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Secretary of Justice vs. Lantion, G.R. No.

139465, January 18, 2000


Facts:
Department of Justice (DOJ) received from the Department of Foreign Affairs U.S. a request FACTS:
for the extradition of private respondent Mark Jimenez to the U.S. for violation of Conspiracy to Commit Secretary Of Justice Franklin Drilon, representing the Government of the Republic of the
Offense, Attempt to Evade Tax, Fraud by Wire, Radio, or Television, False Statement, and Election Philippines, signed in Manila the extradition Treaty Between the Government of the Philippines and the
Contribution in Name of Another. Government of the U.S.A. The Philippine Senate ratified the said Treaty.
During the evaluation process of the extradition, the private respondent, requested the On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S Note
petitioner, Secretary of Justice, to furnish him copies of the extradition request from the U.S. government, Verbale No. 0522 containing a request for the extradition of private respondent Mark Jiminez to the
that he be given ample time to comment regarding the extradition request against him after he shall have United States.
received copies of the requested papers, and to suspend the proceeding in the meantime. On the same day petitioner designate and authorizing a panel of attorneys to take charge of and
The petitioner, Secretary of Justice denied the request in consistent with Art. 7 of the RP US to handle the case. Pending evaluation of the aforestated extradition documents, Mark Jiminez through
Extradition Treaty which provides that the Philippine Government must represent the interests of the U.S. counsel, wrote a letter to Justice Secretary requesting copies of the official extradition request from the
in any proceedings arising from an extradition request. U.S Government and that he be given ample time to comment on the request after he shall have received
The private respondent filed with the RTC against the petitioner Hon. Ralph Lantion (presiding copies of the requested papers but the petitioner denied the request for the consistency of Article 7 of the
judge RTC Manila Branch 25) a mandamus, a certiorari, and a prohibition to enjoin the petitioner, the RP-US Extradition Treaty stated in Article 7 that the Philippine Government must present the interests of
Secretary of DFA, and NBI from performing any acts directed to the extradition of the respondent, for it the United States in any proceedings arising out of a request for extradition.
will be a deprivation of his rights to due process of notice and hearing.
Issue:
Issue: Whether or not to uphold a citizens basic due process rights or the governments ironclad
Whether or not the respondent Mark Jimenez is entitled to the basic rights of due process over duties under a treaty.
the governments duties under a treaty?
Ruling:
Ruling: Petition dismissed. The human rights of person, whether citizen or alien , and the rights of the
Yes. According to the principle of Pacta Sunt Servanda, parties to a treaty should keep their accused guaranteed in our Constitution should take precedence over treaty rights claimed by a contracting
agreements to good faith. However, Sec. 2 of Art. 2 of the Constitution (incorporation clause) provides state. The duties of the government to the individual deserve preferential consideration when they collide
that the Philippines adopts the generally accepted principles of international law as part of the law of the with its treaty obligations to the government of another state. This is so although we recognize treaties as a
land. source of binding obligations under generally accepted principles of international law incorporated in our
Incorporation clause is applied when there is a conflict between the international law and Constitution as part of the law of the land.
local/municipal law. However, jurisprudence dictates that municipal law should be upheld by the The doctrine of incorporation is applied whenever municipal tribunals are confronted with
municipal court. situation in which there appears to be a conflict between a rule of international law and the provision of
The fact that the international law has been made part of the law of the land does not imply the the constitution or statute of the local state.
primacy of international law over national or municipal law in the municipal sphere. Rules of international Petitioner (Secretary of Justice) is ordered to furnish Mark Jimenez copies of the extradition
law are given an equal standing with, but not superior to, the national legislative enactment. The principle request and its supporting papers, and to grant him (Mark Jimenez) a reasonable period within which to
of Lex Posterior Derogat Priori clarifies that a treaty may repeal a statute and a statute may repeal a file his comment with supporting evidence.
treaty. And the Republic of the Philippines considers its Constitution as the highest law of the land, Under the Doctrine of Incorporation, rules of international law form part of the law of the land
therefore, both statutes and treaty may be invalidated if they are conflict with the constitution. and no further legislative action is needed to make such rules applicable in the domestic sphere.
The doctrine of incorporation is applied whenever municipal tribunals are confronted with
situations in which there appears to be a conflict between a rule of international law and the provisions of
the constitution or statute of the local state.
Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be
presumed that municipal law was enacted with proper regard for the generally accepted principles of
international law in observance of the incorporation clause in the above cited constitutional provision.
In a situation, however, where the conflict is irreconcilable and a choice has to be made
between a rule of international law and a municipal law, jurisprudence dictates that municipal law should
be upheld by the municipal courts, for the reason that such courts are organs of municipal law and are
accordingly bound by it in all circumstances.
The fact that international law has been made part of the law of the land does not pertain to or
imply the primacy of international law over national or municipal law in the municipal sphere. The
doctrine of incorporation, as applied in most countries, decrees that rules of international law are given
equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex
posterior derogate priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In
states where the Constitution is the highest law of the land, such as the Republic of the Philippines, both
statutes and treaties may be invalidated if they are in conflict with the constitution
which mandate the pursuit of a trade policy that serves the general welfare and utilizes all forms and
Taada v. Angara, G.R. No. 118295, May 2, 1997 arrangements of exchange on the basis of equality and reciprocity and the promotion of industries which
Facts: are competitive in both domestic and foreign markets, thereby justifying its acceptance of said treaty. So
Petitioners Senators Taada, et al. questioned the constitutionality of the concurrence by the too, the alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by
Philippine Senate of the Presidents ratification of the international Agreement establishing the World the adoption of the generally accepted principles of international law as part of the law of the land and the
Trade Organization (WTO). They argued that the WTO Agreement violates the mandate of the 1987 adherence of the Constitution to the policy of cooperation and amity with all nations.
Constitution to develop a self-reliant and independent national economy effectively controlled by That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent
Filipinos . . . (to) give preference to qualified Filipinos (and to) promote the preferential use of Filipino to the WTO Agreement thereby making it a part of the law of the land is a legitimate exercise of its
labor, domestic materials and locally produced goods. Further, they contended that the national sovereign duty and power. We find no patent and gross arbitrariness or despotism by reason of passion
treatment and parity provisions of the WTO Agreement place nationals and products of member or personal hostility in such exercise. It is not impossible to surmise that this Court, or at least some of its
countries on the same footing as Filipinos and local products, in contravention of the Filipino First members, may even agree with petitioners that it is more advantageous to the national interest to strike
policy of our Constitution, and render meaningless the phrase effectively controlled by Filipinos. down Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of discretion to the
Senate and to nullify its decision. To do so would constitute grave abuse in the exercise of our own
ISSUE: judicial power and duty. Ineludibly, what the Senate did was a valid exercise of its authority. As to whether
Does the 1987 Constitution prohibit our country from participating in worldwide trade such exercise was wise, beneficial or viable is outside the realm of judicial inquiry and review. That is a
liberalization and economic globalization and from integrating into a global economy that is liberalized, matter between the elected policy makers and the people. As to whether the nation should join the
deregulated and privatized? worldwide march toward trade liberalization and economic globalization is a matter that our people should
determine in electing their policy makers. After all, the WTO Agreement allows withdrawal of
Ruling: membership, should this be the political desire of a member.
[The Court DISMISSED the petition. It sustained the concurrence of the Philippine Senate of the
Presidents ratification of the Agreement establishing the WTO.]
NO, the 1987 Constitution DOES NOT prohibit our country from participating in worldwide
trade liberalization and economic globalization and from integrating into a global economy that is
liberalized, deregulated and privatized.
There are enough balancing provisions in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement.
[W]hile the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the
bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair. In other words, the Constitution did not intend to pursue an
isolationist policy. It did not shut out foreign investments, goods and services in the development of the
Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit them either. In fact, it allows an exchange on
the basis of equality and reciprocity, frowning only on foreign competition that is unfair.
[T]he constitutional policy of a self-reliant and independent national economy does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates neither
economic seclusion nor mendicancy in the international community. As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly aware of
overdependence on external assistance for even its most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding mendicancy in the international community. Independence
refers to the freedom from undue foreign control of the national economy, especially in such strategic
industries as in the development of natural resources and public utilities.
The WTO reliance on most favored nation, national treatment, and trade without
discrimination cannot be struck down as unconstitutional as in fact they are rules of equality and
reciprocity that apply to all WTO members. Aside from envisioning a trade policy based on equality and
reciprocity, the fundamental law encourages industries that are competitive in both domestic and foreign
markets, thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in
favor of the gradual development of robust industries that can compete with the best in the foreign
markets. Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to
compete internationally. And given a free trade environment, Filipino entrepreneurs and managers in
Hongkong have demonstrated the Filipino capacity to grow and to prosper against the best offered under a
policy of laissez faire.
It is true, as alleged by petitioners, that broad constitutional principles require the State to
develop an independent national economy effectively controlled by Filipinos; and to protect and/or prefer
Filipino labor, products, domestic materials and locally produced goods. But it is equally true that such
principles while serving as judicial and legislative guides are not in themselves sources of causes of
action. Moreover, there are other equally fundamental constitutional principles relied upon by the Senate
Kuroda vs. Jalandoni, G.R. L-2662, March 26, 1949
Moran, C.J. Mijares v. Ranada, GR No. 139325, April 12, 2005
Facts: Facts:
1. Petitioner Sheginori Kuroda was the former Lt. General of the Japanese Army and commanding general Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom suffered human rights
of the Japanese forces during the occupation (WWII) in the country. He was tried before the Philippine violations during the Marcos era, obtained a Final Judgment in their favor against the Estate of the late
Military Commission for War Crimes and other atrocities committed against military and civilians. The Ferdinand Marcos amounting to roughly 1.9 Billion U.S. Dollars in compensatory and exemplary
military commission was establish under Executive Order 68. damages for tortuous violations of international law in the US District Court of Hawaii. This Final
2. Petitioner assails the validity of EO 68 arguing it is unconstitutional and hence the military commission Judgment was affirmed by the US Court of Appeals.
did not have the jurisdiction to try him on the following grounds: As a consequence, Petitioners filed a Complaint with the Regional Trial Court of Makati for
- that the Philippines is not a signatory to the Hague Convention (War Crimes) the enforcement of the Final Judgment, paying Php 410.00 as docket and filing fees based on Rule 141,
3. Petitioner likewise assails that the US is not a party of interest in the case hence the 2 US prosecutors Section 7(b) where the value of the subject matter is incapable of pecuniary estimation. The Estate of
cannot practice law in the Philippines. Marcos however, filed a MTD alleging the non-payment of the correct filing fees. The Regional Trial
Issue: Court of Makati dismissed the Complaint stating that the subject matter was capable of pecuniary
Whether or not EO 68 is constitutional thus the military tribunal jurisdiction is valid estimation as it involved a judgment rendered by a foreign court ordering the payment of a definite sum of
HELD: money allowing for the easy determination of the value of the foreign judgment. As such, the proper filing
1. EO 68 is constitutional hence the tribunal has jurisdiction to try Kuroda. EO 68 was enacted by the fee was 472 Million Philippine pesos, which Petitioners had not paid.
President and was in accordance with Sec. 3, Art. 2 of Constitution which renounces war as an instrument
of national policy. Hence it is in accordance with generally accepted principles of international law Issue:
including the Hague Convention and Geneva Convention, and other international jurisprudence Whether or not the amount paid by the Petitioners is the proper filing fee?
established by the UN, including the principle that all persons (military or civilian) guilty of plan,
preparing, waging a war of aggression and other offenses in violation of laws and customs of war. The Ruling:
Philippines may not be a signatory to the 2 conventions at that time but the rules and regulations of both Yes, but on a different basisamount merely corresponds to the same amount required for
are wholly based on the generally accepted principles of international law. They were accepted even by other actions not involving property. The Regional Trial Court of Makati erred in concluding that the
the 2 belligerent nations (US and Japan) filing fee should be computed on the basis of the total sum claimed or the stated value of the property in
2. As to the participation of the 2 US prosecutors in the case, the US is a party of interest because its litigation. The Petitioners Complaint was lodged against the Estate of Marcos but it is clearly based on a
country and people have greatly aggrieved by the crimes which petitioner was being charged of. judgment, the Final Judgment of the US District Court. However, the Petitioners erred in stating that the
3. Moreover, the Phil. Military Commission is a special military tribunal and rules as to parties and Final Judgment is incapable of pecuniary estimation because it is so capable. On this point, Petitioners
representation are not governed by the rules of court but the provision of this special law. state that this might lead to an instance wherein a first level court (MTC, MeTC, etc.) would have
jurisdiction to enforce a foreign judgment. Under Batasang Pambansa 129, such courts are not vested with
Ichong vs. Hernandez, 101 Phil 155 such jurisdiction. Section 33 of Batasang Pambansa 129 refers to instances wherein the cause of action or
Facts: subject matter pertains to an assertion of rights over property or a sum of money. But here, the subject
The Congress of the Philippines enacted the act which nationalizes the retail trade business, matter is the foreign judgment itself. Section 16 of Batasang Pambansa 129 reveals that the complaint for
Republic Act No. 1180 entitled An Act to Regulate the Retail Business, prohibiting aliens in general to enforcement of judgment even if capable of pecuniary estimation would fall under the jurisdiction of the
engage in retail trade in our country. Regional Trial Courts. Thus, the Complaint to enforce the US District Court judgment is one capable of
pecuniary estimations but at the same time, it is also an action based on judgment against an estate, thus
Petitioner, for and in his own behalf and on behalf of other alien residents, corporations and
placing it beyond the ambit of Section 7(a) of Rule 141. What governs the proper computation of the filing
partnerships adversely affected by the provisions of RA No. 1180, brought this action to obtain a judicial fees over Complaints for the enforcement of foreign judgments is Section7(b)(3), involving other actions
declaration that said Act is unconstitutional. not involving property.
Issue:
Whether Congress in enacting R.A. No. 1180 violated the UN Charter, the UN Declaration of
Human Rights and the Philippine-Chinese Treaty of Amity.
Held:
The UN Charter imposes no strict or legal obligations regarding the rights and freedom of their
subjects, and the Declaration of Human Rights contains nothing more than a mere recommendation, or a
common standard of achievement for all peoples and all nations.
The Treaty of Amity between the Republic of the Philippines and the Republic of China
guarantees equality of treatment to the Chinese nationals upon the same terms as the nationals of any
other country. But the nationals of China are not discriminated against because nationals of all other
countries, except those of the United States, who are granted special rights by the Constitution, are all
prohibited from engaging in the retail trade.
But even supposing that the law infringes upon the said treaty, the treaty is always subject to
qualification or amendment by a subsequent law, and the same may never curtail or restrict the scope of
the police power of the State.
behavior is obligatory, is what makes practice an international rule. Without it, practice is not law.
(Pharmaceutical & Health Care Assn. of the Phil. v. Health Secretary Duque, et al., G. R. No. 173034,
October 9, 2007).
ARTICLE II Q What is a soft law? Is it an international law? Explain.
International law; how it becomes part of domestic law. ANS: Soft law is an expression of non-binding norms, principles and practices that influence state
Q How may international law become a part of domestic law? Explain. behavior. (David Fidler, Development Involving SARS, International Law & Infections Disease Control at
ANS: Under the 1987 Constitution, international law can become part of the sphere of domestic law the Fifty-Six Meeting of the World Health Assembly, June 2003, ASIL; Pharmaceutical & Health Care
either by transformation or incorporation. The transformation method requires that an international law be Assn. of the Phils. v. Health Secretary Duque, et al., G.R. No. 173034, October 9, 2007). It does not fall
transformed into a domestic law through a constitutional mechanism such as local legislation. The under the international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court
incorporation method applies when, by mere constitutional declaration, international law is deemed to of Justice.
have the force of domestic law.
Treaties become part of the law of the land through transformation pursuant to Article VII, Section Q Give examples of soft law.
21 of the Constitution which provides that no treaty or international agreement shall be valid and ANS: Certain declarations and resolutions of the UN General Assembly fall under this category. (Louis
effective unless concurred in by at least two-thirds of all the members of the Senate. Thus, treaties or Henkins, et al., International Law, Cases and Materials, 2 nd Ed.). The UN Declaration of Human Rights is
conventional international law must go through a process prescribed by the Constitution for it to be an example. This was applied in Government of Hongkong Special Administrative Region v. Olalia;
transformed into municipal law that can be applied to domestic conflicts. (Pharmaceutical & Health Care Mejoff v. Director of Prisons; 90 Phil. 70 (1951); Mijares v. Ranada; Shangri-la International Hotel
Assn. of the Phil. v. Health Secretary Duque, et al., G.R. No. 173034, October 19, 2007). Management Ltd. v. Developers Group of Companies Inc., G.R. No. 159938, March 31, 2006, 486 SCRA
405).
Q May generally accepted principles of international law form part of the law of the land even if they It is resorted to in order to reflect and respond to the changing needs and demands of constituents
do not derive from treaty obligations? Explain. of certain international organizations like the WHO.
ANS: Yes. Generally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The
classical formulation in international law sees those customary rules accepted as binding result from the
combination of two elements: the established, widespread, and consistent practice on the part of States;
and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity).
Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence
of a rule of law requiring it. (Mijares v. Ranada, G.R. No. 139325, April 12, 2005, 455 SCRA 397).

Q State the concept of the term generally accepted principles of international law and give
examples.
ANS: Generally accepted principles of international law refers to norms of general or customary
international law which are binding on all states, i.e., renunciation of war as an instrument of national
policy, the principle of sovereign immunity, a persons right to life, liberty and due process, and pacta sunt
servanda, among others. The concept of generally accepted principles of law has also been depicted in
this wise:
Some legal scholars and judges upon certain general principles of law as a primary source of
international law because they have the character of jus rationale and are valid through all kinds of
human societies. (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966,
I.C.J. 296). OConell holds that certain principles are part of international law because they are basic to
legal systems generally and hence part of the jus gentium. These principles, he believes, are established
by a process of reasoning based on the common identity of all legal systems. If there should be doubt or
disagreement, one must look to state practice and determine whether the municipal law principle provides
a just and acceptable solution. (Pharmaceutical & Health Care Assn. of the Phil. v. Sec. of Health Duque,
et al., G.R. No. 173034, October 9, 2007).

Q What is customary international law? Explain.


ANS: Custom or customary international law means a general and consistent practice of states followed
by them from a sense of legal obligation (opinion juris). This statement contains the two basic elements
of custom: the material factor, that is, how states behave, and the psychological or subjective factor, that
is, why they behave the way they do.
The initial factor for determining the existence of custom is the actual behavior of states. This
includes several elements: duration, consistency, and generality of the practice of states.
The required duration can be either short or long.
Duration therefore is not the most important element. More important is the consistency and the
generality of the practice.
Once the existence of state practice has been established it becomes necessary to determine why
states behave the way they do. Do states behave the way they do because they consider it obligatory to
behave thus or do they do it only as a matter of courtesy? Opinio juris or the belief that a certain form of
EN BANC
August 15, 1961 Missouri v. Holland
IN RE: PETITION OF ARTURO EFREN GARCIA for admission to the Philippine Bar without Citation. 252 U.S. 416, 1920)
taking the examination. ARTURO EFREN GARCIA, petitioner. Brief Fact Summary. Missouri wanted to prevent US game warden Holland from enforcing Migratory
RES OLUTIO N Bird Treaty Act of 1918 (the Treaty). It claimed the Treaty infringed on Missouris 10th Amendment right
BARRERA, J.: against federal intrusion and that Missouri has a pecuniary interest as owners of the birds within its
Arturo E. Garcia has applied for admission to the practice of law in the Philippines without submitting to borders. The District Court dismissed the suit and the state appealed.
the required bar examinations. In his verified petition, he avers, among others, that he is a Filipino citizen Synopsis of Rule of Law. Treaties take precedence over any conflicting state law (regardless of whether
born in Bacolor City, Province of Negros Occidental, of Filipino parentage; that he had taken and finished the treaty came before or after the enactment of the state law). A federal law can trump an earlier rule in
in Spain, the course of "Bachillerato Superior"; that he was approved, selected and qualified by the treaty if it is clear that it is meant to do so, or the provisions cannot be fairly reconciled. If the treaty
"Instituto de Cervantes" for admission to the Central University of Madrid where he studied and finished comes later it can trump federal law even if federal law is inconsistent. The last will of the sovereign
the law course graduating there as "Licenciado En Derecho"; that thereafter he was allowed to practice the controls.
law profession in Spain; and that under the provision of the Treaty of Academic Degrees and the Exercise Facts. In 1916, the US and Great Britain signed a treaty protecting migratory birds that were important as
of Professions between the Republic of the Philippines and the Spanish state, he is entitled to practice the a source of food and in controlling harmful insects. The birds traveled through Canada and parts of the US
law profession in the Philippines without submitting to the required bar examinations. but were in danger of extermination. The Migratory Bird Act was passed to carry out the terms of the
After due consideration, the Court resolved to deny the petition on the following grounds: treaty. Missouri objected because an earlier act of Congress that attempted, by itself and not in pursuance
(1) the provisions of the Treaty on Academic Degrees and the Exercise of Professions between the of a treaty, to regulate killing migratory birds within the states was held unconstitutional in district court.
Republic of the Philippines and the Spanish State can not be invoked by applicant. Under Article 11 Missouri argued that because Congress had no power to pass this law without the treaty, they should gain
thereof; power because they are enforcing a treaty.
The Nationals of each of the two countries who shall have obtained recognition of the validity of their Issue. Can Congress pass legislation to enforce a treaty which it could not pass without the treaty?
academic degrees by virtue of the stipulations of this Treaty, can practice their professions within the Held. Justice Holmes opinion: Yes. District Court judgment affirmed. The states claim of sovereign
territory of the Other, . . .. (Emphasis supplied). power over possessions is not stronger than the authority a treaty is granted under the Constitution. The
from which it could clearly be discerned that said Treaty was intended to govern Filipino citizens desiring birds are not in the possession of anyone and possession is the beginning of ownership. Under Article 6,
to practice their profession in Spain, and the citizens of Spain desiring to practice their professions in the treaties, the Constitution, and laws of the US made in pursuance thereof are the supreme laws of the land.
Philippines. Applicant is a Filipino citizen desiring to practice the legal profession in the Philippines. He is If the treaty is valid then there is no dispute about the validity of the statute that is to execute the treaty.
therefore subject to the laws of his own country and is not entitled to the privileges extended to Spanish The national interest is keeping migratory birds is high because they are a food supply and also protect
nationals desiring to practice in the Philippines. forests and corps. The birds are only transitory within Missouri and have no permanent habitat there.
(2) Article I of the Treaty, in its pertinent part, provides . Discussion. What if the US made a treaty with Spain that said it is a crime punishable to publish criticisms
The nationals of both countries who shall have obtained degree or diplomas to practice the liberal of either government? Missouri let Congress bypass the 10th Amendment. Would such a situation allow
professions in either of the Contracting States, issued by competent national authorities, shall be deemed Congress to bypass the 1st as well? Holmes might say that freedom of speech is specific in the
competent to exercise said professions in the territory of the Other, subject to the laws and regulations of Constitution. Migratory birds do not appear anywhere in the Constitution. Protecting birds would be in the
the latter. . . .. publics interest whereas restricting freedom of speech would be contrary to that interest.
It is clear, therefore, that the privileges provided in the Treaty invoked by the applicant are made expressly
subject to the laws and regulations of the contracting State in whose territory it is desired to exercise the
legal profession; and Section 1 of Rule 127, in connection with Sections 2,9, and 16 thereof, which have
the force of law, require that before anyone can practice the legal profession in the Philippine he must first
successfully pass the required bar examinations; and
(3) The aforementioned Treaty, concluded between the Republic of the Philippines and the Spanish State
could not have been intended to modify the laws and regulations governing admission to the practice of
law in the Philippines, for the reason that the Executive Department may not encroach upon the
constitutional prerogative of the Supreme Court to promulgate rules for admission to the practice of law in
the Philippines, the lower to repeal, alter or supplement such rules being reserved only to the Congress of
the Philippines. (See Sec. 13, Art VIII, Phil. Constitution).
authoritative effect by the courts. Foster v. Neilson, 2 Pet. 253, 314; Head Money Cases, 112
U.S. 580, 598; Chew Heong v. United States, 112 U.S. 536, 540; Whitney v. Robertson, 124
U.S. 190, 194; Maiorano v. Baltimore & Ohio R.R. Co., 213 U.S. 268, 272.
The purpose of the ordinance complained of is to regulate, not to prohibit, the business of
pawnbroker. But it makes it impossible for aliens to carry on the business. It need not be
considered whether the State, if it sees fit, may forbid and destroy the business generally. Such
Asakura v. City of Seattle, 265 U.S. 332 (1924) a law would apply equally to aliens and citizens, and no question of conflict with the treaty
would arise. The grievance here alleged is that plaintiff in error, in violation of the treaty, is
Mr. Justice BUTLER delivered the opinion of the Court. denied equal opportunity.
Plaintiff in error is a subject of the Emperor of Japan, and, since 1904, has resided in Seattle, It remains to be considered whether the business of pawnbroker is "trade" within the meaning
Washington. Since July, 1915, he has been engaged in business there as a pawnbroker. The of the treaty. Treaties are to be construed in a broad and liberal spirit, and, when two
city passed an ordinance, which took effect July 2, 1921, regulating the business of constructions are possible, one restrictive of rights that may be claimed under it and the other
pawnbroker and repealing former ordinances on the same subject. It makes it unlawful for any favorable to them, the latter is to be preferred. Hauenstein v. Lynham, 100 U.S. 483, 487;
person to engage in the business unless he shall have a license, and the ordinance provides Geofroy v. Riggs, supra, 271; Tucker v. Alexandroff, 183 U.S. 424, 437. The ordinance defines
"that no such license shall be granted unless the applicant be a citizen of the United States." "pawnbroker" to "mean and include every person whose business or occupation [it] is to take
Violations of the ordinance are punishable by fine or imprisonment or both. Plaintiff in error and receive by way of pledge, pawn or exchange, goods, wares or merchandise, or any kind of
brought this suit in the Superior Court of King County, Washington, against the city, its personal property whatever, for the repayment or security of any money loaned thereon, or to
Comptroller and its Chief of Police to restrain them from enforcing the ordinance against him. loan money on deposit of personal property"; and defines "pawnshop" to "mean and include
He attacked the ordinance on the ground that it violates the treaty between the United States every place at which the business of pawnbroker is carried on." The language of the treaty is
and the Empire of Japan, proclaimed April 5, 1911 (37 Stat. 1504); violates the constitution of comprehensive. The phrase "to carry on trade" is broad. That it is not to be given a restricted
the State of Washington, and also the due process and equal protection clauses of the meaning is plain. The clauses "to own or lease . . . shops, . . . to lease land for . . . commercial
Fourteenth Amendment of the Constitution of the United States.He declared his willingness to purposes, and generally to do anything incident to or necessary for trade," and "shall receive . .
comply with any valid ordinance relating to the business of pawnbroker. It was shown that he . the most constant protection and security for their . . . property . . ." all go to show the
had about $5,000 invested in his business, which would be broken up and destroyed by the intention of the parties that the citizens or subjects to either shall have liberty in the territory of
enforcement of the ordinance. The Superior Court granted the relief prayed. On appeal, the the other to engage in all kinds and classes of business that are or reasonably may be embraced
Supreme Court of the State held the ordinance valid and reversed the decree. The case is here within the meaning of the word "trade" as used in the treaty.
on writ of error under 237 of the Judicial Code (Comp. St. 1214). By definition contained in the ordinance, pawnbrokers are regarded as carrying on a
Does the ordinance violate the treaty? Plaintiff in error invokes and relies upon the following "business." A feature of it is the lending of money upon the pledge or pawn of personal
provisions: "The citizens or subjects of each of the High Contracting Parties shall have liberty property which, in case of default, may be sold to pay the debt. While the amounts of the loans
to enter, travel and reside in the territories of the other to carry on trade, wholesale and retail, made in that business are relatively small and the character of property pledged as security is
to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of different, the transactions are similar to loans made by banks on collateral security. The
their choice, to lease land for residential and commercial purposes, and generally to do business of lending money on portable securities has been carried on for centuries. In most of
anything incident to or necessary for trade upon the same terms as native citizens or subjects, the countries of Europe, the pledge system is carried on by governmental agencies; in some of
submitting themselves to the laws and regulations there established. . . . The citizens or them the business is also carried on by private parties. In England, as in the United States, the
subjects of each . . . shall receive, in the territories of the other, the most constant protection private pledge system prevails. In this country, the practice of pledging personal property for
and security for their persons and property, . . . ." loans dates back to early colonial times, and pawnshops have been regulated by state laws for
A treaty made under the authority of the United States "shall be the supreme law of the land; more than a century. We have found no state legislation abolishing or forbidding the business.
and the judges in every State shall be bound thereby, any thing in the constitution or laws of Most, if not all, of the States provide for licensing pawnbrokers and authorize regulation by
any State to the contrary notwithstanding." Constitution, Art. VI, 2. municipalities. While regulation has been found necessary in the public interest, the business
The treaty-making power of the United States is not limited by any express provision of the is not on that account to be excluded from the trade and commerce referred to in the treaty.
Constitution, and, though it does not extend "so far as to authorize what the Constitution Many worthy occupations and lines of legitimate business are regulated by state and federal
forbids," it does extend to all proper subjects of negotiation between our government and other laws for the protection of the public against fraudulent and dishonest practices. There is
nations. Geofroy v. Riggs, 133 U.S. 258, 266, 267; In re Ross, 140 U.S. 453, 463; Missouri v. nothing in the character of the business of pawnbroker which requires it to be excluded from
Holland, 252 U.S. 416. The treaty was made to strengthen friendly relations between the two the field covered by the above quoted provision, and it must be held that such business is
nations. As to the things covered by it, the provision quoted establishes the rule of equality "trade" within the meaning of the treaty. The ordinance violates the treaty. The question in the
between Japanese subjects while in this country and native citizens. Treaties for the protection present case relates solely to Japanese subjects who have been admitted to this country. We do
of citizens of one country residing in the territory of another are numerous,[120 U.S. 678, 682- not pass upon the right of admission or the construction of the treaty in this respect, as that
683. The rule of equality established by it cannot be rendered nugatory in any part of the question is not before us and would require consideration of other matters with which it is not
United States by municipal ordinances or state laws. It stands on the same footing of now necessary to deal. We need not consider other grounds upon which the ordinance is
supremacy as do the provisions of the Constitution and laws of the United States. It operates attacked.
of itself without the aid of any legislation, state or national; and it will be applied and given Decrease reversed.
Polites v. The Commonwealth (1945) 70 CLR 60
The reasoning of the High Court of Justiciary, Scotland in Mortensen v. Peters (above) was followed by
the High Court of Australia in Polites v. The Commonwealth.
Polites concerned the construction of the National Security Act 1939 (Com) and the National Security
(Aliens Service) Regulations made under that Act. By way of background, in 1940, immediately after the
fall of France to invading German forces and in circumstances of national emergency in Australia, the
Commonwealth parliament amended the National Security Act 1939 (Com) to authorise the making of
regulations calling-up aliens resident in Australia for service in the Australian armed forces. Mr Speros
Polites, a Greek national aged 29 resident in Australia, challenged the validity of the Regulations. Mr
Mortensen v. Peters, 14 Scots LTR 227, 1906 Polites contended that the Regulations should not be construed in a manner inconsistent with the rule of
As a rule of statutory construction, the legislature is presumed to make law in a manner consistent with customary international law that, during armed conflict, a state may not require resident aliens to serve in
customary international law. However, in accordance with the principle of parliamentary sovereignty, its armed forces. Although the High Court of Australia acknowledged the existence of this rule of
the clear language of a statute must be given effect even although the statute may operate in a manner customary international law, the Court held that parliament, in amending the National Security Act 1939
inconsistent with customary international law. (Com), clearly had intended resident aliens liable to be called-up for service in the Australian armed forces
and that the Regulations prevailed over customary international law even although this carried the risk of
Background international complications (Latham CJ at p 69) including the obvious risk of the Commonwealth
The defendant (appellant), Emmanuel Mortensen, a Danish citizen, was the master of the Norwegian having no ground of objection if Australians who happen to be in foreign countries are conscripted for
steam trawler Niobe. In the sheriff court at Dornoch, Scotland, the defendant was convicted under the military service there. (Latham CJ at p 73)
Herring Fishery (Scotland) Act 1889 (UK) of the offence of otter trawling in a prohibited part of the In reaching this conclusion, the High Court of Australia accepted as well established by many
Moray Firth (an inlet of the North Sea on the north east coast of Scotland) at a place more than three miles authorities (Latham CJ at p 68), that there is a general rule of construction that, unless the contrary
seaward from the low water mark. intention is clear, it is presumed parliament did not intend to violate customary international law. Dixon J
On appeal, the question of law was whether the defendant was subject to the jurisdiction of the sheriff (at p 77) stated this general rule as follows:
court on account of the fact that the offence was committed on the high seas according to customary It is a rule of construction that, unless a contrary intention appear, general words occurring in a statute are
international law. to be read subject to the established rules of international law and not as intended to apply to persons or
subjects which, according to those rules, a national law of the kind in question ought not to include.
Disposition However, as Latham CJ observed (at p 69): [A]ll the authorities in English law also recognize that courts
As a matter of statutory construction, the offence committed by the defendant was at a place to which the are bound by the statute law of their country, even if that law should violate a rule of international law .
Herring Fishery (Scotland) Act 1889 (UK) applied. Accordingly, the defendant was subject to the It must be held that legislation otherwise within the power of the Commonwealth Parliament does not
jurisdiction of the sheriff court and had properly been convicted. In the present case, the presumption that become invalid because it conflicts with a rule of international law, though every effort should be made to
the legislature intended to make law in a manner consistent construe Commonwealth statutes so as to avoid breaches of international law and of international comity.
with customary international law had to give way to the clear language of the statute. The bottom line in Polites: the National Security (Aliens Service) Regulations were valid and Mr Polites
was liable to be called-up for service in the Australian armed forces.
Judgment extract
Lord Dunedin (Lord Justice-General). I apprehend that the question is one of construction and of
construction only. In this court we have nothing to do with the question of whether the legislature has, or
has not done, what foreign powers may consider usurpation in a question with them. For us an act of
parliament duly passed by lords and commons and assented to by the king, is supreme, and we are bound Facts:
to give effect to its terms. The Danish master of a Norwegian steam-trawler was prosecuted for using a particular method of
LORD KYLLACHY. [I]t may probably be conceded that there is always a certain presumption against fishing in the Moray Firth. He argued that, although the statute banning the method would have caught a
the legislature of a country asserting or assuming the existence of a territorial jurisdiction going clearly British fisherman, it should be construed as impliedly excepting all foreigners fishing from foreign vessels
beyond limits established by the common consent of nations - that is to say, by international law. I outside the territorial jurisdiction of the British Crown.
think that is acknowledged. But then it is only a presumption; and, as such, it must always give way to the
language used if it is clear . Held:
Now it must, I think, be conceded that the language of the enactment here in question is fairly express - The defence failed. Lord Salvesen said that it could scarcely be supposed that the British Parliament
express, that is to say, to the effect of making an unlimited and unqualified prohibition, applying to the should pass legislation placing British fishermen under a disability which did not extend to foreigners: I
whole area [of the Moray Firth] specified, and affecting everybody - whether British subjects or think, it was a just observation of the Solicitor General that, if legislation of this nature had been proposed,
foreigners. and the words inserted which the Dean of Faculty maintained were implied, it would never have been
Appeal dismissed submitted by a responsible minister or have received the approval of Parliament.

Aftermath
In a note to the above case, Harris, Cases and Materials on International Law, 7th edn, 2010 observed (at p
75):
Shortly after Mortensen v. Peters, a number of other successful prosecutions of Norwegian masters of
foreign ships occurred. In some cases the convicted men went to prison rather than pay a fine. They were
released, however, after protests by Norway. In March 1907, a Foreign Office spokesman stated in the
House of Commons: The Act of parliament as interpreted by the High Court of Justiciary is in conflict
with international law. (Hansard, HC, Vol 170, col 472 (March 4, 1907))
Brief fact: A dispute arose between the United States ship Berkshire and the British steamer Scotia. The
Berkshire was struck by the Scotia because of the Berkshires failure to display coloured lights according
to customary law of the sea
Issue: Was Berkshire in violation of customary International Law in failing to display colored lights?
Decision: It was held that, when we find such rules of navigations in British law as well as 30 other
national laws of commercial states including those shipping in Atlantic Ocean, we are required to regard
them as laws of the sea which were in effect during this collision
Reasoning: This is not giving laws of any nations authority outside of their national sovereignty. It is not
treating them as general maritime laws, but it is recognition of the historical fact that by common consent
West Rand Central Gold Mining Co Ltd v. R of mankind, these rules have been given as a general obligation.
2 Kings Bench 391, 1905
In principle, customary international law will be applied in the administration of municipal law. The Over The Top, (D.CONN. 1925)
However, a rule of customary international law requires the common consent of civilized nations. In Key passages from this case (2)
this regard, the mere opinions of jurists, however eminent or learned, are not in themselves sufficient. I. If, however, the court has no option to refuse the enforcement of legislation in contravention
Background of principles of international law, it does not follow that in construing the terms and provisions
West Rand Central Gold Mining Co Ltd (the company) was an English company which owned and of a statute it may not assume that such principles were on the national conscience and that the
operated a goldmine in the Transvaal, part of the South African Republic (the Republic). In October congressional act did not deliberately intend to infringe them. In other words, unless it
1899, quantities of gold owned by the company were seized by the government of the Republic for safe unmistakably appears that a congressional act was intended to be in disregard of a principle of
keeping. Later in the same month, a state of war was declared between Great Britain and the Republic international comity, the presumption is that it was intended to be in conformity with it. It is
which culminated in the conquest and annexation of the Republic by Great Britain in September 1900. with such a principle in mind that we now proceed to an examination of the legislation upon
In the present proceedings, the company sought to establish that the British government was liable to which the government relies. Quoted 2 times
return to the company the gold seized by the Republic (an entity which had ceased to exist) or its value II. The master of any vessel from a foreign port or place who allows any merchandise
(3,804). (including sea stores) to be unladen from such vessel at any time after its arrival within four
Disposition leagues of the coast of the United States and before such vessel has come to the proper place
Under customary international law, Great Britain, as the state which had conquered and annexed the for the discharge of such merchandise, and before he has received a permit to unlade, shall be
Republic, had not, in the absence of express stipulation, succeeded to the obligation owed by the Republic liable to a penalty equal to twice the value of the merchandise but not less than $1,000, and
to the company to return the seized gold or its value. In other words, under principles of state succession such vessel and the merchandise shall be subject to seizure and forfeiture: Provided, that
forming part of customary international law, a conquering state does not become liable to discharge the whenever any part of the cargo or stores of a vessel has been unladen or transshipped because
financial obligations of the conquered state unless the conquering state has agreed expressly to do so. of accident, stress of weather, or other necessity, the master of such vessel shall, as soon as
Accordingly, in the present case, the companys claim against the British government by petition of right possible thereafter, notify the collector of the district within which such unlading or
failed. transshipment has occurred, or the collector within the district at which such vessel shall first
Judgment extract arrive thereafter, and shall furnish proof that such unlading or transshipment was made
In reaching this conclusion, LORD ALVERSTONE CJ (with whom Wills and Kennedy JJ agreed) made necessary by accident, stress of weather, or other unavoidable cause, and if the collector is
the following observations on the relationship between public international law and municipal law: satisfied that the unlading or transshipment was in fact due to accident, stress of weather, or
[406]Thepropositionthat international law forms part of the law of England, requires a word of other necessity the penalties above described shall not be incurred." Quoted 1 time
explanation and comment. It is quite true that whatever has received the common consent of civilized Three libels by the United States, one against the schooner Over the Top, and two against its cargo, with
nations must have received the assent of our country, and that to [407] which we have assented along with application by A.L. Schroeder, owner of the cargo, against Harvey Bissell, Collector, for return of cargo.
other nations in general may properly be called international law, and as such will be acknowledged and Libels dismissed.
applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions
to which doctrines of international law may be relevant. But any doctrine so invoked must be one really THOMAS, District Judge.
accepted as binding between nations, and the international law sought to be applied must, like anything On November 7, 1924, Schroeder, the owner of the cargo, brought an application against the collector of
else, be proved by satisfactory evidence, which must show either that the particular proposition put customs for the Port of Connecticut to show cause why the cargo of liquor should not be returned to him.
forward has been recognised and acted upon by our own country, or that it is of such a nature, and has This application was returnable November 11, 1924. This proceeding was entered on the docket and is
been so widely and generally accepted, that it can hardly be supposed that any civilized State would known as equity No. 1746. Following this rule to show cause and on November 12, 1924, the United
repudiate it. The mere opinions of jurists, however eminent or learned, that it ought to be so recognised, States filed a libel of forfeiture against the schooner itself, and this proceeding is entered on the docket as
are not in themselves sufficient. They must have received the express sanction of international agreement, No. 2797, in admiralty. On the same day, the government filed two libels against the cargo, and those
or gradually have grown to be part of international law by their frequent practical recognition in dealings cases are entered on the docket and known as No. 2796 and No. 2798, in admiralty. The trial on the issues
between various nations. raised by the libels and respective answers was had on January 16, 1925, and as these cases were tried
Judgment for the Crown together, they will all be discussed and decided in one opinion.
From the evidence I find the following facts established: On August 27, 1924, the schooner Over the Top,
carrying a cargo of whisky and operating under the British flag and under British registry, cleared for
Cuba from St. Johns, New Brunswick. It arrived at a point off the coast of Block Island several weeks
prior to October 19, 1924. The schooner was chartered by one A.L. Schroeder, the owner of the cargo,
The Scotia Case (USA vs. UK, 1871) who operates in Montreal but whose residence or citizenship is undisclosed.
Principle: Some customs need not to be ancient to become an International law rather if it is specified and On the 19th of October, 1924, at about 10 o'clock in the evening, the supercargo on board the schooner
accepted and also maintained by numbers of nations for the just, it may turn into a customary international sold 25 cases of whisky for $550 to a special agent of the Internal Revenue Department. The sale was
law. made in the presence of the captain, and thereupon the crew of the vessel, in the presence and under the
direction of the captain, unloaded these cases of whisky and transferred the same to a sea sled employed in
the government service. Both captain and supercargo knew that the whisky so transferred was to be aids therein, or in removing or otherwise securing such merchandise or baggage, shall each be liable to a
transported to a point on the adjacent coast, but neither one of them knew that the sea sled or the men on it penalty equal to the value of the merchandise or baggage so laden or unladen, and such merchandise or
were in the government service. The transaction occurred at a point approximately 19 miles distant from baggage shall be subject to forfeiture, and if the value thereof is $500 or more, the vessel or vehicle on or
the shore, or 115 degrees true from the southeast light of Block Island, and within one hour's running from which the same shall be laden or unladen shall be subject to forfeiture."
distance as computed by the possible speed of the sea sled when running empty and in the daytime. The "Sec. 585. Departure Before Report or Entry. If any vessel or vehicle from a foreign port or place
sea sled thereupon proceeded to the United States coast guard cutter Tampa, and 23 of the cases were arrives within the limits of any collection district and departs or attempts to depart, except from stress of
unloaded on board the Tampa, and the other two cases were landed at New London. weather or other necessity, without making a report or entry under the Provisions of this Act, or if any
On the following day, Over the Top was seized by officers of the United States coast guard, and the merchandise is unladen therefrom before such report or entry, the master of such vessel shall be liable to a
captain and crew were placed under arrest, and the ship and her cargo were towed into the Port of New penalty of $5,000, and the person in charge of such vehicle shall be liable to a penalty of $500, and any
London and turned over to the collector of customs and are now in his custody. such vessel or vehicle shall be subject to forfeiture, and any customs or coast guard officer may cause such
I further find that the schooner had been hovering for some time off the coast of the United States at the vessel or vehicle to be arrested and brought back to the most convenient port of the United States.
point where she was seized, and that those in command were engaged during that period in selling liquor "Sec. 586. Unlawful Unlading Exception.
and delivering the same to boats proceeding from the coast of the United States and returning thereto. The 1
testimony seems to support the conclusion that business was slow. The master of any vessel from a foreign port or place who allows any merchandise (including sea
Upon these facts, the United States demands judgment decreeing the forfeiture and sale of the ship and stores) to be unladen from such vessel at any time after its arrival within four leagues of the coast of the
cargo. The owner of the ship and the owner of the cargo have appeared separately, but the trial of the three United States and before such vessel has come to the proper place for the discharge of such merchandise,
actions was consolidated, and, as will be seen in the sequel, the principles of law governing are applicable and before he has received a permit to unlade, shall be liable to a penalty equal to twice the value of the
alike to both the schooner and cargo. merchandise but not less than $1,000, and such vessel and the merchandise shall be subject to seizure and
The government bases its claim of forfeiture upon the alleged violation of sections 447, 448, 450, 453, forfeiture: Provided, that whenever any part of the cargo or stores of a vessel has been unladen or
585, 586, 593, and 594 of the Tariff Act of 1922 (Comp. St. Ann. Supp. 1923, 5841e16, 5841e17, transshipped because of accident, stress of weather, or other necessity, the master of such vessel shall, as
5841e19, 5841e22, 5841h4, 5841h5, 5841h12-5841h14), as well as upon the provisions of the American- soon as possible thereafter, notify the collector of the district within which such unlading or transshipment
British Treaty which became effective May 22, 1924. The above sections of the Tariff Act provide as has occurred, or the collector within the district at which such vessel shall first arrive thereafter, and shall
follows: furnish proof that such unlading or transshipment was made necessary by accident, stress of weather, or
"Sec. 447. Unlading Place. It shall be unlawful to make entry of any vessel or to unlade the cargo or other unavoidable cause, and if the collector is satisfied that the unlading or transshipment was in fact due
any part thereof of any vessel elsewhere than at a port of entry: Provided, that upon good cause therefor to accident, stress of weather, or other necessity the penalties above described shall not be incurred."
being shown, the Secretary of Commerce may permit entry of any vessel to be made at a place other than "Sec. 593. Smuggling and Clandestine Importations. (a) If any person knowingly and willfully, with
a port of entry designated by him, under such conditions as he shall prescribe: And provided further, that intent to defraud the revenue of the United States, smuggles, or clandestinely introduces, into the United
any vessel laden with merchandise in bulk may proceed after entry of such vessel to any place designated States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass,
by the Secretary of the Treasury for the purpose of unlading such cargo, under the supervision of customs through the custom house any false, forged, or fraudulent invoice, every such person, his, her, or their
officers if the collector shall consider the same necessary, and in such case the compensation and expenses aidors and abettors, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in
of such officers shall be reimbursed to the government by the party in interest. any sum not exceeding $5,000, or imprisoned for any term of time not exceeding two years, or both, at the
"Sec. 448. Same Preliminary Entry Permit. Except as provided in section 441 of this act, no discretion of the court.
merchandise, passengers, or baggage shall be unladen from any vessel or vehicle arriving from a foreign "(b) If any person fraudulently or knowingly imports or brings into the United States, or assists in so
port or place until entry of such vessel or report of the arrival of such vehicle has been made and a permit doing, any merchandise, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the
for the unlading of the same issued by the collector: Provided, that the master may make a preliminary transportation, concealment, or sale of such merchandise after importation, knowing the same to have
entry of a vessel by making oath or affirmation to the truth of the statements contained in the vessel's been imported or brought into the United States contrary to law, such merchandise shall be forfeited and
manifest and delivering the manifest to the customs officer who boards such vessel, but the making of the offender shall be fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any
such preliminary entry shall not excuse the master from making formal entry of his vessel at the custom time not exceeding two years, or both. Whenever, on trial for a violation of this section, the defendant is
house, as provided by this act. After the entry, preliminary or otherwise, of any vessel or report of the shown to have or to have had possession of such goods, such possession shall be deemed evidence
arrival of any vehicle, the collector may issue a permit to the master of the vessel, or to the person in sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of
charge of the vehicle, to unlade merchandise or baggage, but merchandise or baggage so unladen shall be the jury.
retained at the place of unlading until entry therefor is made and a permit for its delivery granted, and the "Sec. 594. Seizure of Vessels and Vehicles. Whenever a vessel or vehicle, or the owner or master,
owners of the vessel or vehicle from which any imported merchandise is unladen prior to entry of such conductor, driver, or other person in charge thereof, has become subject to a penalty for violation of the
merchandise shall be liable for the payment of the duties accruing on any part thereof that may be customs revenue laws of the United States, such vessel or vehicle shall be held for the payment of such
removed from the place of unlading without a permit therefor having been issued. Any merchandise or penalty and may be seized and proceeded against summarily by libel to recover the same: Provided, that
baggage so unladen from any vessel or vehicle for which entry is not made within forty-eight hours no vessel or vehicle used by any person as a common carrier in the transaction of business as such
exclusive of Sunday and holidays from the time of the entry of the vessel or report of the vehicle, unless a common carrier shall be so held or subject to seizure or forfeiture under the customs laws, unless it shall
longer time is granted by the collector, as provided in section 484, shall be sent to the public stores and appear that the owner or master of such vessel or the conductor, driver, or other person in charge of such
held as unclaimed at the risk and expense of the consignee in the case of merchandise and of the owner in vehicle was at the time of the alleged illegal act a consenting party or privy thereto."
the case of baggage, until entry thereof is made." So much of the Treaty as is necessary for consideration is as follows:
"Sec. 450. Same Sundays and Holidays. No merchandise, baggage, or passengers arriving in the "Article I.
United States from any foreign port or place, and no bonded merchandise or baggage being transported "The high contracting parties declare that it is their firm intention to uphold the principle that 3 marine
from one port to another, shall be unladen from the carrying vessel or vehicle on Sunday, a holiday, or at miles extending from the coastline outwards and measured from low-water mark constitute the proper
night, except under special license granted by the collector under such regulations as the Secretary of the limits of territorial waters."
Treasury may prescribe." "Article II, Sections 1, 2, and 3.
"Sec. 453. Penalty for Violation. If any merchandise or baggage is laden on, or unladen from, any "(1) His Britannic Majesty agrees that he will raise no objection to the boarding of private vessels under
vessel, or vehicle without a special license or permit therefor issued by the collector, the master of such the British flag outside the limits of territorial waters by the authorities of the United States, its territories
vessel or the person in charge of such vehicle and every other person who knowingly is concerned, or who or possessions in order that enquiries may be addressed to those on board and an examination be made of
the ship's papers for the purpose of ascertaining whether the vessel or those on board are endeavoring to prohibit acts by foreign nationals not committed within our domain, has already been conceded; but unless
import or have imported alcoholic beverages into the United States, its territories or possessions in such intent clearly appears from the language of the statute such intent is not to be presumed.
violation of the laws there in force. When such enquiries and examination show a reasonable ground for It would seem that the libelant does not take the view that the acts complained of constituted an infraction
suspicion, a search of the vessel may be instituted. of our law by the very force of the language of the statute, else there would be no reason to invoke the aid
"(2) If there is reasonable cause for belief that the vessel has committed or is committing or attempting to of the provisions of American-British Treaty. It is obvious that if the unlading of the whisky 19 or 20 miles
commit an offense against the laws of the United States, its territories or possessions prohibiting the out at sea constituted a violation of section 447 of the Tariff Act, then such violation was justiciable and
importation of alcoholic beverages, the vessel may be seized and taken into a port of the United States, its punishable irrespective of the provisions of the treaty. The treaty would serve to obviate diplomatic
territories or possessions for adjudication in accordance with such laws. embarrassments arising out of the seizure of a British vessel on the high seas, but it would be useless for
"(3) The rights conferred by this article shall not be exercised at a greater distance from the coast of the the purposes of determining the intent of the provisions of section 447 of the Tariff Act.
United States, its territories, or possessions than can be traversed in one hour by the vessel suspected of The same considerations apply with equal force to the provisions of sections 448, 450, 453, 585, 593, and
endeavoring to commit the offense. In cases, however, in which the liquor is intended to be conveyed to 594 of the Tariff Act of 1922. These enactments of the Congress are implicit with the proviso that the acts
the United States, its territories or possessions by a vessel other than the one boarded and searched, it shall therein denounced be accomplished within the territory of the United States. No attempt is there
be the speed of such other vessel and not the speed of the vessel boarded, which shall determine the discernible to extend the legislative jurisdiction of the United States beyond its boundaries. Of utmost
distance from the coast at which the right under this article can be exercised." significance, therefore, is the language of section 586 of the act providing that the master of any vessel
But before we proceed to discuss the above-quoted sections of the Tariff Act as well as the treaty, it may from a foreign port, who allows any merchandise to be unladen from such vessel at any time after its
be well to dispose of one of the contentions made by counsel in behalf of the cargo and the schooner. arrival within four leagues of the coast of the United States, and before such vessel has come to the proper
The proposition is advanced that, regardless of our municipal legislation, the acts complained of could not place for the discharge of such merchandise, and before permission has been given to unlade, shall be
constitute offenses against the United States when committed by foreign nationals, on foreign bottoms, on liable to a penalty, and the vessel and the merchandise shall be subject to seizure and forfeiture. It appears
the high seas at a point beyond the territorial jurisdiction of the country. Well-known principles of to me that this section has a most important, if not a determinative, bearing upon the point under
international practice are invoked in support of this contention accompanied with the citation of authority. discussion. This enactment has been part of our legislation for over a hundred years. Here we have a
Upon careful consideration, however, I am led to conclude that a misconception exists here as to the distinct extension of our sea jurisdiction to a point 12 miles from the coast an assertion of authority
status, in a federal forum, of so-called international law when that law encounters a municipal enactment. which may perhaps clash with international practice, but which, whether challenged or not, is
If we assume for the present that the national legislation has, by its terms, made the acts complained of a unmistakable, and which, therefore, it is the business of our courts to enforce. Had the master and super
crime against the United States even when committed on the high seas by foreign nationals upon a ship of cargo of Over the Top been guilty of unlading the liquor at a point within this 12-mile zone, it may be that
foreign registry, then there is no discretion vested in the federal court, once it obtains jurisdiction, to we would have had no difficulty in sustaining the libels.
decline enforcement. International practice is law only in so far as we adopt it, and like all common or Indeed, the applicability of section 593 of the Tariff Act to the case at bar has already been negatively
statute law it bends to the will of the Congress. It is not the function of courts to annul legislation; it is determined in the authoritative opinion of the Supreme Court in Keck v. United States, 172 U.S. 434, 19
their duty to interpret and by their judicial decrees to enforce it and even when an act of Congress is S. Ct. 254, 43 L. Ed. 505. The statute which was the subject of construction in that case was substantially
declared invalid, it is only because the basic law is being enforced in that declaration. There is one ground the same in language as section 593 now under consideration, and there it was held that the offense
only upon which a federal court may refuse to enforce an act of Congress and that is when the act is held denounced by the statute could not be accomplished until the customs barrier had been passed, and
to be unconstitutional. The act may contravene recognized principles of international comity, but that therefore, even though goods intended to be smuggled were brought within the three-mile sea zone, that,
affords no more basis for judicial disregard of it than it does for executive disregard of it. These libels, nevertheless, smuggling was not perpetrated until the goods were landed and passed into the country.
therefore, cannot be attacked upon the ground that the territorial jurisdiction of the United States cannot be My conclusion, then, is that as no statute embracing the subject-matter of sections 447, 448, 450, 453,
extended beyond the three-mile sea zone under international law. 585, 586, 593, and 594 of the Tariff Act of 1922 has extended our territorial jurisdiction to a point on the
high seas distant 19 miles from our coast, conduct which would have been in violation of these sections if
2 performed within our territory cannot constitute an offense against the United States when performed at
If, however, the court has no option to refuse the enforcement of legislation in contravention of principles such a distance by foreign nationals on ships of foreign registry. If, for the purpose of our treasury, we can
of international law, it does not follow that in construing the terms and provisions of a statute it may not extend our sea jurisdiction to a point four leagues from the coast, I see no reason why we cannot extend it
assume that such principles were on the national conscience and that the congressional act did not four leagues more. I merely observe that we have not done so yet.
deliberately intend to infringe them. In other words, unless it unmistakably appears that a congressional I now come to the provisions of the American-British Treaty, which was obviously contracted for the
act was intended to be in disregard of a principle of international comity, the presumption is that it was purpose of preventing hovering ships from supplying intoxicating liquor to carriers running between the
intended to be in conformity with it. It is with such a principle in mind that we now proceed to an ships and the shore. There can be no question as to the general intent of the treaty and as to what was
examination of the legislation upon which the government relies. supposed to have been accomplished by its provisions. But it is one thing to apprehend the purpose of an
Section 447 of the Tariff Act of 1922, quoted supra, makes it unlawful for the vessel to make entry of or to act and quite another to determine that the language of the act is effective. The treaty in question provides
unlade any part of its cargo elsewhere than at a port of entry. Part of the cargo of Over the Top was that no objections will be raised by the British government to the boarding of vessels flying the British
unloaded on the high seas, and the government contends that the statute was thereby violated. To me it flag outside the territorial waters of the United States for the purpose of investigating the cargo in order to
seems that the statute was intended to prevent entry or unlading at a port or place in the country other than determine whether the vessel or those on board are endeavoring to import alcoholic beverages into the
a port of entry. It had no reference to unlading on the seas even when done within the three-mile zone. But United States in violation of our laws. The British government further does not object to the seizure of
waiving that question, it is to be noted that the act is phrased in general language and that it bespeaks no such a vessel found violating our law and to its disposition in accordance with such laws. The treaty
suggestion of territorial limitation. The proposition has not heretofore been advanced that for that reason further provides that the zone of operations by the United States is extended to a point one hour's running
the act has attempted to extend the territorial jurisdiction of the United States over the whole earth. Almost distance from our coast, wholly irrespective of the mileage coverable within such hour, and that where the
all criminal statutes, or statutes prohibiting defined conduct, are phrased in general language without liquor is intended to be conveyed to the coast by a vessel other than the one boarded and searched it is the
mention of territorial limitation. But they are all to be read in the light of the principle that jurisdiction is speed of that vessel which is to determine the distance.
not extraterritorial and that the municipal legislation is not attempting to regulate or to punish conduct I have already found that the possible speed of the sea sled under the conditions disclosed by the
performed outside of the national domain. For example, the statutes of Connecticut do not forbid larceny testimony was about 30 knots an hour. But the evidence showed that this speed was made in the daylight
in Connecticut they forbid larceny. The statutes of the United States do not forbid counterfeiting in the when the boat carried no load, and when it skidded along over the top of the water with its stern only
United States they forbid counterfeiting. That the Congress may, in disregard of the law of nations, displacing water and while running from New London to Point Judith Gas Buoy and along the lee of the
land. There is absolutely no evidence in the record as to how far the sea sled could travel in an hour and in
the dark with 25 cases of liquor and three men aboard as on the night it left the schooner Over the Top law of the land, but they were ineffective to draw a dollar from the treasury. The Russian-American Treaty
with wind, weather, and tide as it in fact existed on the night in question. of 1824 ( 8 Stat. 302) against selling liquors to the Alaskan natives was followed by the necessary penal
Now the treaty provides that the right of seizure cannot be exercised at a greater distance from the coast legislation by the Congress. The treaty with various powers made in 1847 defining piracy and declaring its
"than can be traversed in one hour by the vessel suspected of endeavoring to commit the offense." As we punishment, received similar reinforcing enactments. The same was true of the Treaty of 1862 with Great
are dealing here with fines and forfeitures, I cannot assume that this language was intended to cover an Britain ( 12 Stat. 1225), suppressing the slave trade; of the Treaty of 1884 ( 24 Stat. 989), with various
hypothetical case; that the seizure would be treated as legal if accomplished at a point constituting the powers imposing fines and penalties for the protection of submarine cables; and of the Treaty of 1912 ( 37
greatest distance which the unladen ship could traverse in one hour at her maximum speed under the most Stat. 1542), for the protection of seals in the North Pacific Ocean.
favorable conditions of wind and tide. It seems to me that a rational construction requires us to measure The instances just cited indicate the practice of congressional action in order to effectuate the penal
the distance by the actual speed of the boat accomplished from the point of capture to the nearest available provisions of a treaty, and I have no doubt that such practice is necessary in order to accomplish the
point on the coast in normal wind and tide and under the same conditions as pertain at the time of the purposes of the treaties. It happens that the American-British Treaty here under consideration does not
seizure. Nor can I see any reason for applying any different rule when the distance is to be measured by declare it a crime for a British national on a ship of British registry to sell liquor for purposes of
the speed of the carrier from ship to coast. It is the speed of the boat conveying liquor, and when it is importation into this country within one hour's running distance of our shore. Nor does the treaty forbid
engaged in conveying liquor to the United States, that must be determined. When conveying liquor, her such an act. But even if such conduct had been prohibited by the terms of the treaty, no indictment could
speed may be below that of her speed when empty. lie for transgressing that prohibition. If an indictment could not lie for violating the direct command of the
That such jurisdictional facts may be exceedingly difficult of proof, and that penalties and forfeitures are Eighteenth Amendment to the Constitution until the Congress had defined the offense and proclaimed the
to be determined by a standard as uncertain as the equity which once was said to vary with the size of the penalty, then the fiat of a treaty would be inadequate for such a purpose. No distinction exists here
chancellor's foot, may be a matter of regret; but it is the business of the courts to construe treaties and not between the necessary basis of an indictment and that of a libel for forfeiture. If the facts do not warrant an
to make them. But it is to be noted in this particular case the sea sled, owned by the government and indictment, they do not warrant a penalty.
operated by government officials, had full opportunity to time its run laden with its crew and 25 cases of In this connection it may be well to emphasize the general nature of the provisions of the Tariff Act relied
liquor on the night in question and so present in court reliable and satisfactory evidence. Instead, they upon by the libelant. In the instance at bar, we happen to be dealing with liquor, but the legislation which
turned and made for the Tampa, and on it unloaded 23 cases and carried only 2 cases to New London. And is invoked is by no means concerned exclusively with this commodity. A British or French ship unlading
no explanation was offered for such operations. coffee or coal within the 12-mile limit, and before entry and permission to unlade, would be just as guilty
There being no evidence before me from which I can determine the speed of the sea sled when laden with of violating these acts as if she were unlading liquor. Neither her nationality nor the nature of her cargo
the 25 cases of liquor, and no evidence to meet the provisions of the treaty that, "In cases, however, in would have any bearing on the issues.
which the liquor is intended to be conveyed to the United States * * * by a vessel other than the one Whether therefore the Senate and the Executive may constitutionally enact criminal legislation by the
boarded and searched, it shall be the speed of such other vessel, * * * which shall determine the distance device of a mere treaty is a question which fortunately we need not discuss. It is sufficient to conclude that
from the coast at which the right under this article can be exercised" (article 2, 3), I would feel obliged the American-British Treaty did not in fact enact new criminal legislation.
for this reason alone to decree a dismissal of the libels. But I am not unmindful of the possibility of error There are other considerations which should be noted. It is conceded that a sale was made; that the
in my construction of this part of the treaty and a much larger question looms in the background. supercargo sold the cases of liquor to the government agent aboard the government sea sled and received
It must be noted that the treaty does not define the acts constituting an offense against the laws of the $550. This transaction was on the high seas and 7 miles beyond the 12-mile limit and at a place where the
United States prohibiting the importation of alcoholic beverages. These acts are defined in the statute. If transaction was valid. Title therefore passed. Can it be claimed that there was a violation either by
reasonable grounds exist for believing that a vessel under British registry is in fact guilty of contravening schooner or cargo (for these libels are against them) of any law of the United States? After the sale, title to
the Prohibition Law (Comp. St. Ann. Supp. 1923, 10138 et seq.), then our government may seize it if the goods vested in the government men. Under section 593 is it claimed they smuggled the goods into
it is within the specified area, and when seized its fate may then be determined in accordance with our this country? If they did not, there was no violation of United States law certainly none by cargo or
laws. If it is not within the specified area, it may not even be seized. But if it is within the specified area, it schooner or even by the men aboard who made the sale, as they all lost title when the goods were bought
does not follow that it is for that reason violating our laws. and paid for, and, of course, no one claims the government men smuggled the liquor. The whole situation
Now the grant by one sovereign to another of the right to seize its nationals upon the high seas without seems a perfect paradox. The respondents plead entrapment as a defense, and urge it strenuously in the
process and by force majeure for crimes committed by those nationals against the offended sovereign, by brief. In view of the conclusions above reached, it is not necessary to discuss at length this question. It is
no means declares that those acts when committed on the high seas constitute such crimes. If, before this sufficient to say that there is much merit in the defense when considered in connection with the above
treaty was contracted, the unlading of merchandise by a ship of British registry at a point more than four proposition that when the title to the goods passed and became vested in the purchasers, the respondents
leagues removed from the coast of the United States did not constitute a crime against the United States could not smuggle what they sold, and which they would not have sold had they not been importuned by
(and there appears to be no contention that it did), then the treaty could not and did not make it a crime. the men on the sea sled.
In support of its contention, the government cites and relies upon United States v. The Pictonian, 3 F.2d The considerations as above expressed therefore impel the conclusion that there is no legal basis for these
145, recently decided in the Eastern district of New York, where it was held that the American-British libels, and it follows that they must be and the same are dismissed. Submit findings and decree.
Treaty did, as to ships of British registry, extend the operation of the criminal laws of the United States to
the shifting line designated in the treaty. I have carefully read Judge Campbell's opinion and find myself
unable to agree with its reasoning. The learned judge speaks of the treaty as self-executing. The
significance of the phrase in this connection is somewhat obscure. As a treaty, there was no need of
congressional legislation to make it effective, and in this sense all treaties are self-executing. But if it was
the intent of the government to make it a crime for a ship of British registry to unlade liquor within a sea
zone on our coast, traversible in one hour, then that intent was not effectuated by the mere execution of the
treaty. It is not the function of treaties to enact the fiscal or criminal law of a nation. For this purpose no
treaty is self-executing. Congress may be under a duty to enact that which has been agreed upon by treaty,
but duty and its performance are two separate and distinct things. Nor is there any doubt that the treaty
making power has its limitations. What these are has never been defined, perhaps never need be defined.
Certain it is that no part of the criminal law of this country has ever been enacted by treaty.
Illustrations of congressional effectuation of treaties are plentiful. All treaties requiring payments of
money have been followed by acts of Congress appropriating the amount. The treaties were the supreme
Respondents have not presented any evidence to prove that the WHA Resolutions, although signed by
most of the member states, were in fact enforced or practiced by at least a majority of the member states
and obligatory in nature. The provisions of the WHA Resolutions cannot be considered as part of the law
of the land that can be implemented by executive agencies without the need of a law enacted by the
legislature. On the other hand, the petitioners also failed to explain and prove by competent evidence just
exactly how such protective regulation would result in the restraint of trade. Since all the regulatory
provisions under the Milk Code apply equally to both manufacturers and distributors, the Court sees no
harm in the RIRR. Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective, purpose and intent of the Milk Code.

Pharmaceutical and Health Care Association Of The Philippines The Paquete Habana and The Lola 175 U.S. 677 (1900)
vs. Health Secretary Francisco T. Duque III Facts:
G.R. No. 173034, October 9, 2007 These are two appeals from decrees of the district court of the United States for the southern
Austria-Martinez, J.:
district of Florida condemning two fishing vessels and their cargoes as prize of war.
Facts: Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in
On October 28, 1986, Executive Order No. 51 (Milk Code) was issued by President Corazon fishing on the coast of Cuba. It sailed under the Spanish flag and was owned by a Spanish
Aquino by virtue of the legislative powers granted to the president under the Freedom Constitution. The subject of Cuban birth, living in the city of Havana. It was commanded by a subject of Spain,
Milk Code states that the law seeks to give effect to Article 112 of the International Code of Marketing of also residing in Havana. Her master and crew had no interest in the vessel, but were entitled to
Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From share her catch.
1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be supported, Her cargo consisted of fresh fish, caught by her crew from the sea, put on board as they were
promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for caught, and kept and sold alive. Until stopped by the blockading squadron she had no
breastmilk substitutes. the Philippines ratified the International Convention on the Rights of the Child.
Article 24 of said instrument provides that State Parties should take appropriate measures to diminish
knowledge of the existence of the war or of any blockade. She had no arms or ammunition on
infant and child mortality, and ensure that all segments of society, specially parents and children, are board, and made on attempt to run the blockade after she knew of its existence, nor any
informed of the advantages of breastfeeding. the DOH issued RIRR which was to take effect on July 7, resistance at the time of the capture.
2006. a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Revised The Paquete Habana (1st vessel) was a sloop and had a crew of three Cubans, including the
Implementing Rules and Regulations of The Milk Code, assailing that the RIRR was going beyond the master, who had a fishing license from the Spanish government, and no other commission or
provisions of the Milk Code, thereby amending and expanding the coverage of said law. license. She left Havana and was captured by the United States gunboat Castine.
The Lola (2nd vessel) was a schooner and had a crew of six Cubans, including the master, and
Issue:
no commission or license. She was stopped by the United States steamship Cincinnati, and
Whether or not respondents officers of the DOH acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the was warned not to go into Havana, but was told that she would be allowed to land at Bahia
provisions of the Constitution in promulgating the RIRR Honda. She then set for Bahia Honda, but on the next morning, when near that port, was
captured by the United States steamship Dolphin.
Ruling: Both the fishing vessels were brought by their captors into Key West. A libel for the
The Supreme Court PARTIALLY GRANTED the petition. Sections 4(f), 11 and 46 of condemnation of each vessel and her cargo as prize of war was filed. Each vessel was sold by
Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra auction (the Paquete Habana for the sum of $490 and the Lola for the sum of $800). There was
vires. The Department of Health and respondents are PROHIBITED from implementing said provisions. no other evidence in the record of the value of either vessel or of her cargo.
The international instruments pointed out by the respondents, UNRC, ICESR, CEDAW, are deemed part
of the law of the land and therefore the DOH may implement them through the RIRR. Customary
international law is deemed incorporated into our domestic system. Custom or customary international law Issue:
means a general and consistent practice of states followed by them from a sense of legal obligation Whether or not the fishing smacks were subject to capture during the war with Spain.
(opinio juris). Under the 1987 Constitution, international law can become part of the sphere of domestic
law either by transformation or incorporation. The transformation method requires that an international Held:
law be transformed into a domestic law through a constitutional mechanism such as local legislation. No. By an ancient usage among civilized nations, beginning centuries ago, and gradually
Generally accepted principles of international law refers to norms of general or customary international ripening into a rule of international law, coast fishing vessels, pursuing their vocation of
law which are binding on all states. The Milk Code is a verbatim reproduction of the (ICMBS), but it did catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and
not prohibit advertising or other forms of promotion to the general public of products. Instead, the Milk
Code expressly provides that advertising, promotion, or other marketing materials may be allowed if such
crews, from capture as prize of war. (The case then discussed instances throughout history
materials are duly authorized and approved by the Inter-Agency Committee (IAC). In this regard, the where fishing vessels were captured.)
WHA Resolutions adopting the ICMBS are merely recommendatory and legally non-binding. This may It will be convenient to refer to some leading French treatises on international law as
constitute soft law or non-binding norms, principles and practices that influence state behavior. determined by the general consent of civilized nations.
'Enemy ships,' say Pistoye and Duverdy, in their Treatise on Maritime Prizes, published in because it has been generally accepted as a rule of conduct. Whatever may have been its
1855, 'are good prize. Not all, however; for it results from the unanimous accord of the origin, whether in the usages of navigation, or in the ordinances of maritime states, or in both,
maritime powers that an exception should be made in favor of coast fishermen. Such it has become the law of the sea only by the concurrent sanction of those nations who may be
fishermen are respected by the enemy so long as they devote themselves exclusively to said to constitute the commercial world. Many of the usages which prevail, and which have
fishing.' the force of law, doubtless originated in the positive prescriptions of some single state, which
De Cussy, in his work on the Phases and Leading Cases of the Maritime Law of Nations, were at first of limited effect, but which, when generally accepted, became of universal
affirms in the clearest language the exemption from capture of fishing boats, saying, that 'in obligation.'
time of war the freedom of fishing is respected by belligerents; fishing boats are considered as In the case, each vessel was of a moderate size, such as is not unusual in coast fishing smacks,
neutral; in law, as in principle, they are not subject either to capture or to confiscation. and was regularly engaged in fishing on the coast of Cuba. The crew of each were few in
Ortolan, in the fourth edition of his Regles Internationales et Diplomatie de la Mer, after number, had no interest in the vessel, and received, in return for their toil and enterprise, two
stating the general rule that the vessels and cargoes of subjects of the enemy are lawful prize, thirds of her catch, the other third going to her owner by way of compensation for her use.
says: 'Nevertheless, custom admits an exception in favor of boats engaged in the coast fishery; Each vessel went out from Havana to her fishing ground, and was captured when returning
these boats, as well as their crews, are free from capture and exempt from all hostilities. The along the coast of Cuba. The cargo of each consisted of fresh fish, caught by her crew from the
coast-fishing industry is, in truth, wholly pacific, and of much less importance in regard to the sea, and kept alive on board. Although one of the vessels extended her fishing trip, we cannot
national wealth that it may produce than maritime commerce or the great fisheries. Peaceful doubt that each was engaged in the coast fishery, and not in a commercial adventure, within
and wholly inoffensive, those who carry it on, may be called the harvesters of the territorial the rule of international law.
seas, since they confine themselves to gathering in the products thereof; they are for the most The case was adjudged that the capture was unlawful and without probable cause ordered that
part poor families who seek in this calling hardly more than the means of gaining their the proceeds of the sale of the vessel, together with the proceeds of any sale of her cargo, be
livelihood.' Again, after observing that there are very few solemn public treaties which make restored to the claimant, with damages and costs.
mention of the immunity of fishing boats in time of war, he says: 'From another point of view
the custom which sanctions this immunity is not so general that it can be considered as making
an absolute international rule; but it has been so often put in practice, and, besides, it accords
so well with the rule in use in wars on land, in regard to peasants and husbandmen, to whom Brief Fact Summary. The argument of the fishermen whose vessels was seized by the U.S
coast fishermen may be likened, that it will doubtless continue to be followed in maritime (P) officials was that international law exempted coastal fishermen from capture as prizes of
wars to come. (A lot of opinions of other writers were also included which will not be war.
mentioned in this digest) Synopsis of Rule of Law. The argument of the fishermen whose vessels was seized by the
This review of the precedents and authorities on the subject appears to us abundantly to U.S (P) officials was that international law exempted coastal fishermen from capture as prizes
demonstrate that at the present day, by the general consent of the civilized nations of the of war.
world, and independently of any express treaty or other public act, it is an established rule of Facts. This appeal of a district court decree, which condemned two fishing vessels and their
international law, founded on considerations of humanity to a poor and industrious order of cargoes as prizes of war, was brought by the owners (D) of two separate fishing vessels. Each
men, and of the mutual convenience of belligerent states, that coast fishing vessels, with their of the vessel running in and out of Havana and sailing under the Spanish flag was a fishing
implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful smack which regularly engaged in fishing on the coast of Cuba. Inside the vessels were fresh
calling of catching and bringing in fresh fish, are exempt from capture as prize of war. fish which the crew had caught.
The exemption, of course, does not apply to coast fishermen or their vessels if employed for a The owners of the vessels were not aware of the existence of a war until they were stopped by
warlike purpose, or in such a way as to give aid or information to the enemy; nor when U.S. (P) squadron. No incriminating material like arms were found on the fishermen and they
military or naval operations create a necessity to which all private interests must give way. did not make any attempt to run the blockade after learning of its existence not did they resist
Nor has the exemption been extended to ships or vessels employed on the high sea in taking their arrest. When the owners (D) appealed, they argued that both customary international law
whales or seals or cod or other fish which are not brought fresh to market, but are salted or and writings of leading international scholars recognized an exemption from seizure at
otherwise cured and made a regular article of commerce. wartime of coastal fishing vessels.
This rule of international law is one which prize courts administering the law of nations are Issue. Are coastal fishing vessels with their cargoes and crews excluded from prizes of war?
bound to take judicial notice of, and to give effect to, in the absence of any treaty or other Held. (Gray, J.). Yes. Coastal fishing vessels with their cargoes and crews are excluded from
public act of their own government in relation to the matter. prizes of war. The doctrine that exempts coastal fishermen with their vessels and crews from
By the practice of all civilized nations, vessels employed only for the purposes of discovery or capture as prizes of war has been known by the U.S. (P) from the time of the War of
science are considered as exempt from the contingencies of war, and therefore not subject to Independence and has been recognized explicitly by the French and British governments. It is
capture. It has been usual for the government sending out such an expedition to give notice to an established rule of international law that coastal fishing vessels with their equipment and
other powers; but it is not essential. supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching
To this subject in more than one aspect are singularly applicable the words uttered by Mr. and bringing in fish are exempt from capture as prizes of war. Reversed.
Justice Strong, speaking for this court: 'Undoubtedly no single nation can change the law of Discussion. Chief Justice Fuller who had a dissenting opinion which was not published in this
the sea. The law is of universal obligation and no statute of one or two nations can create casebook argued that the captured vessels were of such a size and range as to not fall within
obligations for the world. Like all the laws of nations, it rests upon the common consent of the exemption. He further argued that the exemption in any case had not become a customary
civilized communities. It is of force, not because it was prescribed by any superior power, but
rule of international law, but was only an act of grace that had not been authorized by the 2. The court held that there was no expressed or implied right of unilateral and definitive
President. qualification of the State that grants asylum under the Havana Convention or relevant principles of
international law (p. 12, 13). The Montevideo Convention of 1933, which accepts the right of
unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was not
ratified by Peru. The Convention, per say, was not binding on Peru and considering the low numbers
of ratifications the provisions of the latter Convention cannot be said to reflect customary
international law (p. 15).
3. Colombia also argued that regional or local customs support the qualification. The court held that
the burden of proof on the existence of an alleged customary law rests with the party making the
allegation:
The Party which relies on a custom of this kind must prove that this custom is established in such a
manner that it has become binding on the other Party (that) it is in accordance with a (1)
constant and uniform usage (2) practiced by the States in question, and that this usage is (3) the
expression of a right appertaining to the State granting asylum (Columbia) and (4) a duty
incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute of
the Court, which refers to international custom as evidence of a general practice accepted as
law(text in brackets added).
4. The court held that Columbia did not establish the existence of a regional custom because it failed
to prove consistent and uniform usage of the alleged custom by relevant States. The fluctuations and
contradictions in State practice did not allow for the uniform usage (see also Mendelson, 1948 and
see also Nicaragua case, p. 98, the legal impact of fluctuations of State practice). The court also
Asylum Case (Columbia/Peru), 1950, ICJ. reiterated that the fact that a particular State practice was followed because of political expediency
Overview: Columbia granted asylum to a Peruvian, accused of taking part in a military rebellion in and not because of a belief that the said practice is binding on the State by way of a legal obligation
Peru. Was Columbia entitled to make a unilateral and definitive qualification of the offence (as a (opinio juris) is detrimental to the formation of a customary law (see North Sea Continental Shelf
political offence) in a manner binding on Peru and was Peru was under a legal obligation to provide Cases and Lotus Case for more on opinio juris):
safe passage for the Peruvian to leave Peru? [T]he Colombian Government has referred to a large number of particular cases in which
Facts of the Case: Peru issued an arrest warrant against Victor Raul Haya de la Torre in respect of diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule of
the crime of military rebellion which took place on October 3, 1949, in Peru. 3 months after the unilateral and definitive qualification was invoked or that it was, apart from conventional
rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador stipulations, exercised by the States granting asylum as a right appertaining to them and respected
confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana by the territorial States as a duty incumbent on them and not merely for reasons of political
Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, expediency. The facts brought to the knowledge of the Court disclose so much uncertainty and
the Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the
Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the official views expressed on various occasions, there has been so much inconsistency in the rapid
same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification and succession of conventions on asylum, ratified by some States and rejected by others, and the
refused to grant safe passage. practice has been so much influenced by considerations of political expediency in the various cases,
Questions before the Court: that it is not possible to discern in all this any constant and uniform usage, mutually accepted as
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for law, with regard to the alleged rule of unilateral and definitive qualification of the offence.
the purpose of asylum under treaty law and international law? 5. The court held that even if Colombia could prove that such a regional custom existed, it would
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage? not be binding on Peru, because Peru far from having by its attitude adhered to it, has, on the
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939,
called the Havana Convention) when it granted asylum and is the continued maintenance of asylum which were the first to include a rule concerning the qualification of the offence [as political in
a violation of the treaty? nature] in matters of diplomatic asylum. (See in this regard, the lesson on persistent objectors.
The Courts Decision: Similarly in the North Sea Continental Shelf Cases the court held in any event the . . . rule would
Relevant Findings of the Court: appear to be inapplicable as against Norway in as much as she had always opposed any attempt to
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for apply it to the Norwegian coast.)
the purpose of asylum under treaty law and international law? 6. The court concluded that Columbia, as the State granting asylum, is not competent to qualify the
1. The court stated that in the normal course of granting diplomatic asylum a diplomatic offence by a unilateral and definitive decision, binding on Peru.
representative has the competence to make a provisional qualification of the offence (for example, (2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
as a political offence) and the territorial State has the right to give consent to this qualification. In passage?
the Torres case, Colombia has asserted, as the State granting asylum, that it is competent to qualify 7. The court held that there was no legal obligation on Peru to grant safe passage either because of
the nature of the offence in a unilateral and definitive manner that is binding on Peru. The court had the Havana Convention or customary law. In the case of the Havana Convention, a plain reading of
to decide if such a decision was binding on Peru either because of treaty law (in particular the Article 2 results in an obligation on the territorial state (Peru) to grant safe passage only after it
Havana Convention of 1928 and the Montevideo Convention of 1933), other principles of requests the asylum granting State (Columbia) to send the person granted asylum outside its
international law or by way of regional or local custom. national territory (Peru). In this case the Peruvian government had not asked that Torre leave Peru.
On the contrary, it contested the legality of asylum granted to him and refused to grant safe conduct.
8. The court looked at the possibility of a customary law emerging from State practice where 16. Asylum may be granted on humanitarian grounds to protect political prisoners against the
diplomatic agents have requested and been granted safe passage for asylum seekers, before the violent and disorderly action of irresponsible sections of the population. (for example during a mob
territorial State could request for his departure. Once more, the court held that these practices were a attack where the territorial State is unable to protect the offender). Torre was not in such a situation
result of a need for expediency and other practice considerations over an existence of a belief that at the time when he sought refuge in the Colombian Embassy at Lima.
the act amounts to a legal obligation (see paragraph 4 above). 17. The court concluded that the grant of asylum and reasons for its prolongation were not in
There exists undoubtedly a practice whereby the diplomatic representative who grants asylum conformity with Article 2(2) of the Havana Convention (p. 25).
immediately requests a safe conduct without awaiting a request from the territorial state for the The grant of asylum is not an instantaneous act which terminates with the admission, at a given
departure of the refugeebut this practice does not and cannot mean that the State, to whom such a moment of a refugee to an embassy or a legation. Any grant of asylum results in, and in
request for safe-conduct has been addressed, is legally bound to accede to it. consequence, logically implies, a state of protection, the asylum is granted as long as the continued
(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and presence of the refugee in the embassy prolongs this protection.
is the continued maintenance of asylum a violation of the treaty?
9. Article 1 of the Havana Convention states that It is not permissible for States to grant asylum
to persons accused or condemned for common crimes (such persons) shall be surrendered upon
request of the local government.
10. In other words, the person-seeking asylum must not be accused of a common crime (for
example, murder would constitute a common crime, while a political offence would not).The
accusations that are relevant are those made before the granting of asylum. Torres accusation
related to a military rebellion, which the court concluded was not a common crime and as such the
granting of asylum complied with Article 1 of the Convention.
11. Article 2 (2) of the Havana Convention states that Asylum granted to political offenders in
legations, warships, military camps or military aircraft, shall be respected to the extent in which
allowed, as a right or through humanitarian toleration, by the usages, the conventions or the laws of
the country in which granted and in accordance with the following provisions: First: Asylum may
not be granted except in urgent cases and for the period of time strictly indispensable for the person
who has sought asylum to ensure in some other way his safety. The North Sea Continental Shelf Cases (Germany/Denmark; Germany/Netherlands), 1969, ICJ
12. An essential pre-requisite for the granting of asylum is the urgency or, in other words, the Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement
presence of an imminent or persistence of a danger for the person of the refugee. The court held for forming customary international law State practice (objective element) and opinio juris (subjective
that the facts of the case, including the 3 months that passed between the rebellion and the time element). It elaborated the criteria necessary to establish State practice widespread and representative
when asylum was sought, did not establish the urgency criteria in this case (pp. 20 -23). The court participation. The case highlighted that the State practice of importance were of those States whose
held: interests were affected by the custom. It also identified the fact that uniform and consistent practice was
In principle, it is inconceivable that the Havana Convention could have intended the term urgent necessary to show opinio juris a belief that the practice amounts to a legal obligation. The North Sea
Continental Self Cases also dispelled the myth that duration of the practice (i.e. the number of years) was
cases to include the danger of regular prosecution to which the citizens of any country lay
an essential factor in forming customary international law.
themselves open by attacking the institutions of that country In principle, asylum cannot be
The case involved the delimitation of the continental shelf areas in the North Sea between Germany and
opposed to the operation of justice. Denmark and Germany and Netherlands beyond the partial boundaries previously agreed upon by these
13. In other words, Torre was accused of a crime but he could not be tried in a court because States. The parties requested the ICJ to decide the principles and rules of international law that are
Colombia granted him asylum. The court held that protection from the operation of regular legal applicable to the above delimitation. The parties disagreed on the applicable principles or rules of
proceedings was not justified under diplomatic asylum. delimitation Netherlands and Denmark relied on the principle of equidistance (the method of
14. The court held: determining the boundaries in such a way that every point in the boundary is equidistant from the nearest
In the case of diplomatic asylum the refugee is within the territory of the State. A decision to grant points of the baselines from which the breath of the territorial sea of each State is measured). Germany
diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the sought to get a decision in favour of the notion that the delimitation of the relevant continental shelf is
offender from the jurisdiction of the territorial State and constitutes an intervention in matters governed by the principle that each coastal state is entitled to a just and equitable share (hereinafter
which are exclusively within the competence of that State. Such a derogation from territorial called just and equitable principle/method). Contrary to Denmark and Netherlands, Germany argued that
sovereignty cannot be recognised unless its legal basis is established in each particular case. the principle of equidistance was neither a mandatory rule in delimitation of the continental shelf nor a
15. As a result, exceptions to this rule are strictly regulated under international law. rule of customary international law that was not binding on Germany. The court was not asked to delimit
An exception to this rule (asylum should not be granted to those facing regular prosecutions) can the parties agreed to delimit the continental shelf as between their countries, by agreement, after the
occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such would determination of the ICJ on the applicable principles.
be the case if the administration of justice were corrupted by measures clearly prompted by political Facts of the Case: Netherlands and Denmark had drawn partial boundary lines based on the equidistance
aims. Asylum protects the political offender against any measures of a manifestly extra-legal principle (A-B and C-D). An agreement on further prolongation of the boundary proved difficult because
Denmark and Netherlands wished this prolongation to take place based on the equidistance principle (B-E
character which a Government might take or attempt to take against its political opponents On
and D-E) where as Germany was of the view that, together, these two boundaries would produce an
the other hand, the safety which arises out of asylum cannot be construed as a protection against inequitable result for her. Germany stated that due to its concave coastline, such a line would result in her
the regular application of the laws and against the jurisdiction of legally constituted tribunals. loosing out on her share of the continental shelf based on proportionality to the length of its North Sea
Protection thus understood would authorize the diplomatic agent to obstruct the application of the coastline. The Court had to decide the principles and rules of international law applicable to this
laws of the country whereas it is his duty to respect them Such a conception, moreover, would delimitation. In doing so, the court had to decide if the principles espoused by the parties were binding on
come into conflict with one of the most firmly established traditions of Latin-America, namely, non- the parties either through treaty law or customary international law.
intervention [for example, by Colombia into the internal affairs of another State like Peru]. Questions before the Court (as relevant to this post):
Is Germany under a legal obligation to accept the equidistance-special circumstances principle, contained Article 6 is one of those in respect of which, under the reservations article of the Convention (Article
in Article 6 of the Geneva Convention, either as a customary international law rule or on the basis of the 12) reservations may be made by any State on signing, ratifying or acceding for, speaking generally, it is a
Geneva Convention? characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making
The Courts Decision: The use of the equidistance method had not crystallised into customary law and unilateral reservations may, within certain limits, be admitted; whereas this cannot be so in the case of
was is not obligatory for the delimitation of the areas in the North Sea related to the present proceedings. general or customary law rules and obligations which, by their very nature, must have equal force for all
Relevant Findings of the Court: members of the international community, and cannot therefore be the subject of any right of unilateral
Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6, binding on exclusion exercisable at will by any one of them in its own favor. The normal inference would therefore
Germany? be that any articles that do not figure among those excluded from the faculty of reservation under Article
1. Article 6 of the Geneva Convention on the Continental Shelf states that unless the parties have agreed 12, were not regarded as declaratory of previously existing or emergent rules of law (see para 65 for a
on a method for delimitation or unless special circumstances exist, the equidistance method would apply counter argument and the courts careful differentiation)
(see Article 6). Germany has signed but not ratified the Geneva Convention, while Netherlands and Did the provisions in Article 6 on the equidistance principle attain the customary law status after the
Denmark are parties to the Convention. The latter two States argue that while Germany is not a party to Convention came into force?
the Convention (not having ratified it), she is still bound by Article 6 of the Convention because: 9. The court then examined whether the rule contained in Article 6 had become customary international
(1) by conduct, by public statements and proclamations, and in other ways, the Republic has law after the Convention entered into force either due the convention itself (i.e., if enough States had
unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the ratified the Convention in a manner to fulfil the criteria specified below), or because of subsequent State
conventional regime; or has recognized it as being generally applicable to the delimitation of continental practice (i.e. even if adequate number of States had not ratified the Convention one could find sufficient
shelf areas State practice to meet the criteria below). The court held that Article 6 of the Convention had not attained
(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as a customary law status (compare the 1958 Geneva Convention with the four Geneva Conventions on 1949
to cause other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken in the field of international humanitarian law in terms of its authority as a pronouncement of customary
up (the latter is called the principle of estoppel). international law).
2. The Court rejected the first argument. It stated that only a very definite very consistent course of 10. For a customary rule to emerge the court held that it needed: (1) very widespread and representative
conduct on the part of a State would allow the court to presume that a State had somehow become bound participation in the convention, including States whose interests were specially affected (i.e. generality);
by a treaty (by a means other than in a formal manner: i.e. ratification) when the State was at all times and (2) virtually uniform practice (i.e. consistent and uniform usage) undertaken in a manner that
fully able and entitled to accept the treaty commitments in a formal manner. The Court held that demonstrates (3) a general recognition of the rule of law or legal obligation (i.e. opinio juries). In the
Germany had not unilaterally assumed obligations under the Convention. The court also took notice of the North Sea Continental Shelf cases the court held that the passage of a considerable period of time was
fact that even if Germany ratified the treaty, she had the option of entering into a reservation on Article 6 unnecessary (i.e. duration) for the formation of a customary law.
following which that particular article would no longer be applicable to Germany (i.e. even if one were to Widespread and representative participation
assume that Germany had intended to become a party to the Convention, it does not presuppose that it 11. The court held that the first criteria was not met. The number of ratifications and accessions to the
would have also undertaken those obligations contained in Article 6). convention (39 States) were not adequately representative (including of coastal States i.e. those States
3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in 1980, whose rights are affected) or widespread.
discusses more fully the obligations of third States to treaties. It clearly stipulates that an obligation arises Duration
for a third State from a provision of a treaty only if (1) the parties to the treaty intend the provision to 12. The court held that duration taken for the customary law rule to emerge is not as important as
create this obligation for the third States; and (2) the third State expressly accepts that obligation in widespread and representative participation, uniform usage and the existence of an opinio juris.
writing (A. 35 of the VCLT). The VCLT was not in force when the ICJ deliberated on this case. However, Although the passage of only a short period of time (in this case, 3 5 years) is not necessarily, or of
as seen above, the ICJs position was consistent the VCLT. (See the relevant provisions of the Vienna itself, a bar to the formation of a new rule of customary international law on the basis of what was
Convention on the Law of Treaties). originally a purely conventional rule, an indispensable requirement would be that within the period in
4. The court held that the existence of a situation of estoppel would have allowed Article 6 to become question, short though it might be, State practice, including that of States whose interests are specially
binding on Germany but held that Germanys action did not support an argument for estoppel. The court affected, should have been both extensive and virtually uniform in the sense of the provision invoked and
also held that the mere fact that Germany may not have specifically objected to the equidistance principle should moreover have occurred in such a way as to show a general recognition that a rule of law or legal
as contained in Article 6 is not sufficient to state that the principle is now binding upon it. obligation is involved (text in brackets added).
5. In conclusion, the court held that Germany had not acted in any way to incur obligations contained in Opinio juris
Article 6 of the Geneva Convention. The equidistance special circumstances rule was not binding on 13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case) in so far as
Germany by way of treaty. those acts or omissions are done following a belief that the said State is obligated by law to act or refrain
Nature of the customary international law obligation: Is Germany bound by the provisions of Article 6 of from acting in a particular way. (For more on opinio juris click here).
the Geneva Convention by way of customary international law? 14. The Court examined 15 cases where States had delimited their boundaries using the equidistance
6. Netherlands and Denmark argued that Article 6 also reflected the accepted rule of general international method, after the Convention came into force (paras. 75 -77). The court concluded, even if there were
law on the subject of continental shelf delimitation and existed independently of the Convention. some State practice in favour of the equidistance principle the court could not deduct the necessary opinio
Therefore, they argued, Germany is bound by it by way of customary international law. juris from this State practice. The North Sea Continental Shelf Cases confirmed that both State
7. To decide if the equidistance principle bound Germany by way of customary international law, the court practice (the objective element) and opinio juris (the subjective element) are essential pre-requisites for
examined (1) the status of the principle contained in Article 6 as it stood when the Convention was being the formation of a customary law rule. This is consistent with Article 38 (1) (b) of the Statute of the
drawn up (2) and after the latter came into force. ICJ. The following explains the concept of opinio juris and the difference between customs (i.e. habits)
What was the customary law status of Article 6 at the time of drafting the Convention? and customary law:
8. The court held the principle of equidistance, as contained in Article 6, did not form a part of existing or Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried
emerging customary international law at the time of drafting the Convention. The Court supported this out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of
finding based on (1) the hesitation expressed by the drafters of the Convention International Law a rule of law requiring it. The need for such a belief, i.e, the existence of a subjective element, is implicit
Commission on the inclusion of Article 6 (para. 62) and (2) the fact reservations to Article 6 was in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they
permissible under the Convention (Article 12). The court held: are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the
acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol,
which are performed almost invariably, but which are motivated only by considerations of courtesy, that it relied on an inherent right of collective self-defence guaranteed in A. 51 of the UN Charter by
convenience or tradition, and not by any sense of legal duty. providing, upon request, proportionate and appropriate assistance to Costa Rica, Honduras and El
15. The court concluded that the equidistance principle was not binding on Germany by way of treaty or Salvador in response to Nicaraguas alleged acts aggression against those countries (paras. 126, 128).
customary international law because, in the case of the latter, the principle had not attained a customary
international law status at the time of the entry into force of the Geneva Convention or thereafter. As such, Questions before the Court:
the court held that the use of the equidistance method is not obligatory for the delimitation of the areas Did the United States breach its customary international law obligation not to intervene in the affairs of
concerned in the present proceedings. 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 self-defence?
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?
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.
Case Concerning the Military and Paramilitary Activities In and Against Nicaragua The Court held that:
(Nicaragua vs United States), 1986, ICJ The prohibition on the use of force is found in Article 2(4) of the UN Charter and in customary
Overview: The case involved military and paramilitary activities conducted by the United States against international law.
Nicaragua from 1981 to 1984. In a controversial finding the court sub-classified the use of force as: (1) the most grave forms of the
Facts of the Case: use of force (i.e. those that constitute an armed attack) and (2) the less grave form (i.e. organizing,
In July 1979 the Government of President Somoza collapsed following an armed opposition led by instigating, assisting or participating in acts of civil strife and terrorist acts in another State when the
the Frente Sandinista de Liberacibn Nacional (FSLN) . The new government installed by FSLN acts referred to involve a threat or use of force not amounting to an armed attack).
began to meet armed opposition from supporters of the former Somoza Government and ex-members of The United States violated the customary international law prohibition on the use of force when it laid
the National Guard. The US initially supportive of the new government changed its attitude when, mines in Nicaraguan ports. It violated this prohibition when it attacked Nicaraguan ports, oil
according to the United States, it found that Nicaragua was providing logistical support and weapons to installations and a naval base (see below). The United States could justify its action on collective self-
guerrillas in El Salvador. In April 1981 it terminated United States aid to Nicaragua and in September defence, if certain criteria were met this aspect is discussed below.
1981, according to Nicaragua, the United States decided to plan and undertake activities directed against The United States violated the customary international law prohibition on the use of force when it
Nicaragua. assisted the contras by organizing or encouraging the organization of irregular forces and armed
The armed opposition to the new Government was conducted mainly by bands for incursion into the territory of another state and participated in acts of civil strifein
(1) Fuerza Democratica Nicaragense (FDN), which operated along the border with Honduras, and another State when these acts involved the threat or use of force.
(2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica, (see The supply of funds to the contras did not violate the prohibition on the use of force. Nicaragua argued
map of the region). Initial US support to these groups fighting against the Nicaraguan Government (called that the timing of the offensives against it was determined by the United States: i.e. an offensive could
contras) was covert. Later, the United States officially acknowledged its support (for example: In 1983 not be launched until the requisite funds were available. The Court held that it does not follow that
budgetary legislation enacted by the United States Congress made specific provision for funds to be used each provision of funds by the United States was made to set in motion a particular offensive, and that
by United States intelligence agencies for supporting directly or indirectly military or paramilitary that offensive was planned by the United States. The Court held further that while the arming and
operations in Nicaragua). training of the contras involved the threat or use of force against Nicaragua, the supply of funds, in it
Nicaragua also alleged that the United States is effectively in control of the contras, the United self, only amounted to an act of intervention in the internal affairs of Nicaragua (para 227) this aspect
States devised their strategy and directed their tactics and that they were paid for and directly controlled is discussed below.
by United States personal. Nicaragua also alleged that some attacks were carried out by United What is an armed attack?
States military with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua A controversial but interesting aspect of the Courts judgement was its definition of an armed attack. The
included the mining of Nicaraguan ports and attacks on ports, oil installations and a naval base. Nicaragua Court held that an armed attack included:
alleged that aircrafts belonging to the United States flew over Nicaraguan territory to gather intelligence, (1) action by regular armed forces across an international border; and
supply to the contras in the field and to intimidate the population. (2) the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which
The United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJs carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual
jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing, however, stated armed attack conducted by regular forces, or its (the States) substantial involvement therein
NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the absence of a report may be one of the factors indicating whether the State in question was itself convinced
Definition of Aggression. that it was acting in self-defence (See paras 200, 232 -236).
Mere frontier incidents are not considered as an armed attack unless because of its scale and effects it The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and
would have been classified as an armed attack if it was carried out by regular forces. Honduras in determining whether an armed attack was undertaken by Nicaragua against the three
Assistance to rebels in the form of provision of weapons or logistical support did not constitute an countries which in turn would necessitate self-defence (paras 230 236). The Court referred to
armed attack it can be regarded as a threat or use of force, or an intervention in the internal or external statements made by El Salvador, Costa Rica, Honduras and the United States before the Security
affairs of other States (see paras 195, 230). Council. None of the countries who were allegedly subject to an armed attack by Nicaragua (1)
Under Article 51 of the UN Charter and under CIL self-defence is only available against a use of declared themselves as a victim of an armed attack or request assistance from the United States in self-
force that amounts to an armed attack (para 211). defence at the time when the United States was allegedly acting in collective self-defence; and (2) the
NB: In in the Case Concerning Oil Platforms and the advisory opinion on the Legal Consequences of of United States did not claim that it was acting under Article 51 of the UN Charter and it did not report
the Construction of a Wall in the Occupied Palestinian Territory (hereinafter called the Palestine wall that it was so acting to the Security Council. The Court concluded that the United States cannot justify
case) the ICJ upheld the definition of armed attack proposed in the Nicaragua case. In the Palestinian its use of force as collective self-defence.
wall case, the attacks from which Israel was claiming self defence originated from non-State actors. The criteria with regard to necessity and proportionality, that is necessary when using force in
However, the Court held that Article 51s inherent right of self defence was available to one State only self-defence was also not fulfilled (para 237).
against another State (para 139). Judges Higgins, Buergenthal and Kooijmans opposed this narrow view. 3. The Court held that the United States breached its CIL obligation not to intervene in the affairs
Articles on State Responsibility, prepared by the International Law Commission, provided significant of another State when it trained, armed, equipped and financed the contra forces or encouraged,
guidance as to when acts of non-State actors may be attributed to States. These articles, together with supported and aided the military and paramilitary activities against Nicaragua.
recent State practice relating attacks on terrorists operating from other countries (see legal opinions The principle of non- intervention means that every State has a right to conduct its affairs without
surrounding the United States attack on Afghanistan), may have widened the scope of an armed attack, outside interference i.e it forbids States or groups of States to intervene directly or indirectly in
and consequently, the right of self defence, envisaged by the ICJ. internal or external affairs of other States. . This is a corollary of the principle of sovereign equality of
2. The Court held that the United States could not justify its military and paramilitary activities on States.
the basis of collective self-defence. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by
Customary international law allows for exceptions to the prohibition on the use of force including the the principle of State sovereignty to decide freely. One of these is the choice of a political, economic,
right to individual or collective self-defence (for a difference between the two forms of self defence, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses
click here). The United States, at an earlier stage of the proceedings, had asserted that the Charter itself methods of coercion in regard to such choices, which must remain free ones. The element of coercion,
acknowledges the existence of this customary international law right when it talks of the inherent which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the
right of a State under Article 51 of the Charter (para.193). case of an intervention which uses force, either in the direct form of military action, or in the indirect form
When a State claims that it used force in collective self-defence, the Court would look into two aspects: of support for subversive or terrorist armed activities within another State (para 205).
(1) whether the circumstances required for the exercise of self-defence existed and Nicaragua stated that the activities of the United States were aimed to overthrow the
(2) whether the steps taken by the State, which was acting in self-defence, corresponds to the requirements government of Nicaragua and to substantially damage the economy and weaken the political system to
of international law (i.e. did it comply with the principles of necessity and proportionality). coerce the Government of Nicaragua to accept various political demands of the United States. The
Several criteria must be met for a State to exercise the right of individual or collective self-defence: Court held:
(1) A State must have been the victim of an armed attack; first, that the United States intended, by its support of the contras, to coerce the Government of
(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an armed Nicaragua in respect of matters in which each State is permitted, by the principle of State sovereignty, to
attack took place nor not is done by the state who was subjected to the attack. A third State cannot exercise decide freely (see paragraph 205 above) ; and secondly that the intention of the contras themselves was to
a right of collective self-defence based its (the third States) own assessment]; and overthrow the present Government of Nicaragua The Court considers that in international law, if one
(3) In the case of collective self-defence the victim State must request for assistance (there is no rule State, with a view to the coercion of another State, supports and assists armed bands in that State whose
permitting the exercise of collective self-defence in the absence of a request by the State which regards purpose is to overthrow the government of that State, that amounts to an intervention by the one State in
itself as the victim of an armed attack). the internal affairs of the other, whether or not the political objective of the State giving such support and
(4) The State does not, under customary international law, have the same obligation as under Article 51 of assistance is equally far reaching.
the UN Charter to report to the Security Council that an armed attack happened but the absence of a The financial support, training, supply of weapons, intelligence and logistic support given by the
report may be one of the factors indicating whether the State in question was itself convinced that it was United States to the contras was a breach of the principle of non-interference. no such general right
acting in self-defence (see below). of intervention, in support of an opposition within another State, exists in contemporary international
At this point, the Court may consider whether in customary international law there is any law, even if such a request for assistance is made by an opposition group of that State (see para 246
requirement corresponding to that found in the treaty law of the United Nations Charter, by which the for more).
State claiming to use the right of individual or collective self-defence must report to an international body, However, in a controversial finding, the Court held that the United States did not devise the strategy,
empowered to determine the conformity with international law of the measures which the State is seeking direct the tactics of the contras or exercise control on them in manner so as to make their acts
to justify on that basis. Thus Article 51 of the United Nations Charter requires that measures taken by committed in violation of international law imputable to the United States (see in this
States in exercise of this right of self-defence must be immediately reported to the Security Council. As respect Determining US responsibility for contra operations under international law 81 AMJIL
the Court has observed above (paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in 86).T he Court concluded that a number of military and paramilitary operations of the contras were
customary international law, may well be so unencumbered with the conditions and modalities decided and planned, if not actually by United States advisers, then at least in close collaboration with
surrounding it in the treaty. Whatever influence the Charter may have had on customary international law them, and on the basis of the intelligence and logistic support which the United States was able to offer,
in these matters, it is clear that in customary international law it is not a condition of the lawfulness of the particularly the supply aircraft provided to the contras by the United States but not all contra
use of force in self-defence that a procedure so closely dependent on the content of a treaty commitment operations reflected strategy and tactics wholly devised by the United States.
and of the institutions established by it, should have been followed. On the other hand, if self-defence is In sum, the evidence available to the Court indicates that the various forms of assistance provided to the
advanced as a justification for measures which would otherwise be in breach both of the principle of contras by the United States have been crucial to the pursuit of their activities, but is insufficient to
customary international law and of that contained in the Charter, it is to be expected that the conditions of demonstrate their complete dependence on United States aid. On the other hand, it indicates that in the
the Charter should be respected. Thus for the purpose of enquiry into the customary law position, 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 2. The United States held that this reservation barred the Court from determining the case even on the
extent to which the United States made use of the potential for control inherent in that dependence. The basis of customary and general principles of international law because customary law provisions, on
Court already indicated that it has insufficient evidence to reach a finding on this point. It is a fortiori which Nicaragua relied on, were identical to provisions in treaties sought to be excluded. Because of the
unable to determine that the contra force may be equated for legal purposes with the forces of the United identical content, the United States argued, treaty provisions supervene and subsume the parallel
StatesThe Court has taken the view (paragraph 110 above) that United States participation, even if customary law provision (see below).
preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, 3. The Court disagreed. It held that multilateral treaty reservations could not preclude the Court from
the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still determining cases relying customary international law because the latter exists independently of treaty
insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of law.
attributing to the United States the acts committed by the contras in the course of their military or NB: The United States disagreed with the Courts determination to proceed with the case and refused to
paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and participate further, including at the merits stage (see the declaration made by the United States in this
even the general control by the respondent State over a force with a high degree of dependency on it, regard). Although the Court was barred from resorting to multilateral treaties, it referred to the latter,
would not in themselves mean, without further evidence, that the United States directed or enforced the including the UN Charter, to identify the existence, nature and scope of various customary law principles.
perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such Commentators criticised the Court for circumventing the multilateral reservation in this manner.
acts could well be committed by members of the contras without the control of the United States. For this The relationship between treaty law and customary international law
conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that 4. As we noted before, the United States argued that when customary international law and treaty law
that State had effective control of the military or paramilitary. contain the same content; the treaty law subsumes and supervenes customary international law. In other
Interesting, however, the Court also held that providing humanitarian aid to persons or forces in words, the existence of principles in the United Nations Charter precludes the possibility that similar
another country, whatever their political affiliations or objectives, cannot be regarded as unlawful rules might exist independently in customary international law, either because existing customary rules
intervention, or as in any other way contrary to international law (para 242). had been incorporated into the Charter, or because the Charter influenced the later adoption of customary
In the event one State intervenes in the affairs of another State, the victim State has a right to intervene rules with a corresponding content (para 174).
in a manner that is short of an armed attack (210). 5. In its response, the Court distinguished two situations:
While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a (a) Situations where the customary law principles were identical to treaty provisions; and
lesser degree of gravity cannot as the Court has already observed (paragraph 21 1 above). produce any (b) Situations where customary law and treaty law rights and obligations differed in respect of the same
entitlement to take collective countermeasures involving the use of force. The acts of which Nicaragua is subject matter.
accused, even assuming them to have been established and imputable to that State, could only have 6. In situations where customary law principles were identical to treaty provisions (reflected as (a) above),
justified proportionate counter-measures on the part of the State which had been the victim of these acts, the Court, quite correctly, disagreed with the view of the United States. It held that even if principles of
namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third customary international law are codified into treaties, the former continues to exist side by side with the
State, the United States, and particularly could not justify intervention involving the use of force. latter. For treaty parties, both customary and treaty law apply and if, for some reason, the treaty ceases to
4. The United States breached its customary international law obligation not to violate the apply the identical customary law provision continues to apply between them unaffected (see more on
sovereignty of another State when it directed or authorized its aircrafts to fly over Nicaraguan para 178).
territory and when it laid mines in the internal waters of Nicaragua and its territorial sea. 7. The fact that customary international law exists alongside treaty law was an argument brought by
The ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of the Norway and Denmark in the North Sea Continental Shelf Cases. In these cases, the two countries having
territorial sea or internal waters of Nicaragua by persons in the pay or acting ion the instructions of failed to attribute an obligation under Article 6 of the Geneva Conventions of 1958 to Germany, sought to
the United States and acting under its supervision with its logistical support. The United States did not bind Germany via customary international law. In this case the Court determined that Article 6 neither
issue any warning on the location or existence of mines and this resulted in injuries and increases in reflected customary law at the time of the codification, nor had it attained that status at the time of the
maritime insurance rates. determination. In the Nicaragua case, the Court relied on the North Sea Continental Shelf Cases to
The court found that the United States also carried out high-altitude reconnaissance flights over support the assertion that principles of customary international law can exist side by side with identical
Nicaraguan territory and certain low-altitude flights, complained of as causing sonic booms. treaty law provisions and the latter does not supervene the former in a manner where the former ceases to
The basic concept of State sovereignty in customary international law is found in Article 2(1) of the UN exist (para 177).
8. The Court also relied on Article 51 of the UN Charter to show that a treaty itself can recognise the
Charter. State sovereignty extends to a States internal waters, its territorial sea and the air space above
existence of customary international law on the same subject matter. The term inherent in Article 51
its territory. The United States violated customary international law when it laid mines in the territorial
recognised that customary law rights of self-defense existed alongside treaty provisions.
sea and internal waters of Nicaragua and when it carried out unauthorised overflights over Nicaraguan
9. Rules containing the same content could be treated differently in customary international law and in
airspace by aircrafts that belong to or was under the control of the United States.
treaty law. For example, treaty law may contain institutions or mechanisms to ensure the effective
Overview: The case involved military and paramilitary activities conducted by, or with the assistance of,
implementation of its provisions, including those that reflect customary law. One could take the Courts
the United States against Nicaragua from 1981 to 1984. Due to a multilateral treaty reservation of the
reading of Article 51 as an example. A State that exercises the right of self-defence under Article 51,
United States (hereinafter called the Vandenberg reservation), the Court was compelled to base its
according to the UN Charter, has an obligation to report the use of force immediately to the Security
findings only on customary and general principles of international law. As a result, the Nicaragua case
Council. The Court held that this was a treaty requirement and one that did not exist under customary law.
developed significant jurisprudence on clarifying customary international law on the use of force and
Interestingly, although the failure to report did not result in a breach of customary international law, the
non-intervention, elements necessary to form customary international law and the relationship between
Court indicated that the United States failure to observe this requirement contradicted her claim to be
the latter and treaty law. Controversial aspects of the decision included the courts methodology used to
acting in self defence (see paras 200, 235).
determine that the principle of non-intervention had attained customary law status, the courts reliance on
10. The Court discussed situations where customary international law and treaty law provisions were not
UN resolutions as a source of opinio juris and the courts reliance on multilateral treaties to determine
identical (see point (b) above). For example, the Court referred to the fact that concepts such and necessity
customary international law in face of the Vandenberg reservation.
and proportionality, or the definition of what constitutes an armed attack, are not found under Article 51,
The competence of the ICJ to give its determination based on customary international law
or the UN Charter, but in customary law. The Court concluded that (1) this proves that customary
1. The United States when accepting the compulsory jurisdiction of the ICJ (under Article 36(2) of the ICJ
international law continues to exist alongside treaty law and that (2) areas governed by the two sources of
Statute) entered into the Vandenberg reservation. This reservation barred the ICJ from using certain
law do not (always) overlap and the rules do not (always) have the same content.
multilateral treaties in the adjudication of the dispute.
the Charter, having itself recognized the existence of this right (inherent customary law right of self- Statements by State representatives.
defence under A. 51 of the UN Charter), does not go on to regulate directly all aspects of its content. For Obligations undertaken by participating States in international forums (the Court provided the example
example, it does not contain any specific rule whereby self-defence would warrant only measures which of the Conference on Security and Co-operation in Europe, Helsinki)
are proportional to the armed attack and necessary to respond to it, a rule well established in customary The International Law Commissions findings that a concept amounts to a customary law principle.
international law. Moreover, a definition of the armed attack which, if found to exist, authorises the Multilateral conventions.
exercise of the inherent right of self-defence, is not provided in the Charter, and is not part of treaty law. NB: The fact that the Court relied on resolutions of the United Nations to deduct opinio juris was subject
It cannot therefore be held that Article 51 is a provision which subsumes and supervenes customary to criticism. As you know, opinio juris is the subjective element necessary to form customary law. Opinio
international law. juris is reflected in instances where the State undertakes a particular practice because it believes that it is
11. In case of a divergence between treaty law and customary international law, for the parties to the legally bound to do so. Voting patterns in the United Nations are often guided by policy considerations
treaty, amongst themselves, the treaty provisions apply as lex specialis. The courts support for this over legal merits. The General Assemblys subject matter is more policy oriented than legal (for which we
principle can be found in paras 180 and 181. The Court, in conclusion, explained the relationship between have the 6th Committee). For example, when the United States voted for the Friendly Relations
the UN Charter and customary international law in the following manner: Declaration it stated on record its belief that the Declaration was only a statement of
However, so far from having constituted a marked departure from a customary international law which political intention and not an expression of the law. This is not to say that provisions on General
still exists unmodified, the Charter gave expression in this field (on the use of force and self defence) to Assembly Resolutions that guide the international community to act in a certain way may not eventually
principles already present in customary international law, and that law has in the subsequent four decades become binding international law (either by attaining customary law status or becoming codified into
developed under the influence of the Charter, to such an extent that a number of rules contained in the treaty law). It can, if there is adequate State practice and opinio juris. The argument is that opinio juris
Charter have acquired a status independent of it. The essential consideration is that both the Charter and cannot be said to exist based merely on a vote in favour of a non-binding resolution in the absence of an
the customary international law flow from a common fundamental principle outlawing the use of force in examination of subsequent consistent and general State practice (which, in turn, reflects or confirms
international relations. The differences which may exist between the specific content of each are not, in opinio juris).
the Courts view, such as to cause a judgment confined to the field of customary international law to be Customary international law relating to principles of non-intervention
ineffective or inappropriate (to the parties of the Charter who are bound by the Charter) (text in brackets 16. The Court held that Principles such as those of the non-use of force (para 191), non-intervention
added)(para 181). (para 192), respect for the independence and territorial integrity of States, right of collective self defence
The relationship between customary international law and jus cogens (para 193) and the freedom of navigation, continue to be binding as part of customary international law,
13. The court cited material presented by Nicaragua, the United States and the International Law despite the operation of provisions of conventional law in which they have been incorporated (text in
Commission to argue that the prohibition on the use of force contained in Article 2(4) of the UN Charter brackets added).
has attained the status of a jus cogens norm. The Court found this to be A further confirmation of the 17. The Courts finding that principle of non-intervention formed a part of customary international law
validity as customary international law of the principle of the prohibition of the use of force expressed in invited criticism from commentators, partly because they disagreed that the principle formed customary
Article 2, paragraph 4, of the Charter of the United Nations (para 190). international law and partly because of the Courts own contradictions in coming to its conclusions and
The necessary elements to determine the existence of customary international law inadequacy of analysis (see below). The Courts contradiction stems from this statement: The principle
14. The Court, similar to the North Sea Continental Shelf Case, considered both the subjective element of non-intervention involves the right of every sovereign State to conduct its affairs without outside
(opinio juris) and the objective element (State practice) as essential pre-requisites to the formation and interference; though examples of trespass against this principle are not infrequent, the Court considers
elucidation of a customary international law norm (para 207). The jurisprudence of the Nicaragua case that it is part and parcel of customary international law(emphasis added. Para 202).
contained an important clarification inconsistent State practice does not affect the formation or 18. The Court began its analysis with two questions: Notwithstanding the multiplicity of declarations by
continued existence of a customary principle so long as the inconsistency is justified as a breach of the States accepting the principle of non-intervention, there remain two questions: first, what is the exact
rule. content of the principle so accepted, and secondly, is the practice sufficiently in conformity with it for this
It is not to be expected that in the practice of States the application of the rules in question should have to be a rule of customary international law? The first question was discussed in a previous post and will
been perfect, in the sense that States should have refrained, with complete consistency, from the use of not be discussed here.
force or from intervention in each others internal affairs. 18. Although the question seemed to direct the Court towards identifying an existing custom, in its
The Court does not consider that, for a rule to be established as customary, the corresponding practice response the Court seemed to have already determined that the customary law prohibition of non-
must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary intervention existed. In the following passage the Court deliberates if, in contrast, a customary law right to
rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such intervention had evolved.
rules, and that instances of State conduct inconsistent with a given rule should generally have been treated There have been in recent years a number of instances of foreign intervention for the benefit of forces
as breaches of that rule, not as indications of the recognition of a new rule. opposed to the government of another State. The Court is not here concerned with the process of
If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by decolonisation It has to consider whether there might be indications of a practice illustrative of belief in
appealing to exceptions or justifications contained within the rule itself, then whether or not the States a kind of general right for States to intervene, directly or indirectly, with or without armed force, in
conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to support of an internal opposition in another State, whose cause appeared particularly worthy by reason of
weaken the rule. (para 186) the political and moral values with which it was identified. For such a general right to come into existence
15. The Nicaragua jurisprudence explained how one could deduct opinio juris from acts of State. The would involve a fundamental modification of the customary law principle of non-intervention. (paras
Court held that opinio juris could be deduced from: 206, 207).
the attitude of States towards certain General Assembly resolutions. For example, the Declaration on 19. The Court went on to hold, as before, that for a new customary rule to be formed, not only must the
Principles of International Law concerning Friendly Relations (hereafter called the Declaration on acts concerned amount to a settled practice, but they must be accompanied by the opinio juris sive
Friendly Relations). The Court held that: necessitates.
The effect of consent to the text of such resolutions cannot be understood as merely that of a reiteration The significance for the Court of cases of State conduct prima facie inconsistent with the principle of
or elucidation of the treaty commitment undertaken in the Charter. On the contrary, it may be understood non-intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel
as an acceptance of the validity of the rule or set of rules declared by the resolution by themselvesIt right or an unprecedented exception to the principle might, if shared in principle by other States, tend
would therefore seem apparent that the attitude referred to expresses an opinio juris respecting such rule towards a modification of customary international law. In fact however the Court finds that States have not
(or set of rules), to be thenceforth treated separately from the provisions, especially those of an justified their conduct by reference to a new right of intervention or a new exception to the principle of its
institutional kind, to which it is subject on the treaty-law plane of the Charter prohibition. The United States authorities have on some occasions clearly stated their grounds for
intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies prohibits the threat or use of force against another State. The Court held that the same prohibition on the
of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these use of force could be found under customary international law and as a jus cogens norm. The Court then
were statements of international policy, and not an assertion of rules of existing international law. went on to categorize the use of force under customary law as either a grave use of force (i.e. use of
20. The Court also noted that the United States has not sought to justify its intervention in Nicaragua on force amounting to an armed attack) or a less grave use of force (i.e. use of force that falls short of an
legal grounds, but had only justified it at a political level. The United States had not asserted for itself armed attack for example, the threat to use force). The Court, then, restricted the right of self-defense to
legal right of intervention in these circumstances. The Court, without further analysis into State practice, a situation where there had been a grave use of force (or an armed attack, as defined by the Court). If one
almost immediately proceeded to find that no such general right of intervention, in support of an were to hold that the relevant Charter principles were clear, precise and unambiguous, one could say this
opposition within another State, exists in contemporary international law. The Court concludes that acts divorced interpretation could result in customary law developing in a manner that is not in line with the
constituting a breach of the customary principle of non-intervention will also, if they directly or indirectly Charter and thereby creating separate rights/ regimes of law that govern the same subject matter. This is
involve the use of force, constitute a breach of the principle of non-use of force in international relations because, then, the two regimes would be irreconcilable. However, the fact remains that the Charter does
(para 209). leave room for interpretation for example, on the definition of an armed attack or on the use of force. In
Development of a parallel customary international law? cases of ambiguity, Article 31 of the Vienna Convention on the Law of Treaties directs us to look at, inter
In addition to the comments made above in italics, another interesting aspect of the judgment is that it alia, subsequent practice and any relevant rules of international law that maybe applicable. In other words,
sought to divorce customary international law obligation from the identical treaty obligation because of a treaty can be interpreted with the assistance of customary and general principles of international law. In
the jurisdictional bar to consider multilateral treaties. In its consideration of customary international law it this case, the development of customary law would also mean a potential development of ambiguous
developed certain principles independently of the treaty. For example, Article 2(4) of the UN Charter treaty law and a reconciliation of treaty and customary law provisions.