Kuroda vs.

Jalandoni
EO 68, establishing a national War Crimes Office,
prescribing rules and regulations governing the trial of
accused war criminals.
In accordance with the generally accepted principle
of international law that all those persons military or
civilian, who have been guilty of planning, preparing or
waging a war of aggression and of the commission of
crimes and offenses consequential and incidental
thereto in violation of the laws and customs of war, of
humanity and civilization, are held accountable therefor.
The promulgation of the EO is an exercise of the
Presidents power as commander-in-chief of all our
armed forces.
Re: Philippines is not a signatory of the Hague and
Geneva conventions It cannot be denied that the
rules and regulation of the Hague and Geneva
Conventions form, part of and are wholly based on the
generally accepted principles of international law. In
fact, these rules and principles were accepted by the 2
belligerent nations, the US and Japan, who were
signatories of the 2 conventions. Such rule and
principles, therefore, form part of the law of our nation
even if the Philippines was not a signatory to the
conventions embodying them for our Constitution has

been deliberately general and extensive in its scope

and is not confined to the recognition of rule and
principle of international law as continued in treaties to
which our govt may have been or shall be a signatory.
Crimes were committed when PH was still under the
sovereignty of US. Our sovereignty as a free state
entitles us to enforce the right on our own of trying and
punishing those who committed crimes against our
people.
Laurel vs. Misa: The change of our form of
government from Commonwealth to Republic does not
affect the prosecution of those charged with the crime
of treason committed during then Commonwealth
because it is an offense against the same sovereign
people.
Manuel Roxas; Judge Advocate General; within
ththete office of the Judge Advocate General of the
Army of the Philippines; maintained direct liaison with
the Legal Section General Headquarters, Supreme
Commander for the Allied Power (MacArthur)
PERFECTO DISSENTING
Enactment of EO 68 constituted usurpation of
legislative power. Respondents argued that it was in

the exercise of the Presidents emergency powers

granted by CA 600, 620, and 671. These CAs
cannot be validly invoked. EO was issued on July 29,
1947. Said acts had elapsed upon the liberation of the
Philippines from the Japanese forces or at the latest,
when the surrender of Japan was signed in Tokyo on
Sept. 2, 1945.
It has never been the purpose of the National
Assembly, in enacting the CAs, to extend the
delegation beyond the emergency created by the war
as to extend it farther would be violative of the express
provision of the Constitution.
EO is equally offensive to the Constitution because it
violated the fundamental guarantees of the due
process and equal protection of the law. It is especially
so, because it permits the admission of many kinds of
evidence by which no innocent person can afford to get
acquittal and by which it is impossible to determine
whether an accused is guilty or not beyond all
reasonable doubt. (e.g. V.d.5. All purposed
confessions or statements of the accused shall be
admissible in evidence without any showing that they
were voluntarily made)
Yamashita vs. Styer

Tomoyuki Yamashita, commanding general of the 14th

army group of the Japanese Imperial Army, was
charged before the American Military Commission,
despite surrendering as a prisoner of war. The petition
(habeas corpus and prohibition) at bar contends that
the Military Commission does not have jurisdiction, and
that Yamashitas status should be converted back as a
prisoner of war. SC decided that the Military
Commission has jurisdiction because there was still a
state of war.
Kookooritchkin vs. SolGen
Kookoorictchkin filed a petition for naturalization.
The hearing was set on December 18, but the province
was invaded by Japanese forces on December 14, and
the case remained pending until the records were
destroyed during the military operations for liberation in
March 1945. The case was reconstituted, and the
petition granted.
Invoked CA 473, as amended by Act 535
Native-born Russian. Refused to join the Bolshevik
regime. Became Guerilla officer. Married to Filipina,
Concepcion Segovia.
Denounced Soviet Russia.
SolGen questions the granting of his petition.

 No documentary or testimonial evidence was

introduced to establish the fact that appellee had been
lawfully admitted into the Philippines for permanent
residence.
Attachment of certificate of arrival is essential to
the validity of a declaration.
The undisputed fact that the petitioner has been
continuously residing in the Philippines for about 25
years, without having been molested by the authorities,
who are presumed to have been regularly performing
their duties and would have arrested petitioner if his
residence is illega, can be taken as evidence that he is
enjoying permanent residence legally.
Petitioner has failed to show that under the laws
of Russia, appellee has lost his Russian citizenship and
failed to show that Russia grants to Filipinos the right to
become a naturalized citizen therof. The controversy
centers on the question as the W/N petitioner is a
Russian citizen or is stateless.
Kookooritchkin, as a stateless citizen, is also
entitled to naturalization. (We do not do harsh things to
each other). Appellee's testimony, besides being
uncontradicted, is supported by the wellknown fact that
the ruthlessness of modern dictatorship has scattered
throughout the world a large number of stateless
refugees or displaced persons, without country and
without flag. The tyrannical intolerance of said

dictatorships toward all opposition induced them to

resort to beastly oppression, concentration camps and
blood purges, and it is only natural that the notso
fortunate ones who were able to escape to foreign
countries should feel the loss of all bonds of attachment
to the hells which were formerly their fatherland's.
Petitioner belongs to that group of stateless refugees.
Nicaragua vs. US

Colombia vs. Peru

Colombia unilaterally decided to grant asylum to a
leader of the military rebellion in Peru.
Colombia cannot invoke the Havana Convention on
Asylum of 1928 (Does not contain any provision
conferring on the State granting asylum a unilateral
competence to qualify the offence with definitive and
binding force for the territorial state) and the
Montevideo Convention on Political Asylum of 1933
(not ratified by Peru, thus cannot invoked against it)
Conditions to grant asylum:
1. It can be granted only to political offenders who are
not accused or condemned for common crimes and
only in urgent cases and for the time strictly
indispensable for the safety of the refugee.

2. Article 2, Havana Convention: The government of the

State may require that the refugee be sent out of the
national territory within the shortest time possible; and
the diplomatic agent of the country who has granted
asylum may in turn require the guarantees necessary
for the departure of the refugee from the country with
due regard to the inviolability of his person. > Peru
had not demanded the departure of the refugee and
was therefore not bound to deliver a safe conduct.
Was Haya Dela Torre accused of a common crime?
No. Military rebellion is not a common crime.
It had not been contended by the Government of
Colombia that De la Torre was in such a situation at the
time when he sought refuge in the Colombian Embassy
in Lima > No violent and disorderly action of
irresponsible sections of the population. 3 months had
already elapsed since the military rebellion.
Safety The refugee is protected against arbitrary
action by the government, and that he enjoys the
benefits of the law.
New Zealand vs. France
France carried out atmospheric tests of nuclear
devices. These tests have cause some fallout on the

New Zealand territory.

According to France, the radioactive matter
produced by its tests have been so infinitesimal that
any fall out would not be a danger to the health of the
population of New Zealand. France did not want to
submit to the ICJs jurisdiction, but the ICJ granted
interim measures to protect New Zealand. Despite this,
France continued the tests and New Zealand recorded
another 2 fall outs.
ICJ has inherent jurisdiction. It is derived from its
mere existence as a judicial organ established by the
consent of the States, and is conferred upon it in order
that its basic judicial functions may be safeguarded.
Declarations made by way of unilateral acts,
concerning legal or factual situations, may have the
effect of creating legal obligations. When it is the
intention of the State making the declaration that it
should become bound according to its terms, that
intention confers on the declaration the character of a
legal undertaking, the State being thenceforth legally
required to follow a course of conduct consistent with
the declaration. An undertaking of this kind, if
publicly given, and with the intent to be bound,
even though not made within the context of
international negotiations, is binding.

 The intention to be bound is to be ascertained by

interpretation of the act.
Just as the very rule of pacta sunt servanda in the
law of treaties is based on good faith, so also is the
binding character of an international obligation
assumed by unilateral declaration.
In announcing the 1974 series of atmospheric tests
would be the last, France conveyed to the world at
large its intention effectively to terminate these tests. It
was bound to assume that other States might take note
of these statements and rely on their being effective.
Australia vs. France
Declarations made by states, oral or written, are
legal obligations.
Legality of the Use of Nuclear Weapons
The Paquete Habana
Capture of the fishing smacks and taking the fish
they captured as prize of war, were unlawful and
without probable cause.

Right of Passage (Portugal vs. India)

Portugal did not have the right of passage in respect
of armed forces, armed police, and arms and
ammunition.
India had not acted contrary to its obligations
resulting from Portugals right of passage in respect of
private persons, civil officials, and goods in general.
When the British became the sovereign in India,
Portuguese sovereignty was tacitly recognized in those
areas.
With regard to private persons, civil officials, and
goods in general, there existed during the British and
post-British periods a constant and uniform practice
allowing free passage between Daman and enclaves.
That that practice was accepted as law by the parties
and has given rise to a right and correlative obligation,
India has to grant a qualified right of passage to the
alleged territories of Portugal.
Prosecutor vs. Tadic
International humanitarian law governs the conduct
of both international and internal armed conflicts.
(ARTICLE 5)

 It is now a settle rule of customary international

law that crimes against humanity do not require a
connection to international armed conflict. IF so, the
Security Council may have defined the crime in Article
5 more narrowly than necessary under customary
international law.
Armed conflict exists whenever there is a resort to
armed force between States or protracted armed
violence between governmental authorities and
organized armed groups or between such groups within
a State. (As seen in Article 3)
Conditions for Article 3 to apply:
1. Violation must constitute an infringement of a rule of
international humanitarian law
2. Rule must be customary in nature
3. Violation must be serious
4. Violation of the rule must entail, under customary or
conventional law, the individual criminal responsibility of
the person breaching the rule.
Salonga vs. Executive Secretary
Established by treaty
Romulo-Kenney agreement not valid because it was

inconsistent with the VFA. VFA is constitutional

because it is a self-executing agreement, as it only
intended to carry out the obligations and undertakings
under the RP-US Mutual Defense Treaty.
Medellin vs. Texas
When the President asserts the power to enforce a
non-self-executing treaty by unilaterally creating
domestic law, he acts in conflict with the implicit
understanding of the ratifying Senate. The non-selfexecuting character of the treaty constrains the
Presidents ability to comply with treaty commitments
by unilaterally making the treaty binding on domestic
courts.
Due to the absence of any legislation regarding
these treaties and the lack of any contention that no
legislation exists, the SC concludes that the Avena
judgment is not automatically binding domestic law.
The general rule is that judgment of foreign courts
awarding injunctive relief , even as to private parties, let
alone sovereign states, are not generally entitled to
enforcement.
While treaties may comprise international
commitments, they are not domestic law unless
Congress enacted implementing rules or the treaty is

self-executing.
Texaco vs. Libya
L
Doctrine of specifically affected states.

Libya promulgated decrees purporting to nationalize all

of the rights, interests and property of Texaco in Libya
granted to them jointly under 14 Deeds of Concession.
The Companies objected to the decrees and claimed
that such action by the Libyan Government violated the
terms and conditions of their Deeds of Concession. The
Companies requested arbitration. The Sole Arbitrator
held that (a) the Deeds of Concession are binding on
the parties, (b) by adopting the measures of
nationalization, the Libyan Government breached its
obligations arising under the Deeds of Concession and
(c) the Libyan Government is legally bound to perform
the Deeds of Concession and to give them their full
force and effect. Libya argues that with respect to
nationalization, municipal law should govern and not
international law. Several UN G.A. resolutions were
invoked by both parties. Thus the court had to look into
the legal value and validity of such resolutions and their
binding effect to the parties.

Legal value of resolutions to be determined on the

basis of the circumstances under which they were
adopted & analysis of the principles they state. The
legal value of the resolutions which are relevant to the
present case can be determined on the basis of
circumstances under which they were adopted (ex.
voting pattern) and by analysis of the principles which
they state.
Resolutions in order to be binding must be accepted by
the members especially those specially affected. With
respect to the first point, the absence of any binding
force of the resolutions of the General Assembly of the
United Nations implies that such resolutions must be
accepted by the members of the United Nations in
order to be legally binding. In this respect, the Tribunal
notes that only Resolution 1803 (XVII) of 14 December
1962 was supported by a majority of Member States
representing all of the various groups. By contrast, the
other Resolutions mentioned, and in particular those
referred to in the Libyan Memorandum, were supported
by a majority of States but not by any of the developed
countries with market economies which carry on the
largest part of international trade.
Distinguish between those stating an existing right &
those introducing new principles. The appraisal of the

legal value on the basis of the principles stated, it

appears essential to this Tribunal to distinguish
between those provisions stating the existence of a
right on which the generality of the States has
expressed agreement and those provisions introducing
new principles which were rejected by certain
representative groups of States and having nothing
more than a de lege ferenda (what the law ought to be);
value only in the eyes of the States which have
adopted them; as far as the others are concerned, the
rejection of these same principles implies that they
consider them as being contra legem (against the law).
With respect to the former, which proclaim rules
recognized by the community of nations, they do not
create a custom but confirm one by formulating it and
specifying its scope, thereby making it possible to
determine whether or not one is confronted with a legal
rule. As has been noted by Ambassador Castaneda,
"[such resolutions] do not create the law; they have a
declaratory nature of noting what does exist"
Resolution 1803 reflects the state of customary law
based on adoption of majority of states & opinio juris.
On the basis of the circumstances of adoption
mentioned above and by expressing an opinio juris
communis, Resolution 1803 (XVII) seems to this
Tribunal to reflect the state of customary law existing in
this field. Indeed, on the occasion of the vote on a

resolution finding the existence of a customary rule, the

States concerned clearly express their views. The
consensus by a majority of States belonging to the
various
representative groups indicates without the slightest
doubt universal recognition of the rules therein
incorporated, i.e., with respect to nationalization and
compensation the use of the rules in force in the
nationalizing State, but all this in conformity with
international law.
Cambodia vs. Thailand
Who has sovereignty over the region of the Temple
of Preah Vihear. It is an ancient sanctuary and shrine
located on the borders of Thailand and Cambodia. It
stands on a high land, belonging to the eastern sector
of the Dangrek range of mountains that constitutes the
boundary between the two countries Cambodia to
the south and Thailand to the north.
In dependence was granted to Cambodia in 1953.
Before that date, she was part of the French IndoChina. As such, her foreign relations were by France.
The present dispute originated in the boundary
settlements made in the period from 1904 to 1908,
between France and Siam.

 It is clear from the record that the publication and

communication of the 11 maps referred to earlier,
including the subject map, was given wide publicity.
The map was communicated to the Siamese
government. They did not do so, either then or for
many years, and thereby must be held to have
acquiesced. (Merely adopted a passive attitude)
(Unaware of the error) Plea of error cannot be
allowed as an element vitiating consent if the party
advancing it contributed by its own conduct to the error,
or could have avoided it, or if the circumstances were
such as to put that party on notice of possible error
The Siamese authorities knew it was the work of
French topographical officers to whom they had
themselves entrusted the work of producing the maps.
They accepted it without any independent investigation,
and cannot therefore now plead any error vitiating the
reality of their consent.
When the Prince arrived there, he was officially
received there by the French Resident for the adjoining
Cambodian province, on behalf of the Resident
Superior, with the French flag flying. The prince could
not possibly have failed to see the implications of a
reception of this character.

 This case demonstrates that the signing of the

map by Thai officials is a positive act that
constituted estoppel. The temple is situated in
territory under the sovereignty of Cambodia.
Corfu Channel
Albanian ships fired at Royal Navy Ships (UK) while
the latter was crossing the Corfu Channel after they
had conducted an inspection of the area.
Another two ships of the UK struck mines and
sustained damages.
UK claims that the mines were placed by Albania.
The Albanian Government constantly kept close
watch over the waters of the North Corfu Channel;
Albanian Government never noticed anyone about the
mines in its waters; had look outs. > COURT: The
laying of the minefield could not have been
accomplished without the knowledge of the Albanian
government.
The Albanian Government had the obligation to warn
ships about the mines, based on: (1) elementary
considerations of humanity, (2) principle of the freedom
of maritime communication, and (3) every states

obligation not to allow knowingly its territory to be used

for acts contrary to the rights of other states.
Sovereignty over the Corfu Channel: the ICJ
declared that the Corfu Channel was an international
highway therefore Albania can only regulate the
passage of war ships and not prohibit them altogether.
The sovereignty of Albania was not violated.
The ICJ ruled that the mine-clearing operations
conducted by the Royal Navy Ships was illegal
because it was unauthorized by the Albanian
Government.
UK failed to respect territorial sovereignty in
international relations when it conducted the mineclearing operations as it was executed contrary to the
consent of the Albanian government, not consented by
the international mine clearance organization, and it
was not an innocent passage by the Royal Navy
Ships.
TAKE NOTE OF THE 3 INCIDENTS (Albania is
responsible for the 2nd incident, UK did not violate
sovereignty during the 1st, UK violated sovereignty
during the 3rd)
Chorzow Factory

 The German empire had a contract with a company,

where the company undertook to establish for the
Reich and forthwith to begin the construction of a
nitrate factory at Chorzow, Upper Silesia.
Subsequently, Poland and Germany signed a
Convention concerning the Upper Silesia of Geneva
(Geneva Convention). A Polish was then delegated with
the full powers to take charge of the factory, thus,
causing the end of the contract between Germany and
the companies. Germany brought action in behalf of the
companies against Poland for the taking of the
companies in violation of the Geneva Conventions.
States espousal of claims on behalf of its nationals.
International law does not prevent one State from
granting to another the right to have recourse to
international arbitral tribunals in order to obtain the
direct award to nationals of the latter State of
compensation for damage suffered by them as a result
of infractions of international law by the first State.
Reparation = indemnity for damages caused. It is a
principle of international law that the reparation of a
wrong may consist in an indemnity corresponding to
the damage which the nationals of the injured State
have suffered as a result of the act which is contrary to
international law.

In estimating the damage caused by an unlawful act,

only the value of property, rights and interests which
have been affected and the owner of which is the
person on whose behalf compensation is claimed, or
the damage done to whom is to serve as a means of
gauging the reparation claimed, must be taken into
account. The damage suffered is equivalent to the total
value - but to that total only - of the property, rights and
interests of this Company in that undertaking, without
deducting liabilities.
The reparation due by one State to another does not
however change its character by reason of the fact that
it takes the form of an indemnity for the calculation of
which the damage suffered by a private person is taken
as the measure. The rules of law governing the
reparation are the rules of international law in force
between the two States concerned, and not the law
governing relations between the State which has
committed a wrongful act and the individual who has
suffered damage. The damage suffered by an
individual is never therefore identical in kind with that
which will be suffered by a State; it can only afford a
convenient scale for the calculation of the reparation
due to the State.
Reparation, defined. The essential principle contained
in the actual notion of an illegal act - a principle which

seems to be established by international practice and in

particular by the decisions of arbitral tribunals - is that
reparation must, as far as possible, wipe-out all the
consequences of the illegal act and re-establish the
situation which would, in all probability, have existed if
that act had not been committed.
When restitution not possible, then reparation.
Restitution in kind, or if this is not possible, payment of
a sum corresponding to the value which a restitution in
kind would bear; the award, if need be, of damages for
loss sustained which would not be covered by
restitution in kind or payment in place of it - such are
the principles which should serve to determine the
amount of compensation due for an act contrary to
international law.
Reparation, as applied in this case. This conclusion
particularly applies as regards the Geneva Convention,
the object of which is to provide for the maintenance of
economic life in Upper Silesia on the basis of respect
for the status quo. The dispossession of an industrial
undertaking (which is prohibited by the Geneva
Convention) then involves the obligation to restore the
undertaking and, if this be not possible, to pay its value
at the time of the indemnification, which value is
designed to take the place of restitution which has
become impossible. To this obligation, in virtue of the

general principles of international law, must be added

that of compensating loss sustained as the result of the
seizure. The impossibility of restoring the Chorzw
factory could therefore have no other effect but that of
substituting payment of the value of the undertaking for
restitution; it would not be in conformity with the

principles of law or with the wish of the Parties to

infer from that agreement that the question of
compensation must henceforth be dealt with as though an
expropriation properly so called was involved.
(Some notes on the case from BP v. Libya: The
Chorzow Factory case is the leading case on the
proposition that restitutio in integrum restoration
to original condition is a recognized remedy of
International Law. However, the judgment is not
authority on the point, for the Claimant (the German
Government) did not claim restitutio in integrum, and
anything the Court stated on the availability of that
remedy is obiter.)
Barcelona Traction, Light and Power Company
- That a corporation has a juridical personality distinct
from its shareholders is a general principle of law.
[Case was about corporate personalities (Canada) vs.
shareholders (Belgium) Belgium has no jus standi]

- Where one of the parties involved is a municipal

entity, such as a CORPORATION, reference may be
made to relevant principles of municipal law. Evidence
is also part of international law.
The BTLPC, was incorporated in Toronto (Canada) for
the purpose of creating and developing an electric
power production and distribution system in Catalonia
(Spain). It formed a number of subsidiary companies, of
which some had their registered offices in Canada and
the others in Spain. Some years after the first world war
Barcelona Traction share capital came to be very
largely held by Belgian nationals. The servicing of the
Barcelona Traction bonds was suspended on account
of the Spanish civil war. After that war the Spanish
exchange control authorities refused to authorize the
transfer of the foreign currency necessary for the
resumption of the servicing of the sterling bonds.
Eventually, the company was declared bankrupt.
Belgium filed an application with the ICJ against the
Spanish government seeking reparation of damages
claimed to have been caused to the Belgian national
shareholders of the company.
Municipal law applied to international law. In the field of
diplomatic protection, international law was in
continuous evolution and was called upon to recognize
institutions of municipal law. In municipal law, the

concept of the company was founded on a firm

distinction between the rights of the company and
those of the shareholder. Only the company, which was
endowed with legal personality, could take action in
respect of matters that were of a corporate character. A
wrong done to the company frequently caused
prejudice to its shareholders, but this did not imply that
both were entitled to claim compensation. Whenever a
shareholder's interests were harmed by an act done to
the company, it was to the latter that he had to look to
institute appropriate action. An act infringing only the
company's rights did not involve responsibility towards
the shareholders, even if their interests were affected.
In order for the situation to be different, the act
complained of must be aimed at the direct rights of the
shareholder as such (which was not the case here
since the Belgian Government had itself admitted that it
had not based its claim on an infringement of the direct
rights of the shareholders).
General Rule: State of the company can seek redress.
International law had to refer to those rules generally
accepted by municipal legal systems. An injury to the
shareholder's interests resulting from an injury to the
rights of the company was insufficient to found a claim.
Where it was a question of an unlawful act committed
against a company representing foreign capital, the
general rule of international law authorized the national

State of the company alone to exercise diplomatic

protection for the purpose of seeking redress. No rule
of international law expressly conferred such a right on
the shareholder's national State.
Exceptional circumstances. The Court considered
whether there might not be, in the present case, special
circumstances for which the general rule might not take
effect. Two situations needed to be studied: (a) the
case of the company having ceased to exist, and (b)
the case of the protecting State of the company lacking
capacity to take action.
As regards the first of these possibilities, the Court
observed that whilst Barcelona Traction had lost all its
assets in Spain and been placed in receivership in
Canada, it could not be contended that the corporate
entity of the company had ceased to exist or that it had
lost its capacity to take corporate action. So far as the
second possibility was concerned, it was not disputed
that the company had been incorporated in Canada
and had its registered office in that country, and its
Canadian nationality had received general recognition.
The Canadian Government had exercised the
protection of Barcelona Traction for a number of years.
If at a certain point the Canadian Government ceased
to act on behalf of Barcelona Traction, it nonetheless
retained its capacity to do so, which the Spanish

Government had not questioned. Whatever the reasons

for the Canadian Government's change of attitude, that
fact could not constitute a justification for the exercise
of diplomatic protection by another government.
It had been maintained that a State could make a claim
when investments by its nationals abroad, such
investments being part of a State's national economic
resources, were prejudicially affected in violation of the
right of the State itself to have its nationals enjoy a
certain treatment. But, in the present state of affairs,
such a right could only result from a treaty or special
agreement. And no instrument of such a kind was in
force between Belgium and Spain.
BP vs. Libya
Also looked into the voting patterns to determine the
binding effect of the GA resolution.
Specific performance doctrine was not applicable in
this case.
BP Exploration Company (BP) had a contractual
agreement with the Government of Libya (Libya), which
allowed BP to operate in Libya for the extraction,
processing and export of petroleum. The area in which
BP was allowed to operate was called Concession 65.
However, Libya, in December 1971 passed the BP

Nationalization Law, which nationalized the operations

of BP in Concession 65, restoring to the State
ownership of all properties, rights, assets and shares in
the operations conducted in the said area, and then
transferring these to a new company, the Arabian Gulf
Exploration Company. As a result of the Nationalization
Law (which was rapidly implemented) BPs operations
in Concession 65 were brought to a complete halt and
its staff were immediately excluded from the premises
and facilities. The Arabian Gulf Exploration Company
had taken over Concession 65.
Applicable law in the case. Clause 28 of the concession
agreement provides that should dispute arise, the
applicable law shall be the principles of the law of Libya
common to the principles of international law, and only
if such common principles do not exist with respect to a
particular matter, will resort be made to general
principles of law. In the event that international law and
Libyan law conflict on the issue, general principles of
law should apply to resolve the question.
The governing system of law is what the clause
expressly provides, that in the absence of principles
common to the Libyan and International law, general
principles of law, including those that may have been
applied by international tribunals, should apply.
Specific Performance not applicable here. In the

decisions of tribunals, while arbitral tribunals can

declare awards which include the declaration of specific
performance against a recalcitrant party, their powers
and jurisdiction to do so rest carefully on the parties
consent. Examined in the light of general principles of
law, the legal systems analyzed here offer different
solutions to the problem. Thus these municipal systems
of law profess allegiance to two divergent principles on
the question. It is therefore NOT POSSIBLE to hold
that under general principles of law an agreement
fundamentally abrogated by one party continues in
force and is to be specifically performed indefinitely
until the innocent party terminates it, for under English
and American law the sole remedy is damages and in
others specific performance does not lie against the
State.
It is clear then, that there does not exist a uniform
general principle of law that an agreement continues in
effect after being repudiated by one party but not the
other, and there is no uniform principle which provides
that specific performance is a remedy available at the
option of an innocent party.
Restitutio in integrum not applicable again. As to
restitutio in integrum, while it has been claimed,
especially in the form of physical restoration, no tribunal
has ever prescribed the remedy with regard to such

property or parties as in these proceedings. The

concept has rather been employed at times as a
principle for assessing the amount of damages due for
breach of an international obligation.
The impossibility of restitution and specific
performance. The claim would not even be realistic;
such an action, which has the effect of turning back the
clock would upset the current situation too profoundly
and would have unforeseeable practical consequences.
Furthermore, if awarded now and the contract would
still be allowed to exist indefinitely, the amount would
be so great it would be absurd.
A rule of reason therefore dictates a result which
conforms to international law, evidenced by state
practice and the law of treaties, and to governing
principles of English and American contract law. The
conclusion is thus: when by exercise of sovereign
power a State committed a fundamental breach of a
concession agreement by repudiating it through a
nationalization of the enterprise and its assets in a
manner which implies finality, the concessionaire is not
entitled to call for specific performance by the
Government of the agreement and reinstatement of his
contractual rights, but his sole remedy is an action for
damages.
Payment of Damages. Under Public International Law,

the norm is the payment of damages. Under the

applicable systems of law, BP is entitled to damages
arising from Libyas wrongful acts. The principle of
compensation is also recognized in the BP
Nationalization Law.
Saudi Arabia vs. Arabian Oil
The government of SA made a concession
agreement with ARAMCO, which includes the
exclusive right to transport oil which it had
extracted from its concession area in Saudi Arabia.
Subsequently, Saudi Arabia concluded another
concession agreement with Mr. Onassis and his
company (Saudi Arabian Maritime Tankers) which
gave the latter a 30-year right of priority for the
transport of Saudi Arabian oil.
Determine what rights were conferred on the oil
company by the Aramco concession agreement
exclusive right of transportation by sea was not
included within the expectations of parties.
Aramco has exclusive right to:
1. Search for petroleum
2. Extract oil
3. Refine petroleum and produce its derivatives
4. Transport petroleum, sell it abroad, and dispose of it

commercially.
To transport means to carry from one place to
another persons or things. It can apply to land, water,
or sea transport.
Principles of interpretation:
1. Interpretation by circumstantial evidence
2. Teleological interpretation of the contract
3. Restrictive interpretation
4. Rule contra preferentum (Contract of adhesion)
The principle of acquired rights is one of the
fundamental principles both of public international law
and of the municipal law of most civilized states.
Decision: Aramco enjoys exclusive rights these
rights cannot be taken away from it by the government
by means of a contract concluded with a second
concessionaire, even if that contract wereequal to its
own contract from a legal point of view.