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PUBLIC INTERNATIONAL LAW
CASE KEYWORDS (FACTS) HELD DOCTRINE
Cases on Customary Law
Kuroda vs. Jalandoni EO 68 established a National War
Crimes office, prescribing rules
and regulations governing the trial
of accused war criminals. Kuroda
challenged the jurisdiction of the
military commission on the ground
that PH was not a signatory to the
Hague and Geneva Conventions.
The Commission had jurisdiction
to try him. The change in our form
of government from
commonwealth to republic does
not affect the prosecution of those
charged with the crime of treason
committed during the
Commonwealth because it is an
offense against the same
sovereign people.
Even without the clause in our
Constitution (Article II, Section 2),
generally accepted principles of
international law will continue to
be binding by virtue of our
membership in the community of
nations.
General principles of law
automatically become part of
the law of the land.
Yamashita vs. Styer Prisoner of war was treated as a
war criminal. He challenged that
the Military Commission had no
jurisdiction.
SC decided that the Military
Commission had jurisdiction
because we were still in a state of
war.
Dissenting: J. Perfecto –
Yamashita is entitled to be
accorded all the guarantees,
protections, and defenses.
Mankind, in general, has been
covered by laws governing as far
back the ancient times. As such,
the Philippines is bound by
customary law.
Kookooritchkin vs. SolGen Russian did not want to submit to
the Bolshevik regime so he went
Kookooritchkin, as a stateless
citizen, is also entitled to
We are civilized people and we do
not do harsh things to each other.
the Philippines and became a
guerilla. The SolGen challenged
the approval of his naturalization
on the ground that there was no
testimonial or documentary
evidence to prove that he was
lawfully admitted in the
Philippines.
naturalization. Appellee's
testimony, besides being
uncontradicted, is supported by
the wellknown fact that the
ruthlessness of modern
dictatorship has scattered
throughout the world a large
number of stateless refugees or
displaced persons, without country
and without flag. The tyrannical
intolerance of said dictatorships
toward all opposition induced
them to resort to beastly
oppression, concentration camps
and blood purges, and it is only
natural that the notsofortunate
ones who were able to escape to
foreign countries should feel the
loss of all bonds of attachment to
the hells which were formerly their
fatherland's. Petitioner belongs to
that group of stateless refugees.
Nicaragua vs. US Nicaragua sued US for intervening
with its internal political matters,
for sending mercenaries, for
blocking its loans in the
international bank, and for using
threat and force – all because the
Nicaraguan government
supported the El Salvadoran
rebellion.
U.S. questioned the ICJ’s
jurisdiction.
U.S. cannot argue on the basis of
its multilateral treaty because
customary international law
operates separately from treaties.
U.S. only ceased to take part in
the proceedings after a judgment
had been given adverse to its
contentions on jurisdiction and
admissibility.
The principle of non-intervention
means that every State has a right
to conduct its affairs without
outside interference.
Customary norms have to be
consistent with state practice.
North Sea Continental Shelf
Cases
Germany, and Denmark and the
Netherlands submitted to the
Court certain differences
concerning the delimitation
between the Parties on the areas
of the continental shelf in the
North sea. Denmark and
Netherlands argued that the
principle of equidistance should be
used. Germany does not want to
submit to this principle because it
would be unfair to them (as they
will not get a proportionate share).
Germany is not bound to follow
the equidistance principle.
For customary law to emerge
the court held that it needed:
1. widespread and
representative participation
2. virtually uniform practice
3. opinion juris (general
recognition of the legal
obligation)
NORM = STATE PRACTICE +
OPINIO JURIS
They argued that it was not
binding as customary international
law.
South-West Africa Case: Ethiopia
vs. Africa; Liberia vs. South Africa
South West Africa was a League
of Nations Mandate Territory
placed under the administration of
South Africa. Ethiopia and Liberia,
included in SWA, alleged that the
gov’t of South Africa failed to
promote the well being of the
inhabitants by enforcing
apartheid.
SWA argued on the basis of
sacred trust, upon which the idea
of a Mandate is based implies a
sacred trust of civilizations,
meaning that all civilized nations
had an interest in seeing that it
was carried out.
In order that such interest might
take on a specifically legal
character, the sacred trust itself
must be or become more than a
moral or humanitarian ideal. It
must have juridical expression and
must be clothed in legal form. The
principle of sacred trust had no
residual juridical content which
could, so far as any particular
mandate is concerned, operate
per se to give rise to legal rights
and obligations outside the system
as a whole.
The ICJ can only rule on legal
rights, not on moral or ethical
issues. The duty of the Court is to
apply the law; not to make it.
Asylum Case (Colombian vs.
Peru)
Leader of military rebellion sought
asylum in Colombia. The
Colombian ambassador in Lima
informed the Peruvian gov’t of the
asylum granted to Haya dela
Torre and at the same time he
asked that a safe conduct be
issued to enable the refugee to
Colombia was not allowed to
unilaterally grant political asylum.
Colombia cannot invoke the
Havana Convention on Asylum of
1928 (Does not contain any
provision conferring on the State
granting asylum a unilateral
Extradition – the refugee is within
the territory of the State of refuge
Diplomatic asylum –the refugee is
within the territory of the State
where the offence was committed.
Conditions to grant asylum:
leave the country. competence to qualify the offence
with definitive and binding force
for the territorial state) and the
Montevideo Convention on
Political Asylum of 1933 (not
ratified by Peru, thus cannot
invoked against it)
1. It can be granted only to
political offenders who are not
accused or condemned for
common crimes and only in urgent
cases and for the time strictly
indispensable for the safety of the
refugee.
2. Article 2, Havana Convention:
The government of the State may
require that the refugee be sent
out of the national territory within
the shortest time possible; and the
diplomatic agent of the country
who has granted asylum may in
turn require the guarantees
necessary for the departure of the
refugee from the country with due
regard to the inviolability of his
person. —> Peru had not
demanded the departure of the
refugee and was therefore not
bound to deliver a safe conduct.
Nuclear Test Cases Australia and New Zealand filed a
complaint against France for the
fall outs caused by its nuclear
tests. On the basis of France’s
several declarations, the two
complainants said that it was
bound to stop the nuclear testing.
France was bound by its
declarations.
Declarations are legal obligations.
Unilateral declarations from States
are not sources of international
law; but they form a basis for the
operation of estoppel.
Legality of the use by a state of
nuclear weapons in armed conflict
“Is the threat or use of nuclear
weapons in any circumstance
permitted under international
law?” – General Assembly of
United Nations
Several states contended that
rendering an advisory opinion
could also lead to making
hypothetical declarations outside
the scope of judicial function that
could affect current disarmament
negotiations.
Article 96, par. 1: The General
Assembly or the Security Council
may request the International
Court of Justice to give an
advisory opinion on any legal
question.
Use of nuclear weapons in
general is contrary to international
laws applicable in armed conflict
but the court cannot conclude
definitively whether the use or
threat of the same is lawful or
unlawful in an extreme
circumstance of self-defense in
which survival of the State
would be at stake.
The Paquete Habana Fishing smacks were captured
and cargo became the prize of
war.
Capture of the fishing smacks and
taking the fish they captured as
prize of war, were unlawful and
without probable cause. –
according to precedents
Ancient usage has ripened into
international law.
International Humanitarian Law is
not only customary in nature but
By an ancient usage among
civilized nations, beginning
centuries ago and gradually
ripening into a rule of international
law, coast fishing vessels pursuing
their vocation of catching and
bringing fish have been
recognized as exempt, with their
cargoes and crews, from capture
as prize of war.
also jus cogens.
Exempting of fishing vessels was
founded on considerations of
humanity to a poor and industrious
order of men, and of the mutual
convenience of belligerent states
which rely on the livelihood of
fishing.
Right of Passage (Portugal vs.
India)
Portugal allegedly had a territory
in the Indian Peninsula. India
prevented Portugal from
exercising its right of passage.
— Portugal did not have the right
of passage in respect of armed
forces, armed police, and arms
and ammunition.
— India had not acted contrary to
its obligations resulting from
Portugal’s right of passage in
respect of private persons, civil
officials, and goods in general.
— When the British became the
sovereign in India, Portuguese
sovereignty was tacitly recognized
in those areas.
— With regard to private persons,
civil officials, and goods in
general, there existed during the
British and post-British periods a
constant and uniform practice
allowing free passage between
Daman and enclaves. That that
practice was accepted as law by
the parties and has given rise to a
Constant and uniform practice
between states is also a source of
international law. There is no need
to resort to general international
custom nor to general principles of
law in disposing of such cases
when there is an established
practice between the parties.
right and correlative obligation,
India has to grant a qualified right
of passage to the alleged
territories of Portugal.
Prosecutor vs. Tadic First person to ever be prosecuted
by the International Tribunal for
the Prosecution of Persons
Responsible for Serious
Violations of International
Humanitarian Law Committed in
the Territory of Former
Yugoslavia. He questioned the
jurisdiction of the international
tribunal
— Jurisdiction of the International
Tribunal — The narrow concept
of jurisdiction as the legal
power to state the law is not
applicable in international law
because it lacks a centralized
structure and has no integrated
judicial system.
— General Assembly was not
involved in the creation of the
tribunal — Just because the
security council is not a judicial
body does not mean that it cannot
set up one. It merely wanted to
establish an instrument to
exercise its own principal function
of maintenance of peace and
security. No delegation of powers
happened.
International humanitarian law
governs the conduct of both
international and internal armed
conflicts. (ARTICLE 5)
It is now a settle rule of customary
international law that crimes
against humanity do not require a
connection to international armed
conflict. If so, the Security Council
may have defined the crime in
Article 5 more narrowly than
necessary under customary
international law.
Salonga vs. Executive Secretary Case of the treaty of U.S. and
Philippines – VFA and Mutual
Defense Treaty.
Romulo-Kenney agreement not
valid because it was inconsistent
with the VFA. VFA is constitutional
because it is a self-executing
agreement, as it only intended to
It was not the intention of the
framers of the 1987 Constitution,
in adopting Article XVIII, Sec. 25,
to require the other contracting
State to convert their system to
carry out the obligations and
undertakings under the RP-US
Mutual Defense Treaty.
achieve alignment and parity with
ours. It was simply required that
the treaty be recognized as a
treaty by the other contracting
State. With that, it becomes for
both parties a binding international
obligation and the enforcement of
that obligation is left to the normal
recourse and processes under
international law.
Medellin vs. Texas Medellin is one of the persons
supposed to be granted pardon by
virtue of being
— When the President asserts the
power to enforce a non-self-
executing treaty by unilaterally
creating domestic law, he acts in
conflict with the implicit
understanding of the ratifying
Senate. The non-self-executing
character of the treaty constrains
the President’s ability to comply
with treaty commitments by
unilaterally making the treaty
binding on domestic courts.
— Due to the absence of any
legislation regarding these treaties
and the lack of any contention that
no legislation exists, the SC
concludes that the Avena
judgment is not automatically
binding domestic law. The general
rule is that judgment of foreign
courts awarding injunctive relief ,
even as to private parties, let
alone sovereign states, are not
generally entitled to enforcement.
While treaties may comprise
international commitments, they
are not domestic law unless
Congress enacted implementing
rules or the treaty is self-
executing.
— While treaties may comprise
international commitments, they
are not domestic law unless
Congress enacted implementing
rules or the treaty is self-
executing.
Texaco vs. Libya Libya promulgated decrees for
nationalization.
In determining the binding nature
of GA resolutions, the Court
looked into the voting patterns of
the participant states. It is
generally recommendatory but
may serve as an indicia of norm.
Doctrine of specifically affected
states.
Cases on General Principles of Law
Cambodia vs. Thailand Question of who has sovereignty
over the region of Temple of
Preah Vihear.
The commission underwent three
stages. In the final stage,
Cambodia transmitted 11 maps to
the Siamese government, which
the latter signed.
Cambodia relied on this map in
support of her claim to sovereignty
over the temple.
Thailand contests any claim based
on this map, on the following
grounds: (1) It was not the work of
the Mixed Commission/it was a
ICJ ruled that Thailand/Siam was
estopped from questioning the
validity or correctness of the map
because it has already signed it.
The map was even given wide
publicity.
The prince of Siam arrived at the
temple and saw a French flag at
the temple, but never contested it.
This constituted tacit recognition
of the sovereignty of Cambodia
over Preah Vihear.
Mistaken belief that the map line
was correctly drawn? Strengthens
case of Cambodia because it
Estoppel and acquiescence are
general principles of law which
can be a basis of international law.
Elements of Estoppel:
1. Act or representations
2. Reliance on (1)
3. Damage
unilateral act; (2) It was a material
error; (3) Thailand never accepted
it, but merely adoped a passive
attitude towards the map.
would mean that Siamese had, at
the back of their minds, believed
that the Temple was really part of
Cambodia’s territory.
Temple of Preah Vihear is situated
in territory under the sovereignty
of Cambodia.
Corfu Channel Case Albanian ships fired at Royal Navy
Ships while the latter was crossing
the Corfu Channel after they had
conducted an inspection of the
area. Albania claimed that the
Royal Navy Ships were
trespassing on Albanian waters.
Royal Navy Ships tested again if
they would be fired at. Two of their
ships were not fired at but they
struck mines and sustained
damages. People said that the
mines were laid by Yugoslavian
minelayers and not Albania.
Albania is liable for damages.
1. The mines were newly laid
when the explosions happened.
2. Since a state has exclusive
control over its waters, the victim
of a breach of international law, is
often unable to furnish direct proof
of facts giving rise to
responsibility. Such a State should
be endowed a more liberal
recourse to inferences of fact and
circumstantial evidence.
3. Albanian government constantly
kept a close watch over the waters
of the North Corfu Channel.
4. Albanian government never
notified anyone about the mines in
its waters.
5. Albanian government had
lookouts at Cape Kiephali, Denta
Point, and St. George’s Monastery
which were strategic places to
watch the channel.
Since a State has exclusive
control over its waters, the victim
of a breach of international law, is
often unable to furnish direct proof
of facts giving rise to
responsibility. Such a State
should be endowed a more
liberal recourse to inferences of
fact and circumstantial
evidence.
Albanian Gov’t had the obligation
to warn ships. Based on the ff
general and well-recognized
principles:
1. Elementary considerations of
humanity, even more exacting in
peace than in war.
2. The principle of the freedom of
maritime communication.
3. Every State’s obligation not to
allow knowingly its territory to be
used for acts contrary to the rights
of other States.
The laying of mines could not
have been accomplished without
the knowledge of the Albanian
Government.
ICJ declared that the Corfu
Channel was an international
highway therefore Albania can
only regulate the passage of war
ships and not prohibit them
altogether. Therefore as to this
issue, the sovereignty of Albania
was not violated.
BUT UK’s mine clearing operation
was illegal because it was
unauthorized by the Albanian
government.
Chorzow Factory
Barcelona Traction, Light and
Power Company
BP vs. Libya
Saudi Arabia vs. ARAMCO
8/8/15 11:17 AM
8/8/15 11:17 AM