1. North Sea Continental Shelf Cases: Germany vs. Denmark and the i) in proportion to the length of its sea-frontage.

Netherlands b) Germany argued that the principle of equidistance was neither a

mandatory rule in delimitation of the continental shelf nor a rule of
Petitioner/s: Germany
customary international law that was binding on Germany.
Respondent/s: Denmark and the Netherlands
Issue:
WoN Germany is under a legal obligation to accept the equidistance-special circumstances
Doctrine:
principle, contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958,
Test to determine the existence of Opinio Juris:
either as a customary international law rule or on the basis of the Geneva Convention --
a. It must be of a fundamentally norm-creating character such as one regarded
NEITHER, Germany is not legally obliged under both.
as forming the basis of a general rule of law,
Ratio:
b. The States must conform to it because they feel a legal obligation to do so,
1) ON ARTICLE 6 of the Geneva Convention on the Continental Shelf of 1958 (you
and
can read just the items in bold, because this is more on Treaty Law)
a) Article 6 of the Geneva Convention stated that unless the parties had
c. Time
already agreed on a method for delimitation or unless special
circumstances exist, the equidistance method would apply.
Facts: i) Germany had signed, but not ratified, the Geneva
1) The dispute in this case pertains to the delimitation of the continental shelf Convention, while Netherlands and Denmark were parties to the
between Germany and Denmark, and between Germany and the Netherlands. Convention.
2) The parties, in filing this petition, asked the Court to state the principles and rules b) PCIJ: Only a ‘very definite very consistent course of conduct on the
of international law that is applicable, and thereafter carry out the delimitation on part of a State would allow the Court to presume that the State had
that basis. somehow become bound by a treaty (by a means other than in the
3) According to Denmark and the Netherlands, the equidistant-special formal manner: i.e. ratification) when the State was ‗at all times fully able
1
circumstances principle in Art. 6(2) of the 1958 Geneva Convention on the and entitled to…‘ accept the treaty commitments in a formal manner.
Continental Shelf should be applied. i) The Court held that Germany had not unilaterally assumed
a) The effect of this is that Germany would get a smaller portion. obligations under the Convention.
i) Because Germany‘s coastline is concave (meaning its coastline ii) The court also took notice of the fact that even if Germany
is way farther inland than Denmark‘s and the Netherlands‘) ratified the treaty, she had the option of entering into a
4) Denmark and Netherlands argue that the configuration of the German North Sea reservation on Article 6, following which that particular article
coast did not constitute, for either of the two boundary lines concerned, a special would no longer be applicable to Germany
circumstance; (1) (in other words, even if one were to assume that
a) Hence, it is only proper to apply the equidistant principle. Germany had intended to become a party to the
5) Meanwhile, Germany argues that what should apply is the doctrine of just and Convention, it does not presuppose that it would have
equitable share also undertaken those obligations contained in Article
a) Where each of the States concerned would have a ―just and equitable 6).
share‖ in the available continental shelf, c) The Court held that the existence of a situation of estoppel would have
allowed Article 6 to become binding on Germany – but held that
Germany’s action did not support an argument for estoppel.
1
2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary i) The Court also held that the mere fact that Germany may not
of the continental shelf shall be determined by agreement between them. In the absence of agreement,
have specifically objected to the equidistance principle as
and unless another boundary line is justified by special circumstances, the boundary shall be
determined by application of the principle of equidistance from the nearest points of the baselines from contained in Article 6, is not sufficient to state that the
which the breadth of the territorial sea of each State is measured. principle is now binding upon it.

1 | PIL 2D
 d) In conclusion, the Court held that Germany had not acted in any
manner so as to incur obligations contained in Article 6 of the
Geneva Convention.
i) The equidistance–special circumstances rule was not binding
on Germany by way of treaty law.
2) ON ARTICLE 6 BEING ALREADY PART OF CUSTOMARY INTERNATIONAL
LAW (Important part)
a) To decide if the equidistance principle bound Germany by way of
customary international law, the Court examined:
i) the status of the principle contained in Article 6 as it stood when
the Convention was being drawn up; and
ii) its status after the Convention came into force.
b) Rulings:
i) On status of Article 6 when it was being drawn up:
(1) The Court held that 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.
(2) The Court supported this finding based on
(a) The hesitation expressed by the drafters of the
Convention, the International Law
Commission, on the inclusion of Article 6 into
the Convention and
(b) The fact that reservations to Article 6 was
permissible under the Convention.
ii) On status of Article 6 after the Convention came into force:
(1) For a customary rule to emerge the Court held that it
needed:
(a) Very widespread and representative
participation in the Convention, including
States whose interests were specially affected
(in this case, they were coastal States)
(i) (i.e. generality); and
(b) Virtually uniform practice (i.e. consistent and
uniform usage) undertaken in a manner that
demonstrates
(c) A general recognition of the rule of law or legal
obligation (i.e. opinio juris).
● In this case the court held that the
passage of a considerable period
of time was unnecessary (i.e.
duration) for the formation of a
customary law.
c) Customary Rule Requisites (Widespread and Representative
Participation; Duration; and Opinio Juris)
i) Widespread and Representative Participation
(1) The Court held that the first criteria was not met.
(2) The number of ratifications and accessions to the
Convention (39 States) were not adequately
representative or widespread.
ii) Duration
(1) The Court held that the duration taken for a customary
law rule to emerge is not as important as widespread
and representative participation, uniform usage,
and the existence of an opinio juris.
(2) It held that:
(a) “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.”
iii) Opinio Juris
(1) Opinio juris is reflected in acts of States or in omissions.
(a) In so far as those acts or omissions were done
following a belief that the said State is
obligated by law to act or refrain from acting in
a particular way.
(2) The Court examined 15 cases where States had
delimited their boundaries using the equidistance
method, after the Convention came into force.
(a) The Court concluded that even if there were
some State practice in favor of the
equidistance principle, the Court could not
2 | PIL 2D
 deduct the necessary opinio juris from this
State practice.
(b) 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.
(i) This is consistent with Article 38 (1)
(b) of the Statute of the ICJ.
(c) The Court explained 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.”

Dispositive:

The Court concluded that the equidistance principle was not binding on Germany by way of
treaty or customary international law. 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.

NOTE:

The Court was not asked to delimit because the parties had already agreed to delimit the
continental shelf as between their countries, by agreement, after the determination of the
Court on the applicable principles.

3 | PIL 2D

2. The Lotus Case: France vs. Turkey
Petitioner/s: France: Basdevant, Professor at the Faculty of Law of Paris
Respondent/s: Turkey: His Excellency Mahmout Essat Bey, Minister of
Justice
Doctrine:
SEE DISPOSTIVE
Facts:
● A collision occurred on the high seas between a French vessel – Lotus – and a
Turkish vessel – Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals
on board the Turkish vessel.
● The 10 survivors of the Boz-Kourt (including its captain, Hassen Bey) were taken
to Turkey on board the Lotus.
● In Turkey, Monsieur Demons and Hassen Bey were arrested without notice to the
French Consul-General.
● This arrest, which has been characterized by the Turkish Agent as arrest pending
trial (arrestation preventive), was effected in order to ensure that the criminal
prosecution instituted against the two officers, on a charge of manslaughter, by the
Public Prosecutor of Stamboul, on the complaint of the families of the victims of the
collision, should follow its normal course.
● The officer on watch of the Lotus (Monsieur Demons), and the captain of the
Turkish ship (Hassen Bey) were charged with manslaughter.
● Monsieur Demons, a French national, was sentenced to 80 days of imprisonment
and a fine.
● The French government protested, demanding the release of Demons or the
transfer of his case to the French Courts.
● Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent
Court of International Justice (PCIJ).
Issue:
● Does a rule of international law which prohibits a state from exercising criminal
jurisdiction over a foreign national who commits acts outside of the state‘s national
jurisdiction exist? – NO.
Ratio:
General Principles (JUST A BACKGROUND)
A State cannot exercise its jurisdiction outside its territory unless an international
treaty or customary law permits it to do so.
● The Court stated: ―Now the first and foremost restriction imposed by international
law upon a State is that – failing the existence of a permissive rule to the contrary –
it may not exercise its power in any form in the territory of another State.
● In this sense, jurisdiction is certainly territorial; it cannot be exercised by a State
outside its territory except by virtue of a permissive rule derived from international
custom or from a convention.‖
Within its territory, a State may exercise its jurisdiction, in any matter, even if there is
no specific rule of international law permitting it to do so.
In these instances, States have a wide measure of discretion, which is only limited by
the prohibitive rules of international law.
● The Court stated that: ―It does not, however, follow that international law prohibits a
State from exercising jurisdiction in its own territory, in respect of any case which
relates to acts which have taken place abroad, and in which it cannot rely on some
permissive rule of international law.
● Such a view would only be tenable if international law contained a general
prohibition to States to extend the application of their laws and the jurisdiction of
their courts to persons, property and acts outside their territory, and if, as an
exception to this general prohibition, it allowed States to do so in certain specific
cases.
● But this is certainly not the case under international law as it stands at present.
● Far from laying down a general prohibition to the effect that States may not extend
the application of their laws and the jurisdiction of their courts to persons, property
and acts outside their territory, it leaves them in this respect a wide measure of
discretion, which is only limited in certain cases by prohibitive rules; as regards
other cases, every State remains free to adopt the principles which it regards as
best and most suitable.
● This discretion left to States by international law explains the great variety of rules
which they have been able to adopt without objections or complaints on the part of
other States
● In these circumstances all that can be required of a State is that it should not
overstep the limits which international law places upon its jurisdiction; within these
limits, its title to exercise jurisdiction rests in its sovereignty.
● This applied to civil and criminal cases.
● If the existence of a specific rule was a pre-requisite to exercise jurisdiction, the
Court argued, then ―it would… in many cases result in paralysing the action of the
4 | PIL 2D
 courts, owing to the impossibility of citing a universally accepted rule on which to
support the exercise of their [States‘] jurisdiction‖
● The Court based this finding on the sovereign will of States.
● It held: ―International law governs relations between independent States. The rules
of law binding upon States therefor emanate from their own free will as expressed
in conventions or by usages generally accepted as expressing principles of law
and established in order to regulate the relations between these co-existing
independent communities or with a view to the achievement of common aims.
Restrictions upon the independence of States cannot therefore be presumed‖
Criminal Jurisdiction: Territorial Jurisdiction (IMPORTANT)
Dispositive:
● France alleged that the flag State of a vessel has exclusive jurisdiction over
offences committed on board the ship in high seas.
● The Court disagreed.
● It held that France, as the flag State, did not enjoy exclusive territorial jurisdiction in
the high seas in respect of a collision with a vessel carrying the flag of another
State (paras 71 – 84).
● Turkey and France both have jurisdiction in respect of the whole incident: in other
words, there was concurrent jurisdiction.
● The Court held that a ship in the high seas is assimilated to the territory of the flag
State.
● This State may exercise its jurisdiction over the ship, in the same way as it
exercises its jurisdiction over its land, to the exclusion of all other States.
● In this case, the Court equated the Turkish vessel to Turkish territory.
● The Court held: ―… offence produced its effects on the Turkish vessel and
consequently in a place assimilated to Turkish territory in which the application of
Turkish criminal law cannot be challenged, even in regard to offences committed
there by foreigners.‖ The Court concluded that Turkey had jurisdiction over this
case.
● It further said: ―If, therefore, a guilty act committed on the high seas produces its
effects on a vessel flying another flag or in foreign territory, the same principles
must be applied as if the territories of two different States were concerned, and the
conclusion must therefore be drawn that there is no rule of international law
prohibiting the State to which the ship on which the effects of the offence have
taken place belongs, from regarding the offence as having been committed in its
territory and prosecuting, accordingly, the delinquent.‖
● The Lotus Case is also significant in that the Court said that a State would have
territorial jurisdiction, even if the crime was committed outside its territory, so long
as a constitutive element of the crime was committed in that State.
● Subjective Territorial Jurisdiction
- In order for subjective territorial jurisdiction to be established, one must
prove that the element of the crime and the actual crime are entirely
inseparable: in other words, if the constituent element was absent – the
crime would not have happened.
● The Court said: ―The offence for which Lieutenant Demons appears to have been
prosecuted was an act – of negligence or imprudence – having its origin on board
the Lotus, whilst its effects made themselves felt on board the Boz-Kourt. These
two elements are, legally, entirely inseparable, so much so that their separation
renders the offence non-existent… It is only natural that each should be able to
exercise jurisdiction and to do so in respect of the incident as a whole. It is
therefore a case of concurrent jurisdiction.‖
● A rule of international law, which prohibits a state from exercising criminal
jurisdiction over a foreign national who commits acts outside of the state‘s national
jurisdiction, does not exist.
● Failing the existence of a permissive rule to the contrary (see par. above) is the
first and foremost restriction imposed by international law on a state and it may not
exercise its power in any form in the territory of another state.
● This does not imply that international law prohibits a state from exercising
jurisdiction in its own territory, in respect of any case that relates to acts that have
taken place abroad which it cannot rely on some permissive rule of international
law.
● In this case, it is impossible to hold that there is a rule of international law that
prohibits Turkey from prosecuting Demons because he was aboard a French ship.
● This stems from the fact that the effects of the alleged offense occurred on a
Turkish vessel.
● Hence, both states here may exercise concurrent jurisdiction over this matter
because there is no rule of international law in regards to collision cases to the
effect that criminal proceedings are exclusively within the jurisdiction of the state
whose flag is flown.
5 | PIL 2D
 3.Nuclear Test Cases: Australia vs. France (INCLUDE ISSUES FOR MODULES
3 AND 4) Taken from Pamana
NEW ZEALAND VS. FRANCE; AUSTRALIA VS. FRANCE [NUCLEAR TESTS] (ARIELLE)
December 20, 1974| ICJ | Treaties
PETITIONER: New Zealand, Australia RESPONDENTS: France
SUMMARY: In these two cases, Australia and New Zealand applied to the ICJ
to enjoin France from conducting nuclear tests at the South Pacific region.
Before the case could be completed, France made open declarations that it
will cease to conduct nuclear tests, so it moved for the dismissal of the case.
The Court held in this case that since France has already made a unilateral
declaration of not conducting nuclear tests anymore, the dispute has already
disappeared so there is no more need for a judgment. Moreover, once the
Court has found that a State has entered into a commitment concerning a
future conduct, it is not the Court‘s function to contemplate that it will not
comply with it.
DOCTRINE: A declaration made through unilateral acts may have the effect of
creating legal obligations.
FACTS:
[New Zealand vs. France]
● In its judgment in the case concerning Nuclear Tests, the Court found that the
claim of New Zealand no longer had any object and that the Court was not called
upon to give a decision.
● Before turning to the questions of jurisdiction, the Court has to first consider
whether there is a dispute and to analyze the claim submitted to it.
● On December 20, 1974, the Court made two Orders regarding applications
submitted by the Government of Fiji for permission to intervene in the two cases
concerning Nuclear Tests.
● On May 9, 1973, New Zealand instituted proceedings against France in respect of
French atmospheric nuclear tests in the South Pacific. New Zealand relied on the
General Act for the Pacific Settlement of International Disputes conclude at
Geneva.
● France then stated that it considered that the Court was not competent in the case,
and that it could not accepts its jurisdiction.
● New Zealand having requested the Court to indicate interim measures of
protection, the Court indicated that France should avoid nuclear tests causing the
deposit of radio-active-fall-out on the territory of New Zealand.
● However, New Zealand reported several series of atmospheric tests that took
place.
● New Zealand submitted that the Court had jurisdiction and that the application was
admissible. France did not file any counter-memorial and was not represented at
the hearings.
● The case concerns the jurisdiction of the Court and the admissibility of the
application. In such questions, the Court is entitled to go into other questions which
may not be strictly capable of classification as matters of jurisdiction or
admissibility but are of such nature as to require examination.
● In its application, Australia asks the Court to adjudge and declare that the carrying
out of further atmospheric nuclear weapon tests in the South Pacific Ocean is not
consistent with applicable rules of international law, and to order that the French
shall not carry out any further tests.
● New Zealand, on the other hand, asks the Court to adjudge and declare that the
conduct by the French Government of nuclear tests in the South Pacific Region is
a violation of New Zealand‘s rights under international law.
● It is essential to consider whether the applicant requests a judgment which would
only state the legal relationship between the parties or a judgment requiring one of
the parties to take, or refrain from taking, some action.
● The Court has the power to interpret the submissions of the parties. In the present
case, if account is taken as as a whole, the diplomatic exchanges between the
parties, it becomes evident that the applicant‘s original and ultimate objective was
to obtain a termination of French atmospheric nuclear tests in the South Pacific.
● In these circumstances, the Court is bound to take note of further developments,
like the statements by French authorities.
● It is essential to consider whether the applicant requests a judgment which would
only state the legal relationship between the parties or a judgment requiring one of
the parties to take or refrain from doing an action.
ISSUE/s:
1. WoN the ICJ can decide on this case – NO because the dispute already disappeared.
2. WoN a declaration made through a unilateral act have an effect of creating legal
obligations – YES
RULING: The claim no longer has any object and therefore the Court is not called upon to
give a decision thereon.
RATIO:
1. In the present case, if account is taken of the application as a whole, the diplomatic
exchanges between the parties reveal that the applicant‘s main objective is to
obtain a termination of French atmospheric nuclear tests in the South Pacific.
2. The Court is then bound to take note of prior and and subsequent oral
proceedings.
3. France has expressed that in view of the stage reached in carrying out its nuclear
defense programme, France will be in a position to pass on to the stage of
underground explosions as soon as the series of tests planned for this summer is
6 | PIL 2D
 completed. (In short, France said that they will stop the nuclear tests as soon as 2. Before the case could be completed, France made declarations and announced
the tests for the summer are completed.) that it had completed the test and did not plan to conduct further tests. France
4. It is well recognized that declarations made by way of unilateral acts, may moved for the dismissal of the application.
have the effect of creating legal obligations. The intention of being bound is 3. France‘s declaration may have the effect of creating legal obligations. The
to be ascertained by an interpretation of the act. statement made by the President of France must be held to constitute and
5. The binding character of the undertaking results from the terms of the act and is engagement of the State in regard to the circumstances and intention with which
based on good faith. Interested states are entitled to require that the obligation be they were made.
respected. 4. The unilateral statements made by French authorities were first relayed to the
6. New Zealand, while recognizing the possibility of the dispute being resolved by a government of Australia. There was no need for the statements to be directed to
unilateral declaration on the part of France, has stated that the possibility of further any particular state for it to have legal effect. The general nature and
atmospheric tests has been left open. characteristics of the statements alone were relevant for evaluation of their legal
7. The Court must, however, from its own view of the meaning and scope intended to implications.
be given to these unilateral declarations.
8. France has conveyed to the world at large its intention to terminate
atmospheric tests.
9. It was bound to assume that other States might take note of these
statements and rely on their being effective. It is true that France has not
recognized that it is bound by any rule of international law to terminate its tests, but
this does not affect the legal consequences of the statements in question.
10. The Court finds that France has undertaken the obligation to hold no further
nuclear tests in the atmosphere in the South Pacific.
11. New Zealand sought an assurance from France that the tests would cease and
France has made statements to the effect that they will stop.
12. The Court concludes that France has assumed an obligation as to conduct,
concerning the effective cessation of the tests, and the fact that New Zealand
has not exercised its right to discontinue the proceedings does not prevent
the Court from making its own findings.
13. As a court of law, it is called upon to resolve existing disputes between States:
these disputes must continue to exist at the time when the Court makes its
decision.
14. In the present case, the dispute having disappeared, the claim no longer has
any object and there is nothing on which to give judgment.
15. Once the Court has found that a State has entered into a commitment concerning
a future conduct, it is not the Court‘s function to contemplate that it will not comply
with it.
16. For these reasons, the Court finds that the claim no longer has any object and that
it is therefore not called upon to give a decision thereon.
[Australia vs. France]
1. A series of nuclear tests were completed by France in the South Pacific, which
made Australia, together with New Zealand, apply to the ICJ demanding that
France cease the test.

7 | PIL 2D
 4. Nicaragua vs. US
Petitioner/s: Nicaragua
Respondent/s: US
ISSUE/s:
Doctrine:
To deduce the existence of customary rules, the conduct of the 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
RATIO:
For a new customary rule to be formed, acts concerned must amount to a
settled practice accompanied by opinio juris sive necessitatis is necessary
Consent to General Assembly resolutions of UN by the parties is one of the
forms of expression of an opinio juris with regard to the principle of non-use of
force which the US breached.
FACTS:
● In 1979 the Government of President Somoza collapsed following an armed
opposition led by the Frente Sandinista de Liberacibn Nacional (FSLN)
● FSLN – began to meet armed opposition from supporters of the former Somoza
Government and ex-members of the National Guard
● 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 1981, US terminated its aid to Nicaragua and in September 1981, according to
Nicaragua, the United States ―decided to plan and undertake activities directed
against Nicaragua‖
● Armed opposition to the new Government was conducted mainly by Fuerza
Democratica Nicaragüense (FDN) and Alianza Revolucionaria Democratica
(ARDE)
● United States officially acknowledged its support (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 some attacks were carried out by United States
military – with the aim to overthrow the Government of Nicaragua.
● United States did not appear before the ICJ at the merit stages, after refusing to
accept the ICJ‘s jurisdiction to decide the case
● United States relied on an inherent right of collective self-defense 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 Nicaragua‘s
alleged acts aggression against those countries
● WoN the US breached 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 encourage, supported and aided the military and paramilitary
activities against Nicaragua - YES
● 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 prohibition on the use of force is found in Article 2(4) of the UN Charter and in
customary international law. 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
● United States could not justify its military and paramilitary activities on the basis of
collective self- defense.
● 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
● When a state claims that it used force in collective self-defense, the Court would
look into two aspects: a) Whether the circumstances required for the exercise of
self-defense existed and b.) Whether the steps taken by the State, which was
acting in self-defense, corresponds to the requirements of international law (i.e. did
it comply with the principles of necessity and proportionality)
● 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-defense – at the time when the United States was
allegedly acting in collective self- defense; 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-defense.
● The criteria with regard to necessity and proportionality, that is necessary when
using force in self-defense was also not fulfilled.
- Laying of mines in early 1984 and certain attacks on Nicaraguan ports, oil
installations and naval bases, imputable to the United States constitute
infringements of this principle, unless justified by circumstances, which exclude
their unlawfulness. It also considers that the United States has committed a prima
8 | PIL 2D
 facie violation of the principle by arming and training the contras, unless this can
be justified as an exercise of the right of self-defence.
- It does not consider that military manoeuvres held by the United States near the
Nicaraguan borders, or the supply of funds to the contras, amounts to a use of
force.
● 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 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.
● State sovereignty extends to a State‘s internal waters, its territorial sea and the air
space above its territory. The States violated customary international law when it
laid mines in the territorial sea and internal waters of Nicaragua and when it carried
out unauthorized flights over Nicaraguan airspace by aircrafts that belong to or was
under the control of the United States. It recalls to both Parties to the present case
the need to co-operate with the Contadora efforts in seeking a definitive and lasting
peace in Central America, in accordance with the principle of customary
international law that prescribes the peaceful settlement of international disputes,
also endorsed by Article 33 of the United Nations Charter.

RULING: The Court is requested to adjudge and declare that compensation is due to
Nicaragua, the quantum thereof to be fixed subsequently, and to award to Nicaragua the
sum of 370.2 million US dollars as an interim award.

9 | PIL 2D
Dissenting Opinion of Judge Tanaka in the South-West Africa Cases -chang
Petitioner/s: Ethiopia and Liberia
Respondent/s: South Africa
Doctrine: The norm of non-discrimination or non-separation on the basis of
race has become a rule of customary international law because resolutions,
declarations, etc, on the same matter and organizations took place repeatedly.
Facts:
[Background of the case to which this dissent is addressed:]
● On 4 November 1960, Ethiopia and Liberia (Applicants), as former State Members
of the League of Nations, instituted separate proceedings against South Africa
(Respondent) in a case concerning the continued existence of the League of
Nations‘ Mandate for South West Africa and the duties and performance of South
Africa as mandatory Power.
● The applicants submit that: "Respondent, by laws and regulations, and official
methods and measures, which are set out in the pleadings herein, has practised
apartheid, i.e., has distinguished as to race, colour, national or tribal origin in
establishing the rights and duties of the inhabitants of the Territory; that such
practice is in violation of its obligations as stated in Article 2 of the Mandate
and Article 22 of the Covenant of the League of Nations; and that Respondent has
the duty forthwith to cease the practice of apartheid in the Territory;"
● Respondent contends, the mandate agreement does not stipulate equality
before the law clause, and that this clause does not formally constitute a part of
the mandate instrument.
● Nevertheless, the equality principle, as an integral part of the Charter of the United
Nations or as an independent source of general international law, can be directly
applied to the matter of the Mandate either as constituting a kind of law of the
Mandate in sensu lato or, at least in respect of standards, as a principle of
interpretation of the mandate agreement.
● This is justified only on the presupposition that the Respondent is bound by the
Charter of the United Nations not only as a member State but also as a Mandatory.
Issue: W/N resolutions and declarations of international organs can be recognized as a
factor in the custom-generating process as "evidence of a general practice". YES!
Ratio:
● The Applicants enumerate resolutions and declarations of international organs
which condemn racial discrimination, segregation, separation and apartheid, and
contend that the said resolutions and declarations were adopted by an
overwhelming majority, and therefore have binding power in regard to an
opposing State, namely the Respondent.
● Concerning the question whether the consent of all States is required for the
creation of a customary international law or not, we consider that the answer must
be in the negative for the reason that Article 38, paragraph 1 (b), of the Statute
does not exclude the possibility of a few dissidents for the purpose of the creation
of a customary international law and that the contrary view of a particular State or
States would result in the permission of obstruction by veto, which could not have
been expected by the legislator who drafted the said Article.
● In former days, practice, repetition and opinio juris sive necessitatis, which are the
ingredients of customary law might be combined together in a very long and slow
process extending over centuries. In the contemporary age of highly developed
techniques of communication and information, the formation of a custom through
the medium of international organizations is greatly facilitated and accelerated; the
establishment of such a custom would require no more than one generation or
even far less than that. This is one of the examples of the transformation of law
inevitably produced by change in the social substratum.
● The norm of non-discrimination or non-separation on the basis of race has
become a rule of customary international law because resolutions,
declarations, etc, on the same matter and organizations took place
repeatedly.
● General practice, in custom-generating process, is generally a result of the
repetition of individual acts of States constituting consensus in regard to a certain
content of a rule of law. Each resolution, declaration, etc is a manifestation of the
collective will of individual participant States.
● ICJ cited the ff. Resolutions which assert the existence of the international
norm and standards of non-discrimination and non-separation and refer to
this source of international law:
1. Resolutions of the GA
2. Resolutions of the Security Council
3. 11 trust territories agreements
4. UDHR etc.
● Although the issue started 40 years ago, retroactivity is recognized because
basically it is but an authentic interpretation of already existing provisions of the
Mandate and the Covenant.
● What ought to have been clear 40 years ago has been revealed by the creation of
a new customary law which plays the role of authentic interpretation the
effect of which is retroactive.
Conclusion:
10 | PIL 2D
From what has been said above, we consider that the norm of non- discrimination or non-
separation on the basis of race has become a rule of customary international law as is
contended by the Applicants, and as a result, the Respondent's obligations as Mandatory
are governed by this legal norm in its capacity as a member of the United Nations.

What is the Mandates System?

● Was established by the League of Nations
● Considered as an original method of administering certain underdeveloped
overseas possessions which formerly belonged to the different States in WW1.
● Essential principles of the mandates system:
○ Recognition of certain rights of the peoples of the underdeveloped
territories
○ Establishment of a regime of tutelage for each of such peoples to be
exercised by an advanced nation as a ―Mandatory‖ ―on behalf of the LON‖
○ Recoginition of ―a sacred trust of civilization‖ laid upon the League as an
organized international community and upon its Member States.
○ Its object is the promotion of the well being and development of the
people concerned and is fortified by setting up safeguards for the
protection of their rights.

11 | PIL 2D
 5. Republic vs Sandiganbayan
Petitioner/s: Republic of the Philippines
Respondent/s: Sandiganayan, Major General Josephus Q. Ramas and
Elizabeth Dimaano
Doctrine: During the interregnum, the Bill of Rights of the 1973 constitution is
not in effect but the revolutionary government is still bound by the International
Covenant on Civil and Political Rights and the Universal Declaration on
Human Rights as they form part of customary law.
Facts:
● Immediately upon her assumption to office following the successful EDSA
Revolution, then President Corazon C. Aquino issued Executive Order No. 1 ("EO
No. 1") creating the Presidential Commission on Good Government ("PCGG"). EO
No. 1 primarily tasked the PCGG to recover all ill-gotten wealth
● EO No. 1 vested the PCGG with the power "(a) to conduct investigation as may be
necessary in order to accomplish and carry out the purposes of this order" and the
power "(h) to promulgate such rules and regulations as may be necessary to carry
out the purpose of this order."
● Accordingly, the PCGG, through its then Chairman Jovito R. Salonga, created an
AFP Anti-Graft Board ("AFP Board") tasked to investigate reports of unexplained
wealth and corrupt practices by AFP personnel, whether in the active service or
retired.2
● Based on its mandate, the AFP Board investigated various reports of alleged
unexplained wealth of respondent Major General Josephus Q. Ramas ("Ramas").
● On 27 July 1987, the AFP Board issued a Resolution on its findings and
recommendation on the reported unexplained wealth of Ramas. The relevant part
of the Resolution reads:
● FINDINGS and EVALUATION:
● Respondent is the owner of a house and lot located at 15-Yakan St., La Vista,
Quezon City (around P700)
● He is also the owner of a house and lot located in Cebu City.
● The equipment/items and communication facilities which were found in the
premises of Elizabeth Dimaano
● These items could not have been in the possession of Elizabeth Dimaano if not
given for her use by respondent Commanding General of the Philippine Army.
● Aside from the military equipment/items and communications equipment, the
raiding team was also able to confiscate money in the amount of ₱2,870,000.00
and $50,000 US Dollars in the house of Elizabeth Dimaano
● Affidavits disclosed that Elizabeth Dimaano is the mistress of respondent.
● That respondent usually goes and stays and sleeps in the alleged house of
Elizabeth Dimaano in Barangay Tengga, Itaas, Batangas City and when he arrives,
Elizabeth Dimaano embraces and kisses respondent.
● A person who rode in a car went to the residence of Elizabeth Dimaano with four
(4) attache cases filled with money and owned by MGen Ramas.
● Sworn statement in the record disclosed also that Elizabeth Dimaano had no
visible means of income and is supported by respondent for she was formerly a
mere secretary.
● This money was never declared in the Statement of Assets and Liabilities of
respondent.
● Although the amount of ₱2,870,000.00 and $50,000 US Dollars were not included,
still it was disclosed that respondent has an unexplained wealth of ₱104,134. 60.
● The PCGG filed a petition for forfeiture under Republic Act No. 1379 ("RA No.
1379") against Ramas.
● The Amended Complaint prayed for, among others, the forfeiture of respondents‘
properties, funds and equipment in favor of the State.
Republic asked for a deferment of the hearing due to its lack of preparation for trial
and the absence of witnesses and vital documents to support its case. The court
reset the hearing.
● A lot of resetting happened because of Republic‘s inability to present evidence and
witnesses
● The Sandiganbayan noted that petitioner had already delayed the case for over a
year
● Private respondents then filed their motions to dismiss based on Republic v.
Migrino.
● The Court held in Migrino that the PCGG does not have jurisdiction to investigate
and prosecute military officers by reason of mere position held without a showing
that they are "subordinates" of former President Marcos.
● Sandiganbayan dismissed the Amended Complaint and remanded to the Hon.
Ombudsman, who has primary jurisdiction over the forfeiture cases under R.A. No.
1379, for such appropriate action as the evidence warrants
Issue: W/N the search and seizure are void? YESssssssssssss
Ratio:
● Interregnum Date: Feb 25 1986 to March 24, 1986
● On 3 March 1986, the Constabulary raiding team served at Dimaano‘s residence a
search warrant captioned "Illegal Possession of Firearms and Ammunition."
● Dimaano was not present during the raid but Dimaano‘s cousins witnessed the
raid.
12 | PIL 2D
● The raiding team seized these items: one baby armalite rifle with two magazines;
40 rounds of 5.56 ammunition; one pistol, caliber .45; communications equipment,
cash consisting of ₱2,870,000 and US$50,000, jewelry, and land titles.
● The EDSA Revolution took place on 23-25 February 1986.
● As succinctly stated in President Aquino‘s Proclamation No. 3 dated 25 March
1986, the EDSA Revolution was "done in defiance of the provisions of the 1973
Constitution."
● The resulting government was indisputably a revolutionary government bound by
no constitution or legal limitations except treaty obligations that the revolutionary
government, as the de jure government in the Philippines, assumed under
international law.
● We hold that the Bill of Rights under the 1973 Constitution WAS NOT operative
during the interregnum.
● However, we rule that the protection accorded to individuals under the Covenant
and the Declaration remained in effect during the interregnum.
● During the interregnum, the directives and orders of the revolutionary government
were the supreme law because no constitution limited the extent and scope of
such directives and orders.
● The government in power was concededly a revolutionary government bound by
no constitution.
● The revolutionary government, after installing itself as the de jure government,
assumed responsibility for the State‘s good faith compliance with the International
Covenant on Civil and Political Rights to which the Philippines is a signatory.
● Article 2(1) of the Covenant requires each signatory State "to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant."
● Under Article 17(1) of the Covenant, the revolutionary government had the duty to
insure that "no one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence."
● The Universal Declaration of Human Rights, to which the Philippines is also a
signatory, provides in its Article 17(2) that "[n]o one shall be arbitrarily deprived of
his property."
● Although the signatories to the Declaration did not intend it as a legally binding
document, being only a declaration, the Court has interpreted the Declaration as
part of the generally accepted principles of international law and binding on the
State.
● Thus, the revolutionary government was also obligated under international law to
observe the rights of individuals under the Declaration.
● The revolutionary government did not repudiate the Covenant or the Declaration
during the interregnum. Whether the revolutionary government could have
repudiated all its obligations under the Covenant or the Declaration is another
matter and is not the issue here.
● Suffice it to say that the Court considers the Declaration as part of customary
international law, and that Filipinos as human beings are proper subjects of the
rules of international law laid down in the Covenant.
● The fact is the revolutionary government did not repudiate the Covenant or the
Declaration in the same way it repudiated the 1973 Constitution. As the de jure
government, the revolutionary government could not escape responsibility for the
State‘s good faith compliance with its treaty obligations under international law.
● It was only upon the adoption of the Provisional Constitution on 25 March 1986
that the directives and orders of the revolutionary government became subject to a
higher municipal law that, if contravened, rendered such directives and orders void.
● The Provisional Constitution adopted verbatim the Bill of Rights of the 1973
Constitution.
● During the interregnum when no constitution or Bill of Rights existed, directives
and orders issued by government officers were valid so long as these officers did
not exceed the authority granted them by the revolutionary government. The
directives and orders should not have also violated the Covenant or the
Declaration.
● In this case, the revolutionary government presumptively sanctioned the warrant
since the revolutionary government did not repudiate it. The warrant, issued by a
judge upon proper application, specified the items to be searched and seized. The
warrant is thus valid with respect to the items specifically described in the warrant.
● However, the Constabulary raiding team seized items not included in the warrant.
As admitted by Republic‘s witnesses, the raiding team confiscated items not
included in the warrant
● It is obvious from the testimony of Captain Sebastian that the warrant did not
include the monies, communications equipment, jewelry and land titles that the
raiding team confiscated. The search warrant did not particularly describe these
items and the raiding team confiscated them on its own authority.
● The raiding team had no legal basis to seize these items without showing that
these items could be the subject of warrantless search and seizure. Clearly, the
raiding team exceeded its authority when it seized these items.
● The seizure of these items was therefore void, and unless these items are
contraband per se, and they are not, they must be returned to the person from
whom the raiding seized them.
● However, we do not declare that such person is the lawful owner of these items,
merely that the search and seizure warrant could not be used as basis to seize and
withhold these items from the possessor. We thus hold that these items should be
returned immediately to Dimaano.
Dispositive: WHEREFORE, the petition for certiorari is DISMISSED. The questioned
Resolutions of the Sandiganbayan dated 18 November 1991 and 25 March 1992 in Civil
13 | PIL 2D
Case No. 0037, remanding the records of this case to the Ombudsman for such appropriate
action as the evidence may warrant, and referring this case to the Commissioner of the
Bureau of Internal Revenue for a determination of any tax liability of respondent Elizabeth
Dimaano, are AFFIRMED.

Others:
● We hold that PCGG has no such jurisdiction.
● SEC. 2. The Commission shall be charged with the task of assisting the President
in regard to the following matters:
● (a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand
E. Marcos, his immediate family, relatives, subordinates and close associates,
whether located in the Philippines or abroad, including the takeover and
sequestration of all business enterprises and entities owned or controlled by them,
during his administration, directly or through nominees, by taking undue advantage
of their public office and/ or using their powers, authority, influence, connections or
relationship.
● The PCGG, through the AFP Board, can only investigate the unexplained wealth
and corrupt practices of AFP personnel who fall under either of the two categories
mentioned in Section 2 of EO No. 1. These are:
● (1) AFP personnel who have accumulated ill-gotten wealth during the
administration of former President Marcos by being the latter‘s immediate family,
relative, subordinate or close associate, taking undue advantage of their public
office or using their powers, influence x x x; or
● (2) AFP personnel involved in other cases of graft and corruption provided the
President assigns their cases to the PCGG.
● Republic claims that Ramas‘ position enabled him to receive orders directly from
his commander-in-chief, undeniably making him a subordinate of former President
Marcos.
● We hold that Ramas was not a "subordinate" of former President Marcos in the
sense contemplated under EO No. 1 and its amendments.
● Mere position held by a military officer does not automatically make him a
"subordinate" as this term is used in EO Nos. 1, 2, 14 and 14-A absent a showing
that he enjoyed close association with former President Marcos.
● (SEE origs na lang for other stuff feel ko talaga irrelevant na tong ibang issues)
● Based on the findings of the Sandiganbayan and the records of this case, we find
that petitioner has only itself to blame for non-completion of the presentation of its
evidence.

14 | PIL 2D
 6. International Status of South-West Africa, Opinion of Sir Arnold McNair
Petitioner/s:
Respondent/s:
Doctrine: The true view of the duty of international tribunals in this matter is to
The Legal Nature of the Mandate System
regard any features or terminology which are reminiscent of the rules and
institutions of private law as an indication of policy and principles rather than
as directly importing these rules and institutions
Facts:
- In this case South Africa sought the recognition of the UN to integrate South West
Africa into its territory.
- The UN General assembly asked the court to advise on the status of South West
Africa (now Namibia)
- ICJ held that South West Africa was a territory under the Mandate and South
Africa was not competent to change the status of it
Issue:
1.) What is the effect of the dissolution of the League of Nations upon the Mandate for
South-West Africa and which if any of the obligations arising from it are binding upon the
Union of South Africa?
(a) Does the Union of South Africa continue to have international obligations under
the Mandate for South West Africa and, if so, what are those obligations? (Differ as to
the obligation to make reports and as to the transfer of the administrative supervision
of the Council of the League of Nations to the UN) DIFFERENCE WITH MAJORITY
(b) Are the provisions of Chapter XII of the Charter applicable and, if so, in what manner, to
the Territory of South-West Africa?
(c) Has the Union of South Africa the competence to modify the international status of the
Territory of South West Africa, or, in the event of a negative reply, where does competence
rest to determine and modify the international status of the Territory?
Ratio:
- Union argues that mandate is based on the analogy of the contract of mandate in
private law
- The league being the mandator and the union the mandatory, the relationship
cannot subsist without both. Mandate therefore came to an end from the
dissolution of the League of Nations. The dissolution of the League had the effect
of extinguishing all international legal rights and obligations under the Mandates
System. The conclusion thus being that the Union would be free to regulate the
future status of South West Africa as a domestic matter
- Sir Arnold McNair, however argues that the legal nature of the Mandates System,
the objective character of Article 22 of the Covenant of the League of Nations and
the terms of the Mandate for South West Africa and their legal nature make the
mandate a more durable and complex institution.
- Principal documents responsible for the creation of the mandate system are Article
22 of the Covenant of the League of Nations and other mandates confirmed in
pursuance of it by the council of the league
- The main rule of policy proclaimed by Article 22 is that certain territories ―which are
inhabited by peoples not yet able to stand by themselves under the strenuous
conditions of the modern world, there should be applied the principle that the well-
being and development of such peoples form a sacred trust of civilization and that
securities for the performance of this trust should be embodied in this Covenant
- International law has recruited and continues to recruit many of its rules and
institutions from private systems of law
- The way in which international law borrows from this source is not by means of
importing private law institutions ―lock, stock and barrel‖, ready made and fully
equipped with a set of rules
- The true view of the duty of international tribunals in this matter is to regard any
features or terminology which are reminiscent of the rules and institutions of private
law as an indication of policy and principles rather than as directly importing these
rules and institutions
- Thus it is important to find the underlying policy and principles of Article 22 and of
the mandate
- International tribunals should regard features and terminologies of private law as
an indication of the policy and principle of these States, rather than directly
importing these rules and institutions. 

- Nearly every legal system possess some institution whereby property may be
entrusted to some responsible person as a trustee
- General principles common to all these institutions
- 1) the control of the trustee over the property is limited in one way or another; he is
not in the position of the normal complete owner, who can do what he likes with his
own, as he is precluded from administering the property for his own personal
benefit; 

- 2) the trustee is under some kind of legal obligation, based on confidence and
conscience, to carry out the trust or mission confided to him for the benefit of some
other person or for some public purposes; and 

- 3) any attempt by one of these persons to absorb the property entrusted to him into
his own patrimony would be illegal and would be prevented by the law. 

- It would be in violation of the trust to absorb SW Africa into South Africa. 

- The doctrine of sovereignty has no application to this new system
15 | PIL 2D
 - Sovereignty over a mandated territory is held in abeyance
- The mandatory acquires only a limited title to the territory entrusted to it and that
the measure of its power is what is necessary for the purpose of carrying out the
mandate
- The mandatory‘s rights like the trustees have their foundation in his obligations;
they are tools given in order to achieve the work assigned to him
- The words "mandate" and "Mandatory" were employed as non-technical terms to
denote that the Mandatory was doing something "on behalf of the League", and
that is all that can be extracted from their use. It is primarily from the principles of
the trust that help can be obtained on the side of private law.
The objective character of Article 22 of the Covenant of the League of Nations
- ―From time to time it happens that a group of great Powers, or a large number of
States both great and small, assume a power to create by a multipartite treaty
some new international régime or status, which soon acquires a degree of
acceptance and durability extending beyond the limits of the actual contracting
parties, and giving it an objective existence.‖
- Article 22 proclaims, ―"the principle that the well-being and development of such
peoples form a sacred trust of civilization and that securities for the performance of
this trust should be embodied in the Covenant".
- In McNair‘s opinion, the regime established in pursuance of this ―principle‖ has
more than a purely contractual basis and the territories subjected to it are
impressed with a special legal status designed to last until modified in the manner
indicated by Article 22
- Despite the dissolution of the league, McNair claims that they are mechanical
difficulties and that the policy and principles of the new institution have survived
and been reincarnated by the ―International Trusteeship System‖
Terms of the mandate for SW Africa and their legal nature
- Under Article 22 the Council of the League will define "the degree of authority,
control or administration to be exercised by the Mandatory"
- This is not the language of sovereignty and indicates some new relationship
between states and the territory for which it is to become responsible
- The mandate created a status for SW Africa
- This status supplies the element of permanence which would enable the legal
condition of the territory to survive the disappearance of the league even if there
were no surviving personal obligations between South Africa and the other former
member of the league
- "Real" rights created by an international agreement have a greater degree of
permanence than personal rights, because these rights acquire an objective
existence which is more resistant than personal rights to the dislocating effects of
international events.
- It is unnecessary to determine the respective roles of the principal allied and
associated powers and the council of the league
- The mandate for SW Africa was never formally terminated and there are no events
which can be said to have brought about its termination by implication
- The obligations owed to the league itself have come to an end. The obligations,
owed to former Members of the League, at any rate, those who were Members at
the date of its dissolution, subsist, except in so far as their performance involves
the actual cooperation of the League, which is now impossible.
- Although there is no longer any League to supervise the exercise of the Mandate,
every state which was a member of the league at the time of tis dissolution still has
a legal interest in the proper exercise of the mandate
- The mandate provides two kinds of machinery for its supervision (judicial and
administrative)
- Judicial refers to the right of any member of the league to bring the mandatory
compulsorily before the permanent court
- Administrative refers to the means of annual reports and examination by the
Permanent Mandates Commission of the League
- Judicial supervision has been expressly preserved by means of Article 37 of the
Statute of the ICJ
- "Whenever a treaty or convention in force provides for reference of a
matter to a tribunal to have been instituted by the League of Nations, or to
the Permanent Court of International Justice, the matter shall, as between
the parties to the present Statute, be referred to the International Court of
Justice."
- On the other hand administrative supervision by the council of the league as
advised by the permanent mandates commission has lapsed
- This supervision has lapsed as the league and its council and permanent
mandates commission no longer exist making it impossible to perform this
obligation
- It is pure inference to think that the UN automatically succeeded the Council of the
League in this respect as the charter contains no provision for such succession
Dispositive:
16 | PIL 2D
 7. Diversion of Waters from the River Meuse [Netherlands vs Belgium] - DE
VERA
Petitioner/s: Netherlands
Respondent/s: Belgium
Doctrine (in Opinion of Judge Hudson, relevant for topic): Principles of
equity have long been considered to constitute a part of international law, and
as such they have often been applied by international tribunals.
Facts:
1. The Meuse is an international river, which rises in France and flows through
Belgium and Netherlands.
2. On May 12, 1863, Belgium and Netherlands concluded a Treaty (Treaty of 1863)
due to various disagreements they had over the Meuse.
a. Purpose: "to settle permanently and definitively the regime governing
diversions of water from the Meuse for the feeding of navigation canals
and irrigation channels"
b. Example of disagreements: irrigation works in the Campine district in
Belgium caused flooding in the Brabant district in Netherlands; the
currents in the Zuid-Willemsvaart canal of Netherlands became
excessively swift because of the amount of water Belgium was taking
from the river
3. By the end of the century, however, it was becoming clear that larger and better
canals were required to meet the commercial development taking place between
the parties.
4. The parties negotiated for construction of works but never agreed.
a. A treaty was constructed in 1925, but Netherlands‘ First Chamber
rejected it.
b. Netherlands then built the Juliana Canal, Bosscheveld Lock (1931) and
the Borgharen barrage.
c. Because of the constructions made by Netherlands, Belgium built the
2
Neerhaeren Lock (1934) and started to build the Albert Canal.
5. Netherlands instituted before the PCIJ proceedings with respect to the diversion of
water from the river Meuse against Belgium.
a. Ground: the works being executed by Belgium constituted an infringement
of the Treaty of 1864
b. Belgium‘s counterclaim: the works done by Netherlands were also
incompatible with the Treaty
2 3
Both locks are important in the Individual Opinion by Judge Hudson
Issue: WoN the execution by Belgium/Netherlands of various works violate the Treaty of
1863 - NO
Relevant topic is in the Individual Opinion by Judge Hudson (You can skip the entire
ratio I think if Atty. Lala does not ask anyway)
Ratio:
1. The majority opinion of the Court refused to apply the general rules of international
law as regards rivers. The points at issue must all be determined solely by the
interpretation of the Treaty.
2. The Court rejected the various submissions of both Parties.
3
NETHERLANDS’ CLAIMS
Article I of the Treaty, which provides for a single feeder, situated in Netherlands‘ territory,
gives them the right to supervise and control all the intakes, situated not only in their own
territory, but also in Belgian territory.
● This contention implies that "the Treaty of 1863 intended to place the Parties in a
situation of legal inequality by conferring on the Netherlands a right of control to
which Belgium could not lay claim.
● To allow the existence of such inequality, the text of the treaty must say so in
precise terms.
The Netherlands criticized Belgium‘s Neerhaeren Lock but do not invoke a specific provision
of the Treaty.
● The Court, after mentioning the earlier construction by the Netherlands of the
Bosscheveld Lock, refuses to admit their complaint.
With regard to the supply by Belgium to a section of the Albert Canal of water taken from
the Meuse elsewhere than at Maestricht, the Court considers that the origin of the water is
irrelevant.
● Nothing prevents either party from making such use as they may see fit of the
canals covered by the Treaty.
BELGIUM’S COUNTERCLAIMS
The construction by Netherlands of the Borgharen barrage was a violation.
● The Treaty does not forbid the Netherlands from altering the depth of water in the
Meuse at Maestricht without the consent of Belgium.
The construction of the Juliana Canal on the right bank of the Meuse was a violation of the
treaty.
● The Court finds that the Treaty was designed to regulate the supply of water to the
canals situated on the left bank of the Meuse only.
Source: https://www.internationalwaterlaw.org/cases/meuse.html
17 | PIL 2D
Dispositive: FOR THESE REASONS, in regard to the principal claim, the Court, by ten
votes to three, rejects the various submissions of the Memorial presented by the
Netherlands Government in pursuance of its Application dated August 1st, 1936. As regards
the counterclaim presented in the Belgian Counter-Memorial, dated January 28th, 1937, the
Court, by ten votes to three, rejects the submissions of the aforesaid counter-claim.

Individual Opinion, Judge Hudson

1. While I concur in the judgment of the Court, I should prefer a fuller statement of the
reasons for the result reached.
2. Aside from the fact that the moving Party (Netherlands) is the one whose
action preceded that of the other, that the Bosscheveld Lock was put into
service in 1931 and the Neerhaeren Lock only in 1934, is this a case in which
affirmative relief should be given by the Court?
3. What are widely known as principles of equity have long been considered to
constitute a part of international law, and as such they have often been applied by
international tribunals.
a. A sharp division between law and equity, such as prevails in the
administration of justice in some States, should find no place in
international jurisprudence.
4. Article 38 of the Statute expressly directs the application of "general principles of
law recognized by civilized nations", and in more than one nation principles of
equity have an established place in the legal system. The Court has some
freedom to consider principles of equity as part of the international law
which it must apply.
5. It would seem to be an important principle of equity that where two parties have
assumed an identical or a reciprocal obligation, one party which is engaged in a
continuing non-performance of that obligation should not be permitted to
take advantage of a similar non-performance of that obligation by the other
party.
6. The general principle is one of which an international tribunal should make a very
sparing application. It is certainly not to be thought that a complete fulfilment of all
its obligations under a treaty must be proved as a condition precedent to a State's
appearing before an international tribunal to seek an interpretation of that treaty.
a. Yet, in a proper case, and with scrupulous regard for the limitations which
are necessary, a tribunal bound by international law ought not to shrink
from applying a principle of such obvious fairness.
7. In equity, the Netherlands is not in a position to have such relief decreed to
her. Belgium cannot be ordered to discontinue the operation of the
Neerhaeren Lock when the Netherlands is left free to continue the operation
of the Bosscheveld Lock.
a. The Court is asked to decree a kind of specific performance of a
reciprocal obligation which the demandant itself is not performing.

18 | PIL 2D
 8. Trendtex Trading Corporation vs Central Bank of Nigeria
Petitioner/s: Trendtex Trading Corporation
Respondent/s: Central Bank of Nigeria
Doctrine: Applying the generally accepted principle of restrictive
immunity,(because the international community has now departed from
absolute immunity), it states that if a certain act is jure impreii, it gives
immunity to acts of a governmental nature, but no immunity to acts of a
commercial nature, jure gestionis.
International law is incorported into domestic law unless this clashes
with a statutory provision in which case statute shall prevail
Facts:
● Background of the case: In July 1975, the port of Lagos/Apapa was congested with
shipping of cement due to the government departments ordering too much for the
construction of houses, buildings, factories, etc. Then after the change of
government, the military administration issued a notice to suspend the import of
cement to Nigeria
● Even before the crisis broke, the Nigerian Ministry of Defense bought tons of
cement from Pan-African Export and Import Co. Ltd.
○ For which, the Central Bank of Nigeria, issued an irrevocable letter of
credit
● Pan-African entered into a contract with Trendtex of Switzerland (plaintiffs)
● The credit was, properly, transferred to the plaintiffs who shipped the cement to
Nigeria.
● Because of complications at port caused by substantial over-ordering of cement,
the plaintiffs' vessels were delayed prior to discharge
● the Bank refused to make payments under the letter of credit upon the plaintiffs
applying for the same in respect of demurrage.
● Upon the plaintiffs issuing proceedings for breach and repudiation of the letter of
credit, the Bank contended that it is a department of the Federal Republic of
Nigeria and is immune from suit
● Trendtex allege the application of the Uniform Customs issued by the International
Chamber of Commerce:
○ ―Credits, by their nature, are separate transactions from the sales or other
contracts on which they may be based and banks are in no way
concerned with or bound by such contracts.‖
Issue:
WON the Central Bank of Nigeria is immune from suit as based on international law?-NO
Ratio:
● To my mind this notion of a consensus is a fiction. The nations are not in the least
agreed upon the doctrine of sovereign immunity.
● The courts of every country differ in their application of it. Some grant absolute
immunity. Others grant limited immunity, with each defining the limits differently.
There is no consensus whatever.
○ Yet this does not mean that there is no rule of international law upon the
subject. It only means that we differ as to what that rule is. Each country
delimits for itself the bounds of sovereign immunity. Each creates for itself
the exceptions from it.
○ It is, I think, for the courts of this country to define the rule as best they
can, seeking guidance from the decisions of the courts of other countries,
from the jurists who have studied the problem, from treaties and
conventions and, above all, defining the rule in terms which are
consonant with justice rather than adverse to it.
The two schools of thought
A fundamental question arises for decision. What is the place of international law in our
English law?
● One school of thought holds to the doctrine of incorporation.
○ It says that the rules of international law are incorporated into English law
automatically and considered to be part of English law unless they are in
conflict with an Act of Parliament.
○ when the rules of international law change, our English law changes with
them
○ ―I now believe that the doctrine of incorporation is correct.‖ -ponente
● The other school of thought holds to the doctrine of transformation.
○ It says that the rules of international law are not to be considered as part
of English law except in so far as they have been already adopted and
made part of our law by the decisions of the judges, or by Act of
Parliament, or long established custom
○ The English law does not change. It is bound by precedent. It is bound
down to those rules of international law which have been accepted and
adopted in the past.
○ It cannot develop as international law develops.
● I would find less difficulty in accepting restrictive immunity, in place of absolute
immunity if restrictive immunity were as generally accepted today as absolute
immunity was in the past – and that may not have been as universally accepted as
I have assumed.
○ But rules of international law, whether they be part of our law or source of
our law, must be in some sense ―proved,‖ and they are not proved.
English courts by expert evidence like foreign law: they are ―proved‖ by
taking judicial notice of ―international treaties and conventions,
19 | PIL 2D
 authoritative text books, practice and judicial decisions‖ of other courts in
other countries which show that they have ―attained the position of
general acceptance by civilised nations‖
○ And those sources come seldom if ever from every civilised nation or
agree upon a universal rule; they move from one generally accepted rule
towards another.
○ But if none moved, old rules would never die and new rules never come
into being. Some move must be made by states, or their tribunals, or
jurists, to prevent petrifaction of the living law
● Moreover, and in line with contemporary trends in international law, sovereign
immunity should not extend to commercial transactions, and in that context no
distinction could be drawn between commercial and ―governmental‖ transactions
until the law was altered by act of Parliament or by decision of the House of Lords.
● If a government department goes into the market places of the world and buys
boots or cement – as a commercial transaction – that government department
should be subject to all the rules of the market place.
○ The seller is not concerned with the purpose to which the purchaser
intends to put the goods.
● ―The law of nations … is here adopted in its full extent by the common law, and is
held to be a part of the law of the land.‖
○ He went on to add that ―the law merchant is a branch of the law of nation
○ But the universal consent required by this confident and exacting 18th
century definition is, as Lord Denning M.R. has pointed out, a fiction; if it
ever existed, it is not now forthcoming in many spheres of international
law, and certainly not, in my judgment, in the area of sovereign immunity.
○ There is, however, ample authority not for the view that each nation can
decide what rule suggested by any jurist or body of jurists, or laid down
and applied by any foreign court or courts, it can and should itself apply,
but for the view that it can and should apply a generally accepted rule.
Dispositive:
Appeal allowed with costs in Court of Appeal and below with a certificate for three counsel.
Application of bank dismissed.
Leave to appeal.
Injunction extended to cover amount in issue and past and future costs

20 | PIL 2D
 9. Tanada vs Angara
Petitioner/s: WIGBERTO E. TANADA and ANNA DOMINIQUE COSETENG,
as members of the Philippine Senate and as taxpayers;
Respondent/s: members of the Philippine Senate who concurred in the
ratification by the President of the Philippines of the Agreement Establishing
the World Trade Organization;
SUMMARY: This case is about the Philippines joining the World Trade
Organization (WTO). The petitioners are assailing the WTO Agreement for
allegedly violating the mandate of the 1987 Constitution to (1) develop a self-
reliant and independent national economy, and (2) give preference to qualified
Filipinos and promote the preferential use of Filipino labor, domestic materials
and locally produced goods.
The Court ruled that the provisions of the WTO Agreement and its annexes
indeed limited, restricted, or impaired the exercise of legislative power by
Congress, but that it did so validly.
Doctrine: A portion of sovereignty may be WAIVED without violating the
Constitution based on the rationale that the Philippines ―adopts the generally
accepted principles of international law as part of the law of the land.‖ By their
voluntary act, nations may SURRENDER some aspects of their state power in
exchange for greater benefits granted by or derived from a convention or pact.
Facts:
● The World Trade Organization (WTO) was created after the signing of the Final Act
in Morocco, which then DTI Secretary Rizalino Navarro signed in behalf of the
Philippines.
● By doing so, he agreed to submit the WTO Agreement for the consideration of the
proper government authorities. President Ramos sent a letter to the Senate
thereby submitting to them the Uruguay Round Final Act for its concurrence.
● The Senate later concurred, and as such the Philippines joined the WTO with the
goal of ―improving Philippine access to foreign markets.‖
● The petitioners are ASSAILING the WTO Agreement for allegedly violating the
mandate of the 1987 Constitution to develop a self-reliant and independent
national economy, and give preference to qualified Filipinos and promote the
preferential use of Filipino labor, domestic materials and locally produced goods.
● Their main arguments are that:
○ the WTO requires the Philippines to place nationals and products of other
member-countries on the same footing as local products, and that
○ the WTO intrudes, limits and/or impairs the constitutional powers of both
Congress and the Supreme Court.
● They PETITIONED for the nullification of the concurrence of the Senate in the
President‘s ratification of the WTO Agreement and the prohibition of its
implementation and enforcement.
Issue:
1. W/N the petition a justiciable controversy? — YES
2. W/N the provisions of the WTO Agreement and its annexes limit, restrict, or impair
the exercise of legislative power by Congress? — YES, BUT VALID
3. W/N the provisions of the WTO Agreement and its three annexes contravene Sec
19, Article II and Secs. 10 and 12, Article XII of the PH Constitution? - NO
Ratio:
W/N the petition a justiciable controversy? — YES
● In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable controversy
W/N the provisions of the WTO Agreement and its annexes limit, restrict, or impair
the exercise of legislative power by Congress? — YES, BUT VALID
● Sovereignty has traditionally been deemed absolute, but it is subject to restrictions and
limitations voluntarily agreed to by the Philippines, expressly or impliedly
● A portion of sovereignty may be WAIVED without violating the Constitution based on the
rationale that the Philippines ―adopts the generally accepted principles of international law
as part of the law of the land‖ (ART. II, SEC. 2)
● By their voluntary act, nations may SURRENDER some aspects of their state power in
exchange for greater benefits granted by or derived from a convention or pact (i.e., the
consideration is the reciprocal commitment of other contracting states in granting the same
privilege and immunities to the Philippines)
● The DOCTRINE OF INCORPORATION binds the country to generally accepted
principles of international law, which are considered to be automatically part of our laws
● PACTA SUNT SERVANDA — international agreements must be kept in good faith. A
treaty engagement is not a mere moral obligation but creates a legally binding obligation
on the parties

W/N the provisions of the WTO Agreement and its three annexes contravene Sec 19,
Article II and Secs. 10 and 12, Article XII of the PH Constitution? - NO
● Principles in Article II are generally NOT intended to be self-executing (i.e., ready for
enforcement). They are used by the courts as guides on the exercise of its power of judicial
review and by the legislature in its enactment of laws.
● The Constitution DID NOT intend to pursue an isolationist policy — the
constitutional policy of a ―self-reliant and independent economy‖ DOES NOT necessarily
rule out the entry of foreign investments, goods and services.
21 | PIL 2D
● Poor countries can protect their common interests more effectively through the WTO
than through one-on-one negotiations with developed countries. Within the WTO,
developing countries can form powerful blocs to push their economic agenda more
decisively than outside the WTO.
○ The basic principles underlying the WTO Agreement recognize the need of
developing countries like the Philippines to share in the growth in international trade
commensurate with the needs of their economic development.
○ There is no basis that local industries will be wiped out or that Filipinos will be
deprived of control of the economy under the WTO, as the Philippines can avail of certain
measures when local businesses are jeopardized by foreign competition.

Dispositive:
DISMISSED for lack of merit. No separate opinions.

22 | PIL 2D

10. Medellin vs Texas
Petitioner/s: Medellin
Respondent/s: US supreme court
Doctrine: To be binding on US courts, international treaties must be self-
executing or implemented by supporting laws created by Congress. The
Vienna convention is not self-executory and does not automatically
convert ICJ decisions into domestic law.
Facts:
● Jose Medellin is a mexican and a member of the Black and Whites gang.
● On June 24, 1993, 2 teenagers (Ertman and Pena) encountered Medellin together
with his other gang members. They raped the girls for an hour and murdered them
to prevent their identification. Medellin was personally responsible for strangling
one of the girls using a shoelace.
● On June 29, 1993, Medellin was arrested. After he was given Miranda warnings,
he confessed to the crime. The police were unable to inform Medellin of his right
under the Vienna Convention (Art. 36) to notify the Mexican Consulate of his
detention.
○ Article 36 of the Vienna Conventions provides that if a person detained by
a foreign country ―so requests, the competent authorities of the receiving
State shall, without delay, inform the consular post of the sending State‖
of such detention, and ―inform the [detainee] of his right to request
assistance from the consul of his own state.
● Medellin was convicted for capital murder and sentenced to death. This was
affirmed on appeal.
● Medellin raises for the first time his Vienna Convention right in his first application
for post-conviction relief. The court held that the claim was procedurally defaulted
because Medellin failed to raise during trial or on direct review. Moreover, he was
unable to show that the non-notification of the Mexican authorities impacted the
validity of his conviction or punishment.
● While his appeal was pending on the 5th circuit court, the ICJ rendered a decision
on the Avena case.
○ Avena case: A case filed by Mexico against the US. The ICJ held that the
United States had violated Article
36(1)(b) of the Vienna Convention by failing to inform the 51 named
Mexican nationals,including Medellín, of their Vienna Convention rights. In
the ICJ‘s determination, the US was obligated to provide, by means of its
own choosing, review and reconsideration of the convictions and
sentences of the Mexican nationals and thatt such review was required
without regard to state procedural default rules.
● The 5th circuit denied Medellin‘s appeal and held that the Vienna Convention did
not confer individually enforceable rights and that such claims are still subject to
procedural default rules.
● The case was raised to the SC. However, before the oral arguments were heard
President Bush issued a memorandum to the US atty-general that the US will
discharge its international obligations based on the decision in Avena by having
state courts give effect to it in accordance with general principles of comity.
● Relying on the said Memorandum, Medellin filed a second application for habeas
corpus relief. This was dismissed. The Texas Court of Criminal appeals also
dismissed the case stating that the Avena decision and the Memorandum were not
binding federal law.
Issue:
1. WON the Avena decision automatically becomes domestic law? No
2. WON the Avena decision became binding to state courts by virtue of the
President’s memorandum? No
Ratio:
1. The Avena decision does not automatically become domestic law.
- Treaties are not domestic law until unless Congress has either enacted
implementing statutes or the treaty itself conveys an intention that it be
‗self-executing‘ and is ratified on these terms.
- As a signatory to the Optional Protocol, the United States agreed to
submit disputes arising out of the Vienna Convention to the ICJ. However,
submitting to jurisdiction and agreeing to be bound are 2 different things.
A party may agree to submit to the jurisdiction of the tribunal but consider
the tribunal‘s decision to be non-binding.
- The obligation to comply with the ICJ decision derives from Article 94 of
the UN Charter—the provision that specifically addresses the effect of ICJ
decisions. Article 94(1) provides that ―[e]ach Member of the United
Nations undertakes to comply with the decision of the [ICJ] in
any case to which it is a party.
- A proper construction of Art 94 only means that it is a commitment on the part of U.
N. Members to take future action through their political branches to comply with an
ICJ decision. It does not mean that the US ―shall‖ or ―must‖ comply with an ICJ
decision, nor indicate that the Senate that ratified the U. N. Charter intended to
vest ICJ decisions with immediate legal effect in domestic courts. Rather, it is a call
to governments to take certain action.
- The said interpretation is further supported by the fact that the artcicle provides
that the sole remedy for noncompliance-referral to the United Nations Security
Council by an aggrieved state is diplomatic in nature. Moreover, when the US
23 | PIL 2D
 signed the Optional protocol they retained the unqualified right to exercise its veto
of any Security Council resolution.
- If ICJ judgments were regarded as automatically enforceable domestic law, they
would be immediately and directly binding on state and federal courts pursuant to
the Supremacy Clause. Mexico or the ICJ would have no need to proceed to the
Security Council to enforce the judgment in this case. Noncompliance with an ICJ
judgment through exercise of the Security Council veto—always regarded as an
option by the Executive and ratifying Senate during and after consideration of the
U. N. Charter, Optional Protocol, and ICJ Statute—would no longer be a viable
alternative. There would be nothing to veto. In light of the U. N. Charter‘s remedial
scheme, there is no reason to believe that the President and Senate signed up for
such a result.
- Medellin cannot be a party to the ICJ case. The ICJ can only hear disputes
between nations and not individuals. Its decision is only binding to the parties
involved in the case and only to with regards to the issue of the case.
- Our Framers established al set of procedures that must be followed before federal
law can be created under the Constitution—vesting that decision in the political
branches, subject to checks and balances. It is only through the political branches
that treaties can be a source of federal law, with the President making the treaty
and the Senate approving it.
- The conclusion is further supported by the postratification understanding of the
signatory nations. Medellin and his amici cannot find any nation that considers the
ICJ statute as binding in domestic courts.
- The procedural rules of the forum State govern the implementation
- of the treaty in that State. If it was the state‘s intention to give the treaty domestic
effect, they would have clearly expressed this intention. Such intention was absent
in this case.
2. The president memorandum does not make the avena decision binding on state
courts.
- The President has an array of political and diplomatic means available to enforce
international obligations, but unilaterally converting a non-self-executing treaty into
a self-executing one is not among them. The responsibility for transforming an
international obligation arising from a non-self-executing treaty into domestic law
falls to Congress. This power is derived from the constitution which divides the
treaty-making power between the President and the Senate.
- If the Executive determines that a treaty should have domestic
- effect of its own force, this may be implemented by ensuring that the treaty
contains language plainly providing for domestic enforceability. If the treaty is to be
self-executing in this respect, the Senate must consent to the treaty by the
requisite 2/3 vote.
- However, once a treaty is ratified without provisions clearly according it domestic
effect, it is a non self-executing treaty which can only become domestic law thru
congress.
- When the President asserts the power to ―enforce‖ a non-self-executing treaty by
unilaterally creating domestic law, he acts in conflict with the implicit understanding
of the ratifying Senate.
Dispositive:
The judgment of the Texas Court of Criminal Appeals is affirmed.
Concurring, Stevens, J.:
1. Justice Stevens concurred with the majority, but in his concurring opinion he stated that
even though he concurs with the result of majority he thinks "this case presents a closer
question than the Court's opinion allows."
2. While the President could not legislate on his own, the Court should have been more
willing to consider whether the treaties mentioned were indeed self-executing.
Dissenting, Breyers, J. Souter and Ginsberg join.:
1. the dissenters grounded their position in the Supremacy Clause, arguing
both that treaties were the supreme law of the land binding on all courts and
that the relevant treaties were, in fact, self-executing and therefore did not
require additional legislative or executive action to enable Courts to comply
with international demands.
2. That based on historical example12 , there is a strong presumption that
treaties be interpreted as self-executing.
3. Also, they stated that the President was merely trying to comply with
international obligations and absence of Congressional action should not
hinder compliance with international obligations.
24 | PIL 2D