Beruflich Dokumente
Kultur Dokumente
-Furthermore
when
the
crimes
charged
against
petitioner
were
allegedly
committed
the
Philippines
was
under
the
sovereignty
of
United
States
and
thus
we
were
equally
bound
together
with
the
United
States
and
with
Japan
Our
rights
and
obligation
were
not
erased
by
our
assumption
of
full
sovereignty
but
entitles
us
to
enforce
the
right
on
our
own
of
trying
and
punishing
those
who
committed
crimes
against
crimes
against
our
people.
War
crimes
committed
against
our
people
and
our
government
while
we
were
a
Commonwealth
are
triable
and
punishable
by
our
present
Republic.
-
Military
Commission
is
a
special
military
tribunal
governed
by
a
special
law
and
not
by
the
Rules
of
court
which
govern
ordinary
civil
court.
It
has
already
been
shown
that
Executive
Order
No.
68
which
provides
for
the
organization
of
such
military
commission
is
a
valid
and
constitutional
law.
There
is
nothing
in
said
executive
order
which
requires
that
counsel
appearing
before
said
commission
must
be
attorneys
qualified
to
practice
law
in
the
Philippines
in
accordance
with
the
Rules
of
Court.
In
facts
it
is
common
in
military
tribunals
that
counsel
for
the
parties
are
usually
military
personnel
who
are
neither
attorneys
nor
even
possessed
of
legal
training.
-Secondly
the
appointment
of
the
two
American
attorneys
is
not
violative
of
our
nation
sovereignty.
It
is
only
fair
and
proper
that
United
States,
which
has
submitted
the
vindication
of
crimes
against
her
government
and
her
people
to
a
tribunal
of
our
nation
should
be
allowed
representation
in
the
trial
of
those
very
crimes
-It
is
of
common
knowledge
that
the
United
State
and
its
people
have
been
equally
if
not
more
greatly
aggrieved
by
the
crimes
with
which
petitioner
stands
charged
before
the
Military
Commission.
It
can
be
considered
a
privilege
for
our
Republic
that
a
leader
nation
should
submit
the
vindication
of
the
honor
of
its
citizens
and
its
government
to
a
military
tribunal
of
our
country.
-The
Military
Commission
having
been
convened
by
virtue
of
a
valid
law
with
jurisdiction
over
the
crimes
charged
which
fall
under
the
provisions
of
Executive
Order
No.
68,
and
having
said
petitioner
in
its
custody,
this
Court
will
not
interfere
with
the
due
process
of
such
Military
commission.
Tomoyuki
Yamashita
vs.
Wilhem
Styer
G.R.
L-129
December
19,
1945
Ponente:
Moran,
C.J.
FACTS:
1.
Yamashita
was
the
Commanding
General
of
the
Japanese
army
in
the
Philippines
during
World
War
2.
He
was
charged
before
the
American
military
commission
for
war
crimes.
2.
He
filed
a
petition
for
habeas
corpus
and
prohibition
against
Gen.
Styer
to
reinstate
his
status
as
prisoner
of
war
from
being
accused
as
a
war
criminal.
Petitioner
also
questioned
the
jurisdiction
of
the
military
tribunal.
Issue:
Whether
or
not
the
military
tribunal
has
jurisdiction
HELD:
YES.
1.
The
military
commission
was
lawfully
created
in
conformity
with
an
act
of
Congress
sanctioning
the
creation
of
such
tribunals.
2.
The
laws
of
war
imposes
upon
a
commander
the
duty
to
take
any
appropriate
measures
within
his
powers
to
control
the
troops
under
his
command
to
prevent
acts
which
constitute
violation
of
the
laws
of
war.
Hence,
petitioner
could
be
legitimately
charged
with
personal
responsibility
arising
from
his
failure
to
take
such
measure.
In
this
regard
the
SC
invoked
Art.
1
of
the
Hague
Convention
No.
IV
of
1907,
as
well
as
Art.
19
of
Hague
Convention
No.
X,
Art.
26
of
1929
Geneva
Convention
among
others.
3.
Habeas
corpus
is
untenable
since
the
petitioner
merely
sought
for
restoration
to
his
former
status
as
prisoner
of
war
and
not
a
discharge
from
confinement.
This
is
a
matter
of
military
measure
and
not
within
the
jurisdiction
of
the
courts.
4.
The
petition
for
prohibition
against
the
respondent
will
also
not
life
since
the
military
commission
is
not
made
a
party
respondent
in
the
case.
As
such,
no
order
may
be
issued
requiring
it
to
refrain
from
trying
the
petitioner.
countries
to
escape
such
a
situation,
such
as
appellee-petitioner,
lose
all
bonds
of
attachments
to
their
former
fatherlands.
1.
YES.
The
judicial
acts
and
proceedings
of
the
court
were
good
and
valid.
The
government,
during
the
Japanese
occupation
being
de
facto
government,
it
necessarily
follows
that
the
judicial
acts
and
proceedings
of
the
court
of
justice
of
those
governments,
which
are
not
of
a
political
complexion,
were
good
and
valid.
Those
not
only
judicial
but
also
legislative
acts
of
de
facto
government,
which
are
not
of
a
political
complexion,
are
remain
valid
after
reoccupation
of
a
territory.
2.
NO.
The
proclamation
does
not
invalidate
the
judgement
and
judicial
proceedings.
And
applying
the
principles
for
the
exercise
of
military
authority
in
an
occupied
territory,
President
McKinley,
in
his
executive
order
to
the
Secretary
of
War
of
May
19,1898,
said
in
part:
"Though
the
powers
of
the
military
occupant
are
absolute
and
supreme,
and
immediately
operate
upon
the
political
condition
of
the
inhabitants,
the
municipal
laws
of
the
conquered
territory,
such
as
affect
private
rights
of
person
and
property
and
provide
for
the
punishment
of
crime,
are
considered
as
continuing
in
force,
so
far
as
they
are
compatible
with
the
new
order
of
things,
until
they
are
suspended
or
superseded
by
the
occupying
belligerent;
and
in
practice
they
are
not
usually
abrogated,
but
are
allowed
to
remain
in
force
and
to
be
administered
by
the
ordinary
tribunals,
substantially
as
they
were
before
the
occupation.
This
enlightened
practice
is,
so
far
as
possible,
to
be
adhered
to
on
the
present
occasion.
The
judges
and
the
other
officials
connected
with
the
administration
of
justice
may,
if
they
accept
the
authority
of
the
United
States,
continue
to
administer
the
ordinary
law
of
the
land
as
between
man
and
man
under
the
supervision
of
the
American
Commander
in
Chief."
RAMON
GONZALES
VS
RUFINO
HECHANOVA
9
SCRA
23
FACTS:
During
the
term
of
President
Diosdado
Macapagal,
he
entered
into
two
executive
agreements
with
Vietnam
and
Burma
for
the
importation
of
rice
without
complying
with
the
requisite
of
securing
a
certification
from
the
National
Economic
Council
showing
that
there
is
a
shortage
in
cereals
or
rice.
Hence,
the
then
Executive
Secretary,
Rufino
Hechanova,
authorized
the
importation
of
67,000
tons
of
rice
from
abroad
to
the
detriment
of
our
local
planters.
Ramon
Gonzales,
then
president
of
the
Iloilo
Palay
and
Corn
Planters
Association
assailed
the
executive
agreements.
Gonzales
averred
that
Hechanova
is
without
jurisdiction
or
in
excess
of
jurisdiction,
because
Republic
Act
3452
prohibits
the
importation
of
rice
and
corn
by
the
Rice
and
Corn
Administration
or
any
other
government
agency.
ISSUE:
Whether
or
not
RA
3452
prevails
over
the
2
executive
agreements
entered
into
by
Macapagal.
Whether
an
executive
or
an
international
agreement
may
be
invalidated
by
our
courts
HELD:
Yes.
Under
the
Constitution,
the
main
function
of
the
Executive
is
to
enforce
laws
enacted
by
Congress.
The
former
may
not
interfere
in
the
performance
of
the
legislative
powers
of
the
latter,
except
in
the
exercise
of
his
veto
power.
He
may
not
defeat
legislative
enactments
that
have
acquired
the
status
of
laws,
by
indirectly
repealing
the
same
through
an
executive
agreement
providing
for
the
performance
of
the
very
act
prohibited
by
said
laws.
In
the
event
of
conflict
between
a
treaty
and
a
statute,
the
one
which
is
latest
in
point
of
time
shall
prevail,
is
not
applicable
to
the
case
at
bar,
Hechanova
not
only
admits,
but,
also,
insists
that
the
contracts
adverted
to
are
not
treaties.
No
such
justification
can
be
given
as
regards
executive
agreements
not
authorized
by
previous
legislation,
without
completely
upsetting
the
principle
of
separation
of
powers
and
the
system
of
checks
and
balances
which
are
fundamental
in
our
constitutional
set
up.
As
regards
the
question
whether
an
executive
or
an
international
agreement
may
be
invalidated
by
our
courts,
suffice
it
to
say
that
the
Constitution
of
the
Philippines
has
clearly
settled
it
in
the
affirmative,
by
providing
that
the
SC
may
not
be
deprived
of
its
jurisdiction
to
review,
revise,
reverse,
modify,
or
affirm
on
appeal,
certiorari,
or
writ
of
error,
as
the
law
or
the
rules
of
court
may
provide,
final
judgments
and
decrees
of
inferior
courts
in
All
cases
in
which
the
constitutionality
or
validity
of
any
treaty,
law,
ordinance,
or
executive
order
or
regulation
is
in
question.
In
other
words,
our
Constitution
authorizes
the
nullification
of
a
treaty,
not
only
when
it
conflicts
with
the
fundamental
law,
but,
also,
when
it
runs
counter
to
an
act
of
Congress.
LAO
ICHONG
VS.
JAIME
HERNANDEZ
G.R.
No.
L-7995
May
31,
1957
FACTS:
Lao
Ichong
is
a
Chinese
businessman
who
entered
the
country
to
take
advantage
of
business
opportunities
herein
abound
(then)
particularly
in
the
retail
business.
For
some
time
he
and
his
fellow
Chinese
businessmen
enjoyed
a
monopoly
in
the
local
market
in
Pasay.
Until
in
June
1954
when
Congress
passed
the
RA
1180
or
the
Retail
Trade
Nationalization
Act
the
purpose
of
which
is
to
reserve
to
Filipinos
the
right
to
engage
in
the
retail
business.
Ichong
then
petitioned
for
the
nullification
of
the
said
Act
on
the
ground
that
it
contravened
several
treaties
concluded
by
the
RP
which,
according
to
him,
violates
the
equal
protection
clause
(pacta
sund
servanda).
He
said
that
as
a
Chinese
businessman
engaged
in
the
business
here
in
the
country
who
helps
in
the
income
generation
of
the
country
he
should
be
given
equal
opportunity.
ISSUE:
Whether
or
not
a
law
may
invalidate
or
supersede
treaties
or
generally
accepted
principles.
HELD:
Yes,
a
law
may
supersede
a
treaty
or
a
generally
accepted
principle.
In
this
case,
there
is
no
conflict
at
all
between
the
raised
generally
accepted
principle
and
with
RA
1180.
The
equal
protection
of
the
law
clause
does
not
demand
absolute
equality
amongst
residents;
it
merely
requires
that
all
persons
shall
be
treated
alike,
under
like
circumstances
and
conditions
both
as
to
privileges
conferred
and
liabilities
enforced;
and,
that
the
equal
protection
clause
is
not
infringed
by
legislation
which
applies
only
to
those
persons
falling
within
a
specified
class,
if
it
applies
alike
to
all
persons
within
such
class,
and
reasonable
grounds
exist
for
making
a
distinction
between
those
who
fall
within
such
class
and
those
who
do
not.
For
the
sake
of
argument,
even
if
it
would
be
assumed
that
a
treaty
would
be
in
conflict
with
a
statute
then
the
statute
must
be
upheld
because
it
represented
an
exercise
of
the
police
power
which,
being
inherent
could
not
be
bargained
away
or
surrendered
through
the
medium
of
a
treaty.
Hence,
Ichong
can
no
longer
assert
his
right
to
operate
his
market
stalls
in
the
Pasay
city
market.
North
Sea
Continental
Shelf
Cases
(Federal
Republic
of
Germany/Denmark,
Federal
Republic
of
Germany/Netherlands)
I.C.J.
Reports
1969
Overview:
The
jurisprudence
of
the
North
Sea
Continental
Shelf
Cases
sets
out
the
dual
requirement
for
forming
customary
international
law
State
practice
(objective
element)
and
opinio
juris
(subjective
element).
It
elaborated
the
criteria
necessary
to
establish
State
practice
widespread
and
representative
participation.
The
case
highlighted
that
the
State
practice
of
importance
were
of
those
States
whose
interests
were
affected
by
the
custom.
It
also
identified
the
fact
that
uniform
and
consistent
practice
was
necessary
to
show
opinio
juris
a
belief
that
the
practice
amounts
to
a
legal
obligation.
The
North
Sea
Continental
Self
Cases
also
dispelled
the
myth
that
duration
of
the
practice
(i.e.
the
number
of
years)
was
an
essential
factor
in
forming
customary
international
law.
The
case
involved
the
delimitation
of
the
continental
shelf
areas
in
the
North
Sea
between
Germany
and
Denmark
and
Germany
and
Netherlands
beyond
the
partial
boundaries
previously
agreed
upon
by
these
States.
The
parties
requested
the
ICJ
to
decide
the
principles
and
rules
of
international
law
that
are
applicable
to
the
above
delimitation.
The
parties
disagreed
on
the
applicable
principles
or
rules
of
delimitation
Netherlands
and
Denmark
relied
on
the
principle
of
equidistance
(the
method
of
determining
the
boundaries
in
such
a
way
that
every
point
in
the
boundary
is
equidistant
from
the
nearest
points
of
the
baselines
from
which
the
breath
of
the
territorial
sea
of
each
State
is
measured).
Germany
sought
to
get
a
decision
in
favour
of
the
notion
that
the
delimitation
of
the
relevant
continental
shelf
is
governed
by
the
principle
that
each
coastal
state
is
entitled
to
a
just
and
equitable
share
(hereinafter
called
just
and
equitable
principle/method).
Contrary
to
Denmark
and
Netherlands,
Germany
argued
that
the
principle
of
equidistance
was
neither
a
mandatory
rule
in
delimitation
of
the
continental
shelf
nor
a
rule
of
customary
international
law
that
was
not
binding
on
Germany.
The
court
was
not
asked
to
delimit
the
parties
agreed
to
delimit
the
continental
shelf
as
between
their
countries,
by
agreement,
after
the
determination
of
the
ICJ
on
the
applicable
principles.
Facts
of
the
Case:
Netherlands
and
Denmark
had
drawn
partial
boundary
lines
based
on
the
equidistance
principle
(A-B
and
C-D).
An
agreement
on
further
prolongation
of
the
boundary
proved
difficult
because
Denmark
and
Netherlands
wished
this
prolongation
to
take
place
based
on
the
equidistance
principle
(B-E
and
D-E)
where
as
Germany
was
of
the
view
that,
together,
these
two
boundaries
would
produce
an
inequitable
result
for
her.
Germany
stated
that
due
to
its
concave
coastline,
such
a
line
would
result
in
her
loosing
out
on
her
share
of
the
continental
shelf
based
on
proportionality
to
the
length
of
its
North
Sea
coastline.
The
Court
had
to
decide
the
principles
and
rules
of
international
law
applicable
to
this
delimitation.
In
doing
so,
the
court
had
to
decide
if
the
principles
espoused
by
the
parties
were
binding
on
the
parties
either
through
treaty
law
or
customary
international
law.
Questions
before
the
Court:
Is
Germany
under
a
legal
obligation
to
accept
the
equidistance-special
circumstances
principle,
contained
in
Article
6
of
the
Geneva
Convention,
either
as
a
customary
international
law
rule
or
on
the
basis
of
the
Geneva
Convention?
The
Courts
Decision:
The
use
of
the
equidistance
method
had
not
crystallised
into
customary
law
and
was
is
not
obligatory
for
the
delimitation
of
the
areas
in
the
North
Sea
related
to
the
present
proceedings.
Relevant
Findings
of
the
Court:
Nature
of
the
treaty
obligation:
Is
the
1958
Geneva
Convention,
and
in
particular
Article
6,
binding
on
Germany?
1.
Article
6
of
the
Geneva
Convention
on
the
Continental
Shelf
states
that
unless
the
parties
have
agreed
on
a
method
for
delimitation
or
unless
special
circumstances
exist,
the
equidistance
method
would
apply
(see
Article
6).
Germany
has
signed
but
not
ratified
the
Geneva
Convention,
while
Netherlands
and
Denmark
are
parties
to
the
Convention.
The
latter
two
States
argue
that
while
Germany
is
not
a
party
to
the
Convention
(not
having
ratified
it),
she
is
still
bound
by
Article
6
of
the
Convention
because:
(1)
by
conduct,
by
public
statements
and
proclamations,
and
in
other
ways,
the
Republic
has
unilaterally
assumed
the
obligations
of
the
Convention;
or
has
manifested
its
acceptance
of
the
conventional
regime;
or
has
recognized
it
as
being
generally
applicable
to
the
delimitation
of
continental
shelf
areas
(2)
the
Federal
Republic
had
held
itself
out
as
so
assuming,
accepting
or
recognizing,
in
such
a
manner
as
to
cause
other
States,
and
in
particular
Denmark
and
the
Netherlands,
to
rely
on
the
attitude
thus
taken
up
(the
latter
is
called
the
principle
of
estoppel).
2.
The
Court
rejected
the
first
argument.
It
stated
that
only
a
very
definite
very
consistent
course
of
conduct
on
the
part
of
a
State
would
allow
the
court
to
presume
that
a
State
had
somehow
become
bound
by
a
treaty
(by
a
means
other
than
in
a
formal
manner:
i.e.
ratification)
when
the
State
was
at
all
times
fully
able
and
entitled
to
accept
the
treaty
commitments
in
a
formal
manner.
The
Court
held
that
Germany
had
not
unilaterally
assumed
obligations
under
the
Convention.
The
court
also
took
notice
of
the
fact
that
even
if
Germany
ratified
the
treaty,
she
had
the
option
of
entering
into
a
reservation
on
Article
6
following
which
that
particular
article
would
no
longer
be
applicable
to
Germany
(i.e.
even
if
one
were
to
assume
that
Germany
had
intended
to
become
a
party
to
the
Convention,
it
does
not
presuppose
that
it
would
have
also
undertaken
those
obligations
contained
in
Article
6).
3.
NB:
The
Vienna
Convention
on
the
Law
of
Treaties
of
1969
(VCLT),
which
came
into
force
in
1980,
discusses
more
fully
the
obligations
of
third
States
to
treaties.
It
clearly
stipulates
that
an
obligation
arises
for
a
third
State
from
a
provision
of
a
treaty
only
if
(1)
the
parties
to
the
treaty
intend
the
provision
to
create
this
obligation
for
the
third
States;
and
(2)
the
third
State
expressly
accepts
that
obligation
in
writing
(A.
35
of
the
VCLT).
The
VCLT
was
not
in
force
when
the
ICJ
deliberated
on
this
case.
However,
as
seen
above,
the
ICJs
position
was
consistent
the
VCLT.
(See
the
relevant
provisions
of
the
Vienna
Convention
on
the
Law
of
Treaties).
4.
The
court
held
that
the
existence
of
a
situation
of
estoppel
would
have
allowed
Article
6
to
become
binding
on
Germany
but
held
that
Germanys
action
did
not
support
an
argument
for
estoppel.
The
court
also
held
that
the
mere
fact
that
Germany
may
not
have
specifically
objected
to
the
equidistance
principle
as
contained
in
Article
6
is
not
sufficient
to
state
that
the
principle
is
now
binding
upon
it.
5.
In
conclusion,
the
court
held
that
Germany
had
not
acted
in
any
way
to
incur
obligations
contained
in
Article
6
of
the
Geneva
Convention.
The
equidistance
special
circumstances
rule
was
not
binding
on
Germany
by
way
of
treaty.
Nature
of
the
customary
international
law
obligation:
Is
Germany
bound
by
the
provisions
of
Article
6
of
the
Geneva
Convention
by
way
of
customary
international
law?
6.
Netherlands
and
Denmark
argued
that
Article
6
also
reflected
the
accepted
rule
of
general
international
law
on
the
subject
of
continental
shelf
delimitation
and
existed
independently
of
the
Convention.
Therefore,
they
argued,
Germany
is
bound
by
it
by
way
of
customary
international
law.
7.
To
decide
if
the
equidistance
principle
bound
Germany
by
way
of
customary
international
law,
the
court
examined
(1)
the
status
of
the
principle
contained
in
Article
6
as
it
stood
when
the
Convention
was
being
drawn
up
(2)
and
after
the
latter
came
into
force.
What
was
the
customary
law
status
of
Article
6
at
the
time
of
drafting
the
Convention?
8.
The
court
held
the
principle
of
equidistance,
as
contained
in
Article
6,
did
not
form
a
part
of
existing
or
emerging
customary
international
law
at
the
time
of
drafting
the
Convention.
The
Court
supported
this
finding
based
on
(1)
the
hesitation
expressed
by
the
drafters
of
the
Convention
International
Law
Commission
on
the
inclusion
of
Article
6
(para.
62)
and
(2)
the
fact
reservations
to
Article
6
was
permissible
under
the
Convention
(Article
12).
The
court
held:
Article
6
is
one
of
those
in
respect
of
which,
under
the
reservations
article
of
the
Convention
(Article
12)
reservations
may
be
made
by
any
State
on
signing,
ratifying
or
acceding
for,
speaking
generally,
it
is
a
characteristic
of
purely
conventional
rules
and
obligations
that,
in
regard
to
them,
some
faculty
of
making
unilateral
reservations
may,
within
certain
limits,
be
admitted;
whereas
this
cannot
be
so
in
the
case
of
general
or
customary
law
rules
and
obligations
which,
by
their
very
nature,
must
have
equal
force
for
all
members
of
the
international
community,
and
cannot
therefore
be
the
subject
of
any
right
of
unilateral
exclusion
exercisable
at
will
by
any
one
of
them
in
its
own
favor.
The
normal
inference
would
therefore
be
that
any
articles
that
do
not
figure
among
those
excluded
from
the
faculty
of
reservation
under
Article
12,
were
not
regarded
as
declaratory
of
previously
existing
or
emergent
rules
of
law
(see
para
65
for
a
counter
argument
and
the
courts
careful
differentiation)
Did
the
provisions
in
Article
6
on
the
equidistance
principle
attain
the
customary
law
status
after
the
Convention
came
into
force?
9.
The
court
then
examined
whether
the
rule
contained
in
Article
6
had
become
customary
international
law
after
the
Convention
entered
into
force
either
due
the
convention
itself
(i.e.,
if
enough
States
had
ratified
the
Convention
in
a
manner
to
fulfil
the
criteria
specified
below),
or
because
of
subsequent
State
practice
(i.e.
even
if
adequate
number
of
States
had
not
ratified
the
Convention
one
could
find
sufficient
State
practice
to
meet
the
criteria
below).
The
court
held
that
Article
6
of
the
Convention
had
not
attained
a
customary
law
status
(compare
the
1958
Geneva
Convention
with
the
four
Geneva
Conventions
on
1949
in
the
field
of
international
humanitarian
law
in
terms
of
its
authority
as
a
pronouncement
of
customary
international
law).
10.
For
a
customary
rule
to
emerge
the
court
held
that
it
needed:
(1)
very
widespread
and
representative
participation
in
the
convention,
including
States
whose
interests
were
specially
affected
(i.e.
generality);
and
(2)
virtually
uniform
practice
(i.e.
consistent
and
uniform
usage)
undertaken
in
a
manner
that
demonstrates
(3)
a
general
recognition
of
the
rule
of
law
or
legal
obligation
(i.e.
opinio
juries).
In
the
North
Sea
Continental
Shelf
cases
the
court
held
that
the
passage
of
a
considerable
period
of
time
was
unnecessary
(i.e.
duration)
for
the
formation
of
a
customary
law.
Widespread
and
representative
participation
11.
The
court
held
that
the
first
criteria
was
not
met.
The
number
of
ratifications
and
accessions
to
the
convention
(39
States)
were
not
adequately
representative
(including
of
coastal
States
i.e.
those
States
whose
rights
are
affected)
or
widespread.
Duration
12.
The
court
held
that
duration
taken
for
the
customary
law
rule
to
emerge
is
not
as
important
as
widespread
and
representative
participation,
uniform
usage
and
the
existence
of
an
opinio
juris.
Although
the
passage
of
only
a
short
period
of
time
(in
this
case,
3
5
years)
is
not
necessarily,
or
of
itself,
a
bar
to
the
formation
of
a
new
rule
of
customary
international
law
on
the
basis
of
what
was
originally
a
purely
conventional
rule,
an
indispensable
requirement
would
be
that
within
the
period
in
question,
short
though
it
might
be,
State
practice,
including
that
of
States
whose
interests
are
specially
affected,
should
have
been
both
extensive
and
virtually
uniform
in
the
sense
of
the
provision
invoked
and
should
moreover
have
occurred
in
such
a
way
as
to
show
a
general
recognition
that
a
rule
of
law
or
legal
obligation
is
involved
(text
in
brackets
added).
Opinio
juris
13.
Opinio
juris
is
reflected
in
acts
of
States
(Nicaragua
Case)
or
in
omissions
(Lotus
case)
in
so
far
as
those
acts
or
omissions
are
done
following
a
belief
that
the
said
State
is
obligated
by
law
to
act
or
refrain
from
acting
in
a
particular
way.
(For
more
on
opinio
juris
click
here).
14.
The
Court
examined
15
cases
where
States
had
delimited
their
boundaries
using
the
equidistance
method,
after
the
Convention
came
into
force
(paras.
75
-77).
The
court
concluded,
even
if
there
were
some
State
practice
in
favour
of
the
equidistance
principle
the
court
could
not
deduct
the
necessary
opinio
juris
from
this
State
practice.
The
North
Sea
Continental
Shelf
Cases
confirmed
that
both
State
practice
(the
objective
element)
and
opinio
juris
(the
subjective
element)
are
essential
pre-requisites
for
the
formation
of
a
customary
law
rule.
This
is
consistent
with
Article
38
(1)
(b)
of
the
Statute
of
the
ICJ.
The
following
explains
the
concept
of
opinio
juris
and
the
difference
between
customs
(i.e.
habits)
and
customary
law:
Not
only
must
the
acts
concerned
amount
to
a
settled
practice,
but
they
must
also
be
such,
or
be
carried
out
in
such
a
way,
as
to
be
evidence
of
a
belief
that
this
practice
is
rendered
obligatory
by
the
existence
of
a
rule
of
law
requiring
it.
The
need
for
such
a
belief,
i.e,
the
existence
of
a
subjective
element,
is
implicit
in
the
very
notion
of
the
opinio
juris
sive
necessitatis.
The
States
concerned
must
therefore
feel
that
they
are
conforming
to
what
amounts
to
a
legal
obligation.
The
frequency,
or
even
habitual
character
of
the
acts
is
not
in
itself
enough.
There
are
many
international
acts,
e.g.,
in
the
field
of
ceremonial
and
protocol,
which
are
performed
almost
invariably,
but
which
are
motivated
only
by
considerations
of
courtesy,
convenience
or
tradition,
and
not
by
any
sense
of
legal
duty.
15.
The
court
concluded
that
the
equidistance
principle
was
not
binding
on
Germany
by
way
of
treaty
or
customary
international
law
because,
in
the
case
of
the
latter,
the
principle
had
not
attained
a
customary
international
law
status
at
the
time
of
the
entry
into
force
of
the
Geneva
Convention
or
thereafter.
As
such,
the
court
held
that
the
use
of
the
equidistance
method
is
not
obligatory
for
the
delimitation
of
the
areas
concerned
in
the
present
proceedings.
NICARAGUA
VS
UNITED
STATES:
AN
ANALYSIS
OF
JURISPRUDENCE
ON
CUSTOMARY
INTERNATIONAL
LAW
Case:
Case
Concerning
the
Military
and
Paramilitary
Activities
In
and
Against
Nicaragua
(Nicaragua
vs
United
States)
Year
of
Decision:
1986.
Court:
ICJ.
Overview:
The
case
involved
military
and
paramilitary
activities
conducted
by,
or
with
the
assistance
of,
the
United
States
against
Nicaragua
from
1981
to
1984.
Due
to
a
multilateral
treaty
reservation
of
the
United
States
(hereinafter
called
the
Vandenberg
reservation),
the
Court
was
compelled
to
base
its
findings
only
on
customary
and
general
principles
of
international
law.
As
a
result,
the
Nicaragua
case
developed
significant
jurisprudence
on
clarifying
customary
international
law
on
the
use
of
force
and
non-intervention,
elements
necessary
to
form
customary
international
law
and
the
relationship
between
the
latter
and
treaty
law.
Controversial
aspects
of
the
decision
included
the
courts
methodology
used
to
determine
that
the
principle
of
non-intervention
had
attained
customary
law
status,
the
courts
reliance
on
UN
resolutions
as
a
source
of
opinio
juris
and
the
courts
reliance
on
multilateral
treaties
to
determine
customary
international
law
in
face
of
the
Vandenberg
reservation.
In
the
Nicaragua
case,
the
ICJ
discussed:
The
competence
of
the
ICJ
to
give
its
determination
based
on
customary
international
law
in
the
face
of
the
Vandenberg
reservation
of
the
United
States.
The competence of the ICJ to give its determination based on customary international law
The
competence
of
the
ICJ
to
give
its
determination
based
on
customary
international
law
1.
The
United
States
when
accepting
the
compulsory
jurisdiction
of
the
ICJ
(under
Article
36(2)
of
the
ICJ
Statute)
entered
into
the
Vandenberg
reservation.
This
reservation
barred
the
ICJ
from
using
certain
multilateral
treaties
in
the
adjudication
of
the
dispute.
2.
The
United
States
held
that
this
reservation
barred
the
Court
from
determining
the
case
even
on
the
basis
of
customary
and
general
principles
of
international
law
because
customary
law
provisions,
on
which
Nicaragua
relied
on,
were
identical
to
provisions
in
treaties
sought
to
be
excluded.
Because
of
the
identical
content,
the
United
States
argued,
treaty
provisions
supervene
and
subsume
the
parallel
customary
law
provision
(see
below).
3.
The
Court
disagreed.
It
held
that
multilateral
treaty
reservations
could
not
preclude
the
Court
from
determining
cases
relying
customary
international
law
because
the
latter
exists
independently
of
treaty
law.
NB:
The
United
States
disagreed
with
the
Courts
determination
to
proceed
with
the
case
and
refused
to
participate
further,
including
at
the
merits
stage
(see
the
declaration
made
by
the
United
States
in
this
regard).
Although
the
Court
was
barred
from
resorting
to
multilateral
treaties,
it
referred
to
the
latter,
including
the
UN
Charter,
to
identify
the
existence,
nature
and
scope
of
various
customary
law
principles.
Commentators
criticised
the
Court
for
circumventing
the
multilateral
reservation
in
this
manner.
Relationship
between
treaty
law
and
customary
international
law
4.
As
we
noted
before,
the
United
States
argued
that
when
customary
international
law
and
treaty
law
contain
the
same
content;
the
treaty
law
subsumes
and
supervenes
customary
international
law.
In
other
words,
the
existence
of
principles
in
the
United
Nations
Charter
precludes
the
possibility
that
similar
rules
might
exist
independently
in
customary
international
law,
either
because
existing
customary
rules
had
been
incorporated
into
the
Charter,
or
because
the
Charter
influenced
the
later
adoption
of
customary
rules
with
a
corresponding
content
(para
174).
5.
In
its
response,
the
Court
distinguished
two
situations:
(a)
Situations
where
the
customary
law
principles
were
identical
to
treaty
provisions;
and
(b)
Situations
where
customary
law
and
treaty
law
rights
and
obligations
differed
in
respect
of
the
same
subject
matter.
6.
In
situations
where
customary
law
principles
were
identical
to
treaty
provisions
(reflected
as
(a)
above),
the
Court,
quite
correctly,
disagreed
with
the
view
of
the
United
States.
It
held
that
even
if
principles
of
customary
international
law
are
codified
into
treaties,
the
former
continues
to
exist
side
by
side
with
the
latter.
For
treaty
parties,
both
customary
and
treaty
law
apply
and
if,
for
some
reason,
the
treaty
ceases
to
apply
the
identical
customary
law
provision
continues
to
apply
between
them
unaffected
(see
more
on
para
178).
7.
The
fact
that
customary
international
law
exists
alongside
treaty
law
was
an
argument
brought
by
Norway
and
Denmark
in
the
North
Sea
Continental
Shelf
Cases.
In
these
cases,
the
two
countries
having
failed
to
attribute
an
obligation
under
Article
6
of
the
Geneva
Conventions
of
1958
to
Germany,
sought
to
bind
Germany
via
customary
international
law.
In
this
case
the
Court
determined
that
Article
6
neither
reflected
customary
law
at
the
time
of
the
codification,
nor
had
it
attained
that
status
at
the
time
of
the
determination.
In
the
Nicaragua
case,
the
Court
relied
on
the
North
Sea
Continental
Shelf
Cases
to
support
the
assertion
that
principles
of
customary
international
law
can
exist
side
by
side
with
identical
treaty
law
provisions
and
the
latter
does
not
supervene
the
former
in
a
manner
where
the
former
ceases
to
exist
(para
177).
8.
The
Court
also
relied
on
Article
51
of
the
UN
Charter
to
show
that
a
treaty
itself
can
recognise
the
existence
of
customary
international
law
on
the
same
subject
matter.
The
term
inherent
in
Article
51
recognised
that
customary
law
rights
of
self-defense
existed
alongside
treaty
provisions.
9.
Rules
containing
the
same
content
could
be
treated
differently
in
customary
international
law
and
in
treaty
law.
For
example,
treaty
law
may
contain
institutions
or
mechanisms
to
ensure
the
effective
implementation
of
its
provisions,
including
those
that
reflect
customary
law.
One
could
take
the
Courts
reading
of
Article
51
as
an
example.
A
State
that
exercises
the
right
of
self-defence
under
Article
51,
according
to
the
UN
Charter,
has
an
obligation
to
report
the
use
of
force
immediately
to
the
Security
Council.
The
Court
held
that
this
was
a
treaty
requirement
and
one
that
did
not
exist
under
customary
law.
Interestingly,
although
the
failure
to
report
did
not
result
in
a
breach
of
customary
international
law,
the
Court
indicated
that
the
United
States
failure
to
observe
this
requirement
contradicted
her
claim
to
be
acting
in
self
defence
(see
paras
200,
235).
10.
The
Court
discussed
situations
where
customary
international
law
and
treaty
law
provisions
were
not
identical
(see
point
(b)
above).
For
example,
the
Court
referred
to
the
fact
that
concepts
such
and
necessity
and
proportionality,
or
the
definition
of
what
constitutes
an
armed
attack,
are
not
found
under
Article
51,
or
the
UN
Charter,
but
in
customary
law.
The
Court
concluded
that
(1)
this
proves
that
customary
international
law
continues
to
exist
alongside
treaty
law
and
that
(2)
areas
governed
by
the
two
sources
of
law
do
not
(always)
overlap
and
the
rules
do
not
(always)
have
the
same
content.
the
Charter,
having
itself
recognized
the
existence
of
this
right
(inherent
customary
law
right
of
self-defence
under
A.
51
of
the
UN
Charter),
does
not
go
on
to
regulate
directly
all
aspects
of
its
content.
For
example,
it
does
not
contain
any
specific
rule
whereby
self-defence
would
warrant
only
measures
which
are
proportional
to
the
armed
attack
and
necessary
to
respond
to
it,
a
rule
well
established
in
customary
international
law.
Moreover,
a
definition
of
the
armed
attack
which,
if
found
to
exist,
authorises
the
exercise
of
the
inherent
right
of
self-
defence,
is
not
provided
in
the
Charter,
and
is
not
part
of
treaty
law.
It
cannot
therefore
be
held
that
Article
51
is
a
provision
which
subsumes
and
supervenes
customary
international
law.
11.
In
case
of
a
divergence
between
treaty
law
and
customary
international
law,
for
the
parties
to
the
treaty,
amongst
themselves,
the
treaty
provisions
apply
as
lex
specialis.
The
courts
support
for
this
principle
can
be
found
in
paras
180
and
181.
The
Court,
in
conclusion,
explained
the
relationship
between
the
UN
Charter
and
customary
international
law
in
the
following
manner:
However,
so
far
from
having
constituted
a
marked
departure
from
a
customary
international
law
which
still
exists
unmodified,
the
Charter
gave
expression
in
this
field
(on
the
use
of
force
and
self
defence)
to
principles
already
present
in
customary
international
law,
and
that
law
has
in
the
subsequent
four
decades
developed
under
the
influence
of
the
Charter,
to
such
an
extent
that
a
number
of
rules
contained
in
the
Charter
have
acquired
a
status
independent
of
it.
The
essential
consideration
is
that
both
the
Charter
and
the
customary
international
law
flow
from
a
common
fundamental
principle
outlawing
the
use
of
force
in
international
relations.
The
differences
which
may
exist
between
the
specific
content
of
each
are
not,
in
the
Courts
view,
such
as
to
cause
a
judgment
confined
to
the
field
of
customary
international
law
to
be
ineffective
or
inappropriate
(to
the
parties
of
the
Charter
who
are
bound
by
the
Charter)
(text
in
brackets
added)(para
181).
The
relationship
between
customary
international
law
and
jus
cogens
13.
The
court
cited
material
presented
by
Nicaragua,
the
United
States
and
the
International
Law
Commission
to
argue
that
the
prohibition
on
the
use
of
force
contained
in
Article
2(4)
of
the
UN
Charter
has
attained
the
status
of
a
jus
cogens
norm.
The
Court
found
this
to
be
A
further
confirmation
of
the
validity
as
customary
international
law
of
the
principle
of
the
prohibition
of
the
use
of
force
expressed
in
Article
2,
paragraph
4,
of
the
Charter
of
the
United
Nations
(para
190).
The
necessary
elements
to
determine
the
existence
of
customary
international
law
14.
The
Court,
similar
to
the
North
Sea
Continental
Shelf
Case,
considered
both
the
subjective
element
(opinio
juris)
and
the
objective
element
(State
practice)
as
essential
pre-requisites
to
the
formation
and
elucidation
of
a
customary
international
law
norm
(para
207).
The
jurisprudence
of
the
Nicaragua
case
contained
an
important
clarification
inconsistent
State
practice
does
not
affect
the
formation
or
continued
existence
of
a
customary
principle
so
long
as
the
inconsistency
is
justified
as
a
breach
of
the
rule.
It
is
not
to
be
expected
that
in
the
practice
of
States
the
application
of
the
rules
in
question
should
have
been
perfect,
in
the
sense
that
States
should
have
refrained,
with
complete
consistency,
from
the
use
of
force
or
from
intervention
in
each
others
internal
affairs.
The
Court
does
not
consider
that,
for
a
rule
to
be
established
as
customary,
the
corresponding
practice
must
be
in
absolutely
rigorous
conformity
with
the
rule.
In
order
to
deduce
the
existence
of
customary
rules,
the
Court
deems
it
sufficient
that
the
conduct
of
States
should,
in
general,
be
consistent
with
such
rules,
and
that
instances
of
State
conduct
inconsistent
with
a
given
rule
should
generally
have
been
treated
as
breaches
of
that
rule,
not
as
indications
of
the
recognition
of
a
new
rule.
If
a
State
acts
in
a
way
prima
facie
incompatible
with
a
recognized
rule,
but
defends
its
conduct
by
appealing
to
exceptions
or
justifications
contained
within
the
rule
itself,
then
whether
or
not
the
States
conduct
is
in
fact
justifiable
on
that
basis,
the
significance
of
that
attitude
is
to
confirm
rather
than
to
weaken
the
rule.
(para
186)
15.
The
Nicaragua
jurisprudence
explained
how
one
could
deduct
opinio
juris
from
acts
of
State.
The
Court
held
that
opinio
juris
could
be
deduced
from:
-
the
attitude
of
States
towards
certain
General
Assembly
resolutions.
For
example,
the
Declaration
on
Principles
of
International
Law
concerning
Friendly
Relations
(hereafter
called
the
Declaration
on
Friendly
Relations).
The
Court
held
that:
The
effect
of
consent
to
the
text
of
such
resolutions
cannot
be
understood
as
merely
that
of
a
reiteration
or
elucidation
of
the
treaty
commitment
undertaken
in
the
Charter.
On
the
contrary,
it
may
be
understood
as
an
acceptance
of
the
validity
of
the
rule
or
set
of
rules
declared
by
the
resolution
by
themselvesIt
would
therefore
seem
apparent
that
the
attitude
referred
to
expresses
an
opinio
juris
respecting
such
rule
(or
set
of
rules),
to
be
thenceforth
treated
separately
from
the
provisions,
especially
those
of
an
institutional
kind,
to
which
it
is
subject
on
the
treaty-law
plane
of
the
Charter
-
Statements
by
State
representatives.
-
Obligations
undertaken
by
participating
States
in
international
forums
(the
Court
provided
the
example
of
the
Conference
on
Security
and
Co-operation
in
Europe,
Helsinki)
-
The
International
Law
Commissions
findings
that
a
concept
amounts
to
a
customary
law
principle.
-
Multilateral
conventions.
NB:
The
fact
that
the
Court
relied
on
resolutions
of
the
United
Nations
to
deduct
opinio
juris
was
subject
to
criticism.
As
you
know,
opinio
juris
is
the
subjective
element
necessary
to
form
customary
law.
Opinio
juris
is
reflected
in
instances
where
the
State
undertakes
a
particular
practice
because
it
believes
that
it
is
legally
bound
to
do
so.
Voting
patterns
in
the
United
Nations
are
often
guided
by
policy
considerations
over
legal
merits.
The
General
Assemblys
subject
matter
is
more
policy
oriented
than
legal
(for
which
we
have
the
6th
Committee).
For
example,
when
the
United
States
voted
for
the
Friendly
Relations
Declaration
it
stated
on
record
its
belief
that
the
Declaration
was
only
a
statement
of
political
intention
and
not
an
expression
of
the
law.
This
is
not
to
say
that
provisions
on
General
Assembly
Resolutions
that
guide
the
international
community
to
act
in
a
certain
way
may
not
eventually
become
binding
international
law
(either
by
attaining
customary
law
status
or
becoming
codified
into
treaty
law).
It
can,
if
there
is
adequate
State
practice
and
opinio
juris.
The
argument
is
that
opinio
juris
cannot
be
said
to
exist
based
merely
on
a
vote
in
favour
of
a
non-binding
resolution
in
the
absence
of
an
examination
of
subsequent
consistent
and
general
State
practice
(which,
in
turn,
reflects
or
confirms
opinio
juris).
Customary
international
law
relating
to
principles
of
non-intervention
16.
The
Court
held
that
Principles
such
as
those
of
the
non-use
of
force
(para
191),
non-intervention
(para
192),
respect
for
the
independence
and
territorial
integrity
of
States,
right
of
collective
self
defence
(para
193)
and
the
freedom
of
navigation,
continue
to
be
binding
as
part
of
customary
international
law,
despite
the
operation
of
provisions
of
conventional
law
in
which
they
have
been
incorporated
(text
in
brackets
added).
17.
The
Courts
finding
that
principle
of
non-intervention
formed
a
part
of
customary
international
law
invited
criticism
from
commentators,
partly
because
they
disagreed
that
the
principle
formed
customary
international
law
and
partly
because
of
the
Courts
own
contradictions
in
coming
to
its
conclusions
and
inadequacy
of
analysis
(see
below).
The
Courts
contradiction
stems
from
this
statement:
The
principle
of
non-intervention
involves
the
right
of
every
sovereign
State
to
conduct
its
affairs
without
outside
interference;
though
examples
of
trespass
against
this
principle
are
not
infrequent,
the
Court
considers
that
it
is
part
and
parcel
of
customary
international
law(emphasis
added.
Para
202).
18.
The
Court
began
its
analysis
with
two
questions:
Notwithstanding
the
multiplicity
of
declarations
by
States
accepting
the
principle
of
non-intervention,
there
remain
two
questions:
first,
what
is
the
exact
content
of
the
principle
so
accepted,
and
secondly,
is
the
practice
sufficiently
in
conformity
with
it
for
this
to
be
a
rule
of
customary
international
law?
The
first
question
was
discussed
in
a
previous
post
and
will
not
be
discussed
here.
18.
Although
the
question
seemed
to
direct
the
Court
towards
identifying
an
existing
custom,
in
its
response
the
Court
seemed
to
have
already
determined
that
the
customary
law
prohibition
of
non-intervention
existed.
In
the
following
passage
the
Court
deliberates
if,
in
contrast,
a
customary
law
right
to
intervention
had
evolved.
There
have
been
in
recent
years
a
number
of
instances
of
foreign
intervention
for
the
benefit
of
forces
opposed
to
the
government
of
another
State.
The
Court
is
not
here
concerned
with
the
process
of
decolonisation
It
has
to
consider
whether
there
might
be
indications
of
a
practice
illustrative
of
belief
in
a
kind
of
general
right
for
States
to
intervene,
directly
or
indirectly,
with
or
without
armed
force,
in
support
of
an
internal
opposition
in
another
State,
whose
cause
appeared
particularly
worthy
by
reason
of
the
political
and
moral
values
with
which
it
was
identified.
For
such
a
general
right
to
come
into
existence
would
involve
a
fundamental
modification
of
the
customary
law
principle
of
non-intervention.
(paras
206,
207).
19.
The
Court
went
on
to
hold,
as
before,
that
for
a
new
customary
rule
to
be
formed,
not
only
must
the
acts
concerned
amount
to
a
settled
practice,
but
they
must
be
accompanied
by
the
opinio
juris
sive
necessitates.
The
significance
for
the
Court
of
cases
of
State
conduct
prima
facie
inconsistent
with
the
principle
of
non-
intervention
lies
in
the
nature
of
the
ground
offered
as
justification.
Reliance
by
a
State
on
a
novel
right
or
an
unprecedented
exception
to
the
principle
might,
if
shared
in
principle
by
other
States,
tend
towards
a
modification
of
customary
international
law.
In
fact
however
the
Court
finds
that
States
have
not
justified
their
conduct
by
reference
to
a
new
right
of
intervention
or
a
new
exception
to
the
principle
of
its
prohibition.
The
United
States
authorities
have
on
some
occasions
clearly
stated
their
grounds
for
intervening
in
the
affairs
of
a
foreign
State
for
reasons
connected
with,
for
example,
the
domestic
policies
of
that
country,
its
ideology,
the
level
of
its
armaments,
or
the
direction
of
its
foreign
policy.
But
these
were
statements
of
international
policy,
and
not
an
assertion
of
rules
of
existing
international
law.
20.
The
Court
also
noted
that
the
United
States
has
not
sought
to
justify
its
intervention
in
Nicaragua
on
legal
grounds,
but
had
only
justified
it
at
a
political
level.
The
United
States
had
not
asserted
for
itself
legal
right
of
intervention
in
these
circumstances.
The
Court,
without
further
analysis
into
State
practice,
almost
immediately
proceeded
to
find
that
no
such
general
right
of
intervention,
in
support
of
an
opposition
within
another
State,
exists
in
contemporary
international
law.
The
Court
concludes
that
acts
constituting
a
breach
of
the
customary
principle
of
non-intervention
will
also,
if
they
directly
or
indirectly
involve
the
use
of
force,
constitute
a
breach
of
the
principle
of
non-use
of
force
in
international
relations
(para
209).
Development
of
a
parallel
customary
international
law?
In
addition
to
the
comments
made
above
in
italics,
another
interesting
aspect
of
the
judgment
is
that
it
sought
to
divorce
customary
international
law
obligation
from
the
identical
treaty
obligation
because
of
the
jurisdictional
bar
to
consider
multilateral
treaties.
In
its
consideration
of
customary
international
law
it
developed
certain
principles
independently
of
the
treaty.
For
example,
Article
2(4)
of
the
UN
Charter
prohibits
the
threat
or
use
of
force
against
another
State.
The
Court
held
that
the
same
prohibition
on
the
use
of
force
could
be
found
under
customary
international
law
and
as
a
jus
cogens
norm.
The
Court
then
went
on
to
categorize
the
use
of
force
under
customary
law
as
either
a
grave
use
of
force
(i.e.
use
of
force
amounting
to
an
armed
attack)
or
a
less
grave
use
of
force
(i.e.
use
of
force
that
falls
short
of
an
armed
attack
for
example,
the
threat
to
use
force).
The
Court,
then,
restricted
the
right
of
self-defense
to
a
situation
where
there
had
been
a
grave
use
of
force
(or
an
armed
attack,
as
defined
by
the
Court).
If
one
were
to
hold
that
the
relevant
Charter
principles
were
clear,
precise
and
unambiguous,
one
could
say
this
divorced
interpretation
could
result
in
customary
law
developing
in
a
manner
that
is
not
in
line
with
the
Charter
and
thereby
creating
separate
rights/
regimes
of
law
that
govern
the
same
subject
matter.
This
is
because,
then,
the
two
regimes
would
be
irreconcilable.
However,
the
fact
remains
that
the
Charter
does
leave
room
for
interpretation
for
example,
on
the
definition
of
an
armed
attack
or
on
the
use
of
force.
In
cases
of
ambiguity,
Article
31
of
the
Vienna
Convention
on
the
Law
of
Treaties
directs
us
to
look
at,
inter
alia,
subsequent
practice
and
any
relevant
rules
of
international
law
that
maybe
applicable.
In
other
words,
a
treaty
can
be
interpreted
with
the
assistance
of
customary
and
general
principles
of
international
law.
In
this
case,
the
development
of
customary
law
would
also
mean
a
potential
development
of
ambiguous
treaty
law
and
a
reconciliation
of
treaty
and
customary
law
provisions.
ASYLUM
CASE
Name
of
the
Case:
Asylum
Case
(Columbia/Peru);
Year
of
the
decision:
1950;
and
Court:
ICJ.
Overview:
Columbia
granted
asylum
to
a
Peruvian,
accused
of
taking
part
in
a
military
rebellion
in
Peru.
Was
Columbia
entitled
to
make
a
unilateral
and
definitive
qualification
of
the
offence
(as
a
political
offence)
in
a
manner
binding
on
Peru
and
was
Peru
was
under
a
legal
obligation
to
provide
safe
passage
for
the
Peruvian
to
leave
Peru?
Facts
of
the
Case:
Peru
issued
an
arrest
warrant
against
Victor
Raul
Haya
de
la
Torre
in
respect
of
the
crime
of
military
rebellion
which
took
place
on
October
3,
1949,
in
Peru.
3
months
after
the
rebellion,
Torre
fled
to
the
Colombian
Embassy
in
Lima,
Peru.
The
Colombian
Ambassador
confirmed
that
Torre
was
granted
diplomatic
asylum
in
accordance
with
Article
2(2)
of
the
Havana
Convention
on
Asylum
of
1928
and
requested
safe
passage
for
Torre
to
leave
Peru.
Subsequently,
the
Ambassador
also
stated
Colombia
had
qualified
Torre
as
a
political
refugee
in
accordance
with
Article
2
Montevideo
Convention
on
Political
Asylum
of
1933
(note
the
term
refugee
is
not
the
same
as
the
Refugee
Convention
of
1951).
Peru
refused
to
accept
the
unilateral
qualification
and
refused
to
grant
safe
passage.
Questions
before
the
Court:
(1)
Is
Colombia
competent,
as
the
country
that
grants
asylum,
to
unilaterally
qualify
the
offence
for
the
purpose
of
asylum
under
treaty
law
and
international
law?
(2)
In
this
specific
case,
was
Peru,
as
the
territorial
State,
bound
to
give
a
guarantee
of
safe
passage?
(3)
Did
Colombia
violate
Article
1
and
2
(2)
of
the
Convention
on
Asylum
of
1928
(hereinafter
called
the
Havana
Convention)
when
it
granted
asylum
and
is
the
continued
maintenance
of
asylum
a
violation
of
the
treaty?
The
Courts
Decision:
Relevant
Findings
of
the
Court:
(1)
Is
Colombia
competent,
as
the
country
that
grants
asylum,
to
unilaterally
qualify
the
offence
for
the
purpose
of
asylum
under
treaty
law
and
international
law?
1.
The
court
stated
that
in
the
normal
course
of
granting
diplomatic
asylum
a
diplomatic
representative
has
the
competence
to
make
a
provisional
qualification
of
the
offence
(for
example,
as
a
political
offence)
and
the
territorial
State
has
the
right
to
give
consent
to
this
qualification.
In
the
Torres
case,
Colombia
has
asserted,
as
the
State
granting
asylum,
that
it
is
competent
to
qualify
the
nature
of
the
offence
in
a
unilateral
and
definitive
manner
that
is
binding
on
Peru.
The
court
had
to
decide
if
such
a
decision
was
binding
on
Peru
either
because
of
treaty
law
(in
particular
the
Havana
Convention
of
1928
and
the
Montevideo
Convention
of
1933),
other
principles
of
international
law
or
by
way
of
regional
or
local
custom.
2.
The
court
held
that
there
was
no
expressed
or
implied
right
of
unilateral
and
definitive
qualification
of
the
State
that
grants
asylum
under
the
Havana
Convention
or
relevant
principles
of
international
law
(p.
12,
13).
The
Montevideo
Convention
of
1933,
which
accepts
the
right
of
unilateral
qualification,
and
on
which
Colombia
relied
to
justify
its
unilateral
qualification,
was
not
ratified
by
Peru.
The
Convention,
per
say,
was
not
binding
on
Peru
and
considering
the
low
numbers
of
ratifications
the
provisions
of
the
latter
Convention
cannot
be
said
to
reflect
customary
international
law
(p.
15).
3.
Colombia
also
argued
that
regional
or
local
customs
support
the
qualification.
The
court
held
that
the
burden
of
proof
on
the
existence
of
an
alleged
customary
law
rests
with
the
party
making
the
allegation:
The
Party
which
relies
on
a
custom
of
this
kind
must
prove
that
this
custom
is
established
in
such
a
manner
that
it
has
become
binding
on
the
other
Party
(that)
it
is
in
accordance
with
a
(1)
constant
and
uniform
usage
(2)
practiced
by
the
States
in
question,
and
that
this
usage
is
(3)
the
expression
of
a
right
appertaining
to
the
State
granting
asylum
(Columbia)
and
(4)
a
duty
incumbent
on
the
territorial
State
(in
this
case,
Peru).
This
follows
from
Article
38
of
the
Statute
of
the
Court,
which
refers
to
international
custom
as
evidence
of
a
general
practice
accepted
as
law(text
in
brackets
added).
4.
The
court
held
that
Columbia
did
not
establish
the
existence
of
a
regional
custom
because
it
failed
to
prove
consistent
and
uniform
usage
of
the
alleged
custom
by
relevant
States.
The
fluctuations
and
contradictions
in
State
practice
did
not
allow
for
the
uniform
usage
(see
also
Mendelson,
1948
and
see
also
Nicaragua
case,
p.
98,
the
legal
impact
of
fluctuations
of
State
practice).
The
court
also
reiterated
that
the
fact
that
a
particular
State
practice
was
followed
because
of
political
expediency
and
not
because
of
a
belief
that
the
said
practice
is
binding
on
the
State
by
way
of
a
legal
obligation
(opinio
juris)
is
detrimental
to
the
formation
of
a
customary
law
(see
North
Sea
Continental
Shelf
Cases
and
Lotus
Case
for
more
on
opinio
juris):
[T]he
Colombian
Government
has
referred
to
a
large
number
of
particular
cases
in
which
diplomatic
asylum
was
in
fact
granted
and
respected.
But
it
has
not
shown
that
the
alleged
rule
of
unilateral
and
definitive
qualification
was
invoked
or
that
it
was,
apart
from
conventional
stipulations,
exercised
by
the
States
granting
asylum
as
a
right
appertaining
to
them
and
respected
by
the
territorial
States
as
a
duty
incumbent
on
them
and
not
merely
for
reasons
of
political
expediency.
The
facts
brought
to
the
knowledge
of
the
Court
disclose
so
much
uncertainty
and
contradiction,
so
much
fluctuation
and
discrepancy
in
the
exercise
of
diplomatic
asylum
and
in
the
official
views
expressed
on
various
occasions,
there
has
been
so
much
inconsistency
in
the
rapid
succession
of
conventions
on
asylum,
ratified
by
some
States
and
rejected
by
others,
and
the
practice
has
been
so
much
influenced
by
considerations
of
political
expediency
in
the
various
cases,
that
it
is
not
possible
to
discern
in
all
this
any
constant
and
uniform
usage,
mutually
accepted
as
law,
with
regard
to
the
alleged
rule
of
unilateral
and
definitive
qualification
of
the
offence.
5.
The
court
held
that
even
if
Colombia
could
prove
that
such
a
regional
custom
existed,
it
would
not
be
binding
on
Peru,
because
Peru
far
from
having
by
its
attitude
adhered
to
it,
has,
on
the
contrary,
repudiated
it
by
refraining
from
ratifying
the
Montevideo
Conventions
of
1933
and
1939,
which
were
the
first
to
include
a
rule
concerning
the
qualification
of
the
offence
[as
political
in
nature]
in
matters
of
diplomatic
asylum.
(See
in
this
regard,
the
lesson
on
persistent
objectors.
Similarly
in
the
North
Sea
Continental
Shelf
Cases
the
court
held
in
any
event
the
.
.
.
rule
would
appear
to
be
inapplicable
as
against
Norway
in
as
much
as
she
had
always
opposed
any
attempt
to
apply
it
to
the
Norwegian
coast.)
6.
The
court
concluded
that
Columbia,
as
the
State
granting
asylum,
is
not
competent
to
qualify
the
offence
by
a
unilateral
and
definitive
decision,
binding
on
Peru.
(2)
In
this
specific
case,
was
Peru,
as
the
territorial
State,
bound
to
give
a
guarantee
of
safe
passage?
7.
The
court
held
that
there
was
no
legal
obligation
on
Peru
to
grant
safe
passage
either
because
of
the
Havana
Convention
or
customary
law.
In
the
case
of
the
Havana
Convention,
a
plain
reading
of
Article
2
results
in
an
obligation
on
the
territorial
state
(Peru)
to
grant
safe
passage
only
after
it
requests
the
asylum
granting
State
(Columbia)
to
send
the
person
granted
asylum
outside
its
national
territory
(Peru).
In
this
case
the
Peruvian
government
had
not
asked
that
Torre
leave
Peru.
On
the
contrary,
it
contested
the
legality
of
asylum
granted
to
him
and
refused
to
grant
safe
conduct.
8.
The
court
looked
at
the
possibility
of
a
customary
law
emerging
from
State
practice
where
diplomatic
agents
have
requested
and
been
granted
safe
passage
for
asylum
seekers,
before
the
territorial
State
could
request
for
his
departure.
Once
more,
the
court
held
that
these
practices
were
a
result
of
a
need
for
expediency
and
other
practice
considerations
over
an
existence
of
a
belief
that
the
act
amounts
to
a
legal
obligation
(see
paragraph
4
above).
There
exists
undoubtedly
a
practice
whereby
the
diplomatic
representative
who
grants
asylum
immediately
requests
a
safe
conduct
without
awaiting
a
request
from
the
territorial
state
for
the
departure
of
the
refugeebut
this
practice
does
not
and
cannot
mean
that
the
State,
to
whom
such
a
request
for
safe-conduct
has
been
addressed,
is
legally
bound
to
accede
to
it.
(3)
Did
Colombia
violate
Article
1
and
2
(2)
of
the
Havana
Convention
when
it
granted
asylum
and
is
the
continued
maintenance
of
asylum
a
violation
of
the
treaty?
9.
Article
1
of
the
Havana
Convention
states
that
It
is
not
permissible
for
States
to
grant
asylum
to
persons
accused
or
condemned
for
common
crimes
(such
persons)
shall
be
surrendered
upon
request
of
the
local
government.
10.
In
other
words,
the
person-seeking
asylum
must
not
be
accused
of
a
common
crime
(for
example,
murder
would
constitute
a
common
crime,
while
a
political
offence
would
not).The
accusations
that
are
relevant
are
those
made
before
the
granting
of
asylum.
Torres
accusation
related
to
a
military
rebellion,
which
the
court
concluded
was
not
a
common
crime
and
as
such
the
granting
of
asylum
complied
with
Article
1
of
the
Convention.
11.
Article
2
(2)
of
the
Havana
Convention
states
that
Asylum
granted
to
political
offenders
in
legations,
warships,
military
camps
or
military
aircraft,
shall
be
respected
to
the
extent
in
which
allowed,
as
a
right
or
through
humanitarian
toleration,
by
the
usages,
the
conventions
or
the
laws
of
the
country
in
which
granted
and
in
accordance
with
the
following
provisions:
First:
Asylum
may
not
be
granted
except
in
urgent
cases
and
for
the
period
of
time
strictly
indispensable
for
the
person
who
has
sought
asylum
to
ensure
in
some
other
way
his
safety.
12.
An
essential
pre-requisite
for
the
granting
of
asylum
is
the
urgency
or,
in
other
words,
the
presence
of
an
imminent
or
persistence
of
a
danger
for
the
person
of
the
refugee.
The
court
held
that
the
facts
of
the
case,
including
the
3
months
that
passed
between
the
rebellion
and
the
time
when
asylum
was
sought,
did
not
establish
the
urgency
criteria
in
this
case
(pp.
20
-23).
The
court
held:
In
principle,
it
is
inconceivable
that
the
Havana
Convention
could
have
intended
the
term
urgent
cases
to
include
the
danger
of
regular
prosecution
to
which
the
citizens
of
any
country
lay
themselves
open
by
attacking
the
institutions
of
that
country
In
principle,
asylum
cannot
be
opposed
to
the
operation
of
justice.
13.
In
other
words,
Torre
was
accused
of
a
crime
but
he
could
not
be
tried
in
a
court
because
Colombia
granted
him
asylum.
The
court
held
that
protection
from
the
operation
of
regular
legal
proceedings
was
not
justified
under
diplomatic
asylum.
14.
The
court
held:
In
the
case
of
diplomatic
asylum
the
refugee
is
within
the
territory
of
the
State.
A
decision
to
grant
diplomatic
asylum
involves
a
derogation
from
the
sovereignty
of
that
State.
It
withdraws
the
offender
from
the
jurisdiction
of
the
territorial
State
and
constitutes
an
intervention
in
matters
which
are
exclusively
within
the
competence
of
that
State.
Such
a
derogation
from
territorial
sovereignty
cannot
be
recognised
unless
its
legal
basis
is
established
in
each
particular
case.
15.
As
a
result,
exceptions
to
this
rule
are
strictly
regulated
under
international
law.
An
exception
to
this
rule
(asylum
should
not
be
granted
to
those
facing
regular
prosecutions)
can
occur
only
if,
in
the
guise
of
justice,
arbitrary
action
is
substituted
for
the
rule
of
law.
Such
would
be
the
case
if
the
administration
of
justice
were
corrupted
by
measures
clearly
prompted
by
political
aims.
Asylum
protects
the
political
offender
against
any
measures
of
a
manifestly
extra-legal
character
which
a
Government
might
take
or
attempt
to
take
against
its
political
opponents
On
the
other
hand,
the
safety
which
arises
out
of
asylum
cannot
be
construed
as
a
protection
against
the
regular
application
of
the
laws
and
against
the
jurisdiction
of
legally
constituted
tribunals.
Protection
thus
understood
would
authorize
the
diplomatic
agent
to
obstruct
the
application
of
the
laws
of
the
country
whereas
it
is
his
duty
to
respect
them
Such
a
conception,
moreover,
would
come
into
conflict
with
one
of
the
most
firmly
established
traditions
of
Latin-America,
namely,
non-
intervention
[for
example,
by
Colombia
into
the
internal
affairs
of
another
State
like
Peru].
16.
Asylum
may
be
granted
on
humanitarian
grounds
to
protect
political
prisoners
against
the
violent
and
disorderly
action
of
irresponsible
sections
of
the
population.
(for
example
during
a
mob
attack
where
the
territorial
State
is
unable
to
protect
the
offender).
Torre
was
not
in
such
a
situation
at
the
time
when
he
sought
refuge
in
the
Colombian
Embassy
at
Lima.
17.
The
court
concluded
that
the
grant
of
asylum
and
reasons
for
its
prolongation
were
not
in
conformity
with
Article
2(2)
of
the
Havana
Convention
(p.
25).
The
grant
of
asylum
is
not
an
instantaneous
act
which
terminates
with
the
admission,
at
a
given
moment
of
a
refugee
to
an
embassy
or
a
legation.
Any
grant
of
asylum
results
in,
and
in
consequence,
logically
implies,
a
state
of
protection,
the
asylum
is
granted
as
long
as
the
continued
presence
of
the
refugee
in
the
embassy
prolongs
this
protection.
***
Before
proceeding
to
the
consideration
of
the
Merits,
the
Court
had
to
ascertain
whether
it
had
jurisdiction
to
do
so,
a
jurisdiction
which
India
had
expressly
contested.
In
its
Fifth
Preliminary
Objection
the
Government
of
India
relied
upon
the
reservation
in
its
Declaration
of
28
February
1940
accepting
the
jurisdiction
of
the
Court,
which
excluded
from
that
jurisdiction
disputes
with
regard
to
questions
which
by
international
law
fall
exclusively
within
the
jurisdiction
of
India.
The
Court
pointed
out
that
in
the
course
of
the
proceedings
both
Parties
had
taken
their
stand
on
grounds
which
were
on
the
plane
of
international
law,
and
had
on
occasion
expressly
said
so.
The
fifth
objection
could
not
therefore
be
upheld.
The
Sixth
Preliminary
Objection
likewise
related
to
a
limitation
in
the
Declaration
of
28
February
1940.
India,
which
had
accepted
the
jurisdiction
of
the
Court
"over
all
disputes
arising
after
February
5th,
1930,
with
regard
to
situations
or
facts
subsequent
to
the
same
date",
contended
that
the
dispute
did
not
satisfy
either
of
these
two
conditions.
As
to
the
first
condition,
the
Court
pointed
out
that
the
dispute
could
not
have
arisen
until
all
its
constituent
elements
had
come
into
existence;
among
these
were
the
obstacles
which
India
was
alleged
to
have
placed
in
the
way
of
exercise
of
passage
by
Portugal
in
1954;
even
if
only
that
part
of
the
dispute
relating
to
the
Portuguese
claim
to
a
right
of
passage
were
to
be
considered,
certain
incidents
had
occurred
before
1954,
but
they
had
not
led
the
Parties
to
adopt
clearly-defined
legal
positions
as
against
each
other;
accordingly,
there
was
no
justification
for
saying
that
the
dispute
arose
before
1954.
As
to
the
second
condition,
the
Permanent
Court
of
International
Justice
had
in
1938
drawn
a
distinction
between
the
situations
or
facts
which
constituted
the
source
of
the
rights
claimed
by
one
of
the
Parties,
and
the
situations
or
facts
which
were
the
source
of
the
dispute.
Only
the
latter
were
to
be
taken
into
account
for
the
purpose
of
applying
the
Declaration.
The
dispute
submitted
to
the
Court
was
one
with
regard
to
the
situation
of
the
enclaves,
which
had
given
rise
to
Portugal's
claim
to
a
right
of
passage
and,
at
the
same
time,
with
regard
to
the
facts
of
1954
which
Portugal
advanced
as
infringements
of
that
right;
it
was
from
all
of
this
that
the
dispute
arose,
and
this
whole,
whatever
may
have
been
the
earlier
origin
of
one
of
its
parts,
came
into
existence
only
after
5
February
1930.
The
Court
had
not
been
asked
for
any
finding
whatsoever
with
regard
to
the
past
prior
to
that
date;
it
was
therefore
of
opinion
that
the
sixth
objection
should
not
be
upheld
and,
consequently,
that
it
had
jurisdiction.
***
On
the
merits,
India
had
contended
in
the
first
place
that
the
right
of
passage
claimed
by
Portugal
was
too
vague
and
contradictory
to
enable
the
Court
to
pass
judgment
upon
it
by
the
application
of
the
legal
rules
enumerated
in
Article
38
(1)
of
the
Statute.
There
was
no
doubt
that
the
day-to-day
exercise
of
the
right
might
give
rise
to
delicate
questions
of
application
but
that
was
not,
in
the
view
of
the
Court,
sufficient
ground
for
holding
that
the
right
was
not
susceptible
of
judicial
determination.
Portugal
had
relied
on
the
Treaty
of
Poona
of
1779
and
on
sanads
(decrees)
issued
by
the
Maratha
ruler
in
1783
and
1785,
as
having
conferred
on
Portugal
sovereignty
over
the
enclaves
with
the
right
of
passage
to
them;
India
had
objected
that
what
was
alleged
to
be
the
Treaty
of
1779
was
not
validly
entered
into
and
never
became
in
law
a
treaty
binding
upon
the
Marathas.
The
Court,
however,
found
that
the
Marathas
did
not
at
any
time
cast
any
doubt
upon
the
validity
or
binding
character
of
the
Treaty.
India
had
further
contended
that
the
Treaty
and
the
two
sanads
did
not
operate
to
transfer
sovereignty
over
the
assigned
villages
to
Portugal
but
only
conferred,
with
respect
to
the
villages,
a
revenue
grant.
The
Court
was
unable
to
conclude
from
an
examination
of
the
various
texts
of
the
Treaty
of
1779
that
the
language
employed
therein
was
intended
to
transfer
sovereignty;
the
expressions
used
in
the
two
sanads,
on
the
other
hand,
established
that
what
was
granted
to
the
Portuguese
was
only
a
revenue
tenure
called
a
jagir
or
saranjam,
and
not
a
single
instance
had
been
brought
to
the
notice
of
the
Court
in
which
such
a
grant
had
been
construed
as
amounting
to
a
cession
of
sovereignty.
There
could,
therefore,
be
no
question
of
any
enclave
or
of
any
right
of
passage
for
the
purpose
of
exercising
sovereignty
over
enclaves.
The
Court
found
that
the
situation
underwent
a
change
with
the
advent
of
the
British
as
sovereign
of
that
part
of
the
country
in
place
of
the
Marathas:
Portuguese
sovereignty
over
the
villages
had
been
recognized
by
the
British
in
fact
and
by
implication
and
had
subsequently
been
tacitly
recognized
by
India.
As
a
consequence
the
villages
had
acquired
the
character
of
Portuguese
enclaves
within
Indian
territory
and
there
had
developed
between
the
Portuguese
and
the
territorial
sovereign
with
regard
to
passage
to
the
enclaves
a
practice
upon
which
Portugal
relied
for
the
purpose
of
establishing
the
right
of
passage
claimed
by
it.
It
had
been
objected
on
behalf
of
India
that
no
local
custom
could
be
established
between
only
two
States,
but
the
Court
found
it
difficult
to
see
why
the
number
of
States
between
which
a
local
custom
might
be
established
on
the
basis
of
long
practice
must
necessarily
be
larger
than
two.
It
was
common
ground
between
the
Parties
that
during
the
British
and
post-British
periods
the
passage
of
private
persons
and
civil
officials
had
not
been
subject
to
any
restrictions
beyond
routine
control.
Merchandise
other
than
arms
and
ammunition
had
also
passed
freely
subject
only,
at
certain
times,
to
customs
regulations
and
such
regulation
and
control
as
were
necessitated
by
considerations
of
security
or
revenue.
The
Court
therefore
concluded
that,
with
regard
to
private
persons,
civil
officials
and
goods
in
general
there
had
existed
a
constant
and
uniform
practice
allowing
free
passage
between
Daman
and
the
enclaves,
it
was,
in
view
of
all
the
circumstances
of
the
case,
satisfied
that
that
practice
had
been
accepted
as
law
by
the
Parties
and
had
given
rise
to
a
right
and
a
correlative
obligation.
As
regards
armed
forces,
armed
police
and
arms
and
ammunition,
the
position
was
different.
It
appeared
that,
during
the
British
and
post-British
periods,
Portuguese
armed
forces
and
armed
police
had
not
passed
between
Daman
and
the
enclaves
as
of
right,
and
that
after
1878
such
passage
could
only
take
place
with
previous
authorization
by
the
British
and
later
by
India,
accorded
either
under
a
reciprocal
arrangement
already
agreed
to,
or
in
individual
cases:
it
had
been
argued
that
that
permission
was
always
granted,
but
there
was
nothing
in
the
record
to
show
that
grant
of
permission
was
incumbent
on
the
British
or
on
India
as
an
obligation.
A
treaty
of
26
December
1878
between
Great
Britain
and
Portugal
had
laid
down
that
the
armed
forces
of
the
two
Governments
should
not
enter
the
Indian
dominions
of
the
other,
except
in
specified
cases
or
in
consequence
of
a
formal
request
made
by
the
party
desiring
such
entry.
Subsequent
correspondence
showed
that
this
provision
was
applicable
to
passage
between
Daman
and
the
enclaves:
it
had
been
argued
on
behalf
of
Portugal
that
on
twenty-three
occasions
armed
forces
crossed
British
territory
between
Daman
and
the
enclaves
without
obtaining
permission,
but
in
1890,
the
Government
of
Bombay
had
forwarded
a
complaint
to
the
effect
that
armed
men
in
the
service
of
the
Portuguese
Government
were
in
the
habit
of
passing
without
formal
request
through
a
portion
of
British
territory
en
route
from
Daman
to
Nagar-Aveli
which
would
appear
to
constitute
a
breach
of
the
Treaty;
on
22
December,
the
Governor-General
of
Portuguese
India
had
replied:
"Portuguese
troops
never
cross
British
territory
without
previous
permission",
and
the
Secretary-General
of
the
Government
of
Portuguese
India
stated
on
1
May
1891:
"On
the
part
of
this
Government
injunctions
will
be
given
for
the
strictest
observance
of
.
.
.
the
Treaty".
The
requirement
of
a
formal
request
before
passage
of
armed
forces
could
take
place
had
been
repeated
in
an
agreement
of
1913.
With
regard
to
armed
police,
the
Treaty
of
1878
and
the
Agreement
of
1913
had
regulated
passage
on
the
basis
of
reciprocity,
and
an
agreement
of
1920
had
provided
that
armed
police
below
a
certain
rank
should
not
enter
the
territory
of
the
other
party
without
consent
previously
obtained;
finally,
an
agreement
of
1940
concerning
passage
of
Portuguese
armed
police
over
the
road
from
Daman
to
Nagar-Aveli
had
provided
that,
if
the
party
did
not
exceed
ten
in
number,
intimation
of
its
passage
should
be
given
to
the
British
authorities
within
twenty-four
hours,
but
that,
in
other
cases,
"the
existing
practice
should
be
followed
and
concurrence
of
the
British
authorities
should
be
obtained
by
prior
notice
as
heretofore."
As
regards
arms
and
ammunition,
the
Treaty
of
1878
and
rules
framed
under
the
Indian
Arms
Act
of
1878
prohibited
the
importation
of
arms,
ammunition
or
military
stores
from
Portuguese
India
and
its
export
to
Portuguese
India
without
a
special
licence.
Subsequent
practice
showed
that
this
provision
applied
to
transit
between
Daman
and
the
enclaves.
The
finding
of
the
Court
that
the
practice
established
between
the
Parties
had
required
for
the
passage
of
armed
forces,
armed
police
and
arms
and
ammunition
the
permission
of
the
British
or
Indian
authorities
rendered
it
unnecessary
for
the
Court
to
determine
whether
or
not,
in
the
absence
of
the
practice
that
actually
prevailed,
general
international
custom
or
general
principles
of
law
recognized
by
civilized
nations,
which
had
also
been
invoked
by
Portugal,
could
have
been
relied
upon
by
Portugal
in
support
of
its
claim
to
a
right
of
passage
in
respect
of
these
categories.
The
Court
was
dealing
with
a
concrete
case
having
special
features:
historically
the
case
went
back
to
a
period
when,
and
related
to
a
region
in
which,
the
relations
between
neighbouring
States
were
not
regulated
by
precisely
formulated
rules
but
were
governed
largely
by
practice:
finding
a
practice
clearly
established
between
two
States,
which
was
accepted
by
the
Parties
as
governing
the
relations
between
them,
the
Court
must
attribute
decisive
effect
to
that
practice.
The
Court
was,
therefore,
of
the
view
that
no
right
of
passage
in
favour
of
Portugal
involving
a
correlative
obligation
on
India
had
been
established
in
respect
of
armed
forces,
armed
police
and
arms
and
ammunition.
Having
found
that
Portugal
had,
in
1954,
a
right
of
passage
in
respect
of
private
persons,
civil
officials
and
goods
in
general,
the
Court
lastly
proceeded
to
consider
whether
India
had
acted
contrary
to
its
obligation
resulting
from
Portugal's
right
of
passage
in
respect
of
any
of
these
categories.
Portugal
had
not
contended
that
India
had
acted
contrary
to
that
obligation
before
July
1954,
but
it
complained
that
passage
was
thereafter
denied
to
Portuguese
nationals
of
European
origin,
to
native
Indian
Portuguese
in
the
employ
of
the
Portuguese
Government
and
to
a
delegation
that
the
Governor
of
Daman
proposed,
in
July
1954,
to
send
to
Nagar-Aveli
and
Dadra.
The
Court
found
that
the
events
which
had
occurred
in
Dadra
on
21-22
July
1954
and
which
had
resulted
in
the
overthrow
of
Portuguese
authority
in
that
enclave
had
created
tension
in
the
surrounding
Indian
district,
having
regard
to
that
tension,
the
Court
was
of
the
view
that
India's
refusal
of
passage
was
covered
by
its
power
of
regulation
and
control
of
the
right
of
passage
of
Portugal.
For
these
reasons,
the
Court
reached
the
findings
indicated
above.
Case
Relating
to
the
Diversion
of
the
Water
From
the
Meuse
(Series
A/B
No
70
-
Series
C
No
8I)
Judgment
of
June
28th,
1937
PARTIES:
The
Netherlands-
Belgium.
Summary:
In
1863,
Belgium
and
the
Netherlands
signed
a
Treaty
governing
diversions
from
the
Meuse
that
would
supply
water
for
navigation
and
irrigation
canals.
As
economic
conditions
evolved,
both
States
enlarged
and
expanded
their
respective
waterways
by
constructing
new
canals,
locks,
and
barrages.
In
1937,
the
Netherlands
initiated
this
injunctive
proceeding,
alleging
that
Belgiums
expansion
projects
were
in
violation
of
the
treaty.
Belgium
filed
counterclaims
declaring
that
the
Netherland's
claims
were
ill-founded
and
that
the
expansion
projects
in
the
Netherlands
violated
the
treaty.
The
Court
concluded
that
the
Treaty
did
not
prevent
either
State
from
taking
the
actions
complained
of.
DOCUMENT
INSTITUTING
PROCEEDINGS
Application
of
the
Netherlands'
Government,
filed
with
the
Registry
on
August
1st,
1936,
based
on
Article
36,
paragraph
2
of
the
Statute.
AGENTS
AND
COUNSEL
MM.
Telders
(Netherlands),
de
Ruelle,
Delmer,
Marcq
(Belgium).
COMPOSITION
OF
THE
COURT
M.
Guerrero,
President;
Sir
Cecil
Hurst,
Vice-President;
Count
Rostworowski,
MM.
Fromageot,
de
Bustamante,
Altamira,
Anzilotti,
Negulesco,
Jonkheer
van
Eysinga,
MM.
Nagaoka,
Cheng,
Hudson,
De
Visscher,
Judges.
The
judgment
was
given
by
ten
votes
to
three.
POINTS
OF
LAW
Interpretation
of
treaties
(clear
text;
treaty
as
a
whole,
purpose,
intention
of
the
Parties,
priority
of
object
and
intent
over
literal
meaning)
-
Law
applicable
(lex
specialis
derogat
generali)
-
Treaties
(effects,
equality
of
the
Parties;
obligation
to
implement;
control
of
implementation)
-General
principles
of
law
(equity;
inadimplenti
non
est
adimplendum)
-Equity
-
Counter-claim
-
Damages
-
Judicial
inspection.
Facts:
On
May
l2th,
1863,
Belgium
and
the
Netherlands
concluded
a
Treaty
the
purpose
of
which
was
"to
settle
permanently
and
definitively
the
regime
governing
diversions
of
water
from
the
Meuse
for
the
feeding
of
navigation
canals
and
irrigation
channels.(1)
Article
I
of
this
Treaty
provided
for
the
construction
below
Maestricht,
in
Netherlands
territory,
of
a
new
intake
which
would
constitute
"the
feeding
conduit
for
all
canals
situated
below
that
town
and
for
irrigation
in
the
Campine
and
in
the
Netherlands.(2)
The
Belgian
Government
accepted
the
Treaty
not
without
reluctance,
in
view
of
the
fact
that
it
provided
for
only
one
intake
and
that
to
be
situated
in
foreign
territory.
When
the
economic
development
of
the
Belgian
and
Netherlands
provinces
of
Limburg
necessitated
the
enlargement
of
certain
canals
and
the
construction
of
new
works,
the
two
States
signed
in
1925
a
new
agreement
designed
to
settle
the
differences
which
had
arisen
in
respect
of
the
construction
programmes.
After
the
rejection
of
this
agreement
by
the
Netherlands
First
Chamber,
the
Netherlands
proceeded
to
construct
and
complete
the
Juliana
Canal,
the
Bosscheveld
Lock
and
the
Borgharen
barrage.
On
its
part,
Belgium
began
the
construction
of
the
Albert
Canal,
unfinished
at
the
time
of
the
judgment,
a
barrage
at
Monsin
and
a
lock
at
Neerhaeren.
As
no
further
progress
could
be
made
in
the
settlement
of
the
points
at
issue
between
the
two
States,
the
Netherlands
initiated
proceedings
in
the
Court
by
means
of
a
unilateral
application,
based
on
the
declarations
made
by
both
the
Netherlands
and
Belgium
in
which
they
accepted
the
compulsory
jurisdiction
of
the
Court
under
Article
36
(a)
of
the
Statute.
Belgium,
on
its
part,
made
a
counter-claim.
In
the
course
of
the
proceedings
and
at
the
suggestion
of
the
Belgian
Agent,
which
the
Netherlands
Agent
did
not
oppose,
the
Court
visited
the
locality
in
order
to
see
on
the
spot
the
installations,
canals
and
waterways
to
which
the
dispute
related
and
to
witness
practical
demonstrations
of
the
operations
of
locks
and
installations
connected
therewith.
Submissions
of
the
Parties
The
Netherlands
ask
the
Court
in
the
main
to
adjudge
and
declare
that
the
works
already
carried
out
by
Belgium
were
contrary
to
the
Treaty
of
1863,
that
the
proposed
works
would
be
contrary
to
it
and,
consequently,
to
"order
Belgium
a)
to
discontinue
all
the
works"
listed
in
the
Netherlands'
submissions
and
"to
restore
to
a
condition
consistent
with
the
Treaty
of
1863
all
works
constructed
in
breach
of
that
Treaty;
b)
to
discontinue
any
feeding
held
to
be
contrary
to
the
said
Treaty
and
to
refrain
from
any
further
such
feeding.(3)
On
its
part,
Belgium
asks
the
Court
to
declare
the
Netherlands'
submissions
ill-founded,
as
well
as
to
adjudge
and
declare,
in
respect
of
the
counter-claim,
that
the
Borgharen
barrage
was
constructed
in
breach
of
the
stipulations
of
the
Treaty
of
1863,
that
the
Juliana
Canal
is
subject
to
the
provisions
of
the
Treaty
and,
finally,
to
reserve
the
rights
accruing
to
Belgium
from
the
breaches
so
committed.
Summary
of
the
Judgment
Since
the
questions
at
issue
are
governed
by
the
Treaty
of
1863,
the
Court
at
the
outset
discards
the
application
to
the
dispute
of
the
general
rules
of
international
river
law
in
favour
of
the
interpretation
and
application
of
the
Treaty.
The
Netherlands
maintain
that
Article
I
of
the
Treaty,(4)
which
provides
for
a
single
feeder,
situated
in
Netherlands
territory,
gives
them
the
right
to
supervise
and
control
all
the
intakes,
situated
not
only
in
their
own
territory,
but
also
in
Belgian
territory.
This
contention
necessarily
implies
that
"the
Treaty
of
1863
intended
to
place
the
Parties
in
a
situation
of
legal
inequality
by
conferring
on
the
Nether-lands
a
right
of
control
to
which
Belgium
could
not
lay
claim.(5)
But,
in
order
to
allow
the
existence
of
such
inequality
between
the
Parties
to
a
treaty
freely
concluded,
the
text
of
the
treaty
must
say
so
in
precise
terms.
In
the
absence
of
such
terms,
the
Court
rejects
the
Netherlands'
submission.
While
criticizing
the
construction
by
Belgium
of
the
Neerhaeren
Lock,
the
Netherlands
do
not
invoke
a
specific
provision
of
the
Treaty.
The
Court
grants
that
the
Treaty
has
brought
into
existence
a
certain
rgime
which
results
from
all
its
provisions
taken
together
and
that,
accordingly,
it
forms
a
complete
whole,
the
different
provisions
of
which
cannot
be
dissociated
from
the
others
and
considered
in
isolation.
This
is
equally
the
case
with
Article
I
which
must
be
interpreted
together
with
the
other
Articles.
In
the
light
of
this
Article,
thus
interpreted,
neither
the
Netherlands'
contention
regarding
the
Neerhaeren
Lock,
nor
the
Belgian
reply,
can
be
accepted
in
its
entirety.
Furthermore,
the
Court,
after
mentioning
the
construction
by
the
Netherlands
of
the
Bosscheveld
Lock,
refuses
to
admit
the
Netherlands'
complaint
about
the
construction
and
operation
of
a
lock
of
which
they
themselves
set
an
example
in
the
past.
With
regard
to
the
supply
by
Belgium
to
a
section
of
the
Albert
Canal
of
water
taken
from
the
Meuse
elsewhere
than
at
Maestricht,
the
Court
considers
that
the
origin
of
the
water
is
irrelevant.
Nothing
prevents
either
Belgium
or
the
Netherlands
from
making
such
use
as
they
may
see
fit
of
the
canals
covered
by
the
Treaty,
when
the
canals
do
not
leave
their
own
territory.
Each
of
the
two
States
is
at
liberty
in
its
own
territory
to
modify
such
canals,
to
enlarge
them,
to
trans-form
them,
to
fill
them
in
and
even
to
increase
the
volume
of
water
in
them,
provided
that
the
diversion
of
water
at
the
feeder
mentioned
in
the
Treaty
and
the
volume
of
water
to
be
discharged
therefrom
is
not
affected.
The
same
reasoning
applies
to
the
Netherlands'
criticism
of
the
proposed
supply
by
Belgium
to
a
section
of
another
canal
of
water
taken
from
the
Meuse
elsewhere
than
at
Maestricht.
Having
thus
rejected
all
the
Netherlands'
submissions,
the
Court
proceeds
to
deal
with
the
Belgian
counter-
claims,
the
first
of
which
concerns
the
Borgharen
barrage.
The
Court
finds
that
the
Treaty
does
not
forbid
the
Netherlands
from
altering
the
depth
of
water
in
the
Meuse
at
Maestricht
without
the
consent
of
Belgium,
provided
that
neither
the
discharge
of
water
through
the
feeder,
nor
the
volume
of
water
which
it
must
supply,
nor
the
current
in
the
Zuid-Willemsvaart
is
thereby
affected.
It
is
subject
to
this
condition,
and
not
at
their
arbitrary
discretion,
that
the
Netherlands
are
entitled,
under
the
Treaty,
to
dispose
of
the
waters
of
the
Meuse
at
Maestricht.
With
regard
to
the
alleged
interference,
by
the
criticized
construction,
with
the
navigability
of
that
part
of
the
Meuse
common
to
both
States,
the
Court
considers
that
Belgium
has
not
produced
any
proof
of
it.
In
reply
to
the
second
Belgian
submission,
which
relates
to
the
Juliana
Canal,
the
Court
finds
that
the
Treaty
was
designed
to
regulate
the
supply
of
water
to
the
canals
situated
on
the
left
bank
of
the
Meuse
only.
Thus,
canals
situated
on
the
right
bank,
such
as
the
Juliana
Canal,
do
not
come
under
the
regime
of
water
supply
provided
for
by
the
Treaty.
For
these
reasons,
the
Court
rejects
both
the
Netherlands'
submissions
and
the
submissions
contained
in
the
Belgian
counter-claim.
Declaration
of
M.
De
visscher
M.
De
Visscher
declares
that
he
is
unable
to
concur
in
the
findings
of
the
Court
with
regard
to
the
Belgian
counter-claim.
Fisheries
Jurisdiction
(United
Kingdom
v.
Iceland)
Citation.
I.C.J.,
1973
I.C.J.
3
Brief
Fact
Summary.
Because
some
circumstances
changed,
Iceland
(D)
claimed
that
a
fishing
treaty
it
had
with
the
United
Kingdom
(P)
was
no
longer
applicable.
Synopsis
of
Rule
of
Law.
In
order
that
a
change
of
circumstances
may
give
rise
to
the
premise
calling
for
the
termination
of
a
treaty,
it
is
necessary
that
it
has
resulted
in
a
radical
transformation
of
the
extent
of
the
obligations
still
to
be
performed.
Facts.
Icelands
(D)
claim
to
a
12-mile
fisheries
limit
was
recognized
by
the
United
Kingdom
(P)
in
1961
in
return
for
Icelands
(D)
agreement
that
any
dispute
concerning
Icelandic
fisheries
jurisdiction
beyond
the
12-
mile
limit
be
referred
to
the
International
Court
of
Justice.
An
application
was
filed
before
the
I.C.J.
when
Iceland
(D)
proposed
to
extend
its
exclusive
fisheries
jurisdiction
from
12
to
50
miles
around
its
shores
in
1972.
By
postulating
that
changes
in
circumstances
since
the
12-mile
limit
was
now
generally
recognized
was
the
ground
upon
which
Iceland
(D)
stood
to
argue
that
the
agreement
was
no
longer
valid.
Iceland
(D)
also
asserted
that
there
would
be
a
failure
of
consideration
for
the
1961
agreement.
Issue.
In
order
that
a
change
of
circumstances
may
give
rise
to
a
ground
for
invoking
the
termination
of
a
treaty,
is
it
necessary
that
it
has
resulted
in
a
radical
transformation
of
the
extent
of
the
obligation
still
to
be
performed?
Held.
Yes.
In
order
that
a
change
of
circumstances
may
give
rise
to
the
premise
calling
for
the
termination
of
a
treaty,
it
is
necessary
that
it
has
resulted
in
a
radical
transformation
of
the
extent
of
the
obligations
still
to
be
performed.
The
change
of
circumstances
alleged
by
Iceland
(D)
cannot
be
said
to
have
transformed
radically
the
extent
of
the
jurisdictional
obligation
that
was
imposed
in
the
1961
Exchange
of
Notes.
Discussion.
Recourse
to
the
I.C.J.
in
the
event
of
a
dispute
was
the
original
agreement
between
the
parties.
The
economy
of
Iceland
(D)
is
dependent
on
fishing.
The
merit
of
Iceland
(D)
argument
was
not
reached
by
the
Court
in
this
case,
however,
but
rather
dealt
with
the
jurisdictional
issues.
Barcelona
Traction,
Light
and
Power
Company
Ltd,
(Belgium
v.
Spain)
Citation.
I.C.J.
1970
I.C.J.
3.
Brief
Fact
Summary.
Belgium
(P)
claimed
Spain
(D)
should
be
held
accountable
for
the
injury
to
a
Canadian
corporation
operating
in
Spain.
Synopsis
of
Rule
of
Law.
A
state
assumes
an
obligation
concerning
the
treatment
of
foreign
investments
based
on
general
international
law,
once
the
state
admits
foreign
investments
or
foreign
nationals
into
its
territory.
Facts.
On
behalf
of
Belgian
nationals
(P)
who
had
invested
in
a
Canadian
corporation,
Belgium
(P)
sued
Spain
(D)
on
the
premise
that
Spain
(D)
was
responsible
for
acts
in
violation
of
international
law
that
had
caused
injury
to
the
Canadian
corporation
and
its
Belgian
shareholders
(P).
Belgium
(P)
brought
an
action
for
damages
against
Spain
(D)
on
the
ground
that
its
nationals
as
shareholders
of
the
Barcelona
Traction
Co.,
incorporated
and
registered
in
Canada,
had
been
seriously
harmed
by
actions
of
Spain
(D)
resulting
in
expropriation.
-The
Barcelona
Traction,
Light,
and
Power
Co.
was
incorporated
and
registered
in
Canada
for
the
purpose
of
developing
and
operating
electrical
power
in
Spain
(D).
-After
the
Spanish
Civil
War,
the
company
was
declared
bankrupt
by
a
Spanish
court
and
its
assets
were
seized.
-After
the
Canadian
interposition
ceased,
Belgium
(P)
brought
an
action
for
damages
against
Spain
(D)
for
what
it
termed
expropriation
of
the
assets
of
the
Traction
Co.
on
the
ground
that
a
large
majority
of
the
stock
of
the
company
was
owned
by
Belgian
(P)
nationals.
-Spain
(D)
raised
the
preliminary
objection
that
Belgium
(P)
lacked
standing
to
bring
suit
for
damages
to
a
Canadian
company
Issue.
Does
a
state
assumes
an
obligation
concerning
the
treatment
of
foreign
investments
based
on
general
international
law,
once
the
state
admits
foreign
investments
or
foreign
nationals
into
its
territory?
Held.
Yes.
A
state
assumes
an
obligation
concerning
the
treatment
of
foreign
investments
based
on
general
international
law,
once
the
state
admits
foreign
investments
or
foreign
nationals
into
its
territory.
It
is
highly
imperative
to
draw
a
distinction
between
those
obligations
of
a
state
toward
the
international
community
as
a
whole
and
those
arising
from
the
field
of
diplomatic
protection.
It
is
only
the
party
to
whom
an
international
obligation
is
due
can
bring
a
claim
if
a
breach
of
an
obligation
that
is
the
subject
of
diplomatic
protection
occurs.
Discussion.
The
basic
right
of
all
human
persons
was
mentioned
by
the
Court
to
be
protected
against
slavery
and
racial
discrimination
as
deriving
from
basic
general
international
law.
Such
rights
may
derive
from
international
instruments
of
a
universal
or
quasi-universal
character.
Such
obligations
are
obligations
erga
omnes,
that
is,
all
states
have
a
legal
interest
in
their
protection.
ANOTHER
ISSUE:
Does
the
state
of
the
shareholders
of
a
company
have
a
right
of
diplomatic
protection
if
the
state
whose
responsibility
is
invoked
is
not
the
national
state
of
the
company?
Outcome:
No.
In
order
for
a
state
to
bring
a
claim
in
respect
of
the
breach
of
an
obligation
owed
to
it,
it
must
first
establish
its
right
to
do
so.
This
right
is
predicated
on
a
showing
that
the
defendant
state
has
broken
an
obligation
toward
the
national
state
in
respect
of
its
nationals.
In
the
present
case
it
is
therefore
essential
to
establish
whether
the
losses
allegedly
suffered
by
Belgian
(P)
shareholders
in
Barcelona
Traction
were
the
consequence
of
the
violation
of
obligations
of
which
they
are
beneficiaries.
-In
the
present
state
of
the
law,
the
protection
of
shareholders
requires
that
recourse
be
had
to
treaty
stipulations
or
special
agreements
directly
concluded
between
the
private
investor
and
the
state
in
which
the
investment
is
placed.
Barring
such
agreements,
the
obligation
owed
is
to
the
corporation,
and
only
the
state
of
incorporation
has
standing
to
bring
an
action
for
violations
of
such
an
obligation.
Nonetheless,
for
reasons
of
equity
a
theory
has
been
developed
to
the
effect
that
the
state
of
the
shareholders
has
a
right
of
diplomatic
protection
when
the
state
whose
responsibility
is
invoked
is
the
national
state
of
the
company.
This
theory,
however,
is
not
applicable
to
the
present
case,
since
Spain
(D)
is
not
the
national
state
of
Barcelona
Traction.
Barcelona
Traction
could
have
approached
its
national
state,
Canada,
to
ask
for
its
diplomatic
protection.
-For
the
above
reasons,
the
Court
is
of
the
opinion
that
Belgium
(P)
lacks
standing
to
bring
this
action.
Rule:
the
state
of
a
shareholders
corporation
has
a
right
of
diplomatic
protection
only
when
the
state
whose
responsibility
is
invoked
is
the
national
state
of
the
company.
Analysis:
The
Restatement
of
the
Foreign
Relations
Law
of
the
United
States.
185,
states
that
failure
of
a
state
to
pay
just
compensation
for
the
taking
of
the
property
of
an
alien
is
wrongful
under
international
law,
regardless
of
whether
the
taking
itself
is
conceived
as
wrongful.
Such
a
wrongful
taking
is
characterized
either
as
tortious
conduct
or
as
unjust
enrichment
.
BORIS
MEJOFF
VS
DIRECTOR
OF
PRISONS
90
Phil
70
Facts
Boris
Mejoff,
a
Russian,
was
captured
as
a
Japanese
spy
by
the
US
Army
Counter
Intelligence
Corps
on
March
18,
1948.
He
was
turned
over
to
the
Phil
Commonwealth
Government
for
appropriate
disposition.
His
case
was
decided
on
by
the
Board
of
Commissioners
of
Immigration
who
declared
him
as
an
illegal
alien.
The
Board
ordered
his
immediate
deportation.
In
the
meantime,
we
was
placed
in
prison
awaiting
the
ship
that
will
take
him
back
home
to
Russia.
Two
Russian
boats
have
been
requested
to
bring
him
back
to
Russia
but
the
masters
refused
as
they
had
no
authority
to
do
so.
Two
years
passed
and
Mejoff
is
still
under
detention
awaiting
the
ship
that
will
take
him
home.
This
case
is
a
petition
for
habeas
corpus.
However,
the
respondent
held
that
the
Mejoff
should
stay
in
temporary
detention
as
it
is
a
necessary
step
in
the
process
of
exclusion
or
expulsion
of
undesirable
aliens.
It
further
states
that
is
has
the
right
to
do
so
for
a
reasonable
length
of
time.
Issue
Whether
or
not
Mejoff
should
be
released
from
prison
awaiting
his
deportation.
Ruling
The
Supreme
Court
decided
that
Mejoff
be
released
from
custody
but
be
placed
under
reasonable
surveillance
of
the
immigration
authorities
to
insure
that
he
keep
peace
and
be
available
when
the
Government
is
ready
to
deport
him.
In
the
doctrine
of
incorporation,
the
Philippines
in
its
constitution
adopts
the
generally
accepted
principles
of
international
law
as
part
of
the
law
of
Nations.
Also,
the
Philippines
has
joined
the
United
Nations
in
its
Resolution
entitled
Universal
Declaration
of
Human
Rights
in
proclaiming
that
life
and
liberty
and
all
other
fundamental
rights
shall
be
applied
to
all
human
beings.
The
contention
that
he
remains
a
threat
of
to
the
security
of
the
country
is
unfounded
as
Japan
and
the
US
or
the
Phils
are
no
longer
at
war.