POE-LLAMANZARES vs COMELEC Case Digest (G.R. Nos. 221697 & 221698-700)
POE-LLAMANZARES vs COMELEC
G.R. Nos. 221697
& 221698-700
April 4, 1988
Petitioner applied for and was issued Philippine Passport
No. F9272876 by the Department of Foreign Affairs
1988-1991
Initially, the petitioner enrolled and pursued a degree in
Development Studies at the University of the Philippines
but opted to continue her studies abroad and left for the
U.S. in 1988.
THE PETITION:
The petition is composed of two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of
Court with extremely urgent application for an ex parte issuance of temporary restraining order/status quo
ante order and/or writ of preliminary injunction assailing the following:
1.
DECEMBER 1, 2015 RESOLUTION OF THE COMMISSION ON ELECTIONS SECOND DIVISION (Cancelled
petitioner’s certificate of candidacy);
2.
DECEMBER 23, 2015 RESOLUTION OF THE COMELEC EN BANC
(Denied petitioner’s motion for reconsideration); and
3.
DECEMBER 11, 2015 RESOLUTION OF THE COMELEC FIRST DIVISION
(Declared that petitioner is not a natural-born citizen, that she failed to complete the ten (10) year residency
requirement, and that she committed material misrepresentation in her COC when she declared therein
that she has been a resident of the Philippines for a period of ten 10 years and 11 months as of the day of
the elections on 9 May 2016)
Petitioner graduated in 1991 from Boston College in
Chestnuts Hill
July 27, 1991
Petitioner married Teodoro Misael Daniel V. Llamanzares,
a citizen of both the Philippines and the U.S., at
Sanctuario de San Jose Parish in San Juan City.
July 29, 1991
Desirous of being with her husband who was then based
in the U.S., the couple flew back to the U.S.
April16, 1992
Petitioner gave birth to her eldest child Brian Daniel
April 5, 1993
Renewed her Philippines passport.
May 19, 1998
Renewed her Philippines passport.
July 10, 1998
FACTS OF THE CASE:
October 18, 2001
September 3, 1968
Mary Grace Natividad S. Poe-Llamanzares (petitioner)
was found abandoned as a newborn infant in the Parish
Church of Jaro, Iloilo by a certain Edgardo Militar.
Custody over petitioner was passed on by Edgardo to his
relatives, Emiliano Militar and his wife.
September 6, 1968
Emiliano Militar reported and registered petitioner as a
foundling with the Office of the Civil Registrar of Iloilo City
(OCR-Iloilo).
1973
When petitioner was five (5) years old, celebrity spouses
Ronald Allan Kelley Poe (a.k.a. Fenando Poe, Jr.) and
Jesusa Sonora Poe (Susan Roces) filed a petition for her
adoption with the Municipal Trial Court
(MTC) of San Juan City.
May 13, 1974
December 13, 1986
Petitioner became a naturalized American citizen
April 8, 2004 – July 8,
2004
Petitioner came back to the Philippines together with
Hanna to support her father's candidacy for President in
the May 2004 elections. It was during this time that she
gave birth to her youngest daughter Anika.
December 13, 2004
– February 3, 2005
Petitioner rushed back to the Philippines upon learning of
her father's deteriorating medical condition who died
shortly.
2005
Petitioner and husband began preparing for their
resettlement including notification of their children's
schools that they will be transferring to Philippine schools
May 24, 2005
Petitioner came home to the Philippines and without
delay, secured a Tax Identification Number from the
Bureau of Internal Revenue.
March 2006
The petitioner's husband officially informed the U.S. Postal
Service of the family's change and abandonment of
their address in the U.S. petitioner and her husband
acquired a 509-square meter lot in Corinthian Hills,
Quezon City where they built their family home.
July 7, 2006
Petitioner took her Oath of Allegiance to the Republic of
the Philippines pursuant to Republic Act (R.A.) No. 9225
or the Citizenship Retention and Re-acquisition Act of
2003.
The Poe spouses’ petition for adoption was granted by
the trial court and ordered that petitioner's name be
changed from "Mary Grace Natividad Contreras Militar"
to "Mary Grace Natividad Sonora Poe."
Having reached the age of 18, petitioner registered as a
voter with the local COMELEC Office in San Juan City.
Petitioner gave birth to daughter Hanna MacKenzie.
July 18, 2006
August 31, 2006
October 6, 2010
October 20, 2010
October 21, 2010
July 12, 2011
December 9, 2011
October 2, 2012
October 15, 2015
The Bureau of Immigration acted favorably on
petitioner's petitions and declared that she is deemed to
have reacquired her Philippine citizenship.
With regard to: a) being a foundling, and b) her repatriation, is the petitioner a natural-born citizen of the
Philippines? YES TO BOTH.
2.
Did the petitioner meet the 10-year residency requirement for running as president? YES.
Did the petitioner commit material misrepresentation in her Certificate of Candidacy? NO.
Again,
petitioner
registered
as
a
voter
of Barangay Santa Lucia, San Juan City. She also
secured from the DFA a new Philippine Passport bearing
the No. XX4731999.
President Benigno S. Aquino III appointed petitioner as
Chairperson of the Movie and Television Review and
Classification Board (MTRCB).
Before assuming her post, petitioner executed an
"Affidavit of Renunciation of Allegiance to the United
States of America and Renunciation of American
Citizenship" before a notary public in Pasig City.
Petitioner submitted the said affidavit to the Bureau of
Immigration and took her oath of office as Chairperson
of the MTRCB. From then on, petitioner stopped using her
American passport.
The petitioner executed before the Vice Consul of the
U.S. Embassy in Manila an "Oath/Affirmation of
Renunciation of Nationality of the United States" and
stated that she in the Philippines, from 3 September 1968
to 29 July 1991 and from May 2005 to present.
The U.S. Vice Consul issued to petitioner a "Certificate of
Loss of Nationality of the United States" effective 21
October 2010.
The petitioner filed with the COMELEC her Certificate of
Candidacy (COC) for Senator for the 2013 Elections
wherein she answered "6 years and 6 months" to the
question "Period of residence in the Philippines before
May 13, 2013."
Petitioner filed her COC for the Presidency for the May
2016 Elections.
In her COC, the petitioner declared that she is a naturalborn citizen and that her residence in the Philippines up
to the day before 9 May 2016 would be ten (10) years
and eleven (11) months counted from 24 May 2005.
Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several COMELEC
cases against her which were the subject of these consolidated cases.
ISSUES:
1.
RATIONALE:
1.
Is petitioner a natural-born citizen of the Philippines?
ON BEING A FOUNDLING:
As a matter of law, foundlings are as a class, natural-born citizens.
The Family Code of the Philippines has a whole chapter on Paternity and Filiation. That said, there is more
than sufficient evidence that petitioner has Filipino parents and is therefore a natural-born Filipino.
The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether such
parents are Filipinos. Under Section 4, Rule 128:
Sec. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to induce
belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it
tends in any reasonable degree to establish the probability of improbability of the fact in issue.
Parenthetically, the burden of proof was on private respondents to show that petitioner is not a Filipino
citizen. The private respondents should have shown that both of petitioner's parents were aliens. Her
admission that she is a foundling did not shift the burden to her because such status did not exclude the
possibility that her parents were Filipinos, especially as in this case where there is a high probability, if not
certainty, that her parents are Filipinos.
The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA) that from 1965 to
1975, the total number of foreigners born in the Philippines was 15,986 while the total number of Filipinos born
in the country was 10,558,278. The statistical probability that any child born in the Philippines in that decade
is natural-born Filipino was 99.83%.
Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not provide
that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in the first place
to be adopted.
Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was abandoned
as an infant in a Roman Catholic Church in Iloilo City. She also has typical Filipino features: height, flat nasal
bridge, straight black hair, almond-shaped eyes and an oval face.
Foundlings are likewise citizens under international law.
The Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the
generally accepted principles of international law and binding on the State.
Universal Declaration of Human Rights Article 15:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the
right to change his nationality.
In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights (ICCPR). Article
24 thereof provide for the right of every child "to acquire a nationality:"
To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a
theoretical chance that one among the thousands of these foundlings might be the child of not just one,
but two, foreigners is downright discriminatory, irrational, and unjust. It just doesn't make any sense. Given
the statistical certainty - 99.9% - that any child born in the Philippines would be a natural born citizen, a
decision denying foundlings such status is effectively a denial of their birthright. There is no reason to sacrifice
the fundamental political rights of an entire class of human beings.
Company showing sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire submitted to
the U.S. Embassy where petitioner indicated that she had been a Philippine resident since May 2005; affidavit
from Jesusa Sonora Poe (attesting to the return of petitioner on 24 May 2005 and that she and her family
stayed with affiant until the condominium was purchased); and Affidavit from petitioner's husband
(confirming that the spouses jointly decided to relocate to the Philippines in
2005 and that he stayed behind in the U.S. only to finish some work and to
sell the family home).
The evidence of petitioner is overwhelming and coupled with her eventual application to reacquire
Philippine citizenship and her family's actual continuous stay taken together, lead to no other conclusion
that when she came here on May 24 2005, her intention was to permanently abandon the United States.
Petitioner also actually re-established her residence here on 24 May 2005.
While the 1935 Constitution's enumeration is silent as to foundlings, there is no restrictive language which
would definitely exclude foundlings either.
ON PETITIONER’S REPATRIATION
The COMELEC ruled that petitioner's repatriation in July 2006 under the provisions of R.A. No. 9225 did not
result in the reacquisition of natural-born citizenship. The COMELEC reasoned that since the applicant must
perform an act, what is reacquired is not "natural-born" citizenship but only plain "Philippine citizenship."
According to the Supreme Court, the COMELEC's ruling disregarded consistent jurisprudence on the matter
of repatriation.
In the seminal case of Bengson Ill v. HRET, repatriation was explained as follows:
…Repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost
his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was
originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status
as a natural-bom Filipino.
ON MATERIAL MISREPRESENTATION
The COMELEC ruled that petitioner's claim of residence of ten (10) years and eleven (11) months by 9 May
2016 in her 2015 COC was false because she put six ( 6) years and six (6) months as "period of residence
before May 13, 2013" in her 2012 COC for Senator. Thus, according to the COMELEC, she started being a
Philippine resident only in November 2006. In doing so, the COMELEC automatically assumed as true the
statement in the 2012 COC and the 2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013 COC
as the period of residence as of the day she submitted that COC in 2012.
Her explanation that she misunderstood the query in 2012 (period of residence before 13 May 2013) as
inquiring about residence as of the time she submitted the COC, is strengthened by the change which the
COMELEC itself introduced in the 2015 COC which is now "period of residence in the Philippines up to the
day before May 09, 2016." The COMELEC would not have revised the query if it did not acknowledge that
the first version was vague.
Thus, it was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and conclusive
admission against petitioner.
Also, COMELEC's position that natural-born status must be continuous was already rejected
in Bengson vs. HRET where the phrase "from birth" was clarified to mean at the time of birth: "A person who
at the time of his birth, is a citizen of a particular country, is a natural-born citizen thereof."
CONCLUSION:
2.
Did the petitioner meet the 10-year residency requirement for running as president?
ON RESIDENCE
The Constitution requires presidential candidates to have 10 years residence in the Philippines before the
day of the elections.
Petitioner presented voluminous evidence showing that she and her family abandoned their U.S. domicile
and relocated to the Philippines for good. These evidence include petitioner's former U.S. passport showing
her arrival on 24 May 2005 and her return to the Philippines every time she travelled abroad; e-mail
correspondences starting in March 2005 to September 2006 with a freight company to arrange for the
shipment of their household items weighing about 28,000 pounds to the Philippines; e-mail with the Philippine
Bureau of Animal Industry inquiring how to ship their dog to the Philippines; school records of her children
showing enrollment in Philippine schools starting June 2005 and for succeeding years; tax identification card
for petitioner issued on July 2005; titles for condominium and parking slot issued in February 2006 and their
corresponding tax declarations issued in April 2006; receipts dated 23 February 2005 from the Salvation Army
in the U.S. acknowledging donation of items from petitioner's family; March 2006 e-mail to the U.S. Postal
Service confirming request for change of address; final statement from the First American Title Insurance
The procedure and the conclusions from which the questioned Resolutions emanated are tainted with grave
abuse of discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED CANDIDATE for President
in the 9 May 2016 National Elections.
CASE DIGEST : PHARMACEUTICAL Vs Duque
G.R. No. 173034
October 9, 2007 PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE
PHILIPPINES, petitioner, vs. HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR.
ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO;
and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. GAKO,
respondents.
FACTS : Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the
Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a corespondent since respondents issued the questioned RIRR in their capacity as officials of said executive
agency.1Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986
by virtue of the legislative powers granted to the president under the Freedom Constitution. One of the
preambular clauses of 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.In 1990, 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. On May 15,
2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.
Issue: . Whether Administrative Order or the Revised Implementing Rules and Regulations (RIRR) issued by
the Department of Health (DOH) is not constitutional;
Held: YES
under Article 23, recommendations of the WHA do not come into force for members,in the same way that
conventions or agreements under Article 19 and regulations under Article 21 come into force. Article 23 of
the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to Members with respect to
any matter within the competence of the Organization
for an international rule to be considered as customary law, it must be established that such rule is being
followed by states because they consider it obligatory to comply with such rules
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. The
incorporation method applies when, by mere constitutional declaration, international law is deemed to
have the force of domestic law.
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law.
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
Pharmaceutical and Health Care Association of the Philippines vs. Duque III
(Austria-Martinez, October 9, 2007)
-
Nature: Special Civil Action in the Supreme Court. Certiorari
Petitioner: Pharmaceutical and Healthcare Association of the Philippines
Respondents: DOH Sec. Francisco Duque III, DOH Undersecretaries Dr. Ethelyn Nieto, Dr. Margarita Galon,
Atty. Alexander Padilla and Dr. Jade Del Mundo; and Asst. Secretaries Dr. Mario Villaverde, Dr. David Lozada
and Dr. Nemesio Gako
Facts:
Executive Order No. 51 (The Milk Code - TMC) was issued by Pres. Aquino on Oct. 28, 1986 by virtue of
the legislative powers granted to her under the Freedom Constitution.
(1) One of the preambular clauses of TMC – the law seeks to give effect to Article 11 of the
International Code of Marketing of Breastmilk Substituttes (ICMBS), a code adopted by the WHA
(World Health Assembly) in 1981.
In 1990, the Philippine ratified the International Convention on the Rights of the Child. Art. 24 of the
instrument mandates that States should take measure to diminish infant mortality and should ensure
that all segments of society are informed of the advantages of breastfeeding.
From 1982 – 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.
May 15, 2006 – DOH issues the assailed RIRR (Revised Implementing Rules and Regulations of E.O. 51
or A.O. No. 2006-0012) which was to take effect on July 7, 2006. – The RIRR imposes a ban on all
advertisements of breastmilk substitutes
June 28, 2006 – Petitioner filed the present Petition for Certiorari and Prohibition with Prayer for the
Issuance of a TRO or Writ of Preliminary injunction.
August 15, 2006 – the Court issued a Resolution granting the TRO, enjoining the respondents from
implementing the assailed RIRR.
Petitioner assails the RIRR for going beyond the provisions of TMC thereby amending and expanding
the coverage of the said law.
DOH meanwhile contends that the RIRR implements not only TMC but also various international
instruments regarding infant and young child nutrition. They posit that the said international instruments
are deemed part of the law of the land and therefore may be implemented by the DOH in the RIRR.
Issue: W/n the RIRR is unconstitutional?
Sub-issue(s): W/n the RIRR is in accord with TMC? W/n pertinent international agreements entered into by
the Philippines are part of the law of the land and may thus be implemented through an RIRR, if so, is the
RIRR in accord with such international agreements?
Note: I focused on the parts on international law. The other matters (in case ma’am asks) are at the bottom
of the digest.
Held: No. However what may be implemented is the RIRR based on the Milk Code which in turn is based on
the ICMBS as this is deemed part of the law of the land. The other WHA Resolutions however cannot be
imposed as they are not deemed part of the law of the land.
Ratio:
1. Are the international instruments referred to by the respondents part of the law of the land?
The various international instruments invoked by respondents are:
(1) The UN Conventions on the Rights of the Child
(2) The International Convenant on Economic, Social, and Cultural Rights
(3) Convention on the Elimination of All Forms of Discrimination Against Women
These instruments only provide general terms of the steps that States must take to prevent child
mortality. Hence, they do not have anything about the use and marketing of breastmilk substitutes
2.
-
-
-
The ICMBS and other WHA Resolutions however, are the international instruments which have specific
provisions on breastmilk substitutes
Under the 1987 Constitution, international law can become part of domestic law in 2 ways:
(1) Transformation – an international law is transformed into a domestic law through a constitutional
mechanism such as local legislation

Treaties become part of law of the land through this method, pursuant to Art 7, Sec 21 –
wherein “no treaty or international agreement shall be valid.. unless concurred by at least
2/3 of Senate”

The ICMBS and WHA Resolutions are NOT treaties as they haven’t been concurred in by the
required 2/3 vote.

HOWEVER, the ICMBS has been transformed into domestic law through local legislation that
is TMC.

Therefore, it is not the ICMBS per se that has the force of law but it’s TMC.
o
While TMC is almost a verbatim reproduction of the ICMBS, it did not adopt the
latter’s provision on the absolute prohibition on advertising of products within the
scope of the ICMBS. Instead the MC provides that advertising promotion or other
marketing materials may be allowed if such materials are approved by a
committee.
(2) Incorporation – by mere constitutional declaration, international law is deemed to have the force
of domestic law

This is found under Art 2, Sec 2 – The Philippines… adopts generally accepted principles of
international law as part of the law of the land

In Mihares v. Ranada: International law becomes customary rules accepted as binding as a
result of two elements:
1.) Established, widespread, and consistent practice on part of the state
2.) Opinion juris sive necessitates (opinion as to law or necessity.

Generally accepted principles of international law refer to norms of general or customary
international law which are binding on all states, valid through all kinds of human societies,
and basic to legal systems generally

Fr. Bernas has a definition similar to the one above. Customary international law has two
factors:
1.) Material factor – how states behave

The consistency and the generality of the practice
2.) Psychological or subjective factor – why they behave the way they do

Once state practice has been established, now determine why they behave they
do. Is it ouor of courtesy or opinio juris (the belief that a certain type of behavior is
obligatory)

When a law satisfies the two factors it becomes part of customary international law which is
then incorporated into our domestic system
Since the WHA Resolutions have not been embodied in any local legislation, have they attained the
status of customary law and hence part of our law of the land?
The World Health Organization (WHO) is one of the international specialized agencies of the UN.
According to the WHO Constitution, it’s the WHA which determines the policies of the WHO, the former
also has the power to “adopt regulations concerning advertising and labeling of pharmaceutical and
similar products” and “to make recommendations to members on any matter within the
Organization’s competence”
Note that the legal effect of a regulation as opposed to recommendation is quite different
(1) Regulations which are duly adopted by the WHA are binding on member states
(2) On the other hand, recommendations of the WHA do not come into force for its members unlike
regulations. Rather, they carry moral and political weight as they constitute the judgment on a
health issue of the collective membership of the highest body in the field of health.
The WHA resolution adopting the ICMBS and the subsequent WHA resolutions urging states to
implement the ICMBS are merely recommendatory and legally non-binding.
-
-
Hence, unlike the ICMBS which has become TMC through legislative enactment, the subsequent WHA
Resolutions, which provide for exclusive breastfeeding and prohibition on advertisements and
promotions of breastmilk have not been adopted as domestic law.
WHA Resolutions have been viewed to constitute “soft law” or non-binding norms, which influence
state behavior. Soft law has been noted to be a rapid means of norm creation, in order to reflect and
respond to the changing needs and demands of constituents (of the UN.)
As previously discussed, for an international rule to be considered customary law, it must be
established that such rule is followed by states because it is considered obligatory (opinio juris).
In the case at bar, respondents have not presented any evidence to prove that the WHA Resolutions
are in fact enforced or practice by member states. Further, they failed to establish that provisions of
pertinent WHA Resolutions are customary international law that may be deemed part of law of the
land.
Hence, legislation is necessary to transform the WHA resolutions into domestic law. They cannot thus
be implemented by executive agencies without the need of a law to be enacted by legislature.
On other issues:
W/n the petitioner is the real party in interest? Yes.
An association has standing to file suit for its workers despite its lack of direct interest of its members
are affected by the action. An organization has standing to assert the concerns of its constituents.
(Exec Sec vs CA)
- The Court has rules that an association has the legal personality to represent its members because the
results of the case will affect their vital interests. (Purok Bagong Silang Association Inc. vs. Yuipco)
- In the petitioner’s Amended Articles of Incorporation, it states that the association is formed “to
represent directly or through approved representatives the pharmaceutical and health care industry
before the Philippine Government and any of its agencies, the medical professions and the general
public.”
- Therefore, the petitioner, as an organization, has an interest in fulfilling its avowed purpose of
representing members who are part of the pharmaceutical and health care industry. Petitioner is duly
authorized to bring to the attention of the government agencies and courts any grievance suffered
by its members which are directly affected by the assailed RIRR.
- The petitioner, whose legal identity is deemed fused with its members, should be considered as a legal
party-in-interest which stands to be benefited or injured by any judgment in the case.
W/n the DOH has the power to implement the WHA Resolutions under the Revised Administrative Code
even in the absence of a domestic law? Only the provisions of the Milk Code. (as per the discussion above)
Section 3, Chapter 1, Title IX of the RAC of 1987 provides that the DOH shall define the national health
policy and can issue orders and regulations concerning the implementation of established health
policies.
A.O. No 2005 -0014 which provides the national policy on infant and young child feeding, does not
declare that as part of its policy, the advertisement or promotion of breastmilk substitutes should be
absolutely prohibited.
Only the provisions of the Milk Code, but not those of the subsequent WHA Resolutions, can be validly
implemented by the DOH through the subject RIRR.
W/n the provisions of the RIRR being in accordance with the Milk Code? Not all of them
Assailed provisions: [1] extending the coverage to young children; [2] imposing exclusive
breastfeeding for infants from 0-6 months; [3] imposes an absolute ban on advertising and promotion
for breastmilk substitutes; [4] requiring additional labeling requirements; [5] prohibits the dissemination
of information on infant formula; [6] forbids milk manufacturers and distributors to extend assistance in
research and continuing education Although the DOH has the power under the Milk Code to control
information regarding breastmilk vis-à-vis breastmilk substitutes, this power is not absolute because it
has no power to impose an absolute prohibition in the marketing, promotion and advertising of
breastmilk substitutes. Several provisions of the Milk Code attest to the fact that such power to control
information is not absolute.
-
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code because such provisions impose
an absolute prohibition on advertising, promotion and marketing of breastmilk substitutes, which is not
provided for in the Milk Code. Section 46 is violative of the Milk Code because the DOH has exceeded
its authority in imposing such fines or sanctions when the Milk Code does not do so. Other assailed
provisions are in accordance with the Milk Code.
W/n Section 13 of the RIRR providing a sufficient standard? Yes.
Questioned provision, in addition to Section 26 of Rule VII provide labeling requirements for breastmilk
substitutes  found to be in consonance with the Milk Code
The provisions in question provide reasonable means of enforcing related provisions in the Milk Code.
W/n Section 57 of the RIRR repeals existing laws?
Section in question only repeals orders, issuances and rules and regulations, not laws. The provision is
valid as it is within the DOH’s rule-making power.
An administrative agency has quasi-legislative or rule-making power. However, such power is limited
to making rules and regulation subjected to the boundaries set by the granting statute and the
Constitution. The power is also subject to the doctrine of non-delegability and separability of powers.
The power, which includes amending, revising, altering or repealing, is granted to allow for flexibility in
the implementation of the laws.
W/n On Section 4, 5(w), 11, 22, 32, 47 and 52 violates the due process clause of the Constitution (Article III
Section 1)?
Despite the fact that the present Constitution enshrines free enterprise as a policy, it nonetheless
reserves to the government the power to intervene whenever necessary to promote the general
welfare… free enterprise does not call for the removal of protective regulations. It must be clearly
explained and proven by competent evidence just exactly how such protective regulation would
result in the restraint of trade.
Section 4 – proscription of milk manufacturers’ participation in any policymaking body; Section 22 –
classes and seminars for women and children; Section 32 – giving of assistance, support and logistics
or training; Section 52 – giving of donations
In the instant case, petitioner failed to show how the aforementioned sections hamper the trade of
breastmilk substitutes. They also failed to establish that these activities are essential and indispensable
to their trade.
Disposition: The Petition is Partially Granted. Only sections 4(f), 11 and 46 of A.O. 2006-0014 are declared null
and void for being ultra vires. The TRO is lifted insofar as the rest of the provisions of A.O. 2006-0012 is
concerned.
The Paquete Habana
Citation. The Paquete Habana, 175 U.S. 677, 20 S. Ct. 290, 44 L. Ed. 320, 1900 U.S. LEXIS 1714 (U.S. Jan. 8, 1900)
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.
ASYLUM CASE (SUMMARY)
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2008 – present. Unauthorized use and/or duplication of this material without express and written permission
from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full
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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 safeconduct 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 LatinAmerica, 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.
NICARAGUA VS THE UNITED STATES: USE OF FORCE AND SELF-DEFENSE (1 OF 3)
International Court of Justice Contentious Case: Case Concerning the Military and Paramilitary Activities In
and Against Nicaragua (Nicaragua vs United States)
Year of Decision: 1986.
Note: This post will discuss the International Court of Justice’s (ICJ) discussions on the use of force and selfdefence. If you would like to read about the ICJ’s discussions on jurisdictional issues relating to the multilateral
treaty reservation of the United States and the ICJ’s reliance on customary law, please click here.
For a diagram on some of the points discussed here, click here. It is recommended to use the diagram
alongside this blog post.
Overview:
The case involved military and paramilitary activities carried out 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 was replaced by a government installed
by Frente Sandinista de Liberacion Nacional (FSLN). Supporters of the former Somoza Government
and former members of the National Guard opposed the new government. 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 the United
States stopped its aid to Nicaragua and in September 1981, according to Nicaragua, the United
States “decided to plan and undertake activities directed against Nicaragua”.
The
armed
activities
against the
new
Government
was
carried
out 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. 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 the contras were paid for and directly
controlled by the United States. Nicaragua also alleged that some attacks against Nicaragua were carried
out, directly, by the United States military – with the aim to overthrow the Government of Nicaragua. Attacks
against Nicaragua included the mining of Nicaraguan ports, and other 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 when it
provided “upon request proportionate and appropriate assistance…” to Costa Rica, Honduras, and El
Salvador in response to Nicaragua’s acts of aggression against those countries (paras 126, 128).
F1: Map of Nicaragua, Costa Rica, Honduras and El Salvador. Source: Google Earth
Questions before the Court:
1. Did the United States violate 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
when it encouraged, supported, and aided the military and paramilitary activities against
Nicaragua?
2. Did the United States violate its customary international law obligation not to use force against
another State, when it directly attacked Nicaragua in 1983 and 1984 and when its activities in
point (1) above resulted in the use of force?
3.
Can the military and paramilitary activities that the United States undertook in and against
Nicaragua be justified as collective self-defence?
4. 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 the territory of
Nicaragua and because of acts referred to in (2) above?
5. 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 in
the territorial sea of Nicaragua?
The Court’s Decision:
The United States violated customary international law in relation to (1), (2), (4) and (5) above. On (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 violated its customary international law obligation not to use force
against another State when its activities with the contras resulted in the threat or use of force (see paras
191-201).
The Court held that:
 The prohibition on the use of force is found both in Article 2(4) of the Charter of the United Nations
(UN Charter) and in customary international law.
 In a controversial finding the Court sub-classified the use of force as:
(1) “most grave forms of the use of force” (i.e. those that constitute an armed attack); and
(2) “other less grave forms” of the use of force (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,
but not amounting to an armed attack). (Para 191),
 The United States violated the customary international law prohibition on the use of force when it
laid mines in Nicaraguan ports. It also violated this prohibition when it attacked Nicaraguan ports,
oil installations, and a naval base (see below). The United States could only justify its action on the
basis of collective self-defence, if certain criteria were met (these criteria are 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” and 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. On the
contrary, Nicaragua had previously argued before the Court that the United States determined
the timing of offensives against Nicaragua when it provided funds to the contras. 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 the arming and training of the contras and the supply of funds, in itself, only
amounted to acts of intervention in the internal affairs of Nicaragua and did not violate the
prohibition on the use of force (para 227) (again, this aspect will be discussed in detail below).
2. The Court held that the United States violated its customary international law obligation not to use force
against another State when it directly attacked Nicaragua in 1983 and 1984 (see paras 187 – 201).
Note: 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 (sic) 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”.
Note also that that he second point somewhat resembles Article 3(g) of the UNGA Resolution 3314 (XXIX)
on the Definition of Aggression.
The Court further held that:
 Mere frontier incidents will not considered as armed attacks, unless, because of its scale and
effects, it would have been classified as an armed attack had it been carried out by regular forces.
 Assistance to rebels by providing weapons or logistical support did not constitute an armed attack.
Instead, 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).
Note: In in the ICJ’s Case Concerning Oil Platforms and the ICJ’s 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 confirmed the definition of an “armed attack” as proposed in the Nicaragua
case. Draft Articles on State Responsibility, prepared by the International Law Commission, provides
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 may have widened
the scope of an armed attack, and consequently, the right of self defence, envisaged by the ICJ. (for
example, see discussion surrounding the United States’ attacks in Afghanistan and Iraq) See also a paper
by Max Plank Institute on this topic (2017).
F 2. The most serious use of force and its consequences. Full diagram is here.
3. The Court held that the United States could not justify its military and paramilitary activities on the basis of
collective self-defence.
Note that Article 51 of the UN Charter sets out the treaty based requirements on the exercise of the right of
self-defense. It states:
“Nothing in the present Charter shall impair the inherent right of individual or collectiveself-defence if an
armed attack occurs against a Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security. Measures taken by Members in the
exercise of this right of self-defence shall be immediately reported to the Security Council.”
The Court held that:
 Customary international law allows for exceptions to the prohibition on the use of force, which
includes the right to individual or collective self-defence (see here for a difference between
individual and collective self defense). The United States, at an earlier stage of the proceedings,
had also agreed that the UN Charter acknowledges the existence of this customary international
law right when it talks of the “inherent” right under Article 51 of the Charter (para.193).
 When a State claims that it used force in collective self-defence, the Court would examine the
following:
(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.
 Under international law, several requirements 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) That State must declare itself as a victim of an armed attack. The assessment on whether an armed
attack had taken place or not, is done by the State who was subjected to the attack. A third State cannot
exercise a right of collective self-defence based that third State’s own assessment;
(3) In the case of collective self-defence, the victim State must request for assistance. The Court held that
“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) A State that is attacked, 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 Court held that “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).
“…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 selfdefence (See paras 200, 232 -236)”.
 The Court, then, looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica, and
Honduras to determine if (1) an armed attack was undertaken by Nicaragua against the three
countries, which in turn would (2) necessitate those countries to act in self-defence against
Nicaragua (paras 230 – 236). The Court noted that (1) none of the countries who were allegedly
subject to an armed attack by Nicaragua declared themselves as victims of an armed attack; (2)
they did not request assistance from the United States to exercise its right of self-defence; (3) the
United States did not claim that when it used force, it was acting under Article 51 of the UN Charter;
and (4) the United States did not report that it was acting in self-defense to the Security Council.
The Court concluded that, based on the above, the United States cannot justify its use of force as
collective self-defence.
 In any event, the Court held that the criteria relating to necessity and proportionality, that
is required to be met when using force in self-defence – were also not fulfilled (para 237).
4. 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 Court held that:
 The principle of non-intervention requires that every State has a right to conduct its affairs without
outside interference. In other words, the principle “…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. The Court held that:
“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, to substantially damage the economy and to weaken the political
system with the aim to coerce the Government of Nicaragua to accept various political
demands of the United States. The Court concluded that:
“…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 violated the principle of non-interference. “…(N)o 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).
F 3. The prohibition on non intervention. For full diagram, click here.
 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). The 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.
“…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 211 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.”
F 4. The less grave forms of use of force and its consequences. Full diagram is here.
5. The United States violated 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 Court 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. It
held that a State’s sovereignty extends to its internal waters, its territorial sea, and the airspace
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..

Material on the Nicaragua case
Nicaragua vs United States: Summary Diagram for Use of Force (Full diagram in PDF)
The judgment including separate opinions of individual judges and summaries of the judgment and orders
Nicaragua v. United States
Citation. I.C.J. 1984 I.C.J. 39
Brief Fact Summary. Nicaragua (P) brought a suit against the United States (D) on the ground that the United
States (D) was responsible for illegal military and paramilitary activities in and against Nicaragua. The
jurisdiction of the International Court of Justice to entertain the case as well as the admissibility of Nicaragua’s
(P) application to the I.C.J. was challenged by the United States (D).
Synopsis of Rule of Law. Nicaragua (P) brought a suit against the United States (D) on the ground that the
United States (D) was responsible for illegal military and paramilitary activities in and against Nicaragua. The
jurisdiction of the International Court of Justice to entertain the case as well as the admissibility of Nicaragua’s
(P) application to the I.C.J. was challenged by the United States (D).
Facts. The United States (D) challenged the jurisdiction of the I.C.J when it was held responsible for illegal
military and paramilitary activities in and against Nicaragua (P) in the suit the plaintiff brought against the
defendant in 1984. Though a declaration accepting the mandatory jurisdiction of the Court was deposited
by the United States (D) in a 1946, it tried to justify the declaration in a 1984 notification by referring to the
1946 declaration and stating in part that the declaration “shall not apply to disputes with any Central
American
State….”
Apart from maintaining the g
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.