Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v.

United States)

Brief Fact Summary. Nicaragua (P) brought a suit against the United States (D) on the ground
that the United States (D) was responsible for illegal military and paramilitary activities in and
against Nicaragua. The jurisdiction of the International Court of Justice to entertain the case as
well as the admissibility of Nicaraguas (P) application to the I.C.J. was challenged by the United
States (D).

Synopsis of Rule of Law. Nicaragua (P) brought a suit against the United States (D) on the
ground that the United States (D) was responsible for illegal military and paramilitary activities
in and against Nicaragua. The jurisdiction of the International Court of Justice to entertain the
case as well as the admissibility of Nicaraguas (P) application to the I.C.J. was challenged by the
United States (D).

Facts. The United States (D) challenged the jurisdiction of the I.C.J when it was held responsible
for illegal military and paramilitary activities in and against Nicaragua (P) in the suit the plaintiff
brought against the defendant in 1984. Though a declaration accepting the mandatory
jurisdiction of the Court was deposited by the United States (D) in a 1946, it tried to justify the
declaration in a 1984 notification by referring to the 1946 declaration and stating in part that
the declaration shall not apply to disputes with any Central American State.

Apart from maintaining the ground that the I.C.J lacked jurisdiction, the States (D) also argued
that Nicaragua (P) failed to deposit a similar declaration to the Court. On the other hand,
Nicaragua (P) based its argument on its reliance on the 1946 declaration made by the United
states (D) due to the fact that it was a state accepting the same obligation as the United
States (D) when it filed charges in the I.C.J. against the United States (D).

Also, the plaintiff intent to submit to the compulsory jurisdiction of the I.C.J. was pointed out by
the valid declaration it made in 1929 with the I.C.Js predecessor, which was the Permanent
Court of International Justice, even though Nicaragua had failed to deposit it with that court.
The admissibility of Nicaraguas (P) application to the I.C.J. was also challenged by the United
States (D).

Issue. (1) Is the jurisdiction to entertain a dispute between two states, if they both accept the
Courts jurisdiction, within the jurisdiction of the International Court of Justice?

(2) Where no grounds exist to exclude the application of a state, is the application of such a
state to the International Court of Justice admissible?

Held. (1) Yes. The jurisdiction of the Court to entertain a dispute between two states if each of
the States accepted the Courts jurisdiction is within the jurisdiction of the International Court
of Justice. Even though Nicaragua (P) declaration of 1929 was not deposited with the
Permanent Court, because of the potential effect it had that it would last for many years, it was
valid.

Thus, it maintained its effect when Nicaragua became a party to the Statute of the I.C.J because
the declaration was made unconditionally and was valid for an unlimited period. The intention
of the current drafters of the current Statute was to maintain the greatest possible continuity
between it and the Permanent Court. Thus, when Nicaragua (P) accepted the Statute, this
would have been deemed that the plaintiff had given its consent to the transfer of its
declaration to the I.C.J.

(2) Yes. When no grounds exist to exclude the application of a state, the application of such a
state to the International Court of Justice is admissible. The five grounds upon which the United
States (D) challenged the admissibility of Nicaraguas (P) application were that the plaintiff
failed because there is no indispensable parties rule when it could not bring forth necessary
parties, Nicaraguas (P) request of the Court to consider the possibility of a threat to peace
which is the exclusive province of the Security Council, failed due to the fact that I.C.J. can
exercise jurisdiction which is concurrent with that of the Security Council, that the I.C.J. is
unable to deal with situations involving ongoing armed conflict and that there is nothing
compelling the I.C.J. to decline to consider one aspect of a dispute just because the dispute has
other aspects due to the fact that the case is incompatible with the Contadora process to which
Nicaragua (P) is a party.

Discussion. Although the questions of jurisdiction and admissibility are primarily based on the
principle that the I.C.J. has only as much power as that agreed to by the parties, these can be
quite complicated. The 1946 declaration of the United States and the 1929 declaration of
Nicaragua was the main focus of the case on declaration and each of these declarations pointed
out the respective parties intent as it related to the I.C.Js jurisdiction.

Maritime Delimitation and Territorial Questions (Qatar v. Bahrain)

Brief Fact Summary. A claim to settle a dispute involving sovereignty over certain islands,
sovereign rights over certain shoals and delimitation of a maritime boundary was filed by Qatar
(P) in the International Court of Justice against Bahrain (D). The Courts jurisdiction was
however disputed by Bahrain (D).
Synopsis of Rule of Law. An international agreement creating rights and obligations can be
constituted by the signatories to the minutes of meetings and letters exchanged.

Facts. A dispute concerning sovereignty over certain islands and shoals, including the
delimitation of a maritime boundary were issues upon which Qatar (P) and Bahrain (D) sought
to resolve for 20 years. During this period of time, letters were exchanged and acknowledged
by both parties heads of state. A Tripartite Committee for the purpose of approaching the
International Court of Justice.. was formed by representatives of Qatar (P), Bahrain (D) and
Saudi Arabia. Though the committee met several time, it failed to produce an agreement on the
specific terms for submitting the dispute to the Court. Eventually, the meetings culminated in
Minutes, which reaffirmed the process and stipulated that the parties may submit the
dispute to the I.C.J. after giving the Saudi King six months to resolve the dispute. The Courts
jurisdiction was disputed by Bahrain (D) when Qatar (P) filed a claim in the I.C.J.

Issue. Yes. An international agreement creating rights and obligations can be constituted by the
signatories to the minutes of meetings and letters exchanged. Though Bahrain (D) argued that
the Minutes were only a record of negotiation and could not serve as a basis for the I.C.J.s
jurisdiction, both parties agreed that the letters constituted an international agreement with
binding force.

International agreements do not take a single form under the Vienna Convention on the Law of
Treaties, and the Court has enforced this rule in the past. In this case, the Minutes not only
contain the record of the meetings between the parties, it also contained the reaffirmation of
obligations previously agreed to and agreement to allow the King of Saudi Arabia to try to find a
solution to the dispute during a six-month period, and indicated the possibility of the
involvement of the I.C.J. The Minutes stipulated commitments to which the parties agreed,
thereby creating rights and obligations in international law. This is the basis therefore of the
existence of international agreement.

On the part of the Bahrains (D) Foreign Minister, he argued that no agreement existed because
he never intended to enter an agreement fails on the grounds that he signed documents
creating rights and obligations for his country. Also, Qatars (P) delay in applying to the United
Nations Secretariat does not indicate that Qatar (P) never considered the Minutes to be an
international agreement as Bahrain (D) argued. However, the registration and non-registration
with the Secretariat does not have any effect on the validity of the agreement.

Held. Yes. An international agreement creating rights and obligations can be constituted by the
signatories to the minutes of meetings and letters exchanged. Though Bahrain (D) argued that
the Minutes were only a record of negotiation and could not serve as a basis for the I.C.J.s
jurisdiction, both parties agreed that the letters constituted an international agreement with
binding force.

Discussion. There is no doubt that language plays a vital role in influencing a courts decision as
to whether an agreement has been entered into and in this particular case, the language was
the main focus of the I.C.J and it was the contents of the Minutes that persuaded the I.C.J. to
reject the Bahrain foreign ministers (D) claim that he did not intend to enter into an
agreement. Where this is compared to general U.S. contract law, where a claim by one of the
parties that no contract existed because there was no meeting of the minds might be the
ground upon which a U.S. court would consider whether a contract did exist with more care
and thought than the I.C.J. gave the foreign minister of Bahrains (D) claims.

Air France v. Saks

No. 83-1785

Argued January 15, 1985

Decided March 4, 1985

470 U.S. 392

Syllabus

Article 17 of the Warsaw Convention makes air carriers liable for injuries sustained by a
passenger

"if the accident which caused the damage so sustained took place on board the aircraft or in
the course of any of the operations of embarking or disembarking."

Respondent, while a passenger on petitioner's jetliner as it descended to land in Los Angeles on

a trip from Paris, felt severe pressure and pain in her left ear, and the pain continued after the
jetliner landed. Shortly thereafter, respondent consulted a doctor, who concluded that she had
become permanently deaf in her left ear. She then filed suit in a California state court, alleging
that her hearing loss was caused by negligent maintenance and operation of the jetliner's
pressurization system. After the case was removed to Federal District Court, petitioner moved
for summary judgment on the ground that respondent could not prove that her injury was
caused by an "accident" within the meaning of Article 17, the evidence indicating that the
pressurization system had operated in a normal manner. Relying on precedent that defines the
term "accident" in Article 17 as an "unusual or unexpected" happening, the District Court
granted summary judgment to petitioner. The Court of Appeals reversed, holding that the
language, history, and policy of the Warsaw Convention and the Montreal Agreement (a private
agreement among airlines that has been approved by the Federal Government) impose
absolute liability on airlines for injuries proximately caused by the risks inherent in air travel;
and that normal cabin pressure changes qualify as an "accident" within the definition contained
in Annex 13 to the Convention on International Civil Aviation as meaning "an occurrence
associated with the operation of an aircraft."

Held: Liability under Article 17 arises only if a passenger's injury is caused by an unexpected or
unusual event or happening that is external to the passenger, and not where the injury results
from the passenger's own internal reaction to the usual, normal, and expected operation of the
aircraft, in which case it has not been caused by an accident under Article 17. Pp. 470 U. S. 396-
408.

(a) The text of the Warsaw Convention suggests that the passenger's injury must be so caused.
The difference in the language of Article 17, imposing liability for injuries to passengers caused
by an "accident" and

Page 470 U. S. 393

Article 18, imposing liability for destruction or loss of baggage by an "occurrence," implies that
the drafters of the Convention understood the word "accident" to mean something different
than the word "occurrence." Moreover, Article 17 refers to an accident which caused the
passenger's injury, and not to an accident which is the passenger's injury. The text thus implies
that, however "accident" is defined, it is the cause of the injury that must satisfy the definition,
rather than the occurrence of the injury alone. And, since the Warsaw Convention was drafted
in French by continental jurists, further guidance is furnished by the French legal meaning of
"accident" -- when used to describe a cause of injury, rather than the event of injury -- as being
a fortuitous, unexpected, unusual, or unintended event. Pp. 397-400.

(b) The above interpretation of Article 17 is consistent with the negotiating history of the
Warsaw Convention, the conduct of the parties thereto, and the weight of precedent in foreign
and American courts. Pp. 470 U. S. 400-405.

(c) While any standard requiring courts to distinguish causes that are "accidents" from causes
that are "occurrences" requires drawing a line that may be subject to differences as to where it
should fall, an injured passenger is only required to prove that some link in the chain of causes
was an unusual or unexpected event external to the passenger. Enforcement of Article 17's
"accident" requirement cannot be circumvented by reference to the Montreal Agreement. That
Agreement, while requiring airlines to waive "due care" defenses under Article 20(1) of the
Warsaw Convention, did not waive Article 17's "accident" requirement. Nor can enforcement of
Article 17 be escaped by reference to the equation of "accident" with "occurrence" in Annex 13,
which, with its corresponding Convention, expressly applies to aircraft accident investigations,
and not to principles of liability to passengers under the Warsaw Convention. Pp. 470 U. S. 405-
408.

724 F.2d 1383, reversed and remanded.

Fisheries Jurisdiction (United Kingdom v. Iceland)

Brief Fact Summary. Because some circumstances changed, Iceland (D) claimed that a fishing
treaty it had with the United Kingdom (P) was no longer applicable.

Synopsis of Rule of Law. In order that a change of circumstances may give rise to the premise
calling for the termination of a treaty, it is necessary that it has resulted in a radical
transformation of the extent of the obligations still to be performed.

Facts. Icelands (D) claim to a 12-mile fisheries limit was recognized by the United Kingdom (P)
in 1961 in return for Icelands (D) agreement that any dispute concerning Icelandic fisheries
jurisdiction beyond the 12-mile limit be referred to the International Court of Justice. An
application was filed before the I.C.J. when Iceland (D) proposed to extend its exclusive fisheries
jurisdiction from 12 to 50 miles around its shores in 1972. By postulating that changes in
circumstances since the 12-mile limit was now generally recognized was the ground upon which
Iceland (D) stood to argue that the agreement was no longer valid. Iceland (D) also asserted
that there would be a failure of consideration for the 1961 agreement.

Issue. In order that a change of circumstances may give rise to a ground for invoking the
termination of a treaty, is it necessary that it has resulted in a radical transformation of the
extent of the obligation still to be performed?

Held. Yes. In order that a change of circumstances may give rise to the premise calling for the
termination of a treaty, it is necessary that it has resulted in a radical transformation of the
extent of the obligations still to be performed.

The change of circumstances alleged by Iceland (D) cannot be said to have transformed
radically the extent of the jurisdictional obligation that was imposed in the 1961 Exchange of
Notes.

Discussion. Recourse to the I.C.J. in the event of a dispute was the original agreement between
the parties. The economy of Iceland (D) is dependent on fishing. The merit of Iceland (D)
argument was not reached by the Court in this case, however, but rather dealt with the
jurisdictional issues.
Advisory Opinion on Namibia

Brief Fact Summary. Under a claim of right to annex Namibia, South Africa occupied its territory
in violation of a United Nations (U.N.) Security Council Mandate which though later terminated
due to South Africas breach, empowered the Security Council to enforce its terms.

Synopsis of Rule of Law. Member States of the United Nations are bounded by its mandates
and violations or breaches results in a legal obligation on the part of the violator to rectify the
violation and upon the other Member States to recognize the conduct as a violation and to
refuse to aid in such violation.

Facts. Under a claim of right to annex the Namibian territory and under the claim that
Namibias nationals desired South Africas (D) rule, South Africa (D) began the occupation of
Namibia. South Africa was subject to a U.N. Mandate prohibiting Member States from taking
physical control of other territories because it was a Member State of the United Nations.

The Resolution 2145 (XXI) terminating the Mandate of South Africa (D) was adopted by the U.N
and the Security Council adopted Resolution 276 (1970) which declared the continuous
presence of South Africa (D) in Namibia as illegal and called upon other Member States to act
accordingly. An advisory opinion was however demanded from the International Court of
Justice.

Issue. Are mandates adopted by the United Nations binding upon all Member States so as to
make breaches or violations thereof result in a legal obligation on the part of the violator to
rectify the violation and upon other Member States to recognize the conduct as a violation and
to refuse to aid in such violations?

Held. Yes. Member States of the United Nations are bounded by its mandates and violations or
breaches results in a legal obligation on the part of the violator to rectify the violation and upon
the other Member States to recognize the conduct as a violation and to refuse to aid in such
violation. As Member States, the obligation to keep intact and preserve the rights of other
States and the people in them has been assumed.
So when a Member State does not toll this line, that State cannot be recognized as retaining the
rights that it claims to derive from the relationship. In this particular case, the General Assembly
discovered that South Africa (D) contravened the Mandate because of its deliberate actions and
persistent violations of occupying Namibia.

Hence, it is within the power of the Assembly to terminate the Mandate with respect to a
violating Member State, which was accomplished by resolution 2145 (XXI) in this case. The
resolutions and decisions of the Security Council in enforcing termination of this nature are
binding on the Member States, regardless of how they voted on the measure when adopted.
South Africa (D) is therefore bound to obey the dictates of the Mandate, the resolution
terminating it as to South Africa (D), and the enforcement procedures of the Security Council.

Once the Mandate has been adopted by the United Nations, it becomes binding upon all
Member States and the violations or breaches of this Mandate result in legal obligations on the
part of the violator to rectify the violation, and upon the other Member States to recognize the
conduct as a violation and to refuse to aid in such violation.

Discussion. Despite agreeing to restore independence to Namibia with the United Nations,
South Africa (D) did not. A number of mandatory sanctions for enforcement were now adopted
by the General Assembly and the action of South Africa (D) was strongly condemned.

Gabcikovo-Nagymaros Project (Hungary/Slovakia)

Brief Fact Summary. Hungary (P) claimed that Czechoslovakia (D) violated the provisions of a
treaty when it appropriated the waters of the Danube River to construct a dam.

Synopsis of Rule of Law. Watercourse states shall participate in the use, development and
protection of an international watercourse in an equitable and reasonable manner.

Facts. In 1977, Hungary (P) and Czechoslovakia (D) signed a Treaty for the construction of dams
and other projects along the Danube River that bordered both nations. Czechoslovakia (D)
began work on damming the river in its territory when Hungary (P) stopped working on the
project and negotiation could not resolve the matter which led Hungary (P) to terminate the
Treaty. Hungary (P) based its action on the fact that the damming of the river had been agreed
to only on the ground of a joint operation and sharing of benefits associated with the project,
to which Czechoslovakia (D) had unlawfully unilaterally assumed control of a shared resource.

Issue. Shall watercourse states participate in the use, development and protection of an
international watercourse in an equitable and reasonable manner?
Held. Yes. Watercourse states shall participate in the use, development and protection of an
international watercourse in an equitable and reasonable manner. Hungary (P) was deprived of
its rights to an equitable and reasonable share of the natural resources of the Danube by
Czechoslovakia (D) and also failed to respect the proportionality that is required by
international law. Cooperative administration must be reestablished by the parties of what
remains of the project.

Discussion. The Courts decision was that the joint regime must be restored. In order to achieve
most of the Treatys objectives, common utilization of shared water resources was necessary.
Hence, the defendant was not authorized to proceed without the plaintiffs consent.

Due Process

Secretary of Justice vs. Lantion, GR 139465 (Jan. 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.