BAYAN (Bagong Alyansang Makabayan) vs Executive Secretary Ronaldo directly involves the illegal disbursement of public funds derived
public funds derived from
Zamora
Facts: On March 14, 1947, the Philippines and the United States of America
forged a Military Bases Agreement which formalized, among others, the use of
installations in the Philippine territory by United States military personnel. In
view of the impending expiration of the RP-US Military Bases Agreement in
1991, the Philippines and the United States negotiated for a possible
extension of the military bases agreement. On September 16, 1991, the
Philippine Senate rejected the proposed RP-US Treaty of Friendship,
Cooperation and Security which, in effect, would have extended the presence
of US military bases in the Philippines. On July 18, 1997, the United States
panel, headed by US Defense Deputy Assistant Secretary for Asia Pacific Kurt
Campbell, met with the Philippine panel, headed by Foreign Affairs
Undersecretary Rodolfo Severino Jr., to exchange notes on “the
complementing strategic interests of the United States and the Philippines in
the Asia-Pacific region.” Both sides discussed, among other things, the
possible elements of the Visiting Forces Agreement (VFA for brevity).
Thereafter, then President Fidel V. Ramos approved the VFA, which was
respectively signed by public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard. On October 5, 1998, President Joseph E.
Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA. On
October 6, 1998, the President, acting through respondent Executive
Secretary Ronaldo Zamora, officially transmitted to the Senate of the
Philippines, the Instrument of Ratification, the letter of the President and the
VFA, for concurrence pursuant to Section 21, Article VII of the 1987
Constitution
Issues (justiciable controversy): (1) Whether or not petitioners have legal
standing as concerned citizens, taxpayers, or legislators to question the
constitutionality of the VFA; (2) whether the VFA is governed by the provisions
of Section 21, Article VII or of Section 25, Article XVIII of the Constitution; (3)
and whether or not the Supreme Court has jurisdiction.
Ruling: (1) No. Petitioners failed to show that they have sustained, or are in
danger of sustaining any direct injury as a result of the enforcement of the
VFA. As taxpayers, petitioners have not established that the VFA involves the
exercise by Congress of its taxing or spending powers. On this point, it bears
stressing that a taxpayer’s suit refers to a case where the act complained of
taxation.
(2) Yes.The fact that the President referred the VFA to the Senate under
Section 21, Article VII, and that the Senate extended its concurrence under
the same provision, is immaterial. For in either case, whether under Section
21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline
that the concurrence of the Senate is mandatory to comply with the strict
constitutional requirements.
(3) No. In fine, absent any clear showing of grave abuse of discretion on the
part of respondents, the Court as the final arbiter of legal controversies and
staunch sentinel of the rights of the people is then without power to conduct
an incursion and meddle with such affairs purely executive and legislative in
character and nature. For the Constitution no less, maps out the distinct
boundaries and limits the metes and bounds within which each of the three
political branches of government may exercise the powers exclusively and
essentially conferred to it by law.
2. Lim vs. Executive Secretary G.R. No. 151445 April 11, 2002
FACTS :
Beginning 2002, personnel from the armed forces of the United States started
arriving in Mindanao, to take part, in conjunction with the Philippine military,
in “Balikatan 02-1”. In theory, they are a simulation of joint military maneuvers
pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered
into by the Philippines and the United States in 1951.
On Feb. 2002, Lim filed this petition for certiorari and prohibition, praying that
respondents be restrained from proceeding with the so-called “Balikatan 02-
1”, and that after due notice and hearing, judgment be rendered issuing a
permanent writ of injuction and/or prohibition against the deployment of US
troops in Basilan and Mindanao for being illegal and in violation of the
Constitution.
Petitioners contend that the RP and the US signed the Mutual Defense Treaty
to provide mutual military assistance in accordance with the “constitutional
processes” of each country only in the case of a armed attack by an external
aggressor, meaning a third country, against one of them. They further argued
that it cannot be said that the Abu Sayyaf in Basilan constitutes an external
aggressor to warrant US military assistance in accordance with MDT of 1951.
Another contention was that the VFA of 1999 does not authorize American
soldiers to engage in combat operations in Philippine territory.
ISSUE : Whether or not the “Balikatan 02-1” activities are covered by the VFA.
RULING : Petition is dismissed. The VFA itself permits US personnel to engage
on an impermanent basis, in “activities”, the exact meaning of which is left
undefined. The sole encumbrance placed on its definition is couched in the
negative, in that the US personnel “must abstain from any activity inconsistent
with the spirit of this agreement, and in particular, from any political activity.”
Under these auspices, the VFA gives legitimacy to the current Balikatan
exercises. It is only logical to assume that “Balikatan 02-1” – a mutual anti
terrorism advising assisting and training exercise falls under the umbrella of
sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities – as opposed to combat itself – such
as the one subject of the instant petition, are indeed authorized.
3. Pimentel v. Executive Secretary
G.R. No. 158088 July 6, 2005
Facts:
1. The petitioners filed a petition for mandamus to compel the Office of the
Executive Secretary and the Department of Foreign Affairs to transmit the
signed copy of the Rome Statute of the International Criminal Court to the
Senate of the Philippinesfor its concurrence pursuant to Sec. 21, Art VII of the
1987 Constitution.
2. The Rome Statute established the Int'l Criminal Court which will have
jurisdiction over the most serious crimes as genocide, crimes against
humanity, war crimes and crimes of aggression as defined by the Statute. The
Philippines through the Chargie du Affairs in UN. The provisions of the Statute
however require that it be subject to ratification, acceptance or approval of
the signatory state.
3. Petitioners contend that ratification of a treaty, under both domestic and
international law, is a function of the Senate, hence it is the duty of the
Executive Department to transmit the signed copy to the senate to allow it to
exercise its discretion.
Issue: Whether or not the Exec. Secretary and the DFA have the ministerial
duty to transmit to the Senate the copy of the Rome Statute signed by a
member of the Philippine mission to the U.N. even without the signature of
the President.
The Supreme Court held NO.
1. The President as the head of state is the sole organ and authorized in the
external relations and he is also the country's sole representative with foreign
nations, He is the mouthpiece with respect to the country's foreign affairs.
2. In treaty-making, the President has the sole authority to negotiate with
other states and enter into treaties but this power is limited by the
Constitution with the 2/3 required vote of all the members of the Senate for
the treaty to be valid. (Sec. 21, Art VII).
3. The legislative branch part is essential to provide a check on the executive
in the field of foreign relations, to ensure the nation's pursuit of political
maturity and growth.
4. Pharmaceutical and Health Care Association of the Philippines v Duque III
Facts:
Petition for certiorari seeking to nullify the Revised Implementing Rules and
Regulations (RIRR) of E.O. 51 (Milk Code). Petitioner claims that the RIRR is not
valid as it contains provisions that are not constitutional and go beyond what
it is supposed to implement. Milk Code was issued by President Cory Aquino
under the Freedom Constitution on Oct.1986. One of the preambular clauses
of the Milk Code states that the law seeks to give effect to Art 11 of the Int’l
Code of Marketing and Breastmilk Substitutes(ICBMS), a code adopted by the
World Health Assembly(WHA). From 1982-2006, The WHA also adopted
severe resolutions to the effect that breastfeeding should be supported,
hence, it should be ensured that nutrition and health claims are not permitted
for breastmilk substitutes. In 2006, the DOH issued the assailed RIRR.
Issue:
Sub-Issue: W/N the pertinent int’l agreements entered into by the Phil are
part of the law of the land and may be implemented by DOH through the
RIRR. If yes, W/N the RIRR is in accord with int’l agreements
MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave
abuse of discretion amounting to lack of excess of jurisdiction and in violation
of the Constitution by promulgating the RIRR.
have the option of how to take care of their babies as they see fit. WHA
Resolutions may be classified as SOFT LAW – non-binding norms, principles
and practices that influence state behavior. Soft law is not part of int’l law.
Main issue:
Yes. Some parts of the RIRR were not in consonance with the Milk Code such
as Sec. 4(f) ->advertising, promotions of formula are prohibited,
Sec 11 -> prohibitions for advertising breastmilk substitutes intended for
infants and young children uo to 24 months
And Sec 46 -> sanctions for advertising .
These provisions are declared null and void. The DOH and respondents are
prohibited from implementing said provisions.

Held:
Sub-issue:
Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by
transformation (thru constitutional mechanism such as local legislation) or
incorporation (mere constitutional declaration i.e treaties) The ICBMS and
WHA resolutions were not treaties as they have not been concurred by 2/3 of
all members of the Senate as required under Sec, 21, Art 8. However, the
ICBMS had been transformed into domestic law through a local legislation
such as the Milk Code. The Milk Code is almost a verbatim reproduction of Province of North Cotabato, Province of Zamboanga Del Norte, City of Iligan,
ICBMS. City of Zamboanga, petitioners in intervention Province of Sultan Kudarat,
City of Isabela and Municipality of Linnamon, Intervenors Franklin Drilon
No for WHA Resolutions. The Court ruled that DOH failed to establish that the and Adel Tamano and Sec. Mar Roxas
provisions pertinent WHA resolutions are customary int’l law that may be
deemed part of the law of the land. For an int’l rule to be considered as -vs-
customary law, it must be established that such rule is being followed by
states because they consider it as obligatory to comply with such rules Ermita Exec.Sec., Romulo Sec DFA, Andaya Sec DBM, Ventura Administrator
(opinion juris). The WHO resolutions, although signed by most of the member National Mapping & Resource Information Authority and Davide Jr. and
states, were enforced or practiced by at least a majority of member states. respondents in intervention Muslim Multi-Sectoral Movement for Peace and
Unlike the ICBMS whereby legislature enacted most of the provisions into the Development and Muslim Legal Assistance Foundation Inc.,
law via the Milk Code, the WHA Resolutions (specifically providing for
exclusive breastfeeding from 0-6 months, breastfeeding up to 24 Months and Facts:
absolutely prohibiting ads for breastmilk substitutes) have not been adopted
as domestic law nor are they followed in our country as well. The Filipinos
 Subject of this case is the Memorandum of Agreement on the Ancestral
Domain (MOA-AD) which is scheduled to be signed by the Government of the
Republic of the Philippines and the MILF in August 05, 2008. Five cases
bearing the same subject matter were consolidated by this court namely:-
• GR 183591 by the Province of Cotabato and Vice Governor Pinol on its prayer
to declare unconstitutional and to have the MOA-AD disclosed to the public
and be open for public consultation.
• GR 183752 by the City of Zamboanga et al on its prayer to declare null and
void said MOA-AD and to exclude the city to the BJE.
• GR 183893 by the City of Iligan enjoining the respondents from signing the
MOA-AD and additionally impleading Exec. Sec. Ermita.
• GR 183951 by the Province of Zamboanga del Norte et al, praying to declare
null and void the MOA-AD and without operative effect and those
respondents enjoined from executing the MOA-AD.
• GR 183692 by Maceda, Binay and Pimentel III, praying for a judgment
prohibiting and permanently enjoining respondents from formally signing and
executing the MOA-AD and or any other agreement derived therefrom or
similar thereto, and nullifying the MOA-AD for being unconstitutional and
illegal and impleading Iqbal.
The MOA-AD is a result of various agreements entered into by and
between the government and the MILF starting in 1996; then in 1997, they
signed the Agreement on General Cessation of Hostilities; and the following
year, they signed the General Framework of Agreement of Intent on August
27, 1998. However, in 1999 and in the early of 2000, the MILF attacked a
number of municipalities in Central Mindanao. In March 2000, they took the
hall of Kauswagan, Lanao del Norte; hence, then Pres. Estrada declared an all-
out war-which tolled the peace negotiation. It was when then Pres. Arroyo
assumed office, when the negotiation regarding peace in Mindanao
continued. MILF was hesitant; however, this negotiation proceeded when the
government of Malaysia interceded. Formal peace talks resumed and MILF
suspended all its military actions. The Tripoli Agreement in 2001 lead to the
ceasefire between the parties. After the death of MILF Chairman Hashim and
Iqbal took over his position, the crafting of MOA-AD in its final form was born.
• MOA-AD Overview
This is an agreement to be signed by the GRP and the MILF. Used as reference
in the birth of this MOA-AD are the Tripoli Agreement, organic act of ARMM,
IPRA Law, international laws such as ILO Convention 169, the UN Charter etc.,
and the principle of Islam i.e compact right entrenchment (law of compact,
treaty and order). The body is divided into concepts and principles, territory,
resources, and governance.
Embodied in concepts and principles, is the definition of Bangsamoro as all
indigenous peoples of Mindanao and its adjacent islands. These people have
the right to self- governance of their Bangsamoro homeland to which they
have exclusive ownership by virtue of their prior rights of occupation in the
land. The MOA-AD goes on to describe the Bangsamoro people as "the ‘First
Nation' with defined territory and with a system of government having
entered into treaties of amity and commerce with foreign nations." It then
mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it
grants the authority and jurisdiction over the Ancestral Domain and Ancestral
Lands of the Bangsamoro.
As defined in the territory of the MOA-AD, the BJE shall embrace the
Mindanao-Sulu-Palawan geographic region, involving the present ARMM,
parts of which are those which voted in the inclusion to ARMM in a plebiscite.
The territory is divided into two categories, “A” which will be subject to
plebiscite not later than 12 mos. after the signing and “B” which will be
subject to plebiscite 25 years from the signing of another separate agreement.
Embodied in the MOA-AD that the BJE shall have jurisdiction over the internal
waters-15kms from the coastline of the BJE territory; they shall also have
"territorial waters," which shall stretch beyond the BJE internal waters up to
the baselines of the Republic of the Philippines (RP) south east and south west
of mainland Mindanao; and that within these territorial waters, the BJE and
the government shall exercise joint jurisdiction, authority and management
over all natural resources. There will also be sharing of minerals in the
territorial waters; but no provision on the internal waters.
Included in the resources is the stipulation that the BJE is free to enter into
any economic cooperation and trade relations with foreign countries and shall
have the option to establish trade missions in those countries, as well as
environmental cooperation agreements, but not to include aggression in the
GRP. The external defense of the BJE is to remain the duty and obligation of
the government. The BJE shall have participation in international meetings
and events" like those of the ASEAN and the specialized agencies of the UN.
They are to be entitled to participate in Philippine official missions and
delegations for the negotiation of border agreements or protocols for
 environmental protection and equitable sharing of incomes and revenues
involving the bodies of water adjacent to or between the islands forming part
of the ancestral domain. The BJE shall also have the right to explore its
resources and that the sharing between the Central Government and the BJE
of total production pertaining to natural resources is to be 75:25 in favor of
the BJE. And they shall have the right to cancel or modify concessions and
TLAs.
And lastly in the governance, the MOA-AD claims that the relationship
between the GRP and MILF is associative i.e. characterized by shared authority
and responsibility. This structure of governance shall be further discussed in
the Comprehensive Compact, a stipulation which was highly contested before
the court. The BJE shall also be given the right to build, develop and maintain
its own institutions, the details of which shall be discussed in the
comprehensive compact as well.
Issues:
1. WON the petitions have complied with the procedural requirements for the
exercise of judicial review
2. WON respondents violate constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later
initialed the MOA-AD; and
3. WON the contents of the MOA-AD violated the Constitution and the laws
Ruling:
The SC declared the MOA-AD contrary to law and the Constitution.
• On the Procedural Issue
1st issue: As regards the procedural issue, SC upheld that there is indeed a
need for the exercise of judicial review.
The power of judicial review is limited to actual cases or controversy, that is
the court will decline on issues that are hypothetical, feigned problems or
mere academic questions. Related to the requirement of an actual case or
controversy is the requirement of ripeness. The contention of the SolGen is
that there is no issue ripe for adjudication since the MOA-AD is only a
proposal and does not automatically create legally demandable rights and
obligations. Such was denied.
The SC emphasized that the petitions are alleging acts made in violation of
their duty or in grave abuse of discretion. Well-settled jurisprudence states
that acts made by authority which exceed their authority, by violating their
duties under E.O. No. 3 and the provisions of the Constitution and statutes,
the petitions make a prima facie case for Certiorari, Prohibition, and
Mandamus, and an actual case or controversy ripe for adjudication exists.
When an act of a branch of government is seriously alleged to have infringed
the Constitution, it becomes not only the right but in fact the duty of the
judiciary to settle the dispute. This is aside from the fact that concrete acts
made under the MOA-AD are not necessary to render the present controversy
ripe and that the law or act in question as not yet effective does not negate
ripeness.
With regards to the locus standi, the court upheld the personalities of the
Province of Cotabato, Province of Zamboanga del norte, City of Iligan, City of
Zamboanga, petitioners in intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linnamon to have locus standi since it is their LGUs
which will be affected in whole or in part if include within the BJE. Intervenors
Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert
that government funds would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On that score alone,
they can be given legal standing. Senator Mar Roxas is also given a standing as
an intervenor. And lastly, the Intervening respondents Muslim Multi-Sectoral
Movement for Peace and Development, an advocacy group for justice and the
attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal
Assistance Foundation Inc., a non-government organization of Muslim lawyers
since they stand to be benefited or prejudiced in the resolution of the
petitions regarding the MOA-AD.
On the contention of mootness of the issue considering the signing of the
MOA-AD has already been suspended and that the President has already
disbanded the GRP, the SC disagrees. The court reiterates that the moot and
academic principle is a general rule only, the exceptions, provided in David v.
Macapagal-Arroyo, that it will decide cases, otherwise moot and academic, if
it finds that (a) there is a grave violation of the Constitution; (b) the situation is
of exceptional character and paramount public interest is involved; (c) the
 constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and (d) the case is capable of
repetition yet evading review; and that where there is a voluntary cessation of
the activity complained of by the defendant or doer, it does not divest the
court the power to hear and try the case especially when the plaintiff is
seeking for damages or injunctive relief.
Clearly, the suspension of the signing of the MOA-AD and the disbandment of
the GRP did not render the petitions moot and academic. The MOA-AD is
subject to further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the public and, in this case,
the government and its negotiating entity.
At all events, the Court has jurisdiction over most if not the rest of the
petitions. There is a reasonable expectation that petitioners will again be
subjected to the same problem in the future as respondents' actions are
capable of repetition, in another or any form. But with respect to the prayer of
Mandamus to the signing of the MOA-AD, such has become moot and
academic considering that parties have already complied thereat.
• On the Substantive Issue
2nd Issue: The SC ruled that the MOA-AD is a matter of public concern,
involving as it does the sovereignty and territorial integrity of the State, which
directly affects the lives of the public at large.
As enshrined in the Constitution, the right to information guarantees the right
of the people to demand information, and integrated therein is the
recognition of the duty of the officialdom to give information even if nobody
demands. The policy of public disclosure establishes a concrete ethical
principle for the conduct of public affairs in a genuinely open democracy, with
the people's right to know as the centerpiece. It is a mandate of the State to
be accountable by following such policy. These provisions are vital to the
exercise of the freedom of expression and essential to hold public officials at
all times accountable to the people.
Also, it was held that such stipulation in the Constitution is self-executory with
reasonable safeguards —the effectivity of which need not await the passing of
a statute. Hence, it is essential to keep open a continuing dialogue or process
of communication between the government and the people. It is in the
interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive
to the people's will.
The idea of a feedback mechanism was also sought for since it is corollary to
the twin rights to information and disclosure. And feedback means not only
the conduct of the plebiscite as per the contention of the respondents.
Clearly, what the law states is the right of the petitioners to be consulted in
the peace agenda as corollary to the constitutional right to information and
disclosure. As such, respondent Esperon committed grave abuse of discretion
for failing to carry out the furtive process by which the MOA-AD was designed
and crafted runs contrary to and in excess of the legal authority, and amounts
to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereto.
Moreover, he cannot invoke of executive privilege because he already waived
it when he complied with the Court’s order to the unqualified disclosure of
the official copies of the final draft of the MOA-AD.
In addition, the LGU petitioners has the right to be involved in matters related
to such peace talks as enshrined in the State policy. The MOA-AD is one
peculiar program that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively and drastically
result to the diaspora or displacement of a great number of inhabitants from
their total environment.
With respect to the ICC/IPPs they also have the right to participate fully at all
levels on decisions that would clearly affect their lives, rights and destinies.
The MOA-AD is an instrument recognizing ancestral domain, hence it should
have observed the free and prior informed consent to the ICC/IPPs; but it
failed to do so. More specially noted by the court is the excess in authority
exercised by the respondent—since they allowed delineation and recognition
of ancestral domain claim by mere agreement and compromise; such power
cannot be found in IPRA or in any law to the effect.
3rd issue: With regard to the provisions of the MOA-AD, there can be no
question that they cannot be all accommodated under the present
 Constitution and laws. Not only its specific provisions but the very concept
underlying them:
• On matters of the Constitution.
Association as the type of relationship governing between the parties. The
parties manifested that in crafting the MOA-AD, the term association was
adapted from the international law. In international law, association happens
when two states of equal power voluntarily establish durable links i.e. the one
state, the associate, delegates certain responsibilities to the other, principal,
while maintaining its international status as state; free association is a middle
ground between integration and independence. The MOA-AD contains many
provisions that are consistent with the international definition of association
which fairly would deduced that the agreement vest into the BJE a status of an
associated state, or at any rate, a status closely approximating it. The court
vehemently objects because the principle of association is not recognized
under the present Constitution.
• On the recognition of the BJE entity as a state. The concept implies power
beyond what the Constitution can grant to a local government; even the
ARMM do not have such recognition; and the fact is such concept implies
recognition of the associated entity as a state. There is nothing in the law that
contemplate any state within the jurisdiction other than the Philippine State,
much less does it provide for a transitory status that aims to prepare any part
of Philippine territory for independence. The court disagrees with the
respondent that the MOA-AD merely expands the ARMM. BJE is a state in all
but name as it meets the criteria of a state laid down in the Montevideo
Convention, namely, a permanent population, a defined territory, a
government, and a capacity to enter into relations with other states. As such
the MOA-AD clearly runs counter to the national sovereignty and territorial
integrity of the Republic.
• On the expansion of the territory of the BJE. The territory included in the BJE
includes those areas who voted in the plebiscite for them to become part of
the ARMM. The stipulation of the respondents in the MOA-AD that these
areas need not participate in the plebiscite is in contrary to the express
provision of the Constitution. The law states that that "[t]he creation of the
autonomous region shall be effective when approved by a majority of the
votes cast by the constituent units in a plebiscite called for the purpose,
provided that only provinces, cities, and geographic areas voting favorably in
such plebiscite shall be included in the autonomous region." Clearly, assuming
that the BJE is just an expansion of the ARMM, it would still run afoul the
wordings of the law since those included in its territory are areas which voted
in its inclusion to the ARMM and not to the BJE.
On the powers vested in the BJE as an entity. The respondents contend that
the powers vested to the BJE in the MOA-AD shall be within sub-paragraph 9
of sec 20, art. 10 of the constitution and that a mere passage of a law is
necessary in order to vest in the BJE powers included in the agreement. The
Court was not persuaded. SC ruled that such conferment calls for amendment
of the Constitution; otherwise new legislation will not concur with the
Constitution. Take for instance the treaty making power vested to the BJE in
the MOA-AD. The Constitution is clear that only the President has the sole
organ and is the country’s sole representative with foreign nation. Should the
BJE be granted with the authority to negotiate with other states, the former
provision must be amended consequently. Section 22 must also be amended
—the provision of the law that promotes national unity and development.
Because clearly, associative arrangement of the MOA-AD does not epitomize
national unity but rather, of semblance of unity. The associative ties between
the BJE and the national government, the act of placing a portion of Philippine
territory in a status which, in international practice, has generally been a
preparation for independence, is certainly not conducive to national unity.
On matters of domestic statutes.
o Provisions contrary to the organic act of ARMM. RA 9054 is a bar to the
adoption of the definition of Bangsamoro people used in the MOA-AD. Said
law specifically distinguishes between the Bangsamoro people and the Tribal
peoples that is contrary with the definition of the MOA-AD which includes all
indigenous people of Mindanao.
o Provisions contrary to the IPRA law. Also, the delineation and recognition of
the ancestral domain is a clear departure from the procedure embodied in the
IPRA law which ironically is the term of reference of the MOA-AD.
On matters of international law.
The Philippines adopts the generally accepted principle of international law as
part of the law of the land. In international law, the right to self-determination
has long been recognized which states that people can freely determine their
 political status and freely pursue their economic, social, and cultural
development. There are the internal and external self-determination—
internal, meaning the self-pursuit of man and the external which takes the
form of the assertion of the right to unilateral secession. This principle of self-
determination is viewed with respect accorded to the territorial integrity of
existing states. External self-determination is only afforded in exceptional
cases when there is an actual block in the meaningful exercise of the right to
internal self-determination. International law, as a general rule, subject only
to limited and exceptional cases, recognizes that the right of disposing
national territory is essentially an attribute of the sovereignty of every state.
On matters relative to indigenous people, international law states that
indigenous peoples situated within states do not have a general right to
independence or secession from those states under international law, but
they do have rights amounting to what was discussed above as the right to
internal self-determination; have the right to autonomy or self-government in
matters relating to their internal and local affairs, as well as ways and means
for financing their autonomous functions; have the right to the lands,
territories and resources which they have traditionally owned, occupied or
otherwise used or acquired.
Clearly, there is nothing in the law that required the State to guarantee the
indigenous people their own police and security force; but rather, it shall be
the State, through police officers, that will provide for the protection of the
people. With regards to the autonomy of the indigenous people, the law does
not obligate States to grant indigenous peoples the near-independent status
of a state; since it would impair the territorial integrity or political unity of
sovereign and independent states.
• On the basis of the suspensive clause.
o It was contented by the respondents that grave abuse of discretion cannot
be had, since the provisions assailed as unconstitutional shall not take effect
until the necessary changes to the legal framework are effected.
The Court is not persuaded. This suspensive clause runs contrary to
Memorandum of Instructions from the President stating that negotiations
shall be conducted in accordance to the territorial integrity of the country—
such was negated by the provision on association incorporated in the MOA-
AD. Apart from this, the suspensive clause was also held invalid because of the
delegated power to the GRP Peace panel to advance peace talks even if it will
require new legislation or even constitutional amendments. The legality of the
suspensive clause hence hinges on the query whether the President can
exercise such power as delegated by EO No.3 to the GRP Peace Panel. Well
settled is the rule that the President cannot delegate a power that she herself
does not possess. The power of the President to conduct peace negotiations is
not explicitly mentioned in the Constitution but is rather implied from her
powers as Chief Executive and Commander-in-chief. As Chief Executive, the
President has the general responsibility to promote public peace, and as
Commander-in-Chief, she has the more specific duty to prevent and suppress
rebellion and lawless violence.
As such, the President is given the leeway to explore, in the course of peace
negotiations, solutions that may require changes to the Constitution for their
implementation. At all event, the president may not, of course, unilaterally
implement the solutions that she considers viable; but she may not be
prevented from submitting them as recommendations to Congress, which
could then, if it is minded, act upon them pursuant to the legal procedures for
constitutional amendment and revision.
While the President does not possess constituent powers - as those powers
may be exercised only by Congress, a Constitutional Convention, or the people
through initiative and referendum - she may submit proposals for
constitutional change to Congress in a manner that does not involve the
arrogation of constituent powers. Clearly, the principle may be inferred that
the President - in the course of conducting peace negotiations - may validly
consider implementing even those policies that require changes to the
Constitution, but she may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of that body were
assumed as a certainty. The President’s power is limited only to the
preservation and defense of the Constitution but not changing the same but
simply recommending proposed amendments or revisions.
o The Court ruled that the suspensive clause is not a suspensive condition
but is a term because it is not a question of whether the necessary changes to
the legal framework will take effect; but, when. Hence, the stipulation is
mandatory for the GRP to effect the changes to the legal framework –which
changes would include constitutional amendments. Simply put, the
suspensive clause is inconsistent with the limits of the President's authority to
propose constitutional amendments, it being a virtual guarantee that the
 Constitution and the laws of the Republic of the Philippines will certainly be
adjusted to conform to all the "consensus points" found in the MOA-AD.
Hence, it must be struck down as unconstitutional.
• On the concept underlying the MOA-AD.
While the MOA-AD would not amount to an international agreement or
unilateral declaration binding on the Philippines under international law,
respondents' act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective. The MOA-
AD not being a document that can bind the Philippines under international
law notwithstanding, respondents' almost consummated act of guaranteeing
amendments to the legal framework is, by itself, sufficient to constitute grave
abuse of discretion. The grave abuse lies not in the fact that they considered,
as a solution to the Moro Problem, the creation of a state within a state, but in
their brazen willingness to guarantee that Congress and the sovereign Filipino
people would give their imprimatur to their solution. Upholding such an act
would amount to authorizing a usurpation of the constituent powers vested
only in Congress, a Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the Executive can
ensure the outcome of the amendment process is through an undue influence
or interference with that process.
7.
China National Machinery v. Santamaria
Facts: On 14 September 2002, petitioner China National Machinery &
Equipment Corp. (Group) (CNMEG), represented by its chairperson, Ren
Hongbin, entered into a Memorandum of Understanding with the North Luzon
Railways Corporation (Northrail), represented by its president, Jose L. Cortes,
Jr. for the conduct of a feasibility study on a possible railway line from Manila
to San Fernando, La Union (the Northrail Project).
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the
Department of Finance of the Philippines (DOF) entered into a Memorandum
of Understanding (Aug 30 MOU), wherein China agreed to extend Preferential
Buyer’s Credit to the Philippine government to finance the Northrail Project. 3
The Chinese government designated EXIM Bank as the lender, while the
Philippine government named the DOF as the borrower. Under the Aug 30
MOU, EXIM Bank agreed to extend an amount not exceeding USD
400,000,000 in favor of the DOF, payable in 20 years, with a 5-year grace
period, and at the rate of 3% per annum.
On 1 October 2003, the Chinese Ambassador to the Philippines, Wang
Chungui (Amb. Wang), wrote a letter to DOF Secretary Jose Isidro Camacho
(Sec. Camacho) informing him of CNMEG’s designation as the Prime
Contractor for the Northrail Project.
On 30 December 2003, Northrail and CNMEG executed a Contract Agreement
for the construction of Section I, Phase I of the North Luzon Railway System
from Caloocan to Malolos on a turnkey basis (the Contract Agreement). 7 The
contract price for the Northrail Project was pegged at USD 421,050,000.
On 26 February 2004, the Philippine government and EXIM Bank entered into
a counterpart financial agreement – Buyer Credit Loan Agreement No. BLA
04055 (the Loan Agreement). In the Loan Agreement, EXIM Bank agreed to
extend Preferential Buyer’s Credit in the amount of USD 400,000,000 in favor
of the Philippine government in order to finance the construction of Phase I of
the Northrail Project.
On 13 February 2006, respondents filed a Complaint for Annulment of
Contract and Injunction with Urgent Motion for Summary Hearing to
Determine the Existence of Facts and Circumstances Justifying the Issuance of
Writs of Preliminary Prohibitory and Mandatory Injunction and/or TRO against
CNMEG, the Office of the Executive Secretary, the DOF, the Department of
Budget and Management, the National Economic Development Authority and
Northrail. The case was filed before the Regional Trial Court, National Capital
Judicial Region, Makati City, Branch 145 (RTC Br. 145). In the Complaint,
respondents alleged that the Contract Agreement and the Loan Agreement
were void for being contrary to (a) the Constitution; (b) Republic Act No. 9184
(R.A. No. 9184), otherwise known as the Government Procurement Reform
Act; (c) Presidential Decree No. 1445, otherwise known as the Government
Auditing Code; and (d) Executive Order No. 292, otherwise known as the
Administrative Code.
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEG’s
Motion to Dismiss and setting the case for summary hearing to determine
whether the injunctive reliefs prayed for should be issued. CNMEG then filed a
Motion for Reconsideration, which was denied by the trial court in an Order
dated 10 March 2008. Thus, CNMEG filed before the CA a Petition for
Certiorari with Prayer for the Issuance of TRO and/or Writ of Preliminary
Injunction dated 4 April 2008.
the appellate court dismissed the Petition for Certiorari. Subsequently, CNMEG
filed a Motion for Reconsideration, which was denied by the CA in a Resolution
dated 5 December 2008.
Petitioners Argument: Petitioner claims that the EXIM Bank extended financial
assistance to Northrail because the bank was mandated by the Chinese
government, and not because of any motivation to do business in the
Philippines, it is clear from the foregoing provisions that the Northrail Project
was a purely commercial transaction.
Respondents Argument: respondents alleged that the Contract Agreement
and the Loan Agreement were void for being contrary to (a) the Constitution;
(b) Republic Act No. 9184 (R.A. No. 9184), otherwise known as the
Government Procurement Reform Act; (c) Presidential Decree No. 1445,
otherwise known as the Government Auditing Code; and (d) Executive Order
No. 292, otherwise known as the Administrative Code.
Issues: Whether or not petitioner CNMEG is an agent of the sovereign
People’s Republic of China.
Whether or not the Northrail contracts are products of an executive
agreement between two sovereign states.
Ruling: The instant Petition is DENIED. Petitioner China National Machinery &
Equipment Corp. (Group) is not entitled to immunity from suit, and the Contract
Agreement is not an executive agreement. CNMEG’s prayer for the issuance of a
TRO and/or Writ of Preliminary Injunction is DENIED for being moot and
academic.
The Court explained the doctrine of sovereign immunity in Holy See v.
Rosario, to wit:
There are two conflicting concepts of sovereign immunity, each widely held
and firmly established. According to the classical or absolute theory, a
sovereign cannot, without its consent, be made a respondent in the courts
of another sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to public acts or
acts jure imperii of a state, but not with regard to private acts or acts jure
gestionis. (Emphasis supplied; citations omitted.)
As it stands now, the application of the doctrine of immunity from suit has
been restricted to sovereign or governmental activities (jure imperii). The
mantle of state immunity cannot be extended to commercial, private and
proprietary acts (jure gestionis).
Since the Philippines adheres to the restrictive theory, it is crucial to
ascertain the legal nature of the act involved – whether the entity claiming
immunity performs governmental, as opposed to proprietary, functions. As
held in United States of America v. Ruiz
Admittedly, the Loan Agreement was entered into between EXIM Bank
and the Philippine government, while the Contract Agreement was between
Northrail and CNMEG. Although the Contract Agreement is silent on the
classification of the legal nature of the transaction, the foregoing provisions of
the Loan Agreement, which is an inextricable part of the entire undertaking,
nonetheless reveal the intention of the parties to the Northrail Project to
classify the whole venture as commercial or proprietary in character.
Thus, piecing together the content and tenor of the Contract
Agreement, the Memorandum of Understanding dated 14 September 2002,
Amb. Wang’s letter dated 1 October 2003, and the Loan Agreement would
reveal the desire of CNMEG to construct the Luzon Railways in pursuit of a
purely commercial activity performed in the ordinary course of its business.
8. DANUBE DAM CASE
Damming the Danube: The International Court of Justice and the Gabcíkovo-
Nagymaros Project (Hungary v Slovakia)
ADRIANA KOE[*]
1. Introduction
The damming of the Danube gives rise to a number of issues in international
law. The complex factual scenario of the Case concerning the Gabcíkovo-
Nagymaros Project[1] entailed questions of state succession, state
responsibility and ecological necessity, interpretation of treaties, the role of
newly emerging norms of international environmental law and its intricate
relationship with international watercourse law. Whilst the judgment of the
Court assessed Hungary’s claim that a state of ecological necessity had arisen
in respect of the Danube River, it adopted a legalistic approach that effectively
avoided a determination on the effect of environmental norms upon the
actions of states. Delivering a separate opinion, Vice-President Weeramantry
gave credence to the principle of sustainable development, considered for the
first time before the International Court of Justice.
2. Background Facts
The Danube River is the second longest river in Europe and forms part of the
contiguous territorial boundary between Hungary and Slovakia, neighbouring
riparian states. The Treaty Between the Hungarian People’s Republic and the
Czechoslovak Socialist Republic concerning the Construction and Operation of
the Gabcíkovo-Nagymaros System of Locks was concluded on 16 September
1977.[2] The Treaty addressed broad utilisation of the natural resources of the
Danube between Bratislava and Budapest, representing two hundred of the
River’s two thousand eight hundred and sixty kilometres. In its Preamble, the
Treaty sets objectives of mutual management in respect of “development of
water resources, energy, transport, agriculture and other sectors of the
national economy of the Contracting Parties”.[3]
A Joint Contractual Plan stipulated that the Project constituted an integrated
joint scheme, with both parties enjoying equality of energy rights and
ownership commensurate with equality of financing, construction and
operation.[4] Article 1 described the Project as a “single and indivisible
operational system of works”.[5] Construction work began in 1978 and
continued amidst profound political and economic changes across Central
Europe.
Intense criticism of the construction at Nagymaros centred upon
endangerment of the environment and uncertainty of continued economic
viability. This growing opposition engendered political pressures upon the
Hungarian Government. After initiating two Protocols, primarily concerned
with timing of construction,[6] Hungary suspended works at Nagymaros on 21
July 1989 pending further environmental studies.
Czechoslovakia protested Hungary’s suspension of works. Negotiations took
place between the parties and Czechoslovakia began investigating alternative
solutions. “Variant C”, one of these alternatives, involved a unilateral diversion
of the Danube onto Czechoslovakian territory ten kilometres upstream from
Dunakiliti. Negotiations had been of no avail when Czechoslovakia began work
on Variant C in November 1991. On 19 May 1992 Hungary purported to
terminate the 1977 Treaty by way of a Note Verbale transmitted to the
Czechoslovak Government. On 15 October 1992 Czechoslovakia initiated
closing the Danube and proceeded with damming the river.
Slovakia was formed upon the dissolution of Czechoslovakia on 31 December
1992. Hungary and Slovakia have enjoyed diplomatic relations since 1 January
1993.[7]
3. The Decision of the International Court of Justice
The jurisdiction of the International Court of Justice was founded by the
Special Agreement for Submission to the International Court of Justice of the
Differences Between the Republic of Hungary and the Slovak Republic
concerning the Gabcíkovo-Nagymaros Project.[8] A two-tiered judgment was
delivered on 25 September 1997. The judgment of the Court was declaratory
in relation to past conduct and prescriptive as to future conduct between
Hungary and Slovakia.[9] A number of Declarations, Separate Opinions and
Dissenting Opinions were attached to the judgment of the Court, illustrating
the complex maze of legal issues raised by the factual matrix of the
Gabcíkovo-Nagymaros Case.[10]
A. Succession
The Special Agreement between the Parties stated:
the Slovak Republic is one of the two successor States of the Czech and Slovak
Federal Republic and the sole successor State in respect of rights and
obligations relating to the Gabcíkovo-Nagymaros Project.[11]
What was the effect of Slovakia becoming an independent State on 1 January
1993? Did Slovakia succeed to the rights and obligations conferred by the
1977 Treaty? Despite the seemingly straightforward terms of the Special
Agreement, Hungary sought to distinguish succession to property rights from
succession to the Treaty itself. Hungary’s objection to Slovakia’s succession
stemmed from an absence of consent, asserting that there was never an
agreement to accept Slovakia as a successor to the 1977 Treaty. The disputed
treaty was not included on a list of bilateral treaties to remain in force,
exchanged between the States upon Slovakia’s succession.
Article 34 of the Vienna Convention on the Succession of States in respect of
Treaties,[12] based upon the principle of continuity, prescribes automatic
succession upon the dismemberment of States. Hungary protested the
application of Article 34 on the basis that it had never signed or ratified the
Succession Convention, and that the principle of continuity did not represent a
general principle of international law.[13] Slovakia contended that Article 34
codified a customary norm. The Court did not find it necessary to determine
the status of the principle of continuity in international law, turning instead to
characterisation of the 1977 Treaty under Article 12 of the Succession
Convention.[14] Article 12 distinguishes rights that “attach to territory”, rights
of this nature remaining unaffected by succession. Article 12 applies to
Treaties themselves as well as the rights and obligations that arise thereunder.
[15] The Court accepted Slovakia’s proposition that Article 12 was reflective of
customary international law. Hungary attempted to characterise the 1977
Treaty as a commercial joint investment, so that rights created did not attach
to territory and thus could not fall within the parameters of Article 12. Whilst
the Court recognised that the Treaty could be characterised as a joint
investment, more importantly it established an alternative navigational regime
for an international watercourse[16] and affected the interests of other
riparian States and users of the river.[17] Treaties concerning water rights or
navigational interests are commonly held to be territorial in nature.[18]
Twelve of the fifteen Members of the Court found that the 1977 Treaty
continued in force as between Hungary and Slovakia.
B. The Law of Treaties
The Vienna Convention on the Law of Treaties (hereinafter VCLT)[19] had a
limited application to the Gabcíkovo-Nagymaros dispute. Both Parties
acknowledged that only those provisions that codified pre-existing customary
international law could be applied to the 1977 Treaty, concluded before the
VCLT entered into force as between the Parties.[20] The Court identified
Articles 60, 61 and 62, concerning the suspension and termination of treaties,
as codification of customary norms.[21]
(i) “Ecological Necessity” and the Law of State Responsibility
In their written pleadings and oral submissions, both Hungary and Slovakia
presented extensive evidence concerning the relationship between the Law of
Treaties and the Law of State Responsibility. The Court resolved this interface
by simply stating:
when a State has committed an internationally wrongful act, its international
responsibility is likely to be involved whatever the nature of the obligation it
has failed to respect.[22]
Hungary did not dispute the unlawfulness of its suspension and eventual
abandonment of works at Nagymaros, submitting itself to the ambit of the
Law of State Responsibility by relying upon a state of ecological necessity to
preclude the wrongfulness of its actions. According to its environmental
surveys, the works at Gabcíkovo and Dunakiliti would cause artificial floods
and silting, the extinction of fluvial fauna and flora, deterioration of water
quality and presented a risk of eutrophication of surface waters. Similarly, the
structures at Nagymaros were expected to cause erosion of the river bed
downstream, shrinking of the filter layer and sediment deposits in river
pockets, silting, diminished water supply to Budapest and pose a threat to
aquatic habitats.[23]
The International Law Commission’s Draft Articles on the International
Responsibility of States defines the relevant criteria to invoke a “state of
necessity”.[24] Article 33(1)(a) requires that a state of necessity will only
preclude the wrongfulness of an act where it is the only means of
safeguarding an essential interest against grave and imminent peril. All three
limbs of this test must be satisfied.[25] Furthermore, under Article 33(1)(b),
the act committed must not have seriously impaired the essential interest of a
State towards whom an obligation was owed.[26] The Court found that Article
33 was representative of customary international law on state responsibility.
[27] Whilst Hungary’s quest for ecological preservation was considered an
“essential interest”, its mere apprehension of environmental peril failed to
satisfy the “grave and imminent” component of an act committed in a state of
necessity.[28] In this context, imminence is synonymous with immediacy or
proximity whilst peril is equated to risk. It is important to note that the Court
did not exclude ecological threats from the corpus of dangers that may
suitably be characterised as “grave and imminent”. Long term realisation of
environmental perils would satisfy the criterion if accompanied by definitive
certainty.[29] On the facts before it, the Court was not convinced that an
imminent peril existed in 1989 when Hungary first suspended work on the
Project.[30]
The judgment of the Court must be faulted for expressly declining to consider
and weigh scientific evidence presented by both Parties. With respect, how
did their Excellencies draw a determination on the factual risk inherent with
the Project, concluding that environmental peril was insufficiently
substantiated by scientific evidence so as to eliminate uncertainty of outcome,
without evaluating the data and research findings describing such peril?[31]
Such an assessment, or failure thereof, failed to respect the precautionary
principle in international environmental law and neglected consideration of
ramifications that present uncertainties may have upon the future.[32] The
very nature of ecological risk is that damage may take years, even decades, to
manifest, at which time large environmental, societal and economic costs
must be sustained. Bearing in mind that ecological damage is often
irreversible, the majority judgment’s heedless approach on this point of law is
highly unsatisfactory, with Stec and Eckstein observing that “[p]rinciples of
prevention and precaution are lost”.[33]
Even if a serious threat of imminent peril was established, the Court
postulated that Hungary had available to it means other than suspension of
works in order to resolve the problem.[34] Firstly, Hungary was in a position to
control (at least partially) the distribution of water at Dunakiliti, so as to
prevent artificial flooding and some of the other risks complained of. Secondly,
at Nagymaros, Hungary may have discharged gravel into the downstream bed
to counter erosion and processed drinking water intended for consumption at
Budapest. The increased costs of the Project associated with these techniques
are not pertinent to the question of whether a state of necessity subsisted.
[35] At any rate, Hungary had by its own acts or omissions helped to bring
about the state of necessity, if there was one, thereby precluding the
application of Draft Article 33.
This remarkably high threshold test for establishing a state of ecological
necessity under the law of state responsibility secures the undesirable result
whereby States will find it nearly impossible to legitimately cease construction
on any project, established under a treaty, on environmental grounds.
(ii) Variant C and the Principle of Approximate Application
Variant C represents a unilateral measure invoked by Czechoslovakia in face of
Hungarian refusal to resume work on the Project and follows the
indeterminate outcome of intergovernmental negotiations. Work on Variant C
began in November 1991 with the construction of a dam at Cunovo on
Czechoslovakian territory. Further negotiations between the Parties were
hampered by Czechoslovakia’s refusal to stop work on Variant C until a
tripartite expert committee was able to confirm that its negative
environmental impacts outweighed its potential benefits and Hungary’s
refusal to begin negotiations unless Variant C was suspended. Czechoslovakia
intensified work on Variant C.
The Commission of European Communities initiated trilateral negotiations in
October 1992. By this time, the first phase of Variant C had been completed,
the river bed had been reinforced and the principal channel had been
narrowed. Closure of the river bed and construction of the dam continued.
Slovakia maintained that the implementation of Variant C was not an
internationally wrongful act under the principle of approximate application.
According to Slovakia, Variant C represented the only possibility of fulfilling
the purposes of the 1977 Treaty, and the continuing obligation to execute it in
good faith. Hungary argued that Variant C not only materially breached
Articles 15, 16, 19 and 20 of the 1977 Treaty but also breached obligations
under the Convention on the Regulation of Water Management Issues of
Boundary Waters.[36] Article 15 provided for preservation of water quality,
Article 16 dealt with maintenance of the river bed, Article 19 required the
protection of nature and Article 20 sought to protect fishing interests.
The principle of approximate application was considered by Judge Sir Hersch
Lauterpacht in Admissibility of Hearings of Petitioners by the Committee on
South West Africa:
It is a sound principle of law that whenever a legal instrument of continuing
validity cannot be applied literally owing to the conduct of one of the parties,
it must, without allowing that party to take advantage of its own conduct, be
applied in a way approximating most closely its primary object. To do that is to
interpret and give effect to the instrument – not to change it.[37]
The 1977 Treaty and associated Joint Contractual Plan had as their primary
object the development of a single and indivisible system of locks, with
Articles 8 and 10 providing for joint ownership of structures regardless of
territorial location. The Project was to be coordinated as a single unit. The
Court held that, by definition, these objectives could not be achieved via
unilateral action.[38] Thus Variant C failed to satisfy the conditions set forth by
Judge Lauterpacht, releasing the Court from determining whether the
principle of approximate application is or is not a general principle of
international law.
Although Slovakia could not rely upon the principle of approximate application
to preclude the wrongfulness of its action insofar as they violated express
provisions of the 1977 Treaty, a narrow majority of the Court distinguished
the application of Variant C in 1991 from that in 1992. Whilst the initial work
at Cunovo was necessary for the implementation of Variant C, it could easily
have been abandoned and as such assumed the character of a precautionary
measure or an avenue of possible action pending negotiations. No wrongful
act had been committed until damming of the river began in 1992.[39] The
preparatory actions preceding a wrongful act are not to be confused with the
actual offence.[40] Thus Czechoslovakia was entitled to proceed to Variant C
in 1991 but committed an internationally wrongful act by extending its
operation to the damming of the Danube.[41]
(iii) Grounds for the Termination of a Treaty
On 19 May 1992 Hungary purported to terminate the 1977 Treaty as a
consequence of Czechoslovakia’s refusal to suspend work on Variant C during
the process of mediation. As the Treaty itself did not feature a clause
governing termination, Hungary proffered five arguments to validate its
actions: a state of necessity, supervening impossibility of performance,
fundamental change of circumstances, material breach and the emergence of
new norms of international environmental law. Slovakia contested each of
these bases.
The Court easily dismissed Hungary’s first claim, simply stating that a state of
necessity is not a ground for termination. Even if a state of necessity is
established, as soon as it ceases to exist treaty obligations automatically
revive.[42]
The doctrine of impossibility of performance is encapsulated in Article 61 of
the VCLT, which requires the “permanent disappearance or destruction of an
object indispensable for the execution of the treaty”. In this case, the legal
regime governing the Gabcíkovo-Nagymaros Project did not cease to exist.
Articles 15, 19 and 20 of the 1977 Treaty provided the means through which
works could be readjusted in accordance with economic and ecological
imperatives. Furthermore, Article 61(2) of the VCLT precludes application of
the doctrine where the impossibility complained of is the result of a breach by
the terminating Party. If the joint investment had been hampered to a point
where performance was impossible, it was a consequence of Hungary’s
abandonment of works.[43]
Article 62 of the VCLT codifies international law in respect of fundamental
change of circumstances and treaty relations. Hungary submitted that the
1977 Treaty was originally intended to be a vehicle for socialist integration.
Fundamental changes cited were the displacement of a “single and indivisible
operational system” by a unilateral scheme; the emergence of both States into
a market economy; the mutation of a framework treaty into an immutable
norm; and the transformation of a treaty consistent with environmental
protection into “a prescription for environmental disaster”. The Court held
that although political changes and diminished economic viability were
relevant to the conclusion of a treaty, they were not so closely linked with the
object and purpose of the 1977 Treaty so as to constitute an essential basis of
the consent of the Parties.[44] New developments in the efficacy of
environmental knowledge were not unforeseen by the Treaty and cannot be
said to represent a fundamental change.[45] The Court did not consider
whether the emergence of new environmental norms would catalyse the
application of Article 62 in a situation where the terms of a treaty stand
abhorrent to new norms.
Hungary claimed that Variant C materially breached Articles 15, 19 and 20 of
the 1977 Treaty, concerning the protection of water quality, the preservation
of nature and guardianship of fishing interests. Article 60(3) of the VCLT
recognises material breach of a treaty as a ground for termination on the part
of the injured State. Extending its reasoning on the principle of approximate
application, the Court held that a material breach only occurred upon the
diversion of the Danube. As Czechoslovakia dammed the Danube after 19 May
1992, Hungary’s purported termination was premature and thus invalid.
As its final basis for the justification of termination, Hungary advocated that,
pursuant to the precautionary principle in environmental law, the obligation
not to cause substantive damage to the territory of another State had evolved
into an obligation erga omnes (sic utere tuo ut alienum non laedas). Slovakia
countered this argument with the claim that there had been no intervening
developments in international environmental law that gave rise to jus cogens
norms that would override provisions of the 1977 Treaty. The Court avoided
consideration of these propositions, concluding instead that “[t]hese new
concerns have enhanced the relevance of Articles 15, 19 and 20”.[46] Given
that international environmental law is in its formative stages,[47] it is
unfortunate that the International Court of Justice did not grasp at this
opportunity to discuss its role in the governance of relations between States.
To that end, the Court may have clarified the controversial application of the
sic utere principle to modify notions of unrestricted sovereignty in the Trail
Smelter arbitration.[48]
C. Countermeasures and Damages
Both parties claimed reparation and restitutio in integrum for injuries
sustained. Hungary’s claim lay in respect of damage to the environment whilst
Slovakia sought compensation for the deleterious consequences of Hungary’s
failure to comply with the 1977 Treaty.[49]
Slovakia attempted to rely upon a general principle of international law that a
party injured by the non-performance of another treaty party must seek to
mitigate the damage that it suffered. The Court dismissed Slovakia’s
proposition, reasoning that such a principle would preclude an injured State
who had not taken measures to limit damage sustained from claiming
compensation.[50] Slovakia also attempted to establish that Variant C was a
justified countermeasure to Hungary’s suspension and subsequent
termination of its Treaty obligations. The requisite elements of a justified
countermeasure are set forth in Military and Paramilitary Activities in and
Against Nicaragua.[51] Although Variant C was instituted in response to an
internationally wrongful act directed against Czechoslovakia, and Hungary was
called upon to discontinue its wrongful conduct, the effect of Variant C was
not commensurate with the injury sustained. The majority of the Court held
that the unilateral assumption of 80–90 per cent of the waters of the Danube
lacked proportionality, usurping Hungary’s right to an equitable and
reasonable share of the international watercourse.[52]
As both Hungary and Slovakia are liable for the payment of compensation for
damage caused by internationally wrongful acts, the Court observes that both
Parties may consider renouncing or cancelling all financial claims and
counterclaims in the framework of an overall settlement.[53]
D. The Prescriptive Tier: Future Relations and the Requirement of Good Faith
By the time the dispute was brought before the International Court of Justice,
the Gabcíkovo Power Plant had been operational for nearly five years, fed by a
reservoir at Cunovo (not Dunakiliti) and operated at run of the river mode, not
in the peak hour mode originally envisaged. The works at Nagymaros had not
been built, and there was no longer any necessity for their construction. In
considering remedies available to it, the Court also recalled the other
objectives of the 1977 Treaty (none of which were of a lesser importance than
the production of energy): flood control, improved navigability of the Danube,
regulation of discharge, and protection of the natural environment. Given
these facts, the Court concluded that it would be out of touch with reality to
order reinstatement of the works according to the Joint Contractual Plan and
the demolition of structures at Cunovo. Against the backdrop of constant
negotiations and alterations to the original plan, the Court felt that the explicit
terms of the 1977 Treaty were acknowledged by the Parties to be negotiable
in practice.[54]
Under Article 5 of the Special Agreement, Hungary and Slovakia undertook to
enter into negotiations on the modalities for execution of the judgment of the
Court. The doctrine of pacta sunt servanda, codified by Article 26 of the VCLT,
states that every treaty in force binds the parties to it and must be performed
in good faith. The Court describes this requirement as an obligation to apply
the 1977 Treaty in a “reasonable” manner so that its purposes may be
realised. Such good faith may be evidenced by willingness to negotiate
without the imposition of preconditions, or the ready acceptance of third
party assistance.[55] In a protracted attempt to integrate environmental
concerns into its judgment, the Court directed the parties to derive a
satisfactory solution in regards to the volume of water to be released into the
old river bed and side arms, observing that:
in the field of environmental protection, vigilance and prevention are required
on account of the often irreversible character of damage to the environment
[mindful] of the limitations inherent in the very mechanism of reparation of
this type of damage.[56]
The Court subsequently suggested that the works at Cunovo become a jointly
operated unit, replacing the originally proposed dam at Dunakiliti. Variant C
could be made to operate in a manner that conforms to the 1977 Treaty,
transforming it from a de facto status to part of the treaty-based water
management regime.[57]

4. Environmental Issues Raised
Principles of environmental law were clearly incorporated by Articles 15, 19
and 20 of the 1977 Treaty, and were raised by both parties before the Court.
Despite comprehensive coverage of the Law of Treaties and the Law of State
Responsibility, the judgment of the Court evinced comparatively little
deliberation of the environmental issues identified. Vice-President
Weeramantry delivered a separate opinion, focusing upon the principle of
sustainable development.[58] Despite concluding in favour of each of the
Court’s findings, His Excellency approached the decision by assessing the
status of sustainable development, applying the principle of continuing
environmental impact assessment, and questioning the handling of erga
omnes obligations in inter partes judicial procedure.[59]
Adopting an anthropological and philosophical approach, equating
environmental rights with human rights,[60] Vice-President Weeramantry
acknowledged that:
This case offers a unique opportunity for the application of [sustainable
development], for it arises from a Treaty which had development as its
objective, and has been brought to a standstill over arguments concerning
environmental considerations.[61]
Sustainable development offers itself as an instrument to balance the
competing demands of Slovakia and Hungary. Slovakia has traditionally
experienced a shortage of electricity, and its development is dependent upon
the flow of the Danube for power generation. Hungary, on the other hand,
seeks to protect the ecological resources that it sees as being threatened by
the operation of the Gabcíkovo power plant. Vice-President Weeramantry
traces the historical development of the concept and its endorsement by
various international instruments such as the United Nations Convention on
Biological Diversity.[62] Further evidence of world-wide acceptance of the
principle is presented, illustrating opinio juris and state practice, before
concluding that sustainable development reflects “the nature of customary
law”.[63] His Excellency draws upon insights from other cultures in order to
aid interpretation and application of a principle in its formative stages, a
method charted by Grotius.[64] A detailed assessment of ancient irrigation-
based civilisations reveals environmental principles at play in the harnessing
of streams and rivers, although not necessarily involving transboundary
considerations. Reference is made to Sri Lanka’s integration of development
with the preservation of natural surroundings, the practice of the Sonjo and
Chagga tribes of Tanzania, ancient Inca civilisation and China’s development of
the Mo River. An examination of Buddhist theology and Islamic law supports
the ‘first principle’ of modern environmental law, that of trusteeship of the
earth’s resources.[65]
How does the balancing criterion of sustainable development operate in
assessing the competing interests of Hungary and Slovakia? Surprisingly, after
this comprehensive appraisal of the status of the principle of sustainable
development in international law, Vice-President Weeramantry omits to apply
it to the facts of the dispute. Which aspects (if any) of environmental concern
have to be sacrificed in favour of development of the Danube to facilitate
power generation? Is there a hierarchy of concerns to be applied? At what
point does construction in the name of development become non-acceptable
to environmental law? Can the flooding of an alluvial plain or the diversion of
a river be defended by the criterion of development? His Excellency expressly
adopts a utilitarian approach to development, measuring its value as the “sum
total of human happiness and welfare”.[66] Does this measure also apply to
evaluating the net worth of ecology? How is “human happiness” measured?
Whilst Vice-President Weeramantry must be congratulated for his insightful
investigation into the foundations of the concept of sustainable development,
a significant void appears between this theoretical discourse and the
conclusion that a joint operational regime must be established between
Hungary and Slovakia.[67]
The judgment of the Court paid “lip-service”[68] to sustainable development,
restraining from ascribing it a status in international law beyond reference to it
as a concept, “as a value or objective that the parties were legally obliged to
take into account in their decisions on development projects”.[69] Boyle
contemplates one interpretation of the judgment as being limited to decision
processes, with the requirement of sustainable development removed from
substantive outcomes.[70] Could such decision processes be reviewed? Who
would have the authority to review decision processes in respect of
developmental initiatives? If sustainable development becomes recognised as
an obligation erga omnes, who would have standing as an Applicant? Would
individual decision-makers be held accountable or would vicarious liability to
institutions or States apply? Boyle contends that a specialised tribunal may be
required to address questions of sustainable development:
The factors involved in determining what is sustainable are much broader and
more subjective than the factors at issue in questions of equitable utilisation.
Weighing the interests of inter- and intra- generational equity, the integration
of environmental protection and development, and the sustainable utilisation
of resources, inter alia, would stretch the boundaries of justiciability, even in
national courts, let alone, in the ICJ.[71]
Nonetheless, the International Court of Justice did recognise that future
operation of any developmental regime on the Danube must be governed by
the concept of continuing environmental impact assessment, established as a
rule of international law in Legality of the Threat or Use of Nuclear Weapons.
[72] In practice, its roots may be traced to Trail Smelter and the requirement
of continuous monitoring of subsequent performance.[73] In the Gabcíkovo-
Nagymaros Case, continuing environmental impact assessment is relevant to
the court order for a joint operational regime between the parties and
represents an additional safeguard for Hungary’s (allegedly) threatened
environmental interests.[74] The principle of contemporaneity applies as the
standard by which continuing assessment is to be made.[75] Despite this
outlook on environmental monitoring, it is unfortunate that the Court did not
grasp the opportunity to consider the actual legal consequences (if any) of
environmental impact assessments (EIA). Assuming legitimacy, scientific and
technical accuracy, can an EIA be applied in a manner that binds the actions of
states? What if the EIA has been commissioned by a third party state or
organisation and purports to affect the operation of a bilateral treaty? What
are the consequences of failing to conduct a true and representative EIA prior
to the commencement of a project? Even Vice-President Weeramantry’s
eloquent judgment does not turn to addressing any of these questions, His
Excellency confining his observations on EIA to recognising it as a “specific
application of the general principle of caution”.[76]
The interface between the law of treaties and international environmental law
remains less than clear. The 1977 Treaty expressly provided that its operation
was subject to evolving and emergent norms of environmental law. Whilst
such a provision has as a necessary corollary renegotiating the execution of
treaty objectives, implying a requirement of consistent environmental
monitoring,[77] would the same resultant obligation ensue in the application
of a treaty that remained silent on environmental concerns? The judgment of
the Court reaffirmed the integrity of pacta sunt servanda, upholding the
sanctity of treaties.[78] Bourne contemplates that the status quo protection of
pacta sunt servanda will only extend to situations where detrimental
environmental effects were reasonably foreseeable at the time at which the
relevant treaty was concluded.[79] In cases where devastation of the
environment was not reasonably foreseeable, an obligation to renegotiate and
modify the treaty ensues, cognisant of newly acquired information.
5. International Watercourse Law
The factual matrix before the Court appeared to present a perfect opportunity
for the application of international watercourse law and associated principles
of international environmental law.[80] The judgment of the Court made brief
mention of the Convention on the Non-Navigational Uses of International
Watercourses[81] in considering the legal consequence of Czechoslovakia
appropriating 80–90 per cent of the waters of the Danube for its exclusive use
and sole benefit before returning it to the main bed of the river. The Court
concluded that although Hungary violated the 1977 Treaty provisions “that
cannot mean that Hungary forfeited its basic right to an equitable and
reasonable sharing of the resources of an international watercourse.”[82]
The principle of reasonable and equitable utilisation (REU) appears in Article 5
of the Watercourse Convention and has itself been the subject of great
debate.[83] The Watercourse Convention has not yet entered into force and
neither Hungary nor Slovakia are signatories to the convention. Given this,
does the Court’s reference to a “basic right” of REU, seemingly without the
need for justification, suggest that any remaining controversy over the
concept has dissipated?[84] The status of REU independent of the
Watercourse Convention and the question of whether it constitutes a
customary norm in international law was unclear prior to the Gabcíkovo-
Nagymaros Case.[85] Has the Court provided an affirmative answer by
invocation of the principle in its judgment? In the absence of evidentiary
support and in light of the brevity with which the Court addressed REU, it is
unlikely that the requisite elements of customary laws enunciated in the
Asylum Case[86] and North Sea Continental Shelf cases[87] have been
satisfied. This pithiness stands in stark contrast to Vice-President
Weeramantry’s extensive treatment of the comparatively undisputed principle
of sustainable development. Similarly to sustainable development, it is the
actual meaning and composition of REU that attracts the greatest controversy.
The principle of REU may be supported by cases such as Territorial Jurisdiction
of the International Commission of the River Oder,[88] Diversion of Water
from the River Meuse,[89] Lac Lanoux Arbitration,[90] and Helmand River
Delta.91 Surprisingly, only Judge ad hoc Skubiszewski sought to incorporate
these authorities in his dissenting opinion, an application of REU to justify the
continuing implementation of Variant C.[92]
Even if REU was a customary norm and the provisions of the Watercourse
Convention applied as between the Parties, its operation may still be disputed.
Preexisting agreements, such as the 1977 Treaty, pose a problem for
adherence to the Watercourse Convention’s provisions. Unless REU has
entered into the corpus of jus cogens rules or obligations erga omnes, states
are free to mutually ‘contract’ out of norms of general international law.[93] In
his separate opinion, Judge Abdul Koroma equated the 1977 Treaty to a
contract between Hungary and Slovakia, with the effect of augmenting any
right to REU:
While it is acknowledged that the waters of rivers must not be used in such a
way as to cause injury to other States and in the absence of any settled rules
an equitable solution must be sought (case of the Diversion of Water from the
Meuse, Judgment 1937, PCIJ Series A/B No 70), this rule applies where a
treaty is absent.[94]
Article 14(2) of the 1977 Treaty operates in lieu of a right to REU, providing
that both parties may withdraw water from the Bratislava-Budapest section of
the Danube without prior notice for use in relation to the objectives of the
Joint Contractual Plan. This excess withdrawal was contemplated by the
parties, and was to be accompanied by compensation in the form of an
increased share of electric power. Judge Abdul Koroma concluded that under
Article 14(2) Hungary had agreed to the diversion of the Danube within the
context of the project, a lex specialis.[95] Given the unexplained application
and treatment of REU in the judgment of the Court, with due respect, Judge
Abdul Koroma’s execution of the principle should be favoured as a cogent and
theoretically justifiable interpretation.
Related to the issue of standing and conceiving sustainable development as an
obligation erga omnes, a question that remains unresolved by the Gabcíkovo-
Nagymaros Case is whether an activity can be acceptable if it is equitable as
between two parties in a bilateral context and yet unsustainable? The
preferable view envisions sustainable development as the ultimate objective,
with REU representing a means to achieve it in the context of international
watercourses.[96] This view is supported by the nature of international
watercourses and their disregard for political borders – an equitable use of an
international watercourse respects the rights of all riparian states, not just
those parties to a particular treaty. To that end, equity and sustainability lie
hand in hand as complementary partners.
6. Conclusion
Water should ideally be a catalyst for international cooperation rather than a
source of conflict.[97] Human water utilisation has increased by a factor of
thirty-five over the last three centuries, and continues to grow at a rate of four
to eight percent per annum.[98] Approximately two hundred and fifteen river
basins world-wide are shared by two or more states.[99] The possibility of
armed conflict over water disputes cannot be ignored, especially in regions
such as the Middle East, where over fifty percent of the population relies upon
water flowing from another state for their survival.[100]
In the Case Concerning the Gabcíkovo-Nagymaros Project the International
Court of Justice was presented with an opportunity to resolve questions
pertinent to international environmental law and international watercourse
law. It is unfortunate that the Court did not rise to this occasion, choosing
instead to promulgate a decision largely within the confines of the law of
treaties and the law of state responsibility.[101] Guidance as to the legal
implications of sustainable development, the role of precaution, scientific
evidence, environmental monitoring and environmental impact assessments
in regulating the rights and obligations of states had been eagerly anticipated.
Guidance as to the applicability of the Watercourse Convention as a
framework for regulating the relations of riparian States, and definition of
water sharing concepts, would have been welcomed by the international
community in the hope of achieving harmonious water utilisation.[102] A
clear indication of the state of the law may be an effective tool to minimise
the potential for disputes in the future.
Although the decision was disappointing, with academic commentators
labelling its treatment of environmental questions as “perfunctory at best”,
[103] “acrobatically avoid[ing]” substantive ecological considerations,[104]
exhibiting a “moderately humanistic-ecofriendly vision”,[105] it nonetheless
must be lauded for taking another small step in the gradual evolution of
environmental norms in the context of legal relations between states.
Although the International Court of Justice chose not to engage in judicial
activism, it charted a conservative path far distanced from “petrifying” the
law.[106] The judgment of the Court also drew significant conclusions in
respect of the law of treaties, the law of state responsibility and state
succession. Against the backdrop of environmental questions raised but not
addressed in Legality of the Threat or Use of Nuclear Weapons[107] and
Certain Phosphate Lands in Nauru,[108] it is evident that the International
Court of Justice has deliberately refrained from making a pronouncement on
the legal impact of ecological and environmental considerations on the rights
and obligations of states, as established under treaty law.
Initial claims that the judgment of the Court in the Case Concerning the
Gabcíkovo-Nagymaros Project succeeded in mediating a practical result,
delivering a justice mutually acceptable to both parties, may be premature.
[109] Burgeoning trepidation towards a joint operational regime in Hungary
manifested in an unexpected swing against the incumbent Government in
Parliamentary elections during May 1998.[110] A central policy platform of
the newly elected Government is to institute new proceedings against the
Gabcíkovo-Nagymaros Project at the Peace Palace in The Hague.[111] It is
hoped that the International Court of Justice will not shy away from any other
opportunity to rule upon the role of newly emerging environmental norms in
international law, and pass judgment upon whether international
environmental and watercourse law operates so as to bind the actions of
riparian states.
10.
THE PAQUETE HABANA CASE
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.
11. The Asylum Case (1950 icj 1)
Columbia granted asylum to a Peruvian, accused of taking part in a military
rebellion in Peru. Was Columbia entitled to make a unilateral and definitive
qualification of the offence (as a political offence) in a manner binding on Peru
and was Peru was under a legal obligation to provide safe passage for the
Peruvian to leave Peru?
Facts of the Case:
Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect
of the crime of military rebellion” which took place on October 3, 1949, in
Peru. 3 months after the rebellion, Torre fled to the Colombian Embassy in
Lima, Peru. The Colombian Ambassador confirmed that Torre was granted
diplomatic asylum in accordance with Article 2(2) of the Havana Convention
on Asylum of 1928 and requested safe passage for Torre to leave Peru.
Subsequently, the Ambassador also stated Colombia had qualified Torre as a
political refugee in accordance with Article 2 Montevideo Convention on
Political Asylum of 1933 (note the term refugee is not the same as the Refugee
Convention of 1951). Peru refused to accept the unilateral qualification and
refused to grant safe passage.
Questions before the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally
qualify the offence for the purpose of asylum under treaty law and
international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a
guarantee of safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of
1928 (hereinafter called the Havana Convention) when it granted asylum and
is the continued maintenance of asylum a violation of the treaty?
The Court’s Decision:
Relevant Findings of the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally
qualify the offence for the purpose of asylum under treaty law and
international law?
1. The court stated that in the normal course of granting diplomatic asylum a
diplomatic representative has the competence to make
a provisional qualification of the offence (for example, as a political offence)
and the territorial State has the right to give consent to this qualification. In
the Torre’s case, Colombia has asserted, as the State granting asylum, that it is
competent to qualify the nature of the offence in a unilateral and definitive
manner that is binding on Peru. The court had to decide if such a decision was
binding on Peru either because of treaty law (in particular the Havana
Convention of 1928 and the Montevideo Convention of 1933), other principles
of international law or by way of regional or local custom.
2. The court held that there was no expressed or implied right of unilateral
and definitive qualification of the State that grants asylum under the Havana
Convention or relevant principles of international law (p. 12, 13). The
Montevideo Convention of 1933, which accepts the right of unilateral
qualification, and on which Colombia relied to justify its unilateral
qualification, was not ratified by Peru. The Convention, per say, was not
binding on Peru and considering the low numbers of ratifications the
provisions of the latter Convention cannot be said to reflect customary
international law (p. 15).
3. Colombia also argued that regional or local customs support the
qualification. The court held that the burden of proof on the existence of an
alleged customary law rests with the party making the allegation:
“The Party which relies on a custom of this kind must prove that
this custom is established in such a manner that it has become
binding on the other Party… (that) it is in accordance with a (1)
constant and uniform usage (2) practiced by the States in
question, and that this usage is (3) the expression of a right
appertaining to the State granting asylum (Columbia) and (4) a
duty incumbent on the territorial State (in this case, Peru). This
follows from Article 38 of the Statute of the Court, which refers to
international custom “as evidence of a general practice accepted
as law(text in brackets added).”
4. The court held that Columbia did not establish the existence of a regional
custom because it failed to prove consistent and uniform usage of the alleged
custom by relevant States. The fluctuations and contradictions in State
practice did not allow for the uniform usage (see also Mendelson, 1948 and
see also Nicaragua case, p. 98, the legal impact of fluctuations of State
practice). The court also reiterated that the fact that a particular State practice
was followed because of political expediency and not because of a belief that
the said practice is binding on the State by way of a legal obligation (opinio
juris) is detrimental to the formation of a customary law (see North Sea
Continental Shelf Cases and Lotus Case for more on opinio juris):
“[T]he Colombian Government has referred to a large number of
particular cases in which diplomatic asylum was in fact granted
and respected. But it has not shown that the alleged rule of
unilateral and definitive qualification was invoked or … that it
was, apart from conventional stipulations, exercised by the States
granting asylum as a right appertaining to them and respected by
the territorial States as a duty incumbent on them and not merely
for reasons of political expediency. The facts brought to the
knowledge of the Court disclose so much uncertainty and
contradiction, so much fluctuation and discrepancy in the exercise
of diplomatic asylum and in the official views expressed on
various occasions, there has been so much inconsistency in the
rapid succession of conventions on asylum, ratified by some
States and rejected by others, and the practice has been so much
influenced by considerations of political expediency in the various
cases, that it is not possible to discern in all this any constant and
uniform usage, mutually accepted as law, with regard to the
alleged rule of unilateral and definitive qualification of the
offence.”
5. The court held that even if Colombia could prove that such a regional
custom existed, it would not be binding on Peru, because Peru “far from
having by its attitude adhered to it, has, on the contrary, repudiated it by
refraining from ratifying the Montevideo Conventions of 1933 and 1939,
which were the first to include a rule concerning the qualification of the
offence [as “political” in nature] in matters of diplomatic asylum.” (See in this
regard, the lesson on persistent objectors. Similarly in the North Sea
Continental Shelf Cases the court held ‘in any event the . . . rule would appear
to be inapplicable as against Norway in as much as she had always opposed
any attempt to apply it to the Norwegian coast’.)
6. The court concluded that Columbia, as the State granting asylum, is not
competent to qualify the offence by a unilateral and definitive decision,
binding on Peru.
(2) In this specific case, was Peru, as the territorial State, bound to give a
guarantee of safe passage?
7. The court held that there was no legal obligation on Peru to grant safe
passage either because of the Havana Convention or customary law. In the
case of the Havana Convention, a plain reading of Article 2 results in an
obligation on the territorial state (Peru) to grant safe passage only after it
requests the asylum granting State (Columbia) to send the person granted
asylum outside its national territory (Peru). In this case the Peruvian
government had not asked that Torre leave Peru. On the contrary, it contested
the legality of asylum granted to him and refused to grant safe conduct.
8. The court looked at the possibility of a customary law emerging from State
practice where diplomatic agents have requested and been granted safe
passage for asylum seekers, before the territorial State could request for his
departure. Once more, the court held that these practices were a result of a
need for expediency and other practice considerations over an existence of a
belief that the act amounts to a legal obligation (see paragraph 4 above).
“There exists undoubtedly a practice whereby the diplomatic
representative who grants asylum immediately requests a safe
conduct without awaiting a request from the territorial state for
the departure of the refugee…but this practice does not and
cannot mean that the State, to whom such a request for safe-
conduct has been addressed, is legally bound to accede to it.”
(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it
granted asylum and is the continued maintenance of asylum a violation of the
treaty?
9. Article 1 of the Havana Convention states that “It is not permissible for
States to grant asylum… to persons accused or condemned for common
crimes… (such persons) shall be surrendered upon request of the local
government.”
10. In other words, the person-seeking asylum must not be accused of a
common crime (for example, murder would constitute a common crime, while
a political offence would not).The accusations that are relevant are those
made before the granting of asylum. Torre’s accusation related to a military
rebellion, which the court concluded was not a common crime and as such
the granting of asylum complied with Article 1 of the Convention.
11. Article 2 (2) of the Havana Convention states that “Asylum granted to
political offenders in legations, warships, military camps or military aircraft,
shall be respected to the extent in which allowed, as a right or through
humanitarian toleration, by the usages, the conventions or the laws of the
country in which granted and in accordance with the following
provisions: First: Asylum may not be granted except in urgent cases and for
the period of time strictly indispensable for the person who has sought asylum
to ensure in some other way his safety.”
12. An essential pre-requisite for the granting of asylum is the urgency or, in
other words, the presence of “an imminent or persistence of a danger for the
person of the refugee”. The court held that the facts of the case, including the
3 months that passed between the rebellion and the time when asylum was
sought, did not establish the urgency criteria in this case (pp. 20 -23). The
court held:
“In principle, it is inconceivable that the Havana Convention could
have intended the term “urgent cases” to include the danger of
regular prosecution to which the citizens of any country lay
themselves open by attacking the institutions of that country… In
principle, asylum cannot be opposed to the operation of justice.”
13. In other words, Torre was accused of a crime but he could not be tried in a
court because Colombia granted him asylum. The court held that “protection
from the operation of regular legal proceedings” was not justified under
diplomatic asylum.
14. The court held:
“In the case of diplomatic asylum the refugee is within the
territory of the State. A decision to grant diplomatic asylum
involves a derogation from the sovereignty of that State. It
withdraws the offender from the jurisdiction of the territorial
State and constitutes an intervention in matters which are
exclusively within the competence of that State. Such a
derogation from territorial sovereignty cannot be recognised
unless its legal basis is established in each particular case.”
15. As a result, exceptions to this rule are strictly regulated under international
law.
An exception to this rule (asylum should not be granted to those
facing regular prosecutions) can occur only if, in the guise of
 justice, arbitrary action is substituted for the rule of law. Such
would be the case if the administration of justice were corrupted
by measures clearly prompted by political aims. Asylum protects
the political offender against any measures of a manifestly extra-
legal character which a Government might take or attempt to
take against its political opponents… On the other hand, the
safety which arises out of asylum cannot be construed as a
protection against the regular application of the laws and against
the jurisdiction of legally constituted tribunals. Protection thus
understood would authorize the diplomatic agent to obstruct the
application of the laws of the country whereas it is his duty to
respect them… Such a conception, moreover, would come into
conflict with one of the most firmly established traditions of
Latin-America, namely, non-intervention [for example, by
Colombia into the internal affairs of another State like Peru]….
16. Asylum may be granted on “humanitarian grounds to protect political
prisoners against the violent and disorderly action of irresponsible sections of
the population.” (for example during a mob attack where the territorial State
is unable to protect the offender). Torre was not in such a situation at the time
when he sought refuge in the Colombian Embassy at Lima.
17. The court concluded that the grant of asylum and reasons for its
prolongation were not in conformity with Article 2(2) of the Havana
Convention (p. 25).
“The grant of asylum is not an instantaneous act which
terminates with the admission, at a given moment of a refugee to
an embassy or a legation. Any grant of asylum results in, and in
consequence, logically implies, a state of protection, the asylum is
granted as long as the continued presence of the refugee in the
embassy prolongs this protection.”
NB: The court also discussed the difference between extradition and granting
of asylum – you can read more on this in pp. 12 – 13 of the judgment. The
discussions on the admissibility of the counter claim of Peru are set out in pp.
18 – 19.
12. NORTH SEA CONTINENTAL SHELF CASES (SUMMARY)
Ruwanthika Gunaratne and Public International Law
at https://ruwanthikagunaratne.wordpress.com, 2008 – present.
Unauthorized use and/or duplication of this material without express and
written permission from this blog’s author and/or owner is strictly prohibited.
Excerpts and links may be used, provided that full and clear credit is given to
Ruwanthika Gunaratne and Public International Law with appropriate and
specific direction to the original content.
Name of the Case: The North Sea Continental Shelf Cases
(Germany/Denmark; Germany/Netherlands); Year of Decision: 1969; and
Court: ICJ.
NB: This post discussed only aspects of the case related to treaty or
customary international law.
Overview: The jurisprudence of the North Sea Continental Shelf Cases sets
out the dual requirement for forming customary international law – State
practice (objective element) and opinio juris (subjective element). It
elaborated the criteria necessary to establish State practice – widespread and
representative participation. The case highlighted that the State practice
of importance were of those States whose interests were affected by the
custom. It also identified the fact that uniform and consistent practice was
necessary to show opinio juris – a belief that the practice amounts to a legal
obligation. The North Sea Continental Self Cases also dispelled the myth that
duration of the practice (i.e. the number of years) was an essential factor in
forming customary international law.
The case involved the delimitation of the continental shelf areas in the North
Sea between Germany and Denmark and Germany and Netherlands beyond
the partial boundaries previously agreed upon by these States. The parties
requested the ICJ to decide the principles and rules of international law that
are applicable to the above delimitation. The parties disagreed on the
applicable principles or rules of delimitation – Netherlands and Denmark
relied on the principle of equidistance (the method of determining the
boundaries in such a way that every point in the boundary is equidistant from
the nearest points of the baselines from which the breath of the territorial sea
of each State is measured). Germany sought to get a decision in favour of the
notion that the delimitation of the relevant continental shelf is governed by
the principle that each coastal state is entitled to a just and equitable share
(hereinafter called just and equitable principle/method). Contrary to Denmark
and Netherlands, Germany argued that the principle of equidistance was
neither a mandatory rule in delimitation of the continental shelf nor a rule of
customary international law that was not binding on Germany. The court was
not asked to delimit – the parties agreed to delimit the continental shelf as
between their countries, by agreement, after the determination of the ICJ on
the applicable principles.
Facts of the Case:
Netherlands and Denmark had drawn partial boundary lines based on the
equidistance principle (A-B and C-D). An agreement on further prolongation
of the boundary proved difficult because Denmark and Netherlands wished
this prolongation to take place based on the equidistance principle (B-E and
D-E) where as Germany was of the view that, together, these two boundaries
would produce an inequitable result for her. Germany stated that due to its
concave coastline, such a line would result in her loosing out on her share of
the continental shelf based on proportionality to the length of its North Sea
coastline. The Court had to decide the principles and rules of international law
applicable to this delimitation. In doing so, the court had to decide if the
principles espoused by the parties were binding on the parties either through
treaty law or customary international law.
Questions before the Court (as relevant to this post):
Is Germany under a legal obligation to accept the equidistance-special
circumstances principle, contained in Article 6 of the Geneva Convention,
either as a customary international law rule or on the basis of the Geneva
Convention?
The Court’s Decision:
The use of the equidistance method had not crystallised into customary law
and was is not obligatory for the delimitation of the areas in the North Sea
related to the present proceedings.
Relevant Findings of the Court:
Nature of the treaty obligation: Is the 1958 Geneva Convention, and in
particular Article 6, binding on Germany?
1. Article 6 of the Geneva Convention on the Continental Shelf states that
unless the parties have agreed on a method for delimitation or unless special
circumstances exist, the equidistance method would apply (see Article 6).
Germany has signed but not ratified the Geneva Convention, while
Netherlands and Denmark are parties to the Convention. The latter two States
argue that while Germany is not a party to the Convention (not having ratified
it), she is still bound by Article 6 of the Convention because:
“…(1) by conduct, by public statements and proclamations, and in other ways,
the Republic has unilaterally assumed the obligations of the Convention; or
has manifested its acceptance of the conventional regime; or has recognized it
as being generally applicable to the delimitation of continental shelf areas…
(2) the Federal Republic had held itself out as so assuming, accepting or
recognizing, in such a manner as to cause other States, and in particular
Denmark and the Netherlands, to rely on the attitude thus taken up” (the
latter is called the principle of estoppel).
2. The Court rejected the first argument. It stated that only a ‘very definite
very consistent course of conduct on the part of a State’ would allow the court
to presume that a State had somehow become bound by a treaty (by a means
other than in a formal manner: i.e. ratification) when the State was ‘at all
times fully able and entitled to…’ accept the treaty commitments in a formal
manner. The Court held that Germany had not unilaterally assumed
obligations under the Convention. The court also took notice of the fact that
even if Germany ratified the treaty, she had the option of entering into a
reservation on Article 6 following which that particular article would no longer
be applicable to Germany (i.e. even if one were to assume that Germany had
intended to become a party to the Convention, it does not presuppose that it
would have also undertaken those obligations contained in Article 6).
3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which
came into force in 1980, discusses more fully the obligations of third States to
treaties. It clearly stipulates that an obligation arises for a third State from a
provision of a treaty only if (1) the parties to the treaty intend the provision to
create this obligation for the third States; and (2) the third State expressly
accepts that obligation in writing (A. 35 of the VCLT). The VCLT was not in force
when the ICJ deliberated on this case. However, as seen above, the ICJ’s
position was consistent the VCLT. (See the relevant provisions of the Vienna
Convention on the Law of Treaties).
4. The court held that the existence of a situation of estoppel would have
allowed Article 6 to become binding on Germany – but held that Germany’s
action did not support an argument for estoppel. The court also held that the
mere fact that Germany may not have specifically objected to the
equidistance principle as contained in Article 6 is not sufficient to state that
the principle is now binding upon it.
5. In conclusion, the court held that Germany had not acted in any way to
incur obligations contained in Article 6 of the Geneva Convention. The
equidistance – special circumstances rule was not binding on Germany by way
of treaty.
Nature of the customary international law obligation: Is Germany bound by
the provisions of Article 6 of the Geneva Convention by way of customary
international law?
6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted
rule of general international law on the subject of continental shelf
delimitation’ and existed independently of the Convention. Therefore, they
argued, Germany is bound by it by way of customary international law.
7. To decide if the equidistance principle bound Germany by way of customary
international law, the court examined (1) the status of the principle contained
in Article 6 as it stood when the Convention was being drawn up (2) and after
the latter came into force.
What was the customary law status of Article 6 at the time of drafting the
Convention?
8. The court held the principle of equidistance, as contained in Article 6, did
not form a part of existing or emerging customary international law at the
time of drafting the Convention. The Court supported this finding based on (1)
the hesitation expressed by the drafters of the Convention – International Law
Commission – on the inclusion of Article 6 (para. 62) and (2) the fact
reservations to Article 6 was permissible under the Convention (Article 12).
The court held:
… Article 6 is one of those in respect of which, under the reservations article
of the Convention (Article 12) reservations may be made by any State on
signing, ratifying or acceding for, speaking generally, it is a characteristic of
purely conventional rules and obligations that, in regard to them, some faculty
of making unilateral reservations may, within certain limits, be admitted;
whereas this cannot be so in the case of general or customary law rules and
obligations which, by their very nature, must have equal force for all members
of the international community, and cannot therefore be the subject of any
right of unilateral exclusion exercisable at will by any one of them in its own
favor…. The normal inference would therefore be that any articles that do not
figure among those excluded from the faculty of reservation under Article 12,
were not regarded as declaratory of previously existing or emergent rules of
law (see para 65 for a counter argument and the court’s careful
differentiation)…”
Did the provisions in Article 6 on the equidistance principle attain the
customary law status after the Convention came into force?
9. The court then examined whether the rule contained in Article 6 had
become customary international law after the Convention entered into force –
either due the convention itself (i.e., if enough States had ratified the
Convention in a manner to fulfil the criteria specified below), or because of
subsequent State practice (i.e. even if adequate number of States had not
ratified the Convention one could find sufficient State practice to meet the
criteria below). The court held that Article 6 of the Convention had not
attained a customary law status (compare the 1958 Geneva Convention with
the four Geneva Conventions on 1949 in the field of international
humanitarian law in terms of its authority as a pronouncement of customary
international law).
10. For a customary rule to emerge the court held that it needed: (1) very
widespread and representative participation in the convention, including
States whose interests were specially affected (i.e. generality); and (2) virtually
uniform practice (i.e. consistent and uniform usage) undertaken in a manner
that demonstrates (3) a general recognition of the rule of law or legal
obligation (i.e. opinio juries). In the North Sea Continental Shelf cases the
court held that the passage of a considerable period of time was unnecessary
(i.e. duration) for the formation of a customary law.
Widespread and representative participation
11. The court held that the first criteria was not met. The number of
ratifications and accessions to the convention (39 States) were not adequately
representative (including of coastal States – i.e. those States whose rights are
affected) or widespread.
Duration
12. The court held that duration taken for the customary law rule to emerge is
not as important as widespread and representative participation, uniform
usage and the existence of an opinio juris.
“Although the passage of only a short period of time (in this case, 3 – 5 years)
is not necessarily, or of itself, a bar to the formation of a new rule of
customary international law on the basis of what was originally a purely
conventional rule, an indispensable requirement would be that within the
period in question, short though it might be, State practice, including that of
States whose interests are specially affected, should have been both extensive
and virtually uniform in the sense of the provision invoked and should
moreover have occurred in such a way as to show a general recognition that a
rule of law or legal obligation is involved (text in brackets added).”
Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions
(Lotus case) in so far as those acts or omissions are done following a belief
that the said State is obligated by law to act or refrain from acting in a
particular way. (For more on opinio juris click here).
14. The Court examined 15 cases where States had delimited their boundaries
using the equidistance method, after the Convention came into force (paras.
75 -77). The court concluded, even if there were some State practice in favour
of the equidistance principle the court could not deduct the necessary opinio
juris from this State practice. The North Sea Continental Shelf Cases confirmed
that both State practice (the objective element) and opinio juris (the
subjective element) are essential pre-requisites for the formation of a
customary law rule. This is consistent with Article 38 (1) (b) of the Statute
of the ICJ. The following explains the concept of opinio juris and the
difference between customs (i.e. habits) and customary law:
Not only must the acts concerned amount to a settled practice, but they must
also be such, or be carried out in such a way, as to be evidence of a belief that
this practice is rendered obligatory by the existence of a rule of law requiring
it. The need for such a belief, i.e, the existence of a subjective element, is
implicit in the very notion of the opinio juris sive necessitatis. The States
concerned must therefore feel that they are conforming to what amounts to a
legal obligation. The frequency, or even habitual character of the acts is not in
itself enough. There are many international acts, e.g., in the field of
ceremonial and protocol, which are performed almost invariably, but which
are motivated only by considerations of courtesy, convenience or tradition,
and not by any sense of legal duty.
15. The court concluded that the equidistance principle was not binding on
Germany by way of treaty or customary international law because, in the case
of the latter, the principle had not attained a customary international law
status at the time of the entry into force of the Geneva Convention or
thereafter. As such, the court held that the use of the equidistance method is
not obligatory for the delimitation of the areas concerned in the present
proceedings.
12. NORTH SEA CONTINENTAL SHELF CASES (SUMMARY)
Name of the Case: The North Sea Continental Shelf Cases
(Germany/Denmark; Germany/Netherlands); Year of Decision: 1969;
and Court: ICJ.
NB: This post discussed only aspects of the case related to treaty or
customary international law.
Overview: The jurisprudence of the North Sea Continental Shelf Cases sets
out the dual requirement for forming customary international law – State
practice (objective element) and opinio juris (subjective element). It
elaborated the criteria necessary to establish State practice – widespread and
representative participation. The case highlighted that the State practice
of importance were of those States whose interests were affected by the
custom. It also identified the fact that uniform and consistent practice was
necessary to show opinio juris – a belief that the practice amounts to a legal
obligation. The North Sea Continental Self Cases also dispelled the myth that
duration of the practice (i.e. the number of years) was an essential factor in
forming customary international law.
The case involved the delimitation of the continental shelf areas in the North
Sea between Germany and Denmark and Germany and Netherlands beyond
the partial boundaries previously agreed upon by these States. The parties
requested the ICJ to decide the principles and rules of international law that
are applicable to the above delimitation. The parties disagreed on the
applicable principles or rules of delimitation – Netherlands and Denmark
relied on the principle of equidistance (the method of determining the
boundaries in such a way that every point in the boundary is equidistant from
the nearest points of the baselines from which the breath of the territorial sea
of each State is measured). Germany sought to get a decision in favour of the
notion that the delimitation of the relevant continental shelf is governed by
the principle that each coastal state is entitled to a just and equitable share
(hereinafter called just and equitable principle/method). Contrary to Denmark
and Netherlands, Germany argued that the principle of equidistance was
neither a mandatory rule in delimitation of the continental shelf nor a rule of
customary international law that was not binding on Germany. The court was
not asked to delimit – the parties agreed to delimit the continental shelf as
between their countries, by agreement, after the determination of the ICJ on
the applicable principles.
Facts of the Case:
Netherlands and Denmark had drawn partial boundary lines based on the
equidistance principle (A-B and C-D). An agreement on further prolongation of
the boundary proved difficult because Denmark and Netherlands wished this
prolongation to take place based on the equidistance principle (B-E and D-
E) where as Germany was of the view that, together, these two boundaries
would produce an inequitable result for her. Germany stated that due to its
concave coastline, such a line would result in her loosing out on her share of
the continental shelf based on proportionality to the length of its North Sea
coastline. The Court had to decide the principles and rules of international law
applicable to this delimitation. In doing so, the court had to decide if the
principles espoused by the parties were binding on the parties either through
treaty law or customary international law.
Questions before the Court (as relevant to this post):
Is Germany under a legal obligation to accept the equidistance-special
circumstances principle, contained in Article 6 of the Geneva Convention,
either as a customary international law rule or on the basis of the Geneva
Convention?
The Court’s Decision:
The use of the equidistance method had not crystallised into customary law
and was is not obligatory for the delimitation of the areas in the North Sea
related to the present proceedings.
Relevant Findings of the Court:
Nature of the treaty obligation: Is the 1958 Geneva Convention, and in
particular Article 6, binding on Germany?
1. Article 6 of the Geneva Convention on the Continental Shelf states that
unless the parties have agreed on a method for delimitation or unless special
circumstances exist, the equidistance method would apply (see Article 6).
Germany has signed but not ratified the Geneva Convention, while
Netherlands and Denmark are parties to the Convention. The latter two States
argue that while Germany is not a party to the Convention (not having ratified
it), she is still bound by Article 6 of the Convention because:
“…(1) by conduct, by public statements and proclamations, and
in other ways, the Republic has unilaterally assumed the
obligations of the Convention; or has manifested its acceptance
of the conventional regime; or has recognized it as being
generally applicable to the delimitation of continental shelf
areas…
(2) the Federal Republic had held itself out as so assuming,
accepting or recognizing, in such a manner as to cause other
States, and in particular Denmark and the Netherlands, to rely on
the attitude thus taken up” (the latter is called the principle of
estoppel).
2. The Court rejected the first argument. It stated that only a ‘very definite
very consistent course of conduct on the part of a State’ would allow the court
to presume that a State had somehow become bound by a treaty (by a means
other than in a formal manner: i.e. ratification) when the State was ‘at all
times fully able and entitled to…’ accept the treaty commitments in a formal
manner. The Court held that Germany had not unilaterally assumed
obligations under the Convention. The court also took notice of the fact that
even if Germany ratified the treaty, she had the option of entering into a
reservation on Article 6 following which that particular article would no longer
be applicable to Germany (i.e. even if one were to assume that Germany had
intended to become a party to the Convention, it does not presuppose that it
would have also undertaken those obligations contained in Article 6).
3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which
came into force in 1980, discusses more fully the obligations of third States to
treaties. It clearly stipulates that an obligation arises for a third State from a
provision of a treaty only if (1) the parties to the treaty intend the provision to
create this obligation for the third States; and (2) the third State expressly
accepts that obligation in writing (A. 35 of the VCLT). The VCLT was not in force
when the ICJ deliberated on this case. However, as seen above, the ICJ’s
position was consistent the VCLT. (See the relevant provisions of the Vienna
Convention on the Law of Treaties).
4. The court held that the existence of a situation of estoppel would have
allowed Article 6 to become binding on Germany – but held that Germany’s
action did not support an argument for estoppel. The court also held that the
mere fact that Germany may not have specifically objected to the
equidistance principle as contained in Article 6 is not sufficient to state that
the principle is now binding upon it.
5. In conclusion, the court held that Germany had not acted in any way to
incur obligations contained in Article 6 of the Geneva Convention. The
equidistance – special circumstances rule was not binding on Germany by way
of treaty.
Nature of the customary international law obligation: Is Germany bound by
the provisions of Article 6 of the Geneva Convention by way of customary
international law?
6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted
rule of general international law on the subject of continental shelf
delimitation’ and existed independently of the Convention. Therefore, they
argued, Germany is bound by it by way of customary international law.
7. To decide if the equidistance principle bound Germany by way of customary
international law, the court examined (1) the status of the principle contained
in Article 6 as it stood when the Convention was being drawn up (2) and after
the latter came into force.
What was the customary law status of Article 6 at the time of drafting the
Convention?
8. The court held the principle of equidistance, as contained in Article 6, did
not form a part of existing or emerging customary international law at the
time of drafting the Convention. The Court supported this finding based on (1)
the hesitation expressed by the drafters of the Convention – International Law
Commission – on the inclusion of Article 6 (para. 62) and (2) the fact
reservations to Article 6 was permissible under the Convention (Article 12).
The court held:
… Article 6 is one of those in respect of which, under the reservations article
of the Convention (Article 12) reservations may be made by any State on
signing, ratifying or acceding for, speaking generally, it is a characteristic of
purely conventional rules and obligations that, in regard to them, some faculty
of making unilateral reservations may, within certain limits, be admitted;
whereas this cannot be so in the case of general or customary law rules and
obligations which, by their very nature, must have equal force for all members
of the international community, and cannot therefore be the subject of any
right of unilateral exclusion exercisable at will by any one of them in its own
favor…. The normal inference would therefore be that any articles that do not
figure among those excluded from the faculty of reservation under Article 12,
were not regarded as declaratory of previously existing or emergent rules of
law (see para 65 for a counter argument and the court’s careful
differentiation)…”
Did the provisions in Article 6 on the equidistance principle attain the
customary law status after the Convention came into force?
9. The court then examined whether the rule contained in Article 6 had
become customary international law after the Convention entered into force –
either due the convention itself (i.e., if enough States had ratified the
Convention in a manner to fulfil the criteria specified below), or because of
subsequent State practice (i.e. even if adequate number of States had not
ratified the Convention one could find sufficient State practice to meet the
criteria below). The court held that Article 6 of the Convention had not
attained a customary law status (compare the 1958 Geneva Convention with
the four Geneva Conventions on 1949 in the field of international
humanitarian law in terms of its authority as a pronouncement of customary
international law).
10. For a customary rule to emerge the court held that it needed: (1) very
widespread and representative participation in the convention, including
States whose interests were specially affected (i.e. generality); and (2) virtually
uniform practice (i.e. consistent and uniform usage) undertaken in a manner
that demonstrates (3) a general recognition of the rule of law or legal
obligation (i.e. opinio juries). In the North Sea Continental Shelf cases the
court held that the passage of a considerable period of time was unnecessary
(i.e. duration) for the formation of a customary law.
Widespread and representative participation
11. The court held that the first criteria was not met. The number of
ratifications and accessions to the convention (39 States) were not adequately
representative (including of coastal States – i.e. those States whose rights are
affected) or widespread.
Duration
12. The court held that duration taken for the customary law rule to emerge is
not as important as widespread and representative participation, uniform
usage and the existence of an opinio juris.
“Although the passage of only a short period of time (in this case,
3 – 5 years) is not necessarily, or of itself, a bar to the formation
of a new rule of customary international law on the basis of what
was originally a purely conventional rule, an indispensable
requirement would be that within the period in question, short
though it might be, State practice, including that of States whose
interests are specially affected, should have been both extensive
and virtually uniform in the sense of the provision invoked and
should moreover have occurred in such a way as to show a
general recognition that a rule of law or legal obligation is
involved (text in brackets added).”
Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions
(Lotus case) in so far as those acts or omissions are done following a belief
that the said State is obligated by law to act or refrain from acting in a
particular way. (For more on opinio juris click here).
14. The Court examined 15 cases where States had delimited their boundaries
using the equidistance method, after the Convention came into force (paras.
75 -77). The court concluded, even if there were some State practice in favour
of the equidistance principle the court could not deduct the necessary opinio
juris from this State practice. The North Sea Continental Shelf Cases confirmed
that both State practice (the objective element) and opinio juris (the
subjective element) are essential pre-requisites for the formation of a
customary law rule. This is consistent with Article 38 (1) (b) of the Statute of
the ICJ. The following explains the concept of opinio juris and the difference
between customs (i.e. habits) and customary law:
Not only must the acts concerned amount to a settled practice,
but they must also be such, or be carried out in such a way, as to
be evidence of a belief that this practice is rendered obligatory by
the existence of a rule of law requiring it. The need for such a
belief, i.e, the existence of a subjective element, is implicit in the
very notion of the opinio juris sive necessitatis. The States
concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual
 character of the acts is not in itself enough. There are many
international acts, e.g., in the field of ceremonial and protocol,
which are performed almost invariably, but which are motivated
only by considerations of courtesy, convenience or tradition, and
not by any sense of legal duty.
15. The court concluded that the equidistance principle was not binding on
Germany by way of treaty or customary international law because, in the case
of the latter, the principle had not attained a customary international law
status at the time of the entry into force of the Geneva Convention or
thereafter. As such, the court held that the use of the equidistance method is
not obligatory for the delimitation of the areas concerned in the present
proceedings.
13. Nuclear Tests Case (Australia & New Zealand v. France) case brief
Nuclear Tests Case (Australia & New Zealand v. France)
Procedural History:
Proceeding before the International Court of Justice.
Overview:
Australia and New Zealand (P) demanded that France (D) cease atmospheric
nuclear tests in the South Pacific. France (D) completed a series of nuclear
tests in the South Pacific. Australia and New Zealand (P) applied to the !.C.).
demanding that France (D) cease testing immediately. While the case was
pending, France (D) announced the series of tests was complete and that it
did not plan any further such tests. France (D) moved to dismiss the
applications.
Issue:
May declarations made by way of unilateral acts have the effect of creating
legal obligations?
Rule:
declerations made by way of unilateral acts may have the effect of creating
legal obligations.
Analysis:
The unilateral statements made by French authorities were first
communicated to the government of Australia. To have legal effect there was
no need tor the statements to be directed to any particular state. The general
nature and characteristics of the statements alone were relevant for
evaluation of their legal implications.
Outcome:
Yes. Declarations made by way of unilateral acts may have the effect of
creating legal obligations. The sole relevant question is whether the language
employed in any given declaration reveals a clear intention. One of the basic
principles governing the creation and performance of legal obligations is the
principle of good faith. The statements made by the President of the French
Republic must be held to constitute an engagement of the State in regard to
the circumstances and intention with which they were made. The statements
made by the French authorities are therefore relevant and legally binding.
Applications dismissed.
14. NICARAGUA VS UNITED STATES (SUMMARY) ON SELF DEFENCE AND USE
OF FORCE
Case: Case Concerning the Military and Paramilitary Activities In and Against
Nicaragua (Nicaragua vs United States) (Merits: focusing on matters relating
to the use of force and self-defence)
Year of Decision: 1986
Court: ICJ
NB: This blog post will discuss matters on the use of force and self-defence. If
you would like to read about the impact of the Nicaragua judgement on
customary international law and the US multilateral reservation please click
here.
Overview: The case involved military and paramilitary activities conducted by
the United States against Nicaragua from 1981 to 1984. Nicaragua asked the
Court to find that these activities violated international law.
Facts of the Case:
In July 1979 the Government of President Somoza collapsed following an
armed opposition led by the Frente Sandinista de Liberacibn Nacional (FSLN) .
The new government – installed by FSLN – began to meet armed opposition
 from supporters of the former Somoza Government and ex-members of the
National Guard. The US – initially supportive of the new government –
changed its attitude when, according to the United States, it found that
Nicaragua was providing logistical support and weapons to guerrillas in El
Salvador. In April 1981 it terminated United States aid to Nicaragua and in
September 1981, according to Nicaragua, the United States “decided to plan
and undertake activities directed against Nicaragua”.
The armed opposition to the new Government was conducted mainly by (1)
Fuerza Democratica Nicaragüense (FDN), which operated along the border
with Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which
operated along the border with Costa Rica, (see map of the region). Initial US
support to these groups fighting against the Nicaraguan Government (called
“contras”) was covert. Later, the United States officially acknowledged its
support (for example: In 1983 budgetary legislation enacted by the United
States Congress made specific provision for funds to be used by United States
intelligence agencies for supporting “directly or indirectly military or
paramilitary operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in control of the
contras, the United States devised their strategy and directed their tactics and
that they were paid for and directly controlled by United States personal.
Nicaragua also alleged that some attacks were carried out by United
States military – with the aim to overthrow the Government of Nicaragua.
Attacks against Nicaragua included the mining of Nicaraguan ports and attacks
on ports, oil installations and a naval base. Nicaragua alleged that aircrafts
belonging to the United States flew over Nicaraguan territory to gather
intelligence, supply to the contras in the field and to intimidate the
population.
The United States did not appear before the ICJ at the merit stages, after
refusing to accept the ICJ’s jurisdiction to decide the case. The United States at
the jurisdictional phase of the hearing, however, stated that it relied on an
inherent right of collective self-defence guaranteed in A. 51 of the UN Charter
by “providing, upon request, proportionate and appropriate assistance…” to
Costa Rica, Honduras and El Salvador in response to Nicaragua’s alleged acts
aggression against those countries (paras. 126, 128).
Questions before the Court:
• Did the United States breach its customary international law obligation – not
to intervene in the affairs of another State – when it trained, armed, equipped
and financed the contra forces or encouraged, supported and aided the
military and paramilitary activities against Nicaragua?
Did the United States breach its customary international law obligation – not
to use force against another State – when it directly attacked Nicaragua in
1983 – 1984 and when its activities in bullet point 1 above resulted in the use
of force?
If so, can the military and paramilitary activities that the United
States undertook in and against Nicaragua be justified as collective self-
defence?
Did the United States breach its customary international law obligation – not
to violate the sovereignty of another State – when it directed or authorized its
aircrafts to fly over Nicaraguan territory and by acts referred to in bullet point
2 above?
Did the United States breach its customary international law obligations – not
to violate the sovereignty of another State, not to intervene in its affairs, not
to use force against another State and not to interrupt peaceful maritime
commerce – when it laid mines in the internal waters and the territorial sea of
Nicaragua?
ICJ decision: The United States violated customary international law in
relation to bullet points 1, 2, 4 and 5 above. On bullet point 3, the Court found
that the United States could not rely on collective self-defence to justify its use
of force against Nicaragua.
Relevant Findings of the Court:
1. The court held that the United States breached its customary
international law obligation – not to use force against another State: (1)
when it directly attacked Nicaragua in 1983 – 1984; and (2) when its
activities with the contra forces resulted in the threat or use of force (see
paras 187 -201).
The Court held that:
The prohibition on the use of force is found in Article 2(4) of the UN
Charter and in customary international law.
In a controversial finding the court sub-classified the use of force as: (1) the
“most grave forms of the use of force” (i.e. those that constitute an armed
attack) and (2) the “less grave form” (i.e. organizing, instigating, assisting or
participating in acts of civil strife and terrorist acts in another State – when the
acts referred to involve a threat or use of force not amounting to an armed
attack).
The United States violated the customary international law prohibition on the
use of force when it laid mines in Nicaraguan ports. It violated this prohibition
when it attacked Nicaraguan ports, oil installations and a naval base (see
 below). The United States could justify its action on collective self-defence, if
certain criteria were met – this aspect is discussed below.
• The United States violated the customary international law prohibition on the
use of force when it assisted the contras by “organizing or encouraging the
organization of irregular forces and armed bands… for incursion into the
territory of another state” and participated “in acts of civil strife…in another
State” when these acts involved the threat or use of force.
• The supply of funds to the contras did not violate the prohibition on the use of
force. Nicaragua argued that the timing of the offensives against it was
determined by the United States: i.e. an offensive could not be launched until
the requisite funds were available. The Court held that “…it does not follow
that each provision of funds by the United States was made to set in motion a
particular offensive, and that that offensive was planned by the United
States.” The Court held further that while the arming and training of the
contras involved the threat or use of force against Nicaragua, the supply of
funds, in it self, only amounted to an act of intervention in the internal affairs
of Nicaragua (para 227) – this aspect is discussed below.
What is an armed attack?
• A controversial but interesting aspect of the Court’s judgement was its
definition of an armed attack. The Court held that an armed attack included:
(1) action by regular armed forces across an international border; and
(2) “the sending by or on behalf of a State of armed bands, groups, irregulars
or mercenaries, which carry out acts of armed force against another State of
such gravity as to amount to (inter alia) an actual armed attack conducted by
regular forces, or its (the State’s) substantial involvement therein”
NB: The second point somewhat resembles Article 3 (g) of the UNGA
Resolution 3314 (XXIX) on the Definition of Aggression.
• Mere frontier incidents are not considered as an armed attack – unless
because of its scale and effects it would have been classified as an armed
attack if it was carried out by regular forces.
▪ Assistance to rebels in the form of provision of weapons or logistical support
did not constitute an armed attack – it can be regarded as a threat or use of
force, or an intervention in the internal or external affairs of other States (see
paras 195, 230).
▪ Under Article 51 of the UN Charter and under CIL – self-defence is only
available against a use of force that amounts to an armed attack (para 211).
NB: In in the Case Concerning Oil Platforms and the advisory opinion on the
Legal Consequences of of the Construction of a Wall in the Occupied
Palestinian Territory (hereinafter called the Palestine wall case) the ICJ upheld
the definition of “armed attack” proposed in the Nicaragua case. In the
Palestinian wall case, the attacks from which Israel was claiming self defence
originated from non-State actors. However, the Court held that Article 51’s
inherent right of self defence was available to one State only against another
State (para 139). Judges Higgins, Buergenthal and Kooijmans opposed this
narrow view. Articles on State Responsibility, prepared by the International
Law Commission, provided significant guidance as to when acts of non-State
actors may be attributed to States. These articles, together with recent State
practice relating attacks on terrorists operating from other countries (see legal
opinions surrounding the United States attack on Afghanistan), may have
widened the scope of an armed attack, and consequently, the right of self
defence, envisaged by the ICJ.
2. The Court held that the United States could not justify its military and
paramilitary activities on the basis of collective self-defence.
Customary international law allows for exceptions to the prohibition on the
use of force – including the right to individual or collective self-defence (for a
difference between the two forms of self defence, click here). The United
States, at an earlier stage of the proceedings, had asserted that the Charter
itself acknowledges the existence of this customary international law right
when it talks of the “inherent” right of a State under Article 51 of the Charter
(para.193).
When a State claims that it used force in collective self-defence, the Court
would look into two aspects:
(1) whether the circumstances required for the exercise of self-defence existed
and
(2) whether the steps taken by the State, which was acting in self-defence,
corresponds to the requirements of international law (i.e. did it comply with
the principles of necessity and proportionality).
Several criteria must be met for a State to exercise the right of individual or
collective self-defence:
(1) A State must have been the victim of an armed attack;
(2) This State must declare itself as a victim of an armed attack; [NB: the
assessment whether an armed attack took place nor not is done by the state
who was subjected to the attack. A third State cannot exercise a right of
collective self-defence based its (the third State’s) own assessment]; and
(3) In the case of collective self-defence – the victim State must request for
assistance (“there is no rule permitting the exercise of collective self-defence
in the absence of a request by the State which regards itself as the victim of an
armed attack”).
 (4) The State does not, under customary international law, have the same
obligation as under Article 51 of the UN Charter to report to the Security
Council that an armed attack happened – but “the absence of a report may be
one of the factors indicating whether the State in question was itself
convinced that it was acting in self-defence” (see below).
“At this point, the Court may consider whether in customary international law
there is any requirement corresponding to that found in the treaty law of the
United Nations Charter, by which the State claiming to use the right of
individual or collective self-defence must report to an international body,
empowered to determine the conformity with international law of the
measures which the State is seeking to justify on that basis. Thus Article 51 of
the United Nations Charter requires that measures taken by States in exercise
of this right of self-defence must be “immediately reported” to the Security
Council. As the Court has observed above (paragraphs 178 and 188), a
principle enshrined in a treaty, if reflected in customary international law, may
well be so unencumbered with the conditions and modalities surrounding it in
the treaty. Whatever influence the Charter may have had on customary
international law in these matters, it is clear that in customary international
law it is not a condition of the lawfulness of the use of force in self-defence
that a procedure so closely dependent on the content of a treaty commitment
and of the institutions established by it, should have been followed. On the
other hand, if self-defence is advanced as a justification for measures which
would otherwise be in breach both of the principle of customary international
law and of that contained in the Charter, it is to be expected that the
conditions of the Charter should be respected. Thus for the purpose of
enquiry into the customary law position, the absence of a report may be one
of the factors indicating whether the State in question was itself convinced
that it was acting in self-defence (See paras 200, 232 -236)”.
▪ The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa
Rica and Honduras in determining whether an armed attack was undertaken
by Nicaragua against the three countries – which in turn would
necessitate self-defence (paras 230 – 236). The Court referred to statements
made by El Salvador, Costa Rica, Honduras and the United States before the
Security Council. None of the countries who were allegedly subject to an
armed attack by Nicaragua (1) declared themselves as a victim of an armed
attack or request assistance from the United States in self-defence – at the
time when the United States was allegedly acting in collective self-defence;
and (2) the United States did not claim that it was acting under Article 51 of
the UN Charter and it did not report that it was so acting to the Security
Council. The Court concluded that the United States cannot justify its use of
force as collective self-defence.
The criteria with regard to necessity and proportionality, that is necessary
when using force in self-defence – was also not fulfilled (para 237).
3. The Court held that the United States breached its CIL obligation – not to
intervene in the affairs of another State – when it trained, armed, equipped
and financed the contra forces or encouraged, supported and aided the
military and paramilitary activities against Nicaragua.
The principle of non- intervention means that every State has a right to
conduct its affairs without outside interference – i.e it “…forbids States or
groups of States to intervene directly or indirectly in internal or external affairs
of other States.” . This is a corollary of the principle of sovereign equality of
States.
A prohibited intervention must accordingly be one bearing on matters in
which each State is permitted, by the principle of State sovereignty to decide
freely. One of these is the choice of a political, economic, social and cultural
system, and the formulation of foreign policy. Intervention is wrongful when it
uses methods of coercion in regard to such choices, which must remain free
ones. The element of coercion, which defines, and indeed forms the very
essence of, prohibited intervention, is particularly obvious in the case of an
intervention which uses force, either in the direct form of military action, or in
the indirect form of support for subversive or terrorist armed activities within
another State (para 205).
Nicaragua stated that the activities of the United States were aimed to
overthrow the government of Nicaragua and to substantially damage the
economy and weaken the political system to coerce the Government of
Nicaragua to accept various political demands of the United States. The Court
held:
“…first, that the United States intended, by its support of the contras, to
coerce the Government of Nicaragua in respect of matters in which each State
is permitted, by the principle of State sovereignty, to decide freely (see
paragraph 205 above) ; and secondly that the intention of the contras
themselves was to overthrow the present Government of Nicaragua… The
Court considers that in international law, if one State, with a view to the
coercion of another State, supports and assists armed bands in that State
whose purpose is to overthrow the government of that State, that amounts to
an intervention by the one State in the internal affairs of the other, whether or
not the political objective of the State giving such support and assistance is
equally far reaching.”
The financial support, training, supply of weapons, intelligence and logistic
support given by the United States to the contras was a breach of the
principle of non-interference. “…no such general right of intervention, in
support of an opposition within another State, exists in contemporary
international law”, even if such a request for assistance is made by an
opposition group of that State (see para 246 for more).
However, in a controversial finding, the Court held that the United States did
not devise the strategy, direct the tactics of the contras or exercise control on
them in manner so as to make their acts committed in violation of
international law imputable to the United States (see in this respect
“Determining US responsibility for contra operations under
international law” 81 AMJIL 86).T he Court concluded that “a number of
military and paramilitary operations of the contras were decided and planned,
if not actually by United States advisers, then at least in close collaboration
with them, and on the basis of the intelligence and logistic support which the
United States was able to offer, particularly the supply aircraft provided to the
contras by the United States” but not all contra operations reflected strategy
and tactics wholly devised by the United States.
“In sum, the evidence available to the Court indicates that the various forms
of assistance provided to the contras by the United States have been crucial to
the pursuit of their activities, but is insufficient to demonstrate their complete
dependence on United States aid. On the other hand, it indicates that in the
initial years of United States assistance the contra force was so dependent.
However, whether the United States Government at any stage devised the
strategy and directed the tactics of the contras depends on the extent to
which the United States made use of the potential for control inherent in that
dependence. The Court already indicated that it has insufficient evidence to
reach a finding on this point. It is a fortiori unable to determine that the
contra force may be equated for legal purposes with the forces of the United
States…The Court has taken the view (paragraph 110 above) that United
States participation, even if preponderant or decisive, in the financing,
organizing, training, supplying and equipping of the contras, the selection of
its military or paramilitary targets, and the planning of the whole of its
operation, is still insufficient in itself, on the basis of the evidence in the
possession of the Court, for the purpose of attributing to the United States the
acts committed by the contras in the course of their military or paramilitary
operations in Nicaragua. All the forms of United States participation
mentioned above, and even the general control by the respondent State over
a force with a high degree of dependency on it, would not in themselves
mean, without further evidence, that the United States directed or enforced
the perpetration of the acts contrary to human rights and humanitarian law
alleged by the applicant State. Such acts could well be committed by members
of the contras without the control of the United States. For this conduct to
give rise to legal responsibility of the United States, it would in principle have
to be proved that that State had effective control of the military or
paramilitary.”
Interesting, however, the Court also held that providing “…humanitarian aid to
persons or forces in another country, whatever their political affiliations or
objectives, cannot be regarded as unlawful intervention, or as in any other
way contrary to international law” (para 242).
In the event one State intervenes in the affairs of another State, the victim
State has a right to intervene in a manner that is short of an armed attack
(210).
“While an armed attack would give rise to an entitlement to collective self-
defence, a use of force of a lesser degree of gravity cannot as the Court has
already observed (paragraph 21 1 above). produce any entitlement to take
collective countermeasures involving the use of force. The acts of which
Nicaragua is accused, even assuming them to have been established and
imputable to that State, could only have justified proportionate counter-
measures on the part of the State which had been the victim of these acts,
namely El Salvador, Honduras or Costa Rica. They could not justify counter-
measures taken by a third State, the United States, and particularly could not
justify intervention involving the use of force.”
4. The United States breached its customary international law obligation –
not to violate the sovereignty of another State – when it directed or
authorized its aircrafts to fly over Nicaraguan territory and when it laid
mines in the internal waters of Nicaragua and its territorial sea.
The ICJ examined evidence and found that in early 1984 mines were laid in or
close to ports of the territorial sea or internal waters of Nicaragua “by persons
in the pay or acting ion the instructions” of the United States and acting under
its supervision with its logistical support. The United States did not issue any
warning on the location or existence of mines and this resulted in injuries and
increases in maritime insurance rates.
The court found that the United States also carried out high-altitude
reconnaissance flights over Nicaraguan territory and certain low-altitude
flights, complained of as causing sonic booms.
The basic concept of State sovereignty in customary international law is found
in Article 2(1) of the UN Charter. State sovereignty extends to a State’s internal
waters, its territorial sea and the air space above its territory. The United
States violated customary international law when it laid mines in the
territorial sea and internal waters of Nicaragua and when it carried out
unauthorised overflights over Nicaraguan airspace by aircrafts that belong to
or was under the control of the United States.
15. Tanada vs Angara 272 SCRA 18
Facts: On April 15, 1994, the Philippine Government represented by its
Secretary of the Department of Trade and Industry signed the Final Act
binding the Philippine Government to submit to its respective competent
authorities the WTO (World Trade Organization) Agreements to seek approval
for such. On December 14, 1994, Resolution No. 97 was adopted by the
Philippine Senate to ratify the WTO Agreement.
This is a petition assailing the constitutionality of the WTO agreement as it
violates Sec 19, Article II, providing for the development of a self reliant and
independent national economy, and Sections 10 and 12, Article XII, providing
for the “Filipino first” policy.
Issue; Whether or not the Resolution No. 97 ratifying the WTO Agreement is
unconstitutional ?
Ruling: The Supreme Court ruled the Resolution No. 97 is not unconstitutional.
While the constitution mandates a bias in favor of Filipino goods, services,
labor and enterprises, at the same time, it recognizes the need for business
exchange with the rest of the world on the bases of equality and reciprocity
and limits protection of Filipino interests only against foreign competition and
trade practices that are unfair. In other words, the Constitution did not intend
to pursue an isolationalist policy. Furthermore, the constitutional policy of a
“self-reliant and independent national economy” does not necessarily rule out
the entry of foreign investments, goods and services. It contemplates neither
“economic seclusion” nor “mendicancy in the international community.”
The Senate, after deliberation and voting, gave its consent to the WTO
Agreement thereby making it “a part of the law of the land”. The Supreme
Court gave due respect to an equal department in government. It presumes its
actions as regular and done in good faith unless there is convincing proof and
persuasive agreements to the contrary. As a result, the ratification of the WTO
Agreement limits or restricts the absoluteness of sovereignty. A treaty
engagement is not a mere obligation but creates a legally binding obligation
on the parties. A state which has contracted valid international obligations is
bound to make its legislations such modifications as may be necessary to
ensure the fulfillment of the obligations undertaken.
16. Mijares V. Ranada (2005)
Lessons Applicable: In all civil actions in which the subject of the litigation is
incapable of pecuniary estimation
Laws Applicable:
FACTS:
May 9 1991: a complaint was filed by ten Filipino citizens representing
a class of 10,000 members who each alleged having suffered human rights
abuses such as arbitrary detention, torture and rape in the hands of police or
military forces during the Marcos regime with the United States District Court
(US District Court), District of Hawaii, against the Estate of former Philippine
President Ferdinand E. Marcos (Marcos Estate)
US District Court and Affirmed by US CA: awarded them $1,964,005,859.90
Petitioners filed Complaint with Makati RTC for the enforcement of the Final
Judgment Marcos Estate filed a motion to dismiss, raising, among others, the
non-payment of the correct filing fees paying only P410. Petitioners claimed
that an action for the enforcement of a foreign judgment is not capable of
pecuniary estimation
RTC: estimated the proper amount of filing fees was approximately P472
and dismissing the case without prejudice. Petition for Certiorari under Rule
65
ISSUE: W/N the enforcement of a foreign judgment is incapable of pecuniary
estimation
HELD: NO. (But belongs to "other actions not involving property") petition is
GRANTED.
There is an evident distinction between a foreign judgment in an
action in rem and one in personam. For an action in rem, the foreign
judgment is deemed conclusive upon the title to the thing, while in an action
in personam, the foreign judgment is presumptive, and not conclusive, of a
 right as between the parties and their successors in interest by a subsequent
title
• However, in both cases, the foreign judgment is susceptible to
impeachment in our local courts on the grounds of want of jurisdiction or
notice to the party, collusion, fraud, or clear mistake of law or fact. Thus, the
party aggrieved by the foreign judgment is entitled to defend against the
enforcement of such decision in the local forum. It is essential that there
should be an opportunity to challenge the foreign judgment, in order for the
court in this jurisdiction to properly determine its efficacy even if such
judgment has conclusive effect as in the case of in rem actions, if only for the
purpose of allowing the losing party an opportunity to challenge the foreign
judgment. Consequently, the party attacking a foreign judgment has the
burden of overcoming the presumption of its validity. Absent perhaps a
statutory grant of jurisdiction to a quasi-judicial body, the claim for
enforcement of judgment must be brought before the regular courts.
• There are distinctions, nuanced but discernible, between the cause of
action arising from the enforcement of a foreign judgment, and that arising
from the facts or allegations that occasioned the foreign judgment. They may
pertain to the same set of facts, but there is an essential difference in the
right-duty correlatives that are sought to be vindicated. Extensive litigation is
thus conducted on the facts, and from there the right to and amount of
damages are assessed. On the other hand, in an action to enforce a foreign
judgment, the matter left for proof is the foreign judgment itself, and not the
facts from which it prescinds.
• As stated in Section 48, Rule 39, the actionable issues are generally
restricted to a review of jurisdiction of the foreign court, the service of
personal notice, collusion, fraud, or mistake of fact or law. The limitations on
review is in consonance with a strong and pervasive policy in all legal systems
to limit repetitive litigation on claims and issues. Otherwise known as the
policy of preclusion, it seeks to protect party expectations resulting from
previous litigation, to safeguard against the harassment of defendants, to
insure that the task of courts not be increased by never-ending litigation of
the same disputes, and in a larger sense to promote what Lord Coke in the
Ferrer's Case of 1599 stated to be the goal of all law: "rest and quietness." If
every judgment of a foreign court were reviewable on the merits, the plaintiff
would be forced back on his/her original cause of action, rendering immaterial
the previously concluded litigation.
• Marcos Estate cites Singsong v. Isabela Sawmill and Raymundo v.
Court of Appeals:
In determining whether an action is one the subject matter of which is not
capable of pecuniary estimation this Court has adopted the criterion of first
ascertaining the nature of the principal action or remedy sought. If it is
primarily for the recovery of a sum of money, the claim is considered capable
of pecuniary estimation, and whether jurisdiction is in the municipal courts or
in the courts of first instance would depend on the amount of the claim.
However, where the basic issue is something other than the right to recover a
sum of money, where the money claim is purely incidental to, or a
consequence of, the principal relief sought, this Court has considered such
actions as cases where the subject of the litigation may not be estimated in
terms of money, and are cognizable exclusively by courts of first instance (now
Regional Trial Courts).
An examination of Section 19(6), B.P. 129 reveals that the instant
complaint for enforcement of a foreign judgment, even if capable of pecuniary
estimation, would fall under the jurisdiction of the Regional Trial Courts
The complaint to enforce the US District Court judgment is one
capable of pecuniary estimation. But at the same time, it is also an action
based on judgment against an estate, thus placing it beyond the ambit of
Section 7(a) of Rule 141. It is covered by Section 7(b)(3), involving as it does,
"other actions not involving property." The petitioners thus paid the correct
amount of filing fees, and it was a grave abuse of discretion for respondent
judge to have applied instead a clearly inapplicable rule and dismissed the
complaint.
17. Filartiga v. Pena-Irala
Brief Fact Summary. A suit against Pena-Irala (D) on the premise that he had
tortured to death the decedent of Filartiga (P), was filed by Filartiga (P).
Synopsis of Rule of Law. For purpose of the Allen Tort Statute, torture may be
considered to violate law of nations.
Facts. A suit claiming that Pena-Irala (D) had tortured Filartiga’s (P) decedent
to death while he was a police Inspector General, was brought by Filartiga (P).
All parties were Paraguayan citizens. Jurisdiction was based on the Allen Tort
Statute, 28 U.S.C. S 1350, which provided jurisdiction for tort committed in
violation of “the law of nations.” The case was dismissed by the district court
for lack of jurisdiction to which Filartiga (P) appealed.
Issue. For purpose of the Allen Tort Statute, may torture be considered as a
violation of the law of nations?
Held. (Judge not stated in casebook excerpt). Yes. For purpose of the Allen
Tort Statute, torture may be considered to violate law of nations. The
prohibition against torture has become part of customary international law.
Various United Nations declarations such as the Universal Declaration of
Human Rights and the 1975 Declaration on the Protection of All Persons from
Torture further portrays the fact that prohibition against torture has become
part of customary international law. Torture has been officially renounced in
the vast majority of nations and this is the reason why this court concluded
that torture violates the law of nations.

Discussion. It is not new for many members of the United Nations to make
pronouncements and not be pronouncements into action. It is no secret that
torture is still widely practiced if not by a majority of countries then in a
significant manner. Actual practice, and not U.N. declarations have been
argued by commentators as what constitute international law.