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SANDIGANBAYAN, same in evidence against her since at the time of their seizure,
G.R. No. 104768, July 21, 2003 private respondents did not enjoy any constitutional right.
Facts:
Immediately upon her assumption to office following the successful Issue:
EDSA Revolution, then President Corazon C. Aquino issued Whether or not the search of Dimaano’s home was legal
Executive Order No. 1 (“EO No. 1”) creating the Presidential
Commission on Good Government (“PCGG”). EO No. 1 primarily
tasked the PCGG to recover all ill-gotten wealth of former President Held:
Ferdinand E. Marcos, his immediate family, relatives, subordinates The search and seizure of Dimaano’s home were NOT legal.
and close associates. Accordingly, the PCGG, through its then
Chairman Jovito R. Salonga, created an AFP Anti-Graft Board The Bill of Rights under the 1973 Constitution was not
(“AFP Board”) tasked to investigate reports of unexplained wealth operative during the interregnum.
and corrupt practices by AFP personnel, whether in the active The EDSA Revolution took place on 23-25 February 1986. As
service or retired. succinctly stated in President Aquino’s Proclamation No. 3 dated 25
March 1986, the EDSA Revolution was “done in defiance of the
provisions of the 1973 Constitution.“ The resulting government was
Based on its mandate, the AFP Board investigated various reports indisputably a revolutionary government bound by no constitution or
of alleged unexplained wealth of respondent Major General legal limitations except treaty obligations that the revolutionary
Josephus Q. Ramas (“Ramas”). Later, the AFP Board issued a government, as the de jure government in the Philippines, assumed
Resolution on its findings and recommendation on the reported under international law.
unexplained wealth of Ramas.
It is obvious from the testimony of Captain Sebastian that the The United States did not appear before the ICJ at the merit
warrant did not include the monies, communications equipment, stages, after refusing to accept the ICJ’s jurisdiction to decide the
jewelry and land titles that the raiding team confiscated. The search case. The United States at the jurisdictional phase of the hearing,
warrant did not particularly describe these items and the raiding however, stated that it relied on an inherent right of collective self-
team confiscated them on its own authority. The raiding team had defence guaranteed in A. 51 of the UN Charter when it provided
no legal basis to seize these items without showing that these items “upon request proportionate and appropriate assistance…” to Costa
could be the subject of warrantless search and seizure. Clearly, the Rica, Honduras, and El Salvador in response to Nicaragua’s acts of
raiding team exceeded its authority when it seized these items. aggression against those countries (paras 126, 128).
In the event one State intervenes in the affairs of another In Nicaragua vs United States, the Court discussed, amongst
State, the victim State has a right to intervene in a manner others:
that is short of an armed attack (210).
(1) Was the Court competent to give its determination based on
“While an armed attack would give rise to an entitlement to customary international law when there was a multilateral treaty
collective self-defence, a use of force of a lesser degree of gravity reservation?
cannot as the Court has already observed (paragraph 211 above) (2) What is the relationship between treaty and customary
produce any entitlement to take collective countermeasures international law?
involving the use of force. The acts of which Nicaragua is accused, (3) What are the elements necessary to form customary
even assuming them to have been established and imputable to international law?
that State, could only have justified proportionate counter-measures (4) What is the customary international law status of the principle of
on the part of the State which had been the victim of these acts, non-intervention?
namely El Salvador, Honduras or Costa Rica. They could not
justify counter-measures taken by a third State, the United States,
and particularly could not justify intervention involving the use of Relevant findings of the Court:
force.”
(1) The Court held that multilateral treaty reservations
5. The United States violated its customary international law cannot preclude the Court from relying on customary
obligation not to violate the sovereignty of another State, when international law, because customary law exists independently
it directed or authorized its aircrafts to fly over Nicaraguan of treaty law. (paras 172 – 178)
territory and when it laid mines in the internal waters of
Nicaragua and its territorial sea. The Court held that the issues raised by Nicaragua – relating the
use of force and self defense – were regulated both by customary
The Court examined evidence and found that in early law and treaty law, in particular the Charter of the United Nations.
1984 mines were laid in or close to ports of the territorial Yet, the United States had entered into a multilateral
sea or internal waters of Nicaragua “by persons in the pay treaty reservation, which did not, for example, allow the Court to
or acting ion the instructions” of the United States and rely on the Charter of the United Nations. The Court sought to rely,
acting under its supervision with its logistical support. The instead, exclusively on customary law relating to the use of force. In
United States did not issue any warning on the location or doing so, it held that multilateral treaty reservations cannot preclude
existence of mines and this resulted in injuries and the Court from relying on customary international law because,
increases in maritime insurance rates. even if treaty provisions and customary law deal with the same
subject matter, customary law exists independently of treaty law.
The Court found that the United States also carried out
high-altitude reconnaissance flights over Nicaraguan (2) Relationship between treaty and customary international
territory and certain low-altitude flights, complained of as law
causing sonic booms. It held that a State’s sovereignty
extends to its internal waters, its territorial sea, and the The Court examined the relationship in two contexts to
airspace above its territory. The United States violated demonstrate that customary and treaty law co-exist:
customary international law when it laid mines in the
territorial sea and internal waters of Nicaragua and when it
(a) where the customary law principles were identical to treaty content. For example, it does not contain any specific rule whereby
provisions; and self-defence would warrant only measures which are proportional to
the armed attack and necessary to respond to it, a rule well
(b) where there were different rights or obligations under established in customary international law. Moreover, a definition of
customary and treaty law in respect of the same subject matter. the “armed attack” which, if found to exist, authorises the exercise
of the “inherent right” of self-defence, is not provided in the Charter,
and is not part of treaty law. It cannot therefore be held that Article
(a) Situations where the customary law principles were identical to 51 is a provision which “subsumes and supervenes” customary
treaty provisions. international law.”
1. In situations where customary law principles were identical to 2. In case of a divergence between treaty law and customary
treaty provisions, the Court held that even if principles of customary international law, for the parties to a treaty, amongst themselves,
international law were subsequently codified into treaties, they the treaty provisions apply as lex specialis. (see paras 180 and
continue to exist side by side. For parties to treaties, both 181).
customary and treaty law apply. If, for some reason, the treaty
ceases to apply between treaty parties, the identical customary law
provision continues to apply between them (para 178). 3. The Court explained the relationship between the Charter of the
United Nations and customary international law on the use of force
and self defense in the following manner:
2. The argument that customary international law exists alongside
treaty law was brought by Norway and Denmark in the North Sea
Continental Shelf Cases. In these cases, the two countries having “However, so far from having constituted a marked departure from
failed to attribute an obligation under Article 6 of the Geneva a customary international law which still exists unmodified, the
Conventions of 1958 to Germany, sought to bind Germany via Charter gave expression in this field to principles already present in
customary international law. The Court held that Article 6 did customary international law, and that law has in the subsequent
not reflect customary law at the time of the codification, and had four decades developed under the influence of the Charter, to such
not attained that status at the time of the determination. In an extent that a number of rules contained in the Charter have
the Nicaragua case, the Court relied on the North Sea Continental acquired a status independent of it. The essential consideration is
Shelf Cases to support its finding that principles of customary that both the Charter and the customary international law flow from
international law can exist side by side with identical treaty law a common fundamental principle outlawing the use of force in
provisions and that treaties do not supervene in a manner where international relations. The differences which may exist between
the customary law ceases to exist (para 177). the specific content of each are not, in the Court’s view, such as to
cause a judgment confined to the field of customary international
law to be ineffective or inappropriate (to the parties of the Charter
3. The Court also relied on Article 51 of the UN Charter to show who are bound by the Charter)… (text in brackets added)(para
that a treaty itself can recognise the existence of customary 181).”
international law with respect to the same subject matter. For
example, the Court said that the term “inherent” in Article 51
recognised that customary law rights of self-defense existed 4. The Court concluded that principles such as those of the non-use
alongside treaty provisions. of force, non-intervention, respect for the independence and
territorial integrity of States, right of collective self defense and the
freedom of navigation, continue to be binding as part of customary
4. Rules containing the same content could also be treated international law, “despite the operation of provisions of
differently in customary international law and in treaty law. For conventional law in which they have been incorporated.” (paras
example, treaty law may contain institutions or mechanisms to 191-193).
ensure the effective implementation of its provisions, including
provisions that reflect existing customary law. For example, a State
that exercises the right of self-defence under Article 51, according Analysis: Development of a parallel customary international
to the UN Charter, has an obligation to report the use of force law?
immediately to the Security Council. The Court held that this was a
treaty requirement and one that did not exist under customary law. In addition to the comments made above in italics, another
Interestingly, while the failure to report did not result in a breach of interesting aspect of the judgment is that it sought to
customary international law, the Court indicated that the United separate customary international law obligation from the identical
State’s failure to observe this requirement contradicted her claim to treaty obligation because of the jurisdictional bar to consider
be acting in self defense (see paras 200, 235). multilateral treaties. In its consideration of customary international
law it developed certain principles independently of the treaty.
(b) Situations where customary and treaty law rights and
obligations differed in respect of the same subject matter. For example, Article 2(4) of the UN Charter prohibits the threat or
use of force against another State. The Court held that the same
1. The Court discussed situations where customary international prohibition on the use of force could be found under customary
law and treaty law provisions were not identical. For example, the international law and as a jus cogens norm. The Court then went on
Court stated that concepts such as necessity and proportionality, or to categorize the use of force under customary law as either a
the definition of what constitutes an armed attack, are not found “grave use of force” (i.e. use of force amounting to an armed attack)
under Article 51, or the UN Charter, but in customary law. The or a “less grave use of force” (i.e. use of force that falls short of an
Court concluded that (1) this proves that customary international armed attack – for example, the threat to use force). The Court,
law continues to exist alongside treaty law and that (2) areas then, restricted the right of self-defense to a situation where there
governed by the two sources of law do not (always) overlap and the had been a grave use of force (or an armed attack, as defined by
rules do not (always) have the same content. The Court held: the Court).
If one were to hold that the relevant Charter principles were clear,
“…the Charter, having itself recognized the existence of this right precise and unambiguous, one could say this divorced
(inherent customary law right of self-defence under A. 51 of the UN interpretation could result in customary law developing in a manner
Charter), does not go on to regulate directly all aspects of its that is not in line with the Charter and thereby creating separate
rights/ regimes of law that govern the same subject matter. Then (4) The principle of non-intervention is customary international law.
the two regimes may become irreconcilable.
1. The Court began its analysis with two questions:
However, the fact remains that the Charter does leave room for “Notwithstanding the multiplicity of declarations by States accepting
interpretation – for example, on the definition of an armed attack or the principle of non-intervention, there remain two questions: first,
on the use of force. In cases of ambiguity, Article 31 of the Vienna what is the exact content of the principle… and secondly, is the
Convention on the Law of Treaties directs us to look at, inter alia, practice sufficiently in conformity with it for this to be a rule of
subsequent practice and any relevant rules of international law that customary international law?” The first question was discussed in a
maybe applicable. In other words, a treaty can be interpreted with previous post and will not be discussed here.
the assistance of customary and general principles of international
law. 3. On State practice, the Court noted that even if “examples of
trespass against this principle (of non-intervention) are not
In this case, the development of customary law would also mean a infrequent” (para 202), this did not affect the customary law nature
potential development of ambiguous treaty law – and a of the prohibition on non-intervention. The Court held:
reconciliation of treaty and customary law provisions.
“The significance for the Court of cases of State conduct prima
(3) The Court held that opinio juris and State practice remain facie inconsistent with the principle of non-intervention lies in the
necessary elements to determine the existence of customary nature of the ground offered as justification. Reliance by a State on
international law a novel right or an unprecedented exception to the principle
might, if shared in principle by other States, tend towards a
1. In the Nicaragua case, as the North Sea Continental Shelf Case, modification of customary international law. In fact however the
considered both the subjective element (opinio juris) and the Court finds that States have not justified their conduct by reference
objective element (State practice) as essential pre-requisites to the to a new right of intervention or a new exception to the principle of
formation and elucidation of a customary norm (para 207). its prohibition. The United States authorities have on some
occasions clearly stated their grounds for intervening in the affairs
of a foreign State for reasons connected with, for example, the
2. On State practice, the jurisprudence of the Nicaragua domestic policies of that country, its ideology, the level of its
case contained several important clarifications in respect of armaments, or the direction of its foreign policy. But these were
inconsistent State practice (para 186). The Court held that: statements of international policy, and not an assertion of rules of
existing international law.”
(a) For a customary rule to come into force, it is not necessary to
have complete consistency in State practice in respect of the rule. 4. On opinio juris, Court went on to hold, as before, that for a new
customary rule to be formed, Sate practice must be accompanied
(b) Inconsistent State practice does not affect the formation or by the opinio juris. The Court held:
existence of a customary principle so long as the inconsistency is
justified as a breach of the rule. “There have been in recent years a number of instances of foreign
intervention for the benefit of forces opposed to the government of
(c) This attempt at justifying a violation would only make the rule’s another State… It (the Court) has to consider whether there might
customary law nature stronger. be indications of a practice illustrative of belief in a kind of general
right for States to intervene, directly or indirectly, with or without
2. On opinio juris, the Nicaragua case jurisprudence elaborated armed force, in support of an internal opposition in another State,
on how to deduct opinio juris from acts of State. The Court held that whose cause appeared particularly worthy by reason of the political
the following reflected opinio juris: and moral values with which it was identified. For such a general
right to come into existence would involve a fundamental
modification of the customary law principle of non-
(a) the attitude of States towards certain General Assembly intervention.” (paras 206, 207).
resolutions.
5. The Court also noted that the United States has not sought to
“The effect of consent to the text of such resolutions cannot be justify its intervention in Nicaragua on legal grounds, but had only
understood as merely that of a “reiteration or elucidation” of the justified it at a political level. The United States had not asserted
treaty commitment undertaken in the Charter. On the contrary, it for itself legal right of intervention in these circumstances. The
may be understood as an acceptance of the validity of the rule or Court, without further analysis into State practice, almost
set of rules declared by the resolution by themselves…It would immediately proceeded to find that “…no such general right of
therefore seem apparent that the attitude referred to expresses an intervention, in support of an opposition within another State, exists
opinio juris respecting such rule (or set of rules), to be thenceforth in contemporary international law. The Court concludes that acts
treated separately from the provisions, especially those of an constituting a breach of the customary principle of non-intervention
institutional kind, to which it is subject on the treaty-law plane of the will also, if they directly or indirectly involve the use of force,
Charter” constitute a breach of the principle of non-use of force in
international relations (para 209).”
(b) Statements by State representatives.
6. The Court held that the prohibition on the use of force contained
(c) Obligations undertaken by States in international forums (the in Article 2(4) of the UN Charter has attained the status of a jus
Court provided the example of the Conference on Security and Co- cogens norm. The Court found this to be “A further confirmation of
operation in Europe, Helsinki) the validity as customary international law of the principle of the
prohibition of the use of force expressed in Article 2, paragraph 4,
of the Charter of the United Nations…” (para 190).
(d) The International Law Commission’s findings that a concept
amounts to a customary law principle.
“…(1) by conduct, by public statements and proclamations, and in (a) What was the customary law status of Article 6 at the time of
other ways, the Republic has unilaterally assumed the obligations drafting the Convention?
of the Convention; or has manifested its acceptance of the
conventional regime; or has recognized it as being generally 8. The Court held that the principle of equidistance, as contained in
applicable to the delimitation of continental shelf areas… Article 6 did not form a part of existing or emerging customary
international law at the time of drafting the Convention. The Court
(2) the Federal Republic had held itself out as so assuming, supported this finding based on (1) the hesitation expressed by the
accepting or recognizing, in such a manner as to cause other drafters of the Convention, the International Law Commission, on
States, and in particular Denmark and the Netherlands, to rely on the inclusion of Article 6 into the Convention and (2) the fact that
the attitude thus taken up” (the latter is called the principle of reservations to Article 6 was permissible under the Convention.
estoppel). The Court held:
“… Article 6 is one of those in respect of which, under the
2. The Court rejected the first argument. It said that only a ‘very reservations article of the Convention (Article 12) reservations may
definite very consistent course of conduct on the part of a State be made by any State on signing, ratifying or acceding, – for
would allow the Court to presume that the State had somehow speaking generally, it is a characteristic of purely conventional rules
become bound by a treaty (by a means other than in the formal and obligations that, in regard to them, some faculty of making
manner: i.e. ratification) when the State was ‘at all times fully able unilateral reservations may, within certain limits, be admitted;
and entitled to…’ accept the treaty commitments in a formal whereas this cannot be so in the case of general or customary law
manner. The Court held that Germany had not unilaterally assumed rules and obligations which, by their very nature, must have equal
obligations under the Convention. The court also took notice of the force for all members of the international community, and cannot
fact that even if Germany ratified the treaty, she had the option of therefore be the subject of any right of unilateral exclusion
entering into a reservation on Article 6, following which that exercisable at will by any one of them in its own favor…. The
particular article would no longer be applicable to Germany (in normal inference would therefore be that any articles that do not
other words, even if one were to assume that Germany had figure among those excluded from the faculty of reservation under
intended to become a party to the Convention, it does not Article 12, were not regarded as declaratory of previously existing
presuppose that it would have also undertaken those obligations or emergent rules of law …” (see para 65 for a counter argument
contained in Article 6). and the Court’s careful differentiation)
3. Note: The Vienna Convention on the Law of Treaties of 1969 (b) Did the provisions in Article 6 on the equidistance principle
(VCLT), which came into force in 1980, discusses in more attain the customary law status after the Convention came into
detail treaty obligations of third States (those States who are not force?
parties to the treaty). It clearly stipulates that obligations arise for
third States from a provision of a treaty only if (1) the actual parties 9. The Court then examined whether the rule contained in Article 6
to the treaty intended the provision to create obligations for third had become customary international law after the Convention
States; and (2) third State expressly accept those obligations in entered into force – either due the Convention itself (i.e., if enough
writing (Article 35 of the VCLT). The VCLT was not in force when States had ratified the Convention in a manner so as to fulfil the
the Court deliberated on this case. However, as seen above, the criteria specified below), or because of subsequent State practice
Court’s position is consistent the VCLT. (See the relevant (i.e. even if an adequate number of States had not ratified the
provisions of the Vienna Convention on the Law of Treaties). Convention, one could find sufficient State practice to meet the
criteria below). The Court held that Article 6 of the Convention had
4. The Court held that the existence of a situation of estoppel would not attained a customary law status. (Compare the 1958 Geneva
have allowed Article 6 to become binding on Germany – but held Convention with the four Geneva Conventions on 1949 relating
that Germany’s action did not support an argument for estoppel. to international humanitarian law in terms of the latter’s authority as
The Court also held that the mere fact that Germany may not have a pronouncement of customary international law).
specifically objected to the equidistance principle as contained in
Article 6, is not sufficient to state that the principle is now binding 10. For a customary rule to emerge the Court held that it
upon it. needed: (1) very widespread and representative participation in the
Convention, including States whose interests were specially
5. In conclusion, the Court held that Germany had not acted in affected (in this case, they were coastal States) (i.e. generality);
any manner so as to incur obligations contained in Article 6 of the and (2) virtually uniform practice (i.e. consistent and uniform usage)
Geneva Convention. The equidistance–special circumstances rule undertaken in a manner that demonstrates (3) a general recognition
was not binding on Germany by way of treaty law. of the rule of law or legal obligation (i.e. opinio juries). In the North
Sea Continental Shelf cases the court held that the passage of a
considerable period of time was unnecessary (i.e. duration) for the
2. Nature of the customary international law obligation: Is Germany formation of a customary law.
bound by the provisions of Article 6 of the Geneva Convention in so
far as they reflect customary international law?
Widespread and representative participation
11. The Court held that the first criteria was not met. The number of
ratifications and accessions to the Convention (39 States) were not
adequately representative or widespread.
Duration
12. The Court held that the duration taken for a customary law rule
to emerge is not as important as widespread and representative
participation, uniform usage, and the existence of an opinio juris. It
held that:
“Although the passage of only a short period of time (in this case, 3
– 5 years) is not necessarily, or of itself, a bar to the formation of a
new rule of customary international law on the basis of what was
originally a purely conventional rule, an indispensable requirement
would be that within the period in question, short though it might be,
State practice, including that of States whose interests are specially
affected, should have been both extensive and virtually uniform in
the sense of the provision invoked and should moreover have
occurred in such a way as to show a general recognition that a rule
of law or legal obligation is involved.”
Opinio juris
14. The Court examined 15 cases where States had delimited their
boundaries using the equidistance method, after the Convention
came into force (paras. 75 -77). The Court concluded that even if
there were some State practice in favour of the equidistance
principle, the Court could not deduct the necessary opinio juris from
this State practice. The North Sea Continental Shelf Cases
confirmed that both State practice (the objective element)
and opinio juris (the subjective element) are essential pre-requisites
for the formation of a customary law rule. This is consistent with
Article 38 (1) (b) of the Statute of the ICJ. The Court explained the
concept of opinio jurisand the difference between customs (i.e.
habits) and customary law:
“Not only must the acts concerned amount to a settled practice, but
they must also be such, or be carried out in such a way, as to
be evidence of a belief that this practice is rendered obligatory by
the existence of a rule of law requiring it. The need for such a
belief, i.e, the existence of a subjective element, is implicit in the
very notion of the opinio juris sive necessitatis. The States
concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual
character of the acts is not in itself enough. There are many
international acts, e.g., in the field of ceremonial and protocol,
which are performed almost invariably, but which are motivated
only by considerations of courtesy, convenience or tradition, and
not by any sense of legal duty.” (Para 77).
15. The Court concluded that the equidistance principle was not
binding on Germany by way of treaty or customary international
law. In the case of the latter, the principle had not attained a
customary international law status at the time of the entry into force
of the Geneva Convention or thereafter. As such, the Court held
that the use of the equidistance method is not obligatory for the
delimitation of the areas concerned in the present proceedings.