MARTHA ROSE C. SERRANO BLOCK 2B -PIL Filartiga vs.

Pena-Irala Nicaragua vs United States Case: Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua vs United States) (Merits: focusing on matters relating to the use of force and self-defence) Year of Decision: 1986 Court: ICJ NB: This blog post will discuss only those matters relating to the use of force and self-defence that was discussed in the Nicaragua decision. The decision also discussed the jurisdiction of the Court to hear this case, the rights of an absentee party (in this case the US), the provisions and violations of the Treaty of Friendship, the applicable law and the effect of the multilateral tr eaty reservation of the US made under Article 36(2) of the Statute of the ICJ and the liability of the US under Internatio nal Humanitarian Law. Overview: The case involved military and paramilitary activities conducted by the US against Nicaragua from 1981 to 1984. Nicaragua asked the Court to find that these activities violated international law. Facts of the Case: In July 1979 the Government of President Somoza collapsed following an armed opposition led by the Frente Sandinista de Liberacibn Nacional (FSLN) . The new government installed by FSLN began to encounter armed opposition from supporters of the former Somoza Government and ex-members of the National Guard. The US initially supportive of the new government changed its attitude when, according to the US, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador. In April 1981 it terminated US aid to Nicaragua and in September 1981, according to Nicaragua, the US decided to plan and undertake activities directed against Nicaragua. The armed opposition to the new Government was conducted mainly by (1) Fuerza Democratica Nicaragense (FDN), which operated along the border with Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica, (see map of the region). Initial support to these groups fighting against the Nicaraguan Government (called contras) was covert. Later, the US officially acknowledged its support (for example: In 1983 budgetary legislation e nacted by the United States Congress made specific provision for funds to be used by United States intelligence agencies for supporting di rectly or indirectly military or paramilitary operations in Nicaragua). Nicaragua also alleged that the US is effectively in control of the contras, the US devised their strategy and directed their tactics and that they were paid for and directly controlled by US personal and some attacks were carried out by US military with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil installations and a naval base. Nicaragua alleged that US aircrafts flew over Nicaraguan territory to gather intelligence, supply to the contras in the field and to intimidate the population. Questions before the Court: 1. Did the US breach its customary international law obligation not to intervene in the affairs of another State when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua? 2. Did the US breach its customary international law obligation not to use force against another State when it directly attacked Nicaragua in 1983 1984 and when its activities in bullet point 1 above resulted in the use of force? 3. Can the military and paramilitary activities that the US undertook in and against Nicaragua be justified as collective selfdefence? 4. Did the US breach its customary international law obligation not to violate the sovereignty of another State when it directed

or authorized its aircrafts to fly over Nicaraguan territory and by acts referred to in bullet point 2 above? 5. Did the US breach its customary international law obligations not to violate the sovereignty of another State, not to intervene in its affairs, not to use force against another State and not to interrupt peaceful maritime commerce when it laid mines in the internal waters and the territorial sea of Nicaragua? ICJ decision: US violated CIL in relation to bullet points 2, 3, 4 and 5 above. The Court rejected the US justification of collective self-defence and held that US violated the prohibition on the use of force. Relevant Findings of the Court: The US breached its customary international law obligation not to use force against another State: (1) when it directly attacked Nicaragua in 1983 1984; and (2) when its activities with the contra forces resulted in the threat or use of force. See paras 187 201. The Court held that: 1. The prohibition on the use of force is a principle that can be found in Article 2(4) of the UN Charter and in customary international law (CIL). 2. Use of force can be: (1) most grave forms of the use of force (i.e. those that constitute an armed attack) and (2) less grave forms of use of force (i.e. organizing, instigating, assisting or participating in acts of civil strife and terrorist acts i n another State when the acts referred to involve a threat or use of force). 3. The US violated the CIL prohibition on the use of force when it laid mines in Nicaraguan ports and attacked its ports, oil installations and a naval base. If however, the force was used in collective self- defence, then the US was justified in the use of force (see below on self-defence). 4. The US violated the CIL prohibition on the use of force when it assisted the contras by organizing or encouraging the organization of irregular forces and armed bands for incursion into the territory of another state and participating in acts of civil strifein another State and when these acts involved the threat or use of force. 5. The supply of funds to the contras does not violate the prohibition on the use of force. while the arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua the Court considers that the mere supply of funds to the contras, while undoubtedly an act of intervention in the internal affairs of Nicaragua does not in itself amount to a use of force. (para 227) What is an armed attack? An armed attack includes (1) action by regular armed forces across an international border; and (2) the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its substantial involvement therein [the second point is taken from Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the Definition of Aggression]. Mere frontier incidents are not considered as an armed attack unless because of its scale and effects it would have been classified as an armed attack if it was carried out by regular forces. Assistance to rebels in the form of provision of weapons or logistical support does not constitute an armed attack it can be regarded as a threat or use of force, or an intervention in the interna1 or external affairs of other States (see para 195, 230). Under Article 51 of the UN Charter and under CIL self-defence is only available against a use of force that amounts to an armed attack (para 211). US cannot justify the military and paramilitary activities that it undertook in and against Nicaragua as collective selfdefence. 1. CIL allows for exceptions to the prohibition on the use of force including the right of individual or collective self-defence. US asserted that the Charter itself acknowledges the existence of this CIL right when it talks of the inherent right of a Stat e (para.193). 2. When a State claims that it used force in collective self-defence, the Court will look into two aspects : (1) whether the circumstances required for the exercise of self-defence existed and (2) whether the steps taken by the State, which was acting in self-defence, corresponds to the requirements of international law (i.e. necessity and proportionality). 3. Several criteria must be met for a State to exercise the right of individual or collective self-defence: (1) A State must have been the victim of an armed attack;

(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an armed attack took place nor not is done by the state who was subjected to the attack. A third State cannot exercise a right of collective self-defence based its (the third States) own assessment]; and (3) in the case of collective self-defence the victim State must request for assistance (there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack); (4) the State does not, under CIL, have the same obligation as under Article 51 of the UN Charter to report to the Security Council that an armed attack happened but the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence (see below). Para 200: At this point, the Court may consider whether in customary international law there is any requirement corresponding to that found in the treaty law of the United Nations Charter, by which the State claiming to use the right of individual or collective self-defence must report to an international body, empowered to determine the conformity with international law of the measures which the State is seeking to justify on that basis. Thus Article 51 of the United Nations Charter requires that measures taken by States in exercise of this right of self-defence must be immediately reported to the Security Council. As the Court has observed above (paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in customary international law, may well be so unencumbered with the conditions and modalities surrounding it in the treaty. Whatever influence the Charter may have had on customary international law in these matters, it is clear that in customary international law it is not a condition of the lawfulness of the use of force in self-defence that a procedure so closely dependent on the content of a treaty commitment and of the institutions established by it, should have been followed. On the other hand, if self-defence is advanced as a justification for measures which would otherwise be in breach both of the principle of customary international law and of that contained in the Charter, it is to be expected that the conditions of the Charter should be respected. Thus for the purpose of enquiry into the customary law position, the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence (emphasis added)(See also paras 232 -236). 4. The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and Honduras in determining whether an armed attack was undertaken by Nicaragua against the three countries which in turn would necessitate self-defence (paras 230 236) . The Court referred to statements made by El Salvador, Costa Rica, Honduras and the US before the Security Council. None of the countries who were allegedly subject to an armed attack by Nicaragua (1) declared themselves as a victim of an armed attack or request assistance from the US in self-defence at the time when the US was allegedly acting in collective self-defence; and (2) the US did not claim that it was acting under Article 51 of the UN Charter and it did not report that it was so acting to the Security Council. US cannot justify its use of force as collective self-defence. 5. The criteria with regard to necessity and proportionality, that is necessary when using force in self-defence was also not fulfilled (para 237).

The US breached its CIL obligation not to intervene in the affairs of another State when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua. 1. The principle of non- intervention means that every State has a right to conduct its affairs without outside interference I.e it forbids States or groups of States to intervene directly or indirectly in internal or external affairs of other States. . This is a corollary of the principle of sovereign equality of States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State (para 205). 2. Nicaragua stated that the activities of the US was aimed at (1) overthrowing the government of Nicaragua and (2) substantially damaging the economy and weakening the political system so as to coerce the Government of Nicaragua to accept US political demands. The Court held: first, that the United States intended, by its support of the contras, to coerce the Government of Nicaragua in respect of matters

in which each State is permitted, by the principle of State sovereignty, to decide freely (see paragraph 205 above) ; and secondly that the intention of the contras themselves was to overthrow the present Government of Nicaragua The Court considers that in international law, if one State, with a view to the coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that amounts to an intervention by the one State in the internal affairs of the other, whether or not the political objective of the State giving such support and assistance is equally far reaching. 3. The financial support, training, supply of weapons, intelligence and logistic support given by the US to the contras was a breach of the principle of non-interference. no such general right of intervention, in support of an opposition within another State, exists in contemporary international law, even if such a request for assistance is made by an opposition group of that State (see para 246 for more). 4. Interesting, however, the Court also held that providing humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law (para 242). 5. In the event one State intervenes in the affairs of another State, the second State has a right to intervene in a manner that is short of an armed attack (210). While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of gravity cannot as the Court has already observed (paragraph 21 1 above). produce any entitlement to take collective countermeasures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate counter-measures on the part of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third State, the United States, and particularly could not justify intervention involving the use of force. The US breached its customary international law obligation not to violate the sovereignty of another State when it directed or authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its territorial sea. The basic concept of State sovereignty in CIL is found in Article 2(1) of the UN Charter. State sovereignty extends to its internal waters, territorial sea and the air space above its territory. The US violated CIL when it laid mines in the territorial sea and internal waters of Nicaragua and when it carried out unauthorized overflights over Nicaraguan airspace by aircrafts belong to or under the control of the US. Case of the S.S. Lotus The Paquete Habana Facts: Two fishing vessels that were fishing out of Havana, Cuba, sailed under a Spanish flag were fishing off the Cuba coast. They were owned a Spanish subject that was born in Cuba and living in Havana. The vessels were commanded by a subject of Spain, also residing in Havana. Their cargo consisted of fresh fish, caught by their crew. The fish were kept alive to be sold alive. Until stopped by the blockading squadron they had no knowledge of the existence of the war or of any blockade. She had no arms or ammunition on board, and made no attempt to run the blockade after she knew of its existence, nor any resistance at the time of the capture. Procedural History: DC for the Southern District of Florida condemned the two fishing vessels and their cargos as prizes of war. Issues: Whether a court may look to established rules of other nations when their own nation lacks any treaty, legislation, proclamation, or instruction that is on point for a particular matter? Analysis: 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 in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. In 1403 and 1406 Henry IV ordered that fisherman of foreign nations become under his special protection so that the fisherman in the course of their duty would not be hindered, interfered, or molested by any of his subjects. The doctrine which exempts coast fishermen, with their vessels and cargoes, from capture as prize of war, has been familiar to the United States from the time of the War of Independence. On June 5, 1779, Louis XVI., our ally in that war, addressed a letter to his admiral, informing him that the wish he had always had of alleviating, as far as he could, the hardships of war, had directed his attention to that class of his subjects which devoted itself to the trade of fishing, and had no other means of livelihood; that he had thought that the example which he should give to his enemies, would determine them to allow to fishermen the same facilities which he should consent to grant; and that he had therefore given orders to the commanders of all his ships not to disturb English fishermen, nor to arrest their vessels laden with fresh fish, provided they had no offensive arms, and were not proved to have made any signals creating a suspicion of

intelligence with the enemy; and the admiral was directed to communicate the Kings inte ntions to all officers under his control. Among the standing orders made by Sir James Marriott, Judge of the English High Court of Admiralty, was one of April 11, 1780, by which it was ordered that all causes of prize of fishing boats or vessels taken fro m the enemy may be consolidated in one monition, and one sentence or interlocutory, if under 50 tons burthen, and not more than 6 in number. But by the stateme nts of his successor, and of both French and English writers, it apears that England, as well as France, during the American Revolutionary War, abstained from interfering with the coast fisheries. In the treaty of 1785 between the United States and Prussia, provided that, if war should arise between the contracting parties, all women and children, s cholars of every faculty, cultivators of the earth, artisans, manufacturers, and fishermen, unarmed and inhabiting unfortified towns, villages, or places, and in general all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the enemy, into whose power, by the events of war, they may happen to fall; but if anything is necessary to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price. Here was the clearest exemption from hostile molestation or seizure of the persons, occupations, houses, and goods of unarmed fishermen inhabiting unfortified places. Wheatons International Laws, says: In many treaties and decrees, fishermen catching fish as an article of food are added to the class of persons whose occupation is not to be d isturbed in war. The English government, soon afterwards, more than once unqualifiedly prohibited the molestation of fishing vessels employed in catching and bringing to market fresh fish. On May 23, 1806, it was ordered in council that all fishing vesse ls under Prussian and other colors, and engaged for the purpose of catching fish and conveying them fresh to market, with their crews, cargoes, and stores, shall not be molested on their fishing voyages and bringing the same to market. In the war with Mexico, in 1846, the United States recognized the exemption of coast fishing boats from capture. It appears that Commodore Conner, commanding the Home Squadron blockading the east coast of Mexico, on May 14, 1846, wrote a letter to Mr. Bancroft, the Secretary of the Navy, inclosing a copy of the commodores instructions to the commanders of the vessels of the Home Squadron, showing the principles to be observed in the blockade of the Mexican ports, one of which was that Mexican boats engaged in fishing on an y part of the coast will be allowed to pursue their labors unmolested; and that on June 10, 1846, those instructions were approved by the Navy Department. In the treaty of peace between the United States and Mexico, in 1848, were inserted the very words of the earlier treaties with Prussia, already quoted, forbidding the hostile molestation or seizure in time of war of the persons, occupations, houses, or goods of fishermen. France in the Crimean war in 1854, and in her wars with Italy in 1859 and with Germany in 1870, by general orders, forbade her cruisers to trouble the coast fisheries, or to seize any vessel or boat engaged therein, unless naval or military operations should make it necessary. Since the English orders in council of 1806 and 1810, before quoted, in favor of fishing vessels employed in catching and bringing to market fresh fish, no instance has been found in which the exemption from capture of private coast fishing vessels honestly pursuing their peaceful industry has been denied by England or by any other nation. And the Empire of Japan by an ordinance promulgated at the beginning of its war with China in August, 1894, established prize courts, and ordained that th e following enemys vessels are exempt from detention, including in the exemption boats engaged in coast fisheries, as well as ships engaged exclusively on a voyage of scientific discovery, philanthrophy, or religious mission. Wheaton observes: Without wishing to exaggerate the importance of these writers, or to substitute, in any case, their authority for the principles of reason, it may be affirmed that they are generally impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary principles. Chancellor Kent says: In the absence of higher and more authoritative sanctions, the ordinances of foreign states, the opinions of eminent statesmen, and the writings of distinguished jurists, are regarded as of great consideration on questions not settled by conventional law. In cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their maxims; and no civilized nation that does not arrogantly set all ordinary law and justice at defiance will venture to disregard the uniform sense of the established writers on international law. This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent states, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war. This rule of international law is one which prize courts administering the law of nations are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter. Holding: Yes Judgment: Ordered, that the decree of the District Court be reversed, and the proceeds of the sale of the vessel, together with the proceeds of any sale of her cargo, be restored to the claimant, with damages and costs. Rule: A court may look to established rules of other nations when their own nation lacks any treaty, legislation, proclamation, or instruction that is on point for a particular matter. Where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Dissent or Concurrence: Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan and Mr. Justice McKenna, dissenting: The district court held these vessels and their cargoes liable because not satisfied that as a matter of law, without any ordinance, trea ty, or proclamation, fishing vessels of this class are exempt from seizure. This court holds otherwise, not because such exemption is to be

found in any treaty, legislation, proclamation, or instruction granting it, but on the ground that the vessels were exempt by reason of an established rule of international law applicable to them, which it is the duty of the court to enforce. The Fisheries Case (United Kingdom v. Norway) The Fisheries Case (United Kingdom v. Norway) was the culmination of a dispute, originating in 1933, over how large an area of water surrounding Norway was Norwegian waters (that Norway thus had exclusive fishing rights to) and how much was high seas (that the UK could thus fish). On 24 September 1949, the UK requested that the International Court of Justice determine how far Norways territorial claim extended to sea, and to award the UK dam ages in compensation for Norwegian interference with UK fishing vessels in the disputed waters, claiming that Norways claim to su ch an extent of waters was against international law. On 18 December 1951, the ICJ decided that Norways claims to the waters we re not inconsistent with international laws concerning the ownership of local sea-space. I. Case of the S.S. Wimbledon (PCIJ, Ser. A., No. 1, 1923) II. Facts A. The British, French, Italian, and Japanese Governments filed an application with the registry of the court (PCIJ) on January 16, 1923 against the German Government for refusing a steamship right of passage. The PCIJ heard and decided the case on August 17, 1923. B. On March 21, 1921, the German government refused to let the English steamship Wimbledon (chartered by a French company Les Affreteurs Reunis) pass through the Kiel Canal. The ship picked up 4,200 tons of ammunition and artillery stores in Salonica, Greece, to be brought to the Polish Naval Base at Danzig, but when the ship arrived at the entrance to the Kiel Canal it was refused passage because of the German neutrality order in accordance with the Russo-Polish war. The French Ambassador in Berlin asked the Germans to allow the S.S. Wimbledon passage, and several days later the German Government responded that it couldnt allow the vessel to pass because of the military cargo that it carried. The French company then told the ship to go to Danzig via the Danish Straits, resulting in the cargo arriving thirteen days late- eleven for detainment by the Germans and two for the extra time it took to go the alternate route. Diplomatic relations between the states did not end in a resolution, so the matter was then brought before the League of Nations and thus the Permanent Court of International Justice to hear the case. C. The plaintiffs in this case are the British, French, Japanese, and Italian governments who claim that Germany violated Articles 380 to 386 of the Treaty of Versailles, which, among other things, states that the Kiel Canal will rema in free and open to the vessels of commerce of war of all nations at peace with Germany on terms of entire equality. The plaintiffs argu e that despite the cargo on the ship, the nation chartering the ship was not at war with Germany and thus should have been allowed passage. D. The defendant in this case is the government of Germany who claims that despite the articles of the Treaty of Versailles, they were under no obligation to allow the passage of the S.S. Wimbledon because they issued a Neutrality Order for the Russo-Polish War, which would be broken by allowing weapons to be shipped to Poland. III. Questions A. Is a state allowed to refuse free passage to a vessel of another state based on the cargo that it is holding if there is a treaty demanding free passage, but another order stating neutrality from military conflict? B. Can a state be obligated to allow free passage, even if this denies the state its right to neutrality in times of war? IV. Decision The Court ruled that Germany had no right to refuse entrance to the S.S. Wimbledon on behalf of the cargo that it was carrying. In addition, the Court claimed that the Kiel Canal is no longer in the same category as normal internal waterways that are ruled at the discretion of the state they are housed in, but rather it should be considered an international waterway as laid out in the Treaty of Versailles. Thus, the Kiel Canal should be open to all vessels, regardless of state, as long as that state is at peace with Germany, because the point of the canal is to provide easier access to the Baltic. Since the Treaty of Versailles specifically said that the canal could deny access to states at war with Germany, it obviously was not a mistake that it did not include the closure of the canal if Germany was neutral in a war between two other states. Also, the intent of the writes of the Treaty of Versailles was to have the canal be an international waterway to the Baltic. In addition, the Court cited precedent from the Suez and Panama Canals as illustrations to the invalidity of Germanys claim. Finally, the Court dismissed Germanys claim that their Neutrality Order superseded the provisions of the Treaty of Versailles. V. Principles A. A key international law issue in this case is that a neutrality order issued by an individual state cannot hold more power than the provisions of an international treaty of peace. B. This case asserts that the right of passage in internal waterways can become designated as not being considered internal waterways, and thus the state has limited rights over its control, whereas the international community has a much greater say. C. If a states vessel is denied access to a waterway, it affects the commerc e and rights of all states who may have vested interests in the area, and thus these states have the jurisdiction to bring a case against the state who is restricting the rights of free passage. VI. Conclusion The importance of this case lies in that it shows that despite a state having a waterway within its boundaries, it does not al ways have ultimate control over the right of passage of other states vessels. This case put a limit on some state sovereignty and gave more power to international law in that it affirmed that international peace treaties hold more weight than individual Neutrality Orders of specific states. This decision showed that the PCIJ considered the Treaty of Versailles to be binding and not open to interpretation by individual states that signed the treaty.

Kuroda vs. Jalandoni, 83 Phil. 185, L - 2662 March 26, 1949 Facts : Shigenori Kuroda, a formerly a Lietenant-General of the japanese imperial army and commanding general of the japanese imperial forces in the philippines during a period covering 1943 and 1944 who is now charge before a military commission convened by the chief of staff of the armed forces of the philippines with having unlawfully disregarded and failed to discharge his duties as such command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and

prisoners of the imperial japanese forces in the violations of the laws and customer of war. Petitioner argues that respondent Military Commission has no jurisdiction to try petitioner for its acts committed in violation of Hague Convention and the Geneva convention because the Philippines is not signatory to Hague Convention and signed the Geneva only in 1947. He also challenges the participation of the two American attorneys in the prosecution of his case on the ground that said attorneys are not qualified to practice law in the Philippines. Issues: 1. Whether or not the executive order no. 68 is a ground for the violations of our provision of constitutions law and to our local law. 2. Whether or not Atty. Melville S. Hussey and Robert Port is allowed to practice the law professions in the philippines.

Ruling : The court holds that the Executive Order is valid and Constitutional. Article 2 of our Constitution provides in its section 3 that The Philippines renounces war as an instruments of national policy and adopts the generally accepted principle of international law as part of the law of nation.

In accordance with the generally accepted principles of international law of the present day, including the Hague and Geneva Convention and significant precedents of international jurisprudence established by the U.N, all the persons, military or civilian, who have been guilty of planning, preparing, or waging a war of aggression and commission of the crimes and offenses consequential and incidental thereto, in violation of the laws and customs of war of humanity and civilization, are held accountable therefore. Consequently, in the promulgation and enforcement of Executive Order no. 68, the President of the Philippines has acted in conformity with the generally accepted principles and policies of international law which are part our Constitution.

On the second issue, the court ruled that the appointment of the two American attorneys is not violative of our national sovereignty. It is only fair and proper that the U.S which has submitted the vindication of crimes against her government and her people to a tribunal of our nation should be allowed representation in the trial of those very crimes. The lest that we could do in the spirit of comity is to allow this representation in said trial. The petition was denied.

BORIS MEJOFF VS. DIRECTOR OF PRISONS 90 Phil. 70 (1979) Court of the Philippines

Facts: The case is a second petition for habeas corpus filed by petitioner Boris Mejoff, the first having been denied in a decision of this Court of July 30, 1949. Herein petitioner is an alien of Russian decent who was brought from Shanghai by the Japanese forces. Upon liberation, he was arrested as Japanese spy by U.S. Army Counter Intelligence Corps and was handed to the Commonwealth Government for disposition in accordance with Commonwealth Act No. 682. Thereafter, the People Court ordered his release but the Deportation Board taking his case up declared the petitioner as an illegal alien for lack of necessary documents presented upon entering the Philippines. The immigration officials then ordered that the petitioner be deported on the first available transportation to Russia but failed to do so in several times. While the arrangements for his departure are being made and for the best interest of the country, petitioner Mejoff was detained at the Bilibid Prison in Muntinlupa. Over two years having elapsed since the decision aforesaid was promulgated, the Government has not found ways and means of removing the petitioner out of the country.

Issue: Whether or not prolonged detention of the petitioner is warranted by law and the Constitution. Held:

The court ruled in favor of the petitioner and commanded the respondents to release the former from custody subject to terms and conditions. The petitioners unduly prolonged detention would be unwarranted by law and the Constitution, if the only purpose of the detention be to eliminate a danger that is by no means actual, present, or uncontrollable. The possibility that he might join or aid disloyal elements if turned out at large does not justify prolonged detention, the remedy in that case being to impose conditions in the order of release and exact bail in a reasonable amount with sufficient sureties. Hence, a foreign national, not enemy, against whom no criminal charges have been formally made or judicial order issued, may not be indefinitely be kept in detention. He has the right to life and liberty and all other fundamental rights as applied to human beings, as proclaimed in the Universal Declaration of Human Rights approved by the General Assembly of the United Nations, of which the Philippines is a member. | 2D HAW PIA v CHINA BANKING CORPORATION FACTS Haw Pia had previously contracted a loan from China Banking Corporation in the amount of P5,103.35, which, according to Haw Pia, had been completely paid, on different occasions from 1942 to 1944 through Bank of Taiwan, Ltd., which was appointed by the Japanese Military authorities as liquidator of China Banking Corp. With this, Haw Pia instituted an action against China Banking Corp. to compel the bank to execute a deed of cancellation of mortgage on the property used as security for the loan and to deliver its title. However, upon service of summons, China Banking Corp. demanded from Haw Pia for the payment of the sum of its indebtedness with interests, which also constituted its counter claim in its answer. RTC rendered a decision in favor of China Banking Corp. on the basis that there was no evidence to show that Bank of Taiwan was authorized by China Banking Corp. to accept Haw Pia's payment and that Bank of Taiwan, as an agency of the Japanese invading army, was not authorized under the international law to liquidate the business of China Banking Corp. As such, Haw Pia's payment to Bank of Taiwan has not extinguished his indebtedness to China Banking Corp. ISSUE Whether the Japanese Military Administration had authority to order the liquidation of the business of China Banking Corp. and to appoint Bank of Taiwan as liquidator authorized as such to accept payment HELD YES. Under international law, the Japanese Military authorities had power to order the liquidation of China Banking Corp. and to appoint and authorize Bank of Taiwan as liquidator to accept the payment in question, because such liquidation is not confiscation of the properties of China Banking Corp., but a mere sequestration of its assets which required its liquidation. The sequestration or liquidation of enemy banks in occupied territories is authorized expressly, not only by the US Army and Naval Manual of Military Government and Civil Affairs, but also similar manuals of other countries, without violating Art. 46 or other articles of the Hague Regulations. They do not amount to an outright confiscation of private property. The purpose of such sequestration, as expounded in the Annual Report of the Office of the Alien Custodian, is that enemy-owned property can be used to further the interest of the enemy and to impede their war efforts. All enemy- controlled assets can be used to finance propaganda, espionage, and sabotage in these countries or in countries friendly to their cause. It is presumed that Japan, in sequestering and liquidating China Banking Corp., must have acted in accordance, either with her own Manual of the Army and Navy and Civil Affairs OR with her Trading with the Enemy Act, and even if not, it being permitted to the Allied Nations, specially the US and England, to sequestrate, impound, and block enemy properties found within their own domain or in enemy territories occupied during the war by their armed forces, and it not being contrary to Hague Regulations or international law, Japan had also the right to do the same in the Philippines by virtue of the international law principle that "what is permitted to one belligerent is also allowed to the other." Taking these into consideration, it appears that Japan did not intend to confiscate or appropriate the assets of said banks or the debts due them from their debtors. The fact that the Japanese Military authorities failed to pay the enemy banks the balance of the money collected by the Bank of Taiwan from the debtors of the said banks, did not and could not change the sequestration by them of the bank's assets during the war, into an outright confiscation thereof. It was physically impossible for the Japanese Military authorities to do so because they were forcibly driven out of the Philippines, following the readjustment of rights of private property on land seized by the enemy provided by the Treaty of Versailles and other peace treaties entered into at the close of WWI. The general principles underlying such arrangements are that the owners of properties seized are entitled to receive compensation for the loss or damage inflicted on their property by the emergency war measures taken by the enemy. Since Japan war notes were issued as legal tender, Japan was bound to indemnify the aggrieved banks for the loss or damage on their property, in terms of Phil. Pesos of US $. Since the Japanese Military Forces had power to sequestrate and impound the assets of China Banking Corp. and to appoint Bank of Taiwan as liquidator, it follows that payments of Haw Pia to Bank of Taiwan extinguished his obligations to China Banking Corp.

Mijares v. Ranada Facts: Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom suffered human rights violations during the Marcos era, obtained a Final Judgment in their favor against the Estate of the late Ferdinand Marcos amounting to roughly $1.9B in compensatory and exemplary damages for tortuous violations of international law in the US District Court of Hawaii. This Final Judgment was affirmed by the US Court of Appeals. As a consequence, Petitioners filed a Complaint with the RTC Makati for the enforcement of the Final Judgment, paying P410 as docket and filing fees based on Rule 141, 7(b) where the value of the subject matter is incapable of pecuniary estimation. The Estate of Marcos however, filed a MTD alleging the non-payment of the correct filing fees. RTC Makati dismissed the Complaint stating that the subject matter was capable of pecuniary estimation as it involved a judgment rendered by a foreign court ordering the payment of a definite sum of money allowing for the easy determination of the value of the foreign judgment. As such, the proper filing fee was P472M, which Petitioners had not paid. Issue: Whether or not the amount paid by the Petitioners is the proper filing fee. Held: Yes, but on a different basisamount merely corresponds to the same amount required for other actions not involving property. RTC Makati erred in concluding that the filing fee should be computed on the basis of the total sum claimed or the stated value of the property in litigation. The Petitioners Complaint was lodged against the Estate of Marcos but it is clearly based on a judgment, the Final Judgment of the US District Court. However, the Petitioners err in stating that the Final Judgment is incapable of pecuniary estimation because it is so capable. On this point, Petitioners state that this might lead to an instance wherein a first level court (MTC, MeTC, etc.) would have jurisdiction to enforce a foreign judgment. Under the B.P.129, such courts are not vested with such jurisdiction. 33 of B.P.129 refers to instances wherein the cause of action or subject matter pertains to an assertion of rights over property or a sum of money. But here, the subject matter is the foreign judgment itself. 16 of B.P.129 reveals that the complaint for 13 enforcement of judgment even if capable of pecuniary estimation would fall under the jurisdiction of the RTCs. Thus, the Complaint to enforce the US District Court judgment is one capable of pecuniary estimations but at the same time, it is also an action based on judgment against an estate, thus placing it beyond the ambit of 7(a) of Rule 141. What governs the proper computation of the filing fees over Complaints for the enforcement of foreign judgments is 7(b)(3), i nvolving other actions not involving property. Pharmaceutical and Health Care Association of the Philippines vs. Duque Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-respondent since respondents issued the questioned RIRR in their capacity as officials of said executive agency.1Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by virtue of the legislative powers granted to the president under the Freedom Constitution. One of the preambular clauses of the Milk Code states that the law seeks to give effect to Article 112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes.In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides that State Parties should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society, specially parents and children, are informed of the advantages of breastfeeding. On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.

Issue: . Whether Administrative Order or the Revised Implementing Rules and Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;

Held: YES under Article 23, recommendations of the WHA do not come into force for members,in the same way that conventions or agreements under Article 19 and regulations under Article 21 come into force. Article 23 of the WHO Constitution reads: Article 23. The Health Assembly shall have authority to make recommendations to Members with respect to any matter within the competence of the Organization for an international rule to be considered as customary law, it must be established that such rule is being followed by states because they consider it obligatory to comply with such rules Under the 1987 Constitution, international law can become part of the sphere of domestic law either

By transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature