Analysis: By an ancient usage among civilized nations,
The PAQUETE HABANA CASE
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?
Paquete Habana – Case Brief 175 U.S. 677
 (1900)
Supreme Court of the United States, 1900
 Judge of the English High Court of Admiralty, was one
Facts: Two fishing vessels that were fishing out of
Havana, Cuba, sailed under a Spanish flag were fishing
off the Cuba coast. They were owned a Spanish subject
that was born in Cuba and living in Havana. The vessels
were commanded by a subject of Spain, also residing in
Havana. Their cargo consisted of fresh fish, caught by
their crew. The fish were kept alive to be sold alive. Until
stopped by the blockading squadron they had no
knowledge of the existence of the war or of any
blockade. She had no arms or ammunition on board, and
made no attempt to run the blockade after she knew of
its existence, nor any resistance at the time of the capture.

 Procedural History: DC for the Southern District of
Florida condemned the two fishing vessels and their
cargos as prizes of war.
 occupations are for the common subsistence and benefit
Issues: Whether a court may look to established rules of
other nations when their own nation lacks any treaty,
legislation, proclamation, or instruction that is on point
for a particular matter?
 the enemy, into whose power, by the events of war, they
beginning centuries ago, and gradually ripening into a
rule of international law, coast fishing vessels, pursuing
their vocation of catching and bringing in fresh fish, have
been recognized as exempt, with their cargoes and crews,
from capture as prize of war.

In 1403 and 1406 Henry IV ordered that fisherman of
foreign nations become under his special protection so
that the fisherman in the course of their duty would not
be hindered, interfered, or molested by any of his
subjects.

The doctrine which exempts coast fishermen, with their
vessels and cargoes, from capture as prize of war, has
been familiar to the United States from the time of the
War of Independence.
 On June 5, 1779, Louis XVI.,
our ally in that war, addressed a letter to his admiral,
informing him that the wish he had always had of
alleviating, as far as he could, the hardships of war, had
directed his attention to that class of his subjects which
devoted itself to the trade of fishing, and had no other
means of livelihood; that he had thought that the example
which he should give to his enemies, would determine
them to allow to fishermen the same facilities which he
should consent to grant; and that he had therefore given
orders to the commanders of all his ships not to disturb
English fishermen, nor to arrest their vessels laden with
fresh fish, provided they had no offensive arms, and were
not proved to have made any signals creating a suspicion
of intelligence with the enemy; and the admiral was
directed to communicate the King’s intentions to all
officers under his control.

Among the standing orders made by Sir James Marriott,
of April 11, 1780, by which it was ‘ordered that all
causes of prize of fishing boats or vessels taken from the
enemy may be consolidated in one monition, and one
sentence or interlocutory, if under 50 tons burthen, and
not more than 6 in number.’ But by the statements of his
successor, and of both French and English writers, it
apears that England, as well as France, during the
American Revolutionary War, abstained from
interfering with the coast fisheries.
 In the treaty of
1785 between the United States and Prussia, provided
that, if war should arise between the contracting parties,
‘all women and children, scholars of every faculty,
cultivators of the earth, artisans, manufacturers, and
fishermen, unarmed and inhabiting unfortified towns,
villages, or places, and in general all others whose
of mankind, shall be allowed to continue their respective
employments, and shall not be molested in their persons,
nor shall their houses or goods be burnt or otherwise
destroyed, nor their fields wasted by the armed force of
may happen to fall; but if anything is necessary to be a voyage of scientific discovery, philanthrophy, or
taken from them for the use of such armed force, the religious mission.’
 Wheaton observes: ‘Without
same shall be paid for at a reasonable price.’ Here was
wishing to exaggerate the importance of these writers, or
the clearest exemption from hostile molestation or
to substitute, in any case, their authority for the
seizure of the persons, occupations, houses, and goods of
principles of reason, it may be affirmed that they are
unarmed fishermen inhabiting unfortified places.
 generally impartial in their judgment. They are witnesses
of the sentiments and usages of civilized nations, and the
Wheaton’s International Laws, says: ‘In many treaties
weight of their testimony increases every time that their
and decrees, fishermen catching fish as an article of food
authority is invoked by statesmen, and every year that
are added to the class of persons whose occupation is not
passes without the rules laid down in their works being
to be disturbed in war.’
 The English government, soon
impugned by the avowal of contrary principles.’

afterwards, more than once unqualifiedly prohibited the
Chancellor Kent says: ‘In the absence of higher and more
molestation of fishing vessels employed in catching and
authoritative sanctions, the ordinances of foreign states,
bringing to market fresh fish. On May 23, 1806, it was
the opinions of eminent statesmen, and the writings of
‘ordered in council that all fishing vessels under Prussian
distinguished jurists, are regarded as of great
and other colors, and engaged for the purpose of catching
consideration on questions not settled by conventional
fish and conveying them fresh to market, with their
law.
crews, cargoes, and stores, shall not be molested on their
fishing voyages and bringing the same to market.
 In cases where the principal jurists agree, the
presumption will be very great in favor of the solidity of
In the war with Mexico, in 1846, the United States their maxims; and no civilized nation that does not
recognized the exemption of coast fishing boats from arrogantly set all ordinary law and justice at defiance will
capture. It appears that Commodore Conner, venture to disregard the uniform sense of the established
commanding the Home Squadron blockading the east writers on international law.’
 This review of the
coast of Mexico, on May 14, 1846, wrote a letter to Mr.
precedents and authorities on the subject appears to us
Bancroft, the Secretary of the Navy, inclosing a copy of
abundantly to demonstrate that at the present day, by the
the commodore’s ‘instructions to the commanders of the
general consent of the civilized nations of the world, and
vessels of the Home Squadron, showing the principles to
independently of any express treaty or other public act,
be observed in the blockade of the Mexican ports,’ one
it is an established rule of international law, founded on
of which was that ‘Mexican boats engaged in fishing on
considerations of humanity to a poor and industrious
any part of the coast will be allowed to pursue their
order of men, and of the mutual convenience of
labors unmolested;’ and that on June 10, 1846, those
belligerent states, that coast fishing vessels, with their
instructions were approved by the Navy Department.
 implements and supplies, cargoes and crews, unarmed
and honestly pursuing their peaceful calling of catching
In the treaty of peace between the United States and
and bringing in fresh fish, are exempt from capture as
Mexico, in 1848, were inserted the very words of the
earlier treaties with Prussia, already quoted, forbidding prize of war.
 This rule of international law is one which
the hostile molestation or seizure in time of war of the prize courts administering the law of nations are bound
persons, occupations, houses, or goods of fishermen.
 to take judicial notice of, and to give effect to, in the
absence of any treaty or other public act of their own
France in the Crimean war in 1854, and in her wars with government in relation to the matter.

Italy in 1859 and with Germany in 1870, by general
orders, forbade her cruisers to trouble the coast fisheries, Holding: Yes

or to seize any vessel or boat engaged therein, unless
naval or military operations should make it necessary. Judgment: Ordered, that the decree of the District Court
be reversed, and the proceeds of the sale of the vessel,
Since the English orders in council of 1806 and 1810,
together with the proceeds of any sale of her cargo, be
before quoted, in favor of fishing vessels employed in
catching and bringing to market fresh fish, no instance restored to the claimant, with damages and costs.

has been found in which the exemption from capture of
Rule: A court may look to established rules of other
private coast fishing vessels honestly pursuing their
nations when their own nation lacks any treaty,
peaceful industry has been denied by England or by any
legislation, proclamation, or instruction that is on point
other nation. And the Empire of Japan by an ordinance
promulgated at the beginning of its war with China in for a particular matter.
 Where there is no treaty and no
August, 1894, established prize courts, and ordained that controlling executive or legislative act or judicial
‘the following enemy’s vessels are exempt from decision, resort must be had to the customs and usages
detention,’ including in the exemption ‘boats engaged in of civilized nations, and, as evidence of these, to the
coast fisheries,’ as well as ‘ships engaged exclusively on works of jurists and commentators who by years of labor,
research, and experience have made themselves
peculiarly well acquainted with the subjects of which
they treat.

Dissent or Concurrence: Mr. Chief Justice Fuller, with
whom concurred Mr. Justice Harlan and Mr. Justice
McKenna: The district court held these vessels and their
cargoes liable because not ‘satisfied that as a matter of
law, without any ordinance, treaty, or proclamation,
fishing vessels of this class are exempt from seizure. This
court holds otherwise, not because such exemption is to
be found in any treaty, legislation, proclamation, or
instruction granting it, but on the ground that the vessels
were exempt by reason of an established rule of
international law applicable to them, which it is the duty
of the court to enforce.
International Court of Justice Contentious
Case: The North Sea Continental Shelf Cases
(Germany/Denmark; Germany/Netherlands).
Year of Decision: 1969.
Note: This post discusses only aspects of the
case related to treaty and customary
international law.
Overview: The jurisprudence of the North
Sea Continental Shelf Cases sets out the dual
requirement for the formation of customary
international law: (1) State practice (the
objective element) and (2) opinio juris (the
subjective element). In these cases,
the Court explained the criteria necessary to
establish State practice – widespread and
representative participation.
It highlighted that the practices of those States
whose interests were specially affected by the
custom were especially relevant in the
formation of customary law. It also held that
uniform and consistent practice was necessary
to demonstrate opinio juris – opinio juris is the
belief that State 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 Court to decide the
principles and rules of international law that
are applicable to the above delimitation
because 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 was 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 binding on
Germany. 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.
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
wanted 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.
North Sea Continental Shelf
Cases (commons.wikimedia.org)
Questions before the Court (as relevant to this
post):
Is Germany under a legal obligation to accept
the equidistance-special circumstances
principle, contained in Article 6 of the Geneva
Convention on the Continental Shelf of 1958,
either as a customary international law rule or
on the basis of the Geneva Convention?
The Court’s Decision:
The use of the equidistance method had not
crystallised into customary law and the
method was not obligatory for the delimitation
of the areas in the North Sea related to the
present proceedings.
Relevant Findings of the Court:
1. 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 stated
that unless the parties had already agreed on
a method for delimitation or unless special
circumstances exist, the equidistance method
would apply. Germany had signed, but not
ratified, the Geneva Convention, while
Netherlands and Denmark were parties to the
Convention. The latter two States argued that
while Germany is not a party to the Convention
(not having ratified it), she was 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
said that only a ‘very definite very consistent
course of conduct on the part of a State would
allow the Court to presume that the State had
somehow become bound by a treaty (by a
means other than in the 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 (in other
words, 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 continental shelf delimitation’ and that it
contained in Article 6). existed independently of the Convention.
Therefore, they argued, Germany is bound by
3. Note: The Vienna Convention on the Law of the subject matter of Article 6 by way of
Treaties of 1969 (VCLT), which came into force customary international law.
in 1980, discusses in more detail treaty
obligations of third States (those States who 7. To decide if the equidistance principle
are not parties to the treaty). It clearly bound Germany by way of customary
stipulates that obligations arise for third States international law, the Court examined (1) the
from a provision of a treaty only if (1) the status of the principle contained in Article 6 as
actual parties to the treaty intended the it stood when the Convention was being drawn
provision to create obligations for third States; up; and (2) its status after the
and (2) third State expressly accept Convention came into force.
those obligations in writing (Article 35 of the
VCLT). The VCLT was not in force when the (a) What was the customary law status of
Court deliberated on this case. However, Article 6 at the time of drafting the
as seen above, the Court’s position Convention?
is consistent the VCLT. (See the relevant
8. The Court held that the principle of
provisions of the Vienna Convention on the
equidistance, as contained in Article 6 did not
Law of Treaties).
form a part of existing or emerging customary
4. The Court held that the existence of a international law at the time of drafting the
situation of estoppel would have allowed Convention. The Court supported this finding
Article 6 to become binding on Germany – but based on (1) the hesitation expressed by the
held that Germany’s action did not support an drafters of the Convention, the International
argument for estoppel. The Court also held Law Commission, on the inclusion of Article 6
that the mere fact that Germany may not have into the Convention and (2) the fact
specifically objected to the equidistance that reservations to Article 6 was permissible
principle as contained in Article 6, is not under the Convention. The Court held:
sufficient to state that the principle is now
“… Article 6 is one of those in respect of
binding upon it.
which, under the reservations article of the
5. In conclusion, the Court held that Germany Convention (Article 12) reservations may be
had not acted in any manner so as to incur made by any State on signing, ratifying or
obligations contained in Article 6 of the acceding, – for speaking generally, it is a
Geneva Convention. The equidistance–special characteristic of purely conventional rules and
circumstances rule was not binding on obligations that, in regard to them, some
Germany by way of treaty law. faculty of making unilateral reservations may,
within certain limits, be admitted; whereas
2. Nature of the customary international law this cannot be so in the case of general or
obligation: Is Germany bound by the customary law rules and obligations which, by
provisions of Article 6 of the Geneva their very nature, must have equal force for
Convention in so far as they reflect customary all members of the international community,
international law? and cannot therefore be the subject of any
right of unilateral exclusion exercisable at will
6. Netherlands and Denmark argued that by any one of them in its own favor…. The
Article 6 also reflected ‘the accepted rule of normal inference would therefore be that any
general international law on the subject of 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 Court’s careful
differentiation)
(b) 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
Convention in a manner so as to fulfil the
criteria specified below), or because
subsequent State practice (i.e. even if an
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 relating to international
humanitarian law in terms of
latter’s authority as a pronouncement
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 (in this case, they were coastal States)
(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 or widespread.
Duration
12. 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. It held that:
“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
the of a new rule of customary international law
on the basis of what was originally a purely
of 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
the or legal obligation is involved.”
of
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
were 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 that 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
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.” (Para 77).
15. 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.
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Name of the Case: Asylum Case (Colombia/Peru); Year
of the decision: 1950; and Court: ICJ.
Overview:
Colombia granted asylum to a Peruvian, accused of
taking part in a military rebellion in Peru. Was Colombia
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 Court’s 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 Torre’s 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 (Colombia) 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 Colombia 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 Colombia, 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
(Colombia) 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
refugee…but 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. Torre’s
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.”
NB: The court also discussed the difference between
extradition and granting of asylum – you can read more
on this in pp. 12 – 13 of the judgment. The discussions
on the admissibility of the counter claim of Peru are set
out in pp. 18 – 19.
International Court of Justice Contentious Case: Case
Concerning the Military and Paramilitary Activities In
and Against Nicaragua (Nicaragua vs United States).
Year of Decision: 1986.
Click here for a summary of the Court’s deliberations
on aspects relating to the use of force, non-intervention,
and issues relating to sovereignty.
Overview:
This case was about military and paramilitary activities
conducted by, or with the assistance of, the United States
against Nicaragua from 1981 to 1984.
Due to a United States’ multilateral treaty reservation,
(the Vandenberg reservation), the Court could not rely
on the United Nations Charter and was compelled to
base its findings in relation to the use of force customary
and general principles of international law. As a result,
the Nicaragua case developed a significant
jurisprudence on customary international law relating to
(1) the use of force and non-intervention, (2) elements
necessary to form customary international law, and (3)
the relationship between customary and treaty law.
Controversial aspects of the decision included (1) the
Court’s methodology used to determine that the
principle of non-intervention had attained customary
law status, (2) the Court’s reliance on resolutions of the
General Assembly as a source of opinio juris and (3) the
Court’s reliance on multilateral treaties to determine
customary international law despite the
Vandenberg reservation.
Click here for Facts relating to the Case.
Questions before the Court:
In Nicaragua vs United States, the Court discussed,
amongst others:
(1) Was the Court competent to give its determination
based on customary international law when there was a
multilateral treaty reservation?
(2) What is the relationship between treaty and
customary international law?
(3) What are the elements necessary to form customary
international law?
(4) What is the customary international law status of the
principle of non-intervention?
Relevant findings of the Court:
(1) The Court held that multilateral treaty reservations
cannot preclude the Court from relying on customary
international law, because customary law exists
independently of treaty law. (paras 172 – 178)
The Court held that the issues raised by Nicaragua –
relating the use of force and self defense –
were regulated both by customary law and treaty law, in
particular the Charter of the United Nations. Yet, the
United States had entered into a multilateral
treaty reservation, which did not, for example, allow the
Court to rely on the Charter of the United Nations. The
Court sought to rely, instead, exclusively on customary
law relating to the use of force. In doing so, it held that
multilateral treaty reservations cannot preclude the
Court from relying on customary international law
because, even if treaty provisions and customary law
deal with the same subject matter, customary law exists
independently of treaty law.
(2) Relationship between treaty and customary
international law
The Court examined the relationship in two contexts to
demonstrate that customary and treaty law co-exist:
(a) where the customary law principles were identical
to treaty provisions; and
(b) where there were different rights or obligations
under customary and treaty law in respect of the same
subject matter.
(a) Situations where the customary law principles were
identical to treaty provisions.
1. In situations where customary law principles were
identical to treaty provisions, the Court held that even if
principles of customary international law were
subsequently codified into treaties, they continue to exist
side by side. For parties to treaties, both customary and
treaty law apply. If, for some reason, the treaty ceases to
apply between treaty parties, the identical customary law
provision continues to apply between them (para 178).
2. The argument that customary international law exists
alongside treaty law was 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. The Court held that Article
6 did not reflect customary law at the time of the
codification, and had not 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 its finding that principles of customary
international law can exist side by side with identical
treaty law provisions and that treaties do not supervene
in a manner where the customary law ceases to exist
(para 177).
3. 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 with respect
to the same subject matter. For example, the Court said
that the term “inherent” in Article 51 recognised that
customary law rights of self-defense existed alongside
treaty provisions.
4. Rules containing the same content could also 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
provisions that reflect existing customary law. For
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, while the failure to report did not
result in a breach of customary international law, the
Court indicated that the United State’s failure to observe
this requirement contradicted her claim to be acting in
self defense (see paras 200, 235).
(b) Situations where customary and treaty law rights and
obligations differed in respect of the same subject
matter.
1. The Court discussed situations where customary
international law and treaty law provisions were not
identical. For example, the Court stated that concepts
such as 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 Court held:
“…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.”
2. In case of a divergence between treaty law and
customary international law, for the parties to a treaty,
amongst themselves, the treaty provisions apply as lex
specialis. (see paras 180 and 181).
3. The Court explained the relationship between the
Charter of the United Nations and customary
international law on the use of force and self defense 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 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
Court’s 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).”
4. The Court concluded that principles such as those of
the non-use of force, non-intervention, respect for the
independence and territorial integrity of States, right of
collective self defense 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.” (paras 191-
193).
_____________________________________________
___________________________________________
Analysis: 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 separate 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. Then the
two regimes may become 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.
_____________________________________________
___________________________________________
(3) The Court held that opinio juris and State practice
remain necessary elements to determine the existence
of customary international law
1. In the Nicaragua case, as 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 norm (para 207).
2. On State practice, the jurisprudence of the Nicaragua
case contained several important clarifications in
respect of inconsistent State practice (para 186). The
Court held that:
(a) For a customary rule to come into force, it is not
necessary to have complete consistency in State
practice in respect of the rule.
(b) Inconsistent State practice does not affect the
formation or existence of a customary principle so long
as the inconsistency is justified as a breach of the rule.
(c) This attempt at justifying a violation would only
make the rule’s customary law nature stronger.
2. On opinio juris, the Nicaragua case jurisprudence
elaborated on how to deduct opinio juris from acts of
State. The Court held that the following reflected opinio
juris:
(a) the attitude of States towards certain General
Assembly resolutions.
“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 themselves…It 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”
(b) Statements by State representatives.
(c) Obligations undertaken by States in international
forums (the Court provided the example of the
Conference on Security and Co-operation in Europe,
Helsinki)
(d) The International Law Commission’s findings that a
concept amounts to a customary law principle.
(e) Multilateral conventions.
(4) The principle of non-intervention is customary
international law.
1. 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… 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.
3. On State practice, the Court noted that even if
“examples of trespass against this principle (of non-
intervention) are not infrequent” (para 202), this did not
affect the customary law nature of the prohibition on
non-intervention. The Court held:
“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.”
4. On opinio juris, Court went on to hold, as before,
that for a new customary rule to be formed, Sate
practice must be accompanied by the opinio juris. The
Court held:
“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… It (the Court) 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).
5. 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).”
6. The Court held 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).
_____________________________________________
___________________________________________
Analysis: General Assembly and Opinio Juris
Some commentators criticized the Court for its
reliance on General Assembly resolutions to deduct
opinio juris.They argued that voting patterns in the
United Nations are often guided by policy and not by
legal considerations. 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.
Their 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). See
also the Nuclear Weapons Advisory Opinion where the
Court, once again, reflected on how General Assembly
resolutions contribute towards the formation of
customary law.
: in response to Nicaragua’s acts of aggression against
The case involved military and paramilitary
activities carried out by the United States against
Nicaragua from 1981 to 1984. Nicaragua asked the
Court to find that these activities violated international
law.
Facts of the Case:
In July 1979, the Government of President Somoza was
replaced by a government installed by Frente Sandinista
de Liberacion Nacional (FSLN). Supporters of the
former Somoza Government and former members of the
National Guard opposed the new government. The US –
initially supportive of the new government – changed its
attitude when, according to the United States, it found
that Nicaragua was providing logistical support and
weapons to guerrillas in El Salvador. In April 1981 the
United States stopped its aid to Nicaragua and in
September 1981, according to Nicaragua, the United
States “decided to plan and undertake activities directed
against Nicaragua”.
The armed activities against the new Government was
carried out mainly by
(1) Fuerza Democratica Nicaragüense (FDN), which
operated along the border with Honduras, and
(2) Alianza Revolucionaria Democratica (ARDE),
which operated along the border with Costa Rica. Initial
US support to these groups fighting against the
Nicaraguan Government (called “contras”) was covert.
Later, the United States officially acknowledged its
support (for example: In 1983 budgetary legislation
enacted by the United States Congress made specific
provision for funds to be used by United States
intelligence agencies for supporting “directly or
indirectly military or paramilitary operations in
Nicaragua”).
Nicaragua also alleged that the United States is
effectively in control of the contras, the United
States devised their strategy and directed their tactics,
and that the contras were paid for and directly controlled
by the United States. Nicaragua also alleged that some
attacks against Nicaragua were carried out, directly, by
the United States military – with the aim to overthrow
the Government of Nicaragua. Attacks against
Nicaragua included the mining of Nicaraguan ports, and
other attacks on ports, oil installations, and a naval base.
Nicaragua alleged that aircrafts belonging to the United
States flew over Nicaraguan territory to gather
intelligence, supply to the contras in the field, and to
intimidate the population.
The United States did not appear before the ICJ at the
merit stages, after refusing to accept the ICJ’s
jurisdiction to decide the case. The United States at the
jurisdictional phase of the hearing, however, stated that
it relied on an inherent right of collective self-defence
guaranteed in A. 51 of the UN Charter when it provided
“upon request proportionate and appropriate
assistance…” to Costa Rica, Honduras, and El Salvador
those countries (paras 126, 128).

F1: Map of Nicaragua, Costa Rica, Honduras and El
Salvador. Source: Google Earth
Questions before the Court:
1. Did the United States violate 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 when it encouraged, supported, and
aided the military and paramilitary activities
against Nicaragua?
2. Did the United States violate its customary
international law obligation not to use force
against another State, when it directly attacked
Nicaragua in 1983 and 1984 and when its
activities in point (1) above resulted in the use
of force?
3. Can the military and paramilitary activities that
the United States undertook in and against
Nicaragua be justified as collective self-
defence?
4. Did the United States breach its customary
international law obligation not to violate the
sovereignty of another State, when it directed
or authorized its aircrafts to fly over
the territory of Nicaragua and because of acts
referred to in (2) above?
5. Did the United States breach its customary
international law obligations not to violate the
sovereignty of another State, not to intervene in
its affairs, not to use force against another
State and not to interrupt peaceful maritime
commerce, when it laid mines in the internal
waters and in the territorial sea of Nicaragua?
The Court’s Decision:
The United States violated customary international law
in relation to (1), (2), (4) and (5) above. On (3), the Court
found that the United States could not rely on collective
self-defence to justify its use of force against Nicaragua.
Relevant Findings of the Court:
1. The Court held that the United States violated its
customary international law obligation not to use
force against another State when its activities with
the contras resulted in the threat or use of force (see
paras 191-201).
The Court held that:
 The prohibition on the use of force is found both
in Article 2(4) of the Charter of the United
Nations (UN Charter) and in customary
international law.
 In a controversial finding the Court sub-classified
the use of force as:
(1) “most grave forms of the use of force” (i.e. those
that constitute an armed attack); and
(2) “other less grave forms” of the use of force (i.e.
organizing, instigating, assisting, or participating in acts
of civil strife and terrorist acts in another State – when
the acts referred to involve a threat or use of force, but
not amounting to an armed attack). (Para 191),
 The United States violated the customary
international law prohibition on the use of force
when it laid mines in Nicaraguan ports. It also
violated this prohibition when it attacked
Nicaraguan ports, oil installations, and a naval
base (see below). The United States could only
justify its action on the basis of collective self-
defence, if certain criteria were met
(these criteria are discussed below).
 The United States violated the customary
international law prohibition on the use of force
when it assisted the contras by “organizing or
encouraging the organization of irregular forces
and armed bands… for incursion into the
territory of another state” and participated “in
acts of civil strife…in another State” and when
these acts involved the threat or use of force.
 The supply of funds to the contras did not violate
the prohibition on the use of force. On the
contrary, Nicaragua had previously argued
before the Court that the United States
determined the timing of offensives against
Nicaragua when it provided funds to
the contras. The Court held that “…it does not
follow that each provision of funds by the United
States was made to set in motion a particular
offensive, and that that offensive was planned
by the United States.” The Court held further
that the arming and training of the contras and
the supply of funds, in itself, only amounted to
acts of intervention in the internal affairs of
Nicaragua and did not violate the prohibition on
the use of force (para 227) (again, this aspect
will be discussed in detail below).
2. The Court held that the United States violated its
customary international law obligation not to use
force against another State when it directly attacked
Nicaragua in 1983 and 1984 (see paras 187 – 201).
Note: A controversial but interesting aspect of the
Court’s judgement was its definition of an armed attack.
The Court held that an armed attack included:
(1) action by regular armed forces across an
international border; and
(2) “the sending by or on behalf of a State of armed
bands, groups, irregulars or mercenaries, which carry
out acts of (sic) armed force against another State of
such gravity as to amount to (inter alia) an actual armed
attack conducted by regular forces, or its (the State’s)
substantial involvement therein”.
Note also that that he second point somewhat resembles
Article 3(g) of the UNGA Resolution 3314 (XXIX) on
the Definition of Aggression.
The Court further held that:
 Mere frontier incidents will not considered as
armed attacks, unless, because of its scale and
effects, it would have been classified as an
armed attack had it been carried out by regular
forces.
 Assistance to rebels by providing weapons or
logistical support did not constitute an armed
attack. Instead, it can be regarded as a threat or
use of force or an intervention in the internal or
external affairs of other States (see paras 195,
230).
 Under Article 51 of the UN Charter and under CIL
– self-defence is only available against a use of
force that amounts to an armed attack (para
211).
Note: In in the ICJ’s Case Concerning Oil
Platforms and the ICJ’s Advisory Opinion on the Legal
Consequences of of the Construction of a Wall in the
Occupied Palestinian Territory (hereinafter called the
Palestine wall case) the ICJ confirmed the definition
of an “armed attack” as proposed in the Nicaragua
case. Draft Articles on State Responsibility,prepared by
the International Law Commission, provides significant
guidance as to when acts of non-State actors may be
attributed to States. These articles, together with recent
State practice relating attacks on terrorists operating
from other countries may have widened the scope of an
armed attack, and consequently, the right of self defence,
envisaged by the ICJ. (for example, see discussion
surrounding the United States’ attacks in Afghanistan
and Iraq) See also a paper by Max Plank Institute on
this topic (2017).
F 2. The most serious use of force and its
consequences. Full diagram is here.
3. The Court held that the United States could not
justify its military and paramilitary activities on the
basis of collective self-defence.
Note that Article 51 of the UN Charter sets out the treaty
based requirements on the exercise of the right of self-
defense. It states:
“Nothing in the present Charter shall impair
the inherent right of individual or collectiveself-
defence if an armed attack occurs against a Member of
the United Nations, until the Security Council has
taken measures necessary to maintain international
peace and security. Measures taken by Members in the
exercise of this right of self-defence shall
be immediately reported to the Security Council.”
The Court held that:
 Customary international law allows for
exceptions to the prohibition on the use of force,
which includes the right to individual or
collective self-defence (see here for a difference
between individual and collective self
defense). The United States, at an earlier stage
of the proceedings, had also agreed that the UN
Charter acknowledges the existence of this
customary international law right when it talks
of the “inherent” right under Article 51 of the
Charter (para.193).
 When a State claims that it used force in
collective self-defence, the Court would
examine the following:
(1) Whether the circumstances required for the exercise
of self-defence existed; and
(2) Whether the steps taken by the State, which was
acting in self-defence, corresponds to the requirements
of international law.
 Under international law, several
requirements must be met for a State to
exercise the right of individual or collective self-
defence:
(1) A State must have been the victim of an armed
attack;
(2) That State must declare itself as a victim of an
armed attack. The assessment on whether an armed
attack had taken place or not, is done by the State who
was subjected to the attack. A third State cannot
exercise a right of collective self-defence based that
third State’s own assessment;
(3) In the case of collective self-defence, the victim
State must request for assistance. The Court held that
“there is no rule permitting the exercise of collective
self-defence in the absence of a request by the State
which regards itself as the victim of an armed attack”;
(4) A State that is attacked, does not, under customary
international law, have the same obligation as under
Article 51 of the UN Charter to report to the Security
Council that an armed attack happened – but the Court
held that “the absence of a report may be one of the
factors indicating whether the State in question was
itself convinced that it was acting in self-defence”
(see paras 200, 232 -236).
“…Whatever influence the Charter may have had on
customary international law in these matters, it is clear
that in customary international law it is not a condition
of the lawfulness of the use of force in self-defence that
a procedure so closely dependent on the content of a
treaty commitment and of the institutions established by
it, should have been followed. On the other hand, if self-
defence is advanced as a justification for measures which
would otherwise be in breach both of the principle of
customary international law and of that contained in the
Charter, it is to be expected that the conditions of the
Charter should be respected. Thus for the purpose of
enquiry into the customary law position, the absence of
a report may be one of the factors indicating whether the
State in question was itself convinced that it was acting
in self-defence (See paras 200, 232 -236)”.
 The Court, then, looked extensively into the
conduct of Nicaragua, El Salvador, Costa Rica,
and Honduras to determine if (1) an armed
attack was undertaken by Nicaragua against the
three countries, which in turn would (2)
necessitate those countries to act in self-
defence against Nicaragua (paras 230 – 236).
The Court noted that (1) none of the countries
who were allegedly subject to an armed attack
by Nicaragua declared themselves as victims of
an armed attack; (2) they did not request
assistance from the United States to exercise its
right of self-defence; (3) the United States did
not claim that when it used force, it was acting
under Article 51 of the UN Charter; and (4) the
United States did not report that it was acting in
self-defense to the Security Council. The Court
concluded that, based on the above, the United
States cannot justify its use of force as collective
self-defence.
 In any event, the Court held that the criteria
relating to necessity and proportionality, that
is required to be met when using force in self-
defence – were also not fulfilled (para 237).
4. The Court held that the United States breached its
CIL obligation not to intervene in the affairs of
another State, when it trained, armed, equipped and
financed the contra forces or encouraged, supported
and aided the military and paramilitary activities
against Nicaragua.
The Court held that:
 The principle of non-intervention requires that
every State has a right to conduct its affairs
without outside interference. In other words,
the principle “…forbids States or groups of
States to intervene directly or indirectly in
internal or external affairs of other States.” This
is a corollary of the principle of sovereign
equality of States. The Court held that:
“A prohibited intervention must accordingly be one
bearing on matters in which each State is permitted, by
the principle of State sovereignty to decide freely. One
of these is the choice of a political, economic, social
and cultural system, and the formulation of foreign
policy. Intervention is wrongful when it uses methods
of coercion in regard to such choices, which must
remain free ones. The element of coercion, which
defines, and indeed forms the very essence of,
prohibited intervention, is particularly obvious in the
case of an intervention which uses force, either in the
direct form of military action, or in the indirect form of
support for subversive or terrorist armed activities
within another State (para 205).”
 Nicaragua stated that the activities of the
United States were aimed to overthrow the
government of Nicaragua, to substantially
damage the economy and to weaken the
political system with the aim to coerce the
Government of Nicaragua to accept various
political demands of the United States. The
Court concluded that:
“…first, that the United States intended, by its support
of the contras, to coerce the Government of Nicaragua in
respect of matters in which each State is permitted, by
the principle of State sovereignty, to decide freely (see
paragraph 205 above) ; and secondly that the intention
of the contras themselves was to overthrow the present
Government of Nicaragua… The Court considers that in
international law, if one State, with a view to the
coercion of another State, supports and assists armed
bands in that State whose purpose is to overthrow the
government of that State, that amounts to an intervention
by the one State in the internal affairs of the other,
whether or not the political objective of the State giving
such support and assistance is equally far reaching.”
  The financial support, training, supply of
weapons, intelligence and logistic support given
by the United States to the contras violated the
principle of non-interference. “…(N)o such
general right of intervention, in support of an
opposition within another State, exists in
contemporary international law”, even if such a
request for assistance is made by an opposition
group of that State (see para 246 for more).
F 3. The prohibition on non intervention. For full
diagram, click here.
 However, in a controversial finding, the Court
held that the United States did not devise the
strategy, direct the tactics of the contras or
exercise control on them in manner so as to
make their acts committed in violation of
international law imputable to the United States
(see in this respect “Determining US
responsibility for contra operations under
international law” 81 AMJIL 86). The Court
concluded that “a number of military and
paramilitary operations of the contras were
decided and planned, if not actually by United
States advisers, then at least in close
collaboration with them, and on the basis of the
intelligence and logistic support which the
United States was able to offer, particularly the
supply aircraft provided to the contras by the
United States” but not all contra operations
reflected strategy and tactics wholly devised by
the United States.
“…the various forms of assistance provided to the
contras by the United States have been crucial to the
pursuit of their activities, but is insufficient to
demonstrate their complete dependence on United States
aid. On the other hand, it indicates that in the initial years
of United States assistance the contra force was so
dependent. However, whether the United States
Government at any stage devised the strategy and
directed the tactics of the contras depends on the extent
to which the United States made use of the potential for
control inherent in that dependence. The Court already
indicated that it has insufficient evidence to reach a
finding on this point. It is a fortiori unable to determine
that the contra force may be equated for legal purposes
with the forces of the United States…The Court has
taken the view (paragraph 110 above) that United States
participation, even if preponderant or decisive, in the
financing, organizing, training, supplying and equipping
of the contras, the selection of its military or paramilitary
targets, and the planning of the whole of its operation, is
still insufficient in itself, on the basis of the evidence in
the possession of the Court, for the purpose of attributing
to the United States the acts committed by the contras in
the course of their military or paramilitary operations in
Nicaragua. All the forms of United States participation
mentioned above, and even the general control by the
respondent State over a force with a high degree of
dependency on it, would not in themselves mean,
without further evidence, that the United States directed
or enforced the perpetration of the acts contrary to
human rights and humanitarian law alleged by the
applicant State. Such acts could well be committed by
members of the contras without the control of the United
States. For this conduct to give rise to legal responsibility
of the United States, it would in principle have to be
proved that that State had effective control of the military
or paramilitary.”
 Interesting, however, the Court also held that
providing “…humanitarian aid to persons or
forces in another country, whatever their
political affiliations or objectives, cannot be
regarded as unlawful intervention, or as in any
other way contrary to international law” (para
242).
 In the event one State intervenes in the affairs
of another State, the victim State has a right to
intervene in a manner that is short of an armed
attack (210).
“While an armed attack would give rise to an entitlement
to collective self-defence, a use of force of a lesser
degree of gravity cannot as the Court has already
observed (paragraph 211 above) produce any entitlement
to take collective countermeasures involving the use of
force. The acts of which Nicaragua is accused, even
assuming them to have been established and imputable
to that State, could only have justified proportionate
counter-measures on the part of the State which had been
the victim of these acts, namely El Salvador, Honduras
or Costa Rica. They could not justify counter-measures
taken by a third State, the United States, and particularly
could not justify intervention involving the use of force.”
F 4. The less grave forms of use of force and its
consequences. Full diagram is here.
5. The United States violated its customary
international law obligation not to violate the
sovereignty of another State, when it directed or
authorized its aircrafts to fly over Nicaraguan
territory and when it laid mines in the internal waters
of Nicaragua and its territorial sea.
 The Court examined evidence and found that in
early 1984 mines were laid in or close to ports of
the territorial sea or internal waters of
Nicaragua “by persons in the pay or acting ion
the instructions” of the United States and acting
under its supervision with its logistical
support. The United States did not issue any
warning on the location or existence of mines
and this resulted in injuries and increases in
maritime insurance rates.
 The Court found that the United States also
carried out high-altitude reconnaissance flights
over Nicaraguan territory and certain low-
altitude flights, complained of as causing sonic
booms. It held that a State’s sovereignty
extends to its internal waters, its territorial sea,
and the airspace above its territory. The United
States violated customary international law
when it laid mines in the territorial sea and
internal waters of Nicaragua and when it carried
out unauthorised overflights over Nicaraguan
airspace by aircrafts that belong to or was under
the control of the United States..
Portugal v India
Facts
Portugal held several small enclaves of territory within
India; one on the coast but the others inland. Portugal
claimed they had a right of passage to its inland
territories over Indian land which they alleged India
had interfered with.
Issue
does Portugal have a customary right over Indian
territory to its
Decision
A right of passage does exist in regional custom.
Reasons
India argued before the Court that practice between
only two states was not sufficient to form a local
custom. The Court rejected this reasoning, finding no
reason why a century and a quarter of practice based
on mutual rights and obligations was insufficient for
local custom to arise. This local practice, thus,
prevailed over any general rules.
Ratio
Local customary law can exist as long as the elements
in the North Sea Continental Shelf case are made
out.ujbuhn
RIGHT OF PASSAGE OVER INDIAN TERRITORY
CASE (Merits) Portugal v. India
ICJ Reports 1960, p.6
(Local Custom- Whether a local custom could be
established between only two States?)
Portugal claims a right of passage between
Daman and the enclaves, and between the
enclaves, across intervening Indian territory, to the
extent necessary for the exercise of its sovereignty
over the enclaves, subject to India’s right of
regulation and control of the passage claimed, and
without any immunity in Portugal’s favour. It claims
further that India is under obligation so to exercise
its power of regulation and control as not to prevent
the passage necessary for the exercise of
Portugal’s sovereignty over the enclaves.
India argues that the vague and contradictory
character of the right claimed by Portugal is proved
by Portugal’s admission that on the one hand the
exercise of the right is subject to India’s regulation
and control as the territorial sovereign, and that on
the other hand the right is not accompanied by any
immunity, even in the case of the passage of armed
forces.
There is no doubt that the day-to-day exercise of
the right of passage as formulated by Portugal, with
correlative obligation upon India, may give rise to
delicate questions of application, but that is not, in
the view of the Court, sufficient ground for holding
that the right is not susceptible of judicial
determination with reference to Article 38 (1) of the
Statute.
In support of its claim, Portugal relies on the
Treaty of Poona of 1779 and on sanads (decrees),
issued by the Maratha ruler in 1783 and 1785, as
having conferred sovereignty on Portugal over the
enclaves with the right of passage to them.
India objects on various grounds that what is
alleged to be the Treaty of 1779 was not validly
entered into and never became in law a treaty
binding upon the Marathas. It is sufficient to state
that the validity of a treaty concluded as long ago
as the last quarter of the eighteenth century, in the
conditions then prevailing in the Indian Peninsula,
should not be judged upon the basis of practices
and procedures which have since developed only
gradually. The Marathas themselves regarded the
Treaty of 1779 as valid and binding upon them, and
gave effect to its provisions. The Treaty is
frequently referred to as such in subsequent forma1
Maratha documents, including the two sanads of
1783 and 1785, which purport to have been issued
in pursuance of the Treaty. The Marathas did not at
any time cast any doubt upon the validity or binding
character of the Treaty.
India contends further that the Treaty and the two
sanads of 1783 and 1785 taken together did not
operate to transfer sovereignty over the assigned
villages to Portugal, but only conferred upon it, with
respect to the villages, a revenue grant of the value
of 12,000 rupees per annum called a jagir or
saranjam.
Article 17 of the Treaty is relied upon by Portugal
as constituting a transfer of sovereignty. From an
examination of the various texts of that article
placed before it, the Court is unable to conclude
that the language employed therein was intended
to transfer sovereignty over the villages to the
Portuguese. There are several instances on the
record of treaties concluded by the Marathas which
show that, where a transfer of sovereignty was
intended, appropriate and adequate expressions
like cession “in perpetuity” or “in perpetual
sovereignty” were used. The expressions used in
the two sanads and connected relevant documents
establish, on the other hand, that what was granted
to the Portuguese was only a revenue tenure called
a jagir or saranjam of the value of 12,000 rupees a
year. This was a very common form of grant in India
and not a single instance has been brought to the
notice of the Court in which such a grant has been
construed as amounting to a cession of territory in
sovereignty.
It is argued that the Portuguese were granted
authority to put down revolt or rebellion in the
assigned villages and that this is an indication that
they were granted sovereignty over the villages.
The Court does not consider that this conclusion is
well-founded. If the intention of the Marathas had
been to grant sovereignty over the villages to the
Portuguese, it would have been unnecessary for
the grant to recite that the future sovereign would
have authority to quel1 a revolt or rebellion in his
own territory. In the context in which this
authorization occurs, it would appear that the
intention was that the Portuguese would have
authority on behalf of the Maratha ruler and would
owe a duty to him to put down any revolt or rebellion
in the villages against his authority.
It therefore appears that the Treaty of 1779 and
the sanads of 1783 and 1785 were intended by the
Marathas to effect in favour of the Portuguese only
a grant of a jagir or saranjam, and not to transfer
sovereignty over the villages to them.
Having regard to the view that the Court has taken
of the character of the Maratha grant in favour of
the Portuguese, the situation during the Maratha
period need not detain the Court further in its
consideration of Portugal’s claim of a right of
passage to and from the enclaves. During the
Maratha period sovereignty over the villages
comprised in the grant, as well as over the
intervening territory between coastal Daman and
the villages, vested in the Marathas. There could,
therefore, be no question of any enclave or of any
right of passage for the purpose of exercising
sovereignty over enclaves. The fact that the
Portuguese had access to the villages for the
purpose of collecting revenue and in pursuit of that
purpose exercised such authority as had been
delegated to them by the Marathas cannot, in the
view of the Court, be equated to a right of passage
for the exercise of sovereignty.
It is clear from a study of the material placed
before the Court 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.
The British found the Portuguese in occupation of
the villages and exercising full and exclusive
administrative authority over them. They accepted
the situation as they found it and left the Portuguese
in occupation of, and in exercise of exclusive
authority over the villages. The Portuguese held
themselves out as sovereign over the villages. The
British did not, as successors of the Marathas,
themselves claim sovereignty, nor did they accord
express recognition of Portuguese sovereignty,
over them. The exclusive authority of the
Portuguese over the villages was never brought in
question. Thus Portuguese sovereignty over the
villages was recognized by the British in fact and by
implication and was subsequently tacitly
recognized by India. As a consequence the villages
comprised in the Maratha grant acquired the
character of Portuguese enclaves within Indian
territory.
For the purpose of determining whether Portugal
has established the right of passage claimed by it,
the Court must have regard to what happened
during the British and post-British periods. During
these periods, there had developed between the
Portuguese and the territorial sovereign with regard
to passage to the enclaves a practice upon which
Portugal relies for the purpose of establishing the
right of passage claimed by it.
With regard to Portugal’s claim of a right of
passage as formulated by it on the basis of local
custom, it is objected on behalf of India that no local
custom could be established between only two
States. It is difficult to see why the number of States
between which a local custom may be established
on the basis of long practice must necessarily be
larger than two. The Court sees no reason why long
continued practice between two States accepted by
them as regulating their relations should not form
the basis of mutual rights and obligations between
the two States.
As already stated, Portugal claims a right of
passage to the extent necessary for the exercise of
its sovereignty over the enclaves, without any
immunity and subject to the regulation and control
of India. In the course of the written and oral
proceedings, the existence of the right was
discussed with reference to the different categories
making up the right, namely private persons, civil
officials, goods in general, armed forces, armed
police, and arms and ammunition. The Court will
proceed to examine whether such a right as is
claimed by Portugal is established on the basis of
the practice that prevailed between the Parties
during the British and post-British periods in respect
of each of these categories.
It is common ground between the Parties that the
passage of private persons and civil officials was
not subject to any restrictions, beyond routine
control, during these periods. There is nothing on
the record to indicate the contrary.
Goods in general, that is to say, al1 merchandise
other than arms and ammunition, also passed
freely between Daman and the enclaves during the
periods in question, subject only, at certain times,
to customs regulations and such regulation and
control as were necessitated by considerations of
security or revenue. The general prohibition of the
transit of goods during the Second World War and
prohibitions imposed upon the transit of Salt and,
on certain occasions, upon that of liquor and
materials for the distillation of liquor, were specific
measures necessitated by the considerations just
referred to. The scope and purpose of each
prohibition were clearly defined. In al1 other cases
the passage of goods was free. No authorization or
licence was required.
The Court, therefore, concludes that, with regard
to private persons, civil officials and goods in
general there existed during the British and post-
British periods a constant and uniform practice
allowing free passage between Daman and the
enclaves. This practice having continued over a
period extending beyond a century and a quarter
unaffected by the change of regime in respect of the
intervening territory which occurred when India
became independent, the Court is, in view of all the
circumstances of the case, satisfied that that
practice was accepted as law by the Parties and
has given rise to a right and a correlative obligation.
The Court therefore holds that Portugal had in
1954 a right of passage over intervening Indian
territory between coastal Daman and the enclaves
and between the enclaves, in respect of private
persons, civil officials and goods in general, to the
extent necessary, as claimed by Portugal, for the
exercise of its sovereignty over the enclaves, and
subject to the regulation and control of India.
As regards armed forces, armed police and arms
and ammunition, the position is different.
It appears that during the British period up to 1878
passage of armed forces and armed police
between British and Portuguese possessions was
regulated on a basis of reciprocity. No distinction
appears to have been made in this respect with
regard to passage between Daman and the
enclaves. There is nothing to show that passage of
armed forces and armed police between Daman
and the enclaves or between the enclaves was
permitted or exercised as of right.
Paragraph 3 of Article XVIII of the Treaty of
Commerce and Extradition of 26 December 1878
between Great Britain and Portugal laid down that
the armed forces of the two Governments should
not enter the Indian dominions of the other, except
for the purposes specified in former Treaties, or for
the rendering of mutual assistance as provided for
in the Treaty itself, or in consequence of a formal
request made by the Party desiring such entry.
Subsequent correspondence between the British
and Portuguese authorities in India shows that this
provision was applicable to passage between
Daman and the enclaves.
It is argued on behalf of Portugal that on twenty-
three occasions during the years 1880-1889
Portuguese armed forces crossed British territory
between Daman and the enclaves without obtaining
permission. In this connection, it should be
observed that on 8 December 1890 the
Government of Bombay forwarded to the
Government of Portuguese India a complaint to the
effect that “armed men in the service of the
Portuguese Government are in the habit of passing
without formal request through a portion of the
British Pardi taluka of Surat en route from Daman
to Nagar Haveli and back again. It would appear
that the provisions of Article XVIII of the Treaty are
thus violated.” In his letter of 22 December 1890
addressed to the Governor of Bombay, the
Governor-General of Portuguese India stated: “On
so delicate a subject 1 request leave to observe that
Portuguese troops never cross British territory
without previous permission”, and went on to add:
“For centuries has this practice been followed,
whereby the treaties have been respected and due
deference shown to the British Authorities.” The
statement that this practice concerning the passage
of armed forces from the territory of one State to
that of the other had continued over a long period
even before the enclaves came into existence finds
support, for instance, in a Treaty of 1741 between
the Marathas and the Portuguese which contained
the following provision: “A soldier of the Sarkar
[Maratha ruler] entering the territory of Daman will
do so only with the permission of the Firangee
[Portuguese]. If a soldier of the Firangee were to
enter the territory of the Sarkar, he will do so only
with the permission of the Sarkar. There is no
reason to enter without permission.”
The requirement of a formal request before
passage of armed forces could take place was
repeated in an agreement of 1913.
With regard to armed police, the position was
similar to that of armed forces. The Treaty of 1878
regulated the passage of armed police on the basis
of reciprocity. Paragraph 2 of Article XVIII of the
Treaty made provision for the entry of the police
authorities of the parties into the territories of the
other party for certain specific purposes, e.g., the
pursuit of criminals and persons engaged in
smuggling and contraband practices, on a
reciprocal basis. An agreement of 1913 established
an arrangement providing for a reciprocal
concession permitting parties of armed police to
cross intervening territory provided previous
intimation was given. An agreement of 1920
provided that armed police below a certain rank
should not enter the territory of the other party
without consent previously obtained.
An agreement of 1940 concerning passage of
Portuguese armed police over the Daman-Silvassa
(Nagar-Aveli) road 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 after passage had taken place,
but that “If any number exceeding ten at a time are
required so to travel at any time the existing practice
should be followed and concurrence of the British
authorities should be obtained by prior notice as
heretofore.”
Both with regard to armed forces and armed
police, no change took place during the post-British
period after India became independent.
It would thus appear that, during the British and
post-British periods, Portuguese armed forces and
armed police did not pass 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. Having
regard to the special circumstances of the case, this
necessity for authorization before passage could
take place constitutes, in the view of the Court, a
negation of passage as of right. The practice
predicates that the territorial sovereign had the
discretionary power to withdraw or to refuse
permission. It is argued that permission was always
granted, but this does not, in the opinion of the
Court, affect the legal position. There is nothing in
the record to show that grant of permission was
incumbent on the British or on India as an
obligation.
As regards arms and ammunition, paragraph 4 of
Article XVIII of the Treaty of 1878 provided that the
exportation of arms, ammunition or military stores
from the territories of one party to those of the other
“shall not be permitted, except with the consent of,
and under rules approved of by, the latter”.
Rule 7 A, added in 1880 to the rules framed under
the Indian Arms Act of 1878, provided that “nothing
in rules 5,6, or 7 shall be deemed to authorize the
grant of licences … to import any arms, ammunition
or military stores from Portuguese India, [or] to
export to Portuguese India … [such objects] …
except … by a special licence”. Subsequent
practice shows that this provision applied to transit
between Daman and the enclaves.
There was thus established a clear distinction
between the practice permitting free passage of
private persons, civil officials and goods in general,
and the practice requiring previous authorization,
as in the case of armed forces, armed police, and
arms and ammunition.
The Court is, therefore, of the view that no right of
passage in favour of Portugal involving a correlative
obligation on India has been established in respect
of arrned forces, armed police, and arms and
ammunition. The course of dealings established
between the Portuguese and the British authorities
with respect to the passage of these categories
excludes the existence of any such right. The
practice that was established shows that, with
regard to these categories, it was well understood
that passage could take place only by permission of
the British authorities. This situation continued
during the post-British period.
The Court is here dealing with a concrete case
having special features. Historically the case goes
back to a period when, and relates to a region in
which, the relations between neighbouring States
were not regulated by precisely formulated rules but
were governed largely by practice. Where therefore
the Court finds 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 for the purpose of determining their specific
rights and obligations. Such a particular practice
must prevail over any general rules.
Having found that Portugal had in 1954 a right of
passage over intervening Indian territory between
Daman and the enclaves in respect of private
persons, civil officials and goods in general, the
Court will proceed to consider whether India has
acted contrary to its obligation resulting from
Portugal’s right of passage in respect of any of
these categories.
Portugal complains of the progressive restriction
of its right of passage between October 1953 and
July 1954. It does not, however, contend that India
had, during that period, acted contrary to its
obligation resulting from Portugal’s right of
passage. But Portugal complains that passage was
thereafter denied to Portuguese nationals of
European origin, whether civil officials or private
persons, to native Indian Portuguese in the employ
of the Portuguese Government, and to a delegation
that the Governor of Daman proposed to send to
Nagar-Aveli and Dadra.
It may be observed that the Governor of Daman
was granted the necessary visas for a journey to
and back from Dadra as late as 21 July 1954.
The events that took place in Dadra on 21-22 July
1954 resulted in the overthrow of Portuguese
authority in that enclave. This created tension in the
surrounding Indian territory. Thereafter al1 passage
was suspended by India. India contends that this
became necessary in view of the abnormal situation
which had arisen in Dadra and the tension created
in surrounding Indian territory.
In view of the tension then prevailing in intervening
Indian territory, the Court is unable to hold that
India’s refusal of passage to the proposed
delegation and its refusal of visas to Portuguese
nationals of European origin and to native Indian
Portuguese in the employment of the Portuguese
Government was action contrary to its obligation
resulting from Portugal’s right of passage.
Portugal’s claim of a right of passage is subject to
full recognition and exercise of Indian sovereignty
over the intervening territory and without any
immunity in favour of Portugal. The Court is of the
view that India’s refusal of passage in those cases
was, in the circumstances, covered by its power of
regulation and control of the right of passage of
Portugal.
*****
Legality of the Use by a State of Nuclear Weapons
in Armed Conflict
August 1993, filed in the Registry on 3 September
1993, the Director-General of the World Health
Organization officially communicated to the
Registrar a decision taken by the World Health
Assembly to submit to the Court the following
question, set forth in resolution WHA46.40 adopted
on 14 May 1993
“In view of the health and environmental effects,
would the use of nuclear weapons by a State in war
or other armed conflict be a breach of its obligations
under international law including the WHO
Constitution ?”
The Court decided that the WHO and the member
States of that organization entitled to appear before
the Court were likely to be able to furnish
information on the question, in accordance with
Article 66, paragraph 2, of the Statute. Written
statements were filed by 35 States, and
subsequently written observations on those written
statements were presented by nine States. In the
course of the oral proceedings, which took place in
October and November 1995, the WHO and 20
States presented oral statements. On 8 July 1996,
the Court found that it was not able to give the
advisory opinion requested by the World Health
Assembly.
It considered that three conditions had to be
satisfied in order to found the jurisdiction of the
Court when a request for advisory opinion was
submitted to it by a specialized agency : the agency
requesting the opinion had to be duly authorized,
under the Charter, to request opinions of the Court
; the opinion requested had to be on a legal
question ; and that question had to be one arising
within the scope of the activities of the requesting
agency. The first two conditions had been met. With
regard to the third, however, the Court found that
although according to its Constitution the WHO is
authorized to deal with the health effects of the use
of nuclear weapons, or of any other hazardous
activity, and to take preventive measures aimed at
protecting the health of populations in the event of
such weapons being used or such activities
engaged in, the question put to the Court in the
present case related not to the effects of the use of
nuclear weapons on health, but to the legality of the
use of such weapons in view of their health and
environmental effects.
The Court further pointed out that international
organizations did not, like States, possess a
general competence, but were governed by the
“principle of speciality”, that is to say, they were
invested by the States which created them with
powers, the limits of which were a function of the
common interests whose promotion those States
entrusted to them. Besides, the WHO was an
international organization of a particular kind — a
“specialized agency” forming part of a system
based on the Charter of the United Nations, which
was designed to organize international co-
operation in a coherent fashion by bringing the
United Nations, invested with powers of general
scope, into relationship with various autonomous
and complementary organizations, invested with
sectorial powers. The Court therefore concluded
that the responsibilities of the WHO were
necessarily restricted to the sphere of “public
health” and could not encroach on the
responsibilities of other parts of the United Nations
system. There was no doubt that questions
concerning the use of force, the regulation of
armaments and disarmament were within the
competence of the United Nations and lay outside
that of the specialized agencies. The Court
accordingly found that the request for an advisory
opinion submitted by the WHO did not relate to a
question arising “within the scope of [the] activities”
of that organization.
Brief Fact Summary. An advisory opinion as to
whether states are permitted to use nuclear
weapons under international law was placed before
the International Court of Justice by the U.N.
General Assembly.
Synopsis of Rule of Law. Under certain
circumstance, threat or use of nuclear weapons is
permitted under international law.
Facts. A request for an advisory opinion as to
whether states are permitted to use nuclear
weapons under international law was laid on the
table of the International Court of Justice by the
U.N. General Assembly.
Issue. Under certain circumstances, are threats or
use of nuclear weapons permitted under
international law?
Held. Yes. Under certain circumstance, threat or
use of nuclear weapons are permitted under
international law. The threat or use of nuclear
weapons in all circumstances is not authorized or
prohibited by either the customary or conventional
international nuclear law.
Under the U.N. Charter, the threat or use of nuclear
weapons would be considered legal if all
requirements of Article 51 which deals with state’s
rights to self-defense are met. However, in
whatever the situation can be, a state obligation
exists to pursue in good faith and bring to a
conclusion negotiations leading to nuclear
disarmament in all its aspect under strict and
effective international control.
Discussion. The idea that despite steps taken by a
very large part of the international community
towards complete nuclear disarmament, in which
no customary rule specifically proscribe the threat
or use of nuclear weapons that exists is illustrated
by this case. Reservations about the notion that
there are no imaginable circumstances warranting
their use have been expressed by too many
dissenters.
The advisory opinion came at a high point of
multilateral disarmament diplomacy. The Chemical
Weapons Convention had been negotiated, the NPT had
been indefinitely extended, and negotiation of the
Comprehensive Test Ban Treaty was nearly complete.
The initiative to obtain the opinion and the opinion
itself reflect that moment.
In the subsequent two decades, efforts toward
consolidating a multilateral nuclear disarmament
regime have been stymied. Nuclear-armed states have
done little to reduce the role of nuclear weapons in their
security postures, let alone acknowledge that their use
is incompatible with the law of armed conflict. Their
planning for maintenance and modernization of their
arsenals for decades to come and the associated
projected vast spending—$1 trillion by the United
States over the next three decades—manifests a lack of
good faith in meeting the obligation of negotiating the
elimination of nuclear arms. On the positive side,
nuclear weapons have not been detonated in war, the
demand for disarmament is still being vigorously
pressed by non-nuclear-weapon states and civil society
actors, and the contradiction between reliance on
nuclear arms and what the court called “elementary
considerations of humanity” is being exposed with
renewed energy. In this complex environment, the
advisory opinion remains an indispensable guide to the
norms compelling nonuse of nuclear weapons and their
universal elimination.
Held. Yes. Under certain circumstance, threat or
use of nuclear weapons are permitted under
international law. The threat or use of nuclear
weapons in all circumstances is not authorized or
prohibited by either the customary or conventional
international nuclear law.
Under the U.N. Charter, the threat or use of nuclear
weapons would be considered legal if all
requirements of Article 51 which deals with state’s
rights to self-defense are met. However, in
whatever the situation can be, a state obligation
exists to pursue in good faith and bring to a
conclusion negotiations leading to nuclear
disarmament in all its aspect under strict and
effective international control.
Discussion. The idea that despite steps taken by a
very large part of the international community
towards complete nuclear disarmament, in which
no customary rule specifically proscribe the threat
or use of nuclear weapons that exists is illustrated
by this case. Reservations about the notion that
there are no imaginable circumstances warranting
their use have been expressed by too many
dissenters.
Facts:
Shigenori Kuroda, formerly a Lieutenant-General of the
Japanese Imperial Army and Commanding General of
the Japanese Imperial Forces in The Philippines during
Second World War. He was charged before a military
commission convened by the Chief of Staff of the
Armed forces of the Philippines with having unlawfully
disregarded and failed to discharge his duties as such
command, permitting them to commit brutal atrocities
and other high crimes against noncombatant civilians
and prisoners of the Imperial Japanese Forces in
violation of the laws and customs of war”. The said
military commission was empaneled under the authority
of Executive Order 68 of the President of the
Philippines.
Kuroda challenged the validity of Executive Order 68.
His arguments, were as follows:
(1) Executive Order 68 is illegal on the ground that it
violates not only the provisions of our constitutional
law but also our local laws.
(2) Military Commission has no Jurisdiction to try him
for acts committed in violation of the Hague
Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the
second only in 1947 and, therefore, he is charged with
“crime” not based on law, national or international
(3) Hussey and Port have no personality as prosecutors
in this case because they are not qualified to practice
law in Philippines in accordance with our Rules of
court and the appointment of said attorneys as
prosecutors is violative of our national sovereignty.
Issue/s:
Whether or not Executive Order 68 had violated the
provisions of our constitutional law
Discussions:
The provision of Article 2 Sec 3 states that “The
Philippines renounces war as an instrument of national
policy, adopts generally accepted principles of
international law as part of the law of the land, and
adheres to the policy of peace, equality, justice
freedom, cooperation and amity with all nations”.
Every State is, by reason of its membership in the
family of nations, bound by the generally accepted
principles of international law, which are considered to
be automatically part of its own laws.
Ruling/s:
No. Executive Order 68 has not violated the provision
of our constitutional law. The tribunal has jurisdiction
to try Kuroda. This executive order is in accordance
with Article 2 Sec 3, of Constitution. It is in accordance
with generally accepted principles of international law
including the Hague Convention and Geneva
Convention, and other international jurisprudence
established by the UN, including the principle that all
persons (military or civilian) guilty of plan, preparing,
waging a war of aggression and other offenses in
violation of laws and customs of war.
The Philippines may not be a signatory to the 2
conventions at that time but the rules and regulations of
both are wholly based on the generally accepted
principles of international law. They were accepted
even by the 2 belligerent nations (US and Japan)
Furthermore, the Phil. Military Commission is a special
military tribunal and rules as to parties and
representation are not governed by the rules of court but
the provision of this special law.
[The Court DENIED the petition and upheld
the validity and constitutionality of E.O. No. 68.]
YES, E.O. No. 68 valid and constitutional.
Article 2 of our Constitution provides in its
section 3, that –
The Philippines renounces war as an
instrument of national policy and adopts the
generally accepted principles of international law as
part of the law of the nation.
In accordance with the generally accepted
principle of international law of the present day
including the Hague Convention the Geneva
Convention and significant precedents of
international jurisprudence established by the
United Nation all those person military or civilian
who have been guilty of planning preparing or
waging a war of aggression and of the commission
of crimes and offenses consequential and
incidental thereto in violation of the laws and
customs of war, of humanity and civilization are
held accountable therefor. Consequently in the
promulgation and enforcement of Execution Order
No. 68 the President of the Philippines has acted in
conformity with the generally accepted and policies
of international law which are part of the our
Constitution.
xxx xxx xxx
Petitioner argues that respondent Military
Commission has no jurisdiction to try petitioner for
acts committed in violation of the Hague
Convention and the Geneva Convention because
the Philippines is not a signatory to the first and
signed the second only in 1947. It cannot be denied
that the rules and regulation of the Hague and
Geneva conventions form, part of and are wholly
based on the generally accepted principals of
international law. In facts these rules and principles
were accepted by the two belligerent nations the
United State and Japan who were signatories to the
two Convention. Such rule and principles therefore
form part of the law of our nation even if the
Philippines was not a signatory to the conventions
embodying them for our Constitution has been
deliberately general and extensive in its scope and
is not confined to the recognition of rule and
principle of international law as contained in treaties
to which our government may have been or shall be
a signatory.
Yamashita vs Styer
G.R. No. L-129 December 19, 1945
Facts:
Petitioner Tomoyuki Yamashita, the commanding
general of the 14th army group of the Japanese
Imperial Army in the Philippines, after his surrender
became a prisoner of war of the United States of
America but was later removed from such status
and placed in confinement as an accused war
criminal charged before an American Military
Commission constituted by respondent Lieutenant
General Styer, Commanding General of the United
States Army Forces, Western Pacific.
Filing for habeas corpus and prohibition against
respondent, he asks that he be reinstated to his
former status as prisoner of war, and that the
Military Commission be prohibited from further
trying him. He questions, among others, the
jurisdiction of said Military Commission.
Issue/s:
1. Should the petitions for habeas corpus and
prohibition be granted in this case?
2. Was the Military Commission validly constituted
by respondent, therefore having jurisdiction over
the war crimes?
Ruling: 1. NO. 2. YES.
1. A petition for habeas corpus is improper when
release of petitioner is not sought. It seeks no
discharge of petitioner from confinement but merely
his restoration to his former status as a prisoner of
war, to be interned, not confined. The relative
difference as to the degree of confinement in such
cases is a matter of military measure, disciplinary in
character, beyond the jurisdiction of civil courts.
Prohibition cannot issue against one not made
party respondent. Neither may the petition for
prohibition prosper against Lt. Gen. Wilhelm D.
Styer. The Military Commission is not made party
respondent in this case, and although it may be
acting, as alleged, without jurisdiction, no order may
be issued in these case proceedings requiring it to
refrain from trying the petitioner.
The Court further ruled that it has no jurisdiction to
entertain the petition even if the commission be
joined as respondent. As it has said, in Raquiza vs.
Bradford (pp. 50, 61, ante), “. . . an attempt of our
civil courts to exercise jurisdiction over the United
States Army before such period (state of war)
expires, would be considered as a violation of this
country’s faith, which this Court should not be the
last to keep and uphold.”
2. Under the laws of war, a military commander has
an implied power to appoint and convene a military
commission. This is upon the theory that since the
power to create a military commission is an aspect
of waging war, military commanders have that
power unless expressly withdrawn from them.
By the Articles of War, and especially Article 15, the
Congress of the United States has explicitly
provided, so far as it may constitutionally do so, that
military tribunals shall have jurisdiction to try
offenders or offenses against the laws of war in
appropriate cases.
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.
Facts:
Tomoyuki Yamashita, erstwhile commanding
general of the 14th army group of the Japanese
Imperial Army in the Philippines, and now charged
before an American Military Commission with the
most monstrous crimes ever committed against
the American and Filipino peoples, comes to... this
Court with a petition for habeas corpus and
prohibition against Lt. Gen. Wilhelm D. Styer,
Commanding General of the United States Army
Forces, Western Pacific. It is alleged therein that
petitioner after his surrender became a prisoner of
war of the United States... of America but was
later removed from such status and placed in
confinement as an accused war criminal charged
before an American Military Commission
constituted by respondent Lieutenant General
Styer; and he now asks that he be reinstated to his
former status as prisoner of... war, and that the
Military Commission be prohibited from further
trying him
We believe and so hold that the petition for
habeas corpus is untenable. It seeks no discharge
of petitioner from confinement but merely his
restoration to his former status as a prisoner of
war, to be interned, not confined. The relative
difference as to the degree of... confinement in
such eases is a matter of military measure,
disciplinary in character, beyond the jurisdiction of
civil courts.
Neither may the petition for prohibition prosper
against Lt. Gen. Wilhelm D. Styer. The Military
Commission is not made party respondent in this
case, and although it may be acting, as alleged,
without jurisdiction, no order may be issued in
these proceedings requiring it to... refrain from
trying the petitioner.
The Commission has been validly constituted by
Lieutenant General Styer by order duly issued by
General Douglas MacArthur, Commander in Chief,
United States Army Forces, Pacific, in accordance
with authority vested in him and with radio
communications from the Joint Chiefs of
Staff
Petitioner is charged before the Military
Commission sitting at Manila with having permitted
members of his command "to commit brutal
atrocities and other high crimes against the people
of the United States and of its allies and
dependencies, particularly the Philippines,"...
crimes and atrocities which in the bills of
particulars, are described as massacre and
extermination of thousands and thousands of
unarmed noncombatant civilians by cruel and
brutal means, including bayoneting of children and
raping of young girls, as well as devastation and...
destruction of public, private, and religious
property for no other motive than pillage and
hatred. These are offenses against the laws of war
as described in paragraph 347 of the Rules of
Land Warfare.
Issues:
(1) That the Military Commission was not duly
constituted, and, therefore, it is without jurisdiction;
(2) That the Philippines cannot be considered as
an occupied territory, and the Military Commission
cannot exercise jurisdiction therein;
(3) That Spain, the "protecting power" of Japan,
has not been given notice of the impending trial
against petitioner, contrary to the provisions of the
Geneva Convention of July 27, 1829, and
therefore, the Military Commission has no
jurisdiction to try the petitioner;
(4) That there is against the petitioner no charge of
an offense against the laws of war; and
(5) That the rules of procedure and evidence
under which the Military Commission purports to
be acting denied the petitioner a fair trial.
Ruling:
True that the rule was made applicable in time of
war, and there is a conflict of opinion as to
whether war has already terminated. War is not
ended simply because hostilities have ceased.
After cessation of armed hostilities, incident of war
may remain pending which should... be disposed
of as in time of war. "An important incident to a
conduct of war is the adoption of measures by the
military command not only to repel and defeat the
enemies but to seize and subject to disciplinary
measures those enemies who in their attempt to
thwart or impede our... military effort have violated
the law of war."
Upon the other hand, we have once said... and
this is applicable in time of war as well as the time
of peace that this Court has no power to review
upon habeas corpus the proceedings of a military
or naval tribunal, and that, in such... case, "the
single inquiry, the test, is jurisdiction. That being
established, the habeas corpus must be denied
and the petitioner remanded. That wanting, it must
be sustained, and the petitioner discharged."
Following this rule in the instant case, we find that
the Military Commission has been validly
constituted and it has jurisdiction both over the
person of the petitioner and over the offenses with
which he is charged.
Principles:
True that the rule was made applicable in time of
war, and there is a conflict of opinion as to
whether war has already terminated. War is not
ended simply because hostilities have ceased.
After cessation of armed hostilities, incident of war
may remain pending which should... be disposed
of as in time of war. "An important incident to a
conduct of war is the adoption of measures by the
military command not only to repel and defeat the
enemies but to seize and subject to disciplinary
measures those enemies who in their attempt to
thwart or impede our... military effort have violated
the law of war."
Indeed, the power to create a Military Commission
for the trial and punishment of war criminals is an
aspect of waging war. And, in the language of a
writer, a Military
Commission "has jurisdiction so long as a
technical state of war continues. This includes the
period of an armistice, or military occupation, up to
the effective date of a treaty of peace, and may
extend beyond, by treaty agreement."
Under paragraph 356 of the Rules of Land
Warfare, a Military Commission for the trial and
punishment of war criminals must be designated
by the belligerent. And the belligerent's
representative in the present... case is none other
than the Commander in Chief of the United States
Army in the Pacific. According to the Regulations
Governing the Trial of War Criminals in the
Pacific,... the "trial of persons, units, and
organizations accused as war... criminals will be
by Military Commissions to be convened by or
under the authority of the Commander in Chief,
United States Army Forces, Pacific."
Articles of War Nos. 12 and 15 recognize the
"Military Commission" appointed by military
command as an appropriate tribunal for the... trial
and punishment of offenses against the law of war
not ordinarily tried by court martial.
This is upon the theory that since the power to
create a Military Commission is an aspect of
waging war, Military Commanders have that power
unless... expressly withdrawn from them.
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-petitioner’s 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-petitioner’s 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-petitioner’s 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-
petitioner’s 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-petitioner’s
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-petitioner’s 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.