PP v. Andre Marti GR81561 January 18, 1991 Facts:
● Andre Marti and his wife Shirley wanted to send packages to their friend in Switzerland and contracted the services of Manila Packing and Export Forwarders.
● When asked by the forwarder if they could examine and inspect the packages, Marti refused, assuring that the packages simply contained books and cigars.
● However, the proprietor opened the boxes for final inspection as part of their SOP. Upon opening, they suspected that the contents were illegal drugs.
● The proprietor reported the incident to NBI which confirmed that the suspected content were marijuana.
● In the presence of the NBI agents, the boxes were opened and found dried marijuana leaves inside.
● After Marti was traced by NBI, he was charged with violation of the Dangerous Drugs Act.Marti assailed the admissibility of the drugs as evidence against him, which, according to him, is obtained in violation of his constitutional rights against unreasonable search and seizure and privacy of communication.
Issue
May an act of a private individual, allegedly in violation of appellant's constitutional rights, be invoked against the State? 82 82
Ruling
No The Court ruled that in the absence of governmental interference, the liberties granted by the Constitution cannot be invoked against the State. The constitutional right against unreasonable search and seizure refers to the immunity of one's person, whether citizen or alien, from interference by government. Its protection is directed only to governmental action.
This right do not require exclusion of evidence obtained through a search by a private citizen.In this case, the evidence was primarily discovered and obtained by a private person, acting in a private capacity and without the intervention of State authorities. Therefore, there is no reason why it should not be admitted to prosecute him. Marti, however, alleged that the NBI agents made an illegal search and seizure of the evidence. The Court pointed out that: a) It was the proprietor who made a reasonable search of the packages in compliance with SOP AND b) the mere presence of the NBI agents did not convert the reasonable search effected into a warrantless search and seizure. Merely to observe and look at that which is in plain sight is not a search. Marti further argued that since the Constitution expressly declares as inadmissible any evidence obtained in violation of the constitutional prohibition against illegal search and seizure, it matters not whether the evidence was procured by police authorities or private individuals. The Court answered that the Constitution, in laying down the principles of the government and fundamental liberties of the people, does not govern relationships between individuals.
Velasquez – Rodriguez v. Honduras Inter-American Court of Human Rights, July 29, 1988 Series C, No. (1988)
ABSTRACT1
This is the first case decided by the Inter-American Court of Human Rights. The Velásquez Rodríguez case, together with the Godínez Cruz, and Fairén Garbi and Solís Corrales cases, all considered by the Court around the same time, form a trio of landmark cases targeting forced disappearance practices by the Honduran government during the early 1980s.
I. FACTS
A. Chronology of Events September 12, 1981: Mr. Angel Manfredo Velásquez Rodríguez, a student at the National Autonomous University of Honduras (Universidad Nacional Autónoma de Honduras, “UNAH”), is involved in activities that the State considers dangerous to national security.2 Between 4:30 and 5:00 pm, several heavily armed men in civilian clothes, driving a white Ford vehicle without license plates, kidnap Mr. Velásquez Rodríguez from a parking lot in downtown Tegucigalpa.3 Mr. Velásquez Rodríguez is taken to an armed forces station located in Barrio El Manchén of Tegucigalpa, where he is detained by members of the National Office of Investigations (“DNI”) and the Honduran Armed Forces, who accuse him of political crimes, and subject him to harsh interrogation and torture.4 September 17, 1981: Mr. Velásquez Rodríguez is moved to the First Infantry Battalion, an armed forces command area, near Tegucigalpa. The police and security forces deny that he was ever detained there.6
B. Other Relevant Facts
Between 1981 and 1984, approximately 150 people disappear in Honduras.7 These disappearances all follow a similar pattern: the victims are kidnapped by force from public places in broad daylight by armed men in civilian clothes and disguises.8 It is common knowledge that the kidnappings are carried out by military personnel or the police, or persons acting under government orders.9 The victims are usually persons whom the authorities consider to be dangerous to State security, and who have been under surveillance for long periods of time.
10 Military and police officials either deny these disappearances or claim that they are incapable of preventing or investigating them, unable to punish those responsible, or powerless to help locate the victims or their remains.11 The investigative committees created by the State and the Armed Forces are ineffective in producing results, and judicial proceedings regarding these disappearances are handled inefficiently.12
I. PROCEDURAL HISTORY A. Before the Commission
October 7, 1981: A petition is submitted to the Inter-American Commission of Human Rights on behalf of Mr. Angel Manfredo Velásquez Rodríguez.13 October 4, 1983: The Commission adopts Resolution No. 30/83, which presumes the allegations contained in the petition to the Commission are true.14 The petition concerns the detention and possible disappearance of Mr. Velásquez Rodríguez, and lays out the allegations that Mr. Velásquez Rodríguez was kidnapped by government officials, taken away to armed forces’ headquarters, detained, interrogated and tortured. November 18, 1983: The State requests reconsideration of Resolution No. 30/93 on the grounds that domestic remedies have not been exhausted, and further claims that the National Government of Investigations has no knowledge of the whereabouts of Mr. Velásquez Rodríguez, and that the State is making every effort to locate Mr. Velásquez Rodríguez.16 The State further contends that Mr. Velásquez Rodríguez is rumored to be “with Salvadoran guerilla groups.”17
May 30, 1984: The Commission informs the State that it has decided “in light of the information submitted by the Honorable Government” to reconsider Resolution No. 30/83 and to continue its study of the case.18
April 18, 1986: The Commission adopts Resolution No. 22/86, finding that the new information presented by the Government is insufficient to warrant reconsideration of Resolution No. 30/83. To the contrary, the Commission finds that all evidence points to the State being responsible for the disappearance of Mr. Velásquez Rodríguez, who is still missing.19 The Commission confirms Resolution No. 30/83 and refers the matter to the Court.20
C. Before the Court
April 24, 1986: The Commission submits the case to the Court after the State failed to adopt its recommendations.21
1. Violations Alleged by Commission22 Article 4 (Right to Life)
Article 5 (Right to Humane Treatment) Article 7 (Right to Personal Liberty) Same Violations Alleged by Commission.
Amnesty International, Association of the Bar of the City of New York, Lawyers Committee for Human Rights, and Minnesota Lawyers International Human Rights Committee submit amicus curiae briefs to the Court.
24 July 23, 1986: Judge Jorge R. Hernández Alcerro recuses himself from hearing the case.
25 August 21, 1986: The State names Judge Rigoberto Espinal Irías as judge ad hoc. 26 October 31, 1986: The State raises objections that the Commission did not follow proper admissibility procedures; that the Commission did not take into account information provided by the State regarding the failure to exhaust domestic legal remedies; and further that these domestic legal remedies were not pursued or exhausted.27 The State also objects on grounds that the Commission did not follow proper procedure for preparing reports, ignored the Convention’s provision on friendly settlements, failed to comply with case referral procedures, and that submitting the State’s observations on the merits is inappropriate at this time
28 June 15, 1987: The State raises its preliminary objections at a hearing.29 The State asserts six preliminary objections: lack of a formal declaration of admissibility by the Commission, failure to attempt a friendly settlement, failure to carry out an on-site investigation, lack of a prior hearing, and improper application of Articles 50, which provides
that the Commission may draw up a report if a settlement is not reached, and 51, which provides that if the State has not responded to the Commission’s report within three months, the Commission may by majority vote set forth its opinions regarding the question submitted.
30 June 26, 1987: The Court delivers its judgment on the State’s preliminary objections.31 The Court unanimously rejects all of the State’s preliminary objections except one, the lack of exhaustion of domestic legal remedies, 32 which the Court orders to be joined to the merits of the case because lack of effective domestic remedy often occurs in forced disappearances. 33 With respect to the objection of the lack of a formal declaration of admissibility by the Commission, the Court finds that there is nothing in the American Convention’s procedures requiring an express declaration of admissibility when the Commission itself is involved.34 Therefore, the Commission’s failure to make an express declaration on the question of admissibility is not a valid basis for barring proper consideration by the Court.35 Regarding the State’s argument that the Commission did not promote a friendly settlement, the Court reasons that based on the text of the American Convention, attempting such a friendly settlement need only happen when “the circumstances of the controversy make the option suitable or necessary,” and that the decision is at the Commission’s sole discretion.36 The Court further finds that the Commission’s failure to conduct an on-site investigation to be inconsequential on the grounds that the rules governing on-site investigations are subject to the discretionary powers of the Commission.37 With respect to the State’s objection to the Commission’s failure to hold a preliminary hearing, the Court holds that a preliminary hearing is a procedural requirement only when the Commission considers it necessary or when the parties express such a request.38 Since neither the petitioners nor the State asked for a hearing, the Commission did not consider it necessary, and was not required to hold one.39 As for the State’s objection to the improper application of Articles 50 and 51 of the Convention, the Court finds that, despite that the requirements were not fully complied with, there has been no impairment of the State’s rights such that the Court should rule the case inadmissible.40
March 20, 1987: In response to the State’s objections, the Commission draws the conclusion that the State violated Articles 4 (Right to Life), 5 (Right to Humane Treatment), and 7 (Right to Personal Liberty) of the American Convention because it detained Mr. Velásquez Rodríguez on September 12, 1981 and he has been missing ever since.41 The Commission further asserts that the substantive or procedural objections raised by the State have no legal basis, and requests that the Court find that the State violated the aforementioned rights of Mr. Velásquez Rodriguez.42
November 6, 1987 - December 18, 1987: The Commission asks the Court to take provisional measures in view of threats against several witnesses who have testified or who have been asked to testify before the Court.43
January 15, 1988: After being informed that witnesses were assassinated on January 5, 1988 and on January 14, 1988, the Court adopts provisional measures requesting that the Government of Honduras adopt all measures necessary to prevent further infringements on the basic rights of those who have appeared or have been summoned to appear before the Court in all pending forced disappearance cases (Velásquez Rodríguez, Fairén Garbi and Solís Corrales and Godínez Cruz cases).44 The Court further requests that the State do everything person to have his life respected.49 The practice of disappearances in Honduras often involved secret executions and concealment of bodies, the practice is a flagrant violation of the right enshrined in Article 4.50 Since Mr. Velásquez Rodríguez has been disappeared for seven years, and because his body was never discovered, the Court found there was a reasonable presumption that he had been killed.51
The Court stated that even if there is the slightest doubt as to this whether Mr. Velásquez Rodriguez is dead, it is presumed that his fate was impacted by authorities who systematically executed detainees without trial and who concealed bodies to avoid punishment.52
Taking the above evidence along with the State’s failure to investigate or to take steps to prevent such forced disappearances from happening, the Court found that the State violated Article 4 (Right to Life). 53 Article 5 (Right to Humane Treatment), in relation to Article 1(1) of the Convention, to the detriment of Mr. Velásquez Rodríguez, 54 because:
Article 5 (Right to Humane Treatment) of the Convention recognizes the right that every individual has to have their physical, mental, and moral integrity respected.55 Article 5 also recognizes the right to be free from cruel, inhuman, or degrading torture, punishment, and treatment.56
Investigations into the practice of forced disappearance in addition to the testimony of found victims suggest that victims of this practice are usually subject to cruel, inhumane, and degrading treatment during their detainment.57 Though there is no direct evidence showing that Mr. Velásquez Rodríguez was tortured, the Court concluded that Mr. Velásquez Rodríguez was kidnapped and imprisoned by government officials, and, because the State has been shown to subject detainees to torture in the past, the Court held that the State violated Article 5 (Right to Humane Treatment) in this case of forced disappearance.58
Article 7 (Right to Personal Liberty), in relation to Article 1(1) of the Convention, to the detriment of Mr. Velásquez Rodríguez, 59 because:
The kidnapping of a person is an arbitrary deprivation of liberty, and an infringement of the right to be brought without delay before a judge or to invoke appropriate procedures to review the legality of an arrest.60 Based on the evidence presented in the case, the Court found that Mr. Velásquez Rodríguez was a victim of arbitrary detention, which deprived him of his physical liberty without cause.61 For that reason, the Court found that the State violated Article 7 (Right to Personal Liberty). 62 Although the Commission did not allege a violation of Article 1(1) (Obligation to Respect Rights) of the American Convention, the Court specifically applies this violation because Article 1(1) contains the generic basis of the protection of all the rights recognized by the Convention.63
The Court discussed the essential nature of Article 1(1) in determining whether a violation of human rights can be imputed to a State by charging States with the duty to respect and guarantee rights that are recognized in the American Convention.64 The Court also rejected the State’s final preliminary objection of non-exhaustion of domestic remedies,65 because:
The requirement of exhaustion of domestic remedies exists to allow the State to resolve the problem under its internal law before being confronted with an international proceeding.”66 The Court agreed with the State that this requirement is necessary because domestic law precedes the international system in the protection of human rights,67 however, the Court also reasoned that the international protection of human rights is founded on the very need to protect victims from arbitrary exercises of governmental authority.68 For that reason, when a petitioner alleges a lack of adequate domestic remedy, international protection is not only justified, but necessary and urgent.69 The Court noted that not all remedies are applicable in every circumstance, and not all remedies are effective.70
The Commission was able to show that although writs of habeas corpus and criminal complaints were filed, they were ineffective.71 While there may have been legal remedies in the State that would have theoretically allowed a detained person to be found, the State’s attempts to solve the cases of disappearance were ineffective because the imprisonments were clandestine, and suspicious procedures were used to bring those responsible to justice.72
NICARAGUA VS UNITED STATES (SUMMARY) ON SELF DEFENCE AND USE OF FORCE
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Case: Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua vs United States) (Merits: focusing on matters relating to the use of force and self-defence)
Year of Decision: 1986
Court: ICJ
NB: This blog post will discuss matters on the use of force and self-defence. If you would like to read about the impact of the Nicaragua judgement on customary international law and the US multilateral reservation please click here.
Overview: The case involved military and paramilitary activities conducted by the United States against Nicaragua from 1981 to 1984. Nicaragua asked the Court to find that these activities violated international law.
Facts of the Case:
In July 1979 the Government of President Somoza collapsed following an armed opposition led by the Frente Sandinista de Liberacibn Nacional (FSLN) . The new government – installed by FSLN – began to meet armed opposition from supporters of the former Somoza Government and ex-members of the National Guard. The US – initially supportive of the
new government – changed its attitude when, according to the United States, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador. In April 1981 it terminated United States aid to Nicaragua and in September 1981, according to Nicaragua, the United States “decided to plan and undertake activities directed against Nicaragua”.
The armed opposition to the new Government was conducted mainly by (1) Fuerza Democratica Nicaragüense (FDN), which operated along the border with Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica, (see map of the region). Initial US support to these groups fighting against the Nicaraguan Government (called “contras”) was covert. Later, the United States officially acknowledged its support (for example: In 1983 budgetary legislation enacted by the United States Congress made specific provision for funds to be used by United States intelligence agencies for supporting “directly or indirectly military or paramilitary operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in control of the contras, the United States devised their strategy and directed their tactics and that they were paid for and directly controlled by United States personal. Nicaragua also alleged that some attacks were carried out by United States military – with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil installations and a naval base. Nicaragua alleged that aircrafts belonging to the United States flew over Nicaraguan territory to gather intelligence, supply to the contras in the field and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJ’s jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing, however, stated that it relied on an inherent right of collective self-defence guaranteed in A. 51 of the UN Charter by “providing, upon request, proportionate and appropriate assistance…” to Costa Rica, Honduras and El Salvador in response to Nicaragua’s alleged acts aggression against those countries (paras. 126, 128).
Questions before the Court:
Did the United States breach its customary international law obligation – not to intervene in the affairs of another State – when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua?
Did the United States breach its customary international law obligation – not to use force against another State – when it directly attacked Nicaragua in 1983 – 1984 and when its activities in bullet point 1 above resulted in the use of force?
If so, can the military and paramilitary activities that the United States undertook in and against Nicaragua be justified as collective self-defence?
Did the United States breach its customary international law obligation – not to violate the sovereignty of another State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and by acts referred to in bullet point 2 above?
Did the United States breach its customary international law obligations – not to violate the sovereignty of another State, not to intervene in its affairs, not to use force against another State and not to interrupt peaceful maritime commerce – when it laid mines in the internal waters and the territorial sea of Nicaragua?ICJ decision: The United States violated customary international law in relation to bullet points 1, 2, 4 and 5 above. On bullet point 3, the Court found that the United States could not rely on collective self-defence to justify its use of force against Nicaragua.
Relevant Findings of the Court:
1. The court held that the United States breached its customary international law obligation – not to use force against another State: (1) when it directly attacked Nicaragua in 1983 – 1984; and (2) when its activities with the contra forces resulted in the threat or use of force (see paras 187 -201).
The Court held that:
The prohibition on the use of force is found in Article 2(4) of the UN Charter and in customary international law.
In a controversial finding the court sub-classified the use of force as: (1) the “most grave forms of the use of force” (i.e. those that constitute an armed attack) and (2) the “less grave form” (i.e. organizing, instigating, assisting or participating in acts of civil strife and terrorist acts in another State – when the acts referred to involve a threat or use of force not amounting to an armed attack).
The United States violated the customary international law prohibition on the use of force when it laid mines in Nicaraguan ports. It violated this prohibition when it attacked Nicaraguan ports, oil installations and a naval base (see below). The United States could justify its action on collective self-defence, if certain criteria were met – this aspect is discussed below.
The United States violated the customary international law prohibition on the use of force when it assisted the contras by “organizing or encouraging the organization of irregular forces and armed bands… for incursion into the territory of another state” and participated “in acts of civil strife…in another State” when these acts involved the threat or use of force.
The supply of funds to the contras did not violate the prohibition on the use of force. Nicaragua argued that the timing of the offensives against it was determined by the United States: i.e. an offensive could not be launched until the requisite funds were available. The Court held that “…it does not follow that each provision of funds by the United States was made to set in motion a particular offensive, and that that offensive was planned by the United States.” The Court held further that while the arming and training of the contras involved the threat or use of force against Nicaragua, the supply of funds, in it self, only amounted to an act of intervention in the internal affairs of Nicaragua (para 227) – this aspect is discussed below.What is an armed attack?
A controversial but interesting aspect of the Court’s judgement was its definition of an armed attack. The Court held that an armed attack included:(1) action by regular armed forces across an international border; and
(2) “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its (the State’s) substantial involvement therein”
NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the Definition of Aggression .
Mere frontier incidents are not considered as an armed attack – unless because of its scale and effects it would have been classified as an armed attack if it was carried out by regular forces.
Assistance to rebels in the form of provision of weapons or logistical support did not constitute an armed attack – it can be regarded as a threat or use of force, or an intervention in the internal or external affairs of other States (see paras 195, 230).
Under Article 51 of the UN Charter and under CIL – self-defence is only available against a use of force that amounts to an armed attack (para 211).NB: In in the Case Concerning Oil Platforms and the advisory opinion on the Legal Consequences of of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter called the Palestine wall case) the ICJ upheld the definition of “armed attack” proposed in the Nicaragua case. In the Palestinian wall case, the attacks from which Israel was claiming self defence originated from non-State actors. However, the Court held that
Article 51’s inherent right of self defence was available to one State only against another State (para 139). Judges Higgins, Buergenthal and Kooijmans opposed this narrow view. Articles on State Responsibility, prepared by the International Law Commission, provided significant guidance as to when acts of non-State actors may be attributed to States. These articles, together with recent State practice relating attacks on terrorists operating from other countries (see legal opinions surrounding the United States attack on Afghanistan), may have widened the scope of an armed attack, and consequently, the right of self defence, envisaged by the ICJ.
2. The Court held that the United States could not justify its military and paramilitary activities on the basis of collective self-defence.
Customary international law allows for exceptions to the prohibition on the use of force – including the right to individual or collective self-defence (for a difference between the two forms of self defence, click here). The United States, at an earlier stage of the proceedings, had asserted that the Charter itself acknowledges the existence of this customary international law right when it talks of the “inherent” right of a State under Article 51 of the Charter (para.193).
When a State claims that it used force in collective self-defence, the Court would look into two aspects:(1) whether the circumstances required for the exercise of self-defence existed and
(2) whether the steps taken by the State, which was acting in self-defence, corresponds to the requirements of international law (i.e. did it comply with the principles of necessity and proportionality).
Several criteria must be met for a State to exercise the right of individual or collective self-defence:(1) A State must have been the victim of an armed attack;
(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an armed attack took place nor not is done by the state who was subjected to the attack. A third State cannot exercise a right of collective self-defence based its (the third State’s) own assessment]; and
(3) In the case of collective self-defence – the victim State must request for assistance (“there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack”).
(4) The State does not, under customary international law, have the same obligation as under Article 51 of the UN Charter to report to the Security Council that an armed attack happened – but “the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence” (see below).
“At this point, the Court may consider whether in customary international law there is any requirement corresponding to that found in the treaty law of the United Nations Charter, by which the State claiming to use the right of individual or collective self-defence must report to an international body, empowered to determine the conformity with international law of the measures which the State is seeking to justify on that basis. Thus Article 51 of the United Nations Charter requires that measures taken by States in exercise of this right of self-defence must be “immediately reported” to the Security Council. As the Court has observed above (paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in customary international law, may well be so unencumbered with the conditions and modalities surrounding it in the treaty. Whatever influence the Charter may have had on customary international law in these matters, it is clear that in customary international law it is not a condition of the lawfulness of the use of force in self-defence that a procedure so closely dependent on the content of a treaty commitment and of the institutions established by it, should have been followed. On the other hand, if self-defence is advanced as a justification for measures which would otherwise be in breach both of the principle of customary international law and of that contained in the Charter, it is to be expected that the conditions of the Charter should be respected. Thus for the purpose of enquiry into the customary law position, the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence (See paras 200, 232 -236)”.
The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and Honduras in determining whether an armed attack was undertaken by Nicaragua against the three countries – which in turn would necessitate self-defence (paras 230 – 236). The Court referred to statements made by El Salvador, Costa Rica, Honduras and the United States before the Security Council. None of the countries who were allegedly subject to an armed attack by Nicaragua (1) declared themselves as a victim of an armed attack or request assistance from the United States in self-defence – at the time when the United States was allegedly acting in collective self-defence; and (2) the United States did not claim that it was acting under Article 51 of the UN Charter and it did not report that it was so acting to the Security Council. The Court concluded that the United States cannot justify its use of force as collective self-defence.
The criteria with regard to necessity and proportionality, that is necessary when using force in self-defence – was also not fulfilled (para 237).3. The Court held that the United States breached its CIL obligation – not to intervene in the affairs of another State – when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua.
The principle of non- intervention means that every State has a right to conduct its affairs without outside interference – i.e it “…forbids States or groups of States to intervene directly or indirectly in internal or external affairs of other States.” . This is a corollary of the principle of sovereign equality of States.A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State (para 205).
Nicaragua stated that the activities of the United States were aimed to overthrow the government of Nicaragua and to substantially damage the economy and weaken the political system to coerce the Government of Nicaragua to accept various political demands of the United States. The Court held:“…first, that the United States intended, by its support of the contras, to coerce the Government of Nicaragua in respect of matters in which each State is permitted, by the principle of State sovereignty, to decide freely (see paragraph 205 above) ; and secondly that the intention of the contras themselves was to overthrow the present Government of Nicaragua… The Court considers that in international law, if one State, with a view to the coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that amounts to an intervention by the one State in the internal affairs of the other, whether or not the political objective of the State giving such support and assistance is equally far reaching.”
The financial support, training, supply of weapons, intelligence and logistic support given by the United States to the contras was a breach of the principle of non-interference. “…no such general right of intervention, in support of an opposition within another State, exists in contemporary international law”, even if such a request for assistance is made by an opposition group of that State (see para 246 for more).
However, in a controversial finding, the Court held that the United States did not devise the strategy, direct the tactics of the contras or exercise control on them in manner so as to make their acts committed in violation of international law imputable to the United States (see in this respect “Determining US responsibility for contra operations under international law” 81 AMJIL 86).T he Court concluded that “a number of military and paramilitary operations of the contras were decided and planned, if not actually by United States advisers, then at least in close collaboration with them, and on the basis of the intelligence and logistic support which the United States was able to offer, particularly the supply aircraft provided to the contras by the United States” but not all contra operations reflected strategy and tactics wholly devised by the United States.“In sum, the evidence available to the Court indicates that the various forms of assistance provided to the contras by the United States have been crucial to the pursuit of their activities, but is insufficient to demonstrate their complete dependence on United States aid. On the other hand, it indicates that in the initial years of United States assistance the contra force was so dependent. However, whether the United States Government at any stage devised the strategy and directed the tactics of the contras depends on the extent to which the United States made use of the potential for control inherent in that dependence. The Court already indicated that it has insufficient evidence to reach a finding on this point. It is a fortiori unable to determine that the contra force may be equated for legal purposes with the forces of the United States…The Court has taken the view (paragraph 110 above) that United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary.”
Interesting, however, the Court also held that providing “…humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law” (para 242).
In the event one State intervenes in the affairs of another State, the victim State has a right to intervene in a manner that is short of an armed attack (210).“While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of gravity cannot as the Court has already observed (paragraph 21 1 above). produce any entitlement to take collective countermeasures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate counter-measures on the part of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third State, the United States, and particularly could not justify intervention involving the use of force.”
4. The United States breached its customary international law obligation – not to violate the sovereignty of another State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its territorial sea.
The ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of the territorial sea or internal waters of Nicaragua “by persons in the pay or acting ion the instructions” of the United States and acting under its supervision with its logistical support. The United States did not issue any warning on the location or existence of mines and this resulted in injuries and increases in maritime insurance rates.
The court found that the United States also carried out high-altitude reconnaissance flights over Nicaraguan territory and certain low-altitude flights, complained of as causing sonic booms.
The basic concept of State sovereignty in customary international law is found in Article 2(1) of the UN Charter. State sovereignty extends to a State’s internal waters, its territorial sea and the air space above its territory. The United States violated customary international law when it laid mines in the territorial sea and internal waters of Nicaragua and when it carried out unauthorised overflights over Nicaraguan airspace by aircrafts that belong to or was under the control of the United States.Material on the Nicaragua case
The following contains a list of scholarly articles and other material that discuss the Nicaragua case. If you would like to add to the list, please note your suggestions in the comment box.
The judgment including separate opinions of individual judges and summaries of the judgment and orders
The World Court and Jus Cogens, 81 AMJIL 93, Gorden A. Christenson. Christenson argues that an independent development of the customary law right divorced from the treaty can have wider consequences:
We have then a double irony. The Court uses the United States position accepting the treaty norm against the threat or use of force also as a customary norm possibly having jus cogens quality, in part, to justify taking jurisdiction as a matter quite independent of the norm that otherwise falls under the multilateral treaty reservation. Since there are two separate sources of the law, the choice of the one source rather than the other means that the norm relied upon survives the jurisdictional bar to the use of the other. Yet the two norms are not different enough to undermine completely the content of the Charter norm. This formalism simply masks the more interesting question of the Court’s institutional claim, given the ineffectiveness of the UN Security system, to develop an international public order case by case, by breaking away form the strictures of the Charter and treaty norms. The Court untied the treaty norms from their constraints within the United Nations or regional collective security systems, a potentially destabilizing decision, one whose consequences are unforeseen. The decision based on the validity of an autonomous norm of customary international law free from the Charter is a constitutive one of potential great significance (81 AMJIL 100, 1987).
Trashing customary international law, Antony D’Amato, 81 AMJIL 102 (1987) (full text): (D’Amato discusses the paucity of State practice examined by the international court of justice before concluding that the principle non-intervention formed part of customary international law. He argues that the acceptance of General Assembly resolutions do not manifest opinio juris. He states that the Court failed to consider that Article 2(4) continued to evolve through the years.)
The World Court’s Achievement, Richard Falk, 81 AMJIL 106 (Falk takes a generally positive approach to the judgment, gives a good overview of the case and Judge Shwebel’s dissent)
Drawing the right line, Tom J. Farer, 81 AMJIL 112 (Farer takes a cold-war contextual approach to the judgment and supports the Court’s narrow view of an armed attack and self defence).
Some observations on the ICJ’s procedural and substantive innovations, Thomas M. Franck, 81 AMJIL 116 (criticizes the determination of relevant State practice in relation to non-intervention and the reliance on UN resolutions to illicit opinio juris (it alleges that the Court sought to harden soft law prematurely). Frank points out that the interventions falling short of armed attacks would not allow States to target rebel groups in another State’s territory even if the insurgency is planned, trained, armed and directed from that territory).
Protecting the Court’s institutional interests: Why not the Marbury approach? Michael J. Glennon, 81 AMJIL 121 (discusses reservations before the ICJ and the Court’s prerogative to determine its own jurisdiction)
Discretion to decline to exercise jurisdiction, Edward Gorden, 81 AMJIL 129 (discusses the discretionary power of the court to decline to exercise its jurisdiction at the merit stages).
The Nicaragua judgment and the future of the law of force and self-defense, John Lawrence Hargrove 81AMJIL 135 (Hargrove criticizes the ICJ’s construction of the notion of collective self defense, armed attack and forcible countermeasures).
Somber reflections on the compulsory jurisdiction of the international court, Mark Weston Janis, 81 AMJIL 144
Custom on a sliding scale, Frederic L. Kirgis 81 AMJIL 146 (Kirgis discusses the relationship between State practice and opinio juris, criticizes the methods (or lack thereof) of the Court in determining the customary law nature of Article 2(4) of the Charter. Points out that actual State practice on intervention did not support the Court’s findings).
Determining US responsibility for contra operations under international law, Francis V. Boyle
Le peuple, c’est moi!The world court and human rights, 81 AMJIL 173 LJIL Symposium: Discussion of the ICJ Nicaragua Judgment
The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In
Between?, Lori Fisler Damrosch (Abstract: At the time the United States withdrew from participation in the Nicaragua case at the International Court of Justice, the US government expressed concern that ‘the course on which the Court may now be embarked could do enormous harm to it as an institution and to the cause of international law’. This essay examines whether or to what extent the anticipated negative effects came to pass. It concludes that dire predictions of harm to the Court were overstated. Twenty-five years later, the rate at which states accept the Court’s jurisdiction has held steady. Only a few states have added jurisdictional reservations concerning military activities. The mix of cases being brought to the Court has shifted towards a more representative distribution. States are generally complying with the Court’s decisions, though some compliance problems remain. The most serious negative impact has been on the willingness of the United States (still the Court’s most active litigant) to participate fully in international dispute settlement.)
LJIL Symposium: The Nicaragua Case: Its Impact, John Dugard
LJIL Symposium: Response of Lori F. Damrosch to Comments by John Dugard, Lori F. Damrosch
The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, by Marcelo Kohen(Abstract: This article focuses on the analysis by the International Court of Justice of the principle of non-intervention in domestic affairs in its judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua and contrasts it with the evolution of international law and practice in this field. It is proposed that the Court’s 1986 analysis not only remains of actuality today, but also constitutes a precursor to legal developments that have since taken place. This is particularly the case with regard to the relationship between the protection of human rights on the one hand and the safeguard of state sovereignty and the collective security regime on the other. The 1986 judgment helped to clarify the content of humanitarian assistance. It constituted the starting point for the development of this concept in a series of GA resolutions that were subsequently adopted. The controversial doctrine of ‘humanitarian intervention’, as well as state practice in violation of this principle, in no way led to modifying existing international law. Similarly, the new concept of ‘responsibility to protect’, which places emphasis on collective security and discounts unilateral action, has not led to the disappearance of the principle of non-intervention either.)
Oposa vs. Factoran Case Digest (G.R. No. 101083, July 30, 1993) FACTS:
The plaintiffs in this case are all minors duly represented and joined by their parents. The first complaint was filed as a taxpayer's class suit at the Branch 66 (Makati, Metro Manila), of the Regional Trial Court, National capital Judicial Region against defendant (respondent) Secretary of the Department of Environment and Natural Reasources (DENR). Plaintiffs alleged that they are entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests. They further asseverate that they represent their generation as well as generations yet unborn and asserted that continued deforestation have caused a distortion and disturbance of the ecological balance and have resulted in a host of environmental tragedies.
Plaintiffs prayed that judgement be rendered ordering the respondent, his agents, representatives and other persons acting in his behalf to cancel all existing Timber License Agreement (TLA) in the country and to cease and desist from receiving, accepting, processing, renewing or approving new TLAs.
Defendant, on the other hand, filed a motion to dismiss on the ground that the complaint had no cause of action against him and that it raises a political question.
The RTC Judge sustained the motion to dismiss, further ruling that granting of the relief prayed for would result in the impairment of contracts which is prohibited by the Constitution.
Plaintiffs (petitioners) thus filed the instant special civil action for certiorari and asked the court to rescind and set aside the dismissal order on the ground that the respondent RTC Judge gravely abused his discretion in dismissing the action.
ISSUES:
(1) Whether or not the plaintiffs have a cause of action. (2) Whether or not the complaint raises a political issue.
(3) Whether or not the original prayer of the plaintiffs result in the impairment of contracts. RULING:
First Issue: Cause of Action.
Respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for which any relief is provided by law. The Court did not agree with this. The complaint focuses on one fundamental legal right -- the right to a balanced and healthful ecology which is incorporated in Section 16 Article II of the Constitution. The said right carries with it the duty to refrain from impairing the environment and implies, among many other things, the judicious management and conservation of the country's forests. Section 4 of E.O. 192 expressly mandates the DENR to be the primary government agency responsible for the governing and supervising the exploration, utilization, development and conservation of the country's natural resources. The policy declaration of E.O. 192 is also substantially re-stated in Title XIV Book IV of the Administrative Code of 1987. Both E.O. 192 and Administrative Code of 1987 have set the objectives which will serve as the bases for policy formation, and have defined the powers and functions of the DENR. Thus, right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as DENR's duty to protect and advance the said right.
A denial or violation of that right by the other who has the correlative duty or obligation to respect or protect or respect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLA, which they claim was done with grave abuse of discretion, violated their right to a balance and healthful ecology. Hence, the full protection thereof requires that no further TLAs should be renewed or granted.
After careful examination of the petitioners' complaint, the Court finds it to be adequate enough to show, prima facie, the claimed violation of their rights.
Second Issue: Political Issue.
Second paragraph, Section 1 of Article VIII of the constitution provides for the expanded jurisdiction vested upon the Supreme Court. It allows the Court to rule upon even on the wisdom of the decision of the Executive and Legislature and to declare their acts as invalid for lack or excess of jurisdiction because it is tainted with grave abuse of discretion. Third Issue: Violation of the non-impairment clause.
The Court held that the Timber License Agreement is an instrument by which the state regulates the utilization and disposition of forest resources to the end that public welfare is promoted. It is not a contract within the purview of the due process clause thus, the non-impairment clause cannot be invoked. It can be validly withdraw whenever dictated by public interest or public welfare as in this case. The granting of license does not create irrevocable rights, neither is it property or property rights.
Moreover, the constitutional guaranty of non-impairment of obligations of contract is limit by the exercise by the police power of the State, in the interest of public health, safety, moral and general welfare. In short, the non-impairment clause must yield to the police power of the State.
The instant petition, being impressed with merit, is hereby GRANTED and the RTC decision is SET ASIDE.
RULE 7 WRIT OF KALIKASAN
Section 1. Nature of the writ. - The writ is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated,
or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. Section 2. Contents of the petition. - The verified petition shall contain the following:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent or if the name and personal circumstances are unknown and uncertain, the respondent may be described by an assumed appellation;
(c) The environmental law, rule or regulation violated or threatened to be violated, the act or omission complained of, and the environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.
(d) All relevant and material evidence consisting of the affidavits of witnesses, documentary evidence, scientific or other expert studies, and if possible, object evidence;
(e) The certification of petitioner under oath that: (1) petitioner has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency, and no such other action or claim is pending therein; (2) if there is such other pending action or claim, a complete statement of its present status; (3) if petitioner should learn that the same or similar action or claim has been filed or is pending, petitioner shall report to the court that fact within five (5) days therefrom; and
(f) The reliefs prayed for which may include a prayer for the issuance of a TEPO.
Section 3. Where to file. - The petition shall be filed with the Supreme Court or with any of the stations of the Court of Appeals.
Section 4. No docket fees. - The petitioner shall be exempt from the payment of docket fees.
Section 5. Issuance of the writ. - Within three (3) days from the date of filing of the petition, if the petition is sufficient in form and substance, the court shall give an order: (a) issuing the writ; and (b) requiring the respondent to file a verified return as provided in Section 8 of this Rule. The clerk of court shall forthwith issue the writ under the seal of the court including the issuance of a cease and desist order and other temporary reliefs effective until further order.
Section 6. How the writ is served. - The writ shall be served upon the respondent by a court officer or any person deputized by the court, who shall retain a copy on which to make a return of service. In case the writ cannot be served personally, the rule on substituted service shall apply.
Section 7. Penalty for refusing to issue or serve the writ. - A clerk of court who unduly delays or refuses to issue the writ after its allowance or a court officer or deputized person who unduly delays or refuses to serve the same shall be punished by the court for contempt without prejudice to other civil, criminal or administrative actions.
Section 8. Return of respondent; contents. - Within a non-extendible period of ten (10) days after service of the writ, the respondent shall file a verified return which shall contain all defenses to show that respondent did not violate or threaten to violate, or allow the violation of any environmental law, rule or regulation or commit any act resulting to environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.
All defenses not raised in the return shall be deemed waived.
The return shall include affidavits of witnesses, documentary evidence, scientific or other expert studies, and if possible, object evidence, in support of the defense of the respondent. A general denial of allegations in the petition shall be considered as an admission thereof. Section 9. Prohibited pleadings and motions. - The following pleadings and motions are prohibited:
(a) Motion to dismiss;
(b) Motion for extension of time to file return; (c) Motion for postponement;
(d) Motion for a bill of particulars; (e) Counterclaim or cross-claim; (f) Third-party complaint; (g) Reply; and
(h) Motion to declare respondent in default.
Section 10. Effect of failure to file return. - In case the respondent fails to file a return, the court shall proceed to hear the petition ex parte.
Section 11. Hearing. - Upon receipt of the return of the respondent, the court may call a preliminary conference to simplify the issues, determine the possibility of obtaining stipulations or admissions from the parties, and set the petition for hearing.
The hearing including the preliminary conference shall not extend beyond sixty (60) days and shall be given the same priority as petitions for the writs of habeas corpus, amparo and habeas data.
Section 12. Discovery Measures. - A party may file a verified motion for the following reliefs:
(a) Ocular Inspection; order — The motion must show that an ocular inspection order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. It shall state in detail the place or places to be inspected. It shall be supported by affidavits of witnesses having personal knowledge of the violation or threatened violation of environmental law.
After hearing, the court may order any person in possession or control of a designated land or other property to permit entry for the purpose of inspecting or
photographing the property or any relevant object or operation thereon. The order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. (b) Production or inspection of documents or things; order – The motion must show that a production order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces.
After hearing, the court may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.
The production order shall specify the person or persons authorized to make the production and the date, time, place and manner of making the inspection or production and may prescribe other conditions to protect the constitutional rights of all parties.
Section 13. Contempt. - The court may after hearing punish the respondent who refuses or unduly delays the filing of a return, or who makes a false return, or any person who disobeys or resists a lawful process or order of the court for indirect contempt under Rule 71 of the Rules of Court.
Section 14. Submission of case for decision; filing of memoranda. - After hearing, the court shall issue an order submitting the case for decision. The court may require the filing of memoranda and if possible, in its electronic form, within a non-extendible period of thirty (30) days from the date the petition is submitted for decision.
Section 15. Judgment. - Within sixty (60) days from the time the petition is submitted for decision, the court shall render judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage;
(b) Directing the respondent public official, government agency, private person or entity to protect, preserve, rehabilitate or restore the environment; (c) Directing the respondent public official, government agency, private person or entity to monitor strict compliance with the decision and orders of the court; (d) Directing the respondent public official, government agency, or private person or entity to make periodic reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the
environment, except the award of damages to individual petitioners. Section 16. Appeal. - Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration, any party may appeal to the Supreme Court under Rule 45 of the Rules of Court. The appeal may raise questions of fact. Section 17. Institution of separate actions. - The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative actions.
In re Yamashita
Facts: General Tomoyuki Yamashita is the Commanding General of the Japanese ImperialArmy. When he surrendered in 1945, an American military commission tried him oncharges that he permitted atrocities against
both civilians and prisoners of war, inviolation of the law of war.The bills of particulars, filed by the prosecution by order of the commission, allege aseries of 123 acts, committed by members of the forces under petitioner's command.The first item specifies the execution of a 'a deliberate plan and purpose to massacre andexterminate a large part of
the civilian population of Batangas Province, and to devastateand destroy public, private and religious property therein, as a result of which more than25,000 men, women and children, all unarmed noncombatant civilians, were brutallymistreated and killed, without cause or trial, and entire settlements were devastated anddestroyed wantonly and without military necessity.' Other items specify acts of violence,cruelty and homicide inflicted upon the civilian population and prisoners of war, acts ofwholesale pillage and the wanton destruction of religious monuments. It is not denied that such acts directed against the civilian population of an occupiedcountry and against prisoners of war are recognized in international law as violations ofthe law of war under Fourth Hague Convention. But it is urged t at the charge does notallege that petitioner has either committed or directed the commission of such acts, andconsequently that no violation is charged as against him. But this overlooks the fact thatthe gist of the charge is an unlawful breach of
duty by petitioner as an army commanderto control the operations of the members of his command by 'permitting them to commit'the extensive and widespread atrocities specified. The question then is whether the law of war imposes on an army commander a duty totake such appropriate measures as are within his power to control the troops
under hiscommand for the prevention of the specified acts which are violations of the law of warand which are likely to attend the occupation
of hostile territory by an uncontrolledsoldiery, and whether he may be charged with personal responsibility for his failure totake such measures when violations result. That this was the precise issue to be tried wasmade clear by the statement of the prosecution at the opening
of the trial. Issue:
Yamashita’s counsel applied leave to file petitions for writs of habeas corpus andprohibition, challenging the jurisdiction and legal authority of the
commission .Held:
The writs were DENIED.The court found that Congress had legally authorized the commission's establishmentunder the war powers, and that the charge
was adequate to state a violation of the law ofwar.It is evident that the conduct of military operations by troops whose excesses areunrestrained by the orders or efforts of their commander would almost certainly result inviolations which it is the purpose of the law of war to prevent. Its purpose to protectcivilian populations and prisoners of war from brutality would largely be defeated if thecommander of an
invading army could with impunity neglect to take reasonable measuresfor their protection. Hence the law of war presupposes that its violation is to be avoidedthrough the control of the operations of war by
commanders who are to some extentresponsible for their subordinates.Command responsibility, sometimes referred to as the
Yamashita standard or the Medinastandard, is the doctrine of hierarchical accountability in cases of war crimes.
Thedoctrine was established by the Hague Conventions IV (1907) and X (1907).The "Yamashita standard" is based upon the precedent set by the United
States SupremeCourt in the case of Japanese General Tomoyuki Yamashita. He was prosecuted, in a stillcontroversial trial, for
atrocities committed by troops under his command in thePhilippines. Yamashita was charged with "unlawfully disregarding and failing todischarge his duty as a commander to
control the acts of members of his command bypermitting them to commit war crimes."The "Medina standard" is based upon the prosecution of US Army Captain ErnestMedina in connection with the My Lai Massacre during the Vietnam War. It holds that acommanding officer, being aware of a human rights violation or a war crime, will be heldcriminally liable when he does not take action. (Medina was,
however, acquitted of allcharges.)
CASE CONCERNING THE BARCELONA TRACTION, LIGHT AND POWER COMPANY, LIMITED
(SECOND PHASE) Judgment of 5 February 1970
In its judgment in the second phase of the case concerning the Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), the Court rejected Belgium's claim by fifteen votes to one.
The claim, which was brought before the Court on 19 June 1962, arose out of the adjudication in bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada. Its object was to seek reparation for damage alleged by Belgium to have been sustained by Belgian nationals, shareholders in the company, as a result of acts said to be contrary to international law committed towards the company by organs of the Spanish State.
The Court found that Belgium lacked jus standi to exercise diplomatic protection of shareholders in a Canadian company with respect to measures taken against that company in Spain.
Judges Petr�n and Onyeama appended a joint declaration to the Judgment; Judge Lachs appended a declaration. President Bustamante y Rivero and Judges Sir Gerald
Fitzmaurice, Tanka, Jessup, Morelli, Padilla Nervo, Gros and Ammoun appended Separate Opinions.
Judge ad hoc Riphagen appended a Dissenting Opinion. Background of Events in the Case
(paras. 8-24 of the Judgment)
The Barcelona Traction, Light and Power Company, Limited, was incorporated in 1911 in Toronto (Canada), where it has its head office. For the purpose of creating and developing an electric power production and distribution system in Catalonia (Spain) it formed a number of subsidiary companies, of which some had their registered offices in Canada and the others in Spain. In 1936 the subsidiary companies supplied the major part of Catalonia's electricity requirements. According to the Belgian Government, some years after the first world war Barcelona Traction share capital came to be very largely held by Belgian nationals, but the Spanish Government contends that the Belgian nationality of the shareholders is not proven.
Barcelona Traction issued several series of bonds, principally in sterling. The sterling bonds were serviced out of transfers to Barcelona Traction effected by the subsidiary companies operating in Spain. In 1936 the servicing of the Barcelona Traction bonds was suspended on account of the Spanish civil war. After that war the Spanish exchange control authorities refused to authorize the transfer of the foreign currency necessary for the resumption of the servicing of the sterling bonds. Subsequently, when the Belgian Government complained of this, the Spanish Government stated that the transfers could not be authorized unless it were shown that the foreign currency was to be used to repay debts arising from the genuine importation of foreign capital into Spain and that this had not been established. In 1948 three Spanish holders of recently acquired Barcelona Traction sterling bonds petitioned the court of Reus (Province of Tarragona) for a declaration adjudging the company bankrupt, on account of failure to pay the interest on the bonds. On 12 February 1948 a judgment was given declaring the company bankrupt and ordering the seizure of the assets of Barcelona Traction and of two of its subsidiary companies. Pursuant to this