LOTUS CASE: FRANCE V.

TURKEY remains free to

Facts of the Case: A collision occurred on the high seas between a French vessel – Lotus –
and a Turkish vessel – Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals on
board the Turkish vessel. The 10 survivors of the Boz-Kourt (including its captain) were taken
to Turkey on board the Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the
captain of the Turkish ship were charged with manslaughter. Demons, a French national, was
sentenced to 80 days of imprisonment and a fine. The French government protested,
demanding the release of Demons or the transfer of his case to the French Courts. Turkey and
France agreed to refer this dispute on the jurisdiction to the Permanent Court of International
Justice (PCIJ).

Questions before the Court: Did Turkey violate international law when Turkish courts
exercised jurisdiction over a crime committed by a French national, outside Turkey? If yes,
should Turkey pay compensation to France?

The Court’s Decision: Turkey, by instituting criminal proceedings against Demons, did not
violate international law.

Relevant Findings of the Court: Establishing Jurisdiction: Does Turkey need to support its
assertion of jurisdiction using an existing rule of international law or is the mere absence of a
prohibition preventing the exercise of jurisdiction enough?

The first principle of the Lotus Case: A State cannot exercise its jurisdiction outside its
territory unless an international treaty or customary law permits it to do so. This is what
we called the first principle of the Lotus Case. The Court held that:

“Now the first and foremost restriction imposed by international law upon a State is that
– failing the existence of a permissive rule to the contrary – it may not exercise its
power in any form in the territory of another State. In this sense jurisdiction is certainly
territorial; it cannot be exercised by a State outside its territory except by virtue of a
permissive rule derived from international custom or from a convention.” (para 45)

The second principle of the Lotus Case: Within its territory, a State may exercise its
jurisdiction, in any matter, even if there is no specific rule of international law permitting
it to do so. In these instances, States have a wide measure of discretion, which is only
limited by the prohibitive rules of international law. The Court held that:

“It does not, however, follow that international law prohibits a State from exercising
jurisdiction in its own territory, in respect of any case which relates to acts which have
taken place abroad, and in which it cannot rely on some permissive rule of international
law. Such a view would only be tenable if international law contained a general
prohibition to States to extend the application of their laws and the jurisdiction of their
courts to persons, property and acts outside their territory, and if, as an exception to
this general prohibition, it allowed States to do so in certain specific cases. But this is
certainly not the case under international law as it stands at present. Far from laying
down a general prohibition to the effect that States may not extend the application of
their laws and the jurisdiction of their courts to persons, property and acts outside their
territory, it leaves them in this respect a wide measure of discretion, which is only
limited in certain cases by prohibitive rules; as regards other cases, every State

1|PUBLICINTERNATIONALLAW
 adopt the principles which it regards as best and most suitable. This discretion left to
States by international law explains the great variety of rules which they have been
able to adopt without objections or complaints on the part of other States …In these
circumstances all that can be required of a State is that it should not overstep the
limits which international law places upon its jurisdiction; within these limits, its title to
exercise jurisdiction rests in its sovereignty.” (paras 46 and 47)

This applied to civil and criminal cases. If the existence of a specific rule was a pre-requisite
to exercise jurisdiction, the Court argued, then “it would…in many cases result in paralysing
the action of the courts, owing to the impossibility of citing a universally accepted rule on
which to support the exercise of their [States’] jurisdiction” (para 48).

The Court based this finding on the sovereign will of States. It held that:

“International law governs relations between independent States. The rules of law
binding upon States therefor emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of law and
established in order to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims. Restrictions upon
the independence of States cannot therefore be presumed”

[Note: This was one of the more debated aspects of the judgement. Some argued that the
Court placed too much emphasis on sovereignty and consent of States (i.e. took a strong
positivist view)].

Criminal Jurisdiction: Territorial Jurisdiction

France alleged that the flag State of a vessel has exclusive jurisdiction over offences
committed on board the ship in high seas. The Court disagreed. It held that France, as the
flag State, did not enjoy exclusive territorial jurisdiction in the high seas in respect of a
collision with a vessel carrying the flag of another State (paras 71 – 84). The Court held that
Turkey and France both have jurisdiction in respect of the whole incident: in other words,
there was concurrent jurisdiction.

The Court held that a ship in the high seas is assimilated to the territory of the flag State. This
State may exercise its jurisdiction over the ship, in the same way as it exercises its jurisdiction
over its land, to the exclusion of all other States. In this case, the Court equated the Turkish
vessel to Turkish territory. The Court held that the “… offence produced its effects on the
Turkish vessel and consequently in a place assimilated to Turkish territory in which the
application of Turkish criminal law cannot be challenged, even in regard to offences
committed there by foreigners.” The Court concluded that Turkey had jurisdiction over this
case. It further said:

“If, therefore, a guilty act committed on the high seas produces its effects on a vessel
flying another flag or in foreign territory, the same principles must be applied as if the
territories of two different States were concerned, and the conclusion must therefore
be drawn that there is no rule of international law prohibiting the State to which the
ship on which the effects of the offence have taken place belongs, from regarding the
offence as having been committed in its territory and prosecuting, accordingly, the
delinquent.”

2|PUBLICINTERNATIONALLAW
The Lotus Case is also significant in that the Court said that a State would have territorial
jurisdiction, even if the crime was committed outside its territory, so long as a constitutive
element of the crime was committed in that State. Today, we call this subjective territorial
jurisdiction. In order for subjective territorial jurisdiction to be established, one must prove that
the element of the crime and the actual crime are entirely inseparable: in other words, if the
constituent element was absent – the crime would not have happened. The Court said:
“The offence for which Lieutenant Demons appears to have been prosecuted was an act – of
negligence or imprudence – having its origin on board the Lotus, whilst its effects made
themselves felt on board the Boz-Kourt. These two elements are, legally, entirely inseparable,
so much so that their separation renders the offence non-existent… It is only natural that each
should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is
therefore a case of concurrent jurisdiction.”
Customary International Law
The Lotus case gave an important dictum on creating customary international law. France had
alleged that jurisdictional questions on collision cases are rarely heard in criminal cases,
because States tend to prosecute only before the flag State. France argued that this absence
of prosecutions points to a positive rule in customary law on collisions. The Court disagreed
and held that, this:
“…would merely show that States had often, in practice, abstained from instituting criminal
proceedings, and not that they recognized themselves as being obliged to do so; for only if
such abstention were based on their being conscious of having a duty to abstain would it be
possible to speak of an international custom. The alleged fact does not allow one to infer that
States have been conscious of having such a duty; on the other hand, as will presently be
seen, there are other circumstances calculated to show that the contrary is true.”
In other words, opinio juris is reflected not only in acts of States (Nicaragua Case), but also in
omissions when those omissions are made following a belief that the said State is obligated by
law to refrain from acting in a particular way.
NICARAGUA V. UNITED STATES
The Republic of Nicaragua v. The United States of America (1986)[2] was a case where the
International Court of Justice (ICJ) held that the U.S. had violated international law by
supporting the Contras in their rebellion against the Sandinistas and by mining Nicaragua's
harbors. The case was decided in favor of Nicaragua and against the United States with the
awarding of reparations to Nicaragua.
The Court had 15 final decisions upon which it voted. The Court found in its verdict that the
United States was "in breach of its obligations under customary international law not to use
force against another State", "not to intervene in its affairs", "not to violate its sovereignty", "not
to interrupt peaceful maritime commerce", and "in breach of its obligations under Article XIX of
the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua
on 21 January 1956." In Statement 9, the Court stated that while the U.S. encouraged
human rights violations by the Contras by the manual entitled Psychological Operations in
Guerrilla Warfare, this did not make such acts attributable to the U.S.[3]
The United States refused to participate in the proceedings, arguing that the ICJ lacked
jurisdiction to hear the case. The U.S. also blocked enforcement of the judgment by the United
Nations Security Council and thereby prevented Nicaragua from obtaining any compensation.[4]
Nicaragua, under the later, post-FSLN government of Violeta Chamorro, withdrew the
complaint from the court in September 1992 following a repeal of the law which had required
the country to seek compensation.[5]
Background and history of US intervention in Nicaragua
The first armed intervention by the United States in Nicaragua occurred under President Taft.
In 1909, he ordered the overthrow of Nicaraguan President José Santos Zelaya. During
August and September 1912, a contingent of 2,300 U.S. Marines landed at the port of Corinto
and occupied León and the railway line to Granada. A pro-U.S. government was formed under
the occupation. The 1914 Bryan–Chamorro Treaty granted perpetual canal rights to the U.S. in
Nicaragua and was signed ten days before the U.S.-operated Panama Canal opened for use,
thus preventing anyone from building a competing canal in Nicaragua without U.S. permission.
[6]
In 1927, under Augusto César Sandino, a major peasant uprising was launched against both
the U.S. occupation and the Nicaraguan establishment. In 1933, the Marines withdrew and left
the Nicaraguan National Guard in charge of internal security and elections. In 1934, Anastasio
Somoza García, the head of the National Guard, ordered his forces to capture and murder
Sandino. In 1937, Somoza assumed the presidency, while still in control of the National Guard,
and established a dictatorship that his family controlled until 1979.[7]
The downfall of the regime is attributed to its embezzlement of millions of dollars in foreign aid
that was given to the country in response to the devastating 1972 earthquake. Many moderate
supporters of the dictatorship began abandoning it in the face of growing revolutionary
sentiment. The Sandinista (FSLN) movement organized relief, began to expand its influence
and assumed the leadership of the revolution.[8] A popular uprising brought the FSLN to power
in 1979. The United States had long been opposed to the socialist FSLN, and after the
revolution the Carter administration moved quickly to support the Somocistas with financial and
material aid. When Ronald Reagan took office, he augmented the direct support to an anti-
Sandinista group, called the Contras, which included factions loyal to the former dictatorship.
When Congress prohibited further funding to the Contras, Oliver North continued the funding
through arms sales that were also prohibited by Congress.
Nicaragua's submissions
Nicaragua charged:
(a) That the United States, in recruiting, training, arming, equipping, financing, supplying and
otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in
and against Nicaragua, had violated its treaty obligations to Nicaragua under:
 Article 2 (4) of the United Nations Charter;
 Articles 18 and 20 of the Charter of the Organization of American States;
 Article 8 of the Convention on the Rights and Duties of States;
 Article I, Third, of the Convention concerning the Duties and Rights of States in the
Event of Civil Strife.
(b) That the United States had breached customary international law by
1. violating the sovereignty of Nicaragua by:
 armed attacks against Nicaragua by air, land and sea;
 incursions into Nicaraguan territorial waters;
 aerial trespass into Nicaraguan airspace;
3|PUBLICINTERNATIONALLAW
  efforts by direct and indirect means to coerce and intimidate the Government of
Nicaragua.
2. using force and the threat of force against Nicaragua.
3. intervening in the internal affairs of Nicaragua.
4. infringing upon the freedom of the high seas and interrupting peaceful maritime commerce.
5. killing, wounding and kidnapping citizens of Nicaragua.
Nicaragua demanded that all such actions cease and that the United States had an obligation
to pay reparations to the government for damage to their people, property, and economy.
It is noteworthy that the United States, the respondent party, was the only member that put
forward arguments against the validity of the judgment of the court, arguing that it passed a
decision that it "had neither the jurisdiction nor the competence to render." Members that sided
with the United States in opposing Nicaragua's claims did not challenge the court's jurisdiction,
its findings, nor the substantive merits of the case.
Judgment
The lengthy judgment first listed 291 points, among them that the United States had been
involved in the "unlawful use of force". The violations included attacks on Nicaraguan facilities
and naval vessels, the mining of Nicaraguan ports, the invasion of Nicaraguan air space, and
the training, arming, equipping, financing and supplying of forces (the "Contras") and seeking
to overthrow Nicaragua's Sandinista government. This was followed by the statements that the
judges voted on.[11]
Findings
The court found evidence of an arms flow between Nicaragua and insurgents in El Salvador
between 1979 and 1981. However, there was not enough evidence to show that the
Nicaraguan government was imputable for this or that the US response was proportional. The
court also found that certain transborder incursions into the territory of Guatemala and Costa
Rica, in 1982, 1983 and 1984, were imputable to the Government of Nicaragua. However,
neither Guatemala nor Costa Rica had made any request for US intervention; El Salvador did
in 1984, well after the US had intervened unilaterally.
"As regards El Salvador, the Court considers that in customary international law the provision
of arms to the opposition in another State does not constitute an armed attack on that State.
As regards Honduras and Costa Rica, the Court states that, in the absence of sufficient
information as to the transborder incursions into the territory of those two States from
Nicaragua, it is difficult to decide whether they amount, singly or collectively, to an armed
attack by Nicaragua. The Court finds that neither these incursions nor the alleged supply of
arms may be relied on as justifying the exercise of the right of collective self-defence."
Regarding human rights violations by the Contras, "The Court has to determine whether the
relationship of the contras to the United States Government was such that it would be right to
equate the Contras, for legal purposes, with an organ of the United States Government, or as
acting on behalf of that Government. The Court considers that the evidence available to it is
insufficient to demonstrate the total dependence of the Contras on United States aid. A partial
dependency, the exact extent of which the Court cannot establish, may be inferred from the
fact that the leaders were selected by the United States, and from other factors such as the
organisation, training and equipping of the force, planning of operations, the choosing of
targets and the operational support provided. There is no clear evidence that the United States
actually exercised such a degree of control as to justify treating the contras as acting on its
behalf... Having reached the above conclusion, the Court takes the view that the Contras
remain
responsible for their acts, in particular the alleged violations by them of humanitarian law. For
the United States to be legally responsible, it would have to be proved that that State had
effective control of the operations in the course of which the alleged violations were
committed."
The Court concluded that the United States, despite its objections, was subject to the Court's
jurisdiction. The Court had ruled on November 26, 1984 by 11 votes to one that it had
jurisdiction in the case on the basis of either Article 36 of the Statute of the International Court
of Justice (i.e. compulsory jurisdiction) or the 1956 Treaty of Friendship, Commerce and
Navigation between the United States and Nicaragua. The Charter provides that, in case of
doubt, it is for the Court itself to decide whether it has jurisdiction, and that each member of the
United Nations undertakes to comply with the decision of the Court. The Court also ruled by
unanimity that the present case was admissible.[13] The United States then announced that it
had "decided not to participate in further proceedings in this case." About a year after the
Court's jurisdictional decision, the United States took the further, radical step of withdrawing its
consent to the Court's compulsory jurisdiction, ending its previous 40 year legal commitment to
binding international adjudication. The Declaration of acceptance of the general compulsory
jurisdiction of the International Court of Justice terminated after a 6-month notice of termination
delivered by the Secretary of State to the United Nations on October 7, 1985.
Although the Court called on the United States to "cease and to refrain" from the unlawful use
of force against Nicaragua and stated that the US was "in breach of its obligation under
customary international law not to use force against another state" and ordered it to pay
reparations, the United States refused to comply.[15] As a permanent member of the Security
Council, the U.S. has been able to block any enforcement mechanism attempted by
Nicaragua.[16] On November 3, 1986 the United Nations General Assembly passed, by a vote
of 94-3 (El Salvador, Israel and the US voted against), a non-binding [17] resolution urging the
US to comply.
The Ruling
On June 27, 1986, the Court made the following ruling:
The Court:
1. Decides that in adjudicating the dispute brought before it by the Application filed by the
Republic of Nicaragua on 9 April 1984, the Court is required to apply the "multilateral
treaty reservation" contained in proviso (c) to the declaration of acceptance of jurisdiction
made under Article 36, paragraph 2, of the Statute of the Court by the Government of the
United States of America deposited on 26 August 1946;
2. Rejects the justification of collective self-defense maintained by the United States of
America in connection with the military and paramilitary activities in and against
Nicaragua the subject of this case;
3. Decides that the United States of America, by training, arming, equipping, financing and
supplying the contra forces or otherwise encouraging, supporting and aiding military and
paramilitary activities in and against Nicaragua, has acted, against the Republic of
Nicaragua, in breach of its obligation under customary international law not to
intervene in the affairs of another State;
4. Decides that the United States of America, by certain attacks on Nicaraguan territory in
1983–1984, namely attacks on Puerto Sandino on 13 September and 14 October 1983,
an attack on Corinto on 10 October 1983; an attack on Potosi Naval Base on 4/5 January
1984, an attack on San Juan del Sur on 7 March 1984; attacks on patrol boats at Puerto
Sandino on 28 and 30 March 1984; and an attack on San Juan del Norte on 9 April 1984;
4|PUBLICINTERNATIONALLAW
and further by those acts of intervention referred to in subparagraph (3) hereof
which

5|PUBLICINTERNATIONALLAW
 involve the use of force, has acted, against the Republic of Nicaragua, in breach of its Legal clarification and importance
obligation under customary international law not to use force against another State;
5. Decides that the United States of America, by directing or authorizing overflights of
Nicaraguan territory, and by the acts imputable to the United States referred to in
subparagraph (4) hereof, has acted, against the Republic of Nicaragua, in breach of its
obligation under customary international law not to violate the sovereignty of
another State;
6. Decides that, by laying mines in the internal or territorial waters of the Republic of
Nicaragua during the first months of 1984, the United States of America has acted,
against the Republic of Nicaragua, in breach of its obligations under customary
international law not to use force against another State, not to intervene in its
affairs, not to violate its sovereignty and not to interrupt peaceful maritime
commerce;
7. Decides that, by the acts referred to in subparagraph (6) hereof the United States of
America has acted, against the Republic of Nicaragua, in breach of its obligations under
Article XIX of the Treaty of Friendship, Commerce and Navigation between the United
States of America and the Republic of Nicaragua signed at Managua on 21 January
1956;
8. Decides that the United States of America, by failing to make known the existence and
location of the mines laid by it, referred to in subparagraph (6) hereof, has acted in breach
of its obligations under customary international law in this respect;
9. Finds that the United States of America, by producing in 1983 a manual entitled
'Operaciones sicológicas en guerra de guerrillas', and disseminating it to Contra forces,
has encouraged the commission by them of acts contrary to general principles of
humanitarian law; but does not find a basis for concluding that any such acts which may
have been committed are imputable to the United States of America as acts of the United
States of America;
10. Decides that the United States of America, by the attacks on Nicaraguan territory referred
to in subparagraph (4) hereof, and by declaring a general embargo on trade with
Nicaragua on 1 May 1985, has committed acts calculated to deprive of its object and
purpose the Treaty of Friendship, Commerce and Navigation between the Parties signed
at Managua on 21 January 1956;
11. Decides that the United States of America, by the attacks on Nicaraguan territory referred
to in subparagraph (4) hereof, and by declaring a general embargo on trade with
Nicaragua on 1 May 1985, has acted in breach of its obligations under Article XIX of the
Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua
on 21 January 1956;
12. Decides that the United States of America is under a duty immediately to cease and to
refrain from all such acts as may constitute breaches of the foregoing legal obligations;
13. Decides that the United States of America is under an obligation to make reparation to the
Republic of Nicaragua for all injury caused to Nicaragua by the breaches of obligations
under customary international law enumerated above;
14. Decides that the United States of America is under an obligation to make reparation to the
Republic of Nicaragua for all injury caused to Nicaragua by the breaches of the Treaty of
Friendship, Commerce and Navigation between the Parties signed at Managua on 21
January 1956;
15. Decides that the form and amount of such reparation, failing agreement between the
Parties, will be settled by the Court, and reserves for this purpose the subsequent
procedure in the case;
16. Recalls to both Parties their obligation to seek a solution to their disputes by peaceful
means in accordance with international law.
6|PUBLICINTERNATIONALLAW
The ruling did in many ways clarify issues surrounding prohibition of the use of force and the
right of self-defence. Arming and training the Contra was found to be in breach with principles
of non-intervention and prohibition of use of force, as was laying mines in Nicaraguan
territorial waters.
Nicaragua's dealings with the armed opposition in El Salvador, although it might be
considered a breach with the principle of non-intervention and the prohibition of use of force,
did not constitute "an armed attack", which is the wording in article 51 justifying the right of
self-defence.
The Court considered also the United States claim to be acting in collective self-defence of El
Salvador and found the conditions for this not reached as El Salvador never requested the
assistance of the United States on the grounds of self-defence.
In regards to laying mines, "...the laying of mines in the waters of another State without any
warning or notification is not only an unlawful act but also a breach of the principles of
humanitarian law underlying the Hague Convention No. VIII of 1907."
ASYLUM CASE: COLOMBIA V.
PERU
Doctrine: The Court also clarified that for custom to be definitively proven, it must be
continuously and uniformly executed.
INTRODUCTION: Asylum, this concept can be traced a long way back, and we can say that
there will be a difference between the concept of asylum then and asylum now, but the basic
idea of asylum will remain the same. Asylum in simple terms can be called Refugee. In other
words, when a person seeks to avail the of protection and security in another country and
they have fear of any injury in their habitual country, then we can say that he is said to have
requested asylum. We can say that it is Political protection given to those people, and there is
a condition that those countries will not torture, imprison or violate any human rights against
the individual who is at risk.

In the landmark case “Colombia v. Peru” case, also known as the Asylum case, the question
of political or diplomatic asylum had raised, and during the time of this case, international law
was in its earlier phase, and this case would have made a huge impact in the formulating of
International Law.

FACTS: On 3rd October 1948, a military insurgency broke out in the South American state of
Peru. However, the revolution has put an end to within a day and the accused were arrested
and charged. A day after, proceedings were put in motion against Victor Raul Haye De La
Torre, a leader of an opposition party, ‘American citizens’, and the charges were on them to
direct and haggle the rebellions. The absconding arrest of Haye De La Torre distort Peruvian
authorities who were eager to bring him on trial. This was actively chased by the Military junta
government.

However, on 4th January 1949, the Peruvian authorities got the news that Victor Haye De La
Torre had been granted Asylum by the Colombian Mission in Lima. The Colombian
ambassador had also requested that the right of passage or a safe-conduct should be
granted to De la Tore so that he may leave the country. Here Peru refused this request which
was made by the Colombian ambassador, as De La Torre was accused of common crimes,
he should not get the protection of political asylum, Peru also refused the claim of political
refugee which was given to De La Torre of political refugee.

7|PUBLICINTERNATIONALLAW
This led to a diplomatic and political standoff developed between the two South American
states. On 31st August 1949 IN Lima a diplomatic correspondence was developed and signed
by both countries’ governments which agreed to submit the case to the international court of
Justice.
ISSUES:
 Is the country Colombia, competent to grant asylum, to unilaterally qualify the
offense for the purpose of asylum under a treaty and international law?
 In this case, was as the territorial state Peru bound to give a guarantee of safe
passage?
 Did Colombia violate Articles 1 and 2(2) of the Havana convention,1928, which
summarize general respect for the state on its decision to grant asylum without any
qualifications?
Peru, in the counterclaim, asserted that asylum granted to Victor De La Torre was against the
rules and also a direct violation of The Havana Convention on the asylum of 1928.
Firstly, this was because, under this convention, there is a concept that political asylum could
be granted to political offenders, and Victor De La Torre was charged with an ordinary crime,
not with any political offense.
Secondly, Peru asserted that this convention expressly states that a demanding insistence of
immediate danger was required in every entreaty of asylum, which was clearly missing in this
case.
JUDGEMENT: The International Court of Justice in its examination rejected the first
submission made by the Republic of Colombia by fourteen votes to two judges Azevedo and
M.caicedo. Also, The Republic of Colombia had submitted the Havana Convention of 1928,
the Bolivarian agreement, and the Montevideo Convention of 1933 referring to the principle i.e
“institution of asylum in accordance with principles of International law,”.
Firstly, the hon’ble court held that the Bolivarian agreement which was mentioned by the
Republic of Colombia is the treaty on extradition. Here, the concept of asylum is confined to a
single article. As the conclusion related to diplomatic asylum is not possible to conclude
because the Bolivarian agreement laid rules for extradition and the concept of extradition and
asylum are contradictory.
Secondly, the Havana Convention on Asylum of, 1928 was mentioned by the Republic of
Colombia. The Hon’ble International Court of Justice held that the power to grant shelter or
admit any existence is not given to any nation-state by any treaty, whether implicitly or
explicitly. The Hon’ble International Court of Justice, Regarding the Montevideo Convention of
1933 held that this Convention cannot be used to foster the argument as Peru had not verified
the agreement and any decision had been made grounded on that agreement would not be
made binding on a country which has not verified the agreement.
Eventually, Colombia had submitted with regard to American international law, that a general
custom existed to grant shelter in Pan America unrepressed of any qualifications. They further
claimed that therein arises the obligation of other countries to admire similar qualifications of
asylum as the veritable base of granting asylum embedded in the traditional practice of
American law.
The data submitted to the court bared too important contradiction and change to make it
possible to discern therein an operation peculiar to Latin America and accepted as law.
Colombia’s substation of the actuality of such a custom was riddled with inconsistencies and
lack of uniformity which reduced the credibility of such a custom as a source of international
law. Colombia, granting asylum wasn’t competent to qualify the nature of the offense by a
unilateral and definitive decision binding on Peru and this was rejected by Justice Caicedo by
fifteen votes to one.
The Hon’ble court stated that according to Article 1 of the Havana Convention on the asylum of
1928 in which the state of Colombia said that asylum cannot be granted to those accused of
ordinary, common crimes. Victor Haye de la Torre, was a political offender, not a common
criminal because the charge was of military rebellion which was not a common crime. The
Hon’ble court rejected the counterclaim of Peru declaring it ill-found by a vote of fifteen votes to
one. The ICJ analyzed the facts of the case, there was 3 months gap between the grant of
asylum and military rebellion and there was no question for protecting Haye de la Torre against
his irresponsible action and having to face legal proceedings.
The Havana Convention was not created to shield a citizen from regular legal proceedings
after they had conspired against their nation’s institutions. Being charged with a political crime
did not automatically qualify someone for asylum, instead, asylum could only be utilized for the
execution of justice. It had not been demonstrated that the circumstances in Peru at the time
warranted the repeal of judicial protections or the subordination of justice to the government.
Furthermore, The Havana convention was unable to provide a legislative framework that would
grant those charged with political crimes the right to evade their country of residence. Given
that it should be thought that revolutionary events interfere with the administration of justice,
the convention at Havana would have been particularly offensive and charged with political
crimes during revolutionary events.
In its concluding and succinct ruling, the international court of Justice stated that “to infer…an
obligation to surrender a person to whom asylum has been irregularly granted would be to
disregard both the rules of the extra-legal factors involved in the development of asylum in
Latin America and the spirit of the Havana convention.”
CONCLUSION: Professor Oppenheim provides the most up-to-date and definitive definition of
asylum, stating that “The so-called right of asylum is nothing but the competence of every
State to allow a prosecuted alien to enter and to remain on its territory under its protection and
thereby to grant asylum to him.” This is the definition that Professor Oppenheim offers. The
main issue was that the Colombian government gave asylum to a Peruvian citizen, Haye De
La Torre, in its embassy. Lastly, it was made in favor of a counter-claim submitted by Peru and
here according to the Havana convention. The Court concluded that the grant of asylum and
the reasons for its prolongation were not in conformity with Article 2(2) of the Havana
Convention. “The grant of asylum is not an instantaneous act which terminates with the
admission, at a given moment of a refugee to an embassy or a legation.
COMFORT WOMEN CASE: VINUYA ET AL. V. EXECUTIVE SECRETARY
(G.R. NO. 162230; APRIL 28, 2010)
Petitioners Vinuya, et. al. filed a Petition for Certiorari under Rule 65 of the Rules of Court with
an application for the issuance of a writ of preliminary mandatory injunction against the Office
8|PUBLICINTERNATIONALLAW
of

9|PUBLICINTERNATIONALLAW
the Executive Secretary (Alberto Romulo), the Secretary of the Department of Foreign Affairs
(DFA), the Secretary of the Department of Justice (DOJ), and the Office of the Solicitor
General (OSG).
Facts: Petitioners are all members of MALAYA LOLAS.
MALAYA LOLAS is a non-stock, non-profit organization registered with the Securities and
Exchange Commission, established for the purpose of providing aid to the victims of rape by
Japanese military forces in the Philippines during the Second World War.
Petitioners claim that since 1998, they have approached the Executive Department through
the DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese officials
and military officers who ordered the establishment of the "comfort women" stations in the
Philippines.
However, officials of the Executive Department declined to assist the petitioners.
Said officials contended that the individual claims of the comfort women for compensation had
already been fully satisfied by Japan's compliance with the Peace Treaty between the
Philippines and Japan.
Issues:
WON the Executive Department committed grave abuse of discretion in not espousing
petitioners’ claims for:
(a) the crimes against humanity and war crimes committed against them;
(b) for official apology; and
(c) other forms of reparations against Japan before the International Court of Justice
(ICJ) and other international tribunals
Ruling: NO
The petition lacks merit.
From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to
determine whether to espouse petitioners' claims against Japan.
The question whether the Philippine government should espouse claims of its nationals
against a foreign government is a foreign relations matter, the authority for which is
demonstrably committed by our Constitution not to the courts but to the political branches.
In this case, the Executive Department has already decided that it is to the best interest of the
country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace
of 1951. The wisdom of such decision is not for the courts to question. Neither could
petitioners herein assail the said determination by the Executive Department via the instant
petition for certiorari.
The Executive Department has determined that taking up petitioners' cause would be inimical
to our country's foreign policy interests, and could disrupt our relations with Japan, thereby
creating serious implications for stability in this region. For us to overturn the Executive
Department's determination would mean an assessment of the foreign policy judgments by a
coordinate political branch to which authority to make that judgment has been constitutionally
committed.
The Executive must be given ample discretion to assess the foreign policy considerations of
espousing a claim against Japan, from the standpoint of both the interests of the petitioners
and those of the Republic, and decide on that basis if apologies are sufficient, and whether
further steps are appropriate or necessary.
The Philippines is not under any international obligation to espouse petitioners' claims.
We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible
as well as legally prohibited under contemporary international law. However, petitioners take
quite a theoretical leap in claiming that these proscriptions automatically imply that that the
Philippines is under a non-derogable obligation to prosecute international crimes, particularly
since petitioners do not demand the imputation of individual criminal liability, but seek to
recover monetary reparations from the state of Japan. Absent the consent of states, an
applicable treaty regime, or a directive by the Security Council, there is no non-derogable duty
to institute proceedings against Japan. Indeed, precisely because of states' reluctance to
directly prosecute claims against another state, recent developments support the modern trend
to empower individuals to directly participate in suits against perpetrators of international
crimes. Nonetheless, notwithstanding an array of General Assembly resolutions calling for the
prosecution of crimes against humanity and the strong policy arguments warranting such a
rule, the practice of states does not yet support the present existence of an obligation to
prosecute international crimes. Of course a customary duty of prosecution is ideal, but we
cannot find enough evidence to reasonably assert its existence. To the extent that any state
practice in this area is widespread, it is in the practice of granting amnesties, immunity,
selective prosecution, or de facto impunity to those who commit crimes against humanity.
Even the invocation of jus cogens norms and erga omnes obligations will not alter this
analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes committed by the Japanese army violated
jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to
prosecute perpetrators of international crimes is an erga omnes obligation or has attained the
status of jus cogens.
Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to
comprehend the unimaginable horror they underwent at the hands of the Japanese soldiers.
We are also deeply concerned that, in apparent contravention of fundamental principles of law,
the petitioners appear to be without a remedy to challenge those that have offended them
before appropriate fora. Needless to say, our government should take the lead in protecting its
citizens against violation of their fundamental human rights.
Regrettably, it is not within our power to order the Executive Department to take up the
petitioners' cause. Ours is only the power to urge and exhort the Executive Department to take
up petitioners' cause.
WHEREFORE, the Petition is hereby DISMISSED.
10 | P U B L I C I N T E R N A T I O N A L L A W
Additional Notes: PEOPLES

 Political Questions: refer "to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of
the government. It is concerned with issues dependent upon the wisdom, not legality
of a particular measure."
 Foreign Relations: The President is the sole organ of the nation in its external
relations, and its sole representative with foreign relations.
 Jus Cogens: (Literally, "compelling law") in international law, this term refers to
norms that command peremptory authority, superseding conflicting treaties and
custom.
 Jus cogens norms are considered peremptory in the sense that they are mandatory,
do not admit derogation, and can be modified only by general international norms of
equivalent authority.
 Erga Omnes: (Latin: in relation to everyone) in international law, it has been used as
a legal term describing obligations owed by States towards the community of states
as a whole.

PROVINCE OF NORTH COTABATO VS. GOVERNMENT OF THE REPUBLIC OF THE

PHILIPPINES
G.R. No. 183591 October 14 2008

FACTS: On August 5, 2008, the Government of the Republic of the Philippines and the Moro
Islamic Liberation Front (MILF) were scheduled to sign a Memorandum of Agreement of the
Ancestral Domain Aspect of the GRP – MILF Tripoli Agreement on Peace of 2001 in Kuala
Lumpur, Malaysia.

Invoking the right to information on matters of public concern, the petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of the MA-AD and to
prohibit the slated signing of the MOA-AD and the holding of public consultation thereon. They
also pray that the MOA-AD be declared unconstitutional. The Court issued a TRO enjoining
the GRP from signing the same.

ISSUES:

1. Whether or not the constitutionality and the legality of the MOA is ripe for
adjudication;
2. Whether or not there is a violation of the people’s right to information on matters of
public concern (Art 3 Sec. 7) under a state policy of full disclosure of all its
transactions involving public interest (Art 2, Sec 28) including public consultation
under RA 7160 (Local Government Code of 1991)
3. Whether or not the signing of the MOA, the Government of the Republic of the
Philippines would be binding itself;
(a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate
state, or a juridical, territorial or political subdivision not recognized by law;
(b) to revise or amend the Constitution and existing laws to conform to the MOA;

(c) to concede to or recognize the claim of the Moro Islamic Liberation Front for
ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS

11 | P U B L I C I N T E R N A T I O N A L L A W
 RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter
VII (DELINEATION,RECOGNITION OF ANCESTRAL DOMAINS)

HELD:

1. Yes, the petitions are ripe for adjudication. The failure of the respondents to consult the
local government units or communities affected constitutes a departure by respondents
from their mandate under EO No. 3. Moreover, the respondents exceeded their authority
by the mere act of guaranteeing amendments to the Constitution. Any alleged violation of
the Constitution by any branch of government is a proper matter for judicial review.

As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention
and intervening respondents the requisite locus standi in keeping with the liberal stance
adopted in David v. Macapagal- Arroyo.

In Pimentel, Jr. v. Aguirre, this Court HELD:

x x x [B]y the mere enactment of the questioned law or the approval of the challenged
action, the dispute is said to have ripened into a judicial controversy even without any
other overt act. Indeed, even a singular violation of the Constitution and/or the law is
enough to awaken judicial duty.x x x x

By the same token, when an act of the President, who in our constitutional scheme is a
coequal of Congress, is seriously alleged to have infringed the Constitution and the laws
x x x settling the dispute becomes the duty and the responsibility of the courts.

That the law or act in question is not yet effective does not negate ripeness.

2. Yes. The Court finds that there is a grave violation of the Constitution involved in the
matters of public concern (Sec 7 Art III) under a state policy of full disclosure of all its
transactions involving public interest (Art 2, Sec 28) including public consultation under
RA 7160 (Local Government Code of 1991).

(Sec 7 ArtIII) The right to information guarantees the right of the people to demand
information, while Sec 28 recognizes the duty of officialdom to give information even if
nobody demands. The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-
executory nature, subject only to reasonable safeguards or limitations as may be
provided by law.

The contents of the MOA-AD is a matter of paramount public concern involving public
interest in the highest order. In declaring that the right to information contemplates steps
and negotiations leading to the consummation of the contract, jurisprudence finds no
distinction as to the executory nature or commercial character of the agreement.

E.O. No. 3 itself is replete with mechanics for continuing consultations on both national
and local levels and for a principal forum for consensus-building. In fact, it is the duty of
the Presidential Adviser on the Peace Process to conduct regular dialogues to seek
relevant information, comments, advice, and recommendations from peace partners and
concerned sectors of society.

12 | P U B L I C I N T E R N A T I O N A L L A W
3. (a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or
a juridical, territorial or political subdivision not recognized by law;
Yes. The provisions of the MOA indicate, among other things, that the Parties aimed
to vest in the BJE the status of an associated state or, at any rate, a status closely
approximating it. The concept of association is not recognized under the present
Constitution.
No province, city, or municipality, not even the ARMM, is recognized under our laws
as having an “associative” relationship with the national government. Indeed, the
concept implies powers that go beyond anything ever granted by the Constitution to
any local or regional government. It also implies the recognition of the associated
entity as a state. The Constitution, however, does not contemplate any state in this
jurisdiction other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for independence.
The BJE is a far more powerful entity than the autonomous region recognized in the
Constitution. It is not merely an expanded version of the ARMM, the status of its
relationship with the national government being fundamentally different from that of
the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state
laid down in the Montevideo Convention, namely, a permanent population, a defined
territory, a government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion
of Philippine territory, the spirit animating it – which has betrayed itself by its use of
the concept of association – runs counter to the national sovereignty and territorial
integrity of the Republic.
The defining concept underlying the relationship between the national government
and the BJE being itself contrary to the present Constitution, it is not surprising that
many of the specific provisions of the MOA-AD on the formation and powers of the
BJE are in conflict with the Constitution and the laws. The BJE is more of a state
than an autonomous region. But even assuming that it is covered by the term
“autonomous region” in the constitutional provision just quoted, the MOA-AD would
still be in conflict with it.
(b) to revise or amend the Constitution and existing laws to conform to the MOA:
The MOA-AD provides that “any provisions of the MOA-AD requiring amendments to
the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal
framework,” implying an amendment of the Constitution to accommodate the MOA-
AD. This stipulation, in effect, guaranteed to the MILF the amendment of the
Constitution .
It will be observed that the President has authority, as stated in her oath of office,
only to preserve and defend the Constitution. Such presidential power does not,
however, extend to allowing her to change the Constitution, but simply to recommend
proposed amendments or revision. As long as she limits herself to recommending
these changes
and submits to the proper procedure for constitutional amendments and revision, her
mere recommendation need not be construed as an unconstitutional act.
The “suspensive clause” in the MOA-AD viewed in light of the above-discussed
standards.
Given the limited nature of the President’s authority to propose constitutional
amendments, she cannot guarantee to any third party that the required amendments
will eventually be put in place, nor even be submitted to a plebiscite. The most she
could do is submit these proposals as recommendations either to Congress or the
people, in whom constituent powers are vested.
(c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral
domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS
ACT OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION,RECOGNITION
OF ANCESTRAL DOMAINS)
This strand begins with the statement that it is “the birthright of all Moros and all
Indigenous peoples of Mindanao to identify themselves and be accepted as
‘Bangsamoros.’” It defines “Bangsamoro people” as the natives or original inhabitants
of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at
the time of conquest or colonization, and their descendants whether mixed or of full
blood, including their spouses.
Thus, the concept of “Bangsamoro,” as defined in this strand of the MOA-AD,
includes not only “Moros” as traditionally understood even by Muslims, but all
indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that the
freedom of choice of indigenous peoples shall be respected. What this freedom of
choice consists in has not been specifically defined. The MOA-AD proceeds to refer
to the “Bangsamoro homeland,” the ownership of which is vested exclusively in the
Bangsamoro people by virtue of their prior rights of occupation. Both parties to the
MOA-AD acknowledge that ancestral domain does not form part of the public
domain.
Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for
clear- cut procedure for the recognition and delineation of ancestral domain, which
entails, among other things, the observance of the free and prior informed consent of
the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does
not grant the Executive Department or any government agency the power to
delineate and recognize an ancestral domain claim by mere agreement or
compromise.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all
national offices to conduct consultations beforeany project or program critical to the
environment and human ecology including those that may call for the eviction of a
particular group of people residing in such locality, is implemented therein. The MOA-
AD is one peculiar program that unequivocally and unilaterally vests ownership of a
vast territory to the Bangsamoro people, which could pervasively and drastically
result to the diaspora or displacement of a great number of inhabitants from their total
environment.
13 | P U B L I C I N T E R N A T I O N A L L A W
CONCLUSION: In sum, the Presidential Adviser on the Peace Process committed grave immovable property situated in the territory of the receiving state which the envoy holds on
abuse of discretion when he failed to carry out the pertinent consultation process, as behalf of the
mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive
process by which the MOA-AD was designed and crafted runs contrary to and in excess of the
legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic
exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform
the duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship
envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes
that the associated entity is a state and implies that the same is on its way to independence.

HOLY SEE v. DEL ROSARIO (G.R. NO. 101949 DEC. 1, 1994)

FACTS: This petition arose from a controversy over a parcel of land, Lot 5-A, located in the
Municipality of Parañaque, Metro Manila and registered in the name of petitioner. Said Lot 5-A
is contiguous to Lots 5-B and 5-D registered in the name of the Philippine Realty Corporation
(PRC). The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting
as agent to the sellers. Later, Licup assigned his rights to the sale to private respondent,
Starbright Enterprises.

The squatters refused to vacate the lots sold to private respondent so a dispute arose as to
who of the parties has the responsibility of evicting and clearing the land of squatters occurred.
Complicating the relations of the parties was the sale by petitioner of Lot 5-A to Tropicana
Properties and Development Corporation (Tropicana).

Private respondent filed a complaint for annulment of the sale of the three parcels of land, and
specific performance and damages against petitioner, represented by the Papal Nuncio, and
three other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana.

ISSUE: Whether or not the petitioner Holy See is immune from suit.

RULING: YES.

The logical question is whether the foreign state is engaged in the activity in the regular course
of business. If the foreign state is not engaged regularly in a business or trade, the particular
act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign
activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken
for gain or profit.

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation
was made not for commercial purpose, but for the use of petitioner to construct thereon the
official place of residence of the Papal Nuncio.

The right of a foreign sovereign to acquire property, real or personal, in a receiving state,
necessary for the creation and maintenance of its diplomatic mission, is recognized in the
1961 Vienna Convention on Diplomatic Relations.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action relating to private
14 | P U B L I C I N T E R N A T I O N A L L A W
sending state for the purposes of the mission. If this immunity is provided for a diplomatic
envoy, with all the more reason should immunity be recognized as regards the sovereign 1) Won Grace Poe is a natural born citizen of the philippines
itself, which in this case is the Holy See.

POE-LLAMANZARES v. COMELEC et al. (G.R. NOS. 221698-

700)

FACTS : Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a

newborn infant in the Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3
September 1968. Parental care and custody over petitioner was passed on by Edgardo to his
relatives, Emiliano Militar (Emiliano) and his wife. When petitioner was five (5) years old,
celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora Poe
(a.k.a. Susan Roces) filed a petition for her adoption with the Municipal Trial Court (MTC) of
San Juan City. Having reached the age of eighteen (18) years in 1986, petitioner registered
as a voter with the local COMELEC Office in San Juan City. On 4 April 1988, petitioner
applied for and was issued Philippine Passport. On 27 July 1991, petitioner married Teodoro
Misael Daniel
V. Llamanzares (Llamanzares), a citizen of both the Philippines and the U.S., at Sanctuario
de San Jose Parish in San Juan City. Desirous of being with her husband who was then
based in the U.S., the couple flew back to the U.S. two days after the wedding ceremony or
on 29 July 1991. On 8 April 2004, the petitioner came back to the Philippines together with
Hanna to support her father’s candidacy for President in the May 2004 elections. She
returned to the U.S. with her two daughters on 8 July 2004. After a few months, specifically on
13 December 2004, petitioner rushed back to the Philippines upon learning of her father’s
deteriorating medical condition. Her father slipped into a coma and eventually expired. The
petitioner stayed in the country until 3 February 2005 to take care of her father’s funeral
arrangements as well as to assist in the settlement of his estate. The couple began preparing
for their resettlement including notification of their children’s schools that they will be
transferring to Philippine schools for the next semester. coordination with property movers for
the relocation of their household goods, furniture and cars from the U.S. to the Philippines;
and inquiry with Philippine authorities as to the proper procedure to be followed in bringing
their pet dog into the country. As early as 2004, the petitioner already quit her job in the U.S.
In late March 2006, petitioner’s husband officially informed the U.S. Postal Service of the
family’s change and abandonment of their address in the U.S. On 7 July 2006, petitioner took
her Oath of Allegiance to the Republic of the Philippines pursuant to Republic Act (R.A.) No.
9225 or the Citizenship Retention and Re-acquisition Act of 2003. Again, petitioner registered
as a voter of Barangay Santa Lucia, San Juan City on 31 August 2006.40 She also secured
from the DFA a new Philippine Passport bearing the No. XX4731999. On 6 October 2010,
President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie and
Television Review and Classification Board (MTRCB). On 12 July 2011, the petitioner
executed before the Vice Consul of the U.S. Embassy in Manila an “Oath/Affirmation of
Renunciation of Nationality of the United States.”. On 9 December 2011, the U.S. Vice Consul
issued to petitioner a “Certificate of Loss of Nationality of the United States” effective 21
October 2010. On 15 October 2015, petitioner filed her COC for the Presidency for the May
2016 Elections. Petitioner’s filing of her COC for President in the upcoming elections triggered
the filing of several COMELEC cases against her which were the subject of these
consolidated cases.Petitioner’s claim that she will have been a resident for ten (10) years and
eleven (11) months on the day before the 2016 elections.

ISSUES:
15 | P U B L I C I N T E R N A T I O N A L L A W
 2) Won Grace Poe satisfy the residency requirements as mandated by the constitution
HELD :
(THE 4 REASONS WHY THE SC RULED IN FAVOR OF GPOE ON CITIZENSHIP)
1-A) At the outset, it must be noted that presumptions regarding paternity is neither unknown
nor unaccepted in Philippine Law. The Family Code of the Philippines has a whole chapter on
Paternity and Filiation. That said, there is more than sufficient evider1ce that petitioner has
Filipino parents and is therefore a natural-born Filipino. The Solicitor General offered official
statistics from the Philippine Statistics Authority (PSA)111 that from 1965 to 1975, the total
number of foreigners born in the Philippines was 15,986 while the total number of Filipinos
born in the country was 10,558,278. The statistical probability that any child born in the
Philippines in that decade is natural-born Filipino was 99.83%. Other circumstantial evidence
of the nationality of petitioner’s parents are the fact that she was abandoned as an infant in a
Roman Catholic Church in Iloilo City.1âwphi1 She also has typical Filipino features: height, flat
nasal bridge, straight black hair, almond shaped eyes and an oval face.
1-B) As a matter of law, foundlings are as a class, natural-born citizens. While the 1935
Constitution’s enumeration is silent as to foundlings, there is no restrictive language which
would definitely exclude foundlings either. Because of silence and ambiguity in the
enumeration with respect to foundlings, there is a need to examine the intent of the framers.
All exhort the State to render social justice. Of special consideration are several provisions in
the present charter: Article II, Section 11 which provides that the “State values the dignity of
every human person and guarantees full respect for human rights,” Article XIII, Section 1
which mandates Congress to “give highest priority to the enactment of measures that protect
and enhance the right of all the people to human dignity, reduce social, economic, and political
inequalities x x x” and Article XV, Section 3 which requires the State to defend the “right of
children to assistance, including proper care and nutrition, and special protection from all forms
of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development.”
Certainly, these provisions contradict an intent to discriminate against foundlings on account of
their unfortunate status.
1-C)Recent legislation is more direct. R.A. No. 8043 entitled “An Act Establishing the Rules to
Govern the Inter-Country Adoption of Filipino Children and For Other Purposes” (otherwise
known as the “Inter-Country Adoption Act of 1995”), R.A. No. 8552, entitled “An Act
Establishing the Rules and Policies on the Adoption of Filipino Children and For Other
Purposes” (otherwise known as the Domestic Adoption Act of 1998) and this Court’s A.M. No.
02-6-02-SC or the “Rule on Adoption,” all expressly refer to “Filipino children” and include
foundlings as among Filipino children who may be adopted.
1-D) Foundlings are likewise citizens under international law. Under the 1987 Constitution, an
international law can become part of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local legislation
D.1) Universal Declaration of Human Rights (“UDHR”) has been interpreted by this Court as
part of the generally accepted principles of international law and binding on the State.
D.2) The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC)
D.3) n 1986, the country also ratified the 1966 International Covenant on Civil and Political
Rights (ICCPR).
The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant
nationality from birth and ensure that no child is stateless. This grant of nationality must be at
the time of birth, and it cannot be accomplished by the application of our present naturalization
laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which require the
applicant to be at least eighteen (18) years old. That the Philippines is not a party to the 1930
Hague Convention nor to the 1961 Convention on the Reduction of Statelessness does not
mean that their principles are not binding. While the Philippines is not a party to the 1930
Hague Convention, it is a signatory to the Universal Declaration on Human Rights. this Court
noted that the Philippines had not signed or ratified the “International Convention for the
Protection of All Persons from Enforced Disappearance.” Yet, we ruled that the proscription
against enforced disappearances in the said convention was nonetheless binding as a
“generally accepted principle of international law.” Another case where the number of ratifying
countries was not determinative is Mijares v. Ranada, where only four countries had “either
ratified or acceded to” the 1966 “Convention on the Recognition and Enforcement of Foreign
Judgments in Civil and Commercial Matters” when the case was decided in 2005. In sum, all
of the international law conventions and instruments on the matter of nationality of foundlings
were designed to address the plight of a defenseless class which suffers from a misfortune not
of their own making. We cannot be restrictive as to their application if we are a country which
calls itself civilized and a member of the community of nations
2) (RESIDENCY) The Constitution requires presidential candidates to have ten (10) years’
residence in the Philippines before the day of the elections. When petitioner immigrated to the
U.S. in 1991, she lost her original domicile, which is the Philippines. Petitioner presented
voluminous evidence showing that she and her family abandoned their U.S. domicile and
relocated to the Philippines for good. The foregoing evidence were undisputed and the facts
were even listed by the COMELEC, particularly in its Resolution in the Tatad, Contreras and
Valdez cases. the Court had no choice but to hold that residence could be counted only from
acquisition of a permanent resident visa or from reacquisition of Philippine citizenship. In
contrast, the evidence of petitioner is overwhelming and taken together leads to no other
conclusion that she decided to permanently abandon her U.S. residence (selling the house,
taking the children from U.S. schools, getting quotes from the freight company, notifying the
U.S. Post Office of the abandonment of their address in the U.S., donating excess items to the
Salvation Army, her husband resigning from U.S. employment right after selling the U.S.
house) and permanently relocate to the Philippines and actually re-established her residence
here on 24 May 2005 (securing T.I.N, enrolling her children in Philippine schools, buying
property here, constructing a residence here, returning to the Philippines after all trips abroad,
her husband getting employed here). Indeed, coupled with her eventual application to
reacquire Philippine citizenship and her family’s actual continuous stay in the Philippines over
the years, it is clear that when petitioner returned on 24 May 2005 it was for good.It was grave
abuse of discretion for the COMELEC to treat the 2012 COC as a binding and conclusive
admission against petitioner. It could be given in evidence against her, yes, but it was by no
means conclusive. There is precedent after all where a candidate’s mistake as to period of
residence made in a COC was overcome by evidence. For another, it could not be said that
petitioner was attempting to hide anything. As already stated, a petition for quo warranto had
been filed against her with the SET as early as August 2015. The event from which the
COMELEC pegged the commencement of residence, petitioner’s repatriation in July 2006
16 | P U B L I C I N T E R N A T I O N A L L A W
under R.A. No. 9225, was an

17 | P U B L I C I N T E R N A T I O N A L L A W
established fact to repeat, for purposes of her senatorial candidacy. In sum, the COMELEC, documents and papers submitted therewith, and that he be given ample time to comment on
with the same posture of infallibilism, virtually ignored a good number of evidenced dates all of the request after he shall have received copies of the requested papers. The Secretary denied
which can evince animus manendi to the Philippines and animus non revertedi to the United the request.
States of America. In light of all these, it was arbitrary for the COMELEC to satisfy its intention
to let the case fall under the exclusive ground of false representation, to consider no other date
than that mentioned by petitioner in her COC for Senator.

All put together, in the matter of the citizenship and residence of petitioner for her candidacy as
President of the Republic, the questioned Resolutions of the COMELEC in Division and En
Banc are, one and all, deadly diseased with grave abuse of discretion from root to fruits.

SECRETARY OF JUSTICE v. LANTION (GR 139465; 2000)

FACTS: On 13 January 1977, then President Ferdinand E. Marcos issued Presidential Decree
1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes
in a Foreign Country".

On 13 November 1994, then Secretary of Justice Franklin M. Drilon, representing the

Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty
Between the Government of the Republic of the Philippines and the Government of the United
States of America.

The Senate, by way of Resolution 11, expressed its concurrence in the ratification of the said
treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a),
Article 7 thereof (on the admissibility of the documents accompanying an extradition request
upon certification by the principal diplomatic or consular officer of the requested state resident
in the Requesting State).

On 18 June 1999, the Department of Justice received from the Department of Foreign Affairs
U.
S. Note Verbale 0522 containing a request for the extradition of Mark Jimenez to the United
States.

Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by
the U.S. District Court, Southern District of Florida, and other supporting documents for said
extradition.

Jimenez was charged in the United States for violation of

(a) 18 USC 371 (Conspiracy to commit offense or to defraud the United States, 2
counts),
(b) 26 USC 7201 (Attempt to evade or defeat tax, 4 counts),
(c) 18 USC 1343 (Fraud by wire, radio, or television, 2 counts),
(d) 18 USC 1001 (False statement or entries, 6 counts), and
(e) 2 USC 441f (Election contributions in name of another; 33 counts).

On the same day, the Secretary issued Department Order 249 designating and authorizing a
panel of attorneys to take charge of and to handle the case.

Pending evaluation of the aforestated extradition documents, Jimenez (on 1 July 1999
requested copies of the official extradition request from the US Government, as well as all

18 | P U B L I C I N T E R N A T I O N A L L A W
On 6 August 1999, Jimenez filed with the Regional Trial Court a petition against the Secretary comprehensible.
of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of
Investigation,

l for mandamus (to compel the Justice Secretary to furnish Jimenez the extradition
documents, to give him access thereto, and to afford him an opportunity to comment on, or
oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and
objectively);

l certiorari (to set aside the Justice Secretary’s letter dated 13 July 1999); and prohibition (to
restrain the Justice Secretary from considering the extradition request and from filing an
extradition petition in court;

l and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing
any act directed to the extradition of Jimenez to the United States), with an application for the
issuance of a temporary restraining order and a writ of preliminary injunction.

The trial court ruled in favor of Jimenez. The Secretary filed a petition for certiorari before the
Supreme Court.

On 18 January 2000, by a vote of 9-6, the Supreme Court dismissed the petition and ordered
the Justice Secretary to furnish Jimenez copies of the extradition request and its supporting
papers and to grant him a reasonable period within which to file his comment with supporting
evidence.

IN SUMMARY: The Department of Justice received from the Department of Foreign Affairs a
request from the United States for the extradition of Mark Jimenez to the United States
pursuant to PD No. 1609 prescribing the procedure for extradition of persons who have
committed a crime in a foreign country. Jimenez requested for copies of the request and that
he be given ample time to comment on said request. The petitioners denied the request
pursuant to the RP-US Extradition Treaty.

ISSUE: Whether or not respondent’s entitlement to notice and hearing during the evaluation
stage of the proceedings constitute a breach of the legal duties of the Philippine Government
under the RP-US Extradition Treaty.

HELD: NO. The human rights of person and the rights of the accused guaranteed in the
Constitution should take precedence over treaty rights claimed by a contracting party, the
doctrine of incorporation is applied whenever municipal tribunals are confronted with a
situation where there is a conflict between a rule of the international law and the constitution.
Efforts must first be made in order to harmonize the provisions so as to give effect to both but
if the conflict is irreconcilable, the municipal law must be upheld. The fact that international
law has been made part of the law of the land does not pertain to or imply the primacy of
international law over the municipal law in the municipal sphere. In states where the
constitution is the highest law of the land, both statutes and treaties may be invalidated if they
are in conflict with the constitution.

In the case at bar, private respondent does not only face a clear and present danger of loss of
property or employment but of liberty itself, which may eventually lead to his forcible
banishment to a foreign land. The convergence of petitioners favorable action on the
extradition request and the deprivation of private respondents liberty is easily
19 | P U B L I C I N T E R N A T I O N A L L A W
We have ruled time and again that this Courts equity jurisdiction, which is aptly described as
"justice outside legality," may be availed of only in the absence of, and never against, statutory
law or judicial pronouncements.The constitutional issue in the case at bar does not even call
for "justice outside legality," since private respondents due process rights, although not
guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not
be true to the organic law of the land if we choose strict construction over guarantees against
the deprivation of liberty. That would not be in keeping with the principles of democracy on
which our Constitution is premised.
Thus, Petitioner is ordered to furnish private respondent copies of the extradition request and
its supporting papers and to grant him a reasonable period within which to file his comment
with supporting evidence.
1830 CAROLINE AFFAIR
Historical background: In 1837, settlers in Upper Canada revolted due to dissatisfaction with
the British administration in North America. The United States remained officially neutral about
the rebellion, but American sympathizers assisted the rebels with men and supplies,
transported by a steamboat named the Caroline. In response, a combined Anglo-Canadian
force from Canada entered United States territory at night, seized the Caroline, set the ship on
fire, and sent it over Niagara Falls. An American watchmaker, Amos Durfee, was accidentally
killed by Alexander Macleod, a Canadian sheriff.[1] The British claimed that the attack was an
act of self- defense. In a letter to the British Ambassador, Secretary of State Daniel Webster
argued that a self-defense claimant would have to show that the:
necessity of self-defense was instant, overwhelming, leaving no choice of means, and
no moment of deliberation ..., and that the British force, even supposing the necessity
of the moment authorized them to enter the territories of the United States at all, did
nothing unreasonable or excessive; since the act, justified by the necessity of self-
defense, must be limited by that necessity, and kept clearly within it.
Requirements: The terms "anticipatory self-defense", "preemptive self-defense" and
"preemption" traditionally refers to a state's right to strike first in self-defense when faced with
imminent attack. In order to justify such an action, the Caroline test has two distinct
requirements:
(a) The use of force must be necessary because the threat is imminent and thus
pursuing peaceful alternatives is not an option (necessity);
(b) The response must be proportionate to the threat (proportionality).
In Webster's original formulation, the necessity criterion is described as "instant,
overwhelming, leaving no choice of means, and no moment of deliberation". This has later
come to be referred to as "instant and overwhelming necessity".
Significance: The principle of self-defense had been acknowledged prior to the Caroline test,
but it was notable for setting out specific criteria by which it could be determined whether there
had been a legitimate exercise of that right. The test was accepted by the United Kingdom and
came to be accepted as part of customary international law.
The threat or use of force is prohibited by customary international law and the UN Charter
when it is part of a preventive war waged against the territory of any State. In the Lotus case,
the Permanent Court of International Justice decided, "the first and foremost restriction
imposed by international law upon a State is that – failing the existence of a permissive rule to
the contrary
– it may not exercise its power in any form in the territory of another State." The Caroline test
was recognized and endorsed by the Nuremberg Tribunal, who adopted the same words used
in the test in judging Germany's invasion of Norway and Denmark during World War II.
The right of self-defense is permitted, when the conditions of customary international law
regarding necessity and proportionality are met. Article 51 of the UN Charter recognizes "the
inherent right of individual or collective self-defense if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken measures necessary to
maintain international peace and security." The Caroline test applies in cases where Article 51
is not a permissive rule because a defensive action was taken before an armed attack
occurred.
To this day, the Caroline test is considered the customary law standard in determining the
legitimacy of self-defense action. In 2008, Thomas Nichols wrote:
Thus the destruction of an insignificant ship in what one scholar has called a 'comic
opera affair' in the early 19th century nonetheless led to the establishment of a
principle of international life that would govern, at least in theory, the use of force for
over 250 years
Magallona v Ermita (G.R No. 187167 August 16, 2011) – refer sa bk. ni Duka sa meron (as
much as possible, mas maayos kasi explanation ata dun)
MAGALLONA v. ERMITA, G.R. 187167, August 16, 2011
Facts: In 1961, Congress passed R.A. 3046 demarcating the maritime baselines of the
Philippines as an Archepelagic State pursuant to UNCLOS I of 9158, codifying the sovereignty
of State parties over their territorial sea. Then in 1968, it was amended by R.A. 5446,
correcting some errors in R.A. 3046 reserving the drawing of baselines around Sabah.
In 2009, it was again amended by R.A. 9522, to be compliant with the UNCLOS III of 1984.
The requirements complied with are: to shorten one baseline, to optimize the location of some
basepoints and classify KIG and Scarborough Shoal as ‘regime of islands’.
Petitioner now assails the constitutionality of the law for three main reasons:
1. it reduces the Philippine maritime territory under Article 1;
2. it opens the country’s waters to innocent and sea lanes passages hence
undermining our sovereignty and security; and
3. treating KIG and Scarborough as ‘regime of islands’ would weaken our claim over
those territories.
Issue: Whether R.A. 9522 is constitutional.
Ruling:
20 | P U B L I C I N T E R N A T I O N A L L A W
1. UNCLOS III has nothing to do with acquisition or loss of territory. it is just a codified
norm that regulates conduct of States. On the other hand, RA 9522 is a baseline
law

21 | P U B L I C I N T E R N A T I O N A L L A W
 to mark out basepoints along coasts, serving as geographic starting points to the sovereign has empowered him to do.
measure. it merely notices the international community of the scope of our maritime
space.
2. If passages is the issue, domestically, the legislature can enact legislation
designating routes within the archipelagic waters to regulate innocent and sea lanes
passages but in the absence of such, international law norms operate. The fact that
for archipelagic states, their waters are subject to both passages does not place
them in lesser footing vis a vis continental coastal states. Moreover, RIOP is a
customary international law, no modern state can invoke its sovereignty to forbid
such passage.
3. On the KIG issue, RA 9522 merely followed the basepoints mapped by RA 3046 and
in fact, it increased the Phils.’ total maritime space. Moreover, the itself commits the
Phils.’ continues claim of sovereignty and jurisdiction over KIG.

If not, it would be a breach to 2 provisions of the UNCLOS III:

 Art. 47 (3): ‘drawing of basepoints shall not depart to any appreciable extent
from the general configuration of the archipelago’.
 Art 47 (2): the length of baselines shall not exceed 100 mm.

KIG and SS are far from our baselines, if we draw to include them, we’ll breach the
rules: that it should follow the natural configuration of the archipelago.

HILAO v. MARCOS

FACTS: Marcos, his family, Ver and others loyal to Marcos fled to Hawaii in February, 1986.
One month later, a number of lawsuits were filed against Marcos, Ver, and/or Imee Marcos
Manotoc, claiming that the plaintiffs had been arrested and tortured, or were the families of
people arrested, tortured, and executed between 1971 and 1986. On November 1, 1991, the
plaintiffs moved for a preliminary injunction to prevent the Estate from transferring or secreting
any assets in order to preserve the possibility of collecting a judgment. The Estate had earlier
been enjoined from transferring or secreting assets in an action brought by the Republic of the
Philippines against Ferdinand Marcos. That preliminary injunction had been appealed, and
was affirmed. See Republic of Philippines v. Marcos, 862 F.2d 1355 (9th Cir. 1988) (en banc),
cert. denied, 490 U.S. 1035, 109 S.Ct. 1933, 104 L.Ed.2d 404 (1989). When the preliminary
injunction in that case was dissolved due to a settlement, the plaintiffs in this action
immediately sought the continuation of that injunction. The district court granted the motion.

ISSUE: Whether or not Marcos, who was still a public official of the Philippines when the
alleged acts were commited, is exempted from the jursidiction of Hawaii?

RULING: NO. However, we have previously rejected the Estate's argument that FSIA
immunizes alleged acts of torture and execution by a foreign official. On appeal from entry of
default judgment against Imee Marcos-Manotoc, we rejected Marcos-Manotoc's assertion that
she was entitled to sovereign immunity because her challenged actions were premised on her
authority as a government agent. Estate I, 978 F.2d at 497. In Chuidian v. Philippine Nat'l
Bank, 912 F.2d 1095 (9th Cir.1990), we had held that FSIA does not immunize a foreign
official engaged in acts beyond the scope of his authority.

Where the officer's powers are limited by statute, his actions beyond those limitations are
considered individual and not sovereign actions. The officer is not doing the business which
22 | P U B L I C I N T E R N A T I O N A L L A W
Although sometimes criticized as a ruler and at times invested with extraordinary powers,
Ferdinand Marcos does not appear to have had the authority of an absolute autocrat. He was
not the state, but the head of the state, bound by the laws that applied to him Our courts have
had no difficulty in distinguishing the legal acts of a deposed ruler from his acts for personal
profit that lack a basis in law. As in the case of the deposed Venezuelan ruler, Marcos Perez
Jimenez, the latter acts are as adjudicable and redressable as would be a dictator's act of
rape.

AGUSTIN V. EDU (G.R. No. L-49112 FEB. 2, 1979)

FACTS: Petitioner, Agustin assails the validity of the Letter of Instruction No. 229 which
requires an early warning device to be carried by users of motor vehicles as being violative of
the constitutional guarantee of due process and transgresses the fundamental principle of
non- delegation of legislative power.

Herein respondent Romeo Edu in his capacity as Land Transportation Commisioner set forth
the implementing rules and regulations of the said instruction.

Petitioner make known that he "is the owner of a Volkswagen Beetle Car, Model 13035,
already properly equipped when it came out from the assembly lines with blinking lights fore
and aft, which could very well serve as an early warning device in case of the emergencies
mentioned in Letter of Instructions No. 229, as amended, as well as the implementing rules
and regulations in Administrative Order No. 1 issued by the land transportation Commission,"

Furthermore, he contends that the law is "one-sided, onerous and patently illegal and immoral
because [they] will make manufacturers and dealers instant millionaires at the expense of car
owners who are compelled to buy a set of the so-called early warning device at the rate of P
56.00 to P72.00 per set." are unlawful and unconstitutional and contrary to the precepts of a
compassionate New Society [as being] compulsory and confiscatory on the part of the
motorists who could very well provide a practical alternative road safety device, or a better
substitute to the specified set of Early Warning Device (EWD)."

This instruction, signed by President Marcos, aims to prevent accidents on streets and
highways, including expressways or limited access roads caused by the presence of disabled,
stalled or parked motor vehicles without appropriate early warning devices. The hazards
posed by these disabled vehicles are recognized by international bodies concerned with
traffic safety. The Philippines is a signatory of the 1968 Vienna Convention on Road Signs
and Signals and the United Nations Organizations and the said Vienna Convention was
ratified by the Philippine Government under PD 207.

ISSUE: WON the LOI 229 is invalid and violated constitutional guarantees of due process.

HELD: NO. The assailed Letter of Instruction was a valid exercise of police power and there
was no unlawful delegation of legislative power on the part of the respondent. As identified,
police power is a state authority to enact legislation that may interfere personal liberty or
property in order to promote the general welfare. In this case, the particular exercise of police
power was clearly intended to promote public safety.

It cannot be disputed that the Declaration of Principle found in the Constitution possesses
relevance: “The Philippines adopts the generally accepted principles of international law as
part of the law of the nation.”
23 | P U B L I C I N T E R N A T I O N A L L A W
Thus, as impressed in the 1968 Vienna Convention it is not for this country to repudiate a
commitment to which it had pledged its word. Our country’s word was resembled in our own
act of legislative ratification of the said Hague and Vienna Conventions thru P.D. No. 207.
The concept of Pacta sunt servanda stands in the way of such an attitude which is, moreoever,
at war with the principle of international morality.
Petition dismissed.
ANGLO NORWEGIAN FISHERIES CASE (UK V. NORWAY 1951)
The Court was asked to decide, amongst others, the validity, under international law, of the
methods used to delimit Norway’s territorial sea/ fisheries zone. We will not discuss the
technical aspects of the judgment relating to the delimitation, but focus on the Court’s
conclusions relating to customary international law.
Background
The United Kingdom requested the court to decide if Norway had used a legally acceptable
method in drawing the baseline from which it measured its territorial sea. The United Kingdom
argued that customary international law did not allow the length of a baseline drawn across a
bay to be longer than ten miles. Norway argued that its delimitation method was consistent
with general principles of international law.
Findings of the Court
1. The formation of customary law
The Court referred to (1) positive State practice and (2) lack of contrary State practice as a
confirmation of an existing rule of customary international law (see p. 17 and 18). There was
no mention of opinio juris in this early judgment.
In the following passage, the Court considered expressed dissent by States regarding a
particular practice to be detrimental to the existence of an alleged general rule. Yet, the Court
did not examine further whether these States adopted a contrary practice because, for
example,
(1) they were claiming an exception to the rule (see the Nicaragua jurisprudence) or (2)
because they believed that the said rule did not possess the character of customary law.
“In these circumstances the Court deems it necessary to point out that although the ten-mile
rule has been adopted by certain States both in their national law and in their treaties and
conventions, and although certain arbitral decisions have applied it as between these States,
other States have adopted a different limit. Consequently, the ten-mile rule has not acquired
the authority of a general rule of international law.”
1.1. The persistent objector
The Court in its judgment held that even if a customary law rule existed on the aforementioned
ten-mile rule,
“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she
has always opposed any attempt to apply it to the Norwegian coast.”
In this case, the Court appears to support the idea that an existing customary law rule would
not apply to a State if (1) it objected to the application of the rule to itself (2) at the initial stages
and
(3) in a consistent manner. The Anglo Norwegian Fisheries Case, thus, supports the Asylum
Case (Peru vs Colombia) in articulating what we now call the persistent objector rule.
a. Initial objection
The Court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that, “in
spite of the adoption in some treaties of the quite arbitrary distance of 10 sea miles, this
distance would not appear to me to have acquired the force of international law. Still less
would it appear to have any foundation in reality…”
The Court held that “Language of this kind can only be construed as the considered
expression of a legal conception regarded by the Norwegian Government as compatible with
international law”. Thus, the Court held that Norway had refused to accept the rule as regards
to it in 1870.
b. Sustained objection
The Court also went on to hold that Norway had followed the principles of delimitation that it
considered a part of its system in a consistent and uninterrupted manner from 1869 until the
time of the dispute.
In establishing consistent practice, the Court held that “…too much importance need not be
attached to the few uncertainties or contradictions, real or apparent, which the United Kingdom
Government claims to have discovered in Norwegian practice.”
c. No objection by other States
The Court held that the 10-mile rule did not form a part of the general law and, in any event,
could not bind Norway because of the latter’s objections. Next, the Court inquired whether the
Norwegian system of delimitation was nevertheless contrary to international law. To do so, the
Court relied on state practice once more.
“The general toleration of foreign States with regard to the Norwegian practice is an
unchallenged fact. For a period of more than sixty years the United Kingdom Government itself
in no way contested it… The Court notes that in respect of a situation which could only be
strengthened with the passage of time, the United Kingdom Government refrained from
formulating reservations.”
1.2. Contrary State practice of Norway?
In this case, Norway adopted a contrary practice – a practice that was the subject of litigation.
However, interestingly, Norway was clear that it was not claiming an exception to the rule (i.e.
that its practice was not contrary to international law). It emphasized that its practice – even if it
was a deviation from the general practice – was in conformity with international law (see page
21).
“In its (Norway’s) view, these rules of international law take into account the diversity
24 | P U B L I C I N T E R N A T I O N A L L A W
of facts and, therefore, concede that the drawing of base-lines must be adapted to the
special conditions obtaining in different regions. In its view, the system of
delimitation

25 | P U B L I C I N T E R N A T I O N A L L A W
 applied in 1935, a system characterized by the use of straight lines, does not therefore
infringe the general law; it is an adaptation rendered necessary by local conditions. ”
The Court held that the fact that this consistent and sufficiently long practice took place without
any objection to the practice from other States (until the time of dispute) indicated that these
States did not consider the Norwegian system to be “contrary to international law”.
“The notoriety of the facts, the general toleration of the international community, Great
Britain’s position in the North Sea, her own interest in the question, and her prolonged
abstention would in any case warrant Norway’s enforcement of her system against the
United Kingdom. The Court is thus led to conclude that the method of straight lines,
established in the Norwegian system, was imposed by the peculiar geography of the
Norwegian coast; that even before the dispute arose, this method had been
consolidated by a consistent and sufficiently long practice, in the face of which the
attitude of governments bears witness to the fact that they did not consider it to be
contrary to international law.”
2. Relationship between international and national law
The Court alluded to the relationship between national and international law in delimitation of
maritime boundaries. In delimitation cases, States “must be allowed the latitude necessary in
order to be able to adapt its delimitation to practical needs and local requirements…” The
Court would also consider “…certain economic interests peculiar to a region, the reality and
importance of which are clearly evidenced by a long usage.” However, while the act of
delimitation can be undertaken by the State, its legal validity depends on international law.
“The delimitation of sea areas has always an international aspect; it cannot be dependent
merely upon the will of the coastal State as expressed in its municipal law. Although it is true
that the act of delimitation is necessarily a unilateral act, because only the coastal State is
competent to undertake it, the validity of the delimitation with regard to other States depends
upon international law. (p. 20)”
Further reading:
T. Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in
International Law’, 26 Harvard International Law Journal, 1985, p. 457,
J. Charney, ‘The Persistent Objector Rule and the Development of Customary International
Law’, 56 BYIL, 1985, p. 1.
“In fact, the two international court of justice cases which appear to support the persistent
objector rule both arose in circumstances where the new rule itself was in substantial doubt.
Thus, it was significantly easier for the objector to maintain its status. No case is cited for a
circumstance in which the objector effectively maintained its status after the rule became well
accepted in international law. In fact, it is unlikely that such a status can be maintained din light
of the realities of the international legal system. This is certainly the plight that befell the US,
The UK and Japan in the law of the sea. Their objections to expanded coastal state jurisdiction
were ultimately to no avail, and they have been forced to accede to 12-mile territorial seas and
the 200-mile exclusive economic zone. “
Curtis A. Bradley & Mitu Gulati, ‘Withdrawing from International Custom‘, see also pp. 236 –
239.
“The Fisheries Case, decided a year later, pitted the United Kingdom against Norway. At
issue was whether Norway had used a legally acceptable method in drawing the baseline from
which it measured its territorial sea. The United Kingdom argued that CIL did not allow the
length of a baseline drawn across a bay to be longer than ten miles. Again, as with the Asylum
Case, the primary holding of the case was that the alleged CIL rule did not exist. In the
alternative, the court briefly remarked that, had the rule existed, it would not have applied
against Norway because Norway had “always opposed any attempt to apply it to the
Norwegian coast.”This language is often cited in support of the persistent objector doctrine, but
it could just as easily be read to support the Default View of CIL, since there is nothing in this
language that suggests that Norway’s opposition must have occurred prior to the
establishment of the alleged rule of CIL. The arguments of the parties do not resolve this
uncertainty: although the United Kingdom appears to have supported something like the
modern persistent objector doctrine, at least for rights historically exercised by a state (while
asserting that Norway had not met its requirements), Norway (which prevailed in the case)
appears to have supported something closer to the Default View.
The Asylum and Fisheries decisions provide no more than passing and ambiguous support for
the doctrine. State practice since those decisions is also relatively unhelpful, since there have
been essentially no instances in which states have invoked the doctrine. As Professor Stein
reported in a 1985 article, his research had “failed to turn up any case where an author
provided even one instance of a state claiming or granting an exemption from a rule on the
basis of the persistent objector principle—excepting of course the Asylum and Fisheries cases
themselves.”
LAWYERS LEAGUE FOR A BETTER PHILIPPINES v. PRES. AQUINO
G.R. NO. 73748, MAY 22, 1986
FACTS: President Corazon Aquino issued Proclamation No. 1 on February 25, 1986
announcing that she and Vice President Laurel were taking power. On March 25, 1986,
proclamation No.3 was issued providing the basis of the Aquino government assumption of
power by stating that the "new government was installed through a direct exercise of the power
of the Filipino people assisted by units of the New Armed Forces of the Philippines."
Petitioners alleged that the Aquino government is illegal because it was not established
pursuant to the 1973 Constitution.
ISSUE: Whether or not the government of Corazon Aquino is legitimate.
HELD: Yes.
The legitimacy of the Aquino government is not a justiciable matter but belongs to the realm of
politics where only the people are the judge.
The Supreme Court further held that:
 The people have accepted the Aquino government which is in effective control of the
entire country;
26 | P U B L I C I N T E R N A T I O N A L L A W
 It is not merely a de facto government but in fact and law a de jure government; and

27 | P U B L I C I N T E R N A T I O N A L L A W
  The community of nations has recognized the legitimacy of the new government.
REPUBLIC OF THE PHILIPPINE v. MARCOS
(806 FD. 344, US COURT OF APPEALS)
Facts: The Republic of the Philippines sought preliminary injunction barring the Marcoses,
several real estate holding companies and their alleged principal and managers as record
holders of certain properties in New York from transferring or encumbering properties, which
were alleged to have been purchase using ill-gotten wealth from the Philippines. A temporary
restraining order given and the real estate holding companies and alleged principals and
managers were ordered to vacate the said estates. The US Southern District Court of NY
granted preliminary injunction, but the defendants appealed the case with the Court of
Appeals. It was held that, among other rulings regarding the case, the act of state doctrine did
not prohibit adjudication in federal court of legality of acts of former President Marcos and his
wife in that action purely private acts by the president. This doctrine will also not apply even to
public acts because the Marcos government was no longer in power and danger of
interference with executive's conduct of foreign policy.
Issue: WON the acts of the Marcoses are insulated because they were acts of State, thereby
not reviewable by US courts.
Held: The classification of certain acts as acts of state with the consequence that their validity
will be treated as beyond judicial review is a pragmatic device, not required by the nature of
sovereign authority and inconsistently applied in international law. The purpose of the device is
to keep the judiciary from embroiling the courts and the country in the affairs of the foreign
nation whose acts are challenged. Minimally viewed, the classification keeps a court from
making pronouncements on matters over which it has no power; maximally interpreted, the
classification prevents the embarrassment of a court offending a foreign government that is
"extant at the time of suit."
The continuing vitality of the doctrine depends on its capacity to reflect the proper distribution
of functions between the judicial and political branches of the Government on matters bearing
upon foreign relations. A court that passes on the validity of an act of state intrudes into the
domain of the political branches.
WHO v. AQUINO (G.R. NO. L-35131; NOV. 29, 1972)
FACTS: Petitioner, Dr. Leonce Verstuyft, was assigned on December 6, 1971 by the WHO to
the Regional Office in Manila as Acting Assistant Director of Health Services. He is entitled to
diplomatic immunity, pursuant to the Host Agreement executed on July 22, 1951 between the
Philippine Government and the World Health Organization.
When petitioner Verstuyft’s personal effects contained in twelve (12) crates entered the
Philippines as unaccompanied baggage on January 10, 1972, they were accordingly allowed
free entry from duties and taxes.
The crates were directly stored at the Eternit Corporation’s warehouse at Mandaluyong, Rizal,
“pending his relocation into permanent quarters.”
Nevertheless, as above stated, respondent judge, Hon. Benjamin H. Aquino, De Lima V. Pres.
Duterte, G.R. No. 227635, October 15, 2019
DE LIMA V. PRES. RODRIGO R. DUTERTE
(G.R. NO. 227635, OCTOBER 15, 2019)
FACTS: May 9, 2016: Davao City Mayor Rodrigo Roa Duterte was elected as the 16th
President of the Philippines with a key agenda of his Administration was the relentless national
crackdown on illegal drugs.
August 2, 2016: Sen. De Lima delivered a privilege speech on the floor of the Senate calling a
stop to the alleged extrajudicial killings committed in the course of the crackdown.
Petition for the issuance of a writ of habeas data seeking to enjoin President Rodrigo Roa
Dutete from committing acts allegedly violative of her right to life, liberty and security through
his public statements:
August 11, 2016 public statement of President Duterte: “I know I’m the favorite whipping boy of
the NGOs and the human rights stalwarts. But, I have a special ano kaya no. She is a
government official. One day soon I will – bitiwan ko yan in public and I will have to destroy her
in public.” Incidentally, in the same event, President Duterte insinuated that with the help of
another country, he was keeping surveillance of her. “Akala nila na hindi rin ako nakikinig sa
kanila. So while all the time they were also listening to what I’ve done, I’ve also been busy, and
with the help of another country, listening to them.
The statement uttered in a briefing at the NAIA Terminal 3, Pasay City in August 17, 2016
wherein President Duterte named Sen. De Lima as the government office he referred to earlier
at the same time accused her of living an immortal life by having a romantic affair with her
driver, a married man, and of being involved in illegal drugs. “There’s one crusading lady,
whose even herself led a very immoral life, taking his driver as her lover… Paramour niya ang
driver nya nagging hooked rin sa drugs because of the close association. You know, when you
are an immoral, dirty woman, the driver was married. So you live with the driver, its
concubinage.
The statements that described her an immoral woman; that publicized her intimate and
personal life, starting from her new boyfriend to her sexual escapades; that told of her being
involved in illegal drugs as well as in activities that included her construction of a house for her
driver/lover with financing from drug-money
Statements that threatened her (“De Lima, you are finished”) and demeaned her womanhood
and humanity. If I were De Lima, ladies and gentlemen, I’ll hang myself. Your life has been,
hindi lang life, the innermost of your core as a female is being serialized everyday. Dapat kang
mag-resign. You resign. And “De Lima better hang yourself… Hindi ka na naghiya sa sarili mo.
Any other woman would have slashed her throat. You? Baka akala mo artista ka. Mga
artistang x-rated paglabas sa, paktapos ng shooting, nakangiti…”
Sen. De Lima traces his animosity towards her when she 1st encountered President Durterte
while he was still the City Mayor of Davao and she the Chairperson of the Commission on
Human Rights investigating the existence of the so-called “Davao Death Squad.”
ISSUE: W/N Presidential’s immunity from suit can shield the President from being haled to court
28 | P U B L I C I N T E R N A T I O N A L L A W
HELD: Dismissed even without the President invoking the privilege of immunity from suit.
YES.
G.R. No. 227635, October 15, 2019
 Immunity can be classified either by: a. extent i.e. absolute or qualified or b. duration
i.e. permanent or temporary
 Extent:
 Absolute immunity is granted to a government official who has proven that his
actions fell within the scope of his duties, and that his actions are discretionary rather
than ministerial – conduct or the action performed must not involve insignificant or
routinely office work but rather the challenged action must involve personal
judgment. It attaches to the function instead of the office.
 Qualified immunity was initially given to a government official who was able to prove
that at the time of commission of the act complained of, he possessed a good faith
that his actions were lawful – subjective element determined with the two-tier test:
 If the statutory or constitutional right asserted by the plaintiff was clear at the time of
the alleged wrongful action
 Whether the official should reasonably have known the action was contrary to law
 Duration:
 Permanent or the immunity for speech or debate – immunity from liability in law suits
that arise out of the performance of public duties of democratic deliberation
 Temporary or congressional immunity from arrest – to legislators from litigating even
private suits while “at Session” of Congress as public officers
 Estrada v. Desierto (G.R. No. 146710-15, March 2, 2001): Being a former President,
President Estrada no longer enjoyed immunity from suit
 David v. Macapagal-Arroyo (G.R. No. 171396, May 3, 2006): Improper to implead
President Arroyo in a consolidated petition disputing the factual bases for
Presidential Proclamation No. 1017 and General Order No. 5 declaring a state of
national emergency and called out the Armed Forces of the Philippines in her
capacity as Commander-in-Chief to maintain law and order throughout the country
and to suppress acts of lawless violence, insurrection or rebellion.
 Rubrico v. Macapagal-Arroyo (G.R. No. No. 183871, February 18, 2010): Court
upheld the exclusion of President Gloria Macapagal-Arroyo, maintaining that
presidential immunity from suit despite not being expressly reserved in the 1987
Constitution and declared that the President could not be sued during her tenure in a
petition for the issuance of the writ of amparo against military, police personnel and
the Office of the Ombudsman and including President Arroyo.
 Balao v. Macapagal-Arroyo (G.R. No. 186050, December 13, 2011): Court ruled that
RTC had erred in holding that Presidential immunity could not be invoked in amparo
proceedings
 While the concept of immunity from suit originated elsewhere, the ratification of the
1981 constitutional amendments and the 1987 Constitution made our version of
presidential immunity unique. Section 15, Article VII of the 1973 Constitution, as
amended, provided for immunity at two distinct points in time: 1. Immunity during the
tenure of the President 2. Thereafter. Framer’s intended during tenure.
 Presidential immunity does not hinge on the nature of the suit. It is not intended to
immunize the President from liability or accountability.
 Rationale for the grant of immunity stated in Soliven v. Makasiar (G.R. No. 82585,
82827, 83979, November 14, 1988): To assure the exercise of Presidential duties
and functions fee from any hindrance of distraction, considering that being the Chief
Executive of the Government is a job that aside from requiring all of the office-
holder’s time, also demands undivided attention.
 Rationale expanded in David v. Macapagal-Arroyo: It will degrade the dignity of the
high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed from
any form of harassment, hindrance or distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike the legislative and judicial
branch, only one constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties imposed upon
him by the Constitution necessarily impairs the operation of the Government.
However, this does not mean that the President is not accountable to anyone. Like
any other official, he remains accountable to the people but he may be removed from
office only in the mode provided by law and that is by impeachment.
 Passage in Soliven was made only to point out that it was the President by virtue of
the office and may be invoked only by the holder of the office; not by any other
person in the President’s behalf and that it was the President who had gone to court
as the complainant
 If the Court were to first require the President to respond to each and every
complaint brought against him, and then avail himself of presidential immunity on a
case to case basis, then the rationale for the privilege – protecting the President from
harassment, hindrance or distraction in the discharge of his duties – would very well
be defeated.issued on March 3, 1972 upon application on the same date of
respondents Constabulary Offshore Action Center (COSAC) officers search warrant
for alleged violation of RA No. 4712 directing the search and seizure of the dutiable
items in said crates.
 Upon protest of March 6, 1972 of Dr. Francisco Dy, WHO Regional Director for the
Western Pacific stationed in Manila, Secretary of Foreign Affairs Carlos P. Romulo,
personally wired on the same date respondent judge advising that Dr. Verstuyft is
entitled to immunity from search.
 The Office of the Solicitor General filed an extended comment stating the official
position of the executive branch of the Philippine Government that petitioner
Verstuyft is entitled to diplomatic immunity. The Solicitor General accordingly joined
petitioner Verstuyft’s prayer for the quashal of the search warrant. Respondent judge
nevertheless summarily denied quashal of the search warrant.
 Hence, the petition at bar.
 ISSUE: Whether or not petitioner Verstuyft is entitled “to all privileges and
immunities, exemptions and facilities accorded to diplomatic envoys in accordance
with international law” under section 24 of the Host Agreement.
 RULING: Yes. It is a recognized principle of international law and under our system
of separation of powers that diplomatic immunity is essentially a political question
and courts should refuse to look beyond a determination by the executive branch of
29 | P U B L I C I N T E R N A T I O N A L L A W
the

30 | P U B L I C I N T E R N A T I O N A L L A W
 government, and where the plea of diplomatic immunity is recognized and affirmed
by the executive branch of the government as in the case at bar, it is then the duty of
the courts to accept the claim of immunity upon appropriate suggestion by the
principal law officer of the government, the Solicitor General in this case, or other
officer acting under his direction.
 Hence, even assuming arguendo as against the categorical assurance of the
executive branch of government that respondent judge had some ground to prefer
respondents COSAC officers’ suspicion that there had been an abuse of diplomatic
immunity, the continuation of the search warrant proceedings before him was not the
proper remedy. He should, nevertheless, in deference to the exclusive competence
and jurisdiction of the executive branch of government to act on the matter, have
acceded to the quashal of the search warrant, and forwarded his findings or grounds
to believe that there had been such abuse of diplomatic immunity to the Department
of Foreign Affairs for it to deal with, in accordance with the aforementioned
Convention, if so warranted.
DUTERTE v. ICJ
The decision by a panel of judges of the International Criminal Court (ICC) to authorize a
formal investigation of crimes against humanity by the government of Philippines President
Rodrigo Duterte is a welcome development, even if it is long overdue.
Duterte has been in office since 2016, and he immediately began carrying out his policy of
having the police seek out and kill suspected drug users. By now, the police acknowledge
about 8,000 such killings, most at the hands of their own forces. The remainder are attributed
to vigilante groups that operate freely without risk of interference by the police. Human rights
organizations and others estimate that the actual number of such killings is approximately
three times the number acknowledged by the police.
indictments for crimes against humanity took place in the Nuremberg trials following World War
II. At that time, the indictments were limited to grave crimes committed on a large scale during
the war. They did not cover crimes by the Nazis in the pre-war period. In contrast, when the
treaty establishing the ICC was drafted, the authors made it clear that they intended the term
also to apply to crimes such as the murder of a distinct sector of the population on a large
scale
— as in the Philippines — when committed during peacetime.
Duterte has insisted that he will never stand trial before the ICC. His term as president expires
in 2022, and he cannot stand for re-election. It is widely expected that his daughter, Sara
Duterte, who succeeded him as Mayor of Davao City, will run to succeed him as president. It is
possible that Rodrigo Duterte himself will be a candidate for vice president. By holding on to
power, the Dutertes may believe that they can guarantee that he will not stand trial. Perhaps.
But it is worth noting that it is very difficult to predict how such matters will develop. President
Omar al-Bashir of Sudan was indicted by the ICC in 2009 and 2010 for war crimes and
genocide in Darfur. He long evaded arrest. More than a decade later, his government was
overthrown. He is now in prison and the current government of Sudan has said he will be
turned over to the ICC.
President Duterte is not the first leader in the Southeast Asia region to carry out mass
summary executions of alleged low-level drug users and others in slum neighborhoods
suspected of participation in petty crimes, though he has probably done so on a larger scale
than any of his predecessors. Perhaps he learned from their example. In their day, such
leaders as President Suharto of Indonesia and Prime Minister Thaksin Shinawatra of Thailand
also pursued such policies. If the investigation of Duterte by the International Criminal Court
leads to an indictment, it may send an important signal to others in the region and elsewhere
that such policies are not permissible.

Philippine police attribute many of these killings to shoot-outs with drug traffickers. If that were
the case, one might expect large numbers of police to have been killed or wounded. In
addition, of course, as in other situations of such conflict, one would expect the number of
victims with non-fatal wounds to far outnumber those killed. In the Philippines, virtually all the
casualties are among the alleged drug traffickers, and the victims do not survive. This tends to
support the claims by many family members that those killed were already in the custody of
the police and that the deaths were the result of executions rather than shootouts.

In an attempt to evade a formal investigation and indictments by the ICC, Duterte in March
2018 had the Philippines rescind its ratification of the Rome Statute, the treaty establishing the
international court. Withdrawal from the treaty went into effect a year later, in March 2019. In
deciding to approve a formal investigation of crimes under the court’s jurisdiction committed in
the Philippines, the ICC panel held that the treaty still applies to crimes against humanity that
were committed prior to the withdrawal, while the Philippines was bound by the Rome
Statute’s provisions. This is an important legal development. It reinforces similar decisions
reached by the ICC and indicates to other governments that they may not obtain retroactive
impunity for their crimes by withdrawing from the treaty for the ICC.

Another important element of the judicial panel’s decision is that it shows that the concept of
crimes against humanity does not apply only in circumstances of armed conflict. The first

31 | P U B L I C I N T E R N A T I O N A L L A W