LEGAL STATUS OF EASERN GREENLAND
Covenant of the League of Nation –
FACTS:
Greenland was colonized and was a tribute
to the Kingdom of Norway in 13th Century
In 1380, Norwway and Denmark were
united under the same Crown. But there is
no evidence showing that during the time of
Greenland, it is of Norwegian possession.
In 1721, settlements were founded on west
coast in Norway
Greenland was subjected to Greenland trade
In 1822, Greenland costs were explored.
Danish trading and mission station was
established. A Danish decree was issued to
effect the stations on east and west coasts.
Hence it became under Danish colonies and
stations.
In 1916, US, at the request of Denmark,
signed a declaration that they would not
ibject to Danish Government extending their
political and economic interests to the whole
of Greenland
In 1919, Denmark sent its FA Minister to
renew an unofficial assurance that it will not
have stake in Spitzbergen and would raise
no objection to Norway’s claims there.
Norway replied that it will not make any
difficulty to the Denmark occupation in
Greenland provided that it will respect
Norway’s liberty of hunting and fishing on
the west coast. Denmark was not prepared
to be bound by this assurance.
Meanwhile, Norwegian hunters hoisted
Norwegian flag in Mackenzie Bay, Eastern
Greenland and announced they occupied the
territory bet Carlsbeg Fjord (South) Bessel
Fjord (north) in the name of the King.
The Norwegian Government regarded that
act as private act, which do not influence its
policy. But nonetheless, it proceeded (by
virtue of Royal Resoulution) that the same
area covered by the territory covered by
Norway “Eirik Raudes Land”
Danish Government submitted the question
HELD: Court held that Danmark’s claim is
not founded upon any particular act of
occupation but merely on peaceful and
continuous display of State authority
- Intent and will to act as
sovereign and some actual
exercise of such authority
- Hence, it is one of the most
obvious form of exercise of
sovereign power
That when Norway disagrees, Court held
that it is incumbent upon Norway to show
proof of its contention.
Denmark relied on series of conventions
Denmark addressed foreign governments
bet 1915-1921 to recognize its position in
Greenland
- Notes made were not clear BUT
Denmark was seeking in these
application the recognition of
existing sovereignty and not
consent to the acquisition
Decree of May 10, 1921 proves Denmark’s
exercise of governmental function over the
disputed territory
In 1931, Denmark successfully possessed a
valid title to the sovereignty over Greenland
1. Termination of the Union bet
Denmark and Norway
2. Bilateral, multilateral agreements
showing Norway recognizes Danish
sovereignty over Greenland
3. Ihlen Declaration – engagement
obliging Norway to refrain from
occupying any part of Greenland
4.
Norway was bound to abstain from
occupying any part of Greenland
CONCLUSION: declaration of Norway is
invalid as it violates existing legal situation
NUCLEAR TEST CASES
FACTS:
France argues that it is not bound anymore
by General Act since it made a declaration in
1966, citing its reservation for disputes
concerting national defense. is nuclear
weapon development within the concept of
national defense?
Austria filed a case against France regarding
the holding of atmospheric tests of nuclear
weapons in the Pacific Ocean. And to declare
such act inconsistent with applicable rules of
international law.
It shows that France is still planning to carry
out a series of tests in the Pacific folong its
1966-1972 tests. French Parliament
announced that Austria’s protests will not
moify its nuclear testing program
But France denies allegations of Austria that
its test did not constitute danger to the
health of Austrians. And no International
Law was violated
HELD: French government should desist
Acting under Art 33 of the General Act and
Art 41 of the Statute of the Court, Court
requires the French Government to desist
from carrying out atmospheric tests.
The General Act of 1928 was an integral part
of the League of Nations system and still in
force between parties; not modified by
France unilaterally (reservation re disputes
concerning activities connected with
national defense)
ON THE ISSUE OF COURT JURISDICION
Jurisdiction was distinguished from
admissibility (of application by Austria)
- Art 17 GA – existence of any fact
which IF ESTABLISHED would
constitute a breach of
international obligation
- Court becomes competent to
hear a case when there’s prima
facie proof of its competence
o Court can only be
moved if it is
competent
o Merits present hen
interim measures are
contemplated
- Declaration of Acceptance of the
Optional Clause – confers
jurisdiction to the court
- Prima facie test must consider
the validity of the treaty cited
by the parties
INERPRETATION OF PEACE TREATIES CASE
FACTS: GA adopted Reso 272 expressing
deep concern that Bulgaria and Hungary
suppress human rights of its people, in
violation of the Treaties of Peace with
Bulgaria and Hungary
Allied and Associated Powers accused
Bulgaria and Hungary of violating Treaties of
Peace, called their governments to adopt
remedial measures
They asked BHR to appoint representatives
to the Treaty Commissions; declined saying
they had no obligation to do so.
in 1949, the General Assembly of the UN
adopted a Resolution asking the court for an
advisory opinion on the following:
1. Do diplomatic exchanges between
Bulgaria-Hungary-Romania and
Allied and Associated Powers
signatories to the Treaties of Peace
re implementation of the Treaties
a. If yes, are these countries
obliged to send
representatives to the Treat
Commissions?
b. If no appointment made, is
UN SecGen authorized to
appoint?
c. If the UN-appointed
representative binding
HELD: BHR are obliged to carry out the
provisions of those articles in the Peace
Treaties – appointment of their reps in the
Treaty Commissions
UN SecGEn NOT authorized to appoint third
member – who shall be a neutral members –
should they parties fail to appoint
- THIRD MEMBER is by mutual
agreement, failure within one
month, UN SecGen
- Authority of SecGen only comes
upon agreement of the parties
also.
- Clause must be strictly
construed and applied in the
manner provided therein
- In this case, there is just no
agreement, BHR refuse to
cooperate altogether. Hence, the
power of SecGen cannot extend
to the present case
The case at hand is breach of treaty and
cannot be remedied by creating a
Commission
CONCLUSION: SECGEN CANNOT APPOINT
RESRVATIONS TO THE 1948 CONVENTION
FACTS: Some signatories to the convention
expressed reservations
Court was asked to settle:
1. Can reserving state still be regarded
as a party to the Convention?
a. If yes, effect of reservation
HELD:
Court’s Competence
- Court has advisory jurisdiction
by virtue of Art IX –procedure
for the settlement of disputes
On status of State reserving
- State cannot be bound without
its consent
- No reservation can be binding
to a State not assenting thereto
- Ok to reserve but NOT to the
point that it defeats the purpose
and raison d’etre of the
convention – Integrity of
Convention
- In this case, more relaxed
application re Integrity of
Convention must be made.
Hence, reserving state is still a
contracting party IN RELATION
to the other states accepting
such reservations
o Flexible bec although
passed by majority,
some not amendable
- Absence of Reservation Clause =
desire not to invite a
multiplicity of reservations
Context: Convention itself must be taken into
consideration in dealing with the issue:
- The Genocide Convention
condemns and punish genocide
 as crime under international
law – universal character
- Object of the Convention
o Safeguard human rights
o Endorse principles of
morality
- Hence, the object and purpose
of the Convention: have more
States to participate and to
uphold reservations would
detract from the authority of the
convention
o Hence, Convention
limits freedom to make
reservation and
objections thereto
o Any reservation is
subject to the appraisal
of assenting State
Reservations pursuant to sovereignty
- Court disagrees. This will
disregard the object and
purpose of the Convention
CONCLUSION: No absolute answers;
appraisal of reservation is case-to-case basis
Still a party so long reservation is compatible
with the object and purpose of Convention
2. Relation of reserving states and
those who did not assent to such
- Every state is authorized to
appraise the reservation on its
standpoint
o So relationship is
between states only:
reserving-objecting
o Not in effect between
reserving and objecting
states
- But this results to divergence
3. Signatory which has not ratified; not
yet acceding State
- There is right to become parties
o Right to object to
reservations included
- Case is different to a Signatory
State re effectivity
o Signature is first step to History of the Mandate
participation
o Without ratification,
Signatory State is not a
party to the convention
o BUT PROVISIONAL
STATUS given
 But may
decrease in
value as the
Convention
enters into
force
 Can make HELD: Court held
provisionary
reservations
but for
effectivity,
ratification is
needed
LEGAL CONSEQUENCES
FACT: in 1966, the GA adopted a resolution
deciding that South Africa’s Mandate was
terminated and no authority to administer
territory of Namibia; further resolution says
its presence there is illegal
- South Africa objected saying:
o Covenant of the League
of Nations id not confer
on the Council of league
power to terminate a
mandate from
misconduct
o And even if there is
such a power, it cannot
unilaterally revoke the
mandate
o GA is not a judicial
organ, not competent
- The Mandates System of the
Covenant of the League of
Nations was based on two
principles:
o Principle of non-
annexation
o Principle of well-being
and development
- Goal: self-determination and
independence
- When the league was dissolve,
this raison d’etre remained
- Right to terminate treaty on the
basis of breach is presumed,
even if unexpressed
- Consent of the wrongdoer not
needed
- UN, successor of the League, is a
competent organ and has
supervisory power
- South Africa fails to comply with
its obligation
- But the GA lacked power to
ensure withdrawal of South
Africa. Hence, cooperation with
the Security Council is needed
(whose primary responsibility
is for the maintenance of peace)
Continued presence is illegal; accountable
for violations of its obligations
- Consequence: refrain from
lending any support to South
Africa with respect to its
occupation of Namibia
- Member states thus are under
the obligation to:
o Enter into a treaty
relation with South
Africa re its act on
behalf or concerning
Namibia; bilateral
treaties existing must
not be invoked
o Abstain from sending
diplomatic or special
missions to South
Africa including in its
jurisdiction the
territory of Namibia
o Abstain from entering
into economic and
other forms of relations
which may entrench
authority over the
territory
- To States not member of UN,
although not bound, are called
to give assistance to actions
taken by the UN
GOLDWATER VS CARTER
FACTS: The President terminated the mutual
defense treaty with Taiwan; Congress said it
was deprived of its constitutional role re
change in the supreme law of the land
Senate approval is necessary for the
termination of a treaty
HELD: Congress may leave the president a
wide discretion that do not run afould with
the nondelegation doctrine
- Power to speak or listen as
representative of the Naiton
- Make treaties with Advice and
Consent of Senate but HE
ALONE NEGOTIATES
Efficacy of Ratification
- Congress: control over the
promulgation of the adoption
Withdrawal
- Congress role is silent
- May be controlled by political
standards = nonjusticiable
- This case falls within the
category of Foreign Affairs
- Consti only spoke of ratification,
not rejection
- But Congress has power to
enact laws that will affect
foreign policy
FISHERIES JURISDICTION CASE
FACTS: in 1948, the Parliament of Iceland
(Althing) passed a law concerning the
Scientific Conservation of the Continental
Shelf Fisheries, empowering its government
to establish conservation zones where all
fisheries should be subject to Icelandic rules
The 1901 Anglo-Danish Convention fixes
Iceland’s exclusive right of fishery round its
coast – denounced by Iceland from 1951 and
issued the new Icelandic Regulation of 1958
In 1961, Iceland and UK agreed on an
Exchange of Notes that UK will no longer
object to the 12-mile fishery zone; Iceland to
continue implementation of the 1959
resolution (right to entire continental shelf
area viz Law of 1948) but will give UK 6-
month notice of such extension and in case
of dispute, will be resolved by ICJ
In 1971, Iceland announced that the
agreement on fisheries juris is terminated
and the limit of exclusive fisheries
jurisdiction of Iceland extends up to 50 miles
- UK: no international law basis
UK asks the court to declare
- Claim of Iceland to a zone of
exclusive fisheries jurdiction 50
nautical miles from he baselines
has no basis in Intl Law
- Iceland has no authority to
unilaterally assert exclusive
fisheries jurisdiction vs UK,
beyond the 12miles limit agreed
in an Exchange of Note
- Iceland no power to unilaterally
exclude UK
HELD: the 1961 Exchange of Notes have
binding force of a treaty
Applicable Rules on International Law
- UNCLOS adopted Convention on
the High Seas = freedom of
navigation to be exercised by all
States with reasonable regard to
the interest of other States
o But this did not settle
the extent of the coastal
State’s fishery juris
o Consensus: Fishery
zone bet territorial sea
and high seas now at
12-mile limit
- The concept of Preferential
Fishing Rights proposed by
Iceland – preference to coastal
 State that is dependent on
fishery
- But this Preferential Right did
not confer Iceland to
unilaterally exclude British
fishing vessels beyond the 12-
mile limit agreed in 1961
- Preferential Rights of Iceland
should be reconciled with
traditional fishing rights of UK
o Iceland’s 1972
Regulation disregarded
the rights established
in the Exchange of
Notes of 1961 and
infringement of the
1958 Convention on
the High Seas
- Iceland is not entitled to
unilaterally exclude UK fishing
vessels from areas to seaward
of the limit of 12 miles
o But UK has also
obligation to Iceland
with respect to fishing
within the 12-50mile
disputed territory
o Hence, the proper
remedy is thru
negotiations
 Peaceful
settlement of
disputes
CONCLUSION: Icelandic Regulations of 1972
(50 miles to baseline) NOT opposable to UK
- Not entitled to unilaterally
exclude UK bet the 12 and 50 mi
- Must negotiate
CASE CONCERNING GABCIKOVO
FACTS: IN 1977, Hungary and
Czechozlovakia signed a treaty “concerning
the construction and operation of the
Gabeikovo-Nagymaros System of Locks
(1977 Treaty) = joint investment
- Broad utilization of resources in
the Bratislava-Budapest section
- Production of hydroelectricity
- A Joint Contractual Plan
complemented the Treaty
On Hungary’s initiative, two protocols were
issued: postponing and accelerating the proj
There was strong criticism of the project in
Hungary. In effect, Hungary decided to
suspend the works at Nagymaros and
eventually abandoned it
Negotiations happned
In 1992, Hungary sent a Note Verbale
terminating the 1977 Treaty.
Czechoz began work in Danube, closing to
proceed with the damming of the river
In 1993, Slovakia became and independent
state; Hungary, in a Special Agreement,
agreed to establish a temporary water
management regime for the Danube
- 1977 treaty and related
instruments were covered in
the preamble of he Special
Agreement
SUSPENSION AND ABANONMENT BY
HUNGARY
- Hungary’s move to suspend
work means unwillingness to
carry out the 1977 Treaty
o Render impossible the
completion of
described as single and
indivisible.
- The only allowable act of
suspending terms of an
agreement was if its interest
was threatened by a grave and
imminent peril and the act was
the only means of safeguarding
that interest
- The claim of Hungary that the
project affects its natural
environment (essential
interest) is not sufficiently
established not imminent. Also,
negotiations were underway to
review the Project. No need to
abandon it. Not entitled to
suspend and abandon
Variant C violates 1977 Treaty
- Czechoslovakia violated an
international treaty when it
carried out the construction and
operation under Variant C
- The construction made by Czech
in its territory pursuant to
Variant C, which could have
been abandoned if an
agreement was reached;
Slovakia tried to justify the
agreement saying that an
aggrieved party must seek to
mitigate the non-performance
of the other party. Court said no.
the diversion of the Danube was
an unlawful countermeasure
LANDBANK VS ATLANTA
FACTS: Land Bank entered into an SLA with
the City Government of Iligan to finance the
development and expansion of the city's
water supply system. The SLA expressly
provided that the goods, works, and services
to be financed out of the proceeds of the loan
with Land Bank were to be "procured in
accordance with the provisions of the
'Guidelines: Procurement under IBRD Loans
and IDA Credits'. The City Government of
Iligan, through its BAC, conducted a public
bidding using the IBRD Procurement
Guidelines, and not the procedure for
competitive public bidding prescribed under
RA 9184.
IBRD Guidelines and provisions in the
procurement of goods for the Water Supply
System Development and Expansion Project
of Iligan City were observed instead of the
procedure for competitive public bidding
prescribed under RA 9184.
HELD: VALID. the terms and conditions of
Loan Agreement No. 4833-PH were
incorporated and made part of the SLA. The
SLA has attained indivisibility with the Loan
Agreement. The SLA, which is a mere
accessory agreement, should follow the
express stipulations found in the Loan
Agreement, which is in the nature of an
executive agreement.
MITSUBISHI VS CIR
FACTS: In 1987, Japan and P executed an
Exchange of Notes, agreeing to extend a loan
of 40.400B yen to PH through the Overseas
Economic Cooperation Fund (OECF, now
Japan Bank) for the Calaca II Coal-Fired
Termal Power Plant
In the Exchange of Note, PH assumed all
taxes imposed by PH on Japanese
contractors engaged in the Project (directly
imposable under the Contract)
On top of the Loan Agreement, they also did
another one amounting to 5.513B Yen.
NPC then entered into a contract with
Mitsubshi in relation to the Project.
Project was completed in 1995 and accepted
in 1998 by NPC.
In 1998, Mitsubishi filed its ITR for fiscal
year ending on March 31, 1998. It included
P44B representing its income from the
OECF-funded portion of the project. And
then filed its Monthly Remittance Return of
Income Taxes Withheld
2000, Mitsubishi filed an administrative
claim for refund of P52B for erroneous
payment it made (income tax and the BPRT)
Mitsubishi said the tax exemption is not
violative of the Consti even if it was granted
without the concurrence of the majorit of
members of Congress.
CTA granted and ordered refund. But CIR
said that refund must be from NPC
CTA en banc revered; Mitsubishi not entitled
ISSUE: is Mitsubishi entitled to a refund? – Y
HELD: the subject tax was erroneously
collected hence NIRC provides for a refund.
The tax exemption was caused by the
Exchange of Notes, which is considered as an
Executive Agreement – binding on state even
without Senate concurrence.
- Under the usual procedure, the
accepting State repeats the text of the
offering State to record its assent
- These are international instruments
binding at international law
- Binding thru executive action
DPWH VS CMC
FACTS
IN 1999, PH, with CMC et al (Joint Venture),
entered into contract for the construction of
a road in Zamboanga del Sur for P713B.
While pending, the Joint Venture’s truch and
equipment were set on fire.
2003, bombing in Zamboanga
JV made several written demands for
extension and payment of the foreign
component of the Contract.
BCEOM recommended that DPWH pays the
outstanding monies due the JV, claiming that
the work was 80% complete.
JV filed a collection complaint vs DPWH 77M
Also, it sent a Notice of Mutual termination
of the contract due to late payments. This
was accepted by DPWH.
JV claims it is entitled to price adjustment
bec there was a delay in the issuance of the
Notice to Proceed pursuant to PD 1594 (120
days after bidding date)
ISSUE: Is JV entitled to adjustment? NO
HELD: ADB Guidelines on Procurement, and
not PD 1594, should be followed. ADB
governs the project. Since this project is with
ADB (an international funding institution),
PD has no application.
This Court has held that a foreign loan
agreement with international financial
institutions, such as a multilateral lending
agency organized by governments like the
Asian Development Bank, is an executive or
international agreement contemplated by
our government procurement system.
it should be the guidelines that the parties
have agreed upon that should govern in case
of issues arising from the contract