Public International Law case digests

ANTONIO CO VS ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES G.R. Nos. 92191-92, 30 July 1991 Gutierrez, Jr., J. FACTS: Ong won the Congressional Election of Second District of Northern Samar. The other electioneers were Balinquit and Co. The two questioned the citizenship of Ong contending that he is not a Filipino citizen before the House Electoral Tribunal. HRET decided in favor of Ong and Balinquit and Co brought the petition to the Supreme Court. ISSUE: Whether or not Ong is a natural born Filipino citizenship. RULING: Yes, Ong is a natural born Filipino Citizen. Ong became a Filipino Citizen through his mother and not through his father. It is unnecessary to trace the citizenship of Ong to his father since his father was already a Filipino citizen when he was born. The citizenship of the father is relevant only to determine whether or not the respondent “chose” to be a Filipino when he came of age. At that time and up to the present, both mother and father were Filipinos. Ong could not have elected any other citizenship unless he first formally renounced Philippine citizenship in favor of a foreign nationality. Unlike other persons faced with a problem of election, there was no foreign nationality of his father which he could possibly have chosen.

THE NOTTEBOHM CASE (Liechtenstein v. Guatemala) ICJ, 06 April 1955 FACTS: Nottebohm, born September 16, 1881, in Hamburg, Germany, possessed German citizenship. Although he lived in Guatemala from 1905 until 1943 he never became a citizen of Guatemala. On October 9, 1939, Nottebohm applied to become a naturalized citizen of Liechtenstein. The application was approved and he became a citizen of Liechtenstein. He then returned to Guatemala on his Liechtenstein passport and informed the local government of his change of nationality. When he tried to return to Guatemala once again in 1943 he was refused entry as an enemy alien since the Guatemalan authorities did not recognize his naturalization and regarded him as still German. It has been suggested that the timing of the event was due to the recent entry of the United States and Guatemala into the Second World War. He was later extradited to the United States, where he was held at an internment camp until the end of the war. All his possessions in Guatemala were confiscated. After his release, he lived out the rest of his life in Liechtenstein. The Government of Liechtenstein granted Nottebohm protection against unjust treatment by the government of Guatemala and petitioned the International Court of Justice. However, the government of Guatemala argued that Nottebohm did not gain Liechtenstein citizenship for the purposes of international law. The court agreed and thus stopped the case from continuing. ISSUE: Whether or not the Liechtenstein may claim restitution and compensation to the Government of Guatemala on behalf of Nottebohm who was a citizen thereof. RULING: Although the Court stated that it is the sovereign right of all states to determine its own citizens and criteria for becoming one in municipal law, such a process would have to be scrutinized on the international plane where the question is of diplomatic protection. The Court upheld the principle of effective nationality, (the Nottebohm principle) where the national must prove a meaningful connection to the state in question. This principle was previously applied only in cases of dual nationality to determine which nationality should be used in a given case.

In this case, Nottebohm had forfeited his German nationality and thus only had the nationality of Liechtenstein. However, the Court pointed out that he always retained his family and business connections with Germany and that there is nothing to indicate that his application for naturalization in Liechtenstein was motivated by any desire to dissociate himself from the Government of his country. There is thus the absence of any bond of attachment with Liechtenstein, but there is a long-standing and close connection between him and Guatemala, a link which his naturalization in no way weakened. For these reasons the Court held the claim of Liechtenstein to be inadmissible. NATIONALITY DECREES IN TUNIS AND MOROCCO Advisory Opinion of 7 February 1923 (Series B No. 4) FACTS: A decree was promulgated by the Bey of Tunis which enacts that: “Every person born in the territory of the Kingdom of parents one of whom was also born there is a Tunisian.” The President of the French Republic likewise issued a Decree which states that: “Every person born in the Regency of Tunis of parents of whom one who was also born there is French. Similar legislation as introduced in Morocco (French Zone). The British Ambassador in Paris protested to the French Government against the application to British subjects of the decrees promulgated in Tunis and also stated that his Government was unable to recognize that the decrees put into force in the French Zone of Morocco ere applicable to persons entitled to British nationality. The British Government then proposed to the French that the matter should be referred to the Court. However the French Government refused to submit the matter to arbitral or judicial settlement, thus, the dispute as submitted to the Council of the League of Nations. ISSUE: Whether or not the dispute, international law, solely a matter of domestic jurisdiction. RULING: The exclusive jurisdiction of States embraces matters which are not in principle regulated by international law. The extent of this jurisdiction, which, in the opinion of the Court, includes in principle, questions of nationality, varies with the development of international relations; it is therefore a purely relative question. Moreover, even as regards matters falling within this domain, the right of a State to use its discretion may be restricted by the effect of international obligations. Nevertheless, a dispute, which, in principle, falls within the domestic jurisdiction of a State, is not removed from that domain simply because international engagements are invoked.

From this point of view, the Court considers the contention that France enjoys in Tunis and Morocco the same exclusive right to legislate on questions of nationality as in France itself, and that the local sovereignty of the protected State in conjunction with the public powers exercised by the protecting State may be equivalent to full sovereignty. Thus, the Court arrives at the conclusion that the dispute in question does not relate to a matter which, by international law, is solely within the domestic jurisdiction of France; the Council therefore is competent to deal with the dispute laid before it by Great Britain regarding the nationality decrees in Tunis and Morocco.

UNITED STATES VS WONG KIM ARK 169 U.S. 649, 28 March 1898 FACTS: Wong Kim Ark was born in 1873 in San Francisco, California. His parents were both Chinese immigrants and remained subjects of the Chinese emperor while they lived in the United States. Ever since he was born, Wong Kim Ark lived in California. Congress passed the Chinese Exclusion Act in 1882, which denied citizenship to any Chinese immigrants and did not allow any new immigrant laborers to come from China until 1892. In 1890, Wong Kim Ark’s parents returned to China. He visited them that same year, but came back to San Francisco, recognized as a “native-born citizen” by the U.S. Customs officials. In 1894, when he was 21 years old, he went back to China to visit his parents again. In 1895, he attempted to re-enter the United States, but U.S. customs officials denied his entry, claiming this time that he was not a U.S. citizen. ISSUE: Whether or not Wong Kim Ark is a U.S. citizen by birth. RULING: Yes. The Chinese Exclusion Act was passed 14 years after the Fourteenth Amendment, so it cannot possibly control the meaning of the amendment. Justice Horace Gray wrote the opinion of the Supreme Court, which stated that, the Act “must be construed and executed in subordination” to the Fourteenth Amendment. The court held that the government cannot deny citizenship to anyone born within the United States, including Wong Kim Ark. Furthermore, if he was a citizen, then the Chinese Exclusion Act could not apply to him. Wong Kim Ark’s parents, in particular, were not engaged in any diplomatic or official capacity in the United States at any time.

CASE CONCERNING BARCELONA TRACTION, LIGHT, AND POWER COMPANY, LTD Belgium v. Spain Judgment of 05 February 1970 (ICJ) FACTS: Barcelona Traction, Light, and Power Company, Ltd was a corporation incorporated in Canada, with Toronto headquarters, that made and supplied electricity in Spain. It had issued bonds to non-Spanish investors, but during the Spanish Civil War, the Spanish government refused to allow BTLP to transfer currency to pay bondholders the interest they were due. In 1948 a group of bondholders sued in Spain to declare that BTLP had defaulted on the ground it had failed to pay the interest. The Spanish court allowed their claim. The business was sold, the surplus distributed to the bondholders, and a small amount was paid to shareholders. The shareholders in Canada succeeded in persuading Canada and other states to complain that Spain had denied justice and violated a series of treaty obligations. However, Canada eventually accepted that Spain had the right to prevent BTLP from transferring currency and declaring BTLP bankrupt. Of the shares, 88 per cent were owned by Belgians, and the Belgian government complained, insisting the Spanish government had not acted properly. They made an initial claim at the International Court of Justice in 1958, but later withdrew it to allow negotiations. Subsequent negotiations broke down, and a new claim was filed in 1962. Spain contended that Belgium had no standing because BTLP was a Canadian company. ISSUE: Whether or not the Belgium has the standing to represent its citizens in their claim to BTLP.

RULING: The International Court of Justice held that Belgium had no legal interest in the matter to justify it bringing a claim. Although Belgian shareholders suffered if a wrong was done to the company, it was only the company's rights that could have been infringed by Spain's actions. It would only be if direct shareholder rights (such as to dividends) were affected, that the state of the shareholders would have an independent right of action. It was a general rule of international law that when an unlawful act was committed against a company, only the state of incorporation of the company could sue, and because Canada had chosen not to, this was the end. The idea of a "diplomatic protection" of shareholders was unsound because it would create confusion and insecurity in economic relations as shares are 'widely scattered and frequently change hands'. The court also said that a state is bound to give the same legal protection to foreign investments and nationals, either for natural or legal persons, when it admits them to its territory.

ROBERTS CLAIM United States of America v. United Mexican States 02 November 1926 FACTS: Harry Roberts is an American citizen who was arbitrarily and illegally arrested by Mexican authorities, who held him prisoner for a long time in contravention of Mexican law and subjected him to cruel and inhumane treatment throughout the entire period of confinement. He was imprisoned for nineteen (19) months. Thus, the United States asks that an indemnity be paid by the Government of Mexico in the sum of $17,650 for the wrongful treatment, loss of income and attorney’s fees of the accused. ISSUE: Whether or not the Government of United States may claim indemnity for the mistreatment done by another State to their citizen. RULING: Facts with respect to equality of treatment of aliens and national may be important in determining the merits of a complaint of mistreatment of an alien. But such equality is not the ultimate test of the propriety of the acts of authorities in the light of international law. That test is, broadly speaking, whether aliens are treated in accordance with ordinary standards of

civilization. Thus, the treatment of Roberts would warrant an indemnity on the ground of cruel and inhumane imprisonment. Moreover, the respondent Government has not denied that, under the Convention of September 8, 1923, acts of authorities of San Luis Potosi may give rise claims against the Government of Mexico. Thus, the Commission is of the opinion that claims can be predicated on such acts.

LAURA M.B. ET AL CLAIM United States of America v. United Mexican States 16 November 1925 FACTS: The present claim is instituted by the United States of America on behalf of Laura May Buffington Janes, individually, and as guardian of her to minor children. This is made to claim for losses and damages amounting to $25,000.00 for the murder of Byron Everett Janes, an American citizen. It is alleged that the Mexican authorities did not take proper steps to apprehend and punish the perpetuator of the murder who is a citizen of Mexico. ISSUE: Whether or not the claim will prosper. RULING: The evidence presented by the claimant government established lack of diligence of Mexican authorities in apprehending the killer of American citizen. International awards have held that, if a State shows serious lack of diligence in apprehending and/or punishing culprits, its liability is a derivative liability, assuming the character of some kind of complicity with the perpetrator himself and rendering the State responsible for the very consequences of the individual’s misdemeanor.

The present case is one of nonrepression. Thus, the international delinquency in this case is separate from the private delinquency of the culprit. The culprit is liable for having killed or murdered an American national; the Government is liable for not having measured up to its duty of diligently prosecuting and properly punishing the offender. The culprit has transgressed the penal code of his country; the State has transgressed a provision of international law as to State duties.

B.E. CHATTIN CLAIM United States of America v. United Mexican States 23 July 1927 FACTS: This claim is made by the United States of America against the United Mexican States on behalf of B.E. Chattin, an American national. Chattin, an employee of Southern Pacific Railroad Company of Mexico, was arrested on a charge of embezzlement. He was tried, convicted and sentenced for twoyear imprisonment but was released from the jail as a consequence of disturbances caused by Madero revolution. He then returned to the United States. It is alleged that the arrest, the trial and the sentence were illegal, that the treatment in jail as inhuman, and that Chattin as damaged to the extent of $50,000.00, which amount Mexico should pay. ISSUE: Whether or not the claim of USA will prosper considering the fact that Chattin escaped from jail. RULING: The Commission concluded that the treatment of Chattin amounts to an outrage, to bad faith, to willful neglect of duty and to an insufficiency of

governmental action amounting to injustice committed by Mexico’s judiciary. Although the illegal arrest of Chattin was not proven, the irregularity of court proceedings was proven with reference to absence of proper investigations, insufficiency of confrontations, withholding from the accused the opportunity to know all of the charges brought against him, undue delay of the proceedings, making the hearing in open court a mere formality, and a continued absence of seriousness on the part of the Court. Moreover, the Commission found that Chattin suffered mistreatment in prison. Taking into consideration the above circumstances that this is a case of direct governmental responsibility and that Chattin, because of his escape, has stayed in jail for eleven months instead of for two years, the Commission allowed the USA in behalf of the claimant damages in the sum of $5,000.00, without interest.

NORTH AMERICAN DREDGING CO. OF TEXAS CLAIM North American Dredging Company of Texas (USA) v. United Mexican States 31 March 1926 FACTS: This case is before this Commission on a motion of the Mexican Agent to dismiss. It is put forward by the United States of America on behalf of North American Dredging Company of Texas, an American corporation, for the recovery of the sum of $233,523.30 with interest thereon, the amount of losses and damages alleged to have been suffered by claimant for breaches of a contract for dredging at the port of Salina Cruz. The contract was entered into between the claimant and the Government of Mexico at Mexico City. In their contract, specifically in Article 18, Calvo Clause was incorporated by Mexico as an indispensable provision, not separable from the other provisions of the contract, was subscribed to by the claimant for the purpose of securing the award of the contract. ISSUE:

Whether or not the Commission cannot hear the case for the claim is based on an alleged non-performance of contract obligations and that the claimant has no right to submit any claims connected with the contract to an international commission due to the Calvo clause contained in the contract. RULING: The Commission decided that the case as presented was not within its jurisdiction. The Commissioners construe Article 18 of the contract before the Commission in this case to mean that with respect to all matters involving the execution, fulfillment, and interpretation of that contract the claimant bound itself to exhaust all remedies afforded under Mexican law by resorting to Mexican tribunals or other duly constituted Mexican authorities before applying to its own Government for diplomatic or other protection, and that this article imposes no other limitation upon any right of claimant. It was further held that said provision in the contract was not intended to and does not prevent claimant from requesting its Government to intervene in its behalf diplomatically or otherwise to secure redress for any wrong which it may heretofore have suffered or may hereafter suffer at the hands of the Government of Mexico resulting from a denial of justice, or delay of justice, or any other violation by Mexico of any right which claimant is entitled to enjoy under the rules and principles of international law, whether such violation grows out of this contract or otherwise. Therefore, the clause will not preclude his Government from espousing, or the tribunal from considering, other claims based on the violation of international law.

BANCO NACIONAL DE CUBA VS SABBATINO 376 U.S. 398, 23 March 1964 FACTS: A contract to purchase Cuban sugar from a wholly owned subsidiary of Compania Azucarera Vertientes-Camaquey de Cuba (CAV) a corporation organized under Cuban law was made by Farr, Whitlock & Co. (Farr) an American commodities broker. The CAV stock was principally owned by United States residents. The agreement was for Farr to pay for the sugar in New York upon the presentation of the shipping documents. After this deal, a law was enacted in Cuba which empowered the government to nationalize forcefully, expropriation of property or enterprise in which American nationals had an interest. Hence, the sugar which Farr had contracted was expropriated from Compania Azucarera. Farr however entered into contracts which was similar to the one made with CAV with the Banco Para el Comercio

de Cuba, which was an instrumentality of the government. This was done by Farr in order to obtain consent from the Cuban government before a ship carrying sugar could leave Cuba. A bill of lading which was also an instrumentality of the Cuban government was assigned by the bank to Banco Para el Comercio de Cuba, who presented the bills and a sight draft as required under the contract to Farr in New York in return for payment. After CAV notified Farr of its claim to the proceeds as rightful owner of the sugar, Farr refused the documents. This action of Farr resulted in a court order which appointed Sabbatino as receiver of CAV‘s New York assets and enjoined it from removing the payments from the state. Based on the allegation of the conversion of the bills of lading seeking to recover the proceeds thereof from Farr and to enjoin Sabbatino, the receiver from exercising dominion over such proceeds, the Banco Nacional instituted this action. A summary judgment was granted against Banco Nacional by the district court on the grounds that the Act of State Doctrine does not apply when the foreign act in question is in violation of international law. The court of appeals also upheld this judgment. ISSUE: Whether or not the Judiciary has the authority to examine the validity of taking of property within its own territory by a foreign sovereign even if the taking violated International Law. RULING: No. The judiciary, in line with the Act of State Doctrine will not examine the validity of a taking of property within its own territory by a foreign sovereign government recognized by this country in the absence of international agreements to the contrary, even if the taking violates customary international law. Even in a situation whereby international law has been violated, the clear implication of past cases is that the Act of State Doctrine is applicable because the Act of State doctrine does not deprive the courts of jurisdiction once acquire over a case. The damages of adjudicating the propriety of such expropriation acts, regardless of whether the State Department has it did in this case, asserted that the act violated international law are too far-reaching for the judicial branch to attempt. Hence the judgment of the court of appeals is reverse and the case remanded back to the district court. TEXACO OVERSEAS PETROLEUM CO. VS LIBYA International Arbitral Award (1977) FACTS: A decree to nationalize all Texaco’s rights, interest and property in Libya was promulgated by Libya. This action of the Libyan Government led Texaco to request for arbitration, but it was refused by Libya. A sole arbitrator was however appointed by the International Court of Justice on Texaco’s request,

and Libya was found to have breached its obligations under the Deeds of Concessions and was also legally bound to perform in accordance with their terms. ISSUE: Whether or not a reference made to general principles of law in the International Arbitration may be a sufficient criterion for the internationalization of a contract. RULING: Yes. Whenever reference is been made to general principles of law in the international arbitration context, it is always held to be a sufficient criterion for the internationalization of a contract. The lack of adequate law in the state considered and the need to protect the private contracting party against unilateral and abrupt modifications of law in the contracting state is a justification to the recourse to general principles. Though international law involves subjects of a diversified nature, legal international capacity is not solely attributable to a state. A private contracting party, unlike a state, has only a limited capacity and is limited to invoke only those rights that he derives from his contract. Applying Libyan law or international law in the arbitration proceedings was a conflict encountered by in this case. Though the contract itself deferred to Libyan law, the court noted that Libyan law does not preclude the application of international law, but that the two must be combined in order to verify that Libyan law complies with international law. Even though the right of a state to nationalize is recognized by international law, this right in itself is not a sufficient justification not to regard its contractual obligations.

CASE CONCERNING ELECTRONICA SICULA S.P.A (ELSI) United States of America v. Italy I.C.J. Rep. 1989, 20 July 1989

FACTS: On 6 February 1987, the United States filed an application with the International Court of Justice instituting proceedings against Italy in respect of a dispute arising out of the requisitioning of the plant and assets of Raytheon-Elsi S.p.A, an Italian company based in Sicily but wholly owned by two US corporations. The parties requested that the matter be referred to a Chamber of the Court. In March/April 1968, the ELSI suffered bankruptcy and as subsequently sold at a reduced price to the State-owned Industria Elettronica Telecommunicazioni S.p.A. (ELTEL). The United States claimed that the requisition had caused the bankruptcy of the company, thereby violating several substantive and procedural rights guaranteed by the FCN Treaty. On the other hand, Italy raised a preliminary objection to the admissibility of the claim on the ground that local remedies had not been exhausted and, in any event, flatly denied any violation of the Treaty and that supposed that there is a violation of its obligations, no injury had been caused for which payment of indemnity would be justified. ISSUE: Whether or not Italy impaired Raytheon’s right to manage and control under Article III (2) of the 1948 FCN and failed to provide the full protection and security dictated by treaty and international law under Article V (1) and (3). RULING: The I.C.J. held that Italy had not violated the FCN Treaty. Despite the court's broad interpretation of the treaty, the court found that the United States failed to state a claim absent a direct causal link between the mayor's requisition order and ELSI's bankruptcy. The court determined that the core claim was found in article III of the treaty: impairment of the right to manage and control. Although the Italian courts found the requisition order unjustifiable, the I.C.J. was left to determine the financial position of ELSI. If ELSI's position was so precarious that Raytheon and Machlett would not have been able to manage and control it before the requisition order, then ELSI was already deprived of the rights allegedly impaired by the order. The court also considered whether the orderly liquidation plan was still feasible as of March 31, 1968, after the dismissal of ELSI's employees, and found that the United States had failed to establish the feasibility of liquidation. Italy's actions or omissions were found not to have directly impaired the management and control of ELSI, thereby leaving no cause of action.

CASE CONCERNING THE VIENNA CONVENTION ON CONSULAR RELATIONS Paraguay v. United States of America 98/22, International Court of Justice (ICJ), 9 June 1998 FACTS: On 3 April 1998, Paraguay instituted proceedings against the United States before the International Court of Justice (ICJ) in a dispute concerning alleged violations of the Vienna Convention on Consular Relations (1963). It maintained that Mr. Angel Francisco Breard, a Paraguayan national, was tried and sentenced to death without the State of Virginia advising him of his right to assistance by the consular officers of Paraguay, as required by Article 36 of the Vienna Convention. The Convention came into force in the United States on 24 December 1969. ISSUE: Whether or not the Paraguay is entitled to restitution in integrum for the alleged violation of the United States of its international legal obligations to Paraguay as provided under the Vienna Convention. RULING: According to the findings of the Court, the merits of the case were only concerned with the preservation of rights and the prevention of irreparable damage to those rights which were the subject of the dispute. With a view to the fact that the execution was ordered for 14 April 1998 and the execution would render it impossible for the Court to order the relief Paraguay sought, the Court found that the circumstances required it to indicate the provisional measures requested by Paraguay. The Court stated expressly that it was not concerned with the question of the death penalty as such nor with any activity as a court of appeal, but only with the resolution of an international dispute between two States.

THE LAGRAND CASE Germany v. United States of America I.C.J. 2001 I.C.J. 466. FACTS: A suit which claimed the United States law enforcement personnel failed to advice aliens upon their arrest of their rights was filed by Paraguay, Germany and Mexico at the international Court of Justice. The plaintiffs also claimed that as a remedy for violation of the Vienna Convention, state courts should review and reconsider the death sentences to determine if the lack of consular access prejudiced the aliens. The German’s case involved LaGrand and his brother who were executed before the matter came to the I.C.J. The Court found that the U.S. had breached its obligations to Germany under the Vienna Convention by not giving notice about LaGrand and his brother of right to consular notification, and by failing to provide judicial review of the conviction and sentence. ISSUE: Whether or not the United States breached its legal obligation provided under the Vienna Convention on Consular Relations. RULING: Yes. A state that breaches its obligations to another under the Vienna Convention on Consular Relations by failing to inform an arrested alien of the right to consular notification and to provide judicial review of the alien’s conviction and sentence also violate individual rights held by the alien under international law. The meaning adduced to the phrase “authorities shall inform the person concerned without delay of his rights under this subparagraph” of Article 36 suggests that the rights to be informed of their rights under the Convention is an individual right of every national of a state that is party to the Convention.

AVENA AND OTHER MEXICAN NATIONALS CASE Mexico v. United States of America Judgment, I.C.J. Reports 2004, 12, General List No. 128 31 April 2004 FACTS: On 9 January 2003 Mexico instituted proceedings against the United States of America in a dispute concerning alleged breaches of Articles 5 and 36 of the Vienna Convention on Consular Relations of 24 April 1963 in relation to the treatment of a number of Mexican nationals who had been tried, convicted and sentenced to death in criminal proceedings in the United States. On 9 January 2003 Mexico also asked the Court to indicate provisional measures, and in particular to order the United States to take all measures necessary to ensure that no Mexican national was executed pending a final decision of the Court. ISSUE: Whether or not the United States of America breached its obligations to Avena and other Mexican national and to Mexico under the Vienna Convention on Consular Relations. RULING: The court concluded that in 51 of the cases, excluding those of César Roberto Fierro Reyna, Roberto Moreno Ramos, and Osvaldo Torres Aguilera, the United States had breached their obligation as set forth under Article 36 paragraph 1 of the Vienna Convention on Consular Relations by not informing the appropriate Mexican consular post without delay. By not doing so, the U.S. had also deprived Mexico of the right to provide assistance to its nationals. In regards to César Roberto Fierro Reyna, Roberto Moreno Ramos, and Osvaldo Torres Aguilera, by not allowing a review and reconsideration of their convictions and sentences, the United States also violated Article 36, paragraph 2 of the convention. As reparation in this case, the United States of America must provide review and reconsideration of convictions and sentences of the Mexican nationals and implement specific measures to ensure non-repetition.

CASE CONCERNING UNITED STATES DIPLOMATIC AND CONSULAR STAFF IN TEHRAN United States of America v. Iran Judgment of 24 May 1980 FACTS: This case was brought to the International Court of Justice by the United States of America against Iran in response to the Iran hostage crisis, where United States diplomatic offices and personnel were seized by militant revolutionaries. ISSUE: Whether or not the Government of Iran has violated a number of the legal obligations imposed upon it by the Vienna Convention on Diplomatic Relations. RULING: The Court issued an Order of Provisional Measures which ordered a preservation of the respective rights and obligations the two countries owed one another pending the final decision of the court. More specifically, the Court unanimously declared Iran should ensure the restoration of the U.S. embassy in Tehran to U.S. possession, release the hostages, and afford diplomatic officials full protections as afforded by international law. The ICJ considered the case in hand in two phases. The first phase referred to the armed attack on the US Embassy in Tehran by militants and students of Iran. The question asked was whether the militants and the students were 'agents' of the Iranian Government and therefore, acting on their behalf. The second phase comprises the whole series of facts which occurred following the completion of the occupation of the US Embassy by militants and the seizure of the Consulates.

DEL MONTE CORPORATION-USA VS COURT OF APPEALS G.R. no. 136154, February 7, 2001 Bellosillo, J. FACTS: In a distributorship agreement, petitioner Del Monte Corporation-USA appointed private respondent Montebueno Marketing as the sole and exclusive distributor of its Del Monte products in the Philippines. Such agreement provided for an arbitration clause that all disputes arising out of or relating to the Agreement or the parties’ relationship, including the termination thereof, shall be resolved by arbitration. Immediately after its appointment, private respondent MMI appointed Sabrosa Foods, Inc. (SFI), with the approval of petitioner DMC-USA, as MMI’s marketing arm to concentrate on its marketing and selling function as well as to manage its critical relationship with the trade. On 3 October 1996 private respondents MMI, SFI and MMI’s Managing Director Liong Liong C. Sy (LILY SY) filed a Complaint against petitioners DMC-USA and others alleging that DMC-USA products continued to be brought into the country by parallel importers despite the appointment of private respondent MMI as the sole and exclusive distributor of Del Monte products thereby causing them great embarrassment and substantial damage. ISSUE: Whether the dispute between the parties warrants an order compelling them to submit to arbitration. RULING: RA 876 expressly authorizes arbitration of domestic disputes, foreign arbitration as a system of settling commercial disputes was likewise recognized when the Philippines adhered to the United Nations "Convention on the Recognition and the Enforcement of Foreign Arbitral Awards of 1958" under the 10 May 1965 Resolution No. 71 of the Philippine Senate, giving reciprocal recognition and allowing enforcement of international arbitration agreements between parties of different nationalities within a contracting state. A careful examination of the instant case shows that the arbitration

clause in the Distributorship Agreement between petitioner DMC-USA and private respondent MMI is valid and the dispute between the parties is arbitrable. However, only parties to the Agreement, i.e., petitioners DMCUSA and its Managing Director for Export Sales Paul E. Derby, Jr., and private respondents MMI and its Managing Director LILY SY are bound by the Agreement and its arbitration clause as they are the only signatories thereto. Consequently, referral to arbitration in the State of California pursuant to the arbitration clause and the suspension of the proceedings in Civil Case No. 2637-MN pending the return of the arbitral award could be called for but only as to petitioners DMC-USA and Paul E. Derby, Jr., and private respondents MMI and LILY SY, and not as to the other parties in this case.

LM POWER ENGINEERING CORP. VS CAPITOL INDUSTRIAL CONSTRUCTION GROUPS, INC. G.R. no. 141833, March 26, 2003 Panganiban, J. FACTS: Petitioner LM Power Engineering Corporation and Respondent Capitol Industrial Construction Groups Inc. entered into a “Subcontract Agreement” involving electrical work at the Third Port of Zamboanga. Upon completing its task under the Contract, petitioner billed respondent. Contesting the accuracy of the amount of advances and billable accomplishments listed by the petitioner, the respondent refused to pay. Respondent also took refuge in the termination clause of the Agreement. Because of the dispute, petitioner filed a Complaint for the collection of the amount representing the alleged balance due it under the Subcontract. Instead of submitting an Answer, respondent filed a Motion to Dismiss alleging that the Complaint was premature, because there was no prior recourse to arbitration. ISSUE: Whether or not the dispute between the parties is arbitrable. RULING: The dispute arose from the parties’ incongruent positions on whether certain provisions of their Agreement could be applied to the facts. The instant case involves technical discrepancies that are better left to an arbitral body that has expertise in those areas. In any event, the inclusion of an arbitration clause in a contract does not ipso facto divest the courts of jurisdiction to pass upon the findings of arbitral bodies, because the awards are still judicially reviewable under certain conditions. Clearly, the resolution of the

dispute between the parties herein requires a referral to the provisions of their Agreement. Within the scope of the arbitration clause are discrepancies as to the amount of advances and billable accomplishments, the application of the provision on termination, and the consequent set-off of expenses.

FRABELLE FISHING CORP. VS PHILIPPINE AMERICAN LIFE INSURANCE CO. G.R. no. 158560, August 17, 2007 Sandoval-Gutierrez, J. FACTS: Respondents, Philam Properties Corporation, Philippine American Life Insurance Company, and PERF Realty Corporation, entered into a Memorandum of Agreement (1996 MOA) whereby each agreed to contribute cash, property, and services for the construction and development of Philamlife Tower. They executed a Deed of Assignment (1996 DOA) wherein they assigned to Frabelle Properties Corporation (Frabelle) their rights and obligations under the 1996 MOA with respect to the construction, development, and subsequent ownership of Unit No. 38-B located at the 38th floor of Philamlife Tower. The parties also stipulated that the assignee shall be deemed as a co-developer of the construction project with respect to Unit No. 38-B. Frabelle, in turn, assigned to Frabelle Fishing Corporation (Frabelle Fishing), petitioner herein, its rights, obligations and interests over Unit No. 38-B. Petitioner Frabelle Fishing and respondents executed a Memorandum of Agreement (1998 MOA) to fund the construction of designated office floors in Philamlife Tower. The dispute between the parties started when petitioner found material concealment on the part of respondents regarding certain details in the 1996 DOA and 1998 MOA and their gross violation of their contractual obligations as condominium developers. Petitioner then referred the matter to the Philippine Dispute Resolution Center, Inc. (PDRCI) for arbitration. However, respondents manifested their refusal to submit to PDRCI’s jurisdiction. Thus, the petitioner filed with the Housing and Land Use

Regulatory Board (HLURB) a complaint for reformation of instrument, specific performance and damages against respondents. ISSUE: Whether the parties should initially resort to arbitration. RULING: Paragraph 4.2 of the 1998 MOA mandates that any dispute between or among the parties “shall finally be settled by arbitration conducted in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce.” Petitioner referred the dispute to the PDRCI but respondents refused to submit to its jurisdiction. It bears stressing that such arbitration agreement is the law between the parties. They are, therefore, expected to abide by it in good faith. It has previously held that arbitration is one of the alternative methods of dispute resolution that is now rightfully vaunted as “the wave of the future” in international relations, and is recognized worldwide. To brush aside a contractual agreement calling for arbitration in case of disagreement between the parties would therefore be a step backward.

JORGE GONZALES VS HON. OSCAR B. PIMENTEL G.R. No. 167994, January 22, 2007 Tinga, J. FACTS: This case stemmed from the petition to compel arbitration filed by respondent Climax-Arimco while the complaint for the nullification of the Addendum Contract was pending before the DENR Panel of Arbitrators. The petition for arbitration was subsequently filed and Climax-Arimco sought an order to compel the parties to arbitrate pursuant to the said arbitration clause. Gonzales then filed an Answer with Counterclaim questioning the validity of the Addendum Contract containing the arbitration clause alleging that the Addendum Contract containing the arbitration clause is void in view of Climax-Arimco’s acts of fraud, oppression and violation of the Constitution. Thus, the arbitration clause, Clause 19.1, contained in the Addendum Contract is also null and void ab initio and legally inexistent. The RTC then issued an order requiring Gonzales to proceed with arbitration proceedings and appointing retired CA Justice Jorge Coquia as sole arbitrator. ISSUE: Whether or not the dispute is subject to arbitration.

RULING: Arbitration, as an alternative mode of settling disputes, has long been recognized and accepted in our jurisdiction. Foreign arbitration, as a system of settling commercial disputes of an international character, was recognized when the Philippines adhered to the United Nations "Convention on the Recognition and the Enforcement of Foreign Arbitral Awards of 1958," under the 10 May 1965 Resolution No. 71 of the Philippine Senate, giving reciprocal recognition and allowing enforcement of international arbitration agreements between parties of different nationalities within a contracting state. The enactment of R.A. No. 9285 further institutionalized the use of alternative dispute resolution systems, including arbitration, in the settlement of disputes. Thus, a clause in a contract providing that all matters in dispute between the parties shall be referred to arbitration is a contract. Moreover, the doctrine of separability or severability enunciates that an arbitration agreement is independent of the main contract. In this case, Gonzales’s argument that the Addendum Contract is null and void making the arbitration clause therein void is not tenable. First, the proceeding in a petition for arbitration under R.A. No. 876 is limited only to the resolution of the question of whether the arbitration agreement exists. Second, the separability of the arbitration clause from the Addendum Contract means that validity or invalidity of the Addendum Contract will not affect the enforceability of the agreement to arbitrate. Thus, Gonzales’s petition should be dismissed.

THE CAROLINE VS. UNITED STATES 11 U.S. 7 Cranch 496 496 (1813) FACTS: An information was filed against the Caroline which was founded upon an alleged violation either of the 1st section of an act of Congress, passed on March 22, 1794, entitled “An act to prohibit the carrying on the slave trade from the United States to any foreign place or country,” or of the Act which was passed on March 2, 1807, entitled “An act to prohibit the importation of slaves into any port or place within the jurisdiction of the United States from and after the first day of January in the year of our Lord one thousand eight hundred and eight.” By the act of 1794, the fitting or sailing of a ship, for the purpose of a traffic in slaves to any foreign country, subjects the ship, concerned in such traffic, to forfeiture. The Act of 1807 enacts that “if any ship within the jurisdiction of the United States shall be fitted out or caused to said by any person, either as master,

factor or owner, 'for the purpose of procuring any negroe, mulatto or person of color from any foreign country to be transported to any place whatsoever within the jurisdiction of the United States, to be held, sold, or disposed of as slaves, or to be held to service or labor,' shall be forfeited to the United States.” It was admitted by the Claimant, that the Caroline came into this port equipped like any common merchant vessel, that she did, after her arrival, receive fitments and take on board articles calculated for the slavetrade only. ISSUE: Whether or not the Caroline should be forfeited to the United States for its violation of either Act of 1794 or the Act of 1807. RULING: The Court decided that a libel for forfeiture must be particular and certain in all the material circumstances which constitute the offense. The vessel is only liable to forfeiture when she shall have been actually fitted, equipped or prepared, not while she is fitting, equipping, or preparing. The degree of equipment ought to have been stated that the Court might judge whether it were such fitting, or equipment as is contemplated by the law. Upon every information for a penalty, the offence should be fully proved. This case is like that of Moodie v. Ship Alfred, in which this Court decided that the ship was not illegally fitted out, although she had taken on board some articles calculated for war.

CASE CONCERNING MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA Nicaragua v. United States of America ICJ, 27 June 1986 FACTS: Nicaragua brought a suit against the United States on the ground that the United States was responsible for illegal military and paramilitary activities in and against Nicaragua. The United States challenged the jurisdiction of the I.C.J when it was held responsible for illegal military and paramilitary activities in and against Nicaragua in the suit the plaintiff brought against the defendant in 1984. Though a declaration accepting the mandatory jurisdiction of the Court was deposited by the United States in a 1946, it tried

to justify the declaration in a 1984 notification by referring to the 1946 declaration and stating in part that the declaration “shall not apply to disputes with any Central American State….” Apart from maintaining the ground that the I.C.J lacked jurisdiction, the States also argued that Nicaragua failed to deposit a similar declaration to the Court. On the other hand, Nicaragua based its argument on its reliance on the 1946 declaration made by the United states due to the fact that it was a “state accepting the same obligation” as the United States when it filed charges in the I.C.J. against the United States. Also, the plaintiff intent to submit to the compulsory jurisdiction of the I.C.J. was pointed out by the valid declaration it made in 1929 with the I.C.J’s predecessor, which was the Permanent Court of International Justice, even though Nicaragua had failed to deposit it with that court. The admissibility of Nicaragua’s application to the I.C.J. was also challenged by the United States. ISSUE: Whether or not the United States breached its obligations under International law. RULING: The ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from obtaining any actual compensation. The Court found in its verdict that the United States was "in breach of its obligations under customary international law not to use force against another State", "not to intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956." LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS Advisory Opinion of 8 July 1996 FACTS: A request for an advisory opinion as to whether states are permitted to use nuclear weapons under international law was laid on the table of the International Court of Justice by the U.N. General Assembly.

ISSUE: Whether or not threats or use of nuclear weapons are permitted under international law. RULING: Yes. Under certain circumstance, threat or use of nuclear weapons are permitted under international law. The threat or use of nuclear weapons in all circumstances is not authorized or prohibited by either the customary or conventional international nuclear law. Under the U.N. Charter, the threat or use of nuclear weapons would be considered legal if all requirements of Article 51 which deals with state’s rights to self-defense are met. However, in whatever the situation can be, a state obligation exists to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspect under strict and effective international control.

THE LOCKERBIE CASE Libya v. United States 1992 I.C.J. Rep. 114, 14 April 1992 FACTS: On December 21, 1988, Pan American Flight 103, on its way to New York's John F. Kennedy Airport, exploded over Lockerbie, Scotland. All 259

passengers on board were killed. Eleven Lockerbie residents were also killed as the shattered civilian carrier crashed to the ground. The investigation that followed indicated that Libya and Libyan agents were almost exclusively responsible for the bombing. On November 14, 1991, the United States handed down indictments against Abdel Basset Ali Al-Megrahi and Lamen Khalifa Fhimah for their role in the murder of the passengers and crew of Flight 103. Libya argued that under the Convention for the Suppression of Unlawful Acts against Civil Aviation (the Montreal Convention), Libya could either extradite or prosecute the suspects themselves. Libya chose to prosecute the suspects themselves. However, the United States and the UK took the case to the United Nations Security Council (UNSC) which issued two resolutions that urged Libya to hand over the bombing suspects. ISSUE: Whether or not the resolutions issued by UN Security Council is binding to Libya. RULING: Under Article 39 of the United Nations Charter, it allows the UNSC to take enforcement actions to restore international peace. It also provided under its Article 103 that, "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail and under Article 25 of the same charter, member States must follow UNSC resolutions. Thus, the ICJ found that the UNSC resolutions were permissible, and the Libya must hand over the suspects. Moreover, UNSC decisions are binding and cannot be subjected to judicial review of the ICJ.

ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO Democratic Republic of Congo v. Uganda Judgment of 19 December 2005

FACTS: The Democratic Republic of Congo filed its application to the ICJ in June 1999, alleging that acts of armed aggression carried out by Uganda on DRC territory constituted a flagrant violation of the United Nations Charter and the Charter of the Organization of African Unity. Jurisdiction was found under Article 36(2) of the Statute of the Court; the DRC and Uganda have accepted the compulsory jurisdiction of the Court. On July 1, 2000, the Court issued provisional measures requiring that both parties refrain from any action, which might prejudice the rights of the other party or which might aggravate or extend the dispute. ISSUE: Whether or not the Uganda violated several international laws including International Human Rights Law and International Humanitarian Law. RULING: The Court found that Uganda violated the principles of non-use of force in international relations and of non-intervention. The Court additionally found that the DRC in turn violated obligations owed to Uganda under the Vienna Convention on Diplomatic Relations of 1961. The Court found that the acts or omission of Ugandan People’s Defense Force (UPDF) were attributable to Uganda, even where such acts may have been outside the scope of a soldiers or officer’s authority, as the UPDF is a State organ. It further noted that State’s obligations under human rights instruments do not cease in the case of armed conflict. The Court concluded that the acts committed by UPDF and its officers and soldiers violated customary international law as reflected in Articles 25, 27, 28, 43, 46 and 47 of the 1907 Hague Regulations, and also violated the following treaty obligations of Uganda. The Court also found that the Vienna Convention continues to apply regardless of whether a state of armed conflict exists, and further requires accommodation for safe evacuation of diplomatic personnel in the event of conflict. It also requires the respect of diplomatic property and premises in the event diplomatic relations are breached between the sending and receiving States. This principle was upheld in United States Diplomatic and Consular Staff in Tehran. Therefore, the Court granted DRC’s request for reparations, noting under prior precedent that it is well established in general international law that a State which bears responsibility for an internationally wrongful act is under an obligation to make full reparation for the injury caused by that act. In the

event the parties fail to reach a settlement, the amount of reparations will be determined by the Court at a future proceeding. LEGALITY OF USE OF FORCE AGAINST THE FORMER YUGOSLAVIA Yugoslavia v. United States of America ICJ, 1 June 1999 FACTS: On 29 April 1999, the (former) Federal Republic of Yugoslavia (FRY) instituted proceedings before the International Court of Justice (ICJ) against the United States of America “for violation of the obligation not to use force”, resulting from the bombing of Yugoslav territory by the United States and other Member States of NATO. Concurrent to this Application, the FRY submitted a request for the indication of provisional measures, calling on the ICJ to order the United States to “cease immediately its acts of use of force” and to refrain from any further threat or act of force against the FRY. In filing the Application, the FRY relied on Article IX of the Convention on the Prevention and Punishment of Genocide, 1948 and Article 38(5) of the Rules of the Court. These articles state, respectively, that disputes between contracting parties relating to the interpretation, application or fulfillment of the Convention shall be submitted to the ICJ, and that applications filed against States which have not accepted the Court’s jurisdiction cannot proceed unless and until that State accepts the Court’s jurisdiction for the purposes of the case. ISSUE: Whether or not the USA violated its obligation not to use force. RULING: In delivering its decision on 2 June 1999 the ICJ first sought to emphasize its deep concern over the “human tragedy” in Kosovo, and declared its profound concern with the use of force in the Yugoslav territories, which it deemed to “raise very serious issues of international law”. Nevertheless, the ICJ reiterated the fundamental principle of its Statute that it cannot settle a dispute between states in the absence of the consent of those states to its jurisdiction. Furthermore, it reminded the parties that it was unable to indicate provisional measures without first establishing prima facie jurisdiction in a case. On the issue of prima facie jurisdiction, the ICJ ruled that whilst it was indisputable that both the United States and the Federal Republic of Yugoslavia are parties to the Genocide Convention, a reservation made to Article IX by the United States declaring that its “specific consent” is needed before any dispute is submitted to the ICJ, meant that Article IX could not constitute a basis for jurisdiction. Regarding Article 38(5), the Court said that

in the absence of consent by the United States it lacked even prima facie jurisdiction. As a result, in rejecting the FRY’s request for provisional measures by twelve votes to three, the Court concluded that it “manifestly lacked jurisdiction to entertain Yugoslavia’s Application”.

HAMDAN VS RUMSFELD 548 U.S. 557, 29 June 2006 FACTS: Hamdan was charged with conspiracy to commit offences triable by a military commission and was granted Habeas Corpus to dispute this charge. It is alleged that Hamdan was engaged in actions in preparation of the September 11, 2001 attacks against the United States. Militia forces in Afghanistan that were fighting the Taliban captured Hamdan and turned him over to the U.S. Military in 2002. He was transferred to Guantanamo Bay, a United States occupied Military base. After a year of being detained without any charges being brought against him, President Bush declared that he had committed acts triable by a military commission. He was charged with one count of conspiracy to commit offenses triable by the commission. This commission is created by military necessity, not by statute or constitutional power. This commission has a presiding officer and at least three other members. The accused is afforded military counsel, and a copy of the charges against him. This hearing may be conducted outside the presence of the accused for the accused does not have a right to see all evidence or hear all witness statement against him for purposes of national security. After being tried and convicted of conspiracy, Hamdan apply for a writ of Habeas Corpus stating he deserved all the constitutional rights afforded to him at trial, the writ was granted. ISSUE: Whether Hamdan committed a crime triable by military commissions and such commission is constitutional. RULING: No. The President at a time of war has the power to try and punish crimes against the laws of nations. This is the constitutional provision used to show that military commission tribunals are legal. However, this court concluded that only certain circumstances allow for offense to be triable in a military commission. Those offenses are; 1) in place of civilian courts when marital law has been declared; 2) temporary military government in occupied territory or in lands where there is no government to try cases; and 3) when the crime is an incident to the conduct of war which violate the laws of war. The court states that only the 3rd type applies, however the charge of

conspiracy is not an incident to the conduct of war. Incidents of war are accusations of actual conduct, not the attempt or planning of such conduct. Inchoate criminal charges belong in a federal court or court martial proceeding. Secondly this commission violates not only constitutional rights afforded an individual, but also rules established by the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. A military commission tribunal must have rules and regulations that do not fall short of at least a military court marshal proceeding. The lack of presence and ability to see the evidence and witness before you is not constitutional. Therefore, Hamdan should not be tried in front of this commission. This court reversed the commission’s charges of conspiracy.