COMPAGNIE contends that the master should have in mind the accepted principles of public international
law, the established practice of nations, and the express terms of the Sixth Hague Convention (1907), the
master should have confidently relied upon the French authorities at Saigon to permit him to sail to his port
of destination under a laissez-passer or safe-conduct, which would have secured both the vessel and her
cargo from all danger of capture by any of the belligerents. The SHIPOWNER contends that the master was
justified in declining to leave his vessel in a situation in which it would be exposed to danger of seizure by
the French authorities, should they refuse to be bound by the alleged rule of international law.
HELD:
- The Court held that after examining the terms and conditions of the convention that at the outbreak of the
present war, there was no such general recognition of the duty of a belligerent to grant "days of grace" and
"safe-conducts" to enemy ships in his harbors, as would sustain a ruling that such alleged duty was
prescribed by any imperative and well settled rule of public international law, of such binding force that it
was the duty of the master of the Sambia to rely confidently upon a compliance with its terms by the
French authorities in Saigon.
- It was nothing but a *pious wish* at least, adherence to the practice by any belligerent could not be
demanded by virtue of any convention, tacit or express, universally recognized by the members of the
society of nations; and that it may be expected only when the belligerent is convinced that the demand for
adherence to the practice inspired by his own commercial and political interests outweighs any advantage
he can hope to gain by a refusal to recognize the practice as binding upon him.
The Court concluded that under the circumstances surrounding the flight of the Sambia from the port of
Saigon, her master had no such assurances, under any well-settled and universally accepted rule of public
international law, as to the immunity of his vessel from seizure by the French authorities, as would justify
us in holding that it was his duty to remain in the port of Saigon in the hope that he would be allowed to
sail for the port of destination designated in the contract of affreightment with a laissez-passer or safeconduct which would secure the safety of his vessel and cargo en route.
The Court also held that it was the duty of the ship-owner to sell, and not to just transship the cargo, due to
the fact of the perishable nature of the cargo (rice) and that he was justified in the delay of acting, so as to
ascertain reasonably what course of action to take.
RE: jurisdiction. It cannot be raised on appeal for the first time.
October 1944, the British Navy verified that no mines existed through the North Corfu Channel in the
territory of Albania. The channel was again checked (one in January and the other in February 1945) and
had negative results.
October 22, 1946 a squadron of British warships (the Mauritius, Leander, Saumarez, and Volage) left the
port of Corfu and proceeded through the channel.
While in Alabanian territorial waters, two of the warships (Saumarez and Volage) struck floating mines and
sustained serious damage. 44 British officers and crew members died, while 42 were injured.
November 1946, British mine sweepers went through the North Corfu Channel, cut 22 moored mines and
took them to Malta for examination.
By a Special Agreement, the British government instituted proceedings against Albania in the International
Court of Justice (ICJ), demanding compensation for damage to its ships and for the loss of lives.
Albanias contention is that there was no proof that such mines that damaged the ships were their own. It
also asserted that coastal States have a right to regulate the passage of foreign ships through its territorial
waters, and that prior authorization to pass should be acquired. Since Britain did not obtain prior
authorization, its passage was not innocent. For this breach of international law, Albania demands
compensation from Britain.
Issue:
Should Albania be held responsible for the mines that struck the British warships?
Held:
Yes, Albania is responsible under international law for the damage and loss of lives, and that it owned a duty to pay
compensation to Great Britain. Before and after the incident, the Albanian Governments attitude showed its
intention to keep a jealous watch on its territorial waters. And when the Albania came to know of the minefield, it
protested strongly against the minesweeping conducted by Britain but not to the laying of mines. It is but showing
that Albania desired the presence of such mines. Moreover, the layout of the minefield shows that this could only be
accomplished by stationing a look-out post near the coasts (that is in Albania). The inevitable conclusion is that the
laying of the minefield could not have been done without the knowledge of Albania. It is then its duty to notify and
warn ships proceeding through the Strait. Its failure to undertake such constitutes neglect of its international
responsibility.
As to the argument on passage through territorial waters, the ICJ ruled that the North Corfu Channel constituted a
frontier between Albania and Greece, that a part of it is wholly within the territorial waters of these 2 States, and that
the Strait is of special importance to Greece. Hence, the Channel belongs to a class of international highways
through which passage cannot be prohibited by a coastal State in time of peace. Moreover, the passage of the British
warships through the Channel was carried out in such manner that is consistent with the principle of innocent
passagethe guns were in a normal position and not targeted to the shores.
5) TEMPLE OF PREAH VIHEAR (CAMBODIA V. THAILAND) Gana
Facts:
-
The case arose from an Application filed by the Government of Cambodia regarding territorial sovereignty
over the Temple of Preah Vihear.
- Thailand made two preliminary objections. One was regarding the jurisdiction of the Permanent Court of
International Justice (PCIJ) while the other was regarding the territory itself.
First Objection:
- Cambodia argues that the PCIJ has jurisdiction over both countries based on a declaration made by the Thai
govt. on May 20, 1950 categorically admitting the jurisdiction of the PCIJ.
- Thailand, on the other hand, argues that based on a 1959 decision of the PCIJ, declarations of acceptance
made after the PCIJ ceased to exist (on April 19, 1946) were not binding. This was because Art. 36 par. 5
of the Statute of the Court says that acceptances made are only binding as such for the period which the
W/n the 1950 declaration of Thailand was an acceptance of the jurisdiction of the PCIJ.
The Court said yes. The Court held that the 1959 decision is only applicable to the parties thereto (which
were Israel and Bulgaria). Furthermore, the Court held that Thailands 1950 declaration made its situation
different from that of Bulgaria. Thailands being a party to the statute expired on May 6, 1950. Thus, its
declaration on May 20, 1950 was a new declaration made outside the operation of the Statute of the Court
and consequently outside the application of Art. 36.
Second Objection:
- Cambodia bases its claim on the Temple of Preah on a map (Annex 1) made by a group of people. On the
other hand, Thailand bases its claim on a treaty signed by France (who was then conducting the foreign
relations of Indo-China) and Siam.
- Thailand argues that Annex 1 was never accepted by the parties to the treaty. Also, Thailand reiterates that
the treaty says that the boundary between Thailand and Cambodia is based on the watershed and the
boundary delineated by Annex 1 does not conform to this agreement.
Issue:
- W/c to follow, Annex 1 or the treaty?
Held:
- The Court held that Annex 1 should be followed. Even if it was not accepted by France, there was an
implied acceptance of such map. This can be seen through the acts of France and Thailand. In 1934-1935
a survey had established a divergence between the map line and the true line of the watershed, and other
maps had been produced showing the Temple as being in Thailand: Thailand had nevertheless continued
also to use and indeed to publish maps showing Preah Vihear as lying in Cambodia. Moreover, in the
course of the negotiations for the 1925 and 1937 Franco-Siamese Treaties, which confirmed the existing
frontiers, and in 1947 in Washington before the Franco-Siamese Conciliation Commission, it would have
been natural for Thailand to raise the matter: she did not do so.
- In effect, Cambodia and Thailand are now estopped from questioning the validity of Annex 1. Thus, the
Temple of Preah Vihear belongs to Cambodia.
6) GABCKOVO-NAGYMAROS (HUNGARY VS. SLOVAKIA) (1993) Lopez
Facts:
-
Issue:
The case started from a treaty entered into by Hungary and Czechoslovakia concerning the construction and
operation of the Gabckovo-Nagymaros System of Locks. The said project was for the construction of
infrastructure on and around the Danube River, which ran in between both countries, for the more
productive use of the waters of the said river.
The treaty assigned the construction of that part of the project in Nagymaros to Hungary while that part in
Gabcikovo to Czechoslovakia. Both parties had their own responsibilities. Each country was responsible
for certain parts of the project.
Works on the project started in 1978. However, Hungary encountered intense criticism from its citizens so
it decided to postpone works on the project starting May 13, 1989. Eventually, Hungary abandoned the
project on 27 October 1989.
During the suspension, Czechoslovakia and Hungary entered into negotiations to come up with an
alternative to the abandoned project. One alternative is Variant C. On 23 July 1991, the Slovak
Government decided to begin, in September 1991, construction to put the Gabckovo Project into operation
using Variant C.
On 19 May 1992, the Hungarian Government transmitted to the Czechoslovak Government a Note Verbale
terminating the 1977 Treaty with effect from 25 May 1992.
Negotiations continued but to no avail. Until, the filing of the instant case.
Issue: W/N the Court cannot exercise jurisdiction to issue an opinion because of contentious matters between Israel
and Palestine.
Held: The Court can exercise its jurisdiction.
One of the arguments is to the effect that the Court should not exercise its jurisdiction in the present case
because the request concerns a contentious matter between Israel and Palestine, in respect of which Israel has
not consented to the exercise of that jurisdiction. According to this view, the subject-matter of the question
posed by the General Assembly is an integral part of the wider Israeli-Palestinian dispute concerning questions
of terrorism, security, borders, settlements, Jerusalem and other related matters. Israel has emphasized that it
has never consented to the settlement of this wider dispute by the Court or by any other means of compulsory
adjudication; on the contrary, it contends that the parties repeatedly agreed that these issues are to be settled by
negotiation, with the possibility of an agreement that recourse could be had to arbitration.
Nottebohm then obtained a Liechtenstein passport and had it visa-ed by the Consul General of Guatemala
in Zurich on 1st December, 1939, and returned to Guatemala at the beginning of 1940, where he resumed
his former business activities.
Liechtenstein had filed an Application instituting proceedings against Guatemala, claiming:
o damages in respect of various measures which Guatemala had taken against the person and
property of M. Nottebohm, in alleged contravention of international law.
o that the Government of Guatemala had acted towards Mr. Friedrich Nottebohm, a citizen of
Liechtenstein, in a manner contrary to international law.
Guatemala contended that the Court was without jurisdiction, the principal ground for its objection being
that the validity of its declaration of acceptance of the compulsory jurisdiction of the Court expired a few
weeks after the filing of the Application by Liechtenstein
ISSUE:
- W/N the unilateral act by Liechtenstein in making M. Nottebohm its citizen was one which could be relied
upon against Guatemala in regard to the exercise of protection.
HELD:
- NO! Nottebohm is still considered a citizen of Guatemala.
- When two States have conferred their nationality upon the same individual and this situation is no longer
confined within the limits of the domestic jurisdiction of one of these States but extends to the international
field, international arbitrators or the Courts of third States which are called upon to deal with this situation
would allow the contradiction to subsist if they confined themselves to the view that nationality is
exclusively within the domestic jurisdiction of the State.
- In order to resolve the conflict they have, on the contrary, sought to ascertain whether nationality has been
conferred in circumstances such as to give rise to an obligation on the part of the respondent State to
recognize the effect of that nationality.
- In determining his nationality, different factors are taken into consideration, and their importance will vary
from one case to the next:
o habitual residence of the individual concerned
o the centre of his interests, his family ties, his participation in public life,
o attachment shown by him for a given country and inculcated in his children, etc.
- According to the practice of States, nationality constitutes the juridical expression of the fact that an
individual is more closely connected with the population of a particular State.
- At the time of his naturalization, does Nottebohm appear to have been more closely attached by his
tradition, his establishment, his interests, his activities, his family ties, his intentions for the near future, to
Liechtenstein than to any other State?
- Nottebohm always retained his family and business connections with Germany and that there is nothing to
indicate that his application for naturalization in Liechtenstein was motivated by any desire to dissociate
himself from the Government of his country.
- Also, Nottebohm had been settled for 34 years in Guatemala, which was the centre of his interests and his
business activities. He stayed there until his removal as a result of war measures in 1943 (remember that he
became a citizen of Liechtenstein in 1979), and complains of Guatemala's refusal to readmit him. Members
of Nottebohm's family had, moreover, asserted his desire to spend his old age in Guatemala.
- There is thus the absence of any bond of attachment with Liechtenstein, but there is a long-standing and
close connection between him and Guatemala, a link which his naturalization in no way weakened.
10) OPOSA VS. FACTORAN Sarenas
Facts:
The petitioners in this case are all minors represented by their parents. Factoran was the then secretary of
the DENR.
The complaint was instituted as a taxpayers class suit. The minors are saying that they represent their
generation as well as generation yet unborn.
Issue:
Held:
Issue:
Held:
Issue:
Held:
Issue:
Held:
The prayer is that the secretary of DENR to cancel all existing timber license agreements and refuse to
accept new ones.
Factoran filed a motion to dismiss saying that petitioners do not have a cause of action and what is involved
is a political question that is for the legislative department to resolve. The RTC judge approved the motion.
Plaintiffs thus filed the motion for certiorari.
1. The main ruling of the Court (the majority opinion) is that it cannot exercise jurisdiction over the case
notwithstanding the fact that it has been conferred jurisdiction through the declarations made by the parties (i.e.,
Portugal and Australia) under Article 36, paragraph 2, of its Statute.
Reasons for the ruling:
a)
the Court cannot exercise jurisdiction over the case because Indonesia is not a party thereto. The court held
that in order to rule on the proceedings instituted by Portugal against Australia concerning "certain
activities of Australia with respect to East Timor", it would be necessary for the court to determine the
Yes.
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the
word .'activities" arose from accident. In our view, 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 nation's 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.
The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise
participants may not engage in combat "except in self-defense." We wryly note that this sentiment is
admirable in the abstract but difficult in implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf,
cannot reasonably be expected to sit idly while the battle is brought to their very doorstep. They cannot be
expected to pick and choose their targets for they will not have the luxury of doing so. We state this point if
only to signify our awareness that the parties straddle a fine line, observing the honored legal maxim
"Nemo potest facere per alium quod non potest facere per directum."11 The indirect violation is actually
petitioners' worry, that in reality, "Balikatan 02-1 " is actually a war principally conducted by the United
States government, and that the provision on self-defense serves only as camouflage to conceal the true
nature of the exercise. A clear pronouncement on this matter thereby becomes crucial.
Notes:
The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism
campaign declared by President George W. Bush in reaction to the tragic events that occurred on September
11, 2001
Mutual Defense Treatyas the "core" of the defense relationship between the Philippines and its
traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of our
armed forces through joint training with its American counterparts; in re: VFA.
Visiting Forces Agreementprovides the "regulatory mechanism" by which "United States military and
civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the
Philippine Government." It contains provisions relative to entry and departure of American personnel,
driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of
vessels and aircraft, as well as the duration of the agreement and its termination. Its primary goal is to
The Republic of the Philippines, through DTI Secretary Navarro signed in the Final Act Embodying the
Results of the Uruguay Round of Multilateral Negotiations.
The Philippine Senate, then, received a letter from the President of the Philippines stating that the Uruguay
Round Final Act (the Agreement establishing the World Trade Organization) is submitted to them for their
concurrence. Another letter on the same subject was given to the Senate.
Senate adopted a resolution expressing its concurrence in the ratification of the international agreement.
Thereafter, the President signed the Instrument of Ratification. However, the WTO Agreement ratified by
the President did not contain certain documents contained in the Final Act signed by the DTI Secretary.
This action was filed by Tanada et al questioning the validity/constitutionality of the WTO Agreement.
Issues:
Is the WTO Agreement consistent with the Constitution?
Does the WTO Agreement unduly limit and restrict Philippine sovereignty?
Does the concurrence made by the Senate and the President, in essence, defective since it did not include other
documents contained in the Final Act signed by the DTI Secretary?
Held:
An initial question was posed regarding jurisdiction. The SC ruled that it has jurisdiction over the matter since it has
the power to determine whether there was GADLEJ on the part of the Senate and President. However, the SC will
not review the wisdom of their decisions.
The WTO Agreement is not violative of the Constitution. The reliance on the priniciple of economic nationalism
espoused in Articles 2(sec 19) and 12(secs 10 and 12) of the Constitution is misplaced as these are not self-executing
provisions. They do not embody judicially enforceable constitutional rights but are guidelines for legislation. These
are broad constitutional principles that need legislative enactments to implement them. Moreover, while the
Constitution indeed 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 enterprises only against foreign competition and trade practices that are unfair. The
Constitution did not intend to promote an isolationist policy. In addition, the GATT itself has provided built-in
protection from such unfair foreign competition and trade practices.
(the important part)
Participating in the WTO Agreement did limit or restrict, to some extent, the absoluteness of our sovereignty, but is
not necessarily reprehensible. While sovereignty has traditionally been deemed absolute and all-encompassing on
the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations. Through the incorporation clause in the Constitution,
the Philippines is bound by generally accepted principles of law as they automatically form part of the laws of the
land. Of great importance is the principle of pacta sunt servanda, which means that international agreements must be
performed in good faith. A state which has contracted valid international obligations is bound to make in its
legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken. So by
their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted
by or derived from a convention or pact. For instance, when the Philippines joined the UN and other bilateral
relations with other States, it effectively limits its sovereign powers of taxation, eminent domain and police power. It
can then be inferred that a portion of sovereignty may be waived without violating the Constitution by virtue of the
Philippines being bound by generally accepted principles of law.
Issue:
Held:
-
The case is a dispute between Denmark and Norway regarding the territorial jurisdiction over the part of
the Atlantic Ocean between Greenland (part of the Kingdom of Denmark) and the island of Jan Mayen (part
of the Kingdom of Norway). The distance between the coast of Greenland and Jan Mayen is 250 nautical
miles. The problem arose when Denmark, through an Executive Order, declared the area 200 miles from
the coast of Greenland as fishery zones of Denmark. Also, Norway enacted legislation empowering their
government to establish 200-mile economic zones around its coast. Thus, there was an overlap between the
fishery zone of Denmark (off the coast of Greenland) and the economic zone of Norway (off the coast of
Jan Mayen).
Norway argues that both parties already came up with an agreement over the overlapping zones on Dec. 8,
1965. The said agreement limited the claims of both countries up to a median line which was at the center
of Greenland and Jan Mayen. Norway also bases its claim on the 1958 Geneva Convention on the
Continental Shelf, which also solves the problem of overlapping claims by instituting a median line which
is equidistant from the coasts of either state. Norway also points out that by the conduct of Denmark, it can
be inferred that the latter accedes to the idea of a median line. Norway pointed to a Royal Decree, a Danish
Act and diplomatic notes and letters as proofs of such.
How to divide the area between Greenland and Jan Mayen?
The Court held that Art. 6 of the 1958 Geneva Convention on the Continental Shelf should be followed.
The said article states that in cases where two or more states have disputes of the same sort as the one in
this case, there should be a median line formed equidistant from the coasts of the states involved. This
medial line, though, can be adjusted as stated in the Article and affirmed by several decisions of the
International Court. The adjustment would be based on special circumstances, at the discretion of the
Court.
In this case, the Court found that the respective coastal lengths of Greenland and Jan Mayen can be
considered as a special circumstance which calls for the adjustment of the median line. This is considered a
special circumstance because the difference is substantial. Greenland possesses a much longer coastline,
thus it should be afforded a wider claim over the disputed area based on the principle of proportionality.
Nicaragua is assailing certain acts of the US as being contrary to customary international law, to wit:
o Placing of mines in the ports of Nicaragua;
Issue:
Held:
-
In support of Sealand's sovereignty, Prince Roy fired warning shots at a buoy repair boat that came close
to Sealand. The Prince was charged with unlawful possession and discharge of a firearm by the British
government. The Essex court proclaimed that they didn't have jurisdiction over the tower and the British
government chose to drop the case due to mockery by the media. That case represents Sealand's first
claim to de facto international recognition as an independent country. (The United Kingdom demolished
the only other nearby tower lest others get the idea to also strive for independence.) The second de facto
recognition was when the Dutch government sent a diplomat to Sealand to petition the release of its
nationals who were detained by Prince Roy as prisoners of war.
Today, only Prince Roy lives on the tower at sixty feet above the sea. Princess Joan's arthritis isn't
conducive to living on the North Sea and though the royal family's son, Michael takes care of much of the
business for Sealand, he also lives onshore. The Bateses all maintain "dual" citizenship in the United
Kingdom and Sealand.
In 2000, Sealand came into the news because a company called Haven Co Ltd planned on operating a
complex of Internet servers at Sealand, out of the reach of governmental control. HavenCo gave the
Bateses $250,000 and stock to lease Rough's Tower and the company has the option to purchase Sealand
in the future. This transaction was especially satisfying to the Bateses as the maintenance and support of
Sealand has been quite expensive over the past 33 years.
Issue: W/N Sealand is an independent State
Held: NO.
There are eight accepted criteria used to determine whether an entity is an independent country or not.
1) Has space or territory which has internationally recognized boundaries. No. Sealand has no land or
boundaries at all, it's a tower built by the British as an anti-aircraft platform during World War II.
Certainly, the government of the U.K. can assert that it owns this platform.
Sealand also lies within the United Kingdom's proclaimed 12 nautical mile territorial water limit. Sealand
claims that since it asserted its sovereignty before the U.K. extended its territorial waters, it concept of
being "grandfathered in" applies. Sealand also claims its own 12.5 nautical mile territorial water.
2) Has people who live there on an ongoing basis. Not really. As of 2000, only one person lives at Sealand
and he's going to move out, to be replaced by temporary residents working for Haven Co. Prince Roy
maintains his U.K. citizenship and passport, lest he end up somewhere where Sealand's passport isn't
recognized.
3) Has economic activity and an organized economy. A State regulates foreign and domestic trade and
issues money. No. Haven Co represents Sealand's only economic activity up to now. While Sealand
issued money, there's no use for it beyond collectors. Likewise, Sealand's stamps only have value to a
philatelist (stamp collector) as Sealand is not a member of the Universal Postal Union, mail from Sealand
can't be sent elsewhere (nor is there much sense in mailing a letter across the tower itself).
4) Has the power of social engineering, such as education. Perhaps. If it had any citizens.
5) Has a transportation system for moving goods and people. No.
6) Has a government which provides public services and police power. Yes, but that police power is
certainly not absolute. The United Kingdom can assert its authority over Sealand quite easily with a few
police officers.
7) Has sovereignty. No other State should have power over the State's territory. No. The United Kingdom
has power over Sealand's territory. The British government was quoted in Wired, "Although Mr. Bates
styles the platform as the Principality of Sealand, the U.K. government does not regard Sealand as a
state."
8) Has external recognition. A State has been "voted into the club" by other States. No. No other country
recognizes Sealand. An official from the United States Department of State was quoted in Wired, "There
are no independent principalities in the North Sea. As far as we are concerned, they are just Crown
dependencies of Britain."
The British Home Office was quoted by the BBC that the United Kingdom does not recognize Sealand
and, "We've no reason to believe that anyone else recognizes it either."
If you look at the map of this region, Germanys coastline on the north (that which faces the North Sea) is
going inwards the mainland (basically its a concave figure). Netherlands is on one side of Germany,
while Denmark is on the other. It is also noticeable that the coastlines of Denmark and Netherlands (the
ones facing the North Sea) are outwardly curving.
The case was submitted to the ICJ to determine the principles or rules of international law, applicable, in
carrying out the delimitation of the continental shelf.
Netherlands and Denmark argue that the equidistance principle in Article 6 of the Geneva Convention
is applicable. Such principle essentially entails that your countrys continental shelf will be drawn up to a
certain distance from your shorelines--following the contours and indentations.
Clearly the equidistance principle is to the disadvantage of Germanyit having an inward shoreline. If
said principle is to be applied to Germany, then it would necessarily lose jurisdiction over certain portions
of the North Sea. While Denmark and Netherlands would benefit from a widening tendency on the area of
continental shelf off that coast.
Germany contends that all the parties should be given a just and equitable share in proportion to the
length of its sea-frontage (essentially following the area facing the North sea without regard to inward or
outward indentations). In addition, Germany prays that the States involved be entitled to a continental
shelf area up to a central point as its median line.
Netherlands and Denmark argue that Germany is bound by Art 6 of the Geneva Convention, despite the
latters non-ratification of said treaty, because that provision has formed part of international custom and
can even be considered to be a general principle of law. Germany argues otherwise. Moreover, it argues
that even if the provision has gained the status of custom, the configuration of Germanys coast
constituted a special circumstance (this is similarly provided in the provision) which would justify a
departure from the equidistance principle.
Issue:
How should the delimitation of the North Sea continental shelf be carried out?
Held:
It should be carried out by agreement between the States taking into account geographical equitable
considerations including general and special features of the coasts. The Court decided the case based on
equity considerations. Since neither treaty nor custom is governing, the Court tried to reach an equitable
conclusion.
(On apportioning the continental shelf area into just and equitable shares)
The Court is not tasked to apportion the areas concerned, but merely to delimit it. The continental shelf is
a natural prolongation of a States land territory. Since a State has sovereignty over its land territory, it
naturally has a right over the prolongation of its landi.e. the continental shelf. For the court to apportion
the areas is inconsistent with the basic concept of continental shelf entitlement.
(On the argument of custom)
Article 6 of the Geneva Convention does not embody an existing customary norm. The provision cannot
be said to have crystallized into a rule of customary international law for several reasons: First, Article 6
was framed to be purely contractual (Suffice it to state that the Convention was not a treaty of codification
but purely de lege ferenda [creating new rules between the contracting States]); Second, the number of
ratifications and accessions to the treaty was hardly sufficient to constitute a general rule of international
law; Third, state practice was neither extensive enough nor virtually uniform to show a general
recognition of an evolving norm; And fourth, the treaty itself allows for reservations (in effect,
contracting States may practice or not practice the equidistance principle)
Held:
The fact of respondent's forcible abduction does not prohibit his trial in a United
States court for violations of this country's criminal laws.
(a) A defendant may not be prosecuted in violation of the terms of an extradition
treaty. United States v. Rauscher. However, when a treaty has not been invoked,
a court may properly exercise jurisdiction even though the defendant's presence
is procured by means of a forcible abduction. Ker v. Illinois. Thus, if the
Extradition Treaty does not prohibit respondent's abduction, the rule of Ker
applies and jurisdiction was proper.
(b) Neither the Treaty's language nor the history of negotiations and practice
under it supports the proposition that it prohibits abductions outside of its terms.
The Treaty says nothing about either country refraining from forcibly abducting
people from the other's territory or the consequences if an abduction occurs. In
addition, although the Mexican government was made aware of theKer doctrine
as early as 1906, and language to curtail Ker was drafted as early as 1935, the
Treaty's current version contains no such clause.
(c) General principles of international law provide no basis for interpreting the Treaty to
include an implied term prohibiting international abductions. It would go beyond established
precedent and practice to draw such an inference from the Treaty based on respondent's
argument that abductions are so clearly prohibited in international law that there was no
reason to include the prohibition in the Treaty itself. It was the practice of nations with regard
to extradition treaties that formed the basis for this Court's decision in Rauscher, supra, to
imply a term in the extradition treaty between the United States and England. Respondent's
argument, however, would require a much larger inferential leap with only the most general
of international law principles to support it. While respondent may be correct that his
abduction was "shocking" and in violation of general international law principles, the
decision whether he should be returned to Mexico, as a matter outside the Treaty, is a
matter for the Executive Branch.
residence here. The agreement shall be effective for 4 years and will renew itself
automatically unless cancelled by either party.
A new Chief of Administration cameMinister Counsellor Kasimhe found the
services of Vinzon unsatisfactory and called for the termination of the agreement.
Vinzon claims that the termination was arbitrary and unlawful. Vinzon said that Minister
Kasim could not have been dissatisfied of their services as the latter even requested for an
additional worker in the Embassy.
Vinzon filed a case against the Republic of Indonesia. The Republic filed a Motion to
Dismiss on the ground that it is a foreign sovereign State, has sovereign immunity from
suit and cannot be sued as a party-defendant in the Philippines. Even Ambassador
Soeratmin and Minister Kasim cannot be sued as they enjoy diplomatic immunity.
Vinzon claims that the Republic of Indonesia already waived its immunity based on a
provision in the Agreement stating that any legal action arising out of the said Agreement
shall be settled according to the laws of the Philippines. He further stated that the two
diplomats can be held liable in their private capacities for tortious acts done with malice
and bad faith.
RTC denied the Motion to Dismiss. CA affirmed. These courts said that the Republic of
Indonesia gave its consent to be sued and voluntarily submitted itself to the laws and
jurisdiction of Philippine courts and the diplomats waived their immunity as well.
Issue:
Did the Republic of Indonesia (and its diplomats) waive its immunity from suit?
Held:
No, the Republic of Indonesia did not waive its immunity. The provision in the contract is not
necessarily a waiver of sovereign immunity from suit. Submission by a foreign state to local
jurisdiction must be clear and unequivocal. It must be given explicitly or by necessary
implication. There is no such waiver in this case.
A State may not be sued without its consent. When a State enters into purely commercial
activities the nature of the act should be determined as to whether it is jure imperii (public) or
jure gestionis (private).
If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii.
Consequently, it is covered by sovereign immunity.
The establishment of a diplomatic mission is an act jure imperii. And a State may enter into
contracts with private entities to maintain the premises, furnishings and equipment of the
embassy and the living quarters of its diplomatic agents and officials. Applying it in this case,
the Republic of Indonesia was acting in pursuit of a sovereign activity when it entered into a
contract with Vinzon.
As to whether or not Ambassador Soeratmin and Minister Kasim may be sued in their private
capacities, Article 31 of the Vienna Convention on Diplomatic Relations is clear that a
diplomatic agent enjoys immunity from the criminal jurisdiction of the receiving State. Though
there are exceptions (i.e. real action relating to private immovable property; action relating to
succession; action relating to any professional or commercial activity outside official functions),
the case does not fall under any of them. The acts of the 2 diplomats were incidental to the
exercise of an official function.
Jeffrey Liang vs. People Gana
FACTS
Two criminal informations for grave oral defamation were filed by CABAL, a member of
the clerical staff of the Asian Development Bank against LIANG, a Chinese national who
was employed as an Economist by the said bank
MTC of Mandaluyong City, acting pursuant to an advice from the Department of Foreign
Affairs that LIANG enjoyed immunity from legal processes, dismissed the case
On petition for certiorari and mandamus, the RTC set aside the order of the MTC
Hence, this petition
LIANG argues for the diplomatic immunity of the ADB, its officials and staff, from legal
and judicial processes in the Philippines
ISSUE
HELD
RATIO
The fifth case, that of Mighell v Sultan of Johore in 1894 deals with a woman who fell
under another kind of spell, for which there was no legal redress. A man she had met in high
society, who appeared gentlemanly, wealthy and plausible, and who called himself Albert Baker,
promised her marriage. He promised marriage to her and then reneged on the promise, so she
sued him, like Polly Frost in a rather different social milieu, for breach of promise. The case
came on for hearing in the Court of Appeal on November 27, 1893. The case again attracted a
wealth of legal talent: Lord Esher, Master of the Rolls, and Lords Justices Lopes and Kay.
Apparently Miss Mighell knew already that her fianc was not Albert Baker: this was a not very
imaginative pseudonym for Abu Bakr, His Serene Highness the Sultan of Johore. The case
revealed his secret life in the high society of London, a long way absent from his kingdom in the
Malay Straits. The status of the defendant was important. Miss Mighell.s argument was that he
had originally presented himself as a private individual and a subject of the Queen. This pointed
up of course the duality of a sovereign.s status- that they are both public and private
personalities. A distinction was drawn between private transactions and matters of sovereign
authority. Had Abu Bakr, (who declined to appear in court) lost this privilege of diplomatic
immunity by his deceit? An independent sovereign is entitled to immunity from jurisdiction,
unless he waives this privilege, which Abu Bakr was not going to do. Did his conduct amount to
waiver? Persisted the lawyers for Miss Mighell. No, it must be an active waiver was the
uncompromising answer.
Ultimately, political considerations and agendas often decide the day. In 1894 the British
Government was unwilling to offend a friendly foreign potentate to appease a private individual.
In this sense, Miss Mighell was a victim of state policy, but the peculiar nature of breach of
promise also meant she was a victim because she was a woman.
Minucher vs. CA Mendiola
Facts: Minucher is an Iranian national. He came to the Philippines to study in the University of
the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he was appointed
Labor Attach for the Iranian Embassies in Tokyo, Japan and Manila, Philippines. When
the Shah of Iran was deposed by Ayatollah Khomeini, he became a refugee of the United
Nations and continued to stay in the Philippines.
Minucher was introduced to Scalzo, who was an informer of the Intelligence Unit
of the military. On several occasions, Minucher and Scalzo entered into contracts of sale
wherein Scalzo bought caviar, rugs, etc. from Minucher. Minucher expressed his desire to
acquire a US Visa. Scalzo told Minucher that he can help him in exchange for $2k.
One day, Scalzo came back again to plaintiff's house and directly proceeded to the
latter's bedroom, where the latter and his countryman, Abbas Torabian, were playing
chess. Minucher opened his safe in the bedroom and obtained $2,000.00 from it, gave it
to the defendant for the latter's fee in obtaining a visa for plaintiff's wife. The defendant
told him that he would be leaving the Philippines very soon and requested him to come
out of the house for a while so that he can introduce him to his cousin waiting in a cab.
Without much ado, and without putting on his shirt as he was only in his pajama pants,
he followed the defendant where he saw a parked cab opposite the street. To his
complete surprise, an American jumped out of the cab with a drawn high-powered gun.
He was in the company of about 30 to 40 Filipino soldiers with 6 Americans, all armed.
He was handcuffed and after about 20 minutes in the street, he was brought inside the
house by the defendant. He was made to sit down while in handcuffs while the
defendant was inside his bedroom. . He asked for any warrant, but the defendant told
him to `shut up. He was nevertheless told that he would be able to call for his lawyer
who can defend him. As a result of the search, the agents found heroin inside the house
of Minucher.
Minucher filed a complaint against Scalzo. The lower court adjudged Scalzo to be
liable to pay Minucher damages. However, the CA reversed saying that Scalzo is
absolutely immune because he is clothed with diplomatic immunity by virtue of the
Vienna convention.
Minucher files this appeal. Still, Scalzo still claims that he may not be proceeded
against by Minucher, because he is an agent of the US Drugs Enforcement Agency.
Scalzo, in fact, submitted several documents showing that the Philippines, through the
DFA, recognized his status as a person with diplomatic immunity.
Issue: W/N Scalzo has diplomatic immunity.
Held: Scalzo has immunity.
The main yardstick in ascertaining whether a person is a diplomat entitled to
immunity is the determination of whether or not he performs duties of diplomatic nature.
Also, vesting a person with diplomatic immunity is a prerogative of the executive branch of
the government.
The consent or imprimatur of the Philippine government to the activities of the
United States Drug Enforcement Agency, can be gleaned from the facts mentioned. The
official exchanges of communication between agencies of the government of the two
countries, certifications from officials of both the Philippine Department of Foreign Affairs
and the United States Embassy, as well as the participation of members of the Philippine
Narcotics Command in the buy-bust operation conducted at the residence of Minucher at
the behest of Scalzo, may be inadequate to support the "diplomatic status" of the latter but
they give enough indication that the Philippine government has given its imprimatur, if not
consent, to the activities within Philippine territory of agent Scalzo of the United States
Drug Enforcement Agency. The job description of Scalzo has tasked him to conduct
surveillance on suspected drug suppliers and, after having ascertained the target, to inform
local law enforcers who would then be expected to make the arrest. In conducting
surveillance activities on Minucher, later acting as the poseur-buyer during the buy-bust
operation, and then becoming a principal witness in the criminal case against Minucher,
Scalzo hardly can be said to have acted beyond the scope of his official function or duties.
All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of
the United States Drug Enforcement Agency allowed by the Philippine government to
conduct activities in the country to help contain the problem on the drug traffic, is entitled to
the defense of state immunity from suit.
N.B. It might be recalled that the privilege is not an immunity from the observance of the law of
the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the
exercise of territorial jurisdiction
Fisheries Case Morada
Nuclear Tests Case (Australia/New Zealand vs. France) Rivas
Callado vs. International Rice Research Institute Sarenas
Facts:
Ernesto Callado was employed as a driver at the IRRI from April 1983 - Dec. 1990. On
Feb. 1990, Callado got into an accident while on an official trip to the NAIA.
The investigation by the HRD of IRRI found Callado to have been driving under the
influence of liquor. Callado submitted an answer and defenses.
IRRI terminated the services of Callado. Callado filed an illegal dismissal case against
IRRI before the Labor Arbiter.
The Labor Arbiter took notice of the contention of IRRI but still continued with the case.
The Labor Arbiter maintains that in all cases of termination, IRRI waives its immunity.
NLRC reversed the decision of the Labor Arbiter and dismissed the case.
Issue:
W/N IRRI has waived its immunity from suit in a dispute which arose from an employeremployee relationship
Held:
NO!
Under PD 1620 (Act Granting to IRRI the privileges of an international organization), the
Institute shall enjoy immunity from any penal, civil and administrative proceedings.
The grant of immunity to IRRI is clear and unequivocal and an express waiver by its
Director-General is the only way which it may relinquish or abandon this immunity.
According to the Memo: in cases involving dismissal of employees, the Institute may
waive its immunity, signifying that such waiver is discretionary on its part.
ILO Anastacio
WHO vs. Aquino Beron
Yes. It is true that the dispute was at first between a private person (Mavrommatis) and a State
(Britain). But the Greek Government subsequently took up the case. The case, then, entered into
a new phase: it became a dispute between two States and is covered by international law.
Referring to the Mandate of Palestine, the case is undoubtedly between a Mandatory (Britain)
and another member of the League of Nations (Greece). When Greece took the case of one of its
subjects and resorted to diplomatic action or international judicial proceedings on that persons
behalf, a State is in reality asserting its own rights. Though the present dispute originated in an
injury to a private interest, such is irrelevant now. The fact that the opposing parties are States is
sufficient to comply with the Palestinian Mandate. Being signatory to his Mandate, Britain has
given consent to the PCIJs jurisdiction.
The Courts decision dismissed Britains objection with respect to the claims in Jerusalem. But
upheld the objection as to the claims in Jaffa. The court said that the claims in Jaffa were not
subject of the Mandate of Palestine with which Britain submitted jurisdiction.
Neer Case Gana
Roberts Case Lopez
Zafiro Case Mendiola
Texaco Morada