PUBLIC INTERNATIONAL LAW CASE DIGESTSCOMPILED BY FEROZZA DELIA SIMBULANSAN BEDA COLLEGE OF LAW || 2D

Art. 38, ICJ Statute

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law;c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

Art. 53, Vienna Convention on Treaties

Article 53. TREATIES CONFLICTING WITH A PEREMPTORY NORM OF GENERAL INTERNATIONAL LAW ("JUS COGENS")

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

SHIGENORI KURODA VS. MAJOR GENERAL RAFAEL JALANDONI, Duque, Toralba, Buencosejo, Tabuena, Aranas, Hussey and Port. March 26, 1949.

-Kuroda, formerly a Lieutenat-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the Phils in 1943-1944 was charged before the military commission for unlawfully disregarding and failing to discharge his duties as such command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Japanese Imperial forces in violations of laws and customs of war.

-Petitioner argues: 1) that EO 68 is illegal on the ground that it violates the constitution and local laws as Phils is not a signatory to the Hague Convention on Rules and Regulation covering Land Warfare, thus, petitioners is charged of crimes not based on law, national and international empanelled and that the military commission is without jurisdiction to try the petitioner. 2) He also argues that the US Attorneys Hussey and Port are not authorized by the SC to practice law in the Phils and their participation is a diminution of our personality as an independent state and in violation of our Consti and they also have no personality as prosecution as US is not a party in the case.

-EO 68: established the National War Crimes Office, prescribing the rules and regulations governing the tiral of accused war criminal is valid and constitutional because Sec. 3 Art 2 of Consti provides that the Phils renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the nation. This is also in accordance with the Hague Convention, the Geneva Convention and significant precedents of international jurisprudence.

-The said EO is an exercise by the President of his power as Commander in Chief of all armed forces. It is an adoption of measure not only to repel and defeat the enemies but also to seize and subject to disciplinary measure those enemies who attempts to violate the law of war.

-the military commission for the trial and punishment of war criminals has jurisdiction as long as the technical state of war continues which includes the period until military occupation up to the treaty of peach and may extend beyond.

-Such rule and principles of the Hague Convention therefore form part of the law of our nation even if the Philippines was not a signatory for our Constitution has been general and extensive in its scope and is not confined to the recognition of rule and principle of international law.

-Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was under the sovereignty of United States and thus we were equally bound together with the United States and with Japan Our rights and obligation were not erased by our assumption of full sovereignty but entitles us to enforce the right on our own of trying and punishing those who committed crimes against crimes against our people. War crimes committed against our people and our government while we were a Commonwealth are triable and punishable by our present Republic.

- Military Commission is a special military tribunal governed by a special law and not by the Rules of court which govern ordinary civil court. It has already been shown that Executive Order No. 68 which provides for the organization of such military commission is a valid and constitutional law. There is nothing in said executive order which requires that counsel appearing before said commission must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In facts it is common in military tribunals that counsel for the parties are usually military personnel who are neither attorneys nor even possessed of legal training.

-Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is only fair and proper that United States, which has submitted the vindication of crimes against her government and her people to a tribunal of our nation should be allowed representation in the trial of those very crimes

-It is of common knowledge that the United State and its people have been equally if not more greatly aggrieved by the crimes with which petitioner stands charged before the Military Commission. It can be considered a privilege for our Republic that a leader nation should submit the vindication of the honor of its citizens and its government to a military tribunal of our country.

-The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes charged which fall under the provisions of Executive Order No. 68, and having said petitioner in its custody, this Court will not interfere with the due process of such Military commission.

Tomoyuki Yamashita vs. Wilhem StyerG.R. L-129 December 19, 1945Ponente: Moran, C.J.

FACTS:1. Yamashita was the Commanding General of the Japanese army in the Philippines during World War 2. He was charged before the American military commission for war crimes.

2. He filed a petition for habeas corpus and prohibition against Gen. Styer to reinstate his status as prisoner of war from being accused as a war criminal. Petitioner also questioned the jurisdiction of the military tribunal.

Issue: Whether or not the military tribunal has jurisdiction

HELD:

YES.1. The military commission was lawfully created in conformity with an act of Congress sanctioning the creation of such tribunals.

2. The laws of war imposes upon a commander the duty to take any appropriate measures within his powers to control the troops under his command to prevent acts which constitute violation of the laws of war. Hence, petitioner could be legitimately charged with personal responsibility arising from his failure to take such measure. In this regard the SC invoked Art. 1 of the Hague Convention No. IV of 1907, as well as Art. 19 of Hague Convention No. X, Art. 26 of 1929 Geneva Convention among others.

3. Habeas corpus is untenable since the petitioner merely sought for restoration to his former status as prisoner of war and not a discharge from confinement. This is a matter of military measure and not within the jurisdiction of the courts.

4. The petition for prohibition against the respondent will also not life since the military commission is not made a party respondent in the case. As such, no order may be issued requiring it to refrain from trying the petitioner.

Eremes Kookooritchkin v. Solicitor General, G.R. No. L-1812, August 27, 1948

FACTS:In August 1941, appellee-petitioner Kookooritchkin filed with the CFI of Camarines Sur a petition for naturalization, supported by (a) the affidavits of ex-Judge Jaime M. Reyes and Dr. Salvador Mariano, residents of Camarines Sur, (b) his declaration of intention which was sworn in July 1940, and (c) notice of hearing.

The petition was filed in August 1941 but was not heard until August 28 and Sept. 30, 1947 when appellee-petitioner presented his evidence, since the province was invaded by the Japanese forces during WWI and the case records had to be reconstituted after being destroyed during the war.

Appellant SolGen cross-examined appellee-petitioners witnesses but did not file any opposition and did not present any evidence to controvert the petition. The CFI granted the petition for naturalization, finding that appellee-petitioner was a native-born Russian who grew up as a citizen of and was part of the military of the defunct Imperial Russian Government under the Czars. He had several stints while in military service before he joined the White Russian Army at Vladivostok and fought against the Bolsheviks until 1922 when the latter force defeated the former.

Refusing to join the Bolshevik regime, he fled by sea to Shanghai, and eventually went to Manila as part of the group of White Russians under Admiral Stark in March 1923. He finally permanently resided in Iriga, Camarines Sur except during his stint in the guerrilla force in Caramoan from 1942 to July 1945. The lower court also made findings of the establishment of his family, employment, social life, his ability to speak and write English and Bicol, his good moral character, adherence to the underlying principles of the Philippine Constitution, and being a stateless refugee belonging to no State.

ISSUES: W/N (1) appellee-petitioners declaration of intention to become a Filipino citizen was valid and sufficient basis for his petition for naturalization, (2) appellee-petitioner sufficiently established legal residence in the Philippines and could speak and write any of the principal Philippine languages, and (3) appellee-petitioner was stateless refugee.

HELD: (1) Section 5 of the Revised Naturalization Law applies and provides that [n]o declaration shall be valid until entry for permanent residence has been established and a certificate showing the date, place and manner of his arrival has been issued. While appellee-petitioners declaration was reconstituted, the attached certificate referred to in the declaration was not reconstituted. The SC ruled that the law does not state that the certificate is essential to the validity of the declaration as the only requirement is for the said certificate to be issued. There is the uncontroverted fact of appellee-petitioners peaceful and continuous residence in the Philippines for 25 years and statement in his declaration that a certificate had been attached to the said declaration. Hence, appellee-petitioners declaration was valid under law in view of other competent evidence showing the facts sought to be established under the certificate that was not reconstituted.

(2) Appellee-petitioner has sufficiently shown legal residence in the Philippines for a continuous period of not less than 10 years as required by Section 2 of the Revised Naturalization Law. In addition, appellee-petitioner had good command of both English and Bicol. While there may be many standards out there, none was set in the law on the required ability to speak and write any of the principal Philippine languages. Appellee-petitioner got along well with his comrades during his hazardous days in the guerrilla movement thus showing that he satisfied the requirement of the law. There was also circumstantial evidence that appellee-petitioner also ought to know how to write Bicol, which uses the same alphabet used in English and so widely used in the Philippines. Given his good command of English as shown in his testimony, appellee-petitioner could easily make use of the same alphabet in the place where he had been residing for 25 years.

(3) Appellant SolGen asserted that appellee-petitioner failed to show that he lost his citizenship under the laws of Russia and that Russia granted to Filipinos the same right to be naturalized citizens. However, the SC still found that lower court did not err in finding appellee-petitioner as a stateless refugee. Appellee-petitioners testimony that he is not a Russian citizen and that he has no citizenship is uncontroverted. There is also the well-known ruthlessness of modern dictatorships giving rise to a great number of stateless refugees or displaced persons, without country or flag. The tyrannical intolerance of dictatorships to opposition translates into beastly oppression, concentration camps and bloody purges, such that it is only natural that those who flee to other countries to escape such a situation, such as appellee-petitioner, lose all bonds of attachments to their former fatherlands.

The Paquete Habana, 175 U.S. 677 (1900)Nos. 895-896Argued November 7-8, 1899Decided January 8, 1900

Brief Fact Summary. The argument of the fishermen whose vessels was seized by the U.S (P) officials was that international law exempted coastal fishermen from capture as prizes of war.

Synopsis of Rule of Law. The argument of the fishermen whose vessels was seized by the U.S (P) officials was that international law exempted coastal fishermen from capture as prizes of war.

Facts. This appeal of a district court decree, which condemned two fishing vessels and their cargoes as prizes of war, was brought by the owners (D) of two separate fishing vessels. Each of the vessel running in and out of Havana and sailing under the Spanish flag was a fishing smack which regularly engaged in fishing on the coast of Cuba. Inside the vessels were fresh fish which the crew had caught.The owners of the vessels were not aware of the existence of a war until they were stopped by U.S. (P) squadron. No incriminating material like arms were found on the fishermen and they did not make any attempt to run the blockade after learning of its existence not did they resist their arrest. When the owners (D) appealed, they argued that both customary international law and writings of leading international scholars recognized an exemption from seizure at wartime of coastal fishing vessels.

Issue. Are coastal fishing vessels with their cargoes and crews excluded from prizes of war?

Held. (Gray, J.). Yes. Coastal fishing vessels with their cargoes and crews are excluded from prizes of war. The doctrine that exempts coastal fishermen with their vessels and crews from capture as prizes of war has been known by the U.S. (P) from the time of the War of Independence and has been recognized explicitly by the French and British governments. It is an established rule of international law that coastal fishing vessels with their equipment and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fish are exempt from capture as prizes of war. Reversed.

Discussion. Chief Justice Fuller who had a dissenting opinion which was not published in this casebook argued that the captured vessels were of such a size and range as to not fall within the exemption. He further argued that the exemption in any case had not become a customary rule of international law, but was only an act of grace that had not been authorized by the President.

CO KIM CHAM vs. ESEBEUIO VALDEZ TAN KEH75 phil. 113, September 17, 1945

FACTS: Co Kim Cham had a pending case that was filed during the period of Japanese occupation. He filed a petition of Mandamus, in which he is requesting for the judge of the lower court to continue the proceedings in the Court of First Instance in Manila. But Judge Arsenio P. Dizon refused to take cognizance of and continue the proceedings of the said case since the proclamation issued on October 23, 1944 by General Douglas MacArthur invalidating and nullifying the judicial proceedings and judgments of the court of the Philippines, in the absence of an enabling law, the lower courts have no jurisdiction to take cognizance of and continue judicial proceedings pending in the courts while the government is under the occupation of the Japanese. ISSUES:1. Whether or not the judicial acts and proceedings of the court existing in the Philippines under the Philippine Executive Commission and the Republic of the Philippines were good and valid.2. Whether or not the proclamation issued by General Douglas MacArthur in which he declared that all laws, regulations and processes of any of the government in the Philippines are null and void has invalidated all judgments and judicial acts and proceedings of the said courts.

HELD:1. YES. The judicial acts and proceedings of the court were good and valid. The government, during the Japanese occupation being de facto government, it necessarily follows that the judicial acts and proceedings of the court of justice of those governments, which are not of a political complexion, were good and valid. Those not only judicial but also legislative acts of de facto government, which are not of a political complexion, are remain valid after reoccupation of a territory.

2. NO. The proclamation does not invalidate the judgement and judicial proceedings. And applying the principles for the exercise of military authority in an occupied territory, President McKinley, in his executive order to the Secretary of War of May 19,1898, said in part: "Though the powers of the military occupant are absolute and supreme, and immediately operate upon the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of person and property and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and to be administered by the ordinary tribunals, substantially as they were before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion. The judges and the other officials connected with the administration of justice may, if they accept the authority of the United States, continue to administer the ordinary law of the land as between man and man under the supervision of the American Commander in Chief."

RAMON GONZALES VS RUFINO HECHANOVA9 SCRA 23

FACTS:During the term of President Diosdado Macapagal, he entered into two executive agreements with Vietnam and Burma for the importation of rice without complying with the requisite of securing a certification from the National Economic Council showing that there is a shortage in cereals or rice. Hence, the then Executive Secretary, Rufino Hechanova, authorized the importation of 67,000 tons of rice from abroad to the detriment of our local planters. Ramon Gonzales, then president of the Iloilo Palay and Corn Planters Association assailed the executive agreements. Gonzales averred that Hechanova is without jurisdiction or in excess of jurisdiction, because Republic Act 3452 prohibits the importation of rice and corn by the Rice and Corn Administration or any other government agency.ISSUE: Whether or not RA 3452 prevails over the 2 executive agreements entered into by Macapagal.Whether an executive or an international agreement may be invalidated by our courts

HELD: Yes. Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have acquired the status of laws, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws. In the event of conflict between a treaty and a statute, the one which is latest in point of time shall prevail, is not applicable to the case at bar, Hechanova not only admits, but, also, insists that the contracts adverted to are not treaties. No such justification can be given as regards executive agreements not authorized by previous legislation, without completely upsetting the principle of separation of powers and the system of checks and balances which are fundamental in our constitutional set up.

As regards the question whether an executive or an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing that the SC may not be deprived of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error, as the law or the rules of court may provide, final judgments and decrees of inferior courts in All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question. In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

LAO ICHONG VS. JAIME HERNANDEZG.R. No. L-7995 May 31, 1957

FACTS:Lao Ichong is a Chinese businessman who entered the country to take advantage of business opportunities herein abound (then) particularly in the retail business. For some time he and his fellow Chinese businessmen enjoyed a monopoly in the local market in Pasay. Until in June 1954 when Congress passed the RA 1180 or the Retail Trade Nationalization Act the purpose of which is to reserve to Filipinos the right to engage in the retail business. Ichong then petitioned for the nullification of the said Act on the ground that it contravened several treaties concluded by the RP which, according to him, violates the equal protection clause (pacta sund servanda). He said that as a Chinese businessman engaged in the business here in the country who helps in the income generation of the country he should be given equal opportunity.

ISSUE: Whether or not a law may invalidate or supersede treaties or generally accepted principles.

HELD: Yes, a law may supersede a treaty or a generally accepted principle. In this case, there is no conflict at all between the raised generally accepted principle and with RA 1180. The equal protection of the law clause does not demand absolute equality amongst residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced; and, that the equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.

For the sake of argument, even if it would be assumed that a treaty would be in conflict with a statute then the statute must be upheld because it represented an exercise of the police power which, being inherent could not be bargained away or surrendered through the medium of a treaty. Hence, Ichong can no longer assert his right to operate his market stalls in the Pasay city market.

North Sea Continental Shelf Cases(Federal Republic of Germany/Denmark, Federal Republic of Germany/Netherlands)I.C.J. Reports 1969

Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement for forming customary international law State practice (objective element) and opinio juris (subjective element). It elaborated the criteria necessary to establish State practice widespread and representative participation. The case highlighted that the State practice of importance were of those States whose interests were affected by the custom. It also identified the fact that uniform and consistent practice was necessary to show opinio juris a belief that the practice amounts to a legal obligation. The North Sea Continental Self Cases also dispelled the myth that duration of the practice (i.e. the number of years) was an essential factor in forming customary international law.

The case involved the delimitation of the continental shelf areas in the North Sea between Germany and Denmark and Germany and Netherlands beyond the partial boundaries previously agreed upon by these States. The parties requested the ICJ to decide the principles and rules of international law that are applicable to the above delimitation. The parties disagreed on the applicable principles or rules of delimitation Netherlands and Denmark relied on the principle of equidistance (the method of determining the boundaries in such a way that every point in the boundary is equidistant from the nearest points of the baselines from which the breath of the territorial sea of each State is measured). Germany sought to get a decision in favour of the notion that the delimitation of the relevant continental shelf is governed by the principle that each coastal state is entitled to a just and equitable share (hereinafter called just and equitable principle/method). Contrary to Denmark and Netherlands, Germany argued that the principle of equidistance was neither a mandatory rule in delimitation of the continental shelf nor a rule of customary international law that was not binding on Germany. The court was not asked to delimit the parties agreed to delimit the continental shelf as between their countries, by agreement, after the determination of the ICJ on the applicable principles.

Facts of the Case:

Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle (A-B and C-D). An agreement on further prolongation of the boundary proved difficult because Denmark and Netherlands wished this prolongation to take place based on the equidistance principle (B-E and D-E) where as Germany was of the view that, together, these two boundaries would produce an inequitable result for her. Germany stated that due to its concave coastline, such a line would result in her loosing out on her share of the continental shelf based on proportionality to the length of its North Sea coastline. The Court had to decide the principles and rules of international law applicable to this delimitation. In doing so, the court had to decide if the principles espoused by the parties were binding on the parties either through treaty law or customary international law.

Questions before the Court:

Is Germany under a legal obligation to accept the equidistance-special circumstances principle, contained in Article 6 of the Geneva Convention, either as a customary international law rule or on the basis of the Geneva Convention?

The Courts Decision:

The use of the equidistance method had not crystallised into customary law and was is not obligatory for the delimitation of the areas in the North Sea related to the present proceedings.

Relevant Findings of the Court:

Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6, binding on Germany?

1. Article 6 of the Geneva Convention on the Continental Shelf states that unless the parties have agreed on a method for delimitation or unless special circumstances exist, the equidistance method would apply (see Article 6). Germany has signed but not ratified the Geneva Convention, while Netherlands and Denmark are parties to the Convention. The latter two States argue that while Germany is not a party to the Convention (not having ratified it), she is still bound by Article 6 of the Convention because:

(1) by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the conventional regime; or has recognized it as being generally applicable to the delimitation of continental shelf areas

(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as to cause other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken up (the latter is called the principle of estoppel).

2. The Court rejected the first argument. It stated that only a very definite very consistent course of conduct on the part of a State would allow the court to presume that a State had somehow become bound by a treaty (by a means other than in a formal manner: i.e. ratification) when the State was at all times fully able and entitled to accept the treaty commitments in a formal manner. The Court held that Germany had not unilaterally assumed obligations under the Convention. The court also took notice of the fact that even if Germany ratified the treaty, she had the option of entering into a reservation on Article 6 following which that particular article would no longer be applicable to Germany (i.e. even if one were to assume that Germany had intended to become a party to the Convention, it does not presuppose that it would have also undertaken those obligations contained in Article 6).

3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in 1980, discusses more fully the obligations of third States to treaties. It clearly stipulates that an obligation arises for a third State from a provision of a treaty only if (1) the parties to the treaty intend the provision to create this obligation for the third States; and (2) the third State expressly accepts that obligation in writing (A. 35 of the VCLT). The VCLT was not in force when the ICJ deliberated on this case. However, as seen above, the ICJs position was consistent the VCLT. (See the relevant provisions of the Vienna Convention on the Law of Treaties).

4. The court held that the existence of a situation of estoppel would have allowed Article 6 to become binding on Germany but held that Germanys action did not support an argument for estoppel. The court also held that the mere fact that Germany may not have specifically objected to the equidistance principle as contained in Article 6 is not sufficient to state that the principle is now binding upon it.

5. In conclusion, the court held that Germany had not acted in any way to incur obligations contained in Article 6 of the Geneva Convention. The equidistance special circumstances rule was not binding on Germany by way of treaty.

Nature of the customary international law obligation: Is Germany bound by the provisions of Article 6 of the Geneva Convention by way of customary international law?

6. Netherlands and Denmark argued that Article 6 also reflected the accepted rule of general international law on the subject of continental shelf delimitation and existed independently of the Convention. Therefore, they argued, Germany is bound by it by way of customary international law.

7. To decide if the equidistance principle bound Germany by way of customary international law, the court examined (1) the status of the principle contained in Article 6 as it stood when the Convention was being drawn up (2) and after the latter came into force.

What was the customary law status of Article 6 at the time of drafting the Convention?

8. The court held the principle of equidistance, as contained in Article 6, did not form a part of existing or emerging customary international law at the time of drafting the Convention. The Court supported this finding based on (1) the hesitation expressed by the drafters of the Convention International Law Commission on the inclusion of Article 6 (para. 62) and (2) the fact reservations to Article 6 was permissible under the Convention (Article 12). The court held:

Article 6 is one of those in respect of which, under the reservations article of the Convention (Article 12) reservations may be made by any State on signing, ratifying or acceding for, speaking generally, it is a characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making unilateral reservations may, within certain limits, be admitted; whereas this cannot be so in the case of general or customary law rules and obligations which, by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favor. The normal inference would therefore be that any articles that do not figure among those excluded from the faculty of reservation under Article 12, were not regarded as declaratory of previously existing or emergent rules of law (see para 65 for a counter argument and the courts careful differentiation)

Did the provisions in Article 6 on the equidistance principle attain the customary law status after the Convention came into force?

9. The court then examined whether the rule contained in Article 6 had become customary international law after the Convention entered into force either due the convention itself (i.e., if enough States had ratified the Convention in a manner to fulfil the criteria specified below), or because of subsequent State practice (i.e. even if adequate number of States had not ratified the Convention one could find sufficient State practice to meet the criteria below). The court held that Article 6 of the Convention had not attained a customary law status (compare the 1958 Geneva Convention with the four Geneva Conventions on 1949 in the field of international humanitarian law in terms of its authority as a pronouncement of customary international law).

10. For a customary rule to emerge the court held that it needed: (1) very widespread and representative participation in the convention, including States whose interests were specially affected (i.e. generality); and (2) virtually uniform practice (i.e. consistent and uniform usage) undertaken in a manner that demonstrates (3) a general recognition of the rule of law or legal obligation (i.e. opinio juries). In the North Sea Continental Shelf cases the court held that the passage of a considerable period of time was unnecessary (i.e. duration) for the formation of a customary law.

Widespread and representative participation

11. The court held that the first criteria was not met. The number of ratifications and accessions to the convention (39 States) were not adequately representative (including of coastal States i.e. those States whose rights are affected) or widespread.

Duration

12. The court held that duration taken for the customary law rule to emerge is not as important as widespread and representative participation, uniform usage and the existence of an opinio juris.

Although the passage of only a short period of time (in this case, 3 5 years) is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved (text in brackets added).

Opinio juris

13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case) in so far as those acts or omissions are done following a belief that the said State is obligated by law to act or refrain from acting in a particular way. (For more on opinio juris click here).

14. The Court examined 15 cases where States had delimited their boundaries using the equidistance method, after the Convention came into force (paras. 75 -77). The court concluded, even if there were some State practice in favour of the equidistance principle the court could not deduct the necessary opinio juris from this State practice. The North Sea Continental Shelf Cases confirmed that both State practice (the objective element) and opinio juris (the subjective element) are essential pre-requisites for the formation of a customary law rule. This is consistent with Article 38 (1) (b) of the Statute of the ICJ. The following explains the concept of opinio juris and the difference between customs (i.e. habits) and customary law:

Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e, the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.

15. The court concluded that the equidistance principle was not binding on Germany by way of treaty or customary international law because, in the case of the latter, the principle had not attained a customary international law status at the time of the entry into force of the Geneva Convention or thereafter. As such, the court held that the use of the equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings.

NICARAGUA VS UNITED STATES: AN ANALYSIS OF JURISPRUDENCE ON CUSTOMARY INTERNATIONAL LAW

Case: Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua vs United States)

Year of Decision: 1986. Court: ICJ.

Overview: The case involved military and paramilitary activities conducted by, or with the assistance of, the United States against Nicaragua from 1981 to 1984. Due to a multilateral treaty reservation of the United States (hereinafter called the Vandenberg reservation), the Court was compelled to base its findings only on customary and general principles of international law. As a result, the Nicaragua case developed significant jurisprudence on clarifying customary international law on the use of force and non-intervention, elements necessary to form customary international law and the relationship between the latter and treaty law. Controversial aspects of the decision included the courts methodology used to determine that the principle of non-intervention had attained customary law status, the courts reliance on UN resolutions as a source of opinio juris and the courts reliance on multilateral treaties to determine customary international law in face of the Vandenberg reservation.

In the Nicaragua case, the ICJ discussed:

The competence of the ICJ to give its determination based on customary international law in the face of the Vandenberg reservation of the United States. The relationship between treaty law and customary international law. Elements of customary international law. The prohibition on the use of force as a jus cogens norm. Customary international law status of the principle of non-intervention. The competence of the ICJ to give its determination based on customary international law

The competence of the ICJ to give its determination based on customary international law

1. The United States when accepting the compulsory jurisdiction of the ICJ (under Article 36(2) of the ICJ Statute) entered into the Vandenberg reservation. This reservation barred the ICJ from using certain multilateral treaties in the adjudication of the dispute.

2. The United States held that this reservation barred the Court from determining the case even on the basis of customary and general principles of international law because customary law provisions, on which Nicaragua relied on, were identical to provisions in treaties sought to be excluded. Because of the identical content, the United States argued, treaty provisions supervene and subsume the parallel customary law provision (see below).

3. The Court disagreed. It held that multilateral treaty reservations could not preclude the Court from determining cases relying customary international law because the latter exists independently of treaty law.

NB: The United States disagreed with the Courts determination to proceed with the case and refused to participate further, including at the merits stage (see the declaration made by the United States in this regard). Although the Court was barred from resorting to multilateral treaties, it referred to the latter, including the UN Charter, to identify the existence, nature and scope of various customary law principles. Commentators criticised the Court for circumventing the multilateral reservation in this manner.

Relationship between treaty law and customary international law

4. As we noted before, the United States argued that when customary international law and treaty law contain the same content; the treaty law subsumes and supervenes customary international law. In other words, the existence of principles in the United Nations Charter precludes the possibility that similar rules might exist independently in customary international law, either because existing customary rules had been incorporated into the Charter, or because the Charter influenced the later adoption of customary rules with a corresponding content (para 174).

5. In its response, the Court distinguished two situations:

(a) Situations where the customary law principles were identical to treaty provisions; and

(b) Situations where customary law and treaty law rights and obligations differed in respect of the same subject matter.

6. In situations where customary law principles were identical to treaty provisions (reflected as (a) above), the Court, quite correctly, disagreed with the view of the United States. It held that even if principles of customary international law are codified into treaties, the former continues to exist side by side with the latter. For treaty parties, both customary and treaty law apply and if, for some reason, the treaty ceases to apply the identical customary law provision continues to apply between them unaffected (see more on para 178).

7. The fact that customary international law exists alongside treaty law was an argument brought by Norway and Denmark in the North Sea Continental Shelf Cases. In these cases, the two countries having failed to attribute an obligation under Article 6 of the Geneva Conventions of 1958 to Germany, sought to bind Germany via customary international law. In this case the Court determined that Article 6 neither reflected customary law at the time of the codification, nor had it attained that status at the time of the determination. In the Nicaragua case, the Court relied on the North Sea Continental Shelf Cases to support the assertion that principles of customary international law can exist side by side with identical treaty law provisions and the latter does not supervene the former in a manner where the former ceases to exist (para 177).

8. The Court also relied on Article 51 of the UN Charter to show that a treaty itself can recognise the existence of customary international law on the same subject matter. The term inherent in Article 51 recognised that customary law rights of self-defense existed alongside treaty provisions.

9. Rules containing the same content could be treated differently in customary international law and in treaty law. For example, treaty law may contain institutions or mechanisms to ensure the effective implementation of its provisions, including those that reflect customary law. One could take the Courts reading of Article 51 as an example. A State that exercises the right of self-defence under Article 51, according to the UN Charter, has an obligation to report the use of force immediately to the Security Council. The Court held that this was a treaty requirement and one that did not exist under customary law. Interestingly, although the failure to report did not result in a breach of customary international law, the Court indicated that the United States failure to observe this requirement contradicted her claim to be acting in self defence (see paras 200, 235).

10. The Court discussed situations where customary international law and treaty law provisions were not identical (see point (b) above). For example, the Court referred to the fact that concepts such and necessity and proportionality, or the definition of what constitutes an armed attack, are not found under Article 51, or the UN Charter, but in customary law. The Court concluded that (1) this proves that customary international law continues to exist alongside treaty law and that (2) areas governed by the two sources of law do not (always) overlap and the rules do not (always) have the same content.

the Charter, having itself recognized the existence of this right (inherent customary law right of self-defence under A. 51 of the UN Charter), does not go on to regulate directly all aspects of its content. For example, it does not contain any specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law. Moreover, a definition of the armed attack which, if found to exist, authorises the exercise of the inherent right of self-defence, is not provided in the Charter, and is not part of treaty law. It cannot therefore be held that Article 51 is a provision which subsumes and supervenes customary international law.

11. In case of a divergence between treaty law and customary international law, for the parties to the treaty, amongst themselves, the treaty provisions apply as lex specialis. The courts support for this principle can be found in paras 180 and 181. The Court, in conclusion, explained the relationship between the UN Charter and customary international law in the following manner:

However, so far from having constituted a marked departure from a customary international law which still exists unmodified, the Charter gave expression in this field (on the use of force and self defence) to principles already present in customary international law, and that law has in the subsequent four decades developed under the influence of the Charter, to such an extent that a number of rules contained in the Charter have acquired a status independent of it. The essential consideration is that both the Charter and the customary international law flow from a common fundamental principle outlawing the use of force in international relations. The differences which may exist between the specific content of each are not, in the Courts view, such as to cause a judgment confined to the field of customary international law to be ineffective or inappropriate (to the parties of the Charter who are bound by the Charter) (text in brackets added)(para 181).

The relationship between customary international law and jus cogens

13. The court cited material presented by Nicaragua, the United States and the International Law Commission to argue that the prohibition on the use of force contained in Article 2(4) of the UN Charter has attained the status of a jus cogens norm. The Court found this to be A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the United Nations (para 190).

The necessary elements to determine the existence of customary international law

14. The Court, similar to the North Sea Continental Shelf Case, considered both the subjective element (opinio juris) and the objective element (State practice) as essential pre-requisites to the formation and elucidation of a customary international law norm (para 207). The jurisprudence of the Nicaragua case contained an important clarification inconsistent State practice does not affect the formation or continued existence of a customary principle so long as the inconsistency is justified as a breach of the rule.

It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each others internal affairs.

The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.

If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the States conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule. (para 186)

15. The Nicaragua jurisprudence explained how one could deduct opinio juris from acts of State. The Court held that opinio juris could be deduced from:

- the attitude of States towards certain General Assembly resolutions. For example, the Declaration on Principles of International Law concerning Friendly Relations (hereafter called the Declaration on Friendly Relations). The Court held that:

The effect of consent to the text of such resolutions cannot be understood as merely that of a reiteration or elucidation of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselvesIt would therefore seem apparent that the attitude referred to expresses an opinio juris respecting such rule (or set of rules), to be thenceforth treated separately from the provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter

- Statements by State representatives.

- Obligations undertaken by participating States in international forums (the Court provided the example of the Conference on Security and Co-operation in Europe, Helsinki)

- The International Law Commissions findings that a concept amounts to a customary law principle.

- Multilateral conventions.

NB: The fact that the Court relied on resolutions of the United Nations to deduct opinio juris was subject to criticism. As you know, opinio juris is the subjective element necessary to form customary law. Opinio juris is reflected in instances where the State undertakes a particular practice because it believes that it is legally bound to do so. Voting patterns in the United Nations are often guided by policy considerations over legal merits. The General Assemblys subject matter is more policy oriented than legal (for which we have the 6th Committee). For example, when the United States voted for the Friendly Relations Declaration it stated on record its belief that the Declaration was only a statement of political intention and not an expression of the law. This is not to say that provisions on General Assembly Resolutions that guide the international community to act in a certain way may not eventually become binding international law (either by attaining customary law status or becoming codified into treaty law). It can, if there is adequate State practice and opinio juris. The argument is that opinio juris cannot be said to exist based merely on a vote in favour of a non-binding resolution in the absence of an examination of subsequent consistent and general State practice (which, in turn, reflects or confirms opinio juris).

Customary international law relating to principles of non-intervention

16. The Court held that Principles such as those of the non-use of force (para 191), non-intervention (para 192), respect for the independence and territorial integrity of States, right of collective self defence (para 193) and the freedom of navigation, continue to be binding as part of customary international law, despite the operation of provisions of conventional law in which they have been incorporated (text in brackets added).

17. The Courts finding that principle of non-intervention formed a part of customary international law invited criticism from commentators, partly because they disagreed that the principle formed customary international law and partly because of the Courts own contradictions in coming to its conclusions and inadequacy of analysis (see below). The Courts contradiction stems from this statement: The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference; though examples of trespass against this principle are not infrequent, the Court considers that it is part and parcel of customary international law(emphasis added. Para 202).

18. The Court began its analysis with two questions: Notwithstanding the multiplicity of declarations by States accepting the principle of non-intervention, there remain two questions: first, what is the exact content of the principle so accepted, and secondly, is the practice sufficiently in conformity with it for this to be a rule of customary international law? The first question was discussed in a previous post and will not be discussed here.

18. Although the question seemed to direct the Court towards identifying an existing custom, in its response the Court seemed to have already determined that the customary law prohibition of non-intervention existed. In the following passage the Court deliberates if, in contrast, a customary law right to intervention had evolved.

There have been in recent years a number of instances of foreign intervention for the benefit of forces opposed to the government of another State. The Court is not here concerned with the process of decolonisation It has to consider whether there might be indications of a practice illustrative of belief in a kind of general right for States to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State, whose cause appeared particularly worthy by reason of the political and moral values with which it was identified. For such a general right to come into existence would involve a fundamental modification of the customary law principle of non-intervention. (paras 206, 207).

19. The Court went on to hold, as before, that for a new customary rule to be formed, not only must the acts concerned amount to a settled practice, but they must be accompanied by the opinio juris sive necessitates.

The significance for the Court of cases of State conduct prima facie inconsistent with the principle of non-intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law. In fact however the Court finds that States have not justified their conduct by reference to a new right of intervention or a new exception to the principle of its prohibition. The United States authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law.

20. The Court also noted that the United States has not sought to justify its intervention in Nicaragua on legal grounds, but had only justified it at a political level. The United States had not asserted for itself legal right of intervention in these circumstances. The Court, without further analysis into State practice, almost immediately proceeded to find that no such general right of intervention, in support of an opposition within another State, exists in contemporary international law. The Court concludes that acts constituting a breach of the customary principle of non-intervention will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations (para 209).

Development of a parallel customary international law?

In addition to the comments made above in italics, another interesting aspect of the judgment is that it sought to divorce customary international law obligation from the identical treaty obligation because of the jurisdictional bar to consider multilateral treaties. In its consideration of customary international law it developed certain principles independently of the treaty. For example, Article 2(4) of the UN Charter prohibits the threat or use of force against another State. The Court held that the same prohibition on the use of force could be found under customary international law and as a jus cogens norm. The Court then went on to categorize the use of force under customary law as either a grave use of force (i.e. use of force amounting to an armed attack) or a less grave use of force (i.e. use of force that falls short of an armed attack for example, the threat to use force). The Court, then, restricted the right of self-defense to a situation where there had been a grave use of force (or an armed attack, as defined by the Court). If one were to hold that the relevant Charter principles were clear, precise and unambiguous, one could say this divorced interpretation could result in customary law developing in a manner that is not in line with the Charter and thereby creating separate rights/ regimes of law that govern the same subject matter. This is because, then, the two regimes would be irreconcilable. However, the fact remains that the Charter does leave room for interpretation for example, on the definition of an armed attack or on the use of force. In cases of ambiguity, Article 31 of the Vienna Convention on the Law of Treaties directs us to look at, inter alia, subsequent practice and any relevant rules of international law that maybe applicable. In other words, a treaty can be interpreted with the assistance of customary and general principles of international law. In this case, the development of customary law would also mean a potential development of ambiguous treaty law and a reconciliation of treaty and customary law provisions.

ASYLUM CASE Name of the Case: Asylum Case (Columbia/Peru); Year of the decision: 1950; and Court: ICJ.

Overview:

Columbia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru. Was Columbia entitled to make a unilateral and definitive qualification of the offence (as a political offence) in a manner binding on Peru and was Peru was under a legal obligation to provide safe passage for the Peruvian to leave Peru?

Facts of the Case:

Peru issued an arrest warrant against Victor Raul Haya de la Torre in respect of the crime of military rebellion which took place on October 3, 1949, in Peru. 3 months after the rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification and refused to grant safe passage.

Questions before the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum under treaty law and international law?

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?

(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter called the Havana Convention) when it granted asylum and is the continued maintenance of asylum a violation of the treaty?

The Courts Decision:

Relevant Findings of the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum under treaty law and international law?

1. The court stated that in the normal course of granting diplomatic asylum a diplomatic representative has the competence to make a provisional qualification of the offence (for example, as a political offence) and the territorial State has the right to give consent to this qualification. In the Torres case, Colombia has asserted, as the State granting asylum, that it is competent to qualify the nature of the offence in a unilateral and definitive manner that is binding on Peru. The court had to decide if such a decision was binding on Peru either because of treaty law (in particular the Havana Convention of 1928 and the Montevideo Convention of 1933), other principles of international law or by way of regional or local custom.

2. The court held that there was no expressed or implied right of unilateral and definitive qualification of the State that grants asylum under the Havana Convention or relevant principles of international law (p. 12, 13). The Montevideo Convention of 1933, which accepts the right of unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was not ratified by Peru. The Convention, per say, was not binding on Peru and considering the low numbers of ratifications the provisions of the latter Convention cannot be said to reflect customary international law (p. 15).

3. Colombia also argued that regional or local customs support the qualification. The court held that the burden of proof on the existence of an alleged customary law rests with the party making the allegation:

The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party (that) it is in accordance with a (1) constant and uniform usage (2) practiced by the States in question, and that this usage is (3) the expression of a right appertaining to the State granting asylum (Columbia) and (4) a duty incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute of the Court, which refers to international custom as evidence of a general practice accepted as law(text in brackets added).

4. The court held that Columbia did not establish the existence of a regional custom because it failed to prove consistent and uniform usage of the alleged custom by relevant States. The fluctuations and contradictions in State practice did not allow for the uniform usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of State practice). The court also reiterated that the fact that a particular State practice was followed because of political expediency and not because of a belief that the said practice is binding on the State by way of a legal obligation (opinio juris) is detrimental to the formation of a customary law (see North Sea Continental Shelf Cases and Lotus Case for more on opinio juris):

[T]he Colombian Government has referred to a large number of particular cases in which diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule of unilateral and definitive qualification was invoked or that it was, apart from conventional stipulations, exercised by the States granting asylum as a right appertaining to them and respected by the territorial States as a duty incumbent on them and not merely for reasons of political expediency. The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence.

5. The court held that even if Colombia could prove that such a regional custom existed, it would not be binding on Peru, because Peru far from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offence [as political in nature] in matters of diplomatic asylum. (See in this regard, the lesson on persistent objectors. Similarly in the North Sea Continental Shelf Cases the court held in any event the . . . rule would appear to be inapplicable as against Norway in as much as she had always opposed any attempt to apply it to the Norwegian coast.)

6. The court concluded that Columbia, as the State granting asylum, is not competent to qualify the offence by a unilateral and definitive decision, binding on Peru.

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?

7. The court held that there was no legal obligation on Peru to grant safe passage either because of the Havana Convention or customary law. In the case of the Havana Convention, a plain reading of Article 2 results in an obligation on the territorial state (Peru) to grant safe passage only after it requests the asylum granting State (Columbia) to send the person granted asylum outside its national territory (Peru). In this case the Peruvian government had not asked that Torre leave Peru. On the contrary, it contested the legality of asylum granted to him and refused to grant safe conduct.

8. The court looked at the possibility of a customary law emerging from State practice where diplomatic agents have requested and been granted safe passage for asylum seekers, before the territorial State could request for his departure. Once more, the court held that these practices were a result of a need for expediency and other practice considerations over an existence of a belief that the act amounts to a legal obligation (see paragraph 4 above).

There exists undoubtedly a practice whereby the diplomatic representative who grants asylum immediately requests a safe conduct without awaiting a request from the territorial state for the departure of the refugeebut this practice does not and cannot mean that the State, to whom such a request for safe-conduct has been addressed, is legally bound to accede to it.

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and is the continued maintenance of asylum a violation of the treaty?

9. Article 1 of the Havana Convention states that It is not permissible for States to grant asylum to persons accused or condemned for common crimes (such persons) shall be surrendered upon request of the local government.

10. In other words, the person-seeking asylum must not be accused of a common crime (for example, murder would constitute a common crime, while a political offence would not).The accusations that are relevant are those made before the granting of asylum. Torres accusation related to a military rebellion, which the court concluded was not a common crime and as such the granting of asylum complied with Article 1 of the Convention.

11. Article 2 (2) of the Havana Convention states that Asylum granted to political offenders in legations, warships, military camps or military aircraft, shall be respected to the extent in which allowed, as a right or through humanitarian toleration, by the usages, the conventions or the laws of the country in which granted and in accordance with the following provisions: First: Asylum may not be granted except in urgent cases and for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety.

12. An essential pre-requisite for the granting of asylum is the urgency or, in other words, the presence of an imminent or persistence of a danger for the person of the refugee. The court held that the facts of the case, including the 3 months that passed between the rebellion and the time when asylum was sought, did not establish the urgency criteria in this case (pp. 20 -23). The court held:

In principle, it is inconceivable that the Havana Convention could have intended the term urgent cases to include the danger of regular prosecution to which the citizens of any country lay themselves open by attacking the institutions of that country In principle, asylum cannot be opposed to the operation of justice.

13. In other words, Torre was accused of a crime but he could not be tried in a court because Colombia granted him asylum. The court held that protection from the operation of regular legal proceedings was not justified under diplomatic asylum.

14. The court held:

In the case of diplomatic asylum the refugee is within the territory of the State. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognised unless its legal basis is established in each particular case.

15. As a result, exceptions to this rule are strictly regulated under international law.

An exception to this rule (asylum should not be granted to those facing regular prosecutions) can occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims. Asylum protects the political offender against any measures of a manifestly extra-legal character which a Government might take or attempt to take against its political opponents On the other hand, the safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals. Protection thus understood would authorize the diplomatic agent to obstruct the application of the laws of the country whereas it is his duty to respect them Such a conception, moreover, would come into conflict with one of the most firmly established traditions of Latin-America, namely, non-intervention [for example, by Colombia into the internal affairs of another State like Peru].

16. Asylum may be granted on humanitarian grounds to protect political prisoners against the violent and disorderly action of irresponsible sections of the population. (for example during a mob attack where the territorial State is unable to protect the offender). Torre was not in such a situation at the time when he sought refuge in the Colombian Embassy at Lima.

17. The court concluded that the grant of asylum and reasons for its prolongation were not in conformity with Article 2(2) of the Havana Convention (p. 25).

The grant of asylum is not an instantaneous act which terminates with the admission, at a given moment of a refugee to an embassy or a legation. Any grant of asylum results in, and in consequence, logically implies, a state of protection, the asylum is granted as long as the continued presence of the refugee in the embassy prolongs this protection.

CASE CONCERNING RIGHT OF PASSAGE OVER INDIAN TERRITORY (MERITS)Judgment of 12 April 1960

The case concerning Right of Passage over Indian Territory (Portugal v. India) was referred to the Court by an Application filed on 22 December 1955. In that Application, the Government of Portugal stated that its territory in the Indian Peninsula included two enclaves surrounded by the Territory of India, Dadra and Nagar-Aveli. It was in respect of the communications between those enclaves and the coastal district of Daman, and between each other, that the question arose of a right of passage in favour of Portugal through Indian territory and of a correlative obligation binding upon India. The Application stated that in July 1954 the Government of India prevented Portugal from exercising that right of passage and that Portugal was thus placed in a position in which it became impossible for it to exercise its rights of sovereignty over the enclaves.Following upon the Application, the Court was seised of six preliminary objections raised by the Government of India. By a Judgment given on 26 November 1957, the Court rejected the first four objections and joined the fifth and sixth objections to the Merits.

In its Judgment, the Court:(a) rejected the Fifth Preliminary Objection by 13 votes to 2;(b) rejected the Sixth Preliminary Objection by 11 votes to 4;(c) found, by 11 votes to 4, that Portugal had in 1954 a right of passage over intervening Indian territory between the enclaves of Dadra and Nagar-Aveli and the coastal district of Daman and between these enclaves, to the extent necessary for the exercise of Portuguese sovereignty over the enclaves and subject to the regulation and control of India, in respect of private persons, civil of officials and goods in general;(d) found, by 8 votes to 7, that Portugal did not have in 1954 such a right of passage in respect of armed forces, armed police and arms and ammunition;(e) found, by 9 votes to 6, that India had not acted contrary to its obligations resulting from Portugal's right of passage in respect of private persons, civil officials and goods in general.The President and Judges Basdevant, Badawi, Kojevnikov and Spiropoulos appended Declarations to the Judgment of the Court. Judge Wellington Koo appended a Separate Opinion. Judges Winiarski and Badawi appended a Joint Dissenting Opinion. Judges Armand-Ugon, Moreno Quintana and Sir Percy Spender, and Judges ad hoc Chagla and Fernandes, appended Dissenting Opinions.

In its Judgment the Court referred to the Submissions filed by Portugal which in the first place requested the Court to adjudge and declare that a right of passage was possessed by Portugal and must be respected by India; this right was invoked by Portugal only to the extent necessary for the exercise of its sovereignty over the enclaves, and it was not contended that passage was accompanied by any immunity and made clear that such passage remained subject to the regulation and control of India, which must be exercised in good faith, India being under an obligation not to prevent the transit necessary for the exercise of Portuguese sovereignty. The Court then considered the date with reference to which it must ascertain whether the right invoked existed or did not exist. The question as to the existence of a right of passage having been put to the Court in respect of the dispute which had arisen with regard to obstacles placed by India in the way of passage, it was the eve of the creation of those obstacles that must be selected as the standpoint from which to certain whether or not such a right existed; the selection of that date would leave open the arguments of India regarding the subsequent lapse of the right of passage.

Portugal next asked the Court to adjudge and declare that India had not complied with the obligations incumbent upon it by virtue of the right of passage. But the Court pointed out that it had not been asked, either in the Application or in the final Submissions of the Parties, to decide whether or not India's attitude towards those who had instigated the over-throw of Portuguese authority at Dadra and Nagar-Aveli in July and August 1954 constituted a breach of the obligation, said to be binding upon it under general international law, to adopt suitable measures to prevent the incursion of subversive elements into the territory of another State.

Turning then to the future, the Submissions of Portugal requested the Court to decide that India must end the measures by which it opposed the exercise of the right of passage or, if the Court should be of opinion that there should be a temporary suspension of the right, to hold that that suspension should end as soon as the course of events disclosed that the justification for the suspension had disappeared. Portugal had previously invited the Court to hold that the arguments of India concerning its right to adopt an attitude of neutrality, the application of the United Nations Charter and the existence in the enclaves of a local government were without foundation. The Court, however, considered that it was no part of its judicial function to declare in the operative part of its Judgment that any of those arguments was or was not well founded.

***

Before proceeding to the consideration of the Merits, the Court had to ascertain whether it had jurisdiction to do so, a jurisdiction which India had expressly contested.

In its Fifth Preliminary Objection the Government of India relied upon the reservation in its Declaration of 28 February 1940 accepting the jurisdiction of the Court, which excluded from that jurisdiction disputes with regard to questions which by international law fall exclusively within the jurisdiction of India. The Court pointed out that in the course of the proceedings both Parties had taken their stand on grounds which were on the plane of international law, and had on occasion expressly said so. The fifth objection could not therefore be upheld.

The Sixth Preliminary Objection likewise related to a limitation in the Declaration of 28 February 1940. India, which had accepted the jurisdiction of the Court "over all disputes arising after February 5th, 1930, with regard to situations or facts subsequent to the same date", contended that the dispute did not satisfy either of these two conditions. As to the first condition, the Court pointed out that the dispute could not have arisen until all its constituent elements had come into existence; among these were the obstacles which India was alleged to have placed in the way of exercise of passage by Portugal in 1954; even if only that part of the dispute relating to the Portuguese claim to a right of passage were to be considered, certain incidents had occurred before 1954, but they had not led the Parties to adopt clearly-defined legal positions as against each other; accordingly, there was no justification for saying that the dispute arose before 1954. As to the second condition, the Permanent Court of International Justice had in 1938 drawn a distinction between the situations or facts which constituted the source of the rights claimed by one of the Parties, and the situations or facts which were the source of the dispute. Only the latter were to be taken into account for the purpose of applying the Declaration. The dispute submitted to the Court was one with regard to the situation of the enclaves, which had given rise to Portugal's claim to a right of passage and, at the same time, with regard to the facts of 1954 which Portugal advanced as infringements of that right; it was from all of this that the dispute arose, and this whole, whatever may have been the earlier origin of one of its parts, came into existence only after 5 February 1930. The Court had not been asked for any finding whatsoever with regard to the past prior to that date; it was therefore of opinion that the sixth objection should not be upheld and, consequently, that it had jurisdiction.

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On the merits, India had contended in the first place that the right of passage claimed by Portugal was too vague and contradictory to enable the Court to pass judgment upon it by the application of the legal rules enumerated in Article 38 (1) of the Statute. There was no doubt that the day-to-day exercise of the right might give rise to delicate questions of application but that was not, in the view of the Court, sufficient ground for holding that the right was not susceptible of judicial determination.Portugal had relied on the Treaty of Poona of 1779 and on sanads (decrees) issued by the Maratha ruler in 1783 and 1785, as having conferred on Portugal sovereignty over the enclaves with the right of passage to them; India had objected that what was alleged to be the Treaty of 1779 was not validly entered into and never became in law a treaty binding upon the Marathas. The Court, however, found that the Marathas did not at any time cast any doubt upon the validity or binding character of the Treaty. India had further contended that the Treaty and the two sanads did not operate to transfer sovereignty over the assigned villages to Portugal but only conferred, with respect to the villages, a revenue grant. The Court was unable to conclude from an examination of the various texts of the Treaty of 1779 that the language employed therein was intended to transfer sovereignty; the expressions used in the two sanads, on the other hand, established that what was granted to the Portuguese was only a revenue tenure called a jagir or saranjam, and not a single instance had been brought to the notice of the Court in which such a grant had been construed as amounting to a cession of sovereignty. There could, therefore, be no question of any enclave or of any right of passage for the purpose of exercising sovereignty over enclaves.The Court found that the situation underwent a change with the advent of the British as sovereign of that part of the country in place of the Marathas: Portuguese sovereignty over the villages had been recognized by the British in fact and by implication and had subsequently been tacitly recognized by India. As a consequence the villages had acquired the character of Portuguese enclaves within Indian territory and there had developed between the Portuguese and the territorial sovereign with regard to passage to the enclaves a practice upon which Portugal relied for the purpose of establishing the right of passage claimed by it. It had been objected on behalf of India that no local custom could be established between only two States, but the Court found it difficult to see why the number of States between which a local custom might be established on the basis of long practice must necessarily be larger than two.

It was common ground between the Parties that during the British and post-British periods the passage of private persons and civil officials had not been subject to any restrictions beyond routine control. Merchandise other than arms and ammunition had also passed freely subject only, at certain times, to customs regulations and such regulation and control as were necessitated by considerations of security or revenue. The Court therefore concluded that, with regard to private persons, civil officials and goods in general there had existed a constant and uniform practice allowing free passage between Daman and the enclaves, it was, in view of all the circumstances of the case, satisfied that that practice had been accepted as law by the Parties and had given rise to a right and a correlative obligation.

As regards armed forces, armed police and arms and ammunition, the position was different.

It appeared that, during the British and post-British periods, Portuguese armed forces and armed police had not passed between Daman and the enclaves as of right, and that after 1878 such passage could only take place with previous authorization by the British and later by India, accorded either under a reciprocal arrangement already agreed to, or in individual cases: it had been argued that that permission was always granted, but there was nothing in the record to show that grant of permission was incumbent on the British or on India as an obligation.A treaty of 26 December 1878 between Great Britain and Portugal had laid down that the armed forces of the two Governments should not enter the Indian dominions of the other, except in specified cases or in consequence of a formal request made by the party desiring such entry. Subsequent correspondence showed that this provision was applicable to passage between Daman and the enclaves: it had been argued on behalf of Portugal that on twenty-three occasions armed forces crossed British territory between Daman and the enclaves without obtaining permission, but in 1890, the Government of Bombay had forwarded a complaint to the effect that armed men in the service of the Portuguese Government were in the habit of passing without formal request through a portion of British territory en route from Daman to Nagar-Aveli which would appear to constitute a breach of the Treaty; on 22 December, the Governor-General of Portuguese India had replied: "Portuguese troops never cross British territory without previous permission", and the Secretary-General of the Government of Portuguese India stated on 1 May 1891: "On the part of this Government injunctions will be given for the strictest observance of . . . the Treaty". The requirement of a formal request before passage of armed forces could take place had been repeated in an agreement of 1913. With regard to armed police, the Treaty of 1878 and the Agreement of 1913 had regulated passage on the basis of reciprocity, and an agreement of 1920 had provided that armed police below a certain rank should not enter the territory of the other party without consent previously obtained; finally, an agreement of 1940 concerning passage of Portuguese armed police over the road from Daman to Nagar-Aveli had provided that, if the party did not exceed ten in number, intimation of its passage should be given to the British authorities within twenty-four hours, but that, in other cases, "the existing practice should be followed and concurrence of the British authorities should be obtained by prior notice as heretofore."

As regards arms and ammunition, the Treaty of 1878 and rules framed under the Indian Arms Act of 1878 prohibited the importation of arms, ammunition or military stores from Portuguese India and its export to Portuguese India without a special licence. Subsequent practice showed that this provision applied to transit between Daman and the enclaves.

The finding of the Court that the practice established between the Parties had required for the passage of armed forces, armed police and arms and ammunition the permission of the British or Indian authorities rendered it unnecessary for the Court to determine whether or not, in the absence of the practice that actually prevailed, general international custom or general principles of law recognized by civilized nations, which had also been invoked by Portugal, could have been relied upon by Portugal in support of its claim to a right of passage in respect of these categories. The Court was dealing with a concrete case having special features: historically the case went back to a period when, and related to a region in which, the relations between neighbouring States were not regulated by precisely formulated rules but were governed largely by practice: finding a practice clearly established between two States, which was accepted by the Parties as governing the relations between them, the Court must attribute decisive effect to that practice. The Court was, therefore, of the view that no right of passage in favour of Portugal involving a correlative obligation on India had been established in respect of armed forces, armed police and arms and ammunition.

Having found that Portugal had, in 1954, a right of passage in respect of private persons, civil officials and goods in general, the Court lastly proceeded to consider whether India had acted contrary to its obligation resulting from Portugal's right of passage in respect of any of these categories. Portugal had not contend