a dispute
of the type contemplated in the Headquarters Agreement. In so doing, the Court pointed out
that its sole task was to determine whether the United States was obliged to enter into
arbitration under that Agreement, not to decide whether the measures adopted by the
United States in regard to the PLO Observer Mission did or did not run counter to that
Agreement. The Court pointed out, inter alia, that the United States had stated that “it had
not yet concluded that a dispute existed” between it and the United Nations “because the
legislation in question had not been implemented”. Then, subsequently, referring to “the
current dispute over the status of the PLO Observer Mission” it had expressed the view that
arbitration would be premature. After initiating litigation in its domestic courts, the United
States, in its written statement, had informed the Court of its belief that arbitration would
not be “appropriate or timely”. After saying that it could not allow considerations as to what
might be “appropriate” to prevail over the obligations deriving from Section 21, the Court
found that the opposing attitudes of the United Nations and the United States showed the
existence of a dispute, whatever the date on which it might be deemed to have arisen. It
further qualified that dispute as a dispute concerning the application of the Headquarters
Agreement, and then found that, taking into account the United States’ attitude, the
Secretary-General had in the circumstances exhausted such possibilities of negotiation as
were open to him, nor had any “other agreed mode of settlement” within the meaning of
Section 21 of the Agreement been contemplated by the United Nations and the United States.
The Court accordingly concluded that the United States was bound to respect the obligation
to enter into arbitration, under Section 21. In so doing, it recalled the fundamental principle
of international law that international law prevailed over domestic law, a principle long
endorsed by a body of judicial decisions.
 Legality of Use of Force (Yugoslavia v. United States of America)

FACTS:

On 29 April 1999, the (former) Federal Republic of Yugoslavia (FRY) instituted proceedings
before the International Court of Justice (ICJ) against the United States of America “for
violation of the obligation not to use force”, resulting from the bombing of Yugoslav territory
by the United States and other Member States of NATO. Concurrent to this Application, the
FRY submitted a request for the indication of provisional measures, calling on the ICJ to order
the United States to “cease immediately its acts of use of force” and to refrain from any
further threat or act of force against the FRY.

In filing the Application, the FRY relied on Article IX of the Convention on the Prevention and
Punishment of Genocide, 1948 and Article 38(5) of the Rules of the Court. These articles state,
respectively, that disputes between contracting parties relating to the interpretation,
application or fulfilment of the Convention shall be submitted to the ICJ, and that applications
filed against States which have not accepted the Court’s jurisdiction cannot proceed unless
and until that State accepts the Court’s jurisdiction for the purposes of the case.

ISSUE:

Whereas on a request for provisional measures the Court need not, before deciding whether
or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case,
yet it ought not to indicate such measures unless the provisions invoked by the applicant
appear, prima facie, to afford a basis on which the jurisdiction of the Court might be
established;

Whereas, in order to determine, even prima facie, whether a dispute within the meaning of
Article IX of the Genocide Convention exists, the Court cannot limit itself to noting that one
of the Parties maintains that the Convention applies, while the other denies it; and whereas
in the present case the Court must ascertain whether the breaches of the Convention alleged
by Yugoslavia are capable of falling within the provisions of that instrument and whether, as
a consequence, the dispute is one which the Court has jurisdiction ratione materiae to
entertain pursuant to Article IX (cf. Oil Platforms (Islamic Republic of Iran v. United States of
America), Preliminary Objection, Judgment, I.C.J Reports 1996 (II), p. 810, para. 16);

RULING:
On the issue of prima facie jurisdiction, the ICJ ruled that whilst it was indisputable that both
the United States and the Federal Republic of Yugoslavia are parties to the Genocide
Convention, a reservation made to Article IX by the United States declaring that its “specific
consent” is needed before any dispute is submitted to the ICJ, meant that Article IX could not
constitute a basis for jurisdiction. Regarding Article 38(5), the Court said that in the absence
of consent by the United States it lacked even prima facie jurisdiction. As a result, in rejecting
the FRY’s request for provisional measures by twelve votes to three, the Court concluded that
it “manifestly lacked jurisdiction to entertain Yugoslavia’s Application”.
 Legality of the use of Nuclear Weapon

The legality of nuclear weapons under international law remains hotly contested. In fact, the
1996 Advisory Opinion by the International Court of Justice (ICJ) on the legality of the threat
or use of nuclear weapons raised as many questions as it answered, while in some respects
the state of relevant international law has evolved since 1996.

A central question is naturally whether nuclear weapons may ever be used in a way that
respects the rules of jus in bello, especially the law applicable to the conduct of hostilities in
a situation of armed conflict. Primary among the rules of international humanitarian law (IHL)
is distinction in attacks, which requires parties to any conflict–international or non-
international–to direct attacks only against lawful military objectives, whether persons or
objects. However, even if an attack is so directed, the rule of proportionality dictates that
civilian harm (deaths, injuries, damage to civilian objects, or a combination

thereof) may not be expected to be excessive when compared with the direct and concrete
military advantage anticipated. Arguably, expected environmental damage must also be
assessed as part of the proportionality rule. Broadly speaking, three scenarios have frequently
been advanced for a lawful use of nuclear weapons, and two would not, a priori, involve a
difficult proportionality assessment as the targets would be clear military objectives with little
ambient civilian damage expected. The first of these scenarios is use against a nuclear-armed
submarine on the high seas about to fire its missiles. While the high seas might suffer from
environmental damage (and of course any civilian vessels in the vicinity might be destroyed
with a concomitant loss of life), a case can be made that the attack does not violate primary
IHL rules.

Second, a mass gathering of armed forces in the desert far away from populated areas has
been advanced as a possible lawful target for a nuclear strike. Again, the proportionality
element might be minimal, although here an additional IHL prohibition designed to protect
combatants–on means and methods of warfare of a nature to cause superfluous injury or
unnecessary suffering–would need to be assessed. Even if the rule does not operate as an
absolute standard, it is extremely hard to conceive of circumstances when it could be deemed
truly necessary to engender among those engaged in combat the horrific blast and burn
injuries that nuclear weapons cause as well as the long-term physiological harm they
inevitably inflict, including a significantly increased risk of cancer mortality.

Third, the potential use of nuclear weapons could be claimed to not violate IHL where it
fulfilled the criteria for a belligerent reprisal (i.e. as a necessary response to an earlier serious
violation of IHL). However, it is a huge challenge to envisage circumstances where use of
nuclear weapons against civilians could hope to meet the stringent requirements of a lawful
reprisal in practice. But even if it is possible, in theory, to envisage a limited use of nuclear
weapons that does not violate IHL, human rights law would also apply, subject to jurisdictional
rules. In the context of the right to life, international human rights courts primarily analyse
whether sufficient effort was made to avoid or limit loss of life in cases where potentially
lethal force cannot be avoided. The possible IHL justification that such loss is not excessive
compared with the military advantage expected is not in practice a factor taken into account
by such courts. This is important given the elastic nature that the ‘proportionality in attack’
rule seems to enjoy, and the fact that insufficient precautions in attack are not listed as
‘indiscriminate attacks’ as such under IHL. The positive obligations required under human
rights law to ensure the proper respect of such law means that human rights courts insist that
the law be effective, and not theoretical.

Any use of nuclear weapons will, therefore, result in concrete human rights violations that
are justiciable. Furthermore, where use of nuclear weapons occurred by one state on the
territory or against the armed forces of another (not the only possible scenario involving use,
but arguably the most probable), then the requirements of jus ad bellum would also need to
be satisfied. This body of law, which regulates the interstate use of force, would allow
weapons, potentially including nuclear weapons, to be used in self-defence against an armed
attack. To do so, the law would judge the necessity for the use of force and whether the force
that was used was proportionate to the aim of repelling the attack. Perhaps a surprise to
some, the law would not impose particular restrictions on nuclear weapons as a weapon type,
but merely consider their use as one element in the use of force equations. Arguably, the
same formula also applies to threats (ad bellum): threatening use of force by nuclear weapons
is governed by the same legal framework as threats of the use of force in general. Given that
use of nuclear weapons could constitute violations of IHL rules, such acts would potentially
also be subject to rules and proceedings under international criminal law (ICL). Use of nuclear
weapons could, under certain circumstances, amount to genocide, crimes against humanity,
and/or war crimes. This would seem to apply irrespective of the discrepancy between the
1998 Rome Statute of the International Criminal Court (ICC) and other international legal
regimes, including customary law, when it comes to specific references to prohibited
weapons.

Beyond use, the legality of development, testing, production, stockpiling, and transfer must
also be assessed under international law. Arguably, a ban on atmospheric testing of nuclear
weapons has now crystallized into customary international law; the same cannot, though, be
said so easily with respect to underground testing. Already under the 1959 Antarctic Treaty
any activity involving nuclear weapons, such as their testing, stockpiling, deployment, or
launching in or from Antarctica is prohibited; similar provisions apply by treaty to nuclear
weapons in outer space or on the sea bed.

In addition, the rapid development of environmental law, a branch of international law

touched on by the ICJ in its 1996 Advisory Opinion, brings with it implications for the testing
and release of pollutants at various stages of the weapons production cycle. Only nine states
possess nuclear weapons, but these states represent almost half the world’s population and
more than one quarter of the earth’s land area.

These nine states are currently not covered by the 1968 Nuclear Non-Proliferation Treaty
(NPT)’s comprehensive prohibition on non-nuclear weapons states producing or otherwise
acquiring nuclear weapons. These states include the five permanent members of the United
Nations Security Council, which are recognized nuclear weapon states under the NPT, as well
as the Democratic People’s Republic of Korea, India, Israel, and Pakistan, which are not party
to the NPT. But though these states are not bound by multilateral treaty obligations that
prohibit the acquisition and production of nuclear weapons, this does not mean that
environmental law is irrelevant to these states’ activities involving nuclear weapons. All stages
of the ‘life-cycle’ of nuclear weapons may cause pollution of the environment, not only
through radioactive substances but also through hazardous chemicals used in producing and
maintaining these weapons. Indeed, it is argued that nuclear weapons states might be subject
to environmental litigation or non-compliance procedures for breaching their international
environmental obligations, even absent nuclear detonation. And for those nuclear weapons
states that are party to the NPT, Article VI on disarmament is especially pertinent. While
disagreement persists regarding the precise nature and scope of the obligation in this
provision, Article VI is a binding legal obligation, not merely a goal. Thus, when looking at the
number of nuclear warheads today, more than 40 years after the treaty’s entry into force, the
NPT has proved less efficient with regard to nuclear disarmament obligations undertaken by
the nuclear weapons states (NWS). Finally, the NPT is also seen in light of the legal regimes
pertaining to the two other weapons of mass destruction, especially the treaties on biological
and chemical weapons. Contrary to what is the case for these two other weapons, the NPT
does not contain a rule prohibiting use of nuclear weapons.

On the topic of armed non-state actors and nuclear materials, an extensive and far-reaching
normative framework exists. The question is to what extent it is able to prevent nuclear
terrorism. Nuclear-weapons-free zones (NWFZs) provide complementary machinery to other
measures of disarmament, non-proliferation of nuclear weapons, and the development of
peaceful uses of nuclear energy. Since the end of the Cold War, the rationale for the bipolar
nuclear arms race has diminished, and hence the rationale for keeping the nuclear weapons
debate strictly within the hands of the NWS should by implication have diminished. The zone
countries may thus have a greater potential for influencing the debates on nuclear weapons,
in various settings, than currently appears to be the case. The potential of NWFZs in defusing
the risk of regional nuclear arms races and decreasing the risk of nuclear weapons falling into
the hands of non-state actors are also increasingly important security considerations for the
major nuclear powers.

ASSESSING CLAIMS TO REVISE THE LAWS OF WAR

International law is still largely a decentralized process, in which much lawmaking (particularly
for the most innovative matters) is initiated by unilateral claim, whether explicit or behavioral.
Claims to change inherited security arrangements, or any other part of the law, ignite a
process of counterclaims, responses, replies, and rejoinders until stable expectations of right
behavior emerge. Since every legal regime perforce benefits some actors more than others,
no sooner does a new normative arrangement stabilize than it, too, comes under stress from
new claims for change, in an ongoing bargaining process between sometimes rapidly shifting
coalitions.
The law setting the conditions under which states may resort to military force, the jus ad
bellum, was shaped in the early part of the twentieth century and largely codified in the
United Nations Charter. The unilateral and discretionary use of proactive military force, until
then lawful, was henceforth prohibited; reactive military force was to be limited to self-
defense and then only insofar as, and until, the international community could come to the
assistance of a victim of unlawful military force. All uses of force were to be necessary,
proportional, and discriminating. s the unprecedented undertaking by the major powers in
the Security Council to cooperate to ensure the collective defense of victims of aggression.
Even those who assumed that the Security Council would wield the power the

Charter assigned it in each appropriate case did not imagine that it would act quickly. But time
was less of the essence then than now, given the character and potential of the arsenals of
adversaries.

The development of weapons roared on, as did their proliferation. Wholly apart from the
doubts that had arisen about the effectiveness of the Security Council, the introduction of
vastly more destructive and rapidly delivered weapons began to put the efficacy of the legal
regime itself into question. The reason was simple: the opportunity for meaningful self-
defense could be irretrievably lost if an adversary, armed with much more destructive
weapons and poised to attack, had to be allowed to initiate (which could mean, in effect, to
accomplish) its attack before the right of self-defense came into operation. This development
prompted a claim to expand the right of reactive self-defense to "anticipatory self-defense."

After atomic bombs brought the Second World War to an abrupt halt, the United States and
the Soviet Union scrambled to acquire larger and increasingly powerful nuclear weapons,
together with more sophisticated, varied, and rapid modes for their delivery. As the strategic
specialists on each side gamed the application of these weapons in virtually every imaginable
scenario, it became increasingly clear that a claim of anything like anticipatory self-defense
would be calamitous as between adversaries with significant arsenals of intercontinental
ballistic nuclear missiles. As a result, the latter part of the last century witnessed the
development among the major nuclear adversaries of a special operational code for the jus
ad belium of strategic weapons: the inaptly called "rules of the game." A common interest in
continuous reciprocal deterrence was to be achieved, in a context of intense suspicion and
distrust, by the prospect of mutual assured destruction if the nuclear weapons of one state
were unleashed against the other.

The realization by security specialists in the United States and the then Soviet Union of the
essentiality of the regime of mutually assured destruction to their survival led, logically, if
counterintuitively, to another conclusion: an antiballistic missile (ABM) weapon, like the

development of more precise weapons, could disturb the parity underlying the international
security system they had established. A comprehensive and effective ABM system in one
superpower would have defeated the deterrence mechanism by tempting that state to strike
first and then hunker down behind its shield, which, in theory, would cause the second
striker's nuclear missiles to bounce off harmlessly. The mere deployment of a significant ABM
could revive the need for strategic anticipatory self-defense. Hence, a treaty outlawing the
development and wide deployment of ABM systems was an inevitable and organic offshoot
of the strategic regime. But all legal arrangements are responses to present and projected
contexts. The mechanism of mutually assured destruction and the system of minimum world
order that it sustained presupposed the exclusive availability of nuclear weapons to a small
number of "likeminded" states. The system could operate as long as the United States, the
Soviet Union,

and, perhaps, China were the only possessors of nuclear arsenals that were sufficiently large
and geographically dispersed to withstand a first strike by an adversary and still riposte with
a level of assured destruction so unacceptable to the putative first striker that it its very
anticipation would lead that state to resist the temptation and abandon its plan.

International law has been grappling with the claim of preemptive self-defense for decades.
By their nature, all acts of self-defense are initiated unilaterally and evaluated for their
lawfulness only after the fact. In all claims to self-defense, the international legal review of
the
action will be based upon a prudential contextual assessment of factors such as the degree of
the threat presented, the availability of a meaningful organized international response, the
urgency of unilateral action to prevent or deflect the attack, and the proportionality of the

means chosen to the necessity presented by the threat. Thus, on a case-by-case basis, the
legal danger of an abuse of preemptive self-defense is no greater than for anticipatory self-
defense, which also does not require an "armed attack" to justify it. Humanitarian
intervention.

The Humanitarian Intervention in a nutshell;

Since the beginning, humans have resorted to violence as a way to settle disagreements. Yet
through the ages, people from around the world have tried to limit the brutality of war. It was
this humanitarian spirit that led to the First Geneva Convention of 1864, and to the birth of
modern International Humanitarian Law.

Setting the basic limits on how wars can be fought, these universal laws of war protect those
not fighting, as well as those no longer able to. To do this, a distinction must always be made
between who or what may be attacked, and who or what must be spared and protected.

CIVILIANS

Most importantly, civilians can never be targeted. To do so is a war crime. Every possible care
must be taken to avoid harming civilians or destroying things essential for their survival. They
have a right to receive the help they need.

The laws of war prohibit torture and other ill-treatment of detainees, whatever their past.
They must be given food and water and allowed to communicate with loved ones. This
preserves their dignity and keeps them alive.

- SICK & WOUNDED -

Medical workers save lives, sometimes in the most dangerous conditions. Medical workers
must always be allowed to do their job and the Red Cross or Red Crescent must not be
attacked.

- LIMITS TO WARFARE -

Advances in weapons technology has meant that the rules of war have also had to adapt.
Because some weapons and methods of warfare don't distinguish between fighters and
civilians, limits on their use have been agreed.

In the future, wars may be fought with fully autonomous robots. But will such robots ever
have the ability to distinguish between a military target and someone who must never be
attacked? No matter how sophisticated weapons become it is essential that they are in line
with the rules of war. International Humanitarian Law is all about making choices that
preserve a minimum of human dignity in times of war, and makes sure that living together
again is possible once the last bullet has been shot.
 UNITED STATES OF AMERICA vs. IRAN

FACTS:

On November 29, 1979, the United States of America had instituted proceedings against Iran in a case
arising out of the situation at its Embassy in Tehran and Consulates at Tabriz and Shiraz, and the seizure
detention as hostages of its diplomatic and consular staff in Tehran and two more citizens of the
United States.

The Iranian authorities’ decision to continue the subjection of the Embassy to occupation, and of its
staff to detention as hostages, gave rise to repeated and multiple breaches of Iran’s treaty obligations,
additional to those already committed at the of the seizure of the Embassy.

The procedure then continued in accordance with the Statute and Rules of Court. Iran took no part in
the proceedings, and no submission were therefore presented on its behalf.

ISSUE: Whether or not Iran had violated its international obligations to the United States

RULING:

The court finds that Iran, by committing successive and continuing breaches of the obligations laid
upon it by the Vienna Conventions of 1961 and 1963, the 1995 treaty and the applicable rules of
general international law, has incurred responsibility towards the United Stats

At the time the court also considers it essential to reiterate the observations it made in its order of 15
December 1979 on the importance of the principles of international law governing diplomatic and
consular relations. After stressing the particular gravity of the case, arising out of the fact that it is not
any private individuals or groups that have set at naught the inviolability of an embassy, but the very
government attention of the entire international community to the irreparable harm that may be
caused by events of the kind before the court. Such events cannot fail to undermine a carefully
constructed edifice of law, the maintenance of which is vital for the security and well-being of the
international community.
 Democratic Republic of the Congo (DRC) vs. Uganda

FACTS:

On 23 June 1999, the Democratic Republic of the Congo (DRC) filed in the Registry of the Court
Applications instituting proceedings against Burundi, Uganda and Rwanda “for acts of armed
aggression committed in flagrant breach of the United Nations Charter and of the Charter of the
Organization of African Unity”. In addition to the cessation of the alleged acts, the DRC sought
reparation for acts of intentional destruction and looting and the restitution of national property and
resources appropriated for the benefit of the respective respondent States.

On 19 June 2000, the DRC filed a Request for the indication of provisional measures to put a stop to
all military activity and violations of human rights and of the sovereignty of the DRC by Uganda. On
1 July 2000, the Court ordered each of the two Parties to prevent and refrain from any armed action
which might prejudice the rights of the other Party or aggravate the dispute, to take all measures
necessary to comply with all of their obligations under international law and also to ensure full respect
for fundamental human rights and for the applicable provisions of humanitarian law.

Uganda subsequently filed a Counter-Memorial containing three counter-claims. By an Order of

29 November 2001, the Court found that two of the counter-claims (acts of aggression allegedly
committed by the DRC against Uganda; and attacks on Ugandan diplomatic premises and personnel
in Kinshasa and on Ugandan nationals for which the DRC is alleged to be responsible) were admissible
as such and formed part of the proceedings.

ISSUE: W/N the armed activities of Uganda in the Democratic Republic of Congo violated the
international prohibition against aggressive use of force as well as international human rights and
international humanitarian law.

RULING:

The Court found that, by actively extending military, logistic, economic and financial support to
irregular forces operating on the territory of the DRC, the Republic of Uganda had violated the
principle of non-use of force in international relations and the principle of non-intervention.

Having concluded that Uganda was the occupying power in Ituri at the relevant time, the Court stated
that, as such, it was under an obligation, according to Article 43 of the 1907 Hague Regulations, to
take all measures in its power to restore and ensure, as far as possible, public order and safety in the
occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This had
not been done. The Court also considered that it had credible evidence sufficient to conclude that
UPDF (Uganda Peoples’ Defence Forces) troops had committed violations of international
humanitarian law and human rights law. It found that these violations were attributable to Uganda.

The Court noted in its Judgment that the nature, form and amount of compensation owed by each
Party had been reserved and would only be submitted to the Court should the Parties be unable to
reach agreement on the basis of the Judgment just rendered by the Court. Following the delivery of
the Judgment, the Parties have regularly informed the Court on the progress of negotiations.

On 13 May 2015, noting that the negotiations with Uganda on this question had failed, the DRC asked
the Court to determine the amount of reparation owed by Uganda. While Uganda maintained that
this request was premature, the Court, in an Order of 1 July 2015, observed that although the Parties
had tried to settle the question directly, they had clearly been unable to reach an agreement. The
Parties have since filed written pleadings on the question of reparations and the case was due to be
heard in 2019.
 G.R. No. L-2110, July 22, 1948
GODOFREDO DIZON, petitioner,
vs.
THE COMMANDING GENERAL OF THE PHILIPPINE RYUKUS COMMAND, UNITED STATES
ARMY, respondent.

FACTS:

An agreement was concluded between the Philippines and the United States of America whereby the
latter is authorized to occupy and use certain portions of the Philippine territory as military bases and
to exercise jurisdiction over certain offenses committed within and outside said bases. For an offense
allegedly committed at the main storage area, Philrycom Engineer Depot, United States Army, APO
900, located at Quezon City, Philippines, the petitioner was prosecuted in and convicted by a General
Court Martial appointed by the Commanding General of the Philippine-Ryukus Command of the
United States Army and accordingly sentenced, on March 4, 1948, to confinement at hard labor for
five years.

The petitioners contend that the General Court Martial had no jurisdiction over the alleged offense
which was committed in a place not a base of the United States Army within the meaning of the
Agreement concerning military bases of March 14, 1947, and that even assuming that the offense was
committed in a base, said Agreement is unconstitutional because it deprives the Philippine courts of
the jurisdiction over all offenses exclusively vested in them by Article VIII, section 1, of the
Constitution, and violates section 1 of Article III of the Constitution guaranteeing to every person in
the Philippines due process and equal protection of the law.

There is no dispute that the main storage area in which the offense in question is alleged to have been
committed is located within a site in Quezon City which has been used as headquarters by the
Philippine-Ryukus Command of the United States Army since before March 14, 1947, when the
Agreement between the Philippines and United States regarding military bases was concluded. The
bases granted to the United States under the Agreement are specified and enumerated in Annex "A"
and annex "B" of said Agreement which, however, in its Article XXI provides that "the United States
shall retain the right to occupy temporary quarters and installations now existing outside the bases
mentioned in Annex A and Annex B" (paragraph 1) and that "the terms of this Agreement pertaining
to bases shall be applicable to temporary quarters and installations referred to in paragraph 1 of this
article while they are so occupied by the armed forces of the United States; provided, that offenses
committed within the temporary quarters and installations located within the present limits of the
City of Manila shall no be considered as offenses within the bases" (paragraph 3).

ISSUE:

Whether or not USA can exercise jurisdiction over certain offenses committed within and outside said
bases.
RULING:

Under the Agreement of March 14, 1947, the United States was given express permission to establish
military bases on certain portions of the Philippine territory and to exercise jurisdiction over certain
offenses. The rights thus granted are no less than those conceded by the rule of international law to
"a foreign army allowed to march through a friendly country or to be stationed in it, by permission of
its government or sovereign." For this reason, if for no other, the constitutional point raised by the
petitioner becomes untenable. The jurisdiction granted to the United States under the Agreement
may be wider than what is recognized by international law, but the facts remains that the lesser right
is fundamentally as much a diminution of the jurisdiction of the Philippine courts as the greater right.
If the latter right were to be invoked in the absence of the Agreement, there is every reason to state
that:

In further support of the Agreement in question, Indeed, in the Proclamation of Philippine

Independence, it was recited that "Whereas the Act of Congress approved March 24, 1934, known as
the Philippine Independence Act, directed that on the 4th day of July immediately following a ten-year
transitional period leading to the independence of the Philippines the President of the United States
of America should by proclamation withdraw and surrender all rights of possession, supervision,
jurisdiction, control or sovereignty of the United States of America in and over the territory and people
of the Philippines except certain reservations therein and thereafter authorized to be made and on
behalf of the United States of America should recognize the independence of the Philippines, now
therefore, I, Harry S. Truman, President of the United States of America, acting under and by virtue of
the authority vested in me by the aforesaid Act of Congress, do proclaim that, in accord with
and subject to the reservations provided for in the pertinent provisions of the existing acts of Congress,
the United States of America hereby withdraws and surrenders all rights of possession, supervision,
jurisdiction, control or sovereignty now existing and exercised by the United States of America in and
over the territory and people of the Philippines and on behalf of the United States of America I do
hereby recognize the independence of the Philippines as a separate and self-governing nation and
acknowledge the authority and control over the same of the Government instituted by the people
thereof under the constitution now in force. . ." (Emphasis supplied.)

But the point we want to bring out is that, if bases may be validly granted to the United States under
the Constitution, there is no plausible reason while the lesser attribute of the jurisdiction cannot be
waived. From another point of view, waiver of jurisdiction may well be considered as included within
the terms "necessary appurtenances to such bases, and the rights incident thereto," appearing in the
Joint Resolution of June 29, 1944, herein-above already quoted.

Jurisdiction being validly waived in favor of the United States under the Agreement in question, it
follows that petitioner's contention regarding alleged denial of due process and equal protection of
the law becomes unfounded.

The petition is therefore hereby denied, with costs against the petitioner. So ordered