PUBLIC INTERNATIONAL LAW
CASE DIGESTS
CASES ON CUSTOMARY LAW
KURODA VS JALANDONI
G.R. No. L-2662 83 Phil 171 March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO
DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO
BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO
ARANAS, MELVILLE S. HUSSEY and ROBERT PORT,
respondents.
Facts:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese
Imperial Army and Commanding General of the Japanese Imperial
Forces in The Philippines during Second World War. He was charged
before a military commission convened by the Chief of Staff of the
Armed forces of the Philippines with having unlawfully disregarded
and failed to discharge his duties as such command, permitting them
to commit brutal atrocities and other high crimes against noncombatant
civilians and prisoners of the Imperial Japanese Forces in violation of
the laws and customs of war”. The said military commission was
empaneled under the authority of Executive Order 68 of the President
of the Philippines.
Kuroda challenged the validity of Executive Order 68. His arguments,
were as follows:
(1) Executive Order 68 is illegal on the ground that it violates not only
the provisions of our constitutional law but also our local laws.
(2) Military Commission has no Jurisdiction to try him 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 and, therefore, he is charged with
“crime” not based on law, national or international
(3) Hussey and Port have no personality as prosecutors in this case
because they 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.
Issue/s:
Whether or not Executive Order 68 had violated the provisions of our
constitutional law
Discussions:
The provision of Article 2 Sec 3 states that “The Philippines renounces
war as an instrument of national policy, adopts 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”. Every State is, by reason of its membership
in the family of nations, bound by the generally accepted principles of
international law, which are considered to be automatically part of its
own laws.
Ruling/s:
No. Executive Order 68 has not violated the provision of our
constitutional law. The tribunal has jurisdiction to try Kuroda. This
executive order is in accordance with Article 2 Sec 3, of Constitution.
It is in accordance with generally accepted principles of international
law including the Hague Convention and Geneva Convention, and
other international jurisprudence established by the UN, including the
principle that all persons (military or civilian) guilty of plan, preparing,
waging a war of aggression and other offenses in violation of laws and
customs of war.
The Philippines may not be a signatory to the 2 conventions at that time
but the rules and regulations of both are wholly based on the generally
accepted principles of international law. They were accepted even by
the 2 belligerent nations (US and Japan)
Furthermore, the Phil. Military Commission is a special military
tribunal and rules as to parties and representation are not governed by
the rules of court but the provision of this special law.
TOMOYUKI YAMASHITA v. WILHELM D. STYER,
GR No. L-129, 1945-12-19
Facts:
Tomoyuki Yamashita, erstwhile commanding general of the 14th army
group of the Japanese Imperial Army in the Philippines, and now
charged before an American Military Commission with the most
monstrous crimes ever committed against the American and Filipino
peoples, comes to... this Court with a petition for habeas corpus and
prohibition against Lt. Gen. Wilhelm D. Styer, Commanding General
of the United States Army Forces, Western Pacific. It is alleged therein
that petitioner after his surrender became a prisoner of war of the
United States... of America but was later removed from such status and
placed in confinement as an accused war criminal charged before an
American Military Commission constituted by respondent Lieutenant
General Styer; and he now asks that he be reinstated to his former
status as prisoner of... war, and that the Military Commission be
prohibited from further trying him
We believe and so hold that the petition for habeas corpus is untenable.
It seeks no discharge of petitioner from confinement but merely his
restoration to his former status as a prisoner of war, to be interned, not
confined. The relative difference as to the degree of... confinement in
such eases is a matter of military measure, disciplinary in character,
beyond the jurisdiction of civil courts.
Neither may the petition for prohibition prosper against Lt. Gen.
Wilhelm D. Styer. The Military Commission is not made party
respondent in this case, and although it may be acting, as alleged,
without jurisdiction, no order may be issued in these proceedings
requiring it to... refrain from trying the petitioner.
The Commission has been validly constituted by Lieutenant General
Styer by order duly issued by General Douglas MacArthur,
Commander in Chief, United States Army Forces, Pacific, in
accordance with authority vested in him and with radio
communications from the Joint Chiefs of
Staff
Petitioner is charged before the Military Commission sitting at Manila
with having permitted members of his command "to commit brutal
atrocities and other high crimes against the people of the United States
and of its allies and dependencies, particularly the Philippines,"...
crimes and atrocities which in the bills of particulars, are described as
massacre and extermination of thousands and thousands of unarmed
noncombatant civilians by cruel and brutal means, including
bayoneting of children and raping of young girls, as well as devastation
and... destruction of public, private, and religious property for no other
motive than pillage and hatred. These are offenses against the laws of
war as described in paragraph 347 of the Rules of Land Warfare.
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Issues:
(1) That the Military Commission was not duly constituted, and,
therefore, it is without jurisdiction;
(2) That the Philippines cannot be considered as an occupied territory,
and the Military Commission cannot exercise jurisdiction therein;
(3) That Spain, the "protecting power" of Japan, has not been given
notice of the impending trial against petitioner, contrary to the
provisions of the Geneva Convention of July 27, 1829, and therefore,
the Military Commission has no jurisdiction to try the petitioner;
(4) That there is against the petitioner no charge of an offense against
the laws of war; and
(5) That the rules of procedure and evidence under which the Military
Commission purports to be acting denied the petitioner a fair trial.
Ruling:
True that the rule was made applicable in time of war, and there is a
conflict of opinion as to whether war has already terminated. War is
not ended simply because hostilities have ceased. After cessation of
armed hostilities, incident of war may remain pending which should...
be disposed of as in time of war. "An important incident to a conduct
of war is the adoption of measures by the military command not only
to repel and defeat the enemies but to seize and subject to disciplinary
measures those enemies who in their attempt to thwart or impede our...
military effort have violated the law of war."
Upon the other hand, we have once said... and this is applicable in time
of war as well as the time of peace that this Court has no power to
review upon habeas corpus the proceedings of a military or naval
tribunal, and that, in such... case, "the single inquiry, the test, is
jurisdiction. That being established, the habeas corpus must be denied
and the petitioner remanded. That wanting, it must be sustained, and
the petitioner discharged."
Following this rule in the instant case, we find that the Military
Commission has been validly constituted and it has jurisdiction both
over the person of the petitioner and over the offenses with which he
is charged.
Principles:
True that the rule was made applicable in time of war, and there is a
conflict of opinion as to whether war has already terminated. War is
not ended simply because hostilities have ceased. After cessation of
armed hostilities, incident of war may remain pending which should...
be disposed of as in time of war. "An important incident to a conduct
of war is the adoption of measures by the military command not only
to repel and defeat the enemies but to seize and subject to disciplinary
measures those enemies who in their attempt to thwart or impede our...
military effort have violated the law of war."
Indeed, the power to create a Military Commission for the trial and
punishment of war criminals is an aspect of waging war. And, in the
language of a writer, a Military
Commission "has jurisdiction so long as a technical state of war
continues. This includes the period of an armistice, or military
occupation, up to the effective date of a treaty of peace, and may extend
beyond, by treaty agreement."
Under paragraph 356 of the Rules of Land Warfare, a Military
Commission for the trial and punishment of war criminals must be
designated by the belligerent. And the belligerent's representative in
the present... case is none other than the Commander in Chief of the
United States Army in the Pacific. According to the Regulations
Governing the Trial of War Criminals in the Pacific,... the "trial of
persons, units, and organizations accused as war... criminals will be by
Military Commissions to be convened by or under the authority of the
Commander in Chief, United States Army Forces, Pacific."
Articles of War Nos. 12 and 15 recognize the "Military Commission"
appointed by military command as an appropriate tribunal for the...
trial and punishment of offenses against the law of war not ordinarily
tried by court martial.
This is upon the theory that since the power to create a Military
Commission is an aspect of waging war, Military Commanders have
that power unless... expressly withdrawn from them.
[ G.R. No. L-1812, August 27, 1948 ]
EREMES KOOKOORITCHKIN, PETITIONER, VS. THE
SOLICITOR GENERAL, OPPOSITOR. FULL TEXT
DECISION
PERFECTO, J.:
In August, 1941, appellee filed with the lover court a petition for
naturalization, accompanied with supporting affidavits of two citizens,
copy of a declaration of intention sworn in July, 1940, and proper
notice of the hearing. The petition was finally set for hearing on
December 18, 1941, but it was not held on that date because the
province was invaded by the Japanese forces on December 14, and the
case remained pending until the records were destroyed during the
military operations for liberation in March, 1945. The case was
declared reconstituted on May 10, 1947) and the evidence was
presented on August 28 and September 30, 1947. On the same day
resolution was issued granting the petition.
Although appellant was represented at the hearing and cross-examined
the witnesses for the petitioner, he did not file an opposition or
presented any evidence. The lower court made the findings of fact in
the following paragraphs of its resolution:
"Eremes Kookooritchkin applies for Philippine citizenship by
naturalization under the provisions of Commonwealth Act 473 as
amended by Act 535.
"The record shows that in August, 1941, he filed his petition for
naturalization supported by the affidavits of ex-Judge Jaime M. Reyes
and Dr. Salvador Mariano, both residents of Camarines Sur. In the
preceding year, in July, 1940 to be precise, he filed his declaration of
intention to become a citizen of this country. Notice of the hearing was
published as required by law.
"It was established at the hearing that the petitioner is a native-born
Russian, having first seen the light of day on November 4, 1897 in the
old City of St. Petersburg, Russia. He grew up as a citizen of the
defunct Imperial Russian Government under the Czars. World War I
found him in the military service of this Government. In 1915 he
volunteered for the Imperial Russian navy and was sent to the Navy
AviationyfSchool. He fought with the Allies in the Baltic Sea, was later
transferred to the eastern front in Poland, and much later was sent as a
navy flier to Asia Minor. In the latter part of the war, but before the
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Bussian capitulation, he was transferred to the British Air Force under
which he served for fourteen months. When the revolution broke out
in Russia in 19175 he joined the White Russian Army at Vladivostok
and fought against the Bolsheviks until 1922 when the White Russian
Army was overwhelmed by the Bolsheviks. As he refused to join the
Bolshevik regime, he fled by sea from Vladivostok to Shanghai and
from this Chinese port he found his way to Manila, arriving at this port
as a member of a group of White Russians under Admiral Stark in
March, 1923. He stayed in Manila for about seven months, then moved
to Olongapo, Zambales, where he resided for about a year, and from
this place he went to Iriga, Camarines Sur, where he established his
permanent residence since May 1925. He has remained a resident of
this municipality, except for a brief period from 1942 to July, 1945
when by reason of his underground activities he roamed the mountains
of Caranoan as a guerrilla officer. After liberation he returned to Iriga
where again he resides up to the present time.
"The applicant is married to a Filipina by the name of Concepcion
Segovia, with whom he has one son named Ronald Kookooritchkin.
He is at present studying in Saint Agnes Academy, at Legaspi, Albay,
a school duly recognized by the Government.
"The applicant is shop superintendent of A.L. Ammen Transportation
Company, with about eighty Filipino employees working under him.
He receives an annual salary of £13,200 with free quarters and house
allowance. He also owns stocks and bonds of this and other companies.
"The applicant speaks and writes English and the Bicol dialect.
Socially he intermingles with the Filipinos, attending parties, dances
and other social functions with his wife. He has a good moral character
and believes in the principles underlying the Philippine Constitution.
He has never been accused of any crime. On the other hand, he has
always conducted himself in a proper and irreproachable manner
during his entire period of residence in Camarines Sur, in his relations
with the constituted authorities as well as with the community.
"Although he could have lived in ease by maintaining good relations
with the enemy by reason of his being Russian-born during the years
preceding the declaration of war by Russia against Japan, the applicant
of his own volition choosed to cast his lot with the guerrilla movement
and fought the enemy in several encounters in the Province of
Camarines Sur. He belonged to the guerrilla outfit of Colonel Padua
with rank of major. Upon the arrival of the forces of liberation he was
attached to the American Army from April to June, 1945.
"Although a Russian by birth he is not a citizen of Soviet Russia. He
disclaims allegiance to the present Communist Government of Russia.
He is, therefore, a stateless refugee in this country, belonging to no
State, much less to the present Government of the land of his birth to
which he is uncompromisingly opposed. He is not against organized
government or affiliated with any association which upholds and
teaches doctrine opposing all organized governments. He does not
believe in the necessity of propriety of violence, personal assault or
assassination for the success or predominance of his ideas. Neither is
he a polygamist or a believer in the practice of polygamy. He is not
suffering from any mental alienation or incurable contagious disease."
Appellant assigns four errors in the appealed resolution. We will
consider them separately.
I
Appellant claims that the lower court erred in not finding that the
declaration of intention to become a Filipino citizen filed by appellee
is invalid and insufficient as a basis for the petition of naturalization.
The question calls for the application of the following provision of
Section 5 of the Revised Naturalization Laws:
"No declaration shall be valid until entry for permanent residence has
been established and a certificate showing the date, place and manner
of his arrival has been issued."
Appellant alleges that no documentary or testimonial evidence was
introduced to establish the fact that appellee had lawfully been
admitted into the Philippines for permanent residence.
In the reconstituted declaration (page 11, record on appeal) the
following can be read:
"I arrived at the Port of Manila on or about the first day of March, 1923,
as shown by the attached certificate of arrival or landing certificate of
residence."
The records of the Bureau of Justice, where the declarations of
intention to become a Filipino citizen were filed, had been lost or
destroyed during the battle for the liberation of Manila, and the
certificate alluded to has not been reconstituted.
Appellant's contention that attachment of the certificate of arrival is
essential to the validity of a declaration finds no support in the
wordings of the law, as the above-quoted section 5 of the
Commonwealth Act uses the words "has been issued."
Appellee suggests that we should not consider the question here raised
by appellant, the latter having failed to raise it in the lower court and
points out that there is testimonial evidence showing appellee's arrival
in March, 1923, and that he was lawfully admitted for permanent
residence, and the testimony of petitioner has not been refuted.
Appellee alleges that the office of the President has certified that it is
a matter of record that petitioner was one of the Russian refugees who
entered the Philippines under the command of Admiral Stark, the facts
regarding arrival of the latter fleet being a matter of common
knowledge, widely publicized in the newspapers at the time, of which
this Court may properly take judicial notice under Section 5 of Rule
123. When the fleet entered the Philippine waters, it was met by a US
destroyer and personally investigated by Governor General Wood
who, later, took the matter up with the authorities in Washington in
lengthy correspondence, and the 1,200 persons manning the fleet were
allowed to land and to remain in the Philippines or proceed to other
countries, except about 800 who were allowed to go to the United
States and given free transportation on the naval transport "Meritt."
The ships of the fleet were sold in the Philippines.
The undisputed fact that petitioner has been continuously residing in
the Philippines for about 25 years, without having been molested by
the authorities, who are presumed to have been regularly performing
their duties and would have arrested petitioner if his residence is
illegal, as rightly contended by appellee, can be taken as evidence that
he is enjoying permanent residence legally. That a certificate of arrival
has been issued is a fact that should be accepted upon the petitioner's
undisputed statement in his declaration of July, 1940, that the
certificate had actually been attached to the declaration, because it
cannot be supposed that the receiving official would have accepted the
declaration without the certificate mentioned therein as attached
thereto.
We conclude that petitioner's declaration is valid under Section ? of the
Naturalization Law, failure to reconstitute the certificate of arrival
notwithstanding. What an unreconstituted document intended to prove
may be shown by other competent evidence.
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II
The second assignment of error touches upon two questions, that the
lower court erred (1) in not finding that appellee has not established a
legal residence in the Philippines, and (2) in not finding that he cannot
speak and write any of the principal Philippine languages.
The first question has already been disposed of in the above discussion.
Perusal of the testimonies on record, leads to the conclusion that
petitioner has shown legal residence in the Philippines for a continuous
period of not less than ten years as required by Section 2 of
Commonwealth Act 473.
As to the next question, appellant alleges that in the oral test at the
hearing, it was demonstrated that petitioner has only a smattering of
Bicol, the Filipino language that petitioner alleges to know, and he
cannot speak it as he was not able to translate from English to Bicol
questions asked by the court and the provincial fiscal, although, in the
continuation of the hearing on September 30, 1947) "surprisingly
enough, he succeeded answering correctly 1 in Bicol the questions
propounded by his counsel, however, he fumbled and failed to give the
translation of such a common word as 'love' which the fiscal asked of
him."
The lower court made the finding of fact that applicant speaks and
writes English and Bicol and there seems to be no question about the
competency of the judge who made the 'pronouncement, because he
has shown by the appealed resolution ;and by his questions
propounded to appellee, that he has command of both English and
Bicol.
The law has not set a specific standard of the required ability to speak
and write any of the principal Philippine languages. A great number of
standards can be set. There (are experts in English who say that
Shakespeare has used in his works 15,000 different English words, and
the King's Bible about 10,000, while about 5,000 are used by the better
educated persons and about 3,000 by the average individual. While
there may be persons ambitious enough to have a command of the
about 600,000 words recorded in the Webster's International
Dictionary, there are authorities who would reduce basic English to a
few hundred words. Perhaps less than one hundred well selected words
will be enough for the ordinary purposes of daily life.
There is reason to believe that the lower court's pronouncement is well
taken considering the fact that, after he was liberated in 1942 from the
Japanese in the Naga prison, petitioner joined the guerrilla in the Bicol
region, took part in encounters and skirmishes against the Japanese,
and remained with the guerrilla until the Americans liberated the Bicol
provinces. If appellee with his smattering of Bicol was able to get along
with his Bicol comrades in the hazardous life of the resistance
movement, we believe that his knowledge of the language satisfies the
requirement of the law.
But appellant contends that there is no piece of positive evidence to
support petitioner's allegation that he can write too in the Bicol
language. There is, however, on record circumstantial evidence from
which it can be concluded that petitioner ought to know also how to
write Bicol. We know that Bicol, as all the important Philippine
language?,uses the same alphabet used in English, and it is much easier
to write Bicol than English, because it is phonetic. Vowels and
consonants have in them single and not interchangeable phonetic
values, while English words deviate very often from the basic sounds
of the alphabet. The ability to write cannot be denied to a person like
petitioner, who has undergone the exacting technical training to be able
to render services as flier in the Russian Naval Squadron in the Baltic
Sea and in the British Air Forces during the first World War. The
difference between the Cyrillic alphabet, as now used by Russians, and
our Roman alphabet, cannot weigh much to deny petitioner the ability
to use the latter. A person who has shown the command of English
which can be seen in his testimony on record can easily make use of
an alphabet of twenty or more letters universally used in this country
where he has been residing continuously for 25 years.
III
Appellant contends that the lower court erred in finding pppellee
stateless and not a Russian citizen and in not finding that he has failed
to establish that he is not disqualified for Philippine citizenship under
section (h) of the Revised Naturalization Law.
It is contended that petitioner failed to show that tinder the laws of
Russia, appellee has lost his Russian citizenship and failed to show that
Russia grants to Filipinos the right to become naturalized citizens or
subjects thereof. The controversy centers on the question as to whether
petitioner is a Russian citizen or is stateless.
Petitioner testified categorically that he is not a Russian citizen and that
he has no citizenship. His testimony supports the lower court's
pronouncement that petitioner is a stateless refugee in this country.
Appellant points out that petitioner stated in his petition for
naturalization that he is a citizen or subject of the Empire of Russia,
but the Empire of Russia has ceased to exist since the Czars were
overthrown in 1917 by the Bolshevists, and petitioner disclaims
allegiance or connection with the Soviet Government established after
the overthrow of the Czarist Government.
We do not believe that the lower court erred in pronouncing appellee
stateless. Appellee's testimony, besides being uncontradicted, is
supported by the well-known fact that the ruthlessness of modern
dictatorships has scattered throughought the world a large number of
stateless refugees or displaced persons, without country and without
flag. The tyrannical intolerance of said dictatorships toward all
opposition induced them to resort to beastly oppression, concentration
camps and blood purges, and it is only natural that the not-so-fortunate
ones who were able to escape to foreign countries should feel the loss
of all bonds of attachment to the hells which were formerly their
fatherland's. Petitioner belongs to that group of stateless refugees.
Knowing, as all cultured persons all over the world ought to know, the
history, nature and character of the Soviet dictatorship, presently the
greatest menace to humanity and civilization, it would be technically
fastidious to require further evidence of petitioner's claim that he is
stateless than his testimony that he owes no allegiance to the Russian
Communist government and, because he has been at war with it, he
fled from Russia to permanently reside in the Philippines. After finding
in this country economic security in a remunerative job, establishing a
family by marrying a Filipina with whom he has a son, and enjoying
for 25 years the freedoms and blessings of our democratic way of life,
and after showing his resolution to retain the happiness he found in our
political system to the extent of refusing to claim Russian citizenship
even to secure his release from the Japanese and of casting his lot with
that of our people by joining the fortunes and misfortunes of our
guerrillas, it would be beyond comprehension to support that the
petitioner could feel any bond of attachment to the Soviet dictatorship.
IV
The fourth and last assignment of error need not be discussed, it being
only a sequel of the other assignments and has necessarily been
disposed of in their discussion. The appealed resolution is affirmed.
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Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua v. United States) Nicaragua vs. United States ICJ
Reports June 27, 1986
Brief Fact Summary. Nicaragua (P) brought a suit against the United
States (D) on the ground that the United States (D) was responsible for
illegal military and paramilitary activities in and against Nicaragua.
The jurisdiction of the International Court of Justice to entertain the
case as well as the admissibility of Nicaragua’s (P) application to the
I.C.J. was challenged by the United States (D).
Synopsis of Rule of Law. Nicaragua (P) brought a suit against the
United States (D) on the ground that the United States (D) was
responsible for illegal military and paramilitary activities in and
against Nicaragua. The jurisdiction of the International Court of Justice
to entertain the case as well as the admissibility of Nicaragua’s (P)
application to the I.C.J. was challenged by the United States (D).
Facts. The United States (D) challenged the jurisdiction of the I.C.J
when it was held responsible for illegal military and paramilitary
activities in and against Nicaragua (P) in the suit the plaintiff brought
against the defendant in 1984. Though a declaration accepting the
mandatory jurisdiction of the Court was deposited by the United States
(D) in a 1946, it tried to justify the declaration in a 1984 notification
by referring to the 1946 declaration and stating in part that the
declaration “shall not apply to disputes with any Central American
State”�.”�
Apart from maintaining the ground that the I.C.J lacked jurisdiction,
the States (D) also argued that Nicaragua (P) failed to deposit a similar
declaration to the Court. On the other hand, Nicaragua (P) based its
argument on its reliance on the 1946 declaration made by the United
states (D) due to the fact that it was a “state accepting the same
obligation”� as the United States (D) when it filed charges in the I.C.J.
against the United States (D).
Also, the plaintiff intent to submit to the compulsory jurisdiction of the
I.C.J. was pointed out by the valid declaration it made in 1929 with the
I.C.J’s predecessor, which was the Permanent Court of International
Justice, even though Nicaragua had failed to deposit it with that court.
The admissibility of Nicaragua’s (P) application to the I.C.J. was also
challenged by the United States (D).
Issue. (1) Is the jurisdiction to entertain a dispute between two states,
if they both accept the Court’s jurisdiction, within the jurisdiction of
the International Court of Justice?
(2) Where no grounds exist to exclude the application of a state, is the
application of such a state to the International Court of Justice
admissible?
Held. (1) Yes. The jurisdiction of the Court to entertain a dispute
between two states if each of the States accepted the Court’s
jurisdiction is within the jurisdiction of the International Court of
Justice. Even though Nicaragua (P) declaration of 1929 was not
deposited with the Permanent Court, because of the potential effect it
had that it would last for many years, it was valid.
Thus, it maintained its effect when Nicaragua became a party to the
Statute of the I.C.J because the declaration was made unconditionally
and was valid for an unlimited period. The intention of the current
drafters of the current Statute was to maintain the greatest possible
continuity between it and the Permanent Court. Thus, when Nicaragua
(P) accepted the Statute, this would have been deemed that the plaintiff
had given its consent to the transfer of its declaration to the I.C.J.
(2) Yes. When no grounds exist to exclude the application of a state,
the application of such a state to the International Court of Justice is
admissible. The five grounds upon which the United States (D)
challenged the admissibility of Nicaragua’s (P) application were that
the plaintiff failed because there is no “indispensable parties”� rule
when it could not bring forth necessary parties, Nicaragua’s (P) request
of the Court to consider the possibility of a threat to peace which is the
exclusive province of the Security Council, failed due to the fact that
I.C.J. can exercise jurisdiction which is concurrent with that of the
Security Council, that the I.C.J. is unable to deal with situations
involving ongoing armed conflict and that there is nothing compelling
the I.C.J. to decline to consider one aspect of a dispute just because the
dispute has other aspects due to the fact that the case is incompatible
with the Contadora process to which Nicaragua (P) is a party.
Discussion. Although the questions of jurisdiction and admissibility
are primarily based on the principle that the I.C.J. has only as much
power as that agreed to by the parties, these can be quite complicated.
The 1946 declaration of the United States and the 1929 declaration of
Nicaragua was the main focus of the case on declaration and each of
these declarations pointed out the respective parties’ intent as it
related to the I.C.J’s jurisdiction.
Armed Activities on the territory of the Congo (Democratic
Republic of the Congo v. Rwanda) 2006
Brief Fact Summary. Rwanda (D) challenged the jurisdiction of the
International Court of Justice when a suit was filed against her by the
Democratic Republic of the Congo (P).
Synopsis of Rule of Law. The International Court of Justice lacks
jurisdiction based on a treaty in which one party to such a treaty
excludes dispute settlement obligations under the treaty before
becoming a party, and fails to take formal acts to bring about
withdrawal of the reservation.
Facts. In the suit filed by the Republic of the Congo (DRC) (P) against
Rwanda (D), the DRC (P) tried to base the jurisdiction of the
International Court of Justice on nine treaties with dispute settlement
clauses that provided for such jurisdiction. Of the nine treaties,
Rwanda (D) excluded dispute settlement obligations in seven of the
treaties while it was not party to the remaining two. Based on the nature
of its obligations, Rwanda (D) challenged the jurisdiction of the
International Court of Justice.
Discussions of some of the treaties were omitted by the excerpt. The
treaties involved were Convention on Privileges, Immunities of the
Specialized Agencies, Genocide Convention, Article IX, Convention
on Racial Discrimination against Women, Article 29, World Health
Organization Constitution, Article 75. Unesco Convention, Article
XIV, Montreal Convention, Article 14, Vienna Convention, Article 66
and Convention Against Torture. Rwanda (D) was not party to the first
two treaties.
Issue. Does the International Court of Justice lacks jurisdiction based
on a treaty in which one party to such a treaty excludes disputes
settlement obligations under the treaty before becoming a party and
fails to make formal acts to bring about withdrawal of the reservation.
Held.
(Judge not stated in casebook excerpt) Yes. The International Court of
Justice lacks jurisdiction based on a treaty in which one party to such
a treaty excludes dispute settlement obligations under the treaty before
becoming a party and fails to take formal acts to bring about
withdrawal of the reservation.
Firstly as at the time of a 1993 peace agreement to withdrawing all
reservations to human rights treaties, Rwanda (D) may have committed
itself, though this withdrawal was effectuated by the Rwanda (D)
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minister of justice, Rwanda (D) never for once take formal acts to bring
about withdrawal of reservation. Deciding on whether to withdraw
reservation with a state’s domestic legal order is not the same as
implementation of that decision by the national authorities within the
international legal order, which can only come to pass by notification
to the other state parties to the parties in question through the
Secretary-General of the United Nations.
Secondly, the existence of a dispute that implicates peremptory norms
of general international law does not imply that it is not part of the
principles that jurisdiction always relies on the consent of the parties.
The treaty was however held not to form the basis of jurisdiction
because the DRC (P) failed to prove beyond reasonable doubt that it
initiated arbitration proceedings against Rwanda (D) under the
Convention on Discrimination against Women.
Discussion. The analysis of the treaties in the casebook excerpt is
similar to the Court’s analysis of treaties. The main principle here is
that the I.C.J will not advance the case past the preliminary matter of
jurisdiction where a state has not granted consent to the I.C.J’s
jurisdiction, whatever atrocities have in fact been committed by the
non-consenting state. Also, reversal of the position requires an overt
act by the state in a situation like this, where there is evidence of non-
consent, in order to convince the Court that after all, consent to the
I.C.J’s jurisdiction was granted.
North Sea Continental Shelf Cases (Federal Republic of Germany
v. Denmark; Federal Republic of Germany v. Netherlands) ICJ
REPORTS Feb. 20, 1969
Brief Fact Summary. The view that customary rules of international
law determined the boundaries of areas located on the continental shelf
between their countries and the Federal Republic of Germany (D) was
contended by Denmark (P) and the Netherlands (P).
Synopsis of Rule of Law. For a custom to become binding as
international law, it must amount to a settled practice and must be
rendered obligatory by a rule requiring it.
Facts. That the boundaries between their respective areas of the
continental shelf in the North Sea and the area claimed by the Federal
Republic of Germany (D), should be determined by the application of
the principle of equidistance as set forth in Article 6 of the Geneva
Convention of 1958 on the Continental Shelf, which by January 1,
1969 had been ratified or acceded to by 39 states but to which Germany
was not a party, was the basis of Denmark’s (D) and the Netherland’s
(P) contention.
Because the use of the delimitation method was not merely a
conventional obligation, but a rule that was part of the corpus of
general international law and like other rules of general or customary
international law, which was binding automatically on Germany (D),
independent of any specific assent, direct or indirect, given by
Germany (D), Denmark (P) and the Netherland’s (P) contended that
Germany (D) was bound to accept the delimitation on an equidistance
basis.
Issue. Must delimitation be the object of an equitable agreement
between the states involved?
Held. Yes. Delimitation must be the object of an equitable agreement
between the states involved. As stipulated in Article 6 of the Geneva
Convention, equidistance principle is not part of customary
international law. Article 6 makes the obligation to use the
equidistance method a secondary one which comes into play only
when agreements between the parties are absent. Although the
principle of equidistance is not given a fundamental norm-creating
character by Article 6, which is necessary to the formation of a general
rule of law.
In this case, after taking into consideration all relevant circumstances,
the delimitation here is to be excused by equitable agreement.
Dissent. (Lachs, J.) not only the states who are parties to the
Convention on the Continental Shelf have accepted the principles and
rules enshrined in the Convention including the equidistance rule, but
by other states who that have subsequently followed it in agreements,
or in their legislation, or have acquiesced in it when faced with
legislative acts of other affecting them. This can be seen as evidence
of a practice widespread enough to satisfy the criteria for a general rule
of law.
Discussion. The concept of opinion juris analyzed by the dissent is in
consonance with the position taken by some legal scholars who
maintain that opinio juris may be presumed from uniformities of
practice regarding matters viewed normally as involving legal rights
and obligations. A contrary position maintains that the practice of
states must be accompanied by or consist of statements that something
is law before it can become law
South-West Africa Cases --- SEE PDF FILE
Asylum Case (Colombia v. Peru) --- SEE PDF FILE
Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal) 2012 PROHIBITION OF TORTURE
On 19 February 2009, Belgium filed an Application instituting
proceedings against Senegal relating to Mr. Hissène Habré, the former
President of Chad and resident in Senegal since being granted political
asylum by the Senegalese Government in 1990. Belgium submitted
that, by failing to prosecute Mr. Habré for certain acts he was alleged
to have committed during his presidency, including acts of torture and
crimes against humanity, or to extradite him to Belgium, Senegal had
violated the so-called obligation aut dedere aut judicare (that is to say,
“to prosecute or extradite”) provided for in Article 7 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment and in customary international law.
On the same day, Belgium filed a request for the indication of
provisional measures, asking the Court to order “Senegal to take all the
steps within its power to keep Mr. H. Habré under the control and
surveillance of the judicial authorities of Senegal so that the rules of
international law with which Belgium requests compliance may be
correctly applied”. Belgium justified this request by reference to
certain statements made by Mr. Abdoulaye Wade, President of the
Republic of Senegal, which, according to Belgium, indicated that, if
Senegal could not secure the necessary funding to try Mr. Habré, it
would “cease monitoring him or transfer him to another State”.
In its Order of 28 May 2009, referring to the assurances given by
Senegal during the oral proceedings that it would not allow Mr. Habré
to leave its territory while the case was pending, the Court concluded
that there was no risk of irreparable prejudice to the rights claimed by
Belgium and that there did not exist any urgency to justify the
indication of provisional measures.
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In its Judgment dated 20 July 2012, the Court began by examining the
questions raised by Senegal relating to its jurisdiction and to the
admissibility of Belgium’s claims. Having pointed out that the
existence of a dispute is a condition of its jurisdiction under both bases
of jurisdiction invoked by Belgium — Article 30, paragraph 1, of the
Convention against Torture and the declarations made by both States
under Article 36, paragraph 2, of the Statute — the Court considered
that, since any dispute that may have existed between the Parties with
regard to the interpretation or application of Article 5, paragraph 2, of
the Convention against Torture had ended by the time the Application
was filed, it lacked jurisdiction to decide on Belgium’s claim relating
to that provision. Article 5, paragraph 2, of the said Convention obliges
the States parties thereto to establish the universal jurisdiction of their
courts over the crime of torture. The Court found, however, that it did
have jurisdiction to entertain Belgium’s claims based on the
interpretation and application of Article 6, paragraph 2, and Article 7,
paragraph 1, of the Convention. It further considered, on the basis of
the international arrest warrant issued against Mr. Habré by Belgium,
the extradition request transmitted to Senegal and the diplomatic
exchanges between the two Parties, that, at the time of the filing of the
Application instituting proceedings, there was no dispute between the
Parties regarding Senegal’s obligation to prosecute or extradite Mr.
Habré for crimes he was alleged to have committed under customary
international law. The Court observed that, consequently, while the
facts which constituted those alleged crimes may have been closely
connected to the alleged acts of torture, it did not have jurisdiction to
entertain the issue whether there existed an obligation for a State to
prosecute crimes under customary international law allegedly
committed by a foreign national abroad.
The Court then turned to the conditions which have to be met in order
for it to have jurisdiction under Article 30, paragraph 1, of the
Convention against Torture, namely that the dispute cannot be settled
through negotiation and that, after a request for arbitration has been
made by one of the parties, they have been unable to agree on the
organization of the arbitration within six months from that request.
Having found that these conditions had been met, the Court concluded
that it had jurisdiction to entertain the dispute between the Parties
concerning the interpretation and application of Article 6, paragraph 2,
and Article 7, paragraph 1, of the Convention. It ruled, however, that
it was not necessary for it to establish whether its jurisdiction also
existed with regard to the same dispute on the basis of the declarations
made by the Parties under Article 36, paragraph 2, of its Statute.
With respect to the admissibility of Belgium’s claims, the Court ruled
that once any State party to the Convention against Torture was able
invoke the responsibility of another State party with a view to
ascertaining the alleged failure to comply with its obligations erga
omnes partes, i.e., obligations owed toward all States parties, Belgium,
as a party to the said Convention, had standing to invoke the
responsibility of Senegal for the alleged breaches of its obligations
under Article 6, paragraph 2, and Article 7, paragraph 1, of that
Convention. The Court thus found that Belgium’s claims based on
those provisions were admissible.
As regards the alleged violation of Article 6, paragraph 2, of the
Convention against Torture, which provides that a State party in whose
territory a person alleged to have committed acts of torture is present
must “immediately make a preliminary inquiry into the facts”, the
Court noted that Senegal had not included in the case file any material
demonstrating that it had carried out such an inquiry. The Court further
observed that, while the choice of means for conducting the inquiry
remained in the hands of the States parties, taking account of the case
in question, Article 6, paragraph 2, of the Convention requires that
steps must be taken as soon as the suspect is identified in the territory
of the State, in order to conduct an investigation of that case. In the
present case, the establishment of the facts had become imperative at
least since the year 2000, when a complaint was filed in Senegal
against Mr. Habré. Nor had an investigation been initiated in 2008,
when a further complaint against Mr. Habré was filed in Dakar, after
the legislative and constitutional amendments made in 2007 and 2008,
respectively. The Court concluded from the foregoing that Senegal had
breached its obligation under the above-mentioned provision
With respect to the alleged violation of Article 7, paragraph 1, of the
Convention against Torture, the Court first examined the nature and
meaning of the obligation laid down in that provision. It observed that
the obligation to submit the case to the competent authorities for the
purpose of prosecution (the “obligation to prosecute”) deriving from
that provision was formulated in such a way as to leave it to the said
authorities to decide whether or not to initiate proceedings, thus
respecting the independence of States parties’ judicial systems : those
authorities thus remain responsible for deciding on whether to initiate
a prosecution, in the light of the evidence before them and of the
relevant rules of criminal procedure. The Court further observed that
the obligation to prosecute requires the State concerned to submit the
case to its competent authorities for the purpose of prosecution,
irrespective of the existence of a prior request for the extradition of the
suspect. It noted, however, that, if the State in whose territory the
suspect is present has received a request for extradition in any of the
cases envisaged in the provisions of the Convention, it may relieve
itself of its obligation to prosecute by acceding to that request. It thus
concluded that extradition was an option offered to the State by the
Convention, whereas prosecution was an international obligation
under the Convention, the violation of which was a wrongful act
engaging the responsibility of the State.
The Court then turned to the temporal scope of the obligation laid down
in Article 7, paragraph 1, of the Convention. It noted in this respect
that, while the prohibition of torture was part of customary
international law and had become a peremptory norm (jus cogens), the
obligation to prosecute the alleged perpetrators of acts of torture under
the Convention applied only to facts having occurred after its entry into
force for the State concerned. The Court concluded from the foregoing
that Senegal’s obligation to prosecute pursuant to Article 7, paragraph
1, of the Convention did not apply to acts alleged to have been
committed before the Convention entered into force for Senegal on 26
June 1987, although there was nothing in that instrument to prevent it
from instituting proceedings concerning acts that were committed
before that date. The Court found that Belgium, for its part, was
entitled, with effect from 25 July 1999, the date when it became party
to the Convention, to request the Court to rule on Senegal’s compliance
with its obligation under Article 7, paragraph 1, of the Convention.
Finally, the Court examined the question of the implementation of the
obligation to prosecute. It concluded that the obligation laid down in
Article 7, paragraph 1, required Senegal to take all measures necessary
for its implementation as soon as possible, in particular once the first
complaint had been filed against Mr. Habré in 2000. Having failed to
do so, Senegal had breached and remained in breach of its obligations
under Article 7, paragraph 1, of the Convention.
The Court found that, by failing to comply with its obligations under
Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention,
Senegal had engaged its international responsibility. Therefore, it was
required to cease that continuing wrongful act and to take, without
further delay, the necessary measures to submit the case to its
competent authorities for the purpose of prosecution, if it did not
extradite Mr. Habré.
Kadi v. Council and Commission (2008)
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Brief Fact Summary. The funds of Yassin Abdullah Kadi (D) and Al
Barakaat International Foundation (D) was frozen by a regulation of
the Council of the European Union (P) following a resolution by the
U.N. Security Council. The EU Court of First Instance ruled that it did
not have jurisdiction to review measures adopted by the European
Community (EC) giving effect to resolutions of the Security Council
adopted against the Al Qaeda and Taliban terrorist networks. The
defenders appealed.
Synopsis of Rule of Law. It is within the jurisdiction of the courts of
member states of the European Union (P) to review measures adopted
by the European Community that give effect to resolutions of the U.N.
Security Council.
Facts. The U.N. Security Council imposed sanctions under Chapter
VII of the U.N. Charter against individuals and entities allegedly
associated with Osama bin Laden, the Al Qaeda network and the
Taliban in its effort to fight terrorism. A list of alleged offenders was
compiled by the U.N. Sanctions Committee and sanctions included
freezing such persons and entities assets.
To give effect to the Security Council resolutions, the Council of the
European Union (P) adopted a regulation ordering the freezing of the
assets of those on the list, which included Yassin Abdullah Kadi (D),
a resident of Saudi Arabia, and Al Barakaat International Foundation
(D). The defendants began proceeding in the Court of First Instance
(CFI) and requested annulment of the Council regulations on the
ground that the regulation infringed several of their fundamental rights
which included the right to respect for property, the right to be heard
before a court of law and the right to effective judicial review.
All claims of the defendants was rejected by the CFI, but confirmed
the validity of the regulation, ruling specifically that it had no
jurisdiction to review the validity of the contested regulation and
indirectly, the validity of the relevant Security Council resolution,
except in respect of jus cogens norms. Kadi (D) and Al Barakaat (D)
appealed this judgment.
Issue. Is it within the jurisdiction of the courts of member states of the
European Union (P) to review measures adopted by the European
Community that gives effect to resolutions of the U.N. Security
Council?
Held. Yes. It is within the jurisdiction of the courts of member states
of the European Union (P) to review measures adopted by the
European Community that give effect to resolutions of the U.N.
Security Council. The EC courts have the power to review the legality
of all Community acts, including the contested regulations that aim to
give effect to resolutions adopted by the Security Council under the
U.N. Charter. A judgment by an EU court that an EC measure is not in
consonance with a higher rule of law in the EC legal order would not
implicate a challenge to the legitimacy of that resolution in
international law.
Discussion. This case marks the first time that the ECJ confirmed its
jurisdiction to review the lawfulness of a measure giving effect to
Security Council resolutions. It also constitute the first time the ECJ
quashed an EC measure giving effect to a UNSC resolution for being
unlawful.
AL-AD SANI vs. UK (2002)
THE CIRCUMSTANCES OF THE CASE
1. A. The alleged ill-treatment
2. The applicant made the following allegations concerning the
events underlying the dispute he submitted to the English
courts. The Government stated that they were not in a
position to comment on the accuracy of these claims.
3. The applicant, who is a trained pilot, went to Kuwait in 1991
to assist in its defence against Iraq. During the Gulf War he
served as a member of the Kuwaiti Air Force and, after the
Iraqi invasion, he remained behind as a member of the
resistance movement. During that period he came into
possession of sex videotapes involving Sheikh Jaber Al-
Sabah Al-Saud Al-Sabah (“the Sheikh”), who is related to
the Emir of Kuwait and is said to have an influential position
in Kuwait. By some means these tapes entered general
circulation, for which the applicant was held responsible by
the Sheikh.
4. After the Iraqi armed forces were expelled from Kuwait, on
or about 2 May 1991, the Sheikh and two others gained entry
to the applicant’s house, beat him and took him at gunpoint
in a government jeep to the Kuwaiti State Security Prison.
The applicant was falsely imprisoned there for several days
during which he was repeatedly beaten by security guards.
He was released on 5 May 1991, having been forced to sign
a false confession.
5. On or about 7 May 1991 the Sheikh took the applicant at
gunpoint in a government car to the palace of the Emir of
Kuwait’s brother. At first the applicant’s head was
repeatedly held underwater in a swimming-pool containing
corpses, and he was then dragged into a small room where
the Sheikh set fire to mattresses soaked in petrol, as a result
of which the applicant was seriously burnt.
6. Initially the applicant was treated in a Kuwaiti hospital, and
on 17 May 1991 he returned to England where he spent six
weeks in hospital being treated for burns covering 25% of
his total body surface area. He also suffered psychological
damage and has been diagnosed as suffering from a severe
form of post-traumatic stress disorder, aggravated by the fact
that, once in England, he received threats warning him not to
take action or give publicity to his plight.
B. The civil proceedings
On 29 August 1992 the applicant instituted civil proceedings
in England for compensation against the Sheikh and the State
of Kuwait in respect of injury to his physical and mental
health caused by torture in Kuwait in May 1991 and threats
against his life and well-being made after his return to the
United Kingdom on 17 May 1991. On 15 December 1992 he
obtained a default judgment against the Sheikh.
The proceedings were re-issued after an amendment to
include two named individuals as defendants. On 8 July
1993 a deputy High Court judge ex parte gave the applicant
leave to serve the proceedings on the individual defendants.
This decision was confirmed in chambers on 2 August 1993.
He was not, however, granted leave to serve the writ on the
State of Kuwait.
The applicant submitted a renewed application to the Court
of Appeal, which was
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heard ex parte on 21 January 1994. Judgment was delivered the same
day. The court held, on the basis of the applicant’s allegations, that
there were three elements pointing towards State responsibility for the
events in Kuwait: firstly, the applicant had been taken to a State prison;
secondly, government transport had been used on 2 and 7 May 1991;
and, thirdly, in the prison he had been mistreated by public officials. It
found that the applicant had established a good arguable case, based
on principles of international law, that Kuwait should not be afforded
immunity under section 1(1) of the State Immunity Act 1978 (“the
1978 Act”: see paragraph 21 below) in respect of acts of torture. In
addition, there was medical evidence indicating that the applicant had
suffered damage (post- traumatic stress) while in the United Kingdom.
It followed that the conditions in Order 11 rule 1(f) of the Rules of the
Supreme Court had been satisfied (see paragraph 20 below) and that
leave should be granted to serve the writ on the State of Kuwait.
1. The Kuwaiti government, after receiving the writ, sought an
order striking out the proceedings. The application was
examined inter partes by the High Court on 15 March
2. In a judgment delivered the same day the court held that it
was for the applicant to show on the balance of probabilities
that the State of Kuwait was not entitled to immunity under
the 1978 Act. It was prepared provisionally to accept that the
Government were vicariously responsible for conduct that
would qualify as torture under international law. However,
international law could be used only to assist in interpreting
lacunae or ambiguities in a statute, and when the terms of a
statute were clear, the statute had to prevail over
international law. The clear language of the 1978 Act
bestowed immunity upon sovereign States for acts
committed outside the jurisdiction and, by making express
provision for exceptions, it excluded as a matter of
construction implied exceptions. As a result, there was no
room for an implied exception for acts of torture in section
1(1) of the 1978 Act. Moreover, the court was not satisfied
on the balance of probabilities that the State of Kuwait was
responsible for the threats made to the applicant after 17 May
1991. As a result, the exception provided for by section 5 of
the 1978 Act could not apply. It followed that the action
against the State should be struck out.
3. The applicant appealed and the Court of Appeal examined
the case on 12 March
4. The court held that the applicant had not established on the
balance of probabilities that the State of Kuwait was
responsible for the threats made in the United Kingdom. The
important question was, therefore, whether State immunity
applied in respect of the alleged events in Kuwait. Lord
Justice Stuart-Smith finding against the applicant, observed:
“Jurisdiction of the English court in respect of foreign States is
governed by the State Immunity Act 1978. Section 1(1) provides:
‘A State is immune from the jurisdiction of the courts of the United
Kingdom except as
provided in the following provisions of this Part of this Act. …’
… The only relevant exception is section 5, which provides:
‘A State is not immune as respects proceedings in respect of
(a) death or personal injury … caused by an act or omission in the
United Kingdom.’
It is plain that the events in Kuwait do not fall within the exception in
section 5, and the express words of section 1 provide immunity to the
First Defendant. Despite this, in what [counsel] for the Plaintiff
acknowledges is a bold submission, he contends that that section must
be read subject to the implication that the State is only granted
immunity if it is acting within the Law of Nations. So that the section
reads: ‘A State acting within the Law of Nations is immune from
jurisdiction except as provided …’ … The argument is … that
international law against torture is so fundamental that it is a jus
cogens, or compelling law, which overrides all other principles of
international law, including the well-established principles of
sovereign immunity. No authority is cited for this proposition. … At
common law, a sovereign State could not be sued at all against its will
in the courts of this country. The 1978 Act, by the exceptions therein
set out, marks substantial inroads into this principle. It is
inconceivable, it seems to me, that the draughtsman, who must have
been well aware of the various international agreements about torture,
intended section 1 to be subject to an overriding qualification.
Moreover, authority in the United States at the highest level is
completely contrary to [counsel for the applicant’s] submission. [Lord
Justice Stuart-Smith referred to the judgments of the United States
courts, Argentine Republic v. Amerada Hess Shipping Corporation
and Siderman de Blake v. Republic of Argentina, cited in paragraph 23
below, in both of which the court rejected the argument that there was
an implied exception to the rule of State immunity where the State
acted contrary to the Law of Nations.] … [Counsel] submits that we
should not follow the highly persuasive judgments of the American
courts. I cannot agree.
… A moment’s reflection is enough to show that the practical
consequences of the Plaintiff’s submission would be dire. The courts
in the United Kingdom are open to all who seek their help, whether
they are British citizens or not. A vast number of people come to this
country each year seeking refuge and asylum, and many of these allege
that they have been tortured in the country whence they came. Some
of these claims are no doubt justified, others are more doubtful. Those
who are presently charged with the responsibility for deciding whether
applicants are genuine refugees have a difficult enough task, but at
least they know much of the background and surrounding
circumstances against which the claim is made. The court would be in
no such position. The foreign States would be unlikely to submit to the
jurisdiction of the United Kingdom court, and in its absence the court
would have no means of testing the claim or making a just
determination. …”
The other two members of the Court of Appeal, Lord Justice Ward and
Mr Justice Buckley, also rejected the applicant’s claim. Lord Justice
Ward commented that “there may be no international forum (other than
the forum of the locus delicti to whom a victim of torture will be
understandably reluctant to turn) where this terrible, if established,
wrong can receive civil redress”.
1. On 27 November 1996 the applicant was refused leave to
appeal by the House of Lords. His attempts to obtain
compensation from the Kuwaiti authorities via diplomatic
channels have proved unsuccessful.
II. RELEVANT LEGAL MATERIALS
A. Jurisdiction of English courts in civil matters
1. There is no rule under English law requiring a plaintiff to be
resident in the United Kingdom or to be a British national
before the English courts can assert jurisdiction over civil
wrongs committed abroad. Under the rules in force at the
time the applicant issued proceedings, the writ could be
served outside the territorial jurisdiction with the leave of the
court when the claim fell within one or more of the
categories set out in order 11, Rule 1 of the Rules of the
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Supreme Court. For present purposes only Rule 1 (f) is
relevant:
“… service of a writ out of the jurisdiction is permissible with the leave
of the court if, in the action begun by the writ,
(f) the claim is founded on a tort and the damage was sustained, or
resulted from an act committed, within the jurisdiction … “
B. The State Immunity Act 1978
1. The relevant parts of the State Immunity Act 1978 provide:
“1. (1) A State is immune from the jurisdiction of the courts of the
United Kingdom except as provided in the following provisions of this
Part of this Act.
5. A State is not immune as regards proceedings in respect of- (a) death
or personal injury;
caused by an act or omission in the United Kingdom …”
C. The Basle Convention
1. The above provision (section 5 of the 1978 Act) was enacted
to implement the 1972 European Convention on State
Immunity (“the Basle Convention”), a Council of Europe
instrument, which entered into force on 11 June 1976 after
its ratification by three States. It has now been ratified by
eight States (Austria, Belgium, Cyprus, Germany,
Luxembourg, the Netherlands, Switzerland and the United
Kingdom) and signed by one other State (Portugal). Article
11 of the Convention provides:
“A Contracting State cannot claim immunity from the jurisdiction of a
court of another Contracting State in proceedings which relate to
redress for injury to the person or damage to tangible property, if the
facts which occasioned the injury or damage occurred in the territory
of the State of forum, and if the author of the injury or damage was
present in that territory at the time when those facts occurred.” Article
15 of the Basle Convention provides that a Contracting State shall be
entitled to immunity if the proceedings do not fall within the stated
exceptions.
D. State immunity in respect of civil proceedings for torture
1. In its Report on Jurisdictional Immunities of States and their
Property (1999), the working group of the International Law
Commission (ILC) found that over the preceding decade a
number of civil claims had been brought in municipal courts,
particularly in the United States and United Kingdom,
against foreign governments, arising out of acts of torture
committed not in the territory of the forum State but in the
territory of the defendant and other States. The working
group of the ILC found that national courts had in some cases
shown sympathy for the argument that States are not entitled
to plead immunity where there has been a violation of human
rights norms with the character of jus cogens, although in
most cases the plea of sovereign immunity had succeeded.
2. The working group of the ILC did, however, note two recent
developments which it considered gave support to the
argument that a State could not plead immunity in respect of
gross human rights violations. One of these was the House
of Lords’ judgment in ex parte Pinochet (No. 3) (see
paragraph 34 below). The other was the amendment by the
United States of its Foreign Sovereign Immunities Act
(FSIA) to include a new exception to immunity. This
exception, introduced by section 221 of the Anti-Terrorism
and Effective Death Penalty Act of 1996, applies in respect
of a claim for damages for personal injury or death caused
by an act of torture, extra-judicial killing, aircraft sabotage
or hostage-taking, against a State designated by the Secretary
of State as a sponsor of terrorism, where the claimant or
victim was a national of the United States at the time the act
occurred.
E. The prohibition of torture in Kuwait and under international
law
3. The Kuwaiti Constitution provides in Article 31 that “No
person shall be put to torture”.
4. Article 5 of the Universal Declaration of Human Rights 1948
states:
“No one shall be subjected to torture or cruel, inhuman or degrading
treatment or punishment.”
1. Article 7 of the International Covenant on Civil and Political
Rights 1966 states as relevant:
“No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.”
1. The United Nations 1975 Declaration on the Protection of
All Persons from Being
Subjected to Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment provides in Article 3 that: “No State may
permit or tolerate torture and other cruel inhuman or degrading
treatment or punishment.”
1. In the United Nations Convention against Torture and Other
Cruel, Inhuman and Degrading Treatment or Punishment,
adopted on 10 December 1984 (“the UN Convention”),
torture is defined. . . The UN Convention requires by Article
2 that each State Party is to take effective legislative,
administrative, judicial or other measures to prevent torture
in any territory under its jurisdiction, and by Article 4 that
all acts of torture be made offences under each State’s
criminal law.
2. In its judgment in Prosecutor v. Furundzija (10 December
1998, case no. IT-95-17/I- T, (1999) 38 International Legal
Materials 317), the International Criminal Tribunal for the
Former Yugoslavia observed as follows:
“144. It should be noted that the prohibition of torture laid down in
human rights treaties enshrines an absolute right, which can never be
derogated from, not even in time of emergency … This is linked to the
fact, discussed below, that the prohibition on torture is a peremptory
norm or jus cogens. … This prohibition is so extensive that States are
even barred by international law from expelling, returning or
extraditing a person to another State where there are substantial
grounds for believing that the person would be in danger of being
subjected to torture.
1. These treaty provisions impose upon States the obligation to
prohibit and punish torture, as well as to refrain from
engaging in torture through their officials. In international
human rights law, which deals with State responsibility
rather than individual criminal responsibility, torture is
prohibited as a criminal offence to be punished under
national law; in addition, all States parties to the relevant
treaties have been granted, and are obliged to exercise,
jurisdiction to investigate, prosecute and punish offenders.
…
2. The existence of this corpus of general and treaty rules
proscribing torture shows that the international community,
aware of the importance of outlawing this heinous
phenomenon, has decided to suppress any manifestation of
torture by operating both at the interstate level and at the
level of individuals. No legal loopholes have been left.
154. Clearly the jus cogens nature of the prohibition against torture
articulates the notion that the prohibition has now become one of the
most fundamental standards of the international community. …”
F. Criminal jurisdiction of the United Kingdom over acts of torture
1. The United Kingdom ratified the UN Convention with effect
from 8 December 1988.
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2. Section 134 of the Criminal Justice Act 1988, which entered
into force on 29 September 1988, made torture, wherever
committed, a criminal offence under United Kingdom law
triable in the United Kingdom.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
1. It is true that, taken together, Articles 1 and 3 place a number
of positive obligations on the High Contracting Parties,
designed to prevent and provide redress for torture and other
forms of ill-treatment. However, in each case the State’s
obligation applies only in relation to ill-treatment allegedly
committed within its jurisdiction.
2. In Soering . . the Court recognised that Article 3 has some,
limited, extraterritorial application, to the extent that the
decision by a Contracting State to expel an individual might
engage the responsibility of that State under the Convention,
where substantial grounds had been shown for believing that
the person concerned, if expelled, faced a real risk of being
subjected to torture or to inhuman or degrading treatment or
punishment in the receiving country. In the judgment it was
emphasised, however, that in so far as any liability under the
Convention might be incurred in such circumstances, it
would be incurred by the expelling Contracting State by
reason of its having taken action which had as a direct
consequence the exposure of an individual to proscribed ill-
treatment (op. cit., pp. 35-36, § 91).
3. The applicant does not contend that the alleged torture took
place within the jurisdiction of the United Kingdom or that
the United Kingdom authorities had any causal connection
with its occurrence. In these circumstances, it cannot be said
that the High Contracting Party was under a duty to provide
a civil remedy to the applicant in respect of torture allegedly
carried out by the Kuwaiti authorities.
4. It follows that there has been no violation of Article 3 of the
Convention in the present case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
B. Compliance with Article 6 § 1
2. The Court’s assessment
1. In Golder v. the United Kingdom (judgment of 21 February
1975, Series A no. 18, pp. 13-18, §§ 28-36) the Court held
that the procedural guarantees laid down in Article 6
concerning fairness, publicity and promptness would be
meaningless in the absence of any protection for the pre-
condition for the enjoyment of those guarantees, namely,
access to a court. It established this as an inherent aspect of
the safeguards enshrined in Article 6, referring to the
principles of the rule of law and the avoidance of arbitrary
power which underlie much of the Convention. Thus, Article
6 § 1 secures to everyone the right to have any claim relating
to his civil rights and obligations brought before a court.
2. The right of access to a court is not, however, absolute, but
may be subject to limitations; these are permitted by
implication since the right of access by its very nature calls
for regulation by the State. In this respect, the Contracting
States enjoy a certain margin of appreciation, although the
final decision as to the observance of the Convention’s
requirements rests with the Court. It must be satisfied that
the limitations applied do not restrict or reduce the access
left to the individual in such a way or to such an extent that
the very essence of the right is impaired. Furthermore, a
limitation will not be compatible with Article 6 § 1 if it does
not pursue a legitimate aim and if there is no reasonable
relationship of proportionality between the means employed
and the aim sought to be achieved (see Waite and Kennedy
v. Germany [GC], no. 26083/94, § 59, ECHR 1999-I).
3. The Court must first examine whether the limitation pursued
a legitimate aim. It notes in this connection that sovereign
immunity is a concept of international law, developed out of
the principle par in parem non habet imperium, by virtue of
which one State shall not be subject to the jurisdiction of
another State. The Court considers that the grant of
sovereign immunity to a State in civil proceedings pursues
the legitimate aim of complying with international law to
promote comity and good relations between States through
the respect of another State’s sovereignty.
4. The Court must next assess whether the restriction was
proportionate to the aim pursued. It reiterates that the
Convention has to be interpreted in the light of the rules set
out in the Vienna Convention on the Law of Treaties of 23
May 1969, and that Article 31 § 3 (c) of that treaty indicates
that account is to be taken of “any relevant rules of
international law applicable in the relations between the
parties”. The Convention, including Article 6, cannot be
interpreted in a vacuum. The Court must be mindful of the
Convention’s special character as a human rights treaty, and
it must also take the relevant rules of international law into
account (see, mutatis mutandis, Loizidou v. Turkey (merits),
judgment of 18 December 1996, Reports 1996-VI, p. 2231,
§ 43). The Convention should so far as possible be
interpreted in harmony with other rules of international law
of which it forms part, including those relating to the grant
of State immunity.
1. It follows that measures taken by a High Contracting Party
which reflect generally recognised rules of public
international law on State immunity cannot in principle be
regarded as imposing a disproportionate restriction on the
right of access to a court as embodied in Article 6 § 1. Just
as the right of access to a court is an inherent part of the fair
trial guarantee in that Article, so some restrictions on access
must likewise be regarded as inherent, an example being
those limitations generally accepted by the community of
nations as part of the doctrine of State immunity.
2. The Court notes that the 1978 Act, applied by the English
courts so as to afford immunity to Kuwait, complies with the
relevant provisions of the 1972 Basle Convention, which,
while placing a number of limitations on the scope of State
immunity as it was traditionally understood, preserves it in
respect of civil proceedings for damages for personal injury
unless the injury was caused in the territory of the forum
State (see paragraph 22 above). Except insofar as it affects
claims for damages for torture, the applicant does not deny
that the above provision reflects a generally accepted rule of
international law. He asserts, however, that his claim related
to torture, and contends that the prohibition of torture has
acquired the status of a jus cogens norm in international law,
taking precedence over treaty law and other rules of
international law.
3. Following the decision to uphold Kuwait’s claim to
immunity, the domestic courts were never required to
examine evidence relating to the applicant’s allegations,
which have, therefore, never been proved. However, for the
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purposes of the present judgment, the Court accepts that the
ill-treatment alleged by the applicant against Kuwait in his
pleadings in the domestic courts, namely, repeated beatings
by prison guards over a period of several days with the aim
of extracting a confession (see paragraph 11 above), can
properly be categorised as torture within the meaning of
Article 3 of the Convention (see Selmouni v. France [GC],
no. 25803/94, ECHR 1999-V, and Aksoy, cited above).
4. Within the Convention system it has long been recognised
that the right under Article 3 not to be subjected to torture or
to inhuman or degrading treatment or punishment enshrines
one of the fundamental values of democratic society. It is an
absolute right, permitting of no exception in any
circumstances (see, for example, Aksoy, cited above, p.
2278, § 62, and the cases cited therein). Of all the categories
of ill- treatment prohibited by Article 3, “torture” has a
special stigma, attaching only to deliberate inhuman
treatment causing very serious and cruel suffering (ibid., pp.
227879, § 63, and see also the cases referred to in paragraphs
38-39 above).
5. Other areas of public international law bear witness to a
growing recognition of the overriding importance of the
prohibition of torture. Thus, torture is forbidden by Article 5
of the Universal Declaration of Human Rights and Article 7
of the International Covenant on Civil and Political Rights.
The United Nations Convention against Torture and Other
Cruel, Inhuman and Degrading Treatment or Punishment
requires, by Article 2, that each State Party should take
effective legislative, administrative, judicial or other
measures to prevent torture in any territory under its
jurisdiction, and, by Article 4, that all acts of torture should
be made offences under the State Party’s criminal law (see
paragraphs 25-29 above). In addition, there have been a
number of judicial statements to the effect that the
prohibition of torture has attained the status of a peremptory
norm or jus cogens. For example, in its judgment of 10
December 1998 in Furundzija (see paragraph 30 above), the
International Criminal Tribunal for the Former Yugoslavia
referred, inter alia, to the foregoing body of treaty rules and
held that “[b]ecause of the importance of the values it
protects, this principle [proscribing torture] has evolved into
a peremptory norm or jus cogens, that is, a norm that enjoys
a higher rank in the international hierarchy than treaty law
and even ‘ordinary’ customary rules”. Similar statements
have been made in other cases before that tribunal and in
national courts, including the House of Lords in the case of
ex parte Pinochet (No. 3) (see paragraph 34 above).
6. While the Court accepts, on the basis of these authorities,
that the prohibition of torture has achieved the status of a
peremptory norm in international law, it observes that the
present case concerns not, as in Furundzija and Pinochet, the
criminal liability of an individual for alleged acts of torture,
but the immunity of a State in a civil suit for damages in
respect of acts of torture within the territory of that State.
Notwithstanding the special character of the prohibition of
torture in international law, the Court is unable to discern in
the international instruments, judicial authorities or other
materials before it any firm basis for concluding that, as a
matter of international law, a State no longer enjoys
immunity from civil suit in the courts of another State where
acts of torture are alleged. In particular, the Court observes
that none of the primary international instruments referred to
(Article 5 of the Universal Declaration of Human Rights,
Article 7 of the International Covenant on Civil and Political
Rights and Articles 2 and 4 of the UN Convention) relates to
civil proceedings or to State immunity.
7. It is true that in its Report on Jurisdictional Immunities of
States and their Property (see paragraphs 23-24 above) the
working group of the International Law Commission noted,
as a recent development in State practice and legislation on
the subject of immunities of States, the argument
increasingly put forward that immunity should be denied in
the case of death or personal injury resulting from acts of a
State in violation of human rights norms having the character
of jus cogens, particularly the prohibition on torture.
However, as the working group itself acknowledged, while
national courts had in some cases shown some sympathy for
the argument that States were not entitled to plead immunity
where there had been a violation of human rights norms with
the character of jus cogens, in most cases (including those
cited by the applicant in the domestic proceedings and before
the Court) the plea of sovereign immunity had succeeded.
8. The ILC working group went on to note developments, since
those decisions, in support of the argument that a State may
not plead immunity in respect of human rights violations:
first, the exception to immunity adopted by the United States
in the amendment to the Foreign Sovereign Immunities Act
(FSIA) which had been applied by the United States courts
in two cases; secondly, the ex parte Pinochet (No. 3)
judgment in which the House of Lords “emphasised the
limits of immunity in respect of gross human rights
violations by State officials”. The Court does not, however,
find that either of these developments provides it with a firm
basis on which to conclude that the immunity of States
ratione personae is no longer enjoyed in respect of civil
liability for claims of acts of torture, let alone that it was not
enjoyed in 1996 at the time of the Court of Appeal’s
judgment in the present case.
9. As to the amendment to the FSIA, the very fact that the
amendment was needed would seem to confirm that the
general rule of international law remained that immunity
attached even in respect of claims of acts of official torture.
Moreover, the amendment is circumscribed in its scope: the
offending State must be designated as a State sponsor of acts
of terrorism, and the claimant must be a national of the
United States. The effect of the FSIA is further limited in
that after judgment has been obtained, the property of a
foreign State is immune from attachment or execution unless
one of the statutory exceptions applies (see paragraph 24
above).
10. As to the ex parte Pinochet (No. 3) judgment (see paragraph
34 above), the Court notes that the majority of the House of
Lords held that, after the UN Convention and even before,
the international prohibition against official torture had the
character of jus cogens or a peremptory norm and that no
immunity was enjoyed by a torturer from one Torture
Convention State from the criminal jurisdiction of another.
But, as the working group of the ILC itself acknowledged,
that case concerned the immunity ratione materiae from
criminal jurisdiction of a former head of State, who was at
the material time physically within the United Kingdom. As
the judgments in the case made clear, the conclusion of the
House of Lords did not in any way affect the immunity
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CASE DIGESTS
ratione personae of foreign sovereign States from the civil
jurisdiction in respect of such acts (see in particular, the
judgment of Lord Millett, mentioned in paragraph 34 above).
In so holding, the House of Lords cited with approval the
judgments of the Court of Appeal in Al-Adsani itself.
1. The Court, while noting the growing recognition of the
overriding importance of the prohibition of torture, does not
accordingly find it established that there is yet acceptance in
international law of the proposition that States are not
entitled to immunity in respect of civil claims for damages
for alleged torture committed outside the forum State. The
1978 Act, which grants immunity to States in respect of
personal injury claims unless the damage was caused within
the United Kingdom, is not inconsistent with those
limitations generally accepted by the community of nations
as part of the doctrine of State immunity.
2. In these circumstances, the application by the English courts
of the provisions of the 1978 Act to uphold Kuwait’s claim
to immunity cannot be said to have amounted to an
unjustified restriction on the applicant’s access to a court.
It follows that there has been no violation of Article 6 § 1 of the
Convention in this case. FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been no violation of
Article 3 of the Convention;
2. Holds by nine votes to eight that there has been no violation
of Article 6 § 1 of the Convention.
Done in English and in French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 21 November 2001.
Nuclear Tests Case (Australia & New Zealand v. France) 1974
Brief Fact Summary. Australia and New Zealand (P) requested
France (D) to put an halt to atmospheric nuclear test in the South
Pacific.
Synopsis of Rule of Law. Declaration made through unilateral acts
may have the effect of creating legal obligations.
Facts. A series of nuclear tests was completed by France (D) in the
South Pacific. This action made Australia and New Zealand (P) to
apply to the I.C.J. demanding that France (D) cease testing
immediately. Before the case could be completed, France (D)
announced it had completed the test and did not plan any further test.
So France (D) moved for the dismissal of the application.
Issue. May declaration made through unilateral act has effect of
creating legal obligations?
Held. Yes. Declaration made through unilateral acts may have the
effect of creating legal obligations. In this case, the statement made by
the President of France must be held to constitute an engagement of
the State in regard to the circumstances and intention with which they
were made. Therefore, these statement made by the France (D) are
relevant and legally binding. Application was dismissed.
Discussion. The unilateral statements made by French authorities were
first relayed to the government of Australia. There was no need for the
statements to be directed to any particular state for it to have legal
effect. The general nature and characteristics of the statements alone
were relevant for evaluation of their legal implications.
Request for an Examination of the Situation in Accordance with
Paragraph 63 of the Court's Judgment of 20 December 1974 in the
Nuclear Tests (New Zealand v. France) Case
On 21 August 1995, the New Zealand Government filed in the Registry
a document entitled “Request for an Examination of the Situation” in
which reference was made to a “proposed action announced by France
which will, if carried out, affect the basis of the Judgment rendered by
the Court on 20 December 1974 in the Nuclear Tests (New Zealand v.
France) case”, namely “a decision announced by France in a media
statement of 13 June 1995” by the President of the French Republic,
according to which “France would conduct a final series of eight
nuclear weapons tests in the South Pacific starting in September 1995”.
In that Request, the Court was reminded that, at the end of its 1974
Judgment, it had found that it was not called upon to give a decision
on the claim submitted by New Zealand in 1973, that claim no longer
having any object, by virtue of the declarations by which France had
undertaken not to carry out further atmospheric nuclear tests. That
Judgment contained a paragraph 63 worded as follows
“Once the Court has found that a State has entered into a commitment
concerning its future conduct it is not the Court’s function to
contemplate that it will not comply with it. However, the Court
observes that if the basis of this Judgment were to be affected, the
Applicant could request an examination of the situation in accordance
with the provisions of the Statute . . .”
New Zealand asserted that this paragraph gave it the “right”, in such
circumstances, to request “the resumption of the case begun by
application on 9 May 1973”, and observed that the operative part of
the Judgment concerned could not be construed as showing any
intention on the part of the Court definitively to close the case. On the
same day, the New Zealand Government also filed in the Registry a
“Further Request for the Indication of Provisional Measures” in which
reference was made, inter alia, to the Order for the indication of
provisional measures made by the Court on 22 June 1973, which was
principally aimed at ensuring that France would refrain from
conducting any further nuclear tests at Mururoa and Fangataufa Atolls.
After holding public hearings on 11 and 12 September 1995, the Court
made its Order on 22 September 1995. The Court found that, when
inserting into paragraph 63 the sentence “the Applicant could request
an examination of the situation in accordance with the provisions of
the Statute”, it had not excluded a special procedure for access to it
(unlike those mentioned in the Court’s Statute, such as the filing of a
new application, or a request for interpretation or revision, which
would have been open to the Applicant in any event) ; however, it
found that that special procedure would only be available to the
Applicant if circumstances were to arise which affected the basis of the
1974 Judgment. And that, it found, was not the case, as the decision
announced by France in 1995 had related to a series of underground
tests, whereas the basis of the Judgment of 1974 was France’s
undertaking not to conduct any further atmospheric nuclear tests.
Consequently, New Zealand’s Request for provisional measures and
the Applications for permission to intervene submitted by Australia,
Samoa, Solomon Islands, the Marshall Islands and the Federated States
of Micronesia as well as the Declarations of Intervention made by the
last four States, all of which were proceedings incidental to New
Zealand’s main request, likewise had to be dismissed.
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Legality of the Use by a State of Nuclear Weapons in Armed
Conflict (Advisory Opinion), ICJ Reports, 8 July 1996
By a letter dated 27 August 1993, filed in the Registry on 3 September
1993, the Director-General of the World Health Organization officially
communicated to the Registrar a decision taken by the World Health
Assembly to submit to the Court the following question, set forth in
resolution WHA46.40 adopted on 14 May 1993
“In view of the health and environmental effects, would the use of
nuclear weapons by a State in war or other armed conflict be a breach
of its obligations under international law including the WHO
Constitution ?”
The Court decided that the WHO and the member States of that
organization entitled to appear before the Court were likely to be able
to furnish information on the question, in accordance with Article 66,
paragraph 2, of the Statute. Written statements were filed by 35 States,
and subsequently written observations on those written statements
were presented by nine States. In the course of the oral proceedings,
which took place in October and November 1995, the WHO and 20
States presented oral statements. On 8 July 1996, the Court found that
it was not able to give the advisory opinion requested by the World
Health Assembly.
It considered that three conditions had to be satisfied in order to found
the jurisdiction of the Court when a request for advisory opinion was
submitted to it by a specialized agency : the agency requesting the
opinion had to be duly authorized, under the Charter, to request
opinions of the Court ; the opinion requested had to be on a legal
question ; and that question had to be one arising within the scope of
the activities of the requesting agency. The first two conditions had
been met. With regard to the third, however, the Court found that
although according to its Constitution the WHO is authorized to deal
with the health effects of the use of nuclear weapons, or of any other
hazardous activity, and to take preventive measures aimed at
protecting the health of populations in the event of such weapons being
used or such activities engaged in, the question put to the Court in the
present case related not to the effects of the use of nuclear weapons on
health, but to the legality of the use of such weapons in view of their
health and environmental effects.
The Court further pointed out that international organizations did not,
like States, possess a general competence, but were governed by the
“principle of speciality”, that is to say, they were invested by the States
which created them with powers, the limits of which were a function
of the common interests whose promotion those States entrusted to
them. Besides, the WHO was an international organization of a
particular kind — a “specialized agency” forming part of a system
based on the Charter of the United Nations, which was designed to
organize international co-operation in a coherent fashion by bringing
the United Nations, invested with powers of general scope, into
relationship with various autonomous and complementary
organizations, invested with sectorial powers. The Court therefore
concluded that the responsibilities of the WHO were necessarily
restricted to the sphere of “public health” and could not encroach on
the responsibilities of other parts of the United Nations system. There
was no doubt that questions concerning the use of force, the regulation
of armaments and disarmament were within the competence of the
United Nations and lay outside that of the specialized agencies. The
Court accordingly found that the request for an advisory opinion
submitted by the WHO did not relate to a question arising “within the
scope of [the] activities” of that organization.
The Paquete Habana, 175 U.S. 677 (1900)
Brief Fact Summary. The argument of the fishermen whose vessels
was seized by the U.S (P) officials was that international law exempted
coastal fishermen from capture as prizes of war.
Synopsis of Rule of Law. The argument of the fishermen whose vessels
was seized by the U.S (P) officials was that international law exempted
coastal fishermen from capture as prizes of war.
Facts. This appeal of a district court decree, which condemned two
fishing vessels and their cargoes as prizes of war, was brought by the
owners (D) of two separate fishing vessels. Each of the vessel running
in and out of Havana and sailing under the Spanish flag was a fishing
smack which regularly engaged in fishing on the coast of Cuba. Inside
the vessels were fresh fish which the crew had caught.
The owners of the vessels were not aware of the existence of a war
until they were stopped by U.S. (P) squadron. No incriminating
material like arms were found on the fishermen and they did not make
any attempt to run the blockade after learning of its existence not did
they resist their arrest. When the owners (D) appealed, they argued that
both customary international law and writings of leading international
scholars recognized an exemption from seizure at wartime of coastal
fishing vessels.
Issue. Are coastal fishing vessels with their cargoes and crews
excluded from prizes of war?
Held. (Gray, J.). Yes. Coastal fishing vessels with their cargoes and
crews are excluded from prizes of war. The doctrine that exempts
coastal fishermen with their vessels and crews from capture as prizes
of war has been known by the U.S. (P) from the time of the War of
Independence and has been recognized explicitly by the French and
British governments. It is an established rule of international law that
coastal fishing vessels with their equipment and supplies, cargoes and
crews, unarmed and honestly pursuing their peaceful calling of
catching and bringing in fish are exempt from capture as prizes of war.
Reversed.
Case Concerning the Right of Passage Over Indian Territory
(Portugal v. India), ICJ Reports, 12 April 1960 Case Concerning
the Right of Passage Over Indian Territory (Portugal v. India),
ICJ Reports, 12 April 1960--- SEE SEPARATE FILE
Texaco v. Libya, 17 ILM or 53 ILR 389, 1978
Brief Fact Summary. A decree which attempted to nationalize all of
Texaco’s (P) rights, interest and property in Libya was promulgated by
Libya (D).
Synopsis of Rule of Law. Whenever reference is been made to general
principles of law in the international arbitration context, it is always
held to be a sufficient criterion for the internationalization of a contract.
Facts. A decree to nationalize all Texaco’s (P) rights, interest and
property in Libya was promulgated by Libya (D). This action of the
Libyan Government led Texaco (P) to request for arbitration, but it was
refused by Libya (D). A sole arbitrator was however appointed by the
International Court of Justice on Texaco’s request, and Libya (D) was
found to have breached its obligations under the Deeds of Concessions
and was also legally bound to perform in accordance with their terms.
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Issue. Whenever reference is being made to general principles of law
in the International arbitration context, can this be held to be a
sufficient criterion for the internationalization of a contract?
Held. Yes. Whenever reference is been made to general principles of
law in the international arbitration context, it is always held to be a
sufficient criterion for the internationalization of a contract. The lack
of adequate law in the state considered and the need to protect the
private contracting party against unilateral and abrupt modifications of
law in the contracting state is a justification to the recourse to general
principles. Though international law involves subjects of a diversified
nature, legal international capacity is not solely attributable to a state.
A private contracting party, unlike a state, has only a limited capacity
and is limited to invoke only those rights that he derives from his
contract.
Discussion. Applying Libyan law or international law in the
arbitration proceedings was a conflict encountered by in this case.
Though the contract itself deferred to Libyan law, the court noted that
Libyan law does not preclude the application of international law, but
that the two must be combined in order to verify that Libyan law
complies with international law. Even though the right of a state to
nationalize is recognized by international law, this right in itself is not
a sufficient justification not to regard its contractual obligations.
East Timor (Portugal v. Australia, 1995)--- SEE SEPARATE
FILE
CASES ON GENERAL PRINCIPLES OF LAW
Case concerning the Temple of Preah Vihear--- SEE SEPARATE
FILE
Corfu Channel Case (1949)
Brief Fact Summary. The fact that the Albanian (P) authorities did
not make the presence of mines in its waters was the basis of the United
Kingdom (D) claim against them.
Synopsis of Rule of Law. International obligations in peace time are
created through elementary consideration.
Facts. The explosion of mines in the Albanian (P) waters resulted in
the death of a British naval personnel. It was on this basis that the
United Kingdom (D) claimed that Albania (P) was internationally
responsible for damages.
Issue. Are international obligations in time of peace created through
elementary consideration?
Held. Yes. International obligations in peace time are created through
elementary consideration. Every state has an obligation not to
knowingly allow its territory to be used for acts contrary to the rights
of other states.
Discussion. In this case, the Court found that the Hague Convention of
1907 could not be applied but the Convention was applicable only in
time of war. It was on the basis of the principle of freedom of maritime
communication that this case was decided.
Chorzow Factory Case, 1928
Facts: In the Upper Silesia plebiscite a majority of 31,864 voters voted
to remain in Germany while 10,764 votes were given for Poland.[5]
Following three Silesian uprisings, the eastern part of Silesia, including
Chorzow and Królewska Huta, was separated from Germany and
awarded to Poland in 1922. Migrations of people followed. Because of
its strategic value, the case of the nitrogen factory Oberschlesische
Stickstoffwerke was argued for years before the Permanent Court of
International Justice, finally setting some new legal precedences on
what is "just" in international relations.
The Court held that:
 A State is held responsible for expropriation of alien
property
 At International Law, a nation is responsible for acts of
Government organs or officers.
 It is a general principle of international law that reparation is
to be made for violations of international law.
Barcelona Traction, Light and Power Company Ltd, (Belgium v.
Spain) 1970
Brief Fact Summary. Belgium (P) claimed Spain (D) should be held
accountable for the injury to a Canadian corporation operating in
Spain.
Synopsis of Rule of Law. A state assumes an obligation concerning
the treatment of foreign investments based on general international
law, once the state admits foreign investments or foreign nationals into
its territory.
Facts. On behalf of Belgian nationals (P) who had invested in a
Canadian corporation, Belgium (P) sued Spain (D) on the premise that
Spain (D) was responsible for acts in violation of international law that
had caused injury to the Canadian corporation and its Belgian
shareholders (P).
Issue. Does a state assumes an obligation concerning the treatment of
foreign investments based on general international law, once the state
admits foreign investments or foreign nationals into its territory?
Held. Yes. A state assumes an obligation concerning the treatment of
foreign investments based on general international law, once the state
admits foreign investments or foreign nationals into its territory. It is
highly imperative to draw a distinction between those obligations of a
state toward the international community as a whole and those arising
from the field of diplomatic protection. It is only the party to whom an
international obligation is due can bring a claim if a breach of an
obligation that is the subject of diplomatic protection occurs.
Discussion. The basic right of all human persons was mentioned by
the Court to be protected against slavery and racial discrimination as
deriving from basic general international law. Such rights may derive
from international instruments of a universal or quasi-universal
character. Such obligations are obligations erga omnes, that is, all
states have a legal interest in their protection.
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