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#1. Qatar vs Bahrain * Treaties. While treaties are generally in written form, there are writers who hold that even an oral agreement can be binding. However, only written agreements that are new come under the provisions of the Vienna Convention. No particular form is prescribed. Facts:

On 8 July 1991 Qatar filed in the Registry of the Court an Application instituting proceedings against Bahrain in respect of certain disputes between the two States relating to "sovereignty over the Hawar islands, sovereign rights over the shoals of Dibal and Qit'at Jaradah, and the delimitation of the maritime areas of the two States". Qatar contended that the Court had jurisdiction to entertain the dispute by virtue of two "agreements" concluded between the Parties in December 1987 and December 1990 respectively, the subject and scope of the commitment to the Court's jurisdiction being determined, according to the Applicant, by a formula proposed by Bahrain to Qatar on 26 October 1988 and accepted by Qatar in December 1990 (hereinafter referred to as the "Bahraini formula"). By letters of 14 July and 18 August 1991, Bahrain contested the basis of jurisdiction invoked by Qatar.

By a Judgment of 1 July 1994, the Court found that the exchanges of letters between

the King of Saudi Arabia and the Amir of Qatar of 19 and 21 December 1987, and between the King of Saudi Arabia and the Amir of Bahrain of 19 and 26 December 1987, and the document headed "Minutes" and signed at Doha on 25 December 1990 by the Ministers for Foreign Affairs of Bahrain, Qatar and Saudi Arabia, were international agreements creating rights and obligations for the Parties; and that, by the terms of those agreements, the Parties had undertaken to submit to the Court the whole of the dispute between them, as circumscribed by the Bahraini formula.

The Court decided to afford the Parties the opportunity to submit to it the whole of

the dispute. After each of the Parties had filed a document on the question within the time-limit fixed, the Court, by a Judgment of 15 February 1995, found that it had jurisdiction to adjudicate upon the dispute between Qatar and Bahrain which had been submitted to it; that it was now seised of the whole of the dispute; and that the Application of the State of Qatar as formulated on 30 November 1994 was admissible. In the course of the written proceedings on the merits, Bahrain challenged the authenticity of 82 documents produced by Qatar as annexed to its pleadings.

Arguments: On the part of the Bahrains (D) Foreign Minister, he argued that no agreement existed because he never intended to enter an agreement fails on the grounds that he signed documents creating rights and obligations for his country. Also, Qatars (P) delay in applying to the United Nations Secretariat does not indicate that Qatar (P) never considered the Minutes to be an international agreement as Bahrain (D) argued. However, the registration and non-registration with the Secretariat does not have any effect on the validity of the agreement. Issue:

Whether or not an international agreement creating rights and obligations can be constituted by the signatories to the minutes of meetings and letters exchanged.

Held:

Yes. An international agreement creating rights and obligations can be constituted by the signatories to the minutes of meetings and letters exchanged. Though Bahrain (D) argued

that the Minutes were only a record of negotiation and could not serve as a basis for the I.C.J.s jurisdiction, both parties agreed that the letters constituted an international agreement with binding force. International agreements do not take a single form under the Vienna Convention on the Law of Treaties, and the Court has enforced this rule in the past.

In this case, the Minutes not only contain the record of the meetings between the

parties, it also contained the reaffirmation of obligations previously agreed to and agreement to allow the King of Saudi Arabia to try to find a solution to the dispute during a six-month period, and indicated the possibility of the involvement of the I.C.J. The Minutes stipulated commitments to which the parties agreed, thereby creating rights and obligations in international law.

This is the basis therefore of the existence of international agreement. Additional information: There is no doubt that language plays a vital role in

influencing a courts decision as to whether an agreement has been entered into and in this particular case, the language was the main focus of the I.C.J and it was the contents of the Minutes that persuaded the I.C.J. to reject the Bahrain foreign ministers claim that he did not intend to enter into an agreement. Where this is compared to general U.S. contract law, where a claim by one of the parties that no contract existed because there was no meeting of the minds might be the ground upon which a U.S. court would consider whether a contract did exist with more care and thought than the I.C.J. gave the foreign minister of Bahrains claims.

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#3. NUCLEAR TESTS CASE (NEW ZEALAND v. FRANCE) Judgment of 20 December 1974 FACTS: France was a signatory to the Nuclear Test Ban Treaty and thus, continued to conduct tests in the South Pacific until 1973. Australia and New Zealand instituted proceedings against France to order it to cease from carrying out such tests. However, the case was removed from the Courts list without a decision due to Frances statements contained in a communique which was issued by the Office of the President of the French Republic on 8 June 1974 and transmitted in particular to New Zealand: ". . . in view of the stage reached in carrying out the French nuclear defence programme France will be in a position to pass on to the stage of underground explosions as soon as the series of tests planned for this summer is completed". Further statements are contained in a Note from the French Embassy in Wellington (10 June), a letter from the President of France to the Prime Minister of New Zealand (1 July), a press conference given by the President of the Republic (25 July), a speech made by the Minister for Foreign Affairs in the United Nations General Assembly (25 September) and a television interview and press conference by the Minister for Defence (16 August and 11 October). The Court considers that these statements convey an announcement by France of its intention to cease the conduct of atmospheric nuclear tests following the conclusion of the 1974 series. ISSUE: WON the unilateral declaration made by France creates legal obligations. RULING: It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Nothing in the nature of a quid pro quo, nor any subsequent acceptance, nor even any reaction from other States is required for such declaration to take effect. Neither is the question of form decisive. The intention of being bound is to be ascertained by an interpretation of the act. The binding character of the undertaking results from the terms of the act and is based on good faith interested States are entitled to require that the obligation be respected. In the present case, New Zealand, while recognizing the possibility of the dispute being resolved by a unilateral declaration on the part of France, has stated that, in its view, the possibility of further atmospheric tests has been left open, even after the French statements mentioned above. The Court must, however, form its own view of the meaning and scope intended to be given to these unilateral declarations. Having regard to their intention and to the circumstances in which they were made, they must be held to constitute an engagement of the French State. France has conveyed to the world at large, including New Zealand, its intention effectively to terminate its atmospheric tests. It was bound to assume that other States might take note of these statements and rely on their being effective. It is true that France has not recognized that it is bound by any rule of international law to terminate its tests, but this does not affect the legal consequences of the statements in question, the unilateral undertaking resulting from them cannot be interpreted as having been made in implicit reliance on an arbitrary power of reconsideration. Thus the Court faces a situation in which the objective of New Zealand has in effect been accomplished, inasmuch as the Court finds that France has undertaken the obligation to hold no further nuclear tests in the atmosphere in the South Pacific. New Zealand has sought an assurance from France that the tests would cease and France, on its own initiative, has made a series of statements to the effect that they will cease. The Court concludes that France has assumed an obligation as to conduct, concerning the effective cessation of the tests, and the

fact that New Zealand has not exercised its right to discontinue the proceedings does not prevent the Court from making its own independent finding on the subject. As a court of law, it is called upon to resolve existing disputes between States: these disputes must continue to exist at the time when the Court makes its decision. In the present case, the dispute having disappeared, the claim no longer has any object and there is nothing on which to give judgment.

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#4. AIR FRANCE v. SAKS 470 U.S. 392 (1985)

Article 17 of the Warsaw Convention makes air carriers liable for injuries sustained by a passenger "if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking." We granted certiorari to resolve a conflict among the Courts of Appeals as to the proper definition of the word "accident" as used in this international air carriage treaty. Facts:

On November 16, 1980, respondent Valerie Saks boarded an Air France jetliner in Paris for a 12-hour flight to Los Angeles. The flight went smoothly in all respects until, as the aircraft descended to Los Angeles, Saks felt severe pressure and pain in her left ear. The pain continued after the plane landed, but Saks disembarked without informing any Air France crewmember or employee of her ailment. Five days later, Saks consulted a doctor who concluded that she had become permanently deaf in her left ear. Saks filed suit against Air France in California state court, alleging that her hearing loss was caused by negligent maintenance and operation of the jetliner's pressurization system.

After extensive discovery, Air France moved for summary judgment on the ground that respondent could not prove that her injury was caused by an "accident" within the meaning of the Warsaw Convention. The term "accident," according to Air France, means an "abnormal, unusual or unexpected occurrence aboard the aircraft." All the available evidence, including the post flight reports, pilot's affidavit, and passenger testimony, indicated that the aircraft's pressurization system had operated in the usual manner. Accordingly, the airline contended that the suit should be dismissed because the only alleged cause of respondent's injury - normal operation of a pressurization system - could not qualify as an "accident."

In her opposition to the summary judgment motion, Saks acknowledged that "[t]he sole question of law presented . . . by the parties is whether a loss of hearing proximately caused by normal operation of the aircraft's pressurization system is an accident within the meaning of Article 17 of the Warsaw Convention . . . ." She argued that "accident" should be defined as a "hazard of air travel," and that her injury had indeed been caused by such a hazard.

Relying on precedent which defines the term "accident" in Article 17 as an "unusual or unexpected" happening, the District Court granted summary judgment to Air France.

The Court of Appeals reversed the District Courts judgment. The court found a definition of "accident" consistent with this history and policy in Annex 13 to the Convention on International Civil Aviation, "an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight and all such persons have disembarked . . . ." Normal cabin pressure changes qualify as an "accident" under this definition. Issue: Whether respondents injury was caused by an accident under Article 17 of the Warsaw Convention (thereby making petitioner liable thereto)

(Whether the normal operation of a normal pressurization system could qualify as an accident under Article 17) Ruling: No. (No.)

Air France is liable to a passenger under the terms of the Warsaw Convention only if the passenger proves that an "accident" was the cause of her injury.

The narrow issue presented is whether respondent can meet this burden by showing that her injury was caused by the normal operation of the aircraft's pressurization system. The proper answer turns on interpretation of a clause in an international treaty to which the United States is a party.

"[T]reaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties." The analysis must begin, however, with the text of the treaty and the context in which the written words are used. A.

Article 17 of the Warsaw Convention establishes the liability of international air carriers for harm to passengers. Article 18 contains parallel provisions regarding liability for damage to baggage. The governing text of the Convention is in the French language, and we accordingly set forth the French text of the relevant part of Articles 17 and 18 in the margin. The official American translation of this portion of the text, which was before the Senate when it ratified the Convention in 1934, reads as follows:

Article17. "The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Article18. "The carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air." Two significant features of these provisions stand out in both the French and the

English texts. First, Article 17 imposes liability for injuries to passengers caused by an "accident," whereas Article 18 imposes liability for destruction or loss of baggage caused by an "occurrence." This difference in the parallel language of Articles 17 and 18 implies that the drafters of the Convention understood the word "accident" to mean something different than the word "occurrence," for they otherwise logically would have used the same word in each article. The language of the Convention accordingly renders suspect the opinion of the Court of Appeals that "accident" means "occurrence."

Second, the text of Article 17 refers to an accident which caused the passenger's injury, and not to an accident which is the passenger's injury.

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In Article 17, the drafters of the Warsaw Convention apparently did make an attempt to discriminate between "the cause and the effect"; they specified that air carriers would be liable if an accident caused the passenger's injury. The text of the Convention thus implies that, however we define "accident," it is the cause of the injury that must satisfy the definition rather than the occurrence of the injury alone. American jurisprudence has long recognized this distinction between an accident that is the cause of an injury and an injury that is itself an accident.

While the text of the Convention gives these two clues to the meaning of "accident," it does not define the term. To determine the meaning of the term "accident" in Article 17 we must consider its French legal meaning. We look to the French legal meaning for guidance as to these expectations because the Warsaw Convention was drafted in French by continental jurists.

A survey of French cases and dictionaries indicates that the French legal meaning of the term "accident" differs little from the meaning of the term in Great Britain, Germany, or the United States. Thus, while the word "accident" is often used to refer to the event of a person's injury, it is also sometimes used to describe a cause of injury, and when the word is used in this latter sense, it is usually defined as a fortuitous, unexpected, unusual, or unintended event. B.

This interpretation of Article 17 is consistent with the negotiating history of the Convention, the conduct of the parties to the Convention, and the weight of precedent in foreign and American courts. In interpreting a treaty it is proper, of course, to refer to the records of its drafting and negotiation.

The records of the negotiation of the Convention accordingly support what is evident from its text: A passenger's injury must be caused by an accident, and an accident must mean something different than an "occurrence" on the plane. Like the text of the Convention, however, the records of its negotiation offer no precise definition of "accident."

In determining precisely what causes can be considered accidents, we "find the opinions of our sister signatories to be entitled to considerable weight." A French court observed that the term "accident" in Article 17 of the Warsaw Convention embraces causes of injuries that are fortuitous or unpredictable. European legal scholars have generally construed the word "accident" in Article 17 to require that the passenger's injury be caused by a sudden or unexpected event other than the normal operation of the plane.

**We conclude that liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries. In cases where there is contradictory evidence, it is for the trier of fact to decide whether an "accident" as here defined caused the passenger's injury. But when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply. The judgment of the Court of Appeals in this case must accordingly be reversed.

Any injury is the product of a chain of causes, and we require only that the passenger

be able to prove that some link in the chain was an unusual or unexpected event external to the passenger. Until Article 17 of the Warsaw Convention is changed by the signatories, it cannot be stretched to impose carrier liability for injuries that are not caused by accidents. It remains "[o]ur duty . . . to enforce the . . . treaties of the United States, whatever they might be, and . . . the Warsaw Convention remains the supreme law of the land." The judgment of the Court of Appeals is reversed.

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#5. FISHERIES JURISDICTION CASE (FEDERAL REPUBLIC OF GERMANY v. ICELAND)

A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty

FACTS

The Federal Republic of Germany instituted a proceedings against the Republic of Iceland in respect of a dispute concerning the then proposed extension by the Government of Iceland of its fisheries jurisdiction. In order to found the jurisdiction of the Court, the Application relied on Article 36, paragraph 1, of the Statute of the Court, on an Exchange of Notes between the Government of the Federal Republic and the Government of Iceland dated 19 July 1961

The Exchange of Notes of 1961 contains the provision:

"The Government of the Republic of Iceland shall continue to work for the implementation of the Althing Resolution of 5 May 1959, regarding the extension of the fishery jurisdiction of Iceland. However, it shall give the Government of the Federal Republic of Germany six months' notice of any such extension; in case of a dispute relating to such an extension, the matter shall, at the request of either Party, be referred to the International Court of Justice

Iceland was not willing to submit to the jurisdiction of the ICJ by not submitting any

pleading or appointing an agent. The Government of Iceland is basing itself on the principle of termination of a treaty by reason of change of circumstances. International law admits that a fundamental change in the circumstances which determined the parties to accept a treaty, if it has resulted in a radical transformation of the extent of the obligations imposed by it, may, under certain conditions, afford the party affected a ground for invoking the termination or suspension of the treaty.

This principle, and the conditions and exceptions to which it is subject, have been

embodied in Article 62 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances. Such change in circumstances terminated its obligation to submit such dispute to the ICJ.

ISSUE Whether or not ICJ has jurisdiction over the dispute? RULING

Yes, ICJ has jurisdiction One of the basic requirements embodied in that Article is that the change of

circumstances must have been a fundamental one. In this respect the Government of Iceland has, with regard to developments in fishing techniques, referred in an officia1 publication on Fisheries Jurisdiction in Iceland, enclosed with the Foreign Minister's letter to the Registrar of 27 June 1972, to the increased exploitation of the fishery resources in the seas surrounding

Iceland and to the danger of still further exploitation because of an increase in the catching capacity of fishing fleets

Moreover, in order that a change of circumstances may give rise to a ground for

invoking the termination of a treaty it is also necessary that it should have resulted in a radical transformation of the extent of the obligations still to be performed. The change must have increased the burden of the obligations to be executed to the extent of rendering the performance something essentially different from that originally undertaken.

In respect of the obligation with which the Court is here concerned, this condition is

wholly unsatisfied; the change of circumstances alleged by Iceland cannot be said to have transformed radically the extent of the jurisdictional obligation which is imposed in the 1961 Exchange of Notes. The compromissory clause enabled either of the parties to submit to the Court any dispute between them relating to an extension of Icelandic fisheries jurisdiction in the waters above its continental shelf beyond the 12-mile limit. The present dispute is exactly of the character anticipated in the compromissory clause of the Exchange of Notes. Not only has the jurisdictional obligation not been radically transformed in its extent; it has remained precisely what it was in 1961.

The Applicant, in the oral proceedings, advanced the contention that the assertion of

changed circumstances does not, ipso facto, release the State invoking them from its treaty obligation unless it has been established, either by consent of the other party or by judicial or other settlement between the parties, that the changed circumstances are of a kind which justifies release from existing treaty obligations.

In the present case, the procedural complement to the doctrine of changed

circumstances is provided for in the 1961 Exchange of Notes, which specifically calls upon the parties to have recourse to the Court in the event of a dispute relating to Iceland's extension of fisheries jurisdiction. Furthermore, any question as to the jurisdiction of the Court, deriving from an alleged lapse through changed circumstances, is resolvable through the accepted judicial principle enshrined in Article 36, paragraph 6, of the Court's Statute, which provides that "in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court".

In this case such a dispute obviously exists, as can be seen from Iceland's

communications to the Court, and to the other Party, even if Iceland has chosen not to appoint an Agent, file a Counter-Memorial or submit preliminary objections to the Court's jurisdiction; and Article 53 of the Statute both entitles the Court and, in the present proceedings, requires it to pronounce upon the question of its jurisdiction. This it has now done with binding force.

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#6. LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF SOUTH AFRICA IN NAMIBIA (SOUTH-WEST AFRICA) NOTWITHSTANDING SECURITY COUNCIL RESOLUTION 276 (1970) Advisory Opinion of 21 June 1971

In its advisory opinion on the question put by the Security Council of the United Nations, "What are the legal consequences for States of the continued presence of South Africa in Namibia notwithstanding Security Council resolution 276 (1970)?", the Court was of opinion, by 13 votes to 2,

(1) that, the continued presence of South Africa in Namibia being illegal, South Africa is under obligation to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory; by 11 votes to 4,

(2) that States Members of the United Nations are under obligation to recognize the illegality of South Africa's presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts and in particular any dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, such presence and administration;

(3) that it is incumbent upon States which are not Members of the United Nations to give assistance, within the scope of subparagraph (2) above, in the action which has been taken by the United Nations with regard to Namibia.

Objections against the Court's Dealing with the Question (paras. 19-41 of the Advisory Opinion)

The Government of South Africa contended that the Court was not competent to deliver the opinion, because Security Council resolution 284 (1970) was invalid for the following reasons: (a) two permanent members of the Council abstained during the voting (Charter of the United Nations, Art. 27, para. 3); (b) as the question related to a dispute between South Africa and other Members of the United Nations, South Africa should have been invited to participate in the discussion (Charter, Art. 32) and the proviso requiring members of the Security Council which are parties to a dispute to abstain from voting should have been observed (Charter, Art. 27, para. 3).

The Court points out that (a) for a long period the voluntary abstention of a

permanent member has consistently been interpreted as not constituting a bar to the adoption of resolutions by the Security Council; (b) the question of Namibia was placed on the agenda of the Council as a situation and the South African Government failed to draw the Council's attention to the necessity in its eyes of treating it as a dispute.

In the alternative the Government of South Africa maintained that even if the Court

had competence it should nevertheless, as a matter of judicial propriety, refuse to give the opinion requested, on account of political pressure to which it was contended, the Court had been or might be subjected. On 8 February 1971, at the opening of the public sittings, the President of the Court declared that it would not be proper for the Court to entertain those observations, bearing as they did on the very nature of the Court as the principal judicial organ of the United Nations, an organ which, in that capacity, acts only on the basis of law, independently of all outside influences or interventions whatsoever.

The Government of South Africa also advanced another reason for not giving the advisory opinion requested: that the question was in reality contentious, because it related to an existing dispute between South Africa and other States. The Court considers that it was asked to deal with a request put forward by a United Nations organ with a view to seeking legal advice on the consequences of its own decisions.

The fact that, in order to give its answer, the Court might have to pronounce on legal

questions upon which divergent views exist between South Africa and the United Nations does not convert the case into a dispute between States. (There was therefore no necessity to apply Article 83 of the Rules of Court, according to which, if an advisory opinion is requested upon a legal question "actually pending between two or more States", Article 31 of the Statute, dealing with judges ad hoc, is applicable; the Government of South Africa having requested leave to choose a judge ad hoc, the Court heard its observations on that point on 27 January 1971 but, in the light of the above considerations, decided by the Order of 29 January 1971 not to accede to that request.)

In sum, the Court saw no reason to decline to answer the request for an advisory opinion. History of the Mandate (paras. 42-86 of the Advisory Opinion)

Refuting the contentions of the South African Government and citing its own pronouncements in previous proceedings concerning South West Africa (Advisory Opinions of 1950, 1955 and 1956; Judgment of 1962), the Court recapitulates the history of the Mandate.

The mandates system established by Article 22 of the Covenant of the League of

Nations was based upon two principles of paramount importance: the principle of non-annexation and the principle that the well-being and development of the peoples concerned formed a sacred trust of civilisation. Taking the developments of the past half century into account, there can be little doubt that the ultimate objective of the sacred trust was self-determination and independence. The mandatory was to observe a number of obligations, and the Council of the League was to see that they were fulfilled. The rights of the mandatory as such had their foundation in those obligations.

When the League of Nations was dissolved, the raison d'etre and original object of

these obligations remained. Since their fulfilment did not depend on the existence of the League, they could not be brought to an end merely because the supervisory organ had ceased to exist. The Members of the League had not declared, or accepted even by implication, that the mandates would be cancelled or lapse with the dissolution of the League.

The last resolution of the League Assembly and Article 80, paragraph 1, of the United

Nations Charter maintained the obligations of mandatories. The International Court of Justice has consistently recognized that the Mandate survived the demise of the League, and South Africa also admitted as much for a number of years. Thus the supervisory element, which is an essential part of the Mandate, was bound to survive. The United Nations suggested a system of supervision which would not exceed that which applied under the mandates system, but this proposal was rejected by South Africa.

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Resolutions by the General Assembly and the Security Council (paras. 87-116 of the Advisory Opinion)

Eventually, in 1966, the General Assembly of the United Nations adopted resolution 2145 (XXI), whereby it decided that the Mandate was terminated and that South Africa had no other right to administer the Territory.

Subsequently the Security Council adopted various resolutions including resolution

276 (1970) declaring the continued presence of South Africa in Namibia illegal. Objections challenging the validity of these resolutions having been raised, the Court

points out that it does not possess powers of judicial review or appeal in relation to the United Nations organs in question. Nor does the validity of their resolutions form the subject of the request for advisory opinion. The Court nevertheless, in the exercise of its judicial function, and since these objections have been advanced, considers them in the course of its reasoning before determining the legal consequences arising from those resolutions.

It first recalls that the entry into force of the United Nations Charter established a

relationship between all Members of the United Nations on the one side, and each mandatory Power on the other, and that one of the fundamental principles governing that relationship is that the party which disowns or does not fulfill its obligations cannot be recognized as retaining the rights which it claims to derive from the relationship. Resolution 2145 (XXI) determined that there had been a material breach of the Mandate, which South Africa had in fact disavowed.

It has been contended (a) that the Covenant of the League of Nations did not confer

on the Council of the League power to terminate a mandate for misconduct of the mandatory and that the United Nations could not derive from the League greater powers than the latter itself had, (b) that, even if the Council of the League had possessed the power of revocation of the Mandate, it could not have been exercised unilaterally but only in co-operation with the Mandatory; (c) that resolution 2145 (XXI) made pronouncements which the General Assembly, not being a judicial organ, was not competent to make; (d) that a detailed factual investigation was called for (e) that one part of resolution 2145 (XXI) decided in effect a transfer of territory.

The Court observes (a) that, according to a general principle of international law

(incorporated in the Vienna Convention on the Law of Treaties), the right to terminate a treaty on account of breach must be presumed to exist in respect of all treaties, even if unexpressed; (b) that the consent of the wrongdoer to such a form of termination cannot be required; (c) that the United Nations, as a successor to the League, acting through its competent organ, must be seen above all as the supervisory institution competent to pronounce on the conduct of the Mandatory; (d) that the failure of South Africa to comply with the obligation to submit to supervision cannot be disputed; (e) that the General Assembly was not making a finding on facts, but formulating a legal situation; it would not be correct to assume that, because it is in principle vested with recommendatory powers, it is debarred from adopting, in special cases within the framework of its competence, resolutions which make determinations or have operative design.

The General Assembly, however, lacked the necessary powers to ensure the

withdrawal of South Africa from the Territory and therefore, acting in accordance with Article 11, paragraph 2, of the Charter, enlisted the co-operation of the Security Council. The Council

for its part, when it adopted the resolutions concerned, was acting in the exercise of what it deemed to be its primary responsibility for the maintenance of peace and security. Article 24 of the Charter vests in the Security Council the necessary authority. Its decisions were taken in conformity with the purposes and principles of the Charter, under Article 25 of which it is for member States to comply with those decisions, even those members of the Security Council which voted against them and those Members of the United Nations who are not members of the Council.

Legal Consequences for States of the Continued Presence of South Africa in Namibia (paras. 117-127 and 133 of the Advisory Opinion)

The Court stresses that a binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence.

South Africa, being responsible for having created and maintained that situation,

has the obligation to put an end to it and withdraw its administration from the Territory. By occupying the Territory without title, South Africa incurs international responsibilities arising from a continuing violation of an international obligation. It also remains accountable for any violations of the rights of the people of Namibia, or of its obligations under international law towards other States in respect of the exercise of its powers in relation to the Territory.

The member States of the United Nations are under obligation to recognize the

illegality and invalidity of South Africa's continued presence in Namibia and to refrain from lending any support or any form of assistance to South Africa with reference to its occupation of Namibia. The precise determination of the acts permitted - what measures should be selected, what scope they should be given and by whom they should be applied - is a matter which lies within the competence of the appropriate political organs of the United Nations acting within their authority under the Charter.

Thus it is for the Security Council to determine any further measures consequent

upon the decisions already taken by it. The Court in consequence confines itself to giving advice on those dealings with the Government of South Africa which, under the Charter of the United Nations and general international law, should be considered as inconsistent with resolution 276 (1970) because they might imply recognizing South Africa's presence in Namibia as legal:

(a) Member States are under obligation (subject to (d) below) to abstain from

entering into treaty relations with South Africa in all cases in which the Government of South Africa purports to act on behalf of or concerning Namibia. With respect to existing bilateral treaties member States must abstain from invoking or applying those treaties or provisions of treaties concluded by South Africa on behalf of or concerning Namibia which involve active intergovernmental co-operation. With respect to multilateral treaties, the same rule cannot be applied to certain general conventions such as those with humanitarian character, the non-performance of which may adversely affect the people of Namibia: it will be for the competent international organs to take specific measures in this respect.

(b) Member States are under obligation to abstain from sending diplomatic or special missions to South Africa including in their jurisdiction the territory of Namibia, to abstain from sending consular agents to Namibia, and to withdraw any such agents already there; and to

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make it clear to South Africa that the maintenance of diplomatic or consular relations does not imply any recognition of its authority with regard to Namibia.

(c) Member States are under obligation to abstain from entering into economic and

other forms of relations with South Africa on behalf of or concerning Namibia which may entrench its authority over the territory.

(d) However, non-recognition should not result in depriving the people of Namibia of

any advantages derived from international co-operation. In particular, the illegality or invalidity of actsperformed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate cannot be extended to such acts as the registration of births, deaths and marriages.

As to States not members of the United Nations, although they are not bound by

Articles 24 and 95 of the Charter, they have been called upon by resolution 276 (1970) to give assistance in the action which has been taken by the United Nations with regard to Namibia. In the view of the Court, the termination of the Mandate and the declaration of the illegality of South Africa's presence in Namibia are opposable to all States in the sense of barring erga omnes the legality of the situation which is maintained in violation of international law.

In particular, no State which enters into relations with South Africa concerning

Namibia may expect the United Nations or its Members to recognize the validity or effects of any such relationship. The Mandate having been terminated by a decision of the international organization in which the supervisory authority was vested, it is for non-member States to act accordingly. All States should bear in mind that the entity injured by the illegal presence of South Africa in Namibia is a people which must look to the international community for assistance in its progress towards the goals for which the sacred trust was instituted.

Accordingly, the Court has given the replies reproduced above on page 1.

Propositions by South Africa concerning the Supply of Further Factual Information and the Possible Holding of a Plebiscite (paras. 128-132 of the Advisory Opinion)

The Government of South Africa had expressed the desire to supply the Court with further factual information concerning the purposes and objectives of its policy of separate development, contending that to establish a breach of its substantive international obligations under the Mandate it would be necessary to prove that South Africa had failed to exercise its powers with a view to promoting the well-being and progress of the inhabitants. The Court found that no factual evidence was needed for the purpose of determining whether the policy of apartheid in Namibia was in conformity with the international obligations assumed by South Africa. It is undisputed that the official governmental policy pursued by South Africa in Namibia is to achieve a complete physical separation of races and ethnic groups. This means the enforcement of distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitutes a denial of fundamental human rights. This the Court views as a flagrant violation of the purposes and principles of the Charter of the United Nations.

The Government of South Africa had also submitted a request that a plebiscite should

be held in the Territory of Namibia under the joint supervision of the Court and the

Government of South Africa. The Court having concluded that no further evidence was required, that the Mandate had been validly terminated and that in consequence South Africa's presence in Namibia was illegal and its acts on behalf of or concerning Namibia illegal and invalid, it was not able to entertain this proposal.

By a letter of 14 May 1971 the President informed the representatives of the States

and organizations which had participated in the oral proceedings that the Court had decided not to accede to the two above-mentioned requests.

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#7. Danube Dam Case Facts: A treaty between the Hungarian Peoples Republic and the Czechoslovak Socialist Republic regarding the Construction and Operation of Gabciko-Nagymaros System of Locks was concluded on September 16, 1977. It was concluded for the facilitation of the construction of dams on Danube River. It was for the broad utilization of the natural resources of the Danube between Bratislava and Budapest, representing two hundred of the Rivers total 2,816 kilometers. There was intense criticism of the construction at Nagyramos was due to the endangerment of the environment and uncertainty of economic sustainability. The growing opposition endangered political pressures upon the Hungarian Government. After the initiation of two protocols, concerned with the timing of construction, Hungary suspended works at Nagyramos on July 21 1989 pending further environmental studies. In response, Czechoslovakia carried out unilateral measures. Hungary then claimed the right to terminate the treaty and the dispute was submitted to the ICJ. Hungary also claimed that it was entitle to terminate the treaty on the grounds that Czechoslovakia violated the Articles of the Treaty by carrying out unilateral measures. Slovakia became successor to Czechoslovakia to the treaty in 1977. On may 1992, Hungary moved to terminate the treaty for Czechoslovakias refusal to suspend works during the process of mediation. Since there was no clause for termination in the treaty, Hungary presented 5 arguments for its action: (1) state of necessity, (2) supervening impossibility of performance, (3) fundamental change of circumstances, (4) material breach, and (5) emergence of new norms in International Law. Slovakia contested all arguments. ISSUE: Whether the termination of the Treaty by Hungary is valid? HELD: No.

(1) The ICJ easily dismissed the first claim by Hungary by simply stating that necessity is not a valid ground for termination as even if a state of necessity is established, as soon as it ceases to exist, the treaty obligations automatically revive.

(2) The doctrine of impossibility of performance is encapsulated in Art. 61 of the Vienna Convention on the Law of Treaties, which requires the permanent disappearance or destruction of an object indispensable for the execution of the treaty. In this case, the legal regime governing the project did not cease to exist.

(3) In fundamental change of circumstances, the Court held that although political changes and diminished economic sustainability and viability were relevant to the conclusion of the treaty, they were not so closely linked with the object and purpose of the 1977 Treaty so as to constitute an essential basis of te consent of the Parties. New developments in the efficacy of environmental knowledge were not unforeseen by the treaty and cannot be said to represent a fundamental change.

(4) Material breach only occurred upon the diversion of Danube and Hungarys purported termination was premature and thus invalid.

(5) Hungary claimed that pursuant to new developments in international law, the obligation not to cause injury and damage to another state has become an obligation erga omnes. Slovakia countered that there has been no intervening developments in international environmental law that would give rise to jus cogens that would supervene their treaty. The Court avoided consideration of these propositions.

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#8. Goldwater vs Carter *Topic: Authority to terminate. While the Vienna Convention enumerates those who have the capacity to enter into treaties, it does not say who may terminate a treaty. Logically, however, the authority to terminate should also belong to the one who has the authority to enter into the treaty. (Question: Can the President unilaterally terminate a treaty? Goldwater vs Carter discussed this question relative to Pres. Carters termination of the defense treaty with Taiwan. No decision was reached except to say that the matter was not yet ripe for judicial review. Facts:

President Carter terminated a defense treaty with Taiwan. Neither the Senate nor the House has taken action to prevent or contest the action. Several members brought this claim alleging the President has deprived them of their Constitutional role.

In the present posture of this case, we do not know whether there ever will be an actual confrontation between the Legislative and Executive Branches. Although the Senate has considered a resolution declaring that Senate approval is necessary for the termination of any mutual defense treaty, no final vote has been taken on the resolution. Arguments:

P) The Constitution makes specific mention that the President needs the approval and consent of the Senate to make a treaty, therefor the contra positive is true: President cannot terminate a treaty without approval and consent of the Senate. If so, a constitutional case and controversy are ripened for decision. Whether the decision making authority is Constitutionally valid is a determination left to the courts.

Def) The issue is a political question where the PL is asking the court to issue an

advisory opinion on whether the President can or cannot terminate a treaty.

Issue: Whether the President, in terminating at treaty with another country, needs the

approval of Congress, and if so does it involve a political question?

Held: The judgment is vacated and the case remanded to the court for dismissal. Rule:

The President is authorized to make treaties with the advice and consent of the Senate. Treaties shall be a part of the supreme law of the land.

Court has recognized that an issue should not be decided if it is not ripe for judicial

review. Prudential considerations persuade me that a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority. Differences between the President and the Congress are commonplace under our system. The differences should, and almost invariably do, turn on political rather than legal considerations.

The Judicial Branch should not decide issues affecting the allocation of power

between the President and Congress until the political branches reach a constitutional impasse. Otherwise, we would encourage small groups or even individual Members of

Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict

Court Rationale: If Congress had challenged the Presidents authority to terminate,

then the court would have justiciable issue to decide. Without a challenge the issue only involves a political question. Neither the Senate nor the House have taken any action, thereby rendering the case unripe for decision. There is no specific language preventing the President from terminating treaties without approval. There is no showing that Congress has rejected the Presidents claim. It is Congress choice to challenge the President not the Courts.

Where the Constitution is silent this case is controlled by political standards. Congress

has terminated treaties without Presidential approval.

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#9. Brazilian Loans Case: France vs Brazil * Municipal Law in International Law. Where the court must decide a dispute which turns not upon international law but upon domestic law, the court stated what it must do: Once the court has arrived at the conclusion that it is necessary to apply the municipal law of a particular country, there seems to be no doubt that it must seek to apply it as it would be applied in that country. Facts: By a decree dated June 8th, 1903, the Government of the Republic of the United States of Brazil established a "special regime for the carrying out of works for the improvement of ports". This regime was subsequently modified by a presidential decree dated February 14th, 1907, to the effect that "the works were to be carried out under government's control and by contract", the Government being empowered "for the expenditure necessary in connection with the carrying out of the improvements in the ports and on the navigable rivers", "to undertake the requisite operations for obtaining credit" and "to issue gold or paper bonds". Further, the law of December 31st, 1907, determining the general expenditure of the Republic for the financial year 1908, authorized the President of the Republic, amongst other things, "to proceed with the improvement works in the ports .... in accordance with the decree .... of February 14th, 1907, as also with the requisite credit operations". 1) In virtue of this authority, the President appears to have called for tenders for the carrying out of the improvement works at the port of Recife (Pernambuco) and, by a decree of July 2nd, 1908, he approved the conditions of a contract to be concluded between the Government and the contractors whose tenders had been selected. The contract was actually concluded on August 4th, 1908; according to its provisions' [p98] the works contracted for were to be paid for in bonds to bearer of the Brazilian Public Debt issued to a maximum nominal value "equivalent to 84,528,300 francs". The issue by the Minister of Finance of a first section of a nominal value of 40,000,000 francs was authorized by a presidential decree of December 3rd, 1908. The prospectus of this section, dated December 30th, 1908, states that "the loan constitutes a direct debt of the Government of the United States of Brazil"; it indicates that subscriptions would take place on January 30th, 1909, at Paris and provincial French exchanges. The bonds were actually signed on July 24th, 1909, by the delegate of the Brazilian Treasury in London. 2) Under a Brazilian decree of March 27th, 1907, a new contract was concluded, on October 25th, 1909, between the Federal Government of the United States of Brazil and the Goyaz Railway Company, according to which the Government was to pay the Company "in bonds bearing interest at 4% per annum .... the sum which will be determined by the final plans approved by the Government"; as soon'as authorized to do so by the Government, the Company might "sell the whole or a part of the bonds corresponding to the railways....". In virtue of the foregoing arrangements, the Goyaz Railway Company, on February 10th, 1910, concluded at Paris with a French bank a contract for the sale, by the bank, of 100,000,000 francs worth of Brazilian funds, represented by 200,000 bonds, which were to be made over to the bank by the Company; The prospectus, which is dated March 2nd, 1910, states that subscription would take place at Paris and provincial French exchanges on March 17th, 1910. 3) By a contract duly approved by a Brazilian presidential decree dated March 31st, 1911, the Viacao Geral da Bahia Company obtained a concession for the construction of a system of railways in the State of Bahia; the works were to be paid for in "4 % bonds of the Federal Debt",

which the Company was to sell for its own account "immediately after the conclusion of the negotiations". Another decree dated June 21st, 1911, authorized the Minister of Finance to issue bonds for 60,000,000 francs, "in payment for the works provided for in the contract concluded with the Viacao Geral da Bahia Company"; the bonds were to be "of the nominal value of 500 francs". The prospectus is dated May 12th, 1911; according to its terms, subscription was to take place on July 12th, 1911. The place of issue is not indicated, but it is said that "allotment will take place on Tuesday, July 25th, 1911: at Paris .... in the provinces .... and in Brazil" (Rio de Janeiro). The bonds were signed in London on September 21st, 1911, by the duly authorized representative of the Federal Government of the United States of Brazil; It appears from the terms of Article I of the Special Agreement that the Parties agree on the fact that "hitherto" the payment of matured coupons and the redemption of drawn bonds of the three loans at issue have been effected "in paper francs, that is to say, in the French currency which is compulsory tender". And the documents and. information [p100] laid before the Court confirm that this has indeed been the case, except for the period from August 1st, 1914, to July 31st, 1917, inclusive, during which the interest on the loans was in effect paid by means of "funding bonds" (bons de consolidation) issued, with the authorization of the Brazilian Government, by a banking house of London; these funding bonds were bearer bonds redeemable in ten years, the interest on which was payable in pounds sterling at London and certain continental exchanges at the exchange rate of the day on London. This incident does not seem however to have any bearing on the present case. It is also common ground that the yield of the loans has always been credited to the borrower, or to the companies to which it had ceded its right, in French francs at their current value. Finally, it is admitted by both sides that the fact that after the increasing depreciation of the French franc, the service of the loan was effected in that currency on the basis of its current value, ultimately led to protests and the taking of steps by the bondholders with a view to inducing the French Government to intervene; according to the Brazilian Government, however, this attitude on the part of the bondholders dates only from 1924 and is explained by speculative aims, while, according to the French Government, the discontent of the bondholders and its earliest manifestations date from an earlier period. However that may be, on September 1st, 1924, the French Ambassador at Rio de Janeiro intervened, in the name of his Government, with the Federal Government "on behalf of the bondholders of the three Brazilian loans at issue, who claimed that payment of the interest upon and the redemption of the capital of these loans should be effected on a gold basis"; the French Government seems thus to have identified itself with this claim, with which the Government of the United States of Brazil did not however feel called upon to comply. Diplomatic conversations seem to have then taken place, which, however, did not succeed in disposing of the controversy. = dispute Problem: There appears to have been only a slight difference in the value of French currency as [p120] compared with a gold basis. The significant period is the later onethat is, between 1919 and 1924, as by the latter date the French Government had espoused the cause of the French bondholders and made formal complaint. In considering the conduct of the bondholders in this period, it is to be remembered that this was a time of great difficulties; that there were many bondholders; that as individuals they were powerless as against the Brazilian Government, and it was necessary for them to associate themselves together and to interest the French Government in their case; that the French Government had to consider the matter and determine on its course of action. When all these circumstances are considered, there is no

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adequate basis for an inference from the conduct of the bondholders that they were of opinion that they were not entitled to obtain payment on the basis of a gold standard. From September 1924, at least, the matter was in the course of diplomatic negotiations between the two Governments until the Special Agreement for submission to the Court was signed in 1927. The bonds are bearer bonds which entitle the bearer to claim, simply because he is a bearer, all the rights accruing under the bond. The bondholders cannot be regarded as estopped to seek payment in gold value. The law applicable.Counsel for the Government of the United States of Brazil has summarized the argument of his Government as follows: " .... even were it possible to conclude that the intention of the borrower and lenders was to set aside the French franc and adopt another franc representing a fixed and invariable monetary unit, calculated according to its weight in gold, on that hypothesis also, as the question concerns a loan governed by Article 1895 of the French Civil Code and seeing that the forced currency law enacted as a result of circumstances, unforeseen and impossible to foresee, such a clause could not be effective in so far as concerned any payment to be made in francs." Issue: Formulated in this way, the argument raises several questions, and in the first place the question whether it is French law which in this case governs the contractual obligations as such. Held: The Brazilian law governs, not the French Law. That is a question of private international law which the Court, as it has explained in its judgment regarding the Serbian loans, must decide by reference to the actual nature of the obligations in question and to the circumstances attendant upon their creation, though it may also take into account the expressed or presumed intention of the Parties. Having regard to the nature of the bonds and to the circumstances concerning their issue, there seems to be no doubt that it is Brazilian law and not French law which must be held to govern the obligations contracted, at all events as regards the substance of the debt and the validity of the clause defining it. The loans in question are loans contracted by the Government of the United States of Brazil under laws and decrees having the force of law and laying down the conditions relating to the loans. These decrees are cited in the bonds, and accordingly the validity of the obligations set out therein is indisputable in Brazilian law. The bonds are bearer bonds signed by the delegate of the Brazilian Treasury in London. It follows from the very nature of bearer bonds that the substance of the debt, which in principle must be the same in respect of all holders, cannot be dependent on the identity of the holder or the place where he has acquired his bond. Only the identity of the borrower is fixed; in this case it is a sovereign State, which cannot be presumed to have made the substance of its debt and the validity of the obligations accepted by it in respect thereof, subject to any law other than its own. [p122] It cannot be held that the intention of the borrowing State was to render some law other than its own applicable as regards the substance of its debt and the validity of the conditions laid down in respect thereof, unless there were, if not an express provision to this effect, at all events circumstances which would irrefutably show that such was its intention. But in the present case there is no express provision. The only circumstance which has been brought to the knowledge of the Court and which might possibly be cited in this connection is

that, according to the statement of the Government of the United States of Brazil, which has not been disputed, the issue of the loans took place in France only. This circumstance, however, cannot suffice to show that the intention was to make the obligations entered into as regards the substance of the debt and the validity of the conditions relating to it, subject to French law, more especially considering that not only did the bonds of all those loans also contain an English text but also that the interest was made payable, in the case of the 1910 and 1911 loans, at Rio de Janeiro and London as well as Paris, and in the case of the 1909 loan, besides Paris, also at Brussels, Amsterdam and Hamburg. As concerns the 1910 and 1911 loans also, the bonds drawn for redemption are payable at Paris, London and Rio de Janeiro. These provisions show that it was not the intention to place the bonds exclusively in France. Moreover, the prospectus which has been produced in respect of the 1911 loan states that subscription was to take place not only at Paris and on French provincial exchanges, but also in Brazil. But though the Court is unable to admit that the intention was to make the substance of the debt and the validity of the provisions relating to it subject to French law, this does not prevent the currency in which payment must or may be made in France from being governed by French law. For, as the Court has explained in its judgment in the case of the Serbian loans, it is a generally accepted principle that a State is entitled to regulate its own currency. The application of the laws of such State involves no difficulty so long as it does not affect the substance of the debt [p123] to be paid and does not conflict with the law governing such debt. And in the present case, this situation need only be-envisaged if, as contended by the Government of the United States of Brazil, French law rendered it impossible to claim payment otherwise than in bank-notes which are compulsory tender, and for the same amount of francs as are specified in the contract. Does this observation also cover the present case? The Special Agreement under which this case has been submitted to the Court contains the following in Article VI: "In estimating the weight to be attached to any municipal law of either country which may be applicable to the dispute, the Permanent Court of International Justice shall not be bound by the decisions of the respective-courts." There are two possible interpretations. According to one keeping more strictly to the literal meaning of the wordsthe Court is not to regard itself as legally bound to follow the doctrine of the courts of the country the law of which it is applying; it remains however free to do so if it considers that its task should be limited to applying the municipal law in accordance with the construction placed thereon by the national courts. According to another interpretation which might find support more particularly in the fact that questions similar to that submitted to the Court had already formed the subject of decision in French courts the Court's duty would be to disregard the doctrine of the municipal courts and itself to determine that interpretation of the relevant legislation which seems, in its opinion, to be the most reasonable in the present case. The Court, in choosing between these two interpretations, must adopt that one which is in principle compatible with a proper appreciation of its nature and functions. Though bound to apply municipal law when circumstances so require, the Court, which is a tribunal of international law, and which, in this capacity, is deemed itself to know what this law is, is not obliged also to know the municipal law of the various countries. All that can be said in this respect is that the Court may possibly be obliged to obtain knowledge regarding the municipal law which has to be applied. And this it must do, either by means of evidence furnished it by the Parties or by means of any researches which the Court may think

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fit to undertake or to cause to be undertaken. Once the Court has arrived at the conclusion that it is necessary to apply the municipal law of a particular country, there seems no doubt that it must seek to apply it as it would be applied in that country. It would not be applying the municipal law of a country if it were to apply it in a manner different from that in which that law would be applied in the country in which it is in force. It follows that the Court must pay the utmost regard to the decisions of the municipal courts of a country, for it is with the aid of their jurisprudence that it will be enabled to decide what are the rules which, in actual fact, are applied in the country the law of which is recognized as applicable in a given case. If the Court were obliged to disregard the decisions of municipal courts, the result would be that it might in certain circumstances apply rules other than those actually applied; this would seem to be contrary to the whole theory on which the application of municipal law is based. Of course, the Court will endeavour to make a just appreciation of the jurisprudence of municipal courts. If this is uncertain or divided, it will rest with the Court to select the interpretation which it considers most in conformity with the law. But to compel the Court to disregard that jurisprudence would not be in conformity with its function when applying municipal law, while the Court is authorized to depart from the jurisprudence of the municipal courts, it remains entirely free to decide that there is no ground for attributing to the municipal law a meaning other than that attributed to it by that jurisprudence.

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#10. BORIS MEJOFF v. DIRECTOR OF PRISONS,

Petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from Shanghai as a secret operative by the Japanese forces during the latter's regime in these Islands.

Upon liberation, he was arrested as a Japanese spy, by U S. Army Counter Intelligence Corps.

Later he was handed to the Commonwealth Government for disposition in accordance with Commonwealth Act No. 682.

Thereafter the People's Court ordered his release. But the deportation board taking his case up, found that having no travel documents Mejoff was illegal in this country, and consequently referred the matter to the immigration authorities.

After the corresponding investigation, the Board of Commissioners of Immigration on April 5, 1948, declared that Mejoff had entered the Philippines illegally in 1944, without inspection and admission by the immigration officials at a designated port of entry and, therefore, it ordered that he be deported on the first available transportation to Russia.

The petitioner was then under custody, he having been arrested on March 18, 1948. In May, 1948, he was transferred to the Cebu Provincial Jail together with three other Russians to await the arrival of some Russian vessels.

In July and in August of that year two boats of Russian nationality called at the Cebu Port. But their masters refused to take petitioner and his companions alleging lack of authority to do so.

In October, 1948, after repeated failures to ship this deportee abroad, the authorities removed him to Bilibid Prison at Muntinglupa where he has been confined up to the present time, inasmuch as the Commissioner of Immigration believes it is for the best interest of the country to keep him under detention while arrangements for his deportation are being made. On behalf of petitioner

(1) that having been brought to the Philippines legally by the Japanese forces, he may not now be deported. It is enough to say that the argument would deny to this Government the power and the authority to eject from the Islands any and all of that members of the Nipponese Army of occupation who may still be found hiding in remote places. Which is absurd.

(2) Petitioner likewise contends that he may not be deported because the statutory period to do that under the laws has long expired. The proposition has no basis. Under section 37 of the Philippine Immigration Act of 1940 any alien who enters this country "without inspection and admission by the immigration authorities at a designated point of entry" is subject to deportation within five years. In a recent decision of a similar litigation (Borovsky vs. Commissioner of Immigration)

We denied the request for habeas corpus, saying:

"It must be admitted that temporary detention is a necessary step in the process of

exclusion or expulsion of undesirable aliens and that pending arrangements for his deportation, the Government has the right to hold the undesirable alien under confinement for a reasonable lenght of time. However, under established precedents, too long a detention may justify the issuance of a writ of habeas corpus.

1

"The meaning of "reasonable time" depends upon the circumstances, specially the

difficulties of obtaining a passport, the availability of transportation, the diplomatic arrangements concerned and the efforts displayed to send the deportee away.

2

Considering that this Government desires to expel the alien, and does not relish

keeping him at the people's expense, we must presume it is making efforts to carry out the decree of exclusion by the highest officer of the land.

On top of this presumption assurances were made during the oral argument that the Government is really trying to expedite the expulsion of this petitioner. On the other hand, the record fails to show how long he has been under confinement since the last time he was apprehended. Neither does he indicate neglected opportunities to send him abroad. And unless it is shown that the deportee is being indefinitely imprisoned under the pretense of awaiting a chance for deportation

3 or unless the Government admits that it cannot deport him

4 or unless

the detainee is being held for too long a period our courts will not interfere.

"In the United States there were at least two instances in which courts fixed a time limit within which the imprisoned aliens should be deported

5 otherwise their release would be

ordered by writ of habeas corpus. Nevertheless, supposing such precedents apply in this jurisdiction, still we have no sufficient data fairly to fix a definite deadline."

The difference between this and the Borovsky case lies in the fact that the record shows this petitioner has been detained since March, 1948. However, considering that in the United States (where transportation facilities are much greater and an order of deportation has not been held sufficient to justify the issuance of the writ of habeas corpus. This petition must be, and it is hereby denied.

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#11. TINOCO ARBITRATION Facts:

In January, 1917, the Government of Costa Rica, under President Alfredo Gonzalez, was overthrown by Frederico Tinoco, the Secretary of War. Gonzalez fled. Tinoco assumed power, called an election, and established a new constitution in June, 1917. His government continued until August, 1919, when Tinoco retired, and left the country. His government fell in September following. After a provisional government under one Barquero, the old constitution was restored and elections held under it. The restored government is a signatory to this treaty of arbitration.

The Constitutional Congress of the restored Costa Rican Government passed a law

known as Law of Nullities No. 41. It invalidated all contracts between the executive power and private persons, made with or without approval of the legislative power between January 27, 1917, and September 2, 1919, covering the period of the Tinoco government.

Including those contracts that were nullified were the contract of indebtedness and

concession with royal bank of Canada and central Costa Rica petroleum respectively. Both are considered are Britain corporation.

As a result Britain filed a claim against the government of Costa Rica, Britain ask an

award that she is entitled on behalf of her subjects to have the claim of the bank paid, and the concession recognized and given effect by the government of Costa Rica. Great Britain argued that

The Tinoco government was the only government of Costa Rica de facto and de jure for two years and nine months; that during that time there is no other government disputing its sovereignty, that it was in peaceful administration of the whole country, with the acquiescence of its people.

The succeeding government could not by legislative decree avoid responsibility for acts of that government affecting British subjects, or appropriate or confiscate rights and property by that government except in violation of international law;

The government of Costa Rica denies all the liability for acts or obligations of the Tinoco government. Costa Rica argued that:

The Tinoco government was not a de facto or de jure government according to the rules of international law

The contracts and obligations of the Tinoco government, set up by Great Britain on behalf of its subjects, are void, and do not create a legal obligation, because the government of Tinoco and its acts were in violation of the constitution of Costa Rica of 1871.

Great Britain is stopped by the fact that it did not recognize the Tinoco government during its incumbency, to claim on behalf of its subjects that Tinoco's was a government, which could confer rights binding on its successor.

ISSUE: Whether or not the non-recognition of other states of tinoco government made not a de facto government Ruling No, Tinoco was a sovereign government. Even though some states did not recognize it that cannot outweigh the evidence disclosed that de facto it was a government.

The non-recognition by other nations of a government claiming to be a national personality, is usually appropriate evidence that it has not attained the independence and control entitling it by international law to be classed as such. But when recognition vel non of a government is by such nations determined by inquiry, not into its de facto sovereignty and complete governmental control, but into its illegitimacy or irregularity of origin, their non-recognition loses something of evidential weight on the issue with which those applying the rules of international law are alone concerned. What is true of the non-recognition of the United States in its bearing upon the existence of a de facto government under Tinoco for thirty months is probably in a measure true of the non-recognition by her Allies in the European War. Such non-recognition for any reason, however, cannot outweigh the evidence disclosed by this record before me as to the de facto character of Tinoco's government, according to the standard set by international law

For a full two years Tinoco and the legislative assembly under him peaceably administered the affairs of the Government of Costa Rica, and there was no disorder of a revolutionary character during that interval. No other government of any kind asserted power in the country. The courts sat, Congress legislated, and the government was duly administered. Its power was fully established and peaceably exercised. The people seemed to have accepted Tinoco's government with great good will when it came in, and to have welcomed the change.

The truth is that throughout the record as made by the case and counter case, there is no substantial evidence that Tinoco was not in actual and peaceable administration without resistance or conflict or contest by anyone until a few months before the time when he retired and resigned

It is ably and earnestly argued on behalf of Costa Rica that the Tinoco government cannot be considered a de facto government, because it was not established and maintained in accord with the constitution of Costa Rica of 1871. To hold that a government which establishes itself and maintains a peaceful administration, with the acquiescence of the people for a substantial period of time, does not become a de facto government unless it conforms to a previous constitution would be to hold that within the rules of international law a revolution contrary to the fundamental law of the existing government cannot establish a new government. This cannot be, and is not, true. The change by revolution upsets

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#12. The Island of Palmas Scott, Hague Court Reports 2d 83 (1932) (Perm. Ct. 4rb. 1928), 2 U.N. Rep. Intl. 4rb. Awards 829 Background

Palmas (also referred to as Miangas) is an island about two miles long by three fourths of a mile wide which at the time of this case had a population of about 750 and was of little strategic or economic value. It sits about halfway between the islands of Mindanao in the Philippines and Nanusa in the Netherlands Indies.

It is, however, within the boundaries of the Philippines as defined by Spain and thus

ceded to the United States in 1898. In 1906 an American General, Leonard Wood, visited Palmas and discovered that the Netherlands also claimed sovereignty over the island. An agreement was signed on January 23, 1925, between the United States and the Netherlands to submit the dispute to binding arbitration.

The Swiss jurist, Max Huber, was the selected arbitrator acting for the Permanent

Court of Arbitration. Huber was charged to determine "whether the Island of Palmas (or Miangas) in its entirety forms a part of territory belonging to the United States of America or of Netherlands territory." Facts:

The United States, as successor to the rights of Spain over the Philippines, bases its title in the first place on discovery. The existence of sovereignty thus acquired is, in the American view, confirmed not merely by the most reliable cartographers and authors, but also by treaty, in particular by the Treaty of Monster, of 1648, to which Spain and the Netherlands are themselves Contracting Parties.

As, according to the same argument, nothing has occurred of a nature, in

international law, to cause the acquired title to disappear, this latter title was intact at the moment when, by the Treaty of December 10th, 1898, Spain ceded the Philippines to the United States. In these circumstances, it is, in the American view, unnecessary to establish facts showing the actual display of sovereignty precisely over the Island of Palmas (or Miangas).

The United States Government finally maintains that Palmas (or Miangas) forms a

geographical part of the Philippine group and in virtue of the principle of contiguity belongs to the Power having the sovereignty over the Philippines.

The title alleged by the United States of America as constituting the immediate foundation. of its claim is that-of cession, brought about by the Treaty of Paris, which cession transferred all rights of sovereignty which Spain may have possessed in the region indicated in Article III of the said Treaty and therefore also those concerning the Island of Palmas (or Miangas).

On the part of the Netherlands, they claimed to have possessed and exercised rights of sovereignty over the island from 1677 or earlier to the present.

Issue: Can a title which is inchoate prevail over a definite title found on the continuous and

peaceful display of sovereignty? Ruling: No.

It is evident that Spain could not transfer more rights than she herself possessed. It is recognized that the United States communicated, on February 3rd, 1899, the Treaty of Paris to the Netherlands, and that no reservations were made by the latter in respect of the delimitation of the Philippines in Article III. The question whether the silence of a third Power, in regard to a treaty notified to it, can exercise any influence on the rights of this Power, or on those of the Powers signatories of the treaty, is a question the answer to which may depend on the nature of such rights.

Whilst it is conceivable that a conventional delimitation duly notified to third Powers

and left without contestation on their part may have some bearing on an inchoate title not supported by any actual display of sovereignty, it would be entirely contrary to the principles laid down above as to territorial sovereignty to suppose that such sovereignty could be affected by the mere silence of the territorial sovereign as regards a treaty which has been notified to him and which seems to dispose of a part of his territory.

In any case for the purpose of the present affair it may be admitted that the original title derived from discovery belonged to Spain.

If the view most favourable to the American arguments is adopted -with every reservation as to the soundness of such view - that is to say, if ",e consider as positive law at the period in question the rule that discovery as such, i.e., the mere fact of seeing land, without any act, even symbolical, of taking possession, involved ipso jure territorial sovereignty and not merely an "Inchoate title," a jus ad rem, to be completed eventually by an actual and durable taking of possession within a reasonable time, the question arises whether sovereignty yet existed at the critical date, i.e., the moment of conclusion and coming into force of the Treaty of Paris.

As regards the question which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-called intertemporal law), a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law.

International law in the 19th century, having regard to the fact that most parts of the

globe were under the sovereignty of states members of the community of nations, and that territories without a master had become relatively few, took account of a tendency already existing and especially developed since the middle of the 18th century, and laid down the principle that occupation, to constitute a claim to territorial sovereignty, must be effective, that is, offer certain guarantees to other states and their nationals.

It seems therefore incompatible with this rule of positive law that there should be

regions which are neither under the effective sovereignty of a state, nor without a master, but

[PIL] [Pick the date]

which are reserved for the exclusive influence of one state, in virtue solely of a title of acquisition which is no longer recognized by existing law, even if such a title ever conferred territorial sovereignty. For these reasons, discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty over the Island of Palmas (or Miangas); and in so far as there is no sovereignty, the question of an abandonment properly speaking of sovereignty by one state in order that the sovereignty of another may take its place does not arise.

Even admitting that the Spanish title still existed as inchoate in 1898 and must be considered as included in the cession under Article Ill of the Treaty of Paris, an inchoate title could not prevail over the continuous and peaceful display of authority by another state; for such display may prevail even over a prior, definitive title put forward by another state. This point will be considered, when the Netherlands argument has been examined and the allegations of either party as to the display of their authority can be compared.

In the last place there remains to be considered title arising out of contiguity. Although states have in certain circumstances maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation, it is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a state from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size).

Not only would it seem that there are no precedents sufficiently frequent and

sufficiently precise in their bearing to establish such a rule of international law, but the alleged principle itself is by its very nature so uncertain and contested that even governments of the same state have on different occasions maintained contradictory opinions as to its soundness.

The principle of contiguity, in regard to islands, may not be out of place when it is a

question of allotting them to one state rather than another, either by agreement between the parties, or by a decision not necessarily based on law; but as a rule establishing ipso jure the presumption of sovereignty in favour of a particular state, this principle would be in conflict with what has been said as to territorial sovereignty and as to the necessary relation between the right to exclude other states from a region and the duty to display therein the activities of a state. Nor is this principle of contiguity admissible as a legal method of deciding questions of territorial sovereignty; for it is wholly lacking in precision and would in its application lead to arbitrary results. This would be especially true in a case such as that of the island in question, which is not relatively close to one single continent, but forms part of a large archipelago in which strict delimitations between the different parts are not naturally obvious. . . .

It is, however, to be observed that international arbitral jurisprudence in disputes on territorial sovereignty (e.g., the award in the arbitration between Italy and Switzerland concerning the Alpe Craivarola; Lafontaine, Pasicrisie international, p. 201-209) would seem to attribute greater weight to - even isolated - acts of display of sovereignty than to continuity of territory, even if such continuity is combined with the existence