Haw Pia vs China Banking Corp

PUBLIC INTERNATIONAL LAW | CASE DIGESTS | ATTY. DE LEON-MANZANO | 2D

1.

HAW PIA v CHINA BANKING CORPORATION

FACTS Haw Pia had previously contracted a loan from China Banking Corporation in the amount of P5,103.35, which, according to Haw Pia, had been completely paid, on different occasions from 1942 to 1944 through Bank of Taiwan, Ltd., which was appointed by the Japanese Military authorities as liquidator of China Banking Corp. With this, Haw Pia instituted an action against China Banking Corp. to compel the bank to execute a deed of cancellation of mortgage on the property used as security for the loan and to deliver its title.

However, upon service of summons, China Banking Corp. demanded from Haw Pia for the payment of the sum of its indebtedness with interests, which also constituted its counter claim in its answer. RTC rendered a decision in favor of China Banking Corp. on the basis that there was no evidence to show that Bank of Taiwan was authorized by China Banking Corp. to accept Haw Pia's payment and that Bank of Taiwan, as an agency of the Japanese invading army, was not authorized under the international law to liquidate the business of China Banking Corp. As such, Haw Pia's payment to Bank of Taiwan has not extinguished his indebtedness to China Banking Corp. ISSUE Whether the Japanese Military Administration had authority to order the liquidation of the business of China Banking Corp. and to appoint Bank of Taiwan as liquidator authorized as such to accept payment HELD YES. Under international law, the Japanese Military authorities had power to order the liquidation of China Banking Corp. and to appoint and authorize Bank of Taiwan as liquidator to accept the payment in question, because such liquidation is not confiscation of the properties of China Banking Corp., but a mere sequestration of its assets which required its liquidation.

The sequestration or liquidation of enemy banks in occupied territories is authorized expressly, not only by the US Army and Naval Manual of Military Government and Civil Affairs, but also similar manuals of other countries, without violating Art. 46 or other articles of the Hague Regulations. They do not amount to an outright confiscation of private property. The purpose of such sequestration, as expounded in the Annual Report of the Office of the Alien Custodian, is that enemy-owned property can be used to further the interest of the enemy and to impede their war efforts. All enemycontrolled assets can be used to finance propaganda, espionage, and sabotage in these countries or in countries friendly to their cause. It is presumed that Japan, in sequestering and liquidating China Banking Corp., must have acted in accordance, either with her own Manual of the Army and Navy and Civil Affairs OR with her Trading with the Enemy Act, and even if not, it being permitted to the Allied Nations, specially the US and England, to sequestrate, impound, and block enemy properties found within their own

domain or in enemy territories occupied during the war by their armed forces, and it not being contrary to Hague Regulations or international law, Japan had also the right to do the same in the Philippines by virtue of the international law principle that "what is permitted to one belligerent is also allowed to the other." Taking these into consideration, it appears that Japan did not intend to confiscate or appropriate the assets of said banks or the debts due them from their debtors. The fact that the Japanese Military authorities failed to pay the enemy banks the balance of the money collected by the Bank of Taiwan from the debtors of the said banks, did not and could not change the sequestration by them of the bank's assets during the war, into an outright confiscation thereof. It was physically impossible impossible for the Japanese Military authorities to do so because they were forcibly driven out of the Philippines, following the readjustment of rights of private property on land seized by the enemy provided by the Treaty of Versailles and other peace treaties entered into at the close of WWI. The general principles underlying such arrangements are that the owners of properties seized are entitled to receive compensation for the loss or damage inflicted on their property by the emergency war measures taken by the enemy. Since Japan war notes were issued as legal tender, Japan was bound to indemnify the aggrieved banks for the loss or damage on their property, in terms of Phil. Pesos of US $. Since the Japanese Military Forces had power to sequestrate and impound the assets of China Banking Corp. and to appoint Bank of Taiwan as liquidator, it follows that payments of Haw Pia to Bank of Taiwan extinguished his obligations to China Banking Corp. 2.

THE INTERHANDEL CASE (ICJ JUDGMENT, MARCH 21, 1959)

FACTS The General Aniline and Film Company (GAF) is a corporation incorporated in the United States. Under the “Trading with the Enemy Act” the government of the United States took almost all of the shares of said company reasoning that such shares were controlled by I.G. Farben, a German and therefore enemy company. I.G. Farben controlled the shares of GAF through a Swiss company called I.G. Chemie of Basle. However by 1940, I.G. Chemie had changed its name to Interhandel and was found by Swiss authorities to no longer be controlled by any German or other enemy company. Switzerland therefore seeks the restoration of the shares of GAF that is owned by Interhandel. Such restoration is however being opposed by the United States who still maintains its stance that Interhandle is being controlled by I.G. Farben. Switzerland would like to submit the dispute to the International Court of Justice however the United States believes that the ICJ has no jurisdiction over the matter. Switzerland bases its claim that the ICJ has jurisdiction on Art. 36, Par. 2 of the statute of the Court. ISSUE Whether the ICJ has jurisdiction to decide the case between Switzerland and the United States of America. 1

NIKKI HIPOLITO | ROMIR GAVINO | 2D 2010


Philippines. HELD NO. The Swiss Application is inadmissible. The United States presented four objections to Switzerland’s Application. One of which was sustained therefore making the Swiss Application inadmissible. The objection sustained held that the Swiss Application could not be entertained because not all local remedies have been exhausted by Interhandel. The local remedy referred to is a case still pending in the US courts.

Doctrine of the case (according to the book): “’Reciprocity in the case of Declarations accepting compulsory jurisdiction of the Court enables a Party to invoke a reservation to that acceptance which it has not expressed in its own Declaration but which the other Party has expressed in its Declaration.’ Thus, if a party that has made a Declaration unconditionally is brought to the court by another that has made a Declaration with conditions, the former can invoke the conditions in the latter’s Declaration. The situation in this case was that the United States was invoking the reservation that it made when it accepted the statute of the Court on the country’s acceptance of the Court’s compulsory jurisdiction. Such reservation sought to limit the court’s jurisdiction to cases “hereinafter arising” July 28, 1948. Following the doctrine stated in the book; this means that Switzerland may therefore invoke such reservation if in their own declaration does not contain such. This is the effect of reciprocity. However, it cannot justify a State, in this instance the United States, in relying upon a restriction which the other Party, Switzerland has not included in its own Declaration. 3.

KURODA v JALANDONI

FACTS Shigenori Kuroda, was a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the Philippines. He was charged before a Military Commission with having unlawfully disregarded and failed to discharge his duties as such command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces in violation of the laws and customs of war.

He came before the Court, seeking to establish the illegality of EO 68, on the ground that it violates not only the provision of our constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not based on law, national and international." Thus, he argues that in view of the fact that the Military Commission has been empanelled by virtue of an unconstitutional law, it has no jurisdiction to try him. He also argues that the participation in the prosecution against him before the Military Commission in behalf of the USA of attorneys Hussey and Robert Poy, who are not attorneys authorized by the SC to practice law in the Philippines is a diminution of our personality as an independent state and their appointment as prosecutor are violation of our Constitution for the reason that they are not qualified to practice law in the

EO 68 established a National War Crimes Office prescribing rules and regulations governing the trial of accused war criminals. ISSUE Whether EO 68 is illegal for being violative of the Constitution HELD NO. The Court held that EO is valid and constitutional. Art. 2 of the Constitution provides in Sec. 3 that the Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the laws of the land.

In accordance with the generally accepted principles of international law of the present day, including the Hague Convention, the Geneva Convention and significant precedents of international jurisprudence established by the UN, all those person, military or civilian, who have been guilty of planning, preparing or waging war of aggression and of the commission of crimes and offenses consequential and incidental thereto in violation of the laws and customs of war, of humanity and civilization are held accountable. Consequently, the President of the Philippines, in the promulgation and enforcement of EO 68, has acted in conformity with the generally accepted and policies of international law, which are part of the Constitution. It was an exercise of the President of his power as Commander in Chief of all our armed forces, who is fully empowered to consummate the unfinished aspect of war, namely the trial and punishment of war criminal through the issuance and enforcement of EO 68. Although the Philippines was not a signatory to the Hague Convention and only signed the Geneva Convention in 1947, it cannot be denied that the rules and regulations of the Hague and Geneva conventions form part of and are wholly based on the generally accepted principles of international law. Such rules and principles form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rule and principle of international law as continued in treaties to which our government may have been or shall be a signatory. Furthermore, the crimes charged against Kuroda were committed when the Philippines was under the sovereignty of the US. Thus, the Philippines is equally bound with the US and Japan to the right and obligation contained in the treaties between the belligerent countries. As to the participation of the American lawyers in the prosecution of his case, the Military Commission is a special military tribunal governed by a special law and not by the Rules of Court, which govern ordinary civil court. There is nothing in EO 68 that requires that counsel appearing before such must be lawyers qualified to practice law in the Philippines. the appointment of the two American attorneys is not violative of our nation sovereignty. It is only fair and 2



proper that United States, which has submitted the vindication of crimes against her government and her people to a tribunal of our nation should be allowed representation in the trial of those very crimes. 4.

ICHONG v HERNANDEZ

FACTS Petitioner, for and in his own behalf and on behalf of other alien residents, corporations and partnerships adversely affected by the provisions of RA 1180, brought this action to obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance and all other persons acting under him, particularly city and municipal treasurers, from enforcing its provisions.

Petitioner attacks the constitutionality of the Act, contending among others that: it denies to alien residents the equal protection of the laws and deprives them of their liberty and property without due process of law; it violates international and treaty obligations of the Republic of the Philippines; and its provisions against the transmission by aliens of their retail business thru hereditary succession, and those requiring 100% Filipino capitalization for a corporation or entity to entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution. RA 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of the Philippines, and against associations, partnerships, or corporations the capital of which are not wholly owned by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2) an exception from the above prohibition in favor of aliens actually engaged in said business on May 15, 1954, who are allowed to continue to engage therein, unless their licenses are forfeited in accordance with the law, until their death or voluntary retirement in case of natural persons, and for ten years after the approval of the Act or until the expiration of term in case of juridical persons; (3) an exception therefrom in favor of citizens and juridical entities of the United States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for violation of the laws on nationalization, economic control weights and measures and labor and other laws relating to trade, commerce and industry; (5) a prohibition against the establishment or opening by aliens actually engaged in the retail business of additional stores or branches of retail business, (6) a provision requiring aliens actually engaged in the retail business to present for registration with the proper authorities a verified statement concerning their businesses, giving, among other matters, the nature of the business, their assets and liabilities and their offices and principal offices of juridical entities; and (7) a provision allowing the heirs of aliens now engaged in the retail business who die, to continue such business for a period of six months for purposes of liquidation. ISSUE Whether RA 1180 is unconstitutional for being violative of the equal protection and due process clauses

HELD NO. The Court held that RA 1180 was enacted in the exercise of police power. It has been said that police power is so far-reaching in scope, that it has become almost impossible to limit its sweep. As it derives its existence from the very existence of the State itself, it does not need to be expressed or defined in its scope; it is said to be co- extensive with self-protection and survival, and as such it is the most positive and active of all governmental processes, the most essential, insistent and illimitable. Especially is it so under a modern democratic framework where the demands of society and of nations have multiplied to almost unimaginable proportions; the field and scope of police power has become almost boundless, just as the fields of public interest and public welfare have become almost all- embracing and have transcended human foresight. Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this constantly changing and progressive world, so we cannot delimit beforehand the extent or scope of police power by which and through which the State seeks to attain or achieve public interest or welfare. So it is that Constitutions do not define the scope or extent of the police power of the State; what they do is to set forth the limitations thereof. The most important of these are the due process clause and the equal protection clause.

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exists for making a distinction between those who fall within such class and those who do not. The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police power, Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably necessary for the accomplishment of the legislature's purpose; is it not unreasonable, arbitrary or oppressive? Is there sufficient foundation or reason in connection with the matter involved; or has there not been a capricious use of the legislative power? Can the aims conceived be achieved by the means used, or is it not merely an unjustified interference with private interest? These are the questions that we ask when the due process test is applied. The conflict, therefore, between police power and the guarantees of due process and equal protection of the laws is more apparent than real. Properly related, the power and the guarantees are supposed to coexist. The balancing is the essence or, shall it be said, the indispensable means for the attainment of legitimate aspirations of any democratic society. There can be no absolute power, whoever exercises it, for that would be tyranny. Yet there can neither be absolute liberty, for that would mean license and anarchy. So the State can deprive persons of life, liberty and property, provided there is due process of law; and persons may be classified into classes and groups, provided everyone 3



is given the equal protection of the law. The test or standard, as always, is reason. The police power legislation must be firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes and means. And if distinction and classification has been made, there must be a reasonable basis for said distinction. The disputed law was enacted to remedy a real actual threat and danger to national economy posed by alien dominance and control of the retail business and free citizens and country from such dominance and control; that the enactment clearly falls within the scope of the police power of the State, thru which and by which it protects its own personality and insures its security and future; that the law does not violate the equal protection clause of the Constitution because sufficient grounds exist for the distinction between alien and citizen in the exercise of the occupation regulated, nor the due process of law clause, because the law is prospective in operation and recognizes the privilege of aliens already engaged in the occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry out its objectives appear to us to be plainly evident — as a matter of fact it seems not only appropriate but actually necessary — and that in any case such matter falls within the prerogative of the Legislature, with whose power and discretion the Judicial department of the Government may not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no duplicity and has not misled the legislators or the segment of the population affected; and that it cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually been entered into on the subject and the police power may not be curtailed or surrendered by any treaty or any other conventional agreement. The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is also claimed to be violated by the law in question. All that the treaty guarantees is equality of treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But the nationals of China are not discriminated against because nationals of all other countries, except those of the United States, who are granted special rights by the Constitution, are all prohibited from engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law, and the same may never curtail or restrict the scope of the police power of the State. 5.

THE PAQUETE HABANA CASE

FACTS The Paquete Habana was a sloop and the Lola was a schooner both were flying under the Spanish flag and both were owned and manned by Spanish subjects residing in Cuba which was then a colony of Spain. Both left Havana on a fishing expedition and upon making their way back to the capital encountered the naval blockade of the United States of America who had recently declared war on Spain. The crews of both ships were unaware of the state of war between the two nations and were also unaware of the blockade of the navy. They nevertheless did not try to escape or resist. Upon searching the vessels no weapons or ammunition was found and it appears that the crew members had no intention of aiding the cause of the Spanish forces. Their ships were

commandeered and brought to Fort Keys in Florida wherein they were declared as prizes of war and auctioned off for $490 and $800 respectively. ISSUE Whether the fishing smacks were rightfully captured by armed vessels of the United States during the recent war with Spain. HELD NO. The fishing vessels were captured illegally. By an ancient usage among civilized nations, beginning centuries ago and gradually ripening into a rule of international law, coast fishing vessels pursuing their vocation of catching and bringing in fresh fish have been recognized as exempt, with their cargoes and crews, from capture as prize of war. The United States had no authority to commandeer the fishing smacks in question.

Sources from as far back as 1403 were cited by the court to prove the ancient tradition. Letters between kings of European powers were quoted as well as treaties between European nations. All emphasized the need to spare fishermen and their vessels from the effects of war. Some quotes: “In time of war, the freedom of fishing is respected by belligerents; fishing boats are considered as neutral; in law, as in principle, they are not subject either to capture or to confiscation.” "An exception to the usage of capturing enemy's private vessels at sea is the coast fishery. . . . This principle of immunity from capture of fishing boats is generally adopted by all maritime powers, and in actual warfare they are universally spared so long as they remain harmless” "Regarding the capture of enemy property, an exception must be mentioned, which is a universal custom. Fishing vessels which belong to the adjacent coast, and whose business yields only a necessary livelihood, are, from considerations of humanity, universally excluded from capture." The capture was unlawful and the proceeds gained through the sale of the ships and their cargo should be restored to the claimant. 6.

THE COUNT BERNADOTTE CASE (ADVISORY OPINION OF THE ICJ ON REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UN)

FACTS Folke Bernadotte, Count of Wisborg, was a Swedish diplomat and nobleman noted for his negotiation of the release of about 31,000 prisoners from the German concentration camps during WWII. After the war, he was chosen by the victorious powers to be the UN Security Council mediator in the Arab-Israeli conflict. He was assassinated in Jerusalem by the militant Zionist group, Lehi, while pursuing his official duties.

4 NIKKI HIPOLITO | ROMIR GAVINO | 2D 2010


The UN Security Council condemned the killing of Bernadotte as “a cowardly act, which appears to have been committed by a criminal group of terrorists in Jerusalem while the UN representative was fulfilling his peace-seeking mission in the Holy Land.”

But what is the Member of the United Nations and not merely

ISSUE In the event of an agent of the UN in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the UN the capacity to bring an international claim against the responsible government with a view of obtaining the reparation due in respect of the damage cause (1) to the UN, (2) to the victim or to persons entitled through him? Does the UN have international personality?

Question No. I1 of the General Assembly refers to the reconciliation of action by the United Nations with such rights as may be possessed by the State of which the victim is a national. In other words, what is involved is possible competition between the rights of diplomatic protection, on the one hand, and functional protection on the other. The Court does not state here which of these two categories of protection should have priority and in the case of Member States it stresses their duty to render every assistance provided by Article 2 of the Charter. It adds that the risk of competition between the Organization and the national State can be reduced or eliminated either by a general convention or by agreements entered into in each particular case, and it refers further to cases that have already arisen in which a practical solution has already been found.

HELD YES. The Court states that the Charter conferred upon the UN rights and obligations, which are different from those of its members. The Court stresses further the important political tasks of the UN--the maintenance of international peace and security. Accordingly, the Court concludes that the UN, possessing as it does rights and obligations, has at the same time a large measure of international personality and the capacity to operate upon an international plane, although it is certainly not a super-State.

The Court reaches a conclusion that the UN has the capacity to bring an international claim against a State (whether member or not) for damage resulting from a breach by that State of its obligations towards the UN. The Court points out that it is not called upon to determine the precise extent of the reparation, which the UN would be entitled to recover; the measure of the reparation should depend upon a number of factors. The Court points out in this connection that really only the Organization has the capacity to present a claim in the circumstances referred to, inasmuch as at the basis of an international claim there must be a breach by the defendant State of an obligation towards the Organization. In the present case the State of which the victim is a national could not complain of a breach of an obligation towards itself. Here the obligation is assumed in favor of the Organization. However, the Court admits that the analogy of the traditional rule of diplomatic protection of nationals abroad does not in itself justify an affirmative reply. In fact, there exists no link of nationality between the UN and its agents. This is a new situation and it must be analyzed. Do the provisions of the Charter relating to the functions of the UN imply that the latter is empowered to assure its agents limited protection? These powers, which are essential to the performance of the functions of the UN, must be regarded as a necessary implication arising from the Charter. In discharging its functions, the UN may find it necessary to entrust its agents with important missions to be performed in disturbed parts of the world. These agents must be ensured of effective protection. It is only in this way that the agent will be able to carry out his duties satisfactorily. The Court therefore reaches the conclusion that the UN has the capacity to exercise functional protection in respect of its agents. The situation is comparatively simple: in the case of Member States, for these have assumed various obligations towards the Organization.

situation when a claim is brought against a State, which is not a Organization? The Court is of opinion that the Members of the created an entity possessing objective international personality personality recognized by them alone.

Finally, the Court examines the case in which the agent bears the nationality of the defendant-State. Since the claim brought by the UN is not based upon the nationality of the victim but rather upon his status as an agent of the UN, it does not matter whether or not the State to which the claim is addressed regards him as its own national. The legal situation is not modified thereby. 7.

THE NUREMBERG JUDGMENT (AFTERMATH OF WWII)

FACTS This was a series of military tribunals, held by the main victorious Allied Forces of WWII, most notable for the prosecution of prominent members of the political, military and economic leadership of the defeated Nazi Germany. The trials were held in the city of Nuremberg, Bavaria, Germany at the Palace of Justice.

The International Military Tribunal was created to try and punish persons who had committed crimes against peace, war crimes and crimes against humanity. The Nuremberg Trials had a great influence on the development of international criminal law. The Conclusions of the Nuremberg trials served as models for the Genocide Convention, Universal Declaration of Human Rights, and Convention on the Abolition of the Statute of Limitations on War Crimes and Crimes against Humanity. CRITICISMS The charges against the defendants were only defined as "crimes" after they were committed and that therefore the trial was invalid as a for of 'victors' justice.' Law was created ex post facto to suit the passion and clamor of the time.

However, many felt that the Nuremberg Trials represented a step forward in extending fairness to the vanquished by requiring that actual criminal misdeeds be proved before punsihment could ensue. 5



Another criticism was that some treaties were not binding on the Axis powers because they were not signatories. This was addressed in the judgment relating to war crimes and crimes against humanity, which contains an expansion of customary law: "the Convention Hague 1907 expressly stated that it was an attempt to revise the general laws and customs of was, which it thus recognized to be then existing, but by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war. The implication under international law is that if enough countries have signed up to a treaty, and that treaty has been in effect for a reasonable period of time, then it can be interpreted as binding on all nations, not just those who signed the original treaty. 8.

BANCO NACIONAL DE CUBA v SABBATINO

FACTS In July 1960, the Cuban government retaliated against the US for various measures imposed against the Castro government by expropriating property held by US citizens in Cuba. This included the seizure of sugar owned by CAV. A different American company, Farr, Whitlock & Co. had contracted to buy this sugar from CAV, but after it was seized, they bought it directly from the Cuban government. After receiving the sugar, however, Farr, Whitlock & Co. did not pay the Cuban government--instead, they paid CAV's legal representative, Sabbatino.

Banco Nacional de Cuba, the national bank of Cuba (acting on behalf of the Cuban government), filed a suit in the US District Court for the Southern District of NY against Sabbatino, to recover the money paid for the sugar. The District Court and the CA ruled in favor of Sabbatino, and the case was appealed to the SC. ISSUE Whether the Act of State Doctrine should be applied HELD YES. The Court applied the Act of State Doctrine and upheld the legality of the expropriation because it was an official act of another country, not subject to question in the US courts. The Court refused to hold that the expropriation violated international law, because there no clear unity of international opinion disapproving the seizure of land or property in a country by a government of that country.

It noted that interposition of the Executive was unnecessary to prevent the courts from interfering in the affairs of state, as a single court could upset delicate international negotiations through the assertion of US law in another country. Finally, the Court found no bar to application of the doctrine should imposed by the fact that Cuba had brought the suit, comparing this to the sovereign immunity enjoyed by the US states which can sue, but cannot be sued.

9.

THE CORFU CHANNEL CASE: UK v ALBANIA (ICJ JUDGMENT, MARCH 25, 1949, APRIL 9, 1949, DECEMBER 15, 1949)

FACTS In 1946, an Albanian battery fired in the direction of 2 British cruisers that were navigating through the Corfu Channel. Although the warships did not suffer any damage, the British Government protested, stating that innocent passage through straits, without the need to make any announcement or to await permission, is a right recognized by international law. The Albanian government replied that foreign warships and merchant vessels had no right to pass through Albanian territorial waters without prior authorization. The British government then advised the Albanian government that if, in the future, fire was opened on a British warship passing through the Channel, the fire would be returned. Months after, 4 British warships entered the North Corfu Strait. 2 British destroyers struck mines and were heavily damaged, causing deaths and injuries among the naval personnel. Consequently, British minesweepers swept the North Corfu Channel, after having announced the operation in advance. The Albanian government denied its consent. ISSUE Whether Albania is responsible for the explosions, and is there a duty to pay compensation HELD YES. The Court finds, in the first place, that the explosions were caused by mines belonging to the minefield discovered on November 13th. It is not, indeed, contested that this minefield had been recently laid; it was in the channel, which had been previously swept and check-swept and could be regarded as safe, that the explosions had taken place. The nature of the damage shows that it was due to mines of the same type as those swept on November 13th; finally, the theory that the mines discovered on November 13th might have been laid after the explosions on October 22nd is too improbable to be accepted.

The Court does not feel that it need pay serious attention to the suggestion that Albania herself laid the mines: that suggestion was only put forward pro memoria, without evidence in support, and could not be reconciled with the undisputed fact that, on the whole Albanian littoral, there are only a few launches and motor boats. But the United Kingdom also alleged the connivance of Albania: that the mine laying had been carried out by two Yugoslav warships by the request of Albania, or with her acquiescence. The Court finds that this collusion has not been proved. A charge of such exceptional gravity against a State would require a degree of certainty that has not been reached here, and the origin of the mines laid in Albanian territorial waters remains a matter for conjecture. The United Kingdom also argued that, whoever might be the authors of the mine laying, it could not have been effected without Albania's knowledge. True, the mere fact that mines were laid in Albanian waters neither involves prima facie responsibility nor does it shift the burden of proof. On the other hand, the exclusive control exercised by a State within its frontiers may make it 6



impossible to furnish direct proof of facts, which would involve its responsibility in case of a violation of international law. The State which is the victim must, in that ease, be allowed a more liberal recourse to inferences of fact and circumstantial evidence; such indirect evidence must be regarded as of especial weight when based on a series of facts, linked together and leading logically to a single conclusion.

of the danger to which they were exposed. In fact, nothing was attempted by Albania to prevent the disaster, and these grave omissions involve her international responsibility.

In the present case two series of facts, which corroborate one another, have to be considered.

FACTS Nottebohm, born in Germany, possessed German citizenship. Although he lived in Guatemala from 1905 until 1943, he never became a citizen of Guatemala. In 1939, Nottebohm applied to become a naturalized citizen of Liechtenstein. The application was approved under exceptional circumstances and he became a citizen of Liechtenstein. He then returned to Guatemala on his Liechtenstein passport and informed the local government of his change of nationality. When he tried to return to Guatemala once again in 1943, he was refused entry as an enemy alien since the Guatemalan authorities did not recognize his naturalization and regarded him as still German. It has been suggested that the timing of the event was due to the recent entry of the US and Guatemala into the WWII.

The first relates to the Albanian Government's attitude before and after the catastrophe. The laying of the mines took place in a period in which it had shown its intention to keep a jealous watch on its territorial waters and in which it was requiring prior authorization before they were entered, this vigilance sometimes going so far as to involve the use of force: all of which render the assertion of ignorance a priori improbable. Moreover, when the Albanian Government had become fully aware of the existence of a minefield, it protested strongly against the activity of the British Fleet, but not against the laying of the mines, though this act, if effected without her consent, would have been a very serious violation of her sovereignty; she did not notify shipping of the existence of the minefield, as would be required by international law; and she did not undertake any of the measures of judicial investigation which would seem to be incumbent on her in such a case. Such an attitude could only be explained if the Albanian Government, while knowing of the mine laying, desired the circumstances in which it was effected to remain secret. The second series of facts relates to the possibility of observing the mine laying from the Albanian coast. Geographically, the channel is easily watched: it is dominated by heights offering excellent observation points, and it runs close to the coast (the nearest mine was 500 m. from the shore). The methodical and well-thought-out laying of the mines compelled the minelayers to remain from two to two-and-a-half hours in the waters between Cape Kiephali and the St. George's Monastery. In regard to that point, the naval experts appointed by the Court reported, after enquiry and investigation on the spot, that they considered it to be indisputable that, if a normal look-out was kept at Cape Kiephali, Denta Point, and St. George's Monastery, and if the lookouts were equipped with binoculars, under normal weather conditions for this area, the mine-laying operations must have been noticed by these coastguards. The existence of a look-out post at Denta Point was not established; but the Court, basing itself on the declarations of the Albanian Government that lock-out posts were stationed at other points, refers to the following conclusions in the experts' report: that in the case of mine laying 1) from the North towards the South, the minelayers would have been seen from Cape Kiephali; if from South towards the North, they would have been seen from Cape Kiephali and St. George's Monastery. From all the facts and observations mentioned above, the Court draws the conclusion that the laying of the minefield could not have been accomplished without the knowledge of Albania. As regards the obligations resulting for her from this knowledge, they are not disputed. It was her duty to notify shipping and especially to warn the ships proceeding through the Strait on October 22nd

10. THE NOTTEBOHM CASE: LIECHTENSTEIN v GUATEMALA JUDGMENT, NOVEMBER 18, 1953, APRIL 6, 1955)

(ICJ

He was later extradited to the US where he was held at an internment camp until the end of the war. All his possessions in Guatemala were confiscated. After his release, he lived out the rest of his life in Liechtenstein. The Government of Liechtenstein granted Nottebohm protection against unjust treatment by the government of Guatemala and petitioned the ICJ. However, the government of Guatemala argued that Nottebohm did not gain Liechtenstein citizenship for the purposes of international law. ISSUE Whether the conferment of the Liechtenstein citizenship is not contrary to international law and if Liechtenstein's claim on behalf of Nottebohm is admissible in court HELD NO. The Court agreed with Guatemala and held that the claims by Liechtenstein were inadmissible. Although the Court stated that it is the sovereign right of all states to determine its own citizens and criteria for becoming one in municipal law, such a process would have to be scrutinized on the international plain in questions of diplomatic protection. The Court upheld the principle of effective nationality, where the national must prove a meaningful connection to the state in question. This principle was previously applied only in cases of dual nationality to determine which nationality should be used in a given case. However Nottebohm had forfeited his German nationality and thus only had the nationality of Liechtenstein.

According to the practice of States, nationality constitutes the juridical expression of the fact that an individual is more closely connected with the population of a particular State. Conferred by a State, it only entitles that State to exercise protection if it constitutes a translation into juridical terms of the individual's connection with that State. 7



concerning the validity of the Ambatielos claim With regard to Nottebohm, the Court pointed out that he always retained his family and business connections with Germany and that there is nothing to indicate that his application for naturalization in Liechtenstein was motivated by any desire to disassociate himself from Germany. There is thus the absence of any bond of attachment with Liechtenstein, but there is a long-standing and close connection between him and Guatemala, a link, which his naturalization in no way weakened. That naturalization was not based on any real prior connection with Liechtenstein, nor did it in any way alter the manner 'of life of the person upon whom it was conferred in exceptional circumstances of speed and accommodation. In both respects, it was lacking in the genuineness requisite to an act of such importance, if it is to be entitled to be respected by a State in the position of Guatemala. It was granted without regard to the concept of nationality adopted in international relations. Naturalization was asked for not so much for the purpose of obtaining a legal recognition of Nottebohm's membership in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a national of a belligerent State that of the subject of a neutral State, with the sole aim of thus coming within the protection of Liechtenstein but not of becoming wedded to its traditions, its interests, its way of life or of assuming the obligations other than fiscal obligations and exercising the rights pertaining to the status thus acquired. 11. AMBATIELOS CASE: GREECE v UK (ICJ JUDGMENT, MAY 19, 1953) FACTS The Ambatielos Case was the culmination of a disagreement between the Grecian shipowner Nicolas Eustache Ambatielos and the British government, from whom he had commissioned 9 ships at an agreed price and delivery date. When the British government missed every deadline, the resulting financial losses caused Ambatielos to fail to meet payments, eventually resulting in the reseizure of the already completed ships, ruining Ambatielos, who failed to resolve the matter in the UK courts.

In 1952, Greece took the UK to the ICJ, claiming that the British Board of Trade disregarded British legal protocol by failing to fully disclose to the court the delivery dates promised by the British government, and the British CA disregarded British legal protocol regarding "fresh evidence" by denying appeal, thus denying Ambatielos adequate legal protection, contrary to international law and the Greco-British Treaty of Commerce and Navigation; and, by declining to enter into an arbitration process with Greece, the UK government was in breach of said treaty and its UN agreements to "peacefully resolve" international disputes. The ICJ ruled that it had not jurisdiction in the issue of Ambatielos' trial, but had jurisidiction to decide whether UK is obliged to enter into an arbitration process under the Greco-British Treaty of Commerce and Navigation. ISSUE Whether UK is obliged to enter into an arbitration process under said treaty

HELD YES. Greece and UK rested their case on the Declaration of 1926, which was agreed upon for the purpose of safeguarding their interests with respect to claims on behalf of private persons based on the Treaty of 1886, for which, on the termination of that Treaty, there would have been no remedy in the event of the failure of the Parties to arrive at an amicable settlement.

The Agreement of 1926 relates to a limited category of differences which the Agreement of 1886 provided should be settled by arbitration, namely differences as to the validity of claims in behalf of private persons based on the Treaty of 1886. The expression claims based on the Treaty of 1886 cannot be understood as meaning claims actually supportable under that Treaty. It is not enough that a claim should have a remote connection with the Treaty for it to be based on it. It is not necessary that an unassailable legal basis should be shown for an alleged Treaty violation. It means claims depending for support on the provisions of the Treaty of 1886, so that the claims will eventually stand or fall according as the provisions of the Treaty are construed in one way or another. Consequently, in respect of the Ambatielos claim, it is not necessary for the Court to find that the Hellenic Government's interpretation of the Treaty is the only correct interpretation: it is enough to determine whether the arguments advanced by the Hellenic Government in support of its interpretation are of a sufficiently plausible character to warrant a conclusion that the claim is based on the Treaty. In other words, if an interpretation appears to be an arguable one, whether or not it ultimately prevails, then there are reasonable grounds for concluding that the claim is based on the Treaty. The validity of the respective arguments would be determined by the Commission of Arbitration in passing upon the merits of the difference. The Court then proceeds to deal with two of the contentions put forward by Greece and contested! by the United Kingdom. One is based on the mostfavoured-nation clause in Article X of the Treaty of 1886 which would permit Greece to invoke the benefits of Treaties concluded by the United Kingdom with third states and obtain redress for a denial of justice Mr. Ambatielos would have suffered-if the facts alleged were true. The other contention, based on Article XV, rests on an interpretation of the words "free access to the Courts of Justice" appearing in that Article; again on the assumption that the facts alleged are true, it is contended that Mr. Ambatielos did not have "free access" to English courts. Having regard to these contentions, as well as the divergence of views which give rise to them, and bearing in mind especially the possible interpretation put forward by the Hellenic Government of the provisions of the Treaty of 1886 which it invokes, the Court must conclude that this is a case in which the Hellenic Government is presenting a claim on behalf of a private person based on the Treaty of 1886, and that the difference between the Parties is the kind of difference which, according to the Agreement of 1926, should be submitted to arbitration. 8



12. OPOSA v FACTORAN FACTS The petitioners, all minors, brought an action against Factoran, Jr., then Secretary of the DENR. He was substituted by Alcala, who succeeded him in office. The petitioners sought to have all existing Timber License Agreements (TLAs) in the country cancelled and to order the Secretary of DENR to cease and desist from receiving, accepting, processing, renewing or approving new TLAs, on the ground that the massive commercial logging in the country is causing vast abuses on rainforest. They furthered the rights of their generation and the rights of the generations yet unborn to a balanced and healthful ecology and to protection by the State in its capacity as parens patriae. The petitioners claimed that the DENR Secretary's refusal to cancel the TLAs and to stop issuing them was contrary to the highest law of humankind--natural law-and violative of plaintiffs' right to self-preservation and perpetuation.

The case was dismissed in the lower court, invoking the law on non-impairment of contracts. ISSUE Whether the petitioners, as minors, have the legal standing to file the case HELD YES. The Court, in granting the petition, ruled that the children had the legal standing to file the case based on the concept of INTERGENERATIONAL RESPONSIBILITY. Their right to a healthy environment carried with it an obligation to preserve that environment for the succeeding generations. In this, the Court recognized legal standing to sue on behalf of future generations. The Court also ruled that the law on non-impairment of contracts must give way to the exercise of the police power of the state in the interest of public welfare.

This case has been widely cited internationally for its concept of intergenerational responsibility, particularly in cases related to ecology and the environment. 13. LAGUNA LAKE DEVELOPMENT AUTHORITY v COURT OF APPEALS FACTS RA 4850 created the Laguna Lake Development Authority (LLDA), an agency that works toward environmental protection and ecology, navigational safety, and sustainable development. This agency is responsible for the development of the Laguna Lake area and the surrounding provinces, cities and towns in view of the national and regional plans.

President Marcos passed PD 813 amending certain sections of RA 4850 as response to the deteriorating environmental condition of the Metro Manila area and the surrounding areas of the Laguna de Bay. Problems include the environmental impact of development of water quality, inflow of polluted water, increasing urbanization and floods in Metro Manila. PD 813, in effect, granted the LLDA special powers, which include, among

others, the exclusive jurisdiction to issue new permit for the use of the lake waters for any projects or activities in or affecting the said lake including navigation, construction, and operation of fish pens, fish enclosures, fish corrals and the like. It also has the power to collect fees for these activities and projects which may be shared with other governmental agencies and political subdivisions. RA 7160, the Local Government Code of 1991, was enforced, wherein the municipalities around the Laguna Lake Region interpreted such law as delegating exclusive jurisdiction to issue fishing privileges within their municipal waters. Thus, municipal governments started issuing fishing privileges and fishing permits to big fishpen operators. These unregulated issuances of Mayor's permits to construct fishpens were clear violations of the policies implemented by the LLDA. To solve this problem, LLDA issued a notice to the general public declaring as illegal all fish pens, fish cages, and other aqua-culture structures in the Bay Region that were not registered with it. The notice includes a threat of penalty of demolition and imprisonment and/or fine. After a month, the LLDA sent notices to the concerned owners stating that demolition shall be effected within 10 days. Affected fish pen owners filed injunction cases against LLDA in various courts. LLDA's motion to dismiss these cases on jurisdictional grounds were denied by the lower court. On appeal, the CA dismissed LLDA's petition, on the ground that the LLDA is not a quasi-judicial agency of the government and it cannot exercise quasi-judicial functions as far as fish pens are concerned. ISSUE Whether the LLDA has the authority and power to issue an order which, in its nature and effect was injunctive HELD YES. As a general rule, the adjudication of pollution cases pertains to the Pollution Adjudication Board (PAB), except in cases where the special law provides for another forum. It must be recognized that the LLDA, as a specialized administrative agency, is specifically mandated under RA 4850 and its amendatory laws to carry out and make effective the declared national policy of promoting and accelerating the development and balanced growth of the Laguna Lake area and the surrounding provinces of Rizal and Laguna and the cities of San Pablo, Manila, Pasay, Quezon and Caloocan with due regard and adequate provisions for environmental management and control, preservation of the quality of human life and ecological systems, and the prevention of undue ecological disturbances, deterioration and pollution. Under such a broad grant and power and authority, the LLDA, by virtue of its special charter, obviously has the responsibility to protect the inhabitants of the Laguna Lake region from the deleterious effects of pollutants emanating from the discharge of wastes from the surrounding areas. In carrying out the aforementioned declared policy, the LLDA is mandated, among others, to pass upon and approve or disapprove all plans, programs, and projects proposed by local government offices/agencies within the region, public corporations, and private persons or enterprises where 9



such plans, programs and/or projects are related to those of the LLDA for the development of the region. The immediate response to the demands of "the necessities of protecting vital public interests" gives vitality to the statement on ecology embodied in the Declaration of Principles and State Policies or the 1987 Constitution. Article II, Section 16 which provides: The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. As a constitutionally guaranteed right of every person, it carries the correlative duty of non-impairment. This is but in consonance with the declared policy of the state "to protect and promote the right to health of the people and instill health consciousness among them." 28 It is to be borne in mind that the Philippines is party to the Universal Declaration of Human Rights and the Alma Conference Declaration of 1978 which recognize health as a fundamental human right. The issuance, therefore, of the cease and desist order by the LLDA, as a practical matter of procedure under the circumstances of the case, is a proper exercise of its power and authority under its charter and its amendatory laws. Had the cease and desist order issued by the LLDA been complied with by the City Government of Caloocan as it did in the first instance, no further legal steps would have been necessary.

14. UNDERHILL v HERNANDEZ FACTS In an 1892 revolution, General Hernandez deposed the existing Venezuelan government and took control of Ciudad Bolivar, where Pl Underhill, an American citizen, lived and ran a waterworks system for the city. Underhill applied to Hernandez, requesting a passport to leave the city. Hernandez initially refused, but ultimately granted it. When Underhill finally got back to the US, he brought an action to recover damages caused by the refusal to grant the passport, by his detention in Venezuela, for alleged confinement to his own house, and for certain alleged assaults and affronts by the soldiers of Hernandez's army. ISSUE Whether the action instituted by Underhill will prosper HELD NO. The Court determined that Hernandez had acted in his official capacity as a military commander so his actions were those of the Venezuelan government. The Court therefore refused to hear the claim against Hernandez based on the Act of State Doctrine . The Court reasoned, "Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory." Also, it did not matter that it was a revolution, and that the commander may not have had recognition at the time as the leader from outside the territory. What matters is that he succeeded and is now recognized as such.

10 NIKKI HIPOLITO | ROMIR GAVINO | 2D 2010

Haw Pia vs China Banking Corp

Recommend Documents