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#1. Qatar vs Bahrain

* Treaties. While treaties are generally in written form, there are writers who hold that even an
oral agreement can be binding. However, only written agreements that are new come under the
provisions of the Vienna Convention. No particular form is prescribed.

that the Minutes were only a record of negotiation and could not serve as a basis for the I.C.J.s
jurisdiction, both parties agreed that the letters constituted an international agreement with
binding force. International agreements do not take a single form under the Vienna Convention
on the Law of Treaties, and the Court has enforced this rule in the past.

Facts:

In this case, the Minutes not only contain the record of the meetings between the
parties, it also contained the reaffirmation of obligations previously agreed to and agreement
to allow the King of Saudi Arabia to try to find a solution to the dispute during a six-month
period, and indicated the possibility of the involvement of the I.C.J. The Minutes stipulated
commitments to which the parties agreed, thereby creating rights and obligations in
international law.

On 8 July 1991 Qatar filed in the Registry of the Court an Application instituting
proceedings against Bahrain in respect of certain disputes between the two States relating to
"sovereignty over the Hawar islands, sovereign rights over the shoals of Dibal and Qit'at
Jaradah, and the delimitation of the maritime areas of the two States". Qatar contended that
the Court had jurisdiction to entertain the dispute by virtue of two "agreements" concluded
between the Parties in December 1987 and December 1990 respectively, the subject and scope
of the commitment to the Court's jurisdiction being determined, according to the Applicant, by
a formula proposed by Bahrain to Qatar on 26 October 1988 and accepted by Qatar in
December 1990 (hereinafter referred to as the "Bahraini formula"). By letters of 14 July and
18 August 1991, Bahrain contested the basis of jurisdiction invoked by Qatar.
By a Judgment of 1 July 1994, the Court found that the exchanges of letters between
the King of Saudi Arabia and the Amir of Qatar of 19 and 21 December 1987, and between the
King of Saudi Arabia and the Amir of Bahrain of 19 and 26 December 1987, and the document
headed "Minutes" and signed at Doha on 25 December 1990 by the Ministers for Foreign
Affairs of Bahrain, Qatar and Saudi Arabia, were international agreements creating rights and
obligations for the Parties; and that, by the terms of those agreements, the Parties had
undertaken to submit to the Court the whole of the dispute between them, as circumscribed by
the Bahraini formula.
The Court decided to afford the Parties the opportunity to submit to it the whole of
the dispute. After each of the Parties had filed a document on the question within the timelimit fixed, the Court, by a Judgment of 15 February 1995, found that it had jurisdiction to
adjudicate upon the dispute between Qatar and Bahrain which had been submitted to it; that it
was now seised of the whole of the dispute; and that the Application of the State of Qatar as
formulated on 30 November 1994 was admissible. In the course of the written proceedings on
the merits, Bahrain challenged the authenticity of 82 documents produced by Qatar as annexed
to its pleadings.
Arguments: On the part of the Bahrains (D) Foreign Minister, he argued that no agreement
existed because he never intended to enter an agreement fails on the grounds that he signed
documents creating rights and obligations for his country. Also, Qatars (P) delay in applying to
the United Nations Secretariat does not indicate that Qatar (P) never considered the Minutes to
be an international agreement as Bahrain (D) argued. However, the registration and nonregistration with the Secretariat does not have any effect on the validity of the agreement.
Issue:
Whether or not an international agreement creating rights and obligations can be
constituted by the signatories to the minutes of meetings and letters exchanged.
Held:
Yes. An international agreement creating rights and obligations can be constituted by
the signatories to the minutes of meetings and letters exchanged. Though Bahrain (D) argued

This is the basis therefore of the existence of international agreement.

Additional information: There is no doubt that language plays a vital role in
influencing a courts decision as to whether an agreement has been entered into and in this
particular case, the language was the main focus of the I.C.J and it was the contents of the
Minutes that persuaded the I.C.J. to reject the Bahrain foreign ministers claim that he did not
intend to enter into an agreement. Where this is compared to general U.S. contract law,
where a claim by one of the parties that no contract existed because there was no meeting of
the minds might be the ground upon which a U.S. court would consider whether a contract did
exist with more care and thought than the I.C.J. gave the foreign minister of Bahrains claims.

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#3. NUCLEAR TESTS CASE (NEW ZEALAND v. FRANCE)

Judgment of 20 December 1974
FACTS: France was a signatory to the Nuclear Test Ban Treaty and thus, continued to conduct
tests in the South Pacific until 1973. Australia and New Zealand instituted proceedings against
France to order it to cease from carrying out such tests. However, the case was removed from
the Courts list without a decision due to Frances statements contained in a communique
which was issued by the Office of the President of the French Republic on 8 June 1974 and
transmitted in particular to New Zealand: ". . . in view of the stage reached in carrying out the
French nuclear defence programme France will be in a position to pass on to the stage of
underground explosions as soon as the series of tests planned for this summer is completed".
Further statements are contained in a Note from the French Embassy in Wellington (10 June), a
letter from the President of France to the Prime Minister of New Zealand (1 July), a press
conference given by the President of the Republic (25 July), a speech made by the Minister for
Foreign Affairs in the United Nations General Assembly (25 September) and a television
interview and press conference by the Minister for Defence (16 August and 11 October). The
Court considers that these statements convey an announcement by France of its intention to
cease the conduct of atmospheric nuclear tests following the conclusion of the 1974 series.
ISSUE: WON the unilateral declaration made by France creates legal obligations.
RULING: It is well recognized that declarations made by way of unilateral acts, concerning legal
or factual situations, may have the effect of creating legal obligations. Nothing in the nature of
a quid pro quo, nor any subsequent acceptance, nor even any reaction from other States is
required for such declaration to take effect. Neither is the question of form decisive. The
intention of being bound is to be ascertained by an interpretation of the act. The binding
character of the undertaking results from the terms of the act and is based on good faith
interested States are entitled to require that the obligation be respected.
In the present case, New Zealand, while recognizing the possibility of the dispute being resolved
by a unilateral declaration on the part of France, has stated that, in its view, the possibility of
further atmospheric tests has been left open, even after the French statements mentioned
above. The Court must, however, form its own view of the meaning and scope intended to be
given to these unilateral declarations. Having regard to their intention and to the circumstances
in which they were made, they must be held to constitute an engagement of the French State.
France has conveyed to the world at large, including New Zealand, its intention effectively to
terminate its atmospheric tests. It was bound to assume that other States might take note of
these statements and rely on their being effective. It is true that France has not recognized that
it is bound by any rule of international law to terminate its tests, but this does not affect the
legal consequences of the statements in question, the unilateral undertaking resulting from
them cannot be interpreted as having been made in implicit reliance on an arbitrary power of
reconsideration.
Thus the Court faces a situation in which the objective of New Zealand has in effect been
accomplished, inasmuch as the Court finds that France has undertaken the obligation to hold
no further nuclear tests in the atmosphere in the South Pacific. New Zealand has sought an
assurance from France that the tests would cease and France, on its own initiative, has made a
series of statements to the effect that they will cease. The Court concludes that France has
assumed an obligation as to conduct, concerning the effective cessation of the tests, and the

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fact that New Zealand has not exercised its right to discontinue the proceedings does not
prevent the Court from making its own independent finding on the subject. As a court of law, it
is called upon to resolve existing disputes between States: these disputes must continue to
exist at the time when the Court makes its decision. In the present case, the dispute having
disappeared, the claim no longer has any object and there is nothing on which to give
judgment.

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#4. AIR FRANCE v. SAKS

470 U.S. 392 (1985)

(Whether the normal operation of a normal pressurization system could qualify as an accident
under Article 17)

Article 17 of the Warsaw Convention makes air carriers liable for injuries sustained
by a passenger "if the accident which caused the damage so sustained took place on board the
aircraft or in the course of any of the operations of embarking or disembarking." We granted
certiorari to resolve a conflict among the Courts of Appeals as to the proper definition of the
word "accident" as used in this international air carriage treaty.

Ruling:
No.
(No.)
Air France is liable to a passenger under the terms of the Warsaw Convention only if
the passenger proves that an "accident" was the cause of her injury.

Facts:
On November 16, 1980, respondent Valerie Saks boarded an Air France jetliner in
Paris for a 12-hour flight to Los Angeles. The flight went smoothly in all respects until, as the
aircraft descended to Los Angeles, Saks felt severe pressure and pain in her left ear. The pain
continued after the plane landed, but Saks disembarked without informing any Air France
crewmember or employee of her ailment. Five days later, Saks consulted a doctor who
concluded that she had become permanently deaf in her left ear. Saks filed suit against Air
France in California state court, alleging that her hearing loss was caused by negligent
maintenance and operation of the jetliner's pressurization system.
After extensive discovery, Air France moved for summary judgment on the ground
that respondent could not prove that her injury was caused by an "accident" within the
meaning of the Warsaw Convention. The term "accident," according to Air France, means an
"abnormal, unusual or unexpected occurrence aboard the aircraft." All the available evidence,
including the post flight reports, pilot's affidavit, and passenger testimony, indicated that the
aircraft's pressurization system had operated in the usual manner. Accordingly, the airline
contended that the suit should be dismissed because the only alleged cause of respondent's
injury - normal operation of a pressurization system - could not qualify as an "accident."
In her opposition to the summary judgment motion, Saks acknowledged that "[t]he
sole question of law presented . . . by the parties is whether a loss of hearing proximately
caused by normal operation of the aircraft's pressurization system is an accident within the
meaning of Article 17 of the Warsaw Convention . . . ." She argued that "accident" should be
defined as a "hazard of air travel," and that her injury had indeed been caused by such a hazard.
Relying on precedent which defines the term "accident" in Article 17 as an "unusual
or unexpected" happening, the District Court granted summary judgment to Air France.
The Court of Appeals reversed the District Courts judgment. The court found a
definition of "accident" consistent with this history and policy in Annex 13 to the Convention on
International Civil Aviation, "an occurrence associated with the operation of an aircraft which
takes place between the time any person boards the aircraft with the intention of flight and all
such persons have disembarked . . . ." Normal cabin pressure changes qualify as an "accident"
under this definition.
Issue:
Whether respondents injury was caused by an accident under Article 17 of the Warsaw
Convention (thereby making petitioner liable thereto)

The narrow issue presented is whether respondent can meet this burden by showing
that her injury was caused by the normal operation of the aircraft's pressurization system. The
proper answer turns on interpretation of a clause in an international treaty to which the United
States is a party.
"[T]reaties are construed more liberally than private agreements, and to ascertain
their meaning we may look beyond the written words to the history of the treaty, the
negotiations, and the practical construction adopted by the parties." The analysis must begin,
however, with the text of the treaty and the context in which the written words are used.
A.
Article 17 of the Warsaw Convention establishes the liability of international air
carriers for harm to passengers. Article 18 contains parallel provisions regarding liability for
damage to baggage. The governing text of the Convention is in the French language, and we
accordingly set forth the French text of the relevant part of Articles 17 and 18 in the margin.
The official American translation of this portion of the text, which was before the Senate when
it ratified the Convention in 1934, reads as follows:
Article17. "The carrier shall be liable for damage sustained in the event of the death
or wounding of a passenger or any other bodily injury suffered by a passenger, if the
accident which caused the damage so sustained took place on board the aircraft or in
the course of any of the operations of embarking or disembarking.
Article18. "The carrier shall be liable for damage sustained in the event of the
destruction or loss of, or of damage to, any checked baggage or any goods, if the
occurrence which caused the damage so sustained took place during the
transportation by air."
Two significant features of these provisions stand out in both the French and the
English texts. First, Article 17 imposes liability for injuries to passengers caused by an
"accident," whereas Article 18 imposes liability for destruction or loss of baggage caused by an
"occurrence." This difference in the parallel language of Articles 17 and 18 implies that the
drafters of the Convention understood the word "accident" to mean something different than
the word "occurrence," for they otherwise logically would have used the same word in each
article. The language of the Convention accordingly renders suspect the opinion of the Court of
Appeals that "accident" means "occurrence."
Second, the text of Article 17 refers to an accident which caused the passenger's
injury, and not to an accident which is the passenger's injury.

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In Article 17, the drafters of the Warsaw Convention apparently did make an attempt
to discriminate between "the cause and the effect"; they specified that air carriers would be
liable if an accident caused the passenger's injury. The text of the Convention thus implies
that, however we define "accident," it is the cause of the injury that must satisfy the
definition rather than the occurrence of the injury alone. American jurisprudence has long
recognized this distinction between an accident that is the cause of an injury and an injury that
is itself an accident.

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Any injury is the product of a chain of causes, and we require only that the passenger
be able to prove that some link in the chain was an unusual or unexpected event external to the
passenger. Until Article 17 of the Warsaw Convention is changed by the signatories, it cannot
be stretched to impose carrier liability for injuries that are not caused by accidents. It remains
"[o]ur duty . . . to enforce the . . . treaties of the United States, whatever they might be, and . . .
the Warsaw Convention remains the supreme law of the land."
The judgment of the Court of Appeals is reversed.

While the text of the Convention gives these two clues to the meaning of "accident,"
it does not define the term. To determine the meaning of the term "accident" in Article 17 we
must consider its French legal meaning. We look to the French legal meaning for guidance as
to these expectations because the Warsaw Convention was drafted in French by continental
jurists.
A survey of French cases and dictionaries indicates that the French legal meaning of
the term "accident" differs little from the meaning of the term in Great Britain, Germany, or the
United States. Thus, while the word "accident" is often used to refer to the event of a person's
injury, it is also sometimes used to describe a cause of injury, and when the word is used in
this latter sense, it is usually defined as a fortuitous, unexpected, unusual, or unintended
event.
B.
This interpretation of Article 17 is consistent with the negotiating history of the
Convention, the conduct of the parties to the Convention, and the weight of precedent in
foreign and American courts. In interpreting a treaty it is proper, of course, to refer to the
records of its drafting and negotiation.
The records of the negotiation of the Convention accordingly support what is evident
from its text: A passenger's injury must be caused by an accident, and an accident must mean
something different than an "occurrence" on the plane. Like the text of the Convention,
however, the records of its negotiation offer no precise definition of "accident."
In determining precisely what causes can be considered accidents, we "find the
opinions of our sister signatories to be entitled to considerable weight." A French court
observed that the term "accident" in Article 17 of the Warsaw Convention embraces causes of
injuries that are fortuitous or unpredictable. European legal scholars have generally construed
the word "accident" in Article 17 to require that the passenger's injury be caused by a sudden
or unexpected event other than the normal operation of the plane.
**We conclude that liability under Article 17 of the Warsaw Convention arises only
if a passenger's injury is caused by an unexpected or unusual event or happening that is
external to the passenger. This definition should be flexibly applied after assessment of all the
circumstances surrounding a passenger's injuries. In cases where there is contradictory
evidence, it is for the trier of fact to decide whether an "accident" as here defined caused the
passenger's injury. But when the injury indisputably results from the passenger's own internal
reaction to the usual, normal, and expected operation of the aircraft, it has not been caused
by an accident, and Article 17 of the Warsaw Convention cannot apply. The judgment of the
Court of Appeals in this case must accordingly be reversed.

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#5. FISHERIES JURISDICTION CASE

(FEDERAL REPUBLIC OF GERMANY v. ICELAND)

Iceland and to the danger of still further exploitation because of an increase in the catching
capacity of fishing fleets

A fundamental change of circumstances which has occurred with regard to those

existing at the time of the conclusion of a treaty

Moreover, in order that a change of circumstances may give rise to a ground for
invoking the termination of a treaty it is also necessary that it should have resulted in a radical
transformation of the extent of the obligations still to be performed. The change must have
increased the burden of the obligations to be executed to the extent of rendering the
performance something essentially different from that originally undertaken.

FACTS
The Federal Republic of Germany instituted a proceedings against the Republic of
Iceland in respect of a dispute concerning the then proposed extension by the Government of
Iceland of its fisheries jurisdiction. In order to found the jurisdiction of the Court, the
Application relied on Article 36, paragraph 1, of the Statute of the Court, on an Exchange of
Notes between the Government of the Federal Republic and the Government of Iceland dated
19 July 1961
The Exchange of Notes of 1961 contains the provision:
"The Government of the Republic of Iceland shall continue to work for the
implementation of the Althing Resolution of 5 May 1959, regarding the extension of the fishery
jurisdiction of Iceland. However, it shall give the Government of the Federal Republic of
Germany six months' notice of any such extension; in case of a dispute relating to such an
extension, the matter shall, at the request of either Party, be referred to the International
Court of Justice
Iceland was not willing to submit to the jurisdiction of the ICJ by not submitting any
pleading or appointing an agent. The Government of Iceland is basing itself on the principle of
termination of a treaty by reason of change of circumstances. International law admits that a
fundamental change in the circumstances which determined the parties to accept a treaty, if it
has resulted in a radical transformation of the extent of the obligations imposed by it, may,
under certain conditions, afford the party affected a ground for invoking the termination or
suspension of the treaty.
This principle, and the conditions and exceptions to which it is subject, have been
embodied in Article 62 of the Vienna Convention on the Law of Treaties, which may in many
respects be considered as a codification of existing customary law on the subject of the
termination of a treaty relationship on account of change of circumstances. Such change in
circumstances terminated its obligation to submit such dispute to the ICJ.
ISSUE
Whether or not ICJ has jurisdiction over the dispute?
RULING
Yes, ICJ has jurisdiction
One of the basic requirements embodied in that Article is that the change of
circumstances must have been a fundamental one. In this respect the Government of Iceland
has, with regard to developments in fishing techniques, referred in an officia1 publication on
Fisheries Jurisdiction in Iceland, enclosed with the Foreign Minister's letter to the Registrar of
27 June 1972, to the increased exploitation of the fishery resources in the seas surrounding

In respect of the obligation with which the Court is here concerned, this condition is
wholly unsatisfied; the change of circumstances alleged by Iceland cannot be said to have
transformed radically the extent of the jurisdictional obligation which is imposed in the 1961
Exchange of Notes. The compromissory clause enabled either of the parties to submit to the
Court any dispute between them relating to an extension of Icelandic fisheries jurisdiction in
the waters above its continental shelf beyond the 12-mile limit. The present dispute is exactly
of the character anticipated in the compromissory clause of the Exchange of Notes. Not only
has the jurisdictional obligation not been radically transformed in its extent; it has remained
precisely what it was in 1961.
The Applicant, in the oral proceedings, advanced the contention that the assertion of
changed circumstances does not, ipso facto, release the State invoking them from its treaty
obligation unless it has been established, either by consent of the other party or by judicial or
other settlement between the parties, that the changed circumstances are of a kind which
justifies release from existing treaty obligations.
In the present case, the procedural complement to the doctrine of changed
circumstances is provided for in the 1961 Exchange of Notes, which specifically calls upon the
parties to have recourse to the Court in the event of a dispute relating to Iceland's extension of
fisheries jurisdiction. Furthermore, any question as to the jurisdiction of the Court, deriving
from an alleged lapse through changed circumstances, is resolvable through the accepted
judicial principle enshrined in Article 36, paragraph 6, of the Court's Statute, which provides
that "in the event of a dispute as to whether the Court has jurisdiction, the matter shall be
settled by the decision of the Court".
In this case such a dispute obviously exists, as can be seen from Iceland's
communications to the Court, and to the other Party, even if Iceland has chosen not to appoint
an Agent, file a Counter-Memorial or submit preliminary objections to the Court's jurisdiction;
and Article 53 of the Statute both entitles the Court and, in the present proceedings, requires it
to pronounce upon the question of its jurisdiction. This it has now done with binding force.

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#6. LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF

SOUTH
AFRICA
IN
NAMIBIA
(SOUTH-WEST
AFRICA)
NOTWITHSTANDING SECURITY COUNCIL RESOLUTION 276 (1970)
Advisory Opinion of 21 June 1971
In its advisory opinion on the question put by the Security Council of the United
Nations, "What are the legal consequences for States of the continued presence of South
Africa in Namibia notwithstanding Security Council resolution 276 (1970)?", the Court was of
opinion,
by 13 votes to 2,
(1) that, the continued presence of South Africa in Namibia being illegal, South
Africa is under obligation to withdraw its administration from Namibia immediately and thus
put an end to its occupation of the Territory;
by 11 votes to 4,
(2) that States Members of the United Nations are under obligation to recognize the
illegality of South Africa's presence in Namibia and the invalidity of its acts on behalf of or
concerning Namibia, and to refrain from any acts and in particular any dealings with the
Government of South Africa implying recognition of the legality of, or lending support or
assistance to, such presence and administration;
(3) that it is incumbent upon States which are not Members of the United Nations to
give assistance, within the scope of subparagraph (2) above, in the action which has been taken
by the United Nations with regard to Namibia.
Objections against the Court's Dealing with the Question
(paras. 19-41 of the Advisory Opinion)
The Government of South Africa contended that the Court was not competent to
deliver the opinion, because Security Council resolution 284 (1970) was invalid for the following
reasons: (a) two permanent members of the Council abstained during the voting (Charter of the
United Nations, Art. 27, para. 3); (b) as the question related to a dispute between South Africa
and other Members of the United Nations, South Africa should have been invited to participate
in the discussion (Charter, Art. 32) and the proviso requiring members of the Security Council
which are parties to a dispute to abstain from voting should have been observed (Charter, Art.
27, para. 3).
The Court points out that (a) for a long period the voluntary abstention of a
permanent member has consistently been interpreted as not constituting a bar to the adoption
of resolutions by the Security Council; (b) the question of Namibia was placed on the agenda of
the Council as a situation and the South African Government failed to draw the Council's
attention to the necessity in its eyes of treating it as a dispute.
In the alternative the Government of South Africa maintained that even if the Court
had competence it should nevertheless, as a matter of judicial propriety, refuse to give the
opinion requested, on account of political pressure to which it was contended, the Court had
been or might be subjected. On 8 February 1971, at the opening of the public sittings, the
President of the Court declared that it would not be proper for the Court to entertain those
observations, bearing as they did on the very nature of the Court as the principal judicial organ
of the United Nations, an organ which, in that capacity, acts only on the basis of law,
independently of all outside influences or interventions whatsoever.

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The Government of South Africa also advanced another reason for not giving the
advisory opinion requested: that the question was in reality contentious, because it related to
an existing dispute between South Africa and other States. The Court considers that it was
asked to deal with a request put forward by a United Nations organ with a view to seeking legal
advice on the consequences of its own decisions.
The fact that, in order to give its answer, the Court might have to pronounce on legal
questions upon which divergent views exist between South Africa and the United Nations does
not convert the case into a dispute between States. (There was therefore no necessity to apply
Article 83 of the Rules of Court, according to which, if an advisory opinion is requested upon a
legal question "actually pending between two or more States", Article 31 of the Statute, dealing
with judges ad hoc, is applicable; the Government of South Africa having requested leave to
choose a judge ad hoc, the Court heard its observations on that point on 27 January 1971 but,
in the light of the above considerations, decided by the Order of 29 January 1971 not to accede
to that request.)
In sum, the Court saw no reason to decline to answer the request for an advisory opinion.
History of the Mandate
(paras. 42-86 of the Advisory Opinion)
Refuting the contentions of the South African Government and citing its own
pronouncements in previous proceedings concerning South West Africa (Advisory Opinions of
1950, 1955 and 1956; Judgment of 1962), the Court recapitulates the history of the Mandate.
The mandates system established by Article 22 of the Covenant of the League of
Nations was based upon two principles of paramount importance: the principle of nonannexation and the principle that the well-being and development of the peoples concerned
formed a sacred trust of civilisation. Taking the developments of the past half century into
account, there can be little doubt that the ultimate objective of the sacred trust was selfdetermination and independence. The mandatory was to observe a number of obligations, and
the Council of the League was to see that they were fulfilled. The rights of the mandatory as
such had their foundation in those obligations.
When the League of Nations was dissolved, the raison d'etre and original object of
these obligations remained. Since their fulfilment did not depend on the existence of the
League, they could not be brought to an end merely because the supervisory organ had ceased
to exist. The Members of the League had not declared, or accepted even by implication, that
the mandates would be cancelled or lapse with the dissolution of the League.
The last resolution of the League Assembly and Article 80, paragraph 1, of the United
Nations Charter maintained the obligations of mandatories. The International Court of Justice
has consistently recognized that the Mandate survived the demise of the League, and South
Africa also admitted as much for a number of years. Thus the supervisory element, which is an
essential part of the Mandate, was bound to survive. The United Nations suggested a system of
supervision which would not exceed that which applied under the mandates system, but this
proposal was rejected by South Africa.

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Resolutions by the General Assembly and the Security Council

(paras. 87-116 of the Advisory Opinion)
Eventually, in 1966, the General Assembly of the United Nations adopted resolution
2145 (XXI), whereby it decided that the Mandate was terminated and that South Africa had no
other right to administer the Territory.
Subsequently the Security Council adopted various resolutions including resolution
276 (1970) declaring the continued presence of South Africa in Namibia illegal.
Objections challenging the validity of these resolutions having been raised, the Court
points out that it does not possess powers of judicial review or appeal in relation to the United
Nations organs in question. Nor does the validity of their resolutions form the subject of the
request for advisory opinion. The Court nevertheless, in the exercise of its judicial function,
and since these objections have been advanced, considers them in the course of its reasoning
before determining the legal consequences arising from those resolutions.
It first recalls that the entry into force of the United Nations Charter established a
relationship between all Members of the United Nations on the one side, and each mandatory
Power on the other, and that one of the fundamental principles governing that relationship is
that the party which disowns or does not fulfill its obligations cannot be recognized as retaining
the rights which it claims to derive from the relationship. Resolution 2145 (XXI) determined that
there had been a material breach of the Mandate, which South Africa had in fact disavowed.
It has been contended (a) that the Covenant of the League of Nations did not confer
on the Council of the League power to terminate a mandate for misconduct of the mandatory
and that the United Nations could not derive from the League greater powers than the latter
itself had, (b) that, even if the Council of the League had possessed the power of revocation of
the Mandate, it could not have been exercised unilaterally but only in co-operation with the
Mandatory; (c) that resolution 2145 (XXI) made pronouncements which the General Assembly,
not being a judicial organ, was not competent to make; (d) that a detailed factual investigation
was called for (e) that one part of resolution 2145 (XXI) decided in effect a transfer of territory.
The Court observes (a) that, according to a general principle of international law
(incorporated in the Vienna Convention on the Law of Treaties), the right to terminate a treaty
on account of breach must be presumed to exist in respect of all treaties, even if
unexpressed; (b) that the consent of the wrongdoer to such a form of termination cannot be
required; (c) that the United Nations, as a successor to the League, acting through its
competent organ, must be seen above all as the supervisory institution competent to
pronounce on the conduct of the Mandatory; (d) that the failure of South Africa to comply
with the obligation to submit to supervision cannot be disputed; (e) that the General
Assembly was not making a finding on facts, but formulating a legal situation; it would not be
correct to assume that, because it is in principle vested with recommendatory powers, it is
debarred from adopting, in special cases within the framework of its competence, resolutions
which make determinations or have operative design.
The General Assembly, however, lacked the necessary powers to ensure the
withdrawal of South Africa from the Territory and therefore, acting in accordance with Article
11, paragraph 2, of the Charter, enlisted the co-operation of the Security Council. The Council

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for its part, when it adopted the resolutions concerned, was acting in the exercise of what it
deemed to be its primary responsibility for the maintenance of peace and security. Article 24 of
the Charter vests in the Security Council the necessary authority. Its decisions were taken in
conformity with the purposes and principles of the Charter, under Article 25 of which it is for
member States to comply with those decisions, even those members of the Security Council
which voted against them and those Members of the United Nations who are not members of
the Council.
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(paras. 117-127 and 133 of the Advisory Opinion)
The Court stresses that a binding determination made by a competent organ of the
United Nations to the effect that a situation is illegal cannot remain without consequence.
South Africa, being responsible for having created and maintained that situation,
has the obligation to put an end to it and withdraw its administration from the Territory. By
occupying the Territory without title, South Africa incurs international responsibilities arising
from a continuing violation of an international obligation. It also remains accountable for any
violations of the rights of the people of Namibia, or of its obligations under international law
towards other States in respect of the exercise of its powers in relation to the Territory.
The member States of the United Nations are under obligation to recognize the
illegality and invalidity of South Africa's continued presence in Namibia and to refrain from
lending any support or any form of assistance to South Africa with reference to its occupation
of Namibia. The precise determination of the acts permitted - what measures should be
selected, what scope they should be given and by whom they should be applied - is a matter
which lies within the competence of the appropriate political organs of the United Nations
acting within their authority under the Charter.
Thus it is for the Security Council to determine any further measures consequent
upon the decisions already taken by it. The Court in consequence confines itself to giving
advice on those dealings with the Government of South Africa which, under the Charter of
the United Nations and general international law, should be considered as inconsistent with
resolution 276 (1970) because they might imply recognizing South Africa's presence in Namibia
as legal:
(a) Member States are under obligation (subject to (d) below) to abstain from
entering into treaty relations with South Africa in all cases in which the Government of South
Africa purports to act on behalf of or concerning Namibia. With respect to existing bilateral
treaties member States must abstain from invoking or applying those treaties or provisions of
treaties concluded by South Africa on behalf of or concerning Namibia which involve active
intergovernmental co-operation. With respect to multilateral treaties, the same rule cannot be
applied to certain general conventions such as those with humanitarian character, the nonperformance of which may adversely affect the people of Namibia: it will be for the competent
international organs to take specific measures in this respect.
(b) Member States are under obligation to abstain from sending diplomatic or special
missions to South Africa including in their jurisdiction the territory of Namibia, to abstain from
sending consular agents to Namibia, and to withdraw any such agents already there; and to

[PIL]

make it clear to South Africa that the maintenance of diplomatic or consular relations does not
imply any recognition of its authority with regard to Namibia.
(c) Member States are under obligation to abstain from entering into economic and
other forms of relations with South Africa on behalf of or concerning Namibia which may
entrench its authority over the territory.
(d) However, non-recognition should not result in depriving the people of Namibia of
any advantages derived from international co-operation. In particular, the illegality or invalidity
of actsperformed by the Government of South Africa on behalf of or concerning Namibia after
the termination of the Mandate cannot be extended to such acts as the registration of births,
deaths and marriages.
As to States not members of the United Nations, although they are not bound by
Articles 24 and 95 of the Charter, they have been called upon by resolution 276 (1970) to give
assistance in the action which has been taken by the United Nations with regard to Namibia. In
the view of the Court, the termination of the Mandate and the declaration of the illegality of
South Africa's presence in Namibia are opposable to all States in the sense of barring erga
omnes the legality of the situation which is maintained in violation of international law.
In particular, no State which enters into relations with South Africa concerning
Namibia may expect the United Nations or its Members to recognize the validity or effects of
any such relationship. The Mandate having been terminated by a decision of the international
organization in which the supervisory authority was vested, it is for non-member States to act
accordingly. All States should bear in mind that the entity injured by the illegal presence of
South Africa in Namibia is a people which must look to the international community for
assistance in its progress towards the goals for which the sacred trust was instituted.
Accordingly, the Court has given the replies reproduced above on page 1.
Propositions by South Africa concerning the Supply of Further Factual Information and the
Possible Holding of a Plebiscite
(paras. 128-132 of the Advisory Opinion)
The Government of South Africa had expressed the desire to supply the Court with
further factual information concerning the purposes and objectives of its policy of separate
development, contending that to establish a breach of its substantive international obligations
under the Mandate it would be necessary to prove that South Africa had failed to exercise its
powers with a view to promoting the well-being and progress of the inhabitants. The Court
found that no factual evidence was needed for the purpose of determining whether the policy
of apartheid in Namibia was in conformity with the international obligations assumed by South
Africa. It is undisputed that the official governmental policy pursued by South Africa in Namibia
is to achieve a complete physical separation of races and ethnic groups. This means the
enforcement of distinctions, exclusions, restrictions and limitations exclusively based on
grounds of race, colour, descent or national or ethnic origin which constitutes a denial of
fundamental human rights. This the Court views as a flagrant violation of the purposes and
principles of the Charter of the United Nations.
The Government of South Africa had also submitted a request that a plebiscite should
be held in the Territory of Namibia under the joint supervision of the Court and the

[Pick the date]

Government of South Africa. The Court having concluded that no further evidence was
required, that the Mandate had been validly terminated and that in consequence South Africa's
presence in Namibia was illegal and its acts on behalf of or concerning Namibia illegal and
invalid, it was not able to entertain this proposal.
By a letter of 14 May 1971 the President informed the representatives of the States
and organizations which had participated in the oral proceedings that the Court had decided
not to accede to the two above-mentioned requests.

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#7. Danube Dam Case

Facts: A treaty between the Hungarian Peoples Republic and the Czechoslovak Socialist
Republic regarding the Construction and Operation of Gabciko-Nagymaros System of Locks was
concluded on September 16, 1977. It was concluded for the facilitation of the construction of
dams on Danube River. It was for the broad utilization of the natural resources of the Danube
between Bratislava and Budapest, representing two hundred of the Rivers total 2,816
kilometers. There was intense criticism of the construction at Nagyramos was due to the
endangerment of the environment and uncertainty of economic sustainability. The growing
opposition endangered political pressures upon the Hungarian Government. After the initiation
of two protocols, concerned with the timing of construction, Hungary suspended works at
Nagyramos on July 21 1989 pending further environmental studies.
In response, Czechoslovakia carried out unilateral measures. Hungary then claimed
the right to terminate the treaty and the dispute was submitted to the ICJ. Hungary also
claimed that it was entitle to terminate the treaty on the grounds that Czechoslovakia violated
the Articles of the Treaty by carrying out unilateral measures. Slovakia became successor to
Czechoslovakia to the treaty in 1977.
On may 1992, Hungary moved to terminate the treaty for Czechoslovakias refusal to
suspend works during the process of mediation. Since there was no clause for termination in
the treaty, Hungary presented 5 arguments for its action: (1) state of necessity, (2) supervening
impossibility of performance, (3) fundamental change of circumstances, (4) material breach,
and (5) emergence of new norms in International Law. Slovakia contested all arguments.
ISSUE: Whether the termination of the Treaty by Hungary is valid?
HELD: No.
(1) The ICJ easily dismissed the first claim by Hungary by simply stating that necessity is
not a valid ground for termination as even if a state of necessity is established, as
soon as it ceases to exist, the treaty obligations automatically revive.
(2) The doctrine of impossibility of performance is encapsulated in Art. 61 of the Vienna
Convention on the Law of Treaties, which requires the permanent disappearance or
destruction of an object indispensable for the execution of the treaty. In this case,
the legal regime governing the project did not cease to exist.
(3) In fundamental change of circumstances, the Court held that although political
changes and diminished economic sustainability and viability were relevant to the
conclusion of the treaty, they were not so closely linked with the object and purpose
of the 1977 Treaty so as to constitute an essential basis of te consent of the Parties.
New developments in the efficacy of environmental knowledge were not unforeseen
by the treaty and cannot be said to represent a fundamental change.
(4) Material breach only occurred upon the diversion of Danube and Hungarys
purported termination was premature and thus invalid.
(5) Hungary claimed that pursuant to new developments in international law, the
obligation not to cause injury and damage to another state has become an obligation
erga omnes. Slovakia countered that there has been no intervening developments in
international environmental law that would give rise to jus cogens that would
supervene their treaty. The Court avoided consideration of these propositions.

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#8. Goldwater vs Carter

*Topic: Authority to terminate. While the Vienna Convention enumerates those who have the
capacity to enter into treaties, it does not say who may terminate a treaty. Logically, however,
the authority to terminate should also belong to the one who has the authority to enter into the
treaty. (Question: Can the President unilaterally terminate a treaty? Goldwater vs Carter
discussed this question relative to Pres. Carters termination of the defense treaty with Taiwan.
No decision was reached except to say that the matter was not yet ripe for judicial review.

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Congress to seek judicial resolution of issues before the normal political process has the
opportunity to resolve the conflict
Court Rationale: If Congress had challenged the Presidents authority to terminate,
then the court would have justiciable issue to decide. Without a challenge the issue only
involves a political question. Neither the Senate nor the House have taken any action, thereby
rendering the case unripe for decision. There is no specific language preventing the President
from terminating treaties without approval. There is no showing that Congress has rejected
the Presidents claim. It is Congress choice to challenge the President not the Courts.

Facts:
President Carter terminated a defense treaty with Taiwan. Neither the Senate nor
the House has taken action to prevent or contest the action. Several members brought this
claim alleging the President has deprived them of their Constitutional role.
In the present posture of this case, we do not know whether there ever will be an
actual confrontation between the Legislative and Executive Branches. Although the Senate has
considered a resolution declaring that Senate approval is necessary for the termination of any
mutual defense treaty, no final vote has been taken on the resolution.
Arguments:
P) The Constitution makes specific mention that the President needs the approval and
consent of the Senate to make a treaty, therefor the contra positive is true: President cannot
terminate a treaty without approval and consent of the Senate. If so, a constitutional case and
controversy are ripened for decision. Whether the decision making authority is Constitutionally
valid is a determination left to the courts.
Def) The issue is a political question where the PL is asking the court to issue an
advisory opinion on whether the President can or cannot terminate a treaty.
Issue:
Whether the President, in terminating at treaty with another country, needs the
approval of Congress, and if so does it involve a political question?
Held:
The judgment is vacated and the case remanded to the court for dismissal.
Rule:
The President is authorized to make treaties with the advice and consent of the
Senate. Treaties shall be a part of the supreme law of the land.
Court has recognized that an issue should not be decided if it is not ripe for judicial
review. Prudential considerations persuade me that a dispute between Congress and the
President is not ready for judicial review unless and until each branch has taken action
asserting its constitutional authority. Differences between the President and the Congress are
commonplace under our system. The differences should, and almost invariably do, turn on
political rather than legal considerations.
The Judicial Branch should not decide issues affecting the allocation of power
between the President and Congress until the political branches reach a constitutional
impasse. Otherwise, we would encourage small groups or even individual Members of

Where the Constitution is silent this case is controlled by political standards. Congress
has terminated treaties without Presidential approval.

[PIL]

#9. Brazilian Loans Case: France vs Brazil

* Municipal Law in International Law. Where the court must decide a dispute which turns not
upon international law but upon domestic law, the court stated what it must do: Once the court
has arrived at the conclusion that it is necessary to apply the municipal law of a particular
country, there seems to be no doubt that it must seek to apply it as it would be applied in that
country.
Facts:
By a decree dated June 8th, 1903, the Government of the Republic of the United
States of Brazil established a "special regime for the carrying out of works for the improvement
of ports". This regime was subsequently modified by a presidential decree dated February 14th,
1907, to the effect that "the works were to be carried out under government's control and by
contract", the Government being empowered "for the expenditure necessary in connection
with the carrying out of the improvements in the ports and on the navigable rivers", "to
undertake the requisite operations for obtaining credit" and "to issue gold or paper bonds".
Further, the law of December 31st, 1907, determining the general expenditure of the Republic
for the financial year 1908, authorized the President of the Republic, amongst other things, "to
proceed with the improvement works in the ports .... in accordance with the decree .... of
February 14th, 1907, as also with the requisite credit operations".
1) In virtue of this authority, the President appears to have called for tenders for the carrying
out of the improvement works at the port of Recife (Pernambuco) and, by a decree of July 2nd,
1908, he approved the conditions of a contract to be concluded between the Government and
the contractors whose tenders had been selected. The contract was actually concluded on
August 4th, 1908; according to its provisions' [p98] the works contracted for were to be paid
for in bonds to bearer of the Brazilian Public Debt issued to a maximum nominal value
"equivalent to 84,528,300 francs". The issue by the Minister of Finance of a first section of a
nominal value of 40,000,000 francs was authorized by a presidential decree of December 3rd,
1908. The prospectus of this section, dated December 30th, 1908, states that "the loan
constitutes a direct debt of the Government of the United States of Brazil"; it indicates that
subscriptions would take place on January 30th, 1909, at Paris and provincial French
exchanges. The bonds were actually signed on July 24th, 1909, by the delegate of the
Brazilian
Treasury
in
London.
2) Under a Brazilian decree of March 27th, 1907, a new contract was concluded, on October
25th, 1909, between the Federal Government of the United States of Brazil and the Goyaz
Railway Company, according to which the Government was to pay the Company "in bonds
bearing interest at 4% per annum .... the sum which will be determined by the final plans
approved by the Government"; as soon'as authorized to do so by the Government, the
Company might "sell the whole or a part of the bonds corresponding to the railways....".
In virtue of the foregoing arrangements, the Goyaz Railway Company, on February 10th, 1910,
concluded at Paris with a French bank a contract for the sale, by the bank, of 100,000,000
francs worth of Brazilian funds, represented by 200,000 bonds, which were to be made over
to the bank by the Company; The prospectus, which is dated March 2nd, 1910, states that
subscription would take place at Paris and provincial French exchanges on March 17th, 1910.
3) By a contract duly approved by a Brazilian presidential decree dated March 31st, 1911, the
Viacao Geral da Bahia Company obtained a concession for the construction of a system of
railways in the State of Bahia; the works were to be paid for in "4 % bonds of the Federal Debt",

[Pick the date]

which the Company was to sell for its own account "immediately after the conclusion of the
negotiations". Another decree dated June 21st, 1911, authorized the Minister of Finance to
issue bonds for 60,000,000 francs, "in payment for the works provided for in the contract
concluded with the Viacao Geral da Bahia Company"; the bonds were to be "of the nominal
value of 500 francs". The prospectus is dated May 12th, 1911; according to its terms,
subscription was to take place on July 12th, 1911. The place of issue is not indicated, but it is
said that "allotment will take place on Tuesday, July 25th, 1911: at Paris .... in the provinces ....
and in Brazil" (Rio de Janeiro). The bonds were signed in London on September 21st, 1911, by
the duly authorized representative of the Federal Government of the United States of Brazil;
It appears from the terms of Article I of the Special Agreement that the Parties agree on the fact
that "hitherto" the payment of matured coupons and the redemption of drawn bonds of the
three loans at issue have been effected "in paper francs, that is to say, in the French currency
which is compulsory tender". And the documents and. information [p100] laid before the Court
confirm that this has indeed been the case, except for the period from August 1st, 1914, to July
31st, 1917, inclusive, during which the interest on the loans was in effect paid by means of
"funding bonds" (bons de consolidation) issued, with the authorization of the Brazilian
Government, by a banking house of London; these funding bonds were bearer bonds
redeemable in ten years, the interest on which was payable in pounds sterling at London and
certain continental exchanges at the exchange rate of the day on London. This incident does
not seem however to have any bearing on the present case. It is also common ground that the
yield of the loans has always been credited to the borrower, or to the companies to which it
had
ceded
its
right,
in
French
francs
at
their
current
value.
Finally, it is admitted by both sides that the fact that after the increasing depreciation of the
French franc, the service of the loan was effected in that currency on the basis of its current
value, ultimately led to protests and the taking of steps by the bondholders with a view to
inducing the French Government to intervene; according to the Brazilian Government,
however, this attitude on the part of the bondholders dates only from 1924 and is explained
by speculative aims, while, according to the French Government, the discontent of the
bondholders and its earliest manifestations date from an earlier period. However that may
be, on September 1st, 1924, the French Ambassador at Rio de Janeiro intervened, in the name
of his Government, with the Federal Government "on behalf of the bondholders of the three
Brazilian loans at issue, who claimed that payment of the interest upon and the redemption
of the capital of these loans should be effected on a gold basis"; the French Government
seems thus to have identified itself with this claim, with which the Government of the United
States of Brazil did not however feel called upon to comply. Diplomatic conversations seem to
have then taken place, which, however, did not succeed in disposing of the controversy. =
dispute
Problem: There appears to have been only a slight difference in the value of French currency as
[p120] compared with a gold basis. The significant period is the later onethat is, between
1919 and 1924, as by the latter date the French Government had espoused the cause of the
French bondholders and made formal complaint. In considering the conduct of the bondholders
in this period, it is to be remembered that this was a time of great difficulties; that there were
many bondholders; that as individuals they were powerless as against the Brazilian
Government, and it was necessary for them to associate themselves together and to interest
the French Government in their case; that the French Government had to consider the matter
and determine on its course of action. When all these circumstances are considered, there is no

[PIL]

adequate basis for an inference from the conduct of the bondholders that they were of opinion
that they were not entitled to obtain payment on the basis of a gold standard. From September
1924, at least, the matter was in the course of diplomatic negotiations between the two
Governments until the Special Agreement for submission to the Court was signed in 1927. The
bonds are bearer bonds which entitle the bearer to claim, simply because he is a bearer, all
the rights accruing under the bond. The bondholders cannot be regarded as estopped to seek
payment
in
gold
value.
The law applicable.Counsel for the Government of the United States of Brazil has summarized
the argument of his Government as follows: " .... even were it possible to conclude that the
intention of the borrower and lenders was to set aside the French franc and adopt another
franc representing a fixed and invariable monetary unit, calculated according to its weight in
gold, on that hypothesis also, as the question concerns a loan governed by Article 1895 of the
French Civil Code and seeing that the forced currency law enacted as a result of circumstances,
unforeseen and impossible to foresee, such a clause could not be effective in so far as
concerned
any
payment
to
be
made
in
francs."
Issue: Formulated in this way, the argument raises several questions, and in the first place the
question whether it is French law which in this case governs the contractual obligations as
such.
Held: The Brazilian law governs, not the French Law.
That is a question of private international law which the Court, as it has explained in its
judgment regarding the Serbian loans, must decide by reference to the actual nature of the
obligations in question and to the circumstances attendant upon their creation, though it may
also take into account the expressed or presumed intention of the Parties.
Having regard to the nature of the bonds and to the circumstances concerning their issue, there
seems to be no doubt that it is Brazilian law and not French law which must be held to govern
the obligations contracted, at all events as regards the substance of the debt and the validity of
the clause defining it. The loans in question are loans contracted by the Government of the
United States of Brazil under laws and decrees having the force of law and laying down the
conditions relating to the loans. These decrees are cited in the bonds, and accordingly the
validity of the obligations set out therein is indisputable in Brazilian law. The bonds are bearer
bonds signed by the delegate of the Brazilian Treasury in London. It follows from the very
nature of bearer bonds that the substance of the debt, which in principle must be the same in
respect of all holders, cannot be dependent on the identity of the holder or the place where he
has acquired his bond. Only the identity of the borrower is fixed; in this case it is a sovereign
State, which cannot be presumed to have made the substance of its debt and the validity of the
obligations accepted by it in respect thereof, subject to any law other than its own. [p122]
It cannot be held that the intention of the borrowing State was to render some law other than
its own applicable as regards the substance of its debt and the validity of the conditions laid
down in respect thereof, unless there were, if not an express provision to this effect, at all
events circumstances which would irrefutably show that such was its intention.
But in the present case there is no express provision. The only circumstance which has been
brought to the knowledge of the Court and which might possibly be cited in this connection is

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that, according to the statement of the Government of the United States of Brazil, which has
not been disputed, the issue of the loans took place in France only. This circumstance, however,
cannot suffice to show that the intention was to make the obligations entered into as regards
the substance of the debt and the validity of the conditions relating to it, subject to French law,
more especially considering that not only did the bonds of all those loans also contain an
English text but also that the interest was made payable, in the case of the 1910 and 1911
loans, at Rio de Janeiro and London as well as Paris, and in the case of the 1909 loan, besides
Paris, also at Brussels, Amsterdam and Hamburg. As concerns the 1910 and 1911 loans also, the
bonds drawn for redemption are payable at Paris, London and Rio de Janeiro. These provisions
show that it was not the intention to place the bonds exclusively in France. Moreover, the
prospectus which has been produced in respect of the 1911 loan states that subscription was to
take place not only at Paris and on French provincial exchanges, but also in Brazil.
But though the Court is unable to admit that the intention was to make the substance of the
debt and the validity of the provisions relating to it subject to French law, this does not prevent
the currency in which payment must or may be made in France from being governed by French
law. For, as the Court has explained in its judgment in the case of the Serbian loans, it is a
generally accepted principle that a State is entitled to regulate its own currency. The application
of the laws of such State involves no difficulty so long as it does not affect the substance of the
debt [p123] to be paid and does not conflict with the law governing such debt. And in the
present case, this situation need only be-envisaged if, as contended by the Government of the
United States of Brazil, French law rendered it impossible to claim payment otherwise than in
bank-notes which are compulsory tender, and for the same amount of francs as are specified in
the contract.
Does this observation also cover the present case? The Special Agreement under which this
case has been submitted to the Court contains the following in Article VI:
"In estimating the weight to be attached to any municipal law of either country which may be
applicable to the dispute, the Permanent Court of International Justice shall not be bound by
the
decisions
of
the
respective-courts."
There are two possible interpretations. According to one keeping more strictly to the literal
meaning of the wordsthe Court is not to regard itself as legally bound to follow the doctrine
of the courts of the country the law of which it is applying; it remains however free to do so if it
considers that its task should be limited to applying the municipal law in accordance with the
construction placed thereon by the national courts. According to another interpretation
which might find support more particularly in the fact that questions similar to that submitted
to the Court had already formed the subject of decision in French courts the Court's duty
would be to disregard the doctrine of the municipal courts and itself to determine that
interpretation of the relevant legislation which seems, in its opinion, to be the most reasonable
in the present case. The Court, in choosing between these two interpretations, must adopt
that one which is in principle compatible with a proper appreciation of its nature and
functions. Though bound to apply municipal law when circumstances so require, the Court,
which is a tribunal of international law, and which, in this capacity, is deemed itself to know
what this law is, is not obliged also to know the municipal law of the various countries. All
that can be said in this respect is that the Court may possibly be obliged to obtain knowledge
regarding the municipal law which has to be applied. And this it must do, either by means of
evidence furnished it by the Parties or by means of any researches which the Court may think

[PIL]

fit to undertake or to cause to be undertaken. Once the Court has arrived at the conclusion
that it is necessary to apply the municipal law of a particular country, there seems no doubt
that it must seek to apply it as it would be applied in that country. It would not be applying
the municipal law of a country if it were to apply it in a manner different from that in which
that law would be applied in the country in which it is in force. It follows that the Court must
pay the utmost regard to the decisions of the municipal courts of a country, for it is with the
aid of their jurisprudence that it will be enabled to decide what are the rules which, in actual
fact, are applied in the country the law of which is recognized as applicable in a given case. If
the Court were obliged to disregard the decisions of municipal courts, the result would be
that it might in certain circumstances apply rules other than those actually applied; this
would seem to be contrary to the whole theory on which the application of municipal law is
based.
Of course, the Court will endeavour to make a just appreciation of the jurisprudence of
municipal courts. If this is uncertain or divided, it will rest with the Court to select the
interpretation which it considers most in conformity with the law. But to compel the Court to
disregard that jurisprudence would not be in conformity with its function when applying
municipal law, while the Court is authorized to depart from the jurisprudence of the municipal
courts, it remains entirely free to decide that there is no ground for attributing to the municipal
law a meaning other than that attributed to it by that jurisprudence.

[Pick the date]

[PIL]

[Pick the date]

#10. BORIS MEJOFF v. DIRECTOR OF PRISONS,

Petitioner Boris Mejoff is an alien of Russian descent who was brought to this country
from Shanghai as a secret operative by the Japanese forces during the latter's regime in these
Islands.

"It must be admitted that temporary detention is a necessary step in the process of
exclusion or expulsion of undesirable aliens and that pending arrangements for his deportation,
the Government has the right to hold the undesirable alien under confinement for a reasonable
lenght of time. However, under established precedents, too long a detention may justify the
1
issuance of a writ of habeas corpus.

Upon liberation, he was arrested as a Japanese spy, by U S. Army Counter Intelligence

Corps.
Later he was handed to the Commonwealth Government for disposition in
accordance with Commonwealth Act No. 682.
Thereafter the People's Court ordered his release. But the deportation board taking
his case up, found that having no travel documents Mejoff was illegal in this country, and
consequently referred the matter to the immigration authorities.
After the corresponding investigation, the Board of Commissioners of Immigration on
April 5, 1948, declared that Mejoff had entered the Philippines illegally in 1944, without
inspection and admission by the immigration officials at a designated port of entry and,
therefore, it ordered that he be deported on the first available transportation to Russia.
The petitioner was then under custody, he having been arrested on March 18, 1948.
In May, 1948, he was transferred to the Cebu Provincial Jail together with three other Russians
to await the arrival of some Russian vessels.
In July and in August of that year two boats of Russian nationality called at the Cebu
Port. But their masters refused to take petitioner and his companions alleging lack of authority
to do so.

"The meaning of "reasonable time" depends upon the circumstances, specially the
difficulties of obtaining a passport, the availability of transportation, the diplomatic
2
arrangements concerned and the efforts displayed to send the deportee away.
Considering that this Government desires to expel the alien, and does not relish
keeping him at the people's expense, we must presume it is making efforts to carry out the
decree of exclusion by the highest officer of the land.
On top of this presumption assurances were made during the oral argument that the
Government is really trying to expedite the expulsion of this petitioner. On the other hand, the
record fails to show how long he has been under confinement since the last time he was
apprehended. Neither does he indicate neglected opportunities to send him abroad. And unless
it is shown that the deportee is being indefinitely imprisoned under the pretense of awaiting a
3
4
chance for deportation or unless the Government admits that it cannot deport him or unless
the detainee is being held for too long a period our courts will not interfere.
"In the United States there were at least two instances in which courts fixed a time
5
limit within which the imprisoned aliens should be deported otherwise their release would be
ordered by writ of habeas corpus. Nevertheless, supposing such precedents apply in this
jurisdiction, still we have no sufficient data fairly to fix a definite deadline."

In October, 1948, after repeated failures to ship this deportee abroad, the authorities
removed him to Bilibid Prison at Muntinglupa where he has been confined up to the present
time, inasmuch as the Commissioner of Immigration believes it is for the best interest of the
country to keep him under detention while arrangements for his deportation are being made.

The difference between this and the Borovsky case lies in the fact that the record
shows this petitioner has been detained since March, 1948. However, considering that in the
United States (where transportation facilities are much greater and
an order of deportation has not been held sufficient to justify the issuance of the writ of habeas
corpus.

On behalf of petitioner

This petition must be, and it is hereby denied.

(1) that having been brought to the Philippines legally by the Japanese forces, he may
not now be deported. It is enough to say that the argument would deny to this
Government the power and the authority to eject from the Islands any and all of that
members of the Nipponese Army of occupation who may still be found hiding in
remote places. Which is absurd.
(2) Petitioner likewise contends that he may not be deported because the statutory
period to do that under the laws has long expired. The proposition has no basis.
Under section 37 of the Philippine Immigration Act of 1940 any alien who enters
this country "without inspection and admission by the immigration authorities at a
designated point of entry" is subject to deportation within five years. In a recent
decision of a similar litigation (Borovsky vs. Commissioner of Immigration)
We denied the request for habeas corpus, saying:

[PIL]

[Pick the date]

#11. TINOCO ARBITRATION

Facts:
In January, 1917, the Government of Costa Rica, under President Alfredo Gonzalez,
was overthrown by Frederico Tinoco, the Secretary of War. Gonzalez fled. Tinoco assumed
power, called an election, and established a new constitution in June, 1917. His government
continued until August, 1919, when Tinoco retired, and left the country. His government fell in
September following. After a provisional government under one Barquero, the old constitution
was restored and elections held under it. The restored government is a signatory to this treaty
of arbitration.
The Constitutional Congress of the restored Costa Rican Government passed a law
known as Law of Nullities No. 41. It invalidated all contracts between the executive power and
private persons, made with or without approval of the legislative power between January 27,
1917, and September 2, 1919, covering the period of the Tinoco government.
Including those contracts that were nullified were the contract of indebtedness and
concession with royal bank of Canada and central Costa Rica petroleum respectively. Both are
considered are Britain corporation.
As a result Britain filed a claim against the government of Costa Rica, Britain ask an
award that she is entitled on behalf of her subjects to have the claim of the bank paid, and the
concession recognized and given effect by the government of Costa Rica. Great Britain argued
that

The Tinoco government was the only government of Costa Rica de facto and de jure
for two years and nine months; that during that time there is no other government
disputing its sovereignty, that it was in peaceful administration of the whole country,
with the acquiescence of its people.

The succeeding government could not by legislative decree avoid responsibility for
acts of that government affecting British subjects, or appropriate or confiscate rights
and property by that government except in violation of international law;
The government of Costa Rica denies all the liability for acts or obligations of the Tinoco
government. Costa Rica argued that:

The Tinoco government was not a de facto or de jure government according to the
rules of international law

The contracts and obligations of the Tinoco government, set up by Great Britain on
behalf of its subjects, are void, and do not create a legal obligation, because the
government of Tinoco and its acts were in violation of the constitution of Costa Rica
of 1871.

Great Britain is stopped by the fact that it did not recognize the Tinoco government
during its incumbency, to claim on behalf of its subjects that Tinoco's was a
government, which could confer rights binding on its successor.
ISSUE: Whether or not the non-recognition of other states of tinoco government made not a
de facto government
Ruling No, Tinoco was a sovereign government. Even though some states did not recognize it
that cannot outweigh the evidence disclosed that de facto it was a government.

The non-recognition by other nations of a government claiming to be a national personality,

is usually appropriate evidence that it has not attained the independence and control
entitling it by international law to be classed as such. But when recognition vel non of a
government is by such nations determined by inquiry, not into its de facto sovereignty and
complete governmental control, but into its illegitimacy or irregularity of origin, their nonrecognition loses something of evidential weight on the issue with which those applying the
rules of international law are alone concerned. What is true of the non-recognition of the
United States in its bearing upon the existence of a de facto government under Tinoco for
thirty months is probably in a measure true of the non-recognition by her Allies in the European
War. Such non-recognition for any reason, however, cannot outweigh the evidence disclosed
by this record before me as to the de facto character of Tinoco's government, according to
the standard set by international law

For a full two years Tinoco and the legislative assembly under him peaceably
administered the affairs of the Government of Costa Rica, and there was no disorder
of a revolutionary character during that interval. No other government of any kind
asserted power in the country. The courts sat, Congress legislated, and the
government was duly administered. Its power was fully established and peaceably
exercised. The people seemed to have accepted Tinoco's government with great good
will when it came in, and to have welcomed the change.
The truth is that throughout the record as made by the case and counter case, there
is no substantial evidence that Tinoco was not in actual and peaceable administration
without resistance or conflict or contest by anyone until a few months before the
time when he retired and resigned

It is ably and earnestly argued on behalf of Costa Rica that the Tinoco government cannot be
considered a de facto government, because it was not established and maintained in accord
with the constitution of Costa Rica of 1871. To hold that a government which establishes itself
and maintains a peaceful administration, with the acquiescence of the people for a substantial
period of time, does not become a de facto government unless it conforms to a previous
constitution would be to hold that within the rules of international law a revolution contrary to
the fundamental law of the existing government cannot establish a new government. This
cannot be, and is not, true. The change by revolution upsets

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#12. The Island of Palmas

Scott, Hague Court Reports 2d 83 (1932) (Perm. Ct. 4rb. 1928),
2 U.N. Rep. Intl. 4rb. Awards 829

Issue:

Background
Palmas (also referred to as Miangas) is an island about two miles long by three
fourths of a mile wide which at the time of this case had a population of about 750 and was of
little strategic or economic value. It sits about halfway between the islands of Mindanao in the
Philippines and Nanusa in the Netherlands Indies.

Ruling:
No.

It is, however, within the boundaries of the Philippines as defined by Spain and thus
ceded to the United States in 1898. In 1906 an American General, Leonard Wood, visited
Palmas and discovered that the Netherlands also claimed sovereignty over the island. An
agreement was signed on January 23, 1925, between the United States and the Netherlands to
submit the dispute to binding arbitration.
The Swiss jurist, Max Huber, was the selected arbitrator acting for the Permanent
Court of Arbitration. Huber was charged to determine "whether the Island of Palmas (or
Miangas) in its entirety forms a part of territory belonging to the United States of America or of
Netherlands territory."
Facts:
The United States, as successor to the rights of Spain over the Philippines, bases its
title in the first place on discovery. The existence of sovereignty thus acquired is, in the
American view, confirmed not merely by the most reliable cartographers and authors, but also
by treaty, in particular by the Treaty of Monster, of 1648, to which Spain and the Netherlands
are themselves Contracting Parties.
As, according to the same argument, nothing has occurred of a nature, in
international law, to cause the acquired title to disappear, this latter title was intact at the
moment when, by the Treaty of December 10th, 1898, Spain ceded the Philippines to the
United States. In these circumstances, it is, in the American view, unnecessary to establish facts
showing the actual display of sovereignty precisely over the Island of Palmas (or Miangas).
The United States Government finally maintains that Palmas (or Miangas) forms a
geographical part of the Philippine group and in virtue of the principle of contiguity belongs to
the Power having the sovereignty over the Philippines.
The title alleged by the United States of America as constituting the immediate
foundation. of its claim is that-of cession, brought about by the Treaty of Paris, which cession
transferred all rights of sovereignty which Spain may have possessed in the region indicated in
Article III of the said Treaty and therefore also those concerning the Island of Palmas (or
Miangas).
On the part of the Netherlands, they claimed to have possessed and exercised rights
of sovereignty over the island from 1677 or earlier to the present.

[Pick the date]

Can a title which is inchoate prevail over a definite title found on the continuous and
peaceful display of sovereignty?

It is evident that Spain could not transfer more rights than she herself possessed. It is
recognized that the United States communicated, on February 3rd, 1899, the Treaty of Paris to
the Netherlands, and that no reservations were made by the latter in respect of the
delimitation of the Philippines in Article III. The question whether the silence of a third Power,
in regard to a treaty notified to it, can exercise any influence on the rights of this Power, or on
those of the Powers signatories of the treaty, is a question the answer to which may depend on
the nature of such rights.
Whilst it is conceivable that a conventional delimitation duly notified to third Powers
and left without contestation on their part may have some bearing on an inchoate title not
supported by any actual display of sovereignty, it would be entirely contrary to the principles
laid down above as to territorial sovereignty to suppose that such sovereignty could be affected
by the mere silence of the territorial sovereign as regards a treaty which has been notified to
him and which seems to dispose of a part of his territory.
In any case for the purpose of the present affair it may be admitted that the original
title derived from discovery belonged to Spain.
If the view most favourable to the American arguments is adopted -with every
reservation as to the soundness of such view - that is to say, if ",e consider as positive law at the
period in question the rule that discovery as such, i.e., the mere fact of seeing land, without any
act, even symbolical, of taking possession, involved ipso jure territorial sovereignty and not
merely an "Inchoate title," a jus ad rem, to be completed eventually by an actual and durable
taking of possession within a reasonable time, the question arises whether sovereignty yet
existed at the critical date, i.e., the moment of conclusion and coming into force of the Treaty
of Paris.
As regards the question which of different legal systems prevailing at successive
periods is to be applied in a particular case (the so-called intertemporal law), a distinction must
be made between the creation of rights and the existence of rights. The same principle which
subjects the act creative of a right to the law in force at the time the right arises, demands that
the existence of the right, in other words its continued manifestation, shall follow the
conditions required by the evolution of law.
International law in the 19th century, having regard to the fact that most parts of the
globe were under the sovereignty of states members of the community of nations, and that
territories without a master had become relatively few, took account of a tendency already
existing and especially developed since the middle of the 18th century, and laid down the
principle that occupation, to constitute a claim to territorial sovereignty, must be effective, that
is, offer certain guarantees to other states and their nationals.
It seems therefore incompatible with this rule of positive law that there should be
regions which are neither under the effective sovereignty of a state, nor without a master, but

[PIL]

which are reserved for the exclusive influence of one state, in virtue solely of a title of
acquisition which is no longer recognized by existing law, even if such a title ever conferred
territorial sovereignty. For these reasons, discovery alone, without any subsequent act, cannot
at the present time suffice to prove sovereignty over the Island of Palmas (or Miangas); and in
so far as there is no sovereignty, the question of an abandonment properly speaking of
sovereignty by one state in order that the sovereignty of another may take its place does not
arise.
Even admitting that the Spanish title still existed as inchoate in 1898 and must be
considered as included in the cession under Article Ill of the Treaty of Paris, an inchoate title
could not prevail over the continuous and peaceful display of authority by another state; for
such display may prevail even over a prior, definitive title put forward by another state. This
point will be considered, when the Netherlands argument has been examined and the
allegations of either party as to the display of their authority can be compared.
In the last place there remains to be considered title arising out of contiguity.
Although states have in certain circumstances maintained that islands relatively close to their
shores belonged to them in virtue of their geographical situation, it is impossible to show the
existence of a rule of positive international law to the effect that islands situated outside
territorial waters should belong to a state from the mere fact that its territory forms the terra
firma (nearest continent or island of considerable size).
Not only would it seem that there are no precedents sufficiently frequent and
sufficiently precise in their bearing to establish such a rule of international law, but the alleged
principle itself is by its very nature so uncertain and contested that even governments of the
same state have on different occasions maintained contradictory opinions as to its soundness.
The principle of contiguity, in regard to islands, may not be out of place when it is a
question of allotting them to one state rather than another, either by agreement between the
parties, or by a decision not necessarily based on law; but as a rule establishing ipso jure the
presumption of sovereignty in favour of a particular state, this principle would be in conflict
with what has been said as to territorial sovereignty and as to the necessary relation between
the right to exclude other states from a region and the duty to display therein the activities of a
state. Nor is this principle of contiguity admissible as a legal method of deciding questions of
territorial sovereignty; for it is wholly lacking in precision and would in its application lead to
arbitrary results. This would be especially true in a case such as that of the island in question,
which is not relatively close to one single continent, but forms part of a large archipelago in
which strict delimitations between the different parts are not naturally obvious. . . .
It is, however, to be observed that international arbitral jurisprudence in disputes on
territorial sovereignty (e.g., the award in the arbitration between Italy and Switzerland
concerning the Alpe Craivarola; Lafontaine, Pasicrisie international, p. 201-209) would seem to
attribute greater weight to - even isolated - acts of display of sovereignty than to continuity of
territory, even if such continuity is combined with the existence of natural boundaries. . . .
In the opinion of the Arbitrator the Netherlands have succeeded in establishing the following
facts:

[Pick the date]

a. The Island of Palmas (or Miangas) 'Is identical with an island designated by this or a
similar name, which has formed, at least since 1700, successively a part of two of the native
States of the Island of Sangi (Talautse Isles).
b. These native States were from 1677 onwards connected with the East India
Company, and thereby with the Netherlands, by contracts of suzerainty, which conferred upon
the suzerain such powers as would 'justify his considering the vassal state as a part of his
territory.
c. Acts characteristic of state authority exercised either by the vassal state or by the
suzerain Power in regard precisely to the Island of Palmas (or Miangas) have been established
as occurring at different epochs between 1700 and 1898, as well as in the period between 1898
and 1906.
The acts of indirect or direct display of Netherlands sovereignty at Palmas (or
Miangas), especially in the 18th and early 19th centuries are not numerous, and there are
considerable gaps in the evidence of continuous display. But apart from the consideration
that the manifestations of sovereignty over a small and distant island, inhabited only by
natives, cannot be expected to be frequent, it is not necessary that the display of sovereignty
should go back to a very far distant period. It may suffice that such display existed in 1898,
and had already existed as continuous and peaceful before that date long enough to enable
any Power who might have considered herself as possessing sovereignty over the island, or
having a claim to sovereignty, to have, according to local conditions, a reasonable possibility
for ascertaining the existence of a state of things contrary to her real or alleged rights.
There is moreover no evidence which would establish any act of display of
sovereignty over the island by Spain or another Power, such as might counterbalance or
annihilate the manifestations of Netherlands sovereignty.
The conditions of acquisition of sovereignty by the Netherlands are therefore to be
considered as fulfilled. It remains now to be seen whether the United States as successors of
Spain are in a position to bring forward an equivalent or stronger title. This is to be answered in
the negative.
The title of discovery, if it had not already been disposed of by the Treaties of
Munster and Utrecht, would, under the most favourable and most extensive interpretation,
exist only as an inchoate title, as a claim to establish sovereignty by effective occupation. An
inchoate title however cannot prevail over a definite title founded on continuous and
peaceful display of sovereignty.
The Netherlands title of sovereignty, acquired by continuous and peaceful display of
state authority during a long period of time going probably back beyond the year 1700,
therefore holds good.
For these reasons the Arbitrator . . . decides that:
The Island of Palmas (or Miangas) forms in its entirety a part of Netherlands territory.

[PIL]

#13. Department of Foreign Affairs vs. NLRC (G.R. No. 113191)

* Immunities. Because they are international personality, they can also be given the immunities
and privileges of international persons. Their immunities, however, have for basis not
sovereignty, as it is for states, but the need for the effective exercise of their function.
Facts: On 27 January 1993, private respondent Magnayi filed an illegal dismissal case against
ADB and the latters violation of the labor only contracting law. Two summonses were
served, one sent directly to the ADB and the other through the Department of Foreign Affairs
("DFA"). ADB and the DFA notified respondent Labor Arbiter that the ADB, as well as its
President and Officers, were covered by an immunity from legal process except for borrowings,
guaranties or the sale of securities pursuant to Article 50(1) and Article 55 of the Agreement
Establishing the Asian Development Bank (the "Charter") in relation to Section 5 and Section 44
of the Agreement Between The Bank And The Government Of The Philippines Regarding The
Bank's Headquarters (the "Headquarters Agreement").
The Labor Arbiter took cognizance of the complaint on the impression that the ADB had waived
its diplomatic immunity from suit and, in time, rendered a decision in favour Magnayi. The
ADB did not appeal the decision. Instead, on 03 November 1993, the DFA referred the matter
to the NLRC; in its referral, the DFA sought a "formal vacation of the void judgment." When DFA
failed to obtain a favorable decision from the NLRC, it filed a petition for certiorari.
Issues:
1)

Whether or not ADB is immune from suit

No. Under the Charter and Headquarters Agreement (Art. 50(1) and Section 5
respectively), the ADB enjoys immunity from legal process of every form, except in the
specified cases of borrowing and guarantee operations, as well as the purchase, sale and
underwriting of securities. The Banks officers, on their part, enjoy immunity in respect of all
acts performed by them in their official capacity. The Charter and the Headquarters Agreement
granting these immunities and privileges are treaty covenants and commitments voluntarily
assumed by the Philippine government which must be respected.
Being an international organization that has been extended a diplomatic status, the
ADB is independent of the municipal law. One of the basic immunities of an international
organization is immunity from local jurisdiction, i.e., that it is immune from the legal writs
and processes issued by the tribunals of the country where it is found. The obvious reason for
this is that the subjection of such an organization to the authority of the local courts would
afford a convenient medium thru which the host government may interfere in their operations
or even influence or control its policies and decisions of the organization; besides, such
subjection to local jurisdiction would impair the capacity of such body to discharge its
responsibilities impartially on behalf of its member-states."
2) Whether or not by entering into service contracts with different private
companies, ADB has descended to the level of an ordinary party to a commercial transaction
giving rise to a waiver of its immunity from suit.
No. The ADB didn't descend to the level of an ordinary party to a commercial
transaction, which should have constituted a waiver of its immunity from suit, by entering into
service contracts with different private companies. There are two conflicting concepts of

[Pick the date]

sovereign immunity, each widely held and firmly established. According to the classical or
absolute theory, a sovereign cannot, without its consent, be made a respondent in the Courts
of another sovereign. According to the newer or restrictive theory, the immunity of the
sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not
with regard to private act or acts jure gestionis.
Certainly, the mere entering into a contract by a foreign state with a private party
cannot be the ultimate test. Such an act can only be the start of the inquiry. The logical
question is whether the foreign state is engaged in the activity in the regular course of
business. If the foreign state is not engaged regularly in a business or trade, the particular act
or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity,
or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain
or profit.
The service contracts referred to by private respondent have not been intended by
the ADB for profit or gain but are official acts over which a waiver of immunity would not
attach.
3) Whether or not the DFA has the legal standing to file the present petition
Yes. The DFA's function includes, among its other mandates, the determination of
persons and institutions covered by diplomatic immunities, a determination which, when
challenged, entitles it to seek relief from the court so as not to seriously impair the conduct of
the country's foreign relations. The DFA must be allowed to plead its case whenever necessary
or advisable to enable it to help keep the credibility of the Philippine government before the
international community. When international agreements are concluded, the parties thereto
are deemed to have likewise accepted the responsibility of seeing to it that their agreements
are duly regarded. In our country, this task falls principally on the DFA as being the highest
executive department with the competence and authority to so act in this aspect of the
international arena. In Holy See vs. Hon. Rosario, Jr., this Court has explained the matter in
good detail; viz:
In Public International Law, when a state or international agency wishes to plead
sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of the state
where it is sued to convey to the court that said defendant is entitled to immunity. In the
United States, the procedure followed is the process of 'suggestion,' where the foreign state or
the international organization sued in an American court requests the Secretary of State to
make a determination as to whether it is entitled to immunity. If the Secretary of State finds
that the defendant is immune from suit, he, in turn, asks the Attorney General to submit to the
court a 'suggestion' that the defendant is entitled to immunity.
In the Philippines, the practice is for the foreign government or the international
organization to first secure an executive endorsement of its claim of sovereign or diplomatic
immunity. But how the Philippine Foreign Office conveys its endorsement to the courts
varies. In International Catholic Migration Commission vs. Calleja, the Secretary of Foreign
Affairs just sent a letter directly to the Secretary of Labor and Employment, informing the latter
that the respondent-employer could not be sued because it enjoyed diplomatic immunity. In
World Health Organization vs. Aquino, the Secretary of Foreign Affairs sent the trial court a
telegram to that effect. In Baer vs. Tizon, the U.S. Embassy asked the Secretary of Foreign

[PIL]

Affairs to request the Solicitor General to make, in behalf of the Commander of the United
States Naval Base at Olongapo City, Zambales, a 'suggestion' to respondent Judge. The Solicitor
General embodied the 'suggestion' in a manifestation and memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal
Affairs moved with this Court to be allowed to intervene on the side of petitioner. The Court
allowed the said Department to file its memorandum in support of petitioner's claim of
sovereign immunity. In some cases, the defense of sovereign immunity was submitted directly
to the local courts by the respondents through their private counsels. In cases where the
foreign states bypass the Foreign Office, the courts can inquire into the facts and make their
own determination as to the nature of the acts and transactions involved.

[Pick the date]

[PIL]

#14. Kapisanan ng Manggagawa vs. Secretary of Labor

Abstract: The case involves a dispute between International Rice Research Insitute (IRRI) and its
employees. Its employees seek to form a union and filed a petition for certification of election
with the Labor Arbiter.
Facts: IRRI is created and organized by virtue of a Memorandum of Agreement between the
Rockefeller foundation and the Philippine government for the purpose of conducting research
on rice plant and all phases of rice production. It is registered with the Securities and Exchange
Commission as a private organization. However, upon the enactment of PD 1620, IRRI was
granted immunity from suits and was given the status of an international organization.
Subsequent to this event, the Kapisinan- representing the employees of the Institute- filed
before the Labor Arbiter a Certification of Election in order that they may form a Union within
the Institute. The petition was then opposed by IRRI claiming that by virtue of PD 1620, it has
already attained a status of an international organization and has been granted immunity from
all suits unless it waives such immunity.
The Labor Arbiter, recognizing the claim of immunity of the Institution, dismissed the
complaint. However, the Bureau of Labor Relations reversed the decision of the Labor Arbiter
and ruled that IRRIs exemption from suit does not include exemption from coverage of the
labor laws of the Philippines under Article 243 of the Labor Code. On appeal, the Secretary of
Labor vacated the decision of BLR and recognized the immunity granted to the IRRI under
Article 3 of PD 1620. And unless and until IRRI waives immunity, then it cannot be sued.
Hence, the current petition.
The petitioner contends that the grant of immunity under PD 1620 is unconstitutional because
it deprives Filipino workers their constitutional right of self-organization under the 1987
Constitution.
Issue: Whether or not PD 1620 should be declared unconstitutional in so far as it defeats the
rights of the workers to self-organization.
Ruling: The Supreme Court dismissed the petition and ruled in favor of IRRI. It ruled that issues
on diplomatic immunity is a political question and the fact that it has already been categorically
recognized and affirmed by the executive officials, the courts are now prohibited from looking
beyond the determination by the executive branch of the government. The only duty of the
courts as to this point is to accept the immunity as suggested by the executive official so as not
to embarrass the executive branch of the government.
Moreover the Court ruled that IRRI, as an international organization, must be free from local
interference so that it may be able to fully perform the function for which it is created. This is
the very ratio detere of granting internation organizations immunity- for them to be able to
perform their functions properly without any domestic interference and to also be able to act
impartially.
The Court also ruled that the contention of the of the petitioner that the immunity granted by
PD 1620 to IRRI defeats their members right to self-organization is untenable. This is because

[Pick the date]

their exists and Employees Council that would enable them to collectively communicate with
the management.