B.
SOURCES OF INTERNATIONAL LAW Evidence of customary law
1. Conventions/Treaties
2. Customs (Customary International Law)
3. General Principles
4. Judicial decisions
5. Learned writers
6. Other possible sources
Sources as provided under Article 38(1), Statute of the International
Court of Justice (ICJ)
The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, [.e. that only the parties bound by the
decision in any particular case,] judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law.
FORMAL/LEGAL V. MATERIAL/NON-LEGAL; DISTINGUISHED
Formal/Legal
the criteria under which a rule is accepted as valid in the given legal
system at issue.
Material/Non-legal
refers to a causal or historical influence explaining the factual existence
of a given rule of law at a given place and time, for example, to show that a
certain contemporary rule of Dutch law may originate from Roman law, or to
state that the development of labour law has resulted from the political action
taken by trade unions.
These criteria distinguish binding law from legally non-binding other social or
moral norms and the law de lege lata / lex lata norm (the law as it currently
stands/settled norm) from the law de lege ferenda / lex ferenda norm (the law as
it may be, or should be, in the future/progressing norm).
Treaties
An agreement which imposes the same obligations on all the parties to it and seek
to regulate the parties behaviour over a long period of time.
Law-making treaties and contract treaties
Law-making treaty is a treaty with the purpose to conclude an
agreement on universal substantive legal principles (i.e. human rights treaties,
Genocide Convention).
A contract-treaty (traits-contrat), is one which resemble contracts
(e.g. a treaty whereby one state agrees to lend a certain sum of money to another
state)
The only distinction between a law-making treaty and a contract-treaty is one of
content. As a result, many treaties constitute borderline cases, which are hard to
classify. A single treaty may contain some provisions which are contractual, and
others which are law-making. The distinction between law-making treaties and
contract-treaties is not entirely useless; for instance, a contract-treaty is more 3.
likely to be terminated by the outbreak of war between the parties than a law-
making treaty. But it is too vague and imprecise to justify regarding law-making
treaties as the only treaties which are a source of international law. The better
view is to regard all treaties as a source of law. At any rate, the law of treaties
applies to both types of treaties.
Parties to international treaties and international contracts
1. States
2. International Organizations
3. Other traditionally recognized entities (some multinational companies; to
establish balance between parties and to prevent one from performing their
obligations through the amendment of a law)
International business contracts between two foreign corporations is not a treaty
and is subject to one national legal system. (Extrinsic: Lex loci celebracionis;
Intrinsic: Lex loci voluntatis/lex loci intentionis)
Custom (Customary International Law)
State practice
1. Published material from newspaper reports of actions taken by
states, and from statements made by government spokesmen to Parliament,
to the press, at international conferences and at meetings of international
organizations;
2. States laws and judicial decisions (because the legislature and the
judiciary form part of a state just as much as the executive does)
Writings of international lawyers (subsidiary)
Judgments of national and international tribunals (subsidiary)
Treaties (Great care must be taken when inferring rules of
customary law)
1. Bilateral Treaties The network of bilateral treaties
must be widespread before it can amount to state practice resulting in customary
law.
2. Multilateral Treaties If the treaty claims to be
declaratory of customary law, or is intended to codify customary law, it can be
quoted as evidence of customary law even against a state which is not a party to
the treaty. This is so even if the treaty has not received enough ratifications to
come into force.
Two (2) Elements which comprise of Custom:
1. Must be a general state practice; (objective)
a. What states do or say and omit to do or say;
b. Passiveness and inaction may produce a binding effect (Doctrine of
Acquiescence)
2. Must be accepted as law/opinio juris; (subjective) a conviction felt by
states that a certain form of conduct is required by international law. General
assembly resolution; opinio juris;
Notes on Customary International Law:
1. The debate on what constitutes proper evidence of customary law needs to
be separated from procedural questions, such as the burden of proof or
general rules on evidence before international courts and tribunals. It is true
that a state seeking to rely on a particular rule of customary law normally
has the burden of proving the fact that the relevant state practice exists. But
an international judge or arbitrator will not rely on rules of procedure to
decide whether a norm exists or not, but will rather make a value judgment.
2. It has sometimes been suggested that a single precedent is not enough to
establish a customary rule, and that there must be a degree of repetition
over a period of time; thus, in Colombia v. Peru the ICJ suggested that a
customary rule must be based on a constant and uniform usage. (what
prevented the formation of a customary rule in this case was not the
absence of repetition, but the presence of major inconsistencies in the
practice)
1. Nicaragua case: The Court does not consider that, for a rule to be
established as customary, the corresponding practice must be in
absolutely rigorous conformity with the rule. In order to deduce the
existence of customary rules, the Court deems it sufficient that the
conduct of States should, in general, be consistent with such rules, and
that instances of State conduct inconsistent with a given rule should
generally have been treated as breaches of that rule, not as indications
of the recognition of a new rule.
Where there is no practice which goes against an alleged rule of customary
law, it seems that a small amount of practice is sufficient to create a
customary rule, even though the practice involves only a small number of
states and has lasted for only a short time.
Cases:
Nicaragua v. US, ICJ Report (1986)
THE ABSENCE OF STATE PRACTICE
In considering the instances of state practice, the Court has to emphasize that, as
was observed in the North Sea Continental Shelf cases, for a new customary rule
to be formed, not only must the acts concerned "amount to a settled practice", but
they must be accompanied by the opinio juris sive necessitatis. Either the States
taking such action or other States in a position to react to it, must have behaved
so that their conduct is:
"evidence of a belief that this practice is rendered obligatory by the existence of a
rule of law requiring it. The need for such a belief. i.e., the existence of a
subjective element, is implicit in the very notion of the opinio juris sive
necessitatis." (I.C.J. Reports 1969, p. 44, para. 77.)
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The Court has no jurisdiction to rule upon the conformity with international law of
any conduct of States not parties to the present dispute, or of conduct of the
Parties unconnected with the dispute; nor has it authority to ascribe to States legal
views which they do not themselves advance. The significance for the Court of
cases of State conduct prima facie inconsistent with the principle of non-
intervention lies in the nature of the ground offered as justification. Reliance by a
State on a novel right or an unprecedented exception to the principle might, if
shared in principle by other States, tend towards a modification of customary
international law. In fact however the Court finds that States have not justified
their conduct by reference to a new right of intervention or a new exception to the
principle of its prohibition. The United States authorities have on some occasions
clearly stated their grounds for intervening in the affairs of a foreign State for
reasons connected with, for example, the domestic policies of that country, its
ideology, the level of its armaments, or the direction of its foreign policy. But these
were statements of international policy, and not an assertion of rules of existing
international law.
The United States, in breach of its obligation under general and customary
international law, has violated and is violating the sovereignty of Nicaragua by :
- armed attacks against Nicaragua by air, land and sea ;
- incursions into Nicaraguan territorial waters ;
- aerial trespass into Nicaraguan airspace ;
- efforts by direct and indirect means to coerce and intimidate the
Government of Nicaragua." (Para. 26 (h).)
CONTENTION OF SELF-DEFENSE = NOT TENABLE
For the Court to conclude that the United States was lawfully exercising its right of
collective self-defence. it must first find that Nicaragua engaged in an armed
attack against El Salvador, Honduras or Costa Rica.
The Court has seen no evidence that the conduct of those States was consistent
with such a situation, either at the time when the United States first embarked on
the activities which were allegedly justified by self-defence, or indeed for a long
period subsequently. So far as El Salvador is concerned, it appears to the Court
that while El Salvador did in fact officially declare itself the victim of an armed
attack, and did ask for the United States to exercise its right of collective self-
defence, this occurred only on a date much later than the commencement of the
United States activities which were allegedly justified by this request.
The Paquette Habana Case (175 US 677)
Facts:
Two (2) fishing vessels (the Paquette Habana and the Lola), sailing under the
Spanish flag were caught by a US blockading squadron and brought to Key West,
South Florida.
The Paquette Habana was caught by the US gunboat, Castine while the Lola was
caught by the US steamship Dolphin.
On April 27, 1898, a declaration for the condemnation of the vessels and their
cargo was filed, however the master and crew interposed their claims against it.
On May 30, 1898, a final decree of condemnation and sale was entered. Each
vessel was later on sold by auction. (The Paquette Habana for $490; the Lola for
$800)
Issue: Whether or not the fishing vessels and their cargo are subject to capture
by US armed vessels as prize of war, considering that it is exempted under ancient
usage.
Held: Coast fishing vessels are exempt from capture as prize of war through
customs.
By an ancient usage among civilized nations, beginning centuries ago and
gradually ripening into a rule of international law, coast fishing vessels pursuing
their vocation of catching and bringing in fresh fish have been recognized as
exempt, with their cargoes and crews, from capture as prize of war.
This review of the precedents and authorities on the subject appears to us
abundantly to demonstrate that, at the present day, by the general consent of the
civilized nations of the world, and independently of any express treaty or other
public act, it is an established rule of international law, founded on considerations
of humanity to a poor and industrious order of men, and of the mutual
convenience of belligerent states, that coast fishing vessels, with their implements
and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful
calling of catching and bringing in fresh fish, are exempt from capture as prize of
war.
The exemption, of course, does not apply to coast fishermen or their vessels if
employed for a warlike purpose, or in such a way as to give aid or information to
the enemy, nor when military or naval operations create a necessity to which all
private interests must give way.
Nor has the exemption been extended to ships or vessels employed on the high
sea in taking whales or seals or cod or other fish which are not brought fresh to
market, but are salted or otherwise cured and made a regular article of commerce.
ICJ took us down memory land and referred to the following historical events to
prove that fishing vessels and its cargo were exempted from capture and deemed
as prizes of war:
1. Various writers of international law.
2. Treaty between King of England and King of France concerning the safety
and treatment of the fishermen from either country.
3. Treaty which protects and allows fishermen from both countries to engage in
their livelihood until January of the preceding year; it was made out of a
fierce war between Spain and France (1521)
4. Permission of herring fishery in time of war between French and Dutch
edicts in 1536.
5. Maritime/Admiralty Jurisdiction (1661) Provides fishing truce if there is
reciprocity
6. Louis XIV and the States General of Holland granted liberty to fish along the
coasts of France, Holland and England. (1675)
7. Observed custom during the time of the US War of Independence.
8. Treaty between US and Prussia, that citizens of both States cannot be
disturbed in their occupation and employment, in the event that war would
break out. (1785)
9. US-Mexico War, where the US exempted coast fishing boats from capture.
(1846)
10. Among others!!!
Proof of the vessels being for commercial purposes:
They were of 25 and 35 tons burden, respectively. They carried large tanks in
which the fish taken were kept alive. They were owned by citizens of Havana, and
the owners and the masters and crew were to be compensated by shares of the
catch. One of them had been 200 miles from Havana, off Cape San Antonio, for 25
days, and the other for 8 days off the coast of Yucatan. They belonged, in short,
to the class of fishing or coasting vessels of from 5-20 tons burden, and from 20
tons upwards, which, when licensed or enrolled as prescribed by the Revised
Statutes, are declared to be vessels of the United States, and the shares of whose
men, when the vessels are employed in fishing, are regulated by statute.
North Sea Continental Shelf Cases (Germany v. Denmark; Germany v.
Netherlands, ICJ Report, 1969)
Facts:
ICJ is asked to determine the delimitation in the North Sea Continental Shelf for
Germany, Denmark and Netherlands. Germany sought to i
Contentions
Federal Republic (Germany) Denies the obligatory character for States not
parties to the Geneva Convention;
The States concerned should have a just and equitable share of the available
continental shelf, in proportion to the length of its coastline or sea-frontage;
Proposed the method of the coastal front, or facade, constituted by a straight
baseline joining these ends, upon which the necessary geometrical constructions
would be erected.
Assuming arguendo that the equidistance method contended by Denmark and
Netherlands was held to be applicable, the German coast would be a special
circumstance such as to be an exception.
Denmark and Netherlands The matter is governed by Article 6 of the Convention
on the Continental Shelf concluded at Geneva on 29 April 1958. (equidistance-
special circumstances)
. . .in the absence of agreement by the Parties to employ another method or to
proceed to a delimitation on an ad hoc basis, all continental shelf boundaries must
be drawn by means of an equidistance line, unless, or except to the extent to
which, "special circumstances" are recognized to exist,an equidistance line
being, it will be recalled, a line every point on which is the same distance away
from whatever point is nearest to it on the coast of each of the countries
concerned-or rather, strictly, on the baseline of the territorial sea along that coast.
As regards what constitutes "special circumstances", all that need be said at this
stage is that according to the view put forward on behalf of Denmark and the
Netherlands, the configuration of the German North Sea coast, its recessive
character, and the fact that it makes nearly a right-angled bend in mid-course,
would not of itself constitute, for either of the two boundary lines concerned, a
special circumstance calling for or warranting a departure from the equidistance
method of delimitation: only the presence of some special feature, minor in itself
such as an islet or small protuberancebut so placed as to produce a
disproportionately distorting effect on an otherwise acceptable boundary line
would, so it was claimed, possess this character. . .
Issue:
Whether or not the 1958 Geneva Convention is binding for all parties in the
present case. Whether or not the Equidistance Principle, contended by Denmark
and Netherlands, constitutes as a mandatory rule
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Whether or not Article 6 of the 1958 Geneva Convention is binding on the Federal
Republic of Germany, as a customary law (through conduct, public statements and
proclamations) , notwithstanding the fact that the latter did not ratify it.
Held: Equidistance method is not obligatory as between the parties; the use of a
method of delimitation is obligatory
FEDERAL REPUBLIC OF GERMANY DID NOT RATIFY THE TREATY
The Geneva Convention is in force for any individual State only in so far as, (1)
having signed and ratified it within the time-limit; or (2) have acceded to it.
Although Denmark and Netherlands both signed and ratified the treaty, the Federal
Republic of Germany signed the treaty but never ratified it. It is consequently not
a party to the treaty.
It doesnt follow that one State, who signed a treaty but never ratified it, could be
said to have impliedly intended itself to be bound by the stipulations.
EQUIDISTANCE RULE HAS NOT ATTAINED THE STATUS OF CUSTOMARY
LAW, BECAUSE OF THE FOLLOWING
1. Truman Proclamation (1945) the coastal State as having an original,
natural, and exclusive (in short a vested) right to the continental shelf off its
shores
2. International Law Commission of the UN (1950 - 1956) No indication that
the equidistance rule would be adopted; it was later on consulted by the
Committee of Experts who considered it a mere 1 out of 4 methods;
INSTANT CUSTOMARY INTERNATIONAL LAW IS POSSIBLE, BUT DID
NOT HAPPEN IN THIS CASE
The provision concerned should be of a fundamentally norm-creating character
such as could be regarded as forming the basis of a general rule of law. Yet in the
particular form in which it is embodied in Article 6 of the Geneva Convention, and
having regard to the relationship of that Article to other provisions of the
Convention, this must be open to some doubt.
A widespread and representative participation in the convention might suffice of
itself, provided it included that of States whose interests were specially affected.
(Extensive and virtually uniform to show it is a binding law)
1. The obligation to use the equidistant method is put to second since what is
primary are agreements.
2. The fact that there are unresolved controversies regarding Article 6, such as
this case, puts doubt in its norm-creating character.
3. The ratification and accession is insufficient.
4. The ability to make reservations over such Article puts more doubt.
5. State practice should have been both extensive and virtually uniform in the
sense of the provision invoked;and should moreover have occurred in such
a way as to show a general recognition that a rule of law or legal obligation
is involved.
Not only must the acts concerned amount to a settled practice, but they must also
be such, or be carried out in such a way, as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of Iaw requiring it. The
need for such a belief, i.e., the existence of a subjective element, is implicit in the
very notion of the opinio juris sive necessitatis. The States concerned must
therefore feel that they are conforming to what amounts to a legal obligation. The
frequency, or even habitual character of the acts is not in itself enough.
ICJ DELIMITED THE NORTH SEA CONTINENTAL SHELF BASED ON
EQUITY
On a foundation of very general precepts of justice and good faith, actual rules of
law are here involved which govern the delimitation of adjacent continent shelves-
that is to say, rules binding upon States for all delimitations;in short, it is not a
question of applying equity simply as a matter of abstract justice, but of applying a
rule of law which itself requires the application of equitable principles, in
accordance with the ideas which have always underlain the development of the
legal rgime of the continental shelf in this field.
1. By agreement
2. If limits overlap, it should be divided between them in agreed proportions.
1. If they cannot agree in the overlap, equal
Factors to be considered by the parties:
1. General configuration of the coasts, and presence of special/unusual
features;
2. Physical and geological structure of the continental shelf areas involved;
3. Reasonable degree of proportionality
Continental Shelf Case
Asylum Case
October 3, 1948: A military rebellion broke out and a political party was charged
with the preparation and direction of such. (American Peoples Revolutionary
Party)
Victor Raul Haya de la Torre was denounced as responsible and was prosecuted on
military rebellion charges.
January 3, 1949: Haya de la Torre sought and was granted asylum in the
Columbian Embassy, Lima
January 4, 1949: Colombian ambassador informed the Peruvian government of the
asylum and sought for the safe-conduct of De la Torre. (he was allegedly qualified
as a political refugee.
The Peruvian Government disputed this qualification and refused to grant the safe-
conduct.
Issue:
Whether or not Bolivia may unilaterally declare qualifications to crimes involving
political prosecution
Whether or not Peru was obliged to conduct a safe-passage for De La Torre
Bolivian Contentions and Ruling:
1. Bolivian Agreement The decision to grant asylum derogated from the
sovereignty of the territorial State. (In this case, Peru)
2. Havana Convention Did not recognize the right of unilateral qualification
either explicitly or implicitly; The clause further provides that there must be
a demand of departure of the refugee by the territorial State. After such
demand, the diplomatic Agent may then require a safe-conduct. (Peru did
not demand for De La Torres departure, thus they were not bound to deliver
a safe-conduct). The Havana Convention was intended when there was
subordination of justice to the executive or the abolition of judicial
guarantees.
3. Convention of Montevideo Not ratified by Peru, thus cannot be invoke
against them
4. American International Law Colombia had not proven the existence of
regional or local uniform practice of unilateral qualification as a right of the
State of refuge and an obligation upon the territorial State.
Anglo-Norwegian Fisheries Case (UK v. Norway)
Issue: Whether or not the lines laid down in the 1935 Decree for the purposes of
delineation have been in accordance with international law.
Held:
The ten-mile rule has not acquired the authority of a general rule of international
law, neither in respect of bay nor the waters separating the islands of an
archipelago.
International law takes into account the diversity of facts and concedes that the
delimitation must be adapted to the special conditions obtaining in different
regions. The Judgment notes that a Norwegian Decree of 1812, as well as a
number of subsequent texts (Decrees, Reports, diplomatic correspondence) show
that the method of straight lines, imposed by geography, has been established in
the Norwegian system and consolidated by a constant and sufficiently long
practice. The application of this system encountered no opposition from other
States. Even the United Kingdom did not contest it for many years: it was only in
1933 that the United Kingdom made a formal and definite protest. And yet,
traditionally concerned with maritime questions, it could not have been ignorant of
the reiterated manifestations of Norwegian practice, which was so well-known.
The general toleration of the international community therefore shows that the
Norwegian system was not regarded as contrary to international law.
Fisheries Jurisdiction Case
April 14 1972 UK Govt instituted proceedings against Iceland in respect of a
dispute concerning the proposed extension by the Icelandic Government alf its
exclusive fisheries jurisdiction to a distance of 50 nautical miles from the baselines
around its coasts.
Minister for Foreign Affairs of Iceland informed the ICJ that his Government was
not willing to confer jurisdiction on it and would not appoint an Agent. By Order of
17 and 18 August 1972 the Court indicated certain interim measures of
South West Africa Case, (2nd Phase, ICJ Report, 1966)
Actio popularis (the action to obtain remedy by a person or a group in the name of
the general public without being, or directly representing the victim) is not
recognized as a general principle of law. In international law, it refers to the action
taken by a State in the name of the interational community even if it is not directly
the victim.
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If the violation was jus cogens, a state may sue another under the basis of actio
popularis.
BARCELONA TRACTION CASE:
Facts:
Barcelona Traction is a company based in Toronto, Canada.
One of its subsidiary companies is located and incorporated in Spain, which is
providing the majority of Catalonias electricity requirements during the Spanish
War.
1936: Barcelona Traction sought to issue several bonds in sterling but it couldnt
be effected because of the Spanish War. After the war, Spanish exchange control
authorities refused to authorize the transfer of the foreign currency necessary for
the bonds.
1948: Three Spanish bond-holders petitioned the court of Reus to declare
Barcelona Traction bankrupt for failure to pay the interest of the bonds, which the
court did on February 12, 1948.
A new company (Fecsa) eventually came to own the shares of the subsidiary
companies through a public auction and later on the complete control of the
subsidiary companies.
Cases were filed by various companies and persons but without success. The
Court later found out that during the bankruptcy proceedings, Barcelona had no
notice, thus was not able to be represented and had no opposition within the 8
days. (Belgium contended
Belgium filed a suit for damages, in behalf of some Belgian Nationals who were
stockholders of Barcelona Traction and Light Corp., against Spain. They allege that
the Spanish State committed acts which are contrary to international law and they
were damaged from it.
Spain contends that
1. Belgium does not have the capacity to submit any claim for a Canadian
company even if the stockholders are Belgian.
2. Spanish remedies had not been exhausted yet.
Main Issue:
Whether or not Belgium has capacity
Whether or not Spanish remedies has been exhausted and if no, do they need to
be.
Held: 15 votes to 1, rejected the Belgian claim
BELGIAN GOVERNMENT HAD NO JUS STANDI
An act infringing only the companys rights did not involve responsibility towards
the shareholders, even if their interests were affected. In order for the situation to
be different, the act complained of must be aimed at the direct rights of the
shareholder as such.
An injury to the shareholders interest resulting from an injury to the rights of the
company was insufficient to found a claim. Where it was a question of an unlawful
act committed against a company representing foreign capital, the general rule of
international law authorized the national State of the company alone to exercise
diplomatic protection for the purpose of seeking redress. No rule of international
law expressly conferred such a right on the shareholders national State.
A State could make a claim when investments by its nationals abroad (such
investments being part of a States national economic resources, were prejudicially
affected in violation of the right of the State itself to have its national enjoy a
certain treatment. In the present case, that right could only result from a treaty or
special agreement. No instrument of such a kind was in force between Belgium
and Spain.
NO SPECIAL CIRCUMSTANCES FOR WHICH GENERAL RULE MAY NOT
TAKE EFFECT
Two considerations need to be studied:
1. Company having ceased to exist (Entity still existed)
2. Protecting State of the company lacking capacity to take action (Canada
exercised protection for Barcelona Traction for years)
EQUITY
For reasons of equity, a State should be able, in certain cases, to take up the
protection of its nationals, shareholders in a company which had been the victim
of a violation of international law. The Court considered that the adoption of the
theory of diplomatic protection of shareholders as such would open the door to
competing claims on the part of different States, which could create an
atmosphere of insecurity in international economic relations. In the particular
circumstances of the present case, where the companys national State was able
to act, the Court was not of the opinion that jus standi was conferred on the
Belgian Government by considerations of equity.
EXHAUSTION OF REMEDIES IN SPAIN
Since no jus stands before the Court had been established, it was not for the
Court to pronounce any aspect of the case relating to the exhaustion of remedies.
1. Erga Omnes
2. Erga Omnes Inter Partes
1. Nationality link
2. Exhaustion of prior remediess
Judicial Decisions
Art. 38(1)(d) of the Statute of the ICJ directs the Court to apply judicial
decisions as subsidiary means for the determination of rules of law.
Art. 59, Statute of the ICJ:
The decision of the Court has no binding force except between the parties and in
respect of that
particular case.
There is not formal stare decisis doctrine, as known in common law systems; in
international law, international courts are not obliged to follow previous decisions,
although they almost always take previous decisions into account.
Judicial of national courts are also covered by Art. 38(1)(d); many of the rules of
international law on topics such as diplomatic immunity have been developed by
judgments of national courts. But judgments of national courts need to be used
with caution; the judges may look as if they are applying international law (and
may actually believe that they are doing so), when in fact all that they are
applying is some peculiar rule of their own national law.
Most highly qualified publicists (Learned writers)
The word publicists means learned writers. Like judicial decisions, learned
writings can be evidence of customary law, but they can also play a subsidiary role
in developing new rules of law.
While international arbitral tribunals frequently cite textbooks and authors, the
International Court of Justice refrains from doing so in its decisions, as distinct
from the dissenting or concurring opinions of individual judges.
Acts of international organization
A resolution of the United Nations General Assembly can be evidence of customary
law because it reflects the views of the states voting for it. If many states vote
against it, its value as evidence of customary law is correspondingly reduced.
A resolution declaring that X ought to be the law is obviously not evidence that X
is the law.
But the value of such a resolution varies in proportion to the number of states
voting for it.
A resolution passed at a meeting of an international organization is never
conclusive evidence of customary law. It has to be examined in conjunction with
all the other available evidence of customary law, and it may thus be possible to
prove that the resolution is not a correct statement of customary law. In the end,
if there is no corresponding practice, the mere statement on what the law is
supposed to be is not sufficient evidence, but nothing more than an attempt on
the part of states to clarify their respective positions.
In view of the substantial numbers of negative votes and abstentions with which
several of the General Assembly resolutions on the illegality of nuclear weapons
have been adopted, the Court held that they still fall short of establishing the
existence of an opinio juris sive neccessetatis on the illegality of the use of such
weapons.
Soft law (v. Hard law)
Soft law Neither strictly binding norms of law, nor completely irrelevant political
maxims, and operate in a grey zone between law and politics. It is also considered
as a special characteristic of international economic law and of international
environmental law. Such provisions can be found, for example, in treaties not yet
in force or in resolutions of international conferences or organizations, which lack
legally binding quality.
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The emergence of soft law also has to do with the fact that states in agreement
frequently do not (yet) wish to bind themselves legally, but nevertheless wish to
adopt and test certain rules and principles before they become law. This often
facilitates consensus which is more difficult to achieve on hard law instruments.
Equity v. Ex aequo et bono
River Meuse Case (Netherlands v. Belgium)
Facts:
On May 12th, 1863, Belgium and the Netherlands concluded a Treaty the purpose
of which was to settle permanently and definitively the regime governing
diversions of water from the Meuse for the
feeding of navigation canals and irrigation channels.(1) Article I of this Treaty
provided for the construction below Maestricht, in Netherlands territory, of a new
intake which would constitute the feeding conduit for all canals situated below
that town and for irrigation in the Campine and in the Netherlands.
The Belgian Government accepted the Treaty, in view of the fact that it provided
for only one intake and that to be situated in foreign territory. When the economic
development of the Belgian and Netherlands provinces of Limburg necessitated
the enlargement of certain canals and the construction of new works, the two
States signed in 1925 a new agreement designed to settle the differences which
had arisen in respect of the construction programmes. This was rejected by the
Netherlands First Chamber.
The Netherlands proceeded to construct and complete the Juliana Canal, the
Bosscheveld Lock and the Borgharen barrage, while Belgium began the
construction of the Albert Canal, unfinished at the time of the judgment, a barrage
at Monsin and a lock at Neerhaeren.
The Netherlands sued Belgium in the Court by means of a unilateral application,
based on the declarations made by both the Netherlands and Belgium in which
they accepted the compulsory jurisdiction of the Court under Article 36 (a) of the
Statute. Belgium, made a counter-claim.
Issue: Whether or not the works carried out by Belgium were contrary to the
Treaty of 1863.
Netherlands contention:
Article I of the Treaty,(4) which provides for a single feeder, situated in
Netherlands territory, gives them the right to supervise and control all the intakes,
situated not only in their own territory, but also in Belgian territory.
Held: Both claims REJECTED;
In order to allow the existence of such inequality between the Parties to a treaty
freely concluded, the text of the treaty must say so in precise terms. In the
absence of such terms, the Court rejects the Netherlands submission.
The Netherlands do not invoke a specific provision of the Treaty. The Court grants
that the Treaty has brought into existence a certain rgime which results from all
its provisions taken together and that, accordingly, it forms a complete whole, the
different provisions of which cannot be dissociated from the others and considered
in isolation. This is equally the case with Article I which must be interpreted
together with the other Articles. In the light of this Article, thus interpreted,
neither the Netherlands contention regarding the Neerhaeren Lock, nor the
Belgian reply, can be accepted in its entirety.
Nothing prevents either Belgium or the Netherlands from making such use as they
may see fit of the canals covered by the Treaty, when the canals do not leave their
own territory. Each of the two States is at liberty in its own territory to modify
such canals, to enlarge them, to trans-form them, to
fill them in and even to increase the volume of water in them, provided that the
diversion of water at the feeder mentioned in the Treaty and the volume of water
to be discharged therefrom is not affected. The same reasoning applies to the
Netherlands' criticism of the proposed supply by Belgium to a section of another
canal of water taken from the Meuse elsewhere than at Maestricht.
Having thus rejected all the Netherlands' submissions, the Court proceeds to deal
with the Belgian counter-claims, the first of which concerns the Borgharen
barrage. The Court finds that the Treaty does not forbid the Netherlands from
altering the depth of water in the Meuse at Maestricht without the consent of
Belgium, provided that neither the discharge of water through the feeder, nor the
volume of water which it must supply, nor the current in the Zuid-Willemsvaart is
thereby affected.
Justice Hudson separate opinion:
Mr. Hudson considers that there is room to apply here the principle of equity.
"A sharp division between law and equity, such as prevails in the administration of
justice in some States, should find no place in international jurisprudence. The
question here is of a general principle of law recognized by civilized nations in the
sense of Article 38 of the Statute, and the Court's recognition of equity as part of
international law is in no way restricted by the special power conferred on it to
decide a case ex aequo et bono if the Parties so agree.
It would seem to be an important principle of equity that where two parties have
assumed an identical or a reciprocal obligation; one party which is engaged in a
continuing nonperformance of that obligation should not be permitted to take
advantage of a similar nonperformance of that obligation by the other party. A
tribunal, bound by international law, ought not to shrink from applying a principle
of such obvious fairness. In equity, the Netherlands cannot ask Belgium to
discontinue the operation of the Neerhaeren Lock when the Netherlands remain
free to continue the operation of the Bosscheveld Lock. Neither of these two
requests should be granted where the circumstances are such that the judgment
would disturb that equality which is equity. If it preserves the equality between the
Parties, the judgment may better serve to facilitate their negotiations on the
conclusion of a new treaty to replace that of 1863.
Key Principle: The Statute expressly directs the application of general principles
of law recognized by civilized nations, and principles of equity have an established
place in the legal system.
Q: What general principle of law was applied by the PCIJ in deciding the case?
A: Clean hands doctrine: One who comes to court must come with clean hands
Art. 38(2), ICJ Statue (Ex aequo et bono)
Decision which overrides all other rules
2. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.
Ex aequo et bono v. Principle of non liquet
Ex Aequo Et Bono Parties agreeing that the decision need not be justified by
the rules that would govern the case at hand, but on an equitable basis.
Non Liquet The court deciding a case on an equitable basis due to the
circumstances that does not permit any rule/statute to be applied. (So the court
may apply general principles of equity) No
Hierarchy of Sources
1. Treaty Law & Customary Law (following general/special law rules)
2. General Principles of Law (since it merely fill gaps in treaty and customary
law)
3. Judicial decisions & Learned writings (Subsidiary as provided under Art.
38(1)(d); no hard-and-fast rule)
4. Equity
Persistent Objector
1. State objected to the CIL when started to emerge at the outset
2. Must be consistent
3. Objection must be categorical
Jus Cogens; definition
The basic principles of international law, which states are not allowed to contract
out of.
States cannot enter into treaties that would derogate the jus cogens norm.
What is the material source of the principle of jus cogens ? Article 53 of the
Vienna Convention on the Law of Treaties.
Applies in both during peace and war times.
Non-derogable/Peremptory norms of general international law. (Right to life is
non-derogable)
Provided under Art. 53 of the Convention on the Law of Treaties, Vienna 1969:
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm
of general international law. For the purposes of the present Convention, a
peremptory norm of general international law is a norm accepted and recognized
by the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of
general international law having the same character.
The reason why local custom is not mentioned is because the purpose of the
Convention was to codify the law of treaties only.
Guidelines in determining which source of PIL prevails over the other:
1. Jus cogens
2. Lex posterior derogat priori
3. Lex posterior generalis non derogat priori speciali
4. Lex specialis derogat legi generali
5. Consider Desuetude (mutual rejection by the parties of a treaty usually due
to the emergence of new norm.
6. If there is a clear conflict
Erga Omnes; definition
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Obligations owed by states towards the community of states as a whole.
Erga omnes is a Latin phrase which means "towards all" or "towards everyone". In
legal terminology, erga omnes rights or obligations are owed toward all. For
instance a property right is an erga omnes entitlement, and therefore enforceable
against anybody infringing that right. An erga omnes right (a statutory right) can
here be distinguished from a right based on contract, unenforceable except
against the contracting party.
Towards preserving or protecting jus cogens norm.
Article 53 of the Convention on the Law of Treaties (Vienna, 1969): A treaty is
void if, at the time of its conclusion, it conflicts with a peremptory norm of general
international law. For the purposes of the present Convention, a peremptory norm
of general international law is a norm accepted and recognized by the
international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character.
Examples: prohibition on the use of force, of genocide, slavery, gross violation of
the right of people to self-determination, racial discrimination and torture.
Erga omnes - obligations of a state to the international community (ex. no to
commit/ fail to punish international crimes; not to violate peoples right to self-
determination.)
What is the relationship of jus cogens and era omnes?
If the state wants to justify its legal standing, (effective nationality doctrine)
exercise of diplomatic protection of an international wrongful act: 1) prior
exhaustion of local remedies; 2) effective nationality link.
Erga omnes as justification for legal standing to have legal standing before the
court.
Even if the state is not the direct victim of the genocide, the court can acquire
jurisdiction (universal jurisdiction) ex. Piracy
Erga omnes inter partes - towards a specific group with the same interest affected
by a circumstance constituting an international wrongful act
WHAT WILL BIND STATES?
1. PUBLIC INTERNATIONAL LAW (See: Article 38 of the ICH Statute on Sources
of International Law: [1] Primary (3) and [2] Subsidiary (2)
2. UNILATERAL DECLARATION OF STATE DOCTRINE (See: Nuclear Test Cases;
2006 Guiding Principles on Unilateral Declaration of States): A unilateral
declaration binds the State when:
A. Publicly made and manifesting will to be bound
B. Made by an authority vested with he power to do so, such as Heads
of States, Heads of Government, and Ministers of Foreign Affairs, and other
officers representing the State in specified areas and within their competence
C. Made orally or in writing
D. Addressed to the international community or to specific state or
entity
E. Stated in clear and specific terms
F. Consistent with jus cogens
G. Will no bind third states who do not accept it
H. Not validly revoked
PHILIPPINE PRACTICE
Sec.2, Art. II of the 1987 Philippine Constitution (known as the Doctrine of
Incorporation):
The Philippine 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
Japanese Lieutenant-General Shigenori Kuroda v. Major General Jalandoni
Shigenori Kuroda (sought to nullify EO 68 (establishing National War Crimes
Office) and enjoin Melville Hussey and Robert Port from the participation of his
prosecution before the Military Commission.
Contentions:
1. Violates the constitution and local laws, since Philippines is not a signatory
nor an adherent to the Hague Convention on Rules and Regulations covering
Land Warfare
2. Melville Hussey and Robert Port are not authorized to practice law in the
Philippines thus, they could not have made a proper appearance
Issue: Whether to not EO 68 is a valid law
Held: Petition DENIED;
GENERALLY ACCEPTED PRINCIPLE OF INTERNATIONAL LAW EVEN IF
NOT A SIGNATORY YET
In accordance with the generally accepted principle of international law of the
present day including the Hague Convention the Geneva Convention and
significant precedents of international jurisprudence established by the United
Nation all those person military or civilian who have been guilty of planning
preparing or waging a war of aggression and of the commission of crimes and
offenses consequential and incidental thereto in violation of the laws and customs
of war, of humanity and civilization are held accountable therefor. Consequently in
the promulgation and enforcement of Execution Order No. 68 the President of the
Philippines has acted in conformity with the generally accepted and policies of
international law which are part of the our Constitution.
The promulgation of said executive order is an exercise by the President of his
power as Commander in chief of all our armed forces
Petitioner argues that respondent Military Commission has no Jurisdiction to try
petitioner for acts committed in violation of the Hague Convention and the Geneva
Convention because the Philippines is not a signatory to the first and signed the
second only in 1947. It cannot be denied that the rules and regulation of the
Hague and Geneva conventions form, part of and are wholly based on the
generally accepted principals of international law.
In fact these rules and principles were accepted by the two belligerent nation the
United States and Japan who were signatories to the two Convention, Such rule
and principles therefore form part of the law of our nation even if the Philippines
was not a signatory to the conventions embodying them for our Constitution has
been deliberately general and extensive in its scope and is not confined to the
recognition of rule and principle of international law as continued inn treaties to
which our government may have been or shall be a signatory.
AMERICAN LAWYERS WERE VALID COUNSELS
Petitioner challenges the participation of two American attorneys namely Melville
S. Hussey and Robert Port in the prosecution of his case on the ground that said
attorney's are not qualified to practice law in Philippines in accordance with our
Rules of court and the appointment of said attorneys as prosecutors is violative of
our national sovereignty.
In the first place respondent Military Commission is a special military tribunal
governed by a special law and not by the Rules of court which govern ordinary
civil court. It has already been shown that Executive Order No. 68 which provides
for the organization of such military commission is a valid and constitutional law.
There is nothing in said executive order which requires that counsel appearing
before said commission must be attorneys qualified to practice law in the
Philippines in accordance with the Rules of Court. In facts it is common in military
tribunals that counsel for the parties are usually military personnel who are neither
attorneys nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not violative of our
nation sovereignty. It is only fair and proper that United States, which has
submitted the vindication of crimes against her government and her people to a
tribunal of our nation should be allowed representation in the trial of those very
crimes. If there has been any relinquishment of sovereignty it has not been by our
government but by the United State Government which has yielded to us the trial
and punishment of her enemies. The least that we could do in the spirit of comity
is to allow them representation in said trials.
USA v. Hon. Guinto
Facts:
Involves three cases:
(1) GR 76607: Irregularities in the bidding of concessionaire for barber services
where it was Dizon who was awarded the operations. Valencia, Tanglao and
del Pilar sought for a rebidding and a WPI, which the court granted. USA
Officers moved to dismiss alleging that they cannot be sued.
(2) GR 79470: Genove was terminated as the cook of the US Air Force
Recreation Center because it was alleged that he pissed in the soup served
to the club members. Genove sued for damages of such termination but was
challenged by Lamachia, Belsa, Cartalla, Orascion who alleged that they are
immune from suit.
(3) GR 80018: Bautista was terminated as a barracks boy in Camp O Donnell
through filing of charges for violation of the dangerous drug act following a
buy-bust operation. He filed a case for damages against US Air Force officers
and special agents of the Air Force Office of Special Investigators (King, Dye,
Bostick). The latter contested the allegations, stating that they were only
doing their duty in performing their tasks.
(4) GR 80258: Some respondents claim that the petitioners beat them up,
handcuffed them and released dogs to bite them. Petitioners state that it
was because the respondents were resisting an arrest for theft.
Issue: Whether or not the USA, as a sovereign state, is immune from suit in the
Philippines
Held: Petition DISMISSED, GRANTED, GRANTED, DISMISSED;
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DOCTRINE OF STATE IMMUNITY APPLIES TO THE USA;
The rule that a state may not be sued without its consent, now expressed in
Article XVI, Section 3, of the 1987 Constitution, is one of the generally accepted
principles of international law that we have adopted as part of the law of our land
under Article II, Section 2. This latter provision merely reiterates a policy earlier
embodied in the 1935 and 1973 Constitutions and also intended to manifest our
resolve to abide by the rules of the international community.
Even without such affirmation, we would still be bound by the generally accepted
principles of international law under the doctrine of incorporation. Under this
doctrine, as accepted by the majority of states, such principles are deemed
incorporated in the law of every civilized state as a condition and consequence of
its membership in the society of nations. Upon its admission to such society, the
state is automatically obligated to comply with these principles in its relations with
other states.
The doctrine is sometimes derisively called "the royal prerogative of dishonesty"
because of the privilege it grants the state to defeat any legitimate claim against it
by simply invoking its nonsuability. That is hardly fair, at least in democratic
societies, for the state is not an unfeeling tyrant unmoved by the valid claims of its
citizens. In fact, the doctrine is not absolute and does not say the state may not
be sued under any circumstance. On the contrary, the rule says that the state may
not be sued without its consent, which clearly imports that it may be sued if it
consents.
In the case of the United States of America, the customary rule of international
law on state immunity is expressed with more specificity in the RPUS Bases Treaty.
Article III thereof provides as follows:
It is mutually agreed that the United States shall have the rights, power and
authority within the bases which are necessary for the establishment, use,
operation and defense thereof or appropriate for the control thereof and all the
rights, power and authority within the limits of the territorial waters and air space
adjacent to, or in the vicinity of, the bases which are necessary to provide access
to them or appropriate for their control.
There is no question that the United States of America, like any other state, will be
deemed to have
impliedly waived its nonsuability if it has entered into a contract in its proprietary
or private capacity. It is only when the contract involves its sovereign or
governmental capacity that no such waiver may be implied.
1ST CASE (BARBERSHOP; USA IS SUABLE BECAUSE OF THE
PROPRIETARY NATURE OF THE RELATIONSHIP) GR 76607
The barbershops subject of the concessions granted by the United States
government are commercial enterprises operated by private person's. They are not
agencies of the United States Armed Forces nor are their facilities demandable as
a matter of right by the American servicemen. These establishments provide for
the grooming needs of their customers and offer not only the basic haircut and
shave (as required in most military organizations) but such other amenities as
shampoo, massage, manicure and other similar indulgences. And all for a fee.
Interestingly, one of the concessionaires, private respondent Valencia, was even
sent abroad to improve his tonsorial business, presumably for the benefit of his
customers. No less significantly, if not more so, all the barbershop concessionaires
are under the terms of their contracts, required to remit to the United States
government fixed commissions in consideration of the exclusive concessions
granted to them in their respective areas.
This being the case, the petitioners cannot plead any immunity from the complaint
filed by the private respondents in the court below.
2ND CASE (PISS-SOUP; USA IS SUABLE BUT ISNT LIABLE) GR 79470
SC assumed that the restaurant services offered at the John Hay Air Station
partake of the nature of a business enterprise undertaken by the United States
government in its proprietary capacity. Such services are not extended to the
American servicemen for free as a perquisite of membership in the Armed Forces
of the United States. Neither does it appear that they are exclusively offered to
these servicemen; on the contrary, it is well known that they are available to the
general public as well, including the tourists in Baguio City, many of whom make it
a point to visit John Hay for this reason. All persons availing themselves of this
facility pay for the privilege like all other customers as in ordinary restaurants.
Although the prices are concededly reasonable and relatively low, such services
are undoubtedly operated for profit, as a commercial and not a governmental
activity.
The consequence of this finding is that the petitioners cannot invoke the doctrine
of state immunity to justify the dismissal of the damage suit against them by
Genove. Such defense will not prosper even if it be established that they were
acting as agents of the United States when they investigated and later dismissed
Genove. For that matter, not even the United States government itself can claim
such immunity. The reason is that by entering into the employment contract with
Genove in the discharge of its proprietary functions, it impliedly divested itself of
its sovereign immunity from suit.
But these considerations notwithstanding, we hold that the complaint against the
petitioners in the court below must still be dismissed. While suable, the petitioners
are nevertheless not liable.
The dismissal of the private respondent was decided upon only after a thorough
investigation where it was established beyond doubt that he had polluted the soup
stock with urine. The investigation, in fact, did not stop there. Despite the
definitive finding of Genove's guilt, the case was still referred to the board of
arbitrators provided for in the collective bargaining agreement. This board
unanimously affirmed the findings of the investigators and recommended Genove's
dismissal. There was nothing arbitrary about the proceedings. The petitioners
acted quite properly in terminating the private respondent's employment for his
unbelievably nauseating act. It is surprising that he should still have the temerity
to file his complaint for damages after committing his utterly disgusting offense.
3RD CASE (DRUGGIE; NOT SUABLE) GR 80018
It is clear from a study of the records that the individually named petitioners
therein were acting in the exercise of their official functions when they conducted
the buy-bust operation against the complainant and thereafter testified against
him at his trial. The said petitioners were in fact connected with the Air Force
Office of Special Investigators and were charged precisely with the function of
preventing the distribution, possession and use of prohibited drugs and
prosecuting those guilty of such acts. It cannot for a moment be imagined that
they were acting in their private or unofficial capacity when they apprehended and
later testified against the complainant. It follows that for discharging their duties
as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued.
The private respondent invokes Article 2180 of the Civil Code which holds the
government liable if it acts through a special agent. The argument, it would seem,
is premised on the ground that since the officers are designated "special agents,"
the United States government should be liable for their torts.
There seems to be a failure to distinguish between suability and liability and a
misconception that the two terms are synonymous. Suability depends on the
consent of the state to be sued, liability on the applicable law and the established
facts. The circumstance that a state is suable does not necessarily mean that it is
liable; on the other hand, it can never be held liable if it does not first consent to
be sued.
Liability is not conceded by the mere fact that the state has allowed itself to be
sued. When the state does waive its sovereign immunity, it is only giving the
plaintiff the chance to prove, if it can, that the defendant is liable.
The said article establishes a rule of liability, not suability. The government may be
held liable under this rule only if it first allows itself to be sued through any of the
accepted forms of consent.
4TH CASE (GANGBANG; SC CANNOT DECIDE YET) GR 80258
The record is too meager to indicate if the defendants were really discharging their
official duties or had actually exceeded their authority when the incident in
question occurred. Lacking this information, this Court cannot directly decide this
case. The needed inquiry must first be made by the lower court so it may assess
and resolve the conflicting claims of the parties on the basis of the
evidence that has yet to be presented at the trial. Only after it shall have
determined in what capacity the petitioners were acting at the time of the incident
in question will this Court determine, if still necessary, if the doctrine of state
immunity is applicable.
JUS IMPERII V. JUS GESTIONIS: Important in distinguishing whether state
immunity may be waived
CONSIDER ICSID IN STATE IMMUNITY
ICSID is a mechanism (not a court) where a State may be sued
International Center for Settlement of Investment Disputes (of the World Bank
Group) - allowing foreign investors directly initiate a suit for arbitration or
conciliation involving disputes against states (e.g. violation by a member state of
the fair and equal treatment rule involving foreign investors)
Take note: ICSID is only a framework, not a court.
Example of accredited bodies: Permanent Court of Arbitration in Hague
Fraport v. Philippines (PIATCO and Philippine Government)
Holy See v. Hon. Rosario and Starbright Enterprises
Facts:
Holy Sees lot (Lot 5-A) and PRCs lot (Lot 5-B and Lot 5-D) were sold to Ramon
Licup. The latter paid an earnest money of 100,000 to Msgr. Cirilos and then
assigned his rights to the sale to Starbright Sales.
It was stipulated that the Holy See must evict the squatters but the latter failed to
do so. Thus, they asked Starbright to do it with the consideration of returning the
earnest money. Starbright counter-proposed, agreeing to do it, provided that the
purchase price be lowered. When Starbright received the earnest money, it tried to
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give it back to the Holy See, but only to find out that the lots were already sold to and that they stubbornly refuse to leave the premises, has been admitted by
Tropicana private respondent in its complaint.

Starbright sought for damages against Holy See and to annul the sale between the Reyes v. Bagatsing
Holy See & PRC and Tropicana in RTC-Makati.
South-West Africa Cases:
Holy See moved to dismiss, alleging sovereign immunity from suit. RTC denied the South Africa is the Mandatary of Ethiopia and Liberia.
motion, stating that the Holy See shed its immunity when it entered into a
business contract. A Mandatary is a commission from the League of Nations to a member state to
administer a territory.
Holy See elevated the matter to the SC, which was intervened by the DFA.
(claiming that it has a legal interest in the outcome of the case as regards the Ethiopia and Liberia filed a claim in the ICJ, alleging that South Africa contravened
diplomatic immunity of petitioner, and that it "adopts by reference, the allegations various stipulations in the Mandate given by the League of Nations, namely:
contained in the petition of the Holy See insofar as they refer to arguments
relative to its claim of sovereign immunity from suit) 1. Military training of natives
2. Establishment of military, naval bases and fortifications
Issue: Whether or not the Holy See is immune from suit
Held: Claim by Ethiopia and Liberia is REJECTED;
Holy See contentions: respondent trial court has no jurisdiction over petitioner,
being a foreign state enjoying sovereign immunity actio popularis thesis 1966 transposition of the doctrine in human rights
violations
Starbright contentions: the doctrine of non-suability is not anymore absolute
and that petitioner has divested itself of such a cloak when, of its own free will, it Guidlines in Customary International Law
entered into a commercial transaction for the sale of a parcel of land located in the 1. Jus Cogens norms always prevail (see Art. 53 of the convention on the law
Philippines of treaties, 1969)
2. Lex posterior derogat priori
Held: Petition GRANTED; 3. Lex posterior generalis non derogat prioiri speciali
4. Lex specilis derogat legi generali
As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted 5. Consider desuetude (mutual rejection by the parties of a treaty usually due
the generally accepted principles of International Law. Even without this to the emergence of new norm)
affirmation, such principles of International Law are deemed incorporated as part 6. Bernhardt (1992): If there is clear conflict, treaties prevail over custom and
of the law of the land as a condition and consequence of our admission in the custom prevails over general principles and the subsidiary sources.
society of nations.

Classical theory Without its consent, a sovereign cannot be made a respondent

in the courts of another sovereign.

Restrictive theory The immunity of the sovereign is recognized only with regard
to public acts (jure imperii), but not with private acts (jure gestionis)

This Court has considered the following transactions by a foreign state with private
parties as acts jure imperii: (1) the lease by a foreign government of apartment
buildings for use of its military officers; (2) the conduct of public bidding for the
repair of a wharf at a United States Naval Station; and (3) the change of
employment status of base employees.

On the other hand, this Court has considered the following transactions by a
foreign state with private parties as acts jure gestionis: (1) the hiring of a cook in
the recreation center, consisting of three restaurants, a cafeteria, a bakery, a store,
and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to
American servicemen and the general public; and (2) the bidding for the operation
of barber shops in Clark Air Base in Angeles City. The operation of the restaurants
and other facilities open to the general public is undoubtedly for profit as a
commercial and not a governmental activity. By entering into the employment
contract with the cook in the discharge of its proprietary function, the United
States government impliedly divested itself of its sovereign immunity from suit.

Certainly, the mere entering into a contract by a foreign state with a private party
cannot be the ultimate test. Such an act can only be the start of the inquiry. The
logical question is whether the foreign state is engaged in the activity in the
regular course of business. If the foreign state is not engaged regularly in a
business or trade, the particular act or transaction must then be tested by its
nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it
is an act jure imperii, especially when it is not undertaken for gain or profit.

In the case at bench, if petitioner has bought and sold lands in the ordinary course
of a real estate business, surely the said transaction can be categorized as an act
jure gestionis. However, petitioner has denied that the acquisition and subsequent
disposal of Lot 5A were made for profit but claimed that it acquired said property
for the site of its mission or the Apostolic Nunciature in the Philippines. Private
respondent failed to dispute said claim.

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila.
The donation was made not for commercial purpose, but for the use of petitioner
to construct thereon the official place of residence of the Papal Nuncio. The right
of a foreign sovereign to acquire property, real or personal, in a receiving state,
necessary for the creation and maintenance of its diplomatic mission, is recognized
in the 1961 Vienna Convention on Diplomatic Relations (Arts. 2022). which
entered into force in the Philippines on November 15, 1965.

The decision to transfer the property and the subsequent disposal thereof are
likewise clothed with a governmental character. Petitioner did not sell Lot 5A for
profit or gain. It merely wanted to dispose off the same because the squatters
living thereon made it almost impossible for petitioner to use it for the purpose of
the donation. The fact that squatters have occupied and are still occupying the lot,

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