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ICARAGUA VS UNITED STATES

(SUMMARY) ON SELF DEFENCE AND


USE OF FORCE
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 matters on the use of force and self-defence. If
you would like to read about the impact of the Nicaragua judgement on
customary international law and the US multilateral reservation please click
here.
Overview: The case involved military and paramilitary activities conducted by
the United States 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 meet 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 United States, it found that Nicaragua was
providing logistical support and weapons to guerrillas in El Salvador. In April
1981 it terminated United States aid to Nicaragua and in September 1981,

according to Nicaragua, the United States 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 US
support to these groups fighting against the Nicaraguan Government (called
contras) was covert. Later, the United States officially acknowledged its
support (for example: In 1983 budgetary legislation enacted by the United
States Congress made specific provision for funds to be used by United States
intelligence

agencies

for

supporting

directly

or

indirectly

military

or

paramilitary operations in Nicaragua).


Nicaragua also alleged that the United States is effectively in control of
the contras, the United States devised their strategy and directed their tactics
and that they were paid for and directly controlled by United States personal.
Nicaragua also alleged that some attacks were carried out by United
States 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 aircrafts
belonging to the United States flew over Nicaraguan territory to gather
intelligence, supply to the contras in the field and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after
refusing to accept the ICJs jurisdiction to decide the case. The United States at
the jurisdictional phase of the hearing, however, stated that it relied on an
inherent right of collective self-defence guaranteed in A. 51 of the UN Charter
by providing, upon request, proportionate and appropriate assistance to
Costa Rica, Honduras and El Salvador in response to Nicaraguas alleged acts
aggression against those countries (paras. 126, 128).

Questions before the Court:

Did the United States 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?

Did the United States 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?

If so, can the military and paramilitary activities that the United
States undertook in and against Nicaragua be justified as collective selfdefence?

Did the United States 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?

Did the United States 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: The United States violated customary international law in relation
to bullet points 1, 2, 4 and 5 above. On bullet point 3, the Court found that the
United States could not rely on collective self-defence to justify its use of force
against Nicaragua.

Relevant Findings of the Court:


1. The court held that the United States 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:

The prohibition on the use of force is found in Article 2(4) of the UN


Charter and in customary international law.

In a controversial finding the court sub-classified the use of force as: (1)
the most grave forms of the use of force (i.e. those that constitute an
armed attack) and (2) the less grave form (i.e. organizing, instigating,
assisting or participating in acts of civil strife and terrorist acts in another
State when the acts referred to involve a threat or use of force not
amounting to an armed attack).

The United States violated the customary international law prohibition on


the use of force when it laid mines in Nicaraguan ports. It violated this
prohibition when it attacked Nicaraguan ports, oil installations and a
naval base (see below). The United States could justify its action on
collective self-defence, if certain criteria were met this aspect is
discussed below.

The United States violated the customary international law 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 participated in acts of
civil strifein another State when these acts involved the threat or use
of force.

The supply of funds to the contras did not violate the prohibition on the
use of force. Nicaragua argued that the timing of the offensives against it
was determined by the United States: i.e. an offensive could not be
launched until the requisite funds were available. The Court held that
it does not follow that each provision of funds by the United States
was made to set in motion a particular offensive, and that that offensive
was planned by the United States. The Court held further that while the
arming and training of the contras involved the threat or use of force
against Nicaragua, the supply of funds, in it self, only amounted to an
act of intervention in the internal affairs of Nicaragua (para 227) this
aspect is discussed below.

What is an armed attack?

A controversial but interesting aspect of the Courts judgement was its


definition of an armed attack. The Court held that an armed attack
included:

(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 (the States) substantial involvement therein
NB: The second point somewhat resembles 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 did not constitute an armed attack it can be regarded as a
threat or use of force, or an intervention in the internal or external affairs
of other States (see paras 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).
NB: In in the Case Concerning Oil Platforms and the advisory opinion on the
Legal Consequences of of the Construction of a Wall in the Occupied Palestinian
Territory (hereinafter called the Palestine wall case) the ICJ upheld the definition
of armed attack proposed in the Nicaragua case. In the Palestinian wall case,
the attacks from which Israel was claiming self defence originated from nonState actors. However, the Court held that Article 51s inherent right of self
defence was available to one State only against another State (para 139).
Judges Higgins, Buergenthal and Kooijmans opposed this narrow view. Articles
on State Responsibility, prepared by the International Law Commission,
provided significant guidance as to when acts of non-State actors may be
attributed to States. These articles, together with recent State practice relating
attacks on terrorists operating from other countries (see legal opinions
surrounding the United States attack on Afghanistan), may have widened the
scope of an armed attack, and consequently, the right of self defence,
envisaged by the ICJ.
2. The Court held that the United States could not justify its military and
paramilitary activities on the basis of collective self-defence.

Customary international law allows for exceptions to the prohibition on


the use of force including the right to individual or collective selfdefence (for a difference between the two forms of self defence,

click here). The United States, at an earlier stage of the proceedings, had
asserted that the Charter itself acknowledges the existence of this
customary international law right when it talks of the inherent right of a
State under Article 51 of the Charter (para.193).

When a State claims that it used force in collective self-defence, the Court
would 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. did it comply with the
principles of necessity and proportionality).

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 customary international law, 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).
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 (See paras
200, 232 -236).

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 United
States 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
United States in self-defence at the time when the United States was
allegedly acting in collective self-defence; and (2) the United States 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. The Court
concluded that the United States cannot justify its use of force as
collective self-defence.

The criteria with regard to necessity and proportionality, that is


necessary when using force in self-defence was also not fulfilled (para
237).

3. The Court held that the United States 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.

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).

Nicaragua stated that the activities of the United States were aimed to
overthrow the government of Nicaragua and to substantially damage the
economy and weaken the political system to coerce the Government of
Nicaragua to accept various political demands of the United States. 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.

The financial support, training, supply of weapons, intelligence and


logistic support given by the United States 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).

However, in a controversial finding, the Court held that the United States
did not devise the strategy, direct the tactics of the contras or exercise
control on them in manner so as to make their acts committed in
violation of international law imputable to the United States (see in this
respect Determining US responsibility for contra operations under
international law 81 AMJIL 86).T he Court concluded that a number of
military and paramilitary operations of the contras were decided and
planned, if not actually by United States advisers, then at least in close
collaboration with them, and on the basis of the intelligence and logistic
support which the United States was able to offer, particularly the supply
aircraft provided to the contras by the United States but not all contra
operations reflected strategy and tactics wholly devised by the United
States.

In sum, the evidence available to the Court indicates that the various forms of
assistance provided to the contras by the United States have been crucial to the
pursuit of their activities, but is insufficient to demonstrate their complete
dependence on United States aid. On the other hand, it indicates that in the
initial years of United States assistance the contra force was so dependent.
However, whether the United States Government at any stage devised the
strategy and directed the tactics of the contras depends on the extent to which
the United States made use of the potential for control inherent in that
dependence. The Court already indicated that it has insufficient evidence to
reach a finding on this point. It is a fortiori unable to determine that the contra
force may be equated for legal purposes with the forces of the United
StatesThe Court has taken the view (paragraph 110 above) that United States
participation, even if preponderant or decisive, in the financing, organizing,
training, supplying and equipping of the contras, the selection of its military or
paramilitary targets, and the planning of the whole of its operation, is still
insufficient in itself, on the basis of the evidence in the possession of the Court,

for the purpose of attributing to the United States the acts committed by the
contras in the course of their military or paramilitary operations in Nicaragua.
All the forms of United States participation mentioned above, and even the
general control by the respondent State over a force with a high degree of
dependency on it, would not in themselves mean, without further evidence, that
the United States directed or enforced the perpetration of the acts contrary to
human rights and humanitarian law alleged by the applicant State. Such acts
could well be committed by members of the contras without the control of the
United States. For this conduct to give rise to legal responsibility of the United
States, it would in principle have to be proved that that State had effective
control of the military or paramilitary.

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).

In the event one State intervenes in the affairs of another State, the
victim 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 selfdefence, 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 countermeasures 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 countermeasures taken by a third State, the United States, and particularly could not
justify intervention involving the use of force.

4. The United States 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 ICJ examined evidence and found that in early 1984 mines were laid
in or close to ports of the territorial sea or internal waters of Nicaragua
by persons in the pay or acting ion the instructions of the United
States and acting under its supervision with its logistical support. The
United States did not issue any warning on the location or existence of
mines and this resulted in injuries and increases in maritime insurance
rates.

The court found that the United States also carried out high-altitude
reconnaissance flights over Nicaraguan territory and certain low-altitude
flights, complained of as causing sonic booms.

The basic concept of State sovereignty in customary international


law is found in Article 2(1) of the UN Charter. State sovereignty
extends to a States internal waters, its territorial sea and the air
space above its territory. The United States violated customary
international law when it laid mines in the territorial sea and
internal waters of Nicaragua and when it carried
out unauthorised overflights over Nicaraguan airspace by aircrafts
that belong to or was under the control of the United States.

Material on the Nicaragua case


The following contains a list of scholarly articles and other material that discuss
the Nicaragua case. If you would like to add to the list, please note your
suggestions in the comment box.

The judgment including separate opinions of individual judges and summaries


of the judgment and orders
The World Court and Jus Cogens, 81 AMJIL 93, Gorden A.
Christenson. Christenson argues that an independent development of the
customary law right divorced from the treaty can have wider consequences:
We have then a double irony. The Court uses the United States position
accepting the treaty norm against the threat or use of force also as a customary
norm possibly having jus cogens quality, in part, to justify taking jurisdiction as
a matter quite independent of the norm that otherwise falls under the
multilateral treaty reservation. Since there are two separate sources of the law,
the choice of the one source rather than the other means that the norm relied
upon survives the jurisdictional bar to the use of the other. Yet the two norms
are not different enough to undermine completely the content of the Charter
norm. This formalism simply masks the more interesting question of the
Courts institutional claim, given the ineffectiveness of the UN Security system,
to develop an international public order case by case, by breaking away form
the strictures of the Charter and treaty norms. The Court untied the treaty
norms from their constraints within the United Nations or regional collective
security systems, a potentially destabilizing decision, one whose consequences
are unforeseen. The decision based on the validity of an autonomous norm of
customary international law free from the Charter is a constitutive one of
potential great significance (81 AMJIL 100, 1987).
Trashing customary international law, Antony DAmato, 81 AMJIL 102
(1987) (full text): (DAmato discusses the paucity of State practice examined by
the international court of justice before concluding that the principle nonintervention formed part of customary international law. He argues that the
acceptance of General Assembly resolutions do not manifest opinio juris. He

states that the Court failed to consider that Article 2(4) continued to evolve
through the years.)
The World Courts Achievement, Richard Falk, 81 AMJIL 106 (Falk takes a
generally positive approach to the judgment, gives a good overview of the case
and Judge Shwebels dissent)
Drawing the right line, Tom J. Farer, 81 AMJIL 112 (Farer takes a cold-war
contextual approach to the judgment and supports the Courts narrow view of
an armed attack and self defence).
Some observations on the ICJs procedural and substantive innovations, Thomas
M. Franck, 81 AMJIL 116 (criticizes the determination of relevant State practice
in relation to non-intervention and the reliance on UN resolutions to
illicit opinio juris (it alleges that the Court sought to harden soft law
prematurely). Frank points out that the interventions falling short of armed
attacks would not allow States to target rebel groups in another States territory
even if the insurgency is planned, trained, armed and directed from that
territory).
Protecting the Courts institutional interests: Why not the Marbury approach?
Michael J. Glennon, 81 AMJIL 121 (discusses reservations before the ICJ and the
Courts prerogative to determine its own jurisdiction)
Discretion to decline to exercise jurisdiction, Edward Gorden, 81 AMJIL
129 (discusses the discretionary power of the court to decline to exercise its
jurisdiction at the merit stages).
The Nicaragua judgment and the future of the law of force and self-defense,
John Lawrence Hargrove 81AMJIL 135 (Hargrove criticizes the ICJs construction
of the notion of collective self defense, armed attack and forcible
countermeasures).

Somber reflections on the compulsory jurisdiction of the international court,


Mark Weston Janis, 81 AMJIL 144
Custom on a sliding scale, Frederic L. Kirgis 81 AMJIL 146 (Kirgis discusses the
relationship between State practice and opinio juris, criticizes the methods (or
lack thereof) of the Court in determining the customary law nature of Article
2(4) of the Charter. Points out that actual State practice on intervention did not
support the Courts findings).
The International Court lives unto its name, Herbert W. Briggs, 81 AMJIL 78.
Determining US responsibility for contra operations under international law,
Francis V. Boyle
Le peuple, cest moi!The world court and human rights, 81 AMJIL 173
LJIL Symposium: Discussion of the ICJ Nicaragua Judgment
The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful,
or In Between?, Lori Fisler Damrosch (Abstract: At the time the United States
withdrew from participation in the Nicaragua case at the International Court of
Justice, the US government expressed concern that the course on which the
Court may now be embarked could do enormous harm to it as an institution
and to the cause of international law. This essay examines whether or to what
extent the anticipated negative effects came to pass. It concludes that dire
predictions of harm to the Court were overstated. Twenty-five years later, the
rate at which states accept the Courts jurisdiction has held steady. Only a few
states have added jurisdictional reservations concerning military activities. The
mix of cases being brought to the Court has shifted towards a more
representative distribution. States are generally complying with the Courts
decisions, though some compliance problems remain. The most serious
negative impact has been on the willingness of the United States (still the

Courts most active litigant) to participate fully in international dispute


settlement.)
LJIL Symposium: The Nicaragua Case: Its Impact, John Dugard
LJIL Symposium: Response of Lori F. Damrosch to Comments by John
Dugard, Lori F. Damrosch
The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, by
Marcelo Kohen(Abstract: This article focuses on the analysis by the International
Court of Justice of the principle of non-intervention in domestic affairs in its
judgment of 27 June 1986 in the case concerning Military and Paramilitary
Activities in and against Nicaragua and contrasts it with the evolution of
international law and practice in this field. It is proposed that the Courts 1986
analysis not only remains of actuality today, but also constitutes a precursor to
legal developments that have since taken place. This is particularly the case
with regard to the relationship between the protection of human rights on the
one hand and the safeguard of state sovereignty and the collective security
regime on the other. The 1986 judgment helped to clarify the content of
humanitarian assistance. It constituted the starting point for the development
of this concept in a series of GA resolutions that were subsequently adopted.
The controversial doctrine of humanitarian intervention, as well as state
practice in violation of this principle, in no way led to modifying existing
international law. Similarly, the new concept of responsibility to protect, which
places emphasis on collective security and discounts unilateral action, has not
led to the disappearance of the principle of non-intervention either.)
LJIL Symposium: From Nicaragua to R2P: Continuity and Change, Andr
Nollkaemper
Brief Fact Summary. Nicaragua (P) brought a suit against the United States (D) on the ground that the United States (D)
was responsible for illegal military and paramilitary activities in and against Nicaragua. The jurisdiction of the International

Court of Justice to entertain the case as well as the admissibility of Nicaraguas (P) application to the I.C.J. was challenged
by the United States (D).
Synopsis of Rule of Law. Nicaragua (P) brought a suit against the United States (D) on the ground that the United States
(D) was responsible for illegal military and paramilitary activities in and against Nicaragua. The jurisdiction of the
International Court of Justice to entertain the case as well as the admissibility of Nicaraguas (P) application to the I.C.J. was
challenged by the United States (D).

Facts. The United States (D) challenged the jurisdiction of the I.C.J when it was held responsible for illegal military and
paramilitary activities in and against Nicaragua (P) in the suit the plaintiff brought against the defendant in 1984. Though a
declaration accepting the mandatory jurisdiction of the Court was deposited by the United States (D) in a 1946, it tried to
justify the declaration in a 1984 notification by referring to the 1946 declaration and stating in part that the declaration shall
not apply to disputes with any Central American State.
Apart from maintaining the ground that the I.C.J lacked jurisdiction, the States (D) also argued that Nicaragua (P) failed to
deposit a similar declaration to the Court. On the other hand, Nicaragua (P) based its argument on its reliance on the 1946
declaration made by the United states (D) due to the fact that it was a state accepting the same obligation as the United
States (D) when it filed charges in the I.C.J. against the United States (D).
Also, the plaintiff intent to submit to the compulsory jurisdiction of the I.C.J. was pointed out by the valid declaration it made
in 1929 with the I.C.Js predecessor, which was the Permanent Court of International Justice, even though Nicaragua had
failed to deposit it with that court. The admissibility of Nicaraguas (P) application to the I.C.J. was also challenged by the
United States (D).
Issue. (1) Is the jurisdiction to entertain a dispute between two states, if they both accept the Courts jurisdiction, within the
jurisdiction of the International Court of Justice?
(2) Where no grounds exist to exclude the application of a state, is the application of such a state to the International Court
of Justice admissible?

ORFU CHANNEL
CASE (UNITED
K I N G D O M V.
ALBANIA)
INTERNATIONAL COURT OF JUSTICE1949 I.C.J.
4, 22

FACTS
On May 15, 1946, two British ships passed through Albanias North
Corfu Channel where they were fired at by an Albanian battery.
Following this incident, the United Kingdom (plaintiff) and Albania
(defendant) entered into diplomatic discussions about the right of
British ships to pass peacefully through Albanian waters. Albania
maintained that the ships should not pass through without providing
prior notification to the Albanian government. However, the United
Kingdom maintained it had a right under international law to
innocently pass through the straits. Between May 15, 1946 and
October 22, 1946, the Albanian government allegedly placed mines
in the Corfu Channel in Albanian territorial waters. Albania was at
war with Greece, and the mines were allegedly part of its defense.
On October 22nd, British warships attempted to again pass through
the straits, but were destroyed by the mines, with loss of human
life. The United Kingdom brought suit in the International Court of
Justice (ICJ) on the ground that Albania had a duty to warn the
approaching British ships of the mines. It sought damages from
Albania. However, Albania argued that its territorial rights had
previously been violated by the British ships passing through its
straits on May 15, 1946, and that it was entitled to a satisfaction.

orfu Channel, United Kingdom v Albania, Judgment, Merits,


ICJ GL No 1, [1949] ICJ Rep 4, ICGJ 199 (ICJ 1949), 9th April
1949, International Court of Justice [ICJ]
Date:
09 April 1949
Content type:

International Court Decisions


Jurisdiction:
International Court of Justice [ICJ]
Citation(s):
ICJ GL No 1 (Official Case No)
[1949] ICJ Rep 4 (Official Citation)
ICGJ 199 (ICJ 1949) (OUP reference)
Product:
Oxford Reports on International Law [ORIL]
Module:
International Courts of General Jurisdiction [ICGJ]

Whether Albania incurred international responsibility for acts of minelaying of unproven


origin in its territorial waters of which it allegedly had no knowledge, and whether such
responsibility was also produced by Albania's failure to warn the United Kingdom of the
danger due to the mines.
Whether the United Kingdom had violated Albania's sovereignty and engaged in an illegal
use of force by sweeping mines from Albanian territorial waters after two of its ships had
suffered mine damage.
Whether Parties before the Court are required or can be compelled to produce documents
requested in evidence.

SYLUM CASE (SUMMARY)


Name of the Case: Asylum Case (Columbia/Peru); Year of the decision: 1950;
and Court: ICJ.
Overview:
Columbia granted asylum to a Peruvian, accused of taking part in a military
rebellion in Peru. Was Columbia entitled to make a unilateral and definitive
qualification of the offence (as a political offence) in a manner binding on Peru

and was Peru was under a legal obligation to provide safe passage for the
Peruvian to leave Peru?
Facts of the Case:
Peru issued an arrest warrant against Victor Raul Haya de la Torre in respect of
the crime of military rebellion which took place on October 3, 1949, in Peru. 3
months after the rebellion, Torre fled to the Colombian Embassy in Lima, Peru.
The Colombian Ambassador confirmed that Torre was granted diplomatic
asylum in accordance with Article 2(2) of the Havana Convention on Asylum of
1928 and requested safe passage for Torre to leave Peru. Subsequently, the
Ambassador also stated Colombia had qualified Torre as a political refugee in
accordance with Article 2 Montevideo Convention on Political Asylum of 1933
(note the term refugee is not the same as the Refugee Convention of 1951).
Peru refused to accept the unilateral qualification and refused to grant safe
passage.
Questions before the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally
qualify the offence for the purpose of asylum under treaty law and international
law?
(2) In this specific case, was Peru, as the territorial State, bound to give a
guarantee of safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of
1928 (hereinafter called the Havana Convention) when it granted asylum and is
the continued maintenance of asylum a violation of the treaty?
The Courts Decision:

Relevant Findings of the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally


qualify the offence for the purpose of asylum under treaty law and international
law?
1. The court stated that in the normal course of granting diplomatic asylum a
diplomatic

representative

has

the

competence

to

make

a provisional qualification of the offence (for example, as a political offence)


and the territorial State has the right to give consent to this qualification. In the
Torres case, Colombia has asserted, as the State granting asylum, that it is
competent to qualify the nature of the offence in a unilateral and definitive
manner that is binding on Peru. The court had to decide if such a decision was
binding on Peru either because of treaty law (in particular the Havana
Convention of 1928 and the Montevideo Convention of 1933), other principles
of international law or by way of regional or local custom.
2. The court held that there was no expressed or implied right of unilateral and
definitive qualification of the State that grants asylum under the Havana
Convention or relevant principles of international law (p. 12, 13). The
Montevideo Convention of 1933, which accepts the right of unilateral
qualification, and on which Colombia relied to justify its unilateral qualification,
was not ratified by Peru. The Convention, per say, was not binding on Peru and
considering the low numbers of ratifications the provisions of the latter
Convention cannot be said to reflect customary international law (p. 15).
3. Colombia also argued that regional or local customs support the
qualification. The court held that the burden of proof on the existence of an
alleged customary law rests with the party making the allegation:

The Party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other Party
(that) it is in accordance with a (1) constant and uniform usage (2) practiced by
the States in question, and that this usage is (3) the expression of a right
appertaining to the State granting asylum (Columbia) and (4) a duty incumbent
on the territorial State (in this case, Peru). This follows from Article 38 of the
Statute of the Court, which refers to international custom as evidence of a
general practice accepted as law(text in brackets added).
4. The court held that Columbia did not establish the existence of a regional
custom because it failed to prove consistent and uniform usage of the alleged
custom by relevant States. The fluctuations and contradictions in State practice
did not allow for the uniform usage (see also Mendelson, 1948 and see also
Nicaragua case, p. 98, the legal impact of fluctuations of State practice). The
court also reiterated that the fact that a particular State practice was followed
because of political expediency and not because of a belief that the said
practice is binding on the State by way of a legal obligation (opinio juris) is
detrimental to the formation of a customary law (see North Sea Continental
Shelf Cases and Lotus Case for more on opinio juris):

[T]he Colombian Government has referred to a large number of particular


cases in which diplomatic asylum was in fact granted and respected. But it has
not shown that the alleged rule of unilateral and definitive qualification was
invoked or that it was, apart from conventional stipulations, exercised by the
States granting asylum as a right appertaining to them and respected by the
territorial States as a duty incumbent on them and not merely for reasons of
political expediency. The facts brought to the knowledge of the Court disclose
so much uncertainty and contradiction, so much fluctuation and discrepancy in
the exercise of diplomatic asylum and in the official views expressed on various
occasions, there has been so much inconsistency in the rapid succession of

conventions on asylum, ratified by some States and rejected by others, and the
practice has been so much influenced by considerations of political expediency
in the various cases, that it is not possible to discern in all this any constant
and uniform usage, mutually accepted as law, with regard to the alleged rule of
unilateral and definitive qualification of the offence.
5. The court held that even if Colombia could prove that such a regional custom
existed, it would not be binding on Peru, because Peru far from having by its

attitude adhered to it, has, on the contrary, repudiated it by refraining from


ratifying the Montevideo Conventions of 1933 and 1939, which were the first to
include a rule concerning the qualification of the offence [as political in
nature] in matters of diplomatic asylum. (See in this regard, the lesson
on persistent objectors. Similarly in the North Sea Continental Shelf Cases the
court held in any event the . . . rule would appear to be inapplicable as against
Norway in as much as she had always opposed any attempt to apply it to the
Norwegian coast.)
6. The court concluded that Columbia, as the State granting asylum, is not
competent to qualify the offence by a unilateral and definitive decision, binding
on Peru.

(2) In this specific case, was Peru, as the territorial State, bound to give a
guarantee of safe passage?
7. The court held that there was no legal obligation on Peru to grant safe
passage either because of the Havana Convention or customary law. In the case
of the Havana Convention, a plain reading of Article 2 results in an obligation
on the territorial state (Peru) to grant safe passage only after it requests the
asylum granting State (Columbia) to send the person granted asylum outside its
national territory (Peru). In this case the Peruvian government had not asked

that Torre leave Peru. On the contrary, it contested the legality of asylum
granted to him and refused to grant safe conduct.
8. The court looked at the possibility of a customary law emerging from State
practice where diplomatic agents have requested and been granted safe
passage for asylum seekers, before the territorial State could request for his
departure. Once more, the court held that these practices were a result of a
need for expediency and other practice considerations over an existence of a
belief that the act amounts to a legal obligation (see paragraph 4 above).

There exists undoubtedly a practice whereby the diplomatic representative who


grants asylum immediately requests a safe conduct without awaiting a request
from the territorial state for the departure of the refugeebut this practice
does not and cannot mean that the State, to whom such a request for safeconduct has been addressed, is legally bound to accede to it.
(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it
granted asylum and is the continued maintenance of asylum a violation of the
treaty?
9. Article 1 of the Havana Convention states that It is not permissible for States
to grant asylum to persons accused or condemned for common crimes
(such persons) shall be surrendered upon request of the local government.
10. In other words, the person-seeking asylum must not be accused of a
common crime (for example, murder would constitute a common crime, while a
political offence would not).The accusations that are relevant are those made
before the granting of asylum. Torres accusation related to a military rebellion,
which the court concluded was not a common crime and as such the granting
of asylum complied with Article 1 of the Convention.

11. Article 2 (2) of the Havana Convention states that Asylum granted to
political offenders in legations, warships, military camps or military aircraft,
shall be respected to the extent in which allowed, as a right or through
humanitarian toleration, by the usages, the conventions or the laws of the
country in which granted and in accordance with the following provisions: First:
Asylum may not be granted except in urgent cases and for the period of time
strictly indispensable for the person who has sought asylum to ensure in some
other way his safety.
12. An essential pre-requisite for the granting of asylum is the urgency or, in
other words, the presence of an imminent or persistence of a danger for the
person of the refugee. The court held that the facts of the case, including the 3
months that passed between the rebellion and the time when asylum was
sought, did not establish the urgency criteria in this case (pp. 20 -23). The
court held:

In principle, it is inconceivable that the Havana Convention could have


intended the term urgent cases to include the danger of regular prosecution
to which the citizens of any country lay themselves open by attacking the
institutions of that country In principle, asylum cannot be opposed to the
operation of justice.
13. In other words, Torre was accused of a crime but he could not be tried in a
court because Colombia granted him asylum. The court held that protection
from the operation of regular legal proceedings was not justified under
diplomatic asylum.
14. The court held:

In the case of diplomatic asylum the refugee is within the territory of the State.
A decision to grant diplomatic asylum involves a derogation from the

sovereignty of that State. It withdraws the offender from the jurisdiction of the
territorial State and constitutes an intervention in matters which are exclusively
within the competence of that State. Such a derogation from territorial
sovereignty cannot be recognised unless its legal basis is established in each
particular case.
15. As a result, exceptions to this rule are strictly regulated under international
law.

An exception to this rule (asylum should not be granted to those facing regular
prosecutions) can occur only if, in the guise of justice, arbitrary action is
substituted for the rule of law. Such would be the case if the administration of
justice were corrupted by measures clearly prompted by political aims. Asylum
protects the political offender against any measures of a manifestly extra-legal
character which a Government might take or attempt to take against its political
opponents On the other hand, the safety which arises out of asylum cannot
be construed as a protection against the regular application of the laws and
against the jurisdiction of legally constituted tribunals. Protection thus
understood would authorize the diplomatic agent to obstruct the application of
the laws of the country whereas it is his duty to respect them Such a
conception, moreover, would come into conflict with one of the most firmly
established traditions of Latin-America, namely, non-intervention [for example,
by Colombia into the internal affairs of another State like Peru].
16. Asylum may be granted on humanitarian grounds to protect political
prisoners against the violent and disorderly action of irresponsible sections of
the population. (for example during a mob attack where the territorial State is
unable to protect the offender). Torre was not in such a situation at the time
when he sought refuge in the Colombian Embassy at Lima.

17. The court concluded that the grant of asylum and reasons for its
prolongation were not in conformity with Article 2(2) of the Havana Convention
(p. 25).

The grant of asylum is not an instantaneous act which terminates with the
admission, at a given moment of a refugee to an embassy or a legation. Any
grant of asylum results in, and in consequence, logically implies, a state of
protection, the asylum is granted as long as the continued presence of the
refugee in the embassy prolongs this protection.
NB: The court also discussed the difference between extradition and granting of
asylum you can read more on this in pp. 12 13 of the judgment. The
discussions on the admissibility of the counter claim of Peru are set out in pp.
18 19.

Asylum, Colombia v Peru, Merits, Judgment, [1950] ICJ Rep


266, ICGJ 194 (ICJ 1950), 20th November 1950, International
Court of Justice [ICJ]
Date:
20 November 1950
Content type:
International Court Decisions
Jurisdiction:
International Court of Justice [ICJ]
Citation(s):
[1950] ICJ Rep 266 (Official Citation)
ICGJ 194 (ICJ 1950) (OUP reference)
Product:
Oxford Reports on International Law [ORIL]

Module:
International Courts of General Jurisdiction [ICGJ]

Whether a state was entitled under international and relevant treaty law to make a unilateral
and binding determination as to whether an individual qualified for asylum, which could be
enforced against the state from which such individual seeks protection.
Whether a state was required to allow safe passage out of its territory to an individual that
had been granted diplomatic asylum in another state.
Whether Colombia acted in violation of the Havana Convention on Asylum by granting
asylum to Vctor Ral Haya de la Torre subsequent to his involvement in a military rebellion
in Peru.

Case Digest!] Mejoff vs. Director of Prisons

Leave a comment
This case may be assigned in Constitutional Law subjects.

FACTS:

Petitioner: Boris Mejoff, a Russian national brought to the Philippines as a secret operative by the Japanese
during the Japanese Occupation

Yet another petition for habeas corpus (i.e. this was not the first case filed by Mejoff)

First petition denied by SC on July 30, 1949

[Now that we're done with that, let's go back to the story...]

Upon the liberation of the Philippines, Mejoff was arrested as a spy by the US Army Counter-Intelligence
Corps

The Peoples Court ordered Mejoffs release, but the Deportation Board then found out that he had no
travel documents and referred the matter to the immigration authorities

The Immigration Board declared Mejoff an illegal alien, having illegally entered the Philippines in 1944,
without inspection or admission by immigration officials, and ordered that he be deported to Russia come
the first available transport

Mejoff was then under custody, having been arrested on March 18, 1948

Repeated failures to ship Mejoff to Russia

Mejoff was moved to Bilibid where he has been confined for give or take two years; no ship or country
would take him, says the decision

ISSUE:

WON Mejoff should be released from prison pending his deportation

RULING:

The protection against deprivation of liberty without due process of law, and except for crimes committed
against the laws of the land, is not limited to Philippine citizens but extends to all residents, except enemy
aliens, regardless of nationality

Sec. 3, Art. II of the 1935 Constitution adopts the generally accepted principles of international law as part
of the law of the Nation, which means that the incorporation doctrine holds sway here

The Universal Declaration Of Human Rights proclaims the right to life and liberty and all other
fundamental rights as applied to all human beings, stating that all human beings are born free and
equal in degree and rights (Art. 1); that everyone is entitled to all the rights and freedom set forth in this
Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other
opinion, nationality or social origin, property, birth, or other status (Art. 2); that every one has the right to
an effective remedy by the competent national tribunals for acts violating the fundamental rights granted
him by the Constitution or by law (Art. 8); that no one shall be subjected to arbitrary arrest, detention or
exile (Art. 9 ), etc.

The writ of habeas corpus will issue commanding the respondents to release the petitioner from custody
upon these terms: that the petitioner shall be placed under reasonable surveillance c/o the immigration
authorities or their agents in such form and manner as may be deemed adequate to insure that he keep
peace and be available when the Government is ready to deport him

Mejoff vs. Director of Prisons


Facts:
The 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
the Philippines. Upon liberation, he was arrested as a Japanese
spy by US Army Counter Intelligence Corps. The People's
Court ordered his release but the Deportation Board taking his

case found that having no travel documents, Mejoff was an


illegal alien in this country and must referred the matter to the
immigration authorities. After corresponding investigation, the
Immigration Board of Commissioners declared that Mejoff
entered the Philippine illegally and therefore must be deported
on the first available transportation to Russia. The petitioner
was then under custody. After repeated failures to ship this
deportee abroad, the authorities moved him to Bilibid Prison at
Muntinlupa where he has been confined up to the present time.
Two years had elapsed but the Government has not found
ways and means of removing the petitioner out of the country
although it should be said in fairness to the deportation
authorities that it was through no fault of theirs that no ship or
country would take the petitioner.
Issue:
WON Mejoff should be released from prison pending his
deportation.
Held:
The Philippines adopts the Universal Declaration of
Human Rights since it is a generally accepted principle of
international law. It should be applied also to illegal aliens like
Mejoff so that it would be a violation of the said international

law to detain him for an unreasonable length of time since no


vessel from his country is willing to take him. Considering that
the 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 the presumption,
assurances were made during the oral argument that the
Government is really trying to expedite the expulsion of
Mejoff. The petitioner can be released if there is a record
shown that the deportee is being imprisoned under the pretense
of awaiting a chance for deportation or unless the Government
admit that it can not deport him or he is being held for too long
a period our courts will not interfere. Article 2 of the
Philippine Constitution states that, "The Philippines renounces
war as instrument of national policy, adopts the generally
accepted principles of international law as part of the law of
the land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations. The
protection against deprivation of liberty without due process of
law, and except for crimes committed against the laws of the
land, is not limited to Philippine citizens but extends to all
residents, except enemy aliens, regardless of nationality.
ejoff vs. Director of Prisons

Mejoff vs. Director of Prisons [90 Phil. 70, 1951]

Facts:

Petitioner Mejoff is a Russian and a secret operative of the Japanese forces brought into the country
during the formers occupation here. He was later on arrested as a Japanese spy by the American
forces and was handed to the Commonwealth Government for disposition. He was then issued an order
of release by the Peoples Court. However, he was proven by the deportation board to have entered
the country illegally sometime in 1944. He was then arrested and again taken into custody and was
transferred to the Cebu Provincial Jail while waiting to be deported out of the country. More than 2
years have elapsed still the Government has not found way and means of removing the petitioner out
of the country, and none are in sight, although it should be said in justice to the deportation
authorities, it was through no fault of theirs that no ship or country would take the petitioner even his
native country. Hence, an action for the petition of the issuance of writ of habeas corpus was filed
before the Supreme Court.

Issue:

Will the action prosper?

Held:

It was held by the Supreme Court that the prolonged detention of the petitioner is unwarranted by
international law and the Philippine Constitution. The Philippines, by its Constitution, expressly adopts
generally accepted principles of international law as part of the law of the Nation. The Philippines,
being a member of the United Nations, was subject to the latters resolution on the "Universal
Declaration of Human Rights" wherein it provides equality of all human beings in degree and rights
regardless of race, color, sex, language, religion, or any other opinion and that everyone has the right
to an effective remedy by the competent national tribunals for acts violating the fundamental rights
granted him by the Constitution or by law. It further provides that no one shall be subjected to
arbitrary arrest, detention or exile. The writ was then issued under the terms that the petitioner shall
be placed under the surveillance of the immigration authorities or their agents in such form and
manner as may be deemed adequate to insure that he keep peace and be available when the

Government is ready to deport him and that he shall also put up a bond of P5,000 with sufficient surety
or sureties.

G.R. No. L10986 March 31,


1917COMPAGNI
E DE
COMMERCE ET
DE
NAVIGATION
D'EXTREME

ORIENT,
plaintiffappellant,vs.THE
HAMBURG
AMERIKA
PACKETFACHT
ACTIEN
GESELLSCHAF

T, defendantappellant.FACTS:
1. COMPAGNIE
DE COMMERCE
ET
DE NAVIGATIO
N D'EXTREME
ORIENT
(Compagnie) is

acorporation duly
organized and
existing under and
by virtue of
the laws of France,
with its principal
office inParis and
a branch office in
Saigon,

Vietnam. THE
HAMBURG
AMERIKA
PACKETFACHT
ACTIENGESELL
SCHAFT(Hambur
g) is a corporation
organized under
the laws of

Germany with its


principal office
inHamburg and
represented in
Manila by Behn,
Meyer &
Company
(Limited), a
corporation.2. HA

MBURG owned a
steamship named
SAMBIA, which
proceeded to the
port of Saigon and
on board
wasthe cargo
belonging to
COMPAGNIE. Th

ere were rumors


of impending
war between
Germany and
Franceand other
nations of Europe.
The master of the
steamship was told
to take refuge at a

neutral port
(becauseSaigon
was a French
port).3. COMPAG
NIE asked
for compulsory
detention of its
vessel to prevent
its property

from leaving
Saigon.However,
the Governor of
Saigon refused
to issue an order
because he had not
been officially
notified of
thedeclaration of

the war.4. The


steamship sailed
from Saigon, and
was bound for
Manila, because it
was issued a bill of
health by theUS
consul in Saigon.
The steamship

stayed
continuously in
Manila and where
it contends it will
be compelledto
stay until the war
ceases. No attempt
was made on the
part of

the defendants to
transfer and
deliver the cargoto
the destinations as
stipulated in the
charter
party.5. BEHN,
MEYER and
COMPANY

(agent
of HAMBURG
in Manila) offered
to purchase the
cargo fromCOMP
AGNIE, but the
latter never
received the cable
messages so they

never
answered. When a
survey wasdone on
the ship, it was
found that the
cargo was infested
with beetles, so
BEHN asked for
court authority

tosell the cargo


and the balance to
be dumped at sea.
The proceeds of
the sale were
deposited in the
court, waitingfor
orders as to what
to do

with it.6. BEHN


wrote
COMPAGNIE aga
in informing the
latter of the
disposition which
it made upon the
cargo.COMPAGN
IE answered that it

was still
waiting for
orders as to
what to
do. COMPAGNIE
wanted all
the proceeds of the
sale to be given to

them
(damages, for the
defendants failure
to deliver the
cargo to the
destinations
Dunkirk and
Hamburg), while
defendants

contended that
they have a lien on
the proceeds of
thesale (amount
due to them
because of the
upkeep and
maintenance of the
ship crew and for

commissions for
thesale of the
cargo).6. The trial
court ruled in
favor of the
plaintiffs. On
appeal,
the defendants
made the

following
assignments
onappeal (that the
court had
no jurisdiction,
that the fear of
capture was not
force majeure, that
the court erred

inconcluding that
defendant is liable
for damages for
non-delivery of
cargo, and the
value of the award
ofdamages). On
appeal, the
plaintiffs also

contended that the


court erred in not
giving the full
value of damages
ISSUE: WONthe
master of the
steamship was
justified in taking
refuge in Manila

(therefore being
the cause ofthe
non-delivery of the
cargo belonging to
the
plaintiffs)COMPA
GNIE contends
that the master
should have in

mind the accepted


principles of
public
internationallaw,
the established
practice of nations,
and the express
terms of the Sixth
Hague Convention

(1907). Themaster
should have
confidently relied
upon the French
authorities at
Saigon to permit
him to sail to his
port ofdestination
under a laissez-

passer or safeconduct, which


would have
secured both the
vessel and her
cargofrom all
danger of capture
by any of the
belligerents. The

SHIPOWNER
contends that
the master was
justifiedin
declining to leave
his vessel in
a situation in
which it would
be exposed to

danger of seizure
by the
Frenchauthorities,
should they refuse
to be bound by the
alleged rule of
international
law.HELD:A
shipmaster must

be allowed a
reasonable time in
which to decide
what course he
will adopt as
to thedisposition
of his cargo, after
entering a port of
refuge; and though

he must act
promptly
thereafter,
when thecargo is a
perishable one,
neither he nor the
shipowner is
responsible for
loss or

damage suffered
by the cargoas a
result of its
detention
aboard the vessel
during such
time as may
reasonably
necessary to come

to adecision in this
regard.Under the
circumstances set
out in the opinion,
the master of the
Sambia proceeded
with all reasonable
dispatchand did all
that could

be required of a
prudent man to
protect the
interests of the
owner of the
cargo aboard
isvessel; so that
any losses which
resulted from the

detention of the
cargo aboard the
Sambia must be
attributed to
the act of the
Enemy of the
King which
compelled the
Sambia to

flee to a port of
refuge, and made
necessarythe
retention of the
cargo aboard
the vessel at
anchor under
a tropical sun and
without proper

ventilation until
itcould be
ascertained that
the interests of the
absent owner
would be
consulted by the
sale of this
perishablecargo in

the local market.In


fleeing from the
port of Saigon, and
taking refuge in
Manila Bay
the master of the
Sambia was not
acting forthe
common safety of

the vessel and her


cargo. The French
cargo was
absolutely
secure from
danger of
seizureor
confiscation so
long as it remained

in the port in
Saigon, and
the flight of the
vessel was a
measure
of precaution
adopted solely and
exclusively for the
preservation of the

vessel from the


danger of seizure
orcapture.Dispositi
ve: So much of

the judgment
as provides for
the delivery to

the plaintiff of
the net
proceeds of
the saleof the
cargo
(P128,977.71)

affirmed; but
so much
thereof as
allowed
damages for a
breach of the

charter
party(P60,841.
32) reversed
ORTH SEA CONTINENTAL SHELF CASES
Judgment of 20 February 1969
The Court delivered judgment, by 11 votes to 6, in the North Sea Continental Shelf cases.
The dispute, which was submitted to the Court on 20 February 1967, related to the delimitation of the continental shelf between the
Federal Republic of Germany and Denmark on the one hand, and between the Federal Republic of Germany and the Netherlands on the
other. The Parties asked the Court to state the principles and rules of international law applicable, and undertook thereafter to carry out
the delimitations on that basis.
The Court rejected the contention of Denmark and the Netherlands to the effect that the delimitations in question had to be carried out in
accordance with the principle of equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf, holding:
- that the Federal Republic, which had not ratified the Convention, was not legally bound by the provisions of Article 6;
- that the equidistance principle was not a necessary consequence of the general concept of continental shelf rights, and was not a rule of
customary international law.
The Court also rejected the contentions of the Federal Republic in so far as these sought acceptance of the principle of an apportionment
of the continental shelf into just and equitable shares. It held that each Party had an original right to those areas of the continental shelf
which constituted the natural prolongation of its land territory into and under the sea. It was not a question of apportioning or sharing out
those areas, but of delimiting them.
The Court found that the boundary lines in question were to be drawn by agreement between the Parties and in accordance with equitable
principles, and it indicated certain factors to be taken into consideration for that purpose. It was now for the Parties to negotiate on the
basis of such principles, as they have agreed to do.
The proceedings, relating to the delimitation as between the Parties of the areas of the North Sea continental shelf appertaining to each of
them, were instituted on 20 February 1967 by the communication to the Registry of the Court of two Special Agreements, between
Denmark and the Federal Republic and the Federal Republic and the Netherlands respectively. By an Order of 26 April 1968, the Court
joined the proceedings in the two cases.
The Court decided the two cases in a single Judgment, which it adopted by eleven votes to six. Amongst the Members of the Court
concurring in the Judgment, Judge Sir Muhammad Zafrulla Khan appended a declaration; and President Bustamante y Rivero and Judges
Jessup, Padilla Nervo and Ammoun appended separate opinions. In the case of the non-concurring Judges, a declaration of his dissent

was appended by Judge Bengzon; and Vice-President Koretsky, together with Judges Tanaka, Morelli and Lachs, and Judge ad
hoc Sorensen, appended dissenting opinions.
In its Judgment, the Court examined in the context of the delimitations concerned the problems relating to the legal rgime of the
continental shelf raised by the contentions of the Parties.
The Facts and the Contentions of the Parties (paras. 1-17 of the Judgment)
The two Special Agreements had asked the Court to declare the principles and rules of international law applicable to the delimitation as
between the Parties of the areas of the North Sea continental shelf appertaining to each of them beyond the partial boundaries in the
immediate vicinity of the coast already determined between the Federal Republic and the Netherlands by an agreement of 1 December
1964 and between the Federal Republic and Denmark by an agreement of 9 June 1965.The Court was not asked actually to delimit the
further boundaries involved, the Parties undertaking in their respective Special Agreements to effect such delimitation by agreement in
pursuance of the Court's decision.
The waters of the North Sea were shallow, the whole seabed, except for the Norwegian Trough, consisting of continental shelf at a depth
of less than 200 metres. Most of it had already been delimited between the coastal States concerned. The Federal Republic and Denmark
and the Netherlands, respectively, had, however, been unable to agree on the prolongation of the partial boundaries referred to above,
mainly because Denmark and the Netherlands had wished this prolongation to be effected on the basis of the equidistance principle,
whereas the Federal Republic had considered that it would unduly curtail what the Federal Republic believed should be its proper share
of continental shelf area, on the basis of proportionality to the length of its North Sea coastline. Neither of the boundaries in question
would by itself produce this effect, but only both of them together - an element regarded by Denmark and the Netherlands as irrelevant to
what they viewed as being two separate delimitations, to be carried out without reference to the other.
A boundary based on the equidistance principle, i.e., an "equidistance line", left to each of the Parties concerned all those portions of the
continental shelf that were nearer to a point on its own coast than they were to any point on the coast of the other Party. In the case of a
concave or recessing coast such as that of the Federal Republic on the North Sea, the effect of the equidistance method was to pull the
line of the boundary inwards, in the direction of the concavity. Consequently, where two equidistance lines were drawn, they would, if
the curvature were pronounced, inevitably meet at a relatively short distance from the coast, thus "cutting off" the coastal State from the
area of the continental shelf outside. In contrast, the effect of convex or outwardly curving coasts, such as were, to a moderate extent,
those of Denmark and the Netherlands, was to cause the equidistance lines to leave the coasts on divergent courses, thus having a
widening tendency on the area of continental shelf off that coast.
It had been contended on behalf of Denmark and the Netherlands that the whole matter was governed by a mandatory rule of law which,
reflecting the language of Article 6 of the Geneva Convention on the Continental Shelf of 29 April 1958, was designated by them as the
"equidistance-special circumstances" rule. That rule was to the effect that in the absence of agreement by the parties to employ another
method, all continental shelf boundaries had to be drawn by means of an equidistance line unless "special circumstances" were
recognized to exist. According to Denmark and the Netherlands, the configuration of the German North Sea coast did not of itself
constitute, for either of the two boundary lines concerned, a special circumstance.
The Federal Republic, for its part, had contended that the correct rule, at any rate in such circumstances as those of the North Sea, was
one according to which each of the States concerned should have a "just and equitable share" of the available continental shelf, in
proportion to the length of its sea-frontage. It had also contended that in a sea shaped as is the North Sea, each of the States concerned
was entitled to a continental shelf area extending up to the central point of that sea, or at least extending to its median line. Alternatively,
the Federal Republic had claimed that if the equidistance method were held to bc applicable, the configuration of the German North Sea
coast constituted a special circumstance such as to justify a departure from that method of delimitation in this particular case.
The Apportionment Theory Rejected (paras. 18-20 of the Judgment)
The Court felt unable to accept, in the particular form it had taken, the first contention put forward on behalf of the Federal Republic. Its
task was to delimit, not to apportion the areas concerned. The process of delimitation involved establishing the boundaries of an area
already, in principle, appertaining to the coastal State and not the determination de novo of such an area. The doctrine of the just and
equitable share was wholly at variance with the most fundamental of all the rules of law relating to the continental shelf, namely, that the
rights of the coastal State in respect of the area of continental shelf constituting a natural prolongation of its land territory under the sea
existed ipso facto and ab initio, by virtue of its sovereignty over the land. That right was inherent. In order to exercise it, no special legal
acts had to be performed. It followed that the notion of apportioning an as yet undelimited area considered as a whole (which underlay
the doctrine of the just and equitable share) was inconsistent with the basic concept of continental shelf entitlement.
Non-Applicability of Article 6 of the 1958 Continental Shelf Convention (paras. 21-36 of the Judgment)
The Court then turned to the question whether in delimiting those areas the Federal Republic was under a legal obligation to accept the
application of the equidistance principle. While it was probably true that no other method of delimitation had the same combination of
practical convenience and certainty of application, those factors did not suffice of themselves to convert what was a method into a rule of
law. Such a method would have to draw its legal force from other factors than the existence of those advantages.
The first question to be considered was whether the 1958 Geneva Convention on the Continental Shelf was binding for all the Parties in
the case. Under the formal provisions of the Convention, it was in force for any individual State that had signed it within the time-limit
provided, only if that State had also subsequently ratified it. Denmark and the Netherlands had both signed and ratified the Convention
and were parties to it, but the Federal Republic, although one of the signatories of the Convention, had never ratified it, and was
consequently not a party. It was admitted on behalf of Denmark and the Netherlands that in the circumstances the Convention could not,
as such, be binding on the Federal Republic. But it was contended that the rgime of Article 6 of the Convention had become binding
on the Federal Republic, because, by conduct, by public statements and proclamations, and in other ways, the Republic had assumed the
obligations of the Convention.
It was clear that only a very definite, very consistent course of conduct on the part of a State in the situation of the Federal Republic
could justify upholding those contentions. When a number of States drew up a convention specifically providing for a particular method
by which the intention to become bound by the rgime of the convention was to be manifested, it was not lightly to be presumed that a

State which had not carried out those formalities had nevertheless somehow become bound in another way. Furthermore, had the Federal
Republic ratified the Geneva Convention, it could have entered a reservation to Article 6, by reason of the faculty to do so conferred by
Article 12 of the Convention.
Only the existence of a situation of estoppel could lend substance to the contention of Denmark and the Netherlands - i.e., if the Federal
Republic were now precluded from denying the applicability of the conventional rgime, by reason of past conduct, declarations, etc.,
which not only clearly and consistently evinced acceptance of that rgime, but also had caused Denmark or the Netherlands, in reliance
on such conduct, detrimentally to change position or suffer some prejudice. Of this there was no evidence. Accordingly, Article 6 of the
Geneva Convention was not, as such, applicable to the delimitations involved in the present proceedings.
The Equidistance Principle Not Inherent in the Basic Doctrine of the Continental Shelf (paras. 37-59 of the Judgment)
It had been maintained by Denmark and the Netherlands that the Federal Republic was in any event, and quite apart from the Geneva
Convention, bound to accept delimitation on an equidistance basis, since the use of that method was a rule of general or customary
international law, automatically binding on the Federal Republic.
One argument advanced by them in support of this contention, which might be termed the a priori argument, started from the position
that the rights of the coastal State to its continental shelf areas were based on its sovereignty over the land domain, of which the shelf
area was the natural prolongation under the sea. From this notion of appurtenance was derived the view, which the Court accepted, that
the coastal State's rights existed ipso facto and ab initio. Denmark and the Netherlands claimed that the test of appurtenance must be
"proximity": all those parts of the shelf being considered as appurtenant to a particular coastal State which were closer to it than they
were to any point on the coast of another State. Hence, delimitation had to be effected by a method which would leave to each one of the
States concerned all those areas that were nearest to its own coast. As only an equidistance line would do this, only such a line could be
valid, it was contended.
This view had much force; the greater part of a State's continental shelf areas would normally in fact be nearer to its coasts than to any
other. But the real issue was whether it followed that every part of the area concerned must be placed in that way. The Court did not
consider this to follow from the notion of proximity, which was a somewhat fluid one. More fundamental was the concept of the
continental shelf as being the natural prolongation of the land domain. Even if proximity might afford one of the tests to be applied, and
an important one in the right conditions, it might not necessarily be the only, nor in all circumstances the most appropriate, one.
Submarine areas did not appertain to the coastal State merely because they were near it, nor did their appurtenance depend on any
certainty of delimitation as to their boundaries. What conferred the ipso jure title was the fact that the submarine areas concerned might
be deemed to be actually part of its territory in the sense that they were a prolongation of its land territory under the sea. Equidistance
clearly could not be identified with the notion of natural prolongation, since the use of the equidistance method would frequently cause
areas which were the natural prolongation of the territory of one State to be attributed to another. Hence, the notion of equidistance was
not an inescapable a priori accompaniment of basic continental shelf doctrine.
A review of the genesis of the equidistance method of delimitation confirmed the foregoing conclusion. The "Truman Proclamation"
issued by the Government of the United States on 28 September 1945 could be regarded as a starting point of the positive law on the
subject, and the chief doctrine it enunciated, that the coastal State had an original, natural and exclusive right to the continental shelf off
its shores, had come to prevail over all others and was now reflected in the1958 Geneva Convention. With regard to the delimitation of
boundaries between the continental shelves of adjacent States, the Truman Proclamation had stated that such boundaries "shall be
determined by the United States and the State concerned in accordance with equitable principles". These two concepts, of delimitation by
mutual agreement and delimitation in accordance with equitable principles, had underlain all the subsequent history of the subject. It had
been largely on the recommendation of a committee of experts that the principle of equidistance for the delimitation of continental shelf
boundaries had been accepted by the United Nations International Law Commission in the text it had laid before the Geneva Conference
of 1958 on the Law of the Sea which had adopted the Continental Shelf Convention. It could legitimately be assumed that the experts
had been actuated by considerations not of legal theory but of practical convenience and cartography. Moreover, the article adopted by
the Commission had given priority to delimitation by agreement and had contained an exception in favour of "special circumstances".
The Court consequently considered that Denmark and the Netherlands inverted the true order of things and that, far from an equidistance
rule having been generated by an antecedent principle of proximity inherent in the whole concept of continental shelf appurtenance, the
latter was rather a rationalization of the former
The Equidistance Principle Not a Rule of Customary International Law (paras. 60-82 of the Judgment)
The question remained whether through positive law processes the equidistance principle must now be regarded as a rule of customary
international law.
Rejecting the contentions of Denmark and the Netherlands, the Court considered that the principle of equidistance, as it figured in Article
6 of the Geneva Convention, had not been proposed by the International Law Commission as an emerging rule of customary
international law. This Article could not be said to have reflected or crystallized such a rule. This was confirmed by the fact that any
State might make reservations in respect of Article 6, unlike Articles 1, 2 and 3, on signing, ratifying or acceding to the Convention.
While certain other provisions of the Convention, although relating to matters that lay within the field of received customary law, were
also not excluded from the faculty of reservation, they all related to rules of general maritime law very considerably antedating the
Convention which were only incidental to continental shelf rights as such, and had been mentioned in the Convention simply to ensure
that they were not prejudiced by the exercise of continental shelf rights. Article 6, however, related directly to continental shelf rights as
such, and since it was not excluded from the faculty of reservation, it was a legitimate inference that it was not considered to reflect
emergent customary law.
It had been argued on behalf of Denmark and the Netherlands that even if at the date of the Geneva Convention no rule of customary
international law existed in favour of the equidistance principle, such a rule had nevertheless come into being since the Convention,
partly because of its own impact, and partly on the basis of subsequent State practice. In order for this process to occur it was necessary
that Article 6 of the Convention should, at all events potentially, be of a norm-creating character. Article 6 was so framed, however, as to
put the obligation to make use of the equidistance method after a primary obligation to effect delimitation by agreement. Furthermore,
the part played by the notion of special circumstances in relation to the principle of equidistance, the controversies as to the exact

meaning and scope of that notion, and the faculty of making reservations to Article 6 must all raise doubts as to the potentially normcreating character of that Article.
Furthermore, while a very widespread and representative participation in a convention might show that a conventional rule had become a
general rule of international law, in the present case the number of ratifications and accessions so far was hardly sufficient. As regards
the time element, although the passage of only a short period of time was not necessarily a bar to the formation of a new rule of
customary international law on the basis of what was originally a purely conventional rule, it was indispensable that State practice during
that period, including that of States whose interests were specially affected, should have been both extensive and virtually uniform in the
sense of the provision invoked and should have occurred in such a way as to show a general recognition that a rule of law was involved.
Some 15 cases had been cited in which the States concerned had agreed to draw or had drawn the boundaries concerned according to the
principle of equidistance, but there was no evidence that they had so acted because they had felt legally compelled to draw them in that
way by reason of a rule of customary law. The cases cited were inconclusive and insufficient evidence of a settled practice.
The Court consequently concluded that the Geneva Convention was not in its origins or inception declaratory of a mandatory rule of
customary international law enjoining the use of the equidistance principle, its subsequent effect had not been constitutive of such a rule,
and State practice up to date had equally been insufficient for the purpose.
The Principles and Rules of Law Applicable (paras. 83-101 of the Judgment)
The legal situation was that the Parties were under no obligation to apply the equidistance principle either under the 1958 Convention or
as a rule of general or customary international law. It consequently became unnecessary for the Court to consider whether or not the
configuration of the German North Sea coast constituted a "special circumstance". It remained for the Court, however, to indicate to the
Parties the principles and rules of law in the light of which delimitation was to be effected.
The basic principles in the matter of delimitation, deriving from the Truman Proclamation, were that it must be the object of agreement
between the States concerned and that such agreement must be arrived at in accordance with equitable principles. The Parties were under
an obligation to enter into negotiations with a view to arriving at an agreement and not merely to go through a formal process of
negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they
were so to conduct themselves that the negotiations were meaningful, which would not be the case when one of them insisted upon its
own position without contemplating any modification of it. This obligation was merely a special application of a principle underlying all
international relations, which was moreover recognized in Article 33 of the Charter of the United Nations as one of the methods for the
peaceful settlement of international disputes.
The Parties were under an obligation to act in such a way that in the particular case, and taking all the circumstances into account,
equitable principles were applied. There was no question of the Court's decision being ex aequo et bono. It was precisely a rule of law
that called for the application of equitable principles, and in such cases as the present ones the equidistance method could unquestionably
lead to inequity. Other methods existed and might be employed, alone or in combination, according to the areas involved. Although the
Parties intended themselves to apply the principles and rules laid down by the Court some indication was called for of the possible ways
in which they might apply them.
For all the foregoing reasons, the Court found in each case that the use of the equidistance method of delimitation was not obligatory as
between the Parties; that no other single method of delimitation was in all circumstances obligatory; that delimitation was to be effected
by agreement in accordance with equitable principles and taking account of all relevant circumstances, in such a way as to leave as much
as possible to each Party all those parts of the continental shelf that constituted a natural prolongation of its land territory, without
encroachment on the natural prolongation of the land territory of the other; and that, if such delimitation produced overlapping areas,
they were to be divided between the Parties in agreed proportions, or, failing agreement, equally, unless they decided on a rgime of
joint jurisdiction, user, or exploitation.
In the course of negotiations, the factors to be taken into account were to include: the general configuration of the coasts of the Parties, as
well as the presence of any special or unusual features; so far as known or readily ascertainable, the physical and geological structure and
natural resources of the continental shelf areas involved, the element of a reasonable degree of proportionality between the extent of the
continental shelf areas appertaining to each State and the length of its coast measured in the general direction of the coastline, taking into
account the effects, actual or prospective, of any other continental shelf delimitations in the same region.

NGLO NORWEGIAN FISHERIES CASE


(SUMMARY ON CUSTOMARY
INTERNATIONAL LAW)
Case: Anglo Norwegian Fisheries Case (UK vs Norway)

Year of Decision: 1951. Court: ICJ.

The Court was asked to decide, inter-alia, the validity, under international law,
of the methods used to delimit Norways territorial sea/ fisheries zone. We
would not discuss the technical aspects of the judgment. The judgment
contained declarations on customary international law. However, the value of
the jurisprudence was diminished because these declarations lacked in-depth
discussion.

Background to the case


The United Kingdom requested the court to decide if Norway had used a legally
acceptable method in drawing the baseline from which it measured its
territorial sea. The United Kingdom argued that customary international law did
not allow the length of a baseline drawn across abay to be longer than ten
miles. Norway argued that its delimitation method was consistent with general
principles of international law.

Formation of customary law


The court consistently referred to positive (1) state practice and (2) lack of
objections of other states on that practice as a confirmation of an existing rule
of customary international law (see p. 17 and 18). There was no mention
of opinio juris in this early judgment.
In the following passage, the court considered that expressed state dissent
regarding a particular practice was detrimental to the existence of an alleged
general rule. It did not elaborate whether these states adopted a contrary
practice because it was claiming an exception to the rule (see the Nicaragua

jurisprudence) or because it believed that the said rule did not possess the
character of customary law.
In these circumstances the Court deems it necessary to point out that although
the ten-mile rule has been adopted by certain States both in their national law
and in their treaties and conventions, and although certain arbitral decisions
have applied it as between these States, other States have adopted a different
limit. Consequently, the ten-mile rule has not acquired the authority of a
general rule of international law.

Persistent objector rule


The court in its judgment held that even if a customary law rule existed on the
ten-mile rule,
the ten-mile rule would appear to be inapplicable as against Norway
inasmuch as she has always opposed any attempt to apply it to the Norwegian
coast.
In this case, the court appears to support the idea that an existing customary
law rule would not apply to a state if it objected to any outside attempts to
apply the rule to itself, at the initial stages and in a consistent manner, and if
other states did not object to her resistance. In this manner, the Anglo
Norwegian fisheries case joined the asylum case (Peru vs Colombia) in
articulating what we now call the persistent objector rule.

Initial objection

In the present case, the court pointed out that the Norwegian Minister of
Foreign Affairs, in 1870, stated that, in spite of the adoption in some treaties

of the quite arbitrary distance of 10 sea miles, this distance would not appear
to me to have acquired the force of international law. Still less would it appear
to have any foundation in reality
The court held that Language of this kind can only be construed as the

considered expression of a legal conception regarded by the Norwegian


Government as compatible with international law.The court held that Norway
had refused to accept the rule as regards to it by 1870.

Sustained objection

The court also went on to hold that Norway followed the principles of
delimitation that it considers a part of its system in a consistent and
uninterrupted manner from 1869 until the time of the dispute. In establishing
consistent practice, the court held that too much importance need not be

attached to the few uncertainties or contradictions, real or apparent, which the


United Kingdom Government claims to have discovered in Norwegian practice.

No objection

After the court held that the 10-mile rule did not form a part of the general law
and, in any event, could not bind Norway because of its objections, the court
inquired whether the Norwegian system of delimitation, itself, was contrary to
international law. To do so, the court referred to state practice once more.

The general toleration of foreign States with regard to the Norwegian practice
is an unchallenged fact. For a period of more than sixty years the United
Kingdom Government itself in no way contested it The Court notes that in
respect of a situation which could only be strengthened with the passage of
time, the United Kingdom Government refrained from formulating
reservations.

Contrary practice

In this case, Norway adopted a contrary practice a practice that was the
subject of litigation.
However, interestingly, Norway was clear that it was not claiming an exception
to the rule (i.e. that its practice was not contrary to international law) but rather
it claimed that its practice was in conformity with international law (see page
21).
In its (Norways) view, these rules of international law take into account the
diversity of facts and, therefore, concede that the drawing of base-lines must
be adapted to the special conditions obtaining in different regions. In its view,
the system of delimitation applied in 1935, a system characterized by the use
of straight lines, does not therefore infringe the general law; it is an adaptation
rendered necessary by local conditions.

Conclusion

The court held that the fact that this consistent and sufficiently long practice
took place without any objection to the practice from other states (until the

time of dispute) indicated that states did not consider the Norwegian system to
be contrary to international law.
The notoriety of the facts, the general toleration of the international
community, Great Britains position in the North Sea, her own interest in the
question, and her prolonged abstention would in any case warrant Norways
enforcement of her system against the United Kingdom. The Court is thus led
to conclude that the method of straight lines, established in the Norwegian
system, was imposed by the peculiar geography of the Norwegian coast; that
even before the dispute arose, this method had been consolidated by a
consistent and sufficiently long practice, in the face of which the attitude of
governments bears witness to the fact that they did not consider it to be
contrary to international law.

Relationship between international and national law


The court alluded to the relationship between national and international law in
delimitation of maritime boundaries. In delimitation cases, states must be

allowed the latitude necessary in order to be able to adapt its delimitation to


practical needs and local requirements The court would also
consider certain economic interests peculiar to a region, the reality and

importance of which are clearly evidenced by a long usage. However, while the
act of delimitation can be undertaken by the State, its legal validity depends on
international law.
The delimitation of sea areas has always an international aspect; it cannot be
dependent merely upon the will of the coastal State as expressed in its
municipal law. Although it is true that the act of delimitation is necessarily a
unilateral act, because only the coastal State is competent to undertake it, the

validity of the delimitation with regard to other States depends upon


international law. (p. 20)

Further reading:
T. Stein, The Approach of the Different Drummer: The Principle of the
Persistent Objector in International Law, 26 Harvard International Law Journal,
1985, p. 457,
J. Charney, The Persistent Objector Rule and the Development of Customary
International Law,56 BYIL, 1985, p. 1.
In fact, the two international court of justice cases which appear to support the
persistent objector rule both arose in circumstances where the new rule itself
was in substantial doubt. Thus, it was significantly easier for the objector to
maintain its status. No case is cited for a circumstance in which the objector
effectively maintained its status after the rule became well accepted in
international law. In fact, it is unlikely that such a status can be maintained din
light of the realities of the international legal system. This is certainly the plight
that befell the US, The UK and Japan in the law of the sea. Their objections to
expanded coastal state jurisdiction were ultimately to no avail, and they have
been forced to accede to 12-mile territorial seas and the 200-mile exclusive
economic zone.
Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, see
also pp. 236 239.
The Fisheries Case, decided a year later, pitted the United Kingdom against
Norway. At issue was whether Norway had used a legally acceptable method in
drawing the baseline from which it measured its territorial sea. The United

Kingdom argued that CIL did not allow the length of a baseline drawn across a
bay to be longer than ten miles. Again, as with the Asylum Case, the primary
holding of the case was that the alleged CIL rule did not exist. In the alternative,
the court briefly remarked that, had the rule existed, it would not have applied
against Norway because Norway had always opposed any attempt to apply it to
the Norwegian coast.This language is often cited in support of the persistent
objector doctrine, but it could just as easily be read to support the Default View
of CIL, since there is nothing in this language that suggests that Norways
opposition must have occurred prior to the establishment of the alleged rule of
CIL. The arguments of the parties do not resolve this uncertainty: although the
United Kingdom appears to have supported something like the modern
persistent objector doctrine, at least for rights historically exercised by a state
(while asserting that Norway had not met its requirements),Norway (which
prevailed in the case) appears to have supported something closer to the
Default View.
The Asylum and Fisheries decisions provide no more than passing and
ambiguous support for the doctrine. State practice since those decisions is also
relatively unhelpful, since there have been essentially no instances in which
states have invoked the doctrine. As Professor Stein reported in a 1985 article,
his research had failed to turn up any case where an author provided even one
instance of a state claiming or granting an exemption from a rule on the basis
of the persistent objector principleexcepting of course the Asylum and
Fisheries cases themselves.

INTERNATIONAL SCHOOL ALLIANCE OF


EDUCATORS VS. QUISUMBING
Posted on June 26, 2013 by winnieclaire

Standard
FACTS:
The private respondent, International School, Inc. pursuant to Presidential Decree 732, is a domestic educational
institution established primarily for dependents of foreign diplomatic personnel and other temporary residents.

The school grants foreign-hires certain benefits not accorded to local hires. These include housing, transportation,
shipping costs, taxes, and home leave travel allowance. Foreign hires are also paid a salary rate twenty-five percent
(25%) more than local hires. The School justifies the difference on two significant economic disadvantages foreignhires have to endure, namely (a) the dislocation factor and (b) limited tenure.
The compensation scheme is simply the Schools adaptive measure to remain competitive on an international level in
terms of attracting competent professionals in the field of international education.
Local hires filed a petition claiming that point-of-hire classification employed by the School is discriminatory to
Filipinos and that the grant of higher salaries to foreign-hires constitutes racial discrimination.
ISSUE: Whether or not the Schools system of compensation is violative of the principle of equal pay for equal work
RULING: Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135, for example,
prohibits and penalizes the payment of lesser compensation to female employees as against a male employee for
work of equal value. Art. 248 declares it an unfair labor practice for an employer to discriminate in regard to wages in
order to encourage or discourage membership in an labor organization.
Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar
conditions, should paid similar salaries. If an employer accords employees the same position and rank, the
presumption is that these employees perform equal work. This presumption is borne by logic and human
experience. If the employer has discriminated against an employee, it is for the employer to explain why the
employee is treated unfairly.
The employer in this case had failed to do so. There is no evidence here that foreign-hires perform 25% more
efficiently or effectively than local-hires. Both groups have similar functions and responsibilities, which they perform
under similar working conditions.

ISAE vs. QUISUMBING Leave a comment


INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS (ISAE), petitioner, vs.
HON. LEONARDO A. QUISUMBING in his capacity as the Secretary of Labor
and Employment; HON. CRESENCIANO B. TRAJANO in his capacity as the
Acting Secretary of Labor and Employment; DR. BRIAN MACCAULEY in his
capacity as the Superintendent of International School-Manila; and
INTERNATIONAL SCHOOL, INC., respondents.,
G.R. No. 128845, June 1, 2000
FACTS:
Private respondent International School, Inc. (School), pursuant to PD 732, is a
domestic educational institution established primarily for dependents of foreign
diplomatic personnel and other temporary residents. The decree authorizes the
School to employ its own teaching and management personnel selected by it either
locally or abroad, from Philippine or other nationalities, such personnel being
exempt from otherwise applicable laws and regulations attending their employment,
except laws that have been or will be enacted for the protection of employees.

School hires both foreign and local teachers as members of its faculty, classifying
the same into two: (1) foreign-hires and (2) local-hires.
The School grants foreign-hires certain benefits not accorded local-hires. Foreignhires are also paid a salary rate 25% more than local-hires.
When negotiations for a new CBA were held on June 1995, petitioner ISAE, a
legitimate labor union and the collective bargaining representative of all faculty
members of the School, contested the difference in salary rates between foreign
and local-hires. This issue, as well as the question of whether foreign-hires should
be included in the appropriate bargaining unit, eventually caused a deadlock
between the parties.
ISAE filed a notice of strike. Due to the failure to reach a compromise in the NCMB,
the matter reached the DOLE which favored the School. Hence this petition.

ISSUE:
Whether the foreign-hires should be included in bargaining unit of local- hires.

RULING:
NO. The Constitution, Article XIII, Section 3, specifically provides that labor is
entitled to humane conditions of work. These conditions are not restricted to the
physical workplace the factory, the office or the field but include as well the
manner by which employers treat their employees.
Discrimination, particularly in terms of wages, is frowned upon by the Labor Code.
Article 248 declares it an unfair labor practice for an employer to discriminate in
regard to wages in order to encourage or discourage membership in any labor
organization.
The Constitution enjoins the State to protect the rights of workers and promote
their welfare, In Section 18, Article II of the constitution mandates to afford labor
full protection. The State has the right and duty to regulate the relations between
labor and capital. These relations are not merely contractual but are so impressed

with public interest that labor contracts, collective bargaining agreements included,
must yield to the common good.
However, foreign-hires do not belong to the same bargaining unit as the local-hires.
A bargaining unit is a group of employees of a given employer, comprised of all or
less than all of the entire body of employees, consistent with equity to the employer
indicate to be the best suited to serve the reciprocal rights and duties of the parties
under the collective bargaining provisions of the law.
The factors in determining the appropriate collective bargaining unit are (1) the will
of the employees (Globe Doctrine); (2) affinity and unity of the employees interest,
such as substantial similarity of work and duties, or similarity of compensation and
working conditions (Substantial Mutual Interests Rule); (3) prior collective
bargaining history; and (4) similarity of employment status. The basic test of an
asserted bargaining units acceptability is whether or not it is fundamentally the
combination which will best assure to all employees the exercise of their collective
bargaining rights.
In the case at bar, it does not appear that foreign-hires have indicated their
intention to be grouped together with local-hires for purposes of collective
bargaining. The collective bargaining history in the School also shows that these
groups were always treated separately. Foreign-hires have limited tenure; localhires enjoy security of tenure. Although foreign-hires perform similar functions
under the same working conditions as the local-hires, foreign-hires are accorded
certain benefits not granted to local-hires such as housing, transportation, shipping
costs, taxes and home leave travel allowances. These benefits are reasonably
related to their status as foreign-hires, and justify the exclusion of the former from
the latter. To include foreign-hires in a bargaining unit with local-hires would not
assure either group the exercise of their respective collective bargaining rights.
WHEREFORE, the petition is GIVEN DUE COURSE. The petition is hereby GRANTED
IN PART.