CASE DIEGST IN PUBLIC INTERNATIONAL LAW

had directed his attention to that class of his subjects which devoted itself to the trade of
fishing, and had no other means of livelihood; that he had thought that the example which he

The

Paquete

Habana

677

should give to his enemies, would determine them to allow to fishermen the same facilities

5th

which he should consent to grant; and that he had therefore given orders to the commanders

1900

of all his ships not to disturb English fishermen, nor to arrest their vessels laden with fresh

Facts: Two fishing vessels that were fishing out of Havana, Cuba, sailed under a Spanish flag

fish, provided they had no offensive arms, and were not proved to have made any signals

were fishing off the Cuba coast. They were owned a Spanish subject that was born in Cuba

creating a suspicion of intelligence with the enemy; and the admiral was directed to

and living in Havana. The vessels were commanded by a subject of Spain, also residing in

communicate

Havana. Their cargo consisted of fresh fish, caught by their crew. The fish were kept alive to

Among the standing orders made by Sir James Marriott, Judge of the English High Court of

be sold alive. Until stopped by the blockading squadron they had no knowledge of the

Admiralty, was one of April 11, 1780, by which it was ordered that all causes of prize of

existence of the war or of any blockade. She had no arms or ammunition on board, and made

fishing boats or vessels taken from the enemy may be consolidated in one monition, and one

no attempt to run the blockade after she knew of its existence, nor any resistance at the time of

sentence or interlocutory, if under 50 tons burthen, and not more than 6 in number. But by the

the

capture.

statements of his successor, and of both French and English writers, it apears that England, as

Procedural History: DC for the Southern District of Florida condemned the two fishing

well as France, during the American Revolutionary War, abstained from interfering with the

vessels

coast

Keyed
Status:

Case

Brief

to
Supreme

and

U.S.

Damrosch

Court

their

175

of

cargos

the

United

as

States,

prizes

of

war.

the

Kings

intentions

to

all

officers

under

his

control.

fisheries.

Issues: Whether a court may look to established rules of other nations when their own nation

In the treaty of 1785 between the United States and Prussia, provided that, if war should arise

lacks any treaty, legislation, proclamation, or instruction that is on point for a particular

between the contracting parties, all women and children, scholars of every faculty, cultivators

matter?

of the earth, artisans, manufacturers, and fishermen, unarmed and inhabiting unfortified

Analysis: By an ancient usage among civilized nations, beginning centuries ago, and

towns, villages, or places, and in general all others whose occupations are for the common

gradually ripening into a rule of international law, coast fishing vessels, pursuing their

subsistence and benefit of mankind, shall be allowed to continue their respective

vocation of catching and bringing in fresh fish, have been recognized as exempt, with their

employments, and shall not be molested in their persons, nor shall their houses or goods be

cargoes

war.

burnt or otherwise destroyed, nor their fields wasted by the armed force of the enemy, into

In 1403 and 1406 Henry IV ordered that fisherman of foreign nations become under his

whose power, by the events of war, they may happen to fall; but if anything is necessary to be

special protection so that the fisherman in the course of their duty would not be hindered,

taken from them for the use of such armed force, the same shall be paid for at a reasonable

interfered,

subjects.

price. Here was the clearest exemption from hostile molestation or seizure of the persons,

The doctrine which exempts coast fishermen, with their vessels and cargoes, from capture as

occupations, houses, and goods of unarmed fishermen inhabiting unfortified places.

prize of war, has been familiar to the United States from the time of the War of Independence.

Wheatons International Laws, says: In many treaties and decrees, fishermen catching fish as

On June 5, 1779, Louis XVI., our ally in that war, addressed a letter to his admiral, informing

an article of food are added to the class of persons whose occupation is not to be disturbed in

him that the wish he had always had of alleviating, as far as he could, the hardships of war,

war.

and

crews,

or

molested

from

capture

by

any

as

prize

of

his

of

The English government, soon afterwards, more than once unqualifiedly prohibited the

substitute, in any case, their authority for the principles of reason, it may be affirmed that they

molestation of fishing vessels employed in catching and bringing to market fresh fish. On

are generally impartial in their judgment. They are witnesses of the sentiments and usages of

May 23, 1806, it was ordered in council that all fishing vessels under Prussian and other

civilized nations, and the weight of their testimony increases every time that their authority is

colors, and engaged for the purpose of catching fish and conveying them fresh to market, with

invoked by statesmen, and every year that passes without the rules laid down in their works

their crews, cargoes, and stores, shall not be molested on their fishing voyages and bringing

being

the

market.

Chancellor Kent says: In the absence of higher and more authoritative sanctions, the

In the war with Mexico, in 1846, the United States recognized the exemption of coast fishing

ordinances of foreign states, the opinions of eminent statesmen, and the writings of

boats from capture. It appears that Commodore Conner, commanding the Home Squadron

distinguished jurists, are regarded as of great consideration on questions not settled by

blockading the east coast of Mexico, on May 14, 1846, wrote a letter to Mr. Bancroft, the

conventional law. In cases where the principal jurists agree, the presumption will be very

Secretary of the Navy, inclosing a copy of the commodores instructions to the commanders

great in favor of the solidity of their maxims; and no civilized nation that does not arrogantly

of the vessels of the Home Squadron, showing the principles to be observed in the blockade of

set all ordinary law and justice at defiance will venture to disregard the uniform sense of the

the Mexican ports, one of which was that Mexican boats engaged in fishing on any part of

established

the coast will be allowed to pursue their labors unmolested; and that on June 10, 1846, those

This review of the precedents and authorities on the subject appears to us abundantly to

instructions

Department.

demonstrate that at the present day, by the general consent of the civilized nations of the

In the treaty of peace between the United States and Mexico, in 1848, were inserted the very

world, and independently of any express treaty or other public act, it is an established rule of

words of the earlier treaties with Prussia, already quoted, forbidding the hostile molestation or

international law, founded on considerations of humanity to a poor and industrious order of

seizure in time of war of the persons, occupations, houses, or goods of fishermen.

men, and of the mutual convenience of belligerent states, that coast fishing vessels, with their

France in the Crimean war in 1854, and in her wars with Italy in 1859 and with Germany in

implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful

1870, by general orders, forbade her cruisers to trouble the coast fisheries, or to seize any

calling of catching and bringing in fresh fish, are exempt from capture as prize of war.

vessel or boat engaged therein, unless naval or military operations should make it necessary.

This rule of international law is one which prize courts administering the law of nations are

Since the English orders in council of 1806 and 1810, before quoted, in favor of fishing

bound to take judicial notice of, and to give effect to, in the absence of any treaty or other

vessels employed in catching and bringing to market fresh fish, no instance has been found in

public

which the exemption from capture of private coast fishing vessels honestly pursuing their

Holding:

peaceful industry has been denied by England or by any other nation. And the Empire of

Judgment: Ordered, that the decree of the District Court be reversed, and the proceeds of the

Japan by an ordinance promulgated at the beginning of its war with China in August, 1894,

sale of the vessel, together with the proceeds of any sale of her cargo, be restored to the

established prize courts, and ordained that the following enemys vessels are exempt from

claimant,

detention, including in the exemption boats engaged in coast fisheries, as well as ships

Rule: A court may look to established rules of other nations when their own nation lacks any

engaged exclusively on a voyage of scientific discovery, philanthrophy, or religious mission.

treaty, legislation, proclamation, or instruction that is on point for a particular matter.

Wheaton observes: Without wishing to exaggerate the importance of these writers, or to

Where there is no treaty and no controlling executive or legislative act or judicial decision,

same

were

approved

to

by

the

Navy

impugned

act

by

the

writers

of

their

avowal

of

on

own

government

contrary

principles.

international

in

relation

to

law.

the

matter.
Yes

with

damages

and

costs.

resort must be had to the customs and usages of civilized nations, and, as evidence of these, to

successors of the Marathas, themselves claim sovereignty, nor did they accord express

the works of jurists and commentators who by years of labor, research, and experience have

recognition of Portuguese sovereignty, over them. The exclusive authority of the Portuguese

made themselves peculiarly well acquainted with the subjects of which they treat.

over the villages was never brought in question. Thus Portuguese sovereignty over the

Dissent or Concurrence: Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan

villages was recognized by the British in fact and by implication and-was subsequently

and

recognized by India. As a consequence the villages comprised in the Maratha grant acquired

Mr.

Justice

McKenna,

dissenting:

The district court held these vessels and their cargoes liable because not satisfied that as a

the

character

of

Portuguese

enclaves

within

Indian

territory.17

matter of law, without any ordinance, treaty, or proclamation, fishing vessels of this class are

23. Concerning the right of passage, the Court reached the conclusion that:

exempt from seizure. This court holds otherwise, not because such exemption is to be found

. . . with regard to private persons, civil officials and goods in general there existed during

in any treaty, legislation, proclamation, or instruction granting it, but on the ground that the

the British and post-British periods a constant and uniform practice allowing free passage

vessels were exempt by reason of an established rule of international law applicable to them,

between Daman and the enclaves. This practice having continued over a period extending

which it is the duty of the court to enforce.

beyond a century and a quarter unaffected by the change of regime in respect of the
intervening territory which occurred when India became independent, the Court is, in view of

Right of Passage over Indian Territory (Merits)Court of Justice, I.C.J. Reports, 1960, p. 6

all the circumstances of the case, satisfied that that practice was accepted as law by the Parties

21. Portugal claimed before the International Court that she had a right of passage through

and

intervening Indian territory to the extent necessary for the exercise of her sovereignty over

In the case of armed forces and armed police, the Court found that their passage had been

two small enclaves and that India had refused to recognize the obligations imposed by this

dependent on the discretionary power of the territorial sovereign and that no right of passage

right.

as

22. In support of her claim Portugal relied in part on certain agreements concluded in the 18th

The course of dealings established between the Portuguese and the British authorities with

century between Portugal and the local Maratha ruler. Although the Court found that the

respect to the passage of these categories excludes the existence of any such right. The

agreements concerned amounted only to a revenue grant, and not to a grant of sovereignty

practice that was established shows that, with regard to these categories, it was well

together with a right of passage, it appears to have assumed that any such rights granted

understood that passage could take place only by permission of the British authorities. This

would

situation

The

have

been

successor States.16

to

existed

continued

right

and

in

during

favour

the

correlative

of

post-British

obligation/18

Portugal.

period.19

. . . the situation underwent a change with the advent of the British as sovereign of that part

private persons, since such passage was subject at all times to Indias power of regulation and

of the country in place of the Marathas. The British found the Portuguese in occupation of the

control. the Permanent Court of International Justice held that obligations in the nature of real

villages and exercising full and exclusive administrative authority over them. They accepted

rights had been created, which attached to the District of St. Gingolph and remained binding

the situation as they found it and left the Portuguese in occupation of and in exercise of

upon the successor State after sovereignty had passed from Sardinia to France.

over,

however,

such

rise

24. The Court held that India had not acted contrary to its obligations regarding the passage of

authority

found,

on

given

that:

exclusive

Court

binding

has

the

villages.

The Portuguese held themselves out as sovereign over the villages. The British did not, as

[International Law] Asylum Case: Columbia v Peru 1950 ICJ Rep. 266 Case Summary.

Haya de la Torre, with due regard to the inviolability of his person. 3) Peru counter-claim that

Facts Victor Raul Haya de la Torre was a Peruvian national. In Oct 3rd, 1948 one military

Haya de la Torre was an accused of a common crime was rejected. Therefore it was not in

rebellion broke out in Peru which is organized and directed by the American Peoples

accordance with Article I, Paragraph I of the Havana convention. 4) Peru Counter-claim that

Revolutionary Alliance led by Haya de la Torre. The rebellion was unsuccessful. The Peruvian

the grant of asylum by the Columbian government to Haya de la Torre Torre was made in

Government issued a warrant for his arrest on criminal charges related to this political

violation of Article 2, Paragraph 2 of the Havana Convention was approved by the court.

uprising. He fled to the Columbian embassy in Lima seeking for asylum from them. Columbia

Ratio Decidendi 1) The court reject the Columbian argument based on Bolivarian Agreement

the requested permission from Peru for Haya de la Torres safe passage from the Columbian

on the reason that the principle of International Law did not recognize any rule of unilateral

embassy, through Peru, goes to Columbia. Peru refused to give such permission. Columbia

and definitive qualification by the state granting diplomatic asylum. On the other hand, the

then brought this suit against Peru in the International Court of Justice, based on the

Bolivarian Agreement laid down rules on extradition and it was not possible to deduce from

agreement made by both named Act of Lima. These are the submissions made by the two

them conclusions concerning diplomatic asylum as it was different in the meaning. The court

parties: 1) The Columbian had pleaded for the court to declare that Columbia had properly

also rejected the Havana Convention invoke by the Columbian as the convention did not

granted asylum based on 2 submissions:- a. They are competent to qualify the offence for the

recognize the right of unilateral qualification. And the third convention, Convention of

purpose of the said asylum. b. That Peru is bound to give the guarantees necessary for the

Montevideo, had not been ratified by Peru and could not be invoked against it. As for the

departure of the Haya de la Torre, from the country, with due regard to the inviolability of his

American international law, Columbia had failed to prove that it had constant and uniform

person. 2) Counter-claim by Peru is that for the court to declare that the grant of asylum made

practice of unilateral qualification as a right of the State of refuge and an obligation upon the

by the Columbian Ambassador to Haya de la Torre was made in violation of the Convention

territorial state. The fact submitted to the court disclosed too much contradiction and

on Asylum. Argument Plaintiff (Columbian) arguments based on the Convention in force

fluctuation, shows that therein a usage peculiar to Latin America and accepted as law. 2) The

which are the Bolivarian Agreement 1911 on Extradition, the Havana Convention 1928 on

court also rejected the Columbian claim based on Havana Convention that the Peru was

Asylum, the Montevideo Convention 1933 on Political Asylum and American International

bound to gives guarantees necessary for the departure of Haya de la Torre, on the reason that

Law. The Defendant (Peru) counter-claim relied on the rules of Havana Convention first,

the convention only applicable if the territorial State demanded the departure of the refugee

Haya de la Torre was accused, not a political offense but of a common crime and second,

from its territory. It was only after such demand that the diplomatic Agent who granted

because the urgency which was required under the Havana Convention in order to justify

asylum could require safe-conduct. 3) Peru counter-claim that Haya de la Torre was an

asylum was absent in that case. Issue 1. Whether or not Columbia is competent in granting

accused of a common crime was rejected on the reason that the refugee was charged for

asylum to qualify the offence as based on conventions, which in force between both countries,

military rebellion, which was not a common crime as needed under the Havana Convention.

and in general from American international law. 2. Whether or not Peru is bound to give the

4) The court came into conclusion on Peru Counter-claim that the grant of asylum by the

guarantees necessary for the departure of the refugees from the country, with due regard to the

Columbian government to Haya de la Torre Torre was made in violation of Article 2,

inviolability of his person? Decision 1) Columbia was not competent to qualify the nature of

Paragraph 2 of the Havana Convention was on the reason that the absent of element of

the offence by a unilateral and definitive decision binding on Peru. 2) Columbia was not

urgency needed to justify the asylum, in order to protect the person from danger. In this case

entitled to claim that the Peru was bound to gives guarantees necessary for the departure of

the danger that only faced by Haya de la Torre is legal preceding that will be imposed on him,

not a deprivation of his right. The Havana Convention according to the court was not intended

Wimbledon (chartered by a French company Les Affreteurs Reunis) pass through the Kiel

to protect a citizen who had plotted against the institutions of his country from regular legal

Canal.

proceedings. Asylum could only intervene against the action of justice in cases where

ammunition and artillery stores in Salonica, Greece, to be brought to the Polish Naval Base at

arbitrary action was substituted for the rule of law. Rationale 1) Before a convention can be

Danzig, but when the ship arrived at the entrance to the Kiel Canal it was refused passage

accepted to be used as the law under Article 38 of Statute of International Court of Justice, it

because of the German neutrality order in accordance with the Russo-Polish war. The French

must be ratified by the contesting state. This has been shown by the reluctance of the court

Ambassador in Berlin asked the Germans to allow the S.S. Wimbledon passage, and several

to used certain provision in the convention as had not been ratified by the party country. Ie:

days later the German Government responded that it couldnt allow the vessel to pass because

see rules on Montevideo Convention. 2) The principle of International Law that are not

of the military cargo that it carried. The French company then told the ship to go to Danzig

recognizing the rules of unilateral treaty. 3) This decision also shows us that in order for the

via the Danish Straits, resulting in the cargo arriving thirteen days late- eleven for detainment

custom to be international custom it must be a general practice. Ie: see rules on American

by the Germans and two for the extra time it took to go the alternate route. Diplomatic

International Law

relations between the states did not end in a resolution, so the matter was then brought before

The

ship

picked

up

4,200

tons

of

the League of Nations and thus the Permanent Court of International Justice to hear the case.
The

Fisheries

Case

(United

Kingdom

v.

Norway)

C. The plaintiffs in this case are the British, French, Japanese, and Italian governments who

The Fisheries Case (United Kingdom v. Norway) was the culmination of a dispute, originating

claim that Germany violated Articles 380 to 386 of the Treaty of Versailles, which, among

in 1933, over how large an area of water surrounding Norway was Norwegian waters (that

other things, states that the Kiel Canal will remain free and open to the vessels of commerce

Norway thus had exclusive fishing rights to) and how much was high seas (that the UK

of war of all nations at peace with Germany on terms of entire equality. The plaintiffs argue

could

that despite the cargo on the ship, the nation chartering the ship was not at war with Germany

thus

fish).

On 24 September 1949, the UK requested that the International Court of Justice determine

and

how far Norways territorial claim extended to sea, and to award the UK damages in

D. The defendant in this case is the government of Germany who claims that despite the

compensation for Norwegian interference with UK fishing vessels in the disputed waters,

articles of the Treaty of Versailles, they were under no obligation to allow the passage of the

claiming that Norways claim to such an extent of waters was against international law.

S.S. Wimbledon because they issued a Neutrality Order for the Russo-Polish War, which

On 18 December 1951, the ICJ decided that Norways claims to the waters were not

would

inconsistent with international laws concerning the ownership of local sea-space.

to

I.

1923)

III.

Facts

A. Is a state allowed to refuse free passage to a vessel of another state based on the cargo that

A. The British, French, Italian, and Japanese Governments filed an application with the

it is holding if there is a treaty demanding free passage, but another order stating neutrality

registry of the court (PCIJ) on January 16, 1923 against the German Government for refusing

from

a steamship right of passage. The PCIJ heard and decided the case on August 17, 1923.

B. Can a state be obligated to allow free passage, even if this denies the state its right to

B. On March 21, 1921, the German government refused to let the English steamship

neutrality

II.

Case

of

the

S.S.

Wimbledon

(PCIJ,

Ser.

A.,

No.

1,

thus

should

be

have

been

broken

be

by
shipped

allowed

allowing
to

passage.

weapons
Poland.
Questions

military
in

times

conflict?
of

war?

IV.

Decision

individual Neutrality Orders of specific states. This decision showed that the PCIJ considered

The Court ruled that Germany had no right to refuse entrance to the S.S. Wimbledon on

the Treaty of Versailles to be binding and not open to interpretation by individual states that

behalf of the cargo that it was carrying. In addition, the Court claimed that the Kiel Canal is

signed the treaty.

no longer in the same category as normal internal waterways that are ruled at the discretion of
the state they are housed in, but rather it should be considered an international waterway as

Individuals as objects of Intl LawCase: The Barcelona Traction Case (1970; ICJ)

laid

Canal

Facts: Barcelona Traction was a corporation that controlled light and powerutilities in Spain

should be open to all vessels, regardless of state, as long as that state is at peace with

and was incorporated in Toronto, (Canada). In 1948, there wasan adjudication in bankruptcy

Germany, because the point of the canal is to provide easier access to the Baltic. Since the

in Spain of Barcelona Traction. Its object was toseek reparation for damage alleged by

Treaty of Versailles specifically said that the canal could deny access to states at war with

Belgium to have been sustained by Belgiannationals, shareholders in the company. The

Germany, it obviously was not a mistake that it did not include the closure of the canal if

Belgian Government, contended thatafter the First World War Barcelona Traction share

Germany was neutral in a war between two other states. Also, the intent of the writes of the

capital came to be very largelyheld by alleged Belgian nationals, but the Spanish Government,

Treaty of Versailles was to have the canal be an international waterway to the Baltic. In

maintained that theBelgian nationality of the shareholders was notproven.Issue: Whether

addition, the Court cited precedent from the Suez and Panama Canals as illustrations to the

Belgium can bring this case in the ICJ. No.Holding: Belgiums claim is rejected.Reasoning:

invalidity of Germanys claim. Finally, the Court dismissed Germanys claim that their

The Belgian government lacked the standing to exercise diplomaticprotection of Belgian

Neutrality

Versailles.

shareholders in a Canadian company with respect to measurestaken against that company in

Principles

Spain. The court ruled on the side of the Spanish,holding that only the nationality of the

A. A key international law issue in this case is that a neutrality order issued by an individual

corporation (the Canadians) can sue.The case is important as it demonstrates how the concept

state cannot hold more power than the provisions of an international treaty of peace.

of diplomatic protectionunder international law can apply equally to corporations as

B. This case asserts that the right of passage in internal waterways can become designated as

to individuals.Notes Facts:Incorporated in Canada, Belgians hold majority of shares

not being considered internal waterways, and thus the state has limited rights over its control,

Belgian

whereas

Business

out

in

Order

the

Treaty

superseded

of

the

Versailles.

provisions

of

Thus,

the

the

Treaty

V.

the

international

community

has

much

Kiel

of

greater

say.

C. If a states vessel is denied access to a waterway, it affects the commerce and rights of all

govt

say

they

bankrupted

own
in

the

shares
Spain

Issue settled without Belgians involved, and Belgian govt seeks

states who may have vested interests in the area, and thus these states have the jurisdiction to
bring a case against the state who is restricting the rights of free passage.

reparation The connection of the company with Belgium very strong, but court still

VI.

decidedthat Belgium govt cannot submit claims on behalf of its citizens.

Conclusion

The importance of this case lies in that it shows that despite a state having a waterway within
its boundaries, it does not always have ultimate control over the right of passage of other
states vessels. This case put a limit on some state sovereignty and gave more power to
international law in that it affirmed that international peace treaties hold more weight than

Nuclear Tests Case (Australia & New Zealand v. France)

Procedural History: Proceeding before the International Court of Justice.

Overview: Australia and New Zealand (P) demanded that France (D) cease atmospheric

of the late Ferdinand Marcos amounting to roughly $1.9B in compensatory and exemplary

nuclear tests in the South Pacific. France (D) completed a series of nuclear tests in the South

damages for tortuous violations of international law in the US District Court of Hawaii. This

Pacific. Australia and New Zealand (P) applied to the !.C.). demanding that France (D) cease

Final

testing immediately. While the case was pending, France (D) announced the series of tests

As a consequence, Petitioners filed a Complaint with the RTC Makati for the enforcement of

was complete and that it did not plan any further such tests. France (D) moved to dismiss the

the Final Judgment, paying P410 as docket and filing fees based on Rule 141, 7(b) where the

applications.

value of the subject matter is incapable of pecuniary estimation. The Estate of Marcos

Judgment

was

affirmed

by

the

US

Court

of

Appeals.

however, filed a MTD alleging the non-payment of the correct filing fees. RTC Makati
Issue: May declarations made by way of unilateral acts have the effect of creating legal

dismissed the Complaint stating that the subject matter was capable of pecuniary estimation as

obligations?

it involved a judgment rendered by a foreign court ordering the payment of a definite sum of
money allowing for the easy determination of the value of the foreign judgment. As such, the

Rule: declerations made by way of unilateral acts may have the effect of creating legal

proper

obligations.

Issue: Whether or not the amount paid by the Petitioners is the proper filing fee.

Analysis: The unilateral statements made by French authorities were first communicated to
the government of Australia. To have legal effect there was no need tor the statements to be
directed to any particular state. The general nature and characteristics of the statements alone
were relevant for evaluation of their legal implications.

legal obligations. The sole relevant question is whether the language employed in any given
declaration reveals a clear intention. One of the basic principles governing the creation and
performance of legal obligations is the principle of good faith. The statements made by the
President of the French Republic must be held to constitute an engagement of the State in
regard to the circumstances and intention with which they were made. The statements made
by the French authorities are therefore relevant and legally binding. Applications dismissed.
v.

fee

was

P472M,

which

Petitioners

had

not

paid.

Held:
Yes, but on a different basisamount merely corresponds to the same amount required for
other actions not involving property. RTC Makati erred in concluding that the filing fee
should be computed on the basis of the total sum claimed or the stated value of the property in
litigation. The Petitioners Complaint was lodged against the Estate of Marcos but it is clearly

Outcome: Yes. Declarations made by way of unilateral acts may have the effect of creating

Mijares

filing

Ranada

Facts:
Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom suffered human rights
violations during the Marcos era, obtained a Final Judgment in their favor against the Estate

based on a judgment, the Final Judgment of the US District Court. However, the Petitioners
err in stating that the Final Judgment is incapable of pecuniary estimation because it is so
capable. On this point, Petitioners state that this might lead to an instance wherein a first level
court (MTC, MeTC, etc.) would have jurisdiction to enforce a foreign judgment. Under the
B.P.129, such courts are not vested with such jurisdiction. 33 of B.P.129 refers to instances
wherein the cause of action or subject matter pertains to an assertion of rights over property or
a sum of money. But here, the subject matter is the foreign judgment itself. 16 of B.P.129
reveals

that

the

complaint

for

13
enforcement of judgment even if capable of pecuniary estimation would fall under the
jurisdiction of the RTCs. Thus, the Complaint to enforce the US District Court judgment is
one capable of pecuniary estimations but at the same time, it is also an action based on

judgment against an estate, thus placing it beyond the ambit of 7(a) of Rule 141. What
governs the proper computation of the filing fees over Complaints for the enforcement of

Ruling:

foreign judgments is 7(b)(3), involving other actions not involving property.

Executive Order No. 68 is legal and constitutional because Article II, Section 3 of the 1935
Constitution explicitly provides that the Philippines renounces war as an instrument of
national policy, and adopts the generally accepted principles of international law as part of the
law of nation.
In promulgation and enforcement of E.O. No. 68, the President of the Philippine exercised his
power as commander-in-chief of all armed forces. Moreover, it was in adherence with the
generally accepted principles and policies of international law which form part of our
Constitution.

Kuroda vs. Jalandoni

With regards to the contention about the participation of two American lawyers, the
Philippines was under the sovereignty of the United States and thus, we were equally bound
together with the US and Japan, to the rights and obligations contained in the treaties. These
rights and obligations were not erased by our assumption of full sovereignty.

Facts:
Petitioner, formerly a Lieutenant-General of the Japanese Army and Commanding General of
the Japanese Imperial Forces, was charged before a military commission set by Executive
Order No. 68 of the President of the Philippines. Said executive order also established a
National War Crimes Office and prescribed rules and regulations governing the trial of
accused war criminals. Petitioner contended that E.O. No. 68 was illegal and unconstitutional
because he cannot be tried fro violation of international conventions, like the Geneva and
Hague Conventions. Furthermore, he alleged that the participation of two American lawyers
in the prosecution was violative of our national sovereignty.

Issue:
Whether the Philippine Government has the jurisdiction to try and convict Kuroda for
violating prohibited acts of the war.

Secretary of Justice vs Judge Lantion GR 139465 Jan 18 2000

Facts:
On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs
of the United States requesting for the extradition of Mark Jimenez for various crimes in
violation of US laws. In compliance with the related municipal law, specifically Presidential
Decree No. 1069 Prescribing the Procedure for Extradition of Persons Who Have committed
Crimes in a Foreign Country and the established Extradition Treaty Between the
Government of the Philippines and the Government of the United States of America, the
department proceeded with the designation of a panel of attorneys to conduct a technical
evaluation and assessment as provided for in the presidential decree and the treaty.

The respondent requested for a copy of the official extradition request as well as the
documents and papers submitted therein. The petitioner denied the request as it alleges that
such information is confidential in nature and that it is premature to provide such document as
the process is not a preliminary investigation but a mere evaluation. Therefore, the
constitutional rights of the accused are not yet available.

Issue:
1.Whether or not private respondent, Mark B. Jimenez, be granted access to the official
extradition request and documents with an opportunity to file a comment on or opposition
thereto

2.Whether or not private respondents entitlement to notice and hearing during the evaluation
stage of the proceedings constitute a breach of the legal duties of the Philippine Government
under the RP-US Extradition Treaty

The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of
international law, requires the parties to a treaty to keep their agreement therein in good faith.
The doctrine of incorporation is applied whenever municipal tribunals are confronted with
situations in which there appears to be a conflict between a rule of international law and the
provisions of the constitution or statute of a local state. Efforts should be done to harmonize
them. In a situation, however, where the conflict is irreconcilable and a choice has to be made
between a rule of international law and municipal law, jurisprudence dictates that municipal
law should be upheld by the municipal courts. The doctrine of incorporation decrees that rules
of international law are given equal standing, but are not superior to, national legislative
enactments.
In this case, there is no conflict between international law and municipal law. The United
States and the Philippines share a mutual concern about the suppression and punishment of
crime in their respective jurisdictions. At the same time, both States accord common due
process protection to their respective citizens. In fact, neither the Treaty nor the Extradition
Law precludes the rights of due process from a prospective extradite.

Tanada vs Angara, 272 SCRA 18, May 2, 1997

Facts :
Ruling:
The Supreme Court ruled that the private respondent be furnished a copy of the extradition
request and its supporting papers and to give him a reasonable period of time within which to
file his comment with supporting evidence. In this case, there exists a clear conflict between
the obligation of the Philippine Government to comply with the provisions of the treaty and
its equally significant role of protection of its citizens of its right of due process.
The processes outlined in the treaty and in the presidential decree already pose an impending
threat to a prospective extraditees liberty as early as the evaluation stage. It is not an
imagined threat to his liberty, but a very imminent one. On the other hand, granting due
process to the extradition case causes delay in the process.

This is a petition seeking to nullify the Philippine ratification of the World Trade Organization
(WTO) Agreement. Petitioners question the concurrence of herein respondents acting in their
capacities as Senators via signing the said agreement.

The WTO opens access to foreign markets, especially its major trading partners, through the
reduction of tariffs on its exports, particularly agricultural and industrial products. Thus,
provides new opportunities for the service sector cost and uncertainty associated with
exporting and more investment in the country. These are the predicted benefits as reflected in
the agreement and as viewed by the signatory Senators, a free market espoused by WTO.

Petitioners on the other hand viewed the WTO agreement as one that limits, restricts and
impair Philippine economic sovereignty and legislative power. That the Filipino First policy
of the Constitution was taken for granted as it gives foreign trading intervention.

Petition is DISMISSED for lack of merit.

MEJOFF VS. DIRECTOR OF PRISONS 90 PHIL 70

Issue :
Whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Senate in giving its concurrence of the said WTO agreement.

Ruling:
In its Declaration of Principles and state policies, the Constitution adopts the generally
accepted principles of international law as part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity, with all nations. By the
doctrine of incorporation, the country is bound by generally accepted principles of
international law, which are considered automatically part of our own laws. Pacta sunt
servanda international agreements must be performed in good faith. A treaty is not a mere
moral obligation but creates a legally binding obligation on the parties.
Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute
because it is a regulation of commercial relations among nations. Such as when Philippines
joined the United Nations (UN) it consented to restrict its sovereignty right under the
concept of sovereignty as auto-limitation. What Senate did was a valid exercise of authority.
As to determine whether such exercise is wise, beneficial or viable is outside the realm of
judicial inquiry and review. The act of signing the said agreement is not a legislative
restriction as WTO allows withdrawal of membership should this be the political desire of a
member. Also, it should not be viewed as a limitation of economic sovereignty. WTO remains
as the only viable structure for multilateral trading and the veritable forum for the
development of international trade law. Its alternative is isolation, stagnation if not economic
self-destruction. Thus, the people be allowed, through their duly elected officers, make their
free choice.

September 26, 1951

Facts:
This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a
decision of this Court of July 30, 1949.

"The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country
from Shanghai as a secret operative by the Japanese forces during the latter's regime in these
Islands. Upon liberation he was arrested as a Japanese spy, by U. S. Army Counter
Intelligence Corps.

Thereafter the People's Court ordered his release. But the Deportation Board taking his case
up, found that having no travel documents Mejoff was illegally in this country, and
consequently referred the matter to the immigration authorities.

After the corresponding investigation, the Board of Commissioners of Immigration on April

5, 1948, declared that Mejoff had entered the Philippines illegally in 1944, without inspection
and admission by the immigration officials at a designation port of entry and, therefore, it
ordered that he be deported on the first available transportation to Russia.

The petitioner was then under custody, he having been arrested on March 18, 1948.

In October 1948 after repeated failures to ship this deportee abroad, the authorities removed
him to Bilibid Prison at Muntinglupa where he has been confined up to the present time,
inasmuch as the Commissioner of Immigration believes it is for the best interests of the
country to keep him under detention while arrangements for his departure are being made."

fundamental rights granted him by the Constitution or by law" (Art. 8); that "No one shall be
subjected to arbitrary arrest, detention or exile" (Art. 9 ); etc.

Over two years having elapsed since the decision aforesaid was promulgated, the Government
has not found ways and means of removing the petitioner out of the country, and none are in
sight, although, it should be said in justice to the deportation authorities, it was through no
fault of theirs that no ship or country would take the petitioner.

Premises considered, the writ will issue commanding the respondents to release the petitioner
from custody upon these terms: The petitioner shall be placed under the surveillance of the
immigration authorities or their agents in such form and manner as may be deemed adequate
to insure that he keep peace and be available when the Government is ready to deport him.
The surveillance shall be reasonable and the question of reasonableness shall be submitted to
this Court or to the Court of First Instance of Manila for decision in case of abuse.

RULING:

No costs will be charged.

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

Agustin vs Edu 88 SCRA 195

Facts :

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted
principles of international law as part of the law of Nation." And in a resolution entitled
"Universal Declaration Of Human Rights" and approved by the General Assembly of the
United Nations of which the Philippines is a member, at its plenary meeting on December 10,
1948, the right to life and liberty and all other fundamental rights as applied to all human
beings were proclaimed.

It was there resolved that "All human beings are born free and equal in degree and rights"
(Art. 1); that "Everyone is entitled to all the rights and freedom set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, nationality or social origin, property, birth, or other status" (Art. 2); that "Every one
has the right to an effective remedy by the competent national tribunals for acts violating the

This case is a petition assailing the validity or the constitutionality of a Letter of Instruction
No. 229, issued by President Ferdinand E. Marcos, requiring all vehicle owners, users or
drivers to procure early warning devices to be installed a distance away from such vehicle
when it stalls or is disabled. In compliance with such letter of instruction, the Commissioner
of the Land Transportation Office issued Administratie Order No. 1 directing the compliance
thereof.
This petition alleges that such letter of instruction and subsequent administrative order are
unlawful and unconstitutional as it violates the provisions on due process, equal protection of
the law and undue delegation of police power.

Issue:

Whether or not the Letter of Instruction No. 229 and the subsequent Administrative Order
issued is unconstitutional?

THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OFCUSTOMS,

petitioners,vs.
EASTERN SEA TRADING,

Ruling:
The Supreme Court ruled for the dismissal of the petition. The statutes in question are deemed
not unconstitutional. These were definitely in the exercise of police power as such was
established to promote public welfare and public safety. In fact, the letter of instruction is
based on the constitutional provision of adopting to the generally accepted principles of
international law as part of the law of the land. The letter of instruction mentions, as its
premise and basis, the resolutions of the 1968 Vienna Convention on Road Signs and Signals
and the discussions on traffic safety by the United Nations - that such letter was issued in
consideration of a growing number of road accidents due to stalled or parked vehicles on the
streets and highways.

respondent.
G.R. No. L-14279October 31, 1961

Topic: Executive Agreements

NATURE OF THE CASE
This is a petition for review of a decision of the Court of Tax Appeals, whichreversed a
decision of the Commissioner of Customs
FACTS
Several onion and garlic shipments imported by respondent consignee fromHongkong and
Japan were seized and subjected to forfeiture proceedings for alleged violations of Section
1363 of the Revised Administrative Code. Allegedly, none of the shipments had the certificate
required by Central BankCirculars 44 and 45 (requiring a Central Bank license and a
certificateauthorizing the importation or release of the subject good ) for their release.The
Collector of Customs of Manila rendered judgment declaring theforfeiture of the goods in
favor of the Government. Upon appeal, theCommissi
oner of Customs upheld the Collectors decision. Respondent filed
a petition for review with the Court of Tax Appeals. The CTA reversed the
Commissioner
s decision. Hence, this present petition.
ISSUES

1. Whether the seizure and forfeiture of the goods imported from Japan canbe justified under
EO 328 (which implements an executive agreementextending the effectivity of the Trades and
Financial Agreements of thePhilippines with Japan)
---YES.
2. Whether the executive agreement sought to be implemented by EO 328 islegal and valid,
considering that the Senate has not concurred in the makingof said executive agreement
---NO.

RULING
Treaties are different from executive agreements. While treaties are formaldocuments which
require ratification by the Senate, executive agreementsbecome binding through executive
action without the need of a vote by theSenate or Congress. Further, international agreements
involving politicalissues or changes of national policy and those involving
internationalarrangements of a permanent character usually take the form of treaties; onthe
other hand, international agreements embodying

Thevalidity of these has never been seriously questioned by our courts

.Francis Saye, former US High Commissioner to the Philippines, further states that xxx it
would seem to be sufficient, in order to show that the tradeagreements under the act of 1934
are not anomalous in character, that theyare not treaties, and that they have abundant
precedent in our history, torefer to certain classes of agreements entered into by the Executive
withoutthe approval of the Senate. They cover such subjects as the inspection of vessels,
navigation dues, income tax on shipping profits, the admission of civil aircraft, customs
matters, and commercial relations generally,international claims, postal matters, the
registration of trademarks andcopyrights, etcetera. Some of them were concluded not by
specificcongressional authorization but in conformity with policies declared in acts of
Congress with respect to the general subject matter, such as tariff acts; whilestill others,
particularly those with respect of the settlement of claims againstforeign governments, were
concluded independently of any legislationThe Parity Rights Agreement, which was provided
for in the Ordinance Appended to the Constitution was the subject of an executive
agreement,made without the concurrence of 2/3 of the Senate of the US.Hence, the validity of
the executive agreement in question in this case ispatent.The authority to issue import licenses
was not vested exclusively upon theImport Control Commission or Administration. EO 328
provided for export or import licenses "from the
Central Bank of the Philippines

adjustments of detail
carrying out well-established national policies and traditions and thoseinvolving arrangements
of a more or less temporary nature usually take theform of executive agreements.The right of
the Executive to enter into binding agreements

or the ImportControl Administration" or Commission. Indeed, the latter was created only
toperform the task of implementing certain objectives of the Monetary Boardand the Central
Bank,
which otherwise had to be undertaken by these two (2)agencies

without
thenecessity of subsequent Congressional approval has been
confirmed by long usage
. From the earliest days of our history we have entered into executiveagreements covering
such subjects as commercial and consular relations,most-favored-nation rights, patent rights,
trademark and copyright protection,postal and navigation arrangements and the settlement of
claims.

. Upon the abolition of said Commission, the duty to provide meansand ways for the
accomplishment of said objectives had merely to bedischarged directly by the Monetary
Board and the Central Bank, even if theaforementioned Executive Order had been silent
thereon.The decision of the CTA is reversed.

anti-terrorism campaign declared by President George W. Bush in reaction to the 3

commercial aircrafts hijacking that smashed into twin towers of the World Trade Center in
New York City and the Pentagon building in Washington, D.C. allegedly by the al-Qaeda
headed by the Osama bin Laden that occurred on September 11, 2001. Arthur D. Lim and
Paulino P. Ersando as citizens, lawyers and taxpayers filed a petition for certiorari and
prohibition attacking the constitutionality of the joint exercise. Partylists Sanlakas and
Partido Ng Manggagawa as residents of Zamboanga and Sulu directly affected by the
operations
filed
a
petition-in-intervention.
The Solicitor General commented the prematurity of the action as it is based only on a fear
of future violation of the Terms of Reference and impropriety of availing of certiorari to
ascertain a question of fact specifically interpretation of the VFA whether it is covers
"Balikatan 02-1 and no question of constitutionality is involved. Moreover, there is lack of
locus standi since it does not involve tax spending and there is no proof of direct personal
injury.
ISSUE:

W/N

the

petition

and

the

petition-in-intervention

should

prosper.

HELD: NO. Petition and the petition-in-intervention are hereby DISMISSED without
prejudice to the filing of a new petition sufficient in form and substance in the proper
Regional
Trial
Court
Supreme
Court
is
not
a
trier
of
facts
Lim
Lessons Applicable:
Incorporation
Laws

v.

Executive

Secretary

Locus Standi, International Law v. Muncipal Law, Certiorari,

Clause,
Treaties
Applicable:

Constitution

Doctrine
of
Importance
to
the
Public
Considering however the importance to the public of the case at bar, and in keeping with the
Court's duty, under the 1987 Constitution, to determine whether or not the other branches of
the government have kept themselves within the limits of the Constitution and the laws that
they have not abused the discretion given to them, the Court has brushed aside technicalities
of
procedure
and
has
taken
cognizance
of
this
petition.

FACTS:
Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed
forces of the United States of America started arriving in Mindanao to take partin "Balikatan
02-1 on January 2002. The Balikatan 02-1 exercises involves the simulation of joint military
maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into
by the Philippines and the United States in 1951. The exercise is rooted from the international

Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation of powers, which enjoins upon the department of the government a
becoming respect for each other's act, this Court nevertheless resolves to take cognizance of
the
instant
petition.
Interpretation
of
Treaty
The VFA permits United States personnel to engage, on an impermanent basis, in "activities,"

the exact meaning of which was left undefined. The expression is ambiguous, permitting a
wide scope of undertakings subject only to the approval of the Philippine government. The
sole encumbrance placed on its definition is couched in the negative, in that United States
personnel must "abstain from any activity inconsistent with the spirit of this agreement, and in
particular, from any political activity." All other activities, in other words, are fair game.
To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3 and
Article 32 contains provisos governing interpretations of international agreements. It is clear
from the foregoing that the cardinal rule of interpretation must involve an examination of the
text, which is presumed to verbalize the parties' intentions. The Convention likewise dictates
what may be used as aids to deduce the meaning of terms, which it refers to as the context of
the treaty, as well as other elements may be taken into account alongside the aforesaid
context. According to Professor Briggs, writer on the Convention, the distinction between the
general rule of interpretation and the supplementary means of interpretation is intended rather
to ensure that the supplementary means do not constitute an alternative, autonomous method
of
interpretation
divorced
from
the
general
rule.
The meaning of the word activities" was deliberately made that way to give both parties a
certain leeway in negotiation. Thus, the VFA gives legitimacy to the current Balikatan
exercises. Both the history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities -as opposed to combat itself -such as the one subject
of
the
instant
petition,
are
indeed
authorized.
The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US
exercise participants may not engage in combat "except in self-defense." ." The indirect
violation is actually petitioners' worry, that in reality, "Balikatan 02-1" is actually a war
principally conducted by the United States government, and that the provision on self-defense
serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement
on this matter thereby becomes crucial. In our considered opinion, neither the MDT nor the
VFA allow foreign troops to engage in an offensive war on Philippine territory. Under the
salutary proscription stated in Article 2 of the Charter of the United Nations.
Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and
international agreements to which the Philippines is a party, must be read in the context of
the 1987 Constitution especially Sec. 2, 7 and 8 of Article 2: Declaration of Principles and
State Policies in this case. The Constitution also regulates the foreign relations powers of the
Chief Executive when it provides that "[n]o treaty or international agreement shall be valid
and effective unless concurred in by at least two-thirds of all the members of the Senate."
Even more pointedly Sec. 25 on Transitory Provisions which shows antipathy towards foreign

military presence in the country, or of foreign influence in general. Hence, foreign troops are
allowed entry into the Philippines only by way of direct exception.
International
Law
vs.
Fundamental
Law
and
Municipal
Laws
Conflict arises then between the fundamental law and our obligations arising from
international
agreements.
Philip Morris, Inc. v. Court of Appeals: Withal, the fact that international law has been made
part of the law of the land does not by any means imply the primacy of international law over
national law in the municipal sphere. Under the doctrine of incorporation as applied in most
countries, rules of international law are given a standing equal, not superior, to national
legislation.
From the perspective of public international law, a treaty is favored over municipal law
pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding
upon the parties to it and must be performed by them in good faith." Further, a party to a
treaty is not allowed to "invoke the provisions of its internal law as justification for its failure
to
perform
a
treaty."
Our Constitution espouses the opposing view as stated in section 5 of Article VIII: The
Supreme
Court
shall
have
the
following
powers:
xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation
is
in
question.
Ichong v. Hernandez: provisions of a treaty are always subject to qualification or amendment
by a subsequent law, or that it is subject to the police power of the State
Gonzales v. Hechanova: 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.
The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an
offensive war on Philippine territory.