Secretary of Justice vs. Lantion, G.R. No.
139465, January 18, 2000
Facts:
Department of Justice (DOJ) received from the Department of Foreign Affairs U.S. a request
for the extradition of private respondent Mark Jimenez to the U.S. for violation of Conspiracy to Commit
Offense, Attempt to Evade Tax, Fraud by Wire, Radio, or Television, False Statement, and Election
Contribution in Name of Another.
During the evaluation process of the extradition, the private respondent, requested the
petitioner, Secretary of Justice, to furnish him copies of the extradition request from the U.S. government,
that he be given ample time to comment regarding the extradition request against him after he shall have
received copies of the requested papers, and to suspend the proceeding in the meantime.
The petitioner, Secretary of Justice denied the request in consistent with Art. 7 of the RP US
Extradition Treaty which provides that the Philippine Government must represent the interests of the U.S.
in any proceedings arising from an extradition request.
The private respondent filed with the RTC against the petitioner Hon. Ralph Lantion (presiding
judge RTC Manila Branch 25) a mandamus, a certiorari, and a prohibition to enjoin the petitioner, the
Secretary of DFA, and NBI from performing any acts directed to the extradition of the respondent, for it
will be a deprivation of his rights to due process of notice and hearing.
Issue:
Whether or not the respondent Mark Jimenez is entitled to the basic rights of due process over
the governments duties under a treaty?
Ruling:
Yes. According to the principle of Pacta Sunt Servanda, parties to a treaty should keep their
agreements to good faith. However, Sec. 2 of Art. 2 of the Constitution (incorporation clause) provides
that the Philippines adopts the generally accepted principles of international law as part of the law of the
land.
Incorporation clause is applied when there is a conflict between the international law and
local/municipal law. However, jurisprudence dictates that municipal law should be upheld by the
municipal court.
The fact that the international law has been made part of the law of the land does not imply the
primacy of international law over national or municipal law in the municipal sphere. Rules of international
law are given an equal standing with, but not superior to, the national legislative enactment. The principle
of Lex Posterior Derogat Priori clarifies that a treaty may repeal a statute and a statute may repeal a
treaty. And the Republic of the Philippines considers its Constitution as the highest law of the land,
therefore, both statutes and treaty may be invalidated if they are conflict with the constitution.
FACTS:
Secretary Of Justice Franklin Drilon, representing the Government of the Republic of the
Philippines, signed in Manila the extradition Treaty Between the Government of the Philippines and the
Government of the U.S.A. The Philippine Senate ratified the said Treaty.
On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S Note
Verbale No. 0522 containing a request for the extradition of private respondent Mark Jiminez to the
United States.
On the same day petitioner designate and authorizing a panel of attorneys to take charge of and
to handle the case. Pending evaluation of the aforestated extradition documents, Mark Jiminez through
counsel, wrote a letter to Justice Secretary requesting copies of the official extradition request from the
U.S Government and that he be given ample time to comment on the request after he shall have received
copies of the requested papers but the petitioner denied the request for the consistency of Article 7 of the
RP-US Extradition Treaty stated in Article 7 that the Philippine Government must present the interests of
the United States in any proceedings arising out of a request for extradition.
Issue:
Whether or not to uphold a citizens basic due process rights or the governments ironclad
duties under a treaty.
Ruling:
Petition dismissed. The human rights of person, whether citizen or alien , and the rights of the
accused guaranteed in our Constitution should take precedence over treaty rights claimed by a contracting
state. The duties of the government to the individual deserve preferential consideration when they collide
with its treaty obligations to the government of another state. This is so although we recognize treaties as a
source of binding obligations under generally accepted principles of international law incorporated in our
Constitution as part of the law of the land.
The doctrine of incorporation is applied whenever municipal tribunals are confronted with
situation in which there appears to be a conflict between a rule of international law and the provision of
the constitution or statute of the local state.
Petitioner (Secretary of Justice) is ordered to furnish Mark Jimenez copies of the extradition
request and its supporting papers, and to grant him (Mark Jimenez) a reasonable period within which to
file his comment with supporting evidence.
Under the Doctrine of Incorporation, rules of international law form part of the law of the land
and no further legislative action is needed to make such rules applicable in the domestic sphere.
The doctrine of incorporation is applied whenever municipal tribunals are confronted with
situations in which there appears to be a conflict between a rule of international law and the provisions of
the constitution or statute of the local state.
Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be
presumed that municipal law was enacted with proper regard for the generally accepted principles of
international law in observance of the incorporation clause in the above cited constitutional provision.
In a situation, however, where the conflict is irreconcilable and a choice has to be made
between a rule of international law and a municipal law, jurisprudence dictates that municipal law should
be upheld by the municipal courts, for the reason that such courts are organs of municipal law and are
accordingly bound by it in all circumstances.
The fact that international law has been made part of the law of the land does not pertain to or
imply the primacy of international law over national or municipal law in the municipal sphere. The
doctrine of incorporation, as applied in most countries, decrees that rules of international law are given
equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex
posterior derogate priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In
states where the Constitution is the highest law of the land, such as the Republic of the Philippines, both
statutes and treaties may be invalidated if they are in conflict with the constitution
 which mandate the pursuit of a trade policy that serves the general welfare and utilizes all forms and
Taada v. Angara, G.R. No. 118295, May 2, 1997 arrangements of exchange on the basis of equality and reciprocity and the promotion of industries which
Facts: are competitive in both domestic and foreign markets, thereby justifying its acceptance of said treaty. So
Petitioners Senators Taada, et al. questioned the constitutionality of the concurrence by the too, the alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by
Philippine Senate of the Presidents ratification of the international Agreement establishing the World the adoption of the generally accepted principles of international law as part of the law of the land and the
Trade Organization (WTO). They argued that the WTO Agreement violates the mandate of the 1987 adherence of the Constitution to the policy of cooperation and amity with all nations.
Constitution to develop a self-reliant and independent national economy effectively controlled by That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent
Filipinos . . . (to) give preference to qualified Filipinos (and to) promote the preferential use of Filipino to the WTO Agreement thereby making it a part of the law of the land is a legitimate exercise of its
labor, domestic materials and locally produced goods. Further, they contended that the national sovereign duty and power. We find no patent and gross arbitrariness or despotism by reason of passion
treatment and parity provisions of the WTO Agreement place nationals and products of member or personal hostility in such exercise. It is not impossible to surmise that this Court, or at least some of its
countries on the same footing as Filipinos and local products, in contravention of the Filipino First members, may even agree with petitioners that it is more advantageous to the national interest to strike
policy of our Constitution, and render meaningless the phrase effectively controlled by Filipinos. down Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of discretion to the
Senate and to nullify its decision. To do so would constitute grave abuse in the exercise of our own
ISSUE: judicial power and duty. Ineludibly, what the Senate did was a valid exercise of its authority. As to whether
Does the 1987 Constitution prohibit our country from participating in worldwide trade such exercise was wise, beneficial or viable is outside the realm of judicial inquiry and review. That is a
liberalization and economic globalization and from integrating into a global economy that is liberalized, matter between the elected policy makers and the people. As to whether the nation should join the
deregulated and privatized? worldwide march toward trade liberalization and economic globalization is a matter that our people should
determine in electing their policy makers. After all, the WTO Agreement allows withdrawal of
Ruling: membership, should this be the political desire of a member.
[The Court DISMISSED the petition. It sustained the concurrence of the Philippine Senate of the
Presidents ratification of the Agreement establishing the WTO.]
NO, the 1987 Constitution DOES NOT prohibit our country from participating in worldwide
trade liberalization and economic globalization and from integrating into a global economy that is
liberalized, deregulated and privatized.
There are enough balancing provisions in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement.
[W]hile the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the
bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair. In other words, the Constitution did not intend to pursue an
isolationist policy. It did not shut out foreign investments, goods and services in the development of the
Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit them either. In fact, it allows an exchange on
the basis of equality and reciprocity, frowning only on foreign competition that is unfair.
[T]he constitutional policy of a self-reliant and independent national economy does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates neither
economic seclusion nor mendicancy in the international community. As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly aware of
overdependence on external assistance for even its most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding mendicancy in the international community. Independence
refers to the freedom from undue foreign control of the national economy, especially in such strategic
industries as in the development of natural resources and public utilities.
The WTO reliance on most favored nation, national treatment, and trade without
discrimination cannot be struck down as unconstitutional as in fact they are rules of equality and
reciprocity that apply to all WTO members. Aside from envisioning a trade policy based on equality and
reciprocity, the fundamental law encourages industries that are competitive in both domestic and foreign
markets, thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in
favor of the gradual development of robust industries that can compete with the best in the foreign
markets. Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to
compete internationally. And given a free trade environment, Filipino entrepreneurs and managers in
Hongkong have demonstrated the Filipino capacity to grow and to prosper against the best offered under a
policy of laissez faire.
It is true, as alleged by petitioners, that broad constitutional principles require the State to
develop an independent national economy effectively controlled by Filipinos; and to protect and/or prefer
Filipino labor, products, domestic materials and locally produced goods. But it is equally true that such
principles while serving as judicial and legislative guides are not in themselves sources of causes of
action. Moreover, there are other equally fundamental constitutional principles relied upon by the Senate
Kuroda vs. Jalandoni, G.R. L-2662, March 26, 1949
Moran, C.J.
Facts:
1. Petitioner Sheginori Kuroda was the former Lt. General of the Japanese Army and commanding general
of the Japanese forces during the occupation (WWII) in the country. He was tried before the Philippine
Military Commission for War Crimes and other atrocities committed against military and civilians. The
military commission was establish under Executive Order 68.
2. Petitioner assails the validity of EO 68 arguing it is unconstitutional and hence the military commission
did not have the jurisdiction to try him on the following grounds:
- that the Philippines is not a signatory to the Hague Convention (War Crimes)
3. Petitioner likewise assails that the US is not a party of interest in the case hence the 2 US prosecutors
cannot practice law in the Philippines.
Issue:
Whether or not EO 68 is constitutional thus the military tribunal jurisdiction is valid
HELD:
1. EO 68 is constitutional hence the tribunal has jurisdiction to try Kuroda. EO 68 was enacted by the
President and was in accordance with Sec. 3, Art. 2 of Constitution which renounces war as an instrument
of national policy. Hence it is in accordance with generally accepted principles of international law
including the Hague Convention and Geneva Convention, and other international jurisprudence
established by the UN, including the principle that all persons (military or civilian) guilty of plan,
preparing, waging a war of aggression and other offenses in violation of laws and customs of war. The
Philippines may not be a signatory to the 2 conventions at that time but the rules and regulations of both
are wholly based on the generally accepted principles of international law. They were accepted even by
the 2 belligerent nations (US and Japan)
2. As to the participation of the 2 US prosecutors in the case, the US is a party of interest because its
country and people have greatly aggrieved by the crimes which petitioner was being charged of.
3. Moreover, the Phil. Military Commission is a special military tribunal and rules as to parties and
representation are not governed by the rules of court but the provision of this special law.
Ichong vs. Hernandez, 101 Phil 155
Facts:
The Congress of the Philippines enacted the act which nationalizes the retail trade business,
Republic Act No. 1180 entitled An Act to Regulate the Retail Business, prohibiting aliens in general to
engage in retail trade in our country.
Petitioner, for and in his own behalf and on behalf of other alien residents, corporations and
partnerships adversely affected by the provisions of RA No. 1180, brought this action to obtain a judicial
declaration that said Act is unconstitutional.
Issue:
Whether Congress in enacting R.A. No. 1180 violated the UN Charter, the UN Declaration of
Human Rights and the Philippine-Chinese Treaty of Amity.
Held:
The UN Charter imposes no strict or legal obligations regarding the rights and freedom of their
subjects, and the Declaration of Human Rights contains nothing more than a mere recommendation, or a
common standard of achievement for all peoples and all nations.
The Treaty of Amity between the Republic of the Philippines and the Republic of China
guarantees equality of treatment to the Chinese nationals upon the same terms as the nationals of any
other country. But the nationals of China are not discriminated against because nationals of all other
countries, except those of the United States, who are granted special rights by the Constitution, are all
prohibited from engaging in the retail trade.
But even supposing that the law infringes upon the said treaty, the treaty is always subject to
qualification or amendment by a subsequent law, and the same may never curtail or restrict the scope of
the police power of the State.
Mijares v. Ranada, GR No. 139325, April 12, 2005
Facts:
Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom suffered human rights
violations during the Marcos era, obtained a Final Judgment in their favor against the Estate of the late
Ferdinand Marcos amounting to roughly 1.9 Billion U.S. Dollars in compensatory and exemplary
damages for tortuous violations of international law in the US District Court of Hawaii. This Final
Judgment was affirmed by the US Court of Appeals.
As a consequence, Petitioners filed a Complaint with the Regional Trial Court of Makati for
the enforcement of the Final Judgment, paying Php 410.00 as docket and filing fees based on Rule 141,
Section 7(b) where the value of the subject matter is incapable of pecuniary estimation. The Estate of
Marcos however, filed a MTD alleging the non-payment of the correct filing fees. The Regional Trial
Court of Makati dismissed the Complaint stating that the subject matter was capable of pecuniary
estimation as it involved a judgment rendered by a foreign court ordering the payment of a definite sum of
money allowing for the easy determination of the value of the foreign judgment. As such, the proper filing
fee was 472 Million Philippine pesos, which Petitioners had not paid.
Issue:
Whether or not the amount paid by the Petitioners is the proper filing fee?
Ruling:
Yes, but on a different basisamount merely corresponds to the same amount required for
other actions not involving property. The Regional Trial Court of Makati erred in concluding that the
filing fee should be computed on the basis of the total sum claimed or the stated value of the property in
litigation. The Petitioners Complaint was lodged against the Estate of Marcos but it is clearly based on a
judgment, the Final Judgment of the US District Court. However, the Petitioners erred in stating that the
Final Judgment is incapable of pecuniary estimation because it is so capable. On this point, Petitioners
state that this might lead to an instance wherein a first level court (MTC, MeTC, etc.) would have
jurisdiction to enforce a foreign judgment. Under Batasang Pambansa 129, such courts are not vested with
such jurisdiction. Section 33 of Batasang Pambansa 129 refers to instances wherein the cause of action or
subject matter pertains to an assertion of rights over property or a sum of money. But here, the subject
matter is the foreign judgment itself. Section 16 of Batasang Pambansa 129 reveals that the complaint for
enforcement of judgment even if capable of pecuniary estimation would fall under the jurisdiction of the
Regional Trial Courts. Thus, the Complaint to enforce the US District Court judgment is one capable of
pecuniary estimations but at the same time, it is also an action based on judgment against an estate, thus
placing it beyond the ambit of Section 7(a) of Rule 141. What governs the proper computation of the filing
fees over Complaints for the enforcement of foreign judgments is Section7(b)(3), involving other actions
not involving property.

ARTICLE II
International law; how it becomes part of domestic law.
Q How may international law become a part of domestic law? Explain.
ANS: Under the 1987 Constitution, international law can become part of the sphere of domestic law
either by transformation or incorporation. The transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration, international law is deemed to
have the force of domestic law.
Treaties become part of the law of the land through transformation pursuant to Article VII, Section
21 of the Constitution which provides that no treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the members of the Senate. Thus, treaties or
conventional international law must go through a process prescribed by the Constitution for it to be
transformed into municipal law that can be applied to domestic conflicts. (Pharmaceutical & Health Care
Assn. of the Phil. v. Health Secretary Duque, et al., G.R. No. 173034, October 19, 2007).
Q May generally accepted principles of international law form part of the law of the land even if they
do not derive from treaty obligations? Explain.
ANS: Yes. 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. The
classical formulation in international law sees those customary rules accepted as binding result from the
combination of 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. (Mijares v. Ranada, G.R. No. 139325, April 12, 2005, 455 SCRA 397).
behavior is obligatory, is what makes practice an international rule. Without it, practice is not law.
(Pharmaceutical & Health Care Assn. of the Phil. v. Health Secretary Duque, et al., G. R. No. 173034,
October 9, 2007).
Q What is a soft law? Is it an international law? Explain.
ANS: Soft law is an expression of non-binding norms, principles and practices that influence state
behavior. (David Fidler, Development Involving SARS, International Law & Infections Disease Control at
the Fifty-Six Meeting of the World Health Assembly, June 2003, ASIL; Pharmaceutical & Health Care
Assn. of the Phils. v. Health Secretary Duque, et al., G.R. No. 173034, October 9, 2007). It does not fall
under the international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court
of Justice.
Q Give examples of soft law.
ANS: Certain declarations and resolutions of the UN General Assembly fall under this category. (Louis
Henkins, et al., International Law, Cases and Materials, 2 nd Ed.). The UN Declaration of Human Rights is
an example. This was applied in Government of Hongkong Special Administrative Region v. Olalia;
Mejoff v. Director of Prisons; 90 Phil. 70 (1951); Mijares v. Ranada; Shangri-la International Hotel
Management Ltd. v. Developers Group of Companies Inc., G.R. No. 159938, March 31, 2006, 486 SCRA
405).
It is resorted to in order to reflect and respond to the changing needs and demands of constituents
of certain international organizations like the WHO.

Q State the concept of the term generally accepted principles of international law and give
examples.
ANS: Generally accepted principles of international law refers to norms of general or customary
international law which are binding on all states, i.e., renunciation of war as an instrument of national
policy, the principle of sovereign immunity, a persons right to life, liberty and due process, and pacta sunt
servanda, among others. The concept of generally accepted principles of law has also been depicted in
this wise:
Some legal scholars and judges upon certain general principles of law as a primary source of
international law because they have the character of jus rationale and are valid through all kinds of
human societies. (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966,
I.C.J. 296). OConell holds that certain principles are part of international law because they are basic to
legal systems generally and hence part of the jus gentium. These principles, he believes, are established
by a process of reasoning based on the common identity of all legal systems. If there should be doubt or
disagreement, one must look to state practice and determine whether the municipal law principle provides
a just and acceptable solution. (Pharmaceutical & Health Care Assn. of the Phil. v. Sec. of Health Duque,
et al., G.R. No. 173034, October 9, 2007).

Q What is customary international law? Explain.

ANS: Custom or customary international law means a general and consistent practice of states followed
by them from a sense of legal obligation (opinion juris). This statement contains the two basic elements
of custom: the material factor, that is, how states behave, and the psychological or subjective factor, that
is, why they behave the way they do.
The initial factor for determining the existence of custom is the actual behavior of states. This
includes several elements: duration, consistency, and generality of the practice of states.
The required duration can be either short or long.
Duration therefore is not the most important element. More important is the consistency and the
generality of the practice.
Once the existence of state practice has been established it becomes necessary to determine why
states behave the way they do. Do states behave the way they do because they consider it obligatory to
behave thus or do they do it only as a matter of courtesy? Opinio juris or the belief that a certain form of
EN BANC
August 15, 1961
IN RE: PETITION OF ARTURO EFREN GARCIA for admission to the Philippine Bar without
taking the examination. ARTURO EFREN GARCIA, petitioner.
RES OLUTIO N
BARRERA, J.:
Arturo E. Garcia has applied for admission to the practice of law in the Philippines without submitting to
the required bar examinations. In his verified petition, he avers, among others, that he is a Filipino citizen
born in Bacolor City, Province of Negros Occidental, of Filipino parentage; that he had taken and finished
in Spain, the course of "Bachillerato Superior"; that he was approved, selected and qualified by the
"Instituto de Cervantes" for admission to the Central University of Madrid where he studied and finished
the law course graduating there as "Licenciado En Derecho"; that thereafter he was allowed to practice the
law profession in Spain; and that under the provision of the Treaty of Academic Degrees and the Exercise
of Professions between the Republic of the Philippines and the Spanish state, he is entitled to practice the
law profession in the Philippines without submitting to the required bar examinations.
After due consideration, the Court resolved to deny the petition on the following grounds:
(1) the provisions of the Treaty on Academic Degrees and the Exercise of Professions between the
Republic of the Philippines and the Spanish State can not be invoked by applicant. Under Article 11
thereof;
The Nationals of each of the two countries who shall have obtained recognition of the validity of their
academic degrees by virtue of the stipulations of this Treaty, can practice their professions within the
territory of the Other, . . .. (Emphasis supplied).
from which it could clearly be discerned that said Treaty was intended to govern Filipino citizens desiring
to practice their profession in Spain, and the citizens of Spain desiring to practice their professions in the
Philippines. Applicant is a Filipino citizen desiring to practice the legal profession in the Philippines. He is
therefore subject to the laws of his own country and is not entitled to the privileges extended to Spanish
nationals desiring to practice in the Philippines.
(2) Article I of the Treaty, in its pertinent part, provides .
The nationals of both countries who shall have obtained degree or diplomas to practice the liberal
professions in either of the Contracting States, issued by competent national authorities, shall be deemed
competent to exercise said professions in the territory of the Other, subject to the laws and regulations of
the latter. . . ..
It is clear, therefore, that the privileges provided in the Treaty invoked by the applicant are made expressly
subject to the laws and regulations of the contracting State in whose territory it is desired to exercise the
legal profession; and Section 1 of Rule 127, in connection with Sections 2,9, and 16 thereof, which have
the force of law, require that before anyone can practice the legal profession in the Philippine he must first
successfully pass the required bar examinations; and
(3) The aforementioned Treaty, concluded between the Republic of the Philippines and the Spanish State
could not have been intended to modify the laws and regulations governing admission to the practice of
law in the Philippines, for the reason that the Executive Department may not encroach upon the
constitutional prerogative of the Supreme Court to promulgate rules for admission to the practice of law in
the Philippines, the lower to repeal, alter or supplement such rules being reserved only to the Congress of
the Philippines. (See Sec. 13, Art VIII, Phil. Constitution).
Missouri v. Holland
Citation. 252 U.S. 416, 1920)
Brief Fact Summary. Missouri wanted to prevent US game warden Holland from enforcing Migratory
Bird Treaty Act of 1918 (the Treaty). It claimed the Treaty infringed on Missouris 10th Amendment right
against federal intrusion and that Missouri has a pecuniary interest as owners of the birds within its
borders. The District Court dismissed the suit and the state appealed.
Synopsis of Rule of Law. Treaties take precedence over any conflicting state law (regardless of whether
the treaty came before or after the enactment of the state law). A federal law can trump an earlier rule in
treaty if it is clear that it is meant to do so, or the provisions cannot be fairly reconciled. If the treaty
comes later it can trump federal law even if federal law is inconsistent. The last will of the sovereign
controls.
Facts. In 1916, the US and Great Britain signed a treaty protecting migratory birds that were important as
a source of food and in controlling harmful insects. The birds traveled through Canada and parts of the US
but were in danger of extermination. The Migratory Bird Act was passed to carry out the terms of the
treaty. Missouri objected because an earlier act of Congress that attempted, by itself and not in pursuance
of a treaty, to regulate killing migratory birds within the states was held unconstitutional in district court.
Missouri argued that because Congress had no power to pass this law without the treaty, they should gain
power because they are enforcing a treaty.
Issue. Can Congress pass legislation to enforce a treaty which it could not pass without the treaty?
Held. Justice Holmes opinion: Yes. District Court judgment affirmed. The states claim of sovereign
power over possessions is not stronger than the authority a treaty is granted under the Constitution. The
birds are not in the possession of anyone and possession is the beginning of ownership. Under Article 6,
treaties, the Constitution, and laws of the US made in pursuance thereof are the supreme laws of the land.
If the treaty is valid then there is no dispute about the validity of the statute that is to execute the treaty.
The national interest is keeping migratory birds is high because they are a food supply and also protect
forests and corps. The birds are only transitory within Missouri and have no permanent habitat there.
Discussion. What if the US made a treaty with Spain that said it is a crime punishable to publish criticisms
of either government? Missouri let Congress bypass the 10th Amendment. Would such a situation allow
Congress to bypass the 1st as well? Holmes might say that freedom of speech is specific in the
Constitution. Migratory birds do not appear anywhere in the Constitution. Protecting birds would be in the
publics interest whereas restricting freedom of speech would be contrary to that interest.

Asakura v. City of Seattle, 265 U.S. 332 (1924)
Mr. Justice BUTLER delivered the opinion of the Court.
Plaintiff in error is a subject of the Emperor of Japan, and, since 1904, has resided in Seattle,
Washington. Since July, 1915, he has been engaged in business there as a pawnbroker. The
city passed an ordinance, which took effect July 2, 1921, regulating the business of
pawnbroker and repealing former ordinances on the same subject. It makes it unlawful for any
person to engage in the business unless he shall have a license, and the ordinance provides
"that no such license shall be granted unless the applicant be a citizen of the United States."
Violations of the ordinance are punishable by fine or imprisonment or both. Plaintiff in error
brought this suit in the Superior Court of King County, Washington, against the city, its
Comptroller and its Chief of Police to restrain them from enforcing the ordinance against him.
He attacked the ordinance on the ground that it violates the treaty between the United States
and the Empire of Japan, proclaimed April 5, 1911 (37 Stat. 1504); violates the constitution of
the State of Washington, and also the due process and equal protection clauses of the
Fourteenth Amendment of the Constitution of the United States.He declared his willingness to
comply with any valid ordinance relating to the business of pawnbroker. It was shown that he
had about $5,000 invested in his business, which would be broken up and destroyed by the
enforcement of the ordinance. The Superior Court granted the relief prayed. On appeal, the
Supreme Court of the State held the ordinance valid and reversed the decree. The case is here
on writ of error under 237 of the Judicial Code (Comp. St. 1214).
Does the ordinance violate the treaty? Plaintiff in error invokes and relies upon the following
provisions: "The citizens or subjects of each of the High Contracting Parties shall have liberty
to enter, travel and reside in the territories of the other to carry on trade, wholesale and retail,
to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of
their choice, to lease land for residential and commercial purposes, and generally to do
anything incident to or necessary for trade upon the same terms as native citizens or subjects,
submitting themselves to the laws and regulations there established. . . . The citizens or
subjects of each . . . shall receive, in the territories of the other, the most constant protection
and security for their persons and property, . . . ."
A treaty made under the authority of the United States "shall be the supreme law of the land;
and the judges in every State shall be bound thereby, any thing in the constitution or laws of
any State to the contrary notwithstanding." Constitution, Art. VI, 2.
The treaty-making power of the United States is not limited by any express provision of the
Constitution, and, though it does not extend "so far as to authorize what the Constitution
forbids," it does extend to all proper subjects of negotiation between our government and other
nations. Geofroy v. Riggs, 133 U.S. 258, 266, 267; In re Ross, 140 U.S. 453, 463; Missouri v.
Holland, 252 U.S. 416. The treaty was made to strengthen friendly relations between the two
nations. As to the things covered by it, the provision quoted establishes the rule of equality
between Japanese subjects while in this country and native citizens. Treaties for the protection
of citizens of one country residing in the territory of another are numerous,[120 U.S. 678, 682-
683. The rule of equality established by it cannot be rendered nugatory in any part of the
United States by municipal ordinances or state laws. It stands on the same footing of
supremacy as do the provisions of the Constitution and laws of the United States. It operates
of itself without the aid of any legislation, state or national; and it will be applied and given
authoritative effect by the courts. Foster v. Neilson, 2 Pet. 253, 314; Head Money Cases, 112
U.S. 580, 598; Chew Heong v. United States, 112 U.S. 536, 540; Whitney v. Robertson, 124
U.S. 190, 194; Maiorano v. Baltimore & Ohio R.R. Co., 213 U.S. 268, 272.
The purpose of the ordinance complained of is to regulate, not to prohibit, the business of
pawnbroker. But it makes it impossible for aliens to carry on the business. It need not be
considered whether the State, if it sees fit, may forbid and destroy the business generally. Such
a law would apply equally to aliens and citizens, and no question of conflict with the treaty
would arise. The grievance here alleged is that plaintiff in error, in violation of the treaty, is
denied equal opportunity.
It remains to be considered whether the business of pawnbroker is "trade" within the meaning
of the treaty. Treaties are to be construed in a broad and liberal spirit, and, when two
constructions are possible, one restrictive of rights that may be claimed under it and the other
favorable to them, the latter is to be preferred. Hauenstein v. Lynham, 100 U.S. 483, 487;
Geofroy v. Riggs, supra, 271; Tucker v. Alexandroff, 183 U.S. 424, 437. The ordinance defines
"pawnbroker" to "mean and include every person whose business or occupation [it] is to take
and receive by way of pledge, pawn or exchange, goods, wares or merchandise, or any kind of
personal property whatever, for the repayment or security of any money loaned thereon, or to
loan money on deposit of personal property"; and defines "pawnshop" to "mean and include
every place at which the business of pawnbroker is carried on." The language of the treaty is
comprehensive. The phrase "to carry on trade" is broad. That it is not to be given a restricted
meaning is plain. The clauses "to own or lease . . . shops, . . . to lease land for . . . commercial
purposes, and generally to do anything incident to or necessary for trade," and "shall receive . .
. the most constant protection and security for their . . . property . . ." all go to show the
intention of the parties that the citizens or subjects to either shall have liberty in the territory of
the other to engage in all kinds and classes of business that are or reasonably may be embraced
within the meaning of the word "trade" as used in the treaty.
By definition contained in the ordinance, pawnbrokers are regarded as carrying on a
"business." A feature of it is the lending of money upon the pledge or pawn of personal
property which, in case of default, may be sold to pay the debt. While the amounts of the loans
made in that business are relatively small and the character of property pledged as security is
different, the transactions are similar to loans made by banks on collateral security. The
business of lending money on portable securities has been carried on for centuries. In most of
the countries of Europe, the pledge system is carried on by governmental agencies; in some of
them the business is also carried on by private parties. In England, as in the United States, the
private pledge system prevails. In this country, the practice of pledging personal property for
loans dates back to early colonial times, and pawnshops have been regulated by state laws for
more than a century. We have found no state legislation abolishing or forbidding the business.
Most, if not all, of the States provide for licensing pawnbrokers and authorize regulation by
municipalities. While regulation has been found necessary in the public interest, the business
is not on that account to be excluded from the trade and commerce referred to in the treaty.
Many worthy occupations and lines of legitimate business are regulated by state and federal
laws for the protection of the public against fraudulent and dishonest practices. There is
nothing in the character of the business of pawnbroker which requires it to be excluded from
the field covered by the above quoted provision, and it must be held that such business is
"trade" within the meaning of the treaty. The ordinance violates the treaty. The question in the
present case relates solely to Japanese subjects who have been admitted to this country. We do
not pass upon the right of admission or the construction of the treaty in this respect, as that
question is not before us and would require consideration of other matters with which it is not
now necessary to deal. We need not consider other grounds upon which the ordinance is
attacked.
Decrease reversed.

Mortensen v. Peters, 14 Scots LTR 227, 1906
As a rule of statutory construction, the legislature is presumed to make law in a manner consistent with
customary international law. However, in accordance with the principle of parliamentary sovereignty,
the clear language of a statute must be given effect even although the statute may operate in a manner
inconsistent with customary international law.
Background
The defendant (appellant), Emmanuel Mortensen, a Danish citizen, was the master of the Norwegian
steam trawler Niobe. In the sheriff court at Dornoch, Scotland, the defendant was convicted under the
Herring Fishery (Scotland) Act 1889 (UK) of the offence of otter trawling in a prohibited part of the
Moray Firth (an inlet of the North Sea on the north east coast of Scotland) at a place more than three miles
seaward from the low water mark.
On appeal, the question of law was whether the defendant was subject to the jurisdiction of the sheriff
court on account of the fact that the offence was committed on the high seas according to customary
international law.
Disposition
As a matter of statutory construction, the offence committed by the defendant was at a place to which the
Herring Fishery (Scotland) Act 1889 (UK) applied. Accordingly, the defendant was subject to the
jurisdiction of the sheriff court and had properly been convicted. In the present case, the presumption that
the legislature intended to make law in a manner consistent
with customary international law had to give way to the clear language of the statute.
Judgment extract
Lord Dunedin (Lord Justice-General). I apprehend that the question is one of construction and of
construction only. In this court we have nothing to do with the question of whether the legislature has, or
has not done, what foreign powers may consider usurpation in a question with them. For us an act of
parliament duly passed by lords and commons and assented to by the king, is supreme, and we are bound
to give effect to its terms.
LORD KYLLACHY. [I]t may probably be conceded that there is always a certain presumption against
the legislature of a country asserting or assuming the existence of a territorial jurisdiction going clearly
beyond limits established by the common consent of nations - that is to say, by international law. I
think that is acknowledged. But then it is only a presumption; and, as such, it must always give way to the
language used if it is clear .
Now it must, I think, be conceded that the language of the enactment here in question is fairly express -
express, that is to say, to the effect of making an unlimited and unqualified prohibition, applying to the
whole area [of the Moray Firth] specified, and affecting everybody - whether British subjects or
foreigners.
Appeal dismissed
Aftermath
In a note to the above case, Harris, Cases and Materials on International Law, 7th edn, 2010 observed (at p
75):
Shortly after Mortensen v. Peters, a number of other successful prosecutions of Norwegian masters of
foreign ships occurred. In some cases the convicted men went to prison rather than pay a fine. They were
released, however, after protests by Norway. In March 1907, a Foreign Office spokesman stated in the
House of Commons: The Act of parliament as interpreted by the High Court of Justiciary is in conflict
with international law. (Hansard, HC, Vol 170, col 472 (March 4, 1907))
Polites v. The Commonwealth (1945) 70 CLR 60
The reasoning of the High Court of Justiciary, Scotland in Mortensen v. Peters (above) was followed by
the High Court of Australia in Polites v. The Commonwealth.
Polites concerned the construction of the National Security Act 1939 (Com) and the National Security
(Aliens Service) Regulations made under that Act. By way of background, in 1940, immediately after the
fall of France to invading German forces and in circumstances of national emergency in Australia, the
Commonwealth parliament amended the National Security Act 1939 (Com) to authorise the making of
regulations calling-up aliens resident in Australia for service in the Australian armed forces. Mr Speros
Polites, a Greek national aged 29 resident in Australia, challenged the validity of the Regulations. Mr
Polites contended that the Regulations should not be construed in a manner inconsistent with the rule of
customary international law that, during armed conflict, a state may not require resident aliens to serve in
its armed forces. Although the High Court of Australia acknowledged the existence of this rule of
customary international law, the Court held that parliament, in amending the National Security Act 1939
(Com), clearly had intended resident aliens liable to be called-up for service in the Australian armed forces
and that the Regulations prevailed over customary international law even although this carried the risk of
international complications (Latham CJ at p 69) including the obvious risk of the Commonwealth
having no ground of objection if Australians who happen to be in foreign countries are conscripted for
military service there. (Latham CJ at p 73)
In reaching this conclusion, the High Court of Australia accepted as well established by many
authorities (Latham CJ at p 68), that there is a general rule of construction that, unless the contrary
intention is clear, it is presumed parliament did not intend to violate customary international law. Dixon J
(at p 77) stated this general rule as follows:
It is a rule of construction that, unless a contrary intention appear, general words occurring in a statute are
to be read subject to the established rules of international law and not as intended to apply to persons or
subjects which, according to those rules, a national law of the kind in question ought not to include.
However, as Latham CJ observed (at p 69): [A]ll the authorities in English law also recognize that courts
are bound by the statute law of their country, even if that law should violate a rule of international law .
It must be held that legislation otherwise within the power of the Commonwealth Parliament does not
become invalid because it conflicts with a rule of international law, though every effort should be made to
construe Commonwealth statutes so as to avoid breaches of international law and of international comity.
The bottom line in Polites: the National Security (Aliens Service) Regulations were valid and Mr Polites
was liable to be called-up for service in the Australian armed forces.
Facts:
The Danish master of a Norwegian steam-trawler was prosecuted for using a particular method of
fishing in the Moray Firth. He argued that, although the statute banning the method would have caught a
British fisherman, it should be construed as impliedly excepting all foreigners fishing from foreign vessels
outside the territorial jurisdiction of the British Crown.
Held:
The defence failed. Lord Salvesen said that it could scarcely be supposed that the British Parliament
should pass legislation placing British fishermen under a disability which did not extend to foreigners: I
think, it was a just observation of the Solicitor General that, if legislation of this nature had been proposed,
and the words inserted which the Dean of Faculty maintained were implied, it would never have been
submitted by a responsible minister or have received the approval of Parliament.

West Rand Central Gold Mining Co Ltd v. R
2 Kings Bench 391, 1905
In principle, customary international law will be applied in the administration of municipal law.
However, a rule of customary international law requires the common consent of civilized nations. In
this regard, the mere opinions of jurists, however eminent or learned, are not in themselves sufficient.
Background
West Rand Central Gold Mining Co Ltd (the company) was an English company which owned and
operated a goldmine in the Transvaal, part of the South African Republic (the Republic). In October
1899, quantities of gold owned by the company were seized by the government of the Republic for safe
keeping. Later in the same month, a state of war was declared between Great Britain and the Republic
which culminated in the conquest and annexation of the Republic by Great Britain in September 1900.
In the present proceedings, the company sought to establish that the British government was liable to
return to the company the gold seized by the Republic (an entity which had ceased to exist) or its value
(3,804).
Disposition
Under customary international law, Great Britain, as the state which had conquered and annexed the
Republic, had not, in the absence of express stipulation, succeeded to the obligation owed by the Republic
to the company to return the seized gold or its value. In other words, under principles of state succession
forming part of customary international law, a conquering state does not become liable to discharge the
financial obligations of the conquered state unless the conquering state has agreed expressly to do so.
Accordingly, in the present case, the companys claim against the British government by petition of right
failed.
Judgment extract
In reaching this conclusion, LORD ALVERSTONE CJ (with whom Wills and Kennedy JJ agreed) made
the following observations on the relationship between public international law and municipal law:
[406]Thepropositionthat international law forms part of the law of England, requires a word of
explanation and comment. It is quite true that whatever has received the common consent of civilized
nations must have received the assent of our country, and that to [407] which we have assented along with
other nations in general may properly be called international law, and as such will be acknowledged and
applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions
to which doctrines of international law may be relevant. But any doctrine so invoked must be one really
accepted as binding between nations, and the international law sought to be applied must, like anything
else, be proved by satisfactory evidence, which must show either that the particular proposition put
forward has been recognised and acted upon by our own country, or that it is of such a nature, and has
been so widely and generally accepted, that it can hardly be supposed that any civilized State would
repudiate it. The mere opinions of jurists, however eminent or learned, that it ought to be so recognised,
are not in themselves sufficient. They must have received the express sanction of international agreement,
or gradually have grown to be part of international law by their frequent practical recognition in dealings
between various nations.
Judgment for the Crown
The Scotia Case (USA vs. UK, 1871)
Principle: Some customs need not to be ancient to become an International law rather if it is specified and
accepted and also maintained by numbers of nations for the just, it may turn into a customary international
law.
Brief fact: A dispute arose between the United States ship Berkshire and the British steamer Scotia. The
Berkshire was struck by the Scotia because of the Berkshires failure to display coloured lights according
to customary law of the sea
Issue: Was Berkshire in violation of customary International Law in failing to display colored lights?
Decision: It was held that, when we find such rules of navigations in British law as well as 30 other
national laws of commercial states including those shipping in Atlantic Ocean, we are required to regard
them as laws of the sea which were in effect during this collision
Reasoning: This is not giving laws of any nations authority outside of their national sovereignty. It is not
treating them as general maritime laws, but it is recognition of the historical fact that by common consent
of mankind, these rules have been given as a general obligation.
The Over The Top, (D.CONN. 1925)
Key passages from this case (2)
I. If, however, the court has no option to refuse the enforcement of legislation in contravention
of principles of international law, it does not follow that in construing the terms and provisions
of a statute it may not assume that such principles were on the national conscience and that the
congressional act did not deliberately intend to infringe them. In other words, unless it
unmistakably appears that a congressional act was intended to be in disregard of a principle of
international comity, the presumption is that it was intended to be in conformity with it. It is
with such a principle in mind that we now proceed to an examination of the legislation upon
which the government relies. Quoted 2 times
II. The master of any vessel from a foreign port or place who allows any merchandise
(including sea stores) to be unladen from such vessel at any time after its arrival within four
leagues of the coast of the United States and before such vessel has come to the proper place
for the discharge of such merchandise, and before he has received a permit to unlade, shall be
liable to a penalty equal to twice the value of the merchandise but not less than $1,000, and
such vessel and the merchandise shall be subject to seizure and forfeiture: Provided, that
whenever any part of the cargo or stores of a vessel has been unladen or transshipped because
of accident, stress of weather, or other necessity, the master of such vessel shall, as soon as
possible thereafter, notify the collector of the district within which such unlading or
transshipment has occurred, or the collector within the district at which such vessel shall first
arrive thereafter, and shall furnish proof that such unlading or transshipment was made
necessary by accident, stress of weather, or other unavoidable cause, and if the collector is
satisfied that the unlading or transshipment was in fact due to accident, stress of weather, or
other necessity the penalties above described shall not be incurred." Quoted 1 time
Three libels by the United States, one against the schooner Over the Top, and two against its cargo, with
application by A.L. Schroeder, owner of the cargo, against Harvey Bissell, Collector, for return of cargo.
Libels dismissed.
THOMAS, District Judge.
On November 7, 1924, Schroeder, the owner of the cargo, brought an application against the collector of
customs for the Port of Connecticut to show cause why the cargo of liquor should not be returned to him.
This application was returnable November 11, 1924. This proceeding was entered on the docket and is
known as equity No. 1746. Following this rule to show cause and on November 12, 1924, the United
States filed a libel of forfeiture against the schooner itself, and this proceeding is entered on the docket as
No. 2797, in admiralty. On the same day, the government filed two libels against the cargo, and those
cases are entered on the docket and known as No. 2796 and No. 2798, in admiralty. The trial on the issues
raised by the libels and respective answers was had on January 16, 1925, and as these cases were tried
together, they will all be discussed and decided in one opinion.
From the evidence I find the following facts established: On August 27, 1924, the schooner Over the Top,
carrying a cargo of whisky and operating under the British flag and under British registry, cleared for
Cuba from St. Johns, New Brunswick. It arrived at a point off the coast of Block Island several weeks
prior to October 19, 1924. The schooner was chartered by one A.L. Schroeder, the owner of the cargo,
who operates in Montreal but whose residence or citizenship is undisclosed.
On the 19th of October, 1924, at about 10 o'clock in the evening, the supercargo on board the schooner
sold 25 cases of whisky for $550 to a special agent of the Internal Revenue Department. The sale was
made in the presence of the captain, and thereupon the crew of the vessel, in the presence and under the
direction of the captain, unloaded these cases of whisky and transferred the same to a sea sled employed in
the government service. Both captain and supercargo knew that the whisky so transferred was to be
transported to a point on the adjacent coast, but neither one of them knew that the sea sled or the men on it
were in the government service. The transaction occurred at a point approximately 19 miles distant from
the shore, or 115 degrees true from the southeast light of Block Island, and within one hour's running
distance as computed by the possible speed of the sea sled when running empty and in the daytime. The
sea sled thereupon proceeded to the United States coast guard cutter Tampa, and 23 of the cases were
unloaded on board the Tampa, and the other two cases were landed at New London.
On the following day, Over the Top was seized by officers of the United States coast guard, and the
captain and crew were placed under arrest, and the ship and her cargo were towed into the Port of New
London and turned over to the collector of customs and are now in his custody.
I further find that the schooner had been hovering for some time off the coast of the United States at the
point where she was seized, and that those in command were engaged during that period in selling liquor
and delivering the same to boats proceeding from the coast of the United States and returning thereto. The
testimony seems to support the conclusion that business was slow.
Upon these facts, the United States demands judgment decreeing the forfeiture and sale of the ship and
cargo. The owner of the ship and the owner of the cargo have appeared separately, but the trial of the three
actions was consolidated, and, as will be seen in the sequel, the principles of law governing are applicable
alike to both the schooner and cargo.
The government bases its claim of forfeiture upon the alleged violation of sections 447, 448, 450, 453,
585, 586, 593, and 594 of the Tariff Act of 1922 (Comp. St. Ann. Supp. 1923, 5841e16, 5841e17,
5841e19, 5841e22, 5841h4, 5841h5, 5841h12-5841h14), as well as upon the provisions of the American-
British Treaty which became effective May 22, 1924. The above sections of the Tariff Act provide as
follows:
"Sec. 447. Unlading Place. It shall be unlawful to make entry of any vessel or to unlade the cargo or
any part thereof of any vessel elsewhere than at a port of entry: Provided, that upon good cause therefor
being shown, the Secretary of Commerce may permit entry of any vessel to be made at a place other than
a port of entry designated by him, under such conditions as he shall prescribe: And provided further, that
any vessel laden with merchandise in bulk may proceed after entry of such vessel to any place designated
by the Secretary of the Treasury for the purpose of unlading such cargo, under the supervision of customs
officers if the collector shall consider the same necessary, and in such case the compensation and expenses
of such officers shall be reimbursed to the government by the party in interest.
"Sec. 448. Same Preliminary Entry Permit. Except as provided in section 441 of this act, no discretion of the court.
merchandise, passengers, or baggage shall be unladen from any vessel or vehicle arriving from a foreign
port or place until entry of such vessel or report of the arrival of such vehicle has been made and a permit
for the unlading of the same issued by the collector: Provided, that the master may make a preliminary
entry of a vessel by making oath or affirmation to the truth of the statements contained in the vessel's
manifest and delivering the manifest to the customs officer who boards such vessel, but the making of
such preliminary entry shall not excuse the master from making formal entry of his vessel at the custom
house, as provided by this act. After the entry, preliminary or otherwise, of any vessel or report of the
arrival of any vehicle, the collector may issue a permit to the master of the vessel, or to the person in
charge of the vehicle, to unlade merchandise or baggage, but merchandise or baggage so unladen shall be
retained at the place of unlading until entry therefor is made and a permit for its delivery granted, and the
owners of the vessel or vehicle from which any imported merchandise is unladen prior to entry of such
merchandise shall be liable for the payment of the duties accruing on any part thereof that may be
removed from the place of unlading without a permit therefor having been issued. Any merchandise or
baggage so unladen from any vessel or vehicle for which entry is not made within forty-eight hours
exclusive of Sunday and holidays from the time of the entry of the vessel or report of the vehicle, unless a
longer time is granted by the collector, as provided in section 484, shall be sent to the public stores and
held as unclaimed at the risk and expense of the consignee in the case of merchandise and of the owner in
the case of baggage, until entry thereof is made."
"Sec. 450. Same Sundays and Holidays. No merchandise, baggage, or passengers arriving in the
United States from any foreign port or place, and no bonded merchandise or baggage being transported
from one port to another, shall be unladen from the carrying vessel or vehicle on Sunday, a holiday, or at
night, except under special license granted by the collector under such regulations as the Secretary of the
Treasury may prescribe."
"Sec. 453. Penalty for Violation. If any merchandise or baggage is laden on, or unladen from, any
vessel, or vehicle without a special license or permit therefor issued by the collector, the master of such
vessel or the person in charge of such vehicle and every other person who knowingly is concerned, or who
aids therein, or in removing or otherwise securing such merchandise or baggage, shall each be liable to a
penalty equal to the value of the merchandise or baggage so laden or unladen, and such merchandise or
baggage shall be subject to forfeiture, and if the value thereof is $500 or more, the vessel or vehicle on or
from which the same shall be laden or unladen shall be subject to forfeiture."
"Sec. 585. Departure Before Report or Entry. If any vessel or vehicle from a foreign port or place
arrives within the limits of any collection district and departs or attempts to depart, except from stress of
weather or other necessity, without making a report or entry under the Provisions of this Act, or if any
merchandise is unladen therefrom before such report or entry, the master of such vessel shall be liable to a
penalty of $5,000, and the person in charge of such vehicle shall be liable to a penalty of $500, and any
such vessel or vehicle shall be subject to forfeiture, and any customs or coast guard officer may cause such
vessel or vehicle to be arrested and brought back to the most convenient port of the United States.
"Sec. 586. Unlawful Unlading Exception.
1
The master of any vessel from a foreign port or place who allows any merchandise (including sea
stores) to be unladen from such vessel at any time after its arrival within four leagues of the coast of the
United States and before such vessel has come to the proper place for the discharge of such merchandise,
and before he has received a permit to unlade, shall be liable to a penalty equal to twice the value of the
merchandise but not less than $1,000, and such vessel and the merchandise shall be subject to seizure and
forfeiture: Provided, that whenever any part of the cargo or stores of a vessel has been unladen or
transshipped because of accident, stress of weather, or other necessity, the master of such vessel shall, as
soon as possible thereafter, notify the collector of the district within which such unlading or transshipment
has occurred, or the collector within the district at which such vessel shall first arrive thereafter, and shall
furnish proof that such unlading or transshipment was made necessary by accident, stress of weather, or
other unavoidable cause, and if the collector is satisfied that the unlading or transshipment was in fact due
to accident, stress of weather, or other necessity the penalties above described shall not be incurred."
"Sec. 593. Smuggling and Clandestine Importations. (a) If any person knowingly and willfully, with
intent to defraud the revenue of the United States, smuggles, or clandestinely introduces, into the United
States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass,
through the custom house any false, forged, or fraudulent invoice, every such person, his, her, or their
aidors and abettors, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in
any sum not exceeding $5,000, or imprisoned for any term of time not exceeding two years, or both, at the
"(b) If any person fraudulently or knowingly imports or brings into the United States, or assists in so
doing, any merchandise, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the
transportation, concealment, or sale of such merchandise after importation, knowing the same to have
been imported or brought into the United States contrary to law, such merchandise shall be forfeited and
the offender shall be fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any
time not exceeding two years, or both. Whenever, on trial for a violation of this section, the defendant is
shown to have or to have had possession of such goods, such possession shall be deemed evidence
sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of
the jury.
"Sec. 594. Seizure of Vessels and Vehicles. Whenever a vessel or vehicle, or the owner or master,
conductor, driver, or other person in charge thereof, has become subject to a penalty for violation of the
customs revenue laws of the United States, such vessel or vehicle shall be held for the payment of such
penalty and may be seized and proceeded against summarily by libel to recover the same: Provided, that
no vessel or vehicle used by any person as a common carrier in the transaction of business as such
common carrier shall be so held or subject to seizure or forfeiture under the customs laws, unless it shall
appear that the owner or master of such vessel or the conductor, driver, or other person in charge of such
vehicle was at the time of the alleged illegal act a consenting party or privy thereto."
So much of the Treaty as is necessary for consideration is as follows:
"Article I.
"The high contracting parties declare that it is their firm intention to uphold the principle that 3 marine
miles extending from the coastline outwards and measured from low-water mark constitute the proper
limits of territorial waters."
"Article II, Sections 1, 2, and 3.
"(1) His Britannic Majesty agrees that he will raise no objection to the boarding of private vessels under
the British flag outside the limits of territorial waters by the authorities of the United States, its territories
or possessions in order that enquiries may be addressed to those on board and an examination be made of
the ship's papers for the purpose of ascertaining whether the vessel or those on board are endeavoring to
import or have imported alcoholic beverages into the United States, its territories or possessions in
violation of the laws there in force. When such enquiries and examination show a reasonable ground for
suspicion, a search of the vessel may be instituted.
"(2) If there is reasonable cause for belief that the vessel has committed or is committing or attempting to
commit an offense against the laws of the United States, its territories or possessions prohibiting the
importation of alcoholic beverages, the vessel may be seized and taken into a port of the United States, its
territories or possessions for adjudication in accordance with such laws.
"(3) The rights conferred by this article shall not be exercised at a greater distance from the coast of the
United States, its territories, or possessions than can be traversed in one hour by the vessel suspected of
endeavoring to commit the offense. In cases, however, in which the liquor is intended to be conveyed to
the United States, its territories or possessions by a vessel other than the one boarded and searched, it shall
be the speed of such other vessel and not the speed of the vessel boarded, which shall determine the
distance from the coast at which the right under this article can be exercised."
But before we proceed to discuss the above-quoted sections of the Tariff Act as well as the treaty, it may
be well to dispose of one of the contentions made by counsel in behalf of the cargo and the schooner.
The proposition is advanced that, regardless of our municipal legislation, the acts complained of could not
constitute offenses against the United States when committed by foreign nationals, on foreign bottoms, on
the high seas at a point beyond the territorial jurisdiction of the country. Well-known principles of
international practice are invoked in support of this contention accompanied with the citation of authority.
Upon careful consideration, however, I am led to conclude that a misconception exists here as to the
status, in a federal forum, of so-called international law when that law encounters a municipal enactment.
If we assume for the present that the national legislation has, by its terms, made the acts complained of a
crime against the United States even when committed on the high seas by foreign nationals upon a ship of
foreign registry, then there is no discretion vested in the federal court, once it obtains jurisdiction, to
decline enforcement. International practice is law only in so far as we adopt it, and like all common or
statute law it bends to the will of the Congress. It is not the function of courts to annul legislation; it is
their duty to interpret and by their judicial decrees to enforce it and even when an act of Congress is
declared invalid, it is only because the basic law is being enforced in that declaration. There is one ground
only upon which a federal court may refuse to enforce an act of Congress and that is when the act is held
to be unconstitutional. The act may contravene recognized principles of international comity, but that
affords no more basis for judicial disregard of it than it does for executive disregard of it. These libels,
therefore, cannot be attacked upon the ground that the territorial jurisdiction of the United States cannot be
extended beyond the three-mile sea zone under international law.
2 performed within our territory cannot constitute an offense against the United States when performed at
If, however, the court has no option to refuse the enforcement of legislation in contravention of principles
of international law, it does not follow that in construing the terms and provisions of a statute it may not
assume that such principles were on the national conscience and that the congressional act did not
deliberately intend to infringe them. In other words, unless it unmistakably appears that a congressional
act was intended to be in disregard of a principle of international comity, the presumption is that it was
intended to be in conformity with it. It is with such a principle in mind that we now proceed to an
examination of the legislation upon which the government relies.
Section 447 of the Tariff Act of 1922, quoted supra, makes it unlawful for the vessel to make entry of or to
unlade any part of its cargo elsewhere than at a port of entry. Part of the cargo of Over the Top was
unloaded on the high seas, and the government contends that the statute was thereby violated. To me it
seems that the statute was intended to prevent entry or unlading at a port or place in the country other than
a port of entry. It had no reference to unlading on the seas even when done within the three-mile zone. But
waiving that question, it is to be noted that the act is phrased in general language and that it bespeaks no
suggestion of territorial limitation. The proposition has not heretofore been advanced that for that reason
the act has attempted to extend the territorial jurisdiction of the United States over the whole earth. Almost
all criminal statutes, or statutes prohibiting defined conduct, are phrased in general language without
mention of territorial limitation. But they are all to be read in the light of the principle that jurisdiction is
not extraterritorial and that the municipal legislation is not attempting to regulate or to punish conduct
performed outside of the national domain. For example, the statutes of Connecticut do not forbid larceny
in Connecticut they forbid larceny. The statutes of the United States do not forbid counterfeiting in the
United States they forbid counterfeiting. That the Congress may, in disregard of the law of nations,
prohibit acts by foreign nationals not committed within our domain, has already been conceded; but unless
such intent clearly appears from the language of the statute such intent is not to be presumed.
It would seem that the libelant does not take the view that the acts complained of constituted an infraction
of our law by the very force of the language of the statute, else there would be no reason to invoke the aid
of the provisions of American-British Treaty. It is obvious that if the unlading of the whisky 19 or 20 miles
out at sea constituted a violation of section 447 of the Tariff Act, then such violation was justiciable and
punishable irrespective of the provisions of the treaty. The treaty would serve to obviate diplomatic
embarrassments arising out of the seizure of a British vessel on the high seas, but it would be useless for
the purposes of determining the intent of the provisions of section 447 of the Tariff Act.
The same considerations apply with equal force to the provisions of sections 448, 450, 453, 585, 593, and
594 of the Tariff Act of 1922. These enactments of the Congress are implicit with the proviso that the acts
therein denounced be accomplished within the territory of the United States. No attempt is there
discernible to extend the legislative jurisdiction of the United States beyond its boundaries. Of utmost
significance, therefore, is the language of section 586 of the act providing that the master of any vessel
from a foreign port, who allows any merchandise to be unladen from such vessel at any time after its
arrival within four leagues of the coast of the United States, and before such vessel has come to the proper
place for the discharge of such merchandise, and before permission has been given to unlade, shall be
liable to a penalty, and the vessel and the merchandise shall be subject to seizure and forfeiture. It appears
to me that this section has a most important, if not a determinative, bearing upon the point under
discussion. This enactment has been part of our legislation for over a hundred years. Here we have a
distinct extension of our sea jurisdiction to a point 12 miles from the coast an assertion of authority
which may perhaps clash with international practice, but which, whether challenged or not, is
unmistakable, and which, therefore, it is the business of our courts to enforce. Had the master and super
cargo of Over the Top been guilty of unlading the liquor at a point within this 12-mile zone, it may be that
we would have had no difficulty in sustaining the libels.
Indeed, the applicability of section 593 of the Tariff Act to the case at bar has already been negatively
determined in the authoritative opinion of the Supreme Court in Keck v. United States, 172 U.S. 434, 19
S. Ct. 254, 43 L. Ed. 505. The statute which was the subject of construction in that case was substantially
the same in language as section 593 now under consideration, and there it was held that the offense
denounced by the statute could not be accomplished until the customs barrier had been passed, and
therefore, even though goods intended to be smuggled were brought within the three-mile sea zone, that,
nevertheless, smuggling was not perpetrated until the goods were landed and passed into the country.
My conclusion, then, is that as no statute embracing the subject-matter of sections 447, 448, 450, 453,
585, 586, 593, and 594 of the Tariff Act of 1922 has extended our territorial jurisdiction to a point on the
high seas distant 19 miles from our coast, conduct which would have been in violation of these sections if
such a distance by foreign nationals on ships of foreign registry. If, for the purpose of our treasury, we can
extend our sea jurisdiction to a point four leagues from the coast, I see no reason why we cannot extend it
four leagues more. I merely observe that we have not done so yet.
I now come to the provisions of the American-British Treaty, which was obviously contracted for the
purpose of preventing hovering ships from supplying intoxicating liquor to carriers running between the
ships and the shore. There can be no question as to the general intent of the treaty and as to what was
supposed to have been accomplished by its provisions. But it is one thing to apprehend the purpose of an
act and quite another to determine that the language of the act is effective. The treaty in question provides
that no objections will be raised by the British government to the boarding of vessels flying the British
flag outside the territorial waters of the United States for the purpose of investigating the cargo in order to
determine whether the vessel or those on board are endeavoring to import alcoholic beverages into the
United States in violation of our laws. The British government further does not object to the seizure of
such a vessel found violating our law and to its disposition in accordance with such laws. The treaty
further provides that the zone of operations by the United States is extended to a point one hour's running
distance from our coast, wholly irrespective of the mileage coverable within such hour, and that where the
liquor is intended to be conveyed to the coast by a vessel other than the one boarded and searched it is the
speed of that vessel which is to determine the distance.
I have already found that the possible speed of the sea sled under the conditions disclosed by the
testimony was about 30 knots an hour. But the evidence showed that this speed was made in the daylight
when the boat carried no load, and when it skidded along over the top of the water with its stern only
displacing water and while running from New London to Point Judith Gas Buoy and along the lee of the
land. There is absolutely no evidence in the record as to how far the sea sled could travel in an hour and in
the dark with 25 cases of liquor and three men aboard as on the night it left the schooner Over the Top
with wind, weather, and tide as it in fact existed on the night in question.
Now the treaty provides that the right of seizure cannot be exercised at a greater distance from the coast
"than can be traversed in one hour by the vessel suspected of endeavoring to commit the offense." As we
are dealing here with fines and forfeitures, I cannot assume that this language was intended to cover an
hypothetical case; that the seizure would be treated as legal if accomplished at a point constituting the
greatest distance which the unladen ship could traverse in one hour at her maximum speed under the most
favorable conditions of wind and tide. It seems to me that a rational construction requires us to measure
the distance by the actual speed of the boat accomplished from the point of capture to the nearest available
point on the coast in normal wind and tide and under the same conditions as pertain at the time of the
seizure. Nor can I see any reason for applying any different rule when the distance is to be measured by
the speed of the carrier from ship to coast. It is the speed of the boat conveying liquor, and when it is
engaged in conveying liquor to the United States, that must be determined. When conveying liquor, her
speed may be below that of her speed when empty.
That such jurisdictional facts may be exceedingly difficult of proof, and that penalties and forfeitures are
to be determined by a standard as uncertain as the equity which once was said to vary with the size of the
chancellor's foot, may be a matter of regret; but it is the business of the courts to construe treaties and not
to make them. But it is to be noted in this particular case the sea sled, owned by the government and
operated by government officials, had full opportunity to time its run laden with its crew and 25 cases of
liquor on the night in question and so present in court reliable and satisfactory evidence. Instead, they
turned and made for the Tampa, and on it unloaded 23 cases and carried only 2 cases to New London. And
no explanation was offered for such operations.
There being no evidence before me from which I can determine the speed of the sea sled when laden with
the 25 cases of liquor, and no evidence to meet the provisions of the treaty that, "In cases, however, in
which the liquor is intended to be conveyed to the United States * * * by a vessel other than the one
boarded and searched, it shall be the speed of such other vessel, * * * which shall determine the distance
from the coast at which the right under this article can be exercised" (article 2, 3), I would feel obliged
for this reason alone to decree a dismissal of the libels. But I am not unmindful of the possibility of error
in my construction of this part of the treaty and a much larger question looms in the background.
It must be noted that the treaty does not define the acts constituting an offense against the laws of the
United States prohibiting the importation of alcoholic beverages. These acts are defined in the statute. If
reasonable grounds exist for believing that a vessel under British registry is in fact guilty of contravening
the Prohibition Law (Comp. St. Ann. Supp. 1923, 10138 et seq.), then our government may seize it if
it is within the specified area, and when seized its fate may then be determined in accordance with our
laws. If it is not within the specified area, it may not even be seized. But if it is within the specified area, it
does not follow that it is for that reason violating our laws.
Now the grant by one sovereign to another of the right to seize its nationals upon the high seas without
process and by force majeure for crimes committed by those nationals against the offended sovereign, by
no means declares that those acts when committed on the high seas constitute such crimes. If, before this
treaty was contracted, the unlading of merchandise by a ship of British registry at a point more than four
leagues removed from the coast of the United States did not constitute a crime against the United States
(and there appears to be no contention that it did), then the treaty could not and did not make it a crime.
In support of its contention, the government cites and relies upon United States v. The Pictonian, 3 F.2d
145, recently decided in the Eastern district of New York, where it was held that the American-British
Treaty did, as to ships of British registry, extend the operation of the criminal laws of the United States to
the shifting line designated in the treaty. I have carefully read Judge Campbell's opinion and find myself
unable to agree with its reasoning. The learned judge speaks of the treaty as self-executing. The
significance of the phrase in this connection is somewhat obscure. As a treaty, there was no need of
congressional legislation to make it effective, and in this sense all treaties are self-executing. But if it was
the intent of the government to make it a crime for a ship of British registry to unlade liquor within a sea
zone on our coast, traversible in one hour, then that intent was not effectuated by the mere execution of the
treaty. It is not the function of treaties to enact the fiscal or criminal law of a nation. For this purpose no
treaty is self-executing. Congress may be under a duty to enact that which has been agreed upon by treaty,
but duty and its performance are two separate and distinct things. Nor is there any doubt that the treaty
making power has its limitations. What these are has never been defined, perhaps never need be defined.
Certain it is that no part of the criminal law of this country has ever been enacted by treaty.
Illustrations of congressional effectuation of treaties are plentiful. All treaties requiring payments of
money have been followed by acts of Congress appropriating the amount. The treaties were the supreme
law of the land, but they were ineffective to draw a dollar from the treasury. The Russian-American Treaty
of 1824 ( 8 Stat. 302) against selling liquors to the Alaskan natives was followed by the necessary penal
legislation by the Congress. The treaty with various powers made in 1847 defining piracy and declaring its
punishment, received similar reinforcing enactments. The same was true of the Treaty of 1862 with Great
Britain ( 12 Stat. 1225), suppressing the slave trade; of the Treaty of 1884 ( 24 Stat. 989), with various
powers imposing fines and penalties for the protection of submarine cables; and of the Treaty of 1912 ( 37
Stat. 1542), for the protection of seals in the North Pacific Ocean.
The instances just cited indicate the practice of congressional action in order to effectuate the penal
provisions of a treaty, and I have no doubt that such practice is necessary in order to accomplish the
purposes of the treaties. It happens that the American-British Treaty here under consideration does not
declare it a crime for a British national on a ship of British registry to sell liquor for purposes of
importation into this country within one hour's running distance of our shore. Nor does the treaty forbid
such an act. But even if such conduct had been prohibited by the terms of the treaty, no indictment could
lie for transgressing that prohibition. If an indictment could not lie for violating the direct command of the
Eighteenth Amendment to the Constitution until the Congress had defined the offense and proclaimed the
penalty, then the fiat of a treaty would be inadequate for such a purpose. No distinction exists here
between the necessary basis of an indictment and that of a libel for forfeiture. If the facts do not warrant an
indictment, they do not warrant a penalty.
In this connection it may be well to emphasize the general nature of the provisions of the Tariff Act relied
upon by the libelant. In the instance at bar, we happen to be dealing with liquor, but the legislation which
is invoked is by no means concerned exclusively with this commodity. A British or French ship unlading
coffee or coal within the 12-mile limit, and before entry and permission to unlade, would be just as guilty
of violating these acts as if she were unlading liquor. Neither her nationality nor the nature of her cargo
would have any bearing on the issues.
Whether therefore the Senate and the Executive may constitutionally enact criminal legislation by the
device of a mere treaty is a question which fortunately we need not discuss. It is sufficient to conclude that
the American-British Treaty did not in fact enact new criminal legislation.
There are other considerations which should be noted. It is conceded that a sale was made; that the
supercargo sold the cases of liquor to the government agent aboard the government sea sled and received
$550. This transaction was on the high seas and 7 miles beyond the 12-mile limit and at a place where the
transaction was valid. Title therefore passed. Can it be claimed that there was a violation either by
schooner or cargo (for these libels are against them) of any law of the United States? After the sale, title to
the goods vested in the government men. Under section 593 is it claimed they smuggled the goods into
this country? If they did not, there was no violation of United States law certainly none by cargo or
schooner or even by the men aboard who made the sale, as they all lost title when the goods were bought
and paid for, and, of course, no one claims the government men smuggled the liquor. The whole situation
seems a perfect paradox. The respondents plead entrapment as a defense, and urge it strenuously in the
brief. In view of the conclusions above reached, it is not necessary to discuss at length this question. It is
sufficient to say that there is much merit in the defense when considered in connection with the above
proposition that when the title to the goods passed and became vested in the purchasers, the respondents
could not smuggle what they sold, and which they would not have sold had they not been importuned by
the men on the sea sled.
The considerations as above expressed therefore impel the conclusion that there is no legal basis for these
libels, and it follows that they must be and the same are dismissed. Submit findings and decree.

Pharmaceutical and Health Care Association Of The Philippines
vs. Health Secretary Francisco T. Duque III
G.R. No. 173034, October 9, 2007
Austria-Martinez, J.:
Facts:
On October 28, 1986, Executive Order No. 51 (Milk Code) was issued by President Corazon
Aquino by virtue of the legislative powers granted to the president under the Freedom Constitution. The
Milk Code states that the law seeks to give effect to Article 112 of the International Code of Marketing of
Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From
1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be supported,
promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for
breastmilk substitutes. the Philippines ratified the International Convention on the Rights of the Child.
Article 24 of said instrument provides that State Parties should take appropriate measures to diminish
infant and child mortality, and ensure that all segments of society, specially parents and children, are
informed of the advantages of breastfeeding. the DOH issued RIRR which was to take effect on July 7,
2006. a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Revised
Implementing Rules and Regulations of The Milk Code, assailing that the RIRR was going beyond the
provisions of the Milk Code, thereby amending and expanding the coverage of said law.
Issue:
Whether or not respondents officers of the DOH acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the
provisions of the Constitution in promulgating the RIRR
Ruling:
The Supreme Court PARTIALLY GRANTED the petition. Sections 4(f), 11 and 46 of
Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra
vires. The Department of Health and respondents are PROHIBITED from implementing said provisions.
The international instruments pointed out by the respondents, UNRC, ICESR, CEDAW, are deemed part
of the law of the land and therefore the DOH may implement them through the RIRR. Customary
international law is deemed incorporated into our domestic system. Custom or customary international law
means a general and consistent practice of states followed by them from a sense of legal obligation
(opinio juris). Under the 1987 Constitution, international law can become part of the sphere of domestic
law either by transformation or incorporation. The transformation method requires that an international
law be transformed into a domestic law through a constitutional mechanism such as local legislation.
Generally accepted principles of international law refers to norms of general or customary international
law which are binding on all states. The Milk Code is a verbatim reproduction of the (ICMBS), but it did
not prohibit advertising or other forms of promotion to the general public of products. Instead, the Milk
Code expressly provides that advertising, promotion, or other marketing materials may be allowed if such
materials are duly authorized and approved by the Inter-Agency Committee (IAC). In this regard, the
WHA Resolutions adopting the ICMBS are merely recommendatory and legally non-binding. This may
constitute soft law or non-binding norms, principles and practices that influence state behavior.
Respondents have not presented any evidence to prove that the WHA Resolutions, although signed by
most of the member states, were in fact enforced or practiced by at least a majority of the member states
and obligatory in nature. The provisions of the WHA Resolutions cannot be considered as part of the law
of the land that can be implemented by executive agencies without the need of a law enacted by the
legislature. On the other hand, the petitioners also failed to explain and prove by competent evidence just
exactly how such protective regulation would result in the restraint of trade. Since all the regulatory
provisions under the Milk Code apply equally to both manufacturers and distributors, the Court sees no
harm in the RIRR. Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective, purpose and intent of the Milk Code.
The Paquete Habana and The Lola 175 U.S. 677 (1900)
Facts:
These are two appeals from decrees of the district court of the United States for the southern
district of Florida condemning two fishing vessels and their cargoes as prize of war.
Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in
fishing on the coast of Cuba. It sailed under the Spanish flag and was owned by a Spanish
subject of Cuban birth, living in the city of Havana. It was commanded by a subject of Spain,
also residing in Havana. Her master and crew had no interest in the vessel, but were entitled to
share her catch.
Her cargo consisted of fresh fish, caught by her crew from the sea, put on board as they were
caught, and kept and sold alive. Until stopped by the blockading squadron she had no
knowledge of the existence of the war or of any blockade. She had no arms or ammunition on
board, and made on attempt to run the blockade after she knew of its existence, nor any
resistance at the time of the capture.
The Paquete Habana (1st vessel) was a sloop and had a crew of three Cubans, including the
master, who had a fishing license from the Spanish government, and no other commission or
license. She left Havana and was captured by the United States gunboat Castine.
The Lola (2nd vessel) was a schooner and had a crew of six Cubans, including the master, and
no commission or license. She was stopped by the United States steamship Cincinnati, and
was warned not to go into Havana, but was told that she would be allowed to land at Bahia
Honda. She then set for Bahia Honda, but on the next morning, when near that port, was
captured by the United States steamship Dolphin.
Both the fishing vessels were brought by their captors into Key West. A libel for the
condemnation of each vessel and her cargo as prize of war was filed. Each vessel was sold by
auction (the Paquete Habana for the sum of $490 and the Lola for the sum of $800). There was
no other evidence in the record of the value of either vessel or of her cargo.
Issue:
Whether or not the fishing smacks were subject to capture during the war with Spain.
Held:
No. By an ancient usage among civilized nations, beginning centuries ago, and gradually
ripening into a rule of international law, coast fishing vessels, pursuing their vocation of
catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and
crews, from capture as prize of war. (The case then discussed instances throughout history
where fishing vessels were captured.)
It will be convenient to refer to some leading French treatises on international law as
determined by the general consent of civilized nations.
'Enemy ships,' say Pistoye and Duverdy, in their Treatise on Maritime Prizes, published in
1855, 'are good prize. Not all, however; for it results from the unanimous accord of the
maritime powers that an exception should be made in favor of coast fishermen. Such
fishermen are respected by the enemy so long as they devote themselves exclusively to
fishing.'
De Cussy, in his work on the Phases and Leading Cases of the Maritime Law of Nations,
affirms in the clearest language the exemption from capture of fishing boats, saying, that 'in
time of war the freedom of fishing is respected by belligerents; fishing boats are considered as
neutral; in law, as in principle, they are not subject either to capture or to confiscation.
Ortolan, in the fourth edition of his Regles Internationales et Diplomatie de la Mer, after
stating the general rule that the vessels and cargoes of subjects of the enemy are lawful prize,
says: 'Nevertheless, custom admits an exception in favor of boats engaged in the coast fishery;
these boats, as well as their crews, are free from capture and exempt from all hostilities. The
coast-fishing industry is, in truth, wholly pacific, and of much less importance in regard to the
national wealth that it may produce than maritime commerce or the great fisheries. Peaceful
and wholly inoffensive, those who carry it on, may be called the harvesters of the territorial
seas, since they confine themselves to gathering in the products thereof; they are for the most
part poor families who seek in this calling hardly more than the means of gaining their
livelihood.' Again, after observing that there are very few solemn public treaties which make
mention of the immunity of fishing boats in time of war, he says: 'From another point of view
the custom which sanctions this immunity is not so general that it can be considered as making
an absolute international rule; but it has been so often put in practice, and, besides, it accords
so well with the rule in use in wars on land, in regard to peasants and husbandmen, to whom
coast fishermen may be likened, that it will doubtless continue to be followed in maritime
wars to come. (A lot of opinions of other writers were also included which will not be
mentioned in this digest)
This review of the precedents and authorities on the subject appears to us abundantly to
demonstrate that at the present day, by the general consent of the civilized nations of the
world, and independently of any express treaty or other public act, it is an established rule of
international law, founded on considerations of humanity to a poor and industrious order of
men, and of the mutual convenience of belligerent states, that coast fishing vessels, with their
implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful
calling of catching and bringing in fresh fish, are exempt from capture as prize of war.
The exemption, of course, does not apply to coast fishermen or their vessels if employed for a
warlike purpose, or in such a way as to give aid or information to the enemy; nor when
military or naval operations create a necessity to which all private interests must give way.
Nor has the exemption been extended to ships or vessels employed on the high sea in taking
whales or seals or cod or other fish which are not brought fresh to market, but are salted or
otherwise cured and made a regular article of commerce.
This rule of international law 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.
By the practice of all civilized nations, vessels employed only for the purposes of discovery or
science are considered as exempt from the contingencies of war, and therefore not subject to
capture. It has been usual for the government sending out such an expedition to give notice to
other powers; but it is not essential.
To this subject in more than one aspect are singularly applicable the words uttered by Mr.
Justice Strong, speaking for this court: 'Undoubtedly no single nation can change the law of
the sea. The law is of universal obligation and no statute of one or two nations can create
obligations for the world. Like all the laws of nations, it rests upon the common consent of
civilized communities. It is of force, not because it was prescribed by any superior power, but
because it has been generally accepted as a rule of conduct. Whatever may have been its
origin, whether in the usages of navigation, or in the ordinances of maritime states, or in both,
it has become the law of the sea only by the concurrent sanction of those nations who may be
said to constitute the commercial world. Many of the usages which prevail, and which have
the force of law, doubtless originated in the positive prescriptions of some single state, which
were at first of limited effect, but which, when generally accepted, became of universal
obligation.'
In the case, each vessel was of a moderate size, such as is not unusual in coast fishing smacks,
and was regularly engaged in fishing on the coast of Cuba. The crew of each were few in
number, had no interest in the vessel, and received, in return for their toil and enterprise, two
thirds of her catch, the other third going to her owner by way of compensation for her use.
Each vessel went out from Havana to her fishing ground, and was captured when returning
along the coast of Cuba. The cargo of each consisted of fresh fish, caught by her crew from the
sea, and kept alive on board. Although one of the vessels extended her fishing trip, we cannot
doubt that each was engaged in the coast fishery, and not in a commercial adventure, within
the rule of international law.
The case was adjudged that the capture was unlawful and without probable cause ordered that
the proceeds of the sale of the vessel, together with the proceeds of any sale of her cargo, be
restored to the claimant, with damages and costs.
Brief Fact Summary. The argument of the fishermen whose vessels was seized by the U.S
(P) officials was that international law exempted coastal fishermen from capture as prizes of
war.
Synopsis of Rule of Law. The argument of the fishermen whose vessels was seized by the
U.S (P) officials was that international law exempted coastal fishermen from capture as prizes
of war.
Facts. This appeal of a district court decree, which condemned two fishing vessels and their
cargoes as prizes of war, was brought by the owners (D) of two separate fishing vessels. Each
of the vessel running in and out of Havana and sailing under the Spanish flag was a fishing
smack which regularly engaged in fishing on the coast of Cuba. Inside the vessels were fresh
fish which the crew had caught.
The owners of the vessels were not aware of the existence of a war until they were stopped by
U.S. (P) squadron. No incriminating material like arms were found on the fishermen and they
did not make any attempt to run the blockade after learning of its existence not did they resist
their arrest. When the owners (D) appealed, they argued that both customary international law
and writings of leading international scholars recognized an exemption from seizure at
wartime of coastal fishing vessels.
Issue. Are coastal fishing vessels with their cargoes and crews excluded from prizes of war?
Held. (Gray, J.). Yes. Coastal fishing vessels with their cargoes and crews are excluded from
prizes of war. The doctrine that exempts coastal fishermen with their vessels and crews from
capture as prizes of war has been known by the U.S. (P) from the time of the War of
Independence and has been recognized explicitly by the French and British governments. It is
an established rule of international law that coastal fishing vessels with their equipment and
supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching
and bringing in fish are exempt from capture as prizes of war. Reversed.
Discussion. Chief Justice Fuller who had a dissenting opinion which was not published in this
casebook argued that the captured vessels were of such a size and range as to not fall within
the exemption. He further argued that the exemption in any case had not become a customary
rule of international law, but was only an act of grace that had not been authorized by the
President.
Asylum Case (Columbia/Peru), 1950, ICJ.
Overview: Columbia granted asylum to a Peruvian, accused of taking part in a military rebellion in
Peru. Was Columbia entitled to make a unilateral and definitive qualification of the offence (as a
political offence) in a manner binding on Peru and was Peru was under a legal obligation to provide
safe passage for the Peruvian to leave Peru?
Facts of the Case: Peru issued an arrest warrant against Victor Raul Haya de la Torre in respect of
the crime of military rebellion which took place on October 3, 1949, in Peru. 3 months after the
rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador
confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana
Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently,
the Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the
same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification and
refused to grant safe passage.
Questions before the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for
the purpose of asylum under treaty law and international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter
called the Havana Convention) when it granted asylum and is the continued maintenance of asylum
a violation of the treaty?
The Courts Decision:
Relevant Findings of the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for
the purpose of asylum under treaty law and international law?
1. The court stated that in the normal course of granting diplomatic asylum a diplomatic
representative has the competence to make a provisional qualification of the offence (for example,
as a political offence) and the territorial State has the right to give consent to this qualification. In
the Torres case, Colombia has asserted, as the State granting asylum, that it is competent to qualify
the nature of the offence in a unilateral and definitive manner that is binding on Peru. The court had
to decide if such a decision was binding on Peru either because of treaty law (in particular the
Havana Convention of 1928 and the Montevideo Convention of 1933), other principles of
international law or by way of regional or local custom.
2. The court held that there was no expressed or implied right of unilateral and definitive
qualification of the State that grants asylum under the Havana Convention or relevant principles of
international law (p. 12, 13). The Montevideo Convention of 1933, which accepts the right of
unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was not
ratified by Peru. The Convention, per say, was not binding on Peru and considering the low numbers
of ratifications the provisions of the latter Convention cannot be said to reflect customary
international law (p. 15).
3. Colombia also argued that regional or local customs support the qualification. The court held that
the burden of proof on the existence of an alleged customary law rests with the party making the
allegation:
The Party which relies on a custom of this kind must prove that this custom is established in such a
manner that it has become binding on the other Party (that) it is in accordance with a (1)
constant and uniform usage (2) practiced by the States in question, and that this usage is (3) the
expression of a right appertaining to the State granting asylum (Columbia) and (4) a duty
incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute of
the Court, which refers to international custom as evidence of a general practice accepted as
law(text in brackets added).
4. The court held that Columbia did not establish the existence of a regional custom because it failed
to prove consistent and uniform usage of the alleged custom by relevant States. The fluctuations and
contradictions in State practice did not allow for the uniform usage (see also Mendelson, 1948 and
see also Nicaragua case, p. 98, the legal impact of fluctuations of State practice). The court also
reiterated that the fact that a particular State practice was followed because of political expediency
and not because of a belief that the said practice is binding on the State by way of a legal obligation
(opinio juris) is detrimental to the formation of a customary law (see North Sea Continental Shelf
Cases and Lotus Case for more on opinio juris):
[T]he Colombian Government has referred to a large number of particular cases in which
diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule of
unilateral and definitive qualification was invoked or that it was, apart from conventional
stipulations, exercised by the States granting asylum as a right appertaining to them and respected
by the territorial States as a duty incumbent on them and not merely for reasons of political
expediency. The facts brought to the knowledge of the Court disclose so much uncertainty and
contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the
official views expressed on various occasions, there has been so much inconsistency in the rapid
succession of conventions on asylum, ratified by some States and rejected by others, and the
practice has been so much influenced by considerations of political expediency in the various cases,
that it is not possible to discern in all this any constant and uniform usage, mutually accepted as
law, with regard to the alleged rule of unilateral and definitive qualification of the offence.
5. The court held that even if Colombia could prove that such a regional custom existed, it would
not be binding on Peru, because Peru far from having by its attitude adhered to it, has, on the
contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939,
which were the first to include a rule concerning the qualification of the offence [as political in
nature] in matters of diplomatic asylum. (See in this regard, the lesson on persistent objectors.
Similarly in the North Sea Continental Shelf Cases the court held in any event the . . . rule would
appear to be inapplicable as against Norway in as much as she had always opposed any attempt to
apply it to the Norwegian coast.)
6. The court concluded that Columbia, as the State granting asylum, is not competent to qualify the
offence by a unilateral and definitive decision, binding on Peru.
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?
7. The court held that there was no legal obligation on Peru to grant safe passage either because of
the Havana Convention or customary law. In the case of the Havana Convention, a plain reading of
Article 2 results in an obligation on the territorial state (Peru) to grant safe passage only after it
requests the asylum granting State (Columbia) to send the person granted asylum outside its
national territory (Peru). In this case the Peruvian government had not asked that Torre leave Peru.
On the contrary, it contested the legality of asylum granted to him and refused to grant safe conduct.
8. The court looked at the possibility of a customary law emerging from State practice where
diplomatic agents have requested and been granted safe passage for asylum seekers, before the
territorial State could request for his departure. Once more, the court held that these practices were a
result of a need for expediency and other practice considerations over an existence of a belief that
the act amounts to a legal obligation (see paragraph 4 above).
There exists undoubtedly a practice whereby the diplomatic representative who grants asylum
immediately requests a safe conduct without awaiting a request from the territorial state for the
departure of the refugeebut this practice does not and cannot mean that the State, to whom such a
request for safe-conduct has been addressed, is legally bound to accede to it.
(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and
is the continued maintenance of asylum a violation of the treaty?
9. Article 1 of the Havana Convention states that It is not permissible for States to grant asylum
to persons accused or condemned for common crimes (such persons) shall be surrendered upon
request of the local government.
10. In other words, the person-seeking asylum must not be accused of a common crime (for
example, murder would constitute a common crime, while a political offence would not).The
accusations that are relevant are those made before the granting of asylum. Torres accusation
related to a military rebellion, which the court concluded was not a common crime and as such the
granting of asylum complied with Article 1 of the Convention.
11. Article 2 (2) of the Havana Convention states that Asylum granted to political offenders in
legations, warships, military camps or military aircraft, shall be respected to the extent in which
allowed, as a right or through humanitarian toleration, by the usages, the conventions or the laws of
the country in which granted and in accordance with the following provisions: First: Asylum may
not be granted except in urgent cases and for the period of time strictly indispensable for the person
who has sought asylum to ensure in some other way his safety.
12. An essential pre-requisite for the granting of asylum is the urgency or, in other words, the
presence of an imminent or persistence of a danger for the person of the refugee. The court held
that the facts of the case, including the 3 months that passed between the rebellion and the time
when asylum was sought, did not establish the urgency criteria in this case (pp. 20 -23). The court
held:
In principle, it is inconceivable that the Havana Convention could have intended the term urgent
cases to include the danger of regular prosecution to which the citizens of any country lay
themselves open by attacking the institutions of that country In principle, asylum cannot be
opposed to the operation of justice.
13. In other words, Torre was accused of a crime but he could not be tried in a court because
Colombia granted him asylum. The court held that protection from the operation of regular legal
proceedings was not justified under diplomatic asylum.
14. The court held:
In the case of diplomatic asylum the refugee is within the territory of the State. A decision to grant
diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the
offender from the jurisdiction of the territorial State and constitutes an intervention in matters
which are exclusively within the competence of that State. Such a derogation from territorial
sovereignty cannot be recognised unless its legal basis is established in each particular case.
15. As a result, exceptions to this rule are strictly regulated under international law.
An exception to this rule (asylum should not be granted to those facing regular prosecutions) can
occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such would
be the case if the administration of justice were corrupted by measures clearly prompted by political
aims. Asylum protects the political offender against any measures of a manifestly extra-legal
character which a Government might take or attempt to take against its political opponents On
the other hand, the safety which arises out of asylum cannot be construed as a protection against
the regular application of the laws and against the jurisdiction of legally constituted tribunals.
Protection thus understood would authorize the diplomatic agent to obstruct the application of the
laws of the country whereas it is his duty to respect them Such a conception, moreover, would
come into conflict with one of the most firmly established traditions of Latin-America, namely, non-
intervention [for example, by Colombia into the internal affairs of another State like Peru].
16. Asylum may be granted on humanitarian grounds to protect political prisoners against the
violent and disorderly action of irresponsible sections of the population. (for example during a mob
attack where the territorial State is unable to protect the offender). Torre was not in such a situation
at the time when he sought refuge in the Colombian Embassy at Lima.
17. The court concluded that the grant of asylum and reasons for its prolongation were not in
conformity with Article 2(2) of the Havana Convention (p. 25).
The grant of asylum is not an instantaneous act which terminates with the admission, at a given
moment of a refugee to an embassy or a legation. Any grant of asylum results in, and in
consequence, logically implies, a state of protection, the asylum is granted as long as the continued
presence of the refugee in the embassy prolongs this protection.
The North Sea Continental Shelf Cases (Germany/Denmark; Germany/Netherlands), 1969, ICJ
Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement
for forming customary international law State practice (objective element) and opinio juris (subjective
element). It elaborated the criteria necessary to establish State practice widespread and representative
participation. The case highlighted that the State practice of importance were of those States whose
interests were affected by the custom. It also identified the fact that uniform and consistent practice was
necessary to show opinio juris a belief that the practice amounts to a legal obligation. The North Sea
Continental Self Cases also dispelled the myth that duration of the practice (i.e. the number of years) was
an essential factor in forming customary international law.
The case involved the delimitation of the continental shelf areas in the North Sea between Germany and
Denmark and Germany and Netherlands beyond the partial boundaries previously agreed upon by these
States. The parties requested the ICJ to decide the principles and rules of international law that are
applicable to the above delimitation. The parties disagreed on the applicable principles or rules of
delimitation Netherlands and Denmark relied on the principle of equidistance (the method of
determining the boundaries in such a way that every point in the boundary is equidistant from the nearest
points of the baselines from which the breath of the territorial sea of each State is measured). Germany
sought to get a decision in favour of the notion that the delimitation of the relevant continental shelf is
governed by the principle that each coastal state is entitled to a just and equitable share (hereinafter
called just and equitable principle/method). Contrary to Denmark and Netherlands, Germany argued that
the principle of equidistance was neither a mandatory rule in delimitation of the continental shelf nor a
rule of customary international law that was not binding on Germany. The court was not asked to delimit
the parties agreed to delimit the continental shelf as between their countries, by agreement, after the
determination of the ICJ on the applicable principles.
Facts of the Case: Netherlands and Denmark had drawn partial boundary lines based on the equidistance
principle (A-B and C-D). An agreement on further prolongation of the boundary proved difficult because
Denmark and Netherlands wished this prolongation to take place based on the equidistance principle (B-E
and D-E) where as Germany was of the view that, together, these two boundaries would produce an
inequitable result for her. Germany stated that due to its concave coastline, such a line would result in her
loosing out on her share of the continental shelf based on proportionality to the length of its North Sea
coastline. The Court had to decide the principles and rules of international law applicable to this
delimitation. In doing so, the court had to decide if the principles espoused by the parties were binding on
the parties either through treaty law or customary international law.
Questions before the Court (as relevant to this post):
Is Germany under a legal obligation to accept the equidistance-special circumstances principle, contained
in Article 6 of the Geneva Convention, either as a customary international law rule or on the basis of the
Geneva Convention?
The Courts Decision: The use of the equidistance method had not crystallised into customary law and
was is not obligatory for the delimitation of the areas in the North Sea related to the present proceedings.
Relevant Findings of the Court:
Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6, binding on
Germany?
1. Article 6 of the Geneva Convention on the Continental Shelf states that unless the parties have agreed
on a method for delimitation or unless special circumstances exist, the equidistance method would apply
(see Article 6). Germany has signed but not ratified the Geneva Convention, while Netherlands and
Denmark are parties to the Convention. The latter two States argue that while Germany is not a party to
the Convention (not having ratified it), she is still bound by Article 6 of the Convention because:
(1) by conduct, by public statements and proclamations, and in other ways, the Republic has
unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the
conventional regime; or has recognized it as being generally applicable to the delimitation of continental
shelf areas
(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as
to cause other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken
up (the latter is called the principle of estoppel).
2. The Court rejected the first argument. It stated that only a very definite very consistent course of
conduct on the part of a State would allow the court to presume that a State had somehow become bound
by a treaty (by a means other than in a formal manner: i.e. ratification) when the State was at all times
fully able and entitled to accept the treaty commitments in a formal manner. The Court held that
Germany had not unilaterally assumed obligations under the Convention. The court also took notice of the
fact that even if Germany ratified the treaty, she had the option of entering into a reservation on Article 6
following which that particular article would no longer be applicable to Germany (i.e. even if one were to
assume that Germany had intended to become a party to the Convention, it does not presuppose that it
would have also undertaken those obligations contained in Article 6).
3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in 1980,
discusses more fully the obligations of third States to treaties. It clearly stipulates that an obligation arises
for a third State from a provision of a treaty only if (1) the parties to the treaty intend the provision to
create this obligation for the third States; and (2) the third State expressly accepts that obligation in
writing (A. 35 of the VCLT). The VCLT was not in force when the ICJ deliberated on this case. However,
as seen above, the ICJs position was consistent the VCLT. (See the relevant provisions of the Vienna
Convention on the Law of Treaties).
4. The court held that the existence of a situation of estoppel would have allowed Article 6 to become
binding on Germany but held that Germanys action did not support an argument for estoppel. The court
also held that the mere fact that Germany may not have specifically objected to the equidistance principle
as contained in Article 6 is not sufficient to state that the principle is now binding upon it.
5. In conclusion, the court held that Germany had not acted in any way to incur obligations contained in
Article 6 of the Geneva Convention. The equidistance special circumstances rule was not binding on
Germany by way of treaty.
Nature of the customary international law obligation: Is Germany bound by the provisions of Article 6 of
the Geneva Convention by way of customary international law?
6. Netherlands and Denmark argued that Article 6 also reflected the accepted rule of general international
law on the subject of continental shelf delimitation and existed independently of the Convention.
Therefore, they argued, Germany is bound by it by way of customary international law.
7. To decide if the equidistance principle bound Germany by way of customary international law, the court
examined (1) the status of the principle contained in Article 6 as it stood when the Convention was being
drawn up (2) and after the latter came into force.
What was the customary law status of Article 6 at the time of drafting the Convention?
8. The court held the principle of equidistance, as contained in Article 6, did not form a part of existing or
emerging customary international law at the time of drafting the Convention. The Court supported this
finding based on (1) the hesitation expressed by the drafters of the Convention International Law
Commission on the inclusion of Article 6 (para. 62) and (2) the fact reservations to Article 6 was
permissible under the Convention (Article 12). The court held:
Article 6 is one of those in respect of which, under the reservations article of the Convention (Article
12) reservations may be made by any State on signing, ratifying or acceding for, speaking generally, it is a
characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making
unilateral reservations may, within certain limits, be admitted; whereas this cannot be so in the case of
general or customary law rules and obligations which, by their very nature, must have equal force for all
members of the international community, and cannot therefore be the subject of any right of unilateral
exclusion exercisable at will by any one of them in its own favor. The normal inference would therefore
be that any articles that do not figure among those excluded from the faculty of reservation under Article
12, were not regarded as declaratory of previously existing or emergent rules of law (see para 65 for a
counter argument and the courts careful differentiation)
Did the provisions in Article 6 on the equidistance principle attain the customary law status after the
Convention came into force?
9. The court then examined whether the rule contained in Article 6 had become customary international
law after the Convention entered into force either due the convention itself (i.e., if enough States had
ratified the Convention in a manner to fulfil the criteria specified below), or because of subsequent State
practice (i.e. even if adequate number of States had not ratified the Convention one could find sufficient
State practice to meet the criteria below). The court held that Article 6 of the Convention had not attained
a customary law status (compare the 1958 Geneva Convention with the four Geneva Conventions on 1949
in the field of international humanitarian law in terms of its authority as a pronouncement of customary
international law).
10. For a customary rule to emerge the court held that it needed: (1) very widespread and representative
participation in the convention, including States whose interests were specially affected (i.e. generality);
and (2) virtually uniform practice (i.e. consistent and uniform usage) undertaken in a manner that
demonstrates (3) a general recognition of the rule of law or legal obligation (i.e. opinio juries). In the
North Sea Continental Shelf cases the court held that the passage of a considerable period of time was
unnecessary (i.e. duration) for the formation of a customary law.
Widespread and representative participation
11. The court held that the first criteria was not met. The number of ratifications and accessions to the
convention (39 States) were not adequately representative (including of coastal States i.e. those States
whose rights are affected) or widespread.
Duration
12. The court held that duration taken for the customary law rule to emerge is not as important as
widespread and representative participation, uniform usage and the existence of an opinio juris.
Although the passage of only a short period of time (in this case, 3 5 years) is not necessarily, or of
itself, a bar to the formation of a new rule of customary international law on the basis of what was
originally a purely conventional rule, an indispensable requirement would be that within the period in
question, short though it might be, State practice, including that of States whose interests are specially
affected, should have been both extensive and virtually uniform in the sense of the provision invoked and
should moreover have occurred in such a way as to show a general recognition that a rule of law or legal
obligation is involved (text in brackets added).
Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case) in so far as
those acts or omissions are done following a belief that the said State is obligated by law to act or refrain
from acting in a particular way. (For more on opinio juris click here).
14. The Court examined 15 cases where States had delimited their boundaries using the equidistance
method, after the Convention came into force (paras. 75 -77). The court concluded, even if there were
some State practice in favour of the equidistance principle the court could not deduct the necessary opinio
juris from this State practice. The North Sea Continental Shelf Cases confirmed that both State
practice (the objective element) and opinio juris (the subjective element) are essential pre-requisites for
the formation of a customary law rule. This is consistent with Article 38 (1) (b) of the Statute of the
ICJ. The following explains the concept of opinio juris and the difference between customs (i.e. habits)
and customary law:
Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried
out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of
a rule of law requiring it. The need for such a belief, i.e, the existence of a subjective element, is implicit
in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they
are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the
acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol,
which are performed almost invariably, but which are motivated only by considerations of courtesy,
convenience or tradition, and not by any sense of legal duty.
15. The court concluded that the equidistance principle was not binding on Germany by way of treaty or
customary international law because, in the case of the latter, the principle had not attained a customary
international law status at the time of the entry into force of the Geneva Convention or thereafter. As such,
the court held that the use of the equidistance method is not obligatory for the delimitation of the areas
concerned in the present proceedings.
Case Concerning the Military and Paramilitary Activities In and Against Nicaragua
(Nicaragua vs United States), 1986, ICJ
Overview: The case involved military and paramilitary activities conducted by the United States against
Nicaragua from 1981 to 1984.
Facts of the Case:
In July 1979 the Government of President Somoza collapsed following an armed opposition led by
the Frente Sandinista de Liberacibn Nacional (FSLN) . The new government installed by FSLN
began to meet armed opposition from supporters of the former Somoza Government and ex-members of
the National Guard. The US initially supportive of the new government changed its attitude when,
according to the United States, it found that Nicaragua was providing logistical support and weapons to
guerrillas in El Salvador. In April 1981 it terminated United States aid to Nicaragua and in September
1981, according to Nicaragua, the United States decided to plan and undertake activities directed against
Nicaragua.
The armed opposition to the new Government was conducted mainly by
(1) Fuerza Democratica Nicaragense (FDN), which operated along the border with Honduras, and
(2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica, (see
map of the region). Initial US support to these groups fighting against the Nicaraguan Government (called
contras) was covert. Later, the United States officially acknowledged its support (for example: In 1983
budgetary legislation enacted by the United States Congress made specific provision for funds to be used
by United States intelligence agencies for supporting directly or indirectly military or paramilitary
operations in Nicaragua).
Nicaragua also alleged that the United States is effectively in control of the contras, the United
States devised their strategy and directed their tactics and that they were paid for and directly controlled
by United States personal. Nicaragua also alleged that some attacks were carried out by United
States military with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua
included the mining of Nicaraguan ports and attacks on ports, oil installations and a naval base. Nicaragua
alleged that aircrafts belonging to the United States flew over Nicaraguan territory to gather intelligence,
supply to the contras in the field and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJs
jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing, however, stated
that it relied on an inherent right of collective self-defence guaranteed in A. 51 of the UN Charter by
providing, upon request, proportionate and appropriate assistance to Costa Rica, Honduras and El
Salvador in response to Nicaraguas alleged acts aggression against those countries (paras. 126, 128).
Questions before the Court:
Did the United States breach its customary international law obligation not to intervene in the affairs of
another State when it trained, armed, equipped and financed the contra forces or encouraged,
supported and aided the military and paramilitary activities against Nicaragua?
Did the United States breach its customary international law obligation not to use force against another
State when it directly attacked Nicaragua in 1983 1984 and when its activities in bullet point 1
above resulted in the use of force?
If so, can the military and paramilitary activities that the United States undertook in and against
Nicaragua be justified as collective self-defence?
Did the United States breach its customary international law obligation not to violate the sovereignty of
another State when it directed or authorized its aircrafts to fly over Nicaraguan territory and by acts
referred to in bullet point 2 above?
Did the United States breach its customary international law obligations not to violate the sovereignty
of another State, not to intervene in its affairs, not to use force against another State and not to
interrupt peaceful maritime commerce when it laid mines in the internal waters and the territorial
sea of Nicaragua?
ICJ decision: The United States violated customary international law in relation to bullet points 1, 2, 4 and
5 above. On bullet point 3, the Court found that the United States could not rely on collective self-
defence to justify its use of force against Nicaragua.
Relevant Findings of the Court:
1. The court held that the United States breached its customary international law obligation not to
use force against another State: (1) when it directly attacked Nicaragua in 1983 1984; and (2)
when its activities with the contra forces resulted in the threat or use of force.
The Court held that:
The prohibition on the use of force is found in Article 2(4) of the UN Charter and in customary
international law.
In a controversial finding the court sub-classified the use of force as: (1) the most grave forms of the
use of force (i.e. those that constitute an armed attack) and (2) the less grave form (i.e. organizing,
instigating, assisting or participating in acts of civil strife and terrorist acts in another State when the
acts referred to involve a threat or use of force not amounting to an armed attack).
The United States violated the customary international law prohibition on the use of force when it laid
mines in Nicaraguan ports. It violated this prohibition when it attacked Nicaraguan ports, oil
installations and a naval base (see below). The United States could justify its action on collective self-
defence, if certain criteria were met this aspect is discussed below.
The United States violated the customary international law prohibition on the use of force when it
assisted the contras by organizing or encouraging the organization of irregular forces and armed
bands for incursion into the territory of another state and participated in acts of civil strifein
another State when these acts involved the threat or use of force.
The supply of funds to the contras did not violate the prohibition on the use of force. Nicaragua argued
that the timing of the offensives against it was determined by the United States: i.e. an offensive could
not be launched until the requisite funds were available. The Court held that it does not follow that
each provision of funds by the United States was made to set in motion a particular offensive, and that
that offensive was planned by the United States. The Court held further that while the arming and
training of the contras involved the threat or use of force against Nicaragua, the supply of funds, in it
self, only amounted to an act of intervention in the internal affairs of Nicaragua (para 227) this aspect
is discussed below.
What is an armed attack?
A controversial but interesting aspect of the Courts judgement was its definition of an armed attack. The
Court held that an armed attack included:
(1) action by regular armed forces across an international border; and
(2) the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which
carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual
armed attack conducted by regular forces, or its (the States) substantial involvement therein
 NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the
Definition of Aggression.
Mere frontier incidents are not considered as an armed attack unless because of its scale and effects it
would have been classified as an armed attack if it was carried out by regular forces.
Assistance to rebels in the form of provision of weapons or logistical support did not constitute an
armed attack it can be regarded as a threat or use of force, or an intervention in the internal or external
affairs of other States (see paras 195, 230).
Under Article 51 of the UN Charter and under CIL self-defence is only available against a use of
force that amounts to an armed attack (para 211).
NB: In in the Case Concerning Oil Platforms and the advisory opinion on the Legal Consequences of of
the Construction of a Wall in the Occupied Palestinian Territory (hereinafter called the Palestine wall
case) the ICJ upheld the definition of armed attack proposed in the Nicaragua case. In the Palestinian
wall case, the attacks from which Israel was claiming self defence originated from non-State actors.
However, the Court held that Article 51s inherent right of self defence was available to one State only
against another State (para 139). Judges Higgins, Buergenthal and Kooijmans opposed this narrow view.
Articles on State Responsibility, prepared by the International Law Commission, provided significant
guidance as to when acts of non-State actors may be attributed to States. These articles, together with
recent State practice relating attacks on terrorists operating from other countries (see legal opinions
surrounding the United States attack on Afghanistan), may have widened the scope of an armed attack,
and consequently, the right of self defence, envisaged by the ICJ.
2. The Court held that the United States could not justify its military and paramilitary activities on
the basis of collective self-defence.
Customary international law allows for exceptions to the prohibition on the use of force including the
right to individual or collective self-defence (for a difference between the two forms of self defence,
click here). The United States, at an earlier stage of the proceedings, had asserted that the Charter itself
acknowledges the existence of this customary international law right when it talks of the inherent
right of a State under Article 51 of the Charter (para.193).
When a State claims that it used force in collective self-defence, the Court would look into two aspects:
(1) whether the circumstances required for the exercise of self-defence existed and
(2) whether the steps taken by the State, which was acting in self-defence, corresponds to the requirements
of international law (i.e. did it comply with the principles of necessity and proportionality).
Several criteria must be met for a State to exercise the right of individual or collective self-defence:
(1) A State must have been the victim of an armed attack;
(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an armed
attack took place nor not is done by the state who was subjected to the attack. A third State cannot exercise
a right of collective self-defence based its (the third States) own assessment]; and
(3) In the case of collective self-defence the victim State must request for assistance (there is no rule
permitting the exercise of collective self-defence in the absence of a request by the State which regards
itself as the victim of an armed attack).
(4) The State does not, under customary international law, have the same obligation as under Article 51 of
the UN Charter to report to the Security Council that an armed attack happened but the absence of a
report may be one of the factors indicating whether the State in question was itself convinced that it was
acting in self-defence (see below).
At this point, the Court may consider whether in customary international law there is any
requirement corresponding to that found in the treaty law of the United Nations Charter, by which the
State claiming to use the right of individual or collective self-defence must report to an international body,
empowered to determine the conformity with international law of the measures which the State is seeking
to justify on that basis. Thus Article 51 of the United Nations Charter requires that measures taken by
States in exercise of this right of self-defence must be immediately reported to the Security Council. As
the Court has observed above (paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in
customary international law, may well be so unencumbered with the conditions and modalities
surrounding it in the treaty. Whatever influence the Charter may have had on customary international law
in these matters, it is clear that in customary international law it is not a condition of the lawfulness of the
use of force in self-defence that a procedure so closely dependent on the content of a treaty commitment
and of the institutions established by it, should have been followed. On the other hand, if self-defence is
advanced as a justification for measures which would otherwise be in breach both of the principle of
customary international law and of that contained in the Charter, it is to be expected that the conditions of
the Charter should be respected. Thus for the purpose of enquiry into the customary law position, the
absence of a report may be one of the factors indicating whether the State in question was itself convinced
that it was acting in self-defence (See paras 200, 232 -236).
The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and
Honduras in determining whether an armed attack was undertaken by Nicaragua against the three
countries which in turn would necessitate self-defence (paras 230 236). The Court referred to
statements made by El Salvador, Costa Rica, Honduras and the United States before the Security
Council. None of the countries who were allegedly subject to an armed attack by Nicaragua (1)
declared themselves as a victim of an armed attack or request assistance from the United States in self-
defence at the time when the United States was allegedly acting in collective self-defence; and (2) the
United States did not claim that it was acting under Article 51 of the UN Charter and it did not report
that it was so acting to the Security Council. The Court concluded that the United States cannot justify
its use of force as collective self-defence.
The criteria with regard to necessity and proportionality, that is necessary when using force in
self-defence was also not fulfilled (para 237).
3. The Court held that the United States breached its CIL obligation not to intervene in the affairs
of another State when it trained, armed, equipped and financed the contra forces or encouraged,
supported and aided the military and paramilitary activities against Nicaragua.
The principle of non- intervention means that every State has a right to conduct its affairs without
outside interference i.e it forbids States or groups of States to intervene directly or indirectly in
internal or external affairs of other States. . This is a corollary of the principle of sovereign equality of
States.
A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by
the principle of State sovereignty to decide freely. One of these is the choice of a political, economic,
social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses
methods of coercion in regard to such choices, which must remain free ones. The element of coercion,
which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the
case of an intervention which uses force, either in the direct form of military action, or in the indirect form
of support for subversive or terrorist armed activities within another State (para 205).
Nicaragua stated that the activities of the United States were aimed to overthrow the
government of Nicaragua and to substantially damage the economy and weaken the political system to
coerce the Government of Nicaragua to accept various political demands of the United States. The
Court held:
first, that the United States intended, by its support of the contras, to coerce the Government of
Nicaragua in respect of matters in which each State is permitted, by the principle of State sovereignty, to
decide freely (see paragraph 205 above) ; and secondly that the intention of the contras themselves was to
overthrow the present Government of Nicaragua The Court considers that in international law, if one
State, with a view to the coercion of another State, supports and assists armed bands in that State whose
purpose is to overthrow the government of that State, that amounts to an intervention by the one State in
the internal affairs of the other, whether or not the political objective of the State giving such support and
assistance is equally far reaching.
The financial support, training, supply of weapons, intelligence and logistic support given by the
United States to the contras was a breach of the principle of non-interference. no such general right
of intervention, in support of an opposition within another State, exists in contemporary international
law, even if such a request for assistance is made by an opposition group of that State (see para 246
for more).
However, in a controversial finding, the Court held that the United States did not devise the strategy,
direct the tactics of the contras or exercise control on them in manner so as to make their acts
committed in violation of international law imputable to the United States (see in this
respect Determining US responsibility for contra operations under international law 81 AMJIL
86).T he Court concluded that a number of military and paramilitary operations of the contras were
decided and planned, if not actually by United States advisers, then at least in close collaboration with
them, and on the basis of the intelligence and logistic support which the United States was able to offer,
particularly the supply aircraft provided to the contras by the United States but not all contra
operations reflected strategy and tactics wholly devised by the United States.
In sum, the evidence available to the Court indicates that the various forms of assistance provided to the
contras by the United States have been crucial to the pursuit of their activities, but is insufficient to
demonstrate their complete dependence on United States aid. On the other hand, it indicates that in the
initial years of United States assistance the contra force was so dependent. However, whether the United
 States Government at any stage devised the strategy and directed the tactics of the contras depends on the
extent to which the United States made use of the potential for control inherent in that dependence. The
Court already indicated that it has insufficient evidence to reach a finding on this point. It is a fortiori
unable to determine that the contra force may be equated for legal purposes with the forces of the United
StatesThe Court has taken the view (paragraph 110 above) that United States participation, even if
preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras,
the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still
insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of
attributing to the United States the acts committed by the contras in the course of their military or
paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and
even the general control by the respondent State over a force with a high degree of dependency on it,
would not in themselves mean, without further evidence, that the United States directed or enforced the
perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such
acts could well be committed by members of the contras without the control of the United States. For this
conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that
that State had effective control of the military or paramilitary.
Interesting, however, the Court also held that providing humanitarian aid to persons or forces in
another country, whatever their political affiliations or objectives, cannot be regarded as unlawful
intervention, or as in any other way contrary to international law (para 242).
In the event one State intervenes in the affairs of another State, the victim State has a right to intervene
in a manner that is short of an armed attack (210).
While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a
lesser degree of gravity cannot as the Court has already observed (paragraph 21 1 above). produce any
entitlement to take collective countermeasures involving the use of force. The acts of which Nicaragua is
accused, even assuming them to have been established and imputable to that State, could only have
justified proportionate counter-measures on the part of the State which had been the victim of these acts,
namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third
State, the United States, and particularly could not justify intervention involving the use of force.
4. The United States breached its customary international law obligation not to violate the
sovereignty of another State when it directed or authorized its aircrafts to fly over Nicaraguan
territory and when it laid mines in the internal waters of Nicaragua and its territorial sea.
The ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of the
territorial sea or internal waters of Nicaragua by persons in the pay or acting ion the instructions of
the United States and acting under its supervision with its logistical support. The United States did not
issue any warning on the location or existence of mines and this resulted in injuries and increases in
maritime insurance rates.
The court found that the United States also carried out high-altitude reconnaissance flights over
Nicaraguan territory and certain low-altitude flights, complained of as causing sonic booms.
The basic concept of State sovereignty in customary international law is found in Article 2(1) of the UN
Charter. State sovereignty extends to a States internal waters, its territorial sea and the air space above
its territory. The United States violated customary international law when it laid mines in the territorial
sea and internal waters of Nicaragua and when it carried out unauthorised overflights over Nicaraguan
airspace by aircrafts that belong to or was under the control of the United States.
Overview: The case involved military and paramilitary activities conducted by, or with the assistance of,
the United States against Nicaragua from 1981 to 1984. Due to a multilateral treaty reservation of the
United States (hereinafter called the Vandenberg reservation), the Court was compelled to base its
findings only on customary and general principles of international law. As a result, the Nicaragua case
developed significant jurisprudence on clarifying customary international law on the use of force and
non-intervention, elements necessary to form customary international law and the relationship between
the latter and treaty law. Controversial aspects of the decision included the courts methodology used to
determine that the principle of non-intervention had attained customary law status, the courts reliance on
UN resolutions as a source of opinio juris and the courts reliance on multilateral treaties to determine
customary international law in face of the Vandenberg reservation.
The competence of the ICJ to give its determination based on customary international law
1. The United States when accepting the compulsory jurisdiction of the ICJ (under Article 36(2) of the ICJ
Statute) entered into the Vandenberg reservation. This reservation barred the ICJ from using certain
multilateral treaties in the adjudication of the dispute.
2. The United States held that this reservation barred the Court from determining the case even on the
basis of customary and general principles of international law because customary law provisions, on
which Nicaragua relied on, were identical to provisions in treaties sought to be excluded. Because of the
identical content, the United States argued, treaty provisions supervene and subsume the parallel
customary law provision (see below).
3. The Court disagreed. It held that multilateral treaty reservations could not preclude the Court from
determining cases relying customary international law because the latter exists independently of treaty
law.
NB: The United States disagreed with the Courts determination to proceed with the case and refused to
participate further, including at the merits stage (see the declaration made by the United States in this
regard). Although the Court was barred from resorting to multilateral treaties, it referred to the latter,
including the UN Charter, to identify the existence, nature and scope of various customary law principles.
Commentators criticised the Court for circumventing the multilateral reservation in this manner.
The relationship between treaty law and customary international law
4. As we noted before, the United States argued that when customary international law and treaty law
contain the same content; the treaty law subsumes and supervenes customary international law. In other
words, the existence of principles in the United Nations Charter precludes the possibility that similar
rules might exist independently in customary international law, either because existing customary rules
had been incorporated into the Charter, or because the Charter influenced the later adoption of customary
rules with a corresponding content (para 174).
5. In its response, the Court distinguished two situations:
(a) Situations where the customary law principles were identical to treaty provisions; and
(b) Situations where customary law and treaty law rights and obligations differed in respect of the same
subject matter.
6. In situations where customary law principles were identical to treaty provisions (reflected as (a) above),
the Court, quite correctly, disagreed with the view of the United States. It held that even if principles of
customary international law are codified into treaties, the former continues to exist side by side with the
latter. For treaty parties, both customary and treaty law apply and if, for some reason, the treaty ceases to
apply the identical customary law provision continues to apply between them unaffected (see more on
para 178).
7. The fact that customary international law exists alongside treaty law was an argument brought by
Norway and Denmark in the North Sea Continental Shelf Cases. In these cases, the two countries having
failed to attribute an obligation under Article 6 of the Geneva Conventions of 1958 to Germany, sought to
bind Germany via customary international law. In this case the Court determined that Article 6 neither
reflected customary law at the time of the codification, nor had it attained that status at the time of the
determination. In the Nicaragua case, the Court relied on the North Sea Continental Shelf Cases to
support the assertion that principles of customary international law can exist side by side with identical
treaty law provisions and the latter does not supervene the former in a manner where the former ceases to
exist (para 177).
8. The Court also relied on Article 51 of the UN Charter to show that a treaty itself can recognise the
existence of customary international law on the same subject matter. The term inherent in Article 51
recognised that customary law rights of self-defense existed alongside treaty provisions.
9. Rules containing the same content could be treated differently in customary international law and in
treaty law. For example, treaty law may contain institutions or mechanisms to ensure the effective
implementation of its provisions, including those that reflect customary law. One could take the Courts
reading of Article 51 as an example. A State that exercises the right of self-defence under Article 51,
according to the UN Charter, has an obligation to report the use of force immediately to the Security
Council. The Court held that this was a treaty requirement and one that did not exist under customary law.
Interestingly, although the failure to report did not result in a breach of customary international law, the
Court indicated that the United States failure to observe this requirement contradicted her claim to be
acting in self defence (see paras 200, 235).
10. The Court discussed situations where customary international law and treaty law provisions were not
identical (see point (b) above). For example, the Court referred to the fact that concepts such and necessity
and proportionality, or the definition of what constitutes an armed attack, are not found under Article 51,
or the UN Charter, but in customary law. The Court concluded that (1) this proves that customary
international law continues to exist alongside treaty law and that (2) areas governed by the two sources of
law do not (always) overlap and the rules do not (always) have the same content.
the Charter, having itself recognized the existence of this right (inherent customary law right of self-
defence under A. 51 of the UN Charter), does not go on to regulate directly all aspects of its content. For
example, it does not contain any specific rule whereby self-defence would warrant only measures which
are proportional to the armed attack and necessary to respond to it, a rule well established in customary
international law. Moreover, a definition of the armed attack which, if found to exist, authorises the
exercise of the inherent right of self-defence, is not provided in the Charter, and is not part of treaty law.
It cannot therefore be held that Article 51 is a provision which subsumes and supervenes customary
international law.
11. In case of a divergence between treaty law and customary international law, for the parties to the
treaty, amongst themselves, the treaty provisions apply as lex specialis. The courts support for this
principle can be found in paras 180 and 181. The Court, in conclusion, explained the relationship between
the UN Charter and customary international law in the following manner:
However, so far from having constituted a marked departure from a customary international law which
still exists unmodified, the Charter gave expression in this field (on the use of force and self defence) to
principles already present in customary international law, and that law has in the subsequent four decades
developed under the influence of the Charter, to such an extent that a number of rules contained in the
Charter have acquired a status independent of it. The essential consideration is that both the Charter and
the customary international law flow from a common fundamental principle outlawing the use of force in
international relations. The differences which may exist between the specific content of each are not, in
the Courts view, such as to cause a judgment confined to the field of customary international law to be
ineffective or inappropriate (to the parties of the Charter who are bound by the Charter) (text in brackets
added)(para 181).
The relationship between customary international law and jus cogens
13. The court cited material presented by Nicaragua, the United States and the International Law
Commission to argue that the prohibition on the use of force contained in Article 2(4) of the UN Charter
has attained the status of a jus cogens norm. The Court found this to be A further confirmation of the
validity as customary international law of the principle of the prohibition of the use of force expressed in
Article 2, paragraph 4, of the Charter of the United Nations (para 190).
The necessary elements to determine the existence of customary international law
14. The Court, similar to the North Sea Continental Shelf Case, considered both the subjective element
(opinio juris) and the objective element (State practice) as essential pre-requisites to the formation and
elucidation of a customary international law norm (para 207). The jurisprudence of the Nicaragua case
contained an important clarification inconsistent State practice does not affect the formation or
continued existence of a customary principle so long as the inconsistency is justified as a breach of the
rule.
It is not to be expected that in the practice of States the application of the rules in question should have
been perfect, in the sense that States should have refrained, with complete consistency, from the use of
force or from intervention in each others internal affairs.
The Court does not consider that, for a rule to be established as customary, the corresponding practice
must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary
rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such
rules, and that instances of State conduct inconsistent with a given rule should generally have been treated
as breaches of that rule, not as indications of the recognition of a new rule.
If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by
appealing to exceptions or justifications contained within the rule itself, then whether or not the States
conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to
weaken the rule. (para 186)
15. The Nicaragua jurisprudence explained how one could deduct opinio juris from acts of State. The
Court held that opinio juris could be deduced from:
the attitude of States towards certain General Assembly resolutions. For example, the Declaration on
Principles of International Law concerning Friendly Relations (hereafter called the Declaration on
Friendly Relations). The Court held that:
The effect of consent to the text of such resolutions cannot be understood as merely that of a reiteration
or elucidation of the treaty commitment undertaken in the Charter. On the contrary, it may be understood
as an acceptance of the validity of the rule or set of rules declared by the resolution by themselvesIt
would therefore seem apparent that the attitude referred to expresses an opinio juris respecting such rule
(or set of rules), to be thenceforth treated separately from the provisions, especially those of an
institutional kind, to which it is subject on the treaty-law plane of the Charter
Statements by State representatives.
Obligations undertaken by participating States in international forums (the Court provided the example
of the Conference on Security and Co-operation in Europe, Helsinki)
The International Law Commissions findings that a concept amounts to a customary law principle.
Multilateral conventions.
NB: The fact that the Court relied on resolutions of the United Nations to deduct opinio juris was subject
to criticism. As you know, opinio juris is the subjective element necessary to form customary law. Opinio
juris is reflected in instances where the State undertakes a particular practice because it believes that it is
legally bound to do so. Voting patterns in the United Nations are often guided by policy considerations
over legal merits. The General Assemblys subject matter is more policy oriented than legal (for which we
have the 6th Committee). For example, when the United States voted for the Friendly Relations
Declaration it stated on record its belief that the Declaration was only a statement of
political intention and not an expression of the law. This is not to say that provisions on General
Assembly Resolutions that guide the international community to act in a certain way may not eventually
become binding international law (either by attaining customary law status or becoming codified into
treaty law). It can, if there is adequate State practice and opinio juris. The argument is that opinio juris
cannot be said to exist based merely on a vote in favour of a non-binding resolution in the absence of an
examination of subsequent consistent and general State practice (which, in turn, reflects or confirms
opinio juris).
Customary international law relating to principles of non-intervention
16. The Court held that Principles such as those of the non-use of force (para 191), non-intervention
(para 192), respect for the independence and territorial integrity of States, right of collective self defence
(para 193) and the freedom of navigation, continue to be binding as part of customary international law,
despite the operation of provisions of conventional law in which they have been incorporated (text in
brackets added).
17. The Courts finding that principle of non-intervention formed a part of customary international law
invited criticism from commentators, partly because they disagreed that the principle formed customary
international law and partly because of the Courts own contradictions in coming to its conclusions and
inadequacy of analysis (see below). The Courts contradiction stems from this statement: The principle
of non-intervention involves the right of every sovereign State to conduct its affairs without outside
interference; though examples of trespass against this principle are not infrequent, the Court considers
that it is part and parcel of customary international law(emphasis added. Para 202).
18. The Court began its analysis with two questions: Notwithstanding the multiplicity of declarations by
States accepting the principle of non-intervention, there remain two questions: first, what is the exact
content of the principle so accepted, and secondly, is the practice sufficiently in conformity with it for this
to be a rule of customary international law? The first question was discussed in a previous post and will
not be discussed here.
18. Although the question seemed to direct the Court towards identifying an existing custom, in its
response the Court seemed to have already determined that the customary law prohibition of non-
intervention existed. In the following passage the Court deliberates if, in contrast, a customary law right to
intervention had evolved.
There have been in recent years a number of instances of foreign intervention for the benefit of forces
opposed to the government of another State. The Court is not here concerned with the process of
decolonisation It has to consider whether there might be indications of a practice illustrative of belief in
a kind of general right for States to intervene, directly or indirectly, with or without armed force, in
support of an internal opposition in another State, whose cause appeared particularly worthy by reason of
the political and moral values with which it was identified. For such a general right to come into existence
would involve a fundamental modification of the customary law principle of non-intervention. (paras
206, 207).
19. The Court went on to hold, as before, that for a new customary rule to be formed, not only must the
acts concerned amount to a settled practice, but they must be accompanied by the opinio juris sive
necessitates.
The significance for the Court of cases of State conduct prima facie inconsistent with the principle of
non-intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel
right or an unprecedented exception to the principle might, if shared in principle by other States, tend
towards a modification of customary international law. In fact however the Court finds that States have not
justified their conduct by reference to a new right of intervention or a new exception to the principle of its
prohibition. The United States authorities have on some occasions clearly stated their grounds for
intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies
of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these
were statements of international policy, and not an assertion of rules of existing international law.
20. The Court also noted that the United States has not sought to justify its intervention in Nicaragua on
legal grounds, but had only justified it at a political level. The United States had not asserted for itself
legal right of intervention in these circumstances. The Court, without further analysis into State practice,
almost immediately proceeded to find that no such general right of intervention, in support of an
opposition within another State, exists in contemporary international law. The Court concludes that acts
constituting a breach of the customary principle of non-intervention will also, if they directly or indirectly
involve the use of force, constitute a breach of the principle of non-use of force in international relations
(para 209).
Development of a parallel customary international law?
In addition to the comments made above in italics, another interesting aspect of the judgment is that it
sought to divorce customary international law obligation from the identical treaty obligation because of
the jurisdictional bar to consider multilateral treaties. In its consideration of customary international law it
developed certain principles independently of the treaty. For example, Article 2(4) of the UN Charter
prohibits the threat or use of force against another State. The Court held that the same prohibition on the
use of force could be found under customary international law and as a jus cogens norm. The Court then
went on to categorize the use of force under customary law as either a grave use of force (i.e. use of
force amounting to an armed attack) or a less grave use of force (i.e. use of force that falls short of an
armed attack for example, the threat to use force). The Court, then, restricted the right of self-defense to
a situation where there had been a grave use of force (or an armed attack, as defined by the Court). If one
were to hold that the relevant Charter principles were clear, precise and unambiguous, one could say this
divorced interpretation could result in customary law developing in a manner that is not in line with the
Charter and thereby creating separate rights/ regimes of law that govern the same subject matter. This is
because, then, the two regimes would be irreconcilable. However, the fact remains that the Charter does
leave room for interpretation for example, on the definition of an armed attack or on the use of force. In
cases of ambiguity, Article 31 of the Vienna Convention on the Law of Treaties directs us to look at, inter
alia, subsequent practice and any relevant rules of international law that maybe applicable. In other words,
a treaty can be interpreted with the assistance of customary and general principles of international law. In
this case, the development of customary law would also mean a potential development of ambiguous
treaty law and a reconciliation of treaty and customary law provisions.