Case Digest for Human Rights-2

PP v. Andre Marti GR81561 January 18, 1991

Between 1981 and 1984, approximately 150 people disappear in Honduras.7 These disappearances all follow a similar pattern: the victims are kidnapped by force from public places in broad daylight by armed men in civilian clothes and disguises.8 It is common knowledge that the kidnappings are carried out by military personnel or the police, or persons acting under government orders.9 The victims are usually persons whom the authorities consider to be dangerous to State security, and who have been under surveillance for long periods of time.

Facts: ● Andre Marti and his wife Shirley wanted to send packages to their friend in Switzerland and contracted the services of Manila Packing and Export Forwarders. ● When asked by the forwarder if they could examine and inspect the packages, Marti refused, assuring that the packages simply contained books and cigars. ● However, the proprietor opened the boxes for final inspection as part of their SOP. Upon opening, they suspected that the contents were illegal drugs. ● The proprietor reported the incident to NBI which confirmed that the suspected content were marijuana. ● In the presence of the NBI agents, the boxes were opened and found dried marijuana leaves inside. ● After Marti was traced by NBI, he was charged with violation of the Dangerous Drugs Act.Marti assailed the admissibility of the drugs as evidence against him, which, according to him, is obtained in violation of his constitutional rights against unreasonable search and seizure and privacy of communication.

10 Military and police officials either deny these disappearances or claim that they are incapable of preventing or investigating them, unable to punish those responsible, or powerless to help locate the victims or their remains.11 The investigative committees created by the State and the Armed Forces are ineffective in producing results, and judicial proceedings regarding these disappearances are handled inefficiently.12 I.

October 7, 1981: A petition is submitted to the Inter-American Commission of Human Rights on behalf of Mr. Angel Manfredo Velásquez Rodríguez.13 October 4, 1983: The Commission adopts Resolution No. 30/83, which presumes the allegations contained in the petition to the Commission are true.14 The petition concerns the detention and possible disappearance of Mr. Velásquez Rodríguez, and lays out the allegations that Mr. Velásquez Rodríguez was kidnapped by government officials, taken away to armed forces’ headquarters, detained, interrogated and tortured.

Issue May an act of a private individual, allegedly in violation of appellant's constitutional rights, be invoked against the State? 82 82 Ruling No The Court ruled that in the absence of governmental interference, the liberties granted by the Constitution cannot be invoked against the State. The constitutional right against unreasonable search and seizure refers to the immunity of one's person, whether citizen or alien, from interference by government. Its protection is directed only to governmental action.

November 18, 1983: The State requests reconsideration of Resolution No. 30/93 on the grounds that domestic remedies have not been exhausted, and further claims that the National Government of Investigations has no knowledge of the whereabouts of Mr. Velásquez Rodríguez, and that the State is making every effort to locate Mr. Velásquez Rodríguez.16 The State further contends that Mr. Velásquez Rodríguez is rumored to be “with Salvadoran guerilla groups.”17

This right do not require exclusion of evidence obtained through a search by a private citizen.In this case, the evidence was primarily discovered and obtained by a private person, acting in a private capacity and without the intervention of State authorities. Therefore, there is no reason why it should not be admitted to prosecute him. Marti, however, alleged that the NBI agents made an illegal search and seizure of the evidence. The Court pointed out that: a) It was the proprietor who made a reasonable search of the packages in compliance with SOP AND b) the mere presence of the NBI agents did not convert the reasonable search effected into a warrantless search and seizure. Merely to observe and look at that which is in plain sight is not a search. Marti further argued that since the Constitution expressly declares as inadmissible any evidence obtained in violation of the constitutional prohibition against illegal search and seizure, it matters not whether the evidence was procured by police authorities or private individuals. The Court answered that the Constitution, in laying down the principles of the government and fundamental liberties of the people, does not govern relationships between individuals.

PROCEDURAL HISTORY A. Before the Commission

May 30, 1984: The Commission informs the State that it has decided “in light of the information submitted by the Honorable Government” to reconsider Resolution No. 30/83 and to continue its study of the case.18 April 18, 1986: The Commission adopts Resolution No. 22/86, finding that the new information presented by the Government is insufficient to warrant reconsideration of Resolution No. 30/83. To the contrary, the Commission finds that all evidence points to the State being responsible for the disappearance of Mr. Velásquez Rodríguez, who is still missing.19 The Commission confirms Resolution No. 30/83 and refers the matter to the Court.20 C.

Before the Court

April 24, 1986: The Commission submits the case to the Court after the State failed to adopt its recommendations.21

Velasquez – Rodriguez v. Honduras Inter-American Court of Human Rights, July 29, 1988 Series C, No. (1988)

1.

ABSTRACT1

Article 4 (Right to Life) Article 5 (Right to Humane Treatment) Article 7 (Right to Personal Liberty)

This is the first case decided by the Inter-American Court of Human Rights. The Velásquez Rodríguez case, together with the Godínez Cruz, and Fairén Garbi and Solís Corrales cases, all considered by the Court around the same time, form a trio of landmark cases targeting forced disappearance practices by the Honduran government during the early 1980s. I. FACTS A.

Chronology of Events September 12, 1981: Mr. Angel Manfredo Velásquez Rodríguez, a student at the National Autonomous University of Honduras (Universidad Nacional Autónoma de Honduras, “UNAH”), is involved in activities that the State considers dangerous to national security.2 Between 4:30 and 5:00 pm, several heavily armed men in civilian clothes, driving a white Ford vehicle without license plates, kidnap Mr. Velásquez Rodríguez from a parking lot in downtown Tegucigalpa.3 Mr. Velásquez Rodríguez is taken to an armed forces station located in Barrio El Manchén of Tegucigalpa, where he is detained by members of the National Office of Investigations (“DNI”) and the Honduran Armed Forces, who accuse him of political crimes, and subject him to harsh interrogation and torture.4 September 17, 1981: Mr. Velásquez Rodríguez is moved to the First Infantry Battalion, an armed forces command area, near Tegucigalpa. The police and security forces deny that he was ever detained there.6

B.

Other Relevant Facts

Violations Alleged by Commission22

Same Violations Alleged by Commission. Amnesty International, Association of the Bar of the City of New York, Lawyers Committee for Human Rights, and Minnesota Lawyers International Human Rights Committee submit amicus curiae briefs to the Court. 24 July 23, 1986: Judge Jorge R. Hernández Alcerro recuses himself from hearing the case. 25 August 21, 1986: The State names Judge Rigoberto Espinal Irías as judge ad hoc. 26 October 31, 1986: The State raises objections that the Commission did not follow proper admissibility procedures; that the Commission did not take into account information provided by the State regarding the failure to exhaust domestic legal remedies; and further that these domestic legal remedies were not pursued or exhausted.27 The State also objects on grounds that the Commission did not follow proper procedure for preparing reports, ignored the Convention’s provision on friendly settlements, failed to comply with case referral procedures, and that submitting the State’s observations on the merits is inappropriate at this time 28 June 15, 1987: The State raises its preliminary objections at a hearing.29 The State asserts six preliminary objections: lack of a formal declaration of admissibility by the Commission, failure to attempt a friendly settlement, failure to carry out an on-site investigation, lack of a prior hearing, and improper application of Articles 50, which provides

that the Commission may draw up a report if a settlement is not reached, and 51, which provides that if the State has not responded to the Commission’s report within three months, the Commission may by majority vote set forth its opinions regarding the question submitted. 30 June 26, 1987: The Court delivers its judgment on the State’s preliminary objections.31 The Court unanimously rejects all of the State’s preliminary objections except one, the lack of exhaustion of domestic legal remedies, 32 which the Court orders to be joined to the merits of the case because lack of effective domestic remedy often occurs in forced disappearances. 33 With respect to the objection of the lack of a formal declaration of admissibility by the Commission, the Court finds that there is nothing in the American Convention’s procedures requiring an express declaration of admissibility when the Commission itself is involved.34 Therefore, the Commission’s failure to make an express declaration on the question of admissibility is not a valid basis for barring proper consideration by the Court.35 Regarding the State’s argument that the Commission did not promote a friendly settlement, the Court reasons that based on the text of the American Convention, attempting such a friendly settlement need only happen when “the circumstances of the controversy make the option suitable or necessary,” and that the decision is at the Commission’s sole discretion.36 The Court further finds that the Commission’s failure to conduct an on-site investigation to be inconsequential on the grounds that the rules governing on-site investigations are subject to the discretionary powers of the Commission.37 With respect to the State’s objection to the Commission’s failure to hold a preliminary hearing, the Court holds that a preliminary hearing is a procedural requirement only when the Commission considers it necessary or when the parties express such a request.38 Since neither the petitioners nor the State asked for a hearing, the Commission did not consider it necessary, and was not required to hold one.39 As for the State’s objection to the improper application of Articles 50 and 51 of the Convention, the Court finds that, despite that the requirements were not fully complied with, there has been no impairment of the State’s rights such that the Court should rule the case inadmissible.40

Article 7 (Right to Personal Liberty), in relation to Article 1(1) of the Convention, to the detriment of Mr. Velásquez Rodríguez, 59 because: The kidnapping of a person is an arbitrary deprivation of liberty, and an infringement of the right to be brought without delay before a judge or to invoke appropriate procedures to review the legality of an arrest.60 Based on the evidence presented in the case, the Court found that Mr. Velásquez Rodríguez was a victim of arbitrary detention, which deprived him of his physical liberty without cause.61 For that reason, the Court found that the State violated Article 7 (Right to Personal Liberty). 62 Although the Commission did not allege a violation of Article 1(1) (Obligation to Respect Rights) of the American Convention, the Court specifically applies this violation because Article 1(1) contains the generic basis of the protection of all the rights recognized by the Convention.63 The Court discussed the essential nature of Article 1(1) in determining whether a violation of human rights can be imputed to a State by charging States with the duty to respect and guarantee rights that are recognized in the American Convention.64 The Court also rejected the State’s final preliminary objection of non-exhaustion of domestic remedies,65 because: The requirement of exhaustion of domestic remedies exists to allow the State to resolve the problem under its internal law before being confronted with an international proceeding.”66 The Court agreed with the State that this requirement is necessary because domestic law precedes the international system in the protection of human rights,67 however, the Court also reasoned that the international protection of human rights is founded on the very need to protect victims from arbitrary exercises of governmental authority.68 For that reason, when a petitioner alleges a lack of adequate domestic remedy, international protection is not only justified, but necessary and urgent.69 The Court noted that not all remedies are applicable in every circumstance, and not all remedies are effective.70

March 20, 1987: In response to the State’s objections, the Commission draws the conclusion that the State violated Articles 4 (Right to Life), 5 (Right to Humane Treatment), and 7 (Right to Personal Liberty) of the American Convention because it detained Mr. Velásquez Rodríguez on September 12, 1981 and he has been missing ever since.41 The Commission further asserts that the substantive or procedural objections raised by the State have no legal basis, and requests that the Court find that the State violated the aforementioned rights of Mr. Velásquez Rodriguez.42

The Commission was able to show that although writs of habeas corpus and criminal complaints were filed, they were ineffective.71 While there may have been legal remedies in the State that would have theoretically allowed a detained person to be found, the State’s attempts to solve the cases of disappearance were ineffective because the imprisonments were clandestine, and suspicious procedures were used to bring those responsible to justice.72

November 6, 1987 - December 18, 1987: The Commission asks the Court to take provisional measures in view of threats against several witnesses who have testified or who have been asked to testify before the Court.43

NICARAGUA VS UNITED STATES (SUMMARY) ON SELF DEFENCE AND USE OF FORCE

January 15, 1988: After being informed that witnesses were assassinated on January 5, 1988 and on January 14, 1988, the Court adopts provisional measures requesting that the Government of Honduras adopt all measures necessary to prevent further infringements on the basic rights of those who have appeared or have been summoned to appear before the Court in all pending forced disappearance cases (Velásquez Rodríguez, Fairén Garbi and Solís Corrales and Godínez Cruz cases).44 The Court further requests that the State do everything person to have his life respected.49 The practice of disappearances in Honduras often involved secret executions and concealment of bodies, the practice is a flagrant violation of the right enshrined in Article 4.50 Since Mr. Velásquez Rodríguez has been disappeared for seven years, and because his body was never discovered, the Court found there was a reasonable presumption that he had been killed.51 The Court stated that even if there is the slightest doubt as to this whether Mr. Velásquez Rodriguez is dead, it is presumed that his fate was impacted by authorities who systematically executed detainees without trial and who concealed bodies to avoid punishment.52 Taking the above evidence along with the State’s failure to investigate or to take steps to prevent such forced disappearances from happening, the Court found that the State violated Article 4 (Right to Life). 53 Article 5 (Right to Humane Treatment), in relation to Article 1(1) of the Convention, to the detriment of Mr. Velásquez Rodríguez, 54 because: Article 5 (Right to Humane Treatment) of the Convention recognizes the right that every individual has to have their physical, mental, and moral integrity respected.55 Article 5 also recognizes the right to be free from cruel, inhuman, or degrading torture, punishment, and treatment.56 Investigations into the practice of forced disappearance in addition to the testimony of found victims suggest that victims of this practice are usually subject to cruel, inhumane, and degrading treatment during their detainment.57 Though there is no direct evidence showing that Mr. Velásquez Rodríguez was tortured, the Court concluded that Mr. Velásquez Rodríguez was kidnapped and imprisoned by government officials, and, because the State has been shown to subject detainees to torture in the past, the Court held that the State violated Article 5 (Right to Humane Treatment) in this case of forced disappearance.58

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

Case: Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua vs United States) (Merits: focusing on matters relating to the use of force and self-defence) Year of Decision: 1986 Court: ICJ NB: This blog post will discuss matters on the use of force and self-defence. If you would like to read about the impact of the Nicaragua judgement on customary international law and the US multilateral reservation please click here. Overview: The case involved military and paramilitary activities conducted 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 collapsed following an armed opposition led by the Frente Sandinista de Liberacibn Nacional (FSLN) . The new government – installed by FSLN – began to meet armed opposition from supporters of the former Somoza Government and ex-members of the National Guard. The US – initially supportive of the

new government – changed its attitude when, according to the United States, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador. In April 1981 it terminated United States aid to Nicaragua and in September 1981, according to Nicaragua, the United States “decided to plan and undertake activities directed against Nicaragua”. The armed opposition to the new Government was conducted mainly by (1) Fuerza Democratica Nicaragüense (FDN), which operated along the border with Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica, (see map of the region). Initial US support to these groups fighting against the Nicaraguan Government (called “contras”) was covert. Later, the United States officially acknowledged its support (for example: In 1983 budgetary legislation enacted by the United States Congress made specific provision for funds to be used by United States intelligence agencies for supporting “directly or indirectly military or paramilitary operations in Nicaragua”). Nicaragua also alleged that the United States is effectively in control of the contras, the United States devised their strategy and directed their tactics and that they were paid for and directly controlled by United States personal. Nicaragua also alleged that some attacks were carried out by United States military – with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil installations and a naval base. Nicaragua alleged that aircrafts belonging to the United States flew over Nicaraguan territory to gather intelligence, supply to the contras in the field and to intimidate the population. The United States did not appear before the ICJ at the merit stages, after refusing to accept the 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 by “providing, upon request, proportionate and appropriate assistance…” to Costa Rica, Honduras and El Salvador in response to Nicaragua’s alleged acts aggression against those countries (paras. 126, 128).

The Court held that:



The prohibition on the use of force is found in Article 2(4) of the UN Charter and in customary international law.



In a controversial finding the court sub-classified the use of force as: (1) the “most grave forms of the use of force” (i.e. those that constitute an armed attack) and (2) the “less grave form” (i.e. organizing, instigating, assisting or participating in acts of civil strife and terrorist acts in another State – when the acts referred to involve a threat or use of force not amounting to an armed attack).



The United States violated the customary international law prohibition on the use of force when it laid mines in Nicaraguan ports. It violated this prohibition when it attacked Nicaraguan ports, oil installations and a naval base (see below). The United States could justify its action on collective self-defence, if certain criteria were met – this aspect is discussed below.



The United States violated the customary international law prohibition on the use of force when it assisted the contras by “organizing or encouraging the organization of irregular forces and armed bands… for incursion into the territory of another state” and participated “in acts of civil strife…in another State” when these acts involved the threat or use of force.



The supply of funds to the contras did not violate the prohibition on the use of force. Nicaragua argued that the timing of the offensives against it was determined by the United States: i.e. an offensive could not be launched until the requisite funds were available. The Court held that “…it does not follow that each provision of funds by the United States was made to set in motion a particular offensive, and that that offensive was planned by the United States.” The Court held further that while the arming and training of the contras involved the threat or use of force against Nicaragua, the supply of funds, in it self, only amounted to an act of intervention in the internal affairs of Nicaragua (para 227) – this aspect is discussed below.

Questions before the Court:



Did the United States breach its customary international law obligation – not to intervene in the affairs of another State – when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua?



Did the United States breach its customary international law obligation – not to use force against another State – when it directly attacked Nicaragua in 1983 – 1984 and when its activities in bullet point 1 above resulted in the use of force?



If so, can the military and paramilitary activities that the United States undertook in and against Nicaragua be justified as collective selfdefence?

What is an armed attack?



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





Did the United States breach its customary international law obligation – not to violate the sovereignty of another State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and by acts referred to in bullet point 2 above? Did the United States breach its customary international law obligations – not to violate the sovereignty of another State, not to intervene in its affairs, not to use force against another State and not to interrupt peaceful maritime commerce – when it laid mines in the internal waters and the territorial sea of Nicaragua?

(2) “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its (the State’s) substantial involvement therein” NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the Definition of Aggression.



Mere frontier incidents are not considered as an armed attack – unless because of its scale and effects it would have been classified as an armed attack if it was carried out by regular forces.



Assistance to rebels in the form of provision of weapons or logistical support did not constitute an armed attack – it can be regarded as a threat or use of force, or an intervention in the internal or external affairs of other States (see paras 195, 230).



Under Article 51 of the UN Charter and under CIL – self-defence is only available against a use of force that amounts to an armed attack (para 211).

ICJ decision: The United States violated customary international law in relation to bullet points 1, 2, 4 and 5 above. On bullet point 3, the Court found that the United States could not rely on collective self-defence to justify its use of force against Nicaragua. Relevant Findings of the Court: 1. The court held that the United States breached its customary international law obligation – not to use force against another State: (1) when it directly attacked Nicaragua in 1983 – 1984; and (2) when its activities with the contra forces resulted in the threat or use of force (see paras 187 -201).

NB: In in the Case Concerning Oil Platforms and the advisory opinion on the Legal Consequences of of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter called the Palestine wall case) the ICJ upheld the definition of “armed attack” proposed in the Nicaragua case. In the Palestinian wall case, the attacks from which Israel was claiming self defence originated from non-State actors. However, the Court held that

Article 51’s inherent right of self defence was available to one State only against another State (para 139). Judges Higgins, Buergenthal and Kooijmans opposed this narrow view. Articles on State Responsibility, prepared by the International Law Commission, provided significant guidance as to when acts of non-State actors may be attributed to States. These articles, together with recent State practice relating attacks on terrorists operating from other countries (see legal opinions surrounding the United States attack on Afghanistan), may have widened the scope of an armed attack, and consequently, the right of self defence, envisaged by the ICJ.



The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and Honduras in determining whether an armed attack was undertaken by Nicaragua against the three countries – which in turn would necessitate selfdefence (paras 230 – 236). The Court referred to statements made by El Salvador, Costa Rica, Honduras and the United States before the Security Council. None of the countries who were allegedly subject to an armed attack by Nicaragua (1) declared themselves as a victim of an armed attack or request assistance from the United States in self-defence – at the time when the United States was allegedly acting in collective self-defence; and (2) the United States did not claim that it was acting under Article 51 of the UN Charter and it did not report that it was so acting to the Security Council. The Court concluded that the United States cannot justify its use of force as collective self-defence.



The criteria with regard to necessity and proportionality, that is necessary when using force in self-defence – was also not fulfilled (para 237).

2. The Court held that the United States could not justify its military and paramilitary activities on the basis of collective self-defence.





Customary international law allows for exceptions to the prohibition on the use of force – including the right to individual or collective self-defence (for a difference between the two forms of self defence, click here). The United States, at an earlier stage of the proceedings, had asserted that the Charter itself acknowledges the existence of this customary international law right when it talks of the “inherent” right of a State under Article 51 of the Charter (para.193). When a State claims that it used force in collective self-defence, the Court would look into two aspects:

3. The Court held that the United States breached its CIL obligation – not to intervene in the affairs of another State – when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua.

 (1) whether the circumstances required for the exercise of self-defence existed and (2) whether the steps taken by the State, which was acting in self-defence, corresponds to the requirements of international law (i.e. did it comply with the principles of necessity and proportionality).



Several criteria must be met for a State to exercise the right of individual or collective self-defence:

(1) A State must have been the victim of an armed attack; (2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an armed attack took place nor not is done by the state who was subjected to the attack. A third State cannot exercise a right of collective self-defence based its (the third State’s) own assessment]; and (3) In the case of collective self-defence – the victim State must request for assistance (“there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack”). (4) The State does not, under customary international law, have the same obligation as under Article 51 of the UN Charter to report to the Security Council that an armed attack happened – but “the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence” (see below). “At this point, the Court may consider whether in customary international law there is any requirement corresponding to that found in the treaty law of the United Nations Charter, by which the State claiming to use the right of individual or collective self-defence must report to an international body, empowered to determine the conformity with international law of the measures which the State is seeking to justify on that basis. Thus Article 51 of the United Nations Charter requires that measures taken by States in exercise of this right of self-defence must be “immediately reported” to the Security Council. As the Court has observed above (paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in customary international law, may well be so unencumbered with the conditions and modalities surrounding it in the treaty. Whatever influence the Charter may have had on customary international law in these matters, it is clear that in customary international law it is not a condition of the lawfulness of the use of force in self-defence that a procedure so closely dependent on the content of a treaty commitment and of the institutions established by it, should have been followed. On the other hand, if self-defence is advanced as a justification for measures which would otherwise be in breach both of the principle of customary international law and of that contained in the Charter, it is to be expected that the conditions of the Charter should be respected. Thus for the purpose of enquiry into the customary law position, the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence (See paras 200, 232 -236)”.

The principle of non- intervention means that every State has a right to conduct its affairs without outside interference – i.e it “…forbids States or groups of States to intervene directly or indirectly in internal or external affairs of other States.” . This is a corollary of the principle of sovereign equality of States.

A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State (para 205).



Nicaragua stated that the activities of the United States were aimed to overthrow the government of Nicaragua and to substantially damage the economy and weaken the political system to coerce the Government of Nicaragua to accept various political demands of the United States. The Court held:

“…first, that the United States intended, by its support of the contras, to coerce the Government of Nicaragua in respect of matters in which each State is permitted, by the principle of State sovereignty, to decide freely (see paragraph 205 above) ; and secondly that the intention of the contras themselves was to overthrow the present Government of Nicaragua… The Court considers that in international law, if one State, with a view to the coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that amounts to an intervention by the one State in the internal affairs of the other, whether or not the political objective of the State giving such support and assistance is equally far reaching.”



The financial support, training, supply of weapons, intelligence and logistic support given by the United States to the contras was a breach of the principle of non-interference. “…no such general right of intervention, in support of an opposition within another State, exists in contemporary international law”, even if such a request for assistance is made by an opposition group of that State (see para 246 for more).



However, in a controversial finding, the Court held that the United States did not devise the strategy, direct the tactics of the contras or exercise control on them in manner so as to make their acts committed in violation of international law imputable to the United States (see in this respect “Determining US responsibility for contra operations under international law” 81 AMJIL 86).T he Court concluded that “a number of military and paramilitary operations of the contras were decided and planned, if not actually by United States advisers, then at least in close collaboration with them, and on the basis of the intelligence and logistic support which the United States was able to offer, particularly the supply aircraft provided to the contras by the United States” but not all contra operations reflected strategy and tactics wholly devised by the United States.

“In sum, the evidence available to the Court indicates that the various forms of assistance provided to the contras by the United States have been crucial to the pursuit of their activities, but is insufficient to demonstrate their complete dependence on United States aid. On the other hand, it indicates that in the initial years of United States assistance the contra force was so dependent. However, whether the United States Government at any stage devised the strategy and directed the tactics of the contras depends on the extent to which the United States made use of the potential for control inherent in that dependence. The Court already indicated that it has insufficient evidence to reach a finding on this point. It is a fortiori unable to determine that the contra force may be equated for legal purposes with the forces of the United 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 21 1 above). produce any entitlement to take collective countermeasures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate countermeasures on the part of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third State, the United States, and particularly could not justify intervention involving the use of force.” 4. The United States breached its customary international law obligation – not to violate the sovereignty of another State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its territorial sea.







The ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of the territorial sea or internal waters of Nicaragua “by persons in the pay or acting ion the instructions” of the United States and acting under its supervision with its logistical support. The United States did not issue any warning on the location or existence of mines and this resulted in injuries and increases in maritime insurance rates. The court found that the United States also carried out high-altitude reconnaissance flights over Nicaraguan territory and certain low-altitude flights, complained of as causing sonic booms. The basic concept of State sovereignty in customary international law is found in Article 2(1) of the UN Charter. State sovereignty extends to a State’s internal waters, its territorial sea and the air space above its territory. The United States violated customary international law when it laid mines in the territorial sea and internal waters of Nicaragua and when it carried out unauthorised overflights over Nicaraguan airspace by aircrafts that belong to or was under the control of the United States.

Material on the Nicaragua case

The following contains a list of scholarly articles and other material that discuss the Nicaragua case. If you would like to add to the list, please note your suggestions in the comment box. The judgment including separate opinions of individual judges and summaries of the judgment and orders The World Court and Jus Cogens, 81 AMJIL 93, Gorden A. Christenson. Christenson argues that an independent development of the customary law right divorced from the treaty can have wider consequences: We have then a double irony. The Court uses the United States position accepting the treaty norm against the threat or use of force also as a customary norm possibly having jus cogens quality, in part, to justify taking jurisdiction as a matter quite independent of the norm that otherwise falls under the multilateral treaty reservation. Since there are two separate sources of the law, the choice of the one source rather than the other means that the norm relied upon survives the jurisdictional bar to the use of the other. Yet the two norms are not different enough to undermine completely the content of the Charter norm. This formalism simply masks the more interesting question of the Court’s institutional claim, given the ineffectiveness of the UN Security system, to develop an international public order case by case, by breaking away form the strictures of the Charter and treaty norms. The Court untied the treaty norms from their constraints within the United Nations or regional collective security systems, a potentially destabilizing decision, one whose consequences are unforeseen. The decision based on the validity of an autonomous norm of customary international law free from the Charter is a constitutive one of potential great significance (81 AMJIL 100, 1987). Trashing customary international law, Antony D’Amato, 81 AMJIL 102 (1987) (full text): (D’Amato discusses the paucity of State practice examined by the international court of justice before concluding that the principle non-intervention formed part of customary international law. He argues that the acceptance of General Assembly resolutions do not manifest opinio juris. He states that the Court failed to consider that Article 2(4) continued to evolve through the years.) The World Court’s Achievement, Richard Falk, 81 AMJIL 106 (Falk takes a generally positive approach to the judgment, gives a good overview of the case and Judge Shwebel’s dissent) Drawing the right line, Tom J. Farer, 81 AMJIL 112 (Farer takes a cold-war contextual approach to the judgment and supports the Court’s narrow view of an armed attack and self defence). Some observations on the ICJ’s procedural and substantive innovations, Thomas M. Franck, 81 AMJIL 116 (criticizes the determination of relevant State practice in relation to non-intervention and the reliance on UN resolutions to illicit opinio juris (it alleges that the Court sought to harden soft law prematurely). Frank points out that the interventions falling short of armed attacks would not allow States to target rebel groups in another State’s territory even if the insurgency is planned, trained, armed and directed from that territory). Protecting the Court’s institutional interests: Why not the Marbury approach? Michael J. Glennon, 81 AMJIL 121 (discusses reservations before the ICJ and the Court’s prerogative to determine its own jurisdiction) Discretion to decline to exercise jurisdiction, Edward Gorden, 81 AMJIL 129 (discusses the discretionary power of the court to decline to exercise its jurisdiction at the merit stages). The Nicaragua judgment and the future of the law of force and self-defense, John Lawrence Hargrove 81AMJIL 135 (Hargrove criticizes the ICJ’s construction of the notion of collective self defense, armed attack and forcible countermeasures). Somber reflections on the compulsory jurisdiction of the international court, Mark Weston Janis, 81 AMJIL 144 Custom on a sliding scale, Frederic L. Kirgis 81 AMJIL 146 (Kirgis discusses the relationship between State practice and opinio juris, criticizes the methods (or lack thereof) of the Court in determining the customary law nature of Article 2(4) of the Charter. Points out that actual State practice on intervention did not support the Court’s findings). The International Court lives unto its name, Herbert W. Briggs, 81 AMJIL 78.

Determining US responsibility for contra operations under international law, Francis V. Boyle

Plaintiffs (petitioners) thus filed the instant special civil action for certiorari and asked the court to rescind and set aside the dismissal order on the ground that the respondent RTC Judge gravely abused his discretion in dismissing the action.

Le peuple, c’est moi!The world court and human rights, 81 AMJIL 173

ISSUES:

LJIL Symposium: Discussion of the ICJ Nicaragua Judgment

(1) Whether or not the plaintiffs have a cause of action.

The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?, Lori Fisler Damrosch (Abstract: At the time the United States withdrew from participation in the Nicaragua case at the International Court of Justice, the US government expressed concern that ‘the course on which the Court may now be embarked could do enormous harm to it as an institution and to the cause of international law’. This essay examines whether or to what extent the anticipated negative effects came to pass. It concludes that dire predictions of harm to the Court were overstated. Twenty-five years later, the rate at which states accept the Court’s jurisdiction has held steady. Only a few states have added jurisdictional reservations concerning military activities. The mix of cases being brought to the Court has shifted towards a more representative distribution. States are generally complying with the Court’s decisions, though some compliance problems remain. The most serious negative impact has been on the willingness of the United States (still the Court’s most active litigant) to participate fully in international dispute settlement.) LJIL Symposium: The Nicaragua Case: Its Impact, John Dugard LJIL Symposium: Response of Lori F. Damrosch to Comments by John Dugard, Lori F. Damrosch The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, by Marcelo Kohen(Abstract: This article focuses on the analysis by the International Court of Justice of the principle of non-intervention in domestic affairs in its judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua and contrasts it with the evolution of international law and practice in this field. It is proposed that the Court’s 1986 analysis not only remains of actuality today, but also constitutes a precursor to legal developments that have since taken place. This is particularly the case with regard to the relationship between the protection of human rights on the one hand and the safeguard of state sovereignty and the collective security regime on the other. The 1986 judgment helped to clarify the content of humanitarian assistance. It constituted the starting point for the development of this concept in a series of GA resolutions that were subsequently adopted. The controversial doctrine of ‘humanitarian intervention’, as well as state practice in violation of this principle, in no way led to modifying existing international law. Similarly, the new concept of ‘responsibility to protect’, which places emphasis on collective security and discounts unilateral action, has not led to the disappearance of the principle of nonintervention either.) Oposa vs. Factoran Case Digest (G.R. No. 101083, July 30, 1993)

(2) Whether or not the complaint raises a political issue. (3) Whether or not the original prayer of the plaintiffs result in the impairment of contracts. RULING: First Issue: Cause of Action. Respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for which any relief is provided by law. The Court did not agree with this. The complaint focuses on one fundamental legal right -- the right to a balanced and healthful ecology which is incorporated in Section 16 Article II of the Constitution. The said right carries with it the duty to refrain from impairing the environment and implies, among many other things, the judicious management and conservation of the country's forests. Section 4 of E.O. 192 expressly mandates the DENR to be the primary government agency responsible for the governing and supervising the exploration, utilization, development and conservation of the country's natural resources. The policy declaration of E.O. 192 is also substantially re-stated in Title XIV Book IV of the Administrative Code of 1987. Both E.O. 192 and Administrative Code of 1987 have set the objectives which will serve as the bases for policy formation, and have defined the powers and functions of the DENR. Thus, right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as DENR's duty to protect and advance the said right. A denial or violation of that right by the other who has the correlative duty or obligation to respect or protect or respect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLA, which they claim was done with grave abuse of discretion, violated their right to a balance and healthful ecology. Hence, the full protection thereof requires that no further TLAs should be renewed or granted. After careful examination of the petitioners' complaint, the Court finds it to be adequate enough to show, prima facie, the claimed violation of their rights. Second Issue: Political Issue. Second paragraph, Section 1 of Article VIII of the constitution provides for the expanded jurisdiction vested upon the Supreme Court. It allows the Court to rule upon even on the wisdom of the decision of the Executive and Legislature and to declare their acts as invalid for lack or excess of jurisdiction because it is tainted with grave abuse of discretion. Third Issue: Violation of the non-impairment clause.

FACTS: The plaintiffs in this case are all minors duly represented and joined by their parents. The first complaint was filed as a taxpayer's class suit at the Branch 66 (Makati, Metro Manila), of the Regional Trial Court, National capital Judicial Region against defendant (respondent) Secretary of the Department of Environment and Natural Reasources (DENR). Plaintiffs alleged that they are entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests. They further asseverate that they represent their generation as well as generations yet unborn and asserted that continued deforestation have caused a distortion and disturbance of the ecological balance and have resulted in a host of environmental tragedies. Plaintiffs prayed that judgement be rendered ordering the respondent, his agents, representatives and other persons acting in his behalf to cancel all existing Timber License Agreement (TLA) in the country and to cease and desist from receiving, accepting, processing, renewing or approving new TLAs.

The Court held that the Timber License Agreement is an instrument by which the state regulates the utilization and disposition of forest resources to the end that public welfare is promoted. It is not a contract within the purview of the due process clause thus, the nonimpairment clause cannot be invoked. It can be validly withdraw whenever dictated by public interest or public welfare as in this case. The granting of license does not create irrevocable rights, neither is it property or property rights. Moreover, the constitutional guaranty of non-impairment of obligations of contract is limit by the exercise by the police power of the State, in the interest of public health, safety, moral and general welfare. In short, the non-impairment clause must yield to the police power of the State. The instant petition, being impressed with merit, is hereby GRANTED and the RTC decision is SET ASIDE.

Defendant, on the other hand, filed a motion to dismiss on the ground that the complaint had no cause of action against him and that it raises a political question.

The RTC Judge sustained the motion to dismiss, further ruling that granting of the relief prayed for would result in the impairment of contracts which is prohibited by the Constitution.

RULE 7 WRIT OF KALIKASAN Section 1. Nature of the writ. - The writ is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated,

or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. Section 2. Contents of the petition. - The verified petition shall contain the following: (a) The personal circumstances of the petitioner; (b) The name and personal circumstances of the respondent or if the name and personal circumstances are unknown and uncertain, the respondent may be described by an assumed appellation; (c) The environmental law, rule or regulation violated or threatened to be violated, the act or omission complained of, and the environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. (d) All relevant and material evidence consisting of the affidavits of witnesses, documentary evidence, scientific or other expert studies, and if possible, object evidence; (e) The certification of petitioner under oath that: (1) petitioner has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency, and no such other action or claim is pending therein; (2) if there is such other pending action or claim, a complete statement of its present status; (3) if petitioner should learn that the same or similar action or claim has been filed or is pending, petitioner shall report to the court that fact within five (5) days therefrom; and (f) The reliefs prayed for which may include a prayer for the issuance of a TEPO. Section 3. Where to file. - The petition shall be filed with the Supreme Court or with any of the stations of the Court of Appeals. Section 4. No docket fees. - The petitioner shall be exempt from the payment of docket fees. Section 5. Issuance of the writ. - Within three (3) days from the date of filing of the petition, if the petition is sufficient in form and substance, the court shall give an order: (a) issuing the writ; and (b) requiring the respondent to file a verified return as provided in Section 8 of this Rule. The clerk of court shall forthwith issue the writ under the seal of the court including the issuance of a cease and desist order and other temporary reliefs effective until further order. Section 6. How the writ is served. - The writ shall be served upon the respondent by a court officer or any person deputized by the court, who shall retain a copy on which to make a return of service. In case the writ cannot be served personally, the rule on substituted service shall apply. Section 7. Penalty for refusing to issue or serve the writ. - A clerk of court who unduly delays or refuses to issue the writ after its allowance or a court officer or deputized person who unduly delays or refuses to serve the same shall be punished by the court for contempt without prejudice to other civil, criminal or administrative actions. Section 8. Return of respondent; contents. - Within a non-extendible period of ten (10) days after service of the writ, the respondent shall file a verified return which shall contain all defenses to show that respondent did not violate or threaten to violate, or allow the violation of any environmental law, rule or regulation or commit any act resulting to environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. All defenses not raised in the return shall be deemed waived. The return shall include affidavits of witnesses, documentary evidence, scientific or other expert studies, and if possible, object evidence, in support of the defense of the respondent. A general denial of allegations in the petition shall be considered as an admission thereof. Section 9. Prohibited pleadings and motions. - The following pleadings and motions are prohibited: (a) Motion to dismiss; (b) Motion for extension of time to file return; (c) Motion for postponement; (d) Motion for a bill of particulars; (e) Counterclaim or cross-claim; (f) Third-party complaint; (g) Reply; and (h) Motion to declare respondent in default. Section 10. Effect of failure to file return. - In case the respondent fails to file a return, the court shall proceed to hear the petition ex parte. Section 11. Hearing. - Upon receipt of the return of the respondent, the court may call a preliminary conference to simplify the issues, determine the possibility of obtaining stipulations or admissions from the parties, and set the petition for hearing. The hearing including the preliminary conference shall not extend beyond sixty (60) days and shall be given the same priority as petitions for the writs of habeas corpus, amparo and habeas data. Section 12. Discovery Measures. - A party may file a verified motion for the following reliefs: (a) Ocular Inspection; order — The motion must show that an ocular inspection order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. It shall state in detail the place or places to be inspected. It shall be supported by affidavits of witnesses having personal knowledge of the violation or threatened violation of environmental law.

After hearing, the court may order any person in possession or control of a designated land or other property to permit entry for the purpose of inspecting or photographing the property or any relevant object or operation thereon. The order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. (b) Production or inspection of documents or things; order – The motion must show that a production order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. After hearing, the court may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The production order shall specify the person or persons authorized to make the production and the date, time, place and manner of making the inspection or production and may prescribe other conditions to protect the constitutional rights of all parties. Section 13. Contempt. - The court may after hearing punish the respondent who refuses or unduly delays the filing of a return, or who makes a false return, or any person who disobeys or resists a lawful process or order of the court for indirect contempt under Rule 71 of the Rules of Court. Section 14. Submission of case for decision; filing of memoranda. - After hearing, the court shall issue an order submitting the case for decision. The court may require the filing of memoranda and if possible, in its electronic form, within a non-extendible period of thirty (30) days from the date the petition is submitted for decision. Section 15. Judgment. - Within sixty (60) days from the time the petition is submitted for decision, the court shall render judgment granting or denying the privilege of the writ of kalikasan. The reliefs that may be granted under the writ are the following: (a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage; (b) Directing the respondent public official, government agency, private person or entity to protect, preserve, rehabilitate or restore the environment; (c) Directing the respondent public official, government agency, private person or entity to monitor strict compliance with the decision and orders of the court; (d) Directing the respondent public official, government agency, or private person or entity to make periodic reports on the execution of the final judgment; and (e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners. Section 16. Appeal. - Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration, any party may appeal to the Supreme Court under Rule 45 of the Rules of Court. The appeal may raise questions of fact. Section 17. Institution of separate actions. - The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative actions.

In re Yamashita Facts: General Tomoyuki Yamashita is the Commanding General of the Japanese ImperialArmy. When he surrendered in 1945, an American military commission tried him oncharges that he permitted atrocities against both civilians and prisoners of war, inviolation of the law of war.The bills of particulars, filed by the prosecution by order of the commission, allege aseries of 123 acts, committed by members of the forces under petitioner's command.The first item specifies the execution of a 'a deliberate plan and purpose to massacre andexterminate a large part of the civilian population of Batangas Province, and to devastateand destroy public, private and religious property therein, as a result of which more than25,000 men, women and children, all unarmed noncombatant civilians, were brutallymistreated and killed, without cause or trial, and entire settlements were devastated anddestroyed wantonly and without military necessity.' Other items specify acts of violence,cruelty and homicide inflicted upon the civilian population and prisoners of war, acts ofwholesale pillage and the wanton destruction of religious monuments. It is not denied that such acts directed against the civilian population of an occupiedcountry and against prisoners of war are recognized in international law as violations ofthe law of war under Fourth Hague Convention. But it is urged t at the charge does notallege that petitioner has either committed or directed the commission of such acts, andconsequently that no violation is charged as against him. But this overlooks the fact thatthe gist of the charge is an unlawful breach of duty by petitioner as an army commanderto control the operations of the members of his command by 'permitting them to commit'the extensive and widespread atrocities specified. The question then is whether the law of war imposes on an army commander a duty totake such appropriate measures as are within his power to control the troops under hiscommand for the prevention of the specified acts which are violations of the law of warand which are likely to attend the occupation of hostile territory by an uncontrolledsoldiery, and whether he may be charged with personal responsibility for his failure totake such measures when violations result. That this was the precise issue to be tried wasmade clear by the statement of the prosecution at the opening of the trial. Issue: Yamashita’s counsel applied leave to file petitions for writs of habeas corpus andprohibition, challenging the jurisdiction and legal authority of the commission .Held: The writs were DENIED.The court found that Congress had legally authorized the commission's establishmentunder the war powers, and that the charge was adequate to state a violation of the law ofwar.It is evident that the conduct of military operations by troops whose excesses areunrestrained by the orders or efforts of their commander would almost certainly result inviolations which it is the purpose of the law of war to prevent. Its purpose to protectcivilian populations and prisoners of war from brutality would largely be defeated if thecommander of an invading army could with impunity neglect to take reasonable measuresfor their protection. Hence the law of war presupposes that its violation is to be avoidedthrough the control of the operations of war by commanders who are to some extentresponsible for their subordinates.Command responsibility, sometimes referred to as the Yamashita standard or the Medinastandard, is the doctrine of hierarchical accountability in cases of war crimes.

Thedoctrine was established by the Hague Conventions IV (1907) and X (1907).The "Yamashita standard" is based upon the precedent set by the United States SupremeCourt in the case of Japanese General Tomoyuki Yamashita. He was prosecuted, in a stillcontroversial trial, for atrocities committed by troops under his command in thePhilippines. Yamashita was charged with "unlawfully disregarding and failing todischarge his duty as a commander to control the acts of members of his command bypermitting them to commit war crimes."The "Medina standard" is based upon the prosecution of US Army Captain ErnestMedina in connection with the My Lai Massacre during the Vietnam War. It holds that acommanding officer, being aware of a human rights violation or a war crime, will be heldcriminally liable when he does not take action. (Medina was, however, acquitted of allcharges.)

CASE CONCERNING THE BARCELONA TRACTION, LIGHT AND POWER COMPANY, LIMITED (SECOND PHASE) Judgment of 5 February 1970 In its judgment in the second phase of the case concerning the Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), the Court rejected Belgium's claim by fifteen votes to one. The claim, which was brought before the Court on 19 June 1962, arose out of the adjudication in bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada. Its object was to seek reparation for damage alleged by Belgium to have been sustained by Belgian nationals, shareholders in the company, as a result of acts said to be contrary to international law committed towards the company by organs of the Spanish State. The Court found that Belgium lacked jus standi to exercise diplomatic protection of shareholders in a Canadian company with respect to measures taken against that company in Spain. Judges Petr�n and Onyeama appended a joint declaration to the Judgment; Judge Lachs appended a declaration. President Bustamante y Rivero and Judges Sir Gerald Fitzmaurice, Tanka, Jessup, Morelli, Padilla Nervo, Gros and Ammoun appended Separate Opinions. Judge ad hoc Riphagen appended a Dissenting Opinion. Background of Events in the Case (paras. 8-24 of the Judgment) The Barcelona Traction, Light and Power Company, Limited, was incorporated in 1911 in Toronto (Canada), where it has its head office. For the purpose of creating and developing an electric power production and distribution system in Catalonia (Spain) it formed a number of subsidiary companies, of which some had their registered offices in Canada and the others in Spain. In 1936 the subsidiary companies supplied the major part of Catalonia's electricity requirements. According to the Belgian Government, some years after the first world war Barcelona Traction share capital came to be very largely held by Belgian nationals, but the Spanish Government contends that the Belgian nationality of the shareholders is not proven. Barcelona Traction issued several series of bonds, principally in sterling. The sterling bonds were serviced out of transfers to Barcelona Traction effected by the subsidiary companies operating in Spain. In 1936 the servicing of the Barcelona Traction bonds was suspended on account of the Spanish civil war. After that war the Spanish exchange control authorities refused to authorize the transfer of the foreign currency necessary for the resumption of the servicing of the sterling bonds. Subsequently, when the Belgian Government complained of this, the Spanish Government stated that the transfers could not be authorized unless it were shown that the foreign currency was to be used to repay debts arising from the genuine importation of foreign capital into Spain and that this had not been established. In 1948 three Spanish holders of recently acquired Barcelona Traction sterling bonds petitioned the court of Reus (Province of Tarragona) for a declaration adjudging the company bankrupt, on account of failure to pay the interest on the bonds. On 12 February 1948 a judgment was given declaring the company bankrupt and ordering the seizure of the assets of Barcelona Traction and of two of its subsidiary companies. Pursuant to this

judgment the principal management personnel of the two companies were dismissed and Spanish directors appointed. Shortly afterwards, these measures were extended to the other subsidiary companies. New shares of the subsidiary companies were created, which were sold by public auction in 1952 to a newly-formed company, Fuerzas Electricas de Cataluna, S.A. (Fecsa), which thereupon acquired complete control of the undertaking in Spain. Proceedings were brought without success in the Spanish courts by various companies or persons. According to the Spanish Government, 2,736 orders were made in the case and 494 judgments given by lower and 37 by higher courts before it was submitted to the International Court of Justice. The Court found that in 1948 Barcelona Traction, which had not received a judicial notice of the bankruptcy proceedings, and was not represented before the Reus court, took no proceedings in the Spanish courts until 18 June and thus did not enter a plea of opposition against the bankruptcy judgment within the time-limit of eight days from the date of publication of the judgment laid down in Spanish legislation. The Belgian Government contends, however, that the notification and publication did not comply with the relevant legal requirements and that the eight-day time-limit never began to run. Representations were made to the Spanish Government by the British, Canadian, United States and Belgian Governments as from 1948 or 1949. The interposition of the Canadian Government ceased entirely in 1955. Proceedings before the International Court and the Nature of the Claim (paras. 1-7 and 26-31 of the Judgment) The Belgian Government filed a first Application with the Court against the Spanish Government in 1958. In 1961 it gave notice of discontinuance of the proceedings, with a view to negotiations between the representatives of the private interests concerned, and the case was removed from the Court's General List. The negotiations having failed, the Belgian Government on 19 June 1962 submitted to the Court a new Application. In 1963 the Spanish Government raised four preliminary objections to this Application. By its Judgment of 24 July 1964, the Court rejected the first and second objections and joined the third and fourth to the merits. In the subsequent written and oral proceedings the Parties supplied abundant material and information. The Court observed that the unusual length of the proceedings was due to the very long time-limits requested by the Parties for the preparation of their written pleadings and to their repeated requests for an extension of chose limits. The Court did not find that it should refuse those requests, but it remained convinced that it was in the interest of the authority of international justice for cases to be decided without unwarranted delay. The claim submitted to the Court had been presented on behalf of natural and juristic persons, alleged to be Belgian nationals and shareholders in Barcelona Traction, a company incorporated in Canada and having its head office there. The object of the Application was reparation for damage allegedly caused to those persons by the conduct, said to be contrary to international law, of various organs of the Spanish State towards that company. The third preliminary objection of the Spanish Government, which had been joined to the merits, was to the effect that the Belgian Government lacked capacity to submit any claim in respect of wrongs done to a Canadian company even if the shareholders were Belgian. The fourth preliminary objection, which was also joined to the merits, was to the effect that local remedies available in Spain had not been exhausted. The case submitted to the Court principally concerned three States, Belgium, Spain and Canada, and it was accordingly necessary to deal with a series of problems arising out of this triangular relationship. The Belgian Government's jus standi (paras. 32-101 of the Judgment) The Court first addressed itself to the question, raised by the third preliminary objection, which had been joined to the merits, of the right of Belgium to exercise diplomatic protection of Belgian shareholders in a company incorporated in Canada, the measures complained of having been taken in relation not to any Belgian national but to the company itself. The Court observed that when a State admitted into its territory foreign investments or foreign nationals it was bound to extend to them the protection of the law and assumed obligations concerning the treatment to be afforded them. But such obligations were not absolute. In order to bring a claim in respect of the breach of such an obligation, a State must first establish its right to do so. In the field of diplomatic protection, international law was in continuous evolution and was called upon to recognize institutions of municipal law. In municipal law, the concept of the company was founded on a firm distinction between the rights of the company and those of the shareholder. Only the company, which was endowed with legal personality, could take action in respect of matters that were of a corporate character. A wrong done to the company frequently caused prejudice to its shareholders, but this did not imply that both were entitled to claim compensation. Whenever a shareholder's interests were harmed by an act done to the company, it was to the latter that he had to look to institute appropriate action. An act infringing only the company's rights did not involve responsibility towards the shareholders, even if their interests were affected. In order for the situation to be different, the act complained of must be aimed at the direct rights of the shareholder as such (which was not the case here since the Belgian Government had itself admitted that it had not based its claim on an infringement of the direct rights of the shareholders). International law had to refer to those rules generally accepted by municipal legal systems. An injury to the shareholder's interests resulting from an injury to the rights of the company was insufficient to found a claim. Where it was a question of an unlawful act committed against a company representing foreign capital, the general rule of international law authorized the national State of the company alone to exercise diplomatic protection for the

purpose of seeking redress. No rule of international law expressly conferred such a right on the shareholder's national State. The Court considered whether there might not be, in the present case, special circumstances for which the general rule might not take effect. Two situations needed to be studied: (a) the case of the company having ceased to exist, and (b) the case of the protecting State of the company lacking capacity to take action. As regards the first of these possibilities, the Court observed that whilst Barcelona Traction had lost all its assets in Spain and been placed in receivership in Canada, it could not be contended that the corporate entity of the company had ceased to exist or that it had lost its capacity to take corporate action. So far as the second possibility was concerned, it was not disputed that the company had been incorporated in Canada and had its registered office in that country, and its Canadian nationality had received general recognition. The Canadian Government had exercised the protection of Barcelona Traction for a number of years. If at a certain point the Canadian Government ceased to act on behalf of Barcelona Traction, it nonetheless retained its capacity to do so, which the Spanish Government had not questioned. Whatever the reasons for the Canadian Government's change of attitude, that fact could not constitute a justification for the exercise of diplomatic protection by another government. It had been maintained that a State could make a claim when investments by its nationals abroad, such investments being part of a State's national economic resources, were prejudicially affected in violation of the right of the State itself to have its nationals enjoy a certain treatment. But, in the present state of affairs, such a right could only result from a treaty or special agreement. And no instrument of such a kind was in force between Belgium and Spain. It had also been maintained that, for reasons of equity, a State should be able, in certain cases, to take up the protection of its nationals, shareholders in a company which had been the victim of a violation of international law. The Court considered that the adoption of the theory of diplomatic protection of shareholders as such would open the door to competing claims on the part of different States, which could create an atmosphere of insecurity in international economic relations. In the particular circumstances of the present case, where the company's national State was able to act, the Court was not of the opinion that jus standi was conferred on the Belgian Government by considerations of equity. The Court's Decision (paras. 102 and 103 of the Judgment) The Court took cognizance of the great amount of documentary and other evidence submitted by the Parties and fully appreciated the importance of the legal problems raised by the allegation which was at the root of the Belgian claim and which concerned denials of justice allegedly committed by organs of the Spanish State. However, the possession by the Belgian Government of a right of protection was a prerequisite for the examination of such problems. Since no jus standi before the Court had been established, it was not for the Court to pronounce upon any other aspect of the case. Accordingly, the Court rejected the Belgian Government's claim by 15 votes to 1, 12 votes of the majority being based on the reasons set out above. DECLARATIONS AND SEPARATE AND DISSENTING OPINIONS Judge ad hoc Riphagen appended to the Judgment a Dissenting Opinion in which he stated that he was unable to concur in the Judgment as the legal reasoning followed by the Court appeared to him to fail to appreciate the nature of the rules of customary public international law applicable in the present case. Among the fifteen members of the majority, three supported the operative provisions of the Judgment (rejecting the Belgian Government's claim) for different reasons, and appended Separate Opinions to the Judgment. Judge Tanka stated that the two preliminary objections joined to the merits ought to have been dismissed, but that the Belgian Government's allegation concerning denials of justice was unfounded. Judge Jessup came to the conclusion that a State, under certain circumstances, had a right to present a diplomatic claim on behalf of shareholders who were its nationals but that Belgium had not succeeded in proving the Belgian nationality, between the critical dates, of those natural and juristic persons on whose behalf it had sought to claim. Judge Gros held that it was the State whose national economy was adversely affected that possessed the right to take action but that proof of Barcelona Traction appurtenance to the Belgian economy had not been produced. Among the twelve members of the majority who supported the operative provision of the Judgment on the basis of the reasoning set out in the Judgment (lack of jus standi on the part of the shareholders' national State), President Bustamante y Rivero and Judges Sir Gerald Fitzmaurice, Morelli, Padilla Nervo and Ammoun (Separate Opinions) and Judges Padrone and Onyeama (joint declaration) and Judge Lachs (declaration) stated that nevertheless there were certain differences between their reasoning and that contained in the Judgment, or that there were certain observations which they wished to add. (Judge Sir Muhammad Zafrulla Khan had informed the President at the beginning of the Preliminary Objections stage that, having been consulted by one of the Parties concerning the case before his election as a Member of the Court, he considered that he ought not to participate in its decision.) NEER CLAIM - US v. Mexico, 4 RIAA (1926) Neer Claim CASE SUMMARY

Facts: In 1924, Paul Neer, an American citizen, was killed in Mexico by a group of armed men. This claim was presented to the U.S.–Mexico General Claims Commission alleging that the Mexican authorities had shown culpable lack of diligence in prosecuting the culprits. Held: The claim must be disallowed, since there was no evidence of such lack of diligence as to constitute an international delinquency: the propriety of governmental acts was decided according to international minimum standards, and the treatment of an alien, ‘in order to constitute an international delinquency, should amount to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency’, it being immaterial whether ‘the insufficiency proceeds from deficient execution of an intelligent law or from the fact the laws of the country do not empower the authorities to measure up to international standards.’

CASE EXCERPTS This claim is presented by the United States against the United Mexican States in behalf of L. Fay H. Neer, widow, and Pauline E. Neer, daughter, of Paul Neer, who, at the time of his death, was employed as superintendent of a mine in the vicinity of Guanacevi, State of Durango, Mexico. On November 16, 1924, about eight o'clock in the evening, when he and his wife were proceeding on horseback from the village of Guanacevi to their home in the neighborhood, they were stopped by a number of armed men who engaged Neer in a conversation, which Mrs. Neer did not understand, in the midst of which bullets seem to have been exchanged and Neer was killed. It is alleged that, on account of this killing, his wife and daughter, American citizens, sustained damages in the sum of $100,000.00; that the Mexican authorities showed an unwarrantable lack of diligence or an unwarrantable lack of intelligent investigation in prosecuting the culprits; and that therefore the Mexican Government ought to pay to the claimants the said amount. As to lack of diligence, or lack of intelligent investigation, on the part of the Mexican authorities, after the killing of Paul Neer had been brought to their notice, it would seem that in the early morning after the tragedy these authorities might have acted in a more vigorous and effective way than they did… The Commission is mindful that the task of the local Mexican authorities was hampered by the fact that the only eyewitness of the murder was unable to furnish them any helpful information. There might have been reason for the higher authorities of the State to intervene in the matter, as they apparently did. But in the view of the Commission there is a long way between holding that a more active and more efficient course of procedure might have been pursued, on the one hand, and holding that this record presents such lack of diligence and of intelligent investigation as constitutes an international delinquency, on the other hand.

corpse; that on November 17 the Judge proceeded to the examination of some witnesses, among them Mrs. Neer; that investigations were continued for several days; that arrests were made of persons suspected; and that they were subsequently released for want of evidence. The American Agency in rebuttal offers nothing but affidavits stating individual impressions or suppositions. In the light of the entire record in this case the Commission is not prepared to hold that the Mexican authorities have shown such lack of diligence or such lack of intelligent investigation in apprehending and punishing the culprits as would render Mexico liable before this Commission. The Commission accordingly decides that the claim of the United States is disallowed.

Separate opinion of Commissioner Fred K. Nielsen (p. 62-66) The sovereign rights of a nation with regard to the enactment and execution of laws of this character within its jurisdiction is of course well understood. Vattel, in asserting a general principle in relation to these rights, adds some observations as to the respect that should be accorded to the measures employed by nations in the exercise of such rights. He says: "The sovereignty united to the domain establishes the jurisdiction of the nation in her territories, or the country that belongs to her. It is her province, or that of her sovereign, to exercise justice in all the places under her jurisdiction, to take cognizance of the crimes committed, and the differences that arise in the country. "Other nations ought to respect this right. And, as the administration of justice necessarily requires that every definitive sentence, regularly pronounced, be esteemed just, and executed as such—when once a cause in which foreigners are interested has been decided in form, the sovereign of the defendants, can not hear their complaints. To undertake to examine the justice of a definitive sentence is an attack on the jurisdiction of him who has passed it. The prince, therefore, ought not to interfere in the causes of his subjects in foreign countries, and grant them his protection, excepting in cases where justice is refused, or palpable and evident injustice done, or rules and forms openly violated, or, finally, an odius distinction made, to the prejudice of his subjects, or of foreigners in general." Law of Nations. (Chitty's edit. 1869, Book II, pp. 165-166.) Although there is this clear recognition in international law of the scope of sovereign rights relating to matters that are subject of domestic regulation, it is also clear that the domestic law and the measures employed to execute it must conform to the requirements of the supreme law of members of the family of nations which is international law, and that any failure to meet those requirements is a failure to perform a legal duty, and as such an international delinquency. Hence a strict conformity by authorities of a government with its domestic law is not necessarily conclusive evidence of the observance of legal duties imposed by international law, although it may be important evidence on that point.

The Commission recognizes the difficulty of devising a general formula for determining the boundary between an international delinquency of this type and an unsatisfactory use of power included in national sovereignty. In 1910 John Bassett Moore observed that he did "not consider it to be practicable to lay down in advance precise and unyielding formulas by which the question of a denial of justice may in every instance be determined" (American Journal of International Law, 1910, p. 787), and in 1923 De Lapradelle and Politis stated that the evasive and complex character (le caractère fuyant et complexe) of a denial of justice seems to defy any definition (Recueil des Aibitrages Internationaux, II, 1923, p. 280). It is immaterial whether the expression "denial of justice" be taken in that broad sense in which it applies to acts of executive and legislative authorities as well as to acts of the courts, or whether it be used in a narrow sense which confines it to acts of judicial authorities only; for in the latter case a reasoning, identical to that which—under the name of "denial of justice"—applies to acts of the judiciary, will apply—be it under a different name —to unwarranted acts of executive and legislative authorities. Without attempting to announce a precise formula, it is in the opinion of the Commission possible to go a little further than the authors quoted, and to hold (first) that the propriecy of governmental acts should be put to the test of international standards, and (second) that the treatment of an alien, in order to constitute an international delinquency, should amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency. Whether the insufficiency proceeds from deficient execution of an intelligent law or from the fact that the laws of the country do not empower the authorities to measure up to international standards is immaterial. (emphasis supplied)

It may perhaps be said with a reasonable degree of precision that the propriety of governmental acts should be determined according to ordinary standards of civilization, even though standards differ considerably among members of the family of nations, equal under the law. And it seems to be possible to indicate with still further precision the broad, general ground upon which a demand for redress based on a denial of justice may be made by one nation upon another. It has been said that such a demand is justified when the treatment of an alien reveals an obvious error in the administration of justice, or fraud, or a clear outrage. The thought is expressed to some extent in an opinion given by Commissioner Bertinatti in the Medina case under the Convention of July 2, I860, between Costa Rica and the United States in which it was said:

It is not for an international tribunal such as this Commission to decide, whether another course of procedure taken by the local authorities at Guanacevi might have been more effective. On the contrary, the grounds of liability limit its inquiry to whether there is convincing evidence either (1) that the authorities administering the Mexican law acted in an outrageous way, in bad faith, in wilful neglect of their duties, or in a pronounced degree of improper action, or (2) that Mexican law rendered it impossible for them properly to fulfil their task. No attempt is made to establish the second point. The first point is negatived by the full record of police and judicial authorities produced by the Mexican Agent, though the Commission feels bound to state once more that in its opinion better methods might have been used. From this record it appears that the local authorities, on the very night of the tragedy, November 16, went to the spot where the killing took place and examined the

There may of course be honest differences of opinion with respect to the character of governmental acts, but it seems to be clear that an international tribunal is guided by a reasonably certain and useful standard if it adheres to the position that in any given case involving an allegation of a denial of justice it can award damages only on the basis of convincing evidence of a pronounced degree of improper governmental administration.

"It being against the independence as well as the dignity of a nation that a foreign government may interfere either with its legislation or the appointment of magistrates for the administration of justice, the consequence is that in the protection of its subjects residing abroad a government, in all matters depending upon the judiciary power, must confine itself to secure for them free access to the local tribunals, besides an equality oj treatment with the natives according to the conventional law established by treaties. "Only a formal denial of justice, the dishonesty or prevaricatio of a judge legally proved, 'the case of torture, the denial of the means of defense at the trial, or gross injustice, in re minime dubia', (see opinion of Phillimore in the controversy between the governments of Great Britain and Paraguay) may justify a government in extending further its protection." Moore, International Arbitrations, Vol. 3, p. 2317.

It was argued in behalf of the United States that there was an unwarranted delay in steps taken to apprehend the persons who killed Neer; that the proceedings of investigation were of such a public character as to put persons implicated in the crime on guard and to enable them to escape; that detectives might have been employed to apprehend the offenders. I

am of the opinion that better methods might have been used by the Mexican authorities, and that the action taken by them may well be adversely criticized. But in the light of the entire record in the case before us I am not prepared to decide that a charge of a denial of justice can be maintained against the Government of Mexico conformably to the principles which according to my views as above expressed should govern the action of the Commission. I accordingly concur in the decision that the claim of the United States is disallowed.

Jean-Baptiste Caire Claim(1929) - UK v. Albania, Corfu Channel Case, (1949) ICJ Rep FACTS: On 11 December 1914, Jean-Baptiste Caire, a French national, was unlawfully shot and killed at an army barracks in Mexico by two Mexican army officers, a major and a captain aided by a few privates, after Caire refused a demand by one of the officers to pay a sum of money. This prompted Caire’s widow to sue Mexico for indemnity. ISSUE: WON Mexico is responsible for actions of individual military personnel acting without orders or against the wishes of their commanding officers HELD: YES. The French-Mexican Claims Commission held that Mexico was internationally responsible for the conduct of the army officers. In this regard, Presiding Commissioner Verzijl observed that, under the doctrine of objective responsibility (state responsibility for the acts of state officials or state organs even in the absence of “fault” on the part of the state), a state is internationally responsible for acts committed by its officials or organs outside their competence if the officials or organs “acted at least to all appearances as competent officials or organs, or… used powers or methods appropriate to their official capacity… .” Here, The officers in question … consistently conducted themselves as officers …; in this capacity they began by exacting the remittance of certain sums of money; they continued by having the victim taken to a barracks of the occupying troops; and it was clearly because of the refusal of Caire to meet their repeated demands that they finally shot him. Under these circumstances, there remains no doubt that, even if they are to be regarded as having acted outside their competence, which is by no means certain, and even if their superior officers issued a counter-order, these two officers have involved the responsibility of the State, in view of the fact that they acted in their capacity of officers and used the means placed at their disposition by virtue of that capacity. Indemnity awarded. Corfu Channel Case (United Kingdom v. Albania) The Corfu Channel Case December 7, 2014 by admin Leave a Comment By Aarti Goyal, UILS, Chandigarh Editor’s Note: The general principles of International law are among the sources of national and International Law, which have long been recognized and applied in disputes. The Corfu Channel case addressed the question of civil liability of Albania, which had placed mines within its sovereign waters and subsequently caused damage to two naval Destroyers of the United Kingdom’s navy. The exclusive territorial control exercised by Albania within its water frontiers has a bearing on the burden of proof with respect to the country’s activity. The United Kingdom which was an unfair victim of the mines placed in the Corfu strait and the International Court of Justice found that Albania was responsible for loss of human life and the machinery suffered by the United Kingdom, even though the United Kingdom had violated the sovereignty of Albania’s territorial waters. Compensation was hence ordered. INTRODUCTION General principles of International Law are among the sources of national and international law which have long been recognized and applied in disputes between states. According to Restatement of the Law (Third), the Foreign Relations of the United States, “General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate.” Article 38 (1)(c) of the statute of the International Court of Justice authorizes the Court to apply the general principle of law recognized by civilized nations in addition to international conventions and custom, which are also the two main sources of international law. It makes National legal systems as a source of law for the creation of international law. The general principles constitute both the backbone of the

body of law governing international dealings and the potent cement that binds together the various and often disparate cogs and wheels of the normative framework of the community.

Corfu Channel case, addressed the question of Albanian civil liability for the mining of the Corfu Channel and subsequent damage to two British naval vessels that resulted from striking mines. In discussing whether the United Kingdom could establish the knowledge and responsibility of Albania for the laying of the mines, the Court’s opinion stated: the fact of this exclusive territorial control exercised by a State within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that State as to such events. By reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be allowed a more liberal recourse to inferences of fact and circumstantial evidence. This indirect evidence is admitted in all systems of law and its use is recognized by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion.[i]

On 22 October 1946 in the Corfu Strait, two British destroyers struck mines in Albanian waters and suffered damage, including serious loss of life. On 22 May 1947, the Government of the United Kingdom filed an Application instituting proceedings against the Government of the People’s Republic of Albania seeking a decision to the effect that the Albanian Government was internationally responsible for the consequences of the incident and must make reparation or pay compensation. Albania, for its part, had submitted a counter-claim against the United Kingdom for having violated Albanian territorial waters. On 9 April 1949, the Court found that Albania was responsible for the explosions and for the resulting damage and loss of human life suffered by the United Kingdom. The Court also found that the later minesweeping by the United Kingdom had violated Albanian sovereignty. On 19 December 1949, the Court ordered Albania to pay the United Kingdom compensation.

GENERAL PRINCIPLES: MEANING AND CONCEPT

The General Principals of Law recognized by civilized nations form part of the law to be applied by the permanent forum of family nations- the International Court of Justice. General principles of law recognized by civilized nations – or more appropriate: the community of nations – are a manifestation of international law. They are included in Article 38 Para 1 of the Statute of the International Court of Justice and have been classified as a primary source. Sir Hersch Lauterpacht noted this provision was first introduced into the Statute of the PCIJ by the Commission of Jurists charged with drawing it up in order to avoid the problem of ‘non-liquet’ – the argument that a court could not decide a matter because there was no law on the subject. If there is no treaty relevant to the dispute, or if there is no rule of customary international law that can be applied, the court is directed to apply general principles of law.[ii] The general principles of law recognized by civilized nations comprise the third category of rules which the International Court of Justice must apply in accordance with Article 38 of the Statute of International Court of Justice. The phrase ‘general principals of law recognized by civilized nations’ means principles so general as to apply within all systems of law that have achieved a comparable state of development.[iii]The Statute of the International Court of Justice authorizes the Court to apply the general principles of law recognized by civilized nations in addition to international conventions and customs, which are the two main sources of International Law. Professor Gutteridge is of the view that the object of the invocation of the general principles is with a view to providing the judges on the one hand, with a guide to the exercise of his choice of a new principle and, on the other hand, to prevent him from blindly following the teaching of the jurists with which he is most familiar without first carefully weighing the merits and considering whether a principle of private law does in fact satisfy the demands of justice. The Special Arbitral Tribunal between Germany and Portugal also applied the general principles of law in the Maziua and Naulilla Cases where the arbitrators observed that in the absence of rules on International Law applicable to the facts in dispute, they were of opinion that it was their duty to fill the gap by applying principles of equity fully taking into account the spirit of International Law, which is applied by way of analogy and its evolution. [iv] Oppenheim states that, “the intention is to authorize the court to apply the general principles of municipal jurisprudence, in particular of private law, in so far as they are applicable to relations of state”.[v] In thus opening the way for the operation as international law of general principles of municipal jurisprudence, it must be noted that such a principles are in the municipal sphere applied against a background of national laws and procedures. Unless there is some sufficient counterpart to them in the international sphere, or sufficient allowance is made for them in abstracting the principle from various municipal rules, the operation of the principle as source of particular rule of international law will be distorted. At present, in the world community, two distinct classes of general principles may be relied upon. First, there are general principles of international law, namely those principles which can be inferred or extracted by way of induction and generalization from conventional and

customary rules of international law. Some of these principles have to be restated by States in international instruments designed to set out the fundamental standards of behavior that should govern the relations among members of the international community. Secondly, there are principles that are peculiar to a particular branch of international law. These Principles are general legal standards overarching the whole body of law governing a specific area. Although generalized principles or concepts that may be termed community value-judgments inform and pervade the political and therefore the legal orders in the broadest sense, they do not themselves constitute as such binding legal norms. This can only happen if they have been accepted as legal norms by the international community through the mechanisms and techniques of international law creation.[vi] General principles of law as source of international law enables rules of law to exist which can fill gaps or weakness in the law which might otherwise be left by the operation of custom and treaty, and provide a background of legal principles in the light of which customs and treaties have to be applied and as such it may operate to modify their application. General principles of law, however, do not have just a supplementary role, but may give rise to rules of independent legal force.[vii] CORFU CHANNEL CASE The Corfu Channel case was the first contentious case heard by the International Court of Justice, the supreme arbitration organ of the United Nations and one of the principal sources of authoritative rulings on international law. FACTS OF THE CASE: On May 15th 1946 the British warships passed through the Channel without the approval of the Albanian government and were shot at. Later, on October 22nd, 1946, a squadron of British warships (two cruisers and two destroyers), left the port of Corfu and proceeded northward through a channel previously swept for mines in the North Corfu Strait. Both destroyers were struck by mine and were heavily damaged. This incident resulted also in many deaths. The two ships were mined in Albanian territorial waters in a previously swept and check-swept channel. After the explosions of October 22nd, the United Kingdom Government sent a note to the Albanian Government, in which it announced its intention to sweep the Corfu Channel shortly. The Albanian reply, which was received in London on October 31st, stated that the Albanian Government would not give its consent to this unless the operation in question took place outside Albanian territorial waters. Meanwhile, at the United Kingdom Government’s request, the International Central Mine Clearance Board decided, in a resolution of November 1st, 1946, that there should be a further sweep of the Channel, subject to Albania’s consent. The United Kingdom Government having informed the Albanian Government, in a communication of November 10th, that the proposed sweep would take place on November 12th, the Albanian Government replied on the 11th, protesting against this ‘unilateral decision of His Majesty’s Government’. It said it did not consider it inconvenient that the British fleet should undertake the sweeping of the channel of navigation, but added that, before sweeping was carried out, it considered it indispensable to decide what area of the sea should be deemed to constitute this channel, and proposed the establishment of a Mixed Commission for the purpose. It ended by saying that any sweeping undertaken without the consent of the Albanian Government outside the channel thus constituted, i.e., inside Albanian territorial waters where foreign warships have no reason to sail, could only be considered as a deliberate violation of Albanian territory and sovereignty. After this exchange of notes, ‘Operation Retail’ took place on November 12th and 13th. One fact of particular importance is that the North Corfu Channel constitutes a frontier between Albania and Greece, that a part of it is wholly within the territorial waters of these States, and that the Strait is of special importance to Greece by reason of the traffic to and from the port of Corfu. ISSUES: The British government claimed the minefield which caused the explosions was laid between May 15th, 1946, and October 22nd, 1946, by or with the approval or knowledge of the Albanian Government. Thus Albania was responsible for the explosions and loss of life and had to compensate the UK government. In addition to the passage of the United Kingdom warships on October 22nd, 1946, the second question in the Special Agreement relates to the acts of the Royal Navy in Albanian waters on November 12th and 13th, 1946 when the British government carried out a minesweeping operation called ‘Operation Retail’ without the consent of Albania. UK held the opinion the passage on October 22nd, 1946 was innocent and that according to rules of international law it had the right to innocent passage through the North Corfu Channel as it is considered part of international highways and does not need a previous approval of the territorial state. The Albanian Government does not dispute that the North Corfu Channel is a strait in the geographical sense; but it denies that this Channel belongs to the class of international highways through which a right of passage exists, on the grounds that it is only of secondary importance and not even a necessary route between two parts of the high seas, and that it is used almost exclusively for local traffic to and from the ports of Corfu. Thus a previous approval of the territorial state is necessary. 1) Should the North Corfu Channel as it is considered part of international highways?

2) Is Albania responsible under international law for the explosions which occurred on the 22nd October 1946 in Albanian waters and for the damage and loss of human life which resulted from them and is there any duty to pay compensation? ANALYSIS: The court analyzed the geographical situation of the channel connecting two parts of the high seas and was in fact frequently being used for international navigation. Taking into account these various considerations, the Court concluded that the North Corfu Channel should be considered as belonging to the class of international highways through which an innocent passage does not need special approval and cannot be prohibited by a coastal State in time of peace. The UK government claimed that on October 22nd, 1946, Albania neither notified the existence of the minefield, nor warned the British warships of the danger they were approaching. According to the principle of state responsibility, they should have done all necessary steps immediately to warn ships near the danger zone, more especially those that were approaching that zone. In fact, nothing was attempted by the Albanian authorities to prevent the disaster. These grave omissions involve the international responsibility of Albania.But Albania’s obligation to notify shipping of the existence of mines in her waters depends on her having obtained knowledge of that fact in sufficient time before October 22nd; and the duty of the Albanian coastal authorities to warn the British ships depends on the time that elapsed between the moment that these ships were reported and the moment of the first explosion. CONCLUSION OF THE COURT: The Court therefore reached the conclusion that Albania is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life which resulted from them, and that there is a duty upon Albania to pay compensation to the United Kingdom. In the second part of the Special Agreement, the following question is submitted to the Court: Has the United Kingdom under international law violated the sovereignty of the Albanian People’s Republic by reason of the acts of the Royal Navy in Albanian waters on the 22nd October and on the 12th and 13th November 1946 and is there any duty to give satisfaction? Albania was in fact in war with Greece which means that the coastal state was not in time of peace. UK had not an innocent passage due to the way it was carried out. The court assessed the manner of UK warships after they had been shot at May 15th. Having thus examined the various contentions of the Albanian Government in so far as they appear to be relevant, the Court has arrived at the conclusion that the United Kingdom did not violate the sovereignty of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946. The United Kingdom Government does not dispute that ‘Operation Retail’ was carried out against the clearly expressed wish of the Albanian Government. It recognizes that the operation had not the consent of the international mine clearance organizations, that it could not be justified as the exercise of a right of innocent passage, and lastly that, in principle, international law does not allow a State to assemble a large number of warships in the territorial waters of another State and to carry out minesweeping in those waters. The United Kingdom Government states that the operation was one of extreme urgency, and that it considered itself entitled to carry it out without anybody’s consent. The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, The United Kingdom Agent, in his speech in reply, has further classified ‘Operation Retail’ among methods of self-protection or self-help. The Court cannot accept this defense either find a place in international law. Final conclusion of the court: On the first question put by the Special Agreement of March 25th, 1948, The court gives judgment that the People’s Republic of Albania is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life that resulted there from; and Reserves for further consideration the assessment of the amount of compensation and regulates the procedure on this subject. 2) On the second question put by the Special Agreement on the violation of state sovereignty, The court gives judgment that the United Kingdom did not violate the sovereignty of the People’s Republic of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946; and unanimously, gave judgment that by reason of the acts of the British Navy in Albanian waters in the course of the Operation of November 12th and 13th, 1946, the United Kingdom violated the sovereignty of the People’s Republic of Albania, and that this declaration by the Court constitutes in itself appropriate satisfaction.

OBSERVATION OF GENERAL PRINCIPLES IN CASE

between the parties. The objection to the jurisdiction in the case of compensation was therefore not accepted by the court as it applied the principle of res judicata. CIRCUMSTANTIAL EVIDENCE:

THE THEORY OF RESPONSIBILITY: ILC DRAFT ARTICLES ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS (Report of the 53rd Sess., ILC (2001), G.A.O.R. 56th Sess., Supp.10) Part One: The Internationally Wrongful Act of a State General Principles Article 1: Every Internationally wrongful act of a State entails the International responsibility of that State. It states the basic principle underlying the articles as a whole, which is that a breach of international law by a State entails its international responsibility…

In cases where direct evidence of a fact is not available, it is a general principle of law that proof may be administered by means of circumstantial evidence. In the Corfu Channel Case (Merits) (1949), before the International Court of Justice, Judge Azevedo said in his dissenting opinion: “A condemnation, even to the death penalty, may be well-founded on indirect evidence and may nevertheless have the same value as a judgment by a court which has founded its conviction on the evidence of witnesses. “It would be going too far for an international court to insist on direct and visual evidence and to refuse to admit, after reflection, a reasonable amount of human presumptions with a view to reaching that state of moral, human certainty with which, despite the risks of occasional errors, a court of justice must be content.” This part of his opinion is in agreement with the majority decision, which, in admitting proof by inferences of fact (presomptions de fait) or circumstantial evidence, held that: “This “indirect evidence is admitted in all systems of law, and its use is recognised by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion . . . The proof may be drawn from inferences of fact (presomptions de fait), provided that they leave no room for reasonable doubt.[xii] ELEMENTARY CONSIDERATIONS OF HUMANITY

The international Court of Justice has applied the principle in the Corfu Channel case… (7) The articles deal only with the responsibility of States. Of course, as the international Court of Justice affirmed in the Reparation for Injuries case, the United Nations “is a subject of international law and capable of possessing international rights and duties…. It has the capacity to maintain its rights by bringing international claims” The Court has also drawn attention to the responsibility of the United Nations for the conduct of its organs or agents. It may be that the notion of responsibility for wrongful conduct is a basis element in the possession of international legal personality. Nonetheless special considerations apply to the responsibility of other international legal persons, and these are not covered in the articles ……[viii] Facts: On 22nd October 1946, a squadron of British warships, the cruisers Mauritius and Leander and destroyers Saumarez and Volage, left the port of Corfu and proceeded northwards through a channel previously swept for mines in the North Corfu Strait. Outside the Bay of Saranda, Saumarez struck a mine and was heavily damaged. [ix]Whilst towing the damaged ship, Volage struck a mine and was much damaged. Following the incident, the United Kingdom carried out minesweeping operations on 12 and 13 November 1946 in the North Corfu Channel. Twenty–two more mines were found. By the first part of the Special Agreement, the following question was submitted to the Court: ‘1) Is Albania responsible under International law for explosions which occurred on 22nd October,1946 in Albanian waters and for the damage and loss of human life which resulted from then and is there any duty to pay compensation’ Held: In its Judgment the Court declared on the first question, by 11 votes against 5, that Albania was responsible under international law for the explosions, which occurred in Albanian waters. PRINCIPLE OF RES JUDICATA:

The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VIII, which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. [xiii]

Summary of the Summary of the Judgment of 24 May 1980 CASE CONCERNING UNITED STATES DIPLOMATIC AND CONSULAR STAFF IN TEHRAN US VS IRAN 1980 ICJ REP Judgment of 24 May 1980 In its Judgment in the case concerning United States Diplomatic and Consular Staff in Tehran, the Court decided (1) that Iran has violated and is skill violating obligations owed by it to the United States; (2) that these violations engage Iran's responsibility; (3) that the Government of Iran must immediately release the United States nationals held as hostages and place the premises of the Embassy in the hands of the protecting power; (4) that no member of the United States diplomatic or consular staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate in them as a witness; (5) that Iran is under an obligation to make reparation for the injury caused to the United States, and (6) that the form and amount of such reparation, failing agreement between the parties, shall be settled by the Court. (The full text of the operative paragraph is reproduced below.) These decisions were adopted by large majorities: (1) and (2) - 13 votes to 2; (3) and (4) unanimously; (5) - 12 votes to 3; (6) - 14 votes to 1 (the votes are recorded by name below). * **

The term Res Judicata means a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties. Black’s Law Dictionary defines Res Judicata as an issue that has been definitively settled by judicial decision.[x] The judgment dated December 15, 1949, in the Corfu Channel Case; the Court accepted the plea of Res Judicata in emphatic terms. It observed:‘The Albanian government disputed the jurisdiction if the court with regard to the assessment of damages. The court may confine itself to stating that this jurisdiction was established by its judgment of April 9, 1949 that in accordance with the statute (Article 60), which, for the settlement of the present dispute, is binding upon the Albanian government that judgment is final and without appeal, and that therefore, the matter is res judicata.”[xi] The matter regarding the jurisdiction was already decided by the Court in its judgement dated April 9, 1949. Therefore, the matter between the parties had already been settled

A separate opinion was appended to the Judgment by Judge Lachs, who voted against operative paragraph 5. Dissenting opinions were appended by Judge Morozov, who voted against paragraphs 1, 2, 5 and 6, and by Judge Tarazi, who voted against paragraphs 1, 2 and 5. Procedure before the Court (paras. 1-10) In its Judgment, the Court recalls that on 29 November 1979 the United States of America had instituted proceedings against Iran in a case arising out of the situation at its Embassy in Tehran and Consulates at Tabriz and Shiraz, and the seizure and detention as hostages of its diplomatic and consular staff in Tehran and two more citizens of the United States. The United States having at the same time requested the indication of provisional measures, the Court, by a unanimous Order of 15 December 1979, indicated, pending final judgment, that the Embassy should immediately be given back and the hostages released (see Press Communiqu� No. 80/1). The procedure then continued in accordance with the Statute and Rules of Court. The United States filed a Memorial, and on 18, 19 and 20 March 1980 the Court held a public

hearing at the close of which the United States, in its final submissions, requested it to adjudge and declare, inter alia, that the Iranian Government had violated its international legal obligations to the United States and must: ensure the immediate release of the hostages; afford the United States diplomatic and consular personnel the protection and immunities to which they were entitled (including immunity from criminal jurisdiction) and provide them with facilities to leave Iran; submit the persons responsible for the crimes committed to the competent Iranian authorities for prosecution, or extradite them to the United States; and pay the United States reparation, in a sum to be subsequently determined by the Court.

nothing to prevent the attack, stop it before it reached its completion or oblige the militants to withdraw from the premises and release the hostages. This inaction was in contrast with the conduct of the Iranian authorities on several similar occasions at the same period, when they had taken appropriate steps. It constituted, the Court finds, a clear and serious violation of Iran's obligations to the United States under Articles 22 (2), 24, 25, 26, 27 and 29 of the 1961 Vienna Convention on Diplomatic Relations, of Articles 5 and 36 of the 1963 Vienna Convention on Consular Relations, and of Article 11 (4) of the 1955 Treaty. Further breaches of the 1963 Convention had been involved in failure to protect the Consulates at Tabriz and Shiraz.

Iran took no part in the proceedings. It neither filed pleadings nor was represented at the hearing, and no submissions were therefore presented on its behalf. Its position was however defined in two letters addressed to the Court by its Minister for Foreign Affairs on 9 December 1979 and16 March 1980 respectively. In these the Minister maintained inter alia that the Court could not and should not take cognizance of the case.

The Court is therefore led to conclude that on 4 November 1979 the Iranian authorities were fully aware of their obligations under the conventions in force, and also of the urgent need for action on their part, that they had the means at their disposal to perform their obligations, but that they completely failed to do so.

The Facts (paras. 11-32) The Court expresses regret that Iran did not appear before it to put forward its arguments. The absence of Iran from the proceedings brought into operation Article 53 of the Statute, under which the Court is required, before finding in the Applicant's favour, to satisfy itself that the allegations of fact on which the claim is based are well founded. In that respect the Court observes that it has had available to it, in the documents presented by the United States, a massive body of information from various sources, including numerous official statements of both Iranian and United States authorities. This information, the Court notes, is wholly concordant as to the main facts and has all been communicated to Iran without evoking any denial. The Court is accordingly satisfied that the allegations of fact on which the United States based its claim were well founded. Admissibility (paras. 33-44) Under the settled jurisprudence of the Court, it is bound, in applying Article 53 of its Statute, to investigate, on its own initiative, any preliminary question of admissibility or jurisdiction that may arise. On the subject of admissibility, the Court, after examining the considerations put forward in the two letters from Iran, finds that they do not disclose any ground for concluding that it could not or should not deal with the case. Neither does it find any incompatibility with the continuance of judicial proceedings before the Court in the establishment by the SecretaryGeneral of the United Nations, with the agreement of both States, of a Commission given a mandate to undertake a fact-finding mission to Iran, hear Iran's grievances and facilitate the solution of the crisis between the two countries. Jurisdiction (paras. 45-55) Four instruments having been cited by the United States as bases for the Court's jurisdiction to deal with its claims, the Court finds that three, namely the Optional Protocols to the two Vienna Conventions of 1961 and 1963 on, respectively, Diplomatic and Consular Relations, and the 1955 Treaty of Amity, Economic Relations, and Consular Rights between the United States and Iran, do in fact provide such foundations. The Court, however, does not find it necessary in the present Judgment to enter into the question whether Article 13 of the fourth instrument so cited, namely the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents, provides a basis for the exercise of its jurisdiction with respect to the United States' claims thereunder. MERITS: Attributability to the Iranian State of the acts complained of, and violation by Iran of certain obligations (paras. 56-94) The Court has also, under Article 53 of its Statute, to satisfy itself that the claims of the Applicant are well founded in law. To this end, it considers the acts complained of in order to determine how far, legally, they may be attributed to the Iranian State (as distinct from the occupiers of the Embassy) and whether they are compatible or incompatible with Iran's obligations under treaties in force or other applicable rules of international law. (a) The events of 4 November 1979 (paras. 56-68) The first phase of the events underlying the Applicant's claims covers the armed attack on the United States Embassy carried out on 4 November 1979 by Muslim Student Followers of the Imam's Policy (further referred to as "the militants" in the Judgment), the overrunning of its premises, the seizure of its inmates as hostages, the appropriation of its property and archives, and the conduct of the Iranian authorities in the face of these occurrences. The Court points out that the conduct of the militants on that occasion could be directly attributed to the Iranian State only if it were established that they were in fact acting on its behalf. The information before the Court did not suffice to establish this with due certainty. However, the Iranian State - which, as the State to which the mission was accredited, was under obligation to take appropriate steps to protect the United States Embassy - did

(b) Events since 4 November 1979 (paras. 69-79) The second phase of the events underlying the United States' claims comprises the whole series of facts which occurred following the occupation of the Embassy by the militants. Though it was the duty of the Iranian Government to take every appropriate step to end the infringement of the inviolability of the Embassy premises and staff, and to offer reparation for the damage, it did nothing of the kind. Instead, expressions of approval were immediately heard from numerous Iranian authorities. Ayatollah Khomeini himself proclaimed the Iranian State's endorsement of both the seizure of the premises and the detention of the hostages. He described the Embassy as a "centre of espionage", declared that the hostages would (with some exceptions) remain "under arrest" until the United States had returned the former Shah and his property to Iran, and forbade all negotiation with the United States on the subject. Once organs of the Iranian State had thus given approval to the acts complained of and decided to perpetuate them as a means of pressure on the United States, those acts were transformed into acts of the Iranian State: the militants became agents of that State, which itself became internationally responsible for their acts. During the six months which ensued, the situation underwent no material change: the Court's Order of 15 December 1979 was publicly rejected by Iran, while the Ayatollah declared that the detention of the hostages would continue until the new Iranian parliament had taken a decision as to their fate. The Iranian authorities' decision to continue the subjection of the Embassy to occupation, and of its staff to detention as hostages, gave rise to repeated and multiple breaches of Iran's treaty obligations, additional to those already committed at the time of the seizure of the Embassy (1961 Convention: Arts. 22, 24, 25, 26, 27 and 29 1963 Convention: inter alia, Art. 33; 1955 Treaty, Art. II (4)). With regard to the Charg� d'affaires and the two other members of the United States mission who have been in the Iranian Ministry of Foreign Affairs since 4 November 1979 the Court finds that the Iranian authorities have withheld from them the protection and facilities necessary to allow them to leave the Ministry in safety. Accordingly, it appears to the Court that in their respect there have been breaches of Articles 26 and 29 of the 1961 Vienna Convention. Taking note, furthermore, that various Iranian authorities have threatened to have some of the hostages submitted to trial before a court, or to compel them to bear witness, the Court considers that, if put into effect, that intention would constitute a breach of Article 31 of the same Convention. (c) Possible existence of special circumstances (paras. 80-89) The Court considers that it should examine the question whether the conduct of the Iranian Government might be justified by the existence of special circumstances, for the Iranian Minister for Foreign Affairs had alleged in his two letters to the Court that the United States had carried out criminal activities in Iran. The Court considers that, even if these alleged activities could be considered as proven, they would not constitute a defence to the United States' claims, since diplomatic law provides the possibility of breaking off diplomatic relations, or of declaring persona non "rata members of diplomatic or consular missions who may be carrying on illicit activities. The Court concludes that the Government of Iran had recourse to coercion against the United States Embassy and its staff instead of making use of the normal means at its disposal. (d) International responsibility (paras. 90-92) The Court finds that Iran, by committing successive and continuing breaches of the obligations laid upon it by the Vienna Conventions of 1961 and 1963, the 1955 Treaty, and the applicable rules of general international law, has incurred responsibility towards the United States. As a consequence, there is an obligation on the part of the Iranian State to make reparation for the injury caused to the United States. Since, however, the breaches are still continuing, the form and amount of such reparation cannot yet be determined. At the same time the Court considers it essential to reiterate the observations it made in its Order of 15 December 1979 on the importance of the principles of international law governing diplomatic and consular relations. After stressing the particular gravity of the

case, arising out of the fact that it is not any private individuals or groups that have set at naught the inviolability of an embassy, but the very government of the State to which the mission is accredited, the Court draws the attention of the entire international community to the irreparable harm that may be caused by events of the kind before the Court. Such events cannot fail to undermine a carefully constructed edifice of law the maintenance of which is vital for the security and well-being of the international community. (e) United States operation in Iran on 24-25 April 1980 (paras. 93 and 94) With regard to the operation undertaken in Iran by United States military units on 24-25 April 1980, the Court says that it cannot fail to express its concern. It feels bound to observe that an operation undertaken in those circumstances, from whatever motive, is of a kind calculated to undermine respect for the judicial process in international relations. Nevertheless, the question of the legality of that operation can have no bearing on the evaluation of Iran's conduct on 4 November 1979. The findings reached by the Court are therefore not affected by that operation. * ** For these reasons, the Court gives the decision reproduced in full below. OPERATIVE PART OF JUDGMENT THE COURT,* [Composed as follows: President Sir Humphrey Waldock; Vice-President Elias; Judges Forster, Gros, Lachs, Morozov, Nagendra Singh, Ruda, Mosler, Tarazi, Oda, Ago, El-Erian, Sette-Camara and Baxter.] 1. By thirteen votes [President Sir Humphrey Waldock; Vice-President Elias; Judges Forster, Gros, Lachs, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Erian, Sette-Camara and Baxter.] to two [Judges Morozov and Tarazi.], Decides that the Islamic Republic of Iran, by the conduct which the Court has set out in this Judgment, has violated in several respects, and is skill violating, obligations owed by it to the United States of America under international conventions in force between the two countries, as well as under long-established rules of general international law; 2. By thirteen votes [President Sir Humphrey Waldock; Vice-President Elias; Judges Forster, Gros, Lachs, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Erian, Sette-Camara and Baxter.] to two [Judges Morozov and Tarazi.], Decides that the violations of these obligations engage the responsibility of the Islamic Republic of Iran towards the United States of America under international law; 3. Unanimously, Decides that the Government of the Islamic Republic of Iran must immediately take all steps to redress the situation resulting from the events of 4 November 1979 and what followed from these events, and to that end: (a) must immediately terminate the unlawful detention of the United States Charg� d'affaires and other diplomatic and consular staff and other United States nationals now held hostage in Iran, and must immediately release each and every one and entrust them to the protecting Power (Article 45 of the 1961 Vienna Convention on Diplomatic Relations); (b) must ensure that all the said persons have the necessary means of leaving Iranian territory, including means of transport; (c) must immediately place in the hands of the protecting Power the premises, property, archives and documents of the United States Embassy in Tehran and of its Consulates in Iran; 4. Unanimously, Decides that no member of the United States diplomatic or consular staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate in them as a witness; 5. By twelve votes [President Sir Humphrey Waldock; Vice-President Elias; Judges Forster, Gros, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Erian, Sette-Camara and Baxter.] to three [JudgesLachs, Morozov and Tarazi.], Decides that the Government of the Islamic Republic of ban is under an obligation to make reparation to the Government of the United States of America for the injury caused to the latter by the events of 4 November 1979 and what followed from these events; 6. By fourteen votes [President Sir Humphrey Waldock; Vice-President Elias; Judges Forster, Gros, Lachs, Nagendra Singh, Ruda, Mosler, Tarazi, Oda, Ago, El-Erian, SetteCamara and Baxter.] to one [Judge Morozov.],

Decides that the form and amount of such reparation, failing agreement between the Parties, shall be settled by the Court, and reserves for this purpose the subsequent procedure in the case. __________ SUMMARY OF OPINIONS APPENDED TO THE JUDGMENT Judge Lachs indicated that he voted against the first part of operative paragraph 5, as he found it redundant. The responsibility having been established, the whole question of reparations should have been left to the subsequent procedure, including the question of form and amount as provided by the Judgment. The opinion stresses the importance of the Judgment for diplomatic law, and the major part of it is devoted to the question of the practical solution by diplomatic means of the dispute between the Parties. Once the legal issues have been clarified by the Judgment, the parties should take speedy action and make maximum efforts to dispel tension and mistrust, and in this a third-party initiative may be important. Judge Lachs visualizes a particular role for the Secretary-General of the United Nations in this respect and the work of a special commission or mediating body. In view of the gravity of the situation, the need for a resolution is urgent. * ** In his dissenting opinion, Judge Morozov indicates that operative paragraph 1 of the Judgment is drafted in such a way that it is not limited to the question of the violation of the Vienna Conventions of 1961 and 1963, but also covers, if read with some paragraphs of the reasoning, the question of alleged violations of the 1955 Treaty of Amity, Economic Relations and Consular Rights between Iran and the United States; this treaty, he believes, does not provide the parties with an unconditional right to invoke the compulsory jurisdiction of the Court, and in the circumstances the Court has in fact no competence to consider the alleged violations. Furthermore, Judge Morozov observes, the United States committed during the period of the judicial deliberations many unlawful actions, culminating in the military invasion of the territory of the Islamic Republic of Iran, and has therefore lost the legal right to refer to the Treaty in its relations with Iran. Judge Morozov voted against operative paragraphs 2, 5 and 6 because he had noted that a series of actions was undertaken by the United States of America against Iran in the course of the judicial deliberations, in particular the freezing by the United States of very considerable Iranian assets, combined with the intention, clearly expressed in a statement made by the President of the United States on 7 April 1980 to make use of these assets, if need be, in accordance with decisions that would betaken in the domestic framework of the United States; that meant that the United States was acting as a "judge" in its own cause. In Judge Morozov's view, the situation, created by actions of the United States, in which the Court carried on its judicial deliberations in the case had no precedent in the whole history of the administration of international justice either before the Court or before any other international judicial institution. The United States, having caused severe damage to Iran, had lost the legal as well as the moral right to reparations from Iran, as mentioned in operative paragraphs 2, 5 and 6. Judge Morozov also finds that some paragraphs of the reasoning part of the Judgment describe the circumstances of the case in an incorrect or one-sided way. He considers that, without any prejudice to the exclusive competence of the Security Council, the Court, from a purely legal point of view, could have drawn attention to the undeniable fact that Article 51 of the United Nations Charter, establishing the right of selfdefence to which the United States of America referred in connection with the events of 2425 April, may be invoked only "if an armed attack occurs against a member of the United Nations", and that there is no evidence of any armed attack having occurred against the United States. Judge Morozov also stresses that some indication should have been included in the Judgment to the effect that the Court considered that settlement of the dispute between the United States and the Islamic Republic of Iran should be reached exclusively by peaceful means. * ** Judge Tarazi voted in favour of operative paragraphs 3 and 4 of the Judgment, because he considered that the seizure of the embassy, and the detention as hostages of those present in it, constituted an act in breach of the provisions of the 1961 and 1963 Vienna Conventions on Diplomatic and Consular Relations.

On the other hand, Judge Tarazi felt impelled to vote against operative paragraph 1, because he considered that only the 1961 and 1963 Vienna Conventions conferred jurisdiction on the Court in the present case. He also voted against paragraphs 2 and 5, because, in his view, the Court, at the present stage of the proceedings and considering the concomitant circumstances, could not make any ruling as to the responsibility of the Government of the Islamic Republic of Iran. On the other hand, Judge Tarazi voted in favour of paragraph 6, because he considered that, in the event of any reparations being owed, they should be determined and assessed by the International Court of Justice; it was not admissible for them to be the subject of proceedings in courts of domestic jurisdiction.

Chinese Flour Importer Assn. v. Price Stabilization Board 89 Phil 439 G.R. No. L-4465

July 12, 1951

CHINESE FLOUR IMPORTERS ASSOCIATION, MANILA, PHILIPPINES, petitionerappellee, vs. PRICE STABILIZATION BOARD (PRISCO), respondent-appellants. This is an appeal interposed by respondents as well as intervenors from a decision of the Court of First Instance of Manila ordering the Price Stabilization Corporation (PRISCO) to grant flour quota allocations to the members of the petitioner association and other qualified importers pursuant to the provision of sections 12 and 14 of Republic Act No. 426 on the basis of their quota allocations for the years 1948 and 1949, and dismissing the complaint of the intervenors. On September 5, 1950, the Chinese Flour Importers Association, Manila Philippines, filed in the Court of First Instance of Manila a petition for mandamus to compel the Philippine Relief and Trade Rehabilitation Administration (PRATRA) and the Philippine Wheat Flour Board to issue in favor of petitioner's members the import quota allocations of wheat flour to which they claim to be entitled under sections 12 and 14 of Republic Act No. 426, known as Import Control Law, with a prayer that a writ of preliminary injunction be issued to restrain that a writ of preliminary injunction be issued to restrain the PRATRA and the Wheat Flour Board from granting flour allocations and imports licenses therefor to new importers in excess of the latter's shares in the portion reserved for new importers by the provision of Republic Act No. 246. After hearing, the writ was granted. In the meantime, Manuel S. Rustia, Ernesto Y. Sibal, and other allowed to intervene. The parties having agreed to submit the case on the pleadings and on their respective memoranda, because it involves only a question of law, the trial court rendered judgment as stated in the early part of this decision. From this judgment respondent and intervenors appealed. On November 16, 1950, petitioner filed motion for a writ of execution pending appeal from the judgment of the trial court. The motion was granted over the objection of the respondent were allowed to file a superseades bond. The case is now before us purely on question of law. The background of this case is as follows: On March 23, 1949, the Republic of the Philippines signed the International Wheat Agreement together with the governments of forty-one (41) other countries, which was entered into for the purpose of assuring supplies of wheat to importing countries and markets of wheat to exporting countries at equitable and stable prices (Part 1, article 1). The agreement fixes the quantities of wheat representing the guaranteed sales of an exporting country to the importing countries and the guaranteed purchases of an importing country from the exporting countries, and specifies the prices for such sales and purchases (arts. III and VI). The guaranteed purchases of the Philippines as an importing country, is 196,000 metric tons, of wheat every crop year during the period of the agreement which expires on July 31, 1953, (Annex A to

art. III). The Agreement also provides that the exporting and importing countries shall be free to fulfill their guaranteed quantities through private channels or otherwise (art. III). By a resolution approved on February 17, 1950, the Senate of the Philippines concurred in the Agreement by the President "with the understanding that nothing contained in this Agreement shall be construed as in any way curtailing or abridging the right, authority and discretion of the Philippine Government to distribute and allocate among the private importers the Philippines the guaranteed purchases of the Philippine Government." This Agreement respect to the Philippines on February 27, 1950. On March 17, 1950, the President issued Executive Order No. 305 regulating the importation of wheat flour into the Philippines by way of implementation of the International Wheat Agreement and authorizing the PRATRA to control its importation and distribution. The Order provides that from March 17, 1950, no flour should be imported into the Philippines without any import license duly issued by the PRATRA which shall be signed by its General Manager by authority of the President . It also provides that the 196,000 metric tons, of wheat which the Philippine Government has guaranteed to purchase yearly under the International Wheat Agreement, shall be imported in the name of the Republic of the Philippines and that the said quantity of wheat shall in turn be allocated to local consumers, dealers and/or importers of flour who may be authorized by the General Manager of the PRATRA pursuant to the rules and regulations to be promulgated by the Philippine Wheat Flour Board created in said order. On the same date, the Philippine Flour Board issued circular No. 1, containing the required rules and regulations, and since said date, the PRATRA began allocating the importation of wheat flour into the Philippines under the Agreement of Executive Order No. 305. On May 19, 1950, Republic Act No. 426 was approved. This Act provides for the allocation of import commodities to old and new importers, and lays down the pattern to be followed with respect to the amount of quota allocations. It provides that 70 per cent, 60 percent and 50 per cent of the total import quota for the fiscal years 1950-51, 1951-52, and 1952-53 respectively shall be allocated to old importers (section 14). It designates the Import Control Commissioner as the various importers, with the exception of wheat flour for the allocation of which the PRATRA was given exclusive power and authority. On October 3. 1950, Executive Order No. 35O was issued by the President creating the Price Stabilization Corporation, known as PRISCO, and dissolving the PRATRA effective as of that date. In view thereof, the PRISCO was substituted for PRATRA as party in this case. Appellee is an association of fifty-nine (59) licensed Chinese importers of flour which was organized under the laws of the Philippines and was registered in the Securities and Exchange Commission. Its members individually imported wheat flour in 1946, 1947 and 1948, and as such are old importers within the meaning of section I of Republic Act-No. 426, They are duly licensed to do business in the Philippines and have individually filed with the PRATRA the prescribed applications for wheat flour import quota allocations and for licenses to import their quota into the Philippines. They made representations and demands upon the PRATRA and the Philippine Wheat Flour Board in order that they may be given import quota allocations of wheat flour in the amount which should correspond to them in accordance with section 14 of Republic Act No. 426, but their demands were disregarded and their representation ignored. They made the same representations and demand upon the Prisco, but with the same result. Considering this attitude of the PRATRA to be discriminatory, unfair and oppressive, appellee filed the present action. Stripped of unnecessary verbiage, the basic issue involved in this case may be boiled down as follows: Shall the PRATRA, now PRISCO, make the allocation of import quota on wheat flour in accordance with the provisions of Republic Act No. 426, as claimed by the appellee, or shall it make such allocation in accordance with sections 1 and 2 of Executive Order No. 305 in conjunction with section 15 of Republic Act No. 426, as claimed by the appellants? Let us discuss both theories. Appellant's theory is "that the importation and allocation of wheat flour must be governed by sections 1 and 2 of Executive Order No. 305, in conjunction with the section 15 of Republic Act No. 426." They allege that the allocation of wheat flour is not subject to the provisions of Republic Act No. 426; that wheat flour being considered as class by itself, Republic Act No. 426 does not apply to this particular commodity; and that in so far as wheat flour is concerned, the PRATRA, now PRISCO, has the exclusive power to use its discretion in the allocation of wheat flour, which discretion is not subject to judicial control. On the other hand, it is appellee's theory (1) that being old importers of wheat flour, appellee's members are entitled as matter of right to quota allocations in the amount which should be determined in accordance with section 14 of Republic Act No. 426; (2) that as the agency designated by section 15 of said Act and charged with the function of determining and regulating the allocation of wheat flour among importers, it is the duty of the of the PRATRA, now PRISCO, to allocate this commodity in accordance with section 14; (3)that in denying neglecting, and refusing to give import quota allocations to appellee's members in the amount indicated in section 14, the PRATRA, now PRISCO, has unlawfully neglected the performance of an act which is especially enjoined upon it by section 14, and as thereby excluded appellee's members from the use and enjoyment of their rightful shares in the wheat flour quota under section 14; and (4) that appellee's remedy is mandamus.

The theory of appellants "that the importation and allocation of wheat flour must be governed by sections 1 and 2 of executive Order No. 305, in conjunction with section 15 of Republic Act No. 426", is mainly based upon the provisions of section 15 and appendix "C" of Republic Act No. 426. It is therefore important to examine and analyze these provisions.

Quota allocations of any importer for any particular article including wheat flour, shall not be transferable.

the Act, we likewise find more tenable the line of reasoning of the appellee on the matter. Said proviso, in our opinion, can only refer to the clause immediately preceding it in section 15 and can have no other meaning than that the function of allocating the wheat flour instead of being assigned to the Import Control Commissioner was assigned to the PRATRA which heretofore has been charged with said duty by Executive Order No. 305. It simply means that the authority to determine and grant flour quota allocations was taken from the Import Control Commissioner and given to the PRATRA, now PRISCO, which must have been done presumably because of the practice and experience heretofore enjoyed by said office in so far as the allocation of wheat flour import quota is concerned under the provisions of Executive Order No. 305, which was issued to implement and carry out the objective of the International Wheat Flour Agreement. If the intention of the law is to exempt said wheat flour from the provisions of Republic Act No. 426, the proper place of said proviso would be in section 22, which contains the repealing clause, and not in section 15. Indeed, if the intention of the law is to except Executive Order No. 305 from the operation of Act No. 426, that exception would have been clearly stated in said section 22.

It shall be illegal to cede, transfer, sell, rent lease, or donate, his or its import quota allocation or license either directly or indirectly by the use of any simulation, strategy or scheme under the provision of this Act, and any violation thereof shall be punishable with the forfeiture by the Commissioner of the import quota or license of the erring party without prejudice to his subjection to the penal provision of this Act.

The proviso is to be construed with reference to the immediately preceding parts of the clause, to which it is attached. Lewis' Sutherland, Statutory Construction, sections 352, 420; Friedlman vs. Sullivan, 48 Ark. 213, 2 S. W. 785; United States vs. Babbit, 1 Black 55, 17 L. Ed. 94; McRae vs. Holcomb, 46 Ark. (306), 310; Towson vs. Denson, 74 Ark. 302, 306, 86 S. W. 661. (Hackney vs. Southwest Hotels, 195 S. W. 2d. 55, 58.)

Appendix "C" likewise provides in part:

The term "provided", is frequently regarded as used, not as qualifying the operation of the statue, but as conjunctive to an independent paragraph. Provisos have therefore frequently been held to bring in new matter rather than to limit or explain that which has gone before. (50 Am. Jur., sec. 436.)

Section 15 of said Act provides: Any existing law, executive or regulation to the contrary notwithstanding, no Government, office, agency, or instrumentality, except the Import Control Commissioner, shall allocate the import quota among the various importers: Provided, That the Philippine Rehabilitation and Trade Rehabilitation Administration shall have exclusive power and authority to determine and regulate the allocation of wheat flour, among importers.

(Controlled Non-essential Imports) Flour, all kinds, except wheat flour. It is contended that, under the above quoted provisions, wheat flour has been removed from the scope and operation of Republic Act No. 426 and placed under Executive Order No. 305 and the rules and regulations promulgated thereunder by the Wheat Flour Board because, while on one hand, section 15 of said Act declares that no government office, agency or instrumentality, except the Import Control Commissioner, shall allocate the import quota among the various imports, on the other hand, the same section declares in its proviso that PRATRA shall have exclusive power and authority to determine and regulate the allocation of wheat flour among importers, and while Appendix "C' of Republic Act No. 426 contains a list of all controlled non essential imports, however in the group of flour of all kinds listed therein wheat flour is excepted or excluded therefrom. The said proviso and exclusion, appellant claim, confirm their view that wheat flour has been excluded from the operation of Republic Act No. 426. This argument is met by appellee in this wise: In arguing that because wheat flour is excluded in Appendix "C" this commodity is deemed removed from the scope and operation of Republic Act No. 426, appellants have completely misunderstood the purpose of the appendices. These appendices were made part of the Act merely to establish a range of percentage reductions on items listed therein which shall guide the Import Control Board in fixing the import route of said items in accordance with section 7 where express reference is made to the appendices. If wheat flour was expected from Appendix "C", it is because the amount of wheat flour which may be imported into the Philippine and its price are already fixed and determined in the International Wheat Agreement. There is, therefore, no need for fixing the import quota of wheat flour. We agree with this line of reasoning of counsel for the appellee. The only purpose of the appendices is to itemize the commodities which are deemed controlled, the import quota of which need to be fixed by the Import Control Board in accordance with section 7 of the law for the purpose of allocating them to the importers. They do not necessarily indicate that those excluded therefrom are not subject to the operation of said Act, because they also come under the provisions of section 9 which have reference to the items of import not enumerated in the appendices. In this connection, we also notice, as pointed out by counsel for the appellee, that, aside from wheat flour, there are other commodities that are excepted from Appendix "C", among which may be mentioned: Oats and infant foods, umbrella fabrics, salmon and sardines, corned beef, hams and shoulders, master records, yarn and threads, industrial starch and table cutlery. Other articles are similarly excepted in appendix "D". Certainly, appellants can not seriously contend that these articles are not within the purview of Republic Act No. 426 by the mere fact that, like wheat flour, they are excepted in appendices "C" and "D". To our mind, their importation is governed by section 9 we have already adverted to, which has reference to items of import not enumerated in the appendices. This section provides that no such items of import shall be allowed an import license and exchange cover in excess of its excess of its import value (C.I.F.) for the year 1948, except agricultural machineries, equipment and other machinery, and materials and equipment for dollar-producing and dollar-saving industries, which means that as regards those articles not mentioned in the appendices they can also be imported by those who had imported them in 1948, subject only to the limitation that the import quota shall not exceed their import value in 1948, and to the reservation in favor of new importers provided for in section 14 of Republic Act No. 426. As regards appellants' contention that the second part of section 15, which is preceded by the word "provided" operates as an exception to exclude wheat flour from the provisions of

The natural and appropriate office of a proviso is to modify the operation of that part of the statue immediately preceding the proviso, or to restrain or qualify the generality of the language that it follows. Indeed, the presumption is that a proviso in a statue refers only to the provision to which it is attached, and, immediately preceding clause or provision. (50 Am. Jur., sec. 438.) The operation of a proviso is usually and properly confined to the clause or distinct portion of the enactment which immediately precedes it, and does not extend to or qualify other sections, unless the legislative intent that it shall so operate is clearly disclosed; and, a fortiori, a proviso contained in an amendatory statue will not be extended to the original act. (50 Am. Jur., sec. 640.) Since the proviso in sec. 7205 applies only to that section, and not to sec. 7204, it follows that there is no limitation of liability as to the value of property entrusted by the guest to the hotel keeper under sec. 7204. (59 C. J. 1090). To bolster up the contention that the proviso of section 15 of Act No. 426 has the effect of excluding the importation of wheat flour from the operation of said Act, counsel for appellants lay stress in the phraseology used by the law in that, while the first part provides that the Import Control Commissioner shall allocate the import quota the proviso prescribes that the PRATRA shall have power and authority to determine and regulate the allocation. In other words, the first part uses the word "allocate" with respect to Import Control Commissioner, whereas the proviso employs the phrase "to determine and regulate the allocation" which, it is contended, is broader in scope and confers absolute discretion upon the PRATRA to make the allocation without following the pattern set in section 14 of the same Act. The claim is based upon a misconception of the true import of the terms used in the law. The reason why the first part of section 15 merely employs the word allocate when referring to Import Control Commissioner is because the fixing of quota is a function that the law gives to the Import Control Board (section 3) in accordance with the schedule and pattern set in section 7 and 14 of Republic Act No. 426, so that once the quotas are fixed, the allocation thereof becomes the concern of the Import Control Commissioner. The Import Control Board is the policy-determining body that fixes and allocates the import quota, whereas the Import Control Commissioner is the executive officer charged with the execution of the policy and directives of the Board. Upon the other hand, the proviso gives to the PRATRA exclusive power and authority to determine and regulate the allocation because the intention is to give to that office the power and authority not only to allocate the quota but also to pass on the financial capacity and other requisite qualifications of the importers to whom the quota should be allocated. This is a function which the PRATRA has been exercising before the approval of Republic Act No. 426 in the light of the rules and regulations adopted by the Import Flour Board under the provisions of Executive Order No. 305, and the PRATRA has the machinery for determining and passing upon the fitness and financial qualifications of the importers, and that machinery is the one contemplated in that proviso. But in allocating the import quota of the importers once they have been screened and determined, it is our opinion that the PRATRA should follow the pattern set in section 14 of Republic Act No. 426. We wish to take note of the inference drawn by appellants from the use of the phrase "including wheat flour" in the second paragraph of section 25 which prohibits the transfer of quota allocations of any importer for any particular article pointing out that by the use of that

phrase, the legislator meant to exclude wheat flour from the other provisions of the Act, specially the provisions of sections 12 and 14 relative to the quota allocations. The argument is specious, for it fails to recognize that the intention of Congress, in inserting said phrase is precisely to dispel the doubt that may be engendered by the proviso of the first paragraph of section 15. The preceding paragraph excluded wheat flour from among the imported commodities which the Import Control Commissioner is called upon to allocate, and the insertion becomes necessary to avoid any inference that wheat flour is also excepted from the second paragraph of the section. The insertion was made just to leave no doubt that wheat flour comes within the purview of Republic Act No. 426. Appellants may inquire, what are the provisions of Executive Order No. 305 which are the inconsistent with Republic Act No. 426? The answer is simple. There are several that may be mentioned, the most important of which are: on the matter of allocation, the Executive Order provides that wheat flour shall be allocated to local consumers, dealers and/or importers (sec. 2), whereas Act No. 426 provides that the wheat flour shall be allocated only among importers within the meaning of said Act (sec. 15). While the Executive Orders does not classify who are qualified importers, nor give any pattern for the allocation of quota, the Act divides the importers into old and new importers, prescribes their qualifications (sections 1 and 14), and establishes the basis to be followed in determining the amount of quota allocations which may be given to them (sections 9, 12, 13 and 14). The Executive Order creates a Board which is authorized to issue rules and regulations to be followed by the PRATRA in the allocation of wheat flour (section 3), whereas the Act provides that the determination and regulation of wheat flour among importers is a function that is exclusively given to the PRATRA, which as a consequence it may exercise without necessarily being bound by such rules and regulations (section 13). Needless to say that, as far as the issue involved in this case is concerned, where the provisions of Executive Order are inconsistent with or repugnant to the provisions of the Act, the mandate of the Act must prevail and must be followed. In this connection, we note that section 5 of the Rules and regulations adopted by the Wheat Flour Board to implement the provisions of Executive Order No. 305, provides that 20 percent of wheat flour to be imported may be reserved for direct importation by the PRATRA for stabilization purposes, and the 80 per cent shall be distributed first to direct consumers who are financially able and who by themselves have been regularly importing their flour requirements, then to qualified Filipino importers, and finally to other importers. Because these provisions are repugnant to the pattern set for the allocation of quota in section 14 of Republic Act No. 426, they must be deemed to have been impliedly repealed by section 22 of the same Act. It follows that PRATRA can only make the allocation of wheat flour now by observing the pattern set in said section 14. We are urged to interpret the provisions of Act No. 426 in a way that may exclude wheat flour from its operation in order to allow PRATRA to carry out its policy of placing the importation of wheat flour exclusively in the hands of Filipino importers in line with the policy of our Government to encourage and foster the spirit of nationalism among our people in business, commerce and industry in the Philippines. We have informed, and have taken notice of the claim, that the PRATRA recently in line with the above mentioned policy of nationalism has determined to allocate the import quota of wheat flour exclusively among the new importers, to the complete exclusion of the old importers, under the claim that it has absolute discretion to do so subject only to the restrictions that may be imposed by the Chief Executive. We are not obvious of this policy of our Government which is indeed very plausible and should be encouraged to give a break to our countrymen so that they may have greater share in our local trade, business and commerce in line with the spirit of nationalism underlying our Constitution, but plausible and patriotic though it may be, such policy should, however, be adopted gradually so as not to cause injustice and discrimination to alien firms or businessmen of long standing in the Philippines and who have been long engaged in the particular trade thereby contributing with their money and efforts to the economic development of our country. In fact, this is the policy that our Congress has set in an unmistakable manner in Republic Act No. 426. This is also the policy that our President has expressed in the letter he sent to the PRATRA relative to determination of the import quota allocations of wheat flour.1 When the PRATRA decided to ignore entirely the rights of the old importers, simply because they are aliens, in complete disregard of this policy of our Government, these importers have the right to recur to the sanctuary of justice for redress, for they too are entitled to certain rights under our Constitution. Aliens within the state of their residence enjoy certain rights and privileges like those enjoyed by its citizens, such as free access to the courts and the equal protection of the laws. Nor may aliens be deprived of life, liberty, or property without due process of law. Citizens may, of course, be preferred to non-citizen without violating constitutional guaranties. They are excluded from the enjoyment of political rights, such as the right to vote and to hold public office. Other restrictions may be imposed for reasons of public policy and in the exercise of the police power. (Padilla's Civil Code, pp. 95-96). It is claimed that wheat flour as a commodity is a class by itself because it has been the subject of an International Wheat Agreement and as such should be excepted from the provisions of Republic Act No. 426. What is their special in wheat flour which should make it a class by itself? This commodity is an import, as are other import items, and the International Wheat Agreement is merely a trade agreement the objectives of which are to assure supplies of wheat to importing countries and markets for wheat to exporting

countries at equitable and stable prices. The Agreement merely regulates the outflow and inflow of flour between and among the countries signatories thereto. But the agreement does not interfere with the internal laws of the signatory countries regarding imports and exports, and as a matter of fact it provides in Article II that "Nothing in this Agreement shall be construed to exempt any private trader from any laws or regulations to which he is otherwise subject", and in the resolution approved by the Senate on February 17, 1950, the Senate concurred in its acceptance by the President "with the understanding that nothing contained in this Agreement shall be construed as in any way curtailing or abridging the right, authority and discretion of the Philippine Government to distribute and allocate among the private importers in the Philippines the guaranteed purchase of the Philippine Government." Wheat flour is, therefore, like any other commodity whose importation should be regulated, and as such should be included within the Purview of Act No. 426. A perusal of this act will show that it is all-comprehensive and covers the whole field of imports. It is the general and basic law on imports intended to replace and substitute all prior laws, executive orders, and rules and regulations on the same subject. Section 22 which provides that "Any Act or executive order, rules or regulations whose provisions are contrary to, or in contravention with any provision of this Act are hereby repealed", clearly reveals the intent of Congress to establish a uniform system of rules on imports and to nullify the heretofore existing laws, executive orders, and rules and regulations which may be inconsistent with the Act. No reason is perceived, therefore, why wheat flour shall be regarded as a class by itself and should be excluded from its operation simply because it has been the subject of an international agreement. To the foregoing consideration we may add that to interpret Republic Act No. 426 as excluding wheat flour from its operation, as contended by appellants, would be tantamount to an undue delegation of powers to the PRATRA and would render the Act unconstitutional and void. As a general rule, the functions of legislation may not be delegated by the legislative to the executive department or to any executive or administrative officer, board, or commission, except as such delegation may be expressly authorized by a constitutional provision. And a statute that vests an arbitrary discretion in administrative officers with respect to an ordinary lawful business, profession or appliance, or fails to prescribe a uniform rule of action or to lay down a guide or standard whereby the exercise of discretion may be measured, is void and unconstitutional. We are not prepared to adopt such interpretation. As the general rule is stated in Corpus Juris, which statement has been cited and quoted with the approval, the functions of legislation may not be delegated by the legislative to the executive department or to any executive or administrative officer, board, or commission except as such delegation may be expressly authorized by a constitutional provision, and the constitution affords the measure of the powers which may be granted to purely administrative boards or officers. Hence, where executive officers or bodies are charged with the administration of statutes, the legislature must ordinarily prescribe a policy, standard, or rule for their guidance and must not vest them with an arbitrary or uncontrolled discretion with regard thereof or as to the matters or persons to which the statutes shall be applied. So the legislature cannot vest in executive officers or bodies an uncontrolled power to vary, change or suspend a statute unless the constitution so provides. (16 C. J. S. pp. 348-349.) The practical question which arises in this problem is the determination of what is a proper and reasonable discretion and what is an invalid arbitrary discretion. The general accepted rule as to this question is to the effect that a statute or ordinance vests an arbitrary discretion in administrative officers with respect to an ordinarily lawful business, profession, or appliance, if it fails to prescribe a uniform rule of action or fails to lay down a guide or standard whereby the exercise of discretion may be measured. Any law which authorizes the issuing or withholding of licenses, permits or approvals or sanctions other administrative functions in such a manner as the designated officials arbitrarily choose, without reference to all the class to which the law under consideration was intended to apply and without being controlled or guided by any definite rule or specified conditions to which all similarly situated may conform, is unconstitutional and void. (11 Am. Jur., p. 947.) Our attention has been invited to resolution No. 43, approved by the Senate of the Philippines after this case has been decided by the lower court, in which it is reiterated that the intent and policy of the Senate in inserting in the law the proviso under consideration is to afford Filipino business enterprises more substantial participation in the vital wheat flour import trade. Indeed, in that resolution, it is intimated that the proviso of section 15 of Act No. 426 came into being as an amendment of the Senate with the considered object of utilizing the PRATRA as the sole arbiter in fixing wheat flour allocations in consonance with the national policy to advance the field of Filipino participation in the business enterprises in the Philippines. But it is to be written into the law, and the resolution has been concurred in by the House, and as such it does not have any binding effect in the determination of this case. The resolution does not have the effect of law. The same cannot serve this Court from its constitutional duty to interpret the law in accordance with well-known rules of statutory construction.

While a court may not inquire into the intent of a legislator, it is bound to ascertain the legislative intent from what was done by the legislature as an entity. (People vs. Marxhauson, 171 N. W. p. 537.) A legislative construction placed on a prior statute is without binding force in a judicial proceeding and court is free to place its own construction on the prior statute. In re Cauldwell's Estate, 36 N. Y. Swd 48, 178 Misc. 916. (4O Fifth Dec. Digest, p. 1527.) A legislative declaration of opinion as to meaning of earlier statute, without a positive legislative act, is not binding on the court in the construction of the earlier statute, since statutory construction is a "judicial" not a "legislative function". — State ex WashingtonOregon I vs. Co. Dobson, 130 P 2d 939, 169, Or. 546. (40 Fifth Dec. Digest, p. 1528.). . . . under the general rule that a legislative resolution does not have force or effect as a law, a legislative resolution as to the proper construction of a statute is not binding on the courts. Boyer-Campbell Co. vs. Fry, 271 Mich. 221, 260 N. W. 165, 98 ALR. 827 (50 Am. Jur. p. 331.) The other point stressed by the appellants is that mandamus does not lie in this case because the power vested in the PRISCO to determine and regulate the allocation of wheat flour among importers requires exercise of discretion. They claim that it is elementary that mandamus will not lie compel the performance of a discretionary duty, and in issuing the writ, the trial court in effect has ordered the PRISCO not merely to act, but to act in a particular manner, to wit: to give wheat flour allocations to Chinese importers. The contention presupposes that the power and authority vested in the PRISCO to determine and regulate the allocation of wheat flour among importers is to be governed exclusively by the provisions of Executive Order No. 305. Under this theory, the claim is indeed well taken, for there is no doubt that the aforesaid order gives to the PRISCO wide range of discretion to allocate the import quota of wheat flour to the importers. But the assumption runs counter to our theory that, while the PRISCO is given the power and authority to determine and regulate the allocation of wheat flour, the allocation shall be made in accordance with the pattern set in section 14 of Republic Act No. 426. Such being the case, the guaranteed purchases of wheat flour must be allocated among old and new importers in accordance with the mandatory provisions of section 14. And being old importers of wheat flour, the members of the appellee are entitled as a matter of rights to quota allocations of this commodity, hence their remedy is mandamus. The claim that appellee has a plain, speedy and adequate remedy in the ordinary course of law, other than the special civil action for mandamus, by a direct appeal to the President of the Philippines, would be tenable if Executive Order No. 90, creating the PRATRA, now PRISCO, contain a provision requiring such appeal before action could be taken in court against the PRATRA in connection with the performance of its functions. But no such appeal is therein provided, and the PRATRA, now PRISCO, being an agency created by the President, it is presumed that its actions bear his official approval. Such appeal, therefore, is deemed unnecessary. Neither can the acts of the PRATRA be considered as acts of the President even if the import licenses to be issued by the PRATRA are to be signed by authority of the President, because the PRATRA is a mere agency or instrumentality of the executive branch of the Government whose functions can be looked into by the Courts without infringing the principle of the separation of powers. . In addition to the various federal boards and officers considered supra this section, mandamus may lie, in a proper case, to compel action by other federal boards or officers. Thus it has been held that a collector of customs may be compelled by mandamus to perform purely ministerial duties; (55 C. J. S. p. 202). Mandamus lies to compel the interstate commerce commission to perform a purely legal duty, in the performance of which no act of judgment is involved; also to proceed and decide a case according to its judgment and discretion, where it refuses to proceed at all on the ground that it is without jurisdiction and where in fact the law requires it to do so. (55 C. J. S. p. 202). Mandamus lies to compel the commissioner of patent to perform ministerial duties; and it is proper remedy where he acts beyond his authority and without warrant of law. (55 C. J. S. p. 201). The remaining question to be determined refers to the claim that the Chinese Flour Importers Association is not the real party in interest in this case and, therefore, the petition should be dismissed. It is true that the petition has been filed in the name of the association, but it is likewise true that the association has filed the petition in behalf of its members who are all old importers and are entitled to import quota allocations under the law. This association dealt with the PRATRA directly, and vice versa, in so far as the subject matter of litigation is concerned, and it is this association that filed the bond for the issuance of the writ of preliminary injunction prayed for in the petition. In Gallego et al. vs. Kapisanan Timbulan ng mga Manggagawa,* 46 Off. Gaz., 4245, it was held that a labor organization has legal personality to file a complaint in representation of its members. By analogy, the appellee has legal personality to represent its members in this case. This case can also be considered as suit under section 12, Rule 3 of the Rules of Court.

Wherefore, the decision appealed from is affirmed, with costs against the appellants. The writ of preliminary injunction issued by the lower court is hereby made final. PP v. Chan Fook 42 Phil 230 G.R. No. L-16968 October 6, 1921 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appelle, vs. CHAN FOOK, Defendant-Appellant. Hartford Beaumont for appellant. No appearance for appellee. VILLAMOR, J.: The appellant Chan Fook was prosecuted for the crime of resistance and disobedience to the public authority, and sentenced by the Court of First Instance of Manila to two months and one day of arresto mayor and to pay a fine or 1,301 pesetas and the costs of the action, with subsidiary imprisonment in case of insolvency.chanroblesvirtualawlibrary chanrobles virtual law library From the record it appears that the accused, a Chinese subject, was a passenger of the United States Military Transport South Bend, which arrived in Manila on April 6, 1920. Having been allowed by the immigration authorities to land, he left the boat on the same day, April 6. At about 3 or 4 o'clock in the afternoon of the following day, he went to pier no. 1 to get his baggage. After the search of the baggage in which postcards of an indecent character were found, a customs agent, Eugenio M. Cruz, attempted to search the body of the accused, to which the latter apparently objected. A dispute took place between the two, which terminated in the secret agent seizing the Chinaman by the arm with intent to search his body, after showing him his police badge. The accused resisted and struck the secret agent on the stomach. The latter in turn struck him on the neck. Here the customs inspector, Anastacio Jacinto, intervened, and explained to the accused that Cruz was a customs secret service agent and had the right to search him in order to find whether he had on his person any contraband. Then the appellant made no further resistance and allowed himself to be searched.chanroblesvirtualawlibrary chanrobles virtual law library Under such circumstances, has the accused committed the crime of resistance and disobedience to the public authority as alleged in the information? To decide this question, it is first necessary to determine whether the agent, Cruz, was authorized to search the person of the accused.chanroblesvirtualawlibrary chanrobles virtual law library The prosecution alleges that under section 1338 of the Administrative Code all persons coming into the Philippine Islands from Foreign countries shall be liable to detention and search by the customs authorities under such regulations as may be prescribed relative thereto. The defense, however, contends that once the accused has arrived at the point of his destination by being allowed to leave the boat and to land he was beyond the jurisdiction of the customs authorities, and, therefore, not liable to search without judicial warrant. Section 1338 of the Administrative Code provides: SEC. 1338. Search of persons arriving from foreign countries. - All persons coming into the Philippine Islands from foreign countries shall be liable to detention and search by the customs authorities under such regulations as may be prescribed relative thereto.chanroblesvirtualawlibrary chanrobles virtual law library Female inspectors may be employed for the examination and search of persons of their own sex. Having in mind the aim of the law in authorizing the search of persons coming from foreign countries, which is to avoid the clandestine introduction into the Philippine Islands of goods subject to the payment of customs duties, or the importation of the articles prohibited by law, or the entrance of persons who have no right to reside in these Islands, we are of the opinion that after the customs authorities have permitted the accused to land in Manila, the terminus of his voyage, he ceased to be a passenger within the meaning of said section 1338 of the Administrative Code.chanroblesvirtualawlibrary chanrobles virtual law library The fact that the accused returned to pier No. 1 to get the baggage that he had left there the day before does not subject him to the operation of said section. He could have gone back there several weeks or months after his arrival, and in such case, if the contention of the prosecution is sustained, all foreigners arriving in the Philippines would be in the highly anomalous situation of being liable to detention of the right to be secured against unreasonable searches guaranteed by section 3 of the Act of Congress of August 29, 1916, known as Jones Law, which provides: That the right to be secured against unreasonable searches and seizures shall not be violated.

It is urged that the object of searching the person of the accused was to find whether he had with him any contraband. It was too late to look for any contraband. He had already been searched when he left the boat. The accused had reached his destination, spending the night in the house where he had taken lodging. It is not, therefore, reasonable to believe that when he returned to pier No. 1 the next day, he had about his body any contraband. Thus the search made by the agent Cruz appears to be unreasonable.chanroblesvirtualawlibrary chanrobles virtual law library Commenting on the meaning and score of resistance and disobedience, as elements of the crimes against public authority and its agents, Groizard, among other things, says: A person in authority, his agent or a public officer who exceeds his power can not be said to be in the exercise of the functions of his office. The law that defines and establishes his powers does not protect him for anything that has not been provided for.chanroblesvirtualawlibrary chanrobles virtual law library The scope of the respective powers of public officers and their agents is fixed, If they go beyond, it and they violate any recognized rights of the citizens, then the latter may resist the invasion, specially when it is clear and manifest. The resistance must be coextensive with the excess, and should not be greater than what is necessary to repel the aggression.chanroblesvirtualawlibrary chanrobles virtual law library The invasion of the prerrogatives or rights of another and the excess in the functions of an office, are the sources that make for legitimate resistance, especially, in so far as it is necessary for the defense of the persons or their rights in the manner provided for in article 8 of the Penal Code. (3 Groizard, pp. 456, et seq.) In the case at bar the action of the accused in laying his hands on the agent Cruz is, in our opinion, an adequate defense to repel the aggression of the latter, who had seized him by the arm for the purpose of searching him. In accordance with the repeated decisions of the supreme court of Spain, the gravity of a disobedience to an order of a person in public authority is measured and graded by the circumstances surrounding the act, the motives prompting it, and the real importance of the transgression rather than by the source of the order disobeyed. And, taking into consideration the circumstances of the present case, wherein the agent Cruz had exceeded his functions, and wherein the accused acted in defense of the most highly esteemed of individual rights - the constitutional right to be secured against unreasonable searches - we are of the opinion that there is no ground for finding the accused guilty of the crime defined in article 252 of the Penal Code.chanroblesvirtualawlibrary chanrobles virtual law library The supreme court of Spain, in a decision rendered December 26, 1876, held that the act of obstinately disregarding an order of an agent of the authority does not constitute the crime of grave resistance and disobedience to an agent of the public authority where it appears that upon being directed for the third time, the accused obeyed, though uttering unpleasant words, for although the accused did not leave the premises on the first and second requests, he, however, obeyed on the third, and did not render it necessary for the public officer to make use of the means authorized by law to make himself respected. That the accused had no intention to resist and disobey the agents of the authority, in the legal sense of the word, is shows by the fact that by the mere explanation of the customs inspector, Anastasio Jacinto, he finally allowed himself to be searched. Jacinto's words were sufficient to make the Chinaman submit himself peacefully to the requirement of the agent Cruz.chanroblesvirtualawlibrary chanrobles virtual law library That foreigners in the Philippines are entitled to the benefits of the individual rights secured by the Philippine Bill is undeniable. In the case of Kepner vs. U. S. (195 U. S., 100), the Supreme Court said: When Congress came to pass the Act of July 1, 1902, it enacted, almost in the language of the President's instructions, the Bill of Rights of our Constitution. In view of the expressed declarations of the President, followed by the action of Congress, both adopting, with little alternation, the provisions of the Bill of Rights, there would seem to be no room for argument that in this form it was intended to carry to the Philippine Islands those principles of our government which the President declared to be established as rules of law for the maintenance of individual freedom, at the same time expressing regret that the inhabitants of the Islands had not therefore enjoyed their benefit. And according to the principles underlying the Constitution, as extended to the Philippine Islands by the President's instructions to the Commission and by the Philippine Bill, foreigners are entitled to the protection of their life, liberty, and property. In the case of Yick Wo vs. Hopkins (118 U. S., 356, 369), Justice Matthews says: The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: "Nor shall any State deprive any person of life, liberty, or properly without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.

In view of the foregoing, the judgment appealed from is reversed, and the accused must be, and is hereby, acquitted with the costs de oficio. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library Johnson, Araullo, Street and Avanceña JJ., concur. Kwong Sing v. City of Manila 41 Phil 103 Youmans Case, U.S. v. United Mexican State 1926 U.S. vs. Panama, 6 United Rep, Intl. Arb Awards 308 Texas Cattle Case, American Mexican Claims Com. 1948 Germany v. U.S. ICJ June 23, 2001, Las Grand Case Buffalo Claim, Italy v. Venezuela, 10 UN Rep Intl. Arb Awards 234 (1908) Borovsky v. Com of Immigration, 90 Phil 107 Li Sien Giap v. Director of Lands, 59 Phil 687 Radick v. Hutchins 95 US 210 U.S. v. Guatemala, Shufeldt Claim, 1930, 5 Hackworth, p 485 2 UN Rep Arb Awards 1079 Sambiaggo Case, (Italy v. Venezuela) Venezuela Arbitration of 1903,, p 666\ Bolivar Railway Co v. Ralston, Venezuela Arb, of 1903 p 388 U.S. v. Great Britain, US – GB Claims Arb 1920 (Nielsen Report) Rosa Gelbtrunk Claim, US v. El Salvadsor, Arb Tribunal 1902 French Co. of Venezuela Railroad Case 10 UN Rep Intl Arb Awards 285 Kummerov Case 10 UN Rep Intl arb Award 361 Dix Case 9 UN Rep Intl Arb awards 119 Ambatielos Case Greece v. UK ICJ Rep 28, 952 Estonia v. Lithuania PCIJ Rhodore Forest Claim 3 UN Rep Intl Arb award 1406 Finnish Shipowners Claim 3 UN Rep Intl Arb awards 1484 Robert E. Brown Case 6 UN Rep Intl Arb awards 120 Debenture Holders of San Marco Co 1931, 5 UN Rep Arb awards 191 Panevetzus Saldutiskis Railway PCIJ ser. A/B no. 76 At. 16 (1939) Mavrommatic Palestine Concessions PCIJ ser A. No. 2 at 12 (1924)