PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINESvs.

HEALTH SECRETARY FRANCISCO T. DUQUE III

FACTS: On October 28, 1986, Executive Order No. 51 (Milk Code) was issued by
President Corazon Aquino by virtue of the legislative powers granted to the president
under the Freedom Constitution. The Milk Code states that the law seeks to give effect to
Article 112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a
code adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the
WHA adopted several Resolutions to the effect that breastfeeding should be supported,
promoted and protected, hence, it should be ensured that nutrition and health claims
are not permitted for breastmilk substitutes. the Philippines ratified the International
Convention on the Rights of the Child. Article 24 of said instrument provides that State
Parties should take appropriate measures to diminish infant and child mortality, and
ensure that all segments of society, specially parents and children, are informed of the
advantages of breastfeeding. the DOH issued RIRR which was to take effect on July 7,
2006. a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify
Revised Implementing Rules and Regulations of The “Milk Code,” assailing that the
RIRR was going beyond the provisions of the Milk Code, thereby amending and
expanding the coverage of said law.
ISSUE: Whether or not respondents officers of the DOH acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and in violation of the provisions of the Constitution in promulgating the
RIRR
RULING:
The Supreme Court PARTIALLY GRANTED the petition. Sections 4(f), 11 and 46 of
Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID
for being ultra vires. The Department of Health and respondents are PROHIBITED
from implementing said provisions. The international instruments pointed out by the
respondents, UNRC, ICESR, CEDAW, are deemed part of the law of the land and
therefore the DOH may implement them through the RIRR. Customary international
law is deemed incorporated into our domestic system. Custom or customary
international law means “a general and consistent practice of states followed by them
from a sense of legal obligation (opinio juris). Under the 1987 Constitution,
international law can become part of the sphere of domestic law either by
transformation or incorporation. The transformation method requires that an
international law be transformed into a domestic law through a constitutional
mechanism such as local legislation. “Generally accepted principles of international law”
refers to norms of general or customary international law which are binding on all
states. The Milk Code is a verbatim reproduction of the (ICMBS), but it did not prohibit
advertising or other forms of promotion to the general public of products. Instead, the
Milk Code expressly provides that advertising, promotion, or other marketing materials
may be allowed if such materials are duly authorized and approved by the Inter-Agency
Committee (IAC). In this regard, the WHA Resolutions adopting the ICMBS are merely
recommendatory and legally non-binding. This may constitute “soft law” or non-binding
norms, principles and practices that influence state behavior. Respondents have not
presented any evidence to prove that the WHA Resolutions, although signed by most of
the member states, were in fact enforced or practiced by at least a majority of the
member states and obligatory in nature. The provisions of the WHA Resolutions cannot
be considered as part of the law of the land that can be implemented by executive
agencies without the need of a law enacted by the legislature. On the other hand, the
petitioners also failed to explain and prove by competent evidence just exactly how such
protective regulation would result in the restraint of trade. Since all the regulatory
provisions under the Milk Code apply equally to both manufacturers and distributors,
the Court sees no harm in the RIRR. Except Sections 4(f), 11 and 46, the rest of the
provisions of the RIRR are in consonance with the objective, purpose and intent of the
Milk Code.

Mijares v. Ranada

Facts:

Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom suffered human rights violations
during the Marcos era, obtained a Final Judgment in their favor against the Estate of the late
Ferdinand Marcos amounting to roughly 1.9 Billion U.S. Dollars in compensatory and exemplary
damages for tortuous violations of international law in the US District Court of Hawaii. This Final
Judgment was affirmed by the US Court of Appeals.

As a consequence, Petitioners filed a Complaint with the Regional Trial Court of Makati for the
enforcement of the Final Judgment, paying Php 410.00 as docket and filing fees based on Rule
141, Section 7(b) where the value of the subject matter is incapable of pecuniary estimation. The
Estate of Marcos however, filed a MTD alleging the non-payment of the correct filing fees. The
Regional Trial Court of Makati dismissed the Complaint stating that the subject matter was
capable of pecuniary estimation as it involved a judgment rendered by a foreign court ordering
the payment of a definite sum of money allowing for the easy determination of the value of the
foreign judgment. As such, the proper filing fee was 472 Million Philippine pesos, which Petitioners
had not paid.

Issue:

Whether or not the amount paid by the Petitioners is the proper filing fee?

Ruling:

Yes, but on a different basis—amount merely corresponds to the same amount required for “other
actions not involving property”. The Regional Trial Court of Makati erred in concluding that the
filing fee should be computed on the basis of the total sum claimed or the stated value of the
property in litigation. The Petitioner’s Complaint was lodged against the Estate of Marcos but it is
clearly based on a judgment, the Final Judgment of the US District Court. However, the Petitioners
erred in stating that the Final Judgment is incapable of pecuniary estimation because it is so
capable. On this point, Petitioners state that this might lead to an instance wherein a first level
court (MTC, MeTC, etc.) would have jurisdiction to enforce a foreign judgment. Under Batasang
Pambansa 129, such courts are not vested with such jurisdiction. Section 33 of Batasang
Pambansa 129 refers to instances wherein the cause of action or subject matter pertains to an
assertion of rights over property or a sum of money. But here, the subject matter is the foreign
judgment itself. Section 16 of Batasang Pambansa 129 reveals that the complaint for enforcement
of judgment even if capable of pecuniary estimation would fall under the jurisdiction of the
Regional Trial Courts. Thus, the Complaint to enforce the US District Court judgment is one
capable of pecuniary estimations but at the same time, it is also an action based on judgment
against an estate, thus placing it beyond the ambit of Section 7(a) of Rule 141. What governs the
proper computation of the filing fees over Complaints for the enforcement of foreign judgments is
Section7(b)(3), involving “other actions not involving property.”

ORION SAVINGS BANK vs.SHIGEKANE SUZUKIG.R. No. 205487,

November 12, 2014 !"#s$

Respondent Shigekane Suzuki, a Japanese national, met with Ms. H

e l e n Soneja to inquire about a condominium unit and a parking slot at
Cit land!ioneer, Mandalu ong Cit , allegedl owned b "ung Sam #ang, a
#oreannational.

Soneja in$ormed Suzuki that %nit &o. '() *co+ered b Condom

i n i u m Certi cate o$ -itle CC-/ &o. 0101)2 and !arking Slot &o. 34 *co+ered b CC-
&o. 50012 were $or sale. Soneja likewise assured Suzuki that the titles to theunit and
the parking slot were clean.

6$ter pa ment o$ the price o$ the unit and parking slot, #ang then e7ecuteda 8eed o$
6bsolute Sale. Suzuki took possession o$ the condominium
unita n d p a r k i n g l o t , a n d c o m m e n c e d t h e r e n o + a t i o n o $ t h e i n t e
r i o r o $ t h e condominium unit.

#ang therea$ter made se+eral representations with Suzuki to deli+er

thet i t l e s t o t h e p r o p e r t i e s , w h i c h w e r e t h e n a l l e g e d l in
p o s s e s s i o n o $ 6le7ander !erez !erez, 9rion:s ;oans 9<cer/ $or s
a $ e k e e p i n g . 8 e s p i t e se+eral +erbal demands, #ang $ailed to deli+er the
documents.

Suzuki later on learned that #ang had le$t the countr , prompting Suzuki
to+ e r i $ the status o$ the properties. He learned th
a t C C - & o . 5 0 0 1 representing the title to the !arking Slot &o. 34
contained no
annotationsa l t h o u g h i t r e m a i n e d u n d e r t h e n a m e o $ C i t l a n d ! i o n e e r .
8 e s p i t e t h e cancellation o$ the mortgage to 9rion, the titles to the properties
remainedin possession o$ !erez.

Suzuki then demanded the deli+er o$ the titles. 9rion, through !ere
z,howe+er, re$used to surrender the titles, and cited the need to con
s u l t 9rion:s legal counsel as its reason.
Iss%e$
=hether or not #orean ;aw should be applied in con+e ing the
c o n j u g a l propert o$ spouses #ang>
R%&'()$
?n the present case, the #orean law should not be applied. ?t is a
uni+ersalprinciple that real or immo+able propert is e7clusi+el subject to the laws
o$ thecountr or state where it is located. -hus, all matters concerning the
title anddisposition o$ real propert are determined b what is known as the
le7 loci rei

NORMA DEL SOCORRO V. WILSEM CASE DIGEST - CIVIL

LAW
DEL SOCORRO VS. WILSEM G.R. No. 193707 December 10, 2014

FACTS:

Norma A. Del Socorro and Ernst Van Wilsem contracted marriage in Holland. They were blessed
with a son named Roderigo Norjo Van Wilsem. Unfortunately, their marriage bond ended by
virtue of a Divorce Decree issued by the appropriate Court of Holland. Thereafter, Norma and her
son came home to the Philippines. According to Norma, Ernst made a promise to provide monthly
support to their son. However, since the arrival of petitioner and her son in the Philippines, Ernst
never gave support to Roderigo.Respondent remarried again a Filipina and resides again the
Philippines particulary in Cebu where the petitioner also resides. Norma filed a complaint against
Ernst for violation of R.A. No. 9262 for the latter’s unjust refusal to support his minor child with
petitioner. The trial court dismissed the complaint since the facts charged in the information do
not constitute an offense with respect to the accused, he being an alien

ISSUES:

1. Does a foreign national have an obligation to support his minor child under the Philippine law?
2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for his
unjustified failure to support his minor child.

RULING:

1. YES. While it is true that Respondent Ernst is a citizen of Holland or the Netherlands, we agree
with the RTC that he is subject to the laws of his country, not to Philippine law, as to whether he
is obliged to give support to his child, as well as the consequences of his failure to do so. This
does not, however, mean that Ernst is not obliged to support Norma’s son altogether. In
international law, the party who wants to have a foreign law applied to a dispute or case has the
burden of proving the foreign law. In the present case, Ernst hastily concludes that being a
national of the Netherlands, he is governed by such laws on the matter of provision of and
capacity to support. While Ernst pleaded the laws of the Netherlands in advancing his position
that he is not obliged to support his son, he never proved the same. It is incumbent upon Ernst
to plead and prove that the national law of the Netherlands does not impose upon the parents
the obligation to support their child. Foreign laws do not prove themselves in our jurisdiction and
our courts are not authorized to take judicial notice of them. Like any other fact, they must be
alleged and proved. Moreover, foreign law should not be applied when its application would
work undeniable injustice to the citizens or residents of the forum. To give justice is the most
important function of law; hence, a law, or judgment or contract that is obviously unjust negates
the fundamental principles of Conflict of Laws. Applying the foregoing, even if the laws of the
Netherlands neither enforce a parent’s obligation to support his child nor penalize the non-
compliance therewith, such obligation is still duly enforceable in the Philippines because it would
be of great injustice to the child to be denied of financial support when the latter is entitled
thereto.

2. YES. The court has jurisdiction over the offense (R.A 9262) because the foreigner is living here
in the Philippines and committed the offense here

ontinental Micronesia v. Basso

GR No. 178382-83
Labor Relations: Jurisdiction
Facts:
Petitioner Continental Micronesia is a foreign corporation organized and existing
under the laws of and domiciled in the United States of America. It is licensed to
do business in the Philippines. Respondent, a US citizen residing in the
Philippines, accepted an offer to be a General Manager position by Mr. Braden,
Managing Director-Asia of Continental Airlines. On November 7, 1992, CMI took over
the Philippine operations of Continental, with respondent retaining his position
as General Manager. Thereafter, respondent received a letter from Mr. Schulz, who
was then CMI’s Vice President of Marketing and Sales, informing him that he has
agreed to work in CMI as a consultant on an “as needed basis.” Respondent wrote a
counter-proposal that was rejected by CMI.
Respondent then filed a complaint for illegal dismissal against the petitioner
corporation. Alleging the presence of foreign elements, CMI filed a Motion to
Dismiss on the ground of lack of jurisdiction over the person of CMI and the
subject matter of the controversy.

The Labor Arbiter agreed with CMI that the employment contract was executed in the
US “since the letter-offer was under the Texas letterhead and the acceptance of
Complainant was returned there.” Thus, applying the doctrine of lex loci
celebrationis, US laws apply. Also, applying lex loci contractus, the Labor
Arbiter ruled that the parties did not intend to apply Philippine laws.
The NLRC ruled that the Labor Arbiter acquired jurisdiction over the case when CMI
voluntarily submitted to his office’s jurisdiction by presenting evidence,
advancing arguments in support of the legality of its acts, and praying for
reliefs on the merits of the case.

The Court of Appeals ruled that the Labor Arbiter and the NLRC had jurisdiction
over the subject matter of the case and over the parties.

Issue:
Whether labor tribunals have jurisdiction over the case.
Held:
Yes. The Court ruled that the labor tribunals had jurisdiction over the parties
and the subject matter of the case. The employment contract of Basso was replete
with references to US laws, and that it originated from and was returned to the
US, do not automatically preclude our labor tribunals from exercising jurisdiction
to hear and try this case.

On the other hand, jurisdiction over the person of CMI was acquired through the
coercive process of service of summons. CMI never denied that it was served with
summons. CMI has, in fact, voluntarily appeared and participated in the
proceedings before the courts. Though a foreign corporation, CMI is licensed to do
business in the Philippines and has a local business address here. The purpose of
the law in requiring that foreign corporations doing business in the country be
licensed to do so, is to subject the foreign corporations to the jurisdiction of
our courts.

Where the facts establish the existence of foreign elements, the case presents a
conflicts-of-laws issue. Under the doctrine of forum non conveniens, a Philippine
court in a conflict-of-laws case may assume jurisdiction if it chooses to do so,
provided, that the following requisites are met: (1) that the Philippine Court is
one to which the parties may conveniently resort to; (2) that the Philippine Court
is in a position to make an intelligent decision as to the law and the facts; and
(3) that the Philippine Court has or is likely to have power to enforce its
decision. All these requisites are present here

Kuroda v. Jalandoni Digest

Kuroda vs. Jalandoni
G.R. L-2662, March 26, 1949
Ponente: Moran, C.J.

Facts:
1. Petitioner Sheginori Kuroda was the former Lt. General of the Japanese Army and
commanding general of the Japanese forces during the occupation (WWII) in the country.
He was tried before the Philippine Military Commission for War Crimes and other atrocities
committed against military and civilians. The military commission was establish under
Executive Order 68.

2. Petitioner assails the validity of EO 68 arguing it is unconstitutional and hence the

military commission did not have the jurisdiction to try him on the following grounds:
- that the Philippines is not a signatory to the Hague Convention (War Crimes)

3. Petitioner likewise assails that the US is not a party of interest in the case hence the 2
US prosecutors cannot practice law in the Philippines.

Issue: Whether or not EO 68 is constitutional thus the military tribunal jurisdiction is

valid

HELD:
1. EO 68 is constitutional hence the tribunal has jurisdiction to try Kuroda. EO 68 was
enacted by the President and was in accordance with Sec. 3, Art. 2 of Constitution which
renounces war as an instrument of national policy. Hence it is in accordance with generally
accepted principles of international law including the Hague Convention and Geneva
Convention, and other international jurisprudence established by the UN, including the
principle that all persons (military or civilian) guilty of plan, preparing, waging a war of
aggression and other offenses in violation of laws and customs of war. The Philippines may
not be a signatory to the 2 conventions at that time but the rules and regulations of both
are wholly based on the generally accepted principles of international law. They were
accepted even by the 2 belligerent nations (US and Japan)

2. As to the participation of the 2 US prosecutors in the case, the US is a party of interest

because its country and people have greatly aggrieved by the crimes which petitioner was
being charged of.

3. Moreover, the Phil. Military Commission is a special military tribunal and rules as to
parties and representation are not governed by the rules of court but the provision of this
special law

Asaali v. Commissioner of Customs

26 SCRA 382 – Civil Law – Preliminary Title – Territoriality of Philippine Laws

Criminal Law – Characteristics of Penal Laws – Territoriality
In 1950, customs officers intercepted 5 ships owned by Illuh Asaali et al. Said ships were
found to be from Borneo and were on their way to a port in Tawi-tawi, Sulu. On board the
ships were rattan products and cigarettes. The customs confiscated said items on the ground
that Asaali et al do not have the required import permits for the said goods.
Asaali questioned the legality of the seizure as he contended that the customs officers did
not intercept them within Philippine waters but rather, they were intercepted in the high seas.
Hence, according to Asaali, Philippine import laws have no application to the case at bar.
ISSUE: Whether or not Asaali’s contention is correct.
HELD: No. Asaali’s contention is without merit. The Revised Penal Code leaves no doubt as
to its applicability and enforceability not only within the Philippines, its interior waters and
maritime zone, but also outside of its jurisdiction against those committing offense while on a
Philippine ship. The ships intercepted were of Philippine registry.
Further, it has been an establish principle that a state has the right to protect itself and its
revenues, a right not limited to its own territory but extending to the high seas. The authority
of a nation within its own territory is absolute and exclusive. The seizure of a vessel within
the range of its cannon by a foreign force is an invasion of that territory, and is a hostile act
which it is its duty to repel. But its power to secure itself from injury may certainly be exercised
beyond the limits of its territory.
NORTH SEA CONTINENTAL SHELF
CASES (SUMMARY)
International Court of Justice Contentious Case: The North Sea Continental Shelf Cases
(Germany/Denmark; Germany/Netherlands).

Year of Decision: 1969.

Note: This post discusses only aspects of the case related to treaty and customary international
law.

Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual
requirement for the formation of customary international law: (1) State practice (the objective
element) and (2) opinio juris (the subjective element). In these cases, the Court explained the
criteria necessary to establish State practice – widespread and representative participation.
It highlighted that the practices of those States whose interests were specially affected by the
custom were especially relevant in the formation of customary law. It also held that uniform
and consistent practice was necessary to demonstrate opinio juris – opinio juris is the belief that
State 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 Court to decide the principles and rules
of international law that are applicable to the above delimitation because 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 was 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 binding on Germany. The Court was not asked
to delimit because the parties had already agreed to delimit the continental shelf as between their
countries, by agreement, after the determination of the Court 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 wanted 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.

North Sea Continental Shelf Cases (commons.wikimedia.org)

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 on the Continental Shelf of 1958, 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 the method was
not obligatory for the delimitation of the areas in the North Sea related to the present
proceedings.

Relevant Findings of the Court:

1. 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 stated that unless the parties had already agreed on a
method for delimitation or unless special circumstances exist, the equidistance method would
apply. Germany had signed, but not ratified, the Geneva Convention, while Netherlands and
Denmark were parties to the Convention. The latter two States argued that while Germany is not
a party to the Convention (not having ratified it), she was 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 said that only a ‘very definite very consistent course
of conduct on the part of a State would allow the Court to presume that the State had somehow
become bound by a treaty (by a means other than in the 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 (in other words, 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. Note: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in
1980, discusses in more detail treaty obligations of third States (those States who are not 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 to the treaty intended the provision to create obligations for third
States; and (2) third State expressly accept those obligations in writing (Article 35 of the VCLT).
The VCLT was not in force when the Court deliberated on this case. However, as seen above, the
Court’s position is 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 manner so as 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 law.

2. Nature of the customary international law obligation: Is Germany bound by the provisions of
Article 6 of the Geneva Convention in so far as they reflect 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 that it existed
independently of the Convention. Therefore, they argued, Germany is bound by the subject
matter of Article 6 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; and (2) its status after the Convention came into force.

(a) What was the customary law status of Article 6 at the time of drafting the Convention?

8. The Court held that 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, the International Law Commission, on the inclusion of Article 6 into the Convention
and (2) the fact that reservations to Article 6 was permissible under the Convention. 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)

(b) 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 so as to fulfil the criteria specified
below), or because of subsequent State practice (i.e. even if an 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 relating to international
humanitarian law in terms of the latter’s 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 (in this case, they were coastal States) (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 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

13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case), in so
far as those acts or omissions were 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
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 juris and
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.
ASYLUM CASE (SUMMARY)
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Name of the Case: Asylum Case (Colombia/Peru); Year of the decision: 1950; and Court: ICJ.

Overview:

Colombia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru. Was
Colombia entitled to make a unilateral and definitive qualification of the offence (as a political
offence) in a manner binding on Peru and was Peru was under a legal obligation to provide safe
passage for the Peruvian to leave Peru?

Facts of the Case:

Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the crime of
military rebellion” which took place on October 3, 1949, in Peru. 3 months after the rebellion,
Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that
Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention
on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the
Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the
same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification and
refused to grant safe passage.

Questions before the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence
for the purpose of asylum under treaty law and international law?

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?

(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter
called the Havana Convention) when it granted asylum and is the continued maintenance of
asylum a violation of the treaty?
The Court’s Decision:

Relevant Findings of the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence
for the purpose of asylum under treaty law and international law?

1. The court stated that in the normal course of granting diplomatic asylum a diplomatic
representative has the competence to make a provisional qualification of the offence (for
example, as a political offence) and the territorial State has the right to give consent to this
qualification. In the Torre’s case, Colombia has asserted, as the State granting asylum, that it is
competent to qualify the nature of the offence in a unilateral and definitive manner that is binding
on Peru. The court had to decide if such a decision was binding on Peru either because of treaty
law (in particular the Havana Convention of 1928 and the Montevideo Convention of 1933), other
principles of international law or by way of regional or local custom.

2. The court held that there was no expressed or implied right of unilateral and definitive
qualification of the State that grants asylum under the Havana Convention or relevant principles
of international law (p. 12, 13). The Montevideo Convention of 1933, which accepts the right of
unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was
not ratified by Peru. The Convention, per say, was not binding on Peru and considering the low
numbers of ratifications the provisions of the latter Convention cannot be said to reflect
customary international law (p. 15).

3. Colombia also argued that regional or local customs support the qualification. The court held
that the burden of proof on the existence of an alleged customary law rests with the party making
the allegation:

“The Party which relies on a custom of this kind must prove that this custom is established in
such a manner that it has become binding on the other Party… (that) it is in accordance with a
(1) constant and uniform usage (2) practiced by the States in question, and that this usage is (3)
the expression of a right appertaining to the State granting asylum (Colombia) and (4) a duty
incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute
of the Court, which refers to international custom “as evidence of a general practice accepted as
law(text in brackets added).”

4. The court held that Colombia did not establish the existence of a regional custom because it
failed to prove consistent and uniform usage of the alleged custom by relevant States. The
fluctuations and contradictions in State practice did not allow for the uniform usage (see also
Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of State
practice). The court also reiterated that the fact that a particular State practice was followed
because of political expediency and not because of a belief that the said practice is binding on
the State by way of a legal obligation (opinio juris) is detrimental to the formation of a customary
law (see North Sea Continental Shelf Cases and Lotus Case for more on opinio juris):

“[T]he Colombian Government has referred to a large number of particular cases in which
diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule
of unilateral and definitive qualification was invoked or … that it was, apart from conventional
stipulations, exercised by the States granting asylum as a right appertaining to them and
respected by the territorial States as a duty incumbent on them and not merely for reasons of
political expediency. The facts brought to the knowledge of the Court disclose so much
uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic
asylum and in the official views expressed on various occasions, there has been so much
inconsistency in the rapid succession of conventions on asylum, ratified by some States and
rejected by others, and the practice has been so much influenced by considerations of political
expediency in the various cases, that it is not possible to discern in all this any constant and
uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and
definitive qualification of the offence.”

5. The court held that even if Colombia could prove that such a regional custom existed, it would
not be binding on Peru, because Peru “far from having by its attitude adhered to it, has, on the
contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and
1939, which were the first to include a rule concerning the qualification of the offence [as
“political” in nature] in matters of diplomatic asylum.” (See in this regard, the lesson on persistent
objectors. Similarly in the North Sea Continental Shelf Cases the court held ‘in any event the . . .
rule would appear to be inapplicable as against Norway in as much as she had always opposed
any attempt to apply it to the Norwegian coast’.)

6. The court concluded that Colombia, as the State granting asylum, is not competent to qualify
the offence by a unilateral and definitive decision, binding on Peru.

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?

7. The court held that there was no legal obligation on Peru to grant safe passage either because
of the Havana Convention or customary law. In the case of the Havana Convention, a plain reading
of Article 2 results in an obligation on the territorial state (Peru) to grant safe passage only after
it requests the asylum granting State (Colombia) to send the person granted asylum outside its
national territory (Peru). In this case the Peruvian government had not asked that Torre leave
Peru. On the contrary, it contested the legality of asylum granted to him and refused to grant safe
conduct.

8. The court looked at the possibility of a customary law emerging from State practice where
diplomatic agents have requested and been granted safe passage for asylum seekers, before the
territorial State could request for his departure. Once more, the court held that these practices
were a result of a need for expediency and other practice considerations over an existence of a
belief that the act amounts to a legal obligation (see paragraph 4 above).

“There exists undoubtedly a practice whereby the diplomatic representative who grants asylum
immediately requests a safe conduct without awaiting a request from the territorial state for the
departure of the refugee…but this practice does not and cannot mean that the State, to whom
such a request for safe-conduct has been addressed, is legally bound to accede to it.”

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and
is the continued maintenance of asylum a violation of the treaty?

9. Article 1 of the Havana Convention states that “It is not permissible for States to grant asylum…
to persons accused or condemned for common crimes… (such persons) shall be surrendered
upon request of the local government.”

10. In other words, the person-seeking asylum must not be accused of a common crime (for
example, murder would constitute a common crime, while a political offence would not).The
accusations that are relevant are those made before the granting of asylum. Torre’s accusation
related to a military rebellion, which the court concluded was not a common crime and as such
the granting of asylum complied with Article 1 of the Convention.

11. Article 2 (2) of the Havana Convention states that “Asylum granted to political offenders in
legations, warships, military camps or military aircraft, shall be respected to the extent in which
allowed, as a right or through humanitarian toleration, by the usages, the conventions or the
laws of the country in which granted and in accordance with the following provisions: First:
Asylum may not be granted except in urgent cases and for the period of time strictly
indispensable for the person who has sought asylum to ensure in some other way his safety.”

12. An essential pre-requisite for the granting of asylum is the urgency or, in other words, the
presence of “an imminent or persistence of a danger for the person of the refugee”. The court
held that the facts of the case, including the 3 months that passed between the rebellion and the
time when asylum was sought, did not establish the urgency criteria in this case (pp. 20 -23).
The court held:

“In principle, it is inconceivable that the Havana Convention could have intended the term “urgent
cases” to include the danger of regular prosecution to which the citizens of any country lay
themselves open by attacking the institutions of that country… In principle, asylum cannot be
opposed to the operation of justice.”
13. In other words, Torre was accused of a crime but he could not be tried in a court because
Colombia granted him asylum. The court held that “protection from the operation of regular legal
proceedings” was not justified under diplomatic asylum.

14. The court held:

“In the case of diplomatic asylum the refugee is within the territory of the State. A decision to
grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws
the offender from the jurisdiction of the territorial State and constitutes an intervention in matters
which are exclusively within the competence of that State. Such a derogation from territorial
sovereignty cannot be recognised unless its legal basis is established in each particular case.”

15. As a result, exceptions to this rule are strictly regulated under international law.

An exception to this rule (asylum should not be granted to those facing regular prosecutions) can
occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such would
be the case if the administration of justice were corrupted by measures clearly prompted by
political aims. Asylum protects the political offender against any measures of a manifestly extra-
legal character which a Government might take or attempt to take against its political
opponents… On the other hand, the safety which arises out of asylum cannot be construed as a
protection against the regular application of the laws and against the jurisdiction of legally
constituted tribunals. Protection thus understood would authorize the diplomatic agent to
obstruct the application of the laws of the country whereas it is his duty to respect them… Such
a conception, moreover, would come into conflict with one of the most firmly established
traditions of Latin-America, namely, non-intervention [for example, by Colombia into the internal
affairs of another State like Peru]….

16. Asylum may be granted on “humanitarian grounds to protect political prisoners against the
violent and disorderly action of irresponsible sections of the population.” (for example during a
mob attack where the territorial State is unable to protect the offender). Torre was not in such a
situation at the time when he sought refuge in the Colombian Embassy at Lima.

17. The court concluded that the grant of asylum and reasons for its prolongation were not in
conformity with Article 2(2) of the Havana Convention (p. 25).

“The grant of asylum is not an instantaneous act which terminates with the admission, at a
given moment of a refugee to an embassy or a legation. Any grant of asylum results in, and in
consequence, logically implies, a state of protection, the asylum is granted as long as the
continued presence of the refugee in the embassy prolongs this protection.”
NB: The court also discussed the difference between extradition and granting of asylum – you
can read more on this in pp. 12 – 13 of the judgment. The discussions on the admissibility of the
counter claim of Peru are set out in pp. 18 – 19.

Additional reading (on diplomatic asylum/ also called extra territorial asylum):

 Extraterritorial asylum under international law, pp. 115 – 129.

 F. Morgenstern, ‘‘Extra-Territorial’ Asylum’, 25 BYIL (1948)
 F. Morgenstern, ‘Diplomatic Asylum’, 67 The Law Quarterly Review (1951)

Brief Fact Summary. The argument of the fishermen whose vessels was seized by the
U.S (P) officials was that international law exempted coastal fishermen from capture as
prizes of war.

Synopsis of Rule of Law. The argument of the fishermen whose vessels was seized by
the U.S (P) officials was that international law exempted coastal fishermen from capture
as prizes of war.

Facts. This appeal of a district court decree, which condemned two fishing vessels and
their cargoes as prizes of war, was brought by the owners (D) of two separate fishing
vessels. Each of the vessel running in and out of Havana and sailing under the Spanish
flag was a fishing smack which regularly engaged in fishing on the coast of Cuba. Inside
the vessels were fresh fish which the crew had caught.
The owners of the vessels were not aware of the existence of a war until they were
stopped by U.S. (P) squadron. No incriminating material like arms were found on the
fishermen and they did not make any attempt to run the blockade after learning of its
existence not did they resist their arrest. When the owners (D) appealed, they argued that
both customary international law and writings of leading international scholars recognized
an exemption from seizure at wartime of coastal fishing vessels.

Issue. Are coastal fishing vessels with their cargoes and crews excluded from prizes of
war?

Held. (Gray, J.). Yes. Coastal fishing vessels with their cargoes and crews are excluded
from prizes of war. The doctrine that exempts coastal fishermen with their vessels and
crews from capture as prizes of war has been known by the U.S. (P) from the time of the
War of Independence and has been recognized explicitly by the French and British
governments. It is an established rule of international law that coastal fishing vessels with
their equipment and supplies, cargoes and crews, unarmed and honestly pursuing their
peaceful calling of catching and bringing in fish are exempt from capture as prizes of war.
Reversed.

Discussion. Chief Justice Fuller who had a dissenting opinion which was not published
in this casebook argued that the captured vessels were of such a size and range as to
not fall within the exemption. He further argued that the exemption in any case had not
become a customary rule of international law, but was only an act of grace that had not
been authorized by the President.