PIL Cases - 1st Batch

KURODA v. JALANDONI
FACTS:
Petitioner, formerly a Lieutenant-General of the Japanese Army and Commanding
General of the Japanese Imperial Forces, was charged before a military commission
set by Executive Order No. 68 of the President of the Philippines. Said executive
order also established a National War Crimes Office and prescribed rules and
regulations governing the trial of accused war criminals. Petitioner contended that
E.O. No. 68 was illegal and unconstitutional because he cannot be tried fro violation
of international conventions, like the Geneva and Hague Conventions. Furthermore,
he alleged that the participation of two American lawyers in the prosecution was
violative of our national sovereignty.

ISSUE:
Whether the Philippine Government has the jurisdiction to try and convict Kuroda for
violating prohibited acts of the war.

HELD:
Executive Order No. 68 is legal and constitutional because Article II, Section 3 of the
1935 Constitution explicitly provides that “the Philippines renounces war as an
instrument of national policy, and adopts the generally accepted principles of
international law as part of the law of nation.”
In promulgation and enforcement of E.O. No. 68, the President of the Philippine
exercised his power as commander-in-chief of all armed forces. Moreover, it was in
adherence with the generally accepted principles and policies of international law
which form part of our Constitution.
With regards to the contention about the participation of two American lawyers, the
Philippines was under the sovereignty of the United States and thus, we were
equally bound together with the US and Japan, to the rights and obligations
contained in the treaties. These rights and obligations were not erased by our
assumption of full sovereignty.

YAMASHITA v. STYER
FACTS:
Yamashita was the Commanding General of the Japanese army in the Philippines
during World War 2. He was charged before the American military commission for
war crimes.
He filed a petition for habeas corpus and prohibition against Gen. Styer to reinstate
his status as prisoner of war from being accused as a war criminal. Petitioner also
questioned the jurisdiction of the military tribunal.

ISSUE:
Whether or not the military tribunal has jurisdiction

HELD:
YES.
The military commission was lawfully created in conformity with an act of Congress
sanctioning the creation of such tribunals.
The laws of war imposes upon a commander the duty to take any appropriate
measures within his powers to control the troops under his command to prevent
acts which constitute violation of the laws of war. Hence, petitioner could be
legitimately charged with personal responsibility arising from his failure to take such
measure. In this regard the SC invoked Art. 1 of the Hague Convention No. IV of
1907, as well as Art. 19 of Hague Convention No. X, Art. 26 of 1929 Geneva
Convention among others.
Habeas corpus is untenable since the petitioner merely sought for restoration to his
former status as prisoner of war and not a discharge from confinement. This is a
matter of military measure and not within the jurisdiction of the courts.
The petition for prohibition against the respondent will also not life since the military
commission is not made a party respondent in the case. As such, no order may be
issued requiring it to refrain from trying the petitioner.

KOOKOORITCHKIN v. SOLICITOR GENERAL
FACTS:
In August 1941, appellee-petitioner Kookooritchkin filed with the CFI of Camarines
Sur a petition for naturalization, supported by (a) the affidavits of ex-Judge Jaime M.
Reyes and Dr. Salvador Mariano, residents of Camarines Sur, (b) his declaration of
intention which was sworn in July 1940, and (c) notice of hearing. The petition was
filed in August 1941 but was not heard until August 28 and Sept. 30, 1947 when
appellee-petitioner presented his evidence, since the province was invaded by the
Japanese forces during WWI and the case records had to be reconstituted after
being destroyed during the war. Appellant SolGen cross-examined appelleepetitioner’s witnesses but did not file any opposition and did not present any
evidence to controvert the petition. The CFI granted the petition for naturalization,
finding that appellee-petitioner was a native-born Russian who grew up as a citizen
of and was part of the military of the defunct Imperial Russian Government under
the Czars. He had several stints while in military service before he joined the White
Russian Army at Vladivostok and fought against the Bolsheviks until 1922 when the
latter force defeated the former. Refusing to join the Bolshevik regime, he fled by
sea to Shanghai, and eventually went to Manila as part of the group of White
Russians under Admiral Stark in March 1923. He finally permanently resided in
Iriga, Camarines Sur except during his stint in the guerrilla force in Caramoan from
1942 to July 1945. The lower court also made findings of the establishment of his
family, employment, social life, his ability to speak and write English and Bicol, his
good moral character, adherence to the underlying principles of the Philippine
Constitution, and being a stateless refugee belonging to no State.
ISSUES:
W/N (1) appellee-petitioner’s declaration of intention to become a Filipino citizen
was valid and sufficient basis for his petition for naturalization, (2) appelleepetitioner sufficiently established legal residence in the Philippines and could speak
and write any of the principal Philippine languages, and (3) appellee-petitioner was
stateless refugee.
HELD:
(1) Section 5 of the Revised Naturalization Law applies and provides that “[n]o
declaration shall be valid until entry for permanent residence has been established
and a certificate showing the date, place and manner of his arrival has been
issued.” While appellee-petitioner’s declaration was reconstituted, the attached
certificate referred to in the declaration was not reconstituted. The SC ruled that
the law does not state that the certificate is essential to the validity of the
declaration as the only requirement is for the said certificate to be issued. There is
the uncontroverted fact of appellee-petitioner’s peaceful and continuous residence

in the Philippines for 25 years and statement in his declaration that a certificate had
been attached to the said declaration. Hence, appellee-petitioner’s declaration was
valid under law in view of other competent evidence showing the facts sought to be
established under the certificate that was not reconstituted.
(2) Appellee-petitioner has sufficiently shown legal residence in the Philippines for a
continuous period of not less than 10 years as required by Section 2 of the Revised
Naturalization Law. In addition, appellee-petitioner had good command of both
English and Bicol. While there may be many standards out there, none was set in
the law on the required ability to speak and write any of the principal Philippine
languages.
Appellee-petitioner got along well with his comrades during his
hazardous days in the guerrilla movement thus showing that he satisfied the
requirement of the law. There was also circumstantial evidence that appelleepetitioner also ought to know how to write Bicol, which uses the same alphabet
used in English and so widely used in the Philippines. Given his good command of
English as shown in his testimony, appellee-petitioner could easily make use of the
same alphabet in the place where he had been residing for 25 years.
(3) Appellant SolGen asserted that appellee-petitioner failed to show that he lost his
citizenship under the laws of Russia and that Russia granted to Filipinos the same
right to be naturalized citizens. However, the SC still found that lower court did not
err in finding appellee-petitioner as a stateless refugee. Appellee-petitioner’s
testimony that he is not a Russian citizen and that he has no citizenship is
uncontroverted. There is also the well-known ruthlessness of modern dictatorships
giving rise to a great number of stateless refugees or displaced persons, without
country or flag. The tyrannical intolerance of dictatorships to opposition translates
into beastly oppression, concentration camps and bloody purges, such that it is only
natural that those who flee to other countries to escape such a situation, such as
appellee-petitioner, lose all bonds of attachments to their former fatherlands.

THE PAQUETE HABANA
FACTS:
These are two appeals from decrees of the district court of the United States for the
southern district of Florida condemning two fishing vessels and their cargoes as
prize of war.
Each vessel was a fishing smack, running in and out of Havana, and regularly
engaged in fishing on the coast of Cuba. It sailed under the Spanish flag and was
owned by a Spanish subject of Cuban birth, living in the city of Havana. It was
commanded by a subject of Spain, also residing in Havana. Her master and crew
had no interest in the vessel, but were entitled to share her catch.
Her cargo consisted of fresh fish, caught by her crew from the sea, put on board as
they were caught, and kept and sold alive. Until stopped by the blockading
squadron she had no knowledge of the existence of the war or of any blockade. She
had no arms or ammunition on board, and made on attempt to run the blockade
after she knew of its existence, nor any resistance at the time of the capture.
The Paquete Habana (1st vessel) was a sloop and had a crew of three Cubans,
including the master, who had a fishing license from the Spanish government, and
no other commission or license. She left Havana and was captured by the United
States gunboat Castine.
The Lola (2nd vessel) was a schooner and had a crew of six Cubans, including the
master, and no commission or license. She was stopped by the United States
steamship Cincinnati, and was warned not to go into Havana, but was told that she
would be allowed to land at Bahia Honda. She then set for Bahia Honda, but on the
next morning, when near that port, was captured by the United States steamship
Dolphin.
Both the fishing vessels were brought by their captors into Key West. A libel for the
condemnation of each vessel and her cargo as prize of war was filed. Each vessel

was sold by auction (the Paquete Habana for the sum of $490 and the Lola for the
sum of $800). There was no other evidence in the record of the value of either
vessel or of her cargo.
ISSUE:
Whether or not the fishing smacks were subject to capture during the war with
Spain.
HELD:
No. By an ancient usage among civilized nations, beginning centuries ago, and
gradually ripening into a rule of international law, coast fishing vessels, pursuing
their vocation of catching and bringing in fresh fish, have been recognized as
exempt, with their cargoes and crews, from capture as prize of war. (The case then
discussed instances throughout history where fishing vessels were captured.)

It will be convenient to refer to some leading French treatises on international law as
determined by the general consent of civilized nations.
'Enemy ships,' say Pistoye and Duverdy, in their Treatise on Maritime Prizes,
published in 1855, 'are good prize. Not all, however; for it results from the
unanimous accord of the maritime powers that an exception should be made in
favor of coast fishermen. Such fishermen are respected by the enemy so long as
they devote themselves exclusively to fishing.'
De Cussy, in his work on the Phases and Leading Cases of the Maritime Law of
Nations, affirms in the clearest language the exemption from capture of fishing
boats, saying, that 'in time of war the freedom of fishing is respected by
belligerents; fishing boats are considered as neutral; in law, as in principle, they are
not subject either to capture or to confiscation.
Ortolan, in the fourth edition of his Regles Internationales et Diplomatie de la Mer,
after stating the general rule that the vessels and cargoes of subjects of the enemy
are lawful prize, says: 'Nevertheless, custom admits an exception in favor of boats
engaged in the coast fishery; these boats, as well as their crews, are free from
capture and exempt from all hostilities. The coast-fishing industry is, in truth, wholly
pacific, and of much less importance in regard to the national wealth that it may
produce than maritime commerce or the great fisheries. Peaceful and wholly
inoffensive, those who carry it on, may be called the harvesters of the territorial
seas, since they confine themselves to gathering in the products thereof; they are
for the most part poor families who seek in this calling hardly more than the means
of gaining their livelihood.' Again, after observing that there are very few solemn
public treaties which make mention of the immunity of fishing boats in time of war,
he says: 'From another point of view the custom which sanctions this immunity is

not so general that it can be considered as making an absolute international rule;
but it has been so often put in practice, and, besides, it accords so well with the rule
in use in wars on land, in regard to peasants and husbandmen, to whom coast
fishermen may be likened, that it will doubtless continue to be followed in maritime
wars to come. (A lot of opinions of other writers were also included which will not be
mentioned in this digest)
This review of the precedents and authorities on the subject appears to us
abundantly to demonstrate that at the present day, by the general consent of the
civilized nations of the world, and independently of any express treaty or other
public act, it is an established rule of international law, founded on considerations of
humanity to a poor and industrious order of men, and of the mutual convenience of
belligerent states, that coast fishing vessels, with their implements and supplies,
cargoes and crews, unarmed and honestly pursuing their peaceful calling of
catching and bringing in fresh fish, are exempt from capture as prize of war.
The exemption, of course, does not apply to coast fishermen or their vessels if
employed for a warlike purpose, or in such a way as to give aid or information to the
enemy; nor when military or naval operations create a necessity to which all private
interests must give way.

Nor has the exemption been extended to ships or vessels employed on the high sea
in taking whales or seals or cod or other fish which are not brought fresh to market,
but are salted or otherwise cured and made a regular article of commerce.
This rule of international law is one which prize courts administering the law of
nations are bound to take judicial notice of, and to give effect to, in the absence of
any treaty or other public act of their own government in relation to the matter.
By the practice of all civilized nations, vessels employed only for the purposes of
discovery or science are considered as exempt from the contingencies of war, and
therefore not subject to capture. It has been usual for the government sending out
such an expedition to give notice to other powers; but it is not essential.
To this subject in more than one aspect are singularly applicable the words uttered
by Mr. Justice Strong, speaking for this court: 'Undoubtedly no single nation can
change the law of the sea. The law is of universal obligation and no statute of one or
two nations can create obligations for the world. Like all the laws of nations, it rests
upon the common consent of civilized communities. It is of force, not because it was
prescribed by any superior power, but because it has been generally accepted as a
rule of conduct. Whatever may have been its origin, whether in the usages of
navigation, or in the ordinances of maritime states, or in both, it has become the
law of the sea only by the concurrent sanction of those nations who may be said to
constitute the commercial world. Many of the usages which prevail, and which have

the force of law, doubtless originated in the positive prescriptions of some single
state, which were at first of limited effect, but which, when generally accepted,
became of universal obligation.'
In the case, each vessel was of a moderate size, such as is not unusual in coast
fishing smacks, and was regularly engaged in fishing on the coast of Cuba. The crew
of each were few in number, had no interest in the vessel, and received, in return
for their toil and enterprise, two thirds of her catch, the other third going to her
owner by way of compensation for her use. Each vessel went out from Havana to
her fishing ground, and was captured when returning along the coast of Cuba. The
cargo of each consisted of fresh fish, caught by her crew from the sea, and kept
alive on board. Although one of the vessels extended her fishing trip, we cannot
doubt that each was engaged in the coast fishery, and not in a commercial
adventure, within the rule of international law.
The case was adjudged that the capture was unlawful and without probable cause
ordered that the proceeds of the sale of the vessel, together with the proceeds of
any sale of her cargo, be restored to the claimant, with damages and costs.

CO KIM CHAM v. VALDEZ TAN KEH
FACTS:
Co Kim Cham had a pending case that was filed during the period of Japanese
occupation. He filed a petition of Mandamus, in which he is requesting for the judge
of the lower court to continue the proceedings in the Court of First Instance in
Manila. But Judge Arsenio P. Dizon refused to take cognizance of and continue the
proceedings of the said case since the proclamation issued on October 23, 1944 by
General Douglas MacArthur invalidating and nullifying the judicial proceedings and
judgments of the court of the Philippines, in the absence of an enabling law, the
lower courts have no jurisdiction to take cognizance of and continue judicial
proceedings pending in the courts while the government is under the occupation of
the Japanese.

ISSUES:

1.
Whether or not the judicial acts and proceedings of the court existing in the
Philippines under the Philippine Executive Commission and the Republic of the
Philippines were good and valid.
2.
Whether or not the proclamation issued by General Douglas MacArthur in
which he declared “that all laws, regulations and processes of any of the
government in the Philippines are null and void” has invalidated all judgments and
judicial acts and proceedings of the said courts.
HELD:
1.
YES. The judicial acts and proceedings of the court were good and valid. The
government, during the Japanese occupation being de facto government, it
necessarily follows that the judicial acts and proceedings of the court of justice of
those governments, which are not of a political complexion, were good and valid.
Those not only judicial but also legislative acts of de facto government, which are
not of a political complexion, are remain valid after reoccupation of a territory.
2.
NO. The proclamation does not invalidate the judgement and judicial
proceedings. And applying the principles for the exercise of military authority in an
occupied territory, President McKinley, in his executive order to the Secretary of War
of May 19,1898, said in part: "Though the powers of the military occupant are
absolute and supreme, and immediately operate upon the political condition of the
inhabitants, the municipal laws of the conquered territory, such as affect private
rights of person and property and provide for the punishment of crime, are
considered as continuing in force, so far as they are compatible with the new order
of things, until they are suspended or superseded by the occupying belligerent; and
in practice they are not usually abrogated, but are allowed to remain in force and to
be administered by the ordinary tribunals, substantially as they were before the
occupation. This enlightened practice is, so far as possible, to be adhered to on the
present occasion. The judges and the other officials connected with the
administration of justice may, if they accept the authority of the United States,
continue to administer the ordinary law of the land as between man and man under
the supervision of the American Commander in Chief."
GONZALES v. HECHANOVA
FACTS:
During the term of President Diosdado Macapagal, he entered into two executive
agreements with Vietnam and Burma for the importation of rice without complying
with the requisite of securing a certification from the National Economic Council
showing that there is a shortage in cereals or rice. Hence, the then Executive
Secretary, Rufino Hechanova, authorized the importation of 67,000 tons of rice from
abroad to the detriment of our local planters. Ramon Gonzales, then president of
the Iloilo Palay and Corn Planters Association assailed the executive agreements.

Gonzales averred that Hechanova is without jurisdiction or in excess of jurisdiction”,
because Republic Act 3452 prohibits the importation of rice and corn by “the Rice
and Corn Administration or any other government agency.
ISSUE:
Whether or not RA 3452 prevails over the 2 executive agreements entered into by
Macapagal.
HELD:
Yes. Under the Constitution, the main function of the Executive is to enforce laws
enacted by Congress. The former may not interfere in the performance of the
legislative powers of the latter, except in the exercise of his veto power. He may not
defeat legislative enactments that have acquired the status of laws, by indirectly
repealing the same through an executive agreement providing for the performance
of the very act prohibited by said laws. In the event of conflict between a treaty and
a statute, the one which is latest in point of time shall prevail, is not applicable to
the case at bar, Hechanova not only admits, but, also, insists that the contracts
adverted to are not treaties. No such justification can be given as regards executive
agreements not authorized by previous legislation, without completely upsetting the
principle of separation of powers and the system of checks and balances which are
fundamental in our constitutional set up.
As regards the question whether an executive or an international agreement may be
invalidated by our courts, suffice it to say that the Constitution of the Philippines
has clearly settled it in the affirmative, by providing that the SC may not be
deprived “of its jurisdiction to review, revise, reverse, modify, or affirm on appeal,
certiorari, or writ of error, as the law or the rules of court may provide, final
judgments and decrees of inferior courts in “All cases in which the constitutionality
or validity of any treaty, law, ordinance, or executive order or regulation is in
question”. In other words, our Constitution authorizes the nullification of a treaty,
not only when it conflicts with the fundamental law, but, also, when it runs counter
to an act of Congress.

ICHONG v. HERNANDEZ
FACTS:
Lao Ichong is a Chinese businessman who entered the country to take advantage of
business opportunities herein abound (then) – particularly in the retail business. For

some time he and his fellow Chinese businessmen enjoyed a “monopoly” in the
local market in Pasay. Until in June 1954 when Congress passed the RA 1180 or the
Retail Trade Nationalization Act the purpose of which is to reserve to Filipinos the
right to engage in the retail business. Ichong then petitioned for the nullification of
the said Act on the ground that it contravened several treaties concluded by the RP
which, according to him, violates the equal protection clause (pacta sund servanda).
He said that as a Chinese businessman engaged in the business here in the country
who helps in the income generation of the country he should be given equal
opportunity.
ISSUE:
Whether or not a law may invalidate or supersede treaties or generally accepted
principles.
HELD:
Yes, a law may supersede a treaty or a generally accepted principle. In this case,
there is no conflict at all between the raised generally accepted principle and with
RA 1180. The equal protection of the law clause “does not demand absolute
equality amongst residents; it merely requires that all persons shall be treated alike,
under like circumstances and conditions both as to privileges conferred and
liabilities enforced”; and, that the equal protection clause “is not infringed by
legislation which applies only to those persons falling within a specified class, if it
applies alike to all persons within such class, and reasonable grounds exist for
making a distinction between those who fall within such class and those who do
not.”
For the sake of argument, even if it would be assumed that a treaty would be in
conflict with a statute, then the statute must be upheld because it represented an
exercise of the police power which, being inherent could not be bargained away or
surrendered through the medium of a treaty. Hence, Ichong can no longer assert his
right to operate his market stalls in the Pasay City market.

NORTH SEA CONTINENTAL SHELF CASE
FACTS:
Netherlands and Denmark had drawn partial boundary lines based on the
equidistance principle(A-B and C-D). An agreement on further prolongation of the
boundary

proved

difficult

because

Denmark

and

Netherlands

wished

this

prolongation to take place based on the equidistance principle (B-E and D-E) where
as Germany was of the view that, together, these two boundaries would produce an
inequitable result for her. Germany stated that due to its concave coastline, such a
line would result in her loosing out on her share of the continental shelf based on
proportionality to the length of its North Sea coastline. The Court had to decide the
principles and rules of international law applicable to this delimitation. In doing so,
the court had to decide if the principles espoused by the parties were binding on the
parties either through treaty law or customary international law.
Questions before the Court (as relevant to this post):
Is

Germany

under

a

legal

obligation

to

accept

the

equidistance-special

circumstances principle, contained in Article 6 of the Geneva Convention, either as
a customary international law rule or on the basis of the Geneva Convention?
The Court’s Decision:
The use of the equidistance method had not crystallised into customary law and
was is not obligatory for the delimitation of the areas in the North Sea related to the
present proceedings.
Relevant Findings of the Court:
Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular
Article 6, binding on Germany?
1. Article 6 of the Geneva Convention on the Continental Shelf states that unless the
parties have agreed on a method for delimitation or unless special circumstances
exist, the equidistance method would apply (see Article 6). Germany has signed but
not ratified the Geneva Convention, while Netherlands and Denmark are parties to
the Convention. The latter two States argue that while Germany is not a party to the

Convention (not having ratified it), she is still bound by Article 6 of the Convention
because:
“…(1) by conduct, by public statements and proclamations, and in other ways, the
Republic has unilaterally assumed the obligations of the Convention; or has
manifested its acceptance of the conventional regime; or has recognized it as being
generally applicable to the delimitation of continental shelf areas…
(2) the Federal Republic had held itself out as so assuming, accepting or
recognizing, in such a manner as to cause other States, and in particular Denmark
and the Netherlands, to rely on the attitude thus taken up” (the latter is called the
principle of estoppel).
2. The Court rejected the first argument. It stated that only a ‘very definite very
consistent course of conduct on the part of a State’ would allow the court to
presume that a State had somehow become bound by a treaty (by a means other
than in a formal manner: i.e. ratification) when the State was ‘at all times fully able
and entitled to…’ accept the treaty commitments in a formal manner. The Court
held that Germany had not unilaterally assumed obligations under the Convention.
The court also took notice of the fact that even if Germany ratified the treaty, she
had the option of entering into a reservation on Article 6 following which that
particular article would no longer be applicable to Germany (i.e. even if one were to
assume that Germany had intended to become a party to the Convention, it does
not presuppose that it would have also undertaken those obligations contained in
Article 6).
3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came
into force in 1980, discusses more fully the obligations of third States to treaties. It
clearly stipulates that an obligation arises for a third State from a provision of a
treaty only if (1) the parties to the treaty intend the provision to create this
obligation for the third States; and (2) the third State expressly accepts that
obligation in writing (A. 35 of the VCLT). The VCLT was not in force when the ICJ
deliberated on this case. However, as seen above, the ICJ’s position was consistent
the VCLT. (See the relevant provisions of the Vienna Convention on the Law of
Treaties).
4. The court held that the existence of a situation of estoppel would have allowed
Article 6 to become binding on Germany – but held that Germany’s action did not

support an argument for estoppel. The court also held that the mere fact that
Germany may not have specifically objected to the equidistance principle as
contained in Article 6 is not sufficient to state that the principle is now binding upon
it.
5. In conclusion, the court held that Germany had not acted in any way to incur
obligations contained in Article 6 of the Geneva Convention. The equidistance –
special circumstances rule was not binding on Germany by way of treaty.
Nature of the customary international law obligation: Is Germany bound by the
provisions of Article 6 of the Geneva Convention by way of customary international
law?
6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule
of general international law on the subject of continental shelf delimitation’ and
existed independently of the Convention. Therefore, they argued, Germany is bound
by it by way of customary international law.
7. To decide if the equidistance principle bound Germany by way of customary
international law, the court examined (1) the status of the principle contained in
Article 6 as it stood when the Convention was being drawn up (2) and after the
latter came into force.
What was the customary law status of Article 6 at the time of drafting the
Convention?
8. The court held the principle of equidistance, as contained in Article 6, did not
form a part of existing or emerging customary international law at the time of
drafting the Convention. The Court supported this finding based on (1) the
hesitation expressed by the drafters of the Convention – International Law
Commission – on the inclusion of Article 6 (para. 62) and (2) the fact reservations to
Article 6 was permissible under the Convention (Article 12). The court held:
… Article 6 is one of those in respect of which, under the reservations article of the
Convention (Article 12) reservations may be made by any State on signing, ratifying
or acceding for, speaking generally, it is a characteristic of purely conventional rules
and obligations that, in regard to them, some faculty of making unilateral
reservations may, within certain limits, be admitted; whereas this cannot be so in

the case of general or customary law rules and obligations which, by their very
nature, must have equal force for all members of the international community, and
cannot therefore be the subject of any right of unilateral exclusion exercisable at
will by any one of them in its own favor…. The normal inference would therefore be
that any articles that do not figure among those excluded from the faculty of
reservation under Article 12, were not regarded as declaratory of previously existing
or emergent rules of law (see para 65 for a counter argument and the court’s
careful differentiation)…”
Did the provisions in Article 6 on the equidistance principle attain the customary law
status after the Convention came into force?
9. The court then examined whether the rule contained in Article 6 had become
customary international law after the Convention entered into force – either due the
convention itself (i.e., if enough States had ratified the Convention in a manner to
fulfil the criteria specified below), or because of subsequent State practice (i.e. even
if adequate number of States had not ratified the Convention one could find
sufficient State practice to meet the criteria below). The court held that Article 6 of
the Convention had not attained a customary law status (compare the 1958 Geneva
Convention with the four Geneva Conventions on 1949 in the field of international
humanitarian law in terms of its authority as a pronouncement of customary
international law).
10. For a customary rule to emerge the court held that it needed: (1) very
widespread and representative participation in the convention, including States
whose interests were specially affected (i.e. generality); and (2) virtually uniform
practice (i.e. consistent and uniform usage) undertaken in a manner that
demonstrates (3) a general recognition of the rule of law or legal obligation (i.e.
opinio juries). In the North Sea Continental Shelf cases the court held that the
passage of a considerable period of time was unnecessary (i.e. duration) for the
formation of a customary law.
Widespread and representative participation
11. The court held that the first criteria was not met. The number of ratifications
and accessions to the convention (39 States) were not adequately representative
(including of coastal States – i.e. those States whose rights are affected) or
widespread.

Duration
12. The court held that duration taken for the customary law rule to emerge is not
as important as widespread and representative participation, uniform usage and the
existence of an opinio juris.
“Although the passage of only a short period of time (in this case, 3 – 5 years) is not
necessarily, or of itself, a bar to the formation of a new rule of customary
international law on the basis of what was originally a purely conventional rule, an
indispensable requirement would be that within the period in question, short though
it might be, State practice, including that of States whose interests are specially
affected, should have been both extensive and virtually uniform in the sense of the
provision invoked and should moreover have occurred in such a way as to show a
general recognition that a rule of law or legal obligation is involved (text in brackets
added).”
Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus
case) in so far as those acts or omissions are done following a belief that the said
State is obligated by law to act or refrain from acting in a particular way. (For more
on opinio juris click here).
14. The Court examined 15 cases where States had delimited their boundaries using
the equidistance method, after the Convention came into force (paras. 75 -77). The
court concluded, even if there were some State practice in favour of the
equidistance principle the court could not deduct the necessary opinio juris from
this State practice. The North Sea Continental Shelf Cases confirmed that both State
practice (the objective element) and opinio juris (the subjective element) are
essential pre-requisites for the formation of a customary law rule. This is consistent
with Article 38 (1) (b) of the Statute of the ICJ. The following explains the concept
of opinio juris and the difference between customs (i.e. habits) and customary law:
Not only must the acts concerned amount to a settled practice, but they must also
be such, or be carried out in such a way, as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring it. The
need for such a belief, i.e, the existence of a subjective element, is implicit in the
very notion of the opinio juris sive necessitatis. The States concerned must

therefore feel that they are conforming to what amounts to a legal obligation. The
frequency, or even habitual character of the acts is not in itself enough. There are
many international acts, e.g., in the field of ceremonial and protocol, which are
performed almost invariably, but which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty.
15.

The court concluded that the equidistance principle was not binding on

Germany by way of treaty or customary international law because, in the case of
the latter, the principle had not attained a customary international law status at
the time of the entry into force of the Geneva Convention or thereafter. As such, the
court held that the use of the equidistance method is not obligatory for the
delimitation of the areas concerned in the present proceedings.

MILITARY & PARAMILITARY ACTIVIES IN AND AGAINST NICARAGUA (NICARAGUA v. US)
Overview: The case involved military and paramilitary activities conducted by, or
with the assistance of, the United States against Nicaragua from 1981 to 1984. Due
to a multilateral treaty reservation of the United States (hereinafter called the

Vandenberg reservation), the Court was compelled to base its findings only on
customary and general principles of international law. As a result, the Nicaragua
case developed significant jurisprudence on clarifying customary international law
on the use of force and non-intervention, elements necessary to form customary
international law and the relationship between the latter and treaty law.
Controversial aspects of the decision included the court’s methodology used to
determine that the principle of non-intervention had attained customary law status,
the court’s reliance on UN resolutions as a source of opinio juris and the court’s
reliance on multilateral treaties to determine customary international law in face of
the Vandenberg reservation.
Recommendation: The Nicaragua case contains in-depth discussions on the
relationship between treaty and customary international law. Students may wish to
read this post on the relationship before reading the synopsis of the case.

In the Nicaragua case, the ICJ discussed:


The competence of the ICJ to give its determination based on customary
international law in the face of the Vandenberg reservation of the United
States.



The relationship between treaty law and customary international law.



Elements of customary international law.



The prohibition on the use of force as a jus cogens norm.



Customary international law status of the principle of non-intervention.

The competence of the ICJ to give its determination based on customary
international law
1. The United States when accepting the compulsory jurisdiction of the ICJ (under
Article 36(2) of the ICJ Statute) entered into the Vandenberg reservation. This
reservation barred the ICJ from using certain multilateral treaties in the adjudication
of the dispute.

2. The United States held that this reservation barred the Court from determining
the case even on the basis of customary and general principles of international law
because customary law provisions, on which Nicaragua relied on, were identical to
provisions in treaties sought to be excluded. Because of the identical content, the
United States argued, treaty provisions supervene and subsume the parallel
customary law provision (see below).
3. The Court disagreed. It held that multilateral treaty reservations could not
preclude the Court from determining cases relying customary international law
because the latter exists independently of treaty law.
NB: The United States disagreed with the Court’s determination to proceed with the
case and refused to participate further, including at the merits stage (see the
declaration made by the United States in this regard). Although the Court was
barred from resorting to multilateral treaties, it referred to the latter, including the
UN Charter, to identify the existence, nature and scope of various customary law
principles. Commentators criticised the Court for circumventing the multilateral
reservation in this manner.
Relationship between treaty law and customary international law
4. As we noted before, the United States argued that when customary international
law and treaty law contain the same content; the treaty law subsumes and
supervenes customary international law. In other words, “the existence of principles
in the United Nations Charter precludes the possibility that similar rules might exist
independently in customary international law, either because existing customary
rules had been incorporated into the Charter, or because the Charter influenced the
later adoption of customary rules with a corresponding content” (para 174).
5. In its response, the Court distinguished two situations:
(a)

Situations where the customary law principles were identical to treaty

provisions; and
(b)

Situations where customary law and treaty law rights and obligations differed

in respect of the same subject matter.
6. In situations where customary law principles were identical to treaty provisions
(reflected as (a) above), the Court, quite correctly, disagreed with the view of the

United States. It held that even if principles of customary international law are
codified into treaties, the former continues to exist side by side with the latter. For
treaty parties, both customary and treaty law apply and if, for some reason, the
treaty ceases to apply the identical customary law provision continues to apply
between them unaffected (see more on para 178).
7. The fact that customary international law exists alongside treaty law was an
argument brought by Norway and Denmark in the North Sea Continental Shelf
Cases. In these cases, the two countries having failed to attribute an obligation
under Article 6 of the Geneva Conventions of 1958 to Germany, sought to bind
Germany via customary international law. In this case the Court determined that
Article 6 neither reflected customary law at the time of the codification, nor had it
attained that status at the time of the determination. In the Nicaragua case, the
Court relied on the North Sea Continental Shelf Cases to support the assertion that
principles of customary international law can exist side by side with identical treaty
law provisions and the latter does not supervene the former in a manner where the
former ceases to exist (para 177).
8. The Court also relied on Article 51 of the UN Charter to show that a treaty itself
can recognise the existence of customary international law on the same subject
matter. The term “inherent” in Article 51 recognised that customary law rights of
self-defense existed alongside treaty provisions.
9. Rules containing the same content could be treated differently in customary
international law and in treaty law. For example, treaty law may contain institutions
or mechanisms to ensure the effective implementation of its provisions, including
those that reflect customary law. One could take the Court’s reading of Article 51 as
an example. A State that exercises the right of self-defence under Article 51,
according to the UN Charter, has an obligation to report the use of force
immediately to the Security Council. The Court held that this was a treaty
requirement and one that did not exist under customary law. Interestingly, although
the failure to report did not result in a breach of customary international law, the
Court indicated that the United State’s failure to observe this requirement
contradicted her claim to be acting in self defence (see paras 200, 235).
10. The Court discussed situations where customary international law and treaty law
provisions were not identical (see point (b) above). For example, the Court referred
to the fact that concepts such and necessity and proportionality, or the definition of

what constitutes an armed attack, are not found under Article 51, or the UN Charter,
but in customary law. The Court concluded that (1) this proves that customary
international law continues to exist alongside treaty law and that (2) areas governed
by the two sources of law do not (always) overlap and the rules do not (always)
have

the

same

content.

“…the Charter, having itself recognized the existence of this right (inherent
customary law right of self-defence under A. 51 of the UN Charter), does not go on
to regulate directly all aspects of its content. For example, it does not contain any
specific rule whereby self-defence would warrant only measures which are
proportional to the armed attack and necessary to respond to it, a rule well
established in customary international law. Moreover, a definition of the “armed
attack” which, if found to exist, authorises the exercise of the “inherent right” of
self-defence, is not provided in the Charter, and is not part of treaty law. It cannot
therefore be held that Article 51 is a provision which “subsumes and supervenes”
customary international law.”
11. In case of a divergence between treaty law and customary international law, for
the parties to the treaty, amongst themselves, the treaty provisions apply as lex
specialis. The court’s support for this principle can be found in paras 180 and
181. The Court, in conclusion, explained the relationship between the UN Charter
and customary international law in the following manner:
“However, so far from having constituted a marked departure from a customary
international law which still exists unmodified, the Charter gave expression in this
field (on the use of force and self defence) to principles already present in
customary international law, and that law has in the subsequent four decades
developed under the influence of the Charter, to such an extent that a number of
rules contained in the Charter have acquired a status independent of it. The
essential consideration is that both the Charter and the customary international law
flow from a common fundamental principle outlawing the use of force in
international relations. The differences which may exist between the specific
content of each are not, in the Court’s view, such as to cause a judgment confined
to the field of customary international law to be ineffective or inappropriate (to the
parties of the Charter who are bound by the Charter)… (text in brackets added)
(para 181).”

The relationship between customary international law and jus cogens
13. The court cited material presented by Nicaragua, the United States and the
International Law Commission to argue that the prohibition on the use of force
contained in Article 2(4) of the UN Charter has attained the status of a jus cogens
norm.

The Court found this to be “A further confirmation of the validity as

customary international law of the principle of the prohibition of the use of force
expressed in Article 2, paragraph 4, of the Charter of the United Nations…” (para
190).
The necessary elements
international law

to

determine

the

existence

of

customary

14. The Court, similar to the North Sea Continental Shelf Case, considered both the
subjective element (opinio juris) and the objective element (State practice) as
essential

pre-requisites

to

the

formation

and

elucidation

of

a

customary

international law norm (para 207). The jurisprudence of the Nicaragua case
contained an important clarification – inconsistent State practice does not affect the
formation or continued existence of a customary principle so long as the
inconsistency is justified as a breach of the rule.
“It is not to be expected that in the practice of States the application of the rules in
question should have been perfect, in the sense that States should have refrained,
with complete consistency, from the use of force or from intervention in each
other’s internal affairs.
The Court does not consider that, for a rule to be established as customary, the
corresponding practice must be in absolutely rigorous conformity with the rule.

In

order to deduce the existence of customary rules, the Court deems it sufficient that
the conduct of States should, in general, be consistent with such rules, and that
instances of State conduct inconsistent with a given rule should generally have
been treated as breaches of that rule, not as indications of the recognition of a new
rule.
If a State acts in a way prima facie incompatible with a recognized rule, but defends
its conduct by appealing to exceptions or justifications contained within the rule
itself, then whether or not the State’s conduct is in fact justifiable on that basis, the
significance of that attitude is to confirm rather than to weaken the rule. (para
186)”

15. The Nicaragua jurisprudence explained how one could deduct opinio juris from
acts of State. The Court held that opinio juris could be deduced from:
- the attitude of States towards certain General Assembly resolutions. For example,
the “Declaration on Principles of International Law concerning Friendly Relations…”
(hereafter called the Declaration on Friendly Relations). The Court held that:
“The effect of consent to the text of such resolutions cannot be understood as
merely that of a “reiteration or elucidation” of the treaty commitment undertaken in
the Charter. On the contrary, it may be understood as an acceptance of the validity
of the rule or set of rules declared by the resolution by themselves…It would
therefore seem apparent that the attitude referred to expresses an opinio juris
respecting such rule (or set of rules), to be thenceforth treated separately from the
provisions, especially those of an institutional kind, to which it is subject on the
treaty-law plane of the Charter”
- Statements by State representatives.
-

Obligations undertaken by participating States in international forums (the Court

provided the example of the Conference on Security and Co-operation in Europe,
Helsinki)
-

The International Law Commission’s findings that a concept amounts to a

customary law principle.
- Multilateral conventions.
NB: The fact that the Court relied on resolutions of the United Nations to deduct
opinio juris was subject to criticism. As you know, opinio juris is the subjective
element necessary to form customary law. Opinio juris is reflected in instances
where the State undertakes a particular practice because it believes that it is legally
bound to do so. Voting patterns in the United Nations are often guided by policy
considerations over legal merits. The General Assembly’s subject matter is more
policy oriented than legal (for which we have the 6th Committee). For example,
when the United States voted for the Friendly Relations Declaration it stated on
record its belief that the Declaration was “only a statement of political intention and
not an expression of the law.”

This is not to say that provisions on General

Assembly Resolutions that guide the international community to act in a certain

way may not eventually become binding international law (either by attaining
customary law status or becoming codified into treaty law). It can, if there is
adequate State practice and opinio juris. The argument is that opinio juris cannot be
said to exist based merely on a vote in favour of a non-binding resolution – in the
absence of an examination of subsequent consistent and general State practice
(which, in turn, reflects or confirms opinio juris).
Customary international law relating to principles of non-intervention
16. The Court held that “Principles such as those of the non-use of force (para 191),
non-intervention (para 192), respect for the independence and territorial integrity of
States, right of collective self defence (para 193) and the freedom of navigation,
continue to be binding as part of customary international law, despite the operation
of provisions of conventional law in which they have been incorporated (text in
brackets added).”
17.

The Court’s finding that principle of non-intervention formed a part of

customary international law invited criticism from commentators, partly because
they disagreed that the principle formed customary international law and partly
because of the Court’s own contradictions in coming to its conclusions and
inadequacy of analysis (see below). The Court’s contradiction stems from this
statement: ” The

principle

sovereign State

to

of

conduct

non-intervention
its

affairs

involves
without

the

right

outside

of

every

interference;

though examples of trespass against this principle are not infrequent, the
Court considers that it is part and parcel of customary international
law…”(emphasis added. Para 202).
18.

The Court began its analysis with two questions: “Notwithstanding the

multiplicity of declarations by States accepting the principle of non-intervention,
there remain two questions: first, what is the exact content of the principle so
accepted, and secondly, is the practice sufficiently in conformity with it for this to be
a rule of customary international law?” The first question was discussed in a
previous post and will not be discussed here.
18. Although the question seemed to direct the Court towards identifying an
existing custom, in its response the Court seemed to have already determined that
the customary law prohibition of non-intervention existed. In the following passage

the Court deliberates if, in contrast, a customary law right to intervention had
evolved.
“There have been in recent years a number of instances of foreign intervention for
the benefit of forces opposed to the government of another State. The Court is not
here concerned with the process of decolonisation… It has to consider whether
there might be indications of a practice illustrative of belief in a kind of general right
for States to intervene, directly or indirectly, with or without armed force, in support
of an internal opposition in another State, whose cause appeared particularly
worthy by reason of the political and moral values with which it was identified. For
such a general right to come into existence would involve a fundamental
modification of the customary law principle of non-intervention.” (paras 206, 207).
19. The Court went on to hold, as before, that for a new customary rule to be
formed, not only must the acts concerned “amount to a settled practice”, but they
must be accompanied by the opinio juris sive necessitates”.
“The significance for the Court of cases of State conduct prima facie inconsistent
with the principle of non-intervention lies in the nature of the ground offered as
justification. Reliance by a State on a novel right or an unprecedented exception to
the principle might, if shared in principle by other States, tend towards a
modification of customary international law. In fact however the Court finds that
States have not justified their conduct by reference to a new right of intervention or
a new exception to the principle of its prohibition. The United States authorities
have on some occasions clearly stated their grounds for intervening in the affairs of
a foreign State for reasons connected with, for example, the domestic policies of
that country, its ideology, the level of its armaments, or the direction of its foreign
policy. But these were statements of international policy, and not an assertion of
rules of existing international law.”
20. The Court also noted that the United States has not sought to justify its
intervention in Nicaragua on legal grounds, but had only justified it at a political
level. The United States had not asserted for itself legal right of intervention in
these circumstances. The Court, without further analysis into State practice, almost
immediately proceeded to find that “…no such general right of intervention,
in support

of

an

opposition

within

another

State,

exists

in

contemporary

international law. The Court concludes that acts constituting a breach of the
customary principle of non-intervention will also, if they directly or indirectly

involve the use of force, constitute a breach of the principle of non-use of force in
international relations (para 209).”
Development of a parallel customary international law?
In addition to the comments made above in italics, another interesting aspect of the
judgment is that it sought to divorce customary international law obligation from the
identical treaty obligation because of the jurisdictional bar to consider multilateral
treaties. In its consideration of customary international law it developed certain
principles independently of the treaty. For example, Article 2(4) of the UN Charter
prohibits the threat or use of force against another State. The Court held that the
same prohibition on the use of force could be found under customary international
law and as a jus cogens norm. The Court then went on to categorize the use of force
under customary law as either a “grave use of force” (i.e. use of force amounting to
an armed attack) or a “less grave use of force” (i.e. use of force that falls short of an
armed attack – for example, the threat to use force). The Court, then, restricted the
right of self-defense to a situation where there had been a grave use of force (or an
armed attack, as defined by the Court). If one were to hold that the relevant Charter
principles were clear, precise and unambiguous, one could say this divorced
interpretation could result in customary law developing in a manner that is not in
line with the Charter and thereby creating separate rights/ regimes of law that
govern the same subject matter. This is because, then, the two regimes would be
irreconcilable. However, the fact remains that the Charter does leave room for
interpretation – for example, on the definition of an armed attack or on the use of
force. In cases of ambiguity, Article 31 of the Vienna Convention on the Law of
Treaties directs us to look at, inter alia, subsequent practice and any relevant rules
of international law that maybe applicable. In other words, a treaty can be
interpreted with the assistance of customary and general principles of international
law. In this case, the development of customary law would also mean a potential
development of ambiguous treaty law – and a reconciliation of treaty and customary
law provisions.
Material on the Nicaragua case
The following contains a list of scholarly articles and other material that discuss the
Nicaragua case. If you would like to add to the list, please note your suggestions in
the comment box.

The judgment including separate opinions of individual judges and summaries of the
judgment and orders
The World Court and Jus Cogens, 81 AMJIL 93, Gorden A. Christenson. Christenson
argues that an independent development of the customary law right divorced from
the treaty can have wider consequences:
We have then a double irony. The Court uses the United States position accepting
the treaty norm against the threat or use of force also as a customary norm possibly
having jus cogens quality, in part, to justify taking jurisdiction as a matter quite
independent of the norm that otherwise falls under the multilateral treaty
reservation. Since there are two separate sources of the law, the choice of the one
source rather than the other means that the norm relied upon survives the
jurisdictional bar to the use of the other. Yet the two norms are not different enough
to undermine completely the content of the Charter norm. This formalism simply
masks the more interesting question of the Court’s institutional claim, given the
ineffectiveness of the UN Security system, to develop an international public order
case by case, by breaking away form the strictures of the Charter and treaty norms.
The Court untied the treaty norms from their constraints within the United Nations
or regional collective security systems, a potentially destabilizing decision, one
whose consequences are unforeseen. The decision based on the validity of an
autonomous norm of customary international law free from the Charter is a
constitutive one of potential great significance (81 AMJIL 100, 1987).
Trashing customary international law, Antony D’Amato, 81 AMJIL 102 (1987) (full
text): (D’Amato discusses the paucity of State practice examined by the
international court of justice before concluding that the principle non-intervention
formed part of customary international law. He argues that the acceptance of
General Assembly resolutions do not manifest opinio juris. He states that the Court
failed to consider that Article 2(4) continued to evolve through the years.)
The World Court’s Achievement, Richard Falk, 81 AMJIL 106 (Falk takes a generally
positive approach to the judgment, gives a good overview of the case and Judge
Shwebel’s dissent)
Drawing the right line, Tom J. Farer, 81 AMJIL 112 (Farer takes a cold-war contextual
approach to the judgment and supports the Court’s narrow view of an armed attack
and self defence).

Some observations on the ICJ’s procedural and substantive innovations, Thomas M.
Franck, 81 AMJIL 116 (criticizes the determination of relevant State practice in
relation to non-intervention and the reliance on UN resolutions to illicit opinio
juris (it alleges that the Court sought to harden soft law prematurely). Frank points
out that the interventions falling short of armed attacks would not allow States to
target rebel groups in another State’s territory even if the insurgency is planned,
trained, armed and directed from that territory).
Protecting the Court’s institutional interests: Why not the Marbury approach?
Michael J. Glennon, 81 AMJIL 121 (discusses reservations before the ICJ and the
Court’s prerogative to determine its own jurisdiction)
Discretion

to

decline

to

exercise

jurisdiction,

Edward

Gorden,

81

AMJIL

129 (discusses the discretionary power of the court to decline to exercise its
jurisdiction at the merit stages).
The Nicaragua judgment and the future of the law of force and self-defense, John
Lawrence Hargrove 81AMJIL 135 (Hargrove criticizes the ICJ’s construction of the
notion of collective self defense, armed attack and forcible countermeasures).
Somber reflections on the compulsory jurisdiction of the international court, Mark
Weston Janis, 81 AMJIL 144
Custom on a sliding scale, Frederic L. Kirgis 81 AMJIL 146 (Kirgis discusses the
relationship between State practice and opinio juris, criticizes the methods (or lack
thereof) of the Court in determining the customary law nature of Article 2(4) of the
Charter. Points out that actual State practice on intervention did not support the
Court’s findings).
The International Court lives unto its name, Herbert W. Briggs, 81 AMJIL 78.
Determining US responsibility for contra operations under international law, Francis
V. Boyle
Customary international law in the Nicaragua Case, Rijpkema. (Abstract: On 27 June
1986 the International Court of Justice passed judgment in the case concerning
military and paramilitary activities in and against Nicaragua. Because of a
reservation that the United States had made when it accepted the jurisdiction of the
Court, the Court could not pronounce a decision regarding the dispute insofar as it

concerned multilateral convertions. As a resuld of this, the Court was compelled to
base its judgment largely on rules of customary international law and general
principles of law. The rules of customary law which were relevant for the judgment
corresponded to a significant extent, as regards their content, to the rules of treaty
law which the Court was unable to apply, such as the prohibition on the use of force
of Article 2, paragraph 4 of the Charter of the United Nations. This led the Court to
indicate in precise terms how rules of treaty law and rules of customary law which
have a corressponding content can co-exist and how the existence of rules of
customary international law can be established in general. In addition, the Court
examined in some detail the existence and content of certain specific rules of
customary international law.)
Le peuple, c’est moi!The world court and human rights, 81 AMJIL 173
LJIL Symposium: Discussion of the ICJ Nicaragua Judgment
The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In
Between?, Lori Fisler Damrosch (Abstract: At the time the United States withdrew
from participation in the Nicaragua case at the International Court of Justice, the US
government expressed concern that ‘the course on which the Court may now be
embarked could do enormous harm to it as an institution and to the cause of
international law’. This essay examines whether or to what extent the anticipated
negative effects came to pass. It concludes that dire predictions of harm to the
Court were overstated. Twenty-five years later, the rate at which states accept the
Court’s jurisdiction has held steady. Only a few states have added jurisdictional
reservations concerning military activities. The mix of cases being brought to the
Court has shifted towards a more representative distribution. States are generally
complying with the Court’s decisions, though some compliance problems remain.
The most serious negative impact has been on the willingness of the United States
(still the Court’s most active litigant) to participate fully in international dispute
settlement.)
The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, by Marcelo
Kohen(Abstract: This article focuses on the analysis by the International Court of
Justice of the principle of non-intervention in domestic affairs in its judgment of 27
June 1986 in the case concerning Military and Paramilitary Activities in and against
Nicaragua and contrasts it with the evolution of international law and practice in
this field. It is proposed that the Court’s 1986 analysis not only remains of actuality

today, but also constitutes a precursor to legal developments that have since taken
place. This is particularly the case with regard to the relationship between the
protection of human rights on the one hand and the safeguard of state sovereignty
and the collective security regime on the other. The 1986 judgment helped to clarify
the content of humanitarian assistance. It constituted the starting point for the
development of this concept in a series of GA resolutions that were subsequently
adopted. The controversial doctrine of ‘humanitarian intervention’, as well as state
practice in violation of this principle, in no way led to modifying existing
international law. Similarly, the new concept of ‘responsibility to protect’, which
places emphasis on collective security and discounts unilateral action, has not led
to the disappearance of the principle of non-intervention either.)

ASYLUM CASE

Overview:
Columbia granted asylum to a Peruvian, accused of taking part in a military
rebellion in Peru. Was Columbia entitled to make a unilateral and definitive
qualification of the offence (as a political offence) in a manner binding on Peru and
was Peru was under a legal obligation to provide safe passage for the Peruvian to
leave Peru?
Facts of the Case:
Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the
crime of military rebellion” which took place on October 3, 1949, in Peru. 3 months
after the rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The
Colombian Ambassador confirmed that Torre was granted diplomatic asylum in
accordance with Article 2(2) of the Havana Convention on Asylum of 1928 and
requested safe passage for Torre to leave Peru. Subsequently, the Ambassador also
stated Colombia had qualified Torre as a political refugee in accordance with Article
2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not
the same as the Refugee Convention of 1951). Peru refused to accept the unilateral
qualification and refused to grant safe passage.
Questions before the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify
the offence for the purpose of asylum under treaty law and international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee
of safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928
(hereinafter called the Havana Convention) when it granted asylum and is
the continued maintenance of asylum a violation of the treaty?
The Court’s Decision:
Relevant Findings of the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify
the offence for the purpose of asylum under treaty law and international law?

1. The court stated that in the normal course of granting diplomatic asylum a
diplomatic representative has the competence to make a provisional qualification of
the offence (for example, as a political offence) and the territorial State has the
right to give consent to this qualification. In the Torre’s case, Colombia has asserted,
as the State granting asylum, that it is competent to qualify the nature of the
offence in a unilateral and definitive manner that is binding on Peru. The court had
to decide if such a decision was binding on Peru either because of treaty law (in
particular the Havana Convention of 1928 and the Montevideo Convention of 1933),
other principles of international law or by way of regional or local custom.
2. The court held that there was no expressed or implied right of unilateral and
definitive qualification of the State that grants asylum under the Havana Convention
or relevant principles of international law (p. 12, 13). The Montevideo Convention of
1933, which accepts the right of unilateral qualification, and on which Colombia
relied to justify its unilateral qualification, was not ratified by Peru. The Convention,
per say, was not binding on Peru and considering the low numbers of ratifications
the provisions of the latter Convention cannot be said to reflect customary
international law (p. 15).
3. Colombia also argued that regional or local customs support the qualification. The
court held that the burden of proof on the existence of an alleged customary law
rests with the party making the allegation:
“The Party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other Party… (that)
it is in accordance with a (1) constant and uniform usage (2) practiced by the States
in question, and that this usage is (3) the expression of a right appertaining to the
State granting asylum (Columbia) and (4) a duty incumbent on the territorial State
(in this case, Peru). This follows from Article 38 of the Statute of the Court, which
refers to international custom “as evidence of a general practice accepted as
law(text in brackets added).”
4. The court held that Columbia did not establish the existence of a regional custom
because it failed to prove consistent and uniform usage of the alleged custom by
relevant States. The fluctuations and contradictions in State practice did not allow
for the uniform usage (see also Mendelson, 1948 and see also Nicaragua case, p.
98, the legal impact of fluctuations of State practice). The court also reiterated that
the fact that a particular State practice was followed because of political expediency

and not because of a belief that the said practice is binding on the State by way of a
legal obligation (opinio juris) is detrimental to the formation of a customary law
(see North Sea Continental Shelf Cases and Lotus Case for more on opinio juris):
“[T]he Colombian Government has referred to a large number of particular cases in
which diplomatic asylum was in fact granted and respected. But it has not shown
that the alleged rule of unilateral and definitive qualification was invoked or … that
it was, apart from conventional stipulations, exercised by the States granting
asylum as a right appertaining to them and respected by the territorial States as a
duty incumbent on them and not merely for reasons of political expediency. The
facts brought to the knowledge of the Court disclose so much uncertainty and
contradiction, so much fluctuation and discrepancy in the exercise of diplomatic
asylum and in the official views expressed on various occasions, there has been so
much inconsistency in the rapid succession of conventions on asylum, ratified by
some States and rejected by others, and the practice has been so much influenced
by considerations of political expediency in the various cases, that it is not possible
to discern in all this any constant and uniform usage, mutually accepted as law,
with regard to the alleged rule of unilateral and definitive qualification of the
offence.”
5. The court held that even if Colombia could prove that such a regional custom
existed, it would not be binding on Peru, because Peru “far from having by its
attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying
the Montevideo Conventions of 1933 and 1939, which were the first to include a
rule concerning the qualification of the offence [as “political” in nature] in matters
of diplomatic asylum.” (See in this regard, the lesson on persistent objectors.
Similarly in the North Sea Continental Shelf Cases the court held ‘in any event the . .
. rule would appear to be inapplicable as against Norway in as much as she had
always opposed any attempt to apply it to the Norwegian coast’.)
6. The court concluded that Columbia, as the State granting asylum, is not
competent to qualify the offence by a unilateral and definitive decision, binding on
Peru.
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee
of safe passage?

7. The court held that there was no legal obligation on Peru to grant safe passage
either because of the Havana Convention or customary law. In the case of the
Havana Convention, a plain reading of Article 2 results in an obligation on the
territorial state (Peru) to grant safe passage only after it requests the asylum
granting State (Columbia) to send the person granted asylum outside its national
territory (Peru). In this case the Peruvian government had not asked that Torre leave
Peru. On the contrary, it contested the legality of asylum granted to him and
refused to grant safe conduct.
8. The court looked at the possibility of a customary law emerging from State
practice where diplomatic agents have requested and been granted safe passage
for asylum seekers, before the territorial State could request for his departure. Once
more, the court held that these practices were a result of a need for expediency and
other practice considerations over an existence of a belief that the act amounts to a
legal obligation (see paragraph 4 above).
“There exists undoubtedly a practice whereby the diplomatic representative who
grants asylum immediately requests a safe conduct without awaiting a request from
the territorial state for the departure of the refugee…but this practice does not and
cannot mean that the State, to whom such a request for safe-conduct has been
addressed, is legally bound to accede to it.”
(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it
granted asylum and is the continued maintenance of asylum a violation of the
treaty?
9. Article 1 of the Havana Convention states that “It is not permissible for States to
grant asylum… to persons accused or condemned for common crimes… (such
persons) shall be surrendered upon request of the local government.”
10. In other words, the person-seeking asylum must not be accused of a common
crime (for example, murder would constitute a common crime, while a political
offence would not).The accusations that are relevant are those made before the
granting of asylum. Torre’s accusation related to a military rebellion, which the court
concluded was not a common crime and as such the granting of asylum complied
with Article 1 of the Convention.

11. Article 2 (2) of the Havana Convention states that “Asylum granted to political
offenders in legations, warships, military camps or military aircraft, shall be
respected to the extent in which allowed, as a right or through humanitarian
toleration, by the usages, the conventions or the laws of the country in which
granted and in accordance with the following provisions: First: Asylum may not be
granted except in urgent cases and for the period of time strictly indispensable for
the person who has sought asylum to ensure in some other way his safety.”
12. An essential pre-requisite for the granting of asylum is the urgency or, in other
words, the presence of “an imminent or persistence of a danger for the person of
the refugee”. The court held that the facts of the case, including the 3 months that
passed between the rebellion and the time when asylum was sought, did not
establish the urgency criteria in this case (pp. 20 -23). The court held:
“In principle, it is inconceivable that the Havana Convention could have intended
the term “urgent cases” to include the danger of regular prosecution to which the
citizens of any country lay themselves open by attacking the institutions of that
country… In principle, asylum cannot be opposed to the operation of justice.”
13. In other words, Torre was accused of a crime but he could not be tried in a court
because Colombia granted him asylum. The court held that “protection from the
operation of regular legal proceedings” was not justified under diplomatic asylum.
14. The court held:
“In the case of diplomatic asylum the refugee is within the territory of the State. A
decision to grant diplomatic asylum involves a derogation from the sovereignty of
that State. It withdraws the offender from the jurisdiction of the territorial State and
constitutes an intervention in matters which are exclusively within the competence
of that State. Such a derogation from territorial sovereignty cannot be recognised
unless its legal basis is established in each particular case.”
15. As a result, exceptions to this rule are strictly regulated under international law.
An exception to this rule (asylum should not be granted to those facing regular
prosecutions) can occur only if, in the guise of justice, arbitrary action is substituted
for the rule of law. Such would be the case if the administration of justice were
corrupted by measures clearly prompted by political aims. Asylum protects the

political offender against any measures of a manifestly extra-legal character which
a Government might take or attempt to take against its political opponents… On
the other hand, the safety which arises out of asylum cannot be construed as a
protection against the regular application of the laws and against the jurisdiction of
legally constituted tribunals. Protection thus understood would authorize the
diplomatic agent to obstruct the application of the laws of the country whereas it is
his duty to respect them… Such a conception, moreover, would come into conflict
with one of the most firmly established traditions of Latin-America, namely, nonintervention [for example, by Colombia into the internal affairs of another State like
Peru]….
16. Asylum may be granted on “humanitarian grounds to protect political prisoners
against the violent and disorderly action of irresponsible sections of the population.”
(for example during a mob attack where the territorial State is unable to protect the
offender). Torre was not in such a situation at the time when he sought refuge in the
Colombian Embassy at Lima.
17. The court concluded that the grant of asylum and reasons for its prolongation
were not in conformity with Article 2(2) of the Havana Convention (p. 25).
“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. Any grant
of asylum results in, and in consequence, logically implies, a state of protection, the
asylum is granted as long as the continued presence of the refugee in the embassy
prolongs this protection.”

“In the case of diplomatic asylum the refugee is within the territory of the State. A
decision to grant diplomatic asylum involves a derogation from the sovereignty of
that State. It withdraws the offender from the jurisdiction of the territorial State and
constitutes an intervention in matters which are exclusively within the competence
of that State. Such a derogation from territorial sovereignty cannot be recognised
unless its legal basis is established in each particular case.”

15. As a result, exceptions to this rule are strictly regulated under international law.
An exception to this rule (asylum should not be granted to those facing regular
prosecutions) can occur only if, in the guise of justice, arbitrary action is substituted
for the rule of law. Such would be the case if the administration of justice were
corrupted by measures clearly prompted by political aims. Asylum protects the
political offender against any measures of a manifestly extra-legal character which
a Government might take or attempt to take against its political opponents… On
the other hand, the safety which arises out of asylum cannot be construed as a
protection against the regular application of the laws and against the jurisdiction of
legally constituted tribunals. Protection thus understood would authorize the
diplomatic agent to obstruct the application of the laws of the country whereas it is
his duty to respect them… Such a conception, moreover, would come into conflict
with one of the most firmly established traditions of Latin-America, namely, nonintervention [for example, by Colombia into the internal affairs of another State like
Peru]….
16. Asylum may be granted on “humanitarian grounds to protect political prisoners
against the violent and disorderly action of irresponsible sections of the population.”
(for example during a mob attack where the territorial State is unable to protect the
offender). Torre was not in such a situation at the time when he sought refuge in the
Colombian Embassy at Lima.
17. The court concluded that the grant of asylum and reasons for its prolongation
were not in conformity with Article 2(2) of the Havana Convention (p. 25).
“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. Any grant
of asylum results in, and in consequence, logically implies, a state of protection, the
asylum is granted as long as the continued presence of the refugee in the embassy
prolongs this protection.”

DIVERSION OF WATER FROM THE MEUSE (NETHERLANDS v. BELGIUM)

Facts
On May l2th, 1863, Belgium and the Netherlands concluded a Treaty the purpose of
which was "to settle permanently and definitively the regime governing diversions
of water from the Meuse for the feeding of navigation canals and irrigation
channels.(1)Article I of this Treaty provided for the construction below Maestricht, in
Netherlands territory, of a new intake which would constitute "the feeding conduit
for all canals situated below that town and for irrigation in the Campine and in the
Netherlands.(2)
The Belgian Government accepted the Treaty not without reluctance, in view of the
fact that it provided for only one intake and that to be situated in foreign territory.
When the economic development of the Belgian and Netherlands provinces of
Limburg necessitated the enlargement of certain canals and the construction of new
works, the two States signed in 1925 a new agreement designed to settle the
differences which had arisen in respect of the construction programmes. After the
rejection of this agreement by the Netherlands First Chamber, the Netherlands
proceeded to construct and complete the Juliana Canal, the Bosscheveld Lock and
the Borgharen barrage. On its part, Belgium began the construction of the Albert
Canal, unfinished at the time of the judgment, a barrage at Monsin and a lock at
Neerhaeren.
As no further progress could be made in the settlement of the points at issue
between the two States, the Netherlands initiated proceedings in the Court by
means of a unilateral application, based on the declarations made by both the
Netherlands and Belgium in which they accepted the compulsory jurisdiction of the
Court under Article 36 (a) of the Statute. Belgium, on its part, made a counter-claim.
In the course of the proceedings and at the suggestion of the Belgian Agent, which
the Netherlands Agent did not oppose, the Court visited the locality in order to see
on the spot the installations, canals and waterways to which the dispute related and
to witness practical demonstrations of the operations of locks and installations
connected therewith.

Submissions of the Parties
The Netherlands ask the Court in the main to adjudge and declare that the works
already carried out by Belgium were contrary to the Treaty of 1863, that the

proposed works would be contrary to it and, consequently, to "order Belgium a) to
discontinue all the works" listed in the Netherlands' submissions and "to restore to a
condition consistent with the Treaty of 1863 all works constructed in breach of that
Treaty; b) to discontinue any feeding held to be contrary to the said Treaty and to
refrain from any further such feeding.(3)
On its part, Belgium asks the Court to declare the Netherlands' submissions illfounded, as well as to adjudge and declare, in respect of the counter-claim, that the
Borgharen barrage was constructed in breach of the stipulations of the Treaty of
1863, that the Juliana Canal is subject to the provisions of the Treaty and, finally, to
reserve the rights accruing to Belgium from the breaches so committed.

Summary of the Judgment
Since the questions at issue are governed by the Treaty of 1863, the Court at the
outset discards the application to the dispute of the general rules of international
river law in favour of the interpretation and application of the Treaty.
The Netherlands maintain that Article I of the Treaty, (4) which provides for a single
feeder, situated in Netherlands territory, gives them the right to supervise and
control all the intakes, situated not only in their own territory, but also in Belgian
territory. This contention necessarily implies that "the Treaty of 1863 intended to
place the Parties in a situation of legal inequality by conferring on the Nether-lands
a right of control to which Belgium could not lay claim. (5) But, in order to allow the
existence of such inequality between the Parties to a treaty freely concluded, the
text of the treaty must say so in precise terms. In the absence of such terms, the
Court rejects the Netherlands' submission.
While criticizing the construction by Belgium of the Neerhaeren Lock, the
Netherlands do not invoke a specific provision of the Treaty. The Court grants that
the Treaty has brought into existence a certain régime which results from all its
provisions taken together and that, accordingly, it forms a complete whole, the
different provisions of which cannot be dissociated from the others and considered
in isolation. This is equally the case with Article I which must be interpreted
together with the other Articles. In the light of this Article, thus interpreted, neither
the Netherlands' contention regarding the Neerhaeren Lock, nor the Belgian reply,
can be accepted in its entirety. Furthermore, the Court, after mentioning the
construction by the Netherlands of the Bosscheveld Lock, refuses to admit the

Netherlands' complaint about the construction and operation of a lock of which they
themselves set an example in the past.
With regard to the supply by Belgium to a section of the Albert Canal of water taken
from the Meuse elsewhere than at Maestricht, the Court considers that the origin of
the water is irrelevant. Nothing prevents either Belgium or the Netherlands from
making such use as they may see fit of the canals covered by the Treaty, when the
canals do not leave their own territory. Each of the two States is at liberty in its own
territory to modify such canals, to enlarge them, to trans-form them, to fill them in
and even to increase the volume of water in them, provided that the diversion of
water at the feeder mentioned in the Treaty and the volume of water to be
discharged therefrom is not affected. The same reasoning applies to the
Netherlands' criticism of the proposed supply by Belgium to a section of another
canal of water taken from the Meuse elsewhere than at Maestricht.
Having thus rejected all the Netherlands' submissions, the Court proceeds to deal
with the Belgian counter-claims, the first of which concerns the Borgharen barrage.
The Court finds that the Treaty does not forbid the Netherlands from altering the
depth of water in the Meuse at Maestricht without the consent of Belgium, provided
that neither the discharge of water through the feeder, nor the volume of water
which it must supply, nor the current in the Zuid-Willemsvaart is thereby affected. It
is subject to this condition, and not at their arbitrary discretion, that the Netherlands
are entitled, under the Treaty, to dispose of the waters of the Meuse at Maestricht.
With regard to the alleged interference, by the criticized construction, with the
navigability of that part of the Meuse common to both States, the Court considers
that Belgium has not produced any proof of it. In reply to the second Belgian
submission, which relates to the Juliana Canal, the Court finds that the Treaty was
designed to regulate the supply of water to the canals situated on the left bank of
the Meuse only. Thus, canals situated on the right bank, such as the Juliana Canal,
do not come under the regime of water supply provided for by the Treaty.
For these reasons, the Court rejects both the Netherlands' submissions and the
submissions contained in the Belgian counter-claim.

Declaration of M. De visscher

M. De Visscher declares that he is unable to concur in the findings of the Court with
regard to the Belgian counter-claim.

Dissenting Opinion of Sir Cecil Hurst
Sir Cecil Hurst criticizes the rejection by the Court of the Belgian counter-claim.
From the purpose of the Treaty and the intention of its framers, he draws the
conclusion that the quantity of water permitted to be taken from the Meuse
depended on a minimum depth of water in the river below Maestricht. This
minimum depth of water was to safeguard navigation between Maestricht and
Venlo. The construction by the Netherlands of the Borgharen barrage has altered
this state of things, thus rendering inapplicable a provision of the Treaty.
With regard to the Juliana Canal, the Court has considered that the Treaty of 1863
applied only to withdrawals of water on the left bank of the Meuse. According to Sir
Cecil, it is not because in 1863 there was no canal on the right bank that the
intention of the Treaty was not to apply the prohibition contained in Article I to a
canal situated on the right bank. If in 1863 navigation on the river below Maestricht
was important, and if the purpose of the Treaty was to regulate withdrawals of water
with the view to maintain a certain depth of water, the intention could not have
been to restrict the effect of the Treaty to the left bank. The clear terms of the
Treaty ("pour tous les canaux situés en aval de cette ville") are broad enough to
cover canals on the right bank.

Dissenting Opinion of M. Altamira
An interpretation of the Treaty of 1863, different from that taken by the Court, leads
M. Altamira to dissent from the judgment with respect to the Neerhaeren Lock.
M. Altamira admits that the obligations contained in the Treaty are "somewhat
restrictive," having regard to circumstances which have developed since 1863. But
this is not a question for the Court. The Treaty must be observed as it stands, as
long as it remains in force. It cannot be adapted to circumstances. Should the latter
prove to be of a compelling nature, they would have to be provided for by another
legal instrument.

Dissenting Opinion of M. Anzilotti
M. Anzilotti is unable to agree with the rejection by the Court of the Netherlands'
submission relating to the Neerhaeren Lock and the Belgian submission concerning
the Borgharen barrage.
In a suit the main object of which is the interpretation of a Treaty by reference to
certain concrete facts, and in which each of the Parties presented submissions
based on a different interpretation, the Court should not have confined itself to a
mere rejection of the submissions of the Applicant without at the same time
expressing its opinion on those of the Respondent; in any ease, it should have
declared whet it considered to be the correct interpretation of the Treaty.
In order to determine whether the construction of the Neerhaeren Lock was or was
not in violation of Article I of the Treaty, M. Anzilotti proceeds to interpret this
Article. He considers that the object and intent of the Treaty must be given priority
over its text; "it is always dangerous to be guided by the literal sense of the words
before one is clear as to the object and intent of the Treaty; for it is only in this
Treaty, and with reference to this Treaty, that these words - which have no value
except in so far as they express the intention of the Parties - assume their true
significance.(6)
The fundamental object of the Treaty is to allow the withdrawal from the Meuse of a
certain quantity of water, fixed with reference to the level of the river. Another
object is to establish a regime for the Meuse capable of maintaining and improving
its navigability in spite of the quantity of water which would be extracted from the
river.
In the light of these objects, the purpose of Article I cannot be to exclude other
feeders. Its object is rather to exclude the supply of water to the canals by water
withdrawn elsewhere than at the feeder provided for in the Treaty. Consequently,
the functioning of the Neerhaeren Lock, which discharges into a canal water
diverted at Monsin in excess of the quantity laid down in the Treaty, is contrary to
the Treaty.
With regard to the alternative submission of Belgium, claiming that "by constructing
certain works contrary to the terms of the Treaty, the Applicant has forfeited the
right to invoke the Treaty against the Respondent, (7) M. Anzilotti is "convinced that
the principle underlying this submission (inadimplenti non est adimplendum) is so

just, so equitable, so universally recognized, that it must be applied in international
relations also. In any case, it is one of these 'general principles of law recognized by
civilized nations' which the Court applies in virtue of Article 38 of its Statute. (8)
Still applying the same interpretation of the Treaty of 1863, M. Anzilotti concludes
that the barrage at Borgharen is equally contrary to this Treaty. It remains to be
seen whether the fact that Belgium has not suffered any injury as a result of it can
defeat the Belgian claim. According to M. Anzilotti, the existence of an injury would
be relevant if Belgium had made a claim for damages, but not when it simply asks
for the interpretation of the Treaty. The circumstances might have changed since
1863 but the Treaty is still in force and none of the Parties to it is entitled to prevent
its execution without the consent of the other Party.

Separate Opinion of Jonkheer Van Eysinga
The dispute submitted to the Court is solely concerned with the interpretation of the
Treaty of 1863. This Treaty derogates from the normal state of affairs, according to
which the discharge of an international river belongs to that river. The compromise
established by the Treaty consists in the withdrawal of large quantities of water from
the Meuse for the benefit of Belgium, on the one hand, and the measures to offset
the undesirable consequences of that withdrawal, on the other hand.
With regard to the control of such an arrangement, Jonkheer van Eysinga does not
admit an alleged unilateral right on the part of the Netherlands, for the right of
control "is mutual wherever the convention is mutual. (9) However, the Netherlands
have never claimed for this right of control a scope as wide as that attributed to it
by the Belgian argument.
Turning to the specific contentions of the Parties, Jonkheer van Eysinga considers as
justified the Netherlands' submissions to the effect that the works already carried
out by Belgium are not in conformity with the Treaty. He takes a more qualified
attitude towards the Netherlands' submissions concerning the Belgian works in
course of completion.
With regard to the Belgian counter-claim, he is of opinion that by establishing the
barrage at Borgharen the Netherlands have certainly not violated the Treaty and
that the Juliana Canal is situated outside the territorial ambit of the Treaty.

Individual Opinion of Hudson
While he concurs in the judgment of the Court, Mr. Hudson considers that there is
room to apply here the principle of equity. "A sharp division between law and equity,
such as prevails in the administration of justice in some States, should find no place
in international jurisprudence.(10) The question here is of a general principle of law
re-cognized by civilized nations in the sense of Article 38 of the Statute, and the
Court's recognition of equity as part of international law is in no way restricted by
the special power conferred on it to decide a case ex aequo et bono if the Parties so
agree. "It would seem to be an important principle of equity that where two parties
have assumed an identical or a reciprocal obligation; one party which is engaged in
a continuing non-performance of that obligation should not be permitted to take
advantage of a similar non-performance of that obligation by the other party. (11) A
tribunal, bound by international law, ought not to shrink from applying a principle of
such obvious fairness. In equity, the Netherlands cannot ask Belgium to discontinue
the operation of the Neerhaeren Lock when the Netherlands remain free to continue
the operation of the Bosscheveld Lock. Neither of these two requests should be
granted where the circumstances are such that the judgment would disturb that
equality which is equity. If it preserves the equality between the Parties, the
judgment may better serve to facilitate their negotiations on the conclusion of a
new treaty to replace that of 1863.

FISHERIES JURISDICTION CASE (UK v. ICELAND)
FACTS:
-In 1961, the United Kingdom (Plaintiff) recognized Iceland's (D) claim to a 12-mile
fisheries limit. This was in return for Iceland's (D) agreement that any dispute
concerning Icelandic fisheries jurisdiction beyond the 12-mile limit be referred to the
International Court of Justice.
-In 1972, Iceland proposed to extend its exclusive fisheries jurisdiction from 12 to 50
miles around its shores.
-As a result, the United Kingdom (P) filed an application before the ICJ.
-Iceland (D) claimed that the agreement was no longer valid due to changed
circumstances - being that the 12-mile limit was now generally recognized and that
there would be a failure of consideration for the 1961 agreement.
Issue:
Does there have to be a radical transformation of the extent of the obligations that
need to be performed for there to be a "change of circumstances" that give rise to a
ground for invoking a termination of a treaty?
HELD:
Yes.
-In order for a change of circumstances to give rise to a ground for invoking the
termination of a treaty it is necessary that the change has resulted in a radical
transformation of the extent of the obligations still to be performed.
-The change must have increased the burden of the obligations yet to be executed
to the extent of rendering the performance something essentially different from that
initially undertaken.
-The change of circumstances alleged by Iceland in this case cannot be said to have
transformed radically the extent of the jurisdictional obligation that was imposed in
the 1961 Exchange of Notes.
Rule:
-In order for a change in circumstances to give rise to a ground for invoking the
termination of a treaty, it is necessary that the change has resulted in a radical
transformation in regards to the obligations that are still to be performed.
Analysis:
The original agreement between the parties provided for recourse to the I.C.J. in the
event of a dispute arising.
Iceland’s economy was highly dependent on fishing.
The Court did not reach the merits of Iceland’s argument here, but instead the court
dealt with the jurisdictional issues at hand.

BARCELONA TRACTION, LIGHT AND POWER COMPANY LTD.
Overview:
-Belgium (P) brought an action for damages against Spain (D) on the ground that its
nationals as shareholders of the Barcelona Traction Co., incorporated and registered
in Canada, had been seriously harmed by actions of Spain (D) resulting in
expropriation.
-The Barcelona Traction, Light, and Power Co. was incorporated and registered in
Canada for the purpose of developing and operating electrical power in Spain (D).
-After the Spanish Civil War, the company was declared bankrupt by a Spanish court
and its assets were seized.
-After the Canadian interposition ceased, Belgium (P) brought an action for damages
against Spain (D) for what it termed expropriation of the assets of the Traction Co.
on the ground that a large majority of the stock of the company was owned by
Belgian (P) nationals.
-Spain (D) raised the preliminary objection that Belgium (P) lacked standing to bring
suit for damages to a Canadian company.
Issue:
Does the state of the shareholders of a company have a right of diplomatic
protection if the state whose responsibility is invoked is not the national state of the
company?
Outcome:
No. In order for a state to bring a claim in respect of the breach of an obligation
owed to it, it must first establish its right to do so. This right is predicated on a
showing that the defendant state has broken an obligation toward the national state
in respect of its nationals. In the present case it is therefore essential to establish
whether the losses allegedly suffered by Belgian (P) shareholders in Barcelona
Traction were the consequence of the violation of obligations of which they are
beneficiaries.
-In the present state of the law, the protection of shareholders requires that
recourse be had to treaty stipulations or special agreements directly concluded
between the private investor and the state in which the investment is placed.
Barring such agreements, the obligation owed is to the corporation, and only the
state of incorporation has standing to bring an action for violations of such an
obligation. Nonetheless, for reasons of equity a theory has been developed to the
effect that the state of the shareholders has a right of diplomatic protection when
the state whose responsibility is invoked is the national state of the company. This
theory, however, is not applicable to the present case, since Spain (D) is not the
national state of Barcelona Traction. Barcelona Traction could have approached its
national state, Canada, to ask for its diplomatic protection.
-For the above reasons, the Court is of the opinion that Belgium (P) lacks standing to
bring this action.
Rule:
the state of a shareholders corporation has a right of diplomatic protection only
when the state whose responsibility is invoked is the national state of the company.
Analysis:

The Restatement of the Foreign Relations Law of the United States. § 185, states
that failure of a state to pay just compensation for the taking of the property of an
alien is wrongful under international law, regardless of whether the taking itself is
conceived as wrongful. Such a wrongful taking is characterized either as tortious
conduct or as unjust enrichment
MEJOFF v. DIRECTOR OF PRISONS
FACTS:
Boris Mejoff was a Russian citizen who was arrested for being suspected as
a Japanese spy after the Philippine liberation. It was found out that he illegally
entered the Philippines in 1944. He was without inspection andadmission by the
immigration officials at a designated port of entry. He was then ordered to be
deported to Russia on the first available transportation to said country. But Russian
ships refused to take him due to their alleged lack of authority to do so. He was then
transferred to the Bilibid Prison and was kept in detention as the Commissioner of
Immigration believes it is of best interest to detain the unwanted alien while
arrangements for his deportation are being made. Mejoff contends that he was
legally brought to the Philippines by the then Japanese forces and he may not now
be deported. He also contends that the statutory period to deport him has long
lapsed and that we cannot detain him for an unreasonable period of time pursuant
to the Universal Declaration on Human rights.
ISSUE:
Whether or not Mejoff shall remain in detention
HELD:
Yes. The government has the power and the authority to eject from the
Philippines any and all unwanted aliens. He entered the country illegally in 1944
and was arrested in 1948. Pursuant to Section 37 of the Philippine Immigration Act
of 1940 an unwanted alien is subject to deportation within 5 years from arrest. And
he may be held for a reasonable period of time (depending on the circumstances)
while arrangements are being held for his deportation. There is no allegation
however as to the length of time that he has been detained. Hence, the same
cannot be construed as “unreasonable”. Further, there is no indication that the
statutory period to deport Mejoff had lapsed.