PUBLIC INTERNATIONAL LAW CASE DIGESTSCOMPILED BY FEROZZA DELIA
SIMBULANSAN BEDA COLLEGE OF LAW || 2D
Art. 38, ICJ Statute
1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall
apply: a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted
as law;c. the general principles of law recognized by civilized
nations; d. subject to the provisions of Article 59, judicial
decisions and the teachings of the most highly qualified publicists
of the various nations, as subsidiary means for the determination
of rules of law.
2. This provision shall not prejudice the power of the Court to
decide a case ex aequo et bono, if the parties agree thereto.
Art. 53, Vienna Convention on Treaties
Article 53. TREATIES CONFLICTING WITH A PEREMPTORY NORM OF
GENERAL INTERNATIONAL LAW ("JUS COGENS")
A treaty is void if, at the time of its conclusion, it conflicts
with a peremptory norm of general international law. For the
purposes of the present Convention, a peremptory norm of general
international law is a norm accepted and recognized by the
international community of States as a whole as a norm from which
no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same
character.
SHIGENORI KURODA VS. MAJOR GENERAL RAFAEL JALANDONI, Duque,
Toralba, Buencosejo, Tabuena, Aranas, Hussey and Port. March 26,
1949.
-Kuroda, formerly a Lieutenat-General of the Japanese Imperial
Army and Commanding General of the Japanese Imperial Forces in the
Phils in 1943-1944 was charged before the military commission for
unlawfully disregarding and failing to discharge his duties as such
command, permitting them to commit brutal atrocities and other high
crimes against noncombatant civilians and prisoners of the Japanese
Imperial forces in violations of laws and customs of war.
-Petitioner argues: 1) that EO 68 is illegal on the ground that
it violates the constitution and local laws as Phils is not a
signatory to the Hague Convention on Rules and Regulation covering
Land Warfare, thus, petitioners is charged of crimes not based on
law, national and international empanelled and that the military
commission is without jurisdiction to try the petitioner. 2) He
also argues that the US Attorneys Hussey and Port are not
authorized by the SC to practice law in the Phils and their
participation is a diminution of our personality as an independent
state and in violation of our Consti and they also have no
personality as prosecution as US is not a party in the case.
-EO 68: established the National War Crimes Office, prescribing
the rules and regulations governing the tiral of accused war
criminal is valid and constitutional because Sec. 3 Art 2 of Consti
provides that the Phils renounces war as an instrument of national
policy and adopts the generally accepted principles of
international law as part of the nation. This is also in accordance
with the Hague Convention, the Geneva Convention and significant
precedents of international jurisprudence.
-The said EO is an exercise by the President of his power as
Commander in Chief of all armed forces. It is an adoption of
measure not only to repel and defeat the enemies but also to seize
and subject to disciplinary measure those enemies who attempts to
violate the law of war.
-the military commission for the trial and punishment of war
criminals has jurisdiction as long as the technical state of war
continues which includes the period until military occupation up to
the treaty of peach and may extend beyond.
-Such rule and principles of the Hague Convention therefore form
part of the law of our nation even if the Philippines was not a
signatory for our Constitution has been general and extensive in
its scope and is not confined to the recognition of rule and
principle of international law.
-Furthermore when the crimes charged against petitioner were
allegedly committed the Philippines was under the sovereignty of
United States and thus we were equally bound together with the
United States and with Japan Our rights and obligation were not
erased by our assumption of full sovereignty but entitles us to
enforce the right on our own of trying and punishing those who
committed crimes against crimes against our people. War crimes
committed against our people and our government while we were a
Commonwealth are triable and punishable by our present
Republic.
- Military Commission is a special military tribunal governed by
a special law and not by the Rules of court which govern ordinary
civil court. It has already been shown that Executive Order No. 68
which provides for the organization of such military commission is
a valid and constitutional law. There is nothing in said executive
order which requires that counsel appearing before said commission
must be attorneys qualified to practice law in the Philippines in
accordance with the Rules of Court. In facts it is common in
military tribunals that counsel for the parties are usually
military personnel who are neither attorneys nor even possessed of
legal training.
-Secondly the appointment of the two American attorneys is not
violative of our nation sovereignty. It is only fair and proper
that United States, which has submitted the vindication of crimes
against her government and her people to a tribunal of our nation
should be allowed representation in the trial of those very
crimes
-It is of common knowledge that the United State and its people
have been equally if not more greatly aggrieved by the crimes with
which petitioner stands charged before the Military Commission. It
can be considered a privilege for our Republic that a leader nation
should submit the vindication of the honor of its citizens and its
government to a military tribunal of our country.
-The Military Commission having been convened by virtue of a
valid law with jurisdiction over the crimes charged which fall
under the provisions of Executive Order No. 68, and having said
petitioner in its custody, this Court will not interfere with the
due process of such Military commission.
Tomoyuki Yamashita vs. Wilhem StyerG.R. L-129 December 19,
1945Ponente: Moran, C.J.
FACTS:1. Yamashita was the Commanding General of the Japanese
army in the Philippines during World War 2. He was charged before
the American military commission for war crimes.
2. He filed a petition for habeas corpus and prohibition against
Gen. Styer to reinstate his status as prisoner of war from being
accused as a war criminal. Petitioner also questioned the
jurisdiction of the military tribunal.
Issue: Whether or not the military tribunal has jurisdiction
HELD:
YES.1. The military commission was lawfully created in
conformity with an act of Congress sanctioning the creation of such
tribunals.
2. The laws of war imposes upon a commander the duty to take any
appropriate measures within his powers to control the troops under
his command to prevent acts which constitute violation of the laws
of war. Hence, petitioner could be legitimately charged with
personal responsibility arising from his failure to take such
measure. In this regard the SC invoked Art. 1 of the Hague
Convention No. IV of 1907, as well as Art. 19 of Hague Convention
No. X, Art. 26 of 1929 Geneva Convention among others.
3. Habeas corpus is untenable since the petitioner merely sought
for restoration to his former status as prisoner of war and not a
discharge from confinement. This is a matter of military measure
and not within the jurisdiction of the courts.
4. The petition for prohibition against the respondent will also
not life since the military commission is not made a party
respondent in the case. As such, no order may be issued requiring
it to refrain from trying the petitioner.
Eremes Kookooritchkin v. Solicitor General, G.R. No. L-1812,
August 27, 1948
FACTS:In August 1941, appellee-petitioner Kookooritchkin filed
with the CFI of Camarines Sur a petition for naturalization,
supported by (a) the affidavits of ex-Judge Jaime M. Reyes and Dr.
Salvador Mariano, residents of Camarines Sur, (b) his declaration
of intention which was sworn in July 1940, and (c) notice of
hearing.
The petition was filed in August 1941 but was not heard until
August 28 and Sept. 30, 1947 when appellee-petitioner presented his
evidence, since the province was invaded by the Japanese forces
during WWI and the case records had to be reconstituted after being
destroyed during the war.
Appellant SolGen cross-examined appellee-petitioners witnesses
but did not file any opposition and did not present any evidence to
controvert the petition. The CFI granted the petition for
naturalization, finding that appellee-petitioner was a native-born
Russian who grew up as a citizen of and was part of the military of
the defunct Imperial Russian Government under the Czars. He had
several stints while in military service before he joined the White
Russian Army at Vladivostok and fought against the Bolsheviks until
1922 when the latter force defeated the former.
Refusing to join the Bolshevik regime, he fled by sea to
Shanghai, and eventually went to Manila as part of the group of
White Russians under Admiral Stark in March 1923. He finally
permanently resided in Iriga, Camarines Sur except during his stint
in the guerrilla force in Caramoan from 1942 to July 1945. The
lower court also made findings of the establishment of his family,
employment, social life, his ability to speak and write English and
Bicol, his good moral character, adherence to the underlying
principles of the Philippine Constitution, and being a stateless
refugee belonging to no State.
ISSUES: W/N (1) appellee-petitioners declaration of intention to
become a Filipino citizen was valid and sufficient basis for his
petition for naturalization, (2) appellee-petitioner sufficiently
established legal residence in the Philippines and could speak and
write any of the principal Philippine languages, and (3)
appellee-petitioner was stateless refugee.
HELD: (1) Section 5 of the Revised Naturalization Law applies
and provides that [n]o declaration shall be valid until entry for
permanent residence has been established and a certificate showing
the date, place and manner of his arrival has been issued. While
appellee-petitioners declaration was reconstituted, the attached
certificate referred to in the declaration was not reconstituted.
The SC ruled that the law does not state that the certificate is
essential to the validity of the declaration as the only
requirement is for the said certificate to be issued. There is the
uncontroverted fact of appellee-petitioners peaceful and continuous
residence in the Philippines for 25 years and statement in his
declaration that a certificate had been attached to the said
declaration. Hence, appellee-petitioners declaration was valid
under law in view of other competent evidence showing the facts
sought to be established under the certificate that was not
reconstituted.
(2) Appellee-petitioner has sufficiently shown legal residence
in the Philippines for a continuous period of not less than 10
years as required by Section 2 of the Revised Naturalization Law.
In addition, appellee-petitioner had good command of both English
and Bicol. While there may be many standards out there, none was
set in the law on the required ability to speak and write any of
the principal Philippine languages. Appellee-petitioner got along
well with his comrades during his hazardous days in the guerrilla
movement thus showing that he satisfied the requirement of the law.
There was also circumstantial evidence that appellee-petitioner
also ought to know how to write Bicol, which uses the same alphabet
used in English and so widely used in the Philippines. Given his
good command of English as shown in his testimony,
appellee-petitioner could easily make use of the same alphabet in
the place where he had been residing for 25 years.
(3) Appellant SolGen asserted that appellee-petitioner failed to
show that he lost his citizenship under the laws of Russia and that
Russia granted to Filipinos the same right to be naturalized
citizens. However, the SC still found that lower court did not err
in finding appellee-petitioner as a stateless refugee.
Appellee-petitioners testimony that he is not a Russian citizen and
that he has no citizenship is uncontroverted. There is also the
well-known ruthlessness of modern dictatorships giving rise to a
great number of stateless refugees or displaced persons, without
country or flag. The tyrannical intolerance of dictatorships to
opposition translates into beastly oppression, concentration camps
and bloody purges, such that it is only natural that those who flee
to other countries to escape such a situation, such as
appellee-petitioner, lose all bonds of attachments to their former
fatherlands.
The Paquete Habana, 175 U.S. 677 (1900)Nos. 895-896Argued
November 7-8, 1899Decided January 8, 1900
Brief Fact Summary. The argument of the fishermen whose vessels
was seized by the U.S (P) officials was that international law
exempted coastal fishermen from capture as prizes of war.
Synopsis of Rule of Law. The argument of the fishermen whose
vessels was seized by the U.S (P) officials was that international
law exempted coastal fishermen from capture as prizes of war.
Facts. This appeal of a district court decree, which condemned
two fishing vessels and their cargoes as prizes of war, was brought
by the owners (D) of two separate fishing vessels. Each of the
vessel running in and out of Havana and sailing under the Spanish
flag was a fishing smack which regularly engaged in fishing on the
coast of Cuba. Inside the vessels were fresh fish which the crew
had caught.The owners of the vessels were not aware of the
existence of a war until they were stopped by U.S. (P) squadron. No
incriminating material like arms were found on the fishermen and
they did not make any attempt to run the blockade after learning of
its existence not did they resist their arrest. When the owners (D)
appealed, they argued that both customary international law and
writings of leading international scholars recognized an exemption
from seizure at wartime of coastal fishing vessels.
Issue. Are coastal fishing vessels with their cargoes and crews
excluded from prizes of war?
Held. (Gray, J.). Yes. Coastal fishing vessels with their
cargoes and crews are excluded from prizes of war. The doctrine
that exempts coastal fishermen with their vessels and crews from
capture as prizes of war has been known by the U.S. (P) from the
time of the War of Independence and has been recognized explicitly
by the French and British governments. It is an established rule of
international law that coastal fishing vessels with their equipment
and supplies, cargoes and crews, unarmed and honestly pursuing
their peaceful calling of catching and bringing in fish are exempt
from capture as prizes of war. Reversed.
Discussion. Chief Justice Fuller who had a dissenting opinion
which was not published in this casebook argued that the captured
vessels were of such a size and range as to not fall within the
exemption. He further argued that the exemption in any case had not
become a customary rule of international law, but was only an act
of grace that had not been authorized by the President.
CO KIM CHAM vs. ESEBEUIO VALDEZ TAN KEH75 phil. 113, September
17, 1945
FACTS: Co Kim Cham had a pending case that was filed during the
period of Japanese occupation. He filed a petition of Mandamus, in
which he is requesting for the judge of the lower court to continue
the proceedings in the Court of First Instance in Manila. But Judge
Arsenio P. Dizon refused to take cognizance of and continue the
proceedings of the said case since the proclamation issued on
October 23, 1944 by General Douglas MacArthur invalidating and
nullifying the judicial proceedings and judgments of the court of
the Philippines, in the absence of an enabling law, the lower
courts have no jurisdiction to take cognizance of and continue
judicial proceedings pending in the courts while the government is
under the occupation of the Japanese. ISSUES:1. Whether or not the
judicial acts and proceedings of the court existing in the
Philippines under the Philippine Executive Commission and the
Republic of the Philippines were good and valid.2. Whether or not
the proclamation issued by General Douglas MacArthur in which he
declared that all laws, regulations and processes of any of the
government in the Philippines are null and void has invalidated all
judgments and judicial acts and proceedings of the said courts.
HELD:1. YES. The judicial acts and proceedings of the court were
good and valid. The government, during the Japanese occupation
being de facto government, it necessarily follows that the judicial
acts and proceedings of the court of justice of those governments,
which are not of a political complexion, were good and valid. Those
not only judicial but also legislative acts of de facto government,
which are not of a political complexion, are remain valid after
reoccupation of a territory.
2. NO. The proclamation does not invalidate the judgement and
judicial proceedings. And applying the principles for the exercise
of military authority in an occupied territory, President McKinley,
in his executive order to the Secretary of War of May 19,1898, said
in part: "Though the powers of the military occupant are absolute
and supreme, and immediately operate upon the political condition
of the inhabitants, the municipal laws of the conquered territory,
such as affect private rights of person and property and provide
for the punishment of crime, are considered as continuing in force,
so far as they are compatible with the new order of things, until
they are suspended or superseded by the occupying belligerent; and
in practice they are not usually abrogated, but are allowed to
remain in force and to be administered by the ordinary tribunals,
substantially as they were before the occupation. This enlightened
practice is, so far as possible, to be adhered to on the present
occasion. The judges and the other officials connected with the
administration of justice may, if they accept the authority of the
United States, continue to administer the ordinary law of the land
as between man and man under the supervision of the American
Commander in Chief."
RAMON GONZALES VS RUFINO HECHANOVA9 SCRA 23
FACTS:During the term of President Diosdado Macapagal, he
entered into two executive agreements with Vietnam and Burma for
the importation of rice without complying with the requisite of
securing a certification from the National Economic Council showing
that there is a shortage in cereals or rice. Hence, the then
Executive Secretary, Rufino Hechanova, authorized the importation
of 67,000 tons of rice from abroad to the detriment of our local
planters. Ramon Gonzales, then president of the Iloilo Palay and
Corn Planters Association assailed the executive agreements.
Gonzales averred that Hechanova is without jurisdiction or in
excess of jurisdiction, because Republic Act 3452 prohibits the
importation of rice and corn by the Rice and Corn Administration or
any other government agency.ISSUE: Whether or not RA 3452 prevails
over the 2 executive agreements entered into by Macapagal.Whether
an executive or an international agreement may be invalidated by
our courts
HELD: Yes. Under the Constitution, the main function of the
Executive is to enforce laws enacted by Congress. The former may
not interfere in the performance of the legislative powers of the
latter, except in the exercise of his veto power. He may not defeat
legislative enactments that have acquired the status of laws, by
indirectly repealing the same through an executive agreement
providing for the performance of the very act prohibited by said
laws. In the event of conflict between a treaty and a statute, the
one which is latest in point of time shall prevail, is not
applicable to the case at bar, Hechanova not only admits, but,
also, insists that the contracts adverted to are not treaties. No
such justification can be given as regards executive agreements not
authorized by previous legislation, without completely upsetting
the principle of separation of powers and the system of checks and
balances which are fundamental in our constitutional set up.
As regards the question whether an executive or an international
agreement may be invalidated by our courts, suffice it to say that
the Constitution of the Philippines has clearly settled it in the
affirmative, by providing that the SC may not be deprived of its
jurisdiction to review, revise, reverse, modify, or affirm on
appeal, certiorari, or writ of error, as the law or the rules of
court may provide, final judgments and decrees of inferior courts
in All cases in which the constitutionality or validity of any
treaty, law, ordinance, or executive order or regulation is in
question. In other words, our Constitution authorizes the
nullification of a treaty, not only when it conflicts with the
fundamental law, but, also, when it runs counter to an act of
Congress.
LAO ICHONG VS. JAIME HERNANDEZG.R. No. L-7995 May 31, 1957
FACTS:Lao Ichong is a Chinese businessman who entered the
country to take advantage of business opportunities herein abound
(then) particularly in the retail business. For some time he and
his fellow Chinese businessmen enjoyed a monopoly in the local
market in Pasay. Until in June 1954 when Congress passed the RA
1180 or the Retail Trade Nationalization Act the purpose of which
is to reserve to Filipinos the right to engage in the retail
business. Ichong then petitioned for the nullification of the said
Act on the ground that it contravened several treaties concluded by
the RP which, according to him, violates the equal protection
clause (pacta sund servanda). He said that as a Chinese businessman
engaged in the business here in the country who helps in the income
generation of the country he should be given equal opportunity.
ISSUE: Whether or not a law may invalidate or supersede treaties
or generally accepted principles.
HELD: Yes, a law may supersede a treaty or a generally accepted
principle. In this case, there is no conflict at all between the
raised generally accepted principle and with RA 1180. The equal
protection of the law clause does not demand absolute equality
amongst residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced; and, that the equal
protection clause is not infringed by legislation which applies
only to those persons falling within a specified class, if it
applies alike to all persons within such class, and reasonable
grounds exist for making a distinction between those who fall
within such class and those who do not.
For the sake of argument, even if it would be assumed that a
treaty would be in conflict with a statute then the statute must be
upheld because it represented an exercise of the police power
which, being inherent could not be bargained away or surrendered
through the medium of a treaty. Hence, Ichong can no longer assert
his right to operate his market stalls in the Pasay city
market.
North Sea Continental Shelf Cases(Federal Republic of
Germany/Denmark, Federal Republic of Germany/Netherlands)I.C.J.
Reports 1969
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:
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 Courts 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 ICJs 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 Germanys 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 courts 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.
NICARAGUA VS UNITED STATES: AN ANALYSIS OF JURISPRUDENCE ON
CUSTOMARY INTERNATIONAL LAW
Case: Case Concerning the Military and Paramilitary Activities
In and Against Nicaragua (Nicaragua vs United States)
Year of Decision: 1986. Court: ICJ.
Overview: The case involved military and paramilitary activities
conducted by, or with the assistance of, the United States against
Nicaragua from 1981 to 1984. Due to a multilateral treaty
reservation of the United States (hereinafter called the Vandenberg
reservation), the Court was compelled to base its findings only on
customary and general principles of international law. As a result,
the Nicaragua case developed significant jurisprudence on
clarifying customary international law on the use of force and
non-intervention, elements necessary to form customary
international law and the relationship between the latter and
treaty law. Controversial aspects of the decision included the
courts methodology used to determine that the principle of
non-intervention had attained customary law status, the courts
reliance on UN resolutions as a source of opinio juris and the
courts reliance on multilateral treaties to determine customary
international law in face of the Vandenberg reservation.
In the Nicaragua case, the ICJ discussed:
The competence of the ICJ to give its determination based on
customary international law in the face of the Vandenberg
reservation of the United States. The relationship between treaty
law and customary international law. Elements of customary
international law. The prohibition on the use of force as a jus
cogens norm. Customary international law status of the principle of
non-intervention. The competence of the ICJ to give its
determination based on customary international law
The competence of the ICJ to give its determination based on
customary international law
1. The United States when accepting the compulsory jurisdiction
of the ICJ (under Article 36(2) of the ICJ Statute) entered into
the Vandenberg reservation. This reservation barred the ICJ from
using certain multilateral treaties in the adjudication of the
dispute.
2. The United States held that this reservation barred the Court
from determining the case even on the basis of customary and
general principles of international law because customary law
provisions, on which Nicaragua relied on, were identical to
provisions in treaties sought to be excluded. Because of the
identical content, the United States argued, treaty provisions
supervene and subsume the parallel customary law provision (see
below).
3. The Court disagreed. It held that multilateral treaty
reservations could not preclude the Court from determining cases
relying customary international law because the latter exists
independently of treaty law.
NB: The United States disagreed with the Courts determination to
proceed with the case and refused to participate further, including
at the merits stage (see the declaration made by the United States
in this regard). Although the Court was barred from resorting to
multilateral treaties, it referred to the latter, including the UN
Charter, to identify the existence, nature and scope of various
customary law principles. Commentators criticised the Court for
circumventing the multilateral reservation in this manner.
Relationship between treaty law and customary international
law
4. As we noted before, the United States argued that when
customary international law and treaty law contain the same
content; the treaty law subsumes and supervenes customary
international law. In other words, the existence of principles in
the United Nations Charter precludes the possibility that similar
rules might exist independently in customary international law,
either because existing customary rules had been incorporated into
the Charter, or because the Charter influenced the later adoption
of customary rules with a corresponding content (para 174).
5. In its response, the Court distinguished two situations:
(a) Situations where the customary law principles were identical
to treaty provisions; and
(b) Situations where customary law and treaty law rights and
obligations differed in respect of the same subject matter.
6. In situations where customary law principles were identical
to treaty provisions (reflected as (a) above), the Court, quite
correctly, disagreed with the view of the United States. It held
that even if principles of customary international law are codified
into treaties, the former continues to exist side by side with the
latter. For treaty parties, both customary and treaty law apply and
if, for some reason, the treaty ceases to apply the identical
customary law provision continues to apply between them unaffected
(see more on para 178).
7. The fact that customary international law exists alongside
treaty law was an argument brought by Norway and Denmark in the
North Sea Continental Shelf Cases. In these cases, the two
countries having failed to attribute an obligation under Article 6
of the Geneva Conventions of 1958 to Germany, sought to bind
Germany via customary international law. In this case the Court
determined that Article 6 neither reflected customary law at the
time of the codification, nor had it attained that status at the
time of the determination. In the Nicaragua case, the Court relied
on the North Sea Continental Shelf Cases to support the assertion
that principles of customary international law can exist side by
side with identical treaty law provisions and the latter does not
supervene the former in a manner where the former ceases to exist
(para 177).
8. The Court also relied on Article 51 of the UN Charter to show
that a treaty itself can recognise the existence of customary
international law on the same subject matter. The term inherent in
Article 51 recognised that customary law rights of self-defense
existed alongside treaty provisions.
9. Rules containing the same content could be treated
differently in customary international law and in treaty law. For
example, treaty law may contain institutions or mechanisms to
ensure the effective implementation of its provisions, including
those that reflect customary law. One could take the Courts reading
of Article 51 as an example. A State that exercises the right of
self-defence under Article 51, according to the UN Charter, has an
obligation to report the use of force immediately to the Security
Council. The Court held that this was a treaty requirement and one
that did not exist under customary law. Interestingly, although the
failure to report did not result in a breach of customary
international law, the Court indicated that the United States
failure to observe this requirement contradicted her claim to be
acting in self defence (see paras 200, 235).
10. The Court discussed situations where customary international
law and treaty law provisions were not identical (see point (b)
above). For example, the Court referred to the fact that concepts
such and necessity and proportionality, or the definition of what
constitutes an armed attack, are not found under Article 51, or the
UN Charter, but in customary law. The Court concluded that (1) this
proves that customary international law continues to exist
alongside treaty law and that (2) areas governed by the two sources
of law do not (always) overlap and the rules do not (always) have
the same content.
the Charter, having itself recognized the existence of this
right (inherent customary law right of self-defence under A. 51 of
the UN Charter), does not go on to regulate directly all aspects of
its content. For example, it does not contain any specific rule
whereby self-defence would warrant only measures which are
proportional to the armed attack and necessary to respond to it, a
rule well established in customary international law. Moreover, a
definition of the armed attack which, if found to exist, authorises
the exercise of the inherent right of self-defence, is not provided
in the Charter, and is not part of treaty law. It cannot therefore
be held that Article 51 is a provision which subsumes and
supervenes customary international law.
11. In case of a divergence between treaty law and customary
international law, for the parties to the treaty, amongst
themselves, the treaty provisions apply as lex specialis. The
courts support for this principle can be found in paras 180 and
181. The Court, in conclusion, explained the relationship between
the UN Charter and customary international law in the following
manner:
However, so far from having constituted a marked departure from
a customary international law which still exists unmodified, the
Charter gave expression in this field (on the use of force and self
defence) to principles already present in customary international
law, and that law has in the subsequent four decades developed
under the influence of the Charter, to such an extent that a number
of rules contained in the Charter have acquired a status
independent of it. The essential consideration is that both the
Charter and the customary international law flow from a common
fundamental principle outlawing the use of force in international
relations. The differences which may exist between the specific
content of each are not, in the Courts view, such as to cause a
judgment confined to the field of customary international law to be
ineffective or inappropriate (to the parties of the Charter who are
bound by the Charter) (text in brackets added)(para 181).
The relationship between customary international law and jus
cogens
13. The court cited material presented by Nicaragua, the United
States and the International Law Commission to argue that the
prohibition on the use of force contained in Article 2(4) of the UN
Charter has attained the status of a jus cogens norm. The Court
found this to be A further confirmation of the validity as
customary international law of the principle of the prohibition of
the use of force expressed in Article 2, paragraph 4, of the
Charter of the United Nations (para 190).
The necessary elements to determine the existence of customary
international law
14. The Court, similar to the North Sea Continental Shelf Case,
considered both the subjective element (opinio juris) and the
objective element (State practice) as essential pre-requisites to
the formation and elucidation of a customary international law norm
(para 207). The jurisprudence of the Nicaragua case contained an
important clarification inconsistent State practice does not affect
the formation or continued existence of a customary principle so
long as the inconsistency is justified as a breach of the rule.
It is not to be expected that in the practice of States the
application of the rules in question should have been perfect, in
the sense that States should have refrained, with complete
consistency, from the use of force or from intervention in each
others internal affairs.
The Court does not consider that, for a rule to be established
as customary, the corresponding practice must be in absolutely
rigorous conformity with the rule. In order to deduce the existence
of customary rules, the Court deems it sufficient that the conduct
of States should, in general, be consistent with such rules, and
that instances of State conduct inconsistent with a given rule
should generally have been treated as breaches of that rule, not as
indications of the recognition of a new rule.
If a State acts in a way prima facie incompatible with a
recognized rule, but defends its conduct by appealing to exceptions
or justifications contained within the rule itself, then whether or
not the States conduct is in fact justifiable on that basis, the
significance of that attitude is to confirm rather than to weaken
the rule. (para 186)
15. The Nicaragua jurisprudence explained how one could deduct
opinio juris from acts of State. The Court held that opinio juris
could be deduced from:
- the attitude of States towards certain General Assembly
resolutions. For example, the Declaration on Principles of
International Law concerning Friendly Relations (hereafter called
the Declaration on Friendly Relations). The Court held that:
The effect of consent to the text of such resolutions cannot be
understood as merely that of a reiteration or elucidation of the
treaty commitment undertaken in the Charter. On the contrary, it
may be understood as an acceptance of the validity of the rule or
set of rules declared by the resolution by themselvesIt would
therefore seem apparent that the attitude referred to expresses an
opinio juris respecting such rule (or set of rules), to be
thenceforth treated separately from the provisions, especially
those of an institutional kind, to which it is subject on the
treaty-law plane of the Charter
- Statements by State representatives.
- Obligations undertaken by participating States in
international forums (the Court provided the example of the
Conference on Security and Co-operation in Europe, Helsinki)
- The International Law Commissions findings that a concept
amounts to a customary law principle.
- Multilateral conventions.
NB: The fact that the Court relied on resolutions of the United
Nations to deduct opinio juris was subject to criticism. As you
know, opinio juris is the subjective element necessary to form
customary law. Opinio juris is reflected in instances where the
State undertakes a particular practice because it believes that it
is legally bound to do so. Voting patterns in the United Nations
are often guided by policy considerations over legal merits. The
General Assemblys subject matter is more policy oriented than legal
(for which we have the 6th Committee). For example, when the United
States voted for the Friendly Relations Declaration it stated on
record its belief that the Declaration was only a statement of
political intention and not an expression of the law. This is not
to say that provisions on General Assembly Resolutions that guide
the international community to act in a certain way may not
eventually become binding international law (either by attaining
customary law status or becoming codified into treaty law). It can,
if there is adequate State practice and opinio juris. The argument
is that opinio juris cannot be said to exist based merely on a vote
in favour of a non-binding resolution in the absence of an
examination of subsequent consistent and general State practice
(which, in turn, reflects or confirms opinio juris).
Customary international law relating to principles of
non-intervention
16. The Court held that Principles such as those of the non-use
of force (para 191), non-intervention (para 192), respect for the
independence and territorial integrity of States, right of
collective self defence (para 193) and the freedom of navigation,
continue to be binding as part of customary international law,
despite the operation of provisions of conventional law in which
they have been incorporated (text in brackets added).
17. The Courts finding that principle of non-intervention formed
a part of customary international law invited criticism from
commentators, partly because they disagreed that the principle
formed customary international law and partly because of the Courts
own contradictions in coming to its conclusions and inadequacy of
analysis (see below). The Courts contradiction stems from this
statement: The principle of non-intervention involves the right of
every sovereign State to conduct its affairs without outside
interference; though examples of trespass against this principle
are not infrequent, the Court considers that it is part and parcel
of customary international law(emphasis added. Para 202).
18. The Court began its analysis with two questions:
Notwithstanding the multiplicity of declarations by States
accepting the principle of non-intervention, there remain two
questions: first, what is the exact content of the principle so
accepted, and secondly, is the practice sufficiently in conformity
with it for this to be a rule of customary international law? The
first question was discussed in a previous post and will not be
discussed here.
18. Although the question seemed to direct the Court towards
identifying an existing custom, in its response the Court seemed to
have already determined that the customary law prohibition of
non-intervention existed. In the following passage the Court
deliberates if, in contrast, a customary law right to intervention
had evolved.
There have been in recent years a number of instances of foreign
intervention for the benefit of forces opposed to the government of
another State. The Court is not here concerned with the process of
decolonisation It has to consider whether there might be
indications of a practice illustrative of belief in a kind of
general right for States to intervene, directly or indirectly, with
or without armed force, in support of an internal opposition in
another State, whose cause appeared particularly worthy by reason
of the political and moral values with which it was identified. For
such a general right to come into existence would involve a
fundamental modification of the customary law principle of
non-intervention. (paras 206, 207).
19. The Court went on to hold, as before, that for a new
customary rule to be formed, not only must the acts concerned
amount to a settled practice, but they must be accompanied by the
opinio juris sive necessitates.
The significance for the Court of cases of State conduct prima
facie inconsistent with the principle of non-intervention lies in
the nature of the ground offered as justification. Reliance by a
State on a novel right or an unprecedented exception to the
principle might, if shared in principle by other States, tend
towards a modification of customary international law. In fact
however the Court finds that States have not justified their
conduct by reference to a new right of intervention or a new
exception to the principle of its prohibition. The United States
authorities have on some occasions clearly stated their grounds for
intervening in the affairs of a foreign State for reasons connected
with, for example, the domestic policies of that country, its
ideology, the level of its armaments, or the direction of its
foreign policy. But these were statements of international policy,
and not an assertion of rules of existing international law.
20. The Court also noted that the United States has not sought
to justify its intervention in Nicaragua on legal grounds, but had
only justified it at a political level. The United States had not
asserted for itself legal right of intervention in these
circumstances. The Court, without further analysis into State
practice, almost immediately proceeded to find that no such general
right of intervention, in support of an opposition within another
State, exists in contemporary international law. The Court
concludes that acts constituting a breach of the customary
principle of non-intervention will also, if they directly or
indirectly involve the use of force, constitute a breach of the
principle of non-use of force in international relations (para
209).
Development of a parallel customary international law?
In addition to the comments made above in italics, another
interesting aspect of the judgment is that it sought to divorce
customary international law obligation from the identical treaty
obligation because of the jurisdictional bar to consider
multilateral treaties. In its consideration of customary
international law it developed certain principles independently of
the treaty. For example, Article 2(4) of the UN Charter prohibits
the threat or use of force against another State. The Court held
that the same prohibition on the use of force could be found under
customary international law and as a jus cogens norm. The Court
then went on to categorize the use of force under customary law as
either a grave use of force (i.e. use of force amounting to an
armed attack) or a less grave use of force (i.e. use of force that
falls short of an armed attack for example, the threat to use
force). The Court, then, restricted the right of self-defense to a
situation where there had been a grave use of force (or an armed
attack, as defined by the Court). If one were to hold that the
relevant Charter principles were clear, precise and unambiguous,
one could say this divorced interpretation could result in
customary law developing in a manner that is not in line with the
Charter and thereby creating separate rights/ regimes of law that
govern the same subject matter. This is because, then, the two
regimes would be irreconcilable. However, the fact remains that the
Charter does leave room for interpretation for example, on the
definition of an armed attack or on the use of force. In cases of
ambiguity, Article 31 of the Vienna Convention on the Law of
Treaties directs us to look at, inter alia, subsequent practice and
any relevant rules of international law that maybe applicable. In
other words, a treaty can be interpreted with the assistance of
customary and general principles of international law. In this
case, the development of customary law would also mean a potential
development of ambiguous treaty law and a reconciliation of treaty
and customary law provisions.
ASYLUM CASE Name of the Case: Asylum Case (Columbia/Peru); Year
of the decision: 1950; and Court: ICJ.
Overview:
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 Courts 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 Torres 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 refugeebut 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.
Torres 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.
CASE CONCERNING RIGHT OF PASSAGE OVER INDIAN TERRITORY
(MERITS)Judgment of 12 April 1960
The case concerning Right of Passage over Indian Territory
(Portugal v. India) was referred to the Court by an Application
filed on 22 December 1955. In that Application, the Government of
Portugal stated that its territory in the Indian Peninsula included
two enclaves surrounded by the Territory of India, Dadra and
Nagar-Aveli. It was in respect of the communications between those
enclaves and the coastal district of Daman, and between each other,
that the question arose of a right of passage in favour of Portugal
through Indian territory and of a correlative obligation binding
upon India. The Application stated that in July 1954 the Government
of India prevented Portugal from exercising that right of passage
and that Portugal was thus placed in a position in which it became
impossible for it to exercise its rights of sovereignty over the
enclaves.Following upon the Application, the Court was seised of
six preliminary objections raised by the Government of India. By a
Judgment given on 26 November 1957, the Court rejected the first
four objections and joined the fifth and sixth objections to the
Merits.
In its Judgment, the Court:(a) rejected the Fifth Preliminary
Objection by 13 votes to 2;(b) rejected the Sixth Preliminary
Objection by 11 votes to 4;(c) found, by 11 votes to 4, that
Portugal had in 1954 a right of passage over intervening Indian
territory between the enclaves of Dadra and Nagar-Aveli and the
coastal district of Daman and between these enclaves, to the extent
necessary for the exercise of Portuguese sovereignty over the
enclaves and subject to the regulation and control of India, in
respect of private persons, civil of officials and goods in
general;(d) found, by 8 votes to 7, that Portugal did not have in
1954 such a right of passage in respect of armed forces, armed
police and arms and ammunition;(e) found, by 9 votes to 6, that
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.The President and Judges Basdevant,
Badawi, Kojevnikov and Spiropoulos appended Declarations to the
Judgment of the Court. Judge Wellington Koo appended a Separate
Opinion. Judges Winiarski and Badawi appended a Joint Dissenting
Opinion. Judges Armand-Ugon, Moreno Quintana and Sir Percy Spender,
and Judges ad hoc Chagla and Fernandes, appended Dissenting
Opinions.
In its Judgment the Court referred to the Submissions filed by
Portugal which in the first place requested the Court to adjudge
and declare that a right of passage was possessed by Portugal and
must be respected by India; this right was invoked by Portugal only
to the extent necessary for the exercise of its sovereignty over
the enclaves, and it was not contended that passage was accompanied
by any immunity and made clear that such passage remained subject
to the regulation and control of India, which must be exercised in
good faith, India being under an obligation not to prevent the
transit necessary for the exercise of Portuguese sovereignty. The
Court then considered the date with reference to which it must
ascertain whether the right invoked existed or did not exist. The
question as to the existence of a right of passage having been put
to the Court in respect of the dispute which had arisen with regard
to obstacles placed by India in the way of passage, it was the eve
of the creation of those obstacles that must be selected as the
standpoint from which to certain whether or not such a right
existed; the selection of that date would leave open the arguments
of India regarding the subsequent lapse of the right of
passage.
Portugal next asked the Court to adjudge and declare that India
had not complied with the obligations incumbent upon it by virtue
of the right of passage. But the Court pointed out that it had not
been asked, either in the Application or in the final Submissions
of the Parties, to decide whether or not India's attitude towards
those who had instigated the over-throw of Portuguese authority at
Dadra and Nagar-Aveli in July and August 1954 constituted a breach
of the obligation, said to be binding upon it under general
international law, to adopt suitable measures to prevent the
incursion of subversive elements into the territory of another
State.
Turning then to the future, the Submissions of Portugal
requested the Court to decide that India must end the measures by
which it opposed the exercise of the right of passage or, if the
Court should be of opinion that there should be a temporary
suspension of the right, to hold that that suspension should end as
soon as the course of events disclosed that the justification for
the suspension had disappeared. Portugal had previously invited the
Court to hold that the arguments of India concerning its right to
adopt an attitude of neutrality, the application of the United
Nations Charter and the existence in the enclaves of a local
government were without foundation. The Court, however, considered
that it was no part of its judicial function to declare in the
operative part of its Judgment that any of those arguments was or
was not well founded.
***
Before proceeding to the consideration of the Merits, the Court
had to ascertain whether it had jurisdiction to do so, a
jurisdiction which India had expressly contested.
In its Fifth Preliminary Objection the Government of India
relied upon the reservation in its Declaration of 28 February 1940
accepting the jurisdiction of the Court, which excluded from that
jurisdiction disputes with regard to questions which by
international law fall exclusively within the jurisdiction of
India. The Court pointed out that in the course of the proceedings
both Parties had taken their stand on grounds which were on the
plane of international law, and had on occasion expressly said so.
The fifth objection could not therefore be upheld.
The Sixth Preliminary Objection likewise related to a limitation
in the Declaration of 28 February 1940. India, which had accepted
the jurisdiction of the Court "over all disputes arising after
February 5th, 1930, with regard to situations or facts subsequent
to the same date", contended that the dispute did not satisfy
either of these two conditions. As to the first condition, the
Court pointed out that the dispute could not have arisen until all
its constituent elements had come into existence; among these were
the obstacles which India was alleged to have placed in the way of
exercise of passage by Portugal in 1954; even if only that part of
the dispute relating to the Portuguese claim to a right of passage
were to be considered, certain incidents had occurred before 1954,
but they had not led the Parties to adopt clearly-defined legal
positions as against each other; accordingly, there was no
justification for saying that the dispute arose before 1954. As to
the second condition, the Permanent Court of International Justice
had in 1938 drawn a distinction between the situations or facts
which constituted the source of the rights claimed by one of the
Parties, and the situations or facts which were the source of the
dispute. Only the latter were to be taken into account for the
purpose of applying the Declaration. The dispute submitted to the
Court was one with regard to the situation of the enclaves, which
had given rise to Portugal's claim to a right of passage and, at
the same time, with regard to the facts of 1954 which Portugal
advanced as infringements of that right; it was from all of this
that the dispute arose, and this whole, whatever may have been the
earlier origin of one of its parts, came into existence only after
5 February 1930. The Court had not been asked for any finding
whatsoever with regard to the past prior to that date; it was
therefore of opinion that the sixth objection should not be upheld
and, consequently, that it had jurisdiction.
***
On the merits, India had contended in the first place that the
right of passage claimed by Portugal was too vague and
contradictory to enable the Court to pass judgment upon it by the
application of the legal rules enumerated in Article 38 (1) of the
Statute. There was no doubt that the day-to-day exercise of the
right might give rise to delicate questions of application but that
was not, in the view of the Court, sufficient ground for holding
that the right was not susceptible of judicial
determination.Portugal had relied on the Treaty of Poona of 1779
and on sanads (decrees) issued by the Maratha ruler in 1783 and
1785, as having conferred on Portugal sovereignty over the enclaves
with the right of passage to them; India had objected that what was
alleged to be the Treaty of 1779 was not validly entered into and
never became in law a treaty binding upon the Marathas. The Court,
however, found that the Marathas did not at any time cast any doubt
upon the validity or binding character of the Treaty. India had
further contended that the Treaty and the two sanads did not
operate to transfer sovereignty over the assigned villages to
Portugal but only conferred, with respect to the villages, a
revenue grant. The Court was unable to conclude from an examination
of the various texts of the Treaty of 1779 that the language
employed therein was intended to transfer sovereignty; the
expressions used in the two sanads, on the other hand, established
that what was granted to the Portuguese was only a revenue tenure
called a jagir or saranjam, and not a single instance had been
brought to the notice of the Court in which such a grant had been
construed as amounting to a cession of sovereignty. There could,
therefore, be no question of any enclave or of any right of passage
for the purpose of exercising sovereignty over enclaves.The Court
found that the situation underwent a change with the advent of the
British as sovereign of that part of the country in place of the
Marathas: Portuguese sovereignty over the villages had been
recognized by the British in fact and by implication and had
subsequently been tacitly recognized by India. As a consequence the
villages had acquired the character of Portuguese enclaves within
Indian territory and there had developed between the Portuguese and
the territorial sovereign with regard to passage to the enclaves a
practice upon which Portugal relied for the purpose of establishing
the right of passage claimed by it. It had been objected on behalf
of India that no local custom could be established between only two
States, but the Court found it difficult to see why the number of
States between which a local custom might be established on the
basis of long practice must necessarily be larger than two.
It was common ground between the Parties that during the British
and post-British periods the passage of private persons and civil
officials had not been subject to any restrictions beyond routine
control. Merchandise other than arms and ammunition had also passed
freely subject only, at certain times, to customs regulations and
such regulation and control as were necessitated by considerations
of security or revenue. The Court therefore concluded that, with
regard to private persons, civil officials and goods in general
there had existed a constant and uniform practice allowing free
passage between Daman and the enclaves, it was, in view of all the
circumstances of the case, satisfied that that practice had been
accepted as law by the Parties and had given rise to a right and a
correlative obligation.
As regards armed forces, armed police and arms and ammunition,
the position was different.
It appeared that, during the British and post-British periods,
Portuguese armed forces and armed police had not passed between
Daman and the enclaves as of right, and that after 1878 such
passage could only take place with previous authorization by the
British and later by India, accorded either under a reciprocal
arrangement already agreed to, or in individual cases: it had been
argued that that permission was always granted, but there was
nothing in the record to show that grant of permission was
incumbent on the British or on India as an obligation.A treaty of
26 December 1878 between Great Britain and Portugal had laid down
that the armed forces of the two Governments should not enter the
Indian dominions of the other, except in specified cases or in
consequence of a formal request made by the party desiring such
entry. Subsequent correspondence showed that this provision was
applicable to passage between Daman and the enclaves: it had been
argued on behalf of Portugal that on twenty-three occasions armed
forces crossed British territory between Daman and the enclaves
without obtaining permission, but in 1890, the Government of Bombay
had forwarded a complaint to the effect that armed men in the
service of the Portuguese Government were in the habit of passing
without formal request through a portion of British territory en
route from Daman to Nagar-Aveli which would appear to constitute a
breach of the Treaty; on 22 December, the Governor-General of
Portuguese India had replied: "Portuguese troops never cross
British territory without previous permission", and the
Secretary-General of the Government of Portuguese India stated on 1
May 1891: "On the part of this Government injunctions will be given
for the strictest observance of . . . the Treaty". The requirement
of a formal request before passage of armed forces could take place
had been repeated in an agreement of 1913. With regard to armed
police, the Treaty of 1878 and the Agreement of 1913 had regulated
passage on the basis of reciprocity, and an agreement of 1920 had
provided that armed police below a certain rank should not enter
the territory of the other party without consent previously
obtained; finally, an agreement of 1940 concerning passage of
Portuguese armed police over the road from Daman to Nagar-Aveli had
provided that, if the party did not exceed ten in number,
intimation of its passage should be given to the British
authorities within twenty-four hours, but that, in other cases,
"the existing practice should be followed and concurrence of the
British authorities should be obtained by prior notice as
heretofore."
As regards arms and ammunition, the Treaty of 1878 and rules
framed under the Indian Arms Act of 1878 prohibited the importation
of arms, ammunition or military stores from Portuguese India and
its export to Portuguese India without a special licence.
Subsequent practice showed that this provision applied to transit
between Daman and the enclaves.
The finding of the Court that the practice established between
the Parties had required for the passage of armed forces, armed
police and arms and ammunition the permission of the British or
Indian authorities rendered it unnecessary for the Court to
determine whether or not, in the absence of the practice that
actually prevailed, general international custom or general
principles of law recognized by civilized nations, which had also
been invoked by Portugal, could have been relied upon by Portugal
in support of its claim to a right of passage in respect of these
categories. The Court was dealing with a concrete case having
special features: historically the case went back to a period when,
and related to a region in which, the relations between
neighbouring States were not regulated by precisely formulated
rules but were governed largely by practice: finding a practice
clearly established between two States, which was accepted by the
Parties as governing the relations between them, the Court must
attribute decisive effect to that practice. The Court was,
therefore, of the view that no right of passage in favour of
Portugal involving a correlative obligation on India had been
established in respect of armed forces, armed police and arms and
ammunition.
Having found that Portugal had, in 1954, a right of passage in
respect of private persons, civil officials and goods in general,
the Court lastly proceeded to consider whether India had acted
contrary to its obligation resulting from Portugal's right of
passage in respect of any of these categories. Portugal had not
contend