Public International Law Cases

Public International Law Cases

Texaco v. Libya, 17 ILM or 53 ILR 389, 1978 • Doctrines: – In determining the binding nature of the GA resolution, the court looked at the voting patterns of the participant states. It is generally recommendatory but may serve as an indicia of norm. – When there was clear evidence of contrary opinio juris by a number of States, including specially affected ones, international case-law has held that the existence of a rule of customary international was not proven.

Texaco v. Libya, 17 ILM or 53 ILR 389, 1978 Facts: • •

Texaco was operating in Libya under 14 different concession agreements. However sometime in 1973 and 1974, the Libyan Government promulgated decrees purporting to nationalize all of the rights, interest and property of Texaco in Libya. Texaco objected claiming: – Violation of the terms and conditions of their Deeds of Concession including Clause 28, permitting international arbitration.

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The Sole Arbitrator held that – (a) the Deeds of Concession are binding on the parties, – (b) by adopting the measures of nationalization, the Libyan Government breached its obligations arising under the Deeds of Concession and – (c) the Libyan Government is legally bound to perform the Deeds of Concession and to give them their full force and effect.

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Libyan government argued: – with respect to nationalization, municipal law should govern and not international law.

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Several UN GA resolutions were invoked by both parties mainly related to expropriation and the standards set for compensation.

Texaco v. Libya, 17 ILM or 53 ILR 389, 1978 Issue: Whether or not the UN GA resolutions were binding to the parties. Held: • Yes. With regard to the legal value of UN GA resolutions, it must be determined on the basis of the circumstance under which they were adopted and an analysis of the principles they state, as in the case, voting pattern of the member states were specifically looked into. Further, to be binding, they must be accepted by the majority of members including those specially affected. • The UN GA Resolution No. 1803 had these characteristics, while those cited by the Libyan Gov’t indeed showed a vote of the majority, but it lacked the sufficient support by one group of specially affected nations. • The consensus by a majority of States belonging to the various representative groups indicate without the slightest doubt universal recognition of the rules incorporated. Thus customary law is based on state practice and opinio juris.

BP v. Libya, 53 ILR 297 Facts: • BP Exploration Company (BP) had a contractual agreement with the Government of Libya (Libya), which allowed BP to operate in Libya for the extraction, processing and export of petroleum under Concession 65 • However, Libya, on December 1971 passed the BP Nationalization Law, which nationalized the operations of BP in Concession 65, then transferred such rights to a new company, the Arabian Gulf Exploration Company. • As a result of the Nationalization Law which (which was rapidly implemented), BP’s operations in Consession 65 were brought to a complete halt and its staff were immediately excluded from the premises and facilities. The Arabian Gulf Exploration Company had taken over Concession 65.

BP v. Libya, 53 ILR 297 Issues: • WON the law that governs is international or municipal law. • WON the remedies of specific performance, restitution or damages is available.

BP v. Libya, 53 ILR 297 Held: 1. Clause 28 provided a governing system of law, that in the absence of principles common to the Libyan and International law, general principles of law, including those that may have been applied by international tribunals, should apply. As in the case, the general principles of a contract such as autonomy, mutuality, consensuality and obligatory force are observed. An obligation must be performed and the law between the parties must be complied with in good faith.

BP v. Libya, 53 ILR 297 2. Both specific performance(SP) and restitution is unavailable. SP is not available as under the general principles of law, no uniform principle provides for such option. Unavailability of restitution is not based on legal impossibility but impracticability. Under PIL and the BP Nationalization Law, the norm of payment is damages and compensation, respectively.

Saudi Arabia v. Arabian American Oil Company, 27 ILR 117 Facts: • The dispute refers to the meaning of Art. 1 of the Concession Agreement of 1933, as amended, which provided that the company had ‘the exclusive right … to explore, prospect, drill for, extract, treat, manufacture, transport, deal with, carry away and export petroleum… .’ Aramco entered into agreements with regular purchasers whereby the purchasers could themselves transport oil from certain Arabian outlets. • In 1954, the Saudi Arabian Government entered into an agreement with Aristotle Onassis to establish a private company, Saudi Arabian Maritime Tankers Co., Ltd. (SATCO), which was to transport Arabian oil. ARAMCO objected to SATCO tankers receiving priority in transporting oil, and invoked the arbitration provision of art. 1 of the Concession Agreement.

Saudi Arabia v. Arabian American Oil Company, 27 ILR 117 Issue: WON the general doctrines of private international law are applicable. Held: • In so far as the Tribunal is empowered to determine the law to be applied, it will do so by resorting to the general doctrine of Private International Law’; – that a concession agreement has a ‘double character …; it involves, • first, a State act and, • second, rights of ownership vested in the concessionaire’;

– that the rules of Moslem law ‘clearly demonstrate that the oil Concession of Aramco has a contractual character’; – that ‘[t]he Concession Agreement is thus the fundamental law of the Parties and the Arbitration Tribunal is bound to recognize its particular importance owing to the fact that it fills a gap in the legal system of Saudi Arabia with regard to the oil industry.

The Law on Treaties • Vienna Convention on the Law of Treaties (VCLT) is a treaty concerning the international law on treaties between states. • Only applies to treaties concluded between states. • Ratified by 113 states as of Jan. 2013 • Those that have not ratified: recognize it as a restatement of customary law and binding upon them as such.

• Important Dates: – – – –

Beginning of drafting: 1949 by International Law Commission Adoption: May 22, 1969 Opened for signature: May 23, 1969 Entered into force: January 27, 1980

Definition of Treaty • "an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” - VCLT

Qatar v. Bahrain, ICJ 1994 Doctrine: No particular form is prescribed for treaties thus exchange of notes between two heads of states are considered international agreements Facts: • Qatar brought suit against Bahrain in the International Court of Justice (ICJ) to determine whether two exchanges of letters between the countries constituted international agreements establishing a jurisdictional basis for the ICJ to hear all disputes between Qatar and Bahrain. • 1st letter was drafted by the Amirs of Qatar and Bahrain through the mediation of the King of Saudi Arabia in 1987. • The second document, titled “Minutes” had been signed in Qatar by the Ministers of Foreign Affairs of Bahrain in 1990, Qatar, and Saudi Arabia. • Qatar argued that the two documents were international agreements creating an obligation for Qatar and Bahrain to submit to the ICJ the whole of their dispute involving sovereignty over certain islands, sovereign rights over certain shoals, and the delimitation of a maritime boundary between the two States. • Bahrain argued that the two documents did not constitute international agreements, especially the second document as it is simply a record of negotiations and that Qatar did not have a jurisdictional basis for bringing a unilateral suit in the ICJ.

Qatar v. Bahrain, ICJ 1994 Issue: WON the two documents constituted international agreements. Held: • YES. The ICJ found that both the 1987 and 1990 exchanges and their resulting documents constituted international agreements as international agreements may take a number of forms and be given a diversity of names as supported by Art 2, par 1 of the Vienna Convention on the Law of Treaties (1969). • Document examination showed that the document did not merely give an account of discussions and summarize points of agreements or disagreements. Rather, it enumerated the commitments to which the parties consented thus, they created rights and obligations in international law for the Parties.

Air France vs Saks 470 US 392 Doctrine: If there is conflict in “official texts”, the language that is agreed by the parties as authoritative is followed. Facts: • Valerie Saks, suffered a permanent hearing loss in her left ear while she was a passenger on an international flight operated by the defendant airline, Air France, allegedly caused by normal cabin pressurization changes during landing. • Saks sued Air France for damages under Article 17 of the Warsaw Convention, which makes air carriers liable for injuries sustained by a passenger "if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking." • District court ruled in favor of Air France: injury caused by an air carrier's normal operation is not an "accident" (defined by precedent as "unusual or unexpected" happening) within the meaning of Article 17. • The CA reversed stating that airlines are imposed with absolute liability on airlines for injuries proximately caused by the risks inherent in air travel; and that normal cabin pressure changes qualify as an "accident" within the definition contained in Annex 13 to the Convention on International Civil Aviation as meaning "an occurrence associated with the operation of an aircraft."

Air France vs Saks 470 US 392 Issue: WON Air France is liable under the Warsaw Convention. Held: NO. Liability only arises if a passenger's injury is caused by an unexpected or unusual event or happening (definition of accident) that is external to the passenger and only when the passenger proves that an accident was the cause of the injury. • To determine the definition of accident, the Court, interpreted the treaty is the following manner: . "Treaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties." – France: Accident = a fortuitous, unexpected, unusual, or unintended event – Britain, Germany, US = event of a person's injury

Abaya v. Sec. Ebdane, G.R. No. 167919, February 14, 2007 Doctrine: Although International instruments differ from each other by title, they all have common features and international law has applied basically the same rules to all. Their rules apply to all of those instruments as long as they meet the common requirements. Facts: • Japan and the Philippines entered into a loan agreement made through the Japan Bank for International Cooperation(JBIC) for the rehabilitation of a bridge in Catanduanes . They evidenced such agreement with an Exchange of Notes. • All the necessary procedures on procurement under the agreement were followed by DPWH. (from bidding to contract award) • Abaya et al: NULLIFY resolution as neither of the agreements are considered a treaty nor an executive agreement. They stress that the parties must be 2 sovereigns or states in these agreements. What should therefore apply to the loan, is not what was set forth by the JBIC, but RA 9184 of the Philippine Procurement Act. • Sec. Ebdane, et al characterize foreign loan agreements, including the one at bar, as executive agreements and should be complied with pursuant to the fundamental principle in international law of pacta sunt servanda. They also cite Section 20, Article 7 of the Constitution which authorizes the president to contract or guarantee foreign loans in behalf of the Philippines with concurrence of the Monetary. They stand that the agreement is a contract and must be complied with in good faith.

Abaya v. Sec. Ebdane, G.R. No. 167919, February 14, 2007 Issue: WON the procurement loan is an executive agreement or a treaty. Held: • Executive Agreement. The Loan agreement taken in conjunction with the exchange of notes is an executive agreement. • An “exchange of notes” is a record of a routine agreement that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. An exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or Congress. • Although International instruments differ from each other by title, they all have common features and international law has applied basically the same rules to all. Their rules apply to all of those instruments as long as they meet the common requirements.