PEOPLE OF THE PHILIPPINES vs. ANDRE MARTI (193 SCRA 57) Case Digest

Facts:

On August 14, 1987, the appellant and his common-law wife, Shirley Reyes went to Manila Packaging and Export Forwarders to send packages to Zurich, Switzerland. It was received by Anita Reyes and ask if she could inspect the packages. Shirley refused and eventually convinced Anita to seal the package making it ready for shipment. Before being sent out for delivery, Job Reyes, husband of Anita and proprietor of the courier company, conducted an inspection of the package as part of standard operating procedures. Upon opening the package, he noticed a suspicious odor which made him took sample of the substance he found inside. He reported this to the NBI and invited agents to his office to inspect the package. In the presence of the NBI agents, Job Reyes opened the suspicious package and found dried-marijuana leaves inside. A case was filed against Andre Marti in violation of R.A. 6425 and was found guilty by the court a quo. Andre filed an appeal in the Supreme Court claiming that his constitutional right of privacy was violated and that the evidence acquired from his package was inadmissible as evidence against him.

Issue:

Can the Constitutional Right of Privacy be enforced against private individuals?

Ruling:

The Supreme Court held based on the speech of Commissioner Bernas that the Bill of Rights governs the relationship between the individual and the state.

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. It is not meant to be invoked against acts of private individuals. It will be recalled that Mr Job Reyes was the one who opened the box in the presence of the NBI agents in his place of business. The mere presence of the NBI agents did not convert the reasonable search effected by Mr. Reyes into a warrantless search and siezure proscribed by the constitution. Merely to observe and look at that which is in plain sight is not a search.

The judgement of conviction finding appeallant guilty beyond reasonable doubt of the crime charged was AFFIRMED.

Oposa vs. Factoran Case Digest (G.R. No. 101083, July 30, 1993)FACTS:

The plaintiffs in this case are all minors duly represented and joined by their parents. The first complaint was filed as a taxpayer's class suit at the Branch 66 (Makati, Metro Manila), of the Regional Trial Court, National capital Judicial Region against defendant (respondent) Secretary of the Department of Environment and Natural Reasources (DENR). Plaintiffs alleged that they are entitled to the full benefit,

use and enjoyment of the natural resource treasure that is the country's virgin tropical forests. They further asseverate that they represent their generation as well as generations yet unborn and asserted that continued deforestation have caused a distortion and disturbance of the ecological balance and have resulted in a host of environmental tragedies. 

Plaintiffs prayed that judgement be rendered ordering the respondent, his agents, representatives and other persons acting in his behalf to cancel all existing Timber License Agreement (TLA) in the country and to cease and desist from receiving, accepting, processing, renewing or approving new TLAs. 

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

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

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

ISSUES:

(1) Whether or not the plaintiffs have a cause of action.(2) Whether or not the complaint raises a political issue.(3) Whether or not the original prayer of the plaintiffs result in the impairment of contracts.

RULING:

First Issue: Cause of Action.

Respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for which any relief is provided by law. The Court did not agree with this. The complaint focuses on one fundamental legal right -- the right to a balanced and healthful ecology which is incorporated in Section 16 Article II of the Constitution. The said right carries with it the duty to refrain from impairing the environment and implies, among many other things, the judicious management and conservation of the country's forests. Section 4 of E.O. 192 expressly mandates the DENR to be the primary government agency responsible for the governing and supervising the exploration, utilization, development and conservation of the country's natural resources. The policy declaration of E.O. 192 is also substantially re-stated in Title XIV Book IV of the Administrative Code of 1987. Both E.O. 192 and Administrative Code of 1987 have set the objectives which will serve as the bases for policy formation, and have defined the powers and functions of the DENR. Thus, right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as DENR's duty to protect and advance the said right.

A denial or violation of that right by the other who has the correlative duty or obligation to respect or protect or respect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLA, which they claim was done with grave abuse of discretion, violated their right to a balance and

healthful ecology. Hence, the full protection thereof requires that no further TLAs should be renewed or granted.

After careful examination of the petitioners' complaint, the Court finds it to be adequate enough to show, prima facie, the claimed violation of their rights.

Second Issue: Political Issue.

Second paragraph, Section 1 of Article VIII of the constitution provides for the expanded jurisdiction vested upon the Supreme Court. It allows the Court to rule upon even on the wisdom of the decision of the Executive and Legislature and to declare their acts as invalid for lack or excess of jurisdiction because it is tainted with grave abuse of discretion.

Third Issue: Violation of the non-impairment clause.

The Court held that the Timber License Agreement is an instrument by which the state regulates the utilization and disposition of forest resources to the end that public welfare is promoted. It is not a contract within the purview of the due process clause thus, the non-impairment clause cannot be invoked. It can be validly withdraw whenever dictated by public interest or public welfare as in this case. The granting of license does not create irrevocable rights, neither is it property or property rights. 

Moreover, the constitutional guaranty of non-impairment of obligations of contract is limit by the exercise by the police power of the State, in the interest of public health, safety, moral and general welfare. In short, the non-impairment clause must yield to the police power of the State.

The instant petition, being impressed with merit, is hereby GRANTED and the RTC decision is SET ASIDE.

PEOPLE vs CAYAT

68 Phil. 12 – Political Law – Constitutional Law – Equal Protection – Requisites of a Valid

Classification – Bar from Drinking Gin

In 1937, there exists a law (Act 1639) which bars native non-Christians from drinking gin or

any other liquor outside of their customary alcoholic drinks. Cayat, a native of the Cordillera,

was caught with an A-1-1 gin in violation of this Act. He was then charged and sentenced to

pay P5.00 and to be imprisoned in case of insolvency. Cayat admitted his guilt but he

challenged the constitutionality of the said Act. He averred, among others, that it violated his

right to equal protection afforded by the constitution. He said this an attempt to treat them

with discrimination or “mark them as inferior or less capable race and less entitled” will meet

with their instant challenge. The law sought to distinguish and classify native non-Christians

from Christians.

ISSUE: Whether or not the said Act violates the equal protection clause.

HELD: No. The SC ruled that Act 1639 is valid for it met the requisites of a reasonable

classification. The SC emphasized that it is not enough that the members of a group have

the characteristics that distinguish them from others. The classification must, as an

indispensable requisite, not be arbitrary. The requisites to be complied with are;

(1) must rest on substantial distinctions;

(2) must be germane to the purposes of the law;

(3) must not be limited to existing conditions only; and

(4) must apply equally to all members of the same class.

Act No. 1639 satisfies these requirements. The classification rests on real or substantial, not

merely imaginary or whimsical, distinctions. It is not based upon “accident of birth or

parentage.” The law, then, does not seek to mark the non-Christian tribes as “an inferior or

less capable race.” On the contrary, all measures thus far adopted in the promotion of the

public policy towards them rest upon a recognition of their inherent right to equality in the

enjoyment of those privileges now enjoyed by their Christian brothers. But as there can be

no true equality before the law, if there is, in fact, no equality in education, the government

has endeavored, by appropriate measures, to raise their culture and civilization and secure

for them the benefits of their progress, with the ultimate end in view of placing them with

their Christian brothers on the basis of true equality.

Case: Case Concerning the Military and Paramilitary Activities In and Against

Nicaragua (Nicaragua vs United States) (Merits: focusing on matters relating to the use

of force and self-defence)

Year of Decision: 1986

Court: ICJ

NB: This blog post will discuss matters on the use of force and self-defence. If you would

like to read about the impact of the Nicaragua judgement on customary

international law and the US multilateral reservation please click here. 

Overview: The case involved military and paramilitary activities conducted by the United

States against Nicaragua from 1981 to 1984.  Nicaragua asked the Court to find that these

activities violated international law. 

Facts of the Case:

In July 1979 the Government of President Somoza collapsed following an armed opposition

led by the Frente Sandinista de Liberacibn Nacional (FSLN) .  The new government –

installed by FSLN – began to meet armed opposition from supporters of the former Somoza

Government and ex-members of the National Guard. The US – initially supportive of the new

government – changed its attitude when, according to the United States, it found that

Nicaragua was providing logistical support and weapons to guerrillas in El Salvador.  In April

1981 it terminated United States aid to Nicaragua and in September 1981, according to

Nicaragua, the United States “decided to plan and undertake activities directed against

Nicaragua”.

The armed opposition to the new Government was conducted mainly by

(1)  Fuerza Democratica Nicaragüense (FDN), which operated along the border with

Honduras, and (2)Alianza Revolucionaria Democratica (ARDE), which operated along the

border with Costa Rica, (see map of the region). Initial US support to these groups fighting

against the Nicaraguan Government (called “contras”) was covert. Later, the United

States officially acknowledged its support (for example: In 1983 budgetary legislation

enacted by the United States Congress made specific provision for funds to be used by

United States intelligence agencies for supporting “directly or indirectly military or

paramilitary operations in Nicaragua”).

Nicaragua also alleged that the United States is effectively in control of the contras, the

United States devised their strategy and directed their tactics and that they were paid for

and directly controlled by United States personal. Nicaragua also alleged that some attacks

were carried out by United States military – with the aim to overthrow the Government of

Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports and attacks

on ports, oil installations and a naval base. Nicaragua alleged that aircrafts belonging to the

United States flew over Nicaraguan territory to gather intelligence, supply to the contras in

the field and to intimidate the population.

The United States did not appear before the ICJ at the merit stages, after refusing to accept

the ICJ’s jurisdiction to decide the case. The United States at the jurisdictional phase of the

hearing, however, stated that it relied on an inherent right of collective self-defence

guaranteed in A. 51 of the UN Charter by “providing, upon request, proportionate and

appropriate assistance…” to Costa Rica, Honduras and El Salvador in response to

Nicaragua’s alleged acts aggression against those countries (paras. 126, 128). 

Questions before the Court:

Did the United States breach its customary international law obligation – not to

intervene in the affairs of another State – when it trained, armed, equipped and

financed the contra forces or encouraged, supported and aided the military and

paramilitary activities against Nicaragua?

Did the United States breach its customary international law obligation – not to use

force against another State – when it directly attacked Nicaragua in 1983 – 1984 and

when its activities in bullet point 1 above resulted in the use of force?

 If so, can the military and paramilitary activities that the United States undertook in

and against Nicaragua be justified as collective self-defence?

Did the United States breach its customary international law obligation – not to

violate the sovereignty of another State – when it directed or authorized its aircrafts

to fly over Nicaraguan territory and by acts referred to in bullet point 2 above?

Did the United States breach its customary international law obligations – not to

violate the sovereignty of another State, not to intervene in its affairs, not to use

force against another State and not to interrupt peaceful maritime commerce – when

it laid mines in the internal waters and the territorial sea of Nicaragua?

ICJ decision: The United States violated customary international law in relation to bullet

points 1, 2, 4 and 5 above. On bullet point 3, the Court found that the United States could

not rely on collective self-defence to justify its use of force against Nicaragua.

Relevant Findings of the Court:

1. The court held that the United States breached its customary international law

obligation – not to use force against another State: (1) when it directly attacked

Nicaragua in 1983 – 1984; and (2) when its activities with the contra forces

resulted in the threat or use of force  (see paras 187 -201). 

The Court held that:

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

customary international law.

In a controversial finding the court sub-classified the use of force as: (1) the “most

grave forms of the use of force” (i.e. those that constitute an armed attack) and (2)

the “less grave form” (i.e. organizing, instigating, assisting or participating in acts of

civil strife and terrorist acts in another State – when the acts referred to involve a

threat or use of force not amounting to an armed attack).

The United States violated the customary international law prohibition on the use of

force when it laid mines in Nicaraguan ports. It violated this prohibition when it

attacked Nicaraguan ports, oil installations and a naval base (see below). The United

States could justify its action on collective self-defence, if certain criteria were met –

this aspect is discussed below.

The United States violated the customary international law prohibition on the use of

force when it assisted the contras by “organizing or encouraging the organization of

irregular forces and armed bands… for incursion into the territory of another state”

and participated “in acts of civil strife…in another State”  when these acts involved

the threat or use of force.

The supply of funds to the contras did not violate the prohibition on the use of force.

Nicaragua argued that the timing of the offensives against it was determined by the

United States: i.e. an offensive could not be launched until the requisite funds were

available. The Court held that “…it does not follow that each provision of funds by the

United States was made to set in motion a particular offensive, and that that

offensive was planned by the United States.” The Court held further that  while the

arming and training of the contras involved  the threat or use of force against

Nicaragua, the supply of funds, in it self, only amounted to an  act of intervention in

the internal affairs of Nicaragua (para 227) – this aspect is discussed below.

What is an armed attack?

A controversial but interesting aspect of the Court’s judgement was its definition of

an armed attack. The Court held that an armed attack included:

(1) action by regular armed forces across an international border; and

(2) “the sending by or on behalf of a State of armed bands, groups, irregulars or

mercenaries, which carry out acts of armed force against another State of such gravity as to

amount to (inter alia) an actual armed attack conducted by regular forces, or its (the

State’s) substantial involvement therein”

NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX)

on the Definition of Aggression.

Mere frontier incidents are not considered as an armed attack – unless because of its

scale and effects it would have been classified as an armed attack if it was carried

out by regular forces.

Assistance to rebels in the form of provision of weapons or logistical support did not

constitute an armed attack – it can be regarded as a threat or use of force, or an

intervention in the internal or external affairs of other States (see paras 195, 230).

Under Article 51 of the UN Charter and under CIL – self-defence is only available

against a use of force that amounts to an armed attack (para 211). 

NB: In  in the Case Concerning Oil Platforms and the advisory opinion on the Legal

Consequences of of the Construction of a Wall in the Occupied Palestinian Territory

(hereinafter called the Palestine wall case) the ICJ upheld the definition of  “armed attack”

proposed in the Nicaragua case. In the Palestinian wall case, the attacks from which Israel

was claiming self defence originated from non-State actors. However, the Court held that

Article 51’s inherent right of self defence was  available to one State only against another

State (para 139). Judges Higgins, Buergenthal and Kooijmans opposed this narrow view.

Articles on State Responsibility, prepared by the International Law Commission, provided

significant guidance as to when acts of non-State actors may be attributed to States. These

articles, together with recent State practice relating attacks on terrorists operating from

other countries (see legal opinions surrounding the United States attack on Afghanistan),

may have widened the scope of an armed attack, and consequently, the right of self

defence, envisaged by the ICJ. 

2. The Court held that the United States could not justify its military and

paramilitary activities on the basis of collective self-defence.

Customary international law allows for exceptions to the prohibition on the use of

force – including the right to individual or collective self-defence (for a difference

between the two forms of self defence, click here). The United States, at an earlier

stage of the proceedings, had asserted that the Charter itself acknowledges the

existence of this customary international law right when it talks of the “inherent”

right of a State under Article 51 of the Charter (para.193).

When a State claims that it used force in collective self-defence, the Court would look

into two aspects:

(1) whether the circumstances required for the exercise of self-defence existed and

(2) whether the steps taken by the State, which was acting in self-defence, corresponds to

the requirements of international law (i.e. did it comply with the principles of necessity and

proportionality).

Several criteria must be met for a State to exercise the right of individual or

collective self-defence:

(1) A State must have been the victim of an armed attack;

(2) This State must declare itself as a victim of an armed attack; [NB: the assessment

whether an armed attack took place nor not is done by the state who was subjected to the

attack. A third State cannot exercise a right of collective self-defence based its (the third

State’s) own assessment]; and

(3) In the case of collective self-defence – the victim State must request for assistance

(“there is no rule permitting the exercise of collective self-defence in the absence of a

request by the State which regards itself as the victim of an armed attack”).

(4) The State does not, under customary international law, have the same obligation as

under Article 51 of the UN Charter to report to the Security Council that an armed attack

happened – but “the absence of a report may be one of the factors indicating whether the

State in question was itself convinced that it was acting in self-defence” (see below).

“At this point, the Court may consider whether in customary international law there is any

requirement corresponding to that found in the treaty law of the United Nations Charter, by

which the State claiming to use the right of individual or collective self-defence must report

to an international body, empowered to determine the conformity with international law of

the measures which the State is seeking to justify on that basis. Thus Article 51 of the

United Nations Charter requires that measures taken by States in exercise of this right of

self-defence must be “immediately reported” to the Security Council. As the Court has

observed above (paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in

customary international law, may well be so unencumbered with the conditions and

modalities surrounding it in the treaty. Whatever influence the Charter may have had on

customary international law in these matters, it is clear that in customary international law it

is not a condition of the lawfulness of the use of force in self-defence that a procedure so

closely dependent on the content of a treaty commitment and of the institutions established

by it, should have been followed. On the other hand, if self-defence is advanced as a

justification for measures which would otherwise be in breach both of the principle of

customary international law and of that contained in the Charter, it is to be expected that

the conditions of the Charter should be respected. Thus for the purpose of enquiry into the

customary law position, the absence of a report may be one of the factors indicating

whether the State in question was itself convinced that it was acting in self-defence (See

paras 200, 232 -236)”. 

The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica

and Honduras in determining whether an armed attack was undertaken by Nicaragua

against the three countries – which in turn would necessitate self-defence (paras 230

– 236). The Court referred to statements made by El Salvador, Costa Rica, Honduras

and the United States before the Security Council. None of the countries who were

allegedly subject to an armed attack by Nicaragua (1) declared themselves as a

victim of an armed attack or request assistance from the United States in self-

defence – at the time when the United States was allegedly acting in collective self-

defence; and (2) the United States did not claim that it was acting under Article 51 of

the UN Charter and it did not report that it was so acting to the Security Council. The

Court concluded that the United States cannot justify its use of force as collective

self-defence.

 The criteria with regard to necessity and proportionality, that is necessary when

using force in self-defence – was also not fulfilled (para 237).

 3. The Court held that the United States breached its CIL obligation – not to

intervene in the affairs of another State – when it trained, armed, equipped and

financed the contra forces or encouraged, supported and aided the military and

paramilitary activities against Nicaragua. 

The principle of non- intervention means that every State has a right to conduct its

affairs without outside interference – i.e it “…forbids States or groups of States to

intervene directly or indirectly in internal or external affairs of other States.” . This is

a corollary of the principle of sovereign equality of States.

A prohibited intervention must accordingly be one bearing on matters in which each State is

permitted, by the principle of State sovereignty to decide freely. One of these is the choice

of a political, economic, social and cultural system, and the formulation of foreign policy.

Intervention is wrongful when it uses methods of coercion in regard to such choices, which

must remain free ones. The element of coercion, which defines, and indeed forms the very

essence of, prohibited intervention, is particularly obvious in the case of an intervention

which uses force, either in the direct form of military action, or in the indirect form of

support for subversive or terrorist armed activities within another State (para 205).

Nicaragua stated that the activities of the United States were aimed to overthrow the

government of Nicaragua and to substantially damage the economy and weaken the

political system to coerce the Government of Nicaragua to accept various political

demands of the United States. The Court held:

 “…first, that the United States intended, by its support of the contras, to coerce the

Government of Nicaragua in respect of matters in which each State is permitted, by the

principle of State sovereignty, to decide freely (see paragraph 205 above) ; and secondly

that the intention of the contras themselves was to overthrow the present Government of

Nicaragua… The Court considers that in international law, if one State, with a view to the

coercion of another State, supports and assists armed bands in that State whose purpose is

to overthrow the government of that State, that amounts to an intervention by the one State

in the internal affairs of the other, whether or not the political objective of the State giving

such support and assistance is equally far reaching.”

The financial support, training, supply of weapons, intelligence and logistic support

given by the United States to the contras was a breach of the principle of non-

interference. “…no such general right of intervention, in support of an opposition

within another State, exists in contemporary international law”, even if such a

request for assistance is made by an opposition group of that State (see para 246 for

more).

However, in a controversial finding, the Court held that the United States did

not devise the strategy, direct the tactics of the contras or exercise control on them

in manner so as to make their acts committed in violation of international law

imputable to the United States (see in this respect “Determining US responsibility for

contra operations under international law” 81 AMJIL 86).T he Court concluded that “a

number of military and paramilitary operations of the contras were decided and

planned, if not actually by United States advisers, then at least in close collaboration

with them, and on the basis of the intelligence and logistic support which the United

States was able to offer, particularly the supply aircraft provided to the contras by

the United States” but not all contra operations reflected strategy and tactics wholly

devised by the United States.

“In sum, the evidence available to the Court indicates that the various forms of assistance

provided to the contras by the United States have been crucial to the pursuit of their

activities, but is insufficient to demonstrate their complete dependence on United States aid.

On the other hand, it indicates that in the initial years of United States assistance the contra

force was so dependent. However, whether the United States Government at any stage

devised the strategy and directed the tactics of the contras depends on the extent to which

the United States made use of the potential for control inherent in that dependence. The

Court already indicated that it has insufficient evidence to reach a finding on this point. It is

a fortiori unable to determine that the contra force may be equated for legal purposes with

the forces of the United States…The Court has taken the view (paragraph 110 above) that

United States participation, even if preponderant or decisive, in the financing, organizing,

training, supplying and equipping of the contras, the selection of its military or paramilitary

targets, and the planning of the whole of its operation, is still insufficient in itself, on the

basis of the evidence in the possession of the Court, for the purpose of attributing to the

United States the acts committed by the contras in the course of their military or

paramilitary operations in Nicaragua. All the forms of United States participation mentioned

above, and even the general control by the respondent State over a force with a high degree

of dependency on it, would not in themselves mean, without further evidence, that the

United States directed or enforced the perpetration of the acts contrary to human rights and

humanitarian law alleged by the applicant State. Such acts could well be committed by

members of the contras without the control of the United States. For this conduct to give

rise to legal responsibility of the United States, it would in principle have to be proved that

that State had effective control of the military or paramilitary.”

Interesting, however, the Court also held that providing “…humanitarian aid to

persons or forces in another country, whatever their political affiliations or objectives,

cannot be regarded as unlawful intervention, or as in any other way contrary to

international law” (para 242).

 In the event one State intervenes in the affairs of another State, the victim State has

a right to intervene in a manner that is short of an armed attack (210).

“While an armed attack would give rise to an entitlement to collective self-defence, a use of

force of a lesser degree of gravity cannot as the Court has already observed (paragraph 21 1

above). produce any entitlement to take collective countermeasures involving the use of

force. The acts of which Nicaragua is accused, even assuming them to have been

established and imputable to that State, could only have justified proportionate counter-

measures on the part of the State which had been the victim of these acts, namely El

Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third

State, the United States, and particularly could not justify intervention involving the use of

force.”

4. The United States breached its customary international law obligation – not to

violate the sovereignty of another State – when it directed or authorized its

aircrafts to fly over Nicaraguan territory and when it laid mines in the internal

waters of Nicaragua and its territorial sea.

The  ICJ examined evidence and found that in early 1984 mines were laid in or close

to ports of the territorial sea or internal waters of Nicaragua “by persons in the pay or

acting ion the instructions” of the United States and acting under its supervision with

its logistical support.  The United States did not issue any warning on the location or

existence of mines and this resulted in injuries and increases in maritime insurance

rates.

The court found that the United States also carried out high-altitude reconnaissance

flights over Nicaraguan territory and  certain low-altitude flights, complained of as

causing sonic booms.

The basic concept of State sovereignty in customary international law is found in

Article 2(1) of the UN Charter. State sovereignty extends to a State’s internal

waters, its territorial sea and the air space above its territory. The United States

violated customary international law when it laid mines in the territorial sea and

internal waters of Nicaragua and when it carried out unauthorised overflights

over Nicaraguan airspace by aircrafts that belong to or was under the control of

the United States. In re Yamashita U.S. Supreme Court 327 U.S. 1, 13-16, 28, 34-35 (1946) FACTS After World War II, Japanese General Tomoyuki Yamashita was tried before a U.S. military

tribunal in Manilla for war crimes committed by troops under his command.   -U.S. claimed that D failed to discharge his duty as a commander to control the operations of the

members of his command, allowing them to commit brutal atrocities and other high crimes against the U.S. and allies and was in violation of laws of war.

ISSUE

Does the law of war impose upon an army commander to take appropriate measures to control his troops for prevention of violations of the law of war which are likely to attend occupation of hostile territory, and whether he may be charged with personal responsibility for the failure to take such measures when violations result?

HOLDING There is an affirmative duty to take such measures as were in his power and appropriate in the

circumstances to protect prisoners of war and civilians. DISCUSSION Purpose of the law is to protect civilians and prisoners of war from brutality.   Fourth Hague Convention of 1907 :  Armed force must be commanded by a person responsible

for his subordinates.

Name of the Case: The North Sea Continental Shelf Cases (Germany/Denmark;

Germany/Netherlands); Year of Decision: 1969; and Court: ICJ.

NB: This post discussed only  aspects of the case related to treaty or customary

international law.

Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the

dual requirement for forming customary international law – State practice (objective

element) and opinio juris (subjective element). It elaborated the criteria necessary to

establish State practice – widespread and representative participation. The case

highlighted that the State practice of importance were of those States whose

interests were affected by the custom. It also identified the fact that uniform

and consistent practice was necessary to show opinio juris – a belief that the practice

amounts to a legal obligation. The North Sea Continental Self Cases also dispelled the

myth that duration of the practice (i.e. the number of years) was an essential factor

in forming customary international law. 

The case involved the delimitation of the continental shelf areas in the North Sea

between Germany and Denmark and Germany and Netherlands beyond the partial

boundaries previously agreed upon by these States. The parties requested the ICJ to

decide the principles and rules of international law that are applicable to the above

delimitation. The parties disagreed on the applicable principles or rules of

delimitation – Netherlands and Denmark relied on the principle of equidistance (the

method of determining the boundaries in such a way that every point in the

boundary is equidistant from the nearest points of the baselines from which the

breath of the territorial sea of each State is measured). Germany sought to get a

decision in favour of the notion that the delimitation of the relevant continental shelf

is governed by the principle that each coastal state is entitled to a just and equitable

share (hereinafter called just and equitable principle/method). Contrary to Denmark

and Netherlands, Germany argued that the principle of equidistance was neither a

mandatory rule in delimitation of the continental shelf nor a rule of customary

international law that was not binding on Germany. The court was not asked to

delimit – the parties agreed to delimit the continental shelf as between their

countries, by agreement, after the determination of the ICJ on the applicable

principles.

Facts of the Case:

Netherlands and Denmark had drawn partial boundary lines based on the

equidistance principle(A-B and C-D). An agreement on further prolongation of the

boundary proved difficult because Denmark and Netherlands wished this

prolongation to take place based on the equidistance principle (B-E and D-E) where

as Germany was of the view that, together, these two boundaries would produce an

inequitable result for her. Germany stated that due to its concave coastline, such a

line would result in her loosing out on her share of the continental shelf based on

proportionality to the length of its North Sea coastline. The Court had to decide the

principles and rules of international law applicable to this delimitation. In doing so,

the court had to decide if the principles espoused by the parties were binding on the

parties either through treaty law or customary international law.

Questions before the Court (as relevant to this post):

Is Germany under a legal obligation to accept the equidistance-special circumstances

principle, contained in Article 6 of the Geneva Convention, either as a customary

international law rule or on the basis of the Geneva Convention?

The Court’s Decision:

The use of the equidistance method had not crystallised into customary law and was

is not obligatory for the delimitation of the areas in the North Sea related to the

present proceedings.

Relevant Findings of the Court:

Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular

Article 6, binding on Germany?

1. Article 6 of the Geneva Convention on the Continental Shelf states that unless the

parties have agreed on a method for delimitation or unless special circumstances

exist, the equidistance method would apply (see Article 6). Germany has signed but

not ratified the Geneva Convention, while Netherlands and Denmark are parties to

the Convention. The latter two States argue that while Germany is not a party to the

Convention (not having ratified it), she is still bound by Article 6 of the Convention

because:

“…(1)  by conduct, by public statements and proclamations, and in other

ways, the Republic has unilaterally assumed the obligations of the

Convention; or has manifested its acceptance of the conventional regime; or

has recognized it as being generally applicable to the delimitation of

continental shelf areas…

(2) the Federal Republic had held itself out as so assuming, accepting or

recognizing, in such a manner as to cause other States, and in particular

Denmark and the Netherlands, to rely on the attitude thus taken up” (the

latter is called the principle of estoppel).

2. The Court rejected the first argument. It stated that only a ‘very definite very

consistent course of conduct on the part of a State’ would allow the court to presume

that a State had somehow become bound by a treaty (by a means other than in a

formal manner: i.e. ratification) when the State was ‘at all times fully able and

entitled to…’ accept the treaty commitments in a formal manner. The Court held that

Germany had not unilaterally assumed obligations under the Convention. The court

also took notice of the fact that even if Germany ratified the treaty, she had the

option of entering into a reservation on Article 6 following which that particular article

would no longer be applicable to Germany (i.e. even if one were to assume that

Germany had intended to become a party to the Convention, it does not presuppose

that it would have also undertaken those obligations contained in Article 6).

3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into

force in 1980, discusses more fully the obligations of third States to treaties. It clearly

stipulates that an obligation arises for a third State from a provision of a treaty only if

(1) the parties to the treaty intend the provision to create this obligation for the third

States; and (2) the third State expressly accepts that obligation in writing (A. 35 of

the VCLT). The VCLT was not in force when the ICJ deliberated on this case. However,

as  seen above, the ICJ’s position was consistent the VCLT. (See the relevant

provisions of the Vienna Convention on the Law of Treaties).

4. The court held that the existence of a situation of estoppel would have allowed

Article 6 to become binding on Germany – but held that Germany’s action did not

support an argument for estoppel. The court also held that the mere fact that

Germany may not have specifically objected to the equidistance principle as

contained in Article 6 is not sufficient to state that the principle is now binding upon

it.

5. In conclusion, the court held that Germany had not acted in any way to incur

obligations contained in Article 6 of the Geneva Convention. The equidistance –

special circumstances rule was not binding on Germany by way of treaty.

Nature of the customary international law obligation: Is Germany bound by the

provisions of Article 6 of the Geneva Convention by way of customary international

law?

6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of

general international law on the subject of continental shelf delimitation’ and existed

independently of the Convention. Therefore, they argued, Germany is bound by it by

way of customary international law.

7. To decide if the equidistance principle bound Germany by way of customary

international law, the court examined (1) the status of the principle contained in

Article 6 as it stood when the Convention was being drawn up (2) and after the latter

came into force.

What was the customary law status of Article 6 at the time of drafting the

Convention?

8. The court held the principle of equidistance, as contained in Article 6, did not form

a part of existing or emerging customary international law at the time of drafting the

Convention. The Court supported this finding based on (1) the hesitation expressed

by the drafters of the Convention – International Law Commission – on the inclusion

of Article 6 (para. 62) and (2) the fact reservations to Article 6 was permissible under

the Convention (Article 12). The court held:

… Article 6 is one of those in respect of which, under the reservations article of the

Convention (Article 12) reservations may be made by any State on signing, ratifying

or acceding for, speaking generally, it is a characteristic of purely conventional rules

and obligations that, in regard to them, some faculty of making unilateral

reservations may, within certain limits, be admitted; whereas this cannot be so in the

case of general or customary law rules and obligations which, by their very nature,

must have equal force for all members of the international community, and cannot

therefore be the subject of any right of unilateral exclusion exercisable at will by any

one of them in its own favor…. The normal inference would therefore be that any

articles that do not figure among those excluded from the faculty of reservation

under Article 12, were not regarded as declaratory of previously existing or emergent

rules of law (see para 65 for a counter argument and the court’s careful

differentiation)…”

Did the provisions in Article 6 on the equidistance principle attain the customary law

status after the Convention came into force?

9. The court then examined whether the rule contained in Article 6 had become

customary international law after the Convention entered into force – either due the

convention itself (i.e., if enough States had ratified the Convention in a manner to

fulfil the criteria specified below), or because of subsequent State practice (i.e. even

if adequate number of States had not ratified the Convention one could find sufficient

State practice to meet the criteria below). The court held that Article 6 of the

Convention had not attained a customary law status (compare the 1958 Geneva

Convention with the four Geneva Conventions on 1949 in the field of international

humanitarian law in terms of its authority as a pronouncement of customary

international law).

10. For a customary rule to emerge the court held that it needed: (1) very

widespread and representative participation in the convention, including States

whose interests were specially affected (i.e. generality); and (2) virtually uniform

practice (i.e. consistent and uniform usage) undertaken in a manner that

demonstrates (3) a general recognition 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

formation of a customary 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

(including of coastal States – i.e. those States whose rights are affected) or

widespread.

Duration

12. The court held that duration taken for the customary law rule to emerge is not as

important as widespread and representative participation, uniform usage and the

existence of an opinio juris.

“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 (text in brackets

added).”

Opinio juris

13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus

case) in so far as those acts or omissions are done following a belief that the said

State is obligated by law to act or refrain from acting in a particular way. (For more

on opinio juris click here).

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, 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 following explains 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.

15.  The court concluded that the equidistance principle was not binding on Germany

by way of treaty or customary international law because, in the case of the latter, the

principle had not attained a customary international law status at the time of the

entry into force of the Geneva Convention or thereafter. As such, the court held that

the use of the equidistance method is not obligatory for the delimitation of the areas

concerned in the present proceedings.

Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain) case brief

Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain)

Procedural History:Action for damages for the expropriation of a corporation.

Overview:-Belgium (P) brought an action for damages against Spain (D) on the ground that its nationals as shareholders of the Barcelona Traction Co., incorporated and registered in Canada, had been seriously harmed by actions of Spain (D) resulting in  expropriation.  -The Barcelona Traction, Light, and Power Co. was incorporated and registered in Canada for the purpose of developing and operating electrical power in Spain (D).-After the Spanish Civil War, the company was declared bankrupt by a Spanish court and its assets were seized.-After the Canadian interposition ceased, Belgium (P) brought an action for damages against Spain (D) for what it termed expropriation of the assets of the Traction Co. on the ground that a large majority of the stock of the company was owned by Belgian

(P) nationals.-Spain (D) raised the preliminary objection that Belgium (P) lacked standing to bring suit for damages to a Canadian company.

Issue:Does the state of the shareholders of a company have a right of diplomatic protection if the state whose responsibility is invoked is not the national state of the company?

Outcome:No. In order for a state to bring a claim in respect of the breach of an obligation owed to it, it must first establish its right to do so. This right is predicated on a showing that the defendant state has broken an obligation toward the national state in respect of its nationals. In the present case it is therefore essential to establish whether the losses allegedly suffered by Belgian (P) shareholders in Barcelona Traction were the consequence of the violation of obligations of which they are beneficiaries.-In the present state of the law, the protection of shareholders requires that recourse be had to treaty stipulations or special agreements directly concluded between the private investor and the state in  which the investment is placed. Barring such agreements, the obligation owed is to the corporation, and only the state of incorporation has standing to bring an action for violations of such an obligation. Nonetheless, for reasons of equity a  theory has been developed to the effect that the state of the shareholders has a right of diplomatic protection when the state whose responsibility is invoked is the national state of the company. This theory, however, is not applicable to the present case, since Spain (D) is not the national state of Barcelona Traction. Barcelona Traction could have approached its national state, Canada, to ask for its diplomatic protection.-For the above reasons, the Court is of the opinion that Belgium (P) lacks standing to bring this action.

Rule:the state of a shareholders corporation has a right of diplomatic protection only when the state whose responsibility is invoked is the national state of the company.

Analysis: The Restatement of the Foreign Relations Law of the United States. § 185, states that failure of a state to pay just compensation for the taking of the property of an alien is wrongful under international law, regardless of whether the taking itself is conceived as wrongful. Such a wrongful taking is characterized either as tortious conduct or as unjust enrichment

Marcos vs. Manglapus, [G.R. # 88211 September 15, 1989 ]

Marcos vs. Manglapus, [G.R. # 88211 September 15, 1989 ]

Post under case digests, Political Law at Sunday, February 26, 2012 Posted by Schizophrenic Mind

Facts: Ferdinand E. Marcos was deposed from the presidency and was forced into exile. Corazon Aquino’s ascension into presidency was challenged by failed coup attempts as well as by plots of Marcos loyalists and the Marcoses themselves. Marcos, in his deathbed, has signified his wish to return to the

Philipppines to die. But President Aquino, considering the dire consequences to the nation of his return has stood firmly on the decision to bar the return of Mr. Marcos and his family. Hence, this petition for mandamus and prohibition asks the Courts to order the respondents to issue travel documents to Mr. Marcos and the immediate members of his family and to enjoin the implementation of the President's decision to bar their return to the Philippines. 

Issues: Whether or not the President has the power to bar the return of Marcos to the Philippines. Assuming that she has the power to bar, was there a finding made that there is a clear and present danger to the public due to the return? And have the requirements of due process been complied with in the making of the finding? 

HELD: Petition Dismissed. 

The request of the Marcoses must not be treated only in the light of constitutional provisions, it must be treated as a matter that is appropriately addressed to those residual unstated powers of the President which are implicit in to the paramount duty residing in that office to safeguard and protect general welfare. Such request or demand should submit to the exercise of a broader discretion on the part of the President to determine whether it must be granted or denied. 

It is found by the Court that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, wherein petitioners and respondents were represented, that there exist factual bases for the President's decision. Hence, this act cannot be said to have been done arbitrarily or capriciously. Further, the ponencia (the coups, the communist threat, peace and order issues especially in Mindanao, Marcos loyalists plotting) bolsters the conclusion that the return of Marcos will only exacerbate the situation in the country. 

Another reason of the Court...“We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships brought about by the plunder of the economy attributed to the Marcoses and their close associates and relatives, many of whom are still here in the Philippines in a position to destabilize the country, while the Government has barely scratched the surface, so to speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions.”

Pretty v. United Kingdom , (2346/02) [2002] ECHR 423 (29 April 2002) Facts : the applicant was dying of a neuron disease. She was paralyzed but could make

decisions. She wanted to die to be spared of suffering and indignity but could not do it by herself. She thus wanted her husband to help her commit suicide. However, it was a crime to assist another to commit suicide under the British laws and her request to guarantee her husband freedom from prosecution if he helped her was refused.

Complaint : The applicant claimed that the U.K. violated Article 3 (prohibition of inhuman or degrading treatment or punishment), Article 2 (right to life), Article 8 (right to respect for private life), Article 9 (freedom of conscience) and Article 14 (prohibition of discrimination)

Holding : the ECHR found no violation of article 2, 3, 8, 9 and 14 Reasoning : Article 2 � 1 enjoined States to refrain from the unlawful taking of life and

to take appropriate steps to safeguard lives. Article 2 could not be interpreted as conferring a right to die so there was no violation of article 2. Moreover, as article 3 was construed in conjunction with Article 2 there was no violation of article 3 either.SAHIN VS TURKEY

Brief Fact Summary. A Turkish Muslim by the name Sahin (P) alleged that the

Republic of Turkey (D) violated her rights and freedom under the Convention for the

Protection of Human Rights and Fundamental Freedoms by banning the wearing of the

Islamic headscarf in institutions of higher education.

Synopsis of Rule of Law. Students rights and freedom under the Convention for the

Protection of Human Rights and Fundamental Freedoms are not violated when a

secular country places a ban on wearing religious clothing in institutions of higher

education.

Facts. Sahin (P) had a traditional background of family practicing Muslims and

considered it her religious duty to wear the Islamic headscarf. When she was in her 5th

year at the faculty of medicine of the University of Istanbul in 1998, the Vice-Chancellor

of the University issued a circular which stipulated that students with beards and

wearing the Islamic headscarf would be refused admission to lectures, courses and

tutorials. Sahin (P) was denied access to a written exam and the University authorities

refused to enroll her in a course and to admit her to various lectures and other written

exams because of the Islamic headscarf she was putting on. She later left the University

to further her studies in Vienna and had lived in Vienna since then. Before leaving

Istanbul, Sahin (P) filed an application against the Republic of Turkey (P) with the

European Commission of Human Rights and Fundamental Freedoms alleging that her

rights and freedom under the Convention had been violated. A judgment was rendered

by the European Court after it heard the case.

Issue. Are students’ rights and freedom under the Convention for the Protection of

Human Rights and Fundamental Freedoms violated when a secular country places a

ban on the wearing of religious clothing in institutions of higher learning?

Held. No. Student’s rights and freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms are not violated when a secular country places a ban on wearing religious clothing in institutions of higher education. Constitutionally, Turkey (D) is a secular state founded on the principles of equality without regard to distinctions based on sex, religion or denomination. In 1989, Turkey’s (D) Constitutional Court decided that granting legal recognition to a religious symbol such as the Islamic headscarf was not compatible with the principle that the state education must be neutral and might generate conflicts between students of different religions. The Vice Chancellor explained the banning of the headscarf at the University School of Medicine in a memorandum which was circulated that the ban was not intended to infringe on students freedom of conscience or religion, but to comply with the laws and regulations in force and that such compliance would be sensitive to patients’ rights. Hence, the ban did not prohibit Muslim students from manifesting their religion in accordance with habitual forms of Muslim observance and it was not directed only at Muslim attire. So the view of the Court should not be interchanged for that of the University who are better placed to evaluate local needs. The right to behave in a manner governed by a religion belief is not guaranteed by Article 9 and it also does not confer on people who do so the right to disregard rules that have proved to be justified. By giving due regard to Turkey’s (D) margin of appreciation, the interference here was justified in principle and proportionate to aim pursued. Hence, Article 9 was not contravened.