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Case Digests: PIL

BAYAN vs. ZAMORA


Facts:

The Philippines and the United States entered into a Mutual Defense Treaty on
August 30, 1951, To further strengthen their defense and security relationship.
Under the treaty, the parties agreed to respond to any external armed attack on
their territory, armed forces, public vessels, and aircraft.

On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty
of Friendship, Cooperation and Security which, in effect, would have extended the
presence of US military bases in the Philippines.

On July 18, 1997 RP and US exchanged notes and discussed, among other things,
the possible elements of the Visiting Forces Agreement (VFA).This resulted to a
series of conferences and negotiations which culminated on January 12 and 13,
1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively
signed by Secretary Siazon and United States Ambassador Thomas Hubbard.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of


Foreign Affairs, ratified the VFA. On October 6, 1998, the President, acting through
respondent Executive Secretary Ronaldo Zamora, officially transmitted to the
Senate of the Philippines,the Instrument of Ratification, the letter of the President
and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987
Constitution.

Petitions for certiorari and prohibition, petitioners as legislators, non-governmental


organizations, citizens and taxpayers assail the constitutionality of the VFA and
impute to herein respondents grave abuse of discretion in ratifying the agreement.

Petitioner contends, under they provision cited, the foreign military bases, troops,
or facilities may be allowed in the Philippines unless the following conditions are
sufficiently met: a) it must be a treaty,b) it must be duly concurred in by the senate,

ratified by a majority of the votes cast in a national referendum held for that
purpose if so required by congress, and c) recognized as such by the other
contracting state.

Respondents, on the other hand, argue that Section 21 Article VII is applicable so
that, what is requires for such treaty to be valid and effective is the concurrence in
by at least two-thirds of all the members of the senate.
Issue:
Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article
XVIII of the Constitution?
Ruling:
Section 25, Article XVIII, which specifically deals with treaties involving foreign
military bases, troops or facilities should apply in the instant case.

The 1987 Philippine Constitution contains two provisions requiring the concurrence
of the Senate on treaties or international agreements. Sec. 21 Art. VII, which
respondent invokes, reads: No treaty or international agreement shall be valid and
effective unless concurred in by at least 2/3 of all the Members of the Senate. Sec.
25 Art. XVIII provides : After the expiration in 1991 of the Agreement between the
RP and the US concerning Military Bases, foreign military bases, troops or facilities
shall not be allowed in the Philippines except under a treaty duly concurred in and
when the Congress so requires, ratified by a majority of votes cast by the people in
a national referendum held for that purpose, and recognized as a treaty by the
Senate by the other contracting state.

The first cited provision applies to any form of treaties and international agreements
in general with a wide variety of subject matter. All treaties and international
agreements entered into by the Philippines, regardless of subject matter, coverage
or particular designation requires the concurrence of the Senate to be valid and
effective.

In contrast, the second cited provision applies to treaties which involve presence of
foreign military bases, troops and facilities in the Philippines. Both constitutional
provisions share some common ground. The fact that the President referred the VFA
to the Senate under Sec. 21 Art. VII, and that Senate extended its concurrence
under the same provision is immaterial.

Bayan vs Zamora
Facts:
The United States panel met with the Philippine panel to discussed, among others, the
possible elements of the Visiting Forces Agreement (VFA). This resulted to a series of
conferences and negotiations which culminated on January 12 and 13, 1998. Thereafter,
President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon
and United States Ambassador Thomas Hubbard.
Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the senate
approved it by (2/3) votes.

Cause of Action:
Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable
and not Section 21, Article VII.
Following the argument of the petitioner, under they provision cited, the foreign military
bases, troops, or facilities may be allowed in the Philippines unless the following conditions
are sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required by congress, and
c) recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what
is requires for such treaty to be valid and effective is the concurrence in by at least twothirds of all the members of the senate.

ISSUE:
Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of
the Constitution?

HELD:
Section 25, Article XVIII, which specifically deals with treaties involving foreign military
bases, troops or facilities should apply in the instant case. To a certain extent and in a
limited sense, however, the provisions of section 21, Article VII will find applicability with
regard to the issue and for the sole purpose of determining the number of votes required to
obtain the valid concurrence of the senate.

The Constitution, makes no distinction between transient and permanent. We find


nothing in section 25, Article XVIII that requires foreign troops or facilities to be stationed or
placed permanently in the Philippines.
It is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a
treaty.

LIM vs. EXECUTIVE SECRETARY


Facts:
Beginning January of year 2002, personnel from the armed forces of the United
States of America started arriving in Mindanao to take part, in conjunction with the
Philippine military, in Balikatan 02-1. They are a simulation of joint military
maneuvers pursuant to the Mutual Defense Treaty a bilateral defense agreement
entered into by the Philippines and the United States in 1951. Its aim is to enhance
the strategic and technological capabilities of our armed forces through joint
training with its American counterparts; the Balikatan is the largest such training
exercise directly supporting the MDTs objectives. It is this treaty to which the VFA
adverts and the obligations thereunder which it seeks to reaffirm.

On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this
petition for certiorari and prohibition, attacking the constitutionality of the joint
exercise.

Issue:

Whether Balikatan 02-1 activities covered by the Visiting Forces Agreement?

Ruling:

To resolve this, it is necessary to refer to the VFA itself. The VFA permits United
States personnel to engage, on an impermanent basis, in activities, the exact
meaning of which was left undefined. The sole encumbrance placed on its definition
is couched in the negative, in that United States personnel must abstain from any

activity inconsistent with the spirit of this agreement, and in particular, from any
political activity.

The Vienna Convention on the Law of Treaties, Articles 31 and 32 contains provisos
governing interpretations of international agreements. It clearly provides that the
cardinal rule of interpretation must involve an examination of the text, which is
presumed to verbalize the parties intentions. The Convention likewise dictates what
may be used as aids to deduce the meaning of terms, which it refers to as the
context of the treaty, as well as other elements may be taken into account
alongside the aforesaid context.

It appeared farfetched that the ambiguity surrounding the meaning of the


word .activities arose from accident. It was deliberately made that way to give
both parties a certain leeway in negotiation. In this manner, visiting US forces may
sojourn in Philippine territory for purposes other than military. As conceived, the
joint exercises may include training on new techniques of patrol and surveillance to
protect the nations marine resources, sea search-and-rescue operations to assist
vessels in distress, disaster relief operations, civic action projects such as the
building of school houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It
is only logical to assume that .Balikatan 02-1, a mutual anti- terrorism advising,
assisting and training exercise, falls under the umbrella of sanctioned or allowable
activities in the context of the agreement.

PIMENTEL vs. EXECUTIVE SECRETARY


Facts:

This is a petition of Senator Aquilino Pimentel and the other parties to ask the
Supreme Court to require the Executive Department to transmit the Rome Statute
which established the International Criminal Court for the Senates concurrence in
accordance with Sec 21, Art VII of the 1987 Constitution.

It is the theory of the petitioners that ratification of a treaty, under both domestic
law and international law, is a function of the Senate. Hence, it is the duty of the

executive department to transmit the signed copy of the Rome Statute to the
Senate to allow it to exercise its discretion with respect to ratification of treaties.
Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the
Rome Statute under treaty law and customary international law. Petitioners invoke
the Vienna Convention on the Law of Treaties enjoining the states to refrain from
acts which would defeat the object and purpose of a treaty when they have signed
the treaty prior to ratification unless they have made their intention clear not to
become parties to the treaty.[5] The Office of the Solicitor General, commenting for
the respondents, questioned the standing of the petitioners to file the instant suit. It
also contended that the petition at bar violates the rule on hierarchy of courts. On
the substantive issue raised by petitioners, respondents argue that the executive
department has no duty to transmit the Rome Statute to the Senate for
concurrence.

Issue:

Whether or not the executive department has a ministerial duty to transmit the
Rome Statute (or any treaty) to the Senate for concurrence.

Ruling:

The petition was dismissed. The Supreme Court ruled that the the President, being
the head of state, is regarded as the sole organ and authority in external relations
and is the countrys sole representative with foreign nations. As the chief architect
of foreign policy, the President acts as the countrys mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with
foreign states and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact the business of
foreign relations. In the realm of treaty-making, the President has the sole authority
to negotiate with other states.

Nonetheless, while the President has the sole authority to negotiate and enter into
treaties, the Constitution provides a limitation to his power by requiring the
concurrence of 2/3 of all the members of the Senate for the validity of the treaty

entered into by him. Section 21, Article VII of the 1987 Constitution provides that
no treaty or international agreement shall be valid and effective unless concurred
in by at least two-thirds of all the Members of the Senate.

Justice Isagani Cruz, in his book on International Law, describes the treaty-making
process in this wise:

The usual steps in the treaty-making process are: negotiation, signature,


ratification, and exchange of the instruments of ratification. The treaty may then be
submitted for registration and publication under the U.N. Charter, although this step
is not essential to the validity of the agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually
assigns this task to his authorized representatives. These representatives are
provided with credentials known as full powers, which they exhibit to the other
negotiators at the start of the formal discussions. It is standard practice for one of
the parties to submit a draft of the proposed treaty which, together with the
counter-proposals, becomes the basis of the subsequent negotiations. The
negotiations may be brief or protracted, depending on the issues involved, and may
even collapse in case the parties are unable to come to an agreement on the
points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is
opened for signature. This step is primarily intended as a means of authenticating
the instrument and for the purpose of symbolizing the good faith of the parties; but,
significantly, it does not indicate the final consent of the state in cases where
ratification of the treaty is required. The document is ordinarily signed in
accordance with the alternat, that is, each of the several negotiators is allowed to
sign first on the copy which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and
accepts the provisions of a treaty concluded by its representatives. The purpose of
ratification is to enable the contracting states to examine the treaty more closely
and to give them an opportunity to refuse to be bound by it should they find it
inimical to their interests. It is for this reason that most treaties are made subject to
the scrutiny and consent of a department of the government other than that which
negotiated them.

The last step in the treaty-making process is the exchange of the instruments of
ratification, which usually also signifies the effectivity of the treaty unless a different
date has been agreed upon by the parties. Where ratification is dispensed with and
no effectivity clause is embodied in the treaty, the instrument is deemed effective
upon its signature.

Petitioners arguments equate the signing of the treaty by the Philippine


representative with ratification. It should be underscored that the signing of the
treaty and the ratification are two separate and distinct steps in the treaty-making
process. As earlier discussed, the signature is primarily intended as a means of
authenticating the instrument and as a symbol of the good faith of the parties. It is
usually performed by the states authorized representative in the diplomatic
mission. Ratification, on the other hand, is the formal act by which a state confirms
and accepts the provisions of a treaty concluded by its representative.

It should be emphasized that under our Constitution, the power to ratify is vested in
the President, subject to the concurrence of the Senate. The role of the Senate,
however, is limited only to giving or withholding its consent, or concurrence, to the
ratification. Hence, it is within the authority of the President to refuse to submit a
treaty to the Senate or, having secured its consent for its ratification, refuse to ratify
it. Although the refusal of a state to ratify a treaty which has been signed in its
behalf is a serious step that should not be taken lightly, such decision is within the
competence of the President alone, which cannot be encroached by this Court via a
writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the
President in the performance of his official duties.

Constantino vs. Cuisia and Del Rosario

ABAYA vs. EBDANE


Facts:

The Government of Japan and the Government of the Philippines, through their
respective representatives, namely, Mr. Yoshihisa Ara, Ambassador Extraordinary
and Plenipotentiary of Japan to the Republic of the Philippines, and then Secretary of

Foreign Affairs Domingo L. Siazon, have reached an understanding concerning


Japanese loans to be extended to the Philippines. These loans were aimed at
promoting our countrys economic stabilization and development efforts.

The assailed resolution recommended the award to private respondent China Road
& Bridge Corporation of the contract for the implementation of civil works for
Contract Package No. I (CP I), which consists of the improvement/rehabilitation of
the San Andres (Codon)-Virac-Jct. Bago-Viga road, with the length of 79.818
kilometers, in the island province of Catanduanes.The DPWH caused the publication
of the Invitation to Prequalify and to Bid for the implementation of the CP I project,
in two leading national newspapers, namely, the Manila Times and Manila Standard
on November 22 and 29, and December 5, 2002.

A total of twenty-three (23) foreign and local contractors responded to the invitation
by submitting their accomplished prequalification documents on January 23, 2003.
In accordance with the established prequalification criteria, eight contractors were
evaluated or considered eligible to bid as concurred by the JBIC. Prior to the opening
of the respective bid proposals, it was announced that the Approved Budget for the
Contract (ABC) was in the amount of P738,710,563.67.

The bid goes to private respondent China Road & Bridge Corporation was corrected
from the original P993,183,904.98 (with variance of 34.45% from the ABC) to
P952,564,821.71 (with variance of 28.95% from the ABC) based on their letter
clarification dated April 21, 2004.

The petitioners anchor the instant petition on the contention that the award of the
contract to private respondent China Road & Bridge Corporation violates RA 9184,
particularly Section 31 thereof which reads:

SEC. 31. Ceiling for Bid Prices. The ABC shall be the upper limit or ceiling for the
Bid prices. Bid prices that exceed this ceiling shall be disqualified outright from
further participating in the bidding. There shall be no lower limit to the amount of
the award.

The petitioners insist that Loan Agreement is neither an international nor an


executive agreement that would bar the application of RA 9184. They point out that

to be considered a treaty, an international or an executive agreement, the parties


must be two sovereigns or States whereas in the case of Loan Agreement No. PHP204, the parties are the Philippine Government and the JBIC, a banking agency of
Japan, which has a separate juridical personality from the Japanese Government.

The respondents however contend that foreign loan agreements, including Loan
Agreement No. PH-P204, as executive agreements and, as such, should be observed
pursuant to the fundamental principle in international law of pacta sunt servanda.
The Constitution, the public respondents emphasize, recognizes the enforceability of
executive agreements in the same way that it recognizes generally accepted
principles of international law as forming part of the law of the land.34 This
recognition allegedly buttresses the binding effect of executive agreements to which
the Philippine Government is a signatory. It is pointed out by the public respondents
that executive agreements are essentially contracts governing the rights and
obligations of the parties. A contract, being the law between the parties, must be
faithfully adhered to by them. Guided by the fundamental rule of pacta sunt
servanda, the Philippine Government bound itself to perform in good faith its duties
and obligations under Loan Agreement.

Issue :

Whether or not the the loan agreement violates RA 9184.

Ruling:

The court ruled in favor of the respondents.

Significantly, an exchange of notes is considered a form of an executive agreement,


which becomes binding through executive action without the need of a vote by the
Senate or Congress. executive agreements, They sometimes take the form of
exchange of notes and at other times that of more formal documents denominated
agreements or protocols.

The fundamental principle of international law of pacta sunt servanda, which is, in
fact, embodied in Section 4 of RA 9184 as it provides that [a]ny treaty or
international or executive agreement affecting the subject matter of this Act to
which the Philippine government is a signatory shall be observed, the DPWH, as
the executing agency of the projects financed by Loan Agreement No. PH-P204,
rightfully awarded the contract for the implementation of civil works for the CP I
project to private respondent China Road & Bridge Corporation.

Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.


FACTS:
On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public
Works and Highways (DPWH) issued a Resolution No. PJHL-A-04-012. It was
approved by DPWH Acting Secretary Florante Soriquez. This resolution
recommended the award to China Road & Bridge Corporation of the contract for the
implementation of civil works for Contract Package No. I (CP I), which consists of the
improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga road, with the
lengt of 79.818 kilometers, in the island province of Catanduanes.
This Loan Agreement No. PH-204 was executed by and between the JBIC and the
Philippine Government pursuant to the exchange of Notes executed by and between
Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the
Philippines, and then Foreign Affairs Secretary Siazon, in behalf of their respective
governments.
ISSUE:
Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine
Government is a kind of a treaty.
HELD:
The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes
dated December 27, 1999 between the Japanese Government and the Philippine
Government is an executive agreement.
An exchange of notes is a record of a routine agreement that has many
similarities with the private law contract. The agreement consists of the exchange of
two documents, each of the parties being in the possession of the one signed by the
representative of the other.
treaties, agreements, conventions, charters, protocols, declarations, memoranda
of understanding, modus vivendi and exchange of notes all are refer to international
instruments binding at international law.

Although these instruments differ from each other by title, they all have common
features and international law has applied basically the same rules to all these
instruments. These rules are the result of long practice among the States, which
have accepted them as binding norms in their mutual relations. Therefore, they are
regarded as international customary law.
That case was dismissed by the SCORP last Feb. 14 2007.
What the petitioners wanted was that Foreign funded projects also undergo the
procurement process.
The dismissal of the case somehow gave justification for the delay of the
implementing rules for foreign funded projects (IRR-B) of the procurement law
If we recall the decision of the Abaya vs Ebdane was used by the DOJ when the
DOTC Secretary was asking for an opinion from the former, during the ZTE
controversy. as ruled by the Supreme Court in Abaya v. Ebdane, an exchange of
notes is considered a form of an executive agreement, which becomes binding
through executive action without need of a vote by the
Senate and that (like treaties and conventions, it is an international instrument
binding at international law,
The second issue involves an examination of the coverage of
Republic Act No. 9184, otherwise known as the Government Procurement Reform
Act. Section 4 of the said Act provides that it shall apply to:
the Procurement of infrastructure Projects, Goods and
Consulting Services, regardless of source of funds, whether local or foreign, by all
branches and instrumentalities of government, its departments, offices and
agencies, including government-owned
and/or -controlled corporations and local government units, subject to the provisions
of Commonwealth Act No. 138. Any treaty or international or executive agreement
affecting the subject matter of this Act to which the Philippine government is a
signatory shall be observed.

Pharmaceutical v. DOH, G.R. No. 173034

Pharmaceutical and Health Care Association of the Philippines vs. Duque CASE
DIGEST

Named as respondents are the Health Secretary, Undersecretaries, and Assistant


Secretaries of the Department of Health (DOH). For purposes of herein petition, the
DOH is deemed impleaded as a co-respondent since respondents issued the
questioned RIRR in their capacity as officials of said executive agency.1Executive
Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28,
1986 by virtue of the legislative powers granted to the president under the Freedom
Constitution. One of the preambular clauses of the Milk Code states that the law
seeks to give effect to Article 112 of the International Code of Marketing of
Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly
(WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the
effect that breastfeeding should be supported, promoted and protected, hence, it
should be ensured that nutrition and health claims are not permitted for breastmilk
substitutes.In 1990, the Philippines ratified the International Convention on the
Rights of the Child. Article 24 of said instrument provides that State Parties should
take appropriate measures to diminish infant and child mortality, and ensure that all
segments of society, specially parents and children, are informed of the advantages
of breastfeeding. On May 15, 2006, the DOH issued herein assailed RIRR which was
to take effect on July 7, 2006.

Issue: . Whether Administrative Order or the Revised Implementing Rules and


Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;

Held: YES

under Article 23, recommendations of the WHA do not come into force for
members,in the same way that conventions or agreements under Article 19 and
regulations under Article 21 come into force. Article 23 of the WHO Constitution
reads:
Article 23. The Health Assembly shall have authority to make recommendations to
Members with respect to any matter within the competence of the Organization
for an international rule to be considered as customary law, it must be established
that such rule is being followed by states because they consider it obligatory to
comply with such rules

Under the 1987 Constitution, international law can become part of the sphere of
domestic law either

By transformation or incorporation. The transformation method requires that an


international law be transformed into a domestic law through a constitutional
mechanism such as local legislation. The incorporation method applies when, by
mere constitutional declaration, international law is deemed to have the force of
domestic law.

Consequently, legislation is necessary to transform the provisions of the WHA


Resolutions into domestic law. The provisions of the WHA Resolutions cannot be
considered as part of the law of the land that can be implemented by executive
agencies without the need of a law enacted by the legislature

Except Sections 4 (f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective, purpose and intent of the Milk Code, constituting
reasonable regulation of an industry which affects public health and welfare and,
as such, the rest of the RIRR do not constitute illegal restraint of trade nor are
they violative of the due process clause of the Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4 (f), 11 and 46
of Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL
and VOID for being ultra vires. The Department of Health and respondents are
PROHIBITED from implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar
as the rest of the provisions of Administrative Order No. 2006-0012 is concerned.
|||

(Pharmaceutical and Health Care Ass'n v. Duque III, G.R. No. 173034, October

09, 2007)

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINESvs. HEALTH


SECRETARY FRANCISCO T. DUQUE III

FACTS: On October 28, 1986, Executive Order No. 51 (Milk Code) was issued by
President Corazon Aquino by virtue of the legislative powers granted to the
president under the Freedom Constitution. The Milk Code states that the law seeks
to give effect to Article 112 of the International Code of Marketing of Breastmilk
Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981.
From 1982 to 2006, the WHA adopted several Resolutions to the effect that
breastfeeding should be supported, promoted and protected, hence, it should be
ensured that nutrition and health claims are not permitted for breastmilk
substitutes. the Philippines ratified the International Convention on the Rights of the
Child. Article 24 of said instrument provides that State Parties should take
appropriate measures to diminish infant and child mortality, and ensure that all
segments of society, specially parents and children, are informed of the advantages
of breastfeeding. the DOH issued RIRR which was to take effect on July 7, 2006. a
petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Revised
Implementing Rules and Regulations of The Milk Code, assailing that the RIRR was
going beyond the provisions of the Milk Code, thereby amending and expanding the
coverage of said law.

ISSUE: Whether or not respondents officers of the DOH acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and in violation of the provisions of the Constitution in promulgating the
RIRR

RULING:

The Supreme Court PARTIALLY GRANTED the petition. Sections 4(f), 11 and 46 of
Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and
VOID for being ultra vires. The Department of Health and respondents are
PROHIBITED from implementing said provisions. The international instruments
pointed out by the respondents, UNRC, ICESR, CEDAW, are deemed part of the law
of the land and therefore the DOH may implement them through the RIRR.
Customary international law is deemed incorporated into our domestic system.
Custom or customary international law means a general and consistent practice of
states followed by them from a sense of legal obligation (opinio juris). Under the
1987 Constitution, international law can become part of the sphere of domestic law
either by transformation or incorporation. The transformation method requires that
an international law be transformed into a domestic law through a constitutional
mechanism such as local legislation. Generally accepted principles of international
law refers to norms of general or customary international law which are binding on
all states. The Milk Code is a verbatim reproduction of the (ICMBS), but it did not

prohibit advertising or other forms of promotion to the general public of products.


Instead, the Milk Code expressly provides that advertising, promotion, or other
marketing materials may be allowed if such materials are duly authorized and
approved by the Inter-Agency Committee (IAC). In this regard, the WHA Resolutions
adopting the ICMBS are merely recommendatory and legally non-binding. This may
constitute soft law or non-binding norms, principles and practices that influence
state behavior. Respondents have not presented any evidence to prove that the
WHA Resolutions, although signed by most of the member states, were in fact
enforced or practiced by at least a majority of the member states and obligatory in
nature. The provisions of the WHA Resolutions cannot be considered as part of the
law of the land that can be implemented by executive agencies without the need of
a law enacted by the legislature. On the other hand, the petitioners also failed to
explain and prove by competent evidence just exactly how such protective
regulation would result in the restraint of trade. Since all the regulatory provisions
under the Milk Code apply equally to both manufacturers and distributors, the Court
sees no harm in the RIRR. Except Sections 4(f), 11 and 46, the rest of the provisions
of the RIRR are in consonance with the objective, purpose and intent of the Milk
Code.

NORTH COTABATO VS. GRP GR NO. 183591


FACTS: The Memorandum of Agreement on the Ancestral Domain (MOA-AD) brought
about by the Government of the republic of the Philippines (GRP) and the Moro
Islamic Liberation Front (MILF) as an aspect of Tripoli Agreement of Peace in 2001 is
scheduled to be signed in Kuala Lumpur, Malaysia.
This agreement was petitioned by the Province of North Cotabato for Mandamus
and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and
Temporary Restraining Order. The agreement mentions "Bangsamoro Juridical
Entity" (BJE) to which it grants the authority and jurisdiction over the Ancestral
Domain and Ancestral Lands of the Bangsamoro; authority and jurisdiction over all
natural resources within internal waters. The agreement is composed of two local
statutes: the organic act for autonomous region in Muslim Mindanao and the
Indigenous Peoples Rights Act (IPRA).

ISSUE: Whether or not the GRP violated the Constitutional and statutory provisions
on public consultation and the right to information when they negotiated and
initiated the MOA-AD and Whether or not the MOA-AD brought by the GRP and MILF
is constitutional

HELD:GRP violated the Constitutional and statutory provisions on public consultation


and the right to information when they negotiated and initiated the MOA-AD and it
are unconstitutional because it is contrary to law and the provisions of the
constitution thereof.

REASONING: The GRP is required by this law to carry out public consultations on
both national and local levels to build consensus for peace agenda and process and
the mobilization and facilitation of peoples participation in the peace process.

Article III (Bill of Rights)

Sec. 7. The right of people on matters of public concern shall be recognized, access
to official records and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for
policy development shall be afforded the citizen, subject to such limitations as may
be provided by law.

Article II
Sec. 28. Subject to reasonable conditions prescribed by law , that state adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.

LGC (1991), require all national agencies and officers to conduct periodic
consultations. No project or program be implemented unless such consultations are
complied with and approval mus be obtained.

Article VII (Executive Department)

Sec. 21. No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.

Article X. (Local Government)

Sec. 1. The territorial and political subdivisions of the Republic of the Philippines are
the province, cities, municipalities and barangays. There shall be autonomous
regions on Muslim Mindanao and the Cordillera as hereinafter provided.

Sec. 15. There shall be created autonomous regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities, municipalities and geographical areas
sharing common and distinctive historical and cultural heritage, economic and
social structures and other relevant characteristics within the framework of this
constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.

Section 16. The President shall exercise general supervision over autonomous
regions to ensure that laws are faithfully executed.

Sec. 18. The creation of autonomous region shall be effective when approved by a
majority of the votes cast by the constituents units in a plebiscite called for the
purpose, provided that only provinces, cities and geographic areas voting
favourably in such plebiscite shall be included in the autonomous region.

Sec. 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide
for legislative powers over:
1. Administrative organization;
2. Creation of sources of revenues;
3. Ancestral domain and natural resources;
4. Personal, family, and property relations;
5. Regional urban and rural planning development;
6. Economic, social, and tourism development;

7. Educational policies;
8. Preservation and development of the cultural heritage; and
9. Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region.

The President has sole authority in the treaty-making.

ARTICLE XVII (AMENDMENTS OR REVISIONS)

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
1. The Congress, upon a vote of three-fourths of all its Members; or
2. A constitutional convention.

Section 4. Any amendment to, or revision of, this Constitution under Section 1
hereof shall be valid when ratified by a majority of the votes cast in a plebiscite
which shall be held not earlier than sixty days nor later than ninety days after the
approval of such amendment or revision.

MOA-AD states that all provisions thereof which cannot be reconciled with the
present constitution and laws shall come into force upon signing of a
comprehensive compact and upon effecting the necessary changes to the legal
framework. The presidents authority is limited to proposing constitutional
amendments. She cannot guarantee to any third party that the required
amendments will eventually be put in place nor even be submitted to a plebiscite.
MOA-AD itself presents the need to amend therein.

G.R. No. 159618

February 1, 2011

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and
Rep. LIZA L. MAZA, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his
capacity as Secretary of Foreign Affairs, Respondents.
VELASCO, JR., J.:
Facts:

Petitioner Bayan Muna is a duly registered party-list group established to represent


the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the
Secretary of Foreign Affairs during the period material to thiscase. Respondent
Alberto Romulo was impleaded in his capacity as then Executive Secretary.
Rome Statute of the International Criminal Court. Having a key determinative
bearing on this case is the Rome Statute establishing the International Criminal
Court (ICC) with the power to exercise its jurisdiction over persons for the
mostserious crimes of international concern and shall be complementary to the
national criminal jurisdictions

Theserious crimes adverted to cover those considered grave under international


law, such as genocide, crimes againsthumanity, war crimes, and crimes of
aggression.On December 28, 2000, the RP, through Charge dAffaires
Enrique A. Manalo, signed the Rome Statute which, by itsterms,is subject to
ratification, acceptance or approval by the signatory states. As of the filing of the
instant petition, only 92 out of the 139 signatory countries appear to have
completed the ratification, approval and concurrence process. The Philippines is not
among the 92.

Issue: Whether or not the RP-US Non Surrender Agreement is void ab initio for
contracting obligations that are either immoral or otherwise at variance with
universally recognized principles of international law.

Held: No. Petitioner urges that theAgreement be struck down as void ab initio for
imposing immoral obligations and/or being at variance with allegedly universally
recognized principles of international law. The immoral aspect proceedsfrom the

fact that the Agreement, as petitioner would put it, leaves criminals immune from
responsibility for unimaginable atrocities that deeply shock the conscience of
humanity; it precludes our country from delivering an American criminal to the ICC.

The above argument is a kind of recycling of petitioners earlier position, which, as


already discussed, contends that the RP, by entering into the Agreement, virtually
abdicated its sovereignty and in theprocess undermined its treaty obligations under
the Rome Statute, contrary to international law principles.

The Court is not persuaded. Suffice it to state in this regard that the non-surrender
agreement, as aptly described by the Solicitor General, is an assertion by the
Philippines of its desire to try and punish crimes under its national law. The
agreement is a recognition of the primacy and competence of the countrys judiciary
to try offenses under its national criminal laws and dispense justice fairly and
judiciously. Petitioner, labors under the erroneous impression that the Agreement
would allow Filipinos and Americans committing high crimes of international concern
to escape criminal trial and punishment. This is manifestly incorrect. Persons who
may have committed acts penalized under the Rome Statute can be prosecuted and
punished in the Philippines or in the US; or with the consent of the RP or the US,
before the ICC, assuming that all the formalities necessary to bind both countries to
the Rome Statute have been met.

Perspective wise, what the Agreement contextually prohibits is the surrender by


either party of individuals to international tribunals, like the ICC, without the
consent of the other party, which may desire to prosecute the crime under its
existing laws. With this view, there is nothing immoral or violative of international
law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant
to the non-surrender agreement over an offense considered criminal by both
Philippine laws and the Rome Statute

International Agreements; treaties and executive agreements. Under international


law, there is no difference between treaties and executive agreements in terms of
their binding effects on the contracting states concerned, as long as the negotiating
functionaries have remained within their powers. However, a treaty has greater
dignity than an executive agreement, because its constitutional efficacy is beyond
doubt, a treaty having behind it the authority of the President, the Senate, and the
people; a ratified treaty, unlike an executive agreement, takes precedence over any

prior statutory enactment. Petitioner, in this case, argues that the Non-Surrender
Agreement between the Philippines and the US is of dubious validity, partaking as it
does of the nature of a treaty; hence, it must be duly concurred in by the Senate.
Petitioner relies on the case, Commissioner of Customs v. Eastern Sea Trading, in
which the Court stated: international agreements involving political issues or
changes of national policy and those involving international arrangements of a
permanent character usually take the form of treaties; while those embodying
adjustments of detail carrying out well established national policies and traditions
and those involving arrangements of a more or less temporary nature take the form
of executive agreements. According to petitioner, the subject of the Agreement
does not fall under any of the subject-categories that are enumerated in the Eastern
Sea Trading case that may be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights, patent rights, trademark
and copyright protection, postal and navigation arrangements and settlement of
claims. The Supreme Court held, however, that the categorization of subject
matters that may be covered by international agreements mentioned in Eastern Sea
Trading is not cast in stone. There are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or an executive agreement as an
instrument of international relations. The primary consideration in the choice of the
form of agreement is the parties intent and desire to craft an international
agreement in the form they so wish to further their respective interests. The matter
of form takes a back seat when it comes to effectiveness and binding effect of the
enforcement of a treaty or an executive agreement, as the parties in either
international agreement each labor under the pacta sunt servanda principle.

International Agreements; limitations on sovereignty. The RP, by entering into the


Agreement, does thereby abdicate its sovereignty, abdication being done by its
waiving or abandoning its right to seek recourse through the Rome Statute of the
ICC for erring Americans committing international crimes in the country. As it were,
the Agreement is but a form of affirmance and confirmation of the Philippines
national criminal jurisdiction. National criminal jurisdiction being primary, it is
always the responsibility and within the prerogative of the RP either to prosecute
criminal offenses equally covered by the Rome Statute or to accede to the
jurisdiction of the ICC. Thus, the Philippines may decide to try persons of the US,
as the term is understood in the Agreement, under our national criminal justice
system; or it may opt not to exercise its criminal jurisdiction over its erring citizens
or over US persons committing high crimes in the country and defer to the
secondary criminal jurisdiction of the ICC over them. In the same breath, the US
must extend the same privilege to the Philippines with respect to persons of the
RP committing high crimes within US territorial jurisdiction. By their nature, treaties
and international agreements actually have a limiting effect on the otherwise
encompassing and absolute nature of sovereignty. By their voluntary act, nations

may decide to surrender or waive some aspects of their state power or agree to
limit the exercise of their otherwise exclusive and absolute jurisdiction. The usual
underlying consideration in this partial surrender may be the greater benefits
derived from a pact or a reciprocal undertaking of one contracting party to grant the
same privileges or immunities to the other.

China National Machinery v. Santamaria


Facts: On 14 September 2002, petitioner China National Machinery & Equipment
Corp. (Group) (CNMEG), represented by its chairperson, Ren Hongbin, entered into a
Memorandum of Understanding with the North Luzon Railways Corporation
(Northrail), represented by its president, Jose L. Cortes, Jr. for the conduct of a
feasibility study on a possible railway line from Manila to San Fernando, La Union
(the Northrail Project).
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the
Department of Finance of the Philippines (DOF) entered into a Memorandum of
Understanding (Aug 30 MOU), wherein China agreed to extend Preferential Buyers
Credit to the Philippine government to finance the Northrail Project. 3 The Chinese
government designated EXIM Bank as the lender, while the Philippine government
named the DOF as the borrower. Under the Aug 30 MOU, EXIM Bank agreed to
extend an amount not exceeding USD 400,000,000 in favor of the DOF, payable in
20 years, with a 5-year grace period, and at the rate of 3% per annum.
On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui
(Amb. Wang), wrote a letter to DOF Secretary Jose Isidro Camacho (Sec. Camacho)
informing him of CNMEGs designation as the Prime Contractor for the Northrail
Project.
On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for
the construction of Section I, Phase I of the North Luzon Railway System from
Caloocan to Malolos on a turnkey basis (the Contract Agreement). 7 The contract
price for the Northrail Project was pegged at USD 421,050,000.
On 26 February 2004, the Philippine government and EXIM Bank entered into a
counterpart financial agreement Buyer Credit Loan Agreement No. BLA 04055 (the
Loan Agreement). In the Loan Agreement, EXIM Bank agreed to extend Preferential
Buyers Credit in the amount of USD 400,000,000 in favor of the Philippine
government in order to finance the construction of Phase I of the Northrail Project.
On 13 February 2006, respondents filed a Complaint for Annulment of Contract and
Injunction with Urgent Motion for Summary Hearing to Determine the Existence of
Facts and Circumstances Justifying the Issuance of Writs of Preliminary Prohibitory
and Mandatory Injunction and/or TRO against CNMEG, the Office of the Executive
Secretary, the DOF, the Department of Budget and Management, the National
Economic Development Authority and Northrail. The case was filed before the
Regional Trial Court, National Capital Judicial Region, Makati City, Branch 145 (RTC
Br. 145). In the Complaint, respondents alleged that the Contract Agreement and
the Loan Agreement were void for being contrary to (a) the Constitution; (b)
Republic Act No. 9184 (R.A. No. 9184), otherwise known as the Government

Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as the
Government Auditing Code; and (d) Executive Order No. 292, otherwise known as
the Administrative Code.
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEGs Motion to
Dismiss and setting the case for summary hearing to determine whether the
injunctive reliefs prayed for should be issued. CNMEG then filed a Motion for
Reconsideration, which was denied by the trial court in an Order dated 10 March
2008. Thus, CNMEG filed before the CA a Petition for Certiorari with Prayer for the
Issuance of TRO and/or Writ of Preliminary Injunction dated 4 April 2008.
the appellate court dismissed the Petition for Certiorari. Subsequently, CNMEG filed
a Motion for Reconsideration, which was denied by the CA in a Resolution dated 5
December 2008.
Petitioners Argument: Petitioner claims that the EXIM Bank extended financial
assistance to Northrail because the bank was mandated by the Chinese government,
and not because of any motivation to do business in the Philippines, it is clear from
the foregoing provisions that the Northrail Project was a purely commercial
transaction.
Respondents Argument: respondents alleged that the Contract Agreement and
the Loan Agreement were void for being contrary to (a) the Constitution; (b)
Republic Act No. 9184 (R.A. No. 9184), otherwise known as the Government
Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as the
Government Auditing Code; and (d) Executive Order No. 292, otherwise known as
the Administrative Code.
Issues: Whether or not petitioner CNMEG is an agent of the sovereign Peoples
Republic of China.
Whether or not the Northrail contracts are products of an executive agreement
between two sovereign states.
Ruling:
The instant Petition is DENIED. Petitioner China National Machinery &
Equipment Corp. (Group) is not entitled to immunity from suit, and the Contract
Agreement is not an executive agreement. CNMEGs prayer for the issuance of a TRO
and/or Writ of Preliminary Injunction is DENIED for being moot and academic.
The Court explained the doctrine of sovereign immunity in Holy See v.
Rosario, to wit:
There are two conflicting concepts of sovereign immunity, each widely held and
firmly established. According to the classical or absolute theory, a sovereign
cannot, without its consent, be made a respondent in the courts of
another sovereign. According to the newer or restrictive theory, the immunity
of the sovereign is recognized only with regard to public acts or acts jure
imperii of a state, but not with regard to private acts or acts jure
gestionis. (Emphasis supplied; citations omitted.)
As it stands now, the application of the doctrine of immunity from suit has been
restricted to sovereign or governmental activities (jure imperii). The mantle of state
immunity cannot be extended to commercial, private and proprietary acts (jure
gestionis).

Since the Philippines adheres to the restrictive theory, it is crucial to ascertain


the legal nature of the act involved whether the entity claiming immunity
performs governmental, as opposed to proprietary, functions. As held in United
States of America v. Ruiz
Admittedly, the Loan Agreement was entered into between EXIM Bank and the
Philippine government, while the Contract Agreement was between Northrail and
CNMEG. Although the Contract Agreement is silent on the classification of the legal
nature of the transaction, the foregoing provisions of the Loan Agreement, which is an
inextricable part of the entire undertaking, nonetheless reveal the intention of the
parties to the Northrail Project to classify the whole venture as commercial or
proprietary in character.
Thus, piecing together the content and tenor of the Contract Agreement, the
Memorandum of Understanding dated 14 September 2002, Amb. Wangs letter
dated 1 October 2003, and the Loan Agreement would reveal the desire of CNMEG
to construct the Luzon Railways in pursuit of a purely commercial activity performed
in the ordinary course of its business.

1987 Constitution, Art 2, Sec 2


Section 2. The Philippines renounces war as an instrument of national policy, adopts
the generally accepted principles of international law as part of the law of the land
and adheres to the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations.

TAADA VS. ANGARA 272 SCRA 18

Facts

On April 15, 1994, the Philippine Government represented by its Secretary of the
Department of Trade and Industry signed the Final Act binding the Philippine
Government to submit to its respective competent authorities the WTO (World Trade
Organization) Agreements to seek approval for such. On December 14, 1994,
Resolution No. 97 was adopted by the Philippine Senate to ratify the WTO
Agreement.

This is a petition assailing the constitutionality of the WTO agreement as it violates


Sec 19, Article II, providing for the development of a self reliant and independent

national economy, and Sections 10 and 12, Article XII, providing for the Filipino
first policy.

Issue

Whether or not the Resolution No. 97 ratifying the WTO Agreement is


unconstitutional.

Held:
The Supreme Court ruled the Resolution No. 97 is not unconstitutional. While the
constitution mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with
the rest of the world on the bases of equality and reciprocity and limits protection of
Filipino interests only against foreign competition and trade practices that are
unfair. In other words, the Constitution did not intend to pursue an isolationalist
policy. Furthermore, the constitutional policy of a self-reliant and independent
national economy does not necessarily rule out the entry of foreign investments,
goods and services. It contemplates neither economic seclusion nor mendicancy
in the international community.

The Senate, after deliberation and voting, gave its consent to the WTO Agreement
thereby making it a part of the law of the land. The Supreme Court gave due
respect to an equal department in government. It presumes its actions as regular
and done in good faith unless there is convincing proof and persuasive agreements
to the contrary. As a result, the ratification of the WTO Agreement limits or restricts
the absoluteness of sovereignty. A treaty engagement is not a mere obligation but
creates a legally binding obligation on the parties. A state which has contracted
valid international obligations is bound to make its legislations such modifications as
may be necessary to ensure the fulfillment of the obligations undertaken

MIJARES V. RANADA (2005)


Facts:

Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom suffered human
rights violations during the Marcos era, obtained a Final Judgment in their favor
against the Estate of the late Ferdinand Marcos amounting to roughly $1.9B in
compensatory and exemplary damages for tortuous violations of international law in
the US District Court of Hawaii. This Final Judgment was affirmed by the US Court of
Appeals.

As a consequence, Petitioners filed a Complaint with the RTC Makati for the
enforcement of the Final Judgment, paying P410 as docket and filing fees based on
Rule 141, 7(b) where the value of the subject matter is incapable of pecuniary
estimation. The Estate of Marcos however, filed a MTD alleging the non-payment of
the correct filing fees. RTC Makati dismissed the Complaint stating that the subject
matter was capable of pecuniary estimation as it involved a judgment rendered by a
foreign court ordering the payment of a definite sum of money allowing for the easy
determination of the value of the foreign judgment. As such, the proper filing fee
was P472M, which Petitioners had not paid.

Issue: Whether or not the amount paid by the Petitioners is the proper filing fee.

Ruling:

Yes, but on a different basisamount merely corresponds to the same amount


required for other actions not involving property. RTC Makati erred in concluding
that the filing fee should be computed on the basis of the total sum claimed or the
stated value of the property in litigation. The Petitioners Complaint was lodged
against the Estate of Marcos but it is clearly based on a judgment, the Final
Judgment of the US District Court. However, the Petitioners err in stating that the
Final Judgment is incapable of pecuniary estimation because it is so capable. On this
point, Petitioners state that this might lead to an instance wherein a first level court
(MTC, MeTC, etc.) would have jurisdiction to enforce a foreign judgment. Under the
B.P.129, such courts are not vested with such jurisdiction. 33 of B.P.129 refers to
instances wherein the cause of action or subject matter pertains to an assertion of
rights over property or a sum of money. But here, the subject matter is the foreign
judgment itself. 16 of B.P.129 reveals that the complaint for enforcement of
judgment even if capable of pecuniary estimation would fall under the jurisdiction of
the RTCs. Thus, the Complaint to enforce the US District Court judgment is one
capable of pecuniary estimations but at the same time, it is also an action based on
judgment against an estate, thus placing it beyond the ambit of 7(a) of Rule 141.

What governs the proper computation of the filing fees over Complaints for the
enforcement of foreign judgments is 7(b)(3), involving other actions not involving
property.

INTERNATIONAL STATUS OF SOUTH-WEST AFRICA

Advisory Opinion of 11 July 1950

The question concerning the International States of South West Africa had been
referred for an advisory opinion to the Court by the General Assembly of the United
Nations (G.A. resolution of 6 December 1949).

The Court decided unanimously that South-West Africa was a territory under the
international Mandate assumed by the Union of South Africa on December 17th,
1920;

by 12 votes to 2 that the Union of South Africa continued to have the international
obligations resulting from the Mandate, including the obligation to submit reports
and transmit petitions from the inhabitants of that Territory, the supervisory
functions to be exercised by the United Nations and the reference to the Permanent
Court of International Justice to be replaced by reference to the International Court
of Justice, in accordance with Article 7 of the Mandate and Article 37 of the Statute
of the Court;

unanimously that the provisions of Chapter XII of the Charter were applicable to the
Territory of South-West Africa in the sense that they provided a means by which the
Territory may be brought under the Trusteeship system;

by 8 votes to 6 that the Charter did not impose on the Union of South Africa a legal
obligation to place the Territory under Trusteeship;

and finally, unanimously that the Union of South Africa was not competent to modify
the international status of South-West Africa, such competence resting with the
Union acting with the consent of the United Nations.

**

The circumstances in which the Court was called upon to give its opinion were the
following:

The Territory of South-West Africa was one of the German overseas possessions in
respect of which Germany, by Article 119 of the Treaty of Versailles renounced all
her rights and titles in favour of the Principal Allied and Associated Powers. After the
war of 1914-1918 this Territory was placed under a Mandate conferred upon the
Union of South Africa which was to have full power of administration and legislation
over the Territory as an integral portion of the Union. The Union Government was to
exercise an international Sanction of administration on behalf of the League, with
the object of promoting the well-being and development of the inhabitants.

After the second world war, the Union of South Africa, alleging that the Mandate had
lapsed, sought the recognition of the United Nations to the integration of the
Territory in the Union.

The United Nations refused their consent to this integration and invited the Union of
South Africa to place the Territory under Trusteeship, according to the provisions of
Chapter XII of the Charter.

The Union of South Africa having refused to comply, the General Assembly of the
United Nations, on December 6th, 1949, adopted the following resolution:

The General Assembly,

Recalling its previous resolutions 65 (I) of 14 December 1946, 141 (II) of 1


November 1947 and 227 (III) of 26 November 1948 concerning the Territory of
South-West Africa,

Considering that it is desirable that the General Assembly, for its further
consideration of the question, should obtain an advisory opinion on its legal aspects,

1. Decides to submit the following questions to the International Court of Justice


with a request for an advisory opinion which shall be transmitted to the General
Assembly before its fifth regular session, if possible:

"What is the international status of the Territory of South-West Africa and what are
the international obligations of the Union of South Africa arising therefrom, in
particular:

"(a) Does the Union of South Africa continue to have international obligations under
the Mandate for South-West Africa and, if so, what are those obligations?

"(b) Are the provisions of Chapter XII of the Charter applicable and, if so, in what
manner, to the Territory of South-West Africa?

"(c) Has the Union of South Africa the competence to modify the international status
of the Territory of South West Africa, or, in the event of a negative reply, where does
competence rest to determine and modify the international status of the Territory?"

2. Requests the Secretary-General to transmit the present resolution to the


International Court of Justice, in accordance with Article 65 of the Statute of the
Court, accompanied by all documents likely to throw light upon the question.

The Secretary-General shall include among these documents the text of article 22 of
the Covenant of the League of Nations; the text of the Mandate for German South-

West Africa, confirmed by the Council of the League on 17 December 1920; relevant
documentation concerning the objectives and the Sanctions of the Mandates
System; the text of the resolution adopted by the League of Nations on the question
of Mandates on 18 April 1946; the text of Articles 77 and 80 of the Charter and data
on the discussion of these Articles in the San Francisco Conference and the General
Assembly; the report of the Fourth Committee and the official records, including the
annexes, of the consideration of the question of South-West Africa at the fourth
session of the General Assembly.

**

In its opinion the Court examined first if the Mandate conferred by the Principal
Allied and Associated Powers on His Britannic Majesty, to be exercised on his behalf
by the Union of South Africa, over the Territory of South-West Africa was still in
existence. The Court declared that the League was not a "mandator" in the sense in
which this term is used in the national law of certain states. The Mandate had only
the name in common with the several notions of mandate in national law. The
essentially international character of the functions of the Union appeared from the
fact that these functions were subject to the supervision of the Council of the
League and to the obligation to present annual reports to it; it also appeared from
the fact that any Member of the League could submit to the Permanent Court of
International Justice any dispute with the Union Government relating to the
interpretation or the application of the provisions of the Mandate.

The international obligations assumed by the Union of South Africa were of two
kinds. One kind was directly related to the administration of the Territory and
corresponded to the sacred trust of civilization referred to in article 22 of the
Covenant; the other related to the machinery for implementation and was closely
linked to the supervision and control of the League. It corresponded to the
"securities for the performance of this trust" referred to in the same Article.

The obligations of the first group represent the very essence of the sacred trust of
civilization. Their raison d'tre and original object remain. Since their fulfilment did
not depend on the existence of the League of Nations, they could not be brought to
an end merely because this supervisory organ ceased to exist. This view is

confirmed by Article 80, paragraph 1, of the Charter, maintaining the rights of


States and peoples and the terms of existing international instruments until the
territories in question are placed under the trusteeship system. Moreover, the
resolution of the League of Nations of April 18, 1946, said that the League's
functions with respect to mandated territories would come to an end; it did not say
that the Mandates themselves came to an end.

By this Resolution the Assembly of the League of Nations manifested its


understanding that the Mandates would continue in existence until "other
arrangements" were established and the Union of South Africa, in declarations made
to the League of Nations as well as to the United Nations, had recognized that its
obligations under the Mandate continued after the disappearance of the League.
Interpretation placed upon legal instruments by the parties to them, though not
conclusive as to their meaning, have considerable probative value when they
contain recognition by a party of its own obligations under an instrument.

With regard to the second group of obligations, the Court said that some doubts
might arise from the fact that the supervisory functions of the League with regard to
mandated territories not placed under the new trusteeship system were neither
expressly transferred to the United Nations, nor expressly assumed by that
Organization. Nevertheless, the obligation incumbent upon a Mandatory State to
accept international supervision and to submit reports is an important part of the
Mandates System. It could not be concluded that the obligation to submit to
supervision had disappeared merely because the supervisory organ had ceased to
exist when the United Nations had another international organ performing similar,
though not identical, supervisory functions.

These general considerations were confirmed by Article 80, paragraph 1, of the


Charter, which purports to safeguard not only the rights of States, but also the
rights of the peoples of mandated territories until trusteeship agreements were
concluded. The competence of the General Assembly of the United Nations to
exercise such supervision and to receive and examine reports is derived from the
provisions of Article 10 of the Charter, which authorizes the General Assembly to
discuss any questions on any matters within the scope of the Charter, and make
recommendations to the Members of the United Nations. Moreover, the Resolution
of April 18th, 1946, of the Assembly of the League of Nations presupposes that the
supervisory functions exercised by the League would be taken over by the United
Nations.

The right of petition was not mentioned in the Covenant or the Mandate, but was
organized by a decision of the Council of the League. The Court was of opinion that
this right which the inhabitants of South-West Africa had thus acquired, was
maintained by Article 80, paragraph 1, of the Charter, as this clause was interpreted
above. The Court was therefore of the opinion that petitions are to be transmitted
by the Government of the Union to the General Assembly of the United Nations,
which is legally qualified to deal with them.

Therefore, South-West Africa is still to be considered a territory held under the


Mandate of December 17th, 1920. The degree of supervision by the General
Assembly should not exceed that which applied under the Mandates System. These
observations apply to annual reports and petitions.

Having regard to Article 37 of the Statute of the International Court of Justice and
Article 80, paragraph 1, of the Charter, the Court was of opinion that this clause in
the Mandate was still in force, and therefore that the Union of South Africa was
under an obligation to accept the compulsory jurisdiction of the Court according to
those provisions.

With regard to question (b) the Court said that Chapter XII of the Charter applied to
the Territory of South-West Africa in this sense, that it provides a means by which
the Territory may be brought under the trusteeship system.

With regard to the second part of the question, dealing with the manner in which
those provisions are applicable, the Court said that the provisions of this chapter did
not impose upon the Union of South Africa an obligation to put the Territory under
Trusteeship by means of a Trusteeship Agreement. This opinion is based on the
permissive language of Articles 75 and 77. These Articles refer to an "agreement"
which implies consent of the parties concerned. The fact that Article 77 refers to the
"voluntary" placement of certain Territories under Trusteeship does not show that
the placing of other territories under Trusteeship is compulsory. The word
"voluntary" used with respect to territories in category (c) in Article 77 can be
explained as having been used out of an abundance of caution and as an added
assurance of free initiative to States having territories falling within that category.

The Court considered that if Article 80, paragraph 2 had been intended to create an
obligation for a Mandatory State to negotiate and conclude an agreement, such

intention would have been expressed in a direct manner. It considered also that this
article did not create an obligation to enter into negotiations with a view to
concluding a Trusteeship Agreement as this provision expressly refers to delay or
postponement "of the negotiation and conclusion", and not to negotiations only.
Moreover, it refers not merely to territories held under mandate but also to other
territories. Finally the obligation merely to negotiate does not of itself assure the
conclusion of Trusteeship Agreements. It is true that the Charter has contemplated
and regulated only one single system, the international Trusteeship system. If it may
be concluded that it was expected that the mandatory States would follow the
normal course indicated by the Charter and conclude Trusteeship Agreements, the
Court was unable to deduce from these general considerations any legal obligation
for mandatory States to conclude or negotiate such agreements. It is not for the
Court to pronounce on the political or moral duties which these considerations may
involve.

With regard to question (c) the Court decided that the Union had no competence to
modify unilaterally the international status of the Territory. It repeated that the
normal way of modifying the international status of the Territory would be to place it
under the Trusteeship System by means of a Trusteeship Agreement, in accordance
with the provisions of Chapter XII of the Charter.

Article 7 of the Mandate required the authorization of the Council of the League for
any modifications of its terms. In accordance with the reply given to question (a) the
Court said that those powers of supervision now belong to the General Assembly of
the United Nations. Articles 79 and 85 of the Charter required that a trusteeship
agreement be approved by the General Assembly. By analogy it could be inferred
that the same procedure was applicable to any modification of the international
status of a territory under Mandate which would not have for its purpose the placing
of the territory under the trusteeship system.

Moreover, the Union of South Africa itself decided to submit the question of the
future international status of the territory to the "judgment" of the General
Assembly as the "competent international organ". In so doing, the Union recognised
the competence of the General Assembly in the matter. On the basis of these
considerations, the Court concluded that competence to determine and modify the
international status of the Territory rested with the Union, acting in agreement with
the United Nations.

Sir Arnold McNair and Judge Read appended to the Court's Opinion a statement of
their separate opinions.

Availing themselves of the right conferred on them by Article 57 of the Statute,


Judges Alvarez, De Visscher and Krylov appended to the Opinion statements of their
dissenting opinions.

Vice-President Guerrero declared that he could not concur in the Court's opinion on
the answer to question (b). For him, the Charter imposed on the South African Union
an obligation to place the Territory under Trusteeship. On this point and on the text
in general, he shared the views expressed by Judge De Visscher.

Judges Zoricic and Badawi Pasha declared that they were unable to concur in the
answer given by the Court to the second part of the question under letter (b) and
declared that they shared in the general views expressed on this point in the
dissenting opinion of Judge De Visscher.

The Court's opinion was given in a public hearing. Oral statements were presented
on behalf of the Secretary-General of the United Nations by the Assistant SecretaryGeneral in charge of the Legal Department, and on behalf of the Governments of
the Philippines and of the Union of South Africa.

SEPARATE OPINION BY SIR ARNOLD McNAIR


I concur in the Replies given by the majority of the Court to the
General Question and to Questions (b) and (c). As to Question (a), I
regret that 1 differ as to the obligation to make reports and as to the
transfer of the administrative supervision of the Council of the
League of Nations (including its Rules of Procedure in respect of
Petitions) to the United Nations. As my approach to the main
problems differs somewhat from that of the majority, I shall give my
own reasons for answering each question, except in regard to
Question (b).

General Question, and Question (a)


The crucial problems raised by Question (a) submitted to the Court
are : What is the effect of the dissolution of the League of Nations in
April, 1946, upon the Mandate for South-West Africa, and which, if
any, of the obligations arising from it are still binding upon the Union
of South Africa (which I shall also refer to as "the Union").
The solution submitted by Counsel for the Union Government for the
first of these problems can be .stated very simply : the Mandate is
based on the analogy of the contract of mandate in private law, the
League being the Mandator and the Union the Mandatory ; the
relationship cannot subsist without a Mandator at one end and a
Mandatory at the other ; "as between the League and the Union
Government, the Mandate therefore came to an end, and that
means that, as from the dissolution of the League, there has been
no Mandate" ; "the Mandates lapsed and the Covenant itself ceased
to be a legally valid document" ; and "the dissolution of the League
had the effect of extinguishing all international legal rights and
obligations under the Mandates System". This conclusion left it to be
inferred that the Union Government would thereupon be free to
regulate the future status of South-West Africa as a domestic matter.
For three separate reasons I have formed the opinion that a
Mandate is a more durable and a more complex institution than this
solution suggests, and I cannot accept it. My reasons rest on :
[p147]
1. The legal nature of the Mandates System.
2. The objective character of Article 22 of the Covenant of the
League of Nations.
3. The terms of the Mandate for South-West Africa and their legal
nature.
***

I. The legal nature of the Mandates System. The principal documents


responsible for the creation of the Mandates System are Article 22 of
the Covenant of the League of Nations and the several Mandates
confirmed in pursuance of it by the Council of the League. The main
rule of policy proclaimed by Article 22 of the Covenant is that to
certain territories "which are inhabited by peoples not yet able to
stand by themselves under the strenuous conditions of the modern
world, there should be applied the principle that the well-being and
development of such peoples form a sacred trust of civilization and
that securities for the performance of this trust should be embodied
in this Covenant". This policy was applied to certain colonies and
territories, including South-West Africa, "which, as a consequence of
the [then] late war have ceased to be under the sovereignty of the
States which formerly governed them". The earliest document (or at
any rate one of the earliest documents to contain an exposition of
this new policy is the Memorandum by General Smuts, called "The
League of Nations : A Practical Suggestion", which will be found in
Volume II, pages 23-60, of Hunter Miller's book, "The Drafting of the
Covenant". This Memorandum, so far as the Mandates System is
concerned, deals with policy and principles rather than with legal
machinery. Its author held the view that the "authority, control or
administration" of these dependent territories should be vested in
the League, but that, as "joint international administration in so far
as it has been applied to territories or peoples, has been found
wanting wherever it has been tried", it would be preferable that the
League, instead of exercising these powers itself, should delegate
them to a "mandatory State". Beyond that the Memorandum does
not discuss the legal nature of the relations between the League and
the Mandatory. From page 508 of Volume 1 of the same book, it
seems probable that, in the course of the preparatory work for the
treaties-of peace, the critical resolution regarding the Mandates
System was presented and adopted in English ; in the French text
there appear the words "mandat", "mandataire" and "tutelle".[p148]

What is the duty of an international tribunal when confronted with a


new legal institution the object and terminology of which are
reminiscent of the rules and institutions of private law? To what
extent is it useful or necessary to examine what may at first sight
appear to be relevant analogies in private law systems and draw
help and inspiration from them? International law has recruited and
continues to recruit many of its rules and institutions from private
systems of law. Article 38 (1) (c) of the Statute of the Court bears
witness that this process is still active, and it will be noted that this
article authorizes the Court to "apply .... (c) the general principles of
law recognized by civilized nations". The way in which international
law borrows from this source is not by means of importing private
law institutions "lock, stock and barrel", ready-made and fully
equipped with a set of rules. It would be difficult to reconcile such a
process with the application of "the general principles of law". In my
opinion, the true view of the duty of international tribunals in this
matter is to regard any features or terminology which are
reminiscent of the rules and institutions of private law as an
indication of policy and principles rather than as directly importing
these rules and institutions. I quote a sentence from a judgment by
Chief Justice Innes in the decision of the Supreme Court of South
Africa in Rex v. Christian, South African Law Reports [1924],
Appellate Division, 101, 112 :
"Article 22 [of the Covenant] describes the administration of the
territories and peoples with which it deals as a tutelage to be
exercised by the governing Power as mandatory on behalf of the
League. Those terms were probably employed, not in their strict
legal sense, but as indicating the policy which the governing
authority should pursue. The relationship between the League and
the mandatory could not with any legal accuracy be described as
that of principal and agent."
Let us then seek to discover the underlying policy and principles of
Article 22 and of the Mandates. No technical significance can be

attached to the words "sacred trust of civilization", but they are an


apt description of the policy of the authors of the Mandates System,
and the words "sacred trust" were not used here for the first time in
relation to dependent peoples (see Duncan Hall, Mandates,
Dependencies and Trusteeships, pp. 97-100). Any English lawyer
who was instructed to prepare the legal instruments required to give
effect to the policy of Article 22 would inevitably be reminded of,
and influenced by, the trust of English and American law, though he
would soon realize the need of much adaptation for the purposes of
the new international institution. Professor Brierly's opinion, stated
in the British Year Book of International Law, 1929, pages 217-219,
that the governing principle of the Mandates [p149]
System is to be found in the trust, and his quotation from an article
by M. Lepaulle, are here very much in point, and it is worth noting
that the historical basis of the legal enforcement of the English trust
is that it was something which was binding upon the conscience of
the trustee; that is why it was legally enforced. It also seems
probable that the conception of the Mandates System owes
something to the French tutelle.
Nearly every legal system possesses some institution whereby the
property (and sometimes the persons) of those who are not sui juris,
such as a minor or a lunatic, can be entrusted to some responsible
person as a trustee or tuteur or curateur. The Anglo-American trust
serves this purpose, and another purpose even more closely akin to
the Mandates System, namely, the vesting of property in trustees,
and its management by them in order that the public or some class
of the public may derive benefit or that some public purpose may be
served. The trust has frequently been used to protect the weak and
the dependent, in cases where there is "great might on the one side
and unmight on the other", and the English courts have for many
centuries pursued a vigorous policy in the administration and
enforcement of trusts.
There are three general principles which are common to all these

institutions :
(a) that the control of the trustee, tuteur or curateur over the
property is limited in one way or another ; he is not in the position of
the normal complete owner, who can do what he likes with his own,
because he is precluded from administering the property for his own
personal benefit;
(b) that the trustee, tuteur or curateur is under some kind of legal
obligation, based on confidence and conscience, to carry out the
trust or mission confided to him for the benefit of some other person
or for some public purpose ;
(c) that any attempt by one of these persons to absorb the property
entrusted to him into his own patrimony would be illegal and would
be prevented by the law.
These are some of the general principles of private law which throw
light upon this new institution, and I am convinced that in its future
development the law governing the trust is a source from which
much can be derived. The importance of the Mandates System is
marked by the fact that, after the experience of a quarter of a
century, the Charter of the United Nations made provision for an
"International Trusteeship System", which was described by a [p150]
Resolution of the Assembly of the League of April 18th, 1946, as
embodying "principles corresponding to those declared in Article 22
of the Covenant of the League".
Upon sovereignty a very few words will suffice. The Mandates
System (and the "corresponding principles" of the International
Trusteeship System) is a new institution-a new relationship
between territory and its inhabitants on the one hand and the
government which represents them internationally on the other a
new species of international government, which does not fit into the
old conception of sovereignty and which is alien to it. The doctrine of
sovereignty has no application to this new system. Sovereignty over
a Mandated Territory is in abeyance ; if and when the inhabitants of

the Territory obtain recognition as an independent State, as has


already happened in the case of some of the Mandates, sovereignty
will revive and vest in the new State. What matters in considering
this new institution is not where sovereignty lies, but what are the
rights and duties of the Mandatory in regard to the area of territory
being administered by it. The answer to that question depends on
the international agreements creating the system and the rules of
law which they attract. Its essence is that the Mandatory acquires
only a limited title to the territory entrusted to it, and that the
measure of its powers is what is necessary for the purpose of
carrying out the Mandate. "The Mandatory's rights, like the trustee's,
have their foundation in his obligations ; they are 'tools given to him
in order to achieve the work assigned to him' ; he has 'all the tools
necessary for such end, but only those'." (See Brierly, referred to
above.)
Some practical confirmation of these suggestions of the relevant
principles can be obtained from judgments delivered by the Courts
of two Mandatoriesthe Union of South Africa and the Commonwealth of Australia. (As the Reports of these decisions are riot
available everywhere, I must quote extracts from them.) In Rex v.
Christian, already cited, before the Supreme Court of South Africa,
the Honourable J. de Villiers, Judge of ,4ppeal, said :
"It is true there is no cession of the territory to the Union
Government as in the case of other possessions which formerly
belonged to Germany. By Article 257 South-West Africa is said to be
transferred to the Union Government in its capacity as mandatory.
But, as I shall show, by that is meant that the Union Government is
bound by the terms of the treaty, as well as in honour, scrupulously
to carry out the terms of the Mandate. South-West Africa is
transferred to the people of the Union not by way of absolute
property, but in the same way as a trustee is in possession of the
property of the cestui que trust or a guardian of the property of his
[p151] ward. The former has the administration and control of the

property, but the property has to be administered exclusively in the


interests of the latter. The legal terms employed in Article 22trust,
tutelage, mandatecannot be taken literally as expressing the
definite conceptions for which they stand in law. They are to be
understood as indicating rather the spirit in which the advanced
nation who is honoured with a mandate should administer the
territory entrusted to its care and discharge its duties to the
inhabitants of the territory, more especially towards the indigenous
populations. In how far the legal principles of these analogous
municipal institutions should be applied in these international
relations I shall not take upon myself to pronounce. But I may be
permitted to say that in my opinion the use of the term shows that,
in so far as those legal principles are reasonably applicable to these
novel institutions, they should loyally be applied. No doubt most
difficult questions will arise. In municipal law a principal can, e.g.,
revoke his authority at his own mere pleasure. Such is the rule.
Could this be done in the case of South-West Africa where the Union
Government, if there is a principal at all, must be considered as a
joint principal together with all the other high contracting parties ?"
(P. 121.)
And Sir J. W. Wessels, Judge of Appeal, said :
"This leaves us with the mandatory power. Now although the term
mandatory power seems to imply that the mandatory acts as the
agent of the League of Nations or of the associated powers, yet in
fact that is not so. Neither by the Treaty of Versailles nor by the
mandate of the League of Nations has the Union of South Africa
been appointed as a mere agent. There is no question here of
respondent superior...." (P. 136.)
I share this view that the legal character of the Mandates cannot be
explained by reference to the private law contract of mandate or
agency. The words "Mandate" and "Mandatory" were employed as
non-technical terms to denote that the Mandatory was doing

something "on behalf of the League", and that that is all that can be
extracted from their use. It is primarily from the principles of the
trust that help can be obtained on the side of private law.
In Ffrost v. Stevenson (1937), 58 Commonwealth Law Reports 528,
Annual Digest and Reports of Public International Law Cases, 19351937, Case No. 29, the High Court of Australia, on appeal from the
Supreme Court of New South Wales, had to decide, on a matter of
extradition, whether or not "the Mandated Territory of New Guinea
[also a C Mandate] is a place out of His Majesty's Dominions in
which His Majesty has jurisdiction....". The High Court gave an
affirmative answer. This decision involved a consider-[p152]ation of
the nature of a Mandate and the powers of a Mandatory, and the
following extracts from the judgments of Chief Justice Latham and
Mr. Justice Evatt are of interest. The former said :
"The grant of mandates introduced a new principle into international
law...." (P. 550.)
"The position of a mandatory in relation to a mandated territory
must be regarded as sui generis. The Treaty of Peace, read as a
whole, avoids cession of territory to the mandatory, and, in the
absence of definite evidence to the contrary, it must, I think, be
taken that New Guinea has not become part of the dominions of the
Crown." (P. 552.)
"The intention of this provision [Article 257 of the Treaty of Peace]
must be taken to have been to provide for the transfer of the
territory to the mandatory, but only in its capacity as a mandatory.
The mandatory, as a kind of international trustee, receives the
territory subject to the provisions of the mandate which limit the
exercise of the governmental powers of the mandatory. Thus the
article quoted, while recognizing that the territory is actually to be
transferred to the mandatory, emphasizes the conditions and
limitations upon governmental power which constitute the essence
of the mandatory system. Thus the title under which the territory is

to be held as a mandated territory is different from that under which


a territory transferred by simple cession would have been held. The
article shows that the intention was to achieve a transfer of a
territory without making that territory in the ordinary sense a
possession of the mandatory. A territory which is a 'possession' can
be ceded by a power to another power so that the latter power will
have complete authority in relation to that territory. Such a cession
by a mandatory power would be quite inconsistent with the whole
conception of a mandate. A mandated territory is not a possession
of a power in the ordinary sense." (Pp. 552, 553.)
Mr. Justice Evatt, after referring to a number of British decisions on
the status of protectorates, said :
"It is quite fallacious to infer from the fact that, in pursuance of its
international duties under the mandate, the Commonwealth of
Australia exercises full and complete jurisdiction over the territory as
though it possessed unlimited sovereignty therein, either that the
territory (a) is a British possession, or (b) is within the King's
dominions, or (c) has ever been assimilated or incorporated within
the Commonwealth or its territories...." (P. 551.)
"Therefore, it can be stated that, despite certain differences of
opinion as to such questions as sovereignty in relation to the
mandated territories, every recognized authority in international law
accepts the view that the Mandated Territory of New Guinea is not
part of the King's dominions. Over and over again this fact
[p153]has been recognized by the leading jurists of Europe including
many who have closely analyzed such matters in relation to the
organization and administration of the League of Nations." (P. 582.)
He then adopted Professor Brierly's view, referred to above, as to
'the governing principle of the Mandates System.
Reference should also be made to Mr. Justice Evatt's judgment in

Jolley v. Mainka (1933), 49 Commonwealth Law Reports 242, at


pages 264-292, Annual Digest, 1933-1934, Case No. 17, relating to
the same Mandated Territory.
***
2. The objective character of Article 22 of the Covenant of the
League of Nations
From time to time it happens that a group of great Powers, or a large
number of States both great and small, assume a power to create by
a multipartite treaty some new international rgime or status, which
soon acquires a degree of acceptance and durability extending
beyond the limits of the actual contracting parties, and giving it an
objective existence. This power is used when some public interest is
involved, and its exercise often occurs in the course of the peace
settlement at the end of a great war. In 1920 the Council of the
League had to deal with a dispute between Finland and Sweden,
Which, inter alia, involved an examination of the existing condition
of a Convention dated March 30, 1856, between France and Great
Britain on the one hand and Russia on the other, whereby Russia, in
compliance with the desire of the other two States, declared "that
the Aaland Islands shall not be fortified, and that no military or naval
base shall be maintained or created there". (This Convention was
attached to and became all integral part of the General Treaty of
Peace of the same date, made between seven States, which brought
the Crimean War to an end.) Sweden claimed that this status of
demilitarization was still in force in 1920 in spite of many
intervening events, and that she, though not a party to the
Convention or Peace Treaty of 1856, was entitled to the benefit of it;
her claim was based on the allegation of an international servitude.
As the Permanent Court of International Justice had not then come
into existence, the Council of the League set up a Commission of
Jurists; Professor F. Larnaude (President), Professor A. Struycken and
Professor Max Huber, and referred certain legal questions to them.

They received written statements and heard oral arguments on


behalf of Finland and Sweden. The Jurists rejected the argument
based on an alleged servitude and reported that the provisions of
the Convention and Treaty of 1856 for demilitarization were still in
force.[p154]
"These provisions [they said] were laid down in European interests.
They constituted a special international status. relating to military
considerations, for the Aaland Islands. It follows that until these
provisions are duly replaced by others, every State interested
[including Sweden which was not a party] has the right to insist
upon compliance with them. It also follows that any State in
possession of the Islands must conform to the obligations binding
upon it, arising out of the system of demilitarization established by
these provisions."
The Report [FN1] contains many expressions which illuminate this
conclusion, e.g.,
--------------------------------------------------------------------------------------------------------------------------[FN1] L. N. Off. Jo. Oct. 1920, Spec. Sup. No. 3.
--------------------------------------------------------------------------------------------------------------------------"The Powers have, on many occasions since 1815, and especially at
the conclusion of peace treaties, tried to create true objective law, a
real political status the effects of which are felt outside the
immediate circle of contracting parties",
and again, "the character of a settlement regulating European
interests", "European law", and "the objective nature of the
settlement".
It may seem a far cry from the Aaland Islands to South-West Africa,

but reference to this case is demanded by the high standing of the


members of the Commission and by the relevance of their reasoning
to the present problems. I may also refer to the statement by the
Permanent Court in the SS. Wimbledon case (Series A. No. 1, p. 22)
that as a result of Article 380 of the Treaty of Versailles of 1919 the
Kiel Canal "has become an international waterway intended to
provide under treaty guarantee easier access to the Baltic for the
benefit of all nations of the world"-which was referred to as "its
new regime".
The Mandates System seems to me to be an a fortiori case. The
occasion was the end of a world war. The parties to the treaties of
peace incorporating the Covenant of the League and establishing
the system numbered thirty. The public interest extended far beyond
Europe. Article 22 proclaimed "the principle that the well-being and
development of such peoples form a sacred trust of civilization and
that securities for the performance of this trust should be embodied
in the Covenant". A large part of the civilized world concurred in
opening a new chapter in the life of between fifteen and twenty
millions of people, and this article was the instrument adopted to
give effect to their desire. In my opinion, the new rgime established
in pursuance of this "principle" has more than a purely contractual
basis, and the territories subjected to it are impressed with a special
legal status, designed to last [p155] until modified in the manner
indicated by Article 22. The dissolution of the League has produced
certain difficulties, but, as I shall explain, they are mechanical
difficulties, and the policy and principles of the new institution have
survived the impact of the events of 1939 to 946, and have indeed
been reincarnated by the Charter under the name of the
"International Trusteeship System", with a new lease of life
3. The terms of the Mandate for South-West Africa and their legal
nature
What obligations and other legal effects were produced by the

Mandate for South-West Africa ? From the first paragraph of Article


22 of the Covenant it appears that German sovereignty had already
disappeared before the Mandate was granted on December 17,
1920. Nothing more is said about sovereignty. The penultimate
paragraph tells us that the Council of the League will define "the
degree of authority, control or administration to be exercised by the
Mandatory": this is not the language of sovereignty and indicates
some new relationship between a State and the territory for which it
is to become responsible a title more limited in character than the
normal title of the sovereign State, a title which is possessory rather
than proprietary.
The Mandate in this case is a document dated December 17, 1920,
whereby, after a preamble containing important recitals, the Council
of the League : "Confirming the said Mandate, defines its terms as
follows" in seven articles. Article I says that : "The territory over
which a mandate is conferred upon His Britannic Majesty for and on
behalf of the Government of the Union of South Africa .... comprises
the territory which formerly constituted the German Protectorate of
South-West Africa." Article 2 provides that : "The Mandatory shall
have full power of administration and legislation over the Territory
subject to the present Mandate as an integral portion of the Union of
South Africa, and may apply the laws of the Union of South Africa to
the territory, subject to such local modifications as circumstances
may require. The Mandatory shall promote to the utmost the
material and moral well-being and the social progress of the
inhabitants subject to the present Mandate." This language does not
make the Territory a part of the territory of the Union of South Africa,
and negatives any such inference. Article 3 relates to the slave
trade, forced labour, the traffic in arms and ammunition, and the
supply of intoxicating spirits and beverages to the natives. Article 4
prohibits the military training of the natives "otherwise than for
purposes of internal police and the local [p156] defence of the
territory", the establishment of military or naval bases and the
erection of fortifications. Article 5 provides for "freedom of

conscience and the free exercise of all forms of worship" and for the
admission, travel and residence of missionaries who are nationals of
any State Member of the League of Nations. Article 6 provides that :
"The mandatory shall make to the Council of the League of Nations
an annual report to the satisfaction of the Council, containing full
information with regard to the Territory and indicating the measures
taken to carry out the obligations assumed under Articles 2, 3, 4 and
5."
Article 7 provides that :
"The consent of the Council of the League of Nations is required for
any modification of the terms of the present Mandate.
The Mandatory agrees that, if any dispute whatever should arise
between the Mandatory and another Member of the League of
Nations relating to the interpretation or the application of the
provisions of the Mandate, such dispute, if it cannot be settled by
negotiation, shall be submitted to the Permanent Court of
International Justice provided for by Article 14 of the Covenant of the
League of Nations...."
These obligations possess two distinct characters. The provisions of
the Mandate are in part contractual 'and in part "dispositive" (upon
which term see Westlake, International Law (2nd edition), ii, pp. 60,
294). In English terminology, it is both a "contract" and a
"conveyance", that is to Say, a document which transfers or creates
rights connected with property or possession. In addition to the
personal rights and obligations referred to above, it also created
certain "real" rights and obligations. Coupled with the effect of the
assent of the Principal Allied and Associated Powers, in whose favour
Germany renounced her rights and titles over South-West Africa and
who are expressly described in the preamble of the Mandate as the
proposers of the Mandate, the Mandate transferred to the

Mandatory, or created and recognized in the hands of the


Mandatory, certain rights of possession and government
(administrative and legislative) which are valid in remerga omnes,
that is, against the whole world, or at any rate against every State
which was a Member of the League or in any other way recognized
the Mandate ; moreover, there are certain obligations binding every
State that is responsible for the control of territory and available to
other States.
In short, the Mandate created a status for South-West Africa. This
fact is important in assessing the effect of the dissolution of the
League. This statusvalid in remsupplies the element of [p157]
permanence which would enable the legal condition of the Territory
to survive the disappearance of the League, even if there were no
surviving personal obligations between the Union and other former
Members of the League. "Real" rights created by an international
agreement have a greater degree of permanence than personal
rights, because these rights acquire an objective existence which is
more resistant than are personal rights to the dislocating effects of
international events. The importance of this point is that it makes it
unnecessary to determine the respective roles of the Principal Allied
and Associated Powers and the Council of the League in the creation
of the Mandate or to consider whether those Powers became functi
oficio after the allocation and confirmation of the Mandate, as was
submitted by counsel for the Union Government, or not. As Chief
Justice Marshall said in Chirac v. Chirac (1817), 2 Wheaton 259, 277
(cited in Moore, Digest of International Law, Section 780), speaking
of a treaty which had expired :
"A right once vested does not require, for its preservation, the
continued existence of the power by which it was acquired. If a
treaty, or any other law, has performed its office by giving a right,
the expiration of the treaty or law can not extinguish that right."
***

I now turn to consider the effect of the dissolution of the League.


The dissolution of the League on April 19, 1946, did not
automatically terminate the Mandates. Each Mandate has to be
considered separately to ascertain the date and the mode of its
termination. Take the case of Palestine. It is instructive to note that
on November 29, 1947, the General Assembly of the United Nations
adopted a resolution approving a plan of partition of Palestine, which
was firmly based on the view that the Palestine Mandate still
continued, as is evident from Articles I and 2 of Part A and Article 12
of Part B of the Plan. Again, in the Peace Treaty with Italy of February
10, 1947, it was considered necessary (Article 40) that Italy should
renounce all her rights under the Mandates System and in respect of
any mandated territory.
The Mandate for South-West Africa was never formally terminated,
and I can find no events which can be said to have brought about its
termination by implication. Paragraph 3 of the Resolution of the
Assembly of the League regarding the Mandates, dated April 18,
1946, does not Say that the Mandates come to an end but that, "on
the termination of the League's existence, its functions with respect
to the Mandated Territories will come to an end".[p158]
Which then of the obligations and other legal effects resulting from
the Mandate remain to-day ? The Mandatory owed to the League
and to its Members a general obligation to carry out the terms of the
Mandate and also certain specific obligations, such as the obligation
of Article 6 to make an annual report to the Council of the League.
The obligations owed to the League itself have come to an end. The
obligations owed to former Members of the League, at any rate,
those who were Members at the date of its dissolution, subsist,
except in so far as their performance involves the actual cooperation of the League, which is now impossible. (I shall deal with
Article G and the first paragraph of Article 7 later.) Moreover, the

international status created for South-West Africa, namely that of a


territory governed by a State in pursuance of a limited title as
defined in a Mandate, subsists.
Although there is no longer any League to supervise the exercise of
the Mandate, it would be an error to think that there is no control
over the Mandatory. Every State which was a Member of the League
at the time of its dissolution still has a legal interest in the proper
exercise of the Mandate. The Mandate provides two kinds of
machinery for its supervisionjudicial, by means of the right of any
Member of the League under Article 7 to bring the Mandatory
compulsorily before the Permanent Court, and admin-istrative, by
means of annual reports and their examination by the Permanent
Mandates Commission of the League.
The judicial supervision has been expressly preserved by means of
Article 37 of the Statute of the International Court of Justice adopted
in 1945 :
"Whenever a treaty or convention in force provides for reference of
a matter to a tribunal to have been instituted by the League of
Nations, or to the Permanent Court of International Justice, the
matter shall, as between the parties to the present Statute, be
referred to the International Court of Justice."
This article effected a succession by the International Court to the
compulsory jurisdiction conferred upon the Permanent Court by
Article 7 of the Mandate ; for there can be no doubt that the
Mandate, which embodies international obligations, belongs to the
category of treaty or convention ; in the judgment of the Permanent
Court in the Mavrommatis Palestine Concessions (Jurisdiction) case,
Series A, No. 2, p. 35, the Palestine Mandate was referred to as an
"international agreement" ; and I have endeavoured to show that
the agreement between the Mandatory and other Members of the
League embodied in the Mandate is still "in force". The expression

"Member of the League of Nations"


[p159] is descriptive, in my opinion, not conditional, and does not
mean "so long as the League exists and they are Members of it" ;
their interest in the performance of the obligations of the Mandate
did not ,accrue to them merely from membership of the League, as
an examination of the content of the Mandate makes clear.
Moreover, the Statute of the International Court empowers it to call
from the parties for "any document" or "any explanations" (Article
49) ; and to entrust any "individual, body, bureau, commission or
other organization that it may select, with the task of carrying out
an enquiry..-" (Article 50). Article 94 of the Charter empowers the
Security Council of the United Nations to "make recommendations or
decide upon measures to be taken to give effect to the judgment" of
the Court, in the event of a party to a case failing to carry out a
judgment of the Court. In addition, the General Assembly or the
Security Council of the United Nations may request the Court to give
an advisory opinion on any legal question (Article 96 of the Charter).
On the other hand, the administrative supervision by the Council of
the League, as advised by the Permanent Mandates Commission,
has lapsed, including the obligation imposed by Article 22 of the
Covenant and Article 6 of the Mandate to make, in the words of the
Mandate, "to the Council of the League of Nations an annual report
to the satisfaction of the Council....". This supervision has lapsed
because the League and its Council and Permanent Mandates
Commissionthe organs which were designated (i) to receive the
reports, (ii) to be satisfied with them and (iii) to examine and advise
upon themno longer exist, so that it has become impossible to
perform this obligation. (When a particular Mandate was under
discussion by the Council, the Mandatory, if not a Member of the
Council, was invited to sit with the Council, with full power of
speaking and voting.)
But it was contended on several grounds in the statements
submitted by certain governments to the Court, that the Union of

South Africa is nevertheless under an obligation to accept the


administrative supervision of the Mandate by the United Nations,
and in particular to send annual reports to that Organization.
The first contention was that there had been an automatic
succession by the United Nations to the rights and functions of the
Council of the League in this respect; but this is pure inference, as
the Charter contains no provision for a succession such as Article 37
of the Statute of the International Court operates in the case of the
compulsory jurisdiction of the Permanent Court in regard to the
Mandates. The succession of the United Nations to the
administrative functions of the League of Nations in regard to the
Mandates could have been expressly preserved and vested in the
United Nations in a similar manner, but this was not done. At the
San Francisco Conference in May, 1945, when the Charter [p160]
was being drafted, the Union Government circulated to the
delegations present a statement intimating that in due course it
would claim "that the Mandate should be terminated and that the
Territory should be incorporated as part of the Union of South Africa"
(printed in United Nations General Assembly Official Records, 1st
session, 2nd Part, Fourth Committee, Part 1, p. 201). But either it
was hoped that in spite of this intimation the Union Government
would voluntarily elect to convert its Mandate into a Trusteeship
Agreement under Chapters XII and XIII of the Charter, or the
question of preserving the administrative supervision of the
Mandate was overlooked.
A second contention was based on the expression occurring in
Article 80, paragraph 1, of the Charter that "nothing in this Chapter
[XII] shall be construed in or of itself to alter in any manner the
rights whatsoever of any States or peoples or the terms of existing
international instruments to which Members of the United Nations
may respectively be parties". But the cause of the lapse of the
supervision of the League and of Article 6 of the Mandate is not
anything contained in Chapter XII of the Charter but is the

dissolution of the League, so that it is difficult to see the relevance


of this article.
A third contention was based on statements made on behalf of the
Union Government in letters and in the speeches of its delegates
attending meetings of the organs of the United Nations and
generally upon the conduct of that Government since the dissolution
of the League. An example of these passagesone which was
received a considerable degree of prominenceoccurs in the
following extract from a speech by Mr. Leif Egeland, delegate of the
Union Government, at a meeting of the Assembly of the League on
April 9, 1946 :
"...: it is the intention of the Union Government, at the forthcoming
session of the United Nations General Assembly in New York, to
formulate its case for according South-West Africa a status under
which it would be internationally recognized as an integral part of
the Union. As the Assembly will know, it is already administered
under the terms of the Mandate as an integral part of the Union. In
the meantime, the Union will continue to administer the Territory
scrupulously, in accordance with the obligations of the Mandate, for
the advancement and promotion of the interests of the inhabitants,
as she has done during the past six years when meetings of the
Mandates Commission could not be held.
The disappearance of those organs of the League concerned with
the supervision of Mandates, primarily the Mandates Commission
and the League Council, will necessarily preclude complete com[p161]pliance with the letter of the Mandate. The Union Government
will nevertheless regard the dissolution of the League as in no way
diminishing its obligations under the' Mandate, which it will continue
to discharge with the full and proper appreciation of its
responsibilities until such time as other arrangements are agreed
upon concerning the future status of the territory."

There are also many statements to the effect that the Union
Government will continue to administer the Territory "in the spirit of
the Mandate". These statements are in the aggregate contradictory
and inconsistent; and I do not find in them adequate evidence that
the Union Government has either assented to an implied succession
by the United Nations to the administrative supervision exercised by
the League up to the outbreak of the war in 1939, or has entered
into a new obligation towards the United Nations to revive the prewar system of supervision.
A fourth contention is based on a Resolution on the Mandates
adopted by the Assembly of the League on April 18, 1946, by virtue
of which, the Assembly
"3. Recognizes that, on the termination of the League's existence, its
functions with respect to the Mandated Territories will come to an
end, but notes that Chapters XI, XII and XIII of the Charter of the
United Nations embody principles corresponding to those declared
in Article 22 of the Covenant of the League;
4. Takes note of the expressed intentions of the Members of the
League now administering Territories under Mandate to continue to
administer them for the well-being and development of the peoples
concerned in accordance with the obligations contained in the
respective Mandates, until other arrangements have been agreed
between the United Nations and the respective Man-datory Powers."
By this Resolution the Assembly recognized that the functions of the
League had come to an end ; but it did not purport to transfer them,
with the consent of all States interested therein, to the United
Nations. I do not see how this Resolution can be construed as having
created a legal obligation by the Union to make annual reports to
the United Nations and to transfer to that Organization the pre-war
supervision of its Mandate by the League. At the most it could
impose an obligation to perform those obligations of the Mandate

and there are manywhich did not involve the activity of the
League.
In these circumstances, I cannot find any legal ground on which the
Court would be justified in replacing the Council of the League by
the United Nations for the purposes of exercising the administrative
supervision of the Mandate and the receipt and examin-[p162]ation
of reports. It would amount to imposing a new obligation upon the
Union Government and would be a piece of judicial legislation. In
saying this, I do not overlook the competence of the 7General
Assembly of the United Nations, under Article 10 of the Charter, to
discuss the Mandate for South-West Africa and to make
recommendations concerning it, but that competence depends not
upon any theory of implied succession but upon the provisions of
the Charter.
For these reasons I am of the opinion that the continuing
international obligations of the Union of South Africa under the
Mandate for South-West Africa do not include the obligation to
accept the administrative supervision of the United Nations and to
render annual reports to that Organization.
***
Question (b)
I concur in the Opinion of the majority of the Court with respect to
this question.
***
Question (c)
There remains to be considered the effect of the dissolution of the
League upon the first paragraph of Article 7 of the Mandate,
whereby "the consent of the Council of, the League of Nations is
required for any modification of the terms of the present Mandate"

a provision which appears in all the Mandates. The effect of this


paragraph is that thereby the Members of the League, as the States
interested in the Mandate, empowered the Council of the League on
their behalf to consent to any modification of the Mandate which the
Council might consider to be appropriate.
The party who was expected to bring about any modifications which
the passage of years might show to be necessary was the
Mandatory but, as I have endeavoured to show in answering
Question (a), the Mandatory's title is limited and it has no power,
acting alone, to modify the international status of the Territory,
either by incorporating it into its own territory or otherwise.
What then is the effect of the disappearance of the League and the
ensuing impossibility of obtaining the consent of its Council ? In my
opinion, the effect is that the first paragraph of Article 7 of the
Mandate has now lapsed. But this event in no way alters the quality
or amount of the Mandatory's title or enlarges its power to modify
the terms of the Mandate, because the international obligations
affecting the Territory (except those which, as I have stated, have
already lapsed) and the international status of the Territory continue
to exist. Moreover, the Charter provides one [p163] method by
which the international status of the Territory can lawfully be
modified by the Mandatory, namely, by negotiating with the United
Nations and placing it under a trusteeship agreement, as described
in Chapters XII and XIII of the Charter.
On the last day of the existence of the League, April 18, 1946, the
Assembly adopted a Resolution on the subject of Mandates of which
paragraphs 3 and 4 have been quoted above on page 112.
My reply to Question (c) is that the effect of this Resolution is that
the League and those States which were Members of it at the date
of its dissolution consented to any arrangements for the
modification of the terms of the Mandate that might be agreed

between the United Nations and the Union Government, and that
competence to determine and modify the international status of the
Territory rests with the Union of South Africa acting with the consent
of the United Nations.
{Signed) Arnold D. McNair. [p164]

Filrtiga v. Pea-Irala
Synopsis
Filrtiga v. Pea-Irala is a lawsuit filed in 1979 charging former Paraguayan official
Americo Pea-Irala with the wrongful death of Joelito Filrtiga.
Description
On April 6, 1979, in the U.S. District Court for the Eastern District of New York,
Filrtiga v. Pea-Irala was filed on behalf of Dr. Joel Filrtiga and Dolly Filrtiga
charging former Paraguayan official Americo Pea-Irala with the wrongful death of
Joelito Filrtiga. The suit was filed under a previously little-used 1789 federal
statute, the Alien Tort Claims Act, which gives foreign nationals the right to sue for
wrongful actions that violate international law.
Dolly Fitrtiga and her younger brother Joelito lived in Asuncion, Paraguay, with their
mother and father, Dr. Joel Filrtiga, a well-known physician, painter, and opponent
of Latin Americas most durable dictator, General Alfredo Stroessner. In 1976, 17year-old Joelito was abducted and later tortured to death by Americo Norberto PeaIrala, the inspector general in the Department of Investigation for the Police of
Asunsion. Dolly Filrtiga was forced out of her house in the middle of the night to
view her brothers mutilated body.
Although the district court initially stayed Peas deportation, it ultimately granted
Peas motion to dismiss the complaint and allowed his return to Paraguay, ruling
that, although the proscription of torture had become a norm of customary
international law, the court was bound to follow appellate precedents which
narrowly limited the function of international law only to relations between states.
On appeal, the circuit reversed, recognizing that foreign nationals who are victims of
international human rights violations may sue their malfeasors in federal court for
civil redress, even for acts which occurred abroad, so long as the court has personal
jurisdiction over the defendant. The court ruled that freedom from torture is
guaranteed under customary international law. This decision provides a critical
forum for human rights violations.

The Center for Constitutional Rights (CCR) attorneys had briefed the meaning of
international law in view of the post-Nuremberg emergence of an international law
of human rights applicable to individuals as well as states. CCR explored the origin
of the act as a source of federal judicial power over matters of international
dimension and its purpose in preventing the sanctuary this country offers to the
persecuted from immunizing international criminals. Todays torturers, CCR argued,
are like eighteenth century piratesenemies of all humanity (hostes humani
generis)and should pay for their crimes wherever they are found.
Asked by the court to submit an amicus brief, the State Department, influenced
perhaps by the Iran hostage crisis, supported plaintiffs view of international law and
the scope of the acts jurisdiction. The circuit court completely rejected its earlier
narrow interpretation of international law and opened the door of the federal courts
to civil actions by aliens and citizens alike for damages for human rights violations.
The decision was a precedent for claims involving an increasing number of
internationally recognized rights, including freedom from torture, slavery, genocide,
and cruel and inhuman treatment. It was been hailed by international human rights
experts in this country and abroad.
Upon remand by the circuit in June 1980, the district court granted plaintiffs motion
for a default judgment against Pea for failure to answer the complaint and referred
the case to a magistrate for determination of the damages due the Filrtiga family.
The magistrate awarded the Filrtigas over $10 million in damages. CCR attorneys
continued to investigate ways to enforce the award.

Filartiga v. Pena-Irala case brief, 630 F.2d 876 (1980)


Filartiga v. Pena-Irala
630 F.2d 876 (1980)

Alien Tort Statute (ATS) (28 U.S.C. 1350) provides: " the district courts shall have
original jurisdiction of any civil action by an alien for a tort only, committed in
violation of the law of nations or of a treaty of the United States."

This law was pretty much never used between the time it was enacted (1789), and
during the 1980s.

FACTS
Filartiga was a Paraguayan dissident. Filartiga's son was tortured and murdered by a
Paraguayan official named Pena-Irala (where does one get a name like that!?) in the
state of Paraguay.
The killing was politically motivated.
Filartigia tried to get justice in Paraguay, was unsuccessful. :(
Pena-Irala came to the US on vacation, and was sued by Filartiga (who lived in the
US) under the ATS. (Maybe he will get some justice now!)
PROCEDURAL HISTORY

The Trial Court dismissed the claim. Filartiga appealed.


Trial Court found that the "law of nations" as used in the ATS does not govern a
State's treatment of its own citizens.
The Court was stating that they did not have jurisdiction over what Paraguayan
officials did to Paraguayan citizens on Paraguayan soil.
Appellate Court reversed: (looks like he will get some justice after all!)
The Appellate Court looked to [The Paquette Habana (175 U.S. 677 (1900))], and
stated that "the law of nations" should be interpreted as customary international
law.
The Court found that under customary international law, there exists a set of
"human rights and fundamental freedoms."
The Court also noted that the extent of those rights and freedoms is debatable, but
surely includes the right to not to be tortured and killed.
Official torture is prohibited by the law of nations. (this is a good thing!)
The Court found that Filartigia actually did have a claim under the ATS since PenaIralia was accused of violating the law of nations.

Filartiga v. Pena-Irala case brief summary (2)


Filartiga v. Pena-Irala
Citation: 630 F.2d 876 (1980)

Link to Case Text: http://www.leagle.com/decision/19841437577FSupp860_11301

Quick Synopsis
Filrtiga v. Pea-Irala was a lawsuit that charged former Paraguayan official Americo
Pea-Irala with the wrongful death of Joelito Filrtiga.

Facts of the Case


Filrtiga was a Paraguayan dissident. His son was tortured and later murdered by
an official of Paraguay named Pea-Irala. These events happened in Paraguay.
The murder was said to be politically motivated.
Filrtiga attempted to get justice for the acts of Pea-Irala in the state of Paraguay,
however, he was unsuccessful.
Pea-Irala traveled to the United States for vacation and while in the US, he was
sued by Filrtiga, who at the time, lived in the United States.
Filrtiga sued under the Alien Torts Statute.
Procedural History
The trial court dismissed the claim and Filrtiga appealed.
The trial court said that the law of nations, as used in the Alien Torts Statute does
not govern a states treatment of its own people.
The trial court was basically stating that it lacked jurisdiction over what other states
officials did to its own citizens on its own soil.

Issue
Can an individual sue for a murder that happened outside of the United States that
was politically motivated?

Holding

Yes, torture by an official is prohibited under the law of nations.

Rules of Law
The Alien Torts Statute (28 U.S.C. 1350) states that the district courts shall have
original jurisdiction of any civil action by an alien for tort only, committed in
violation of the law of nations or a treaty with the United States.
Since 1980, courts have interpreted this statute to give foreign citizens the right to
seek remedies in the courts of the United States for human-rights violations for
conduct that has been committed outside of the United States.

Discussion
The appellate court reversed the holding of the trial court, looking to The Paquete
Habana (175 U.S. 677 (1900)).
The Paquete Habana stated that the law of nations should be interpreted as
customary international law, under which exists a set of human rights and
fundamental freedoms.
The extent of those rights and freedoms is debatable, however, they surely include
the right to not be tortured and the right to not be killed.
Under the Alien Tort Statute, Filartiga had a claim since Pena-Iralia was accused of
violating the laws of nations.

Why you should read this case


This case introduces and explains how to use the Alien Torts Statute.

Course: International Law

TRENDTEX TRADING CORPORATION -V- CENTRAL BANK OF NIGERIA; CA 1977


The court considered the developing international jurisdiction over commercial
activities of state bodies which might enjoy state immunity, and sought to ascertain
whether or not the Central Bank of Nigeria was entitled to immunity from suit.

Held: The key questions are those of governmental control and governmental
functions and that these are to be determined as a matter of English law, although
the English courts may have regard to the position under the law where the body is
incorporated and account can be taken of the view of the government concerned.
International law was incorporated into domestic law unless it was in conflict with
statutory provision. This enabled domestic law to respond to changes in
international law rather than it being bound by the interpretation of international
law upon a particular point when it was first decided, if international law had later
evolved. Domestic law could evolve as the incorporated international law evolved.
Lord Denning MR said: Seeing that the rules of international law have changed
and do change and that the courts have given effect to the changes without any
Act of Parliament, it follows to my mind inexorably that the rules of international
law, as existing from time to time, do form part of our English law. and we should
give effect to those changes and not be bound by any idea of stare decisis in
international law and Governments everywhere engage in activities which
although incidental in one way or another to the business of government are in
themselves essentially commercial in their nature.
Lord Denning MR said that it was necessary to look to all the evidence to see
whether the organisation in question was under government control and exercised
governmental functions in order to determine whether it was part of the State.
Shaw LJ stated that whether a particular organisation is to be accorded the status of
a department of government or not must depend upon its constitution, its powers
and duties and its activities. There could be no intermediate hybrid status occupied
by the bank where it was regarded as a government department for certain
purposes and as an ordinary commercial or financial institution for different
purposes.

CASE CONCERNING RIGHTS OF NATIONALS OF THE UNITED STATES OF AMERICA IN


MOROCCO DIGEST

The International Court of Justice,


composed as above,
after deliberation,
having regard to Article 48 of the Statute of the Court,

having regard to Articles 62 and 69 of the Rules of Court,


Makes the following Order:
Having regard to the Preliminary Objection in the case concerning
rights of nationals of the United States of America in[p110] Morocco,
filed by the United States Government on June 21st, 1951, that is to
Say, within the time-limit fixed for the filing by that Government of
the Counter-Memorial in that case ;
Having regard to the Order of June 25th, 1951, fixing August 6th,
1951, as the time-limit for the presentation by the Government of
the French Republic of a written statement of its observations and
submissions in regard to the Objection ;
Having regard to the said written statement, presented within the
time-limit fixed ;
Having regard to the decision of the Court of October 4th, 1951,
requesting the Agent for the Government of the French Republic to
clarify the capacity in which the French Republic was proceeding in
that case, and, in particular, to specify whether it was appearing
both on its own account and as Protecting Power in Morocco ;
Having regard to the letter dated October 6th, 1951, which reached
the Registry on October 9th, and of which a copy was the same day
sent to the Agent for the Government of the United States of
America, by which the Agent for the Government of the French
Republic, in answer to the Court's request, stated that the
Government of the French Republic was prepared, in order to dispel
the doubts remaining in the mind of the Government of the United
States of America, to supplement its observations and submissions
in regard to the Objection by specifying that the French Republic was
proceeding in the case both on its own account and as Protecting
Power in Morocco, the judgment of the Court to be binding upon

France and Morocco ;


Whereas by a letter dated October 22nd, 1951, which reached the
Registry on October 25th, the Agent for the Government of the
United States of America referred to the letter, dated October 6th,
from the Agent for the Government of the French Republic, and
stated that, having regard to the terms of that letter, the
Government of the United States of America was prepared to
withdraw its Objection ;
Whereas by a letter dated October 25th, 1951, a copy of the
communication from the Agent for the Government of the United
States of America was transmitted to the Agent for the Government
of the French Republic, who was requested, pursuant to Article 69 of
the Rules, to state as soon as possible whether he opposed this
withdrawal;
Whereas by a letter dated October 27th, 1951, which reached the
Registry on October 29th, the Agent for the Government of the
French Republic stated that he did not oppose the withdrawal of the
Objection ;[p111]
The Court
places on record the discontinuance by the Government of the
United States of America of the proceedings instituted by the
Preliminary Objection filed on June 21st, 1951 ;
orders that the said proceedings shall be removed from the Court's
list;
records that the proceedings on the merits, suspended by the
Objection, are resumed ;
fixes as time-limits for the filing of

the Counter-Memorial of the Government of the United States of


America, December 20th, 1951 ;
the Reply of the Government of the French Republic, February 15th,
1952 ;
the Rejoinder of the Government of the United States of America,
April 11th, 1952.
Done in English and French, the English text being authoritative, at
the Peace Palace, The Hague, this thirty-first day of October, one
thousand nine hundred and fifty-one, in three copies, of which one
will be placed in the Archives of the Court and the others will be
transmitted to the Governments of the United States of America and
of the French Republic respectively.

The Tinoco Arbitration


(1932-1934) 2 Annual Digest of Public International Law Cases 341
Background:
o 1917 - Government of Costa Rica [President Alfredo Gonzales] overthrown by
o
o

o
o
o

Federico Tinoco.
Tinoco assumed power & established new constitution
During his tenure, he:
Granted certain concession to search for oil to a British company
Passed legislation issuing certain new currencies, and British banks [in the
course of business] became holders of much of this currency
1919 - Tinoco retired, left the country Government fall.
Old constitution restored and elections were held.
August 22, 1922, restored government passed Acts nullifying the currency laws it

had made
o Consequence: Invalidated all transactions involved
o The restored government is a signatory of the treaty of arbitration.
The Claim:
o Brought by Great Britain on behalf of two British Corporations:
Royal Bank of Canada
Central Costa Rica Petroleum Company
o Royal Bank of Canada claimed:

1 At page 176 and 379.

Banco Internacional of Costa Rica and the Government of Costa Rica are

indebted to it proven by the holding of 998 1000 colones bills


Central Costa Rica Petroleum Company [CCRPC] claimed:
It owns the rights to explore and exploit petroleum reserves in Costa Rica
This is based on a grant issued by Tinoco
The Defense:
o Great Britain:
On behalf of its nationals, legislation passed invalid
Restored gment should recognize the concessions given to CCRPC and the
o

validity of Tinocos currency held by the Royal Bank of Canada


During the period in question, the Tinoco Government had been the de

facto and de jure government2


Supported by the fact that the government was not opposed in any

significant manner
Thus giving the government legitimacy
All its acts were valid and its successor has no right to repudiate[annul]
them

Costa Rica:
Objected. Claimed that any acts carried out by the government were void

because the Tinoco regime violated the Costa Rican constitution.


Because Great Britain did not recognize the Tinoco Government as
legitimate, it cannot then turn around and claim agreements with an

illegitimate government as binding.


Held:
o Rejected Costa Rica arguments
o While the failure on the part of Great Britain to recognize Tinoco government
was evidence to be taken into account in deciding on the status of that
government, it was not decisive as the status of the government had to be
o

determined in the light of all evidence


In fact, the Tinoco gment had been a de facto gment during the period of its
existence
For the two years while in power, the Tinoco government served its

role in a peaceful environment


No objections, no revolution and no power dispute.
The court then holds that the Tinoco government was an actual sovereign
government.

UK always refused to recognize the Tinoco gment as either de facto or de jure government. H/ever, they still
claim at the
arbitration proceedings that the Tinoco gment was in fact a de facto and de jure government.

The court finds in favor of the Royal Bank of Canada, but finds the petroleum
concession to be a violation of the 1917 Constitution (which means Tinoco

could have nullified the agreement as well).


Courts arguments which is significance to the aspect of International law:
o Scholarly writing: Dr. John Basset Moore: Changes in the government or the
international policy of a state do not as a rule affect its position in
o

international law.
States may change between forms of government without ceasing to be that
state in the eyes of international law, or in terms of its international

obligations.
The principle of the continuity of states = state is bound by engagements
entered into by governments that have ceased to exist; the restored
government is generally liable for the acts of the usurper.

WESTERN SAHARA

Advisory Opinion of 16 October 1975

In its Advisory Opinion which the General Assembly of the United Nations had
requested on two questions concerning Western Sahara, the Court,
With regard to Question I, "Was Western Sahara (Rio de Oro and Sakiet El Hamra) at
the time of colonization by Spain a territory belonging to no one (terra nullius)?",
- decided by 13 votes to 3 to comply with the request for an advisory opinion;
- was unanimously of opinion that Western Sahara (Rio de Oro and Sakiet El Hamra)
at the time of colonization by Spain was not a territory belonging to no one (terra
nullius).
With regard to Question II, "What were the legal ties between this territory and the
Kingdom of Morocco and the Mauritanian entity?", the Court
- decided by 14 votes to 2 to comply with the request for an advisory opinion;
- was of opinion, by 14 votes to 2, that there were legal ties between this territory
and the Kingdom of Morocco of the kinds indicated in the penultimate paragraph of
the Advisory Opinion;

- was of opinion, by 15 votes to 1, that there were legal ties between this territory
and the Mauritanian entity of the kinds indicated in the penultimate paragraph of
the Advisory Opinion.
The penultimate paragraph of the Advisory Opinion was to the effect that:
The materials and information presented to the Court show the existence, at the
time of Spanish colonization, of legal ties of allegiance between the Sultan of
Morocco and some of the tribes living in the territory of Western Sahara. They
equally show the existence of rights, including some rights relating to the land,
which constituted legal ties between the Mauritanian entity, as understood by the
Court, and the territory of Western Sahara. On the other hand, the Court's
conclusion is that the materials and information presented to it do not establish any
tie of territorial sovereignty between the territory of Western Sahara and the
Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal
ties of such a nature as might affect the application of General Assembly resolution
1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle
of self-determination through the free and genuine expression of the will of the
peoples of the Territory.
For these proceedings the Court was composed as follows: President Lachs; VicePresident Ammoun; Judges Forster, Gros, Bengzon, Petrn, Onyeama, Dillard,
Ignacio-Pinto, de Castro, Morozov, Jimnez de Archaga, Sir Humphrey Waldock,
Nagendra Singh and Ruda; Judge ad hoc Boni.
Judges Gros, Ignacio-Pinto and Nagendra Singh appended declarations to the
Advisory Opinion; Vice-President Ammoun and Judges Forster, Petrn, Dillard, de
Castro and Boni appended separate opinions, and Judge Ruda a dissenting opinion.
In these declarations and opinions the judges concerned make clear and explain
their positions.
*
**
Course of the Proceedings
(paras. 1-13 of Advisory Opinion)
The Court first recalls that the General Assembly of the United Nations decided to
submit two questions for the Court's advisory opinion by resolution 3292 (XXIX)
adopted on 13 December 1974 and received in the Registry on 21 December. It
retraces the subsequent steps in the proceedings, including the transmission of a
dossier of documents by the Secretary-General of the United Nations (Statute, Art.
65, para. 2) and the presentation of written statements or letters and/or oral

statements by 14 States, including Algeria, Mauritania, Morocco, Spain and Zaire


(Statute, Art. 66).
Mauritania and Morocco each asked to be authorized to choose a judge ad hoc to sit
in the proceedings. By an Order of 22 May 1975 (I.C.J. Reports 1975, p. 6), the Court
found that Morocco was entitled under Articles 31 and 68 of the Statute and Article
89 of the Rules of Court to choose a person to sit as judge ad hoc, but that, in the
case of Mauritania, the conditions for the application of those Articles had not been
satisfied. At the same time the Court stated that those conclusions in no way
prejudged its views with regard to the questions referred to it or any other question
which might fall to be decided, including those of its competence to give an
advisory opinion and the propriety of exercising that competence.
Competence of the Court
(paras. 14-22 of Advisory Opinion)
Under Article 65, paragraph 1, of the Statute, the Court may give an advisory
opinion on any legal question at the request of any duly authorized body. The Court
notes that the General Assembly of the United Nations is suitably authorized by
Article 96, paragraph 1, of the Charter and that the two questions submitted are
framed in terms of law and raise problems of international law. They are in principle
questions of a legal character, even if they also embody questions of fact, and even
if they do not call upon the Court to pronounce on existing rights and obligations.
The Court is accordingly competent to entertain the request.
Propriety of Giving an Advisory Opinion
(paras. 23-74 of Advisory Opinion)
Spain put forward objections which in its view would render the giving of an opinion
incompatible with the Court's judicial character. It referred in the first place to the
fact that it had not given its consent to the Court's adjudicating upon the questions
submitted. It maintained (a) that the subject of the questions was substantially
identical to that of a dispute concerning Western Sahara which Morocco, in
September 1974, had invited it to submit jointly to the Court, a proposal which it
had refused: the advisory jurisdiction was therefore being used to circumvent the
principle that the Court has no jurisdiction to settle a dispute without the consent of
the parties; (b) that the case involved a dispute concerning the attribution of
territorial sovereignty over Western Sahara and that the consent of States was
always necessary for the adjudication of such disputes; (c) that in the circumstances
of the case the Court could not fulfil the requirements of good administration of
justice with regard to the determination of the facts. The Court considers (a) that
the General Assembly, while noting that a legal controversy over the status of
Western Sahara had arisen during its discussions, did not have the object of
bringing before the Court a dispute or legal controversy with a view to its

subsequent peaceful settlement, but sought an advisory opinion which would be of


assistance in the exercise of its functions concerning the decolonization of the
territory, hence the legal position of Spain could not be compromised by the Court's
answers to the questions submitted; (b) that those questions do not call upon the
Court to adjudicate on existing territorial rights; (c) that it has been placed in
possession of sufficient information and evidence.
Spain suggested in the second place that the questions submitted to the Court were
academic and devoid of purpose or practical effect, in that the United Nations had
already settled the method to be followed for the decolonization of Western Sahara,
namely a consultation of the indigenous population by means of a referendum to be
conducted by Spain under United Nations auspices. The Court examines the
resolutions adopted by the General Assembly on the subject, from resolution 1514
(XV) of 14 December 1960, the Declaration on the Granting of Independence to
Colonial Countries and Peoples, to resolution 3292 (XXIX) on Western Sahara,
embodying the request for advisory opinion. It concludes that the decolonization
process envisaged by the General Assembly is one which will respect the right of
the population of Western Sahara to determine their future political status by their
own freely expressed will. This right to self-determination, which is not affected by
the request for advisory opinion and constitutes a basic assumption of the questions
put to the Court, leaves the General Assembly a measure of discretion with respect
to the forms and procedures by which it is to be realized. The Advisory Opinion will
thus furnish the Assembly with elements of a legal character relevant to that further
discussion of the problem to which resolution 3292 (XXIX) alludes.
Consequently the Court finds no compelling reason for refusing to give a reply to
the two questions submitted to it in the request for advisory opinion.
Question 1: "Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the Time of
Colonization by Spain a Territory Belonging to No One (terra nullius)?"
(paras. 75-83 of Advisory Opinion)
For the purposes of the Advisory Opinion, the "time of colonization by Spain" may
be considered as the period beginning in 1884, when Spain proclaimed its
protectorate over the Rio de Oro. It is therefore by reference to the law in force at
that period that the legal concept of terra nullius must be interpreted. In law,
"occupation" was a means of peaceably acquiring sovereignty over territory
otherwise than by cession or succession; it was a cardinal condition of a valid
"occupation" that the territory should be terra nullius. According to the State
practice of that period, territories inhabited by tribes or peoples having a social and
political organization were not regarded as terrae nullius: in their case sovereignty
was not generally considered as effected through occupation, but through
agreements concluded with local rulers. The information furnished to the Court
shows (a) that at the time of colonization Western Sahara was inhabited by peoples

which, if nomadic, were socially and politically organized in tribes and under chiefs
competent to represent them; (b) that Spain did not proceed upon the basis that it
was establishing its sovereignty over terrae nullius: thus in his Order of 26
December 1884 the King of Spain proclaimed that he was taking the Rio de Oro
under his protection on the basis of agreements entered into with the chiefs of local
tribes.
The Court therefore gives a negative answer to Question I. In accordance with the
terms of the request for advisory opinion, "if the answer to the first question is in
the negative", the Court is to reply to Question II.
Question 11: "What Were the Legal Ties of This Territory with the Kingdom of
Morocco and the Mauritanian Entity?"
(paras. 84-161 of Advisory Opinion)
The meaning of the words "legal ties" has to be sought in the object and purpose of
resolution 3292 (XXIX) of the United Nations General Assembly. It appears to the
Court that they must be understood as referring to such legal ties as may affect the
policy to be followed in the decolonization of Western Sahara. The Court cannot
accept the view that the ties in question could be limited to ties established directly
with the territory and without reference to the people who may be found in it. At the
time of its colonization the territory had a sparse population that for the most part
consisted of nomadic tribes the members of which traversed the desert on more or
less regular routes, sometimes reaching as far as southern Morocco or regions of
present-day Mauritania Algeria or other States. These tribes were of the Islamic
faith.
Morocco (paragraphs 90-129 of the Advisory Opinion) presented its claim to legal
ties with Western Sahara as a claim to ties of sovereignty on the ground of an
alleged immemorial possession of the territory and an uninterrupted exercise of
authority. In the view of the Court, however, what must be of decisive importance in
determining its answer to Question II must be evidence directly relating to effective
display of authority in Western Sahara at the time of its colonization by Spain and in
the period immediately preceding. Morocco requests that the Court should take
account of the special structure of the Moroccan State. That State was founded on
the common religious bond of Islam and on the allegiance of various tribes to the
Sultan, through their caids or sheiks, rather than on the notion of territory. It
consisted partly of what was called the Bled Makhzen, areas actually subject to the
Sultan, and partly of what was called the Bled Siba, areas in which the tribes were
not submissive to him; at the relevant period, the areas immediately to the north of
Western Sahara lay within the Bled Siba.
As evidence of its display of sovereignty in Western Sahara, Morocco invoked
alleged acts of internal display of Moroccan authority, consisting principally of
evidence said to show the allegiance of Saharan caids to the Sultan, including

dahirs and other documents concerning the appointment of caids, the alleged
imposition of Koranic and other taxes, and acts of military resistance to foreign
penetration of the territory. Morocco also relied on certain international acts said to
constitute recognition by other States of its sovereignty over the whole or part of
Western Sahara, including (a) certain treaties concluded with Spain, the United
States and Great Britain and Spain between 1767 and 1861, provisions of which
dealt inter alia with the safety of persons shipwrecked on the coast of Wad Noun or
its vicinity, (b) certain bilateral treaties of the late nineteenth and early twentieth
centuries whereby Great Britain, Spain, France and Germany were said to have
recognized that Moroccan sovereignty extended as far south as Cape Bojador or the
boundary of the Rio de Oro.
Having considered this evidence and the observations of the other States which
took part in the proceedings, the Court finds that neither the internal nor the
international acts relied upon by Morocco indicate the existence at the relevant
period of either the existence or the international recognition of legal ties of
territorial sovereignty between Western Sahara and the Moroccan State. Even
taking account of the specific structure of that State, they do not show that Morocco
displayed any effective and exclusive State activity in Western Sahara. They do,
however, provide indications that a legal tie of allegiance existed at the relevant
period between the Sultan and some, but only some, of the nomadic peoples of the
territory, through Tekna caids of the Noun region, and they show that the Sultan
displayed, and was recognized by other States to possess, some authority or
influence with respect to those tribes.
The term "Mauritanian entity" (paragraphs 139-152 of the Advisory Opinion) was
first employed during the session of the General Assembly in 1974 at which
resolution 3292 (XXIX), requesting an advisory opinion of the Court, was adopted. It
denotes the cultural, geographical and social entity within which the Islamic
Republic of Mauritania was to be created. According to Mauritania, that entity, at the
relevant period, was the Bilad Shinguitti or Shinguitti country, a distinct human unit,
characterized by a common language, way of life, religion and system of laws,
featuring two types of political authority: emirates and tribal groups.
Expressly recognizing that these emirates and tribes did not constitute a State,
Mauritania suggested that the concepts of "nation" and of "people" would be the
most appropriate to explain the position of the Shinguitti people at the time of
colonization. At that period, according to Mauritania, the Mauritanian entity
extended from the Senegal river to the Wad Sakiet El Hamra. The territory at
present under Spanish administration and the present territory of the Islamic
Republic of Mauritania thus together constituted indissociable parts of a single
entity and had legal ties with one another.
The information before the Court discloses that, while there existed among them
many ties of a racial, linguistic, religious, cultural and economic nature, the

emirates and many of the tribes in the entity were independent in relation to one
another; they had no common institutions or organs. The Mauritanian entity
therefore did not have the character of a personality or corporate entity distinct
from the several emirates or tribes which comprised it. The Court concludes that at
the time of colonization by Spain there did not exist between the territory of
Western Sahara and the Mauritanian entity any tie of sovereignty, or of allegiance of
tribes, or of simple inclusion in the same legal entity. Nevertheless, the General
Assembly does not appear to have so framed Question II as to confine the question
exclusively to those legal ties which imply territorial sovereignty, which would be to
disregard the possible relevance of other legal ties to the decolonization process.
The Court considers that, in the relevant period, the nomadic peoples of the
Shinguitti country possessed rights, including some rights relating to the lands
through which they migrated. These rights constituted legal ties between Western
Sahara and the Mauritanian entity. They were ties which knew no frontier between
the territories and were vital to the very maintenance of life in the region.
Morocco and Mauritania both laid stress on the overlapping character of the
respective legal ties which they claimed Western Sahara to have had with them at
the time of colonization (paragraphs 153-160 of the Advisory Opinion). Although
their views appeared to have evolved considerably in that respect, the two States
both stated at the end of the proceedings that there was a north appertaining to
Morocco and a south appertaining to Mauritania without any geographical void in
between, but with some overlapping as a result of the intersection of nomadic
routes. The Court confines itself to noting that this geographical overlapping
indicates the difficulty of disentangling the various relationships existing in the
Western Sahara region at the time of colonization.

International Status of southwest africa