Int Law Finals

8/9/2019 Int Law Finals

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International Law

(Finals)


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In case of Conict between a treaty acustom, which would prevail?

In case a treaty comes after a particular custom, as betthe parties to the treaty, the treaty should Prevail

If custom develops after the treaty, the customs should

it being an expression of a later will


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Distinguish a treaty from an xecutive !gre

"reaty

needs concurrence of the senate involve basic political issues changes in national policy"reaty are permanent international agreements

xecutive agreements

#eed no concurrence from the senate$ust ad%ustments of details in carrying out well established national pol &erely temporary arrangements


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'ample uestion !n executive agreement was executed between

Philippines and the neighboring state"he senate of the Philippines too it upon itself to procu

certi*ed true copy of the executive agreement and afterdeliberating on it, declared by a unanimous vote , that tagreement was both unwise and against the best interescountry

Is the executive agreement binding from the standpoint

Philippine law

International law


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Is the VFA a treaty or a mere executagreement?

In the case of -ayan vs. /amora (0.1. no. 2345627, 9777), :F! was considered a treaty because senate concurred in via 9;3 votes of all its memb

-ut in the P8: of the


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ay a treaty be modi!ed without the consethe parties?

01+ #8

=P#+ if allowed by the treaty itself, two states mamodify a provision only insofar as their countries concerned.


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"rounds for invalidating a trea

rror Fraud

>orruption of a representative of a state

>oercion of a representative of a state

>oercion of a state by threat or use of force :iolation of $us >ogens norm


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#rror as a ground rror may be invoed as a ground for invalidating consent

only if the error relates to some fact or situation which was asthe state invoing the error to exist at the time when the treaconcluded, and that fact or situation formed an essential basconsent to be bound by the treaty

rror may not be invoed by the stateif it contributed to the error by its own conduct

if the circumstances where such as to put the state on noticepossible error


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Fraud as a ground

If a state has been induced to conclude a treaty fraudulent act of another negotiating 'tate, the may invoe the fraud by invalidating its consentbound by the treaty

&anipulation of the state representative throughcorruption may also be invoed as invalidating tstate?s consent.


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"rounds for termination of a tr"ermination of a treaty or withdrawal by a party in accordance wit

terms of the treaty

xtinction of one of the parties to the treaty

&utual agreement of all the parties to terminate the treaty

Denunciation of the treaty by one of the parties

'upervening impossibility of performance

>onclusion of a subse@uent treaty inconsistent between the same

:iolation of the treaty by one of the parties

Doctrine of 1ebus sic stantibus 8utbrea of war between the parties to the treaty

'everance of diplomatic or consular relations

"he emergence of new preemptory norm of general international renders void and terminates any existing treaty in conAict with su


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1e@uisites of 1ebus sic stanti

"he change must not have been used by the $arty invoindoctrine

"he doctrine cannot operate %etroactively

i.e it must not adversely aBect provisions which have alreadcomplied with prior to the vital change in situation

"he change must have been &nforseen or unforeseeable a

time of perfection a treaty"he doctrine must be invoed within a reasonable 'ime

"he duration of the treaty must be Inde*nite

"he change must be so (ubstantial that the foundation of treaty must have altogether disappeared.


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)hen %ebusic (tantibus is not applic

If the treaty establishes a boundary

If the fundamental change is a result of a breachparty invoing it or of an obligation under the treof another obligation owed to any other party to

treaty


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*Clean (tate+ rule

Chen one state ceases to exist and is succeededanother on the same territory, the newly indepestate is not bound to maintain in force, or to becparty to.

!ny treaty by reason only at the fact that at the

the succession of 'tates the treaty was in force irespect of the territory to which the succession orelates


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#xceptions to the *clean starule

Chen the new state agrees to be bound by the tmade by its predecessor

"reatise aBecting boundary regime (uti possidet


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Chat is the most favorednationclause

It may be de*ned in general as a pledge by acontracting party to a treaty to grant the other ptreatment not less favorable than that which hasor may be granted to the Emost favored amongcountries


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'enate -ill 293G was passed creating a %oint legexecutive commission to give on behalf of the seIts advice, consent and concurrence to treatise einto by the president "he -ill contains the guidebe followed by the commission in the discharge functions.

Is the bill constitutional

!nswer+ #8. "he bill is not constitutional. "he secannot delegate its power to concur th etreatiseby the president


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(uggested Answer

#o. as held in


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In case of conict between a treaty and a stwhich would prevail?

In case of conAict the court should harmoniJe bo*rst and if there exist an unavoidable contradictbetween them, the principle of lex posterior dero

priori (a treaty may repeal a statute and a staturrepeal a treat) will apply.

"he later one prevails, in our %urisdiction treatiseentered into by executive are rati*ed by the sentaes the form of the statute.


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(tate responsibility occurs

-y the direct in%ury to the rights of another state -y a wrongful act or omission which causes in%ur

alien

In this case the responsibility is owed to the 'tatwhich an alien is a national


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#lements of (tate %esponsibi

xistence of an act of omission which violated aobligation established by a rule of II in force betwstate responsible for the act or omission and the'tate.

"he unlawful act may be attributed to the 'tate legal person

Loss or damage must have resulted from the unact. -ut in inter'tate relations even acts aBectindignity of the state must be compensated by adreparation even if no pecuniary loss existK damanot a separate constituent element.


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#lements of (tate responsibilit

"he failure to ful*ll an Int?l law obligation is necessarya sucient element in the case of Int?l delicts.

"o create an automatic lin of responsibility between acting and the claimant state, an additional condition(damage suBered by claimant state) is re@uired

"his re@uirement is connected to the secondary rules

1esponsibility since it concerns its implementation ondiplomatic and %udicial plane

It is always the elements of damage suBered by one that entitles that 'tate to claim against another statecaused the damage and demand redress


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-octrine of (tate %esponsibility

Chen an in%uri is inAicted to an alien within a staterritory, there is a need to determinewhether thcan be held responsible for it

If a state violates a customary rule of internation

or treaty obligation, it commits an Einternationawrongful act


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)hat is an internationally wrongful

Chen conduct consisting of an action or omissio

is attributable to the 'tate under International la

>onstitutes a breach of an international obligati'tate


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.reach of an International /bligati

!. "he state must have been bound by an obligathe time of the breach

-. the -reach need not constitute an illegal act sas the act is not an conformity with a state?s

international obligations

(!rticles on state responsibility, !rt. 29)


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$rinciple of (trict 0iability

Fault is not necessary for state responsibility to bincurred

1e@uisites (-rownlie)

!gency

>ausal connection between the breachand the a

omission imputable to the 'tate


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)hen is culpa 1fault2 relevant?

Chen the breach results from acts of individualsemployed by the state or from the activities of lior trespassers on its territory

Chen the state engages in lawful activities, in wcase responsibility may result from culpa in execthese lawful activities

Chen determining the amount of the damages

Chen due diligence or liability for culpa is stipula treaty


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'he (tandard of -iligence

1elevant where the conduct od individual 'tate rather than state organs is concerned, 'tate1esponsibility arises if the state Efailed to exercidue diligence which could reasonably have prevsuch conduct (iggins)

-. Due diligence standard

8b%ective view+ that the 'tate?s ability to ful*ll isirrelevant

1elativist view+ that the 'tate must possess an a

ful*ll its obligations ("ehran hostages case)


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Forms of (tate 0iability

2. Direct liability

a. a state is in direct breach of its internaobligations

b. i.e. for the acts of 'tate organs in theicapacity

9. :icariously liability

a. "he state did not directly commit the iconduct, but it becomes liable for being negligentpreventing or punishing the act, and not for the a

b. i.e. for the acts of private individuals w


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Forms of (tate 0iability

-irect (tate %eponsibility3 Chere the internationaldelin@uency was committed by superior government oorgans lie the chief of state or the national legislature, will attach immediately as their acts may not be eBectivprevented or reversed under the constitution or laws of

Indirect (tate %esponsibility3 Chere the oBense is cby inferior government ocials or by private individuals'tate will be held liable only if, by reason of its indiBerenpreventing or punishing it, it can be considered to have in aBecting its commission.


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-octrine of (tate imputability

2. ! state is generealy responsible for the acts oforgans and ocials because these are agents state.

9. ! state is directly responsible for acts of privatindividuals only when they act as its agents.

3. Chen private individuals are not acting as statagents, a 'tate is responsible not for their actsdirectly, but for the 'tate?s own negligence in ntrying to stop the acts of the erring individuals

G. Chen they are not agents, and the state has n


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Acts attributable to the state

Acts of the state organs3 acts of state organscapacity provided by law or under instructions osuperiors.

Acts of other persons3 if the group of personsfact exercising elements of the governmental auin the absence of default of the ocial authoritie

circumstances such as to call for the exercise of elements of authority.

Acts of revolutionaries3 conduct of an insurremovement which becomes the new government'tate or part of a 'tate.


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0iability of Civilian 0eaders

>ivilian Leaders by contrast can be held reasonable if+

I. the subordinate was under the superior?s Ee4ective authocontrol+

II. "he subordinateMs criminal act were the result of the superi*failure to exercise control properly+

III. "he superior *5new or consciously disregarded, inform

that clearly indicated+ a crime was being or would be coI:. "he criminal activities *were within the e4ective respo

and control+of the superior, and *nally

:. "he superior did not tae all reasonable and necessary meaprevent or punish the crimes (article 94 (9))


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Acts of $rivate $ersons

"eneral rule a state is generally not responsible acts of individuals

#xeptions when the state adopts the acts of indivas its own, and thus becomes responsible for theirinternationally wrongful acts (!'1, !rticle 22)

A state adopts private acts when

"he state encourages these acts

"he individuals eBectively act as agents in performoBending acts

"he state endorses as its own the acts of individual


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(tate liability from negligence

ven without adoption a state may be indirectly for the acts of private individuals when it has aninternational obligations to exert eBorts to preveinternationally wrongful acts, or to prosecute themiscreants, and the state maliciously or negligeto do so.

'est Whether due diligence was exercised to pharm to foreigner and to foreign interest


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Acts of other states

Dependent 'tates

a) Chen the dependent state is so controlled thatcannot be deemed as retaining separate internpersonality, the dominant state is responsible facts

b) Chere the dependent state retain enough legapowers to maintain a separate personality andconducts its own foreign relations, whether thedominant state will be responsible for the depestate?s actions depend on the circumstances.


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6oint 'ortfeasors

a) Chen two states %ointly commit an internationawrongful act

b) "hough solidary liability should exist in principis little practice thereon.


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7auru vs8 Australia

Chere #auru *les a claim against !ustralia forexploiting the former?s phosphate resources

>ourt held that, even though it was possible tha!ustralia,


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0egal (tanding

98 (outhwest Africa cases ! state cannot sue particular right or interest unless that rght or inwas vested in that state by some instrument, orule of law (legal standing)

:8 .arcelona Case and #ast 'imor Case+ !ll st

may have standing to mae liability for the vioerga omnes obligation

3. -ut erga omnes standing did not tae away the%urisdictional re@uirement for the court to actparticularly the re@uirement that states must c

to the exercise of %urisdiction by a >ourt before


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-eclaratory relief

a) #ature+ ! declariotion by a >ourt that as to theillegality of an act constitutes a measure ofsatisfaction (or reparation in the broad sense)(brownie)

b) Chen available+

)Chen this is, or the parties deem this to be the pway to deal with the dispute

)Chen the ob%ect Eis not to give satisfaction for twrong received -80#I/ "LI!-ILI"O


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(atisfaction as a relief

a. #ature+ ! measure other than restitution orcompensation which an oBending state is bountae

b. 8b%ects+ often cumulative

.!pology and other acnowledgement of wrongdo

.Punishment of individuals concerned."aing of measures to prevent recurrence of the


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(atisfaction vs8 Compensation

Pecuniary satisfaction is meant to be a toen of and acnowledgemet of wrongdoing (a monetarEsorry)

>ompensation is intended to mae up for a repadamage done


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%estitution as a reief

a2 7ature involves wiping out all the conse@uenthe breach and reestablishing the situation whwould probably have existed had the act not bcommitted

b2 Forms

)0egal restitution declaration that an oBendinlaw, executive act, or agreement is invalid

)(peci!c %estitution+ restitution in ind or payma sum sorresponding to the value of the restitutithe award for losses sustained which would not

covered by the *rst two


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Chor;ow Factory Case

!ny breach of an agreement in ivolves an obligamae reparation

1eparation of wrong may consist in an indemnitycorresponding to the damage which the nationain%ured 'tate have suBered as a result of the act


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Compensation as a %elief

a. #ature+ Payment of money as a valuation of thdone

b. >horJow case+ !mount of the compensation mcorrespond to+

."he value which a restitution in ind would bear

."he award of damages for loss sustained which not be covered by restitution in ind of paymentplace of it.


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)hen a state may escape liability

2. If the wrong state consented to the oBending a

9. If the oBender state?s act was done in self defe

3. If it constitute a countermeasure taen againstwronged stateK

G. If it was done in compliance with the oBender

obligations under a peremptory norm

5. If the author of the wrongful act has no otherreasonable way, in a ituation of distress, to savlife or the lfe of a person entrusted to his case,the state caused the distress or the act ib @ues


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7o liability under state of necessi

a. !ct was only way to safeguard an essential interest from a

and eminent peril (!'1, !rt,95)

b. !ct must not seriously impair an essential interest of the sstates to which the obligation breached is owed, or of theinternational community as a wholeK

c. "he existence and imminence of such a peril must be dulyestablishedK

d. "he means employed to avert the purported peril must beare absolutely necessary to avert alleged danger

e. "he obligation violated must not exclude the possibility of necessity


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'ample problem

"he eJbollah, an armed militia in Lebanon was implicat

torture and rape of several Filipina 8FC?s Chat remedies are available to the victims

&ay the state of Lebanon be held liable under internatio

Answer


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'ample Problem

"he $apanese govt con*rm that during the CC9

Filipinas were among those conscripted as Ecomwomen (or prostitutes) for $apanese troops in vparts of !sia

"he $apanese govt has accordingly launched a gcampaign and has oBered the P govt substanti

assistance for a program that will promote througovernment and nongovernment organiJations women?s rights, child welfare, nutrition and famhealth care.

!n executive agreement is about to be signed fo

purpose


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'ample Problem

"he agreement includes a clause whereby the P

acnowledges that any liability to the Ecomfort wor their descendants are deemed covered by thereparations agreements signed and implementeimmediately after CC9

$uliano Iglesias, a descendant of now deceased c

woman sees your legal advice on the validity oagreement.


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!nswer

"he agreement is valid. "he comfort women and

descendants cannot assert individual claims aga$apan. !s stated in Davis and &oore vs. 1eagan 5G) the sovereign authority of a state to settle of its nationals against foreign countries has repbeen recogniJed

"his may be made without the consent of the naor even wthout consultation wth them. 'ince thecontinued amity between a 'tate and other counmay re@uire a satisfactory compromise of mutuamay only be made by executive agreement

' l P bl


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'ample Problem

In a raid conducted by rebels in a >ambodian to

!merican businessman who has been a longtimeresident of the place was caught by the rebels arobbed of his cash and other valuable personalbelongings

Cithin minutes, 9 trucloads of govt troops arriv

prompting the rebels to withdraw. -efore Aeeingshot the !merican casing him physical in%uries.

' l P bl


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'ample Problem

0ovt troopers immediately launched pursuit ope

and illed several rebels #o cash or other valuable property taen from th

!merican businessman was recovered

In an action for indemnity *led by the


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'ample Problem

2. Is the contention of the >ambodian governmen

correct xplain.

9. 'uppose the rebellion is successful and a new ggains control of the entire state, replacing the law

that was toppled may the new govt be held respofor the in%uries or losses suBered by the !merican-usinessman

!


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!nswers

2. Oes, the contention of the >ambodian govt is co


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!nswer

9. "he new govt maybe held responsible if it succ

overthrowing the govt

:ictrious rebel movements are responsible for thacts of their forces during the course of the rebe

"he acts of the rebels are imputable to them whassumed as duly constituted authorities of the s


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Int Law Finals

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