Name of the Case: The Lotus Case (France vs Turkey); Year

The Courts Decision:

wide measure of discretion, which is only limited by the

of the decision: 1927; and Court: PCIJ.

prohibitive rules of international law.

Turkey, by instituting criminal proceedings against Demons,

Overview: A collision occurred on the high seas between a

did not violate international law.

It does not, however, follow that international law prohibits

French vessel and a Turkish vessel. Victims were Turkish

nationals

and

the

Could Turkey exercise

alleged
its

offender

jurisdiction

over

was
the

French.

a State from exercising jurisdiction in its own territory, in

Relevant Findings of the Court:

respect of any case which relates to acts which have taken

French

place abroad, and in which it cannot rely on some

Establishing Jurisdiction: Does Turkey need to support its

national under international law?

assertion

of

jurisdiction using

an

existing

rule

of

international law or is the mere absence of a prohibition

Facts of the Case:

preventing the exercise of jurisdiction enough?

vessel Lotus and a Turkish vessel Boz-Kourt. The Boz-

The first principle of the Lotus case said that jurisdiction is

Kourt sank and killed eight Turkish nationals on board the

territorial: A State cannot exercise its jurisdiction outside

Turkish vessel. The 10 survivors of the Boz-Kourt (including

its territory unless an international treaty or customary

its captain) were taken to Turkey on board the Lotus. In

law permits it to do so. This is what we called the first Lotus

Turkey, the officer on watch of the Lotus (Demons), and the

Principle.

demanding the release of Demons or the transfer of his

case to the French Courts. Turkey and France agreed to refer
this dispute on the jurisdiction to the Permanent Court of

Now

the

first

and

foremost restriction

imposed

by

international law upon a State is that failing the existence

of a permissive rule to the contrary it may not exercise its
power in any form in the territory of another State. In this
sense jurisdiction is certainly territorial; it cannot be

a permissive rule derived from international custom or from

international

law

contained

general

prohibition to States to extend the application of their laws

acts outside their territory, and if, as an exception to this

general prohibition, it allowed States to do so in certain
specific cases. But this is certainly not the case under
international law as it stands at present. Far from laying

of their courts to persons, property and acts outside their

territory, it leaves them in this respect a wide measure of
discretion, which is only limited in certain cases by
prohibitive rules; as regards other cases, every State
remains free to adopt the principles which it regards as best
and most suitable. This discretion left to States by
international law explains the great variety of rules which
they have been able to adopt without objections or

a convention. (para 45)

Questions before the Court:

if

extend the application of their laws and the jurisdiction

exercised by a State outside its territory except by virtue of

International Justice (PCIJ).

tenable

down a general prohibition to the effect that States may not

captain of the Turkish ship were charged with manslaughter.

imprisonment and a fine. The French government protested,

be

and the jurisdiction of their courts to persons, property and

A collision occurred on the high seas between a French

Demons, a French national, was sentenced to 80 days of

permissive rule of international law. Such a view would only

complaints

on

the

part

of other

States

In

these

Did Turkey violate international law when Turkish courts

The

its

circumstances all that can be required of a State is that it

exercised jurisdiction over a crime committed by a French

territory, a State may exercise its jurisdiction, on any

should not overstep the limits which international law

national,

matter, even if there is no specific rule of international law

places upon its jurisdiction; within these limits, its title to

outside

Turkey?

compensation to France?

If

yes,

should

Turkey

pay

second

principle

of

the

Lotus

case: Within

permitting it to do so. In these instances, States have a

exercise jurisdiction rests in its sovereignty. (paras 46 and

the flag State, did not enjoy exclusive territorial jurisdiction

was

47)

in the high seas in respect of a collision with a vessel

constitutive element of the crime was committed in that

carrying the flag of another State (paras 71 84). The Court

State. Today, we call this subjective territorial jurisdiction. In

This applied to civil and criminal cases. If the existence of a

held that Turkey and France both have jurisdiction in respect

order for subjective territorial jurisdiction to be established,

specific rule was a pre-requisite to exercise jurisdiction, PCIJ

of the whole incident: i.e. there is concurrent jurisdiction.

one must prove that the element of the crime and the

argued, then it wouldin many cases result in paralysing

committed outside

its

territory,

so

long

as

actual crime are entirely inseparable; i.e., if the constituent

the action of the courts, owing to the impossibility of citing

The PCIJ held that a ship in the high seas is assimilated to

a universally accepted rule on which to support the

the territory of the flag State. This State may exercise its

exercise of their [States] jurisdiction (para 48).

jurisdiction over the ship, in the same way as it exercises its

The offence for which Lieutenant Demons appears to have

jurisdiction over its land, to the exclusion of all other States.

been prosecuted was an act of negligence or imprudence

In this case, the Court equated the Turkish vessel to Turkish

having its origin on board the Lotus, whilst its effects

territory. In this case, the PCIJ held that the offence

made themselves felt on board the Boz-Kourt. These two

produced

and

elements are, legally, entirely inseparable, so much so that

consequently in a place assimilated to Turkish territory in

their separation renders the offence non-existent It is only

which the application of Turkish criminal law cannot be

natural that each should be able to exercise jurisdiction and

challenged, even in regard to offences committed there by

to do so in respect of the incident as a whole. It is therefore

foreigners. Turkey had jurisdiction over this case.

a case of concurrent jurisdiction.

The PCIJ based this finding on the sovereign will of States.

International law governs relations between independent

States.

The

rules

of

law

binding

upon

States

therefor emanate from their own free will as expressed in

conventions or by usages generally accepted as expressing
principles of law and established in order to regulate the
relations

between

these

co-existing

its

effects

on

the

Turkish

vessel

element was absent the crime would not have happened.

independent

communities or with a view to the achievement of common

If, therefore, a guilty act committed on the high seas

aims. Restrictions upon the independence of States cannot

produces its effects on a vessel flying another flag or in

therefore be presumed

foreign territory, the same principles must be applied as if

The

the territories of two different States were concerned, and

creating customary international law. France alleged that

the conclusion must therefore be drawn that there is no rule

jurisdictional questions on collision cases are rarely heard in

of international law prohibiting the State to which the ship

criminal cases because States tend to prosecute only before

on which the effects of the offence have taken place

the

belongs,

prosecutions

[NB: This was one of the more debated aspects of the

judgement. Some argued that the Court placed too much
emphasis on sovereignty and consent of States (i.e. took a
strong positivist view)].

Criminal Jurisdiction: Territorial Jurisdiction

from

regarding the

offence

as

having

been

ship in high seas. The PCIJ disagreed. It held that France, as

Lotus

flag

case

State.

gives

an

France argued

points

to

important

that

positive

this

rule

in

dictum on

absence

of

customary

committed in its territory and prosecuting, accordingly, the

law on collisions.The Court held that this would merely

delinquent.

show that States had often, in practice, abstained from

instituting

France alleged that the flag State of a vessel would have

exclusive jurisdiction over offences committed on board the

Customary International Law

criminal

proceedings,

and

not

that

they

The Lotus Case was also significant in that the PCIJ said that

recognized themselves as being obliged to do so; for only if

a State would have territorial jurisdiction, even if the crime

such abstention were based on their being conscious of

having a duty to abstain would it be possible to speak of an

He criticises the Lotus dictum as an out dated, 19th century

Under the Act of Congress of March 3, 1891, c. 517, this Court has

international custom. The alleged fact does not allow one to

positivist approach that is excessively differential towards

jurisdiction of appeals from all final sentences and decrees in prize

infer that States have been conscious of having such a

State

causes, without regard to the amount in dispute and without any

duty; on the other hand, as will presently be seen, there are

considered the possibility that international law can be

certificate of the district judge as to the importance of the particular

other circumstances calculated to show that the contrary is

deliberately neutral or silent on the international lawfulness

case.

true. In other words, opinio juris is reflected in acts of

of certain acts. Instead of concluding that an the absence of

International law is part of our law, and must be ascertained and

States (Nicaragua Case) or in omissions (Lotus case) in so

prohibition ipso facto meant that a unilateral declaration of

administered by the courts of justice of appropriate jurisdiction as

far as those acts or omissions are done following a belief

independence is permitted under international law, the

often as questions of right depending upon it are duly presented for

that the said State is obligated by law to act or refrain from

acting

in

particular

way.

(For more

on opinio

consent.

court

should

He

says that

have

inquired

the

Court

whether

should

under

have

certain

conditions international law permits or tolerates unilateral

juris click here)

declarations of independence. Read more here.

Subsequent ICJ Decisions and Separate Opinions

Ruwanthika Gunaratne and Public International Law

That Referred to Principles of the Lotus Case

at https://ruwanthikagunaratne.wordpress.com,
present.

1. Advisory

Opinion

on

the

Unilateral

Declaration

of

Kosovo (2010)

In the Kosovo Advisory Opinion the Court had to decide

if the unilateral declaration of Kosovo of February 2008 was
in accordance with international law. The Court inquired

Unauthorized

use

and/or

duplication

2008
of

the world and independently of any express treaty or other public

and links may be used, provided that full and clear credit is

act, it is an established rule of international law that coast fishing

given to Ruwanthika Gunaratne and Public International Law

vessels, with their implements and supplies, cargoes and crews,

with appropriate and specific direction to the original

unarmed and honestly pursuing their peaceful calling of catching

content.

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

The Paquete Habana

declaration

Nos. 895-896

any

Argued November 7-8, 1899

applicable rule of international law.

Decided January 8, 1900

Judge

Simma

disagrees, inter

alia,

with

Courts

methodology in arriving at this conclusion. He imputes the

method to the principle established in the Lotus case: that
which is not prohibited is permitted under international law.

be, but for trustworthy evidence of what the law really is.

blogs author and/or owner is strictly prohibited. Excerpts

on this finding, the Court decided that the adoption of the

violate

this

the speculations of their authors concerning what the law ought to

At the present day, by the general consent of the civilized nations of

The Paquete Habana, 175 U.S. 677 (1900)

not

evidence of these, to the works of jurists and commentators, not for

material without express and written permission from this

prohibit an unilateral declaration of independence. Based

independence did

controlling executive or legislative act or judicial decision, resort

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

and concluded that the applicable international law did not

of

their determination. For this purpose, where there is no treaty and no

175 U.S. 677 (1900)

APPEALS FROM THE DISTRICT COURT OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF FLORIDA
Syllabus

And this rule is one which prize courts, administering the law of
nations, are bound to take judicial notice of, and to give effect to, in
the absence of any treaty or other public act of their own government
in relation to the matter.
At the breaking out of the recent war with Spain, two fishing smacks
-- the one a sloop, 43 feet long on the keel and of 25 tons burden,
and with a crew of three men, and the other a schooner, 51 feet long
on the keel and of 35 tons burden, and with a crew of six men -were regularly engaged in fishing on the coast of Cuba, sailing under

the Spanish flag, and each owned by a Spanish subject, residing in

in the City of Havana; was commanded by a subject of Spain, also

not to go into Havana, but was told that she would be allowed to land

Havana; her crew, who also resided there, had no interest in the

residing in Havana, and her master and crew had no interest in the

at Bahia Honda. She then changed her course, and put for Bahia

vessel, but were entitled to shares, amounting in all to two thirds, of

vessel, but were entitled to shares, amounting in all to two-thirds, of

Honda, but on the next morning, when near that port, was captured

her catch, the other third belonging to her owner, and her cargo

her catch, the other third belonging to her owner. Her cargo

by the United States steamship Dolphin.

consisted of fresh fish, caught by her crew from the sea, put on

consisted of fresh fish, caught by her crew from the sea, put on

Both the fishing vessels were brought by their captors into Key West.

board as they were caught, and kept and sold alive. Each vessel left

board as they were caught, and kept and sold alive. Until stopped by

A libel for the condemnation of each vessel and her cargo as prize of

Havana on a coast fishing voyage, and sailed along the coast of

the blockading squadron, she had no knowledge of the existence of

war was there filed on April 27, 1898; a claim was interposed by her

Cuba about two hundred miles to the west end of the island; the

the war or of any blockade. She had no arms or ammunition on

master on behalf of himself and the other members of the crew, and

sloop there fished for twenty-five days in the territorial waters of

board, and made no attempt to run the blockade after she knew of

of her owner; evidence was taken, showing the facts above stated,

Spain, and the schooner extended her fishing trip a hundred

its existence, nor any resistance at the time of the capture.

and on May 30, 1898, a final decree of condemnation and sale was

Page 175 U. S. 678

The Paquete Habana was a sloop, 43 feet long on the keel,

entered,

miles farther across the Yucatan Channel, and fished for eight days

Page 175 U. S. 679

"the court not being satisfied that as a matter of law, without any

on the coast of Yucatan. On her return, with her cargo of live fish,

and of 25 tons burden, and had a crew of three Cubans, including

ordinance, treaty, or proclamation, fishing vessels of this class are

along the coast of Cuba, and when near Havana, each was captured

the master, who had a fishing license from the Spanish government,

exempt from seizure."

by one of the United States blockading squadron. Neither fishing

and no other commission or license. She left Havana March 25,

Each vessel was thereupon sold by auction; the Paquete Habana for

vessel had any arms or ammunition on board, had any knowledge of

1898, sailed along the coast of Cuba to Cape San Antonio at the

the sum of $490 and the Lola for the sum of $800. There was no

the blockade, or even of the war, until she was stopped by a

western end of the island, and there fished for twenty-five days, lying

other evidence in the record of the value of either vessel or of her

blockading vessel, made any attempt to run the blockade, or any

between the reefs off the cape, within the territorial waters of Spain,

cargo.

resistance at the time of her capture, nor was there any evidence

and then started back for Havana, with a cargo of about 40 quintals

It has been suggested in behalf of the United States that

that she, or her crew, was likely to aid the enemy. Held that both

of live fish. On April 25, 1898, about two miles off Mariel, and eleven

Page 175 U. S. 680

captures were unlawful, and without probable cause.

miles from Havana, she was captured by the United States

this Court has no jurisdiction to hear and determine these appeals

The cases are stated in the opinion of the Court.

gunboat Castine.

because the matter in dispute in either case does not exceed the

MR. JUSTICE GRAY delivered the opinion of the Court.

The Lola was a schooner, 51 feet long on the keel, and of 35 tons

sum or value of $2,000, and the district judge has not certified that

These are two appeals from decrees of the District Court of the

burden, and had a crew of six Cubans, including the master, and no

the adjudication involves a question of general importance.

United States for the Southern District of Florida condemning two

commission or license. She left Havana April 11, 1898, and

The suggestion is founded on 695 of the Revised Statutes, which

fishing vessels and their cargoes as prize of war.

proceeded to Campeachy Sound, off Yucatan, fished there eight

provides that

Each vessel was a fishing smack, running in and out of Havana, and

days, and started back for Havana with a cargo of about 10,000

"an appeal shall be allowed to the Supreme Court from all final

regularly engaged in fishing on the coast of Cuba; sailed under the

pounds of live fish. On April 26, 1898, near Havana, she was

decrees of any district court in prize causes, where the matter in

Spanish flag; was owned by a Spanish subject of Cuban birth, living

stopped by the United States steamship Cincinnati, and was warned

dispute, exclusive of costs, exceeds the sum or value of two

thousand dollars, and shall be allowed, without reference to the

the matter in dispute exceeded the sum or value of $50, and from

The intention of Congress, by the act of 1891, to make the nature of

value of the matter in dispute, on the certificate of the district judge

the circuit courts to this Court in all cases "of admiralty and maritime

the case, and not the amount in dispute, the test of the appellate

that the adjudication involves a question of general importance."

jurisdiction, and of prize or no prize" in which the matter in dispute

jurisdiction of this Court from the district and circuit courts clearly

The Judiciary Acts of the United States, for a century after the

exceeded the sum or value of $2,000. 2 Stat. 244; Jenks v. Lewis, 3

appears upon examination of the leading provisions of the act.

organization of the government under the Constitution, did impose

Mason 503; Stratton v. Jarvis, above cited; The Admiral, 3 Wall.

Section 4 provides that no appeal, whether by writ of error or

pecuniary limits upon appellate jurisdiction.

603, 70 U. S. 612. The acts of March 3, 1863, c. 86, 7, and June

otherwise, shall hereafter be taken from a district court

In actions at law and suits in equity the pecuniary limit of the

30, 1864, c. 174, 13, provided that appeals from the district courts

Page 175 U. S. 682

appellate jurisdiction of this Court from the circuit courts of the

in prize causes should lie directly to this Court, where the amount in

to a circuit court, but that all appeals, by writ of error or otherwise,

United States was for a long time fixed at $2000. Acts of September

controversy exceeded $2,000, or "on the certificate of the district

from the district courts "shall only be subject to review" in this Court

24, 1789, c. 20, 22; 1 Stat. 84; March 3, 1803, c. 40; 2 Stat.

judge that the adjudication involves a question of difficulty and

or in the circuit court of appeal "as is hereinafter provided," and "the

244;Gordon v. Ogden, 3 Pet. 33; Rev.Stat. 691, 692. In 1875, it

general importance." 12 Stat. 760; 13 Stat. 310. The provision of the

review by appeal, by writ of error, or otherwise" from the circuit

was raised to $5,000. Act of February 16, 1875, c. 77, 3; 18 Stat.

act of 1803, omitting the words "and of prize or no prize," was

courts, "shall be had only" in this Court or in the circuit court of

316. And in 1889 this was modified by providing that, where the

reenacted in 692 of the Revised Statutes, and the provision of the

appeals, "according to the provisions of this act regulating the

judgment or decree did not exceed the sum of $5,000, this Court

act of 1864, concerning prize causes, was substantially reenacted in

same."

should have appellate jurisdiction upon the question of the

695 of the Revised Statutes, already quoted.

Section 5 provides that "appeals or writs of error may be taken from

jurisdiction of the circuit court, and upon that question only. Act of

But all this has been changed by the Act of March 3, 1891, c. 517,

the district courts, or from the existing circuit courts, direct to the

February 25, 1889, c. 236, 1; 25 Stat. 693; Parker v. Ormsby, 141

establishing the circuit courts of appeals and creating a new and

Supreme Court, in the following cases:"

U. S. 81.

complete scheme of appellate jurisdiction, depending upon the

First.

As to cases of admiralty and maritime jurisdiction, including prize

nature of the different cases, rather than upon the pecuniary amount

"In any case in which the jurisdiction of the court is in issue; in such

causes, the Judiciary Act of 1789, in 9, vested the original

involved. 26 Stat. 826.

cases, the question of jurisdiction alone shall be certified to the

jurisdiction in the district courts, without regard to the sum or value in

By that act, as this Court has declared, the entire appellate

Supreme Court from the court below for decision."

controversy, and in 21 permitted an appeal from them to the circuit

jurisdiction from the circuit and district courts of the United States

This clause includes "any case," without regard to amount, in which

courts where the matter in dispute exceeded the sum or value of

was distributed, "according to the scheme of the act," between this

the jurisdiction of the court below is in issue, and differs in this

$300. 1 Stat. 77, 83, c. 20; The Betsey, 3 Dall. 6, 3 U. S. 16;The

Court and the circuit courts of appeals thereby established, "by

respect from the act of 1889, above cited.

Amiable Nancy, 3 Wheat. 546; Stratton v. Jarvis, 8 Pet. 4, 33 U. S.

designating the classes of cases" of which each of these courts was

Second. "From the final sentences and decrees in prize causes."

11. By the Act of March 3, 1803, c. 40, appeals to the circuit court

to have final jurisdiction. McLish v. Roff, 141 U. S. 661, 141 U. S.

This clause includes the whole class of "the final sentences and

were permitted from all final decrees of a district court where

666; American Construction Co. v. Jacksonville Railway, 148 U. S.

decrees in prize causes," and omits all provisions of former acts

Page 175 U. S. 681

372, 148 U. S. 382; Carey v. Houston & Texas Railway, 150 U. S.

regarding amount in controversy, or certificate of a district judge.

170, 150 U. S. 179.

Third. "In cases of conviction of a capital or otherwise infamous

"Nothing in this act shall affect the jurisdiction of the Supreme Court

$1,000 upon the appeal to this Court of a case which has been once

crime." This clause looks to the nature of the crime, and not to the

in cases appealed from the highest court of a state, nor the

decided on appeal in the circuit court of appeals, and in which the

extent of the punishment actually imposed. A crime which might

construction of the statute providing for review of such cases."

judgment of that court is not made final by section 6 of the act.

have been punished by imprisonment in a penitentiary is an

Writs of error from this Court to review the judgments of the highest

Section 14 of the act of 1891, after specifically repealing section 691

infamous crime, even if the sentence actually pronounced is of a

court of a state upon such questions have never been subject to any

of the Revised Statutes and section 3 of the act of February 16,

small fine only. Ex Parte Wilson, 114 U. S. 417, 114 U. S. 426.

pecuniary limit. Act of September 24, 1789, c. 20, 25; 1 Stat.

1875, further provides that

Consequently, such a sentence for such a crime was subject to the

85; Buel v. Van Ness, 8 Wheat. 312; Act of February 5, 1867, c. 28,

"all acts and parts of acts relating to appeals or writs of error,

appellate jurisdiction of this Court, under this clause, until this

2; 14 Stat. 386; Rev.Stat. 709.

inconsistent with the provisions for review by appeals or writs of

jurisdiction, so far as regards infamous crimes, was transferred to

By section 6 of the act of 1891, this Court is relieved of much of the

error in the preceding sections 5 and 6 of this act, are hereby

the circuit court of appeals by the Act of January 20, 1897, c. 68. 29

appellate jurisdiction that it had before; the appellate jurisdiction from

repealed."

Stat. 492.

the district and circuit courts "in all cases other than those provided

26 Stat. 829, 830. The object of the specific repeal, as this Court has

Fourth. "In any case, that involves the construction or application of

for in the preceding section of this act, unless otherwise provided by

declared, was to get rid of the pecuniary limit in the acts referred

the Constitution of the United States."

law," is vested in the circuit court of appeals, and its decisions in

to. McLish v. Roff, 141 U. S. 661, 141 U. S. 667. And, although

Fifth.

admiralty cases, as well as in cases arising under the criminal laws,

neither section 692 nor section 695 of the Revised Statutes is

"In any case in which the constitutionality of any law of the United

and in certain other classes of cases, are made final, except that

repealed by name, yet, taking into consideration the general

States, or the validity or construction of any treaty made under its

that court may certify to this Court questions of law, and that this

repealing clause, together with the affirmative provisions of the act,

authority, is drawn in question. "

Court may order up the whole case by writ of certiorari. It is settled

the case comes within the reason of the decision in an analogous

Page 175 U. S. 683

that the words "unless otherwise provided by law," in this section,

case, in which this Court said:

Sixth. "In any case in which the Constitution or law of a state is

refer only to provisions of the same act, or of contemporaneous or

"The provisions relating to the subject matter under consideration

claimed to be in contravention of the Constitution of the United

subsequent acts, and do not include provisions of earlier

are, however, so comprehensive, as well as so variant from those of

States."

statutes. Lau Ow Bew v. United States, 144 U. S. 47, 144 U. S.

former acts, that we think the intention to substitute the one for the

Each of these last three clauses, again, includes "any case" of the

57; Hubbard v. Soby, 146 U. S. 56; American Construction Co. v.

other is necessarily to be inferred, and must prevail."

class mentioned. They all relate to what are commonly called federal

Jacksonville Railway, 148 U. S. 372, 148 U. S. 383.

Fisk v. Henarie, 142 U. S. 459, 142 U. S. 468.

questions, and cannot reasonably be construed to have intended

The act of 1891 nowhere imposes a pecuniary limit upon the

The decision in this Court in the recent case of United States v.

that the appellate jurisdiction of this Court over such questions

appellate jurisdiction, either of this Court or of the circuit court of

Rider, 163 U. S. 132, affords an important, if not controlling,

should be restricted by any pecuniary limit -- especially in their

appeals, from a district or circuit court of the United States. The only

precedent. From the beginning of this century until the passage of

connection with the succeeding sentence of the same section:

pecuniary limit imposed is one of

the act of 1891, both in civil and in criminal cases, questions of law

Page 175 U. S. 684

upon which two judges of the circuit court were divided in opinion
might be certified by them to this Court for decision. Act of April 29,

1802, c. 31, 6; 2 Stat. 159; June 1, 1872, c. 255, 1; 17 Stat.196;

"furnishes the exclusive rule in respect of appellate jurisdiction on

this Court jurisdiction of appeals from all final sentences and

Rev.Stat. 650-652, 693, 697; Insurance Co. v. Dunham, 11 Wall.

appeal, writ of error, or certificate."

decrees in prize causes, without regard to the amount in dispute,

1, 78 U. S. 21; United States v. Sanges, 144 U. S. 310, 144 U. S.

As was long ago said by Chief Justice Marshall,

and without any certificate of the district judge as to the importance

320. But in United States v. Rider, it was adjudged by this Court that

"the spirit as well as the letter of a statute must be respected, and

of the particular case.

the act of 1891 had superseded and repealed the earlier acts

where the whole context of the law demonstrates a particular intent

We are then brought to the consideration of the question whether,

authorizing questions of law to be certified from the circuit court to

in the legislature to effect a certain object, some degree of

upon the facts appearing in these records, the fishing smacks were

this Court, and the grounds of that adjudication sufficiently appear

implication may be called in to aid that intent."

subject to capture by the armed vessels of the United States during

by

Durousseau v. United States, 6 Cranch 307, 10 U. S. 314. And it is a

the recent war with Spain.

Page 175 U. S. 685

well settled rule in the construction of statutes, often affirmed and

By an ancient usage among civilized nations, beginning centuries

the statement of the effect of the act of 1891 in two passages of that

applied by this Court, that,

ago and gradually ripening into a rule of international law, coast

opinion:

"even where two acts are not in express terms repugnant, yet if the

fishing vessels pursuing their vocation of catching and bringing in

"Appellate jurisdiction was given in all criminal cases by writ of error

latter act covers the whole subject of the first, and embraces new

fresh fish have been recognized as exempt, with their cargoes and

either from this Court or from the circuit courts of appeals, and in all

provisions, plainly showing that it was intended as a substitute for

crews, from capture as prize of war.

civil cases by appeal or error, without regard to the amount in

the first act, it will operate as a repeal of that act."

This doctrine, however, has been earnestly contested at the bar, and

controversy, except as to appeals or writs of error to or from the

United States v. Tynen, 11 Wall. 88, 78 U. S. 92; King v. Cornell, 106

no complete collection of the instances illustrating it is to be found,

circuit courts of appeals in cases not made final as specified in 6. .

U. S. 395, 106 U. S. 396; Tracy v. Tuffly, 134 U. S. 206, 134 U. S.

so far as we are aware, in a single published work, although many

. . It is true that repeals by implication are not favored, but we cannot

223; Fisk v. Henarie, 142 U. S. 459, 142 U. S. 468; District of

are referred to and discussed by the writers on international law,

escape the conclusion that, tested by its scope, its obvious purpose,

Columbia v. Hutton, 143 U. S. 18, 143 U. S. 27; United States v.

notable in 2 Ortolan, Regles Internationales et Diplomatie de la Mer

and its terms, the Act of March 3, 1891, covers the whole subject

Healey, 160 U. S. 136, 160 U. S. 147.

(4th ed.) lib. 3, c. 2, pp. 51-56; in 4 Calvo, Droit International (5th

matter under consideration, and furnishes the exclusive rule in

We are of opinion that the act of 1891, upon its face, read

ed.) 2367-2373; in De Boeck, Propriete Privee Ennemie sous

respect of appellate jurisdiction on appeal, writ of error, or

Page 175 U. S. 686

Pavillon Ennemi, 191-196, and in Hall, International Law (4th ed.)

certificate."

in the light of settled rules of statutory construction and of the

148. It is therefore worth the while to trace the history of the rule

163 U. S. 163 U.S. 138, 163 U. S. 140.

decisions of this Court, clearly manifests the intention of Congress to

from the earliest accessible sources through the increasing

That judgment was thus rested upon two successive propositions:

cover the whole subject of the appellate jurisdiction from the district

recognition of it, with occasional setbacks, to what we may now

first, that the act of 1891 gives appellate jurisdiction, either to this

and circuit courts of the United States, so far as regards in what

justly consider as its final establishment in our own country and

Court or to the circuit court of appeals, in all criminal cases, and in

cases, as well as to what courts, appeals may be taken, and to

generally throughout the civilized world.

all civil cases "without regard to the amount in controversy;" second,

supersede and repeal, to this extent, all the provisions of earlier acts

The earliest acts of any government on the subject mentioned

that the act, by its terms, its scope, and its obvious purpose,

of Congress, including those that imposed pecuniary limits upon

Page 175 U. S. 687

such jurisdiction, and, as part of the new scheme, to confer upon

in the books either emanated from, or were approved by, a King of

The treaty made October 2, 1521, between the Emperor Charles V

end of the treaty, it is agreed that the said King and his said

England.

and Francis I of France, through their ambassadors, recited that a

representative, "by whose means the treaty stands concluded, shall

In 1403 and 1406, Henry IV issued orders to his admirals and other

great and fierce war had arisen between them, because of which

be conservators of the agreements therein, as if thereto by both

officers, entitled "Concerning Safety for Fishermen -- De Securitate

there had been, both by land and by sea, frequent depredations and

parties elected and chosen." 4 Dumont, Corps Diplomatique, pt. 1,

pro Piscatoribus." By an order of October 26, 1403, reciting that it

incursions on either side, to the grave detriment and intolerable

pp. 352, 353.

was made pursuant to a treaty between himself and the King of

injury of the innocent

The herring fishery was permitted, in time of war, by French and

France, and for the greater safety of the fishermen of either country,

Page 175 U. S. 688

Dutch edicts in 1536. Bynkershoek, Quaestiones Juris Publicae, lib.

and so that they could be, and carry on their industry, the more

subjects of each, and that a suitable time for the herring fishery was

1, c. 3; 1 Emerigon des Assurances, c. 4, section 9; c. 12, section

safely on the sea, and deal with each other in peace, and that the

at hand, and, by reason of the sea being beset by the enemy, the

19, section 8.

French King had consented that English fishermen should be treated

fishermen did not dare to go out, whereby the subject of their

France, from remote times, set the example of alleviating the evils of

likewise, it was ordained that French fishermen might, during the

industry, bestowed by heaven to allay the hunger of the poor, would

war in favor of all coast fishermen. In the compilation entitled "Us et

then pending season for the herring fishery, safely fish for herrings

wholly fail for the year unless it were otherwise provided -- quo fit, ut

Coutumes de la Mer," published by Cleirac in 1661, and in the third

and all other fish from the harbor of Gravelines and the Island of

piscaturae commoditas, ad pauperum levandam famen a coelesti

part thereof, containing "Maritime or Admiralty Jurisdiction -- la

Thanet to the mouth of the Seine and the harbor of Hautoune. And

numine concessa, cessare hoc anno omnino debeat, nisi aliter

Jurisdiction de la

by an order of October 5, 1406, he took into his safe conduct and

provideatur. And it was therefore agreed that the subjects of each

Page 175 U. S. 689

under his special protection, guardianship, and defense all and

sovereign, fishing in the sea or exercising the calling of fishermen,

Marine ou d'Admiraute -- as well in time of peace as in time of war,"

singular the fishermen of France, Flanders, and Brittany, with their

could and might, until the end of the next January, without incurring

article 80 is as follows:

fishing vessels and boats, everywhere on the sea, through and

any attack, depredation, molestation, trouble, or hindrance soever,

"The admiral may in time of war accord fishing truces -- tresves

within his dominions, jurisdictions, and territories, in regard to their

safely and freely, everywhere in the sea, take herrings and every

pescheresses -- to the enemy and to his subjects, provided that the

fishery, while sailing, coming, and going, and at their pleasure, freely

other kind of fish, the existing war by land and sea notwithstanding;

enemy will likewise accord them to Frenchmen."

and lawfully fishing, delaying, or proceeding, and returning

and, further, that, during the time aforesaid, no subject of either

Cleirac 544. Under this article, reference is made to articles 49 and

homeward with their catch of fish, without any molestation or

sovereign should commit, or attempt or presume to commit, any

79, respectively, of the French ordinances concerning the admiralty

hindrance whatever, and also their fish, nets, and other property and

depredation, force, violence, molestation, or vexation to or upon

in 1543 and 1584, of which it is but a reproduction. 4 Pardessus,

goods soever, and it was therefore ordered that such fishermen

such fishermen or their vessels, supplies, equipments, nets, and

Collection de Lois Maritimes 319; 2 Ortolan, 51. And Cleirac adds, in

should not be interfered with, provided they should comport

fish, or other goods soever truly appertaining to fishing. The treaty

a note, this quotation from Froissart's Chronicles:

themselves well and properly, and should not, by color of these

was made at Calais, then an English possession. It recites that the

"Fishermen on the sea, whatever war there were in France and

presents, do or attempt, or presume to do or attempt, anything that

ambassadors of the two sovereigns met there at the earnest request

England, never did harm to one another; so they are friends, and

could prejudice the King, or his Kingdom of England, or his subjects.

of Henry VIII and with his countenance and in the presence of

help one another at need -- Pescheurs sur mer, quelque guerre qui

8 Rymer's Foedera 336, 451.

Cardinal Wolsey, his chancellor and representative. And towards the

soit en France et Angleterre, jamais ne se firent mal l'un a l'autre;

vessels laden with fresh fish, even if not caught by those vessels;

Page 175 U. S. 691

aincois sont amis, et s'aydent l'un a l'autre au besoin."

provided they had no offensive arms, and were not proved to have

unarmed and inhabiting unfortified towns, villages, or places, and in

The same custom would seem to have prevailed in France until

made any signals creating a suspicion of intelligence with the

general all others whose occupations are for the common

towards the end of the seventeenth century. For example, in 1675,

enemy, and the admiral was directed to communicate the King's

subsistence and benefit of mankind, shall be allowed to continue

Louis XIV and the States General of Holland, by mutual agreement,

intentions to all officers under his control. By a royal order in council

their respective employments, and shall not be molested in their

granted to Dutch and French fishermen the liberty, undisturbed by

of November 6, 1780, the former orders were confirmed, and the

persons, nor shall their houses or goods be burnt or otherwise

their vessels of war, of fishing along the coasts of France, Holland,

capture and ransom, by a French cruiser, of The John and Sarah, an

destroyed, nor their fields wasted by the armed force of the enemy,

and England. D'Hauterive et De Cussy, Traites de Commerce, pt. 1,

English vessel, coming from Holland, laden with fresh fish, were

into whose power, by the events of war, they may happen to fall; but

vol. 2, p. 278. But by the ordinances of 1681 and 1692, the practice

pronounced to be illegal. 2 Code des Prises (ed. 1784) 721, 901,

if anything is necessary to be taken from them for the use of such

was discontinued, because, Valin says, of the faithless conduct of

903.

armed force, the same shall be paid for at a reasonable price."

the enemies of France, who, abusing the good faith with which she

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

8 Stat. 96; 1 Kent Com. 91, note; Wheaton, History of the Law of

had always observed the treaties, habitually carried off her

the English High Court of Admiralty, was one of April 11, 1780, by

Nations, 306, 308. Here was the clearest exemption from hostile

fishermen, while their own fished in safety. 2 Valin sur l'Ordonnance

which it was

molestation or seizure of the persons, occupations, houses, and

de la Marine (1776) 689, 690; 2 Ortolan 52; De Boeck, 192.

"ordered that all causes of prize of fishing boats or vessels taken

goods of unarmed fishermen inhabiting unfortified places. The

The doctrine which exempts coast fishermen, with their vessels and

from the enemy may be consolidated in one monition, and one

article was repeated in the later treaties between the United States

cargoes, from capture as prize of war, has been familiar to the

sentence or interlocutory, if under fifty tons burthen, and not more

and Prussia of 1799 and 1828. 8 Stat. 174, 384. And Dana, in a note

United States from the time of the War of Independence.

than six in number."

to his edition of Wheaton's International Laws, says:

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

Marriott's Formulary 4. But by the statements of his successor, and

"In many treaties and decrees, fishermen catching fish as an article

to his admiral, informing him that the wish he had always had of

of both French and English writers, it appears that England, as well

of food are added to the class of persons whose occupation is not to

alleviating, as far as he could, the hardships of war, had directed his

as France, during the American Revolutionary War, abstained from

be disturbed in war."

attention to that class of his subjects

interfering with the coast fisheries. The Young Jacob and Johanna,1

Wheaton, International Law (8th ed.) 345, note 168.

Page 175 U. S. 690

C. Rob. 20; 2 Ortolan 53; Hall, 148.

Since the United States became a nation, the only serious

which devoted itself to the trade of fishing, and had no other means

In the treaty of 1785 between the United States and Prussia, article

interruptions, so far as we are informed, of the general recognition of

of livelihood; that he had thought that the example which he should

23 (which was proposed by the American Commissioners, John

the exemption of coast fishing vessels from hostile capture, arose

give to his enemies, and which could have no other source than the

Adams, Benjamin Franklin, and Thomas Jefferson, and is said to

out of the mutual suspicions and recriminations of England and

sentiments of humanity which inspired him, would determine them to

have been drawn up by Franklin), provided that if war should arise

France during the wars of the French Revolution.

allow to fishermen the same facilities which he should consent to

between the contracting parties,

In the first years of those wars, England having authorized the

grant, and that he had therefore given orders to the commanders of

"all women and children, scholars of every faculty, cultivators of the

capture of French fishermen, a decree of the French National

all his ships not to disturb English fishermen, nor to arrest their

earth, artisans, manufacturers, and fishermen,

Convention of October 2, 1793, directed the executive power "to

protest against this conduct, theretofore without example; to reclaim

government complained that French fishing boats had been made

Martens 514; 6 Schoell 121; 2 Ortolan, 54; Manning, Law of Nations

the fishing boats seized; and, in case of refusal, to resort to

into fireboats at Flushing, as well as that the French government had

(Amos' ed.) 206.

reprisals." But in July, 1796, the Committee of Public Safety ordered

impressed and had sent to Brest, to serve in its flotilla, French

Lord Stowell's judgment in The Young Jacob and Johanna, 1 C.

the release of English fishermen seized under the former decree,

fishermen and their boats, even those whom the English had

Rob. 20, above cited, was much relied on by the counsel for the

"not considering them as prisoners of war." La Nostra Segnora de la

released on condition of their not serving, and on January 21, 1801,

United States, and deserves careful consideration.

Piedad (1801) cited below; 2 De Cussy, Droit Maritime, 164, 165; 1

summarily revoked its last order, and again put in force its order of

The vessel there condemned is described in the report as "a small

Masse, Droit Commercial (2d ed.) 266, 267.

January 24, 1798. On February 16, 1801, Napoleon Bonaparte, then

Dutch fishing vessel taken April, 1798, on her return from the

Page 175 U. S. 692

First Consul, directed the French commissioner at London to return

Dogger bank to Holland," and Lord Stowell, in delivering judgment,

On January 24, 1798, the English government by express order

at once to France, first declaring to the English government that its

said:

instructed the commanders of its ships to seize French and Dutch

conduct,

"In former wars, it has not been usual to make captures of these

fishermen with their boats. 6 Martens, Recueil des Traites (2d ed.)

"contrary to all the usages of civilized nations, and to the common

small fishing vessels; but this rule was a rule of comity only, and not

505; 6 Schoell, Histoire des Traites, 119; 2 Ortolan, 53. After the

law which governs them, even in time of war, gave to the existing

of legal decision; it has prevailed from views of mutual

promulgation of that order, Lord Stowell (then Sir William Scott) in

war a character of rage and bitterness which destroyed even the

accommodation between neighboring countries, and from

the High Court of Admiralty of England condemned small Dutch

relations usual in a loyal war, "

tenderness to a poor and industrious order of people. In the present

fishing vessels as prize of war. In one case, the capture was in April,

Page 175 U. S. 693

war, there has, I presume, been sufficient reason for changing this

1798, and the decree was made November 13, 1798. The Young

and "tended only to exasperate the two nations, and to put off the

mode of treatment, and as they are brought before me for my

Jacob and Johanna, 1 C. Rob. 20. In another case, the decree was

term of peace," and that the French government, having always

judgment, they must be referred to the general principles of this

made August 23, 1799. The Noydt Gedacht, 2 C. Rob. 137, note.

made it

Court; they fall under the character and description of the last class

For the year 1800, the orders of the English and French

"a maxim to alleviate as much as possible the evils of war, could not

of cases -- that is, of ships constantly and exclusively employed in

governments and the correspondence between them may be found

think, on its part, of rendering wretched fishermen victims of a

the enemy's trade."

in books already referred to. 6 Martens 503-512; 6 Schoell, 118-120;

prolongation of hostilities, and would abstain from all reprisals."

And he added: "It is a further satisfaction to me in giving this

2 Ortolan 53, 54. The doings for that year may be summed up as

On March 16, 1801, the Addington Ministry, having come into power

judgment to observe that the facts also bear strong marks of a false

follows: on March 27, 1800, the French government, unwilling to

in England, revoked the orders of its predecessors against the

and fraudulent transaction."

resort to reprisals, reenacted the orders given by Louis XVI in 1780,

French fishermen, maintaining, however, that "the freedom of fishing

Page 175 U. S. 694

above mentioned, prohibiting any seizure by the French ships of

was nowise founded upon an agreement, but upon a simple

Both the capture and the condemnation were within a year after the

English fishermen, unless armed or proved to have made signals to

concession," that "this concession would be always subordinate to

order of the English government of January 24, 1798, instructing the

the enemy. On May 30, 1800, the English government, having

the convenience of the moment," and that "it was never extended to

commanders of its ships to seize French and Dutch fishing vessels,

received notice of that action of the French government, revoked its

the great fishery, or to commerce in oysters or in fish." And the

and before any revocation of that order. Lord Stowell's judgment

order of January 24, 1798. But soon afterward, the English

freedom of the coast fisheries was again allowed on both sides. 6

shows that his decision was based upon the order of 1798, as well

as upon strong evidence of fraud. Nothing more was adjudged in the

cargo of fish, having no more crew than was needed for her

freely trade thereat, and which are employed in the whale fishery, or

case.

management and for serving the nets, on a trip of several days, had

other fishery of any description, save as hereinafter excepted, and

But some expressions in his opinion have been given so much

been captured

are returning, or destined to return either to the port from whence

weight by English writers that it may be well to examine them

Page 175 U. S. 695

they cleared, or to any other port or place at which the British flag

particularly. The opinion begins by admitting the known custom in

in April, 1801, by a French cruiser, three leagues off the coast of

may not freely trade, shall be captured and condemned together with

former wars not to capture such vessels, adding, however, "but this

Portugal, the Council of Prizes held that the capture was contrary to

their stores and cargoes, as prize to the captors,"

was a rule of comity only, and not of legal decision." Assuming the

"the principles of humanity and the maxims of international law," and

there were excepted "vessels employed in catching and conveying

phrase "legal decision" to have been there used, in the sense in

decreed that the vessel, with the fish on board, or the net proceeds

fish fresh to market, such vessels not being fitted or provided for the

which courts are accustomed to use it, as equivalent to "judicial

of any that had been sold, should be restored to her master. La

curing of fish." Edw.Adm. appx. L.

decision," it is true that, so far as appears, there had been no such

Nostra Segnora de la Piedad, 25 Merlin, Jurisprudence, Prise

Wheaton, in his Digest of the Law of Maritime Captures and Prizes,

decision on the point in England. The word "comity" was apparently

Maritime, 3, arts. 1, 3; S.C. 1 Pistoye et Duverdy, Prises Maritimes

published in 1815, wrote:

used by Lord Stowell as synonymous with courtesy or goodwill. But

331; 2 De Cussy, Droit Maritime 166.

"It has been usual

the period of a hundred years which has since elapsed is amply

The English government, soon afterwards, more than once

Page 175 U. S. 696

sufficient to have enabled what originally may have rested in custom

unqualifiedly prohibited the molestation of fishing vessels employed

in maritime wars to exempt from capture fishing boats and their

or comity, courtesy or concession, to grow, by the general assent of

in catching and bringing to market fresh fish. On May 23, 1806, it

cargoes, both from views of mutual accommodation between

civilized nations, into a settled rule of international law. As well said

was

neighboring countries, and from tenderness to a poor and

by Sir James Mackintosh:

"ordered in council that all fishing vessels under Prussian and other

industrious order of people. This custom, so honorable to the

"In the present century, a slow and silent, but very substantial,

colors, and engaged for the purpose of catching fish and conveying

humanity of civilized nations, has fallen into disuse, and it is

mitigation has taken place in the practice of war, and in proportion as

them fresh to market, with their crews, cargoes, and stores, shall not

remarkable that both France and England mutually reproach each

that mitigated practice has received the sanction of time, it is raised

be molested on their fishing voyages and bringing the same to

other with that breach of good faith which has finally abolished it."

from the rank of mere usage and becomes part of the law of

market, and that no fishing vessels of this description shall hereafter

Wheaton, Captures, c. 2, 18.

nations."

be molested. And the Right Honorable the Lords Commissioners of

This statement clearly exhibits Wheaton's opinion that the custom

Discourse on the Law of Nations 38; 1 Miscellaneous Works, 360.

His Majesty's Treasury, the Lords Commissioners of the Admiralty,

had been a general one, as well as that it ought to remain so. His

The French prize tribunals, both before and after Lord Stowell's

and the Judge of the High Court of Admiralty, are to give the

assumption that it had been abolished by the differences between

decision, took a wholly different view of the general question. In

necessary directions herein as to them may respectively appertain."

France and England at the close of the last century was hardly

1780, as already mentioned, an order in council of Louis XVI had

5 C. Rob. 408. Again, in the order in council of May 2, 1810, which

justified by the state of things when he wrote, and has not since

declared illegal the capture by a French cruiser of The John and

directed that

been borne out.

Sarah, an English vessel coming from Holland, laden with fresh fish.

"all vessels which shall have cleared out from any port so far under

During the wars of the French Empire, as both French and English

And on May 17, 1801, where a Portuguese fishing vessel, with her

the control of France or her allies as that British vessels may not

writers agree, the coast fisheries were left in peace. 2 Ortolan 54;

De Boeck 193; Hall 148. De Boeck quaintly and truly adds, "and

the free exercise of their industry. 2 Ortolan (2d ed.) 49, note; (4th

"Fishing boats have also, as a general rule, been exempted from the

the incidents of 1800 and of 1801 had no morrow -- n'eurent pas de

ed.) 55; 4 Calvo (5th ed.) 2372; De Boeck 194; Hall (4th ed.)

effects of hostilities. As early as 1521, while war was raging between

lendemain."

148.

Charles V and Francis, ambassadors from these two sovereigns met

In the war with Mexico, in 1846, the United States recognized the

As qualifying the effect of those statements, the counsel for the

at Calais, then English, and agreed that, whereas the herring fishery

exemption of coast fishing boats from capture. In proof of this,

United States relied on a proclamation of Commodore Stockton,

was about to commence, the subjects of both belligerents engaged

counsel have referred to records of the Navy Department, which this

commanding the Pacific Squadron, dated August 20, 1846, directing

in this pursuit should be safe and unmolested by the other party, and

Court is clearly authorized to consult upon such a question. Jones v.

officers under his command to proceed immediately to blockade the

should have leave to fish as in time of peace. In the war of 1800, the

United States, 137 U. S. 202; Underhill v. Hernandez, 168 U. S.

ports of Mazatlan and San Blas, on the west coast of Mexico, and

British and French governments issued formal instructions

250, 168 U. S. 253.

saying to them,

exempting the fishing boats of each other's subjects from seizure.

By those records, it appears that Commodore Conner, commanding

"All neutral vessels that you may find there you will allow twenty days

This order was subsequently rescinded by the British government on

the Home Squadron blockading the east coast of Mexico, on May

to depart, and you will make the blockade absolute against all

the alleged ground that some French fishing boats were equipped as

14, 1846, wrote a letter from the ship Cumberland, off Brazos

vessels, except armed vessels of neutral nations. You will capture all

gunboats, and that some French fishermen who had been prisoners

Santiago, near the southern point of Texas, to Mr. Bancroft, the

vessels under the Mexican flag that you may be able to take."

in England had violated their parole not to serve, and had gone to

Secretary of the Navy, enclosing a copy of the commodore's

Navy Reports of 1846, pp. 673, 674. But there is nothing to show

join the French fleet at Brest. Such excuses were evidently mere

"instructions to the commanders of the vessels of the Home

that Commodore Stockton intended, or that the government

pretexts, and after some angry discussions had taken place on the

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

approved, the capture of coast fishing vessels.

subject, the British restriction was withdrawn and the freedom of

the Mexican ports," one of which was that "Mexican boats engaged

On the contrary, General Halleck, in the preface to his work on

fishing was again allowed on both sides. French writers consider this

in fishing on any part of the coast will be allowed to pursue their

International Law, or Rules Regulating the Intercourse of states in

exemption as an established principle of the modern law of war, and

labors unmolested," and that, on June 10, 1846, those instructions

Peace and War, published in 1861, says that he began that work

it has been so recognized in the French courts, which have restored

were approved by the Navy Department, of which Mr. Bancroft was

during the war between the United States and Mexico "while serving

such vessels when captured by French cruisers."

still the head, and continued to be until he was appointed Minister to

on the staff of the commander of the Pacific Squadron," and "often

Halleck (1st ed.) c. 20, 23.

Page 175 U. S. 697

required to give opinions on questions of international law growing

That edition was the only one sent out under the author's own

England in September following. Although Commodore Conner's

out of the operations of the war." Had the practice of the blockading

auspices except an abridgment, entitled "Elements of International

instructions and the Department's approval thereof do not appear in

squadron on the west coast of Mexico during that war, in regard to

Law and the Law of War," which he published in 1866, as he said in

any contemporary publication of the government, they evidently

fishing vessels, differed from that approved by the Navy Department

the preface, to supply a suitable textbook for instruction upon the

became generally known at the time, or soon after, for it is stated in

on the east coast, General Halleck could hardly have failed to

subject, "not only in our colleges, but also in our two great national

several treatises on international law (beginning with Ortolan's

mention it when stating the prevailing doctrine upon the subject as

schools -- the Military and Naval Academies." In that abridgment, the

second edition, published in 1853) that the United States in the

follows:

statement as to fishing boats was condensed as follows:

Mexican war permitted the coast fishermen of the enemy to continue

Page 175 U. S. 698

"Fishing boats have also, as a general rule, been exempted from the

Calvo 2372. And a Russian writer on prize law remarks that those

the beginning of its war with China in August, 1894, established

effects of hostilities. French writers consider this exemption as an

depredations,

prize courts and ordained that "the following enemy's vessels are

established principle of the modern law of war, and it has been so

"having brought ruin on poor fishermen and inoffensive traders,

exempt from detention," including in the exemption "boats engaged

recognized in the French courts, which have restored such vessels

could not but leave a painful impression on the minds of the

in coast fisheries," as well as "ships engaged exclusively on a

when captured by French cruisers."

population, without impairing in the least the resources of the

voyage of scientific discovery, philanthrophy, or religious mission."

Halleck's Elements, c. 20, 21.

Russian government."

Takahashi, International Law 11, 178.

In the treaty of peace between the United States and Mexico,

Katchenovsky (Pratt's ed.) 148. But the contemporaneous reports of

International law is part of our law, and must be ascertained and

Page 175 U. S. 699

the English naval officers put a different face on the matter by stating

administered by the courts of justice of appropriate jurisdiction as

in 1848, were inserted the very words of the earlier treaties with

that the destruction in question was part of a military measure,

often as questions of right depending upon it are duly presented for

Prussia, already quoted, forbidding the hostile molestation or seizure

conducted with the cooperation of the French ships, and pursuant to

their determination. For this purpose, where there is no treaty and no

in time of war of the persons, occupations, houses, or goods of

instructions of the English admiral

controlling executive or legislative act or judicial decision, resort

fishermen. 9 Stat. 939, 940.

"to clear the seaboard of all fish stores, all fisheries and mills, on a

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

Wharton's Digest of the International Law of the United States,

scale beyond the wants of the neighboring population, and indeed of

evidence of these, to the works of jurists and commentators who by

published by authority of Congress in 1886 and 1887, embodies

all things destined to contribute to the maintenance of the enemy's

years of labor, research, and experience have made themselves

General Halleck's fuller statement, above quoted, and contains

army in the Crimea,"

peculiarly well acquainted with the subjects of which they treat. Such

nothing else upon the subject. 3 Whart. Int.Law Dig. 345, p. 315; 2

and that the property destroyed consisted of large fishing

works are resorted to by judicial tribunals not for the speculations of

Halleck (Eng. eds. 1873 and 1878) p. 151.

establishments and storehouses of the Russian government,

their authors concerning what the law ought to be, but for trustworthy

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

numbers of heavy launches, and enormous quantities of nets and

evidence of what the law really is. Hilton v. Guyot, 159 U. S.

1859 and with Germany in 1870, by general orders, forbade her

gear, salted fish, corn,

113, 159 U. S. 163-164, 159 U. S. 214-215.

cruisers to trouble the coast fisheries or to seize any vessel or boat

Page 175 U. S. 700

Wheaton places among the principal sources international law

engaged therein unless naval or military operations should make it

and other provisions intended for the supply of the Russian army.

"text writers of authority, showing what is the approved usage of

necessary. Calvo, 2372; Hall, 148; 2 Ortolan (4th ed.) 449; 10

United Service Journal of 1855, pt. 3, pp. 108-112.

nations, or the general opinion respecting their mutual conduct, with

Revue de Droit Internationale (1878) 399.

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

the definitions and modifications introduced by general consent."

Calvo says that, in the Crimean War,

in favor of fishing vessels employed in catching and bringing to

As to these, he forcibly observes:

"notwithstanding her alliance with France and Italy, England did not

market fresh fish, no instance has been found in which the

"Without wishing to exaggerate the importance of these writers or to

follow the same line of conduct, and her cruisers in the Sea of Azof

exemption from capture of private coast fishing vessels honestly

substitute, in any case, their authority for the principles of reason, it

destroyed the fisheries, nets, fishing implements, provisions, boats,

pursuing their peaceful industry has been denied by England or by

may be affirmed that they are generally

and even the cabins of the inhabitants of the coast."

any other nation. And the Empire of Japan (the last state admitted

Page 175 U. S. 701

into the rank of civilized nations), by an ordinance promulgated at

impartial in their judgment. They are witnesses of the sentiments

De Cussy, in his work on the Phases and Leading cases of the

rule that the vessels and cargoes of subjects of the enemy are lawful

and usages of civilized nations, and the weight of their testimony

Maritime Law of Nations -- Phases et Causes Celebres du Droit

prize, says:

increases every time that their authority is invoked by statesmen,

Maritime des Nations -- published in 1856, affirms in the clearest

"Nevertheless, custom admits an exception in favor of boats

and every year that passes without the rules laid down in their works

language the exemption from capture of fishing boats, saying, in lib.

engaged in the coast fishery; these boats, as well as their crews, are

being impugned by the avowal of contrary principles."

1, Tit. 3, 36, that

free from capture and exempt from all hostilities. The coast-fishing

Wheaton, International Law (8th ed.), 15.

"in time of war, the freedom of fishing is respected by belligerents;

industry is, in truth, wholly pacific, and of much less importance in

Chancellor Kent says:

fishing boats are considered as neutral; in law, as in principle, they

regard to the national wealth that it may produce than maritime

"In the absence of higher and more authoritative sanctions, the

are not subject either to capture or to confiscation,"

commerce or the great fisheries. Peaceful and wholly inoffensive,

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

and that in lib. 2, c. 20, he will state "several facts and several

those who carry it on, among whom women are often seen, may be

the writings of distinguished jurists are regarded as of great

decisions

called the harvesters of the territorial seas, since they confine

consideration on questions not settled by conventional law. In cases

Page 175 U. S. 702

themselves to gathering in the products thereof; they are for the

where the principal jurists agree, the presumption will be very great

which prove that the perfect freedom and neutrality of fishing boats

most part poor families who seek in this calling hardly more than the

in favor of the solidity of their maxims, and no civilized nation that

are not illusory." 1 De Cussy, p. 291. And in the chapter so referred

means of gaining their livelihood."

does not arrogantly set all ordinary law and justice at defiance will

to, entitled De la Liberte et de la Neutralite Parfaite de la

2 Ortolan 51. Again, after observing that there are very few solemn

venture to disregard the uniform sense of the established writers on

Peche, besides references to the edicts and decisions in France

public treaties which make mention of the immunity of fishing boats

international law."

during the French Revolution, is this general statement:

in time of war, he says:

1 Kent, Com. 18.

"If one consulted only positive international law -- 1e droit des gens

"From another point of view, the custom which sanctions this

It will be convenient, in the first place, to refer to some leading

positif -- [by which is evidently meant international law expressed in

immunity is not so general that it can be considered as making an

French treatises on international law, which deal with the question

treaties, decrees, or other public acts, as distinguished from what

absolute international rule; but it has been so often put in practice,

now before us, not as one of the law of France only, but as one

may be implied from custom or usage], fishing boats would be

and, besides, it accords so well with the rule in use in wars on

determined by the general consent of civilized nations.

subject, like all other trading vessels, to the law of prize; a sort of

Page 175 U. S. 703

"Enemy ships," say Pistoye and Duverdy, in their Treatise on

tacit agreement among all European nations frees them from it, and

land, in regard to peasants and husbandmen, to whom coast

Maritime Prizes, published in 1855,

several official declarations have confirmed this privilege in favor of

fishermen may be likened, that it will doubtless continue to be

"are good prize. Not all, however, for it results from the unanimous

'a class of men whose hard and ill rewarded labor, commonly

followed in maritime wars to come."

accord of the maritime powers that an exception should be made in

performed by feeble and aged hands, is so foreign to the operations

2 Ortolan 55.

favor of coast fishermen. Such fishermen are respected by the

of war.'"

No international jurist of the present day has a wider or more

enemy so long as they devote themselves exclusively to fishing."

2 De Cussy 164, 165.

deserved reputation than Calvo, who, though writing in French, is a

1 Pistoye et Duverdy, Tit. 6, c. 1, p. 314.

Ortolan, in the fourth edition of his Regles Internationales et

citizen of the Argentine Republic employed in its diplomatic service

Diplomatie de la Mer, published in 1864, after stating the general

abroad. In the fifth edition of his great work on international law,

published in 1896, he observes, in 2366, that the international

Page 175 U. S. 704

"It is to be observed that very few treatises sanction in due form this

authority of decisions in particular cases by the prize courts of

what he calls the great fishery, for cod, whales, or seals, as follows:

immunity of the coast fishery. . . . There is, then, only a custom. But

France, of England, and of the United States is lessened by the fact

"The privilege of exemption from capture, which is generally

what is its character? Is it so fixed and general that it can be raised

that the principles on which they are based are largely derived from

acquired by fishing vessels plying their industry near the coasts, is

to the rank of a positive and formal rule of international law?"

the internal legislation of each country, and yet the peculiar

not extended in any country to ships employed on the high sea in

After discussing the statements of other writers, he approves the

character of maritime wars, with other considerations, gives to prize

what is called the great fishery, such as that for the cod, for the

opinion of Ortolan (as expressed in the last sentence above quoted

jurisprudence a force and importance reaching beyond the limits of

whale or the sperm whale, or for the seal or sea calf. These ships

from his work) and says that, at bottom, it differs by a shade only

the country in which it has prevailed. He therefore proposes here to

are, in effect, considered as devoted to operations which are at once

from that formulated by Calvo and by some of the German jurists,

group together a number of particular cases proper to serve as

commercial and industrial -- Ces navires sont en effect consideres

and that

precedents for the solution of grave questions of maritime law in

comme adonnes a des operations a la fois commerciales et

"it is more exact,

regard to the capture of private property as prize of war.

industrielles."

Page 175 U. S. 705

Immediately, in 2367, he goes on to say:

The distinction is generally recognized. 2 Ortolan 54; De Boeck

without ignoring the imperative character of the humane rule in

"Notwithstanding the hardships to which maritime wars subject

196; Hall, 148. See also The Susa, 2 C. Rob. 251; The

question -- elle est plus exacte, sans meconnaitre le caractere

private property, notwithstanding the extent of the recognized rights

Johan,Edw.Adm. 275, and appx. L.

imperatif de la regle d'humanite dont il s'agit."

of belligerents, there are generally exempted, from seizure and

The modern German books on international law, cited by the

And in 196 he defines the limits of the rule as follows:

capture, fishing vessels."

counsel for the appellants, treat the custom by which the vessels

"But the immunity of the coast fishery must be limited by the reasons

In the next section, he adds: "This exception is perfectly justiciable

and implements of coast fishermen are exempt from seizure and

which justify it. The reasons of humanity and of harmlessness --les

-- Cette exception est parfaitement justiciable" -- that is to say,

capture as well established by the practice of nations. Heffter 137;

raisons d'humanite et d'innocuite -- which militate in its favor do not

belonging to judicial jurisdiction or cognizance. Littre,

2 Kalterborn 237, p. 480; Bluntschli 667; Perels 37, p. 217.

exist in the great fishery, such as the cod fishery; ships engaged in

Dist. voc. Justiciable; Hans v. Louisiana, 134 U. S. 1, 134 U. S. 15.

De Boeck, in his work on Enemy Private Property under Enemy's

that fishery devote themselves to truly commercial operations, which

Calvo then quotes Ortolan's description, above cited, of the nature of

Flag -- De la Propriete Privee Ennemie sous Pavillon Ennemi --

employ a large number of seamen. And these same reasons cease

the coast-fishing industry, and proceeds to refer in detail to some of

published in 1882, and the only continental treatise cited by the

to be applicable to fishing vessels employed for a warlike purpose, to

the French precedents, to the acts of the French and English

counsel for the United States, says in 191:

those which conceal arms, or which exchange signals of intelligence

governments in the times of Louis XVI and of the French Revolution,

"A usage very ancient, if not universal, withdraws from the right of

with ships of war; but only those taken in the fact can be rigorously

to the position of the United States in the war with Mexico, and of

capture enemy vessels engaged in the coast fishery. The reason of

treated; to allow seizure by way of preventive would open the door to

France in later wars, and to the action of British cruisers in the

this exception is evident; it would have been too hard to snatch from

every abuse, and would be equivalent to a suppression of the

Crimean war. And he concludes his discussion of the subject, in

poor fishermen the means of earning their bread. . . . The exemption

immunity."

2373, by affirming the exemption of the coast fishery and pointing

includes the boats, the fishing implements, and the cargo of fish."

Two recent English text writers cited at the bar (influenced by what

out the distinction in this regard between the coast fishery and

Again, in 195:

Lord Stowell said a century since) hesitate to recognize that the

exemption of coast fishing vessels from capture has now become a

purposes, as were the smacks belonging to the northern ports of

"It remains to be added that the custom of all civilized peoples

settled rule of international law. Yet they both admit that there is little

France when Great Britain gave the order to capture them in 1800."

excludes from capture and from all kind of hostility the

real difference in the views, or in the practice, of England and of

But there are writers of various maritime countries not yet cited too

Page 175 U. S. 707

other maritime nations, and that no civilized nation at the present

important to be passed by without notice.

fishing vessels of the enemy's coasts, considering this industry as

day would molest coast fishing vessels so long as they were

Jan Helenus Ferguson, Netherlands Minister to China, and

absolutely inoffensive, and deserving, from its hardships and

peaceably pursuing their calling and there was no danger that they

previously in the naval and in the colonial service of his country, in

usefulness, of this favorable exception. It has been thus expressed

or their crews might be of military use to the enemy. Hall, in 148 of

his Manual of International Law for the Use of Navies, Colonies, and

in very many international conventions, so that it can be deemed an

the fourth edition of his Treatise on International Law, after briefly

Consulates, published in 1882, writes:

incontestable principle of law at least among enlightened nations."

sketching the history of the positions occupied by France and

"An exception to the usage of capturing enemy's private vessels at

Negrin, Tit. 3, c. 1, 310.

England at different periods, and by the United States in the Mexican

sea is the coast fishery. . . . This principle of immunity from capture

Carlos Testa, captain in the Portuguese Navy and professor in the

war, goes on to say:

of fishing boats is generally adopted by all maritime powers, and in

naval school at Lisbon, in his work on Public International Law,

"In the foregoing facts there is nothing to show that much real

actual warfare they are universally spared so long as they remain

published in French at Paris in 1886, when discussing the general

difference has existed in the practice of the maritime countries.

harmless."

right of capturing enemy ships, says:

England does not seem to have been unwilling to spare fishing

2 Ferguson 212.

"Nevertheless, in this, customary law establishes an exception of

vessels so long as they are harmless, and it does not appear that

Ferdinand Attlmayr, captain in the Austrian Navy, in his Manual for

immunity in favor of coast fishing vessels. Fishing is so peaceful an

any state has accorded them immunity under circumstances of

Naval Officers, published at Vienna in 1872 under the auspices of

industry, and is generally carried on by so poor and so hardworking

inconvenience to itself. It is likely that all nations would now refrain

Admiral Tegetthoff, says:

a class of men, that it is likened, in the territorial waters of the

from molesting them as a general rule, and would capture

"Regarding the capture of enemy property, an exception must be

enemy's country, to the class of husbandmen who gather the fruits

Page 175 U. S. 706

mentioned, which is a universal custom. Fishing vessels which

of the earth for their livelihood. The examples and practice generally

them so soon as any danger arose that they or their crews might be

belong to the adjacent coast, and whose business yields only a

followed establish this humane and beneficent exception as an

of military use to the enemy, and it is also likely that it is impossible

necessary livelihood, are, from considerations of humanity,

international rule, and this rule may be considered as adopted by

to grant them a more distinct exemption."

universally excluded from capture."

customary law and by all civilized nations."

So, T. J.Lawrence, in 206 of his Principles of International Law,

1 Attlmayr 61.

Testa, pt. 3, c. 2, in 18 Bibliotheque International et Diplomatique,

says:

Ignacio de Megrin, First Official of the Spanish Board of Admiralty, in

pp. 152, 153.

"The difference between the English and the French view is more

his Elementary Treatise on Maritime International Law, adopted by

No less clearly and decisively speaks the distinguished Italian jurist,

apparent than real, for no civilized belligerent would now capture the

royal order as a textbook in the naval schools of Spain and

Pasquale Fiore, in the enlarged edition of his exhaustive work on

boats of fishermen plying their avocation peaceably in the territorial

published at Madrid in 1873, concludes his chapter "Of the

Public International Law, published at Paris in 1885-1886, saying:

waters of their own state, and no jurist would seriously argue that

lawfulness of prizes" with these words:

"The vessels of fishermen have been generally declared exempt

their immunity must be respected if they were used for warlike

from confiscation because of the eminently peaceful object of their

humble industry and of the principles of equity and humanity. The

The exemption, of course, does not apply to coast fishermen or their

Scotia, and, with her cargo, condemned as lawful prize by the court

exemption includes the vessel, the implements of fishing, and the

vessels if employed for a warlike purpose, or in such a way as to

of vice admiralty there. But a petition for the restitution of a case of

cargo resulting from the fishery. This usage, eminently humane,

give aid or information to the enemy, nor when military or naval

paintings and engravings which had been presented to and were

goes back to very ancient times, and although the immunity of the

operations create a necessity to which all private interests must give

owned by the Academy of Arts in Philadelphia was granted by Dr.

fishery along the coasts may not have been sanctioned by treaties,

way.

Croke, the judge of that court, who said:

yet it is considered today as so definitely established that the

Nor has the exemption been extended to ships or vessels employed

"The same law of nations which prescribes that all property

inviolability of vessels devoted to that fishery is proclaimed by the

on the high sea in taking whales or seals or cod or other fish which

belonging to the enemy shall be liable to confiscation has likewise its

publicists as a positive rule of international law, and is generally

are not brought fresh to market, but are salted or otherwise cured

modifications and relaxations of that rule. The arts and sciences are

respected by the nations. Consequently we shall lay down the

and made a regular article of commerce.

admitted amongst all civilized nations as forming an exception to the

following rule: (a) vessels belonging to citizens of the enemy state,

This rule of international law is one which prize courts administering

severe rights of warfare, and as entitled to favor and protection. They

and devoted to fishing

the law of nations are bound to take judicial notice of, and to give

are considered not as the peculium of this or of that nation, but as

Page 175 U. S. 708

effect to, in the absence of any treaty or other public act of their own

the property of mankind at large, and as belonging to the common

along the coasts, cannot be subject to capture; (b) such vessels,

government in relation to the matter.

interests of the whole species."

however, will lose all right of exemption when employed for a warlike

Calvo, in a passage already quoted, distinctly affirms that the

And he added that there had been "innumerable cases of the mutual

purpose; (c) there may nevertheless be subjected to capture vessels

exemption of coast fishing vessels from capture is perfectly

exercise of this courtesy between nations in former wars." The

devoted to the great fishery in the ocean, such as those employed in

justiciable, or, in other words, of judicial jurisdiction or cognizance.

Marquis de Somerueles, Stewart Adm. (Nova Scotia) 445, 482.

the whale fishery, or in that for seals or sea calves."

Calvo 2368. Nor are judicial precedents wanting in support of the

In 1861, during the war of the Rebellion, a similar decision was

3 Fiore 1421.

view that this exemption, or a somewhat analogous one, should be

made in the District Court of the United States for the Eastern

This review of the precedents and authorities on the subject appears

recognized and declared by a prize court.

District of Pennsylvania in regard to two cases of books belonging

to us abundantly to demonstrate that, at the present day, by the

Page 175 U. S. 709

and consigned to a university in North Carolina. Judge Cadwalader,

general consent of the civilized nations of the world, and

By the practice of all civilized nations, vessels employed only for the

in ordering these books to be liberated from the custody of the

independently of any express treaty or other public act, it is an

purposes of discovery or science are considered as exempt from the

marshal and restored to the agent of the university, said:

established rule of international law, founded on considerations of

contingencies of war, and therefore not subject to capture. It has

"Though this claimant, as the resident of a hostile district, would not

humanity to a poor and industrious order of men, and of the mutual

been usual for the government sending out such an expedition to

be entitled to restitution of the subject of a commercial adventure in

convenience of belligerent states, that coast fishing vessels, with

give notice to other powers, but it is not essential. 1 Kent, Com. 91,

books, the purpose of the shipment in question gives to it a different

their implements and supplies, cargoes and crews, unarmed and

note; Halleck, c. 20, 22; Calvo 2376; Hall 138.

Page 175 U. S. 710

honestly pursuing their peaceful calling of catching and bringing in

In 1813, while the United States were at war with England, an

character. The United States, in prosecuting hostilities for the

fresh fish, are exempt from capture as prize of war.

American vessel on her voyage from Italy to the United States was

restoration of their constitutional authority, are compelled incidentally

captured by an English ship, and brought into Halifax, in Nova

to confiscate property captured at sea, of which the proceeds would

otherwise increase the wealth of that district. But the United States

revives on the restoration of peace, would seem to prove that war is

navigation, or in the ordinances of maritime states, or in both, it has

are not at war with literature in that part of their territory."

not an absolute confiscation of this property, but simply confers the

become the law of the sea only by the concurrent sanction of those

He then referred to the decision in Nova Scotia, and to the French

right of confiscation,"

nations who may be said to constitute the commercial world. Many

decisions upon cases of fishing vessels, as precedents for the

and again:

of the usages which prevail, and which have the force of law,

decree which he was about to pronounce, and he added that,

"The modern rule, then, would seem to be that tangible property

doubtless originated in the positive prescriptions of some single

without any such precedents, he should have had no difficulty in

Page 175 U. S. 711

state, which were at first of limited effect, but which, when generally

liberating these books. The Amelia, 4 Philadelphia 417.

belonging to an enemy, and found in the country at the

accepted, became of universal obligation."

In Brown v. United States, 8 Cranch 110, there are expressions of

commencement of war, ought not to be immediately confiscated,

"This is not giving to the statutes of any nation extraterritorial effect.

Chief Justice Marshall which, taken by themselves, might seem

and in almost every commercial treaty, an article is inserted

It is not treating them as general maritime laws, but it is recognition

inconsistent with the position above maintained, of the duty of a

stipulating for the right to withdraw such property."

of the historical fact that, by common consent of mankind these rules

prize court to take judicial notice of a rule of international law,

8 Cranch 12 U. S. 123-125. The decision that enemy property on

have been acquiesced in as of general obligation. Of that fact we

established by the general usage of civilized nations, as to the kind

land, which by the modern usage of nations is not subject to capture

think we may take judicial notice. Foreign municipal laws

of property subject to capture. But the actual decision in that case,

as prize of war, cannot be condemned by a prize court, even by

Page 175 U. S. 712

and the leading reasons on which it was based, appear to us rather

direction of the Executive, without express authority from Congress

must indeed be proved as facts, but it is not so with the law of

to confirm our position. The principal question there was whether

appears to us to repel any inference that coast fishing vessels, which

nations."

personal property of a British subject, found on land in the United

are exempt by the general consent of civilized nations from capture

The Scotia, 14 Wall. 170, 81 U. S. 187-188.

States at the beginning of the last war with Great Britain, could

and which no act of Congress or order of the President has

The position taken by the United States during the recent war with

lawfully be condemned as enemy's property on a libel filed by the

expressly authorized to be taken and confiscated, must be

Spain was quite in accord with the rule of international law, now

attorney of the United States, without a positive act of Congress. The

condemned by a prize court for want of a distinct exemption in a

generally recognized by civilized nations, in regard to coast fishing

conclusion of the Court was

treaty or other public act of the government.

vessels.

"that the power of confiscating enemy property is in the legislature,

To this subject in more than one aspect are singularly applicable the

On April 21, 1898, the Secretary of the Navy gave instructions to

and that the legislature has not yet declared its will to confiscate

words uttered by Mr. Justice Strong, speaking for this Court:

Admiral Sampson, commanding the North Atlantic Squadron, to

property which was within our territory at the declaration of war."

"Undoubtedly no single nation can change the law of the sea. The

"immediately institute a blockade of the north coast of Cuba,

8 Cranch 12 U. S. 129. In showing that the declaration of war did

law is of universal obligation, and no statute of one or two nations

extending from Cardenas on the east to Bahia Honda on the west."

not, of itself, vest the Executive with authority to order such property

can create obligations for the world. Like all the laws of nations, it

Bureau of Navigation Report of 1898, appx. 175. The blockade was

to be confiscated, the Chief Justice relied on the modern usages of

rests upon the common consent of civilized communities. It is of

immediately instituted accordingly. On April 22, the President issued

nations, saying:

force not because it was prescribed by any superior power, but

a proclamation declaring that the United States had instituted and

"The universal practice of forbearing to seize and confiscate debts

because it has been generally accepted as a rule of conduct.

would maintain that blockade "in pursuance of the laws of the United

and credits, the principle universally received that the right to them

Whatever may have been its origin, whether in the usages of

States, and the law of nations applicable to such cases." 30 Stat.

1769. And by the act of Congress of April 25, 1898, c. 189, it was

To that communication the Secretary of the Navy, on April 30, 1898,

Page 175 U. S. 714

declared that the war between the United States and Spain existed

guardedly answered:

whatever of likelihood that she or her crew would aid the enemy.

on that day, and had existed since and including April 21, 30 Stat.

"Spanish fishing vessels attempting to violate blockade are subject,

In the case of the Lola, the only differences in the facts were that

364.

with crew, to capture, and any such vessel or crew considered likely

she was a schooner of 35 tons burden, and had a crew of six men,

On April 26, 1898, the President issued another proclamation which,

to aid enemy may be detained."

including the master; that, after leaving Havana and proceeding

after reciting the existence of the war as declared by Congress,

Bureau of Navigation Report of 1898, appx. 178. The admiral's

some two hundred miles along the coast of Cuba, she went on,

contained this further recital:

dispatch assumed that he was not authorized, without express order,

about one hundred miles farther, to the coast of Yucatan, and there

"It being desirable that such war should be conducted upon

to arrest coast fishermen peaceably pursuing their calling, and the

fished for eight days, and that, on her return, when near Bahia

principles in harmony with the present views of nations and

necessary implication and evident intent of the response of the Navy

Honda on the coast of Cuba, she was captured, with her cargo of

sanctioned by their recent practice."

Department were that Spanish coast fishing vessels and their crews

live fish, on April 27, 1898. These differences afford no ground for

This recital was followed by specific declarations of certain rules for

should not be interfered with so long as they neither attempted to

distinguishing the two cases.

the conduct of the war by sea, making no mention of fishing vessels.

violate the blockade nor were considered likely to aid the enemy.

Each vessel was of a moderate size, such as is not unusual in coast

30 Stat. 1770. But the proclamation clearly manifests the general

The Paquete Habana, as the record shows, was a fishing sloop of

fishing smacks, and was regularly engaged in fishing on the coast of

policy of the government to conduct the war in accordance with the

25 tons burden, sailing under the Spanish flag, running in and out of

Cuba. The crew of each were few in number, had no interest in the

principles of international law sanctioned by the recent practice of

Havana, and regularly engaged in fishing on the coast of Cuba. Her

vessel, and received, in return for their toil and enterprise, two-thirds

nations.

crew consisted of but three men, including the master, and,

of her catch, the other third going to her owner by way of

On April 28, 1898 (after the capture of the two fishing vessels now in

according to a common usage in coast fisheries, had no interest in

compensation for her use. Each vessel went out from Havana to her

question), Admiral Sampson telegraphed to the Secretary of the

the vessel, but were entitled to two-thirds of her catch, the other third

fishing ground and was captured when returning along the coast of

Navy as follows:

belonging to her Spanish owner, who, as well as the crew, resided in

Cuba. The cargo of each consisted of fresh fish, caught by her crew

"I find that a large number of fishing schooners are attempting to get

Havana. On her last voyage, she sailed from Havana along the coast

from the sea and kept alive on board. Although one of the vessels

into Havana from their fishing grounds near the Florida reefs and

of Cuba, about two hundred miles, and fished for twenty-five days off

extended her fishing trip across the Yucatan channel and fished on

coasts. They are generally manned by excellent seamen, belonging

the cape at the west end of the island, within the territorial waters of

the coast of Yucatan, we cannot doubt that each was engaged in the

Page 175 U. S. 713

Spain, and was going back to Havana with her cargo of live fish

coast fishery, and not in a commercial adventure, within the rule of

to the maritime inscription of Spain, who have already served in the

when she was captured by one of the blockading squadron on April

international law.

Spanish navy, and who are liable to further service. As these trained

25, 1898. She had no arms or ammunition on board; she had no

The two vessels and their cargoes were condemned by the district

men are naval reserves, most valuable to the Spaniards as

knowledge of the blockade, or even of the war, until she was

court as prize of war; the vessels were sold under its decrees, and it

artillerymen, either afloat or ashore, I recommend that they should

stopped by a blockading vessel; she made no attempt to run the

does not appear what became of the fresh fish of which their

be detained prisoners of war, and that I should be authorized to

blockade, and no resistance at the time of the capture; nor was there

cargoes consisted.

deliver them to the commanding officer of the army at Key West."

any evidence

Upon the facts proved in either case, it is the duty of this Court,

United States, 8 Cranch 110, 12 U. S. 128, and Chief Justice

the rule, the proclamation of April 26 must be read as if it contained

sitting as the highest prize court of the United States and

Marshall said:

the exemption in terms, or the exemption must be allowed because

administering the law of nations, to declare and adjudge that the

"This usage is a guide which the sovereign follows or abandons at

the capture of fishing vessels of this class was not specifically

capture was unlawful and without probable cause, and it is therefore,

his will. The rule, like other precepts of morality, of humanity, and

authorized.

in each case

even of wisdom, is addressed to the judgment of the sovereign, and

The preamble to the proclamation stated, it is true, that it was

Ordered, that the decree of the district court be reversed, and the

although it cannot be disregarded by him without obloquy, yet it may

desirable that the war "should be conducted upon principles in

proceeds of the sale of the vessel, together with the proceeds of any

be disregarded. The rule is in its nature flexible. It is subject to

harmony with the present views of nations and sanctioned by their

sale of her cargo, be restored to the claimant, with damages and

infinite modification. It is not an immutable rule of law, but depends

recent practice," but the reference was to the intention of the

costs.

on political considerations which may continually vary."

government "not to resort to privateering, but to adhere to the rules

Page 175 U. S. 715

The question in that case related to the confiscation of the property

of the Declaration of Paris," and the proclamation spoke for itself.

MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE

of the enemy on land within our own territory, and it was held that

The language of the preamble did not carry the exemption in terms,

HARLAN and MR. JUSTICE McKENNA, dissenting:

property so situated could not be confiscated without an act of

and the real question is whether it must be allowed because not

The district court held these vessels and their cargoes liable

Congress. The Chief Justice continued:

affirmatively withheld -- or, in other words, because such captures

because not "satisfied that, as a matter of law, without any

"Commercial nations in the situation of the United States have

were not in terms directed.

ordinance, treaty, or proclamation, fishing vessels of this class are

always a considerable quantity of property in the possession of their

These records show that the Spanish sloop Paquete Habana "was

exempt from seizure."

neighbors. When war breaks out, the question what shall be done

captured as a prize of war by the U.S.S. Castine" on April 25, and

This Court holds otherwise not because such exemption is to be

with enemy property in our country is a

"was delivered" by the Castine's commander "to Rear Admiral Wm.

found in any treaty, legislation, proclamation, or instruction granting

Page 175 U. S. 716

T. Sampson (commanding the North Atlantic Squadron)," and

it, but on the ground that the vessels were exempt by reason of an

question rather of policy than of law. The rule which we apply to the

thereupon "turned over" to a prize master with instructions to

established rule of international law applicable to them which it is the

property of our enemy will be applied by him to the property of our

proceed to Key West.

duty of the court to enforce.

citizens. Like all other questions of policy, it is proper for the

And that the Spanish schooner Lola "was captured as a prize of war

I am unable to conclude that there is any such established

consideration of a department which can modify it at will, not for the

by the U.S.S. Dolphin," April 27, and "was delivered" by

international rule, or that this Court can properly revise action which

consideration of a department which can pursue only the law as it is

theDolphin's commander "to Rear Admiral Wm. T. Sampson

must be treated as having been taken in the ordinary exercise of

written. It is proper for the consideration of the legislature, not of the

(commanding the North Atlantic Squadron)," and thereupon "turned

discretion in the conduct of war.

executive or judiciary."

over" to a prize master with instructions to proceed to Key West.

In cannot be maintained "that modern usage constitutes a rule which

This case involves the capture of enemy's property on the sea, and

Page 175 U. S. 717

acts directly upon the thing itself by its own force, and not through

executive action, and if the position that the alleged rule ex proprio

That the vessels were accordingly taken to Key West and there

the sovereign power." That position was disallowed in Brown v.

vigore limits the sovereign power in war be rejected, then I

libeled, and that the decrees of condemnation were entered against

understand the contention to be that by reason of the existence of

them May 30.

It is impossible to concede that the Admiral ratified these captures in

considerations of humanity to a poor and industrious order of men,

large tanks in which the fish taken were kept alive. They were owned

disregard of established international law and the proclamation, or

and of the mutual convenience of belligerent states, that coast

by citizens of Havana, and the owners and the masters and crew

that the President, if he had been of opinion that there was any

fishing vessels, with their implements and supplies,

were to be compensated by shares of the catch. One of them had

infraction of law or proclamation, would not have intervened prior to

Page 175 U. S. 718

been two hundred miles from Havana, off Cape San Antonio, for

condemnation.

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

twenty-five days, and the other for eight days off the coast of

The correspondence of April 28, 30, between the Admiral and the

calling of catching and bringing in of fresh fish, are exempt from

Yucatan. They belonged, in short, to the class of fishing or coasting

Secretary of the Navy, quoted from in the principal opinion, was

capture as prize of war."

vessels of from five to twenty tons burden, and from twenty tons

entirely consistent with the validity of the captures.

This, it is said, is a rule

upwards, which, when licensed or enrolled as prescribed by the

The question put by the Admiral related to the detention as prisoners

"which prize courts, administering the law of nations, are bound to

Revised Statutes, are declared to be vessels of the United States,

of war of the persons manning the fishing schooners "attempting to

take judicial notice of, and to give effect to, in the absence of treaty

and the shares of whose men, when the vessels are employed in

get into Havana." Noncombatants are not so detained except for

or other public act of their own government."

fishing, are regulated by statute. They were engaged in what were

special reasons. Sailors on board enemy's trading vessels are made

At the same time, it is admitted that the alleged exemption does not

substantially commercial ventures, and the mere fact that the fish

prisoners because of their fitness for immediate use on ships of war.

apply

were kept alive by contrivances

Therefore the Admiral pointed out the value of these fishing seamen

"to coast fishermen or their vessels if employed for a warlike purpose

Page 175 U. S. 719

to the enemy, and advised their detention. The Secretary replied that

or in such a way as to give aid or information to the enemy, nor when

for that purpose -- a practice of considerable antiquity -- did not

if the vessels referred to were "attempting to violate blockade," they

military or naval operations create a necessity to which all private

render them any the less an article of trade than if they had been

were subject "with crew" to capture, and also that they might be

interests must give way,"

brought in cured.

detained if "considered likely to aid enemy." The point was whether

and further that the exemption has not

I do not think that, under the circumstances, the considerations

these crews should be made prisoners of war. Of course, they would

"been extended to ships or vessels employed on the high sea in

which have operated to mitigate the evils of war in respect of

be liable to be if involved in the guilt of blockade running, and the

taking whales or seals, or cod or other fish which are not brought

individual harvesters of the soil can properly be invoked on behalf of

Secretary agreed that they might be on the other ground in the

fresh to market, but are salted or otherwise cured and made a

these hired vessels as being the implements of like harvesters of the

Admiral's discretion.

regular article of commerce."

sea. Not only so as to the owners, but as to the masters and crews.

All this was in accordance with the rules and usages of international

It will be perceived that the exceptions reduce the supposed rule to

The principle which exempts the husbandman and his instruments of

law, with which, whether in peace or war, the naval service has

very narrow limits, requiring a careful examination of the facts in

labor exempts the industry in which he is engaged, and is not

always been necessarily familiar.

order to ascertain its applicability, and the decision appears to me to

applicable in protection of the continuance of transactions of such

I come then to examine the proposition

go altogether too far in respect of dealing with captures directed or

character and extent as these.

"that at the present day, by the general consent of the civilized

ratified by the officer in command.

In truth, the exemption of fishing craft is essentially an act of grace,

nations of the world and independently of any express treaty or other

But were these two vessels within the alleged exemption? They were

and not a matter of right, and it is extended or denied as the

public act, it is an established rule of international law, founded on

of twenty-five and thirty-five tons burden, respectively. They carried

exigency is believed to demand.

It is, said Sir William Scott, "a rule of comity only, and not of legal

author, they possess the weight to be attributed to the official

hardships of war, at least to the extent that the seizure or destruction

decision."

imprimatur. Neither our treaties nor settled practice are opposed to

of enemy's property on sea need not be specifically authorized in

The modern view is thus expressed by Mr. Hall:

that conclusion.

order to be accomplished.

"England does not seem to have been unwilling to spare fishing

In view of the circumstances surrounding the breaking out of the

Being of opinion that these vessels were not exempt as matter of

vessels so long as they are harmless, and it does not appear that

Mexican war, Commodore Conner, commanding the Home

law, I am constrained to dissent from the opinion and judgment of

any state has accorded them immunity under circumstances of

Squadron, on May 14, 1846, directed his officers, in respect of

the Court, and my brothers HARLAN and McKENNA concur in this

inconvenience to itself. It is likely that all nations would now refrain

blockade, not to molest "Mexican boats engaged exclusively in

dissent.

from molesting them as a general rule, and would capture them so

fishing on any part of the coast," presumably small boats in proximity

FISHERIES

soon as any danger arose that they or their crews might be of

to the shore, while on the Pacific coast, Commodore Stockton, in the

military use to the enemy, and it is also likely that it is impossible to

succeeding August, ordered the capture of "all vessels under the

grant them a more distinct exemption."

Mexican flag."

In the Crimean war, 1854-55, none of the orders in council, in terms,

The treaties with Prussia of 1785, 1799, and 1828, and of 1848 with

either exempted or included fishing vessels, yet the allied squadrons

Mexico, in exempting fishermen, "unarmed and inhabiting unfortified

swept the Sea of Azof of all craft capable of furnishing the means of

towns, villages, or places," did not exempt fishing vessels from

transportation, and the English admiral in the Gulf of Finland

seizure as prize, and these captures evidence the convictions

fjords and bays, dotted with countless islands, islets and reefs

directed the destruction of all Russian coasting vessels not of

entertained and acted on in the late war with Spain.

(certain of which form a continuous archipelago known as

sufficient value to be detained as prizes except "boats or small craft

In is needless to review the speculations and repetitions of the

the skjaergaard, "rock rampart"), the coast does not constitute, as it

which may be found empty at anchor, and not trafficking."

writers on international law. Ortolan, De Boeck, and others admit

does in practically all other countries in the world a clear dividing line

It is difficult to conceive of a law of the sea of universal obligation to

that the custom relied on as consecrating the immunity is not so

between land and sea. The land configuration stretches out into the

which Great Britain has not acceded. And I

general as to create an absolute international rule; Heffter, Calvo,

sea and what really constitutes the Norwegian coastline is the outer

Page 175 U. S. 720

and others are to the contrary. Their lucubrations may be

line of the land formations viewed as a whole. Along the coastal

am not aware of adequate foundation for imputing to this country the

persuasive, but not authoritative.

zone are situated shallow banks which are very rich in fish. These

adoption of any other than the English rule.

In my judgment, the rule is that exemption from the rigors of war is in

In his lectures on International Law at the Naval Law College, the

the control of the Executive. He is bound by no immutable rule on

late Dr. Freeman Snow laid it down that the exemption could not be

the subject. It is for him to apply, or to modify, or to deny altogether

asserted as a rule of international law. These lectures were edited by

such immunity as may have been usually extended.

Commodore Stockton and published under the direction of the

Page 175 U. S. 721

Secretary of the Navy in 1895, and, by that department, in a second

Exemptions may be designated in advance or granted according to

edition, in 1898, so that in addition to the well known merits of their

circumstances, but carrying on war involves the infliction of the

The situation which gave rise to the dispute and the facts which
preceded the filing of the British Application are recalled in the
Judgment. The coastal zone concerned in the dispute is of a
distinctive configuration. Its length as the crow flies exceeds 1,500
kilometers. Mountainous along its whole length, very broken by

have been exploited from time immemorial by the inhabitants of the

mainland and of the islands: they derive their livelihood essentially
from such fishing. In past centuries British fisherman had made
incursions in the waters near the Norwegian coast. As a result of
complaints from the King of Norway, they abstained from doing so at
the beginning of the 17th century and for 300 years. But in 1906
British vessels appeared again. These were trawlers equipped with
improved and powerful gear. The local population became

perturbed, and measures were taken by Norway with a view to

other JudgesSir Arnold McNair and Mr. J. E. Readappended to

specifying the limits within which fishing was prohibited to foreigners.

the Judgment statements of their dissenting Opinions.

Incidents occurred, became more and more frequent, and on July

12, 1935 the Norwegian Government delimited the Norwegian

NICARAGUa

In its Judgment of 26 November 1984 the Court found, on the basis of

Article 79, paragraph 7, of the Rules of Court, that the objection to
jurisdiction based on the reservation raised "a question concerning matters
of substance relating to the merits of the case" and that the objection did
"not possess, in the circumstances of the case, an exclusively preliminary
character". Since it contained both preliminary aspects and other aspects
relating to the merits, it had to be dealt with at the stage of the merits.

fisheries zone by Decree. Negotiations had been entered into by the

two Governments; they were pursued after the Decree was enacted,
but without success. A considerable number of British trawlers were
arrested and condemned in 1948 and 1949. It was then that the
United Kingdom Government instituted proceedings before the
Court.
Facts[edit]

On 24 September 1949, the UK requested that the International

Court of Justice determine how far Norway's territorial claim
extended to sea, and to award the UK damages in compensation for
Norwegian interference with UK fishing vessels in the disputed
waters, claiming that Norway's claim to such an extent of waters

The Court recalls that subsequent to the delivery of its Judgment of 26

November 1984 on the jurisdiction of the Court and the admissibility of
Nicaragua's Application, the United States decided not to take part in the
present phase of the proceedings. This however does not prevent the Court
from giving a decision in the case, but it has to do so while respecting the
requirements of Article 53 of the Statute, which provides for the situation
when one of the parties does not appear. The Court's jurisdiction being
established, it has in accordance with Article 53 to satisfy itself that the
claim of the party appearing is well founded in fact and law. In this respect
the Court recalls certain guiding principles brought out in a number of
previous cases, one of which excludes any possibility of a judgment
automatically in favour of the party appearing. It also observes that it is
valuable for the Court to know the views of the non-appearing party, even
if those views are expressed in ways not provided for in the Rules of Court.
The principle of the equality of the parties has to remain the basic principle,
and the Court has to ensure that the party which declines to appear should
not be permitted to profit from its absence.
IV. Justiciability of the dispute (paras. 32-35)

was against international law.

Judgment[edit]

On 18 December 1951, the ICJ decided that Norway's claims to the

waters were not inconsistent with international laws concerning the
ownership of local sea-space.

The Court considers it appropriate to deal with a preliminary question. It

has been suggested that the questions of the use of force and collective selfdefence raised in the case fall outside the limits of the kind of questions the
Court can deal with, in other words that they are not justiciable. However,
in the first place the Parties have not argued that the present dispute is not a
"legal dispute" within the meaning of Article 36, paragraph 2, of the
Statute, and secondly, the Court considers that the case does not necessarily
involve it in evaluation of political or military matters, which would be to
overstep proper judicial bounds. Consequently, it is equipped to determine
these problems.

The Court found that neither the method employed for the
delimitation by the Decree, nor the lines themselves fixed by the
said Decree, are contrary to international law; the first finding being
adopted by ten votes to two, and the second by eight votes to four.

V. The significance of the multilateral treaty reservation (paras. 36-56)

The United States declaration of acceptance of the compulsory jurisdiction
of the Court under Article 36, paragraph 2, of the Statute contained a
reservation excluding from operation of the declaration

Three Judges MM. Alvarez, Hackworth and Hsu Mo appended to

the Judgment a declaration or an individual opinion stating the
particular reasons for which they reached their conclusions; two

"disputes arising under a multilateral treaty, unless (1) all parties to the
treaty affected by the decision are also parties to the case before the Court,
or (2) the United States of America specially agrees to jurisdiction".

In order to establish whether its jurisdiction were limited by the effect of

the reservation in question, the Court has to ascertain whether any third
States, parties to the four multilateral treaties invoked by Nicaragua, and
not parties to the proceedings, would be "affected" by the Judgment. Of
these treaties, the Court considers it sufficient to examine the position
under the United Nations Charter and the Charter of the Organization of
American States.
The Court examines the impact of the multilateral treaty reservation on
Nicaragua's claim that the United States has used force in breach of the two
Charters. The Court examines in particular the case of El Salvador, for
whose benefit primarily the United States claims to be exercising the right
of collective self-defence which it regards as a justification of its own
conduct towards Nicaragua, that right being endorsed by the United
Nations Charter (Art. 51) and the OAS Charter (Art. 21). The dispute is to
this extent a dispute "arising under" multilateral treaties to which the
United States, Nicaragua and El Salvador are Parties. It appears clear to the
Court that El Salvador would be "affected" by the Court's decision on the
lawfulness of resort by the United States to collective self-defence.
As to Nicaragua's claim that the United States has intervened in its affairs
contrary to the OAS Charter (Art. 18) the Court observes that it is
impossible to say that a ruling on the alleged breach of the Charter by the
United States would not "affect" El Salvador.
Having thus found that El Salvador would be "affected" by the decision
that the Court would have to take on the claims of Nicaragua based on
violation of the two Charters by the United States, the Court concludes that
the jurisdiction conferred on it by the United States declaration does not
permit it to entertain these claims. It makes it clear that the effect of the
reservation is confined to barring the applicability of these two multilateral
treaties as multilateral treaty law, and has no further impact on the sources
of international law which Article 38 of the Statute requires the Court to
apply, including customary international law.
VI. Establishment of the facts: evidence and methods employed by the
Court (paras. 57-74)
The Court has had to determine the facts relevant to the dispute. The
difficulty of its task derived from the marked disagreement between the

Parties, the non-appearance of the Respondent, the secrecy surrounding

certain conduct, and the fact that the conflict is continuing. On this last
point, the Court takes the view, in accordance with the general principles as
to the judicial process, that the facts to be taken into account should be
those occurring up to the close of the oral proceedings on the merits of the
case (end of September 1985).
With regard to the production of evidence, the Court indicates how the
requirements of its Statute - in particular Article 53 - and the Rules of Court
have to be met in the case, on the basis that the Court has freedom in
estimating the value of the various elements of evidence. It has not seen fit
to order an enquiry under Article 50 of the Statute. With regard to
certain documentary material (press articles and various books), the Court
has treated these with caution. It regards than not as evidence capable of
proving facts, but as material which can nevertheless contribute to
corroborating the existence of a fact and be taken into account to show
whether certain facts are matters of public knowledge. With regard
tostatements by representatives of States, sometimes at the highest level,
the Court takes the view that such statements are of particular probative
value when they acknowledge facts or conduct unfavourable to the State
represented by the person who made them. With regard to the evidence of
witnesses presented by Nicaragua - five witnesses gave oral evidence and
another a written affidavit-one consequence of the absence of the
Respondent was that the evidence of the witnesses was not tested by crossexamination. The Court has not treated as evidence any part of the
testimony which was a mere expression of opinion as to the probability or
otherwise of the existence of a fact not directly known to the witness. With
regard in particular to affidavits and sworn statements made by members of
a Government, the Court considers that it can certainly retain such parts of
this evidence as may be regarded as contrary to the interests or contentions
of the State to which the witness has allegiance; for the rest such evidence
has to be treated with great reserve.
The Court is also aware of a publication of the United States State
Department entitled "Revolution Beyond Our Borders, Sandinista
Intervention in Central America" which was not submitted to the Court in
any form or manner contemplated by the Statute and Rules of Court. The
Court considers that, in view of the special circumstances of this case, it
may, within limits, make use of information in that publication.
VII. The facts imputable to the United States (paras. 75 to 125)
1. The Court examines the allegations of Nicaragua that the mining of
Nicaraguan ports or waters was carried out by United States military
personnel or persons of the nationality of Latin American countries in the
pay of the United States. After examining the facts, the Court finds it
established that, on a date in late 1983 or early 1984, the President of the
United States authorized a United States Government agency to lay mines
in Nicaraguan ports, that in early 1984 mines were laid in or close to the

ports of El Bluff, Corinto and Puerto Sandino, either in Nicaraguan internal

waters or in its territorial sea or both, by persons in the pay and acting on
the instructions of that agency, under the supervision and with the logistic
support of United States agents; that neither before the laying of the mines,
nor subsequently, did the United States Government issue any public and
official warning to international shipping of the existence and location of
the mines; and that personal and material injury was caused by the
explosion of the mines, which also created risks causing a rise in marine
insurance rates.
2. Nicaragua attributes to the direct action of United States personnel, or
persons in its pay, operations against oil installations, a naval base,
etc.,listed in paragraph 81 of the Judgment. The Court finds all these
incidents, except three, to be established. Although it is not proved that any
United States military personnel took a direct part in the operations, United
States agents participated in the planning, direction and support. The
imputability to the United States of these attacks appears therefore to the
Court to be established.
3. Nicaragua complains of infringement of its air space by United States
military aircraft. After indicating the evidence available, the Court finds
that the only violations of Nicaraguan air space imputable to the United
States on the basis of the evidence are high altitude reconnaissance flights
and low altitude flights on 7 to 11 November 1984 causing "sonic booms".
With regard to joint military manoeuvres with Honduras carried out by the
United States on Honduran territory near the Honduras/Nicaragua frontier,
the Court considers that they may be treated as public knowledge and thus
sufficiently established.
4. The Court then examines the genesis, development and activities of the
contra force, and the role of the United States in relation to it. According to
Nicaragua, the United States "conceived, created and organized a
mercenary army, the contra force". On the basis of the available
information, the Court is not able to satisfy itself that the Respondent State
"created" the contra force in Nicaragua, but holds it established that it
largely financed, trained, equipped, armed and organized the FDN, one
element of the force.
It is claimed by Nicaragua that the United States Government devised the
strategy and directed the tactics of the contra force, and provided direct
combat support for its military operations. In the light of the evidence and
material available to it, the Court is not satisfied that all the operations
launched by the contra force, at every stage of the conflict, reflected
strategy and tactics solely devised by the United States. It therefore cannot
uphold the contention of Nicaragua on this point. The Court however finds
it clear that a number of operations were decided and planned, if not
actually by the United States advisers, then at least in close collaboration
with them, and on the basis of the intelligence and logistic support which

the United States was able to offer. It is also established in the Court's view
that the support of the United States for the activities of the contras took
various forms over the years, such as logistic support the supply of
information on the location and movements of the Sandinista troops, the
use of sophisticated methods of communication, etc. The evidence does not
however warrant a finding that the United States gave direct combat
support, if that is taken to mean direct intervention by United States combat
forces.
The Court has to determine whether the relationship of the contras to the
United States Government was such that it would be right to equate
thecontras, for legal purposes, with an organ of the United States
Government, or as acting on behalf of that Government. The Court
considers that the evidence available to it is insufficient to demonstrate the
total dependence of the contras on United States aid. A partial dependency,
the exact extent of which the Court cannot establish, may be inferred from
the fact that the leaders were selected by the United States, and from other
factors such as the organisation, training and equipping of the force,
planning of operations, the choosing of targets and the operational support
provided. There is no clear evidence that the United States actually
exercised such a degree of control as to justify treating the contras as acting
on its behalf.
5. Having reached the above conclusion, the Court takes the view that
the contras remain responsible for their acts, in particular the alleged
violations by them of humanitarian law. For the United States to be legally
responsible, it would have to be proved that that State had effective control
of the operations in the course of which the alleged violations were
committed.
6. Nicaragua has complained of certain measures of an economic
nature taken against it by the Government of the United States, which it
regards as an indirect form of intervention in its internal affairs. Economic
aid was suspended in January 1981, and terminated in April 1981; the
United States acted to oppose or block loans to Nicaragua by international
financial bodies; the sugar import quota from Nicaragua was reduced by 90
percent in September 1983; and a total trade embargo on Nicaragua was
declared by an executive order of the President of the United States on 1
May 1985.
VIII. The conduct of Nicaragua (paras. 126-171)
The Court has to ascertain, so far as possible, whether the activities of the
United States complained of, claimed to have been the exercise of
collective self-defence, may be justified by certain facts attributable to
Nicaragua.

1. The United States has contended that Nicaragua was actively supporting
armed groups operating in certain of the neighbouring
countries,particularly in El Salvador, and specifically in the form of
the supply of arms, an accusation which Nicaragua has repudiated. The
Court first examines the activity of Nicaragua with regard to El Salvador.

country" and "to call the first free elections our country has known in this
century". The United States considers that it has a special responsibility
regarding the implementation of these commitments.

Having examined various evidence, and taking account of a number of

concordant indications, many of which were provided by Nicaragua itself,
from which the Court can reasonably infer the provision of a certain
amount of aid from Nicaraguan territory, the Court concludes that support
for the armed opposition in El Salvador from Nicaraguan territory was a
fact up to the early months of 1981. Subsequently, evidence of military aid
from or through Nicaragua remains very weak, despite the deployment by
the United States in the region of extensive technical monitoring resources.
The Court cannot however conclude that no transport of or traffic in arms
existed. It merely takes note that the allegations of arms traffic are not
solidly established, and has not been able to satisfy itself that any
continuing flow on a significant scale took place after the early months of
1981.

The Court has reached the conclusion (section V, in fine) that it has to apply
the multilateral treaty reservation in the United States declaration, the
consequential exclusion of multilateral treaties being without prejudice
either to other treaties or other sources of law enumerated in Article 38 of
the Statute. In order to determine the law actually to be applied to the
dispute, it has to ascertain the consequences of the exclusion of the
applicability of the multilateral treaties for the definition of the content of
the customary international law which remains applicable.

Even supposing it were established that military aid was reaching the
armed opposition in El Salvador from the territory of Nicaragua, it skill
remains to be proved that such aid is imputable to the authorities of
Nicaragua, which has not sought to conceal the possibility of weapons
crossing its territory, but denies that this is the result of any deliberate
official policy on its part. Having regard to the circumstances
characterizing this part of Central America, the Court considers that it is
scarcely possible for Nicaragua's responsibility for arms traffic on its
territory to be automatically assumed. The Court considers it more
consistent with the probabilities to recognize that an activity of that nature,
if on a limited scale, may very well be pursued unknown to the territorial
government. In any event the evidence is insufficient to satisfy the Court
that the Government of Nicaragua was responsible for any flow of arms at
either period.
2. The United States has also accused Nicaragua of being responsible
for cross-border military attacks on Honduras and Costa Rica. While not as
fully informed on the question as it would wish to be, the Court considers
as established the fact that certain trans-border military incursions are
imputable to the Government of Nicaragua.
3. The Judgment recalls certain events which occurred at the time of the fall
of President Somoza, since reliance has been placed on them by the United
States to contend that the present Government of Nicaragua is in violation
of certain alleged assurances given by its immediate predecessor. The
Judgment refers in particular to the "Plan to secure peace" sent on 12 July
1979 by the "Junta of the Government of National Reconstruction" of
Nicaragua to the Secretary-General of the OAS, mentioning, inter
alia, its "firm intention to establish full observance of human rights in our

IX. The applicable law: customary international law (paras. 172-182)

The Court, which has already commented briefly on this subject in the
jurisdiction phase (I.C.J. Reports 1984, pp. 424 and 425, para. 73),
develops its initial remarks. It does not consider that it can be claimed, as
the United States does, that all the customary rules which may be invoked
have a content exactly identical to that of the rules contained in the treaties
which cannot be applied by virtue of the United States reservation. Even if
a treaty norm and a customary norm relevant to the present dispute were to
have exactly the same content, this would not be a reason for the Court to
take the view that the operation of the treaty process must necessarily
deprive the customary norm of its separate applicability. Consequently, the
Court is in no way bound to uphold customary rules only in so far as they
differ from the treaty rules which it is prevented by the United States
reservation from applying.
In response to an argument of the United States, the Court considers that
the divergence between the content of the customary norms and that of the
treaty law norms is not such that a judgment confined to the field of
customary international law would not be susceptible of compliance or
execution by the parties.
X. The content of the applicable law (paras. 183 to 225)
1. Introduction: general observations (paras. 183-186)
The Court has next to consider what are the rules of customary law
applicable to the present dispute. For this purpose it has to consider
whether a customary rule exists in the opinio juris of States,and satisfy
itself that it is confirmed by practice.
2. The prohibition of the use of force, and the right of self-defence (paras.
187 to 201)

The Court finds that both Parties take the view that the principles as to the
use of force incorporated in the United Nations Charter correspond, in
essentials, to those found in customary international law. They therefore
accept a treaty-law obligation to refrain in their international relations from
the threat or use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent with the
purposes of the United Nations (Art. 2, para. 4, of the Charter). The Court
has however to be satisfied that there exists in customary law an opinio
juris as to the binding character of such abstention. It considers that
this opinio juris may be deduced from, inter alia, the attitude of the Parties
and of States towards certain General Assembly resolutions, and
particularly resolution 2625 (XXV) entitled "Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among
States in Accordance with the Charter of the United Nations". Consent to
such resolutions is one of the forms of expression of an opinio juris with
regard to the principle of non-use of force, regarded as a principle of
customary international law, independently of the provisions, especially
those of an institutional kind, to which it is subject on the treaty-law plane
of the Charter.
The general rule prohibiting force established in customary law allows for
certain exceptions. The exception of the right of individual or collective
self-defence is also, in the view of States, established in customary law, as
is apparent for example from the terms of Article 51 of the United Nations
Charter, which refers to an "inherent right", and from the declaration in
resolution 2625 (XXV). The Parties, who consider the existence of this
right to be established as a matter of customary international law, agree in
holding that whether the response to an attack is lawful depends on the
observance of the criteria of the necessity and the proportionality of the
measures taken in self-defence.
Whether self-defence be individual or collective, it can only be exercised in
response to an "armed attack". In the view of the Court, this is to be
understood as meaning not merely action by regular armed forces across an
international border, but also the sending by a State of armed bands on to
the territory of another State, if such an operation, because of its scale and
effects, would have been classified as an armed attack had it been carried
out by regular armed forces. The Court quotes the definition of aggression
annexed to General Assembly resolution 3314 (XXIX) as expressing
customary law in this respect.
The Court does not believe that the concept of "armed attack" includes
assistance to rebels in the form of the provision of weapons or logistical or
other support. Furthermore, the Court finds that in customary international
law, whether of a general kind or that particular to the inter-American legal
system, there is no rule permitting the exercise of collective self-defence in
the absence of a request by the State which is a victim of the alleged attack,
this being additional to the requirement that the State in question should
have declared itself to have been attacked.

3. The principle of non-intervention (paras. 202 to 209)

The principle of non-intervention involves the right of every sovereign
State to conduct its affairs without outside interference. Expressions of
anopinio juris of States regarding the existence of this principle are
numerous. The Court notes that this principle, stated in its own
jurisprudence, has been reflected in numerous declarations and resolutions
adopted by international organizations and conferences in which the United
States and Nicaragua have participated. The text thereof testifies to the
acceptance by the United States and Nicaragua of a customary principle
which has universal application. As to the content of the principle in
customary law, the Court defines the constitutive elements which appear
relevant in this case: a prohibited intervention must be one bearing on
matters in which each State is permitted, by the principle of State
sovereignty, to decide freely (for example the choice of a political,
economic, social and cultural system, and formulation of foreign policy).
Intervention is wrongful when it uses, in regard to such choices, methods of
coercion, particularly force, either in the direct form of military action or in
the indirect form of support for subversive activities in another State.
With regard to the practice of States, the Court notes that there have been in
recent years a number of instances of foreign intervention in one State for
the benefit of forces opposed to the government of that State. It concludes
that the practice of States does not justify the view that any general right of
intervention in support of an opposition within another State exists in
contemporary international law; and this is in fact not asserted either by the
United States or by Nicaragua.
4. Collective counter-measures in response to conduct not amounting to
armed attack (paras. 210 and 211)
The Court then considers the question whether, if one State acts towards
another in breach of the principle of non-intervention, a third State may
lawfully take action by way of counter-measures which would amount to
an intervention in the first State's internal affairs. This would be analogous
to the right of self-defence in the case of armed attack, but the act giving
rise to the reaction would be less grave, not amounting to armed attack. In
the view of the Court, under international law in force today, States do not
have a right of "collective" armed response to acts which do not constitute
an "armed attack".

of access to ports is hindered by the laying of mines by another State, what

is infringed is the freedom of communications and of maritime commerce.

whether there are present any circumstances excluding the unlawfulness of

particular acts.

6. Humanitarian law (paras. 215 to 220)

1. The prohibition of the use of force and the right of self-defence (paras.
227 to 238)

The Court observes that the laying of mines in the waters of another State
without any warning or notification is not only an unlawful act but also a
breach of the principles of humanitarian law underlying the Hague
Convention No. VIII of 1907. This consideration leads the Court on to
examination of the international humanitarian law applicable to the dispute.
Nicaragua has not expressly invoked the provisions of international
humanitarian law as such, but has complained of acts committed on its
territory which would appear to be breaches thereof. In its submissions it
has accused the United States of having killed, wounded and kidnapped
citizens of Nicaragua. Since the evidence available is insufficient for the
purpose of attributing to the United States the acts committed by
the contras, the Court rejects this submission.
The question however remains of the law applicable to the acts of the
United States in relation to the activities of the contrast Although
Nicaragua has refrained from referring to the four Geneva Conventions of
12 August 1949, to which Nicaragua and the United States are parties, the
Court considers that the rules stated in Article 3, which is common to the
four Conventions, applying to armed conflicts of a non-international
character, should be applied. The United States is under an obligation to
"respect" the Conventions and even to "ensure respect" for them, and thus
not to encourage persons or groups engaged in the conflict in Nicaragua to
act in violation of the provisions of Article 3. This obligation derives from
the general principles of humanitarian law to which the Conventions
merely give specific expression.
7. The 1956 treaty (paras. 221 to 225)
In its Judgment of 26 November 1984, the Court concluded that it had
jurisdiction to entertain claims concerning the existence of a dispute
between the United States and Nicaragua as to the interpretation or
application of a number of articles of the treaty of Friendship, Commerce
and Navigation signed at Managua on 21 January 1956. It has to determine
the meaning of the various relevant provisions, and in particular of Article
XXI, paragraphs I (c) and I (d), by which the parties reserved the power to
derogate from the other provisions.

5. State sovereignty (paras. 212 to 214)

XI. Application of the law to the facts (paras. 226 to 282)
Turning to the principle of respect for State sovereignty, the Court recalls
that the concept of sovereignty, both in treaty-law and in customary
international law, extends to the internal waters and territorial sea of every
State and to the airspace above its territory. It notes that the laying of mines
necessarily affects the sovereignty of the coastal State, and that if the right

Having set out the facts of the case and the rules of international law which
appear to be in issue as a result of those facts, the Court has now to
appraise the facts in relation to the legal rules applicable, and determine

Appraising the facts first in the light of the principle of the non-use of
force, the Court considers that the laying of mines in early 1984 and certain
attacks on Nicaraguan ports, oil installations and naval bases, imputable to
the United States constitute infringements of this principle, unless justified
by circumstances which exclude their unlawfulness. It also considers that
the United States has committed a prima facie violation of the principle by
arming and training the contras, unless this can be justified as an exercise
of the right of self-defence.
On the other hand, it does not consider that military manoeuvres held by
the United States near the Nicaraguan borders, or the supply of funds to
the contras, amounts to a use of force.
The Court has to consider whether the acts which it regards as breaches of
the principle may be justified by the exercise of the right of collective selfdefence, and has therefore to establish whether the circumstances required
are present. For this, it would first have to find that Nicaragua engaged in
an armed attack against El Salvador, Honduras or Costa Rica, since only
such an attack could justify reliance on the right of self-defence. As regards
El Salvador, the Court considers that in customary international law the
provision of arms to the opposition in another State does not constitute an
armed attack on that State. As regards Honduras and Costa Rica, the Court
states that, in the absence of sufficient information as to the transborder
incursions into the territory of those two States from Nicaragua, it is
difficult to decide whether they amount, singly or collectively, to an armed
attack by Nicaragua. The Court finds that neither these incursions nor the
alleged supply of arms may be relied on as justifying the exercise of the
right of collective self-defence.
Secondly, in order to determine whether the United States was justified in
exercising self-defence, the Court has to ascertain whether the
circumstances required for the exercise of this right of collective selfdefence were present, and therefore considers whether the States in
question believed that they were the victims of an armed attack by
Nicaragua, and requested the assistance of the United States in the exercise
of collective self-defence. The Court has seen no evidence that the conduct
of those States was consistent with such a situation.
Finally, appraising the United States activity in relation to the criteria of
necessity and proportionality, the Court cannot find that the activities in
question were undertaken in the light of necessity, and finds that some of
them cannot be regarded as satisfying the criterion of proportionality.

Since the plea of collective self-defence advanced by the United States

cannot be upheld, it follows that the United States has violated the principle
prohibiting recourse to the threat or use of force by the acts referred to in
the first paragraph of this section.
2. The principle of non-intervention (paras. 239 to 245)
The Court finds it clearly established that the United States intended, by its
support of the contras, to coerce Nicaragua in respect of matters in which
each State is permitted to decide freely, and that the intention of
the contras themselves was to overthrow the present Government of
Nicaragua. It considers that if one State, with a view to the coercion of
another State, supports and assists armed bands in that State whose purpose
is to overthrow its government, that amounts to an intervention in its
internal affairs, whatever the political objective of the State giving support.
It therefore finds that the support given by the United States to the military
and paramilitary activities of the contras in Nicaragua, by financial
support, training, supply of weapons, intelligence and logistic support,
constitutes a clear breach of the principle of non-intervention.
Humanitarian aid on the other hand cannot be regarded as unlawful
intervention. With effect from 1 October 1984, the United States Congress
has restricted the use of funds to "humanitarian assistance" to
the contrast The Court recalls that if the provision of "humanitarian
assistance" is to escape condemnation as an intervention in the internal
affairs of another State, it must be limited to the purposes hallowed in the
practice of the Red Cross, and above all be given without discrimination.
With regard to the form of indirect intervention which Nicaragua sees in
the taking of certain action of an economic nature against it by the United
States, the Court is unable to regard such action in the present case as a
breach of the customary law principle of non-intervention.
3. Collective counter-measures in response to conduct not amounting to
armed attack (paras. 246 to 249)
Having found that intervention in the internal affairs of another State does
not produce an entitlement to take collective counter-measures involving
the use of force, the Court finds that the acts of which Nicaragua is
accused, even assuming them to have been established and imputable to
that State, could not justify counter-measures taken by a third State, the
United States, and particularly could not justify intervention involving the
use of force.
4. State sovereignty (paras. 250 to 253)
The Court finds that the assistance to the contras, the direct attacks on
Nicaraguan ports, oil installations, etc., the mining operations in
Nicaraguan ports, and the acts of intervention involving the use of force

referred to in the Judgment, which are already a breach of the principle of

non-use of force, are also an infringement of the principle of respect for
territorial sovereignty. This principle is also directly infringed by the
unauthorized overflight of Nicaraguan territory. These acts cannot be
justified by the activities in El Salvador attributed to Nicaragua; assuming
that such activities did in fact occur, they do not bring into effect any right
belonging to the United States. The Court also concludes that, in the
context of the present proceedings, the laying of mines in or near
Nicaraguan ports constitutes an infringement, to Nicaragua's detriment, of
the freedom of communications and of maritime commerce.
5. Humanitarian law (paras. 254 to 256)
The Court has found the United States responsible for the failure to give
notice of the mining of Nicaraguan ports.
It has also found that, under general principles of humanitarian law, the
United States was bound to refrain from encouragement of persons or
groups engaged in the conflict in Nicaragua to commit violations of
common Article 3 of the four Geneva Conventions of 12 August 1949. The
manual on "Psychological Operations in Guerrilla Warfare", for the
publication and dissemination of which the United States is responsible,
advises certain acts which cannot but be regarded as contrary to that article.
6. Other grounds mentioned in justification of the acts of the United
States (paras. 257 to 269)
The United States has linked its support to the contras with alleged
breaches by the Government of Nicaragua of certain solemn commitments
to the Nicaraguan people, the United States and the OAS. The Court
considers whether there is anything in the conduct of Nicaragua which
might legally warrant counter-measures by the United States in response to
the alleged violations. With reference to the "Plan to secure peace" put
forward by the Junta of the Government of National Reconstruction
(12 July 1979), the Court is unable to find anything in the documents and
communications transmitting the plan from which it can be inferred that
any legal undertaking was intended to exist. The Court cannot contemplate
the creation of a new rule opening up a right of intervention by one State
against another on the ground that the latter has opted for some particular
ideology or political system. Furthermore the Respondent has not advanced
a legal argument based on an alleged new principle of "ideological
intervention".
With regard more specifically to alleged violations of human rights relied
on by the United States, the Court considers that the use of force by the
United States could not be the appropriate method to monitor or ensure
respect for such rights, normally provided for in the applicable
conventions. With regard to the alleged militarization of Nicaragua, also

referred to by the United States to justify its activities, the Court observes
that in international law there are no rules, other than such rules as may be
accepted by the State concerned, by treaty or otherwise, whereby the level
of armaments of a sovereign State can be limited, and this principle is valid
for all States without exception.
7. The 1956 Treaty (paras. 270 to 282)
The Court turns to the claims of Nicaragua based on the Treaty of
Friendship, Commerce and Navigation of 1956, and the claim that the
United States has deprived the Treaty of its object and purpose and emptied
it of real content. The Court cannot however entertain these claims unless
the conduct complained of is not "measures . . . necessary to protect the
essential security interests" of the United States, since Article XXI of the
Treaty provides that the Treaty shall not preclude the application of such
measures. With regard to the question what activities of the United States
might have been such as to deprive the Treaty of its object and purpose, the
Court makes a distinction. It is unable to regard all the acts complained of
in that light, but considers that there are certain activities which undermine
the whole spirit of the agreement. These are the mining of Nicaraguan
ports, the direct attacks on ports, oil installations, etc., and the general trade
embargo.
The Court also upholds the contention that the mining of the ports is in
manifest contradiction with the freedom of navigation and commerce
guaranteed by Article XIX of the Treaty. It also concludes that the trade
embargo proclaimed on 1 May 1985 is contrary to that article.
The Court therefore finds that the United States is prima facie in breach of
an obligation not to deprive the 1956 Treaty of its object and purpose(pacta
sunt servanda), and has committed acts in contradiction with the terms of
the Treaty. The Court has however to consider whether the exception in
Article XXI concerning "measures . . . necessary to protect the essential
security interests" of a Party may be invoked to justify the acts complained
of. After examining the available material, particularly the Executive Order
of President Reagan of 1 May 1985, the Court finds that the mining of
Nicaraguan ports, and the direct attacks on ports and oil installations, and
the general trade embargo of 1 May 1985, cannot be justified as necessary
to protect the essential security interests of the United States.
XII. The claim for reparation (paras. 283 to 285)
The Court is requested to adjudge and declare that compensation is due to
Nicaragua, the quantum thereof to be fixed subsequently, and to award to
Nicaragua the sum of 370.2 million US dollars as an interim award. After
satisfying itself that it has jurisdiction to order reparation, the Court
considers appropriate the request of Nicaragua for the nature and amount of
the reparation to be determined in a subsequent phase of the proceedings. It

also considers that there is no provision in the Statute of the Court either
specifically empowering it or debarring it from making an interim award of
the kind requested. In a cases in which one Party is not appearing, the
Court should refrain from any unnecessary act which might prove an
obstacle to a negotiated settlement. The Court therefore does not consider
that it can accede at this stage to this request by Nicaragua.
XIII. The provisional measures (paras. 286 to 289)
After recalling certain passages in its Order of 10 May 1984, the Court
concludes that it is incumbent on each Party not to direct its conduct solely
by reference to what it believes to be its rights. Particularly is this so in a
situation of armed conflict where no reparation can efface the results of
conduct which the Court may rule to have been contrary to international
law
XIV. Peaceful settlement of disputes; the Contadora process (paras. 290 to
291)
In the present case the Court has already taken note of the Contadora
process, and of the fact that it had been endorsed by the United Nations
Security Council and General Assembly, as well as by Nicaragua and the
United States. It recalls to both Parties to the present case the need to cooperate with the Contadora efforts in seeking a definitive and lasting peace
in Central America, in accordance with the principle of customary
international law that prescribes the peaceful settlement of international
disputes, also endorsed by Article 33 of the United Nations Charter.

First. "That Executive Order No. 68 is illegal on the ground that it

violates not only the provision of our constitutional law but also our
local laws to say nothing of the fact (that) the Philippines is not a
signatory nor an adherent to the Hague Convention on Rules and
Regulations covering Land Warfare and therefore petitioners is
charged of 'crimes' not based on law, national and international."
Hence petitioner argues "That in view off the fact that this
commission has been empanelled by virtue of an unconstitutional
law an illegal order this commission is without jurisdiction to try
herein petitioner."
Second. That the participation in the prosecution of the case
against petitioner before the Commission in behalf of the United
State of America of attorneys Melville Hussey and Robert Port who
are not attorneys authorized by the Supreme Court to practice law in
the Philippines is a diminution of our personality as an independent
state and their appointment as prosecutor are a violation of our
Constitution for the reason that they are not qualified to practice law
in the Philippines.
Third. That Attorneys Hussey and Port have no personality as
prosecution the United State not being a party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office
prescribing rule and regulation governing the trial of accused war
criminals, was issued by the President of the Philippines on the 29th
days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3,
that
The Philippines renounces war as an instrument of national policy
and adopts the generally accepted principles of international law as
part of the of the nation.

KURODA v JALAN

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese

Imperial Army and Commanding General of the Japanese Imperial
Forces in The Philippines during a period covering 19433 and 19444
who is now charged before a military Commission convened by the
Chief of Staff of the Armed forces of the Philippines with having
unlawfully disregarded and failed "to discharge his duties as such
command, permitting them to commit brutal atrocities and other high
crimes against noncombatant civilians and prisoners of the Imperial
Japanese Forces in violation of the laws and customs of war"
comes before this Court seeking to establish the illegality of
Executive Order No. 68 of the President of the Philippines: to enjoin
and prohibit respondents Melville S. Hussey and Robert Port from
participating in the prosecution of petitioner's case before the
Military Commission and to permanently prohibit respondents from
proceeding with the case of petitioners.
In support of his case petitioner tenders the following principal
arguments.

which should be disposed of as in time of war. An importance

incident to a conduct of war is the adoption of measure by the
military command not only to repel and defeat the enemies but to
seize and subject to disciplinary measure those enemies who in
their attempt to thwart or impede our military effort have violated the
law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the
power to create a military commission for the trial and punishment of
war criminals is an aspect of waging war. And in the language of a
writer a military commission has jurisdiction so long as a technical
state of war continues. This includes the period of an armistice or
military occupation up to the effective of a treaty of peace and may
extend beyond by treaty agreement. (Cowles Trial of War Criminals
by Military Tribunals, America Bar Association Journal June, 1944.)
Consequently, the President as Commander in Chief is fully
empowered to consummate this unfinished aspect of war namely
the trial and punishment of war criminal through the issuance and
enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no
Jurisdiction to try petitioner for acts committed in violation of the
Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second only
in 1947. 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 principals of international law. In facts
these rules and principles were accepted by the two belligerent
nation the United State and Japan who were signatories to the two
Convention, 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
inn treaties to which our government may have been or shall be a
signatory.

In accordance with the generally accepted principle of international

law of the present day including the Hague Convention the Geneva
Convention and significant precedents of international jurisprudence
established by the United Nation all those person 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. Consequently in the promulgation and enforcement of
Execution Order No. 68 the President of the Philippines has acted in
conformity with the generally accepted and policies of international
law which are part of the our Constitution.

Furthermore when the crimes charged against petitioner were

allegedly committed the Philippines was under the sovereignty of
United States and thus we were equally bound together with the
United States and with Japan to the right and obligation contained in
the treaties between the belligerent countries. These rights and
obligation were not erased by our assumption of full sovereignty. If
at all our emergency as a free state entitles us to enforce the right
on our own of trying and punishing those who committed crimes
against crimes against our people. In this connection it is well to
remember what we have said in the case of Laurel vs. Misa (76
Phil., 372):

The promulgation of said executive order is an exercise by the

President of his power as Commander in chief of all our armed
forces as upheld by this Court in the case of Yamashita vs. Styer (L129, 42 Off. Gaz., 664) 1when we said

. . . The change of our form 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. . . .

War is not ended simply because hostilities have ceased. After

cessation of armed hostilities incident of war may remain pending

By the same token war crimes committed against our people and
our government while we were a Commonwealth are triable and
punishable by our present Republic.
Petitioner challenges the participation of two American attorneys
namely Melville S. Hussey and Robert Port in the prosecution of his
case on the ground that said attorney's are not qualified to practice
law in Philippines in accordance with our Rules of court and the
appointment of said attorneys as prosecutors is violative of our
national sovereignty.
In the first place respondent Military Commission is a special military
tribunal governed by a special law and not by the Rules of court
which govern ordinary civil court. It has already been shown that
Executive Order No. 68 which provides for the organization of such
military commission is a valid and constitutional law. There is
nothing in said executive order which requires that counsel
appearing before said commission must be attorneys qualified to
practice law in the Philippines in accordance with the Rules of Court.
In facts it is common in military tribunals that counsel for the parties
are usually military personnel who are neither attorneys nor even
possessed of legal training.
Secondly the appointment of the two American attorneys is not
violative of our nation sovereignty. It is only fair and proper that
United States, which has submitted the vindication of crimes against
her government and her people to a tribunal of our nation should be
allowed representation in the trial of those very crimes. If there has
been any relinquishment of sovereignty it has not been by our
government but by the United State Government which has yielded
to us the trial and punishment of her enemies. The least that we
could do in the spirit of comity is to allow them representation in said
trials.
Alleging that the United State is not a party in interest in the case
petitioner challenges the personality of attorneys Hussey and Port
as prosecutors. It is of common knowledge that the United State and
its people have been equally if not more greatly aggrieved by the
crimes with which petitioner stands charged before the Military
Commission. It can be considered a privilege for our Republic that a
leader nation should submit the vindication of the honor of its
citizens and its government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid
law with jurisdiction over the crimes charged which fall under the
provisions of Executive Order No. 68, and having said petitioner in
its custody, this Court will not interfere with the due process of such
Military commission.
For all the foregoing the petition is denied with costs de oficio.
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes,
JJ., concur.

G.R. No. L-2852

June 30, 1949

VICTOR A. BOROVSKY, petitioner,

vs.
THE COMMISSIONER OF IMMIGRATION and THE DIRECTOR
OF PRISONS, respondents.
The petitioner in his own behalf.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor
Lucas Lacson for respondents.
BENGZON, J.:
Victor A. Borovsky, a stateless citizen though a Russian by birth
according to his allegations, prays for release from the custody of
the Director of Prisons, who holds him for purposes of deportation.
In December, 1946, the President of the Philippines ordered
petitioner's deportation as undesirable alien, after a proper
investigation by the Deportation Board upon charges of being a
vagrant and habitual drunkard, engaged in espionage activities,
whose presence and conduct endangered the public interest.
Pursuant to such order, Borovsky was placed aboard a vessel
bound for Shanghai; but the authorities there declined to admit him
for lack of the proper visa, which the Chinese Consulate in this
country had refused to give. Wherefore he was brought back to the
Philippines. Thereafter he was temporarily released pending further
arrangements for his banishment. And when subsequently a
Russian boat called at Cebu, Borovsky was re-arrested and
transported to Cebu for deportation; however, the captain of the boat
declined take him, explaining he had no permission from his
government to do so. Wherefore the petitioner the petitioner is now
confined in the premises of the New Bilibid Prisonnot exactly as
the prisonerwhile the Government is exerting efforts to ship him to
a foreign country.
There is no question as to the validity of the deportation decree. It
must be admitted that temporary detention is a necessary step in the
process of exclusion or expulsion of undesirable aliens and that
pending arrangement for his deportation, the Government has the
right to hold the undesirable alien under confinement for a
reasonable length of time. However, under established precedents,
too long a detention may justify the issuance of a writ ofhabeas
corpus.1
The meaning of "reasonable time" depends upon the circumstances,
specially the difficulties of obtaining a passport, the availability of

transportation, the diplomatic arrangements of the government

concerned and the efforts displayed to send the deportee
away.2 Considering that this Government desires to expel the alien,
and does not relish keeping him at the people's expense, we
presume it is making efforts in making efforts to carry out the decree
of exclusion by the highest officer of the land. On top of this
presumption assurances were made during the oral argument that
the Government is really trying to expedite the expulsion of this
petitioner. On the other hand, the record fails to show how long he
has been under confinement since the last time he was
apprehended. Neither does he indicate neglected opportunities to
send him abroad. And unless it is shown that the deportee is being
indefinitely imprisoned under the pretense of awaiting a chance for
deportation3 or unless the Government admits that it cannot deport
him4 or unless the detainee is being held for too long a period our
courts will not interfere.
In the United States there were at least two instances in which
courts fixed a time limit within which the imprisoned aliens should be
deported5 otherwise their release would be ordered by writ
of habeas corpus. Nevertheless, supposing such precedents apply
in this jurisdiction, still we have no sufficient data fairly to fix a
definite deadline. Petition denied. No costs.
MEJOFf v PRISONS
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. Later he was handed to theCommonwealth
Government for disposition in accordance with Commonwealth Act
No. 682. 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 May 1948 he was transferred to the
Cebu Provincial Jail together with three other Russians to await the
arrival of some Russian vessels. In July and August of that year two
boats of Russian nationality called at the Cebu Port. But their
masters refused to take petitioner and his companions alleging lack
of authority to do so. 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.
The Court held the petitioner's detention temporary and said that
"temporary detention is a necessary step in the process of exclusion
or expulsion of undesirable aliens and that pending arrangements
for his deportation, the Government has the right to hold the
undesirable alien under confinement for a reasonable lenght of
time." It took note of the fact, manifested by the Solicitor General's
representative in the course of the of the oral argumment, that "this
Government desires to expel the alien, and does not relish keeping
him at the people's expense . . . making efforts to carry out the
decree of exclusion by the highest officer of the land." No period was
fixed within which the immigration authorities should carry out the
contemplated deportation beyond the statement that "The meaning
of 'reasonable time' depends upon the circumstances, specially the
difficulties of obtaining a passport, the availability of transportation,
the diplomatic arrangements with the governments concerned and
the efforts displayed to send the deportee away;" but the Court
warned that "under established precedents, too long a detention
may justify the issuance of a writ of habeas corpus."
Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice
Perfecto, and the writer of this decision dissented. Mr. Justice Feria
and Mr. Justice Perfecto voted for outright discharge of the prisoner
from custody. Mr. Justice Paras qualified his dissent by stating that
he might agree "to further detention of the herein petitioner, provided
that he be released if after six months, the Government is still
unable to deport him." This writer joined in the latter dissent but
thought that two months constituted reasonable time.
Over two years having elapsed since the decision aforesaid was
promulgated, the Government has not found way and means of
removing the petitioner out of the country, and none are in sight,
although it should be said in justice to the deportation authorities, it
was through no fault of theirs that no ship or country would take the
petitioner.
Aliens illegally staying in the Philippines have no right of asylum
therein (Sowapadji vs. Wixon, Sept. 18, 1946, 157 F. ed., 289, 290),
even if they are "stateless," which the petitioner claims to be. It is no
less true however, as impliedly stated in this Court's decision, supra,
that foreign nationals, not enemy against whom no charge has been
made other than that their permission to stay has expired, may not
indefinitely be kept in detention. 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. Whether an alien who entered the country

in violation of its immigration laws may be detained for as long as
the Government is unable to deport him, is a point we need not
decide. The petitioner's entry into the Philippines was not unlawful;
he was brought by the armed and belligerent forces of a de
facto government whose decrees were law furing the occupation.
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 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.
In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court
"has the power to release from custody an alien who has been
detained an unreasonably long period of time by the Department of
Justice after it has become apparent that although a warrant for his
deportation has been issued, the warrant can not be effectuated;"
that "the theory on which the court is given the power to act is that
the warrant of deportation, not having been able to be executed,
is functus officio and the alien is being held without any authority of
law." The decision cited several cases which, it said, settled the
matter definitely in that jurisdiction, adding that the same result had
reached in innumerable cases elsewhere. The cases referred to
were United States ex rel. Ross vs. Wallis, 2 Cir. 279 F. 401, 404;
Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs. Weedin, 9
Cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews, D.C.W.D.
Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46
F. Supp. 425.
The most recent case, as far as we have been able to find, was that
of Staniszewski vs. Watkins (1948), 90 Fed. Supp., 132, which is
nearly foursquare with the case at hand. In that case a stateless
person, formerly a Polish national, resident in the United States
since 1911 and many times serving as a seaman on American
vessels both in peace and in war, was ordered excluded from the
United States and detained at Ellis Island at the expense of the

steamship company, when he returned from a voyage on which he

had shipped from New York for one or more European ports and
return to the United States. The grounds for his exclusion were that
he had no passport or immigration visa, and that in 1937 had been
convicted of perjury because in certain documents he presented
himself to be an American citizen. Upon his application for release
on habeas corpus, the Court released him upon his own
recognizance. Judge Leibell, of the United States District Court for
the Southern District of New York, said in part:
When the return to the writ of habeas corpus came before this court,
I suggested that all interested parties . . . make an effort to arrange
to have the petitioner ship out of some country that he would receive
him as a resident. He is, a native-born Pole but the Polish Consul
has advised him in writing that he is no longer a Polish subject. This
Government does not claim that he is a Polish citizen. His attorney
says he is a stateless. The Government is willing that he go back to
the ship, but if he were sent back aboard a ship and sailed to the
Port (Cherbourg, France) from which he last sailed to the United
States, he would probably be denied permission to land. There is no
other country that would take him, without proper documents.
It seems to me that this is a genuine hardship case and that the
petitioner should be released from custody on proper terms. . . .
What is to be done with the petitioner? The government has had him
in custody almost seven months and practically admits it has no
place to send him out of this country. The steamship company,
which employed him as one of a group sent to the ship by the Union,
with proper seaman's papers issued by the United States Coast
Guard, is paying $3 a day for petitioner's board at Ellis Island. It is
no fault of the steamship company that petitioner is an inadmissible
alien as the immigration officials describe him. . . .
I intend to sustain the writ of habeas corpus and order the release of
the petitioner on his own recognizance. He will be required to inform
the immigration officials at Ellis Island by mail on the 15th of each
month, stating where he is employed and where he can be reached
by mail. If the government does succeed in arranging for petitioner's
deportation to a country that will be ready to receive him as a
resident, it may then advise the petitioner to that effect and arrange
for his deportation in the manner provided by law.
Although not binding upon this Court as a precedent, the case
aforecited affords a happy solution to the quandry in which the
parties here finds themselves, solution which we think is sensible,
sound and compatible with law and the Constitution. For this reason,
and since the Philippine law on immigration was patterned after or
copied from the American law and practice, we choose to follow and

adopt the reasoning and conclusions in the Staniszewski decision

with some modifications which, it is believed, are in consonance with
the prevailing conditions of peace and order in the Philippines.
It was said or insinuated at the hearing ofthe petition at bar, but not
alleged in the return, that the petitioner was engaged in subversive
activities, and fear was expressed that he might join or aid the
disloyal elements if allowed to be at large. Bearing in mind the
Government's allegation in its answer that "the herein petitioner was
brought to the Philippines by the Japanese forces," and the fact that
Japan is no longer at war with the United States or the Philippines
nor identified with the countries allied against these nations, the
possibility of the petitioner's entertaining or committing hostile acts
prejudicial to the interest and security of this country seems remote.
If we grant, for the sake of argument, that such a possibility exists,
still the petitioner's unduly prolonged detention would be
unwarranted by law and the Constitution, if the only purpose of the
detention be to eliminate a danger that is by no means actual,
present, or uncontrolable. After all, the Government is not impotent
to deal with or prevent any threat by such measure as that just
outlined. The thought eloquently expressed by Mr. Justice Jackson
of the United States Supreme Court in connection with the
appliccation for bail of ten Communists convicted by a lower court of
advocacy of violent overthrow of the United States Government is, in
principle, pertinent and may be availed of at this juncture. Said the
learned Jurist:
The Governmet's alternative contention is that defendants, by
misbehavior after conviction, have forfeited their claim to bail. Grave
public danger is said to result from what they may be expected to
do, in addition to what they have done since their conviction. If I
assume that defendants are disposed to commit every opportune
disloyal to act helpful to Communist countries, it is still difficult to
reconcile with traditional American law the jailing of persons by the
courts because of anticipated but as yet uncommitted crimes.
lmprisonment to protect society from predicted but unconsummated
offenses is so unprecedented in this country and so fraught with
danger of excesses and injustice that I am loath to resort it, even as
a discretionary judicial technique to supplement conviction of such
offenses as those of which defendants stand convicted.
But the right of every American to equal treatment before the law is
wrapped up in the same constitutional bundle with those of these
Communists. If an anger or disgust with these defendants we throw
out the bundle, we alsocast aside protection for the liberties of more
worthy critics who may be in opposition to the government of some
future day.

xxx

xxx

x x x1wphl.nt

If, however, I were to be wrong on all of these abstract or theoretical

matters of principle, there is a very practical aspect of this
application which must not be overlooked or underestimated that
is the disastrous effect on the reputation of American justice if I
should now send these men to jail and the full Court later decide that
their conviction is invalid. All experience with litigation teaches that
existence of a substantial question about a conviction implies a
more than negligible risk of reversal. Indeed this experience lies
back of our rule permitting and practice of allowing bail where such
questions exist, to avoid the hazard of unjustifiably imprisoning
persons with consequent reproach to our system of justice. If that is
prudent judicial practice in the ordinary case, how much more
important to avoid every chance of handing to the Communist world
such an ideological weapon as it would have if this country should
imprison this handful of Communist leaders on a conviction that our
highest Court would confess to be illegal. Risks, of course, are
involved in either granting or refusing bail. I am naive enough to
underestimate the troublemaking propensities of the defendants.
But, with the Department of Justice alert to the the dangers, the
worst they can accomplish in the short time it will take to end the
litigation is preferable to the possibility of national embarrassment
from a celebrated case of unjustified imprisonment of Communist
leaders. Under no circumstances must we permit their symbolization
of an evil force in the world to be hallowed and glorified by any
semblance of martyrdom. The way to avoid that risk is not to jail
these men until it is finally decided that they should stay jailed.
If that case is not comparable with ours on the issues presented, its
underlying principle is of universal application. In fact, its ratio
decidendi applies with greater force to the present petition, since the
right of accused to bail pending apppeal of his case, as in the case
of the ten Communists, depends upon the discretion of the court,
whereas the right to be enlarged before formal charges are instituted
is absolute. As already noted, not only are there no charges pending
against the petitioner, but the prospects of bringing any against him
are slim and remote.
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. He shall also put up a bond for
the above purpose in the amount of P5,000 with sufficient surety or

sureties, which bond the Commissioner of Immigration is authorized

to exact by section 40 of Commonwealth Act No. 613.
Haw pia
Plaintiff-appellant instituted this action in the Court of First Instance
of Manila against the defendant-appellee, China Banking
Corporation, to compel the latter to execute a deed of cancellation of
the mortgage on the property described in the complaint, and to
deliver to the said plaintiff the Transfer Certificate of Title No. 47634
of the Register of Deeds of Manila, with the mortgage annotated
therein already cancelled, as well as to pay the plaintiff the sum of
P1,000.00 for damages as attorney's fees and to pay the costs of
the suit. The cause of action is that the plaintiff's indebtedness to the
China Banking Corporation in the sum of P5,103.35 by way of
overdraft in current account payable on demand together with its
interests, has been completely paid, on different occasions, from
October 7, 1942, to August 29, 1944, to the defendant Bank China
Banking Corporation through the defendant Bank of Taiwan, Ltd.,
that was appointed by the Japanese Military authorities as liquidator
of the China Banking Corporation.
Upon having been served with summons the defendant-appellee
China Banking Corporation made a demand from the plaintiffappellant for the payment of the sum of P5,103.35 with interests
representing the debt of the said appellant, and in the answer it set
up a counter claim against the plaintiff-appellant demanding the
payment, within 90 days from the latter to the former by way of
overdraft together with its interests at the rate of 9 additional sum of
P1,500 as attorney's fees and the costs of the suits.
After the hearing of the case, the trial court rendered a decision
holding that, as there was no evidence presented to show that the
defendant China Banking Corporation had authorized the Bank of
Taiwan, Ltd., to accept the payment of the plaintiff's debt to the said
defendant, and said Bank of Taiwan, as an agency of the Japanese
invading army, was not authorized under the international law to
liquidate the business of the China Banking Corporation, the
payment has not extinguished the indebtedness of the plaintiff to the
said defendant under article 1162 of the Civil Code. The court
absolved the defendant China Banking Corporation from the
complaint of the plaintiff, and sentenced the latter to pay the former
the sum of P5,103.35 with interests within the period of 90 days from
and after the above mentioned Executive Order No. 32 had been
repealed or set aside, and ordered that, if the plaintiff failed to pay it
within the said period, the property mortgaged shall be sold at public
auction and the proceeds of the sale applied to the payment of said
obligations. The plaintiff appealed from the decision to this Court.

The appellant's assignments of error may be reduced to two, to wit:

First, whether or not the Japanese Military Administration had
authority to order the liquidation or winding up of the business of
defendant-appellee China Banking Corporation, and to appoint the
Bank of Taiwan liquidator authorized as such to accept the payment
by the plaintiff-appellant to said defendant-appellee; and second,
whether or not such payment by the plaintiff-appellant has
extinguished her obligation to said defendant-appellee.
(1) As to the first question, we are Japanese military opinion, and
therefore hold, that the Japanese military authorities had power,
under the international law, to order the liquidation of the China
Banking Corporation and to appoint and authorize the Bank of
Taiwan as liquidator to accept the payment in question, because
such liquidation is not confiscation of the properties of the bank
appellee, but a mere sequestration of its assets which required the
liquidation or winding up of the business of said bank. All the
arguments to the contrary in support of the decision appealed from
the predicated upon the erroneous assumption that the liquidation or
winding up of the affairs of the China Banking Corporation, in order
to determine its liabilities and net assets to be sequestrated or
controlled, was an act of confiscation or appropriation of private
property contrary to Article 46, section III of the Hague Regulations
of 1907.
The provisions of the Hague Regulations, section III, on Military
Authority over Hostile Territory, which is a part of the Hague
Convention respecting the laws and customs of war on land, are
intended to serve as general rule of conduct for the belligerents in
their relations with each other and with the inhabitants, but as it had
not been found possible then to concert regulations covering all the
circumstances which occur in practice, and on the other hand it
could not have been intended by the High Contracting Parties that
the unforeseen cases should, in the absence of a written
undertaking, be left to the arbitrary judgment of military
commanders, it was agreed that "Until a complete code of the laws
of war has been issued, the High Contracting Parties deem it
expedient to declare that in cases not included in the Regulations
adopted by them, the inhabitants and the belligerents remain under
the protection and the rule of the principles of international law, as
they result for the usages established among civilized peoples, from
the laws of humanity, and the dictates of public conscience."
Before the Hague Convention, it was the usage or practice to allow
or permit the confiscation or appropriation by the belligerent
occupant not only of public but also of private property of the enemy
in a territory occupied by the belligerent hostile army; and as such
usage or practice was allowed, a fortiori, any other act short of
confiscation was necessarily permitted. Section III of the Hague

Regulations only prohibits the confiscation of private property, article

53 provides that cash funds, and property liable to requisition and all
other movable property belonging to the State susceptible of military
use or operation, may be confiscated or taken possession of as a
booty and utilized for the benefit of the invader's government (II
Oppenheim, 8th ed. section 137; 320 & 321, War Department; Basic
Field Manual, Rules of Land Warfare FM 27-10). The belligerents in
their effort to control enemy property within their jurisdiction or in
territories occupied by their armed forces in order to avoid their use
in aid of the enemy and to increase their own resources, after the
Hague Convention and specially during the first World War, had to
resort to such measures of prevention which do not amount to a
straight confiscation, as freezing, blocking, placing under custody
and sequestrating the enemy private property. Such acts are
recognized as not repugnant to the Hague Regulations by wellknown writers on International Law, and are authorized in the Army
and Navy Manual of Military Government and Civil Affairs not only of
the United States, but also in tries, as well as in the Trading with the
Enemy Acts of said countries.
Hyde in his International Law chiefly as interpreted and applied by
the United States, Vol. 3, 6th ed., p. 1727, has the following to say:
In examining the efforts of a belligerent to control in various ways
property within its domain that has such a connection with nationals
of the enemy that it may be fairly regarded as enemy property, it is
important to inquire whether the attempt is made to appropriate
property without compensation, divesting him not only of title, but
also of any right or interest in what is taken, without prospect of
reimbursement, or whether those efforts constitute an assumption of
control which, regardless of any transfer of title, is not designated to
produce such a deprivation. The character of the belligerent acts in
the two situations is not identical. To refer to both as confiscatory is
not productive of clearness of thought, unless a loose and broad
signification be attached to the term "confiscation." The point to be
noted is that a belligerent may in fact deprive an alien enemy owner
of property by process that are into essentially confiscatory, even
though the taking and retention may cause him severe loss and
hardship. Recourse to such non-confiscatory retentions or
deprivations has marked the conduct of belligerents since the
beginning of the World War in 1914. They may perhaps be
appropriately referred to as sequestrations. The propriety of what
they have involved is, therefore, hardly discernible by reference to
objections directed against confiscatory action as such, and must be
tested by other means or standards.
A belligerent may fairly endeavor to prevent enemy property of any
kind within its territory (or elsewhere within its reach) from being so
employed as to afford direct military aid to its foe. Measures of

prevention may, in a particular case, assume a confiscatory aspect.

In such a situation the question may arise whether those aspect. In
such a situation the question may arise whether those measures
are, nevertheless, excusable. It is believed that they may be, and
that they are not invariably unlawful despite the absence of efforts to
compensate the owners.
And in the footnote of the same page, said author adds:
This analysis differs sharply from that of those who would regard
almost all uncompensated deprivations of property as essentially
confiscatory, and as, therefore, internationally illegal because of the
further assumption or conclusion that confiscatory action must
inevitably be so regarded. Belligerent States have not, however,
generally acted on such a theory. They have in fact proceeded,
especially since 1914, to exercise varying degrees of control over
vast amounts of enemy private property by strictly non-confiscatory
processes from which they have felt no sense of legal obligation to
abstain. In so doing they have been creative of relatively fresh
practices which logic has ordained and war-terminating treaties have
sanctioned. Thus it happens that proper estimation of the place of
confiscation of enemy private property in the law of nations has
become of less importance than formerly, because both of the
reluctance of States and notably of the United States to have
recourse to it, and of their preference for no-confiscatory measures
exemplified in sequestrations as a desirable and sufficient means of
utilizing such property.
And Oppenheim in his International Law, Vol. 2, 6th ed., by
Lauterpacht, says:
But the desire to eliminate the financial and commercial influence of
the enemy, and other motives, presently led in most States to
exceptional war measures against the businesses and property of
enemies, which though not confiscation, implicated great loss and
injury. Sometimes these measures stopped short of divesting the
enemy ownership of the property; but in other cases the businesses
or property were liquidated, and were represented at the close of
hostilities by nothing else than the proceeds of their realization, often
enough out of all proportion to their value. In the Trading with the
Enemy Act, 1939, provisions was made for the appointment of
custodians of enemy property in order to prevent the payment of
money to enemies and preserve enemy property in contemplation of
arrangements to be made at the conclusion of peace.
The readjustment of rights of private property on land was provided
for by the Treaties of Peace. The general principles underlying their
complicated arrangements were that the validity of all completed war
measures was reciprocally confirmed; but that while uncompleted

liquidations on the territories of the Central Powers were to be

discontinued, and the subjects of the victorious Powers were to
receive compensation for the loss or damage inflicted on their
property by the emergency war measures, the property of subjects
of the vanquished Powers on the territories of the Allied and
Associated Powers might be retained and liquidated, and the owner
was to look for compensation to his own State. The proceeds of the
realization of such property were not to be handed over to him, or to
his State, but were to be credited to his State as payment on
account of the sums payable by it under the treaties.
In paragraph 143 (p. 313) of the same work, Oppenheim states that
"Private personal property which does not consist of war materials
or means of transport serviceable for military operations may not be
as a rule seized". It is obvious that the word "seized" used therein
signifies "confiscated" in view of the above quoted paragraph, and
therefore when Oppenheim says, in footnote to said passage, "Nor
may the occupant liquidate the business of enemy subject in
occupied territories," he means "confiscate" by the word "liquidate".
Ernest K. Feildchenfeld in his "The International Economic Law of
Belligerent Occupation (1942)" supports the foregoing conclusion of
Hyde, when he says that "According to Article 46 of the Hague
Regulations, private property must be respected and cannot be
confiscated. This rule affords protection against the loss of property,
through outright confiscation, but not against losses under lawful
requisition, contribution, seizure, fines, taxes, and expropriation"
(Par. 208, p. 51). And later on the adds: "A complete nationalization
of a corporation for the benefit of the occupant could not be anything
but a permanent measure involving final effects beyond the duration
of the occupation. There is no military need for it because the same
practical results can be achieved by temporary sequestration," (par.
385, p. 107).
Martin Domke in his Trading with the Enemy in World War II, pp. 4
and 5, speaking of Warfare on Economic and military fronts, says
that "Freezing Control is but one phase of the present war effort; it is
but one weapon on the total war which is now being waged on both
economic and military fronts. Coupled with Freezing Control as a
part of this nation's program of economic warfare are to be found
export control, the promulgation of a Black List, censorship, seizure
of enemy-owned property, and financial and lend-lease aid to allied
and friendly nations. As to Japan, no official information is available
as yet on steps taken by the Japanese Government. As a
Commentary of April 11, 1942, points out, the Japanese Trading with
the Enemy legislation enacted during the last war against Germany
might throw some light on the views adopted by Japan in this
matter."

The sequestration or liquidation of enemy banks in occupied

territories is authorized expressly by the United States Army and
Navy Manual of Military Government and Civil Affairs F.M. 2710
OPNAV 50-E-3, which, mandatory and controlling upon the theatre
commanders of the U. S. forces in said territories, provides in its
paragraph 12 the following:

"The Allied Military Financial Agency or any appointed agency by the

MG will take into immediate custody all foreign securities and
currencies, holding of gold, national funds and holding of Fascist
organizations for deposit." (Appendix on American Military
Government, its Organization and Policies, by Hajo Holborn, 1947,
pp. 116, 117.)

Functions of Civil Affairs Officers. In the occupation of such

territories for a considerable period of time, the civil affairs officers
will in most cases be concerned with the following and other
activities:

The Combined Directive of April 28, 1944, for Military government in

Germany Prior to Defeat or Surrender, provided that the Allied
Forces "Upon entering the area of Germany will take the following
steps and put into effect only such further financial measures as
they deem necessary from a strictly military standpoint. (b) "Banks
should be placed under such control as deemed necessary by them
in order that adequate facilities or military needs may be provided
and to insure that instructions and regulations issued by the military
authorities will be fully complied with." (c) "Pending determination of
future disposition, all gold, foreign currencies, foreign securities,
accounts in financial institutions, credits, valuable papers, and all
similar assets held by or on behalf of the following, will be
impounded or blocked and will be used or otherwise dealt with only
as permitted under licenses or other instructions which you may
issue: (1) German national state, provincial and local governments
and agencies and instrumentalities thereof." (4) "Nazi party
organizations including the party formations, affiliates and
supervised associations, and the officials, leading members and
supporters thereof; and (5) Persons under detention or other types
of custody by Allied Military authorities and other persons whose
activities are hostile to the interest of military government"
(Holborn, supra, p. 141)

1. MONEY AND BANKING. Closing, if necessary and guarding of

banks, bank funds, safe deposit boxes, securities and records;
providing interim banking and credit needs; liquidation;
reorganization, and reopening of banks at appropriate times;
regulations and supervisions of credit cooperatives and other
financial agencies and organizations; execution of policies on
currency fixed by higher authority, such as the designation of types
of currency to be used and rates of exchange supervision of the
issue and use of all types of money and credit; declaration of debt
moratoria; prevention of financial transactions with enemy occupied
territory.
The civil affairs officers are concerned, that is, entrusted with the
performance of the functions enumerated above, when so directed
by the chief commander of the occupant military forces.
Not only the United States Army and Navy Manual of Military
Government and Civil Affairs but similar manuals of other countries
authorize the liquidation or impounding of the assets of enemy
banks or the freezing, blocking and impounding of enemy properties
in the occupied hostile territories without violating article 46 or other
articles of the Hague Regulations. They do not amount to an outright
confiscation of private property, and were put into effect by the Allied
Army in the occupied hostile territories in Europe during World War
II.
The Combined Chiefs of Staff, in their Directive of May 31, 1943, on
Military Government in Sicily, Italy, addressed to the Supreme Allied
Commander, Mediterranean Theater, ordered: "(h) An Allied
Military Financial Agency under the control of the Military
Government shall be established with such sub-agencies as
considered necessary," "(i) Military authorities on occupying an area
shall immediately take the following steps: '(1) All financial
institutions and banks shall be closed and put under the custody of
the military forces'," (2) a general moratorium shall be declared. (j) ...
all papers of value, foreign securities, gold and foreign currencies
shall be impounded with receipts granted to recognized owners. (k)

In the Allied Directive of June 27, 1945, to the Commander in Chief

of the United States forces of occupation regarding the military
government of Austria, the Commanding General of the United
States forces of occupation in Austria, serving as United States
members of the Allied Council of the Allied Commission for Austria,
was authorized, subject to agreed policies of the Allied Council to
close banks, insurance companies, and other financial institutions
for a period long enough to introduce satisfactory control to
ascertain their cash position and to issue instructions for the
determination of accounts and assets to be blocked under
paragraph 55 which authorized him to impound or block all gold,
silver, currencies, securities accounts in financial institutions, credits,
valuable papers, and all other assets falling within the following
categories; a. Property owned or controlled, directly or indirectly, in
whole or in part, by any of the following: (1) the governments,
nationals or residents of the German Reich, Italy, Bulgaria,
Rumania, Hungary, Finland and Japan, including those of territories
occupied by them; (3) the Nazi Party, its formations, affiliated
associations and supervised organizations, its officials, leading
members and supporters; (4) all organizations, clubs and other

associations prohibited or dissolved by military government; (5)

absentee owners, including United nations and neutral
governments; (7) persons subject to arrest under the provisions of
paragraph 7, and all other persons specified by military government
by inclusion in lists or otherwise, (Holborn, supra, p. 192).

The defendant-appellee, China Banking Corporation, comes within

the meaning of the word "enemy" as used in the Trading with Enemy
Act of civilized countries, because not only it was controlled by
Japan's enemies, but it was, besides, incorporated under the laws of
a country with which Japan was at war.

On the other hand, the provisions of the Trading with the Enemy
Acts enacted by the United States and almost all the principal
nations since the first World War, including England, Germany,
France and other European countries, as well as Japan, confirms
that the assets of enemy corporations, specially banks incorporated
under the laws of the country at war with the occupant and doing
business in the occupied territory, may be legally sequestered, and
the business thereof wound up or liquidated. Such sequestration or
seizure of the properties is not an act for the confiscation of enemy
property, but for the conservation of it, subject to further disposition
by treaty between the belligerents at the end of the war. Section 12
of the Trading with the Enemy Act of the United States provides that
"after the end of the war any claim of enemy or ally of an enemy to
any money or other property received and held by the Alien
Custodian or deposited in the United States Treasury, shall be
settled as Congress shall direct."

Section 2 (1) of the Trading with the Enemy Act of Great Britain
provides that the expression "enemy" means: "any body of persons
(whether corporate or incorporate) carrying on business in any
place, if and so long as the body is controlled by a person who,
under this section, is an "enemy". The control test has also been
expressly adopted in the French Trading with the Enemy Act. The
Italian Act regards as enemies "legal persons when enemy subject
have any prevalent interest whatever in them." The Decree of the
Dutch Government-in-exile of June 7, 1940, also adopted the control
test by including in the term enemy subjects "legal persons in which
interest of an enemy state or enemy subjects are predominantly
involved." (Domke Trading with the Enemy Act, pp. 127-130.)

The purpose of such sequestration is well expounded in the Annual

Report of the Office of the Alien Custodian for a period from March
11, 1943 to June 30, 1943. "In the absence of effective measures of
control, enemy-owned property can be used to further the interest of
the enemy and to impede our own war effort. All enemy-controlled
assets can be used to finance propaganda, epionage, and sabotage
in this country or in countries friendly to our cause. They can be
used to acquire stocks of strategic materials and supplies ... use to
the enemy, they will be diverted from our own war effort.
The national safety requires the prohibition of all unlicensed
communication, direct or indirect, with enemy and enemy-owned
territories. To the extent that this prohibition is effective, the residents
of such territory are prevented from exercising the rights and
responsibilities of ownership over property located in the United
States. Meanwhile, decisions affecting the utilization of such
property must be made and carried out. Houses must be maintained
and rents collected; payments of principal and interest on mortgages
must be made for the account of foreign debtors and foreign
creditors; stranded stocks of material and equipment must be sold;
patents must be licensed, business enterprises must be operated
and liquidated, and foreign interest must be represented in court
actions. The number of decisions to be made in connection with
property is in fact multiplied by a state of war, which requires that
productive resources be shifted from one use to another so as to
conform with the requirements of a war economy."

In the United States, the Trading with the Enemy Act has not
adopted the control theory. But section 2-a of the said Act says that
the word enemy shall be deemed to mean any "corporation
incorporated within such territory of any nation with which the United
States is at war." And the same definition is given to the word
"enemy" by the Trading with the Enemy Act of the above-named
countries. The British Act in Section 2 (1) defines as enemy "any
body of persons constituted or incorporated in or under the laws of a
state at war with his Majesty," it being immaterial that they are under
the control of allied or neutral stockholders. Similarly the French Act
regards as enemies, corporations incorporated in conformity with the
laws of an enemy state. The decree of the Dutch Government-inexile on June 7, 1940, considers as enemies legal persons
"organized or existing according to or governed by the law of an
enemy state." The German Act of January 15, 1940, I section 3 (1)
3, deems enemies all corporations, "the original personality of which
is based on the laws of an enemy state." The Italian Act of 1938,
section 5, regards corporation as enemies if they are of enemy
nationality under the law of the enemy state. So too the Japanese
Act, Chapter 1, No. 25, deems enemies "all corporations belonging
to enemy countries." (See Martin Domke, Trading with the Enemy
Act in World War II, pp. 120-122.)
Section 3-A of the Trading with the Enemy Act of the United
Kingdom of September 5, 1939, as amended up to April 1, 1943,
provides that "Where and business is being carried in the United
Kingdom by, on behalf of, or under the jurisdiction of, persons all or
any of whom are enemies or enemy subjects or appear to the Board
of Trade to be associated with enemies, the Board of Trade may, if
they think it expedient so to do, make ...;" (b) and order (hereinafter

in this section referred to as a winding up orders) requiring the

business to be wound up;" and section 14 (c) of the same Act (that
obviously makes it applicable to enemy territories occupied by the
United Kingdoms armed forces) provides that "His Majesty may by
order in council direct that the provisions of this Act other than this
section shall extend, with such exceptions, adaptations and
modifications, if any, as may be prescribed by or under the order ...
(to the extent of His Majesty's jurisdiction therein) to any of the
country or territory being a foreign country or territory, in which for
the time being His Majesty has jurisdiction." (The Trading with the
Enemy Act in World War II, p. 481, by Martin Domke.)
Section 5 (b) of the Trading with the Enemy Act of the United States
provides that "during the time of war or during any period in which
national emergencies declared by the President, the President may
under any agency that he may designate or otherwise under such
rule and regulation as he may prescribe," and "any property or
interest of any foreign country or national thereof shall vest, when,
as, and upon the terms, directed by the President, in such agency or
person as may be designated from time to time by the President,
and upon such terms and conditions as the President may
prescribe, such interest or property shall be held, used,
administered, liquidated, etc." and section 6 (e) of the same Act
provides that "any payment, ... of money or property made to the
alien property custodian hereunder shall be a full acquittance and
discharge for all purposes of the obligation of the person making the
same to the extent of same. .. and shall, in any case of payment to
the alien, property custodian of any debt or obligation owed to an
enemy or ally of enemy, deliver up any notes, bonds, or other
evidences of indebtedness or obligation, ... with like effect as if he or
they, respectively, were duly appointed by the enemy or ally of
enemy, creditor, or obligee."
It is evident that the Trading with the Enemy Act of the United
States, like that of the United Kingdom or Great Britain above
quoted, and those of other countries, may be applied and enforced
in a hostile territory occupied by the United States armed forces,
because section 2 of said Act provides "That the words 'United
States', as used herein, shall be deemed to mean all land and water,
continental or insular, in any way within the jurisdiction of the United
States or occupied by the military or naval forces thereof." After the
liberation of the Philippines during World War II, properties
belonging to Japanese Nationals located in this country were taken
possession of by the Alien Property Custodian appointed by the
President of the United States under the Trading with the Enemy
Act, because, although the Philippines was not a territory or within
the jurisdiction or national domain of the United States, it was then
occupied by the military and naval forces thereof.

Of course it is obvious that the obligations assumed by the United

States, in applying the Trading with the Enemy Act of the United
States to properties within her national domain, is different and
distinct from those arising from the application thereof to enemy
properties located within the hostile territory occupied by her armed
forces. In the first case, Congress is untramelled and free to
authorize the seizure, use, or appropriation of such properties
without and compensation to the owners, for although section 2 of
the Trading with the Enemy Act provides that "at the end of the war
any claim of an enemy or of an ally of enemy to any money or other
property received and held by the alien property custodian or
deposited in the United States Treasury shall be settled by
Congress," the owners of the properties seized within the national
domain of the United States are not entitled to demand its release or
compensation for its seizure, but what could ultimately come back to
them, might be secured, not as a matter of right, but as matter of
either grace to the vanquished or exacted by the victor, for the case
is to be governed by the domestic laws of the United States, and not
by the Hague Regulations or International Law (U.S.vs. Chemical
Foundation Inc., 272 U.S. 1; United States vs. S.S. White Dental
Manufacturing Company, 274 U.S., 402). While in the latter case,
when the properties are sequestered in a hostile occupied territory
by the armed forces of the United States, Congress can not legally
refuse to credit the compensation for them to the States of the
owners as payment on the account of the sums payable by said
States under treaties, and the owners have to look for compensation
to their States, otherwise, they would violate article 46 of the Hague
Regulations or their pledge of good faith implied in the act of
sequestering or taking control of such properties.
It is to be presumed that Japan, in sequestering and liquidating the
China Banking Corporation, must have acted in accordance, either
with her own Manual of the Army and Navy and Civil Affairs, or with
her Trading with the Enemy Act, and even if not, it being permitted to
the Allied Nations, specially the United states and England, to
sequestrate, impound, and block enemy properties found within their
own domain or in enemy territories occupied during the war by their
armed forces, and it not being contrary to the Hague regulations or
international law, Japan had also the right to do the same in the
Philippines by virtue of the international law principle that "what is
permitted to one belligerent is also allowed to the other."
Taking into consideration the acts of the Japanese Military
Administration in treating the private properties of the so-called
enemy banks, it appears evident that Japan did not intend to
confiscate or appropriate the assets of said banks or the debts due
them from their debtors, and thus violate article 46 or any other
article of the Hague Regulations. It is true that as to private personal
properties of the enemy, freezing, blocking, or impounding thereof is
sufficient for the purpose of preventing their being used in aid of the

enemy; but with regard to the funds of commercial banks like the socalled enemy banks, it was impossible or impracticable to attain the
purpose for which the freezing, blocking or impounding are intended,
without liquidating the said banks and collecting the loans given by
then to the hundreds if not thousands or persons scattered over the
Islands. Without doing so, their assets or money loaned to so many
persons can not properly be impounded or blocked, in order to
prevent their being used in aid to the enemy through the intervention
of their very debtors, and successfully wage economic as well as
military war.
That the liquidation or winding up of the business of the China
Banking Corporation and other enemy banks did not constitute a
confiscation or appropriation of their properties or of the debts due
them from their debtors, but a mere sequestration of their assets
during the duration of the war for the purposes already stated, is
evidenced conclusively by the following uncontroverted facts set
forth in the briefs of both parties and amici curiae:
(1) Out of the sum of about P34,000,000 collected from the debtors
by the liquidator Bank of Taiwan, the latter paid out to the depositors
or creditors of the same bank about P9,000,000; and its common
sense that this last amount should not have been disbursed or taken
out of the said amount of about P34,000,000 had it been the
intention of the Japanese Military Administration to confiscate this
amount collected by the Bank of Taiwan.
(2) The members of Chinese Associations were permitted to
withdraw from their deposits with the China Banking Corporation a
considerable amount of money which was paid out of the sum
collected from the debtors of said bank, in order that they may pay
the contribution legally exacted from them by the military occupant in
accordance with article 51 of the Hague Regulations. And this
showed the intention of the belligerent occupant not to confiscate
the bank's assets and to act, at least in this respect, in accordance
with said Regulations; because otherwise the Japanese Military
Administration could have properly required the Chinese to pay the
contribution out of their own funds, without diminishing or reducing
the amounts collected by the Bank of Taiwan from the debtors of the
China Bank.

(3) The collection of the aforementioned debts from the bank's

debtors, as well as the payment of withdrawal by the depositors,
were regularly entered into the books of said Banks, so that after
liberation they could easily determine the respective amounts and
the persons who had made the payments, which enabled all said
banks to re-open and continue their business; and the regular
keeping of said books would have been unnecessary or useless,
were it the intention of the military occupant to close definitely the
enemy banks and appropriate all their resources.
(4) There was absolutely no reason for confiscating the funds of the
banks collected from their debtors, because by sequestrating or
impounding their assets or funds after the latter had been collected
from their debtors, the principal purpose of preventing the possible
use of the funds of the banks in aid of Japan's enemy was
completely accomplished. Absolutely no other benefit could be
derived by Japan from confiscating or appropriating the payments
made in Japanese war military notes to the enemy banks by their
debtors, because the Japanese Government could have them at will
without cost, except that of the ink, paper and labor necessary for
printing and issuing them.
(5) The annual Report, 31st December, 1945, of the Chartered Bank
of India, Australia, and China (pp. 11-12), which had a branch in
Manila liquidated by Japanese Military authorities as one of enemy
banks, clearly shows that the liquidation of said branch was a mere
sequestration, impounding or control of its assets, and not a
confiscation or appropriation thereof during the occupation by the
Japanese. It says that during the enemy occupation the cash
balance of our Branches were seized, their assets
realized and repayment of varying amounts, but up to 100 per cent
in one Branch at least, made to depositors. Said report reads, in its
pertinent part, as follows:
I informed you, when commenting upon the Balance Sheet figures
for the year ending 31st December, 1942, that we had reason to
believe that accounts of some of our occupied Branches had been
partly or wholly liquidated, and that the liquidation of such accounts
would ultimately bring about shrinkage in both Assets and Liabilities
in the Balance Sheet figures. The information now in our possession
and the various changes in the Balance Sheet figures to which I
have referred to above, confirm the correctness of this statement, for
during the enemy occupation the cash balances of our Branches
were seized, their assets realized where possible, and repayment of
varying amounts, but up to 100 per cent in one Branch at least,
made to depositors. Even so, the business of the offices of the Bank
which remained under our own control throughout the war was
steadily increased and has offset to a great extent decreases

brought about by the partial liquidation of Branches which were in

Japanese control. (Emphasis supplied.)
It is obvious that the fact that Japanese Military authorities failed to
pay the enemy banks the balance of the money collected by the
Bank of Taiwan from the debtors of the said banks, did not and could
not change the sequestration or impounding by them of the bank's
assets during the war, into an outright confiscation or appropriation
thereof. Aside from the fact that it was physically impossible for the
Japanese Military authorities to do so because they were forcibly
driven out of the Philippines or annihilated by the forces of liberation,
following the readjustment of rights of private property on land
seized by the enemy provided by the Treaty of Versailles and other
peace treaties entered into at the close of the first World War, the
general principles underlying such arrangements are that the
owners of properties seized, sequestrated or impounded who are
nationals of the victorious belligerent are entitled to receive
compensation for the loss or damage inflicted on their property by
the emergency war measures taken by the enemy, through their
respective States or Governments who may officially intervene and
demand the payment of he claim on behalf of their nationals (VI
Hackworth Digest of International Law, pages 232, 233; 11
Oppenheim, sixth edition, page 263). Naturally, as the Japanese war
notes were issued as legal tender for payment of all kinds at par with
the Philippine peso, by the Japanese Imperial Government, which in
its proclamations of January 3, 1942, and February 1, 1942, "takes
full responsibility for their usage having the correct amount to back
them up" (See said Proclamations and their official explanation, O.T.
IMA, Vol, 1, pp. 39, 40), Japan is bound to indemnify the aggrieved
banks for the loss or damage on their property, in terms of Philippine
pesos or U.S. dollars at the rate of one dollar for two pesos.
(2) The second question is, we may say, corollary of the first. It
having been shown above that the Japanese Military Forces had
power to sequestrate and impound the assets or funds of the China
Banking Corporation, and for that purpose to liquidate it by collecting
the debts due to said bank from its debtors, and paying its creditors,
and therefore to appoint the Bank of Taiwan as liquidator with the
consequent authority to make the collection, it follows evidently that
the payments by the debtors to the Bank of Taiwan of their debts to
the China Banking Corporation have extinguished their obligation to
the latter. Said payments were made to a person, the Bank of
Taiwan, authorized to receive them in the name of the bank creditor
under article 1162, of the Civil Code. Because it is evident the words
"a person authorized to receive it," as used therein, means not only
a person authorized by the same creditor, but also a person
authorized by law to do so, such as guardian, executor or
administrator of estate of a deceased, and assignee or liquidator of
a partnership or corporation, as well as any other who may be
authorized to do so by law (Manresa, Civil Code, 4th ed. p. 254.)

The fact that the money with which that debts have been paid were
Japanese war notes doe not affect the validity of the payments. The
provision of article 1170 of our Civil Code to the effect that "payment
of debts of money must be made in the species stipulated and if it
not to deliver such specie in silver or gold coins which is legal
tender," in not applicable to the present case, because the contract
between the parties was to pay Philippine pesos and not some
specifically defined species of money. The Philippine peso and halfpesos including the Philippine Treasury Certificate was and is legal
tender in the Philippines under section 612 of the Administrative
Code, as amended by Act No. 4199. As well stated by the Supreme
Court of the United States in Knox vs. Lee and Parker (Legal Tender
Cases, 12 Wall., 457-681, 20 Law. ed., 287). "The expectation of the
creditor and the anticipation of the debtor may have been that the
contract would be discharged by the payment of coined metals, but
neither the expectation of one party to the contract, respecting its
fruits, nor the anticipation of the other, constitutes its obligation.
There is a well-recognized distinction between the expectation of the
parties to a contract and the duty imposed by it. Aspdin vs. Austin, 5
Ad. & Bl. (N.S.) 671; Dunn vs. Sayles, Ibid. 685; Coffin vs. Landis,
46 Pa. 426. Were it not so, the expectation of results would be
always equivalent to a binding engagement that they should follow.
But the obligation of contract to pay money is to pay that which the
law shall recognize as money when the payment is made. If there is
anything settled by decision it is this, and we do not understand it to
be controverted." (Knox vs. Exchange Bank of Virginia, 12 Wall.,
457; 20 U.S. Supreme Court Reports, 20 L. ed., 287, 311.) In said
case it was held that the legal tender for payment of debts
contracted before and after their passage were not inappropriate for
carrying into execution the legitimate purpose of the Government.
And this Court, in Rogers vs. Smith Bell (10 Phil., 319), held that "A
debt of 12,000 pesos created in 1876 can now (1908) be paid by
12,000 of the Philippine pesos authorized by the Act of Congress of
March 2, 1903, although at the time the loan was made which
created the debt, the creditor delivered to the debtor 12,000 pesos in
gold coin."
The power of the military governments established in occupied
enemy territory to issue military currency in the exercise of their
governmental power has never been seriously questioned. Such
power is based, not only on the occupant's general power to
maintain law and order recognized in article 43 of the Hague
Regulations (Feilchenfeld of Belligerent Occupation, paragraph 6),
but on military necessity as shown by the history of the use of
money or currency in wars.
As early as the year 1122, during the siege of Tyre, Doge Micheli
paid his troops in leather money which he promised to redeem when
he returned to Venice (Del Mar, Money and Civilization, 26), and
when Frederick II besieged Milan he also used leather money to pay

his troops, as well as in payment of wages (id. 33). When the French
forces occupied the Ruhr in 1923, they finished the printing of some
Reichsbank notes in process and issued them. (Nussbaum, Money
in the Law, note 6, 158-59.) The British during the Boer War issued
receipts for requisitioned goods and made such receipts readily
negotiable, an arrangement very similar to the issuance of currency
(Spaight, War Rights on Land, 396). During the American
Revolution, the Continental Congress issued currency even before
the issuance of the Declaration of Independence, when the territory
controlled by Congress was held in military occupation against the
then legitimate government. (Dewey, Financial History of the United
States, 37-38; Morrison and Commager, Growth of the American
Republic, 207; Nussbaum, op. cit. supra note, 6, 172-173.) The
Confederacy issued its own currency in Confederate territory
(Thorington vs. Smith, 8 Wall., 1) and also in northern areas
occupied from time to time during the war. (Spaight, op. cit. supra,
note 19, 392.) The Japanese issued special occupation currency in
Korea and Manchuria during the Russo-Japanese War of 1905.
(Takahashi, International Law Applied to Russo-Japanese War,
1908, 260-61; Spaight, op. cit. note 19,397; Ariga, La Guerre RossuJapanese, 1908, 450 et seq.) The British also issued currency notes
redeemable in Sterling in London at a fixed rate of exchange, in their
occupation of Archangel during and after the first World War. (White,
Currency of the Great War, 66; League of Nations, Currency After
the War, 100.)
During the World War II, the Germans had been using a variety of
occupation currencies as legal tenders on a large scale, the
currency initially used in most occupied areas being the
Reichskroditkassa mark, a paper currency printed in German and
denominated in German monetary units, which circulated side by
side with the local currency at decreased rate of exchange. And the
Allies have introduced notes as legal currency in Sicily, Germany,
and Austria. The Combined Directive of the combined Chief of Staffs
to the Supreme Allied Commander issued on June 24, 1943,
directed that the task forces of the U.S. will use, besides regular
U.S. coins, yellow seal dollars, and the forces of Great Britain will
use besides British coins, British Military Notes (BMA), to
supplement the local lire currency then in use (Hajo Holborn,
American Military Government, 1947, pp. 115-116). The Combined
directive for Military Government in Germany, prior to defeat or
surrender, of April 28, 1944, directed the United States, British and
other Allied Forces to use Allied military mark and Reichsmark
currency in circulation in Germany as legal tender and the Allied
Military Marks will be interchangeable with the Reichsmark currency
at the rate of Allied Mark for Reichsmark; and that in the event
adequate supplies of them were not available, the United States
forces will use Yellow seal dollars and the British forces will use
British Military Authority (BMN) notes. (Holborn, op. cit. supra, p.
140.) And the American Directive on the Military Government of

Austria of June 27, 1945, ordered that the United States forces and
other Allied forces within Austria will use only Allied Military
Schillings for pay of troops and other military requirements,
declaring it legal tender in Austria interchangeably with Reichsmarks
at a rate of one Allied military schilling for one Reichsmarks.
(Holborn, op. cit. supra, p. 192.)
In the above cited case of Thorington vs. Smith, the Supreme Court
of the United States said:
. . . While the war lasted, however, they had a certain contingent
value, and were used as money in nearly all business transactions
of many millions of people. They must be regarded, therefore, as a
currency, imposed on the community by irresistible force.
It seems to follows as a necessary consequence from this actual
supremacy of the insurgent government, as a belligerent, within the
territory where it circulated, and from the necessity of civil obedience
on the part of all who remained in it, that this currency must be
considered in courts of law in the same light as it has been issued
by a foreign government, temporarily occupying a part of the territory
of the United States."
According to Feilchenfeld in his book "The International Economic
Law of Belligerent Occupation," the occupant in exercising his
powers in regard to money and currency, may adopt one of the
following methods according to circumstances: (1) When the
coverage of the currency of the territory occupied has become
inadequate as found in several Balkan countries during the War of
1914-18, and "the local currency continues to be used, an occupant
may reorganize the national currency by appropriate methods, such
as the creation of new types and supplies of coverage" (paragraph
272). (2) The occupant may, and not infrequently, use his own
currency, in the occupied region. But this method may be found
inconvenient if the coverage for their national currency had already
become inadequate, and for that reason authorities are afraid of
exposing it to additional strain, and for that reason an occupant may
not replace the local currency by his own currency for all currency
for all purposes, and enforce its use not only for his own payment
but also for payments among inhabitants (paragraph 285). (3)
Where the regional currency has become inadequate and it is
deemed inadvisable by the occupant to expose his own currency to
further strain, new types of money may be created by the occupant.
Such new currency may have anew name and may be issued by
institution created for that purpose (paragraph 296). This last
method was the one adopted by Japan in this country, because the
coverage of the Philippine Treasury Certificate of the territory
occupied had become inadequate, for most if not all of the said
coverage had been taken to the United States and many millions of

silver pesos were buried or thrown into the sea near Corregidor, and
Japan did not want to use her national currency, and expose it to
additional strains.
But be that as it may, whatever might have been the intrinsic or
extrinsic worth of the Japanese war-notes which the Bank of Taiwan
has received as full satisfaction of the obligations of the appellee's
debtors to it, is of no consequence in the present case. As we have
already stated, the Japanese war-notes were issued as legal tender
at par with the Philippine peso, and guaranteed by Japanese
Government "which takes full responsibility for their usage having
the correct amount to back them up (Proclamation of January 3,
1942). Now that the outcome of the war has turned against Japan,
the enemy banks have the right to demand from Japan, through
their States or Governments, payments or compensation in
Philippine peso or U.S. dollars as the case may be, for the loss or
damage inflicted on the property by the emergency war measure
taken by the enemy. If Japan had won the war of were the victor, the
property or money of said banks sequestrated or impounded by her
might be retained by Japan and credited to the respective State of
which the owners of said banks were nationals, as a payment on the
account of the sums payable by them as indemnity under the
treaties, and the said owners were to look for compensation in
Philippine pesos or U.S. dollars to their respective States. (Treaty of
Versailles and other peace treaties entered at the close of the first
world war; VI Hackworth Digest of International Law, p. 232.) And if
they cannot et any or sufficient compensation either from the enemy
or from their States, because of their insolvency or impossibility to
pay, they have naturally to suffer, as everyone else, the losses
incident to all wars.
In view of all the foregoing, the judgement appealed from is
reversed, and the defendant-appellee is sentenced to execute the
deed of cancellation of mortgage of the property described in the
complaint, and to deliver to the plaintiff-appellant the Transfer
Certificate of Title No. 47634 of the Register of Deeds in Manila with
the annotation of mortgage therein already cancelled, without
pronouncement as to costs. So ordered.
MIJARES v ranada

Our martial law experience bore strange unwanted fruits, and

we have yet to finish weeding out its bitter crop. While the
restoration of freedom and the fundamental structures and
processes of democracy have been much lauded, according to a
significant number, the changes, however, have not sufficiently
healed the colossal damage wrought under the oppressive
conditions of the martial law period. The cries of justice for the

tortured, the murdered, and the desaparecidos arouse outrage and

sympathy in the hearts of the fair-minded, yet the dispensation of the
appropriate relief due them cannot be extended through the same
caprice or whim that characterized the ill-wind of martial rule. The
damage done was not merely personal but institutional, and the
proper rebuke to the iniquitous past has to involve the award of
reparations due within the confines of the restored rule of law.
The petitioners in this case are prominent victims of human
rights violations[1] who, deprived of the opportunity to directly
confront the man who once held absolute rule over this country,
have chosen to do battle instead with the earthly representative, his
estate. The clash has been for now interrupted by a trial court ruling,
seemingly comported to legal logic, that required the petitioners to
pay a whopping filing fee of over Four Hundred Seventy-Two Million
Pesos (P472,000,000.00) in order that they be able to enforce a
judgment awarded them by a foreign court. There is an
understandable temptation to cast the struggle within the simplistic
confines of a morality tale, and to employ short-cuts to arrive at what
might seem the desirable solution. But easy, reflexive resort to the
equity principle all too often leads to a result that may be morally
correct, but legally wrong.
Nonetheless, the application of the legal principles involved in
this case will comfort those who maintain that our substantive and
procedural laws, for all their perceived ambiguity and susceptibility
to myriad interpretations, are inherently fair and just. The relief
sought by the petitioners is expressly mandated by our laws and
conforms to established legal principles. The granting of this petition
for certiorari is warranted in order to correct the legally infirm and
unabashedly unjust ruling of the respondent judge.
The essential facts bear little elaboration. On 9 May 1991, a
complaint was filed with the United States District Court (US District
Court), District of Hawaii, against the Estate of former Philippine
President Ferdinand E. Marcos (Marcos Estate). The action was
brought forth by ten Filipino citizens [2] who each alleged having
suffered human rights abuses such as arbitrary detention, torture
and rape in the hands of police or military forces during the Marcos
regime.[3] The Alien Tort Act was invoked as basis for the US District
Courts jurisdiction over the complaint, as it involved a suit by aliens
for tortious violations of international law.[4] These plaintiffs brought
the action on their own behalf and on behalf of a class of similarly
situated individuals, particularly consisting of all current civilian
citizens of the Philippines, their heirs and beneficiaries, who
between 1972 and 1987 were tortured, summarily executed or had
disappeared while in the custody of military or paramilitary groups.
Plaintiffs alleged that the class consisted of approximately ten

thousand (10,000) members; hence, joinder of all these persons

was impracticable.
The institution of a class action suit was warranted under Rule
23(a) and (b)(1)(B) of the US Federal Rules of Civil Procedure, the
provisions of which were invoked by the plaintiffs. Subsequently, the
US District Court certified the case as a class action and created
three (3) sub-classes of torture, summary execution and
disappearance victims.[5] Trial ensued, and subsequently a jury
rendered a verdict and an award of compensatory and exemplary
damages in favor of the plaintiff class. Then, on 3 February 1995,
the US District Court, presided by Judge Manuel L. Real, rendered a
Final Judgment (Final Judgment) awarding the plaintiff class a total
of One Billion Nine Hundred Sixty Four Million Five Thousand Eight
Hundred Fifty Nine Dollars and Ninety Cents ($1,964,005,859.90).
The Final Judgment was eventually affirmed by the US Court of
Appeals for the Ninth Circuit, in a decision rendered on 17
December 1996.[6]
On 20 May 1997, the present petitioners filed Complaint with
the Regional Trial Court, City of Makati (Makati RTC) for the
enforcement of the Final Judgment. They alleged that they are
members of the plaintiff class in whose favor the US District Court
awarded damages.[7] They argued that since the Marcos Estate
failed to file a petition for certiorari with the US Supreme Court after
the Ninth Circuit Court of Appeals had affirmed the Final Judgment,
the decision of the US District Court had become final and
executory, and hence should be recognized and enforced in the
Philippines, pursuant to Section 50, Rule 39 of the Rules of Court
then in force.[8]
On 5 February 1998, the Marcos Estate filed a motion to
dismiss, raising, among others, the non-payment of the correct filing
fees. It alleged that petitioners had only paid Four Hundred Ten
Pesos (P410.00) as docket and filing fees, notwithstanding the fact
that they sought to enforce a monetary amount of damages in the
amount of over Two and a Quarter Billion US Dollars (US$2.25
Billion). The Marcos Estate cited Supreme Court Circular No. 7,
pertaining to the proper computation and payment of docket fees. In
response, the petitioners claimed that an action for the enforcement
of a foreign judgment is not capable of pecuniary estimation; hence,
a filing fee of only Four Hundred Ten Pesos (P410.00) was proper,
pursuant to Section 7(c) of Rule 141.[9]
On 9 September 1998, respondent Judge Santiago Javier
Ranada[10] of the Makati RTC issued the subject Order dismissing
the complaint without prejudice. Respondent judge opined that
contrary to the petitioners submission, the subject matter of the
complaint was indeed capable of pecuniary estimation, as it involved

a judgment rendered by a foreign court ordering the payment of

definite sums of money, allowing for easy determination of the value
of the foreign judgment. On that score, Section 7(a) of Rule 141 of
the Rules of Civil Procedure would find application, and the RTC
estimated the proper amount of filing fees was approximately Four
Hundred Seventy Two Million Pesos, which obviously had not been
paid.
Not surprisingly, petitioners filed a Motion for Reconsideration,
which Judge Ranada denied in an Order dated 28 July 1999. From
this denial, petitioners filed a Petition for Certiorariunder Rule 65
assailing the twin orders of respondent judge. [11] They prayed for the
annulment of the questioned orders, and an order directing the
reinstatement of Civil Case No. 97-1052 and the conduct of
appropriate proceedings thereon.
Petitioners submit that their action is incapable of pecuniary
estimation as the subject matter of the suit is the enforcement of a
foreign judgment, and not an action for the collection of a sum of
money or recovery of damages. They also point out that to require
the class plaintiffs to pay Four Hundred Seventy Two Million Pesos
(P472,000,000.00) in filing fees would negate and render inutile the
liberal construction ordained by the Rules of Court, as required by
Section 6, Rule 1 of the Rules of Civil Procedure, particularly the
inexpensive disposition of every action.
Petitioners invoke Section 11, Article III of the Bill of Rights of
the Constitution, which provides that Free access to the courts and
quasi-judicial bodies and adequate legal assistance shall not be
denied to any person by reason of poverty, a mandate which is
essentially defeated by the required exorbitant filing fee. The
adjudicated amount of the filing fee, as arrived at by the RTC, was
characterized as indisputably unfair, inequitable, and unjust.

estate. There is no basis for the issuance a limited pro hac

vice ruling based on the special circumstances of the petitioners as
victims of martial law, or on the emotionally-charged allegation of
human rights abuses.
An examination of Rule 141 of the Rules of Court readily
evinces that the respondent judge ignored the clear letter of the law
when he concluded that the filing fee be computed based on the
total sum claimed or the stated value of the property in litigation.
In dismissing the complaint, the respondent judge relied on
Section 7(a), Rule 141 as basis for the computation of the filing fee
of over P472 Million. The provision states:
SEC. 7. Clerk of Regional Trial Court.(a) For filing an action or a permissive counterclaim or money
claim against an estate not based on judgment, or for filing with leave of
court a third-party, fourth-party, etc., complaint, or a complaint in
intervention, and for all clerical services in the same time, if the total sum
claimed, exclusive of interest, or the started value of the property in
litigation, is:
1. Less than P 100,00.00 P 500.00
2. P 100,000.00 or more - P 800.00
but less than P 150,000.00
3. P 150,000.00 or more but - P 1,000.00
less than P 200,000.00

The Commission on Human Rights (CHR) was permitted to

intervene in this case.[12] It urged that the petition be granted and a
judgment rendered, ordering the enforcement and execution of the
District Court judgment in accordance with Section 48, Rule 39 of
the 1997 Rules of Civil Procedure. For the CHR, the Makati RTC
erred in interpreting the action for the execution of a foreign
judgment as a new case, in violation of the principle that once a
case has been decided between the same parties in one country on
the same issue with finality, it can no longer be relitigated again in
another country.[13] The CHR likewise invokes the principle of comity,
and of vested rights.
The Courts disposition on the issue of filing fees will prove a
useful jurisprudential guidepost for courts confronted with actions
enforcing foreign judgments, particularly those lodged against an

4. P 200,000.00 or more but

less than P 250,000.00 - P 1,500.00
5. P 250,000.00 or more but
less than P 300,00.00 - P 1,750.00
6. P 300,000.00 or more but
not more than P 400,000.00 - P 2,000.00

7. P 350,000.00 or more but not

of the subject matter

more than P400,000.00 - P 2,250.00

cannot be estimated --- P 600.00

8. For each P 1,000.00 in excess of

P 400,000.00 - P 10.00
...
(Emphasis supplied)
Obviously, the above-quoted provision covers, on one hand,
ordinary actions, permissive counterclaims, third-party, etc.
complaints and complaints-in-interventions, and on the other, money
claims against estates which are not based on judgment. Thus, the
relevant question for purposes of the present petition is whether the
action filed with the lower court is a money claim against an estate
not based on judgment.
Petitioners complaint may have been lodged against an
estate, but it is clearly based on a judgment, the Final Judgment of
the US District Court. The provision does not make any distinction
between a local judgment and a foreign judgment, and where the
law does not distinguish, we shall not distinguish.
A reading of Section 7 in its entirety reveals several instances
wherein the filing fee is computed on the basis of the amount of the
relief sought, or on the value of the property in litigation. The filing
fee for requests for extrajudicial foreclosure of mortgage is based on
the amount of indebtedness or the mortgagees claim. [14] In special
proceedings involving properties such as for the allowance of wills,
the filing fee is again based on the value of the property.[15] The
aforecited rules evidently have no application to petitioners
complaint.
Petitioners rely on Section 7(b), particularly the proviso on
actions where the value of the subject matter cannot be estimated.
The provision reads in full:
SEC. 7. Clerk of Regional Trial Court.(b) For filing
1. Actions where the value

2. Special civil actions except

judicial foreclosure which

in our jurisprudence beginning with Ingenholl v. Walter E. Olsen &

Co.[19] The conditions required by the Philippines for recognition and
enforcement of a foreign judgment were originally contained in
Section 311 of the Code of Civil Procedure, which was taken from
the California Code of Civil Procedure which, in turn, was derived
from the California Act of March 11, 1872.[20] Remarkably, the
procedural rule now outlined in Section 48, Rule 39 of the Rules of
Civil Procedure has remained unchanged down to the last word in
nearly a century. Section 48 states:

shall be governed by
paragraph (a) above --- P 600.00
3. All other actions not
involving property --- P 600.00
In a real action, the assessed value of the property, or if there is none, the
estimated value, thereof shall be alleged by the claimant and shall be the
basis in computing the fees.
It is worth noting that the provision also provides that in real
actions, the assessed value or estimated value of the property shall
be alleged by the claimant and shall be the basis in computing the
fees. Yet again, this provision does not apply in the case at bar. A
real action is one where the plaintiff seeks the recovery of real
property or an action affecting title to or recovery of possession of
real property.[16] Neither the complaint nor the award of damages
adjudicated by the US District Court involves any real property of the
Marcos Estate.
Thus, respondent judge was in clear and serious error when
he concluded that the filing fees should be computed on the basis of
the schematic table of Section 7(a), as the action involved pertains
to a claim against an estate based on judgment. What provision, if
any, then should apply in determining the filing fees for an action to
enforce a foreign judgment?
To resolve this question, a proper understanding is required
on the nature and effects of a foreign judgment in this jurisdiction.
The rules of comity, utility and convenience of nations have
established a usage among civilized states by which final judgments
of foreign courts of competent jurisdiction are reciprocally respected
and rendered efficacious under certain conditions that may vary in
different countries.[17] This principle was prominently affirmed in the
leading American case ofHilton v. Guyot[18] and expressly recognized

SEC. 48. Effect of foreign judgments. The effect of a judgment of a

tribunal of a foreign country, having jurisdiction to pronounce the judgment
is as follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive
upon the title to the thing;
(b) In case of a judgment against a person, the judgment is presumptive
evidence of a right as between the parties and their successors in interest by
a subsequent title;
In either case, the judgment or final order may be repelled by evidence of a
want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.
There is an evident distinction between a foreign judgment in
an action in rem and one in personam. For an action in rem, the
foreign judgment is deemed conclusive upon the title to the thing,
while in an action in personam, the foreign judgment is presumptive,
and not conclusive, of a right as between the parties and their
successors in interest by a subsequent title. [21]However, in both
cases, the foreign judgment is susceptible to impeachment in our
local courts on the grounds of want of jurisdiction or notice to the
party,[22] collusion, fraud,[23] or clear mistake of law or fact.[24] Thus,
the party aggrieved by the foreign judgment is entitled to defend
against the enforcement of such decision in the local forum. It is
essential that there should be an opportunity to challenge the foreign
judgment, in order for the court in this jurisdiction to properly
determine its efficacy.[25]
It is clear then that it is usually necessary for an action to be
filed in order to enforce a foreign judgment[26], even if such judgment
has conclusive effect as in the case of in rem actions, if only for the
purpose of allowing the losing party an opportunity to challenge the
foreign judgment, and in order for the court to properly determine its
efficacy.[27] Consequently, the party attacking a foreign judgment has
the burden of overcoming the presumption of its validity.[28]

The rules are silent as to what initiatory procedure must be

undertaken in order to enforce a foreign judgment in the Philippines.
But there is no question that the filing of a civil complaint is an
appropriate measure for such purpose. A civil action is one by which
a party sues another for the enforcement or protection of a right,
[29]
and clearly an action to enforce a foreign judgment is in essence
a vindication of a right prescinding either from a conclusive judgment
upon title or the presumptive evidence of a right.[30] Absent perhaps
a statutory grant of jurisdiction to a quasi-judicial body, the claim for
enforcement of judgment must be brought before the regular courts.
[31]

There are distinctions, nuanced but discernible, between the

cause of action arising from the enforcement of a foreign judgment,
and that arising from the facts or allegations that occasioned the
foreign judgment. They may pertain to the same set of facts, but
there is an essential difference in the right-duty correlatives that are
sought to be vindicated. For example, in a complaint for damages
against a tortfeasor, the cause of action emanates from the violation
of the right of the complainant through the act or omission of the
respondent. On the other hand, in a complaint for the enforcement
of a foreign judgment awarding damages from the same tortfeasor,
for the violation of the same right through the same manner of
action, the cause of action derives not from the tortious act but from
the foreign judgment itself.
More importantly, the matters for proof are different. Using the
above example, the complainant will have to establish before the
court the tortious act or omission committed by the tortfeasor, who in
turn is allowed to rebut these factual allegations or prove
extenuating circumstances. Extensive litigation is thus conducted on
the facts, and from there the right to and amount of damages are
assessed. On the other hand, in an action to enforce a foreign
judgment, the matter left for proof is the foreign judgment itself, and
not the facts from which it prescinds.
As stated in Section 48, Rule 39, the actionable issues are
generally restricted to a review of jurisdiction of the foreign court, the
service of personal notice, collusion, fraud, or mistake of fact or law.
The limitations on review is in consonance with a strong and
pervasive policy in all legal systems to limit repetitive litigation on
claims and issues.[32] Otherwise known as the policy of preclusion, it
seeks to protect party expectations resulting from previous litigation,
to safeguard against the harassment of defendants, to insure that
the task of courts not be increased by never-ending litigation of the
same disputes, and in a larger sense to promote what Lord Coke in
the Ferrers Case of 1599 stated to be the goal of all law: rest and
quietness.[33] If every judgment of a foreign court were reviewable on
the merits, the plaintiff would be forced back on his/her original

cause of action, rendering immaterial the previously concluded

litigation.[34]
Petitioners appreciate this distinction, and rely upon it to
support the proposition that the subject matter of the complaintthe
enforcement of a foreign judgmentis incapable of pecuniary
estimation. Admittedly the proposition, as it applies in this case, is
counter-intuitive, and thus deserves strict scrutiny. For in all practical
intents and purposes, the matter at hand is capable of pecuniary
estimation, down to the last cent. In the assailed Order, the
respondent judge pounced upon this point without equivocation:
The Rules use the term where the value of the subject matter cannot be
estimated. The subject matter of the present case is the judgment rendered
by the foreign court ordering defendant to pay plaintiffs definite sums of
money, as and for compensatory damages. The Court finds that the value of
the foreign judgment can be estimated; indeed, it can even be easily
determined. The Court is not minded to distinguish between the
enforcement of a judgment and the amount of said judgment, and separate
the two, for purposes of determining the correct filing fees. Similarly, a
plaintiff suing on promissory note for P1 million cannot be allowed to pay
only P400 filing fees (sic), on the reasoning that the subject matter of his
suit is not the P1 million, but the enforcement of the promissory note, and
that the value of such enforcement cannot be estimated.[35]
The jurisprudential standard in gauging whether the subject
matter of an action is capable of pecuniary estimation is wellentrenched. The Marcos Estate cites Singsong v. Isabela Sawmill
and Raymundo v. Court of Appeals, which ruled:
[I]n determining whether an action is one the subject matter of which is not
capable of pecuniary estimation this Court has adopted the criterion of first
ascertaining the nature of the principal action or remedy sought. If it is
primarily for the recovery of a sum of money, the claim is considered
capable of pecuniary estimation, and whether jurisdiction is in the
municipal courts or in the courts of first instance would depend on the
amount of the claim. However, where the basic issue is something other
than the right to recover a sum of money, where the money claim is purely
incidental to, or a consequence of, the principal relief sought, this Court has
considered such actions as cases where the subject of the litigation may not
be estimated in terms of money, and are cognizable exclusively by courts of
first instance (now Regional Trial Courts).
On the other hand, petitioners cite the ponencia of Justice JBL
Reyes
in Lapitan
v.
Scandia,[36] from
which
the
rule
in Singsong and Raymundo actually derives, but which incorporates
this additional nuance omitted in the latter cases:

xxx However, where the basic issue is something other than the right to
recover a sum of money, where the money claim is purely incidental to, or
a consequence of, the principal relief sought, like in suits to have the
defendant perform his part of the contract (specific performance) and
in actions for support, or for annulment of judgment or to foreclose a
mortgage, this Court has considered such actions as cases where the
subject of the litigation may not be estimated in terms of money, and are
cognizable exclusively by courts of first instance.[37]
Petitioners go on to add that among the actions the Court has
recognized as being incapable of pecuniary estimation include
legality of conveyances and money deposits,[38] validity of a
mortgage,[39] the right to support,[40] validity of documents,
[41]
rescission of contracts,[42] specific performance,[43] and validity or
annulment of judgments.[44] It is urged that an action for enforcement
of a foreign judgment belongs to the same class.
This is an intriguing argument, but ultimately it is self-evident
that while the subject matter of the action is undoubtedly the
enforcement of a foreign judgment, the effect of a providential award
would be the adjudication of a sum of money. Perhaps in theory,
such an action is primarily for the enforcement of the foreign
judgment, but there is a certain obtuseness to that sort of argument
since there is no denying that the enforcement of the foreign
judgment will necessarily result in the award of a definite sum of
money.
But before we insist upon this conclusion past beyond the
point of reckoning, we must examine its possible ramifications.
Petitioners raise the point that a declaration that an action for
enforcement of foreign judgment may be capable of pecuniary
estimation might lead to an instance wherein a first level court such
as the Municipal Trial Court would have jurisdiction to enforce a
foreign judgment. But under the statute defining the jurisdiction of
first level courts, B.P. 129, such courts are not vested with
jurisdiction over actions for the enforcement of foreign judgments.
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Courts in civil cases. Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall
exercise:
(1) Exclusive original jurisdiction over civil actions and probate
proceedings, testate and intestate, including the grant of provisional
remedies in proper cases, where the value of the personal property,
estate, or amount of the demand does not exceed One hundred
thousand pesos (P100,000.00) or, in Metro Manila where such
personal property, estate, or amount of the demand does not exceed
Two hundred thousand pesos (P200,000.00) exclusive of interest

damages of whatever kind, attorney's fees, litigation expenses, and

costs, the amount of which must be specifically alleged: Provided,
That where there are several claims or causes of action between the
same or different parties, embodied in the same complaint, the
amount of the demand shall be the totality of the claims in all the
causes of action, irrespective of whether the causes of action arose
out of the same or different transactions;
(2) Exclusive original jurisdiction over cases of forcible entry and
unlawful detainer: Provided, That when, in such cases, the
defendant raises the question of ownership in his pleadings and the
question of possession cannot be resolved without deciding the
issue of ownership, the issue of ownership shall be resolved only to
determine the issue of possession.
(3) Exclusive original jurisdiction in all civil actions which involve title
to, or possession of, real property, or any interest therein where the
assessed value of the property or interest therein does not exceed
Twenty thousand pesos (P20,000.00) or, in civil actions in Metro
Manila, where such assessed value does not exceed Fifty thousand
pesos (P50,000.00) exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses and costs: Provided, That value
of such property shall be determined by the assessed value of the
adjacent lots.[45]
Section 33 of B.P. 129 refers to instances wherein the cause
of action or subject matter pertains to an assertion of rights and
interests over property or a sum of money. But as earlier pointed
out, the subject matter of an action to enforce a foreign judgment is
the foreign judgment itself, and the cause of action arising from the
adjudication of such judgment.
An examination of Section 19(6), B.P. 129 reveals that the
instant complaint for enforcement of a foreign judgment, even if
capable of pecuniary estimation, would fall under the jurisdiction of
the Regional Trial Courts, thus negating the fears of the petitioners.
Indeed, an examination of the provision indicates that it can be
relied upon as jurisdictional basis with respect to actions for
enforcement of foreign judgments, provided that no other court or
office is vested jurisdiction over such complaint:
Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise
exclusive original jurisdiction:
xxx

(6) In all cases not within the exclusive jurisdiction of any court, tribunal,
person or body exercising jurisdiction or any court, tribunal, person or body
exercising judicial or quasi-judicial functions.

recognized as representing current scholarly thought on the topic.

[56]
Neither the Philippines nor the United States are signatories to
the Convention.

Thus, we are comfortable in asserting the obvious, that the

complaint to enforce the US District Court judgment is one capable
of pecuniary estimation. But at the same time, it is also an action
based on judgment against an estate, thus placing it beyond the
ambit of Section 7(a) of Rule 141. What provision then governs the
proper computation of the filing fees over the instant complaint? For
this case and other similarly situated instances, we find that it is
covered by Section 7(b)(3), involving as it does, other actions not
involving property.

Yet even if there is no unanimity as to the applicable theory

behind the recognition and enforcement of foreign judgments or a
universal treaty rendering it obligatory force, there is consensus that
the viability of such recognition and enforcement is essential. Steiner
and Vagts note:

Notably, the amount paid as docket fees by the petitioners on

the premise that it was an action incapable of pecuniary estimation
corresponds to the same amount required for other actions not
involving property. The petitioners thus paid the correct amount of
filing fees, and it was a grave abuse of discretion for respondent
judge to have applied instead a clearly inapplicable rule and
dismissed the complaint.
There is another consideration of supreme relevance in this
case, one which should disabuse the notion that the doctrine
affirmed in this decision is grounded solely on the letter of the
procedural rule. We earlier adverted to the the internationally
recognized policy of preclusion,[46] as well as the principles of comity,
utility and convenience of nations[47] as the basis for the evolution of
the rule calling for the recognition and enforcement of foreign
judgments. The US Supreme Court in Hilton v. Guyot[48] relied
heavily on the concept of comity, as especially derived from the
landmark treatise of Justice Story in his Commentaries on the
Conflict of Laws of 1834.[49] Yet the notion of comity has since been
criticized as one of dim contours[50] or suffering from a number of
fallacies.[51] Other conceptual bases for the recognition of foreign
judgments have evolved such as the vested rights theory or the
modern doctrine of obligation.[52]
There have been attempts to codify through treaties or
multilateral agreements the standards for the recognition and
enforcement of foreign judgments, but these have not borne fruition.
The members of the European Common Market accede to
the Judgments Convention, signed in 1978, which eliminates as to
participating countries all of such obstacles to recognition such as
reciprocity and rvision au fond.[53] The most ambitious of these
attempts is the Convention on the Recognition and Enforcement of
Foreign Judgments in Civil and Commercial Matters, prepared in
1966 by the Hague Conference of International Law.[54] While it has
not received the ratifications needed to have it take effect, [55] it is

. . . The notion of unconnected bodies of national law on private

international law, each following a quite separate path, is not one conducive
to the growth of a transnational community encouraging travel and
commerce among its members. There is a contemporary resurgence of
writing stressing the identity or similarity of the values that systems of
public and private international law seek to further a community interest in
common, or at least reasonable, rules on these matters in national legal
systems. And such generic principles as reciprocity play an important role
in both fields.[57]
Salonga, whose treatise on private international law is of
worldwide renown, points out:
Whatever be the theory as to the basis for recognizing foreign judgments,
there can be little dispute that the end is to protect the reasonable
expectations and demands of the parties. Where the parties have submitted
a matter for adjudication in the court of one state, and proceedings there are
not tainted with irregularity, they may fairly be expected to submit, within
the state or elsewhere, to the enforcement of the judgment issued by the
court.[58]
There is also consensus as to the requisites for recognition of
a foreign judgment and the defenses against the enforcement
thereof. As earlier discussed, the exceptions enumerated in Section
48, Rule 39 have remain unchanged since the time they were
adapted in this jurisdiction from long standing American rules. The
requisites and exceptions as delineated under Section 48 are but a
restatement of generally accepted principles of international law.
Section 98 of The Restatement, Second, Conflict of Laws, states
that a valid judgment rendered in a foreign nation after a fair trial in a
contested proceeding will be recognized in the United States, and
on its face, the term valid brings into play requirements such notions
as valid jurisdiction over the subject matter and parties. [59] Similarly,
the notion that fraud or collusion may preclude the enforcement of a
foreign judgment finds affirmation with foreign jurisprudence and
commentators,[60] as well as the doctrine that the foreign judgment
must not constitute a clear mistake of law or fact. [61] And finally, it has
been recognized that public policy as a defense to the recognition of

judgments serves as an umbrella for a variety of concerns in

international practice which may lead to a denial of recognition.[62]
The viability of the public policy defense against the
enforcement of a foreign judgment has been recognized in this
jurisdiction.[63] This defense allows for the application of local
standards in reviewing the foreign judgment, especially when such
judgment creates only a presumptive right, as it does in cases
wherein the judgment is against a person. [64] The defense is also
recognized within the international sphere, as many civil law nations
adhere to a broad public policy exception which may result in a
denial of recognition when the foreign court, in the light of the
choice-of-law rules of the recognizing court, applied the wrong law to
the case.[65] The public policy defense can safeguard against
possible abuses to the easy resort to offshore litigation if it can be
demonstrated that the original claim is noxious to our constitutional
values.
There is no obligatory rule derived from treaties or
conventions that requires the Philippines to recognize foreign
judgments, or allow a procedure for the enforcement thereof.
However, generally accepted principles of international law, by virtue
of the incorporation clause of the Constitution, form part of the laws
of the land even if they do not derive from treaty obligations. [66] The
classical formulation in international law sees those customary rules
accepted as binding result from the combination two elements: the
established, widespread, and consistent practice on the part of
States; and a psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it.[67]
While the definite conceptual parameters of the recognition
and enforcement of foreign judgments have not been authoritatively
established, the Court can assert with certainty that such an
undertaking is among those generally accepted principles of
international law.[68] As earlier demonstrated, there is a widespread
practice among states accepting in principle the need for such
recognition and enforcement, albeit subject to limitations of varying
degrees. The fact that there is no binding universal treaty governing
the practice is not indicative of a widespread rejection of the
principle, but only a disagreement as to the imposable specific rules
governing the procedure for recognition and enforcement.
Aside from the widespread practice, it is indubitable that the
procedure for recognition and enforcement is embodied in the rules
of law, whether statutory or jurisprudential, adopted in various
foreign jurisdictions. In the Philippines, this is evidenced primarily by
Section 48, Rule 39 of the Rules of Court which has existed in its

current form since the early 1900s. Certainly, the Philippine legal
system has long ago accepted into its jurisprudence and procedural
rules the viability of an action for enforcement of foreign judgment,
as well as the requisites for such valid enforcement, as derived from
internationally accepted doctrines. Again, there may be distinctions
as to the rules adopted by each particular state, [69] but they all
prescind from the premise that there is a rule of law obliging states
to allow for, however generally, the recognition and enforcement of a
foreign judgment. The bare principle, to our mind, has attained the
status of opinio juris in international practice.
This is a significant proposition, as it acknowledges that the
procedure and requisites outlined in Section 48, Rule 39 derive their
efficacy not merely from the procedural rule, but by virtue of the
incorporation clause of the Constitution. Rules of procedure are
promulgated by the Supreme Court, [70] and could very well be
abrogated or revised by the high court itself. Yet the Supreme Court
is obliged, as are all State components, to obey the laws of the land,
including generally accepted principles of international law which
form part thereof, such as those ensuring the qualified recognition
and enforcement of foreign judgments.[71]
Thus, relative to the enforcement of foreign judgments in the
Philippines, it emerges that there is a general right recognized within
our body of laws, and affirmed by the Constitution, to seek
recognition and enforcement of foreign judgments, as well as a right
to defend against such enforcement on the grounds of want of
jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.

The preclusion of an action for enforcement of a foreign

judgment in this country merely due to an exhorbitant assessment of
docket fees is alien to generally accepted practices and principles in
international law. Indeed, there are grave concerns in conditioning
the amount of the filing fee on the pecuniary award or the value of
the property subject of the foreign decision. Such pecuniary award
will almost certainly be in foreign denomination, computed in
accordance with the applicable laws and standards of the forum.
[72]
The vagaries of inflation, as well as the relative low-income
capacity of the Filipino, to date may very well translate into an award
virtually unenforceable in this country, despite its integral validity, if
the docket fees for the enforcement thereof were predicated on the
amount of the award sought to be enforced. The theory adopted by
respondent judge and the Marcos Estate may even lead to
absurdities, such as if applied to an award involving real property
situated in places such as the United States or Scandinavia where
real property values are inexorably high. We cannot very well
require that the filing fee be computed based on the value of the
foreign property as determined by the standards of the country
where it is located.
As crafted, Rule 141 of the Rules of Civil Procedure avoids
unreasonableness, as it recognizes that the subject matter of an
action for enforcement of a foreign judgment is the foreign judgment
itself, and not the right-duty correlatives that resulted in the foreign
judgment. In this particular circumstance, given that the complaint is
lodged against an estate and is based on the US District
Courts Final Judgment, this foreign judgment may, for purposes of
classification under the governing procedural rule, be deemed as
subsumed under Section 7(b)(3) of Rule 141, i.e., within the class of
all other actions not involving property. Thus, only the blanket filing
fee of minimal amount is required.
Finally, petitioners also invoke Section 11, Article III of the
Constitution, which states that [F]ree access to the courts and quasijudicial bodies and adequate legal assistance shall not be denied to
any person by reason of poverty. Since the provision is among the
guarantees ensured by the Bill of Rights, it certainly gives rise to a
demandable right. However, now is not the occasion to elaborate on
the parameters of this constitutional right. Given our preceding
discussion, it is not necessary to utilize this provision in order to
grant the relief sought by the petitioners. It is axiomatic that the
constitutionality of an act will not be resolved by the courts if the
controversy can be settled on other grounds[73] or unless the
resolution thereof is indispensable for the determination of the case.
[74]

One more word. It bears noting that Section 48, Rule 39

acknowledges that the Final Judgment is not conclusive yet, but

presumptive evidence of a right of the petitioners against the Marcos

Estate. Moreover, the Marcos Estate is not precluded to present
evidence, if any, of want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact. This ruling, decisive
as it is on the question of filing fees and no other, does not render
verdict on the enforceability of the Final Judgment before the courts
under the jurisdiction of the Philippines, or for that matter any other
issue which may legitimately be presented before the trial court.
Such issues are to be litigated before the trial court, but within the
confines of the matters for proof as laid down in Section 48, Rule 39.
On the other hand, the speedy resolution of this claim by the trial
court is encouraged, and contumacious delay of the decision on the
merits will not be brooked by this Court.
WHEREFORE, the petition is GRANTED. The assailed orders
are NULLIFIED and SET ASIDE, and a new order REINSTATING
Civil Case No. 97-1052 is hereby issued. No costs.

Facts:
Petition for certiorari seeking to nullify the Revised
Implementing Rules and Regulations (RIRR) of E.O. 51 (Milk
Code). Petitioner claims that the RIRR is not valid as it
contains provisions that are not constitutional and go
beyond what it is supposed to implement. Milk Code was
issued by President Cory Aquino under the Freedom
Constitution on Oct.1986. One of the preambular clauses of
the Milk Code states that the law seeks to give effect to Art
11 of the Intl Code of Marketing and Breastmilk
Substitutes(ICBMS), a code adopted by the World Health
Assembly(WHA). From 1982-2006, The WHA also adopted

severe resolutions to the effect that breastfeeding should

be supported, hence, it should be ensured that nutrition and
health claims are not permitted for breastmilk substitutes.
In 2006, the DOH issued the assailed RIRR.
Issue:
Sub-Issue: W/N the pertinent intl agreements entered into
by the Phil are part of the law of the land and may be
implemented by DOH through the RIRR. If yes, W/N the RIRR
is in accord with intl agreements

MAIN: W/N the DOH acted w/o or in excess of their

jurisdiction, or with grave abuse of discretion amounting to
lack of excess of jurisdiction and in violation of the
Constitution by promulgating the RIRR.
Held:
Sub-issue:
Yes for ICBMS. Under 1987 Consti, intl law can become
domestic law by transformation (thru constitutional
mechanism such as local legislation) or incorporation (mere
constitutional declaration i.e treaties) The ICBMS and WHA
resolutions were not treaties as they have not been
concurred by 2/3 of all members of the Senate as required
under Sec, 21, Art 8. However, the ICBMS had been
transformed into domestic law through a local legislation
such as the Milk Code. The Milk Code is almost a verbatim
reproduction of ICBMS.

No for WHA Resolutions. The Court ruled that DOH failed to

establish that the provisions pertinent WHA resolutions are
customary intl law that may be deemed part of the law of
the land. For an intl rule to be considered as customary
law, it must be established that such rule is being followed
by states because they consider it as obligatory to comply
with such rules (opinion juris). The WHO resolutions,
although signed by most of the member states, were
enforced or practiced by at least a majority of member
states. Unlike the ICBMS whereby legislature enacted most
of the provisions into the law via the Milk Code, the WHA
Resolutions (specifically providing for exclusive
breastfeeding from 0-6 months, breastfeeding up to 24
Months and absolutely prohibiting ads for breastmilk
substitutes) have not been adopted as domestic law nor are
they followed in our country as well. The Filipinos have the
option of how to take care of their babies as they see fit.
WHA Resolutions may be classified as SOFT LAW nonbinding norms, principles and practices that influence state
behavior. Soft law is not part of intl law.

Main issue:
Yes. Some parts of the RIRR were not in consonance with
the Milk Code such as Sec. 4(f) ->advertising, promotions of
formula are prohibited,
Sec 11 -> prohibitions for advertising breastmilk substitutes
intended for infants and young children uo to 24 months
And Sec 46 -> sanctions for advertising .
These provisions are declared null and void. The DOH and
respondents are prohibited from implementing said
provisions.