PUBLIC INTERNATIONAL LAW

CASE KEYWORDS (FACTS) HELD DOCTRINE

Cases on Customary Law

Kuroda vs. Jalandoni EO 68 established a National War

Crimes office, prescribing rules

and regulations governing the trial

of accused war criminals. Kuroda

challenged the jurisdiction of the

military commission on the ground

that PH was not a signatory to the

Hague and Geneva Conventions.

The Commission had jurisdiction

to try him. The change in our form

of government from

commonwealth to republic does

not affect the prosecution of those

charged with the crime of treason

committed during the

Commonwealth because it is an

offense against the same

sovereign people.

Even without the clause in our

Constitution (Article II, Section 2),

generally accepted principles of

international law will continue to

be binding by virtue of our

membership in the community of

nations.

General principles of law

automatically become part of

the law of the land.

Yamashita vs. Styer Prisoner of war was treated as a

war criminal. He challenged that

the Military Commission had no

jurisdiction.

SC decided that the Military

Commission had jurisdiction

because we were still in a state of

war.

Dissenting: J. Perfecto –

Yamashita is entitled to be

accorded all the guarantees,

protections, and defenses.

Mankind, in general, has been

covered by laws governing as far

back the ancient times. As such,

the Philippines is bound by

customary law.

Kookooritchkin vs. SolGen Russian did not want to submit to

the Bolshevik regime so he went

Kookooritchkin, as a stateless

citizen, is also entitled to

We are civilized people and we do

not do harsh things to each other.

the Philippines and became a

guerilla. The SolGen challenged

the approval of his naturalization

on the ground that there was no

testimonial or documentary

evidence to prove that he was

lawfully admitted in the

Philippines.

naturalization. Appellee's

testimony, besides being

uncontradicted, is supported by

the wellknown fact that the

ruthlessness of modern

dictatorship has scattered

throughout the world a large

number of stateless refugees or

displaced persons, without country

and without flag. The tyrannical

intolerance of said dictatorships

toward all opposition induced

them to resort to beastly

oppression, concentration camps

and blood purges, and it is only

natural that the notsofortunate

ones who were able to escape to

foreign countries should feel the

loss of all bonds of attachment to

the hells which were formerly their

fatherland's. Petitioner belongs to

that group of stateless refugees.

Nicaragua vs. US Nicaragua sued US for intervening

with its internal political matters,

for sending mercenaries, for

blocking its loans in the

international bank, and for using

threat and force – all because the

Nicaraguan government

supported the El Salvadoran

rebellion.

U.S. questioned the ICJ’s

jurisdiction.

U.S. cannot argue on the basis of

its multilateral treaty because

customary international law

operates separately from treaties.

U.S. only ceased to take part in

the proceedings after a judgment

had been given adverse to its

contentions on jurisdiction and

admissibility.

The principle of non-intervention

means that every State has a right

to conduct its affairs without

outside interference.

Customary norms have to be

consistent with state practice.

North Sea Continental Shelf

Cases

Germany, and Denmark and the

Netherlands submitted to the

Court certain differences

concerning the delimitation

between the Parties on the areas

of the continental shelf in the

North sea. Denmark and

Netherlands argued that the

principle of equidistance should be

used. Germany does not want to

submit to this principle because it

would be unfair to them (as they

will not get a proportionate share).

Germany is not bound to follow

the equidistance principle.

For customary law to emerge

the court held that it needed:

1. widespread and

representative participation

2. virtually uniform practice

3. opinion juris (general

recognition of the legal

obligation)

NORM = STATE PRACTICE +

OPINIO JURIS

They argued that it was not

binding as customary international

law.

South-West Africa Case: Ethiopia

vs. Africa; Liberia vs. South Africa

South West Africa was a League

of Nations Mandate Territory

placed under the administration of

South Africa. Ethiopia and Liberia,

included in SWA, alleged that the

gov’t of South Africa failed to

promote the well being of the

inhabitants by enforcing

apartheid.

SWA argued on the basis of

sacred trust, upon which the idea

of a Mandate is based implies a

sacred trust of civilizations,

meaning that all civilized nations

had an interest in seeing that it

was carried out.

In order that such interest might

take on a specifically legal

character, the sacred trust itself

must be or become more than a

moral or humanitarian ideal. It

must have juridical expression and

must be clothed in legal form. The

principle of sacred trust had no

residual juridical content which

could, so far as any particular

mandate is concerned, operate

per se to give rise to legal rights

and obligations outside the system

as a whole.

The ICJ can only rule on legal

rights, not on moral or ethical

issues. The duty of the Court is to

apply the law; not to make it.

Asylum Case (Colombian vs.

Peru)

Leader of military rebellion sought

asylum in Colombia. The

Colombian ambassador in Lima

informed the Peruvian gov’t of the

asylum granted to Haya dela

Torre and at the same time he

asked that a safe conduct be

issued to enable the refugee to

Colombia was not allowed to

unilaterally grant political asylum.

Colombia cannot invoke the

Havana Convention on Asylum of

1928 (Does not contain any

provision conferring on the State

granting asylum a unilateral

Extradition – the refugee is within

the territory of the State of refuge

Diplomatic asylum –the refugee is

within the territory of the State

where the offence was committed.

Conditions to grant asylum:

leave the country. competence to qualify the offence

with definitive and binding force

for the territorial state) and the

Montevideo Convention on

Political Asylum of 1933 (not

ratified by Peru, thus cannot

invoked against it)

1. It can be granted only to

political offenders who are not

accused or condemned for

common crimes and only in urgent

cases and for the time strictly

indispensable for the safety of the

refugee.

2. Article 2, Havana Convention:

The government of the State may

require that the refugee be sent

out of the national territory within

the shortest time possible; and the

diplomatic agent of the country

who has granted asylum may in

turn require the guarantees

necessary for the departure of the

refugee from the country with due

regard to the inviolability of his

person. —> Peru had not

demanded the departure of the

refugee and was therefore not

bound to deliver a safe conduct.

Nuclear Test Cases Australia and New Zealand filed a

complaint against France for the

fall outs caused by its nuclear

tests. On the basis of France’s

several declarations, the two

complainants said that it was

bound to stop the nuclear testing.

France was bound by its

declarations.

Declarations are legal obligations.

Unilateral declarations from States

are not sources of international

law; but they form a basis for the

operation of estoppel.

Legality of the use by a state of

nuclear weapons in armed conflict

“Is the threat or use of nuclear

weapons in any circumstance

permitted under international

law?” – General Assembly of

United Nations

Several states contended that

rendering an advisory opinion

could also lead to making

hypothetical declarations outside

the scope of judicial function that

could affect current disarmament

negotiations.

Article 96, par. 1: The General

Assembly or the Security Council

may request the International

Court of Justice to give an

advisory opinion on any legal

question.

Use of nuclear weapons in

general is contrary to international

laws applicable in armed conflict

but the court cannot conclude

definitively whether the use or

threat of the same is lawful or

unlawful in an extreme

circumstance of self-defense in

which survival of the State

would be at stake.

The Paquete Habana Fishing smacks were captured

and cargo became the prize of

war.

Capture of the fishing smacks and

taking the fish they captured as

prize of war, were unlawful and

without probable cause. –

according to precedents

 Ancient usage has ripened into

international law.

International Humanitarian Law is

not only customary in nature but

By an ancient usage among

civilized nations, beginning

centuries ago and gradually

ripening into a rule of international

law, coast fishing vessels pursuing

their vocation of catching and

bringing fish have been

recognized as exempt, with their

cargoes and crews, from capture

as prize of war.

also jus cogens.

Exempting of fishing vessels was

founded on considerations of

humanity to a poor and industrious

order of men, and of the mutual

convenience of belligerent states

which rely on the livelihood of

fishing.

Right of Passage (Portugal vs.

India)

Portugal allegedly had a territory

in the Indian Peninsula. India

prevented Portugal from

exercising its right of passage.

— Portugal did not have the right

of passage in respect of armed

forces, armed police, and arms

and ammunition.

— India had not acted contrary to

its obligations resulting from

Portugal’s right of passage in

respect of private persons, civil

officials, and goods in general.

— When the British became the

sovereign in India, Portuguese

sovereignty was tacitly recognized

in those areas.

— With regard to private persons,

civil officials, and goods in

general, there existed during the

British and post-British periods a

constant and uniform practice

allowing free passage between

Daman and enclaves. That that

practice was accepted as law by

the parties and has given rise to a

Constant and uniform practice

between states is also a source of

international law. There is no need

to resort to general international

custom nor to general principles of

law in disposing of such cases

when there is an established

practice between the parties.

right and correlative obligation,

India has to grant a qualified right

of passage to the alleged

territories of Portugal.

Prosecutor vs. Tadic First person to ever be prosecuted

by the International Tribunal for

the Prosecution of Persons

Responsible for Serious

Violations of International

Humanitarian Law Committed in

the Territory of Former

Yugoslavia. He questioned the

jurisdiction of the international

tribunal

— Jurisdiction of the International

Tribunal — The narrow concept

of jurisdiction as the legal

power to state the law is not

applicable in international law

because it lacks a centralized

structure and has no integrated

judicial system.

— General Assembly was not

involved in the creation of the

tribunal — Just because the

security council is not a judicial

body does not mean that it cannot

set up one. It merely wanted to

establish an instrument to

exercise its own principal function

of maintenance of peace and

security. No delegation of powers

happened.

International humanitarian law

governs the conduct of both

international and internal armed

conflicts. (ARTICLE 5)

It is now a settle rule of customary

international law that crimes

against humanity do not require a

connection to international armed

conflict. If so, the Security Council

may have defined the crime in

Article 5 more narrowly than

necessary under customary

international law.

Salonga vs. Executive Secretary Case of the treaty of U.S. and

Philippines – VFA and Mutual

Defense Treaty.

Romulo-Kenney agreement not

valid because it was inconsistent

with the VFA. VFA is constitutional

because it is a self-executing

agreement, as it only intended to

It was not the intention of the

framers of the 1987 Constitution,

in adopting Article XVIII, Sec. 25,

to require the other contracting

State to convert their system to

carry out the obligations and

undertakings under the RP-US

Mutual Defense Treaty.

achieve alignment and parity with

ours. It was simply required that

the treaty be recognized as a

treaty by the other contracting

State. With that, it becomes for

both parties a binding international

obligation and the enforcement of

that obligation is left to the normal

recourse and processes under

international law.

Medellin vs. Texas Medellin is one of the persons

supposed to be granted pardon by

virtue of being

— When the President asserts the

power to enforce a non-self-

executing treaty by unilaterally

creating domestic law, he acts in

conflict with the implicit

understanding of the ratifying

Senate. The non-self-executing

character of the treaty constrains

the President’s ability to comply

with treaty commitments by

unilaterally making the treaty

binding on domestic courts.

— Due to the absence of any

legislation regarding these treaties

and the lack of any contention that

no legislation exists, the SC

concludes that the Avena

judgment is not automatically

binding domestic law. The general

rule is that judgment of foreign

courts awarding injunctive relief ,

even as to private parties, let

alone sovereign states, are not

generally entitled to enforcement.

While treaties may comprise

international commitments, they

are not domestic law unless

Congress enacted implementing

rules or the treaty is self-

executing.

— While treaties may comprise

international commitments, they

are not domestic law unless

Congress enacted implementing

rules or the treaty is self-

executing.

Texaco vs. Libya Libya promulgated decrees for

nationalization.

In determining the binding nature

of GA resolutions, the Court

looked into the voting patterns of

the participant states. It is

generally recommendatory but

may serve as an indicia of norm.

Doctrine of specifically affected

states.

Cases on General Principles of Law

Cambodia vs. Thailand Question of who has sovereignty

over the region of Temple of

Preah Vihear.

The commission underwent three

stages. In the final stage,

Cambodia transmitted 11 maps to

the Siamese government, which

the latter signed.

Cambodia relied on this map in

support of her claim to sovereignty

over the temple.

Thailand contests any claim based

on this map, on the following

grounds: (1) It was not the work of

the Mixed Commission/it was a

ICJ ruled that Thailand/Siam was

estopped from questioning the

validity or correctness of the map

because it has already signed it.

The map was even given wide

publicity.

The prince of Siam arrived at the

temple and saw a French flag at

the temple, but never contested it.

This constituted tacit recognition

of the sovereignty of Cambodia

over Preah Vihear.

Mistaken belief that the map line

was correctly drawn? Strengthens

case of Cambodia because it

Estoppel and acquiescence are

general principles of law which

can be a basis of international law.

Elements of Estoppel:

1. Act or representations

2. Reliance on (1)

3. Damage

unilateral act; (2) It was a material

error; (3) Thailand never accepted

it, but merely adoped a passive

attitude towards the map.

would mean that Siamese had, at

the back of their minds, believed

that the Temple was really part of

Cambodia’s territory.

Temple of Preah Vihear is situated

in territory under the sovereignty

of Cambodia.

Corfu Channel Case Albanian ships fired at Royal Navy

Ships while the latter was crossing

the Corfu Channel after they had

conducted an inspection of the

area. Albania claimed that the

Royal Navy Ships were

trespassing on Albanian waters.

Royal Navy Ships tested again if

they would be fired at. Two of their

ships were not fired at but they

struck mines and sustained

damages. People said that the

mines were laid by Yugoslavian

minelayers and not Albania.

Albania is liable for damages.

1. The mines were newly laid

when the explosions happened.

2. Since a state has exclusive

control over its waters, the victim

of a breach of international law, is

often unable to furnish direct proof

of facts giving rise to

responsibility. Such a State should

be endowed a more liberal

recourse to inferences of fact and

circumstantial evidence.

3. Albanian government constantly

kept a close watch over the waters

of the North Corfu Channel.

4. Albanian government never

notified anyone about the mines in

its waters.

5. Albanian government had

lookouts at Cape Kiephali, Denta

Point, and St. George’s Monastery

which were strategic places to

watch the channel.

Since a State has exclusive

control over its waters, the victim

of a breach of international law, is

often unable to furnish direct proof

of facts giving rise to

responsibility. Such a State

should be endowed a more

liberal recourse to inferences of

fact and circumstantial

evidence.

Albanian Gov’t had the obligation

to warn ships. Based on the ff

general and well-recognized

principles:

1. Elementary considerations of

humanity, even more exacting in

peace than in war.

2. The principle of the freedom of

maritime communication.

3. Every State’s obligation not to

allow knowingly its territory to be

used for acts contrary to the rights

of other States.

The laying of mines could not

have been accomplished without

the knowledge of the Albanian

Government.

ICJ declared that the Corfu

Channel was an international

highway therefore Albania can

only regulate the passage of war

ships and not prohibit them

altogether. Therefore as to this

issue, the sovereignty of Albania

was not violated.

BUT UK’s mine clearing operation

was illegal because it was

unauthorized by the Albanian

government.

Chorzow Factory

Barcelona Traction, Light and

Power Company

BP vs. Libya

Saudi Arabia vs. ARAMCO

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